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INSTITUTES 
 
 OF 
 
 AlERICAN LAW, 
 
 BY JOHN BOUVIER. 
 
 In societate civili, aut lex aut Tis valet. — Bacon. 
 Ce qui est bien classe, est a moitie su. — Duval 
 
 VOL. I. 
 
 / PHILADELPHIA: 
 
 PUBLISHED BY ROBERT E. PETERSON & CO. 
 
 124 ARCH STREET. 
 
 1854. 
 
l3^/f3^ 
 
 Entered according to. Act of Congress, in the year 1851, by 
 
 JOHN BOUVIER, 
 
 in the Clerk's Office of the District Court of the Eastern District of Penn- 
 sylvania. 
 
 
 DEACON & PETERSON, PRINTERS, 
 
 66 SOUTH THIE.B STREET. 
 
TO THE HONORABLE 
 
 ROGEE B. TANEY, LL. D. 
 
 CHIEF JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, 
 
 THIS WORK 
 
 IS, 
 
 WITH HIS PERMISSION, 
 
 MOST RESPECTFULLY DEDICATED, 
 
 AS A TOKEN 
 
 OF THE GREAT REGARD ENTERTAINED FOR HIS INTEGRITY AS A JUDGE, HIS 
 LEARNING AS A JURIST, AND HIS VIRTUES AS A MAN, 
 
 THE AUTHOR. 
 
PREFACE 
 
 Whenever a writer submits a literary work to the public, 
 he tacitly declares that it is his conviction such work deserves 
 to be examined and read, and that it will place the objects of 
 inquiry in a new light ; for, unless such are the views he enter- 
 tains, he will not trouble himself to write, nor others to read, 
 what can be of no use. The author has, therefore, no apology 
 to make, nor motive to offer, as an inducement for publishing 
 this work, but the one which has influenced him throughout, 
 in the course of his labor, that of being useful. He hopes he 
 has not labored in vain. 
 
 Most lawyers have felt the want of a preliminary work to 
 serve the young American student as a guide in the labyrinth 
 of jurisprudence ; as an instructor to give him a general view 
 of the several parts of this juridical science ; to mark the 
 objects of each, and to point out the natural dependence which 
 unites them : a work tending to establish a method which should 
 be adopted in the study of the law ; to point out the numerous 
 links of the chain which unites the ancient with the modern 
 law, which binds the past with the present, and which by its 
 nature must forever remain indestructible. A work which 
 would thus elevate the science of the law in the sight of youth, 
 and impress a character of unity upon it, would exercise a 
 happy influence on the minds of the students, develop their 
 moral and intellectual faculties, and be a blessing to them. 
 
viii PREFACE. 
 
 But it is far less difficult to describe what the legal edifice 
 should be, and to state what is required for its construction, 
 than to select the materials of which it should be composed, 
 and to make such a disposition of them in the building as 
 would render the structure at once solid, elegant, and every 
 way fitted for the purpose for which it is intended. 
 
 On entering on his profession, the American student is dis- 
 couraged by being obliged to study laws which are not his 
 own, and which do not belong to the present age, except as 
 matter of history. It requires an effort to read even the elegant 
 Blackstone, and, when studied, it must be forgotten, because 
 the laws on which that author has so beautifully commented, 
 are not the laws which the young aspirant seeks to know — they 
 are not those of his country. It is true, noble efforts have been 
 made by American writers to explain our laws, and to them 
 the profession must be greatly indebted ; but the commentaries 
 which have been so liberally bestowed, are better adapted to the 
 use of those who are already good lawyers, than to teach one 
 who has every thing to learn. 
 
 The author cannot hope to have made a perfect work, and 
 supplied, in this respect, all the deficiencies and the wants of 
 the profession ; his aim has been an approximation to what a 
 work should be, which might, in some degree, deserve the title 
 of Institutes of American Law. He has endeavored to reduce 
 the whole to a strict method, and, by a correct classification, to 
 impress upon the mind of the student the objects of his inquiry ; 
 for, " what is well classified is half known." It seemed to him 
 that jurisprudence, as much as any other science, required this 
 method ; and while all kinds of human knowledge are now 
 taught in this manner, the law should not be an exception. 
 
 In the execution of his work, the author has spared no pains 
 to classify his materials in the most natural manner ; he has not 
 followed any known plan, and, it is possible, that with more 
 
PREFACE. ix 
 
 talents and knowledge, he might greatly improve upon that 
 which he has adopted. He hopes, however, that with a very 
 full table of contents, the reader will be at no great difficulty 
 to comprehend it. 
 
 While it has been his constant object to show what the law 
 actually is, he has ventured, not unfrequently, to state what it 
 was, and from what source it flows. Whenever a comparison 
 could be made with advantage, the foreign laws, within the 
 reach of the author, have been consulted, and their agreement 
 or discord with our own, pointed out. He has made free use 
 of the Roman or civil law, whenever he found its principles 
 applicable to our own jurisprudence, and by a frank acknow- 
 ledgment of the source whence so many just rules flow, he has, 
 as far as in his power, done what he could to avoid the reproach- 
 ful accusation which some continental writers of Europe have, 
 with perhaps too much truth, charged against the English 
 lawyers, of constantly pillaging the Roman law, without ever 
 citing it. (a) If all the principles found in Bracton and Fleta, 
 Fortescue and Blackstone, and in the treatises on commercial 
 law and equity, and many of the judgments of our courts, 
 which have been borrowed from that system, without giving it 
 credit, were expunged from those authors, their works and 
 judgments would be deprived of their greatest ornaments. 
 
 In laying down principles and rules, the author has been 
 careful to give correct definitions, and when these rules are 
 subject to exceptions, he has pointed them out in as clear and 
 simple language, as it has been in his power to employ. He 
 has not thought it necessary to extend his researches into all 
 the ramifications of the law, nor his inquiries into details which 
 
 (a) On reconnait la, et a chaque page, dans Blackstone, le faire habi- 
 tuel des Anglais, qui pillent incessamment le droit remain, et ne le citent 
 jamais. Duval, Le Droit dans ses Maximes, p. 24, note. 
 
X PREFACE. 
 
 would confuse the reader -without enlightening him: when 
 there have heen conflicting decisions, a reference has been made 
 to authorities, to enable the student to examine the foundation 
 upon which they rest. He has, however, shown the sources of 
 the law, and traced the stream down its current. His chief 
 aim has been to poi,nt out its rules and maxims, as principal 
 landmarks to the student, and to enable him, by keeping a 
 constant eye upon these summits of the law, to pursue his 
 onward course, without ever losing himself; for these rules, 
 " after having inspired the law, still remain with it, and in its 
 midst, in some sort, as the lamp in the sanctuary, enlightening 
 the parts where the law applies, and pointing out those which 
 it cannot reach." 
 
 As this is intended as an American work, and for American 
 lawyers, the principal positions laid down have been supported, 
 whenever practicable, by reference to American authorities ; 
 and when there has been a difference in the several states of 
 the Union, either in consequence of their statutory provisions, 
 or the decisions of their courts, it has been pointed out and 
 explained, whenever the subject was of sufficient importance 
 to require it. Upon an examination, however, it will be found 
 that English precedents have not been overlooked ; on the con- 
 trary, they have been cited whenever they were important, or 
 when American authorities could not be found applicable to the 
 case. 
 
 While it is expected that this work will be useful to the 
 student, it is hoped the practicing lawyer may find it a convenient 
 manual, as a book of reference, in practice. To render it useful 
 to this class of readers, the author has spared no pains to make 
 a perfect index, so as to save the time of the practitioner. 
 
 Philadelphia, June, 1851. 
 
ABBREVIATIONS. 
 
 [The following abbreviations are copied from Bouvier's Law Dictionary.] 
 
 A, a, the first letter of the alphabet, is sometimes used in the 
 ancient law books to denote that the paging is the first of 
 that number in the book. As an abbreviation, A is used for 
 anonymous. 
 
 A. & A. on Corp. — Angell and Ames on Corporations. Some- 
 times cited Ang. on Corp. 
 
 A. R. — Anonymous Reports, printed at the end of Bendloe's 
 Reports. 
 
 A. D. — Anno Domini ; in the year of our Lord. 
 
 A. & E. — Adolphus and Ellis' Reports. 
 
 A. & E. N. S. — Adolphus and Ellis' Queen's Bench Reports, 
 New Series, commonly cited Q. B. 
 
 A. & F. on Fixt. — Amos and Ferard on Fixtures. 
 
 A. K. Marsh.— A. K. Marshall's (Kty.) Reports. 
 
 Ab. or Abr. — Abridgment. 
 
 Abr. Ca. Eq. — Abridgment of Cases in Equity. 
 
 Abs. — Absolute. 
 
 Ab. Sh. — Abbott on Shipping. 
 
 Ace. — Accord or agrees. 
 
 Act. — Acton's Reports. 
 
 Act. Reg. — Acta Regia 
 
 Ad. Eject. — Adams on Ejectment. 
 
 Ad. & Ell.— Adolphus and Ellis' Reports. 
 
 Ad. fin. — Ad finem. At or near the end. 
 
 Ads. — Ad sectum, vide Ats. 
 
 Adams' Doct. of Eq. — Adams' Doctrine of Equity. 
 
 Addam's R. — Addam's Ecclesiastical Reports. In E. Eccl. Rep. 
 
 Addis, on Contr. — Addison on the Law of Contracts and on 
 Parties to Actions ex contractu. 
 
 Addis. R. — Addison's Reports. 
 
 Admr. — Administrator. 
 
 Ady. C. M.— Adye on Courts Martial. 
 
 Aik. R. — Aiken's Reports. 
 
 Al. — Aleyn's Cases. 
 
 Al. — Alinea. Al. et. — Et alii, and others. 
 
xii ABBREVIATIONS. 
 
 Al. & N. — Alcock and Napier's Reports. 
 
 Ala. R. — Alabama Reports. 
 
 Ale. Reg. Cas. — Alcock's Registration Cases. 
 
 Aid. & Van Hoes. Dig. — A Digest of the Laws of Mississippi, 
 by T. J. Fox Alden and J. A. Van Hoesen. 
 
 Aldr. Hist. — Aldridge's History of the Courts of Law. 
 
 Alis. Prin. — Alison's Principles of the Criminal Law of Scot- 
 land. 
 
 All. & Mar. Tr.— Allen and Morris' Trial. 
 
 Alley. L. D. of Mar. — Alleyne's Legal Degrees of Marriage 
 considered. 
 
 Alln. Part. — Allnat on Partition. 
 
 Am. — America, American, or Americana. 
 
 Am. Lead. Cas. — American Leading Cases, by Hare and Wallace. 
 
 Amb. — Ambler's Reports. 
 
 Am. & Fer. on Fixt. — Amos and Ferard on Fixtures. 
 
 Amer. — America, American, or Americana. 
 
 Amer. Dig. — American Digest. 
 
 Amer. Jur. — American Jurist. 
 
 An. — Anonymous. 
 
 And. — Anderson's Reports. 
 
 Ander. Ch. War. — Anderdon on Church Wardens. 
 
 Andr. — Andrews' Reports. 
 
 Ang. on Adv. Enj. — Angell's Inquiry into the rule of law which 
 creates a right to an incorporeal hereditament, by an adverse 
 enjoyment of twenty years. 
 
 Ang. on Ass. — Angell's Practical Summary of the Law of 
 Assignments in trust for creditors. 
 
 Ang. on B. T. — Angell on Bank Tax. 
 
 Ang. on Corp. — Angell on the Law of Private Corporations. 
 
 Ang. on Limit. — Angell's Treatise on the Limitation of Actions 
 at Law, and Suits in Equity. 
 
 Ang. on Tide Wat. — Angell on the right of property in Tide 
 Waters. 
 
 Ang. on Water Courses. — Angell on the common law in rela- 
 tion to Water Courses. 
 
 Ann. — Anne ; as 1 Ann. c. 7. 
 
 Anna. — Annaly's Reports. 
 
 Annesl. on Ins. — Annesley on Insurance. 
 
 Anon. — Anonymous. 
 
 Anstr. — Anstruther's Reports. 
 
 Anth. L. Stud. — Anthon's Law Student. 
 
 Anth. N. P. C— Anthon's Nisi Prius Cases. 
 
 Anth. Shep. — Anthon's edition of Sheppard's Touchstone. 
 
 Ap. Justin. — Apud Justinianum, or Justinian's Institutes. 
 
 App. — Apposition. 
 
 Appx. — Appendix. 
 
ABBREVIATIONS. xiii 
 
 Arch. — Archbold. Arch. Civ. PI. — Archbold's Civil Pleadings. 
 Arch. Cr. PI. — Archbold's Criminal Pleadings. Arch. Pr. — 
 Archbold's Practice. Arch. B. L. — Archbold's Bankrupt 
 Law. Arch. L. & T. — Archbold on the Law of Landlord 
 and Tenant. Arch. N. P. — Archbold's Law of Nisi Prius. 
 
 Arg. — Argumento by an argument drawn from such a law. It 
 also signifies arguendo. 
 
 Arg. Inst. — Institution au Droit Fran^ais, par M. Argou. 
 
 Ark. Rep. — Arkansas Reports. See Pike's Rep. 
 
 Ark. Rev. Stat. — Arkansas Revised Statutes. 
 
 Am. on Ins. — Arnould on Insurance. 
 
 Art. — Article. 
 
 Ashm. R. — Ashmead's Reports. 
 
 Aso &Man. Inst. — Aso and Manuel's Institutes of the Laws of 
 Spain.. 
 
 Ass. or Lib. Ass. — Liber Assissarium, or Pleas of the Crown. 
 
 Ast. Ent. — Aston's Entries. 
 
 Atherl. on Mar. — Atherley on the Law of Marriage and other 
 Family Settlements. 
 
 Atk. — Atkyn's Reports. 
 
 Atk. P. T. — Atkyn's Parliamentary Tracts. 
 
 Atk. on Con. — Atkinson on Conveyancing. 
 
 Atk. on Tit. — Atkinson on Marketable Titles. 
 
 Ats. in practice, is an abbreviation for the words " at suit of," 
 and is used when the defendant files any pleadings ; for ex- 
 ample : when the defendant enters a plea he puts his name 
 before that of the plaintiff, reversing the order in which they 
 are on the record. C. D. (the defendant,) ats. A. B. (the 
 plaintiff.) 
 
 Aust. on Jur. — The Province of Jurisprudence determined, by 
 John Austin. 
 
 Auth. — Authentica, in the Authentic ; that is, the Summary of 
 some of the Novels of the civil law inserted in the code under 
 such a title. 
 
 Ayl. — AylifFe's Pandect. 
 
 Ayl. Parerg. — AylifFe's Parergon juris canonici Anglicani. 
 
 Azun. Mar. Law. — Azuni's Maritime Law of Europe. 
 
 B, b, is used to point out that a number used at the head of a 
 page to denote the folio, is the second number of the same 
 volume. 
 
 B. B.— Bail Bond. 
 
 B. or Bk.— Book. 
 
 B. & A. — Barnewall and Alderson's Reports. 
 
 B. & B.— Ball and Beatty's Reports. 
 
 B. C. R. — Brown's Chancery Reports. 
 
 B. Eccl. L. — Burns' Ecclesiastical Law. 
 
xiv ABBREVIATIONS. 
 
 B. Just. — Burns' Justice. 
 
 B. N. C. — Brooke's New Cases. Vide Bellew. post. 
 
 B. C. P. — or Bro. Pari. Cas. — Brown's Parliamentary Cases. 
 
 B. & P. or Bos. & Pull. — Bosanquet and Puller's Reports. 
 
 B. R. or K. B.— King's Bench. 
 
 B. Tr.— Bishop's Trial. 
 
 Bab. on Auct. — Babington on the Law of Auctions. 
 
 Bab. Set Off.— Babington on Set Off and Mutual Credit, 
 
 Bac. Abr. — Bacon's Abridgment. A new Abridgment of the 
 
 Law. By Matthew Bacon. With considerable additions by 
 
 Henry Gwillin ; and with the additions of the later English 
 
 and the American decisions. This book is generally cited 
 
 by the page and sometimes by the title. An edition of this 
 
 work has been published, with notes to American law and 
 
 decisions, by the author of this work. 
 Bac. Comp. Arb. — Bacon's (M.) Complete Arbitrator. 
 Bac. El. — Bacon's Elements of the Common Law. 
 Bac. Got. — Bacon on Government. 
 Bac. Law Tr. — Bacon's Law Tracts. 
 Bac. Leas. — Bacon (M.) on Leases and Terms of Years. 
 Bac. Lib. Reg. — Bacon's (John) Liber Regis, vel Thesaurus 
 
 Rerum Ecclesiasticarum. 
 Bac. Uses. — Bacon's Reading on the Statute of Uses. This is 
 
 printed in his Law Tracts. 
 Bach. Man. — Bache's Manual of a Pennsylvania Justice of the 
 
 Peace. 
 Bail. R. — Bailey's Reports. 
 
 Bain, on M. & M. — Bainbridge on Mines and Minerals. 
 Baldw. R. — Baldwin's Circuit Court Reports. 
 Ball. & Beat. — Ball and Beatty's Reports. Reports of Cases 
 
 in the High Court of Chancery in Ireland during the time of 
 
 Lord Manners, from 1807 to 1815. 
 Ballan. Lim. — Ballantine on Limitations. 
 Banc. Sup. — Upper Bench. 
 Barb. Eq. Dig. — Barbour's Equity Digest. 
 Barb. Cr. PI. — Barbour's Criminal Pleading. 
 Barb. Pract. in Ch. — Barbour's Treatise on the Practice of the 
 
 Court of Chancery. 
 Barb. R. — Barbour's Chancery Reports. 
 Barb. Grot. — Grotius on War and Peace, with notes by Bar- 
 
 beyrac. 
 Barb. Puff. — Puffendorf's Law of Nature and Nations, with 
 
 notes by M. Barbeyrac. 
 Barb, on Set Off. — Barbour on the Law of Set Off, with an 
 
 appendix of precedents. 
 Barn. C. — Barnardiston's Chancery Reports. Report of Cases 
 
 in Chancery. By Thomas Barnardiston. Lord Mansfield 
 
ABBREVIATIONS. xv 
 
 absolutely forbid the citing of this book, for it would be only- 
 misleading students to put them upon reading it. 2 Burr. 
 
 1142, in margin. 
 Barn. — Barnardiston's K. B. Reports. 
 Barn. & Aid. — Barnewall and Alderson's Reports. Vide B. & 
 
 A. In E. C. L. R. 
 Barn. & Adolph. — Barnewall & Adolphus' Reports. In E. C. 
 
 L. R. 
 Barn. & Cress. — Barnewall & Cresswell's Reports. In E. C. 
 
 L. R. 
 Barn. Sher. — Barnes' Sheriff. 
 Barnes. — Barnes' Notes of Practice. 
 
 Barr. Obs. Stat. — Barrington's Observations on the more An- 
 cient Statutes. 
 Barr. Ten. — Barry's Tenures. 
 Bart. El. Conv. — Barton's Elements of Conveyancing. Bart. 
 
 Prec. Conv. — Barton's Precedents of Conveyancing. Bart. 
 
 S. Eq. — Barton's Suit in Equity. 
 Bat. on Contr. — Batten on the Law of Contracts relating to 
 
 Specific Performance. 
 Batty's R. — Batty's Reports of cases determined in the K. B. 
 
 Ireland. 
 Bay's R. — Bay's Reports. 
 Bayl. Bills. — Bayley on Bills. 
 Bayl. Ch. Pr. — Bay ley's Chamber Practice. 
 Beam. Ne Exeat. — Brief view of the writ of Ne Exeat Regno, 
 
 as an equitable process, by J. Beames. 
 Beam. Eq. — Beames on Equity Pleading. 
 Beam. Ord. Chan. — Beames' General Orders of the High 
 
 Court of Chancery, from 1600 to 1815. 
 Beat. R. — Beatty's Reports determined in the High Court of 
 
 Chancery, in Ireland. 
 Beav. R. — Beavan's Chancery Reports. 
 Beawes. — Beawes' Lex Mercatoria. 
 Beck's Med. Jur. — Beck's Medical Jurisprudence. 
 Bee's R. — Bee's Reports- 
 Bell on H. & W. — Bell on the Law of Property as arising 
 
 from the relation of husband and wife. 
 Bell's Com. — Bell's Commentaries on the Laws of Scotland, 
 
 and on the Principles of Mercantile Jurisprudence. 
 Bell. Del. U. L. — Beller's Delineation of Universal Law. 
 Bell's Diet. — Dictionary of the Law of Scotland. By Rob. Bell. 
 Bell's Med. Jur. — Bell's Medical Jurisprudence. 
 Bellew. — Bellewe's Cases in the time of K. Richard II. Bel- 
 
 lewe's Cases in the time of Henry VIIL, Edw. VI., and Q. 
 
 Mary, collected out of Brooke's Abridgment, and arranged 
 
 under years, with a table, are cited Brooke's New Cases. 
 
xvi ABBREVIATIONS. 
 
 Bellingh. Tr.— Bellingham's Trial. 
 
 Belt'sSup. — Belt's Supplement. Supplement to the Reports 
 
 in Chancery of Francis Vesey, senior, Esq. during the time 
 
 of Lord Ch. J. Hardwicke. 
 Belt's Ves. sen. — Belt's edition of Vesey senior's Reports. 
 Benl. — Benloe & Dalison's Reports. Reports and Pleadings in 
 
 Common Pleas, in the reigns of K. Henry VII., Henry VlII., 
 
 Edward VI., and Queens Mary and Elizabeth. By William 
 
 Benloe and William Dalison. See New Benl. 
 Ben. on Av. — Benecke on Average. 
 Ben. Adm. Pr. — Benedict's Admiralty Practice. 
 Benn. Diss. — Bennet's Short Dissertation on the nature and 
 
 various proceedings in the Master's Office, in the Court of 
 
 Chancery. Sometimes this book is called Benn. Pract. 
 Benn. Pract. — See Ben. Diss. 
 
 Benth. Ev. — Bentham's Treatise on Judicial Evidence. 
 Best on Ev. — Best on the Principles of Evidence. 
 Best on Pres. — Best's Treatise on Presumptions of Law and 
 
 Fact. 
 Bett's Adm. Pr. — Bett's Admiralty Practice. 
 Bev. on Horn. — Bevil on Homicide. 
 Bill, on Aw. — Billing on the Law of Awards. 
 Bing. — Bingham. Bing. Inf. — Bingham on Infancy. Bing. 
 
 on Judg. — Bingham on Judgments and Executions. Bing. 
 
 L. & T. — Bingham on the Law of Landlord and Tenant. 
 
 Bing. R.— Bingham's Reports. In E. C. L. R. Bing. N. 
 
 C. — Bingham's New Cases. 
 Binn. — Reports of Cases adjudged in the Supreme Court of 
 
 Pennsylvania. By Horace Binney. 
 Bird on Conv. — Bird on Conveyancing. Bird L. & T. — Bird 
 
 on the Laws respecting Landlords, Tenants and Lodgers. 
 
 Bird's Sol. Pr.— Bird's Solution of Precedents of Settle- 
 ments. 
 Biret, De I'Abs. — Traite de I' Absence et de ses effets, par M. 
 
 Biret. ^ 
 
 Biss. on Est. or Biss. on Life Est. — Bissett on the Law of 
 
 Estates for Life. 
 Biss. on Partn. — Bissett on Partnership. 
 Bl. — Blount's Law Dictionary and Glossary. 
 Bl. Coram, or Comm. — Commentaries on the Laws of England, 
 
 by Sir WilHam Blackstone. 
 Bl. Rep. — SirWm. Blackstone's Reports. 
 Bl. H.— Henry Blackstone's Reports, sometimes cited H. Bl. 
 Black. L. T. — Blackstone's Law Tracts. 
 Blackb. on Sales.— Blackburn on the effect of the Contract of 
 
 Sale. 
 Blackf. R.— Blackford's Reports. 
 
ABBREVIATIONS. xvii 
 
 Blak. Ch. Pr. — Blake's Practice of the Court of Chancery of 
 
 the State of New York. 
 Blan. on An. — Blaney on Life Annuities. 
 Bland's Ch. R. — Bland's Chancery Reports. 
 Blansh. Lim. — Blanshard on Limitations. 
 Bligh. R. — Bligh's Reports of Cases decided in the House of 
 Lords. There are two series of these Reports ; the first con- 
 tains three volumes, and the last ten, and is still continued. 
 Blount. — Blount's Law Dictionary and Glossary. 
 Bo. R. Act. — Booth on Real Actions. 
 
 Boh. Dec. — Bohun's Declarations. Boh. Eng. L. — Bohun's 
 English Lawyer. Boh. Priv. Lon. — Bohun's Privilegia Lon- 
 dini. 
 Boote. Boote's Ch. Pr. — Boote's Chancery Practice. Boote's 
 
 S. L. — Boote's Suit at Law. 
 Booth's R. A. — Booth on Real Actions, 
 Borthw. on Lib. — Borthwick on the Law of Libels. Borth, 
 
 L. L. — Borthw. on the Law of Libels. 
 Bos. &• Pull.— Bosanquet and Puller's Reports. Vide B. & P. 
 Bosc. on Conv. — Boscowen on Convictions. 
 Bott. — Bott's Poor Laws. 
 
 Bouch. Inst. Dr. Mar. — Boucher, Institution au Droit Maritime. 
 Boulay Paty, Dr. Com. — Cours de Droit Commercial Maritime, 
 
 par P. S. Boulay Paty. 
 Bousq. Diet, de Dr. — Bousquet, Dictionnaire de Droit. 
 Bouv. L. D. — Bouvier's Law Dictionary. 
 Bouv. Inst. — Bouvier's Institutes of American Law. 
 Bowl, on Lib. — Bowles on Libels. 
 Br. or Brownl. — Brownlow's Reports. 
 Br. or Br. Ab. — Brooke's Abridgment. 
 
 Bra. — Brady's History of the Succession of the Crown of Eng- 
 land, etc. 
 Brae. — Bracton's Treatise on the Laws and Customs of Eng- 
 land. Vide, as to character of this book, Fortesc. 419; 
 Jones on Bailm. 75; 1 Show. 121 ; Fitz. Ab. Gard. 71. 
 Bra. Princ. — Branche's Principia Legis et jEquitatis. 
 Brack. L. Misc. — Brackenridge's Law Miscellany. 
 Bradb. — Bradby on Distresses. 
 Bradl. P. B.— Bradley's Point Book. 
 Bran. Prin. or Bran. Max. — Branche's Principia Legis iEqui- 
 
 tatis, being an alphabetical collection of maxims, etc. 
 Brayt. R. — Brayton's Reports. 
 Breese's R. — Breese's Reports. 
 Brev. Sel. — Brevia Selecta, or Choice Writs. 
 Bridg. — Bridgman's Reports. Reports from 12 to 19 K. James. 
 By Sir John Bridgman. 
 Vol. I. b ~ 
 
xviii ABBREVIATIONS. 
 
 Brid. Dig. Ind. — Bridgman's Digested Index. Brid. Leg. 
 Bib. — Bridgman's Legal Bibliography. Brid. Conv. — Bridg- 
 man's Precedents of Conveyancing. Brid. Refl. — Bridgman's 
 Reflections on the Study of the Law. Bridg. Synth. — -Bridg- 
 man's Synthesis. Bridg. Thes. Jur. — Bridgman's Thesaurus 
 Juridicus. 
 Bridg. O. — Orlando Bridgman's Reports. 
 Bridg. The. Jur. — Bridgman's Thesaurus Juridicus. 
 Bright, on Costs. — Brightly on Costs. 
 Brightl. Rep. — Brightly's Reports. 
 Bright on H. & W. — Bright on Hushand and Wife. 
 Britton. — Treatise on the Ancient Pleas of the Crown. 
 Bro. or Brownl. — Brownlow's Reports. 
 Bro. Ab. — Brooke's Abridgment. 
 
 Bro. A. & C. L. — Brown's Admiralty Civil Law. This beok, 
 though far too brief, deserves to be popular. Coop. Just. 
 670. 
 Bro. C. C. — Brown's Chancery Cases. Reports in Chancery 
 from 18 Geo. III. 1788, to 34 Geo. III. 1794. By William 
 Brown. 
 Bro. Off. Not. — A Treatise on the Office and Practice of a 
 Notary in England, as connected with Mercantitle Instru- 
 ments, etc. By Richard Brooke. 
 Bro. P. C. — Brown's Parliamentary Cases. Reports of Cases 
 upon Appeals and Writs of Error in the High Court of Par- 
 liament. By Josiah Brown. 
 Bro. Read. — Brooke's Reading on the Statute of Limitations. 
 Bro. on Sales. — Brown on Sales. 
 Bro. V. M. — Brown's Vade Mecum. 
 
 Brock. R. — Brockenbrough's Reports of Chief Justice Mar- 
 shall's Decisions. 
 Brod. & Bing. — Broderip and Bingham's Reports. In E. C. L. R. 
 Broom on Part. — Broom on Parties to Actions. 
 Brownl. Rediv. or Brownl. Ent. — Brownlow Redivivus. 
 Bruce M. L. — Bruce's Military Law. 
 Buck's Ca.— Buck's Cases. Cases in Bankruptcy in 1817 1818 
 
 ByJ. W. Buck. 
 Bull, or Bull. N. P.— -Buller's Nisi Prius. When BuUer wrote 
 his N. P. he was a young man, and intended his book to 
 carry with him on the circuit, for his own use. 10 Sero- & 
 R. 49. ^' 
 
 Bulst.— Bulstrode's Reports. Reports in K. B. in the reigns 
 of King James I. and Charles I. ; in three parts. By Edward 
 Bulstrode. 
 Bunb.— Bunbury's Reports. Lord Mansfield says, "Mr. Bun- 
 bury never meant that those cases should be published • they 
 are very loose notes." 5 Burr. 2658. ' 
 
ABBREVIATIONS. xix 
 
 Burge Col. Law. — Burge's Colonial Law. 
 
 Burge Confl. of Law. — Burge on the Conflict of Laws. 
 
 Burge on Sur. — Burge's Commentaries on the Law of Surety- 
 ship, etc. 
 
 Burge For. Law. — Burge on Foreign Law. 
 
 Burlam. — Burlamaqui's Natural and Political Law. 
 
 Burns' L. D. — Burns' Law Dictionary. 
 
 Burns' Just. — Burns' Justice of the Peace. 
 
 Burns' Eccl. Law, or Burns' E. L. — Burns' Ecclesiastical Law. 
 
 Burn. C. L. — Burnett's Treatise on the Criminal Law of Scot- 
 land. 
 
 Burn. Com. — Burnett's Commentaries on the Criminal Law of 
 Scotland. 
 
 Burr. — Burrow's Reports. 
 
 Burr.vL. D. — Burrill's Law Dictionary. 
 
 Burr. Pract. — Burrill's Practice. 
 
 Burr. Sett. Cas. — Burrow's Settlement Cases. 
 
 Burr's Tr.— Burr's Trial. 
 
 Burt. Man. — Burton's Manual of the Law of Scotland. The 
 work is in two parts, one relating to public law, and the 
 other to the law of private rights and obligations. The 
 former is cited Burt. Man. PI. ; the latter, Burt. Man. P. R. 
 
 Burt, on Real Prop. — Burton on Real Property. 
 
 Butl. Hor. Jur. — Butler's Horae Juridicae Subsecivae. 
 
 C. — Codex, the Code of Justinian. C. — Code. C. — Chancellor. 
 
 C. & A. — Cooke and Alcock's Reports. 
 
 C. B. — Communi Banco, or Common Bench. 
 
 C. C. — Circuit Court. 
 
 C. C. — Cepi Corpus. C. C. and B. B. — Cepi Corpus and Bail 
 Bond. 
 
 C. C. or Ch. Cas. — Cases in Chancery, in three parts. Most of 
 these cases, in 2 C. C. are grossly misreported, said per Lord 
 Loughborough, 1 H. Bl. 332. 
 
 C. C. C. or Cr. Cir. Com. — Crown Circuit Companion. 
 
 C. C. & C. — Cepi corpus et committitur. 
 
 C. C. E. or Cain. Cas. — Caines' Cases in Error. 
 
 C. D. or Com. Dig. — Comyn's Digest. This book is cited in 
 this manner : Com. Dig. Arbitrament, (A. 2,) which sig- 
 nifies Comyn's Digest, title Arbitrament, division (A. 2.) 
 Sometimes the volume and page are cited as follows: 2 Com. 
 Dig. 100. 
 
 C. & D. C. C. — Crawford and Dix's Criminal Cases. 
 
 C. & D. Ab. C. — Crawford and Dix's Abridged Cases. 
 
 C. & F.— Clarke and Finelly's Reports. 
 
 C. J. — Chief Justice. 
 
 C. & J. — Crompton and Jervis' Exchequer Reports. 
 
XX ABBREVIATIONS. 
 
 C. J. C. P.— Chief Justice of the Common Pleas. 
 C. J. K. B.— Chief Justice of the King's Bench. 
 C. J. Q. B.— Chief Justice of the Queen's Bench. 
 C. J. U. B.— Chief Justice of the Upper Bench. During the 
 time of the Commonwealth, the English Court of the King's 
 Bench was called the Upper Bench. 
 C. & K. — Carrington and Kirwan's Reports. 
 C. & M. — Crompton and Meeson's Report's. 
 C. & M. — Carrington and Marshman's Reports. 
 C. M. & R. — Crompton, Meeson and Roscoe's Exchequer Re- 
 ports. 
 C. N. P. C— Campbell's Nisi Prius Cases. 
 C. P. — Common Pleas. 
 C. P. Coop.— C. P. Cooper's Reports. 
 C. & P. or Car. & Payn. — Carrington and Payne's Reports, in 
 
 E. C. L. R. 
 C. & P.— Craig and Phillips' Reports. 
 C. R. or Ch. Rep. — Chancery Reports. 
 C. & R. — Cockburn and Rowe's Reports. 
 C. W. Dudl. Eq.— C. W. Dudley's Equity Reports. 
 C. Theod. — Codice Theodosiano, in the Theodosian Code. 
 Ca. — Case or Placitum. 
 Ca. T. K. — Select Cases tempore King. 
 Ca. T. Talb.— Cases tempore Talbot. 
 Ca. Res. — Capias ad respondendum. 
 
 Ca. sa. in practice, is the abbreviation of capias ad satisfacien- 
 dum. 
 Caines' R. — Caines' Term Reports. 
 Caines' Cas. — Caines' Cases, in error. 
 Caines' Pr. — Caines' Practice. 
 Cald. R. — Caldecott's Reports. 
 Cald. S. C. — Caldecott's Settlement Cases ; sometimes cited 
 
 Cald. R. 
 Caldw. Arbit. — Caldwell on Arbitration. 
 Call, on Sew. — Callis on the Law relating to Sewers. 
 Call's R.— Call's Reports. 
 Calth. R. — Calthorp's Reports of special cases touching several 
 
 customs and liberties of the city of London. 
 Calth. on Copyh. — Calthorpe on Copyholds. 
 Calv. on Part. — Calvert on Parties to Suits in Equity. 
 Cam. & Norw. — Cameron and Norwood's Reports. 
 Campb. — Campbell's Reports. Reports of Cases argued and 
 ruled at Nisi Prius in the Courts of K. B. and C. P., from 
 1807 to 1816. By John Campbell. 
 Can. — Canon. 
 Cap. — Capitulo, chapter. 
 Car. — Carolus; as 13 Car. II., st. 2, c. 1. 
 
ABBREVIATIONS. xxi 
 
 Carr. Cr. L. — Carrington's Criminal Law. 
 
 Carr. & Kirw. — Carrington and Kirwan's Reports. See C. & K. 
 
 Carr. & Marsh. — Carrington and Marshman's Reports. 
 
 Carr. & Oliv. R. & C. C. — Carrow and Oliver's Railway and 
 
 Canal Cases. 
 Cart. — Carter's Reports. Reports in C. P. in 16, 17, 18 and 
 
 19, Charles II. 
 Carta de For. — Carta de Foresta. 
 Carth. — Carthew's Reports. 
 Cary. — Cary's Reports. 
 
 Cary on Partn. — Gary on the Law of Partnership. 
 Cas. of App. — Cases of Appeals to the H. of L. 
 Cas. L. Eq. — Cases and Opinions in Law, Equity, and Convey- 
 ancing. 
 Cas. of Pr. — Cases of Practice in the Court of the King's Bench, 
 
 firom the reign of Eliz. to the 14 Geo. III. 
 Cas. of Sett. — Cases of Settlement. 
 Cas. Temp. Hardw. — Cases during the time of Lord Hard- 
 
 wicke. 
 Cas. Temp. Talb. — Cases during the time of Lord Talbot. 
 Ch. — Chancellor. 
 Ch. Cas. — Cases in Chancery. 
 Ch. Pr. — Precedents in Chancery. 
 Ch. R. — Reports in Chancery. 
 Ch. Rep.— Vide Ch. Cases. 
 
 Chamb. on Jur. of Chan. — Chambers on the Jurisdiction of the 
 High Court of Chancery, over the persons and property of 
 Infants. 
 Chamb. L. & T. — Chambers on the Law of Landlord and 
 
 Tenant. 
 Char. Merc. — Charta Mercatoria. See Bac. Ab. Smuggling, C. 
 Charlt.— Charlton. T. U. P. Charl.— T. U. P. Charlton's Re- 
 ports. R. M. Charlt. — R. M. Charlton's Reports. 
 Chase's T. R.— Chase's Trial. 
 Cher. Cas. — Cherokee Case. 
 Chev. C. C. — Cheves' Chancery Cases. 
 Chipm. R. — Chipman's Reports. D. Chipm. — D. Chipman's 
 
 Reports. 
 Chipm. Contr. — Essay on the Law of Contracts for the pay- 
 ment of Specific Articles. By Daniel Chipman. 
 Ch. Contr. — A Practical Treatise on the Law of Contracts, not 
 under seal, and upon the usual defences to actions thereon. 
 By Joseph Chitty, jr. Cited Chit, on Contr. 
 Chitty on App. — Chitty's Practical Treatise on the Law relating 
 
 to Apprentices and Journeymen. 
 Chit, on Bills.— Chitty on Bills. 
 Chit. jr. on Bills. — Chitty, junior, on Bills. 
 
xxii ABBREVIATIONS. 
 
 Chit. Com. L. — Chitty's Treatise on Commercial Law. 
 
 Chit. Cr. L. — Chitty's Criminal Law. 
 
 Chit, on Des. — Chitty on the Law of Descents. 
 
 Chit. r. — Chitty's Forms and Practical Proceedings. 
 
 Chit. Med. Jur. — Chitty on Medical Jurisprudence. 
 
 Chit. Rep.— Chitty's Reports. In E. C. L. R. 
 
 Chit. PI. — A Practical Treatise on Pleading. 
 
 Chit. Pr. — Chitty's General Practice. A most excellent and 
 practical work. 
 
 Chit. Prerog. — Chitty on the Law of the Prerogatives of the 
 Crown. 
 
 Chris. B. L. — Christian's Bankrupt Laws. 
 
 Christ. Med. Jur. — Christison's Treatise on Poisons, relating 
 to Medical Jurisprudence, Physiology, and the Practice of 
 Physic. 
 
 Civ.— Civil. 
 
 Civ. Code Lo. — Civil Code of Louisiana. 
 
 CI. — The Clementines. 
 
 CI. Ass. — Clerk's Assistant. 
 
 Clan. H. & W. — Clancy on the Rights, Duties, and Liabilities 
 of Husband and Wife. 
 
 Clark on Leas. — Clark's Enquiry into the Nature of Leases. 
 
 Clarke's R. — Clarke's Reports. 
 
 Clark & Fin. — Clark and Finelly's Reports. 
 
 Clark. Adm. Pr. — Clarke's Practice in the Admiralty. 
 
 Clark. Prax. — Clarke's Praxis, being the manner of proceeding 
 in the Ecclesiastical Courts. 
 
 Clay. — Clayton's Reports. Reports of Pleas of Assize at York, 
 with some Precedents useful for Pleaders, in English. 
 
 Cleir. Us et Cous. — Cleirac, Us et Coutumes de la Mer. 
 
 Clerke's Rud. — Clerke's Rudiment's of American Law and Prac- 
 tice. 
 
 Clift.— Cliffs Entries. 
 
 Co. — ^A particle used before other words to imply that the per- 
 son spoken of possesses the same character as other persons 
 whose character is mentioned, as co-executor, an executor 
 with others ; co-heir, an heir with others ; co-partner, a 
 partner with others, etc. Co. is also an abbreviation for 
 company, as John Smith & Co. When so abbreviated it also 
 represents county. 
 
 Co. — Coke's Reports. 
 
 Co. or Co. Rep. — Coke's Reports. 
 
 Co. Ent. — Coke's Entries. 
 
 Co. B. L. — Coke's Bankrupt Law. 
 
 Co. on Courts. — Coke on Courts ; 4th Institute. See Inst, below, 
 and 1 Bl. Com. 73. 
 
 Co. Litt. — Coke on Littleton. See Inst. 
 
ABBREVIATIONS. xxiii 
 
 Co. M. C— Coke's Magna Charta; 2d Institute. See Inst. 
 
 and 1 Bl. Com. 73. 
 Co. P. C. — Coke's Pleas of the Crown, See Inst, and 1 Bl. 
 Com. 73. 
 
 Cock. & Rowe. — Cockburn and Rowe's Reports. 
 
 Code Civ. — Code Civil, or Civil Code of France. This work 
 is usually cited by the article. 
 
 Code Nap. — Code Napoleon. The same as Code Civil. 
 
 Code Com. — Code de Commerce. 
 
 Code Pen. — Code Penal. 
 
 Code Pro. — Code de Procedure. 
 
 Col. — Column. In the first or second column of the book quoted . 
 
 Col. & Cai. Cas. — Coleman and Caines' Cases. 
 
 Cole on Inf. — Cole on Criminal Informations, and Informations 
 in the nature of Quo Warranto. 
 
 Coll. on Pat. — Collier on the Law of Patents. 
 
 Coll. on Idiots. — Collinson on the Law concerning Idiots, etc. 
 
 Coll. Rep. — Colle's Reports. 
 
 Coll.— Collation. 
 
 Colly, on Partn. — Collyer on Partnership, 
 
 Colly. Rep. — Collyer's Reports. 
 
 Com. — Communes, or Extravagantes Communes, 
 
 Com. or Com. Rep. — Comyn's Reports. 
 
 Com. Contr. — Comyn on Contract. 
 
 Com. on Us. — Comyn on Usury. 
 
 Com. Dig. — Comyn's Digest. 
 
 Com. L. & T. — Comyn on the Law of Landlord and Tenant. 
 
 Com. Law. — Commercial Law. 
 
 Com. Law Rep. — Common Law Reports, edited by Sergeant 
 and Lowber. Vide E. C. L. Rep. 
 
 Comb. — Comberbach's Reports. Reports in K. B., from 1 K. 
 James II. (1685) to 10 K. William III. (1698.) By Roger 
 Comberbach. — Comberbach is said by Lord Thurlow to be 
 bad authority. 1 Bro. C. C. 97. 
 
 Comm. — Blackstone's Commentaries. 
 
 Con. & Law. — Connor and Lawson's Reports. 
 
 Cond. — Condensed. 
 
 Cond. Ch. R. — Condensed Chancery Reports. 
 
 Cond. Ex. R. — Condensed Exchequer Reports. 
 
 Conf. Chart. — Confirmatio Chartorem. See Bac. Ab. Smug- 
 gling, B. 
 
 Cong. — Congress. 
 
 Conkl. Pr. — Conkling's Practice of the Courts of the United 
 States. 
 
 Conn. R. — Connecticut Reports. 
 
 Conr. Cust. R. — Conroy's Custodian Reports. 
 
 Cons, del Mar. — Consolato del Mare. 
 
xxiv ABBREVIATIONS. 
 
 Cons. Ct. R. — Constitutional Court Reports. 
 
 Cons, on Co. — Consett on Practice of the Ecclesiastical Courts. 
 
 Cont. — Contra. 
 
 Cooke on Defam. — Cooke on Defamation. 
 
 Coop. Eq. R. — Cooper's Equity Reports. 
 
 Coop. Cas. — Cases in the High Court of Chancery during the 
 
 time of Lord Chancellor Eldon, in Hilary, Easter, and Trinity 
 
 Terms, 55 Geo. III. 1815, with a few cases of an earlier 
 
 period. By George Cooper. 
 Coop, on Lib. — Cooper on the Law of Libels. 
 Coop. Eq. PI. — Cooper's Equity Pleading. 
 Coop. Just. — Cooper's Justinian's Institutes. 
 Coop. Med. Jur. — Cooper's Medical Jurisprudence. 
 Coop. t. Brough. — Cooper's Cases in the time of Brougham. 
 Coop. P. P. — Cooper's Points of Practice. 
 Coote on Mortg. — Coote on Mortgages. 
 Corb. & Dan. — Corbet and Daniel's Election Cases. 
 Corn, on Uses. — Cornish on Uses. 
 Corn, on Rem. — Cornish on Remainders. 
 Corp. Jur. Civ. — Corpus Juris Civilis. 
 Corp. Jur. Can. — Corpus Juris Canonicus. 
 Corvin. — Corvinus. See Bac. Ah. Mortgage A, where this 
 
 author is cited. 
 Cot. Abr. — Cotton's Abridgment of Records. 
 Gov. on Conv. Evi. — Coventry on Conveyancers' Evidence. 
 Cow. Int. — Cowel's Law Dictionary, or the interpreter of Words 
 
 and terms, used either in the common or statute laws of Great 
 
 Britain. 
 Cowp. — Cowper's Reports. 
 Cow. R. — Cowen's Reports, N. Y. 
 Cox's Cas. — Cox's Cases. Cases determined in the Courts of 
 
 Equity from 1783 to 1796 inclusive. 
 Coxe's R. — Coxe's Reports. 
 Crabb's C. L. — Crabb's Common Law. A History of the 
 
 English Law ; or an attempt to trace the rise, progress, and 
 
 changes of the Common Law. By George Crabb. 
 Crabb, R. P. — Crabb on the Law of Real Property. 
 Craig. & Phil. — Craig and Phillips' Reports. 
 Cranch, R. — Cranch's Reports. 
 Cresw. R. — Creswell's Reports of Cases decided in the Court 
 
 for the Relief of Insolvent Debtors. 
 Crim. Con. — Criminal conversation ; adultery. 
 Cro.— Croke's Reports. Cro. Eliz.— Croke's Reports, during 
 
 the time of Queen Elizabeth, also cited as 1 Cro. Cro. 
 
 Jac— Croke's Reports, during the time of King James I., 
 
 also cited as 2 Cro. Cro. Car.— Croke's Reports, during the 
 
 time of Charles I., also cited as 3 Cro. 
 
ABBREVIATIONS. xxv 
 
 Crompt. Ex. Rep. — Crompton's Exchequer Reports. 
 
 Crompt. J. C. — Crompton's Jurisdiction of Courts. 
 
 Crompt. & Mees. — Crompton and Meeson's Exchequer Reports. 
 
 Crompt. Mees. & Rose. — Crompton, Meeson and Roscoe's 
 Exchequer Reports. 
 
 Cross on Liens. — Cross' Treatise on the Law of Liens and 
 Stoppage in Transitu. 
 
 Cru. Dig. or Cruise's Dig. — Cruise's Digest of the Law of 
 Real Property. 
 
 Cul. culpabilis, guilty; non cul., not guilty. 
 
 Cull. Bankr. L. — Cullen's Principles of the Bankrupt Law. 
 
 Cun. — Cunningham's Reports. 
 
 Cun. Diet. — Cunningham's Dictionary. 
 
 Cur. adv. vult. — Curia advisere vult. 
 
 Cur. Scacc. — Cursus Scaccarii, the Court of the Star Chamber. 
 
 Cur. Phil. — Curia Philipica. 
 
 Curs. Can. — Cursus Cancellarise. 
 
 Curt. R. — Curteis' Ecclesiastical Reports. 
 
 Curt. Eq. Pr. — Curtis' Equity Precedents. 
 
 Curt. Am. Sea. — Curtis on American Seamen. 
 
 Curt, on Copyr. — Curtis on Copyrights. 
 
 Cush. Rep. — Cushing's Reports. 
 
 Cush. Trust. Pr. — Gushing on Trustee Process, or Foreign 
 Attachment, of the Laws of Massachusetts and Maine. 
 
 Cus. de Norm. — Custome de Normandie. See Bac. Ab. Cus- 
 toms, B. 
 
 D. dialogue ; as, Dr. & Stud. d. 2, c. 24, or Doctor and Stu- 
 dent, dialogue 2, chapter 24. 
 
 D. dictum ; D. Digest of Justinian. 
 
 D. — The Digest or Pandects of the civil law, is sometimes cited 
 thus, D. 6, 1, 5. 
 
 D. C. — District Court ; District of Columbia. 
 
 D. C. L.— Doctor of the Civil Law. 
 
 D. Chipm. R. — D. Chipman's Reports. 
 
 D. S. B. — Debit sans breve. 
 
 D. S —Deputy Sheriff. See 1 Tenn. R. 436. 
 
 D. & C. — Dow and Clark's Reports. 
 
 D. & C. — Deacon and .Chitly's Reports. 
 
 D. & E. — Durnford and East's Reports. This book is also cited 
 as Term Reports, abbreviated T. R. 
 
 D. & L. — Danson and Lloyd's Mercantile Cases. 
 
 D. & M. — Davidson's and Merivale's Reports. 
 
 D. & R. — Dowling and Ryland's Reports of Cases decided in 
 the Court of the King's Bench. In E. C. L. R. 
 
 D. & R. N. P. C- — Dowling and Ryland's Reports of Cases 
 decided at Nisi Prius. In E. C. L. R. 
 
xxvi ABBREVIATIONS. 
 
 D. & S.— Doctor and Student. 
 
 D, &, w. — Drury and Walsh's Reports. 
 
 D'Aguesseau, CEuvres. — CEuvres Completes du Chancellier 
 D'Aguesseau. 
 
 Dag. Cr. L. — Dagge's Criminal Law. 
 
 Dal. — Dalison's Reports. See Benl. 
 
 Dall. — Dallas' Reports. 
 
 Dall. L. — Dallas' Laws of Pennsylvania. 
 
 Dalloz, Diet. — Dictionnaire General et raissonne de Legislation, 
 de Doctrine, et de Jurisprudence, en matiere civile, commer- 
 ciale, criminelle, administrative, et de Droit Public. Par 
 Armand Dalloz, jeune. 
 
 Dalr. Feud. Pr.— Dairy mple's Essay, or History of Fuedal 
 Property in Great Britain. Sometimes cited Dalr. F. L. 
 
 Dalr. on Ent. — Dalrymple on the Polity of Entails. 
 
 Dalr. F. L. — Dalrymple's Feudal Law. 
 
 Dalt. Just. — Dalton's Justice. 
 
 Dalt. Sh.— Dalton's Sheriff. 
 
 D'Anv. — D'Anvers' Abridgment. 
 
 Dan. Ch. Pr. — Daniell's Chancery Practice. 
 
 Dan. Ord. — Danish Ordinances. 
 
 Dan. Rep. — Daniell's Reports. 
 
 Dan. & LI. — Danson and Lloyd's Reports. 
 
 Dana's R. — ^Dana's Reports. 
 
 Dane's Ab. — Dane's Abridgment of American Law. 
 
 Dav. — Davy's Reports. 
 
 Dav. on Pat. — Davies' Collection of Cases respecting Patents. 
 
 Dav. Rep. — Davis' Reports. 
 
 Daw. Land. Pr. — Dawes' Epitome of the Law of Landed Pro- 
 perty. 
 
 Daw. Real Pr. — Dawes' Introduction to the Knowledge of 
 the Law on Real Estates. . 
 
 Daw. on Arr. — Dawes' Commentaries on the Law of Arrest in 
 Civil Cases. 
 
 Daws. Or. Leg. — Dawson's Origo Legum. 
 
 Deac. R. — Deacon's Reports. 
 
 Deac. & Chit. — Deacon and Chitty's Reports. 
 
 Dean's Med. Jur. — Dean's Medical Jurisprudence. 
 
 Deb. on Jud. — Debates on the Judiciary. 
 
 Dec. temp. H. & M. — Decisions in Admiralty during the time 
 of Hay and Marriott. 
 
 Deft.— Defendant. 
 
 De Gex & Sm. R. — De Gex and Smale's Reports. 
 
 Den. Cr. Cas. — Denison's Crown Cases. 
 
 Den. Rep. — Denio's New York Reports. 
 
 Desaus. R. — Desaussure's Chancery Reports. 
 
 Dev. R. — Devereux's Reports. 
 
ABBREVIATIONS. xxvii 
 
 Dev. Ch. R. — Devereux's Chancery Reports. 
 
 Dev. & Bat. — Devereux and Battle's Reports. 
 
 Dy. — Dyer's Reports. 
 
 Dial, de Scac. — Dialogus de Scaccario. 
 
 Dick. Just. — Dickinson's Justice. 
 
 Dick. Pr. — Dickson's Practice of the Quarter and other 
 
 Sessions. 
 Dick. — Dickens' Reports. 
 Diet. — Dictionary. 
 
 Diet. Dr. Can. — Dictionnaire de Droit Cannonique. 
 Diet de Jur. — Dictionnaire de Jurisprudence. 
 Dig. — Digest of Writs. Dig. — The Pandects or Digest of the 
 
 Civil Law, cited Dig. 1, 2, 5, 6, for Digest, book 1, tit. 2, 
 
 law 5, section 6. 
 Disn. on Gam. — Disney's Law of Gaming. 
 Doct. & Stud. — Doctor and Student. 
 Doct. PI. — Doctrina Placitendi. 
 Doder. Eng. Law. — Doderidge's English Lawyer. 
 Dods. R. — Dodson's Reports. 
 Dom. — Domat, Lois Civiles. 
 Dom. Proc. — Domo Procerum. House of Lords. 
 Domat. — Lois Civiles dans leur ordre naturel. Par. M. Domat. 
 Dougl. — Douglas' Reports. 
 Doug. El. Cas. — Douglas' Election Cases. 
 Dougl. (Mich.) R. — Douglas' Michigan Reports. 
 Dow. or Dow. P. C. — Dow's Parliamentary Cases. 
 Dow & Clarke. — Dow and Clarke's Reports of Cases in the 
 
 House of Lords. 
 Dowl. P. C. — Dowling's Practical Cases. 
 Dow. & R. N. P. — Dowling and Ryan's Nisi Prius Cases. 
 Dow. & Ry. M. C. — Dowling and Ryan's Cases for Magistrates. 
 Dowl. & Ry. — Dowling and Ryland's Reports of Cases decided 
 
 in the Court of the King's Bench. In E. C. L. R. 
 Dr. & St. — Doctor and Student. 
 Drew, on Inj. — Drewry on Injunctions. 
 Dru. & Wal. — Drury and Walsh's Reports. 
 Dru & War. — Drury and Warren's Reports. 
 Dub. — Dubitatur. 
 
 Dudl. R. — Dudley's Law and Equity Reports. 
 Dug. S. or Dugd. Sum. — Dugdale's Summonses. 
 Dugd. Orig. — Dugdale's Origines. 
 Dug. Sum. — Dugdale's Summonses. 
 
 Duke or Duke's Ch. Uses. — Duke's Law of Charitable Uses. 
 Dunl. Pr. — Dunlap's Practice. 
 Dunl. Adm. Pr. — Dunlap's Admiralty Practice. 
 Duponc, on Jur. — Duponceau on Jurisdictions. 
 Duponc. Const. — Duponceau on the Constitution. 
 
xxviii ABBREVIATIONS. 
 
 Dur. Dr. Fr. — Duranton, Droit FrarKjais. 
 
 Durnf. & East. — Durnford and East's Reports, also cited D. & 
 E. or T. R. 
 
 Duv. Dr. Civ. Fr. — Duvergier, Droit Civil FranQais. This is 
 a continuance of Toullier's Droit Civil Fran^ais. The first 
 volume of Duvergier is the sixteenth volume of the con- 
 tinuation. The work is sometimes cited 16 Toull. or 16 
 Toullier, instead of being cited 1 Duv. or 1 Duvergier, etc. 
 
 Dwar. on Stat. — Dwarris on Statutes. 
 
 Dy. — Dyer's Reports. 
 
 E. — Easter Term. 
 
 E.— Edward ; as 9 E. III., c. 9. 
 
 E. of Gov. — Earl of Coventry's Case. 
 
 E. C. L. R. — English Common Law Reports, sometimes cited 
 
 Eng. Com. Law Rep. (q. v.) 
 E. g., usually written e. g, exempli gratia ; for the sake of an 
 
 instance or example. 
 E. P. C. or East, P. C— East's Pleas of the Crown. 
 Eccl. — Ecclesiastical. 
 Eccl. Law. — Ecclesiastical Law. 
 
 Eccl. Rep. — Ecclesiastical Reports. Vide Eng. Eccl. Rep. 
 Ed. or Edit.— Edition. 
 Ed.— Edward ; as, 3 Ed. I., c. 9. 
 Ed. Inj. — Eden on Injunction. 
 Ed. Eq. Reps. — Eden's Equity Reports. 
 Ed. Prin. Pen. Law. — Eden's Principles of Penal Law. 
 Edm. Exch. Pr. — Edmund's Exchequer Practice. 
 Edw. Ad. Rep. — Edwards' Admiralty Reports. 
 Edw. Lead. Dec. — Edwards' Leading Decisions. 
 Ed. on Part. — Edwards on Parties to Bills in> Chancery. 
 Edw. on Rec. — Edwards on Receivers in Chancery. 
 EHz.— Elizabeth ; as, 13 Eliz. c. 15. 
 Ellis on D. and Cr. — Ellis on the Law relating to Debtor and 
 
 Creditor. 
 Elm. on Dil. — Elmes on Ecclesiastical and Civil Dilapidations. 
 Elsn. on Pari. — Elsynge on Parliaments. 
 Encycl. — Encyclopedia, or Encyclopedic. 
 Eng. — English. 
 
 Eng. Ch. R. — English Chancery Reports. Vide Cond. Ch. R. 
 Eng. Com. Law. Rep. — English Common Law Reports. 
 Eng. Ecc. R. — English Ecclesiastical Reports. 
 Eng. Plead. — Enghsh Pleader. 
 Engl. Rep. — English's Arkansas Reports. 
 Eod. — Eodem, under the same title. 
 Eod. tit. — In the same title. 
 Eq. Ca. Ab. — Equity Cases Abridged. 
 
ABBREVIATIONS. xxix 
 
 Eq. Draft. — Equity Draftsman. 
 
 Ersk. Inst. — Erskine's Institute of the Law of Scotland. Ersk. 
 
 Prin. ot Laws of Scot. — Erskine's Principles of the Laws of 
 
 Scotland. 
 Esp. N. P. — Espinasse's Nisi Prius. 
 Esp. N. P. R. — Espinasse's Nisi Prius Reports. 
 Esp. on Ev. — Espinasse on Evidence. 
 Esp. on Pen. Ev. — Espinasse on Penal Evidence. 
 Esq. — Esquire. 
 Et Al. — Et alii and others. 
 Eunom. — Eunomus, or Doctor and Student. 
 Ev. Col. Stat. — Evans' Collection of Statutes. 
 Ev. on PI. — Evans on Pleading. 
 Ev. Tr.— Evans' Trial. 
 
 Ex. or Exor. — Executor. Execx. — ^Executrix. 
 Exch. Rep. — Exchequer Reports. Vide Cond. Exch. Rep. 
 Exec. — Execution. 
 Exp . — Expired . 
 
 Exton's Mar. Dicaeo. — Exton's Maritime Dicaeologie. 
 Extrav. — Extravagants. 
 
 F. — Finalis, the last or latter part. 
 
 F. — Fitzherbert's Abridgment. 
 
 F. & F. — Falconer and Fitzherbert's Reports. 
 
 F. R. — Forum Romannm. 
 
 F. & S.— Fox and Smith's Reports. 
 
 F. N. B. — Fitzherbert's Natura Brevium. 
 
 Faicf. R. — Fairfield's Reports. 
 
 Fac. Coll. — Faculty Collection ; the name of a set of Scotch 
 
 Reports. 
 Falc. & Fitzh. — ^Falconer and Fitzherbert's Election Cases. 
 Far. — Farresly, (7 Mod. Rep.) is sometimes so cited. 
 Farr's Med Jur. — Farr's Elements of Medical Jurisprudence. 
 Fearn. on Rem. — Fearne on Remainders. 
 Fell, on Mer. Guar. — Fell on Mercantile Guarantees. 
 Ferg. on M. & D. — Ferguson on Marriage and Divorce. 
 Ferg. Rep. Div. — Ferguson's Reports in Actions of Divorce. 
 Ferg. R. — Fergusson's Reports of the Consistorial Court of 
 
 Scotland. 
 Ff. or fF. — Pandects of Justinian. This is a careless way of 
 
 writing the Greek n. 
 Ferr. Hist. Civ. L. — Ferriere's History of the Civil Law. 
 Ferr. Mod. — Ferriere Moderne, ou Noveau Dictionnaire des 
 
 Termes de Droit et de Practique. 
 Fess. on Pat. — Fessenden on Patents. 
 Fi. fa. — Fieri Facias. 
 Field's Com. Law. — Field on the Common Law of England. 
 
XXX ABBREVIATIONS. 
 
 Field, on Pen. Laws. — Fielding on Penal Laws. 
 
 Finch. — Finch's Law; or a discourse thereof, in five books. 
 
 Finch's Pr. — Finch's Precedents in Chancery. 
 Finl. L. C. — ^Finlason's Leading Cases on Pleading. 
 Fish Copyh. — Fisher on Copyholds. 
 Fitzg. — Fitzgibbon's Cases in the Courts of the K. B., 
 
 Chancery, C. P., and Exch. Vide 3 Atk. 306. 
 Fitzh. — Fitzherbert's Abridgment. Fitzh. Nat. Bre. — Fitz- 
 
 herbert's Natura Breviuih. 
 Fl. or Fleta. — A Commentary on the English Law, written by 
 
 an anonymous author in the time of Edward I., while a 
 
 prisoner in the Fleet. 
 Fletch on Trusts. — Fletcher on the Estates of Trustees. 
 Floy. Proct. Pr. — Floyer's Proctor's Practice. 
 Fol. — Foley's Poor Laws. 
 Fol.— Folio. 
 Fonb. — Fonblanque on Equity. Fonb. Med. Jur. — Fonblanque 
 
 on Medical Jurisprudence. 
 Forr. — Forrester's Cases during the time of Lord Talbot, com- 
 monly cited Cas. Temp. Talb. 
 For. Pla. — Brown's Formulae Placitorium. 
 Forb. on Bills. — Forbes on Bills of Exchange. 
 Forb. Inst. — Forbes' Institute of the Law of Scotland. 
 Forr. Exch. Rep. — Forrest's Exchequer Reports. 
 Fors. on Comp. — Forsyth on the Law Relating to Composition 
 
 with Creditors. 
 Fors. Cust. of Inf. — ^Forsyth on the Custody of Infants. 
 Fortesc. — Fortescue, De Laudibus Legum Anglise. Fortesc. 
 
 R. — Fortescue's Reports, temp. Wm. and Anne. 
 Fost. or Fost. C. L. — Foster's Crown Law. 
 Fox & Sm. — Fox and Smith's Reports. 
 Fr. Fragamentum. 
 
 Fra. or Fra. Max. — Francis' Maxims. 
 
 Fr. Ord. — French Ordinance. Sometimes cited Ord. de la Mer. 
 Fras. — Elect. Cas. — Eraser's Election Cases. 
 Fred. Co. — Frederician Code. 
 Freem. — Freeman's Reports. Freem. C. C. — Freeman's Cases 
 
 in Chancery. 
 Freem. (Miss.) R. — Freeman's Reports of Cases decided by the 
 
 Superior Court of Chancery of Mississippi. 
 
 G.— George ; as, 13 G. I., c. 29. 
 
 G. & J. — Glyn and Jameson's Reports. 
 
 G. & J. — Gill & Johnson's Reports. 
 
 G. M. Dudl. Rep.— G. M. Dudley's Reports. 
 
 Gale & Dav. — Gale and Davison's Reports. 
 
 Gale's Stat.— Gale's Statutes of Illinois. 
 
ABBREVIATIONS. xxxi 
 
 Gall, or Gall. Rep. — Gallison's Reports. 
 
 Garde on Ev. — Garde's Practical Treatise on the General Prin- 
 ciples and Elementary Rules of the Law of Evidence. 
 Geo. — George ; as, 13 Geo. I., c. 29. 
 Geo. Dec. — Georgia Decisions. 
 Geo. Lib. — George on the Offence of Libel. 
 Gibb. on D. & N. — Gibbons on the Law of Dilapidation and 
 
 Nuisances. 
 Gibs. Codex. — Gibson's Codex Juris Civilis. 
 Gilb. R.— Gilbert's Reports. Gilb. Ev.— Gilbert's Evidence, 
 by Lofft. Gilb. U. & T.— Gilbert on Uses and Trusts. 
 Gilb. Ten.— Gilbert on Tenures. Gilb. on Rents.— Gilbert 
 on Rents. Gilb. on Rep. — Gilbert on Replevin. Gilb. Ex. 
 — Gilbert on Executions. Gilb. Exch. — Gilbert's Exche- 
 quer. Gilb. For. Rom. — Gilbert's Forum Rom^num. Gilb. 
 K. B.— Gilbert's King's Bench. Gilb. Rem.— Gilbert on 
 Remainders. Gilb. on Dev. — Gilbert on Devises. Gilb. 
 Lex Preet. — Gilbert's Lex Praetoria. 
 Gill & John. — Gill and Johnson's Reports. 
 Gill's R.— Gill's Reports. 
 Gilm. R. — Gilmer's Reports. 
 Gilp. R. Gilpin's Circuit Court Reports. 
 Gl. Glossa, the Gloss. 
 
 Glanv. — Glanville's Treatise of the Laws and Customs of Eng- 
 land. See Co. Rep. Preface ; Plowd. 368 ; 1 Show. 121 ; 
 Madox's Exch. 123 ; 2 Reeve's Eng. Law, page v. and 283. 
 Glassf. Ev. — Glassford on Evidence. 
 Glov. Mun. Corp. — Glover on Municipal Corporations, or Glov. 
 
 on Corp. — Glover on the Law of Municipal Corporations. 
 Glyn & Jam. — Glyn and Jameson's Reports of Cases in Bank- 
 ruptcy. 
 Godb. — Godbolt's Reports. 
 
 Godolph. Ad. Jur. — Godolphin's View of the Admiralty Juris- 
 diction. 
 Godolph. Rep. Can. — Godolphin's Repertorium Canonicum. 
 Godolph. — Godolphin's Orphan's Legacy. 
 Gods, on Pat. — Godson's Treatise on the Law of Patents. 
 Goldesb. — Goldesborough's Reports. See Bro. Brownl. 
 Golds. — Goldsborough's Reports. 
 
 Gord. Dig. — Gordon's Digest of the Laws of the United States. 
 Gord. on Dec. — Gordon on the Law of Decedents in Pennsyl- 
 vania. 
 Gould on PI. — Gould on the Principles of Pleading in Civil 
 
 Actions. 
 Gow on Part. — Gow on Partnership. 
 
 Grab. Pr. — Graham's Practice. Grab. N. T. — Graham on New 
 Trials. 
 
xxxii ABBREVIATIONS. 
 
 Grand Cout. — Grand Coutumier de Normandie. 
 Grady on Fixt. — Grady on the Law of Fixtures. 
 Grant on New Tr. — Grant on New Trials. 
 Grant's Ch. Pr. — Grant's Chancery Practice. 
 Gratt. R. — Grattan's Virginia Reports. 
 Green's B. L. — Green's Bankrupt Laws. 
 Green's R. — Green's Reports. 
 
 Greenl. on Ev. — Greenleaf's Treatise on the Law of Evidence. 
 Greenl. Ov. Cas. — Greenleaf's Overruled Cases. 
 Greenl. R. — Greenleai's Reports. 
 Greenw. on Courts. — Greenwood on Courts. 
 Gres. Eq. Ev. — Gresley's Equity Evidence. 
 GrifF. Reg. — Griffith's Law Register. 
 
 Grimk. on Ex. — Grimke on the duty of Executors and Ad- 
 ministrators. 
 Grisw. Rep. — Griswold's Reports. 
 Grot. — Grotius de Jure Bellum. 
 Gude's Pr. — Gude's Practice on the Crown side of King's 
 
 Gwill.— Gwiilim's Tithe Cases. 
 Gwy. on Shff. — Gwynn on Sheriff. 
 
 H.— Henry ; as 19 H. VII., c. 15. 
 
 H.— Hilary Term. 
 
 H. A. — Hoc anno. 
 
 H. V. commonly written in small letters h. v. hoc verbo. 
 
 H. of L. — House of Lords. 
 
 H, of R. — House of Representatives. 
 
 H. & B. — Hudson and Brooke's Reports. 
 
 H. & G. — Harris and Gill's Reports. 
 
 H. & J. — Harris and Johnson's Reports. 
 
 H. Bl. — Henry Blackstone's Reports. 
 
 H. H. C. L. — Hale's History of the Common Law. 
 
 H. & M. — Henning and Munford's Reports. 
 
 H. & M'H. or Harr. & M'Hen.— Harris and McHenry's Reports. 
 
 Hab fa. seis. — Habere facias seisinam. 
 
 H. P. C— Hale's Pleas of the Crown. 
 
 H. t. usually put in small letters, h. t. hoc titulo. 
 
 Hab. Corp. — Habeas corpus. 
 
 Hab. fa. pos. — Habere facias possessionem. 
 
 Hagg. Ad. R. — Haggard's Admiralty Reports. Hag. Eccl. 
 R. — Haggard's Ecclesiastical Reports. In E. E. R. Hagg. 
 C. R. — Haggard's Reports in the Consistory Court of Lon- 
 don. 
 
 Hale, P. C— Hale's Pleas of the Crown. 
 
 Hale's Sum. — Hale's Summary of Pleas. 
 
 Hale's Jur. H. L.— Hale's Jurisdiction of the House of Lords. 
 
ABBREVIATIONS. xxxiii 
 
 Hale's Hist. C. L. — Hale's History of the Common Law. 
 Halif. Civ. Law. — Halifax's Analysis of the Civil Law. 
 Hall's R. — Hall's Reports of Cases decided in the Superior 
 
 Court of the city of New York. 
 Halk. Dig. — Halkerton's Digest of the Law of Scotland relating 
 
 to Marriage. 
 Hall's Adm. Pr. — Hall's Admiralty Practice. 
 Halst. R. — Halstead's Reports. 
 Hamm. N. P. — Hammond's Nisi Prius. 
 Ham. R. — Hammond's (Ohio) Reports. 
 Hamm. on Part. — Hammond on Parties to Actions. 
 Hamm. PI. — Hammond's Analysis of the Principles of Pleading. 
 Hamm. on F. I. — Hammond on Fire Insurance. 
 Han. — Hansard's Entries. 
 Hand's Ch. Pr. — Hand's Chancery Practice. 
 Hand on Fines. — Hand on Fines and Recoveries. 
 Hand's Cr. Pr. — Hand's Crown Practice. 
 Hand on Pat. — Hand on Patents. 
 Hans. Pari. Deb. — Hansard's Parliamentary Debates. 
 Hard. — Hardress' Reports. 
 Hardin's R. — Hardin's Reports. 
 Hare, R. — Hare's Reports. 
 Hare & Wall. Sel. Dec. — Hare and Wallace's Select Decisions 
 
 of American Cases, with Notes, by J. J. Clark Hare and H. 
 
 B. Wallace. 
 Hare on Disc. — Hare on the Discovery of Evidence by Bill and 
 
 Answer in, Equity. 
 Harg. Coll. — Hargrave's Juridical Arguments and Collections. 
 Harg. St. Tr.— Hargrave's State Trials. 
 Harg. Exer. — Hargrave's Exercitations. 
 Harg. Law Tr. — Hargrave's Law Tracts. 
 Harp. L. R. — Harper's Law Reports. 
 Harp. Eq. R. — Harper's Equity Reports. 
 Harr. Ch. — Harrison's Chancery Practice. 
 Harr. Cond. Lo. R. — Harrison's Condensed Reports of Cases 
 
 in the Superior Court of the Territory of Orleans, and in the 
 
 Supreme Court of Louisiana. 
 Harr. Dig. — Harrison's Digest. 
 Harr. Ent. — Harris' Entries. 
 Harr. Rep. — Harris' Reports of Cases decided by the Supreme 
 
 Court of Pennsylvania. Sometimes cited Penn. St. Rep. 
 Harr. (Mich.) R. — Harrington's Reports of Cases in the Supreme 
 
 Court of Michigan. 
 Harr. & Gill. — Harris and Gill's Reports. 
 Harr. & John. — Harris and Johnson's Reports. 
 Harr. & M'H.— Harris and M'Henry's Reports. 
 Harringt. R. — Harrington's Reports. 
 
 Vol. I. c 
 
xxxiv ABBREVIATIONS. 
 
 Hasl. Med. Jur. — Haslam's Medical Jurisprudence. 
 
 Hawk. P. C. — Hawkins' Pleas of the Crown. 
 
 Hawk's R. — Hawk's Reports. 
 
 Hay. on Est. — An Elementary View of the Common Law of 
 Uses, Devises, and Trusts, with reference to the Creation and 
 Conveyance of Estates. By William Hayes. 
 
 Hay. en Lim. — Hayes on Limitations. 
 
 Hay. Exch. R. — Hayes' Exchequer Reports. 
 
 Hays on R. P. — Hays on Real Property. 
 
 Heath's Max. — Heath's Maxims. 
 
 Hein. Elem. Juris Civ. — Heineccii Elementa Juris Civilis, 
 secundum ordinem Institutionem. 
 
 Hein. Elem. Juris Nat, — Heineccii, Elementa Juris Naturae et 
 Gentium. 
 
 Hen. on For. Law — ^Henry on Foreign Law. 
 
 Hen. J. P. — Henning's Virginia Justice of the Peace. 
 
 Hen. & Munf. — Henning and Munford's Reports. 
 
 Heme's Ch. Uses. — Heme's Law of Charitable Uses. 
 
 Heme's Plead. — Hearne's Pleader. 
 
 Het. — Hetley's Reports. 
 
 Heyw. on EI. — ^Heywood on Elections. 
 
 Heyw. (N. C.) R. — Hey wood's North Carolina Reports. 
 
 Heyw. (Tenn.) R. — Heywood's Tennessee Reports. 
 
 High. — Highmore. High, on Bail.- — Highmore on Bail. High, 
 on Lun. — Highmore on Lunacy. High, on Mortm. — High- 
 more on Mortmain. 
 
 Hill. Ab. — Hillard's Abridgment of the Law of Real Property. 
 
 Hill's R.— Hill's Reports. 
 
 Hill's Ch. R.— Hill's Chancery Reports. 
 
 Hill, on Trust. — A Practical Treatise on the Law relating to 
 Trustees, etc. 
 
 Hind's Pr. — Hind's Practice. 
 
 Hob. — Hobart's Reports. 
 
 Hodg. R. — Hodges' Reports. 
 
 Hodges on Railw. — Hodges on the Law of Railways. 
 
 Hoffm. Outl. — Hoffman's Outhnes of Legal Studies. HofFm. 
 Leg. St.— Hoffman's Legal Studies. Hoffm. Ch. Pr.— Hoff- 
 man's Chancery Practice. Hoffm. Mas. Ch. — Hoffman's 
 Master in Chancery. 
 
 Hoffm. R. — Hoffman's Reports. 
 
 Hog. R. — Hogan's Reports. 
 
 Hog. St. R.— Hogan's State Trials. 
 
 Holt, on Lib. — Holt on the Law of Libels. 
 
 Holt on Nav. — Holt on Navigation. 
 
 Holt's R.— Holt's Reports. 
 
 Holt on Sh. — Holt on the Law of Shipping. 
 
 Hopk. R. — Hopkins' Chancery Reports. 
 
ABBREVIATIONS. xxxv 
 
 Hopk. Adm. Dec. — Hopkins' Admiralty Decisions. 
 
 Houard's Ang. Sax. Laws. — Houard's Anglo Saxon Laws and 
 Ancient Laws of the French. 
 
 Houard's Diet. — Houard's Dictionary of the Customs of Nor- 
 mandy-" 
 
 Hough C. M. — Hough on Courts Martial. 
 
 Hov. Fr. — Hovenden on Frauds. 
 
 Hov. Supp. — Hovenden's Supplement to Vesey Junior's Re- 
 ports. 
 
 How. St. Tr.— Howell's State Trials. 
 
 Howe's Pr. — Howe's Practice in Civil Actions and Proceedings 
 at Law in Massachusetts. 
 
 How. Pr. R. — Howard's Practice Reports. 
 
 Hub. on Sue. Hubback on Successions. 
 
 Huds. & Bro. — Hudson and Brooks' Reports. 
 
 Hugh. Ab. — Hughes' Abridgment. 
 
 Hugh. Entr. — Hughes' Entries. 
 
 Hugh, on Wills. — Hughes on Wills. 
 
 Hugh. R. Hughes' Reports. 
 
 Hugh. Or. Writs. — Hughes' Comments upon Original Writs. 
 
 Hugh. Ins. — Hughes on Insurance. 
 
 Hugh, on Wills. — Hughes' Practical Directions for taking In- 
 structions for Drawing Wills. 
 
 Hull, on Costs. — Hullock on the Law of Costs. 
 
 Hult. on Conv. — Hulton on Convictions. 
 
 Humph. R. — Humphrey's Reports. 
 
 Hume's Com. — Hume's Commentaries on the Criminal Law of 
 Scotland. 
 
 Hut. — Hutton's Reports. 
 
 I. — The Institutes of Justinian (q. v.) are sometimes cited, I. 
 
 1, 3, 4. 
 I. — Infra, beneath or below. 
 lb. — Ibidem. 
 Ictus. — Jurisconsultus. This abbreviation is usually written 
 
 with an 1, though it would be more proper to write it with 
 
 a /, the first letter of the word Jurisconsultus ; c is the 
 
 initial letter of the third syllable, and tus is the end of the 
 
 word. 
 Id. — Idem. 
 
 II Cons, del Mar.— II Consolato del Mare. 
 Imp. Pr. C. P. — Impey's Practice in the Common Pleas. Imp. 
 
 Pr. K. B. — Impey's Practice in the King's Bench. Imp. 
 
 PI. — Impey's Modern Pleader. Imp. Sh. — Impey's Office 
 
 of Sheriff. 
 In. f. — In fine, at the end of the title, law, or paragraph 
 
 quoted. 
 
xxxvi ABBREVIATIONS. 
 
 In pr. — In principio, in the beginning and before the first para- 
 graph of a law. ^ 
 
 In princ. — In principium. In the beginning, the Preface. 
 
 In. sum. — In summa, in the summary. 
 
 Ind. — Index. 
 
 Inf. — Infra, beneath or below. 
 
 Ing. Dig. — Ingersoll's Digest of the Laws of the United States. 
 
 Ing. Roc. — Ingersoll's Roccus. 
 
 Ingr. on Insolv. — Ingraham on Insolvency. 
 
 Inj. — Injunction. 
 
 Ins. — Insurance. 
 
 Inst. — Coke on Littleton, is cited Co. Litt. or 1 Inst., for First 
 Institute. Coke's Magna Charta, is cited Co. M. C. or 2 
 Inst., for Second Institute. Co. P. C. — Coke's Pleas of the 
 Crown is cited 3 Inst., for Third Institute. Co. on Courts. — 
 Coke on Courts is cited 4 Inst., for Fourth Institute. 
 
 Inst. — Institutes. When the Institutes of Justinian are cited, 
 the citation is made thus : Inst. 4, 2, 1 ; or Inst. lib. 4, tit. 
 2, 1. 1 ; to signify Institutes, book 4, tit. 2, law 1. Coke's 
 Institutes are cited, the first, either Co. Litt. or 1 Inst., and 
 the others 2 Inst., 3 Inst., and 4 Inst. 
 
 Inst. CI. or Inst. Cler. — Instructor Clericalis. 
 
 Inst. Jur. Angl. — Institutiones Juris Anglicani, by Doctor 
 Cowell. 
 
 Introd. — Introduction. 
 
 Ir. Eq. R. — Irish Equity Reports, 
 
 Ir. T. R. — ^Irish Term Reports. Sometimes cited Ridg. Irish 
 T. R. (q. v.) 
 
 J. — Justice ; as Story, J. 
 
 J. — Institutes of Justinian. 
 
 J. C. — Juris Consultus. 
 
 J. C. P. — Justice of the Common Pleas. 
 
 J. Glo. — Juncta Glossa, the Gloss joined to the text quoted. 
 
 JJ. — Justices, as Yelverton and Croke, JJ. Hot. on Frauds. 
 271. 
 
 J. J. Marsh. — J. J. Marshall's (Kentucky) Reports. 
 
 J, K. B. — Justice of the King's Bench. 
 
 J. P. — Justice of the Peace. 
 
 J. Q. B. — Justice of the Queen's Bench. 
 
 J. U. B. — Justice of the Upper Bench. During the Common- 
 wealth, the English Court of the King's Bench was called 
 Upper Bench. 
 
 Jac. — Jacobus, James ; as 4 Jac. 1, c. 1. 
 
 Jac. Introd. — Jacob's Introduction to the Common, Civil, and 
 Canon Law. 
 
ABBREVIATIONS. xxxvii 
 
 Jac. L. D. — Jacob's Law Dictionary. 
 
 Jac. L. G. — Jacob's Law Grammar. 
 
 Jac. Lex. Mer. — Jacob's Lex Mercatoria, or the Merchants' 
 
 Companion. 
 Jac. R. — Jacob's Chancery Reports. 
 Jac. & Walk.-T-Jacob and Walker's Chancery Reports. 
 Jack. PI. — Jackson on Pleading. 
 Jarm. on Wills. — Jarman on the Law of Wills. 
 Jarm. Pow. Dev. — Powell on Devises, with Notes by Jarman. 
 Jebb's Ir. Cr. Cas. — Jebb's Irish Criminal Cases. 
 Jeff. Man. — Jefferson's Manual. 
 Jeff. R. — Thomas Jefferson's Reports. 
 
 Jenk." — Jeidiin's Eight Centuries of Reports ; or eight hundred 
 cases solemnly adjudged in the Exchequer Chamber, or upon 
 Writs of Error, from K. Henry III. to 21 E. James I. 
 Jer. — Jeremy. Jer. on Carr. — Jeremy's Law of Carriers. 
 Jer. Eq. Jur. — Jeremy on the Equity Jurisdiction of the High 
 Court of Chancery. 
 
 Jer. on Cor. — Jervis on Coroners. 
 
 John. Cas. — Johnson's Cases. 
 
 John. R. — Johnson's Reports. 
 
 John. Ch. R. — Johnson's Chancery Reports. 
 
 John. Eccl. Law. — Johnson's Ecclesiastical Law. 
 
 Johns. Civ. L. of Sp. — Johnson's Civil Law of Spain. 
 
 Johns, on Bills. — The Law of Bills of Exchange, Promissory 
 Notes, Checks, etc. By Cuthbert W. Johnson. 
 
 Jon. — Sir Wm. Jones' Reports. 
 
 Jon. & Car. — Jones and Carey's Reports. 
 
 Jon. on Lib. — Jones, De Libellis Famosis, or the Law of Libels. 
 
 Jon. Inst. Hind. L. — Jones' Institutes of Hindoo Laws. 
 
 Jon. Land Laws of Pa. — Jones' Land Laws of Pennsylvania. 
 
 Jon. Rep. — Jones' Pennsylvania Reports. Sometimes cited 
 Penn. St. Reports. 
 
 Jon. (1) — Sir W. Jones' Reports. 
 
 Jon. (2) — Sir T. Jones' Reports. 
 
 Jon. T. — Thomas Jones' Reports. 
 
 Jon. on Bailm. — Jones' Law of Bailments. 
 
 Jones' Intr. — Jones' Introduction to Legal Science. 
 
 Joy on Ev. Ace. — Joy on the Evidence of Accomplices. 
 
 Joy on Chal. — Joy on Challenge to Jurors. 
 
 Joy Leg. Ed. — Joy on Legal Education. 
 
 Jud. Chr. — Judicial Chronicle. 
 
 Jud. Repos. — Judicial Repository. 
 
 Judg. — Judgments, as they were, upon solemn arguments, given 
 in the Upper Bench and Common Pleas, upon the most diffi- 
 cult points, in all manner of actions. 
 
xxxviii ABBREVIATIONS. 
 
 Jur. Eccl. — Jura Ecclesiastica, or a Treatise of the Ecclesias- 
 tical Law and Courts, interspersed with various Cases of Law 
 and Equity. 
 
 Jur. Mar. — Molloy's Jure Maritime. Sometimes cited Molloy. 
 
 Jus. Nav. Rhod. — Jus Navale Rhodiorum. 
 
 Just. Inst. — Justinian's Institutes. 
 
 K. B. King's Bench. 
 
 K. C. R. — Reports in the time of Chancellor King. 
 
 K. &. O. — Knapp and Omber's* Election Cases. 
 
 Kames on Eq. — Karnes' Principles of Equity. 
 
 Karnes' Ess. — Kames' Essays. 
 
 Kames' Hist. L. T. — Kames' Historical Law Tracts. 
 
 Keat. Fam. Settl. — Keating on Family Settlements. 
 
 Keb. — Keble's Reports. 
 
 Keb. Stat.— Keble's English Statutes. 
 
 Keen's R. — Keen's Reports. 
 
 Keil. or Keilw. — Keilway's Reports. 
 
 Kel.— Sir John Kelyng's Reports. Kel. 1, 2, or W. Kel.— 
 
 William Kelyng's Reports, two parts. 
 Kelh. Norm. L. D. — Kelham's Norman French Law Dictionary. 
 Kell. R.— Kelly's Reports. 
 Ken. on Jur. — Kennedy on Juries. 
 Kent. Com. — Kent's Commentaries on American Law. 
 Keny. — Kenyon's Reports of the Court of King's Bench. 
 Kit. or Kitch. — Kitchen on Courts. 
 Kna. & Omb. — Knapp and Omber's Election Cases. 
 Knapp's A. C. — Knapp's Appeal Cases. 
 Knapp's R. — Knapp's Privy Council Reports. 
 Kyd on Aw. — Kyd on the Law of Awards. 
 Kyd on Bills. — Kyd on the Law relating to Bills of Exchange. 
 Kyd on Corp. — Kyd on the Law of Corporations. 
 
 L. in citation means Law, as L. 1, 33. Furtum, fF de Furtis, 
 i. e. Law 1, section or paragraph beginning with the word 
 Furtum; ff signifies the Digest, and the words de Furtis 
 denote the title. L. signifies also hber, book. 
 
 L. & G. — Lloyd and Goold's Reports. 
 
 L. & W.— Lloyd and Welsby's Mercantile Cases. 
 
 LL.— Laws, as LL. Gul. I., c. 42. Laws of William L, chapter 
 42 ; LL. of U. S., Laws of the United States. 
 
 L. S. — Locus sigili. 
 
 L. R. — Louisiana Reports. 
 
 La. — Lane's Reports. 
 
 Lalaure, des Ser.— Traite des Servitudes Reeles, par M. Lalaure. 
 
 Lamb. Archai. — Lambard's Archaionomia. 
 
 Lamb. Eiren. — Lambard's Eirenarcha. 
 
ABBREVIATIONS. xxxix 
 
 Lamb, on Dow. — Lambert on Dower. 
 Lat. — Latcb's Reports. 
 
 Laus. on Eq. — Laussat's Essay on Equity Practice in Pennsyl- 
 vania. 
 Law. on Chart. Part. — Lawes on the Law of Charter Parties. 
 Law. Lib. — Law Library. 
 Law. Rep. — Law Reporter. 
 Law's Eccl. Law. — Law's Ecclesiastical Law. 
 Law Intel. — Law Intelligencer. 
 
 Law Fr. & Latin Diet. — Law French and Latin Dictionary. 
 Law. PI. — Lawes' Elementary Treatise on Pleading in Civil 
 
 Actions. 
 Law. PI. in Ass. — Lawes' Treatise on Pleading in Assumpsit. 
 Laws of Wom. — Laws of Women. 
 Lawy. Mag. — Lawyer's Magazine. 
 Le. — Ley's Reports. 
 Leach. — Leach's Cases in Crown Law. 
 Lead. Cas. in Eq. — Leading Cases in Equity. 
 Le9. Elem. — Le9on's Elementaire du Droit Civil Romain. 
 Lee, Abs. Tit. — Lee on the Evidence of Abstracts of Title to 
 
 Real Property. 
 Lee on Capt. — Lee's Treatise of Captures in War. 
 Lee's Diet. — Lee's Dictionary of Practice. 
 Lee's Eccl. — Lee's Ecclesiastical Reports. 
 Leg. Bibl. — Legal Bibliography, by J. G. Marvin. 
 Leg. — Legibus. 
 Leg. Obs. — Legal Observer. 
 Leg. Oler. — The Laws of Oleron. 
 Leg. on Outl. — Legge on Outlawry. 
 Leg. Rhod. — The Laws of Rhodes. 
 Leg. ult. — The last law. 
 Leg. Wish. — Laws of Wisbuy. 
 Leigh & Dal. on Conv. — Leigh and Dalzell on Conversion of 
 
 Property. 
 Leigh's R. — Leigh's Reports. 
 Leigh's N. P. — Leigh's Nisi Prius. 
 Leo. or Leon. — Leonard's Reports. 
 Lev. — Levinz's Reports. 
 Lev. Ent. — ^Levinz's Entries. 
 Lew. C. C. — Lewin's Crown Cases. 
 Lew. Cr. Law. — An Abridgment of the Criminal Law of the 
 
 United States, by Ellis Lewis. 
 Lew. on Tr. — Lewin on Trusts. 
 Lew. on Perp. — Lewis on the Law of Perpetuities. 
 Lex Man. — Lex Maneriorum. 
 Lex. Mer. — Lex Mercatoria. Lex Mer. Am. — Lex Mercatoria 
 
 Americana. 
 
xl ABBREVIATIONS. 
 
 Lex Pari. — Lex Parliamentaria. 
 
 Ley. — Ley's Reports. 
 
 Lib. — Liber, Book. 
 
 Lib. Ass. — Liber Assisarum. 
 
 Lib. Ent. — Old Book of Entries. 
 
 Lib. Feud. — Liber Feudorum. 
 
 Lib. Intr. — Liber Intrationum ; or Old Book of Entries. 
 
 Lib. Nig. — Liber Niger. 
 
 Lib. PI. — Liber Placitandi. 
 
 Lib. Reg. — Register Books. 
 
 Lib. Rub. — Liber Ruber. 
 
 Lib. Ten. — Liberum Tenementum. 
 
 Lid. Jud. Adv.— Liddel's Detail of the Duties of a Deputy 
 
 Judge Advocate. 
 Lill. Entr.— Lilly's Entries. Lill. Reg. — Lilly's Register. 
 Lill. Rep. — ^Lilly's Reports. 
 Lill. Conv. — Lilly's Conveyancer. 
 Lind. — Lindewoode's Provinciale; or Provincial Constitutions 
 
 of England, with the Legantine Constitutions of Otho and 
 
 Othobond. 
 Litt. s. — Littleton, section. 
 
 Litt. R. — Littell's Reports. Litt. R. — Littleton's Reports. 
 Litt. Sel. Cas.— Littell's Select Cases. 
 Litt. Ten. — Littleton's Tenures'. 
 Liv. — Livre, book. 
 
 Liv. on Ag. — Livermore on the Law of Principal and Agent. 
 Liv. Sys. — Livingston's System of Penal Law for the State of 
 
 Louisiana. This work is sometimes cited Livingston's Report 
 
 on the Plan of a Penal Code. 
 Liverm. Diss. — Livermore's Dissertations on the Contrariety of 
 
 Laws. 
 Llo. & Go. — Lloyd and Goold's Reports. 
 Llo. & Go. t. Sudg. — Lloyd and Goold's Reports during the 
 
 time of Sugden. 
 Llo. & Go. t. Plunk. — Lloyd and Goold during the time of 
 
 Plunkett. 
 Llo. & Welsh. — Lloyd and Welsby's Reports of Cases relating 
 
 to Commerce, Manufactures, etc., determined in the Courts 
 
 of Common Law. 
 Lo. Ann. Rep. — Louisiana Annual Reports. 
 Loc. cit. — Loco citato, the place cited. 
 Log. Comp. — Compendium of the Law of England, Scotland, 
 
 and Ancient Rome. By James Logan. 
 LofFt.— Lofft's Reports. 
 Lois des Batim. — Lois des Batimens. See 3 Kent. Com. 350, 
 
 n. for the character of this work. 
 
ABBREVIATIONS. xli 
 
 Lom. Dig. — Lomax's Digest of the Law of Real Property in 
 the United States. 
 
 Lom. Ex. — Lomax on Executors. 
 
 Long. Quint. — Year Book, part 10. Vide Year Book. 
 
 Louis. Code. — Civil Code of Louisiana. 
 
 Louis. R. — Louisiana Reports. 
 
 Lovel. on Wills. — Lovelass on Wills. 
 
 Lown. Leg. — Lowndes on the Law of Legacies. 
 
 Luhe PI. Eq. — An Analysis of the Principles of Equity Plead- 
 ing. By D. G. Lube. 
 
 Luder's Elec. Cas. — Luder's Election Cases. 
 
 -Luml. Ann. — Lumley on Annuities. 
 
 Luml. Pari. Pr. — Lumley's Parliamentary Practice. 
 
 Luml. on Settl. — Lumley on Settlements and Removal. 
 
 Lut. Ent. — Lutwyche's Entries. 
 
 Lutw. — Lutwyche's Reports. 
 
 M. — Michaelmas Term. 
 
 M. Maxim, or Maxims. 
 
 M.— Mary ; as 4 M. st. 3, c. 1. 
 
 M. & A. — Montagu and Ayrton's Reports of Cases of Bank- 
 ruptcy. 
 
 M. & B. — Montagu and Bligh's Cases in Bankruptcy. 
 
 M. & C— Mylne and Craig's Reports. 
 
 M. & C— Montagu and Chitty's Reports. 
 
 M. & G. — Manning and Granger's Reports. 
 
 M. & G.— Maddock and Geldart's Reports. 
 
 M. G. & S. — Manning, Granger and Scott's Reports. 
 
 M. & K. — Mylne and Keen's Chancery Reports. 
 
 M. & M. or Mo. & Malk. Rep.— Moody and Malkin's Nisi 
 Prius Reports. In E. C. L. R. 
 
 M. P. Exch. — Modern Practice Exchequer. 
 
 M. & P. — Moore and Payne's Reports. 
 
 M. R.— Master of the Rolls. 
 
 M. R. — Martin's Reports of the Supreme Court of the State of 
 Louisiana. 
 
 M. & R.— Manning and Ryland's Reports. In E. C. L. R. 
 
 M. & S. — Moore and Scott's Reports. 
 
 M. & S.^Maule and Selwyn's Reports. 
 
 M. & Y. or Mart, and Yerg. — Martin and Yerger's Reports. 
 
 M. & W. — Meeson and Welsby's Reports. 
 
 M. D. & G. — Montagu, Deacon and Gex's Reports of Cases in 
 Bankruptcy. 
 
 M'Arth. C. M.— M'Arthur on Courts Martial 
 
 M'Cl. & Yo.— M'Clelland and Younge's Exchequer Reports. 
 
 M'Clel. E. R.— M'Clelland's Exchequer Reports. 
 
 M'Cord's Ch. R.— M'Cord's Chancery Reports. 
 
xlii ABBREVIATIONS. 
 
 M'Cord's R.— M'Cord's Reports. 
 
 M'Kin. Phil. Ev. — M'Kinnon's Philosophy of Evidence. 
 
 M'Naght. C. M.— M'Naghton on Courts Martial. 
 
 M'Lean & Rob. — M'Lean and Robinson's Reports. 
 
 M'Lean R. — M'Lean's Reports. 
 
 Macn. on Null. — Macnamara on Nullities and Irregularities in 
 
 the Practice of the Law. 
 Macnal. Ev. — Macnally's Rules of Evidence on Pleas of the 
 
 Crown. 
 Macph. on Inf. — Macpherson on Infants. 
 Macq. on H. and W. — Macqueen on Husband and Wife. 
 Mad. Exch. — ^Madox's History of the Exchequer. 
 Mad. Form. — Madox's Formulare Anglicanum. 
 Madd. & Geld.— Maddock and Geldart's Reports. 
 Madd., Madd. R.— Maddock's Chancery Reports. Madd. Pr. 
 
 or Madd. Ch. — Maddock's Chancery Practice. 
 Mag. Ins. — Magens on Insurance. 
 Mai. — Malyne's Lex Mercatoria. 
 Man. — Manuscript. 
 
 Man. & Gra. — Manning and Granger's Reports. 
 Man. Gr. & Sc. — Manning, Granger and Scott's Reports. 
 Man. & Ry. — Manning and Ryland's Reports. In E. C. L. R. 
 Manb. on Fines. — Manby on Fines. 
 
 Mann. Comm. — Manning's Commentaries of the Law of Nations. 
 Mann. Exch. Pr. — Manning's Exchequer Practice. 
 Mans, on Dem. — Mansel on Demurrers. 
 Mans, on Lim. — Mansel on the Law of Limitations. 
 Manw. — Manwood's Forest Laws. 
 Mar. — Maritime. 
 
 Mar. N. C. — ^March's New Cases. Mar. R. — March's Reports. 
 Marg. — ^Margin. 
 
 Mar. Adm. Dec. — Marriott's Admiralty Decisions. 
 Marr. Form. Inst. — Marriott's Formulare Instrumentorum ; or 
 
 a Formulary of Authentic Instruments, Writs, and Standing 
 
 Orders used in the Court of Admiralty of Great Britian, of 
 
 Prize and Instance. 
 Marsh. — Marshall's Reports in the Court of Common Pleas. 
 
 In E. C. L. R. A. Marsh.— Marshall's (Kty.) Reports. J. 
 
 J. Marsh.— J. J. Marshall's Reports. Marsh. Ins.— Marshall 
 
 on the Law of Insurance. 
 Marsh. Decis. — Brockenbrough's Reports of Chief Justice 
 
 Marshall's Decisions. 
 Mart. Law Nat. — Martin's Law of Nations. 
 Mart. (N. C.) R.— Martin's North Carolina Reports. 
 Mart. (Lo.) R. — Martin's Louisiana Reports. 
 Mart. & Yerg. — Martin and Yerger's Reports. 
 Mart. N. S. — Martin's Louisiana Reports, new series. 
 
ABBREVIATIONS. xliii 
 
 Marv. Leg. Bibl. — IVTarvin's Legal Bibliography, 
 
 Mason, R. — Mason's Circuit Court Reports. 
 
 Mass. R. — Massachusetts Reports. 
 
 Math, on Pres. — Mathew on the Doctrine of Presumption and 
 
 Presumptive Evidence. 
 Matth. on Port. — Matthews on Portion. 
 Matth. on Ex. — Matthews on Executors. 
 Maugh. Lit. Pr. — Maughan on Literary Property. 
 Maule & Selw. — Maule and Selwyn's Reports. 
 Max. — Maxims. 
 Maxw. L. D. — Maxwell's Dictionary of the Law Bills of 
 
 Exchange, etc. 
 Maxw. on Mar. L. — Maxwell's Spirit of the Marine Laws. 
 Mayn. — Maynard's Reports. The first part of the Y. B. is 
 
 sometimes so cited. 
 Med. Jur. — Medical Jurisprudence. 
 Mees & Wels. — Meeson and Welsby's Reports. 
 Meigs' R. — Meigs' Tennessee Reports. 
 Mer. R. — Merivale's Reports. 
 Merch. Diet. — Merchant's Dictionary, 
 Merl. Quest. — Merlin, Questions de Droit. 
 Merl. Repert. — Merlin, Repertoire. 
 Merrif. Law of A.tt. — Merrifield's Law of Attorneys. 
 Merrif. on Costs. — Merrifield's Law of Costs. 
 Mete. R.— Metcalf's Reports. 
 Mete. & Perk. Dig. — Digest of the Decisions of the Courts of 
 
 Common Law and Admiralty in the United States. By 
 
 Theron Metcalf and Jonathan C. Perkins. 
 Mich. — Michaelmas. 
 
 Mich. Rev. St. — Michigan Revised Statutes. 
 Miles' R.— Miles' Reports. 
 Mill. Civ. Law.— Miller's Civil Law. 
 Mill. Ins. — Millar's Elements of the Law relating to Insurances. 
 
 Sometimes this work is cited Mill. El. 
 Mill, on Eq. Mort. — Miller on Equitable Mortgages. 
 Minor's Rep. — Minor's Alabama Reports, sometimes cited Ala. 
 
 Rep. 
 Mireh. on Adv. — Mirehead on Advowsons. 
 Mirr. — Mirror des Justices. 
 Misso. R. — Missouri Reports. 
 Mitf. PI. — Mitford's Pleadings in Equity. Also cited Redesd. 
 
 PI. — Redesdale's Pleadings. 
 Mo. — Sir Francis Moore's Reports in the reign of K. Henry 
 
 VIIL, Q. Elizabeth, and K. James. 
 Mo. & Malk.— Moody and Malkin's Reports. In E. C. L. R. 
 Mo. C. C. — Moody's Crown Cases. 
 Mo. Cas. — Moody's NisiPrius and Crown Cases. 
 
xliv ABBREVIATIONS. 
 
 Mod. or Mod. R. — Modern Reports. 
 
 Mod. Cas. — Modern Cases. 
 
 Mod. C. L. & E.— Modern Cases in Law and Equity. The 8 
 
 & 9 Modern Reports are sometimes so cited ; the 8th cited 
 
 as the 1st, and the 9th as the 2d. 
 Mod. Entr. — Modern Entries. 
 Mod. Int.— Modus Intrandi. 
 Mol. — Molloy, De Jure Maritimo. 
 Moll. R. — ^Molloy's Chancery Reports. 
 Monr. R. — Monroe's Reports. 
 Mont. & Ayrt. — Montagu and Ayrton's Reports. 
 Mont. B. C. — Montagu's Bankrupt Cases. 
 Mont. & Bligh. — Montagu and Bligh's Cases in Bankruptcy. 
 Mont. & Chit. — Montagu and Chitty's Reports. 
 Mont, on Comp. — ^Montagu on the Law of Composition. Mont. 
 
 B. L. — -'Montagu on the Bankrupt Laws. Mont, on Set 
 Off.— Montagu on Set Off. 
 
 Mont. Deac. & Gex. — Montagu, Deacon and Gex's Reports of 
 Cases in Bankruptcy, argued and determined in the Court of 
 Review and on Appeals to the Lord Chancellor. 
 
 Mont. Dig.— Montagu's Digest of Pleadings in Equity. 
 
 Mont. Eq. PI.— Montagu's Equity Pleading. 
 
 Mont. & Mac. — Montagu and Macarthur's Reports. 
 
 Mont. Sp. of Laws. — Montesquieu's Spirit of Laws. 
 
 Montesq. — Montesquieu, Esprit des Lois. 
 
 Moo. & Malk.— Moody and Malkin's Reports. 
 
 Moo. & Rob. — Moody and Robinson's Reports. 
 
 Moore, R. — J. B. Moore's Reports of (Jases decided in the 
 Court of Common Pleas. In E. C. L. R, 
 
 Moore's A. C. — Moore's Appeal Cases. 
 
 Moore & Payne.' — Moore and Payne's Reports of Cases in 
 
 Moore & Scott. — Moore and Scott's Reports of Cases in 
 
 C. P. 
 
 Mort. on Vend. — Morton's Law of Venders and Purchasers of 
 
 Chattels Personal. 
 Mos. — Mosely's Reports. 
 
 MSS.— Manuscripts ; as. Lord Colchester's MSS. 
 Much. D. & S.— Muchall's Doctor and Student. 
 Mun. — Municipal. 
 Munf. R.— Munford's Reports. 
 Murph. R. — Murphy's Reports. 
 My. & Keen. — Mylne and Keen's Chancery Reports. 
 Myl. & Cr. — Mylne and Craig's Reports. 
 
 N.— Number, N. or Nov. — Novelise : the Novels. 
 N. A. — Non allocatur. 
 
ABBREVIATIONS. xlv 
 
 N. B.— Nulla bona. 
 
 N. Benl. — New Benloe. 
 
 N. C. Cas. — North Carolina Cases. 
 
 N. C. Law Rep. — North Carolina Law Repository. 
 
 N. C. Term R. — North Carolina Term Reports. This volume 
 
 is sometimes cited 2 Tayl. 
 N. Chipm. R. — N. Chipman's Reports. 
 N. E. I. — Non est inventus. 
 N. H. Rep. — New Hampshire Reports. 
 N. H. & G. — Nicholl, Hare and Garrow's Reports. 
 N. L. — Nelson's edition of Lutwyche's Reports. 
 N. L. — Non liquet. 
 
 N. & M. — Neville and Manning's Reports. 
 N. & P. — Neville and Perry's Reports. 
 N. P. — Nisi Prius. 
 
 N. & M'C— Nott and M'Cord's Reports. 
 
 N. R. or New R. — New Reports ; the new series, or 4 & 5 
 Bos. & Pull. Reports are usually cited N. R. 
 
 N. S. — New Series of the Reports of the Supreme Court of 
 Louisiana. 
 
 N. Y. R. S.— New York Revised Statutes. 
 
 Nar. Conv. — Nares on Convictions. 
 
 Neal's F. & F. — Neal's Feasts and Fasts; an Essay on the 
 Rise, Progress and Present State of the Laws relating to 
 Sundays and other Holidays, and other days of Fasting. 
 
 Nels. Ab. — Nelson's Abridgment. 
 
 Nels. Lex Maner. — Nelson's Lex Maneriorum. 
 
 Nels. R. — Nelson's Reports. 
 
 Nem. con. — Nemine contradicenti. 
 
 Nem. dis. — Nemine dissentiente. 
 
 Nev. & Mann. — Neville and Manning's Reports. 
 
 Nev. & Per. — Neville and Perry's Reports. 
 
 New Benl. — Benloe's Reports. 
 
 New Rep. — New Reports. A continuation of Bosanquet and 
 Puller's Reports. See B. & P. 
 
 Newf. Rep. — Newfoundland Reports. 
 
 Newl. Contr. — Newland's Treatise on Contracts. 
 
 Newl. Ch. Pr. — Newland's Cancery Practice. 
 
 Newn. Conv. — Newnam on Conveyancing. 
 
 Ni. Pri. — Nisi Prius. 
 
 Nich. Adult. Bast. — Nicholas on Adulterine Bastardy. 
 
 Nich. Har. & Gar. — Nicholl, Hare and Garrow's Reports. 
 
 Nient cul. — Nient culpable, old French, not guilty. 
 
 Nol. P. L. — Nolan's Poor Laws. 
 
 Nol. R. — Nolan's Reports of Cases relative to the Duty and 
 Office of Justice of the Peace. 
 
 Non cul. — Non culpabilis, not guilty. 
 
xlvi ABBREVIATIONS. 
 
 North. — Northington's Reports. 
 
 Nott & M'Cord.— Nott and M'Cord's Reports. 
 
 Nov. — Novelise, the Novels. 
 
 Nov. Rec. — Novisimi Recopilacion de las Leyes de Espaiia. 
 
 Noy's Max. — Noy's Maxims. Noy's R. — Noy's Reports. 
 
 O. Benl.— Old Benloe. 
 
 O. Bridg. — Orlando Bridgman's Reports. 
 
 O. C, — Old Code ; so is denominated the Civil Code of Lou- 
 isiana 1808. 
 
 0. N. B.— Old Natura Brevium. Vide Vet. N. B. 
 
 O. Ni. — These letters, which are an abbreviation for oneratur 
 nisi habent sufficientem exonerationem, are, according to the 
 practice of the English Exchequer, marked upon each head 
 of a sheriff's account for issues, amerciaments and mean 
 profits. 4 Inst. 116, 
 
 Oblig. — Obligations. 
 
 Observ . — Observations. 
 
 Off.— Office. Off. Br.— Officiana Brevium. 
 
 Off. Ex. — Wentworth's Office of Executors. 
 
 Ohio R. — Ohio Reports. 
 
 Oldn.— Oldnall's Welch Practice. 
 
 Onsl. N. P. — Onslow's Nisi Prius. 
 
 Ord. Amst. — Ordinance of Amsterdam. 
 
 Ord. Antw. — Ordinance of Antwerp. 
 
 Ord. Bilb. — Ordinance of Bilboa. 
 
 Ord. Ch. — Orders in Chancery. 
 
 Ord. Cla. — Lord Clarendon's Orders. 
 
 Ord. Copenh. — Ordinance of Copenhagen. 
 
 Ord. Cur. — Orders of Court. 
 
 Ord. Flor. — Ordinances of Florence. 
 
 Ord. Gen. — Ordinance of Genoa. 
 
 Ord. Hamb. — Ordinance of Hamburg. 
 
 Ord. Konigs. — Ordinance of Konigsburg. 
 
 Ord. Leg. — Ordinances of Leghorn. 
 
 Ord. de la Mar.— Ordonnance de la Marine de Louis XIV. 
 
 Ord. Port. — Ordinances of Portugal. 
 
 Ord. Prus. — Ordinances of Prussia. 
 
 Ord. Rott. — Ordinances of Rotterdam. 
 
 Ord. Swed. — Ordinances of Sweden. 
 
 Ord on Us. — Ord on the Law of Usury. 
 
 Orfil. Med. Jur. — Orfila's Medical Jurisprudence. 
 
 Orig. — Original. 
 
 Ought. — Oughton's Ordo Judiciorum. i 
 
 Overt. R. — Overton's Reports. 
 
 Ow. — Owen's Reports. 
 
 Owen, Bankr. — Owen on Bankruptcy. 
 
ABBREVIATIONS. xlvii 
 
 P. — Page or part. Pp. — Pages. 
 
 P. — Paschalis, Easter term. 
 
 P. C— Pleas of the Crown. 
 
 P. & D. — Perry and Davison's Reports. 
 
 P. & K. — Perry and Knapp's Election Cases. 
 
 P. & M.— Philip and Mary ; as, 1 & 2 P. & M. c. 4. 
 
 P. N. P.— Peake's Nisi Prius. 
 
 P. P. — Propria persona ; in his own person. 
 
 Pa. R. — Pennsylvania Reports. 
 
 P. R. or P. R. C. P. — Practical Register in the Common Pleas. 
 
 P. Wms. — Peere Williams' Reports. 
 
 Page on Div. — Page on Divorces. 
 
 Paige's R. — Paige's Chancery Reports. 
 
 Paine's R. — Paine's Reports. 
 
 Pal. — Palmer's Reports. 
 
 Pal. Ag. — Paley on the Law of Principal and Agent. 
 
 Pal. Conv. — Paley on Convictions. 
 
 Palm. Pr. Lords. — Palmer's Practice in the House of Lords. 
 
 Pand. — Pandects. Vide Dig. 
 
 Par. — Paragraph ; as, 29 Eliz. cap. 5, par. 21. 
 
 Par. & Fonb. M. J. — Paris and Fonblanque on Medical Juris- 
 prudence. 
 
 Pardess. — Pardessus, Cours de Droit Commercial. In this 
 work Pardessus is cited in several ways, namely : Pardes. 
 Dr. Com. part 3, tit. 1, c. 2, s. n. 286 ; or 2 Pardes. n. 286, 
 which is the same reference. 
 
 Park on Dow. — Park on Dower. 
 
 Park, Ins. — Park on Insurance. 
 
 Park. R. — Sir Thomas Parker's Reports of Cases concerning 
 the Revenue, in the Exchequer. 
 
 Park, on Ship. — Parker on Shipping and Insurance. 
 
 Park. Pr. in Ch. — Parker's Practice in Chancery. 
 
 Pari. Hist. — Parliamentary History. 
 
 Pars. Rep. — Parson's Reports. 
 
 Patch on Mortg. — Patch's Treatise on the Law of Mortgages. 
 
 Paul's Par. Off.— Paul's Parish Officer. 
 
 Pay. Mun. Rights. — Payne's Municipal Rights. 
 
 Peak. Add. Cas. — Peake's Additional Cases. 
 
 Peak, C. N. P. — Peake's Cases, determined at Nisi Prius and 
 in the K. B. 
 
 Peake, Ev. — Peake on the Law of Evidence. 
 
 Peck, R. — Peck's Reports. 
 
 Peck's Tr.— Peck's Trial. 
 
 Peckw. E. C. — Peckwell's Election Cases. 
 
 Penn. Bl. — Pennsylvania Blackstone, by John Read, Esq. 
 
 Penn. Law Jo. — Pennsylvania Law Journal. 
 
xlviii ABBREVIATIONS. 
 
 Penn. R. — Pennington's Reports. The Pennsylvania Reports 
 are sometimes cited Penn. R., but more properly, for the 
 sake of distinction, Penna. R. 
 Penn. St. R. — Pennsylvania State Reports. 
 Penna. Pr. — Pennsylvania Practice ; also cited Tro. & Hal. 
 
 Pr.— Troubat & Haly's Practice. 
 Penna. R. — Pennsylvania Reports. 
 Pennsylv. — Pennsylvania Reports. 
 
 Penr. Anal.— Penruddocke's Analysis of the Criminal Law. 
 Penult. — The last but one. 
 Per. & Dav. — Perry and Davison's Reports. 
 Per. & Knapp. — Perry and Knapp's Election Cases. 
 Perk. — Perkins on Conveyancing. 
 Perk. Prof. B.— Perkins' Profitable Book. 
 Perpig. on Pat. — Perpigna on Patents. The full title of this 
 work is, " The French Law and Practice of Patents, for In- 
 ventions, Improvements, and Importations. By A. Perpigna, 
 A. M. L. B., Barrister in the Royal Court of Paris, Member, 
 of the Society for the Encouragement of Arts, etc. The 
 work is well written in the English language. The author 
 is a French lawyer, and has written another work on the 
 same subject in French. 
 Pet. Ab. — Petersdorff's Abridgment. 
 Pet. Adm. Dec. — Peters' Admiralty Decisions. 
 Pet. on Bail, or Petersd. on Bail. — PetersdoflF on the Law of 
 
 Bail. 
 Pet. R. — ^Peters' Supreme Court Reports. 
 Pet. C. C. R.— Peters' Circuit Court Reports. 
 Petting, on Jur. — Pettingal on Juries. 
 Phil. Ev. — Phillips' Evidence. 
 Phil. Ins. — Phillips on Insurance. 
 Phil. St. Tr.— Phillips' State Trials. 
 
 Phill. Civ. and Can. Laws. — Phillimore on the Study of the 
 
 Civil and Canon Law, considered in relation to the State, 
 
 the Church, and the Universities, and in connection with the 
 
 College of Advocates. 
 
 Phill. on Dom. — Phillimore on the Law of Domicil. 
 
 Philim. or Phillim. E. R. — Phillimore's Ecclesiastical Reports. 
 
 This forms a part of the English Ecclesiastical Reports. 
 Pick. R. — Pickering's Reports. 
 Pig. — Pigot on Recoveries. 
 
 Pike's Rep. — Reports of Cases argued and determined in the 
 Supreme Court of Law and Equity of the State of Arkansas. 
 By Albert Pike. These Reports are cited Ark. Rep. 
 Pitm. Prin. & Sur. — Pitman on Principal and Surety. 
 PI. — Placitum or plea. PI. or Plow, or PI. Com. — Plowden's 
 Commentaries or Reports. 
 
ABBREVIATIONS. xlix 
 
 Plff.— Plaintiff. 
 
 Piatt on Gov. — Piatt on the Law of Covenants. 
 
 Piatt on Lea. — Piatt on Leases. 
 
 Pol. — Pollexfen's Reports. 
 
 Poph. — Popham's Reports. The cases at the end of Popham's 
 
 Reports are cited 2 Poph. 
 Port. R. — Porter's Reports. 
 
 Poth. — Pothier. The numerous works of Pothier are cited by 
 abbreviating his name Poth. and then adding the name of the 
 treatise ; the figures generally refer to the number, as Poth. 
 Ob. n. 100 ; which signifies Pothier's Treatise on the Law 
 of Obligations, number 100. Poth. du Mar. — Pothier du 
 Mariage ; Poth. Vente. — Pothier Traite de Vente, etc. His 
 Pandects, in 24 vols, are cited Poth. Pand. with the book, 
 title, law, etc. 
 
 Pott's L. D.— Pott's Law Dictionary. 
 
 Pow. — Powell. Pow. Contr. — Powell on Contracts. Pow. 
 Dev. — Powell on Devises. Pow. Mortg. — Powell on Mort- 
 gages. Pow. Powers. — Powell on Powers. 
 
 Poyn. on M. & D. — Poynter on the Law of Marriage and 
 Divorce. 
 
 Pr. — Principium. In pr. — In principium ; in the beginning. 
 
 Pr. Ex. Rep. or Price's E. R. — Price's Exchequer Reports. 
 
 Pr. Reg. Cha. — Practical Register in Chancery. 
 
 Pr. St.— Private Statute. 
 
 Pr. Stat.— Private Statute. 
 
 Pract. Reg. C. P. — Practical Register of the Common Pleas. 
 
 Pract. Reg. in Ch. — Practical Register in Chancery. 
 
 Prat, on H. & W. — Prater on the Law of Husband and Wife. 
 
 Pref. — Preface. 
 
 Prel. — Preliminaire. 
 
 Prest. — Preston. Prest. on Est. — Preston on Estates. Prest. 
 Abs. Tit. — Preston's Essay on Abstracts of Title. Prest. on 
 Conv. — Preston's Treatise on Conveyancing. Vide 4 Kent 
 Com. 101, note. 
 
 Prest. on Leg. — Preston on Legacies. 
 
 Pri. — Price's Reports. 
 
 Price's Ex. Rep. — Price's Exchequer Reports. 
 
 Price's Gen. Pr. — Price's Gen. Practice. 
 
 Prin. — Principium, the beginning of a title or law. 
 
 Prin. Dec. — Printed Decisions. 
 
 Priv. Lond. — Customs or Privileges of London. 
 
 Pro. LL. — Province Laws. 
 
 Pro. quer. — Pro querens, for the plaintiff. 
 
 Proct. Pr. — Proctor's Practice. 
 
 Puff. — PuffendorflPs Law of Nature. 
 
 Vol. I. d 
 
1 ABBREVIATIONS. 
 
 Q. — Qusestione, in such a question. 
 
 Q. B. — Queen's Bench. 
 
 Q. B. R. — Queen's Bench Reports, by Adolphus and Ellis. 
 
 New series. 
 Q. t. — Qui tam. 
 Qu. — Quere. 
 
 Q. Van Weyt. — Q. Van Weytsen on Average. 
 Q. Warr. — Quo Warranto ; (q. v.) The letters (q. v.) quod 
 
 vide, which see, refer to the article mentioned immediately 
 
 before them. 
 Qu. — QusBstione, in such a question. 
 Qu. claus. freg. — Quare clausvmi fregit. (q. v.) 
 Quaest. — Qusestione, in such a question. 
 Quest. — Questions. 
 
 Quinti Quinto. — Year-book, 5 Henry V. 
 Quon. Attach. — Quoniam Attachiamenta. See Dalr. F. L. 47. 
 
 R. — Resolved, ruled, or repealed. 
 
 R.— Richard ; as, 2 R. II., c. 1. 
 
 Rich. Rep. — Richardson's (S. C.) Reports. 
 
 RC. — Rescriptum. 
 
 R. & M. — Russell and Mylne's Reports. 
 
 R. & M. C. C— Ryan and Moody's Crown Cases. 
 
 R. & M. N. P.— Ryan and Moody's Nisi Prius Cases. 
 
 R. & R. — Russell and Ryan's Crown Cases. 
 
 R. M. Charlt.— R. M. Charlton's Reports. 
 
 RS. — Responsum. 
 
 R. S. L. — Reading on Statute Law. 
 
 Ram on Judgm. — Ram on the Law relating to Legal Judg- 
 ments. 
 
 Rand. Perp. — Randall on the Law of Perpetuities. 
 
 Rand. R. — Randolph's Reports. 
 
 Rast. — Rastall's Entries. 
 
 Rawle's R. — Rawle's Reports. 
 
 Rawle, Const. — Rawle on the Constitution. 
 
 Ray's Med. Jur. — Ray's Medical Jurisprudence of Insanity. 
 
 Raym. or, more usually, Ld. Raym. — Lord Raymond's Re- 
 ports. T. Raym. — Sir Thomas Raymond's Reports. 
 
 Re. fa. lo. — Recordari facias loquelam. 
 
 Rec. — Recopilacion. Rec. — Recorder ; as. City Hall Rec. 
 
 Redd, on Mar. Com.— Reddie's Historical View of the Law ol 
 Maritime Commerce. 
 
 Redesd. PL— Redesdale's Equity Pleading. This work is also 
 and most usually cited Mitf. PI. 
 
 Reeves' H. E. L.— Reeves' History of the English Law 
 Reeves on Ship. — Reeves on the Law of Shipping and Navi 
 gation. 
 
ABBREVIATIONS. li 
 
 Reeves on Des. — Reeves on Descents. 
 Reg. — Regula, rule. Reg. — Register. 
 Reg. Brev. — Registrum Brevium, or Register of Writs. 
 Reg. Gen. — Regulae generalis. 
 Reg. Jud. — Registrum Judiciale. 
 Reg. Mag. — Regiam Magestatem. 
 Reg. PI. — Regula Placitandi. 
 
 Renouard, des Brev. d'Inv. — Traite des Brevets d'Invention, 
 de Perfectionement, et d'Importation, par Augustin Charles 
 Renouard. 
 Rep. — The Reports of Lord Coke are frequently cited 1 Rep., 
 
 2 Rep., etc., and sometimes they are cited Co. 
 Rep . — Repertoire. 
 
 Rep. Eq. — Gilbert's Reports in Equity. 
 
 Rep. Q. A. — Reports of Cases during the time of Queen Anne. 
 Rep. T. Finch. — Reports tempore Finch. 
 Rep. T. Hard. — Reports during the time of Lord Hardwicke. 
 Rep. T. Holt. — Reports tempore Holt. 
 Rep. T. Talb. — Reports of Cases decided during the time of 
 
 Lord Talbot. 
 Res. — Resolution. The Cases reported in Coke's Reports, are 
 divided into resolutions on the different points of the Case, 
 and are cited 1 Res. etc. 
 Ret. Brev. — Retorna Brevium. 
 Rev. St. or Rev. Stat. — Revised Statutes. 
 Rey, des Inst, de I'Anglet. — Des Institutions Judiciaries de 
 1' Angleterre comparees avec celles de la France. Par Joseph 
 Rey. 
 Reyn. Inst. — Institutions du Droit des Gens, etc., par Gerard de 
 
 Reyneval. 
 Ric. — Richard ; as, 12 Ric. II., c. 15. 
 
 Rice's Rep. — Reports of Cases in Chancery argued and deter- 
 mined in the Court of Appeals and Court of Errors of South 
 Carolina. By William Rice, State Reporter. 
 Rich. Pr. C. P. — Richardson's Practice in the Common Pleas. 
 Rich. Pr. K. B. — Richardson's Practice in the King's Bench. 
 Rich. Eq. R. — Richardson's Equity Reports. 
 Rich, on Wills. — Richardson on Wills. 
 
 Ridg. Irish T. R. — Ridgway, Lapp, and Schoale's Term Re- 
 ports in the K. B., Dublin. Sometimes this is cited Ridg. 
 L. &S. 
 Ridg. P. C. — Ridgeway's Cases in Parliament. 
 Ridg. Rep. — Ridgeway's Reports of Cases in K. B. and Chan- 
 cery. 
 Ridg. St. Tr. — Ridgeway's Reports of State Trials in Ireland. 
 Ril. Ch. Cas. — Riley's Chancery Cases. 
 Rob. Adm. Rep. — Robinson's Admiralty Reports. 
 
lii ABBREVIATIONS. 
 
 Rob. Cas. — Robertson's Cases in Parliament, from Scotland. 
 Rob. Dig. — Roberts' Digest of the English Statutes in force in 
 
 Pennsylvania. 
 Rob. Entr. — Robinson's Entries. 
 Rob. on Fr. — Robert? on Ffauds. 
 
 Rob. on Fraud. Conv. — Roberts on Fraudulent Conveyances. 
 Rob. on Gavelk. — Robinson on Gavelkind. 
 Rob. Lo. Rep. — Robinson's Louisiana Reports. 
 Rob. Just. — Robinson's Justice of the Peace. 
 Rob. Pr. — Robinson's Practice in Suits at Law, in Virginia. 
 Rob. V. Rep. — Robinson's (Virginia) Reports. 
 Rob. on Wills. — Roberts' Treatise on the Law of Wills and 
 
 Codicils. 
 Roc. Ins. — Roccus on Insurance. Vide Ing. Roc. 
 Rog. Eccl. Law. — Rogers' Ecclesiastical Law. 
 Rog. Rec. — Rogers' City Hall Recorder. 
 Roll. — Rolle's Abridgment. Roll. R. — Rolle's Reports. 
 Rom. Cr. Law. — Romilly's Observations on the Criminal Law 
 
 of England, as it relates to Capital Punishments. 
 Rop. on H. & W. — A Treatise on the Law of Property, arising 
 
 from the relation between Husband and Wife. By R. S. 
 
 Donnison Roper. 
 Rop. Leg. — Roper on Legacies. 
 Rop. on Revoc. — Roper on Revocations. 
 Rose. — Roscoe. Rose, on Act. — Roscoe on Actions relating to 
 
 Real Property. Rose. Civ. Ev. — Roscoe's Digest of the 
 
 Law of Evidence on the Trial of Actions at Nisi Prius. 
 
 Rose. Cr. Ev. — Roscoe on Criminal Evidence. Rose, on 
 
 Bills. — Roscoe's Treatise on the Law relating to Bills of 
 
 Exchange, Promissory Notes, Bankers' Checks, etc. 
 Rose's R. — Rose's Reports of Cases in Bankruptcy. 
 Ross on V. & P. — Ross on the Law of Vendors and Purchasers. 
 Rot. Pari. — Rotulae Parliamentariae. 
 Rowe's Sci. Jur. — Rowe's Scintilla Juris. 
 Rub. or Ruhr. — Rubric. 
 Ruffh. — Ruffhead's Statutes at Large. 
 Ruff, or RufEn's R. — Ruffin's Reports. 
 Runn. Ej. — Runnington on Ejectments. 
 Runn. Stat. — Runnington's Statutes at Large. 
 Rus. & Myl.— Russell and Mylne's Chancery Reports. 
 Rush. — Rush worth's Collections. 
 Russ. Cr. — Russell on Crimes and Misdemeanors. 
 Russ. & Myl.— Russell and Mylne's Reports of Cases in 
 
 Chancery. 
 Russ. on Fact. — Russell on the Laws relating to Factors and 
 
 Brokers. 
 Russ. R. — Russell's Reports of Cases in Chancery. 
 
ABBREVIATIONS. liii 
 
 Russ. & Ry. — Russell and Ryan's Crown Cases. 
 Rutherf. Inst. — Rutherford's Institutes of Natural Law. 
 Ry. F. — Ryder's Foedera. 
 
 Ry. & Mo. — Ryan and Moody's Nisi Prius Reports. In E. C. 
 L. R. Ry. & Mo. C. C— Ryan and Moody's Crown Cases. 
 Ry. Med. Jur. — Ryan on Medical Jurisprudence. 
 
 S. ^. — Section. 
 
 S. B. — Upper Bench. 
 
 S. & B. — Smith and Batty's Reports. 
 
 S. C. — Same Case. 
 
 S. C. C. — Select Cases in Chancery. 
 
 S. C. Rep. — South Carolina Reports. 
 
 S. & L. — Schoale and Lefroy's Reports. 
 
 S. & M. — Shaw and Maclean's Reports. 
 
 S. & M. Ch. R.— Smedes and Marshall's Reports of Cases 
 
 decided by the Superior Court of Chancery of Mississippi. 
 S. & M. Err. & App. — Smedes and Marshall's Reports of Cases 
 
 in the High Court of Errors and Appeals of Mississippi. 
 S. P.— Same Point. 
 
 S. & R. — Sergeant and Rawle's Reports. 
 S. & S. — Sausse and Scully's Reports. 
 
 S. & S. — Simon and Stuart's Chancery Reports. In Con. C. R. 
 Sa. & Scul. — Sausse and Scully's Reports. 
 Sandl. St. Pap. — Sandler's State Papers. 
 Salk. — Salkeld's Reports. 
 Sandf. Rep. — Reports of Cases argued and determined in the 
 
 Court of Chancery of the State of New York, before the 
 
 Hon. Lewis H. Sandford, Assistant Vice Chancellor of the 
 
 First Circuit. 
 Sand. U. & T. — Sanders on Uses and Trusts. 
 Sanf. on Ent. — Sanford on Entails. 
 Sant. de Assec— Santerna, de Assecurationibus. 
 Saund. — Saunders' Reports. 
 Saund. PI. & Ev. — Saunders' Treatise on the Law of Pleading 
 
 and Evidence. 
 Sav. — Saville's Reports. 
 Sav. Dr. Rom. — Savigny, Droit Remain. 
 Sav. Dr. Rom. M. A. — Savigny, Droit Remain au Moyan Age. 
 Sav. Hist. Rom. Law. — Savigny's History of the Roman Law 
 
 during the Middle Ages. Translated from the German of 
 
 Carl Von Savigny, by E. Cathcart. 
 Say. — Sayer's Reports. Say. Costs. — Sayer's Law of Costs. 
 SC. — Senatus Consultum. 
 Scac. de Cam. — Scaccia de Cambiis. 
 Scam. Rep. — Scammon's Reports of Cases argued and determined 
 
 in the Supreme Court of Hlinois. 
 
liv ABBREVIATIONS. 
 
 Scan. Mag. — Scandalum Magnatum. 
 
 Sch. & Lef. — Schoale and Lefroy's Reports. 
 
 Scheiff. Pr. — ScheifFer's Practice. 
 
 Schul. Aq. R. — Schultes on Aquatic Rights. 
 
 Sci. fa. — Scire facias. 
 
 Sci. fa. ad dis. deb. — Scire facias ad disprobandum debitum. 
 
 Scil. — Scilicet, that is to say. 
 
 Sco. N. R. — Scott's New Reports. 
 
 Scott's R. — Scott's Reports. 
 
 Scriv. Copyh. — Scriven's Copyholds. 
 
 Seat. F. Ch. — Seaton's Forms in Chancery. By Henry Wilmot 
 
 Seaton. 
 Sec. — Section. 
 
 Sec. Leg. — Secundum legem ; according to law. 
 Sec. Reg. — Secundum regulam ; accordin'g to rule. 
 Sedgw. on Dam. — Sedgwick on Damages. 
 Sedgw. on H. & W. — ^Sedgwick on the Law of Husband and 
 
 Wife. 
 Sel. Ca. Chan. — Select Cases in Chancery. Vide S. C. C. 
 Seld. Mar. Cla.— Seldon's Mare Clausum. 
 Self. Tr.— Selfridge's Trial. 
 Sell. Pr.— Sellon's Practice in K. B. and C. P. 
 Selw. N. P. — Selwyn's Nisi Prius. Selw. R. — Selwyn's Reports. 
 
 These Reports are usually cited M. & S. — Maule and Selwyn's 
 
 Reports. 
 Sem. or Semb. — Semble, it seems. 
 Sen. — Senate. 
 Seq. — Sequentia . 
 
 Serg. on Att. — Sergeant on the Law of Attachment. 
 Serg. Const. Law. — Sergeant on Constitutional Law. 
 Serg. on Land L. — Sergeant on the Land Laws of Pennsylvania. 
 Serg. & Lowb. — Sergeant and Lowber's edition of the English 
 
 Common Law Reports ; more usually cited Eng. Com. Law 
 
 Rep. 
 Serg. & Rawle. — Reports of Cases adjudged in the Supreme 
 
 Court of Pennsylvania. By Thomas Sergeant and William 
 
 Rawle, jr. 
 Sess. Ca. — Sessions Cases in K. B., chiefly touching Settle- 
 ments. 
 Set. on Dec. — Seton on Decrees. 
 Shaw & Macl. — Shaw and Maclean's Reports. 
 Shelf. Lun. — Shelford on Lunacy. 
 Shelf, on Mort. — Shelford on the Law of Mortmain. 
 Shelf, on Railw. — Shelford on Railways. 
 Shelf, on R. Pr. — Shelford on Real Property. 
 Shep. To. — Sheppard's Touchstone. 
 Shepl. R. — Shepley's Reports. 
 
ABBREVIATIONS. Iv 
 
 Sher.— Sheriff. 
 
 Show. P. C. — Shower's Parliamentary Cases. 
 
 Show. R. — Shower's Reports in the Court of King's Bench. 
 
 Shub. Jur. Lit. — Shuback de Jure Littoris. 
 
 Sid. — Siderfin's Reports. 
 
 Sim. — Simon's Chancery Reports. In Con. C. R. 
 
 Sim. & Stu. — Simon and Stuart's Chancery Reports. In Con. 
 C. R. 
 
 Skene, Verb. Sign. — Skene de Verborum Significatione ; an ex- 
 planation of terms, difficult words, etc. 
 
 Skin. — Skinner's Reports. 
 
 Skirr. Und. Sher. — Skirrow's Complete Practical Under Sheriff. 
 
 Slade's Rep. — Slade's Reports. More usually cited Vermont 
 Reports. 
 
 Smed. & Marsh. Ch. R, — Smedes and Marshall's Reports of 
 Cases decided by the Superior Court of Chancery of Missis- 
 sippi. 
 
 Smed. & Marsh. Err. & App. — Smedes and Marshall's Reports 
 of Cases decided by the High Court of Errors and Appeals 
 of Mississippi. 
 
 Smith & Batty. — Smith and Batty's Reports. 
 
 Smith's Ch. Pr. — Smith's Chancery Practice. 
 
 Smith's For. Med. — Smith's Forensic Medicine. 
 
 Smith's Hints. — Smith's Hints for the Examination of Medical 
 Witnesses. 
 
 Smith on M. L. — Smith on Mercantile Law. 
 
 Sm. on Pat. — Smith on the Law of Patents. 
 
 Smith's Rep. — Smith's Reports of Cases decided by the Su- 
 preme Court of Indiana. 
 
 Smith's R. — Smith's Reports in K. B., together with Cases in 
 the Court of Chancery, from 44 to 46 Geo. III. 
 
 Sol. — Solutio, the answer to an objection. 
 
 South Car. R. — South Carolina Reports. 
 
 South. R. — Southard's Reports. 
 
 Sp. of Laws. — Spirit of Laws, by Montesquieu. 
 
 Spelm. Feuds. — Spelman on Feuds. 
 
 Spel. Gl. — Spelman's Glossary. 
 
 Spence on Eq. Jur. of Ch. — Spence on the Equitable Jurisdic- 
 tion of Chancery. 
 
 Spenc. R. — Spencer's Reports. 
 
 Speers' Eq. Cas. — Equity Cases argued and determined in the 
 Court of Appeals of South Carolina. By R. H. Speers. 
 
 Speers' Rep. — Speers' Reports. 
 
 SS. usually put in small letters, ss. — Scilicet, that is to say. 
 
 St. or Stat. — Statute. 
 
 St. Armand's Hist. Ess. — St. Armand's Historical Essay on the 
 Legislative Power of England. 
 
Ivi ABBREVIATIONS. 
 
 Slant. R. — Stanton's Reports. 
 Stath. Ab. — Stathan's Abridgment. 
 Stath. — Statham's Abridgment. 
 St. Cas.— Stillingfleet's Cases. 
 St. Tr.— State Trials. 
 
 Stair's Inst. — Stair's Institutions of the Law of Scotland. 
 Stallm. on Elec. & Sat. — Stallman on Election and Satisfac- 
 tion. 
 Stark, or Starkie's Ev. — Starkie on the Law of Evidence. Stark. 
 Cr. PI.— Starkie's Criminal Pleadings. Stark. R.— Starkie's 
 Reports. In E. C. L. R. Stark, on SI. — Starkie on Slander 
 and Libel. 
 
 Stat. — Statutes. , 
 
 Stat. Wes. — Statute of Westminster. 
 
 Staunf. or Staunf. P. C— Staunfcrd's Pleas of the Crown. 
 
 Stearne on R. A. — Stearne on Real Actions. 
 
 Steph. Comm. — Stephen's New Commentaries on the Law of 
 England, (partly founded on Blackstone.) 
 
 Steph. Cr. Law. — Stephen on Criminal Law. Steph. PI. — 
 Stephen on Pleading. Steph. Proc. — Stephen on Procura- 
 tions. 
 
 Steph. on Slav. — Stephens on Slavery. 
 
 Stev. on Av. — Stevens on Average. 
 
 Stev. & B. on Av. — Stevens and Beneke on Average. 
 
 Stew. Adm. Rep. — Stewart's Reports of Cases argued and de- 
 termined in the Court of Vice Admiralty at Halifax. 
 
 Stew. R. — Stewart's Reports. 
 
 Stew. & Port. — Stewart and Porter's Reports. 
 
 Story, Ag. — Story on Agency. 
 
 Story on Bail. — Story's Commentaries on the Law of Bail- 
 ments. 
 
 Story, Confl. — Story on the Conflict of Laws. 
 
 Story on Const. — Story on the Constitution of the United 
 States. 
 
 Story on Eq. — Story's Commentaries on Equity Jurispru- 
 dence. 
 
 Story's L. U. S. — Story's edition of the Laws of the United 
 States, in 3 vols. The 4th and 5th volumes are a con- 
 tinuation of the same work by George Sharswood, Esq. 
 
 Story on Partn. — Story on Partnership. 
 
 Story on PL — Story on Pleading. 
 
 Story's R. — Story's Reports. 
 
 Str. — Strange's Reports. 
 
 Stracc. de Mer. — Straccha de Mercatura, Navibus Assecura- 
 tionibus. 
 
 Strah. Dom. — Straham's Translation of Domat's Civil Law. 
 
 Strob. R. — Strobhart's Reports. 
 
ABBREVIATIONS. Ivii 
 
 Stroud's Dig. — Stroud's Digest of the. Laws of Pennsylva- 
 nia. 
 Stuart's (L. C.) R. — Reports of Cases in the Court of 
 King's Bench in the Provincial Court of Appeals of Lower 
 Canada, and Appeals from Lower Canada, before the 
 Lords of the Privy Council. By George O'Kill Stuart, 
 Esq. 
 Sty. — Style's Reports. 
 Sugd. or Sugd. Pow. — Sugden on Powers. Sugd. Vend. — 
 
 Sugden on Vendors. Sugd. Lett. — Sugden's Letters. 
 Sull. Lect. — Sullivan's Lectures on the Feudal Law, and the 
 
 Constitution and Laws of England. 
 Sull. on Land Tit. — Sullivan's History of Land Titles in Mas- 
 sachusetts. 
 Sum. — Summa, the summary of a law. 
 Sumn. R. — Sumner's Circuit Court Reports. 
 Supers. — Supersedeas. 
 
 Supp. — Supplement. Supp. to Ves. Jr. — Supplement to Vesey 
 Junior's Reports. This is an excellent collection of notes on 
 the points decided in the Reports. 
 Swan on Eccl. Cts. — Swan on the Jurisdiction of Ecclesiastical 
 
 Courts. 
 Swanst. — Swanston's Reports. 
 
 Sweet on Wills. — Sweet's Popular Treatise on Wills. 
 Swift's Ev.— Swift's Evidence. 
 Swift's Sys. — Swift's System of the Laws of Connecticut. 
 
 Swift's Dig. — Swift's Digest of the Laws of Connecticut. 
 Sw. — Swinburne on Wills. 
 
 Swinb. — Swinburne on the Law of Wills and Testaments. 
 This work is generally cited by reference to the part, book, 
 chapter, etc. 
 Swinb. on Desc. — Swinburne on the Law of Descents. 
 Swinb. on Mar. — Swinburne on Marriage. 
 Swinb. on Spo. — Swinburne on Spousals. 
 Sys. Plead. — System of Pleading. 
 
 T.— Title. 
 
 T. & G. — Tyrwhitt and Granger's Reports. 
 
 T. & P.— Turner and Phillips' Reports. 
 
 T. Jo. — Sir Thomas Jones' Reports. 
 
 T. L. — Termes de la Ley, or Terms of the Law. 
 
 T. R. — Term Reports. Ridgway's Reports are sometimes cited 
 
 Irish T. R. 
 T. R.— Teste Rege. 
 
 T. & R. C. R. — Turner and Russell's Chancery Reports. 
 T. & R. — Turner and Russell's Reports. 
 
Iviii ABBREVIATIONS. 
 
 T. R. E. or T. E. R.— Tempore Regis Edwardi. This 
 abbreviation is frequently used in Doomsday Book, and 
 in the more ancient law writers. See Tyrrel's Hist. Eng., 
 Introd. viii. p. 49. See also Co. Inst. 86, a, where, in a 
 quotation from Doomsday Book, this abbreviation is in- 
 terpreted Terra Regis Edwardi ; but in Cowell's Diet. verb. 
 ■ Reveland, it is said to be wrong. 
 
 T. Raym. — Sir Thomas Raymond's Reports. 
 
 T. U. P. Charlt.— T. U. P. Charlton's Reportg. 
 
 Tait on Ev. — Tait on Evidence. 
 
 Taml. on Ev. — Tamlyn on Evidence, principally with reference 
 to the Practice of the Court of Chancery, and in the Master's 
 Office. 
 
 Taml. R. — Tamlyn's Reports of Cases decided in Chancery. 
 
 Taml. T. Y. — Tamlyn on Terms for Years. 
 
 Tapia, Jur. Mer. — Tratade de Jurisprudentia Mercantil. 
 
 Taunt.— Taunton's Reports. In E. C. L. R. 
 
 Tayl. on Ev. — Taylor on Evidence. 
 
 Tayl. Civ. L,— Taylor's Civil Law. 
 
 Tayl. Law. Glo. — Taylor's Law Glossary. 
 
 Tayl. R.— Taylor's Reports. 
 
 Tayl. L. & T. — Taylor's Treatise on the American Law of 
 Landlord and Tenant. 
 
 Tayl. on Pois. — Taylor on Poisons. 
 
 Tech. Diet. — Crabb's Technological Dictionary. 
 
 Tex. Rep. — Texas Reports. 
 
 Thach. Grim. Cas. — Thacher's Criminal Cases. 
 
 Th. Br. — Thesaurus Brevium. 
 
 Th. Dig.— Thelvall's Digest. 
 
 Theo. of Pres. Pro. — Theory of Presumptive Proof. 
 
 Theo. Pres. Pro. — Theory of Presumptive Proof, or an Inquiry 
 into the Nature of Circumstantial Evidence. 
 
 Tho. Co. Litt. — Coke upon Littleton ; newly arranged on the 
 plan of Sir Matthew Hale's Analysis. By J. H. Thomas, Esq. 
 
 Thomp. on Bills. — Thompson on Bills. 
 
 Tho. U. J. — Thomas on Universal Jurisprudence. 
 
 Tidd's Pr.— Tidd's Practice. 
 
 Tit.— Title. 
 
 Toll. Ex.— Toller's Executors. 
 
 Toml. L. D. — Tomlin's Law Dictionary. 
 
 Toth.— Tothill's Reports. 
 
 Touchs. — Sheppard's Touchstone. 
 * Toull. — Le Droit Civil Fran9ais suivant I'ordre du Code ; ou- 
 vrage dans lequel on a tache de reunir la theorie a la practique. 
 Par M. C. B. M. Toullier. This work is sometimes cited Toull. 
 Dr. Civ. Fr. liv. 3, t. 2, c. 1, n. 6 ; at other times, 3 TouU. n. 
 86, which latter signifies vol. 3 of TouUier's work. No. 86. 
 
ABBREVIATIONS. lix 
 
 Towns. PI. — Townshend's Pleadings. 
 
 Towns. N. Pr. — Townshend's New Practice. 
 
 Tr. Eq. — Treatise of Equity ; the same as Fonblanque on 
 
 Equity. 
 Traill, Med. Jur. — Outlines of a course of Lectures on Medical 
 
 Jurisprudence. By Thomas Stewart Traill, M. D. 
 Treb. Jur. de la Med. — Jurisprudence de la Medecine, de la 
 
 Chirurgie, et de la Pharmacie. Par Adolphe Trebuchets. 
 Trem. — Tremaine's Pleas of the Crown. 
 Tr. of Webs.— Trial of Doctor Webster. 
 Tri. of 7 Bish.— Trial of the Seven Bishops. 
 Tri. per Pays. — Trial per Pays. 
 Trin.— Trinity Term. 
 Tuck. Bl. Com. — Blackstone's Commentaries, edited by Judge 
 
 Tucker. 
 Turn. R. — Turner's Reports of Cases determined in Chancery. 
 Turn. & Russ. — Turner and Russell's Chancery Reports. 
 Tuck. Com. — Tucker's Commentaries. 
 Turn. & Phil. — Turner and Phillip's Reports. 
 Tyl. R.— Tyler's Reports. 
 Tyrw. — Tyrwhitt's Exchequer Reports. 
 Tyrw. & Gra. — Tyrwhitt and Granger's Reports. 
 Tyt. Mil. Law. — Tytler's Essay on Military Law, and the 
 
 Practice of Military Courts Martial. 
 
 U. S. — United States of America. 
 
 U. S. Dig.— United States Digest. See Mete. & Perk. Dig. 
 
 Ult. — Ultimo, ultima, the last, usually applied to the last title, 
 
 paragraph or law. 
 Umfrev. Off. of Cor. — Umfreville's Office of Coroner. 
 Under Sher. — Under Sheriff, containing the Office and Duty of 
 
 High Sheriff, Under Sheriffs, and Bailiffs. 
 Ux. et. — Et uxor, et uxorem, and wife. 
 
 V. — Versus, against ; as A B v. C D. 
 
 V. — Versiculo, in such a verse. 
 
 V. — Vide, see. 
 
 V. or V. — Voce ; as Spelm. Gloss, v. Cancellorius, 
 
 V. & B. — Vesey and Beames' Reports. 
 
 V. C— Vice Chancellor. 
 
 Voc. — Voce. 
 
 V. & S. — Vernon and Scriven's Reports. 
 
 Val. Com. — Valin's Commentaries. 
 
 Van Heyth. Mar. Ev. — Van Heythuysen's Essay upon Marine 
 
 Evidence, in Courts of Law and Equity. 
 Vand. Jud. Pr. — ^Vanderlinden's Judicial Practice. 
 Vatt. or Vattel. — ^Vattell's Law of Nations. 
 
Ix ABBREVIATIONS. 
 
 Vaugh. — Vaughan's Reports. 
 
 Vend. Ex. — Venditioni Exponas. 
 
 Ventr. — Ventris' Reports. 
 
 Verm. R. — Vermont Judges' Reports. 
 
 Vern. — Vernon's Reports. 
 
 Vern. & Scriv. — Vernon and Scriven's Reports of Cases in the 
 
 King's Courts, Dublin. 
 Verpl. Contr. — Verplanck on Contracts. 
 Verpl. Ev. — ^Verplanck on Evidence. 
 Ves. — Vesey Senior's Reports, 
 Ves. Jr. — Vesey Junior's Reports. 
 Ves. & Bea. — Vesey and Beames' Reports. 
 Vet. N. B. — Old Natura Brevium. 
 Vid. — Vidian's Entries. 
 Vin. Ab. — Viner's Abridgment. 
 Vin. Supp. — Supplement to Viner's Abridgment. 
 Vinn. — Vinnius. 
 Viz. — Videlicet, that is to say. 
 Vs. — Versus. 
 
 W. 1, W. 2.— Statutes of Westminster, 1 and 2. 
 
 W. C. C. R. — Washington's Circuit Court Reports. 
 
 W. & C. — Wilson and Courtenay's Reports. 
 
 W. Jo. — Sir William Jones' Reports. 
 
 W. Kel. — William Kelynge's Reports. 
 
 W. & M.— William and Mary. 
 
 W. & M. Rep. — Woodbury and Minot's Reports. 
 
 W. & S. — Wilson and Shaw's Reports of Cases decided in the 
 
 H. ofL. 
 W. & T. Eq. Cas.— White and Tudor's Equity Cases. 
 Wagr. on Disc. — Wagram on Discoveries. 
 Waif, on Part. — Walford's Treatise on the Law respecting 
 
 Parties to Actions. 
 Walk, on Ch. Ca. — Walker's Chancery Cases. 
 Walk. Am. L. or Walk. Introd. — Walker's Introduction to 
 
 American Law. 
 Walk. R.— Walker's Reports. 
 Wall. R. — Wallace's Circuit Court Reports. 
 Ward on Leg. — Ward on Legacies. 
 Ware's R. — Reports of Cases argued and determined in the 
 
 District Court of the United States, for the District of 
 
 Maine. 
 Warr. L. S. — Warren's Law Studies. 
 Wash. C. C. — Washington's Circuit Court Reports. 
 Washb. R. — ^Washburn's Vermont Reports. 
 Wat. Cop.— Watkin's Copyhold. 
 Watk. Conv. — Watkin's Principles of Conveyancing. 
 
ABBREVIATIONS. Ixi 
 
 Wats. Cler. Law. — Watson's Clergyman's Law. 
 
 Wats, on Arb. — -Watson on the Law of Arbitrations and Awards. 
 
 Wats, on Partn. — Watson on the Law of Partnership. 
 
 Wats, on Sher. — Watson on the Law relating to the Office and 
 Duty of Sheriff. 
 
 Watts' R.— Watts' Reports. 
 
 Watts & Serg. — Watts and Sergeant's Reports. 
 
 Welf. on Eq. Plead. — Welford on Equity Pleading. 
 
 Wellw. Ab. — ^Wellwood's Abridgment of Sea Laws. 
 
 Wend. R. — Wendell's Reports. 
 
 Wentw.— Wentworth. Went. Off. Ex.— Wentworth's Office 
 of Executor. Wentw. PI. — ^Wentworth's System of Plead- 
 ing, in 10 vols. 
 
 Wesk. Ins. — Weskett on the Law of Insurance. 
 
 West's Pari. Rep. — West's Parliamentary Reports. 
 
 West's Rep. — West's Reports of Lord Chancellor Hardwicke. 
 
 West's Symb. — ^West's Symboliography, or a Description of 
 Instruments and Precedents, 2 parts. 
 
 Westm. — Westminster ; Westm. L — Westminster Primer. 
 
 Weyt. on Av. — Quinton Van Weytsen on Average. 
 
 Whart. Cr. Law. — ^Wharton on the Criminal Law of the United 
 States. 
 
 Whart. Dig. — Wharton's Digest. 
 
 Whart. Law Lex. — ^Wharton's Law Lexicon, or Dictionary of 
 Jurisprudence. 
 
 Whart. R. — Wharton's Reports. 
 
 Wheat. — Wheaton. Wheat. R. — Wheaton's Reports. Wheat, 
 on Capt. — Wheaton's Digest of the Law of Maritime Cap- 
 tures and Prizes. W^heat. Hist, of L. of N. — ^Wheaton's 
 History of the Law of Nations in Europe and America. 
 
 Wheel. Ab. — ^Wheeler's Abridgments. 
 
 Wheel. Cr. Cas. — Wheeler's Criminal Cases. 
 
 Wheel, on Slav. — Wheeler on Slavery. 
 
 Whish. L. D. — ^Whishaw's Law Dictionary. 
 
 Whit, on Liens. — Whitaker on the Law of Liens. 
 
 Whit, on Trans. — Whitaker on Stoppage in Transitu. 
 
 White's New Coll. — A new collection of the Laws, Charters, 
 and Local Ordinances of the governments of Great Britain, 
 France, and Spain, etc. 
 
 White's L. C. — ^White's Leading Cases in Equity. 
 
 Whitm. B. L. — Whitmarsh's Bankrupt Law. 
 
 Wicq. — L'Ambassadeur et ses Fonctions, par de Wicquefort. 
 
 Wightw. — Wightwich's Reports in the Exchequer. 
 
 Wile, on Mun. Cor. — Wilcock on Municipal Corporations. 
 
 Wile. R. — Wilcox's Reports. 
 
 Wilk. Leg. Ang. Sax. — Wilkin's Leges Anglo-Saxonicae. 
 
 Wilk. on Lim. — Wilkinson on Limitations. 
 
Ixii ABBREVIATIONS. 
 
 Wilk. on Pub. Funds. — Wilkinson on the Law relating to the 
 
 Public Funds, including the Practice of Distringas, etc. 
 Wilk. on Repl. — Wilkinson on the Law of Replevin. 
 Will. Auct. — ^Williams on the Law of Auctions. 
 Will, on Eq. PL— Willis' Treatise on Equity Pleadings. 
 Will, on Inter. — ^Willis on Interrogatories. 
 
 Will. L. D. — Williams' Law Dictionary. ^ 
 
 Will. Per. Pr. — Williams' Principles of the Law of Personal 
 
 Property. 
 Will. (P.) Rep.— Peere Williams' Reports. 
 Willc. Off. of Const.— Willcock on the Office of Constable. 
 Willes' R.— Willes' Reports. 
 
 Wills on Cir. Ev. — ^Wills on Circumstantial Evidence. 
 Wils. on Uses. — ^Wilson on Springing Uses. 
 Wildm. Int. L. — Wildman's International Law. 
 Wilm. on Mortg. — Wilmot on Mortgages. 
 Wilm. Judg. — Wilmot's Notes of Opinions and Judgments. 
 Wils. on Arb. — Wilson on Arbitrations. 
 Wils. Ch. R. — Wilson's Chancery Reports. 
 Wils. & Co. — Wilson and Courtenay's Reports. 
 Wils. Ex. R. — Wilson's Exchequer Reports. 
 Wils. & Sh. — ^Wilson and Shaw's Reports decided by the House 
 
 of Lords. 
 Wils. R. — Wilson's Reports. 
 
 Win. — Winch's Entries. Win. R. — ^Winch's Reports. 
 Wing. Max. — Wingate's Maxims. 
 Wms. Just. — ^Williams' Justice. 
 
 Wms. R., more usually, P. Wms. — Peere Williams' Reports. 
 Wolff. Inst. — Wolffius Institutiones Juris Naturae et Gentium. 
 Wood's Inst., or Wood's Inst. Com. L. — Wood's Institutes of 
 
 the Common Law of England. Wood's Inst . Civ. Law. — 
 
 Wood's Institutes of the Civil Law. 
 Wood. & Min. Rep. — Woodbury and Minot's Reports. 
 Woodes. — Wooddesson. Woodes. El. Jur. — ^Wooddesson's 
 
 Elements of Jurisprudence. Woodes. Lect. — Wooddesson's 
 
 Vinerian Lectures. 
 Woodf. L. & T. — ^Woodfall on the Law of Landlord and 
 
 Tenant. 
 Woodm. R. — Woodman's Reports of Criminal Cases tried in 
 
 the Municipal Court of the city of Boston. 
 .Wool. L. W. — Woolrych's Law of Waters. 
 Woolr. on Com. Law. — Woolrych's Treatise on the Commer- 
 cial and Mercantile Law of England. 
 Wool, on Ways. — Woolrych on Ways. 
 Worth, on Jur. — Worthington's Inquiry into the Power of 
 
 Juries to decide incidentally on questions of law. 
 
ABBREVIATIONS. Ixiii 
 
 Worth. Pre. Wills. — ^Worthington's General Precedents for 
 
 Wills, with Practical Notes. 
 Wright's. R.— Wright's Reports. 
 Wright, Fr. Soc. — Wright on Friendly Societies. 
 Wright, Ten. — Sir Martin Wright's Law of Tenures. 
 Wy. Pr. Reg. — Wyatt's Practical Register. 
 
 X. — The Decretals of Gregory the Ninth are denoted by the 
 letter X, thus, X. 
 
 Y. B.— Year Books. 
 
 Y. & C. — Younge and Collyer's Exchequer Reports. 
 
 Y. & C. N. C. — Younge and Collyer's New Cases. 
 
 Y. & J. — Younge and Jervis' Exchequer Reports. 
 
 Yeates, R. — Yeates' Reports. 
 
 Yearb. — Year Book. 
 
 Yelv. — Yelverton's Reports. 
 
 Yerg. R. — Yerger's Reports. 
 
 Yo. & Col. — Younge and Collyer's Exchequer Reports. 
 
 Yo. & Col. N. C. — Younge and Collyer's New Cases. 
 
 Yo. Rep. — Younge's Reports. 
 
 Yo. & Jer. — Younge and Jervis' Reports. 
 
 Zouch's Adm. — Zouch's Jurisdiction of the Admiralty of Eng- 
 land, asserted. 
 
TABLE OF CONTENTS 
 
 PRELIMINARY BOOK. 
 
 p. 1. Of laws in general, 1. 
 T. 1. Of justice, 2. 
 T. 2. Of laws, 3. 
 C. 1. Of the law of nature, 4. 
 C. 2. Of the law of nations, 4. 
 C. 3. Of municipal law, 6. 
 P. 2. Of sovereignty and the different forms of government, 8. 
 T. 1. What is sovereignty, 8. 
 T. 2. By whom is sovereignty exercised, 9. 
 T. 3. How the powers of sovereignty are divided, 9. 
 T. 3. What is a constitution, 9. 
 T. 5. Of the different forms of government, 10. 
 P. 3. Of the government of the United States, 13. 
 T. 1. Of the history of its formation, 13. 
 
 T. 2. By whom the sovereignty is exercised in the United States, 16. 
 C. 1. Of persons born in the country, 16. . 
 
 C. 2. Of inhabitants of the United States born out of their jurisdiction, 17. 
 T. 3. In whom the government is vested by the constitution, 18. 
 C. 1. Of the legislative power, 18. 
 S. 1. Of the senate, 21. 
 § 1. Number of senators, 22. 
 § 2. By whom elected, 22. 
 § 3. Qualifications of senators, 22. 
 § 4. Time of election of senators, 22. 
 § 5. Duration of office of senators, 22. 
 § 6. Power of senators, 23. 
 
 A. 1 Legislative power of the senate, 23. 
 A. 2. Executive authority of the senate, 23. 
 A. 3. Judicial functions of the senate, 24. 
 S. 2. Of the house of representatives, 24. 
 § 1. Number of members, 24. 
 § 2. By whom they are elected, 25. 
 § 3. Qualification of members, 25. 
 ^ 4. Term of their election, 25. 
 § 5. Duration of their office, 25. 
 § 6. Power of representatives, 26. 
 C. 2. Of the executive power, 26. 
 
 S. 1. By whom the president is elected, 26. 
 
 S. 2. Qualifications of the president, 27. 
 
 S. 3. Term of his office, 28. 
 
 S. 4. Time of his election, 28. 
 
 S. 5. Powers and duties of the president, 28. 
 
 Vol. I. e 
 
Ixvi TABLE OF CONTENTS. 
 
 § 1. When the president exercises power alone, 29. 
 § 2. Of the power of the president in connection with congress, 30. 
 I 3. Of the power he exercises in concurrence with the senate, 30. 
 A. 1. Of the treaty-making power, 30. 
 A. 2. Of the appointing power, 30. 
 S. 6. Of the vice-president, 31. 
 C. 3. Of the judicial power, 31. 
 p. 4. Of the state governments, 32. 
 P. 5. Of the passage, publication, and effect of laws, 33. 
 T. 1. Of the passage of laws, 33. 
 
 T. 2. Of the publication and promulgation of the laws, 34. 
 T. 3. Of the effect and sanction of the laws, 35. 
 T. 4. What advantages of the law a man may renounce, 37. 
 T. 5. Of the persons bound by the law, 38. 
 
 T. 6. Of the judiciary power by whom the law is to be applied, 38. 
 T. 7. Of the power to interpret the laws, 39. 
 C. 1. General rules of interpretation, 39. 
 C. 2. Of the kinds of interpretation, 40. 
 S. 1. Literal or strict construction, 40. 
 S. 2. Liberal construction, 41. 
 T. 8. Of the repeal of laws, 43. 
 C. i. What kinds of repeals, 43. 
 C. 2. Effect of a repeal, 44 
 T. 9. Of the several kinds of laws, 45. 
 C. 1. Express laws, 45. 
 
 S. 1. Of the constitution, 46. 
 S. 2. Of treaties, 46. 
 S. 3. Of statutes, 46, 
 
 S. 4. Constitutional and unconstitutional laws, 47. 
 S. 5. Public and private statutes, 47. 
 S. 6. Declaratory and remedial, 47. 
 
 S. 7. Preceptive, prohibitive, permissive and penal laws, 48. 
 S. 8. Temporary and perpetual laws, 48. 
 S. 9. Affirmative and negative laws, 49. 
 S. 10. Prospective and retrospective laws, 49. 
 S. 11. Of the constitutions and laws of the several states, 50. 
 S. 12. Of laws made by inferior legislative bodies, 50. 
 C. 2. Of tacit laws, 50. 
 
 S. 1. The common law, 50. 
 S. 2. The Roman law, 52. 
 S. 3. The canon law, 52. 
 C. 3. Of the objects of the law, 52. 
 S. 1. Civil and criminal, 52. 
 S. 2. Law merchant, 53. 
 S. 3. Municipal, 53. 
 S. 4. Law martial, 53. 
 C. 4. Of immutable and arbitrary laws, 53. 
 S. 1. Of immutable laws, 53. 
 S. 2. Of arbitrary laws, 53. 
 C. 5. Of national and foreign laws, 54. 
 S. 1. Of national or domestic laws, 54. 
 S. 2. Of foreign laws, 54. 
 C. 6. Over what places and countries the laws extend, 54. 
 S. 1. Over all the states, 54. 
 
 S. 2. Over the territories of the United States, 55. 
 S. 3. Over ships, 55. 
 
TABLE OF CONTENTS. Ixvii 
 
 BOOK I.— OF PERSONS. 
 
 P. 1. Of natural and artificial persons, 57. 
 T. 1. Of natural persons, 57. 
 C. 1. Who is a person, 57. 
 C. 2. Of the state and condition of a person, 58. 
 C. 3. Of the loss of one's state or condition, 60. 
 C. 4. Of the classification of persons, 61 . 
 S. 1. Of public persons, 61. 
 S. 2. Of private persons, 61. 
 
 § 1. With regard to the sexes, 61. 
 § 2. With regard to the ages, 6-3. 
 A. 1. As to males, 63. 
 A. 2. As to females. 63. 
 § 3. Of husband and wife, and parent and child, 63. 
 § 4. Of citizens and aliens, 64. 
 A. 1. Of citizens, 64. 
 A. 2. Of aliens, 66. 
 § 5. Of freemen and slaves, 67. 
 A. 1. Of freemen, 67. 
 A. 2. Of slaves, 67. 
 § 6. Of white and colored persons, 70. 
 § 7. Of nobles and plebeians, 7 1 . 
 § 8. Of the sane and insane, 71. 
 § 9. Of infamous persons, 72. 
 § 10. Of persons born and not born, 72. 
 T. 2. Of artificial persons or corporations, 73. 
 C. 1. What is a corporation, 73. 
 C. 2. Of the creation of a corporation, 74. 
 C. 3. Of the various kinds of corporations, 75. 
 S. 1. Of political corporations, 75. 
 S. 2. Of public corporations, not political, 76. 
 S. 3. Of private corporations, 76. 
 S. 4. Of quasi corporations, 77. 
 C. 4. Of the powers and incapacities of corporations, 77. 
 S. 1. Rights, powers and privileges of corporations, 78. 
 § 1. What are such powers, 78. 
 § 2. By whom are such powers to be exercised, 81. 
 S. 2. Of the incapacities of corporations, 81. 
 C. 5. Of the dissolution of corporations, 82. 
 C. 6. Of foreign corporations, 83. 
 P. 2. Of the enjoyment and loss of civil rights, 84. 
 T. 1. Constitutional rights, 84. 
 C. 1. Of political ri^ts, 84, 
 C. 2. Of civil rights, 85. 
 S. 1. Of absolute rights, 85. 
 § 1. Of personal security, 86. 
 § 2. Of personal liberty, 89. 
 A. 1. Of liberty of our persons and actions, 89. 
 A. 2. Of liberty of thought, 92. 
 A. 3. Of liberty of conscience, 93. 
 4 3. Of the right to enjoy property, 93. 
 S. 2. Of relative rights, 94. 
 § 1 . Of public relative rights, 94. 
 § 2. Of private relative rights, 94. 
 T. 2. Of loss of civil rights, 94. 
 C. 1. By expatriation, 94. 
 C. 2. By judicial condemnation, 95. 
 T. 3. Of the evidence of the civil state, 95. 
 T. 4. Of the domicil, 96. 
 
Ixviii TABLE OF CONTENTS. 
 
 C. 1. Domicil of origin, 97. 
 
 C. 2. Domicil acquired by operation of law, 98. 
 
 S. 1. Domicil of persons under the control of another, 98. 
 S. 2. Of those on whom the state affixes a domicil, 98. 
 C. 3. Of the domicil of choice, 99. 
 T. 5. Of absentees, 100. 
 T. 6. Of marriage, 101. 
 
 C. 1. Of the qualities required to contract marriage, 102. 
 S. 1. 'Competent age, 102. 
 S. 2. Consent of parties, 103. 
 § 1. Use of reason, 103. 
 § 2. Freedom from constraint or duress, 103. 
 § 3. Of error or fraud as to the person, 104. 
 § 4. Want of consent on account of impotency, 105. 
 S. 3. Of a former marriage subsisting, 105. 
 S. 4. Of the bar of consanguinity or affinity, 106. 
 S 5. Of want of consent of parents, 108. 
 S. 6. Of civil death as a bar to marriage, 108. 
 S. 7. Of adultery as a bar to marriage, 108. 
 C. 2. Of the form of marriage, and how contracted, 109. 
 
 S. 1. Of the person before whom the marriage must take place, 109. 
 S. 2. Of the foim of the marriage, 110. 
 C. 3. Of the place where the contract of marriage is made, 110. 
 C. 4. Of the proof of marriage. 111. 
 C. 5. Of void and voidable marriages, 113. 
 S. 1. Of void marriages, 113. 
 S. 2. Of voidable marriages, 114. 
 C. 6. Of the rights and obligations arising from marriage, 114. 
 S. 1. Of the rights and obligations of the husband, 114. 
 § 1. Of the obligations of the husband, 115. 
 § 2. Of the rights of the husband, 116. 
 S. 2. Of the rights and obligations of the wife, 116. 
 § 1. Of the oblioations of the wife, 116. 
 § 2. Of the rights of the wife, 117. 
 S. 3. Of the duties of the parents toward their children, 117. 
 § 1. Of legitimite children, 117. 
 § 2. Of illegitimate children, 119. 
 
 A. 1. Of legal duties of parents toward their illegitimate children, 
 
 119. 
 A, 2. Of the rights and incapacities of illegitimate children, 119. 
 C. 7. Of the dissolution of marriage, 120. 
 S. 1. Of dissolution by death, 120. 
 S. 2. Of dissolution by divorce, 120. 
 § 1. Of divorces a vinculo, 121. 
 
 A. 1. For what causes divorces a vinculo are granted, 121. 
 A« 2. Effects of a divorce a vinculo, 123. 
 § 2. Divorce a mensa et thoro, 124. 
 A. 1. For what causes granted, 124. 
 A. 2. Effect of divorce a mensa et thoro, 124. 
 T. 7. Of paternity and filiation, 125. 
 
 C. 1. Of legitimate children conceived and born in wedlock, 125. 
 S. 1. Exception to the rule that the child born in lawful wedlock is the 
 
 child of the mother's husband, 127. 
 S. 2. Children born in wedlock, but conceived before marriage, 128. 
 S. 2. Of children born after the dissolution of the marriaffe 129 
 C. 2. Of proof of filiation, 129. ^' 
 
 S. 1. By evidence of possession, 129. 
 S. 2. By proof of filiation by testimony of witnesses, 130. 
 S. 3. By private writing, 130. 
 S. 4. By public registers, 131. 
 S. 5. Of proof against filiation, 131. 
 
TABLE OF CONTENTS. Ixix 
 
 C. 3. Of natural children, 131. 
 
 S. 1. Who are natural children, 131. 
 S. 2. Of legitimation of natural children, 133. 
 T. 8. Of paternal power, 134. 
 
 C. 1. Of the general duties of children toward their parents, 135. 
 C. 2. Of the rights of parents to control their children, 135. 
 C. 3. Of the rights of the father to the labor of his child, 1.S6. 
 C. 4. Of the power of the father and mother over natural children, 137. 
 T. 9. Of minority, or infancy, or guardianship, 137. 
 C. 1. Of minority and infancy, 137. 
 C. 2. Of guardianship, tutorship, or curatorship, 139. 
 S. 1. Of several kinds of guardians, 139. 
 S. 2. Who may be a guardian, 141. 
 S. 3. Of the duty of a guardian, 142. 
 
 5 1. Of the duty of guardian toward the person of a ward, 142. 
 § 2. Of the administration of the estate of the ward, 143. 
 A. 1. When the guardian acts alone, 143. 
 
 A. 2. When the guardian must have the sanction of the court, 145. 
 A. 3. Of the guardian's account, 145. 
 S. 4. Of the end of the guardian's power and his discharge, 146. 
 § 1. Of his discharge by lapse of time, 146. 
 § 2. Of removal of guardian, 147. 
 § 3. Effect of death on the guardianship, 147. 
 § 4. When guardianship is discharged by operation of law, 148. 
 T. 10. Of majority, and of sanity and insanity, 148. 
 
 C. 1. For what causes commission of lunacy may issue, 149. 
 C. 2. Proceedings in lunacy, 153. 
 
 S. 1. Upon whose application a commission of lunacy may be issued, 153. 
 S. 2. Duty of commissioner, 153. 
 
 § 1. Place where commission to be executed, 154. 
 § 2. Manner of executing commission of lunacy, 154. 
 § 3. Inquisition and traverse, 155. 
 S. 3. Appointment of committee, 156. 
 § 1. Of the committee of the person, 156. 
 § 2. Of the committee of the estate, 157. 
 C. 3. Consequences of finding a man rum compos meniis, 157. 
 C. 4. Of the restoration of the lunatic, 158. 
 T. 11, Of master and apprentice, 158. 
 
 C. 1. Of parties to the contract of apprenticeship, 159. 
 S. 1. Ofthe master, 159. 
 
 S. 2. Ofthe apprentice, his parent, guardian, or next friend, 159. 
 C. 2. Ofthe services to be rendered, 160. 
 C. 3. Ofthe form ofthe contract of apprenticeship, 161. 
 C. 4. Ofthe duration ofthe apprenticeship, 161. 
 C. 5. Ofthe assignment ofthe indenture, 162. 
 C. 6. Ofthe duties ofthe master, 163. 
 
 S. 1. Ofthe obligation to teach the apprentice, 163. 
 S. 2. Ofthe obligation to perform his covenants, 164. 
 S. 3. Of his duties to protect his apprentice, 164. 
 C. 7. Ofthe rights ofthe master, 165. 
 C. 8. Ofthe duties and rights ofthe apprentice, 165. 
 C. 9. Of the remedies between master and apprentice, 166. , 
 
 C. 10. Ofthe dissolution ofthe contract, 166. 
 
Ixx TABLE OF CONTENTS. 
 
 BOOK II.— OF THINGS. 
 
 p. 1. Of the general nature of things, 168. 
 
 C. 1. Of things corporeal or incorporeal, 169. 
 S. 1. Things corporeal, 169. 
 S. 2. Things incorporeal, 169. 
 C. 2. Things which are the objects of property, 169. 
 S. 1. Things in which property may be had, 169. 
 S. 2. Things which cannot be the object of property, 170. 
 § 1. Things common, 170. 
 I 2. Things public, 170. 
 
 i 3. Of things which belong to municipal corporations, 176. 
 C. 3. Of the different kind ot things 'established as property, 176. 
 C. 4. Origin and nature of personal property, 177. 
 S. 1. Of the origin and right of property, 178. 
 S. 2. Of possession as separated from property, 179. 
 S. 3. Definition of property and its analysis, 181. 
 § 1. Definition of property, 181. 
 § 2. Analysis of property, 181. 
 C. 4. Division of property into perfect and imperfect, 1S3. 
 P. 2. Of personal property, 184. 
 T. 1. Of chattels real, 184. 
 T. 2. Of chattels personal, 185. 
 
 C. 1. Of chattels personal in possession, 185. 
 S. 1. Of tangible personal property, 185. 
 § 1. Of absolute property in possession, 186. 
 § 2. Of qualified property, 189. 
 S. 2. Of property not tangible, 190. 
 C. 2. Of choses in action, 191. 
 
 C. 3. Of the time of enjoyment of personal chattels, 192. 
 C. 4. Of the number of owners of the same personal chattel, 192. 
 T. 3. Of the different modes of acquiring personal chattels, 193. 
 C. 1. Of title by original acquisition, 194. 
 S. 1. Of title by occupancy, 194. 
 § 1. Of simple occupancy, 194. 
 § 2. Of the right of accession, 197. 
 A. 1. Of natural accession, 197. 
 
 1. Emblements, 197. 
 
 2. Young of animals, 198. 
 
 A. 2. Of artificial accession, 198. 
 
 1. Of adjunction, 191, 198. 
 
 2. Of specification, 199. 
 
 3. Of confusion, 200 
 
 S. 2. Of acquisition by intellectual labor, 201. 
 § 1. Of literary property, 20 1 . 
 
 A. 1. Of property in unpublished works, 201. 
 
 1. Private letters, 201. 
 
 2. Publication by acting or reciting, 202. 
 
 3. Of gift or sale of manuscript, 202. 
 
 4. Of printed books in printers' hands, 202. 
 A. 2. Of copy rights, 203. 
 
 1. Legislation as to copy rights, 203. 
 
 2. Who entitled to copy rights, 204. 
 
 3. For what a copy right may be granted, 204. 
 
 4. Of the nature of the copy right, 204. 
 
 5. Of duration of the copy right, 204. 
 
 6. Proceedings to obtain a copy right, 206. 
 
 7. Requisites after the grant, 206. 
 § 2. Of patents for inventions, 206. 
 
 A. 1. Legislation as to patents, 206. 
 
TABLE OF CONTENTS. Ixxi 
 
 A. 2. Of the patentee, 207. 
 
 A. 3. For what invention a patent will be granted, 208. 
 
 A. 4. Of proceedings to obtain a patent, 210. 
 
 1. Of the caveat, 210. 
 
 2. Proceedings vi'ithout opposition, 210. 
 1° Duty on patent, 211. 
 
 2° Petition for a patent, 212. 
 
 3° Specification, 212. 
 
 i° Drawings, specimens, and models, 212. 
 
 5° Of the oath, 212. 
 
 6° Examination by the commissioner, 213. 
 
 3. Of conflicting claims, 213. 
 A. 5. Of the patent, 214. 
 
 1. Of the form of the patent, 214. 
 
 2. Of the correction of patents, 214. 
 
 3. Of disclaimer, 215. 
 
 4. Of the assignment of patents, 215. 
 
 5. Of the extension of the patent right, 215, 
 
 A. 6. Of the requisites to secure a patent right, 215. 
 C. 2. Of the title to things acquired by war, 216. 
 S. 1. Of booty, 216. 
 S. 2. Of contributions, 217. 
 S. 3. Of prizes, 218. 
 
 § 1. Who may make a prize, 218. 
 
 § 2. What may be captured as a prize, 218. 
 
 § 3. In what places a capture may be made, 218. 
 
 § 4. What is a sufficient capture, 219. 
 
 § 5. Of the right of postiliminy or recapture, 219. 
 
 § 6. Of the right of ransom, 220. 
 
 § 7. Of adjudication of prize or no prize, 220. 
 
 A. 1. What courts have jurisdiction of prize cases, 221. 
 A. 2. Over what subject prize courts have jurisdiction, 221. 
 A. 3. Efliect of a decree of a prize court, 221. 
 T. 4. Of the manner of acquiring property by contract, 222. 
 C. 1. General rules, 222. 
 
 C. 2. Of the essential conditions of a contract, 223. 
 S. 1. Of the consent of parties, 224. 
 
 § 1. How consent is to be manifested, 224. 
 ^ 2. Of the want of consent in consequence of a mistake, 226. 
 § 3. Duress destroys the consent given, 226. 
 § 4. When fraud vitiates consent, 227. 
 S. 2. Of the capacity of contracting parties, 228. 
 5 1. Of persons who want understanding, 229. 
 I 2. Of persons who want freedom of will, 231. 
 \ 3. Of persons unable to contract on account of policy, 232. 
 S. 3. Of the things which may be the object of a contract, 232. 
 § 1. Impossible things cannot be the object of a contract, 233. 
 § 2. Things indeterminate cannot be the object of a contract, 234. 
 § 3. Useless things cannot be the object of a contract, 235. 
 § 4. Things out of commerce, 235. 
 § 5. Unlawful things, 235. 
 § 6. Choses in action, 237. 
 S. 4. Of the consideration of the contract, 237. 
 § 1. Of good considerations, 238. 
 § 2. Of valuable considerations, 239. 
 
 A. 1. Considerations arising from benefit or injury, 239. 
 A . 2. Of forbearance, 239. 
 A. 3. Mutual promises, 240. 
 
 A. 4. When assignment of a chose in action is a sufficient con- 
 sideration, 240. 
 A. 5. When consideration moves from a third person, 240. 
 
Iixii TABLE OF CONTENTS. 
 
 § 3. Of legal considerations, 241. 
 I i. Of illegal considerations, 241. ^ 
 
 § 5. Of a consideration arising from a moral obligation, 241. 
 \ 6. Of an immoral consideration, 242. 
 ^ 7. Of an executed consideration, 242. 
 § 8. Of an executory consideration, 242. 
 § 9. Of concurrent considerations, 243. 
 i 10. Of continuing considerations, 243. 
 § II. Of divisible and indivisible considerations, 243, 
 § 12. Of the failure of consideration, 244. 
 C. 3. Of the effect of contracts, 244. 
 
 S. 1. General rules as to the effects of contracts, 245. 
 
 S. 2. Of the obligation to deliver the thing contracted for, 247. 
 
 S. 3. Of the obligation to do or not to do, 248. 
 
 S. 4. Of the damages for breach of contract, 249. 
 
 § 1 . Of the causes or faults for which damages may be recovered, 249. 
 A. 1. Cases of fraud and want of good faith, 249. 
 A. 2. Foreign causes of damages beyond the party's control, 250. 
 § 2. Of damages arising from the fault of the contractor, 251. 
 § 3. Of the extent of damages and how they are ascertained, 252. 
 A. 1. Of damages fixed by law, 252. 
 A. 2. Of damages ascertained by acts of the parties, 253. 
 A. 3. How damages ascertained by a jury, 253. 
 S. 5. Of the construction of agreements, 254. 
 
 § 1. Construction of obscure or ambiguous agreements, 255. 
 § 2. Construction to determine the natural consequence of agree- 
 ments, 258. 
 A. 1. How far equity is to be considered in the construction of 
 
 contracts, 259. 
 A. 2. Of usage in the construction of agreements, 259. 
 A. 3. Of the effect of the law in construction, 260. 
 S. 6. Of the effect of agreements with regard to third persons, 261. 
 C. 4. Of the different kinds of agreements, 263. 
 S. 1. Of 3oint and several agreements, 265. 
 
 § 1. When the promise is made to several persons, 265. 
 § 2. When the promise is made by several persons, 266. 
 S. 2. Of conjunctive and disjunctive agreements, 267. 
 § 1. Of conjunctive agreements, 267. 
 § 2. Of disjunctive agreements, 26S. 
 S. 3. Of divisible and indivisible agreements, 269. 
 S. 4. Of dependent and independent agreements, 272. 
 S. 5. Of principal and accessory agreements, 273. 
 S. 6. Of certain and hazardous contracts, 274. 
 § 1. Of certain contracts, 274. 
 § 2. Of hazardous contracts, 275. 
 S. 7. Of onerous and gratuitous contracts, 275. 
 § 1. Of onerous contracts, 275. 
 §2. Of gratuitous contracts, 275. 
 A. 1 Of gifts, 275. 
 
 1. Gifts inter vivos, 276. 
 
 2. Donatio mortis causa, 277. 
 A. 2. Of suretyship, 278. 
 
 S. 8. Of limited and unlimited contracts as to the time of their per- 
 formance, 279. 
 § 1. Of certain and uncertain terms, 279. 
 ^ 2. Of express and implied terms, 280. 
 
 § 3. When the term is of right, and when it will be postponed by 
 
 law, 280. ' 
 
 § 4. When the performance may be before the time has expired, 282. 
 
 § 5. How time is computed in ascertaining when the thing is due, 283. 
 
 S. 9. Of conditional and unconditional contracts, 284. 
 
TABLE OF CONTENTS, Ixxiii 
 
 § 1. Of the kinds of conditions, 285. 
 
 A. 1. Of express and implied conditions, 285. 
 
 A. 2. Of lawful and unlawful conditions, 286. 
 
 A. 3. Of precedent and subsequent conditions, 287. 
 
 A. 4. Of possible and impossible conditions, 288. 
 
 A. 5. Of copulative and disjunctive conditions, 289. 
 
 A. 6. Of positive and negative conditions, 289. 
 
 A. 7. Of consistent and repugnant conditions, 289. 
 
 A. 8. Of resolutory and suspensive conditions, 290. 
 § 2. Of the effect of the conditions, 290. 
 
 A. 1. Effect of condition while it is depending, 291. 
 
 A. 2. Effect of the condition when performed, 291. 
 
 A. 3. Of the breach of the condition, 291. 
 § 3. Of the performance of the condition, 292. 
 S. 10. Of agreements with a penal clause, 292. 
 S. 11. Of illegal and fraudulent agreements, 294. 
 § 1. Of contracts void at common law, 296. 
 
 A. 1. Of immoral contracts, 296. 
 
 A. 2. Contracts in violation of public policy, 297. 
 
 A. 3. Of fraudulent contracts, 301. 
 
 1. Of misrepresentations, 301. 
 
 2. Of concealment, 302. 
 
 S. Of fraud upon third persons, 303. 
 § 2. Of contracts void by statute, 303. 
 C. 5. Of the extinction of obligations, 305. 
 
 S. 1. Of extinguishment of contracts by acts of both parties, 305. 
 § 1. By release, 306. 
 
 A. 1. Form of release, 306. 
 A. 2. Of different kinds of release, 307. 
 A. 3. Effect of a release, 307. 
 A. 4. By whom a release must be made, 308. 
 A. 5. To whom the release is to be made, 308. 
 § 2. By compromise, 308. 
 
 § 3. Of extinguishment of contract by renewal, 310. 
 ^ 4. Of extinguishment by accord and satisfaction, 312. 
 S. 2. Of the extinction of contracts by act of one of the parties, 313. 
 S. 3. Of payment, 313. 
 
 § 1. By whom payment is to be made, 314. 
 § 2. To whom payment is to be made, 314. 
 A. 1. Of payment to the true creditor, 314. 
 A. 2. Of those who are authorized by the true creditor to receive 
 
 payment, 315. 
 A. 3. Of those who are invested by law to receive payment, 316. 
 A. 4. Of those who are authorized by the agreement to receive 
 
 payment, 316. 
 A. 5. How payment may be validated, 316. 
 § 3. Of the thing to be paid and how payment is to he made, 317. 
 A. 1. Whether one thing may be paid for another, 317. 
 A. 2. Whether a creditor is bound to receive what is due by instal- 
 ments, 318. 
 A. 3. How the thing which is due ought to be paid, 318. 
 A. 4. In what state the thing should be when paid, 318. 
 § 4. When the payment is to be made, 319. 
 
 § 5. Where the payment is to be made and at whose expense, 319. 
 § 6. Effects of a payment, 320. 
 
 A. 1. When a payment may extinguish several obligations, 320. 
 A. 2. Of payment made by one of several debtors, 321. 
 A. 3. Of partial payments, 321. 
 5 7. Of appropriation of payments, 321. 
 § 8. Of payment of money into court, 324. 
 S. 4. Of the extinguishment of an obligation by confusion, 324. 
 
Ixxiv TABLE OF CONTENTS. 
 
 § 1. When this confusion arises, 325. 
 § 2. Effect of the confusion, 325. 
 S. 5. Of extinguishment of the obligation by loss of the thing, 325. 
 S. 6. Of the extinguishment of a contract by a judgment or award, 325. 
 S. 7. Of extinguishment of the contract by the death of either of the 
 
 parties, 326. 
 S. 8. Of the extinguishment of the contract by a set off, 326. 
 § 1. In what cases a set off is allowed, 327. 
 § 2. Between what parties a set off is allowed, 327. 
 S. 9. Of extinguishment of a contract by lapse of time, 328. 
 S. 10. Of the discharge of a contract by neglect to give notice, 328. 
 S. 11. Of the legal bars which may be interposed against the recovery 
 of a debt, 339. 
 § 1. Of the bar arising from the act of limitations, 329. 
 A. 1. In what cases the action will be barred, 331. 
 A. 2. By what law the remedy will be barred, 334. 
 A. 3. When the right of action accrued, 335. 
 A. 4. When the statute may be avoided, 336. 
 
 1. Of the disabilities, 337. 
 
 2. Of the acknowledgment or promise of the defendant, 338. 
 
 3. When fraud will prevent the operation of the statute, 340. 
 § 2. Of the bar arising from lapse of time, 341. 
 
 § 3. Of the effect of an arrest of defendant under a capias ad satis- 
 
 fadendum, 341. 
 § 4. Of the effect of baakruptcy to discharge a debt, 342. 
 C. 6. Of the form of agreements, 342. 
 S. 1. Of contracts of record, 342. 
 S. 2. Of contracts in writing, 343. 
 § 1. Of contracts under seal, 343. 
 A. 1. Of the form of a deed, 343. 
 
 1. Of the contract, 343. 
 
 2. Of the seal, 344. 
 
 3. Of the delivery of the deed, 345. 
 A. 2. Of the effect of a deed, 345. 
 
 A. 3. Of the kinds of deeds, 346. 
 
 1. Of bonds, 346. 
 
 2. Of a single bill, 347. 
 
 3. Of a mortgage, 347. 
 
 1st. Of legal mortgage of lands, 347. 
 
 2d. Equitable mortgage of lands, 349. 
 
 3d. Of mortgage of chattels, 349. 
 
 4th. For what a mortgage may be given, 350. 
 
 5th. Difference between a mortgage and a conditional sale,350. 
 
 4. Of a warrant of attorney, 351. 
 
 5. Of covenants, 351. 
 
 6. Of letter of attorney, 352. 
 
 § 2. Of contracts in writing not under seal, 352. 
 A. 1. Of bills of exchange, 353. 
 A. 2. Of promissory notes, 3-53. 
 A. 3. Of bills of lading, 353. 
 
 1. Form of the bill of lading, 353. 
 
 2. Of the assignment of the bill of lading, 354. 
 A. 4. Of bills of adventure, 354. 
 
 A. 5. Of charter party, 355. 
 A. 6. Of articles of agreement, 355. 
 A. 7. Of letters or correspondence, 356. 
 S. 3. Of contracts not in writing, 357. 
 C, 7. Of the memorandum in writing required by the fourth section of the 
 statute of frauds, 361. 
 S. 1. Of promises by executors and administrators, 362. 
 
TABLE OF CONTENTS. Ixxv 
 
 S. 2. Of promises made for the debt, default or miscarriage of an- 
 other, 362. 
 § 1. Of the nature of the debt for which a guarantor is liable, 363. 
 § 2. Of the nature of the miscarriage for which the guarantor is 
 liable, 364. 
 S. 3. Of agreements in consideration of marriage, 364- 
 S. 4. Of contracts for the purchase or sale of land or realty, 364. 
 S. 5. Of promises not to be performed within one year, 365. 
 S. 6. Of the memorandum or note, 366. 
 § 1. Of the form of the note, 366. 
 § 2. Of the signature to the note, 366. 
 T. 5. Of particular contracts, 368. 
 C. 1. Of the contract of sale, 368. 
 S. 1. Of the parties to a sale, 370. 
 S. 2. Of the subject' matter of the contract of sale, 370, 
 S. 3. Of the price, 372. 
 
 § 1. It must be an actual and serious price, 372. 
 § 2. Of the certainty of the price, 372. 
 § 3. The price must be paid in money, 373. 
 S. 4. Of the consent of the contracting parties, 373. 
 § 1. Of the form of giving consent to a sale, 374. 
 § 2. Of the substance of the consent to a sale, 375. 
 A. 1. Consent as to the thing sold, 375. 
 A. 2. Consent as to the price, 375. 
 A. 3. Consent must be on the sale itself, 376. 
 S. 5. When the property passes by the sale, 376. 
 S. 6. Of the duties of the seller, 377. 
 § 1. Of delivery, 377. 
 
 A. 1 . Of the different modes and effects of a delivery, 378. 
 A. 2. Of the time and place of delivery, 379. 
 
 1. Of the time, 379. 
 
 2. Of the place, 380 
 
 A. 3. How things are to be delivered, 380. 
 
 1. At whose expense the delivery must be made, 381. 
 
 2. In what state the thing sold must be delivered, 381. 
 
 3. Of the loss of the thing sold between sale and delivery, 382. 
 A. 4. Of the effect of delivery, 382. 
 
 § 2. Of the warranty of the thing sold, 383. 
 A. 1. Of implied warranty of title, 383. 
 A. 2. Of implied warranty of quality of goods, 3S4. 
 S. 7. Of the rights of the seller, 384. 
 § 1. To be paid the price, 385. 
 § 2. To indemnity, 385. 
 § 3. Rights of stoppage in transitu, 385. 
 A. 1. By whom the goods in transitu may be stopped, 386. 
 A. 2. What goods may be stopped in transitu, 386. 
 A. S. Of the time when goods may be stopped in transitu, 386. 
 A. 4. What is a sufficient stoppage of goods in transitu, 387. 
 A. 5. Of the insolvency of the buyer, 387. 
 A. 6. Effect of stoppage in transitu, 388. 
 S. 8. Of the duties of the buyer, 388. 
 S. 9. Of the rights of the buyer, 388. 
 S. 10. Of the different kinds of sales, 388. 
 § 1. Of absolute and conditional sales, 389. 
 A. 1. Of absolute sales, 389. 
 A. 2. Of conditional sales, 389. 
 
 1. Of sales made on condition of measuring, counting, weighing, 
 etc., 389. 
 
 2. Of sales made on condition of tasting, 390. 
 
 3. Of sales on condition of trial, 390. 
 § 2. Of voluntary and forced sales, 390. 
 
Ixxvi TABLE OF CONTENTS. 
 
 A. 1. Of voluntary sales, 390. 
 A. 2. Of forced sales, 391. 
 § 3. Of public and private sales, 391. 
 A. 1. Of public sales, 391 . 
 A. 2. Of private sales, 393. 
 C. 2. Of bailments, 393. 
 
 Ist Class. Of bailment for the benefit of both parties, 393. 
 S. 1. Of hiring, 394. 
 § 1. Locatio conducHo rei, or hire of a thing, 395. 
 A. 1. The thing to be let, 395. 
 
 1. There must be a thing let, 395. 
 
 2. What things may be hired, 396. 
 
 S. Of the enjoyment of the thing hired, 396. 
 
 4. Of the time for vphich the hiring is to take place, 397. 
 A. 2. Of the price or recompense, 397. 
 A. 3. Of the letter, 398. 
 A. 4. Of the hirer, 398. 
 § 2. Locatio operis, or hire of labor, 400. 
 A. 1. Of the nature and requisite of the contract, 400. 
 
 1. Of its nature, 400. 
 
 2. Of the requisites, 401. 
 
 1° Of the work to be done, 401. 
 2° Of the price, 401. 
 3° Of the consent of the parties, 401. 
 A. 2. Of the obligations of the parties, 402. 
 
 1. O/the obligations of the employer, 402. 
 
 2. Of the obligations of the vporkman, 402. 
 1° Of the performance of the work, 402. 
 2° When the work is to be done, 403. 
 
 3° Of the obligation to perform the work well, 403. 
 4° Of the obligation of the workman to employ properly the 
 materials furnished him, 404. 
 A. 3. Who is to bear the loss of the work and materials when de- 
 stroyed before they are delivered, 405. 
 § 3. Locatio custodies, or hire of custody, 406. 
 A. 1. Responsibility of depositary, 406. 
 A. 2. Duties of depositaries, 408. 
 
 1. Obligations of innkeeper, 408. 
 
 2. Degree of liability of innkeepers, 409. 
 
 3. Rights of innkeepers, 410. 
 
 4. General observation, 410. 
 
 § 4. Locatio mercium vehendarum, or the carriage of goods, 410. 
 A. 1. Of the obligations of a common carrier, 411. 
 A. 2. Of the liabilities of a common carrier, 412. 
 
 1. For what loss, 412. 
 
 2. Of beginning and end of the risk, 415. 
 A. 3. Of the rights of a common carrier, 416. 
 
 § 5. Of the carriage of passengers, 417. 
 A. 1. Of carriers on land, 417. 
 
 1. Of the obligations of carriers of passengers, 417. 
 
 2. Of the liabilities of carriers of passengers, 418. 
 
 3. Of the rights of carriers of passengers, 418. 
 A. 2. Or carriers by water, 418. 
 
 § 6. Of postmasters, 419. 
 S. 2. Of pawns or pledges, 419. 
 
 § 1. What property may be pawned, 421. 
 § 2. What claim may be secured by a pledge, 422. 
 § 3 Of the delivery of the thing pledged, 422. 
 § 4. Of the obligations and rights of the pawnor, 422. 
 § 5. Of the obligations and rights of the pawnee, 423. 
 A. 1. Of the pawnee's right to use the pledge, 423. 
 
TABLE OF CONTENTS. Ixxvii 
 
 A. 2. What care pawnee must take of the pledge, 424. 
 A. 3. Of the remedy of the pawnee, 424. 
 
 1. Of the pawnee's right to sell the pledge, 424. 
 
 2. Of the pawnee's right of action, 425. 
 
 § 6. Of the extinction of the contract of pawn, 426. 
 2d Class. Of bailments for the benefit of the bailor, 426. 
 S. 1. Of deposits, 426. 
 
 § 1. Of the kinds of deposits, 427. 
 § 2. Of the nature of a regular deposit, 428. 
 A. 1. What property may be deposited, 429. 
 A. 2. Between what persons the contract maybe formed, 429. 
 A. 3. Of the requisites to form the contract of deposit, 429. 
 
 1. There must be a delivery, 429. 
 
 2. Of the intent of a delivery, 430. 
 
 3. The custody must be gratuitous, 430. 
 
 4. Of the consent of the parties, 430. 
 
 § 3. Of the rights and obligations of the parties, 431. 
 A. 1. Of the rights of the depositor, 431. 
 A. 2. Of the obligations of the depositary, 431. 
 
 1. Of the care to be exercised by the depositary, 431. 
 
 2. Of the return of the deposit, 432. 
 
 A. 3. Of the rights of the depositary, 432. 
 S. 2. Of mandates, 433. 
 
 § 1. Of the subject matter of the contract, 433. 
 § 2. The contract must be gratuitous, 434. 
 § 3. Consent of the parties and form of the contract, 434. 
 § 4. Obligations and rights of the mandatary, 435. 
 § 5. Obligations of the mandator, 436. 
 § 6. Of the dissolution of the contract of mandate, 436. 
 3d Class. Of bailments for the benefit of the bailee, 437. 
 S. 1. Of gratuitous loans for use or commodatum, 438. 
 
 § 1. Of the things lent, and the use to be made of them, 438. 
 
 § 2. The loan must be gratuitous, 439. 
 
 § 3. Of the rights of the borrower, 439. 
 
 § 4. Of the obligations of the borrower, 440. 
 
 A. 1. Of the degree of care to be taken of the thing, 440. 
 
 A. 2. Of the use of the thing, 440. 
 
 A. 3. Of the return of the thing loaned, 440. 
 
 A. 4. In what condition a loan must be returned, 441. 
 
 A. 5. How the contract of loan for use is dissolved, 441. 
 S. 1. Of gratuitous loan for consumption or mutuum, 441. 
 § 1. Of the nature of the contract, 442. 
 
 A. 1. What constitutes the essence of this contract, 442. 
 
 A. 2. Of the persons who may enter into this contract, and of the 
 things which may be lent, 443. 
 § 2. Of the obligation of the borrower, 444. 
 S. 3. Of loan on interest and usury, 444. 
 § 1. Of interest of money, 444. 
 
 A. 1. Who are bound to pay interest, 444. 
 
 A. 2. To whom interest is allowed, 445. 
 
 A. 3. On what claims interest is allowed, 445. 
 
 A. 4. Of the quantum or amount of interest allowed, 446. 
 
 1. During what time, 446. 
 
 2. Simple interest, 447. 
 
 3. Compound interest. 447. 
 
 4. Of foreign interest, 447. 
 
 5. Interest how computed, 448. 
 
 6. When interest shall be barred, 449. 
 § 2. Of usury, 450. 
 
 A. 1. Of the loan or forbearance, 451 . 
 
 A. 2. Of the agreement to return the principal at all events, 452. 
 
Ixxviii TABLE OF CONTENTS. 
 
 A. 3. Of the agreement to pay usury, 454. 
 A. 4. Of the Intention to violate the law, 454. 
 A. 5. Of the effect of a usurious contract, 454. 
 S. 4. Of the quasi contract called promutuum, 455. 
 C. 3. Of bills of exchange, 456. 
 S. 1. Of the parties, 457. 
 S. 2. Of the form of a bill of exchange, 457. 
 § 1. General requisites, 457. 
 § 2. Of the particular requisites, 458. 
 § 3. Of the different kinds of bills of exchange, 461. 
 A. 1. Of foreign bills of exchange, 461. 
 A. 2. Of inland bills of exchange, 461. 
 § 4. Of the indorsement, 462. 
 
 A. 1. Of the form of the indorsement, 462. 
 A. 2. Of the effect of the indorsement, 463. 
 § 5. Of the acceptance, 465. 
 
 A. 1. By whom the acceptance ought to he made, 465. 
 A. 2. Of the time of the acceptance, 465. 
 A. 3. Of the form of the acceptance, 466. 
 A. 4. Of the extent and effect of the acceptance, 467. 
 S. 3. Of the presentment of a bill of exchange, 467. 
 § 1. To whom it must be presented, 46S. 
 § 2. The place where the presentment ought to be made, 468. 
 § 3. Of the time of presentment, 468. 
 § 4. Of the excuses for not making a presentment, 469. 
 A. 1. Excuses applicable to all indorsees, 469. 
 A. 2. Excuses applicable to particular indorsees, 470. 
 S. 4. Of the notice of dishonor, 470. 
 
 § 1. Of the form of notice of dishonor, 471. 
 § 2. By whom to be given, 471. 
 § 3. To whom to be given, 472. 
 § 4. When notice of dishonor to be given, 472. 
 ^ 5. Where notice of dishonor to be given, 473. 
 § 6. The effect of notice of dishonor, 473. 
 § 7. What will excuse a want of notice, 474. 
 § 8. Of the waiver of the notice, 474. 
 S. 5. Of the protest, 474. 
 
 S. 6. How the parties to a bill are discharged, 475. 
 C. 4. Of promissory notes, 476. > 
 
 C. 5. Of marine insurance, 477. 
 
 S. 1. Of the parties to the policy, 478. 
 S.2. Of the things insured, 478. 
 
 § 1. Of the interest of the insured, 478. 
 §2. Of the ship, 479. 
 
 A. 1. Of the sea- worthiness of the ship, 480. 
 A. 2. Of the employment of the ship, 481. 
 A. 3. Ofthe voyage, 481. 
 
 1. When the illegality of the voyage shall avoid the contract, 481. 
 
 2. When deviation will discharge the underwriters, 482. 
 1° When a deviation can be justified, 482. 
 
 2° Of the effect of a deviation, 484. 
 S. 3. Ofthe risk, 485. 
 
 § 1. Ofthe nature ofthe risk, 485. 
 
 § 2. Of the duration of the risk, 486. 
 S. 4. Ofthe premium. 487. 
 S. 5. Of the form of the contract of insurance, 487. 
 
 § 1. General requisites of a policy, 487. 
 
 § 2. Of the formal parts of a policy, 488. 
 S. 6. Of warranties, 491. 
 S. 7. Of representations, 491. 
 S. 8. Of concealment, 493. 
 
TABLE OF CONTENTS. Ixxix 
 
 S. 9. Of the loss, 493. 
 S. 10. Of abandonment, 497. 
 S. 11. Of adjustment, 498. 
 S. 12. Of the different kinds of policies, 499. 
 C. 6. Of life insurance, 499. 
 
 S. 1. Of the interest insured, 500. 
 S. 2. Of the warranty, 500. 
 S. 3. Of the risk, 500. 
 S. 4. Of the adjustment, 501. 
 C. 7- Of insurance against fire, 501. 
 S. 1. Of the interest, 501. 
 
 S. 2. Of the risks and losses insured against, 502. 
 S. 3. Of the warranty and representation, 503. 
 S. 4. Of settling and adjusting the loss, 504. 
 C. S. Of bottomry and respondentia, 504. 
 S. 1. Of bottomry, 504. 
 
 § 1. Of the things to be loaned, 506. 
 § 2. Of the thing pledged on bottomry, 506. 
 I 3. Of the risks, 506. 
 ^ 4. Of maritime profits, 507. 
 § 5. Of the form of the contract of bottomry, 507. 
 A. 1. The sum loaned and at what interest, 507. 
 A. 2. Of the pledge, 507. 
 
 A. 3. Of the names of the ship and of the master, 508. 
 A. 4. Of the names of the lender and borrower, 508. 
 A. 5. Of the description of the voyage, or the term for which the 
 loan is made, 509. 
 S. 2. Of respondentia, 509. 
 C. 9. Of games and wagers, 509. 
 S. 1. Of gaming, 509. 
 S. 2. Of wagers, 511. 
 
INSTITUTES 
 
 AMERICAN LAW. 
 
 PRELIMINARY BOOK. 
 
 PART I.— OF LAWS IN GENERAL. 
 
 Man is a social being, fond of the company of his 
 fellows, and always disposed to live with others. It is 
 thus that families, tribes and nations are formed. Men 
 render to, and receive mutual benefits and assistance 
 from each other. But in such societies there must 
 constantly arise causes of difierence among the several 
 members, and these must be adjusted or settled, either 
 by the parties themselves, or by some power which is 
 superior to them. Their rights must also be regulated, 
 so that the parties may know to what each one is en- 
 titled. This is done by an actual or presumed agree- 
 ment of all the members of the society, state or nation, 
 by the estabhshment of certain rules, which acquire 
 the name of laws. The knowledge of these laws, or 
 the science by which they are understood, is called 
 jurisprudence. 
 
 2. The first step to understand this science is, there- 
 fore, to know exactly the nature of the laws, and to 
 form of them a definite and precise idea. By science 
 is understood a connection of truths, founded on evi- 
 dent principles or on demonstrations ; a collection of 
 
 Vol. I. 1 
 
OF LAWS IN GENERAL. 
 
 No. 3. Preliminary Book, part 1, tit. 1. No. 5. 
 
 truths of the same kind, arranged in a methodical 
 order, for the purpose of making them more easily 
 understood. 
 
 3. In its most extensive sense, the word law signi- 
 fies a rule of action. It is a rule which all beings, 
 whether animate or inanimate, reasonable or not, must 
 observe. Thus we say the laws of motion, of gravi- 
 tation, of paechanics, as we say natural laws, civil 
 laws, political or criminal laws. In this sense all be- 
 ings have their laws ; the material world, animals and 
 man, each have their laws. (a) 
 
 The knowledge of all these laws belongs to philoso- 
 phy, which, in its immensity, embraces all the know- 
 ledge which man can acquire by the use of his reason. 
 More circumscribed in its object, jurisprudence regu- 
 lates only human actions. 
 
 4. Law, in this view then, is the rule of human 
 actions ; that is, of those actions which are the result 
 of the free exercise of intelligence and will. 
 
 Law is called a rule of action by a metaphor bor- 
 rowed from mechanics. A rule, in its proper sense, is 
 an instrument, by means of which we draw, from one 
 point to another, the shortest line possible, which is 
 called a straight line. The rule is used in comparison 
 in the arts, in order to judge whether a line is straight, 
 as it is used^in law, to judge whether an action is just 
 or unjust. 
 
 An action is jast or right, when it conforms to the 
 rule, which is the law; it is unjust when it differs from 
 it ; it is not right. And so it is of our will or in- 
 tention. 
 
 TITLE I.— OF JUSTICE. 
 
 5. Justice has been variously defined: it is the con- 
 stant and perpetual disposition to render to every man 
 
 (o) Montesq. Esp. des Louis, liv. 1, c. L 
 
OF LAWS. 
 
 No. 6. Preliminary Book, part 1, tit. 2. No. 8. 
 
 his due; (a) or, perhaps more .correctly, it is a confor- 
 mity of our actions and wills to the law.(&) 
 
 6. Justice is interior or exterior. The first is the 
 conformity of our will, and the last of our actions to 
 the law. The union of both makes perfect justice. 
 The last is alone the subject of human jurisprudence. 
 Interior justice is the object of morality. 
 
 7 . In the most extensive sense of the word, justice 
 differs but little from virtue, for it includes within it- 
 self the whole circle of virtues. Yet the common dis- 
 tinction between them is this ; that which positively 
 and in itself is called virtue, when considered rela- 
 tively with respect to others, has the name of justice. 
 But justice, being in itself a part of virtue, is confined 
 to things simply good or evil, and consists in a man's 
 taking such a proportion of them as he ought. 
 
 TITLE II.— OF LAWS. 
 
 8. To make a law, there must be a superior, who has 
 authority to make it, and an inferior, who is bound by 
 it. To complete the definition of law, we must say 
 that it is a rule prescribed by a lawful superior. 
 
 God is the first great superior. Peace and order in 
 society would not be guaranteed by the principles of 
 human legislation, if those principles were not protect- 
 ed by the salutary influence of true religion. And 
 human laws would be insufficient to regulate the con- 
 duct of men, if their actions were not supported, direct- 
 ed and supplied by religion ; and morality and religion 
 would of themselves be powerless to insure the peace 
 of society, without the aid of the civil law. 
 
 Many moral obligations exist which are not enforced 
 by the civil law, and these are left to the operations 
 of conscience. Such, for example, as gratitude and 
 benevolence. 
 
 (a) Just. Inst. b. 2, 1. 1. (5) Toul. Dr. Civ. tit. Prel. n. 5. 
 
OF LAWS IN GENERAL. 
 
 No. 9. Preliminary Book, part 1, tit. 2, chap. 1, 2. No. 10. 
 
 CHAP. I.— OF THE LAW OF NATUEE. 
 
 9. The law of nature, or natural law, is that which 
 God, the sovereign of the universe, has prescribed to 
 all men, not by any formal promulgation, but by the 
 dictate of right reason alone. It is ascertained by a 
 just consideration of the agreeableness or disagreeable- 
 ness of human actions to the nature of man ; and it 
 comprehends all the duties we owe either to the Su- 
 preme Being, to ourselves, or to our neighbors ; as, 
 reverence to God, self-defence, temperance, honor to 
 our parents, benevolence to all, a strict adherence to 
 our engagements, gratitude, and the like. 
 
 By natural law is also understood the system or 
 collection of those laws arranged together in a me- 
 thodical order. 
 
 The law of nature is superior in obligation to any 
 other. It is bindtag in all countries and at all times. 
 No human laws are vaUd if opposed to this, and aU 
 which are binding derive their authority either directly 
 or indirectly from it. 
 
 CHAPTER n.— OF THE LAW OF NATIONS. 
 
 10. The law of nations is a system of rules, deduci- 
 ble by human reason. from the immutable principles of 
 natural justice, and estabhshed by universal consent 
 among the ci%'ilized nations of the earth, in order to 
 decide all disputes, and to insure the observance of 
 good faith and justice in that intercourse which must 
 frequently occur between them ; or it depends upon 
 mutual compacts, treaties, leagues and agreements 
 between separate, free and independent communi- 
 ties, (a) 
 
 The law of nations, jus gentium, has of late years 
 been called international law. 
 
 (a) Just. Inst. 1, 2, 1 ; Dig. 1, 1, 9. 
 
OF THE LAW OF NATIONS. 5 
 
 No. 10. Preliminary Book, part 1, tit. 2, chap. 2. No. 10. 
 
 Nations, with regard to each other, are considered 
 as individuals, and the law of nations is to regulate 
 the differences which may exist between them in their 
 national capacity. Being in a state of nature, they 
 must be considered as so many free and independent 
 persons living in that state ; and, therefore, the rules 
 of natural law are to be applied to them. 
 
 International law is generally divided into two 
 branches : 1 . The natural law of nations, consisting of 
 rules of justice applicable to the conduct of states. 
 2. The positive law of nations, Yfhich. consists of, 1st, 
 the voluntary law of nations, derived from the pre- 
 sumed consent of nations, arising out of their general 
 usage ; 2dly, the conventional law of nations, derived 
 from the express consent of nations, as individuals, as 
 evidenced in treaties and other international contracts 
 or compacts; 3dly, the customary law of nations, which 
 is a tacit consent to certain rules which have been 
 observed by them. (a) 
 
 The law of nations has been divided by writers into 
 necessary or voluntary, or into absolute and arbitrary; 
 by others into primary and secondary, which latter has 
 been subdivided into customary and conventional. An- 
 other division is made into natural and positive. 
 
 The various sources and evidence of the law of na- 
 tions are the following : 
 
 1 . The rules of conduct deducible by reason from 
 the nature of society existing among independent 
 states, which ought to be observed among nations. (6) 
 
 2. The adjudications of international tribimals, such 
 as prize courts and boards of arbitration. 
 
 3. Text writers of authority. 
 
 4. Ordinances or laws of particular states, prescrib- 
 ing rules of conduct for their commissioned cruisers 
 and prize tribunals. 
 
 5. The history of the wars, negotiations, treaties of 
 
 (a) Vat. Dr. des Gens, tit. Prel. 
 
 {b) The Le Louis, 2 Dods. 249. See Triquet v. Bath, W. Bl. 471. 
 
OF LAWS IN GENERAL. 
 
 No. 11. Preliminary Book, part 1, tit. 2, chap. 3. No. 11. 
 
 peace, and other matters relating to the intercourse of 
 nations. 
 
 6 . Treaties of peace, aUiance and commerce, declar- 
 ing, modifying or defining the preexisting interna- 
 tional law.(c!) 
 
 CHAPTER m.— OF MUNICIPAL LAW. 
 
 11. Various definitions have heen given of munici- 
 pal or civil law. According to Mr. Justice Blackstone, 
 it is "a rule of civil conduct, prescribed by the supreme 
 power in the state, commanding what is right and 
 prohibiting what is wrong." This definition has been 
 justly criticised ; the latter part has been considered 
 superabundant, and the first too general and indefinite, 
 and too Umited in its signification, to convey a just idea 
 of the subject. Mr. Chitty defines it to be "a rule of 
 civil conduct, prescribed by the supreme power in a 
 state, commanding what shall be done and what shall 
 not be done. "(6) But this does not appear to distin- 
 guish between a law which may have the form of a 
 judgment and a general law; as, for example, that 
 Primns shall pay Secundus a certain sum of money. 
 Laws should apply to all the citizens, (c) Civil or mu- 
 nicipal law is a rule of conduct prescribed to aU the citi- 
 zens by the supreme power in the state, in conformity 
 to the constitution, on a matter of common interest. It 
 is the solemn declaration of the legislative power, by 
 which it commands, under certain penalties or certain 
 rewards, what each citizen should do, not do, or suffer, 
 for the common good of the state. 
 _ In order fully to comprehend the subject, let us con- 
 sider the several parts of this definition. 
 
 1. It being the civil law, it of course prescribes rules 
 of civil conduct only. This distinguishes it from the 
 moral law, which is regulated by the law of nature or 
 the revealed law. 
 
 i: 
 
 a) Wheat. Int. Law, pt. 1, c. 1, ^ 14. (A 1 BL Com. 44. 
 
 b) 1 Bl. Com. 44, note 6, Chit. ed. 
 
OF MUNICIPAL LAW. 
 
 No. 11. Preliminary Book, part 1, tit. 2, chap. 3. No. 11. 
 
 2. It is a rule, because it is the standard of what 
 the law deems right and proper. It is also called a 
 rule, to distinguish it from advice or counsel, which may 
 be given even by an inferior; and the law is a precept 
 which all are bomid to obey. 
 
 3. The law is a rule of conduct. It is to regulate 
 the actions of men. The law regards man as a citi- 
 zen, who is bound to perform certain duties to his 
 neighbor. 
 
 4. It must be prescribed, for, until it is made known, 
 it has no binding authority. But if promulgated ac- 
 cording to the rules established in such cases, it is 
 binding, although it may be unknown. Laws are gene- 
 rally binding from their passage, that being a sufficient 
 publication ; but sometimes they are to take effect only 
 from some time named. In general they are published 
 in books and newspapers, by authority of the govern- 
 ment, for the information of the people. 
 
 5. The law must be prescribed to all the citizens. 
 It is not a transitory order, relating to an individual or 
 to a particular object; it is a permanent, uniform rule, 
 prescribed as to an object of general utility and of a 
 common interest. The law considers the citizens in 
 mass. It cannot apply to an individual, nor to a par- 
 ticular action, nor to a particular case. It is equal for 
 all, whether it protects or punishes. All men are 
 equal before the law. It is the constant practice of 
 the national and state legislatures, however, to pass 
 what are called private acts, such as to authorize the 
 sale of lands, and a variety of other things ; but these 
 cannot, with any propriety, be called rules of conduct. 
 
 6. Laws must be made in a solemn manner by the 
 sovereign authority, or by the supreme power in the 
 state. They derive their binding force from this power 
 alone. But it frequently happens that the power of 
 making laws is delegated to other bodies, by those 
 which derive their authority from the constitution. 
 Municipal and other corporations make ordinances or 
 laws, which have a binding force, though they derive 
 
OF SOVEREIGNTY. 
 
 No. 13. Preliminary Book, part 2, tit. 1. No. 13. 
 
 their power wholly from the legislature. In a late 
 case it was held that a law passed by the legislature, 
 which required the sanction of the people at an elec- 
 tion, was unconstitutional. (a) 
 
 7. The law must be made in conformity with the re- 
 quirements of the constitution. If the forms prescribed 
 by the constitution have not been observed, or the 
 power have not been delegated to the legislative body, 
 the act is unconstitutional and void. (6) 
 
 8. The law must have an object of common interest 
 to dl. It differs from orders or commands given by a 
 legitimate authority, although they may be obhgatory, 
 because the law authorizes their execution. It differs 
 also from judgments, which must always be given as 
 to past actions, whereas the law provides only for the 
 future. 
 
 12. Having shown that law is a rule prescribed by 
 the supreme power or sovereignty of the state, and 
 that it is a solemn declaration of the legislative power, 
 it will be proper to inquire what is the sovereignty ; 
 what is the government of the United States ; how 
 laws are made, and how many kinds there are. These 
 win be considered separately. 
 
 PART II.— OF SOVEREIGNTY. 
 
 13. This chapter will be divided into five sections : 
 1, what is sovereignty ; 2, by whom it is to be exer- 
 cised; 3, how it is divided; 4, what is the constitution 
 of a state ; 5, of the different forms of government. 
 
 TITLE I.— WHAT IS SOVEREIGNTY. 
 
 Sovereignty is that pubUc authority which has no 
 superior, and which commands in an independent civil 
 
 (a) Parker v. Commonwealth, 6 Penn. St. R. 507. 
 [h) Commonwealth v. Mann, 5 W. & S. 403, 419. 
 
POWERS OF SOVEREIGNTY. 
 
 No. 14. Preliminary Book, part 2, tit. 2, 3, 4. No. 19. 
 
 society, ordering and directing what each must do, 
 to acquire its ends. It is the union of all the powers; 
 it is the power to do any and every thing in a state, 
 without being accountable to any one ; to make laws 
 and execute them; to coin money; to impose and levy 
 contributions ; to declare war, or to make peace ; to 
 form treaties with foreign nations, etc. 
 
 TITLE n.— BY WHOM SOVEREIGNTY IS TO BE 
 EXERCISED. 
 
 14. Abstractedly, sovereignty belongs to the people, 
 and resides essentially in the body of the nation. But 
 the nation, from whom emanate all the powers of 
 sovereignty, can exercise them only by delegation. 
 Sovereignty cannot be exercised otherwise, except in 
 small republics. 
 
 TITLE in.— HOW THE POWERS OF SOVEREIGNTY 
 ARE DIVIDED. 
 
 15. If we analyze sovereignty, we find it composed 
 of three powers, namely, the legislative, the executive, and 
 the judicial. 
 
 16. The first, is the power to make new laws, to 
 correct, repeal or abrogate the old. 
 
 17. The second, is the power to cause those laws to 
 be executed or obeyed. This power is usually exer- 
 cised by a single individual, known by the names of 
 president, governor, emperor, king, etc. 
 
 18. The third, is the power to apply the law to par- 
 ticular facts; to judge of difierences which arise among 
 the citizens or inhabitants of the state, and to punish 
 crimes. This is vested in courts of justice. 
 
 TITLE IV.— WHAT IS A CONSTITUTION. 
 
 19. A constitution is the fundamental law of the 
 state, containing the principles upon which the govern- 
 ment is founded, and regulating the division of the 
 sovereign powers, directing to what persons each of 
 
10 OF SOVEREIGNTY. 
 
 No. 20. Preliminary Book, part 2, tit. 5. No. 22. 
 
 these powers is to be confided, and the manner in 
 which it is to be exercised. 
 
 The constitution is made by the authority of the 
 people themselves, or their delegates specially autho- 
 rized, and it can be changed only by the like power. 
 The legislature, which is the creature of the constitu- 
 tion, cannot make any change in such fundamental 
 law. 
 
 TITLE v.— OF THE DIFFEEENT FOEMS OF GOVERN- 
 MENT. 
 
 20. Government is the manner in which sovereignty 
 is exercised in the state. It is the means adopted to 
 put the fundamental law of the state in action. It is 
 the function and the very end of the government to 
 apply this fundamental law for the happiness and ad- 
 vantage of all the citizens; for the constitution of the 
 state is the lawful expression of the wants and of the 
 will of all. Hence follows this necessary consequence, 
 that the government is the delegate of society, the 
 state, or the nation. The people, being sovereign, may 
 adopt any of the forms of government wliich have 
 been devised among men. 
 
 21. There have been at all times, and there are 
 now, different forms of government, the three prin- 
 cipal of which are democracy, aristocracy, and mon- 
 archy. But these different forms are combined and 
 subdivided to infinity. From the African prince, who 
 disposes freely of the lives and properties of his sub- 
 jects, to the European monarch, whose power is con- 
 tained within much narrower bounds; from the savage 
 cazique, who governs his tribe because he is the oldest 
 man in it, to the republican magistrate who is elected 
 by the free suffrage of his fellow citizens, we perceive 
 an infinity of organic combinations. 
 
 22. When the sovereign power is exercised by the 
 people in a body, or by a majority of the people, the 
 government is called a democracy. In this form of 
 
FORMS OF GOVERNMENT. 11 
 
 No. 23. PrclimiHary Book, part 2, tit. 5. No. 27. 
 
 government all men are equal in a political and civil 
 point of view. Democracy is the complete triumph 
 of the principle of equality. All the citizens must 
 have an equality of rights and not merely of privi- 
 leges. 
 
 23. When the sovereign power is exercised by a 
 small number of persons, in their own right, exclu- 
 sively from the rest of the people, this form of govern- 
 ment is called an aristocracy. In an aristocratic 
 country the rulers claim the power to govern in their 
 own right, and not by delegation, as in a representative 
 democracy. Aristocracy and slavery spring from the 
 same root. The first is the parent of the second, for 
 the master and slave appeared on the same day. 
 
 24. When the sovereign power is concentrated in 
 the hands of a single magistrate, the government is a 
 monarchy, whether it bear the name of an empire, a 
 kingdom, a duchy, or any other. 
 
 25. But the sovereign power may be divided and 
 combined in a thousand different ways ; hence result 
 mixed governments, such as are most of those of civilized 
 nations. Indeed, it may with truth be observed that 
 the constitution of each state, consisting in the manner 
 in which the powers of sovereignty are divided, seldom 
 remains the same for any great length of time. Its 
 form varies more frequently than it would strike one 
 at first blush, in consequence of the encroachments 
 which are insensibly made by one branch of the go- 
 vernment over the others. There are, besides these 
 principal forms, a variety of governments, which will 
 here be defined. 
 
 26. Theocracy is a government where the clergy 
 exercise the sovereign power, under a pretence that it 
 is the government of God, and under his immediate 
 direction. (a) 
 
 27. Ochlogracy is a government where the authority 
 
 (a) Matter, De I'mfluence des moeurs sur les lois, et de I'influence des 
 lois sur les moeurs, 189. 
 
12 OF SOVEREIGNTY. 
 
 No. 28. Preliminary Book, part 2, tit. 5. No. 32. 
 
 is in the hands of the multitude ; it is the abuse of a 
 democracy, (a) 
 
 28. Oligarchy is a government where the sovereign 
 authority has been usurped by a few men, when such 
 power ought to reside in the people. 
 
 29. Demagogy is the exaggeration and abuse of 
 democracy, and is a violation of the principle of the 
 sovereignty of the people. 
 
 30. Polyarchy is that form of government in which 
 the authority is confided to several persons ; as, for 
 example, the Directory and the Consulate, and the late 
 Pro visionary government of France. Another exam- 
 ple may be given where two brothers, the sons of a 
 king, succeed to the throne and reign jointly. 
 
 31. A representative democracy is a government 
 where the powers of sovereignty are delegated to a 
 body of men, elected from time to time, who exercise 
 them for the benefit of the whole nation. Such is the 
 general government of the United States, and of the 
 several states of the American Union. 
 
 32. Despotism is the state where the powers of the 
 government are not divided, but united in the hands 
 of a single man, whatever may be the title he bears, 
 emperor, king, sultan, president, etc. Where the power 
 of such man is not limited by law, he may, having 
 only his wiU for a rule, make or repeal laws, execute 
 them or not, at his pleasure,'etc. This is not properly 
 a form of government but an abuse of government. 
 Despotism is an act of tyranny. 
 
 By tyranny is understood the violation of the laws 
 which regulate the exercise of the powers of sovereign- 
 ty, and tyrant the chief of the state, who, although he 
 may be legitimate, violates them for the purpose of 
 committing arbitrary acts contrary to justice. 
 
 The terms tyrant and usurper are often confounded, 
 because usurpers are almost always tyrants. But 
 these terms are very different. Even a legitimate 
 
 (a) Vaumene, Diet, du Langage Politique, h. v. 
 
GOVERNMENT OF THE UNITED STATES. 13 
 
 No. 33. Preliminary Book, part 3, tit. 1. No. 37. 
 
 king may become a tyrant, if he governs in an unjust 
 and despotic manner ; and a usurper may cease to be 
 a tyrant by governing according to justice. 
 
 33. A commonwealth is that form of government in 
 which the administration of public affairs is open or 
 common to all persons, without any special regard to 
 rank or property, as distinguished from monarchy or 
 aristocracy. 
 
 84. A republic, which is another name for common- 
 wealth, is that form of government in which the ad- 
 ministration of affairs is open to all the citizens. In 
 another sense the term republic, res publica, signifies 
 the state independently of its form of government. 
 
 35. A hierarchy signified originally power of the 
 priests, for in the beginning of societies, the priests 
 were entrusted with all the power ; but among the 
 priests themselves there were different degrees of 
 power and authority, at the summit of which was the 
 sovereign pontiff, and this was called the hierarchy. 
 Now it signifies not so much power of the priest, as 
 order of power. 
 
 36. Stratocracy is a military government. This 
 word is derived from two Greek words signifying army 
 and power. 
 
 PART in.— OF THE GOVERNMENT OF THE UNITED 
 
 STATES. 
 
 37. This part will be divided into four titles ; 
 1, of the history of the formation of the government 
 of the United States ; 2, by whom the sovereignty is 
 exercised ; 3, in whom the government is vested by 
 the constitution ; 4, of the government of the several 
 states. 
 
 TITLE I.— OP THE HISTORY OF THE FORMATION OF 
 THE GOVERNMENT OF THE UNITED STATES. 
 
 The government of Great Britain had obtained a 
 footing on the American continent by right of disco- 
 
14 GOVERNMENT OF THE UNITED STATES. 
 
 No. 37. Preliminary Book, part 3, tit. 1. No. 37. 
 
 very, and in 1606 established two colonies, namely, 
 Virginia and Massachusetts, and, from that period untU 
 the year 1732, other colonies were established along 
 the eastern shore of the continent. These were go- 
 verned in various modes ; they had provincial, pro- 
 prietary, and charter governments ; but they did not 
 essentially differ from each other. The people were 
 all subjects of the mother country, and under the same 
 general government. They had all brought and 
 adopted the laws of England, which were suitable to 
 their condition, but they were independent of each 
 other. Each colony had its own legislature, and they 
 were all dependent colonies and not independent 
 states ; consequently they could make no laws repug- 
 nant to the acts of the parliament of England or of 
 Great Britain ; and the mother country assumed the 
 right of biuding the colonies, in all cases, by acts of 
 parhament. This soon produced the most resolute de- 
 nial, on the part of the colonies, who claimed that tax- 
 ation and representation should be inseparable, and, as 
 they were not represented in the British parliament, 
 they insisted that no taxes could be imposed upon them 
 by the laws of Great Britain, and they prepared to 
 resist such acts of oppression. Before this period the 
 colonies had found it necessary to unite together, to 
 repress the hostilities of the French and Indians. For 
 this purpose they had assembled at various periods. 
 As soon as they resolved to oppose these tyrannical 
 acts of Great Britaia they formed a revolutionary 
 league, and, in 1774, the people of the colonies elected 
 delegates to represent them in a general assembly', 
 which met in Philadelphia, and assumed the name of 
 the Continental Congress. This was the commencement 
 of that union which has made our country the admira- 
 tion of the whole world. 
 
 The colonies which were represented in this congress 
 were thirteen in number, namely : New Hampshire, 
 Massachusetts, Rhode Island, Connecticut, New York, 
 
GOVERNMENT OF THE UNITED STATES. 15 
 
 No. 37. Preliminary Book, part 3, tit. 1. No. 37. 
 
 New Jersey, Pennsylvania, Delaware, Maryland, Vir- 
 ginia, North Carolina, South Carolina, and Georgia. 
 
 On the fourth day of July, 1776, a day memorable 
 in the annals of human liberty, the Continental Con- 
 gress adopted the celebrated Declaration of Independ- 
 ence, which severed the tie between Great Britain and 
 her colonies, and the latter became free and independ- 
 ent states. In this memorable instrument are por- 
 trayed, in nervous language, the various acts of tyranny 
 of Great Britain, a firm reliance upon God, and an im- 
 swerving determination to support the rights of the 
 American people. 
 
 By the dissolution of the relations which existed 
 between the colonies and the mother country, the 
 former were left with no other than their local go- 
 vernments. A common sense of danger, in this situa- 
 tion, induced the new states to adopt that form of 
 government, which is contained in the Articles of Con- 
 federation. This instrument obtained its full force in 
 1781, but owing to its inefficiency, it was found not to 
 answer the purpose for which it was intended. 
 
 To remedy the evils attendant upon the weakness of 
 the Articles of Confederation, delegates were appointed 
 by the legislatures of all the states, except Rhode 
 Island, who assembled in Philadelphia in May, 1787, 
 with power to amend the Articles of Confederation. 
 It was soon found impracticable to amend them, and 
 it was resolved to form a new instrument, which re- 
 sulted in the Constitution of the United States, which 
 was unanimously adopted by the Convention on the 
 17th day of September, 1787. After much considera- 
 tion, the legislatures of all the states ratified the con- 
 stitution, and it went into full operation on the fourth 
 day of March, seventeen hundred and eighty-nine. (a) 
 A number of amendments have since been made in 
 the constitution, and ratified by the requisite number 
 of the states. 
 
 (a) Owings v. Speed, 5 Wheat. 420. 
 
16 GOVERNMENT OF THE UNITED STATES. 
 
 No. 38. Preliminary Book, part 3, tit. 2, chap. 1. No. 40. 
 
 TITLE n.— BY WHOM THE SOVEEEIGNTY IS EXEE- 
 CISED IN THE UNITED STATES. 
 
 38. By the Declaration of Independence, and the 
 acknowledgment of Great Britain that the United 
 States of America are and were free and independent 
 states, they became a nation. 
 
 39. In its original signification the word nation de- 
 noted those of the same origin, who were natives of 
 the same race, although they might live in different 
 countries; as, for example, the Jewish nation; and the 
 miion of the several tribes of the Greeks, although they 
 composed several states, made but one nation. In this 
 sense the Romans understood this term, for they had 
 but one word, gens, to represent race and nation. But 
 considered in a more limited sense, the word nation 
 indicates a social form, in which a certain number of 
 towns, or particular states, whether of the same race 
 or origin or not, obey a law common to them all and 
 the same government. A nation is, therefore, an in- 
 dependent body politic ; a society of men united to- 
 gether for the purpose of promoting their mutual safety 
 and advantage by their joint efforts and their combined 
 strength. Such a nation becomes a moral person, and 
 is susceptible of obligations and rights. (a) 
 
 In considering the people of the United States they 
 may be classed as follows : those born in the country, 
 and those born out of it. 
 
 CHAPTER I.— OF THOSE BORN IN THE COUNTRY. 
 
 _ 40. The natives, or persons born within the jurisdic- 
 tion of the United States, in any state or territory, 
 have not all the same rights, some being citizens, and 
 others not; some having all their civil rights, and 
 others being deprived of them. 
 
 (a) Vat. Prel. §1,2; The Cherokee Nation v. The State of Georgia, 5 
 
 =>t_ Tt ?,'>. ° 
 
 Pet. R. 52 
 
INHABITANTS OF THE UNITED STATES. 17 
 
 No. 41. Ifreliminary Book, part 3, tit. 2, chap. 2. No. 41. ' 
 
 1st. White, persons, so born, are, in general, citizens 
 of the United States, unless they have lost that right. 
 By white person is meant one who is not of the Indian 
 or African race ; but it is not easy to say what 
 shade of color or mixture will deprive a man of the 
 quality of being white, or will entitle him to that ap- 
 pellation. 
 
 2dly. The aborigines, or persons of the Indian race, 
 are not in general citizens of the United States, and 
 can exert no political rights. 
 
 3dly . Negroes, or descendants of the African race, in 
 general, possess no political power whatever; they can- 
 not vote or hold office; and many of them are deprived 
 even of their civil rights, being holden in a state of 
 slavery. 
 
 4thly. Children of foreign ambassadors, although born 
 in the United States, are not citizens, being aliens, as 
 their fathers were at the time of their birth. 
 
 CHAPTER n.— OF INHABITANTS OF THE UNITED STATES BORN 
 OUT OF THEIR JURISDICTION. 
 
 41. Like those born within the United States, per- 
 sons born out of their territory are entitled to differr 
 ent rights ; some are citizens and others are not. 
 
 1st. Persons born out of the United States who are 
 children of citizens of the United States, or of persons 
 who have been such, are citizens, provided the father 
 of such children shall have resided within the same. (a) 
 
 2dly. Persons who were in the country at the time 
 of the adoption of the Constitution, have the rights of 
 citizens. 
 
 3dly. Persons who became naturalized under the 
 laws of any state before the passage of any law on the 
 subject of naturalization by Congress, or who have be- 
 come naturalized under the acts of Congress, are citi- 
 zens of the United States, and, like other citizens, are 
 
 (a) Act of Cong, of AprU 14, 1802, s. 4. 
 
 Vol. I. 2 
 
18 GOVERNMENT OF THE UNITED STATES. 
 
 No. 42. Preliminary Book, parts, tit. 3, chap. 1. No. 43. 
 
 entitled to vote for all officers who are elected by citi- 
 zens, and to hold any office except those of president 
 and vice-president of the United States. 
 
 4thly. Children of naturalized citizens, who were 
 under the age of twenty-one years at the time of their 
 parents' being so naturalized or admitted to the rights 
 of citizenship, are, if then living in the United States, 
 considered as citizens, and entitled to the same rights 
 as their respective fathers. 
 
 5thly. Persons who resided in a territory which was 
 annexed to the United States by treaty, and the territory 
 afterward became a state of the Union : as, for exam- 
 ple, a person who, born in France, moved to Louisi- 
 ana in 1806, settled there, and remained in the terri- 
 tory till it was admitted as a state, was held to be a 
 citizen of the United States, although not naturalized 
 under the acts of congress. (a) 
 
 6thly. Aliens and foreigners, who have never been 
 naturalized, are not citizens of the United States, and 
 have no political rights whatever. 
 
 TITLE III. — IN WHOM THE GOVERNMENT OF THE 
 UNITED STATES IS VESTED BY THE CONSTITU- 
 TION. 
 
 42. The constitution vests the legislative power in 
 Congress; the executive in the President of the United 
 States ; and the judicial power in certain courts and 
 tribunals. These will be separately considered. 
 
 CHAPTER I.- OF THE LEGISLATIVE POWER. 
 
 43. All legislative power granted by the constitution 
 is vested in a Congress of the United States, which con- 
 sists of a senate and house of representatives. (6) 
 
 The congress shall assemble at least once in every 
 year, and such meeting shall be on the first Monday of 
 
 (a) Desbois' case, 2 Mart. Lo. R. 185. (5) Const. U. S. art. 1, sec. 1. 
 
LEGISLATIVE POWER. 19 
 
 No. 43. Preliminary Book, part 3, tit. 3, chap. 1. No. 43. 
 
 December, unless they shall by law appoint a different 
 day. (a) 
 
 1. Each house shall be judge of the elections, re- 
 turns and qualifications of its own members ; and a 
 fiiajority of each shall constitute a quorum to do busi- 
 ness ; but a smaller number may adjourn from day to 
 day, and may be authorized to compel the attendance 
 of absent members, in such manner, and under such 
 penalties, as each house may provide. 
 
 2. Each house may determine the rules of its pro- 
 ceedings, punish its members for disorderly behaviour, 
 and, with the concurrence of two-thirds, expel a 
 member. 
 
 3. Each house shall keep a journal of its proceed- 
 ings, and from time to time pubhsh the same, except- 
 ing such parts as may, in their judgment, require se- 
 crecy; and the yeas and nays of the members of either 
 house on any question shall, at the desire of one-fifth 
 of those present, be entered on the journal. 
 
 4. Neither house, during the session of congress, 
 shall, without the consent of the other, adjourn for more 
 than three days, nor to any other place than that in 
 which the two houses shall be sitting. (6) 
 
 The senators and representatives shall receive a 
 compensation for their services, to be ascertained by 
 law, and paid out of the treasury of the United States. 
 They shall, in all cases, except treason, felony, and 
 breach of the peace, be privileged from arrest during 
 their attendance at the session of their respective 
 houses, and in going to or returning from the same ; 
 and for any speech or debate in either house, they shall 
 not be questioned in any other place. (c) 
 
 No senator or representative shall, during the time 
 for which he was elected, be appointed to any civil 
 office under the authority of the United States, which 
 shall have been created, or the emoluments whereof 
 
 (a) Const. U. S. art. 1, s. 4. (c) Const. U. S. art. 1, s. 6. 
 
 (b) Ibid. s. 5. ^ 
 
20 GOVERNMENT OF THE UNITED STATES. 
 
 No. 43, Preliminary Book, part 3, tit. 3, chap, 1, No. 43. 
 
 shall have been increased, during such time ; and no 
 person holding any office under the United States, shall 
 be a member of either house diu-ing his continuance 
 in office. (a) 
 
 By section 8, article 1, the congress shall have 
 power — 
 
 1. To lay and collect taxes, duties, imposts, and 
 excises ; to pay the debts, and provide for the common 
 defence and general welfare of the United States ; but 
 all duties, imposts and excises, shall be uniform 
 throughout 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 estabUsh a uniform rule of naturalization, and 
 uniform laws on the subject of bankruptcies, through- 
 out the United States : 
 
 5. To coin money, regulate the value thereof, and 
 of foreign coin, and fix the standard of weights and 
 measures : 
 
 6. To provide for the punishment of counterfeiting 
 the securities and current coin of the United States : 
 
 7. To establish post-offices and post-roads : 
 
 '8. To promote the progress of science and useful 
 arts, by securing for limited times, to authors and 
 inventors, the exclusive right to their respective wri- 
 tings and discoveries : 
 
 9. To constitute tribunals inferior to the supreme 
 court : 
 
 10. To define and punish piracies and felonies com- 
 mitted on the high seas, and offences against the law 
 of nations : 
 
 11. To declare war, grant letters of marque and 
 reprisal, and make rules concerning captures on land 
 and water : 
 
 12. To raise and support armies; but no appropri- 
 
 (a) Const. U. S..art. 1, s. 6. 
 
OF THE SENATE. 21 
 
 No. 44. ' Preliminary Book, part 3, tit. 3, chap. 1, sec. 1. No. 44. 
 
 ation of money to that use shall be for a longer term 
 than two years : 
 
 13. To provide" and maintain a navy: 
 
 14. To make rules for the government and regula- 
 tion of the land and naval forces : 
 
 15. To provide for calling forth the militia to execute 
 the laws of the Union, suppress insurrections, and repel 
 invasions : 
 
 16. To provide for organizing, arming and disciplin- 
 ing the militia, and for governing such part of them 
 as may be employed in the service of the United 
 States, reserving to the states respectively the appoint- 
 ment of the ofl&cers, and the authority of training the 
 militia, according to the discipline prescribed by con- 
 gress : 
 
 17. To exercise exclusive legislation, in all cases 
 whatsoever, over such district (not exceeding ten miles 
 square) as may, by cession of particular states, and 
 the acceptance of congress, become the seat of govern- 
 ment of the United States, and to exercise like au- 
 thority over all places purchased by the consent of the 
 legislature of the state in which the same shall be, for 
 the erection of forts, magazines, arsenals, dock-yards, 
 and other needful buildings : And, 
 
 18. To make all laws which shall be necessary and 
 proper for carrying into execution the foregoing powers, 
 and all other powers vested by this constitution in the 
 government of the United States, or in any department 
 or officer thereof. 
 
 The Senate and House of Representatives will be 
 separately considered. 
 
 SECTION I. — OP THE SENATE. 
 
 44. In considering the Senate let us inquire, 1, into 
 the number of senators; 2, by whom they are elected; 
 3, into their qualifications ; 4, the time of their elec- 
 tion ; 5, the duration of their office ; 6, their powers. 
 
22 GOVERNMENT OF THE UNITED STATES, 
 
 No. 45. Preliminary Book, part 3, tit. 3, chap. 1, sec. 1, J 1, 2, 3, 4, 5. No. 48, 
 
 § 1. — Number of Senators. 
 
 The Senate is composed of two members from each 
 state, who are called senators. (a) This is fixed with- 
 out any regard to the number of inhabitants in the re- 
 spective states; the senators represent the states rather 
 than the people. The Vice-President of the United 
 States is president of the senate. 
 
 § 2. — By whom they are elected. 
 
 45. The senators are chosen by the legislature of 
 each state,(6) and in cases of vacancies, they are ap- 
 pointed by the executive of the state, and are then to 
 serve until the next meeting of the legislature, which 
 shall then fill such vacancies. (c) 
 
 § 3. — Qualifications of Senators. 
 
 46. No person shall be a senator who shall not have 
 attained the age of thirty years, and been nine years a 
 citizen of the United States, and who shall not, when 
 elected, be an inhabitant of that state for which he 
 shall be chosen. (tZ) 
 
 § 4. — Time of the election of Senators. 
 
 47. After the first election of senators, under the 
 constitution, they were divided according to its requi- 
 sition, into three classes. The seats of the first class 
 were vacated at the expiration of the second year; the 
 second class at the expiration of the fourth year ; and 
 the third class at the expiration of the sixth year ; so 
 that one- third may be chosen at the expiration of every 
 second year.(e) 
 
 § 5. — Duration of the office of Senators. 
 
 48. The senators are chosen and hold their office 
 for the term of six years. 
 
 (a) Const, art. 1, a. 3. (d) Const, art. 1, s, 3. 
 
 (J) Ibid. V /-.- 
 
 (c) Ibid. 
 
 (* Ibid. (ej Ibid. 
 
OF THE SENATE. 23 
 
 No. 49. Pveliminaiy Book, parts, tit. 3, chap. 1, §6, art. 1, 2. No. 51. 
 
 § 6. — Power of Senators. 
 
 49. In their deliberations and all their acts each 
 senator has the right to speak and give his opinion, 
 and they vote not by states, but each senator has a 
 vote. The president of the senate has no vote except 
 when the senate are equally divided, when he gives 
 the casting vote. 
 
 The senate act in three distinct capacities, and to this 
 body are delegated legislative power, executive autho- 
 rity, and judicial functions. A short view will be taken 
 of each of these. 
 
 Article 1. — Of the Legislative power of the Senate. 
 
 50. No law can be made without the concurrence 
 of the senate. A majority of the senate constitutes a 
 quorum; this majority relates not to the states but to 
 the members of the senate. 
 
 Article 2. — Of the Executive authority of the Senate. 
 
 51. By the constitution the president has power, by 
 and with the advice and consent of the senate, to make 
 treaties, provided two-thirds of the senators present 
 concur. (a) 
 
 Till the treaty has been completed by the president 
 or the agents of the United States under his direction 
 and foreign powers, the senate take no part in the mat- 
 ter. It is then submitted to the senate, and, in their 
 deliberations the president takes no part, but he gives 
 them, when required, such information relative to it 
 as they may want. The senate may ratify it in whole 
 or in part, or reject the whole ; or they may recom- 
 mend additional articles, or modify those which have 
 been agreed upon. In such case the treaty is again 
 the subject of negotiation with foreign powers, if the 
 president approve of such alterations or additions. 
 
 (a) Const, art. 2, s. 2, n. 2. 
 
24 GOVERNMENT OF THE UNITED STATES. 
 
 No. 52. Preliminary Book, part 3, tit. 3, chap. 1, sec. 2, § 1. No. 54. 
 
 The senate must give their concurrence to the ap- 
 pointment of certain oflficers before they can be ap- 
 pointed. The constitution provides that the president 
 shall nominate, and by and with the consent of the 
 senate, shall appoint public ambassadors, other public 
 ministers and consuls, judges of the supreme court and 
 other oflBcers of the United States, whose appointments 
 are not therein provided for, and which shall be estab- 
 lished by law ; but the congress may by law vest the 
 appointment of such inferior officers as they think 
 proper in the president alone, in the courts of law, or 
 in the heads of departments. (a) 
 
 The proceedings of the senate, while acting on 
 executive business, are with closed doors, and such 
 proceedings are kept secret until the senate annul the 
 restriction of secrecy. 
 
 Article 3. — Of the Judicial functions of the Senate. 
 
 52. Whenever an officer of the government is im- 
 peached by the house of representatives, such impeach- 
 ment is to be tried by the senate. The constitution 
 directs that the senate shall have the sole power of 
 trying impeachments. When sitting for that purpose 
 the senators shall be on oath or affirmation. When the 
 president of the United States is tried, the chief justice 
 shall preside ; and no person shall be convicted without 
 the concurrence of two-thirds of the members pre- 
 sent. (&) 
 
 SECTION 2. — OF THE HOUSE OF REPEESENTATIVES. 
 
 53. The same order will be observed in considering 
 the house of representatives which has been adopted 
 with regard to the senate. 
 
 § 1. — Number of Members. 
 
 54. Representatives and direct taxes shall be ap- 
 
 (a) Const, art. 2, s. 2, n. 2. (}) Art. 1, s. 3, n. 6. 
 
HOUSE OF REPRESENTATIVES. 25 
 
 No. 55. Preliminavy Book, pavt 3, tit. 3, chap. 1, sec. 2, 5 2, 3, 4, 5. No. 58. 
 
 portioned among the several states which may be in- 
 cluded within this Union, according to their respective 
 numbers, which shall be determined by adding to the 
 whole number of free persons, including those bound 
 to service for a term of years, and, excluding Indians 
 not taxed, three-fifths of all other persons. The ac- 
 tual enumeration shall be made within three years 
 after the first meeting of the congress of the United 
 States, and within every subsequent term of ten years, 
 in such manner as they shall by law direct. The 
 number of representatives shall not exceed one for 
 every thirty thousand, but each state shall have at 
 least one representative. (fl) 
 
 § 2. — By whom they are elected. 
 
 55. Representatives are elected by the people of the 
 several states, and the electors in each state shall have 
 the qualifications requisite for electors of the most 
 numerous branch of the state legislature. (6) 
 
 § 3. — Qualifications of members of House of Representatives. 
 
 56. No person shall be a representative who shall 
 not have attained the age of twenty-five years, and 
 been seven years a citizen of the United States, and 
 who shall not, when elected, be an inhabitant of that 
 state in which he shall be chosen. (c) 
 
 § 4. — Of the time of their Election. 
 
 57. They are elected every second year. When 
 vacancies happen in the representation from any state, 
 the executive authority thereof shall issue writs of 
 election to fill such vacancies. ((/) 
 
 § 5. — Duration of their Office. 
 
 58. Representatives are chosen and hold their office 
 for the term of two years. 
 
 (a) Const, art. 1, s. 2, n. 3. (c) Const, art. 1, s. 2, n. 2. 
 
 (i) lb. art. 1, s. 2, n. 1. (d) lb. art. 1, s. 2, n. 1 and 4. 
 
26 GOVERNMENT OF THE UNITED STATES. 
 
 No. 59. Preliminary Book, part 3, tit. 3, chap. 2, eec. 1, No. 61. 
 
 § 6. — ^Power of Representatives. 
 
 59. The most important of the functions of repre- 
 sentatives is that of legislation, but they have also a 
 power somewhat similar to that of the grand jury. lu 
 all cases, each member has one vote. One of their 
 members is elected speaker or president of the house, 
 who, with the rest, has a right to vote. No law can 
 be passed without the concurrence of the house of re- 
 presentatives. 
 
 ' The house has the exclusive right to originate bills 
 for raising revenue ; but the senate may propose or 
 concur with amendments, as on other bills. 
 
 It shall choose its speaker and other oflBcers ; and 
 shall have the sole power of impeachment. 
 
 CHAPTER n.— OF THE EXECUTIVE POWER. 
 
 60. The executive power is vested in a President of 
 the United States. It will be proper to consider, 1, 
 by whom he is elected ; 2, his qualifications ; 3, the 
 time of his election ; 4, the duration of his ofiice ; 5, 
 his power and duties ; 6, of the vice-president. 
 
 SECTIO>' 1. BY WHOM THE PRESIDENT IS ELECTED. 
 
 61. Each state shall appoint, in such manner as the 
 legislature thereof may direct, a number of electors, 
 equal to the whole number of senators and representa- 
 tives to which the state may be entitled in the con- 
 gress;* but no senator or representative, or person 
 holding an office of trust or profit under the IJnited 
 States, shall be appointed ^n elector.(a) 
 
 The electors shall meet in their respective states, 
 and vote by ballot for president and vice-president, 
 one of whom, at least, shall not be an iuhabitant of the 
 same state with themselves ; they shall name in their 
 ballots the persons voted for as president, and in. 
 distinct ballots the persons voted for as vice-presi- 
 
 (a) Const, art. 2, s. 1, n. 2. 
 
OF THE PRESIDENT. 27 
 
 No. 62. Preliminary Book part 3, tit. 3, chap. 2, sec. 2. No. 62. 
 
 dent; and they shall make distinct lists of all per- 
 sons voted for as president, and of all persons voted 
 for as vice-president, and of the number of votes for 
 each; which lists they shall sign and certify, and 
 transmit sealed to the seat of government of the 
 United States, directed to the president of the senate. 
 The president of the senate shall, in the presence of 
 the senate and house of representatives, open all the 
 certificates, and the votes shall then be counted ; the 
 person having the greatest number of votes for presi- 
 dent shall be president, if such number be a majority 
 of the whole number of electors appointed ; and if no 
 person have such majority, then from the persons 
 having the highest number, not exceeding three, on 
 the Ust of those voted for as j)resident, the house of 
 representatives shall choose immediately, by ballot, the 
 president. But, in choosing the president, the votes 
 shall be taken by states, the representation from each 
 state having one vote ; a quorum for this purpose shall 
 consist of a member or members from two-thirds of 
 the states, and a majority of all the states shall be 
 necessary to a choice. And if the house of representa- 
 tives shall not choose a president whenever the right 
 of choice shall devolve upon them, before the fourth 
 day of March next following, then the vice-president 
 shall act as president, as in the case of the death or 
 other constitutional disability of the president. (a) 
 
 SECTION 2. QUALIFICATIONS OF THE PRESIDENT. 
 
 62. No person except a natural born citizen, or a 
 citizen of the United States at the time of the adoption 
 of this constitution, shall be eligible to the office of 
 president; neither shall any person be eligible to that 
 office who shall not have attained the age of thirty- 
 five years, and been fourteen years a resident within 
 the United States. (6) 
 
 (a) Const. Am. art. 12, n. 1. (J) Const, art. 2, s. 1, n. 5. 
 
28 GOVERNMENT OF THE UNITED STATES. 
 
 No. 63. Preliminary Book, part 3, tit. 3, chap. 2, sec. 3, 4, 5. No, 65. 
 
 SECTION 3. THE TERM Oi" HIS OFFICE. 
 
 63. The president shall hold hLs office for the term 
 of four years. (a) 
 
 His duties commence the fourth day of March next 
 after his election. (&) 
 
 SECTION 4. TIME OF HIS ELECTION. 
 
 64. The congress may determine the time of choos- 
 ing the electors, and the day on which they shall give 
 their votes ; which shall be the same throughout the 
 United States. (c) 
 
 By virtue of this clause in the constitution, congress 
 passed an act declaring that the electors shall be ap- 
 pointed in each state within thirty-four days preceding 
 the first Wednesday in December, in every fourth year 
 succeeding the last election of president, according to 
 the apportionment of the representatives and senators 
 then existing. The electors chosen are required to 
 meet and give their votes on the said first Wednesday 
 of December, at such place in each state as shall be 
 directed by the legislature thereof. ((^) 
 
 In case of the removal of the president from office, 
 or of his death, resignation, or inability to 'discharge 
 the powers and duties of said office, the same shall de- 
 volve on the vice-president; and the congress may by 
 law provide for the case of removal, death, resignation, 
 or inabiUty, both of the president and vice-president, 
 declaring what officer shall then act as president, and 
 such officer shall act accordingly, until the disability 
 be removed, or a president shall be elected, (e) 
 
 SECTION 5. OF THE POWERS AND DUTIES OF THE PRESIDENT. 
 
 65. The powers and duties of the president may be 
 
 
 a) Const, art. 2, s. 1, n. 1. (d) Act of 1st March, 1792, c. 8. 
 
 b) Act of 1st of March, 1792, ch. 8. (e) Const, art. 2, s. 1, n. 6. 
 
 c) Const, art. 2, s. 1, n. 4. 
 
OF THE PRESIDENT. 29 
 
 No. 66. Preliminary Book, part 3, tit. 3, chap. 2, sec. 5, § 1. No. 66. 
 
 conveniently classed into those cases where, 1, he 
 exercises the power alone ; 2, he exercises it in con- 
 nection with congress ; and 3, he exercises it in con- 
 currence with the senate. 
 
 § 1. — Where he exercises power alone. 
 
 66. He is commander-in-chief of the army of the 
 United States, and of the militia of the several states 
 when called into the actual service of the United 
 States. (a) 
 
 He has power to grant reprieves and pardons for 
 offences against the United States, except in cases of 
 impeachment. (&j 
 
 He may appoint all officers of the United States 
 whose appointments are not otherwise provided for by 
 the constitution, and which shall be established by 
 law ; but the congress may by law vest the appoint- 
 ment of such inferior officers as they think proper, in 
 the president alone, in the courts of law, or in the 
 heads of departments. (c) 
 
 He shall have power to fill up all vacancies that 
 may happen during the recess of the senate, by grant- 
 ing commissions which shall expire at the end of their 
 next session. ((/) 
 
 He may require the opinion, in writing, of the prin- 
 cipal officers in each of the executive departments, 
 upon any subject relative to the duties of their respec- 
 tive offices, (e) 
 
 He shall, from time to time, give to the congress 
 information of the state of the Union, and recommend 
 to their consideration such measures as he shall judge 
 necessary and expedient ; he may, on extraordinary 
 occasions, convene both houses, or either of them, and 
 in case of disagreement between them, with respect to 
 the time of adjournment, he may adjourn them to such 
 
 (a) Const, art. 2, s. 3, n. 1. {d) Const, art. 2, s. 2, n. 3 
 
 (b) Ibid. (e) lb. art. 2, s. 2, n. 1. 
 
 (c) lb. art. 2, s. 2, n. 2. 
 
30 GOVERNMENT OF THE UNITED STATES. 
 
 No. 67. Preliminary Book, part 3, tit. 3, chap. 2, sec. 5, § 2, 3, art. 1, 2. No. 70. 
 
 time as he shall think proper; he shall receive ambas- 
 sadors, and other public ministers ; he shall take care 
 that the laws be faithfully executed ; and shall com- 
 mi.s.sion all the officers of the United States. («) 
 
 § 2. — Of the power the President exercises in connection -with 
 
 Congress. 
 
 67. The president has a negative on all laws passed 
 by congress. This will be considered in another place. 
 
 § 3. — Of the power he exercises in concurrence with the Senate. 
 
 68. This relates either to the treaty-making power, 
 or to appointment to office. 
 
 Article 1. — Of the Treaty-making Power. 
 
 69. In making treaties with foreign nations the 
 president acts, in the first place, independently and 
 alone. When made abroad, the treaty is made through 
 the medium of our ministers to foreign courts, under 
 the instructions of the president. TMien made in this 
 country, the secretary of state takes the place of our 
 minister abroad, and, under like instructions. Until 
 the treaty has been agreed upon, the senate is not con- 
 sulted. When it has been agreed upon, it is submitted 
 to the senate for their concurrence. Here it is either 
 approved of, rejected, or amended. When amend- 
 ments take place, if the president approves of the 
 same, the treaty again becomes the subject of negotia- 
 tion with the foreign power, and after it has been 
 modified it is again brought before the senate, for its 
 final ratification. 
 
 Article 2. — Of the Appointing Power. 
 
 70. The president shall have power, by and with 
 the advice and consent of the senate, to make treaties, 
 provided two-thirds of the senators present concur; 
 
 (a) Const, art. 2, s. 3. 
 
OF THE JUDICIAL POWER. 31 
 
 No. 71. Preliminary Book, parts, tit. 3, chap. 3. No. 72. 
 
 and lie shall nominate, and by and with the advice and 
 consent of the senate, shall appoint ambassadors, other 
 public ministers and consuls, judges of the supreme 
 court, and all other officers of the United States, whose 
 appointments are not therein otherwise provided for, 
 and which shall be established by law. But the con- 
 gress may, by law, vest the appointment of such in- 
 ferior officers as they think proper, in the president 
 alone, in the courts of law, or in the heads of depart- 
 ments. 
 
 The president shall have power to fill up all vacan- 
 cies that may happen during the recess of the senate, 
 by granting commissions which shall expire at the end 
 of their next session. (a) 
 
 SECTION 6. OP THE VICE-PEESIDENT. 
 
 71. The vice-president is chosen by the same elec- 
 tors, and at the same time, that the president is 
 elected. The person having the greatest number of 
 votes as vice-president, shall be the vice-president, if 
 such number be a majority of the whole number of 
 electors appointed ; and if no person have a majority, 
 then from the two highest numbers on the list, the 
 senate shall choose the vice-president ; a quorum for 
 the purpose shall consist of two-thirds of the whole 
 number of senators, and a majority of the whole num- 
 ber shall be necessary to a choice. (6) 
 
 But no person constitutionally ineligible to the office 
 of president, shall be eligible to that of vice-president 
 of the United States. (c) 
 
 CHAPTER in.— OF THE JUDICIAL POWER. 
 
 72. This will be considered hereafter. 
 
 (a) Const, art. 2, s. 2, n. 2 (c) Const. Am. art. 12, n. 3. 
 
 (J) Const. Amend, art. 12, n. 3. 
 
32 THE STATE GOVERNMENTS. 
 
 No. 73. Preliminary Book, part 4. No. 75. 
 
 PART IV.— OF THE STATE GOVERNMENTS. 
 
 73. The several states of the Union have power to 
 legislate on all matters within their territorial jurisdic- 
 tion, except where the power has been delegated to 
 congress, or they are forbidden by the constitution of 
 the United States, or of their own state. 
 
 74. By the 10th section of the Constitution of the 
 United States it is provided: 
 
 1 . No state shall enter into any treaty, alliance, or 
 confederation ; grant letters of marque and reprisal ; 
 coin money ; emit bills of credit ; make any thing but 
 gold and silver coin a tender in payment of debts; pass 
 any bill of attainder, ex post facto law, or law impair- 
 ing the obligation of contracts ; or grant any title of 
 nobihty. 
 
 2. No state shall, without the consent of the con- 
 gress, lay any imposts or duties on imports or exports, 
 except what may be absolutely necessary for exe- 
 cuting its inspection laws ; and the net produce of all 
 duties and imposts laid by any state on imports or ex- 
 ports, shall be for the use of the treasury of the United 
 States ; and all such laws shall be subject to the revi- 
 sion and control of the congress. No state shall, 
 without the consent of congress, lay any duty on ton- 
 nage, 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 invaded, or in such imminent danger as will 
 not admit of delay. 
 
 75. The governments of the several states are formed 
 very much upon the model of the general government. 
 They are all of a repubhcan form. The constitution 
 of the United States provides that " the United States 
 shall guarantee to every state in this Union a republi- 
 can form of government, and shall protect each of 
 them against invasion, and on application of the legis- 
 
PASSAGE AND EFFECT OF LAWS. 33 
 
 No. 76. Preliminary Book, part 5, tit. 1. No. 79. 
 
 lature, or of the executive, (when the legislature 
 cannot be convened,) against domestic violence. (a) 
 
 76. The executive power of each state is vested in a 
 governor, elected either by the people or the legisla- 
 ture, who is entrusted with more or less power, and 
 the duration of whose office varies generally from one 
 to three years. 
 
 77. The legislative power is vested in a general as- 
 sembly, composed of two branches, generally known 
 by the names of senate and house of representatives. 
 
 78 . The judicial power is in general vested in justices 
 of the peace, courts of common pleas, courts of equity, 
 criminal courts, and a supreme court. These have 
 jurisdiction within the limits of their respective states, 
 and over subject matters made cognizable by the state 
 laws. 
 
 PART v.— OF THE PASSAGE, PUBLICATION, AND 
 EFFECT OF LAWS. 
 
 TITLE I.— OF THE PASSAGE OF LAWS. 
 
 79. The ordinary mode of passing laws is briefly 
 this : one day's notice of a motion for leave to bring in 
 a bill, in cases of a general nature, is required ; every 
 bill must have three readings before it is passed, and 
 these readings must be on different days ; and no bill 
 can be committed and amended until it has been twice 
 read. In the house of representatives, bills, after being 
 twice read, are committed to a committee of the whole 
 house, when a chairman is appointed by the speaker 
 to preside over the committee; the speaker leaves the 
 chair, and takes a part in the debate as an ordinary 
 member. 
 
 When a bill has passed one house, it is transmitted 
 to the other, and goes through a similar form, though 
 
 (a) Const, art. 4, s. 4, 
 
 Vol. I. 3 
 
34 PASSAGE AND EFFECT OF LAWS. 
 
 No. 80. Preliminary Book, part 5, tit. 2. No. 80. 
 
 in the senate there is less formality, and bills are often 
 committed to a select committee, chosen by ballot. If 
 a bill be altered or amended in the house to which it 
 is transmitted, it is then returned to the house in 
 which it originated, and if the two houses cannot agree, 
 they appoint a committee to confer on the subject. 
 
 When a bill is engrossed, and has received the sanc- 
 tion of both houses, it is" sent to the president for his 
 approbation. If he approves of the bill, he signs it. 
 If he does not, it is returned, with his objections, to 
 the house in which it originated, and that house enters 
 the objections at large on their journal, and proceeds 
 to re-consider it. If, after such re-consideration, two- 
 thirds of the house agree to pass the bUl, it is sent, 
 together with the objections, to the other house, by 
 which it is likewise re-considered, and if approved by 
 two-thirds of that house, it becomes a law. But in aU 
 such cases, the votes of both houses are determined by 
 yeas and nays ; and the names of the persons voting 
 for and against the bill, are to be entered on the jour- 
 nal of each house respectively. 
 
 If any bill shall not be returned by the president 
 within ten days (Sundays excepted) after it shall have 
 been presented to him, the same shall be a law, in like 
 manner as if he had signed it, unless the congress, by 
 their adjournment, prevent its return; in which case it 
 fihall not be a law. 
 
 TITLE n.— OF THE PROMULGATION AND PUBLICA- 
 TION OF THE LAWS. 
 
 80. In order to make a law binding it must be made 
 known ; to punish a man for the violation of a law he 
 could not know, would be tyrannical, and yet in some 
 cases this has happened. (a) In cases of this kind a 
 pardon is easily obtained. 
 
 The order given by the executive to cause a law to 
 
 (a) The Aon, 1 Gallis. 62 ; Branch Bank of Mobile v. Murphy, 8 Ala. 119. 
 
SANCTION OF THE LAW. 35 
 
 No. 81. Preliminary Book, part 5, tit. 3. No. 81. 
 
 be executed and to make it public, is called its promul- 
 gation. In the United States this, in general, is not 
 required. 
 
 The publication of a law is the act of making it pub- 
 lic. The passage of a law is a sufficient publication of 
 it to make it obligatory, and unless another time is 
 fixed in the statute, it commences its binding opera- 
 tion from the time of its date. (a) 
 
 In order to make known the laws of congress, that 
 body by an act has provided that the laws should be 
 published in the newspapers in every part of the 
 Union. 
 
 TITLE in.— OP THE EFFECT AND SANCTION OF THE 
 
 LAW. 
 
 81. Having shown what is the law, how it is made, 
 how it is published and how it becomes binding, it will 
 be proper now to point out its effects, who are bound 
 by it, and who are charged with its execution. 
 
 The law commands, forbids, permits and punishes : 
 leges virtus hac est imperare, vetare, permittere, punire.(b) 
 
 The sanction of the law, then, is the punishment or 
 reward, the good or evil which follow its observance, 
 or the violation of its precepts, or the doing what it 
 forbids. In another sense, the sanction of the law is 
 that part which imposes a punishment, or bestows a 
 recompense or reward, for a certain action. 
 
 The sanction of natural law is to be found, first, in 
 religion, which teaches the immortality of the soul, and 
 a future state of rewards and punishments ; secondly, 
 in the public esteem, which a good man enjoys; 
 thirdly, in the delicious sentiment of a pure conscience ; 
 in the happiness which is enjoyed internally by the 
 man who has nothing to reproach himself with, and 
 
 (a) Matthews v. Zane, 7 Wheat. 164 ; The Ann, 1 Gallis, 62 ; Smets v. 
 Weathersbee, R. M. Oharl. 537 ; The State v. Click, 2 Ala. 26 ; Goodsell v. 
 Boynton, 1 Scam. 555 ; Branch Bank of Mobile v. Murphy, 8 Ala. 119. 
 
 {b) Dig. 1, 3, 7. 
 
36 PASSAGE AND EFFECT OF LAWS. 
 
 No. 82, Preliminary Book, part 5, tit. 3. No. 82, 
 
 wlio has observed the dictates of the law ; in the re- 
 morse which is felt by him who has violated all laws, 
 and whose bosom is lacerated with vain regrets, and 
 with pain from which he cannot fly; in the infamy and 
 shame with which he is covered even in his own eyes, 
 although he may have succeeded in concealing his tur- 
 pitude from the public view. 
 
 Human laws give a stronger sanction to the precepts 
 of natural law, as well as to the positive precepts 
 which they have added to them. For this purpose 
 they authorize the employment of the pubHc force to 
 compel every citizen to obey them. And they have 
 carried their foresight further, by imposing punish- 
 ments against their violators, and these are propor- 
 tioned to the importance of each crime or misdemeanor. 
 
 The reparation in damages caused by an action for- 
 bidden in law, is also a kind of sanction. 
 
 Not unfrequently a special sanction is provided for 
 in the law, which declares acts null which are con- 
 trary to its precepts or prohibitions. But all acts are 
 not null which are forbidden by law. No system of 
 legislation can, perhaps, be found in which all such 
 acts are void. This would, in many cases, produce 
 injustice, and the distinction has been made between 
 those statutes which provide that contracts violating 
 them shall be void, and those which do not so 
 direct, (a) 
 
 For example, a clergyman is forbidden to marry 
 minors; he marries them, and by that act subjects him- 
 self to a penalty ; but unless the marriage be declared 
 void by the statute, it is valid. 
 
 82. The law, as before observed, commands and 
 forbids. The principal and direct effect of a command 
 or prohibition is to bind those to whom the law appHes. 
 Every obligation to obey, therefore, presumes a law 
 
 (a) See Mabin v. Coulon, 4 Ball. 298 : Biddis v. James, 6 Birm. 321 ; 
 Seidenbender v. Charles, 4 S. & K. 159. This subject is more fully inves- 
 tigated hereafter. 
 
ADVANTAGES MAY BE RENOUNCED. 37 
 
 No. 83. Preliminary Book, parts, tit. 4. No. 83. 
 
 which commands ; and every law produces a binding 
 obligation. 
 
 An obligation is a moral necessity to perform actions 
 commanded by the law, or to abstain from actions for- 
 bidden by it, and to suffer those which are permitted. 
 
 No right can exist in favor of one person, unless 
 there is imposed a duty on another. If I have the 
 right to go over your field, I can have it only by virtue 
 of some law, or what comes to the same thing, by 
 virtue of an agreement sanctioned by law. It is your 
 duty to let me pass through your field; your are 
 obliged to permit me to do so. 
 
 Thus law, obhgation, right and duty, are correlative 
 terms. A correlative term is one which designates 
 things which cannot exist one without the other ; for 
 example, father and son, etc. 
 
 The obligation which arises from the law is not a 
 physical or absolute constraint. The law binds by the 
 consideration of the punishments or rewards annexed 
 to the infractions of its prohibitions, or to the obser- 
 vance of its precepts. 
 
 TITLE IV.— WHAT ADVANTAGES OF THE LAW AN 
 INDIVIDUAL MAY KBNOUNCE. 
 
 83. Laws have for their principal object to regulate 
 the rights of citizens with each other, to declare what 
 one may require to be done and what another must 
 perform. As every one is free to renounce his rights, 
 it follows that every citizen may renounce those pro- 
 visions of law which are made in his favor, and which 
 interest him only. 
 
 But as no man can control the rights of another, or 
 what concerns the public, he cannot, by his agree- 
 ment, renounce those provisions of law which concern 
 public order or good morals. 
 
 The rule that a man may renounce the advantages 
 which the law gives him, is subject to many excep- 
 tions. One may renounce an acquired right; for 
 
38 PASSAGE AND EFFECT OF LAWS. 
 
 No. 84. Preliminary Book, part 5. tit. 5, 6. No. 85. 
 
 example, the right of being an heir after the estate 
 is cast upon him. But he cannot always renounce 
 future advantages to ^q future effect of a law, although 
 its object may be to regulate the rights of individuals 
 only. 
 
 The faculty of making a will may be given as an 
 example. It is introduced for the benefit of indivi- 
 duals only ; so is the right to plead the act of limita- 
 tions ; yet no man can deprive himself of the right to 
 make a will, or to plead the act of limitations, before 
 the right to plead it has been acquired. 
 
 The rule, then, that an individual may renounce a 
 right given him by law, is subject to several excep- 
 tions : 1, whenever the law itself forbids the renunci- 
 ation of such right ; 2, whenever it is clear that it is 
 positively prohibited ; 3, whenever the provisions of 
 the act are founded on some political or public cause, 
 or concern the interest of a third person. 
 
 TITLE v.— OF THE PEESONS BOUND BY THE LAW. 
 
 84. The sovereign authority can extend only over 
 those who are stibject to it ; it cannot, therefore, regu- 
 late the rights of foreigners. But if they come within 
 its territory, either to reside or to travel, they are con- 
 sidered as submitting themselves to the authority of 
 the laws of the country, and they are bound by them. 
 This is perfectly reasonable, for during their stay in 
 the country they are protected by its laws. 
 
 TITLE VI.— OF THE APPLICATION OF THE LAW, AND 
 BY WHOM IT IS TO BE APPLIED. 
 
 85. Having examined the principal effects of the 
 law, and the persons who are bound by it, the con- 
 sideration of the persons who are to apply it, and how 
 it is to be applied, remains to be examined. 
 
 We have seen that the executive and the legislative 
 powers are separated from the judicial. This power 
 is vested by the constitution and laws of the United 
 
RULES OF INTERPRETATION. 39 
 
 No. 86. Preliminary Book, part 5, tit. 7, chap. 1. No. 86. 
 
 States in the judiciary of the general government; and 
 by the constitution and laws of each state in what are 
 called the state courts. The examination of the juris- 
 diction and powers of the several courts will be de- 
 ferred till we come to consider the remedies which the 
 law has provided for the establishment of right and 
 the repression of wrong. 
 
 TITLE VII.— OF THE POWEE TO INTERPRET THE 
 LAW. 
 
 CHAPTER I.— GE^^ERAL RULES OF INTERPRETATION. 
 
 86. The judges are bound to interpret or construe 
 the law with fidelity and skill ; they are required to 
 judge according to law, not to judge the law. When 
 the law is doubtful or ambiguous they are bound to 
 declare what it is, and they cannot refuse to give an 
 interpretation because it is obscure. 
 
 By interpretation is meant the judicial exposition of 
 the meaning of the law ; or it is the collection of its 
 meaning out of signs the most probable. (a) 
 
 Construction has nearly the same meaning as inter- 
 pretation. 
 
 In the supreme court of the United States the rule 
 which has been uniformly observed "in construing 
 statutes, is to adopt the construction made by the courts 
 of the country by whose legislature the statute was 
 enacted. This rule may be susceptible of some modi- 
 fication when applied to British statutes which are 
 adopted in any of these states. By adopting them, 
 they become our own, as entirely as if they had been 
 enacted by the legislature of the state." 
 
 The received construction, in England, at the time 
 they were admitted to operate in this country — indeed, 
 to the time of our separation from the British empire 
 — ^may very properly be considered as accompanying 
 the statutes themselves, and forming an integral part 
 
 (a) 1 Pow. on Contr. 370. 
 
40 PASSAGE AND EFFECT OF. LAWS. 
 
 No. 87. Preliminary j3ook, part 5, tit. 7, chap. 2, sec. 1. No, 88. 
 
 of them. But, however we may respect the subse- 
 quent decisions, (and certainly they are entitled to 
 great respect,) we do not admit their absolute autho- 
 rity. If the English courts vary their construction of 
 a statute, which is common to the two countries, we 
 do not hold ourselves bound to fluctuate with them. (a) 
 
 CHAPTER n.— KINDS OF INTERPRETATION. 
 
 87. There are two kinds of construction; thehteral 
 or strict, and the liberal. 
 
 SECTION 1. THE LITERAL OK STRICT CONSTRUCTION. 
 
 88. The strict or literal interpretation of laws is ap- 
 pHed to penal statutes. It is a rule that penal statutes 
 must be construed strictly, but not against the mani- 
 fest intention of the legislature, or so as to produce an 
 absurdity. (6) 
 
 Penal statutes are to be construed strictly, so as to 
 bring the case within the definition of the law ; but 
 this rule is not so inflexible as to require that cases 
 which can be decided by ordinary interpretation shaU 
 be construed as not coming within the law.(c) 
 
 A question frequently arises as to what is a penal 
 statute. In general it is one which inflicts a punish- 
 ment for the violation of its provisions or commands. ((?) 
 But a statute for the prevention of fraud, for the sup- 
 pression of a public wrong, or to effect a public good, 
 is not, in a strict sense, penal, although it inflicts a 
 penalty. (e) And a statute, penal as to some of its 
 
 .i; 
 
 l,d\ Oathcartii. Robinson, 5 Pet. R. 280. 
 
 (b) Commonwealth v. Loving, 8 Pick. 370 ; Reed v. Davies, 8 Pick. 
 514 ; Crawford v. The State, Minor, 143 ; Butler v. Ricker, 6 Greenl. 268 ; 
 The Enterpnze, Paine, 32 ; U. States v. Wiltberger, 5 Wheat. 76 ; Dagget 
 V. The State, 4 Conn. 61 ; Sprague v. Birdsall, 2 Cowen, 419 ; The Mayor 
 V. Davis, 6 Watts & S. 269 ; United States v. Wigglesworth, 2 Story, 369. 
 
 (c) U. States 1). Wilson, Baldw. 78. 
 
 (d)\ Bl. Com. 88 ; Esp. on Penal Act. 1 ; Bosc. on Conv. h. t.; Sewell v. 
 Jones, 9 Pick. 412. 
 (e) Taylor v. U. States, 8 How. U. S. R. 197. 
 
KINDS OF INTERPRETATION. 41 
 
 No. 89. Preliminary Book, part 5, tit. 7, chap. 2, sec. 2. No. 90. 
 
 provisions, if it is generally beneficial, may be equita- 
 bly construed.(a) 
 
 Statutes in derogation of the common law are to be 
 construed strictly. (&) 
 
 SECTION 2. — OF THE LIBERAL CONSTRUCTION. 
 
 89. In civil cases, a liberal interpretation must be 
 adopted in order to discover the meaning of the law, 
 where it seems silent, and the courts are required to 
 give a judgment and state what was the intention of 
 the legislature ; they are then the speaking law, lex 
 loquens. 
 
 But this interpretation is not to be arbitrary, it 
 ought to be founded on equity, provided that equity 
 be directed by science ; for without this the judge 
 sliould tremble in his seat in the temple of justice, and 
 without this the mind will only wander in search of a 
 phantom of equity purely imaginary. 
 
 90. A number o^ rules have been adopted, the ob- 
 servance of which will enable the judge to discover the 
 intention of the legislature, and thus decide what the 
 law is. They are principally the following: 
 
 1. When the law is clear, it must not be eluded 
 under the pretext of grasping its intention. (c) Words 
 must be used in their usual and most known significa- 
 tion, unless they appear plainly to have been used in 
 another sense ;{d) and in the construction of an obscure 
 law, the most natural sense is to be preferred, or that 
 which is the least difficult of execution. (e) 
 
 2. To ascertain and fix the true sense of a law, we 
 must examine the context, and if it can be gathered 
 from a subsequent statute, in pari materia, this will 
 
 (a) Sickles v. Sharp, 13 John. 497. 
 
 (J) Melody v. Reab, 4 Mass. 471 ; Gibson v. Jenney, 15 Mass. 205 ; Lock 
 V. MiUer, 3 Stew. & Port. 13. 
 
 (c) Crocker v. Crane, 21 Wend. 211; Bartlet v. Morris, 9 Port. 266. 
 
 (d) Merchants' Bank v. Cook, 4 Pick. 405. 
 e) 1 Bl. Com. 60. 
 
42 PASSAGE AND EFFECT OF LAWS. 
 
 No. 90. Preliminary Book, part 5, tit. 7j chap. 3j sec. 2. No. 90, 
 
 amount to a legislative declaration of its meaning, and 
 will govern the construction of the first statute. (o) 
 And a mistake apparent in one part of a statute, may- 
 be corrected by another part.(&) 
 
 3. The construction of each law must be made in 
 relation to the subject matter of the statute. (c) 
 
 4. Statutes must be construed as to their efeds or 
 consequences, so that where words bear either none or 
 a very absurd signification, the intention ought to be 
 adopted. ((Z) 
 
 5. A statute should be construed by considering the 
 reason and spirit of the act. But this can only take 
 place when the plain import of the words is du- 
 bious, (e) 
 
 6. Mere failure of justice is not a sufiicient ground 
 for construing a statute against its clear meaning, so 
 as to give a court jurisdiction. (/) 
 
 7. A statute ought to be so construed, if possible, 
 so that every word shall have some force and effect,(g) 
 and that no clause, sentence or word, shall be super- 
 fluous, void, or insignificant. (A) 
 
 8. Statutes are to be construed prospectively, unless 
 the contrary intention of the legislature be clearly 
 expressed.(^) 
 
 9. The rules for construing statutes are the same in 
 equity that they are at law.(fe) 
 
 10. A posterior law shall be construed to re- 
 peal an anterior one, when they are inconsistent 
 
 (a) U. States v. Freeman, 3 How. IT. S. R. 556. 
 
 (J) Blanohard v. Sprague, 3 Sumn. 279. 
 
 (c) Ruggles V. Washington County, 3 Mis. 496 ; Ex parte Hall, 1 Pick. 
 261 ; Woodworth v. Paine, Breeze, 294 ; Jacob v. U. States, 1 Brock. 520. 
 
 (rf) Henry v. Tilson, 17 Verm. 479. 
 
 (e) Kilby Bank v. Petitioners, 23 Pick, 93 ; Opinion of the Justices, 22 
 Pick. 571. 
 
 (/) Pitman v. Flint, 10 Pick. 506. 
 
 (g) Opinion of the Justices 22 Pick. 571. 
 
 (h) Jones V. Dubois, 1 Harr. 285 ; Hutchen v. Niblo, 4 Blackf. 148. 
 
 (i) Hastings v. Lane, 3 Shepl. 134 ; Garret v. Doe, 1 Scam. 335 ; Guard 
 V. Rowan, 2 Scam. 499 ; Forsyth v. Mar bury, R. M. Charlt. 324. 
 
 (k) Talbot V. Simpson, Pet. 0. 0. Rep. 188. 
 
REPEAL OF LAWS. 43 
 
 No. 91. Preliminary Book, part 5, tit. 8, chap. 1. No. 93. 
 
 with each other. (a) Posteriora derogant prioribus is 
 the rule. 
 
 TITLE VIIL— OP THE KEPEAL OP LAWS. 
 CHAPTER I.— WHAT IS A REPEAL. 
 
 91. To repeal a law is to annul it and destroy all 
 its force and effect. In the civil law, the term used 
 for repeal is abrogation. It differs from derogation, 
 which is only a partial abrogation ; derogatur legi, cum 
 pars detrahitur; abrogatur legi, cUm prorsus toUitur.ih) 
 Laws are repealed by new laws, and they are dero- 
 gated from either by provisions in the new laws, or by 
 usage, which has acquired the force of law. 
 
 92. The repeal is either express or implied ; it is 
 express, when it is literally declared by the new law, 
 either in general terms, as where a provision declares 
 all laws contrary to the repealing act to be repealed, 
 or in special terms, when such and such laws, which 
 are named and identified, are repealed. (c) 
 
 93. It is implied, when the new law contains provi- 
 sions contrary to those of former laws, without ex- 
 pressly repealing them : posteriora derogant prioribus is 
 the maxim in such cases, as has been already ob- 
 served, (c?) though the law does not favor repeals by 
 implication, (e) 
 
 The rule posteriora derogant prioribus must, however, 
 be applied with great discretion; for as the laws ought 
 not to be changed, modified or repealed, except with 
 great consideration, the repeal of the old by the new 
 laws ought not to be presumed; there must be a for- 
 
 (a) Morris v. Delaware and Schuylkill Canal, 4 W. & S. 461. 
 (h) Dig. 50, 16, 102. 
 
 (c) The State v. Stinson, 5 Shepl. 154. 
 
 (d) Milne v. Huher, 3 McLean, 212. 
 
 (e) Snell v. Bridgewater, 24 Pick. 296; Bowen v. Lease, 5 Hill, 221 ; 
 Wyman v. Campbell, 6 Port. 219 ; Street v. Commonwealth, 6 W. & S. 
 209. 
 
44 PASSAGE AND EFFECT OF LAWS. 
 
 No. 94. Preliminary Book, part 5, tit. 8, chap. 2. No. 95, 
 
 mal conflict between the two laws, in order that the 
 old shall be impliedly repealed by the new. (a) 
 
 When the laws are in conflict only as to some 
 points, the new derogates from the old only as to 
 those points, and the remainder is in full force. 
 
 94. Usage and custom have also much force to con- 
 strue or abrogate old laws, and non user for a great 
 length of time will have the effect of a repeal. But 
 it must be a very strong case >vhich will have that 
 effect. (6) 
 
 CHAPTER n.— EFFECT OF A REPEAL OF A LAW. 
 
 95. Whenever rights have become vested by virtue 
 of a statute, which is afterwards repealed, such rights 
 are not affected by the repeal. (c) But inchoate rights, 
 generally, derived from a statute, are lost by its re- 
 peal, unless expressly excepted. (rf) 
 
 When a penal statute is repealed, a violation before 
 its repeal cannot be punished afterwards, for then there 
 is no law to authorize the punishment, (e) In general 
 there is an exception as to the extent of the repeal, 
 and the statute remains in force as to such violations. 
 
 Proceedings commenced under a statute are arrest- 
 ed by its repeal, because after that there is no law 
 authorizing them.(/) 
 
 At common law the repeal of a statute, which was 
 itself a repealing statute, revives the first. (g) But in 
 some states this rule has been changed by a legisla- 
 tive act. (A) 
 
 (a) Kinney v. Mallory, 3 Ala. 626 ; Bowen v. Lease, 5 Hill. 221 ; In the 
 matter of Brown, 21 Wend. 316 ; Comm. v. Cromly, 1 Ashm. 179 ; Dayiess 
 V. Fairbaim, 3 How. U. S. R. 636. 
 
 (b) Wright D. Crane, 13 S. & R. 452; Ruthf. Inst. B. 2, c. 6, s. 19; 
 Merl. Repert. Desuetude. 
 
 (c) Davis V. Minor, 1 How. Mis. 183 ; James v. Dubois, 1 Harr. 28S. 
 
 (d) Butler v. Palmer, 1 Hill, 324. 
 
 (e) Comm. v. Welsh, 2 Dana, 330 ; Road in Hatfield, 4 Teates, 392 ; 
 Anon. 1 W. C. C. 84 ; Atto v. Comm. 2 Virg. Cas. 382. 
 
 (/) North Canal Street Road, 10 Watts. 351. 
 
 (g) Directors v. Railroad Co. 7 W. & S. 236; Comm. v. Churchill, 2 
 Met. 118 ; Comm. v. Mott, 21 Pick. 492. 
 (h) Civ. Cod. Lo. art. 23. 
 
OF SEVERAL KINDS OF LAWS. 45 
 
 No. 96. Preliminary Book, parts, tit. 9, chap, 1. No. 98. 
 
 TITLE IX.— OF THE SEVEKAL KINDS OF LAWS. 
 
 96. Laws may be divided into four principal kinds, 
 namely, 1, Natural law ; 2, the Law of Nations ; 
 3, Public law ; 4, Private or civil law. 
 
 Having considered these general laws in another 
 place, (a) this title will be confined to the laws of 
 the United States and of the several states. When 
 considered as to their several kinds, laws are express 
 or tacit ; when as to their object, they are civil and 
 criminal, they relate to the law merchant, the muni- 
 cipal law, and the law martial ; when as to their du- 
 ration, they are immutable and arbitrary; when as to 
 their origin, they are national or domestic laws and 
 foreign laws ; when as to their extent, they extend 
 over the United States, over their territories, and over 
 ships. 
 
 97. Blackstone, Hale and others, have divided laws, 
 when considering the source whence they arose, into 
 lex scripta and lex non scripta. By the former they 
 designate the statute law, and by the latter the com- 
 mon law. (6) This division is not exact as applied to 
 American law. Our constitutions, treaties, orders or 
 rules of court, would come within the definition of lex 
 scripta as well as statutes ; and the common law is not 
 literally lex non scripta. 
 
 A preferable mode of dividing them has been 
 adopted. They are express, or made directly and ex- 
 pressly for the people by the legislative power ; and 
 tacit, when they receive their force from the general 
 adoption of them by the people. 
 
 CHAPTEE I.— or EXPRESS LAW. 
 
 98. The express laws are, first, the constitution of 
 the United States ; secondly, the treaties made with 
 foreign powers; thirdly, the acts of congress; fourthly, 
 the constitutions of the respective states ; fifthly, the 
 
 (a) Ante, n. 9, et seq. (l) 1 BI. Com. 63. 
 
46 PASSAGE AND EFFECT OF LAWS. 
 
 No. 99. Preliminary Book, part 5, tit. 9, chap. 1, sec. 1, 2j 3. No. 101. 
 
 laws of the several state legislatures ; sixthly, laws 
 made by inferior legislative bodies, such as the coun- 
 cils of the municipal corporations, and general rules 
 made by the courts. 
 
 SECTION 1. OF THE CONSTITUTION OF THE UNITED STATES. 
 
 99. The Constitution of the United States is an act of 
 the people themselves, made by their representatives 
 elected for that purpose. It is the supreme law of 
 the land and binding on all future legislatures, until it 
 shall be altered by the people in the manner provided 
 for in the instrument itself. 
 
 SECTION 2. OF TKEATIES. 
 
 100. Treaties constitutionally made are declared to 
 be the supreme law of the land, (a) A treaty is a 
 compact made between two or !more independent na- 
 tions, with a view to the public welfare. Treaties are 
 for a perpetuity, or for a considerable time. When 
 contracts between nations are performed by a single 
 act, and their execution is at an end at once, they are 
 not called treaties, but agreements, conventions or pac- 
 tions. 
 
 Treaties are made by the president and senate on 
 the part of the United States. (6) No state of the 
 Union can enter into a treaty with a foreign govern- 
 ment, or with another state. (c) 
 
 SECTION 3. OP STATUTES. 
 
 101. Acts and resolutions of congress, enacted con- 
 stitutionally, are of course binding. These are called 
 statutes, and they are of several kinds, namely, con- 
 stitutional and unconstitutional ; public and private ; 
 declaratory and remedial ; preceptive, prohibitive, per- 
 missive and penal; temporary and perpetual; affir- 
 mative and negative ; prospective and retrospective. 
 
 (a) United States v. Schooner Peggy, 1 Cranch, 103 ; Lessee of Gordon 
 V. Kerr, et al. 1 Wash. C. 0. 322. 
 
 (b) Ante, n. 51 ; Const, art. 2, s. 2, n. 2. 
 
 (c) Const, art. 1, s. 10, n. 1 and 2. 
 
OF SEVERAL KINDS OF LAWS. 47 
 
 No. 102. Preliminary Book, part 5, tit. 9, chap. 1, sec. 4, 5, 6. No. 106. 
 
 SECTION 4. OF CONSTITUTIONAL AND UNCONSTITUTIONAL 
 
 LAWS. 
 
 102. — 1. A constitutional law is one made by the 
 legislative power properly organized, according to the 
 requisitions of the constitution. Such a law is bind- 
 ing upon all the people, citizens and others, who are 
 within the territorial jurisdiction of the legislature. 
 
 103. — 2. An unconstitutional law is one made in con- 
 travention of the requisitions of the constitution, and 
 for that reason it is, ipso facto, void, because the con- 
 stitution has greater force than any law, it being the 
 supreme law of the land, as already observed. 
 
 The courts have the power, and it is their duty, 
 when the law is unconstitutional, to declare it to be 
 so ; but this is not done, except in a clear case, and, 
 as an additional guard against error, the supreme 
 court of the United States refuses to take up a case 
 involving a constitutional question, when the court is 
 not full. (a) 
 
 SECTION 5. — -OP PUBLIC AND PRIVATE STATUTES. 
 
 104. — 1. Public statutes are those of which the 
 judges will take notice without pleading. They are 
 of universal rule and regard the whole community. (6) 
 
 105. — 2. Private statutes are those which the judges 
 will not take notice of without pleading. They con- 
 cern only private persons and private concerns. (c) 
 But a private statute may become public by being so 
 declared by the legislature. (J) 
 
 SECTION 6. — OP DECLARATOEY AND REMEDIAL STATUTES. 
 
 106. — 1. A declaratory statute is one which is passed 
 
 {a) Mayor of New York v. Miln. 9 Pet. 85. 
 
 (b) Gorham v. Springfield, 8 ShepL 58 ; New Portland v. New Vine- 
 yards, 4 Shepl. 69; Pierce v. Kimbal, 9 Grefenl. 54; Case of Rogers, 2 
 Greenl. 303. 
 
 (c) 1 Bl. Com. 86. 
 
 (d) Brookyille Ins. Co. v. Records, 5 Blackf. 170 ; Bac. Ab. Statutes. 
 (F.) 
 
48 PASSAGE AND EFFECT OF LAWS. 
 
 No. 107. Preliminary Boolf, part 5, tit. 9, chap. 1. sec. 7, 8. No. 113. 
 
 to put an end to a doubt as to what the common law 
 is, and which declares what the law is and has been. (a) 
 
 107. — 2. A remedial statute is one which supphes 
 such defects, and abridges such superfluities in the com- 
 mon law, as may have been discovered. (6) This, is 
 done by enlarging or restraining the common, and 
 these remedial statutes are therefore called enlarging 
 statutes or restraining statutes. 
 
 The term remedial statute is also applied to one 
 which gives the party injured a remedy; in some re- 
 spects such statute is a penal law.(c) 
 
 SECTION 7. OP PRECEPTIVE, PROHIBITIVE, PERMISSIVE, AND 
 
 PENAL STATUTES. 
 
 108. — 1. When the statute commands certain ac- 
 tions, and regulates the forms and acts which ought to 
 accompany them, it is called a preceptive statute. 
 
 109. — 2. When it forbids all actions which disturb 
 the public repose, or injury to the rights of others, or 
 crimes and misdemeanors ; or when it forbids certain 
 acts in relation to the transmission of estates, the ca- 
 pacity of persons and other objects, it is a prohibitive 
 statute. 
 
 110. — 3. When it allows certain actions without 
 commanding them ; for example, when it allows any 
 one who is competent, to make a wiU; such a statute 
 is permissive. 
 
 111. — 4. Penal statutes are those which order or 
 prohibit a thing under a certain penalty. 
 
 SECTION 8. OF TEMPORARY AND PERPETUAL STATUTES. 
 
 112. — 1. A temporary statute is one which is hmited 
 ia its duration at the time of its enactment. It con- 
 tinues in force until the time of its hmitation has 
 expired, unless sooner repealed. 
 
 113. — 2. A perpetual statute is one for the con- 
 tinuance of which there is no hmited time, although 
 
 (a) 1 BI. Com. 86. (I) Ibid. (c) Esp. Pen. Act. 1. 
 
OF SEVERAL KINDS OF LAWS. 49 
 
 No. 114. Preliminary Book, part 5, tit. 9, sec. 9, 10. No. 117. 
 
 it be not expressly declared to be so. If, however, a 
 statute which does not itself contain any limitation, is 
 to be governed by another which is temporary only, 
 the former will also be temporary and dependent upon 
 the existence of the latter, (a) 
 
 SECTION 9. OP AFFIRMATIVE AND NEGATIVE STATUTES. 
 
 114. — 1. An affirmative statute is one which is 
 enacted in aflBrmative terms ; such statute does not 
 take away the common law. If, for example, a 
 statute without negative words, declares that when 
 certain requisites shall have been complied with, deeds 
 shall have in evidence a certain effect, this does not 
 prevent their being used in evidence, though the re- 
 quisites have not been complied with, in the same 
 manner they might have been before the statute was 
 passed. (&) 
 
 115. — 2. A negative statute is one expressed in ne- 
 gative terms, and so controls the common law, that it 
 has no force in opposition to the statute. (c) 
 
 SECTION 10. OF PROSPECTIVE AND RETROSPECTIVE STATUTES. 
 
 116. — 1. A prospective la,w is one which regulates 
 the future, and is the only one which can be just, for 
 no man can conform himself to the law which is yet 
 unknown to him. 
 
 117. — 2. A retrospective statute is one which is made 
 to operate upon some subject, contract or crime, which 
 existed before its enactment. 
 
 These laws are generally unjust, and are, to a cer- 
 tain extent, forbidden by that article in the Constitu- 
 tion of the United States which prohibits the passage 
 of ex post facto laws, or laws impairing the obligation 
 of contracts. 
 
 (a) Bac. Ab. Statutes, (D.) 
 
 (b) Jackson v. Brady, 2 Gain. R. 169. 
 
 (c) Bro. Pari., pi. 72; Bac. Ab. Statutes, (G.) 
 
 Vol. I. 4 
 
50 PASSAGE AND EFFECT OF LAWS. 
 
 No. 118. Preliminary Sook, part 5, tit. 9, chap. 2, sec. 1. No. 121. 
 
 An ex post facto law is one which renders an act 
 punishable in a manner in which it was not punishable 
 when it was committed, (a) This prohibition applies 
 only to crimes. (6) 
 
 The right to pass retrospective laws, subject to the 
 exceptions mentioned, exists in the several states, if 
 not forbidden by their own constitutions. (c) And in- 
 stances are to be found where the legislature have set 
 aside a decree of a court,((Z) and opened a judgment. (e) 
 
 SECTION 11. OF CONSTITUTIONS AND LAWS OF THE STATES. 
 
 118. iThe constitution and laws of the respective 
 states, if not in conflict with the constitution of the 
 United States, are of binding force iu the states re- 
 spectively. 
 
 SECTION 12. OF LAWS SIADE BY INFEEIOE LEGISLAnVE 
 
 BODIES. 
 
 119. Laws made by lawful inferior legislative bo- 
 dies, usually known by the name of ordinances, have 
 full force within their respective jurisdictions. Such 
 are the ordinances of a municipal corporation. And 
 general rules and orders of court, when not violating 
 the constitution or laws, have the effect of laws in 
 such courts. 
 
 CHAPTER n.— OF THE TACIT LAWS. 
 
 120. The tacit laws, which derive their authority 
 from the common consent of the people, without any 
 legislative enactment, may be subdivided as follows: 
 
 SECTION 1. THE COilMON LAW. 
 
 121. The common law is a system of rules which 
 have been used by the universal consent and imme- 
 
 (a) Fletcher v. Peck, 6 Cranch, 138. 
 {b) Story, Const. ^ 1339. 
 c) Hess V. Werts, 4 S. & R., 364. 
 
 (d) Calder v. Bull, 3 Ball. 386. 
 
 (e) Braddee v. Brownfleld, 2 W. & S. 271. 
 
OF THE TACIT LAWS. 51 
 
 No. 121. Preliminary Book, parts, tit. 9, chap. 2, sec. 1. No. 121. 
 
 morial practice of the people, without receiving the 
 express authority of the legislative power. It is de- 
 rived principally from two sources, the common law 
 of England, and the practice and decisions of our own 
 courts. 1^0 general rule has heen adopted to ascertain 
 what part of the English common law is valid and 
 binding. To run the line of distinction is a subject 
 of embarrassment to the courts, and the want of it 
 a great perplexity to the student, (a) 
 
 It is generally binding where it has not been super- 
 seded by the Constitution of the United States, or of 
 the several states, or by their legislative enactments, 
 or varied by custom, and when it is founded in reason, 
 and is consonant to the genius and manners of the 
 people. (&) Into the common law have been grafted 
 many principles derived from other systems. 
 
 Customs form a part of the common law. A custom 
 is a usage which has acquired the force of law. It 
 derives its binding authority from the tacit consent of 
 the legislature and the people; it follows, therefore, that 
 there can be no custom in relation to a matter regu- 
 lated by statute. Law cannot be established or abro- 
 gated, except by the sovereign will ; but this will may 
 be expressed, or implied or presumed, and whether it 
 manifests itself by words or by acts is of little conse- 
 quence. 
 
 To make a good custom, it must be public, peaceable, 
 uniform, general, continued, reasonable and certain, 
 and it must have continued for a " time whereof the 
 memory of man runneth not to the contrary." It 
 then acquires the force of law. 
 
 Customs are general or particular. 1 . By general 
 custom is meant the common law itself, by which pro- 
 ceedings and determinations in court are guided. 
 2. Particular customs are those which affect the inhabi- 
 tants of some particular districts only. 
 
 {a) Kirby R. Pref. 
 
 (b) 1 Gallis. 20 ; Bains v. The Schooner James and Catherine, Bald. 554 ; 
 Parsons v. Bedford, 3 Pet. 446. 
 
52 PASSAGE AND EFFECT OF LAWS. 
 
 No. 122. Preliminary Book, part 5, tit. 9, chap. 3, sec. 1. No. 124. 
 
 SECTION 2. OF THE EOMAN LAW. 
 
 122. The Roman or civil law has furnished many 
 rules, and is constantly supplying the common law 
 with maxims which appear there without any acknow- 
 ledgment of their paternity. This law is the source 
 of wisdom, from which many of our judges have 
 drawn with unsparing hands, to adorn their judgments. 
 The proceedings of the courts of equity, and many of 
 the admirable distinctions which manifest their wis- 
 dom, flow from this source. And from this great 
 store-house the courts of admiralty . have borrowed 
 most of the laws which govern in admiralty cases. The 
 civil law is to be found in the Institutes of Justinian, 
 the Pandects, the Novels, and the Code, (a) and their 
 numerous commentators. 
 
 SECTION 3. OF THE CANON LAW. 
 
 123. The Canon law is a system of Roman ecclesi- 
 astical law, relative to such matters as the church of 
 Rome either has or pretends to have jurisdiction over. 
 Many of the rules of this system have been adopted 
 by the English ecclesiastical law, and they have been 
 incorporated into ours. Perhaps all, or at least a great 
 number of rules relating to administrations, wills, and 
 marriages, have been derived from the ecclesiastical 
 law. (6) 
 
 CHAPTER m.— OF THE OBJECTS OP THE LAW. 
 SECTION 1. OF CIVIL AND CRDHNAL LAWS. 
 
 124. Those laws which regulate civil matters be- 
 tween individuals, are called civil laws, in contradis- 
 tinction to those which regulate criminal matters, and 
 
 [a] Bouv. L. D. Law, Civil. By the phrase Civil Law, is meant the 
 whole body of Roman jurisprudence promulgated by Justinian and his suc- 
 cessors. This does not include the Jus Ante-Justinianeum, a part of which 
 was composed of the Laws of the Twelve Tables. Walker's Inquiry, 26, 
 27. 
 
 (*) 1 Bl. Com. 82 ; Bouv. L. D. Law, Canon. 
 
OF IMMUTABLE AND ARBITRARY LAWS. 53 
 
 No. 125. Preliminary Book, parts tit. 9, ohap. 4, sec. 1,2. No. 129. 
 
 provide for the repression and punishment of crimes, 
 which are called criminal laws. 
 
 SECTION 2. — OP LAW MERCHANT. 
 
 125. Those which form a system of customs ac- 
 knowledged and taken notice of by all commercial 
 nations, are called the law merchant. These customs 
 constitute a part of the general law of the land ; and, 
 being part of that law, their existence cannot be 
 proved by witnesses, but the judges are bound to take 
 notice of them ex officio. (a) 
 
 SECTION 3. OF MUNICIPAL LAW. 
 
 126. Municipal law. This has been already con- 
 sidered. (6) 
 
 SECTION 4. OF MARTIAL LAW. 
 
 127. Martial law. This is a code of laws establish- 
 ed for the government of the army and navy of the 
 United States. Its principal rules are to be found in 
 the Articles of War. The violations of this law are 
 to be tried by a court martial. A military commander 
 may, in extreme cases, declare a district of country or 
 a city under martial law ; but he has no right to sus- 
 pend the habeas corpus act.(c) 
 
 CHAPTER IV.— OF IMiVIUTABLE AND ARBITRARY LAWS. 
 SECTION 1. OF IMMUTABLE LAWS. 
 
 128. Those laws are immutable which are founded 
 on the laws of nature, and if ever altered by men, are 
 not binding, because the laws of God are superior to 
 all human laws. 
 
 SECTION 2. OF ARBITRARY LAWS. 
 
 129. An arbitrary law is one made by the legisla- 
 
 (a) See Beawes, Lex Merc; Cain. Lex Merc. Am.; Pardes. Dr. Com. 
 
 {h\ Ante, u. 11. 
 
 (c) Johnson v. Duncan, 3 Mart. Lo. R. 531. 
 
54 PASSAGE AND EFFECT OF LAWS. 
 
 No. L30. Preliminary Book, part 5, tit 9, chap. 5, 6, Bee. 1. No. 132, 
 
 tor, simply because he wills it, and is not founded in 
 the nature of things; such law, for example, as the 
 tariff law, which may be high or low. 
 
 CHAPTER v.— OF NATIONAL OK DOMESTIC AND FOREIGN 
 
 LAWS. 
 
 SECTION 1. — OF NATIONAL OR DOMESTIC LAWS. 
 
 130. Laws enacted by the government of the Uni- 
 ted States, duly constituted, are national or domestic 
 laws. These have a binding force over the whole 
 country, as will be shown in the next chapter. 
 
 The laws of each state are obligatory on all persons 
 in the state, but do not extend beyond their territorial 
 jurisdictions. Considered with regard to their con- 
 nection with each other, the states are foreign to one 
 another. 
 
 SECTION 2. OF FOREIGN LAWS. 
 
 131. The laws of a foreign country are said to be 
 foreign laws. They have no force to regulate any 
 thing out of their jurisdiction; but sometimes con- 
 tracts are made in a foreign country, which are broken 
 in this, and a remedy is sought here. In such case, 
 the matter in dispute is to be adjudicated in this coun- 
 try by the law of the country where the contract was 
 made, (a) 
 
 But there is an exception to the universal validity 
 of this rule. A foreign law, which violates the law of 
 nature, or the laws of this country, or which opposes 
 our national policy or institutions,(6) will not be en- 
 forced here. 
 
 CHAPTER VI.— OVER WHAT COUNTRIES AND PLACES THE 
 LAWS EXTEND. 
 
 SECTION 1. ^LAWS EXTEND OVER THE UNITED STATES. 
 
 132. The laws of congress extend over all the 
 
 (a) Story, Confl. of Laws, ^ 242. 
 
 (i) Story, Confl. of Laws, ^ 246 to § 260. 
 
EXTENT OF THE LAWS. 55 
 
 No. 133. Preliminary Book, part 5, tit. 9, chap. 6, sec. 2. No. X33. 
 
 United States. Not only those which originally form- 
 ed the federal compact, but also over those which have 
 been admitted since, whether they were formed out of 
 the original territory, or of that acquired from France, 
 by the treaty which ceded Louisiana to the United 
 States ; Florida from Spain ; or that which was an- 
 nexed by an agreement with the independent republic 
 of Texas, and which annexation has since been recog- 
 nized and sanctioned ; nor to the additional territory 
 which has been granted to the United States, by a 
 treaty made with Mexico. 
 
 How far the country extends into the open sea, is a 
 question not easily solved. Though the open sea be 
 not capable of being possessed as private property by 
 a nation, yet the waters on the coast to a certain ex- 
 tent are considered as belonging to the territory. By 
 the law of nations, this space is limited to the distance 
 to which a cannon can throw a ball, (a) though a claim 
 extending farther than this has been made by the 
 United States. (&) 
 
 The constitution provides that "new states may be 
 admitted by congress into this Union ; but no new 
 state shall be formed by the junction of two or more 
 states, or parts of states, without the consent of the 
 legislature of the states concerned, as well as of con- 
 gress. "(c) 
 
 These states, when once established, are considered 
 as upon an equal footing with the original states, and 
 the laws of the Union bind them. 
 
 SECTION 2. — OF THE TEREITOKIES OF THE UNITED STATES. 
 
 133. By territory is understood, in the sense in 
 which this word is used in the constitution, that por- 
 tion of the country subject, and belonging to the 
 
 (a) Vatt. liv. 1, c. 23, n. 289, in fin.; Ohit. Law of Nat. 113 ; Marten's 
 Law of Nat. B. 1, c. 8, s. 6; 3 Eob. Adm. R. 102 ; 3 Hagg. Adm. R. 257. 
 (b\ 1 Kent, Com. 29, 30. But see Serg. Const. Law, 219, 2d ed. 
 (c) Const, art. 4, s. 3, n. 1. 
 
56 . PASSAGE AND EFFECT OF LAWS. 
 
 No. 134. Preliminary Book, part 5, tit. 9, chap. 6, sec. 3. No. 135. 
 
 United States, which is not within the boundaries of 
 any of them, or within the District of Columbia. 
 
 The constitution directs that "the congress shall 
 have power to dispose of, and make all needful rules 
 and regulations, respecting the territory or other pro- 
 perty belonging to the United States. "(a) 
 
 Some of these territories are organized by act of 
 congress, and have a government to make their local 
 laws, generally having the powers which have been 
 retained by the states ; with courts established to ad- 
 minister justice. Others are not organized, and these 
 are regulated altogether by the laws of the Union. (&) 
 
 SECTION 3. JURISDICTION OVER SHIPS. 
 
 134. The laws of the United States extend over all 
 merchant ships owned by citizens of the United States, 
 and ships of war of the United States in the open sea 
 generally, or while lying in a foreign port or place, 
 and also over the crews.(c) 
 
 135. Having taken this general view of the laws, 
 the consideration of their application to persons, to 
 things, and to actions, will next be the subject of in- 
 quiry. For this purpose this work will be divided 
 into five books. In the first, we will treat of persons ; 
 in the second, of things ; injuries and wrongs will be 
 the subject of the third; in the fourth, will be explained 
 what remedies can be had at law for injuries; and 
 in the fifth, the nature and proceedings in equity. 
 
 '4 ' ' 
 
 (a) Const, art. 4, s. 3, n. 2. 
 (J) Story on the Const. ^ 1318. 
 
 (c) Act of Sept. 24, 1789, s. 9 and 11 ; Act of 1790, c. 9 ; Act of March 
 3, 1825, s. 5 ; 1 Kent, Com. 362, 363. 
 
57 
 
 BOOK I —OF PERSONS. 
 
 PART I.— OF NATURAL AND ARTIFICIAL PERSONS- 
 
 136. Persons are divided into natural and artificial. 
 These will be considered separately. 
 
 TITLE I.— OF NATURAL PERSONS. 
 CHAPTER I.— WHO IS A PERSON. 
 
 137. Men, women and children are called natural 
 persons ; but, in another sense, by person is meant 
 the part which a man plays in society. In law, man 
 and person are not exactly synonymous terms. (a) 
 Any human being is a man,(&) whether he be a mem- 
 ber of society or not, and whatever may be the rank 
 he holds, whatever may be his age, his sex, etc. A 
 person is a man considered according to the rank he 
 holds in society, with all the rights to which the place 
 he holds entitles him, and the duties which it im- 
 poses, (c) A slave, though a man, is in general con- 
 
 (a) Toullier has giyen us the derivation of the word person, which will 
 render sufficiently clear its true meaning. He says, 
 
 " The word person, in its primitive and natural sense, signifies the mask 
 with which actors, who played dramatic pieces in Rome and Greece, 
 covered their heads. These pieces were played in pubh'c places, and after- 
 ward in such vast amphitheatres, that it was impossible for a man to 
 make himself heard by all the spectators. Recourse was had to art ; the 
 head of each actor was enveloped with a mask, the figure of which repre- 
 sented the part he was to play, and it was so contrived that the opening 
 for the emission of his voice, made the sounds clearer, and more resound- 
 ing, vox personabat: whence the name persona was given to the instrument 
 or mask which facilitated the resounding of his voice. The name persona 
 was afterward applied to the part ilself, which the actor had undertaken 
 to play, because the face of the mask was adapted to the age, and to 
 the character of him who was considered as speaking, and sometimes 
 it was his own portrait. It is in this last sense of personage, or of the 
 part which an individual plays, that the word persona is employed in 
 jurisprudence, in opposition to the word man, homo. When we speak of 
 a person, we only consider the state of the man, the part he plays in 
 society, abstractedly, without considering the individual."— Toull. Dr. Civ. 
 Franfais, liv. 1, n. 168. 
 
 {b) Bouv. L. D. Man. (c) Toull. Dr. Civ. Pr. liv. 1, n. 168. 
 
58 OF PERSONS. 
 
 No. 138. Book 1, part 1, tit. 1, chap. 2. No. 139. 
 
 sidered not as a person, but a thing. For some purposes 
 he is considered a person. (a) 
 
 CHAPTER n.— OF THE STATE OR CONDITION OF A PERSON. 
 
 138. The word state or condition of persons, has 
 various acceptations. When we speak of a person, 
 we consider only the part a man plays in society, 
 without taking into view the individual. State and 
 person are then correlative terms. 
 
 If we inquire into its origin, the word state wUl be 
 found to come from the Latin stattis, which is derived 
 from the verb stare, sto, whence has been made statio, 
 which signifies the place where a person is located, 
 stat, to fulfil the obligations which are imposed upon 
 him. (6) 
 
 State, then, is that quahty which belongs to a per- 
 son in society, and which secures'to, and imposes upon 
 him, different rights and duties, in consequenc of the 
 differences of that quality. 
 
 139. Although all men come from the hands of 
 nature upon an equality, yet there are among them 
 marked natural differences. The distinctions of sex, 
 parentage, age, youth, etc., all come from nature. 
 
 To these natural quahties, the civil or municipal 
 laws have added distinctions which are purely civil 
 and arbitrary, founded on the manners of the people, 
 or the will of the legislature. Such are the dijSer- 
 ences which these laws have established between 
 citizens and aliens, between magistrates and private 
 
 (a) State v. Thackam, 1 Bay, R. 358. In the fourth article of the con- 
 stitution of the United States, the word person is used in the sense of 
 man ; " no person held to labor," evidently refers to slaves. 
 
 (b) At Rome, by state was understood the inscription of the name of an 
 individual on the registers, or census. The state was the same as caput, 
 head ; by capite censi was meant those who had declared to the censors 
 that they had nothing of their own, neither property nor posterity. They 
 could then be numbered only by their heads. None were inscribed on the 
 list or census except freemen, citizens, and heads of families. And thus 
 the word head, caput, si^ified simply a state of liberty, of citizenship, 
 and oi family. The slave, vho was deprived of all state, was said to have 
 no head : caput non habere. 
 
WHO IS A PERSON. 59 
 
 No. 140. Book 1, part 1, tit. 1, chap. 2. No. 144. 
 
 citizens or subjects; and between freemen and 
 slaves. 
 
 140. Although these latter distinctions are more 
 particularly subject to the civil and municipal law, 
 because to it they owe their origin, it nevertheless 
 extends its authority over the natural qualities, not to 
 destroy or weaken them, but to confirm them, and to 
 render them more inviolable by positive rules and by 
 certain maxims. 
 
 141. This union of the civil or municipal law with 
 the law of nature, form among men a third species of 
 differences which may be called mixed, because they 
 participate of both, and derive their principle from 
 nature and the perfection of the law; for example^ 
 infancy, or the privileges which belong to it, have 
 their foundation in the law of nature ; but the age, 
 and the term of these prerogatives, are determuied by 
 the civil or municipal law. 
 
 142. From these premises, it is easy to perceive 
 that three sorts of different quahties, which form the 
 state or condition of men, maybe distinguished: those 
 which are purely natural, those which are purely civil, 
 and those which are composed of natural and civil or 
 municipal law. 
 
 143. If we analyze what are the qualities which 
 compose the state of a person, we will find they have 
 a necessary or essential connection with pubhc or politi- 
 cal, or private right, and that they are either qualities 
 of state or distinctions of state, because they render the 
 party either able or unable to participate in the public 
 state or the private state. 
 
 144. — 1. Let us commence, for example, with public 
 or political right. It is a question as to his state, 
 which settles whether a man is a freeman or a slave, 
 a citizen or an alien; because if he is free and a citizen, 
 he is qualified to render service to his country in all 
 public stations or offices ; if, on the contrary, he is a 
 slave or an ahen, he is excluded by both of these 
 
60 OF PERSONS. 
 
 No. 145. Book 1, part 1, tit. 1, chap. 3. No. 148. 
 
 qualities from filling any functions which are connected 
 with public or political right, and from all advantages 
 which the law grants only to those who are entitled 
 to participate in them. 
 
 145. — 2. The rule is the same with regard to pri- 
 vate rights. The state of a person is confined to the 
 regulation of contracts or engagements and descents. 
 It is used to determine what connections the private 
 state of an individual, and his contracts or engage- 
 ments, or his rights to inherit by descent, have with 
 each other, and what renders men capable or incapable 
 of making contracts or taking by descent. 
 
 Thus, the state of majority renders a man capable 
 of entering into all sorts of obligations; that of infancy 
 prevents him from forming many : these quahties 
 must be classed among those which determine the state 
 of a person. 
 
 The quality of a legitimate or an illegitimate child, 
 renders him capable or incapable of taking by descent; 
 it is, therefore, the quality of the person, in this case, 
 which constitutes his state. 
 
 146 . The public state consists in a capacity founded 
 in nature, or the law, or arising from both, to partici- 
 pate in all offices, honors, and all other prerogatives, 
 which are the right of those who are considered mem- 
 bers of the nation. 
 
 147. The private state is a quality, which no agree- 
 ment can alone establish, but which is the efiect of 
 natural or civil law, or of both of them, and which 
 renders those who possess it capable or incapable of 
 certain kinds of conventions or agreements ; or even 
 of all agreements, and by which they are capable or 
 incapable of taking by descent. 
 
 CHAPTBE nr.— OF THE LOSS OF ONE'S STATE OR CONDITION. 
 
 148. Many changes take place in the state of a 
 person ; the principal of which are the following : 
 
 1. Civil death. By which a man loses his political 
 and civil rights. 
 
OF THE CLASSIFICATION OF PERSONS. 61 
 
 No. 149. Bookl, parti, tit. 1, chap.4, sec. 1,2, 5 1. No. 151. 
 
 2. Interdiction. By this is meant a legal restraint, 
 by the sentence of a competent tribunal, upon a per- 
 son incapable of managing his estate, because of men- 
 tal incapacity. 
 
 3. When a single woman marries she experiences a 
 change in her state ; she falls into the power of an- 
 other, and becomes incapable of making a contract 
 without the consent of her husband ; but when the 
 marriage is dissolved there is another change, by 
 which she is freed from the marital restraint. 
 
 CHAPTER IV.— OF THE OLASSIPICATON OF PERSONS. 
 SECTION 1. OF PUBLIC PEESONS. 
 
 149. In the United States public persons have but 
 few privileges more than private citizens ; these are 
 granted to them, not for their own advantage, but for 
 the public good : as for example, a congressman can- 
 not be arrested nor sued, in a civil case, while attending 
 to his duty in congress, because the public interest 
 requires his undivided attention there. Public persons 
 are magistrates of various grades, from the President 
 of the United States down to the constable. 
 
 SECTION 2. OF PRIVATE PERSONS. 
 
 150. All persons who do not fill official stations are 
 private persons. These will be considered in separate 
 classes. 
 
 § 1. — With regard to the sexes. 
 
 151. The physical difference between male and 
 female animals is called sex. In the human species 
 the male is called man, and the female woman. The 
 first difference which nature has established among 
 persons is that of the sexes : inter masculos et feminas. 
 
 Some human beings, whose sexual organs are some- 
 what imperfect, have acquired the name of hermaphro- 
 dites. They are adjudged to belong to that sex which 
 prevails. (ff) 
 
 (a) Co. Litt. 2, 7 ; Domat., Lois Civ. liv. 1. 1. 2, s. 1, u. 9 ; Dig. 1, 5, 10. 
 
62 OF PERSONS. 
 
 No. 152. Book 1, part 1, tit. 1, chap. 4, sec. 2, ^ 1. No. 154. 
 
 152. The condition of woman is, in many respects, 
 less advantageous than that of man. This difference 
 is owing in part to nature, and partly to our customs, 
 and to the positive institutions of society. 
 
 Let us examine the question between husband and 
 wife. By the natural law, the superior control in a 
 state of marriage belongs to the man rather than the 
 woman ; perfect equality is impossible, and, as the 
 marriage is a partnership between two persons, one 
 must have the controlling voice, when both cannot 
 agree. The preponderating voice belongs to the hus- 
 band rather than to the wife; he is stronger and more 
 courageous, he works to support the family of which 
 he is the head, and which he is bound to protect and 
 defend ; woman then must yield to him, whom nature 
 and the law have provided for her as a guide and pro- 
 tector. 
 
 This is the source of the prerogatives which the 
 husband has over the wife. Hence it follows, that the 
 wife cannot make any contracts binding upon herself, 
 without the express or implied authority of her husband, 
 nor make a will — ^the existence of a married woman 
 beings merged, by a fiction of law, in the being of her 
 husband. 
 
 153. Single women, when of full age, have all the 
 civil rights of men ; they may, therefore, enter into 
 contracts and engagements; make wills ; sue and be 
 sued; be trustees or guardians; they may be wit- 
 nesses, and for that purpose may attest all papers. 
 Among the civilians they may dispose of their pro- 
 perty and make contracts like men, but they cannot 
 be guardians nor attesting witnesses. (a) 
 
 154. In general, women possess no political power; 
 they cannot hold ofl&ce nor vote for officers. Instances 
 occur, however, of their being appointed post-mis- 
 tresses. 
 
 (a) 1 Toull. n. 187. 
 
OF THE CLASSIFICATION OF PERSONS. 63 
 
 No. 155, Book 1, part 1, til. 1, chap. 4, sec. 2, § 2, 3. No. 158. 
 
 § 2. — Of the difference between persons with regard to age. 
 
 155. The prerogatives granted to age, take their 
 rise in the law of nature. Nothing is better calculated 
 to support public morals than a perfect subordination 
 of the young to the aged. (a) The want of proper re- 
 gard and deference to old age has always been con- 
 sidered as one of the most strongly marked features of 
 depravation. 
 
 But, as it cannot be ascertained when each indivi- 
 dual has been so far developed as to act for himself, 
 the law has fixed an age at which all, who attain it, 
 are presumed to have their proper faculties. The time 
 fijxed by law, then, establishes a legal presumption of 
 legal capacity. 
 
 jlrt. 1. — ^s to males. 
 
 156. Before arriving at fourteen years, a male is 
 said not to be of discretion ; by the common law, at 
 that age he may consent to marriage, and choose a 
 guardian ; at twenty-one, he is of full age for all pri- 
 vate purposes, and he may then exercise his rights as 
 a citizen, by voting for public officers ; and, being a 
 citizen, he is eligible to all offices, unless otherwise 
 provided for in the constitution. At twenty-five, he 
 may be elected to congress ; at thirty, a senator of the 
 United States ; and at thirty-five, he may be elected 
 President of the United States, if otherwise properly 
 quahfied. 
 
 ^rt. 2. — ^s to females. 
 
 157. At twelve, a woman arrives at years of discre- 
 tion, and may consent to marriage ; at fourteen, she 
 may choose a guardian ; and at twenty-one, as in the 
 case of males, she is of full age, and may exercise all 
 the rights which are inherent to her sex. 
 
 § 3 — Of husband and wife, and parent and child. 
 
 158. The third difference between persons, is that 
 
 (a) Montesq. Esp. des Lois, liv. 5, c. 7. 
 
64 OF PERSONS. 
 
 No. 159. Book 1, part 1, tit. 1, chap. 4, sec. 2, ^ 4, art. 1. No. 161. 
 
 which results from the relations established between 
 husband and wife, and parent and child. This subject 
 will be considered in another place. 
 
 § 4. — Of citizens and aliens. 
 
 159. The fifth diflference between persons, exists 
 between citizens and aliens. These will be separately 
 considered. 
 
 Jlrt. 1. — Of citizens. 
 
 160. A citizen of the United States is one who is in 
 the enjoyment of all the rights to which the people 
 are entitled, and bound to fulfil the duties to which 
 they are subject ; this includes men, women and chil- 
 dren, (a) In a more limited sense, a citizen is one 
 who has a right to vote for public officers; for exam- 
 ple, representatives in congress, and who is qualified 
 to fill offices in the gift of the people. 
 
 Citizens are natives or naturalized. All persons 
 born in the United States are not citizens. The ex- 
 ceptions are, first, children of foreign ambassadors ; 
 secondly, Indians ; and thirdly, in general, persons of 
 color. (&) 
 
 161. A naturalized citizen is one who, born an alien, 
 has acquired the right of a citizen by complying with 
 the requisition of the naturalization laws. The prin- 
 cipal of which are, 
 
 1. That the applicant shall be an alien, and a free 
 white person. 
 
 2. That he shall have declared before some compe- 
 tent tribunal, on oath or affirmation, three years at 
 least before his admission, that it was, bona fide, his in- 
 tention to become a Citizen of the United States, and 
 
 (a) Amy v. Smith, 1 Litt. 334. 
 
 (J) Amy V. Smith, 1 Litt. 334 ; Grandall v. State, 10 Conn. 340. Per- 
 sons of color and Indians have some rights as citizens ; they cannot in any 
 sense be considered as aliens, nor can they be deprived of any of those 
 rights which belong to American citizens, of holding property, of obtaining 
 a patent for an invention, and the like ; but they are deprived in some 
 states of the right of voting for public officers, or of holding office. 
 
OF THE CLASSIFICATION OF PERSONS. 65 
 
 No. 161. Bookl, part 1, tit. 1, ehap. 4, sec.2, 5 4, ait. 1. No. 161. 
 
 to renounce forever all allegiance and fidelity to every 
 foreign prince, &c., and particularly, by name, the 
 prince, &c., whereof such alien may at the time be a 
 citizen or subject. But if such applicant has resided 
 and continued to reside in the United States between 
 the 14th day of April, 1802, and the 18th of June, 
 1812, he may be admitted without making a previous 
 declaration, (a) 
 
 3. That at the time he shall be admitted, by the 
 said tribunal, to become a citizen of the United States, 
 he shall so renounce such allegiance. 
 
 4. That the said alien shall have resided at least 
 five years within the United States, and in such state 
 or territory where such court is held, one year at least. 
 By subsequent acts, provisions are made in favor of 
 persons who have arrived in the United States at dif- 
 ferent periods. (6) 
 
 5. That the applicant is a man of good moral cha- 
 racter, attached to the principles of the constitution 
 of the United States, and well disposed to the good 
 order and happiness of the same. 
 
 6. That he shall renounce all titles of nobility to 
 which he may be entitled. 
 
 7. That the native country of such alien is then at 
 peace with the United States. (c) 
 
 There are two classes of persons, who, though born 
 out of the United States, are nevertheless citizens 
 thereof. To the first class belong children of Ameri- 
 can ambassadors bom abroad. Among the second 
 class are " the children of persons duly naturalized 
 under any of the laws of the United States, or who, 
 previous to the passing of any law upon that subject 
 by the government of the United States, may have 
 become citizens of any one of the said states, under 
 
 (o) Act of 24th of May, 1828. 
 
 h) See act of 14th of April, 1802 ; Act of 26th of March, 1804 ; Act of 
 July 30, 1813 ; Act of April 22, 1816 ; Act of 26th of May, 1824 ; Act of 
 24 of May, 1828. 
 
 (c) Act of 14th of April, 1802. 
 
 Vol. I. 5 
 
66 OF PERSONS. 
 
 No. 162. Book 1, part 1, tit. 1, ctap. 4, sec. 2, § 4, ait. 2. No. 163. 
 
 the laws thereof, being under the age of twenty-one 
 years at the time of their parents' being -so natural- 
 ized or admitted to the rights of citizenship, shall, if 
 dwelling in the United States, be considered as citi- 
 zens of the United States : provided, that the right of 
 citizenship shall not descend to persons whose fathers 
 have never resided within the United States. "(a) 
 
 162. The Constitution of the United States pro- 
 vides, that "the citizens of each state shall be entitled 
 to all privileges and immunities of citizens in the 
 several states. "(&) 
 
 This clause of the constitution evidently refers to 
 the privilege or capacity of taking, holding, and con- 
 veying lands lying within any state of the Union, and 
 also of enjoying aU civil rights which citizens of any 
 state were entitled to ; but it cannot be extended to 
 give a citizen of another state a right to vote or hold 
 office immediately on his entering the state. (c) 
 
 Jlrt %—Of Miens. 
 
 163. An alien is one born out of the jurisdiction of 
 the United States, subject to some foreign prince, po- 
 tentate, state or sovereignty, and who has never been 
 naturalized under the constitution or laws of the United 
 States, or any of them. 
 
 There must be a union of birth abroad, and subjec- 
 tion to some other power to make an alien ; for, as 
 we have seen, a man may be bom in a foreign coun- 
 try and still be a citizen of the United States, and of 
 no other country whatever. 
 
 The rights and duties of aliens will be properly 
 considered when we come to treat of the enjoyment of 
 their civil rights. 
 
 [a) Act of April 14, 1802, s. 4. 
 
 (I) Const, art. 4, s. 2. 
 
 (c) Ward V. Morris, 4 H. & McH. 341 ; Corfield v. Coryell, 4 Wash. C 
 C. 371 ; 3 Story, Const. ^ 1800 ; Livingston v. Van Ingen, 9 John. 507 ; 
 Gassiess v. Ballon, 6 Pet. 761. 
 
OF NATURAL PERSONS. 67 
 
 No. 164. Bookl, part 1, tit. 1, chap. 4, sec. 2, §5, art. 1,2. No. 167. 
 
 § 5. — Of Freemen and Slaves. 
 Art. 1. — Of Freemen. 
 
 164. A freeman is one who has a right to do what- 
 ever he pleases, not forbidden by law; one in the 
 possession of the civil rights enjoyed by the people 
 generally, (a) It is not necessary that a man should 
 have any political power to be a freeman ; an alien 
 may be a freeman as well as a citizen. Although he 
 may be liable to serve another for a period of time, 
 still he is a freeman, if such service has arisen in 
 consequence of his agreement ; as in the case of an 
 apprentice, who has bound himself to serve another 
 for a definite period. Nor would a servant bound to 
 serve another for a certain period, be less a freeman 
 by his liability so to serve. 
 
 Art. 2.— Of Slaves. 
 
 165. A slave is one who is by law deprived of his 
 liberty for life, and who is the property of another. 
 One who has been kidnapped or stolen away, or a 
 freeman who has been taken by robbers and reduced 
 to slavery, is not a slave. And a citizen of the United 
 States, taken captive by barbarians and reduced to 
 slavery, does not lose either his political or civil rights 
 on that account. 
 
 166. By the natural law all men are created free,(6) 
 and no man can be reduced to slavery but by virtue 
 of some law. The general government of the United 
 States does not sanction or establish slavery : the state 
 governments, where that institution exists, have 
 authorized it by law ; for without such authority it 
 has no existence whatever. (c) 
 
 167. It is a maxim of law, that the ehild follows 
 the condition of the mother, partus sequitur ventrem.{d) 
 
 {a) Hobbs v. Fogg, 6 Watts, 556. 
 (A)Decl. oflnd. 
 
 (c) Jones V. Vanzandt, 2 McLean, 596. 
 {d) Code, 8, 25, 1. 
 
68 OF PERSONS. 
 
 No. 168. Book 1, part 1, tit. 1, chap. 4, sec. 2, ^ 5, art 2. No. 168. 
 
 The child of a female slave is therefore a slave, who- 
 ever may have been its father, (a) But the child of a 
 female slave, born in a free state where slavery is not 
 recognized by law, is free. (6) 
 
 168. A slave has no political nor any civil rights, 
 whUe subject to his condition of slavery. (c) But in a 
 state where slavery is not allowed, a man, who is a 
 slave by the laws of his domicil, may maintain an ac- 
 tion in his own name for a personal tort committed 
 against him within that jurisdiction ;(c?) for by the law 
 of nations, no state is bound to recognize slavery in 
 another state. (e) 
 
 The Constitution of the United States(/) provides, 
 that " no person held to service or labor in one state, 
 under the laws thereof, escaping into another, shall, 
 in consequence of any law or regulation therein, be 
 discharged from such service or labor, but shall be 
 delivered up on the claim of the party to whom such 
 service or labor may be due." Interpreted by the 
 common rules of construction, by which alone it must 
 be understood, the clause is not clear of difl&culty; but 
 
 _ (a) By the Roman law, the child of a female slave was free, if, at the 
 time of the conception, the mother was free ; or if, heing a slave, she was 
 manumitted during the pregnancy, and again hecame a slave Ijefore the 
 child's birth. _ Inst. lib. 1, t. 4. In Kentucky, it was held that when a 
 testator by his will directed that a female slave should be free at a certain 
 age, her children, bom after the death of the testator, and before the period 
 arrived, were held to be slaves. Ned v. Beale, 2 Bibb, 298. In New Jer- 
 sey, where a testator directed his executors to sell a slave for fifteen years, 
 and " at the end of that time to be free," she was considered free from the 
 time of the sale ; and a child born afterwards, and before the end of the 
 fifteen years, was adjudged to be free also. State v. Anderson, Coxe, 36. 
 In Pennsylvania, it has been held that when a pregnant slave absconded 
 from another state, and gave birth to a child in Pennsylvania, the child 
 was free. Commonwealth, v. Halloway, 2 S. & R. 305 ; Beniamin v. Arm- 
 strong, 2 S. & R. 392. 
 
 (b) Jackson v. Bullock, 12 Conn. 38. 
 
 (c) Amy V. Smith, 1 Litt. 326; Lenoir u. Sylvester, 1 Bail. 633 ; Catiche 
 V. The Circuit Court, 1 Miss. 608 : Vincent v. Duncan, 2 Miss. 214 ; Hall 
 V. MuUin, 5 Har. & John. 190 ; The State v. Hart, 4 Ired. 246 ; Gist v. 
 Toohey, 2 Rich. 424 ; Jenkins v. Brown, 6 Humph. 299. 
 
 {d) Polydore v. Prince, Ware, 402. 
 (e) Prigg V. Pennsylvania, 16 Pet. 539. 
 (/) Art. 4, s. 2. 
 
OF NATURAL PERSONS. 69 
 
 No. 169. Book 1, part 1, tit. 1, chap. 4, sec. 2, ^ 5, art. 2. No. 169. 
 
 as the supreme court has given it a judicial construc- 
 tion, the subject must now be considered at rest. 
 
 Another important consideration has been urged, 
 since this subject has unhappily agitated our country, 
 whether congress possess any power to legislate upon 
 the subject. From a very early period of our history, 
 and when many of those who formed the constitution 
 were in the councils of the nation, a law was passed 
 by congress to give this clause its full operation. The 
 act of 12th February, 1793, sec. 3, was passed ; and 
 a still more stringent law was enacted by congress in 
 1850, to enable the owner of a fugitive from labor to 
 recover him when he has fled into a free state. (a) 
 
 169. In some of the states slaves are considered as 
 chattels, (5) and sometimes as real estate. (c) And 
 under the special phraseology of certain acts, they are 
 treated as persons. (c?) 
 
 (a) It is not a little singular, that among the Romans there were laws 
 not dissimilar to the acts of congress mentioned in the text. They declared 
 a slave as a fugitive who staid away from the house of his master with an 
 intention of running away and escaping from his search : the slave was not 
 considered a fugitive who had only had the design of running away, even 
 though he should have divulged his intention — he must have executed it. 
 Dig. 21, 1, 17 and 43 ; Dig. 60, 16, 225 ; Code, 6, 1. 1. After the slave 
 became a fugitive, if any one received him into his house in order to shelter 
 him from the anger of his master, he became liable to an action, and the 
 master could recover damages in an action called de servo corrupto. The 
 law treated him who concealed a fugitive slave, in order to cause his eva- 
 sion, with much severity : Is guifugitivum celavit,fur est. Dig. 11, 4, 1. 
 By a senatus consultuin, authority was given to every military man, or 
 even an individual, to enter into the lands of senators and other persons to 
 search for fugitive slaves ; and, by another law, the houses of the prince 
 himself might be examined to search for them. But in order not too much 
 to infringe on the rights of individuals, the persons who made the searches 
 were to be authorized by the president of the tribunal, who would give an 
 injunction, and send a Serjeant to obtain access to the house intended to 
 be examined. Poth. ad Pand. lib. 11, tit. 4, art. 1, n. 5. When found, the 
 slave was to be brought before a magistrate, whose duty it was to deliver 
 him to his master, if the latter's claim was established. In the provinces, 
 when arrested, the slave was carried before the president of the province or 
 the proconsul, who decided as to the right of the supposed master. Poth. 
 ad Pand. lib. 11, 4—2, 7. 
 
 (b) 1 Walden v. Payne, 2 Wash. 1 ; McDonald v. Walton, 2 Mis. 48 ; 
 Plumpton V. Cook, 2 A. K. Marsh. 450 ; Withers v. Smith, 4 Bibb, 170. 
 
 (c) Wells V. Bowling, 2 Dana, 41. 
 
 Id) The State v. Edmund, 4 Dev. 340. 
 
70 OF PERSONS. 
 
 No. 170. Book 1, pare 1, tit. 1, chap. 4, sec. 2, J 6. No. 171. 
 
 170. Manumission, which is an express act by the 
 owner of the slave by which the Jatter is rendered 
 free, has the efiect to change the state of the slave, and 
 he then acquires all the rights of a free man of color. 
 
 A slave may acquire his freedom, not only with the 
 consent of his owner as above mentioned, but by im- 
 pHcation, or by operation of law alone, as when a 
 master takes his slave into a free state for the purpose 
 of continued residence ; or by a continued residence 
 there, whatever may have been his intention, beyond 
 the time allowed by the laws of such state, the slave 
 becomes free. 
 
 He may also be manumitted by the last will of his 
 master. 
 
 § 6. — Of WMte and Colored Persons. 
 
 171. A white person is one who is of the Caucasian 
 race, without any mixture of African or aboriginal 
 blood, or at most not a fourth part of such blood. (a) 
 In the southern states, when a question as to the quan- 
 tity of African blood in a person arises, it is left to the 
 jury to find it as a matter of fact.(&) 
 
 The act of congress which authorizes the naturahza- 
 tion of aliens, confines the description of such aliens to 
 free white persons. And many of the state constitu- 
 tions require, as one of the qualities of a citizen or 
 elector, that he shall be white. 
 
 A rule has been adopted in the slave states that 
 color is presumption of slavery ;(c) but in the free states 
 this rule would probably be reversed, because there 
 the presumption is that all men are free, and he who 
 would rebut the presumption must estabhsh the con- 
 trary fact.(£^) 
 
 (a) Gentry v. McMinnis, 3 Dana, 382. 
 (i) State V. Davis, 2 Bailey, 558. 
 
 (c) Davis V. Curry, 2 Bibb, 238; Burke k. Joe, 6 GiU & John. 136 ; Raw- 
 lings V. Boston, 3 Harris & McHen. 139. The same rule prevails in New- 
 Jersey, Fox V. Lambson, 3 Halst. 275. 
 
 (d) The presmnption of law is in favor of freedom. The State v. Dilla- 
 
OF NATURAL PERSONS. 71 
 
 No. 172. Book 1, part 1, tit. 1, chap. 4, sec. 2, §7, 8. No. 173. 
 
 § 7. — Of Nobles and Plebeians. 
 
 172. In some countries this distinction exists. A 
 nobleman there, is one to whom some special privileges 
 are granted, generally at the expense of the more de- 
 serving classes of the people. 
 
 A plebeian is one who belongs to the common people. 
 
 Happily, in this country, the order of nobles does 
 not exist : the Constitution of the United States pro- 
 vides that "no title of nobility shall be granted by the 
 United States. "(a) And no state shall " grant a title 
 ofnobiUty."(6) 
 
 § 8. — Of the Sane and Insane. 
 
 173. Sanity is the state of a person who has a sound 
 mind ; one who in his actions conforms to those of the 
 bulk of mankind ; one whom the law regards as capa- 
 ble to perform all civil duties, and to be responsible 
 for his acts. 
 
 Sanity is always presumed. 
 
 Insanity is that state which induces a continued im- 
 petuosity of thought, which, for the time being, unfits 
 a man for judging and acting in relation to the affairs 
 of life with the composure requisite for the mainte- 
 nance of the social relations : one who is deprived of 
 the use of reason, after having attained the age when 
 he ought to have it, either in consequence of a defect 
 at his birth, or because of some accident which has 
 happened since. (c) 
 
 This state is never presumed, but if once proved to 
 exist, it will be presumed to have continued. 
 
 The insane man is deprived of his political and civil 
 rights. He is represented by a guardian, curator, or 
 committee. 
 
 hunt, 3 Harring. 551 ; State v. Griffin, 3 Earring. 559 ; Kinney i;. Cook, 3 
 Soam. 232. 
 
 (a) Art. 1, s. 9, n. 7. 
 
 (i) Ibid. 1, s. 10, n. 1. 
 
 (c) Domat, Lois Civ. hv. 2, s. 1, n. 11 ; Ray, Med. Jur. § 24. 
 
72 OF PERSONS. 
 
 No. 174. Book 1, part 1, tit. 1, chap. 4, sec. 2, § 9, 10. No. 175. 
 
 § 9, — Of infamous persons. 
 
 174. Infamy, in a general sense, is the condition of 
 a person who is regarded with contempt and disap- 
 probation by the generality of men, on account of his 
 vices. (ffl) But, in a legal sense, it is the state of one 
 who has been lawfully convicted of a crime, followed 
 by a judgment,(6) by which he has lost his honor. 
 
 The crimes which render a person infamous are, 
 1, treason ;(c) 2, felony ;(rf) 3, frauds; which come 
 within the notion of the crimen falsi of the Roman 
 law, as perjury and forgery, (e) piracy, (/) swindling 
 and cheating,(g) baratry,(A) and bribing a witness to 
 keep away.(i) 
 
 The consequences of infamy are the loss of political 
 rights and incapacity to testify as a witness. (/c) 
 
 ^ 10. — Of persons born and not born. 
 
 175. Birth is the act of being wholly brought into 
 the world ; the fact of having acquired an existence 
 independent of one's mother. A child born differs in 
 many respects from one in ventre sa mere. 
 
 But unless the child be born alive, it is not a birth, 
 but a miscarriage. The consequence is, that such child 
 neither acquires nor transmits to others any rights. (Z) 
 
 Persons who are born are generally entitled to all 
 the rights which are exercised by others except those 
 which are gained by age, and are the objects of the 
 care of the law. 
 
 One who is not born, technically called an infant 
 
 (a) Wolff. ^ 148. 
 
 \h) State V. Valentine, 7 Iredell, 225 ; U. States v. Dickinson, 2 McLean, 
 325 ; 1 Ashm. 57. 
 (c 1 Greenl. Ev. ^ 373 ; 5 Mod. 16, 74. 
 
 (d) Co. Litt. 6. 
 
 (e) Co. Litt. 6 ; People ». Whipple, 9 Cowen, 707 ; 1 Greenl. Ev. ^ 373. 
 (/) 2 Roll. Ab. 886. 
 
 \g) Fort. 209. 
 
 [h] Rex V. Ford, 2 Salk. 690. 
 
 (i) Fort. 208. 
 
 (h) 1 Greenl. Ev. ^ 372, 376. 
 
 [l) 1 Chit. Gen. Pr. 35, note (z). 
 
OF ARTIFICIAL PERSONS. 73 
 
 No. 176. Book 1, part 1, tit. 2, chap. 1. No. 178. 
 
 in ventre sa mire, is treated as a man, but this is only in 
 the hope of his being born alive. 
 
 176. The rights of a child in ventre sa mere are 
 numerous : 
 
 1. For all beneficial purposes to himself, such a 
 child is considered as born.(«) But a stranger can 
 acquire no title through him, unless he be afterwards 
 born alive. 
 
 2. An estate may be limited to his use.(&) 
 
 3. He may have a distributive share of an intestate 
 property, (c) 
 
 4. May take a devise of lands. (J) 
 
 5. Takes under a marriage settlement a provision 
 made for children living at the death of the father. (e) 
 
 6. May be appointed executor, at common law.(/) 
 
 7. A guardian may be assigned to him.(g) 
 
 8. Others may act on his behalf. (A) 
 
 TITLE II.— OF ARTIFICIAL PERSONS OR CORPORA- 
 TIONS. 
 
 177. Having considered the rights and duties of 
 natural persons, the next object of our inquiries will 
 be the law relating to artificial persons or corporations. 
 This will be done by considering, 1, what is a corpora- 
 tion ; 2, how it is created ; 3, the kinds of corporations; 
 4, their powers ; and 5, how they are dissolved. ■ 
 
 CHAPTER I.— DEFINITION. 
 
 178. A corporation is an intellectual body politic, 
 created by law, composed of one or more persons 
 acting under a common name, endowed with per- 
 petual succession, and with various other powers, by 
 its charter or the law which created it, and which, 
 for certain purposes, is considered as a natural person. 
 
 (a) Co. Litt. 36. (e) Miller v. Turner, 1 Ves. 85. 
 
 (b) 1 Bl. Com. 130. {/) Bac. Ab. Infancy, B. 
 
 (c) 1 Ves. 181. (g) 1 Bl. Com. 130. 
 
 {d) Wallis V. Hodson, 2 Atk. 117. (h) Beeton v. Darkin, 2 Vem. 170. 
 
74 OF PERSONS. 
 
 No. 179. Book 1, part 1, tit. 2, chap. 2. No. 180. 
 
 It is, as it is well observed by Chief Justice Marshall, 
 " an artificial being, invisible, intangible, and existing 
 only in contemplation of law. "(a) 
 
 CHAPTER n.— OF THE CREATION OP A CORPORATION. 
 
 179. Unlike the law of England, which allows the 
 existence of corporations by implication, by prescrip- 
 tion, or by the express or implied consent of the king, 
 corporations by our law owe their origin to a legisla- 
 tive act, called a charter; and this is the source of aU 
 their power. (&) 
 
 " Being the mere creature of law," says the late 
 learned Chief Justice Marshall, in the case already 
 cited, "it possesses only those properties which the 
 charter of its creation confers upon it, either expressly 
 or as incidental to its very existence. These are such 
 as are supposed best calculated to effect 'the object for 
 which it was created. Among the most important 
 are immortality, and, if the expression may be allowed, 
 individuality ; properties by which a perpetual succes- 
 sion of persons are considered as the same, and may 
 act as a single individual. They enable a corporation 
 to manage its own affairs, and to hold property with- 
 out the perplexing intricacies, the hazardous and end- 
 less necessity of perpetual conveyance, for the purpose 
 of transmitting it from hand to hand. It is chiefly for 
 the purpose of clothing bodies of men, in succession, 
 with these qualities and capacities, that corporations 
 were invented and are in use." 
 
 180. Joint stock companies and partnerships are 
 not corporations, unless actually incorporated. In 
 these cases the individual members are parties to 
 every contract, and do not lose their individuahty in 
 that of the social body.(c) 
 
 (a) Dartmouth College v. Woodward, 4 Wheat. 626. 
 
 {b) Head v. Providence Ins. Co., 2 Cranch, 127 ; 4 Wheat. 636. 
 
 (c) See Ernst v. Bartle, John. Cas. 319. 
 
OF ARTIFICIAL PERSONS. 75 
 
 No. 181. Book 1, part 1, tit. 2, chap. 3, sec. 1. No. 182. 
 
 CHAPTER m— OF THE VARIOUS KINDS OF CORPORATIONS. 
 
 181. Corporations have been variously classed, 
 according to the views or skill of different writers. 
 They are not unfrequently divided into public, or such 
 as relate to towns, cities, counties, and parishes, exist- 
 ing for pubhc purposes; (a) and private, or such as 
 concern matters not of a public nature. Private cor- 
 porations, when considered as to their object, are 
 ecclesiastical, when they relate to the affairs of the 
 church ; or lay, when they affect other persons ; and 
 the latter are divided into civil, when they have for 
 their object the promotion of something of a temporal 
 nature ; and eleemosynary, when they are constituted 
 for the perpetual distribution of free alms, or the 
 bounty of the founder, as he has directed. In this 
 class are included hospitals for the relief of the poor, 
 and colleges for the promotion of learning. (&) When 
 considered as to the number of members, they are sole 
 or aggregate. A sole corporation consists of one per- 
 son only, or his successors. Few of these are to be 
 found in the United States, though some exist, (c) 
 Aggregate corporations consist of two or more persons. 
 
 AU these may be reduced to four classes, namely : 
 1, political ; 2, public and not political ; 3, private ; 
 4, quasi corporations. 
 
 SECTION 1. OF POLITICAL CORPORATIONS. 
 
 182. Political corporations are those which have 
 principally for their object the administration of the 
 United States, of some state of the Union, or some 
 portion of the same, and to whom the powers of the. 
 government, or a part of such powers, have been 
 delegated to that effect. 
 
 (a) Bonaparte v. The Camden and Amboy Rail Road Company, I Bald. 
 223. 
 
 (i) Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 668. 
 
 (c) Brunswick v. Dunning, 7 Mass. 447 ; Weston v. Hunt, 2 Mass. 501 ; 
 Jansen v. Ostrander, 1 Cow. 670. 
 
76 OF PERSONS. 
 
 No. 183. Book 1, part 1, tit. 2, chap. 3, sec. 2, 3. No. 184. 
 
 Nations or states are denominated bodies politic; 
 they have their affairs and interests to deliberate on in 
 common. They thus become moral persons, having 
 an understanding and will peculiar to themselves, and 
 are susceptible of obligations and laws.(«) In this 
 extensive sense, the United States of America may be 
 termed a corporation ;(6) and so may each of the states 
 of the Union singly. To this class belong all munici- 
 pal corporations, as counties, townships, districts, cities, 
 boroughs and the like. 
 
 SECTION 2. — OF PUBLIC CORPORATIONS, NOT POLITICAL. 
 
 183. Corporations of a puhlic nature, which are not 
 political, are those which are composed for the benefit 
 of the government alone, but if individuals have a 
 part in them they are private : for example, if a 
 bank were incorporated for the use of the government, 
 and there were no other stockholder, it would be a 
 public corporation ; but if any private individual held 
 a part of the stock, it would be a private corpora- 
 tion, (c) 
 
 SECTION 3. — OF PRIVATE CORPORATIONS. 
 
 184. All corporations, which are neither political 
 nor public, are private corporations. They are divided 
 into civil and religious ; and this results, as well from 
 the quality of the persons who usually compose them, 
 as from the difference of their object. 
 
 Civil corporations are those which relate to tempo- 
 ral police ; such as companies for the advancement of 
 commerce, agriculture, literary societies, colleges, 
 hospitals, and the like. 
 
 Religious corporations are those whose principal 
 object is to establish and regulate congregations of 
 different religious denominations. 
 
 (a) Vatt. liv. prel. H & 4. 
 
 (b) 1 Marsh, Dec. 177 ; Per IredeU, J. 3 Ball. 447 ; United States v. Tin- 
 gey, 5 Pet. 115 ; United States v. Baker, Paine, R. 156. 
 
 (c) Bank of the U. States v. Planters' Bank of Georgia, 9 Wheat. 907. 
 
OF ARTIFICIAL PERSONS. 77 
 
 No. 185. Book 1, part 1, tit. 2, chap. 4. No. 187. 
 
 Private corporations give a right to the corporators 
 of which they cannot be deprived without their consent, 
 unless the act of incorporation or charter reserves to 
 the legislature the power to do so ; and in this respect 
 they differ from public or political corporations, be- 
 cause in the latter no vested right is violated by the 
 change, and the legislature may at pleasure alter the 
 provisions of their charter or constitution. 
 
 SECTION 4. OF QUASI-COKPOEATIONS. 
 
 185. By quasi-corporations is understood a municipal 
 society or body of men, who, though not vested with 
 the general powers of a corporation by any express 
 law, are yet recognized by statute, or immemorial 
 usage, and the body they compose is a person or an 
 aggregate corporation, with powers and duties which 
 may be enforced, and privileges which niay be main- 
 tained by suits at law. Such bodies are considered 
 qua corporations, with limited powers, coextensive with 
 the duties imposed upon them by statute or usage ; but 
 restrained from a general use of authority, which be- 
 longs to those metaphysical persons by common law. 
 
 186. Among quasi-corporations may be classed 
 towns, townships, counties, parishes, hundreds, and 
 other political divisions, which are established without 
 an express charter of incorporation; commissioners of 
 a county, supervisors of highways, overseers of the 
 poor, loan officers of a county, and the like, who are 
 invested with corporate powers sub modo, and for a few 
 specified purposes only. But not such a body as the 
 General Assembly of the Presbyterian Church, (a) 
 
 CHAPTER IV.— OF THE POWERS AND INCAPACITIES OF COR- 
 PORATIONS. 
 
 187. This chapter will be divided into two sections: 
 in the first will be considered what are the rights, 
 
 (a) Commonwealth v. Green. 4 Whart. 531 ; Ana;, on Corp. 16 : 2 Kent, 
 Com. 224. 
 
78 OF PERSONS. 
 
 No. 188. Book 1, part 1, tit. 2, chap. 4, sec. 1, 5 1. No. 188. 
 
 powers, and privileges of a corporation, and by wliom 
 they are to be exercised ; and, in the second, its inca- 
 pacities. 
 
 SECTION 1. — OP THE EIGHTS, POWERS, AND PRIVILEGES OF 
 A CORPORATION. 
 
 § 1. — What are such powers, etc. 
 
 188. A corporation is, for all the purposes of its 
 creation, to be considered as a person, capable of per- 
 forming a variety of acts for the promotion of the 
 object of its creation, and sanctioned by the charter. 
 Among these are — 
 
 1. To use a common seal, for the purpose of authen- 
 ticating all its solemn acts. Formerly a corporation 
 could bind itself only by seal. (a) But this doctrine is 
 now repudiated,(6) and an aggregate corporation may 
 contract, unless restrained by its charter, by the inter- 
 vention of agents duly authorized by a corporate vote 
 of the board of managers or directors;(c) and even an 
 implied contract will be enforced against a corpora- 
 tion, but such implied contract must be within the 
 scope of its authority. (J) The seal is required only m 
 those cases where an individual must use one. 
 
 2. A corporation may enter into contracts: it has the 
 same capacity to buy and sell that an individual has 
 who is sui juris, unless restrained by its charter, (e) 
 They are generally restricted as to the quantity of 
 land they may hold. When authorized to hold lands 
 they may use them as individuals, and may, therefore, 
 sell them or mortgage them to secure debts due by 
 them.(/) 
 
 (a) 1 Bl. Com. 475. 
 
 (b) Chestnut Hill Turnpike v. Butter, 4 S. & R. 16 ; Rumford v. Wood. 
 13 Mass. 199 ; Bank of U. S. v. Dandridge, 12 Wheat. 64. 
 
 (e) Bank of Columbia «. Patterson, 7 Cranch, 299. 
 
 (d) Canal Bridge v. Gordon, 1 Pick. 297 ; Stone v. Berkshire Cong. So- 
 ciety, 14 Verm. 86 ; Bates v. Bank of Alabama, 2 Ala. 451. 
 
 (e) Reynolds v. Comm. of Starks, 5 Ham. 205. 
 
 (/) Gordon v. Preston, 1 Watts, 135 ; S. P. 5 Wend. 590. 
 
OF ARTIFICIAL PERSONS. 79 
 
 No. 188. Bookl, parti, tit. 2, chap. 4, sec. 1, 51. No. 188. 
 
 3. A corporation is an intellectual being, different and 
 distinct from all persons who compose it. It has indi- 
 viduality. The estate or rights of the corporation be- 
 long completely to the body, and not to the individuals 
 who compose it ; nor can any one of them dispose of 
 any such estate or right, or of any part of it. In this 
 respect the right to the property is different from 
 rights held in common. What is due to a corporation 
 is not due to any of the individuals who compose it, 
 and debts due by such corporation are not due by the 
 individual members. 
 
 4. It has uninterrupted succession. As long as the 
 charter endures it remains the same, although all its 
 members may be changed. As to its duration it is 
 either unlimited, when it becomes immortal, or it is 
 limited, and then it expires at the time appointed by 
 its charter. It may, however, be dissolved by various 
 other means. (a) 
 
 5. A corporation has a corporate name, which is 
 always fixed by the charter, and in this name it makes 
 all its contracts and sues and is sued.(&) But if in a 
 contract with a corporation its name be so given as to 
 distinguish it from all other corporations, it is sufficient 
 to support an action in the true corporate name.(c) 
 
 6. For the regulation of their affairs in detail, cor- 
 porations are authorized to make by-laws or rules and 
 ordinances for their government. When the power to 
 make by-laws is expressly conferred by the charter, it 
 must be exercised by the persons to whom it is given, 
 and in the manner pointed out. (J) When the charter 
 is silent as to the persons who shall make by-laws, the 
 power resides in the members of the corporation at 
 large. (e) When a by-law is made to conflict with the 
 
 (a) Post, n. 194. 
 
 {b) Porter v. Neckervis, 4 Rand. 359. 
 
 (c) Hagerst. Tump. v. Oreger, 5 Har. & J. 122 ; Alloway's Creek «. 
 String, 5 Halst. 323 ; Berks and Dauphin cos. v. Myers, 6 S. & R. 16 ; 
 Bac. Ab. h. t. (c). 
 
 (d) Kyd on Corp. 102. 
 
 (e) Harr. & Gill, 324; 4 Burr, 2515, 2521 ; 6 Bro. P. 0. 519. 
 
80 OF PERSONS. 
 
 No. 189. Book 1, part 1, tit. 2, chap. 4, see. 1, § 1. No. 190. 
 
 Constitution of the United States or its laws, or with 
 the constitution or laws of the state, it is void. And 
 so is an unreasonable law,(fl) or one which operates 
 retrospectively, (&) or one which is not requisite for the 
 good government and support of the affairs of the cor- 
 poration, (c) But a by-law may be good in part and 
 void for the Test.{d) 
 
 189. A corporation is usually composed of many ' 
 members, or persons whp have a right to act in the 
 affairs of the corporation, like any others who have an 
 interest in the same. In charitable, and other civil 
 or reUgious corporations, not of a pecuniary nature, 
 each member has an equal right, and the majority rule; 
 but in pecuniary corporations, for example, a bank, 
 the members vote by representing the interest they 
 have in it, which is called their stock, and not by repre- 
 senting their persons. In such cases the capital is 
 divided into shares, and every one who is a shareholder 
 is a membei of the corporation. 
 
 190. Great inconvenience would follow if all the 
 members of a numerous corporation were required to 
 be present, whenever business was transacted in which 
 it was concerned. To obviate this, the charter usually 
 provides that there shall be elected a number of the 
 corporators, who shall have the power to manage the 
 affairs of the corporation, and these are called by the 
 various names of managers, directors, syndics, committees, 
 and the like. 
 
 These officers constitute themselves into a separate 
 body, called a board of managers, etc., have all an 
 equal voice, and, in the management of the affairs of 
 the corporation, a majority rule without any regard to 
 the amount of stock they hold individually; and, when 
 they act within the limits of their powers, bind the 
 corporation. Agents and attorneys, acting within the 
 
 (a) Comm. v. Worcester, 3 Pick. 473. 
 
 (b) Howard v. Savannah, Charlt. 173. 
 
 (c) Comm. V. St. Patrick's Society, 2 Binn. 448. 
 
 (d) Rogers v. Jones, 1 Wend. 260. 
 
OF ARTIFICIAL PERSONS. 81 
 
 No. 191. Book 1, part 1, tit. 2, chap. 4, sec. 2. No. 193. 
 
 powers delegated to them, when the board have a 
 right to delegate such powers, bind the corporation as 
 if the act had been that of the board. 
 
 191. Managers and other officers may be removed 
 from their office by the members of the corporation, 
 for cause. This power, which is called the power of 
 amotion, is incident to every corporation. 
 
 192. Disfranchisement, which is the power to expel 
 a member, must in general be expressly given. But 
 every corporation has power, inherently, to expel 
 members in certain cases. 
 
 1. When a member commits an infamous offence, 
 rendering him unfit for the society of honest men : in 
 such case there must be a previous conviction at law. 
 
 2. When the offence is against the party's duty as a 
 corporator: in this case, he must be expelled on trial, 
 after being duly summoned, on conviction by the cor- 
 poration. 
 
 3. When the offence is of a mixed nature, against 
 the party's duty as a corporator, and also against the 
 law of the land. (a) 
 
 SECTION 2. OF THE INCAPACITIES OF COEPORATIONS. 
 
 193. Corporations being intellectual persons, they 
 are subject to various kinds of incapacities, some of 
 which are inherent to their nature, others are estab- 
 lished by law. 
 
 A corporation cannot commit a crime, nor a misde- 
 meanor, though its officers may, while acting on its 
 behalf, do both ; in such case, they alone will be re- 
 sponsible. (&) Nor can such a body commit any forci- 
 ble injury, as trespass. 
 
 A corporation cannot be a witness, nor do any per- 
 sonal act: when it is sued, and must make an answer 
 in chancery, such answer must be made under the 
 corporate seal. 
 
 (a) Comm. v. St. Patrick's Society, 2 Binn. 448 ; Comm. v. Guardians of 
 the Poor, 6 S. & R. 469. 
 
 [b) Comm. V. Swift Run Gap Tump. Co., 2 Virg. Cas. 362 ; The State 
 i>. The Great Works, etc. Co. 2 App. 41. 
 
 Vol. I. 6 
 
82 OF PERSONS. 
 
 No. 194. Book 1, part 1, tit. 2, chap. 5. No. 194. 
 
 Having no other than an ideal existence, a corpora- 
 tion cannot commit a battery, nor bring an action for 
 an assault and battery ; it cannot be imprisoned. But 
 corporations may be liable for acts of omission of their 
 officers or agents. 
 
 A corporation derives all its power from its charter, 
 it is of course incapable to perform any act forbid- 
 den by it, or which it does not authorize. 
 
 CHAPTER v.— OP THE DISSOLUTION OP CORPORATIONS. 
 
 194. A corporation legally established, may dissolve 
 in the following ways : 
 
 1. By efflux or lapse of time. When the charter 
 limits a time for the existence of the corporation, it is 
 dissolved as soon as the period arrives. 
 
 2. ^j surrender. A corporation may yield up all 
 rights to its charter, and surrender it to the legisla- 
 ture from whom it emanated ;(a) and if the rights of 
 third persons are to be affected by it, the surrender 
 must be accepted by the legislature. (&) But the offi- 
 cers of a corporation, composed of several integral 
 parts, cannot dissolve the corporation, without the full 
 assent of the great body of the society, (c) 
 
 3. By a legislative act. A public corporation, when 
 no individual has any vested interest in it, may be 
 dissolved by an act of the legislature ; but private cor- 
 porations, where such private rights are vested, cannot 
 be dissolved by a statute, so as to deprive any one of 
 a vested right, unless the power so to dissolve it has 
 been reserved in the charter. This wise provision is 
 now generally contained in new charters. 
 
 4. By death of all the members of a corporation. 
 But this does not apply to pecuniary corporations, as 
 for example, a bank ; in that case the rights of the 
 
 (a) Mumma v. Potomac Company, 8 Pet. 281. 
 
 (b) Revere v. Boston Copper Co., 15 Pick. 351 ; Enfield TollBridge Co. 
 V. Conn. River Co., 7 Conn. 45. 
 
 (c) Smith V. Smith, 3 Desaus. 557. 
 
OF ARTIFICIAL PERSONS. 83 
 
 No. 195. Book 1, part 1, tit. 2, chap. 8. No. 105. 
 
 corporator vest in his executors or administrators, who 
 then become members. 
 
 5. By forfeiture. A corporation may, by wilful non- 
 feasance or mal-feasance, forfeit its -franchises, which 
 may be seized by the state on a judgment upon an in- 
 formation filed and prosecuted by the state. (a) But 
 such prosecution can be only by the state through its 
 agents. (6) The remedy is by scire facias or quo war- 
 ranto. 
 
 CHAPTER VI.— OF FOEBIGN CORPORATIONS. 
 195. It is a rule of law, founded on reason, that no 
 state has a right to extend the jurisdiction of its laws 
 beyond its own territory. The states of the American 
 Union are for many purposes considered as foreign to 
 each other, and the jurisdiction of the laws of one of 
 them can extend into the others only in those cases 
 where the laws of a foreign country, or one not a mem- 
 ber of the Union, becomes the rule for deciding con- 
 troversies ; but by the rules adopted among themselves, 
 on the principle of comity, the laws of one of the states 
 will, in certain cases, be executed, or have force in 
 another. 
 
 Every corporation erected by the laws of a foreign 
 state, taken in this sense, is a foreign corporation. 
 Such a corporation cannot lawfully carry on business 
 in another state; as, for example, a corporation created 
 by the laws of Massachusetts, to carry on manufac- 
 turing or banking, could not establish itself in Penn- 
 sylvania, and there pursue the object of its creation, 
 because the state of Massachusetts cannot extend its 
 laws over Pennsylvania; but, by the comity of nations, 
 a corporation established in one state may sue in an- 
 other ; and it may sue in a court of equity, as well 
 as at law.(c) 
 
 (a) Terret v. Taylor, 9 Cranoh, 43. 
 
 [h) Comm. v. Union Fire, etc., Ins. Co., 5 Mass. 230. See Lehigh Bridge 
 Company d. Lehigh Coal and Nayigation Company, 4 Rawle, 9. 
 
 (c) Silver Lake Bank v. North, 4 John. Ch. 370 ; Bank of Marietta v. 
 Pindalf, 2 Rand. R. 465 ; Clarke v. New Jersey Steam Navigation Com- 
 pany, 1 Story, 531 ; British American Land Company v. Ames, 6 Met. 391 ; 
 
84 OF PERSONS. 
 
 No. 196. Book 1, part 2, tit. 1, chap. 1. No. 197. 
 
 A foreign corporation, composed wholly of aliens, may 
 sue in the federal courts, for the court will go beyond 
 the corporate name and ascertain who are the parties 
 really interested. (a) 
 
 PART II.— OF THE ENJOYMENT AND LOSS OF 
 CIVIL. RIGHTS. 
 
 TITLE I.— OP CONSTITUTIONAL EIGHTS. 
 
 196. Whatever may be the theories which have 
 been adopted in other countries in order to establish a 
 civil state, or the combination of all the power of a 
 society of men under a particular direction, in the 
 United States we need not have any recourse to them, 
 because the foundation of our government is a com- 
 pact or agreement of the people establishing the civil 
 state, the constitution. 
 
 The first law of the civil state is the establishment 
 of a public power to cause the execution of the laws, 
 which shall not be exercised by any individual of the 
 society; he is not permitted to do himself justice, but 
 must appeal in all cases when required to the deposi- 
 tories of the public authority, or to the power of all for 
 the surety of all, whenever he can have recourse to it. 
 Hence the maxim that all the people are under the 
 protection of the law. 
 
 All rights flow from the same source, the whole of 
 the laws which concern the state ; but they may be 
 divided conveniently into political rights and civil 
 rights. 
 
 CHAPTER I.— OF POLITICAL RIGHTS. 
 
 197. Political rights consist in the faculty of partici- 
 
 Savage Man. Co. v. Armstrong, 6 Shep. 34 ; Day v. Essex Bank, 13 Verm. 
 97 ; Bank of Washtenaw v. Montgomery, 2 Scam. 422 ; GuagalronCo. d. 
 Dawson, 4 Blackf. 202 ; Libbey v. Hodgdon, 9 N. Hamp. 394 ; Bank of 
 Augusta V. Earle, 13 Pet. 519 ; Lucas v. Bank of Georgia, 2 Stew. 147. 
 
 (a) Bank of U. S. v. Deveaux, 5 Cranch, 61 ; Soc. for the Propagation of 
 the Gospel v. Wheeler, 2 Gall. 105 ; Lexington Man. Co. v. Dorr, 2 Litt. 256. 
 
OF CONSTITUTIONAL RIGHTS. 85 
 
 No. 198. Book 1, part 2, tit. 1, chap. 2, sec. 1. No. 800. 
 
 pating directly, either in the exercise or the establish- 
 ment of the public power, or the public functions. 
 These rights are fixed by the constitution, and have 
 been considered in a former part of this work. (a) 
 
 CHAPTER n.— OF CIVIL RIGHTS. 
 
 198. Civil rights are those which have not for their 
 object the exercise or the establishment of public 
 power or functions. They consist in the power of 
 acquiring and enjoying property, of exercising paternal 
 and marital authority, and the like. Every one, un- 
 less lawfully deprived of them, is in the enjoyment of 
 his civil, but not of his political rights. An alien, for 
 example, has no political, though he is in the full en- 
 joyment of his civil rights. 
 
 Civil rights are divided into absolute and relative. 
 
 SECTION I. OF ABSOLUTE EIGHTS. 
 
 199. Absolute rights are those which belong to each 
 man in particular, considered as an individual, inde- 
 pendently of the relations which he has with other 
 men, or the other members of society. Liberty, for 
 example, is an absolute right. 
 
 By absolute rights, in a primitive and strict sense, 
 must be understood those which man holds from na- 
 ture ; those which he enjoyed in his natural, indepen- 
 dent state, and which he continues to enjoy in his civil 
 state ; for the very object of civil society is to main- 
 tain him in those absolute rights which he derives 
 from the immutable laws of nature. 
 
 200. In entering into society, man yields up a part 
 of his natural independence in exchange for the advan- 
 tages he receives from society ; and in consideration 
 of those advantages he becomes bound to obey the laws 
 which the majority have established. This species of 
 constraint is far preferable to the ferocious liberty of a 
 
 (a) Prel. Tit. c. 3. 
 
86 Of persons. 
 
 No. 201. Book 1, part 2, tit. 1, chap. 2, sec. 1, ^ 1. No. 203. 
 
 state of nature ; for if he is restrained, others are also 
 prevented from doing him any injury. 
 
 201. Civil liberty is the power to do whatever is 
 permitted by the constitution of the state, or the laws 
 of the land. It is no other than natural liberty, so 
 far restrained by human laws, and no further, operat- 
 ing equally upon all the citizens, as is necessary and 
 expedient for the general advantage of the public. (a) 
 Thus every law which prevents us from injuring our 
 fellow citizens, increases and assures civil liberty, 
 though it may decrease natural freedom. On the con- 
 trary, every law which controls our actions, unneces- 
 sarily, in relation to things purely indifferent, is a law 
 against liberty, unless, upon the whole, it proves a 
 benefit to society at large. (6) 
 
 Laws prudently estabHshed, so far from destroying 
 our absolute rights, become their strongest support. 
 
 The absolute rights may be divided into three prin- 
 cipal points : personal security, personal liberty, and 
 the right to enjoy property. 
 
 § 1. — Of personal security. 
 
 202. The right of personal security is the principal 
 object of the law. It consists in the legal and unin- 
 terrupted enjoyment by a man of his life, his limbs, 
 his body, his health, and his reputation. 
 
 203. — 1. Life is a gift which man has received from 
 God, and which society incessantly endeavors to se- 
 cure to him, even before he is born, from the very 
 instant he exists in ventre sa mere. The law does not 
 alone punish the homicide of a man who is bom, but 
 it punishes as a misdemeanor, whoever has procured 
 the criminal abortion of a woman quick with child, 
 even with her consent. And though the mother ap- 
 pears to have some rights over the foetus, which is yet 
 a part of herself, she is punishable for attempting its 
 life. 
 
 (a) 1 Bl. Com. 125 ; Paley's Mor. Phil. B. 6, c. 5 ; 1 Swift's Syst. 12. 
 
 (b) 1 Bl. Com. 126. 
 
OF CONSTITUTIONAL RIGHTS. 87 
 
 No. 203. Book 1, part 2, tit. 1, chap. 2, sec. 1, 5 1. No. 203. 
 
 An infant in ventre sa mere, or in its mother's womb, 
 is considered as having the rights of a man born, 
 whenever it is for the interest of its Ufe or its preser- 
 vation that it should be so. (a) It is for this reason 
 that if a woman quick with child should be capitally 
 convicted, her execution will be delayed until after 
 her confinement. (6) 
 
 The law punishes homicide committed with pre- 
 meditation, with death — and without premeditation, 
 with a less punishment, regulated according to circum- 
 stances. It punishes even attempts upon human life, 
 when followed by a commencement of execution. 
 
 But the law foresees still further, and places man in 
 a state of nature by restoring to him all his rights of 
 self-defence, whenever it finds itself impotent and un- 
 able to protect his life, the safety of his limbs, or even 
 his property. When he can obtain redress by apply- 
 ing to the law, however, he is bound to call for its aid. 
 If in self-defence he kills the assailant, he is excused 
 on the ground of necessity, (c) 
 
 The party attacked may undoubtedly defend him- 
 self, and the law further sanctions the reciprocal de- 
 fence of such as stand in the near relation of husband 
 and wife, parent and child, and master and servant, (d) 
 
 He who makes the attack may be resisted, and, if 
 several join in such attack, they may all be resisted ; 
 and one may be killed, although he may not himself 
 have given the immediate cause for such killing, if, by 
 his presence, and his acts, he has aided the assailants. 
 
 Besides the provisions which have been made in the 
 penal code, for the punishment of those who attempt 
 to injure the lives of others, the law has made other 
 provisions for the security of life, and the preservation 
 of those unable to take care of themselves, by the 
 
 (a) 1 Bl. Com, 130 ; 1 TouU. n. 210 ; Dig. 1, 5, 26. 
 
 (b) Bouv. L. I). Pregnancy. 
 
 (c) Hawk. B. 2, c. 11, s. 13. 
 
 (d) 2 Roll. Ab. 546 ; 1 Chitt. Pract. 592. 
 
OF PERSONS. 
 
 No. 204. Book 1, part 2, tit. 1, chap. 2, sec. 1, § 1. No. 207. 
 
 establishment of hospitals, and by making a provision 
 for the poor. 
 
 It is also with a view to maintain personal security, 
 that a police has been established, which, even un- 
 known to us, takes care of our persons and property, 
 
 204. — 2. The law anxiously protects not only the 
 life, but the limbs of every individual. By limbs is 
 understood those members of the body, which may be 
 useful in fight, and the loss of which amounts to may- 
 hem by the common law. By statute law, in perhaps 
 every state of the Union, woundings, cutting ofi" the 
 nose, slitting the lips, and other such grave injuries, 
 are also punished by statute, when committed unlaw- 
 fully and with premeditation ; if they are committed 
 unlawfully but without premeditation, then with penal- 
 ties less severe. 
 
 The right of self-defence extends to injuries com- 
 mitted against the limbs and the body of a man, and 
 the aggressor may even be killed, if the person at- 
 tacked has no other means of saving himself: si diter 
 periculum effugere non potest. 
 
 205. — 3. A man has a right to the protection of his 
 body, from all assaults and batteries, insults or men- 
 aces, and the law protects him in the enjoyment of 
 these. 
 
 206. — 4. Health is of vast importance to man, for 
 without health the blessings of life cannot be enjoyed. 
 The law protects it whenever it is assailed. When 
 the injury to health is so great as to afiect the pubhc, 
 as by the erection of a nuisance, the party guilty of 
 erecting it may be indicted ; and a physician who un- 
 lawfully endangers the health of his patient, may be 
 punished either for the misdemeanor by public indict- 
 ment, or by an action by the party injured. 
 
 207. — 5. The law also guarantees to every mem- 
 ber of society the full enjoyment of his honor and repu- 
 tation. Confidence binds men together, and hence 
 arises reciprocal esteem. It is to the love of esteem 
 
OF CONSTITUTIONAL RIGHTS. 89 
 
 No. 208. Book 1, part 2, tit. 1, c hap. 2, sec. 1, § 2, art. 1. T>lo- ^9- 
 
 that the origin of honor is owing This dehcate senti- 
 ment takes it source in nature, because man naturally 
 loves the esteem of his fellows. Honor or reputation 
 are dearer than life, and for civilized man they are 
 the most precious possessions. For this reason, repu- 
 tation is so well guarded by law, which affords in 
 general an efficacious remedy. This will be further 
 considered when we come to treat of actions. 
 
 § 2. — Of personal liberty. 
 
 208. Personal liberty is the independence in our 
 actions of all other will than our own;(o!) it consists 
 in the power of locomotion, of changing situation, of 
 removing one's person to whatever place one's inclina- 
 tion may direct, without imprisonment or restraint, 
 unless by due course of law, for some crime or 
 wrong. (&) This right is protected by law, and con- 
 sists in three principal points : 
 
 Liberty of our person and actions ; 
 
 Liberty of thought, of speech, and of printing what- 
 ever we please, subject to punishment for the abuse of 
 this freedom ; and 
 
 Liberty of conscience. 
 
 Jlrt. 1. — Of the liberty of our person and of our actions. 
 
 209. The liberty of the person and of actions consists 
 in the faculty of doing whatever is not injurious to 
 others, and what is not forbidden by the law, without 
 any authority in any one to prevent us, to arrest or 
 to imprison us in any case, except in cases deter- 
 mined by law, and according to the form it has pre- 
 scribed, (c) 
 
 A necessary consequence of this liberty is the right 
 which all citizens of the United States have of remain- 
 ing in the country as long as they may desire, and where 
 it shall please them, without being liable to be arbi- 
 
 (a) Wolff. Ins. Nat. ^ 77. 
 
 (b) 1 Bl. Com. 134. 
 
 (c) Const. Am. art. 5. 
 
90 OF PERSONS. 
 
 No. 210. Book 1, part 2, tit. 1, chap, 2, sec. 1, § 2, art. 1. No. 211. 
 
 trarily compelled to go out of it, or to be exiled, unless 
 by virtue of some law, and a competent judgment. 
 
 It is of the greatest importance to the people that 
 personal liberty should be religiously respected. If 
 a man's property should be arbitrarily taken, the fact 
 would alarm his fellow-citizens and they would be 
 prepared to resist. , But to arrest a man, put him in 
 an obscure and impenetrable prison, and there leave 
 him without any knowledge on the part of his family 
 or friends as to his place of confinement, and perhaps 
 forgotten by those who deprived him of his liberty, is 
 an act which, being hidden, makes less sensation, and 
 for that cause becomes more dangerous to public liberty. 
 The constitution has wisely provided that no person 
 shall " be deprived of his life, liberty, or property, 
 without due process of law. "(a) 
 
 210. To protect the personal liberty of the citizen 
 from unlawful arrests, it is the law that no person can 
 be imprisoned for an alleged crime, unless upon the oath 
 of some competent witness, (&) and the warrant of com- 
 mitment must be in writing, under the hand of a com- 
 petent magistrate ; it must express the cause of the 
 commitment, and show by what authority the prisoner 
 is committed. 
 
 No man can be committed who can give bail, ex- 
 cept in some special cases designated by law, and no 
 excessive bail shall be required. (c) 
 
 211. Still further to protect him, the law gives to 
 the prisoner, or to any one who will sue it out on his 
 behalf, the benefit of the writ of habeas corpus. This 
 is an order in writing, signed by the judge who grants 
 -the same, and sealed with the seal of a court of which 
 he is judge, issued in the name of the sovereignty 
 where it is granted, by such a court or a judge thereof, 
 having lawful authority to issue the same, directed to 
 
 ^1 Amend, art. 5. 
 
 [b) Connor v. The Commonwealth, 3 Binn. 38 ; 2 Russ. on Cr. 512. 
 
 (c) Const, art. 8. 
 
OF CONSTITUTIONAL RIGHTS. 91 
 
 No. 211. Book 1, part 2, tit. 1, chap. 2, see. 1, § 8, art. 1. ^o- 211' 
 
 any one having a person in his custody or under his 
 restraint, commanding him to produce such a person 
 at a certain time and place, or to state the reasons 
 why he is held in custody or under restraint. To this 
 writ the person to whom it is addressed is required to 
 make a return, and the judge on that return, decrees 
 what shall be done, whether the prisoner shall be re- 
 manded, admitted to bail, or discharged. 
 
 In England this writ is secured by the 31 Car. II., 
 c. 2, and the English justly pride themselves in the 
 existence of this remedy, which some seem to think 
 originated with them, but of this there is just ground 
 to doubt, (a) In the United States this writ has been 
 adopted by legislative enactments very similar to the 
 statute of 31 Car, II., or by enforcing the provisions of 
 that act. 
 
 The habeas corpus can be suspended only by authority 
 of the legislature. The constitution provides that "the 
 privilege of the writ of habeas corpus shall npt be sus- 
 pended, unless when in case of rebellion or invasion 
 the public safety may require it."(b) Whether this 
 writ ought to be suspended depends on political con- 
 siderations, of which the legislature is to decide. (c) 
 The proclamation of a military chief, declaring martial 
 law, cannot, therefore, suspend the operation of the 
 
 lSLW.{d) 
 
 (a) The words of the Digest which grant a writ similar to the habeas 
 corpus are, •' Ait praetor : quern liberum dolo malo retinens, exhibeas." Dig. 
 43, 29, 1. The edict of the praetor is thus conceived ; " I order you to 
 bring before me the free person whom in bad faith you detain." This 
 mandate, requiring the production of any person who was unlawfully held 
 in confinement, might be sued out by any one, it being open to every per- 
 son in favor of liberty. " Ait prsetor, exhibeas;''^ continues the Dig. 43, 
 29, 8 and 9, " exhibere est, in publicum producere, et videndi tangendique 
 hominis faoultatem prsebere. Proprie autem exhibere est, extra seoretam 
 habere. Hoc interdictum omnibus competit : nemo enin prohibendus est 
 libertati favere." The edict of the praetor says, that you exhibit. To ex- 
 Mbit a person is to produce bim in public, and put it in the powerof others 
 to see him and to touch him. To exhibit is properly not to have in secret. 
 This interdict is open to every one, because every one is entitled to it in 
 favor of liberty. 
 
 (J) Art. 1, s. 9, n. 2. 
 
 (c) Ex parte Bollman and Swartwout, 4 Cranch 101. 
 
 (d) Johnson, v. Duncan, 3 Mart. Lo. Rep. 531. 
 
92 OF PERSONS. 
 
 No. 212. Book 1, part 2, tit. 1, chap. 2, sec. 1, § 2, art. 2. No. 2U. 
 
 212. Citizens of the United States may remove 
 from the country until restrained by congress, and no 
 citizen can be compelled to return to the country, 
 except for the purpose of answering for some crime 
 committed by him. He cannot, however, cast off his 
 allegiance. 
 
 ^rt. 2.-0/ the liberty of thought. 
 
 213. The free communication of his thoughts and 
 opinions is one of the most precious rights of man : 
 every citizen may speak, write and freely print what he 
 thinks, being responsible to the law for an abuse of 
 this liberty. This is a natural right, which cannot be 
 infringed by congress. (a) 
 
 Members of congress and of the state legislatures, 
 and counsel exgaged in cases in court, may freely 
 speak whatever they think proper without being re- 
 sponsible to any one, except, perhaps, in the case of 
 counsel, where they maliciously utter slander without 
 proof or instruction from their clients. (6) The right, 
 however, does not extend beyond the mere speaking, 
 for if a member of congress were to print his speech, 
 containing libellous matter, he would be held re- 
 sponsible, (c) 
 
 214. By liberty of the press, is understood the right 
 to print and publish the truth, from good motives, and 
 for justifiable ends.((^) 
 
 The constitution provides, that no law shall be 
 made abridging the freedom of speech or of the press. («) 
 
 The abuse of the freedom of the press is punished 
 criminally by indictment — civilly, by action; for it is 
 evident, that if not restrained within proper bounds, 
 or if the publisher were not responsible for libellous 
 publications, the liberty of the press would soon be- 
 come so licentious, that it would destroy itself. On 
 
 (a) Const. Am. art. 1 {b) 3 Chit. Pr. 887. (c) Bac. Ab. Libd, B. 
 {d) People V. Crosswell, 3 John. Cas. 394. (e) Am. art. 1. 
 
OF CONSTITUTIONAL RIGHTS. 93 
 
 No. 215. Book 1, part 2, tit. 1, chap. 2, sec. 1, §3. No. 216. 
 
 the other hand, if liable to a censorship, its benefits to 
 the public would be wholly lost. 
 
 ^rt. 3. — Liberty of Conscience. 
 
 215. Happily for our country, no sect has a prefer- 
 ence ; they are all permitted k) exercise their religion 
 according to the dictates of their consciences ; and, as 
 a guarantee for this, the constitution declares that "no 
 religious test shall ever be required as a qualification to 
 any office or public trust under the United States. "(a) 
 
 To attempt to regulate the religious belief of a man, 
 under pains and penalties, is a grievous tyranny, cal- 
 culated to excite persecution and civil war. It is not 
 more reasonable to command a man to believe what 
 does not appear evident to him, than to order the eye 
 to see what it cannot perceive. Man is not to be 
 constrained in his belief; he must be enlightened, 
 convinced, and persuaded. 
 
 § 3. — Of the right to enjoy property. 
 
 216. The right to enjoy property, is the third abso- 
 lute right of man. Considered as a natural and abso- 
 lute right, it is the faculty of enjoying peaceably the 
 property which we possess, without being constrained 
 to part with it, without our consent. 
 
 Considered as a civil right, it is the faculty of ac- 
 quiring and possessing property, and of alienating it 
 as we please, either by our own contract, or by last 
 will and testament, as the law prescribes. 
 
 Property, which owes its origin to natural law, has 
 received its perfection from the civil or municipal law, 
 by which it has become permanent. This will be the 
 subject of our second book, when the origin and pro- 
 gress of property will be explained. 
 
 The right of property, includes the faculty of re- 
 ceiving that which is cast upon us by descent or suc- 
 cession, devises, legacies, and gifts ; to transmit it in 
 
 (a) Art. 6, s. 3. 
 
94 OF PERSONS, 
 
 No. 217. Book 1, part 2, tit. 2, chap. 1. No. 221. 
 
 the same way ; to acquire it by prescription, and the 
 like. 
 
 Thus this right, absolute in its origin in society, takes 
 a relative character. It is subject to almost an infinity 
 of modifications, which render it so complicated, that 
 the greatest number of disputes or contests, which 
 arise among men, have property for their object. 
 
 SECTION 2. — OF RELATIVE EIGHTS. 
 
 217. Relative rights are public or private. 
 
 § 1. — Of public relative rights. 
 
 218. Public relative rights, are those which subsist 
 between the citizens and the government, as the right 
 of protection on the part of the people, and the duty 
 of allegiance which is due by the people to the govern- 
 ment. These include the political rights, such as the 
 right of sufirage, which each citizen may exercise, and 
 that of being eligible to all offices. 
 
 § 2. — Of private relative rights. 
 
 219. Private relative rights, are so called in contra- 
 distinction to public relative rights. These are very 
 numerous, and to make a complete list, would not be 
 an easy task; among them are the reciprocal rights of 
 husband and wife, parent and child, guardian and ward, 
 master and servant ; the right of inheritance or succes- 
 sion, to receive a donation inter vivos, or by will, etc. 
 These are considered in another place. 
 
 TITLE n.— OF THE LOSS OF CIVIL RIGHTS. 
 
 220. The enjoyment of civil rights is attached to 
 the quality of citizen of the United States. This 
 quality is subject to be lost by abdication or renuncia- 
 tion of the right of citizen, or by civil death. 
 
 CHAPTER I.- OF THE LOSS OF CIVIL RIGHTS BY EXPATRIATION. 
 
 221. It is the doctrine of the English common law, 
 that a subject cannot be released from his allegiance to 
 
OF LOSS OF CIVIL RIGHTS. 95 
 
 No. 222. Book 1, part 2, tit. 3. No. 223. 
 
 the crown, without the consent of the government ; 
 and that no man can, by his own act, throw oft' the 
 duty which he owes to his native country by adopting 
 another. 
 
 In the United States, this question has not yet been 
 decided by the supreme court, but the better opinion 
 seems to be, that a citizen cannot cast ofi" his allegiance 
 without the consent of the government. (a) Yet the 
 naturalization laws require that on becoming a citizen 
 of the United States, an alien shall renounce and ab- 
 jure his former allegiance, without requiring any proof 
 that his sovereign has released him from it. 
 
 If, however, congress should by law authorize expa- 
 triation, the citizen expatriated would, by that act, 
 become an alien, and would be entiled to no other civil 
 rights than those enjoyed by an alien. 
 
 CHAPTER 11. —OF THE LOSS OF CIVIL RIGHTS IN CONSEQUENCE 
 OF JUDICIAL CONDEMNATIONS. 
 
 222. Civil death is the _state of a person who, though 
 possessing natural life, has lost all his civil rights by a 
 judicial condemnation, and is, as to them, considered 
 dead.(&) 
 
 TITLE ni.— OF THE EVIDENCE OF THE CIVIL STATE. 
 
 223. After having examined how civil rights are 
 acquired and lost, it is proper now to consider how the 
 civil state is proved. 
 
 This may be done by proof of possession, by wit- 
 nesses, by private writings and by public registers. 
 And this proof relates to the birth, marriage, or death 
 of the individual. 
 
 When written evidence, made by public authority, 
 or a register such as is recognized by law, exists as to 
 
 {a) Case of Isaac Williams, cited ia 2 Cranoh, 82, n. ; Murray v. The 
 Charming Betsey, 2 Cranch, 64 ; Talbot v. Janson, 3 DalL 133 ; The San- 
 tissima Trinidad, 7 Wheat. 283 ; Inglis v. Trustees, etc., 3 Pet. 99 ; Shanks 
 V. Dupont, 3 Pet. 242. 
 
 (b) Platner v. Sherwood, 6 Johns. C. R. 118 ; Troup v. Wood, 4 Johns 
 0. R. 228, 260 ; Co. Litt. 130 a; 1 Bl. Com. 132, 133. 
 
96 OF PERSONS. 
 
 No. 224. Book 1, part 2, tit. 4. No. 227. 
 
 the time and circumstances of the birth, marriage, or 
 death of an individual, it must be produced as being 
 the best evidence of which the case will admit, but 
 when such written evidence does not exist, parol evi- 
 dence may be given to establish those facts. 
 
 224. Proof of the birth of a child may be made by 
 giving evidence of possession. ' When a child lives with 
 his reputed father and mother, as such, proof of these 
 facts will, in general, be sufficient prima facie to esta- 
 blish the fact of his legitimacy, and that he is what his 
 condition represents him to be. His civil state may also 
 be proved by the testimony of witnesses, as where the 
 witness was present at the accouchement; or by private 
 writings, such as entries in a Bible ; or by the corres- 
 pondence of deceased members of his family. (a) It 
 may also be established by public registers, authorized 
 by law to be kept.(&) 
 
 225. The civil state of marriage is proved either by 
 direct evidence, establishing the fact, or by evidence 
 of collateral facts and circumstances, from which its 
 existence may be inferred. What is evidence for this 
 purpose will be more fully considered when we come to 
 examine what are the sufficient proofs of a marriage, (c) 
 
 TITLE IV.— OF THE DOMICIL. 
 
 226. It is in the place of his domicil, that a man 
 exercises his civil and political rights. After having 
 shown how he acquires the enjoyment of the rights 
 which constitute the civil state, and how those rights 
 are proved, it is now proper to point out the rules 
 which fix his domicil. 
 
 227. Domicil is the place where a person has estab- 
 lished his ordinary dwelling, without a present inten- 
 tion of removal. ((^) 
 
 (a) 1 Greenl. Ev. § 104 ; Phil. & Am. on Ev. 229 ; 1 Phil. Ev. 216; Doe 
 V. Griffin, 15 East, 203. 
 
 (b) Vide post, n. 311. (c) Vide post, n. 262. 
 (d) The Venus, 8 Cranch, 278 ; Thorndyke v. City of Boston, 1 Mete. 
 
 242 ; 1 Binn. 349, n. ; Foster v. HaU. 4 Humph. 346. 
 
OF THE DOMICIL. 97 
 
 No. 228. Bookl, part 2, tit. 4, chap. 1. No. 228. 
 
 A man cannot be without a domicil; at his birth he 
 acquires that of his parents, and this he retains until 
 he gains another by his choice, (a) or by operation of 
 law. 
 
 By fixing his residence at two different places at the 
 same time, a man may have, for some purposes, two 
 domicile at one and the same time; as, for example, 
 if a foreigner, coming to this country, should establish 
 two hoases, one in New York and the other in New 
 Orleans, and pass one half the year in each, he would 
 for most purposes have two domicils.(6) If a man has 
 two places of residence he may elect which shall be 
 his domicil. (c) 
 
 But it is to be observed that circumstances which 
 might be held suflBcient to establish a commercial do- 
 micil in time of war, and a matrimonial, or forensic, or 
 political domicil in time of peace, might not be such 
 as would establish a principal or testamentary domicil, 
 for there is a wide difference in ajDplying the law of 
 domicil to contracts and to wills. (c?) 
 
 There are three kinds of domicils, namely : 1, the 
 domicil of origin, domicilium originis vel naturali; 2, the 
 domicil by operation of law, or necessary domicil ; 
 3, the domicil of choice. These will be severally con- 
 sidered. 
 
 CHAPTER I.— OF THE DOMICtt OP OEIGIN. 
 
 228. By domicil of origin, is understood the home of 
 a man's parents at the time of his birth, not the place 
 where, the parents being on a visit or journey, a child 
 happens to be born. The domicil of origin is to be 
 distinguished from the accidental place of birth. (e) 
 
 (a) 1 Binn. 349, n.; Somerville d. Somervine, 5 Ves. 787; 3 Robinson, 
 191 ; Jennison v. Hapgood, 10 Pick. 77 ; Abington v. North Bridgewater, 23 
 Pick. 170. 
 
 (J) Greene v. Greene, 11 Pick. 440. See Somerville v. Somerville, 5 
 Ves. 750. 
 
 (c) Burnham v. Rangely, 1 W. & M. 7. 
 
 {d) Phill. on Dom. xx ; Greene v. Greene, 11 Pick. 410 ; Putnam v. John- 
 son, 10 Mass. 488 ; 4 Wash. 0. C. 514. 
 
 (e) Guier v. O'Daniel, 1 Binn. 349, n.; 2 B. & P. 231, n. 
 
 Vol. I. 7 
 
OF PERSONS. 
 
 No. 239. Book 1, part 2, tit. 4, chap. 2, sec. 1,2. No. 231. 
 
 CHAPTER n.— OF THE DOMIOHi ACQUIRED BY OPERATION 
 
 OF LAW. 
 
 229. There are two classes of persons who acquire 
 or retain a domicil hy operation of law. 1. Those who, 
 being under the control of another, the law gives them 
 the domicil of that other; 2, those on whom the state 
 affixes a domicil. 
 
 SECTION 1. — OP THE DOMICIL OF PERSONS UNDER THE 
 CONTROL OF ANOTHER. 
 
 230. Among those who, being under the control of 
 another, acquire such person's domicil, are — 
 
 1. The wife. She takes the domicil of her hus- 
 band, (a) On becoming a widow, she retains it until 
 she changes it, which maybe done in two ways; first, 
 by removing to another place, with an intention of fix- 
 ing her domicil there ; secondly, by marrying again, 
 in which case she immediately takes the domicil of her 
 new husband. (6) 
 
 2. A minor. His domicil is that of his father, or in 
 case of his death, that of his mother, (c) When his 
 father and mother are both dead, the minor's domicil 
 is in general that of his guardian, but to this there are 
 some exceptions.((f) 
 
 3. K lunatic. In general the domicil of the lunatic 
 is that of his guardian, curator, committee or other 
 person who is lawfully appointed to take care of him. 
 In this respect he resembles a minor. But the domi- 
 cil of such a person may be changed by direction or 
 with the assent of his guardian, either express or im- 
 plied, (e) 
 
 SECTION 2. OP THOSE ON WHOM THE STATE AFFIXES A 
 
 DOMICIL. 
 
 231. It is but reasonable that a man who serves 
 
 (a) Greene v. Gi'eene, 11 Pick. 410. 
 
 (b) Adams' Eccl. R. 519. 
 
 (c) Somerville v. Somerville, 5 Ves. 787 ; School Directors v. James, 2 
 Watts & S. 568 ; Parsonfield v. Kennebunkport, 4 Greenl. 47. 
 
 (d) School Directors v. James, 2 W. & S. 568. 
 
 (e) Holyoke v. Hoskins, 5 Pick. 20. 
 
OF THE DOMICIL. 99 
 
 No. 232. Book 1, part 2, tit. 4, chap. 3. No. 233. 
 
 the public, and is compelled for this purpose to change 
 his place of residence, should not on this account lose 
 his domicil ; for this there is a double reason, first, that 
 the pubhc should be better served ; and secondly, be- 
 cause the officer did not intend to abandon his old 
 domicil, but left it animo revertendi. 
 
 232. Persons who thus retain their domicil may be 
 classed as follows : 
 
 1. Public officers whose temporary duties require 
 them to reside at the capital, as the President of the 
 United States, the several secretaries, etc. 
 
 2. American ambassadors and consuls who are com- 
 pelled to go abroad in order to fulfil the duties of their 
 appointments. And this privilege extends to their 
 family or suite. 
 
 3. Officers, soldiers and marines of the United States 
 do not lose their domicil, while thus employed. 
 
 4. A prisoner does not acquire a domicil where the 
 prison is located, nor lose his old, because there is no 
 intention on his part to do so. 
 
 CHAPTER in.— OF THE DOMICIL OF CHOICE. 
 
 233. The domicil of origin is retained until another 
 is acquired by the act of the party, or by operation 
 of law. In order to acquire a domicil of choice, there 
 must be an actual removal with an intention of resid- 
 ing in the place to which the party has removed. (a) 
 As soon as the removal is completed, with such inten- 
 tion, the new domicil is acquired, and the old one is 
 lost.(&) 
 
 A mere intention to remove, unless such intention be 
 carried into effect, is not sufficient to operate the 
 change, (r) 
 
 When a man changes his domicil and gains another, 
 and afterward returns to his original domicil with an 
 
 (a) Jennison v. Hapgood, 10 Pick. 77 ; Cooper v. Galbraith, 3 Wash. C. 
 C. R. 546. 
 (h) 3 Wash. C. C. 546 ; Wilton v. Falmouth, 3 Shep. 479. 
 (c) Hallowell v. Saco, 5 Greenl. 143 ; State v. Hallet, 8 Ala. 159. 
 
100 OF PERSONS. 
 
 Book 1, part 2, tit. 5. No. 234. 
 
 intention to reside there, his original domicil is at 
 once restored, (a) 
 
 TITLE v.— OF ABSENTEES. 
 
 234. Having treated of the domicil, it is proper to 
 consider an absence from it, and its effects. 
 
 The law watches with care the rights of a man 
 during the whole of his life, and even before his birth, 
 while in ventre sa mere. It is to be regretted that in 
 general it is so loose on this important subject, and 
 that the questions which arise are to be decided fre- 
 quently by the opinion of the judges, unaided by any 
 statutory provision. 
 
 By absence, is sometimes meant that a person is not 
 at the place of his domicil, yet his place of residence 
 being known, or news or information having been 
 received from him, his existence is not uncertain. 
 But in a more .confined and more technical sense, 
 absence signifies that the residence of the person, who 
 is not at the place of his domicil, is unknown, and 
 that, for this reason, his existence is doubtful. It is 
 in this last sense that it is here considered. 
 
 When a person has been absent for a long time, un- 
 heard from, the law will presume him to be dead : it 
 has been adjudged, that after twenty-five years ;{6) 
 twenty years ; in another case, sixteen years ;(c) four- 
 teen years ;((^) twelve years ;(e) and seven years,(/) the 
 presumption of death arises. It seems to be agreed, 
 that after an absence of seven years, without being 
 heard from, the presumption of death is sufiicient to 
 treat the absentee's property as if he were dead; 
 though, like every other presumption, this may be 
 rebutted by showing that the absentee is alive. (g) 
 
 (a) Miller's estate, 3 Eawle, 312 ; Gallis. 274, 284 ; 5 Rob. Adm. R. 99. 
 (h) Dixon V. Dixon, 3 Brown, C. C. 510. 
 Ic) Mainwaring v. Baxter, 5 Ves. 458. 
 
 (d) Miller v. Beates, 3 S. & R. 490. 
 
 (e) King «. Paddock, 18 John. 141. 
 
 (/) Loring v. Steinman, 1 Mete. 204 ; Burr v. Sim. 4 Whart. 150 ; Brad- 
 ley V. Bradley, 4 Whart. 173. 
 (g) 1 Phil. Ev. 159 ; Smith v Knowlton, 11 N. H. Rep. 191. 
 
OF MARRIAGE. 101 
 
 No. 235. Book 1, part 2, tit. 6. No. 236.-' 
 
 In consequence of this absence and presumed death, 
 administration will be granted on his estate, and 
 guardians may be appointed to his children ; his pro- 
 perty will vest in his heirs, subject to be divested by 
 proof that the absentee is alive ; and his wife may 
 marry without being guilty of the crime of bigamy ; (a) 
 but upon his return he has the choice of retaking his 
 wife, or abandoning her to her new husband. (6) 
 
 TITLE VI.— OF MAKEIAGB. 
 
 235. Marriage owes its institution to the law of na- 
 ture, and its perfection to the municipal or civil law. 
 It is considered in this country as a civil contract sim- 
 ply, and not, as in some countries, a sacrament. 
 
 As an institution established by nature, it consists in 
 the free and voluntary consent of both parties, and in 
 the reciprocal faith which they pledge to each other. 
 As a civil contract, it not only requires the free con- 
 sent of the parties, but also that that consent shall be 
 lawful, that is, conformable to the laws of the state 
 where the contract takes place. 
 
 236. Viewed in this light, marriage is a contract, 
 made in due form of law, by which a free man and a 
 free woman reciprocally engage to live with each other 
 during their joint lives, unless it shall be lawfully dis- 
 solved within that time, in the union which ought 1(b 
 exist between husband and wife, for the purpose of 
 perpetuating their species, to assist each other, and to 
 share a common destiny as to the good or evil which 
 shall happen to them. By the terms free man and 
 free woman, here used, are meant, not only that they 
 are free, and not slaves, but also, that they are clear 
 of all bars to a lawful marriage. (c) 
 
 (a) By the English Stat. 1 Jac. I., C. 1, the wife is exempted from pun- 
 ishment, if she marry after an absence of seven years ; and the principles of 
 this statute have been adopted in the United States generally, though the 
 time is not always the same. 
 
 [i) Kenley v. Kenley, 2 Yeates, 207. 
 
 (c) Shelf, on M. & D., 0. 1, S. 1 ; Dig. 23, 2, 1 ; Ayl. Parer. 359; 
 Stair's Inst. tit. 4, s. 1. 
 
102 OF PERSONS. 
 
 No. 237. Bookl, part2, tit. 6, chap. 1, sec. 1. No. 238. 
 
 This subject will be examined by taking a rapid view 
 of, 1, the qualities required to contract marriage ; 2, 
 of the form of marriage ; 3, of the place where it is 
 made ; 4, of the proof of marriage ; 5, of void ^and 
 voidable marriages ; 6, of the effects of a lawful mar- 
 riage ; 7, of the dissolution of marriage ; 8, of second 
 marriages. 
 
 CHAPTER I.— OF THE QUALITIES OR CONDITIONS REQUIRED 
 TO CONTRACT MARRIAGE. 
 
 237. Every person arrived at the age of puberty, 
 may contract marriage, unless prevented by some legal 
 bar, or some cause which forbids such marriage. These 
 bars to marriage may be arranged into the following 
 classes : 
 
 1. Want of competent age. 
 
 2. Want of consent. 
 
 3. A former marriage subsisting. 
 
 4. Consanguinity or afiinity. 
 
 5. Want of consent of parents. 
 
 6. Civil death. 
 
 7. Crime of adultery. 
 
 SECTION 1. — OF THE WANT OP COMPETENT AGE. 
 
 238. The end of marriage is the procreation of 
 children and the propagation of the species. Before 
 arriving at puberty, persons are by nature incapable to 
 contract a lawful marriage ; because they do not possess 
 these qualities. But the age of puberty varies accord- 
 ing to climate and circumstances, and a general rule 
 must exist to establish this period. The Roman and 
 canon law fix it, in males, at fourteen; and, in females, 
 at twelve years of age. This rule has been adopted 
 by the common law. 
 
 If, therefore, a boy under fourteen, and a girl under 
 twelve years, marry, this marriage is inchoate and im- 
 perfect, and may be avoided by them on attaining their 
 respective ages. (a) 
 
 (a) 1 Bl. Com. 436. 
 
OF MARRIAGE. 103 
 
 No. 239. Book 1, part 2, tit. 6, chap. 1, sec. 2, } 1, 2. No. 241. 
 
 SECTION 2. — OF THE WANT OF CONSENT. 
 
 239. The consent of the contracting parties, and not 
 cohabitation, forms the essence of marriage : Nuptias 
 consensus, non concuhitus facit.{a) If there is no con- 
 sent, when there is only an appearance of it, the con- 
 tract is null, and may be so declared by a competent 
 tribunal. When, for example, there is, 1, a want of 
 reason ; 2, constraint or duress ; 3, mistake or fraud ; 
 or 4, fraud on account of impotency. 
 
 § 1. — Of the want of Reason. 
 
 240. The want of reason renders the party absolutely 
 incapable of giving his consent to a marriage, and 
 makes the contract invalid. (&) But, a man becoming 
 insane afterward, does not destroy the marriage, which 
 was legal when made.(c) 
 
 § 2. — Of Constraint and Duress. 
 
 241. When there has been actual or physical con- 
 straint, as where a woman is taken and carried away 
 against her will, and violence has been used and con- 
 tinues at the time of the ceremony, it is evident there 
 was no consent, and therefore, the marriage may be 
 annulled by her. 
 
 But the constraint may simply be moral and con- 
 cealed : the body may be free, but the mind con- 
 strained. This constraint may arise from bad treat- 
 ment or anterior threats, and the fear which is the 
 consequence may determine a woman against her will 
 to declare that she consents. This is a consent only 
 in appearance. If the violence amount to duress, the 
 marriage will be void ; but if the threats are not of 
 this nature, although perhaps the marriage cannot be 
 declared null on that ground, yet evidence of such acts, 
 
 (a) Dig. 50, 17, 30 ; Id. 35, 1, 15 ; Co. Litt. 33. 
 
 (*) 1 KoU. Ab. 357 ; Middleborough v. Rochester, 12 Mass. 363 ; Clement 
 V. Matison, 3 Rich. 93. 
 (c) Dig. 23, 1, 8, and 2, 16 ; 1 Bl. Com. 438, 439. 
 
104 OF PERSONS. 
 
 No. 242. Book 1, part 2, tit. 6, chap. 1, sec. 2, §3. No. 243. 
 
 it is presumed, would be evidence of fraud, and, on this 
 ground, the marriage might be declared void. (a) 
 
 Reverential fear, such as that of displeasing a pas- 
 sionate father, is not sufficient to cause the marriage 
 to be annulled. There must be an actual and present 
 fear : Metum prcBsentem esse oportet, non suspicionem in- 
 ferendi ejus.(b) 
 
 The constraint, too, must have had the marriagerfor 
 its object. For example, a powerful and violent 
 neighbor threatens you with death ; to appease him, 
 you offer him your daughter in marriage, and she 
 consents to marry him to save your life; the marriage 
 would not be null for want of consent, because the 
 threats had nothing to do with the proposed mar- 
 riage, (c) 
 
 § 3. — Of Error and Fraud as to the Persons. 
 
 242. When any contract is made, and the subject 
 matter of such contract is mistaken by one of the par- 
 ties in consequence of the fraud of the other ; as if a 
 man professing to sell me paint, shows me an article 
 which has all that appearance, and in consequence of 
 his fraud in concealing its true character, I am de- 
 ceived, and instead of paint he sells me an article 
 which is not paint, I may avoid the sale.(d) 
 
 So there is no valid consent if, intending to marry 
 Mary, I marry Sarah, through the concealment or the 
 fraud of the latter. It is almost impossible to give an 
 example of a marriage where, in modern times, there 
 has been a physical mistake as to the person, yet a 
 case has been recorded where it occurred, (e) 
 
 243. An error of this kind can scarcely fall on any 
 thing except the moral or social condition of the per- 
 son. It may be observed generally, that when the 
 error falls only on some advantages of fortune, or some 
 
 (a) 2 Greenl. Ev, § 464. (b) Dig. 4, 2, 9. 
 
 (c) Boehmer, Jus Ecclesiasticum Prot., in tit. de Spons. ^ 139. 
 
 (d) Borrekinsi). Bevan, 3 Rawle, 26 ; Jennings v. Gratz, 3 Rawle, 168. 
 
 (e) Gen. zxik. 23. 
 
OF MARRIAGE. 105 
 
 No. 244. Book 1, part 2, tit. 6, chap. 1, see. 3. No. 246. 
 
 moral qualities of the party, it is no cause for annulling 
 the marriage; as, if believing Mary to be rich and vir- 
 tuous I married her, and afterward ascertained she 
 was poor and vicious, the marriage would still be 
 good. (a) 
 
 244. A grave question might be raised in a case 
 where a woman by fraud, had induced a man to marry 
 her in a free state, by making him beheve she was 
 free, when in fact she was, at the time of the marriage, 
 a slave in another state. The marriage would proba- 
 bly be attacked on the ground that the slave could 
 not make such a contract, yet, being in a free state, 
 she could not be considered there as a slave, (&) and if 
 the contract is vaUd where made, it is in general good 
 every where. (c) 
 
 § 4. — Want of Consent on account of Fraud in relation to 
 Impotency. 
 
 245. By impotence is meant the incapacity for copu- 
 lation or propagating the species. It has been used 
 synonymously with steriUty. 
 
 Impotence is curable or incurable ; when it is cura- 
 ble it is no cause either for declaring the marriage null 
 or for a divorce ; when it is incurable it may be good 
 cause for a divorce, but the marriage is not for that 
 cause void ab initio.{d) 
 
 SECTION 3. OF A FORMER MARRIAGE SUBSISTING. 
 
 246. A subsisting marriage is a complete bar to a 
 new one.(e) The person who would marry a second 
 time pending the first marriage would be guilty of 
 bigamy, and punishable criminally as such, unless he 
 or she proved that the second marriage was contracted 
 
 (a) See 2 Hagg. Cons. R. 248 ; Benton v. Benton, 1 Day, 111. 
 (J) Prigg «. Pennsylvania, 16 Pet. 539. 
 (e) Story, Confl. of Laws, <j 121. 
 
 (d) See Bac. Ab. Marriage, etc., E 3 ; 1 Bl. Com. 440 ; Com. Dig. Baron 
 and Feme, (C 3) ; Beck's Med. Jur. 67 ; Code 5, 17, 10. 
 
 (e) Sellers v. Davis, 4 Yerg. 503 ; Jones v. The State, 5 Blackf. 141. 
 
106 OF PERSONS. 
 
 No. 247. Book 1, part 2, tit. 6, chap. 1, Bee. 4. No. 249. 
 
 in good faith. This takes place when the husband or 
 wife has been absent for seven years without being 
 heard from, as has already been observed. («) But as 
 the marriage cannot be dissolved by mere absence, the 
 husband may, at any time afterward, declare such 
 second marriage null.(6) The absence merely purges 
 the felony. 
 
 SECTION 4. OF THE BAR OF CONSANGUINITY AND AFFINITY. 
 
 247. Consanguinity or kindred is the relation subsist- 
 ing among all the different persons descending from 
 the same stock or common ancestor. (c) 
 
 The series' of persons who have descended from a 
 common ancestor, placed one under the other in the 
 order of their birth, is called a /me. The line con- 
 nects successively all the relations by blood to each 
 other. 
 
 248. There are two lines, the direct and the colla- 
 teral. The following paradigm will explain the dicect 
 line. 
 
 ( 9 Great grandfather. 
 
 Ascending line, | ©Grandfather. 
 
 ^ « Father. 
 
 oBgo. 
 
 , J>Son. 
 
 Descending line, | o Grandson. 
 
 ^ o Great grandson. 
 
 The direct line is divided into two parts: the ascend- 
 ing line, which, commencing at ego the propositus 
 takes in the father, grandfather and great grandfather ; 
 and the descending line is that, which, counting from 
 the same person, descends to his son, grandson and 
 great grandson. 
 
 249. The collateral line is a series of persons who 
 descend from a common ancestor. It is called col- 
 
 (a) Ante, B. 1, part 2, t. 5. 
 
 (i) Kenley v. Kenley, 2 Yeat. 207 ; Fenton v. Fenton, 4 John. 52. 
 
 (c)2Bl. Com. 202. 
 
OF MARRIAGE. 107 
 
 No. 250. Book 1, part 2, tit. a, chap. 1, see. 4. No. 252. 
 
 lateral, quisa d latere, because it is composed of two 
 direct lines which descend along side of each other in 
 setting out from the common ancestor, which is the 
 point of their union, as in the following example : 
 
 Common q ancestor. 
 
 o o 
 
 Direct bne, | | Collateral line. 
 
 o o 
 
 Ego, O o 
 
 250. A degree of kindred is the distance which exists 
 between two of the nearest relations. The degrees 
 are counted by the number of generations, in such a 
 way that there are as many degrees as there are per- 
 sons born, either in a direct or collateral line. 
 
 The word degree of kindred is a metaphorical ex- 
 pression, borrowed from the genealogical figures on 
 which kindred were represented. Formerly the form 
 of a stairs (gradus) or a ladder was given to this table. 
 
 251. Affinity or alliance is a connection formed by 
 marriage, which places the husband in the same degree 
 of nominal propinquity to the relations of the wife, as 
 that in which she herself stands to them, and gives to 
 the wife the same reciprocal connection with the rela- 
 tions of the husband : so that there is an affinity or 
 alliance between the relations of the wife and the hus- 
 band, and vice versd. This will appear by the follow- 
 ing paradigms : 
 
 <5 My vrife's father, 
 
 Ego o i My wife, I ^^ ^■^^,^ ^^^^^^ 
 
 I My wife's niece, 
 
 are all allied to me. 
 
 My o father. My ^ wife's father, ) My brother and 
 
 I I ! my wife'.s sister 
 
 I I I I ( are not allied to 
 
 My brother, ° Ego ° "Mywife,* My wife's sister, J each other. 
 
 252. The bars to marriage may be classed as fol- 
 lows : 
 
108 OF PERSONS. 
 
 No. 253. Book 1, part 2, tit. 6, chap. 1, see. 5, 6, 7. No. 255. 
 
 1. Those "whicli subsist because there is a consan- 
 guinity in a direct line. Ascendants and descendants 
 are not permitted to marry with each other. This 
 rule is founded in nature, and perhaps in no nation 
 are such marriages allowed. 
 
 2. Those which subsist because there is a collateral 
 kindred between the parties ; as between the brother 
 and sister, the uncle and the niece,(a) but it is not 
 easy to say what are the estabUshed degrees within 
 which collaterals cannot marry in the several states, 
 and there are distinctions among them. (6) 
 
 3. Those where there is a near affinity between the 
 parties. In some states the marriage of a man to bis 
 sister-in-law has been dissolved for that cause,(c) 
 while in others such marriage would be valid. ((Z) 
 
 SECTION 5. OF THE WANT OF CONSENT OF PARENTS. 
 
 253. In general the consent of parents is not re- 
 quired in order to give validity to a marriage. In 
 some states there are provisions giving a right to the 
 father to sue for a penalty the clergyman or magistrate 
 who shall marry his minor child. (e) 
 
 It is to be regretted that paternal authority is not 
 more respected, for whenever that is disregarded other 
 duties are neglected. 
 
 SECTION 6. OF CIVIL DEATH. 
 
 254. A person who is civilly dead, having no capa- 
 city to make a contract, of course cannot marry. 
 
 SECTION 7. OF THE CRIME OF ADULTERY. 
 
 255. By the Roman law, which has been adopted 
 in some of the United States, a person who had com- 
 
 (a) Burgess v. Burgess, 1 Hagg. Cons. R. 384, 386. Sed vide Sutton 
 V. Warren, 10 Met. 451. 
 
 (b) 2 Kent, Com. 83 ; Harrison v. Burwell, Vaugh. 206 ; S. C. 2 Vent. 
 9 ; Butler v. Gastrell, Gilb. Eq. R. 156 ; Story, Confl. of Laws, ? 115, n. 
 
 (c) Comm. V- Ferryman, 2 Leigh's R. 717. 
 {d) Story, Confl. of Laws, § 115. 
 
 (e) 2 Kent, Com. 86. 
 
OF MARRIAGE. 109 
 
 No. 256. Boole 1, part 2, tit. 6, chap. 2, see. 1. No. 257. 
 
 mitted adultery, and for this cause was divorced, at 
 the suit of the innocent party, could not afterward 
 marry the partner of his or her guilt. (a) But if, to 
 evade the law, he is married in a state where such 
 marriage is valid, and he returns to his own state, the 
 marriage cannot be impeached on that ground. (6) 
 
 CHAPTER II.— OF THE FORM OF MARRIAGE. 
 
 256. Various forms have been adopted in the several 
 states, and they have, each, received the sanction of 
 the courts. And though in perhaps all the states of 
 the Union, there are statutes regulating the celebration 
 of the marriage rites, and inflicting penalties on all 
 who disobey their injunctions, yet, in general, it may 
 be stated, that in the absence of a positive statute, de- 
 claring that a marriage not celebrated in the manner 
 it prescribes, shall be absolutely void, or that none 
 but certain designated persons shall solemnize a mar- 
 riage, any marriage regularly made according to the 
 common law would be valid, although the regulations 
 of the statute may not have been observed. (c) These 
 will be briefly considered by taking a view of, 1, the 
 persons before whom the marriage is to take place; 
 2, the form or ceremony to be used. 
 
 SECTION 1. OF THE PERSONS BEFORE WHOM THE MARRIAGE 
 
 MUST TAKE PLACE. 
 
 257. Marriage being but a civil contract, it may be 
 entered into, by the common law, before a magistrate, 
 a clergyman, or simply before witnesses. It is not 
 indispensable that a clergyman should be present. 
 Among some of the religious sects, the Quakers for 
 example, the only persons present are the witnesses, 
 who are generally the guests at the wedding. In some 
 
 (a) 1 TouU. n. 555 ; Act of Pennsylvania of 13th March, 1813. 
 
 (b) Putnam v. Putnam, 8 Pick. 433. See Phillips v. Gregg, 10 Watts, 168. 
 
 (c) 2 Kent, Com. 91, 92 ; Hantz v. Sealey, 6Binn. 405 ; Milford v. Wor- 
 cester, 7 Mass. 48, 55 ; Londonderry v. Chester, 2 N. H. R. 268 ; Reeves, 
 Dom. Rel. 196, 200, 290 ; The State v. Murphy, 6 Ala. 765. 
 
110 OF PERSONS. 
 
 No. 258, Book 1, part 2, tit. 6, chap. 3. No. 260. 
 
 of the states, certain persons have been designated 
 who are authorized to marry. 
 
 SECTION 2. OF THE FORM OE CEREMONY TO BE USED. 
 
 258. No particular /or»» is requisite, but the parties 
 must take each other for husband and wife, in the pre- 
 sent tense. The consent of the parties is all that is 
 requisite, and as marriage is a contract jure gentium, 
 that consent is all that is needful by natural or public 
 law. If the contract be made per verba de presenti, 
 though not consummated by cohabitation, or if made 
 per verba de futuro, and followed by consummation, it 
 will be a good marriage, unless prohibited by positive 
 regulations to the contrary. (c) 
 
 259. A promise to marry at a future time, cannot 
 be construed into a marriage, though it may afford an 
 action for its breach. 
 
 On the same principle, a declaration of marriage, 
 however distinctly applicable to the present time, if it 
 incorporate words which make it conditional, would 
 probably be considered as insuflScient; as where the 
 man wrote to the woman thus : " You and I having 
 lived together as man and wife for some time, I here- 
 by declare you to be my lawful wife, in the event of a 
 child being born in consequence of the present connection 
 between us." This was held to be no marriage by the 
 laws of Scotland, on the ground that there was no 
 present engagement. (&) 
 
 CHAPTER m.— or THE PLACE WHERE THE CONTRACT OF 
 MARRIAGE IS MADE. 
 
 260. As a general rule, a marriage which is valid 
 by the law of the place where it is celebrated, is good 
 everywhere ; if invalid there, it is invalid every- 
 where, (c) 
 
 (a) Eenton v. Reed, 4 John. 52 ; Jackson v. Winne, 7 Wend. 47 ; 2 Kent, 
 Com. 87 ; 2 Greenl. Ev. ^ 460 ; Cram v. Bumham, 5 Greenl. R. 213 ; Bao. 
 Ab. Marriage, A ; Hants v. Sealy, 6 Binn. 405. 
 
 (b) Burton's Man. of the Laws of Scotl. Priv. Rights, c. 1, s. 1. 
 
 (c) Story Confl. of Laws, § 113 ; 2 Kent, Com. 92 ; Morgan v. McGheS, 
 5 Humph. 13 ; Phillips v. Gregg, 10 Watts, 158. 
 
OF MARRIAGE. Ill 
 
 No. 261. Book 1, part 2, tit. 6, chap. 4. No. 263, 
 
 261. But to this rule there are several exceptions : 
 
 1. Incestuous mamages would not be holden good in 
 any of the United States. But the incest must be 
 such as is generally understood to be so, at least by 
 Christian states. And a person who married two 
 wives, where polygamy is allowed, would not be con- 
 sidered as having contracted a legal marriage with 
 the second. (a) 
 
 2. When the positive law of the country prohibits 
 such marriage. But it was holden in a case in Massa- 
 chusetts, (6) that when the parties left the state for the 
 purpose of evading the statute law, and of marrying 
 in opposition to it, and, being married, returned to it, 
 the marriage was deemed valid, if valid according to 
 the laws of the place where it was made. 
 
 3. Where, in cases of necessity, a marriage is cele- 
 brated, not according to the laws of the country where 
 it takes place, but according to the laws of the country 
 of the parties; as, for example, where persons reside 
 in factories, in conquered places, or in desert or bar- 
 barous countries, or in countries of an opposite reli- 
 gion. In these cases such contract is held valid on 
 the ground of necessity. (c) 
 
 CHAPTER IV.— OF THE PROOF OP MARRIAGE. 
 
 262. It is usual for a magistrate or clergyman, who 
 ofl&ciates at the making of the marriage, to make a 
 record of it, and also to give a certificate of it, signed 
 by himself, to the parties. In those religious societies, 
 also, where marriages take place without the agency 
 or presence of a magistrate or clergyman, a record of 
 them is kept, and a certificate, signed by the parties 
 and the witnesses, is delivered to the former. 
 
 263. Marriage may be proved either by direct testi- 
 mony or by the evidence of facts, from which it may 
 
 (a) Story, Oonfl. ^ 114 
 
 (b) Medway t>. Needham, 16 Mass. 157; Putnam v. Putnam, 8 Pick. 
 433, S. P. But see Williams v. Oates, 5 Iredell, 535, contra. 
 
 (c) Story, Oonfl. ^ 118. See Ruding v. Smith, 2 Hagg. Cons. R. 371, 
 884 ; Latour v. Teesdale, 8 Taunt. 830. 
 
112 OF PERSONS. 
 
 No, 284. Book 1, part 2, tit. 6, chap. 4. No. 269. 
 
 be inferred. (a) Evidence of this kind is indispensable 
 upon the trial for bigamy or for adultery, and in 
 actions for criminal conversation. In such cases, the 
 marriage must be proved to have been valid in all 
 respects, for, without this proof, there is no evidence of 
 guilt. (6) 
 
 264. The afl&rmative sentence or judgment of a 
 court having jurisdiction of the question of marriage 
 or no marriage, is conclusive evidence of the mar- 
 riage, as res judicata.{c) 
 
 265. Proof by witnesses present at the celebra- 
 tion, ((^) or by an examined or certified copy of the 
 register of the marriage, when such register is re- 
 quired by law, with proof of the identity of the par- 
 ties, is sufficient. 
 
 266. In civil causes, other than actions for seduc- 
 tion, marriage may also be proved by reputation, the 
 declarations and conduct of the parties, and other cir- 
 cumstances usually attending that relation. (e) 
 
 267. General reputation is admissible to prove the 
 fact of marriage of the parties spoken of.(/) 
 
 268. Declarations by the parties made ante litem mo- 
 tam, may be given in evidence to prove a marriage. (g) 
 
 269. The conduct of the parties may also be given 
 in evidence to prove a marriage. It is competent for 
 the party on whom the afiirmative of the issue lies, 
 to show the conduct of the parties, their conversations 
 and letters, addressing each other as man and wife ;(/i) 
 their appearing in respectable society, and there 
 being received and considered as husband and wife; 
 the assumption by the woman of the name of the 
 
 (a) .Jewell's Lessee v. Jewell, 1 How. U. S. 219 ; s. c. 17 Pet. 213 ; 
 Weaver v. Oryer, 1 Dev. 337 ; Taylor v. Shemwell, 4 B. Munr. 575. 
 lb) The State v. Hodgskins, 1 App. 155. 
 
 (c) 1 Greenl. Ev. § 484, 493, 544, 545. 
 
 (d) Comm. v. Norcross, 9 Mass. 492 ; Comm. v. Littlejohn, 15 Mass. 163. 
 
 (e) Senser v. Bower, 1 Pennsyl. 452. 
 
 {Jl Evans v. Morgan, 2 C. & J. 455 ; Weaver v. Cryer, 1 Dev. 837 ; 
 Taylor v. Shemwell, 4 B. Monroe, 575 ; Selser v. Bower, 1 Pennsyl. 450. 
 (g) Jackson v. Clan, 18 John. 346 ; Forney v. Hallacher, 8 S. & fi. 159. 
 (h) Alfray v. Alfray, 2 PhUl. Ecc. R. 547. 
 
OF MARRIAGE. 113 
 
 No. 270. Book 1, part 2, tit. 6, chap. 5, Beo. 1. No. 273. 
 
 man ;(a) and any other such conduct. Their cohabi- 
 tation as husband and wife is presumed to be lawful 
 until the contrary appears. (6) 
 
 270. When a contract in writing is essential to the 
 marriage, either in consequence of some public law or 
 of some rule of the religious community to which the 
 parties belong, and when in fact the contract has been 
 reduced to writing, though it was not required, such 
 writings are admissible to prove the marriage. And 
 a certificate of marriage, though ordinarily not in 
 itself evidence of the fact it recites, yet if properly 
 kept^ and produced from the proper custody, may be 
 read as collateral proof, (c) 
 
 271. After the death of the parties, or of either of 
 them, the marriage cannot be avoided, (</) and after a 
 lapse of thirty years and the death of all the parties, 
 legitimacy will be presumed on sUght proof, (e) 
 
 CHAPTER v.— OF VOID AND VOmABLE MAKRIAGES. 
 
 272. Marriage produces different effects toward the 
 spouses and their issue, when it is void, from those 
 which are produced when it is merely voidable. A 
 void marriage is one which is as if it had not been 
 made, the spouses receive no benefit whatever and 
 acquire no right from it, and their issue is illegitimate. 
 A voidable marriage is one which, for some defect, may 
 become void ; but, till it is attacked on that ground, it 
 is good. 
 
 SECTION 1. OF VOID JURRIAGES. 
 
 273. Marriages are void on account of some radical 
 vice, which cannot be cured. These defects may be 
 classed as follows : 
 
 1. When they violate a law of nature, as marriages 
 
 (a) Habbaok, Bv. of Succession, 247. 
 
 (b) Telts V. Foster, 1 Tayl. 121 ; Allen v. Hall, 2 N. & M. 114. 
 
 (c) Habback Ev. of Succession, 258 ; 2 Greenl. Er. ^ 463. 
 
 (d) Co. Litt. 33 a ; 1 Bl. Com. 434 ; Bouham v. Badgley, 2 Gilman, 622. 
 
 (e) Johnson v. Johnson, 1 Desaus. 595. 
 
 Vol. I. 8 
 
114 OF PERSONS. 
 
 No. 274. Book 1, part 2, tit. 6, chap. 6, sec. 1. No. 876. 
 
 between lineal lascendants and descendants, as between 
 father an,d daughter. 
 
 2. When the spouses are related to each other 
 within any other degree of consanguinity forbidden by 
 law. {a) 
 
 3. When an act of assembly or other legislative act 
 declares them void.(b) 
 
 4. When both or either of the parties are wholly 
 incapable of consenting; as in the case of a lunatic. (c) 
 
 5. When either of the parties is married at the time 
 of such marriage. (<f) 
 
 6. When the marriage is tainted with /rflMC?.(e). 
 
 SECTION 2. OF VOIDABLE MAKRIAGES. 
 
 274. A voidable marriage is one which has some 
 force and effect, but which, on account of some inherent 
 quality, may be annulled and avoided ; as, where a 
 minor under fourteen years of age marries, he may 
 avoid the marriage on coming of age ; but if he sanc- 
 tions it, after that period, it will be valid, and cannot 
 afterward be impeached on that ground. 
 
 CHAPTER VI.— OF THE RIGHTS AND DUTIES ARISING PROM 
 MARRIAGE. 
 
 275. This chapter will be divided into three sections : 
 in the first will be considered the rights and duties of 
 the husband ; in the second, the rights and duties Of 
 the wife ; in the third, their obligations toward their 
 children, and their rights to them. 
 
 SECTION 1. OF THE RIGHTS AND DUTIES OF THE HUSBAND. 
 
 276. Persons who marry, contract by the marriage, 
 reciprocally toward each other, the obligation to live 
 together during the existence of the marriage ; and 
 they may be considered, in some sense, as one indivi- 
 
 (a) Moore v. Whitaker, 2 Hairing. 50. 
 
 \b\ The State v. Hooper, 5 Ired. 201. 
 
 (e) Wrightman v. Wrightman, 4 John. 343. 
 
 (d) Sellers v. Davis, 4 Yerg. 503 ; Jones v. The State, 5 Blackf. 141. 
 
 (e) Scott V. Shufeldt, 5 Paige, 43. 
 
OF MARRIAGE. 115 
 
 No. 277. Book 1, part 2, tit. 6, chap. 6, sec. 1, ^ 1. No. 277. 
 
 dual ; Erimt duo in came una.{a) For this reason the 
 very being of the wife is, for most purposes, merged 
 in that of her husband, and it is under his protection 
 and cover that she performs every thing; hence she is 
 called a feme covert, and her state during the marriage 
 is denominated coverture. (b) 
 
 § 1. — Of the obligations of the husband. 
 
 277. He is bound to receive his wife at his home 
 and treat her there as a husband should do, that is, 
 furnish her with all the necessaries and conveniences 
 which his fortune enables him to do, and which her 
 situation requires; but this does not include such 
 luxuries as, according to her fancy, she deems neces- 
 saries, (c) 
 
 By the term necessaries is meant all such things as 
 are proper and requisite for the sustenance of man. 
 Whenever the husband by his misconduct has obhged 
 his wife to take up necessary things on credit, he must 
 pay for them, though he may have previously warned 
 the tradesman not to trust her ; but if her own mis- 
 behavior has reduced her to want, he cannot be 
 charged, unless the things furnished, other than the 
 necessaries of life, are not sent back when he has it in 
 his power to return them, although he may not then 
 be living with h.ev.{d) 
 
 It is his duty to love his wife, and to bear with her 
 faults, and, if possible, by mild means to correct them, 
 arid he is required to fulfil toward her his marital 
 promise of fidelity, and can, therefore, have no lawful 
 carnal connection with any other woman, without a 
 violation of his obligations. 
 
 As he is bound to govern his house properly, he is 
 liable for its misgovernment, and he may be punisljed 
 for keeping a disorderly house, where his wife had the 
 
 (a) 1 Bl. Com. 442 ; Co. Litt. 112. 
 
 (h) 1 Bl. Com. 442. 
 
 (c) 1 Hagg. 35 ; S. C. 4 Bccl. R. 411, 312. 
 
 {d) Waithmanw. Wakefield, 1 Campb. 120. 
 
116 OF PERSONS. 
 
 No. 278. Book 1, part 2, tit. 6, chap. 8, sec. 2, { 1. No. 279. 
 
 principal agency ; and he is liable for her acts, as for 
 her slander or trespass. 
 
 He is also liable for his wife's debts incurred before 
 coverture, provided they are recovered from him during 
 their joint lives ; and, generally, for such as are con- 
 tracted by her during coverture. In this latter case 
 she is presumed to act as his agent. 
 
 § 2. — Of the rights of the husband. 
 
 278. Being the head of the family, the husband has 
 a right to establish himself wherever he may please ; 
 in this he cannot be controlled by his wife ; and he 
 may manage his affairs in his own way. He may 
 make whatever contracts may suit him, and acquire 
 and sell property. His real estate, however, will be 
 liable for his wife's dower, unless she releases it accord- 
 ing to certain prescribed forms. 
 
 During a barbarous age, the husband had the power 
 to correct or whip his wife, in order to bring ier into 
 subjection; this is now considered unlawful in some, 
 and perhaps all the states of the Union. (a) 
 
 SECTION 2. OF THE BIGHTS AND OBLiaATIONS OF THE WIFE. 
 
 § 1. — Of the obligations and liabilities of the wife. 
 
 279. The wife is bound to love her husband, to be 
 faithful to him, to do all in her power to promote their 
 common interest, to perform toward him all the mari- 
 tal duties. She is bound to follow him wherever he 
 may desire to establish himself within the United 
 States, (&) unless by acts of injustice, or such as are 
 contrary to his marital duties, the husband renders her 
 life or happiness insecure. 
 
 She is not liable to pay any obligations she enters 
 into during the coverture, either for purchases, or for 
 the payment of any money. (c) When she makes a 
 
 (a)SeelBl. Com. 444. 
 
 (b) Chretien v. Her Husband, 5 N. S. 60. 
 
 (c) Jackson v. Vanderheyden, 17 John. 167. 
 
OF MARRIAGE. 117 
 
 No. 280, Book 1, part 2, tit, 6, chap. 6 sec. 3, 5 1. No, 283. 
 
 contract for necessaries she is presumed to act by 
 authority of her husband, and he alone is liable for 
 them. 
 
 ' 280. When she commits a criminal act, she is 
 responsible as any other person, unless in cases where 
 the crime is not malum in se, and it is committed in the 
 presence of her husband, (a) But if it appear she acted 
 independently of him, she will be responsible even in 
 such a case. (6) 
 
 She is liable for her torts, as though she were not 
 married ; as trespass, slander, and the like. 
 
 § 2. — Of the rights of the wife. 
 
 281. She has a right to the love and affection of her 
 husband, to such part of his fortune as may be neces- 
 sary and proper, taking his circumstances into con- 
 sideration, (c) But this is only upon the condition that 
 she fulfil her own duties ; for, if she were to elope 
 with another man, she would not be entitled to his 
 alimony, ((f) 
 
 SECTION 3. OP THE DUTIES OF PARENTS TOWARD THEIR 
 
 CHILDREN. 
 
 282. The duties of parents toward their children 
 vary according to the fact whether they are legitimate 
 or illegitimate. These will be separately considered. 
 
 § 1. — Of legitimate children. 
 
 283. A legitimate child is one who is bom in lawful 
 wedlock, or within a competent time afterward. It 
 is a principle of the common law, that when a child is 
 born during the coverture of his mother, her husband 
 is presumed to be the father : Pater is est quern nuptice 
 
 (a) Eosc. Or. Ev. 785 ; Comm. v. Neal, 10 Mass. 152 ; Martin v. Comm., 
 1 Mass. 347 ; Oomm. o. Trimmer, 1 Mass. 476. 
 
 (J) Hale, P. 0. 516; 1 Buss, on Cr. 16, 20; State v. Collins, 1 McCord, 
 355 ; Jones v. State, 2 Blackf. 484. 
 
 (c) Bascom v. Bascom, Wright, R. 632 ; Chnnni'. Chunn, 1 Meigs, 131. 
 
 (d) Holmes v. Holmes, Walker, 474. See Daily v. Daily, Wright, 514. 
 
118 OF PERSONS. 
 
 No. 284. Book 1, part 2, tit. 6, chap. 6, sec. 3, § 1. No. 285. 
 
 demonstrant .(a) But this presumption may be re- 
 butted. (&) 
 
 284. The principal obligations which parents owe 
 their children are their maintenance, their protection, 
 and their education. 
 
 1. Parents are bound to maintain their children. 
 In the first place will be considered who is bound ; 
 secondly, what the maintenance shall be; and, thirdly, 
 when it shall cease. 
 
 First, the obligation to maintain children arises 
 from one of the first laws of nature, which the civil 
 law seconds and sanctions. This right of support, and 
 the duty corresponding to it, extend to the father, 
 grandfather, mother, and grandmother and other 
 ascendants. If neglected, this duty wUl be enforced 
 by the courts, provided the parties are of sufficient 
 ability, (c) 
 
 Secondly, the obligation of parents to support their 
 children extends to the necessaries of life, including 
 food, lodging and clothing, in a just proportion between 
 the wants of the child and the ability of the parents. 
 Nothing fixed or certain' can be demanded ; there is 
 always something relative in ascertaining the amoimt 
 due. 
 
 Thirdly, the extent of the obligation. No parent 
 is bound to provide a maintenance for his issue, unless 
 the children are impotent and unable to work, either 
 through infancy, disease or accident. Hence it fol- 
 lows, that when a child has attained an age sufficient 
 to support himself, has been restored to ability, or has 
 been cured from disease, the parents are no longer 
 bound to support \ani.{d) 
 
 285. — 2. A parent is bound to protect his children, 
 
 (a) 1 Bl. Com. 446; Tate v. Penne, 7 N. S. 548, 553. 
 (J) Commonwealth v. Shepherd, 6 Binn. 283 ; 1 Browne's R. Appx. 
 xlvii. See post B. 1, part 2, t. 7, c. 1. 
 
 (c) Hillsboro' v. Deering, 4 N. Hamp. E. 86 ; Harland's case, 5 Rawle, 
 
 (d) 1 Bl. Com. 449. 
 
OF MARRIAGE. 119 
 
 No. 286. Book 1, part 2, tit. 6, chap. 6, sec. 3, § 2, art. 1, 2. No. 289. 
 
 but this duty is so well enforced by the law of nature, 
 that it requires but little aid from the civil law. A 
 parent may justify an assault and battery in defence 
 of his child, and he may uphold his children in their 
 quarrels and lawsuits, without incurring the guilt or 
 punishment of the crime of maintenance. 
 
 286. — 3. The education of children is not enforced 
 by the civil or municipal law. Nature has implanted 
 in the human breast a strong desire to see children 
 prosperous and happy, and it is owing to this that 
 parents spend so much time and money to educate 
 their children. Besides, by the laws of many of the 
 states, the people are educated at the pubUc expense. 
 
 § 2. — Of illegitimate children. 
 
 287. This head wiU be divided by considering, 1, the 
 legal duties of parents toward such children ; and 
 2, the rights and incapacities of such children. 
 
 ^rt. 1. — Of the legal duties of parents toward illegitimate 
 children. 
 
 288. The parent of a bastard child is bound to 
 maintain him during his childhood, until he can main- 
 tain himself; on a failure to do so, the public authori- 
 ties, guardians or overseers of the poor, or by what- 
 ever name they may be known, can, under the statute 
 regulations in the several states, institute proceedings 
 against the parent, who is known as the putative fa- 
 ther. (a) 
 
 Art. 2. — Of the rights and incapacities of illegitimate children. 
 
 289. The rights of bastard children are very few, 
 being principally such as they acquire. They are, as 
 has been before observed, entitled to maintenance, but 
 they can inherit nothing, being considered as nullius 
 filius. This harsh rule has been somewhat modified in 
 
 (a) Bac. Ab. Bastardy, (E.) Bouv. ed. 
 
120 OF PERSONS. 
 
 No. 290. Book 1, part 2, tit. 6, chap. 7, sec. 1, 2. No. 292. 
 
 some states. («) A bastard may gain a name by repu- 
 tation, though he has none by inheritance. In general, 
 the place of his domicil of origin is that of his mother. 
 
 CHAPTER Vn.— OF THE DISSOLUTION OF THE MARRIAGE. 
 
 290. The contract of marriage is dissolved by death, 
 natural or civil, and by divorce. 
 
 SECTION 1.— OF THE EFFECTS OF DEATH. 
 
 291. Death has the effect of dissolving the mar- 
 riage ; for, by its very terms, it was to continue only 
 till that change should take place. On the death 
 of one party, the other is free to marry again ; but 
 decency requires that no marriage should take place 
 tiU at least the end of one year ; and, in the case of 
 women, this time is absolutely requisite in order that 
 it may be known who is the father of any child she 
 might have. 
 
 With regard to property, the real estate of the wife 
 and her choses in action are restored to her on the 
 death of her husband; and she has a dower in his real 
 estate, of which he was seised. On her death, her 
 real estate descends to her heirs, unless, under a power, 
 she has made a will devising it, subject to her hus- 
 band's right by curtesy, when he is entitled to it. 
 
 On the death of the wife, the liability of the hus- 
 band, to be sued for her debts, dwn sola, ceases ; and 
 on the death of the husband his representatives are 
 not liable for such debts. 
 
 SECTION 2. — OF DIVORCES. 
 
 292. In its most extensive sense, the word divorce 
 signifies the lawful separation of husband and wife : 
 
 (a) In Connecticut the bastard child inherits the mother's real estate, 
 Heath v. White, 5 Conn. 228 ; and bastard children of the same mother, 
 inherit from each other. Brown v. Dye, 2 Root, 280 ; and the same just 
 rule is established in Kentucky, by statute, 3 Dana, 233 ; and in Massa- 
 chusetts, Rev. St. oh. 61, §^ 2 and 3. In Virginia, and in Louisiana, a bas- 
 tard child, acknowledged by his parents, who have since intermarried, is 
 put on the same footing with children bom in wedlock. Rice v. EfFord, 3 
 H. &M. 225 ; Civ. Code of Lo., art. 913. 
 
OF MARRIAGE. 121 
 
 No. 293. Book 1, part 2, tit. 6, chap. 7, oec. 2, § 1, art. 1. No. 29*. 
 
 Divortium a diversitate mentium dictum est, quia in 
 diversas partes sunt qui distrahunt matrimonium.{a) 
 
 There are two kinds of divorce, namely, d mens& et 
 thoro, which merely separates the parties, without 
 destroying the contract ; and the divorce which severs 
 the tie, quoad fcBdus et vinculum which is a dissolution 
 of the marriage contract : this is commonly called a 
 divorce d, vinculo matrimonii. 
 
 It will be proper to treat of this subject in two sec- 
 tions: 1, oi divorces d, vinculo; and 2, of divorces amens& 
 et thoro. 
 
 § 1. — Of divorces a vinculo. 
 
 293. We will inquire, 1, for what causes a divorce 
 a vinculo will be granted ; 2, its effects. 
 
 .^rt. 1. — For what causes a divorce a vinculo will be granted. 
 
 294. The divorce a vinculo was never granted by 
 the ecclesiastical courts except for the most grave 
 reasons. These, according to Lord Coke, are causa 
 pr&contr actus; causa metus; causa impotenia, seu frigi- 
 ditatis; causa affinitatis; et causa consanguinitatis .(b) 
 
 In the United States divorces d vinculo are granted 
 generally by the legislatures of the several states, for 
 such causes as may be sufficient to induce the mem- 
 bers to vote in favor of granting them. But in some 
 of the states the legislatures are prohibited from grant- 
 ing them ;(c) and in others they can be granted by 
 the legislature only after the courts have granted them 
 for specified causes. (</) 
 
 The courts, in nearly all the states, have the power 
 to decree divorces for grave causes, provided for and 
 defined in their acts of assembly. These may be 
 classed into those which occurred before marriage, and 
 those which have happened since. 
 
 (a) Dig. 24, 2, 2. (c) Const, of Wisconsin, art. 4, s. 24. 
 
 (i) Go. Litt. 235 a. (d) This is the case in Mississippi. 
 
122 OF PERSONS. 
 
 No. 295. Book 1, part 2, tit. 6, chap. 7, sec. 2, 5 1, art. 1. No. 296. 
 
 295. — 1. The causes which existed 6e/ore marriage 
 are, precontract, or the marriage of one of the parties 
 existing at the time of the marriage sought to be dis- 
 solved; consanguinity, or that degree of kindred within 
 which marriage is forbidden by law; impotence, 
 when incurable ;(«) idiocy, lunacy, or other mental 
 imbecility, which renders the party subject to it inca- 
 pable of making a contract ; fraud, when it has been 
 exercised to induce the marriage ; and in some states, 
 affinity within certain degrees. (i) 
 
 296. — 2. Divorces may also be granted for causes 
 which have arisen since the marriage took place, the 
 principal of which are adultery and cruelty. 
 
 Adultery, or the criminal carnal connection between 
 one of the spouses and any person of the opposite sex. 
 But if the adultery has been condoned, that is, forgiven 
 by the innocent spouse, which forgiveness is evidenced 
 by cohabitation, a divorce will not be granted. (c) 
 Nor will adultery be a sufficient cause for a divorce 
 when the party complaining has been guilty of the 
 same offence. (cZ) 
 
 Cruelty, which consists in those acts which affect 
 the life, the health, or even the comfort of the party 
 aggrieved, and give a reasonable presumption of bodily 
 hurt.(e) 
 
 Desertion, which is the act of one of the spouses in 
 leaving the other, without just cause, for the purpose 
 of causing a perpetual separation. The time which 
 must elapse after the malicious desertion, is generally 
 regulated by statute in the several states. 
 
 (a) Keith v. Keith, Wright's R. 518. 
 (J) Verm. Rev. Stat. t. 16, c. 63, s. 1. 
 
 (c) Barnes v. Barnes, Wright, 475: Questel v. Questel, Wright, 491 ; 
 Bouv. L. D. Condonation ; Quiucy v. Quincy, 10 N. H. Rep. 272 ; Phillips 
 V. Phillips, 4 Blaokf. 131 ; Hall v. Hall, 4 N. H. Rep. 462. 
 
 (d) Christianberry v. Christianberry, 3 Blackf. 203. 
 
 (e) Bout. L. D. Cruelty. By the French Law, while divorces were 
 granted, one of the causes was the libel or slander of one of the spouses by 
 the other. In our jurisprudence, I am not aware that the wife has any 
 remedy against her husband for slander. 
 
OF MARRIAGE. 123 
 
 No. 297. Book 1, part 2, tit. 6, chap. 7, sec 2, § 1, art. 2. No. 298. 
 
 In some states the condemnation to punishment for 
 some infamous crime, (a) and being charged with an 
 infamous crime, and a fugitive from justice. (6) 
 
 Having formed a connection with some religionists 
 whose opinions and practices are inconsistent with 
 the duties of marriage is, in some states, cause for 
 divorce, (c) 
 
 Refusal on the part of the husband, when of suffi- 
 cient ability, to provide necessaries for the subsistence of 
 his wife, is also a cause for divorce in some states. ((^) 
 
 Habitual drunkenness is also a sufficient cause by 
 statutory provisions in some of the states. 
 
 Art. 2. — Effects of a divorce a vinculo. 
 
 297. This divorce severs the marriage tie, and the 
 husband and wife can marry again, in general, as if 
 they never had been married before, provided, (in 
 some states) that when they have been divorced for 
 adultery, they shall not marry the partner of their 
 guilt, (e) 
 
 298. The effects of such a divorce on the property 
 of the wife are various in the several states. When 
 the divorce is for the adultery, or other criminal acts 
 of the husband, in general the wife's lands are re- 
 stored to her;(/') when it is caused for the adultery, 
 or other criminal acts of the wife, the husband has in 
 general some qualified right of curtesy to her lands ; 
 when the divorce is the consequence of some preex- 
 isting cause, as consanguinity, affinity, or impotence, 
 
 (a) Ark. Rev. St. c. 50, s. 1, p. 333. 
 \b) Laws of Lo. Act of April 2, 1832, 
 
 (c) In Kentueky and Maine. Dyer v. Dyer, 5 N. H. Rep. 271. 
 
 (d) In Vermont and Rhode Island. See Amsden v. Amsden, Wright's 
 R. 66. 
 
 (e) Ante, n. 255. This is also the rule of the civil law. Poth. Du Ma- 
 nage, part 3, c. 3, art. 7 ; 1 Toull. n. 555. 
 
 (/) Estate of Kintzinger, 2 Ashm. 455 ; Barber v. Root, 10 Mass. 260 ; 
 Star V. Pease, 8 Conn. 541. In Massachusetts, the interest acquired by a 
 judgment creditor of the husband, by a levy of his execution upon the 
 rents and profits of the wife's real estate, is determined and defeated by a 
 decree of divorce d vinculo in favor of the wife. Barker v. Root, 10 Mass. 
 260. 
 
124 OF PERSONS. 
 
 No. 299. Book 1, part 2, tit. 6, chap. 7, see. 2, J 2, art. 1, 2. No. 301. 
 
 in some states, as Maine and Rhode Island, the lands 
 of the wife are restored to her. (a) 
 
 A divorce d vinculo is in general a bar to dower ; 
 but in Connecticut, Illinois, New York, and, it seems, 
 in Michigan, dower is not barred by a divorce for the 
 fault of the husband. In Kentucky, when a divorce 
 is caused for the fault of the husband, the wife takes 
 as if he were dead. (6) 
 
 § 2. — Of divorces a mensa et thoro. 
 
 299. A divorce d, mensd, et thoro is a decree of a 
 competent tribunal, that husband and wife shall be 
 separated. 
 
 Art. 1. — For what causes granted. 
 
 300. This divorce is never granted for causes aris- 
 ing before the marriage. The causes for which it is 
 decreed are in general cruelty, desertion or such other 
 abuses as render the life of the innocent party bur- 
 densome. 
 
 Art. 2. — Effect of a divorce a mens& et thoro. 
 
 301 . This divorce is a mere separation, and does 
 not affect the rights of the parties as to property. 
 And if the husband is bound by the decree to pay the 
 wife alimony, and he does pay it, he is not responsible 
 for her future debts.(c) 
 
 In England, it has been expressly decided that a 
 woman divorced d, mensa et thoro, Uving separately 
 from her husband, cannot sue nor be sued as a feme 
 sole.(<?) But in Massachusetts, a different rule has 
 been adopted, (e) 
 
 The divorce d mensA et thoro, is only a legal separa- 
 
 (a) 1 Hill. Ab. 51, 2. 
 
 (A) 1 HiU. Ab. 61, 2. 
 
 (c) Bac. Ab. Baron and Feme, (M) ; Ellah v. Leigh, 5 T. R. 679. 
 
 {d) Lewis v. Lee, 3 B. & Or. 291 ; See Lean v. Shultz, 2 W. Bl. 1195 ; 
 Marshall v. Button,, 8 T. R. 845 ; Bar. Ab. Baron and Feme, (M). 
 
 (e) Dean v. Richmond, 5 Pick. 461. Read the forcible argument of 
 Parker, C. J. 
 
OF PATERNITY AND FILIATION. 125 
 
 No. 302. Book 1, part 2, tit. 7, chap. 1. No. 303. 
 
 tion, terminable at the will of the parties, the mar- 
 riage continuing in regard to every thing not neces- 
 sarily withdrawn from its operation by the divorce ; 
 for example, if there be a divorce d, mensd et thoro^ and 
 afterward a legacy be given to the wife, by the com- 
 mon law the husband may release it. (a) 
 
 TITLE VII.— OF PATEKNITY AND FILIATION. 
 
 302. Having examined the forms, obligations, 
 rights and duties which arise from marriage, and the 
 manner in which it is dissolved, it is natural, in the 
 next place, to explain the principal end of marriage, 
 paternity, filiation, and legitimacy. 
 
 Those children who are born in wedlock, or under 
 the sacred veil of marriage, are alone legitimate. Legi- 
 timacy confers on them the rights of family and kin- 
 dred, of which natural children, born of an illicit 
 union, alike reproved by morality and law, are 
 deprived. 
 
 It seems, therefore, proper to lay down the rules 
 which point out with certainty paternity and filiation, 
 either legitimate or illegitimate. 
 
 For that purpose this title will be divided into three 
 chapters ; the first will treat of legitimate children, 
 born in wedlock ; the second, of the proof of legiti- 
 macy ; and the third, of natural children. 
 
 CHAPTER I.— OF LEGITIMATE CHILDEEN BORN IN WEDLOCK. 
 
 303. Paternity and filiation are correlative terms, 
 the first of which signifies the quality of father, and 
 the second that of child. Filiation arises from the 
 birth which we receive from such a father or from 
 such a mother. 
 
 The mother is always known by evident signs ; 
 whether married or not, she is always certain : mater 
 
 (a) 5 Pick. 468 ; Bac. Ab. Baron and Feme, D ; 1 Roll. Ab. 343 ; Ste- 
 phens V. Tolty, Cro. Eliz. 908. 
 
126 OF PERSONS. 
 
 No. 304. Book 1, part 2, tit. 7, chap. 1. No. 305. 
 
 semper certa est etiamsi vulgb conceperit.(a) There is 
 not the same certainty as regards the father; the 
 mother is alone certain of the fact, and the relations 
 may not know, or feign ignorance, as to the paternity; 
 the law has therefore established a legal presumption 
 to serve as a foundation for paternity and fihation. 
 
 304. When the mother is married, her husband is 
 presumed to be the father of the children born during 
 the coverture ; or, if her husband be dead, the pre- 
 sumption is still that he was the father, provided the 
 child has been born within a competent time after 
 the coverture determined. This presumption arises 
 whether the child was conceived during the coverture 
 or before : pater is est quern nuptics, demonsfrant.(b) 
 
 The rule is founded on a double presumption : one 
 that there has been a cohabitation between the pa- 
 rents, not only before birth, but before and at the 
 time of the conception of the child : and the other, 
 that the mother has faithfully observed the vow which 
 she made to the husband at the time of marriage. 
 Of these two presumptions, the first one only is essen- 
 tial. The innocence of the mother is always presumed. 
 
 It is then the marriage, the actual or presumed 
 cohabitation, and presumption of innocence, always 
 favored by the law, which forms the first principle 
 adopted in relation to filiation, as the foundation of 
 society. The child born in wedlock has for its father 
 the husband of its mother. 
 
 305. But a child is conceived a long time before his 
 birth. He lives in ventre sa mere before he is born. 
 
 He may then be conceived before the marriage, and 
 be born while it subsists. In this case he is presumed 
 to be legitimate, although the marriage may have 
 taken place but a very short time before its birth ;(c) 
 or, having been conceived during the marriage, it may 
 not have been bom until after that contract was dis- 
 
 (a) Dig. 2, 4, 5. (c) 1 Bl. Com. 454, 455. 
 
 (J) Dig; 2, 4, 5. 
 
OF PATERNITY AND FILIATION. 127 
 
 No. 306. Bookl, parts, tit. 7, chap. 1, sec. 1. No. 307. 
 
 solved: in this case it will be presumed legitimate, if 
 born within a competent time afterward. 
 
 306. In doubtful cases,- in order to fix a term before 
 or after which a child shall not be legitimate, recourse 
 was had to another presumption that the child was 
 born after a certain period of gestation. 
 
 By common consent, the courts have fixed the 
 period of gestation, or the time during which the human 
 female who has conceived carries the embryo or foetus 
 in her uterus, at forty weeks, or ten lunar months, (a) 
 but this may vary one, two, or even three weeks. (&) 
 In point of fact, however, the duration of human 
 pregnancy is not very certain, and probably is not the 
 same in every woman. (c) The civil code of Louisiana, 
 copying the code civil Pran9ais, has fixed the period 
 of gestation. ((f) 
 
 There are three classes of cases in which the legiti- 
 macy may be contested : conception and birth during 
 the marriage ; conception before and birth during the 
 marriage ; and conception during the marriage and 
 birth after. These will be examined separately. 
 
 SECTION 1. ^EXCEPTIONS TO THE RULE THAT THE CHILD BORN 
 
 IN WEDLOCK IS THE CHILD OF THE MOTHER'S HUSBAND. 
 
 307. The rule that the husband of the mother is 
 the father of the child, born in lawful wedlock, or 
 within a competent time after its dissolution, is 
 founded on a presumption, and a presumption is but 
 a conjecture by which we draw from a known fact a 
 consequence, which renders probable a doubtful fact, 
 which we seek to know. 
 
 Marriage is the known fact, whence we conclude 
 that the child born during its existence, or within a 
 competent time afterward, is the offspring of the hus- 
 
 (a) Cyclop, of Practical Med. vol. 4, p. 87. 
 (J) Co. Litt. 123 b.; 1 Beck's Med. Jur. 478. 
 
 (c) Chit. Med. Jur. 409 ; Dewees' Midwifery, 125 ; 1 Paris and Fonbl. 
 218, 230: 1 Fodere, Med. Leg. § 407—416. 
 
 (d) B. 1, t. 7, c. 2. 
 
128 OF PERSONS. 
 
 No. 308. Book 1, part 2, tit. 7, chap. 1, sec. 2. No. 309. 
 
 band. But this consequence being neither necessary 
 nor indubitable, it may not be just; and this presump- 
 tion, like every other, may therefore be rebutted or 
 disproved. 
 
 308. Whenever it is evident that cohabitation can- 
 not have taken place between the husband and wife 
 at the time of conception, the rule cannot apply. 
 This evidence is established—^ 
 
 1 . By proof of the absolute and perpetual impotence 
 of the husband ; which impotence has been defined to 
 be the incapacity for copulation or perpetuating the 
 species. 
 
 2. The separation of the husband and wife, during 
 the time in which the woman became pregnant. 
 
 3. Temporary incapacity, in consequence of a grave 
 sickness of the husband. 
 
 4. Any other circumstance which shows that the 
 husband has not cohMted with his wife. 
 
 The fact that at the time of the conception of the 
 child the husband and wife did not cohabit with each 
 other, is a negative fact which cannot be established 
 directly alone. It is established indirectly by proving 
 the impossibility of a contrary fact : for example, it 
 cannot be proved directly that the husband and wife 
 did not cohabit, but if it be proved that the wife was 
 in the United States at the time of conception, and that 
 the husband was travelling in Europe for two years 
 immediately before the birth of the child ; or if it be 
 proved that the wife was free and the husband was in 
 prison, and remained unseen by the wife, the fact of 
 non access will be made out by the proof of the 
 absence or the imprisonment. 
 
 SECTION 2. — OP CHILDREN BORN IN LAWFUL WEDLOCK, BUT 
 CONCEIVED BEFORE MARRIAGE. 
 
 309. It is a rule of law that the child born during 
 wedlock, but begotten before marriage, is presumed to 
 
OF PATERNITY AND FILIATION. 129 
 
 No. 310. Book 1, parts, tit. 7, chap. 2, sec. 1. No. 313. 
 
 be legitimate. («) But the presumption of paternity- 
 may be rebutted by positive proof to the contrary ; 
 as, where the husband and wife were white, and the 
 child proved to be a mulatto. (6) 
 
 SECTION 3. OF CHILDREN BOKN AFTER THE DISSOLUTION OP 
 
 THE MARRIAGE. ' 
 
 310. A child born within the time allowed for 
 gestation, namely, forty weeks, is presumed to be 
 legitimate ; but there does not seem to be any positive 
 time fixed by the common law on this subject, (c) 
 
 CHAPTER n.— OP PROOF OF FILIATION. 
 
 311. This proof may be made in four different 
 ways : by evidence of possession ; by the testimony of 
 witnesses; by private writings, and by public registers. 
 Proof may be made against filiation. 
 
 SECTION 1. OF THE PROOF OF FILIATION BT EVIDENCE OF 
 
 POSSESSION. 
 
 312. When the husband and wife have cohabited 
 together as such, and no impotency is proved, the issue 
 is conclusively presumed to be legitimate, though the 
 wife is proved to have been, during that time, guilty 
 of infidelity, {d) After a lapse of thirty years, and the 
 death of all the parties, legitimacy will be presumed 
 on slight proof, (e) 
 
 313. If the family by their conduct show a tacit 
 recognition of relationship, it will be evidence of it ; 
 as, when the father is proved to have brought up the 
 party as his legitimate son, this amounts to the daily 
 assertion that the son is legitimate. (/) 
 
 (a) 1 Bl. Com. 454, 455. In the French law, to raise the presumption 
 of paternity, the child must have been conceived as well as bom in lawful 
 wedlock. 
 
 (b) Burden v. Burden, 3 Dey. 548. 
 
 (c) Note by Harg. * Butler to 1 Inst. 123 b. ; 1 Rolle's Ab. 356, 1. 10 ; 
 Cro. Jac. 541 ; Palm. 9. 
 
 td) Cope J). Cope, 1 Moo. & Rob. 269 ; 1 Greenl. Ev. ^ 28. 
 \e) Johnson v, Johnson, 1 Desaus. 595. 
 (/) Berkley Peerage case, 4 Camp. 416. 
 
 Vol. I. 9 
 
130 OF PERSONS. 
 
 No. 314. Book 1, part 2. tit, 7, chap. 2, sec. 2, 3. No. 316. 
 
 SECTION 2. OF PROOF OF FILIATION BY THE TESTIMONY OF 
 
 WITNESSES. 
 
 314. The fact of the accouchement, may be proved 
 by the direct testimony of one who was present, as a 
 physician, a midwife or other person. This is suffi- 
 cient to prove the birth, and also the fiUation, pedi- 
 gree or kindred. But it is not always possible to prove 
 this fact, particularly at a great distance of time, and, 
 in that case, other verbal testimony may be given. 
 
 315. Although in common cases, hearsay is not 
 evidence, yet in cases of pedigree, such evidence is 
 allowed. By pedigree, is understood the state of the 
 family, as far as regards the kindred of the different 
 members, their births, marriages and deaths. 
 
 In order to ascertain the kindred of an individual, 
 it is material to know how he was treated and acknow- 
 ledged by those who were interested in him, or sus- 
 tained the relations of blood or affinity toward him. 
 
 This may be proved by evidence of what deceased 
 persons, related to the one in question, either by con- 
 sanguinity or affinity, said of him. (a) And the general 
 repute in the family, proved by the testimony of a 
 surviving member of it, falls within the same rule. (6) 
 
 SECTION 3. OF PKOOF OF FILIATION BY PRIVATE WRITINGS. 
 
 316. An entry made by a deceased parent or other 
 relation, in a Bible, family missal, or other book, or in 
 any document or paper, stating the fact and date of the 
 birth of a child or other relative, is regarded as the 
 declaration of such parent, or relative, in a matter of 
 pedigree. The correspondence of deceased members 
 of the family, recitals in family deeds, wills, and other 
 solemn acts, are original evidence in all cases, where 
 the oral declarations of the parties are admissible. (c) 
 
 (a) Vowles v. Young, 13 Ves. 140 ; Whildock v. Baker, 13 Ves. 514 ; 
 Jewell V. Jewell, 1 How. S. C. R. 231 ; S. C. 17 Pet. 213. 
 (b\ Doe V. Griffin, 15 East, 203. 
 (c) Ph. and Am. on Ev. 229 ; 1 Phil. Ev. 216 ; 1 Greenl. Ev. § 104. 
 
OF PATERNITY AND FILIATION. 131 
 
 No. 317. Book 1, part 2, tit. 7, chap. 3, sec. 1. No. 380. 
 
 SECTION 4. — OF THE PROOF OF FILUTION BYPUBLIC REGISTERS. 
 
 317. Public registers, authorized by law to be kept, 
 such as registers of births and marriages, made pur- 
 suant to the statutes of any of the United States, (a) 
 are admitted as competent evidence of the facts they 
 contain ; but they are not evidence of any fact not 
 required to be recorded, and which did not occur in the 
 presence of the officer. A register of baptism, for 
 example, taken by itself, is evidence only of that fact; 
 nor is the mention of the child's age any evidence of 
 the day of its birth, in certain cases. (6) 
 
 When the books cannot be procured, an examined 
 copy, duly sworn to, is always admissible. (c) 
 
 But whether the book itself be produced, or an 
 examined copy, evidence of identity must always be 
 given. 
 
 SECTION 5. OF PROOFS AGAINST FILIATION. 
 
 318. Proof against the legitimate filiation, may be 
 made by evidence that the party is not the child of 
 the mother whom he pretends to be, and, the mater- 
 nity being proved, that he is not the child of the hus- 
 band of the mother. 
 
 CHAPTER in.— OF NATURAL CHILDREN. 
 
 319. This chapter will be divided into two sections. 
 In the first will be considered, who are natural chil- 
 dren ; and in the second, the legitimation of such 
 children. 
 
 SECTION 1. WHO ARE NATURAL CHILDREN. 
 
 320. The term natural children has two meanings. 
 In contradistinction to legitimate children, it signifies 
 
 (a) Milford v. Worcester, 7 Mass. 48 ; Sumner v. Sebec, 3 Greenl. 223 
 Richmond v. Patterson, 3 Ohio, 368 ; Jackson v. King, 5 Cowen, 237 
 Stoever v. Whitman, 6 Binn. 416 ; Huntley v. Comstock, 2 Root, 99 
 Woodward v. Spitler, 1 Dana, 179. 
 
 (l) Burghart v. Angerstein, 6 C. & P. 690. 
 
 (c) 1 Greenl. Ev. ^ 485. 
 
132 OF PERSONS. 
 
 No. 321. Book 1, part 2, tit. 7, chap. 3, sec. 1. No. 322. 
 
 that they are born out of lawful wedlock; and in op- 
 position to adopted children, it means that they are 
 the actual offspring of their parents. It is only in the 
 first sense here given, that natural children will be 
 considered in this chapter. 
 
 Natural children have been divided into three 
 classes ; first, those born of persons who were free, and 
 might, at the time of conceptitn, have lawfully mar- 
 ried, these are called simply natural children; secondly, 
 those who are the offspring of persons related by con- 
 sanguinity or affinity within certain degrees, and these 
 are incestuous natural children; and, thirdly, those 
 whose parents, or one of them, was married to an- 
 other person than the father or mother of such chil- 
 dren, and these are denominated adulterous natural 
 children. These distinctions are unknown to the com- 
 mon law, though they have been adopted in some of 
 the United States. (a) The last two classes cannot 
 become legitimate by any act of their parents. 
 
 321. In Louisiana, a further division is made : ille- 
 gitimate children are classified into those whose 
 fathers are known, and these are strictly called natural 
 children ; and those whose fathers are unknown, who 
 are called bastards. (b) 
 
 322. A natural or illegitimate child is called a bas- 
 tard. A bastard is one who is born of an illicit union, 
 and before the lawful marriage of his parents. 
 
 A man is a bastard if born — 
 
 1st. Before the lawful marriage of his parents, but 
 although he may have been begotten while his parents 
 were unmarried, yet, if afterward, they married to- 
 gether, and he is born during the coverture, or after it 
 shall have been determined, he is legitimate. (c) 
 
 2dly. If begotten and born during the coverture, 
 under circumstances which render it impossible that 
 the husband of the mother can be the father, he will 
 
 217. (c) 1 Bl. Com. 455, 456. 
 
 {b) CM Code, art. 220. 
 
OF PATERNITY AND FILIATION. 133 
 
 No. 333. Book 1, part 8, tit. 7, chap, 3, sec. 2. No. 324. 
 
 be a bastard. But, unless there is an impossibility 
 that the husband can be the father, the rule that he is 
 so is universal : pater is est quern nuptice demonstrant .{a) 
 3dly. A child may be a bastard if born beyond a 
 competent time, (generally considered forty weeks,) 
 after the dissolution of the marriage. But the time 
 of gestation is not absolutely fixed by the law. (6) 
 
 SECTION 2. OF THE LEGITIMATION OF NATURAL CHILDEEN. 
 
 323. By the common law of England, adopted 
 generally in the United States, children cannot be 
 legitimated by the subsequent marriage of their 
 parents, because the policy to permit legitimation of 
 such children, it is urged, is against morals, and " a 
 great discouragement to the matrimonial state. "(c) 
 
 On the contrary, for the purpose of suppressing 
 concubinage, the Roman emperors established the 
 rule that the subsequent marriage of the parents should 
 legitimate the children : {d) in so very different a point 
 of view may the same institution be seen. 
 
 The canon law adopted the same rule, and the rea- 
 son assigned is to favor repentance and a return to 
 good morals, and because it is founded in equity. 
 
 324. In this country, several of the states have 
 adopted the rule, and passed statutes making legiti- 
 mate, children bom before the marriage of their 
 parents, but who, after such marriage, have been 
 acknowledged by them. 
 
 The subsequent marriage of parents legitimates the 
 child in Illinois, but he must be afterward acknow- 
 ledged. The same rule seems to have been adopted 
 in Indiana, Missouri and Louisiana. An acknowledg- 
 
 (a) Dig. 2, 4, 5. 
 
 (b) Co. Litt. 123, a; Harg. and Butler's note to Inst. 123, a ; 1 Beck's 
 Med. Jur. 478 ; Cyclop, of Pr. Med. vol. 4, p. 87, art. Succession of In- 
 heritance. In Louisiana the time is fixed ; the Code has adopted the rule 
 of the French Code Civil. Civ. Code of Louis, b. 1, t. 7, c. 2. Vide ante, 
 B. 1, part 2, t. 7, c. 1. 
 
 (c) 1 BL Com. 455. 
 
 (d) Code, lib. 5, t. 27, 1. 5, 6 et 11. 
 
134 OF PERSONS. 
 
 No. 325. Book 1, part 8, tit. 8. No. 326. 
 
 ment of illegitimate children, of itself, legitimates in 
 Ohio; and, in Michigan and Mississippi, marriage 
 alone, between the reputed parents, has the same 
 effect. In Maine, a bastard inherits to one who is 
 legally adjudged, or in writing, owns himself to be 
 the father. A bastard may be legitimated in North 
 Carolina on application by the putative father to court, 
 either where he has married^ the mother or she is 
 dead, or married to another, or lives out of the state. 
 
 In a number of states : namely, in Alabama, Con- 
 necticut, Illinois, Indiana, Kentucky, Maine, Massa- 
 chusetts, Michigan, North Carolina, Ohio, Rhode Island, 
 Tennessee, Vermont and Virginia, a bastard takes by 
 descent from his mother, with certain modifications, 
 regulated by the laws of these states. (a) 
 
 325. Numerous private laws have been passed to 
 legitimate children born out of lawful wedlock ; these 
 laws are enacted at the request of the individuals to be 
 benefited, and provide for the rights of third persons 
 whom they might otherwise affect. 
 
 TITLE VIII.— OF PATEENAL POWER. 
 
 326. The family is constituted by marriage, which 
 has been examined in title sixth, and title seventh has 
 been the subject of paternity and filiation, or an in- 
 quiry into the persons who compose the family. 
 Under the eighth title will be considered paternal 
 power, or the means of maintaining order in the 
 family, by regulating by wise principles this most 
 sacred magistracy, established by nature herself, ante- 
 rior to all laws and agreements or compacts. 
 
 But this authority, which receives the sanction of 
 law, ought to be exercised for the protection and 
 direction of the children, and when, by its abuse, it 
 becomes the means of oppression, so far from being 
 supported by law, the parents will be deprived of it. 
 
 (a) 2 Hill, Ab. ss. 24 to 35 ; Ciyil Code of Louis., art. 241. 
 
OF PATERNAL POWER. 135 
 
 No, 327. Book 1, part 2, tit. 8, chap. 1, 2. No. 329. 
 
 Naturally this authority belongs to the wife as well 
 as to the husband, but by the policy of law, she does 
 not possess this power, being herself under the power 
 of her husband. 
 
 In general the husband is alone vested with parental 
 power over the children, and on his death this autho- 
 rity, subject to certain modifications, is vested in the 
 mother. 
 
 327. It will be perceived that every thing relative 
 to paternal power has not been collected under this 
 title, other matter will be found better placed under 
 other heads. 
 
 This title will be divided into four chapters ; in the 
 first will be examined the general duties of children 
 toward their parents ; in the second, the right of the 
 parents to control their children ; in the third, the 
 right of the father to his son's labor ; and, in the 
 fourth, will be considered the power of the father and 
 mother over natural children. 
 
 CHAPTER I.— OF THE GENERAL DUTIES OP CHttDREN TOWARD 
 THEIR PARENTS. 
 
 328. The lawful obligations enjoined upon children, 
 which they are bound to fulfil toward their parents, 
 are obedience and assistance during their minority ; 
 and generally they are bound, by statutory provisions, 
 to maintain their parents who are in want, when they 
 have sufficient ability to do so. (a) Their duties arc 
 to honor and respect them during their whole lives. 
 
 After they arrive at their majority, their obhgations 
 cease, if we except that of alimony ;(6) but their duties 
 never end. 
 
 CHAPTER II.— OF THE RIGHT OF PARENTS TO CONTROL THEIR 
 
 CHILDREN. 
 
 329. To enable the parents to perform their duties 
 toward their children, and for their benefit, the law 
 has invested them with considerable authority. 
 
 (a) Poth. Du Mariage, partie 5, c. 1, art. 2, ^ 2. See 2 Kent's Com. 207. 
 
 (b) State V. Shreeve, Coxe, 230. 
 
136 OF PERSONS. 
 
 No. 330. Book 1, part 2, tit. 8, chap. 3. No. 332. 
 
 The father has the power to take his children, while 
 in their minority, wherever he will ; he may send 
 them to school, place them in college, put them out 
 to a trade, and provide for them as he may think 
 proper, (a) 
 
 330. But in case of a separation between the hus- 
 band and wife, and a dispute arises as to the custody 
 of the children, when all things are equal, the courts 
 will give the custody to the father in preference to 
 the mother; but whenever the good of the children 
 requires it, they will be delivered to the mother, or 
 even to a stranger. (&) 
 
 331. Parents may correct their children for lawful 
 cause, with moderation, and for their good. A mali- 
 cious whipping could not be justified, and might pos- 
 sibly render the parent amenable to the criminal 
 law.(c) The right of correction which they possess 
 may be transferred by them to teachers, and to mas- 
 ters with whom the children may be placed, who are 
 to exercise it with moderation, for the benefit of the 
 child ; and for any wanton abuse of it, they are liable 
 to punishment. 
 
 CHAPTER III.— OF THE BIGHTS OF THE FATHER TO THE LABOR 
 OF THE CHILD. 
 
 332. As the father is bound to support his child 
 during his minority, the law gives him, in return, the 
 right to his labor or the fruit of it, while he lives with 
 him and is maintained by h.im..{d) But this right 
 ceases in the following cases : 
 
 1. If he puts him out as an apprentice to learn a 
 
 (a) Matter of Wollstencraft, 4 John. Ch. R. 80 ; Comm. v. Addicks, 5 
 Binn. 520 ; Ex parte Crouse, 4 Whart. 9. 
 
 (J) 4 John. Ch. R. 80 ; Comm. v. Nutt, 1 Browne, 143 ; Comm. v. Ad- 
 dicks, 2 S. & B. 174 ; Matter of Kottman, 2 Hill, S. C. R. 263 ; U. S. v. 
 Green, 3 Mass. 482. 
 
 (c) Com. Dig. Pleader, 8 M 19 ; Hawk. c. 60, s. 23, and c. 62, s. 2;— 
 0. 29, s. 5. 
 
 (d) The Etna, Ware, 462 ; Steele v. Thatcher, Ware, 91 ; Stone v. Pul- 
 sipher, 16 Verm. 428 ; Lord u. Poor, 10 Shep. 569 ; Shute v. Dorr, 5 Wend. 
 204 ; Benson v. Remington, 2 Mass. 113. 
 
OF INFANCY AND GUARDIANSHIP. 137 
 
 No. 333. Book 1, part 2, tit. 9, chap. 1. No. 335. 
 
 trade or business, for then the master is entitled to 
 such labor. 
 
 2. When he neglects to perform his duties of pro- 
 viding for his child, and abandons him, or does any 
 other act from which may be implied an emancipation 
 of the minor. In such case he tacitly authorizes him 
 to labor for others. (a) 
 
 3. When by an express agreement the father sells 
 to the child the remaining time of his minority. (&) 
 
 CHAPTER IV.— OF THE POWER OF THE FATHER AND MOTHER 
 OVER NATURAL CHttDREN. 
 
 333. The powers of parents over their natural 
 children are nearly the same as those over their 
 legitimate issue. But they do not owe alimony by 
 the common law to their parents, nor are their 
 parents bound to give them alimony after they have 
 attained their full age. 
 
 The right of custody is in the mother in preference 
 to the father. (c) Next to her the putative father is 
 entitled to such custody, (c?) 
 
 TITLE IX.— OF MINORITY OR INFANCY AND 
 GUARDIANSHIP. 
 
 334. This title will be divided into two chapters; 
 the first will treat of minority or infancy ; and the 
 second, of guardianship or tutorship and curatorship. 
 
 CHAPTER I.— OF MINORITY AND INFANCY. 
 
 335. The complete and full development of the 
 physical forces of man, require a number of years ; 
 that of his moral faculties is still slower. No being 
 is less capable to protect himself than man in his 
 
 (a) Ware, 462 ; Godfrey v. Hays, 6 Ala. 501 ; Jenney v. Alden, 12 Mass. 
 375 ; Morse v. Welton, 6 Conn. 547 ; United States v. Mertz, 2 Watts, 
 406 ; Gale v. Parrott, 1 N. H. Rep. 28. 
 
 (J) 2 Verm. 290 ; U. S. v. Mertz, 2 Watts, 408 ; Galbraith v. Black, 4' 
 S. & R. 207 ; 6 Conn. 547. 
 
 (c) Comm. V. Fee, 6 S. & R. 255 ; People v- Landt, 2 John. 375 ; Car- 
 penter V. Whitman, 15 John. 208 ; Wright v. Wright, 2 Mass. 109. 
 
 (d) Comm, v. Anderson, 1 Ashm. 55. 
 
138 OF PERSONS. 
 
 No. 336. Book 1, part 2, tit. 9, chap. 1. No. 338. 
 
 infancy; as he grows up, he acquires strength and 
 intelligence, but his growing passions require a regu- 
 lating experience, which he has not yet attained. 
 
 It is then of the utmost importance, to his own 
 interest, that man in his infancy, and until he has 
 attained a sulficient maturity to manage his afiairs, 
 should be confided to the care^ direction and advice of 
 guardians capable of protecting him, and serving him 
 for gaides. Hence the origin of guardians, whose 
 duties are regulated by law. 
 
 336. The person to whom is delegated the authority 
 to take care of an infant or minor, during his minority, 
 is called a guardian of the person ; in the civil law, a 
 tutor; when such person is appointed to take care of 
 the property of the minor, he is known by the name 
 of guardian of the estate ; in the civil law, the curator. 
 The minor over whom a guardian has been appointed 
 is called a ward; in the civil law, a pupil. The office 
 of a guardian is a guardianship; in the civil law, 
 a tutorship or a curatorship, according to circum- 
 stances. 
 
 337. The age at which man no longer requires aid 
 and advice for his conduct, is not the same in every 
 individual ; some being precocious, and others slow at 
 arriving at maturity ; but as the law cannot ascertain 
 all these diversities, a period has been fixed which is 
 uniform as to all. 
 
 338. The time fixed bylaw when all individuals of 
 both sexes arrive at their full age, and acquire fully 
 all their political and civil rights, is the completion of 
 their twenty-first year, (a) 
 
 But it is to be observed that by the civil computa- 
 tion of time, which difiers from the natural computa- 
 tion, a man is reputed to be twenty-one years of age, 
 the first instant of the last day of the twenty-first year 
 next before the anniversary of his birth, because the 
 last part of the delay having once commenced, it is 
 
 (a) Co. Litt. 171. 
 
OF INFANCY AND GUARDIANSHIP. 139 
 
 No. 339. Book 1, part 2, tit. 9, chap. 2, sec. 1. No. 341. 
 
 considered as ended. (a) If, for example, a person 
 were born at any hour of the first day of January, 
 1830, (even but a few minutes before twelve o'clock 
 of the night of that day,) he would be of full age at 
 the first iiistant of the thirty-first day of December, 
 1851, although nearly forty-eight hours before he had 
 actually attained the full age, according to years, 
 months, days, hours and minutes, because there is, in 
 this case, no fraction of a day.(&) 
 
 CHAPTER n.— OF GUAEDIANSHIP, TUTORSHIP OR CURATOR- 
 SHU'. 
 
 339. There are several kinds of guardians, these 
 must be particularly described and distinguished ; to 
 benefit the ward, the guardian must be a man capable 
 of protecting and taking care of him; the guardian is 
 required to perform a variety of duties, and is bound 
 by certain obligations ; his power must end. These 
 several subjects will be examined in as many sections. 
 
 SECTION 1. OF THE SEVERAL KINDS OF GUARDIANS. 
 
 340. Of the several kinds of guardians at common 
 law, some are obsolete, and others have been super- 
 seded. They will be here enumerated together with 
 others created by statute. 
 
 341. — 1. Guardian by nature is the father, and, on 
 his death, the mother ; this guardianship extends only 
 to the custody of the person,(c) and continues till the 
 child shall arrive at the age of twenty-one years. ((^) 
 
 Guardianship by nature must not be confounded 
 with paternal power, the former is instituted in favor 
 of the child and is a burden; the latter is a right, and 
 is in favor of the father and mother. 
 
 (a) Savigny, Dr. Rom. ^ 182. 
 
 ih) 1 Sid. 162 ; S. C. 1 Keb. 589 ; 1 Bl. Com. 464, 465, note (13) by 
 Chitty : 1 Lill. Reg. 57 ; Com. Dig. Enfant A ; Savig. Dr. Rom. ^^ 383, 
 384. See Cov. on Conv. Ev. 182, 183. 
 
 (c) Genet v. Talmadge, 1 John. Ch. R. 3 ; Miles v. Boyden, 3 Pick. 
 213 ; Hyde v. Stone, 7 Wend. 354. 
 
 {d) Co. Litt. 84 a.; South v. Williamson, 1 Har. & J. 147. 
 
140 OF PERSONS. 
 
 No. 342. Book 1, part 2, tit. 9, chap. 2, sec. 1. No. 344. 
 
 A guardian by nature has no power to lease the 
 "lands of the infant, (a) nor to receive a legacy due to 
 him. (6) 
 
 342. — 2. Guardian by nurture is one who becomes 
 guardian when the infant is without any other, and the 
 right belongs exclusively to the parents, first to the 
 father, and then to the mother, (c) It extends only to 
 the person, and determines at the age of fourteen 
 years. This species of guardianship has become ob- 
 solete. 
 
 343. — 3. A guardian in soc(^e is one who has the 
 custody of the infant's lands as well as his person, 
 This guardianship was given by the common law to 
 the next of blood of the child to whom the inheritance 
 could not possibly descend. This species of guardian- 
 ship has become obsolete, and does not perhaps exist 
 in this country, for the guardian must be a relation 
 by blood who cannot possibly inherit, and such case 
 must rarely exist. ((^) It ceases at the age of fourteen 
 years, (e) 
 
 344. — 4. Testamentary guardians. The stat. of 12 
 Car. II., c. 24, the principles of which have been re- 
 enacted generally throughout the United States, gave 
 power to the father to appoint a guardian for his chil- 
 dren by his last will and testament.(/) And a guar- 
 dian may be appointed whether the child be in esse or 
 in ventre sa mere. These guardians supersede the 
 claim of any other, and extend to the person, and real 
 and personal estate of the child. They continue till 
 the child arrives at full age. It does not appear to be 
 settled whether the marriage of a testamentary female 
 
 (a) May v. Calder, 2 Mass. 55 ; Anderson v. Darby, 1 N. & M. 369. 
 h) Miles V. Boyden, 3 Pick. 213. 
 
 (c) Kline v. Beebe, 6 Conn. 494. 
 
 (d) Combs V. Jackson, 2 Wend. 153 ; Fonda v. Vanhome, 15 Wend. 
 631 ; Putnam «, Ritchie, 6 Paige, 390. 
 
 (e) Byrne v. Van Hoeson, 5 John. 66. 
 If) Baloh V. Smith, 12 N. H. Kep. 437. 
 
OF INFANCY AND GUARDIANSHIP, 141 
 
 No. 345. Book 1, part 2, tit. 9, chap. 2, sec. 2. No. 347. 
 
 ward would determine the guardianship before she 
 acquired her full age. (a) 
 
 In Connecticut the father cannot appoint a testa- 
 mentary guardian. (6) 
 
 345. — 5. Guardians appointed by the courts, by 
 virtue of some statutory power. These are either 
 guardians of the person, tutors ; or guardians of the 
 estate, curators. Guardians by nurture and in socage 
 having become obsolete, have been essentially super- 
 seded in practice by the appointment of guardians by 
 courts of chancery, orphans' courts, probate courts, and 
 such other tribunals as have jurisdiction to make such 
 appointments. 
 
 346. — 6. A guardian ad litem is one appointed by 
 the court, when an infant is sued in a civil action or 
 proceeding, to defend him in the same. Every court, 
 when an infant is sued in a civil action, has the power 
 to appoint a guardian ad litem, when he has no guardian ; 
 for, as an infant cannot appoint an attorney, he would 
 be without a remedy if such a guardian were not ap- 
 pointed. The power and duty of a guardian ad litem 
 are confined to the defence of the suit.(c) A guardian 
 ad litem differs from a prochein ami, or next friend, the 
 latter being one, who, without being appointed guar- 
 dian, sues in the name of the infant for the recovery 
 of the rights of the latter, or does such other acts as 
 are authorized by law.(c?) 
 
 SECTION 2. — ^WHO MAY BE A GUARDIAN. 
 
 347. As the guardian is a mandatary(e) appointed 
 by law, to act in the place of the minor or infant, it is 
 requisite that he should be sui juris and capable of 
 
 (a) Mendes v. Mendes, 1 Ves. 89; Reeve's Dom. Eel. 328 ; 2 Kent, Com. 
 225, 226 ; vide post, n. 362. 
 
 (b) 1 Swift's Dig. 48. 
 
 (c) F. N. B. 27 ; Co. Litt. 88 b, note (16), 135 b, note (1). 
 
 (d) Commonwealth v. Roach, 1 Ashm. 27 ; Edwards on Parties, 182 to 
 204. 
 
 (e) Granby v. Amherst, 7 Mass. 1 ; Manson v. Felton, 13 Pick. 206. 
 
142 OF PERSONS. 
 
 No. 348. Book 1, part 2, tit. 9, chap. 2, see. 3, § 1. No. 349. 
 
 performing the duties of his appointment, (a) He 
 cannot have any interest adverse to those of his ward, 
 and if he is known to have any such, he will not be 
 appointed. 
 
 An executor of an estate will not be appointed 
 guardian of an infant who claims such estate, because 
 they may have different interests, and the law does 
 not put the duties of a man in opposition to his 
 interest. (&) 
 
 A person under his full age, or a minor, cannot of 
 course be appointed to take care of another minor. 
 
 One under the power of another, although possess- 
 ing understanding, as a married woman ; and an infa- 
 mous person, are not qualified for this trust. 
 
 SECTION 3. OF THE DUTY OF A GUARDIAN. 
 
 348. The administration of a general guardian 
 extends over the person and' the property of the ward. 
 In the first place let us examine what concerns the 
 person ; and, secondly, the duties which relate to the 
 property of the ward. 
 
 § 1. — Of the duty of the guardian toward the person of the ward. 
 
 349. In general the guardian stands to the ward in 
 loco parentis; but he is not so in every respect, as for 
 example, the father is entitled to his son's labor ; on 
 the contrary, if the ward earns any thing it is not for 
 the benefit of the guardian, but his own.(c) All the 
 acts of the guardian are to be for the benefit of the 
 ward. He is bound 
 
 To take care of the person of the ward ; 
 
 To exercise, when needful, proper power of re- 
 straint ; 
 
 To place him apprentice or in some situation to earn 
 his own living ; 
 
 To represent him in all civil acts, and in actions. 
 
 (a) Co. Litt. 886 ; Bac. Ab. Guardian B. 
 
 (b) Jackson v. Sears, 10 John. 435. 
 
 (c) But see Bass v. Cook, 4 Porter, 390. 
 
OF INFANCY AND GUARDIANSHIP. 143 
 
 No. 3S0. Book 1, part 2, tit. 9, chap. 2, sec. 3, 5 2, art. 1. No. 351. 
 
 The care of the person includes the obligation to 
 provide for the support and education of the ward, and 
 generally the guardian may use a sound discretion in 
 these respects; but in cases of doubt or difficulty he 
 may apply to the competent tribunal for directions. (c) 
 
 The guardian may properly restrain his ward from 
 acts which are illegal or improper,(6) and he is gene- 
 rally authorized to place him out apprentice, but in 
 this he will use the precaution of consulting the mother, 
 if living, or if not, some other relatives of the ward. 
 The business to which the minor is bound must be a 
 proper one; a guardian cannot bind his ward as a 
 servant, unless by authority of some statute. (c) 
 
 He is bound to appear for him in all cases in which 
 he sues or is sued, because the ward cannot appoint an 
 attorney. 
 
 § 2. — Of the administration of the estate of the ward. 
 
 350. The acts of the guardian in relation to the 
 property of his ward may be divided into two classes, 
 namely, when he acts alone and of his own authority; 
 and when he acts under the direction of a competent 
 tribunal. 
 
 Art. 1. — When the guardian ads alone. 
 
 351. He may perform alone all acts of simple 
 administration, which do not extend beyond the time 
 during which he is to be guardian; for example, he 
 may lease the minor's real estate, but the lease must 
 not extend beyond the time when the ward will be of 
 full age. ((f) As he is, in all these acts, the legal 
 mandatary and representative of the ward, they have 
 the same binding force as if they had been performed 
 by the minor himself, after he had attained his age of 
 twenty-one years. Hence the maxim of the Roman 
 
 (a) Harris v. Richardson, 4 Dev. 279 ; Ex parte Ralston, R. M. Charlt. 
 119 ; Bybeo v. Thorp, 4 B. Munroe, 313. 
 
 (b) Wood V. Gale, 10 N. H. R. 247. 
 
 (c) Respublica v. Keppele, 1 Yeates, 233. 
 
 (d) Ross V. GiU, 4 CaU, 250 ; Truss v. Old, 6 Rand. 256. 
 
144 OF PERSONS, 
 
 No. 352. Book 1, part 2, tit, 9, chap. 2, sec. 3, J 2, art. 1. No. 354. 
 
 law, which is founded in reason; tutor domini loco 
 hahetur.{a) 
 
 His first duty is to make an inventory of all the 
 property of his ward. This inventory should contain 
 in detail a list of all the goods and claims belonging 
 to his ward. And for all personal property which the 
 guardian receives, he must account, either for its 
 value when he has parted with it, and it cannot be 
 found, or for the articles themselves, when they are 
 in his hands. As the guardian may sell or dispose of 
 the personal estate, goods which he has sold for the 
 purpose of the trust cannot be recovered by the ward 
 in an action against the purchaser.(6) 
 
 352. With regard to the real estate, it may be ob- 
 served that the guardian has no further control with, 
 or concern over the real estate, than what relates to 
 the leasing of it, and receiving the rents and profits, 
 and keeping it in order. He may lease it, as has been 
 observed, for the term during which he has a right to 
 control it, and no longer. (c) 
 
 353. Guardians will not be permitted to turn the 
 personal property of an infant into real property, or 
 real property into personalty, because it may not only 
 affect the rights of the infant, but also of his repre- 
 sentatives, if he should die under &ge.{d) If the 
 guardian should, under particular circumstances, make 
 a change, beneficial to the infant, such as the court 
 would have ordered, it will afterward be sanctioned 
 by the court, (e) 
 
 354. As the guardian is bound to render an account, 
 he is required to keep one. He cannot reap any 
 benefit from the use of the ward's money, nor do any 
 
 (a) Dig. 26, 7, 27. 
 
 (5) See Bonsall's Case, 1 Rawle, 266 ; Field v. Scheflfelin, 7 John. Ch. 
 150 ; Ellis V. Essex M. Bridge, 2 Pick. 263 ; Bowman's Appeal, 3 Watts, 369. 
 
 (c) Genet v. Tallmadge, 1 John. Ch. R. 561 ; Jones v. Ward, 10 Yerger, 
 160 ; 7 John. Ch. R. 154 ; Doe v. Hodgson, 2 Wils. 129 ; Snook «. Sutton, 
 5 Halst. 133 ; Bac. Ab. Leases, etc. 19. 
 
 (d) 1 Fonbl. Eq. B. 1, c. 2, $ 5, note {b). 
 
 (e) Inwood v. Twyne, Amb. 417 ; S. C. 2 Eden's R. 148, and note. 
 
OF INFANCY AND GUARDIANSHIP. 145 
 
 No. 355. Book 1, part 2, tit. 9, chap. 2, sec. 3, art. S, 3. No. 357. 
 
 thing adverse to his interest. If he settles a debt 
 upon beneficial terms, or purchases a claim against the 
 ward at a discount, he does not receive the benefit, but 
 it accrues to the ward. (a) 
 
 355. For any wasteful expenditures, the guardian 
 would not probably be allowed ; but the courts would 
 not weigh these in golden scales, if the guardian acted 
 in good faith. 
 
 Art. 2. — When the guardian must have the sanction of the court. 
 
 356. Power is given to various tribunals, known by 
 different names in the several states, to direct guar- 
 dians in many instances, and to authorize them to 
 perform acts which are of too much importance to be 
 trusted to a single individual. Among these are the 
 power to sell the real estate of the minor, to make 
 improvements, and to spend certain sums beyond the 
 income of a minor's estate for his support and on his 
 account. 
 
 When money is directed to be invested in certain 
 securities, the courts have in general authority to 
 approve of such investment, and if the money happen 
 to be lost, the loss will fall upon the ward and not 
 upon the guardian, who has received the sanction of 
 the court. 
 
 Art. 3. — Of the guardian's account. 
 
 357. The guardian is required to furnish an account 
 to the tribunal, which has jurisdiction of such matter, 
 whenever called upon, but always at the determination 
 of his guardianship. During the minority of the ward, 
 any one acting as the next friend of the ward, may 
 call upon the guardian to file his account for proper 
 cause shown. 
 
 In this account all the transactions must appear 
 which have taken place between the guardian and the 
 ward ;(6) and if the guardian were indebted in his 
 
 (a) 2 Kent, Com. 229. (J) Crowell's Appeal, 2 Watts, 295. 
 
 Vol. I. 10 
 
146 OF PERSONS. 
 
 No. 358, Book 1, part 2, tit. 9, chap. 2, sec. 4, § 1. No. 359. 
 
 individual account to himself as guardian, he will be 
 presumed to have received the amount in his capacity 
 of guardian .{a) It should contain all the moneys which 
 have come to his hands, the dates when received, and 
 show how the money has been employed. On the 
 other hand, it ought to state all the moneys disbursed, 
 for what purpose they have been paid out, the date 
 when paid, and to whom. Interest ought to be charged 
 on both sides. (&) The guardian is entitled to commis- 
 sions, the amount of which is regulated by the courts, 
 in proportion to his trouble and risk ; but he is not 
 allowed to pay any one for the management of the 
 estate, which he ought to have done in person. (c) 
 
 When one person is guardian of several wards, he 
 is required to keep separate accounts with each.{d) 
 
 SECTION 4. OF THE END OP THE GUARDIAN'S POWER AND OF 
 
 HIS DISCHARGE. 
 
 358. The duties of a guardian cease by lapse of 
 time ; by the removal or discharge of the guardian by 
 a competent tribunal ; by the death of the ward or 
 guardian ; and by operation of law. 
 
 § 1. — Of the discharge of the guardian by lapse of time. 
 
 359. A guardian may be appointed by testament 
 until the minor shall attain a certain age, or until a 
 condition shall be fulfilled; as for example, an appoint- 
 ment until the minor shall attain his age of fourteen 
 years, and then allowing him to choose his own guar- 
 dian under the authority of a competent court ; or un- 
 til another one of the testator's children shall arrive 
 of full age, and that from that time the elder shall be 
 guardian of the younger. 
 
 {a) O'Neill v. Herbert, 0. W. Dudley, Eq. R. 30; Adm. of Johnson v. 
 Ex'r. of Johnson, 2 HiU's Ch. 285. 
 
 (b) Hayward v. Ellis, 13 Pick. 272 ; Karr v. Karr, 6 Dana, 3 ; Hendricks , 
 V. Huddleston, 5 Sm. & Marsh. 422. 
 
 (c) Eichelberger's Appeal, 4 Watts, 84. 
 
 {d) Baker v. Richards, 8 S. & R. 12. See Hampton's Case, 17 S. & R. 
 144. 
 
OF INFANCY AND GUARDIANSHIP. 147 
 
 No. 360, Bookl, part 2, tit. 9, chap. 2, sec. 4, §2, 3. No. 381. 
 
 At common law, if a guardian be appointed for a 
 child under fourteen years old, his duties and obligations 
 cease when the infant arrives at the age of fourteen 
 years and chooses another guardian in his place. (a) 
 But until another is appointed, the first shall act.(&) 
 
 The guardianship ends, of course, when the minor 
 attains his full age of twenty-one years, for no authority 
 can be exercised over a freeman sui juris. 
 
 § 2. — Of the removal or discharge of a guardian by a competent 
 
 court. 
 
 360. A guardian may be discharged at his own re- 
 quest, upon good tiause shown, such as inability from 
 age or other cause to attend to the duties of the trust; 
 but this is never done until he has filed an account and 
 offered to pay the balance, in his hands to his successor. 
 
 He may be removed by the court for cause shown, 
 for example, that he is wasting or mismanaging the 
 estate ; that he refuses or neglects to give security 
 when ordered to do so by the court; and habitual 
 drunkenness, as evidence of mismanagement, has been 
 holden to be a sufficient cause. (c) 
 
 § 3. — Guardianship ends by the death of either the guardian or the 
 
 ward. 
 
 361. On the death of the guardian those who repre- 
 sent him are required to give such an account of his 
 guardianship as it is in their power to make. And if 
 two persons are appointed guardians for one ward, 
 during his minority, or until further order, the guar- 
 dianship is at an end on the death of one of them, and 
 there must be a new appointment. ((Z) 
 
 Immediately on the death of the ward all the guar- 
 dian's functions cease, because the property in his 
 hands has become, by that event, vested in others. 
 
 (a) 1 Bl. Com. 463. 
 
 {b) 7 Cowen, 36 ; Byrne i'. Van Hoesen, 5 John. 66. 
 
 (c) Kettletas v. Gardner, 1 Paige, 488. 
 
 (d) Bradshaw v. Bradshaw, 1 Buss. 528. 
 
148 OF PERSONS, 
 
 No. 362. Book 1, pait 2, tit. iO. No. 365. 
 
 The guardian is then required to make out his ac- 
 count. 
 
 § 4. — ^When the guardianship is discharged by operation of law. 
 
 362. When a female ward marries, at common law 
 the guardianship determines, because immediately on 
 the marriage, the husband becomes her guardian; for 
 it would be inconsistent with the marital rights that 
 any one should have the control of another man's 
 wife, (a) 
 
 TITLE X.— OP MAJORITY, AND OF SANITY AND 
 INSANITY. 
 
 363. The rule that a man attains his majority at 
 the age of twenty-one years accomplished, is perhaps 
 universal in the United States. At this period every 
 man is in the full enjoyment of his civil and political 
 rights ; he has no other guardian than the law, which 
 watches over all alike. He is released from all legal 
 personal ties whatever, which he owed to others on 
 account of his infancy, but he is bound by duty to 
 respect and honor his parents. 
 
 364. But owing to the infirmities of human nature, 
 and of accidents, to which all men are subject, the 
 law has wisely provided for the protection of those 
 who are unable to take care of themselves. When, 
 therefore, an individual loses his reason, or otherwise 
 becomes incapable of governing himself, the law pro- 
 vides a guardian, or committee, to take care of his 
 person and estate, and deprives him of this general 
 right of self-government. 
 
 365. It is to be observed that sanity is always pre- 
 sumed, and that the party who alleges insanity, must 
 prove it, except when it has once been established, 
 and then it must be shown not to exist. (6) 
 
 (a) 2 Inst. 260 ; Kettletas v. Gardner, 1 Paige, 488. See Matter of 
 Whitaker, 4 John. 378 ; Roach v. Garvan, 1 Ves. 159. Vide ante, n. 344. 
 
 (A) 1 Hale's P. C. 33 ; Shelf, on Lun. 36 ; Armstrong v. Tinnons, 3 
 Barring, 342 ; Jackson v. Van Dusen, 5 John. 144 ; Lee v. Lee, 4 McCord, 
 183 ; Jackson v. King, 4 Cowen, 207. 
 
OF SANITY AND INSANITY. 149 
 
 No. 366. Book 1, part 2, tit. 10, chap. 1. No. 370. 
 
 366. Before a person can be deprived of his civil 
 and political rights, on the ground of insanity, an in- 
 quisition must be found, in due form of law, that he 
 is of unsound mind, and the court must give it the 
 sanction of their judgment; then the party is deprived 
 of the right of making contracts, and can exercise no 
 civil or political rights, and in general is not criminally 
 responsible for his acts. This state, in the civil law, 
 is called interdiction. 
 
 367. It will be proper to inquire for what causes a 
 party may be interdicted, or when a commission of 
 lunacy will issue or an inquisition be found ; into the 
 proceedings in lunacy ; of the consequences of finding 
 a man non compos; and of the restoration of the luna- 
 tic: these subjects will be considered in four chapters. 
 
 CHAPTER I.— FOR WHAT CAUSES AN INTERDICTION OR COM- 
 MISSION OF LUNACY WILL ISSUE OR AN INQUISITION 
 BE FOUND. 
 
 368. The causes for which a commission will be 
 issued and an inquisition found are those which arise 
 from a defect of the understanding ; and those which 
 are the effect of bad habits, which the unfortunate 
 subject of them cannot control. They wiU be seve- 
 rally examined. 
 
 369. — 1. By non compos mentis is meant that state 
 of the intellect which renders a person of unsound 
 mind, memory and understanding. This is a generic 
 term, and includes all the species of madness, whether 
 such madness arise from idiocy, sickness, lunacy, or 
 drunkenness. It is nearly similar to insanity.(a) 
 
 370. — 2. Insanity is a continued impetuosity of 
 thought, which for the time being unfits a man for 
 judging and acting in relation to the matter in ques- 
 tion, with the composure requisite for the maintenance 
 of the social relations of life. But it is almost im- 
 possible to give any satisfactory definition of insanity, 
 
 (a) Co Litt. 247 ; 4 Co. 124 ; 1 Phillim. R. 100. 
 
150 OF PERSONS. 
 
 No. 371. Book 1, part 2, tit. 10, chap. 1. No. 373. 
 
 whicli shall, with precision, include aU cases of in- 
 sanity and exclude all others. (a) 
 
 371.^ — 3. Unsoundness of mind, or unsoundness of 
 memory, are expressions which have been used in 
 several statutes, and sometimes indiscriminateily, to 
 signify, not only lunacy, but permanent adventitious 
 insanity, as distinguished from idiocy. (6) 
 
 372.^-4. Idiocy is that condition of mind in which 
 the reflective, or all or part of the affective powers, 
 are either entirely wanting, or are manifested to the 
 least possible extent. It is generally the consequence 
 of organic defect. But although a person may have 
 a weak mind, yet if he appears to be capable of ac- 
 quiring by conversation and instruction such a com- 
 petent understanding as to enable him to govern him- 
 self and his estate, and a memory sufficient to retain 
 the knowledge which he may acquire, he is not to be 
 considered in law as an idiot. (c) According to Lord 
 Coke, persons born deaf, dumb and blind, are to be 
 considered as idiots, because the senses, which are the 
 inlets of knowledge, are closed. ((^) But science had 
 not in his time yet been able to teach such unfortunate 
 beings. Now, such persons being taught not only to 
 comprehend others, but to convey their ideas by 
 writing, (e) would probably be considered as persons 
 born deaf and dumb who can write, and convey their 
 ideas. (/) 
 
 373. — 5. Lunacy is a disease of the mind, which is 
 differently defined as it applies to a class of disorders, 
 or only to one species of them. As a general term, 
 it includes all the varieties of mental disorders, not 
 
 (a) Ray, Med. Jiir. ^ 24. 
 
 \b) Lord Ely's case, 1 Ridg. Pari. Cas. 518 ; 3 Atk. 171. 
 
 (c) Lord Ely's case, 1 Ridg. P. 0. 622. 
 
 {d) Co. Lit. 42 b. 
 
 (e) A young woman named Laura Bridgeman, born deaf, dumb, and 
 bUnd, could read by means of touch, and wrote a very good hand, when 
 seen by the author at the Blind Asylum in South Boston. 
 
 (/) Dickinson v. Blisset, 1 Dick, 268. See Brower «. Fisher, 4 John. 
 Ch. 441. 
 
OF SANITY AND INSANITY. 151 
 
 No. 374. Book 1, part 2, tit. 10, chap. 1. No. 378. 
 
 fatuous ; in this sense, it is synonymous with non 
 compos mentis, or of unsound mind. But in a more re- 
 stricted sense, lunacy is the state of one who has had 
 understanding, but who, by disease, grief or other 
 accident, has lost the use of his reason. (a) 
 
 374. — 6. Imbecility is that state of an individual 
 who, without having entirely lost his reason, is of such 
 weak mind, that he is incapable of governing his per- 
 son or managing his property. Imbecility and weak- 
 ness of mind may exist in different degrees, between 
 the limits of absolute idiotcy on the one hand, and 
 perfect capacity on the other.(6) 
 
 375. — 7. Demency is the condition of one who is 
 habitually deprived of reason. 
 
 876. — 8. Habitual drunkenness is also such a malady, 
 that, in some states, by statutory provisions, it is a 
 sufficient cause for supporting a commission of lunacy, 
 or a commission in the nature of a commission of 
 lunacy. 
 
 377. — 9. Being a spendthrift, is, in some states, a 
 sufficient cause for depriving a person of his civil 
 rights. He is described in a statute to be a person, 
 who, by excessive drinking, gaming, idleness, or de- 
 bauchery of any kind, shall so spend, waste, or lessen 
 his estate, as to expose himself or his family to want 
 and suffering, or expose the town to charge and ex- 
 pense, for support of himself and family, (c) 
 
 378. In order to support a commission of lunacy, 
 there must be proof that the individual is of such un- 
 sound mind, that he is incapable of taking care of his 
 person and of managing his estate. If he can do this, 
 it does not matter how eccentric he may be in other 
 respects. He who is mistaken in speculative ideas, 
 palpably false, is a visionary man, but, if he can take 
 care of his person and manage his estate, he cannot be 
 
 (fl) 1 Bl. Com. 304. 
 
 (J) Shelf, on Lnn. 6 ; Stock on Non Comp. Mentis, 5 ; Dods v. Wilson, 
 Const. R. 448. 
 (c) Rev. Stat, of Verm. 1. 16, c. 65, 1, 9. 
 
152 OF PERSONS. 
 
 No. 379. Book 1, part 2, tit 10, chap. 1. No. 380. 
 
 found to be of unsound mind. Insanity is not always 
 obvious; on the contrary, it is frequently extremely 
 difficult to detect it, as it frequently eludes the grasp 
 of the observer ; whether it did or did not exist at a 
 particular period, is oftentimes a perplexing question 
 to courts and juries. (a) 
 
 379. The state of unsoundness of mind must have 
 been habitual. A man is not to be condemned for 
 isolated acts, for the, wisest is sometimes absent. Sick- 
 ness, a violent passion, a great affliction may tempo- 
 rarily eclipse the clearest mind. But when a man is 
 habitually unreasonable, and his mind manifests itself 
 in a healthy state only by intervals, and the language 
 and the daily acts of the individual are those of an 
 insane man, then there is an habitual state of de- 
 mency.(6) 
 
 But although, in order to found proceedings in 
 lunacy, it is requisite that the insanity should be 
 habitual, yet it is not necessary it should be continued. 
 Some are crazy who have lucid intervals, during which 
 they appear to have their reason, but these lucid 
 periods not being habitual, they are not the less liable 
 to a commission of lunacy. 
 
 380. As the finding a man a lunatic, deprives a citi- 
 zen of the free exercise of his rights ; as it takes away 
 from him the use and disposition of his property, and 
 frequently of his liberty and of his actions ; and as it 
 also causes him extreme displeasure, and is injurious 
 to his reputation, it ought to take place only in cases 
 of necessity, and when his own interest, rather than 
 that of his family, requires it, for his interest is in 
 general alone considered. But, when the man is so 
 crazy that he becomes dangerous to society, the com- 
 mission of lunacy is issued, and the inquisition is found 
 more for the benefit of society than for the advantage 
 of the crazy man. 
 
 (a\ Singleton's Will, 8 Dana, 221. 
 
 \b) See Comwell v. Tennessee, Mart. & Yerg. 147. 
 
OF SANITY AND INSANITY. 153 
 
 No. 381. Book 1, part 2, tit. 10, chap. 2, sec. 1, 2. No. 384. 
 
 381. Upon principle, it seems that a commission of 
 lunacy ought not to be issued against an infant, 
 because, in general, as the court has power over the 
 infant and his estate, the proceeding seems unneces- 
 sary ; but such a commission has been issued upon the 
 ground that, under certain circumstances, there would 
 be more ample power given in lunacy in managing 
 the estate of the ward. (a) 
 
 CHAPTER n.— OF THE PROCEEDINGS IN LUNACY. 
 
 382. In this chapter will be considered — 1, upon 
 whose application a commission will be issued ; 2, the 
 duty of the commissioners ; 3, appointment of a com- 
 mittee, and their duties. 
 
 SECTION 1. — XJPON WHOSE APPLICATION A COMMISSION OF 
 LUNACY WILL BE ISSUED. 
 
 383. The right to apply for a commission of lunacy, 
 is inherent in the father or mother against the child, 
 and vice versa. A husband may prefer a petition 
 against his wife, and vice versa. And any other rela- 
 tion, or even a stranger has been allowed to present a 
 petition for that purpose. (6) But the nearest relations 
 of an alleged lunatic will be preferred to strangers, 
 unless there be a special cause. (c) 
 
 In the absence of relations, or when the public 
 security requires it, as where the lunatic is furious, 
 the attorney general may present the petition. (cZ) 
 
 SECTION 2. OF THE DUTY OF COMMISSIONERS. 
 
 384. The persons appointed by the court having 
 jurisdiction of the case, to execute a commission of 
 lunacy, are called commissioners. They are required 
 
 (a) Shelf, on Lun. 90, 91. 
 
 (h) 1 OoU. on Lun. 377 ; Shelf, on Lun. 93 ; Ex parte Ogle, 15 Ves, 112. 
 
 (c) Ex parte Tomlinson, 1 V. & B. 59. 
 
 (d) 1 Coll. on Lun. 125 ; Shelf, on Lun. 93. 
 
154 OF PERSONS. 
 
 No. 385. Book 1, part 2, tit. 10, chap. 2, sec. 2, § 1, 2. No. 386. 
 
 to execute the commission in a proper place, in a 
 proper manner, and to make a proper return to it. 
 
 § 1. — Of tbe place where the commission must be executed. 
 
 385. It is but reasonable that the commission 
 should be executed in such place that the lunatic may 
 be seen, if required, and where his friends are to be 
 found, who may see that his interests are protected, 
 and where he may himself appear and defend him self, (a) 
 Accordingly the common order of the court or chan- 
 cellor who has jurisdiction of the case, directs that the 
 commission of lunacy shall be executed in or near the 
 place of residence of the supposed lunatic. (&) 
 
 § 2. — Manner of executing the commission of lunacy. 
 
 386. In obedience to the exigency of the commis- 
 sion, the sheriff is bound to summon the number of 
 jurors therein directed; the commissioners and the jury 
 being impanelled sit together, and compose the court 
 which is to try whether the person alleged to be a 
 lunatic, is so or not. The jury are all sworn or 
 affirmed, and then hear such evidence as the commis- 
 sioners admit. The witnesses must be examined 
 openly in the presence of the commissioners, the jury, 
 the alleged lunatic, and all other persons who may 
 happen to be present. 
 
 At least twelve of the jury must agree to find 
 against the alleged lunatic, before the inquisition can 
 be found; and where the statutes require but twelve 
 jurors they must be unanimous. 
 
 The commission and the verdict must be consistent 
 with each other upon the face of the record, that is, 
 the inquisition must be in the words of the commission 
 or in equivalent words. 
 
 (a) Ex parte Cranmer, 12 Ves. 445. See 1 Par. & Fonbl. Med. Jur. 294, 
 n. (a). 
 
 (i) Shelf, on Lun. 95, 96. 
 
OF SANITY AND INSANITY. 155 
 
 No. 387. Book 1, part 2, tit. 10, chap. 2, sec. 2, ^3. No. 387. 
 
 § 3. — Of the inquisition and traverse. 
 
 387. The inquisition is an examination of the facts 
 authorized to be inquired into, made by the commis- 
 sioners and the jury; the instrument of writing on 
 which their decision is made is also called an inquisi- 
 tion. Its requisites are the following : 
 
 It must state where it was taken ; 
 
 When it was taken ; 
 
 Before whom and by what authority ; 
 
 The names of the jurors, and their qualifications ; 
 
 Of what they were charged to inquire ; 
 
 Their finding ; 
 
 The date of their finding ; 
 
 The signatures of the commissioners and of the 
 jurors who consent to it. 
 
 The finding against a person non compos mentis 
 should state the fact positively that he is an idiot, (a) 
 7ion compos mentis, or of unsound mind. Inquisitions 
 have been quashed with returns finding persons in the 
 following conditions, namely: "Not sufiicient to 
 manage his person and estate ;"(&) "not of sufficient 
 understanding to manage her own aflfairs;"(/;) "not a 
 lunatic, but incapable ;"(^) "not a lunatic, yet not 
 proper to take care of his afiairs during his fits; "(e) 
 "weak for the last twenty years ;"(/) "worn out with 
 age, and incapable of managing her own affairs ;"(g) 
 "by reason of old age and sickness is so deprived of 
 reason as to be unable to manage his estate," has each 
 been held not to be a finding of non compos within the 
 statute of Pennsylvania. (A) 
 
 When the inquisition is quashed as repugnant or for 
 
 (a) Prodgers v. Frazier, 3 Mod. 43 ; 1 Vem. 16. 
 (J) Ex parte Read, 1 Atk. 160 ; 2 Inst. 4051. 
 
 (c) Ex parte Haryey, 3 Atk. 169. 
 
 (d) Ex parte A,shton, 3 Atk. 169. 
 
 (e) Ex parte Hals, 2 Ves. sen. 405. 
 {/) Hubsey's Case, 3 Atk. 173. 
 ig) Wall's Case, 3 Atk. 173. 
 
 (h) John Beaumont, 1 Whart. 52. 
 
156 OF PERSONS. 
 
 No. 388. Book 1, part 2, tit. 10, chap. 2, sec. 3, § 1. No. 390. 
 
 ^ 
 
 some other legal cause, the course is to issue a new 
 one by beginning de novo,(a) and not to direct a melius 
 inquirendum. {h) 
 
 388. The principles of the statute of the 2 and 3 
 Edw. VI., c. 8, s. 6, which authorize any person who 
 shall feel himself aggrieved by such office or inquisition, 
 to traverse the same, have been generally adopted 
 either by statutes or in pracfice; so that either the 
 person found to be a lunatic or his friends may claim 
 a trial by jury. (c) 
 
 SECTION 3. OF THE APPOINTMENT OP COMMITTEES. 
 
 389. Upon the return of an inquisition, when there 
 is no traverse, or after the finding of a jury that the 
 party is non compos mentis, a lunatic, or of unsound 
 mind, the court appoint a committee to take care of 
 the person and estate of the lunatic, or to take care of 
 the person only or of the estate only. 
 
 § 1. — Of the committee of the person. 
 
 390. In the selection of the committee of the per- 
 son of a non compos, the next of kin are generally 
 preferred. But the choice is made for the benefit of 
 the lunatic and not of the committee, and, for sufficient 
 reasons, a stranger will be preferred. ((^) 
 
 The committee is required to administer all the 
 comfort and amusement which the nature of the case 
 will admit, and the funds of the lunatic affiard; and 
 when the unhappy person is not under the immediate 
 care of the committee, the latter ought to engage 
 suitable persons to watch over him, and, with the aid 
 of a physician, do all they can to restore him to 
 health, (e) 
 
 (a) Hals' Case, 2 Ves. sen. 405. 
 h) Ex parte Cranmer, 12 Tes. 454. 
 
 (c) Shelf, on Lun. 115. 
 
 (d) Shelf, on Lun. 138, 139. 
 
 (e) Shelf, on Lun. 142. See, as to his duties, Naylor v. Naylor, 4 Dana, 
 346 ; In the matter of Taylor, 9 Paige, 611. 
 
OF SANITY AND INSANITY. 157 
 
 No. 391. Book 1, part 2, tit. 10, chap. 3. No. 392. 
 
 In the performance of its arduous duties, the court 
 upon application will protect and aid the committee 
 by their advice and direction. (a) 
 
 § 2. — Of the committee of the estate. 
 
 391. The heir at law is selected in the appointment 
 of the committee of the estate in preference to others, 
 because he has the greatest inducement to take good 
 care of it,(6) and a relation will, cateris paribus, be 
 preferred to a stranger. (c) 
 
 In the management of the estate, the committee is 
 considered as a mere commissioner of the court, acting 
 under its direction and control, and is responsible to 
 the court as a receiver, removable in its discretion. (tZ) 
 
 The committee is bound to file an account when- 
 ever required by the court, and is liable generally as 
 a guardian, and entitled to a just compensation for its 
 services. 
 
 CHAPTER ni.— CONSEQUENCES OF FINDING A MAN NON COM- 
 POS MENTIS. 
 
 392. When a person has been found to be non com- 
 pos, an idiot, a lunatic, or one of unsound mind, he is 
 deprived of the right of making any contract, bringing 
 or defending an action, or indeed of performing any 
 of the various acts required of a man sui juris. He 
 does everything by his committee. Actions may be 
 brought by the committee in the name of the lunatic, 
 and actions brought against the latter must be 
 defended by the committee. The lunatic cannot 
 exercise any civil or political right, and he is incapa- 
 ble of committing any crime. (e) 
 
 These disabilities relate to the time that the inquest 
 
 (a) In the matter of Lynch, 5 Paige, 120 ; Matter of Heller, 2 Paige, 199; 
 In the matter of Livingston, 9 Paige, 440. 
 
 (b) 1 Bl. Com. 304. 
 
 (c) Ex parte Le Heup, 18 Ves. 227. 
 ((f) Boiling V. Turner, 6 Rand. 584. 
 
 (e) See Stock on Non Comp. Ment. passim. 
 
158 OF PERSONS. 
 
 No. 393. Book 1, part 2, tit. 11. No. 394. 
 
 have found as the commencement of the malady ;(») 
 and acts before ofl&ce found are voidable. (6) 
 
 CHAPTER IV.— OF THE RESTORATION OF THE LUNATIC. 
 
 393. On the recovery of the lunatic and his resto- 
 ration to health, it is unjust to deprive him of his 
 rights, and he may be restored by a proper appUcation 
 to the court. The course is, not to make void from 
 the beginning all the proceedings which have taken 
 place, because that would make all persons who acted 
 under them trespassers. The practice is, to super- 
 sede the commission, or annul all future effects. 
 
 For this purpose the lunatic presents a petition to 
 the court, which should always be in his own name;(c) 
 and, upon inspection, the affidavits of respectable 
 physicians, and other evidence to satisfy the court, a 
 supersedeas will be granted. (t^) But this is not a 
 matter of right, for the court may either direct an issue 
 to try the question of sanity, or order a traverse. (e) 
 
 The effect of the supersedeas is, to restore the lunatic 
 to all his civil and political rights, and to entitle him 
 to the return of his property. 
 
 TITLE XI.— OF MASTER AND . APPKENTICE. 
 
 394. Apprenticeship is a contract entered into 
 between a person who understands some art, trade or 
 business, called the master, and another person, during 
 his or her minority, who is called the apprentice, with 
 the consent of his or her parent or next friend, by 
 which the former undertakes to teach such minor his 
 art, trade or business, and to fulfil such other cove- 
 nants as may be agreed upon; and the latter agrees 
 to serve the master during a definite period of time, 
 in such art, trade or business. The term during which 
 
 (a) Pearl v. McDowell, 3 J. J. Marsh, 658. 
 (i) Jackson v- Gumaer, 2 Cowen, 552. 
 (c) Ex parte Stanley, 2 Ves. sen. 25. 
 \d) Ex parte Bumpton, Mos. 78. 
 (e) Stock on Non Comp. Ment. 113. 
 
OF MASTER AND APPRENTICE. 159 
 
 No. 395. Book 1, part 2, tit. tl, chap. 1, sec. 1, 2. No. 398. 
 
 the apprentice is to serve is also called his apprentice- 
 ship. 
 
 395. In most of the states of the Union particular 
 acts have been made to regulate the important rela- 
 tion of master and apprentice, and to their provisions 
 recourse must be had to ascertain the local laws. 
 Their principles alone will be here considered. 
 
 CHAPTER I.- OP THE PARTIES TO THE CONTRACT OP 
 APPRENTICESHIP. 
 
 SECTION 1. OF THE MASTER. 
 
 396. — 1. When there is but one master, it is clear 
 he must become a party to the agreement. To be 
 bound by the contract, he must be sui juris and 
 capable of entering into engagements generally. One 
 incapable to make a contract cannot therefore take an 
 apprentice, as a married woman or a lunatic. 
 
 397. — 2. When the contract is made with several 
 masters, they should all join in the indenture, and be 
 bound to fulfil the covenants toward the apprentice. 
 An indenture, under seal, executed by one of two 
 partners in trade, on behalf of the firm, was therefore 
 held to' be void.(«) 
 
 SECTION 2. OF THE APPRENTICE; HIS PARENT, GUARDIAN, 
 
 OR NEXT FRIEND. 
 
 398. — 1. Although the infant cannot bind himself 
 alone, and the law has wisely provided a shield for 
 him from oppression in the person of his parent or 
 those who represent him, yet it has left him the 
 choice of his future course of life so far as to require 
 his consent to form the important contract of appren- 
 ticeship; and, except in cases where the local laws 
 have otherwise provided, as in the case of binding out 
 apprentices by the guardians or overseers of the poor, 
 he must be a party to the indenture. (6) 
 
 (a) Taylor's Case, 1 Browne, Rep. Appx. 73. 
 
 (J) Commonwealth v. Moore, 1 Ashm. 123 ; Matter of McDowles, 8 
 John. 328 ; Ivins v. Norcross, 2 Penn. 977 : Stringfleld v. Hieskell, 2 Yerg. 
 546. See 1 Mason, 78 ; 2 Dall. 199 ; 1 Ashm. 267 ; 7 Mass. 147. 
 
160 OF PERSONS. 
 
 No. 399. Book 1, part 2, tit. U, chap. 2. No. 401. 
 
 399. — 2. To protect the apprentice, the father, 
 when living, and not legally incapable, must join in 
 the indenture; (a) and if he be dead, the mother, at 
 least in Pennsylvania, stands in his place. (&) If the 
 infant have a guardian, he may consent in the place 
 of his parents; and if he have none, he may be bound 
 by his next friend, and such next friend need not have 
 been appointed by legal authority, (c) An indenture 
 executed by a sister was held valid, (d) but of course 
 the master of the apprentice cannot act as his next 
 friend, (e) 
 
 ~ 400. — 3. When children have no parents, and 
 become a charge upon the public, the overseers of the 
 poor or similar officers may bind them out under the 
 local laws, without their consent ;(/) but they must in 
 general have gained a settlement in the place where 
 they are bound. 
 
 CHAPTER n.— OF THE SERVICES TO BE RENDERED. 
 
 401. An apprentice must be bound to learn an art, 
 trade, business or mystery.(g) The intention of the 
 law is to place him in a position in which he may 
 make a livelihood; and that while he works to increase 
 
 (a) Commonwealth v. Crommie, 8 Watts & Serg. 339. 
 (A) Supplee's Case, 6 S. & R. 340. 
 
 (c) Commonwealth v. Deacon, 6 S. & R. 526. 
 
 (d) Roache's Case, 1 Ashm. 27. 
 
 (e) Commonwealth v. Kennedy, 1 S. & R. 366. 
 
 (/) Ramsay v. Ellsworth, 1 Penn. 445 ; Commonwealth v. Jennings, 1 
 Browne, 197 ; Curry v. Jenkins, Hardin, 498. 
 
 (g) The usual form of an indenture of apprenticeship is, that the master 
 will teach the apprentice his " art, trade or mystery." An art has been 
 defined to be the power of doing something not taught by nature or instinct ; 
 or, a collection of certain rules for doing any thing in a set form. Eun. Dial. 
 2, p. 74. The arts are divided into mechanical and liberal arts : the former 
 are those which require more bodily than mental labor ; they are usually 
 called trades, and those who pursue them are called artisans or mechanics. 
 The liberal arts are those which have for their sole or principal object works 
 of the mind, and those who are engaged in them are called artists. By 
 trade, in its narrow sense, is understood the business of a particular me- 
 chanic, as the trade of a carpenter, shoemaker, and the like. Bac. Ab. 
 Master and Servant, D 1. Mystery has nearly the same meaning as trade ; 
 it is a word derived from the French mestier, now written metier, and sig- 
 nifies a trade, art or occupation. 2 Inst. 668 ; 2 Hawk. c. 23, s. 11. 
 
OF MASTER AND APPRENTICE. 161 
 
 No. 402. Book 1, pan 2, tit. 11, chap. 3, 4. No. 403. 
 
 the wealth of his master, he shall gather that stock of 
 knowledge which may be useful to him in after life. 
 A minor must therefore be bound to some useful em- 
 ployment, at which he may in after life make his 
 living. 
 
 It has been held that a father may bind his son to 
 serve three years as a sweep; (a) and the overseers of 
 the poor have a right to bind a poor child to do any 
 lawful work the master may see fit to employ him 
 in ;(6) or a girl to learn the art, trade and mystery of 
 a housewife. (c) 
 
 CHAPTER m.— OF THE FORM OF THE CONTRACT OF 
 APPRENTICESHIP. 
 
 402. Though a menial servant may engage himself 
 to serve his master by parol or by writing not under 
 seal, yet to bind an apprentice the form of the contract 
 must be an indenture under seal.((^) An agreement, 
 not sealed, signed by the minor, his mother, and step- 
 father, and by the master, by which it was stipulated 
 that the minor should go on a whaling voyage, and 
 do duty on board the ship, and that the master should 
 furnish an outfit, was held not to constitute a contract 
 of apprenticeship. (e) 
 
 CHAPTER IV.— OF THE DURATION OF THE APPRENTICESHIP. 
 
 403. In general the contract of apprenticeship 
 entered into by a minor cannot extend beyond his 
 minority, but it may be for a less period, according to 
 the agreement of the parties. The general rule is 
 that infants may be bound, the males till the age of 
 twenty-one years, and the females till the age of 
 eighteen. One who is of full age may bind himself 
 
 (a) Commonwealth v. Moore, 1 Browne, 275. 
 
 lb) Bowes V. Tibbits, 7 Greenl. 475. 
 
 (c) Commonwealth v. Jennings, 1 Browne, 197. 
 
 {d) Ex parte Ruggles, 10 S. & R. 416 ; Hall v. Gardner, 1 Mass. 172 ; 
 Dowd V. Davis, 4 Dev. 61 ; Squire v. Whipple, 1 Verm. 69. 
 
 (e) Nickerson v. Easton, 12 Pick. 110. In Ohio, and perhaps some other 
 states, the agreement need not be sealed. Walk. Intr. 245. 
 
 Vol. I. 11 
 
162 OF PERSONS. 
 
 No. 404. Book 1, part 2, tit. 11, chap. 5. No. 404. 
 
 apprentice,(a) but he is not liable to the summary 
 remedy given, in cases of apprentices, by the act of 
 assembly of Pennsylvania ; the proper remedy against 
 such apprentice is by an action of covenant on the 
 indenture. (&) 
 
 CHAPTER v.— OP THE ASSIGNMENT OF THE INDENTURE. 
 
 404. In the selection of a master the parties are 
 always influenced by something of a personal nature ; 
 either the master is the friend of the family of the 
 apprentice, or he is remarkable for his good morals, or 
 knowledge of his trade, or for some other considera- 
 tion of a personal nature which has induced the choice, 
 and the apprentice is committed to his care in conse- 
 quence of this good opinion, and in the full confidence 
 that he will not only instruct him in his trade or call- 
 ing, but will also be careful of his health, morals and 
 safety. 
 
 For these reasons, unless there is an express agree- 
 ment in the indentures, an apprentice cannot be 
 assigned over to another master, for his instruction 
 and care, although it be apparent that the new master 
 could and would instruct him to as great advantage as 
 the first. (c) And when there is power given by the 
 indenture to assign, it must be exercised by the per- 
 sons authorized ; where the indenture is to the master, 
 his heirs and assigns, not naming his executors, the 
 latter cannot assign it.{d) 
 
 As the contract requires for its validity the consent 
 of the father or of those who stand in loco parentis, it 
 follows that it cannot be changed without their con- 
 sent ; an agreement between the master and appren- 
 tice, altering the persons to whom the latter was 
 bound, is invalid, unless ratified by the parent or those 
 
 (a) Commonwealth v. St. Germans, 1 Browne, 24. 
 
 (b) Commonwealth v. Sturgeon, 2 Browne, 205. 
 
 (c) Hadnut v. Bullock, 3 Marsh. 300. See Cochran v. Davis, 5 Litt. 118 ; 
 Davis V. Cockbum, 8 Mass. 299. 
 
 (d) Commonwealth v. King, 4 S. & R. 109. 
 
OF MASTER AND APPRENTICE. 163 
 
 No. 405. Book 1, part 2, tit. 11, chap. 6, sec. 1. No. 406. 
 
 standing in loco parentis,{a) but this is perhaps owing 
 to the peculiar wording of the statute of Pennsylvania, 
 where the decisions were made. 
 
 Between the master and the assignee the assign- 
 ment is valid as a covenant for the services of the 
 apprentice, though such assignment may not bind the 
 apprentice, and if the latter serve the new master, 
 there is no failure of the consideration of the assign- 
 ment. (6) If, however, the apprentice continue with his 
 new master, with the consent of all parties and his 
 own, it is a continuation of the apprenticeship. (c) 
 
 CHAPTER VI.— OF THE DUTIES OF THE MASTER. 
 
 405. The principal duties of the master are, 1, to 
 teach the apprentice ; 2, to fulfil all #;he covenants he 
 has agreed to perform; 3, to protect the apprentice 
 and defend him. 
 
 SECTION 1 . OF THE OBLIGATION TO TEACH THE APPRENTICE. 
 
 . It 
 
 406. The principal object of putting a minor appren- 
 tice is to cause him to be taught some useful employ- 
 ment. The master is, therefore, bound to instruct 
 him, bona fide, in the knowledge of the art or trade he 
 has undertaken to teach him ; but he is not bound to 
 disclose secrets which are peculiar to himself, and 
 which are his exclusive property, unless by his cove- 
 nant in the indenture he has agreed to do so, or such 
 agreement may be presumed from the circumstances. 
 He cannot dismiss him, on account of his want of 
 aptitude to learn the trade, but having in good faith 
 endeavored to teach him, he will be excused for not 
 making a good workman, if the apprentice is incapa- 
 ble of learning the trade. (rf) 
 
 (a) Commonwealth v. Vanlear, 1 S. & R., 248 ; Commonwealth t». Jones, 
 3 S. & R. 158. 
 
 (b) Nickerson v. Howard, 19 John. 113. 
 
 (c) The King v. Stockland, Dougl. 70. 
 \d) Barger v. Caldwell, 2 Dana, 131. 
 
164 OF PERSONS. 
 
 No. 407. Book 1, part i, tit. 11, chap. 6, sec. 2, 3. No. 408. 
 
 3ECTI0N 2. — OF THE OBLIGATION OF THE MASTER TO PERFORM 
 HIS COVENANTS. 
 
 407. Standing in the place of the father, the master 
 is required to watch over the morals of the apprentice ; 
 and not only by prudent advice, but by his exemplary 
 conduct, and fulfilling all the duties of a father toward 
 him, encourage him in the path of virtue. He is also 
 bound to keep toward him all his covenants mentioned 
 in the indenture ; and as the covenants on the part of 
 the apprentice to serve, and of the master to teach and 
 provide, are independent, if the apprentice by reason 
 of an incurable accident or illness, becomes unable to 
 learn, the master must still fulfil his engagement, and 
 he cannot dismisg the apprentice or put an end to the 
 contract by his own authority, (a) 
 
 He cannot abuse his authority, either by bad treat- 
 ment or by employing his apprentice in menial em- 
 ployments, wholly unconnected with the business he 
 has to lea»n ; nor send him out of the state where 
 he lives, unless such removal is provided for in the 
 indenture, or arises from the nature of the contract, as 
 in the case of an apprentice to a seaman. (&) 
 
 He cannot dismiss his apprentice except by applica- 
 tion to a competent tribunal, upon whose decree, in a 
 proper case, the indenture may be cancelled. 
 
 After the apprenticeship is at an end, he cannot 
 retain the apprentice on the ground that he has not 
 fulfilled his contract, unless specially authorized by 
 statute. 
 
 SECTION 3. OF THE DUTIES OF THE MASTER TO PROTECT 
 
 HIS APPRENTICE. 
 
 408. The master may justify an assault and bat- 
 
 (a) Powers v. Ware, 2 Pick. 451. 
 
 (J) Commonwealth v. Edwards, 6 Binn. 202 ; Commonwealth v. Deacon, 
 6 S. & R. 526 ; Coffin v. Bassett, 2 Pick. 357. 
 
OF MASTER AND APPRENTICE. 165 
 
 Wo. 409. Book 1, part 2, tit. U, chap. 7, 8. No. 410. 
 
 tery in the lawful defence of his apprentice. In this 
 respect he has the same right as if he were his son. 
 
 CHAPTER Vn.— OF THE RIGHTS OF THE MASTER. 
 
 409. The master is entitled to the services of the 
 apprentice and to all the profits arising from his law- 
 ful labors. In case his apprentice is induced to leave 
 him, or is harbored by a stranger, to his prejudice, the 
 master may recover damages against the wrong-doer 
 by action; but in such case the master must prove 
 the defendant knew the condition of the apprentice ; 
 for, if he was not aware of that fact, he was not guilty 
 of any offence against the master, and, as every one 
 is presumed to be free, the burden of proving such 
 knowledge will rest upon the master »(a) Though the 
 hiring an apprentice without knowing his condition 
 will not render the defendant liable, yet harboring 
 him afterward wiU subject him to an action, without 
 a demand or refusal. (&) 
 
 The master m.^y enforce all his lawful commands, 
 and, for that purpose may correct his apprentice with 
 that moderation which a father would use toward his 
 children. In this he will be fully justified, but any 
 excessive or cruel beating will subject him to the con- 
 sequences of an unlawful and unjustifiable battery. 
 
 CHAPTER Vm.— OP THE DUTIES AND RIGHTS OP AN 
 APPRENTICE. 
 
 410. For all these advantages, which the appren- 
 tice reaps from the contract of apprenticeship, he is, on 
 his part, bound to obey all his master's lawful com- 
 mands; to take care of his property and promote 
 his interest ; and to perform all the covenants he has 
 entered into by the indenture ; to use his best endeavors 
 to learn the trade or business he has undertaken to 
 acquire, and work at it diligently for the benefit of 
 
 (a) Stewart v. Simpson, 1 Wend. 376 ; Ferguson v. Tucker, 2 Har. & 
 John. 182. 
 (4) 2 Harr. & John. 182. 
 
166 OF PERSONS. 
 
 No. 411. Book 1, part 2, tit. 11, chap. 9, 10. No. 413. 
 
 his master ; to remain in his master's service during 
 all the term for which he has engaged ; but fi^om 
 this last general rule must be excepted the case when 
 the apprentice becomes unable to fulfil his engage- 
 ment, on account of the derangement of his health 
 or other infirmity which would render him perma- 
 nently unable to follow the, profession he desires to 
 embrace. 
 
 411. The apprentice may justify an assault and 
 battery in the lawful defence of his master. 
 
 CHAPTER IX.— OP REMEDIES BETWEEN THE MASTER AND 
 APPRENTICE. 
 
 412. The statutes which regulate the contract of 
 apprenticeship ^ve summary remedies to both the 
 master and apprentice for the violation of the cove- 
 nants entered into between them. These disputes 
 are in general referred to the sessions of the peace, 
 and the power of these courts extends generally to all 
 cases, even to the dissolution of the .contract. 
 
 CHAPTER X.— OF THE DISSOLUTION OF THE CONTRACT. 
 
 413. This contract may be dissolved in various 
 ways, the principal of which are the following : 
 
 1. By the agreement of the parties; but in this 
 case not only the consent of the apprentice would be 
 necessary, but also that of the father, guardian, or 
 next friend ; for as it was required to make the con- 
 tract, it is, but reasonable that the contract should not 
 be dissolved without their assent. 
 
 2. By death of the master or the apprentice. This 
 being a personal contract, it cannot be performed by 
 any other. No one can teach the apprentice but the 
 master selected for that purpose ; but his estate is lia- 
 ble for all the other obligations for which he would 
 have been responsible. 
 
 3. When an apprentice is bound to a firm or part- 
 nership, and the partnership is dissolved, one partner 
 
OF MASTER AND APPRENTICE. 167 
 
 No. 413. Book 1, part 2, tit. 11, chap. 10. No. 413. 
 
 has as good a right to the services of the apprentice 
 as the other, and as he cannot serve both, he is per- 
 haps not bound to serve either, (a) 
 
 4. On a complaint to the proper tribunal, and proof 
 of some grave abuse of power, or great neglect in the 
 performance of the covenants in the indenture, the 
 indenture will be cancelled. This power is generally 
 given to the courts by the local laws. 
 
 (a) Hiatt v. Gilmer, 6 Iredell, 450. 
 
168 
 
 BOOK II.— OF THINGS, 
 
 PART I.— OF THE GENERAL NATURE OF THINGS. 
 
 414. Having considered the rights and duties of 
 persons, which form the subject of the first book, it 
 is proper now, in this second book, to examine, accord- 
 ing to our plan, the things to which persons are enti- 
 tled, leaving for the third, fourth, and fifth books, the 
 consideration of actions, or the remedies for the infrac- 
 tions of the rights to those things or to property. 
 
 415. By the word things is understood whatever 
 may become the object of a right, or of an obligation, 
 whatever may belong to some one, all objects from 
 which a man may receive some benefit, some advan- 
 tage or something useful. Even man himself, his 
 actions and his rights, in those states where slavery is 
 admitted, may be considered things, because they may 
 become the object of another's right. 
 
 416. Actions, also, which in another point of view, 
 are the third object of law, may be classed with things 
 when they are considered as a right belonging to a 
 man, and making a part of his property, the object of 
 the action being to obtain a thing belonging to us, 
 though not in our possession. Hence a distinction is 
 made between a thing in possession, or a chose in pos- 
 session, and a thing not in possession, or a chose in action, 
 for which an action must be brought to get possession. 
 
 417. Things and property are not in law synonymous 
 expressions. The first is much more extended and gene- 
 ral than the latter ; it comprehends evey thing which 
 exists, or which may be of some use to man, although 
 he does not possess it, and, as yet, it makes no part of 
 his patrimony. For example, the air, the sea, wUd 
 animals, and desert lands, which are possessed by no 
 one, and to which no one has a title, are things, and 
 not property. Property, on the contrary, comprehends 
 whatever we possess or are entitled to, as a house, a 
 
OF THINGS. 169 
 
 No. 418. Book 2, part 1, chap. 2, sec. 1. No. 422. 
 
 - " "" ■ — ■ ■■■ 
 
 horse, a ring, &c., for it ia nothing but the possession 
 ■which we have, or to which we are entitled, which 
 gives to things the character of property. In other 
 words, things are every object which we may possess, 
 and property whatever we possess or are entitled to. 
 
 CHAPTER I.— OF THINGS CORPOREAL AND INCORPOREAL. 
 
 418. The first division of things is in relation to 
 their nature. It is into things corporeal and things 
 incorporeal. 
 
 SECTION 1. OF THINGS CORPOREAL. 
 
 419. Corporeal things are those which are visible 
 and tangible, as a house, a field, a horse, a book, a 
 jewel, &c. 
 
 SECTION 2. OP THINGS INCORPOREAL. 
 
 420. Things incorporeal are those which are not the 
 objects of sensation, but are the creatures of the mind, 
 being rights issuing out of a thing corporeal, or 
 concerning or exercisable within the same ; as an 
 obligation, a servitude, an easement, or a usufruct, (a) 
 This subject will be considered under another head. 
 
 CHAPTER XL— OP THINGS WHICH ARE THE OBJECTS OF 
 PROPERTY. 
 
 421. Things considered as to the property which 
 may be had in them, are capable of being possessed 
 by single persons exclusively of all others, by the 
 Roman or civil law, then said to be in patrimonio ; or 
 incapable of being so possessed, when they are said to 
 be extra patrimonium. 
 
 SECTION 1. OP THINGS IN WHICH PROPERTY MAT BE HAD. 
 
 422. — 1. Things in patrimonio are divided into 
 corporeal and incorporeal when considered as to their 
 nature ; and the corporeal are again divided into 
 
 (a) Domat, Lois Civiles, liv. prel. t. 3, s. 2, $ 3 ; Poth. Traite des Choses, 
 in princ. 
 
170 OF TfflNGS, 
 
 No. 423. Book 2, part 1, chap. 2, sec. 2, J 1, 2. No. 426. 
 
 movable or personal, and immovable or real, when 
 considered as to their kinds. 
 
 These things are capable of becoming objects of 
 property, and may be transferred from hand to hand, 
 and passed either by descent or by purchase. They 
 are things in commerce, the title to which is guaran- 
 teed to their owners by the law. 
 
 SECTION 2. — OF THINGS WHICH CANNOT BE THE OBJECTS OP 
 PKFVATE PROPERTY. 
 
 423. — 2. Things extra patrimonium, or those in 
 which no private property can be had by individuals, 
 exclusively from the rest of mankind, are, 1, those 
 which are common to all men; 2, those which belong 
 to the public generally; 3, those which belong to cities 
 or municipal corporations. 
 
 § 1. — Of things common. 
 
 424. Things common are the heavens, the Ught, 
 the air, and the sea, which cannot be appropriated by 
 any man or set of men, so as to deprive others of the 
 use of them. (a) It is evident that no private property 
 
 ■ can be had in the heavens, the light, the air, and the 
 sea, which belong equally to all men, and are indis- 
 pensable to their existence. All men have the right 
 to navigate the sea, and to fish there. (&) 
 
 § 2. — Of things public. 
 
 425. Res puUica, or things public, are those the 
 property of which is in the state, and their use is 
 common to all its members, as navigable rivers, 
 harbors, the sea shore, highways, bridges, and the like. 
 
 426. — 1. A river is a natural collection of waters, 
 arising from springs or fountains, which flow in a bed 
 or canal of considerable width and length, toward the 
 sea.(c) Rivers are public or private. A private 
 
 (a) Dom. Lois Civ. liv. prel. t. 3, s. 1, ^§ 5, 6 ; Inst. 2, 1, 1. 
 (J) Dom. Lois Giv. Droit Public, liv. 1, t. 8, s. 2. 
 (c) Reynolds v. McArthur, 2 Pet. 417 ; Jackson v. Halstead, 5 Cowen, 
 216. 
 
OF THINGS. 171 
 
 No. 437. Book 2, part 1, chap. 8, Bee. 2, ^ 8. No. 430. 
 
 river is one which, owing to its shallowness, or in 
 consequence of the obstructions which are in it, cannot 
 commonly he navigated, and belongs to private 
 individuals, but it is still subject to public use when it 
 can be navigated. (a) 
 
 427. Public rivers are those in which the pubhc 
 have an exclusive right, that is, such as cannot be 
 appropriated to private use. They are navigable or 
 not navigable. 
 
 428. The term navigable rivers, in a technical sense, 
 means a river in which the tide flows. The soil or bed 
 of such a river belongs not to the riparian proprietor, 
 but to the public. (6) 
 
 429. Public rivers, not navigable, are those which 
 belong to the people in general, as public highways ; 
 the soil of these rivers, belongs generally to the riparian 
 owner, but the public have the use of the stream, and 
 the authors of nuisances or impediments on them may 
 be punished. (c) But in some states, as Alabama and 
 Pennsylvania, the bed of the great rivers belongs to 
 the public, and not to the riparian owner. ((^) 
 
 430. By the ordinance of congress of 1787, art. 4, 
 relating to the north-western territory, it is provided, 
 that the navigable waters leading into the Mississippi 
 and the St. Lawrence, and the carrying places between 
 the same, shall be common highways and forever 
 free.(e) This provision does not deprive the owner of 
 any such river, of the right to the bed of the river 
 when he owns both the banks, or his right to the 
 centre of the stream, the dividing line, or filum aquae, 
 when he owns one side only.(/) 
 
 (a) Executors of Gates v. Wadlington, 1 MoCord's R. 580. 
 (h) Home v. Richards, 4 Call. 441. See Pollard v. Hagan, 3 How. U. S. 
 212 ; Jackson v. Lewis, Cheves, 259. 
 
 (c) Ang. on Wat. Courses, 202 ; Call, on Sewers, 78. 
 
 (d) Carson v. Blazer, 2 Binn. 475 ; Shrunk ii. Schuylkill Co., 14 S. & R. 
 71 ; Bullock v. Wilson, 2 Port. 436. 
 
 (e) 3 Story's Laws of U. S. 2077. 
 
 (/),Gavitt V. Chambers, 3 Ohio Rep. 496. See Palmer v. Cuyabroga 
 County, 3 McLean, 226. 
 
172 or THINGS. 
 
 No. 431. Books, part 1, chap. 2, sec. 2, §2. No. 434. 
 
 431. The owner of the land adjoining a navigable 
 river, has an exclusive right to the soU between high 
 and low water mark, for the purpose of erecting 
 wharves or buildings. (a) The shore of a fresh water 
 river is where the land and water ordinarily meet. (6) 
 
 432. When insensible additions are made to the 
 land or shore by the washings of the sea or river, such 
 additions are called alluvion. In general, the proprietor 
 of the land to which such alluvion attaches, is entitled 
 to the addition. The characteristic of alluvion is its 
 imperceptible increase, so that it cannot be seen what 
 is added each moment of time. (c) 
 
 433. Alluvion differs from avulsion. By the latter 
 expression is meant the sudden change made by force 
 of the water by which the soil is taken to a considera- 
 ble extent and carried from one man's estate to that 
 of another. In such case the property so removed 
 belongs to the first owner, (c?) 
 
 434. When an island is formed out of the sea or in 
 a river, by slow and imperceptible accretion, at 
 common law, it belongs, in the case of the sea or a 
 navigable river, to the sovereign, and in case of rivers 
 not navigable, that is, above that point where the sea 
 ebbs and flows, to the owners of the adjoining lands.(e) 
 
 An island in a river not navigable, which has not 
 been otherwise appropriated, if on one side of the 
 dividing line, belongs to the owner of the bank on that 
 side; if in the middle of the river, the owners of the 
 
 (a) East Haven v. Hemingway, 7 Conn. 186 ; 1 Halst. Rep. 1 ; but see 
 Commonwealth v. Fisher, 1 Pennsyl. 102. 
 
 (b) Ex parte Jennings, 6 Cowen, 547. 
 
 (c) See 2 Bl. Com. 262, and note by Chitty ; 1 Swift's Dig. Ill; Coop. 
 Just. lib. 2, t. 1 ; Schultes on Aq. Rights 116 ; 2 Am. Law Jour. 282, 
 293 ; Inst. 2, 1, 20 : Dig. 6, 1, 23 ; Dig. 89, 2, 9 ; Dig. 41, 1, 7 ; New 
 Orleans v. United States, 10 Pet. 662 : Deerfield v. Arms, 17 Pick. 41. 
 
 (d) Harg. Tr. De Jure Maris, etc. 27 ; Schultes on Aq. Rights, 115 to 
 138. 
 
 (e) Hale, De Jure Maris, pars 1, c. 6 ; Bract, lib. 2, c. 2 ; Inst. 2, 1, 
 28 ; Dig. 41, 1. In Pennsylvania, it will be remembered the beds of the 
 great rivers belong to the public, although the tide does not ebb and flow 
 there. 
 
OF THINGS. 173 
 
 No. 435. Books, parti, chap. 2, sec. 2, } 2. No. 440. 
 
 banks are entitled to it in severalty; in such case, the 
 dividing line runs as if there were no island in the river. 
 When there are several riparian owners, the island is 
 apportioned according to their lines on the main. (a) 
 
 435. — 2. A harbor is also pubHc property; it is a 
 place where ships ride with safety; a navigable water 
 protected by the surrounding country; a haven. (&) A 
 road, a creek, a port, an arm of the sea, are also public 
 property, in which no individual can .have any private 
 right. 
 
 436. — 3. A road is defined by Lord Hale(c) to be an 
 open passage to the sea, which, from the situation of 
 the adjacent land, and its own depth and wideness, 
 affords a secure place for riding in safety and anchor- 
 ing vessels, ((i) 
 
 437. — 4. A creek is an inlet from the sea, or a 
 narrow passage from the shore on each side of it, 
 which gives no harbor to ships, and is endowed with 
 no privilege. (e) 
 
 438. — 5. A port is a place within land, protected 
 against the waves and winds, where the water is of a 
 sufficient depth to afford to vessels a place of safety. 
 It is a place to which officers of the customs are 
 appropriated, and which includes the privilege and 
 guidance of all members and creeks which are allotted 
 to it.(/) 
 
 439. — 6. An arm of the sea is a place where the sea 
 or tide flows or reflows.(g) This term includes bays, 
 roads, creeks, coves, ports and rivers, where the water 
 flows and reflows, whether it be salt or fresh. (A) 
 
 440. — 7. The sea shore is in general public property. 
 
 (a) Ingraham v. Wilkinson, 4 Pick. 268. 
 
 (b) Hale, De Port. Mar. c. 2 ; 2 Chit. Com. Law, 2. 
 
 (c) De Port. Mar. p. 2, c. 2. 
 
 (d) See 2 Chit. Com. Law, 4, 5. 
 
 (e) Com. Dig. Nayigation, C. See 1 Chit. Com. Law, 726 ; Postlewaite's 
 Com. Diet. h. t. 
 
 (/) 1 Chit. Com. Law, 726 ; Postlewaite's Com. Diet. h. t. 
 (g) Constable's Case, 5 Co. 107. 
 (h) Aug. on Tide Wat. 61. 
 
174 OF THINGS. 
 
 No. 441. Book 3, part 1, chap. 2, see. 2, J 2. No. 443. 
 
 which cannot be exclusively appropriated by indi- 
 viduals. It is defined to be that space of land on the 
 borders of the sea, which is alternately covered and 
 left dry by the rising and falling of the tide ; or in 
 other words, that space of land between high and low 
 water, (a) 
 
 According to the Roman law, the sea shore included 
 the land as far as the greatest wave extended in 
 winter: est autem littus maris, quateniis hibernus fluctus 
 maximus excurrit.{b) The sea shore is said to be 
 public as far as the place where the highest tides rise: 
 littus publicum est eatenus, qiia maxime fluctus excBstuat.{c) 
 
 441. — 8. The general convenience requires that all 
 highways should belong to the public, and that no one 
 should appropriate to his own use such highway to the 
 inconvenience of the people. A highway is the generic 
 name for all kinds of roads. They are universally 
 laid out by public authority, and repaired at the public 
 expense, or by direction of law. 
 
 442. — 9. A road or highway, is a passage through 
 the country, or some parts of it, for the use of the 
 people. ((^) Roads are public or private. 
 
 443. Public roads are of two kinds; first, such as 
 are laid out by the government itself, and kept in 
 repair out of the public treasury of the nation, the 
 state, a county or other district ; and secondly, those 
 which are made and laid out by authority of law, by 
 a corporation or company of individuals, and which 
 are kept in repair by them. 
 
 1st. The public have the use of roads of the first 
 class, but the owners of land over which they pass 
 have a fee in such road, subject to the easement of the 
 public ; and the owners of the sides have primA facie a 
 
 (a) Harg. Tr. 12 ; Stover v. Freeman, 6 Mass. 435 ; Commonwealth v. 
 Charlestown, 1 Pick. 180 ; Peck v. Lockwood, 5 Day, 22 ; Ang. on Tide 
 Wat. 34 ; 3 Kent, Com. 847. See Co. Litt. 48, b ; Handley's Lessee v. 
 Anthony, 5 Wheat, R. 374 ; Seratton v. Brown, 4 B. & C. 485. 
 
 (b) Inst. 2, 1, 3. 
 
 Ic) Dig. 50, 16, 112. See Civ. Code of Lo., art. 442. 
 (d) Respublica v. Arnold, 3 Yeates, 421. 
 
OF THINGS. 175 
 
 No. 444. Book 2, part 1, chap. 2, sec. 2, § 2. No. 445. 
 
 fee in it to the centre of the road, ad medium filum vm, 
 subject of course to the public right ; but where the 
 boundary excludes the highway, it is of course 
 excluded, (a) 
 
 The proprietor of the soil of such roads, is therefore 
 entitled to all the fruits which grow by its side, (6) and 
 to all the mineral wealth they contain. (c) 
 
 Whenever such roads are vacated, that is, abandoned 
 by public authority, the easement of the public is gone, 
 and the land, discharged from it, reverts to its former 
 owner. 
 
 2dly. Turnpikes, railroads, and other ways, autho- 
 rized by the government to be made by corporations, 
 or public companies, are the second class of public 
 roads. These are made and kept in order by the 
 companies to which they respectively belong, but the 
 public have a right to travel over them, and no citizen 
 can be prevented from going on them, in such a way 
 as is regulated by law. In general, persons travelling 
 on these roads are required to pay a toll. 
 
 These corporations or companies have, generally, 
 only the right of passage over the land, which remains 
 the property, subject to the easement, of the original 
 owner of the land or his assigns. 
 
 444. Private roads are such as are used by private 
 individuals only, and are not wanted for the pubhc 
 generally. 
 
 445. — 10. For the convenience of the public, bridges 
 have to be made in order to go over rivers, and other 
 places impassable without them. A bridge is a build- 
 ing constructed over a river, creek, or other stream, 
 or over a ditch or other place, in order to facilitate the 
 passage over the same. They are of two kinds, pubUc 
 and private. 
 
 [a] Peck D. Smith, 1 Conn. 103 ; Chatham v. Brainerd, 11 Conn. 60 ; 
 Tyler v. Hammond, 11 Pick. 193. See Cook v. Green, 11 Price, 736 ; 
 Headlam v. Headley, Holt's Case, 463. 
 
 (J) Stackpole v. Healy, 16 Mass. 33. 
 
 (c) 1 RoU. Ab. 392, 1. 5. 
 
176 OF THINGS. 
 
 No. 446. Book 2, part 1, chap. 3. No. 447. 
 
 Public bridges may be divided into, first, those which 
 belong to the public, as state, county or township 
 bridges, over which all the people have a right to 
 pass, with or without paying toll. These are built by 
 public authority at the public expense, either of the 
 state itself, or a district or part of the state. 
 
 Secondly, those which have been built by compa- 
 nies, authorized by the government, over which the 
 people have a right to pass, on the payment of a toll 
 fixed by law. 
 
 Thirdly, those which have been built by individuals, 
 and which have been dedicated to public uses. (a) 
 
 A private bridge is one built by a private person 
 over his own ground, without any special authority 
 from the government; such a bridge is not considered 
 public, although it may be occasionally used by the 
 public. (6) 
 
 § 3. — Of things which belong to cities or municipal corporations. 
 
 446. Things which belong to cities or municipal 
 corporations, res universitatis, belong so far to the 
 pubUc that they cannot be appropriated to private use. 
 They belong to the corporation or body politic in 
 respect of the property in them; but as to their use 
 they appertain to those persons who are of the corpo- 
 ration, or who happen to be within the same; such as 
 public squares, market houses, streets, and the like, 
 which cannot be sold for private use. They difier 
 from things public, because the latter belong to the 
 nation or the state. The lands or other revenue 
 belonging to a municipal corporation do not fall within 
 this class, but are juris privati. 
 
 CHAPTER ni.— OF THE DIPPERENT KINDS OP THINGS ESTAB- 
 LISHED AS PROPERTY. 
 
 447. Things as to their different kinds estabhshed 
 
 (a) The King v. West Riding of Yorkshire, 2 East, 356 ; King v. North- 
 ampton, 2 M. & S. 262. 
 
 (b) The King v. Bucks, 12 East, 203. 
 
OF THINGS. 177 
 
 No. 448. Book 2, part 1, chap. 4. No. 4S1. 
 
 by law, and considered as property, are divided into 
 things personal, things real, and things mixed. 
 
 448. Viewed in this light, things are property, 
 which is a right a man has in lands and chattels to the 
 exclusion of all others. 
 
 449. In its most extensive sense, the word estate 
 is applied to signify every thing of which riches or 
 fortune may consist, and includes personal and real 
 property ; hence we say personal estate, real estate. 
 And sometimes property is composed of both personal 
 and real, and is then called mixed estate. 
 
 450. It is very important that the distinction be- 
 tween personal and real estate should be clearly 
 marked. The manner of acquiring real and personal 
 estate is not the same ; nor is the way they are seve- 
 rally enjoyed, and frequently the heirs of the one are 
 not of the other. Sometimes a testator bequeaths his 
 real estate to one person and his personal to another. 
 
 Real estate is subject to the dower of the wife and 
 curtesy of the husband. On marriage, at common 
 law, the personal estate of the wife in possession, 
 passes absolutely to the husband, and the real remains 
 hers, subject to his curtesy. 
 
 Things attached to the freehold, as jfixtures, are 
 sometimes real and at other times personal; and things 
 which are personal in their nature, as the keys of a 
 house, are considered as real estate in consequence of 
 their destination ; other personal things become real, 
 either by their accession or by the use to which they 
 are applied. And things which are real become per- 
 sonal on being separated from the realty, as fruits, 
 coal, etc. 
 
 CHAPTER IV.— OF THE ORIGIN AND NATURE OF PERSONAL 
 PROPERTY. 
 
 451. To give a clear view of this subject, it will be 
 requisite to inquire into, first, the origin and right of 
 property; secondly, the possession separated from 
 
 Vol. I. 12 
 
178 OF THINGS. 
 
 No. 452. Book 2, part 1, chap. 4, sec. 1. No. 452. 
 
 property ; thirdly, what is property and its analysis ; 
 fourthly, the division of property into perfect and 
 imperfect. 
 
 SECTION 1. OF THE ORIGIN AND RIGHT OP PROPERTY. 
 
 452. Although the rights annexed to property and 
 those which are derived from it are now very ex- 
 tended, such was not the case formerly. Property was 
 confounded with possession, and was lost with it. 
 Before the establishment of the civil state, the right 
 of the first occupant could not be fairly disputed, for 
 when all other things were equal, it was just and 
 natural that the right of the possessor should be pre- 
 ferred, for to deprive him of possession, it required a 
 right greater than his own. 
 
 Possessed for a great length of time of a field or a 
 tree, and having had the use of it, the idea soon oc- 
 curred that he who abandoned his possession with an 
 intention of returning, preserved some right of prefer- 
 ence over others who had never had such possession, 
 and who would, themselves, in turn lay claim to some 
 other field or some other tree which they also had 
 possessed for a long time. It was by this continued 
 possession that the right not only to the use but to the 
 substance became in the end so fully established in the 
 man who had so long occupied the thing. 
 
 This right being once established was soon considered 
 as capable of being transferred to others by the owner ; 
 and, at his death, his things being naturally taken 
 possession of by his relatives who attended him on his 
 death bed, the rights of the latter were, in the course 
 of time, considered as fully established as his own had 
 been. 
 
 The municipal or civil law has adopted the maxim 
 that property once acquired is lost only by the act of 
 the owner, (a) and that it preserves to the owner his 
 
 (o) This requires a qualification, for though true in general it is not so 
 
OF THINGS. 179 
 
 No. 453. Book 2, part 1, chap. 4, sec. 2. No. 453. 
 
 right to it, even after he has lost the possession with- 
 out his consent, if it is to be found in the hands of a 
 third person; unless, indeed, such third person shall 
 have acquired a right to it by so long a time as to 
 amount to a prescription. 
 
 Thus, by the law, property and possession, which, 
 in primitive ages were confounded, became two dis- 
 tinct and independent things ; two things which have 
 nothing common between them: property .is a right, 
 a legal faculty; possession is a fact. 
 
 Property, then, is a moral quality inherent in the 
 thing, which operates as a bond of union between the 
 owner and the tjiing, and which in general can be 
 severed only by his act. 
 
 This right of claiming the thing, wherever he should 
 find it, is what forms the prracipal and distinctive 
 character of property in the civil state. 
 
 SECTION 2. OF POSSESSION AS SEPARATED FROM PROPERTY. 
 
 453. At the first view possession seems to be a 
 thing clearly understood; according to Blackstone, it 
 is " when a man has not only the right to enjoy, but 
 hath the actual enjoyment of the. thing. "(a) But the 
 subject is full of difficulty. The idea of possession will 
 be different according to the nature of the object, or 
 as it respects things real or things personal. And 
 when we come to consider the persons who possess, it 
 will not be found easy to determine who is in posses- 
 sion. This case has been put: 
 
 " A street porter enters an inn, puts down a bundle 
 upon the table and goes out. One person puts his 
 hands uppn the bundle to examine it; another puts his 
 to carry it away, saying, it is mine. The innkeeper 
 runs to claim it in opposition to both. The porter re- 
 
 imiversally ; because property may be taken for public use, when the 
 owner, on being compensated, loses his title to it. 
 
 (a) 2 Com. 3S9. 
 
180 OF THINGS. 
 
 No. 454. Book 2, part 1, chap. 4, sec. 2. No. 454. 
 
 turns or does not return. Of these four men, which is 
 in possession of the bundle?" 
 
 To ascertain what is possession, we must have a 
 definite idea of it. It is proper to analyze it, and dis- 
 tinguish between physical and legal possession. The 
 former does not suppose any law, it existed before 
 there were laws ; it is the detention of the subject, 
 whether a thing or the services of man. The latter is 
 altogether the work of the law; it is the enjoyment of 
 a right over a flung. 
 
 In order to complete legal possession two things are 
 requisite ; first, that there be an occupancy, appre- 
 hension or taking ; and secondly, ^at the taking be 
 with an intent to possess, animus possidendi; hence 
 persons having no will, as idiots, cannot acquire a 
 legal possession, which is an assertion of a right, (a) 
 
 454. Possession, separated from property, has pre- 
 served several of its ancient prerogatives. 
 
 1. It still remains to be a means of acquiring pro- 
 perty, when it has continued long enough to bar a 
 right of action under the statutes of hmitations, or as 
 the civilians say, to operate a prescription. 
 
 2. The possessor has a right to be maintained in his 
 possession, when he is disturbed in it or it is seized 
 from him by violence. The owner himself, can re- 
 gain his possession only by lawful means. But he 
 may regain it by his own act if he can do so peace- 
 ably. 
 
 3. The principle that property is acquired by occu- 
 pation, is preserved by possession and lost with it, is 
 yet applicable to those things which have remained 
 in a state of negative community, such as wild ani- 
 mals, birds and fishes, and all such things as are 
 naturally found on the sea shore, as precious stones, 
 shells, coral, etc. The rule is dijGferent with regard to 
 
 (a) Btienne, h. t.; Poth. h. t. See Abb. on Shipp. 9 et seq., and Savig- 
 ny s Treatise on Possession ; or the jus possessionis of the Civil Law ; A 
 very learned work. See also Bouv. L. D., h. t. 
 
OF THINGS. 181 
 
 No. 455. Book 2, part 1, chap. 4, sec. 3, § 1, 2. No. 457. 
 
 domestic animals, as will be seen when we come to 
 treat of the qualified rights which men have in pro- 
 perty. 
 
 4. Possession still preserves, in the civil state, the 
 important prerogative of giving the possessor the right, 
 when the title of two contending claimants are other- 
 wise equal. 
 
 SECTION 3. DEFINITION OF PROPERTY AND ITS ANALYSIS. 
 
 § 1. — Definition of property. 
 
 455. Property is the lawful right which a man has 
 in lands or chattels, to dispose of them in the most 
 absolute manner, to the exclusion of all others. 
 
 § 2. — Analysis of property. 
 
 456. The right of property subsists independently 
 of the exercise which may be made of it. One is not 
 the less owner, although he may perform no act of 
 ownership, although it may be out of his power to do 
 so, and even when another performs such acts un- 
 known to him or against his will. The right consists 
 in a legal faculty of performing those acts, by him- 
 self, or by another in his name. Property is con- 
 sidered as a quality inherent in the thing. 
 
 457. A distinction has been made between property 
 and domain. By the first is understood that quality 
 which we conceive in the thing itself, considered as 
 belonging to such or such person exclusively of all 
 others. By domain is understood the right to dispose 
 at our pleasure of what belongs to us, which is con- 
 sidered the effect of property ; so that afecording to 
 this distinction, domain is attached to the person, and 
 property to the thing itself. But this distinction is 
 rather too subtle to be useful in practice ; it may in 
 theory, throw some light on the nature of the right of 
 property. 
 
 This right is what is called jus in re, or a right 
 which a man has in a thing, by which it belongs to 
 
182 OF THINGS. 
 
 No. 458. Book 2, part 1, chap. 4, sec. 3, § 2. No. 459. 
 
 him ; a complete and full right. (a) It is the bond of 
 property which exists between the owner and the 
 thing, independently of any other person; he may fol- 
 low it into whose possession soever the same may be, 
 whether the possessor has obtained it bona fide or other- 
 wise. This right of following the thing which is the 
 object of property wherever it may be found, called 
 jus in re, dififers from the jus ad rem, which is a right a 
 man has, not in the thing, but simply in relation to 
 the thing, against the person who has contracted 
 toward him the obligation of delivering it to him. (6) 
 It results from an obligation purely personal, existing 
 between two or more designated persons, by which 
 one is bound to give or to do something for the other. 
 
 The jus ad rem is the title or means of acquiring a 
 thing in which we have a property, jus in re. 
 
 The exercise of the right of property consists in 
 the performance of every thing in relation to it, not 
 forbidden by law ; for what the law does not forbid, 
 it allows. It would be dtfiScult, perhaps useless, to 
 enumerate all the acts which a man may do in rela- 
 tion to his property ; these may be reduced to three 
 classes which correspond to the three fundamental 
 points of property, namely; enjoyment, exclusion and 
 disposition. 
 
 458. — 1. The first class, or the right of enjoyment, 
 comprehends the acts which have for their object to 
 procure from the thing, which is the subject of pro- 
 perty, all that is useful or agreeable ; in a word, to 
 draw from it all the possible advantages, not forbidden 
 by law. 
 
 459. — 2. The second class, or the right of exclusion, 
 consists in the performance of all those acts which in- 
 terdict others or prevent them from the use of the 
 thing ; to claim the thing, and repress all attempts to 
 
 (a) Poth. Dr. de Domaine de Prop. n. 1 ; 1 BI. Com. 312. 
 (i) 1 Bl. Com. 312. This term is nearly equivalent to chose in action. 
 Bouv. L. D. h. t.; 2 Woodes. Lect. 235 ; Poth. Du Dr. de Prop. n. 1. 
 
OF THINGS. 183 
 
 No. 460. Book 2, parti, chap. 5. No. 461. 
 
 invalidate the enjoyment or the disposition of the 
 owner. 
 
 460. — 3. The third class includes all those acts 
 which are relative to the disposition of the thing. To 
 dispose of a thing, is to make of it what use we please: 
 the owner has a right to dispose of his property in the 
 most absolute manner. This right includes that of 
 changing the nature of the thing, to change its form, 
 its surface, and even its substance as much as possible ; 
 in fact he may consume it. When it is said the owner 
 has a right to abuse it, jus abutendi, it must be under- 
 stood as used in opposition to the right of simple usage, 
 jus utendi, which is the right of using without destroy- 
 ing the thing. But this right of abuse is not un- 
 limited, (a) 
 
 This right to dispose of a thing includes that aliena- 
 tion, in whole or in part, by conveying the title forever 
 or only for a limited time, purely and without condi- 
 tions, in favor of one or more persons, gratuitously or 
 for a consideration. To alienate is to transfer one's 
 right of property to another. 
 
 This same right includes further that of abandoning 
 the thing and the property, without transferring it to 
 another. 
 
 The right of disposing of a thing includes also that 
 of pledging the thing. Indeed, whenever a person 
 binds himself, he binds all his property, and that which 
 he may acquire, for the fulfilment of his obligation ; 
 hence the maxim, he who binds himself binds his 
 property. 
 
 CHAPTER v.— DIVISION OP PROPERTY INTO PERFECT AND 
 IMPERFECT. 
 
 461. Property may be divided into perfect and im- 
 
 (a) The owner of a horse or other animal has, it is true, power over the 
 life of such animal, but he cannot use it in such a cruel manner as wiU be 
 injurious to the community, either by his example or on account of the 
 cruelty. And for such acts the owner of such property may be punished 
 criminally. 6 City Hall Rec. 62 ; 3 City Hall Recorder, 191. So the 
 owner of a slave cannot put him to death. 
 
184 OF THINGS. 
 
 Book 2, part 2, tit. 1. No. 463. 
 
 perfect. It is perfect when the owner can exercise 
 all the rights of which it is susceptible. 
 
 It is imperfect when some of these rights have been 
 separated; for example, a thing pledged belongs to 
 the owner, subject to the pledge. 
 
 When the owner transfers his personal property, 
 unless accompanied by possession, he can transfer only 
 the rights he possesses. 
 
 PART 11.— OF PERSONAL PROPERTY. 
 
 462. The phrase movable property does not exactly 
 mean personal property. By movable property is 
 meant every thing which in its nature may be re- 
 moved, except what is appropriated to real estate by 
 destination, as the keys of a house, and certain fixtures 
 in mills and other buildings ; personal property in- 
 cludes not only all movables, but also something more ; 
 the whole of which is known by the name of chattels. 
 This term then includes all kinds of property, except 
 the freehold, or things which are parcel of it. (a) 
 
 In considering their nature, chattels may be divided 
 into real and personal. 
 
 TITLE I.— OF CHATTELS REAL. 
 
 463. Chattels real are such as either appertain not 
 to the person immediately, but to something by way 
 of dependency, as a box with the title deeds of lands ; 
 or such as are issuing out of some real estate, as a lease 
 of lands, a term of years, which pass like personalty 
 to the executor of the owner. (6) The duration of the 
 term of the lease is immaterial, provided it be fixed 
 and determinate, and there be a reversion or remain- 
 der iQ fee in some other person. (c) It is but per- 
 
 (a) 1 Ohit. Pr. 90, 91 ; Kendall v. Kendall, 4 Russ. R. 360. 
 
 (b) Co. Litt. 118 ; 2 Kent, Com. 342 ; 8 Vin. Ab. 296 ; Bac. Ab. Baron 
 and Feme, (C 2). 
 
 (c) 1 Bl. Com. 386. 
 
OF CHATTELS PERSONAL. 185 
 
 No. 464. Book 2, part 2, tit. 2, chap. 1, sec, 1. No. 467. 
 
 sonal property, although it may extend to a thousand 
 years, because the time being fixed, it falls below a 
 freehold, (a) 
 
 464. Heir looms, which are chattels considered as 
 annexed and necessary to the enjoyment of the inheri- 
 tance . Contrary to the nature of chattels, they descend 
 to the heir, along with the inheritance, and do not 
 pass to the executor of the last proprietor. These are 
 charter deeds and other evidences of the title to the 
 land, together with the box in which they are usually 
 kept ; the keys of the house, and fish in an artificial 
 pond, and pigeons in a pigeon-house, deer in a park, 
 are all heir looms. (&) These differ from fixtures, 
 which will be considered hereafter. 
 
 TITLE II.— OF CHATTELS PEKSONAL. 
 
 465. Chattels persond may be divided into those 
 which are in possession, and those which are in action. 
 
 CHAPTER I.— OP CHATTELS PERSONAL IN POSSESSION. 
 
 466. Having already considered the nature of pos- 
 session of personal property and its effects, (c) we will 
 now consider the dififerent kinds of such property in 
 two articles, the first of which will treat of tangible 
 personal property, and the second of personal property 
 not tangible. 
 
 SECTION 1. OF TANGIBLE PROPERTY. 
 
 467. Tangible personalty in possession includes not 
 only things actually separated and movable, whether 
 "animate or inanimate, but also some things which, 
 though annexed to, or proceeding out of real property, 
 are considered in law, for some purposes and under 
 some circumstances removable, and consequently 
 treated as personal property ; for example, a tenant's 
 
 (a) Co. Litt. 46 a ; Case of Gay, 5 Mass. 419 ; Brewster v. Hill, ] N. H. 
 Rep. 350; Bac. Ab. Legacies, (B), Bouv. ed. 
 (4)1 Inst. 3 a; Id. 185 b. 
 (c) Ante, B. 2, pt. 1, t. 1, c. 2. 
 
186 OF THINGS. 
 
 No. 468. Book 2, part 2, tit. 2, chap. 1, sec. 1, } 1. No. 469. 
 
 fixtures, removable during the term; growing trees 
 when sold, though not actually severed ; and emble- 
 ments, whether growing corn, roots, or cultivated grass, 
 and growing vegetables. 
 
 This tangible personal property in possession may 
 itself be divided into two sorts : an absolute and a quali- 
 fied property. 
 
 § 1. — Of absolute property in possession. 
 
 468. Property in possession absolute, is where a 
 man has, solely and exclusively, the right, and also 
 the occupation of any movable chattel, so that it can- 
 not be transferred from him, or cease to be his with- 
 out his act, consent, or default ; unless, indeed, when 
 such property is taken by authority of law for public 
 use. (a) In such case the owner is to be justly paid or 
 indemnified. This kind of property is either animate 
 or inanimate. 
 
 469. — 1. Animals are distinguished into such as are 
 domitce, of a tame or domestic nature ; and such as are 
 fercB naturce, of a "wild or savage disposition. In such 
 animals as are tame and domestic, as horses, kine, 
 sheep, poultry, and the like, a man may have an abso- 
 lute property as he may have in inanimate things, 
 because they stay continually in his occupation, and 
 will not stray from his house or person, unless by acci- 
 dent or fraudulent enticement, in either of which cases 
 the owner does not lose his property. (&) Where 
 slavery is established a man has an absolute property 
 in his slave, and if he runs away, the master may 
 retake him, or establish his right by action, (c) 
 
 There is a class of animals in which, although a 
 property of some kind may be had in them, yet, on 
 account of their inferiority, they are not the subject 
 
 (a) 2 Bl. Com. 389 ; Story on Baflm. ^ 93, g, h, i. 
 
 (b) 1 Bl. Com. 390 ; Dig. 41, 1, 6 ; 3 TouU. n. 373 : 1 Chit. Pr. 8, 7. 
 
 (c) Withers v. Smith, 4 Biblj, 170; Plumpton v. Cook, 2 A. K. Marsh. 
 450. 
 
OF CHATTELS PERSONAL. 187 
 
 No. 470. Book 2, part 2, tit. 2, chap, 1, sec. 1, } 1^ No. 472. 
 
 of larceny ; such as dogs, (a) cats, bears, foxes, mon- 
 keys, or ferrets. (6) 
 
 The law recognizes no property whatever in rooks.(c) 
 
 470. — 2. Inanimate tangible property, either actu- 
 ally movable, or capable of being removed or separated 
 without great injury to the realty, is generally known 
 by the appropriate and technical name of goods and 
 chattels. This term includes, for some purposes, 
 money, valuable securities, and all other personal pro- 
 perty, and even choses in action. (d) 
 
 471. — 3. Growing vegetables or emblements are 
 deemed personal property. By emblement is under- 
 stoood the crops growing upon the land ; but the word 
 crops, as here used, signifies the products of the earth, 
 which grow yearly and are raised by annual expense 
 and labor, or " great manurance and industry," such 
 as grain ; but not fruits which grow on trees, which 
 are not planted yearly, grass and the like, though they 
 are annual. (e) 
 
 472. — 4. Fixtures are sometimes considered as per- 
 sonal chattels, and, at other times, as part of the 
 realty. Fixtures, technically speaking, are personal 
 chattels annexed to land, and which may afterward 
 be severed and removed by the party who has annexed 
 them, or his personal representatives, with or without 
 the will of the owner of the freehold. 
 
 To make a thing a fixture, it must be annexed to 
 the freehold, either actually or by construction. The 
 annexation must be made by joining the chattel to 
 the freehold.(/) Once annexed, in general it becomes 
 a part of the realty. But to this rule there are various 
 
 (a) 4 Bl. Com. 236 ; Findlay «. Bear, 8 S. & R. 571 ; 12 H. 8, 3 ; 18 H. 
 8, 2 ; Com. Dig. Biens F. ; Bac. Ab. Trover, (D.) 
 
 (b) 1 Chit. Pr. 88. 
 
 tc) 2 Bar. & C. 934 ; 4D. & R. 518. 
 
 (d) 12 Co. 1 ; Bac. Ab. Legacies, (B.) Bonv. ed. 
 
 (e) Co Litt. 55 ; Com. Dig. Biens, G. ; 10 B. & C. 720 ; 1 Chit. Pr. 92, 
 93 ; 1 Greenl. Ev. ^ 271 ; Warwick v. Bruce, 2 M. & S. 205 ; Evans v. 
 Roberts, 5 B. & C. 829 ; Cutler v. Pope, 1 Shep. R. 337. 
 
 {/) Bull. N. P. 34 ; 3 East, 38 ; Poth. Des Choses, § 1. 
 
188 OF THINGS. 
 
 No. 473. Book 2, part 2. tit. 2, chap. 1, sec. 1, } 1. No. 473. 
 
 exceptions : first, when there is a manifest intention to 
 use the fixtures in some employment distinct from 
 that of the occupier of the real estate ; and, secondly, 
 when it has been annexed for the purpose of carrying 
 on trade. (tf) But this distinction between fixtures for 
 trade and those for agriculture, does not seem to have 
 been admitted to prevail generally in the United 
 States. (6) To entitle the tenant to remove them, he 
 must do so within his lease. (c) 
 
 473. The right to remove fixtures depends on the 
 situation of the parties who claim them. Persons 
 standing in certain situations can claim them, when 
 they would not be allowed to others. These classes 
 of persons will be separately considered. 
 
 1st. When the question, as to the right of removing 
 fixtures, arises between the executor and the heir, the 
 ancient rule that they belong to the real estate, is 
 strict; unless the ancestor has manifested an inten- 
 tion that they should be considered' as personal pro- 
 perty. (^) 
 
 2d. As between the vendor and vendee, the rule is 
 as strict as between the executor and the heir ; such 
 fixtures pass to the vendee of the land.(e) 
 
 3d. Between the mortgagor and mortgagee, the 
 rule seems to be the same as between the vendor and 
 vendee. (/) 
 
 4th. Between the devisee and executor, the former 
 will be considered as a purchaser, and entitled to the 
 fixtures, (g) * 
 
 5th. Between landlord and the tenant for years, the 
 ancient rule is relaxed, and the right of the tenant to 
 
 (a) 3 East, 88 ; Lemar v. Miles, 4 Watts, 330 ; Vanness v. Pacard, 2Pet. 
 137 ; Swift V. Thompson, 9 Conn. 63 ; Gale v. Ward, 14 Mass. 352. 
 
 (M 2 Pet. 137 ; Whiting v. Brastow, 4 Pick. 310 ; Holmes v. Tremper, 
 20 John. 29. 
 
 (c) White V. Amdt, 1 Whait 91. 
 
 (d) Bac. Ab. Executors, &o. (H.) 
 
 (e) Miller 1). Plum, 6 Cowen, 665; Holmes v. Tremper, 20 John. 29; 
 Plullipson V. Mallanphy, 1 Miss. 608. 
 
 (/) Amos & F. on Fixt. 188 ; 15 Mass. 159. 
 (g) See Merrington v. Backet, 2 Bam. & Cr. 80. 
 
OF CHATTELS PERSOi^AL. 189 
 
 No. 474. Book 2, part 2, tit. 2, chap. 1, sec. 1, 5 2. No. 476. 
 
 remove fixtures is the most extensive. (a) But this 
 right of removal will depend rather upon the question 
 whether the estate will be left in the same condition 
 in which he took it. (6) 
 
 6th. In cases between tenants for life and their 
 executors and the remainder-men or reversioners, the 
 right to sever fixtures seems to be the same as that of 
 tenant for years. (c) 
 
 7th. In a case between the landlord and' the tenant 
 at will, there seems no reason why the same privilege 
 of removing fixtures should not be allowed. (c?) 
 
 474. — 5. Stocks in corporations are in general con- 
 sidered as personal property. (e) 
 
 § 2. — Of qualified property. 
 
 475. By qualified property is understood that pro- 
 perty which is not perfect in the hands of the possessor, 
 but his right to it is qualified, or limited, or special. (/) 
 
 476. A man may have a qualified property in ani- 
 mals ferce natures, on two accounts ; first, because he 
 has used his industry, in reclaiming them, per indus- 
 triam; and secondly, because such animals are so weak 
 that they cannot go away, propter impotentiam. 
 
 When animals of a wild nature have been captured 
 by a man, and are confined within his power, he has a 
 qualified property in them : (g) while so confined they 
 are his own ; but as soon as they regain their natural 
 liberty, he loses his right to them.(^) But the rule is 
 different with wild animals which have been tamed ; 
 
 (a) Elwes V. Maw, 3 East, 38. 
 
 h) Whiting V. Brastow, 4 Pick. 311. 
 
 (c) 4 Pick. 311. 
 
 (d) 4 Pick. 310. 
 
 (e) 4 Dane's Ab. 670 ; 1 Chit. Pr. 96. 
 
 (/) Story on Bailm. § 93, g, h, i : 2 Bl. Com. 891 ; 2 Greenl. Ev. <} 637. 
 
 Ig) But they must be completely within his power, otherwise they may 
 be captured by another. Young v. Hichens, 1 Dav. & Meriv. 592 ; S. C. 
 6 Ad. & Ell. N. S. 606 ; Pierson v. Post, 3 Gaines, 175 ; Bac. Ab. Game ; 
 Buster v. Newkirk, 20 John. 75 ; Puff. lib. 4, c. 6 ; Poth. De Propriete, 
 prem. partie, c. 5, s. 1, n. 26. 
 
 (A) Dig. 41, 1, 3 et 5. 
 
190 OF THINGS. 
 
 No. 477. Books, parts, tit. 2, chap. 1, sec. 2. No. 478. 
 
 if they are in the habit of going and returning, the 
 owner retains his property as long as this habit con- 
 tinues : (a) but if they have gone away a sufficient 
 length of time to raise a presumption that they have 
 lost the habit of returning, the animum revertendi, the 
 owner loses his property in them, and they become 
 the property of the first occupant. (6) Bees, for ex- 
 ample, are fera natura ; but when hived and reclaimed, 
 a man may have a quahfied property in them when 
 he hives them,(c) for till that is done he has no more 
 property in bees upon his trees, than he has in the 
 birds which happen to alight there. {d) 
 
 A qualified property may also be had' in animals 
 fercR naturcB on account of their weakness, ratione impo- 
 tentia, as the young of birds before they can fly, and 
 the whelps of other animals before they have the 
 ability to go away.(e) 
 
 477. But property may also be of a qualified or 
 special nature, on account of the peculiar circum- 
 stances of the owner, when the thing is capable of 
 absolute ownership. A variety of examples of this 
 might be given : a bailee has a qualified property in 
 the thing bailed, and so has the bailor ; the pledgor 
 and the pledgee have also such property in the things 
 which are the object of the bailment. 
 
 SECTION 2. OF PROPERTY NOT TANGIBLE. 
 
 478. In considering personal chattels in possession, 
 we have examined those which were tangible, in which 
 could be had an absolute or qualified property ; it will 
 now be proper to take a view of those chattels in pos- 
 session which are not tangible. These though in 
 possession as respects the right, and consequently not 
 
 (a) Amory v. Hyn, 10 John. 102. 
 
 (b) Dig. 41, 1, 6. 
 
 (cj Puff. 1. 4, c. 6, ^ 5 ; Inst. 2, 1, 14 ; 3 TouU. n. 374 ; 1 Bl. Com. 392. 
 
 (d) Wallis V. Mease, 3 Binn. 546; Sm. & M. 333; Inst. 2, 1, 14; Dig. 
 41, 1, 5, 2 ; Sed vide Gofi v. Kitts, 15 Wend. 550 ; 1 Oowen, 243. 
 
 (e) See 3 Inst. 109 ; 1 Kuss. on Cr. 153 ; 2 Bl. Com. 894. 
 
OP CHATTELS PERSONAL. 191 . 
 
 No. 479. Book 2, part 2, tit. 2, chap. 2. No. 481. 
 
 strictly choses in action, yet difier from goods, because 
 they are neither tangible nor visible, though the thing 
 produced from the right be perfectly so. In this class 
 may be mentioned copy rights and patent rights, either 
 in books, music, busts, sculpture, engravings, prints, 
 machines, etc. In these cases the subject matter of 
 the right is not the book, the music, etc., produced, 
 but the exclusive privilege of continually, for a certain 
 time, printing or making or vending the article. 
 
 CHAPTER n.— OF CHOSES IN ACTION. 
 
 479. A chose in action is the right to receive or re- 
 cover a debt, or money, or damages, for breach of con- 
 tract, or for a tort connected with a contract, which 
 cannot be enforced without action, and therefore termed 
 a chose or thing in action. («) 
 
 480. A distiaction must be made between the secu- 
 rity or the evidence of the debt and the thing due : a 
 deed, a bill of exchange, a promissory note, may be 
 all in possession of the owner, but the money or 
 damages due on them are no less choses in action. 
 
 481. There are some differences between personal 
 tangible property in possession, and choses in action; the 
 principal of which are, first, when money or goods are 
 in possession, or the defendant is entitled to immediate 
 possession, they may be taken in execution ; but, in 
 general, a chose in action, at common law, cannot be 
 so taken. In some of the states of the Union the mo- 
 ney due on them may be seized by a judgment creditor 
 by a peculiar process authorized by a special statute. (6) 
 Secondly: The transfer of a chose in action differs from 
 that of a personal chattel in possession, both in form 
 and effect ; for though, in general, the beneficial in- 
 terest of a chose in action may be transferred by parol, 
 and without writing, yet the legal interest does not 
 pass so as to entitle the assignee to sue in his own 
 
 (a) Com. Dig. Binns ; 1 Ch. Pr. 99, 140. 
 
 (i) In Pennsylvania, the plaintiff may issue an attachment execution, 
 and seize such property as under a writ of foreign attachment. 
 
192 OF THINGS. 
 
 No. 482. Book 2, part 2, tit. 2, chap. 3, 4. No. 483, 
 
 name, he must use that of the assignor to enforce pay- 
 ment. But there is an exception to this rule ; bills of 
 exchange, and promissory notes, are by the law mer- 
 chant transferable, and the legal as well as the equit- 
 able right passes to the transferee. In some states, by 
 statutory provisions, bonds, mortgages, and other 
 documents may be assigned, and the assignee receives 
 the whole title, both legal and equitable. In order to 
 perfect the transfer, the assignee of a common chose 
 in action must give notice to the debtor, and a neglect 
 to do so, will render a payment to the assignor with- 
 out notice equally available as if the thing had not 
 been assigned ; this is unnecessary when the possession 
 of the thing accompanies the assignment of it . Thirdly: 
 A thing tangible and in possession may be the subject 
 of a donation mortis causa, when it is delivered; so 
 also bonds, bills, notes may pass by such delivery when 
 so given. But a chose in action, not evidenced by any 
 written security, would not pass as a gift mortis causa. 
 Fourthly: A chose in possession at common law, vests 
 in the husband upon marriage ; a chose in action does 
 not vest in him until he obtains possession. 
 
 CHAPTER m.— OP THE TIME OF ENJOYMENT OF PERSONAL 
 CHATTELS. 
 
 482. Though the law was formerly otherwise, now 
 property, whether personalty or realty, may be settled 
 in any way. A bequest for life of the thing itself, or 
 of its use only, with a limitation over upon the death 
 of the legatee, will be supported. (a) 
 
 CHAPTER IV.— OF THE NUMBER OP OWNERS IN THE SAME 
 PERSONAL CHATTELS. 
 
 483. A chattel may belong in severalty to one per- 
 son alone ; to two or more persons in joint tenancy, or 
 in common, as well as real estate. By severalty is un- 
 derstood the state of property which is held by only 
 
 (a) Bac. Ab. Legacies, (B 2), Bouv. ed.; Patterson v. Ellis, 11 Wend. 
 260 ; Terry v. Terrel, 1 Dev. & Bat. Eq. 441. 
 
OF CHATTELS PERSONAL. 193 
 
 No. 484. Book 2, part 2, tit. 3. No. 488. 
 
 one person in his own right, without any other person 
 being joined or connected with him in point of interest, 
 during the continuance of his estate. 
 
 484. Joint tenancy is where two or more persons 
 hold land, tenements, or chattels, by the same title, 
 obtained at the same time, for the same interest, and 
 having the same possession. (a) 
 
 485. A tenancy in common is one of property held by 
 two or more persons by unity of possession only. 
 
 486. It is a rule, that when chattels are held in 
 ordinary and common partnerships in trade, upon the 
 death of the joint tenants, the right of the deceased 
 vests in his personal representatives, it being a rule 
 that inter mercatores jus accrescendi locum non habet,(b) 
 but the right to recover any debt due to the partner- 
 ship, or for any past injury, vests in the survivor, for 
 the benefit of himself and the representatives of the 
 deceased. If, however, the chattel be held by persons 
 who are not partners, as joint tenants, at common law, 
 on the death of one the right of the deceased belongs 
 to the other. But this has been changed by statute 
 in a number of the states of the Union. 
 
 TITLE in.— OF THE DIFEEKENT MODES OF ACQUIRING 
 AN ORIGINAL TITLE TO PERSONAL CHATTELS. 
 
 487. Under this title will be considered the original 
 modes of acquiring personal chattels. The way in 
 which such property is acquired by derivative title will 
 form the subject of the next title. 
 
 488. There is an important distinction between the 
 effect of original and that of derived acquisition. When 
 the acquisition is original, the right thus acquired to 
 the thing becomes property, which must be unlimited 
 and unqualified, since no one but the occupant has any 
 right to the thing, he must have the whole right of 
 
 (a) Gilbert v. Richards, 7 Verm. 203 ; Shaw v. Hearsey, 5 Mass. 521 ; 
 Dott. V. Willson, 1 Bay, 457. 
 
 (}) Oo. Litt. 3, 282 ; 1 Mer. R. 564 ; 1 Bl. Com. 359. 
 
 Vol. I. 13 
 
194 OF THINGS. 
 
 No. 489. Book 2, part 2, tit. 3, chap. 1, sec. 1, J 1. No. 492. 
 
 disposing of it. But with regard to derived acquisition 
 it may be otherwise, for the person from whom the 
 thing is acquired may not have an unlimited right to 
 it, or he may transfer or convey it with certain reser- 
 vations of right. 
 
 CHAPTER i.— OF TITLE TO PERSONAL CHATTELS B¥ ORIGINAL 
 ACQUISITION. 
 
 489. Title by original acquisition, is either title by 
 occupancy or title by intellectual labor. These will 
 be considered in two sections. 
 
 SECTION 1. OF TITLE BY OCCUPANCY. 
 
 490. Title by occupancy is either, 1, simple, or mere 
 occupancy; or, 2, consequent occupancy. 
 
 § 1. — Of simple or mere occupancy. 
 
 491. In the origin of society, we have seen that 
 all things belonged to all men by a kind of negative 
 community, so that each could be taken by the first 
 occupant. In the course of time most things were 
 appropriated and became private property, and the 
 right to them became exclusive; but others remain 
 stUl in the negative community, over which no one 
 has a right, and, until appropriated, they belong to no 
 one. These are subject to the same right of appropri- 
 ation, and may be seized by the first occupant: quod 
 nullius est id. ratione naturali occupanti conceditur .{a) 
 No one has a right to that which is res nullius, conse- 
 quently, whoever possesses rem nullius, possesses that 
 which no one has a right to take from him. It is 
 therefore his property. In the advanced state of 
 civilization with which we are blessed, this kind of 
 prperty is not common, but still it may be found. 
 
 492. Wild animals, whether they be quadrupeds, 
 birds, or fishes produced in the sea, the heavens or the 
 earth, become the property, by natural law, of who- 
 ever takes possession of them. It is the same when 
 
 (a) Inst. 2, 1, 12. 
 
OF CHATTELS PERSONAL. 195 
 
 No. 493. Book 2, part 2, tit. 3, chap. 1, sec. 1, 5 1. No. 495. 
 
 the animals or birds are caught on the premises of 
 him who seizes them, or on those of another, but this 
 does not authorize any one to commit a trespass for 
 the purpose of hunting. 
 
 When taken, such an animal belongs to its captor ; 
 while the animal is living, he has a qualified property, 
 which continues while it remains in his possession ; 
 but if the animal should escape and regain its natural 
 liberty, he loses his right. The animal has regained 
 its natural liberty when it gets out of sight, ox if in 
 sight, is under such circumstances that pursuit would 
 be difl5cult.(ff) 
 
 493. Gems, shells, precious stones, found on the sea 
 shore, are subject to become the property of the first 
 fortunate finder, because they do not belong to any 
 one. (6) 
 
 494. Things that have been abandoned by the 
 owner, belong to the first occupant ; but if the owner, 
 repenting of having thrown away or abandoned the 
 thing, retake it before any one else, he regains his 
 former title. To entitle the finder to such chattels, 
 the former owner must have wholly abandoned his 
 title; if, as in the case of a wreck, he has parted with 
 the possession on the ground of necessity, or with an 
 evident intention of resuming it, the property has 
 never been abandoned. 
 
 495. The acquisition of things tangible by occu- 
 pancy, must be made corpore et animo, that is, by an 
 outward act signifying an intention to possess. The 
 necessity of an outward act to commence holding a 
 thing in dominion, is founded on the prinoiple that a 
 will or intention cannot have legal effect, without an 
 outward act declaring that intention ; and, on the other 
 
 [a] Grot. lib. 2, c. 3, ^ 5 ; Dig. 41, 1, 3, 2. The Romans considered 
 things taken in war, in the same light ;' they belonged to the captor, until 
 they were retaken or escaped. Dig. 41, 1, 5, 7, 7 ; Dig. 49, 15, 19, princ; 
 Inst. 41, 2, 1, 1. 
 
 (b) Sea weed, when cast upon the shore, belongs to the owner of the 
 adjoining land. 2 John. 313, 323. Vide 5 Verm. 223. 
 
196 OF THINGS. 
 
 No. 496. Book 2, part 2, tit. 3, chap. 1, sec. 1, § 1. No. 498. 
 
 hand, no man can be said to have the dominion over 
 a thing which he has no intention of possessing as his. 
 Therefore a man cannot deprive others of their right 
 to take possession of vacant property by merely 
 considering it as his, without actually appropriating 
 it to himself; and if he possesses it, without any will 
 of appropriating it to himself, as in the case of an 
 idiot, it cannot be considered as having ceased to be 
 res nullius. The outward act or possession need not, 
 however, be manual; for any species of possession, or 
 as the ancients expressed it, custodia, is in general a 
 sufficient appropriation, (a) 
 
 496. The right of acquiring personal chattels by 
 finding, is limited to those found upon the surface of 
 the earth. It does not extend to goods found derelict 
 at sea, though abandoned without hope of recovery, (5) 
 nor to goods or money found hidden in the earth, 
 known by the name of treasure trove. (c) In England 
 such goods belong to the crown; in this country the 
 title to them has perhaps been seldom questioned in 
 the hands of the finder, except by the real owner. 
 
 497. No title by occupancy can in this country be 
 gained in waifs, or stolen goods thrown away or 
 scattered by a thief in his flight, in order to efiisct his 
 escape. In England they belong to the king; here 
 this prerogative has never been adopted by the gov- 
 ernment against the true owner, and never, perhaps, 
 put in practice against the finder, though against him 
 there would be a better reason for adopting it.(d) 
 
 498. Nor can any title be gained by occupancy of 
 estrays, or cattle whose owner is unknown ; or of 
 wrecks, or such goods as after a shipwreck are cast 
 
 (a) Grot. 2, 8, 11, note 1. 
 
 \b) 2 Kent, Com. 357, 4th ed. ; The Aquila, 1 Rob. Adm. R. 32 ; The 
 King V. Property Derelict, 1 Hagg. Adm. R. 383 ; Peabody v. Proceeds of 
 20 bags of cotton, Amer. Jur. No. 3, 119 ; The Emulous, 1 Sumn. 207 • 
 1 Ware's R. 41. , u .^v, , 
 
 (c) Lepons du Dr. Rom. ^ 350—352. 
 
 (d) 2 Kent, Com. 257, 4th ed. 
 
OF CHATTELS PERSONAL. 197 
 
 No. 499. Book 2, part 2, tit. 3, chap. 1, see. 1, } 2, art. 1. No. 501. 
 
 upon land by the sea, and left there, within some 
 county, so as not to belong to the jurisdiction of the 
 admiralty, but to the common law.(ff) The property 
 in these is generally regulated by local statutes. 
 
 § 2. — Consequent occupancy, or the right of accession. 
 
 499. The ownership of a thing, whether real or 
 personal, movable or immovable, carries with it the 
 right to all the thing produces, and to all that becomes 
 united to it, either naturally or artificially; this is 
 called the right of accession, a right grounded on that 
 of occupancy. 
 
 The doctrine of accession has been adopted from 
 the civil or Roman law, and, contrary to their custom, 
 English lawyers have acknowledged the source, in 
 this instance, from which so many wise rules flowed. 
 It was introduced by Bracton, and the good sense of 
 the doctrine recommended it to the courts, who incor- 
 porated it into our system. (6) Accession is natural 
 or artificial. 
 
 ^ Art. 1. — Of natural accession. 
 
 500. Natural accession consists in the right to 
 emblements, and the right to the young of animals. 
 
 < 1. Of emblements. 
 
 501. By emblements is understood the crops growing 
 in the ground. By crops is here meant the products 
 of the earth which grow yearly and are raised by 
 annual expense and labor, such as grain; but not 
 fruits which grow on trees, not to be yearly planted, 
 grass and the like, though they are annual. (c) They 
 belong to the owner of the land, or to the tenant who 
 occupies it, who has sown and planted it. For some 
 purposes emblements are to be considered as personal 
 property, for on the death of the owner, they go to 
 
 (a) 2 Inst. 167 ; Bract. 1. 3, c. 3 ; Mirror, c. 1, s. 13, and c. 3. 
 
 {h) 2 Bl. Com. 404. 
 
 (c) Co. Lit. 55 b ; Com. Dig. Biens, G. 
 
198 OF THINGS. 
 
 No. 502. Book 2, part 2, tit. 3, chap. 1, sec. 1, (, 2, art. 2. No. 504. 
 
 the executor, and not to the heir; but in some respects 
 they are treated as real estate, and, for that reason, at 
 common law they are not the subject of larceny. (a) 
 
 2. Of the young of animals. 
 
 502. The owner of a female animal is entitled to 
 all her brood, according to the maxim partus sequitur 
 ventrem.{h) Although this rule is reversed with regard 
 to free persons, whose offspring follow the condition 
 of the father, yet, where slavery exists, the young of 
 female slaves belong to the master of the mother. (c) 
 
 Art. 2. — Of artificial accession. 
 
 503. It is difficult, if not impossible, to reduce to 
 general and precise rulps the right of accession, which 
 has for its objects two personal things belonging to 
 two different owners ; this right must always be 
 subject to the rules of natural equity. 
 
 These rules maybe arranged into three classes, which 
 correspond to the three artificial kinds of accessions : 
 1, adjunction, or the union by adjunction of two things 
 which belong to different owners ; 2, specification, or 
 the formation of a new species, with personal chattels 
 belonging to another; and, 3, commixtion, or the 
 mixture of several things belonging to several owners. 
 
 1. Of adjunction. 
 
 504. By adjunction is meant the union which takes 
 place when the thing belonging to one person is 
 attached or united to that which belongs to another, 
 in such a manner as to form a whole, and yet separa- 
 ble, so that one can subsist without the other; for 
 example, a diamond enchased in a ring ; silk thread 
 used to make another man's coat. In these cases, 
 when the adjunction is made by mistake, the whole 
 belongs to the owner of the principal article, upon 
 
 condition, however, that he shall pay to the other the 
 
 __i 
 
 (a) 3 Inst. 109. 
 
 (b) Dig. 6, 1, 5, 2 ; Inst, 2, 1, 19. 
 
 (c) See Fanny v. Bryant, 4 J. J. Marsh, 368 ; State v. Anderson, Coxe, 36. 
 
OF CHATTELS PERSONAL. 199 
 
 No. 505. Book 2, part 2, tit. 3, chap. 1, sec. 1, } 2, art. 2. No. 505. 
 
 value of the goods which have been so employed. 
 But the law will not permit one man to gain title in 
 another's chattels, upon the principle of accession, if 
 he took the property wilfully as a trespasser. 
 
 2. Of specification, or the formation of new species out of the thing belong- 
 ing to another. 
 
 505. Specification is the making a new species out 
 of materials of a different nature ; as, cider out of 
 apples ; flour out of wheat. When a man takes law- 
 fully the property of another, and changes its nature 
 by making a new species, a question arises to whom 
 does the whole belong ? In some cases the substance 
 carries it over the form, in others the form is preferred 
 to the substance. 
 
 It seems to be settled that whatever alteration of 
 form any property may have undergone, if taken 
 tortiously, the owner of the original chattel is entitled 
 to it in its new shape. (a) 
 
 But if the thing changed be taken lawfully, as, 
 when a man believing wood to belong to him, made a 
 table out of it ; or money belonging to another which 
 he believed to be his own, and worked it up into a vase, 
 according to the Roman law, he would be the owner 
 of the table or of the vase, but liable to the true 
 owners of the wood or the money for their value. (&) 
 Upon the principle that the writing and the painting 
 in the following cases is the principal, a picture painted 
 on canvas would belong to the painter, he being 
 liable to the owner of the canvas for its value ; and 
 the author of a poem or history, written by him by 
 mistake on the paper of another, would belong to the 
 author, he paying for the paper, (c) 
 
 If the material taken and converted into a new 
 species cannot be changed back to what it was, as if 
 
 (a) Fitz. Ab. Bar. 144 ; Bro. Propertie, 23 ; Oiv. Code of Lo. art. 494, 
 495 ; Church v. Lee, 5 John. 348. 
 (h) Inst. 2, 1, 25, 34 ; 2 Black. Com. 404. 
 (c) 2 Kent. Com. 362, 363 ; 3 Toull. n. 116. 
 
200 OF THINGS. 
 
 No. 508. Book 2, part 2, tit. 3, chap. 1, see. 1, } 2, art. 2. No. 507. 
 
 wheat be made into flour, or apples into cider, the 
 new articles belong to the new proprietors, and they 
 become subject to the owners of the materials for their 
 value, (a) 
 
 3. Confusion, or mixture of several things belonging to different owners. 
 
 506. Confusion of goods takes place when the goods 
 of two or more persons become mixed together so 
 that they cannot be separated ; as, if the cider of two 
 different persons be poured into the same barrel; when 
 the things put together are capable of separation, the 
 mixture is called commixtion ; as, if the flock of sheep 
 belonging to A, be mixed with that of B. 
 
 In cases of commixtion the property in the things 
 is not changed; it may be separated, and the owner of 
 each is entitled to that which belongs to him. 
 
 507. In cases of confusion the rules vary according 
 to the circumstances. 
 
 1st. When the confusion takes place by the mutual 
 consent of the owners, they have an interest in the 
 mixture in proportion to their respective shares. (6) 
 
 2dly. When the confusion arises from inevitable 
 accident, or by the act of a stranger, the rule of the 
 civil law, which deemed the property to be held in 
 common, might be adopted; and it would make no 
 difference whether the mixture produced a thing of 
 the same sort or not; as, if the wine of one were 
 poured into a cask containing the cider of the other, 
 or the gold of one and the silver of another be melted 
 together and made into a vase.(c) 
 
 (a) Inst. 2, 1, 25, 34 ; Silsbury v. McCoon, 6 Hill, 425. 
 
 (i) 2 Bl. Com. 405 ; 6 HiU, N. Y. Rep. 405. 
 
 (c) The rule in these cases is thus laid down in Justinian's Institutes, lib. 
 2, t. 1, ^ 27 : Si duorum materise ex voluntate dominorum conftisse sint, 
 totum id corpus, quod ex confusione fit, utriusque commune est : .veluti si 
 qui vina sua confuderint, aut massas argenti vel auri conflayerint. Sed et 
 si diyersse materise sint, et ob id propria species facta sit ; forte ex vino et 
 melle melsum, aut ex auro et argento electrum, idem juris est : nam et hoc 
 casu commumem esse speciem non dubitatur. Quod si fortuitu, et non 
 voluntate dominorum, confusae fuerint, vel ejusdem generis materia, vel 
 diversse, idem juris esse placuit. See Dane's Ab. c. 76, art. 5, ^ 19. 
 
OF CHATTELS PERSONAL. 201 
 
 No. 508. Book a, part 2, tit. 3, chap. 1, sec. 2, § 1, art. 1. No. 511. 
 
 3dly. When a man mixes his own goods with 
 those of another wilfully, and thereby make a confu- 
 sion, the whole of the mass belongs to him whose 
 rights have been invaded, and this, rule has been 
 adopted to punish the wrong-doer for his unlawful 
 act.(«) 
 
 SECTION 2. — OF ORIGINAL ACQUISITION BY INTELLECTUAL 
 LABOR. 
 
 508. The rights of an author in his writings called 
 literary property, and of an inventor in his invention, 
 will form the subject of this section. 
 
 § 1. — Of literary property. 
 
 509. An author has an undoubted right over his 
 unpublished compositions. No man has a right to 
 pubhsh the thoughts of another to the world, or to 
 propagate their publication beyond the points to which 
 he has given consent. But once committed to the 
 public with his consent by printing, he. is committed 
 forever. The questions of the author's right may be 
 considered, first, with regard to the property in his 
 unpublished works ; and, secondly, in those which 
 have been published with his consent. 
 
 .^li. 1. — Of property in unpublished works. 
 
 510. A variety of cases may arise as to the right in 
 the author to restrain the publication of his works; 
 these may be classed into those which relate, 1, to pri- 
 vate letters ; 2, to publication by acting or reciting ; 
 3, to the gift or sale of the manuscript ; and 4, to 
 books printed, or in the printer's hands. 
 
 1. Of private letters, 
 
 511. Private letters written by pne individual to 
 another, remain the property of the writer ; for some 
 
 (a) 2 Bl. Com. 405 ; and see 2 Kent, Com. 365, 4th ed. ; Poph. 38, fl. 
 2 ; Ward v. Byre, 2 Bulst. 323 ; 15 Ves. 442 ; Case of the Odin, 1 Eob. 
 Eep. 208 ; Brackenridge v. Holland, 2 Blackf. 377. 
 
202 OF THINGS. 
 
 No. 512. Book 2, part 2, tit. 3, chip. 1, sec. 2, § 1, art. 1. No. 514. 
 
 purposes, there is a joint property in the right of the 
 writer and the receiver, so that the latter will be re- 
 strained from publishing them without the consent of 
 the writer or representatives. (a) Their publication 
 will not be restrained, however, when required, 1, for 
 the purposes of public justice ; (&) nor, 2, where the 
 author has authorized the publication. 
 
 2. Of publication ly acting or reciting. 
 
 512. When a composition has been made public, 
 not by printing or selling, but by recitation or acting, 
 the person who for money thus gets access to the work 
 has no right to pubhsh it.(c) 
 
 3. Of the gijt or sale of manuscript. 
 
 513. When compositions intended for publication 
 or fit for it, by accident or donation, or any other title 
 short of an authority to publish, come into the hands 
 of another person, the possessor has no right to pub- 
 lish them, for the law protects the author in his right of 
 reputation, as well as in his proprietary rights. (<^) 
 
 4. Of printed books, or books in a printer^s hands. 
 
 514. A book in a printer's hands although printed, 
 if not published, is still in the power of the author ; 
 but the printer may have a lien over the book, though 
 he cannot publish it. 
 
 By act of congress it is provided that any person or 
 persons who shall print or publish any manuscript 
 whatever, without the consent of the author or legal 
 proprietor first obtained, (if such author or proprietor 
 be a citizen of the United States, or resident therein,) 
 shall be liable to suffer and pay to the author or pro- 
 
 (a) Pope V. Curl, 2 Atk. 542 ; Thompsons. Stanhope, Amb. 737 ; Perce- 
 val V. Phipps, 2 v. & B. 13 ; Gee v. Pritchard, 2 Swanst. 402 ; Granard v. 
 Dunkin, 1 Ball & B. 207 ; Dennis v. Leolerk, 1 Mart. Lo. Eep. 297. 
 
 (i) 2 Swanst. 427. 
 
 (c) Macklin v. Richardson, Amb. 694 ; Coleman v. Wathen, 5 T. R. 245. 
 
 (d) Duke of Qneensberry v. Shebbeare, 4 Burr. 2330 ; Southey v. Sher- 
 wood, 2 Mer. 435. 
 
OF CHATTELS PERSONAL. 203 
 
 No. 515. Books, parts, tit. 3, chap. 1, sec. 2, 5 1, art. 2. No. 517. 
 
 prietor all damages occasioned by such injury, to be 
 recovered by special action on the case, founded on 
 this act, in any court having cognizance thereof; and 
 the several courts of the United States empowered to 
 grant injunctions to prevent the violation of the rights 
 of authors and inventors, ure hereby empowered to 
 grant injunctions, in like manner, according to the 
 principles of equity, to restrain such publication of any 
 manuscript as aforesaid. 
 
 Art. 2. — Of the author's property in published works, and of copy 
 
 right. 
 
 515. Before the right of an author was secured to 
 him exclusively by statute, it was questionable when 
 once his book was made public, whether he could pre- 
 vent the publication of it by others. (a) Several 
 statutes were passed in England for this purpose. In 
 the United States the right is secured to authors by 
 certain acts of congress. It extends to the author of 
 a book, map, chart, or musical composition, print, cut, 
 or engraving, for a hmited time. The right thus 
 secured is called a copy right. 
 
 516. In considering the subject of copy right we 
 will take a view, 1, of the legislation of the United 
 States ; 2, of the persons entitled to a copy right ; 3, 
 for what it is granted ; 4, nature of the right ; 5, dura- 
 tion of the right ; 6, proceedings to obtain the right ; 
 7, requisites after the grant. 
 
 1. Of the legislation of the United States. 
 
 517. The constitution of the United States (b) autho- 
 rizes congress to secure to authors and inventors 
 their respective writings and discoveries. In pursu- 
 ance of this power several acts were passed which 
 were repealed by the act of February 3, 1831,(c) 
 saving the rights of parties, and by this act the sub- 
 ject is now regulated. 
 
 (a) Millan v. Taylor, 4 Burr 2303, 2417. (b) Art. 1, s. 8. 
 
 (c) 4 Sharsw. cont. of Story's Laws of U. S. 2221. 
 
204 OF THINGS. 
 
 No. 518. Book 2, part 2, tit. 3, chap. 1, Bee. 2, } 1, art. 3. No. 531. 
 
 2. Of the fersons entitled to a copy right. 
 
 518. The person must be the author and a citizen 
 of the United States or resident therein, and the legal 
 representatives of such person. (a) 
 
 3. For what a copy right is granted. 
 
 519. The copy right is granted -for any book or 
 books, map, chart, or musical composition which was 
 made or composed, but not printed at the time of the 
 passage of the act, or which may have been made or 
 composed afterward, or any print or engraving which 
 the author has invented, designed, etched, engraved, 
 or worked, or caused to be engraved, etched, or worked 
 from his own design. (&) 
 
 4. Of the nature of the copy right. 
 
 520. The persons to whom a copy right has been 
 lawfully granted, have the sole right and liberty of 
 printing, reprinting, publishing, and vending the thing 
 for which the exclusive privilege has been given. (c) 
 But this must be understood with this qualification. 
 The copy right is granted upon an implied condition 
 that the work is not of an injurious nature ; for if it 
 be clearly inconsistent with the principles of public 
 policy, or undoubtedly irreligious, libellous, or of an 
 immoral and obscene description, the right will not. 
 be protected in equity, and the party complaining 
 will be left to his remedy at law. Primd facie, how- 
 ever, the copy right confers title, and the onus is on 
 the other side to show clearly, that notwithstanding 
 the copy right there is an intrinsic defect in the 
 title.(d) 
 
 5. Of the time of duration of the copy right. 
 
 521. The right extends for the term of twenty- 
 eight years from the time of recording the title of the 
 book, etc., in the office of the clerk of the court, as 
 
 (a) Sec. 1, and sec. 8. (c) Sec. 1. 
 
 (J) Sec. 1. {d) See Lawrence v. Smith, Jac. B. 472. 
 
OF CHATTELS PERSONAL. 205 
 
 No. 522. Book 2, part 2, tit. 3, chap. 1, sec. 2, } 1, art. 2. No. 524. 
 
 directed by law. (a) But this right may be extended 
 under certain regulations, for the further term of four- 
 teen years. (6) 
 
 6. Proceeding to obtain a copy right. 
 
 522. The proceedings to obtain a copy right are 
 very simple. The author, or his representative, is 
 only required to deposit a printed copy of the title of 
 the book, etc., in the clerk's office of the district court 
 of the district where the author or proprietor may 
 reside. The clerk makes a record of it for the fee of 
 fifty cents, and delivers to the party a copy under seal 
 for the like fee. 
 
 7. Of requisites after the grant. 
 
 523. The person to whom the copy right is granted, 
 is required to cause to be inserted in the several 
 copies of each and every edition published, during the 
 term secured, on the title page or on the page imme- 
 diately following, if it be a book, or if a map, chart, 
 musical composition, print, cut, or engraving, by 
 causing to be impressed 'on the face thereof, or if a 
 volume of maps, charts, music, or engravings, upon 
 the title or frontispiece thereof, the following words, 
 viz : " Entered according to act of Congress, in the 
 year , by A B, in the Clerk's Ofifice of the Dis- 
 trict Court of ," (as the case may be.) 
 
 524. The author or proprietor of any such book, 
 etc., shall, within three months from the publication 
 of said book, etc., deliver or cause to be delivered a 
 copy of the same to the clerk of the said district. 
 
 The act to establish the Smithsonian Institution for 
 the increase and diffusion of knowledge among men,(c) 
 enacts, section 10, that the author or proprietor of 
 any book, map, chart, musical composition, print, cut 
 or engraving, for which a copy right shall be secured 
 
 {a) Sec. 1. 
 
 (b\ Sections 2, 3, and 16. 
 
 (c) Act of 10th of August, 1846, Pamph. Laws, p. 102. 
 
206 OF THINGS. 
 
 No. 525. Book 2, part 2, tit. 3, chap. 1, sec. 2, 5 2, art. 1. No. 526. 
 
 under the existing acts of congress, or those which 
 shall hereafter be enacted respecting copy rights, shall, 
 within three months from the publication of said book, 
 etc., deliver or cause to be delivered one copy of the 
 same to the librarian of the Smithsonian Institution, 
 and one copy to the librarian of Congress Library, for 
 the use of the said libraries. • 
 
 § 2. — Of patent rights for inventions. 
 
 525. A man's invention is as much his property as 
 any thing he could acquire in any way whatever, and 
 he may therefore sell it, and in equity he is entitled 
 to all the benefits arising from it. But unless it has 
 been secured to him by law, others may use it and 
 receive all the benefit of his genius and his labor. To 
 prevent this, most governments have given to inven- 
 tors the exclusive right of making, and vending to 
 others to be used, their inventions. In the United 
 States this right is secured by certain acts of congress. 
 In the examination of this subject we will consider, 
 1, the legislation of the United States; 2, who may 
 be a patentee ; 3, for what invention a patent is 
 granted ; 4, the proceedings to obtain a patent ; 5, 
 the patent ; 6, the duty or tax on patents ; 7, the re- 
 quisites after the patent ; 8 duration of the right. 
 
 Art. 1. — Of the legislation of the United States on the subject of 
 
 patents. 
 
 526. The power to regulate the subject of inven- 
 tions is vested in congress,(a) and it rests in the sound 
 discretion of the legislature to say when, and for what 
 length of time, and under what circumstances the 
 patents for an invention shall be granted. Congress 
 may, therefore, grant a patent which shall operate 
 retrospectively by securing to the inventor, for the 
 future, the use of his invention, though it was in pub- 
 
 (a) Const, art. 1, s. 8, n. 8. 
 
OF CHATTELS PERSONAL. 207 
 
 No. 527. Book 2, part 2, tit. 3, chap. 1, sec 2, § 2, art. 2. No. 529. 
 
 lie use and enjoyed by the community at the time the 
 act was passed. (a) 
 
 The first act of the national legislature on the sub- 
 ject of patents was passed on the 10th of April, 1790 ; 
 several supplements soon followed; the acts of the 
 7th of February, 1793, of 7th of June, 1794, of 18th 
 of April 1800, of 3d of July, 1832, and of 13th of 
 July, 1832, were intended to amend the system. But 
 these having created some confusion, and the subject 
 requiring new provisions, the act of 4th of July, 1836, 
 repealed the whole of them, leaving them in force 
 only so far as to save rights acquired under them, and 
 for completing incipient proceedings. The existing 
 laws on the subject are the act of 4th of July, 1836, 
 the act of 3d of March 1837, the act of 29th of Au- 
 gust, 1842. 
 
 ^rt. 2. — Of the patentee. « 
 
 527. The patentee may be any person or persons 
 having discovered or invented the thing to be pa- 
 tented ; whether he be a citizen of the United States 
 or an aUen, he has a right to a patent on fulfilling the 
 requirements of the law. (6) To entitle a party to a 
 patent he must not only be an inventor, but the original 
 inventor, that is, the first inventor who reduces his 
 invention to practice. (c) 
 
 528. On the death of the inventor before the patent 
 is issued, it shall be granted to the executor or admin- 
 istrator of such person, in trust for the heirs at law of 
 the deceased, in case he shall have died intestate ; but 
 if otherwise, in trust for his devisees. (^) 
 
 529. If the inventor assigns his right, the patent 
 shall be granted to his assignee, on his recording the 
 
 (a) Blanchard v. Sprague, 3 Sumn. 535 ; S. C. 2 Story, R. 164. 
 (J) Act of July 4, 1836, s. 6. 
 
 (c) Woodcock V. Parker, 1 Gallis. 438 ; Bead v. Cutter, 1 Story, R. 
 590. 
 
 (d) Act of July 4, 1836, s. 10. 
 
208 OF THINGS. 
 
 No. 530. Book 2, part 2, tit. 3, chap. 1, sec. 2, §2, art. 3. No. 530. 
 
 assignment, (a) and fulfilling other requirements of 
 the law. 
 
 Jlrt. 3. — For what invention a patent will be granted. 
 
 530. A patent will be granted for the invention or 
 discovery of any new and useful art, machine, manu- 
 facture, or composition of Inatter, or any new and 
 useful improvement on any art, machine, manufac- 
 ture or composition of matter not known or used 
 before such discovery or invention, and not, at the 
 time of the application for a patent, in public use or 
 on sale, with the consent or allowance of the inventor 
 or discoverer. 
 
 The thing to be patented must be an invention or 
 discovery, it must be new and useful. 
 
 By the term useful invention, is meant an inven- 
 tion which may be applied to some beneficial use in 
 socie4^-, in contradistinction to what is injurious to 
 morals, to the health of the people, or to the good 
 order of society ; (b) the term is also used in opposition 
 to frivolous or mischievous. (c) 
 
 The invention or discovery must be something 
 which the inventor has himself found out ; some pecu- 
 liar device or manner of producing any given effect. 
 A patent cannot therefore be taken out for the ele- 
 mentary principles of motion, which philosophy and 
 science have discovered, but only for the manner of 
 applying them.{d) A patent may be taken out for an 
 improvement on a machine, which is known and 
 used,(e) but a mere change of proportions will not 
 entitle the party to a patent.(/) 
 
 (a) Act of March 3, 1837, s. 6. 
 
 (*) Bedford v. Hunt, 1 Mason, 0. C. R. 302 ; Kneass v. The Schuylkill 
 Bank, 4 Wash. 0. C. R. 9. 
 
 (c) Lowell V. Lewis, 1 Mason's C. 0. R. 182; Renouard, 177; Perpig. 
 Man. des. lay. partie 2, c. 2 ; Phill. on Pat. c. 7, s. 14, p. 136. 
 
 (d) Woodcock V. Parker, 1 Gallis. 438 ; Blanchard v. Spraaiie, 3 Sumn. 
 535 ; 2 Gallis. 51. f & ' 
 
 (e) Evans v. Eaton, 3 Wheat. 454. 
 
 (/) Woodcock V. Parker, 1 Gallis. 438 ; 2 Gallis. 51. 
 
OF CHATTELS PERSONAL. 209 
 
 No. 531. Book2, part 2, tit. 3, chap. 1, sec. 2, §2, art. 3, No. 532. 
 
 531. Among inventors, he who is first in time, has 
 a prior right to the patent for the invention: qui prior 
 est in tempore, potior est in jure.[a) If the patentee be 
 not the first, or original inventor, in reference to all 
 the world, he is not entitled to a patent, although he 
 had no knowledge of the prior existence of the inven- 
 tion. (6) But selling a right before obtaining the 
 patent, does not destroy the novelty, in consequence 
 of a proviso in the act of congress. (c) And by two 
 other provisions in the acts of congress, (<?) an invention 
 may be patented although it may have been known in 
 a foreign country, not exceeding six months, or may 
 have been patented there. 
 
 532. The acts which regulate patent rights gene- 
 rally have already been considered. It remains to 
 notice the act of August 29, 1842, which provides, 
 section 3, that any citizen or citizens, or aUen 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 manufac- 
 ture, whether of metal or other material or materials, 
 or any new and original design for the printing of 
 woollen, silk, cotton, or other fabrics, or any new and 
 original design for a bust, statue, or has relief or 
 composition in alto or basso relievo, or any new and 
 original impression or ornament to be placed on any 
 article of manufacture, the same being formed in 
 marble or other material, or any new and useful 
 pattern, or print, or picture, to be either worked into 
 or worked on, or printed or painted or cast or otherwise 
 
 (a) Gray v. James, Pet. 0. 0. R. 394 ; Reed v. Culter, 1 Story, 590. 
 
 (b) 1 Gallis. 438 ; 3 Wheat. 454 ; Shaw v. Cooper, 7 Pet. 292. 
 
 (c) Act of March 3, 1839, s. 7. See the following cases as to what is or 
 is not a sufficient novelty. Bean v. Smallwood, 2 Story, 408 ; Howe v. 
 Abbott, 2 Story, 190; Stanley v. Whipple, 2 McLean, 35 ; Potts v. Whit- 
 man, 2 Story, 609 ; Winans v. Boston & Prov. R. B. Cor. 2 Story, 412 ; 
 Geiger v. Cook, 3 W. & S. 266. 
 
 (d) Act of March 3, 1839, s. 6 ; Act of July 4, 1836, s. 8. 
 
 Vol. I. 14 
 
210 OF THINGS. 
 
 No. 533. Book 2, part 2, tit. 3, chap. 1, sec. 2, §2, art. 4. No. 534. 
 
 fixed on, any article of manufacture, or any new and 
 original shape or configuration of any article of manu- 
 facture not known or used by others before his, her, 
 or their invention or production thereof, and prior to 
 the time of his, her, or their application for a patent 
 therefor, and who shall desire to obtain an > exclusive 
 property or right therem to make, use, and sell and 
 vend the same, or copies of the same, to others, by 
 them to be made, used, and sold, may make applica- 
 tion in writing to the commissioner of patents ex- 
 pressing such desire, and the commissioner, on due 
 proceedings had, may grant a patent therefor, as in 
 the case now of application for a patent: provided, 
 that the fee in such cases which by the now existing 
 laws would be required of the particular applicant 
 shall be one half the sum, and that the duration of 
 said patent shall be seven years, and that all the 
 regulations and provisions which now apply to the 
 obtaining or protection of patents not inconsistent 
 with the provisions of this act shall apply to applica- 
 tions under this section. 
 
 Art. 4. — Of the proceedings to obtain a patent. 
 
 533. In this article will be considered, 1, the caveat ; 
 2, the proceedings without opposition ; 3, conflicting 
 claims. 
 
 1. Of the caveat. 
 
 534. Any citizen of the United States, or alien who 
 shall have resided in the United States one year next 
 preceding, and shall have made oath of his intention 
 to become a citizen thereof, who shall have invented 
 any new art, machine, or improvement thereof, and 
 shall desire further time to mature the same, may, on 
 paying to the credit of the treasury the sum of twenty 
 dollars, file in the patent office a caveat, setting forth 
 the design and purpose thereof, and its principal and 
 distinguishing characteristics, for the protection of his 
 rights till he shall have matured his invention. The 
 
OF CHATTELS PERSONAL. 211 
 
 No. 535. Books, parts, tit. 3, chap. 1, sec. 2, {2, art. 4. No. 536. 
 
 caveat shall be filed in the confidential archives of the 
 office and preserved in secrecy. (a) 
 
 If another person should, within a year from the 
 filing of the caveat, apply for a patent interfering with 
 the rights of the person who has filed his caveat, the 
 commissioner of patents is required to give the latter 
 notice by mail, who shall within three months after 
 receiving the notice declare whether he will avail 
 himself of the benefit of the caveat. If he does, he is 
 required to file liis description, specifications, drawings 
 and model. If the claims interfere with each other 
 they shall be considered as conflicting claims. (&) 
 
 If the person filing the caveat shall complete his 
 patent within the year, the twenty dollars he has paid 
 shall be allowed him on account of the (Juty or tax 
 on patents ; if not, no part of this money shall be 
 returned, (c) 
 
 2. Proceedings without opposition, 
 
 535. Under this head will be examined, 1, the duty 
 or tax to be paid; 2, the petition; 3, the description 
 or specification; 4, the drawings, specimens and model; 
 5, the oath ; 6, examination by commissioner. 
 
 1. Of the duty or tax on patents. 
 
 536. A citizen of the United States, or a foreigner 
 who has resided therein one year, who shall have 
 made oath of his intention to become a citizen, is 
 required to pay into the treasury of the United States 
 thirty dollars ; subjects of Great Britain five hundred 
 dollars ; and all other persons three hundred dollars. 
 If the application of a citizen is withdrawn, before 
 issuing a patent, or that of a foreigner be withdrawn 
 or rejected, two-thirds of the money he shall have so 
 paid shall be returned to h.im..{d) 
 
 (a) Act of July 4, 1836, s. 12. 
 
 (b) Idem. 
 
 (c) Idem. 
 
 {d) Act of July 4, 1836, s. 9 ; Id. s. 7; Act of March 3, 1837, S. l2. 
 
212 OF THINGS. 
 
 No. 537. Book 2, part 2, tit. 3, chap. 1, sec. 2, J 2, art. 4. No. 540. 
 
 2. Of the petition for a patent. 
 
 537. The petition is addressed to the commissioner 
 of patents; it states the invention, and prays for a 
 patent. 
 
 3. Of the description or specification. 
 
 538. The specification is a particular and detailed 
 account of the invention sought to be patented ; it is 
 necessary to file a specification or an instrument in 
 writing, which must lay open and disclose to the 
 public every part of the process by which the inven- 
 tion can be made ugeful ; if the specification does not 
 contain the whole truth of the discovery, or contains 
 more than is requisite to produce the desired efiect, 
 and the concealment or addition was made for the 
 purpose of deception, the patent is void ; for if the 
 specification were insufficient on account of its want 
 of clearness and exactitude, it would be a fraud, and 
 the patentee would obtain a monopoly without giving 
 up his invention. (a) 
 
 4. Of the drawings, specimens and models. 
 
 539. The applicant for a patent is required to fur- 
 nish drawings which shall accompany his application, 
 with written references, when the case admits of 
 drawings, or with specimens and ingredients, and of 
 the composition of matter, sufficient in quantity for 
 the purpose of experiment, when the invention or 
 discovery is of a composition of matter; which de- 
 scriptions and drawings, signed by the inventor, and 
 attested by two witnesses, shall be filed in the patent 
 office. He shall also furnish a model of his invention, 
 in all cases which admit a representation by model, of 
 a convenient size to exhibit advantageously its several 
 parts. 
 
 5. The oath. 
 
 540. The applicant is required to make oath or 
 affirmation that he does verily beheve, that he is the 
 
 (o) 1 BeU's Com. 112, 5th ed. 
 
OF CHATTELS PERSONAL. 213 
 
 No. 541. Book2, parts, tit. 3, chap. 1, sec. 2, 42, art. 4. No, 542. 
 
 original and first inventor or discoverer of the art, etc., 
 for which he sohcits a patent, and that he does not 
 know or beUeve the same was ever known or used ; 
 and also of what country he is a citizen. The oath 
 may be made in the United States, before any person 
 authorized by law to administer oaths; and, out of 
 the United States, before any minister plenipotentiary, 
 charge d'affaires, consul or commercial agent, holding 
 a commission under the government of the United 
 States, or before any notary public of the country in 
 which such applicant may be. (a) 
 
 6. Of the examination iy the commissioner. 
 
 541. The commissioner is required to examine or 
 cause to be examined the application, description and 
 specification, and pass upon the merit of the invention 
 as being new and useful, and if he shall find the inven- 
 tion is not original, or is not new, or the specification 
 defective, he shall notify the applicant of the same. 
 The applicant may then withdraw his application or 
 insist upon his right to a patent. In the latter case 
 he must make oath anew, pay twenty-five dollars 
 additional into the treasury, and then an appeal may 
 be taken to the chief justice of the district court of 
 the United States, for the District of Columbia, whose 
 decision shall be final on the commissioner. 
 
 3. Of conflicting claims. 
 
 542. When there are conflicting claims, the com- 
 missioner is required to give an opinion on them; from 
 his judgment, there is an appeal to the chief justice 
 of the district court of the District of Columbia, and, 
 in case there is no opposing party, a copy of the bill 
 shall be served on the commissioner of patents, when 
 the whole of the expenses of the proceeding shall be 
 paid by the applicant, whether the final decree be in 
 his favor or otherwise. (6) 
 
 {a) Act of July 4, 1836, s. 6 ; Act of August 29, 1842, s. 4. 
 (b) Act of July 4, 1836, s. 16 ; Act of March 3, 1839, s. 10. 
 
214 OF THINGS. 
 
 No. 543. Book 2, part 2, tit. 3, chap. 1, sec. 2, § 2, art. 5. No. 54S. 
 
 Art. 5. — Of the patent, 
 
 543. Under this head will be considered, 1, the form 
 of the patent ; 2, the correction of the patent ; 3, the 
 disclaimer ; 4, the assignment of the patent ; 5, the 
 extension of the right. 
 
 1. Of the forrn of the patent. 
 
 54:4:. The patent is issued in the name of the United 
 States, under the seal of the patent office, signed by 
 the secretary of state, and countersigned by the com- 
 missioner of said office. It contains a short description 
 or title of the invention, and in its terms grants to the 
 apphcant, his heirs, etc., for a term not exceeding 
 fourteen years, the full and exclusive right and liberty 
 of making, using, and vending to others to be used, 
 the said invention or discovery, referring to the speci- 
 fication for the particulars thereof, a copy of which is 
 annexed to the patent. It is usually dated on the day 
 it is issued, but it may be dated on fihng of the 
 specification and drawings, not however exceeding six 
 months prior to the actual issuing of the patent. (a) 
 
 2. Of the correction of the patent. 
 
 545. T\Tien an error has been committed, without 
 fraud, in the description or specification, the commis- 
 sioner of patents may, on the payment of the further 
 duty of fifteen dollars by the patentee, and the sur- 
 render of the patent, grant a new one. And the 
 original patentee may correct his description and 
 specification by adding any new improvement he may 
 have subsequently made, upon the payment of a like 
 sum of fifteen dollars. (&) Or, he may have two 
 patents at his choice by paying thirty dollars for each 
 additional patent. In that case duplicate models 
 must be deposited. (c) 
 
 (a) Act of July 4, 1836, s. 5 and 8. 
 
 (b) Act of July 4, 1836, s. 13. 
 
 (c) Act of March 3, 1837, s. 5. 
 
OF CHATTELS PERSONAL. ,215 
 
 No. 546. Book 2, part 2, tit. 3, chap. 1, Bee. 2, § 2, art. 8. No. 549. 
 
 3. Of the disclaimer. 
 
 646. When a patentee, through inadvertence, 
 accident or mistake, has made his specification or 
 claim too broad, he may disclaim such part, and the 
 disclaimer shall thereafter be considered as a part of 
 the original specification. But such a disclaimer shall 
 not afiect any action then pending, (a) 
 
 4. Of the assignment of the patent. 
 
 547. The patent is assignable at law, either as to 
 the whole interest, or any fractional part thereof, by 
 any instrument in writing. Such assignment, or the 
 instrument by which a right is granted over a certain 
 district, must be recorded in the patent office, within 
 three months from the execution thereof, (6) and no 
 charge is made for recording the same.(c) 
 
 5. Of the extension of the patent nght. 
 
 548. Whenever a patentee, or his assignee or 
 grantee, shall be desirous of getting an extension of 
 his patent, he must apply to the commissioner of the 
 patent office, and state his grounds. The commis- 
 sioner then advertises that such an application has 
 been made, and when and where the same will be 
 considered. The secretary of state, the commissioner 
 of the patent office, and the solicitor of the treasury, 
 are a board to hear all parties interested. If it shall 
 appear that the patentee has failed to obtain for his 
 patent a reasonable remuneration, then the patent 
 shall be extended for seven years longer. ((^) 
 
 Art. 6. — Of the after requisites to secure a patent right. 
 
 549. Patentees and assignees of patents are required 
 to stamp, engrave, or cause to be stamped or engraved 
 
 (a) Act of March 3, 1837, s. 7. 
 
 (b) Act of July 4, 1836, s. 11. 
 
 (c) Act of March 3, 1839, s. 8. 
 \d) Act of July 4, 1836, s. 18. 
 
216 OF THINGS. 
 
 No. 550. Books, parts, tit. 3, chap. 2, sec. 1,2. No. 552. 
 
 on each article vended, or offered for sale, the date of 
 the patent, under the penalty of one hundred dollars. (a) 
 
 CHAPTER II.— OF TITLE TO THINGS ACQUIRED IN WAR. 
 
 550. The first class of cases where things are 
 acquired not by original possession, is by the rights 
 of war. The right and title to personal chattels is 
 acquired in war in three ways, namely : 1 , by the 
 capture of booty ; 2, by forced contributions ; 3, by 
 maritime prizes. 
 
 SECTION 1. OF BOOTY. 
 
 551. Booty is the capture of personal property, by 
 a public enemy on land, in contradistinction to prize, 
 which is a capture of such property, by/ such an 
 enemy, on the sea. After booty has been in posses- 
 sion of the enemy for twenty-four hours, or carried 
 into a place of safety, infra prasidia of the captor, it 
 becomes absolutely his, without any right of postliminy 
 in favor of the original owner, particularly when it 
 has passed, bona fide, into the hands of a neutral. (6) 
 
 The right of booty belongs to the sovereign, unless 
 where pillage is allowed, when it belongs to the indi- 
 vidual soldiers. In modern times, it is unusual among 
 civilized nations to seize private property as booty, (c) 
 
 SECTION 2. OF CONTRIBUTIONS. 
 
 552. By contributions is meant a forced levy of 
 money or property by a belUgerent in a hostile 
 country which he occupies, by which means the 
 country is made to contribute to the support of the 
 army of occupation. These contributions are usually 
 taken instead of pillage. (rf) 
 
 (a) Act of August 29, 1842, s. 6 and s. 5. 
 (J) Wheat. Int. Law, part 4, c. 2, § 11. 
 
 (c) See Vatt. liv. 3, c. 9, ^ 164; Poth. Dr. de Propriete, part. 1, c. 2, 
 art. 1, § 2 ; Burl. N. and P. Law, part 4, c. 7, n. 12. 
 
 (d) Vatt. Dr. des Gens, liv. 3, c. 9, ^ 165 ; Id. liv. 4, c. 3, ? 29. 
 
OF CHATTELS PERSONAL. 217 
 
 No. 553. Book2, pan2,tit. 3, chap. 2, sec. 3, §1. No. 557. 
 
 SECTION 3. — OF PRIZES. 
 
 553. A prize is the apprehension and detention at 
 sea, or places within the jurisdiction of the courts of 
 admiralty, of a ship or other vessel, by authority of a 
 belligerent power, either with the design of appro- 
 priating it, with the goods and effects it contains, or 
 with that of becoming master of the whole or a part 
 of its cargo. (c) The vessel or goods so taken are also 
 called a prize. 
 
 554. Let us examine, 1, who may make a prize ; 2, 
 what may be captured as prize ; 3, what is a sufficient 
 capture ; 4, of the right of postliminy ; 5, of ransom ; 
 6, of adjudication as to prize or no prize ; 7, prize 
 money how distributed. 
 
 § 1. — Who may make a prize. 
 
 555. No one has a right to make war, but the 
 government duly constituted. This power is vested 
 in congress. It follows of course that no one has 
 authority to make a prize unless he is duly authorized 
 by law. When war has been declared, the public 
 vessels of the United States are employed for this 
 purpose, and their commanders are duly authorized to 
 seize enemy's property on the high seas. Such prizes 
 belong, not to the captors, but to the government. 
 Certain portions are, however, allowed to them in 
 certain cases. (&) 
 
 556. Individuals, called privateers, are also autho- 
 rized, sometimes to arm vessels and to make war upon 
 the enemy's commerce. In this case the privateer 
 receives a commission from the government. (c) One 
 who should make war without such a commission might 
 be treated as a pirate, or robber on the high seas. 
 
 557. Every vessel, whether armed or not, has a 
 right to defend itself against attack ; when in self- 
 
 (a) The Rebeokah, 1 Rob. Adm. R. 227. 
 
 (b) The Dos Hermanos, 10 Wheat. 306 ; The Joseph, 1 Gallis. 545. 
 
 (c) Murray v. Charming Betsey, 2 Oranch, 64. 
 
218 OF THINGS. 
 
 No. 558, Book 2, part 2, tit. 3, chap. 2, sec. 3, J 2, 3. No. 562. 
 
 ' defence its commander captures a hostile vessel, he has 
 a right to take possession and man out the prize. (a) 
 
 558. If a capture should be made by a non-com- 
 missioned captor, it is made for the government; the 
 only claim the captors can sustain is one for salvage. (&) 
 
 § 2. — What may be captured as a prize. 
 
 559. In general all vessels belonging to the enemy 
 may be taken, whether they be public vessels of war, 
 or merchant vessels belonging to individuals ; for war 
 is made not only against the government, but against 
 all the individual members of the hostile nation. (c) . 
 
 560. But to this general rule there are certain ex- 
 ceptions : 1, when an enemy's vessel has obtained a 
 lawful passport or safe-conduct, which is a privilege 
 granted to the enemy's vessel, exempting it from cap- 
 ture, during a time, and to the extent therein pre- 
 scribed, either from the government or its authorized 
 agent, provided the enemy's vessel has conformed 
 to the conditions of the passport ; {d) 2, when the 
 enemy's vessel has received a license to trade, it is 
 exempted from capture during the time prescribed, 
 provided it has not violated any of the conditions of 
 the license ; 3, when an enemy's vessel carries a flag 
 of truce, or is used as a cartel ship.(e) 
 
 561. Goods found on board of an enemy's ship, 
 taken as a prize, and belonging to the enemy, are 
 equally a prize with the ship ; but the goods of a neu- 
 tral on board the ship, are not prize goods.(/) 
 
 § 3. — In what places a' capture may be made. 
 
 562. A capture may be made on the high seas; it 
 
 (a) Haven v. Holland, 2 Mason, 230. 
 
 (h) The Dos Hermanos, 10 Wheat. 306 ; The Joseph, 1 Gallis. 545. 
 
 (c) Wheat. Int. Law, part 4, c. 2, ^ 4. 
 
 (d) Wheat. Int. Law, part 4, c. 2, ^ 25 ; Poth. Dr. de Propriete, part. 1, 
 c. 2, s. 2, art. 2, <) 2, n. 95. 
 
 (e) The Venus, 4 Rob. K. 289, Am. ed. ; 1 Dods. 60 ; Pet. C. 0. R. 1C6 ; 
 Dane's Ah. c. 40, a. 6, ^ 7 ; Merl. Repert. h. t. 
 
 (/) Ship Resolution, 2 Dall. 1. 
 
OF CHATTELS PERSONAL. 219 
 
 No. 563. Book 2, part 2, tit. 3, chap. 2, sec. 3. H,5. No. 564. 
 
 may also be made within the territorial hmits of the 
 United States at any place below low water mark.(«) 
 
 § 4. — What is a sufficient capture. 
 
 563. Capture is the taking of property by one bel- 
 ligerent from another. It is lawful ^when made by a 
 declared enemy duly commissioned, and according to 
 the laws of war ; and unlawful, when it is against the 
 rules established by the law of nations. (&) To make 
 a good capture the ship or vessel must be subdued or 
 taken from the enemy in open war, with intent to 
 deprive the owner of it. (c) But if there be submission 
 on one side, and possession on the other, the cap- 
 ture is complete, although no prize master be put on 
 board, (d). or , when only a prize master is put on 
 board. (e) - ., • 
 
 § 5. — Of the right of postliminy on recapture. 
 
 564. Fostliminy, . jms postliminii, is that right in 
 virtue of which persons and things taken by the enemy 
 are restored to their former state when coming again 
 under the power of the nation to which theybelong.(/) 
 But this matter is now regulated by act of congress. 
 It is provided that in case of recaptures of persons or 
 goods belonging to persons resident within, or under 
 the protection of the United States, the same not 
 having been condemned as prize by competent au- 
 thority, before the recapture, shall be restored on 
 payment of salvage of one-eighth of the value if recap- 
 tured by a public ship ; and if the recaptured vessel 
 shall have been set forth and armed before the recap- 
 ture, then the salvage to be one moiety of the value. 
 If the captured vessel previously belonged to the 
 government of the United States, and be unarmed, the 
 
 (a) The Joseph, 8 Cranch, 451. 
 
 {b) Marsh. Ins. B. 1, c. 12, s. 4. 
 
 (c) TheGrotius, 9 Cranch, 368. 
 
 {d) The Alexander, 1 Gallis. 532. 
 
 (e) The Alexander, 8 Cranch, 169. 
 
 (/) Vatt. lib. 3, c. 14, s. 204 ; Chit. Law of Nat. 93 to 104. 
 
220 OF THINGS. 
 
 No. 565. Book 2, part 2, tit. 3, chap. 2, sec. 3, § 6, 7. No. 566. 
 
 salvage is one-sixth if recaptured by a private vessel, 
 and one-twelfth if recaptured by a public ship ; if 
 armed, then the salvage to be one moiety if recaptured 
 by a private vessel, and one-fourth if recaptured by a 
 public ship. In respect to public armed ships, the 
 cargo pays at the same rate of salvage as the vessel, 
 by the express words of the act ; but in respect to pri- 
 vate vessels, the salvage is the same on the cargo, 
 whether the ship be armed or unarmed. (a) 
 
 § 6. — Of the right of ransom. 
 
 565. Ransom is an agreement between the com- 
 mander of a capturing vessel and the commander of a 
 vanquished vessel, at sea, by which the former permits 
 the latter to depart with his vessel, and gives him a 
 safe-conduct, in consideration of a sum of money 
 which the commander of the vanquished vessel, in his 
 own name, and in the name of the owners of his vessel 
 and cargo, promises to pay at a future time named to 
 the other. This contract is usually made in writing 
 in duplicate, one copy of which is kept by the van- 
 quished vessel, and is its safe-conduct, and the other 
 by the conquering vessel, and is properly called a 
 ransom-bill. (b) 
 
 § 7. — Of adjudication as to prize or no prize. 
 
 566. Before the title to a prize becomes absolutely 
 vested in the captors, it must be condemned by a com- 
 petent tribunal. (c) The jurisdiction in such cases is 
 vested in the courts of the country to which the cap- 
 tors belong, (c?) We will consider, 1, what courts have 
 jurisdiction of prize cases in the United States ; 2, over 
 what objects ; 3, effect of a decree. 
 
 (a) The Adeline, 9 Oranch, 244. 
 
 (b) 1 Kent, Com. 105. 
 
 (c) Ship Resolulion, 2 Ball. 1. 
 
 id) The Invincible, 2 Gallis. 29 ; L'Invincible, 1 Wheat. 238. 
 
OF CHATTELS PERSONAL. 221 
 
 No. 5S7. Book 2, part 2, tit. 3, ehap. 2, see. 3, j 7, art. 1, 2, 3. No. 570. 
 
 Art. 1. — What courts have jurisdiction in prize cases. 
 
 567. — 1. In the United States the district courts, 
 having admiralty jurisdiction, are alone competent to 
 try the question of prize or no prize. (a) As to which 
 of the several courts of the United States shall have 
 jurisdiction in a particular case, the rule is, that when 
 the seizure is made within the waters of one district, 
 the court of that district has exclusive jurisdiction, 
 though the offence may have been committed out of 
 the district ; when the seizure is made on the high 
 seas, the jurisdiction is in the district where the pro- 
 perty may be brought. (&) 
 
 568. — 2. Foreign courts of admiralty have juris- 
 diction of prize cases ; but the court must be that of 
 one who is a belligerent, for the courts of a neutral 
 have no jurisdiction in such cases. (c) 
 
 Jlrt. 2. — Over what subjects prize courts have jurisdiction. 
 
 569. As a prize court proceeds in rem, it can exer- 
 cise jurisdiction only when the property claimed as 
 prize has come within its territorial jurisdiction. ((Z) 
 The prize jurisdiction extends over goods taken on the 
 high seas, within the waters of the United States, and 
 in foreign ports and harbors by naval forces, or by the 
 joint operation of naval and land forces. (e) But it 
 does not extend over goods taken on land.(/) 
 
 .^rt. 3. — Effect of the decree of a prize court. 
 
 570. The decree of a prize court of competent juris- 
 diction is binding and conclusive not only upon the 
 
 (a) Sarportus v. Jennings, 1 Bay, 470 ; Jenkins v. Putnam, 1 Bay, 8 ; 
 Act of September 24, 1789, s. 9 ; Abbott on Shipp. part 1, c. 1, n. 7 ; Hal- 
 lett V. Lamothe, 3 Murph. 279. 
 
 (b) 6 Cranch, 281 ; The sloop Abby, 1 Mason, 360 ; The brig Little Ann, 
 PSiinG 40. 
 
 (c) Findlay v. The William, IPet. Ad. Cas. 12 ; The Invincible, 2 Gallis. 
 29 ; Santissima Trinidad, 1 Brock, 478. 
 
 (d) Wheelwright v. Depeyster, 1 John. 471. Sed vide The Arabella, 2 
 Gallis. 368. 
 
 (e) Lindo v. Rodney, Dougl. 613, note. 
 (/) Id. ; Slocum v. Wheeler, 1 Conn. 429. 
 
222 OF THINGS. 
 
 No. 571. Book 2, part 2, tit. i, chap. 1. No. 572. 
 
 parties actually litigating in the cause, but upon all 
 others, because all who had an interest might have 
 appeared and asserted their rights. (a) But if the 
 points decided by a foreign prize court are ambiguous, 
 they may be examined. (6) And, until the admiralty 
 has exercised its jurisdiction, the question of property 
 is open for the application of the principles of the com- 
 mon law.(c) 
 
 TITLE IV.— OP THE MANNEK OP ACQUIRING PBO- 
 PEETY BY CONTEACT. 
 
 CHAPTER I.- GENERAL RULES. 
 
 571. The next mode of acquiring a derivative title 
 to property is, by contract or by obligations arising 
 from agreements. This is the most important and 
 most frequent way of acquiring title to property. 
 The variety of agreements is very great, their kind 
 is extremely varied, the rules which concern them are 
 very extended, and very diflferent from each other in 
 the several kinds of contracts. There are some rules, 
 however, which apply to all kinds of contracts. 
 
 572. Various definitions have been given of the 
 word contract, either of which perhaps conveys the 
 true idea of the word. A contract, according to 
 Pothier,(J) is a convention or agreement by which 
 two or more persons consent to form, between them- 
 selves, some lawful and binding engagement, or to 
 rescind a preceding one, or to modify it. Black- 
 stone (e) defines it to be an agreement upon a sufficient 
 consideration to do or not to do a particular thing. 
 A contract has also been defined to be a compact be- 
 tween two or more persons. (/) 
 
 (a) Oherriot v. Poussat, 3 Binn. 220 ; Sheaf v. 70 hogsheads, etc. of sugar, 
 Bee, 163 ; Armroyd v. Williams, 2 Wash. 0. C. 508 
 
 (b) Vasse v. Ball, 2 Yeates, 178. 
 
 (c) Jenkins v. Putnam, 1 Bay, 8. 
 
 (d) Des Oblig. n. 3. 
 
 (e) 3 Oomm. 442. 
 
 (/) Fletcher v. Peck, 6 Oranch, 136. See Ciy. Code of Lo. art. 1754 ; 
 Code Ciy. 1101 ; 1 Pow. on Contr. 6. 
 
OF PROPERTY BY CONTRACT. 223 
 
 No. 573. Book 2, part 2, tit. 4, chap. 2. No. 676. 
 
 573. Every contract imposes upon the contractor an 
 obligation to do or to give something according to the 
 law of the land. All obligations derive their force 
 from the law, and therefore every obligation supposes 
 a superior law which binds us to the performance. 
 It is owing to this that the rule has been established 
 that a lawful contract is considered as the law of the 
 parties. 
 
 574. The intent of a contract is to form an obliga- 
 tion or engagement. In the engagement which arises 
 from a contract we may distinguish two things very- 
 different in themselves, namely : 
 
 1st. The obligation of him who makes the promise 
 and who fulfils a duty in executing it. 
 
 2d. The right of him who accepts the promise. 
 The right consists in the faculty of enforcing the ful- 
 filment of the promise in a court of justice. Duty and 
 right, then, are correlative, and cannot exist without 
 each other. One cannot be obligated or bound by the 
 contract, if another cannot enforce him to accomplish 
 his obligation or engagement. 
 
 575. He toward whom the obligation has been 
 contracted is called the obligee or creditor j and he who 
 is bound to fulfil it is the obligor or debtor. 
 
 CHAPTER II.— OP THE ESSENTIAL CONDITIONS OP A CONTRACT. 
 
 576. Having given some general rules relating to 
 contracts, it will be proper now to examine the con- 
 ditions essential to their validity. They are, 1, the 
 agreement of the party who obligates himself to be- 
 come bound, and the consent of the party toward 
 whom the obligation is formed to accept it ; 2, the 
 capacity of the parties; 3, a thing which is the object 
 of the agreement ; and 4, a lawful consideration for 
 the obligation. 
 
 There are some general rules as to the forms 
 of contracts, but they are not always requisite to be 
 observed in order to their validity ; form frequently is 
 
224 OF THINGS. 
 
 No. 577. Books, part 2, tit. 4, chap. 2, sec. 1, 5 1. No. 578. 
 
 of little consequence, and substance is every thing. 
 There is a great difference between an agreement in 
 writing, a deed, for example, and the contract which 
 it is intended to secure. The deed may be perfectly 
 formal and good, and the contract may be absolutely 
 void ; as, where a man's bond is obtained by fraud, 
 the bond may be good, and, on account of duress or 
 fraud, the contract may be void. This distinction 
 must always be kept in view in considering all con- 
 tracts. And, on the other hand, the agreement may 
 be good, and the instrument to secure its performance 
 may be imperfect ; as, for example, when a man lends 
 anotheiE a sum of money which is to be secured by bond, 
 and it is to be returned in one year, and the paper 
 intended as a bond has not been sealed. 
 
 SECTION 1. — OF THE CONSENT OF THE PARTIES. 
 § 1. — How consent is to be manifested. 
 
 577. Consent is an agreement to something pro- 
 posed by another ; it differs from assent, which is an 
 acquiescence in something that has been done. (a) In 
 a contract two things may be distinguished, the pro- 
 position or offers by one of the parties, and the accept- 
 ance by the other : duorum in idem placitum consensus. 
 The contract begins by the offer or proposition ; it is 
 completed by the acceptance. 
 
 578. The party who makes the offer has a right to 
 recall it until the other has acquired a right to prevent 
 him, and, in general, this right can be acquired only 
 by acceptance. Although the will of the owner is 
 sufficient to divest him of his right, that alone has not 
 the effect to transfer it to another. It is by the 
 acceptance of the offer that there is a union of minds, 
 an agreement. (6) 
 
 But from the moment of the acceptance of an offer, the 
 
 (a) Wolff, part 1, ^ 27, 30 ; Pard. Dr. Com. n. 138. 
 
 [b) Tucker v. Wood, 12 John. 190 ; Bower v. Blessing, 8 S. & R. 243. 
 
OF PROPERTY BY CONTRACT. 225 
 
 No. 579. Books, parts, tit. 4, chap. 2, sec. 1, § 1. No. 580. 
 
 will of the person who offered, who till then was free 
 to retract his offer, is irrevocably bound by necessity: 
 contractus sunt ah initio voluntatis, ex post facto necessi- 
 tatis. 
 
 When the acceptance of an offer is made without 
 condition, the contract is complete ;{a) but when it is 
 made with a condition, in general there is no binding 
 contract. For example, I offer to sell you a thousand 
 bushels of wheat, at a certain price, in cash, and you 
 accept my terms, but on condition that I will take a 
 good endorsed note at sixty days, there is no contract 
 between us. (6) 
 
 But there are some cases where, although the offer 
 and the acceptance be not the same, yet there is a valid 
 contract : for example, A, a merchant of Philadelphia, 
 writes to B, a merchant in Cincinnati, and offers him 
 four cents per pound for one hundred barrels of pork, 
 and, on the same day, B writes to A, offering to sell 
 him one hundred barrels of pork at three cents and a 
 half per pound, and the letters, which cross each 
 other, are received by the parties, the contract is com- 
 plete, and A shall pay B three and a half cents per 
 pound, for the greater includes the less.(c) 
 
 579. The acceptance may be made by a separate 
 paper, as between parties who are separated and con- 
 tract by letter, and questions then arise as to when the 
 acceptance is complete, whether immediately upon its 
 being made, or whether it must be communicated to 
 the other party. The rule is, that it must be commu- 
 nicated to the party offering, (c?) 
 
 580. But the consent to bind the parties need not 
 be express in all cases, it may be implied. It may be 
 
 (a) Mactier v. Frith, 6 Wend. 108. 
 
 (b) Tuttle J). Love, 7 John. 470 ; Eliason v. Henshaw, 4 Wheat. 225 ; 
 Bruce V. Pearson, 3 John. 534. 
 
 (c) Poth. Vente, n. 26 ; Brown on Sales, ^ 223. 
 
 ((/) Thayer K. Middlesex Fire Ins. Co., 10 Pick. 326; 4 Wheat. 225: 
 McOullock V. Eagle Ins. Co., 1 Pick. 278 ; Slaymaker v. Irwin, 4 Whart. 
 369. 
 
 Vol. I. 15 
 
226 OF THINGS. 
 
 No. 581. Books, part 2, tit. 4, chap. 2, sec. 1,52, 3. No. 582. 
 
 manifested by signs, by acts, or even by silence. A 
 nod, a sbake of the hands, have always been signs of 
 consent ; indeed, there is a contract which, owing to 
 its being consummated in this manner, is called a hand- 
 sale : venditio per mutuam manuum complexionem.(a) 
 And silence, when a man is bound to speak, gives 
 consent. (&) 
 
 § 2. — Of the want of consent in consequence of a mistake. 
 
 581. When there is a mistake, either as to the per- 
 son or the thing which is the subject of the contract, 
 it is evident there is no agreement. When the error 
 is respecting the substance of the thing which is the 
 subject of the contract, the agreement is null,(c) but 
 when it falls merely, on a quality of that thing, the 
 contract is valid. It is not in general the quality, but 
 the substance of the thing which is the object of the 
 agreement. But there are some qualities which are 
 considered as forming the substance of the thing ; as 
 for example, if I sell you a gold watch, both of us be- 
 lieving that the watch shown you is of gold, you are 
 not bound to take the watch if it be only copper gilt 
 over.(c^) 
 
 § 3. — Duress destroys the consent given. 
 
 582. By duress is meant an actual or threatened 
 violence, or restraint of a man's person contrary to law, 
 to compel him to enter into a contract, or to discharge 
 one. 
 
 Violence and duress annul the consent; it is evident 
 that there is no consent when physical violence has 
 been used over a person to constrain him to do an act. 
 
 (a) 2 Bl. Com. 448. 
 S) Moore v. Smith, 14 S. & R. 393 ; 1 Greenl. Ev. $ 197, 198, 199. 
 
 (c) Hitchcock v. Giddings, 4 Price, 135 ; Allen v. Hammond, 11 Pet. 
 63 ; Poth. Vente, n. 4. 
 
 (d) 1 Poth. Ob. n. 18. See WiUiams v. Spafford, 8 Pick. 250 ; Gardiner 
 ,v. Gray, 4 Campb. 144; Shepherd v. Kain, 5 B. & Aid. 240; Chandelor 
 ,t>. Lopus, Cro. Jac. 4. 
 
OF PROPERTY BY CONTRACT. 227 
 
 No. 583. Book 2, part 2, tit. 4, chap. 2, sec. 1, 5 4. No. S85. 
 
 The constraint is generally only moral ; it acts on 
 the will, which it determines to choose between two 
 evils. A robber meets me on the highway, with a 
 pistol at my breast, he requires my purse or my life. 
 I have the choice of refusing my purse and exposing 
 my life, or vice versA; but still my choice is not free, 
 for, left free, I would choose neither alternative. The 
 constraint was therefore absolute. 
 
 583. The duress may be in several ways, by impri- 
 sonment, per minas, or even duress of goods. 
 
 1. Duress by imprisonment, is where a man actually 
 loses his liberty ; when the imprisonment is unlawful, 
 it is evident that the constraint is such that it will 
 avoid the contract. (a) But if a man be lawfully im- 
 prisoned, it is no reason for avoiding a contract in other 
 respects fair, although the prisoner may enter into it 
 to obtain his liberty. (&) 
 
 2. Duress per minas, which is a well-grounded fear 
 of loss of life, or mayhem, or loss of limb. (c) 
 
 3. In South Carolina, duress of goods, under circum- 
 stances of great difficulty, will avoid the contract. ((Z) 
 
 584. In connection with this subject, it is proper to 
 mention that a contract made with a person drunk is 
 void, because there is no consent, (e) 
 
 § 4. — Of fraud to vitiate the consent. 
 
 585. Fraud is any trick or artifice employed by one 
 person to induce another to fall into an error, or to 
 detain him in it, so that he may make an agreement 
 contrary to his interest, or prevent him from making 
 one favorable to himself. 
 
 Fraud is a ground for annulling an agreement, and 
 
 (a) Stouffer v. Latshaw, 2 Watts. 167 ; 1 Bailey, 84 ; 3 N. H. Rep. 508. 
 (i) Shepherd v. Watrous, 3 Caines, 166. 
 
 (c) 1 Bl. Com. 131 ; 2 Inst. 438 ; 2 Roll. Ah. 124 ; Bac. Ah Duress ; 
 Bac. Ah. Murder, A.; Sav. Dr. Rom. ^ 114. 
 
 (d) Sasportus v. Jennings, 1 Bay, 470 ; Collins v. Westhury, 2 Bay, 211. 
 
 (e) Barrett v. Buxton, 2 Aik. 167. See 1 Green, 233 ; 1 South. 361 ; 1 
 Bihh, 168 ; 2 Verm. 97 ; 2 Rep. Const. Ot. 27. 
 
228 OF THINGS. 
 
 No; 586. Book 2, part 2, tit. 4, chap. 2, sec. 2. No. 587. 
 
 it has much analogy with the preceding, particularly 
 with error or mistake. Violence produces fear, which 
 destroys consent for want of freedom ; fraud induces 
 error, which prevents consent from the beginning; for 
 there can be no valid consent when it has been given 
 by mistake or surprised by fraud. If an error annuls 
 an agreement, much more must fraud have that eflFect. 
 There then exists a double motive for doing so : 1, 
 the error which induced the appearance of a consent, 
 when it never existed ; 2, the principle of justice 
 which requires every one to repair the damage he has 
 caused to another by his act, and which deprives him 
 of the right to accept of a promise extorted by his 
 artifices. 
 
 The test of fraud is an intention to deceive. («) 
 
 586. Fraud is also divided into actual or positive 
 fraud and constructive fraud. 
 
 A positive fraud is the intentional and successful 
 employment of any cunning, deception, or artifice, to 
 circumvent, cheat, and deceive another. (&) 
 
 Constructive fraud is such a contract or act, which, 
 though not. originating in evil design and contrivance 
 to perpetuate a positive fraud or injury upon other 
 persons, yet, by its necessary tendency to deceive 
 and mislead them, or to violate public or private con- 
 fidence, or to impair or injure public interests, is 
 deemed equally reprehensible with positive fraud, and, 
 therefore, is prohibited by law, as within the same 
 reason and mischief as contracts and acts done mdo 
 animo.{c) 
 
 SECTION 2. — OF THE CAPACITY OF THE CONTRACTING PAETIES. 
 
 587. Having considered in the preceding section 
 what kind of consent is required in order to make a 
 
 (a) For the cases in which equity will relieve on account of fraud, see B. 
 5, t. 3, c. 2, s. 3. 
 lb) 1 Story, Eq. ch. 7, § 186 ; Dig. 4, 3, 1, 2 ; Dig. 2, 14, 7, 9. 
 (c) 1 Story, Eq. § 258 to 440. 
 
OF PROPERTY BY CONTRACT. 229 
 
 No. 888. Book 2, part 2, tit. 4, chap. 2, sec. 2, } 1. No. 588. 
 
 binding contract, it seems proper to inquire next into 
 the capacity of the contracting parties. 
 
 To be enabled to contract, the party must be of 
 sound mind, in a state to give his consent with dis- 
 cernment, freedom and reflection. 
 
 All persons generally can be parties to contracts, 
 unless they labor under some disability, and are 
 declared incapable by law. 
 
 Some incapacities arise from nature, as in cases of 
 infancy, idiocy, lunacy, or a want of understanding. 
 The law merely gives certain rules to determine and 
 apply them. Other incapacities are created by law, 
 and do not arise from nature ; such are the incapaci- 
 ties of married women, of trustees, with regard to 
 buying trust property. This section is naturally 
 divided into three classes of cases : 1, where the parties 
 want understanding ; 2, where they have understand- 
 ing, but who, in law, are considered as wanting free- 
 dom to exercise their will ; 3, where they are forbid- 
 den to contract because of some rule of policy of the 
 law. 
 
 § 1. — Of persons who want understanding. 
 
 588. The contracts of idiots and lunatics are not 
 binding, because they are unable from mental infirmity 
 to form an accurate judgment of their actions, and 
 consequently, can give no serious consideration to 
 their engagements. (a) 
 
 Contracts made with lunatics, after they have been 
 so found by inquisition, upon proceedings before a 
 competent tribunal, are absolutely void .(6) As to 
 contracts made anterior to such finding, which gene- 
 rally states the time when the lunacy commenced, 
 they are presumed to be valid ;(c) they are not void 
 but voidable. (rf) 
 
 (a) Newl. Contr. 19 ; 1 Fonbl. Eq. 46, 47 ; Highm. on Lun. HI. 
 (i) Pearl v. McDowell, 3 J. J. Marsh. 658. 
 
 (c) Lee V. Lee, 4 McCord, 183 ; Jackson c. King, 4 Cowen, 207. 
 
 (d) Jackson v. Gremaer, 2 Cowen, 552. See Hutchinson v. Sandt, 4 
 Rawie, 234. 
 
230 OF THINGS. 
 
 No. 589. Book2, parts, tit.4, chap. 2, sec.2, § 1. No. 591. 
 
 But the contract of a man of a weak mind is bind- 
 ing on him, when no advantage has been taken of him, 
 and there has been no fraud in the transaction, (a) 
 
 589. A person in a complete state of inebriation, 
 we have seen in the preceding section, has no agreeing 
 mind. 
 
 590. In general the contract of an infant, however 
 fair and conducive to his interest it may be, is not 
 binding on him, unless the supply of necessaries to 
 him be the object of the agreement,(6) or the contract 
 be for his benefit, and authorized either by statute or 
 some rule of law, as in the case where an infant binds 
 himself apprentice, (c) or unless it is confirmed by him 
 after he has attained his full age, and in that case the 
 contract is no longer the contract of an infant. ((^) 
 But he may take advantage of contracts made with 
 him, although the consideration were merely his 
 own promise, as in the case of mutual promises to 
 marry, (e) 
 
 When a contract entered into by an infant has been 
 executed, and, on coming of age he rescinds it, he 
 must restore the consideration he has received. (/) 
 
 591. To the general rule that an infant cannot 
 enter into a contract, are the following exceptions: 
 
 1. When an infant is authorized to enter into the 
 contract, by a statute ; as, where he is authorized to 
 enlist, the contract is Isinding ;(g) or he maybe bound 
 to a trade. 
 
 2. He may enter into matrimony when arrived at 
 
 (a) Dods V. Wilson, Const. R. 448. 
 
 (b) Newl. on Contr. 2 ; 1 Eq. Cas. Ab. 286 
 
 (c) Rex V. Wigston, 3 B. & Cr. 484. 
 
 (d) Bac. Ab. Infancy, I. 3. 
 
 (e) Bull. N. P. 155 ; Wheaton v. East, 5 Yerg. 41. See Whitney v. 
 Dutch, 14 Mass. 457 ; Cannon v. Alsbury, 1 A. K. Maish. 76 ; Willard v. 
 Stone, 7 Cowen, 22. 
 
 (f) Keriton v. Elliott, 2 Bulstr. 69 ; 2 Eden's R. 72 : Harvey v. Owen, 
 4 Blackf. 240. 
 
 ig) U. S. V. Bainbridge, 1 Mason, 71 ; Commonwealth v. Murray, 4 
 Binn. 487. 
 
OF PROPERTY BY CONTRACT. 231 
 
 No. 592. Books, pan 2, tit. 4, chap. 2, sec. 2, } 2. No. 592. 
 
 the age of discretion, and before majority ; which, in 
 the male, is above fourteen years, and in the female 
 over twelve years. (a) 
 
 3. When an infant acts as an attorney, or trustee, 
 or executor, his acts will in general be binding, be- 
 cause the cestui que trust has a right, if he chooses, to 
 take the risk of the infant's competency. 
 
 4. Contracts for necessaries are considered for the 
 benefit of the infant, and consequently binding. 
 
 § 2. — Of persons who have understanding, but not freedom to 
 exercise their will. 
 
 592. In contemplation of law a married woman has 
 no separate existence from that of her husband, they 
 in law forming but one person, and in case of a dif- 
 ference of opinion, his is to govern. (&) She has there- 
 fore no independent capacity to contract. (c) When a 
 contract is made by her, for her advantage, her hus- 
 band may approve of it, and enforce its performance 
 in an action by himself and wife. (J) And when a 
 person enters intp an obligatian or bond to pay a mar- 
 ried woman a sum of money, the bond is not void but 
 voidable, and if she survive her husband, the contract 
 will be binding and survive to her.(e) A married 
 woman can make no contract to bind her husband, 
 unless he expressly authorized her,(/^^ or the law im- 
 plies such authority, as where the teontract is for 
 necessaries ;(g) but if she leaves him on account of her 
 adultery, he is no longer responsible, if the parties she 
 deals with have notice of the fact. (A) 
 
 A person in duress, we have seen in the preceding 
 
 {a) Co. Litt. 79 b.; 1 Roll. Ab. 341 ; Bac. Ab. Infancy, &c. (A).' 
 {!)) Litt. s. 28. 
 
 (c) Com. Dig. Pleader, (2 A 1) ; Id. Baron and Feme, (W). 
 
 (d) 2 M. & S. 396, n. (b) ; 2 Bl. Rep. 1236. 
 
 (e) Brown v. Langford, 3 Bibb, 497. 
 
 ( n Webster v. McGinnis, 5 Binn. 235. 
 
 (g) Cunningham v. Irwin, 7 S. & R. 247 : MoGahey v. Williams, 12 
 John. 293. 
 {h) Hunter v. Boucher, 3 Pick. 280. 
 
232 OF THINGS. 
 
 No. 593. Book 2, part 2, tit. 4, chap. 2, sec. 3. No. 597. 
 
 section, may avoid his contract, because he never gave 
 his free consent to it. 
 
 § 3. — Of persons who are unable to contract because it is against 
 the policy of law. 
 
 593. Trustees, executors, administrators, guardians, 
 attorneys, and all other pergons who act in a fiduciary 
 capacity, are incapable of becoming parties to con- 
 tracts personally, which they make for the benefit of 
 others, (a) 
 
 594. Alien enemies cannot in general contract with 
 American citizens, without the license of the govern- 
 ment either express or implied. (6) 
 
 595. By act of congress(c) it is provided that " no 
 sum exceeding one dollar shall be recovered from any 
 seaman or mariner (in the merchant service) by any 
 person, for any debt contracted during the time such 
 seaman or mariner shall actually belong to any ship 
 or vessel, until the voyage for which such seaman or 
 mariner engaged shall be ended." 
 
 596. A slave can make no contract whatever, ex- 
 cept one with his master respecting his manumission, 
 because, with this exception, he is considered not as a 
 person but as a thing.(5) 
 
 SECTION 3. OF THE THINGS WHICH MAY BE THE OBJECT OF 
 
 A CONTRACT. 
 
 597. No contract can exist unless there be some- 
 thing for its object. The object of a contract may 
 be a thing properly speaking, (res) which the obhgor 
 agrees to deliver; or an act {factum) which the 
 obligor binds himself to perform or not to do. Not 
 
 (a) Den v. Wright, 2 Halst. 175 ; Sheldon v. Sheldon, 13 John. 220 ; 
 Campbell v. Penn. Life Ins. Co. 2 Whart. 53 ; Jackson v. Walsh, 14 John. 
 407 ; 7 Watts, 387 ; 3 Binn. 54 ; 13 S. & R. 210 ; 5 Watts, 304. 
 
 (l) 1 Kent, Com. 163, 4th ed. 
 
 (c) 1 Story, Laws of U. S. ch. 56, s. 4, p. 109. 
 
 (d) Ketletas v. Fleet, 7 John. 324 ; The case of Tom, 5 John. 365 ; Wil- 
 hams V. Brown, 3 Bos. & PuU. 69 ; Hall v. MuUin, 5 Har. & John. 190. 
 See Catiche v The Circuit Court, 1 Mis. 608 ; Sally v. Beaty, 1 Bay, 260. 
 
OF PROPERTY BY CONTRACT. 233 
 
 ^o- 598. Book 2, part 2, tit. 4, chap. 2, sec. 3, J 1. No. 601. 
 
 only things, properly speaking, may be the object 
 of a contract, but simply their use or possession ; for 
 example, when a horse is hired, it is the use of the 
 horse rather than the animal which is the object of 
 the agreement; and when one gives a thing in pledge, 
 it is rather the possession of the thing than the thing 
 itself which is given. Other examples will suggest 
 themselves. 
 
 598. Things taken in their most extensive accepta- 
 tion, from which man may obtain some use, advantage 
 or benefit, may be the object of a contract. They 
 may be things present which the contracting party 
 has in possession, or they may be such as have only a 
 potential existence ; as the next year's corn, the next 
 cast of a fisherman's net, the good- will of a trade. (a) 
 
 599. But there is an exception to the general rule 
 that future things may lawfully be the object of a 
 contract, as an expectancy, or the right of the heir 
 apparent to an estate; this cannot be sold. (6) This 
 exception, however, does not apply to a marriage 
 settlement, (c) 
 
 600. But whether present or future, the thing which 
 is the object of the contract must be, 1, possible; 
 2, ascertained; 3, useful to one of the contracting 
 parties; 4, in commerce; 5, not forbidden by law. 
 
 § 1. — Impossible things cannot be the object of a contract. 
 
 601. An impossibility is that which cannot be done 
 agreeably to the order of nature. It is a maxim that 
 no one is bound to perform an impossibiUty ; a rim- 
 possible nul n'est tenu.{d) But it is proper to consider 
 what is the nature of an impossibility. It is either 
 
 (a) Dig. 18, 1, 8 ; Grantham v. Hawley, Hob. 132 ; Robinson v. McDon- 
 nell, 5 M. & S. 228 ; Robinson v. Mauldin, 11 Ala. 977. 
 
 (b) Bouv. L. D. Catching bargain ; Oareton v. Leighton, 3 Mer. 667; 
 Earl of Portmore v. Taylor, 4 Simons, R. 482 ; Gibson v. Jeyes, 6 Ves. 
 266 ; Peacock v. Evans, 16 Ves. 512. 
 
 (c) 1 Kent, Com. 468, note b, 4th ed. 
 (,i)l Swift's Dig. 93, 
 
234 OF THINGS. 
 
 No. 602. Book 2, part 2, tit. 4, chap. 2, sec. 3, § 2. No. 602. 
 
 I 
 
 absolute, when it applies to every one; or relative, 
 when it exists with regard to certain individuals only. 
 Again, the thing may be impossible at the tune of the 
 agreement, or it may become so afterward. 
 
 It is evident that if one promise to perform an act 
 absolutely impossible, the contract is void ; as a pro- 
 mise to deliver alive a hor^ which was dead at the 
 time of the agreement, when the death of the horse was 
 unknown to the person binding himself to deliver him. 
 
 But if the impossibility be only relative, if the pro- 
 mise could be performed by another, although the 
 promisor is incapable to perform it ; as, if a person 
 totally ignorant of navigation should undertake to 
 navigate a ship to Europe, or a blacksmith to make 
 a coat, the obligor would be bound. 
 
 When a contract depends upon an impossible con- 
 dition which is to be performed, it is null ; when the 
 condition is that the party shall not perform the 
 impossibility, then the contract is binding. 
 
 When such a contract depends upon a precedent 
 condition, which becomes impossible by the act of God; 
 as if an estate is to arise or a duty to commence on 
 such precedent condition, it can never have effect, (a) 
 
 § 2. — Things intermediate cannot be the subject of a contract. 
 
 602. To make a valid contract, the matter which is 
 to be the subject of it ought to be determinate, for if 
 the thing which is its object is so described that it 
 cannot be known, there is no contract; as if the 
 obligor had promised to do something, or to sell an 
 animal, such promise would be considered as void. 
 But if the object of the agreement can be ascertained, 
 although the individual thing be not mentioned, as a 
 horse, the contract is valid ; in that case the seller is 
 acquitted of his obligation by delivering a horse, and 
 he has the choice to say which horse he will deliver. (S) 
 
 (a) Co. Litt. 206 ; Roll. Ab. 420 ; Bac. Ab. Conditions, (M). 
 (S) Co. Litt. 145 a; Poth. Ob. n. 247. 
 
OF PROPERTY BY CONTRACT. 235 
 
 No. 603. Book 2, part 2, tit. 4, chap. 2, sec 3, j 3, 4. No. 604. 
 
 He has the right of election, that is, the right to 
 choose which of two or more things he will do; it 
 being a rule in cases of election that he who is to do 
 the first act, has the right of election. (a) 
 
 § 3. — Useless things cannot be the object of a contract. 
 
 603. According to the civilians, an agreement by 
 which the contracting party binds himself to perform 
 a perfectly useless thing, is void ; as, if he engages not 
 to go out of his house for a month. (&) The law will 
 not allow one man to alienate part of his liberty with- 
 out a just reason, nor another, by a vain caprice, to 
 cramp his freedom. Besides, the only remedy of the 
 obligee for a violation of an agreement is to recover 
 damages for its breach, and none could be recovered 
 where none had been sustained, as it is impossible to 
 fix any value on things which are entirely useless. 
 
 But it is not easy to say what is perfectly useless. 
 If I am bound to deliver to you a Greek book, which 
 you cannot read, and which you never will learn to 
 read, still it is useful, because you may sell it or 
 exchange it, and by that means derive some pecuniary 
 advantage ; and it is the pecuniary benefit which the 
 law considers, in order to judge whether the agreement 
 is obligatory or not. 
 
 § 4. — Things out of commerce cannot be the object of a contract. 
 
 604. In this country there are but few things 
 which cannot be bought and sold, or which are out of 
 commerce. We have seen, when considering the 
 nature of property, that some things in consequence 
 of their nature cannot be appropriated, such as the 
 air, the sea, rivers and other things, which belong to 
 no one, but of which every one has the use. 
 
 Sovereign rights, such as the right to vote, to 
 
 (a) Bac. Ab. Election, (B). 
 
 (4) Wolff, part. 3, ^^798 et 799. 
 
236 OF THINGS. 
 
 No. 605. Book 2, part 2, tit, 4, chap. 2, sec. 3, } 5. No. 608. 
 
 nomiiiate to office, or to hold an office, cannot be the " 
 object of a contract. («) 
 
 A freeman cannot be sold, or sell himself to others 
 as a slave. 
 
 There are some things which are used by the 
 public, which, though not in commerce, because they 
 are required for public use, and because no one has 
 authority to sell them, yet might be sold by special 
 power to be given by law for that purpose ; as, for 
 example, public roads which belong to the common- 
 wealth ; or they may be vacated, and the soil will in 
 general revert to the former owner. 
 
 § 5. — Of unlawful things as objects of a contract. 
 
 605. When a contract has for its object the per- 
 formance of an unlawful act, malum in se, as a cove- 
 nant to rob or kill a man, or to commit a breach 
 of the peace, it is absolutely null and void. (6) 
 
 606. A contract entered into in violation of a 
 statute, which declares it void, is absolutely so.{c) 
 
 607. An agreement against public policy will not 
 be enforced in a court of justice,(i) as an agreement 
 to prevent competition on a sale under an execution ;(e) 
 so also an agreement to reprint a literary work secured 
 by copy right to a third person, in violation of such 
 right.(/) 
 
 608. When a contract is to restrain a party gene- 
 rally from carrying on trade throughout the state, it 
 is unlawful and void ;(g) but if it is to restrain him 
 
 (a) Outon V. Eodes, 3 Marsh. 433 ; Carlton v. Whitcher, 6 N. H. Rep. 
 196 ; Cardigan v. Page, 6 N. H. Rep. 183 ; Tappan v. Brown, 9 Wend. 175. 
 (i) Shep. To. 163 ; Co. Litt. 206, b. 
 
 (c) Mabin v. Coulon, 4 Dall. 298 ; Biddis v. James, 6 Binn. 321 ; Seiden- 
 bender ». Charles, 4 S. & R. 159. 
 
 (d) Toler v. Armstrong, 4 Wash. C. C. 297; 11 Wheat. 258. 
 
 (e) Jones v. Caswell, 2 John. Cas. 29 ; Thompson v. Davies, 13 John. 
 112 ; 6 John. 194 ; 8 John. 444. 
 
 (/) Nicholas v. Ruggles, 3 Day, 145. 
 (g) Nobles V. Bates, 7 Cowen, 307. 
 
OF PROPERTY BY CONTRACT. 237 
 
 No. 609. Book 2, part 2, tit. 4, chap. 2, sec. 4. No. 611. 
 
 only in a particular place, it is not so, (a) because in the 
 first case the public lose the benefit of the party's 
 industry, but, in the latter, it may be exercised in 
 another place, and it is of no consequence to the 
 public whether a man pursues his business in one 
 place or in another. 
 
 609. A contract which has for its object champerty 
 or maintenance, is, in general, void. (6) And so is a 
 contract for future illegal cohabitation, though one 
 made for past cohabitation is valid.(c) 
 
 § 6. — Of choses in action, 
 
 610. In general choses in action cannot be the subject 
 of a contract at law, but they are assignable in equity; 
 to this, however, there are exceptions, as where the 
 chose in action is assignable by the law merchant, as 
 bills of exchange and promissory notes, or where it is 
 so assignable by virtue of some statutory provision. ((?) 
 
 SECTION 4. OP THE CONSIDERATION OF A CONTRACT. 
 
 611. A consideration is the motive or reason which 
 moves the contracting party to enter into a con- 
 tract ;(e) it is the cause or inducement of the agree- 
 ment: id quod inducit ad contrahendum. 
 
 A consideration of some sort or other, is so absolutely 
 requisite to the formation of a good contract, that a 
 nudum pactum, or an agreement to do or to pay any 
 thing on ooe side, without any compensation to the 
 other, is absolutely void in law.(/) But it must be 
 remembered that some contracts, owing to their form, 
 import a consideration, and it is not required to prove 
 
 (a) 7 Cowen, 307; Pierce v. Fuller, 8 Mass. 223: Perkins v. Lyman, 
 9 Mass. 522 ; Pyke v. Thomas, 4 Bibb. 486. 
 
 (b) Thurston v. Percival, 1 Pick. 415; Redman v. Sanders, 2 Dana, 70; 
 Spencer v. King, 5 Ham. 183 ; Whitaker v. Cone, 2 John. 58. 
 
 tc) Bac. Ab. Obligations, (E). 
 
 {d) White V. Buck, 7 B. Monr. 546 ; Lewis v. U. States, 1 Morr. 199; 
 Licey v. Licey, 7 Barr, 251. 
 (e) 2 Bl. Com, 443 ; Vin. Ab. Consideration A. 
 (/) Dr. & Stud. D. 2, c. 24. 
 
238 OF THINGS. 
 
 No. 612. Books, part 2, tit. 4, chap. 2, sec. 4,^ 1. No. 613. 
 
 one; as a bond, specialty or deed, and a bill of 
 exchange or promissory note. (a) 
 
 The consideration must be some benefit to the 
 party by whom the promise is made, or to a third 
 person at his instance ; or some detriment must be 
 sustained, at the instance of the party promising, by 
 the party in whose favor the promise is made,(6) as 
 forbearance to sue,(c) a mutual promise,((Z) the com- 
 promise of a doubtful claim. (e) 
 
 612. When considered as to their kinds, considera- 
 tions are good or valuable ; when as to their effect, 
 they are legal or illegal; when as to their nature, 
 they are moral or immoral ; when in respect to time, 
 they are executed or executory; they are also con- 
 current and continuing; divisible and indivisible. 
 
 § 1. — Of good considerations. 
 
 613. A good consideration is that which arises fi^om 
 relationship or the ties of blood, or natural love and 
 affection ; as when a man grants an estate to a near 
 relation, for that and for no other reason. Such a 
 consideration is sufficient to support a contract between 
 the parties, but not against the creditors of a grantor. 
 The statutes of 27 Eliz. c. 4, and 13 Eliz. c. 5, make 
 such voluntary conveyances void against creditors. 
 The principles of these statutes, which have indeed 
 been copied from the civil or Roman law,(/) though 
 they may not have been substantially reenacted, pre- 
 vail generally throughout the United States. (g) 
 
 (a) 2 Bl. Com. 445 ; Schuylkill Nav. Co. v. Harris, 5 W. & S. 28. 
 
 (b) Miller v. Drake, 1 Gaines, 45 ; Powell v. Brown, 3 John. 100 ; Town- 
 ley V. Sumrall, 2 Pet. 182 ; Seaman v. Seaman, 12 Wend. 381 ; Violett v. 
 Patton, 5 Cranch, 142 ; Gray v. Brackenridge, 2 Pennsyl. 75. 
 
 (c) Lonsdale v. Brown, 4 Wash. 0. 0. 148; Sidwell v. Evans, 1 Pennsyl. 
 385 ; Lemaster v. Burckhart, 2 Bibb, 30. 
 
 (d) Society in Troy v. Perry, 6 N. H. Kep. 164 ; Wightman v. Coates, 15 
 Mass. 1 ; Willard v. Stone, 7 Oowen, 29. 
 
 (e) Zane v. Zane, 6 Munf. 406 ; Hoge v. Hoge, 1 Watts, 216. 
 (/) Dig. 42, 8, 25, 11 ; 2 BeU's Com. 182. 
 
 {g) Bouv. L. D. Voluntary conveyances. 
 
OF PROPERTY BY CONTRACT. 239 
 
 No. 614. Book 2, part 2, tit. 4, chap. 2, see. 4, § 2, ait. 1, 2. No. 617. 
 
 § 2. — Of a valuable consideration. 
 
 614. A valuable consideration is where some benefit 
 arises to the party who makes a contract or promise, 
 or some loss or inconvenience to the other party. 
 This may be by the payment of money or of any 
 other thing, or the promise to pay money or to deliver 
 any other thing, or to perform or refrain from doing 
 any act whatever. (a) This amount is immaterial.(&) 
 
 615. Valuable considerations may be divided into 
 various classes : 1, such as arise from benefit and 
 injury; 2, forbearance; 3, mutual promises; 4, as- 
 signment of a chose in action ; 5, consideration moving 
 from third persons. 
 
 ^rt. 1. — Consideration arising from benefit or injury. 
 
 616. The essence of every valuable consideration 
 is, that it should create some benefit to the party 
 promising, or cause some loss, trouble, inconvenience 
 or prejudice to the party to whom the promise is 
 made.(c) The amount of benefit received, or incon- 
 venience suffered, is of no consequence. ((?) 
 
 .drt. 2. — Of forbearance. 
 
 617. By forbearance is understood the act by which 
 a creditor waits for the payment of the debt due to 
 him by the debtor, after it has become due ; in other 
 words, it is an agreement by a creditor with his 
 debtor, not to sue him, for some time, when he had 
 the right to sue immediately. This being a benefit 
 to one party, and an inconvenience to the other, is a 
 sufficient consideration. (e) 
 
 (a) Violett v. Patten, 5 Cranch, 142. 
 
 (S) Stewart v. The State, 2 Har. & Gill. 114; Knobb v. Lindsey, 5 Ham. 
 471. 
 
 (c) Com. Dig. Action on the ease upon assumpsit, B. 1 ; Bac. Ab. Agree- 
 ments, B 2. 
 
 id) Knight v. Eushworth, Cro. Eliz. 469 ; Brooks v. Ball, 18 John. 337 ; 
 Wilkinson v. Oliveira, 1 Bing. N. C. 490. 
 
 (e) Etting v. Vandelyn, 4 John. 237; 2 Nott & McOord, 133 ; 2 Binn 
 510. 
 
240 OF THINGS. 
 
 No, 618. Book 2, part 2, tit. 4, chap. 2, sec. 4, § 2, art. 3, 4, 5. No. 620. 
 
 To be valid, the forbearance must suspend the right 
 to sue until the time agreed upon has passed. («) It 
 must be of some right, but even a doubtful claim wiU 
 be sufficient for this purpose. (6) 
 
 Art. 3. — Mutual promises. 
 
 618. Mutual promises, made at the same time, and 
 in the same transtraction, are binding on both parties, 
 unless one be absolutely void, for then they are not 
 binding on either. But if a promise be voidable, as 
 in the case of an infant, the other is bound until the 
 infant shall avoid it.(c) 
 
 Art. 4. — When the assignment of a chose in action is a sufficient 
 consideration. 
 
 619. The assignment of a chose in action is a suffi- 
 cient consideration of a promise by the debtor to pay 
 the assignee ; if, for example, Paul assign Peter a 
 bond by mere endorsement, the legal title to sue will 
 remain in Paul, but the equitable right to receive the 
 money will be in Peter; now if the debtor make a 
 promise to Peter to pay him the money due on the 
 bond, the latter may recover the amount in action 
 upon this last promise. 
 
 Art. 5. — When the consideration moves from a third person. 
 
 620. In simple contracts, if one person make a pro- 
 mise to another, who furnished the consideration, for 
 the benefit of a third, although no consideration move 
 from such third person, it is binding, and either party 
 to whom it is made may maintain an action upon it, 
 provided there be a privity between the parties. ((^) 
 
 (a) Com. Dig. Action upon the case upon assumpsit, B 1 ; Dane's Ab. 
 Index, h. t. 
 {b\ Thornton v. Fairlie, 2 Moor, 397 ; Richardson v. Mellish, 2 Bing. 229. 
 
 (c) Com. Dig. Action upon the case upon assumpsit, B 14; Willard v. 
 Stone, 7 Cowen, 22 ; Boynton v. Kellogg, 3 Mass. 189. 
 
 (d) Ham. on Part. 79 ; Tipper v. Bicknell, 3 Bing. N. C. 710 ; Wilson t). 
 Coupland, 5 R. & Aid. 228. 
 
OF PROPERTY BY CONTRACT. 241 
 
 No. 621. Book 2, part 2, tit. 4, chap. 2, sec. 4, { 3, 4, 5. No. 623. 
 
 § 3. — Of legal considerations. 
 
 621. A legal consideration is one which is author- 
 ized by law ; these are always sufficient to support a 
 contract, (a) In contradistinction to a moral obligation, 
 such consideration is one which may be enforced at 
 law. 
 
 § 4. — Of illegal considerations. 
 
 622. An illegal consideration is one forbidden, or 
 which is against policy or good morals; a contract 
 founded on such a consideration cannot be enforced ; 
 as, where it is usurious, (&) or it is for future illicit 
 cohabitation, (c) or for lodgings let for the purpose of 
 prostitution, (d) or for printing a libel, (e) 
 
 If a contract grow immediately out of an immoral 
 or illegal act, or be connected with it, it is invalid. 
 But if it be wholly disconnected from the illegal act, 
 and founded on a new and independent consideration, 
 it may be enforced, though the illegal act was known 
 to the party to whom the promise was made, and he 
 was the contriver of it.(/) 
 
 § 5. — Of a consideration arising from a moral obligation. 
 
 623. A moral obligation is the duty which one owes 
 and which he ought to perform, but which he is not 
 legally bound to fulfil. A distinction must be made 
 between those which are founded on a natural right, 
 as the obligation to be charitable, to be grateful and 
 the like, and those which are supported by an antece- 
 dent good and valuable consideration; as, to pay a 
 debt barred by the act of limitation, or from which the 
 debtor is discharged by the bankrupt laws. The for- 
 
 (a) Cook V. Bradley, 7 Conn. 57. 
 (5) Solomon v. Jones, 3 Brev. 54. 
 
 (c) 3 Burr. 1568. 
 
 (d) 1 B. & P. 340 ; 1 Esp. R. 13. 
 
 (e) Poplett V. Stockdale, Chit, on Oontr. 217, Am ed. of 1827. 
 
 (/) Hodgson t). Temple, 5 Taunt, 181 ; Toler v. Armstrong, 4 Wash. C. C 
 297; S. C. 11 Wheat. 258. 
 
 Vol. I. 16 
 
242 OF THINGS. 
 
 No. 624. Book 2, part 2, tit. 4, chap. 3, sec. 4, § 6, 7, 8. No. 626. 
 
 mer are not a sufficient consideration to support a con- 
 tract, but the latter will.be sufficient. (a) 
 
 § 6 — Of an immoral consideration. 
 
 624. An immoral consideration is one contrary to 
 good morals, and is therefore invalid. It is not suffi- 
 cient to support a contract ; as if a man were to give 
 his obligation to a woman upon condition she would 
 live with him in adultery, the obligee could not re- 
 cover. (&) 
 
 § 7. — Of an executed consideration. 
 
 625. An executed consideration is one that is past; 
 as, for example, where the defendant gave the plain- 
 tiff a writing as follows: "In consideration of your 
 having endorsed the following mentioned notes, drawn 
 by A in your favor, we do hereby hold ourselves 
 accountable to you for them, in the same manner as 
 though said notes were drawn by us. "(c) A past or 
 executed consideration, is, in general, insufficient to 
 support a contract, (c?) but a promise to pay a sum of 
 money on a consideration executed, if it was induced 
 by the request of the defendant, or for some previous 
 duty, or if the debt be continuing at the time, or it is 
 barred by some rule of law, or some provision of a 
 statute, as the act of limitations, is sufficient to main- 
 tain an action. (e) 
 
 § 8. — Of an executory consideration. 
 
 626. An executory consideration, is one which is to 
 
 (a) Lonsdale v. Brown, 4 Wash. C. C. 86 ; S. 0. 4 Wash. 0. C. 148 ; 
 Wiling V. Peters, 12 S. & R. 177 ; Soouton «. Eislord, 7 John. 36 ; Maxim 
 V. Morse, 8 Mass. 127. 
 
 (h) 3 Burr, 1568. 
 
 (c) Bulkley v. Landon, 2 Conn. 404. 
 
 (d) Oomstock v. Smith, 7 John. 87; Livingston v. Rogers, 1 Gaines, 584; 
 Chaffee v. Thomas, 7 Oowen, 358. 
 
 (e) Lonsdale «. Brown, 4 Wash. C. C. 148 ; Bell v. Morrison, 1 Pet. 373 ; 
 Cook V. Bradley, 7 Conn. 67 ; Levy v. Cadet, 17 S. & R. 126 ; Searight v. 
 Craighead, 1 Pennsyl. 135 ; Mills v. Wyman, 8 Pick. 207 ; Carson v. Clark, 
 1 Scam. 113. 
 
OF PROPERTY BY CONTRACT. 243 
 
 No. 627. Book 2, part 2, tit. 4, chap. 2, sec. 4, § 9, 10, 11. No. 629. 
 
 be performed; as if a man promise to pay another 
 one hundred dollars, at a future time, for a horse. 
 Executory considerations, when the subject of them 
 is not unlawful, are always sufficient. 
 
 § 9. — Of concurrent considerations. 
 
 627. A concurrent consideration is one which is 
 given by one party, at the same time that another 
 is given to him ; such considerations are mutual and 
 binding; as mutual promises between a man and a 
 woman, both capable of marrying, that they will 
 marry each other. (a) In general the promises must 
 be reciprocally binding, but the promise of an infant 
 to marry another is sufficient. (6) 
 
 § 10. — Of continuing considerations. 
 
 628. A continuing consideration is one which in 
 point of time remains good and binding, although it 
 may have served before to support a contract ; as in 
 consideration that the defendant had become, and was, 
 the plaintiff's tenant, he undertook to manage the farm 
 in a husband-like manner. (c) Such a consideration is 
 in many cases sufficient to support a promise. 
 
 § 11. — Of divisible and indivisible considerations. 
 
 629. When a consideration consists of one entire 
 thing, it is said to be entire or indivisible; when of 
 several things, it is divisible. 
 
 It is a general rule, that when the consideration 
 consists of several distinct matters, each having a 
 fixed value, and some of such matters are illegal, the 
 contract is void pro tanto, but it is supported by what 
 is lawful. ((^) But if the entire consideration of a con- 
 tract is against law, the contract is void in toto.(e) 
 
 {a) Willard v. Stone, 7 Cowen, 22 ; Babcock v. Wilson, 5 Shepl. 372; 
 Whitehead v. Potter, 4 Ired. 257 ; Boyd v. Fox, 8 Misso. 574. 
 {b) 7 Cowen, 22. 
 
 (c) 1 Saund. 320, e. note (5). 
 
 (d) Prazier v. Thompson, 2 W. & S. 235. 
 
 e) Woodruff!;. Hinman, 11 Verm. 592; 2 W. & S. 235. 
 
244 OF THINGS. 
 
 No. 630. Book 2, part 2, tit. 4, chap. 3. 
 
 § 12. — Of the failure of the consideration. 
 
 630. Few men enter into a contract without a con- 
 sideration, but sometimes the consideration is only- 
 apparent and not real. It may be, first, that the 
 cause or motive which induced me to enter into an 
 engagement, may never have existed, or ceased to 
 exist at the time of making the contract ; secondly, 
 the consideration which induced me to contract, and- 
 which existed only in hope, may have failed; it is 
 evident then that my engagement was made without 
 consideration. 
 
 631. — 1. As an example of the first kind, may be 
 mentioned the case where a man who is heir at law of 
 another, finding a will made by the latter by which 
 he bequeathed a thousand dollars to a third person, 
 gives his obligation to such third person for that sum, 
 and, afterward discovers a codicil by which the legacy 
 is revoked, the obligor will not be bound to pay his 
 obligation, because the consideration has wholly failed; 
 for where one through a mistake acknowledges himself 
 under an obligation, which the law does not impose 
 upon him, he is not bound by it. (a) 
 
 632. — 2. An agreement to pay a sum of money for 
 a tract of land, when in fact the land was the obligor's 
 already, is an example of the second class ; another 
 example may be mentioned of a man who agreed to 
 purchase another's obligation, and it was afterward 
 discovered such obligation was forged. A total failure 
 of consideration and a want of consideration is the 
 same thing. 
 
 CHAPTER m.— OF THE EFFECT OF CONTRACTS. 
 
 633. The immediate efiect of a contract is to 
 produce a right in favor of one of the contracting 
 
 (a) See Warder v. Tucker, 7 Mass. 449 ; May v. Coffin, 4 Mass. 347 ; 
 McDonald v- Neilson, 2 Cowen, 139 ; Freeman v. Baynton, 7 Mass. 483 ; 
 Poth. Ob. part 1, c. 1, a. 3, ^ 8; Addis, on Contr. 25. 
 
OF PROPERTY BY CONTRACT. 245 
 
 No. 634. Book2, part2, tit. 4, chap. 3, sec. 1. No. 634 
 
 parties, and to impose a corresponding obligation or 
 duty upqn the other. These rights and duties vary 
 in infinitum; they depend upon the nature and the 
 object of the contract, and on the clauses and condi- 
 tions which the parties have agreed upon. But still 
 there are numerous effects which are common to all 
 contracts, whatever may be their nature, or whatever 
 clauses may have been agreed upon; these will be 
 considered in the first section. In the second and 
 third, the effects common to certain kinds of agree- 
 ments will be examined ; as the agreement to deliver 
 and the obligation to do or not to do a particular 
 thing. The question of damages will form the sub- 
 ject of the fourth section. The fifth will treat of the 
 construction of agreements ; and the sixth of agree- 
 ments as affecting third persons. 
 
 SECTION 1. — OF GENERAL RULES AS TO THE EFFECT OF 
 CONTRACTS. 
 
 634. The first and the principal effect of all con- 
 tracts is to confer on each of the contracting parties 
 the reciprocal right to constrain the other to execute 
 them, to bind the parties and to oblige them as firmly 
 as the law would have done. The law sanctions 
 agreements, it lends them its aid when made con- 
 formably to its requirements, and raises them to the 
 dignity of laws between the parties. But although 
 they are laws, they are but private laws, always 
 within the power of the contracting parties, and they 
 may be revoked, changed or modified at their pleasure, 
 while they do not affect the rights of third persons. 
 When the contract confers a right of that kind on a 
 stranger, it cannot be changed by the contracting 
 parties ; for example, where a trust is created for the 
 benefit of a third person, unknown to him, he may 
 subsequently enforce it. (a) 
 
 (a) Berley v. Taylor, 5 HiU, 577. 
 
246 OF THINGS. 
 
 No, 635. Book 2, part 2, tit. 4, chap. 3, Bee. 1. No. 637. 
 
 635. Another effect of a contract is, that all matters 
 of equity and of usage are to be taken as a part of 
 the contract, according to its nature. In considering 
 the nature or substance of a contract, three things 
 may be distinguished : 1, what is of its essence and 
 substance ; 2, what belongs to its nature ; 3, what is 
 accidental to it. 
 
 636. — 1. Things which form the essence of the 
 contract are those without which it cannot subsist, a 
 want of one of which renders the contract null, or 
 changes it to another contract ; for example, it is of 
 the essence of a sale that there be a thing which is 
 the subject matter of the contract, a price in money, 
 and the consent of the parties as to the thing and 
 as to the price : res, pradium, et consensus. If one of 
 these three is wanting, it is evident that there is no 
 contract, or that the agreement is not a sale. 
 
 1st. There is no contract if the consent has been 
 given in mistake or obtauied by fraud, because then 
 there is no agreement. 
 
 2dly. There is no contract if the thing contracted 
 for was not in existence; as if I buy your house, and, 
 at the time, it had been destroyed by fire ; or your 
 horse, and, at the time, he was dead. 
 
 3dly. There is no consideration if I sell you a clock, 
 which I received from my father as a legacy, for the 
 price my father gave for it, and it turns out that my 
 father had received it from his uncle as a gift. 
 
 4thly. There is no price if I sell you a piece of 
 personal property for another which you sell to me ; 
 in that case there is no contract of sale, because it is 
 of the essence of that contract that there should be a 
 price paid in money ; the contract is an exchange or 
 barter. In the first three cases there is no contract 
 whatever, and in the last a difierent one. 
 
 637. — 2. The things which form the nature of the 
 contract, are those which, without being of its essence, 
 are nevertheless a part of it, although the contracting 
 parties have not said any thing about them ; these are 
 
OF PROPERTY BY CONTRACT. 247 
 
 No. 638. Book 2, part 2, tit. 4, chap. 3, sec 2. No. 639. 
 
 things understood to exist at the time, namely, usage 
 and equity. (a) But such usage or custom must not 
 be opposed to law. (6) And it will have no effect, if 
 the parties haA'^e expressly so agreed. (c) 
 
 The difference between those things which are of 
 the essence, and those which are of the nature, of the 
 contract, is this : the contract cannot subsist if one 
 thing which is of its essence be wanting, as a price in 
 a sale ; but it may be good although one thing par- 
 taking of its nature be absent; as in the case of a 
 loan, it is of its nature that the thing loaned should 
 be at the risk of the lender, but the parties may agree 
 that it shall be at the risk of the borrower, and the 
 contract remains the same. 
 
 638. — 3. The things which are accidental to the 
 contract, are those which not being understood, either 
 in law, usage, or equity, are not mentioned in a 
 special clause in the agreement ; for example, credit 
 being given on a sale, is accidental to that contract ; 
 the price must be paid in cash where nothing is said 
 about it.{d) 
 
 SECTION 2. OF THE OBLIGATION TO DELIVER THE THING 
 
 CONTRACTED FOR. 
 
 639. In general, when by the agreement the con- 
 tracting party obligates himself to deliver the thing 
 which is the object of the contract, without any specific 
 designation of the thing, as to deliver a hundred bushels 
 of corn, or to deliver a horse, or to pay a sum of 
 money, he is bound to deliver or to pay these, not- 
 withstanding he may have set such aside for the 
 purpose of completing his engagement, and they have 
 
 (a) Shultz V. Dickey, 5 Binn. 287 ; Lodwioks v. Ohio Ins. Co., 5 Hamm. 
 436 ; Sewall v. Gibbs, 1 Hali; 612 ; Barber v. Brace, 3 Conn. 9 ; United 
 States V. Arredondo, 6 Pet. 715 ; Sampson v. Gazzain, 6 Porter, 123. 
 
 (J) Scheiffeling v. Harvey, Anth. 56. 
 
 (c) Wayne v: Steamboat General Pike, 16 Ohio, 421. 
 
 [d) New York Firemen's Ins. Co. v. De Wolf, 2 Cowen, 56. 
 
248 OF THINGS. 
 
 No. 640. Book 2, part 2, tit. 4, chap. 3, sec. 3. No. 641. 
 
 been destroyed; for, in these cases, the rule is res 
 perit domino. 
 
 And, for the same reason, the contractor may sell 
 them, and the purchaser will have a good title, or he 
 may bequeath them by his will, and they will be no 
 further liable for the contract than to be subject to the 
 payment of his debts. 
 
 640. But when the parties have agreed upon a 
 specific article, the one loses and the other acquires 
 the title to it ; as if A sell a particular horse to B, or 
 one hundred bushels of corn, which have been mea- 
 sured, and separated from the rest of the seller's corn, 
 the title passes, so as to render the purchaser liable 
 for all losses occasioned by the destruction of the 
 property, subject, however, to the right of the seller 
 to demand payment before he parts with it. (a) 
 
 SECTION 3. OF THE OBLIGATION TO DO OR NOT TO DO. 
 
 641. Man may engage his services and his actions 
 in every thing which is not forbidden by law, public 
 order, or good morals; but the obligations arising 
 from such engagements differ from obligations to 
 deliver property, as to their effect. If I have pro- 
 mised for a valuable consideration to deliver you my 
 horse, you may compel me to give up the possession ; 
 but if I have agreed to serve you as a clerk, no 
 power on earth can force me to act as your clerk ; or 
 if I have done what I promised I would not do, the 
 judge may punish me, but there is no power to recall 
 the past. 
 
 In these cases the creditor may recover damages, 
 and these the law presumes are a full satisfaction for 
 the breach of niy agreement. 
 
 There are some cases when a court of equity will 
 decree a specific performance, and consider that done 
 
 (a) Simmons v. Swift, 5 B. & 0. 862 ; Potter v. Coward, 1 Meigs, 22 ; 
 M'Coy V. Moss, 5 Port. 88 ; Smyth v. Craig, 3 W. & S. 14 ; Willis v. Wil- 
 lis, 6 Dana, 48 ; People v. Haynes, 14 Wend. 546 ; Howland v. Harris, 4 
 Mason, 497. 
 
OF PROPERTY BY CONTRACT. 249 
 
 No. 642. Book 2, part 2, tit. 4, chap. 3, sec. 4, § 1, art. 1. No. 646. 
 
 which it has decreed should be done. But this juris- 
 diction will not be exercised where there is an ade- 
 quate remedy at law. (a) 
 
 642. If the thing the obligor has bound himself not 
 to do, is a thing that can be removed, as the erection 
 of a dam to the injury of the mill of the obligee, he 
 may be compelled to remove it. 
 
 SECTION 4. OP DAMAGES FOB THE BREACH OP A CONTRACT. 
 
 643. The contractor is bound not only to fulfil all 
 the engagements in his agreement, but, as we have 
 seen, is liable for all the additional obligations which 
 equity, usage and the law attach to his contract, 
 according to its nature. The principal of these is to 
 pay damages which result from his default. 
 
 644. By damages is understood the indemnity given 
 by law to be recovered from the wrong-doer by a 
 person who has sustained an injury, either in his 
 person, property, or relative rights, in consequence 
 of the acts of another. 
 
 § 1. — Of the causes and faults for which damages may be 
 recovered. 
 
 645. Damages have accrued to the obligee when- 
 ever the contract has not been fulfilled at the time and 
 place appointed. The want of execution and delay 
 arise from three causes, the fraud or want of good faith 
 in the obligor, his fault, and finally, a foreign cause 
 beyond his control, commonly called the act of God, 
 or inevitable accident arising from physical causes. 
 
 ^rt. 1. — Cases of fraud and want of good faith. 
 
 646. Whenever the obligor, with a design to injure 
 the obligee, has not executed his contract, there is a 
 fraud. There is a want of good faith, when, without 
 a design to wrong the obhgee, the obligor fails in his 
 engagements for the purpose of getting an advantage 
 to himself; as, when a contractor abandons a contract 
 
 (a) 2 Story on Bq. § 718 ; Eden on Inj. c. 3, p. 27. 
 
250 OF THINGS. 
 
 No. 647. Book 2, part 2, tit. 4, chap. 3, sec. 4,5 1, art. 2. No. 649. 
 
 which he has made to get a more profitable one;, or 
 when he neglects the affairs of another,, which he- has 
 undertaken to perform, to attend to -his own ; or when 
 he fails in his engagements by the omission of that at- 
 tention which the most careless take of their own own 
 affairs ; as if he leave in an open exposed place a thing 
 which could be easily carried away or injured, which 
 had been confided to him, and loss arises in consequence 
 of it. This is indeed a species of fraud, to prefer know- 
 ingly our own interest to the accomplishment of our 
 duty ; or not to do those acts toward others which the 
 most careless and the least diligent perform ; magna 
 culpa dolus est. {a) 
 
 647. When there is either fraud or want of good 
 faith, the least punishment which can be inflicted on 
 the delinquent party, is to make him repair the injury 
 he has done, by the payment of damages. 
 
 648. No one is allowed to stipulate that he shall not 
 be responsible for fraud, or for his wilful neglect;.(6) 
 But by a special contract a party may limit the extent 
 of his responsibility for the delivery of goods delivered 
 to him to be carried. (c) 
 
 Art, 2. — Of foreign causes of damages, beyond the party's control. 
 
 649. When damages arise from a foreign cause 
 beyond the party's control, no one is bound, in gene- 
 ral, to repair the injury : casum nemo prcestai.{d) But 
 to this general rule there are several exceptions. 
 
 1st. When one of the parties has agreed specially to 
 answer for fortuitous events or for the act of God.(e) 
 
 2dly. When the fortuitous event has been preceded 
 by some fault on his part, without which the loss 
 would not have occurred ; as, if a man borrow a 
 
 (a) Dig. 50, 16, 226. MoCracken v. Hair, 2 Speers, 256; Powers v. 
 Mitchell, 3 Will. 545. 
 
 {b) Camden, etc. Rail Road Co. v. Burke, 13 Wend. 611 ; Beckman v. 
 Shouse, 5 Rawle, 179. 
 
 (c) Bingham v. Rogers, 6 W. & S. 495. 
 
 {d) Day v. Ridley, 16 Verm. 48. 
 
 (e) Gaither v. Barnet, 2 Brev. 488. 
 
OF PROPERTY BY CONTRACT. 251 
 
 No. 650. Book 2, part 2, tit. 4, chap. 3, sec. 4, J 2. No. 651. 
 
 horse to go to one place, and goes to another, in con- 
 sequence of which the loss happens. (a) 
 
 3dly. When the ohligor is in default in completing 
 his contract; as, if a loss happen to the thing bor- 
 rowed after the time fixed for its return. (&) But to 
 this liability there is a limitation in the case, where 
 the thing would have been equally lost in the hands 
 of the obligee ; for in that event it is not the fault of 
 the obligor, and the rule res perit domino applies. 
 
 In these cases the burden of proof lies upon the 
 party who has neglected to execute his contract, to 
 show that he was justified by a foreign cause. (c) 
 
 § 2. — Of damages arising from the mere default of the 
 contractor. 
 
 650. When a party is in default, or in morA, by 
 non-fulfilment of his agreement, he is immediately 
 responsible in damages to the other party. In order 
 to ascertain whether a debtor is in default, we must 
 distinguish whether the obligation was pure and 
 simple, which is one contracted without condition, or 
 whether when thus contracted, the condition has 
 been perforlned. 
 
 The execution of a pure or simple obligation may 
 be required immediately without any delay ■,{(!) that of 
 an obligation payable at a future day, cannot be 
 required until the time has expired, that is, until the 
 time fixed for the payment has arrived, and the debtor 
 has the whole day to fulfil his engagement. 
 
 A conditional obligation is not due until the condi- 
 tion has been fulfilled ; after that it classes among the 
 pure obligations. 
 
 651. It is frequently requisite to make a demand 
 
 (a) ToUenere v. Fuller, 1 Eep. Cons. Ct. 117. 
 
 (b) Wheelock v. Wheelwright, 5 Mass. 104 ; Homer v. Thwing, 3 Pick. 
 492 ; Schenck v. Strong, 1 South. 87 ; McNeilly v. Brooks, 1 Yerg. 75. 
 
 (c) Murphy v. Staton, 3 Munf. 239 ; Ewart v. Street, 2 Bailey, 157 ; Bell 
 n. Reed, 4 Binn. 127. 
 
 {d) Bank of Columbia v. Hagner, 1 Pet. 455 ; 4 Rand. 346 ; 8 John 374 • 
 5 Cowen, 516 ; 1 Con. 404 ; 1 Blaokf. 233 ; 1 Bibb, 166. 
 
252 OF THINGS. 
 
 No. 652. Book 2, parts, tit. 4, chap. 3, sec. 4, 5 3, art. 1. No. 654. 
 
 in order to put the debtor in default ; this will depend 
 upon the express or implied stipulations of the parties. 
 In the sale of property, for example, to be paid for on 
 delivery, a demand must be made before the com- 
 mencement of an action for the non-delivery. (a) On 
 the same principles, a request on a general promise to 
 marry is requisite, unless the party has put himself in 
 a situation that it is out of his power, as when he has 
 married another. (&) 
 
 § 3. — Of the extent of the damages, and how they are ascertained. 
 
 652. Damages may be ascertained and the amount 
 fixed, 1, by the law; 2, by the agreement; and 3, by 
 the jury. 
 
 Jlrt. 1. — Of damages fixed by law. 
 
 653. When the obligation is for the payment of a 
 sum of money, the damages for the non-payment when 
 due are fixed by law, and are simply for the lawful 
 interest from the time when the money became due. 
 
 In some cases this is but a poor compensation ; for 
 want of the money the creditor may have been com- 
 pelled to have recourse to merciless usurers ; he may 
 have had to sustain an action for a debt he owed, and 
 been compelled to pay costs, have had his property 
 sacrificed under an execution, etc. 
 
 But as it would be almost impossible to ascertain the 
 true extent of damages in these cases, the law considers 
 them too remote. (c) On the other hand, it does not 
 require the creditor to prove that he has actually 
 sustained any loss whatever. 
 
 654. In a class of cases the law fixes the damages 
 beyond the simple legal interest. When a bill of 
 exchange is protested for non-acceptance or non- 
 payment, the holder may recover, in addition to the 
 
 (a) Rawson v. Johnson, 1 East, 204 ; Bach 11. Owen, 5 T. R. 409 ; Hos- 
 mer v. Clark, 2 Greenl. 308. 
 
 (i) 1 Chit. Pr. 57, note (a) ; 2 C. & P. 634 ; 2 D. & R. 55. 
 
 (c) Harwood v. Tappan, 2 Speers, 536 ; Porter v. Woods, 8 Hump. 56. 
 
OF PROPERTY BY CONTRACT. 253 
 
 No. 655. Book 2, part 2, tit. 4, chup. 3, sec. 4, §3, art. 2, 3. No. 656. 
 
 interest, damages for exchange and reexchange. The 
 amount of these vary in the different states of the 
 Union and in foreign conn tries, (a) 
 
 Art. 2. — Of damages ascertained by the acts of the parties. 
 
 655. The parties to a contract having entered into 
 an agreement for the performance or the non-perform- 
 ance of certain acts, the violation of which would be an 
 injury, may agree that the damages shall be estimated 
 at a certain sum, which is called liquidated damages. 
 In such cases this shall be the damages paid. Liqui- 
 dated damages differ from a penalty in this, that the 
 courts will relieve from a penalty because it is a 
 forfeiture. (6) 
 
 jlrt. 3. — Damages how ascertained by the jury. 
 
 656. Where the law has not fixed the damages, and 
 the parties have not agreed as to the amount, this, 
 being a matter of fact, must be ascertained by the jury, 
 who are in such cases the sole judges ; but still there 
 are some general rules to which they are subject. 
 
 1st. The delinquent shall answer for all the injury 
 which results from the immediate and direct breach 
 of his engagement, but not for any remote conse- 
 quences, (c) 
 
 2dly. In cases of an eviction, on a covenant of 
 seisin and warranty, the rule seems to be to allow the 
 consideration money, with interest and costs. (d) 
 
 3dly. When the obligee is bound to deliver goods 
 on a certain day and fails to do so, the amount of the 
 damages is the value of the goods on that day.(e) 
 
 (a) See Bouv. L. D. h. t. 
 
 (6) 1 H. Bl. 232. The civil law appears to agree with these piinciples. 
 Inst. 3, 16, 7 ; Toull. liv. 3, n. 809 ; Civil Code of Lo. art. 1928, n. 5. 
 
 (c) Hunt V. D'Oreal, Dudley, S. C. Rep. 180 ; Fagan v. Newton, 1 
 Dev. 20. 
 
 (d) Pearson v. Davis, 1 MoMulIin, 37; Earle v. Middleton, Cheves, 4 
 Dana, 251 ; Logan v. Moulder, 1 Pike, 313. But in Massachusetts, the 
 measure of damages js the value of the land at the time of eviction, with 
 interest. Begelow v. Jones, 4 Mass. 512. 
 
 (e) Davis v. Shields, 24 Wend. 322 ; Hanna v. Harter, 2 Pike, 397 ; Ward 
 V. Burr, 5 Blackf. 116 ; Smethurst v. Woolston, 5 Watts & S. 106. 
 
254 OF THINGS. 
 
 No. 657. Book 2, part 2, tit. 4, chap. 3, see. 5. No. 659. 
 
 4thly. When damages have been sustained in con- 
 sequence of, the acts of a common carrier, it frequently 
 becomes a question whether the value of the goods at 
 the place of embarkation, or the port of destination, is 
 the rule to estabhsh the damages ascertained. It has 
 been ruled that the value at the port of destination is 
 the proper criterion, (a) 
 
 657. But there are many cases where the amount 
 of damages must be estimated by circumstances ; for 
 example, the damages resulting from a breach of pro- 
 mise of marriage, and this must be left entirely to the 
 consideration of the jury. In case of an abuse of 
 power, the court will remedy the evil, when they find 
 excessive damages, by granting a new trial. 
 
 SECTION 5. — OF THE CONSTRUCTION OF AaREEMENTS. 
 
 658. Construction has been briefly defined to be the 
 art to discover the thoughts which are expressed in 
 words or writings ; or it is the most probable explana- 
 tion of what appears obscure or ambiguous. (6) 
 
 659. Several causes force us to have recourse to 
 construction, or, as the civilians call it,iinterpretation : 
 1, the imperfection of language, and the ignorance or 
 neglect of persons who write agreements, which is 
 unhappily an inexhaustible source of obscurity and 
 ambiguity, of which men sometimes unjustly, but 
 at other times rightly, take advantage ; 2, agreements 
 do not bind merely by what they contain, but they are 
 to be accompanied by the equity, and the usage or the 
 law which relate to them. This section will therefore 
 be divided into, 1, the consideration of the ambiguities 
 in agreements themselves, whether verbal or written ; 
 and 2, in the interpretation which consists in giving 
 to obligations the necessary consequences of agree- 
 ments, although they be not expressed. 
 
 (a) Gillingham v. Dempsey, 12 S. & R. 186 ; 8 John. 213 : 10 John. 1 ; 
 14 John. 170 ; 15 John. 24. 
 (J) 1 Pow. on Contr. 370. 
 
OF PROPERTY BY CONTRACT. 255 
 
 No. 660. Book 2, part 2, tit. 4, chap. 3, sec. 5, } 1. No. 661. 
 
 § 1. — Of the construction of obscure or ambiguous agreements. 
 
 660. The doctrine of interpretation or construction 
 belongs properly to logic, which teaches us how to 
 direct our minds in search of truth. The rules of 
 construction are in fact the means offered to discover 
 the true sense of agreements, which are either obscure 
 or ambiguous. These rules are the fruits of the 
 experience of ages ; they are remarkably clear in the 
 Roman law, and from this source all other systems 
 have drawn. 
 
 661. In considering the subject of the construction 
 of laws, many of the rules which apply to contracts, 
 and wills or testaments, are to be found. Under the 
 present head will be examined the rules which relate 
 to contracts generally, and to wills. 
 
 1st Rule. When a construction is to be put on a 
 writing, it is to bear that which the words in their 
 literal and natural meaning signify, and, if that be 
 clear of doubt, no other construction can be given. (a) 
 
 2d Rule. As agreements are to be formed by the 
 mutual consent of the contracting parties, each one is 
 bound to explain himself clearly, one what he asks, 
 the other what he promises. It is then by discovering 
 their common intention, that what is obscure or 
 ambiguous in the agreement is to be explained. 
 
 3d Rule. The common intention of the parties, 
 what both understood, is to be preferred to the gram- 
 matical sense of the terms. It is a maxim of law 
 that mda grammatica non vitiat chart am. {h) 
 
 4th Rule. When a clause is capable of two signifi- 
 cations, it should be understood in that which will 
 have some operation, rather than in another in which 
 it will have none.(c) 
 
 5th Rule. One clause in an agreement ought to be 
 
 (a) Hawes v. Smith, 3 Fairf. 429. 
 
 \h) Co. Litt. 223. 
 
 (c) Archibald v. Thomas, 3 Oowen, 284. 
 
256 OF THINGS. 
 
 No. 661. Book 2, pan 2, tit. 4, chap. 3, sec. 5, § 1. No. 661. 
 
 SO construed with other clauses that the whole may 
 stand if possible. And when several instruments in 
 writing are made at the same time, between the -same 
 parties, relating to the same subjects, they constitute 
 but one agreement ; and the court will presume they 
 were executed in the order best calculated to effect 
 the intent of the parties. (a) 
 
 6th Rule, When words taken literally lead to a 
 manifest absurdity, they will be construed if possible 
 to avoid it. For example : 1, when words are mani- 
 festly inconsistent with the declared purpose and 
 object of the contract, they will be rejected ; as, if, in 
 a contract of sale, the price of the thing i should be 
 admitted to have been received, and the seller should 
 promise not to deliver the commodity. (&) 2. When 
 words are omitted so as to defeat the effect of the 
 contract, they will be supplied by the obvious sense 
 and inference of the context; as, if the contract stated 
 that the seller had promised to sell to the buyer a 
 horse, for the consideration of one hundred dollars, 
 and for the purpose of completing the contract, the 
 seller had delivered the horse to the buyer, and the 
 buyer promised to pay him " one hundred for the 
 same," the word dollars would be supplied. (c) 
 
 7th Rule. When a peculiar meaning has been 
 stamped upon words by the usage of a particular 
 trade or a particular place, in which the contract is 
 made, such technical and peculiar meaning will 
 prevail, ((f) 
 
 8th Rule. However general the terms in which an 
 agreement is conceived may be, it comprises only 
 those things respecting which it appears that the con- 
 
 (a) Newall v. Wright, 3 Mass. 138 ; Hunt v. Livennore, 5 Pick, 395 ; 
 Rogers v. Kneeland, 13 Wend. 114. 
 (h) Simpson v. Vaughan, 2 Alk. 32. 
 
 (c) Booth V. Wallace, 2 Root, 247. See Boyd v. Brotherson, 10 Wend. 
 93 ; Conner v. Routh, 7 How. Miss. 176 ; Finley v. Acock, 9 Miss. 841. 
 
 (d) EUmaker v. EUmaker, 4 Watts, 89 ; 4 East, 135 : 7 Taunt. 272; 1 
 Stark R. 504. 
 
OF PROPERTY BY CONTRACT. 257 
 
 No. 661. Book 2, part 2, tit. 4, chap. 3, sec. 6, § 1. No. 661. 
 
 tracting parties proposed to contract, and not others 
 of which they never thought. 
 
 9th Rule. When the object of the agreement is to 
 include universally things of a given nature, the gene- 
 ral description will include all the particular articles, 
 although they may not have been in the knowledge 
 or thoughts of the parties; as where a son inherited a 
 large estate from his mother, buried her with her 
 jewels, worth two thousand dollars, and subsequently 
 made a sale of all he inherited for thirty thousand dol- 
 lars ; after this, a thief broke into the grave and stole 
 the jewels, which, after his conviction, were left with 
 the clerk of the court, to be delivered to the owner. 
 The son claimed, and so did the purchaser of the in- 
 heritance: it was held that the jewels, although buried 
 with the mother, belonged to the son, and that they 
 passed to the purchaser by a sale of the whole inhe- 
 ritance, (a) 
 
 10th Rule. What is at the end of a phrase, com- 
 monly refers to the whole phrase, and not only to 
 what immediately precedes it, provided it agrees in 
 gender and number with the whole phrase. For in- 
 stance, if in the contract of a sale of a farm, it is said 
 to be sold with all the corn, small grain, fruits, and 
 cider, that have been got this year, the terms that have 
 been got this year, refer to the whole phrase, and not to 
 the cider only; it would have been otherwise if it had 
 been said all the cider that has been got this year, for 
 the expression is in the singular, and refers to the 
 cider and not to the rest of the phrase, with which it 
 does not agree in number. 
 
 11th Rule. A deed is to be taken most strongly 
 against the agent or contractor, and in favor of the 
 other party. Verba fortius accipientur contra proferen- 
 tem. As if a tenant in fee grants to any one an estate 
 for life, generally, it shall be construed to be an estate 
 for the life of the grantee. (6) 
 
 (a) 6 Eobins. Lo. R. 488. (5) Plowd. 156 ; 2 Bl. Com. 380. ^ 
 
 Vol. I. 17 
 
258 OF THINGS. 
 
 No. 662. Book 2, part 2, tit. 4, chap. 3, see. 5, § 8. No. 662. 
 
 12th Rule. If the words will bear two senses, one 
 agreeable to, and the other against law, that sense 
 shall be preferred which makes the contract lawful; (a) 
 as if a tenant in tail makes a lease to have and to hold 
 during life generally, it shall be construed a lease for 
 his own life only, for that stands with the law ; and 
 not a lease for the life of the lessee, which is beyond 
 his power to grant. (6) 
 
 13th Rule. If there be two clauses in a deed, so 
 totally repugnant to each other that they cannot stand 
 together, the first shall be received and the last rejected. 
 In this a deed differs from a will, for, in the latter, if 
 there be two such repugnant clauses, the latter shall 
 stand, (c) This is owing to the nature of the two 
 instruments, for a first deed and last will are always 
 most available in law. But still if they can be recon- 
 ciled, it is the duty of the courts to do so.(d) 
 
 14th Rule. Wills are expounded with more libe- 
 rality than contracts, for various reasons ; in the first 
 place, the devisor is frequently without assistance 
 when making his will ; secondly, in giving words 
 another than the usual meaning, the testator runs the 
 risk of not being understood, but he cannot by that 
 deceive any one, nor prejudice the vested rights of 
 another. (e) The intention of the testator must be 
 gathered from the whole will, and when discovered it 
 is to govern in its construction, if not inconsistent 
 with rules of law, though technical words have not 
 been used.(/) 
 
 § 2. — Of tlie construction to determine the natural consequences of 
 an agreement, although not expressed in the writing. 
 
 662. Agreements are obligatory not only by what 
 
 (a) Co. Litt. 42. 
 
 (b) 2 Bl. Com. 280. 
 
 (c) Moore v. Dudley, 2 Stew. 170 ; Boraley v. Lammont, 3 H. & J. 4. 
 
 (d) 2 Bl. Com. 381. 
 
 (e) 2 Bl. Com. 381 ; Dig. 50, 17, 12. 
 
 (/) Smith V. Bell, 6 Pet. 68 ; Richardson v. Noyes, 2 Mass. 56 ; Ingliss 
 V. Trustees, 3 Pet. 113. 
 
OF PROPERTY BY CONTRACT. 259 
 
 No. 663. Book 2, part 2, tit. 4, chap. 3, sec. 5, 4 2. No. 666. 
 
 is expressed, but by all the consequences which arise 
 from equity, usage, and the law, according to their 
 nature. Thus there are three sources whence the 
 accessory obligations arise and become connected with 
 the principal: equity, usage, and law. 
 
 1. How far equity is to be considered in the construction of contracts. 
 
 663. Equity ought to accompany all the acts of 
 men ; it ought to be their main spring : it ought par- 
 ticularly to rule in agreements made by a man with 
 his fellows, not only in the agreement itself, but in all 
 the negotiations which have taken place between the 
 parties, though in general these will not be considered, 
 when the contract has been reduced to writing, unless 
 there has been a fraud. 
 
 664. The following is an example of equity which 
 attends a contract. I suggest to a painter'to paint a 
 certain picture, and I agree that I will pay him a cer- 
 tain sum if I like it. After the work is done, I decline 
 taking it, on the allegation I do not like it, without 
 any sufficient reason. The painter has a right to recover 
 from me the price, upon the ground of equity. I am 
 bound to approve of it if it . be well done, and it will 
 not be left to my whim to decide unjustly to the injury 
 of another. (a) 
 
 665. It is on equity that the rules of law are found- 
 ed, and which are only a development of the great 
 Christian precept, do not do to others what you wish 
 they should not do to you. But although equity is 
 always a supplement to the law, we must not forget the 
 principal rule of construction that agreements are to be 
 construed according to the plain meaning of words, and 
 not in accordance with an imaginary equity. 
 
 2. Of usage in the construction of agreements. 
 
 666. When a usage is fully established it is the law 
 of the trade, and the presumption is that the parties 
 
 (a) See Guier v. Page, 4 S. & K. 1 ; 20 Wend. 431; 2 Campb. 532. 
 
260 OF THINGS. 
 
 No. 667. BooH 2, part 2, tit. 4, chap. 3, sec. 5, § 2. No. 669. 
 
 intended to conform to it, when they have been silent 
 on the subject, (a) Its oflftce is to interpret the other- 
 wise indeterminate intentions of the parties, and to 
 ascertain the nature and extent of their contracts, aris- 
 ing not from express stipulations, but from mere impli- 
 cations and presumptions, and of acts of doubtful and 
 equivocal character, or to ascertain the true meaning 
 of particular words in an instrument when these words 
 have various senses. (6) But usage is never admitted 
 to contradict or substantially vary an agreement or 
 its legal import.(c) 
 
 3. Effect of the law ore the construction of contracts. 
 
 667. The law is a supplement to many contracts, 
 when they have not been made in violation of its pre- 
 cepts. The implied warranty of title in case of evic- 
 tion is only a natural consequence of the contract of 
 sale of personal estate, when nothing has been expressly 
 provided on the subject. (^) 
 
 668. In general, the validity of a contract depends 
 upon the law of the place where it has been made ; if 
 valid there it is valid, in general, every where ;(e) and 
 vice versd, if void or illegal there, it is in general void 
 every where. (/) To this rule, there are some excep- 
 tions : 1. A contract in violation of our laws or the 
 laws of God, will not be enforced here.(g) 2. One 
 nation will not regard or enforce the revenue laws of 
 another. (A) 
 
 669. When the contract is entered into in one place 
 to be executed in another, there are two loci contractus; 
 the locus celebrati contractus, and the locus solutionis; 
 
 (a) Dig. 50, 17, 34. 
 
 (i) The Reeside, 2 Sumn. 569 ; Stultz v Dickey, 5 Binn. 287 ; Ludwicks 
 V. Ohio Ins. Co., 5 Ham. 436 ; United States v. Arredundo, 6 Pet. 715. 
 
 (c) Renner v. Bank of Columbia, 9 Wheat. 581. 
 
 (d) Reed v. Barber, 3 Cowen, 272 ; Colcock v. Reid, 3 McCord, 513 ; 
 Dorsey v. Jackman, 1 S. & R. 42. 
 
 (e) Story, Confl. of Laws, ^ 242. 
 {/) Story, Confl. of Laws, ^ 243. 
 
 (g) Forbes v. Cochrane, 2 B. & Cr. 448, 471. 
 
 (h) Boucher v. Lawson, Cas. Temp. Hardw. 85, 89, 194. 
 
OF PROPERTY BY CONTRACT. 261 
 
 No. 670. Book 2, part 2, tit. 4, chap. 3, sec. 6. No. 672. 
 
 the former governs in every thing which relates to the 
 mode of construing the contract, the meaning to be 
 attached to the expressions, iand the nature and validity 
 of the agreement ; but the latter governs as to the 
 performance of the contract. 
 
 SECTION 6. OF THE EFFECT OF AGREEMENTS WITH REGARD 
 
 TO THIRD PERSONS. 
 
 670. The force of obligations arises from the con- 
 sent of the parties to the contract. It is therefore evi- 
 dent that they can have no effect except between the 
 contracting parties, and that they cannot 'be lawfully 
 injurious to third persons who had no power to act in 
 relation to them. 
 
 But contracts are too often infected with frauds pre- 
 judicial to the creditors of one of the contracting par- 
 ties. These frauds are contrary to the good faith 
 which is required in all agreements, and it is not 
 limited to the contracting parties. Good faith, fair- 
 ness and honesty are equally due to all persons who 
 are interested in that which passes between the con- 
 tracting parties. This is what results from the sub- 
 lime gospel morality, of which the law for the most 
 part is only the development; " all things whatsoever 
 ye would that men should do unto you, do ye even so 
 to them. "(a) 
 
 671. Fraud avoids a contract, ab initio, both at law 
 and in equity, when its object has been to cheat third 
 persons, as well as when one of the parties has cheated 
 the other. (&) This is an actual or positive fraud. 
 
 672. A constructive fraud is an act, which, though 
 not intended as a fraud, yet because of its tendency to 
 mislead or deceive has all the mischievous effects of 
 a fraud. Constructive frauds are such as are either 
 against public pohcy, in violation of some special con- 
 fidence or trust, or operate substantially as a fraud 
 
 (a) Matth. vii. 12. 
 
 \b) Fonbl. Eq. 3d ed. 66, note, 6th ed. 122, and notes ; Newl. Contr. 
 352. 
 
262 OF THINGS. 
 
 No. 673. Book 2, part 2, tit. 4, chap. 3, sec. 6. No. 673. 
 
 upon private rights, duties, or intentions of third 
 persons, (fl) 
 
 673. Several statutes were passed in England, copied 
 indeed from the Roman law, (6) to prevent frauds to 
 third persons. The principles of the statutes, though 
 they may not have been substantially enacted in 
 the United States, prevail generally throughout the 
 Union, (c) 
 
 By the statute of 3 Henry VII., c. 4, all gifts of 
 goods and chattels in trust for the donor were declared 
 void; and by the statute of 13 Eliz. c. 5, gifts of goods 
 and chattels', as well as land, by writing or otherwise, 
 made with intent to delay, hinder or defeat creditors, 
 were rendered void as against the persons to whom 
 such frauds would be prejudicial ; provided that the 
 provisions of this statute shall not extend to bona fide 
 purchasers. 
 
 Soon after the passage of this statute a case arose(c?) 
 in which the court said that the following circum- 
 stances were badges of fraud : 
 
 1. The gift of a man's property in general, without 
 exception of the donor's apparel, of any thing of ne- 
 cessity. 
 
 2. The fact that the donor continued in possession, 
 and used the goods as his own ; and by means thereof 
 traded with others, and defrauded and deceived them. 
 
 3. It was made in secret. 
 
 4. It was made pending the writ. 
 
 5. There was a trust between the parties; for the 
 donor possessed all, and used them as his pi^per goods; 
 and fraud is always appareled and clad with a trust. 
 
 6. The deed expresses that the gift was made 
 honestly, truly, and bona fide; et clausula inconsueta sem- 
 per inducunt suspicionem. 
 
 (a) story, Eq. Ch. 7, ^ 258 to 440. 
 
 (J) Dig. 42, 8, 5, 11 ; 2 Bell, Com. 182. 
 
 (c) Reade v. Livingston, 3 John. Ch. 481 ; 8 Wheat. 229; Den v.De 
 Hart, 1 Halst. 450 ; Bac. Ah. Fraud, C, Bouv. ed. 
 
 (d) Twyne's case, 3 Co. 81 ; S. C. under the name of Chamberlayiie v. 
 Twyne, Moore, 638. 
 
OF PROPERTY BY CONTRACT. 263 
 
 No. 674. Book 2, part 2, tit. 4, chap. 4. No. 674. 
 
 In general, these badges of fraud are so considered 
 in the United States, but they are sometimes viewed 
 as prima facie evidence only, and it depends upon 
 circumstances how far they operate. (a) Again, the 
 reenactment of the principles of these statutes varies 
 in the several states, so that there must of course be a 
 difference in the decisions of the different states. 
 
 By the 27 Ehz. c. 4, it is enacted that all convey- 
 ances, grants, charges, leases, estates, encumbrances, 
 and limitation of uses, of, in, or out of any lands, tene- 
 ments or hereditaments, made with intent to defraud 
 such persons as have purchased or shall purchase in 
 fee simple, etc., the same lands, etc., shall be null and 
 void. 
 
 Whenever a voluntary conveyance is made, a pre- 
 sumption of fraud properly arises upon this statute, 
 which presumption may be repelled by showing that 
 the transaction on which the conveyance was founded, 
 virtually contained some conventional stipulations, 
 some compromise of interests or reciprocity of benefits, 
 that point out an object and motive beyond the indul- 
 gence of affection or claims of kindred, and not recon- 
 cilable with the supposition of an intent to deceive a 
 purchaser. But, unless so repelled, such a conveyance, 
 coupled with a negotiation for sale, is conclusive evi- 
 dence of statutory fraud. 
 
 CHAPTER IV.— OF THE DIFFERENT KINDS OF AGREEMENT. 
 
 674. The several kinds or classes into which agree- 
 ments may be arranged for the purpose of aiding the 
 memory and of considering the principles by which 
 they are governed, may be multiplied almost to in- 
 finity, if we consider the different things which may 
 
 (a) See Hamilton v. Russel, 1 Cranch, 309 ; Conard v. Atlantic Ins. Co., 
 1 Pet. 449 ; Bissel v. Hopb'ns, 3 Cowen, 189 ; Meeker v. Wilson, 1 Galli- 
 son, 419 ; Clow v. Woods, 4 S. & R. 285 ; Young v. M'Clure, 2 Watts & 
 Serg. 147 ; Welsh v. Hayden, 1 Pennsyl. 57 ; Oowden v. Brady, 8 S. & R. 
 510 ; Sterling v. Vancleve, 7 Halst. 285 ; Adams v. Wheeler, 10 Pick. 199 ; 
 Ulmer v. Hills, 8 Greenl. 326 ; Barr v. Hatch, 3 Ham. 529. 
 
264 OF THINGS. 
 
 No. 675. Book 2, part 2, tit. 4, chap. 4. No. 680. 
 
 be the objects of contracts, the clauses which the con- 
 tracting parties may add to them, and which change 
 their nature, the rights and duties which result from 
 them, the condition of the persons who contract 
 whether they be sui juris or not, and the manner of 
 executing or causing them to be executed. But mul- 
 tiplying the classes without need, would be adding 
 obscurity to a subject which requires to be made clear. 
 
 675. Before proceeding to the consideration of the 
 several kinds of contracts, it is proper to notice that 
 in general they are divided into three principal classes: 
 1, contracts of record, such as judgments, recogni- 
 zances, and statutes staple ; 2, specialties, or contracts 
 under seal, such as bonds and deeds; 3, simple con- 
 tracts, or contracts by parol. AU contracts not of 
 record nor under seal are considered as simple or 
 parol contracts, whether they be in writing or not in 
 writing. 
 
 676. A judgment is the decision or sentence of the 
 law given by a court of justice or other competent tri- 
 bunal, as the result of proceedings instituted therein. 
 The law presumes that every man has undertaken to 
 be bound by a judgment against him. 
 
 677. A recognizance is an obligation of record en- 
 tered into before a court or officer duly authorized for 
 that purpose, with a condition to do some act required 
 by law, which is therein specified. 
 
 678. Statutes, both statute staple and statute mer- 
 chant, are forms of contracts in England, by which 
 the lands of the debtor are made responsible for his 
 debts, (a) 
 
 679. The form of contracts under seal and not under 
 seal will be discussed in another place. (&) 
 
 _ 680. The subject will be considered, by taking a 
 view, in separate sections, of contracts as they are, 
 1, joint and several ; 2, conjunctive and disjunctive ; 
 
 (a) 2 Bl. Com. 160. 
 
 [b) B. 4, part 1, tit. 4, c. 6. 
 
OF PROPERTY BY CONTRACT. 265 
 
 No. 681. Books, part 2, tit. 4, chap. 4, sec. 1, 5 1. No. 682. 
 
 3, divisible and indivisible; 4, dependent and inde- 
 pendent; 5, principal and accessory; 6, certain and 
 hazardous ; 7, gratuitous and onerous ; 8, limited and 
 unlimited contracts, as to the time of their perform- 
 ance; 9, conditional and unconditional; 10, penal; 
 and 11, illegal and fraudulent. 
 
 SECTION 1. OP JOINT AND SEVERAL AGREEMENTS. 
 
 681. An individual may make an agreement with 
 several others, by which he promises to perform some 
 act to them jointly, or to pay to each of them some- 
 thing separately ; or several individuals may promise 
 to one or more others that they will jointly perform 
 certain things, or they may promise that the perform- 
 ance shall be by each of them, each binding himself 
 independently of the other. The effect of these obli- 
 gations depends upon the will of the contracting 
 parties, but it not unfrequently happens that owing to 
 the ignorance of the person who has drawn up the 
 agreement, or from some other cause, it becomes 
 diflficult to say what is the intention; to ascertain 
 this, the courts have adopted certain rules which will 
 be here examined. 
 
 § 1. — ^When the promise is made to several persons. 
 
 682. It is a general rule that when a contract is 
 made in favor of several persons jointly, who have a 
 joint interest, as to pay to A and B one thousand dol- 
 lars, they must join in the recovery of the money ; (a) 
 and if one of them dies, whether he be a partner, joint 
 obligee, or otherwise entitled to some interest in a con- 
 tract, not running with the land, the legal right sur- 
 vives to the other obligee. But in commercial contracts, 
 although the legal title remains alone in the survivor, 
 jet he is accountable to the executors or personal 
 representatives of the deceased: jus accrescendi inter 
 mercatores pro beneficio commercii locum non habet.(b) 
 
 [a) 1 Saund. 153, note 1 ; Sorsbie v. Park, 12 M. & W. 156—158; 
 Slingsby's Case, 5 Co. 18 b ; Spencer v. Durant, Comb. 115 ; Addis, on 
 Contr. 273. (i) Co. Litt. 182 a. 
 
OF THINGS. 
 
 No. 683. Book 2, parts, tit. 4, chap. 4, sec. 1, 52. No. 685. 
 
 But when the obligation is to several persons, to 
 each a part, as for example, to pay to A five hundred 
 dollars, and to B five hundred dollars, the right does 
 not go to the survivor.(a) 
 
 § 2. — ^When the promise is made by several persons. 
 
 683. When two or more persons join in an obliga- 
 tion, promise, or agreement to perform a certain thing, 
 they are all liable, and on failure to fulfil their engage- 
 ment, they must all be sued together. In their con- 
 tracts partners always bind themselves jointly, for one 
 has an implied authority to bind the rest in any thing 
 relating to the partnership. 
 
 Members of a club, which is a temporary association 
 of persons for some special purpose, are generally 
 jointly obligated to perform their agreements, and 
 they may bind each other when specially authorized, 
 or the authority may necessarily be implied. (&) 
 
 684. But it frequently happens that the debtors are 
 bound both jointly and severally ; when they are jointly 
 responsible, and they are also individually responsible, 
 at the choice of the creditor. The usual formula in 
 these cases, is this : " We jointly and severally pro- 
 mise ;" or, " We or either of us promise." Any other 
 expression, however, which clearly shows that the 
 parties intend to be severally and individually re- 
 sponsible, will be sufficient; as, "We promise each 
 for the whole." 
 
 685. When the contract is joint only, and one of the 
 obligors dies, the others are alone responsible at law, 
 though the assets of the deceased may be reached in 
 equity. But when the contract is several as well 
 as joint, or simply several, the survivors are each 
 
 (a) Shaw V. Sherwood, 1 Cro. Eliz. 729 ; Servante v. James, 10 B. & 
 Cr. 410. 
 
 (i) Story, Partn. 144; Colly. Partn. 31 ; Wordsw. Joint St. Co. 154; 
 Sawyer"J«. Meth. Bpisc. Soc. in Koyalton, 18 Verm. 405 ; Slocum v. Fair- 
 child, 7 Hill, 292. 
 
OF PROPERTY BY CONTRACT. 267 
 
 No. 686. Book 2, part 2, tit. 4, chap. 4, sec. 2, § 1. No. 688. 
 
 responsible .for the whole, ^nd the representatives of 
 the deceased are also liable at law. 
 
 686. The payment by one of several joint debtors, 
 discharges the others from the debt, and the debtor 
 who has satisfied the obligation, is entitled to recover 
 from the others a just contribution; and if the amount 
 which each debtor was to pay has not been expressed, 
 the presumption is that they were equally liable. (a) 
 
 SECTION 2. OF CONJUNCTIVE, DISJUNCTIVE, OK ALTEKNATIVE 
 
 AGREEMENTS. 
 
 § 1. — Of conjunctive agreements. 
 
 687. A conjunctive agreement is one which contains 
 several things which are to be performed, the whole 
 united by a conjunction, to indicate that they are all 
 equally the object of the contract : for example, if I 
 promise for a lawful consideration to deliver to you 
 my copy of the Life of Washington, my Encyclopae- 
 dia, and my copy of the History of the United States, 
 I am bound to deliver all of them, and cannot be 
 discharged by delivering one only; and I may deliver 
 either in discharge of my contract pro tanto. But if 
 my contract had not been in the conjunctive, but a 
 unit or entire contract, as, if I promised, for the same 
 consideration, to deliver to you all my library, (the 
 very books in question,) you would not have been 
 bound to receive a part in discharge of my obligation, 
 because no one can be compelled to receive only a 
 part of what is due to him on an entire contract. 
 
 688. There are several contracts, where a sum is to 
 be paid in instalments; as an agreement to pay on the 
 first day ©f January, one thousand dollars, and on the 
 first day of July, another thousand dollars, although 
 both engagements may be contained in the same 
 agreement. In this case the creditor may compel the 
 debtor to pay one instalment before the other becomes 
 
 (a) See Lawrence v. Cornell, 4 John. Ch. R. 545 ; 1 Bibb, 562. 
 
268 OF TfflNGS. 
 
 No. 689. Books, part 2, tit. 4, chap. 4, sec. 2, } 2. No. 691. 
 
 due ; and the creditor may make a good legal tender 
 of one instalment, without tendering the other. 
 
 § 2. — Of a disjunctive or alternative agreement. 
 
 689. An agreement may be made by which the 
 debtor shall be obliged to deliver one of two things 
 which are the object of the' contract; this is called an 
 alternative or disjunctive agreement; as if, for a valuable 
 consideration, I promise to deliver to you my copy of 
 the Life of Washington, or my copy of the History of 
 the United States ; it is evident I owe you but one of 
 these books and not both, and I have the choice to 
 deliver to you either in discharge of my engagement, 
 unless I have also agreed to let you have the choice. (a) 
 Or, if I have agreed to deliver to you from seven hun- 
 dred to a thousand barrels of meal, I have the choice 
 to deliver to you the greater or the lesser amount. (&) 
 
 690. The contract may be to pay a certain sum at 
 one time, or a certain sum at another time ; in that 
 case the debtor has the right to choose whether he 
 will pay the lesser sum at the first time mentioned, or 
 the greater sum at the other time; as where A agreed 
 to pay B eight dollars per acre for a tract of land, in 
 two several payments, and in case of default in either 
 payment, then nine dollars an acre at a further speci- 
 fied time.(c) 
 
 691. When an agreement is in the conjunctive, but 
 it is impossible for it to be so performed, it shall he 
 taken in the disjunctive ; as, where a man bound him- 
 self and his executors to do a certain thing, it was im- 
 possible to perform it, because no man has executors 
 while he is living, and after his death he cannot join 
 them in the performance of the agreement. (<?) 
 
 (a) Choice v. Mosley, 1 Bailey, 136. 
 
 (h) Disborough v. Neilson, 3 John. Cas. 81 ; Small v. Quincey, 4 Greenl. 
 497. 
 
 (c) Smith V. Sanborn, 11 John. 59 ; Pate v. Hicks, Bendl. 158 ; Bac. Ah. 
 Kent, (D), Bout. ed. 
 
 (d) Roll. Ab. 444; Bac. Ab. Conditions, (P), Bouv. ed. 
 
OF PROPERTY BY CONTRACT. 269 
 
 No. 692. Books, parts, tit. 4, chap. 4, sec. 3. No. 694. 
 
 692. On the other hand, when in form the engage- 
 ment is disjunctive or alternative, but, in fact, the 
 paity has no choice, it is then an absolute agreement; 
 as, where I promised to deliver you one thousand 
 dollars, or to make you a deed for a house which both 
 of us believed to be mine, and afterward it is disco- 
 vered that the house was yours and not mine, I am 
 absolutely bound to pay you a thousand dollars. (a) 
 
 693. The right to choose which of two things is to 
 be delivered to fulfil an alternative obligation, called 
 the right of election, is vested in the party to whom it 
 is given by the agreement ; but when there is no one 
 selected to exercise this right, it belongs to the first 
 agent, or he who is to do the first act,(b) and on his 
 failure to exercise it in proper time, the right passes 
 to the other party. (c) 
 
 Once made, the election is binding on the party : 
 electio semel facta, et placitum testatum, non patitur re- 
 gressum.{d) 
 
 SECTION 3. OP DIVISIBLE AND INDIVISIBLE AGREEMENTS. 
 
 694. The end of this doctrine of the divisibility and 
 indivisibiUty of contracts is to ascertain when they 
 may be enforced in part, or jpaid in part, without the 
 consent of the opposite party. When the debt is due 
 and payable by one person to another, although sus- 
 ceptible of division by its nature, it must be executed 
 between the parties as if it could not be divided. For 
 example, I owe you one thousand dollars, this" sum 
 may be conveniently divided into two of five hundred 
 dollars, but you cannot sue me for only five hundred 
 as a part, and I cannot compel you to take five 
 hundred dollars on account ; a tender of less than the 
 whole amount due is not a vahd tender. 
 
 la) Poth. Obi. n. 249. 
 
 (b) Co. Litt. 145 a. 
 
 (c) Viner Ab. Election, B, C ; Poth. Ob. n. 247 ; Bae. Ab. Elections, (B), 
 
 (d) Oo. Litt. 146 ; 11 John. 241. 
 
270 OF THINGS. 
 
 No. 695. Book 2, part 2, tit. 4, chap. 4, eec. 3. No. 697. 
 
 695. As I cannot transfer a greater right than I 
 have, I cannot assign a part of the debt you owe me, 
 so as to vest in my assignee a right to demand it and 
 to sue you separately. 
 
 696. But when a contract is to do sever d things at 
 several times, it is divisible in its nature, and each part 
 may be separately enforced ; as, when the defendant, 
 being the keeper of an of&ce for procuring crews of 
 vessels, in consideration of the plaintifif's engagement 
 to furnish such supplies and advances as might be 
 necessary in the business, promised to pay the plaintiff 
 a certain sum for each man shipped, and to repay the 
 advances, it was held that though the agreement was 
 entire, the performance was several, and that an action 
 would lie for each breach of the defendant's promise. («) 
 So, also, where the defendant by public advertisement 
 offered a reward for a parcel of bank notes which had 
 been lost, he was held liable to the finder of a part of 
 them for a proportion of the reward. (6) 
 
 697. But sometimes when the creditor and debtor 
 are each alone, in making the contract, still it may be 
 divided or apportioned. This happens particularly in 
 the case of rents. This may take place in two ways; 
 1, by the act of the reversioner alone ; and, 2, by 
 virtue of particular statutes. 
 
 1. When there is a subsisting obligation on the part 
 of the tenant to pay a certain rent, the reversioner 
 may sell his estate in different parts, to as many 
 persons as he may deem proper, and the lessee or 
 tenant will be bound to pay to each a proportion of 
 the rent, (c) It is usual for the owners of the reversion 
 to agree among themselves as to the amount which 
 each is to receive, but when there is no agreement, 
 the rent will be apportioned by the jury.(rf) On the 
 
 (a) Badger v. Titcomb, 15 Pick. 409. 
 
 (b) Symmes v. Frazier, 4 Mass. 344. See Aldrich v. Fox, 1 Greenl. 316. 
 
 (c) Bank of Pennsylvania v. Wise, 3 Watts, 404 ; Parley v. Craig, 6 Halst. 
 262 ; Nellis v. Lathrop, 22 Wend. 121 ; Co. Litt. 158 a. 
 
 {(l) 3 Kent, Com. 470. 
 
OF PROPERTY BY CONTRACT. 271 
 
 No. 698. Book 2, part 2, tit. 4, chap. 4, sec. 3. No. 698. 
 
 other hand, when the owner of a rent charge purchases 
 a part of the land, out of which it issues, the whole 
 rent charge is extinguished. (a) But there is a differ- 
 ence when part of the land comes to him by operation 
 of law, as by descent, for then the rent charge is 
 apportionable, the tenant and the heir being bound to 
 pay according to the value of the lands held by them 
 respectively. (6) A rent service is apportionable in 
 both cases. (c) The rent may also be apportioned if 
 part of the land out of which the rent charge issues is 
 evicted by title paramount. 
 
 2. Rent may also be apportioned by descent and 
 judicial sales. 
 
 It may be apportioned as to time, by virtue of the 
 English statute 11 Geo. II., c. 19, s. 15, the principles 
 of which have been reenacted with some modifications 
 or adopted in the several states. It provides that 
 when rent is due by a tenant for life, and he dies 
 during the currency of a quarter, or year, or other 
 division of time at which rent was made payable, it 
 shall be apportioned to the day of his death. 
 
 698. When the contract is entire, that is, when the 
 consideration is entire on both sides, the entire fulfil- 
 ment of the promise, by either of the parties, as a con- 
 dition precedent, is required before an action can be 
 maintained ; as where a sailor agreed to perform ser- 
 vices on a certain voyage, for the whole time, for the 
 consideration of thirty guineas, and he died during 
 the voyage, it was held that the contract was entire, 
 and that the whole service, which was a condition 
 precedent to the payment of wages, not having been 
 performed, no part of the thirty guineas could be 
 recovered. (dZ) 
 
 (a) Co. Litt. 147, 148. See 1 Swanst. E. 338, note a. 
 
 lb) Co. Litt. 49; Bac. Ab. Kent, M. 
 
 h) Co. Litt. 49. 
 
 (d) Cutter v. Powell, 6 T. R. 326; Vin. Ab. Apportionment, where the 
 author states a controversy he had with Sir John Strange, on this subject. 
 See Jennings v. Camp, 13 John. 94 ; 1 Swanst. 338, note. 
 
272 OF THINGS. 
 
 No. 699. Book2, part 2, tit. 4, chap. 4, sec. 4. No. 701. 
 
 SECTION 4. OF DEPENDENT AND INDEPENDENT AGEEEMENTS. 
 
 699. When there are promises on both sides in an 
 agreement, it becomes a question whether one party 
 is bound to perform his, before the opposite party shaU 
 be required to fulfil those on his side. This depends 
 upon the contract of the {)arties, and the manner in 
 which they have expressed themselves in the writing. 
 When the performance of one depends on the prior 
 performance of the other, the agreements or covenants 
 are said to be dependent. {a) Independent covenants, 
 on the contrary, are those where either party may 
 recover damages from the other for the injury he 
 may have sustained, by a breach of the covenants in 
 his favor, and when it is no excuse for the defendant 
 to allege a breach of covenants on the part of the 
 plaintiff. (6) 
 
 700. The true criterion to know whether covenants 
 or agreements are dependent or not, is the intention 
 of the parties, and this is to be discovered from the 
 order or time in which the acts are to be done, rather 
 than from the structure of the agreement, or the 
 arrangement of the words. (c) And mutual covenants 
 will be construed as dependent or independent cove- 
 nants, as it may best concur with the design of the 
 whole instrument, and effectuate the intention of the 
 parties, (d) 
 
 701. To discover the intention of the parties, four 
 rules have been suggested ; the first two relate to de- 
 pendent, and the last two to independent contracts. (e) 
 
 1st. When the mutual covenants go to the whole 
 
 (a) MoCrelish v. Churchman, 4 Rawle, 26 ; Tompkins v. Elliot, 5 Wend- 
 496. 
 
 (b) Cook v. Johnson, 3 Mis. 239 ; Couch v. Ingersoll, 2 Pick. 300. 
 
 (c) Goodwin v. Lynn, 4 Wash. C. C. 714 ; Speake v. Sheppard, 6 Har. & 
 John. 85. 
 
 (d) Wright V. Smith, 4 W. & S. 527; Adams v. Williams, 2 W. & S. 
 227. 
 
 (e) Piatt on Cot. 80. 
 
OF PROPERTY BY CONTRACT. 273 
 
 No. 70S. Book 2, part 2, tit. 4, chap. 4, sec. 5. No. 703. 
 
 of the consideration on both sides, they are mutual 
 conditions, the one precedent to the other. (a) 
 
 2d. Where a day certain is appointed for the pay- 
 ment of the money ; if the day is to occur after the 
 time in which the consideration for which the money 
 is payable ought to be performed, the performance of 
 the consideration is a condition precedent to the pay- 
 ment of the money. (&) 
 
 3d. When mutual covenants go only to a part of the 
 consideration on both sides, and when a breach may 
 be paid for in damages, the defendant has a remedy on 
 his covenant, and is not allowed to plead it as a condi- 
 tion precedent.(c) 
 
 4th. When a day is appointed for the payment of 
 money, and the day comes before the thing for which 
 the money is to be paid can be done, then, though the 
 agreement is to pay the money before the doing of the 
 thing, yet an action may be brought for the money 
 before the performance; because the agreement is 
 positive that the money shall be paid on that day, and 
 the presumption is that the party intended to rely on 
 his remedy and not on a previous performance. ((^) 
 
 SECTION 5. OF PRINCIPAL AND ACCESSORY AGREEMENTS. 
 
 702. A principd agreement, sometimes called a 
 primary obligation, is that which is the principal object 
 of the engagement, that which has been contracted 
 mainly for itself; for example, the principal or 
 primitive obligation of the seller is to deliver the 
 thing sold, and to transfer the title to it. 
 
 The accessory or secondary obligation is to pay 
 damages if he fails to do so. 
 
 703. There are two kinds of accessory obligations. 
 
 (a) Boone v. Eyre, 1 H. Bl. 273, note ; 2 W. Bl. 1312 ; Howland v. 
 Leach, 11 Pick. 151. 
 
 (h) Bailey v. White, 3 Ala. 330. 
 
 (c) Cook V. Johnson, 3 Mis. 239. 
 
 (</) Millens v. Oabiness, Minor, 21 ; Wilcox v. Ten Eyck, 5 John. 78 ; 
 Botts V. Ferine, 14'Wend. 219 ; Couch v. IngersoU, 2 Pick. 300 ; Seers v. 
 Fowler, 2 John. 272. 
 
 Vol. I. 18 
 
274 OF THINGS. 
 
 No. 704. Books, parts, tit. 4, chap. 4, sec. 6, § 1. No. 706. 
 
 1. Those which are a necessary consequence of the 
 principal obUgation, and which arise naturally in con- 
 sequence of the non-execution of the principal engage- 
 ment, without any other or particular agreement ; for 
 example, damages become due by law and in equity, 
 as a consequence of a breach of the agreement by an 
 act of the debtor, which has happened since the agree- 
 ment. 
 
 2. Those which arise from a clause expressly in- 
 serted in the agreement, by which the party who is 
 bound promises to pay a certain sum or deliver some 
 other thing, in case he does not fulfil his principal 
 engagement in due time ; as where the parties agree 
 that on failure to complete the contract, the delinquent 
 shall pay hquidated damages. 
 
 Sometimes the accessory engagement takes the place 
 of the principal, which is then annulled, so that the 
 creditor cannot require its performance ; for example, 
 if the thing sold is lost through the fault of the seller, 
 or while the title was in him, there then subsists only 
 the accessory obligation of paying damages. 
 
 Sometimes the accessory obligation attaches to the 
 principal without destroying it ; they subsist together. 
 For example, if the maker of a promissory note does 
 not pay it when due, he owes the amount of the note 
 and all the interest which afterward accrues. 
 
 704. There is another kind of principal engagement 
 and another species of accessory obligation. When a 
 man engages to perform a certain thing for himself, he 
 enters into a principal obligation ; when he agrees to 
 become a surety, his obligation is an accessory. 
 
 SECTION 6. OF CERTAIN AND HAZARDOUS AGREEMENTS. 
 
 705. Considered in relation to their effects, contracts 
 are either certain or hazardous. 
 
 § 1. — Of certain contracts. 
 
 706. A contract is certain when the thing to be 
 
OF PROPERTY BY CONTRACT. 275 
 
 No. 707. Book2, pan 2, tit. 4, chap. 4, see 7, } 1,2, art. 1. No. 710. 
 
 done is supposed to depend on the will of the party, or 
 when in the usual course of events it must happen in 
 the manner stipulated. These contracts are regulated 
 by the rules which have been stated in relation to 
 contracts generally. 
 
 § 2. — Of hazardous contracts. 
 
 707. A contract is hazardous when the performance 
 of that, which is one of its objects, depends on an 
 uncertain event, such as insurance, gaming, wagers. 
 These will be considered under another head, when 
 we come to treat of particular contracts. 
 
 SECTION 7. OF ONEROUS AND GKATUITOUS CONTRACTS. 
 
 § 1. — Of onerous contracts. 
 
 708. An onerous contract is one which is made for 
 a valuable consideration given or promised, however 
 small, such as sale, hiring, partnership, barter, and the 
 like. 
 
 § 2. — Of gratiutous contracts. 
 
 709. A gratuitous contract is one by which .one of 
 the parties procures for the other an advantage without 
 any benefit to himself, such as commodatum, deposit, 
 mandate, donation or gift, and becoming security for 
 another. The subjects of commodatum, deposit and 
 mandate we will examine when we come to consider 
 the law of bailments to which they belong. 
 
 M. l.-Ofgifis. 
 
 710. A gift of personal chattels is the act by which 
 the owner of a thing voluntarily transfers the title and 
 possession of the same from himself to another person 
 who accepts it, without any consideration whatever. 
 It diflers from a grant, sale or barter in this, that in 
 each of these cases there must be a consideration; 
 
276 OF THINGS. 
 
 No. 711. Book 2, part 2, tit. 4, chap. 4, sec. 7, } 2, art. 1. No. 712. 
 
 and a gift, as the definition states, must be without a 
 consideration . (fl) 
 
 The manner of making the gift may be in writing, 
 or verbally, and, as far as personal chattels are con- 
 cerned, they are equally binding. (&) 
 
 711. Gifts are divided into gifts inter vivos and 
 gifts causA mortis. They are also divided into simple 
 or proper gifts, that is, such as are to take immediate 
 eflfect without any condition ; and qualified or improper 
 gifts, or such as derive their force upon the happening 
 of some condition or contingency ; as, for example, a 
 donatio mortis causd. 
 
 1. Gifts inter vivos. 
 
 712. A gift inter vivos is one made by one or more 
 persons, without any prospect of immediate death, to 
 one or more others. 
 
 Gifts inter vivos are so called to distinguish them 
 from gifts in contemplation of death or mortis causd, 
 for they differ essentially. 1. A gift inter vivos, when 
 completed by delivery, so passes the title to a thing 
 that it cannot be recovered back by the giver ;(c) the 
 gift mortis causd is always upon the implied condition 
 that the giver may at any time during his life revoke 
 it.{d) . A gift inter vivos may be made by the giver at 
 any time ; the donatio mortis causA must be made by 
 the donor while in peril of death. In both cases there 
 must be a delivery. 
 
 Without a delivery a gift inter vivos has no effect 
 whatever.(e) 
 
 Gifts may be made expressly or by implication. A 
 gift will be implied when a father, on the marriage of 
 his daughter, sent home with her personal property 
 suitable for her condition. (/) 
 
 la) 2 Bl. Com. 440. 
 
 (i) Perk. 'J 57 ; 2 Bl. Com. 441. 
 
 (c) McKane v- Bonner, 1 Bailey, 113. 
 
 (d) Wells V. Tucker, 3 Binn. 366. 
 
 (e) Noble v. Smith, 2 John. 52 ; Ewing v. Ewing, 2 Leigh, 337. 
 
 (/) McCluney v. Lockhart, 4 McCord, 251. See Grangiac v. Arden, 10 
 John. 293. 
 
OF PROPERTY BY CONTRACT. 277 
 
 No. 713. Book 2, part 2, tit. 4, chap. 4, sec. 7, J 2, art. 1. No. 715. 
 
 A gift will be considered fraudulent, if made by a 
 man in insolvent circumstances ; but a gift of property 
 is not void merely because the giver was indebted at 
 the time. (a) 
 
 2. Of donatio mortis causa. 
 
 713. A gift in prospect of death, donatio mortis causA, 
 is the act of a person who, apprehending his dissolu- 
 tion near, delivers, or causes to be delivered to another, 
 the possession of any personal goods, to keep as his 
 own, in case of the death of the giver. (6) This gift is 
 always upon the implied condition that if the donor 
 dies, the donee shall possess it absolutely ; and that if 
 the donor should survive or repent of having made 
 the gift, then the donee shall return it to the donor. 
 
 714. This amphibious gift so far resembles a legacy, 
 that it is ambulatory and incomplete during the donor's 
 life ; it is, therefore, revocable by him,(c) and is sub- 
 ject for his debts upon a deficiency of assets.(cZ) But 
 in* the following particulars it differs from a legacy ; it 
 does not fall within an administration, nor are any acts 
 of the executor required to give a complete title to the 
 donee, (e) 
 
 715. The following circumstances are necessary to 
 constitute a good donatio mortis catisd : 
 
 1. That the thing given be personal property, (/) 
 but it is not requisite it should be in possession ; a 
 bond,(g) bank notes, (A) and a cheGk,(«) offered for 
 payment during the Ufe of the donor, will be so con- 
 sidered. 
 
 (a) Mateer v. Hissim, 3 Pennsyl. 160 ; Howard v. Williams, 1 Bailey, 575. 
 
 (b) 2 Bl. Com. 514. See Adams v. Nicholas, 1 Miles, R. 90, 112, the 
 learned opinion of Jones, J. ; Nicholas v. Adams, 2 Whart. 17. 
 
 (c) Wells V. Tucker, 3 Binn. 366 ; 7 Taunt. 231. 
 (rf) Bameman «. Sedlinger, 3 Shep. 429. 
 
 (e) I Rop. on Leg. 20. 
 
 (/) Wells V. Tucker, 3 Binn. 366, 870 ; Wright v. Wright, 1 Cowen, 598. 
 
 Ig) 3 Binn. 370. 
 
 (h) 2 Bro. C. C. 612. 
 
 (i) 4 Bro. 0. 0. 286. 
 
278 OF THINGS. 
 
 No. 716. Book 2, part 2, tit. 4, chap. 4, sec. 7, J 2, art. 2. No. 716. 
 
 2. That the gift be made by the donor in peril of 
 death, or during his last illness, and to take effect only 
 in case the giver die. 
 
 3. That there be an actual delivery of the subject to 
 and for the donee, in cases where such delivery can be 
 made. But such delivery can be made to a third per- 
 son for the use of the donee, (a) 
 
 Art. 2. — Of suretyship. 
 
 716. Suretyship is a collateral agreement by which 
 one or more persons bind themselves for another 
 already bound, either in whole or in part, as for his 
 debt, default or miscarriage, to one or more others. 
 
 The principal must be liable or the contract of sure- 
 tyship cannot exist ; if a man promise that a married 
 woman shall pay her bond given during coverture, the 
 promisor does not become a surety but a principal, 
 because the woman was not bound. (6) So the surety 
 becomes a principal, if he guarantees the payment of 
 a void obligation. (c) 
 
 The surety may become bound for a less sum than 
 the principal, but never for a greater, and, if he do, 
 the contract will be void for the excess. ((?) 
 
 In general the contract is entered into on the part 
 of the surety, without any pecuniary consideration as 
 between himself and the obligee, so that as it regards 
 himself, the contract is gratuitous, yet a consideration 
 may be paid to the surety to enter into it. 
 
 As to its form, the contract of suretyship may be 
 in writing or verbally: and where the statute of 
 frauds, 29 Car. II., c. 3, is in force, or its principles 
 have been adopted, the agreement " to answer for the 
 debt, default, or miscarriage of another person," must 
 be in writing. 
 
 (a) 
 
 3 Binn. 370. 
 
 Pitm. on P. & S. 13 ; Burge on Sur. 6 ; Poth. Ob. n. 106. 
 (c\ 2 Ld. Eaym. 1066; 1 Burr. 363. 
 (d) Burge on Sur. 4, 5. 
 
OF PROPERTY BY CONTRACT. 279 
 
 No. 717. Book 2, part 2, tit. 4, chap . 4, sec. 8, j 1. No. 719. 
 
 The contract of suretyship will be more fully treated 
 of, when we come to consider the nature of particular 
 contracts. 
 
 SECTION 8. OF LIMITED AND UNLIMITED CONTRACTS AS- TO 
 
 THE TIME OF THEIR PERFORMANCE. 
 
 717. Every obligation is pure and simple, or con- 
 ditional or payable at a future time. When time is 
 given or limited for the payment or performance of a 
 contract, this time is called its term. An obligation is 
 pure or simple, when there is not attached to the con- 
 tract either a condition or a term ; in that case it 
 receives all its effects the moment the contract is 
 concluded, and it may be enforced without delay, (a) 
 
 A conditional agreement arises the moment the con- 
 dition has been fulfilled; till then its existence and 
 consequently its execution are suspended. 
 
 A contract to be fulfilled at a future day, like a pure 
 or simple engagement, arises the moment the agree- 
 ment has been concluded ; but it differs from it in this, 
 that its execution is suspended until the term arrives ; 
 in other words, although it is owing, it is not payable 
 till it becomes due. 
 
 718. The term, or delay authorized by law, in ful- 
 filling a contract, is certain or uncertain ; express or 
 imphed ; it is of right or the consequence of some pro- 
 vision of law. 
 
 § 1. — Of a certain and uncertain term. 
 
 719. The term is certain when the time for fulfill- 
 ing the obligation or for making payment must come 
 certainly ; as, I promise to pay you one- thousand dol- 
 lars on the fourth of July, 1876. 
 
 It is uncertain, when the day fixed for the perform- 
 ance is unknown ; and it may be uncertain in several 
 ways. It may be uncertain whether it will ever 
 
 (a) Kendall -v. Talbot, 1 A. K. Marsh. 321 ; Payne «. Mattox, 1 A. K. 
 Marsh. 164. 
 
280 OF THINGS. 
 
 No. 720. Book 2, part 2, tit. 4, chap. 4, Bee. 8, J 2, 3. No. 722. 
 
 arrive, or if it shall arrive, when it will come ; for 
 example, I promise to pay you so much when you 
 shall marry, or when you are elected president of the 
 United States. This double uncertainty is rather a 
 condition than a term. 
 
 It may be uncertain as to the day when the time 
 shall come, although the time it will come, if it does 
 come, be not uncertain, as when you arrive at the age 
 of thirty years. This is also in the nature of a con- 
 dition. 
 
 The term may be fixed at a time which is uncertain 
 but which must come, as I promise to pay you so much 
 the next day after the death of Titius. 
 
 § 2. — Of express or implied terms. 
 
 720. The term is express, when it is particularly 
 stated in the agreement ; implied, when it is not. If, 
 for example, a workman should agree with you to mow 
 your grass or to reap your wheat, it is evident he could 
 do it only during the season when those crops are to 
 be gathered, and the contract could not be enforced 
 before, although it was made on the first day of Janu- 
 ary ; but, if on that day, he had promised to pay you 
 a sum of money, he would be obliged to pay it at 
 once. 
 
 § 3. — ^When the term is of right, and -when it will be postponed 
 
 by law. 
 
 721. The time of payment is a right when it is 
 agreed upon, either expressly or by impUcation, and 
 no longer delay can be given to the creditor without 
 violating the law of the contract. 
 
 722. But sometimes, from pubUc considerations, 
 though the right of the creditor be not taken away, yet 
 the remedy he has against his debtor is suspended. 
 This is never done to fevor an individual, but because 
 the public good requires that he should be left free to 
 attend to his public duties, unembarrassed by his pri- 
 vate concerns. 
 
OF PROPERTY BY CONTRACT. 281 
 
 No. 723. Book 2, part 2, tit. 4, chap. 4, sec. 8, ^ 3. No. 725. 
 
 Members of the national and state legislatures are, 
 in general, free from suits or actions, while the body 
 to which they belong is in session, and for a reasonable 
 time in going to and returning from the seat of govern- 
 ment, (a) 
 
 Electors under the constitution of the United States, 
 or of the several states, whUe attending to their duties 
 as such, and going to, staying at, or returning from an 
 election, eundo, mbrando, et redeundo, cannot be served 
 with process on civil contracts. And soldiers in the 
 actual service of the United States, are also privileged; 
 so are parties and witnesses while attending court; 
 and if any writ demanding bail issued against them 
 in a civil case be executed on them, the court will dis- 
 charge them ; or if a summons be served on them, the 
 service of the writ will be set aside. 
 
 723. But, although the obligor, under these circum- 
 stances, cannot be compelled by action to pay his debt, 
 yet this case differs from the one where the debt is 
 owing, but is not due ; for example, a debt due by a 
 person privileged cannot be collected until the end of 
 the time of the privilege, as if it were not due, but if 
 the privileged person should sue the other, the latter 
 may set off the claim he has against the plaintiff, be- 
 cause the right exists, and it is the remedy only which 
 is suspended. 
 
 724. By the almost universal practice among mer- 
 chants in this country, the holder of a bill of exchange 
 or promissory note cannot demand payment of it, nor 
 protest it, till the end of three days after it becomes 
 due, by the terms of the contract, which three days 
 are called days of grace. 
 
 725. In most, if not in all the states, the debtor is 
 allowed a time after judgment has been rendered 
 against him, upon giving security to pay at a future 
 day, in violation of the letter of the contract; and it 
 is justifiable only on the ground that when the parties 
 
 (a) Jeff. Man. § 3 ; Story on the Const. ^^ 856 to 862. 
 
282 OF THINGS. 
 
 No. 726. Book 2, part 2, tit. 4, chap. 4, sec. 8, 5 4. No. 728. 
 
 deal, they agree tacitly to make the laws of the land, 
 as far as they operate on their contracts, a part of 
 them. 
 
 § 4. — Whether the performance may be befor,e the term has expired. 
 
 726. In general, the term or time allowed for the 
 performance of the agreement is for the benefit of the 
 debtor, and, with the consent of the creditor, he may 
 doubtless pay the debt or discharge himself, before his 
 obligation is exigible. But without such consent, has 
 he the right to do so ? 
 
 If the agreement is to pay a sum of money at the 
 end of a year, with interest, it is evident he cannot 
 pay before the end of the term without the consent of 
 the creditor, unless he offers to pay interest for one 
 year. But even then, a question may be fairly raised 
 whether he can so pay. The creditor may have no 
 place for his money till the end of the time, or he may 
 be in a place where the possession of money, if known, 
 would endanger his life, and it would be imposing a 
 burden upon him to compel him to take care of it, and 
 run all risks of its loss; besides, there are times when 
 money is not worth so much as at other periods : for 
 example, when certain banks which regulate the cur- 
 rency, have extensive issues, money is less valuable 
 than at other and different times. Upon principle it 
 is evident that the debtor cannot throw a burden on 
 the creditor, and that it is no difference whether the 
 thing to be paid is money or any thing else. Suppose 
 you agree to deliver me a pair of horses on the first 
 day of April, have you a right to deliver them to me 
 on the first day of January, and by that means compel 
 me to winter them, when they are useless to me ? K 
 you have no right to make me keep the horses, by 
 what authority or justice can you compel me to keep 
 the money? 
 
OF PROPERTY BY CONTRACT. 283 
 
 No. 727. Book 2, part 2, tit. 4, chap, i, sec. 8, § 5^ No. 729. 
 
 § 5. — How time is computed in ascertaining when the thing is due. 
 
 727. It is always of importance to know when a 
 debt becomes due. The creditor cannot sue till the 
 time has expired, nor can he set off his claim against 
 the demand of his debtor. The day on which the 
 debt becomes due, terminus ad quern, is undoubtedly 
 included in the term ; and the creditor cannot sue till 
 the next day. If, therefore, I have promised to pay 
 you on the fourth of July, you cannot sue me till the 
 fifth. When the end of the term is determined in this 
 precise manner, no difficulty can arise. 
 
 728. But when it is not, as when on the first day 
 of January I promise to pay you in ten days, in a 
 month or a year, a question arises if the term a quo, 
 the first day of the term is included in the delay. The 
 rule is, that unless something appears in the contract 
 to the contrary, the first day is not included, and the 
 bill due in ten days would not be due till the end of 
 the eleventh day, and no suit could be brought till the 
 twelfth. (a) To prevent the interminable difficulties 
 which would arise if time was computed by days, 
 hours and minutes in such cases, the rule is to exclude 
 the day a quo, there being for this purpose no fractions 
 of days. (6) 
 
 729. But another difficulty arises in the computa- 
 tion of months. Astronomical months are composed 
 of the time which is employed by the sun in perform- 
 iag one-twelfth part of his course around the zodiac; 
 all these months are, therefore, of equal length. The 
 civil months, January, February, March, etc., are un- 
 equal, and the question arises how shall they be com- 
 
 !: 
 
 (a) Homes v. Smith, 4 Shep. 181 ; Ewing v. Bailey, 4 Scam. 420. 
 
 (b) Portland Bank v. Maine Bank, 11 Mass. 204. But the rule that 
 there are no fractions in a day, will not be so applied as to do injustice, as 
 where a sale was made of real estate in trust, and it was registered a short 
 time, less than a day, before an execution was issued, the fiction was made 
 to yield to the justice of the case. Metz v. Bright, 4 Dev. Batt. 173 ; In 
 the matter of Richardson, 2 Story, R. 571 ; Johnson v. Pennington, 3 
 Green, 188. 
 
284 OF THINGS. 
 
 No. 730. Book 2, part 2, tit 4, chap. 4, sec. 9. No. 734. 
 
 puted when the payment is to be made in so many 
 months? The rule is, to compute by civil or calendar 
 months, (a) 
 
 SECTION 9. OF CONDITIONAL AND UNCONDITIONAl 
 
 CONTRACTS. 
 
 730. A conditional contract is one subject to a con- 
 dition, an unconditional contract is one which does not 
 depend on any condition whatever. 
 
 In its most extended sense, the word condition 
 signifies a clause in an agreement which has for its 
 object to suspend, to rescind, or to modify the princi- 
 pal obhgation ; or, in a will, to suspend, revoke, or 
 modify the devise or bequest. (&) 
 
 731. Conditions stcspend the obligation, when they 
 are to have no effect until they are fulfilled ; as, if I 
 bind myself to pay to you a thousand dollars on condi- 
 tion that the ship Thomas Jefferson shall arrive in the 
 United States from Havre ; the contract is suspended 
 until the arrival of the ship. 
 
 732. Sometimes the non-performance of the condi- 
 tion rescinds the contract ; as, if I sell to you my horse 
 on condition that he shall be ahve on the first day of 
 January, and, before that day, he dies. 
 
 733. A condition may modify the contract, and 
 change it to some extent from what it was before, 
 leaving it in full force as to some parts of it, and of 
 no force as to others ; for example, if I sell to you two 
 thousand bushels of com, upon condition that my crop 
 shall produce that much, and it produces only fifteen 
 hundred bushels, the contract is modified, it is for 
 fifteen hundred bushels and no more. 
 
 734. In a more confined sense, a condition is a 
 future and uncertain event, on the existence- or non- 
 existence of which is made to depend, either the ac- 
 
 (a) Churchill v. Merchants' Bank, 19 Pick. 532 ; Thomas «. Shoemaker, 
 6 Watts & Serg. 179. 
 (J) Inst. 3, 16, 4 ; Voet, ad Pand. 1. 28, t. 7 ; Co. Litt. 201 a. 
 
OF PROPERTY BY CONTRACT. 285 
 
 No. S73. Book 2, part 2, tit. 4, chap. 4, se c. 9, j 1, art. 1. No. 739. 
 
 complishment, the modification, or the rescission of an 
 obligation or testamentary disposition. 
 
 735. A condition is created by inserting the very 
 word condition, or on condition, in the agreement or 
 will ; there are, howevei;, other words that will do so 
 effectually, as proviso, if, etc. (a) 
 
 736. The principal points of view under which con- 
 ditions are considered, are, 1, their several kinds ; 2, 
 their effect; and 8, their performance. These will 
 be discussed in three articles. 
 
 § 1. — Of the kinds of conditions. • 
 
 737. Conditions are of various kinds ; 1, as to their 
 form they are express or implied; 2, as to their object, 
 they are lawful and unlawful ; 3, as to the time when 
 they are to take effect, they are precedent or subsequent; 
 
 4, as to their nature, they are possible or impossible ; 
 
 5, as to their divisibility, they are copulative or dis- 
 junctive ; 6, as to their operation, they are positive or 
 negative ; 7, as to their agreement with the contract, 
 they are consistent or repugnant ; 8, as to their effect, 
 they are resolutary or suspensive. These will be 
 severally considered. 
 
 Art. 1. — Of express or implied conditions. 
 
 738. — 1. When a party enters into a contract, and 
 is desirous to do so upon a condition, he is carefully 
 to have that condition stated in the agreement, so 
 that no mistake in relation to it can take place ; this 
 is called an express condition. 
 
 739. — 2. But there are many conditions which, 
 though not thus expressed, are not the less binding, 
 and these are implied conditions. They exist tacitly 
 in all contracts and wills, although they have not been 
 expressed, qua tacite insunt. These implied conditions 
 may arise from three different causes : 1, from the 
 law, which supplies them ; 2, from the nature of the 
 
 (a) Bac. Ab. Conditions, (A). 
 
286 OF THINGS. 
 
 No. 7*0. Book 2, part 2, tit. 4, chap. 4, sec. 9, § 1, art. 2. No. 740. 
 
 contract, or of the things which are its objects; 3, from 
 the presumed will of the contracting parties or of the 
 testator. 
 
 1st. From the law, as the revocation of a will, in 
 case of after-born children ; that tenant for life shall 
 not commit waste. (a) 
 
 2d. From the nature of the thing, as when the 
 thing which is the object of the agreement does not 
 exist, but may exist at a future time ; as if I sell you 
 the colt which my mare, now pregnant, may bring 
 forth, and she meets with an accident which produces 
 an abortion, it is evident that there has been no sale; 
 the agreement was subject to the tacit or implied con- 
 dition that a colt should be born. 
 
 3d. Implied conditions may arise from the probable 
 intention of the contracting parties, or of the testator. 
 An example is given in the Roman law. If I bequeath 
 to Titius one thousand dollars, upon condition that my 
 ship shall arrive from Europe ; and in another part of 
 my will I add these words: I do hereby add to the 
 legacy given to Titius five hundred dollars; the second 
 legacy is considered as given on the same condition 
 that my ship shall arrive from Europe. 
 
 Again, I bequeath to you one thousand dollars which 
 Titius owes to me, and at my death it is found that 
 Titius owes to me nothing ; or I give to you the sum 
 of one thousand dollars which is in my fire-proof, and 
 at my death there is no money there; the legacy fails 
 in both cases, because they were given upon condition, 
 one that Titius should owe me, and the other that I 
 should have the money in my fire-proof. 
 
 ^rt. 2. — Of lawful and unlawful conditions. 
 
 740. — 1. A lawftd condition is one made in conso- 
 nance with the law ; this must be understood of the 
 law as existing at the time of making the condition, 
 for no change of the law can change the force of the 
 
 (a) Co. Litt. 233, b. 
 
OF PROPERTY BY CONTRACT. 287 
 
 No. 741. Book 2, part 2, tit. 4, chap. 4, sec. 9, J 1, art. 3. No. 743. 
 
 condition. For example, a conveyance was made to 
 the grantee on condition that he should not alien 
 until he arrived at his full age. When the condition 
 was imposed, twenty-five years was the age of 
 majority in the state, and it was afterward changed 
 to twenty-one. After the law was so changed the 
 grantee aliened and made a second conveyance after 
 he attained the age of twenty-five years. The first 
 was declared to be invalid.(a) 
 
 741. — 2. An unlawful condition is one forbidden by 
 law. Unlawful conditions have for their object, 1st, 
 to do somethiug malum in se, or malum prohibitum; 2, 
 to omit the performance of some duty required by 
 law; 3, to encourage such act of omission; 4, to do 
 something contrary to public pohcy; as where a tes- 
 tator gave to his wife a legacy on condition that she 
 should not marry. But a distinction must be observed 
 between a condition and a limitation. When the thing 
 is given until a certain event shall arrive, it is a limi- 
 tation and it is good; as, "I give to my wife five hun- 
 dred dollars a year until she shall marry, or while she 
 remains my widow ;" this ceases on marriage. But 
 if the form of the bequest had been, " I give five hun- 
 dred dollars a year to my wife during her life, pro- 
 vided she shall not marry," this is a condition contrary 
 to the policy of law in respect to marriage, and void. (6) 
 
 .^rt. 3. — Of precedent and subsequent conditions. 
 
 742. — 1. A condition j3recec?e«^ is one which must 
 be performed before the estate vests, or the obligation 
 becomes binding, (c) 
 
 743. — 2. A condition subsequent is one which en- 
 larges or defeats an estate or right already created. 
 
 (a) Dugal V. Fryer, 3 Mis. 40 ; Collins v. Glamorgan, 6 Mis. 169 ; Col- 
 lins V. P. Glamorgan, 5 Mis. 272. 
 
 (h) Bac. Ab. Conditions, (H) ; 2 Bl. Com. 155 ; 10 Co. 41 ; Co Litt 
 236 b ; 1 Vern. 483, n. 
 
 (c) Vanhome v. Dorrance, 2 Ball. 317; Gonrod v. Conrod, 2 Virg. Cas. 
 138. 
 
288 OF THINGS. 
 
 No. 744. Book 2, part 2, tit. 4, chap. 4, sec. 9, } 1, art. 4. No. 745. 
 
 Sometimes it becomes a matter of great importance 
 whether the condition be precedent or subsequent. 
 When a precedent condition becomes impossible by 
 the act of God, no estate or right vests ; but if the 
 condition be subsequent, the estate or right becomes 
 absolute, (a) 
 
 Whether a condition shall be considered as prece- 
 dent or subsequent, depends not upon the form or 
 arrangement of the words, but on the manifest intention 
 of the parties on the fair construction of the agreement. 
 
 Art. 4. — Of possible and impossible conditions. 
 
 ' 744. — 1. A condition is possible when it may be 
 performed, and there is nothing in the laws of nature 
 to prevent its performance. But sometimes a possible 
 condition becomes impossible in consequence of a cir- 
 cumstance added to it ; as, a condition to build a large 
 house in one day. 
 
 745. — 2. An impossible condition is one which can- 
 not be accomplished according to the laws of nature. 
 
 There are impossibiUties which are perpetual and 
 others which are not so, as that a blind man should 
 see. The impossibility is perpetual, when the organs 
 of sight are entirely destroyed ; it is temporary when 
 sight may be restored by a surgical operation. 
 
 Impossibilities are also absolute and personal or 
 merely relative; I cannot, for example, make a picture 
 or a statue like those made by the best artists. When 
 the impossibility is not natural but relative, the con- 
 dition is binding and must be performed ; as if I engage 
 to fulfil a condition to make a watch, the condition is 
 binding, although it is impossible for me to perform 
 it, because it is a thing which may be done by another. 
 But besides, although in my present situation I cannot 
 make a watch, I may learn the art, and in the end 
 make one. Thus most of the impossibilities which are 
 
 (a) Co. Litt. 206, 208 ; Bac. Ab. Conditions, (M) ; Hughes v. Edwards, 
 9 Wheat. 489. See 6 Pet. 691 ; 4 Oowen, 39. 
 
OF PROPERTY BY CONTRACT. 289 
 
 No. 746. Book 2, part 2, tit. i, chap. 4, Bee. 9, ^ 1, art. 3, 6, 7. No. 752. 
 
 not so in their nature, may cease by the aid of art, and 
 the conditions to perform them are valid. 
 
 746. But the condition may have been impossible 
 from the beginning. When such conditions are in 
 faciendo, the contract is void ; when they are in non 
 faciendo, they do not render the contract void, if the 
 impossibility be physical; but they may have that 
 effect when the impossibility is moral or legal. 
 
 747. When the condition becomes impossible by the 
 act of God, it either vests the estate or right, or it does 
 not, according as it is precedent or subsequent, as 
 already explained. (a) When it becomes impossible 
 by the act of the party who imposed it, the estate or 
 right is rendered absolute. (6) 
 
 Art. 5. — Of copulative and disjunctive conditions. 
 
 748. — 1. A copulative condition is one containing 
 several distinct matters, the whole of which are made 
 precedent to the vesting of an estate or right ; in this 
 case the whole of the condition must be performed, or 
 the estate or right can never arise. (c) 
 
 749. — 2. A disjunctive condition is one in which the 
 party to be affected by it has the right to perform one 
 or the other of several alternatives. 
 
 .^rt. 6. — Of positive and negative conditions. 
 
 750. — 1. A positive condition is where the thing 
 which is the subject of it must happen ; as, if I marry. 
 
 751. — 2. A negative condition is where the thing 
 which is the subject of it must not happen ; as, if I do 
 not marry. (J) 
 
 Jlrt. 7. — Of consistent and repugnant conditions. 
 
 752. — 1. A consistent condition is one which agrees 
 with all other parts of the contract, or which by a just 
 construction can be reconciled with every other part. 
 
 (a) Oo. Litt. 206 a, 218 b. 
 
 (b) Bac. Ab. Conditions (M); Eoll. Ab. 420. 
 
 (c) 2 Preem. 186. 
 
 (d) Poth. Ob. n. 200. 
 
 Vol. I. 19 
 
290 OF THINGS. 
 
 No. 753. Book 2, part 2, tit. 4, chap. 4, sec. 9, } 2. No. 756. 
 
 753. — 2. A repugnant condition is one which is 
 contrary to the contract itself; as, if I grant to you a 
 house and lot in fee, upon condition that you shall not 
 alien, the condition is repugnant and void, as being 
 inconsistent with the right granted. («) 
 
 Art. 8. — Of resolutory and suspensive conditions. 
 
 754. — 1. A resolutory condition is one which has for 
 its object, when accomplished, the revocation of the 
 principal obligation; for example, I will sell to you 
 my crop of cotton, if my ship America does not arrive 
 in the United States within six months. My ship 
 arrives within one month, my contract with you is 
 revoked. (&) 
 
 755. — 2. A suspensive condition is one which sus- 
 pends the fulfilment of the obligation until it has 
 been performed ; as, if I bind myself to pay to you a 
 hundred dollars upon condition that the ship Thomas 
 Jefferson shall arrive from Europe. The obligation 
 in this case, is suspended until the arrival of the ship, 
 when the condition having been performed, the con- 
 tract becomes absolute, and it is no longer conditional. 
 A suspensive obligation is in fact a condition prece- 
 dent, (c) 
 
 § 2. — Of the effect of the condition. 
 
 756. Properly speaking, a condition has only the 
 effect to suspend the obligation. To analyze this, let 
 us examine conditions at three different times. 
 
 1 . When the condition is depending, and it is uncer- 
 tain whether it will happen or not. 
 
 2. When it has happened. 
 
 (a) Bac. Ab. Conditions, (L.) See Taylor v. Mason, 9 Wheat. 325; New- 
 kerk v. Newkerk, 2 Caines, 345 ; MoWilliams v. Nisly, 2 S. & R. 513. 
 
 (b) There is a difference between a resolution and a rescission. The for- 
 mer is the act by which a contract which existed and was good is rendered 
 null ; it always presupposes the contract to have been valid, and it is owing 
 to some cause posterior to the agreement that the resolution takes place ; 
 while rescission, on the contrary, supposes that some vice or defect annulled 
 the contract from the beginning. 
 
 (c) Vide post, B. 2, pt. 1, tit. 5, art. 1, c. 10, s. 1. 
 
OF PROPERTY BY CONTRACT. 291 
 
 No. 757. Book 2, part 2, tit. 4, chap. 4, sec. 9, 5 2, art. 1, 2, 3. No. 759. 
 
 3. When it has failed, or it is certain it will not 
 happen. 
 
 Jlrt. 1. — Effect of the condition while it is depending. 
 
 757. Before the happening of a condition precedent, 
 there exists no obligation, it is then only in expecta- 
 tion ; the property in the thing, which is the object of 
 a conditional agreement or a conditional legacy, re- 
 mains with him who is bound to deliver it under a 
 condition. The thing continues at his risk, if it should 
 be entirely lost. If, for example, I bind myself to 
 deliver to you a particular horse, upon condition that 
 you pay to me two hundred dollars within ten days, 
 and before the time expires the horse dies, the contract 
 is dissolved, and the loss is mine. 
 
 Jlrt. 2. — Effect of the condition when performed. 
 
 758. The moment the condition has been performed, 
 it is to be considered as if the obligation had then been 
 made without condition, that is, the obligation which 
 till then was suspended, acquires its full force and 
 becomes binding ; as, if I promise to pay to you one 
 thousand dollars, if you will marry my niece, I become 
 bound to pay to you the money as soon as you have 
 married her. 
 
 The performance of a resolutory condition imme- 
 diately destroys the obligation ; as, for example, the 
 payment of the money mentioned in the condition of 
 a common bond, destroys the obligation. 
 
 Jlrt. 3. — Of the breach of the condition. 
 
 759. In general a breach of a condition in a convey- 
 ance, will forfeit the estate granted, or entitle the party 
 to a reSntry.(a) And if a lease is to become null on 
 the breach of a condition, it becomes so, ipso facto, on 
 the breach of the condition, and cannot be set up by a 
 
 (a) Gray v. Blanchard, 8 Pick. 284 ; Johnson v. Topping, 1 Wend. 388 • 
 Jackson v. Pike, 9 Cowen, 69. ' 
 
292 OF THINGS. 
 
 No. 760. Book 2, part 2, tit. 4, chap. 4, sec. 10. No. 762. 
 
 subsequent recognition, (a) In most cases an action 
 on the agreement may be sustained for damages on 
 the breach of the condition. 
 
 § 3. — Of the performance of conditions. 
 
 760. In general the condition must be literally 
 accomplished, in formd specified, but they may be per- 
 formed by an equivalent,* per xquipoUens, when such 
 appears to have been the intention of the parties ; and 
 this intention is naturally presumed when one of them 
 has not apparently any interest that it should be 
 accomplished in one way rather than another ; for ex- 
 ample, I have promised to pay you one hundred dollars, 
 but before the term of payment has arrived I die; it 
 is of no consequence to you whether the condition be 
 fulfilled by my executor or myself. (6) In a case, how- 
 ever, where the condition must be performed by me 
 personally, as if I promised to marry Maria, then it 
 cannot be performed by my executor. 
 
 761. When the condition consists of several parts, 
 one of which was not possible to be performed at the 
 time of making the agreement, the other must be per- 
 formed, (c) But if the condition be in the disjunctive 
 or alternative, which gives the party the right to per- 
 form the one or the other, and one becomes impossible 
 by the act of God, the whole will, in general, be 
 excused. (6() 
 
 SECTION 10. OF AGREEMENTS WITH A PENAL CLAUSE. 
 
 762. A penal clause in an agreement is, as the word 
 indicates, that which imposes on a person the neces- 
 sity of paying a sum of money or other thing, to 
 punish him for not having executed a prior obligation, 
 or for having delayed in its execution. The object of 
 such a clause is to insure the primary obligation. A 
 
 (a) Kenrick ». Smick. 7 Watts & Serg. 41 
 
 (b) Roll. Ab. 451. 
 
 (c) Bac. Ab. Conditions (Q), 1. 
 
 (d) Bac. Ab. Conditions (Q), 1. 
 
OF PROPERTY BY CONTRACT. 293 
 
 No. 763. Book 2, part 2, tit. 4, chap. 4, sec. 10. No. 765. 
 
 penal clause in an agreement supposes two obligations, 
 one of which is the primitive or principal, and the 
 other the conditional or accessory ; for example, I pro- 
 mise you to tear down a house which obstructs your 
 view, or to pay you one thousand dollars : two distinct 
 promises are here plainly distinguishable; 1st, to tear 
 down my house ; 2dly, to pay to you one thousand 
 dollars. 
 
 763. A penal differs from an alternative obligation; 
 for an alternative obligation is but one in its essence, 
 whUe a penalty always includes two distinct engage- 
 ments, and, when the first is fulfilled, the other is 
 void. 
 
 764. When a breach of a penal agreement has 
 taken place, the obligee has his option, in those cases 
 which cannot be relieved in equity, to require the ful- 
 filment of the first obligation, or the payment of the 
 penalty, when the penalty is considered as liquidated 
 damages. 
 
 765. It is difficult in many cases to distinguish 
 between a penalty and liquidated damages. (a) In 
 general the courts have considered the sum reserved 
 by such agreement to be a penalty rather than as 
 stipulated damages. The sum will be considered as a 
 penalty, and not as stipulated damages, in the follow- 
 ing cases : 
 
 1. When the parties to the instrument have ex- 
 pressly declared the sum to be a penalty, and no other 
 intent can be collected from the instrument. 
 
 2. When, from the face of the instrument, as in the 
 case of a money bond, it is sufficiently clear that a 
 penalty was meant.(6) 
 
 3. When it is doubtful whether the sum was in- 
 tended as a penalty or not, and a certain damage or 
 debt is made payable on the face of the instrument. 
 
 4. When the agreement was evidently made for 
 
 (a) Gowen v. Garrish, 3 Shep. 273. 
 
 (i) Taylor v. Sandiford, 7 Wheat. 13 ; Watts v. Sheppard, 2 Ala. 425. 
 
294 OF THINGS. 
 
 No. 766. Book 2, part 2, tit. 4, chap. 4, sec. 11. No. 769. 
 
 the attainment of another object, to which the sum 
 specified is wholly collateral. 
 
 5. When the agreement contains several matters, 
 of different degrees of importance, and yet the sum is 
 payable for the breach of any, even the least. (a) 
 
 6. When the contract is not under seal, and the 
 damages may be ascertained and estimated ; and this 
 although the parties have expressly declared the sum 
 to be liquidated damages. (&) 
 
 766. A court of equity may reheve from a penalty, 
 after a forfeiture, upon the performance of the contract 
 or offer to perform ; but not in the case where the 
 penal clause is for liquidated damages. 
 
 767. A penal clause will be considered as ascertain- 
 ing liquidated damages, in the following cases ; 
 
 1. When the damages are uncertaiu and not capa- 
 ble of being ascertained by any known rule ; whether 
 the uncertainty lies in the nature of the subject mat- 
 ter itself, or in the peculiar circumstances of the 
 case.(c) 
 
 2. When, from the nature of the case and the tenor 
 of the agreement, it is clear that the damages have 
 been the subject of a fair calculation and adjustment 
 between the parties. ((Z) 
 
 768. The force of the penalty remains unaffected, 
 although the condition may have been partially per- 
 formed ; as, in a case where a penalty was one thou- 
 sand dollars, and the condition was to pay an annuity 
 of one hundred dollars which had been paid for ten 
 years ; the penalty was still valid. (e) 
 
 SECTION 11. OF ILLEGAL AND FRAUDULENT AGREEMENTS. 
 
 769. After having taken a genenal view of the dif- 
 
 (a) Owens v. Hodges, 1 McMuUan, 106. 
 (J) Watts V. Sheppard, 2 Ala. 425. 
 
 (c) Bright V. Rowland, 3 How. Mis. 398. 
 
 (d) 2 Greenl. Ev. ^ 259 ; 2 Story, Eq. ^ 1318. Pearsan v. Williams, 24 
 Wend. 244, S, C. ; 26 Wend. 630 ; Gammond v. Howe, 2 Shep. 250. 
 
 (e) Blackmer v. Admr. of Blackmer, 5 Venn. 355. 
 
OF PROPERTY BY CONTRACT. 295 
 
 No. 769. Book 2, part 2, tit. 4, chap. 4, sec. 11. No. 769. 
 
 ferent kinds of lawful agreements, it will be proper 
 here to consider those which are illegal and fraudulent. 
 When things which are illegal both by the natural 
 and by the civil law are the object of an agreement, as 
 to kill a man, it is evident that they cannot form the 
 object or the matter of a contract, and that no one can 
 lawfully bind himself to perform them. It is a crime 
 to promise or agree to perform such an act, a greater 
 to execute it. The contract is therefore null ; and so 
 far from being compelled to keep his engagement, the 
 promissor is bound to refuse, and the law will not aid 
 either party to complete or fulfil such a contract ; on 
 the contrary, the common law maxim is, ex turpi con- 
 tractu oritur non actio. And if the contract has been 
 executed, and the consideration for doing the unlawful 
 act has been paid, he who paid it cannot recover it 
 back. When the parties are both in fault, the prefer- 
 ence is given to the possessor. This is the rule of the 
 Roman law. Si et dantis et accipientis turpis causd, sit, 
 possessor em potior em esse, et idea repetitionem cessare.{a) 
 The general rule is, that neither courts of law nor 
 equity will interpose to grant relief to the parties, 
 when an illegal agreement has been made, and both 
 parties are in pari delicto. The law leaves them where 
 it finds them, according to the maxim, In pari delicto 
 potior est conditio defendentis et possidendis.(b) 
 
 To this rule there are some exceptions; when a 
 contract has been executed in despite of a statute or 
 rule of public policy prohibiting it, relief will be 
 granted in some cases, not only by setting aside the 
 agreement, but by ordering a repayment of money 
 under it. But relief will never be granted when the 
 parties are in pari delicto, except to jiromote public 
 policy. In these cases it is not the benefit of the party, 
 but of the public, which is regarded. (c) 
 
 (a) Dig. 12, 5, 8. " 
 
 (b) See the copy of a bill filed by a highwayman against another, to com- 
 pel him to account for the profits of robberies committed on joint account. 
 2 Poth. Obi. by Evans. 
 
 (c) See Newbold v. Sims, 2 S. & R. 317. 
 
296 OF THINGS. 
 
 No. 770. Book 2, part 2, tit. 4, chap. 4, sec. 11, § 1, art. 1. No. 771. 
 
 Though formerly a distinction was made between 
 mda prohibita and mcda in se, no such distinction pre- 
 vails now; every act is considered to be illegal in 
 itself, which is expressly forbidden, either by statute 
 or otherwise •,{a) and the law is the same, although 
 the statute may not declare the contract to be void.(&) 
 
 Illegal contracts are void at common law, and be- 
 cause they are so declared" by statute. 
 
 § 1. — Of contracts void at common law. 
 
 770. The contracts void at common law, are, 1, 
 those which are void on account of their immorality ; 
 2, those contrary to public policy ; and, 3, those which 
 are fraudulent. 
 
 jlii. 1. — Of immoral contracts. 
 
 771. — 1. The object of the law is the promotion of 
 good morals and the general happiness; it will not, 
 ttierefore, give its sanction to illicit cohabitation, and 
 a contract which is made in consideration of such 
 cohabitation is void.(c) A great distinction, however, 
 must be perceived between a contract which has for its 
 object such a violation of the law, and one which is 
 intended to repair any injury which may have arisen 
 in consequence of a previous breach of the law in this 
 respect. A contract in consideration of future illicit 
 intercourse is void, but one made under seal to repair 
 the injury done is valid. (c?) 
 
 With the same object of promoting morality, con- 
 tracts made with a woman by letting her a house for 
 the purpose of prostitution, and from the profits of 
 
 (a) Bank of U. S. v. Owens, 2 Pet. 538; Wales v. Brooks, 3 Ves. p. 612 ; 
 Aubert v. Maze, 2 Bos. & Pull. 374. 
 
 (J) Seidenbender v. Charles, 4 S. & R. 159 ; Mitchell v. Smith, 1 Binn. 
 118 ; 17 Verm. 105. But see Strong v. Darling, 9 Ham. 201. 
 
 (c) Winnibineri'. Weisiger, 3 Monr. 35 ; Trovinger v. McBumey, 5 Cowen, 
 253 ; Sherman v. Barrett, 1 McMuUan, 147. 
 
 (d) 1 Story, Eq. Jur. ^ 296 ; Bac. Ab. Obligations, (E) ; Gibson v. Dickie, 
 3 M. & Selw. 463 ; Biunington v. Wallis, 4 R. & Aid. 659 ; Whaley v. Nor- 
 ton, 1 Vern. 483 ; Matthew v. Hanbury, 2 Vem. 187. 
 
OF PROPERTY BY CONTRACT. 297 
 
 No. 772. Book 2, part 2, tit. 4, chap. 4, sec. 11, 5 1, a rt. 2. No. 774. 
 
 which the rent was to be paid,(a) or furnishing her 
 with goods to enable her to carry on her unlawful 
 course, and out of the profits to pay for them,(&) is 
 void. 
 
 772. — 2. A contract made in relation to a libel, 
 will not be enforced; nor a contract for the sale of libel- 
 lous pictures,(c) or for printing a libellous book,((?) 
 because the publication of a libel is a misdemeanor. 
 
 ^rt. 2. — Contracts in violation of public policy. 
 
 773. The law aims at promoting the public good, 
 and whatever encourages public morals, or the inter- 
 ests of society generally, is considered as being the 
 object of public policy. "Whatever contract is made 
 which would violate public policy, if enforced, is there- 
 fore void. Among the contracts which are in violation 
 of public policy, may be classed the following : those 
 which are in restraint of trade ; or lawful marriage ; 
 or which concern marriage brokage ; or wagers and 
 gaming; or trading with a public enemy ; or lending 
 money on usury ; or a contract made against public 
 duty. 
 
 774. — 1. Although an agreement may be founded 
 on a legal and valuable consideration, if its object be 
 a general or total restraint of trade as to one of the 
 parties, it is absolutely void, because it is against policy 
 that an individual should be absolutely idle. (e) But if 
 the restraint be only partial, restricting the party from 
 using his trade within certain reasonable limits of ter- 
 ritory, or portions of time, or confining it to particular 
 persons, the contract would not be invalid as being in 
 restraint of trade. (/) 
 
 (a) Girardy «. Richardson, 1 Esp. R. 13 ; Crisp, v. Ohiirchill, cited in 
 1 Bos. & Pull. 340. 
 
 ib) Jennings v. Throgmorton, R. & M. 251. 
 
 (c) Forbes v. Johnes, 4 Esp. R. 97. 
 
 {d) Gale v. Leckie, 2 Stark. 107. 
 
 («) Mitchell V. Reynolds, 1 P. Wms. 181, 190 ; Nobles v. Bates, 7 Cowen, 
 307 ; Ross. v. Sadybeer, 21 Wend. 166 ; Alger v. Thacker, 19 Pick. 51. 
 
 (/)Hinde v. Gray, 1 Mann. & Gr. 195; S. 0. 1 Scott, N. R. 123; 7 
 Cowen, 307 ; Chappel v. Brookway, 21 Wend. 157. 
 
298 OF THINGS. 
 
 No. 775. Books, parts, tit. 4, chap. 4, sec. U, J 1, art. 2. No. 778. 
 
 The rule which considers a contract made in restraint 
 of trade to be void, does not apply to cases where the 
 party who agrees to the restraint, sells a secret of art, 
 binding himself not to use it, or conveys a patent right 
 to another, who is afterward to have the sole use of 
 the invention. (a) 
 
 775. — 2. A contract in restraint of marriage, by 
 which one of the parties is bound not to marry at all, 
 or to marry a person who is not reciprocally bound to 
 marry the obligor, is void,(&) for it is the interest of 
 society that all persons should be left free to marry. 
 And a condition in a devise that the devisee shall not 
 marry is void, if the condition be subsequent ; but if it 
 be a precedent condition, the devisee will not be en- 
 titled to the devise unless the condition has been per- 
 formed, (c) 
 
 776. — 3. Marriage brokage contracts are void.((/) 
 By marriage brokage is meant the act by which a per- 
 son interferes, for a consideration to be received by him, 
 between a man and a woman for the purpose of pro- 
 moting a marriage between them; the money paid for 
 such service is also called by this name. 
 
 777. — 4. Wagers and gaming are not unlawful by 
 the common law, but they are much discouraged by 
 the courts, and restrained by statute. This subject 
 will be more fully considered elsewhere. 
 
 778. — 5. Trading with an enemy without license is 
 unlawful, and in general contracts made with him 
 are void, for it cannot be allowed that the two govern- 
 ments are at war and enemies, and individuals belong- 
 ing to them are at peace. Partnerships existing 
 between citizens or subjects of two nations which be- 
 come enemies, are dissolved by a war between them. 
 
 (a) Bryson v. Whitehead, 1 Sim. & Stu. 74 ; Vickeryu. Welch, 19 Pick. 
 526. 
 
 (b) Baker v. White, 2 Vera. 215 ; 1 Story, Bq. Jur. § 277. 
 
 (c) 1 Story, Eq. Jur. § 288 ; Co. Litt. 206. 
 
 Id) 1 Fonbl. Eq. k 1, c. 4, s. 10, note (s) ; 1 Story, Eq. Jur. § 263 ; 
 Newl. on Oontr. 469 ; Boynton v. Hubbard, 7 Mass. 118 ; Roberts v. Ro- 
 berts, 3 P. Wms. 74, n. 
 
OF PROPERTY BY CONTRACT. 299 
 
 No, 779. Book 2, part 2, tit. 4, chap. 4, se c. 11, ^ 1, ait. 2. No. 779. 
 
 To this general rule that trading with an enemy makes 
 the contract void, there are several exceptions. 
 
 1st. When the parties have a license from their 
 respective governments, but in such cases they must 
 confine themselves strictly within the limits of the 
 license given. 
 
 2dly. When the party dealing with an enemy does 
 not know that he is such: in this case he may enforce 
 his contract after the peace. 
 
 3dly. When the contract is made from necessity. 
 Ransom bills, which are bills made by the master of 
 a captured vessel during war in favor of the conqueror, 
 on condition that he will let the vanquished ship 
 depart, and give him a safe conduct, will be valid, 
 unless positively restricted by some special law.(«) 
 Other contracts made with an enemy from necessity 
 will also be valid. (6) 
 
 779. — 6. Usurious contracts are unlawful, and in 
 some states they are void. Usury is the illegal profit 
 which is required by the lender of a sum of money, 
 from the borrower, for its use. To constitute a usu- 
 rious contract the following circumstances are requi- 
 site : 1, a loan of money ; 2, an agreement that the 
 money lent shall be returned at all events ; 3, that 
 more than legal interest shall be paid. 
 
 1st. There must be a loan of money in contempla- 
 tion of the parties, and if there be a loan, however 
 disguised, it is suflBcient ; but a bonafde sale of a bill 
 of exchange or promissory note is not usurious, al- 
 though it may be sold below its value. 
 
 2dly. There must be an agreement that the princi- 
 pal shall be returned at all events, for if the return 
 depend upon a contingency, there can be no usury ; as 
 in the case of insurance, annuities, and bottomry, 
 which are all lawful whatever rate of interest may be 
 charged, if there be no fraud. 
 
 (a) 1 Kent, Com. 105, 4th ed.'; Maissonaire v. Keating, 2 Gallis, 336. 
 
 (b) Story on Bills, § 101, 103 ; Bayl. on Bills, c. 2, s. 9 ; 6 Taunt. 237 : 
 8 T. R. 548. 
 
300 OF THINGS. 
 
 No. 780. Book 2, part 2, tit. 4, ch^. 4, sec. 11, ^ 1, art. 2. No. 780. 
 
 3dly. The agreement must be to take more than 
 lawful interest for the use of the money. There must 
 be an agreement to take such unlawful interest, for a 
 mistake in fact, as the making a miscalculation, will 
 not render the contract usurious so as to avoid it, but 
 the debtor will be relieved as to the surplus. A mis- 
 take of law will not, however, excuse the lender, be- 
 cause every one is bound to know the law. (a) As to 
 the amount of interest which may be taken, it may be 
 stated that any amount not allowed by the law of the 
 place where the contract is made, will render the con- 
 tract usurious, and if void .there, it will be void every 
 where. (6) Any interest, however exorbitant, which 
 can be lawfully charged at the place where the con- 
 tract was made, will not be usury. 
 
 780. — 7. Contracts made for the purpose of indem- 
 nifying a person for doing an act for which he could 
 be indicted, as, the commission of an assault and bat- 
 tery, the publication of a libel, the concealing of a 
 felony, and the like, are absolutely void. And so is an 
 agreement to compensate a public officer for doing an 
 act which is forbidden by law, or omitting to do one 
 which the law commands, (c) But where the interest 
 is not to induce the officer to neglect his duty, but to 
 test a legal right, an agreement with an officer to in- 
 demnify him for not executing an execution, was held 
 to be good.((Z) All contracts which are founded on a 
 violation of public trust and confidence, (e) and agree- 
 ments for the maintenance of suits, or for champer- 
 ty,{/) embracery,(g) bribery, and extortion, are void. 
 
 (a) Lloyd v. Scott, 4 Pet. 205 ; Comyn on Usury, s. 2 ; Buckley v. Guid- 
 land, Cro. Jac. 678. 
 
 (i) For the laws regulating the rates of interest in the several states of the 
 Union, see Bouv. L. D. h. t. 
 
 (c) Doty V. Wilson, 15 John. 381 ; Kneeland v. Rogers, 2 Hall, 579; 
 Hodson V. Wilkins, 7 Greenl. 113. 
 
 (d) Clarke v. Foxcroft, 6 Greenl. 296. 
 
 (e) Fuller v. Dame, 18 Pick. 472 ; The Vauxhall Bridge v. Earl Spencer, 
 2 Madd. R. 356. 
 
 (/) Thurston v. Percival, 1 Pick. 415 ; Beldin v. Pitkin, 2 Gaines, 147. 
 (g) 4 Bl. Com. 140. 
 
OF PROPERTY BY CONTRACT. 301 
 
 No. 781. Book 2, part 2, tit. 4, chap. 4, sec. 11, ^ 1, art. 3. No. 782. 
 
 Art. 3. — Of fraudulent contracts. 
 
 781. To obtain justice is the object of the law, con- 
 sequently fraud is what it most abhors, and if any con- 
 tract be tainted with fraud it declares it void, what- 
 ever may be the form in which it may be clothed. 
 But when performed, the contract will be binding on 
 the party who has been guilty of the fraud, if the other 
 party insists, because no one is allowed to take advan- 
 tag'e of his own wrong, (a) 
 
 Indeed, a contract by which a party should agree 
 that it should be valid notwithstanding a fraud, would 
 be void. (5) "Qy fraud is meant any trick or contri- 
 vance employed by one person to induce another to 
 fall into an error, or to detain him in it, so that he 
 may make an agreement contrary to his interest. The 
 fraud may consist either, first, in the misrepresenta- 
 tion, or, secondly, in the concealment of a material 
 fact, and these form the essentials of fraud. Thirdly, 
 frauds as to third persons. 
 
 1. Of misrepresentations. 
 
 782. Misrepresentation is the statement made by one 
 party to a contract to the other, that a thing relating 
 to it is in fact in a particular way, when he does not 
 know it is so, and in truth it is not as represented. In 
 order to avoid the contract the representation must 
 have been both false and fraudulent; and when a man 
 asserts that to be true, which he does not know to be 
 so, and which in fact is false, he is guilty of stating a 
 falsehood which bears all the features of fraud. (c) The 
 fraud must work an injury, for damage without fraud, 
 or fraud without damage, is not sufiicient to give a 
 
 {a) Steel v. Brown, 1 Taunt. 381 ; Taylor v. "Weld, 5 Mass. 116 ; Deady 
 V. Harrison, 1 Stark. 60. 
 
 (b) Clef des Lois Romaines, verbo Dol. For the different kinds of fraud, 
 see B 2; part 1, t. 4, c. 2, s. 1, H; B. 2, pt. l,t. 4, c. 3, s. 6. 
 
 (c) Schenieder v. Heath, 3 Camp. 506 ; Adamson v. Jarvis, 4 Bing. 66 ; 
 3 Com. 413 ; Cochran v. Cummings, 4 Dall. 250. 
 
302 OF THINGS. 
 
 No. 783. Book 2, part 2, tit. i, chap. 4, sec. 11, § 1, art. 3. No. 783. 
 
 cause of action. (a) But every misstatement will not 
 be considered fraudulent so as to avoid the contract ; 
 when a misrepresentation has been made without.fraud, 
 respecting a matter which the person to whom a com- 
 munication was made, and who had an interest in it, 
 should not haVe taken upon trust, but was bound to 
 inquire into himself, and had the means of ascertaining 
 the truth thereof, there would be no responsibility. (&) 
 Nor will such a misrepresentation be sufficient to set 
 aside the contract, when the party was not deceived; 
 as if the seller of a piece of cloth should represent it to 
 be black, when in fact it was gray, and the buyer saw 
 it. And, on the other hand, the representation may 
 appear to be true, but if false in fact, it will make the 
 party responsible ; as when a man wanted credit and 
 represented he was worth a certain sum of money of 
 his own property, and referred to his father, and, on 
 being asked, the father said he had, when in truth he 
 had lent him the money, the father was held responsi- 
 ble for the false representation. (c) 
 
 2. Of concealment. 
 
 783. Concealment is the unlawful suppression of any 
 fact or circumstance, by one of the parties to a con- 
 tract, from the other, and which in justice ought to be 
 made known. (J) It is only when the party is bound 
 in justice to divulge the fact that silence or conceal- 
 ment is fraudulent ; for the general rule is, in other 
 cases, that mere silence will not avoid the contract, 
 although it may operate as an injury to the party 
 from whom the fact is concealed; as, for example", where 
 Peter knowing there is a mine in Paul's land, buys the 
 land from Paul without disclosing the fact to him, 
 knowing, at the same time, that Paul is ignorant of 
 it.(e) But the concealment of a material fact, which 
 
 a) 3 Bulstr. 95. 
 
 b) 1 Chit. Pr. 836. 
 
 c) Cobbett V. Brown, 5 Bingh. 35. 
 
 (d) 1 Ponbl. Eq. B. 1, c. 3, § 4, note (n.) ; 1 Story, Eq. Jur. $ 207. 
 
 (e) Fox V. Makreth, 1 Bro. 0. 0. 420. 
 
OF PROPERTY BY CONTRACT. ' 303 
 
 No. 784. Book2, parts, tit. 4, chap. 4, sec. 11, 52. No. 786. 
 
 the party is bound to disclose, as in the cases of insur- 
 ance, will vitiate the contract, although such conceal- 
 ment may only be the effect of negligence, inadver- 
 tence or mistake. 
 
 3. Of fraud upon third persons. 
 
 784. When treating of the effect of agreements 
 with regard to third persons this subject was con- 
 sidered; it is not requisite that it should be again 
 examined here. (a) 
 
 § 2. Of contracts void by statute. 
 
 785. Contracts in violation of a statute are utterly 
 void, whether the subject matter or the consideration 
 of the contract be forbidden by law. Sometimes a 
 statute expressly prohibits or enjoins an act ; at other 
 times the act is prohibited, or a prohibition is enjoined 
 by implication only; in either case a contract in viola- 
 tion of its provisions is void.(&) But to render the 
 contract void, it must violate the provisions of the 
 statute, for if it be only connected with some inciden- 
 tal matter which is illegal, and not in violation of the 
 terms of the statute, it will be valid; for example, 
 where the plaintiff sold tobacco, without first obtain- 
 ing a license as required by the statute, it was held he 
 could sue the buyer, for the sale was wholly indepen- 
 dent and collateral to the illegaKty.(c) Again, if an 
 act in violation of law has already been committed, 
 a subsequent agreement, which, though founded on 
 such breach of the law, constituted no part of the 
 original inducement or consideration of the illegal act, 
 will be valid. («/) 
 
 786. Sometimes a contract is made between two 
 parties to enable one of them to violate the p]:ovisions 
 
 (a) Ante, B. 2, part 1, t. 4, c. 3, s. 6, n. 657. 
 
 (b) Fergusson v. Norman, 5 Bing. 80 ; De Bignis v. Armistead, 10 Bins. 
 
 107. Ob 8 
 
 (c) Johnson ». Hudson, 11 East, 180 ; Wetherell v. Jones, 3 B. & A. 221. 
 (c?) Armstrong u. Toler, 11 Wheat. 258, 271, 276; 1 Wheat. 408; The 
 
 George, 2 Wheat. 278; Connan v. Bryce, 3 B. &. Aid. 179. 
 
304 OF THINGS. 
 
 No. 787. Book 2, part 2, tit. 4, chap, i, sec. 11, § 2. No. 788. 
 
 of a statute, and sometimes an act is done by one 
 without any agreement as to the violation of the 
 statute, which enables the other to break a penal law; 
 as when a man lends another money to lay an unlaw- 
 ful wager. In such case, if the lender lends it to 
 enable the borrower to lay the wager, on condition he 
 shall so lay it, the transaction is unlawful ; but if it 
 be lent without any sucTi understanding, and after- 
 ward the borrower uses it to lay the unlawful wager, 
 then the loan is lawful ; it being a rule that when the 
 plaintifi" can make out his case without showing that 
 he violated the law, he shall recover, (a) 
 
 787. Some statutes are directly prohibitory, and 
 their provisions are conditions precedent, directly af- 
 fecting the contract; others, on the contrary, are 
 merely directory in their terms ; and these terms, 
 when not complied with, are only collateral to the 
 agreement; in these last the contract is not void. For 
 example, the law requires that the assignment of a 
 patent or a deed of conveyance shall be recorded, yet 
 if it be not done, the assignment in the one case, or 
 the deed in the other, will not be void as between the 
 parties. (&) 
 
 788. When the contract is entire and any part of it 
 is unlawful the whole is void; but if the agreement be 
 to do two acts, for a sufficient and lawful consideration, 
 and one of them be void and capable of separation from 
 the other acts which are lawful, the contract is bind- 
 ing as to the latter acts, and void for the remainder. 
 And it matters not whether the part which is void be 
 declared so by statute, or made so by the common 
 law, unless indeed the statute declares expressly such 
 a contract to be void,(c) though once the contrary 
 doctrine was entertained, and it was said that when a 
 
 [a) Swan v. Scott, 11 S. & R. 155 ; Thomas v. Brady, 10 Penn. St. R. 
 170; Faikney J). Reynous, 4 Burr. 2069; Petrie v. Haney, 3 T. R. 419; 
 Garsan v. Rambert, 2 Bay, 560 ; Barjeau v. Walmsley, 2 Strange, 1249. 
 
 {b) Brooks v. Ryan, 2 Story, 542. 
 
 (c) Mouys V. Leake, 8 T. R. 411; Doe v. Pitcher, 6 Taunt. 359. 
 
OF PROPERTY BY CONTRACT. 305 
 
 No. 789. Book 2, part 2, tit. 4, chap. 5, Bee 1. No. 791. 
 
 contract violated a statute, although it was divisible, 
 it was void. (a) 
 
 CHAPTER v.— OF THE EXTINCTION OF OBLIGATIONS. 
 
 789. Having explained how agreements are formed, 
 what is required for their validity, what things may be 
 the subject of agreements, what are their effects, their 
 different kinds and their modification, we will next 
 consider how they are extinguished. 
 
 790. There are numerous ways of extinguishing 
 or annulling agreements, either in whole or in part. 
 They may be reduced to the following : 
 
 1. By the mutual consent of the parties, under 
 which class may be placed, 1, release ; 2, compromise; 
 3, renewal of the obligation, either by the debtor him- 
 self, called a novation, or by a third person, called a 
 delegation ; 4, accord and satisfaction. 
 
 2. Sometimes by one of the parties alone, when one 
 has the power to declare the contract at an end. 
 
 3. The accomplishment of the obligation or pay- 
 ment. 
 
 4. By confusion, when the duty to pay and the right 
 to receive is in the same person. 
 
 5. By loss of the thing. 
 
 6. By judgment, or an award which declares the 
 contract null. 
 
 7. By the death of the creditor or the debtor. 
 
 8. By set off, or defalcation. 
 
 9. By lapse of time. 
 
 10. By neglect to give notice. 
 
 11. By legal bars. 
 
 SECTION 1. OF EXTINGUISHMENT OF CONTRACTS BY THE ACT 
 
 or BOTH PARTIES. 
 
 791. It is evident that the parties may at any time 
 change their contract by mutual consent, for although 
 
 (a) Norton v. Simms, Hob. 14. 
 
 Vol. I. 20 
 
306 OF THINGS. 
 
 No. 792. Books, part 2, tit. 4, chap. 5, sec. 1, § 1, art. 1. No. 793. 
 
 the agreement is a law to them, it is subject to their 
 joint will to annul, change or modify it, as it was to 
 make it. A contract may be extinguished by the acts 
 of the parties in several ways. 
 
 § 1. — By release. 
 
 792. A debt, obligation or engagement may be 
 extinguished by a release. A release is a discharge of 
 a right of action, which the releasor has against the 
 releasee. Releases may be considered, 1, as to their 
 form ; 2, their different kinds ; 3, their effect ; 4, by 
 whom they are to be made ; 5, to whom. 
 
 Art. 1. — As to the form of a release^ 
 
 793. The operative words of a release are remise, 
 release, quit-claim, discharge and acquit; but other 
 words will answer the purpose. (a) 
 
 The subject which is to be released must be specially 
 mentioned, or such general terms must be used that 
 they include it. Littleton says a release of all demands 
 is the best and strongest release. (6) Lord Coke, on 
 the contrary, says claims is a stronger word.(c) 
 
 A covenant not to sue has, in general, the effect of a 
 release, as between the covenantor and the covenantee; 
 but it does not operate as a release to the joint obligors 
 with the covenantee, they being liable as if it had not 
 been given. (J) 
 
 The release must be under seal;(e) a parol release, 
 without payment or satisfaction, is no extinguishment 
 of the debt, for there does not appear to be any con- 
 sideration for it.(/) 
 
 (a) Sid. 265 ; Oro. Jac. 696 ; 9 Co. 52. 
 
 [I) ^ 508. 
 
 (c Co. Litt. 291 b. 
 
 (d) Crane v. Ailing, 3 Green, 423 ; Durell u. Wendell, 8 N. H.Eep. 369. 
 
 (e) Bender v. Sampson, 11 Mass. 42. See Johnson v. Kerr, 1 S. & B- 
 
 25. 
 
 (/) Sigoumey v. Sibley, 21 Pick. 101 ; Miller v. Hemler, 5 Watts & Serg. 
 
 486. 
 
OF PROPERTY BY CONTRACT. 307 
 
 No. 794. Book 2, part 2, tit. 4, chap. 5, sec. 1, § 1, art. 2, 3. No. 795. 
 
 Art. 2. — Different kinds of releases. 
 
 794. Releases are either express or implied. JEx- 
 press releases are made by deed, by which the creditor 
 distinctly discharges the debtor from all obligation. 
 A release may be implied from the acts of the creditor; 
 as when he releases one of two joint obligors or joint 
 debtors, the law presumes he ' intends to discharge 
 both, because if one only were discharged, and a re- 
 covery should be had against the other, the latter 
 could claim contribution from the one who had been 
 discharged, and thus, circuitously, he could be made 
 to pay the debt, or a part of it, from which he had 
 been released. A release will also be implied where 
 the creditor delivers to the debtor the obligation he 
 holds against him ; as he then will be presumed to 
 have given him the debt. When a debtor has pledged 
 an article as security for the debt, the return of the 
 pledge to the debtor will not be presumed as a release 
 of the debt. 
 
 Art. 3. — Of the effect of a release. 
 
 795. A release has the effect to discharge the re- 
 leasee and all persons who are jointly bound to the 
 releasor with him, also all their heirs, executors and 
 administrators, and all their joint and several estates. 
 After a release has been made, the releasee may be a 
 witness, if there be no other cause for his being re- 
 jected but his interest. 
 
 In general a release will be restrained by the par- 
 ticular occasion of giving it ;(«) for example, a release 
 by the creditor will discharge all demands which are 
 mentioned in it, as being due or owing by the debtor 
 to the creditor in his own right, but not to demands 
 due to him as executor, unless they are expressly 
 stated. (6) 
 
 (fl) 3 Lev. 273 ; Palm. 218. 
 
 {b) Wiggins t). Norton, K. M. Oharlt. 15. 
 
308 OF THINGS. 
 
 No. 796. Book 2, part 2, tit. 4, chap. 5, sec. 1, J 2. No. 799. 
 
 Art. 4. — By whom the release must he made. 
 
 796. The creditor has alone the power to make a 
 release in his own right. None but he can discharge 
 the obligation ; but he may do this personally or by 
 his agent. 
 
 A release by one partner of the firm, binds all the 
 partners; (a) and so a release by one of several joint 
 creditors will bind them all; (6) and a release by a 
 husband, for the personal abuse of his wife, is a good 
 bar to the joint action of the husband and wife for the 
 same cause. (c) 
 
 Art. 5. — To whom a release is to he made. 
 
 797. It is evident that a release can be made to the 
 debtor only ; it is however considered as made to him, 
 although it may be to his guardian, committee, tutor, 
 curator, or other person lawfully representing him. 
 
 When there are several joint debtors a release to 
 one will be a release to them all,((Z) but then the re- 
 lease must be under seal.(e) 
 
 § 2. — By compromise. 
 
 798. The parties, as has been already observed, 
 may change or alter their contracts ; they may, there- 
 fore, where there is a claim of right on one side and 
 denial upon the other, settle the matter in dispute by 
 a compromise, which is an agreement between two or 
 more persons, who, to avoid a law suit, amicably settle 
 their differences, on such terms as they can agree 
 upon. 
 
 799. The following are the principal points relating 
 to compromises : 
 
 1. Its form, which may be in writing or not in 
 
 (a) Pierson v. Hooker, 3 John. 68 ; Salmon v. Davis, 4 Binn. 375. 
 
 (J) Kimball «. Wilson, 3 N. H. Rep. 96. 
 
 (c) Southworth v. Packard, 7 Mass. 95. 
 
 (rfjUnited States v. Thompson, Gilp. 614 ; Bunson v. Kincaid, 3 Pennsyl. 
 57 ; Willings v. Consequa, Pet. 0. C. 301 ; Sed vide Blakey v. Blakey, 2 
 Dana, 460. 
 
 (e) Shaw v. Pratt, 22 Pick. 305 ; Smith v. Bartholomew, 1 Met. 276. 
 
OF PROPERTY BY CONTRACT. 309 
 
 No. 799. Book 2, part 2, tit. 4, chap. 5, sec. 1, ^ 2, No. 799. 
 
 writing; if in writing, it may be under seal or not 
 under seal. 
 
 2. The subject of the compromise must be some- 
 thing uncertain, for if it be certain, a payment of a part 
 will not discharge the rest, for want of a consideration. 
 The compromise of a doubtful claim is a good con- 
 sideration to uphold the contract, and the merits and 
 demerits of the several claimants will not be inves- 
 tigated for the purpose of setting aside a compromise 
 otherwise fairly made. (a) 
 
 3. As to the parties, it must be made by one having 
 a right and capacity to enter into the contract. When 
 there is but one person on each side, it must be made 
 by him or his authorized agent. 
 
 A compromise may be made by a partner so as to 
 bind the firm ; and though a partner cannot in general 
 enter into a contract under seal, by which he will 
 bind the firm to perform certain acts, yet he may 
 release or compromise an obligation under seal, where 
 the firm have no act to perform. (6) 
 
 Without a special authority, an attorney has no 
 right, strictly speaking, to make a compromise for his 
 client; yet the court will not be inclined to disturb 
 such a compromise when there has been no fraud nor 
 surprise, (c) particularly when the principal has ac- 
 quiesced in it for years. (J) 
 
 4. As to its effect, the compromise puts an end to 
 the suit, if it be proceeding, and bars any suit which 
 may be afterward instituted for the same cause. But 
 it will be set aside by chancery, or at law, when it 
 has been obtained by fraud or misrepresentation. (e) 
 
 (a) Union Bank v. Geary, 5 Pet. 114 ; Fisher v. May, 2 Bibb, 449 ; 
 Worrall's Aeoounts, 5 Watts & Serg. Ill ; Hoge v. Hoge, 1 Watts, 216, 
 217 ; O'Keson v. Barclay, 2 Pennsyl. 531. 
 
 (J) Bruen v. Marquand, 17 John. 58 ; Smith v. Stone, 4 Gill & John. 310 ; 
 Pierson v. Hooker, 3 John. 68. 
 
 (c) Holker v. Parker, 7 Cranch, 436. 
 
 (d) Mayer v. Foulkrod, 4 Wash. 0. C. 511. 
 
 (e) Hoge V. Hoge, 1 Watte, 163; Anderson v. Bacon, 1 Marsh. 51; 
 Mosby V. Leeds, 3 Call, 439. 
 
310 OF THINGS. 
 
 No. 800. Books, part 2, tit. 4, chap. 5, sec. 1, ^ 3. No. 803. 
 
 § 3. — Of the extinguishment of the contract by renewal. 
 
 800. When a new debt is substituted bj the parties 
 for an old one, this is called in the civil law by the 
 convenient term of novation. The old debt is ex- 
 tinguished by the act of the parties. A novation may 
 be made in three different ways, which form three 
 distinct kinds of novations. 
 
 801. — 1. The first takes place, without the inter- 
 vention of any new person, where a debtor contracts 
 a new engagement with his creditor, in consideration 
 of being liberated from the former; as, if I owe to you 
 a thousand dollars on a note which falls due on the 
 first day of January, and I give to you a new note on 
 that day payable on the first day of April, and you 
 deliver to me the first note. Here is a contract by 
 which not only the first note is discharged, but all the 
 collateral engagements connected with it; if you had a 
 guarantee of that note, it will not be a guarantee of 
 the last. This kind of novation has no appropriate 
 name, and is called simply novation. 
 
 802. — 2. The second kind of novation is that which 
 takes place by the intervention of a new debtor, where 
 another person becomes debtor instead of the former 
 debtor, and is accepted by the creditor, who thereupon 
 discharges the first debtor. The person thus becoming 
 debtor for another, who in consequence is discharged, 
 is called expromissor, and this kind of novation, ex- 
 promissio. 
 
 803. — 3. The third kind of novation takes place 
 by the intervention of a new creditor, when a debtor, 
 for the purpose of being discharged from his original 
 creditor, by order of that creditor, contracts some 
 obligation in favor of a new one. 
 
 It must be remembered that there can be no nova- 
 tion unless the old debt is absolutely discharged; 
 whether it be so discharged or not depends upon the 
 intention of the parties. If one indebted to another 
 
OF PROPERTY BY CONTRACT. 311 
 
 No. 804. Books, pan 2, tit. 4, chap. 5, sec. 1, 53. No. 804. 
 
 by simple contract give his creditor a promissory note, 
 made by himself for the same sum, without any new 
 consideration, the new note shall not be deemed a 
 satisfaction of the original debt, unless so intended 
 and accepted by the creditor, (a) But if he transfer 
 the new note, he cannot sue on the original contract 
 as long as the note is out of his possession. (6) 
 
 When a security of a higher nature is given it ex- 
 tinguishes the original obligation ; as, where a bond is 
 given for a simple contract debt, the latter is extin- 
 guished, (c) But in order to have that effect, it must 
 be between the same parties : a bond by one partner 
 in the partnership name, which bound only the part- 
 ner who gave it, does not extinguish a partnership 
 debt.(tZ) And to have this beneficial effect, the bond 
 must be taken for the debt itself, and not as a colla- 
 teral security, (e) 
 
 804. But besides this mode of extinguishing a debt 
 by novation, properly speaking, there is another way 
 of doing it by what the civilians call a delegation, which 
 is indeed a kind of novation, and is the substitution of 
 a new debtor, who becomes bound to pay the creditor, 
 sometimes unknown to him, in the place of the old 
 debtor, who is discharged. This substitution may 
 take place in several ways: 
 
 1. Between the creditor and his debtor, without 
 the consent of the third person who becomes bound in 
 the place of the first debtor. I owe you one thousand 
 dollars, and, in order to acquit my obligation, I trans- 
 fer to you my right to receive the same sum which is 
 due to me by Titius. The effect of this agreement 
 
 (a) Witherby v. Mann, 11 John. 513 ; Maddin v. Edmondson, 10 Mis. 
 643 ; 15 S. & R. 162 ; 1 Hill, N. Y. Rep. 516 ; 2 Wash. 0. 0. 191; Pet. 
 C. 0. 266 ; 6 W. & S. 165; 9 Watts, 273 ; 10 Pet. 532. 
 
 ib) Steamboat Charlotte v. Lumm, 9 Mis. 64 ; 1 Pet. 267. 
 
 (c) Settle V. Davidson, 7 Miss. 704 ; Van Vliet v. Jones, 1 Spencer, 340 ; 
 Gardiner v. Hurst, 2 Rich. 601. 
 
 (d) Bond V. Aitken, 6 Watts & Serg. 165 ; riemming v. Lawhom, Dud- 
 ley, So. Car. 360 ; but see Jacobs v. McBee, 2 McMullan, 348. 
 
 (c) Day V. Geal, 14 John. 404. 
 
312 OF THINGS. 
 
 No. 805. Book 2, part 2, tit. 4, chap. 5, sec. 1, § 4. No. 805. 
 
 will depend upon our intentions. If you have not dis- 
 charged my obligation, it is merely an authority which 
 I have given to you, and which you have accepted, but 
 still I remain liable to you; if Titius does not pay you 
 I am liable. This is the common case of the transfer 
 of a bill of exchange or promissory note, endorsed by 
 the debtor. 
 
 2. But if you accept- such bill or note made by 
 Titius, and endorsed by him in blank, and accept him 
 as your only debtor, then my debt is extinguished 
 and there is a novation. 
 
 § 4. — Of extinguishment by accord and satisfaction. 
 
 805. The fourth way of extinguishing an obligation 
 by the act of both parties, is by accord and satisfaction, 
 which is the settlement of a dispute or the satisfaction 
 of a claim, by an executed agreement between the 
 party injuring and the party injured. 
 
 Accord and satisfaction in some respects resemble 
 the contract of sale ; dare in solutum, est quasi venders. 
 There is, however, some difference; 1, the contract of 
 sale may be perfect without actual delivery of the 
 thing sold, but accord is not sufficient without satisfac- 
 tion ; 2, when a person pays what he supposed he was 
 owing, and he does not owe so much, he may recover 
 the excess, in an action for money had and received ; 
 not so when property other than money has been 
 given in payment: example, I owe you truly one 
 hundred dollars, but we both supposed the debt to be 
 two hundred dollars; instead of paying you the money 
 I give you a horse estimated at two hundred dollars, 
 as an accord and satisfaction of the debt, I cannot re- 
 cover the difference ; on the other hand, where a debt 
 has been discharged by accord and satisfaction for less 
 than its amount, an action cannot be supported for 
 the balance; (a) 3, he who sells goods which are not in 
 
 (a) Stafford v. Bacon, 2 Hill, 253 ; S. 0. 25 Wend. 384 ; Williams v. 
 Stanton, 1 Root, 426 ; Blinn v. Chester, 5 Day, 360. 
 
OF PROPERTY BY CONTRACT, 313 
 
 No. 806. Book 2, part 2, tit. 4, chop. 5, sec. 2, 3. No. 808. 
 
 his possession does not guarantee the title, (a) but it 
 would be no satisfaction unless the title to the thing 
 actually passed. (6) The consideration of this subject 
 will bo resumed in the sequel. 
 
 SECTION 2. OF THE EXTINCTION OF THE CONTRACT BY THE 
 
 ACT OF ONE OF THE PARTIES. 
 
 806. Sometimes a contract may be annulled by one 
 of the parties, as where there is a special clause in the 
 agreement that one of the parties shall have the power 
 to annul the agreement within a certain time; or when 
 it results from the nature of the contract, as when 
 two persons are in partnership and no time is limited 
 for its duration, either party may annul it at pleasure. 
 Again, a mere mandate or letter of attorney may be 
 revoked by the constituent at any time. 
 
 SECTION 3. — OF PAYMENT. 
 
 807. The most natural way of extinguishing an ob- 
 ligation which a man has contracted, is doubtless to 
 fulfil his promise by delivering to his creditor the 
 thing due, if the obligation consist in delivering the 
 thing ; and in fulfilling the act promised, if the obliga- 
 tion consist in doing a thing. This is what is called 
 paying, and which the Latins energetically called 
 solvere, to unhind one's self, to untie the knot or lien of 
 the obligation : solvere dicimus eum qui fecit quod focere 
 promisit. But in a more general acceptation of the 
 word, are included all manner of extinguishing obli- 
 gations by which the creditor is or ought to be satis- 
 fied, and the debtor becomes free. 
 
 808. To understand this subject it will be proper to 
 consider, 1, by whom the payment is to be made ; 2, 
 to whom ; 3, what is to be paid ; 4, when the payment 
 is to be made ; 5, where it is to be made ; 6, the efiect 
 of the payment; 7, how payment is to be appro- 
 
 (a) Cro. Jac. 197. 
 
 {b) Poth. Vente, n. 602, 604. 
 
314 OF THINGS. 
 
 No. 809. Book 2, part 2, tit. i, chap. 5, sec. 3, § 1, 2, art. 1. No. 811. 
 
 priated ; 8, effect of a tender and payment of money 
 into court. 
 
 § 1. — By whom the payment is to be made. 
 
 809. The payment maybe made by the real debtor 
 or other persons from whom the creditor has a right 
 to demand it ; an agent may make payment for his 
 principal, and any mode of payment by the agent, ac- 
 cepted and received as such by the creditor, as an 
 absolute payment, will have the effect to discharge the 
 principal, whether known or unknown, and whether it 
 be in the usual course of business or not. 
 
 When several persons are liable for the same debt, 
 payment may be made by any one, and it will dis- 
 charge all the rest, (a) because the creditor is entitled 
 to one satisfaction only. 
 
 The moment the creditor, as such, has received 
 payment, it is clear he can have no further claim ; if, 
 therefore, a third person, a stranger, pay the debt, 
 without the consent of the debtor, but in his name, the 
 payment will be good. (6) 
 
 § 2. — To whom payment ia to be made. 
 
 810. To be valid, the payment must be made to the 
 creditor himself, or his assigns, if known, or to some 
 person authorized by him, either expressly or by im- 
 plication. 
 
 jlrt. 1. — Of payment to the true creditor. 
 
 811. By creditor must be understood not only the 
 person with whom the contract was made, but also 
 his executors, administrators and assigns. 
 
 To make a valid payment to the creditor himself, 
 or to those who represent him, he must at the time be 
 capable of administering his estate, he must be sui 
 juris. If therefore the creditor was, at the time of the 
 
 (a) Boggs V. Lancaster Bank, 7 Watts & Serg. 331. 
 
 (b) Harrison v. Hicks, 1 Port. 423. See Keller v. Leib, 1 Pennsyl. 220. 
 
OF PROPERTY BY CONTRACT. 315 
 
 No. 812. Book 2, part 2, tit. 4, chap. 5, sec. 3, j 2, art. 2. No. 813. 
 
 payment, either a minor or a married woman, or one 
 found non compos by inquisition, a payment to bim 
 would be void, unless perhaps the money so paid had 
 gone to the actual use of such creditor, as if it had 
 been applied to pay his debts, which the guardian, the 
 husband, or the committee, were bound to pay. 
 
 In case the original creditor should have assigned a 
 chose in action, not assignable at law, as a book debt, 
 or a note not negotiable, a payment to the assignor 
 without notice of such assignment is good. 
 
 When the debt is due to severaV joint creditors, pay- 
 ment to one is in general a valid payment. (a) 
 
 ^rt. 2. — Of those who are authorized hy the creditor to receive 
 
 payment. 
 
 812. When a payment is made to those whom the 
 creditor has appointed to receive the money for him, 
 it is considered as if made to himself. It therefore 
 follows : 
 
 1. That it is of no consequence who the agent or 
 attorney in fact may be, whether he be an infant or a 
 feme covert. 
 
 2. That the authority given must be by one sui 
 juris, for if an infant or married woman were to give 
 a letter of attorney to receive a debt, payment to the 
 attorney would not be good, because the debtor could 
 not have made a valid payment to such infant or mar- 
 ried woman. 
 
 813. The authority given to an attorney expires by 
 the death of the constituent ; if a woman, by her mar- 
 riage ; or if given to an attorney at law, it ends with 
 a substitution of another. (6) But till notice of the 
 change or implied revocation, payment to the attorney 
 would be good.(c) 
 
 (a) Scott V. Trent, 1 Wash. 77; Marrow v. Starke, 4 J. J. Marsh, 367. 
 
 (h) Weist V. Lee, 3 Yeates, 47. 
 
 (c) 3 T. R. 215 ; Poth. Ob. n. 513, French ed. 
 
316 OF THINGS. 
 
 No. 814. Book 2, part 2, tit. 4, chap. 5, sec. 3, 5 2, art. 3, 4, 5. No. 816. 
 
 ^rt. 3. — Of those who are invested by law to receive payment. 
 
 814. Payment to those who are authorized by law 
 to receive payment, instead of the real creditor, is 
 always valid. The law authorizes the guardian of a 
 minor, the committee of a lunatic, the husband of a 
 woman, when there is no trust, the executors of a de- 
 ceased person, the assignees of an insolvent or of a 
 bankrupt, to receive a payment of what is due to them 
 respectively, and their discharges will be good. 
 
 Art. 4. — Of those who are authorized by the agreement to receive 
 
 payment. 
 
 815. The contract sometimes points out a third 
 person to whom payment is to be made, a payment to 
 him will then be good ; as if I sell you my house for 
 five thousand dollars, three thousand dollars payable 
 to me in six months, and two thousand dollars paya- 
 ble in one year to Titius to whom I am indebted, and 
 who has agreed to receive the money in payment of 
 my debt. This last sum must be paid to Titius, but 
 this is only on condition that he shall retain his rights 
 to act sui juris, and he has not transferred his rights 
 to another. 
 
 Art. 5. — How payments may be validated. 
 
 816. When a payment has been made to one who, 
 in reality, had no just right to receive it, it is as if no 
 payment had been made; but, if afterward, the creditor 
 does certain acts, by which he sanctions it, then it 
 becomes valid, and the debtor is discharged. Such 
 payment may be made effectual in several ways. 
 
 1. By express ratification, which is the approbation 
 of the creditor given after the payment. A ratifica- 
 tion has a retrospective effect, and binds the creditor 
 from the time of payment, and is equivalent to an 
 original authority, according to the maxim omnis rati- 
 habitio mandate aqmparatur.{a) 
 
 (a) Wood V. Carpenter, 4 Wend. 219 ; Odiome v. Maxcy, 13 Mass. 178, 
 
OF PROPERTY BY CONTRACT. 317 
 
 No. 817. Book 2, part 2, tit. 4, chap. 5, s ec. 3, S 3, art. 1. No. 818. 
 
 2. The second case is an implied ratification, as, 
 wliere the money received in payment has been used 
 to liquidate and pay the debts of the creditor for 
 whom it was received, or where the creditor has acted 
 in such a way as to raise a presumption that he ac- 
 ceded to the payment.(a) 
 
 3. A third case is where the debt has been be- 
 queathed to the person who received the money 
 without authority. 
 
 § 3. — Of the thing to be paid, and how the payment is to be made. 
 
 817. The principal points to be examined under 
 this head, are, 1, whether one thing may be paid for 
 another; 2, whether the creditor be bound to receive 
 what is due to him in instalments ; 3, how the thing 
 which is due is to be paid; 4, in what state the thing 
 paid ought to be. 
 
 Jlrt. 1. — Whether one thing may he paid for another. 
 
 818. What is due must be paid in order to make a 
 good payment, and a creditor is not bound to receive 
 any thing but what he has contracted for. If, how- 
 ever, he should receive one thing instead of another, 
 the debt would be extinguished, though this would not 
 be a payment, but an accord and satisfaction. 
 
 But sometimes, by the agreement, there is due one 
 of several things; as when the obligor promises to 
 pay one thousand dollars or one thousand bushels of 
 wheat. The election in these cases to pay which he 
 pleases is in the debtor, so that he has the right to 
 pay either, and the creditor can require nothing else. 
 He cannot, however, deliver a part of each, and the 
 right does not extend beyond the time of pay- 
 ment. (&) 
 
 182; S. C. 15 Mass. 39; Ruggles i). Washington county, 3 Mis. 496; 
 Baker v. Byme, 2 Sm. & Marsh. 193. 
 
 (a) Bredin v. Dubarry, 14 S. & R. 27 ; 3 Mis. 496 ; Shaw v. Nudd, 8 
 Pick. 9. 
 
 (b) Co. Litt. 145 a ; 7 John. 465 ; 2 Bibb, 171. 
 
318 OF THINGS. 
 
 No. 819. Book 2, pan 2, tit. 4, chap. 5, sec. 3, § 3, art, 2, 3, 4. No. 821. 
 
 An obligation for money payable in collateral arti- 
 cles, may be discharged by paying the money. (a) 
 
 Art. 2. — Whether the creditor is bound to receive what is due by 
 
 819. As a general rule, the creditor cannot be com- 
 pelled to receive what is due to him by the debtor in 
 parts ; an offer to pay a part does not therefore sus- 
 pend the interest even for the part tendered. But 
 when there are several independent obligations, he 
 may tender the amount of one of them, and the credi- 
 tor is required to receive it. And when there are 
 several instalments due, the creditor is bound to 
 receive payment of one of them. 
 
 jirt. 3. — How the thing which is due ought to be paid. 
 
 820. Payment is made by the delivery of the thing 
 which is due and transferring the property to the 
 creditor. If, therefore, the thing paid is of no value, 
 as if a debtor were to pay in counterfeit coin, or in 
 bank notes of a broken ba;ik, or which were counter- 
 feits, it is clear there would be no payment. (&) Again, 
 if my debtor were to deliver me a thing in payment 
 which was my own, there would be no discharge of 
 my claim. 
 
 Jlrt. 4. — In what state the thing should be when paid. 
 
 821. When the thing due is certain and specific, it 
 may be paid or delivered in the condition it is, on the 
 day of payment, whatever may be its deterioration, 
 provided it has not been injured by the debtor or those 
 for whom he is responsible, as his servants. If I sell 
 you my horse deliverable on the first day of April, 
 and in the mean time he meets with an accident 
 
 (a) Sessions v. Ainsworth, 1 Root, 181; Poth. Obi. n. 533. 
 
 (b) Eagle Bank v. Smith, 5 Conn. 71; Markle v. Hatfield, 2 John. 455 ; 
 State Bank v. Welles, 3 Pick. 394 ; Hargrave v. Dusenberry, 2 Hawkes, 
 326 ; Thomas v. Todd, 6 Hill, 340 ; 11 Verm. 576. But see Bayard v. 
 Shunk, 1 W. & S. 92 ; Lowry v. Murrell, 2 Port. 280. 
 
OF PROPERTY BY CONTRACT. 319 
 
 No. 822. Book 2, part 2, tit. 4, ehap. 5, sec. 3, J 4, 5. No. 823. 
 
 without any fault of mine, or those for whom I am 
 responsible, and loses an eye, a delivery of the horse 
 with that defect will discharge my obligation. 
 
 But if I sell you one of my horses, and I have a 
 dozen, without designating which, I will not discharge 
 my obligation, to you by delivering one which has be- 
 come blind of one eye since our contract ; in such case 
 I am to deliver you a sound horse, because at the 
 time of my engagement all my horses were sound. 
 
 § 4. — When the payment is to be made. 
 
 822. The payment ought to be made when the 
 thing is due, but a payment may be made before it is 
 payable; for example, a note payable six months after 
 date, may, with the consent of the creditor, be paid 
 the next day after its date. Where two terms are 
 mentioned for the time of payment, as where goods 
 were sold at six or nine months, the creditor may elect 
 which term he pleases. (a) ■ 
 
 When no time of payment is mentioned in the 
 agreement, it is due the moment the contract is com- 
 pleted. (6) 
 
 The term of promissory notes and bills of exchange 
 is generally extended three days beyond the time 
 mentioned in the contract, which days are called days 
 of grace ;(c) but in some states the days of grace have 
 been abolished. 
 
 § 5. — When payment is to be made, and at whose expense. 
 
 823. The payment must of course be made at the 
 place agreed upon by the contract; but in the absence ■ 
 of such agreement it must be made according to the 
 presumed intention of the parties, which may be 
 
 (a) Price V. Nixon, 5 Taunt. 338. 
 
 (b) Bank of Columbia v. Hayner, 1 Pet. 455. 
 
 (c) Thomas v. Shoemaker, 6 Watts & S. 179 ; Cookendorfer v Prpqfnn 
 4 flow. U. S. 317 ; Central Bank v. Allen, 4 Shep. 41. In Louisiana th^ 
 days of grace are no obstacle to a set off, the bill being due for this nur 
 pose, before the expiration of those days. Lo. Code, art. 2206. 
 
320 OF THINGS. 
 
 No. 824. Books, parts, tit. 4, chap. 5, sec. 3, §6, art. 1. No. 827. 
 
 ascertained by the nature of the thing to be delivered, 
 and by the custom or usage of the place, which always 
 forms a part of every contract, (a) 
 
 824. In general the debtor, for a money obligation, 
 is required to find the creditor and pay him,(&) for no 
 demand is necessary before suit brought, an action 
 being a sufficient demand. 
 
 825. When bulky articles are sold, and there is no 
 place mentioned where the delivery shall be made, 
 they are to be delivered at the place where the things 
 were at the time of the sale. If I sell you my crop of 
 wheat, you are to take it out of my barn, if it was 
 there at the time of sale, and I must give you notice 
 that it is ready for you.(c) And if, after the obligation 
 became due, the debtor separated the articles which 
 were to be paid from others of the same kind, for the 
 purpose of making a payment, they would be the cre- 
 ditor's, and if they were destroyed he would have to 
 bear the loss, according to the rule res perit domino.{d) 
 
 § 6. — Of tte effect of a payment. 
 
 826. The effect of a payment is to extinguish the 
 contract and all its accessories, and to liberate those 
 who were debtors. 
 
 Art. 1. — When a payment may extinguish several obligations. 
 
 827. This happens when the thing given in pay- 
 ment is the same thing which forms the object of an- 
 other obligation ; for example, if I have sold you, in 
 payment of a sum of raoney you had lent me, the 
 thing which I had pledged to you, this payment 
 which I make you by the delivery of the thing, ex- 
 tinguishes at the same time the resulting obligation of 
 
 (a) Boynton v. Veazie, 11 Shep. 286. 
 
 (I) Sanders v. Norton, 4 Monr. 464 ; Littell v. Nichols, Hardin, 66. 
 
 (c) Bvarts v. Butler, Brayt. 216 ; Trotter v. McAfee, 1 Stew. 59 ; Leedom 
 V. Phillips, 1 Yeates, 527; Bates v. Conkling, 10 "Wend. 389 ; Zinn v. Row- 
 ley, 4 Penn. St. R. 169. 
 
 (d) Zinn v. Rowley, 4 Penn. St. R. 169. 
 
OF PROPERTY BY CONTRACT. 321 
 
 No. 828. Book 2, part 2, tit. 4, chap. 5, se c. 3, § 7. No. 631. 
 
 the loan, and that resulting from the sale of the thing 
 which I sold you. 
 
 828. This may take place when there are several 
 creditors; as, if Peter be indebted to Paul one hun- 
 dred dollars, and Paul being indebted to James, Paul 
 gives an order, to Peter to pay James this money; the 
 payment by Peter to James discharges both the obli- 
 gations due by Peter to Paul, and Paul to James. 
 This rule applies also when there are several debtors 
 for the same thing, as where John is principal, and 
 Joseph as security. The payment by John will dis- 
 charge both Joseph and himself. 
 
 ^rt. 2. — Of payment made by one of several debtors. 
 
 829. We have seen that a debtor may be liberated 
 by the payment of a different obligation than his own; 
 when one of two debtors pays the debt, the others are 
 of course liberated, whether they be principal debtors 
 or only sureties. But when the surety pays the debt 
 he is entitled to stand in the place of the creditor, and 
 to be subrogated to all his rights against the princi- 
 pal, (a) By subrogation is meant the act of putting, by 
 a transfer, a person in the place of another, or a thing 
 in the place of another thing. It is the substitution 
 for an old creditor and the succession to his rights: 
 transfusio unius creditores in alium. 
 
 Art. 3 — Of partial payments. 
 
 830. Regularly a part payment cannot be insisted 
 upon by the debtor of an entire debt or obligation, but 
 if the creditor receives it, his claim is discharged pro 
 tanto. But when a debt is due by instalments, the 
 debtor has a right to pay each instalment separately, 
 but not a part of each. 
 
 § 7. — Of appropriation of payments. 
 
 831. By appropriation is meant the application of 
 
 (a) Ebenhardt's Appeal, 8 Watts, 327. 
 
 Vol. I. 21 
 
322 OF THINGS. 
 
 No. 832. Books, part 2, tit. 4, chap. 5, see. 3, § 7. No. 834. 
 
 the payment of a sum of money, made by a debtor to 
 bis creditor, to one of several debts which are due by 
 the former to the latter. It is frequently of much 
 importance to the parties to which of such debts the 
 payment should be appropriated; some debts are better 
 secured than others, or there may be a surety or a 
 pledge given for one and not for another. It is not 
 always easy to say how the appropriation ought to be 
 made. Some rules have been made for the purpose 
 of ascertaining the rights of the parties; these will 
 now claim our attention. 
 
 832. — Rule 1. When a debtor owes several debts 
 to the preditor and he pays money on account to him, 
 he has a right to direct the application of the payment 
 to which debt he pleases, by doing so at the time of 
 payment; this is called the right of appropriation.(fl!) 
 
 833. — Rule 2. If the debtor neglect to make the 
 appropriation at that time, then the right passes to the 
 creditor ;(b) and he is not bound to make the applica- 
 tion at the time of the receipt of the money. But 
 when once made, as by rendering an account, bring- 
 ing suit, and declaring in a particular way, the appro- 
 priation cannot be changed, (c) 
 
 834. — ^Rule 3. When neither party avails himself 
 of the power to make the appropriation, the courts 
 will, as far as possible, make it according to the appar 
 rent interest of the parties, and with a view to do 
 equity both to them and their sureties. ((?) To this 
 general rule there are several corollaries. 
 
 1. .The application must be made to that debt 
 which is most beneficial to the debtor, (e) 
 
 (a) Oliver u. Phelps, 1 Spencer, 180; Bacon v. Brown, 1 Bibb, 334; 
 Starrett v. Barber, 7 Shepl. 457 ; Selfridge o. Northampton Bank, 8 W. & 
 S. 320. 
 
 (b) White V. Trumbull, 3 Green, 314 ; Salleck v. Turnpike Co., 13 Conn. 
 453. 
 
 (c) Bank of N. A. v. Meredith, 2 Wash. 0. C. 47. 
 
 (d) Bmeiy v. Tichout, 13 Verm. 15 ; 3 W. & S. 550 ; 5 W. & S. 542. 
 
 (e) Gwinn v. Whitaker, 1 Har. & John. 754 ; Dorsey v. Qarraway, 2 
 Har. & John. 402 ; Logan v. Mason, 6 W. & S. 9. 
 
OF PROPERTY BY CONTRACT. 323 
 
 No. 834. Book 2, part 2, tit. 4, chap. S, sec. 3, } 7. No, 8.34. 
 
 2. When the debts are of an equal nature, the pay- 
 ment must be presumed to be made to discharge the 
 oldest, (a) 
 
 3. When the debts are of the same date, and equal 
 in every other respect, the payment will be appro- 
 priated proportionally among theia. 
 
 4. When principal and interest are both due, the 
 payment will be first applied to the interest. (&) 
 
 5. When one debt is due and another is not, the 
 payment will be applied to the first, (c) 
 
 6. Courts will apply payments to do justice to 
 sureties and relieve them, whenever they can.(rf) 
 
 7. When there are several debts, and the payment 
 corresponds exactly to one of them, it wUl be so 
 applied, (e) 
 
 8. When there are several items in an account, and 
 some of them cannot be recovered while others may 
 be enforced, and a payment is made, it will be apphed 
 to the latter. (/) 
 
 9. When a member of a firm is indebted, and the 
 firm owe the same person, a payment made by such 
 partner will be presumed to be on his own account. (g) 
 
 10. When several persons are interested in the 
 notes on which suit is brought, and a partial payment 
 is made on the judgment obtained on them, a surety 
 shall have a proportionate credit. (A) 
 
 (a) United States v. Kirkpatrick, 9 Wheaton, 720 ; Fairchild v. Hollv, 10 
 Oonn. 175 ; Berghaus v. Alter, 9 Watts, 386. 
 
 (5) Jones v. Kilgore, 2 Rich. Eq. 63 ; Baines v. Williams, 10 S. & M. 
 113. 
 
 (c) Peebles v. Dee, 1 Dev. 341 ; .Spires u.Hamot, 8 W. & S. 17; Jencks 
 V. Alexander, 11 Paige, 619 ; Seymour v. Sexton, 10 Watts, 255 ; Bacon 
 V. Brown, 1 Bibb, 334 ; Kighter v. Stall, 3 Standf. Ch. R. 608. 
 
 {d) Postmaster General v. Norvell, Gilp. 106 ; Barker u. Conrad, 12 Serg. 
 & R. 391 ; Brander v. Phillips, 16 Pet. 121 ; Myers v. United States, 1 Mc- 
 Lean, 493. 
 
 (e) Huger v. Bocquet, 1 Bay, 497. 
 
 (/) Hilton V. Burley, 2 N. Hamp. 193 ; Rackley«. Pearce, 1 Kelly, 241. 
 See Ayer v. Hawkins, 19 Verm. 26. 
 
 (g) Johnson v. Boone, 2 Harring. 172. 
 
 (h) BlackstoneBank v. Hill, 10 Pick. 129. 
 
324 OF TfflNGS. 
 
 No. 835. Book 2, part 2, tit. t, chap. 5, sec. 4. No. 836. 
 
 § 8. — Of payment of money into court. 
 
 835. Payment of money into court is the actual 
 deposit of money with the clerk or prothonotary of 
 the court in a particular case, made by the defendant 
 to answer the plaintiff's demand. To make such a 
 payment valid there must have been a previous tender, 
 or the payment of the' money must be made with 
 leave of court. 
 
 Although such payment is not made to the credi- 
 tor himself, yet it has the effect of a payment when 
 made, and, if it is not in full, it has that effect pro 
 tanto.{a) To give it that effect, however, the money 
 must be paid either, first, after plea of tender pleaded, 
 or, secondly, by leave of court. (&) When money is 
 paid in under other circumstances, it is paid in at the 
 risk of the defendant, (c) 
 
 The payment of money into court, admits the right 
 of the plaintiff to it, and, even when the plaintiff fails 
 in his suit, it will be answerable for costs. ((Z) The 
 plaintiff may take it out, but the defendant cannot, (e) 
 
 When the amount paid in is sufiBcient to pay the 
 plaintiff's claim for principal, interest and costs, up to 
 the time of payment, he can recover no other costs 
 against defendant. (/) 
 
 SECTION 4. OF THE EXTINGUISHMENT OF AN OBLIGATION BY 
 
 CONFUSION. 
 
 836. By confusion is meant the concurrence of two 
 qualities in some subject, which mutually destroy each 
 other, (g) This confusion may be of goods or of rights. 
 When the qualities of debtor and creditor are united 
 in the same person, there arises a confusion of rights. 
 
 (a) Murray v. Bethune, 1 Wend. 191. 
 
 (b) Mazych v. McEwen, 2 Bailey, 28. 
 
 (c) Ourrie v. Thomas, 8 Port. 293. 
 
 (d) Jenkins v. Outchens, 2 Miles, 65 ; Clement v. Bixler, 3 Watts, 248. 
 
 (e) 1 Wend. 191. 
 
 (/) State Bank v. Holcomb, 2 Halst. 193. 
 
 \g) Poth. Obi. n. 641 ; 3 Bl. Com. 405 ; Story, Bailm. ^ 40. 
 
OF PROPERTY BY CONTRACT. 325 
 
 No. 837. Book 2, part 2, tit. 4, chap. 5, sec. 5, 6. No. 840. 
 
 § 1. — ^When tHs confusion arises. 
 
 837. When a man is indebted to a woman or vice 
 vers&, and they marry together, the debt is immediately- 
 extinguished, because in both instances the husband is 
 bound to pay and entitled to receive. So if the cre- 
 ditor bequeath the obligation to the debtor. But there 
 is an exception, when a bond is given by the intended 
 husband to the intended wife with a view that it 
 should take effect after his death; here there is no con- 
 fusion, (a) Indeed, in that case the husband could not 
 be entitled to recover; there could not, therefore, be 
 any confusion of rights. 
 
 § 2. — Of the effect of confasion. 
 
 838. The moment the confusion takes place, the 
 right to receive and duty to pay are extinct, and if 
 the principal obligation' is thus extinguished all col- 
 laterals are also satisfied. 
 
 SECTION 5. — OF THE EXTINGUISHMENT OP THE OBLIGATION 
 BY THE LOSS OF THE THING. 
 
 839. There can be no obligation or debt unless 
 something be due, which is the object of the obliga- 
 tion; hence it follows that if what is promised becomes 
 extinct, no payment can be made. If, for example, 
 for the price of one hundred dollars, which you are to 
 pay me on the first day of January, I agree to deliver 
 you my horse Napoleon, and in the mean time he dies, 
 there is no contract subsisting. 
 
 But when the obligation is in the alternative, as, if 
 I had promised you to deliver my horse Napoleon, or 
 my pair of oxen, on the death of the horse, I would 
 be obliged to deliver you the oxen. 
 
 SECTION 6. — OF THE EXTINGUISHMENT OP A CONTRACT BY A 
 JUDGMENT OB, AWARD. 
 
 840. A final judgment in favor of the obligor against 
 
 (a) Com. Dig. Baron et Feme, D. 
 
326 OF THINGS. 
 
 No. 841. Book 2, part 2, tit. 4, chap. 5, sec. 7, 8. No. 843. 
 
 the obligee, on a suit founded on the obUgation, when 
 rendered by a competent tribunal, has the eflFect to 
 extinguish the obUgation, whether such judgment be 
 obtained on the ground of nulUty, or fraud, or any other 
 cause whatever; jE)r it is a maxim that res judicata, or 
 the decision of a legal or equitable issue by a compe- 
 tent jurisdiction, is a complete bar to any future action: 
 res judicata fadt ex dho'nigrum, ex mgro album, ex curvo 
 rectum, ex recto curvum. 
 
 An award made by arbitrators chosen by the parties, 
 if made according to the requisitions of the law, is of 
 equal force for this purpose. 
 
 SECTION 7. OP THE EXTINGUISHMENT OF A CONTRACT BT THE 
 
 DEATH OF EITHER OF THE PARTIES. 
 
 841. In general, ccmtracts are not extinguished by 
 the death of either of the parties, for unless they are 
 strictly personal, that is, to be performed by the con- 
 tractor in person, they bind the heirs, executors and 
 administrators of the contracting party, for the parties 
 bind all their perscHial representatives and aU the 
 estate they then own or may afterward acquire. 
 
 842. But there are debts or obligations which are 
 extinguished by the death of one or other of the 
 parties. Such as are personal in the sense above men- 
 tioned; as where a man binds himself to teach an 
 apprentice, the contract is at an end the moment the 
 master or apprentice dies, so far as to require its 
 further enforcement, but the remedies for a previous 
 breach remain; other examples will be eaaly sug- 
 gested, the contracts of principal and agent, and the 
 principal contracts of bailment, are of this kind. 
 
 SECTION 8. OF EXTINGUISHMENT OF A CONTRACT BT A 
 
 SET OFF. 
 
 843. When parties dealing together have claims 
 agaiust each other, one may deduct the amount which 
 
OF PROPERTY BY CONTRACT. 327 
 
 No. 844. Book 2, part 2, tit. 4, chap. S, sec. 8, j 1, 2. No, 847. 
 
 is due to him from the claim which is made against 
 him, and this is called a set off. 
 
 Set off is authorized by the statute of 2 Greo. II., c. 
 24, the principles of which have been reenacted in this 
 country, or have been adopted by the courts. 
 
 § 1. — In what cases a set off is allowed. 
 
 844. A set off can take place only in actions on con- 
 tracts for the payment of money, as assumpsit, debt, 
 or covenant. The set off does not operate of itself, 
 the defendant must plead it,(a) but he way waive his 
 right and bring a cross action against the plaintiff. (&) 
 
 845. The demands to be set off must ^e mutual, 
 and due in the same right,(c) and they must be cer- 
 tain, for unliquidated damages cannot be set o^.{d) 
 The claim must be good, subsisting at the time, and 
 not barred by the act of limitation. (e) 
 
 846. Though in general the debts do not extinguish 
 each other, yet, perhaps owing to the wording of the 
 statutes, in some states they have that effect, and 
 operate upon the rights of the parties before an action 
 is brought ; as in the cases when a man becomes a 
 bankrupt or insolvent, or when he dies, the balance 
 only can be recovered after making the proper set 
 off(/) 
 
 § 2. — Between what parties a set off is allowed. 
 
 847. No set off is allowed except between the par- 
 ties in the. suit,(g) and when it is admitted between 
 
 (a) Northampton Bank v. Balliet, 8 Watts, 39. 
 
 (*) Hinckly v. Walters, 9 Watts, 179 ; 5 Taunt. 148 ; 2 Campb. 594. 
 
 (c) Wain V. Wilkins, 4 Yeates, 461 ; Darrock v. Hay, 2 Yeates, 208 ; 
 Huriburt v. Ins. Co., 2 Sumner, 471 ; Wolfe v. Washburn, 6 Cowen, 261. 
 
 (d) MoKinley v. BeUows, 3 Blackf. 31; State v. Welsted, 6 Halst. 397; 
 Hepburn v. Hoag, 6 Conn. 613. 
 
 ie) Crist V. Gamer, 2 Pennsylv. 251; Williams v. Gilchrist, 3 Bibb, 49. 
 
 (/) See Krause v. Beitel, 3 Eawle, 199 ; McDonald v. Webster, 2 Mass. 
 498 ; Knapp v. Lee, 3 Pick. 452. 
 
 {g) Columbia v. ELarrison, 2 Rep. Const. Ct. 213 ; Johnson v. Bridge, 6 
 Cowen, 693 ; Gregg v. James, Breese, 107. 
 
328 OF THINGS. 
 
 No. 848. Book 2, part 2, tit 4, chap. 5, sec. 9, 10. No. 849. 
 
 them, it must be in the same right; a claim against the 
 plaintiff in a representative capacity, cannot, there- 
 fore, be set off in a suit brought in an individual capa- 
 city, (a) Nor can a claim against the intestate's estate, 
 which arose since his death, be set off in an action by 
 the administrator. (&) 
 
 SECTION 9. OF EXTINGUISHMENT OF A CONTKACT BY LAPSE 
 
 OF TIME. 
 
 848. Time does not usually annihilate a contract, 
 for when one becomes bound he is so until the con- 
 tract is performed, or he is otherwise discharged, not 
 only himself, but his heirs, executors, and adminis- 
 trators. But a contract may be made by which the 
 contractor may bind himself only for a certain time ; 
 as, for example, to become security for a club for one 
 year; to perform service for one year. In all contracts 
 after the end of the time, the party is discharged, 
 unless he has before the expiration of the time broken 
 his contract, and in that event he is hable for damages. 
 
 SECTION 10. OF THE DISCHARGE OP THE CONTRACT BY 
 
 NEGLECT TO GIVE NOTICE. 
 
 849. In nearly all contracts the debtor remains 
 bound, although he has no notice of the breach of 
 the contract by one for whom he is surety. If you 
 become surety that another shall pay me for goods he 
 bought of me, and at the time appointed for the pay- 
 ment he fails to pay, you are still bound to me, 
 although I have given you no notice. But a different 
 rule is observed in relation to endorsers of commercial 
 paper ; on failure of payment of a bill of exchange by 
 the acceptor, notice must be given to the drawer and 
 endorsers, and if a promissory note be not paid at ma- 
 turity, such a notice must be given to the endorsers, 
 or they will be discharged. 
 
 (a) Grew v. Burditt, 9 Pick. 265 ; Prewettit v. Marsh, 1 Stew. & Port. 17. 
 (J) Pry V. Evans, 8 Wend. 530. See Beale v. Coon, 2 Watts, 183. 
 
OF PROPERTY BY CONTRACT. 329 
 
 No. 850. Book 2, part 2, tit. 4, chap. 5, sec. 11, } 1. No. 851. 
 
 SECTION 11. OP THE LEGAL BARS WHICH MAT BE INTEE- 
 
 POSED AGAINST THE RECOVERY OF A DEBT. 
 
 850. Sometimes it happens that although a debt has 
 not been paid, it cannot be recovered by action ; the 
 law has interposed a perpetual objection to its recovery, 
 by taking away the remedy, which interposition is 
 called a bar: exceptio peremtoria.{a) These bars arise 
 from, 1, the act of limitations; 2, lapse of twenty 
 years ; 3, discharge of a defendant who has been ar- 
 rested under a capias ad satisfaciendum; 4, bankruptcy. 
 
 § 1. — Of the bar arising from the acts of limitations. 
 
 851. It is a maxim of the common law that a right 
 never dies, and doubtless this is consonant with jus- 
 tice ; but in the management of human affairs, it is 
 extremely difficult to retain the evidence of the pay- 
 ment of a debt. Accidents may destroy it, if it be in 
 writing, and death will bury it in the tomb with the 
 witness, when we depend upon verbal proof. To 
 remedy these evils the statutes of 32 H. VIII., c, 2, 
 and 21 Jac. I., c. 16, were passed in England, by the 
 latter of which it was enacted. That 
 
 " § 3. All actions of trespass quare clausum f regit, 
 all actions of trespass, detinue, action sur trover, and 
 replevin, for taking away of goods and cattle, all actions 
 of account and upon the case, other than such accounts 
 as concern the trade of merchandise, between merchant 
 and merchant, their factors or servants, all actions of 
 debt grounded upon any lending or contract without 
 specialty, all actions of debt for arrearages of rent, and 
 all actions of assault, menace, battery, wounding, and 
 imprisonment, or any of them which shall be sued or 
 brought, shall be commenced and sued within the time 
 and lijnitation expressed, and not after (that is to say) 
 the said actions upon the case (other than for slander) 
 and the said actions for account, and the said actions 
 
 (a) Co. Litt. 303 b ; Steph. PI. Appx. xxviii. 
 
330 OF THINGS. 
 
 No. 851. Book2, part2, tit. 4, chap.5, sec. 11, } 1. No. 851. 
 
 for trespass, debt, detinue, and replevin, for goods or 
 ca,ttle, and the said action of trespass, quare clausum 
 fregit, within six years next after the cause of such 
 action or suit, and not after, and the said actions of 
 trespass, of assault, battery, wounding, and imprison- 
 ment, or any of them, within four years next after the 
 cause of such actions or suit, and not after, and the 
 said actions upon the case for words within two years 
 next after the words spoken, and not after, 
 
 "§ 4. If in any one of the said actions or suits 
 judgment be given for the plaintiff, and the same be 
 reversed by error, or a verdict pass for the plaintiff, 
 and upon matter alleged in arrest of judgment, the 
 judgment be given against the plaintiff, that he take 
 nothing by his plaint, writ or bill, or if any of the said 
 actions be brought by original,' and the defendant 
 therein be outlawed, and shall after reverse the out- 
 lawry, that in all such cases the party, plaintiff, his 
 heirs, executors, or administrators, as the case shall 
 require, may commence a new action or suit from time 
 to time, within a year after such judgment reversed, 
 or such judgment given against the plaintiff or out- 
 lawry reversed, and not after. 
 
 " § 5. In all actions of trespass quare clausum fregit, 
 hereafter to b^ brought, wherein the defendant shall 
 disclaim in his plea to make any title or claim to the 
 land in which the trespass is by the declaration sup- 
 posed to be done, and the trespass is by negligence or 
 involuntary, the defendant shall be permitted to plead 
 a disclaimer, and that the trespass was by negligence 
 or involuntary, and a tender or offer of sufficient 
 amends for such trespass before the action brought, 
 whereupon or upon some of them the plaintiff shall 
 be enforced to join issue, and if the said issue b6 found 
 for. the defendant, or the plaintiff shall be nonsuited, 
 tlie plaintiff shall be clearly barred from the said ac- 
 tion or actions, and all other suits concerning the 
 same. 
 
 "§ 6. If any person shall be entitled to any such 
 
OF PROPERTY BY CONTRACT. 331 
 
 No. 852. Book 2, part 2, tit. 4, chap. 5, see. 11, § 1, art. 1. No. 854. 
 
 action of trespass, detinue, action sur trover, replevin, 
 actions of accounts, actions of debt, actions of trespass, 
 for assault, menace, battery, wounding or imprison- 
 ment, actions upon the case for words, be or shall be 
 at the time of any such cause of action given or ac- 
 crued, fallen or come within the age of twenty-one 
 years, feme covert, non compos mentis, imprisoned, or 
 beyonid the seas, that then such person shall be at 
 liberty to bring the same actions, so as they take the 
 same within such times as are before limited, after 
 their coming to or being of full age, discovert, of sane 
 memory, at large and returned from beyond the seas, 
 as other persons having no such impediment would 
 have done." 
 
 This statute, with many modifications, has been re- 
 enacted in the several states; its general principles 
 iave been retained in those states where the common 
 law has prevailed over the civil law. In Louisiana a 
 system assimilating to the civil law has been adopted. 
 This subject will be considered under four heads: 1, in 
 what cases the action will be barred ; 2, by what law 
 the contract will be barred ; 3, when the right of 
 action accrued ; 4, when the statute may be avoided. 
 
 ^rt. 1. — In what cases the action will he barred. 
 
 852. It is a general rule that all contracts founded 
 on specialties are not within the statute. The statute 
 applies to actions of account, upon the case, and of 
 debt grounded upon any lending or contracts without 
 specialty ; and all actions of debt for the recovery of 
 arrearages of rent which shall not have been com- 
 menced and sued within six years next after the cause 
 of such action or suit. 
 
 853. Although the words of the act do not carry 
 expressly an action of assumpsit, yet the courts have 
 construed its provisions to extend to cases within the 
 same reason. 
 
 854. The statute applies also to an action of deht 
 
332 OF THINGS. 
 
 No. 855. Books, parts, tit. 4, chap. 5, sec. 11, } 1, art. 1. No. 856. 
 
 founded on a contract made between the parties ; but 
 when the action of debt is founded upon construction 
 of law, the statute cannot be pleaded. (a) When the 
 liabiUty of the defendant is created not merely by the 
 act of the parties, but by the express terms of a statute, 
 the plaintiff is not barred. (&) 
 
 855. The Engli^ statute,(c) which has been copied 
 in most of the United States, almost verbatim, contains 
 an exception that " such accounts as concern the trade 
 of merchandise, between merchant and merchant, their 
 factors or agents," shall not be bari-ed by its provisions. 
 When a plaintiff brings suit upon such an account, and 
 the statute is pleaded, the plaintiff must reply and 
 show by proof, that the action is brought upon an 
 account between merchant and merchant. In such 
 case, the replication and proof must conform to the 
 statute in each of those particulars, namely, that the 
 claim of the plaintiff is founded on an account{d) which 
 concerns the trade of merchandise, {e) and that it is 
 between merchant and merchant.{f) 
 
 856. As the liability of a defendant upon a judg- 
 ment is created by the law, the act of limitations is not 
 pleadable to it. But this rule applies only to domestic 
 judgments ; the rule that the statute is not pleadable 
 to a judgment does not apply to a foreign judgment. 
 Such a judgment is generally considered merely as 
 primA facie evidence of the debt, and of no higher nature 
 than a simple contract, and a necessary consequence 
 of this is that the statute of limitations may be pleaded 
 to it.(g) A distinction, however, has been made be- 
 tween a foreign judgment where the record showed 
 
 (a) Pease v. Howard, 14 John. 479. 
 
 (h) BuUard v. Bell, 1 Mason, ■243. 
 
 (c) Statute of Limitations of 21 Jac. I., c. 16. 
 
 \d) Spring V. Gray, 5 Mason, 525 ; S. 0. 6 Pet. 155 ; Cottam v. Par- 
 tridge, 4 M. & G. 271 ; 4 Scott, N. R. 819 ; Mandeville v. Wilson, Cranch, 
 15. 
 
 (e) 5 Mason, 529 ; 6 Pet. 155. 
 
 (/) 5 Mason, 530; Hancock v. Cook, 18 Pick. 32. 
 
 [g) Pease v. Howard, 14 John. 479. 
 
OF PROPERTY BY CONTRACT. 333 
 
 No. 857. Book 2, part 2, tit. 4, chap. 5, sec. 11, } I, art. 1. No. 859. 
 
 that it was founded upon a specialty or on a simple 
 contract ; in the first case the act of limitation is not 
 pleadable, because it could not 'have been a bar in the 
 original suit, (a) 
 
 857. Although the words of the statute are that it 
 shall apply to " all actions of debt grounded upon any 
 lending, or contract without specialty, all actions of 
 debt for arrearages of rent" yet if the rent be created 
 by indenture, or under seal,, it has been held that the 
 statute is no bar.(6) 
 
 858. In general, courts of equity are equally bound 
 with courts of law to give the statute its full opera- 
 tion. But when the subject matter of the suit is a 
 trust, the statute does not operate. To exempt a trust 
 from the bar of the statute, it must possess the follow- 
 ing quahties : 1, it must be a direct trust; 2, it must 
 be of the kind exclusively belonging to a court of 
 equity ; 3, the question must arise between the trustee 
 and the cestui que trust. {c) The statute is no bar when 
 there is an express trust, so long as the fiduciary re- 
 lation'exists ; but this rule does not apply when there 
 is only an impUed trust, or when he who holds the 
 legal title denies or disclaims \i.{d) 
 
 859. The statute of limitations in general leaves 
 the government untrammeled by its provisions, unless 
 expressly restricted, or by necessary implication it is 
 included, (e) But when a debt due is barred before the 
 instrument^ which is the evidence of it, is assigned 
 
 (a) Richards v. Bickley, 13 S. & R. 395. 
 
 (b) Freeman v. Stacey, Hut. 109; Kane u. Bloodgood, 7 John. Ch. 90. 
 
 (c) Lyon ii. Marclay, 1 Watts, 275. See Wisher v. Ogden, 4 Wash. C. 
 C. 631 ; Rush v. Barr, 1 Watts, 120 ; Finney v. Cochran, 1 W. & Serg. 
 118 ; Doebler u. Suavely, 5 Watts, 225 ; Spottswood v. Dandridge, 4 Hen. 
 & Mumf. 139 ; Singleton v. Mocffe, Rice, Eq; 110 ; Talbot v. Todd, 5 Dana, 
 199 ; Houseal v. Gibbes, 1 Bail. Eq. 482 ; Cooke v. Williams, 1 Green's Ch. 
 209 ; Paige v. Hughes, 2 B. Monroe, 438 ; Stephen v. Yandle, 3 Hayne, 
 221 ; Gist v. Heirs of Cattel, 2 Desaus. 53 ; Thomas v. White, 3 Litt. 177 ; 
 Coster V. Murray, 5 John. Oh. 224 ; Benzoin v. Lenoir, 1 Car. Law Repos. 
 508 ; Shelby v. Shelby, Cooke, 182 ; Pinson ». Ivey, 1 Yerg. 297. 
 
 (d) Walker v. Walker, 16 S. & R. 379. 
 
 (e) Lindsey ». Miller, 6 Pet. 666 ; United States v. Hoar, 2 Mason, 311 ; 
 
334 OF THINGS. 
 
 No. 860. Book 2, part 2, tit. 4, chap. 5, sec. H, 5 1, art. 2. No. 860. 
 
 to the United States, the statute of limitation will he 
 a bar. (a) 
 
 Art. 2. — By what law the remedy will be barred. 
 
 860. The act of limitations of the place where the 
 suit is brought, or the lex fori, as the civilians call it, 
 regulates the rights of the parties. The act does not 
 affect or change the contract, it operates only on the 
 remedy, for the right remains, although the plaintiff 
 may be barred of his remedy by the statute. If the 
 statute of limitations in the state in which the parties 
 lived, and where they made the contract, should limit 
 the time for bringing a suit on a book account to 
 four years, and after the expiration of that time the 
 debtor should remove to another state, where, by its 
 laws, the claim could be recovered by suing at any 
 time before the expiration of six years from the time 
 when the contract was made, he could doubtless re- 
 cover, although the contract was barred by the laws 
 of the state where it was made ; which shows that the 
 debt was not extinguished, although it was barred.(6) 
 
 Bagley v. Wallace, 16 S. & R. 245 ; Birch v. Alexander, 1 Wash. R. 34; 
 Sloughton V. Baker, 4 Mass. 522; Steward's Lessee v. Mason, 3 Har. & J. 
 507 ; Commonwealth v. McGowan, 4 Bibb, 62 ; Weatherhead v. Bledsoe, 
 2 Tenn. Rep. 352 ; Commonwealth v. Johnson, 6 Penn. St. Rep. 136 ; 
 Johnson v. Irwin, 3 S. & R. 292 ; Bagley v. Wallace, 16 S. & R. 245 ; 
 Commonwealth v. Hutchinson, 10 Penn. St. Rep. 466. 
 
 (a) The United States v. Buford, 3 Pet. 29. 
 
 (J) See Sturgis v. Crowningshield, 4 Wheat. 122, 200, 207. Mr. Justice 
 Story has given the reasons for this rule with his usual clearness. He says, 
 " In regard to statutes of limitation or prescription, there is no doubt, that 
 they are strictly questions affecting the remedy, and not questions upon 
 the merits. They go, ad litis ordinationem, and not ad litis decisionem, 
 in a just juridical sense. The object of them is to fix certain periods, within 
 which all suits shall be brought in the courts of a state, whether they he 
 brought by subjects or by foreigners. And there can be no reason, and no 
 sound policy, in allowing higher or more extensive privileges to foreigners 
 than to subjects. Laws, thus limiting suits, are founded in the noblest 
 policy ; they are statutes of repose, to quiet titles, to suppress frauds, and 
 to supply the deficiency of proofs from the ambiguity and obscuriiy of 
 transactions. They presume that claims are extinguished, because they 
 are not litigated within the prescribed period. They take away all sohd 
 grounds of complaint, because they rest on the negligence or laches of the 
 
OF PROPERTY BY CONTRACT. 335 
 
 No. 861. Book a, pan 2, tit. 4, chap. 6, sec. 11, } 1, art. 3. No. 861. 
 
 For the same reason, where, by the lex loci contractiis, 
 the act of limitation was no bar for seventeen years, 
 and th^ suit was brought in a state where the statute 
 barred the claim in six years, it was held the plaintiff 
 could not recover, (a) 
 
 jlrt. 3. — When the right of action accrued. 
 
 861. The statute begins to run from the time when 
 the creditor could lawfully have commenced an action 
 to recover his claim. The time does not commence to 
 run from the time when the contract was made, for it 
 might happen that six years, the limited time, might 
 expire before the suit could be brought, as where a 
 note is made payable seven years after date. Before 
 the statute begins to run, the creditor must, therefore, 
 have a full and complete cause of action. When a period 
 is fixed by the contract, there can be but little doubt 
 as to the time when the action must be brought. (&) 
 
 When the time to call for the debt is optional with 
 the creditor, as when a note is payable on demand,(c) 
 or where the defendant promised to return money bor- 
 rowed, " when called on to do so,"{d) the time com- 
 mences at the date of the transaction or making of 
 the contract. Upon the same principle, the statute 
 begins to run from the time of the monthly balance, 
 
 party himself. They quicken diligence, by making it in some measure 
 equivalent to right. They discourage litigation, by burying in one common 
 receptacle all the accumulations of past times, which are unexplained, and 
 have now become inexplicable. It has been said by Voet with singular 
 felicity, that controversies are limited, lest they should be immortal, while 
 men are mortal ; ne autem Hies immortales essent, dum litigantes mortales 
 sint." Oonfl. of Laws, ij 576. 
 
 (a) Nash v. Tupper, 1 Gaines, 402; Decouche v. Savetier, 3 John. Oh. 
 190. 
 
 (b) Banks v. Ooyle, 2 A. K. Marsh. 564 ; Jones v. Conway, 4 Yeates, 
 109 ; Odlin v. Greenleaf, 3 N. Hamp. 270 ; Richman v. Richman, 5 Halst. 
 114. 
 
 (c) Presby v. Williams, 15 Mass. 193 ; Baston v. McAllister, 1 Misso. 
 662 ; Larason v. Lambert, 7 Halst. 247 ; Newman v. Kettell, 13 Pick. 418 • 
 Wenman v. Mohawk Ins. Co. 13 Wend. 267. ' 
 
 (d) Damall v. Magruder, 1 Harr. & Gill. 439 ; Laforge v. Jayne, 9 Penn. 
 St. R. 410. J- , emi. 
 
336 OF THINGS. 
 
 No. 862. Book 2, part 2, tit. 4, chap. 5, sec. 11, § 1, art. 4. No. 862. 
 
 struck in a bank book of a depositor, because then the 
 action accrued. («) 
 
 If a demand is necessary to entitle the plaintiff to 
 bring a suit, the statute commences running only from 
 the time of the demand, for until a demand is made, 
 no action accrues. This is the case when a factor has 
 not accounted over; to entitle the principal to an 
 action, he must have made a demand, and from that 
 time only, does the act begin to run. (6) 
 
 The statute does not begin to run, when there is an 
 entire contract, until it is wholly completed, because tiU 
 then the plaintiff has no cause of action ; as where a 
 man engages to serve another for one year for the con- 
 sideration of two hundred dollars, as he can maintain 
 no action till he has fully performed the services, the 
 act will not begin to run till that time.(c) So the 
 statute begins to run, on a claim for work and labbr, 
 from the time when the work was finished, and not 
 from the period when the contract was made ;(d) nor 
 against the claim of an attorney for professional ser- 
 vices, before a demand is made or the professional 
 relation has been dissolved. (e) 
 
 Art. 4. — When the statide may he avoided. 
 
 862. There are several ways by which the statute 
 may be avoided : by proof of, 1, that the plaintiff was 
 under some one of the disabilities mentioned in the 
 statute ; or, 2, that the debtor has acknowledged the 
 debt, and by a new promise rendered himself liable to 
 pay it ; or, 3, that the cause of action was fraudulently 
 concealed from the defendant, during the period when 
 he could have brought an action. 
 
 (a) Union Bank v. Knapp, 3 Pick. 96. 
 
 (i) Topham v. Braddick, 1 Taunt. 572 ; Wright v. Hamflton, 2 Bailey, 
 51. See Little v. Blunt, 9 Pick. 488. 
 (c) Ante n. 698. 
 
 id) Zeigler v. Hunt, 1 McCord, 577. 
 (e) Foster v. Jack, 4 Watts, 334. 
 
OF PROPERTY BY CONTRACT. 337 
 
 No. 863. Books, part 2, tit. 4, chap. S, sec. 11, 5 1, art. 4. No. 865. 
 
 1. Of the Usabilities. 
 
 863. The statute of James contains a proviso, "that 
 if any person or persons, that is or shall be entitled to 
 any such action of trespass, etc., be or shall be at the 
 time of any such cause of action, given or accrued, or 
 fallen or come, within the age of twenty-one years, 
 feme covert, non compos, imprisoned or beyond seas, 
 that then such person or persons shall be at liberty to 
 bring the same actions, so as they take the same 
 within such times as are before limited, after their 
 coming to or being of full age, discovert, of sane 
 memory, at large, or returned from beyond seas, as 
 other persons having no other impediments should 
 have done." 
 
 864. The uniform construction which has been 
 given to this proviso is, that when it is incumbent 
 on the plaintiff to prove that he labored under any 
 disability, he must show that it was a continuing dis- 
 ability from the first; for, when once the statute begins 
 to run, no subsequent disability will impede it.(«) If 
 therefore a female infant has a cause of action, the in- 
 fancy would take the case out of the statute, but should 
 she attain her full age and the next day marry, her 
 coverture would not prevent the operation of the statute, 
 because the statute having once begun to run, it does 
 not stop. (6) 
 
 865. The disability arising from absence, or being 
 out of the country, is usually expressed by the phrase 
 beyond sea, which has been adopted in imitation of the 
 English statute ; in that country, the expression is 
 perfectly correct ; but on a continent like ours, the 
 expression is vague. These words have not received 
 the same construction in all the states, though in 
 
 (a) Peck «. Randall, 1 John. 165 ; Rogers v. Hillhouse, 3 Conn. 398 ; 
 Crosier v. Gano, 1 Bibb, 257 ; Carlisle v. Stitler, 1 Pennsyl. 6. 
 
 (b) Carlisle v. Stitler, 1 Pennsyl. 6. 
 
 Vol. I. 22 
 
338 OF THINGS. 
 
 No. 866. Book 2, part 2, tit. 4, chap. 5, sec. 11, ^ 1, art. 4. No. 866. 
 
 general they are held to be equivalent to being out of 
 the jurisdiction, that is, beyond the reach of process. (a) 
 When, therefore, in time of war, a part of the terri- 
 tory of a state was actually and exclusively occupied 
 by the enemy, a person within the enemy's line was 
 considered as out of the state, within the meaning of 
 the statute of limitations. (&) 
 
 The moment that the party returns to the state, in 
 the case of a defendant, when he openly shows him- 
 self, so that a writ might be served upon him, the 
 statute begins to run, and, having taken its course, it 
 never stops on account of any subsequent disability. 
 What shall be considered a return will depend upon 
 circumstances. In the case of a defendant his return 
 must be open, and such as would enable the plaintiff, 
 by using due diligence, to serve process upon him. A 
 temporary and transient return, in a remote part of 
 the state, so that the plaintiff had not seasonable notice, 
 or if the defendant coiicealed himself except on Sun- 
 days, so that no writ could be served upon him, it is 
 not such a return as will bring the case within the 
 operation of the statute. (c) 
 
 2. Of the acknowledgment or promise of the defendant. 
 
 866. When the statute has been pleaded by the 
 
 (a) In Pennsylvania, the term " beyond sea," signifies " out of the Umits 
 of the United States." Thurston v. Dawes, 9 S. & K. 288; Ward v. Hal- 
 lam, 2 Dall. 217 ; S. C.l Yeates, 329. In Maryland, it means '' out of the 
 jurisdiction of the state." Pancoast v. Addison, 1 Harr. & John. 350 ; 
 Brent v. Tasker, 1 Har. & McH. 89. The term used in Kentucky, is " out 
 of the country," which signifies out of the state. Mansell v. Israel, 3 Bibb, 
 510. In Connecticut, it was held that Halifax, in the province of Nova 
 Scotia, was not beyond sea. Gustin v. Brattle, Kirby, '299. In Georgia, 
 the expression beyond sea, means out of the state. Murray's lessee v. 
 Baker, 3 Wheat. 541. In Virginia, beyond sea is equivalent to out of the 
 commonwealth. Faw v. Eoberdeau's executor, 3 Cranch, 174. In Ten- 
 nessee, a person who resided out of the state, but in another state, was 
 held not to reside beyond seas. Pike v. Greene, 1 Yerg. 465. 
 
 (b) Sleght V. Kane, 1 John. Gas. 76, 81. 
 
 (c) Fowler v. Hunt, 10 John. 464 ; Byrne v. Crowningshield, 1 Pick. 
 263 ; Crosby v. Wyatt, 10 Shepl. 156 ; Ruggles v. Keeler, 3 John. 264 ; 
 Ang. on Lim. 223. 
 
OF PROPERTY BY CONTRACT. 839 
 
 No. 868. Books, part 2, tit. 4, chap. 5, see. 11,4 1, art. 4. No. 886. 
 
 defendant, if the plaintiff can avoid the bar, by show- 
 ing that the defendant has acknowledged the debt, 
 within the time prescribed by the statute, he should 
 reply a new promise, within the period limited. By a 
 new promise is understood a contract made between 
 the original parties or their representatives, after the 
 original promise has, for some cause, been rendered 
 invalid, by which the promissor agrees to fulfil his 
 original promise. 
 
 When the plaintiff has replied a new promise, he 
 must prove that such an express promise has been 
 made. To prevent perjuries, in several of the states 
 of the Union, it is required that such a promise should 
 be in writing ; but, in the absence of any statutory 
 provision, such new promise may be proved by parol 
 evidence. But it is indispensable that there should 
 be an express promise ; it may be raised by implica- 
 tion of law, from the acknowledgment of the party. 
 To be valid, such acknowledgment must contain an 
 unqualified and direct admission of a present subsisting 
 debt, which the debtor is liable and willing to pay.(«) 
 When the acknowledgment is conditional, the plaintiff 
 must*prove that the condition has been performed, or 
 performance tendered. (&) 
 
 An implied acknowledgment arises from the exist- 
 ence of mutual accounts between the parties, when there 
 are items on both sides within the period of limitation, 
 and the case is taken out of the statute. (c) The courts 
 presume that when a party makes a charge against 
 another on a mutual account that he thereby admits, 
 as regards himself, that the account is unsettled, when 
 
 (a\ Angell on Lim. 234—237 ; Guier v. Pearce, 2 Browne, R. 35 ; MUes 
 D. Moodie, 3 S. & R. 211 ; Eckert v. Wilson, 12 S & R. 397 ; Fries v. 
 Boisselire, 9 S. & R. 128 ; Yoxtheimer v. Keyser, 11 Penn. St. R. ; Bell v. 
 Morrison, 1 Pet. S. 0. 362, 365 ; Porter v. Hill, 4 Greenl. 41; Stanton v. 
 Stanton, 2 N. Hamp. 496 ; Bell v. Rowland, Hardin, 301. 
 
 (S) Laforge v. Jayne, 9 Penn. St. R. 410; Wetzell v. Bussard, 11 
 Wheat. 309. 
 
 (c) Tucker v. Ives, 6 Cowen, 193 ; Cogswell v. Oliver, 2 Mass. 247. ■ 
 
340 OF THINGS. 
 
 No. 867. Books, part 2, tit. 4, chap. 5, sec. 11, J 1, art. 4. No. 867. 
 
 a defendant has made such a charge, it has been holden 
 sufficient to save the plaintiff's account; (a) but if the 
 items in the defendant's accounts are all of an earlier 
 date, though some of the plaintiff's charges may be 
 within the time limited by the statute, all the claims 
 will be barred, except those items charged within the 
 time.(&) 
 
 These promises and acknowledgments can be replied 
 to the plea of the statute, only in cases where the 
 original obligation arose on a contract; for, when the 
 cause of action arises ex delicto, or is given by posi- 
 tive statute, irrespective of any promise or neglect of 
 duty of the party, as in the case of actions against 
 executors or administrators, upon the contract of him 
 whom they represent, the new promise or acknowledg- 
 ment, however unequivocal and positive, will not 
 revive the cause of action, if once barred by lapse of 
 time.(c) 
 
 3. When fraud will prevent the operation of the statute. 
 
 867. Another mode of avoiding the bar of the 
 statute, is by proof of fraud in the defendant, com- 
 mitted under such circumstances as to conceal from 
 the plaintiff all knowledge of the fraud, and thus 
 preventing him from asserting his rights, until a 
 period has elapsed beyond the time limited by the 
 statute. In order to entitle himself to show this, the 
 plaintiff must make replication of the fact, for he can- 
 not give it in evidence under the issue formed on a 
 plea of the statute. (f^) 
 
 (a) Davis v. Smith, 4 Greenl. 337 ; Sickels v. Matther, 20 Wend. 72. 
 
 lb) Gold V. Whitcomb, 14 Pick. 188. 
 
 (c) Parkman v. Osgood, 3 Greenl. 17; Dawes v. Shed, 15 Mass. 6; 
 Thompson v. Brown, 16 Mass. 172 ; Hurst v. Parker, 1 B. & Aid. 92 ; 
 Oothout V. Thompson, 20 John. 277. 
 
 id) See Sherwood v. Sutton, 5 Mason, 143 ; Bree v. Holbeck, 2 Dougl. 
 654. 
 
OF PROPERTY BY CONTRACT. 341 
 
 No. 868. Book 2, part 2, tit. 4, chap. 5, sec. 11, i 2, 3. No. 869. 
 
 § 2. — Of the bar arising from lapse of time. 
 
 868. The lapse of twenty years, without explana- 
 tory circumstances, raises the presumption of certain 
 facts, and, after that time, the party against whom 
 the presumption has been raised, will be required to 
 prove a negative, and show that the fact is otherwise. 
 
 After twenty years from the time it became due, a 
 bond, mortgage or other specialty, will be presumed to 
 have been paid. (a) And the same presumption arises 
 that a judgment has been paid, if no steps have been 
 taken by the plaintiff after its rendition. (6) 
 
 When a debt is payable by instalments and secured 
 by a penal bond, the presumption of payment arising 
 from the lapse of time appHes to each instalment as it 
 falls due.(c) 
 
 But in all these cases the presumption may be 
 easily rebutted, by showing the payment of interest 
 during that time, an admission that the debt was not 
 paid, or other circumstances which rebut the presump- 
 tion. ((^) 
 
 § 3. — Of the effect of the arrest of a defendant under a capias ad 
 satisfaciendum. 
 
 869. When the defendant has been arrested under 
 a capias ad satisfaciendum, and he is voluntarily dis- 
 charged by the plaintiff, he cannot be retaken, nor can 
 his property be afterward seized. (e) Indeed, the rule 
 has been extended so far, that if one of several joint 
 debtors has been arrested on a capias ad satisfaciendum, 
 and he has been subsequently discharged by the cre- 
 ditor, this extinguishes the judgment as to all the 
 
 (a) 1 Greenl. Ev. i 39. 
 
 (5) Kennedy v. Executors of Donoon, 3 Brev. 476; Boardman v.De 
 Forest, 5 Oonn. 1. 
 
 (c) The State v. Lobbis Admr. 3 Earring. 421. 
 
 {d) 2 Barring. 124 ; 9 N. Hamp. 398 ; Best on Presumptions, part 1, ch. 
 2 and 3 ; Matth. on Pres. ch. 19 and 20. See Cowen's Note to 1 Phil. Ev. 
 160, note 307, vol. 3, p. 316. 
 
 (e) Cooper v. Bigelow, 1 Oowen, 56. Owing to statutory provisions the 
 rule is not the same in South Carolina, Eggart v. Barnstine, 3 McCord, 
 162 ; nor in Ohio, King v. Kerr, 5 Ham. 154. 
 
342 OF THINGS. 
 
 No. 870. Book 2, part 2, tit. 4, chap. 6, sec. 1. No. 872. 
 
 debtors, so that neither of them can afterward be 
 taken in execution. (a) But the taking in execution 
 the body of one of two joint trespassers, is not such a 
 satisfaction of the judgment, as to bar an action against 
 his co-trespasser. 
 
 § 4. — Of the effect of bankruptcy to discharge the debt. 
 
 870. In general, bankruptcy discharges not only 
 the person of the debtor, but all property he may 
 acquire afterward. 
 
 But in all the cases mentioned in this section, if 
 the debt has not been paid, there remains such a moral 
 obligation, that a promise to pay it, made after the, 
 remedy is gone, will revive it, so that an action will 
 lie on a new promise for which the old debt is a suffi- 
 cient consideration. (&) 
 
 CHAPTER VI.— OF THE FOEM OF AGREEMENTS. 
 
 871. It is not sufficient to make agreements, they 
 must be made in such a way that they can be proved 
 and established in a court of justice whenever re- 
 quired ; and in some cases to be valid, they must be 
 reduced to writing, in order to comply with certain 
 statutory provisions. 
 
 Contracts are divided, as to their form, into those 
 which are of record, those in writing, and those not in 
 writing. These will be considered in three separate 
 sections. 
 
 SECTION 1. OF CONTRACTS OF EECOKD. 
 
 872. The principal of these is a recogm'2'ance, which 
 is an obligation of record, entered into before a court 
 or officer, duly authorized for that purpose, with a con- 
 dition to do some act required by law to be done, or to 
 
 (a) Ransom v. Keyes, 9 Cowen, 128 ; Bafley v. Kimbal, 1 Chip. 151. 
 See King v. Kerr, 5 Ham. 154; Scott v. Colmesnil, 7 J. J. Marsh, 416; 
 Sheldon v. Kibbe, 3 Conn. 214. 
 
 (i) Maxim «. Morse, 8 Mass. 127; Field's case, 2 Rawle, 351; Kingston 
 V. Wharton, 2 S. & R. 208. 
 
OF PROPERTY BY CONTRACT. 343 
 
 No. W3. Book 2, part 2, tit. 4, chap. 6, sec. 2, 5 1, art. 1. No. 876. 
 
 refrain from doing some act forbidden by law, which 
 is therein, specified. (a) 
 
 As to their /or?ra, recognizances are mere acknowledg- 
 ments before the court, judge, or magistrate, having 
 authority to take the same. It is a short entry on the 
 record, of the substance of the engagement, without 
 the same being signed by the recognizor. 
 
 A recognizance is taken for a certain sum, with a 
 condition that the cognizor will pay a debt, or do some 
 other thing. 
 
 SECTION 2. CONTRACTS IN WRITINa. 
 
 873. Much difference exists between a contract 
 under seal and one not under seal, though both be in 
 writing. 
 
 § 1. — Of contracts under seal. 
 
 874. A contract under seal is called d, specialty, or 
 deed. A deed is an instrument under seal, written or 
 printed, containing some contract or agreement, and 
 which has been delivered by the parties. (6) This is 
 the generic name for all writings under seal, whether 
 they relate to the conveyance of lands or other mat- 
 ters. But the word deed is, in a more confined sense, 
 used to designate a conveyance of real estate. A spe- 
 cialty is a written agreement under seal.(c) 
 
 The subject will be divided into three parts : 1, of the 
 form; 2, of the matter and effect of a deed; 3, of the 
 kinds of deeds. 
 
 Art. 1. — Of the form of a deed. 
 
 875. The deed must contain a contract, it must be 
 under seal, and it must be delivered. 
 
 1. Of the contract. 
 
 876. It is evident from our definition of a deed, that 
 
 (a) 2 Bl. Com. 341; Bro. Ab. h. t. ; 1 Chit. Cr. Law, 90. 
 
 \b) Co. Litt. 171; 2 Bl. Com. 295 ; Shep. Touch. 50. 
 
 (c) Taylor d. Glazer, 2 S & R. 502 ; Mitchell v. Parham, Harper, 1 . 
 
344 OF THINGS. 
 
 No. 877. Books, parts, tit. 4, chap. 6, sec. 2,^1, art. 1. No. 877. 
 
 some contract must be the object of the instrument, 
 for if it were not for this, there would be no deed in 
 the true meaning of the word. An epistolary letter 
 is a writing, sealed and delivered, but it is not a deed. 
 And a blank piece of paper, signed, (which was a 
 writing,) sealed and delivered, and afterward written 
 upon, was held to be no deed. (a) 
 
 2. Of the seal. 
 
 877. To made a valid deed, a writing must be sealed, 
 for if it has no seal it is no deed ; the question then 
 arises as to what is a seal. A seal is defined to be an 
 impression upon wax, wafer, or some other tenacious 
 substance capable of being impressed. (6) Lord Coke 
 defines a seal to be wax, with an impression. (c) " Si- 
 gillum," says he, " est cera impressa, quia cera sine im- 
 pressione non est sigillum." It is presumed, however, 
 that if wax were dropped on the paper or parchment 
 while hot, . and it adhered to it, such wax would be 
 considered as a seal, if the party had adopted it as 
 such, whether any impression had been made on it or 
 not. 
 
 Merlin((?) defines a seal to be a plate of metal with 
 a flat surface, on which are engraved the arms of a 
 prince, or private individual, or other device, with 
 which an impression is made on wax or other soft sub- 
 stance, or on parchment or paper, in order to authen- 
 ticate them ; the impression thus made is also called a 
 seal. 
 
 All these definitions are imperfect in this country, 
 because in some of the states, the impression upon wax 
 is not always used, and a circular, oval, or square mark, 
 opposite the name of the signer, has the same effect as 
 
 (a) Duncan v. Hodges, 4 McOord, 239 ; Perminter v. McDaniel, 1 Hill, 
 So. Oar. 267. 
 
 (J) Warren v. Lynch, 5 John. 239, 
 
 (c) 3 Inst. 169. 
 
 [d) Repert. verbo Sceau. 
 
OF PROPERTY BY CONTRACT. 345 
 
 No. 878. Book 2, part 2, tit. 4, chap. 8, see. 2, J 1, art. 2. No. 879. 
 
 a seal. It is usually made with a pen, and the shape 
 of it is altogether indifferent. (a) 
 
 When there are several obligors, and but one seal, 
 it is presumed each one adopted the same seal. (6) 
 
 3. Of the delivery of the deed. 
 
 878. A delivery is necessary to a deed, but it is not 
 requisite that the delivery should be express, it may 
 be implied from the acts of the grantor ; as where the 
 deed was put into the. recorder's office to be recorded 
 at the request of the grantor, for the use of the grantee, 
 and the grantor subsequently assented to it, this was 
 considered as a delivery. (c) And putting a deed into 
 the post-office by the grantor, directed to the grantee, 
 is a suffiqient delivery, (c?) A presumption of delivery 
 arises from the fact that the deed is in possession of 
 the grantee. (e) 
 
 A deed may be delivered to a third person for the 
 use of the grantee ; it takes effect immediately, and is 
 then absolute; or it may be delivered to such person 
 conditionally or as an escrow. It has then no binding 
 effect until the condition has been performed,(/) and, 
 by relation, it refers back to the delivery. 
 
 •Ert. 2. — Of the effect of a deed. 
 
 879. A deed or specialty differs from any other 
 agreement in writing in various particulars, the prin- 
 cipal of which are the following : 
 
 1. It always imports a consideration, and although 
 one is generally stated, it is not indispensably requi- 
 site.(g) 
 
 (a) 2 S. & R. 503 ; United States v. Coffin, Bee, 140 ; Duncan v. Dun- 
 can, 1 Watts, 322 ; Cromwell v. Tate, 7 Leigh, 301 ; Commerford v. Cobb, 
 2 Flor. 418. 
 
 (b) Mackay v. Bloodgood, 9 John. 285. 
 
 (c) Hedge v. Drew, 12 Pick. 141. 
 
 id) McKenney v. Rhodes, 5 Watts, 343. See White v. Bailey, 14 Conn. 
 271. 
 
 (e) Green v. Tamall, 6 Mis. 326 ; Dunn v. Games, 1 McLean, 321 ; Hatch 
 V. Haskins, 5 Shep. 391. 
 
 (/) Currie v. Donald, 2 Wash. 68 ; 14 Conn. 271 ; Wheelwright v. 
 Wheelwright, 2 Mass. 447. 
 
 (g) Horn's Exr. v. Gartman, 1 Flor. 63. 
 
346 OF THINGS. 
 
 No. 880. Book 2, parts, tit. 4, chap. 6, sec. 2, § 1, art. 3. No. 881. 
 
 2. The rights to it cannot be transferred at common 
 law, like a promissory note, by a bare endorsement ; 
 such endorsement may convey the equitable right, but 
 not the legal title. 
 
 3. It is not barred by the act of limitations, and no 
 presumption of payment arises till a period of twenty 
 years has elapsed, nor then, if the reason for the non- 
 payment can be explained. 
 
 4. A man who makes a specialty is estopped from 
 denying or disproving any fact recited it it ;{a) in a 
 simple contract, on the contrary, although an admission 
 in it of a fact affords evidence of its truth, it may be 
 disproved by other proof. (&) 
 
 ^rt. 3. — Of the kinds of deeds. 
 
 880. We have abeady observed that the word deed 
 has two meanings : one, which is the generic name for 
 all instruments under seal, and another, which, in a 
 more confined sense, signifies a conveyance of real 
 estate. Of this last we shall have occasion to speak in 
 another place. Here our observations will be confined 
 to the first. Deeds of this description are bonds, 
 single bills, mortgages, and covenants. 
 
 1. Of bonds. 
 
 881. A bond is a written obligation under seal, by 
 which the maker, called the obligor, binds himself, his 
 heirs, executors, and administrators, to pay to the 
 other party, called the obligee, a certain sum of money. 
 To this there is a condition that if another sum, 
 usually one-half mentioned in the bond, shall be paid 
 at a day certain, then the bond shall be void, or else 
 remain in full force and virtue ; or sometimes the 
 condition is that the obligor shall do or refrain from 
 doing certain acts. If the acts which he binds himself 
 to do are unlawful, then the bond is absolute, and will 
 
 (a) 2 Bl. Com. 295 ; Com. Dig. Estoppel, A ; 1 Greenl. Et. ^ 24, 25, 
 2H. 
 
 (b) Parish V. Stone, 14 Pick. 201, 202. 
 
OF PROPERTY BY CONTRACT. 347 
 
 No. 882. Book 2, part 2, tit. 4, chap. 6, sec. 2. § 1, ait 3. No. 884. 
 
 stand as if it were single and unconditional ; and if 
 the condition be to do something malum in se, the 
 whole bond is void, (a) The following are the requi- 
 sites of a valid bond. 
 
 1. There must be parties, one or more obligors, and 
 one or more obligees. 
 
 2. The words must clearly declare the intention of 
 the parties, but no particular form of words is required. 
 
 3. It must be in writing, on paper or parchment, 
 and if made on other materials, it is void. (6) 
 
 4. It must be under seal. 
 
 5. It must be deUvered. 
 
 6. It ought to be dated, but as the date is no sub- 
 stantial part of a deed, a bond that either has no date, 
 or an impossible one, is not void on that account. It 
 takes effect from the day of delivery, (c) 
 
 2. Of a single till. 
 
 882. A single bill is in the form of a bond without 
 any condition ; it must be in writing, under seal, and 
 delivered, and the object must be to promise a pay- 
 ment of money. 
 
 3. Of a mortgage. 
 
 883. Mortgages are of several kinds : as they con- 
 cern the nature of property mortgaged, they are mort- 
 gages of lands, tenements and hereditaments, or of 
 goods and chattels ; as they affect the title of the thing 
 mortgaged, they are legal and equitable. 
 
 1st. — Of the legal mortgage of lands. 
 
 884. A legal mortgage may be described to be a 
 conveyance by deed of lands by a debtor called the 
 mortgagor, to his creditor called the mortgagee, as a 
 
 (a) 2 Bl. Com. 340 ; Bac. Ab. Conditions, K, L ; Com. Dig. Conditions, 
 D, 1, 2, 3, 7, 8. 
 
 (b) Bac. Ab. Obligations, A ; Co. Litt. 229 ; 2 Bl. Com. 297. 
 
 (c) 2 Bl. Com. 304. 
 
348 OF TfflNGS. 
 
 No. 835. Book 2, part 2, tit. 4, chap. 6, sec. 2, } 1, art. 3. No. 885. 
 
 pledge and security for the payment of money bor- 
 rowed, or the performance of a covenant, with a pro- 
 viso that the conveyance shall be void on the payment 
 of the money and interest on a certain day, or the 
 performance of the covenant by the time appointed ; 
 by which the conveyance of the land becomes absolute 
 at law ; yet the mortgagor has an equity of redemption, 
 that is, a right in equity to perform the agreement in 
 a reasonable time, and to call for a reconveyance of 
 the land, (a) 
 
 885. As to the form, such a mortgage must be in 
 writing and under seal, between parties capable of 
 contracting, when it is intended to convey the legal 
 title. (&) It is usually made by a single instrument 
 which contains the whole contract, but sometimes the 
 conveyance of the land is absolute, and the grantee, 
 by a separate instrument, called a deed of defeasance, 
 agrees to reconvey the land to the grantor, on his pay- 
 ing a certain sum of money, (c) The two instruments 
 make but one contract, and lioth must be recorded in 
 order to give them validity as a mortgage against 
 lands. (d) 
 
 In general, whatever clauses or covenants are intro- 
 duced in a conveyance, though they seem to impart 
 an absolute disposition or an additional purchase, yet 
 if, upon the whole, it appears to have been the inten- 
 tion of the parties that such conveyance should have 
 been a mortgage only, or pass an estate redeemable, 
 a court of equity will always so construe it.(e) And 
 
 (a) Cruise, Dig. t. 15, c. 1, s. 11. 
 
 (i) Bowers' Oysters, 3 Pennsyl. 239; Conard v. Ins. Co., 1 Pet. 386; 
 Hebron v. Centre Harbor, 11 N. Hamp. 571. 
 
 (c) Peterson v. Clark, 15 John. 205 ; Dimond v. Enoch, Addis. 357 ; 
 Manuf. & Mech. Bank v. Bank of Pennsylvania, 7 Watts & Serg. 335 ; Per- 
 kins V. Dibble, 10 Ohio, 433 ; Ogden v. Grant, 6 Dana, 473 ; Nugent v. 
 Riley, 1 Mete. 117, 119 ; Lanfair v. Lanfair, 18 Pick. 299 ; Watkins ii. 
 Gregory, 6 Blackf. 113 ; OolweU v. Woods, 3 Watts, 188; Nichols v. Rey- 
 nolds, 1 Angell, 30. 
 
 (d) Brown v. Dean, 3 Wend. 208 ; Jaques v. Weeks, 7 Watts, 261. 
 (e)Vern. 183; Rice «. Rice, 4 Pick. 349 ; Catlin u. Chittenden, Brayt. 
 
 163 ; Page v. Foster, 7 N. Hamp. 392. 
 
OF PROPERTY BY CONTRACT. 349 
 
 No. 886. Book 2, part 2, tit. 4, chap. 8, sec. 2, 4 1, art. 3. No. 888. 
 
 it is a universal rule that an instrument once a mort- 
 gage is always a mortgage. (a) 
 
 886. As the mortgage is only a pledge of the land for 
 the payment of a debt, the mortgagor is the principal 
 debtor and the land is the surety ; hence it follows that 
 if the debt is paid, the land mortgaged, like any other 
 pledge, is discharged. (6) But still, the mortgage con- 
 veys an estate to the mortgagee at law, on which a 
 real action may be maintained, (c) 
 
 2(f. — Of the equitable mortgage of lands. 
 
 887. An equitaUe mortgage of lands takes place when 
 the mortgagor does not regularly convey the land, but 
 does some act by which he manifests his determination 
 to bind the same, for the security of a debt he owes. 
 An agreement in writing to transfer an estate, as a 
 security for the payment of a sum of money borrowed, 
 or even a deposit of title deeds, and a verbal agree- 
 ment, will have the effect of creating an equitable 
 mortgage. ((Z) But in some states, owing to provisions 
 in their recording acts, equitable mortgages are not 
 allowed, (e) 
 
 3(/. — Of mortgage of chattels. 
 
 888. A grant or conveyance of chattels in gage or 
 mortgage, passes the whole legal title conditionally to 
 the mortgagee, and if not redeemed at the time stipu- 
 lated, the title becomes absolute at law, though equity 
 will interfere to compel a redemption. (/) 
 
 Some mortgages of chattels have been held valid 
 without possession, but they stand upon very peculiar 
 
 (a) 2 Oowen, 324 ; 1 Yeates, 584. 
 
 (b) Briggs V. Pish, 2 Chip. 100. But it is not indispensable that there 
 should be any collateral or personal security for the debt, secured by the 
 mortgage. Smith v. The People's Bank, 11 Shepl. 185. 
 
 (c) Dexter v. Harris, 2 Mason, 531. 
 
 (d) 2 Story, Bq. Jur. § 1020 ; 1 Bro. C. C. 269 ; Rockwell v. Hobby, 2 
 Sandf. Ch. 9. 
 
 (e) Shitz V. Diffenbaoh, 3 P. S. R. 233; Bowers' Oysters, 3 Pennsyl. 
 239. 
 
 (/) Cutts V. York Man. Co., 6 Shep. 201. 
 
350 OF THINGS. 
 
 No. 889. Book 2, part 2, tit. 4, chap. 6, sec. 2, § 1, art. 3. No. 890. 
 
 grounds, and may be deemed an exception to the 
 general rule, which requires that possession of chattels 
 should accompany the mortgage, (a) 
 
 4:th. — For what debt a mortgage may he given, 
 
 889. In general a mortgage is given merely as a 
 collateral security for the payment of a bond or other 
 written obligation of the mortgagor, but this is not 
 indispensable, if there is a debt due ;(&) and a mort- 
 gage may be given for future advances or for a con- 
 tingent delbt;(c) and if fair, it will be supported. 
 Unless fraudulent it is not void, because it is given for 
 a greater sum than is actually due.((Z) 
 
 5th. — Of the difference between a Tnortgage and a conditional sale. 
 
 890. A conditional sde is one which depends for its 
 validity upon the fulfilment of some condition. It 
 not unfrequently happens that a debtor conveys his 
 land to his creditor absolutely, and then the creditor 
 agrees to convey the land to the debtor upon condition, 
 and this has much resemblance to a mortgage ; for if 
 the debtor pays the amount stipulated for, he will be 
 entitled to the land, as when he pays the amount due 
 on the mortgage, he will have a right to it. But they 
 are distinguishable, and this is the test. If any debt 
 remains after the debtor has made his conveyance, the 
 transaction is a mortgage, but if the debt is extin- 
 guished by mutual agreement, or the money advanced 
 is not loaned, but the grantor has a right to refund it 
 
 (a) Langdon v. Bull, 9 Wend. 80 ; Brown v. Bement, 8 John. 96 ; Port- 
 land Bank v. Stubs, 6 Mass. 422 ; Glow v. Woods, 5 S. & R. 275 ; Walsh 
 V. Bakey, 1 Penna. 57 ; Goodnow v. Dunn, 8 Shep. 86. 
 
 (i) Smith V. People's Bank, 11 Shepl. 185. 
 
 (c) Conard v. Atlantic Ins. Co., 1 Pet. 386 ; Garber v. Heniy, 6 Watts, 
 57; Stewart v. Stocker, 1 Watts, 135; Adams «. Wheeler, 10 Pick. 199: 
 Commercial Bank v. Cunningham, 24 Pick. 270 ; Leeds v. Cameron, 3 
 Snmn. 488 ; Ter-Hoven v. Kerns, 2 Penn. St. R. 96 ; Lyle v. Ducomb, 5 
 Bmn. 585. 
 
 {d) Gordon v. Preston, 1 Watts, 885. 
 
OF PROPERTY BY CONTRACT. 351 
 
 No. 891. Book 2, part 2, tit. 4, chap. 6, sec. 2, § 1, art. 3. No. 892. 
 
 in a given time, and have a conveyance, this is a con- 
 ditional sale. (a) 
 
 4. Of a warrant of attorney. 
 
 891. A warrant of attorney is an instrument in 
 writing addressed to one or more attorneys therein 
 named, authorizing them generally to appear in any 
 court, or in some specified court, on behalf of the per- 
 son giving it, and to confess judgment in favor of some 
 person therein named, in an action of debt, and usually 
 containing a stipulation not to bring any writ of error 
 nor to file a bill in equity, so as to delay him. 
 
 This authority is generally qualified by reciting a 
 bond, which usually accompanies it, together with the 
 condition annexed to it, or by a written defeasance, 
 stating the terms upon which it was given, and re- 
 straining the creditor from making use of it contrary 
 to such conditions. 
 
 It is generally given under seal, though it is said this 
 is not indispensable. (&) 
 
 In general it is not revocable, but death destroys its 
 validity, for no judgment can be entered against a 
 dead man.(c) 
 
 5. Of covenants. 
 
 892, In its proper technical sense, a covenant is an 
 agreement between two or more persons, entered into 
 in writing and under Seal, by which either party 
 stipulates for the truth of certain facts, or promises to 
 perform ~or give something to the other, or to abstain 
 from the performance of certain things. (<?) 
 
 A covenant difiers materially from an assumpsit; the 
 
 (a) Robinson v. Oropsey, 2 Edw. 138 ; Page v. Foster, 7 N. Hamp. 392; 
 ilobertson v. Campbell,, 2 Call, 354 ; 2 Sumn. 487; Wheeland v, Swartz, 
 1 Yeates, 579; Hillhouse v. Dunning, 7 Conn. 143. See Johnson's Ex'rs. 
 V. Clark, 5 Ark. R. 321 ; Holmes v. Grant, 8 Paige, 243. 
 
 (b) Kennersly «. Mussen, 5 Taunt. 264; Overton v. Tyler, 3 Penn. St. 
 K. 346. 
 
 (c) Co. Litt. 52 b. 
 
 \d) 2 Bl. Com. 304 ; Bac. Ab. in pr. 
 
352 OF THINGS. 
 
 No. 893. Book 2, part 2, tit. 4, chap. 6, sec. 2, § 2. No. 894. 
 
 former must be under seal, the latter may be verbal 
 or in writing not under seal ; in a covenant no con- 
 sideration need be shown, in assumpsit the contract is 
 invalid unless a consideration appears ; the act of limi- 
 tations bars an assumpsit, it does not affect a covenant; 
 though lapse of time will be presumption of perform- 
 ance. 
 
 6. Letter of attorney. 
 
 893. A letter of attorney is a written instrument, 
 under seal, by which one or more persons called con- 
 stituents, authorize one or more other persons, called 
 attorneys, to do some lawful act, by the latter, for or 
 instead and in the place of the former, (a) 
 
 The authority is either general, to transact all the 
 business of the principal; or special, to do some parti- 
 cular business, as to collect a debt. 
 
 It is revocable or irrevocable ; the former, when no 
 interest is conveyed to the attorney, in the matter of 
 which it is the subject; it is irrevocable when the 
 attorney has such an interest ; as, when it is given as 
 part security. 
 
 § 2. — Of contracts in writing not under seal. 
 
 894. For most commercial purposes, contracts are 
 made in writing not under seal, and these, like con- 
 tracts made verbally, are called simple contracts, for 
 there is no difference as to their effects except perhaps 
 in consequence of statutory provisions, and as to the 
 manner in which they are to be proved. This class 
 are called parol contracts. 
 
 The principal contracts which must of necessity 
 be in writing, and not under seal, are the following : 
 1, bills of exchange; 2, promissory notes; 3, bills of 
 lading ; 4, bills of adventure ; 5, charter party ; 6, ar- 
 ticles of agreement ; 7, letters. 
 
 (a) 1 Moody, Cr. Cas. 52, 70. 
 
OF PROPERTY BY CONTRACT. 353 
 
 No. 895. Book 2, part 2, tit. 4, chap. 6, sec. 2, ^ 2, art. 1, 2, 3. No. 898. 
 
 Art. 1. — Of bills of exchange, 
 
 895. A bill of exchange is an open letter of request 
 from, and order by one or more persons, on one or 
 more others, to pay to some third person or persons a 
 sum of money therein mentioned, on demand, or at a 
 future time therein specified. The nature and use of 
 this instrument will be fully pointed out when we 
 come to treat of special contracts. (a) 
 
 Art. 2. — Of promissory notes. 
 
 896. The nature of this instrument will also be con- 
 sidered when we treat of particular contracts. It is 
 required here only to give the definition of a promis- 
 sory note. It is a written promise, not under seal, by 
 one or more persons, called the makers, to pay to one 
 or more persons, denominated the payees, for a valua- 
 ble consideration, a sum of money, at a future time, 
 unconditionally , 
 
 Art. 3. — Of hills of lading. 
 
 897. A hill of lading is a memorandum or acknow- 
 ledgment in writing, signed by the captain or master 
 of a ship or other vessel, that he has received in good 
 order, on board of his ship or vessel, therein named, 
 at the place therein mentioned, certain goods therein 
 specified, which he promises to deliver, in like good 
 order, (the dangers of the sea excepted,) at the place 
 therein appointed for the delivery of the same, to the 
 consignee therein named, or to his assigns, he or they 
 paying freight for the same ;(&) or it is the written 
 evidence of a contract for the carriage of goods sent by 
 water for a certain freight, (c) 
 
 1. Form of the hill of lading. 
 
 898. A bill of lading ought to contain the name of 
 
 (o) Post, n. 1129. 
 
 (J) By the French authors a bill of lading is called a connoisement ; by- 
 Italians, polizza do carrico ; and by Latin authorities on the continent of 
 Europe, apocha oneratoria. 
 
 (c) 1 H. Bl. 359. 
 
 Vol. I. 23 
 
354 OF THINGS. 
 
 No. 899. Books, part 2, tit. 4, chap. 6, sec. 2, §2, art. 4. No. 900. 
 
 the consignor; tlie name of the consignee; the name 
 of the master of the vessel; the name of the vessel; 
 the place of departure and destination; the price of 
 the freight ; and, in the margin, the marks and num- 
 bers of the things shipped, and also an agreement to 
 deliver them at the place of destination : it should be 
 dated and signed by the master. It must be in writing, 
 and not under seal. 
 
 It is usually made in three originals or parts. One 
 of them is commonly sent to the consignee, with the 
 goods, on board ; another is sent to him by mail or 
 other conveyance ; and the third is retained by the 
 merchant or shipper. The master should also take 
 care to have another part for his own use. (a) 
 
 2. Of the assignment of the hill of lading. 
 
 899. The bill of lading may be assigned, and the 
 assignee takes all the rights of the assignor, unless 
 there has been some restriction in the assignment, or 
 it has been assigned upon some condition. As there 
 are several parts, there may be several assignments, 
 and in that case a difficulty arises to ascertain who is 
 entitled to the goods. The rule of law on the subject 
 is, that the goods pass by the bill first endorsed; and 
 for this there are two reasons: the first, that after a 
 party has parted with his rights, he cannot transfer 
 any other to another person; and, secondly, when aU 
 parties are equal in equity, he who has the advantage 
 at law has the best right. (6) 
 
 This assignment is always understood as leaving the 
 goods liable for the freight, and, in some cases, to the 
 right of the sellers to stop them in transitu.{c) 
 
 Art. 4. — Bill of adventure. 
 
 900. A hill of adventure is a writing signed by a 
 merchant, to testify that the goods shipped on board a 
 
 (a) Abbott on Shipp. 217. 
 
 (b) Abbott on Shipp. 387 ; Caldwell v. BaU, 1 T. R. 205. 
 
 (c) 2 Kent, Com. 548 ; Abbott on Shipp. 331; Bac. Ab. Merchant, (L); 
 1 Bell's Com. 542, 545, 5th ed. 
 
OF PROPERTY BY CONTRACT. 355 
 
 No. 901. Books, parts, tit. 4, chap. 6, sec. 2, §2, art. 5, 6. No. 903. 
 
 certain vessel belong to another person, who is to take 
 the hazard, the subscriber signing only to oblige him- 
 self to account to him for the produce. 
 
 Art. 5. — Of the charter party. 
 
 901. Charter party is a contract of aflfreightment in 
 "writing, by which the owner of a ship or other vessel 
 lets the whole, or a part of her, to a merchant or other 
 person, for the conveyance of goods on a particular 
 voyage, in consideration of the payment of freight. 
 This instrument ought to contain, 1, the name and 
 tonnage of the vessel; 2, the name of the captain; 3, 
 the names of the letter to freight and the freighter ; 
 
 4, the place and time agreed upon for loading and dis- 
 charge; 5, the price of the freight; 6, the demurrage 
 or indemnity in case of delay; 7, such other conditions 
 as the parties may agree upon. It should be dated 
 and signed. (a) 
 
 Art. 6. — Of articles of agreement. 
 
 902. Articles of agreement relate either to real or 
 personal estate, or to both. An article is a memoran- 
 dum of an agreement, reduced to writing, to make 
 some future disposition or modification of property; 
 and such an instrument will create a trust or equitable 
 estate, of which a specific performance will generally 
 be decreed in chancery. (6) 
 
 903. This instrument should contain, 1, the name 
 and character of the parties; 2, the subject matter of 
 the contract ; 3, the covenants which each of the par- 
 ties binds himself to the other to perform; 4, the date; 
 
 5, the signatures of the parties. 
 
 1. The parties should be named, and their additions, 
 as, of the city of Philadelphia, merchant, should be 
 expressed, in order to identify them. It should also 
 
 (a) Abbott on Shipp. pt. 3, c. 1, s. 1 to 6 ; Poth. h. t. ; Pardess. n. 708 ; 
 Marsh. Ins. 407. A charter party may be made under seal or simply in 
 writing not sealed. Lawes on Charter Parties, 2. 
 
 (I) Cruise on R. P. tit. 32, c. 1, s. 31 ; and tit. 12, c. 1. 
 
356 OF THINGS. 
 
 No. 904. Book 2, part 2, tit. 4, chap. 6, sec. 2, § 2, art. 7. No. 904. 
 
 be stated, which persons are of the first, second, or 
 other part. A confusion in this respect may occasion 
 difficulties. 
 
 2. The subject matter of the contract ought to be set 
 out in clear and explicit language, and its consideration 
 should be properly stated. What one party is to do, 
 should be set out in a consecutive series of articles, 
 and then, in another set, what the other binds himself 
 to do. The time and place of performance ought to 
 be mentioned : and when goods are to be delivered, it 
 ought to be provided at whose expense they should be 
 removed, for there is a difference in the delivery of 
 light and bulky articles. The seller of bulky articles 
 is not in general bound to deliver or remove them, 
 unless he specially agrees to do so.(«) 
 
 3. The promises of each party ought to be correctly 
 stated, as a mistake in this respect leads to difficulties 
 which might have been obviated. Too much precision 
 cannot be attained. 
 
 4. The instrument should be truly dated as to time, 
 land though the place where it is made be not indis- 
 pensable, yet it is highly proper it should be men- 
 tioned. 
 
 5. It should be signed by the parties or their agents. 
 When an agent executes it, he should sign it in the 
 name of his principal and not his own, or he may per- 
 haps make himself unintentionally responsible person- 
 ally. ^ The proper way to sign is thus : A B (the 
 principal's name,) by his agent or attorney, C D. 
 
 This instrument may be made under seal, and fre- 
 quently it is so made. 
 
 ^rt. 7. — Of letters or correspondence. 
 904. A contract may be made by persons who are 
 absent from each other, as well as by those who are 
 present. This is done by correspondence, or by letters 
 sent by one person to another, and the answers. 
 
 (a) 5 S. & R. 19 ; 12 Mass. 300. 
 
OF PROPERTY BY CONTRACT. 357 
 
 No. 905. Book a, part 2, tit. 4, chap. 6, sec. 3. No. 90a. 
 
 The diflSculty, in cases of this kind, is to know when 
 the contract has actually been completed. If, for ex- 
 ample, Peter writes from Philadelphia to Paul in New 
 Orleans, offering to buy a thousand bales of cotton, at 
 a certain price, and before he receives Paul's answer 
 he changes his mind, and writes to him declining the 
 contract and withdrawing his offer, there is no con- 
 tract, although Paul may have assented to it before 
 Peter wrote his letter withdrawing the offer, because 
 in fact there was no consenting mind when Peter re- 
 ceived the acceptance of his offer. (a) 
 
 When an offer is made by letter, and it is not 
 accepted unconditionally, but the precise terms are 
 changed, even in the slightest degree, there is no 
 contract. (&) 
 
 SECTION 3. — OF CONTRACTS NOT IN 'WRITING. 
 
 905. Although doubtless it is more prudent to 
 reduce the terms of every contract to writing, par- 
 ticularly when they are of much importance and are 
 not to be executed immediately ; yet, in the affairs of 
 life, it is almost impossible to pursue this course, and 
 many contracts are daily made without any such pre- 
 caution. Every man, every day, makes one or more 
 of these contracts, without feeling any inconvenience, 
 and indeed without observing the frequency of such 
 engagements. You go into a store and buy a book, 
 into a hotel and eat your dinner, into a steamboat to 
 go on a journey, into an omnibus to go from one part of 
 the town to another; in all these cases, and a thousand 
 similar ones, you make a contract, without scarcely 
 observing it. 
 
 The principal difference between verbal contracts or 
 those not in writing, and those in writing, is in the 
 mode of proof. In written contracts, the writing is 
 
 (a) McCulloch v. Eagle Ins. Co., 1 Pick. 278 ; Thayer v. Ins. Co., 10 
 Pick. 326. See B. 2, part 1, t. 5, c. 4, s. 1, note. 
 
 (b) Eliason v. Henshaw, 4 Wheat. 225. 
 
358 OF THINGS. 
 
 No. 906. Book 2, part 2, tit. 4, chap. 6, eeo. 3. No. 907. 
 
 alone evidence of them, and no verbal agreement will 
 be admitted to alter, change, or contradict what the 
 parties have reduced to writing ; they are presumed 
 to have put all into their agreement, and aM pourparlers, 
 or conversations, or a previous colloquium, in the nego- 
 tiation of the agreement, are merged in the written 
 contract, (a) 
 
 But parol evidence is admissible to defeat a written 
 instrument, on the ground of fraud or mistake, or to 
 apply it to its proper subject-matter ; or, in some in- 
 stances, as ancillary to such application, to explain the 
 meaning of doubtful terms, or to rebut presumptions 
 arising extrinsically. In these cases the parol evidence 
 does not usurp the place or arrogate the authority of 
 written evidence, but either shows that the instrument 
 ought not to operate at all, or is essential in order to 
 give the instrument its legal effect. (6) 
 
 906. Contracts not in writing may be made expressly 
 by the consent of the contracting parties distinctly 
 stated. In this kind of contracts, like those which are 
 reduced to writing, there must be, 1, competent con- 
 tracting parties; 2, a subject matter of the agreement; 
 3, a lawful consideration, or, when that is not requisite, 
 as in the case of a gift, a delivery of the thing; and 4, 
 an agreement of the parties. 
 
 907. But the principal contracts not in writing, 
 are to be classed among implied contracts. These are 
 such as reason and justice dictate, and which the law 
 presumes every man undertakes to perform ; as if a 
 man employs another to do business for him, or perform 
 any work, the law implies that the former contracted 
 or undertook to pay the latter as much as his labor 
 deserved; or if one takes up goods from a tradesman, 
 without any agreement or price, the law presumes that 
 
 (a) 1 Greenl. Ev. ^ 275 ; 1 Spence on Equit. Jur. of Chan. 553 ; Dig. 
 20, 1, 4 ; Dig. 22, 4, 4 ; 1 Phil, and Am. on Ev. 753. 
 
 (h) Lessions v. Gilbert, 1 Brayt. 75 ; Arberry v. Noland, 2 J. J. Marsh. 
 421; Gower v. Sterner, 2 Whart. 75 ; Comm. v. Blaine, 4 Binn. 186 ; 1 
 Binn. 610 ; 3 Binn. 587 ; 3 S. &.R. 340. 
 
OF PROPERTY BY CONTRACT. 359 
 
 No. 907. Book 2, part 2, tit. 4, chap, 6, sec. .3. No. 907. 
 
 he will pay their value; or even without any active act 
 of his own, a man may make a contract; as, if a baker 
 were to send to your house every morning, for any 
 given time, a loaf of bread; or a publisher of a news- 
 paper, his paper, and they were used in your family, 
 even without your knowledge, but for your benefit, 
 you would be bound to pay for their just value. (fl) 
 
 (a) 2 Bl. Com. 443 ; Com. Dig. Action upon the case upon Assumpsit, 
 A. 1; Com. Dig. Agreement. In Ogden v. Saunders, 12 Wheat. 341, Mar- 
 shall, C. J. says, " A great mass of human transactions depend upon im- 
 plied contracts, which are not written but grow out of the acts of the parties. 
 In such cases the parties are supposed to have made those stipulations 
 which, as honest, fair and just men, they ought to have made." In the 
 Roman law, there is a species of contract somewhat resembling implied 
 contracts, but differing from them in many particulars. 
 
 Quasi-contractus, a term used in the civil law. A quasi-contract is the 
 act of a person, permitted by law, by which he obligates himself toward 
 another, or by which another binds himself to him, without any agreement 
 between them. 
 
 By article 2272 of the Civil Code of Louisiana, which is translated from 
 article 1371 of the Code Civil, quasi-contracts are defined to be " the lawful 
 and purely voluntary acts of a man, from which there results any obligation 
 whatever to a third person, and sometimes a reciprocal obligation between 
 the parties." In contracts, it is the consent of the contracting parties 
 which produces the obligation ; in quasi-contracts no consent is required, 
 and the obligation arises from the law or natural equity, on the facts of the 
 case.. These acts are called quasi-contracts, because, without being con- 
 tracts, they bind the parties as contracts do. 
 
 Quasi-contracts may be multiplied almost to infinity. They are, however, 
 divided into five classes : such as relate to the voluntary and spontaneous 
 management of the affairs of another, without authority ; the administration 
 of tutorship ; the management of common property ; the acquisition of an 
 inheritance ; and the payment of a sum of money or other thing by mistake, 
 when nothing was due. 
 
 1. Negotiorum gestio. When a man undertakes, of his own accord, to 
 manage the affairs of another, the person assuming the agency contracts the 
 tacit engagement to continue it and complete it, until the owner shall be in 
 a condition to attend to it himself. The obligation of such a person is, 1st, 
 to act for the benefit of the absentee ; 2dly, he is commonly answerable for 
 the slightest neglect ; 3dly, he is bound to render an account of his manage- 
 ment. Equity obliges the proprietor, whose business has been well man- 
 aged, 1st, to comply with the engagements contracted by the manager in 
 his name ; 2dly, to indemnify the manager in all the engagements he has 
 contracted; and, 3dly, to reimburse him all useful and necessary expenses. 
 
 2. Tutorship or guardianship, is the second kind of quasi-contracts, there 
 being no agreement between the tutor and minor. 
 
 3. When a person has the management of a common property owned by 
 himself and others, not as partners, he is bound to account for the profits, 
 and is entitled to be reimbursed for the expenses which he has sustained by 
 virtue of the quasi-contract -which is created by his act, called communio 
 honorum. 
 
360 OF THINGS. 
 
 No. 908. Book 2, part 2, tit. 4, chap. 6, sec. 3. No. 908. 
 
 But this rule would not authorize any one to do work 
 for another without his knowledge or consent, so as to 
 make the latter liable for the amount; as, for example, 
 where one without the request or privity of the owner 
 saved his property from fire; (a) or where one put 
 repairs on the house of another without his privity or 
 consent. (6) In these cases the party has no remedy. 
 
 908. These imphed contracts may be made by any 
 person sui juris, and by a corporation aggregate. (c) 
 
 4. The fourth class is the aditio hmreditatis, by which the heir is bound 
 to pay the legatees, who cannot be said to have any contract with him or 
 widi the deceased. 
 
 5. Indeliti solutio, or the payment to one of what is not due to him, if made 
 through any mistake in fact, or even in law, entitles him who made the 
 payment to an action against the receiver for repayment, condictio indebiti. 
 This action does not lie, 1, if the sum paid was due ex equitate, or by a 
 natural obligation ; 2, if he who made the payment knew that nothing was 
 due, for qui consvlto dot quod non debehat, prmsumitur donare. 
 
 Each of these quasi-contracts has an affliiity with some contract ; thus 
 the management of the affairs of another without authority, and tutorship, 
 are compared to a mandate ; the community of property, to a partnership : 
 the acquisition of an inheritance, to a stipulation ; and the payment of a 
 thing which is not due, to a loan. 
 
 ^ pei-sons, even infants and persons destitute of reason, who are conse- 
 quently incapable of consent, may be obliged by the quasi-contract, which 
 results from the act of another, and may also oblige others in their favor ; 
 for it is not consent which forms these obligations ; they are contracted hj 
 the act of another, without any act on our part. The use of reason is 
 indeed required in the person whose act forms the quasi-contract, but it is 
 not required in the person by whom or in whose favor the obligations which 
 result from it are contracted. For instance, if a person undertakes the 
 business of an infant or a lunatic ; this is a quasi-contract, which obliges the 
 infant or the lunatic to the person undertaking his affairs, for what he has 
 beneficially expended, and reciprocally obliges the person to give an account 
 of his administration or management. 
 
 There is no term in the common law which answers to that of quasi- 
 contract ; many quasi-contracts may doubtless be classed among implied 
 contracts ; there is, however, a difference between them, which an example 
 will make manifest. In case money should be paid by mistake to a minor, 
 it may be recovered from him by the civil law, because his consent is not 
 necessary to a quasi-contract ; but by the common law, if it can be reco- 
 vered, it must be upon an agreement to which the law presumes he has 
 consented, and it is doubtful, upon principle, whether such recovery could 
 be had. Bouv. L. D., h. t. 
 
 (a) Bartholomew v Jackson, 20 John. 28. 
 
 (b) Caldwell v. Eneas, 2 Rep. Const. Ct. 348 ; Hart v. Norton, 1 McCord, 
 22. See Pinchon ». Delaney, 2 Yeates, 22. 
 
 (c) North WhitehaU v. South Whitehall, 3 S. & R. 117 ; Chestnut Hill 
 Tump. Co. V. Rutter, 4 S. & R. 16 ; Baptist Church v. Mulford, 3 Hals. 
 
OF PROPERTY BY CONTRACT. 361 
 
 No. 909. Book 2, part 2, tit. 4, chap. 7. No. 910. 
 
 909. There are various contracts which cannot be 
 entered into except in writing ; these will be consi- 
 dered, when we come to examine the provisions of the 
 statutes of frauds. 
 
 CHAPTER Vn.— OF THE MEMORANDUM IN WRITING REQUIRED 
 BY THE FOURTH SECTION OF THE STATUTE OF FRAUDS. 
 
 910. To prevent frequent frauds and perjuries of 
 persons who pretend that certain contracts had been 
 made, and who afterward supported them by perjured 
 witnesses, the English statute of 29 Car. II., c. 3, 
 was passed. Most of the principles of this statute 
 have been reenacted, with certain alterations and 
 modifications, in the greater number of the states of 
 the Union. There is, however, a great difference 
 between these enactments. It would be extremely 
 difficult to examine all of them in detail, and they 
 would not perhaps repay the trouble of studying them. 
 The fourth section of the English statute, which re- 
 quires that the contract should be in writing, applies 
 to the following cases : It provides that no action 
 shall be brought — 
 
 1. Whereby to charge any executor or administra- 
 tor, upon any special promise, to answer out of his own 
 estate ; or 
 
 2. Whereby to charge the defendant, upon any 
 special promise, to answer for the debt, default, or 
 miscarriage of another person ; or 
 
 3. To charge any person upon any agreement made 
 upon consideration of marriage ; or 
 
 4. Upon any contract or sale of lands, tenements 
 or hereditaments, or any interest in or concerning 
 them ; or 
 
 5. Upon any agreement that is not to be per- 
 formed within the space of one year from the making 
 thereof; or 
 
 182 ; Dunn v. St. Andrew's Church, 14 John. 118 ; Bank of Columbia jj. 
 Patterson, 7 Cranch, 297. 
 
362 OF THINGS. 
 
 No. 911. Books, parts, tit. 4, chap. 7, Bee. 1,2. No. 912. 
 
 6. Unless the agreement upon wMch such action 
 shall be brought, or some memorandum or note there- 
 of, shall be in writing, signed by the party to be 
 charged therewith, or some person by him thereunto 
 lawfully authorized. 
 
 SECTION 1. OP PROMISES MABE BY EXECUTORS OR ADMINIS- 
 TRATORS. 
 
 911. Executors and administrators are liable for the 
 debts of the deceased persons whom they represent, 
 only in their representative capacity, to the extent of 
 the assets which have actually come to their hands, 
 or for which they may be lawfully charged. If they 
 make any promise to pay such debts, it applies only to 
 such assets. But the executor or administrator may, 
 if he will, undertake to pay the debt out of his own 
 estate ; in this case, to prevent perjuries, the statute 
 requires that the promise shall be in writing, and this 
 writing must state the consideration upon which the 
 agreement is founded. (a) 
 
 SECTION 2. OP PROMISES MADE POR THE DEBT, DEFAULT, 
 
 OR MISCARRUGE OP ANOTHER. 
 
 912. Promises of this sort are called guarantees. A 
 guarantee is a promise made upon a good consideration, 
 to answer for the payment of some debt, or the per- 
 formance of some duty, in case of the the failure of 
 another person, who is, in the first instance, liable to 
 such payment or performance. (&) 
 
 To comply with the requisitions of the statute, the 
 agreement must, 1, be in writing; 2, made upon a 
 sufficient consideration ; and, 3, be to fulfil the engage- 
 ment of another. The nature of the writing and what 
 is a sufficient signature will be examined in another 
 place. Here will be considered, 1, the nature of the 
 
 (a) Addis, on Contr. 107 ; Saunders v. Wakefield, 4 B. & Aid. 601. See 
 Patton V. Williams, 3 Munf. 59. 
 (J) Dole V. Young, 24 Pick. 250, 252. 
 
OF PROPERTY BY CONTRACT. 363 
 
 No. 913. Book 2, part 2, tit. 4, chap. 7, see. 2, 4 1. No. 913. 
 
 engagement, or for what debt a guarantor is liable to 
 answer ; and, 2, the nature of the default or miscarriage 
 for which he agrees to become responsible. 
 
 § 1. — Of the nature of the debt for which the guarantor is liable. 
 
 913. The very term guarantee implies that some 
 other is the principal debtor, but a default may arise 
 upon an executory contract, and a promise to pay for 
 goods to be furnished to another, is a collateral promise 
 to pay on the other's default, provided the credit, in the 
 first instance, was given exclusively to the other. (a) 
 
 It is a general rule, that when a promise is made by 
 a third person, previous to the sale of goods, or other 
 credit given, or other liability incurred, it comes within 
 the statute, when it is conditional upon the default of 
 another, who is solely liable in the first instance, other- 
 wise not ; the only inquiry to ascertain this is, to whom 
 was it ao;reed that the vendor or creditor should look 
 in the first instance ? Many nice distinctions have 
 been made on this subject : 
 
 1. When a party actually purchases goods himself, 
 which are to be delivered to a third person for his sole 
 use, and the latter was not responsible ; this is not the 
 case of a guarantee, because the person to whom the 
 goods were furnished never was liable. (&) 
 
 2. Where a person buys goods, or incurs other lia- 
 bility, jointly with another, but for the use of that 
 other, and this fact is known to the creditor, the 
 guarantee must be in writing. 
 
 3. A person may make himself liable, by adding 
 his credit to that of another, but conditionally only, 
 in case of the other's default. This sort of promise 
 comes immediately within the meaning of the statute, 
 and, in these cases, is sometimes called a collateral 
 promise. (c) 
 
 (a) As to the form of a guarantee, and the difference between an offer to 
 guarantee and a guarantee, see Burg, on Sur. c. 2, p. 16 ; Addison on Contr. 
 107, 114. 
 
 (b) Berkmyr v. Barrell, 1 Salk. 27. See D'Wolf «. Kaybaud, I Peters, 476. 
 
 (c) Meade v. McDowell, 5 Binn. 195. 
 
364 OF THINGS. 
 
 No. 914. Book 2, part 2, tit. 4, chap. 7, sec. 3, 4. No. 916. 
 
 § 2. — Of the nature of tlie miscarriage for ■which the guarantor is 
 
 liable. 
 
 914. The term miscarriage, used in this section, has 
 not the same meaning as the words debt or default. It 
 comprehends that species of wrongful act, for the con- 
 sequences of which the law would make the party 
 civilly responsible. The wrongful riding the horse of 
 another, without his leave and license, and thereby 
 causing his death, is clearly an act for which the party 
 is responsible in damages ; and therefore falls within 
 the word miscarriage. This term is more properly 
 applicable to a ground of action founded upon a tort, 
 than to one founded upon a contract ; for,. in the latter 
 case, the ground of action is, that the party has not 
 performed what he agreed to perform, not that he has 
 misconducted himself in some matter for which by law 
 he is liable. But the words miscarriage and default, 
 apply to a promise to answer for another with respect 
 to the non-performance of a duty, though not founded 
 upon a contract, (a) 
 
 SECTION 3 . OF AQUEEMENTS IN CONSIDERATION OF MARRIAGE. 
 
 915. This clause does not extend to the contract of 
 marriage itself, therefore promises of marriage are bind- 
 ing though not reduced to writing, and signed by the . 
 party sought to be charged thereon. (&) But all pro- 
 mises and agreements made by one person in con- 
 sideration of the completion of a marriage made by 
 another, are within the statute and must be reduced to 
 writing, whether they are executory or executed, (c) 
 
 SECTION 4. OF CONTRACTS FOR THE SALE AND PURCHASE OF 
 
 LAND OR REALTY. 
 
 916. The note or memorandum of the "agreement 
 for the sale and purchase of lands, tenements, or here- 
 
 (a) Kirkham v. Marter, 2 Bam. & Aid. 516. 
 
 (i) Harrison ■a. Cage, IRaym. 386 ; Bac. Ab. Agreements, C 3. 
 
 (c) Addis, on Cont. 96. 
 
OF PROPERTY BY CONTRACT. 365 
 
 No. 917. Book 2, part 2, tit. 4, chap. 7, sec. 5. No. 917. 
 
 ditaments, or of any interest in or concerning them," 
 must show that there was an agreement, on the part 
 of the vendor, to sell, and of the vendee, to buy; but 
 no technical language or words' of form are requisite ; 
 both the subject matter of the sale and the price to be 
 paid for it, must be specified, (a) 
 
 Numerous questions have arisen as to what shall be 
 considered "lands, tenements, or hereditaments, or 
 any interest in or concerning them." Every contract 
 for the conveyance of land, whatever may be the con- 
 sideration of it, is a contract for the sale of land within 
 the meaning of the statute. (6) And an agreement for 
 growing crops, which are not to be taken out imme- 
 diately, is a contract concerning land;{c) but when the 
 bargain is that the crop shall be removed immediately 
 out of the ground, it will be considered a contract for 
 the sale of personal chattels. (cZ) 
 
 SECTION 5. — OF PROMISES NOT TO BE PERFORMED WITHIN 
 ONE TEAK. 
 
 917. The pontracts to which this clause refers are 
 those which, by the express agreeqient of the parties, 
 are not to be performed within one year from the 
 making thereof; and not to agreements depending 
 upon a contingency either within or beyond the year. 
 The word performed does not signify an inchoate per- 
 formance, or part execution of the agreement ; and 
 the provisions of the statute render a contract void, if 
 it appear to have been the understanding of the parties, 
 at the time, that it was not to be completed within a 
 year, although it might be, ai^d was in fact, in part 
 
 (a) Saunders v. Wakefield, 4 B. & A. 601 ; Hughes v. Parker, 8 M. & 
 W. 247. 
 (h) Frowman v. Gordon's Heirs, Idtt. Sel. Cas. 193. 
 
 (c) Crosby v. Wadsworth, 6 Bast, 602 ; Emmerson v. Heeliss, 2 Taunt. 38. 
 
 (d) Parker v. Stanilands, 11 East, 362; Warwick v. Bruce, 2 M. & S. 
 205. 
 
366 OF THINGS. 
 
 No. 918. Books, part 2, tit. 4, chap. 7, Bee. 6, 5 1,2. No. 920. 
 
 performed within that period.(c) But an agreement 
 which may or may not be performed within a year is 
 not required to be in writing : it nmst appear from the 
 agreement itself that it is not to be performed within 
 a year. (6 J 
 
 SECTION 6. OF THE MEMORANDUM OK NOTE OP THE AGREE- 
 MENT^ 
 
 918. The agreement must be in writing, but the 
 form is not material ; and the signature must be aflfixed 
 to it. This will form the subject of two divisions. 
 
 § 1. — Of the form of the note or memorandum of the agreement. 
 
 919. This need not be formal, nor drawn with 
 technical precision ; any thing under the hand of the 
 party showing that he has entered into the agreement, 
 and upon what terms, is sufficient, although it may be 
 a mere recognition or adoption of a prior contract. An 
 endorsement, or memorandum on the back of a lease, 
 acknowledging that he had agreed to take the premises; 
 or a letter referring to another containing the contract, 
 and agreeing to be bound by it, will be sufficient. (c) 
 
 But it must be remembered that there is a distinction 
 between a promise to do a thing at a future time, as, 
 " I have no objection to guarantee, "(d) and actual pre- 
 sent agreement, "I do hereby guarantee." In the for- 
 mer case there is no present engagement, and, unless 
 notice of acceptance be given, the parties are not 
 bound, while in the latter there is a positive obligation. 
 
 § 2. — Of the signature to the memorandum or note. 
 
 920. The statute requires that the memorandum or 
 note shall be signed " by the party to be bound ;" as 
 it is not required that the signature of the other party 
 
 la) Boydell v. Drummond, 11 East, 142 ; Braoegirdle v. Heald, 1 B. & A. 
 722 ; Birch v. Earl of Liverpool, 9 R. & Or. 392 ; Hinckley v. Southeate, 
 11 Verm. 428. " ^ 
 
 {b-S Russel V. Slade, 12 Conn. 455. 
 
 (c) Jackson v. Lowe, 1 Bing. 9 ; 2 B. & P. 238. 
 
 (d) Symmons v. Want, 2 Stark, 371 ; Mozley v. Tinckler, Cr. M. & Eos. 
 692 ; Mclver ». Richardson, 1 M. & S. 557. 
 
OF PROPERTY BY CONTRACT. 367 
 
 No. 920. Book 2, part 2, tit, 4, chap. 7, sec. 6, § 2. No. 920. 
 
 should be affixed, the contract may be enforced with- 
 out it. (a) 
 
 As to the form of the signature, it may be by the party 
 subscribing his name at the end of the memorandum, 
 or in any other way, which clearly shows it to be his 
 act; as, "I, James Crockford, agree," etc., which is 
 sufficient. (&) It may be written in ink or with a pen- 
 cil ;(c) it may be with his name in full or with initials, 
 or with his mark.(c^) But the signature, wherever 
 placed, 'or however written, must, of course, be made 
 with a view of authenticating the document as a con- 
 cluded contract, and not with a view merely of altering 
 or settling a draft, or approving of propositions and 
 proposals not finally arranged and decided upon.(e) 
 
 But the signature may be affixed by an agent, who 
 must, however, be a " person lawfully authorized." 
 This authority ought to be in writing. It has been 
 held, however, with regard to these contracts, that the 
 name of the party sought to be charged, printed in par- 
 ticulars of a bill of sale, or other printed paper embody- 
 ing the terms of the contract, may be a signature by 
 " a person lawfully authorized," within the meaning 
 of the statute, provided the printing was done by bis 
 authority, or received his subsequent sanction. (/) 
 
 An auctioneer or his clerk, taking down the bid- 
 dings, is the agent of both the seller and the buyer, (g) 
 And the delivery of a bought note or a sold note to 
 the parties will be considered a sufficient compliance 
 with the statute. (A) 
 
 (a) Laythoaip v. Bryant, 2 Bing. N. S. 735 ; S. C. 3 Sc. 238 ; Thorn v. 
 Kempster, 6 Taunt. 788. 
 
 (b) Knight v. Crockford, 1 Esp. 190 ; Taylor v. Dobbins, 1 Str. 399 ; 
 Saunderson v. Jackson, 2 B. & P. 239. 
 
 (c) Geary v. Physiek, 5 B. & 0. 234. 
 
 (d) Hubert v. Moreau, 12 Moore, 219; Phillimore v. Barry, 3 N, & P. 
 228 ; S. 0. 1 Camp. 513. 
 
 (e) Sugd. Vend. & Purch. 159, 179. 
 
 (/) Schneider v. Norris, 2 M. & S 288 ; Maclean v. Dunn, M. & P. 766 ; 
 2 B. & P. 238. 
 
 (g) Hinde v. Whitehouse, 7 East, 568. 
 
 (A) Story on Agency, ^ 28 ; 1 Bell's Com. 435, 5th ed. ; Bouv. L. D. 
 verb. Bought Note ; Id. Sold Note. 
 
368 OF THINGS. 
 
 No. 921. Book 2, part 2, tit. 5, chap. 1. No. 922. 
 
 One contracting party cannot be the agent of the 
 other, (a) nor can the clerk of one be agent of the 
 other, without a special authority. (6) 
 
 TITLE v.— OF PARTICULAK CONTKACTS. 
 
 921 . After having taken a general view of contracts, 
 it seems proper to consider some of the principal con- 
 tracts, each by itself, so as to form a more correct and 
 definite idea of the mode of acquiring title to personal 
 property. These are the contracts : 1, of sale ; 2, of 
 bailments ; 3, of bills of exchange ; 4, of promissory 
 notes ; 5, of marine insurance ; 6, of life insurance ; 
 7, of insurance against fire; 8, of bottomry and respon- 
 dentia; 9, of games; 10, of agency; 11, of suretyship; 
 12, of partnership. 
 
 CHAPTER I.— OF SALE. 
 
 922. Traditions, and the observations made among 
 civilized nations, agree with the speculations which 
 show that barter preceded the contract of sale. It was 
 not always convenient to have objects which would be 
 taken in exchange for others, and this want was the 
 cause of the invention of money. In choosing the 
 material to make money, which should be the sign of 
 value of all objects, it was desirable to select one which 
 would not be easily destroyed by use, and which might 
 be conveniently divided. Metal was found very suita- 
 ble for this purpose, and by selecting a precious metal, 
 which might be carried without inconvenience, the end 
 was attained. Gold, silver, and some less precious 
 metals, have been used for this purpose. In order to 
 avoid delay and inconvenience in regulating their 
 weight and quality when passed, the governments of 
 
 (a) Wright v. Dannah, 2 Camp. 203. 
 
 (J) Graham v. Mason, 7 Sc. 769 ; Graham v. Fretwell, 4 So. N. S. 25. 
 
OF PARTICULAR CONTRACTS. 369 
 
 No. 923. Book 2, pan 2, m. 5, chap. 1. No. 923. 
 
 the civilized world have caused them to be manufac- 
 tured in certain portions, and marked with a stamp, 
 which attests their value ; this is called money. {a) 
 
 These researches on the subject of money bring us 
 to the conclusion that the price of a thing sold should 
 be paid in money. The invention of money, and the 
 contract of sale, are therefore coeval. 
 
 923. A sale is an agreement by which one of the 
 contracting parties, called the seller, gives a thing and 
 passes a title to it, in exchange for a certain price in 
 current money, to the other party, who is called the 
 buyer or purchaser, who, on his part, agrees to pay 
 such price. (6) 
 
 This contract differs from a barter or exchange in 
 this, that in the latter the price or consideration, in- 
 stead of being paid in money, is paid in goods or 
 merchandise, susceptible of a valuation. It differs 
 from accord and satisfaction, because in that contract, 
 the thing is given for the purpose of quieting a claim 
 and not for a price. An onerous gift, when it imposes 
 as a burden the payment of a sum of money, and is 
 accepted by the donee, is in the nature of a sale ; when 
 it requires the delivery of some other thing as a con- 
 dition precedent, it is in the nature of a barter. And 
 when partition is made between two or more joint 
 tenants of a chattel, it would seem the contract is in 
 the nature of a barter. 
 
 To constitute a valid sale there must be, 1, proper 
 parties; 2, a thing which is the object of the contract; 
 3, a price agreed upon ; 4, the consent of the contract- 
 ing parties ; 5, the performance of certain acts required 
 to complete the contract. In a sixth section will be 
 considered the different kinds of sale. 
 
 (a) 1 Inst. 207 ; 1 Hale's Hist. 188 ; Pardees. n. 22 ; Domat, liv. Prel. 
 t. 3, c. 2, n. 6. 
 
 (h) Noy's Max. ch. 42; Shep. Touchs. 244; Pardes. Dr. Com. n. 6 ; 1 
 Duv. Dr. CiT. Fr. n. 7 : Civ. Code of Louis, art. 2414 ; Poth. Vente, art. 
 Prel. ; Vail v. Strong, 10 Verm. 457. Mr. Chancellor Kent, 2 Com. 268, 
 says, " A sale is a contract for the transfer of property from one person to 
 
 Vol. I. 24 
 
370 OF THINGS. 
 
 No. 924. Book 2, part 2, tit. 5, chap. 1, sec. 1, 2. No. 925. 
 
 SECTION 1. — OF THE PARTIES TO A SALE. 
 
 924. In treating of the persons capable of entering 
 into a contract, we considered the capacities of persons 
 for such a purpose ; little, therefore, need be said here. 
 As a general rule, all persons sui juris, or those who 
 have all the rights of freemen, without being under 
 the control of another, may be either buyers or sellers. 
 Corporations may also buy and sell But to this gene- 
 ral rule there are several exceptions. 
 
 1. There is a class of persons who are incapable of 
 purchasing, except sub modo, as infants and married 
 women. 
 
 2. Another class, who, in consequence of their 
 peculiar relation with regard to the owner of the thing 
 sold, are totally incapable of becoming purchasers, 
 while that relation exists; these are trustees, guar- 
 dians, assignees of insolvents, and, generally, all per- 
 sons who, by their connection with the owner, or by 
 being employed concerning his affairs, have acquired 
 a knowledge of his property, as attorneys, convey- 
 ancers, and the like. (a) 
 
 SECTION 2. OF THE SUBJECT-MATTER OF THE CONTRACT OF 
 
 SALE. 
 
 925. There must be a thing which is the object of the 
 sale ; for if the thing sold at the time of the sale had 
 ceased to exist, it is clear that there can be no sale ; 
 if, for example, Paul sells his horse to Peter, and, at 
 the time of the sale the horse was dead, unknown to 
 both parties : or if Paul and Peter, being in Philadel- 
 phia, the former sells his house situated in Cincinnati 
 to the latter, both parties supposing the house to exist, 
 when, in fact, it was then burned down, it is manifest 
 that there was no sale, because there was not a thing 
 
 another for a valuable consideration." This applies to a barter as well as 
 to a sale; the barter of one horse for another would, according to this 
 definition, be a double sale. , 
 
 (a) Barker v. The Marine Ins. Co., 2 Mason, 369. 
 
OF PARTICULAR CONTRACTS. 371 
 
 No. 926. Book 2, part 2, tit. 5, chap. 1, sec. 2. No. 926. 
 
 to be sold. Again, if Paul sell to Peter the foal, of 
 which his mare is then pregnant, and, in consequence 
 of an abortion, no foal is born, there is no sale. (a) 
 
 The thing which is the object of the sale must be a 
 thing in commerce, for things which are not in com- 
 merce, as the air, the water of the sea, a port, and the 
 like, cannot be sold. 
 
 Not only a thing in possession may be sold, but a 
 chose in action, as a debt, and when such a debt is sold, 
 the sale entitles the buyer to all the securities which 
 the seller holds for its payment, they being mere 
 accessories to it. (6) 
 
 There must be an agreement as to the specific goods, 
 which form the basis of the contract of sale ; in other 
 words, to make a perfect sale, the parties must have 
 agreed, the one to part with the title to a specific article, 
 and the other to acquire such title ; and when they 
 have so agreed, the purchaser takes the thing sold, in 
 the same state in which it was held by the vendor, 
 subject to the same liabilities ;(c) and accessories 
 generally pass with the principal article sold ; as, the 
 sale of the materials of a newspaper establishment will 
 carry with it, as an accessory, the subscription list.((^) 
 But it is not always easy to say what articles are 
 principal and what accessories ;(e) a boat, it has been 
 held, is not an accessory or appurtenance to a vessel. (/) 
 
 926. When a thing is sold, which is not specified, 
 the property in the thing is not changed until it has 
 been fully separated from the mass from which it was 
 to be taken; as a sale of one hundred bushels of wheat, 
 to be measured out from a heap, passes no property till 
 it has been so measured, and, if it should be destroyed 
 
 [a] Dig. 18, 1, 8. See McCarty v. Blevins, 5 Yerg. 195 ; Smith v. Atkins, 
 13 Verm. (3 Wash, b.) 461. 
 (h) Fostej V. Fox, 4 Watts & Serg. 92. 
 
 (c) Jones V. Steamboat Commerce, 14 Ohio, 408. 
 
 (d) McFarland v. Stewart, 2 Watts, 111. 
 
 (e) Co. Litt. 152 a; Co. Litt. 121 b, note. 
 
 (/) Starr v. Goodwin, 2 Root, 71. Sed vide contra Pardes. n. 599. 
 
372 OF THINGS. 
 
 So. 927. Book 2, part 2, tit. 5, chap. 1, sec! 3, § 1,2. No. 929. 
 
 or deteriorated, while in that state, the loss will fall 
 upon the seller, res perit domino. {a) 
 
 SECTION 3. — OF THE PRICE. 
 
 927. To constitute a sale, there must be a price, 
 which is the consideration in money given for the 
 purchase of a thing. The price must have the three 
 following qualities. 
 
 § 1. — To a sale there must be an actual or serious price. 
 
 928. The price must be serious, or such a one as 
 the seller intends to require to be paid to hito; if, 
 therefore, one should sell a thing to another, and, hy 
 the same agreement, he should release the buyer from 
 its payment, the contract would not be a sale, but a 
 gift, because, in that case, the buyer never agreed to 
 pay any price, the same agreement by which the title 
 to the thing passed to him, discharging him from the 
 obligation to pay for it. As to the quantum of the 
 price that is altogether immaterial, unless there has 
 been fraud in the transaction. 
 
 § 2. — Of the certainty of the price. 
 
 929^ The price must be certain and determined, but 
 upon the maxim, id certum est quod reddi cerium potest, 
 a sale may be valid, although it is agreed that the 
 price of the thing sold, shall be determined by a third 
 person. (6) But still there must be a price; if, for 
 example, I sell my watch for the price my father gave 
 for it, and, upon inquiry, it was found my father did 
 not buy it, but received it as a gift from his father, 
 there would be no contract for want of a price or con- 
 sideration. 
 
 When the parties have not expressed any price in 
 
 (a) Blackb. on Sales, 122 ; Houdlette v. Tallman, 2 Shep. 400; Deyane 
 i;. Fennell, 2 Iredell, 36 ; Woods v. McGee, 7 Ham. part 2, lf7 ; Thomp- 
 son V. Gray, 1 Wheat. 75 ; Dennis v. Alexander, 3 Penn. St R. 50 ; Young 
 V. Austin, 6 Pick. 280. 
 
 [b) Brown v. Bellows, 4 Pick. 179. 
 
OF PARTICULAR CONTRACTS. 373 
 
 No. 930. Book 8, part 2, tit. 5, chap. 1, sec. 4. No. 931. 
 
 their contract, the presumption of law is, that the thing 
 is sold for the price it generally brings at the time and 
 place where the agreement was made. (a) 
 
 If the price cannot be reduced to a certainty, there 
 is no contract, for there is no consent of the parties to 
 the price. 
 
 § 3. — The price must be paid in money. 
 
 930. The price must consist in a sum oi money which 
 the buyer agrees to pay to the seller, for if it be paid 
 in any other way, the contract is not a sale, but an 
 exchange or barter. But it is only requisite that 
 the agreement should be for payment in money, in 
 the sequel it may be changed, and the creditor may 
 take goods in payment, and the contract will still be a 
 sale. 
 
 It is not requisite that the money should be paid 
 down, either at the time of the sale, or the dehvery of 
 the goods ; it may be upon a credit, or payable at a 
 future time. (6) 
 
 But unless so stipulated, the sale is understood to be 
 for cash.(c) 
 
 SECTION 4. OP THE CONSENT OP THE CONTRACTING 
 
 PARTIES. 
 
 931. By consent, is meant an agreement to some- 
 thing proposed. It does not consist simply in a vague 
 will to sell or to buy ; it must bear on all the condi- 
 tions which may be suggested by the circumstances of 
 the case, or imagined by the caprice of the contracting 
 parties ; thus, the designation of the thing sold, the 
 amount of the price, the terms of payment, and the 
 warranty, either express or implied ; unless the con- 
 sent be given to all these, there is no consent at all. 
 
 (a) Beatty v. Scrivener, 3 Monr. 133 ; Jenkins v. Richardson, 6 J. J. 
 Marsh. 441 ; Hill w. Hill, Coxe, 261. See Lyle v. Lyle, 6 Har. & John. 273. 
 (J) Girard v. Taggart, 5 S. & R. 19. 
 (c) Oammayer v. United German Lutheran Churches, 2 Sand. Ch.^K. 186. 
 
374 OF THINGS. 
 
 No. 932. IBook 2, part 2, tit. 5, chap. 1, sec. 4, } 1. No. 933. 
 
 The consideration of the form and of the substance of 
 such consent, will occupy the two following sections. 
 
 § 1. — Of the form of giving consent to a sale. 
 
 932. The consent to a sale may be given, in general, 
 as regards personal property, verbally as well as in 
 writing, and both will be equally binding ; all that is 
 required in those cases is, that both should expressly 
 agree to some certain thing. But the English statute 
 of 29 Car. II., c. 3, which has been reenacted in most 
 states of the Union, with alterations and amendments, 
 commonly called the statute of frauds, enacts, section 
 17, " that no contract for the sale of any goods, wares 
 and merchandise, for the price of jGIO or upward, shall 
 be allowed to be good, except the buyer shall accept 
 part of the goods so sold, and actually receive the 
 same, or give something as earnest to bind the bargain, 
 or in part payment, or some note or memorandum in 
 writing, of the said bargain, to be made or signed by 
 the parties to be. charged by such contract, or their 
 agents, thereunto lawfully authorized."(a) 
 
 933. It not unfrequently happens that the consent 
 of the parties to a contract of sale is given in the 
 course of a correspondence. To make such contract 
 valid, both parties must concur in it at the same time; 
 if, therefore, Paul, in New York, write to Peter, in 
 New Orleans, offering to purchase one hundred bales 
 of cotton, and Paul writes to Peter that he accept his 
 offer, still there is no contract till the latter has re- 
 ceived the letter; for, till then, both parties may- 
 withdraw their letters, Paul his offer, and Peter his 
 acceptance of it. (6) This will appear proper when 
 we consider that the letter of Peter is only a mute 
 messenger by which he announces his will, accepting 
 
 (a) Vide ante, B. 1, t. 7, n. 890. 
 
 (b) McOulloeh .V. iEagle Ins. Co., 1 Pick. 278 ; Thayer v. Ins. Co., 10 
 Pick. 326. 
 
OF PARTICULAR CONTRACTS. 375 
 
 No. 934. Books, part 2, tit. 5, ohajj. 1, sec. 4, 42, art. 1,2. , No. 937. 
 
 of the contract proposed, and nothing certainly pre- 
 vents a man from revoking a power of attorney which 
 he has given, before the act authorized has been per- 
 formed, and this letter, having no greater authority, 
 it may be revoked at any time before it has been 
 received; and till then, Paul, too, might revoke his 
 offer, (a) 
 
 934. There is an implied consent to a sale, when a 
 party, by his acts, approves of what has been done ; as, 
 if he knowingly use tbe goods left at his house by 
 another who intended to sell them, he will, by that 
 act, confirm the sale. 
 
 § 2. — Of the substance of the consent to a sale. 
 
 935. The consent must relate, 1, to the thing which 
 is the object of the sale ; 2, to the price ; and, 3, to 
 the sale itself. 
 
 ^rt. 1. — Consent as to the thing sold. 
 
 936. Both parties must agree upon the same object 
 of the sale ; if, thefefore, one give his consent to buy 
 one thing, and the other to sell another, there is no 
 sale ; nor is there any sale when one sells a bag which 
 he believes is full of wheat, and sells it as such, and, 
 in fact, it was full of oats, because there is no consent 
 as to the thing which is the object of the contract. But 
 a sale would be valid, although the purchaser might be 
 mistaken as to the quality of the thing sold, unless 
 there was fraud in the transaction. (&) 
 
 Jlrt. 2. — Of consent as to the price. 
 
 937. The parties must agree upon the same price, 
 
 (a) In England, a different rule has been adopted ; there, the moment the 
 letter accepting the offer has been put into the mail, both parties are bound. 
 Such is the decision of the case of Adams v. Lindsell, 1 B. & A., 681 ; the 
 court give as a reason, that " the defendants must be considered, in law, as 
 making, during every instant of time their letter was travelling, the same 
 identical offer to the plaintiff; and then the contract is completed by the 
 acceptance of it by the latter." 
 
 (5) Swett V. Colgate, 20 John. 196 ; Borrekins v. Bevan, 3 Kawle, 23 ; 
 Jennings v. Gratz, 3 Rawle, 168. 
 
376 OF THINGS. 
 
 No. 938. Book 2, part 2, tit. 5, chap. 1, sec. 5. No. 939. 
 
 for if the seller intends to sell for a greater price than 
 the buyer intends to give, there is no mutual consent ; 
 but if the case were reversed, and the seller intended 
 to sell for a less price than the buyer intended and 
 offered to give, the sale would be good for the lesser 
 sum ; for he who wants to buy for a greater sum, must 
 be presumed to want to buy for a less, and both parties 
 agree as to this. (a) As, if the seller write a letter to 
 the buyer offering to sell one hundred barrels of pork 
 at four cents per pound, and on the same day the buyer 
 write to the seller, offering for the same pork four and 
 a half cents per pound, the contract will be complete 
 on the receipt of the letters by the parties, for the 
 buyer who offered four and a half cents per pound, 
 will be presumed to accept the offer of the seller to 
 sell at four. 
 
 Art. 3. — The consent must be on the sale itself. 
 
 938. The consent must be on the sale itself; that is, 
 one of the parties intends to sell, and the other intends 
 to buy. If, therefore, Peter intended to lease his house 
 for ten years, at three hundred dollars a year rent, and 
 Paul intended to buy the house for three thousand 
 dollars, payable in yearly instalments of three hundred 
 dollars each, there would not be a contract of sale nor 
 a lease. (6) 
 
 SECTION 5. WHEN PEOPEKTY PASSES BY THE SALE. 
 
 939. Whether the title shall pass to the purchaser 
 at the time of the sale, or at what other time, depends 
 upon the express or implied agreement of the parties. 
 An agreement for the sale of goods is primd, facie a 
 bargain and sale of those goods ; but this arises merely 
 from the presumed intention of the parties, and if it 
 appear that the parties have agreed, not that there shall 
 be a mutual credit, by which the property is to pass 
 
 (a) Poth. Vente, n. 36. 
 (J) Poth. Vente, n. 37. 
 
OF PARTICULAR CONTRACTS. 377 
 
 No. 940. Books, pan 2, tit. 5, chap. 1, sec. 8, § 1. No. 941. 
 
 from the seller to the buyer, and the buyer is bound 
 to pay the price to the seller, but that the exchange of 
 the money for the goods shall be made on the spot, no 
 property is transferred, for it is not the intention of the 
 parties to transfer any. (a) 
 
 But when the buyer makes a part payment, or by 
 consent, a future day of payment is fixed, the parties 
 clearly manifest an intention that they should have 
 some time to complete the sale by payment and de- 
 livery, and, in the mean time, they are trustees for 
 each other, the one of the property in the chattel, and 
 the other in the price. 
 
 As a general rule, when the bargain is made for the 
 purchase of goods, and nothing is said about payment 
 and delivery, the property passes immediately, so as to 
 cast upon the purchaser all future risk, if nothing re- 
 mains to be done to the goods, although he cannot take 
 them away without paying the price. (6) 
 
 SECTION 6. OF THE OBLIGATIONS OF THE SELLER. 
 
 940. The seller, or he who transfers the title of a 
 thing to another called the buyer, in consideration of 
 money to be paid by such buyer to him, binds himself 
 to transfer the title and the property in the thing; that 
 is his principal or rather his only engagement. This 
 engagement is divided into two branches, the obliga- 
 tion to deliver the thing sold, without which the buyer 
 could not exercise the right of property, and to warrant 
 the title, in certain cases, without whach the right of 
 property might be disturbed, interrupted, or even 
 totally destroyed. But this warranty applies only 
 when the seller sells the property as his own, and 
 when it is in his possession. 
 
 § 1. — Of delivery. 
 
 941. This section will be divided into four parts: 
 
 (a) Wilmarth v. Mountford, 4 Wash. 0. 0. 79. 
 
 (A) Bloxam v. Sanders, 4 B. & C. 941 ; Bloxam v. Morley, 4 B. & Or. 
 481. 
 
378 OF THINGS. 
 
 No. 942. Books, part 2, tit. 5, chap. 1, sec. 6, 5 1, art. 1. No. 943. 
 
 1, the different modes and effects of the dehvery ; 
 
 2, the time and place of the delivery; 3, how it is to 
 be made ; 4, the effect of delivery. 
 
 •Art. 1. — Of the different modes and effects of a delivery. 
 
 942. A delivery is the transmission of the possession 
 of a thing from one person into the power and pos- 
 session of another; or it is an execution of a sale, 
 without which the intent of the parties would not be 
 attained, (a) 
 
 Originally, delivery was a clear and unequivocal act 
 of real possession, accomplished by placing the subject 
 to be transferred into the hands of the buyer, or his 
 agent, or into their respective warehouses, vessels, 
 carts, and the like. This actual delivery was justly 
 considered as the true badge of transferred propertj?-, 
 as importing full evidence, by signs apparent to the 
 senses, of the consent to transfer; preventing the 
 appearance of possession or ownership in the transferrer, 
 and avoiding uncertainty and risk in the title of the 
 buyer. 
 
 The complications of modern trade, however, ren- 
 der a strict adherence to this rule impossible. Not 
 unfrequently the purchaser cannot take immediate 
 possession, and the seller cannot make an immediate 
 delivery. The bulk of the goods ; their situation, as 
 when they are deposited in public custody as a security 
 for duties, or in the hands of a manufacturer for the 
 purpose of having some operation of his art performed 
 upon them, to fit them for the market ; the distance 
 they are from the place of sale ; the frequency of bar- 
 gains made by correspondents residing in distant 
 countries; and many other obstructions, render it 
 impracticable to receive or to make an actual delivery. 
 In these and such like cases, something short of actual 
 delivery is sufficient to transfer the property. 
 
 (a) Domat, Lois Civ. 1. 1, t. 2, s. 2, n. 5. 
 
OF PARTICULAR CONTRACTS. 379 
 
 No. 943. Books, part 2, tit. 5, chap. 1, Bee. 6, 5 I, art. 2. No. 946. 
 
 943. When the thing sold is not delivered by the 
 actual removal, it may be transferred in a variety of 
 ■W"9,ys which have the effect of a delivery, and are con- 
 sidered as a proof of it. Acts from which a delivery 
 may be presumed are equivalent to a delivery, at least 
 between the parties. A symbolical, delivery is, in many 
 cases, equivalent to an actual delivery ; as, by deliver- 
 ing the keys of a house in which goods are stored, 
 will be a delivery of the goods ;(a) so the sale of a 
 ship by a bill of sale, properly attested, passes the 
 title of a ship at sea. (6) In England a distinction has 
 been made between a bill of sale for the transfer of a 
 ship while in the country, and a ship at sea ; the for- 
 mer is called simply a bill of sde, but when a ship at 
 sea is to be transferred, it is called a grand bill of 
 sale. In this country, no such distinction appears to 
 exist, (c) 
 
 944. In some cases no delivery is requisite, as when 
 Peter holds property belonging to Paul as a bailee, and 
 Paul sells him the property, the sale will be complete, 
 and it will not be necessary to make a double delivery 
 by Peter to Paul, and then by Paul to Peter. ((Z) 
 
 945. On an entire contract, a delivery of a part of 
 the goods sold, for the whole, will operate as a good 
 delivery of the whole, (e) so as to vest the property 
 in the purchaser. 
 
 jlrt. 2. — Of the time and place of delivery. 
 1. Of the ii?ne. 
 
 946. The delivery must be made at the time agreed 
 upon between the parties, and if nothing has been 
 agreed upon as to the time, then it must be made 
 
 (a) Jordan v. James, 5 Ham. 88 ; Pleasants v. Pendleton, 6 Rand. 473. 
 See Baily v. Ogden, 3 John. 399. 
 (i) Howland v. Harris, 4 Mason, 497 ; Brinley v. Spring, 7 Greenl. 241. 
 
 (c) 4 Mass. 661. 
 
 (d) Nichols V. Patten, 6 Shep. 231 ; 1 Duverg. n. 252. See Linton v. 
 Butz, 7 Penn. St. R. 89. 
 
 (e) Shurtleff «. Willard, 19 Pick. 202 ; Legg v. Willard, 17 Pick. 140. 
 
380 OF THINGS. 
 
 No. 947. Book 2, part 2, tit. 5, chap. 1, see. 6, § 1, art. 3. No: 948. 
 
 whenever required by the buyer, on his paying the 
 price ; and even without his paying the price if the 
 goods were sold on credit, unless indeed in cases whefe 
 the seller would have a right to stop the things sold 
 in transitu. 
 
 2. Of the place. 
 
 947. When a place of delivery has been agreed 
 upon, the delivery must of course be there. But it 
 frequently, happens that no place has been mentioned 
 in the agreement, and it cannot be ascertained from 
 the acts of the parties where it ought to be made. In 
 such case the rule is that the delivery is to be made 
 where the thing was when it was sold, (a) unless indeed 
 it was on its way, being transported from one place to 
 another, and in this last case, it must be delivered at 
 its place of destination. But the rule that the thing 
 sold must be delivered at the place where it was when 
 sold, applies only to determinate things, as when I sold 
 you my horse Napoleon; for if the thing be an indeter- 
 minate thing, as a horse, which may be any horse, then 
 it must be delivered at the residence of the seller. 
 
 Sometimes the place of dehvery may be ascertained 
 from the nature of the thing to be delivered^ or from 
 the custom or usage of the place, which always forms a 
 part of every contract. (&) 
 
 When there are two places of delivery in the alter- 
 native, as to deliver cotton in Charleston or Savannah, 
 it is at the option of the seller to deliver at either 
 place, but in that case, he must give notice of his elec- 
 tion.(c) According to Pothier, where the contract is 
 to deliver at Charleston and Savannah, one half must 
 be delivered at each place. ((Z) 
 
 .^rt. 3. — How the thing is to be delivered. 
 
 948. This head will be examined under three sub- 
 
 (a) Barr v. Myers, 3 Watts & Serg. 295. 
 (4) Boynton v. Veazie, 11 Shep. 286. 
 
 (c) Rogers v. Van Hoesan, 12 John. 221. 
 
 (d) Poth. Obi. n. 241 ; 1 Duverg. n. 261. 
 
OF PARTICULAR CONTRACl S. 381 
 
 No. 949. Book 2, part 2, tit. 5, chap. 1, sec. 6,5 1, art. 3. No. 950. 
 
 divisions: 1, at whose expense tlie delivery must be 
 made; 2, in what state the thing sold must be deli- 
 vered ; 3, of the loss between the sale and the time of 
 delivery. 
 
 1. At lohose exfense the delivery must he made. 
 
 949. The seller is bound to bear all the expense 
 attending the delivery; for example, if the thing is 
 pledged at the time it is sold, the seller must redeem 
 it, and deliver it to the buyer clear of the lien or 
 pledge. Another example may be mentioned, where 
 goods are in the custom-house or public warehouses, 
 liable for duties to the government, the owner must 
 deliver the goods clear of those duties. 
 
 The expense of measuring and weighing articles, 
 when they are sold out of a heap, or a large body from 
 which they are to be separated, must also be borne by 
 the seller. As soon as that is done, and the buyer 
 has notice of it, the seller's expenses are at an end, 
 and the buyer must remove them at his own expense, 
 unless some contrary provision has been made in the 
 contract. 
 
 2. In what state the thing sold must be delivered. 
 
 950. When a determinate article is sold to be deli- 
 vered on a future day, it is to be delivered to the buyer 
 on that day in the state in which it is then, provided 
 the deterioration has not taken place in consequence 
 of the seller or those in his employ; for example, I sell 
 you my horse Napoleon, to be delivered on the first 
 day of January next, and, in the mean time, he loses 
 his sight without any fault of mine or of my agents or 
 servants; the loss is yours, and you are bound to take, 
 him as he is at the time I bound myself to deliver 
 him. When the thing is indeterminate, as if I sell you 
 a horse, without specifying any horse, or one hundred 
 bushels of wheat, without saying what wheat, the de- 
 terioration to either is my loss. 
 
382 OF THINGS. 
 
 No. 951. Book 2, part 2, tit 5, chap. 1, sec. 6, } 1, art. 4. 
 
 No. 
 
 3. Of the loss of the thing between the sale and the time of delivery. 
 
 951. When a determinate object is sold, as the horse 
 Bucephalus, and without any fault of the seller, and 
 before he is in default as to the time of dehvery, he 
 dies, it is evident the seller cannot deliver him, but if 
 there remains any part of the thing sold, he is bound 
 to deliver that. But when the thing sold has been 
 lost through the fault of the seller, or after he has been 
 put in default, by not delivering it agreeably to 
 the provisions of the contract, he is responsible in 
 damages. (a) He is equally liable if it perishes in 
 consequence of the acts of some one for whom he is 
 responsible. 
 
 If the subject of the sale has been applied to public 
 use, by virtue of law, as if my horse Bucephalus, which 
 I sold to you, has been taken by the government to 
 carry on a war, all you can ask is to be subrogated 
 to my rights, to receive the indemnity paid by the 
 government. 
 
 But the thing may subsist, and still I may not be 
 bound to deliver it to you; as, if robbers, without any 
 fault of mine, or those for whom I am responsible, 
 should steal it.(&) The law will not compel a man to 
 do that which he cannot possibly perform : Lex non 
 cogit ad impossihiUa.{c) 
 
 .Art. 4. — Of the effect of a delivery. 
 
 952. When the contract of sale is made without 
 fraud, a delivery will vest all the rights of the seller in 
 the buyer, so that the creditors of the former can have 
 no rights whatever to the chattel so sold.(c?) So long 
 as no delivery has taken place, if the seller should sell 
 
 ^ the chattel twice, to different persons, priority of time 
 prevails, and qui prior est tempore, potior est jure; but 
 
 (a) Puffend. Dr. de la Nat. et des Gens, 1. 5, c. 5, 6 3 ; Bowyer's Civ. 
 Law, 208. ^ 
 
 (b) Poth. Obi. n. 656 ; Poth. Vente, n. 60. 
 
 (c) Co. Litt. 231 b. 
 
 (d) Dig. 50, 17, 54 ; Poth. Vente, n. 321. 
 
OF PARTICULAR CONTRACTS. 883 
 
 No. 953. Booka, part2, tit. 5, chap. 1, sec. 6, §2, avt. 1. No. 954. 
 
 when a bona fide purchaser of a chattel obtains posses- 
 sion, he is preferred to a purchaser prior in date, for 
 in, pari causa possessor potior est. {a) He is not to be 
 deprived of the fruits of his care and vigilance in 
 obtaining possession. Jus civile vigilantibus scriptum 
 est.{b) 
 
 § 2. — Of the warranty of a thing sold. 
 
 953. Warranties in relation to the sale of personal 
 chattels are of two kinds, express and implied. 
 
 An express warranty is one by which the warrantor 
 covenants or undertakes to insure that the thing which 
 is the subject of the contract, is, or is not, as therein 
 mentioned ; as, that a horse is sound ; that he is not 
 five years old, and the like. 
 
 An implied warranty is one which, not being ex- 
 pressed, the law implies by the fact of the sale. This 
 section will be confined to the consideration of the lat- 
 ter ; these are divided into, 1, implied warranties of 
 title ; 2, implied warranties of the quality of the thing 
 sold. 
 
 Art. 1. — Of implied warranty of title. 
 
 954. When a man sells a chattel as his own, when 
 it is in his possession, he warrants the title, when sold, 
 at a fair price ; and a fair price is a warranty of title, 
 under these circumstances. But if he is not in pos- 
 session of the article sold, the rule of caveat emptor 
 prevails, and the purchaser buys at his peril. (c) The 
 meaning of this rule is, that the purchaser of a chattel 
 must take all the risk of the title of the chattel, when 
 not in possession of the seller, and of its quality, , 
 
 (a) Dig. 50, 17, 128; Poth. Vente, n. 320. 
 
 [b) Co. Litt. 290 b, note 1, § 15. 
 
 (c Paisley v. Freeman, 3 T. R. 57, 58; Oro. Jac. 197; 1 Story, Eq. 
 ^ 212. 
 
384 OF THINGS, 
 
 No. 955. Book 2, part 2, tit. 5, chap. 1, sec. 7. No. 956. 
 
 whether it be in his possession or not, unless he asks a 
 special or express warranty. (a) 
 
 Art. 2. — Of the implied warranty of the quality of goods. 
 
 955. In general there is no implied warranty as to 
 the quality of goods, by a mere sale or exchange. 
 The maxim oi caveat emptor applies in such case. (6) 
 
 But to this rule there are various exceptions : 
 
 1. Where the purchaser had no opportunity, before 
 or at the time of sale, of examining the goods, there is 
 an implied warranty that they are of a merchantable 
 quality. {c) 
 
 2. Upon the sale of goods by sample, there is an 
 implied warranty, by the seller, that the bulk of the 
 commodity is equal in quality to the sample exhibited 
 to the buyer.((Z) 
 
 3. When provisions are sold for consumption, there 
 is an implied warranty that they are sound. (e) But 
 when they are an object of merchandise, there is no 
 such implied warranty. (/) 
 
 When there is an implied warranty of quality, if the 
 articles prove not to be sound they must be returned, 
 or the purchaser will have no remedy, (g) 
 
 SECTION 7. OF THE RIGHTS OF THE SELLER. 
 
 956. The rights of the seller are, 1, to be paid the 
 price ; 2, to be indemnified for any expenses he may 
 have incurred for the buyer to preserve the thing sold; 
 
 (a) This rule has been very severely assailed, not without some appear- 
 ance of justice, as being the instrument of falsehood and fraud ; but although 
 its policy has been frequently questioned, it is too well established to be 
 disregarded. Coop. Just. 611, note. See 8 Watts, 308, 309. 
 
 (J) Co. Litt. 102 a ; 7 S. & R. 482. 
 
 (c) Howard v. Hoey, 23 Wend. 350; 4 Camp. 144; Borekins ». Brown, 
 3 Rawle, 23 ; Jennings v. Gratz, 3 Rawie, 168. 
 
 (d) Magee v. Billingsley, 3 Ala. 679 ; Waring v. Mason, 18 Wend. 425 ; 
 Wilhngs 11. Consequa, 1 Pet. 0. C. 301; Rose v. Beatee, 2 N. & McC. 538 ; 
 3 Rawle, 23, 37 ; The Monte Allegre, 9 Wheat. 616. 
 
 (e) 3 Bl. Com. 166. 
 
 (/) Emerson v. Brigham, 10 Mass. 197 ; Moses v. Mead, 1 Denio, 378. 
 (e;) 3 Ala. 679 ; 18 Wend. 425 ; Shaw v. Levy, 17 S. & R. 99 ; Hazard 
 V. Hamlin, 5 Watts, 201. 
 
OF PARTICULAR CONTRACTS. 385 
 
 No. 957. Book 2, part 2, tit. 5, chap. 1, sec. 7, } 1, 2,3^ No. 959. 
 
 3, to stop the thing «i transitu, when the buyer has 
 failed and the price has not been paid. 
 
 § 1. — Rights of the seller to be paid or secured the price. 
 
 957. When the article which is the object of the 
 sale has been sold for cash, the seller is, of course, 
 entitled to be paid at the time of delivery, and when 
 nothing is said about the time of payment, and there 
 are no circumstances which show that a credit was to 
 be given, the money is due as if expressly sold for cash, 
 and the goods cannot be taken away by the purchaser 
 until they are paid for. (a) 
 
 If the goods are sold on a credit, the time of pay- 
 ment is to be when the credit has expired ; but if they 
 are sold on a credit, and notes are to be given at the 
 time of delivery, the notes must be delivered at that 
 time, and should they not be then delivered, and after- 
 ward refused, an action will lie immediately. 
 
 § 2. — Of the rights of the seller to indemnity. 
 
 958. One of the natural consequences of a sale is, 
 that the buyer shall pay the seller for all expenses he 
 may have sustained in keeping the thing, after the 
 completion of the sale ; as if I sell to you my horse to 
 be delivered to you on the first day of January, and 
 also a lot of merchandise, and you do not call for them 
 at the time and place agreed upon, in consequence of 
 which, I am put to expense in feeding your horse, or 
 storing the goods, you are bound to indemnify me. 
 
 § 3. — Of the right of stoppage in transitu. 
 
 959. When a person has sold goods to another, and 
 delivered them to a common carrier or middle man, for 
 the purpose of being carried to the purchaser, and 
 while they are thus in their transit the buyer fails, the 
 seller has a right to stop them, retake possession, and 
 prevent the delivery until he has been paid.(&) 
 
 (o) Bank of Columbia v. Hagner, 1 Pet. 455. 
 
 (h) See generally Bac. Ab. Merchant, (L) ; Ross on Vend. h. t. ; 2Selw. 
 
 Vol. I. 25 
 
386 OF THINGS. 
 
 No. 960. Book 2, part 2, tit. 5, chap. 1, sec. 7, 5 3, art. 1, 2, 3. No. 962. 
 
 This head will be divided into six articleis, relating, 
 1, to the person who has the right to stop goods 
 in transitu; 2, the property which may be stopped; 
 3, the time when to be stopped ; 4, the manner of stop- 
 ping ; 5, the failure of the buyer ; and, 6, the eflfect of 
 stopping. 
 
 ^rt. 1. — By whom goods in transitu may he stopped. 
 
 ' 960. The right of stopping goods in transitu is con- 
 fined to cases in which the consignor is substantially 
 the seller ; and does not extend to a mere surety for 
 the price, nor to any person who does not rest his 
 claim on a proprietor's right. (a) 
 
 The price for which the goods were sold must re- 
 main unpaid at the time of stopping in transitu, but 
 where only a part of the purchase money is due, the 
 right still subsists. (ft) 
 
 Art. 2. — What goods may be stopped in transitu. 
 
 961 . The property over which this right may be exer- 
 cised must be the identical chattels sold on a credit, (c) 
 When goods are sent in part by one conveyance and 
 part by another, and one parcel arrives safely in the 
 hands of the consignee, the right of stoppage in transitu 
 exists as to that parcel which is not yet delivered, par- 
 ticularly if the contract can be divided. ((Z) 
 
 Art. 3. — Of the time when goods may be stopped in transitu. 
 
 962. The right of stoppage in transitu must be exer- 
 cised during the transit, and while something remains 
 to be done to complete the delivery ; for the actual or 
 symbolical delivery of the goods to the buyer puts an 
 
 N. P. 1206; Whitak. on Stoppage in Transitu ; 3 Chit, on Comm. Law, 
 340 ; 2 Leigh's N. P. 1472. 
 
 (a) Siffken v. Wray, 6 East, 371 ; Amhl. 399 ; 3 East, 93 ; 4 Burr. 
 2047; 1 Bell's Com. 224. 
 
 (J) Hodgson V. Loy, 7 T. K. 440 ; Jordan v. James, 5 Ham. 88. See The 
 Constantia, 6 Rob. Adm. R. 321. 
 
 (c) Wood V. Roach, 2 Dall. 180 ; 1 Yeates, 177. 
 
 (d) Wentworth v. Outhwaite, 10 M. & W. 451 ; Buckley v. rumiss, 17 
 Wend. 504. 
 
OF PARTICULAR CONTRACTS. 387 
 
 No. 863. Book 2, part 2, tit. 5, chap. 1, sec. 7, § 3, art. 4, 5. No. 964. 
 
 end to the rights of the seller to stop the goods in 
 transitu. (a) But if, before he parts with the goods, the 
 seller annexes a condition that security shall be given 
 before taking possession; or that the price shall be 
 paid in ready money; or that a bill shall be delivered; 
 the property does not pass by the mere act of the 
 buyer's obtaining the possession. 
 
 When the seller has given the buyer documents suf- 
 ficient to trasfer the property, and the buyer, upon the 
 strength of such documents, has sold the goods to a 
 bona fide purchaser without notice, the seller is divested 
 of his rights ;(6) but a simple resale by the buyer does 
 not of itself, and without other circumstances, destroy 
 the vendor's right of stoppage in transitu. (c) 
 
 The moment the transitus is at an end, the right of 
 stoppage ceases ; but what shall be so considered de- 
 pends upon circumstances too minute to be detailed 
 here.((^) 
 
 Art. 4. — What is a sufficient stoppage of goods in transitu. 
 
 963. The manner of stopping the goods, is usually 
 by taking corporal possession of them ; but this is not 
 the only way it may be done ; the seller may put in 
 his claim, or demand his right to the goods, either ver- 
 bally, or in writing, (e) 
 
 Art. 5. — Of the insolvency or bankruptcy of the buyer. 
 
 964. To entitle the seller to stop the goods, the 
 buyer must have actually failed, or be in actual and 
 
 (a) Covell V. Hitchcock, 20 Wend. 167; S. 0. 23 Wend. 611; 3 T. E. 
 464 ; 8 T. R. 199. See Allen v. Mercier, 1 Ashm. 103. 
 
 (b) Walter v. Ross, 2 Wash. C. 0. 283 ; 4 Bro. P. 0. 57; S. C. 5 T. R. 
 367, 683 ; 6 T. R. 131. 
 
 (c) Craven v. Ryder, 6 Taunt. 433 ; 14 East, 308. 
 
 {d) See the following cases : Barrett v. Qoddard, 3 Mason, 107 ; Harman 
 V. Anderson, 2 Camp. 243 ; 20 Wend. 167 ; S. C. 23 Wend. 611 ; Stubs v. 
 Lund, 7 Mass. 453 ; Bolin v. Huffnagle, 1 Rawle, 9 ; Bell v. Moss, 5 
 Whart. 189 : Hurry v. Mangles, 1 Camp. 452; Ellis v. Hunt, 3 T. R. 464 ; 
 Naylor v. Dennie, 8 Pick. 198. 
 
 (e) Seethe cases mentioned in last note. 
 
388 OF THINGS. 
 
 No. 965. Book 2, part 2, tit. 5, chap. 1, see. 8, 9, 10. 
 
 immediate danger of insolvency, and the validity of the 
 seller's right depends entirely upon this.(«) 
 
 ^rt. 6. — The effect of stoppage in transitu. 
 
 965. Stopping goods -iw transitu, does not, of itself, 
 rescind the contract ; the seller may, therefore, upon 
 offering to deliver them, recover the price. And if 
 the goods so stopped, are applied to the payment of 
 the price, and a balance still remains unpaid, the seller 
 may recover it of the buyer. (6) 
 
 SECTION 8.-7— OF THE OBLIGATIONS OP THE BUYER. 
 
 966. The obligations of the buyer of chattels, re- 
 sulting from the contract of sale, are, 1, to pay the 
 price agreed upon in the contract; 2, to take away 
 the thing purchased, unless otherwise agreed upon; 
 and, 3, to indemnify the seller for any expenses he 
 may have incurred to preserve it for him. These we 
 have examined while treating of the rights of the 
 seller, (c) 
 
 SECTION 9. — OF THE RIGHTS OF THE BUYER. 
 
 967. The development of the rules which deter- 
 mine the obligations of the seller, necessarily explain 
 the rights of the buyer ; and reciprocally to show in 
 what the obligations of the buyer consist, is to point out 
 the rights of the seller; thus, when the law makes 
 the principal obligation of the buyer to pay the price, 
 it gives the seller the right to enforce the payment. 
 These rights of the buyer, are correlative to the obli- 
 gations of the seller, which have been considered under 
 this chapter in a former section. (tZ) 
 
 SECTION 10. OF THE DIFFERENT KINDS OF SALES. 
 
 968. Sales are of various kinds: 1, when consid- 
 
 (a) The Constantia, 6 Rob. Adm. R. 321 ; Wood v. Roach, 2 Ball. 180. 
 (i) Newhall v. Vargas, 3 Shep. 314. But see Bell's Com. 230, 5th ed. 
 (c) See the last section. 
 {d) Ante, n. 940. 
 
OF PARTICULAR CONTRACTS. 389 
 
 No. 969. Book 2, part 2, tit. 5, chap. 1, see. 10, j 1, art. 1,2. No. 971. 
 
 ered as to their eflfect, they are absolute or conditional; 
 2, when as to the will of the parties, they are volun- 
 tary or forced ; 3, when as to the mode of making 
 them, they are public or private. 
 
 § 1. — Of absolute and conditional sales. 
 
 Art. 1. — Of absolute sales. 
 
 969. An absolute sale is one made and completed, 
 without any condition whatever, by which the pro- 
 perty and all its incidents are conveyed by the seller 
 to the buyer, for exactly the same rights the former 
 had in it, and with the guarantees implied by law. 
 
 Art. 2. — Of conditional sales. 
 
 970. A conditional sale is one which depends for its 
 validity upon the fulfilment of some condition. These 
 conditions are resolutory or suspensive. (a) We wiU 
 here confine our inquiries to sales made upon a sus- 
 pensive condition. These are, 1, when the sale is 
 made on condition of measuring, counting, weighing, 
 etc. ; 2, when it is made on condition of tasting or 
 degustation ; 3, when it is made on trial. 
 
 1. Of a sale Tnade on condition of measuring, counting, weighing, etc. 
 
 971. Goods and merchandise which are susceptible 
 of being counted, weighed or measured, may still be 
 sold in gross, or in a body, without requiring any 
 ascertainment of their number, weight or quantity; as 
 a sale of a heap of grain, or a flock of sheep. In 
 these cases, the sale has the same effect as if there 
 were but one single article, as a bushel of grain, or 
 one single sheep. There being nothing further to be 
 done by the seller, the sale is perfect, and the goods 
 are at the risk of the buyer. But still, as regards 
 
 (a) Vide ante, B. 2, part 1, tit. 4, c. 4, s. 9, art. 1, § 8. 
 
390 OF THINGS. 
 
 No. 972. Book 2, part 2, tit. 5, chap. 1, sec. 10, 5 2, art. 1. No. 974. 
 
 third persons, the sale will not have all its effects until 
 the delivery of the goods. (a)^ 
 
 A sale thus naade of the whole of a commodity in 
 gross, differs essentially from one made of only a part 
 of it. In the latter case, the goods are at the risk of 
 the seller until after the counting, weighing or mea- 
 suring. (&) 
 
 2. Of sales made under condition of tasting. 
 
 972. When the article sold is one which may be 
 tasted, the sale may be on the condition that it shall 
 please the taste of the purchaser, and until he has ap- 
 proved of it, after tasting, the sale is incomplete, but 
 when approved, the buyer cannot afterward decline. 
 
 3. Of sales made on condition the thing sold shall le tried. 
 
 973. In general, a sale of articles on trial is pre- 
 sumed to be made under a suspensive condition. But 
 there are two species of trial. 
 
 Paul writes to Peter, a manufacturer, to send him a 
 piece of cloth, and adds, if it pleases me I will pay you 
 so much for it; the sale does not take place until Paul 
 has approved of it. If, however, he should for a long 
 time delay upon deciding, it will be presumed he ap- 
 proved of it.(c) 
 
 But if Paul buys a horse upon conditton that if, after 
 the trial, he do not approve of him, the sale shall be 
 null; this is a resolutory condition. 
 
 § 2. — Of voliintary and forced sales. 
 
 ^rt. 1. — Of voluntary sales. 
 
 974. A voluntary sale is one made without constraint, 
 freely, by the owner of the thing sold. A man having 
 an absolute right over his property may of course 
 dispose of it as he pleases, and sell it at any price he 
 
 (a) Shumway v. Butter, 7 Pick. 56 ; S. 0. 8 Pick. 443. 
 
 (b) Davis V. Hfll, 3 N. Hamp. 382 ; Andrew v. Deitrick, 14 "Wend. 31 ; 
 Young V. Austin, 6 Pick. 280. 
 
 (c) Humphries v. Oarvalho, 16 East, 45. 
 
OF PARTICULAR CONTRACTS. 391 
 
 No. 975. Book 2, part 8, tit. 5, cMp. 1, sec. 10, § S, art. I. No. 976. 
 
 thinks proper. To those sales thus voluntarily made, 
 the usual rules relating to this subject apply. 
 
 Art. 2. — Of forced sales. 
 
 675. A forced sde is one made without the consent 
 of the owner of the property by some officer appointed 
 by law, as by a marshal or sheriff, in obedience to the 
 mandate of a competent tribunal. This sale has the 
 effect to transfer all the rights the owner had in the 
 property, but it does not, like a voluntary sale of per- 
 sonal property, guarantee a title to the thing sold ;(g) 
 it merely transfers the rights of the person as whose 
 property it has been sold. This kind of sale is called 
 a judicial sale. 
 
 By forced sale, in another sense, is understood a 
 sale at auction to the highest bidder, without any re-, 
 serve whatever. This may in one sense be said to be 
 voluntary, when made by order of the owner of the 
 property. 
 
 § 3. — Of public and private sale. 
 .^rt. 1 Of public sale. 
 
 976. A public sale is one made by auction to the 
 highest bidder, whether the same be forced or volun- 
 tary. An auction is a place authorized by law, where 
 property is publicly sold to the highest bidder. 
 
 Sales of this kind are called judicial sales, when made 
 by the marshals of the different districts of the United 
 States, by sheriffs, by constables, and sometimes by 
 other officers who are authorized by law. These sales 
 are not in general subject to all the rules of other sales; 
 for example, there is no warranty of title of personal 
 property either expressed or implied. 
 
 But public sales are usually made by auctioneers 
 appointed by law, who sell goods not under judicial 
 
 (a) The Monte AUegre, 9 Wheat. 616 ; Yates v. Bond, 2 MoOord, 382 ; 
 Bashore v. Whistler, 3 Watts, 490. 
 
392 OF THINGS. 
 
 No. 976. Book2, parts, tit. 5, chap. 1, sec. 10, §3, art. 1. No. 976. 
 
 process, but by the authority of the owner, or of per- 
 sons who have a lawful right to make such sales. 
 
 The usual way of conducting an auction sale, is to 
 offer the property at a certain price, descending in the 
 amount until some person present accepts it, then to 
 ask others to give more, and to receive the bids of all 
 proper persons, higher and higher, until no one wiU 
 offer more. The auctioneer then accepts the last 
 offer, either verbally or by a sign, such as knocking 
 down a hammer, and the moment this is done, both 
 parties are bound by the contract ; the owner of the 
 goods to deliver them, the buyer to pay for them. 
 The manner of conducting a sale by auction is imma- 
 terial, whether it be by outcry as just described, or in 
 any other way. The essential part is the selection of 
 a buyer from a number of bidders. (a) 
 
 The sale is not complete until the bid has been ac- 
 cepted. The bid is only an offer to pay a stipulated 
 price for the article about to be sold ; and, like every 
 other offer, which has not been accepted, it may be 
 withdrawn until accepted ;(&) indeed it has been holden 
 that it may be withdrawn hy implication. (c) 
 
 Fairness is required in all cases, both from the auc- 
 tioneer and the buyer ; and the former will be con- 
 sidered as acting for himself, unless at the time of the 
 sale he discloses the name of his principal. («?) On the 
 part of the buyer, if he has been guilty of any fraud, 
 the sale will be vitiated; as for example, where a 
 number of bidders associate together with a design to 
 stifle competion.(e) But there is nothing unlawful in 
 two or more persons agreeing together to purchase a 
 property at sheriff's sale, fixing a certain price which 
 they are willing to give, and appointing one of their 
 number to be the bidder. (/) If the owner, on his part, 
 
 {a) Hebler v. Hodg. 1 W. & S. 552. 
 
 (*) Sugd. Vend. 29 ; Babb. on Auct. 30, 42. 
 
 (c) Donaldson v. Kerr, 6 Penn. St. K. 486. 
 
 (d) Mills V. Hunt, 20 Wend. 431. 
 
 (e) Smith v. Greenlee, 2 Dev. 126. 
 (/) SmuU V. Jones, 6 W. & S. 122. 
 
OF PARTICULAR CONTRACTS. 393 
 
 No. 977. Book 2, part 2, tit. 5, chap. 2. No. 979. 
 
 employs a person to bid for the purpose of running up 
 the property to an unreasonable price, this will also 
 vitiate the sale. (a) The owner, however, has a right 
 to limit the lowest amount at which the property shall 
 be sold.(&) 
 
 Art. 2. — Of private sales. 
 
 977. A private sale is one made voluntarily, and not 
 at auction. 
 
 CHAPTER n.— OF BAILMENTS. 
 
 978. Numerous contracts, having some general I'e- 
 semblance to a sale, are known by the generic name of 
 bailments. Various definitions have been given of the 
 word bailment. The clearest is that of Merlin, adopted 
 by Story. (c) A bailment is a delivery of a thing in 
 trust for some special purpose, and upon a contract, 
 express or implied, to conform to the object or purpose 
 of the trust. 
 
 Bailments are divisible into three classes : -1, those 
 in which the trust is for the benefit of both parties, as 
 hiring and letting to hire, and pawns or pledges ; 2, 
 those in which the trust is for the benefit of the bailor, 
 as deposits and mandates ; 3, those in which the trust 
 is for the benefit of the bailee, as gratuitous loans for 
 use, etc. 
 
 First Class. Of bailments for the benefit of both parties. 
 
 979. This class will be divided into two sections : in 
 the first will be examined the rules which relate to 
 hiring and letting to hire; and in the second those 
 which apply to pawns or pledges. 
 
 (a) Moncrief D. Goldsborough, 4 Har. & McHen. 482. 
 
 {b) Wolf V. Lingster, 1 Hall, 146 ; HazuU v. Dunham, 1 Hall, 655 : 
 Steele v. Ellmaker, 11 S. & R. 86. 
 
 (c) Merlin, Repert. verbo Bail; Story, Bailm. c. 1, § 2. See Jones on 
 BaUm. 1, 117 ; 2 Bl. Com. 395, 451 ; Kent, Com. Lect. 40, p. 437. 
 
394 OF THINGS. 
 
 , No. 980. Book 3, part 2, tit. 5, chap. 2, sec. 1. No. 982. 
 
 SECTION 1. OF CONTKACTS OF HIRUSTG. 
 
 980. Hire is an agreement by which one of two 
 contracting parties binds himself to let the other have 
 and use a thing, or his work or labor for a time agreed 
 upon, in consideration of a certain price which the 
 other binds himself to pay to him. He who agrees to 
 let the other enjoy the use of the thing is called the 
 letter, locator ; the other the hirer, conductor. 
 
 This contract arises from the principles of natural 
 law ; it is voluntary and founded in consent ; it in- 
 volves mutual and reciprocal obligations; and it is for 
 mutual benefit. 
 
 981. In many respects it bears a strong resemblance 
 to the contract of sale ; and indeed it may be said that 
 hiring is nothing else than the sale of the use and 
 benefit of the thing, or of the labor, which forms the 
 subject of the agreement; the principal difference 
 between them is, that in cases of sales, the owner parts 
 with the whole proprietary interest in the thing ; and 
 in cases of hire, the owner parts with it only for a 
 temporary use and purpose. In a sale, the thing itself 
 is the object of the contract ; in hiring, the use of the 
 thing is the object. (a) 
 
 982. There is a kind of contract which, strictly 
 speaking, is not hiring, and yet it partakes of its 
 nature. It frequently takes place among poor people 
 in the country: the following is an example. Two 
 poor neighbors, each owning a horse, are desirous to 
 plough their respective fields, to do which, two horses 
 are required; one agrees that he will let the other 
 have his horse for a particular time, on condition that 
 the latter will let the former have his horse for the 
 same_ length of time. (6) This contract is not properly 
 a hiring, for-want of a price, which, according to the 
 
 (a) Poth. Louage, n. 2, 3 & 4 ; Vinnius, lib. 3, t. 25, in pr. ; Jones, 
 Bailm. 86 ; Story, Bailm. ^ 371 ; Bowy. Oiv. Law, 211 ; Inst. 3, 25, prin. ; 
 Dig. 6, 1, 9 ; Brsk. Inst. 3, 3, 14; 1 Bell's Com. 451. 
 
 (J) Poth. Louage, n. 458. 
 
OF PARTICULAR CONTRACTS. 395 
 
 No. 983. Book 2, part 2, tit. 5, chap. 2, sec. 1, } 1, art. 1. No. 986. 
 
 civilians, is required in this contract; nor is it a loan 
 for use, because there is to be a recompense or con- 
 sideration ; it has been supposed to be a partnership, 
 but it dififers from that contract, because there is no 
 community of profits. This contract is generally ruled 
 by the same principles which govern the contract of 
 hiring, (c) 
 
 983. The contract of hiring and letting is usually 
 divided into two kinds : 1, locatio, or locatio conductio 
 rei, the bailment of a thing to be used by the hirer for 
 a compensation to be paid by him ; 2, locatio operis, or 
 the hire of the labor and services of the workman or 
 undertaker, and to be paid by the employer. 
 
 § 1. — Of the locatio conductio rei or hire of a thing. 
 
 984. To form this contract there must be, 1, a thing 
 to be let ; 2, a price ; 3, a letter, or party to let ; 4, a 
 hirer, or a party to hire. 
 
 ^rt. 1. — The thing to be let. 
 
 985. The contract of hiring cannot exist unless 
 there be a thing, the use of which is conveyed by the 
 letter to the hirer, for a time agreed upon between 
 them. It is then essential to the contract of hiring, 
 1, that there be a thing ; 2, that it be susceptible of 
 the contract of hiring ; 3, that there be an enjoyment, 
 or use of the thing which is the object of the contract; 
 4, that there be a time during which the enjoyment is 
 to last. 
 
 1. There must be a thing. 
 
 986. If the thing agreed upon should perish, it is 
 clear there would be no hiring ; as, if I hire a certain 
 horse from you, and the horse dies before the time 
 when the hire commenced, there is no contract. But 
 if the horse be indeterminate, and a horse you had 
 selected dies, you are bound to furnish me another ; 
 
 (a) Duverg. torn. 4, n. 247. 
 
396 OF TfflNGS. 
 
 No. 987. Books, parta, tit. Sj'chap. 2, sec. 1, ^ l,art. 1. No. 988. 
 
 and, if the latter be fit for my service, I am bound to 
 take him. 
 
 2. What things may be hired. 
 
 987. In general, all sorts of things may be hired. 
 But there are things which are susceptible of sale, 
 which cannot be hired ; such as are consumed by use, 
 as money, wheat, cider, etc. The reason is evident : 
 by this contract the hirer is bound only to use the thing 
 which he must return ; but a man who passes money, 
 who eats the wheat, and drinks the cider, cannot return 
 them. (a) Things of this kind, which are consumed by 
 use, are caXledi fungibles. 
 
 3. Of the enjoyment or use of things hired. 
 
 988. What enjoyment the hirer of a thing is to have 
 in the thing hired depends on the contracting parties ; 
 by consent it may be applied to any purpose which 
 does not entirely destroy it ; but when the parties are 
 silent on the subject, then the question arises, how is 
 the hirer to use it 1 It is not always easy to solve the 
 difficulty. As a general rule, it is presumed to have 
 been hired for the use for which it is destined by its 
 nature, and sometimes also for that which the profes- 
 sion of the hirer, or other circumstances point out, as 
 being the intention of the parties ; for example, if a 
 saddle horse be hired for one week, the hirer could not 
 use him to draw heavy draughts in wagons, or to turn 
 a mill, such evidently not being the intention of the 
 parties ; or if a riding carriage were hired for a week, 
 it could not be used to carry manure as a dung-cart. (&) 
 
 The use to which the thing is to be put must be 
 lawful, whatever may be the agreement. If an ex- 
 press contract were made by which the letter would 
 hire a horse to enable the hirer to commit a larceny, 
 or if a hire of clothes were made to a woman for 
 
 (a) Hurd «. West, 7 Cowen, 752. 
 
 [b) Wheelock v. Wheelwright, 5 Mass. 104 ; Sohenck v. Strong, 1 South. 
 87 ; Homer v. Thwing, 3 Pick. 492 ; Rotch v. Hawes, 12 Pick. 136. 
 
OF PARTICULAR CONTRACTS. 397 
 
 No, 989. Book2, part2, tit. 5, chap.2, sec. 1, § 1, art. 2. No. 990 
 
 the purpose of prostitution, the contract would be 
 void, (a) 
 
 If the unlawful use was not mentioned in the agree- 
 ment, neither of the parties could prove that the con- 
 tract was unlawful in order to avoid its performance ; 
 if the contract was in writing, it could not be changed 
 nor altered by parol proof; and if it was merely verbal, 
 the delinquent party could not be heard to allege his 
 own turpitude : Nemo auditur turpitudihem suam allegans. 
 
 4. Of the time for which the hiring is to take place, 
 
 989. In general, the time during which the hiring 
 is to continue, is made a part of the contract, but 
 sometimes this is left uncertain; in these cases the 
 intention of the parties may be collected from circum- 
 stances ; if, for example, a pair of horses and a carriage 
 are hired to you at a certain price per day, and the 
 contract mentions that you hire them to make a jour- 
 ney from Philadelphia to Richmond, it cannot be 
 doubted but you will be entitled to them for the whole 
 journey. 
 
 ^rt. 2. — Of the price or recompense. 
 
 990. There can be no contract of hiring without a 
 price or consideration, for if there be none, the contract 
 will be a loan. It is not indispensable that the agree- 
 ment as to the price should be expressed, it will be 
 sufficient when implied, and then the customary price 
 must be paid, or if there be no customary price, then 
 a reasonable price. Whether the consideration be a 
 price paid in money, or a recompense in something 
 else, it is still a hiring, and both cases are considered 
 as bailments for hire. (6) 
 
 (a) Shep. To. 163 ; Co. Litt. 206 b ; 10 East, 534 ; 1 Esp. 13 ; 1 Bos. & 
 Pull. 340, n. 
 
 {b) Mr. Justice Story is of opinion that the consideration may be paid in 
 money or other thing. Bailm. 9 377 ; while Mr. Chancellor Kent, who has 
 followed the civilians, describes hiring as a pecuniary bailment. 2 Kent, 
 Com. 385. 
 
398 OF THINGS. 
 
 No. 991, Book 2, part 2, tit. 5, chap. 2, sec. 1, § 1, art. 3, 4. No. 992. 
 
 Art. B.—Of the letter. 
 991. The letter must be competent to make a con- 
 tract, for one not sui juris, or incompetent to make an 
 agreement, cannot let a thing to hire. The obligations 
 of the letter and the rights of the hirer are correlative 
 terms, the obligations of the one are the rights of the 
 other. Again, the obhgations of the hirer are the 
 rights of the letter. Under this head will be considered 
 only the obligations of the letter. 
 
 These are not clearly defined by the common law, 
 and to ascertain them we must have recourse to the 
 civil law, from which so many principles have been 
 transplanted, and which, cultivated by the nursing 
 care of the common law, have taken such deep root. 
 In virtue of this contract, it is then said, the letter of a 
 thing to hire impliedly engages to secure to the hirer 
 the full use and enjoyment of the thing hired, and to 
 fulfil his own engagements and trusts, in respect to it, 
 according to the original intention of the parties. This 
 implies the obligation to deliver the thing to the hirer ; 
 to refrain from every obstruction to the use of it by the 
 hirer during the period of the bailment ; to do no act 
 which shall deprive the hirer of the thing ; to warrant 
 the title and possession to the hirer, to enable him to 
 use the thing or to perform the service ; and finally to 
 warrant the thing free from any fault inconsistent with 
 the use of it. Though these obligations, which are 
 deduced from the nature of the contract, appear per- 
 fectly reasonable, it is difficult to find any authority 
 supporting them in the common law. 
 Art. 4.-0/ the hirer. 
 992. In considering the obligations of the letter, we 
 have incidentally mentioned the rights of the hirer, the 
 principal of which are the following : 
 
 1. He acquires a special property in the thing hired, 
 during the continuance of the contract, and for the 
 purposes expressed or implied by it. (a) 
 
 (a) Jones' Bailm. 85; Bac. Ab. Bailment, C. 
 
OF PARTICULAR CONTRACTS. 399 
 
 No. 993. Book 2, part 2, tit. 5, chap. 2, sec. 1, § 1, art. 4. No. 993. 
 
 2. He acquires the exclusive right to the use of the 
 thing during the time of the bailment,(«) and if he 
 misuses it, this does not authorize the letter to take it 
 by force, (&) but such act puts an end to his special pro- 
 perty, and the thing may be recovered in trover, (c) 
 
 993. Among the obligations of the hirer the follow- 
 ing are the principal : 
 
 1. He is bound to take the same care to preserve the 
 thing, which a good and prudent father of a family 
 would take of his own.{d) 
 
 2. He is not only bound to take good care of the 
 thing, but he must use it for no other purpose than that 
 for which it is hired ; if a carriage be hired to go from 
 Philadelphia to New York, it cannot be used to go to 
 Baltimore. (e) And if the thing is used for a different 
 purpose from that which was intended by the parties, 
 or in a different manner, or for a longer period, the 
 hirer is not only responsible for all damages, but if a 
 loss occur, although by inevitable necessity, he will 
 be responsible for it. But these responsibilities on 
 the part of the hirer take place, only when he has the 
 possession as well as the use of the thing hired; for 
 when the owner, or his agents, retains the possession, 
 the hirer is not in general responsible for an injury 
 done to it ; for example, when the letter of a carriage 
 and a pair of horses sent his driver with them, and an 
 injury occurred, the hirer was held acquitted of any 
 responsibility, (/) except, indeed, the obligation of 
 taking ordinary care of the inside of the carriage 
 
 (a) Roberts v. Wyatt, 2 Taunt. 268. 
 
 (b) Hartford v. Jackson, 11 N. Hanap. 145 ; Lee v. Atkinson, Yelv. 172. 
 
 (c) 2 Saund. 47 f. ; Clarke v. Poozer, 2 McMuUan, 434 ; Morse v. Craw- 
 ford, 17 Verm. 499 ; Setzar v. Butler, 5 Iredell, 212. 
 
 (d) Story, Bailm. § 398; Poth. Louage, n. 190: Domat, B. 1, t. 4, § 2, 
 art. 4 ; Code, 4, 65, 28 ; Ayl. Pand. 463 ; Milon v. Salisbury, 13 John. 
 211 ; 17 Mass. 502 ; McNeils v. Brooks, 1 Yerg. 75. 
 
 (e) Jones' Bailm. 68; Angus v. Dickerson, 1 Meigs, R. 459 ; Ld. Raym. 
 915 ; 5 Mass. 104. 
 
 (/) Hughes V. Boyer, 9 Watts, 556, 562. 
 
400 OF THINGS. 
 
 No. 994. Book2, part 2, tit. 5, chap. 2, sec. 1,5 2, art. 1. No. 905. 
 
 where he sits, the glasses, and such things as are under 
 his immediate control. («) 
 
 3. The hirer is bound to restore the thing hired, when 
 the bailment is determined. The time, place, and the 
 mode of its restitution, are governed by the circum- 
 stances of each case, and depend upon the rules of 
 presumption of the intention of the parties, as in other 
 cases of bailment, unless there. has been an express 
 agreement on the subject. (&) 
 
 4. There is also an implied obligation, when there 
 has been no express contract, that the hirer will pay the 
 hire or recompense. 
 
 § 2. — Of the locatio operis or hiring of labor. 
 
 994. Hiring of labor is a contract by which one of 
 the contracting parties, called the employer, gives to the 
 other, called the workman or undertaker, a certain work 
 to be performed, which the latter promises to perform, 
 for a price or recompense which the former binds 
 himself to pay. This head will be divided into two 
 articles : 1, hire of labor ; 2, hire of custody. 
 
 ^rt. 1. — Of the hire of labor, and the nature and requisites of this 
 
 contract. 
 
 1. Of its nature. 
 
 995. The contract of hiring of labor differs mainly 
 from the contract of the hire of things, in this, that 
 the hire of a thing is given for a certain price or re- 
 compense, paid to the letter, which is the object of the 
 letter, and the work given to be done forms the sub- 
 stance of the former. In the contract for the hire of a 
 thing the hirer agrees to pay the price or hire, and in 
 a hiring of labor or services, the employer binds him- 
 self to pay the price or hire. 
 
 There is a considerable resemblance between this 
 contract of hiring of labor and a sale ; if I order a 
 carriage to be made and the materials are to be fur- 
 
 (a) Poth. Louage, n. 196 ; Jones' Bailm. 
 {b) Story, Bailm. § 415. 
 
OF PARTICULAR CONTRACTS. 401 
 
 No. 996. Book 2, part 2, tit. 5, chap, 2, sec. 1, J 2, art. 1. No. 999. 
 
 nished by the coachmaker, there is a contract of sale ; 
 so if I order a tailor to make me a coat, and he is to 
 furnish the- materials, it is a sale ; but if I furnish the 
 cloth to a tailor to make me a coat, and he merely 
 puts his work upon it, it is a contract of hiring of 
 labor. This would be the case also, wer§ the tailor to 
 furnish the buttons, twist, etc., commonly called the 
 trimmings, (a) 
 
 2. Of the requisites to form the contract of hiring of labor. 
 
 996. As in the contract for the hire of a thing, so 
 in this contract there are three requisites, namely : 
 1, a work to be performed ; 2, a price or recompense ; 
 3, the consent of the parties. 
 
 1° A work to he done. 
 
 997. The work to be done must be such as can he 
 performed, for if the contract were to do an impossible 
 thing, it would be void. The thing to be done must 
 be lawful ; for example, if you employed a painter to 
 paint a libel, or a printer to print an obscene work, the 
 contract would be void. 
 
 2° Ofthep-ice. 
 
 998. It is evident that there must be a price or 
 recompense, or the contract would no longer be a 
 hiring for labor, but a mandate. But still it is not 
 requisite that the parties should have expressly agreed 
 upon a price, one may be implied. If I send cloth to 
 a tailor with a request that he make me a coat, the 
 law presumes that I will pay him what he justly de- 
 serves, a quantum meruit. 
 
 3° Of the consent of the parties. 
 
 999. As in all other contracts, there must be a con- 
 sent between the parties. 
 
 (a) Poth. Louage, n. 394 ; Story, Bailm. ^ 423. 
 YOL. I. 26 
 
402 OF THINGS. 
 
 No, 1000. Book 2, part 2, tit. 5, chap. 2, sec. 1, ^ 2, art. 8. ^o. 1002. 
 
 ^^. 2. 0/ the obligations of the parties. 
 
 1. Of the ohligations of the employer. 
 
 1000. The obligations of the employer, which arise 
 from the nature of the contract, are the following : 
 
 1. To pay*he price agreed upon, or if no price has 
 been fixed, to pay the workman what his work is 
 worth, or what he deserves. 
 
 2. If there have been any deviations made in the 
 plan, with the express or implied consent of the em- 
 ployer, to pay for the additions what the workman 
 deserves. The rule in cases of deviation is to trace 
 the work according to the original plan, and the addi- 
 tions are to be paid according to the usual rate of such 
 
 work, (a) 
 
 3. The employer is bound to do all he can to enable 
 the workman to fulfil his contract. If you employ a 
 plumber to introduce the Croton water into your house 
 in the city of New York, you are bound to pay what- 
 ever expense may be charged to obtain a permit from 
 the proper authority. 
 
 4. The employer is bound to receive the thing when 
 finished. 
 
 5. In making the contract, the employer must use 
 no means to deceive the workman ; such deceit may 
 amount to a fraud and vitiate the contract. 
 
 2. Of the obligations of the workman. 
 
 1001. The workman or undertaker is bound, 1, to 
 perform the work he has undertaken to do ; 2, to do 
 it in proper time ; 3, to do it well ; 4, to employ the 
 things furnished him according to his contract. 
 
 1° Of the performance of the work. 
 
 1002. The undertaker is bound by his contract to 
 do the work he has promised to perform, but, in gene- 
 ral, he may employ workmen to assist him, or to do 
 
 (a) Craven v. Tickell, 1 Ves. jr. 60 ; 13 Ves. 73, 81. 
 
OF PARTICULAR CONTRACTS. 403 
 
 No. 1003. Book 2, part 2, tit. 5, chap. 2, sec. 1, § 2, art. 8. No. 1005. 
 
 the whole under his superintendence. Some under- 
 takings must, however, be performed by the party 
 himself; as, if I want a work of art, as a statue or a 
 painting, and I employ a particular statuary or painter 
 to make them, the presumption is that I want no 
 other's work, for the value of the thing depends, in a 
 great degree, on the name and skill of the artist, (a) 
 
 2° When the work is to he done, 
 
 1003. It is evident that if the work is not done in 
 time, the undertaker will be liable in damages. 
 
 3° Of the ohligation to perform the work well. 
 
 1004. As a general rule, he who undertakes for a 
 reward to perform any work, is bound to use a degree 
 of diligence, attention and skill, adequate to the per- 
 formance of his undertaking, that is, to do it according 
 to the rules of the art : spondet peritiam artis.(b) It is 
 his fault to undertake to do a thing beyond his strerfgth, 
 or for which he has not sufficient skill, or to employ 
 bad workmen ; in this case the .maxim applies, imperi- 
 tia culpx annumeratur ;{c) ignorance is like negligence, 
 for which one is responsible. If, for example, a ferrier 
 undertake to cure a horse, he is required to use rea- 
 sonable skill ; if a carpenter undertake to build a ship, 
 he engages to use the same kind of ability. And the 
 degree of skill rises in proportion to the value and 
 delicacy of the operation. But he is in no case re- 
 quired to have more than ordinary skill, for he does 
 not engage for more. 
 
 1005. Under this rule all professional men, who can 
 recover for their services in an action, are included ; 
 their contract is locatio operarum and not mandate. An 
 
 (a) Poth. Louage, n. 421. See Rust v. Larue, 4 Litt. 416. 
 
 {b) Poth. Louage, n. 425 ; Jones, Bailm. 22, 53, 62, 97, 120 ; Domat, B. 
 1, t. 4, s. 8, n. 1 ; Story. Bailm. § 431 ; Coggs v. Bernard, Ld. Eaym. 909 ; 
 1 BeU's Com. 459, 5th ed. 
 
 (c) Dig. 50, 17, 132. 
 
404 OF THINGS. 
 
 No. 1006. Book 2, part 2, tit. 5, chap. 2, sec. 1, § 2, art. 2. No. 1008. 
 
 action will, therefore, lie against an attorney, (a) or a 
 physician,(&) for neglect; for, like artists of all kinds, 
 wherever they engage their services for a compensa- 
 tion, which they could recover by action, they are re- 
 sponsible for the skill and art necessary to accomplish 
 safely what they undertake, in so far as ordinary skill 
 and art can accomplish it. The public who employ 
 them may exercise a judgment of selection, but having 
 selected the person, they are entitled to presume that 
 he has the ordinary skill in his art, of which he holds 
 himself out to the world to be possessed, (c) But if 
 the employer were to engage a common blacksmith to 
 repair his watch, and he should spoil it, or a farrier to 
 cure his eyes, and he should lose his sight by taking 
 his remedies, he would have no legal ground of com- 
 plaint. ((^) 
 
 4° Of the workman's olUgation to employ properly the materials furnished 
 
 him. 
 
 1006. He is bound to use the materials furnished to 
 him according to his contract, and for the advantage of 
 his employer ; as to ernploy the cloth I sent a tailor to 
 make me a coat, so that I can have a coat which shall 
 fit me, for if it be so made that I cannot wear it, this 
 is not a proper employment of the materials. But, if 
 the undertaker use ordinary skill and care, he. will not 
 be responsible, although the materials may be injured ; 
 as, if a gem be delivered to a jeweler, and it is broken 
 without any unskilfulness, negligence or rashness of the 
 artisan, he will not be liable. (e) 
 
 The workman is to use ordinary diligence in the 
 care of the materials entrusted with him, or to exer- 
 
 (a) Dearborn v. Dearborn, 15 Mass. 316 ; Crookert-. Hutchinson, 2 Chipm. 
 117 ; S. C. 1 Verm. 73 ; Varnum v. Martin, 15 Pick. 440 ; Ruggles v. Ives, 
 6 Mass. 494 ; Wilson v. Ruas, 7 Shepl. 421. 
 
 (5) Gallaher v. Thompson, Wright, 466 ; Landon ti. Humphrey, 9 Conn. 
 209. 
 
 (c) Bell's Com. 459, 5th ed. ; Moore v. Morgue, Cowp. 497. 
 
 (o!) Jones, Bailm. 99, 100. . 
 
 (e) Poth. Louage, n. 428. 
 
OF PARTICULAR CONTRACTS. 405 
 
 No. 1007. Book a, part 2, tit. 5, chap. 2, sec 1, § 2, art. 3. No. 1007. 
 
 cise that .caution which a prudent man takes of his 
 own aflFairs,(a) and he is also bound to preserve them 
 from any unexpected danger to which they may be 
 exposed. (&) 
 
 ^rt. 3. — Who is to hear the loss of the work and materials destroyed 
 before they are delivered. 
 
 1007. When there is no special contract between the 
 parties, and a thing perishes while in the possession of 
 the workman or undertaker, without his default, either 
 by inevitable casualty, by internal defect, by superior 
 force, by robbery, or by any peril not guarded against 
 by ordinary diligence, he is not responsible. This is 
 the case only when the material belongs to the em- 
 ployer, and the workman only undertakes to put his 
 work upon it. But a distinction must be observed in 
 the case where the employer has engaged a workman 
 to make him an article olit of his own materials, for, 
 in that case, the employer has no" 'property in it until 
 the work is completed, and the article has been de- 
 livered to him ; if, in the meantime, the thing perishes, 
 it is the loss of the workman, who is wholly its owner, 
 according to the maxim, res perit domino. {c) In the 
 former case the employer is the owner ; in the latter, 
 the workman ; in the first case it is a bailment, in the 
 second, a sale of a thing in futuro.{d) 
 
 Another distinction must be made in the case where 
 the thing given by the employer was to become the 
 property of the workman, and an article was to be 
 made out of similar materials, and before its comple- 
 tion it perished. In this case the title to the thing 
 having passed to the workman, the loss must be 
 his.(e) 
 
 (a) Clarke v. Earnshaw, 1 Gow. R. 30. 
 
 (b) Leek V. Maestaer, 1 Camp. 138. 
 
 (c) Bouv. L. D. h. t. 
 
 (d) Domat, B. 1, t. 4, ^ 7, n. 3 ; Dom. B. 1, t. 4, § 8, n. 10. 
 
 (e) Ewing v. French, 1 Blackf. 353 ; Hurd ti. West, 7 Cowen, 752, 756, 
 note ; Smith v. Clark, 21 Wend. 85 ; Butfum v. Jlerry, 3 Mason, 478 ; Dig. 
 19, 2, 31. 
 
406 OF THINGS. 
 
 No. 1008. Book 2, part 2, tit. 5, chap. 2, aeo. 1, § 3, art. 1. No. 1011. 
 
 § 3. — Of locatio custodies, or hire of custody. 
 
 1008. The locatio custodm, or deposit for hire, is a 
 contract by which one of the parties, called the custo- 
 dier, or depositary, {a) undertakes for hire to take care 
 of goods belonging to the other party, called the 
 depositor, for a particular time and in a way agreed 
 upon. 
 
 These depositaries for hire are of two classes; 1, 
 those who are responsible only for want of ordinary 
 diligence; 2, those who, like carriers, are responsible 
 for all losses except those caused by inevitable accident, 
 or the act of God, and those which are the effect of the 
 act of a public enemy. 
 
 Art. 1. — Depositaries responsible for want of ordinary care. 
 
 1009. These are agistors of cattle; warehousemen; 
 forwarding merchants ; factors, and wharfingers. The 
 general rules applicable to bailments of locatio operis 
 faciendi, which have been already considered, are also 
 applicable to these contracts. 
 
 1010. — 1. An agistor is one who receives horses or 
 other animals, on his own ground, for hire, to take care 
 of them. The agistor is not bound, like the innkeeper, 
 to take all horses offered to him, nor is he liable for 
 any injury done to the animals under his care, unless he 
 has been guilty of negligence. 
 
 1011. — 2. A warehouseman is a person who receives 
 goods and merchandise to be stored in his warehouse 
 for hire. He is bound to use ordinary care, and his 
 neglect to do so will render him liable to the owner.(&) 
 His liability commences as soon as the goods arrive 
 and he applies the crane to take them into his ware- 
 house, (c) It ends by delivering the goods to the true 
 owner, and a delivery to a person not entitled will 
 
 (a) 1 Bell's Com. 458. 
 
 lb) Story, Bailm. ^ 444 : Jones, Baam. 49, 96, 97. 
 (c) Thomas v. Day, 4 Esp. 262 ; De Mott v. Laraway, 14 Wend. 225 ; 
 Randleson v. Murray, 8 Ad. & Ell. 109. 
 
OF PARTICULAR CONTRACTS. 407 
 
 No. 1012. Book2, parts, tit. 5, chap.2, BDC. 1, 53, art 1. No. 1014. 
 
 render him liable for all losses which may result from 
 such delivery. (a) 
 
 1012. — 3. A forwarding merchant is one who re- 
 ceives and forwards goods, taking upon himself the 
 expenses of transportation, for which he receives a com- 
 pensatio)! from the owners, but who has no concern in 
 the vessels or wagons by which they are transported, 
 and no interest in the freight. He is not deemed 
 a common carrier, but a mere warehouseman, or 
 agent. (&) He is only required to use ordinary diligence 
 in sending the property by responsible persons. (c) 
 
 1013. — 4. A factor is an agent to sell goods and 
 merchandise consigned or delivered to him by, or for 
 his principal, for a compensation, commonly called fac- 
 torage or commission. He is also called a commission 
 merchant or consignee.{d) Factors and other bailiffs to 
 manage for hire, are generally liable only for a rea- 
 sonable exercise of skill and ordinary diligence ; and 
 are not liable for any accidents, unless they are occa- 
 sioned by their negligence. (e) 
 
 1014. — 5. A wharfinger is one who keeps a wharf, 
 and who receives and ships merchandise to and from 
 it, for hire. Like a warehouseman, he is responsible 
 for ordinary neglect, and therefore required to take 
 ordinary care of goods entrusted to him as such. His 
 responsibility begins when he acquires, and ends when 
 he ceases to have the custody of the goods in that 
 capacity. When this takes place, depends upon usage. 
 When goods are delivered on his wharf, and he assumes 
 the custody of them, either by his express or implied 
 agreement, his liability commences ; but a mere de- 
 livery at his wharf, without his assent, does not render 
 
 (a) Lubbock v. Inglis, 1 Stark. 104 ; Leigh v. Smith, 6 Car. & P. 638. 
 
 {b) Eoberts v. Turner, 12 John. 232 ; Piatt v. Hibbard, 7 Cowen, 497. 
 
 \c) Brown v. Dinison, 2 Cowen, 593. 
 
 \d) Paley on Ag. 13; 1 Liverm. Ag. 68; Story, Ag. ^ 38 ; Com. Dig. 
 Merchant, B ; 1 Bell's Com, 385. 
 
 (e) Coggs V. Bernard, 2 Ld. Raym. 909, 918 ; Vere v. Smith, 1 Yent. 
 121. 
 
408 OF THINGS. 
 
 No, 1015. Book 2, part 2, tit. 5, chap. 2, see. 1, 5 3, art. 2. No. 1016. 
 
 him liable. (a) The moment he loses the custody, by 
 justly delivering them on board of a vessel, his respon- 
 sibility ceases. (&) 
 
 Art. 2. — When the depositary is hound to exercise more than ordinary 
 
 care. 
 
 1015. Innkeepers are the only bailees who will be 
 classified under this head.' An innkeeper is one who 
 keeps an open house for the entertainment and lodging 
 of all such travellers and passengers, who desire to be 
 entertained there, with their horses and attendants, for 
 a reasonable compensation. (c) To constitute him an 
 innkeeper, a man must have a house kept for travellers 
 generally, and not for a short season of the year, or for 
 select persons, or for mere lodgers, A private board- 
 ing house, lodging house, or a coffee house, is not an 
 inn.(<f) It is not indispensable to an inn that there 
 should be stables, or that stage . coaches or wagons 
 should stop there. (e) And one who entertains strangers 
 occasionally, although he may receive compensation 
 for it, is not an innkeeper. (/) 
 
 1. Obligations of an innkeeper. 
 
 1016. He is bound to take in and receive all travel- 
 lers and wayfaring persons, and to entertain them for 
 a reasonable compensation^ unless he have no room, 
 or the applicants are drunk, or disorderly, or afflicted 
 with contagious diseases ; to supply their reasonable 
 wants, for a just compensation. (g) He is liable for 
 damages if he neglect to take proper care of the bag- 
 gage or luggage of his guest which is brought within 
 
 (a) Buckman v. Levi, 3 Campb. 414 ; Gibson v. Inglis, 4 Camp. 72 ; 
 Packard v. Getman, 6 Cowen, 757. 
 
 (A) Corbin v. Downe, 5 Esp. 41 ; Dig. 4, 9, 3 ; Abbott on Shipp. 226 ; 
 Molloy, B. 2, c. 2, s. 2. 
 
 (c) Bac. Ab. Inns, etc., ; Thompson j). Lacy, 3 B. & Aid. 283. 
 
 id) Cayle's case, 8 Rep. 32 ; Bac. Ab. Inns, etc., B. 
 
 (e) 3 B. & Aid. 283. 
 
 (/) The State v. Matthews, 2 Dev. & Bat. 424. 
 
 {g) Howell V. Jackson, 6 Car. & Pay. 725 ; Pell v. Knight, 8 Mees. & 
 Wels. 269. 
 
OF PARTICULAR CONTRACTS. 409 
 
 No. 1017. Book 2, part 2, tit. 5, chap. 2, sec. 1, j 3, art. 2. No. 1017. 
 
 the inn. (a) A delivery of the goods into the custody 
 of the innkeeper is not however requisite, in order to 
 make him responsible, for although he may not know 
 anything of such goods, he is bound to pay for them if 
 they are stolen or carried away, even by an unknown 
 person ; and if he receive the guest, the custody of the 
 goods may be considered as an accessory to the prin- 
 cipal contract; the money paid for the apartments 
 extending to the care of the box or portmanteau. 
 But in order to give this protective security to the 
 goods, the owner of them must be a guest at the inn, 
 that is, he must be a person who stays there under an 
 express or implied agreement to be supplied with his 
 personal wants, for a just compensation, for unless he 
 is invested with that character, his goods will not be 
 protected to the extent of those of a guest ; one who 
 stays at an inn as his home, under a special contract, 
 is not a guest but a boarder. (6) 
 
 2. Of the degree of liability of innkeepers. 
 
 1017. Innkeepers are an exception to the general 
 rule applicable to depositaries for custody. Their 
 responsibility is nearly similar to that of common car- 
 riers, and for the same reason, the protection of the 
 public. They are bound to exert the greatest diligence 
 in regard to the goods and chattels of their guests, and 
 their responsibilities extend to deeds, bonds, and other 
 choses in action. If the goods of the guest are stolen 
 while they are in the inn, the keeper is in general 
 responsible, unless the guest has done some act by 
 which he has assumed the sole custody of them, or has 
 deprived the innkeeper of their custody, (c) 
 
 He is responsible for the acts of his servants and 
 domestics, as well as for the acts of other guests, if the 
 
 (a) 8 Co. 32 ; Jones, Bailm. 91. 
 
 (S) Bac. Ab. Inns, 5 ; Story, Balm. ^ 477. See Peet v. McGraw, 
 25 Wend. 653 ; Mason v. Thompson, 9 Pick. 280. 
 
 (c) Cayle's case, 8 Co. 32 ; Sneider v. Geiss, 1 Yeates, 34 ; Pamworth v. 
 Packwood, 1 Starkie, 249 ; Burgess v. Clements, 4 M. & S. 306. 
 
410 OF THINGS. 
 
 No. 1018. Book 2, part 2, tit. 5, chap. 2, sec. 1, § 4. No. 1020. 
 
 goods be stolen or lost; but he is not liable to an action 
 for damages done without his consent or cooperation, 
 by a servant to the person of a guest. (a) 
 
 His general liability does not extend to those cases 
 where the guest is in fault, nor where the loss happens 
 through the act of God or of a public enemy. (&) 
 
 3. Of the rights of innkeepers. 
 
 1018. The innkeeper is entitled to a just compen- 
 sation for his care and trouble, in attending to his 
 guest and his property, and finding him what he may 
 require. To enable him to recover this, the law has 
 given him various remedies ; he has a lien upon all 
 the property of his guest, in the inn and its stables, 
 for all his claim as innkeeper. The lien does not, 
 however, extend to the person of his guest,(c) though 
 formerly a diflferent rule obtained. (t^) 
 
 4. General Observation. 
 
 1019. It must be remembered that the rules above 
 mentioned are applicable to innkeepers by the com- 
 mon law. In the United States there are regulations, 
 in each state of the Union, in relation to the licensing 
 inns, hotels, and taverns, and, in some of them, the 
 laws limit or change the rights and liabilities of the 
 keepers of them. 
 
 § 4. — Of locatio mercium vehendarum, or the carriage of goods.(e) 
 
 1020. A common carrier of goods, is one who under- 
 takes, for hire or reward, to transport the goods of 
 such as choose to employ him, from place to place. 
 
 (a) 8 Co. 32. 
 
 (i) Broom's Max. 108. 
 
 (c) Sunbolp V. Alford, 1 Horn. & Hurl. 13. 
 
 (d) Newton v. Trigg, 1 Show. 269 ; Bac. Ab. Innkeepers, D. 
 
 (e) For the authorities on the law of carriers in the civil law, the reader 
 is referred to Dig. 4, 9, 1 to 7 ; Poth. Pand. lib. 4, t. 9 ; Domat, liv. 1, t. 
 16, s. 1 et 2 ; Pardes, n. 539 to 555 ; Moreau & Carleton, Partidas 5, t. 8, 
 1. 26 ; Irsk. Inst, book 1, 1. 1, ^ 28 ; 1 Bell, Com. 465. 
 
OF PARTICULAR CONTRACTS. 411 
 
 No. 1021. Book 2, part 2, tit. 5, chap. 2, bco. 1, 4 4, art. 1. No. 1022. 
 
 Steamboat companies; railway companies; masters 
 of vessels; bargemen; ferrymen; (a) proprietors of 
 stage coaches and stage wagons, which ply from place 
 to place ;(&) truckmen ; cartmen ; porters, who carry 
 parcels in the same town from place to place ; indeed 
 all persons who make it a business to carry goods for 
 any who may wish to employ them, for a reward or 
 hire, are considered as common carriers. But a for- 
 warding merchant, who has no interest in the convey- 
 ances which carry away the goods entrusted to him, is 
 not a common carrier ;(c) nor is the owner of a cart, 
 or carriage, let for a specific length of time, to go to 
 such places as the employer may direct, as a cab driver, 
 or a hackney coachman, such a carrier. (J) And a 
 distinction must be observed between one who carries 
 goods only occasionally, although he may receive hire, 
 and a common carrier ; a man who is employed for 
 hire pro hac vice only, and does not make the carriage 
 of goods his constant employment, is not liable as a 
 common carrier. (e) 
 
 1021. Common carriers of goods are, 1, required 
 to fulfil certain obligations, arising from the nature of 
 their employment; 2, liable for certain losses which 
 occur in the course of their agency ; 3, entitled to cer- 
 tain rights, either under an express or implied agree- 
 ment : each of these will be separately examined. 
 
 Art. 1. — Of the obligations of common carriers. 
 
 1022. A common carrier is obliged to receive and 
 carry all goods offered to him for transportation, when 
 he has room for such goods, upon receiving a just com- 
 pensatioa or hire ; and, unless he has a valid excuse, 
 
 (a) Smith v. Seward, 3 Penn. St. R. 342. 
 
 (J) Beekman v. Shouse, 5 Eawl. 179 ; Gordon v. Hutchinson, 1 W. & 
 S 286 
 ' (c) Platts V. Hibbard, 7 Gow. 497 ; Roberts v. Turner, 12 John. 232. 
 
 {(I) Brind v. Dale, 8 Car. & Payne, 207. 
 
 (e) -^ — V. Jackson, 1 Hayw. 14 ; Satterlee v. Groat, 1 Wend. 272 ; 
 Tunnel v- Pettijohn, 2 Barring. 41. 
 
412 OF THINGS. 
 
 No. 1023. Books, parts, tit. 5, chap. 2, sec. 1, 5 4) aft- 2. No. 1024. 
 
 he is liable to an action for not doing so.(«) The proper 
 time to deliver them to him, is when he is about to set 
 out on his accUstoined journey. (6) 
 
 On receiving the goods, he is bound to take the 
 utmost care of them ; to obey the directions of the 
 owner in respect to them;(c) to carry them safely to the 
 proper place of destination; to make a right delivery 
 of them there in proper time, according to the usage 
 of trade, or the course of business. He is required to 
 provide proper conveyances; if with wagons, good 
 horses and drivers ; if by water, good vessels and a 
 sufficient crew,(^) and to proceed, without deviation, 
 to his place of destination, for a voluntary deviation 
 will render him responsible for inevitable accidents. (e) 
 
 jlrt. 2 Of the liability of a common carrier. 
 
 1. — For what losses. 
 
 1023. By the common law, a common carrier is in 
 general liable for all losses wliich may occur to pro- 
 perty entrusted to his charge in the course of business, 
 unless the loss has happened, 1, by the act of God, or 
 inevitable accident ; 2, by the act of the enemies of 
 the tlnited States ; 3, by the act of the owner of the 
 property; 4, because the carrier has given notice 
 limiting his liability ; or, 5, because he is protected by 
 some rule of law. 
 
 First Exception. — Of the act of God. 
 
 1024. By the phrase, an act of God, is meant those 
 natural accidents arising from physical causes, which 
 cannot be prevented ; such as lightning, earthquakes, 
 
 (a) Bac. Ab. Carriers, B ; 1 Saund. 312, C ; Riley ti. Home, 5 Bing. 217, 
 224 ; Jackson v. Rogers, 2 Show. 327 ; Gordon v. Hutchinson, 1 W. & S. 
 237. See 7 W. & S. 468 ; McGill v. Rowand, 3 Penn. St. R. 451. 
 
 (5) Lane v. Cotton, 1 Ld. Raym. 652 ; Hastings v. Pepper, 11 Pick. 41. 
 
 (c) Streeter v. Hurlook, 1 Bing. 34. 
 
 (/) Bell V. Read, 4 Binn. 127 ; Hart v. Allen, 2 Watts, 115. 
 
 (e) Davis v. Garrett, 6 Bing. 716 ; Lawrence v. McGregor, Wright, 193 ; 
 Hand v. Banes, 4 Whart. 204 ; Souter v. Baymore, 7 Penn. St. R. 415. 
 
OF PARTICULAR CONTRACTS. 413 
 
 No. 1025. Booka, part 2, tit. S, chap. 2, sec. 1, ^4, art. 2. No. 1025. 
 
 tempests, etc. It is something in opposition to the 
 act of man. (a) For losses by the act of God, a carrier 
 is not responsible, according to the maxim, actus Dei 
 nemini facit injuriam. The loss in such<cases must fall 
 upon the owner ; res per it domino. 
 
 When the carriage is by water, the bill of lading 
 generally contains a proviso that the carrier shall not 
 be liable for "perils of the sea." The exact import of 
 this expression is not clearly settled. In a strict 
 sense, it signifies the natural accidents peculiar to the ^ 
 sea ; but in more than one instance, it has been held 
 to extend to events not attributable to natural causes. 
 For instance, the meaning of these words has been 
 held to include a capture by pirates on the high seas ; 
 in another, a loss occasioned by collision of two ships, 
 where no blame was imputable to either, or not to 
 the injured ship.(6) A loss by jettison, when no blame 
 is imputable to the master, is also considered a peril 
 of the sea.(c) Numerous other accidents have also 
 been classed as perils of this kind.((Z) 
 
 The words, perils of the sea, on the western waters 
 of the United States, signify perils of the river. (e) 
 
 Second Exception. — Of the enemies of the United States. 
 
 1025., By enemies, is understood public enemies, 
 with whom the United States are at open war, and 
 not merely robbers, thieves, or other private depreda- 
 tors. Losses by the latter must be borne by the com- 
 mon carrier, while he is excused in case the loss has 
 been sustained from the former. It would be unrea- 
 sonable to hold a carrier responsible for the acts of a 
 
 (a) Forward v. Pittard, 1 T. R. 33 ; Jones, Bailm. 103 ; Phill. Ins. c. 
 13, $ 7 ; Story, BaUm. ^ 511 ; Neal v. Saunderson, 2 Sm. & M. 572. 
 
 (b) Marsh v. BIythe, 1 McOord, 360. 
 
 (c) Jones, Bailm. 108 ; 1 Caines, 43 ; 3 Conn. R. 9. 
 
 (d) Marsh, Ins. B. 1, c. 7, s. 4; Abbott on Shipp. part 3, c. 3, s. 9; 
 Garngues v. Coxe, 1 Binn. 592 ; Aymier v. Astor, 6 Cowen, 266 ; Bac. Ab. 
 Merchant, etc., (I), Bouv. ed. 
 
 (e) Jones v. Pitcher, 3 Stew. & Port. 176; Whitesides v. Russell, 8 
 Watts & Serg. 44. See Atwood v. The Reliance Company, 9 Watts, 87. 
 
414 OF THINGS. 
 
 No. 1026. Books, parts, tit. 5, chap. 2, sec. 1, §4, art. 2. No. 1027. 
 
 public enemy, which the government, which is bound 
 to protect the common carrier, could not resist ; but 
 the same reason does not apply to the case of common 
 robbers and thieves, because the carrier could easily 
 defraud his employers by colluding with them, and, to 
 prevent this, common carriers are made responsible 
 for the acts of such malefactors. 
 
 Third Exception. — Loss occasioned by the owner. 
 
 1026. If, in consequence of the negligence of the 
 owner in not putting his goods in a fit condition for the 
 journey, any loss arise, it will fall on him, unless the 
 carrier has by imphcation or expressly assumed the 
 care of them in such condition. (a) 
 
 Fraud in this, like every other case, will render the 
 contract a mere nullity. If, therefore, the owner of 
 the goods use fraud or artifice to deceive him, and in 
 consequence of it his risk is increased or his vigilance 
 is lessened, the loss which may follow must be borne 
 by the owner. (&) Whether a bare concealment would 
 be such a fraud seems doubtful, but if the carrier make 
 an inquiry, and a false answer is given, he will not be 
 liable for the loss.(c) 
 
 Fourth Exception. — Of notices. 
 
 1027. Attempts have been made by carriers, to 
 limit their responsibility, by giving notices that they 
 will not be responsible for the carriage of certain 
 goods without loss, or that those goods are carried at 
 the risk of the owner. Though the validity of these 
 notices has been established to a certain extent in 
 England, under the controlling influence of certain 
 statutes, (c?) in the United States they have generally 
 
 /been declared void as being contrary to the policy of 
 i the law, for the undertaking of a common carrier is to 
 
 (a) Beck v. Evans, 16 Bast, 245 ; Stuart v. Crawley, 2 Stark. 324 ; 
 Laing v. Calder, 8 Penn. St. R. 479 ; Relf v. Rapp, 3 Watts & Serg. 21. 
 {b\ Edwards v. Sherrath, 1 East, 604 ; Relf v. Rapp, 3 W. & Serg. 21. 
 
 (c) Riley d. Home, 5 Bing. 217 ; Batson v. Donovan, 4 B. & Aid. 21. 
 
 [d) Story, Oontr. § 760. 
 
OF PARTICULAR CONTRACTS. 415 
 
 No. 1028. Book 2, part 2, tit. 5, chap. 2, sec. 1, } 4, art. 2. No. 1029. 
 
 carry safely, and the notice is to exempt him from 
 this obligation. («) 
 
 In Pennsylvania a carrier may limit his common 
 law responsibility by a particular agreement, but the 
 exception will be strictly interpreted ; he cannot ex- 
 empt himself from all responsibility. (6) 
 
 Fifth Exception. — Exemption of the carrier ii/ a rule of law. 
 
 1028. The reason why a common carrier is re- 
 sponsible for the loss of goods is, that they are com- 
 pletely under his control, and the policy of the law 
 renders him liable for their loss on this account. But 
 when the reason of a rule ceases, the rule itself should 
 have no force. Accordingly, when a carrier has no 
 longer the control of property, he cannot be made 
 responsible. This is the case when intelligent beings, 
 as slaves, are the property which he has engaged to • 
 transport. The rule in cases of this kind is, that the 
 carrier is responsible only for want of care and skill. (c) 
 
 2. Of the beginning and end of the risk of the carrier. 
 
 1029. The carrier's liability commences the moment 
 the goods are delivered to him, or to his authorized 
 agent, for carriage, and accepted either expressly or 
 by implication. ((Z) But the goods must be completely 
 under his sole control, for if an agent be sent with 
 them, to take special care of them, his liability does 
 not attach. If, however, a servant happens to go 
 with them, but there is no intention to let him meddle 
 with the care of the goods, the carrier will be answer- 
 able for the loss.(e) 
 
 (a) Hollister v. Newlen, 19 Wend. 234 ; Cole v. Goodwin, ] 9 Wend. 251 ; 
 Clark V. Paxton, 21 Wend. 153 ; Atwood v. Reliance Transportation Co., 9 
 Watts, 87 ; Beckman v. Shouse, 5 Rawle, 179 ; Bingham v. Rogers, 6 Watts 
 & Serg. 500. Jones v. Yoorhees, 10 Ohio, 145 ; Gould v. Hill, 2 Hill, N 
 Y. 623. 
 
 (5) Atwood V. The Reliance Company, 9 Watts, 88. See Bingham v. 
 Rogers, 6 W. & S. 500 ; Laing v. Calder, 8 Penn. St. R. 479. 
 
 (c) Boyce v. Anderson, 2 Pet. 150 ; Clark v. M'Donald, 4 M'Cord, 223 • 
 Williams v. Taylor, 4 Port. 238. 
 
 (d) Selway v. HoUoway, Ld. Raym. 46 ; Leigh v. Smith, 1 0. & P. 640. 
 
 (e) Marsh. Ins. B. 1, c. 7, s. 5; Abbott on Ship, part 3, c. 2, s. 3 • 
 Story, Bailm. ^ 533. 
 
416 OF THINGS. 
 
 No. 1030. Book 2, part 2, tit. 5, chap. 2, sec. 1, § 4, art. 2. No. 1030. 
 
 The liability of the carrier ends the moment the 
 goods are deposited at their place of destination, and 
 when no express agreement has been made, such 
 place may be determined by usage, for usage enters 
 into every contract, unless there is an express agree- 
 ment to the contrary. (a) A delivery on the usual 
 wharf will, in such case, be sufficient, provided notice 
 be given to the consignee; (6) in such case the delivery 
 must be made at some reasonable time, for an offer to 
 deliver goods at an unreasonable time will not dis- 
 charge the carrier from his responsibility. (c) But 
 when there is neither agreement nor usage, the goods 
 must be delivered to the consignee in person, ((^) and 
 the moment the latter has possession, the carrier's risk 
 is ended. 
 
 3. Of the rights of a common carrier. 
 
 1030. A common carrier of goods is entitled, in all 
 cases, to demand the price of carriage before he 
 receives the goods, and, if not paid, he may refuse to 
 take charge of them ; if, however, he receives them 
 without the hire being paid, he may afterward recover 
 it by action, and he has a lien on the goods till he is 
 paid, unless he waives it, and if once the right is 
 waived, the lien is gone, and cannot be resumed. 
 
 The consignor or shipper is commonly bound to the 
 carrier for the hire or freight of goods. (e) The con- 
 signee also becomes bound for it, whenever he ex- 
 pressly promises or receives the goods with a bill of 
 lading containing the usual clause that the carrier will 
 deliver the goods to the consignee, "he or they 
 paying freight."(/) 
 
 (a) Ohiokering v. Fowler, 4 Pick. 371 ; Cope v. Cordova, 1 Rawle, 203. 
 (J) 1 Eawle, 203 ; 4 Pick. 371 ; Kohn v. Packard, 3 Miller, Lo. R. 225. 
 
 (c) Hill V. Humphreys, 5 W. & S. 123. See Hemphill v. Chenie, 6 W. & 
 S. 62; Graff v. Bloomer, 9 Penn. St. R. 114; Eagle v. White, 6 Whart. 
 505. 
 
 (d) Story, Bailm. §^ 508, 539, 553. 
 
 (e) Moore v. Wilson, 1 T. R. 659. 
 
 (/) Abbott on Shipp. part 3, c. 7, ^ 4. 
 
OF PARTICULAR CONTRACTS. 417 
 
 No. 1031. Book 2, part 2, tit. 5, chap. 2, sec. 1, ^ 5, art. 1. No 1034. 
 
 1031. The price or consideration for carrying goods 
 on land is called the hire; for carrying them on water, 
 freight. 
 
 § 5. — Of carriers of passengers. 
 
 1032. Carriers of passengers may be distinguished 
 into, 1, carriers by land ; and, 2, carriers by water. 
 
 ^rt. 1. — Of carriers by land. 
 
 1033. These must be considered with regard to, 
 1, their obligations; 2, their liability; and 3, their 
 rights. 
 
 1. Of their obligations. 
 
 1034. They are bound to carry all passengers who 
 offer themselves, against whose personal character 
 and conduct there are no just objections, provided they 
 have sufficient accommodations,(fl!) and the passage 
 money has been offered. They have no more right to 
 refuse a passenger than an innkeeper has to turn away 
 a guest. (5) 
 
 They are also required to provide sufficient carriages, 
 with suitable horses and harness ; careful drivers of 
 reasonable skill and good habits ; not to overload the 
 carriage, either with passengers or baggage ; to take 
 care of the baggage, which each passenger is allowed 
 to have ; to stop at the usual places and allow such 
 time as is commonly employed for taking refresh- 
 ments ; to use all ordinary precautions for the safety 
 of passengers on the road ; to carry passengers to the 
 end of their journey ; to put them down at the usual 
 places of stopping, unless there has been a special 
 contract to the contrary, and then to put them down 
 at the place agreed upon.(c) 
 
 (a) Piokford v. Grand Junction Railway Co., 8 Mees. & Wels. 372; 
 Jencks v. Coleman, 2 Sumn. 221. 
 
 (5) Bretherton v. Wood, 3 Brod. & Bing. 54. 
 
 (c) Story, Bailm. §^ 591 to 598 ; McKinney v. Neil, 1 McLean, 540. 
 
 Vol. I. 27 
 
418 OF THINGS. 
 
 No. 1035. Book2, parts, tit. 5, chap. 2, sec. 1, 5 S, art. 2. No. 1038. 
 
 2. Of the liabilities of carriers of passengers. 
 
 1035. Their liabilities toward passengers arise from 
 a neglect to use extraordinary care and diligence, to 
 carry safely those whom they take in their coaches ; 
 but they are not responsible for accidents, when they 
 use all reasonable skill and diligence. (a) 
 
 For the baggage of the passengers they are liable as 
 common carriers. (6) 
 
 3. Of the rights of carriers of passengers. 
 
 1036. The rights of such carriers are, 1, to demand 
 and receive their fare at the time the passenger takes 
 his seat, and if the fare be but partially paid, and the 
 passenger does not attend at the time of departure, 
 his seat may be given to another; but if the whole fare 
 be paid, he has a right to come in at any place on the 
 journey for which he has paid.(c) The carrier has a 
 lien on the baggage of his passenger for his fare or 
 passage money, but not on the person of the passenger, 
 nor the clothes he has on.{d) 
 
 Art. 2. — Of carriers of passengers by water. 
 
 1037. Carriers of passengers by water are in gene- 
 ral bound by the same rules as carriers by land ; and 
 liable for the same faults both as to the person and to 
 the baggage of the passenger. 
 
 1038. Salutary regulations have been made by con- 
 gress, as to the amount of provisions or sea-stores 
 which must be taken on board' of vessels bound to or 
 from the United States, intended for the carriage of 
 passengers ; and also as to the number of passengers 
 which vessels may take.(e) 
 
 (a) Ware v. Gary, 11 Pick. 106. 
 
 (J) HoUister v. Newlen, 19 Wend. 234 ; Cole v. Goodwin, 19 Wend. 251 ; 
 Jones V. Voorhees, 10 Ohio, 145 ; Hawkins v. Hoffman, 6 Hill, 586. 
 
 (c) Ker V. Mountain, 1 Bsp. 26. 
 
 (d) Abbott on Shipp. part 3, c. 3, s. 11. 
 
 (e) Act of 2d March, 1819; Act of 22d of February, 1847; Act of 2d 
 March, 1847, s. 2. •' 
 
OF PARTICULAR CONTRACTS. 419 
 
 No. 1039. Book2, part 2, tit. 5, chap. 2, sec. 3. No. 1040. 
 
 § 6. — Of postmasters. 
 
 1039. The post office is a public institution, esta- 
 blished for the general good, and the officers appointed 
 to fulfil the duties incident to it are, first, the post- 
 master-general, who has the superintendence of the 
 whole department; and, secondly, deputy postmasters, 
 officers who are located over the whole country. It 
 is their duty to receive and send, according to direc- 
 tion, all letters and other mailable matters, which are 
 delivered to them. The delivery is usually made by 
 being dropped into a box, at the place where they hold 
 their office. 
 
 Deputy postmasters are not responsible as common 
 carriers,(a) nor are they liable for the secret delin- 
 quencies of their sworn assistants, (6) because there has 
 been no default of their own ; but when a postmaster 
 is guilty of allowing a person, who is not permitted by 
 law, to act as his assistant; for example, where he 
 allowed one to have the custody of the mail, without 
 being sworn according to law, he is responsible for 
 any loss that may happen in consequence, (c) as he is 
 when guilty of negligence or fraud. (5) 
 
 SECTION 2. — OF PAWNS OR PLEDGES. 
 
 1040. In this section will be examined the contract 
 of pawn or pledge, which is the second kind of bailment 
 for the mutual benefit of both parties. Various defini- 
 tions have been given of this contract, difiering but 
 little from each other. A pawn or pledge, (for the 
 term is used as synonymous,) is a contract by which 
 the debtor, or some other person for him, delivers to 
 his creditor, as a surety for his claim, personal property 
 to be detained by him, which the creditor obligates 
 himself to return to the debtor after his claim shall have 
 
 (a) Rowning v. Goodchild. 3 Wils. 443 ; Bolan v. Williamson, 2 Bay, 551. 
 
 (b) Schroyer v. Lyiioh, 8 Watts, 453. 
 
 (c) Bishop V. Williamson, 2 Tairf. 495. 
 
 (d) Dunlap v. Monroe, 7 Cranch, 242, 269 ; 8 Watts, 453. 
 
420 OF THINGS. 
 
 No. 1041. Book 2, part 2, tit. S, chap. 2, eec. 2. No. 1041. 
 
 been satisfied. (a) The thing delivered by this con- 
 tract to the creditor is also called a pawn or pledge, 
 in Latin, pignus. 
 
 The party who is in debt, and delivers the thing as 
 a security, is called the pawnor, and he who receives 
 it, the pawnee. 
 
 1041. A pawn or pledge somewhat resembles many 
 other contracts, but still it is not exactly like them. 
 It is like a mortgage, because in both cases the property 
 is given as a security ; but it is unlike a mortgage in 
 this, that in a mortgage the title to the property passes 
 to the mortgagee, subject to an equity of redemption ; 
 while only a special property passes to the pawnee, 
 and the title remains in the pawnor. (6) It diflfers from 
 a lien, which is a mere right in a creditor to be paid 
 out of certain property, it is only a privilege ; although 
 the property is delivered in both cases, it differs from 
 a loan, because the thing pledged is not to be used, 
 except under special circumstances, when it is for the 
 
 (a) Pothier Du Oontr. de Nantissement, art. Prel. n. 1. Mr. Justice 
 Story, in his learned treatise on the Law of Bailments, has rejected the de- 
 finition of Pothier, and adopted that of Domat, because Pothier says that 
 the pawn is to be given " pour la surete de sa creance," ■which the 
 learned judge has translated " as security for his debt," taking the mean- 
 ing of the word in a narrow sense. The word creance is not used by 
 Pothier for debt, but for claim, or for the obligation of the person who 
 owes either money or any other thing ; and in the same treatise, " Du Con- 
 trat de Nantissement," n. 11, he uses it in the sense of claim, where he 
 says, "II n'importe quelle soit la creance pour surete de laquelle la chose 
 soit donnee en nantissement." In his Pandects, liy, 12, t. 1, s. I, Po- 
 thier says, " Le preteur ayant done renferme dans ce titre beaucoup de 
 choses relatives a differens contrats, il a dii faire preceder les creances en 
 general, puisque la matiere des creances renferme tons les contrats d'apres 
 lesquels nous nous en rapportons a la promesse d'outrui, car, comme le dit 
 Oelse, le mot creance est une denomination generale." See, as to the true 
 meaning of pawn, 2 Bell's Com. 20, 5th ed. ; Jones on Bailm. 36, 117 ; 
 Dane's Ab. c. 17, art. 4 ; Dig. 50, 16, 2, 38 ; Hein. Pand. lib. 20, 1. 1, §^ 2, 
 3, 4, 5 ; Ayl. Pand. 524 ; Story, Bailm. § 286 ; Coggs v. Bernard, Ld. 
 Raym. 909, 913 ; Domat, partie 1, 1. 3, t. 1, s. 1, n. 1 ; Bowy. Mod. Civ. 
 Law, c. 29, p. 176 ; Ersk. Inst. B. 3, t. 1, n. 33. 
 
 (b) Cortelyou v. Lansing, 2 Gaines' Cas. Er. 200; Conrad v. Atlantic Ins. 
 Co., 1 Pet. 449; Haven v. Low, 2 N. Hamp. 13; Brown v. Bement, 8 
 John. 97; Fletcher v. Howard, 2Aik. 115 ; Lewis v. Stevenson, 2 Hall, 63 ; 
 Gleason v. Drew, 9 Greenl. 82 ; Ward v. Sumner, 5 Pick. 60. 
 
OF PARTICULAR CONTRACTS. 421 
 
 No. 1042. Books, part 2, tit. 5, ehap. 2, sec. 2,5 1. No. 1042. 
 
 benefit of the pawnor. («) It differs from a deposit, 
 because in this contract the property is delivered to the 
 depositary to be kept for the benefit of the depositor, 
 and in a pledge it is to be kept as a security for the 
 payment of a claim. The difference between hypo- 
 thecation and pledge is this : hypothecation does not 
 require possession to accompany it. The case of bot- 
 tomry bonds, and the claims for seamen's wages, are 
 nearly similar to the hypothecation of the civil law ; 
 these, however, are rather liens than pledges. Another 
 instance may be mentioned : where a chattel is not in 
 existence, it cannot properly be pledged, because it 
 cannot be delivered, but the creditor has a lien by 
 way of hypothecation, so that his right will attach the 
 moment the chattel is produced. (6) 
 
 To make the contract of pawn there must be, 1, 
 property given in pledge ; 2, a claim to be secured ; 
 3, the delivery of the thing pledged ; 4, the pawnor 
 must enter into obligations; 5, the pawnee must be 
 liable to the obligations ; and, 6, after it has been 
 made, it may be extinguished. 
 
 § 1. — What property may be pawned. 
 
 1042. The term pawn, ex vi termini, excludes the 
 idea of real estate. When lands are given as security 
 for a debt or other obligation, the title of them is con- 
 veyed to the creditor by a mortgage. Things which 
 may be the subject of a pledge or pawn are ordinarily 
 goods and chattels, but money, negotiable instruments 
 and choses in action, and, indeed, any other valuable 
 thing of a personal nature, such as manuscripts and 
 patent rights, may, by the common law, be delivered 
 in pledge. From principles of public policy the pay 
 of soldiers and mariners in the service of the govern- 
 ment cannot be pledged. 
 
 (a) Thompson v. Patrick, 4 Watts, 414. 
 (J) Macomber i;. Parker, 14 Pick. 497. 
 
422 OF THINGS. 
 
 No. 1043. Book 2, part 2, tit. 5, chap. 2, sec. 2, i 2, 3, 4. No. 1045. 
 
 § 2.— What claim may be secured by a pledge. 
 
 1043. The pawn must be given for a claim, whether 
 it be a debt for money or for the fulfilment of any 
 other engagement. It may be for that of the pawnor 
 or any one else ; the claim or engagement may be 
 due, or the pawn may be as a security for a future 
 debt or lawful engagement. 
 
 When the pledge is given to secure a particular 
 debt or contract, it will not authorize the pawnee to 
 retain it for another, unless, from the circumstances, 
 such seems to have been the intention of the parties.(ffl) 
 But the pawn is liable for all incidental charges and 
 expenses, as, for example, interest on a debt, or any 
 expenses about the pledge. (6) 
 
 § 3. — Of the delivery of the thing pledged. 
 
 1044. One of the essential requisites of this con- 
 tract is, that ihe thing pledged shall be delivered to 
 the pawnee, for, till then, he acquires no right or 
 property in it. The delivery may be actual or con- 
 structive, (r) 
 
 § 4. — Of the obligations and rights of the pawnor. 
 
 1045. By the act of pawning, the pawnor enters 
 into an implied agreement or warranty that he is the 
 owner of the property pawned, and that he has a right 
 to pass the title. {d) 
 
 The pawnor has the right to redeem the pledge, 
 notwithstanding he has not strictly conaphed with the 
 contract, until the pawnee has taken such steps as to 
 divest him of that right, (e) Btit the pawnee may 
 deprive him of this right by selling the pawn ;(/) and 
 
 (a) Jarvis v. Kogers, 15 Mass. 389, 397 ; Gallist v. Lynch, 2 Leigh, 493. 
 
 (b) Ayl. Pand. B. 4, t. 18 ; Domat, partie 1, liv. 3, t. 1, ^ 3, n. 4, 19, 
 
 (c) Jewett U.Warren, 12 Mass. 300; Poth. du Contrat de Nantissement, 
 n. 8. 
 
 {d) Story, Bailm. ^ 354. 
 
 (e) Cortelyou v. Lansing, 2 Oaines' Cas. Err. 200. 
 
 (/) 1 Reeves' Hist. 161 ; 2 Gaines' Cas. Err. 200; Yelv. 178. 
 
OF PARTICULAR CONTRACTS. 423 
 
 No. 1046. Book 2, part 2, tit. 5, chap. 2, Beo. 2, J 5, a rt. 1. No. 1046. 
 
 the pawnor will be presumed to have abandoned it, 
 after a great length of time. (a) 
 
 The pawnor has no right. to redeem the pledge 
 partially, by paying a part of the debt, and, if several 
 things be pledged for the same engagement, the debtor 
 is not entitled to either until he has entirely fulfilled 
 it.(6) 
 
 § 5. — Of the obligations and rights of the pawnee. 
 
 Art. 1. — Of the pawnee's right to use the pledge. 
 
 1046. In virtue of the pawn, the pawnee acquires 
 a qualified property in the thing, and is entitled to 
 the exclusive possession, during the time and for the 
 object during which it is pledged, (c) 
 
 While the pawn is in his possession, the pawnee 
 may use it, when such use is for the benefit of the 
 pawnor, and, if its preservation depends upon its use, 
 it is the duty of the pawnee to use ii.{d) If it may be 
 used without injury, and it is used by the pawnee, he 
 does so at his peril. If its use will be injurious to 
 the pawnor, the pawnee is not allowed to use it,(e) in 
 the absence of any contract. 
 
 The rule of the civil law is, that where the pawnee 
 uses the pledge, and it produces a profit, he shall 
 account for it to the pawnor, he being allowed his 
 expenses. This is but equity, and, accordingly, it has 
 been holden that where a slave was pledged to secure 
 the payment of a sum of money, which had been 
 borrowed, the pawnee was liable in assumpsit for the 
 clear profits of the slave beyond the interest of the 
 debt, the principal having been paid.(/) 
 
 (a) Matth. Pre. Ev. 20, 331. 
 
 h) Union Bank v. Laird, 2 Wheat. 390 ; Elder v. Rouse, 15 Wend, 218. 
 
 (c) 2 Bl. Com. 396; Bac. Ah. Bailment, (B). 
 
 ((i) Jones' Bailm. 81; Story, Bailm. ^ 329; Thompson v. Patrick, 4 
 Watts, 414. 
 
 (e) Story, Bailm. ^ 330. See Thompson v. Patrick, 4 Watts, 414. 
 
 (/) Houton V. Holliday, 1 Car. :Law Rep. 87; S. C. 2 Murph. 111. See 
 Ross V. Newell, 1 Wash. 14 ; Davenport v. Tarlton, 1 Marsh. 244. 
 
424 OF THINGS. 
 
 No. 1047. Book 2, part 2, tit. 5, chap. 2, sec. 2, } 5, art. 2, 3. No. 1049. 
 
 •Art. 2. — What care, the pawnee shall take of the pledge. 
 
 1047. The principal obligation which arises from 
 the contract of pawn on the part of the pawnee is to 
 return the thing pledged to the pawnor, when the 
 obligation of the latter shall have been acquitted. 
 This obligation, like all those made to deliver a certain 
 thing, is extinguished, when the thiag is lost without 
 the feult of the pawnee ; or if it be lost by the fault of 
 the pawnor. 
 
 From this principal obligation of returning the 
 pledge, another is a necessary conseqifence,' which is 
 that of taking care of it, during the time it has been 
 pawned, in order to return it afterward. The pawnee 
 is bound to take ordinary care of the pledge by using 
 ordinary diligence. If he does this he will not be 
 responsible for the loss. (a) 
 
 .Art. 3. — Of the remedy of the pawnee. 
 
 1048. The pawnee has a double remedy. The 
 pledge has been given to him as a security for his 
 claim, upon the express or implied condition that if 
 such claim be not satisfied within the time agreed 
 upon, he shall have the right to apply the thing 
 pledged, or its proceeds, to the satisfaction of his 
 claim ; this is one of his remedies. As the debt is 
 due, and it is a personal obligation of the debtor, in- 
 dependent of the pledge, it is evident he may bring 
 an action for its recovery, just as if he had no such 
 security; this is his other remedy. 
 
 1. Of the pawnee's right to sell the pledge. 
 
 1049. When the pawnor becomes in default by not 
 paying the debt he owes, or fulfilling his engagement, 
 the pawnee acquires a right to sell the pledge and pay 
 himself out of the proceeds ; but, until the sale, the 
 pawnor may redeem it, by paying what he owes. In 
 
 (a) Jones, Bailm. 75 ; 1 Dane's Ab. c. 17, art. 12 ; Domat, liv. 1, 1. 1, 
 § 4, n. 1 ; Poth. du Contrat de Nantissement, n. 34. 
 
OF PARTICULAR CONTRACTS. 425 
 
 No. 1050. Book 2, part 2, tit. 5, chap. 2, sec. 2, J S, art. 3. No. 1050. 
 
 some cases notice of the intended sale is required, and 
 in all cases it is prudent to give it. Care must be taken 
 not to sell the pledge before the pawnee has acquired 
 the right to do so ; when there has been an agreement 
 as to time when the pledge might be sold, that time 
 must have expired, and then the goods pledged may be 
 sold without further notice, but still a notice is advisa- 
 ble when it can be given. On the contrary, when the 
 goods are pledged for an indefinite period of time, the 
 pawnee cannot sell them without notice to the person 
 by whom they were pledged; (a) and if the latter be 
 absent, or cannot be found, judicial proceedings should 
 be had to bar his right to redeem. (6) When several 
 things have been pawned for the same claim, they 
 may be sold seriatim until the whole debt shall be dis- 
 charged. The moment the pawnee has made a suffi- 
 cient sum to pay himself, his right to sell the remainder 
 is at an end. He is bound to return the surplus, if 
 any, and if the proceeds of the sale should not be suffi- 
 cient to pay the debt, the pawnor wiU still be liable 
 for the difference. (c) 
 
 2. Of the pawnee's right of action. 
 
 1050. The debt or engagement for which a pawn is 
 given is the principal obligation, and the obligor is 
 personally bound to fulfil it, as if no pledge had been 
 given. The creditor may, therefore, bring an action 
 for the recovery of the debt at any time after it be- 
 comes due, without any surrender of the pledge. And 
 if the pawn be lost, or surrendered to the pawnor, or 
 surreptitiously obtained by the latter, or if the pawnee 
 convert it to his own use, and the pawnor recover 
 damages from him, on that account, for its value, the 
 original obligation survives. ((?) 
 
 (a) De Lisle v. Priestman, 1 P. A. Browne, 176. 
 
 (J) Garlick v. James, 12 John. 146 ; Hart v. Ten Eyck, 2 John. Ch. 62. 
 
 (c) Bac. Ab. Bailment, B. 
 
 (d) Landon v. Buel, 9 Wend. 80 ; Elder v. Kouse, 15 Wend. 218 ; Case 
 V. Boughton, 11 Wend. 106. 
 
426 OF THINGS. 
 
 No. 1051. Book 2, part 2, tit. 5, chap. 2, sec. 1. No. 1053. 
 
 § 6. — Of the extinction of the contract of pawn. 
 
 1051. Whatever extinguishes the claim which the 
 pawn was given to secure, discharges the pawn, arid 
 entitles the pawnor to regain the possession. This 
 may be done in several ways. 
 
 1. By payment of the debt, or the discharge of the 
 engagement for which the pawn was given. 
 
 2. By accord and satisfaction. 
 
 3. By taking a new security instead of the old one, 
 with an intention of liquidating the one which was first 
 given, and relying upon the latter, without making any 
 new provision as to the pledge. The effect of this, 
 which the civilians call a novation, has been already 
 explained. But unless there be a clear intention to 
 extinguish the original security, a mere renewal of a 
 claim will not have that effect. 
 
 4. When on a trial between the pawnee and the 
 pawnor on the original claim, a final judgment is ren- 
 dered in favor of the pawnor, the pledge is discharged. 
 
 5. The destruction of the pledge destroys all right 
 to it. 
 
 6. The release of the thing pledged or a waiver of 
 it, destroys the right which the pawnee had. 
 
 Second Class.— Of bailments for the henefit of the bailor. 
 
 1052. Having disposed of the first class of bailments 
 where the contract is beneficial to both parties, let us 
 next consider the second class, or those in which the 
 trust is for the benefit of the bailor; these are, 1, de- 
 posits ; and 2, mandates. 
 
 SECTION 1. OF DEPOSITS. (a) 
 
 1053. Deposit is usually defined to be a naked bail- 
 ment of goods by one of the contracting parties to 
 another, to be kept by the latter for the former, with- 
 out reward, and to be returned when the depositor 
 
 (a) SeeBac. Ab. Bailment ; Inst. 3, 15, 3 ; Nov. 73 and 78 ; Poth. Du 
 Depot ; Domat, partie 1, liv. 3, 1. 1, s. 5, n. 26 ; Code 4, 34. 
 
OF PARTICULAR CONTRACTS. 427 
 
 No. 1054. Book 2, part 2, tit. 5, chap. 2, sec. 1, } 1. No. 1054. 
 
 shall require it. The term deposit signifies not only 
 the contract above described, it means also the thing 
 deposited. (a) 
 
 The 'party who makes the deposit is called the 
 depositor, and he with whom it is made is denominated 
 the depositary. This section will be divided into 
 three heads: 1, of the kind of deposits; 2, of the 
 nature of deposits ; 3, of the rights and obligations of 
 the parties. 
 
 § 1. — Of the kind of deposits. 
 
 1054. In the civil law deposits are of two kinds, 
 necessary and voluntary. A necessary deposit is one 
 which arises from pressing necessity, as, for instance, 
 in case of fire, a shipwreck, or other overwhelming 
 calamity; and thence it is called miserahile depositum.{b) 
 A voluntary deposit is such as arises without any such 
 calamity, from the mere consent or agreement of the 
 parties. (c) Although this distinction may be material 
 in the civil law in respect to the remedy, yet in the 
 common law there is no such difference. ((^) 
 
 Deposits are again divided in the civil law into 
 simple deposits and sequestrations^ the former are where 
 there is but one party depositor, of whatever number 
 of persons composed, having a common interest ; the 
 latter contract is where there are two or more de- 
 positors, having each a different and adverse interest. 
 These distinctions give rise to very different cosider- 
 ations in point of responsibilities and rights. Hitherto 
 they do not seem to have been incorporated into the 
 commercial law; though, if cases should arise, the 
 principles applicable to them would scarcely fail of 
 receiving general application, at least, so far as they 
 affect the rights and responsibiUties of the parties. 
 
 (a) Jones, Bailm. 36, 117 ; Story, Bailm. ^ 41 ; Poth. Du Depot, art. 
 prel. n. 1 ; Code of Louis, art. 2897. 
 (I) Code of Louis, art. 2935. 
 (c)Dig, 16, 3,2. 
 (d) Jones, Bailm. 48. 
 
428 OF THINGS. 
 
 No. 1055. Book 2; part 2, tit. 5, chap. 2, sec. 1, ^ 2. No. 1055. 
 
 Cases of judicial sequestration and deposit, especially in 
 courts of chancery and admiralty, may hereafter require 
 the subject to be fuUy investigated. But few cases 
 have yet occurred where the goods have been lost while 
 in the custody of the law, where it has been requisite 
 to inquire on whom the loss should fall.(a) 
 
 By the definition of deposit above given, it is re- 
 quired that the thing deposited should be returned. 
 There is a kind of deposit where that .need not be done, 
 and this has been called an irregular deposit. This 
 takes place when a person having a sum of money, 
 which he does not think safe in his own hands, con- 
 fides it to another, who is to return to him, not the 
 same money, but a like sum, when he shall demand 
 it. (6) The usual deposit made by a person deahng with 
 a bank is of this nature ; the title to the money so 
 deposited vests in the depositary, and the depositor 
 becomes a mere creditor of the latter. If the money 
 deposited should be lost, the loss will fall on the de- 
 positary, (c) 
 
 There is still another kind of deposit, which for dis- 
 tinction's sake may be called a quasi deposit, because 
 it does not arise ex contractu. It is generally governed 
 by the same rules which regulate a common deposit. 
 As the finder of an article is not bound to take posses- 
 sion of it, he assumes a responsibility if he takes the 
 possession. From that moment, he is obliged to use 
 ordinary care of the thing. The owner, on the other 
 hand, is bound to pay him back such money as he may 
 have laid out in necessary expenses; and if no owner 
 reclaim the goods they belong to the fortunate finder, ((i) 
 
 § 2. — Of the nature of a regular deposit. 
 
 1055. This head will be divided into three others : 
 1, what property may be deposited ; 2, between what 
 
 (a) Story, Bailm. ^ 41-^ 
 lb) Poth. Du Depot, 
 (c) Seel Bell, Com. 557,558. 
 
 id) 1 Bl. Com. 296 ; 2 Kent, 290 ; Story, Bailm. ^ 35 ; Domat, 1. 2, t. 9, 
 s. 2, n. 2 ; Doct. & St. Dial. 2, c. 38 ; Bac. Ab. Bailment, D. 
 
OF PARTICULAR CONTRACTS. 429 
 
 No. 1056. Book 2, part 8, tit! 5, chap. 2, see, 1, } 2, art. 1, 2, 3. No. 1059. 
 
 persons the contract may be formed ; 3, of the reqm- 
 sites to form the contract. 
 
 <Mrt. 1. — What property may be deposited. 
 
 1056. The property which is the subject of a deposit 
 must be personal; real property cannot be given in de- 
 posit; when it is given as a security, it is mortgaged. 
 Debts, choses in action, and securities given for them, 
 as bonds, notes, and the hke, may be deposited. (a) 
 
 The depositor may be the owner of the thing de- 
 posited, or he may have only a quaUfied right in it ; 
 indeed, when he has only a possession, he may deposit 
 it, and he is entitled to recover it back against every 
 one but the rightful owner. (&) But if the real owner 
 receive his own property in deposit by mistake, he is 
 not compelled to return it.(c) 
 
 ^rt. 2. — Between what persons the contract may be formed, 
 
 1057. The parties must be capable of entering into 
 contracts. An infant and a married woman are each 
 incompetent; the former without the consent of his 
 guardian, the latter without that of her husband. (<?) 
 
 ^rt. 3. — Of the requisites to form the contract of deposit. 
 
 1058. There must be, 1, a delivery of the thing de- 
 posited ; 2, the intent of the delivery must be to keep 
 the thing ; 3, that the depositary take care of it gra- 
 tuitously ; 4, consent of the parties. 
 
 1. There must ie a delivery. 
 
 1059. There must be a delivery from the depositor 
 to the depositary of the thing deposited, which he is 
 to keep. This delivery may be made by the agent of 
 the depositor to the agent of the depositary, or by the 
 
 (a) 1 Bell, Cdm. 258 ; Story, Bailm. § 51. 
 
 (b) Ayl. Pand. 522 ; Dig. 16, 3, 1, 30. 
 
 (c) Poth. Du Contrat de Depot, n. 4 ; Dig. 16, 3, 15. 
 
 (d) Poth. Du Contrat de Depot, n. 4 et 5. 
 
430 OF THINGS. 
 
 No. 1060. Book 2, part 2, tit 5, chap. 2, sec. 1, § 2, art. 3. No. 1062. 
 
 parties themselves. But when the thing is already in 
 the possession of the depositary, it is not requisite that 
 there should be two deliveries by the depositary to the 
 depositor, and then again from the depositor to the 
 depositary ; as if you had my History of the United 
 States, as a pawn, and I pay you the debt I owed you, 
 and we then agree that you shall hold the History on 
 deposit, (a) 
 
 2. Of the intent of the delivery. 
 
 1060. This intent must be that the depositary shall 
 keep the thing to be returned to the depositor, for if it be 
 for another purpose it will no longer be a deposit. If 
 the delivery be to convey to the depositary the title, of 
 the thing, it is a gift, a sale, or a barter, or some other 
 such contract ; if to grant him the use for his benefit, 
 it is a loan or a hiring ; if it is to do something to it 
 for the depositor, it is a loan or a mandate ; it is a loan 
 if the depositor receives a compensation, or a mandate 
 if it be done gratuitously. (6) 
 
 3. The custody must be gratuitous. 
 
 1061. The consent must be gratuitous, for, if a 
 reward be required, it is no longer a deposit, but a hire 
 of custody, locatio custoditB. 
 
 4. Of the consent of the parties. 
 
 1062. The consent of the parties to a deposit may 
 be expressly given, or it may be implied from circum- 
 stances ; for example, Peter is in the habit of leaving 
 certain goods with Paul as he passes daily, while he 
 goes to another place; on one occasion he leaves a 
 bundle of merchandise in the store of Paul, in sight of 
 the latter, without saying any thing, and Paul makes 
 no objection ; this is a deposit. 
 
 In general, no one is forced to become a depositary, 
 but there are certain cases of necessary deposits, where 
 
 (a) Poth. Du Contrat de Louage, n. 8. 
 (J) Poth. Du Contrat de Depot, n. 9. 
 
OF PARTICULAR CONTRACTS. 431 
 
 No. 1063. Book a, part 2, tit. 5, chap. 2, sec. 1, 5 3, art 1, 2. No. 1065. 
 
 no such consent is required ; as when goods are forced 
 on a party in case of fire, or when the bailment arises 
 from accident. 
 
 § 3. — Of the rights and obligations of the parties. 
 Art. 1. — Of the rights of the depositor. 
 
 1063. The depositor has a right to the restoration 
 to him of the thing deposited, whenever he shall de- 
 mand it, and also of all the increase which belongs to 
 it ; if it be a female animal, and it has had a young 
 one, while it was in deposit, that must be restored with 
 the dam ; and if a part be lost the remainder must be 
 returned. 
 
 When the deposit is made by several co-depositors, 
 they must join in making the demand. (a) When there 
 are several depositaries, they are jointly and severally 
 liable for the deposit. 
 
 The thing must be delivered at the place agreed 
 upon, but if no place be specified, then at the place 
 where it is, or where it ought to be kept. (6) 
 
 Art. 2. — Of the obligations of the depositary. 
 
 1064. The obligation which the depositary contracts 
 toward the depositor, is the principal one in this con- 
 tract. It consists, 1, to keep the deposit with care ; 
 2, to deliver it to the depositor when required. 
 
 1. Of the care to he exercised by the depositary. 
 
 1065. When a special contract is made as to the 
 custody of the goods, the depositary will not be respon- 
 sible if they are kept according to the agreement, 
 although they may be lost by being kept in an unsafe 
 place. 
 
 But if no agreement is made as to the manner of 
 keeping them, the depositary will be responsible only 
 for gross neglect, which is not taking slight care of the 
 
 (a) story, Bailm. ^ 114, 116. 
 
 (I) 2 Kent, Com. 508, 4th ed. ; Story, Bailm. § 117. 
 
432 OF THINGS. 
 
 No. 1066. Book 2, part 2, tit. 5, chap. 2, sec. 1, } 3, art. 3. No. 1067. 
 
 thing ; this may be the case where a careless man takes 
 the same care of the deposit as he does of his own 
 property ; as where the depositary put the money de- 
 posited in a box with his own, in a common tap-room, 
 and it was stolen, he was held liable. («) 
 
 The degree of diligence to be exercised is always in 
 proportion to the value of the deposit, and the ease 
 with which it may be lost. But if the nature of the 
 deposit is concealed from the depositary, he will be 
 liable only for gross negligence. (&) 
 
 With regard to the mode of keeping the deposit, it 
 may be inquired whether the depositary can use it ? 
 In general, he doubtless has no right to use it, but in 
 certain cases it may be presumed to be the intention 
 of the parties that he should use it. His rjght to do 
 so, in the absence of any special contract, will depend 
 upon this intention, which may be collected from cir- 
 cumstances, (c) 
 
 2. Of the return of the deposit. 
 
 1066. In treating of the rights of the depositor, the 
 duties of the depositary as to the return of the deposit, 
 to whom it is to be returned, and the place where it is 
 to be made, were considered, so as not to require any 
 further examination here. 
 
 Art. 3. — Of rights of the depositary. 
 
 1067, When the depositary has necessarily incurred 
 any expense in the preservation of the deposit, he is 
 entitled to be reimbursed, whether the deposit be a 
 voluntary one, or whether it arise from necessity, as 
 in case of shipwreck, or fire, or from any casual cause, 
 as by finding. ((/) 
 
 (a) Doorman v. Jenkins, 2 Ad. & Ell. 256 ; S. 0. 4 Nev. & Man. 470. See 
 Tomkins v. Saltmarsh, 14 S. & E. 275. 
 
 (b) Jones, Baihn. 38, 39 ; Story, Bailm. ^ 79. 
 
 (c) Jones, Bailm. 81 ; Moses v. Conham, Owen, 123. See ante, n. 1046. 
 
 (d) Nicholson v. Chapman, 2 H. Bl. 254. 
 
OF PARTICULAR CONTRACTS. 433 
 
 No. 1068. Book2, parts, tit. 5, chap. 2, sec. 2,5 1. No. 1069. 
 
 SECTION 2. OF MANDATES, (a) 
 
 1068. The second kind of bailment, which is for the 
 benefit of the bailor, is the contract of mandate. A 
 mandate is a contract by which one of the parties 
 entrusts the other with the transaction of one or more 
 afiairs, to manage them in his place and at his risk ; 
 while the other engages to perform the trust , gratuit- 
 ously, and to be accountable to the former for the per- 
 formance. (&) 
 
 The contracting party who confides the management 
 of the afiair to the other, is called the mandator, and he 
 who accepts the charge, mandatary. 
 
 This section will be considered under six heads, 
 which will relate to, 1, the subject matter of the con- 
 tract ; 2, thfe gratuity of the contract ; 3, the consent 
 of the parties and form of the contract ; 4, the obliga- 
 tions and rights of the mandatary ; 5, the obligations 
 of the mandator ; 6, the dissolution of the contract of 
 mandate. 
 
 § 1. — What may be the subject matter of the contract. 
 
 1069. The mandate must be in relation to some 
 lawful and definite act to be done in futuro; it must be 
 about some business to be done, negotium gerendum; not 
 a thing already done, negotium gestum, for this cannot 
 be the object of the contract. The mandatary must 
 be able to perform the mandate, for otherwise it would 
 be nugatory, as if you engaged a dumb man to deliver 
 a verbal message, or to teach your son to read.(c) The 
 business to be done must not concern the mandatary, 
 as, if I request you to do a certain thing, in which you 
 alone have an interest, it is not a mandate, but merely 
 advice I give you. But it is not requisite that the 
 business which I request you to perform should concern 
 
 (a) See Story, Bailm. H37 ; Poth. Pand. lib. 17, 1. 1 ; Wood's Civ. Law, 
 B. 3, c. 5 ; Hal. An. Civ. Law, 70 ; Bowy. Mod. Civ. Law, c. 39, p. 224 ; 
 Poth. Mandat ; Inst. 3, 27, in pr. ; 1 Brown's Civ. Law, 382. 
 
 (b) Poth. Mandat, n. 1. 
 
 (c) Poth. Mandat, n. 12. 
 
 Vol. I. 28 
 
434 ^ OF THINGS. 
 
 No. 1070. Book2, parts, tit. 5, ohap>2, sees, 52, 3. No. 1071. 
 
 me alone, in whole or in part, provided I have an in- 
 terest in its performance. 
 
 In the common law the mandate is confined to per-, 
 sonal property ; contracts relating to real estate of the 
 same nature, would not be classed among mandates, 
 but would be treated merely as special undertakings, (a) 
 
 § 2.— The contract must be gratuitous. 
 
 1070. Like the contract of deposit, a mandate pmst 
 be gratuitous, for if any consideration is paid, it will 
 change its nature, and make it a hiring: mandatum 
 nisi gratuitum nullum est.(b) The employment of coun- 
 sel in England, and perhaps in some of the United 
 States, is considered as a mandate, and he cannot, there- 
 fore, recover fees ; whatever is given is considered as 
 a voluntary gift, an honorarium. But if a client who 
 should employ an advocate, and at the time of giving 
 such mandate, he should promise to give him a copy of 
 the Pandects, which he observed he wanted in his 
 library, this would not be considered a payment, but a 
 token of gratitude ; for his talents in defending his 
 cause are not appreciable. (c) Such at least is the doc- 
 trine of the civil \a.w.{d) But when an attorney who 
 is entitled to compensation, performs such business 
 confided to him, the contract is that of hiring. (e) 
 
 § 3. — Of the consent of the parties, and form of the contract. 
 
 1071. It is of the essence of the contract, that the 
 mandator should intend to require the mandatary to 
 take charge of the mandate, and to agree that it should 
 be at his risk, and that he would indemnify the man- 
 datary ; the latter, on his part, should agree to attend 
 to the business. A mandate differs from a mere re- 
 commendation. Fraud, imposition or mistake, would 
 
 (a) Story, Bailm. ^ 141. 
 (*)Dig. 17, 1, 4; Inst. 3,27. 
 
 (c) Pothier, Mandat, n. 23. 
 
 (d) Dig. 50, 13, 12. 
 
 (e) Vide ante, n. 1005. 
 
OF PARTICULAR CONTRACTS. 435 
 
 No. 1072. Book2, part 2, tit. 5, chap. 2, sec. 2, 5 4- No. 1073. 
 
 have the effect of destroying an apparent consent, and 
 where there was no consent, express or imphed, there 
 would be no contract. (a) 
 
 1072. No particular form is requisite in making this 
 contract, in order to give it validity. It may be verbal 
 or in writing, express or implied, under seal or other- 
 wise. The contract may be varied at pleasure, it may 
 be absolute or conditional, general or special, tempo- 
 rary or permanent.(5) 
 
 § 4. — Of the obligations and rights of the mandatary. 
 
 1073. As the mandatary has no special property in 
 the mandate, his duties toward the mandator, as to 
 the care he is to take of the mandate, are similar to 
 those of a depositary, he will be liable only for gross 
 negligence. (c) But a mandatary who is known to 
 possess certain skill, and agrees, either expressly or 
 by implication, to exert it in the particular case, is 
 required to exercise competent skill, (c?) He is not 
 bound for non-feasance, because he is not bound to 
 perform a work without consideration, but if he once 
 undertake it he is obliged to perform it as the law 
 requires, (e) 
 
 After the work has been performed, the mandatary 
 is bound to return the property with all its increase. 
 
 Upon principles of justice, the mandatary is bound 
 to render an account of the trust reposed in him, and 
 to show how it has been performed. In this account 
 the mandatary is entitled to a credit for all necessarj- 
 expenses and charges, to which he has been subjected 
 by the trust. 
 
 {a) Pothier, Mandat, n. 18, 19, 20 ; Lethbridge v. Phillips, 2 Stark. 544. 
 
 {b) Wood's Civ. Law, 242 ; Bowy. Mod. Civ. Law, 226 ; 1 Domat, B. 1, 
 t. 15, ^ 1, 6, 7, 8 ; Poth. Mandat, n. 34, 35, 36. 
 
 (c) Coggs V. Barnard, Ld. Raym. 909 ; Tompkins v. Saltmarsh, 14 S. & 
 R. 275 ; Tracy v. Wood, 3 Mason, 132 ; Stanton v. Bell, 2 Havrks, 145 ; 
 Sodowsky v. McFarland, 3 Dana, 205 ; Bland v. Warmack, 2 Murph. 373 ; 
 Beardslee v. Richardson, 1 Wend. ; Whitney v. Lee, 8 Mete. 91. 
 
 {d) Shells V. Blaokburne, 1 H. Bl. 158. 
 
 (e) Inst. 3, 27, 11 ; Thorne v. Deas, 4 John. 84 ; Magee v. Bast, 6 J. J. 
 Marsh. 455 ; Stephens v. White, 2 Wash. 203. 
 
436 OP THINGS. 
 
 No. 1074. Book 2, part 2, tit. 6, chap. 2, sec. 2, ^ 5, 6. No. 1076. 
 
 § 5. — Of the obligations of the mandator. 
 
 1074. Although the mandate is to be without re- 
 ward, yet, upon the plainest principles of justice, the 
 mandator must be liable to the mandatary in certain 
 cases, though perhaps no authorities can be found to 
 support them, except what flow from sound reason 
 and equity. 
 
 1. When the mandatary must incur expenses, it 
 must be presumed, in the absence of any agreement, 
 that the mandator wiU reimburse the mandatary who 
 expended his money for him. 
 
 2. When the mandatary has been obliged to enter 
 into collateral contracts in order to accomplish the 
 principal, the mandator will, on the principles of jus- 
 tice, and the presumed intention of the parties, be 
 considered to have agreed to indemnify him. 
 
 § 6. — Of the dissolution of the contract of mandate. 
 
 1075. It has already been observed, that when the 
 mandatary refuses to accept of the mandate, he cannot 
 be sued for non-feasance. In that case in truth no 
 contract was ever made, because there was no consent 
 of one of the parties. But in such case the property 
 bailed is to be restored to the mandator. And the 
 mandatary, or person to whom goods may have been 
 sent, in order to make him such, is bound to act with 
 some care in protecting the property from injury, until 
 it is returned, and not with gross neghgence. 
 
 1076. After it has been formed, the contract may 
 be dissolved in various ways. 
 
 1. By the death of the mandatary, where the mandate 
 remains wholly unexecuted . If it be in part executed, 
 there may be in some cases a personal obligation on 
 the part of his representatives to complete it. (a) When 
 there are several mandataries, and the trust requires 
 
 (a) Poth. Mandat, n, 101. 
 
OF PARTICULAR CONTRACTS. 437 
 
 No. 107V. Book 2, part 2, tit. 5, chap. 2 , sec. 2, ^ 0. No. 1077. 
 
 the consent of the whole, the death of one dissolves 
 the contract, (a) 
 
 2. By death of the mandator; but this apphes where 
 the mandate is not executed ; for if it be executed in 
 part at the time, it is binding to that extent, and his 
 representatives must indemnify the mandatary. (&) 
 
 3. By the express revocation of the mandator. 
 
 4. By the operation of law, as where the mandator 
 sells the property which is the subject of the man- 
 date, (c) 
 
 5. By the change of condition of the mandator, as if 
 either party become insane, or, being a woman, mar- 
 ries before the execution of the mandate. ((Z) 
 
 6. When the power of the mandator ceases over the 
 subject matter of the mandate ; as if he be a guardian, 
 and the ward attain his full age.(e) 
 
 Third Class. — Of bailments for the benefit of the bailee. 
 
 1077. In the third class of bailments are to be 
 placed loans for use and loans for consumption. By 
 loan is meant the act by which a person lets another 
 have a thing to be used by him gratuitously, and 
 which is to be returned, either in specie or in kind, 
 agreeably to the terms of the contract. The thing 
 which is thus transferred is also called a loan. But 
 although in general a loan implies that the thing is 
 lent without reward, yet in some cases a consideration 
 is given for the use of the thing, as interest for the 
 loan of money. (/) When a consideration is given, the 
 nature of the contract is changed, and it becomes a 
 hiring. 
 
 The bailments of this class will be divided into 
 three kinds: 1, loan for use, or commodatum; 2, loan 
 for consumption, or mutuum; and 3, promutuum. 
 
 (a) Bac. Ab. Authority, (C) ; Com. Dig. Attorney, (C. 8.) ; Co. Litt. 112 b. 
 (J) Story, Bailtn. § 204. 
 
 (c) 7 Ves. 276. 
 
 (d) Bac. Ab. Baron, etc. (E) ; Koper on H. & W. 09, 73,^^- 
 
 (e) Pothier, Mandat, n. 112. 
 
 (/) Nichols V. Fearron, 7 Pet. 109. 
 
438 OF THINGS. 
 
 No. 1078. Book 2, part 2, tit. 5, chap. 2, sec. 1, § 1. No. 1080. 
 
 SECTION 1. — OF GRATUITOUS LOAN FOR USE, OR COmmo- 
 
 datum. 
 
 1078. A loan for use is the grant of a thing, by one 
 of the parties to the other, to be used by the grantee 
 gratuitously for a limited time, and then to be specifi- 
 cally returned. («) This contract is called loan for use, 
 after the French jurists, who give it the name of Prtt 
 d, Usage. It is called, in the civil law, commodatum, 
 because the thing is to be restored in specie. (&) 
 
 He who delivers the thing to be used, is called the 
 lender; the other contracting party who receives the 
 thing to be used is called the borrower. 
 
 1079. This contract of loan for use much resem- 
 bles a gift, but it differs from it in this, that by the 
 loan for use the title to the property does not pass to 
 the borrower, as it does in the case of a gift, but only 
 the right to use the thing ; it is a gift of the use. The 
 loan for use somewhat resembles a loan for consump- 
 tion, which is called mutuum. They both include an 
 act of kindness on the part of the lender, and an obli- 
 gation on that of the borrower, which is to return the 
 thing or its equivalent ; but there is this difference, in 
 the loan for use the lender retains the title to the thing 
 lent, and it is to be returned itself in individuo. On 
 the contrary, in the loan for consumption, or mutuum, 
 the things loaned being of such a nature that they must 
 be destroyed by use, as grain, cider, money, and the 
 like, the title to the things lent vest in the borrower, 
 and he becomes the debtor to return others of the same 
 kind to the lender. 
 
 § 1. — Of the things lent and the use to be made of them. 
 
 1080. There must be a thing loaned and to be used 
 
 (a) Jones, Bailm. 118 ; Story, Bailm. § 219 ; Poth. h. t. in pr. ; Ayl. 
 Pand. 516; Inst. 3, 15, 2; Dig. liv. 13, t. 6, 1. 1, 17; Domat, liv. 1, t. 5, 
 s. 1, n. 1. '^ 
 
 (b) Coggs V. Bernard, Ld. Raym. 909, 913. 
 
OF PARTICULAR CONTRACTS. 439 
 
 No. 1081. Book 2, part 2, tit. 5, chap. 2, see. 1, j 2, 3. No. 1082. 
 
 for a certain purpose. The thing loaned may be used 
 in the way it has been accustomed to be, according 
 to its nature, or in any other way ; a horse which has 
 been used under the saddle may be used in a carriage, 
 if such is the contract. (a) But unless the intention of 
 the parties can be ascertained, the borrower would be 
 presumed to borrow an article for what it was made ; 
 if one borrowed a bed, and there was neither an express 
 contract as to its use, nor any circumstances to show 
 the intention of the parties, it would doubtless be the 
 duty of the borrower to use it in no other way than as 
 it was destined to be. 
 
 The things which are loaned must be personal pro- 
 perty, a loan for use cannot be made of real estate. (&) 
 It must be lawful to lend the thing loaned ; if Peter 
 were to lend to Paul a gun to enable him to commit a 
 robbery, the contract would be void.(c) 
 
 § 2. — The loan must be gratuitous. 
 
 1081. If the lender receive any compensation for the 
 loan, the contract becomes a hire of a thing ; and the 
 rights and obligations of the parties are changed. 
 
 § 3. — Of the rights of the borrower. 
 
 1082. In general, the borrower has the right to use 
 the thing borrowed, during the time and for the jjwr- 
 j90ses intended between the parties; the right to use 
 the thing bailed, is strictly confined to the use, ex- 
 pressed or implied, in the particular transaction, and, 
 by any excess, the borrower will make himself re- 
 sponsible, (c?) The loan is considered strictly personal, 
 unless from circumstances a dififerent intention may be 
 presumed. (e) 
 
 (a) Pothier, Pret a tJsage, n. 2. 
 (i/Coggs V. Bernard, Ld. Raym. 913. 
 
 (c) 6 Duverg. n. 32. 
 
 (d) Jones, Bailm. 58 ; Poth. Pret a Usage, n. 22 ; Ersk. liinc. Laws of 
 Scotl. B. 3, t. 1, s. 9. ^ 
 
 (e) 1 Mod. 210 ; S. C. 3 Salk. 271. 
 
440 OF THINGS. 
 
 No. 1083. Books, part 2, tit. 5, chap. 2, seel, 5 4> ait. 1,2, 3. No. 1086. 
 
 § 4. — Of the obligations of the borrower. 
 
 1083. Being the only person benefited by the con- 
 tract, the borrower is bound to take extraordinary care 
 of the thing borrowed ; to use it according to the in- 
 tentions of the lender ; to restore it in proper time ; 
 and to restore it in a proper condition. 
 
 Jlrt. 1. — Of the degree of care to he taken of the thing, 
 
 1084. The 'borrower is bound to use extraordinary 
 diligence, and is responsible for shght neglect, in rela- 
 tion to the thing loaned. If he has used the utmost 
 diligence, he is not answerable for the loss which may 
 have happened from inevitable accident, (a) The usual 
 expenses incurred in the use of the thing must be 
 borne by the borrower. If a horse be lent, the bor- 
 rower must pay for his keep during the time of the 
 bailment. 
 
 ,^rt. 2. — Of the use of the thing. 
 
 1085. The borrower is bound to use the thing ac- 
 cording to the condition of the loan; for any excess in 
 the nature, time, manner or quantity of the use, be- 
 yond what may be inferred to be within the intention 
 of the parties, the borrower will be responsible, not 
 only for any damages occasioned by the excess, but 
 also for losses or accidents, which could not be foreseen 
 nor guarded against ; the law in this respect making 
 him a general insurer to punish him for his breach of 
 the contract. (&) 
 
 Art. 3. — The borrower bound to return the thing loaned. 
 
 1086. One of the principal obhgations of the bor- 
 rower is to return to the lender the thing loaned, at the 
 time, in the place, and in the manner contemplated by 
 the contract, fc) A failure in any of these respects, 
 
 (a) Jones, Bailm. 65 ; 1 Dane's Ab. c. 17, a. 12 ; Dig. 44, 7, 1, 4 ; Poth. 
 Pret. a Usage, n. 48. 
 (S) Jones, laUm. 68, 69. 
 (c) Domat, 1, 5, 1, 11; Dig. 13, 6, 5, 17. 
 
OF PARTICULAR CONTRACTS. 441 
 
 No. 1087. Book 2, part 2, tit. 5, chap. 2 , sec. 2. No. 1089. 
 
 puts the borrower in default, and renders him liable 
 for future accidents, even without his fault; (a) unless, 
 indeed, he be justified by some cause which, in law, 
 will be looked upon as a sufficient excuse ; as, to pre- 
 vent the commission of a crime. (6) 
 
 Art, 4. — In what condition the thing loaned is to he returned. 
 
 1087. When the thing bailed has been deteriorated 
 without any default of the borrower, it may be re- 
 turned at the proper time and place by him, as it 
 happens then to be. And, on the other hand, if it has 
 increased in value while in the borrower's hands, the 
 lender is entitled to it, in its improved condition, and 
 he is also entitled to all the accessions. 
 
 Art. 5. — How the contract of loan far use is dissolved. 
 
 1088. This contract is dissolved by the death of 
 either party, except under special circumstances, or 
 by the change of the state of one of them ; as in the 
 case of a woman, by marriage. 
 
 SECTION 2. — OF GRATUITOUS LOAN FOR CONSUMPTION, OR 
 
 mutuum. 
 
 1089. Mutuum, or loan for consumption, is a contract 
 by which the owner of a personal chattel, of the kind 
 called fungibles,(c) delivers it to another by which it 
 is agreed that the latter shall consume the chattel, and 
 return at the time agreed upon, another chattel of the 
 same kind, number, measure or weight, to the former, 
 either gratuitously or for a consideration ; as if Peter 
 lends to Paul one bushel of wheat, .to be used by the 
 latter, so that it shall not be returned to Peter, but 
 instead of which Paul will return to Peter another 
 bushel of wheat of the same quality, at a time agreed 
 upon. 
 
 (a) Jones, Bailm. 70 ; Poth. Pret. a Usage, n. 60 ; Civil Code of Louis, 
 art. 2870; Ersk. Prin. of Laws of Scot. 3, 1, 9. 
 (J) Story on Bailm. ^ 256, 273. 
 (c) See Bouv. L. D. h. t. 
 
442 OF THINGS. 
 
 No. 1090. Book 2, part 2, tit. 5, chap. 2, sec. 8, 5 1, art. 1. No. 1093. 
 
 By fungible, in this definition, is meant any personal 
 chattel whatever, which consists in quantity, and is 
 regulated by number, weight and measure, such as 
 corn, wheat, oil, wine and money. (a) 
 
 The person who delivers the article to be used is 
 called the lender, the other is called the borrower. 
 , 1090, This contract differs essentially from a loan 
 for use, or commodatum. In the latter the title to the 
 property in the thing lent remains with the lender, 
 and, if it be destroyed without the fault or negligence 
 of the borrower, the loss will fall on the lender, the 
 rule res perit domino, applying in such case. On the 
 contrary, by the loan for consumption, or mutuum, the 
 title to the thing lent passes to the borrower, and in 
 case of loss, he must bear it. Mutuum bears a strong 
 resemblance to barter or exchange ; in a loan for con- 
 sumption the borrower agrees to exchange with the 
 lender a bushel of wheat, which he has not, but ex- 
 pects to obtain, for another bushel of wheat which the 
 lender now has and is ready to part with. 
 
 § 1. — Of £he nature of the contract of loan for consumption. 
 Jlrt. 1. — What constitutes the, essence of this contract. 
 
 1091. There must be, 1, something lent which is 
 consumed by use ; 2, that it be delivered to the bor- 
 rower; 3, that the property in the thing be transferred; 
 4, that the borrower agree to return as much in kind; 
 and, 5, and lastly, the parties agree on all these things. 
 
 1092.— 1. There cannot be a loan for consumption 
 unless: there be a thing loaned, which is to be consumed, 
 and it must be lent for that purpose. 
 
 1093. — 2. It is also of the essence of this contract 
 that the lender deliver to the borrower the thing lent. 
 But there are some exceptions to this rule ; if Peter 
 agrees to lend to Paul one thousand dollars, which 
 money has been already delivered by Peter to Paul on 
 
 (a) Ersk. Pr. Scotch Law, B. 3, t. 1, ^ 7 ; Poth. Pret de Cons. n. 25 i 
 1 BeU's Com. 225, n. 2 ; Story, Bailm. ^ 284. 
 
OF PARTICULAR CONTRACTS. 443 
 
 No. 1094. Book 2, part 2, tit. 5, chap. 2, eec. 2, } 1, art. 2. No. 1098. 
 
 a special deposit, the agreement will of itself change 
 the property; while it was on deposit it was at the 
 risk of the depositor, but the moment the contract is 
 turned to a loan, the money is at the risk of the bor- 
 rower, the title to it being then in him. 
 
 1094. — 3. The title to the thing loaned must be 
 transferred to the borrower; a transfer of the possession 
 without an intention of transferring the property, would 
 not oblige the borrower to return other property of the 
 same kind. It is sometimes difficult to say when the 
 transfer has been made so as to convey the title. (a) 
 
 1095.^ — 4. The borrower who receives the things 
 loaned must agree to return the same quantity, weight 
 or number, of the same kind of goods. If Peter were 
 to borrow of Paul one hundred bushels of com, and 
 agree at a future time to pay him in money, for the 
 corn, one himdred dollars, the contract would not be a 
 loan for consumption, but a sale ; and if, instead of 
 money, he agreed to return to him seventy-five 
 bushels of wheat, the contract would be a barter or an 
 exchange. 
 
 1096. — 5. As in all other contracts, the parties to 
 this must agree upon all the essential matters which 
 belong to it. 
 
 Art. 2. — Of the persons who may enter into this contract, and of 
 the things which must be lent. 
 
 1097. — 1. Like all other contracts, the parties to 
 this must have capacity to contract. 
 
 1098. — 2. The things which must form the object 
 of the contract must be such as are to be consumed by 
 use, which we have described to be fungible; such are 
 those which serve for food to man or to animals, as 
 wheat, com, oil, cider, wine, and the same may be 
 said of fire- wood. Again, there are others of which 
 
 (a) Ewing v. French, 1 Blackf.' 353; Hurd v. West, 752, 756, note; 
 Smith V, Clark, 21 Wend. 85 ; Seymour v. Brown, 19 John. 44 ; Slaughter 
 V. Green, 1 Rand. 8. 
 
444 OF THINGS. 
 
 No. 1099. Book 2, part 2, tit. 5, ehap. 2, sec. 3, } 1, art. 1. No. 1103. 
 
 there is no natural consumption, but one which is purely 
 civil, as the loan of a sum of money. All those things 
 which are consumed by the use made of them, are 
 known under the name of things qutz pondere, numero, 
 et mensurd constant; that is, things which are considered 
 rather as to a certain quantity of weight, number or 
 measure, than of individyals of which they are com- 
 posed. 
 
 § 2. — Of the obligations of the borrower. 
 
 1099. The contract of loan for consumption pro- 
 duces obligations only on one side, that of the borrower 
 to return to the lender goods of the same kind he has 
 borrowed, equal in number, weight or measure to those 
 borrowed. 
 
 SECTION 3. OF LOAN ON INTEREST AND OP USUET. 
 
 1100. When money is lent on interest, which is a 
 loan for consumption, the sum lent is called the prin- 
 cipal, and that which is to be paid for the use of it is 
 interest; when such interest exceeds the rate allowed 
 by law, it is called usury. 
 
 § 1. — Of interest of money. 
 
 1101. In the examination of the subject, it is pro- 
 posed to ascertain, 1, who is bdund to pay interest; 
 2, who is entitled to receive it ; 3, on what claim it 
 is allowed ; 4, what interest is allowed. 
 
 ^rt. 1. — Who are bound to pay interest. 
 
 1102. — 1. The contractor himself, who has agreed, 
 expressly or by implication, to pay interest, is of course 
 bound to do so. 
 
 1103. — 2. In many instances where there has been 
 no express loan, yet the party using the money is 
 required to pay interest. For example, executors, 
 administrators, assignees of bankrupts or insolvents, or 
 trustees, who have kept money an unreasonable length 
 
OF PARTICULAR CONTRACTS. 445 
 
 No. 1104. Book 2, part 2, tit. 5, chap. 2, sec. 3, § 1, art. 8, 3. No. 1107. 
 
 of time, and who have made it productive, or might 
 have done so, are chargeable with interest. (a) Again, 
 a tenant for life must pay interest on encumbrances on 
 the estate. (&) And revenue officers of the United 
 States are liable for interest frqm the time of receiving 
 the money. (c) A factor or agent, who does not, with 
 due diligence, remit money to his principal, is also 
 chargeable with interest. (tZ) 
 
 Art. 2. — To whom interest is allowed. 
 
 1104. — 1. The lender, either upon an express or 
 implied contract, is entitled to interest. 
 
 1105. — 2. Executors, administrators, and other 
 trustees, are entitled to interest when bona fide, and 
 for some beneficial purpose of the estates they repre- 
 sent, they advance their own money, (e) 
 
 Art. 3. — On what claims interest is allowed. 
 
 1106. — 1. Interest is allowed on express contracts; 
 when the debtor expressly undertakes to pay interest, 
 both he and his representatives are liable for it. 
 
 1107. — 2. It is chargeable on implied contracts, as 
 for money lent or lawfully laid out to another's use ; 
 for goods sojd and delivered, after the customary or 
 stipulated term of credit has expired ;(/) on bills and 
 notes, if payable at a future day, certain, after they 
 become due ; if payable on demand, after the demand 
 
 (a) Cox V. Wilcocks, 1 Binn. 194; Say's Ex'rs v. Barnes, 4 S. & R. 
 116 ; Dietrich v. Haft, 5Penn. St. R. 87. 
 Ih) 4 Ves. 33 ; 1 Vern. 404, note by Raithby. 
 
 (c) Commonwealth v. Lewis, 6 Sinn. 266. 
 
 (d) Crawford v. Willing, 4 Ball. 286. See Nesbit v. Lawson, 1 Kelly, 
 275. 
 
 (e) Dilworth v- Sinderling, 1 Binn. 488. 
 
 (/) Knox V. Jones, 2 Dall. 193 ; Breyfogle v. Beckley, 16 S. & R. 264. 
 Considerable difference exists in the several states of the Union as to the 
 right of charging interest on open accounts. In some of them, no interest 
 is allowed on such accounts, unless there has been a special agreement, or 
 the charge of interest is allowed by the course of trade. Nagle v. Chisolm, 
 Harper, 274 ; Skirving v. Stobo, 2 Bay, 233 ; Listard v. Graves, 3 Caines, 
 225 ; Temple v. Belding, 1 Root, 314 ; Van Beuren v. Van Gaasbeck, 4 
 Cowen, 496. 
 
446 OF THINGS. 
 
 No. 1108. Book 2, part 2, tit. 5, chap. 2, sec. 3, 4 1, art. 4. No. 1110. 
 
 has been made, for until then, the debtor is presumed 
 to have been ready at all times to discharge his obli- 
 gation ;(a) on an account stated, or other Uquidated 
 sum, whenever the debtor knows precisely what he is 
 to pay, and when he oughts to pay it : on money ob- 
 tained by fraud, or where it was wrongfully detained ;(&) 
 on money paid by mistake, or recovered on a void 
 execution, (c) 
 
 1108. When the claim is for unliquidated damages 
 and contested claims, sounding in damages, no interest 
 will be allowed. (rf) 
 
 ^rt. 4. — Of the quantum or amount of interest allowed. 
 1. During what time. 
 
 1109. In general, interest is allowed on all claims 
 and demands for money loaned, from the time it becomes 
 due, for then it is the duty of the debtor to pay it, 
 and the law imposes on him the obhgation of paying 
 the interest to the creditor, because he is presumed to 
 have made a profit out of the principal. 
 
 1110. But if the debtor is prevented from paying 
 it, by an express law, the interest is suspended, and he 
 is no longer chargeable with interest ; as, where the 
 debtor and creditor are citizens of two nations, at war 
 with each other, a law forbidding all intercourse with 
 the enemy, would furnish a strong ground for exone- 
 rating the debtor from the payment of the interest 
 during the war.(e) But the mere circumstance of war 
 existing between the two countries, without such pro- 
 hibition, will not stop the interest. (/) 
 
 Interest may also be suspended during the time 
 
 (a) Jacobs v. Adams, 1 Dall. 52. But see Collier v. Gray, 1 Overt. 110 ; 
 Camion v. Biggs, 1 McCord, 170 ; Patrick v. Clay, 4 Bibb, 246. 
 
 (b) 3 Cowen, 426 ; Keener v. Bank U. S., 2 Penn. St. R. 237. 
 
 (c) Winslow V. Hathaway, 1 Pick. 212 ; King v. Diehl, 9 S. & R. 409. 
 
 (d) Gilpins V. Consequa, 1 Pet. C. C. 85, 95 ; Willing v. Consequa, 1 
 Pet. C. C. 179 ; Spier v. Van Orden, 2 Penn. 652. 
 
 (e) Conn v. Penn, 1 Pet. C. C. 496, 524 ; Hoare v. Allen, 2 Dall. 102 ; 
 Foxcraft v. Galloway, 2 Dall. 132 ; Sims v. WiUing, 8 S. & R. 103. 
 
 (/) 1 Pet. C. C. 524. 
 
OF PARTICULAR CONTRACTS. 447 
 
 No. 1111. Book 2, part 2, tit. 5, chap. 2, sec. .3, M, art. 4. No. 1113. 
 
 when a pai-ty's accounts are before the court for exami- 
 nation; as, where a guardian or trustee's accounts are 
 before the court for confirmation. (a) 
 
 2. Of simple interest. 
 
 1111. By simple interest is meant the interest on 
 the principal of the sum lent only ; and no interest is 
 allowed on the interest which is due and unpaid. In 
 general, the courts will set their faces against adding 
 interest to the interest, as being hard, oppressive, and 
 tending to usury. (6) 
 
 3. Of compound interest. 
 
 1112. Compound interest is that which arises not 
 only from the principal, but also from the interest 
 which is due and unpaid. This is allowed in special 
 cases, in general where the debtor has been gu0,ty-of 
 some wrong or neglect. For example, when execu- 
 tors, administrators, or other trustees, convert trust 
 money to their own use, or employ it in business or 
 trade, they are chargeable with compound interest. (c) 
 Another example; where a partner has oveirdrawn the 
 partnership funds, and refuses, when called upon, to 
 account or to disclose the profits, recourse .will be had 
 to compound interest, as a suhstitute for the profits he 
 might be reasonably supposed to have made.((i) 
 
 When, after the interest has accrued, the parties 
 agree to turn it into principal, compound interest will 
 be allowed according to their agreement, (e) 
 
 4. Of foreign interest. 
 
 1113. It is a general rule, that the law of the place 
 
 (a) Dietrich v. Heft, 5 Penn. St. R. 87. 
 
 \h) 1 John. Oh. 14 ; Cam. & Norw. 361 ; Toll v. Hiller; 11 Paige, 228 ; 
 Von Homert v. Porter, 11 Met. 210. 
 
 (c) Sohieflfelin v. Stewart, 1 John. Oh. 620 ; Dunscomb v. Dunscomb, 1 
 John. Oh. 508. 
 
 (d) Stoughton v. Lynch, 1 John. Oh. 467 ; 2 John. Oh. 209. 
 
 (e) Connecticut v. Jackson, 1 John. Ch. 13 ; Barrow v. Rhinelander, 1 
 John. Ch. 550. See Bainbridge v. Wilcooks, Baldw. 536. 
 
448 OF THINGS. 
 
 No. 1114. Books, parts, tit. 5, chap. 2, sec. 3, § 1, art. 4. No. 1114. 
 
 where a contract is made, must govern; if valid there, 
 it is good everywhere, and if illegal there, it is illegal 
 everywhere else. (a) Loans made in a place, accord- 
 ingly, bear the interest of that place, unless payable 
 elsewhere. Thus, in a contract made in China, where 
 a jiote was given, payable eighteen months after date, 
 without any stipulation respecting interest, the court 
 allowed the Chinese interest of one per centum per 
 month from the expiration of the eighteen months. (&) 
 But when the contract is made at one place, and it is 
 to be performed at another, the interest is to be paid 
 according to the laws of the latter. (c) 
 
 5. Interest, how computed. 
 
 1114. In casting interest on debts which pay it, 
 upon which partial payments have been made, every 
 payment is to be applied first to pay the interest then 
 due. 
 
 When a partial payment exceeds the amount of the 
 interest due when it is made, it is correct to compute 
 the interest to the time of the first payment, add it to 
 the principal, and then subtract the payment ; when a 
 . second payment is made, add interest on the remainder 
 of the principal from the time of the first to that of the 
 second payment, then deduct the amount of the second 
 payment, and so from payment to payment, until 
 the whole shall be paid. But it must be remembered 
 that interest is not, in any case, to be turned into 
 principal. (cZ) 
 
 (a) Pearson v. Dwight, 2 Mass. 88, 89 ; Ersk. Inst. B. 3, t. 2, ^ 39—41 ; 
 Stoiy, Confl. of Laws, ^ 242. 
 
 (b) Archer v. Dunn, 2 Watts & Serg. 227, 264 ; Bodily v. Bellamy, 2 
 Burr. 1094 ; Foden «. Sharp, 4 John. 183 ; Mullen v. Morris, 2 Penn. St. 
 R. 85 ; Jaflfray v. Dennis, 2 Wash. 0. C. 253 ; Conqua v. Lauderbrun, 1 
 Wash. C. C. 521. 
 
 (c) Scofleld V. Day, 20 John. 102. See Montgomery v. Budge, 2 Dow & 
 CI. 297 ; De Wolf v. Johnson, 10 Wheat. 367 ; Bushby v. Camac, 4 Wash. 
 C. 0. 296 ; Davis v. Coleman, 7 Iredell, 424. 
 
 (d) Dean v. Williams, 17 Mass. 417 ; Penrose v. Hart, 1 Dall. 378 ; Spires 
 V. Hamot, 8 Watts & S. 18. In the case of Tracy v. WickofF, 1 Dall. 124, 
 McKean, C. J. , laid down the rule, that interest of money paid in before the 
 
OF PARTICULAR CONTRACTS. 449 
 
 No. 1115. Book 3, part 2, tit. 5, chap. 2, sec. 3, § 1, art. 4. No. 1115. 
 
 Where the law regulating interest, between the time 
 a note was given, and the day it becomes due, is 
 changed, and the note is payable with lawful interest, 
 it is evident the parties intended that interest should 
 be charged at the rate which was known when the 
 contract was entered into, and not at any other 
 rate, (a) 
 
 6. When interest shall be barred. 
 
 1115. When a debtor makes a tender of money to 
 a creditor for what is due to him, he is bound in case 
 the creditor shall refuse to receive the money to keep 
 it by him, and to pay the creditor when he shall change 
 his mind and offer to accept it. Under these circum- 
 stances it would be hard to make the debtor pay 
 
 time when due, must be deducted from the whole sum due at the time ap- 
 pointed by the instrument ; as, on a bond of one hundred dollars, payable 
 in one year with interest ; if, at the end of six months, fifty dollars be paid, 
 then the payment should not be apportioned, part to the principal and part 
 to the interest, but, at the end of the year, interest should be charged on 
 the whole sum, and the obligor should receive credit for the fifty dollars, 
 and interest upon this sum for six months. This mode of computation was, 
 however, declared to be illegal, both on principle and authority, and Tracy 
 V. Wikoff, was overruled. In Spires v. Hamet, 8 Watts & Serg. 18, the 
 court say, " Tracy v. Wikoff has long since ceased to be authority. It has 
 been directly overruled in Primrose v. Hart, (1 Dall. 378) ; The Common- 
 wealth V. Miller, (8 Serg. & Rawle, 458) ; and Smith v. Shaw, (2 Wash. 
 C. C. R. 167), in accordance with all the English decisions since Chase v. 
 Box, (2 Freem. 261), which was the first of them, and decided in 1702. 
 
 " The truth is, Tracy v. Wikoff is as unfounded in principle as it is in 
 authority ; for, calculating interest on payments, the debt would, in course 
 of time, be discharged, both principal and interest, by payment of interest 
 only. The rule established by all other decisions is, that a partial payment 
 is to be applied to the interest in the first place, and in the second to the 
 principal. The reason is, that though interest may be reserved to be paid 
 yearly, half-yearly or quarterly, it accrues from day to day, and not like 
 rent from year to year. A creditor may refuse to receive the principal be- 
 fore it is due, or a part of it when due, except on his own terms ; and were 
 he to receive it as a payment bearing interest, it would, in effect, be a loan. 
 Bat if he receive it unconditionally, the residue applied to the principal, 
 after payment of the interest, stops interest on the principal pro tanto. The 
 last of the indorsements on this bond purports that the payment was re- 
 ceived ' on account of principal and interest,' which is no more than the law 
 would imply. The jury, therefore, were directed to adopt an erroneous 
 rule of computation." See Com. v. Miller, 8 S. & E. 458 ; Smiths. Shaw, 
 2 Wash. C. C. 167 ; Fay v. Bradley, 1 Pick. 194 ; Kissam v. Burrall, Kir- 
 by, 326. 
 
 (a) Lee «. Davis, 1 A. K. Marsh, 397. 
 
 Vol,. I. 29 
 
450 OF THINGS. 
 
 No. 1116. Book2, part 2, tit. 5, chap. 2, sec. 3, §2. No. 1116. 
 
 interest for money whicli he could not use. The law- 
 does not allow such injustice. When all the money- 
 due is tendered by the debtor to the creditor, and it is 
 refused, the interest ceases. But in this case, the 
 debtor must at all times be ready to pay the creditor 
 on demand. (a) 
 
 Whenever the law prohibits the payment of the 
 principal, interest is not recoverable during the prohi- 
 bition; for where the debtor may have the money 
 ready to pay his debt, as every one is presumed to be 
 able to fulfil his contract, he cannot be said to be in 
 default. (&) 
 
 § 2. — Of usury. 
 
 1116. Usury, as already observed, is the illegal 
 profit which is required and received by the lender of 
 a sum of money from the borrower, for its use. In a 
 more general sense it is the receipt of any profit what- 
 ever for the use of money. Usura est quidquid ultra 
 sortem mutuatam exigitur. It will be used in this sec- 
 tion in the first of these senses. 
 
 The laws of the several states on the subject of 
 usury vary not only as to the amount of interest 
 which may be lawfully received, but also as to the 
 provisions which operate on the validity of the con- 
 tract ; in some of them the usurious contract is void, 
 in others it may be enforced, but not more than legal 
 interest can be recovered ; in some, after the payment 
 of the usury, an action qui tarn is given for the 
 recovery of a penalty; in others another remedy is 
 given, (c) 
 
 In general to make a usurious contract there must 
 be, 1, a loan, express or implied; 2, an agreement 
 that the principal shall be returned at all events ; 3, 
 not only that the principal shall be returned, but that 
 
 (a) Dent v. Dunn, 3 Campb: 296 ; Rose v. Brown, Kirby, 293. 
 (J) Hoare v. Allen, 2 Dall. 102 ; Conn v. Penn, 1 Peters, 0. C. 524. 
 (c) See Bouv. L. D. Interest, for the rates of interest charged in the 
 several states of the Union. 
 
OF PARTICULAR CONTRACTS. 451 
 
 No. 1117. Book 2, part 2, tit, 5, chap. 2, sec. 3, 4 2, art. 1. No. 1118. 
 
 for such loan a greater interest than that fixed by law 
 shall be paid ;(«) and, 4, there must be an intention to 
 violate the law. These will be examined separately, 
 and in a 5th article will be considered the effect of 
 making and completing a usurious contract. 
 
 •Art. 1. — Of the loan or forbearance. 
 
 1117. There must be a loan in contemplation of the 
 parties. It is not, however, necessary that there be a 
 formal and explicit contract; it is sufficient if the 
 secret intention of the parties has been to make a usu- 
 rious bargain, however it may have been disguised 
 under the false appearance of another contract. These 
 contracts, which have been adopted in such cases, for 
 the purpose of covering and disguising a loan, which 
 the parties intended to make, are, in law, considered 
 as loans, and the profit or benefit which the lender 
 derives from them, as usury. 
 
 1118. The illegal contract of sale called mohatra is 
 an example : in this contract, Peter having a sum of 
 money which he wishes to lend upon usury, sells an 
 article of property, for example, a horse, to Paul for 
 two hundred dollars, upon a credit of one year, and 
 takes the purchaser's note for the amount; imme- 
 diately after the sale, he buys the horse back for one 
 hundred and fifty dollars, which he pays down in cash ; 
 in this case, it is clear, that Paul will at the end of one 
 year be bound by the contract to pay fifty dollars for 
 the use of one hundred and fifty dollars, which is clearly 
 usurious. In this case the law considers the sale as a 
 simulated contract, and that the transaction was a 
 usurious loan.(&) 
 
 (a) Lloyd v. Scott, 4 Pet. 205. 
 
 {b) Poth. Vente, n. 30 ; Poth. De I'Usure, n. 88 ; 1 Duverg. n. 44; Story 
 on Sales, § 517. See Lloyd v. Scott, 4 Pet. 205 ; Moore v. Battie, Ambl. 
 371 ; Astor v. Price, 7 Mart. N. S. 409 ; Bac. Ab. Usury, (C), Bouv. ed.; 
 Lowe V. Waller, Dougl. 736 ; Phillips v. Kirkpatrick, Add. 126 ; Ruling v. 
 Drexell, 7 Watts, 126, 129 ; Shanks v. Kennedy, A. K. Marsh. 65 ; Doug- 
 lass V. McChesney, 2 Rand. 109 ; Evans v. Negley, 13 S. & R. 218 ; McGill 
 V. Ware, 4 Scam. 21 ; Bouv. L. D. Mohatra. 
 
OF THINGS. 
 
 Book 2, part 2, tit. 5, chap. 2, eec. 3, } 2, art. 2. 
 
 1119. It may be stated as a general rule, that what- 
 ever be the form of the contract, if the intention of the 
 parties were to make a usurious agreement, the con- 
 tract will be tainted by such illegal intention. (a) But 
 if in appearance the contract appear to be usurious, 
 when in fact it was not intended to make it so, and 
 such appearance was occasioned by a mistake as to a 
 fact, it will not be usurious ; as where a greater amount 
 than that allowed by law, was charged by a mere mis- 
 calculation. (&) An error as to a matter of law, how- 
 ever, will not excuse. (c) 
 
 1120. When a bond or note, not made for the pur- 
 pose of being discounted at a greater rate than legal 
 interest, is offered for sale, it may be purchased at any 
 price the parties to it may agree ijpon, when sold by 
 a third party ; for, in that case, the maker will not be 
 required to pay more than he would have been bound 
 to have paid, if it had remained in the hands of the 
 indorser who sold it; and, again, the contract was 
 valid when it was made, and it will not be tainted by 
 any future usurious bargain. (f^) 
 
 But when the original contract is usurious, it will 
 remain so, although there may have been a substitution 
 of a new contract clear of the taint. (e) 
 
 An agreement to forbear to sue, where a debt is 
 due, upon condition that the debtor will pay usurious 
 interest, is sufficient, and it will have the same effect 
 as if a loan had been made.(/) 
 
 Art. 2. — Of the agreement to return the principal at all events. 
 
 1121. There must be a contract for the return of 
 
 (a) Childers v. Deane, 4 Rand. 406 ; Str.ith v. Beach, 3 Day, 268. 
 
 lb) Maine Bank v. Butts, 9 Mass. 49 ; Bank of Utica v. Smalley, 2 Cowen, 
 770 ; N. Y. Fire Ins. Co. v. Ely, 2 Cowen, 678. 
 
 (c) 9 Mass. 49. 
 
 {d) Wycoff V. Longhead, 2 Dall. 92 ; Musgrove v. Gibbs, 1 Dall. 216 ; 
 Loyd V. Keach, 2 Conn. 175 ; King v. Johnson, 3 McCord, 365 ; Churchill 
 V. Sutor, 4 Mass. 156 : Knights v Putnam, 3 Pick. 184 ; 9 Pet. 103. 
 
 (e) Chamberlain v. McClurg, 8 W. & S. 31 : Bridge v. Hubbard, 15 Mass. 
 96. But see Kilboum «. Bradley, 3 Day, 356. 
 
 (/) Carter v. Brand, Cam. & Nor. 28. 
 
OF PARTICULAR CONTRACTS. 453 
 
 No. 1122. Books, part 2, tit. 5, chap. 2, sec. 3, } 2, art. 3. No. 1122. 
 
 the money at dl events; for if the return of the princi- 
 pal with interest, or of the principal only, depend upon 
 a contingency, there will be no usury ; but if the con- 
 tingency extend only to interest, and the principal be 
 beyond the reach of hazard, the lender will be guilty 
 of usury, if he receive interest beyond the amount 
 allowed by law. In the contracts of insurance and of 
 bottomry, the principal is put to hazard, and the par- 
 ties are not therefore amenable to the laws of usury. 
 
 Art. 3. — Of the agreement to pay usury. 
 
 1122. To constitute usury there must be an agree- 
 ment, express or implied, to 'pay unlawful interest, for 
 when one of the parties intends and agrees to pay it, 
 and the other does not agree to receive it, and in this 
 respect thei^e is a misunderstanding, the contract is not 
 usurious, (a) 
 
 Whenever a certain gain is reserved to the lender 
 by the agreement, besides the interest, the contract is 
 usurious. (&) But this gain must be such as arises solely 
 from the loan, for there are numerous instances where 
 additional compensation has been allowed besides the 
 lawful interest, and yet the contract has been holden 
 not to be usurious ; for example, a reasonable commis- 
 sion beyond legal interest, for extra incidental charges, 
 as for agency in remitting bills for acceptance and pay- 
 ment, (c) But it must clearly appear that the addi- 
 tional compensation is not taken for interest. (J) 
 
 In order to constitute the offence of usury, there 
 must be a loan of money or forbearance to demand the 
 payment of money, and an agreement that for such 
 loan or forbearance, the borrower in the one instance, 
 and the debtor in the other, will pay usurious interest. 
 
 (a) Marsh v. Martindale, 3 Bos. & Pull. 154. 
 
 Vb) Philip w. Kirkpatrick, Add. 126 ; Delano v. Rood, 1 Gilman, 690. 
 
 (c) Huling V. Drexell, 7 Watts, 126, 129 : Gray v. Brackenridge, 2 Penns. 
 75 ; Hutchinson v. Hosmar, 2 Conn. 341 ; De Forest v. Strong, 8 Conn. 
 518. 
 
 {i) Large «. Passmore, 5 S. & R. 135 ; Steele v. Whipple, 21 Wend. 103. 
 
454 OF THINGS. 
 
 No. 1123. Book 2, part 2, tit. 5, chap. 2, sec. 3, J 2, art. 4, 5. No. 1124. 
 
 When a man is indebted to another in a sum of money, 
 payable at a future time, and he is desirous to pay his 
 debt by anticipation, it has been questioned whether he 
 could in foro conscientice, deduct a greater sum from his 
 debt than the legal interest for the time the term has 
 to run,(a) but there can be no question that he may, 
 both at law and in equity, take a greater discount than 
 simple interest. (&) 
 
 The agreement to pay the usurious interest must be 
 positive, for if it be merely conditional and relievable 
 in equity, it will not make the contract usurious, as an 
 agreement to pay a larger sum at a future day, upon 
 the non-payment of the sum agreed upon at a prior 
 day.(c) 
 
 ^rt. 4. — Of the intention to violate the law. 
 
 1123. The whole of the three constituent principles 
 of usury must concur in the contract, that is, there 
 must be a loan of money, or forbearance to demand 
 money due ; an agreement that the principal shall be 
 secured at all events, and an agreement to pay usury, 
 or the payment of it. But although these may all 
 concur, yet the usury is not complete when there was 
 no intention to commit it, and unless they intended to 
 violate the usury laws, the contract will not be 
 usurious, ((f) 
 
 .^rt. 5. — Of the effect of a usurious contract. 
 
 1124. In some states the simple making of a 
 usurious contract renders it void^ and subjects the 
 offending parties to the penalty imposed by the statute ; 
 in some others the contract is not void, but it cannot 
 be enforced beyond the recovery of the principal sum 
 lent, and the lawful interest on it; and until the money 
 
 (a) Poth. De I'Usure, n. 128, 129. 
 
 {b) Barclay v. Walmsley, 4 East, 55 : S. C. 5 Esp. 11. 
 
 (c) Groves v. Graves, 1 Wash. 1 ; Winslow v. Dawson, 1 Wash. 119. 
 
 (d) Chiders v. Dean, 4 Band. 406 ; Smith v. Roach, 3 Day, 268 ; Duvall 
 V. Farmers' Bank, 7 Gill & John. 44. 
 
OF PARTICULAR CONTRACTS. 455 
 
 No. lias . Book 2, part 2, tit. 5, chap. 2, aeo. 4. No. 1126. 
 
 has been paid back, with the unlawful interest, the 
 borrower has no remedy against the lender. In some 
 states the remedy is by an action qui tarn to recover 
 the penalty, and in others the proceedings may be by 
 indictment. 
 
 SECTION 4. — OF THE QUASI CONTRACT CALLED PROMUTUUM. 
 
 1125. Before closing the examination of that class 
 of bailments which are wholly for the benefit of the 
 bailee, it will be proper to take a short view of the 
 contract, which in the civil law is called promutuum, so 
 called because it has much resemblance to a mutuum. 
 
 Promutuum is a quasi contract, by which he who re- 
 ceives a certain sum of money, or a certain quantity of 
 things fungible, which have been paid to him by mis- 
 take, contracts toward him who so paid by mistake, 
 the obligation to return him as much. 
 
 1126. The principal resemblance heivf^en promutuum 
 and mutuum are the following : 
 
 1. In both there must be a delivery of a certain 
 sum of money, or of a certain quantity of things 
 fungible. 
 
 2. The property in the thing must be transferred to 
 the bailee, or the bailee must have consumed it, in 
 order to make the contract like mutuum. 
 
 3. There is a perfect resemblance in the obligations 
 which arise from both contracts, the bailee must return 
 as much as he has received. 
 
 It is in general by a wrongful payment that the 
 quasi contract of promutuum arises. And, in this, the 
 contracts differ essentially from each other. Mutuum 
 is a contract to which both parties must have assented 
 and intended to fulfil, when the engagement was 
 formed ; a promutuum, on the contrary, was not in- 
 tended by either of the parties to form any contract 
 whatever, for when Peter pays PauJ the amount of a 
 debt, they both intend, one to pay and the other to 
 
456 OF THINGS. 
 
 No. 1127. Book 2, part 2, tit. 5, chap. 3. No. 1129. 
 
 receive, only what is justly due ; and do not intend to 
 enter into any obligations. 
 
 1127. In the common law a rule has been adopted 
 which, although it seems to be at variance with the 
 facts, appears to answer an excellent purpose. It is 
 true, that though generally speaking, there is no con- 
 tract between the parties wjien one pays a debt to 
 another by mistake, that the latter will return to the 
 former any part of what is so paid, yet the common 
 law presumes that no one desires to enrich himself at 
 the expense of another, and therefore raises an implied 
 assumpsit by which the receiver is presumed to have 
 assumed to return such surplus, and in an action of 
 assumpsit for money had and received, such money, 
 paid by mistake, may be recovered. (a) 
 
 1128. Here terminate our labors on the law of bail- 
 ment. It must have been perceived that the common 
 law has drawn from that inexhaustible source of sound 
 legal learning, the civil law, all the principal rules 
 which govern the subject, and some may have been 
 introduced which are not to be supported by American 
 or English decisions, and yet, if the common law de- 
 serves to be called a science, it could scarcely repudiate 
 them. 
 
 CHAPTER m.— OF BILLS OF EXCHANGE. 
 
 1129. This is one of the most important instru- 
 ments used in commerce, both on account of the 
 amount of property which passes by it, and with regard 
 to its general convenience in transferring property 
 from one place to another. A bill of exchange is 
 defined to be an open letter of request from, and order 
 by one or more persons on one or more others, to pay 
 to some third person or persons, a sum of money 
 
 (a) Bogart v. Kevins, 6 S. & R. 369 ; Irvine v. Hanlon, 10 S. & R. 219 ; 
 Morris V. Tarin, 1 Dall. 148 ; Wright v. Butler, 6 Wend. 290 ; Eddy v. 
 Smith, 13 Wend. 488; Ogden v. Saunders, 12 Wheat. 341. Vide ante, n. 
 907, note. 
 
OF PARTICULAR CONTRACTS. 457 
 
 No. 1130. Books, part 2, tit. 5, chap. 3, sec. 1,2, i 1. No. 1132. 
 
 therein mentioned, on demand, or at a future time 
 therein specified. 
 
 The subject will be considered with reference, 1, to 
 the parties to the bill ; and 2, to its form. 
 
 SECTION 1. OF THE PARTIES TO A BILL OP EXCHANGE. 
 
 1130. The parties are, 1, the drawer, or he who 
 makes the order; 2, the drawee, or the person to whom 
 it is addressed ; 3, the acceptor, or he who undertakes 
 to pay it; 4, the payee, or the party to whom, or in 
 whose favor the bill is made ; 5, the indorser, or he 
 who writes his name on the back of the bill, for the 
 purpose of becoming a surety to pay it, on condition 
 that the parties before him shall not do so, and also on 
 condition that notice of such non-payment or non- 
 acceptance, shall be given to him according to law ; 6, 
 the indorsee, or he to whom the bill is transferred by 
 the indorsement ; and, 7, the holder, who is, in general, 
 one of the parties who is in possession of the bill, and 
 entitled to receive the money therein mentioned. 
 
 Some of the parties are sometimes fictitious persons. 
 When a bill is made to a fictitious person, and in- 
 dorsed in the name of a fictitious payee, it is in effect 
 a bill to bearer, and a bona fide holder, ignorant of the 
 fact, when he took the bill, may recover on it, against 
 all prior parties, who were privy to the transaction. (a) 
 When the drawer and payee are both fictitious persons, 
 the acceptor is held liable to a bona fide holder. 
 
 SECTION 2. OF THE FORM OF A BILL OF EXCHANGE. 
 
 1131. In considering the form, we will take a view, 
 1, of the general requisites of such a bill ; and, 2, of 
 the particular requisites. 
 
 § 1. — Of the general requisites. 
 
 1132. The general requisites of a bill are the fol- 
 lowing : 
 
 (a) 2 H. Bl. 178, 288 ; 3 T. K. 174, 182, 481 ; 19 Ves. 311. 
 
458 OF THINGS. 
 
 No. 1133. Book 2, part 2, tit. 5, chap. 3, sec. 2, J 2. No. 1133. 
 
 1. That it be in writing. 
 
 2. That it be for the payment of money, and not 
 for the payment of merchandise, or of other things 
 than such as are considered as money. An order 
 payable in funds " current in the city of New York," 
 was held to be payable in gold and silver or their 
 equivalent, and therefore good as a bill of exchange. («) 
 But in Missouri, a bill payable in "currency," was 
 held not to be a good bill of exchange. (6) 
 
 3. That the money be payable at all events, not 
 depending on any contingency, either with regard to 
 the fund out of which payment is to be made, or the 
 parties by or to whom payment is to be made.(c) 
 
 § 2. — Of the particular requisites of a bill. 
 
 1133. No particular form or set of words need be 
 adopted. An order "to deliver money," or a promise 
 that " A B shall receive money," or a promise "to be 
 accountable" or " responsible" for it, have been se- 
 verally held to be sufficient for a bill or promissory 
 note. The several parts of a bill of exchange are the 
 following : 
 
 1. That it be properly dated as to place. 
 
 2. That it be properly dated as to time of making. 
 The time when the bill becomes due is generally regu- 
 lated by the time when it was made, as " sixty days 
 after date;" the date of the instrument ought therefore 
 to be clearly expressed. 
 
 3. The amount of the sum of money which is to be 
 paid ; the superscription of the sum for which the bill 
 is payable is not indispensable, but if the sum be not 
 expressed in the body of the bill, the superscription 
 will aid the omission.(c?) 
 
 (a) Lacy v. Holbrook, 4 Ala. 88 ; Carter v. Penn, 4 Ala. 140. 
 h) Farwell v. Kennett, 7 Mis. 595 ; Williams v. Mosely, 2 Plor. R. 304, 
 331. 
 
 (c) Kuox V. Reeside, 1 Miles, 294 ; Jolliffe v. Higgins, 6 Munf. 3. 
 
 (d) 2 East, P. 0. 951. 
 
OF PARTICULAR CONTRACTS. 459 
 
 No. 1133. Book 2, part 2, tit. 5, chap. 3, sec. 2, § 2. No. 1133. 
 
 4. The time of payment ought to be expressed in 
 the bill ; if no time be mentioned, it is payable on de- 
 mand, (a) 
 
 5. The bill ought to mention a place of payment, 
 either in the body or superscription, but it is not es- 
 sential, and it is the common practice for the drawer 
 merely to write the address of the drawee, without 
 pointing out the place of payment : in such case the 
 bill is considered as payable, and to be presented at 
 the residence of the drawee, or to him personally any 
 where. It is at the option of the drawer whether or 
 not to prescribe a particular place of payment, and 
 make the payment there a part of the contract. The 
 drawee, unless restricted by the drawer, may also fix 
 a place of payment by his acceptance. 
 
 6. The bill should contain an order or request to 
 pay, and that it must be a matter of right, but still 
 the drawer may use a polite term, as please pay. The 
 word pay is not indispensable, deliver is its equiva- 
 lent. (6) 
 
 7. It ought to specify to whom it is to be paid.(c) 
 When the name of the payee is in blank, and the bill 
 has been negotiated by indorsement, the holder may 
 fill the blank with his own name. Sometimes it is 
 made payable to bearer, and then it is assignable by 
 delivery. 
 
 8. It must be payable to order, so as to give it 
 negotiability, or there must be other operative and 
 equivalent words of transfer. When it is intended 
 not to make it negotiable, these words need not be 
 used, and the instrument will nevertheless be valid as 
 a biU of exchange. 
 
 9. The sum for which the bill is drawn, must be 
 clearly expressed in the body of the instrument, in 
 writing at length. The sum must be certain and 
 
 (a) Field v. Nickerson, 3 Mass. 131 ; Connor v. Harrison, 2 McCord, 
 246 ; Hoxton v. Bishop, 3 Wend. 13. 
 (J) Ld. Raym. 1397. 
 (c) 2 Pardes. N. 338; 1 H. Bl. 608. 
 
460 OF THINGS. 
 
 No. 1133. Book 2, part 2, tit, 5, chap. 3, sec. 2, § 2. No. 1133. 
 
 not contingent. It may be in the money of any 
 country. 
 
 10. It is usual to insert the words value received, 
 but it is implied that every bill and indorsement has 
 been made for value received, as much as if it had 
 been expressed in totidem verbis. (a) 
 
 11. When the drawer of the bill is debtor to the 
 drawee, it is usual to insert in the bill these words, 
 "and put it to my account;" but when the drawee is 
 debtor to the drawer, then he inserts these words, 
 " and put it to your account ;" and, sometimes, when 
 a third person is debtor to the drawee, it may be ex- 
 pressed thus, " and put it to the account of A B." 
 But these words are altogether unnecessary. 
 
 12. When the drawer is desirous to inform the 
 drawee that he has drawn the bill, he inserts the 
 words " as per advice;" but when he wishes the bill 
 paid without any advice from him, he writes "without 
 further advice." In the former case the drawee is not 
 authorized to pay the bill till he has received advice ; 
 in the latter he may. 
 
 13. The drawer should subscribe the bill. 
 
 14. It should be addressed to the drawee by his 
 Christian name and surname, as, Benjamin Franklin, 
 or in the name of the firm, as. Smith, Frankhn & Co. 
 
 15. The place of payment should be stated in the 
 bill. 
 
 16. The drawer of a foreign bill may, as a matter 
 of precaution, and to save expenses, require the holder 
 to apply to a third person, named in the bill for that 
 purpose, when the drawee refuses to accept the bill. 
 This requisition is usually in these words, in a corner, 
 under the drawee's address, "Au besoin chez Messieurs 
 
 at ," or in other words, "In case of need, 
 
 apply to Messrs. at 
 
 17. A clause is sometimes introduced in the bill, 
 that in case it should be dishonored, it may be returned 
 
 (a) BeDJamin v. Pillman, 2 McLean, 213. 
 
OF PARTICULAR CONTRACTS. 461 
 
 No. 1134. Books, part 2, tit. 5, chap. 3, sec. 2, §3, art. 1,2. No. 1136. 
 
 without expense or protest, by putting the words, 
 subscribed by himself, " sans frais," or " retour sans 
 protet." 
 
 18. The drawer may limit the amount of damages 
 by making a memorandum in the bill, that they shall 
 be a definite sum, as for example, " In case of non- 
 acceptance or non-payment, reexchange and expenses 
 not to exceed dollars." 
 
 19. Foreign bills of exchange consist generally of 
 several parts ; a party who has engaged to dehver a 
 foreign bill, is bound to deliver as many parts as may 
 be reasonably requested ; the common practice is to 
 deliver three parts. The several parts of a bill are 
 called a set; each part should contain the condition 
 that it should be paid, if the others remain unpaid. 
 The whole set make but one bill. (a) 
 
 § 3. — Of tte different kinds of bills of exchange. 
 
 1134. Bills of exchange are either foreign or inland. 
 
 ^rt. 1. — Of foreign bills of exchange. 
 
 1135. A bill is foreign when it is drawn by a per- 
 son out t)f, on another in the United States, or vice 
 versd; or by a person in a foreign country, on another 
 in another foreign country; or by a person in one 
 state, on another person in another of the United 
 States. (&) 
 
 ^rt. 2. — Of inland bills of exchange. 
 
 1136. An inland bill is one drawn by a person in 
 one state, on another person in the same state. 
 
 The principal difference between a foreign and an 
 inland bill, is, that the former must be protested in 
 order to hold the drawer and indorsers bound, both 
 
 (a) Ingraham v. Gibbs, 2 Dall. 134 ; Diakin v. Cranston, 7 John. 442 ; 
 Miller v. Hackley, Anthon, 68. 
 
 lb) Buokner v. Finley, 2 Pet. 586 ; Halliday v. McDougal, 20 Wend. 81 ; 
 S. 0. 22 Wend. 264.; Warren v. Coombs, 2 App. 139; Phcenix Bank v. 
 Hussey, 12 Pick. 483. But see Miller v. Hoekley, 5 John. 375. 
 
462 OF THINGS. 
 
 No. 1137. Book 2, part 2, tit. 5, chap. 3, sec. 2, ^ 4, art. 1. No. 1138. 
 
 for non-acceptance and non-payment, and in the latter 
 they need not ; a notice of dishonor being sufficient in 
 such case. Whether protest of a foreign bill for non- 
 acceptance is indispensable, according to the English 
 rule, or whether a protest for non-payment will be 
 sufficient, seems not to be a settled question. (a) 
 
 § 4. — Of the indc&sement. 
 
 1137. By indorsement is understood, in its most 
 extensive sense, what is written on the back of an 
 instrument of writing, and having relation to it ; as, 
 a receipt or acquittance on a bond; an assignment on 
 a promissory note. But in the sense this word is used 
 in relation to a bill of exchange or promifssory note, 
 payable to order, it is the writing of one's name on 
 the back of such bill or note, with an intent to become 
 a party to it, and to be responsible for it, on certain 
 conditions. It will be proper to consider, 1, the form; 
 and, 2, the effect of an indorsement. 
 
 ^rt. 1 Of the form of an indorsement. 
 
 1138. An indorsement may be in full, in blank, re- 
 strictive, conditional, or qualified. 
 
 1 . It is in full, when mention is made of the name 
 of the indorsee ; as, " pay to A B, (the indorsee,) C 
 D," (the indorser.) 
 
 2. An indorsement is in blank, when the name of 
 the indorsee is not mentioned, and the indorser simply 
 writes his name, " C D."(&) But a writing or assign- 
 ment on the face of the note or bill, would, however, 
 be considered to have the force and effect of an indorse- 
 ment. (c) When the indorsement is once made in blank, 
 the negotiability of the bUl cannot be restrained by 
 any special indorsement of a subsequent holder, ((?) be- 
 
 (o) 3 Kent, Com. 95. 
 
 lb) Chit, on Bills, 170 ; 13 S. & R. 315 ; Dugan v. TJ. S., 3 Wheat. 183. 
 (c) 18 East, 12. 
 
 {d) Smith V. Clarke, Peake, 225 ; S. 0. 1 Esp. 180 ; Peacock v. Rohdes, 
 2 Dougl. 611 ; Anon. 12 Mod. 845. 
 
OF PARTICULAR CONTRACTS. 463 
 
 No. 1139. Book 2, part 2, tit. 5, chap. 3, sec. 8, § 4, art. 2. No. 1140. 
 
 cause when once a bill has been so indorsed, the holder 
 may strike out all the subsequent indorsements, whe- 
 ther special or not, and he may then recover as the 
 indorsee of the payee. 
 
 3. A restrictive indorsement is one which confines 
 the negotiability of the bill, by using express words to 
 that effect, as by indorsing it " payable to A B only," 
 or by using other words clearly demonstrating his 
 intention so to do. (a) 
 
 4. A conditional assignment is one which depends 
 for its validity upon the performance of a condition. 
 
 5. A qualified indorsement, which indeed wants one 
 of the quahties of a regular indorsement, namely, the 
 conditional responsibility of the indorser, is a transfer 
 of the bill or note to the indorsee, (6) but without any 
 liability to the indorser ; the words usually employed 
 for this purpose are, sans recours, without recourse. (c) 
 
 But although these words will exempt the indorser 
 from all responsibility on the contract, they do not 
 relieve him from the responsibility which he incurs, 
 if the instrument he passes has been forged, (c?) or 
 stolen, (e) 
 
 Art. 2. — Of the effect of the indorsement. 
 
 1139. The effect of a regular indorsement is differ- 
 ent as it affects, 1, the indorser and indorsee ; 2, the 
 indorser and the acceptor ; 3, the indorser and future 
 parties to the instrument. 
 
 1140. — 1. An indorsement is sometimes an original 
 engagement, as, when a man draws a bill payable to 
 his own order, and indorses it. In general, however, 
 it operates only as an assignment, as, when the bill is 
 perfect and the payee indorses it over to a third 
 
 (a) Brown v. Jackson, 1 Wash. C. 0. 512 ; Drew v. Jaoock, 2 Murph. 
 138. 
 
 [h) Epler V. Funk, 8 Penn. St. R. 468. 
 
 (c) Chit, on Bills, 179. 
 
 (d) Oharnley v. Dulles, 8 W. & S. 353; Frazer v. D'lnvilliers, 2 Penn. 
 St. R. 200. 
 
 (e) 2 Penn. St. R. 200. 
 
464 OF THINGS. 
 
 No. 1141. Books, parts, tit. S, chap. 3, sec. 2, 5 4i art- 2. No. 1142. 
 
 person. Considered as an assigment, it carries with 
 it all the rights which the indorsee had, and, unless 
 qualified, a guarantee of the solvency of the previous 
 parties. (a) This guarantee is, however, upon the im- 
 plied condition that the holder will use due dihgence 
 in making a demand of payment from the acceptor, 
 and give to the indorser noticp of non-acceptance or 
 non-payment. 
 
 114.1. — 2. As between the indorsee and the acceptor, 
 the indorsement has the eflfect of giving to the former 
 all the rights which the indorser had against the ac- 
 ceptor, and all other parties liable on the bill, and it 
 is not required that the acceptor, or other party, should 
 signify his consent or knowledge of the indorsement, 
 and if made before the bill or note becomes due, it 
 conveys all these rights without any set off, as between 
 the antecedent parties. (&) Being thus fully invested 
 with all the rights in the bill, the indorsee may him- 
 self indorse it to another, when he becomes himself 
 responsible to all future parties as an indorser, as the 
 others were to him. 
 
 1142. — 3. Unless his indorsement is qualified, the 
 indorser becomes responsible to all future parties to 
 the bill.(c) 
 
 But it must be remembered that an indorsement 
 will not convey the legal title to recover on the bill, 
 unless the instrument is made negotiable, that is, paya- 
 ble to order or to bearer. A bill or note payable to 
 an individual, without mentioning to his order or to 
 bearer, cannot be transferred so as to entitle the as- 
 signee to sue in his own m.m.e.{d) It is immaterial 
 whether the bill be payable " to the order of A B," or 
 " to A B, or order."(e) 
 
 (a) Wilkinson v. Nicklin, 2 Ball. 398 ; Perry v. Cramond, 1 Wash. 0. 
 C. R. 100 ; Humphries v. Bright, 4 Ball. 370. 
 
 {b) Norton v. Wait, 2 App. 175. 
 
 (c) Van Staphorst u. Pearoe, 4 Mass. 258 ; Bank of U. States v. Beime, 
 1 Grattan, 234 ; Hubbard v. Williamson, 5 Iredell, 397. 
 
 {d} Girard v. La Coste, 1 Ball. 194 ; Smurr v. Forman, 1 Ham. 272. 
 
 (e) Huling v. Hugg, 1 Watts & Serg. 418. 
 
OF PARTICULAR CONTRACTS. 465 
 
 No. 1143. Books, part 2, tit. 5, chap. 3, sec. 2, §5, art. 1,2. No. 1145. 
 
 § 5. — Of the acceptance of a bill of exchange. 
 
 1143. The acceptance of a bill of exchange is an 
 act by which the drawee, or other person, evinces his 
 assent or intention to comply with, or be bound by, 
 the request contained in a bill of exchange to pay the 
 same ; or in other words, it is an engagement to pay the 
 nil when due. It will be proper to consider, 1, by 
 whom the acceptance ought to be made ; 2, the time 
 when it ought to be made ; 3, the form of the accept- 
 ance ; 4, its extent and effect. 
 
 Art. 1. — By whom the acceptance ought to he made. 
 
 1144. The acceptance must be made by the drawee 
 himself, or by one authorized by him. On the pre- 
 sentment of a bill, the holder has a right to insist 
 upon such an acceptance by the drawee as will subject 
 him, at all events, to the payment of the bill, accord- 
 ing to its tenor; consequently, such acceptor or 
 drawee must have capacity to contract, and to pay 
 the amount of the bill, or it may be treated as dis- 
 honored, (c) Once having accepted the bill, the 
 drawee is not bound to reiterate his acceptance, he 
 cannot be asked therefore to accept all parts of a set of 
 a bill.(&) 
 
 A treasurer of a corporation accepting a bill with- 
 out authority, does not bind the corporation, (c) and 
 one accepting a bill and adding to his name " adminis- 
 trator," is responsible in his individual capacity.((^) 
 
 Art. 2. — Of the time when the acceptance ought to he made. 
 
 1145. The acceptance may be made before the bill 
 is drawn or afterward. When it is made before the 
 bill is drawn, it is only a promise to accept the bill 
 
 (a) Marius, 22. 
 (h) Pardess. n. 365. 
 
 (c) Atkinson v. St. Croix Man. Co., 11 Shep. 171. 
 
 [d) Tassey v. Church, 4 W. & S. 346. 
 
 Vol. I. 30 
 
/ 
 
 / 
 
 / 
 
 OF THINGS. 
 
 Book 2, part 2, tit. 5, chap. 3, sec. 2, § 5, ait. 3. No. 1148. 
 
 drawn; such promise binds the promisor. (a) 
 / will not be binding if the bill be payable after 
 sigix-i(6) When made after the bill is drawn, it must 
 be made within twenty-four hours after presentment, 
 or it may be treated as dishonored. (c) The accept- 
 ance may be before or after the bill becomes due, and, 
 even after refusal to accept, the drawee may make a 
 binding acceptance. 
 
 The bill may be accepted even after it has been pro- 
 tested for non-acceptance, and this is called an accept- 
 ance supra protest. It may be accepted by any one for 
 the honor of one party to the bill, and it may be 
 so accepted by another, for the honor of another 
 party, (c?) 
 
 Art. 3. — Of the form of the acceptance. 
 
 1146. The acceptance may be in writing on the bill 
 itself, or on another paper, or it may be verbal ; or it 
 may be express or implied. 
 
 1147. — 1. An express acceptance is an agreement 
 in direct and express terms, to pay a bill of exchange 
 by the party on whom it is drawn, or some other per- 
 son, for the honor of some of the parties. It is usually 
 in the words accepted or accepts, but other words show- 
 ing an engagement to pay the bill will be equally 
 binding, (e) 
 
 1148. — %. An implied acceptance is an agreement 
 to pay the bill, not by direct and express terms, but 
 from such acts of the parties as would infer an accept- 
 ance; for example, if the drawee writes on the bill 
 " seen," " presented," or any other thing, as the day 
 
 (o) Russell V. Wiggin, 2 Story, ?13 ; Bayard v. Lathy, 2 McLean, 462 ; 
 Read v. Marsh, 5 B. Munr. 8 ; Kennedy v. Geddes, 8 Port. 263 ; Wildes v. 
 Savage, 1 Story, 22. 
 
 (J) 1 Story, 22 ; 2 Story, 213. 
 c) Chit. Bills, 212, 217. 
 
 (d) Beawes, tit. Bills of Exchange, pi. 52. 
 
 (e) Spear v. Pratt, 2 Hill, 582. 
 
OF PARTICULAR CONTRACTS. 467 
 
 No. 1149. Book 2, part 2, tit. 5, chap, 3, sec. 3, No. 1153. 
 
 on which it becomes due; this, unless explained by 
 circumstances, will be considered an acceptance. (a) 
 
 Art. 4. — Of the extent and effect of an acceptance. 
 
 1149. The acceptance is prim^ facie evidence that 
 the drawer has made provision for the bill, that is, that 
 he has funds in the hands of the drawee. (&) As between 
 the holder and acceptor, it is of no consequence whether 
 the drawee has any funds of the drawer in his hands 
 or not ; but to entitle the holder to recover from an 
 accommodation acceptor, he must be an innocent 
 holder, for value and without notice. (c) The effect of 
 an acceptance is either absolute, conditional or partial. 
 
 1150. — 1. An absolute acceptance is an engagement 
 to pay the bill according to its tenor, and usually by 
 writing on the bill " accepted," and writing the ac- 
 ceptor's name, or by merely writing his name at the 
 bottom or across the bill.(c?) But in order to bind 
 another than the drawee, it is requisite his name should 
 appear, (e) 
 
 1151. — 2. A conditional acceptance is one which will 
 subject the acceptor to the payment of money on a 
 contingency. (/) The holder is not bound to receive 
 such an acceptance, but if he do receive it, he must 
 observe its terms. 
 
 1152. — 3. A partial acceptance varies from the 
 tenor of the bill ; as, where it is made to pay a part of 
 the sum for which the bill is drawn, or to pay at a dif- 
 ferent time, or upon other terms. 
 
 SECTION 3. OF THE PRESENTMENT OP A BILL OF EXCHANGE. 
 
 1158. Presentment is the production of a bill of ex- 
 change, or promissory note, to the person on whom the 
 
 (a) Spear v. Pratt, 2 Hill, 582 ; Ward v. Allen, 2 Mete. 53. 
 
 \b) Kendall v. Galvin, 3 Shep. 131. 
 
 (c) Boggs V. Lancaster Bank, 7 Watts & Serg. 331. 
 
 Id) Vin. Ab. Bills of Exchange, L. 4; 2 Hill, R. 582. 
 
 (e) Bayl. on Bills, 78. 
 
 (/) Bayl. 83 : Walker v. Little, 1 Richardson, 249. 
 
468 OF THINGS. 
 
 No. 1154. Books, part 2, tit. 5, chap. 3, sec. 3, 4 1,2. No. 1155. 
 
 former is drawn for Hs acceptance, or to the person 
 bound to pay either, for payment. The holder of a 
 bill is bound, in order to hold the parties to it responsi- 
 ble to him, to present it in due time for acceptance, 
 and to give notice, if it be dishonored, to all parties he 
 intends to hold liable. And when the bill or note be- 
 comes payable, it must be presented for payment. The 
 principal circumstances attending presentment, are, 
 1, the person to whom ; 2, the place where ; and 3, the 
 time when it is to be made. 
 
 § 1. — The person to whom the presentment must be made. 
 
 1154. The presentment for acceptance of a bill 
 should be made on the drawee of a bill, on the accep- 
 tor for payment, and on the maker of a note for pay- 
 ment; but a presentment, when the instrument is 
 payable at a particular place, is sufficient if made there. 
 A personal demand on the drawee or the acceptor, is 
 not requisite ; a demand at his usual place of residence, 
 of his wife, or other agent, is sufficient. 
 
 § 2. — The place where a presentment ought to be made. 
 
 1155. When the bill is payable at a particular place, 
 the presentment may be made there, but when the 
 acceptance is general, the presentment must be at the 
 house or place of business of the party. By place of 
 business, is meant the place where a man transacts his 
 affairs. When a man keeps a store, shop, counting- 
 house, or office, independently and distinctly from all 
 other persons, this is deemed his place of business ; 
 and when he usually transacts his business at the 
 counting-house, office, or the like, occupied and used 
 by another, that will be considered his place of busi- 
 ness, if he has no independent place of his own. But 
 when he has no particular right to use a place for his 
 private purposes, as in an exchange room or banking 
 house, an insurance office, and the like, this will not be 
 
OF PARTICULAR CONTRACTS. 469 
 
 No. 1156. Book'2, part 2, tit. 5, chap. 3, sec. 3, § 3, 4, art. 1. No. 1158. 
 
 considered his place of business, although he may 
 transact business there. (a) 
 
 § 3. — Of the time of presentment. 
 
 1156. The time of presentment must be considered 
 with reference, 1, to a presentment for acceptance; 
 2, to one for payment. 
 
 1. When a bill is payable at sight, or after sight, the 
 presentment must be made in a reasonable time, and 
 what this reasonable time is, depends on the circum- 
 stances of each case.(&) When it is payable on a cer- 
 tain day, it need not be presented for acceptance before 
 the day of payment, but if it be, notice must be given, 
 if not accepted, (c) 
 
 2. The presentment of a note or bill must be made 
 on the day it becomes due, and notice of non-payment 
 given, as explained below ; and in case the instrument 
 be payable at a particular place, and money is lodged 
 there for payment, the holder would probably have no 
 recourse against the maker or acceptor, if he did not 
 present it there on that day, and the money should be 
 lost. 
 
 § 4. — Of the excuses for not making a presentment. 
 
 1157. These excuses are applicable to all indorsers 
 generally, or to special indorsers only. 
 
 ^rt. 1. — Of excuses applicable to all indorsers. 
 
 1158. Among these excuses may be classed the fol- 
 lowing : 
 
 1. Inevitable accident, or overwhelming calamity, 
 
 (a) Story on Bills, ^ 236 ; Story on Pr. N. § 312 ; Chit. Bills, ch. 10, p. 
 502, 8th ed. ; Williams v. Bank of U. S., 2 Pet. 100 ; Bank of U. S. v. 
 Hatch, 1 McLean, 92 ; Franklin v., Verbois, 6 MiUer, Lo. R. 730. 
 
 {b) Robinson v. Ames, 20 John. 146 ; Aymar v. Beers, 7 Cowen, 705 ; 
 Depau V. Browne, Harper, 259. 
 
 (c) Cannichael v. Pennsylvania Bank, 4 How. Mis. 567; Glasgow v. 
 Copeland, 8 Mis. 268 ; Bank of Washington v. Tripplett, 1 Pet. 25 ; Town- 
 ley V. Sumrall, 2 Pet. 170. 
 
470 OF THINGS. 
 
 No. 1159. Book 2, part 2, tit. 5, chap. 3, sec. 4. No. 1159. 
 
 as floods and snows, whicli prevent all travelling ; or 
 the sudden illness of the holder. 
 
 2. The prevalence of a malignant disease, by which 
 the ordinary operations of business are suspended. (a) 
 
 3. The breaking out of war between the country of 
 the maker or acceptor, and of the holder. 
 
 4. The occupation of the country where the note is 
 payable, or where the parties live, by a public enemy, 
 which suspends commercial operations and intercourse. 
 
 5. The obstruction of the ordinary negotiations of 
 trade by the vis major. 
 
 6. Positive interdictions and public regulations of 
 the state, which suspend commerce and intercourse. 
 
 7. The utter impracticabiUty of finding the maker, 
 or ascertaining his place of residence. (6) 
 
 ./??•#. 2. — Excuses applicable to particular persons. 
 
 Among the special excuses for not making a present- 
 ment, may be enumerated the following : 
 
 1. By the holder receiving the note from the payee, 
 or other antecedent party, too late to make a due pre- 
 sentment ; this will be an excuse to such party. 
 
 2. The note being an accommodation note of the 
 maker, for the benefit of the indorser. 
 
 3. A special agreement by which the indorser waives 
 the presentment. 
 
 4. By an indorser receiving security or money to 
 secure himself from loss, or to pay the note at matu- 
 rity. When the amount received is sufficient to pay 
 the note or bill, no presentment is required. 
 
 5. By the holder receiving the note from an in- 
 dorser, as a collateral security for another debt due by 
 him. 
 
 SECTION 4. OP THE NOTICE OP DISHONOR. 
 
 1159, When a bill of exchange is not accepted 
 
 (a) Roosevelt r. WoodhuU, Anthon, 35. 
 
 (b) Ellis V. Com. Bank, 7 How. Mis. 294 ; Reid v. Morrison, 2 W. & S. 
 401. 
 
OF PARTICULAR CONTRACTS. 471 
 
 No. 1160. Book 2, part 2, tit. 5, chap. 3, sec. 4, § 1, 2. No. 1161. 
 
 when presented to the drawee for acceptance, or if 
 accepted, and it is not paid when presented for pay- 
 ment, it is said to be dishonored, and notice of this fact 
 must be given by the holder to all the parties he in- 
 tends to hold responsible to him. This notice should 
 be, 1, in proper form ; 2, given by a proper person ; 
 3, to another ; 4, at a proper time ; 5, in a proper 
 place ; 6, it has then certain effects ; 7, it may be ex- 
 cused ; and, 8, it may be waived. 
 
 § 1. — Of the form of notice of dishonor. 
 
 1160. No precise form of words is requisite for such 
 a notice ; but it must substantially convey — 
 
 1 . A true description of the bill or note so as to ascer- 
 tain its identity; if, however, it cannot mislead the 
 party to whom it is sent, and it conveys the real fafct 
 without any doubt, although there may be a small 
 variance, it cannot be material, either to regard his 
 rights or to avoid his responsibility. (a) 
 
 2. The notice must contain an assertion that the bill 
 has been duly presented to the drawee for acceptance, 
 when acceptance has been refused, or to the acceptor 
 of the bill, or maker of a note, for payment at its ma- 
 turity, and dishonored. (6) 
 
 3. The notice must state that the holder, or other 
 person giving it, looks to the person to whom it is given, 
 for reimbursement and indemnity. (c) But although 
 this strictness is required, yet in general it will be 
 presumed, where, in other respects, the notice is suffi- 
 cient. (^) 
 
 § 2. — By whom notice of dishonor should be given. 
 
 1161. In general notice must be given by the 
 holder or some one authorized by him, or by some one 
 
 (a) Story, Bills, i 390 ; 11 Wheat. 431, 436. 
 
 (b) See Cowles v. Harts, 3 Conn. 517 ; Shrieve v. Duokham, 1 Litt. 194. 
 
 (c) Story on Bills, ^ 301, 390 ; Chit, on Bills, 460. 
 
 (d) Furze v. Sharwood, 2 A. & E. N. E. 388, 416 ; Story on P. N. § 353 ; 
 Cowles V. Harts, 3 Conn. 517 ; Shrieve v. Duokham, 1 Litt. 194. 
 
472 OF THINGS. 
 
 No. 1162. Book 2, part 2, tit. 5, chap. 3, sec. 4, § 3, 4. No. 1163. 
 
 who is a party and liable on the instrument. A no- 
 tice given by a stranger is insufl&cient.(a) On the death 
 of the holder, his executor or administrator must give 
 the notice ; when several have a joint interest as 
 holders, and one dies, notice must be given by the 
 survivor ; a bankrupt holder may give the notice, but 
 it is the duty of his assignee io do so. An infant may 
 give notice, but if he has a guardian, the latter should 
 do it.(&) 
 
 § 3. — To whom notice of dishonor should be given. 
 
 1162. The holder is required to give notice to aU 
 the parties to whom he means to resort for payment, 
 and, unless excused in point of law, as will be men- 
 tioned below, such parties will be exonerated and 
 absolved from all liabiUty on such instrument, unless 
 perhaps under special circumstances. (c) Notice to one 
 partner is sufficient, ((^) but notice should be given to 
 each of several joint indorsers, who are not part- 
 ners, (e) Notice may be given to the agent of an 
 absent indorser.(/) 
 
 § 4. — When notice of dishonor should he given. 
 
 1163. The notice of dishonor must be given to the 
 parties within a reasonable time after the dishonor of 
 the bill, when it is dishonored for non-acceptance, and 
 the holder must not delay giving notice until the bill 
 has been presented for non-payment, (g) Though for- 
 merly it was doubted whether the court or jury were 
 to judge as to the reasonableness of the notice in 
 
 [t 
 
 Walker v. State Bank, 8 Mis. 704. 
 (ij Chit. BiUs, 368, 8th ed. ; Story, Bills, ^ 303 ; Story, P. N. ? 304, 
 305. 
 
 (c) Van Wart v. Smith, 1 Wend. 219 ; 4 Wash. C. 0. 1. 
 
 (d) Story, BiUs, § 299 ; Story, Prom. N. ^ 308 ; 2 How. U. S. 457. 
 
 (e) Id. 
 
 (/) Crosse v. Smith, M. & S. 545; 16 Mart. Lo. R. 87. 
 
 (g) Lenox v. Leverett, 10 Mass. 5 ; Martin v. Ingersoll, 8 Pick. 1 ; Dun- 
 can V. Course, 1 Rep. Cons. Ct. 103. But see Brown v. Barry, 3 Dall. 308 ; 
 Read v. Adams, 6 S. & R. 356. 
 
OF PARTICULAR CONTRACTS. 473 
 
 No. 1164. Booka, parts, tit. 5, chap. 3, sec. 4, 45, 6. No. 1165. 
 
 respect of time, yet it seems now to be settled that 
 when the facts are ascertained, it is a question for the 
 court and not for the jury. (a) 
 
 § 5. — Where notice of dishonor should be given. 
 
 1164. A distinction is made as to the place where 
 notice is to be given between parties who reside in the 
 same town or place, and those who do not. 
 
 1. When both parties reside in the same town or 
 city, the notice should be given either personally or at 
 the domicil or place of business of the party notified, 
 so that it may reach him on the very day he is en- 
 titled to notice. (&) If the notice be put in the post 
 office, the holder must prove it reached the indorser. (c) 
 But in those towns where they have letter carriers, if 
 the notice be put in the office to be delivered in time 
 that day it is sufficient. (^) 
 
 2. When the parties reside in different towns or 
 cities, the notice may be sent by the post, or a special 
 messenger, or a private person, or by any other suitable 
 or ordinary conveyance. (e) When the post is resorted 
 to, the holder has the whole day on which the bill be- 
 comes due to prepare his notice, and if it be put in 
 the post office on the next day, in time to go by either 
 mails, when there is more than one, it will in general 
 be sufficient. (/) 
 
 § 6. — Of the effect of notice of dishonor. 
 
 1165. When properly given and followed by a pro- 
 test, when a protest is requisite, the notice of dishonor 
 
 (a) United States v. Barker, Paine, 156 ; Mallory v. Kirwan, 2 Dall. 192 ; 
 Denniston v. Imbrie, 3 Wash. C. 0. 396. 
 
 (b) Williams v. Bank of the United States, 2 Pet. 100; 1 M. & S. 545 ; 
 Story, on Bills, § 284—290. 
 
 (c) Bank of U. S. v. Corcoran, 2 Pet. 121. 
 
 (d) Chit. Bills, 504, 508, 513, 8th ed. 
 
 (e) Chit. Bills, 518, 8th ed. ; Story, P. N. § 324 ; Bussard v. Levering, 6 
 Wheat. 102 ; Munn v. Baldwin, 6 Mass. 316 ; Stanton v. Blossom, 14 Mass. 
 116. 
 
 (/) Whitwell V. Johnson, 17 Mass. 449 ; Howard v. Ives, 1 Hill, (N. Y ) 
 263 ; Contra, Bank of U. S. v. Merle, 2 Rob. Lo. R. 117. 
 
474 OF THINGS. 
 
 No. 1166. Book 2, part 2, tit. 5, chap. 3, sec. 5. No. 1170. 
 
 will render the drawer and indorsers of a bill, or in- 
 dorsers of a note, liable to the holder. 
 
 § 7. — What will excuse the want of notice of dishonor. 
 
 1166. The same reasons which will excuse a pre- 
 sentment, will be sufficient to excuse a want of notice. 
 
 § 8. — Of the waiver of the notice of dishonor. 
 
 1167. The party to be affected may waive the no- 
 tice, but this must be done with full knowledge of his 
 rights, and the waiver must not be obtained by 
 surprise. («) 
 
 SECTION 5. — OF THE PROTEST OF A BILL OR NOTE. 
 
 1168. When a bill or note is not paid upon present- 
 ment, notice is given to the parties, and the next 
 thing to be done is to protest it. A protest is a 
 notarial act made for want of a payment of a promis- 
 sory note, or for want of acceptance or payment of a 
 bill of exchange, by a notary public, in which it is de- 
 clared that all the parties to such instruments will be 
 held responsible to the Tiolder for all damages, ex- 
 changes, reexchanges, etc. It is dated and signed by 
 the notary and sealed with his official seal. 
 
 1169. There are two kinds of protests of a bill, one 
 for non-acceptance, which is made before the bill be- 
 comes due, on the drawee refusing to accept on present- 
 ment of the bill to him by the notary for acceptance ; 
 and the other after the bill becomes due, when presented 
 to the acceptor for payment and a refusal or neglect 
 of making it. The protest of a note is always for non- 
 payment. 
 
 1170. In making the protest three things are requi- 
 site to be done : 
 
 1. The noting, which is a minute made by the 
 notary on the bill or note after it has been presented 
 for acceptance or payment, consisting of the initials'of 
 
 (a) Story, P. N. ^ 358. 
 
OF PARTICULAR CONTRACTS. 475 
 
 No. 1171. Book 2, part 2, tit. 5, chap. 3, sec. 6. No. 1172. 
 
 his name, the date when it was made, and the reasons 
 assigned, if any, why it was not accepted or paid, 
 together with his charge. This is however only a part 
 of the protest, it will not supply the protest, (a) 
 
 2. The demand, which must be made by a person 
 having authority to receive the money. (&) 
 
 3. The drawing up of the protest, which is a mere 
 matter of form. 
 
 1171. The effect of the protest when properly made, 
 after presentment and notice, is to hold all the parties 
 to the bill or note responsible to the holder. 
 
 SECTION 6. — ^HOW THE PARTIES TO A BILL OK NOTE ARE 
 DISCHARGED. 
 
 1172. The parties to a bill or note will be discharged 
 from it in a variety of ways, as parties are discharged 
 from other contracts ; the most common are payment, 
 satisfaction, bankruptcy, merger, novation, accord and 
 satisfaction, release, covenant not to sue, set off, con- 
 fusion, all of which have been considered in a former 
 chapter. 
 
 In addition to these, the act of the holder giving 
 time to the makers of a note, or acceptors of a bill, by 
 which he deprives himself of a right to sue them, 
 however short the time may be, discharges all the 
 other parties from responsibility to him, because then 
 the contract has been changed, and, if that has been 
 done without the indorsers' consent, they are not 
 parties to such last contract, (c) But mere delay in 
 sueing, without fraud, or any agreement with the 
 maker or acceptor, will not discharge the indorsers. (t^) 
 
 (a) Chit. Bills, 280, 398; 4 T. R. 175. The hour of presentment and 
 protest need not be stated by the notary. Cayuga Bank v. Hunt, 2 Hill, 
 635. 
 
 lb) Carmichael v. Pennsylvania Bank, 4 How. Mis. 567. 
 
 (c) Bac. Ab. Obligations, D ; Story, P. N. ^ 414. 
 
 {d) Stoiy, P. N. ^ 414. 
 
476 OF THINGS. 
 
 No. 1173. Book 2, part 2, tit. S, chap. 4. No. 1173. 
 
 CHAPTER IV. or PROMISSORY NOTES. 
 
 1173. A promissory note is a written promise, nol 
 under seal, by one or more persons, called the makers, 
 to pay to one or more other persons, called the payees. 
 for a valuable consideration, a certain sum of money, a1 
 a future time, unconditionally, (a) A promissory note 
 differs from an agreement to deliver or pay goods, 
 which is not negotiable; and from a mere acknow- 
 ledgment of debt, without any promise to pay, as 
 when the debtor gives to his creditor a memorandum 
 in these words : I TJ (I owe you) one hundred dol- 
 lars. But if, to this acknowledgment, there be a 
 promise to pay, the instrument will be a promissory 
 note.(&) 
 
 In its form a promissory note usually contains a 
 promise to pay, at a time therein expressed, a sum oi 
 money, to a person therein named, or to his order, for 
 value received. It is dated and signed by the maker. (c) 
 It is never under seal. Although in its original shape 
 a promissory note bears no resemblance to a bill of ex- 
 change, yet when indorsed it is exactly similar to one, 
 for then it is an order by the indorser of the note, upor 
 the maker, to pay the indorsee ; the indorser is, as ii 
 were, the drawer ; the maker, the acceptor ; and the 
 indorsee, the payee. (J) 
 
 No peculiar form is requisite to these instruments ; 
 a promise to pay or deliver money, or to be account- 
 able for it, or that the payee shall have it, is suffi- 
 
 (a) Curtis v. Rickarts, 1 Man. & Gr. 46 ; Read v. Wheeler, 2 Yerg. 50, n 
 (J) Kimball v. Huntington, 10 Wend. 675 ; Brooks v. Elkins, 2 Mees. & 
 Wels. 74. 
 
 (c) An instrument in the usual words of a note, payable to bearer anc 
 with an authority to an attorney to enter judgment in favor of the holder 
 for the amount of the note with costs, coupled with a release of errors, and 
 a waiver of stay of execution, and of the right to an inquisition and ap 
 praisement, is not a negotiable note, and the maker is not entitled to thi 
 days of grace ; where a judgment was entered on this instrument and ai 
 execution issued before the expiration of the days of grace, the proceedingi 
 were held to he regular. Overton v. Tyler, 3 Penn. St. Rep. 346. 
 
 (d) Burr. 669, 1224 ; 4 T. R. 148. 
 
OF PARTICULAR CONTRACTS. 477 
 
 No. 1174. Book 2, part 2, tit. 5, ch ap. 5. No. 1175.^ 
 
 cient.(a) The principal qualities essential to its 
 validity are, 1, that it be payable at all events, and do 
 not depend upon a particular fund, nor upon any con- 
 tingency. And, secondly, that it be for money only.(&) 
 Most of the rules applicable to a bill of exchange, 
 equally affect promissory notes; these having been 
 considered under another head, wiU not be here 
 repeated. 
 
 CHAPTER v.— OF MARINE INSURANCE. 
 
 1174. Insurance is a contract by which one of the 
 parties, called the insurer, binds himself to the other, 
 called the insured, to pay him a sum of money, or 
 otherwise indemnify him, in case of the happening of 
 a fortuitous event provided for in a general or special 
 manner in the contract, in consideration of a premium 
 which the latter pays or binds himself to pay to him. 
 
 , The instrument by which the contract is made is 
 denominated a j?o/zc?/; the events or causes to_be in- 
 sured against, risTcs or perils; and the thing to be 
 insured, the subject, or insurable interest. There are 
 three kinds of insurance : marine insurance, life insur- 
 ance, and fire insurance. 
 
 1175. Marine insurance is a contract by which one 
 party, for a stipulated premium, undertakes to indem- 
 nify the other, against all perils or sea-risks, to which 
 his ship, freight or cargo, or some of them, may be 
 exposed, during a certain voyage, or fixed period of 
 time. 
 
 The most perfect good faith is required in this con- 
 tract ] if the insured make false representations to the 
 insurer, in order to procure his insurance upon better 
 terms, it will avoid the contract, though the loss may 
 arise from a cause unconnected with the misrepresen- 
 tation; or if the concealment happen through mistake. 
 
 is 
 
 (ffi) Chit. Bills, 53, 54. 
 
 (h) McCormiok v. Trotter, 10 S. & R. 94 ; Gray v. Donahoe, 4 Watts, 
 400. In New York, it has been held that a note payable in bank notes is 
 good. 9 John. 120 ; 29 John. 144. 
 
478 OF THINGS. 
 
 No. 1176. Book2, parta, tit. 5, ohap.5, sec. 1, 2, § 1. No. 1178. 
 
 neglect or accident, without any fraudulent intention, 
 for this reason, that the insurer was not the less 
 deceived. 
 
 SECTION 1. — PARTIES TO THE POLICY. 
 
 1176. All persons may be insured, whether they be 
 natives, citizens, or aliens, with the exception of alien 
 enemies. A policy may be made to an individual, or 
 " for whom it may concern," and it may be made by 
 an agent, without any warranty or representation of 
 national character, and it will cover any interest of 
 any person whether American or foreigner, who has 
 authorized the insurance. (a) 
 
 SECTION 2. — OF THE THINGS INSURED. 
 
 1177. The contract of marine insurance naturally 
 supposes objects which one of the contracting parties 
 fears to lose, in whole or in part, in consequence of 
 accidents which may occur to them on the sea ; they 
 must, therefore, be actually exposed to the risks, and 
 that the assurer should receive an equivalent for the 
 chances which he is obhged to run. 
 
 Every thing susceptible of becoming the object of a 
 commercial transaction, which is in danger of perish- 
 ing or being deteriorated, in whole or in part, in con- 
 sequence of maritime accidents, may be the object of 
 this contract. The intent of the insurance, strictly 
 speaking, is not to make a positive gain, but to avert 
 a possible loss. A man cannot properly be said to be 
 indemnified against a loss which can never happen to 
 him. There cannot therefore be an indemnity without 
 a loss, nor a loss without an interest. 
 
 § 1. — Of the interest of the insured. 
 
 1178. It is not easy to define an insurable interest. 
 The policy of commerce and the various complicated 
 
 (a) Seamens v. Loring, 1 Mason, 127 ; Hulbert v. Ins. Co., 2 Sumner, 
 471 ; Flemming v. Mar. Ins. Co., 4 Whart. 59 ; De BoUe v. Penn. Ins. Co., 
 4 Whart. 68. 
 
OF PARTICULAR CONTRACTS. 479 
 
 No. 1179. Book 2, part 2, tit. 5, chap. 5, sec 2, § 2. No. 1182. 
 
 rights which different persons may have in the same 
 thing, require that not only those who have an abso- 
 lute property in ships and goods, but those also who 
 have a qualified property in them may be at liberty to 
 insure them ; for example, when a ship is mortgaged, 
 after the mortgage becomes absolute, the owner of the 
 legal estate has an insurable interest, and the mort- 
 gagor, on account of his equity, has also an insurable 
 interest, (fl) 
 
 1179. Wager policies, or those made on a pretended 
 subject, which in fact does not exist, are generally 
 void, though formerly, at common law, they were 
 considered valid. (6) Such policies are usually con- 
 ceived in the terms, "interest or no interest," or 
 " without further proof of interest than the policy," 
 or "free from average and without benefit of sal- 
 vage, "(c) 
 
 1180. When an insurer is desirous of lessening his 
 liability, he may procure some other insurer to insure 
 him from loss, for the insurance by him made ; this is 
 called reassurance. 
 
 1181. Sometimes an insured may be doubtful of the 
 solvency of his insurer, he is then allowed to make a 
 second or double insurance, on the same risk and the 
 same interest, but he is not permitted to receive a 
 double satisfaction in case of loss, though he may sue 
 on both policies. The underwriters on the different 
 policies are bound to contribute rateably toward the 
 loss,(c?) 
 
 § 2.— Of fte ship. 
 
 1182. Whether the insurance be on the goods or 
 the ship, it is an object of great interest to both parties 
 that the latter should be sound and in good order. 
 
 (a) Godin v. Lond. Ass. 1 Burr. 489 ; Smith v. Lasoelles, 2 T. R. 188. 
 See Rider v. Ocean Ins. Co., 20 Pick. 259 ; Buck v. Chesapeake Ins. Co., 
 1 Pet. 163 ; Oliver v. Green, 3 Mass. 133 ; Higgins v. Ball, 13 Mass. 96. 
 
 (h) 3 Kent, Com. 275, 4th ed. 
 
 (c) Marsh, on Ins. 121. 
 
 (d) Park on Ins. 374, 375 ; Lucan v. Jefferson Ins. Co., 6 Oowan, 635. 
 
480 OF THINGS. 
 
 No. 1183. Book 2, part 2, tit. 5, chap. 5, Bee. 2, § 2, art. 1. No. 1183. 
 
 There is an implied agreement in evfery contract of 
 marine insurance, which the insured is required to fulfil. 
 The principal stipulations in this implied agreement 
 are, that the ship is sear worthy ; that she shall not be 
 changed without the consent of the insurers ; and that 
 she shall be employed, conducted, and navigated with 
 reasonable skill and according to law. 
 
 Art. 1. — Of the secHWorthiness of the ship. 
 
 1183. By sea-worthiness is meant the ability of a 
 ship or other vessel to make a sea voyage, with pro- 
 bable success and safety. No man, it is presumed, 
 would venture out to sea, with a ship known not to be 
 sea-worthy, and no one would insure such a ship; 
 there is, therefore, an implied agreement and promise, 
 on the part of the insured, that the ship is sea- worthy 
 when she sails for the voyage insured ; that is, that 
 she shall be "tight, staunch, and strong, properly 
 manned, provided with stores, and in all respects fit 
 for the intended voyage. "(a) But the implied war- 
 ranty of sea-worthiness relates only to the commence- 
 ment of the voyage. (6) 
 
 To be sea- worthy, the ship must not only be tight, 
 staunch and strong, and provided with necessary 
 stores for the voyage proposed, but, as already inti- 
 mated, she must be properly manned by persons of 
 competent skill and ability to navigate her. If, there- 
 fore, she sail without a sufficient number of competent 
 hands to navigate her, for her voyage ; or if she be 
 suffered to sail in a river or other place of difficult 
 navigation, without a pilot properly qualified, the 
 underwriters will be discharged, for this is a breach of 
 the condition. (-c) 
 
 (a) Am. Ins. Co. v. Ogden, 15 Wend. 532 ; Talcot v. Com. Ins. Co., 
 2 John. 124; Talcot v. Marine Ins. Co., 2 John. 130; Garrigues v. Coxe, 
 1 Binn. 592 ; Ingraham v. S. Car. Ins. Co., Const. Kep. 707. 
 
 {b) Peters v. Phoenix Ins. Co., 3 S. & R. 25 ; Hughes on Ins. 205 ; Marsh, 
 on Ins. 165. 
 
 (c) Marsh, on Ins. 165, h. But see Keeler v. Firemen's Ins. Co., 3 Hill, 
 250 ; Silva v. Law, 1 John. Cas. 184. 
 
OF PARTICULAR CONTRACTS. 481 
 
 No. 1184. Book 2, part 2, tit. 5, chap. 5, sec. 2, § 2, art. 2, 3. No. 1186. 
 
 Whether a vessel was sea-worthy when she sailed, 
 is a question of fact for the jury; (a) but in some cases 
 it will be presumed that she was not sea- worthy. (6) 
 
 Art. 2. — Of the employment of the ship. 
 
 1184. Not only must the ship be sea-worthy, weU 
 manned, and have the proper documents to prove her 
 nationality ; she must also be employed in a lawful 
 voyage, not only according to the municipal law, and 
 the law of nations, but also according to particular 
 treaties between the country to which she belongs and 
 other states. (c) 
 
 Art. 3. — Of the voyage. 
 
 1185. Another subject of insurance is the voyage. 
 By voyage is meant the passage of the ship upon the 
 seas, from one port to another. She may, when al- 
 lowed, touch at several ports in her voyage ; but the 
 voyage is from the port of departure to the port of 
 her final destination. It is a general rule that none 
 but a lawful voyage can be insured. 
 
 This article will be divided into two parts: 1, when 
 the illegality of the voyage shall avoid the contract ; 
 2, when the underwriters will be discharged on account 
 of a deviation from the voyage. 
 
 1. When the illegality of the voyage shall avoid the contract. 
 
 1186. An insurance made on a voyage undertaken 
 in violation of the laws of the United States, or of the 
 laws of nations, or of the country where the contract 
 has been made, is void, whether the insurer were or 
 were not informed of the illegality of the voyage. ((Z) 
 
 (a) Union Ins. Co. v. Caldwell, Dudley, S. C. 263 ; Chase v. Eagle Ins. 
 Co. 5 Pick. 51. 
 
 (b) Talcot V. Com. Ins. Co. 2 John. 124 ; Talcot v. Mar. Ins. Co. 2 John. 
 130. 
 
 (c) Marsh, on Ins. 177. 
 
 (d) Craig v. Ins. Co. Pet. 0. 0. 410; Richardson v. Maine Ins. Co. 
 6 Mass. 102 ; Breed v. Eaton, 10 Mass. 21 ; Gray v. Sims, 3 Wash. C. C. 
 276. 
 
 Vol. I. 31 
 
482 OF THINGS. 
 
 No. 1187. Book 2, part 2, tit. 5, chap. 5, sec. 2, § 2, art. 3. No. 1189. 
 
 2. WAai devialion from the voyage mil discharge the underwriters. 
 
 1187. A deviation of a ship from her voyage is a 
 voluntary departure, without necessity or reasonable cause, 
 from the regular and usual course of the voyage in- 
 sured. What amounts to a deviation is not easily de- 
 fined, but a voluntary departure from the usual course 
 of the voyage, or remaining at places where the ship 
 is allowed to touch longer than necessary, or doing 
 there what the insured is not authorized to do, as if 
 the ship have liberty to touch at a port, and the 
 insured stay there to trade or to break bulk, it is a 
 deviation ;(a) or if captured, carried into port, and 
 released, and the vessel remains in port to trade, it will 
 be a deviation. (6) But a mere intention to deviate, 
 will not avoid the policy. (c) A departure from the 
 usual course, when occasioned by necessity, will not 
 have any effect of avoiding the contract, when it can 
 be justified ; and its effects, when it is not justifiable, 
 will be separately considered. 
 
 1° When a deviation can he justified. 
 
 1188. To make a deviation, there must be a voluntary 
 departure from the usual course of the voyage insured. 
 But by the course of the voyage is not meant the shortest 
 course the ship can make from her port of departure 
 to her port of destination, but the regular and cus- 
 tomary track, if such there be, which long usage has 
 proved to be the safest and the best.((^) 
 
 1189. A deviation may be justified from numerous 
 causes, always grounded on a physical or moral neces- 
 sity, the principal of which are the following : 
 
 1. A deviation may be justified by stress of weather; 
 if, therefore, a ship be driven out of her course by a 
 
 [a) Coffin u. Newburyport Ins. Co. 9 Mass. 436 ; Coles v. Marine .Ins. 
 Co. 3 Wash. C. 0. 159 ; Snowden v. Phoenix Ins. Co. 3 Binn. 466. 
 ib) Kingston v. Girard, 4 Dall. 274. 
 
 (c) 3 Binn. 466 ; 9 Mass. 436 ; Hobart v. Norton, 8 Pick. 159 ; Marine 
 Ins. Co. V. Tucker, 3 Cranch, 357. 
 
 (d) Marsh, on Ins. 185. 
 
OF PARTICULAR CONTRACTS. 483 
 
 No. 1189, Book 2, part 2, tit. 5, chap. 5, sec. 2, 5 2, art 3. No. 1189. 
 
 storm, this shall not avoid the contract, for it is a 
 rule that what is occasioned by the act of God, cannot 
 be imputed to any man as his fault. (a) 
 
 2. Another excuse for a deviation is the want of 
 necessary repairs. If a ship be reduced to a state that 
 she cannot proceed safely on her voyage without 
 repairs, the captain will be justified in taking her to 
 some port, the least out of his course, where such re- 
 pairs can be had, and procure the necessary repairs to 
 be made as soon as possible. But if part of her cargo 
 must necessarily be taken out, in order to repair the 
 vessel, and such part of the cargo, being damaged, is 
 sold without occasioning any delay to the vessel, it 
 will not avoid the poUcy.(6) 
 
 3. A departure from the usual course for the purpose 
 of rendering succor to a ship in distress, is justified on 
 the ground of necessity. It is a duty which policy as 
 well as humanity imposes on every man who has the 
 means of performing it. But a distinction has been 
 made between a delay to save lives which are in 
 jeopardy, and such a delay to save property. The 
 former is justifiable, the latter is a deviation. (c) 
 
 4. Such a departure to avoid capture or detention is 
 an excusable deviation. It is the interest of both 
 parties to the contract, that the vessel should not be 
 taken, and that she should shun danger where it is 
 apparent; but a mere apprehension of danger, without 
 reasonable evidence of it, will not authorize a devia- 
 tion. ((^) 
 
 5. The inability of the captain or crew to navigate 
 the ship in safety, whether such inability arise from 
 sickness, death, or other cause, so as to render it highly 
 
 (a) Campbell v. Williamson, 2 Bay, 237 ; Delany ti. Stoddard, 1 T. R. 22. 
 
 (b) Kane v. Columbian Ins. Co. 2 Johns. 264. 
 
 (c) The Boston, 1 Sumn. 328 ; The Henry Ewbank, 1 Sumn. 400 ; Lettle 
 V. St. Louis Perpetual Marine, Fire, and Life Ins. Co. 7 Mis. 379. 
 
 (d) Riggin v. Petapsco Ins. Co. 7 Har. & John. 279. See Whitney v. 
 Haven, 13 Mass. 172 ; Suydam v. Marine Ins. Co. 2 John. 138 ; Goyon v. 
 Pleasants, 8 Wash. 0. 0. 241. 
 
484 OF THINGS. 
 
 No. 1190. Book 2, part 2, tit. 5, chap. 5, sec. 2, 4 2, art. 3. No. 1192. 
 
 perilous or impossible to proceed on the voyage, will 
 justify a deviation, for the purpose of obtaining medi- 
 cal assistance or other hands. In this case, however, 
 it must appear that this inability did not arise from 
 the neglect or mismanagement of the owners or the 
 master, (a) 
 
 The mutiny of the crew, when the captain departs 
 from his course by compulsion, will be a justification 
 for his deviation. A departure in this case is as much 
 a matter of necessity, as if the vessel had been forced 
 by the wind and the waves. 
 
 2° Of the effect of a deviation. 
 
 1190. When an underwriter undertakes to insure 
 against certain losses, his contract is definite and dis- 
 tinct ; he engages to insure no other than the voyage 
 described in the policy; if the insured, or his agent, 
 without necessity, depart from the voyage which is the 
 object of the contract, it is no longer the same voyage, 
 and if a loss occur, the insurer cannot be made respon- 
 sible for it, because he never insured the voyage in 
 which it happened. 
 
 1191. The eflfect of the deviation is not to vitiate or 
 avoid the policy ; it simply determines or puts an end 
 to the liability of the underwriters from the time of the 
 deviation. When, therefore, a loss occurs before any 
 deviation has taken place, although the insurer will be 
 discharged from all responsibility for loss which may 
 take place after the deviation, yet he will be liable for 
 the loss sustained before. 
 
 1192. Though the insurer will be discharged from 
 all liability when there has been an unnecessary devia- 
 tion, he will be entitled to retain the whole premium. 
 The insurer is discharged from his liability, when there 
 has been a deviation, not warranted by necessity, not 
 because the risk is increased, but because the insured 
 has, without necessity, substituted another voyage for 
 
 (a) See Williams v. Smith, 2 Gaines, 1. 
 
OF PARTICULAR CONTRACTS. 485 
 
 No. 1193. Boole 2, part 2, tit. 5, chap. 5, se c. 3, ^ 1. No. 1198. 
 
 that which was insured, and thereby varied the risk. 
 The extent of the change is altogether unimportant, 
 the slightest unauthorized deviation changes the voy- 
 age, (a) 
 
 1193. When there has been a deviation, and, before 
 any sinister accident has occurred, the vessel returns 
 to her track, and pursues her course, and then she en- 
 counters perils and is lost, the insurer is not responsi- 
 ble ; and this is so for several reasons : first, because by 
 the unnecessary deviation, the implied condition on the 
 part of the insured, that the vessel should pursue her 
 course, there has been a violation of the contract, and, 
 being once broken by him, it cannot be renewed with- 
 out the consent of the insurer ; secondly, it cannot be 
 known to a certainty that the risk has not been in- 
 creased ; if the vessel had not deviated from her course, 
 she would not have been where she was when the loss 
 occurred, and she might have escaped the danger alto- 
 gether. 
 
 SECTION 3. OF THE EISK. 
 
 1194. Maritime risks are perils which are incident 
 to a sea voyage, (6) or those fortuitous events which 
 may happen in the course of the voyage. (c) It will 
 be proper to inquire into, 1, the nature of the risk 
 usually insured against : 2, its duration. 
 
 4 1. — Of the nature of the risk. 
 
 1195. The risks usually insured against are those 
 occasioned by storms, shipwreck, jettison, prize, pillage, 
 fire, war, reprisals, detention by foreign governments, 
 collision by two ships at sea, whether it result from 
 accident or negligence ; contribution to losses experi- 
 enced for the common benefit, or for expenses which 
 would not have taken place, if it had not been for such 
 
 (a) Natchez Ins. Co. v. Stanton, 2 Smedes & Marsh. 340 ; Martin v. 
 Delaware Ins. Co. 2 Wash. C. C. 254. 
 
 (b) Marsh. Ins. 215. 
 
 (c) Poth. Contr. d'Assiir. n. 49 ; Pard. Dr. Com. n. 770. 
 
486 OF THINGS. 
 
 No. 1196. Book 2, part 2, tit. 5, chap. 5, sec. 3, 53. No. 1198. 
 
 events. These are called perils of the sea. But the 
 insurer may by his special contract limit his responsi- 
 bility for these risks, or insure only against enumerated 
 risks; for the benefit of particular persons, or for whom 
 it may concern. 
 
 1196. The law, founded on reason and public policy, 
 has made some exceptions which require that, in 
 certain cases, men shall not be permitted to protect 
 themselves against some particular perils by insurance; 
 among these are, 
 
 1. That no man can insure any loss or damage 
 proceeding directly from his own fault, (a) 
 
 2. That he cannot insure risks or perils of the sea 
 upon a trade forbidden by the laws. 
 
 3. That he cannot insure the risks excluded by the 
 usual memorandum contained in the policy. (6) 
 
 1197. As the insurance is upon maritime risks, the 
 accidents must have happened on the sea, unless the 
 policy include other risks. The loss by accident 
 which might happen on land in the course of the voy- 
 age, even when the unloading may have been author- 
 ized by the policy, or is required by local regulations, 
 as where they are necessary for sanitary measures, is 
 not borne by the insurer. 
 
 § 2. — Of the duration of the risk. 
 
 1198. The commencement and the end of the risk 
 depend upon the words of the policy. The insurer 
 may take and modify what risks he pleases. The 
 policy may be on a voyage out, or a voyage in, or it 
 may be on part of the route, or for a limited time, or 
 from port to port. 
 
 When a vessel has quit her moorings, in complete 
 readiness for sea, and the master has an actual inten- 
 tion to proceed, she is at sea, or on a passage, within 
 the meaning of the policy. (c) But a vessel moving 
 
 (a) Marsh. Ins. 215 ; Poth. h. t. n. 65; Pardes. h. t. n. 771. 
 
 (b) Marsh. Ins. 221. 
 
 (c) Bowen v. Hope Ins. Co. 20 Pick. 275. 
 
OF PARTICULAR CONTRACTS. 487 
 
 No. 1199. Book 2, part 2, tit. 5, chap. 5, sec. 4, 5, § 1^ No. 1201. 
 
 down a river, has not necessarily sailed on her voy- 
 age ; the quo animo decides the point. («) 
 
 The voyage has not ended until the vessel has ar- 
 rived, that is, till she drops her anchor or is moored. (&) 
 
 SECTION 4. OF THE PREMIUM. 
 
 1199. We have seen that to make a valid insurance 
 there must be a consideration or premium paid by the 
 insurer. The premium is so called because it is to be 
 paid primo or before the contract shall take eflfect.(c) 
 But the premium is not always paid when the policy 
 is underwritten ; for insurances are frequently e£fected 
 by brokers, and open accounts are kept between them 
 and the underwriters, in which they make themselves 
 debtors for all premiums ; and sometimes notes or bills 
 are given for the amount of the premium. 
 
 It is a rule that if the policy has never attached, the 
 insurer has no claim for the premium ; but if once it 
 attaches and he runs any risk, he is entitled to \i.(d) 
 
 SECTION 5. OP THE FORM OF THE CONTRACT OF INSURANCE. 
 
 1200. The contract of insurance is in general made 
 in the same form, which has been established by the 
 wisdom and experience of ages, no deviation from it 
 ought to be allowed under any pretext, as all the 
 terms therein adopted have received the deliberate 
 sanction of the courts. (e) Let us inquire, 1, into the 
 general requisites of a policy; and, 2, into its several 
 parts; 3, their different kinds. 
 
 § 1. — General requisites of a policy. 
 
 1201. The agreement for an insurance must be in 
 writing. (/) 
 
 (a) Dennis v. Ludlow, 2 Caines, 111. 
 
 (b) Gray v. Gardner, 17 Mass. 188 ; Pardes. Dr. Com. n. 778. See Bill 
 V. Mason, 6 Mass. 313. 
 
 (c) Poth. h. t. n. 81 ; Marsh. Ins. 234. 
 
 (d) Cleveland v. Fettyplace, 8 Mass. 392 ; Merchants' Ins. Co. v. Clapp, 
 11 Pick. 56. 
 
 (e) Marsh. Ins. 304, 5. ' 
 (/Cockerill v. Cincinnati Mutual Ins. Co., IG Ohio, 148. 
 
4S8 OF THINGS, 
 
 No. 1202. Book 2, part 2, tit. 5, chap. 5, sec. 5, § 2. No. 1205. 
 
 § 2. — Of the formal parts of a policy. 
 
 1202. The particular requisites of a policy are 
 numerous. They will be here considered in their 
 order. 
 
 1203. — 1. The parties. The policy should state 
 the name of the insurer, and the name of the insured ; 
 but it may be taken in the name of a party, and " for 
 whom it may concern ;"(«) or in the name of A and 
 
 , when it will be considered as if taken for whom 
 
 it may concern. (6) 
 
 1204. — 2. The name of the ship. When an insur- 
 ance is made on the ship it must necessarily identify 
 the vessel which it is meant to insure ; this is done by 
 naming the vessel. When the insurance is on goods, it 
 is usual and requisite to specify in the policy the ship 
 in which they are to be transported, together with the 
 name of the captain. This is necessary, because all 
 ships are not equally good, and the insurer by this 
 means can alone form a correct judgment. It is evident 
 that if one ship be named in the policy, and the goods 
 be sent in another, the policy will not cover them.(c) 
 To prevent loss by any such mistake, it is usual to 
 insert in every policy these words : " or by whatever 
 other name or names the same ship, or the master 
 thereof is, or shall be, named or called ;" so that if the 
 identity of the ship can be proved, and no fraud be 
 meant, a mistake in the name of the ship will not 
 vitiate the contract. 
 
 1205. — 3. The description of the voyc^e. The voyage 
 insured must be accurately described in the policy; 
 namely, the time and place at which the risk is to 
 begin, the place of the ship's departure, the place of 
 her destination, and the time when the risk shall end, 
 whether on the goods or on the ship.((Z) 
 
 (fl) Plemming v. Marine Ins. Co., 4 Whart. 59 ; De BoUe v. Penn. Ins. 
 Co., 4 Whart. 68. 
 
 (b) Burrows v. Turner, 24 Wend. 276. 
 
 (c) Marsh. Ins. 313. 
 
 (d) Marsh. Ins. 321. 
 
OF PARTICULAR CONTRACTS. 489 
 
 No. 1206. Book 2, part 2, tit. 5, chap. 5, sec. 5, } 2. No. 1206. 
 
 The policy should state the place where the mer- 
 chandise has been or should be loaded ; but this rule is 
 modified when the policy is on a voyage from abroad, 
 for it may be good though it omit the name of the 
 ship, or master, or port of discharge, or consignee, or 
 to specify, or designate, the nature or species of the 
 cargo, for all these may be unknown to the insured 
 when he applies for the insurance. (a) But the cargo 
 must be of the same species as that described in the 
 policy. 
 
 In general, the port of destination ought to be men- 
 tioned, but sometimes the voyage is described merely 
 as to time, as for three months ; in that case the place 
 of destination, if required at all, is only to identify 
 the vessel, and to give to the insurer a clearer notion 
 of the risks he has to run. 
 
 The policy should mention all the ports, harbors 
 and havens where the ship may enter and load or un- 
 load. 
 
 1206. — 4. The subject matter of the insurance. The 
 policy must specify the subject matter of the insurance, 
 whether it be goods, ship, freight, respondentia or bot- 
 tomry, securities, or whatever it may be. 
 
 When a ship is the object of the insurance, and not 
 merely the place where the risks occur, as where goods 
 on a certain ship are insured, the name must be cor- 
 rectly mentioned in the policy, for the purpose of indi- 
 cating the vessel, and to prevent fraud. What we 
 have before mentioned, with regard to a mistd,ke in 
 the name of the ship, when it is merely designated as 
 a place where the things at risk are to be placed, does 
 not apply when the policy is on the ship itself (6) 
 
 When goods are the subject matter of the insurance, 
 it is not necessary to designate the different sorts. It 
 
 (a) 3 Boulay Paty, 412 ; Pard. Dr. Com. n. 805, 809 ; 3 Kent, Com. 
 259. 
 (i) Pardes. n. 811. 
 
490 OF THINGS. 
 
 No. 1807. Book 2, pait 2, tit. 5, chap. 5, sec. 5, § 2. No. 12U. 
 
 is usually expressed to be " upon any kind of goods 
 or merchandise." 
 
 1207. — 5. The perils insured, against. The perils 
 against which the insured means to be protected must 
 be distinctly enumerated in the policy ; by the usual 
 form these extend nearly over all that can happen 
 which are insurable, but th^e are some, as we have 
 seen, against which there can be no insurance. 
 
 The policies contain the words " lost or not lost;" 
 the insurer not only undertakes by this to insure 
 against future loss but against those which have 
 already accrued. 
 
 1208. — 6. The clause giving powers to the insured in 
 case of misfortunes. To remove a doubt which formerly 
 existed, a clause is introduced into the policy to autho- 
 rize the insured to take all necessary care of property 
 in case of misfortunes, without prejudice to the in- 
 surance. 
 
 1209. — 7. Promise of the insurers and receipt of the 
 premium. The next clause in the policy is that in 
 which the insurers bind themselves to the insured for 
 the performance of their contract, and confess them- 
 selves paid the consideration or premium by the 
 insured, at the rate specified. 
 
 1210. — 8. The common memorandum. This is intro- 
 duced for the purpose of relieving the insurer from any 
 liability whatever as to some specified articles ; and, 
 of others, not making him responsible, unless the loss 
 exceeds three, and others five per centum, and then 
 only for the excess. 
 
 1211. — 9. The date and subscription. The sum in- 
 sured is, in general, placed in the subscription after the 
 signature, in the underwriter's hand-writing and in 
 words at length, and not in figures. 
 
 The policy should be dated; it is usual for each 
 underwriter to date it immediately after his name, so 
 that a policy may have several dates. 
 
OF PARTICULAR CONTRACTS. 491 
 
 No. 1212. Book 2, part 2, tit. 5, chap. S, sec. 6, 7. No. 1313. 
 
 SECTION 6. OF THE WARRANTIES. 
 
 1212. A warranty is a stipulation or agreement on 
 the part of the insured, in the nature of a condition 
 precedent. It may be affirmative; for example, where 
 the insured undertakes for the truth of some positive 
 allegation, as that the thing insured is neutral property, 
 that the ship is of such a force, that she has sailed and 
 the like ; or it may be promissory, for example, where 
 the insured undertakes to perform some executory 
 stipulation, as, that the ship shall sail by a given day, 
 that she shall depart with convoy, etc. 
 
 Warranties are either express or implied. The for- 
 mer are introduced in the written contract of the 
 parties ; as, that the ship is neutral property. An 
 implied warranty is that which necessarily results from 
 the nature of the contract ; as, that the ship is sea- 
 worthy, that she shall be navigated with reasonable 
 skill and care, that the voyage is lawful and shall be 
 performed according to law, in the usual course, with- 
 out any deviation, etc. 
 
 SECTION 7. — OP REPRESENTATIONS. 
 
 1213. A representation, in insurance, is a collateral 
 statement, either in writing, not inserted in the policy, 
 or by parol, of such facts or circumstances relative to 
 the purposed adventure, as are necessary to be com- 
 municated to the underwriters, to enable them to form 
 a just estimate of the risk. Representations must be 
 exactly true, for, as we have already observed, the 
 contract of insurance requires the most perfect fair- 
 ness, (a) 
 
 (a) When the insured, in a case of fire insurance, made an offer for in- 
 surance in these words, " What premium will you ask to insure the follow- 
 ing property belonging to L. & P. for one year against loss or damage by 
 fire ? On their stone mill four stories high, covered with wood, on an island 
 about one mile from Fredericksburg, in the county of Stafford ; the mill 
 called Elba Mill. Seven thousand are wanted. Not within thirty yards of 
 any other building, except a corn house, which is about twenty yards oflf." 
 The policy which was made in consequence of this offer, states that the 
 
492 OF THINGS. 
 
 No. 1213. Book 2, part 2, tit. 5, chap. 5, sec. 7. No. 1213. 
 
 A representation, like a warranty, may be either 
 affirmative, as where the insurer avers the existence of 
 some fact, which may affect the risk ; or promissory, as 
 when he engages for the performance of something 
 executory. 
 
 There is a material diflference between a representa- 
 tion and a warranty. A warranty being a condition 
 upon which the contract is to take effect, is always a 
 part of the written policy, and must appear on its 
 face •,{a) whereas a representation is only a matter of 
 collateral information or intelligence on the subject of 
 the voyage insured, and makes no part of the policy. 
 Again, a warranty, being in the nature of a condition 
 precedent, must be strictly and literally complied with; 
 but it is sufficient if the representation be true in sub- 
 stance. Whether a warranty be material to the risk 
 or not, the insured stakes his claim to indemnity upon 
 its precise truth, if it be affirmative, or upon the exact 
 performance of it, if executory. But if it be made 
 without fraud, and be not false in any material point, 
 or if it be substantially, though not literally fulfilled, 
 it is sufficient. A false warranty avoids the policy, as 
 being a breach of the condition upon which the con- 
 tract is to take effect, and the insurer is not liable for 
 any loss, though it do not happen in consequence of the 
 breach of the warranty ; a false representation is no 
 breach of the contract, but if material, avoids the policy 
 on the ground of fraud, or at least because the insurer 
 has been misled by it. 
 
 underwriters insure L. & P. against loss or damage by fire, to the amount 
 of seven thousand dollars on their mill, etc. On a suit on this policy, it ap- 
 peared that instead of such an estate in the property as the representation 
 justified the insurers in expecting, the plaintiffs held only one half of one- 
 third, under a lease for three lives, renewable forever, and one half of the 
 other two-thirds as mortgagees ; that the other moiety was held under a 
 contract, the terms of which had not been complied with ; and which, if 
 complied with, would give them a title to two-thirds as mortgagees. It 
 was held, that the representation did not truly state the interest the insured 
 had in the property. Columbian Insurance Company v. Lawrence, 2 Pet. 
 25, 47, 49. 
 
 (a) Marsh. Ins. c. 9, ^ 2. 
 
OF PARTICULAR CONTRACTS. 493 
 
 No. 1214. Booka, part 2, tit. 5, chap. 5, sec. S, 9. No. 1215. 
 
 SECTION 8. OP CONCEALMENT. 
 
 1214. A concealment in insurance, is the unlawful, 
 suppression of any fact or circumstances which the in- 
 sured is bound to disclose to the insurer. This, like 
 any other fraud, avoids the contract d) initio, upon 
 principles of natural justice. 
 
 It does not matter whether the concealment be in- 
 tentional or the mere effect of negligence, accident, 
 inadvertence, or mistake ; if material, is is equally 
 fatal to the contract, as if it were intentional and 
 fraudulent. 
 
 The insured is required to disclose all the circum- 
 stances which are within his own knowledge only, and 
 which increase the risk. A neglect to do this will 
 avoid the policy ; as, where the concealment was that 
 the assured had heard that a vessel like his was 
 taken. (a) And in a case where the assured had infor- 
 mation of " a violent storm," about eleven hours after 
 his vessel had sailed, and represented there " had been 
 blowing weather and severe storms on the coast after 
 the vessel had sailed," but without any reference to 
 the particular storm, it was held that this was such a 
 concealment as violated the policy. (6) 
 
 But although the insured is thus bound to disclose 
 all he knows, he is not required to state general cir- 
 cumstances which apply to all policies of a particular 
 description, notwithstanding they may greatly increase 
 the risk. 
 
 SECTION 9. — OF THE LOSS. 
 
 1215. A loss in insurance, is the injury or damage 
 sustained by the insured, in consequence of the hap- 
 pening of one or more of the accidents or misfortunes 
 against which the insurer, in consideration of the pre- 
 mium, has undertaken to indemnify the insured. 
 
 (a) 1 Bl. R. 594 ; 3 Burr. 1909. 
 (i) Ely V. Hallett, 2 Caines, R. 57. 
 
494 OF THINGS. 
 
 No. 1216. Books, part 2, tit 5, chap. S, sec. 9. No. 1216. 
 
 These accidents or misfortunes, or perils, as they 
 are usually denominated, are all distinctly enumerated 
 in the policy ; these are — " Touching the adventures 
 and perils which we the assurers are contented to bear 
 and take upon us in this voyage, they are of the seas, 
 men of war, fire, enemies, pirates, rovers, thieves, 
 jettisons, letters of mart and counter-mart, surprisals, 
 taking at sea, arrests, restraints and detainments of 
 all kings, princes and people, of what nation, condition 
 or quality soever, barratry of the master and mariners ; 
 and of all other perils, losses and misfortunes, that 
 have* or shall come, to the hurt, detriment or damage 
 of the said goods and merchandises, and ship, etc., 
 or any part thereof, without prejudice to this in- 
 surance." No loss, however great or unforeseen, can 
 be a loss within the policy, unless it be the direct 
 and immediate consequence of one or more of these 
 perils. (a) 
 
 No evidence can be given of any loss unless it be the 
 immediate consequence of some perils insured against; 
 that which is only a remote consequence of such peril, 
 is not within the policy. If, therefore, the plaintiff 
 upon a policy on slaves, declares for a total loss by 
 perils of the sea, he cannot give in evidence a loss oc- 
 casioned by throwing slaves overboard on account of a 
 scarcity of water, occasioned by the- captain's mis- 
 taking his course, nor a loss by the death of slaves 
 who perish for want of proper food, occasioned by ex- 
 traordinary delay in the voyage, arising from bad and 
 tempestuous weather. (6) 
 
 1216. Every loss is either total or partial. The 
 term totd loss is understood in two different senses, 
 the natural and legal. In its natural sense it signifies 
 the complete and absolute destruction of the thing 
 insured. In its legal sense, it means not merely the 
 
 (a) Marsh. Ins. B. 1, c. 12. 
 
 (b) Marsh, on Ins. 717. See Magoun v. New Eng. Mar. Ins. Co., 1 Story, 
 157 ; Potter v. Ocean Ins. Co., 3 Sumner, 27. 
 
OF PARTICULAR CONTRACTS. 495 
 
 No. 1217. Book 2, part 2, tit. 5, chap. 5, sec. 9. No. 1218. 
 
 entire destruction or deprivation of the thing insured, 
 but also such damage to it, though it specifically remain, 
 as renders it of little or no value to the owner, (a) A 
 loss is deemed total, if, by the happening of any of the 
 misfortunes insured against, the voyage be lost, or be 
 not worth pursuing, and the projected adventure frus- 
 trated ; or if the value of what be saved, be less than 
 the freight. (6) 
 
 1217. A partial loss, is any damage short of, or not 
 amounting to a total loss ; for if it be not the latter, it 
 must be the former. Partial losses are sometimes de- 
 nominated average losses, because they are often in the 
 nature of those losses, which are the subject of average 
 contributions ; and they are distinguished into general 
 and particular averages. 
 
 1218. Losses are occasioned by a variety of ways, 
 but most usually by the following: 
 
 1 . By perils of the sea. This is the generic name 
 for all those losses which arise from natural accidents 
 peculiar to the sea ; but in more than one instance they 
 have been held to extend to events not attributable to 
 natural causes. (c) 
 
 2. By collision, which takes place when two ships 
 or other vessels run foul of each other, or when one 
 runs foul of the other. In all cases, collision, when there 
 is no fault on either side, is deemed a peril of the sea, 
 within the meaning of the policy of insurance. (c?) 
 
 3. ~Bj fire. The insurer is liable for the loss of a 
 vessel by fire, though it may have been occasioned by 
 the negligence of the master and crew.(e) 
 
 4. By capture, which is the taking of property by 
 one belligerent from another, according to the laws 
 and usages of war. 
 
 (a) Wood V. Lincoln and Kennebeck Ins. Co., 6 Mass. 479 ; Peel v. Suf- 
 folk Ins. Co., 7 Pick. 254; Fuller v. McCall, 2 Dall. 219. 
 
 (b) See Wood v. Lincoln and Kennebeck InS. Co., 6 Mass. 479 ; Peale 
 V. Suffolk Ins. Co., 7 Pick. 254 ; Hall v. Franklin Ins. Co., 9 Pick. 466. 
 
 (c) Garrigues v. Coxe, 1 Binn. 592 ; 3 Kent, Com. 300, 4th ed. 
 
 id) Hale V. Wash. Ins. Co., 2 Story, R. 176 ; Peters v. The Warren Ins. 
 Co., 3 Sumner, 389 ; S. C. 14 Pet. 99. 
 (e) Waters v. Merchants' Ins. Co., 11 Pet. 213. 
 
496 OF THINGS. 
 
 No. 1218. Books, parts, tit. 5, chap. 5, sec. 9. No. 1218. 
 
 5. By detention of princes. By the terms of the 
 policy, the insurer is liable for all loss occasioned by 
 " arrest or detainments of all tings, princes and peo- 
 ple, of what nation, condition or quality soever."(fl!) 
 
 6. By barratry, which is the act of the master or 
 mariners, committed with fraudulent intent, contrary 
 to their duty as such, to the prejudice of the owners of 
 the ship. (6) 
 
 7. "By average and contribution. Average is a term 
 used in commerce to signify a contribution made by 
 the owners of the ship, freight or goods on board, in 
 proportion to their respective interests, toward any 
 particular loss or expense sustained for the general 
 safety of the ship and cargo, to the end that the par- 
 ticular loser may not be a greater sufferer than the 
 owner of the ship and the other owners of the goods on 
 board, (c) 
 
 8. By salvage. Salvage loss is understood to be the 
 difference between the amount of salvage, after de- 
 ducting the charges, and the original value of the 
 property, ((f). 
 
 9. By the death of animals. If animals, such as 
 horses, cattle, or beasts or birds of curiosity, be insured 
 in their passage by sea, their death, occasioned by 
 tempests, by the shot of an enemy, by jettison in a 
 storm, or by any extraordinary accident, occasioned by 
 the perils enumerated in the policy, is a loss for which 
 the underwriters are liable. Not so, if it be occasioned 
 by mere disease or natural death. 
 
 10. By piracy. By this term is understood a rob- 
 bery or forcible depredation on the high seas, without 
 lawful authority, done animo furandi, in the spirit and 
 
 (a) Marsh. Ins. B. 1, c. 12, s. 5. 
 
 (A) Emerig. torn. i. p. 366 ; Merlin. Rep. h. t. ; Koccus, h. t. ; Abbott on 
 Shipp. 167, n. 1 ; Crousillat v. Ball, 4 Dall. 294. 
 
 (c) Marsh. Ins. B. 1, o. 12, s. 7. 
 
 [d) SteY. on Av. c. 2, s. 1. 
 
OF PARTICULAR CONTRACTS. 497 
 
 No. 1219. Book 2, part 2, tit. 5, chap. 5, sec. 10. No. 1221. 
 
 intention of universal hostility. («) A capture by 
 pirates is a loss within the policy. 
 
 SECTION 10. OF ABANDONMENT. 
 
 1219. When the property insured has been lost, or 
 so deteriorated that it cannot be used by the owner to 
 advantage, he may in many cases abandon the pro- 
 perty to the insurer, and look to him as for a total loss. 
 An abandonment, in insurance, is the act by which the 
 insured relinquishes to the insurer all the property to 
 the thing insured. No particular form is required to 
 make such an abandonment, nor need it be in writing ; 
 all that is necessary is, that it be explicit and abso- 
 lute, and it must state the reasons upon which it is 
 founded. (6) It must be made in reasonable time after 
 the loss,(c) unless prevented by a fortuitous event. (tf) 
 
 1220. Every case of loss will not authorize an aban- 
 donment. In the following cases it may be made : 
 when there is a total loss ; when the voyage is lost or 
 not worth pursuing, by reason of the perils insured 
 against ;(e) or if the cargo be so damaged as to be of 
 little value ; or where the salvage is very high, and 
 further expense is required, and the insurer will not 
 engage to bear it ; or if what is saved is of less value 
 than the freight ; or where the damage exceeds one 
 half of the value of the goods insured ;(/) or when the 
 property is captured, or even detained hj an indefinite 
 embargo ; and in cases of a like nature, (g) 
 
 1221. When legally made, the abandonment trans- 
 fers from the insured to the insurer the property in the 
 
 (a) United States v. Smith, 5 Wheat. 153 ; United States v. Pirates, 5 
 Wheat. 184 ; United States v. TuUy, 1 Gallis. 247 ; United States v. Jones, 
 3 Wash. 0. C. 209. 
 
 ib) Suydam v. Mar. Ins. Co., 1 John. 181 ; Petapsco Ins. Co. v. South- 
 gate, 5 Pet. 604; King v. Del. Ins. Co., 2 Wash. C. C. 300. 
 
 (c) Livermore v. Newburyport Ins. Co., 1 Mass. 264 ; Smith v. Newbury- 
 port Ins. Co., 4 Mass. 668 ; Bell v. Beveridge, 4 Ball. 272. 
 
 Id) McOalmont v. Margatroyd, 3 Yeates, 27. 
 
 (e) Fuller V. MoCall, 1 Yeates, 464 ; S. C. 2 Dall. 219. 
 
 (/) Wood «. Lincoln and Kennebeok Ins. Co., 6 Mass. 479. 
 
 [g) Levering v. Mercantile Ins. Co., 12 Pick. 348. 
 
 Vol. I. 32 
 
498 OF THINGS. 
 
 No. 1222. Book 2, pan 2, tit. 5, chap. 5, sec. 11. No. 1285. 
 
 thing insured, and obliges him to pay to the insured 
 what he promised him by the contract of insurance. (a) 
 
 SECTION 11. OP ADJUSTMENT. 
 
 1222. When a loss has occurred, the amount must 
 be ascertained so that a settlement may be made ; this 
 is done by an adjustment. The adjustment of a loss 
 is the settling and ascertaining the amount of the in- 
 demnity which the insured, after making all proper 
 allowances, is entitled to receive, and the proportion 
 of this which each underwriter is liable to pay, under 
 the policy ; or it is the amounts of the loss as settled 
 between the parties to a policy of insurance. 
 
 1223. The first thing to be considered, is the quan- 
 tity of damages for which the underwriters are liable. 
 When the loss is total, and the policy is a valued one, 
 the insured is entitled to receive the whole sum in- 
 sured, subject to such deductions as may have been 
 agreed upon by the policy, to be made in case of 
 loss. (6) 
 
 1224. The quantity of damages being known, the 
 next point to be settled is, by what rule this shall be 
 appreciated. The price of a thing does not afford a 
 just criterion to ascertain its true value. It may have 
 been bought very dear or very cheap. The circum- 
 stances of time and place cause a continual variation 
 in the price of things. For this reason, in cases of 
 general average, the things saved contribute, not ac- 
 cording to prime cost, but according to the price for 
 which they may be sold at the time of settling the 
 average, (c) 
 
 1225. The eifect of an adjustment is to fix _ 
 facie, what is due by the insurer to the insured. ((f) 
 
 [a) Marsh. Ins. 559 ; Boulay Paty, Dr. Com. Maritime, tit. 11, torn. 4, 
 p. 215 ; Pardes. Dr. Com. n. 836, et seq. 
 (h\ Kane v. Com. Ins. Co., 8 John. 229. 
 
 (c) Snell V. Ins. Co., 4 Dall. 430. See Suydam v. Marine Ins. Co., 2 
 John. 138 ; Lawrence t>. New Yorli Ins. Co., 3 John. Cas. 217. 
 
 (d) Pacier v. Hallett, 2 John. Cas. 233. 
 
OF PARTICULAR CONTRACTS. 499 
 
 No. 1226. Book 2, part 2, tit. 5, chap. 6. No, 1231. 
 
 SECTION 12. OF THE DIFFERENT KINDS OF POLICIES. 
 
 1226. When considered with regard to the interest 
 insured, policies are distinguished into interest and 
 wager policies ; when with the amount of interest, into 
 open and valued. 
 
 1227. An interest policy, is where the insured has a 
 real, substantial, assignable interest in the thing in- 
 sured, in which case only it is a contract of indemnity. 
 This interest may consist in the ship, goods, freight, 
 and such like valuable things. 
 
 1228. A wager policy, is a pretended insurance, 
 founded on an ideal risk, where the insured has no in- 
 terest in the thing insured, and can therefore sustain 
 no loss by the happening of any of the misfortunes 
 insured against. These policies are unlawful. 
 
 1229. An open policy, is where the amount of the 
 interest of the insured is not fixed by the policy, but 
 is left to be ascertained in case of loss. 
 
 1230. A valued policy, is where a value has been set 
 on the ship or goods insured, and this value has been 
 inserted in the policy in the nature of liquidated dam- 
 ages, to save the necessity of proving it in case of loss. 
 
 CHAPTER VI.— OF LIFE INSURANCE. 
 
 1231. The insurance of the life of a person is a 
 hazardous contract by which the insurer, in considera- 
 tion of a certain premium, either in a gross sum or 
 periodical payments, undertakes to pay the person for 
 whose benefit the insurance is made, a stipulated sum, 
 or annuity equivalent, upon the death of the person 
 whose life is insured, whenever this shall happen, if 
 the insurance be for the whole life, or in case this shall 
 happen within a certain period, if the insurance be for 
 a limited time. 
 
 The principal points deserving examination, are, 
 1, the interest; 2, the warranty; 3, the risk; and, 
 4, the settling of the loss. 
 
500 OF THINGS. 
 
 No. 1232. Book 2, part 2, tit. 5, chap. 6, sec. 1, 2, 3. No. 1234. 
 
 SECTION 1. THE INTEREST. 
 
 1232. A man may insure not only his own life, for 
 the benefit of his heirs and creditors, and assign the 
 benefit of his insurance to others having thus or other- 
 wise an interest in his life ; but he may insure the life 
 of another in which he may ie interested. (a) 
 
 SECTION 2. — OF THE REPRESENTATION. 
 
 1233. The insured is required to make a representa- 
 tion or declaration, previous to the policy being issued, 
 of the age and state of health of the person whose life 
 is insured ; and the party making it is bound to the 
 truth of it. (&) 
 
 SECTION 3. OP THE RISK. 
 
 1234. In almost every life policy there are several 
 exceptions, some of them applicable to all cases; others 
 to the case of the insurance of one's own life. The 
 principal of these exceptions are, 
 
 1. Death abroad or at sea. In general the policy 
 provides that the person whose life is insured shall not 
 go within certain districts during certain seasons of the 
 year. 
 
 2. Entering into the naval or military service, with- 
 out the previous consent of the insurer. 
 
 3. Death by suicide, or the act of malicious self- 
 murder. In England it has been holden that when a 
 man's life was insured, and the policy contained a pro- 
 viso that " every policy effected by a person on his or 
 her own life should be void, if such person should com- 
 mit suicide, or die by duelling or the hands of justice ;" 
 the terms of the condition included all acts of volun- 
 tary self-destruction, whether the insured, at the time 
 the act was committed, was or was not a moral 
 
 (a) Goodsall v. Boldero, 9 East, 72 ; Lord v. Ball, 12 Mass. 115. 
 \b) See Ross v. Bradshaw, 1 W. Bl. 312 ; Watson v. Mainwaring, 4 
 Taunt. 763. 
 
OF PARTICULAR CONTRACTS. 501 
 
 No. 1235. Book a, part 2, tit. 5, chap. 7, sec. 1. No. 1237. 
 
 responsible agent, (a) In New York, on the contrary, 
 it has been decided that a clause in a life policy, avoid- 
 ing the insurance, if the assured " die by his own 
 hands," imports a criminal self-destruction, and does 
 not include death by drowning one's self, the insured 
 being insane at the time. (6) 
 
 4. Death by duelling. 
 
 5. Death by the hands of justice. 
 
 When the insurance is on another's life, the last 
 three exceptions do not, in general, apply. 
 
 SECTION 4. OF THE ADJUSTMENT. 
 
 1235. Inasmuch as the loss must always be total, 
 the full sum insured must be paid. It is to be observed 
 that unless the death occurs during the time for which 
 the insurance was effected, the insurer will not be re- 
 sponsible, although the death wound may have been 
 received during that period. 
 
 CHAPTER vn.— or INSURANCE AGAINST FIRE. 
 
 1236. The next kind of hazardous contracts is in- 
 surance against loss occasioned by fire. This is a con- 
 tract by which the insurer, in consideration of a certain 
 premium received by him, either in a gross sum or by 
 annual payments, undertakes to indemnify the insured 
 against all loss or damage which he may sustain to a 
 certain amount, in liis house or other buildings, stock, 
 goods or merchandise mentioned in the policy, by fire, 
 during the time agreed upon. 
 
 The principal points deserving examination, are, 1, 
 the interest ; 2, the nature of the loss insured against, 
 or the risk ; 3, the warranties and representations ; 
 and 4, the adjustment of the loss. 
 
 SECTION 1. THE INTEREST. 
 
 1237. It is obvious that the insured must have an 
 
 (a) Clift V. Schwabe, 3 Man. Gr. & Soott, 437. 
 (h) Breastead v. Farmers' Loan Co., 4 Hill, 73. 
 
502 OF THINGS. 
 
 No. 1238. Book2, part 2, tit. 5, chap. 7, sec. 2. No. 1239. 
 
 interest in the thing insured ; if it were otherwise, he 
 would be tempted to set fire to the thing insured, and 
 thereby not only cheat the insurer, but endanger the 
 whole community. It is not, however, requisite that 
 the insured should be the absolute owner of the thing 
 insured ; one who has a qualified property in it, as a 
 bailee, or has an interest, as a creditor, may lawfully 
 make an insurance, provided that the nature of the 
 property be distinctly specified, and that all the in- 
 surances taken together upon the same property, shall 
 not exceed its full value. (a) 
 
 SECTION 2. — OF THE EISKS AND LOSSES mSUEED AGAINST. 
 
 1238. These are, all losses or damage by fire, during 
 the term of the policy, to the things insured. To re- 
 cover for a loss by fire, there must be an actual fire or 
 ignition. It is not sufficient that there has been an 
 injurious increase of heat, while nothing has taken fire 
 which ought not to be on fire. (6) 
 
 1239. Generally there is an exception in the policy, 
 as to fire occasioned " by invasion, foreign enemy, or 
 any military or usurped power whatsoever," and in 
 some there is a further exception of riot, tumult or 
 civil commotion. In England, Lord C. J. Wilmot, 
 Mr. Justice Clive, and Mr. Justice Bathurst, against 
 the opinion of Mr. Justice Gould, determined that the 
 true import of the words usurped power in the proviso, 
 was an invasion from abroad, or an internal rebellion, 
 when armies are drawn up against each other, when 
 the laws are silent, and when the firing of towns 
 becomes unavoidable ; but that those words could not 
 mean the power of a common mob.(c) It has been 
 holden that by civil commotion is meant " an insurrec- 
 tion of the people for general purposes," though it 
 
 (a) See Illinois Mutual Fire Ins. Co. v. Marseilles Man. Co., 1 Gilm. 236 ; 
 Gilbert v. North Amer. Ins. Co., 23 Wend. 43 ; Catron v. Tennessee Ins. 
 Co., 6 Humph. 176 ; Col. Ins. Co. of Alexandria i;. Lawrence, 2 Pet. 25, 48. 
 
 (b) Austin v. Drewe, 4 Camp. 360. 
 
 (c) Marsh. Ins. 390. 
 
OF PARTICULAR CONTRACTS. 503 
 
 No. 1240. Book 2, part 2, tit. 5, chap. 7, sec, 3. No 1242. 
 
 may not amount to a rebellion, where there is an 
 usurped power. (a) 
 
 1240. The loss must be a loss within the policy, 
 that is, within the time covered by the policy. It 
 would seem, 1, that the insurance commences from the 
 moment of paying the premium, although the policy 
 be not delivered till some time afterward; (6) 2, that 
 until the premium has been paid, there is no insurance, 
 unless specially agreed upon. 
 
 1241. The insurers are liable, not only for loss by 
 burning, but for all damages and injury, and reason- 
 able charges attending the removal of articles, though 
 never touched by the fire. And they will be equally 
 responsible, if the building insured has been blown up 
 by order of the public authorities, to prevent the spread 
 of a conflagration, if it would have been destroyed by 
 fire.(c) 
 
 Insurers against fire are not liable for remote losses, 
 but only for those which are immediate and direct. (c^) 
 
 SECTION 3. OF WARRANTY AND REPRESENTATION. 
 
 1242. In speaking of warranties and representations 
 in cases of marine insurances, we have pointed out the 
 difierence between them. A warranty is a part of the 
 contract, and whether material or not, renders it void, 
 if false. Warranties are not only express, but implied. 
 The description of different classes of property, accord- 
 ing to the risk, as contained in the proposals attached 
 to the policy, form the subject of an implied warranty 
 on the part of the insured ; for when the property is 
 given up as corresponding with the description of a 
 particular class of property, and it truly does not so 
 correspond, the policy is void.(ej 
 
 (a) Marsh. Ins. 793. 
 
 (b) Lightbody v. North Amer. Ins. Co., 23 Wend. 18 ; Hamilton v. Ly- 
 coming Ins. Co., 5 Penn. St. R. 339. 
 
 (c) City Fire Ins. Co. v. Corlies, 21 Wend. 367. 
 
 (d) Hillier v. Alleghany Mutual Ins. Co., 3 Penn. St. R. 470. 
 
 (e) Newcastle Fire Ins. Co. v. McMorran, 3 Dow, 255 ; Burritt v. Sara- 
 toga Mutual Ins. Co., 5 Hill, 188 ; Col. Ins. Co. of Alexandria v. Lawrence, 
 2 Pet. 25, 48. 
 
504 OF THINGS. 
 
 No. 124S. Book 2, part 2, tit. 5, chap. 8, sec. 1. No. 1246. 
 
 1243. The representation of facts must be true; a 
 policy will be avoided either by dlegatio fdsi, or sup- 
 pressio veri.{a) There must be the most perfect fair- 
 ness in disclosing every circumstance material to the 
 risk ; but the concealment of a fact which could, in no 
 event, increase the risk, will not avoid a policy.(6) 
 The insured should frankly disclose every reasonable 
 grounds of apprehension whi6h he may entertain. (c) 
 
 SECTION 4. — OP SETTLING AND ADJUSTING THE LOSS. 
 
 1244. The loss by fire is seldom a total loss, and 
 the valuation in the policy is rather the fixing of a 
 maximum, beyond which the underwriters are not to 
 be liable, than the conclusive ascertainment of the 
 value to be replaced. When a fire happens, there is 
 an inquiry into the amount of the loss, the insured 
 being bound to give the most satisfactory proof he 
 can be expected to possess, of the true amount of the 
 injury. 
 
 We have seen that in marine policies, where there 
 is a total loss, there is an abandonment of what may 
 chance to be saved. A settlement of a loss by fire, is 
 made on the principles of a particular average, and 
 the insurer is not entitled to the property which may 
 happen to be saved. (J) 
 
 CHAPTER Vni.— OF BOTTOMRY AND RESPONDENTIA. 
 
 1245. These two contracts, sometimes denominated 
 maritime loans, form another class of hazardous con- 
 tracts. 
 
 SECTION 1. — OP BOTTOMRY. 
 
 1246. Bottomry is a contract in the nature of a 
 mortgage, by which the ship owner, or the master on 
 his behalf, pledges the keel or bottom of the ship, pars 
 
 (a) Ingraham v. South Car. Ins. Co., 3 Brev. 522. 
 
 (b) Lexington Fire, etc. Co. v. Paver, 16 Ohio, 324. 
 
 (c) Bufe V. Turner, 6 Taunt. 338. 
 
 {d) Liscom V. Boston Mutual Fire Ins. Co., 9 Mete. 205. 
 
OF PARTICULAR CONTRACTS. 505 
 
 No. 1247. Book 2, part 2, tit. 5, chap. 8, sec. 1. No. 1247. 
 
 pro toto, as security for money which he borrows for 
 the use of the ship, in contemplation of a particular 
 voyage, or for a particular and fixed period of time; 
 and it is stipulated that if the ship should be lost in 
 the course of the voyage or during that time, by any 
 of the perils enumerated in the contract, the lender 
 shall lose his money ; but if the ship should arrive in 
 safety, then he shall receive back his principal, and 
 also the interest agreed upon, which is generally called 
 marine interest, however this may exceed the usual 
 interest for the use of money. (a) 
 
 1247. There is much resemblance between bot- 
 tomry and insurance. In one, the lender takes the 
 risks, in the other the insurer. In one, the profit, in 
 the other the premium, are the considerations for the 
 maritime risks, which are supported upon the same 
 principle, and may be modified in the same manner. 
 The amount of these profits and of this premium is 
 lower or higher, according to the duration and the 
 nature of the risks and of the agreement. Neither 
 have any effect, unless the objects which are bound 
 for the loan, or which have been insured, have been 
 exposed to maritime risks, which the same circum- 
 stances and the same events cause to begin and end. 
 
 If these contracts resemble each other, there are 
 also many differences between them. In bottomry 
 the lender actually furnishes a certain sum of money; 
 in insurance, the insurer furnishes nothing; on the 
 contrary, he receives a premium, which is frequently 
 paid to him at the time of the agreement, but which 
 when it is not paid in cash is a claim which he may 
 assign, or for which he may procure a guarantee. In 
 bottomry there must be things which may be given in 
 pledge ; in insurance all that is required is the possi- 
 bility of a loss. 
 
 Bottomry differs from a simple loan. In a loan, the 
 money is at the risk of the borrower, and must be 
 
 (a) The Draco, 2 Sumner, 157. 
 
506 OF THINGS. 
 
 No. 1248. Book 2, part 2, tit. 5, chap. 8, see. 1, J 1, 3, 3. No. 1250. 
 
 paid at all events; in bottomry the money. is at the 
 risk of the lender during the voyage. Upon a loan 
 only lawful interest can be charged ; upon bottomry 
 any interest may be legally reserved which the parties 
 agree upon. 
 
 The definition of bottomry sufficiently shows that 
 this contract cannot subsist if there is not, 1, a thing 
 loaned ; 2, a ship on which the loan is made ; 3, if the 
 ship be not exposed to maritime risks; 4, if the lender 
 has not the right to a profit equivalent to the interest 
 of his capital and the risks he runs. 
 
 § 1. — Of the things to be loaned. 
 
 1248. Though usually a sum of money is the thing 
 loaned, yet other things may be loaned; but in all 
 cases the borrower must acquire a title to them, for 
 otherwise the contract would change its natuife, as for 
 example, if only the use of a thing were loaned, for 
 then the borrower would never have owned the 
 property. 
 
 § 2. — Of the thing pledged in bottomry. 
 
 1249. In the contract of bottomry the ship, her 
 tackle and apparel, are the objects on which the loan is 
 made. When the loan is made on other property, 
 exposed to maritime risks, the contract is called 
 respondentia. 
 
 § 3.— Of tRe risks. 
 
 1250. By risk is understood the danger to which a 
 thing is exposed. Maritime risks are perils which are 
 incident to a sea voyage, (a) or those fortuitous events 
 which may happen in the course of the voyage. (6) 
 
 It is essential that the lender should run the risks 
 of the things on which the loan is made : if a contract 
 were made by which he should be relieved from them, 
 it would be no longer bottomry, but a simple loan. 
 
 [a] 1 Marsh, on Ins. 215. 
 
 (J) Poth. Contr. d'Assur. n. 49 ; Pardes. Dr. Com. n. 770. 
 
OF PARTICULAR CONTRACTS. 507 
 
 No. 1251 . Book2, part 2, tit. 5, chap. 8, sec. 1, §4, 5, art. 1,2. No. 1254. 
 
 The risks the lender runs are generally the same 
 for which the insurer is liable. But the parties may- 
 extend them beyond these limits. 
 
 § 4. — Of maritime profits. 
 
 1251. There can be no contract of bottomry, if the 
 borrower is not bound to pay to the lender, besides the 
 thing loaned, maritime profits for the risks he has taken 
 upon himself. If the contract did not contain such a 
 clause it would be a kind of gift in case of a sinister 
 event, and a simple loan in case of a successful 
 result, (a) 
 
 This profit is usually fixed in a certain sum of 
 money, but it may be of any thing else, even a part of 
 the profits arising from the transaction ; but this would 
 rather be a partnership than the contract of bottomry. 
 
 § 5. — Of the form of the contract of bottomry. 
 
 1252. The form of the contract is either by bond, 
 or bill of bottomry. The contract should state, 1, the 
 sum loaned, and at what interest or maritime profit ; 
 2, the subject upon which the loan is made ; 3, the 
 name of the vessel and of the captain ; 4, those of the 
 lender and borrower ; 5, the description of the voyage, 
 its commencement and termination. 
 
 Jlrt. 1. — The sum loaned and at what interest. 
 
 1253. To prevent uncertainty, the sum loaned and 
 the maritime interest to be paid, must be specially 
 stated ; besides, when the loan is not money, it is re- 
 quired to know its value in order to return it. 
 
 Art. 2.— Of the pledge. 
 
 1254. The simplest way of ascertaining this is to 
 describe the thing, so that no mistake can be made in 
 relation to it. In respondentia this is still more neces- 
 sary, for the pledge may be of any kind of personal 
 property in possession. 
 
 (a) See the Mary, Paine, 671. 
 
508 OF THINGS. 
 
 No. 1255. Book 2, part 2, tit. 5, chap. 8, sec. 1, §5, art. 3, 4. No. 1256. 
 
 Art. 3. — Of the names of the ship and of the captain. 
 
 1255. When the ship is the thing pledged, as in 
 bottomry, it is indispensable that its name should be 
 properly stated ; when it is merely the place in which 
 the pledge is to be found, as in respondentia, it should 
 also be stated, but a mistake in this case would not be 
 fatal. The name of the q^aptain should always be 
 mentioned. 
 
 Jlrt. 4. — The names of the lender and borrower. 
 
 1256. No contract can have any effect, if the par- 
 ties are unknown. In the contracts of bottomry and 
 respondentia, it is the more necessary they should be 
 stated, because not only the owner of the property, 
 but the master of the vessel may enter into the con- 
 tract. But with regard to the rights of the latter there 
 are many exceptions. * 
 
 1. The master who hypothecates the ship must 
 have been appointed by the owner ; if, for example, 
 before the loan was made the captain had resigned his 
 command, and another had succeeded him, an hypothe- 
 cation by the latter does not bind the owner, (a) 
 
 2. The master cannot borrow in the port where the 
 owner resides. (6) 
 
 3. Nor in any other place, in any case, except one 
 of great necessity, and when he has no other means 
 of relief ;(c) nor when he has goods or money of his 
 own.{d) And the lender is required to show that 
 advances were required to effect the object of the 
 voyage, or to insure the safety of the ship.(e) 
 
 4. The master cannot hypothecate the ship for 
 prior advances, not made on the faith of such 
 security. (/) 
 
 (a) "Walden v. Chamberlain, 3 Wash. 0. 0. 290. 
 
 (h) Sloan V. Ship A. E. I., Bee, 250 ; Turnbull v. TheBnterpise, Bee, 345. 
 
 (c) Tunno v. The Mary, Bee, 120 ; Patton v. The Randolph, Gilpin, 457. 
 
 (d) Oupicino v. Perez, 2 Dall. 195 ; The Pacliet, 3 Mason, 255. 
 
 (e) Putnam v. The P0II7, 157 ; The Golden Rose, Bee, 131 ; The Aurora, 
 1 Wheat. 96. 
 
 (/) 3 Mason, 255 ; 3 Wash. 0. 0. 290 ; 1 Wash. 0. C. 293 ; 1 Wheat. 96. 
 
OF PARTICULAR CONTRACTS. 509 
 
 No. 1257. Book 2, part 2, tit. 5, chap. 9, sec. 1. No. 1261. 
 
 Art. 5. — Of the description of the voyage, or the term for which 
 the loan is made. 
 
 1257. A loan may be made either for a particular 
 voyage, or for a definite time, or until the happening 
 of an event; the parties may agree as to this, and 
 their contract ought to be so expressed. 
 
 SECTION 2. — OF RESPONDENTU. 
 
 1258. Respondentia is a loan of money on goods 
 laden on board of a ship, which in the course of the 
 voyage must, from their nature, be sold or exchanged, 
 on maritime interest, upon this condition, that if the 
 goods should be lost in the course of the voyage, by 
 any of the perils enumerated in the contract, the 
 lender shall lose his money ; if not, that the borrower 
 shall pay him the sum borrowed, with the interest 
 agreed upon. 
 
 1259. The contract is called respondentia, because 
 the money is lent on the personal security of the bor- 
 rower. It dtfiers from bottomry, principally in the 
 following circumstances. Bottomry is a loan on the 
 ship, respondentia on the goods. The money is to be 
 repaid to the lender, with maritime interest, in the 
 one case, upon the arrival of the ship, and of the 
 goods, in the other. In all other respects the con- 
 tracts are nearly the same, and they are governed by 
 the same principles. In the former the ship and 
 tackle being hypothecated, are liable as well as the 
 person of the borrower ; in the latter the lender has, 
 in general, only the personal security of the bor- 
 rower, (a) 
 
 CHAPTER IX.— OF GAMES AND WAGERS. 
 
 1260. The next class of hazardous contracts is 
 composed of those of gaming and laying wagers. 
 
 SECTION 1. — GAMING. 
 
 1261. Gaming is a contract between -two or more 
 
 (a) Marsh, on Ins. 784 ; 1 Bell's Com. 535. 
 
510 OF THINGS. 
 
 No. 1262. Book 2, part 2, tit. 5, chap. 9, sec. 1. No. 1262. 
 
 persons, by which they agree to play by certain rules 
 at cards, dice, or other contrivance, and that one shall 
 be the loser and the other shall be the winner. 
 
 When considered in itself and without any end 
 proposed by the players, there is nothing contrary to 
 natural equity, and the contract may be viewed as a 
 reciprocal gift, which the parties make of the thing 
 played for, under certain conditions. 
 
 The practice of gaming, however, has been justly 
 considered as perverting the activity of the mind, 
 tainting the heart, and depraving the affections ; and 
 by the frequent and great reverses of fortunes which it 
 occasions becoming the source of great misery, suggest- 
 ing constant temptations to fraud and the perpetration 
 of the most atrocious crimes. In most governments, 
 therefore, games have been laid under certain restric- 
 tions, and money lost at play may be recovered back, 
 if paid, or if it be not paid, no action lies to compel 
 the payment. 
 
 Some games depend altogether upon skill, others 
 upon chance, and some others are of a mixed nature. 
 Billiards and chess are examples of the first ; lottery, 
 of the second ; and backgammon, of the last. 
 
 1262. At common law all games are lawful, unless 
 some fraud has been practiced, or such games are 
 against public policy. Each of the parties to the con- 
 tract must, 1, have a right to the money or thing 
 played for ; 2, he must have given his full and free 
 consent, and not be entrapped by fraud ; 3, there must 
 have been equality in the play ; 4, the play must have 
 been conducted fairly. 
 
 But even when all these rules have been observed, 
 the courts will not countenance gaming by giving too 
 easy a remedy for the recovery of money won at play. 
 Indeed, it must be confessed that the law greatly 
 descends from its dignity, when it lends its aid to give 
 effect to any game, however innocent. (a) 
 
 (a) Bac. Ab. h. t. (A). 
 
OF PARTICULAR CONTRACTS. 511 
 
 No. 1263. Book 2, part 2, tit. 5, chap. 9, sec. 2. No. 1267. 
 
 1263. When fraud has been practiced, as in all other 
 cases, the contract is void ; and in some cases when a 
 party has been guilty of cheating, by playing with false 
 dice, cards, and the like, he may be indicted at com- 
 mon law, and fined and imprisoned. (a) 
 
 SECTION 2. — OF WAGEKS. 
 
 1264. A wager is a bet; a contract by which two 
 parties, or more, agree that a certain sum of money, 
 or other thing, shall be paid or delivered to one of 
 them, by the other, on the happening or not happening 
 of a certain event. Sometimes the thing bet is put 
 into the hands of a third party, called a stakeholder, to 
 be delivered to the winner. 
 
 1265. The common law does not prohibit all 
 wagers, (&) but to restrain them within the bounds of 
 justice the following conditions must be observed : 
 1, each of the parties must have a right to dispose of 
 the thing which is the object of the wager ; 2, each 
 must give a perfect and full consent to the contract ; 
 3, there must be equality among the parties ; 4, there 
 must be good faith between them ; 5, the wager must 
 not be forbidden by law.(c) 
 
 1266. A wager may be enforced by an action, if it 
 be not, 1, contrary to public policy or immoral ; or if 
 it do not, in some respects, tend to the detriment of 
 the public ; 2, if it do not affect the interest, feelings 
 or character of third persons. 
 
 1267. — 1. Wagers on the event of a public elec- 
 tion, laid before the poll is open,(rf) or after it is 
 closed,(e) are unlawful. Wagers are against public 
 
 (a) 1 Russ. on Cr. 106. 
 
 (5) Morgan v. Richards, 1 Browne's R. 171 ; 11 Co. 876 ; 1 Lev. 33 ; 5 
 Burr, 2802. 
 
 (c) Poth. sa. Jeu. n. 8. 
 
 (d) Smith V. MoMasters, 2 Browne's R. 182 ; 4 John. 426 ; Allen v. 
 Hearn, 1 T. R. 56. 
 
 (e) 2 Browne's R. 182 ; 8 John. 454 ; McAllister v. Hoffman, 16 S. & 
 R. 147 ; Laval v. Myers, 1 Bailey, 486. 
 
512 OF THINGS. 
 
 No. 1268. Book 2, part 2, tit. 5, chap. 9, sec. 2. No. 1268. 
 
 policy, if they are made in restraint of marriage,(a) 
 or as to the mode of playing an illegal game, (6) or on 
 an abstract, speculative question of law, not arising 
 out of circumstances in which the parties have a real 
 interest, (c) 
 
 1268. — 2. Wagers as to the sex of an individual, (rf) 
 or whether an unmarried woman had ever borne or 
 would have a child, (e) or whether Napoleon Bonaparte 
 would be removed or escape from St. Helena, within 
 a certain time,(/) have been severally holden to be 
 illegal. The supreme court of Pennsylvania have laid 
 down the rule, through one of the judges, that every 
 bet about the age, or height, or weight, or health, or 
 circumstances or situation of any person, is illegal; 
 and this, whether the subject of the bet be a man, 
 woman or child, married or single, a native or foreigner, 
 in this country or abroad. (g) 
 
 (a) 10 East, 22. 
 (J) 2 H. Bl. 43. 
 
 (ci Henkin v. Guerss, 12 East, 247. And see Day's note ; S. C. 2 Camp. 
 408. 
 
 (d) 12 East, 247 ; 1 B. & A. 683. 
 
 (e) Ditchburn v. Goldsmith, 4 Campb. 152. 
 
 (/) Phillips V. Ives, 1 Rawie, 36; Gilbert v. Sykes, 16 East, 150. 
 (g) Per Huston, J., 1 Eawle, 42. 
 
INDEX. 
 
 A. 
 
 A I'impossible nul n'est tenu, maxim of, 233. 
 A vinculo, divorces, 121. 
 
 Abandonment of personal property, effect of, 195. 
 in insurance, what, 497, 
 what loss will authorize an, 497. 
 when to be made, 497. 
 effect of, 497. 
 Aborigines, rights of, 17. 
 Abrogation, what, 43. 
 Absence, what, 100. 
 
 statute of limitation does not run during, 337 
 Absentees, who are, 100. 
 Absolute sale, what, 389. 
 
 acceptance of a bill, 467. 
 rights, what, 85. 
 property, 186. 
 Acceptance of a contract, what, 224. 
 bill, what, 465, 
 
 by whom made, 465. 
 when to be made, 465. 
 form of, 466. 
 effect of, 467, 
 absolute, 467. 
 conditional, 467. 
 partial, 467. 
 Acceptor, who is an, 457. 
 Accession, what, 197. 
 natural, 197. 
 Vol. I. 33 
 
514 INDEX. 
 
 Accession, artificial, 198. 
 
 Accessory contracts, what, 273. 
 
 Accidental, ■what is, to a contract, 247, 
 
 Accord and satisfaction, what, 312. 
 
 Accouchement, proof of, 130. 
 
 Account, guardian hound to keep an, 144. 
 
 Accrue, when does a cause of action, 335. 
 
 Acknowledgment of a debt, effect of, 339. 
 
 Act of God, carrier not liable for, 412. 
 
 Actus Dei nemini facit injuriam, maxim of, 413. 
 
 Ad litem, guardian, 141. 
 
 Adjunction, what, 198. 
 
 Adjustment, what, 498. 
 
 how made, 498. 
 effect of, 498. 
 of loss by death, 501. 
 Administrators cannot contract, when, 232. 
 Adultery, what, 122. 
 
 when a bar to marriage, 108. 
 cause of divorce, 122. 
 Advice, bill when to be paid as per, 460. 
 Affinity, what, 107. 
 
 when a bar to marriage, 107. 
 Affirmative representation, what, 492. 
 warranty, what, 491. 
 statute, 49. 
 Age entitled to regard, 63. 
 of males, 63. 
 
 females, 63. 
 marriage is lawful at what, 102. 
 Aggregate corporation, what, 75. 
 Agistor of cattle, who is, 406. 
 
 liabilities of, 406. 
 Agreements, how divided, 264. See Contract. 
 Air, no property in the, 170. 
 Alegatio falsi, consequence of, 504. 
 Aliens, who are, 66. 
 rights of, 18. 
 enemies cannot contract, when, 232. 
 
INDEX. 515 
 
 Alluvion, what, 172. 
 
 ■who is entitled to, 172. 
 differs from avulsion, 172. 
 Alternative agreements, what, 268. 
 Ambassadors, domicil of American, 99. 
 rights of children of, 17. 
 American ambassadors, domicil of, 99. 
 Amotion, what, 81. 
 
 Animals, how classed as property, 185, 186. 
 domitae naturae, 186. 
 ferffi naturje, 186, 189, 190. 
 when insurer is liable for the death of, 496. 
 Animo revertendi, effect of, 99. 
 Animus possidendi, effect of, 180. 
 Apocha oneratoria, what, 353, n. 
 Appointing power, in whom vested, 30. 
 Apportioned, rent may be, 270. 
 Apprentice, who is an, 158. 
 rights of, 159. 
 services of, 160. 
 when not assignable, 162. 
 obligations of, 165. 
 rights of, 165. 
 
 remedies of, against master, 166. 
 Apprenticeship, what, 159. 
 
 form of contract of, 161. 
 duration of, 161. 
 assignment of, 162. 
 dissolution of contract of, 166. 
 Appropriation, what, 321. 
 
 right of, 322. 
 rules relating to, 322. 
 Arbitrary laws, what, 53. 
 Aristocracy, what, 11. 
 Arm of the sea, what, 173. 
 Armies, congress may raise and support, 20. 
 Art, what, 160, n. 
 Articles of confederation, 15. 
 
 agreement, what, 355. 
 
516 INDEX. 
 
 Articles of agreement, form of, 355. 
 
 Artificial persons, 73. 
 
 Artists, what, 160, n. 
 
 Artizan, what, 160, n. 
 
 Assent differs from consent, 224. 
 
 Assignment of indenture of apprenticeship, 162. 
 
 a bill of lading, effect of, 354, 
 Attorney, letter of, 352. 
 
 warrant of, 351. 
 
 who is an, 352. 
 
 liable for neglect, 404. 
 
 in fact, who may be, 315. 
 
 by whom to be appointed, 315. 
 Auction, what, 391. / 
 Auctioneer agent for seller and buyer, 367. 
 Author, rights of, 201, 202, 203. 
 Average, what, 496. 
 
 loss, what, 495. 
 Avulsion, what, 172. 
 Award, when contract is extinguished by, 325. 
 
 B. 
 
 Badges of fraud, what are, 262. 
 Bailment, what, 393. ^ 
 
 for the benefit of both parties, 393. 
 the bailor, 393. 
 bailee, 393. 
 Bank notes, effect of payment in counterfeit, 318. 
 
 making a promissory note payable in, 
 477, n. 
 Banks of rivers, rights of the owners of, 171, 173. 
 Bankruptcies, congress may make laws relating to, 20. 
 Bankruptcy, effect of, on debts, 342. 
 Barratry, what, 496. 
 Bars to marriage, what are, 107, 108. 
 
 the recovery of a debt, legal, 329. 
 Bastard, who is a, 132. 
 
 entitled to parent's maintenance, 119. 
 
INDEX. 5i7 
 
 Bastard, rights of, 119. 
 
 incapacities of, 119. 
 may acquire a name, 120. 
 domicil of, 120. 
 Beyond sea, meaning of, 337, 338, n. 
 Bible, effect of entries in a, 130. 
 Bid at auction, effect of, 392. 
 may be withdrawn, 392. 
 Bill of adventure, what, 354. 
 
 exchange, what, 353, 456. 
 parties to a, 457. 
 form of a, 457. 
 general requisites of a, 457. 
 particular requisites of a, 458. 
 kinds of, 461. 
 
 foreign, 461. 
 inland, 461. 
 indorsement of a, 462. See Indorsement. 
 acceptance of a, 465. See Acceptance. 
 presentment of a, 467. See Presentment. 
 notice of dishonor of a, 470. 
 protest of a, 474. 
 parties to a, how discharged, 475. 
 must be for money, 458. 
 must be negotiable, 459. 
 lading, what, 253. 
 form of, 253. 
 assignment of, 254. 
 sale of a ship, what, 379. 
 Birth, what, 72. 
 
 evidence of, 96. 
 effects of, on citizens, 16. 
 Blank, what is an indorsement in, 462. 
 Body politic, what, 76. 
 Bond, what, 346. 
 
 requisites of, 347. 
 Books, right to unpublished, 201. 
 
 printed, in printer's hands, 202. 
 Booty, what, 216. 
 
518 INDEX. 
 
 Borrower, who is a, 438, 442. 
 rights of, 439. 
 obligations of, 440 
 
 must be named in a contract of bottomry, 508. 
 Bottomry, what, 504. 
 
 contracts resemble, 505. 
 of the loan in, 506. 
 the thing pledged in, 506. 
 risks in, 506. 
 form of contract of, 507. 
 Bought note, effect of delivery of, 367. 
 Breach of agreement, consequences of, 249. 
 Bridge, what, 175. 
 public, 176. 
 private, 176. 
 Bridgeman, Laura, a person deaf, dumb and blind, how far capa- 
 ble to act, 150, n. 
 Broken bank, effect of payment in notes of a, 318. 
 Bulky articles, by whom to be delivered, 320. 
 Buyer, obligations of, 388. 
 
 rights of, 388. 
 By-laws, corporation may make, 79. 
 
 C. 
 
 Canon law, what, 52. 
 
 Capias ad satisfaciendum, effect of arrest on, 341. 
 
 discharge from, 341. 
 Captain, when deviation is justified because of inability of, 483. 
 
 See Master. 
 must be named in a contract of bottomry, 508. 
 Capture, what, 219. 
 
 loss at sea by, 495. 
 deviation justified to avoid, 483. 
 Caput, meaning of, 58, n. 
 Carrier, who is a common, 410. 
 obligations of, 411. 
 liabilities of, 412. 
 when not liable for losses, 412 to 415. 
 
INDEX. 519 
 
 Carrier, right of, 416. 
 
 commencement of risk of, 415. 
 
 end of risk of, 416. , 
 
 of passengers, 417. 
 
 by land, 417. 
 
 water, 418. 
 obligations of, 417. 
 Cause of action accrues, when, 335. 
 Caveat to secure a right, 210. 
 
 emptor, rule, 383. 
 Certain contract, what, 274. 
 Charter, what, 74. 
 
 party, what, 355. 
 Chattels, what, 184. 
 real, 184. 
 persona], 185. 
 time of enjoyment of, 192. 
 number of owners of personal, 192. 
 Children, obligation of, toward their parents, 135. 
 rights of parents to control their, 135. 
 of ambassadors, rights of, 17. 
 citizens, rights of, 17. 
 Chinese interest, rate of, 448. 
 
 when allowed, 448. 
 Chose in possession, what, 168. 
 action, what, 168, 191. 
 
 difference between chose in possession and, 191. 
 may be sold, 237, 371. 
 Citizens, who are, 64. 
 rights of, 64. 
 naturalized, 64. 
 of U. S., who are, 16, 17. 
 children of, are citizens of the U. S., 17, 18. 
 Civil commotion, what, 502. 
 law, 6, 52. 
 
 adopted by the common law, 456. 
 rights, enjoyment of, 84. 
 liberty, 86. 
 death, 95. 
 
520 INDEX. 
 
 Civil death, effect of, 60, 108. 
 
 state, evidence of the, 95. 
 Claims, what, 306. 
 Club, what, 266. 
 
 liability of members of a, 266. 
 Cohabitation presumed to be lawful, 113. 
 Coin money, congress to, 20. 
 Collateral promise, what, 363. 
 Collision, who bears the loss occasioned by, 495. 
 Colloquium, merged in written contract, 358. 
 Colonies, union of, 14. 
 Color, persons of, 70. 
 Commencement of a marine risk, 486. 
 Commerce, things to be the object of a contract, must be in, 235. 
 
 regulated by congress, 20. 
 Comnaission of lunacy, when to issue, 149. 
 
 by whom to be sued out, 152. 
 against whom, 153. 
 where to be executed, 154. 
 factorage, what, 407. ' 
 merchant, who is a, 407. 
 Commissioner of lunacy, duty of, 153. 
 
 patents, duties of, 213. 
 Committees, who are, 80. 
 
 of lunatic, appointment of, 156. 
 the person, 156. 
 estate, 157. 
 Commixtion, what, 200. 
 Commodatum,what, 438. 
 Common carrier, who is a, 410. See Carrier. 
 law, what, 50. 
 memorandum, what, 490. 
 seal, corporations use a, 78. 
 Commonwealth, what, 13. 
 Communio bonorum, what, 359, n. 
 Compensation when considered as usurious, 453. 
 Compoimd interest, what, 447. 
 Compromise, what, 308. 
 
 form of a, 308. 
 
INDEX. 521 
 
 Compromise, subject of a, 309. 
 parties to a, 309. 
 effect of a, 309. 
 Compulsion will justify a deviation, 484. 
 Concealment, what, 302. 
 
 effect of, 302. 
 
 of consignor relieves carrier from responsibility, 
 in insurance, what, 493. [414. 
 
 will vitiate the contract, 493. 
 Conception of child before marriage, effect of, 128. 
 Concurrent considerations, 243. 
 Condictio indebiti, what, 360, n. 
 Condition, what, 284. 
 Conditions, resolutory, 290. 
 
 suspensive, 290. 
 
 effect of, 290. 
 
 performance of, 292. 
 
 suspend, rescind and modify contracts, 284. 
 
 kinds of, 285. 
 
 express or implied, 285. 
 
 lawful and unlawful, 286. 
 
 precedent and subsequent, 286. 
 
 possible and impossible, 288. 
 
 in faciendo, effect of, 289. 
 
 non faciendo, effect of, 289. 
 
 copulative, 289. 
 
 disjunctive, 289. 
 
 positive, 289. 
 
 negative, 289. 
 
 consistent, 289. 
 
 repugnant, 289. 
 Conditional contract, what, 284. 
 
 indorsement, what, 463. 
 
 sales, what, 389. 
 
 difference between mortgages and, 350. 
 Conduct regulated by law, 7. 
 Conductor, who, 394. 
 Confederation, articles of, 15. 
 Confusion of goods, 200, 324. 
 
522 INDEX. 
 
 Confusion of rights, 324. 
 
 arises by marriage, when, 325. 
 effect of, 325. 
 Congress, how constituted, 18. 
 when to assemble, 18. 
 powers of, 19, 20. 
 compensation of members of, 19. 
 each house of, to keep a journal, 19. 
 Conjunctive agreements, what, 267. 
 Connoissement, what, 353, n. 
 Consanguinity, a bar to marriage, 106. 
 Conscience, liberty of, 93. 
 
 Consent of parties required to make a contract, 224. 
 differs from assent, 224. 
 of parties to a sale, how given, 373. 
 form of, 374. 
 to what it relates, 375. 
 to a deposit, when implied, 430. 
 Consideration, what, 237. 
 good, 238. 
 valuable, 239. 
 legal, 241. 
 illegal, 241. 
 moral, 241. 
 immoral, 242. 
 executed, 242. 
 executory, 242. 
 concurrent, 243. 
 continuing, 243. 
 divisible, and indivisible, 243. 
 failure of, 244. 
 Consignee, who is a, 407. 
 
 when to pay freight, 416. 
 Consistent condition, what, 289. 
 Constituents, who are, 352. 
 Constitution, what, 9. 
 
 of the U. S., what, 46. 
 force of, 50. 
 Constitutional laws, what, 47. 
 
INDEX. 523 
 
 Constitutional rights, what, 84. 
 Constraint renders marriage voidable, 103. 
 is physical, 227. 
 moral, 227. 
 Construction, what, 39. 
 
 of agreements, 254. 
 Constructive fraud, what, 228 . 
 Continental congress, 14. 
 Continuing consideration, what, 243. 
 Contract, what, 222. 
 
 general rules relating to, 222. 
 
 essential conditions of a, 223. 
 
 form of, 224. 
 
 substance of, 224. 
 
 requisites to make a, 246. 
 
 nature of a, 246. 
 
 effect of a mistake in making a, 246. 
 
 when void, 236. 
 
 when voidable, 236. 
 
 consideration of a, 237. 
 
 effect of, 244. 
 
 when usurious, 451. 
 
 not usurious, 452. 
 if valid when made, is not afterward tainted by 
 
 usury, 452. 
 if usurious, will remain so, although substituted by 
 
 another, 452. 
 effect of usurious, 454 
 made by signs, 226. 
 consent to a, 226. See Consent. 
 parties to a, 228. 
 object of a, 232. 
 
 must be possible, 233. 
 useful, 235. 
 
 of thing in commerce, 235. 
 lawful, 236. 
 may be a chose m ^ction, 237. 
 equity enters into every, 259. 
 usage enters into, 259. 
 
524 INDEX. 
 
 Contract, law enters into, 260. 
 how divided, 264. 
 
 joint and several, 265. 
 conjunctive, 267. 
 disjunctive, 268. 
 alternative, 268. 
 divisible, 269. 
 indivisible, 269. 
 dependent, 272. 
 independent, 272. 
 principal, 273 
 accessory, 273. 
 certain, 274. 
 hazardous, 274. 
 onerous, 275. 
 gratuitous, 275. 
 limited, 279. 
 conditional, 284. 
 unconditional, 284. 
 of record, 342. 
 in writing, 343. 
 
 under seal, 343. 
 not under seal 352. 
 not in writing, 357. 
 express, 358. 
 implied, 358. 
 quasi, 359, n. 
 
 suspended by condition, 284. 
 rescinded by condition, 284. 
 modified by condition, 284. 
 how extinguished, 305. 
 Contribution to loss at sea, who to make, 496. 
 Contributions, forced, what, 216. 
 Conventions, what, 46. 
 Copulative conditions, effect of, 289. 
 Copy right, what, 203. 
 
 legislation relating to, 203. 
 to whom granted, 204. 
 for what granted, 204. 
 
INDEX. 525 
 
 Copy right, nature of, 204. 
 duration of, 204. 
 proceedings to obtain, 205. 
 requisites after the grant of a, 205. 
 how classed as property, 191. 
 Corporation, what, 73, 
 
 how created, 74. 
 kinds of, 75. 
 
 public, 75. 
 private, 75, 76. 
 ecclesiastical, 75. 
 lay, 75. 
 civil, 75, 76. . 
 eleemosynary, 75. 
 sole, 75. 
 aggregate, 75. 
 political, 75. 
 public, not political, 76. 
 religious, 76. 
 quasi, 77. 
 powers of, 78. 
 how managed, 80. 
 incapacities of, 81. 
 how dissolved, 82. 
 foreign, 83. 
 Corporeal things, what, 169. 
 Correlative term, what, 37. 
 
 Correspondence, contracts made by, 356, 375, 376. 
 Counterfeit money, effect of payment in, 318. 
 Counting, sale on condition of, 389. 
 Course of the voyage, what, 482. 
 Covenant, what, 351. 
 
 differs from assumpsit, 351. 
 not to sue, force of, 306, 
 Coverture, what, 115. 
 
 effect of, 337. 
 Creance, meaning of, 420, n. 
 Credit, effect of selling goods on, 385. 
 Creditor, who is a, 223. 
 
526 INDEX. 
 
 Creek, what, 173. 
 
 Crew, deviation is justified, in consequence of the inability of 
 the, 483. 
 
 by mutiny of the, 484. 
 Crime, when wife is liable for her, 117. 
 
 what is an infamous, 72. 
 Criminal laws, what, 53. 
 Crops, what, 197. 
 Cruelty, what, 122. 
 Curator, who is a, 138. 
 Curatorship, what, 138. 
 Custodia, what, 196. 
 Custodier, who is a, 406. 
 Custody, hire of, 406. 
 Custom, what, 51. 
 
 particular, 51. 
 
 D. 
 
 Damages for breach of contract, what, 249. 
 what causes given, 249. 
 
 arising from default of contractor, 251. 
 
 how ascertained, 252. 
 
 fixed by law, 252. 
 
 liquidated, 253. 
 
 how ascertained by a jury, 253. 
 
 on bills of exchange, how limited, 461. 
 
 in insurance, how ascertained, 498. 
 Date to a bill of exchange, required, 458. 
 Days of grace, what, 281. 
 Deaf and dumb, capacity of persons, 151. 
 Death, when presumed, 100. 
 
 of animals, when insurer liable for, 496. 
 
 mandator, effect of, 436. 
 
 mandatary, effect of, 435. 
 extinguishes contracts, when, 326. 
 Debt, when within the act of limitations bars a, 331. 
 
 or default of another, what, 364. 
 Debtor, who is a, 223. 
 
INDEX. 527 
 
 Debtor, effect of a discharge of a, arrested under a capias ad 
 
 satisfaciendum, 341. 
 Declaration of Independence, effect of, 16. 
 Declaratory statutes, 47. 
 Decree of prize court, effect of, 221. 
 Deed -what, 343. 
 
 form of a, 343. 
 must be under seal, 344. 
 delivered, 344. 
 effect of a, 344. 
 kinds of, 346. 
 of defeasance, what, 348. 
 Deeds, how classed as property, 185. 
 Default in an engagement, effect of, 251. 
 
 of another, what, 364. 
 Defeasance, deed of, 348. 
 Degree of kindred, what, 107. 
 Delegation, what, 311. 
 Deliver, meaning of, 459. 
 
 Delivery of bulky articles, how to be made, 320. 
 articles sold, what, 377. 
 
 different modes of, 378. 
 time of, 379. 
 place of, 380. 
 how to be made, 380. 
 ■ who to bear expenses of, 356, 381. 
 effect of a, 382. 
 the thing contracted for, when required, 247. 
 determinate article, how made, 381. 
 indeterminate article, how made, 381. 
 what is an actual, 378. 
 
 a symbolical, 379. 
 of a deed, how made, 345. 
 absolute, 345. 
 conditional, 345. 
 as an escrow, 345. 
 deposit, when required, 429. 
 by whom, 429. 
 to whom, 430. 
 
528 INDEX. 
 
 Delivery of deposit, intent of, 430. 
 Demagogy, what, 12. 
 Demand, when to he made, 251. 
 how made, 475. 
 of payment, 475. 
 
 of bill, by whom, 475. 
 when requisite, 335. 
 a claim payable on, when due, 335. 
 Demands, what, 306. 
 Demency, what, 151. 
 Democracy, what, 10. 
 
 representative, 12. 
 Departure from a voyage, what, 481. 
 
 effect of, 481. 
 Dependent agreements, what, 272. 
 Deposits, what, 421, 426. 
 kinds of, 427. 
 regular, 428. 
 necessary, 427. 
 voluntary, 427. 
 irregular, 428. 
 quasi, 428. 
 
 difference between sequestration and, 427. 
 Depositary, who is a, 406. 
 
 responsibility of, 406. 
 
 when to exercise more than ordinarv care, 408. 
 rights of, 431, 432. 
 obligations of, 431. 
 Depositor, who is a, 406. 
 rights of a, 431. 
 Deputy postmasters, who are, 419. 
 
 obligations of, 419. 
 liabilities of, 419. 
 Derelict, right to thing found, 196. 
 Derivative title to personal property, 198, 
 Derogation, what, 43. 
 Desertion, what, 122. 
 Despotism, what, 12. 
 Detention of princes, what, 496. 
 
INDEX. 529 
 
 Detention, when a deviation -will be justified to avoid, 483. 
 Determinate object, a contract must have a, 234. 
 
 article, how delivered, 380, 381. 
 Deviation from the course of a voyage, 482. 
 what is a, 482. 
 when justified, 482. 
 
 by stress of weather, 482. 
 to make necessary repairs, 483. 
 to succor distressed ships, 483. 
 to avoid capture, 483. 
 by inability of the crew, 483. 
 by mutiny, 484. 
 effect of, 484. 
 
 return to true course after a, 485. 
 Diligence of depositary, what, required, 432. 
 
 to be used by a borrower, 440. 
 Directors, who are, 80. 
 Disabilities to sue, what are, 337. 
 
 on whom lies the burden of proving, 337. 
 Discharge from a capias ad satisfaciendum, effect of, 341. 
 
 of parties to a bill or note, 475. 
 Disfranchisement, what, 81. 
 Dishonor of a bill, 471. See JYotice of Dishonor. 
 Disjunctive contracts, what, 268. 
 
 conditions, effect of, 289. 
 Disposition of property, right of, 183. 
 Dissolution of corporations, when, 82. 
 contract of mandate, 436. 
 marriage, 120. 
 
 by death, 120. 
 divorce, 120. 
 District of Columbia, jurisdiction of congress over, 21. 
 
 court, jurisdiction of, in prize cases, 223. 
 Divisible consideration, what, 243. 
 
 agreements, what, 268. 
 Divorce, what, 120. 
 
 - a vinculo, 121. 
 
 for what granted, 121. 
 effects of, 123. 
 Vol. I. 34 
 
530 INDEX. 
 
 Divorce, a mensa et thoro, 124. 
 
 for what granted, 124. 
 effects of, 124. 
 Domain, what, 181. 
 
 difference between property and, 181. 
 Domicil, what, 96. 
 
 of origin, what, 97. 
 acquired by law, 98. 
 
 by wife, 98, 
 minor, 98. 
 lunatic, 98. 
 of public officers, 99. 
 
 American ambassadors, 99. 
 soldiers, 99. 
 marines, 99. 
 prisoners, 99. 
 choice, 99. 
 a man may have two, 97. 
 Double insurance, what, 479. 
 
 effect of, 479. 
 Dower, when divorce is a bar to, 124. 
 Drawee, who is a, 457. 
 
 Drawings, when required to obtain a patent, 212. 
 Drunkenness, when a cause of divorce, 123. 
 
 effect of a contract made in a state of, 227, 230. 
 Due, obligation, when, 335. 
 Duress, what, 226. 
 
 by imprisonment, 227. 
 per minas, 227. 
 of goods, 227. 
 
 renders marriage voidable, 103. 
 Duty, what, 37. 
 
 or tax on patents, 211. 
 
 E. 
 
 Education, due by parents to children, 119. 
 Effect of a contract, what, 244. 
 
 rules as to the, 245. 
 
INDEX. 531 
 
 Election, what is the right of, 269. 
 
 wager upon, when unlawful, 511. 
 Ecclesiastical corporations, 75. 
 Emblements, what, 187, 197. 
 Employer, who is an, 400. 
 End of a marine risk, 486. 
 Enemies, who are, 413. 
 
 incapacity of, to contract, 232. 
 trading with, illegal, 298. 
 carrier not liable for act of, 413. 
 Enjoyment of property, right of, 182. 
 Enlarging statutes, what, 48. 
 Entire consideration, effect of, 243. 
 contract, recovery on an, 336. 
 when void, 304. 
 Equitable mortgage, what, 349. 
 Equity enters into every contract, 247, 259. 
 
 of redemption, what, 348. 
 Error as to person renders marriage voidable, 104. 
 
 effect of, on a contract, 226. 
 Erunt duo in carne una, maxim of, 115. 
 Escrow, what, 345. 
 
 Estate, difference between real and personal, 177. 
 Estrays, what, 196. 
 Eviction, damages on, 253. 
 Evidence of marriage, what is, 111. 
 Ex post facto laws, what, 50. 
 Exceptio peremptoria, what, 329. 
 Exclusive, what, 182. 
 Excuses for not making a presentment, 469. 
 Executed consideration, what, 242. 
 Executive power, in whom vested, 26. 
 of the states, 33. 
 what, 9. 
 Executors cannot contract, when, 232. 
 
 how far liable on their promises, 362. 
 Executory consideration, 242. 
 Expatriation, right of, 94, 95. 
 Expenses of delivery of articles sold, who to bear, 380. 
 
532 INDEX. 
 
 Express laws, what, 45. 
 Expromissio, what, 310. 
 Expromissor, what, 310. 
 Extinction of obligation, what is an, 305. 
 Extinguishment of contracts, how made, 305. 
 by act of both parties, 305. 
 
 by release, 306. 
 compromise, 308. 
 renewal, 310. 
 accord and satisfac- 
 tion, 312. 
 one of the parties, 313, 
 
 by payment, 313. 
 confusion, 324. 
 loss of the thing, 325. 
 death of a party, 326. 
 set oflF, 326. 
 lapse of time, 328. 
 legal bars, 329. 
 Extra patrimonium, what are things, 169. 
 
 Factor, who is, 407. 
 
 liabilities of, 407. 
 Factorage, what, 407. 
 Failure of consideration, effect of, 244. 
 Family, husband is the head of the, 116. 
 Fare, when to be paid by passenger, 418. 
 Father, duties of, 119. 
 
 rights of, 136. 
 Fear, when it makes marriage voidable, 104. 
 Females, age of, 63. 
 Feme covert, what, 115. 
 Fiction made to yield to justice, 283. 
 Fictitious parties to a bill of exchange, effect of, 457. 
 Fiduciary cannot contract, when, 232. 
 Filiation, what, 125. 
 
 proof of, 129. 
 
INDEX. 533 
 
 Filiation, proof of, by possession, 129. 
 witnesses, 130. 
 private writings, 130. 
 public writings, 131. 
 Fire, a peril at sea, 495. 
 
 insurance against, 501. 
 Fixtures, what, 187. 
 
 who is entitled to, 188. 
 Forbearance, when a valuable consideration, 239. 
 
 sufficient to constitute usury, 451. 
 Forced sale, what, 391, 
 Foreign bills of exchange, what, 461. 
 
 consists of several parts, 461. 
 judgment, when barred by act of limitation, 332. 
 laws, what, 54. 
 Foreigners, rights of, 18. 
 Forfeiture of a charter, eifect of, 83. 
 Form of agreements, 342. 
 
 by matter of record, 342. 
 contracts under seal, 343. 
 acceptance of a bill, 466. 
 a bill of exchange, 457. 
 bill of lading, 353. 
 articles of agreement, 355. 
 signature to a contract, 367. 
 a note under the statute of frauds, 366. 
 commission of lunacy, 155. 
 contract of apprenticeship, 161. 
 contract of suretyship, 278. 
 joint and several contract, 266. 
 a release, 306. 
 compromise, 308. 
 protest of a bill, 474. 
 promissory note, 476. 
 Forwarding merchant, who is a, 407. 
 
 liabilities of, 407. 
 Fractions of a day, when completed, 283, n. 
 Fraud, what, 227, 249. 
 test of, 228. 
 
534 INDEX. 
 
 Fraud, positive, 228, 261. 
 
 constructive, 228, 261. 
 renders marriage voidable, 104. 
 on third persons, effect of, 261. 
 prevents the bar of the statute of limitations, 340. 
 effect on consent, 227. 
 Fraudulent contracts, what are, 301. 
 Freedom, what deprives a man of his, 227. 
 Freemen, who are, 67. 
 Freight, what, 417. 
 
 who is bound to pay, 416. 
 effect of waiving right to, 416. 
 when carrier is entitled to, 416. 
 Fruits growing on highway, belong to the owner of the soil, 
 
 175. 
 Fugitives from labor, 68. 
 
 slaves in Rome, 69, n. 
 Fungibles, what, 396, 443. 
 Future advantage cannot be renounced, 38. 
 
 G. 
 
 Games and wagers, what, 509. 
 Gaming, what, 509. 
 
 nature of, 510. 
 when lawful, 510. 
 
 unlawful, 298, 510. 
 Gems on the sea shore, rights to, 195. 
 General rules of courts, 50, 
 Gens, what, 16. 
 Gestation, period of, 127. 
 Gifts, what, 275. 
 
 inter vivos, 286. 
 donatio mortis causa, 277. 
 Good consideration, what, 238. 
 
 faith, what is a want of, 249. 
 
 required in contracts of insurance, 477. 
 Goods and chattels, what, 187. 
 Government, what, 10. 
 
INDEX. 535 
 
 Government, forms of, 10. 
 
 mixed, what, 11. 
 of United States, 13. 
 not barred by the act of limitations, 333. 
 Grand bill of sale of a ship, what, 379. 
 Gratuitous contracts, what, 275, 
 Guarantee, what, 362. 
 
 difference between an offer and a, 363, n. 
 Guardian, who is, 138. 
 
 of the person, 138. 
 estate, 138. 
 kinds of, 139. 
 appointment of, 141. 
 ad litem, 141. 
 who may be, 141. 
 duties of, 142. 
 power of, 143. 
 
 when-to be authorized by the court, 145. 
 account of, 145. 
 discharge of, 146. 
 
 by time, 146. 
 removal, 146. 
 death, 146. 
 operation of law, 146. 
 cannot contract, when, 232. 
 Guardianship, what, 138. 
 
 kinds of, 139. 
 by nature, 139. 
 nurture, 140. 
 Guest, when innkeeper bound to receive a, 408. 
 
 H. 
 
 Habeas corpus, origin of, 91, n, 
 
 use of, 90. 
 
 cannot be suspended by military commander, 
 53. 
 Habit required in insanity, 152. 
 Habitual drunkenness, what, 151. 
 
536 INDEX. 
 
 Habitual drunkenness, when a cause of divorce, 123. 
 
 Hand sale, 226. 
 
 Harbor, what, 173. 
 
 Hazardous contract, what, 275. 
 
 Health, how secured, 88. 
 
 Hearsay may establish pedigree, 130. 
 
 Heir loom, what, 185. 
 
 Hermaphrodite, what, 61. 
 
 Hierarchy, what, 13. 
 
 High and low water, who owns the soil between, 172. 
 
 Highways, what, 174. 
 
 water courses which fall into the Mississippi and 
 
 Saint Lawrence, are public, 171. 
 public have an easement in, 174. 
 owner of the soil has a right to, 174. 
 Hire, what, 394, 439. 
 of a thing, 395. 
 
 what thing is the subject of, 395. 
 how things hired to be used, 396. 
 
 enjoyed, 396. 
 price of, 397. 
 ^oflabor, what, 400. 
 
 nature of, 400. 
 of custody, what, 406. 
 Hirer, who is a, 394. 
 rights of, 398. 
 
 acquires a special property, 398. 
 obligations of, 399. 
 Hiring, contract of, 394. 
 
 what contracts resemble, 394. 
 for what time there is a, 397. 
 of labor, requisites for the contract of, 401. 
 for what work, 401. 
 price, 401. 
 Holder, who is a, 457. 
 Homicide, how punished, 87. 
 Honorarium, what, 434. 
 
 House of representatives, number of members, 24. 
 by whom elected, 25. 
 
INDEX. 537 
 
 House of representatives, qualification of members, 25. 
 
 time of election of members, 25. 
 duration of office of members, 25. 
 power of members, 26. 
 Husband, rights of, 62, 63, 114, 116, 231. 
 obligations of, 115. 
 separation between wife and, 128. 
 presumed to be the father of wife's children, 117, 126. 
 Hypothecation, what, 421. 
 
 of a ship, by whom made, 508. 
 
 I O U, nature of, 476. 
 
 Id cetum est quod reddi certum potest, maxim of, 372. 
 
 Idiocy, what, 150. 
 
 Idiots cannot make a binding contract, 229. 
 
 If, meaning of, 285. 
 
 Illegal voyage cannot be insured against, 481. 
 
 Imbecility, what, 151. 
 
 Immoral consideration, what, 242. 
 
 contract, void, 296. 
 Immutable laws, what, 53. 
 Imperitia culpae annumeratur, maxim of, 403. 
 Implied contract, what, 358. See Contract. 
 Impossibility, what, 233. 
 Impossible condition, what, 288. 
 Impotence renders marriage voidable, 105. 
 
 of husband, evidence of illegitimacy, 128. 
 Imprisonment, effect of, on contract, 227. 
 In pari causa, potier est, maxim of, 383. 
 
 patrimonio, what things are, 169. 
 
 pari delicto potior est conditio defendentis et possidendis, 
 maxim of, 295. 
 
 transitu, right of stoppage, 385. See Stoppage in transitu. 
 Inanimate tangible property, what, 187. 
 Incapacities of corporations, what, 81. 
 Incapacity to contract, what, 228, 229. 
 
 arises from nature, 229. 
 
538 INDEX. 
 
 Incapacity to contract, is created by law, 229. 
 
 of trustees to contract, 232. 
 Incorporeal things, what, 169. 
 Indebiti solutio, what, 360 n. 
 Indemnity to officer, when legal, 360, 
 
 when seller is entitled to, 385. 
 Independent agreements, what, 272. 
 Indeterminate article, how delivered,, 380, 381. 
 Indivisible agreements, what, 269. 
 
 consideration, what, 243. 
 Indorsee, who is an, 457. 
 Indorsement, what, 462. 
 form of, 462. 
 in full, 462. 
 in blank, 462. 
 restrictive, 463. 
 conditional, 463. 
 qualified, 463. 
 effect of, 463. 
 
 when an original engagement, 463. 
 Inebriation, effects of, on contracts, 227, 230. 
 Infamy, what, 72. 
 Infancy, what, 137. 
 Infant, who is an, 137. 
 
 in ventre sa mere, who is an, 73. 
 rights of, 73. 
 domicil of, 98. 
 effect of contract of, 230. 
 may be an attorney, 231. 
 Infra prsesidia, effect of taking goods, 216. 
 Inland bill of exchange, what, 461. 
 Innkeeper, who is an, 408. 
 
 obligations of, 408. 
 liabilities of, 409. 
 rights of, 410. 
 
 how regulated in the United States, 410. 
 Innocence always presumed, 126. 
 Inquisition of lunacy, form of, 155. 
 
 effect of finding, 157. 
 
INDEX. 539 
 
 Insanity, what, 71, 148, 149. 
 Instalments when to he paid separately, 321. 
 Insurahle interest, what, 477. 
 Insurance, what, 477. 
 
 marine, 477. See Marine Insurance. 
 life, 499. 
 fire, 501. 
 
 for whom made, 486. 
 Insured, who is an, 477. 
 Insurer, who is an, 477. 
 Intellectual labor, property acquired by, 201. 
 Intention required to constitute usury, 454. 
 Inter mercatores jus accrescendi locum non habet, maxim of, 198. 
 Interdiction, what, 61, 149. 
 Interest of money, 444. 
 
 who must pay, 444. 
 
 is entitled to, 445. 
 on what claims, 445. 
 quantum of, allowed, 446. 
 for what time, 446. 
 simple, 447. 
 compound, what, 447. 
 foreign what, 447. 
 Chinese, 448. 
 when barred, 449. 
 insurable, what, 477, 478. 
 in life insurance, what, 500. 
 in fire insurance, what, 501. 
 policy, what, 499. 
 International law, 4. 
 Interpretation, what, 39. 
 
 kinds of, 40. 
 literal, 40. 
 liberal, 41. 
 rules of, 41, 255. 
 Invention, what, 208. 
 useful, 208. 
 Irregular deposit, what, 428. 
 Island, who is the owner of an, 172. 
 
540 INDEX. 
 
 J. 
 
 Joint agreement, what, 265. 
 obligors, 266. 
 obligees, 266. 
 
 debtors, eflFect of a release to one of several, 308. 
 tenancy in chattels, what, 193. 
 Journal, each house of congress to keep a, 19. 
 Judgment, what, 264. 
 
 not barred by act of limitations, 332. 
 limitation bars a foreign, when, 332. 
 when contract is extinguished by, 325. 
 Judicial power, 31. 
 
 of the states, 33. 
 sales, what, 391. 
 Judiciary power, what, 9. 
 Jurisprudence, what, 1. 
 Jus in re, what, 181, 182. 
 ad rem, what, 182. 
 abutendi, 183. 
 utendi, 183. 
 gentium, what, 4. 
 
 accrescendi inter mercatores pro beneficio commercii locum 
 non habet, maxim of, 265. 
 Justice, what, 2. 
 
 E. 
 
 Keys, how considered, 185. 
 Kindred, when a bar to marriage, 106. 
 degree of, what, 107. 
 
 L. 
 
 Land, what is a contract concerning, 365. 
 
 Lapse of time, what contract is extinguished by, 328. 
 
 Larceny, emblements not subjects of, 198. 
 
 Laura Bridgeman, a person deaf, dumb and blind, capacity of, 
 
 150, n. 
 Law, what, 1, 2, 3. 
 of nature, 4. 
 nations, 4. 
 
INDEX. 541 
 
 Law, municipal, 6, 53. 
 international, 4. 
 civil, 6, 52. 
 common, 50. 
 Roman, 52. 
 canon, 52. 
 objects of the, 52. 
 criminal, 52. 
 merchant, 53. 
 martial, 53. 
 
 enters into every contract, 260. 
 Laws, how passed, 33. 
 
 promulgation of, 34, 35. 
 effect of, 35. 
 sanction of, 35. 
 obligation of, 37. 
 who are bound by the, 38. 
 how applied, 38. 
 interpretation of, 39. 
 repeal of, 43. 
 several kinds of, 45. 
 express, 45. 
 tacit, 45. 
 constitutional, 47. 
 unconstitutional, 47. 
 of the states, 50. 
 
 made by inferior legislative bodies, 50. 
 tacit, 50. 
 immutable, 53. 
 arbitrary, 53. 
 national, 54. 
 foreign, 54. 
 
 over what country they extend, 54. 
 Lawful condition, what, 286. 
 Lay corporations, what, 75. 
 Legal consideration, what, 241. 
 Legislative power, what, 9. 
 
 in whom vested, 18. 
 of the several states, 33. 
 
542 INDEX. 
 
 Legitimate children, who are, 117. 
 
 bom in wedlock, 125. 
 Legitimation of natural children, 133. 
 Lender, who is a, 438, 442. 
 rights of, 440. 
 
 must be named in the contract of bottomry, 508. 
 Letter to hire, who is a, 394. 
 
 who may be, 398. 
 of attorney, what, 352. 
 Letters, right in private, 201. 
 
 contracts made by, 356. 
 to be carried by mail, 419. 
 Lex fori, governs as to the remedy, 334. 
 locus contractus, when to govern, 260. 
 
 solutionis, when to rule, 260. 
 scripta, 45. 
 non scripta, 45. 
 Libel, a contract to print a, is illegal, 297. 
 Libellous books, no copy right in, 204. 
 License to trade with enemy, effect of, 298. 
 Liberty, what is civil, 86. 
 
 personal, 89. 
 of thought, right of, 92. 
 of the press, what, 92. 
 of conscience, 93. 
 Lien of carrier for freight, 416. 
 Life, how secured, 86. 
 
 insurance, what, 499. 
 Light, no property in the, 170. 
 Limbs, how protected, 88. 
 Limitation of actions, effect of act of, 329. 
 
 specialties not within the act, 331. 
 judgments when not barred by, 332. 
 trusts not barred by, 333. 
 government not barred by, 333. 
 when the act begins to run, 335. 
 act of, how avoided, 336. 
 Limitations, when the statute of, begins to run, 337. 
 Line, descending, 106. 
 
INDEX. 543 
 
 Line, ascending, 106. 
 collateral, 107. 
 Liquidated damages, what, 253, 293. 
 
 differ from a penalty, 293. 
 debt bears interest, when, 446. 
 Literary property, what, 201. 
 Loan, what, 437. 
 
 for use, what, 438. 
 
 what contracts resemble, 438. 
 must be gratuitous, 439. 
 for consumption, what, 441. 
 
 nature of, 442. 
 essence of, 442. 
 on interest and usury, 444. 
 to make usury there most be a, 451. 
 in bottomry, how made, 507. 
 Locatio custodiae, what, 406. 
 
 conductio rei, contract of, 395. 
 mercium vehendarum, what, 410. 
 operis, what, 400. 
 Locator, who, 394. 
 Loss, what, 493. 
 
 must be immediate consequence of some peril, 494. 
 
 total, 494. 
 
 partial, 495. 
 
 average, 495. 
 
 salvage, 496. 
 
 on land, is not covered by a policy on a voyage, 486. 
 
 abandonment made for a total, 497. 
 
 what, insured against, from fire, 502. 
 
 how adjusted, 504. 
 
 of article sold, who is to bear, 382. 
 
 carrier liable for what, 412. 
 
 when not hable, 412 to 415. 
 of the subject of the contract, effect of, 325. 
 Lunacy, what, 150. 
 
 commission of, 149. 
 proceedings in, 153. 
 Lunatic, domicil of, 98. 
 
544 INDEX. 
 
 Lunatic, incapacities of, 157, 
 restoration of, 158. 
 contracts of, 229. 
 
 M. 
 
 Magna' culpa dolus est, maxim of, 250. 
 
 Maintenance, due by parents to children, 118. 
 
 Majority, what, 148. 
 
 Mala grammatica non vitiat chartam, maxim of, 255. 
 
 Males, age of, 63. 
 
 Man, who is a, 57 n., 61. 
 
 Managers, who are, 8. 
 
 Mandatary, who is a, 433. 
 
 obligations of, 435. 
 Mandate, what, 433. 
 
 subject of, 433. 
 
 consent of parties to a, 434. 
 
 nature of, 434. 
 
 form of contract of, 455. 
 
 must be gratuitous, 434. 
 
 dissolution of contract of, 436. 
 Mandator, who is a, 433. 
 
 obligations of, 436. 
 Mandatum, what, 434. 
 
 nisi gratuitum nullum est, maxim of, 434. 
 Marine Insurance, what, 477. 
 
 interest, what, 505. 
 Mariner when unable to contract, 232. 
 Marines, domicil of, 99. 
 Maritime loans, what, 504. 
 
 profits, 507. 
 Marriage, what, 101. 
 
 bars to, 101. 
 
 when lawful, 101. 
 unlawful, 101. 
 
 consent to, when not sufficient, 103. 
 
 effect of second, 104. 
 
 form of, 109, 110. 
 
INDEX. 545 
 
 Marriage, before whom to take place, 103. 
 
 where to take place, 110. 
 
 how proved, 96, 111. 
 
 incestuous, 111. 
 
 when void and voidable, 113, 114. 
 
 rights arising from, 114, 
 
 duties arising from, 114. 
 
 effect of, on the state of a person, 61. 
 rights of spouses, 325. 
 
 dissolution of, 120. 
 
 contract to restrain, is illegal, 298. 
 
 brokage is illegal, 298. 
 Married woman, contract of, 221. 
 Martial law, what, 53. 
 Master and apprentice, 158. 
 duties of, 163. 
 to teach apprentice, 163. 
 
 keep his covenants, 164. 
 
 protect apprentice, 164. 
 remedies of, against apprentice, 166. 
 Mater semper certa est etiamsi vulgo conceperit, maxim of, 
 
 125, 126. 
 Materials to be employed by workman, 404. 
 
 who is to bear loss of, 405. 
 Matrimony, when infant can contract, 230. 
 Maxims, a I'impossible nul n'est tenu, 233. 
 
 actus Dei nemini facit injuriam, 413. 
 
 caveat emptor, 383. 
 
 imperita culpae annumeratur, 403. 
 
 jus accrescendi inter mercatores pro beneficio com- 
 mercii locum non habet, 265. 
 
 magna culpa dolus est, 250. 
 
 mandatum nisi gratuitum nullum est, 434. 
 
 nuptias consensus, non concubitus facit, 103. 
 
 pater is est quem nuptia demonstrant, 117, 126, 133. 
 
 qui prior est in tempore, potior est in jure, 209, 382. 
 
 quod nullius est id ratione natural! occupanti con- 
 ceditur, 194. 
 
 res perit domino, 248, 405. 
 Vol. I. 35 
 
546 INDEX. 
 
 Maxims, res judicata facit ex albo nigrum, ex nigro album ; ex 
 curvo rectum, ex recto curvum, 326. 
 spondet peritiam artis, 403. 
 verba fortius accipientur contra proferentem, 257. 
 Measure of damages, 253. 
 
 for breach of Contract, 253. 
 on eviction, 253. 
 in case of loss by a carrier, 254. 
 when arbitrary, 254. 
 Measuring, sale on condition of, 389. 
 Melius inquirendum, when not allowed, 156. 
 Members of congress, compensation of, 19. 
 
 not to hold other office, 19. 
 Memorandum, what is the common, 490. 
 
 under the statutes of frauds, what, 366. 
 Mercjiant and merchant, effect of contracts between, 332. 
 Military service avoids life insurance, when, 500. 
 Militia when to be called into service, 21. 
 Minerals under public highway belong to the owner of the 
 
 soil, 175. 
 Minor, domicil of, 98. 
 Minority, what, 137. 
 Miscarriage, what, 364. 
 Miserabile depositum, what, 427. 
 Misrepresentation, what, 301. 
 
 effeet of, 301. 
 Mistake as to object of contract, consequence of, 226. 
 Mixed estate, what, 177. 
 Models when required to obtain a patent, 212. 
 Modification of contract, by condition, 284. 
 Mohatra, contract of, 451. 
 Monarchy, what, 11. 
 Money, origin of, 368. 
 what, 369. 
 
 congress regulate the value of, 20. 
 had and received, action for, 456. 
 in court, effect of payment of, 324. 
 Months, how calculated, 283. 
 Moral law, what, 6. 
 
INDEX. 345- 
 
 Moral obligation, -what, 241. 
 Mortgage, what, 347. 
 
 legal, 347, 
 
 is a pledge, 347. 
 
 form of, 348. 
 
 equitable, 349. 
 
 of chattels, 349. 
 
 for what given, 350. 
 
 difference between a conditional sale and a, 350. 
 Mortgagee who is 347. 
 Mortgagor, who is a, 347. 
 Mother, always certain, 125. 
 Movable property, what, 184. 
 Mtmicipal law, 6. 
 
 corporations, property of, 176. 
 Mutiny of the crew will justify a deviation, 484. 
 Mutual accounts, effect of, 339. 
 promises, effect of, 240. 
 Mutuum, what, 441, 455. 
 
 contracts resembling, 442. 
 Mystery, what, 160. 
 
 N. 
 
 Name of the ship, necessary in bottomry, 508. 
 lender when necessary, 508. 
 borrower when necessary, 503. 
 Nation, what, 16. 
 National laws, what, 54. 
 Natives, who are, 16. 
 Natural persons, who are, 57. 
 children, who are, 131. 
 
 incestuous, 132. 
 
 adulterous, 132, 
 
 legitimation of, 133. 
 Naturalization laws, what, 64. 
 Naturalized citizen, who is a, 17, 64. 
 Nature, guardian by, 139. 
 Navigable river, what, 171. 
 
548 INDEX. 
 
 .1 
 
 Navy, congress may provide and maintain a, 21. 
 
 entering the, avoids a policy for a life insurance, 508. 
 Necessaries, what, 115. 
 Necessary deposit, what, 427. 
 Negative statute, 49. 
 
 conditions, what, 289. 
 Negligence, liability of bailee for, 404. 
 
 mandatary liable for gross, 435. 
 Negotiorum gestio what, 359. 
 Negotium gerendum, what, 433. 
 
 gestum, what, 433. 
 Negroes, condition of, 17. 
 
 Nemo auditur turpitudinem suam allegans, maxim of, 397. 
 New promise, what, 839. 
 
 effect of, 339. 
 Nobles, who are, 71. 
 Non user, effect of, 44. 
 
 compos mentis, what, 149. 
 Note, what is a promissory, 353. 
 
 or memorandum, under the statute of frauds, 364. 
 bought and sold, 367. 
 Notice of dishonor of a bill, when required, 470. 
 
 form of, 471. 
 by whom given,' 471. 
 to whom, 472. 
 when to be given, 472. 
 where given, 473. 
 effect of, 473. 
 when excused, 474. 
 waiver of, 474- 
 when a contract is discharged for want of, 328. 
 of carriers, effect of, 414. 
 to be given before a sale of a pawn, 425. 
 Noting, what, 474. 
 Novation, what, 310. 
 
 Nuptias consensus, non concubitus facit, maxim of, 103. 
 Nurture, guardian by, 140. 
 
INDEX. 549 
 
 O. 
 
 Oath to be made to obtain a patent, 212. 
 Object of a contract, what may be the, 232. 
 Obligations of employer, 402. 
 workman, 402. 
 innkeeper, 408. 
 common carriers, 411. 
 mandatary, 435. 
 mandator, 436. 
 law, what, 37. 
 to deliver the thing contracted for, 247. 
 
 do or not to do, 248. 
 primary, 273. 
 secondary, 273. 
 effect of mora], 241. 
 how extinguished, 305, 326. 
 Obligee, who is an, 223. 
 Obligor, who is an, 223. 
 Occupancy, requisite to possession, 180. 
 
 title by, 194. 
 Ochlogracy, what, 11. 
 OflFer, what, 224. 
 
 when it may be withdrawn, 224. 
 Office, what, members of congress shall not hold, 19. 
 Oligarchy, what, 12. 
 Onerous contracts, what, 275. 
 Open policy, what, 499. 
 Ordinances, what, 50. 
 Origin of society, 1. 
 Original title to personal property, 198. 
 
 P. 
 
 Pactions, what, 46. 
 Parents, power of, 137. 
 
 when consent of, required to marriage, 108. 
 
 duties of, 117, 119. 
 Parol contract, what, 352. 
 
550 INDEX. 
 
 Partial payment, when to be made, 321. 
 
 loss, what, 495. 
 Parties to, articles of agreement, who are, 355. 
 a bill of exchange, who are, 457. 
 a compromise, 309. 
 contract, capacities of, 228. 
 a policy, who are, 478,488. 
 a sale, 370. 
 
 when trustees for each other, 377. 
 Partner may give a release under seal, 308. 
 Partus sequitur ventrem, rule of, 69, 198. 
 Passage of laws, 33. 
 Passengers, liabilities of carriers of, 418. 
 rights of carriers of, 418. 
 carriers of, by land, 417. 
 water, 418. 
 when to pay their fare, 418. 
 Passport, effect of, to an enemy, 218. 
 Patent rights for inventions, 206. 
 
 legislation relating to, 206. 
 to whom granted, 207. 
 for what invention granted, 208. 
 how classed as property, 191. 
 to grant, 20. 
 
 proceedings, to obtain a, 210. 
 tax or duty on, 211. 
 form of, 214. 
 correction of, 2,14. 
 assignment of, 215. 
 extension of, 215. 
 after requisites to secure a, 215. 
 Patentee, who has a right to be a, 207. 
 
 Pater is est quern nuptia demonstrant, rule of, 117, 126, 133. 
 Paternal power, what, 134. 
 Paternity and filiation, 125. 
 Pawn or pledge, 419. 
 
 what contracts are similar to a, 420. 
 property may be given in, 421. 
 claim may be secured by, 422. 
 
INDEX. 551 
 
 Pawn, delivery of the, 422. 
 
 effect of extinction of the, 426. 
 Pawnee, who is a, 420. 
 
 right to use the pledge, 423. 
 to take care of pledge, 424. 
 remedy of, 424. 
 right to sell the pledge, 424. 
 right of action, 425. 
 Pawnor, who is a, 420. 
 rights of, 422. 
 Pay, meaning of, 458. 
 Payee, who is a, 457. 
 Payment, what, 313. 
 
 by whom, 314. 
 to whom, 314. 
 
 to creditor himself, 314. 
 his agent, 314. 
 guardian, 315. 
 committee of lunatic, 316. 
 husband, 316. 
 assignee of insolvent, 316. 
 party appointed to receive it, 316. 
 how validated, 316. 
 what may be given in, 317. 
 when to be made, 319. 
 at whose expense to be made, 319. 
 effect of, 320. 
 
 of instalments, when to be made, 318. 
 by one of several debtors, effect of, 321. 
 partial, 321. 
 appropriation of, 321. 
 of money into court, effect of, 824. 
 by a joint debtor, effect of, 267. 
 cannot be forced on creditor when not due, 449, n. 
 presumed after twenty years, 341. 
 Pedigree, what, 130. 
 Penalty, what, 292. 
 
 difference between liquidated damages and a, 293. 
 equity will relieve from a, 294. 
 
552 INDEX. 
 
 Per minas, what is duress, 227. 
 Performance of contracts, time of, 279. 
 Performed, meaning of, 365. 
 Perils, what, 477, 495. 
 
 of the sea, what, 413, 486. 
 insured against, 490. 
 Permissive statutes, what, 48. 
 Perpetual statutes, 48. 
 Person, etymology of, 57, n. 
 
 state or condition of a, 58. 
 Personal property, origin of, 177. 
 what, 184. 
 security, what, 86. 
 Personalty, cannot be changed by guardian to realty, 144. 
 Persons, of, 57. 
 
 state of, 58. 
 distinction among, 59. 
 political rights of, 59. 
 private rights of, 60. 
 classification of, 61. 
 public, 61. 
 private, 61. 
 artificial, what, 73. 
 Physician liable for neglect, 404. 
 Pilot, when required, 480. 
 Piracy, what, 496. 
 
 to be defined by congress, 20. 
 Place of business, what is a, 468. 
 Plebeians, who are, 71. 
 Pledge, what, 419. 
 
 in bottomry, what, 507. 
 Policy, what, 477. 
 
 must be in writing, 488. 
 
 parties to, 478, 488. 
 
 must contain the name of the ship, 488. 
 
 description of the voyage, 488. 
 subject of the insurance, 489. 
 perils insured against, 490. 
 promise of the insurer, 490. 
 
INDEX. 553 
 
 Policy, must contain the receipt of the premium, 490. 
 kinds of, 499. 
 interest, 499. 
 •wager, 479, 499. 
 open, 499. 
 valued, 499. 
 must contain the date, 490. 
 
 common memorandum, 490. 
 subscription, 490. 
 Polizza de carrico, 353, n. 
 Political corporation, what, 75. 
 Polyarchy, what, 12. 
 Port, what, 173. 
 
 of destination, when to be mentioned in policy, 489. 
 Positive conditions, what, 289. 
 
 fraud, what, 228. 
 Possession, what, 179. 
 
 difference between property and, 179. 
 effect of, 180. 
 Possible condition, what, 288. 
 Post office and post roads to be established by congress, 20. 
 
 why established, 419. 
 Postmaster general, duties of, 419. 
 duties of, 419. 
 liabilities of, 419. 
 Posteriora derogant prioribus, rule of, 43. 
 Postliminy, what, 219. 
 
 right of, 219. 
 Pourparlers merged in written contract, 358. 
 Precedent condition, what, 287. 
 Preceptive statutes, 48. 
 Premium, what, 487. 
 
 why so called, 487. 
 Presentment of a bill, 467. 
 
 to whom, 468. 
 
 where, 468. 
 
 when, 469. 
 
 excuses for not making a, 469. 
 
554 INDEX. 
 
 President of U. S., by whom elected, 26. 
 qualification, 27. 
 term of his office, 28. 
 time of his election, 28. 
 powers and duties of, 29. 
 
 which, exercises alone, 29. 
 
 with congress,' 30. 
 senate, 30. 
 Press, liberty of the, 92. 
 
 Presumption of payment after twenty years, 341. 
 Pret a usage, what, 438. 
 Price, what, 372. 
 
 must be serious, 372. 
 certain, 372. 
 paid in money, 373. 
 of goods lost, how ascertained, 498. 
 
 hiring, when requiring, 397. 
 essential to a sale, 246. 
 Primary obligation, what, 273. 
 Princes, effect of detention by, 496. 
 Principal contract, what, 273. 
 Prisoner, effect of a contract made by a, 227. 
 Private corporations, what, 75. 
 sale, what, 393. 
 statutes, what, 47. 
 Privateers, what, 217. 
 
 rights of, 217. 
 Privilege not to be sued, who entitled to, 281. 
 Prize, what, 217. 
 
 who may make a, 217. 
 what may be captured as a, 218. 
 in what place to be made, 218. 
 condemnation of, 220. 
 courts, jurisdiction of, 223. 
 Prochein ami, power to bind infant, 141. 
 Prohibitive statutes, what, 48, 
 Promise, what is a collateral, 363. 
 
 avoids the bar of the statute of limitations, 338. 
 of marriage need not be in writing, 364. 
 
INDEX. 555 
 
 Promissory note, what, 353, 476. 
 form of, 476. 
 representation, what, 492. 
 ■warranty, what, 491. 
 Promulgation of laws, what, 34, 35. 
 Promutuum, what, 455. 
 
 resembles a mutuum, 455. 
 Proof of marriage, what is. 111. 
 filiation, 129. 
 against filiation, 131. 
 Property, what, 168, 181. 
 analysis of, 181. 
 perfect, 183. 
 imperfect, 184. 
 personal, 184. 
 tangible, 190. 
 not tangible, 190. 
 movable, 184. 
 absolute, in possession, 186. 
 qualified, 189. 
 
 difference between possession and, 179, 
 domain and, 181. 
 real and, 177. 
 things and, 168. 
 right of, 93. 
 
 origin of the right to, 178. 
 what things are the objects of, 169. 
 literary, what, 201. 
 in unpublished works, 201. 
 possession separated from, 179. 
 changed by abandonment, 497. 
 a sale, 376, 377. 
 Prospective law, 49. 
 
 Prostitution, letting a house for the purpose of, eifect of, 296. 
 Protection, due by parents to children, 118. 
 Protest of a bill, what, 474. 
 
 form of, 474. 
 Proviso, meaning of, 285. 
 Public corporations, what, 75. 
 
556 INDEX. 
 
 Public policy, contracts against, are Toid, 236. 
 sale, what, 391. 
 statutes, what, 47. 
 things, what, 170. 
 Publication of laws, what, 85. 
 
 works, how made, 201, 202. 
 by acting, 202. 
 reciting, 202. 
 Putative father, duties of, 119. 
 
 Q. 
 
 Qualification of president, 27. 
 senators, 22. 
 
 members of the house of representatives, 25, 
 Qualified indorsement, what, 463. 
 Quality, effect of mistake as to, of a thing sold, 226. 
 
 of article sold, when warranted, 383, 384. 
 Quasi, contract of promutuum, what, 455. 
 corporations, what, 77. 
 deposit, what, 428. 
 Qui prior est in tempore, potior est in jure, maxim of, 209, 382. 
 
 tarn action, when sustainable, 450. 
 Quod nullius est id ratione naturali occupanti conceditur, maxim 
 of, 194. 
 
 R. 
 
 Rail-roads, how regulated, 175. 
 Ransom, what, 220. 
 
 bill, what, 220. 
 legal, 229. 
 Ratification of payment, 316. 
 
 Realty cannot be changed by guardian to personalty, 144. 
 Reassurance, what, 479. 
 Recapture, right of, 219. 
 Recognizance, what, 264, 342. 
 
 form of, 343. 
 Record, contracts of, 342. 
 Regular deposit, what, 428. 
 Release, what, 306. 
 
IN-DEX. 557 
 
 Release, form of a, 306. 
 kinds of, 307. 
 effect of, 307. 
 by whom to be made, 308. 
 to whom, 308. 
 Religion, advantages of, 3. 
 
 Religionists, when a connection with, a cause of divorce, 123. 
 Religious test, none allowed, 93. 
 Remedial statutes, what, 48. 
 Remedies by master against apprentice, 166. 
 apprentice against master, 166. 
 Renewal, contract extinguished by, 310. 
 Rent may be apportioned, 270. 
 Renunciation of a right, when proper, 37. 
 Repairs, when a deviation will be justified to make, 483. 
 Repeal of laws, 43. 
 
 what is a, 43. 
 effect of, 44. 
 Representation in insurance, what, 491. 
 
 must be true, 491. 
 affirmative, 492. 
 promissory, 492. 
 difference between a warranty and a, 492. 
 in life insurance, 500. 
 fire insurance, 503. 
 Representative democracy, what, 12. 
 Repugnant condition, what, 289. 
 Republic, what, 13. 
 Reputation, how secured, 88. 
 
 when general, may prove marriage, 112. 
 Res judicata, what, 326. 
 effect of, 326. 
 
 facit ex albo nigrum, ex nigro album, ex curvo 
 rectum, ex recto curvum, maxim of, 326. 
 nullius, what, 196. 
 perit domino, rule of, 248, 405. 
 publica, what, 170. 
 universitatis, what, 176. 
 Rescission of obligation, by a condition, 284. 
 
553 INDEX. 
 
 Respondentia, what, 509. 
 
 why so called, 509. 
 difference between bottomry and, 509, 
 Restraining statutes, 48. 
 Restraint of trade, contract in, is illegal, 297. 
 
 marriage, contract in, is illegal, 298. 
 Restrictive indorsement, what, 463. 
 Resolutory condition, what, 290. 
 Retrospective statute, 49. 
 
 Return into the state, will enable plaintiff to sue, 338. 
 Revocation of mandate, effect of, 437. 
 Right, what, 37. 
 
 never dies, maxim of, 329. 
 of election, what, 269. 
 Rights, enjoyment of civil, 84, 85. 
 
 constitutional, 84. 
 political, 84. 
 absolute, 85. 
 relative, 94. 
 loss of civil, 94. 
 of corporations, 79. 
 Riparian owners, rights of, 171, 173. 
 Risk, in life insurance, what, 500. 
 fire insurance, what, 502. 
 bottomry, what, 506. 
 who bears the, of a thing sold, 371. 
 Risks, what, 477. 
 
 maritime, what, 485. 
 
 nature of, 485. 
 duration of the, 486. 
 River, what, 170, 
 public, 171. 
 private, 171. 
 navigable, 171. 
 leading into the Mississippi and Saint Lawrence, are 
 
 public highways, 171. 
 bed of, who owns, 171. 
 Road, marine, what, 173. 
 highway, what, 174. 
 
INDEX. 559 
 
 Road, highway, public, 174. 
 private, 175. 
 kinds of, 174, 175. 
 Roman law, what, 52. 
 
 relating to fugitive slaves, 69, n. 
 Rule, etymology of, 2. 
 
 what, 7. See Maxims. 
 Rules of construction of contracts, 255. 
 court, force of, 50. 
 
 S. 
 
 Sale, what, 369. 
 
 elements of a, 369. 
 what contracts resemble a, 369. 
 parties to a, 370. 
 subject matter of a, 370. 
 price required in a, 372. 
 consent required, 373. 
 when property passes by a, 376. 
 delivery required in a, 377. 
 of things not in existence, effect of, 370. 
 commerce, effect of, 371. 
 chose in action, 371. 
 specific article, 371. 
 articles not specified, 371. 
 when complete, 377. 
 
 difference between a mortgage and a conditional, 350. 
 by letter when complete, 357. 
 Sales, kinds of, 388. 
 
 absolute, 388. 
 conditional, 389. 
 voluntary, 390. 
 forced, 391. 
 public, 391. 
 private, 391. 
 Salvage loss, what, 496. 
 
 on recapture, 219. 
 Sanity, what, 71, 148. 
 
560 INDEX. 
 
 Science, what, 1. 
 Sea, no property in the, 170. 
 shore, what, 174. 
 
 no property in, 174. 
 right to gems found on the, 195. 
 ■when a vessel is considered at, 486. 
 worthy, what, 480. 
 
 worthiness is a question of fact for the jury, 481. 
 Seal, contracts under, 343. 
 
 what, 344. 
 Seaman, when unable to contract, 232. 
 Secondary obligation, what, 273. 
 Self-defence, when justified, 87. 
 Seller, obligations of, 377. 
 
 when he warrants the title, 377. 
 when not, 377. 
 
 required to deliver article sold, 377. 
 rights of, 384. 
 
 to the price of thing sold, 385. 
 indemnity, 385. 
 stoppage in transitu, 385. 
 Senate, how organized, 21, 22. 
 legislative power of, 23. 
 executive power of, 23. 
 judicial power of, 24. 
 Senators, number of, 22. 
 
 by whom elected, 22. 
 qualifications of, 22. 
 time of election of, 22. 
 duration of office, 22. 
 powers of, 23. 
 Separation between husband and wife, effect of, 128. 
 Sequestration, what, 427. 
 Set, several parts of a bill, are called a, 461. 
 off, what, 327. 
 
 when allowed, 327. 
 
 between what parties allowed, 327. 
 
 must be pleaded, 327. 
 
 when it need not be pleaded, 327. 
 
INDEX. 561 
 
 Several agreement, what, 265. 
 Sex, what, 61. 
 
 wager on the, of an individual unlawful, 512. 
 Shells, found on the sea shore, right to, 195. 
 Shipper, when to pay freight, 416. 
 Ship when insured, warranted sound, 479. 
 must be manned, 480. 
 
 sea-worthy, 480. 
 deviation is justified to succor, 483. 
 must he named in policy, 488. 
 consequence of misnomer of the, 488. 
 must be employed on a lawful voyage, 481. 
 Ships, laws extend over, 56. 
 Shore of a river, who owns, ,172. 
 Sickness, when an excuse for not presenting a bill, 470. 
 Signs, contract entered into by, 226. 
 Signature to agreement, form of, 367. 
 Silence, effect of, on a contract, 226. 
 Simple contract, what, 352. 
 interest, what, 447. 
 Single bill, what, 347. 
 
 Skill, workman must perform his work with, 403. 
 Slave, state of a, 57. 
 
 marriage by a freeman of a, by fraud, 105. 
 when unable to contract, 232. 
 carrier when not liable for loss of, 415. 
 Slavery, when presumed, 70. 
 Slaves, who are, 67. 
 
 condition of, 68. 
 fugitive, 69. 
 in Rome, 69 n. 
 how manumitted, 70. 
 Smithsonian Institution, entitled to new books, 205. 
 Socage, guardian in, 140. 
 Society, origin of, 1. 
 Sold note, effect of, 367. 
 Soldiers, domicil of, 99. 
 Sole corporation, what, 75. 
 Solvere, what, 313. 
 Vol. I. 36 
 
562 INDEX. 
 
 Sovereignty, what, 8. 
 
 by whom exercised, 9. 
 how divided, 9. 
 
 how exercised in the United States, 16. 
 Specialty, what, 343. 
 
 not within the act of limitations, 331. 
 Specification, what, 199. 
 
 to obtain a patent, 212. 
 Specimens to obtain a patent, 212. 
 Speech, liberty of, 92. 
 Spendthrift, what, 151. ' 
 Spondet peritiam artis, maxim of, 403. 
 State governments, what, 32. 
 of a person, 58. 
 
 public, 60. 
 private, 60. 
 loss of the, 60. 
 States are foreign to each other, 83. 
 Stat. 3 Hen. c. 4, 263. 
 27 Eliz. c. 4, 263. 
 11 Geo. 11., c. 19, s. 15, 271. 
 29 Car. II., c. 3, 278, 361, 374. 
 32 H. VIII., c. 2, 329. 
 21 Jac. I., c. 16, 329. 
 Statutes, what, 46, 264. 
 public, 47. 
 private, 47. 
 declaratory, 47. 
 remedial, 48. 
 preceptive, 48. 
 prohibitive, 48. 
 permissive, 48. 
 penal, 48. 
 temporary, 48. 
 perpetual, 48. 
 enlarging, 48. 
 restraining, 48. 
 affirmative, 49. 
 negative, 49. 
 
INDEX. 563 
 
 Statutes, prospective, 49. 
 retrospective, 49. 
 
 of frauds, writing required by the, 361. 
 Stock of a corporation, what, 80. 
 
 how classed as property, 189. 
 Stoppage in transitu, right of, 385. 
 
 by whom, -386. 
 
 what goods subject to, 386. 
 
 time of, 386. 
 
 what is a sufficent, 387. 
 
 effect of, 388. 
 Stratocracy, what, 13. 
 
 Stress of weather, deviation justified by, 482. 
 Subrogation, what, 321. 
 Subscription list, sale of, 371. 
 Subsequent condition, what, 287. 
 Substitution, what, 321. 
 Succession in a corporation, 79. 
 
 Succor, when a ship may deviate from her course to render, 483. 
 Suicide, what, 500. 
 
 when it avoids policy, 500. 
 Superscription of a bill of exchange, what, 458. 
 Suppressio veri, consequence of, 504. 
 Suppression of a fact, when a concealment, 493. 
 Suretyship, what, 278. 
 Surrender of a corporation, effect of, 82. 
 Suspension of obligation, by candition, 284. 
 Suspensive condition, what, 290. 
 Syndics, who are, 80. 
 
 T. 
 
 Tacit laws, what, 50. 
 
 Tasting, sale on condition of, 390. 
 
 Taxes, how laid, 20. 
 
 Temporary statutes, what, 48. 
 
 Tenancy in common of personalty, 193. 
 
 Tender, effect of a, 449. 
 
 Term, in contracts, what, 279. 
 
564 INDEX. 
 
 Term, in contracts, certain and uncertain, 279. 
 express or implied, 279. 
 when of right, 280. 
 
 postponed, 280. 
 whether performance of a contract may be 
 before the expiration of the term, 282. 
 Terminus ad quem, what, 283. 
 
 a quo, what, 283. 
 Territory, what, 55. 
 Testamentary guardian, 140. 
 Theocracy, what, 11. 
 Things, what, 168, 176. 
 
 difference between property and, 168. 
 corporeal, 169. 
 incorporeal, 169. 
 in patrimonio, 169. 
 extra patrimonium, 169. 
 common, 170. 
 public, 170. 
 Thirty years, legitimacy presumed after, 113. 
 Third persons, effect of fraud on, 261. 
 
 , perso'n, effect of a consideration from a, 240. 
 Time, when contract is extinguished by lapse of, 323 
 Title to chattels, how acquired, 198. 
 original, 198. 
 derivative, 198. 
 when warranted, 383. 
 things acquired by war, 210. 
 Total loss, what, 494. 
 
 Trade, contract in restraint of, is illegal, 297. 
 when illegal, 298. 
 of merchandise, what, 332. 
 Trades, what, 160. 
 Treasure trove, what, 196. 
 Treaties, how made, 30. 
 
 force of, 46. 
 Treaty making power, \yhat, 30. 
 Trial, sale made on condition of, 390. 
 Trusts not barred by act of limitation, 333 
 
INDEX. 565 
 
 Trustees, incapacities of, to contract, 232. 
 Trying thing sold, sale on condition of, 390. 
 Turnpikes, regulations relating to, 175. 
 Tutor, who is a, 138. 
 
 domini loco habetur, maxim of, 144. 
 Tutorship, -what, 138. 
 
 Twenty years, effect of lapse of, upon a debt, 341. 
 Tyranny, what, 12. 
 Tyrant, what, 12. 
 
 U. 
 
 Unconditional contract, what, 284. 
 
 Unconstitutional laws, 47. 
 
 Undertaker, who is an, 400. 
 
 Unliquidated damages do not bear interest, 446. 
 
 Unsoundness of mind, what, 150. 
 
 Usage enters into every contract, 247, 259. 
 
 Use of property, right to, 178. 
 
 thing loaned, borrower entitled to the, 440. 
 Usurious contracts, illegal, 299. 
 Usurped power, what, 502. 
 Usurper, what, 12. 
 Usury, what, 299, 450. 
 
 penalty for taking, 450. 
 
 mistake in calculation will not make, 452. 
 
 discount of a note when not, 452. 
 
 an agreement to return principal, required to constitute, 
 452. 
 
 there must be an agreement to pay, 453. 
 
 when additional compensation is not, 453. 
 
 paying in anticipation, and taking greater interest than 
 is allowed by law, not, 454. 
 
 agreement to pay interest must be positive and not con- 
 ditional to make, 454. 
 
 intention required to make, 454. 
 
566 INDEX. 
 
 V. 
 
 Valuable consideration, 239. 
 Value received, effect of, 460. 
 
 of goods, how ascertained, 498. 
 Valued policy, what, 499. 
 
 Verba fortius accipientur contra proferentem, maxim of, 257. 
 Vice president, election of, 31. 
 Violence, effect of, on a contract, 226, 228. 
 Vis major, when an excuse for not presenting a bill, 470. 
 Void, when a contract is, 296, 303, 243, 
 when statute makes a contract, 303. 
 entire contract, when, 304. 
 marriage, what, 113. 
 Voidable marriage, what, 113. 
 
 Voluntary departure from voyage, effect of, on policy, 482. 
 deposit, what, 427. 
 sale, what, 390. 
 Voyage, what, 481. 
 
 to be insured must be lawful, 481. 
 
 effect of illegality of the, 481. 
 
 commencement of a, 486. 
 
 end of, 487. 
 
 must be described in policy, 488. 
 
 W 
 
 Wager policy, what, 479, 499. 
 Wagers, what, 511. 
 
 when lawful, 511. 
 unlawful, 511. 
 illegal, 298. 
 Waifs, who is entitled to, 196. 
 War, congress may declare, 20. 
 
 effect of, to suspend interest, 446. 
 title to things acquired by, 216. 
 Warrant of attorney, what, 351. 
 
 form of, 351. 
 Warranty in fire insurance, 503. 
 
INDEX. 567 
 
 Warranty of a thing sold, 383. 
 
 when express, 383. 
 implied, 383. 
 title, 383. 
 quality, when, 383. 
 in insurance, what, 491. 
 aflSrmative, 491. 
 promissory, 491. 
 express, 491. 
 implied, 491. 
 Warehouseman, who is, 406. 
 
 liabilities of, 406. 
 Weather, when bad will justify a deviation, 482. 
 Weighing, sale on condition of, 389. 
 Wharfinger, who is a, 407. 
 
 liabilities of, 407. 
 White persons, rights of, 17. 
 
 who are, 17, 70. 
 Wife, obligations of, 116. 
 rights of, 117. 
 incapacities of, 231. 
 domicil of, 98. 
 subjection of, 62. 
 Wild animals, right to, 194. See Animals. 
 Woman, what, 61. 
 
 rights of, 62. 
 subjection of, 62. 
 Words, meaning of, currency, 458. 
 
 to deliver money, 458. 
 
 current in the city of New York, 458. 
 
 responsible, 458. 
 
 accountable, 458. 
 
 pay, 459. 
 
 deliver, 459. 
 
 sans frais, 461. 
 
 retour sans protet, 461. 
 
 sans recours, 463. 
 
 accepted, 466. 
 
 accepts, 466. 
 
568 INDEX. 
 
 Words, meaning of, seen, 466. 
 
 presented, 466. 
 
 interest or no interest, 479. 
 
 sound and in good order, 479. 
 
 ■whom it may concern, 478, 486. 
 
 from port to port, 486. 
 
 at sea, 486. 
 
 on a passage, 486. 
 Work to be well done by hirer, 402, 403. 
 
 when to be done, 403. 
 Workman, who is a, 400. 
 Wrecks, what, 196. 
 Writing, contracts in, 343. 
 
 not in, 357. 
 statute requires contracts to be in, 361. 
 
 Y. 
 
 Year, promises to be performed within one, 365. 
 Young of animals, right to the, 198. 
 
 END OF VOL. I. 
 
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 order and classification of the subjects, (a very important characteristic m such a work,) seem to 
 me of the very best. The learned author appears to have fulfilled the promise of his preface, in 
 giving a valuable "preliminary work to serve the young American student as a guide in the labyrinth 
 of the law;" and "a general view to the several parts of judicial science in a method which should 
 be adopted in the study of law." 
 
 Every well educated man, even if he do not intend to follow the profession of the law, should de- 
 sire an acquaintance with its general principles. This work furnishes such a synopsis, and is com- 
 piled with great research, industry and judgment. Its great merit is its classification and order, 
 without which the science of the law appears a confused and.unintelligible mass. As a first book 
 for students it is certainly valuable. The practising lawyer will also find it a convenient manual. 
 To Robert E. Peterson & Co. R. C. GRIER. 
 
 From Hon . James M. "Wayne, one of the Associate Judges of the Supreme Court of the U. Slates. 
 
 Savannah, November 4, 1851.' 
 
 Dear Sir — I am obliged to you for Mr. Bouvier's Institutes of American Law. Present my re- 
 spects to him if you please, with my congratulations upon his having given to the profession a work 
 oi so much merit and real ability. 
 
 I have given the last two days to the examination of it. 
 
 It has revived my recollection of several points with which I am not as familiar as I used to be, 
 instructed me in others about which I was not as well informed before. I shall often have occasion 
 to use it officially ; and as a preliminary work for the teacher and student of jurisprudence, I do not 
 doubt that it will supply the want in every particular, indicated in the preface of the author. 
 
 I am, dear sir, very respectfully your obedient servant, JAMES M. WAYNE. 
 
 Robert E. Peterson, Esq. 
 
 From the Hon. H. W, Green, Chief Justice of New Jersey. 
 
 Trenton, N. J., October 23, 1851. 
 Dear Sm— I have devoted Ihe first leisure moments at my command, since my returi home, 
 after an absence of several weeks, to an examination of the " Institutes of American Law.?; The 
 volumes contain an admirable compend of legal principles. They will prove an acquisition to toe 
 student, and a valuable addition to the library of every lawyer. 
 
 Most respectfully, your obedient servant, HENRY W. GREEN. 
 
 Mr. Robert E. Peterson. 
 
 From the Hon J. Nelson, one of the Associate Judges of the Supreme Court of the United States. 
 Mr. Robert E Peterson. Cooperstown, Aug. 24, 1853. 
 
 UEAE biR—I have delayed thanking you for a copy of Judge Bouvier's "Institutes of American 
 Law, till I had an opportunityto look mto the work and express an opinion upon its merits. My 
 exammation of it is yet limited ; but, I am free to say, that as far as it has gone I am very favoAbly 
 impressed with the plan, and with the great industry and accuracy evinced in the execution. 'The 
 four volumes embody a vast amount of American law, so condensed and arranged as to be studied 
 not only wuh pleasure and profit by the student, but to be referred to readily and most usefully bv 
 the practitioner. Very respeclfully yours, J. NELSON 
 
BOUVIER'S L.AW DICTIONARY, 
 
 New Edition. 
 
 A LAW DICTIONARY, 
 Adapted to the Constitution and Laws of the United States of America, and of the 
 several States of the American Union ; with reference to the civil and other systems of 
 Foreign Law. By John Bouvier. New edition, revised, enlarged, and greatly improved. 
 2 vols. roy. 8vo. best law binding. Price $10. 
 
 In presenting to the legal profession the New Edition of Bouvier's Law Dictionary, the 
 Trustees of the Estate of the late John Bouvier, feel that it would be a worli of supere- 
 rogation, to say a word in its praise. It has been now known to the profession for up- 
 wards of thirteen years, and its author has received from some of its greatest luminaries — 
 a Story, a Kent, and a Greenleaf, high commendation and praise, for having made " so 
 valuable an addition to their professional apparatus," stating, " that for extent of re- 
 search, clearness of definition and illustration, variety of matter and exactness of learning, 
 it is not surpassed by any in use, and on every account is preferable to them all." In 
 England, it is considered the most elaborate work of the kind yet published, and is 
 recommended to be placed in every law library. The present edition embraces the last 
 revisions, improvements, and additions of its author, and contains about one-third more 
 matter than the previous edition. Under one head, that of maxims, about fifteen hun- 
 dred new articles have been added. The present edition is much handsomer than any 
 of its predecessors ; the size and width of the page has been enlarged, it has been printed 
 with an entirely new fount of type, on the best paper, and bound in the best manner, and 
 now equals, if it does not exceed in beauty, any other law book printed here or elsewhere. 
 Notwithstanding its increase of size, and its great improvement in typographical beauty, 
 the Trustees, in order to extend its sale and usefulness, have resolved to keep it at the 
 price of the former edition. Ten Dollars. 
 
 From Joseph Story, LL. D. 
 
 Cambridge, Sept. 28, 1839. 
 Dear Sir — I have the pleasure to acknowledge the receipt of your letter of the 19ih instant. The 
 sheets of your Law Dictionary, which you had the goodness to send me, I received at the same 
 time. I have examined them with considerable care, and do not hesitate to say that the work will 
 be a very important and most useful addition to our Judicial Literature. It supplies a defect in our 
 libraries, where the small Dictionaries are so brief as to convey liltle information of an accurate 
 nature to students, and the large ones are rather compendiums of the law, than explanatory state- 
 ments of terms — yours has the great advantage of an intermediate character. It defines terms, and 
 occasionally explains subjects so as to furnish students at once the means and the outlines of know- 
 ledge. I will Jeel myself greatly honored by the dedication of the work to me, although I am 
 fully sensible there are many other gentlemen who have far better claims to such a distinction than 
 myself. Believe me, dear sir, with the highest respect, truly your obliged friend, 
 
 The Honorable JtxoGE Bouvier. JOSEPH STORY. 
 
 Cambridge, January 7, 1840. 
 My Dear Sir — I had the pleasure a few days ago to receive the second volume of your Law 
 Dictionary, for which I return you my very sincere thanks. The opinion which I formed of its 
 great merit in examining the sheets which I formerly received of the first volume, is fully confirmed 
 by an examination of the second. It is, indeed, a most truly valuable work. I am g:ratified in 
 having my name connected with your enterprise, and I trust you will receive from a liberal pro- 
 fession that full approbation and compensation which are so justly due to such useful labors. Pro- 
 fessor Greenleaf and myself shall recommend it to the attention of all our Law Students. With 
 the highest respect, truly your obliged friend, JOSEPH STORY. 
 
 Tbe Honorable Judge Bouvier — ■ — • 
 
 From the Hon. Simon Greenleaf. 
 
 Cambridge, December 17, 1839. 
 Dear Sir — Your letter of October 30th, with the accompanying first volume of your Law Dic- 
 tionary, did not reach me till this day. The second volume, from a source till now unknown, was 
 received a few days ago. I had previously looked over those belonging to Mr. Justice Story. I 
 pray you, dear sir, to accept my unfeigned thanks, not only for the books, which will be highly 
 prized, but for having made so valuable an addition to our professional apparatus. For extent of 
 research, clearness of definitions and illustration, variety of matter, and exactness of learning, it is 
 not surpassed by any in use, and, on every account, I think, is preferable to them all. 
 
 I am, dear sir, with sincere respect, your obedient servant, SIMON GREENLEAF. 
 
 Hon. J. Bouvier. 
 
 From Chancellor Kent. 
 
 New York, November 20, 1839. 
 Dear Sir— I have the pleasure to acknowledge the receipt of your letter, of the 30th ult., accom- 
 panied with your " Law Dictionary," and for which I sincerely thank you. 
 
 I have not been insensible to the value of the gift, for I have run over almost every article in it, 
 and beg leave to add, that I have been deeply impressed with the evidences throughout the volumes 
 of the industry, skill, learning and judgment with which the work has been compiled. I have 
 found it very instructive; and shall not fail to recommend its utility to the student, whenever a due 
 opportunity occurs. 
 
 With my best wishes for you health, and for perseverance m your labors for the honor of the 
 profession, I am, respectfully and truly yours, JAMES KENT. 
 
 Hon. John Bouvier. 
 
From the Hon. Simon Gbeenleaf, Author of " Greenleaf on Evidence," etc., etc. 
 
 Cambridge, April 6, 1853. 
 Messrs. R. E. Peterson & Co. — Dear Sirs — I return my grateful acknowledgments for the 
 copy of the fourth edition of Judge Bouvier'sLaw Dictionary, which you have done me the honor 
 to present. I was not aware that the woric had passed through so many editions, though the repu- 
 tation of the author as a learned and accurate lawyer would well have justified such an expectation. 
 1 regard it as a reliable work of great merit, and am happy to observe that the present edition is 80 
 much enlarged and improved, particularly in the article of law maxims,' in which it is greatly en- 
 riched. I remain, dear sir, your much obliged and obedient servant, 
 
 SIMON GREENLEAF. 
 
 From the Hon. Roger B. Taney, Chief Justice of the United States. 
 
 Baltimore, May 11, 1853. 
 Dear Sir — Unavoidable circumstances have prevented me from acknowledging sooner the re- 
 ceipt of the copy of the late Judge Bouvier's Law Dictionary. 
 
 1 have looked into the work with attention, and think it SUPERIOR, as a haw Dictionary, 
 to any other work of that character which I have had an opportunity of examining. The num- 
 ber of heads in which it is arranged, and the cases cited to support and illustrate the principles stated, 
 add much to its value. It is a very convenient book to refer to, especially when one is pressed for 
 time. 
 
 I am glad to hear that his Institutes of American Law have been so successful. They certainly 
 deserve it. With great respect, I am, dear sir, your obedient servant, 
 
 Robert E. Peterson, Esq., Phila. R. B. TANEY. 
 
 From the Hon. John McLean, one of the Associate Judges of the Supreme Court of the U. States. 
 
 Bouvier's Law Dictionary is a work so well known to the profession and so highly appreciated 
 that no commendaiion of it is necessary. IT IS AN ELABORATE PRODUCTION UN- 
 EQUALLED BY ANY OTHER OF THE KIND IN THIS COUNTRY OR IN ENGLAND. I 
 have before me the fourth edition revised, improved, and greatly enlarged, published in 1852. This 
 edition is nearly one third larger than the preceding one. The greater part of the matter for 
 this edition was prepared by the distinguished author before his lamented decease in 1851. Some 
 additions have since been made and several errors corrected on a careful revision of the former 
 editions, by two members of the bar, so thai the present edition is not only the largest but the most 
 valuable. 
 
 NO LAWYER'S LIBRARY IS COMPLETE WITHOUT THIS VALUABLE WORK; 
 ITS PLACE CANNOT BE SUPPLIED BY AN Y OTHER PUBLICATION WITH WHICH- 
 I AM ACQUAIM TED. JOHN McLEAN. 
 
 Cincinnati, May 2, 1853. 
 
 From tho Hon. Benj. Robbins Curtis, one of the Associate Judges of the Supreme Court of thf 
 
 United States. 
 Messrs. R. E. Peterson, & Co. Boston, April 14, 1853. 
 
 Gentlemen — I received the copy of Bouvier's Law Dictionary, which you did me the honor t 
 send to me. I have examined it with some care, and have pleasure in expressing my opinion thf 
 it is a work of much importance to students and very useful to practitioners of the law. Compare ^ '■ 
 with any other similar work which has fallen under my notice, I should not hesitate to give 
 a DECIDED PREFERENCE, as being far m,ore fall and comprehensive than any other, and . 
 have seen no reason to question its accuracy. 
 
 Wilh much respect, I am your obedient servant, B. R. CURTIS. 
 
 From the late Hon. Henry Baldwin, one of the Justices of the Supreme Court of the United States^ 
 
 to the Author. 
 Dear Sir — I thank you for the copy of your Law Dictionary, which you were kind enough tr 
 present to me, and shall preserve it as a pleasing proof of your friendship. I have too little time tc 
 examine the work throughout, but have read many parts of it attentively, and with much pleasure 
 You have bestowed upon it much labor in the colleclion of the matter, and shown great judgment 
 in its arrangement and condensation, in which respects it is what such a work ought to be, a digest 
 as well as a book of definitions. Such an one has long been wanting by the profession, and in my 
 opinion, yours is not only the best which has been published, but is in "itself a valuable acquisition 
 to the bar and bench, by which both will profit. : 
 
 "Bouvier's Law Dictionary, is an American work of the most elaborate character, as compari' 
 withEnglish works of a similar nature." — Jby'a Letters on Legal Education in England a 
 Ireland. 
 
 Sir — The high reputation of your " Law Dictionary" must be my excuse for asking the favor ■■( 
 your acceptance of the accompanying " Letters on Legal Education," the object of which is 
 rouse the mind of the profession in these countries to follow in the course which has been pursue 
 so successfully of late years in America, and which was, in olden times, the course adopted at ?■'>:«! 
 English Inns of Court. I have the honor to remain, sir, your ob't servant, HENRY H. JOY' 
 
 Mountjoy Square, Dublin, June 24, 1847. ' ' ' 
 
 ToHon. J. BouviER. 
 
 From the late Hon. Archibald Randall, Judge of the District Court of the United States for th^ 
 Eastern District of Pennsylvania. 
 
 Dear Sir— I have delayed noticing the second edition ot'^your Law Dictionary, until I could hav 
 an opportunity carefully to examine its contents. Afier such an examination 1 have no hesilatioi. 
 in recommending it to the profession generally, and specially to those of, limited libraries, as one of 
 the most useful works of the kind in print. 
 
 From the Hon. J. Nelson, one of the Associate Judges of the Supreme Court of the United States. 
 RoBT. E. Peterson, Esq. Cooperstown, Aug. 24, 1853. 
 
 Dear Sir— I wish to thank you for a copy of Judge Bouvier's " Law Dictionary," which has been 
 very much enlarged and improved, and the words and phrases in law language explained, and illustrft- 
 ted by copious references not only to standard elementary works, but to adjudged cases. Thewflc 
 affords a valuable acquisition to the law library in addition to the " Institutes." ' 
 
 Very respectfully yours, J. NELSON; 
 
From the Western Law Journal, Cincinnati, March, 1853. 
 Botjvier's Institutes of American Law.— To a student entering upon any new pursuit, the 
 first and indispensable requisite to a cheerful and intelligent progress is lo obtain clear and definite 
 outlines of the whole subject. A celebrated American scholar advised slude'ntsof history to begin 
 with children'sbooks, and he showed great wisdom in that advice. In the science of the law, which 
 extends over the whole field of human affairs, which is diffused through thousands of volumes, 
 and to master any prominent branch of which is the labor of a lifetime, this want is peculiarly 
 felt. To no pursuit, probably, do men ever come with such indefinite and confused ideas of its 
 nature, as do students to the law. Their preparatory studies have not trained them to any prac- 
 tical regard for the actual difficulties which attendlhe administration of justice. The wisdon which' 
 would administer as much of human justice as is consistent with human nature, finds no place in 
 their philosophy. Forgetting entirely that there is any wisdom in the experiences of the past, 
 they too often evince a spirit which in practice would require the whole fabric of the law to be 
 Iprn in pieces, and reconstructed solely with a view to this present time, and lo their ideas of 
 abstract right. 
 
 This is not the spirit of actual life. To adhere to old and known forms, as exponents of old 
 and settled principles, is characteristic not of lawyers merely, but of human kind. Even in dress, 
 which is everywhere the favorite subject upon which mt-n exercise their whims and caprices, the 
 same general outline is preserved from age to age. 
 
 The disposition alluded to is one of the greatest obstacles in learning our profession. He who 
 is always quarreling with a rule, is sure to misconceive its true bearings. In matters of science 
 as well as of religion, it was remarked bv Lord Bacon, it is only the meek, the candid, the serious 
 inquirer that obtains true knowledge. This disposition is fostered by a clear view of the whole 
 subject. One-sided views are almost always erroneous views. Whoever, therefore, shall con- 
 cisely state the elementary principles of any science, does mankind great service. This, Judge 
 Bonvier has done for students of the legal profession, in his Institutes of American Law. "His 
 chief aim has been," as is stated in his preface to the first volume, "to point out the rules and 
 maxims of the law, as principal landmarks to the student, and tp enable him, by keeping a con- 
 stant eye upon these summits of the law, to pursue his onward course, without ever losing him- 
 self; for these rules, after having inspired the law, still remain with it and in its midst, in some 
 sort, as the lamp in the sanctuary, enlightening the parts where the law applies, and pointing out 
 those which it cannot reach." 
 
 The work is divided into five books. The first treats of natural and artificial persons, and of 
 the enjoyment and loss of civil rights. Under these heads, the author stales the law of the per- 
 sonal status, of husband and wife, parent and child, citizens and aliens, freemen and slaves; the 
 nature, rights, powers and privileges of corporations and the mode of their dissolution ; political, 
 absolute, and relative rights; expatriation, domicil, absentees, marriage, paternity and filiation, 
 Unfancy and guardianship, sanity and insanity, the relation of master and servant, and apprentices. 
 The second book treats of liie general nature of things; of personal property, of the diiferenl 
 .nodes 3f acquiring person chattels, by original acquisition, and by intellectual labor; of the title 
 ''-0 things acquired by war, of the manner of acquiring property by contract, of the effect of con- 
 firacts, of the different kinds of agreements, of the extinction of obligations, of the forms of agree- 
 >nents, of the statute of frauds, of sales, bailments, bills of exchange, notes, marine insurance, in- 
 '.surances on life and against fire, of bottomry and respondentia bonds, of wagers, of agency, of 
 * uretyship, of partnership; of title to personal property by operation of law; of real- property, 
 aereditaments, easements, profits a prendre, rents, and the whole law of real estate, including the 
 mode of Its acquisition and transfer, and the instruments of conveyance. 
 
 The third book treats of injuries and wrongs, the fourth of remedies, and the fifth of equity 
 tj'Urisprudence and pleadings. 
 
 The plan and arrangement of the work are admirable, its statements clear and condensed into 
 "■brief and simple language, and all "details, which would confuse the reader without enlightening 
 'him," are avoided. The student will find in these volumes a clear and intelligible outline of the 
 •law, in which the substance of voluminous works is stated within the compass of a few pages; 
 \and the practitioner, who is at a loss for a condensed statement of a rule, or for authorities lo sus- 
 '?ain it, will, by the aid of an index unusually full and complete, readilv find what he desires. 
 ' In the va-t multiplication of law books in late years, gentlemen, whose means compel them to 
 'select the few good ones, are frequently at a loss liow to make the selection. Some prefer the re- 
 ports and purchase them exclusively, while others rely whollyon text writers. There is an error 
 ,iii both extremes. He who reads reports only is very apt to lose sight of the principle, to acquire 
 ' Airtial and distorted views of the subject, and a habit of mind that puts him at fault when he is 
 "nable to find a case precisely parallel with the one under investigation. On the other hand, the 
 ) jader of text writers exclusively, from the habit of surrendering his judgment constantly to the 
 '■'jpinion of the author, unfits him-elf for independent investigation. His power of analyzing is not 
 ''Jailed forth ; and the process of applying the rules of law to a complicated slate of facts is novel 
 "i nd diflicult, if not, in the end, impossible. The true use of a book is to aid, not to dispense with 
 ought ; and the text of an author upon legal lopics should be, to the lawyer, simply a formula, 
 1 jm which to work out the rule of law. Regarded in any other light, the cilation of authorities 
 would be quite u-eless. Such a work as judge Bouvier's, constructed, as he intimates in his 
 preface, upon the theory that the student will combine an accurate knowledge of the text with a 
 ^constant reference to the authorities, will afford a great aid m legal education. He stales the 
 principle, cites the ca-^e in the note al the foot of the page, and leaves the rest to the reader's own 
 ^diligence and meditation. He seldom enlarges on a rule, or seeks to attack or vindicate it. This 
 ''is a great merii in a text writer. Students must lake rules as laid down in the books, at the com- 
 mencement of iheir studies, as axioms. Their nolions are necessarily crude and imperfect. It 
 there are substantial objections to ihe rule, they will find il out as soon as it is material that they 
 should know il, without relying whollyon the opinion of the author, and being prejudiced, it may 
 be bv that opinion. From a very attentive examination of this work, we are able to recommend 
 it to law siudenls and practitioners as a inalerial aid to Iheir studies and investigations. It is ot 
 course eleinenlary, and does not propose to supersede such works as Kent's Commentaries, 
 "reenleaf on Evidence, or Story's Equiiy Jurisprudence ; but to prepare the beginner, by furnish- 
 y).!"- him with a methodical view of- the whole law, and a concise statement of the principal rules 
 'un°der each branch of it, and a reference to the authorities where fuller details may be learned, 
 for the study of works constructed with a more immediate reference to the wants of practitioners. 
 
KF 380 B78 
 
 Author Vol. 
 
 Bouvier, John 
 
 Title Copy 
 
 Institutes of American law vol.l 
 
 
 
 Date 
 
 • 
 
 Borrower's Name 
 
 
 
 
 
 
 
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