Kf m OJornfU Ham ^rlimil Idthrara KF SBs.plfiea'i"'"^"'"' '-""^'^ The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018877369 LAWS OF BUSINESS ALL THE STATES OF THE UNION, AND THE DOMINION OF CANADA. FORMS AND DIRECTIONS FOR ALL TRANSACTIONS. ABSTRACTS OF THE LAWS OF ALL THE STATES ON VARIOUS TOPICS. BY THEOPHILUS PARSONS, LL.D., LATE PROFESSOR OF LAW IN HARVARD UNIVERSITY, CAMBRIDGE, AND AUTHOR OF TREATISES ON THE LAW OF CONTRACTS, ON MERCANTILE LAW, ON THE LAW OF PARTNERSHIP, ON THE LAWS OF PROMISSORY NOTES AND BILLS OF EXCHANGE, ON THE LAW OF INSURANCE, AND ON THE LAW OF SHIPPING AND ADMIRALTY. GREATLY ENLARGED AND IMPROVED. HARTFORD: S. S. ScRANTON & Company. 1881. I3S0! Copyright, 1880, by THEOPHILUS PARSONS. CONTENTS. CHAPTER I. THE PURPOSE AND USE OF THIS BOOK. To bring the laws of Business within the Reach of all Persons, . . 23 PAGE, CHAPTER II. BUSINESS LAW IN GENERAL. The Principles on which it rests, 27 CHAPTER III. INFANTS OR MINORS. Form I. — Promise in Writing, 34 CHAPTER IV. APPRENTICES. Forms. Form 2. — A General Indenture of Apprenticeship as sometimes used in New England, > • 35 3. — Shorter Indenture of Apprenticeship, 36 CHAPTER V. MARRIED WOMEN. Abstract of the Law of Husband and Wife in the Several Slates, . 40 (3) CONTENTS. Forms. Form 4.— Indenture to put in Trust the Property of an Unmarried Woman, "' 5.— Another Form of Indenture in Trust, for Property of Un- married Women, ...-..•• 6j CHAPTER VI. AGREEMENT AND ASSENT. Section I.— The Legal Meaning of Agreement, . . .69 II.— What is an Assent, 71 III. — Offers made on Time, 72 IV. — A Bargain by Correspondence, 73 V. — What Evidence may be received in Reference to a Written Contract, 74 VI. — Custom or Usage, 76 Forms. Form 6. — General Agreement, sufficient for many Purposes, . . 79 7. — General Agreement, as used in the Western States, . . 79 8. — General Contract for Mechanic's Work, .... 80 9. — Agreement for Purchase and Sale of Land, in Use in the Middle States, 81 10. — Agreement for Sale of Land, in Use in the Western States, 81 II. — Agreement for Warranty Deed, used in the Western States, 84 12. — Contract to convey Real Estate, in use in the Middle States, 84 13.' — Agreement for the Purchase of an Estate, in use in New England, .......... 86 14. — Agreement for the Sale of an Estate by Private Contract, 89 15. — Agreement to be signed by an Auctioneer, after a Sale by Auction, 89 16. — Agreement to be signed by the Purchaser, after a Sale by Auction, .......... 90 17. — Agreement to make an Assignment of a Lease, ... 90 18. — Agreement for making a Quantity of Manufactured Articles, 90 19. — Agreement between a Trader and a Bookkeeper, . . 91 20. — Ajreement for Damages in laying out or altering Road, . 92 21. — Agreement between a Person who is retiring from the Active Part of a Business, and Another who is to con- duct the same for their Mutual Benefit, . 92 CONTENTS. S Form 22. — Brief Building Contract, 94 23. — Full and Minute Building Contract, 95 24. — Specification to be annexed to the Building Contract, . 99 CHAPTER VII. CONSIDERATION. Section I. — The need of a Consideration, m II. — What is a sufficient Consideration, 112 III. — Illegal Consideration, . . . . , . , .115 IV. — Impossible Consideration, ....... 115 V. — Failure of Consideration, 116 CHAPTER VIII. BONDS. Essentials of a Bond, 118 " Condition'' of the Bond, 119 Forms. Form 25. — Simple Bond, without Condition, 120 26. — Bond for Payment of Money, with a Condition to that Effect, with Power of Attorney to confess Judgment annexed, 120 27. — Bond for Conveyance of a Parcel of Land, . . . .121 28. — Bond for a Deed of Land, with Acknowledgmei.t before Notary Public, 122 29. — Bond in Another Form, for Conveyance of Land, with Acknowledgment, 123 30. — Bond to Corporation for Payment of Money due for Con- tribution to Capital Stock, with Power of Attorney to confess Judgment, 124 CHAPTER IX. ASSIGNMENTS. Instruments to which the term is particularly given, , . . .126 CONTENTS. Forms. Form 31. — Brief Form of an Assignment to be indorsed on a note, or any Similar Promise or Agreement, 127 32. — General Assignment, with Power of Attorney, . . -1-7 33. — Assignment of a Bond, 128 34. — Assignment of a Bond, with Power of Attorney, and a Covenant .... 128 35. — Assignment of a Judgment, in the Form of an Indenture, 129 36. — Assignment of Wages, with Power of Attorney, , . 129 CHAPTER X. SALES OF PERSONAL PROPERTY. Section I. — What constitutes a Sale, 130 IL — Delivery and its Incidents, 135 in. — Contracts Void for Illegality or Fraud, . . . .140 IV. — Sales with Warranty, 142 T'o!-ms. Form 37.— Bill of Sale of Personal Property 145 38.— Bill of Sale of Personal Property, with a Condition to make it a Mortgage with Power of Sale, . . . .146 Section V.— The Sale of One's Business, 147 CHAPTER XL STOPPAGE IN TRANSITU. Derivation and Meaning of the Term, j .g Rights of Parties in Goods in Transitu, ...!!" 148 CHAPTER xn. GUARANTY. Forins, Form 39. — Guaranty to be indorsed on Note 40.— Guaranty of a Note on Separate Paper, 154 154 CONTENTS. 7 PAGE. Form 41. — Guaranty in Another way, 154 42. — Letter of Guaranty, . . . . . . . .155 43.— Guaranty with Collaterals, authorizing Sale, . . .155 44. — Guaranty with ColLUerals, pron^ising Additional Security, or authorizing Sale, irr CHAPTER XIII. THE STATUTE OF FRAUDS. Section I. — Its Purpose and General Provisions, n. — Promise to pay the Debt of Another, III. — Agreement not to be performed within a year, IV. — The Form and Subject-Matter of Agreement, 156 159 160 CHAPTER XIV. PAYMENT AND TENDER. Section I. — How Payment may be made, 161 II. — Appropriation of Payment, 163 CHAPTER XV. RECEIPTS AND RELEASES. Remarks on the Nature of Receipts, and Degrees of Fullness thereof, 164 Forms. Form 45 46. 47- 48, 49, SI 52. 53 S+ IS S6, nder a Co , — Receipt for Money, , — Another Form of Receipt for Money, , — Receipt for Papers or other Articles, , — General Release, Mutual General Release by Indenture Release from Creditors to a Debtor . — Release of all Legacies, , — Release of a Bond, it being lost, , — Release of a Judgment, , — Release of a Condition, Release of a Covenant contained in an Indenture of Lea=-.e Release in Extinguishment of a Power, . . . . iposition. 164 164 164 165 166 166 166 167 168 169 i6g 170 8 CONTENTS. PAGB. FoM-.) ^7.— Release from a Lessor to a Lessee (upon his surrendering his Lease) from the Covenants therein, . . . .170 58. — General Release of Dower, ...... 171 59. — Release of Dower to the Heir, 171 60. — Release of Dower in Consideration of an Annuity given by Will, 172 61.— Release of Dower when the Husband of the Widow joins in the Deed, 172 62. — Release of a Trust, 173 63.— Release of Right to Lands 174 64. — Release between two Traders in Settling Accounts, . .174 CHAPTER XVI. NOTES OF HAND AND BILLS OF EXCHANGE, DRAFTS, AND CHECKS. Section L — The Purpose of, and the Parties to, such Papers, . .175 Forms. Form 65. — Common Form of a Bill of Exchange, . . . .176 66. — Common Form of a Promissory Note, . . .177 Section IL— What is Essential to a Negotiable Note or Bill, . . iSa Forms. Form 67.— Form of a Note given for a Chattel sold, with a Condition preserving the Ownership of the Seller, . Section III.— Consideration of Negotiable Paper, IV. — Rights and Duties of the Maker, .... \'.— Rights and Duties of the Holder of Negotiable Paper, ^'I-— Rights and Duties of the Indorser, .... VII. — Rights and Duties of the Acceptor, VIII.— Acceptance or Payment for Honor, . 184 190 193 193 205 209 210 For7ns. Form 68.— Judgment Note, with Waiver, . . , . _ 69.— Judgment Note, with Waiver and Power of Attorney, 70.— Judgment Note, with Fuller Waiver and Power of Attorney, 213 Abstract of Days of Grace and Holidays in all the States, . . . -ic 21: 21: CONTENTS. n CHAPTER XVII. AGENCY. PAGB. Section I. — Agency in Genera-1, 219 11. — How Autliority may be given to an Agent, . . . 221 III. — Extent and Duration of Authority, 224 IV. — Execution of Authority, 226 V. — Liability of an Agent, 227 VI. — Rights of Action growing out of Agency, .... 227 VII. — How a Principal is affected by the Acts of his Agent, . 228 v''III. — Mutual Rights and Duties of Principal and Agent, . . 229 IX. — Factors and Brokers, 232 Form 71. — Power of Attorney, 235 72. — Power of Substitution, 236 73. — Power of Attorney in a Shorter Form, .... 236 74. — Full Power of Attorney to Demand and Recover Debts, . 237 75. — Power of Attorney to Sell and Deliver Chattels, . . 238 76. — Power of Attorney given by Seller to Buyer, . . . 238 yy. — Power of Attorney to sell Shares of Stock, with Appoint- ment by Attorney of Substitute, 238 78. — Power of Attorney to subscribe for Stock, .... 239 79. — Proxy or Power of Attorney to Vote, 239 80. — Proxy Revoking all Previous Proxies, .... 239 81. — Proxy with Affidavit of Ownership, in use in New York, . 239 82. — Power to receive Dividend, 240 CHAPTER XVIII, PARTNERSHIP. Serion I. — What a Partnership is, 240 II. — How a Partnership may be Formed, 241 III. — How a Partnership may be Dissolved 243 IV. — Property of the Partnership, 245 V. — Authority of each Partner, and the Joint Liability of the Partnership, 246 VI. — Remedies of Partners against each other, . . .251 VII. — Right of the Firm against Third Parties, . . .252 10 CONTENTS. PAGB. Section VIII.— Rights of Creditors in Respect to Funds, . • ' ^^} IX.— Effects of Dissolution, . . . • • ' "^fi X. — Limited Partnership, -25 Forms. Form 83.— Articles of Copartnership between two Tradesmen, . . 257 84— Short Form of Articles of Copartnership, . . • .259 85.— Certificate of a Limited P.^rintrship, with Acknowledgment and Oath, 261 CHAPTER XIX. ARBITRATION. Section I. — The Submission and Award 262 II.— Revocation of a Submission to Arbitrators, . . . 266 Forms. Form 86. — Simple Agreement to Refer, 268 87. — Arbitration Bond. One or more Arbitrators, . . . 268 88. — Award of Arbitrators, 269 CHAPTER XX. THE CARRIAGE OF GOODS AND PASSENGERS. Section I. — A Private Carrier, 269 II. — The Common Carrier, 270 III. — Obligation of Common Carrier to receive a.nd carry Goods and Passengers, 273 IV. — The Lien of the Common Carrier, 278 V. — Liability of the Common Carrier, ..... 278 VI. — The Carrier of Passengers, 2S0 Vn. — Notice by the Carrier Respecting his Liability, . . . 281 VIII. — The Carrier's Liability for Goods carried by Passengers, . 283 Forms. Form 89. — Steam Packet Company's Receipt, 286 90. — Express Company's Receipt, . . . . , ^ CONTENTS 1 1 CHAPTER XXI. PAGE. HOTEL-KEEPERS, INN-KEEPERS, AND BOARDING-HOUSE- KEEPERS. The Rights, Duties, and Liabilities of, and the distinction between, Hotel-keepers and Boarding-liouse-lceepers, 288 CHAPTER XXn. LIMITATIONS. Section I. — Statute of Limitations, . . . , , . . 290 II. — Construction of the Statute, 291 III. — The New Promise, 292 IV. — Part Payment, 293 V. — Some Statutory Exceptions, 294 VI. — When the Period of Limitation begins, .... 295 VII. — The Statute does not affect Collateral Security, . . 296 Abstract of the Statutes of Limitation of dll the States, • . . 296 CHAPTER XXHI. INTEREST AND USURY. Section I. — What Interest is, and When it is Due, .... 307 II. — Charge for Risk or for Service, 312 III.— Sale of Notes, 313 IV. — Compound Interest, 314 Abstract of the Usury Laws of the States, 315 CHAPTER XXIV. THE LAW OF PLACE. Section I. — What is meanf by the Law of Place, 318 II. — General Principles of the Law of Place, .... 318 III.— Place of the Contract 320 IV.— Domicil, . ., 3^1 12 CONTENTS. CHAPTER XXV. THE LAW OF SHIPPING. TAGB. Section I.— Ownership and Transfer of Ships, 324 II.— Transfer of Property in a Ship, 327 • 329 ■ 331 • 331 • 333 • 340 • 344 . 348 III. — Part-Owners, IV. — Liability of Mortgagees, V. — Contract of Bottomry, VI.— Employment of a Ship by the Owner, VII.— Charter Parties, VIII. — General Average, IX. — Salvage, X. — Navigation of the Shi]) 352 XI. — Seamen, 356 XII.— Pilots, 359 XIII.— Material-Men, 360 Forms. Form 91 92, 93 94. 95 96. 97. 98 99, 100, -Bill of Sale of ^'essel, -Mortgage of a Vessel, -Charter Party, .... -Bill of Lading, -Shipping Articles in Common Use, -Bottomry Bond, .... -Oath or Affirmation of Consignee or Agent, -Custom-House Power of Attorney. No. 201 -Maritime Protest, ... -Steamboat Warrant, as used in the Western States, 361 363 365 366 367 370 371 372 373 375 CHAPTER XXVI. MARINE INSURANCE. Section I. — How the Contract of Insurance is made, II. — Interest of the Insured, III. — Interest which may be insured, . IV. — Prior In.surance, .... V. — Double Insurance and Re-insurance, VI. — Memorandum, .... VII. — Express Warranties, . VIII. — Implied Warranties, . 375 378 380 383 384 385 385 387 CONTENTS. 13 Section IX. — Representation and Concealment, . X. — What things should be communicated, XI. — Premium, XII. — Description of the Property Insured, XIII. — Perils covered by the Policy, XIV.— Perils of the Sea, . XV. — CoUision, XVI.— Fire, .... XVII.— Piracy, Robbery, or Theft, XVIII.— Barratry, XIX, — Capture, Arrest, and Detention XX. — General Clause, XXL— Prohibited Trade, . XXII. — Deviation, XXIII. — Termini of the Voyage, and of the Risk, XXIV. — Total Loss and Abandonment, 389 390 391 392 393 394 39S 39S 39S 396 396 397 397 398 400 402 Form. Form loi. — Abandonment, 40S Section XXV. — General Average 4°8 XXVL— Partial Loss, 409 CHAPTER XXVII. FIRE INSURANCE. Section I. — Usual Subject and Form of the Insurance, . . .411 11. — Construction of Policies against Fire, .... 414 III. — Interest of the Insured, 420 IV. — Double Insurance, 422 V. — Warranty and Representation, 423 VI. — Risl< incurred by the Insured, 427 VII.— Valuation, 428 VIII.— Alienation, 429 IX.— Notice and Proof, 43° X. — Adjustment and Loss, 43 1 Forms. Form 102. — Immediate Notice of Loss, ' 432 103.— Notice, with Certificate of Magistrate, . . . -433 104.— Assignment of a Policy to be indorsed thereon, . . 434 105.— Transfer and Assignment of Policy, . . . .435 J. CONTENTS. CHAPTER XXVIII. LIFE INSURANCE. Section I.— Purpose and Method of Life Insurance, . II. — Premium, . III. — Restrictions and Exceptions in Life Policies, IV. — Interest of tlie Insured, .... V. — Assignment of a Life Policy, VI. — Warranty, Representation, and Concealment, VII. — Insurance against Accident, Disease, and Dislionesty of Servants, 445 PAGB. 436 437 438 440 440 441 CHAPTER XXIX. DEEDS CONVEYING LAND. Section I. — What is Essential to such Deeds, 4^(1 II. — Usual Clauses in Deeds, . . . . . . .451 Forms. Form 106. — Deed Poll of Warranty, in Common use in New England, 458 107. — Deed of Giftby Indenture, without any Warranty whatever, 459 108. — Deed of Bargain and Sale, without any Warranty, , . 460 109. — Quit-Claim "Deed, without any Warranty, .... 461 no. — Deed Poll of Release and Conveyance; short Form, . 462 III. — Deed, with Special Warranty against the Greintor only, . 463 H2. — Quit-Claim Deed (long Form), Homestead Waiver, . . 464 113. — Deed, with Covenant against Grantor, without Release of Homestead or Dower, ....... 465 114. — Separate Relinquishment of Homestead and Dower in Land sold under Execution, ...... 467 115. — Full Warranty Deed, by Indenture, without Release of Homestead or Dower, ....... 468 116. — Warranty Deed (short Form), with release of Homestead and Dower, ........ 470 117. — Warranty Deed, with Covenant against Nuisances, without Release of Homestead or Dower, .... 471 118-142. — Forms of Deeds in use in various States, . . 473 — 506 143. — Bond for a Deed, ........ 507 144. — Contract for Sale of Land, with Penal Obligation, . . 507 CONTENTS. IS PAGE, Form 145. — Power of Attorney to sell Lands, 508 146. — Trust Deed for the Benefit of a Wife, or some oilier Person, .......... 510 147. — Trust Deed to secure Payment of a Note without Re- lease of Homestead or Dower, 511 148. — Deed of Trust to secure a Debt (fuller Form), and with Release of Dower, 513 149. — Trust Deed to secure a Note (shorter Form), but with Warranty, and Release of Homestead and Dower, . .516 150. — Deed from Trustees, 518 151. — Deed of Master in Chancery, ... . . 519 152. — Sheriff's Deed on Execution, in use in the Western States, 520 153. — Sheriff's Deed, in use in New England, .... 521 154. — Sheriff's Tax Deed, in use in the Western States, . . 523 155. — Deed of Executor, in use in the Eastern States, . . 524 156. — Deed of Executor, in use in the Middle States, . . 525 158. — Deed of Administrator of Intestate, 527 159. — Deed Poll of Guardian of a Minor, .... 530 160. — Deed of Referee on Foreclosure, in use in the Middle States, 531 161. — Deed of Collector of Taxes, 533 162. — Deed of Assignee, in use in the Western States, . . 534 163. — Acknowledgment of Grantor and Wife identified before Commissioner for another State, ..... 536 164-168. — Deeds in use in Canada, S37-S43 Abstract of the Laws of all the States Relating to Deeds and their Requirements, 545 CHAPTER XXX. MORTGAGES OF LAND. Purpose of a Mortgage, 548 Rights of Mortgagor and Mortgagee, 549 Forms. Form 169.— Promissory Note, to be secured by Mortgage, . . .552 170.— Bond, to be secured by a Mortgage, . . . .552 J71. Mortgage, without Power of Sale and without Warranty, but with Release of Homestead and Dower, . . . 553 ig CONTENTS. PAGE. Form 172.— Mortgage, with Power of Sale, to secure a Bond, without Release of Dower, 554 172. — Mortgage to secure a Debt, with Power of Sale— short Form, 556 174. — Mortgage to secure a Debt (fuller Form), with Power of Sale, 557 175. — Deed Poll of Mortgage, with Power to Sell, and Insurance Clause, and Release of Homestead and Dower, . . 558 176.— Mortgage by Indenture, with Power of Sale, and Interest and Insurance Clause, to secure a Bond, . . . 560 177. — Mortgage to Executors, with Power of Sale, . . . 563 178. — Mortgage of a Lease, 565 179. — Mortgagee's Deed, under a Power of Sale, . . . 567 180-199. — Mortgage Deeds in use in several States, . . 567-595 200. — Assignment of Mortgage — short Form, .... 596 2QI. — Assignment of Mortgage, with Power of Attorney, . . 596 202. — Assignment of Mortgage by a Corporation, . . . 597 203. — Discharge of Mortgage — short Form, .... 598 204. — Release and Quitclaim of Mortgage, as used in the West- ern States, 599 205.— Discharge of Mortgage, as used in the Middle States, . 599 206. — Discharge and Satisfaction of Mortgage by a Corpo- ration, 600 207. — Release of a part of the Mortgaged Premises, . . 600 208. — Deed Extending a Mortgage, 602 209,210,211. — Mortgage Deeds in use in Canada, . . 603-606 CHAPTER XXXI. LEASES. Definition of the Term, 610 Rights and Obligations of the Parties, 611 Fixtures, 614 Digest of Leases, 6ij Forms. Form 212. — Short Form of a Lease, 213.— Fuller Form, with a Provision for Abatement of Rent, 214. — Short Form of Lease, in use in the Western States, . 215. — Lease of City Property, in use in Chicago, 216.— Lease, with Provisions for Taxes and Assessments, 616 616 618 619 621 CONTENTS. S 17 PAGE. Form 217.— Lease, with Covenants about Water Rates, and Injury by Fire, in use in New York, C23 218.— Lease by Grant, in use in the Western States, . . .625 219. — Lease by Certificate, with Surety, 626 220.— Lease of City Property, in use in St. Louis, . . .627 221.— What is called a Country Lease, in use in t'.ie V/estcrn States, C28 222. — A Ground Lease 630 223. — Assignment of Lease, and Ground Rent, .... 633 224.— Lease containing Chattel Mortgage Covenants to secure Rent, 635 225. — A Building Lease, C38 226. — A Mining Lease, 639 227. — Lease of Land supposed to contain Oil, Salt, or other Minerals, .......... 640 228.— Assignment of a Lease, 642 229. — Landlord's Notice to quit for Non-Payment of Rent- short Form, ......... 643 230. — Landlord's Notice to quit for Non-Payment of Rent — another Form, ......... C43 231. — Landlord's Notice to pay Rent due, or quit, . . . 643 232. — Landlord's Notice to leave at End of Term, . . . 643 233. — Landlord's Notice to determine a Tenancy at Will, . . 644 234. — Receipt for Rent, in use in New York, .... 644 235 -239. — Leases in use in Canada, .... 644-653 CHAPTER XXXII. MORTGAGES OF GOODS AND CHATTELS, OR PERSONAL PROPERTY. The Pledge of Personal Property, 653 Forms. Form 240. — Mortgage of Personal Property, 655 241.^-Mortgage of Personal Property, with Warranty, . . 655 242. — Mortgage of Personal Property, with Power of Sale, . 657 243. — Mortgage of Personal Property, with Power of Sale — another Form, 658 Abstract of the Laws of the States respecting Chattel Mortgages, . d^f) 2 jg CONTENTS. CHAPTER XXXIII. LAW OF PATENTS. PAGB. What may be Patented, .... 663 Who is Entitled to a Patent 663 What will Prevent the Granting of a Patent, 664 Mode of Proceeding to obtain a Patent, 665 Forms. Form 244. — Form of Petition, 665 245. — Specification to accompany a Petition, .... 665 246.— Form of Oath, 667 Drawings, 667 iVIodel, 668 Completion of the Application, 669 Examination, 669 Protests, 670 Withdrawals, 670 Appeals, 670 Form 247. — Appeal to the Examiner-in-chief, .... 670 Interferences, .....•..•••• 672 Re-Issues, . . • 674 Form 248. — Surrender of a Patent for Re-issue 675 249. — Oath to be appended to Application for Re-issue, . 676 Disclaimers, ............ 676 Form 250. — Disclaimer by an Assignee, 676 Extensions, '. . . . 677 Designs, 679 Form 251. — Application for Patents of Designs, .... 6S0 252. — Specifications for Designs, 680 253. — Form of Oath, 681 Foreign Patents, 681 Caveats, 681 Form 254. — Form of a Caveat, ... ... 6S3 Repayment of Money, 683 Assignments and Grants, ......... 683 Form 255. — Assignment of the Entire Interest in Letters-Patent before obtaining the same, and to be recorded pre- paratory thereto, 684 CONTENTS. iQ PAGB. Form 256.— Grant of a Partial Right in a Patent 685 Tlie OfBce Fees, and how Payable, 685 Taking and Transmitting Testimony 687 Form 257. — Magistrate's Certificate, 688 258.— Form in Taking of Depositions, 6S9 Filing and Preservation of Papers, 690 Amendments, 601 Form 259. — Amendment of Specification, 691 Canada, Patent Law of, 692 Trade-Marks, ' . , 602 Canada, Law of Trade-Marks, 695 CHAPTER XXXIV. LAW OF COPYRIGHT. Revised Statutes of the United States relating to Copyright, Sectiorvs 4948 to 4971, 695 Copyright Law of the Dominion of Canada, 700 Forms. Form 260. — Agreement between Author and Publisher — short Form, . 700 261. — Agreement between Author and Publisher — fuller Form, 701 262. — Assignment of a Copyright, 703 CHAPTER XXXV. MEANS PROVIDED FOR THE RECOVERY AND COLLECTION OF DEBTS. I. — Arrest and Imprisonment, ........ 703 2. — Trustee Process, . 703 3. — The Homestead, 704 Abstract of Laws relating to the Collection of Debts, . . > . 705 CHAPTER XXXVI. LIENS OF MECHANICS AND MATERIAL-MEN FOR THEIR WAGES AND MATERIALS. What is a Lien, 743 20 CONTENTS. For7ns. T\CK, Form 263.— Notice under Mechanic's Lien Law, 744 264.— Bill of Particulars of Mechanic's Claim, . . . -745 265.— Release and Discharge of a Mechanic's Lien, . . -745 266.— Release and Discharge of a Mechanic's Lien, another Form, 746 Abstract of the Laws of all the States relating to Mechanics' Liens, . 746 CHAPTER XXXVII. THE DISPOSAL OF PROPERTY BY WILL. Section I.— Wills, 755 II.— Codicils, 758 III.— Revocation of Wills, 759 Form 267.— A Will, 760 268. — Copy of a fuller form cf a Will, 761 269. — Another form of a Will, 763 CHAPTER XXXVIII. EXECUTORS AND ADMINISTRATORS. Powers and Duties of Executors and Administrators, .... 770 Terms. Form 270. — Petition to be appointed Executor, without further Notice, 774 271. — Executor's Bond, ........ 774 272. — Bond of Executor, who is also Residuary Legatee, . . 775 273. — Administrator's Bond, 776 274. — Administrator's Petition for leave to sell a Part of the Real Estate, 776 275. — Administrator's Petition for leave to sell the Whole of the Real Estate, 777 276. — Bond of Administrator licensed to sell Real Estate, . 778 277. — Account of Executor, 779 CHAPTER XXXIX. GUARDIANS. PAGE. The Rights and Duties, Powers and Liabilities, of Guardians, • . 7S0 CONTENTS. 21 CHAPTER XL. CONSTRUCTION AND INTERPRETATION OF CONTRACTS. Section I. — General Purpose and Principles of Construction, II. — Some of the General Rules of Construction, III. — On Presumptions of Law, IV. — Of the Effect of Custom and Usage, . V. — On the Admissibility of Extrinsic Evidence, 782 783 787 788 791 CHAPTER XLI. LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. Section I. — His Title to his Farm, 795 Subsection i. Possession, 795; 2. Inheritance, 796; 3. Purchase, 796 ; 4. Sales of Land at Auction, 797. Section II. What one Takes by the Deed of his Farm, . . . 798 Subsection i. Boundaries and Descriptions, 798; 2. Contents, 799; 3. Fixtures, 800; 4. Manure, 801; 5. Rocks, Stones, and Soil, 80 r; 6. Adjoining Roads, 802; 7. Trees, 802. Section III. Trespassing on the Farm, 803 Subsection I. Who is a Trespasser, 803; 2. Of the Right of a Far- mer to Order a Trespasser off from his Land, 804. Section IV. Farm Ways, 804 v.— Water Rights, 805 VI.— Fire, 805 VII. — Game Animal, S07 VIII. — Domestic Animals, 808 IX. — Sale with Warranty of Animals, of Seeds, and of Fer- tilizers, 809 Subsection I. Of Animals, 809; 2. Of Seeds, 810; 3. Of Fertili- zers, 811. Section X.— Hiring of Help 811 Subsection i. Rights and Duties of Help, 812; 2. Liability of the Farmer for the Wrong-doing of his Help, 813. Section XII.— Hiring of a Farm, 814 Subsection i. Hiring by Lease, 815; 2. Renewal of Lease, 815; 3. Remedy for Non-payment of Rent, 815; 4. Tenant's Right to Vacate the Premises and give up the Farm, 816; 5. Apportionment of Rent, 816; 6. Cultivation of the Farm, 817; Form.— A Form of a Lease of aFarm, 818; 7- Hiring on Shares, 819. NOTE, In preparing this edition of my Laws of Business, I have spared no effort to make the book a safe guide in every business question which is h'kely to arise in any State of the Union. I have made large additions to the former edition, especially of Abstracts of the Laws of all the States, in relation to such matters as Deeds of all kinds. Chattel Mortgages, Leases, Wills, Mechanics' Liens, Days of Grace and Holidays, Statutes of Limita- tions, Actions, Recovery and Collection of Debts, Attachment, Arrest, Garnishment, or Trustee Process, Judgment, Exemptions, Stay Laws, Homestead Rights, etc., etc., and a new chapter on the legal Rights and Obligations of Farmers ; Help, and their rights and duties ; Trespassers, Adjoining Roads, Rivers and Ponds, Fences, Farmways, Repairs, Fixtures, and many other topics. I have greatly multiplied the Forms. Some of these Forms will be found brief and simple ; others of them, especially those in relation to real estate, are full and minute. No one but a lawyer knows how necessary it is to use the technical, customary, and established language of Forms, every phrase of which has passed through repeated liti- gation, and has thus acquired a certain meaning. Much in such Forms will seem, to those ignorant of law, to be wordy and full of repetition ; but, if the Forms are made apparently more simple by omissions and abbrevia- tions, they may be good, and they may notj and whether they are or not cannot be known except by litigation. And he must be a bold lawyer who would undertake to prefer Forms of his own make to those which the Courts and common use have sanctioned. Wherever I could, I have given Forms which were thus sanctioned, because the very object of this book is to enable persons who use it to conduct their business affairs with ease, safety, and certainty. I think such a book possible, and I venture to hope that I have made such a book. I know only that whatever labor and care could do to make the book useful and safe, has been done. In nothing that I have published have I labored more strenuously to make my work satisfy the just require- ments of those to whom it is offered. In this edition I have brought the law down to the present time, have revised the whole work, and, as I have already said, have made large additions which will, I hope, increase Us use- fulness and value. THEOPHILUS PARSONS. THE LAWS OF BUSINESS. CHAPTER I. THE PUEPOSE AND USE OF THIS BOOK. The title of this work indicates, to some extent, its purpose and character ; but, as they are in certain respects peculiar, it is thought that some remarks respecting them may make the volume more useful. Many years ago, after more than twenty- five years of practice at the bar, I accepted the office of Dane Professor in the Law School of Harvard University. I employed whatever leisure the duties of that office left me, in preparing a series of text-books on Commercial Law. I have published many volumes ; and the manner in which they have been re- ceived by my professional brethren, calls for my most grateful acknowledgments. One of those works was entitled "The Ele- ments of Mercantile Law," and was intended as a general epitome of Commercial Law. I began it mainly for the use of lawyers, but at the same time hoping that it might be so Written as to be useful to others, who were not lawyers. Before I had made much progress in it, the hope that one book could answer these two purposes faded away ; and I finally made that work exclusively for lawyers. But the circum- stance that many persons who were not lawyers, and did not intend to be, have bought my works, — the remarks that have reached me in relation to them, and particularly in reference to that above mentioned, and many other kindred facts, — have given additional strength to a belief that led me to prepare this vol- ume, for wide and general use. That iDelief is, that there is a strong and growing disposition, (23) 24 PURPOSE AND USE OF THIS BOOK. among the men of business of this country, to understand the laws of business. This disposition, and the actual diffusion of this knowledge, have both greatly increased of late years, and I believe could not have been arrested ; for this progress is one element of advancing and improving civilizatioi) ; and I think it cannot now be prevented. The institutions and characteristics of this country have their bearing upon this question. We have no sovereign but the law; or rather the people is the sovereign, and the law is their only utterance. It is a sense of this that has here transferred, in some degree at least, the loyalty which in the kingdoms of the Old World attaches to a person, to the law itself, using this word in its most comprehensive sense. This is a good thing; not because the law is always wise and good, but because it will more probably become wise and good, if the whole com- munity recognize it as entitled to obedience, and therefore enti- tled to their constant, earnest, and vigorous endeavors to cure its defects, and bring it into harmony with those principles of truth and justice of which it should be the expression. This great duty rests upon us with the stronger obligation because of our greater intelligence and activity of mind, or more general education and wider extent of common knowledge ; all which ar6 none the less facts, although they are sometimes used as mere food for vanity, or as topics for adulation. And'all these things together seem to lead to the conclusion, that here and now proper efforts should be made to supply all of the community who ask for it, — with accurate and practical information con- cerning those laws which are of the most immediate concern to them. So far as concerns the whole people, their wish, if expressed in the simplest terms, would undoubtedly be, to know the laws which must regulate their conduct and determine their rights. This wish admits of but one question; it is, How far is this thing practicable 1 for so far as it is, its propriety and expediency can hardly be denied or doubted. Indeed, they who would most strenuously oppose any effort to teach the people the law, would do so only on the ground that it is impossible to give to the public any knowledge of this kind which would be wide enough PURPOSE AND USE OF TH/S BOOK. 25 and accurate enough for use. They would think that the very- endeavor to learn the law, by persons the main business of whose lives must be of a very different kind, would lead only to a superficial and erroneous view of the subject; and this, under the name of knowledge, is only the most dangerous ignorance. We should, however, remember, that the people generally, here and elsewhere, must necessarily know a certain amount of law, for without this they cannot live safely in society. For example, men in business must know something of the most general laws of business ; as how to conduct their sales, how to make notes, how-to collect them, and the like; and all men must know so much of ordinary law as protfects and defines their common and universal rights. Moreover, it will probably be admitted that important mistakes, leading to much loss and difficulty, are every day made, because many do not know those general principles or rules of law which some do know, and which every man in business might know. The question, there- fore, can only be, how much of law it is possible and desirable for men in business to learn ; and what is their best way of learn- ing it. Here let me remark, that few persons, who have not had occasion to study and to teach Commercial Law as a whole, are aware of that unity and harmony of its principles, which make it indeed a system of laws ; or of the prevailing simplicity and rea- sonableness of its rules. An eminent English lawyer has said, that it was astonishing within how small a space all the princi- ples of commercial law may be compacted. It is equally true, that the laws of business are generally free from mere techni- cality and obscurity ; and the reason is, that they are for the most part, and substantially, nothing more than the actual prac- tice of the business community, expressed in rules and maxims, and invested with the authority of law. The knowledge which a trader acquires of the laws of trade need not, at all events, be superficial ; for a knowledge of princi- ples, and an intelligent appreciation of them, however limited it may be, should not be regarded as superficial. And these limits need not be nztrrow. The extent of this knowledge, and its accuracy, thoroughness, and utility, must obviously depend 26 PURPOSE AND USE OF THIS BOOK. upon the books from which it is acquired, and upon the manner of using those books. Considerations of this kind led me to the belief, that it was possible to make a book, which should place within the appre- hension of every intelligent trader, and of every young man who proposes to engage in any department of business (and this now means almost every man in the community), at the cost of no more time than every one can conveniently give to it, a useful knowledge of all the elements, or general rules and principles, of the Laws of Business. In other words, I thought it an undeserved reproach of our Laws of Business, to say that they were not intelligible by all, if stated with simplicity and accuracy ; and an equally undeserved reproach of our Men of Business, to say that they could not comprehend laws, which were made for them, and were intelli- gible in themselves, and plainly stated. It seemed to me, there- fore, that the time had come, in this country, for a book which no one has ever attempted to make anywhere heretofore. This book should contain all the principles of all the branches of the laws which regulate the common transactions of life, stated with all the accuracy that care and labor could insure in any book, and so stated that any man of good capacity, with reasonable effort, might understand all of them ; and might, with the help of the Index, find in the volume a true and intelligible answer to the questions which every day arise ; and might, if he were willing to make a regular study of the whole book in course, become acquainted with the rules, and the reasons of the rules, by which all business may be safely conducted. And this book I have endeavored to make. I have compiled it, mainly from the law- books I have already made for the profession. If they are accu- rate and trustworthy, this is so ; and I may be permitted to say, that whatever earnest endeavors could do to make those books trustworthy was done ; and that accumulated testimony, which I have no right to disregard, encourages me to hope that I have not labored in this respect in vain. I have made changes which seemed to be required by the intended adaptation of this book to merchants and not to law- yers. These are, first, the omission of citations and references BUSINESS LA W IN GENERAL. 27 to reports and authorities ; next, the addition of some element- ary rules and principles and definitions, which would not be nec- essary in a book for lawyers only ; and lastly, the use of com- mon or non-professional language, the general omission of merely technical words, and the full explanation of such words when they are used. If there are those who are preparing for a life of business, or are now engaged in it, who will study this voliime, in course, — . dwelling on what seems most important, and examining with . care what seems obscure, — I venture to hope that they will find the work so arranged, and the meaning so expressed, that what comes before explains what follows, and every part of it will be intelligible. At the same time, I have labored to make every- thing plain by itself, as far as that was possible, that it might not disappoint those who, without reading it in course, look into it for an answer to questions as they arise. And for such per- sons I have endeavored to have the Index of Subjects (at the end of the book) exceedingly full and minute. I have added a great variety of Forms. Of course no col- lection of Forms could be made large enough to meet the exact facts of every case that can arise. But it is possible to give accurate Forms of all sorts ; and any person can select the Form nearest to his particular need, and easily make the altera- tions which the facts of his case require. « CHAPTER II. BtrSINESS LAW IN GENERAL. All law is divided into what it called, in law books, common law and statute law. We have legislatures, and our fathers had them; and a very large proportion of the laws now binding upon us were made by those legislatures in a formal and regular way. All these are Statutes ; and taken altogether, they com- pose the Statute Law. Besides this, however, there is another very large portion of our law which was not enacted by our 28 BUSINESS LA W IN GENERAL. legislatures ; and it is called the Common Law. In fewer words, all law was regularly enacted, or it was not. If it was, it is statute law; if it was not so enacted, it is common law. The common law of the several States of this country con- sists, in the first place, of all the law of England — ^whether statute or common there — which was in force in that State at the time of our independence, and recognized by our courts, and which has not since been repealed or disused. And next, of all those universal usages, and all those inferences from, or applications of, established law, which courts in this country have recognized as having among us the force of law. For this common law there is no authority excepting the decisions of the courts ; and we have no certain means of knowing what is or is not a part of the common law, excepting by looking for it in those decisions. Hence the value and importance of the reported decisions, which are published by official reporters in most of our States. A very important part of the common law, especially to all men in business, is what is called, by an ancient phrase, the Law-Merchant. By this is meant the law of merchants; or, more accurately, the law of mercantile transactions; and by this again is meant all that branch of the law, and all those principles and rules, which govern mercantile transactions of any kind. This great department of the law derives its force in part from statutor}* enactments, but in far greater part from the well-established usages of merchants, which have been adopted, sanctioned, and confirmed by the courts. For example, a large proportion of the law of factors and brokers, most of that of shipping and of insurance, and nearly all the peculiar rules applicable to negotiable paper (or promissory notes and bills of exchange payable to order), belong distinctly to the Law -Merchant. The courts of this country have always acknowledged that a custom of merchants, if it were proved to be so nearly uni- versal and so long established that it must be considered that all merchants know it and make their bargains with reference to it, constitutes a part of the law-merchant. And the law- merchant is itself a part of the common law, and therefore has BUSINESS LA W IN GENERAL. 29 the whole obligatory force of law. This would not be true, if the custom was one which violated statute law, or the obvious principles of public policy or common honesty. But we may suppose that no custom of this kind would ever be so generally adopted and established as to come before the courts with any claim for recognition as law. A great deal of the language of every art or science or pro- fession is technical (indeed, technical means belonging to some art), and is peculiar to it, and may not be understood by those who do not pursue , the business to which it belongs. This is as true of law as of everything else. In this work, however, I have avoided as far as possible mere law-words ; and when I have used them have explained them at the time. There are some, however, which cannot be dropped : they express exactly what is meant, and we cannot express it without them, unless by long and awkward sentences. A good instance of this is in those words which end in er (or or) and in ee. As for example, promisor and promisee, vendor and vendee, indorser and indorsee. These terminations are derived from the Norman-French, which was, for a long time, the language of the courts and of the law in England. And it might seem that we had just as good terminations in English, in er and ed, which mean the same thing. But it is not so. Originally they meant the same thing, but they do not now ; for both er and ee are applied in law to persons, and ed to things ; so that we want all three termina- tions. For example, indorser means the man who indorses ; indors^^ means the man to whom the indorsement is made ; but the note itself we say is mAoxsed. So vender means the man who sells, vend^^ means the man to whom something is sold, and the thing sold is vend^^. And the promis^^r makes the promise, the promis^^ receives it, and the thing to be done is promis^aT. We have retained not only this phraseology, but some other words or phrases, of which similar things might be said. 20 OF INFANTS, OR MINORS. CHAPTER III. INFANTS, OR MINORS. SECTION I. Generally, all persons may bind themselves by contracts. But some are incapacitated. The incapacity may arise from many causes ; as from insanity ; or from being under guardian- ship ; or from alienage in time of war ; or from infancy ; or from marriage. All persons are infants, in law, until the age of twenty-one. But in Vermont, Maryland, Ohio, Maine, Missouri, Texas, and perhaps one or two other States, women are considered of full age at eighteen, for some purposes. The rule of law is, that a person becomes of age at the beginning of the day before his twenty-first birthday. This rule opposes the common notion, and it rests on no very good reason, but on ancient authority and constant repetition. The reason assigned is, that the law takes no notice of parts of a day. The effect of the rule is, that a person born on the 9th of May in the year 1840, becomes of age at the beginning of the 8th of May, 1861, and may sign a note, or do any thing, with the full power of a person of age, on any hour of that day. The contract of an infant (if not for necessaries) is voidable, but not void. That is, he may disavoy it, and so annul it, either before his majority, or within a reasonable time after it. As he may avoid it, so he may ratify and confirm it. He may do this by word only. But mere acknowledgment that the debt exists is not enough. It must be substantially, if not in form, a new promise. In England, and a few of our States, it is pro- vided by statute, that this confirmation can only be by a new promise in writing, signed by the promisor. The rule seems to be useful, and we think it will be more widely adopted. It must be a promise by the party, after full age, to pay the debt ; or such a recognition of the debt as may fairly be under- OF INFANTS, OR MINORS. 3 1 stood by the creditor as expressive of the intention to pay it ; for this would be a promise by implication. There are no par- ticular words or phrases which the law requires or favors as a confirmation. No ratification or confirmation can be used in any action which was brought before the ratification was made. It must also be made voluntarily, and with the purpose of assuming a liability from which he knows that the law has dis- charged him. And if it be a conditional promise, the party who would enforce it must prove the condition to be fulfilled. Thus, if the plaintiff relies on a new promise, and asserts and proves that the defendant said, after full age, " I will pay when I am able," he must also prove that the defendant was able to pay when the action was brought. If an infant's contract is not avoided, it remains in force. And it may be confirmed without words ; and the question sometimes occurs, whether confirmation by mere silence, after a person arrives at full age, prevents him from avoiding his con- tract made during his infancy. As a general rule, mere silence, or the absence of disaffirmance, is not a confirmation ; because it is time to disaffirm the contract when its enforcement is sought. But if an infant buys property, any unequivocal act of owner- ship after majority — as selling it, for example — is a confirmation of the purchase. And, generally, a silent continued possession and use of the thing obtained by the contract is evidence of a confirmation ; therefore, if an infant buys a horse, and gives his note for it, and after he is of age the seller puts the note in suit, the buyer may return the horse and refuse to pay the note; but if he keeps the horse, this is considered evidence of a con- firmation of the note. The evidence of confirmation is much stronger if there be a refusal to re-deliver the thing when it can be re-delivered ; and is generally conclusive, when the conduct of the party must either be construed as a confirmation, or, if not so construed, must be regarded as fraudulent, or wrongful. Thus, where an infant purchased a potash-kettle, and gave his promissory note for the price, it being agreed by the parties that he might try the kettle, and return it if it did not suit him ; and the vendor, after the infant became of age, requested him to 32 OF INFANTS, OR MINORS. return the kettle if he did not intend to keep it ; but he retained and used it a month or two afterwards. The court held that this was a sufficient ratification of the contract, and that an action might be sustained on the note. The great exception to the rule that an infant's contracts are voidable, is when the promise or contract is for necessaries. The rule itself is for the benefit and protection of the infant, and the same reason causes the exception ; for it cannot be for the benefit of the infant that he should be unable to purchase food, raiment, and shelter, on a credit, if he has no funds. The same reason, however, enlarges this exception, until it covers not only strict necessaries, or those without which the infant might perish, or would certainly be uncomfortable, but all those things which are certainly appropriate to his person, station, and means. There is no exact dividing line which could make this defini- tion precise. But it is settled that mercantile contracts, as of partnership, purchase and sale of merchandise, signing notes and bills, are not necessaries, and that all such contracts are voidable by the infant. So, if he gives his note even for neces- saries, he is not bound by it ; but may defend against it on the ground that it was for more than their true value; and the jury will be instructed to give against him only a verdict for so much as the necessaries were worth. If he borrows money, to be expended in the purchase of necessaries, and gives his note, the debt, or the note, has been held, at law, voidable by the infant. But our courts would now hold an infant liable for such a debt ; and it is well settled that an infant is liable for money paid at his request for necessaries for him ; and if he give a note for necessaries with a surety who pays it, the surety may recover against the infant. If an infant avoid a contract, he can take no benefit from it; thus, if he contracts to sell, and refuses to deliver, he cannot demand the price ; or if he contracts to buy, and refuses the price, he cannot demand the thing sold. An infant is as liable for torts (by torts or tortious acts the law means wrongs or offences) as an adult ; and therefore, if he fraudulently represented himself as of age, when he was not, OF INFANTS, OR MINORS. 33 and so made a contract which he afterwards sought to avoid, this fraud will not prevent his avoiding the contract, but for the fraud itself he is answerable just as an adult would be. So if he disaffirms a sale, for which he has received the money, he must return the money ; because keeping it would be sC wrong, or a confirmation of the sale. So if after his majority he destroys or puts out of his hands a thing bought while an infant, he cannot now demand his money back, as he might have done on tendering the thing bought ; for by his disposal of it he has acted as owner, and confirmed the sale. In general, if an infant avoids a contract on which he has advanced money, and it appears that he has received from the other party an adequate consideration for the money so advanced, which he cannot, or will not restore, he cannot recover back the money which he advanced. But if an infant has engaged to labor for a certain period, and, after some part of the work is performed, rescinds the contract, he can recover for the work he has done, as much as that work was worth. The contract of an infant is voidable only by him, or by those having a right to act for him, and not by the other party. The election to avoid or confirm belongs to the infant alone ; and his having this right does not affect the obligation of the other party. Therefore, one who gives a note to an infant, or makes any other mercantile contract with him, must abide by it, unless the infant annuls it, which he can do if he chooses to. But if the note were given or the contract made by a fraud on the part of the infant, the injured party has the same right of defending against it on this ground as if the fraudulent party were not an infant. And it is a universal rule of the law, that no contract which is tainted with fraud is valid against an inno- cent party ; therefore, a wilfully false representation of the infant ' that he has reached his majority would be a fraud, and would enable the party dealing with him to set the contract aside. A father is bound to supply an infant child with necessaries ; and, if he does not, is liable for their value to any person who supplies them. And for these, as we have seen, the child him- self is also liable. Although in most of our States the law does not require that ,. APPRENTICES. the confirmation or new promise o£ an adult, of a promise which he may avoid because it was made by him when an infant, must be in writing, it would always and everywhere be better and safer to have this new promise in writing. It should be in sub- stantially this form : (1.) I, Henry Thompson, having promised Nathan Gr(:eTi,io {here describe the promise, whetlur by a note, or verbally, for goods bought, or the like, briefly, but so that there may be no mistake about it) and at the time of making that promise I was a minor, within the age of twenty-one years, now, in consider- ation of said promise, I do hereby confirm and acknowledge the same, and promise a full performance and execution thereof. Henry Thompson. It would often be easier, if both parties assented, simpljf to give a new note for the amount due. But it might, in mr ny cases, be better that the new promise should tell the story of the old promise for which it is given. CHAPTER IV. APPEENTICES. The contract of apprenticeship is generally in writing, and is also most frequently by deed, (or writing under seal,) and is to be construed and enforced as to all the parties by the common principles of the law of contracts. Usually, the apprentice, who is himself a minor, and his father or guardian with him, covenant that he shall serve his master faithfully during the term. And the master covenants that he will teach the appren- tice his trade ; but the instrument is not made invalid by the omission to specify any trade or profession as that to be taught. He also covenants to supply him with all necessaries, and at the end of the term, give him money or clothes. Slight informali- ties would not make the instrument void. Even if they are of sufficient magnitude to have this effect, the instrument will prescribe and measure the claim of each of the parties against the other, if they have lived under this instrument as master APPRENTICES. 35 and servant. But the apprentice's consent will not be inferred from his mere signature, but must be expressed. In case of sickness the master is bound to provide proper medicines and attendance. The master cannot transfer his trust, or his rights over the apprentice. He has no right to employ the apprentice in menial services not connected with the trade or business which he has agreed to teach him. And when he neglects to take due charge of the apprentice, the parent's or guardian's authority will revive. The sickness of the apprentice, or his inability to learn or to serve, without his fault, does not discharge the master from his covenants, because he takes this liability on himself. Nor will such ijiisconduct as would authorize a master to discharge a common servant, release the master of an apprentice from his liability on his contract. But if the apprentice deserts from his service, and contracts a new relation which disables him from returning lawfully to his master, the latter is not bound to receive him again if he offers to return. Not only a party who seduces an apprentice from his service is liable, but where one employs an apprentice without the knowledge and consent of his master, the employer is liable to the master for the services of the apprentice, although he did not know the fact of the apprenticeship. It may be added that if an action be brought for harboring an apprentice against the will or without the consent of his master, the plaintiff is bound to prove that the defendant had a knowledge of the apprentice- ship. But a defendant who did not know the apprenticeship when he hired or received the apprentice, and who being informed thereof continued to retain and harbor him, thereby makes himself liable. (2.) A General Indenture of Apprenticeship, as sometimes used in New England. This Indenture, Made the day of by and between A. B. of and C, D. his son, of the age of years, of the one part, and E. F. of of the other part, witnesseth, that the said C. D., by and with the consent of the said A, B. (testified by his signing and sealing these presents) hath bound out himself as an apprentice, to of to be taught in the said trade, science or occupation 36 APPRENTICES. of a which the said R. J. now uses, and to live with, continue, and serve him as an apprentice from the day of the date hereof (or from the day of next coming) unto the full end and term of seven years from thence next ensuing and fully to be complete and ended. During all which said term of seven years, the said A. B. doth covenant and promise to and with the said R. J that he, the said C. D., shall and wi;i well and faithfully serve and demean himself, and be just and true to him the said R. J. as his master, and keep his secrets, and everywhere willingly obey all his lawful commands ; that he shall do no hurt or damage to his said master in his goods, estate, or otherwise, nor willingly suffer any to be done by others, and whether prevented or not, shall forthwith give notice thereof to his said master; that he shall not embezzle or waste the goods of his said master, nor lend them without his consent to any person or persons whatso- ever ; that he shall not traffic, or buy and sell, with his own goods, or the goods of others, during the said term, without his master's leave ; that he shall not play at cards, dice, or any other unlawful games, whereby liis said master may sustain any loss or damage, without his consent ; that he shall not haunt or frequent play-houses, taverns or ale-houses, except it be about his master's business there to be done ; and that he shall not at any time, by day or night, depart or absent himself from the service of his said master without his leave ; but in all things, as a good and faithful apprentice, shall and will demean and behave himself to his said master, and all his, during tlie said term. And for and in consideration of the sum of to him in hand paid, etc., the receipt, etc., the said R. J. doth covenant, promise, and agree to teach and instruct his said apprentice, or otherwise cause him to be well and sufBciently taught and instructed, in the said trade of a after the best way and manner that he can ; and shall and will also find and allow unto his said apprentice meat, drink, washing, lodging, and apparel, both linen and woolen, and all other necessaries in sickness and in health, meet and convenient for such an apprentice, daring the term afore- said ; and at the expiration of the said term, shall and will give to his said apprentice (over and above his then clothing) one new suit of apparel, viz., coat, waistcoat, and breeches, hat, shoes, and stockings, and linen, fit and suitable for such an apprentice. In Witness Whereof, The said parties have interchangeably set their hands and seals hereunto. Dated the day of in the year of our Lord one thousand eight hundred and {Signatures.) {Seals.) { IVilnesses.) (3.) Shorter Indenture of Apprenticeship. This Indenture Witnesseth, That by and with the consent of hath put himself, and by these presents doth voluntarily, and of his own free will and accord, put himself Apprentice to to learn the art, trade, and mystery of and after the manner of an Apprentice to MARRIED WOMEN. 37 serve the said for and during, and to the full end and term of next ensuing. During all which time the said Apprentice doth covenant and promise, that he will serve his master faithfully, I-ceep his secrets, and obey his lawful command ; that he will do him no damage himself, nor see it done by others, without giving him notice thereof — that he will not waste his goods, nor lend them unlawfully — that he will not contract matrimony within the said term — that he will not play at cards, dice, or any other unlawful game, whereby his master may be injured — that he will neither buy nor sell, with his own goods or the goods of others, without license from his master — and that he will not absent himself day nor night from his master's service, without his leave — nor haunt ale-houses, taverns or play- houses, but in all things behave himself as a faithful Apprentice ought to do during the said term. And the said master on his part doth covenant and promise, that he will use the utmost of his endeavors to teach, or cause to be taught or instructed, the said Apprentice in the art, trade, or mystery of and will procure and provide for him sufficient meat, drink, clothing, lodging, and washing, fitting for an Apprentice, during the said term, and will give him quarters schooling during the said term. And for the true performance of all and singular the covenants and agreements aforesaid, the said parties bind themselves each unto the other, firmly by these presents. In Witness Whereof, The said parties have interchangeably set their hands and seals hereunto. Dated the day of in the year of our Lord one thousand eight hundred and Executed and delivered before {Witnesses^ (Signatures^ (Sea/s.) CHAPTER V. MAEEIED WOMEN. By the original common law of this country, a married woman is wholly incapable of entering into mercantile contracts on her own account. By the fact of marriage, her husband becomes possessed of all her real estate during her life, and if a living child be born of the marriage, he has her real estate during his own life, if he survive her. This life-right in her real estate is called, in law, his tenancy by the curtesy. All the personal property which she has in actual possession 38 MARRIED WOMEN. becomes by common law, absolutely his, as entirely as if she had made a transfer of it to him. But by property in possession the law means only her goods and chattels; or things which can be handled ; and which actually are in her hands, or under her direct and immediate control. If she have notes of hand, money due her, or shares in various stocks, these are not con- sidered as things in possession, but as things in action. Things in possession are those things which one has now in his hands, and things in action (called in law choses in action), those which are so called because he who owns them cannot get possession of them without an action, if other persons choose to resist him. All debts, and evidences of debt, as bonds, notes, and all shares in stocks, whether national or State, or of incor- porated companies or other companies, are things in action. But bank-bills are usually regarded as money, and therefore as things in possession. The common law makes a wide difference between things in possession and things in action in many respects. The common law of husband and wife as to things in action is this. The husband may, if he pleases, reduce them to his possession, and so make them absolutely his own. In general, he does this by any act whfch is distinctly an act of ownership; as if he demands and collects the debts due to her, or indorses her notes — which he can do in his own name — and sells them, or has the stock transferred to his own name, or, in general makes any final and effectual disposition of these things in action. Then they have become absolutely his own. If, however, he does not reduce them to possession, and dies, and she survives him, her whole right and property revive at his death, without any interest whatever in his representatives. And even if he disposes of them by will, this is ineffectual, unless he had reduced them into his possession while he lived. If, however, he survives her, he will be made, if he wishes it, her administrator, and then can collect all her things in action, and hold them or their proceeds as his own. And if she dies, and then he dies before he has collected these things in action, administration on his wife's effects will be granted to his next of kin, and not to hers; and when collected, they will belong to his estate. MARRIED WOMEN. sq On the other hand, the husband is liable, by the common law, with her, for all the debts for which his wife was liable when he married her. This is true whether they were then payable, or did not mature until after the marriage; and whether he received anything with her or not. If he does not pay them, and dies before the creditor has obtained a judgment against him, his estate is not liable, even if he had a fortune with her, and that fortune goes to his heirs or his creditors, and her creditors get nothing. So it is if the wife dies before the creditor recovers a judgment against the husband, and the husband then retains all her fortune. But her responsibility revives at his death, and she is liable as before marriage, even if she carried him a fortune, and all her fortune went, as above stated, to his representatives. But if she dies, leaving thmgs in action not reduced by the husband to possession, and he reduces them to his possession as her administrator, he must apply them to the payment of her debts, and can hold for himself only what is left after such payment. Such, we have said, is the common law of England and of this country. We have stated it, because it is the origin and common foundation of the law everywhere. But it is not just or right ; and there are few, perhaps no one of our States, in which it remains wholly unqualified by statutory provisions. But these provisions are very various ; and in some of the States they change with almost every year. In nearly all the States a married woman conveys her own real estate, and releases dower by joining in a deed with her husband ; but she is not generally bound by covenants therein, and, in many, must be separately examined. In most, she has a certain time, after removal of the disability of coverture, to assert her different rights, otherwise barred. Generally, devises or conveyances to husband and wife create a joint-tenancy, unless the terms of the devise or conveyance are expressly otherwise. And, upon the marriage of a woman who is plaintiff or defendant, the suit does not abate, but the husband may be admitted to prosecute or defend with her. I give here an Abstract of the law of husband and wife, as it stands on the Statutes of the several States, 40 MARRIED WOMEN. ALABAMA. In Alabama, the wife's separate estate is alone liable for her antenuptial debts, and the husband is not liable. Code (1876), § 2704. All her property held before, or acquired after, marriage, is secured to her separate use. Id. § 2705. The husband is her trustee, but not liable to account for the profits. Id. § 2706. She need not be of full age to release dower. Id. § 2236. The proceeds of a sale of her property are her separate estate, which the husband may use as most beneficial for her. They cannot contract with each other for the sale of any property. Id. § 2709. He may receive property coming to her. Her estate is liable for necessaries for the family. If a suit therefor is brought against a husband, and execution is not satisfied, her separate estate may be sold by order of court. She may dispose of her property by will. Id. §§ 27 1 1-27 13. If the husband is unfit to manage her estate (or his estate, or abandons her, or has no property e.xempt from execution), she may be vested with {he powers of 2. feme sole. Id. §§ 2717-2718. The homestead consists of 160 acres, if not in a city, town, or village, or if therein, any lot not exceeding $2,000 in value. If the wife die intestate, the husband is entitled to one-half of the personalty abso- lutely, and to the use of the realty during life, unless incapacitated. Stat. 1S76. ARKANSAS. In Arkansas, 2. feme cmert may be seized in her own right of any property not coming from her husband. Dig. of Ark. Stat. (1874), § 4193. The homestead of 160 acres of land, or a town or city lot, of the value of $5,000, occupied by the husband while living, or by widow or child of deceased husband, and certain specified personal propert)', are exempt from execution. § 2625. A married woman cannot be execu- trix. Id. ch. 1, § 9. Iler real and personal property are her sole property, and are not liable for her husband's debts, but may be controlled by her, and she may sue or be sued on account thereof as if unmarried. But the private property of no mar- ried woman is exempt from the payment of debts contracted by her husband pre- viously to the filing of a schedule of such separate property in the office of the recorder of the county where she lives. May make a will ; may insure her husband's life for her own benefit ; may manage and carry on business \\ith her separate estate; and is not liable for her husband's debts. Gault's Digest, Ark. Stat., 1S74. CALIFORNIA. In California, all property owned before marriage, or subsequently acquired by gift, bequest, devise, or descent, by either party, is the separate property of each; but all otherwise acquired by either after marriage is common property. An inven- tory of the wife's separate property, acknowledged or proved, as for a conveyance of land, must be recorded ; and this shall be notice of the wife's title : and her property included therein is exempt from seizure or execution for the debts of her husband. He has the management and control of her separate property during marriage ; but no alienation can be made, nor lien nor encumbrance created, unless she joins in the deed, and acknowledges upon a separate examination. But when she sells her separate property for his benefit, or he uses the proceeds with her written consent, it is deemed a gift ; and neither she nor those claiming under her can recover. In cer- tain cases, a trustee may be appointed to manage her property. The husband has MARRIED WOMEN. 41 the entire control and management of the common property, with lilce absolute power of disposition as of his own separate property; and the rents and profits of the sep- arate property of both are deemed common property, unless with respect to the wife, the terms of the bequest, devise, or gift, are otherwise. Dower and curtesy are abol- lished. Upon the death of either party, one-half the common property goes to the survivor, and the other half to the descendants of the deceased, subject to the pay- ment of his or her debts ; if there are no descendants, the whole to the survivor, subject to such payment. Upon divorce, the common property is equally divided. The separate property of the wife is alone liable for her antenuptial debts. But the parties may control these provisions by marriage contract, which must be in writing and recorded, or otherwise shall not affect third parties. It may be entered into by a minor, but cannot alter the legal order of descent, nor derogate from the husband's rights over the persons of his wife and children as head of the family, or the surviv- or's rights as guardian of the children. Civil Code of Cal., 1872, §§155-181. When a married woman is party to a suit, her husband is to be joined : except, if the action concerns her sejiarate property, she may sue alone ; and, if between herself and her husband, she may sue and be sued alone. If both are sued together, she may defend in her own right. Code of Civil Pro., § 370. There is also a homestead law, exempting the homestead to the amount of $5,000 from final process of court ; and it cannot be alienated without the wife joins in the conveyance, and acknowledges apart from her husband. Its other provisions are substantially similar to those before referred to. § 1242. By complying with certain requirements, she may carry on, in her own name, any business, trade, profession, or act ; and the property, etc., invested belongs exclusively to her ; and she has all the legal privileges and disabilities of debtor and creditor, and becomes responsible for the maintenance of her children. Her husband is not liable for her debts thus contracted without special written promise ; and she must take an oath that not more than $500 of the amount invested proceeded from him. Code of Civil Pro., §§ 1811-1821. She may cause the life other husband to be insured for her benefit. § 2763. The personal property of the wife can be sold or transferred only when husband and wife join in the sale or transfer, excepting only what she holds as 2, feme sole. She may dispose of her separate prop- erty by will, in like manner as any other person. § 1273. Her earnings are her separate property. COLORADO. All property coming to the wife before or after marriage, except from her husband remains her sole and separate property. She may bargain and sell, and enter into any contract in regard to the same as if she were sole. She may sue or be sued in , regard to her property, person, or reputation, the same as if sole ; may make a will, but she cannot bequeath away from her husband more than one-half her property without his consent in writing. She may carry on business on her own account, and her earnings are her separate property. The husband is liable for the debts of his wife, contracted before marriage, to tha extent of the property he may receive through her, but no further; and the wife may contract debts, sign bonds, bills, and notes, and sue and be sued in regard to the sam* as if she were sole. Gen. Laws of Col., 1877, §§ 1747-1761. Dower is abolished. 42 MARRIED WOMEN. CONNECTICUT. In Connecticut, all real estate conveyed to a married woman, in consideration of property acquired by her personal services during coverture, shall be held by her to her sole and separate use ; and the avails of all sales of the real estate of a married woman, if invested in her name, or in the name of a. trustee for her, belong to her. When any man abandons his wife for a continuous period of three years, with total neglect of duty, she may petition the Superior Court, as a court of equity, in any county where she owns real estate, and such court shall pass a decree empowering her to execute all conveyances necessary to dispose of such real estate, as if she were a feme sole. All the personal property of any woman, married since the 22d of June, 1849, and all the personal property acquired there- after by a married woman, and the avails of any such property if sold, shall vest in the husband in trust, to receive and enjoy the income thereof during his life, subject to the duty o£ expending therefrom so much as may be necessary for the support of his wife during her life, and of her children during their minority, and to apply such part of the principal thereof as may be necessary for the support of the wife, or otherwise, with her written assent; and upon his decease the remainder of such "trust property shall be transferred to the wife, if living, otherwise as she may by will have directed, or in default of such will to those entitled by law to succeed to her intestate estate ; but if the husband shall have paid liabilities incurred by her before marriage, a proper court of equity may, upon his application, discharge said trust, and vest absolutely in him such portion of said property as may be equiva- lent in value to the amount of such liabilities so paid. General Statutes, Revision of 1875, pp. 1S5, 187. Chapter 114, of the Laws of 1876-1877 (approved i6th of March, 1877), makes important changes in the relations between husband and wife. It leaves, however, the provisions above stated, in full force as to existing marriages, unless the persons now married agree to substitute the provisions of this latest statute. By this statute, neither husband nor wife acquires by marriage any interest in the property of the other, except as provided in this statute. Her earnings are her own property. She may contract with third persons or convey property to them as if unmarried. The property of either is not liable for the debts of the other, incurred before or after marriage. The purchases of either are presumed to be on his or her own account, unless they have gone to the support of the family, or for her reasonable apparel, or for her support when abandoned by her husband, in which cases he is liable. He is bound to support the famih'. On the death o£ either, the survivor has the use for life of one-third of the property, real and personal, of the other, which right is not to be defeated by any will of the other. If there be no will the survivor takes the third absolutely, and if no issue one- half. If either leaves a legacy to the other, that legacy is to be taken instead of this right; but the legatee may elect whether to accept the legacy or his or her statutory share. The judge of probate may make the wife a reasonable allowance for the support of herself and family during the settlement of the estate. They may con- tract before or after marriage for a provision in lieu of this statutory share. Neither party abandoning the other is entitled to this share. The provisions of this statute apply only to marriages hereafter contracted ; but parties now married may enter into a contract to substitute for their rights under other statutes, or at common law, the rights given by this act. All property hereafter acquired by any married woman shall be held by her to her sole and separate use. Pub. Acts, 1878, chap. 61. MARRIED WOMEN. DELAWARE. 43 In Delaware, the widow of one who niadc his will before marriage takes the same share as if he died intestate. Rev. Stat, 1874, u. 84, § 23. Insurance on life for her benefit is secured to her, if the premiums do not exceed $150. Id. c. 76, § 3. If her husband abandon her, the court may provide for the support of herself and her children out of his property. Id. l. 48, § 15. She cannot make a power of attorney. Id. c 83, § 13. Real estate, mortgages, stocks, and silver plate belonging to her at marriage, or acquired during coverture, are not subject to his disposition, or liable for his debts, except judgments recovered against him for his liabilities before marriage ; but she may not dispose of such property nor create any incum- brance on her real estate, nor dispose of the rents thereof, nor of the interest of her stock and mortgages, without his consent in writing under seal. This provision does not affect him as tenant by curtesy ; but with his consent, as aforesaid, the proceeds of such sale as above authorized may be invested in her own name as her sole property, subject to the laws governing the principal. Rev. Stat., 1874, p. 478. All money and other property acquired by a married woman, living separate from her husband and not supported by him, remains her separate property so long as they live apart. Rev. Stat., 1874, pp. 478-479. Real and persona! property belonging or coming to the wife before or after mar- riage, except what comes from the husband, remains her separate property ; she is not liable for his debts ; she may receive and control her separate earnings, and may sue and be sued in regard to her separate property. If twenty-one years of age, she may, with the written consent of her husband signed and sealed and attes- ted by two witnesses, make a will, but it shall not affect her husband's right of cur- tesy; and if she die intestate, her property goes to her heirs. Ibid. pp. 479-480. The real and personal property acquired by a married woman at any time, from any one except her husband, remains her sole and separate property, not subject to his disposal, or liable for his debts. A married woman may be executrix or admin- istratrix the same as if 3. feme sole. In purchasing real estate she may give any bond, mortgage, or security, as if sole, and her husband need not join. Laws of 1875, p. 289. She may make a power of attorney as if sole. Laws of 1877, p. 604. FLORIDA. In Florida, the husband or wife administers in preference to others. Thompson, Dig., 2 Div., Tit. 3, ch. 2, § I, T 5. Their rights, by marriage, under the Spanish law when in force, are preserved. Id., 2 Div., Tit. 3, ch. I, § 4; .2 Div., Tit. 3, ch. i, § 2, IT I. The wife retains independent of her husband, and is not liable for his debts (if inventoried and recorded ; but failure to record confers no rights upon him. Id., 2 Div., Tit. 3, ch. I, § 2, 1" 8), all property owned before, or obtained after marriage ; but he has the management of it. She cannot sue him for rent, nor can he sue her for management. Her property alone is liable for her antenup- tial debts ; and upon her death, he takes the same interest in her property as a child; but if she leaves no child, the whole. Id. 2 Div., Tit. 5, ,ch. I, § z. A homestead of fifty acres, or a lot in any city, town, or village, not exceeding five hundred dol- lars in value. " Every person of the age of twenty-one years," of sound mind, may make a will. Id. 2 Div., Tit. 3, ch. i, § I, t I. Certain provisions of the crim- inal code are extended to married women. Laws 1868, ch. 4, § 6. See Bush's Dig., 1872, chap. 118, p. 580. 44 MARRIED WOMEN. GEORGIA. In Georgia, marriage settlements, if not recorded within three months after execution, are invalid as to bond fide purchasers, creditors, or sureties without actual notice, becoming so before actual recording. Code, ed. of 1867, p. 354, The hus- band takes administration, and is sole heir of his deceased intestate wife. Id. p. 351. On the death of the husband without issue, the wife is the sole heir. Id. p. 351. The wife of an idiot or lunatic is generally entitled to the guardianship. Id. p. 370. If deserted, her earnings vest in herself. Id. p. 351. By an act, approved February 2S, 1S56, Laws of 1855-6, Tit. 19, No. 176, p. 229, a husband married thereafter isnotjiable for his wife's debts.i further than the property received through her will satisfy; and such property is not liable for his debts existing at the time of the marriage. A married woman may deposit in any savings institution any sum not more than $2,000, the earnings of herself or children, as her own separate property, as if she were unmarried. Laws of Georgia, 1865-66, Tit. 26, §§ i, ^. The property of the wife coming to her before or after marriage remaiiis her separate property, and is not liable for the debts of the husband. All acquisitions of the wife when living separate from her husband are her own. She may be a free-trader with the consent of her husband. May sue and be sued alone in regard to her separate estate ; and may make a will with the consent of her husband. Code of 1873, §§ 1754-1762. ILLINOIS. In Illinois, there is a homestead law, similar in its purposes to those before mentioned, exempting the homestead to the value of $1,000. It continues after the death of the householder, for the benefit of the widow and family, if one of them occupies the same until the youngest child is twenty-one years of age, and the death of the widow. Rev. Stats., 1877, p. 433. An Act was passed in 1874, entitled "An Act to revise the law in relation to husband and wife." Its principal provisions are, that she may own in her own right, real and personal property obtained by descent, gift, or purchase, and manage, sell, and convey the same to the same extent and in the same manner that the husband can property belonging to him. Neither husband nor wife shall be liable for the debts of the other contracted before marriage, nor for the separate debts of each other. Contracts may be made, and liabilities incurred by a wife, and the same enforced against her, to the same extent and in the same manner as if she were unmarried ; but she cannot enter into or carry on a partner- ship without the consent of her husband, unless he have abandoned her, or is idiotic or insane, or in the penitentiary. She may sue and be sued alone, as if she were unmarried. Neither he nor she can recover any compensation for Sny labor per- formed or services, rendered for the other. Provisions are made for the protection and support of the wife in case of her abandonment by the husband. By another Act, tenancy by the curtesy is abolished, and husband and wife are put on the same footing as to dower. Rev. Stats., 1877, p. 552, et seq. IVIarried woman may sue alone in regard to her separate property, and when the suit is between husband and wife ; may be executrix if her husband file his consent ; she may make a will. Stats. 1876, vol. 2, pp. 36, 491, 570. MARRIED WOMEN. INDIANA. 45 In Indiana, the husband is liable for her antenuptial debts only to the extent of the personal property he received with her, or from the sale or rent of her lands. Stats. Ind., 1S76, vol. i, p. 550. And such liability is not extinguished by her death. Id. § 2. Her Christian name is sufficient in a suit against them jointly. Cox v. Runnion, 5 Blackf., 176. Her admissions subsequent to marriage are itot admissible in a suit against them jointly for a debt of hers while single. Brown v. Lasselle, 6 Blackf., 147; Lasselle v. Brown, 8 id. 221. Process need only be served on the hus- band when subsequent proceedings are against both. Campbell v. Baldwin, 6 id. 364 ; King v. McCampbell, id. 435. The husband is a proper party to a scire facias, on a judge's transcript of judgment against the wife while single. Campbell v. Bald- win, supra. The plaintiff must prove marriage, in assumpsit against both on a note of wife before marriage, when non-assumpsit is pleaded, Wallace w Jones, 7 id. 321. They should sue separately in an action for libel upon both. Hart V. Crow, id. 351. As to the wife's agency, see Casteel v. Casteel, 8 id. 240. Judg- ment against them jointly for tort of wife must be satisfied first from her lands, if she have any Stats. 1876, p. 550. Her lands are not liable for her husband's debts, but remain her separate property; but she cannot encumber or convey them except by deed, in which her husband must join. Id. p. 550. Barnett v. Goings, 8 Blackf., 2&'.4. Suits relative thereto should be in the name of both ; if sep- arated, in her name, in which case the husband is not liable for costs. Id. p. 551. The wife cannot sue, or defend by guardian or next friend, unless under twenty-one. Id. p. 553. There are special provisions as to powers of a wife if abandoned by her husband. Id. p. 551. If a husband die, testate or intestate, one-third of his real estate goes to his wife in fee simple, free from all demands of creditors ; but if the real estate exceeds in value ten thousand dollars, she takes, as against creditors, only one-fourth; and if it exceeds twenty thousand dollars, only one-fifth. Id. p. 411. If she die, one third of her real estate goes to him. Id. 412. If a hilsband or wife die intestate and without a child, the whole estate goes to the survivor. Id. p. 413. She may elect to take under his will or by law. Dower and curtesy are abolished. Stats. Ind., 1876, pp. 4"-4i3- IOWA. In Iowa, a married woman owns in her own right all property, real or personal, which came to her by descent, gift, or purchase, and may manage and dispose of the same without the interference of her husband. Neither the husband nor wife is liable for the debts or contracts of the other, made or incurred before marriage or after. For all civil injuries by the wife, damages may be recovered from her alone. In case of abandonment of either by the other, the party abandoned may petition the court, who may, on sufficient proof of the facts, authorize the petitioner to manage or encumber the property of the abandoning party for the support of the family. Each may constitute the other his or her attorney in fact. She may sue for and recover wages for her personal services, and hold what she recovers as her own property. She may make contracts and incur liabilities in the same manner as if unmarried. Code of 1873, PP- 397 ^" OHIO. A wife cannot affect the husband's curtesy. The husband of an insane wife may be authorized to sell his real estate without her joining, free from her dower. Swan's Rev. Stat., 1S60, p. 852. The husband must be joined with the wife in all actions to which she is a party, except those concerning her separate property. Id. p. 953. Husband and wife may not testify for or against each other while the relation subsists, or afterwards. Id. p. 1038. As to the rights of the wife to children and property when her husband joins the Shakers, id. 1395. The husband or wife may insure his life (the annual premium not to exceed JS150, otherwise the surplus insurance to go to his representatives) for the benefit of her and her children. Id. p. 737. A married woman may dispose of her property by will. Id. p. 1615. And the will of a fenu sole is not revoked by her subsequent marriage. Id. p. 1622. The homestead to the value of J55CO, is exempt from execution, etc. A inarried woman whose property is appropriated for public use is empowered to do anything necessary for an owner to do, as if she were uimiarried. Id. p. 147. She has full power to contract for repairs and for cultivating her own property in her own name, during coverture, but cannot lease for a longer period than three years, and during her life and the life of any of her heirs, such property cannot be taken by his creditors ; but his estate by curtesy remains : and in all actions in regard to her separate estate it only is liable for any judgment rendered. Id. pp. 47, 48. All the personal property and rights of action coming to the wife in any way, including wages, are her sole and separate property. Laws of 1871, p. 48. She may insure her husband's life for her benefit. Laws 1872, p. 159. She may make deposits in savings banks and give receipts. Laws of 1873, p. 43. She may sue and be sued alone in regard to her separate property, contracts, or business, and her separate property is liable for any judgment obtained. Laws of 1874, p. 47. OREGON. • A married woman may sue in regard to her separate property. Gen. Laws (Edit. 1874), p. no. Her husband must join in a deed of her separate real estate. Id. p. 56 MARRIED WOMEN. 515. And by registering the same she may own all her property separate and free from the control of her husband, and it is not liable for his debts. Id. p. 663. She may make a will. Id. p. 7S8. PENNSYLVANIA. In Pennsylvania, a married woman has absolute control over her separate property, coming to her before or after marriage; it is not liable for the debts of the husband; it cannot be sold or touched by him without her written consent, and the husband is not liable for her debts, contracted before marriage. Purdon's Digest (loth Edit, by Brightly), p. 1005, § 13. She may make a will. Id. § 14. The hus- band's property is first liable for necessaries furnished the wife, and then her own property. Id. § 15. If she die intestate leaving children, the husband and chil- dren share alike in her personal property ; and if she leaves no children, the husband takes the whole ; her real estate descends according to the intestate laws of Pennsyl- vania, subject to his curtesy. Id. §§ l5 and 17. She may apply for trustees and declare a trust. Id. § 19. She may loan money to her husband and take security for the same. Id. § 21. If her husband deserts her, or neglects her, she may have the rights of 3. feme sole trader. Id. § 24. He is not liable for her contracts, other than before this act. Id. § 30. She may bring an action for libel or slander, if deserted by her husband ; but if the suit is against her husband, then she must sue by her next friend. Id. § 31. If of lawful age and entitled to a legacy she may give a refunding bond and other instruments to the executor or administrator. Id. § 32. Pier separate earnings are secured to her. Id. § 38. If her husband be found to be a lunatic by a competent court, she may dispose of lands which are her separate estate, by deed or by mortgage. Stat., 1878. RHODE ISLAND. In Rhode Island there is a provision substantially like that in Massachusetts as to a married woman coming into the State without her husband, and there living without him. Gen. Stat., 1S72, p. 328. Rents and profits of her real estate secured to her. The chattels real, furniture, plate, jewels, shares in an incorporated company, money deposited in savings bank, or debts due to her and secured by mortgage, may be transferred by joint deed of husband and wife. All other personal estate she may dispose of as if unmarried. Id. pp. 329, 330. Any married woman may dispose of her real estate by will, but not to deprive her husband of his tenancy by the curtesy. Id. 331. Her deposits in an institution for savings are her own property, id. p. 300. Any policy of insurance for her benefit, not exceeding the sum of $10,000, is hers independently of her husband, or the person effecting the insurance, or the creditors of either. Id. p. 332. SOUTH CAROLINA. In South Carolina, the real and personal property of a married woman, whether held by her at the time of the marriage, or accrued to her thereafter in any way, shall be her separate property, and not subject to levy or sale for her husband's debts. Rev. Stat, of 1873, ^h. 100. She may bequeath, devise, or convey her sep- arate property, as if unmarried ; and, if she dies iijtestate, her property shall descend in the same manner as is provided for the property of husband. She may purchase any property, and contract in reference to it, as if unmarried. Id. id. Her husband MARRIED WOMEN. 57 i% not liable for her debts contracted before marriage, nor for those contracted after except for her necessary support. Id. id. A homestead of the value of $1,000 is exempt from execution, and also $500 worth of personal property. Id. ch. 96. When the action concerns her separate property, she may sue and be sued alone. Id. p. 595. And judgment may be entered against her separately, and execution be levied on her separate property. Id. pp. 639 and 642. TENNESSEE. In Tennessee, the wife may manage her own and her husband's property, when he is incapacitated, Code of Tenn. (1858), p. 488; and her property is not liable in such case for his debts. Id. id. Property acquired by her, subsequent to an aban- donment by him, or separation from him, in consequence of ill-usage, is not liable for his debts. If she live with him again, it is. P. 488. Marriage contracts are not good where more property is concerned than the portion actually received with the wife at the time of marriage ; but subsequent legacies to her are considered as property received by her. P. 369. A feme covert may dispose by will of her own estate. Id. p. 488. A homestead of the value of jSl,ooo is exempted from execution, and shall not be aliened, if the owner be married, except by the joint deed of him and his wife. Laws of 1871, ch. 71. The personal property of the wife acquired before or after marriage is free from the husband's debts or contracts. Laws 1875, p. 125. He is not liable for his wife's antenuptial debts. Laws 1877, p. 104. TEXAS. In Texas, the marriage of a female minor gives her all the right she would have if of age. Paschal's Digest of Texas Laws, 1866, art. 4632. All property acquired by either party before marriage, or by gift, devise, or descent afterwards, is the separate property of each; but the husband has the management of the whole. Id. art. 4641. Property acquired by either during marriage, in other ways, is common; the husband may dispose of it during coverture; if there are no children, the whole goes to the survivor, otherwise one-half. Id. art. 4642. The parties may be jointly sued for necessaries and for expenses benefiting the wife's separate estate. Id. art. 4643. Execution may be levied on common prop- erty, or her separate property, at the plaintiff's option. Id. art. 4644. Marriage agreements must be made before a notary, and may be acknowledged by a minor, with the parent's or guardian's consent, id. art. 4633, and are unalterable after mar- riage. Id. art. 4634. A reservation of property therein to be good must be recorded. Id. art. 4635. Husband and wife may sue jointly and separately, for her effects. Id. art. 4636. The homestead, not exceeding two hundred acres of land, if not in any town or city (or if in a town or city, a lot or lots not exceeding five thousand dollars in value), is exempt from execution. The wife acts jointly with her husband, when she is appointed executrix or administratrix. Id. art. 1^34. The survivor takes the common property subject to its debts, nor is it necessary for her husband to administer on such property on her death ; as he has the same control of it then that he had in her lifetime. In case of his death, she has the same control, till she marries ; when it will be subject to administration. Id. arts. 4647, 4652. Husband may fill antecedent contracts and be compelled to give bonds for the proper manage- ment of the common property. Id. art. 4650. Her separate property is not charge- able with necessaries procured for him. Id. art. 4641, § 4. The common property is 58 MARRIED WOMEN. liable for all debts contracted during marriage. Id. art. 4646. Either may by will give to the survivor the power to keep his and her separate property together, until each of the several heirs come of age ; and to manage and control it, subject to and the provisions of the will. Id. art. 4653. VERMONT. In Vermont, in case of desertion, the Supreme Court may authorize a wife of eighteen years of age, to convey her real estate, and the" i^ersonal estate which came to her husband through her, if in the State and undisposed of by him ; and require any one owing her husband money in her right to pay it to her ; and the pro- ceeds, and her own earnings, and those of her minor children shall be held by her for her own use. Laws of 1869, No. 13 ; and Gen. Stat., 1863, p. 469. If the real estate of a wife be taken for public use, the damages are to be secured to her beneiit Id. p. 470. The wife of a man under guardianship may join with the guardian in making partition, etc. Id. p. 470. The wife of a man confined in the State prison is z.sdL feme sole as to suits for causes arising after his sentence. Id. 471. Married women may devise by will their inheritable real estate. Id. 471. The rents, etc, of all her real estate, and her husband's interest in it, shall be e.xempt from attach- ment or execution for his sole debts, nor can he convey them without her. Id. 471. She may insure the life of her husband for her own use, if the premium do not exceed S300. Id. 472. The homestead, not exceeding $500 in value, exempt from sale on execution. Id. p. 456; Acts of 1851, No. 29. The earnings of a married woman and her deposits in savings bank are not subject to trustee process by her husband. Gen Stats., pp. 305 and 549. The annual product of her real estate is subject to the payment of necessaries for herself and family, and for work and materials for their benefit. When abandoned by her husband, she may maintain an action in her own name, L. of V., 1866, p. 43. All personal property, and rights of personal property acquired during coverture, or by inheritance, or distribution, shall be held to her sole and separate use. Id. 1867, p. 29. VIRGINIA. In Virginia, the husband of an insane wife may make a deed to bar her right of dower, on leave of court ; but the same interest in the proceeds shall be secured to her. Code of Virginia, 1873, Tit. 36, ch. 124, § 11. If the husband die intestate, and without issue by her, she has the personal property which he had from or with her, and which he has not disposed of if his other personal estate suffices to pay his debts. Id. Tit. 33, ch. 119, § 10. Id. Tit. 33, ch. 118, § 3. A homestead not exceed- ing $2,000 in value. All the property of the wife owned by her at or before marriage, or coming to her after marriage as a separate or sole trader, is not subject to the con- trol of her husband or liable for his debts. She may make contracts in relation thereto ; may sue and be sued ; but her husband must join in all contracts in relation thereto, except where she is a sole trader, and shall be joined in any suit. She may devise and bequeath the same as if sole, subject to his right of curtesy. She may tile a bill in equity in her own name, if her husband is incompetent or refuses to join in a conveyance of her separate property, and the court will order a conveyance if it be for her interest. Laws of 1876-77, pp. 333-334. Laws of 1878. MARRIED WOMEN. WEST VIRGINIA. 59 In West Virginia, the real and personal property of a married woman ia secured to her separate use, free from the control or debts of her husband. If living separate, and apart from her husband, she may convey her property, otherwise her husband must join in the deed. She may insure her husband's life for her own ben- efit, provided the premium does not exceed $150. She may hold and enjoy patents for her inventions; may make deposits in the bank ; may hold stock in corporations and vote on the same. Her husband is liable for her debts contracted before mar- riage only to the extent of the property received by him through her. She may sue and be sued alone in regard to her separate estate, or in suits between herself and her husband, or when she is living separate and apart from him ; and she may be a feme sole trader, if living apart from him. She may make a will. Code of West Va., 1870, pp. 447-450- WISCONSIN. In Wisconsin, the marriage of 2, feme sole executrix or administratrix extinguishes her authority. Stats., 1871, p. 1213. And of a female ward terminates the guar- dianship as to custody of person, but not as to estate. Id. p. 1283. The husband holds his deceased wife's lands for life, unless she left by a former husband issue to whom the estate might descend. Id. p. 1162. Provisions exist by which powers may be given to married women, and regulating their execution of them. Id. c. 85, §§ 8, 15, 40, 44, 57. If husband and wife are impleaded, and the husband neglect to defend the rights of the wife, she, applying before judgment, may defend without him ; and if he lose her land by default, she may bring an action of ejectment after his death. Id. p. 17 12. The real estate of females married before, and the real and personal property of those after, Feb. 21, 1850, remain their separate property. And any married woman may receive, but not from her husband, and hold any property as il unmarried. She may insure the life of her husband, son, or any other person, for her own exclusive benefit. Id. pp. 1195-1197. The property of the wife remains to her separate use, not liable for her husband's debts, and not subject to his dis- posal. She may convey her separate property. If her husband desert her or neglect her, she may become a sole trader; and she may insure his life for her benefit. Stats., 1871, pp. 1195-96. Her husband is not liable for her debts contracted before marriage ; the individual earnings of the wife are her separate property, and she may sue and be sued alone in regard to the same. Laws of 1872, p. 218. She may make and hold deposits in savings banks. Laws of 1877, p. 207, 208. She may by a separate conveyance release her dower in any lands which her husband has conveyed. Stats., 1878, ch. 197. CANADA. In the provinces of the Dominion, generally, a married woman holds all her prop- erty and earnings free from the control of her husband. It is liable for her debts before marriage, and her husband is not. She may manage it and bequeath it. She is entitled to- dower, but there is no tenancy by curtesy. In the Province of Quebec the law is modified by the French law. There all the personal property and gains of both parties are put together, and form the community property, which the husband administers. Each can bequeath only his or her interest, and the heirs of each inherit the interest of each. 6o MARRIED WOMEN. It should be added, that the wife may everywhere even by common law be the agent of the husband, and transact for him his business transactions, making, accepting, or indorsing bills or notes, purchasing goods, rendering bills, collecting money and receipting for it, and in general entering into any contract so as to bind him, if she has his authority to do so. And while they continue to live together, the law considers the wife as clothed with authority by the husband to buy for him and his family all things necessary in kind and quantity for the proper support of his family; and for such purchases made by her, he is liable. The husband is responsible for necessaries supplied to his wife, if he does not supply them himself. And he continues so liable if he turns her out of his house, or otherwise separates himself from her, without good cause. But he is not so liable if she deserts him (unless on extreme provocation), or if he turns her away for good cause. If she leaves him because he treats her so ill that she has good right to go from him and his house, this is the same thing as turning her away; and she carries with her his credit for all necessaries supplied to her. But what the misconduct must be to give this right, is uncertain. Some English cases are very severe on this point. In one, a husband brought a prostitute into his house, and confined his wife to her own room under pretence of her insanity. But the court held this to be insuffi- cient. The Supreme Court of New York, in commenting upon this case, said that "the doctrine contained in it cannot be law in a Christian country." In America the law must be, and undoubtedly is, that the wife is not obliged to stay and endure cruelty or indecency. It may be added, that if a man lives with a woman as his wife, and represents her to be so, he is liable for necessaries supplied to her, and for her contracts, in the same way as if she were his wife ; and this even to one who knows that she is not his wife. The statutes of which we have given an abstract are intended to secure to a married woman all her rights. But in all parts MARRIED WOMEN. 6,1 of this country, women about to marry — or their friends, for them — often wish to secure to them certain powers and rights, and to limit these in certain ways, or to malce sure that their property is in safe and slcilful hands. This can only be done by conveying and transferring the property to Trustees ; that is, to certain persons to hold the same in trust. This is done by a legal instrument, which is almost always an Indenture ; by which is meant an instrument under seal between two or more parties. This instrument must set forth precisely, and with legal accuracy, just what the trust is; that is to say, just what the trustees, or the woman, or her husband may do, and just what they must do. This is one of those instruments which require peculiar care and exactness. We give as models, or forms, two, differing in their terms and purposes. Both were drawn by very skilful lawyers, and with such changes, of omission or addition or alteration, as the circumstances of any case or the wishes of the parties make necessary, will be useful and safe guides in the preparation of such instruments. (4.) An Indenture to put in Trust the Property of an Unmarried "Woman. This Indenture of two parts, made and concluded this day of , A.D. eighteen hundred and , by and between of , single woman, of the first part, and , and , of , of the second part, Witnesseth, That the said party of the first part is seized and possessed of certain real and personal estate, to wit, one undivided moiety of the reversion in and of a messuage and land in , bounded as follows : a mortgage of a lot of land bounded on Street, and described in the deed of to , which is recorded in the Registry of Deeds, lib. , fol. ; a mortgage of a lot of land bounded on Street, and described in the deed of , recorded in the said Registry, lib. , fol. ; a mortgage of two lots of land bounded on Street, and described in the deed of to , recorded in the said Registry, lib. , fol. ; a mortgage of a lot of land bounded on Street, and described in the deed of to recorded in the Registry aforesaid, lib. , fol. ; one hundred shares in the capital stock of the Bank in ; twenty-five shares in the capital stock of the Bank in ; and fifty shares in the 62 MARRIED WOMEN. capital stock of the Bank of ; also a note of hand signed by the said , for the sum of fifteen thousand dollars; a note of hand signed by the said , for the sum of three thousand dollars; a note of hand signed by and , for the sum of two thousand five hundred dollars; a note of hand signed by , for the sum of six thousand dollars, which notes are severally secured by the lands and tenements, mortgaged as aforesaid ; also a note of hand signed by for the sum of one thousand dollars. All which real and personal estate the said party of the first part is desirous (hat the party of the second part should have and hold in trust for certain uses and purposes hereinafter set forth and expressed ; and in con- formity with said intention, and for the purpose of carrying the same into effect, the said party of the first part, in consideration of the sum of five dollars paid to her by the party of the second part, the receipt of which she doth hereby acknowledge, and for divers other good considerations moving her thereto, hath given, granted, sold, and conveyed, and doth give, grant, bargain, sell, and convey, all the said lands, tenements, and real estate, and doth hereby bargain, sell, transfer, assign, and set over all the aforesaid chattels and personal estate, as the same are above specified and described, unto the said and , and their heirs and assigns. To have and to hold the said granted premises unto the said and , and their heirs and assigns, and to the survivor of them and his heirs and assigns forever to their own use, but in trust nevertheless for the purposes, objects, and intents hereinafter set forth and expressed, and for none other, namely : First, That the said trustees and their successors in the said trust shall permit the said party of the first part, without any hindrance or interference by them, so long as she shall remain sole and unmarried, and shall see fit so to do, to receive and take in her proper person, or by her agent or attorney, the rents, income, dividends, interest, and profits of the said trust estate, real and personal, without any accountability therefor, to them the said parties of the second part ; but if required by her, the saic^party of the first part, so to do, the said trustees and their successors shall collect and receive the said rents, income, and profits of the trust estate, and shall from time to time pay over the same unto the said party of the first part for her own use. ■ Secondly, That from and after the solemnization of the marriage of the said party of the first part, whenever that event may take place, the said trustees and their successors shall collect, take, and receive all the rents, income, and profits of the trust estate, real and personal, and shall from time to time pay over the same to the said party of the first part, to and upon her separate order or receipt, made and signed by her, at or about the time of such payments respectively, and for her proper use, free from the control or interference of any husband she may have. Thirdly, That at and after the decease of said party of the first part, the said trustees and their successors shall be seized and possessed of the said MARRIED WOMEN. 63 trust estate to and for the use of such person or persons as the said party of the first part, by any last will and testament, duly executed, if she die sole and unmarried, or, in case she be at her decease a married woman, by any paper writing signed by her in presence of two or more credible witnesses, shall order, and appoint to take, receive, and hold the same, and in such shares and manner, and upon such terms and conditions, as she shall direct, order, and appoint as aforesaid ; and in case the said party of the first part shall omit to make any such will or testamentary appointment, then the said trustees and their successors shall hold the trust estate to the use of such person or persons as by the laws of this Commonwealth would, in case the party of the first part had died seized and possessed of the then existing trust property in her own right, have been entitled to the same as heirs-at-law, or distributees; provided always, that in such case the husband of the said party of the first part, if she leave a husband, shall be entitled to his life estate in all the real estate, as if he were tenant by the curtesy in and of the same, and be subject to all the duties incident to a tenant by the curtesy. Fourthly, That the said trustees and their successors shall keep the said trust estate, real and personal, constantly invested in the most safe and profitable manner in their power, but relying always on their discretion in this behalf, and shall accordingly have power to sell and dispose of any of the said trust estate, and to make and pass all necessary deeds and instru- ments of conveyance thereof, and to purchase any other estate, real or personal and the same to sell again, and so from time to time to change the property composing the trust fund and estate ; provided always, that all real and personal estate which may be purchased by them the said trustees with the trust moneys, or the proceeds of sale of the trust property, shall be conveyed and assigned to them and their successors as trustees as aforesaid, and shall be holden always upon the same trusts, and with the same powers, and for the same purposes, as are set forth and declared in this indenture of and concerning the estate firstly above described and conveyed to the said trustees. Fifthly, That the said trustees or their successors, in case the said party of the first part shall so order and direct, shall invest the trust money or estate, or such part thereof as they shall be ordered as aforesaid, in the purchase of such house for the habitation and dwelling of the said party of the first part as she may select, and shall lay out and expend such other part of the said trust money and estate as she, the said party, shall order and direct, in the purchase of such furniture, plate, horses, and equipages, as she may choose and select for her own use ; and shall permit her, the said party of the first part, with any husband she may have, to occupy and inhabit the said house, and to use and enjoy the said furniture, plate, carriages, and horses without impeachment of waste, and without any accountability to them the said trustees for the reasonable wear and use thereof, or injury by casualty; and the trustees shall keep the said house 6^. MARRIED WOMEN. and furniture insured against fire, and, in case of loss or injury by fire, shall lay out and expend the money which they may receive from the assurers, in the repairing or rebuilding of the said house, if so directed by the said party of the first part, and in the purchase of other and new furniture, plate, horses, and equipages in place of those which have been injured or destroyed by fire, and shall permit the said party of the first part to use and enjoy the same in manner aforesaid. And the said trustees and their successors shall, when required by the said party of the first part so to do, sell and dispose of any house which may have been purchased by them for the personal occupation and habitation of the said party of the first part, and shall in manner aforesaid lay out the proceeds of sale of such house, and such other moneys as she shall direct, in the purchase of such other house as she shall select and direct them to purchase, and shall permit her to occupy the same in manner above set forth and expressed ; and they shall also, when directed by the said party of the first part, sell and dispose of any of the furniture and other chattels, so as aforesaid, jjurchased by them for her use, and shall from time to time lay out and expend the proceeds of such sales and such other sums of money as they shall be directed by the said party of the first part to do, in the purchase cf such oilier furniture, pl.>te, horses, and equipages as she shall select for her own use ; and shall permit her to use and enjoy the same in manner aforesaid ; provided always, that in case of any attempt by any person to sell or remove the said furniture or other chattels out of the personal care and custody of the party of the first part, without the consent of the trustees, they shall forthwith take possession thereof, and convert the chattels so attempted to be removed or sold, into money, and shall hold the said money upon the trusts and for the uses set forth in this indenture ; and in all the cases in which any order or direction shall be given by the said parly of the first part it shall be in writing, and be signed by her in presence of one witness at least. Sixthly, That in case of the decease of the said trustees, or either of them, others shall be nominated by the party of the first part (if she see fit so to do), to be appointed as trustees in the place of the deceased; and upon such nomination being made and notified to the surviving trustee, he shall forthwith, if such person be suitable, make and execute all such instru- ments in the law as shall be needful in the opinion of counsel, to associate such person in the said trust, and to transfer and convey to him the same interest in the trust estate, with the same powers over the same, and subject to the same duties, as are vested in and assumed by the parties of the second part in and by this instrument' and the laws of the land. And in case either of the said trustees, the parties of the second part, or their successors, shall wish to resign said trust, they shall be at liberty to do so, first giving reason- able notice to the party of the first part, that she may find some suitable person, who shall be acceptable to the remaining trustee, to assume the said trust in place of the trustee resigning ; and the same proceedings shall then be had for the introduction and appointment of a new trustee as are above MARRIED WOMEN. 65 provided in case of the decease of a trustee ; and in case of the decease or resignation at any time of any of tlie persons wlio may be hereafter appointed trustees, in manner aforesaid, similar proceedings shall be had for supplying the vacancy created by such decease or resignation. And the trust fund, property, and estate shall always be had and held by the persons so appointed from time to time in trust for the uses and purposes set forth in this indenture, and none other. And all nominations made as aforesaid shall be in writing. Seventhly, That the purchasers of any estate, real or personal, which may be sold and conveyed by the trustees under this indenture, shall not be bound to see to the application of the purchase-money ; but the receipt and acquittance of the trustees shall be a full and adequate discharge to such purchasers for such purchase-money. Eighthly, That all the expenses and incidental charges of the trustees shall be deducted from the income of the trust property, as well as a reasonable allowance to the trustees for their own services. Ninthly, That the resignation of any trustee shall not be, nor be pleaded as, a bar to the chancery jurisdiction of the courts of the Commonwealth, in case a resort against such trustee to the said court shall be necessary. Tenthly, That the trustees under this indenture, each for himself and not for each other, shall be responsible for the want of due diligence only in the execution of the said trusts, and for their wilful defaults, and in case of the omission by the party of the first part to nominate a successor to either of the parties of the second part, or to any person appointed instead of them, or either of them who may resign or decease, the surviving or continuing trustee shall have power and authority to execute all the trusts herein specified and declared, in as ample manner as both the said parties of the second part might jointly have done. In Testimony Whereof, The said and hereto set their hands and seals, the day and year first above written. {Signatures^ {Seals.) Signed, Sealed, and Delivered in Presence of {JVitnesses.) May 18 Then the within-named acknowledged this instrument to be his free act and deed before me. (Signed) Justice of the Peace. (5.) Another Form of Indenture in Trust, for Property of Unmarried "Women. This Indenture, Made and concluded this day of , in the year of our Lord one thousand eight hundred and , by and between , of in the county of , single woman, of the one part, ee MARRIED WOMEN. and of said the father of the said , of the oihef part: Witnesseth, Whereas the said is seized and possessed in her own right, as tenant in common, of one undivided fifth part of the following-described real estate ; and is also seized and possessed of and in one undivided fifth part of a certain piece of land, situate on Street in said ; with the buildings thereon standing, and privileges and appurtenances thereto belonging ; the whole of which were conveyed by to , by deed bearing date the twenty-eighth of , in the year of our Lord one thousand eight hundred , and recorded in the Registry of Deeds for said county, lib. , fol. : also of and in one undivided fifth of one undivided fortieth part of thirty acres of land situate in said ; which was conveyed to , by , by deed bearing date the eighteenth day of , in the year of our Lord eighteen hundred , and recorded with (Suffolk) Deeds, lib. , fol. . And whereas the said is possessed of the following personal estate : to wit, of eighteen thousand dollars in the capital stock, o« shares, of the Bank in said , as appears by a certifi- cate thereof, and is also possessed of the promissory note of said for the sum of fifteen hundred dollars, dated the ninth day of last, and payable by instalments of five hundred dollars in one, two, and three years therefrom ; and of another promissory note of said , for five hundred dollars, dated the seventeenth day of last, and payable in one year therefrom ; and also of the bond of , and , dated the seventh day of , in the year of our Lord one thousand eight hundred and , conditioned for the payment of five hundred dollars and interest, and of the principal of which there has been paid one hundred and fifty dollars, and all the interest up to the seventh day of last. And whereas she, the said , is desirous of securing the said estate, both real and personal, in the event of her marriage, to her sole use and benefit; and for this purpose it hath been agreed, that all the estate and property aforesaid shall be granted, assigned, and transferred unto the said , and to such other trustee as shall hereafter be appointed accord- ing to the provisions hereinafter expressed, to be held in trust by them for the separate and sole use and benefit of her, the said , and her heirs (notwithstanding any such coverture), upon the terms and condi- tions, for the uses, intents, and purposes, under the limitations, and for and during the time, as hereinafter is expressed. Now, this indenture witnesseth, that the said , in consideration of the premises, and of the covenants hereinafter contained, and also of one dollar now paid to her by the said , the receipt whereof is hereby acknowledged, hath granted, bargained, sold, and transferred, and by these presents doth grant, bargain, sell, and transfer, unto the said , his heirs and assigns, forever, all the real and personal estate, stocks, notes, and bond, hereinbefore described and specified; MARRIED WOMEN. g- To have and to hold the same to him, the said , his heirs and assigns, forever, to and for the several uses, trusts, and purposes, and Bubject to the several provisions, limitations, powers, and agreements, hereinafter limited, declared, and expressed ; that is to say, to the sole use and behoof of the said and her heirs until the solemnization of any such marriage, and, from and immediately afterwards, to and for the following uses, intents, and purposes, to wit : That the said estate, both real and personal, stocks, notes, and bond, shall be held, during the natural life of the said , by him, the said , and by such other trustee as shall be appointed for that purpose in the manner hereinafter expressed and provided, to the sole use and separate benefit of her the said , without being liable to the debts, incumbrances, or control of any husband she may have during the existence and continuance of said trust ; that said shall, from time to time, lease and demise said real estate to the best profit and advantage ; and, at such time as he shall see fit and think proper, sell and dispose of all or any part of said real estate, upon the most advantageous terms, for the interest of said ; and shall invest the proceeds thereof in the safest and most productive funds ; and, upon payment of the capital stocks, notes, or bond aforesaid, invest the same in like manner ; that he shall pay all the rents and profits of said real estate while unsold, and the clear interest and income of said funds, and also the clear interest and income of said personal property hereby assigned, and all the net profits arising and accruing therefrom, as well as such portion of the principal as he shall judge necessary for her convenience and support, unto her, the said , or to such person or persons as she shall in writing, without the signature or interference of any husband, appoint, for and during the natural life of her, the said ; that is to say, for and during the term for which said trust shall continue, according to the provisions and limita- tions hereinafter expressed ; and, after the decease of the said , the remaining income and profit unpaid, to the child or children of the said , if she shall leave any ; and, upon such decease, grant, convey, and transfer the same estate, both real and personal, and any investments in funds, unto such child or children, his and their heirs and assigns, forever ; and also grant and convey, in like manner, any real estate which may be purchased with the proceeds of said property : and in case the said should die without issue, then to grant, convey, and transfer the same, in like manner, unto the heirs-at-law of her the said And the said , for himself, his heirs, executors, and adminis- trators, doth covenant, grant, and agree, to and with the said , her executors and administrators, that in case she, the said , should desire any real estate to be purchased with any part of said capital stock, funds, or interest, of the estate and property hereby conveyed, and it should be deemed advantageous and proper by the said to comply there- with, then he will make a purchase thereof, and take deeds of conveyance 68 MARRIED IVOMEN. of such estate in his own name, and wiH hold the same subject to the like trusts, limitations, powers, and agreements as are herein limited, declared, and expressed ; and will pay over the rents and income thereof as is above provided, unless she, the said , shall choose to occupy and live on the same ; and, in such case, no rents shall be exacted or required of any husband of the said . And in case of mental infirmity, or any other incapacity, which shall, in the opinion of the judge of Probate for the County of for the time being, prevent a suitable execution of the aforesaid trusts by him, the said , he does also covenant as afore- said to grant, sell, and transfer the aforesaid estate and property, both real and personal, which shall then remain in his possession and under his con- trol, and such other as he may have purchased in pursuance of the trusts aforesaid, unto any trustee who shall be appointed by the said Judge of Probate for the time being (who, on the happening of such infirmity or other incapacity, is hereby authorized to make such appointment) ; to have and to hold the same to such trustee, subject to the several provisions, limitations, powers, and agreements, and upon the same intent, uses, and trusts, in like manner as held by him, said . And upon the happening of the death of him, the said , he doth further covenant that his heirs or executors or administrators shall and will, as soon as practicable thereafter, make good and sufficient instruments of conveyance to transfei and grant the aforesaid estate, both real and personal, or such parts thereof as shall then remain undisposed of, and such as may be purchased by him, said , in pursuance of the trusts and intent of this indenture, unto such person as shall be appointed the trustee of the said for that purpose by the said Judge of Probate for the time being ; who is, in that event, authorized to make the appointment. And the said doth also further covenant as aforesaid, that upon the death of the said , if he shall then be her trustee under the provisions of this indenture, he will grant, transfer, and assign all and singular the estate and property, both real and personal, which he may then hold under the grant and trusts afore- said, unto the child or children of her, the said , if she shall leave any. But no grant and conveyance, as is above provided, shall be made unto any such trustee until he shall have given bond, with sufficient sureties, to the Judge of Probate for said county for the timq being, for the benefit of the said and her heirs, upon condition that he, the said trustee, his heirs, executors, or administrators, shall hold the said estate and property, to be granted and transferred, subject to all the limitations, provisions, powers and agreements, and for the several uses, purposes, and trusts, in this indenture limited, declared, and expressed ; and upon the condition that he shall at all times well and truly observe, fulfil, and perform the same. And the said trustee so appointed shall thereupon have all the powers, and be bound to perform all the duties enjoined upon and required by this indenture, of him, the said THE LEGAL MEANING OF AGREEMENT. 69 In Witness Whereof, The said parties have hereto interchangeably set their hands and seals, the day and year first above written. {Signatures.) (Seals.) Signed, Sealed, and Delivered in Presence of ( Witness.) , ss. 30th September, A. D. 18 Then personally appeared the above-named and and severally acknov^ledged this indenture to be their free act and deed. (Signature.) yustice of the Peace. CHAPTER VI. AGREEMENT AND ASSENT. SECTION I. THE LEGAL MEANING OF AGREEMENT. No contract which the law will recognize and enforce exists, until the parties to it have agreed upon the same thing, in the same sense. Thus, in a case where the defendants by letter offered to the plaintiffs a certain quantity of "good" barley, at a certain price. Plaintiffs replied : " We accept your offer, expecting you will give us fine barley and full weight." The jury found that there was a distinction in the trade between the words "good" and "fine," and the court held that there was not a sufficient acceptance to sustain an action for non-delivery of the barley. So where a person sent an order to a merchant for a particular quantity of goods on certain terms of credit, and the merchant sent a less quantity of goods, and at a shorter credit, and the goods were lost by the way, it was held by the court that the merchant must bear the loss, for there was no sale or contract between the parties. There is an apparent exception to this rule, when, for exam- ple, A declares that he was not understood by B, or did not understand B, in a certain transaction, and that there is there- fore no bargain between them ; and B replies by showing that the language used on both sides was explicit and unequivocal. 70 AGREEMENT AND ASSENT. and constituted a distinct contract. Here, B would prevail. The reason is, that the law presumes that every person means that which he distinctly says. If A had offered to sell B his horse for twenty dollars, and received the money, and then tendered to B his cow, on the ground that he was thinking only of his cow, and used the word horse by mistake, this would not avoid his obligation, unless he could show that the mistake was known to B ; and then the bargain would be fraudulent on B's part. This would be an extreme case ; but difficult questions of this sort often arise. If A had agreed to sell, and had actu- ally delivered, a cargo of shingles at "3.25," supposing that he was to receive that price for a "bunch," which contains five hundred, and B supposed that he had bought them at that price for a "thousand," which view should prevail.' The answer would be, first, that if there was, honestly and actually, a mutual mistake, there was no contract, and the shingles should be returned. But, secondly, if a jury should be satisfied, from the words used, from the usage prevailing where the bargain was made and known to the parties, or from other circumstances attending the bargain, that B knew that A was expecting that price for a bunch, B would have to pay it ; and if they were satis- fied that A knew that B supposed himself to be buying the shingles by the thousand, then A could not reclaim the shingles, nor recover more than that price. There was such a case so decided. In construing a contract, the actual and honest intention of the parties is always regarded as an important guide. But it must be their intention as expressed in the contract. If the parties, or either of them, show that a bargain was honestly but mistakenly made, which Was materially different from that intended to be made, it would be a good ground for declaring that there was no contract. Mistakes of fact in a contract can be corrected by the courts, but not mistakes of law; no man being permitted to take advantage of a mistake of the law, either to enforce a right, or avoid an obligation ; for it would be obviously dangerous and unwise to encourage ignorance of the law by permitting a party to profit, or to escape, by his ignorance. But the law which IV//A T IS AN ASSENT. n one is required at his peril to know, is the law of his own coun- tfy. Ignorance of the law of a foreign state is ignorance of fact. In this respect the several States of the Union are foreign to each other. Hence, money paid through ignorance or mis- take of the law of another State may be recovered back. Fraud annuls all obligation and all contracts into which it enters, and the law relieves the party defrauded. If both of the parties act fraudulently, neither can take advantage of the fraud of the other; and if one acts fraudulently, he cannot set his own fraud aside for his own benefit. Thus, if one gives a fraudulent bill of sale of property, for the purpose of defraud- ing his creditors, he cannot set that bill aside and annul that sale, although those who are injured by it may. SECTION II. WHAT rs AN ASSENT? The most important application of the rule .stated at the beginning of this chapter, is the requirement that an accept- ance of a proposition must be a simple and direct affirmative, in order to constitute a contract. For if the party receiving the proposition or offer accepts it on any condition, or with any change of its terms or provisions which is not altogether imma- terial, it is no contract until the party making the offer consents to those modifications. Therefore, if a party offers to buy certain goods at a certain price, and directs how the goods shall be sent to him, and the owner accepts the offer and sends the goods as directed, and they are lost on the way, it is the buyer's loss, because the goods were his by the sale, which was completed when the offer was accepted. But if the owner accepts the offer, and in his acceptance makes any material modification of its terms, and then sends the goods, and they are lost, it is his loss now, because the contract of sale was not completed. Nor will a voluntary compliance with the conditions and terms of a proposed contract always make it a contract obliga- tory on the other party, unless there have been an accession to, or an acceptance of, the proposition itself. In general, if A 72 AGREEMENT AND ASSENT. says to B, if you will do this, I will do that ; and B instantly does what was proposed to him, this doing so is an acceptance, and A is bound. But if the doing of the thing may be some- thing else than an acceptance of the offer, or if the thing may be done for some other reason than to signify an acceptance or assent, there must be express acceptance also, or there is no bargain. SECTION III. OFFERS MADE ON TIME. It sometimes happens that one party makes another a cer- tain offer, and gives him a certain time in which he may accept it. The law on this subject was once somewhat uncertain, but may now be considered as settled. It is this : If A makes an offer to B, which B at once accepts, there is a bargain. But it is not necessary that the acceptance should follow the offer instantaneously. B may take time to consider, and although A may expressly withdraw his offer at any time before acceptance, yet if he does not do so, B may accept within a reasonable time ; and if this is done, A cannot say : " I have changed my mind." What is a reasonable time must depend upon the cir- cumstances of each case. If A when he makes the offer says to B that he may have a certain time wherein to accept it, and is paid by B for thus giving him time, he cannot withdraw the offer; or if he withdraws it, for this breach of his contract, the other party, B, may have his action for damages. If A is not paid for giving the time, A may then withdraw the offer at once, or whenever he pleases, provided B has not previously accepted it. But if B has accepted the offer before the time which was given expired, and before the offer was withdrawn, then A is bound, although he gave the time voluntarily and without con- sideration. For his offer is to be regarded as a continuing offer during all the time given, unless it be withdrawn. A railroad company asked for the terms of certain land they thought they might wish to buy. The owner said in a letter, they might have it at a certain price, if they took it within thirty days. After some twenty-five days the railroad company wrote accepting the offer. The owner says, No, I have altered my mind ; the land A BARGAIN BY CORRESPONDENCE. 73 is worth more ; and I have a right to withdraw my offer, because you paid me nothing for the time of thirty days allowed you. But the court held that he was bound, because this was an offer continued through the thirty days, unless withdrawn. They said that the writing when made was without consideration, and did not therefore form a contract. It was then but an offer to contract, and the party making the offer most undoubtedly might have withdrawn it at any time before acceptance. But when the offer was accepted, the minds of the parties met, and the contract was complete, and no withdrawal could then be made. SECTION IV. A BARGAIN BY CORRESPONDENCE. When a contract is made by correspondence, the question occurs. At what time, or by what act, is the contract completed } The law as now settled in this country may be stated thus. If A writes to B proposing to him a contract, this js a continued proposition or offer of A until it reaches B, and for such time afterwards as would give B a reasonable opportunity of accept- ing it. It may be withdrawn by A at any time before acceptance; but is not withdrawn in law until a notice of withdrawal reaches B. This is the important point. Thus if A, in Boston, writes to B, in New Orleans, offering him a certain price for one hundred bales of cotton ; and the next day alters his mind, and writes to B, withdrawing his offer ; if the first letter reaches B before the second reaches him, although after it was written and mailed, B has a right to accept the offer before he gets the letter withdrawing it, and by his acceptance he binds A. But if B delays his acceptance until the second letter reaches him, the offer is then effectually withdrawn. It is a sufficient acceptance if B writes to A declaring his acceptance, and puts his letter into the post-office. It seems now quite clear, that as soon as the letter leaves the post-ofHce, or is beyond the reach of the writer, the acceptance is complete. That is, on the 5 th of May, A in Boston writes to B, in New Orleans, offering to buy certain goods there at a certain price. On the 8th of May, A writes that he has altered his mind and cannot give so much, and 74 AGREEMENT AND ASSENT. mails the letter. On the 14th of May, B in New Orleans receives the first letter, and the next day, the isth, answers it, saying that he accepts the offer and mails his letter. On the 17th, he receives the second letter of A withdrawing the offer. Nevertheless the bargain is complete and the goods are sold. But if B had kept his letter of acceptance by him until he had received A's letter of withdrawal, he could not then have put his letter into the mail and bound A by his acceptance. The party making the offer by letter is not bound to use the same means for withdrawing it which he uses for making it ; because any withdrawal, however made, terminates the offer, if only it reaches the other party before his acceptance. Thus, if A in the case just supposed, a week after he has sent his offer by letter, telegraphs a withdrawal to B, and this withdrawal reaches him before he accepts the offer, this withdrawal would be effectual. So if he sent his offer by letter to England, in a sailing ship, and a fortnight after sent a revocation in a steamer, or by telegraph, if this last arrives before the first arrived and was accepted, it would be an effectual revocation. SECTION V. WHAT EVIDENCE MAY BE RECEIVED IN REFERENCE TO A WRITTEN CONTRACT. If an agreement upon which a party relies be oral only, it must be proved by evidence. But if the contract be reduced to writing, it proves itself ; and now no evidence whatever is receivable for the purpose of varying the contract or affecting its obligations. The reasons are obvious. The law prefers written to oral evidence, from its greater precision and certainty, and because it is less open to fraud. And where parties have closed a negotiation and reduced the result to writing, it is pre- sumed that they have written all they intended to agree to, and therefore, that what is omitted was finally rejected by them. But some evidence may always be necessary, and therefore admissible ; as, evidence of the identity of the parties to the contract, or of the things which form its subject-matter. Quite often, neither the court nor the jury can know what person, or EVIDENCE OF A WRITTEN CONTRACT. 75 what thing, or what land, a contract relates to, unless the parties agree in stating this, or evidence shows it. The rule on this subject is, that, while no evidence is receivable to contradict or vary a written contract, evidence may be received to explain its meaning, and show what the contract is in fact. There are some obvious inferences from this rule. The first is, that, as evidence is admissible only to explain the con- tract, if the contract needs no explanation, that is, if it be by itself perfectly explicit and unambiguous, evidence is inadmissi- ble, because it is wholly unnecessary unless it is offered to vary the meaning and force of the contract, and that is not permitted. Another, following from this, is, that if the evidence purports, under the name of explanation, to give to the contract a mean- ing which its words do not fairly bear, this is not permitted, because such evidence would in fact make a new contract. A frequent use of oral evidence is to explain, by means of persons experienced in the particular subject of the contract, the meaning of technical or peculiar words and phrases ; and such witnesses are called Experts, and are very freely admitted. It may be remarked, too, that a written receipt for money is not within the general rule as to written contracts, being always open, not only to explanation, but even to contradiction, by extrinsic evidence. And this is true of the receipt part of any instrument. If a written instrument not only recites or acknowledges the receiving of money or goods, but contains also a contract or grant, such instrument, as to the contract or grant, is no more to be affected by any evidence than if it con- tained no receipt ; but as to the receipt itself, it may be varied or contradicted in the same mann^ as if the instrument con- tained nothing else. Thus, if a deed recites that it was made in "consideration of ten thousand dollars, the receipt whereof is hereby acknowledged," the grantor may sue for the money, or any part of it, and prove that the amount was not paid ; for this sifects only the receipt part of the deed. But he cannot say that the grant of the land was void because he never had his money, nor that any agreement the deed contained was void for such a reason ; because, if he proved that the money was not paid for the purpose of thus annulling his grant or agree- / i •jQ AGREEMENT AND ASSENT. merit, he would be offering evidence to affect the other part of the deed ; and that he cannot do. A legal inference from a written promise can no more be rebutted by evidence than if it were written. Thus, if A, by his note, promises to pay B a sum of money in sixty days, he cannot when called upon resist the claim by proving that B, when the note was made, agreed to wait ninety days ; and if A promise in writing to pay money, and no time is set, this is by force of law a promise to pay on demand, and evidence is not receivable to show that a distant period was agreed upon. Generally speaking, all written instruments are construed and interpreted by the law according to the simple, customary, and natural meaning of the words used. It should be added, that when a contract is so obscure or uncertain that it must be set wholly aside, and regarded as no contract whatever, it can have no force or effect upon the rights or obligations of the parties, but all of these are the same as if they had not made the contract. SECTION VI. CUSTOM, OR USAGE. A CUSTOM, or usage, which may be regarded as appropriate to a contract, has often great weight in reference to it. This it may have, first, as to the construction or meaning of its words ; and ne.xt, as to the intention or understanding of the parties. The ground and reason for this influence of a custom is this. If it exists so widely and uniformly^ among such persons as make the contract, and for so long a time, that every one of them must be considered as knowing it, and acting with refer- ence to it, then it ought to have the same force as if both parties expressly adopted it ; because each party has a right to think that the other acted upon it. Sometimes this is carried very far. In one English case, a man had agreed to leave in a certain rabbit warren ten tlwusand rabbits, and the other party was permitted to prove that, by the usage of that trade, a thousand meant one hundred dozen, or twelve hundred. In an American case, a man agreed to pay a CUSTOM, OR USAGE. -jy carpenter twelve shillings a day for every man employed by him about a certain building ; the carpenter was permitted to prove that, by the usage of that trade, "a day" meant ten hours' work; and as his men had worked twelve and a half, he was permitted to charge fifteen shillings, or for, one and one-fourth days' work, for every day so spent. In these cases the custom affected the meaning of the words. But it also has the effect of words ; as if a merchant employed a broker to sell his ship, and nothing was said about terms, and the broker did something about it, and the ship was sold, if the broker could prove a universal and well-established custom of that place, that for doing what he did under the employment he was entitled to full commissions, he would have them, as much as if they were expressly promised. Any custom will be regarded by the court, which comes within the reason of the rule that makes a custom a part of the contract. It comes within the reason only when it is so far established, and so well known to the parties, that it must be supposed that their contract was made with reference to it. For this purpose, the custom must be established and not casual, uniform and not varying, general and not personal, and known to all the parties. But the degree in which these characteristics must belong to the custom will depend in each case upon its peculiar circumstances. Let us suppose a contract for the making of an article which has not been made until within a dozen years, and only by a dozen persons. Words are used in this contract of which the meaning is to be ascertained ; and it is proved that these words have been used and understood in reference to this article, always, by all who have ever made it, in one way. Then this custom will be permitted to explain and interpret the words of the parties. But if the article had been made a hundred years or more, in many countries and by multi- tudes of persons, the evidence of this use of these words by a dozen persons in a dozen years would not be sufficient to give to this practice the force of custom. Other facts must be considered ; as, how far the meaning sought to be put on the words by custom varies from their common meaning in the dictionary, or from general use ; and 78 AGREEMENT AND ASSENT. •whether other makers of the article use these words in various senses, or use other words to express the alleged meaning. Because the main question is always this : Can it be said that both parties must have used, or ought to have used, these words in this sense, and that each party had good reason to believe that the other party so used them ? Thus when the brief but violent " Morus multicaulis " (or mulberry) speculation prevailed, a few years ago, a man made a contract to sell and deliver a certain number of the trees " a foot high ; " and the buyer was per- mitted to prove that, by the usage and custom of all who dealt in that article, the length was measured to the top of the ripe wood only, rejecting the green and immature top; and the "foot high" was to be so understood. No custom, however, can be proved or permitted to influence the construction of a contract, or vary the rights of the parties, if the custom itself be illegal. For this would be to permit, or even oblige, parties to break the law, because others had broken it. Nor would the courts sanction a custom which was in itself unreasonable and oppressive. There was a vessel cast ashore on the coast of Virginia, and the master sold the cargo on the spot; and on trial the jury found that he was authorized to do so by the usage there ; but the Supreme Court of Massachu- setts, where the ship and cargo were insured, said that the usage was unreasonable, and they would not allow it. The Supreme Court of Pennsylvania in one case refused to allow a usage, as unreasonable, by which plasterers charged half the size of the windows at the price per square yard agreed on for the plastering of a house. Lastly, no custom, however universal, or old, or known (unless it has actually become a law), has any force whatever, if the parties see fit to exclude and refuse it by words of their contract, or provide that the thing which the custom affects shall be done in a way different from the custom. For a custom can never be set up against either the express agreement or the clear intentions of the parties. I will now give forms for various agreements or contracts : FORMS OF CONTRACTS OR AGREEMENTS. FORMS OF CONTRACTS OR AGREEMENTS. 79 Every agreement should be written, and signed by both parties, and witnessed, where this can be done ; although the law absolutely requires witnesses in very few cases, and in none of mere contract. It is prudent, however, to have them, for it is a rule of law, that things which cannot be proved and things which do not exist are the same in the law. Everything agreed upon should be written out distinctly, and care should be taken to say all that is meant, and just what is meant, and nothing else ; for it is a rule of law, that no oral testimony shall control a written agreement, unless fraud can be proved. Against fraud nothing stands. (6.) 1.— A General Agreement, sufficient for many purposes. MUTUAL AGREEMENT OF TWO. A. B. of {place of residence, and business or profession), and C. D. of {as before), have agreed together, at {place), on {the day should always be named), and do hereby promise and agree to and with each other, as fol- lows: A. B., in consideration of the, promises hereinafter made by C. D. {if there are any such promises), and of {here state any other consideration ■which A. B. has), promises and agrees to and with C. D., ^\!iX{here set forth, as above directed, the whole of what A. B. undertakes to do.) And C. D. in consideration {set forth consideration and promise as before.) Witness our hands, to two copies of this agreement interchangeably. A. B. Signed and Interchanged in Presence of C. D. E. F. G. H. (7.) A General Agreement, as used in the "Western States. Articles of Agreement, Made this day of in the year of our Lord one thousand eight hundred and between party of the first part, and party of the second part, Witnesseth, That the said party of the first part hereby covenants and agrees, that if the party of the second part shall first malte the payments and perform the covenants hereinafter mentioned on part to be made and performed, the said party of the first part will So AGREEMENT AND ASSENT. And the said party of the second part hereby covenants and agrees to pay to said pnrty of the first part the sum of dollars, in the manner following : dollars cash in hand paid, the receipt whereof is hereby acknowledged, and the balance with interest at the rate of per centum per annum, payable annually. And in case of the failure of the said party of the second part to make either of the payments, or perform any of the covenants on part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made by on this contract, and such payments shall be retained by the said party of the first part in full satisfaction and in liquidation of all damages by sustained, and shall have the right to It is mutually agreed that all the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties. In "Witness Whereof, The parties to these presents have hereunto set th«ir hands and seals, the day and year first above written. (Signatures) {Seals) Signed, Sealed, and Delivered in presence of (8.) General Contract for Mechanics' Work. Contract made this day of A. D. i8 by and between of of the first part, and of of the second part, ■Witnesseth., That the party of the first part, for the consideration here- inafter mentioned, covenants and agrees with the party of the second part to perform in a faithful and workmanlike manner the following specified work, viz. : And in addition to the above to become responsible for all materials deliv- ered and receipted for, the work to be commenced and to be completed and delivered free from all mechanic or other liens, on or before the day of . And the party of the second part covenants and agrees with the party of the first part, in consideration of the faithful performance of the above specified work, to pay to the party of the first part the sun) of dollars, as follows : And it is further mutually agreed by and between both parties, that in case of disagreement in reference to the performance of said work, all questions of disagreement shall be referred to and the award of said referees or a majority of them, shall be binding and final on all parties. FORMS OF CONTRACTS OR AGREEMENTS. 8 1 In Witness Wliereof, We hereunto set our hands and seals on the day and year first above written. {Sigiiai2ires.) {Seals.) Executed in Presence of (9.) An Agreement for Purchase and Sale of Lands, in Use in the Middle States. Agreement, Made and concluded the day of A. D. l8 by and between of the State of of the first part, and of the State of of the second part. Whereas, The party of the second part hath agreed to purchase from the party of the first part, either on his own account or for whom it may con- cern, certain land in Township, County, and State of And it is agreed that the party of the second part shall have the right to divide and subdivide said land in such manner, and appropriate to his own use so much thereof as he may see fit, giving and paying to the party of the first part the sum of dollars, on or before the day of A. D. i8 , and reserving to his own use any amount for which the whole or ^ny be sold over the said dollars. And these Articles further Witness, That the party of the first part, for and in consideration of the premises and the sum of lawful money, to him paid by the party of the second part, at and before the execution hereof-, doth covenant, promise, grant, and agree, with the party of the second part, his heirs and assigns, upon sale of said lands being made by the party of the first part, to sufficiently grant, convey, and assure said lands, with the appurtenances, to the said party of the second part, or such person or persons as he may direct ; and in default of the said party of the second part paying the amount hereinbefore specified at the time mentioned, then these articles are to be deemed and considered canceled to all intents and purposes, the same as though they never had been made. In Witness Whereof, The parties hereto have hereunto set their hands and seals the day and year first aforesaid. {Signatures^ (Seals.) Sealed and Delivered in Presence of (10.) An Agreement for Sale of Land, in Use in the "Western States. Articles of Agreement, Made this day of in the year one thousand eight hundred and between of the first part, and of the second part, 6 82 AGREEMENT AND ASSENT. Witnesseth, That the party of the first part, at the request of the party of the second part, and a consideration of the money to be paid, and tlie covenanti; as herein expressed to be performed by the party of the second part (the prompt performance of which payments and covenants being a condition precedent, and time being of the essence of said condition), hereby agree to sell to the said party of the second part, all certain lot and parcel of land, situate in County of and State of , known and designated as follows, viz. : with the privileges and appurtenances thereto belonging. And the said party of the second part, in consideration of the premises, hereby ajrees to pay the party of the first part, his or their executors, administrators, or assigns, in daj's, the sum of dollars, as follows, viz. : with interest at the rate of per cent, per annum from to be paid semi-annually in each year, on the whole sum from time to time remaining unpaid. And also that he will well and faithfully, in due season, pay, or cause to be paid, all ordinary taxes assessed for revenue purposes upon said premises, or any part thereof, subsequent to flie year i8 . And ulso all other assessments which now are, or may be hereafter, charged or assessed upon or against said premises, or any part thereof. But in case the said party of the second part fail to pay any or all such taxes or assess- ments upon said premises or appurtenances, or any part thereof, whenever and as soon as the same shall become due and payable ; and the party of the first part shall pay from time to time, or at any time, any or all such taxes or assessments, or cause the same to be paid, the amount of any and all such payments so made by the party of the first part, with interest thereon from the date of payment, shall immediately thereupon become an additional con- sideration, and payment thereof shall be made by the party of the second part hereto, for the premises herein agreed to be conveyed. And the said party of the first part further covenants and agrees with the said party of the second part, that upon the faithful performance by said party of the second part of undertaking in his behalf, and of the payment of principal and interest of the sum above-mentioned, in the manner speci- fied, he the said party of the first part, shall and will, without delay, well and faithfully execute, acknowledge, and deliver in person, or by attorney duly authorized, to the party of the second part, heirs or assigns, a deed of conveyance of all the right, title, and interest of the party of the first part, of, in and to the above described premises, with the appurtenances, with full covenants of warranty, also of waiver and release of all rights of the said party of the first part, resulting from the laws of this State pertain- ing to the exemption of homesteads. And it is Mutually Covenanted and Agreed, by and between the par- ties hereto, that in case default shall be made in the payments of principal FORMS OF CONTRACTS OR AGREEMENTS. 83 or interest at the time or any of tlie times above specified for tlie payment tliereof, and for days thereafter, tliis agreement, and all the preced- ing provisions hereof, shall be null and void, and no longer binding, at the option of said party of the first part, representatives or assigns ; and all the payments which shall then have been made thereon, or in pursuance hereof, absolutely and forever forfeited to the said parly of the first part ; or at the election of the said party of the first part, representatives and assigns, the covenants and liability of said party of the second part shall continue and remain obligatory upon the said party of the second part, and may be enforced, and the said consideration-money, and every part thereof, with the annual interest as above specified, be collected by proper proceedings in law or equity, from the said party of the second part, heirs, executors, administrators, or assigns. And it is Further Mutually Covenanted and Agreed, by and between the parties hereto, that in case of default in the payment stipulated to be made by the said party of the second part, or any part thereof, and the elec- tion of the party of the first part, representatives or assigns, to consider the foregoing contract of sale at an end, and prior payments for- feited, the said party of the second part, heirs, representatives or assigns, who may have possession, or the right of possession, of said prem- ises at the time of such default, or at any time thereafter, shall be consid- ered, and are hereby agreed and declared to be, in law and equity, the tenant or tenants at 'will of said party of the first part, representatives and assigns, on a rent equal to an interest of ten per cent, per annum on the whole sum of the purchase-money above specified, payable quarter-yearly in advance from the day of such default in payment of principal or interest. And after such default in payment, and election to consider the above con- tract of sale as void, the said party of the first part, representatives and assigns, shall and may have and exercise all the powers, rights, and remedies provided by law or equity to collect such rent, or to remove such tenant or tenants, the same as if the relation of landlord and tenant, hereby declared, were created by an original absolute lease for that purpose, on a special rent, payable quarterly on a tenure at will. And that in such case the said tenant or tenants shall and will pay, or cause to be paid, all taxes, assessments, ordinary and extraordinary, which may be laid or assessed on such premises or any part thereof, during the continuance of such tenancy ; and will not permit or suffer any waste or damage to said premises or the appurtenances, but will keep and deliver up, on the termination of such ten- ancy, the said premises and appurtenances, in as good order and repair (ordinary wear and decay, and unavoidable injury by the elements, excepted) as they were in at the commencement of said tenancy. In Witness "Whereof, The party of the first part and the party of the second part, in own proper person, have hereunto respectively set their hands and seals on the day and year first above written. {Signatures.) {Seals.) Signed, Sealed, and Delivered in Presence of 84 AGREEMENT AND ASSENT. (11.) An Agreement for "Warranty Dead Used in the "Western States. Articles of Agreement, made this day of in the year of our Lord one thousand eight hundred and between party of the first part, and party of the second part, Witnesseth, That said party of the first part hereby covenants and agrees, that if the party of the second part shall first make the payment and perform the covenants hereinafter mentioned on part to be made and performed, the said party of the first part will convey and assure to the party of the second part, in fee simple, cle^ir of all incumbrances whatever, by a good and sufficient warranty deed, the following lot, piece, or parcel of ground, viz. : And the said party of the second part hereby covenants and agrees to pay to said party of the first part, the sum of dollars, in the manner following : dollars, cash in hand paid, the receipt whereof is hereby acknowledged, and the balance with interest at the rate of per centum per annum, payable annually, on the whole sum remaining from time to time unpaid, and to pay all taxes, assessments, or impositions that may be legally levied or imposed upon said land, subsequent to the year i8 . And in case of the failure of the said party of the second part to make either of the payments, or per- form any of the covenants on part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made by on this contract, and such payments shall be retained by the said party lOf the first part in full satisfaction and in liquidation of all damages by sustained, and shall have the right to re-enter and take possession of the premises aforesaid. It is mutually agreed that all the covenants and agreements herein con- tained shall extend to and be obligatory upon the heirs, executors, adminis- trators and assigns of the respective parties. In Witness Whereof, The parties to these presents have hereunto set their hands and seals the day and year first above written. (Signatures.) {Seals.) Signed, Sealed, and Delivered in Presence of (12.) A Contract to convey Real Estate, in Use in the Middle States. This Article of Agreement, Made and entered into the day of one thousand eight hundred and between of the first part, and of the second part, FORMS OF CONTRACTS OR AGREEMENTS. 85 "Witnesseth, as follows : The said party of the first part hereby agrees to sell unto the said party of the second part all that parcel of land situated, botmded, and described as follows. That is to say for the sura of to be paid by the said party of the second part, in manner and at the times hereinafter mentioned and covenanted, on the part of the said party of the second part : And the said party of the first part further agrees, that on the day of on receiving from the said party of the second part the sum of the said party of the first part shall and will, at at own proper cost and expense, execute and dehvcr to the said party of the second part, or to assigns, a proper deed of conveyance, duly acknowledged, for the conveying and assuring to them the fee .simple of the said premises, free from all incumbrances, which deed of conveyance shall contain a general warranty, and the usual full covenants. And the said party of the second part hereby agrees to purchase of the said party of the first part tlie premises above mentioned, at and for the price and sum above mentioned, and to pay to the said party of the first part the purchase-money therefor, in manner and at the times following, to wit : And it is further agreed by and between the parties to these presents, that the said party of the firsjt part shall have and retain the possession of said premises, and be entitled to the rents and profits thereof until the day of when full possession of the same shall be delivered to the said party of the second part, by the said party of the first part : And it is understood and agreed, that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators, and assigns of the respective parties. And it is further hereby agreed, that in case the said party of the first part shall fail or refuse to execute and deliver a proper deed of conveyance in manner and at the time and place above specified for that purpose, provided the party of the second part shall be ready to fulfill and perform the cove- nants then to be fulfilled on part ; or in case the said party of the second part shall fail or refuse to pay the said sum of at the time and place as above agreed upon, provided the party of the first part shall be ready to dehver such deed of conveyance, as aforesaid ; then the party so failing shall and will pay to the other party, or assigns, the sum of dollars, which sura is hereby declared, fixed, and agreed Z6 AGREEMENT AND ASSENT. upon, as the liquidated amount of damages to be paid by the party so failing as aforesaid, for non-performance. {Signatures.) {Seals.) Signed, Sealed, and Delivered in Presence of (13.) An Agreement for the Purchase of an Estate, in Use in New England. Articles of Agreement, Had, made, concluded, and agreed upon this day of A.D. between of of the one part, and of of the otlier part. First, the said {seller) in consideration of the sum of to him paid by the said {buyer) at or before the sealing and delivery of these presents, and of the further sum of to be paid as hereinafter is mentioned, doth hereby for himself, his heirs, executors, and administrators, and every of them, covenant, promise, and agree, to and with the said his heirs, executors, and adminis- trators, and every cf them, by these presents, that he the said his heirs and assigns (and all and every other person and persons whatsoever, claiming or to claim any right, title, or interest under him, or any other person or persons whatsoever, of, in, or to the lands and premises hereinafter mentioned) shall and will, at the proper costs and charges of the said his heirs and assigns (except fees to counsel), on or before the day of next ensuing, by such con- veyances, assurances, ways and means in the law, as he the said his heirs and assigns, or his or their counsel, shall reasonably devise, advise, or require, well and sufficiently grant, sell, release, convey, and assure to the said and his heirs, or to whom he or they shall appoint or direct, all that situate now in the tenure or occupation of or his assigns, with covenants to be therein contained, that the said premises, at the time of such conveyance, are free from all incum- brances and demands whatsoever (except ) and all other usual and reasonable covenants. In consideration whereof, the said for himself, his heirs, executors, administrators, and assigns, doth hereby covenant, promise, and agree, to and with the said his heirs, executors, and administrators, by these presents, that he the said his heirs, executors, or administrators, or some of them, shall and will, well and truly, pay, or cause to be paid, unto the said his heirs, executors, or administrators, the aforesaid sum of at the time of executing the said conveyances. And for the true performance of all and every the covenants and agreements aforesaid, each of the said parties to these presents doth hereby bind himself, his heirs, executors, and administrators to the other of them, his heirs, executors, administrators, and assigns in the penal sum of In Witness Whereof, The said parties to these presents have here- unto set their hands and seals the day and year first above written. {Signatures) {Seals) Signed, Sealed, and Delivered in Presence of FORMS OF CONTRACTS OR AGREEMENTS. 8/ An agreement for the sale of lands should always state the covenants, whether of general or special warranty, which it is intended that the contemplated conveyance shall contain. Covenants, Provisos, and Agreements, which may be Inserted in the Preceding Form. 1. Covenant that the vendor, before the purchase is completed, shall not commit waste, or grant any new leases. And also that the said {the seller) shall not nor will, in the mean time, cut down any timber or trees, or commit any waste or spoil whatsoever, in or upon the premises, or any part thereof, nor shall or will grant any new leases of the premises, or any part thereof, without the privity or consent of the said {the buyer) or his heirs or assigns. 2. A ttother coveiiant for the payment of the purchase-money . And the said {the buyer) doth hereby covenant and agree to and with the said {the seller) his heirs, executors, and administrators, that upon sealing and executing such conveyance and assurance of the said unto him and them as aforesaid, according to the true intent of these presents, he the said his heirs, executors, or administrators, shall and will pay, or cause to be paid, unto the said his heirs, executors, or adminis- trators, the said sum of in full for the purchase of the said premises. {Or there may be an agreetnent to retaifi.part of the purchase-money to pay off an incumbrance, as follows : And it is agreed between the said parties that the said shall or may retain out of the said purchase-money the sum of for the purpose of paying off the sum of secured by a mortgage on the said premises, given by the said to bearing date when the said sum shall become due by virtue of the said mortgage. 3. This agreement may be inserted : And it is agreed, that if the counsel of the said shall not approve of the title of the said to the said premises, this agreement shall be void. 4. This proviso may be inserted: Provided always, and it is hereby mutually covenanted and agreed, by and between the parties to these presents, for themselves and their respective heirs, in manner as follows, viz : That in case the counsel of the said {the bicyer) shall not approve of the title of him the said ( the seller) to the said or in case {the buyer) on his view thereof (he not having ever viewed the same) will not proceed in the purchase thereof, and shall and do, within one month next after the date hereof, give notice, in writing, to the said (or to of ) that he will not purchase the said then and in either of the cases, these presents shall be absolutely 88 AGREEMENT AND ASSENT. void ; and that then he the said {the seller) his heirs, executors, or administrators, shall and will, within six months now next ensuing, well and truly repay, or cause to be repaid unto the said ( the buyer) his heirs, executors, administrators, or assigns, the said sum of so by him now paid as aforesaid, together with legal interest for the same, from henceforth to be computed until payment thereof. 5. A provision in articles of purchase, in case of the delay or default of either party. that if by reason of any delay, neglect, or default, by or on the part of the said {the purchaser) or his heirs, or his or their counsel or agents, the said conveyances of the said estates and premises shall not be ready and tendered to the said {the vendor) or his heirs, to be executed, on or before the said day of then and in such case, the said his shall and will pay and allow to the said his interest for the said sum of at the rate of to be computed from the day of until the said (the principal stun) shall be paid as aforesaid ; but if, by reason of any delay, neglect or default, by or on the part of the said or any claiming under him, such conveyances as aforesaid shall not be executed on or before the said day of then and in such case, no such interest as aforesaid shall be paid or allowed during the time of such delay of the said 6. An agreement that if a good title, &=€., cannot be made on, S^c, the premises shall stand as security for the money paid down, b'c. It is hereby further agreed and declared by and between all the said parties to these presents, and particularly the said {the vendors) do hereby agree and declare, that in case they cannot make out a good title to, and execute and perfect such conveyances and assurances of the premises as aforesaid on or before the day of now next ensuing, then the said and every part thereof, shall remain and be a security to the said (M-•«/? ox order o^ somebody to pay money. A note is a promise to pay. See chapter on notes and bills. CHAPTER XV. BECSIPTS AND EELEASES. A RECEIPT is only an acknowledgment that a sum of money has been paid. It may be in one word, as when, under a bill of parcels, the seller writes the word "paid," and signs it. More commonly the words are, "Received Payment." Formerly it was usual to add the words " Errors Excepted." Then it grew customary to write the initial letters " E. E." instead of the words ; but all this is unnecessary. If there be an error in the receipt, or in the paper receipted, the law permits the party injured by it to explain and correct the error, although there be no express reservation or exception of errors. Receipts are of all degrees of fulness, from the single word "paid," to those which relate the particulars for which the receipt is given, and the manner in which the money was paid, or the thing delivered. I give the following forms : (45.) (Date) This day I have received from dollars. {Signature.) (46.) {Date) This day I have received from I . dollars, on account of {Signature.) (47.) {Date) This day the following {papers, or other articles, enumerating and describing them) were delivered to me by , {add, on account of, or in execution of, the promise or bargain, describing it j and, if they are delivered for any particular purpose, describe that), and I hereby acknowl- edge the receipt of them. {Signature^ FORMS OF RE LEA SES. 1 6 5 Every receipt is open to evidence, not only to explain it, but to contradict it. Herein releases differ from receipts. A release gives up some right or claim which the releasor had against the releasee. It is in the nature of a contract, and therefore cannot be controlled or contradicted by evidence, unless on the ground of fraud. But if its words are ambiguous, or may have either of two or more meanings, evidence is receivable to determine the meaning. Like every other contract, it requires a consideration, and is of no force without one. But here comes in the rule of law as to a seal. The general rule is, as has been stated before, a seal implies, or is the same as, the assertion of a consideration ; and therefore it is always customary to put a seal to a release. But a release, even with a seal, if it can be shown to have been given without any consideration whatever, can be set aside. It is always best to state in the release itself that it was given for a consideration, and what the consideration is. A release properly drawn, and duly signed and sealed, is a complete defence to an action grounded on any of the debts or claims released. The following forms are for releases of various kinds : (48.) A General Release. Know all Men by these Presents, That I, (the name of the releaser) of for and in consideration of the sum of , to me paid by of , have remised, released, and forever discharged, and by these presents do, for me, my heirs, executors, and administrators, remise, release, and forever discharge the said his heirs, executors, and administrators, of and from all and all manner of action and actions, cause and causes ot action, suits, debts, dues, sum and sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, damages, judgments, extents, executions, claims, and demands whatsoever, in law and inequity, which against the said I ever had, now have, or which I, my executors or administrators hereafter can, shall, or may have, for, upon, or by reason of, any matter, cause, or thing whatsoever, from the beginning of the world to the day of the date of these presents. In 'Witness Wliereof, &c. l66 RECEIPTS AND RELEASES. (49.) A Mutual General Release by Indenture. TMs Indenture, Made between of and of , witnessetb, that the said doth, by these presents remise, release, and forever quit claim, untio the said , all and all manner of actions, (as before ); and this indenture further witnessetli, that the said by these presents, doth remise, release, and forever quit claim, unto the said all and all manner of actions {as before). In Witness "Whereof, &c. (50.) A Release from Creditors to a Debtor, under a Composition. To all Persons to whom these Presents may come, we who have here- unto set our hands and seals, creditors of of , send greeting. Whereas the said is indebted to us his said creditors, in several sums of money, which he is not able fully to satisfy and discharge ; we therefore have agreed, and do hereby agree, to accept of the sum of in full payment and satisfaction of all the debts, owing to us respectively at the date hereof, by and from the said which is paid by or for the said (the name of the debtor) to {the fiames of the persons to whom the money is to be paid for the creditors releasing)* and assignees by virtue of a commission, of bankrupt awarded against the said , for the use of, and to the intent that the same may be shared and divided amongst us his said creditors, seeking relief nnder the said commission, in proportion and according to the debts to us severally due and owing : Now therefore know ye, that for the consideration aforesaid, each of us, the said creditors who have hereunto set our hands and seals, for him and herself, his and her heirs, executors, and copartners, doth by these presents, remise, release, and forever discbarge the said his heirs, executors, and administrators, of and from our said several debts, and all and all manner of action and actions which against the said , each and every of us the said creditors now hath, or which each and every of our heirs, executors, or administrators, respectively, hereafter may, can, or ought to have, claim, or demand for, upon, or by reason of the said several and respective debts to us severally due and owing, or for or by reason of any other matter, cause, or thing whatsoever from the beginning of the world. In Witness Whereof, &c. (51.) A Release of all Legacies. Know all Men by these Presents, That I of widow, have remised, released, and forever quit-claimed, * The 'VJords, following in Italic may be omitted according to circumstances. FORMS OF RELEASES. 167 f and by these presents do for me unto of , gentleman, executor of the last will and testament of late of , deceased, and to the heirs, executors, and administrators of the said , all legacies, gifts, bequests, sum and sums of money and demands whatsoever, bequeathed and given unto me the said , in and by the last will and testament of , deceased, and all manner of actions and suits, sum and sums of money, debts, duties, reckonings, accounts, and demands whatsoever, which I the said ever had, now have, or that I, my executors or administrators, can or may, at any time or times hereafter, have, challenge, or demand against the said his executors, administrators, or assigns, for or by reason of any mat- ter, cause, or thing whatsoever, from the beginning of the world until the day of the date hereof. In. Witness Whereof, etc. (52.) A Release of a Bond, it being Lost. To all to wlioin these Presents may come, {name of releaser) sendeth greeting. Whereas by his bond or obligation, bearing date {recite the bond), as by the said bond or obligation, and the condition thereof may appear : And whereas the sura of mentioned in the said bond, with all the interest for the same, is paid and satisfied unto me the said , in full discharge for the said bond or oHigation : And whereas the said bond or obligation is lost, or at present mislaid, so that it cannot be found to be delivered up to the said , to be cancelled : Now know ye, that I the said for the consideration aforesaid, have remised, released, and quitclaimed, and by these presents do, for me, my executors and administrators, remise unto the said his heirs, executors, and administrators, as well the said recited bond or obligation, as all such sums of money as therein are mentioned to be due and payable, unto me the said my executors, administrators, or assigns ; and also all actions, suits, cause and causes of action, accounts, debts, reck- onings, sums of money, judgments, executions, and demands whatsoever, which I, the said ever had, now have, or that I, my executors, administrators, or assigns, or any of us, can or may have, for or against the said his executors or administrators, for, or by reason of, the said recited bond or obligation, or any other matter, cause, or thing whatsoever, concerning the same, from the beginning of the world to the day of the date hereof. In Witness Whereof, I the said have hereunto set my hand and seal this day of {Signatures.) {Seals.) In Presence of l68 RECEIPTS AND RELEASES. ( The following covenant may be inserted before " In wiiness.") And I, the said for me my executors , do covenant , to and with the said , his that if I the said , my executors, , or any of us, at any time hereafter, do find or can obtain the said recited bond or obligation, then I, the said , my executors , or some of us, shall and will, within two months next after the said obligation shall be found as aforesaid, deliver, or cause to be delivered, the said bond or obligation, unto the said his (53.) A Release of a Judgment. This Indenture, Made the day of in the year one thousand eight hundred and between of the second part, "Whereas, Judgment was rendered on the day of in the year one thousand eight hundred and in an action in the between plaintiff and defendant in favor of the said against the said for the sum of as appears by the Now this Indenture Witnesseth, That the said part of the first part, in consideration of the sum of to duly paid at the time of the sealing and dehvery of these presents, the receipt whereof is hereby acknowledged, ha granted, released, discharged and set over, and by these presents do grant, release, discharge and set over, unto the said part of the second part, the following described premises, to wit : Together with the hereditaments and appurtenances thereto belonging ; and all the right, title and interest of the said part of the first part, of, in and to the same to the intent that the lands hereby conveyed may be released and discharged from the said above-mentioned judgment, and from all lien or incumbrance that has attached to the same, by reason of the recovery of the said judgment, as free and clear in all respects as though said judg- ment had not been rendered. To have and to hold, the lands and premises hereby released and conveyed, to the said part of the second part heirs and assigns, to their only proper use, benefit and behoof forever, free, clear and discharged of and from all lien and claim, under and by virtue of the judgment aforesaid. In Witness Whereof, The said part of the first part ha hereunto set hand and seal the day and year first above written. (Si^naiures.) (Seals.) In Presence of FORMS OF RELEASES. l6g (54.) A Release of a Condition. Know all Men by these Presents, That I, of , for divers good considerations me hereunto moving, have remised, released, and quit-claimed, and by these presents, for me, my executors, administrators, and assigns, do unto of , his heirs, executors, administrators, and assigns, as well one proviso or condition, and all and every the sum and sums of money, specified in the same proviso or condition, contained or comprised in one pair of indentures of bearing date i made between me, the said o£ the one part, and the said of the other part, and also all and all manner of actions and suits, cause and causes of actions and suits, for or concerning the said proviso or condition. In Witness "Wliereof, I the said have hereunto set my hand and seal this day of {Signature) [Seal.) In Presence of (55.) A Release of a Covenant contained in an Indenture of Lease. To all Persons to whom these Presents may come, {name of releaser) sendeth greeting. Whereas in and by an indenture of lease, bearing date made between , of the one part, and the said of the other part, there is contained a covenant in these words following, viz. {recite the covenant verbatim, as therein contained) whereunto relation being had, it doth at large appear : Now know ye, that I, the said , for divers good causes and considerations, me hereunto moving, have remised, released, and quit-claimed, and by these presents for me do unto the said , his the said covenant, grant, clause, agreement, and article, before rehearsed or recited, and all and every other matter, thing and things specified, declared, and contained in the same covenant, clause, and agreement, and all the benefit, profit, advan- tage, and commodity, that by any manner of means, may or might arise, grow, come, or happen to me the said , for or by reason of the same covenant, clause, article, or agreement, or any word, sentence, matter, thing, or things therein contained, so that the said his executors and assigns, and every of them, from henceforth forever, shall be fully acquitted, released, and discharged against me the said my executors and administrators, and every of us, of, from, and for the said covenant, grant, clause, article, and agreement before rehearsed or recited, and of, from, and for, everything and things, touching the same (but this present release shall not in anywise extend to any othef covenant, clause, or article in the said indenture contained). 170 RECEIPTS AND RELEASES. In Witness Whereof, I the said have hereunto set my hand and seal this day of {Signature.) {Seal.) In Presence of (56.) A Release in Extinguishment of a Power. To all Persons to -whom these Presents may come, Now know ye, that 1, the said , pursuant to the said agreement, and for divers good causes and considerations me hereunto moving, have released, extinguished, and discharged, and by these presents do fully and absolutely release, extinguish, and discharge, the said recited powerfor raising the said sum of as aforesaid, and all the lands therein comprised, or subject thereto, so that I, the said shall not, nor will, at any time or times hereafter, raise the same, or any part thereof, or hereafter charge the said lands with the payment thereof, or any part thereof. In Witness Whereof, I the said have hereunto set my hand and seal, this day of {Signature.) {Seal.) In Presence of (57.) A Release from a Lessor to a Lessee (upon his surrendering his Lease) from the Covenants therein. To all Persons to whom these Presents may come, {name of releaser) sends greeting : Whereas the said by his indenture of lease, bearing date , did demise unto a messuage in at a certain rent, for a cer- tain term of years, of which about years are yet to come and undetermined, in which said lease are contained covenants for repairing the said premises, and other covenants, on the part of the said to be performed. And whereas, by agreement between the said and the said hath delivered up the said recited lease, and surrendered the same, and all his interestand term in and to the saidhouse and premises : Now therefore know ye, that the said , in consideration thereof, doth hereby, for himself, his heirs, executors, and administrators, remise, release, and forever discharge the said his executors and admin- istrators, of and from all and every the covenants and agreements, in the said recited lease contained, by and on the part and behalf of the said his to be done and performed, and from all actions, suits, costs, charges, payments, damages, claims, and demands whatsoever, in law and equity, for or concerning the same in any manner of wise. In Witness Whereof, I the said have hereunto set my hand and seal this day of {Signature.) {Seal.) In Presence of FORMS OF RELEASES. 17I (58.) A General Release of Dower, To all to whom these Presents shall come, {name of releaser) send greeting : Know ye, that the said the party of the first part to these presents, for and in consideration of the sum of lawful money of the United States, to her in hand paid at or before the ensealing and delivery of these presents, by of the second part, the receipt whereof is hereby acknowledged, hath granted, remised, released, and forever quit-claimed, and by these presents doth grant, remise, release, and forever quit-claim, unto the said party of the second part, heirs and assigns forever, all the dower and thirds, right and title of dower and thirds, and all other right, title, interest, property, claim and demand whatsoever, in law and equity, of her, the said party of the first part, of, in, and to {here describe the estate the dower in which is released) so that she, the said party of the first part, her heirs, executors, administrators or assigns, nor any other person or persons, for her, them, or any of them, shall not have, claim, challenge, or demand, or pretend to have, claim, challenge, or demand, any dower or thirds, or any other right, title, claim, or demand whatsoever, of, in, or to the same, or any part or parcel thereof, in whosesoever hands, seisin, or possession, the same may or can be, and thereof and therefrom shall be utterly barred and excluded forever by these presents. In Witness Whereof, The said party of the first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and {Sig7iatzire.) {Seal.) In Presence of (59.) A Release of Dower to the Heir. Know all Men by these Presents, That I relict of late , as well for and in consideration of to me paid, at or before , by my son , the receipt whereof I do hereby acknowledge, and for the love and affection which I have to my said son, have granted, remised, released, and forever quit-claimed, and by these presents do unto the said his heirs and assigns forever, all the dower and thirds, right and title of dower and thirds, and all other right, title, inter- est, property claim, and demand whatsoever, in law and in equity, of me the said of, in, and to {a descriptio?i of the parcel of land in which dower is released) so that neither I, the said my heirs, executors, or administrators, nor any other person or persons for me, them, or any of them, shall have, claim, challenge, or demand, or pretend to have any dower or thirds, or any other right to claim or demand of, in, or to the said premises, but thereof and therefrom, shall be utterly debarred and excluded, forever, by these presents. i;2 RECEIPTS AND RELEASES. In Witness "Whereof, The said party of the first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and {Signature.) {Seal.) In Presence of (60.) A Release of Dower in Consideration of an Annuity given by Will. To all Persons to whom these Presents may come, {name of releaser) widow, relict and residuary legatee of late of , deceased, sendeth greeting. Whereas the said , in and by his last will and testament, duly signed, sealed, published, and declared in my pres- ence and with my approbation, bearing date , did settle and secure unto and upon me the said . , an annuij^of to be paid unto me half-yearly, by equal payments, in lieu and full satisfaction of the dower or thirds at common law, which I might otherwise have, claim, or be entitled unto, out of all and every the lands, tenements, and hereditaments whatsoever, of my said late husband, deceased, or of, in, to, or out of the reversion or remainder, rents, issues, and profits thereof : Now know ye, that 1 the said for and in consideration of the said annuity so secured to me as aforesaid, and in pursuance and part performance of the said last will and testament of my said late husband, do hereby declare myself fully satisfied and con- tented therewith, and do hereby remise, release, and forever quit-claim unto of , and of , trustees, appointed in and by the said last will and testament of my said late husband (in their actual possession and seisin now being) their executors all and all manner of dower in and to the said premises, but thereof and therefrom, shall be utterly debarred and excluded, forever, by these presents. In Witness Whereof, The said party of the first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and {Signature.) {Seal.) In Presence of (61.) A Release of Dower where the Husband of the "Widow joins in the Deed. MSS. Know all Men by these Presents, That {name of husband) of and {name of wife) his wife, in her right, in consideration of paid them by of the receipt whereof they hereby acknowledge, have granted, remised, released, and forever quit-claimed, and by these presents do unto the said his heirs and assigns forever, all the right v/hich the said hath to dower or thirds, of and in {here FORMS OF RELEASES. 1 73 describe the estate) whereof her late husband («a;«« of former husband) late died seized, situate, , which she claims as of the endowment of the said deceased, and all the right, title, interest, and claim whatsoever, which the said and have, or either of them hath, or by law might have, of, in, and to the same : To have and to hold the same to the said and his heirs and assigns forever; and the said and for themselves, their heirs, executors, and administrators, do hereby covenant with the said and his heirs and assigns, that he and they shall henceforth forever, have and quietly enjoy the released premises, without any claim or demand had or made, or to be had or made by them, or any persons, claiming, or who may claim the same or any part thereof, by, from, or under them or their heirs. In Witness 'Whereof, The said party of the first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and {Signature) {Seal.) In Presence of (62.) ' A Release of a Trust. —To all to whom these Presents may come, {name of releaser) sendeth greeting. Whereas, by indenture bearing date , made between {here recite the deed) in which said indenture the said doth hereby declare, that his name was only used in trust, for the benefit and behoof of of : Now know ye, that I, the said , in discharge of the trust reposed in me, at the request of the said , have remised, released, and surrendered, assigned, and set over, and by these presents, for me, my executors and administrators, do freely and absolutely remise, unto the said his executors all the estate, right, title, interest, use, benefit, privilege, and demand what- soever, which 1 the said have, or may have or claim, of, or to the said premises, or of and in any sum of money, or other matter or thing whatsoever, in the said indenture contained, mentioned, and expressed, so that neither I the said my executors or administrators, or any of us, at any time hereafter, shall or will ask, claim, challenge, or demand any interest or other thing, in any manner whatsoever, by reason or means of the said indenture, or any covenant therein contained, but thereof and therefrom, and from all actions, suits, and demands, which I, my executors, administrators, or assigns, may have concerning the same, shall be utterly excluded and forever debarred, by these presents. In Witness Whereof, The said party of the first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and {Signatured) {Seal.) In Presence of 174 RECEIPTS AND RELEASES. (63.) A Release of Right to Lands. Know all Men by these Presents, That I {name of releaser) of , in consideration of to me paid by {name of releasee) the receipt , have remised, released, and forever quit-claimed, and by these presents do unto the said and his heirs, all the estate, right, title, interest, use, trust, claim, and demand whatsoever, both at law and in equity, which I, the said have, of, in, to, or out of, all and singular the following described parcel of land {hej-e describe the land) so that neither I the said , my heirs or assigns, or any other person or persons in trust for me or them, or in my or their name or names, or in the name, right, or stead of any of them, shall or will, can or may, by any ways or means whatsoever, hereafter have, claim, challenge, or demand, any right, title, or interest, property, claim, and demand, of, in, to, or out of the same , or any of them, or any part thereof, but that I the said , my heirs, and assigns, and every of them, from all estate, right, title, interest, property, claim, and demand, of, in, to, or out of the said or any of them, or any part thereof, are, is, and shall be, by these presents forever excluded and debarred. In "Witness Whereof, The said party of the first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and {Signature) {Seal.) In Presence of • (64.) A Release between two Traders on Settling Accounts. Whereas sundry accounts, current and otherwise, and divers dealings in trade have been subsisting for a long time past between of trader, and of trader, which said accounts and dealings, the said and have balanced and adjusted, whereby it appears that nothing remains due from the one to the other; and whereas, therefore, to prevent any future disputes concerning the said accounts and dealings, and to con- firm the said adjustment, the said and have mutually agreed to give reciprocal releases from each other. Now know all men by these presents, that the said {one of the parties) (for the consid- eration abovesaid, and to prevent all future disputes) for himself, his execu- tors, and administrators, doth remise, release, and forever quit-claim unto the said {the other party) his all and all manner of action and actions, cause and causes of action, suits, debts, dues, sum and sums of money, accounts, reckonings, bonds, specialties, covenants, con- tracts, controversies, agreements, promises, variances, damages, extents, executions, claims and demands whatsoever, both at law and in equity, THE PURPOSE OF SUCH PAPERS. 175 which against the said his the said now hath or ever had, on account of their said mutual deahngs, or for or by- reason of any other cause, matter, or thing whatsoever, from the beginning of the world to the day o£ the date of these presents. And the said (the other party) (for the consideration abovesaid, and to prevent all future disputes) for himself, his executors, and administrators, doth remise, release, and forever quit-claim unto the said {the other party), his all and all manner of action and actions, cause and causes of action, suits, debts, dues, sum and sums of money, accounts, reckonings, bonds, specialties, covenants, contracts, controversies, agreements, prom- ises, damages, extents, executions, claims, and demands whatsoever, bodi at law and in equity, which against the said his the said now hath or ever had, on account of their said mutual dealings, or for or by reason of any other cause, matter, or thing whatso- ever, from the beginning of the world to the day of the date of these presents. In Witness Whereof, we have hereunto set our hands and seals, this day of in the year {Signatures.) {Seals) In Presence of CHAPTER XVI. NOTES OF HAND AND BILLS OF EXCHANGE, DRAFTS. AND CHECKS. SECTION I. THE PURPOSE OF, AND THE PARTIES TO, SUCH PAPERS. These instruments are usually negotiable. By negotiable paper is meant evidence of debt which may be transferred by indorsement or delivery, so that the transferee or holder may sue the same in his own name, and as if it had been made to him originally ; or, in other words, it means paper, that is, bills of exchange or promissory notes, or drafts, or checks, payable to the order of a payee, or to bearer. The rules of law on the subject of negotiable paper are more exact and technical than those of any other department of Mercantile Law. They reach, on many points, an extreme nicety, which makes it difficult to express them intelligibly to 176 NOTES OF HAND, BILLS OF EXCHANGE, ETC. persons who do not already possess some familiarity with the subject. All difficulty of this kind could have been easily avoided by me by omitting any notice of these nice points. But it was thought better to mention them, one and all, for these are the things an intelligent man of business should know : and although the rules stated, especially those in reference to presentment, demand, notice, and some other subjects, may seem to be intricate and difficult, they require, it is believed, only careful consideration to be fully understood. Where and when bills of exchange were invented is not cer- tainly known. They were not used by any ancient nations, but have been employed and recognized by most commercial nations for some centuries. A still more recent invention is the promissory negotiable note, which, in this country, for inland and domestic purposes, has taken the place of the bill of exchange very generally. Besides these two, bills of lading, and some other documents, have a kind of negotiability, but it is quite imperfect. The .utility of bills and notes in commerce, arises from the fact that they represent money, which is the representative of the market value of everything ; and many of the peculiar rules respecting negotiable paper are derived from this representation, and intended to made it adequate and effectual. A negotiable bill of exchange is a written order whereby A orders B to pay to C or his oi'der, or to bearer, a sum of money absolutely and at a certain time. (65.) Common Form of a Bill of Exchange. $ New York, January , 18 . days (or months) after sight, (or At sight,) pay to the order of C dollars. Value received, and charge the same to account of (Signed)^ To B A is the Drawer, B the Drawee, and C the Payee. If the bill is presented to B, and he agrees to obey the order, he "accepts" the bill, and this he does in a mercantile way by writing the word "Accepted" across the face of the bill, and COMMON FORMS OF PliOMISSORY NOTES. 177 also writing his name below this word ; then the Drawee becomes the Acceptor. If C, the payee, chooses to transfer the paper and all his rights under it to some other person, he may do this by writing his name on (usually across) the back ; this is called Indorsement, and C then becomes an Indorser. The person to whom C thus transfers the bill is an Indorsee. The indorsee may again transfer the bill by writing his name below that of the former Indorser, and the Indorsee then becomes the second Indorser ; and this process may go on indefinitely. If the added names cover all the back of the note, a piece may be wafered on to receive more. In France, this added piece is called " allonge y and this word is used in some law-books, but not by our merchants. Promissory notes of hand are written in many ways, which, however, differ only in the different words in which they express the same thing. We will first give the full Form of a technically accurate note, and afterwards of the more usual Forms : j County of ss. On the day of one thousand eight hundred and before me came to be the individuals described in, and who executed the above certificate, and they severally acknowledged that they executed the same. County of ss. the general partner named in the above certificate, being duly sworn, doth depose and say, that the sum specified in the said certificate to have been contributed by the special partner to the common stock has been actually and in good faith paid in cash. Sworn this day of 18 before me, In some of the States, the oath should be made by the general partner ; and it would always be safe for all the partners, general and special, to take the oath, and be included in the certificate. 262 AKBITMA TWN. CHAPTER XIX. AEBITRATION. SECTION I. OF THE SUBMISSION AND AWARD. [By the Submission (or reference) is meant tlie submission of the question or questions to arbitrators.] The law favors arbitration in many respects as a peaceable and inexpensive mode of settling difficulties. Parties may agree to refer a question by an oral agreement, or by a written agreement. The form is not essential. But it is always best to reduce the agreement to writing, and to express it carefully. But parties may, in many of our States, go before a magistrate and agree to refer in the manner pointed out by the statute. In all of them a case may be taken out of court and submitted to referees under an order of court. The first essential of an award, without which it has no force whatever, is, that it be conformable to the terms of the submission. The authority given to the arbitrators should not be exceeded ; and the precise question submitted to them, and neither more nor less, should be answered. Neither can the award affect strangers (or those who are not parties to it) ; and, if one part of it is that a stranger shall do some act, it is not only of no force as to the stranger, but of no force as to the parties if this unauthorized part of the award cannot be taken away without affecting the rest of the award. Nor can it require that one of the parties should make a payment, or do any similar act, to a stranger. But if the stranger is mentioned in an award only as agent of one of the parties, which he actually is or as trustee, or as in any way paying for, or receiving for, one of the parties, this does not invalidate the award. And in favor of awards, it has been said that this will be supposed, where the contrary is not indicated. If the award embrace matters not included in the submis. sion, it is fatal. If, however, the portion of the award which SUBMJSSION AND A WARD. 263 exceeds the submission can be separated from the rest without affecting the merits of the award, it may be rejected, and the rest will stand ; otherwise the whole is void. If the submis- sion specify the particulars to which it refers, or if, after general words, it make specific exceptions, its words must be strictly followed. If these words are very general, they will be construed liberally, but yet without extending them beyond their fair meaning. On the other hand, all questions submitted must be decided, unless the submission provides otherwise ; and either party may object to an award, that it omits the decision of some question submitted; but the objection is invalid if it be shown that the party objecting himself withheld that question from the arbitrators. Nor is it necessary that the award embrace all the topics which might be considered within the terms of a general submission. It is enough if it pass upon those ques- tions brought before the arbitrators, and they are so far dis- tinct and independent that the omission of others leaves no uncertainty in the award. If the award does not embrace all of the matters within the submission which v/ere brought to the notice of the arbitrators, it is altogether void. In the next place, an award must be certain ; that is, it must be so expressed that no reasonable doubt can be entertained as to the meaning of the arbitrators, the effect of the award, or the rights and duties of the parties under it. For the very purpose of the submission, and the end for which the law favors arbitration, is the final settlement of all questions and disputes ; and this is inconsistent with uncertainty. In the next place, the award must \>& possible ; for an award requiring that to be done which cannot be done is senseless and useless. But the impossibility which vitiates an award is one which belongs to the nature of the thing, and not to the acci- dental disability of the party at the time. Thus, if he be ordered to pay money on a day that is past, this is void ; so if he be required to give up a deed which he neither has nor may expect to have ; but if he be directed to pay money, the award is good, although he has no money, for it creates a valid debt against him. Nor can a party avoid an award on the ground of 264 ARBITRATION. an impossibility created by himself, after the award, or indeed beforehand, if he created it for the purpose of evading an expected award. This impossibility may be actual, or it may be that created by law ; for an award which requires that a party should do what the law forbids him to do is void, either in the whole, or else for so much as is thus against the law, if that illegal part can be severed from the rest. An award must be reasonable ; if it be of things in them- selves of no value or advantage to the parties, or out of all proportion to the justice and requirements of the case, or if it undertake to determine for the parties what they should deter- mine for themselves, as that the parties should intermarry, it is void. Lastly, the award must ht. final and conclusive. This neces- sity springs also from the very purpose for which the law favors arbitration, namely, the settlement and closing of disputes. It is not a valid objection to an award, that it is upon a condition, if the condition be clear and certain, consistent with the rest of the award, in itself reasonable, and such that there could be no doubt v/hether it were performed or not, or what were the rights or obligations dependent upon it. An award may be open to any or all of these objections in part, without being necessarily void in the whole. So much of it as is thus faulty is void ; but if this can be severed dis- tinctly from the residue, leaving a substantial, definite, and unobjectionable award behind, this may be done, and the award then will take effect. It is therefore void in the whole because bad in part, only where this part cannot be severed from the residue ; or where, if it be severed and amended, leaving the residue in force, one of the parties will be held to an obligation imposed upon him, but deprived of the advantage or recompense which it was intended that he should have. Gen- erally, in the construction of awards, they are favored and enforced, wherever this can properly be done. If the submission be in the most general terms, and the award equally so, covering " all demands and questions " between the parties, either party may still show that a particular demand SUBMISSION AND AWARD. 265 either did not exist, or was not known to exist, when the sub- mission was entered into, or that it was not brought before the notice of tlie arbitrators, or considered by them ; and then the award will not be permitted to affect this demand. If, by an award, money is to be paid in satisfaction of a debt, this implies an award of a release on the other side, and makes this release a condition to the payment. There is no especial form of an award necessary in this coun- try. If the submission requires that it should be sealed, it must be so. And if the submission was made under a statute; or under a rule of court, the requirements of the statute or the rule should be followed. But even here mere formal inaccuracies would seldom be permitted to vitiate the reward. If the submission contains other directions or conditions, as that it should be delivered to the parties in writing, or to each of the parties, such directions must be substantially followed. Thus, in the latter case, it has been held that it is not enough that a copy be delivered to one of the parties on each side, but each individual party must have one. It may happen, where an award is offered in defence, or as the ground of an action, that it is open to no objection whatever for anything which it contains or which it omits ; and yet it may be set aside for impropriety or irregularity in the conduct of the arbitrators, or in the proceedings before them. Awards are thus set aside if "procured by corruption or undue means." This rule rests, indeed, on the common principle, that fraud vitiates and avoids every transaction. So, too, it may vvell be set aside if it be apparent on its face that the arbitrator has made a material mistake of fact or of law. It must, however, be rather a strong case in which the court would receive evidence of a mere mistake, either in fact, or in law, which did not appear in the award, and was not supposed to spring from or indicate corruption. Another instance of irregularity is the omission to examine witnesses ; or an examination of them when the parties were not present, and their absence was for good cause ; or a concealment by either of the parties of material circumstances ; for this would be fraud. So if the arbitrators, in case of disagreement, were 265 ARBITRATION. authorized to choose an umpire, but drew lots which of them should choose him. But it has been held enough that each arbitrator named an umpire, and lots were drawn to decide which of these two should be taken, because it might be considered that both of these men were agreed upon. And if an umpire be appointed by lot, or otherwise irregularly, if the parties agree to the appointment, and confirm it expressly, or impliedly by attending before him, with a full knowledge of the manner of the appointment, this covers the irregularity. SECTION II. THE REVOCATION OF A SUBMISSIO^T TO ARBITRATORS. It is an ancient and well established rule, that cither party may revoke his submission at any time before the award is made ; and by this revocation render the submission wholly ineffectual, and of course take from the arbitrators all power of making a binding award. And, generally, this power exists until the award is made. In this country, our courts have always excepted from this rule submissions made by order or rule of court ; for a kind of jurisdiction is held to attach to the arbitrators, and the submis- sion is quite irrevocable, except for such cases as make it nec- essarily inoperative. There is a strong reason why a submission by order of court, or before a magistrate, should be preferred where it can be had, from the fact above stated, that the law permits any party who finds an award is going against him to revoke his submission or reference when he will, before the award is made ; provided the award was only by agreement out of court, or not before a mag- istrate. In some of our States, the statutes authorizing and regulating arbitration provide fox the revocation of the submis- sion. It should be stated, however, that, as an agreement to sub- mit is a valid contract, the promise of each party being the con- sideration for the promise of the other, a revocation of the agree- ment or of the submission is a breach of the contract, and the other party has his damages. And damages would generally REVOCATION OF SUBMISSION TO ARBITRATORS. 267 include all the expenses the plaintiff has incurred about the submission, and all that he has lost by the revocation, in any way. If either party exercise this power of revocation, he must give notice in some way, directly or indirectly, to the other party ; and until such notice, the revocation is inoperative. Bankruptcy or insolvency of either or both parties does not necessarily operate as a revocation, unless the terms of the agreement to refer, or the provisions of the insolvent law, required it. But the assignees acquire whatever power of revocation the bankrupt or insolvent possessed, and, generally, at least, no further power. The death of either party before the award is made vacates the submission, if made out of court, unless that provides in terms for the continuance and procedure of the arbitration, if such an event occur. But a submission under a rule of court is not revoked or annulled even by the death of a party. So the death or refusal or inability of an arbitrator to act would annul a submission out of court, unless provided for in the agreement ; but not one under a rule of court, unless for especial reasons, satisfactory to the court, which would make an appointment of a substitute, if it saw fit to continue the reference. It may be well to add, that, after an award is fully made, neither of the parties without the consent of the other, nor either nor all of the arbitrators without the consent of all the parties, have any further control over it. If the submission provides for any method of delivering the award, this should be followed. If not, it is common for the referees to deliver the award to the prevailing party or his attor- ney, on payment by him of the fees of arbitration. Then the prevailing party looks to the losing party, for the whole, or a part, or none of the costs, as the award may determine. The award should be sealed, and addressed to all the parties ; and it should not be opened except in presence of all the parties, or of their attorneys, or with the consent of those absent indorsed on the award. If the submission is under a rule of court, it should be returned to court by the arbitrators, or the counsel receiving it, sealed, and opened only in court, or before the clerk, or with the written consent of parties. 268 ARBITRATION. The submission, or agreement to refer, may be made by exchange of Bonds, each party executing and delivering a Bond to the other party. This would be a formal proceeding. But, as has been already said, no especial form is necessary ; and often a very simple one, like that below, would suffice. (8C.) Simple Agreement to Refer. Know all Hen, That we, of and of do hereby promise and agree, to and -^yith each other, to submit, and do hereby submit, all questions and claims between us (or any specific qicestion or claim, describing it) to the arbitrament and determination of {here name ike arbitrators) whose decision and award thall be final, binding, and conclusive on us ; {add if there are more arbitrators than one, and it is intended iliatthey may choose an umpire) and, in case of disagreement between the said arbitrators, they may choose an umpire, whose award shall be final and conclusive ; {or add, if there be more than two arbitrators) and, in case of disagreement, the decision and award of a majority of said arbitrators shall be final and conclusive. Id. Witness Whereof, &c. {Signatures^ (87.) Arbitration Bond. One or more Arbitrators. Know all Eon by these Prcccnts, That I, {one of the parties) am held and f.rmly bound unto {the other party') in the sum of dollars, lawful money of the United States of America, to be paid to the said {the other party) executors, administrators, or assigns; for which payment, well and truly to be made, I hereby bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal. Dated the day of one thousand eight hundred and Tha Condition of the ahovo Obligation is such. That if the above bounden shall well and truly submit to the decision of {the referee) named, selected, and chosen arbitrator as well by and on the part and behalf of, the said as of the said between whom a controversy exists, to hear all the proofs and allegations of the parties of and concerning {here set forth the claims or questions referred) and all matters relating thereto, and that the award of the said arbitrator be made in writing, subscribed by him (or them) and attested by a subscribing witness, ready to be delivered to the said parties on or before the day of next. A PRIVATE CARRIER. 269 But before proceeding to take any testimony therein, the arbitrator shall be sworn, "faithfully and fairly to hear and examine the matters in controversy between the parties to these presents, and to make a just award according to the best of his (or their) understanding." And the said parties to these presents do hereby agree, that judgment in the case (in question) shall be rendered upon the award which may be made pursuant to this submission, to the end that all matters in controversy in that behalf, between them, shall be finally concluded. Then the above obligation to be void, otherwise to remain in full force and virtue, (Signature) {Seal.) Signed, Sealed, and Delivered in Presence of [To make the contract complete, the other party should execute and deliver a counterpart of this Bond.] (88.) Award of Arbitrators. To all to whom these Presents shall come, We [names of the arbi- trators), to whom was submitted as arbitrators the matters in controversy existing between as by the condition of their respective bonds of submission, executed by the said parties respectively, each unto the other, and bearing date the day of one thousand eight hundred and more fully appears. Now, therefore, know ye, That we the arbitrators mentioned in the said bonds having been first duly sworn according to law, and having heard the proofs and allegations of the parties, and examined the matters in controversy by them submitted, do make this award in writing ; that is to say, the said (Jiere follows the award) In "Witness Whereof, have hereunto subscribed these presents, this day of one thousand eight hundred and (Signatures) In Presence of CHAPTER XX. THE CARRIAGE OF GOODS AND PASSEJTGERS, SECTION I. A PRIVATE CARRIER. One who carries goods for another is either a private carrier or a common carrier. A private carrier is one who carries for others once, or some- times, but who does not pursue the business of carrying as his 270 THE CARRIAGE OF GOODS AND PASSENGERS. usual and professed occupation. The contract between him and the owner of the goods which he carries is one of service, and is governed by the ordinary rules of law. Each party is bound to perform his share of the contract. Such a carrier must receive, care for, carry, and deliver the goods, in such wise as he bargains to do. If he carries the goods for hire, whether actually paid or due, he is bound to use ordinary diligence and care ; by which the law means such care as a man of ordinary capacity would take of his own property under similar circumstances. If any loss or injury occur to the goods while in his charge, from the want of such care or diligence on his part, he is responsible. But if the loss be chargeable as much to the fault of the owner as of the carrier, he is not liable. The owner must show the want of care or diligence on the part of the private carrier, to make him liable ; but slight evidence tending that way would suffice to throw upon him the burden of accounting satisfactorily for the loss. And if there is such negligence on the part of the carrier, or of a servant for whom he is responsible, the carrier is liable, although the loss be caused primarily by a defect in the thing carried. If he carries the goods without any compensation, paid or promised, he is, in the language of the law, a gratuitous bailee, or mandatary : he is now bound only to slight care ; which is such care as every person, not insane or fatuous, would take of his own property. For the want of this care, which would be gross negligence, he is responsible, but not for ordinary negli- gence. We sum up what may be said of the private carrier in the remark, that the general rules which regulate contracts and mutual obligations apply to the duties and the rights of a pri- vate carrier, with little or no qualification. But it is otherwise with a common carrier. SECTION II. THE COMMON CARRIER. The law in relation to the rights, the duties, and the respon- sibilities of a common carrier is quite peculiar. The reasons for THE COMMON CARRIER. 271 It are discernible, but it rests mainly upon established usage and custom. And, as these usages have changed considerably in modern times, this law has undergone important modifications. He is a common carrier " who undertakes, for hire, to trans- port the goods of such as choose to employ him from some known and definite place or places to other known and definite place or places." He is one who undertakes the carriage of goods as a business ; and it is mainly this which distinguishes him from the private carrier. The rights and responsibilities of the common carrier may be briefly stated thus : He is bound to take the goods of all who offer, if he be a carrier of goods, and the persons of all who offer, if he be a carrier of passengers ; and to take due care and make due transport and delivery of them. He has a lien on the goods which he carries, and on the baggage of passengers, for his com- pensation. He is liable for all loss or injury to the goods under his charge, although wholly free from negligence, unless the loss happens from the act of God, or from the public enemy. These three rules will be considered in the next section. The important thing to be remembered is, that a private carrier is not liable for injury to persons, or loss of or injury to goods, without fault or negligence on his part ; but a common carrier is liable, without any fault or negligence on his part. Truckmen or draymen, porters, and others who undertake the carriage of goods for all applicants from one city or town to another, or from one part of a city to another, are chargeable as common carriers. So, proprietors of stage-coaches are charge- able as common carriers of passengers, and of the baggage of passengers ; or the baggage of others, if they so advertise them- selves. So are hackney-coachmen within their accustomed range. If drivers of stages, or omnibuses, commonly carry and receive pay for goods or parcels which are not the baggage of passengers, and are held out or advertised, or generally known, as so carrying them, they are common carriers of goods, and the proprietors are liable for the loss of such parcels, although neither they nor the drivers were in fault. But if there is no such habit or usage, and the driver receives such a parcel to be 2/2 THE CARRIAGE OF GOODS AND PASSENGERS. carried somewhere, and is paid for it, the driver carries it as a private carrier, and not as a common carrier, and is chargeable only for negligence or fault. And if the line of carriages is established for passengers, and the driver does not account for what is paid him for occasional parcels, but takes it as his own perquisite, the proprietors are not answerable even for the driver's fault or negligence, unless circumstances in some way bring the fault home to them. In this country, in recent times, the business of carrying goods and passengers is almost monopolized by what are called expressmen, by railroads, or by lines of steam-packets along our coasts, or upon our navigable streams or lakes. All these are undoubtedly common carriers ; and although their peculiar method of carrying on this business is new, and will require from us especial consideration in another chapter, there can be no doubt of their being, to all intents and purposes, common carriers. Ordinary sailing vessels are sometimes said to be common carriers. W'e should be disposed to restrict this terrn, however, to regular packets ; or, at most, to call by this name general freighting ships. It is not, however, necessary to consider this question, as water-borne goods are now almost always carried under bills of lading, which determine the relations and respect- ive rights of the parties ; and these we shall consider in our chapter on the Law of Shipping. The boatmen on our rivers and canals are common carriers, and ferrymen are common carriers of passengers by their office, and may become common carriers of goods by taking up that business. A steamboat usually employed as a carrier may do something else, as tow a vessel out of a harbor, or the like; and the character of common carrier does not attach to this special employment, and carry with it its severe liabilities. Therefore, for a loss occurring to a ship in her charge while so emjDloyed, the owner of the steamer is not liable without negligence on his part, or on the part of those whom he employs. The same person may be a common carrier, and also hold other offices or relations. He may be a warehouseman, a wharfinger, or a forwarding merchant. The peculiar liabilities of the common carrier do not attach to either of these offices OBLIGATION OF THE COMMON CARRIER. 273 or employments. Thus, a warehouseman is liable for the loss of the goods which he takes for storage, only in case of his own negligence ; he is not, as a common carrier is said to be, an insurer of the goods. The question then arises, when the lia- bihty of such a person is that of a warehouseman, and when it is that of a carrier. If a carrier receives goods to be stored until he can carry them, — a canal-boatman, for example, — or if, at the end of the journey, he stores them for a time for the safety of the goods or the convenience of the owner, while thus stored he is liable only as warehouseman. But if he puts them into his store or office only for a short time, and for his own convenience, either at the beginning or end of the transit (or journey), they are in his hands as carrier. Where these relations seem to unite and mingle in one per- son, it may be said to be the general rule, that, wherever the deposit, in whatever place or building, is secondary and subor- dinate to the carriage of the goods, which is, therefore, the chief thing, the party taking the goods is a carrier ; and otherwise a depositary only of some kind. If, therefore, goods are deliv- , ered to a carrier, or at his depot or receiving-room, with direc- tions not to carry them until further orders, he is only a depositary, and not a carrier, until those orders are received ; but when they are received he becomes a carrier ; and if the goods are afterwards lost or injured before their removal, he is liable as a common carrier without negligence or fault on his part. SECTION III. THE OBLIGATION OF THE COMMON CARRIER TO RECEIVE AND CARRY GOODS OR PASSENGERS. He cannot refuse to receive and carry goods offered, with- out good cause ; for, by his openly announcing himself in any way as engaged in this business, he makes an offer to the public which becomes a kind of contract as to any one who accepts it. He may demand his compensation, however, and, if it be refused, he may refuse to carry the goods ; nor is he bound to carry them if security be offered to him, but not the money. But if the freight-money be not demanded, the owner of the 18 274 '^^^ CARRIAGE OF GOODS AND PASSENGERS. goods, if he is able, ready, and willing to pay it, has all his rights although he does not make a formal tender of the money. A carrier may refuse if his means of carriage are already fully employed. But, in a case where a railway company, being com- mon carriers, had issued excursion-tickets for a journey, it was held that they were not excused from carrying passengers according to their contract, upon the ground that there was no room for them in their conveyance ; and that, in order to avail themselves of this answer, they should make their contract condi- tional upon there being room. If the common carrier cannot carry the goods without danger to them, or to himself or other goods, or without extraordinary inconvenience, or if they are not such goods as it is his regular business to carry, he is excused for not carrying them. He is always entitled to his tisiial charge, but not to extraordinary compensation, unless for extraordinary service. The common carrier of goods is bound to receive them in a suitable way, and at suitable times and places. If he has an office or station, he must have proper persons there, and proper means of security. During the transit, and at all stopping- places, due care must be taken of all goods, and that means the kind and measure of care appropriate for goods of that descrip- tion. If he have notice, by writing on the article or otherwise, of the need of peculiar care, — as, " Glass, with great care," or "This side uppermost," or "To be kept dry," — he is bound to comply with such directions, supposing them not to impose unnecessary care or labor. If he carry passengers he must receive all who offer, unless he has some special and sufficient reason for refusing. In a case tried before the Supreme Judicial Court of Massa- chusetts, it was held that if an inn-keeper, who has frequently entered a railroad depot and annoyed passengers by soliciting them to go to his inn, receives notice from the superintendent of the depot that he must do so no more, and he nevertheless repeatedly enters the depot for the same purpose, and after- wards obtains a ticket for a passage in the cars, with an actual intention of entering the cars as a passenger, and goes into the depot on his way to the cars, and the superintendent, believing OBLIGA TION OF THE COMMON CARRIER. 275 that he has entered the depot to solicit passengers, orders him to go out, and he does not exliibit his ticket, nor give notice of his real intention, but presses forward towards the cars, and the superintendent and his assistants therefore forcibly remove him from the depot, using no more force than is necessary for that purpose, such removal is justifiable, and not an indictable assault and battery. A common carrier is bound to carry his passengers over the whole route, and at a proper speed, or supply proper means of transport ; to demand only a reasonable or usual compensation ; to notify his passengers of any peculiar dangers ; to treat all alike, unless there be actual and sufficient reason for the dis- tinction, as in the filthy appearance, dangerous condition, or misconduct of a passenger ; and to behave to all with civility* and decorum. He must also ha.ve proper carriages, and keep them in good condition, and not overload them; and suitable horses and drivers ; stop at the usual places, with proper intervals for rest or food ; take the proper route ; and drive at proper speed ; and leave the passengers at the usual stopping-places, or wherever he agrees to. In none of these things can he depart from what is usual and proper at his own pleasure. And if by any breach of these duties a passenger is injured, the carrier is responsible. So if he puts his passengers in peril, and one of them be hurt by an effort to escape, as in jumping off, it is no defence for the carrier to show that he would have been safe if he had remained. In one case it was held that a common carrier who had received a pickpocket as a passenger on board his vessel, and taken his fare, could not put him on shore so long as he was not guilty of any impropriety. But this may be doubted. The common carrier must certainly employ competent and well- behaved persons for all duties, and for failure in any of the par- ticulars of his duties and obligations, he is responsible, not only to the extent of any damage caused thereby, but also, in many cases, for pain and injury to the feelings. He is also bound to deliver to each passenger all his baggage at the end of his jour- ney, and is held liable if he delivers it to a wrong party on a forged order, and without personal default. 276 THE CARRIAGE OF GOODS AND PASSENGERS. Lastl}', he must make due delivery of the goods at the proper time, in the proper way, and at the proper place, and to the proper person ; and this person should be some one who was authorized by the owner or sender to receive the goods. If a party authorized to receive the goods refuse, or is unable to do so, the carrier must keep them for the owner, and with due care ; but now under the liability of a warehouseman, and not of a carrier ; that is, he is now liable only for fault of some kind. So the carrier must keep the goods for the owner, if he has good reason to believe that the consignee is dishonest, and will defraud the owner of his property. As to the time when goods should be delivered, it must be within the proper hours for busi- ness, when they can be suitably stored ; or if the goods are deliv- ered to the sender himself, or at his house, then at some suitable and convenient hour. There must be no unnecessary delay, and the goods must be delivered as soon after a detention as may be with due diligence. As to the way and the place at which the goods should be delivered, much must depend upon the nature of the goods, and much also upon the usage in regard to them, if such usage exists. The goods should be so left, and with such notice, as to secure the early^ convenient, and safe reception of them by the person entitled to have them. Something also must depend on this point, on the mode of conveyance. A man may carry a parcel into the house and deliver it to the owner or his servant; a wagon or cart can go to the gate, or into the yard, and there deliver what it carries. A vessel can go to one wharf or another, and is bound to go to that which is reasonably convenient to the consignee, or to one that was agreed upon ; but a vessel is not always bound to comply with requirements of the consignee as to the very wbarf the goods should be left at, but may leave the goods at any safe, convenient, and accessible wharf at which such goods are usually left. Where the goods are not delivered to the owner personally, OBLIGATION OF THE COMMON CARRIER. 277 or to his agent, immediate notice should be given to the owner. The carrier is generally obliged to give notice of the delivery of goods, and if the owner has in any way designated how the goods may be delivered to himself, he is bound to obey this direction. The notice must be prompt and distinct. And if the goods are delivered at an unsuitable or unauthorized place, no notice will make this a good delivery. Railroads terminate at their station, and although goods might be sent by wagons to the house or store of consignees, this is not usually done, as it is considered that the railroad carrier has finished his transit at his own terminus. Usually, the consignee of goods sent by railroad has notice from the consignor when to expect them ; and this is so common, that it is seldom necessary, in fact, for the agents of the railroad to give notice to the consignee. But this should be given where it is necessary ; and should be given as promptly, directly, and specifically as may be necessary for the purpose of the notice. A railroad company may be compared to owners of ships in this respect, that neither can take the cars or the ships farther than the station or the wharf, and therefore may deliver the goods there. But a carrier by water is bound to give notice that the goods are on the wharf, and is not exonerated as carrier until he gives such notice ; whereas, a railroad company is not bound to give notice. It may happen that some third party may claim the goods under a title adverse to that of the consignor or consignee. If the carrier refuse to deliver them to this third party, and it turns out that the claimant had a legal right to demand them, the carrier would be liable in damages to him. But the carrier may and should demand full and clear evidence of the claimant's title ; and if the evidence be not satisfactory, he may demand security and indemnity. If the evidence or the indemnity be withheld, he certainly should not be held answerable for any- thing beyond that amount which the goods themselves would satisfy, for he is in no fault. If he delivers the goods to such claimant, proof that the claimant had good title is an adequate defence against any suit by the consignor or consignee for non- delivery. 2/8 THE CARRIAGE OF GOODS AND PASSENGERS. SECTION- IV. THE LIEN OF THE COMMON CARRIER. The legal meaning of this word, as we have said before, when we have had occasion to use the word in preceding chap- ters, is the right of holding or detaining property until some charge against it, or some claim upon the owner on account of it is satisiied. The common carrier has this right against all the goods he carries, for his compensation. While he holds them for this purpose, he is not liable for loss or injury to them as a common carrier; that is, not unless the injury happen from his own fault. He may not only hold the goods for his compensation, but may recover this out of them, by any of the usual means in which a lien upon personal chattels is made productive. That is, he holds them just as if they were pledged to him by the owner as a security for the debt. Therefore, if the debt be not paid in a reasonable tim.e after it is due and demanded, the carrier may have a decree of a court of equity for their sale ; or may sell them himself at auction, retaining his pay from the proceeds, and paying over the remainder. But to make this course justifiable and safe, the carrier must wait a reasonable time, and give full notice of his intention, so that the owner may have a convenient opportunity to redeem the goods ; and there must be proper advertisement of the sale, and every usual precaution taken to insure a favorable sale; and the carrier must not himself buy the goods, and must act in all respects with entire honesty. SECTION V. THE LIABILITY OF THE COMMON CARRIER. This is perfectly well established as a rule of law, although it is very exceptional and peculiar. It is sometimes said to arise from the public carrier being a kind of public officer. But the true reason is the confidence which is necessarily reposed in him, the power he has over the goods intrusted to him, the ease with which he may defraud the owner of them, and yet make it LIABILITY OF THE COMMON CARRIER. 279 appear that he was not in fault, and the difficulty wMch the owner might have in making out proof of his dei:x'.i!t. This reason it is important to remember, because it helps us tC) con- strue and apply the rules of law on this subject. Thus, the rule is that the common carrier is liable for any loivi or injury to goods under his charge, unless it be caused by f'.e act of God, or by the public enemy. The rule is intended to hold the com- mon carrier responsible wherever it was possible that he caused the loss, either by negligence or design. Hence, the act of God means some act in which neither the carrier himself, nor any other man, had any direct and immediate agency. If, for example, a house in which the goods are at night is struck by lightning, or blown over by a tempest, or washed away by inundation, the carrier is not liable. This is an act of God, although man's agency interferes in causing the loss ; for without that agency, the goods would not have been there. But no man could have directly caused the loss. On the other hand, if the building was set on fire by an incendiary at midnight, and the rapid spread of the flames made it absolutely impossible to rescue the goods, this might be an inevitable accident if the carrier were wholly innocent, but it would also be possible that the incendiary was in collusion with the carrier for the purpose of concealing his theft ; and there- fore the carrier would be liable for such a loss, however innocent. As a general rule, the common carrier is always liable for loss by fire, unless it is caused by lightning, an accidental fire not being considered an act of God, or a peril of the sea; and this rule has been applied to steamboats and other vessels. So, it may be true that after the lightning, the tempest, or inunda- tion, the carrier was negligent, and so lost the goods which might have been saved by proper efforts', or that he took the opportunity to steal them. If this could be shown, the carrier would, of course, be liable ; but the law will not suppose this without proof, if the first and main cause were such that the carrier could not have been guilty in respect to it. So, a com- mon carrier would be liable for a loss caused by a robbery, however sudden, unexpected, and irresistible, or by a theft, 280 THE CARRIAGE OF GOODS AND PASSENGERS. however wise and full his precautions, and however subtle and ingenious the theft, although either of these might seem to be unavoidable by any means of safety which it would be at all reasonable to require. The general principles of agency extend to common carriers, and make them liable for the acts of their agents, done while in the discharge of the agency or employment. So, the knowledge of his agent is the knowledge of the carrier, if the agent be authorized expressly, or by the nature of his employment, to receive this notice or knowledge. But an agent for a common carrier may act for himself, — as a stage-coachman in carrying parcels, for which he is paid personally and does not account with his employer, — and then the employer, as we have said, is not liable, unless the owner of the g'oods believed the stage- coachman carried the goods for his employer, and was justified by the facts and apparent circumstances in so believing. A carrier may be liable beyond his -own route. It is very common for carriers, who share between them the parts of a long route, to unite in the business and the profits, and then all are liable for a loss on any part of the route. If they are not so united in fact, but say they are so, or say what indicates that they are so, they justify a sender in sup- posing they are united, and then they are equally liable. If a carrier takes goods to carry only as far as he goes, and then engages to send them forward by another carrier, he is liable as carrier to the end of his own route; he is liable also if he neglects to send the goods on; but he is not liable for what may happen to them afterwards. SECTION VI. THE CARRIER OF PASSENGERS. TiTE carriers of passengers are under a more limited liability than the carriers of goods. This is now well settled. The reason is, that they have not the same control over passengers as over goods; cannot fasten them down, and use other means of securing them. But while the liability of the carrier of passengers is thus mitigated, it is still stringent and extreme. NOTICE BY CARRIER RESPECTING LIABILITY. 281 No proof of care will excuse the carrier if he loses goods com- mitted to him. But proof of the utmost care will excuse him for injury done to passengers; for the carrier of passengers is liable for injury to them, unless he can show that he took all possible care, — giving always a reasonable construction to this phrase ; and in the case of railroad companies there is authority for using the words in almost their literal meaning; that is, for holding them liable for all injury to passengers which could have been possibly avoided. SECTION VII. A NOTICE BY THE CARRIER, RESPECTING HIS LIABILITY. The common carrier has a right to make a special agree- ment with the senders of goods, which shall materially modify, or even wholly prevent, his liability for accidental loss or injury to the goods. The question is, What constitutes such a bargain .? A mere notice that the carrier is not responsible, or his refusal to be responsible, although brought home to the knowledge of the other party, does not necessarily constitute an agreement. The reason is this. The sender has a right to insist upon sending his goods, and the passenger has a right to insist upon going himself with customary baggage, leaving the carrier to his legal iresponsibility ; and the carrier is bound to take them on these terms. If, therefore, the sender or the passenger, after receiving such notice, only sends or goes in silence, and with- out expressing any assent, especially if the notice be given at such time, or under such circumstances, as would make it inconvenient for the sender not to send, or for the passenger not to go, then the law will not presume from his sending or going an assent to the carrier's terms. But the assent may be expressed by words, or made mani- fest by acts ; and it is in each case a question of evidence for the jury whether there was such an agreement. But a notice by the carrier, which only limits and defines his liability to a reasonable extent, without taking it away, as one which states what kind of goods he will carry, and what he will not ; or to what amount only he will be liable for passen- 282 THE CARRIAGE OF GOODS AND PASSENGERS. gers' baggage, without special notice ; or what information he will require, if certain articles, as jewels or gold, are carried; or what increased rates must be paid for such things,— any notice of this kind, if in itself reasonable and just, will bind the party receiving it. No party will be affected by any notice, — neither the carrier, nor a sender of goods, nor a passenger, — unless a knowledge of it can be brought home to him. In a case in Pennsylvania, where the notice was in the English language, and the passenger was a German, who did not understand English, it was held that the carrier must prove that the passenger had actual knowledge of the limitation in the notice. But the knowledge may be brought home to him by indirect evidence. As by showing that it was stated on a receipt given to him, or on a ticket sold him, or in a newspaper which he read, or even that it was a matter of usage, and generally known. This question is one of fact, which the jury will determine upon all the evidence, under the direction of the court. And if the notice is ambiguous, they will be directed to give it the mean- ing which is against the carrier, because it was his business to make it plain and certain. Any fraud towards the carrier, as a fraudulent disregard of a notice, or an effort to cast on him a responsibility he is not obliged to assume, or to make his liability seem to be greater than it really is, will extinguish the liability of the carrier so far as it is affected by such a fraud. If a carrier gives notice which he is authorized to give, the party receiving it is bound by it, and the carrier is under no obligation to make a special inquiry or investigation to see that the notice is complied with, but may assume that this is done. It should, however, be remarked that such notice affects the liability of the common carrier only so far as it is peculiar to him, that is, his liability for a loss which occurs without his agency or fault ; for he is just as liable as he would be without any notice, for a loss or injury caused by his own negligence or default. Perhaps a common carrier might make a valid bargain which would protect him against every thing but his own wilful or CARRIER'S LIABILITY FOR GOODS OF PASSENGERS. 283 fraudulent misconduct. , But no bargain could be made to pro- tect him against this. SECTION VIII. THE carrier's liability FOR GOODS CARRIED I5Y PASSENGERS. A CARRIER of goods knows what goods, or rather what parcels and packages, he receives and is responsible for. A carrier of passengers is responsible for the goods they carry with them as baggage ; what that is, the'carrier does not always know ; and he is responsible only to the extent of what might be fairly and naturally carried as baggage. This must always be a question of fact, to be settled as such by the jury, upon all the evidence, and under the direction of the court. But there can be no precise and definite standard. A traveller on a long journey needs more money and more baggage than on a short one ; one going to some places and for some purposes needs more than one going to other places or for other pur- poses. Thus in New York it was decided that baggage does not properly include money in a trunk, or any articles usually carried about the person. And in another New York case, it was held that, where the baggage of a passenger consists of an ordinary travelling-trunk, in which there is a large sum of money, such money is not considered as included under the term baggage, so as to render the carrier responsible for it. But generally a passenger may carry as baggage, money not exceeding an amount ordinarily carried for travelling-expenses. So in Massachusetts it was held that common carriers are responsible for money bond fide included in the baggage of a passenger, for travelling-expenses and personal use, to an amount not exceeding what a prudent person would deem proper and necessary for the purpose. In Pennsylvania, carriers have been held responsible for ladies' trunks containing apparel and jewels. And in Illinois, a common carrier of passengers has been held liable for the loss of a pocket-pistol, and a pair of duelling-pistols, contained in the carpet-bag of a passenger, which was stolen out of the possession of the carrier. But in Tennessee, it has been held 284 ^^^ CARRIAGE OF GOODS AND PASSENGERS. that "a silver watch, worth about thirty-five dollars, also medicines, handcuffs, locks, &c., worth about twenty dollars," were not included in the terra baggage, and that the carrier was not responsible for their loss. In Ohio, it has been held that a gold watch, of the value of ninety-five dollars, was a part of the traveller's baggage, and his trunk a proper place to carry it in. In another New York case it has been held that the owners of steamboats were liable as common carriers for the baggage of passengers ; but, to subject them to damages for loss thereof, it must be strictly baggage ; that is, such articles of necessity and personal convenience as are usually carried by travelers. And it was accordingly held, in that case, that the carrier was not liable for the loss of a trunk containing valuable merchan- dise and nothing else, although it did not appear that the plain- tiff had any other trunk with him. But in a case in Pennsylva- nia, where the plaintiff was a carpenter maving to the State of Ohio, and his trunk contained carpenters' tools to the value of fifty-five dollars, which the jury found to be the reasonable tools of a carpenter, it was held that he was entitled to recover for them as baggage. There is some diversity, and perhaps some uncertainty, in the application of the rule ; but the rule itself is well settled, and a reasonable construction and application of it must always be made ; and, for this purpose, the passenger himself, and all the circumstances of the case, must be considered. The purpose of the rule is to prevent the carrier from becoming liable by the fraud of the passenger, or by conduct which would have the effect of fraud ; for this would be the case if a passenger should carry merchandise by way of baggage, and thus make the carrier of passengers a carrier of goods without knowing it and without being paid for it. Generally, a common carrier of passengers, by stage, packet, steamer, or cars, carries the moderate and reasonable baggage of a passenger, without being paid specifically for it. But the law considers a payment for this so far included in the payment of the fare, as to form a sufficient ground for the carrier's liability to the extent above stated. The carrier is only liable for the goods or baggage delivered CAIiRIHR'S LIABILITY FOR GOODS OF PASSENGERS. 28$ to him and placed under his care. Hence, if a sender of goods send his own servant with them, and intrust them to him and not to the carrier, the carrier is not responsible. So, if a pas- senger keeps his baggage, or any part of it, on his person, or in his own hands, or within his own sight and immediate control, instead of delivering it to the carrier or his servants, the carrier is not liable, as carrier, for any loss or injury which may happen to it; that is, not without actual default in the matter. Thus, in an action brought in New York to charge a railroad company, as common carriers, for the loss of an overcoat belonging to a passenger, it appeared that the coat was not delivered to the defendants, but that the passenger, having placed it on the seat of the car in which he sat, forgot to take it with him when he left, and it was afterwards stolen ; and it was held that the defendants were not liable. But if the baggage of a passenger is delivered to a common carrier, or his servant, he is liable for it in the same way, and to the same extent, as he is for goods which he carries. In this country the rules of evidence permit the traveller to maintain his action against the carrier by proving, by his own testimony, the contents of a lost trunk or box, apd their value. And the testimony of the wife of the owner is similarly admissi- ble. But it is always limited to such things — in quantity, quality, kind, and value- — as might reasonably be supposed to be carried in such a trunk or valise. The rule, with this limitation, seems reasonable and safe, and is quite generally adopted. In Massa- chusetts it was distinctly denied by the Supreme Court, but was afterwards established by statute. The common carrier of goods or of passengers is liable to third parties for any injury done to them by the negligence or default of the carrier, or of his servants. And it would seem that he is liable even for the wilful wrong-doing of his servants, if it was committed while in his employ, and in the management of the conveyance under his control, although the wrong was done in direct opposition to his express commands. So he is for injury to property by the wayside, caused by his fault. But the negligence of the party suffering the injury, if it was mate- rial and contributed to the injury, is a good defence for the carrier, unless malice on the carrier's part can be shown. 286 THE CARRIAGE OF GOODS AND PASSENGERS. Where the party injured is in fault, the common carrier has still been held liable, if that fault was made possible and injurious through the fault of the carrier. If passengers are carried gratuitously, that is, without pay, the common carrier is still liable for injury caused by his negligence. Whether a railroad company is responsible for fire set to buildings or property along the road, without negligence on its part, has been much considered in this country. In some of our States they are made so liable by statute provision. And this fa;t, together with the general principles of liability for injury done, would seem to lead to the conclusion that they are not liable, unless in fault, or unless made so by statute. (89.) Steam Packet Company, Marks and Numbers. Received from the following articles, being marked and numbered as in the margin, in apparent good order, the con- tents and value unknown, to be transported from to on one of the company's steamers, and to be delivered on their wharf in , in like good order and condition, the dangers of the sea, of fire on board or on wharf, collision, and all other accidents excepted. Dated at For the company. The following form will show the terms and conditions on which our express companies carry their freight. This paper, given and received, constitutes a contract. Duplicate. (90.) .Express Company. fast freight line. i8 Received from the following packages, in apparent good order, contents and value unknown : FORMS OF COMMON CARRIER'S RECEIPTS. 287 Express Company. Advanced Charges, ? RATES. Marked and numbered as in the margin, D'ble 1st Class cts. per 100 ibs. to be forwarded by railroad and delivered at upon payment of freight therefor, 1st Class cents per 100 lbs. as noted in the margin, subject to the condi- tions and rules on the back hereof, and 2d Class cents per 100 lbs. those of the several railroads over which the property is transported, which consti- 3d Class cents per 100 lbs. tute a part of this contract. 4th Class cents per 100 lbs. Agent. As per Classification on tjack. On the back of this receipt is a minute and very full classi- fication of all articles likely to be offered for transportation, followed by the Conditions and Rules. The destination, name of the consignee, and weight of all articles of freight, must be plainly and distinctly marked, or no responsibility will be taken for their miscarriage or loss ; and when designed to be forwarded, after transportation on the route, a written order must be given, with the particu- lar line of conveyance marked on the goods, if any such be preferred 01 desired. The companies will not hold themselves liable for the safe carriage or custody of any articles of freight, unless receipted for by an authorized agent; and no agent of the line is authorized to receive, or agree to transport, any freight, which is not thus receipted for. No responsibility will be admitted, under any circumstances, to a greater amount upon any single article of freight than $200, unless upon notice given of such amount, and a special agreement therefor. Specie, drafts, bank- bills, and other articles of great intrinsic or representative value, will only be taken upon a representation of their value, and by a special agreement assented to by the superintendent of the receiving road. The companies will not hold themselves liable at all for injuries to any articles of freight during the course of transportation, arising from the weather, or accidental delays, or natural tendency to decay. Nor will their guaranty of special despatch cover cases of unavoidable or extraordinary casualties, or storms, or delays occasioned by low water and ice ; and may be stored at the risk and expense of the owner. Nor will they hold themselves liable, as common carriers, for such articles, after their arrival at their place of destination at the company's warehouses or depots. Carriages and sleighs, eggs, furniture, looking-glasses, glass and crockery 288 HOTEL KEEPERS, INNKEEPERS, ETC. ware, machinery, mineral acids, piano-fortes, stoves and castings, sweet potatoes, wrought marble, all liquids put up in glass or earthen ware, fruit, and live animals, will only be taken at the owner's risk of fracture or injury during the course of transportation, loading and unloading, unless specially agreed to the contrary. Gunpowder, friction matches, and like combustibles, will not be received on any terms ; and all persons procuring the reception of such freight by fraud or concealment, will be held responsible for any damage which may arise from it while in the custody of the company. It is further stipulated and agreed, that goods shipped to points west of shall be subject to a change in classification and cor- responding change of rates beyond those points. Cases or packages of boots and shoes, and of other articles liable to peculation or fraudulent abstraction, must be strapped with iron or wood, or otherwise securely protected, or the companies will not be liable for diminu- tion of the original contents, and the companies will hold the freighter, in all cases, to bear the loss arising from improper packing. It is also agreed between the parties that the said companies, and the railroads and steamboats with which they connect, shall not be held account- able for any deficiency in packages if receipted for to them in good order. All articles of freight arriving at their places of destination must be taken away within twenty-four hours after being unladen from the cars, — each com- pany reserving the right of charging storage on the same, or placing the same in store at the risk and expense of the owner, if they see fit, after lapse of that time. CHAPTER XXI. HOTEL KEEPERS, INNKEEPERS, AND BOARDING-HOUSE KEEPERS. Hotel keepers and innkeepers are, in law, the same. An inn has been judicially defined as a house where the traveller is provided with everything which he has occasion for while on his way. There need not be a sign to make it an inn. A coffee- house or eating-room is not an inn, nor is a boarding-house. An innkeeper has a lien upon all the goods of a guest, for the price of his entertainment, or that of his servants and horses. This lien covers the goods brought to him by a guest, though they belong to another person. Thus he has a lien on a stolen horse which the thief brings to him. But he has no lien on the clothes or goods which a guest actually has upon his person. HOTEL KEEPERS, INNKEEPERS, ETC. 289 He must receive every guest who offers, unless his house is full, or there is good reason to believe that the guest will be disorderly. A guest has a right to reasonable accommodations, but not to choose his apartment, or use it for other purposes than those for which it was designated. Public policy imposes upon an innkeeper a severe liability. In strict law, he is an insurer of the property committed to his care, against every- thing but the act of .God, the public enemy, or the fraud or neglect of the guest. But there seems to be of late some disposition in the courts to hold him thus liable only where there has been some kind or measure of negligence on his part. A boarder at a boarding-house neither holds the keeper of the house to this liability, nor has the keeper a lien on the boarder's goods. It is sometimes difficult to say whether a person in the house is a guest at an inn, or a boarder. From all the cases we infer this distinction : A boarder is one who makes a bargain for a certain time. A guest comes and goes when he likes, paying only for what he receives. Though he stays a long time at an inn or hotel, without any bargain on time, he is still a guest ; holding the keeper of the inn to his liability, and having his goods under a lien to the keeper. But, if he makes a bargain on time, he becomes a boarder, and the liability and lien of the keeper cease. It is a good defence by an innkeeper against his liability for a loss, that it was caused by a servant of the owner, or by one who came with him as his companion, or by the owner's own fault. It is also a good defence if the owner retained, personally and exclusively, the custody and care of the goods ; but it is not enough to make this defence sufficient, that the owner exercised some choice as to where his goods should be placed, nor that the key of the room was given him. But an innkeeper may require of his guest to place his goods in a particular place, under lock and key ; or to give notice to guests that he will not be responsible for money, or especially valuable goods, unless placed in the innkeeper's safe. If such precautions are reasonable, and the guest neglects them, the innkeeper is not liable. Some articles of this kind a guest needs to have within his immediate reach ; and such things he need not deposit in 19 290 LIMITA riONS. the safe, and the innkeeper would be liable if they were lost without the guest's own fault. The innkeeper is liable for the loss of the goods while fairly in his custody, though not specially delivered to him : as if lost while the innkeeper's servant was carrying them to an inn, or from the inn to the cars, or in a hack in which the innkeeper undertook to carry the guest "free" from a station to his inn. Some cases hold that the innkeeper is liable for the loss of goods placed in an inn although the owner does not himself lodge or eat there. But other cases, and we think with better reason, hold that the innkeeper is liable only for the goods when the owner comes and stays with them. He is not liable per- manently for goods left by a guest who has gone away. He would, however, still be held liable for them for a reasonable time, which, in one case, was said to extend over " some days." For a guest may leave for a reasonable time, — which must not be long, — with the purpose of return ; and while he is absent his goods are under the same responsibility of the innkeeper as if the owner were in the house. If a horse or carriage is put into a distant barn, or a horse into a pasture, by the innkeeper, without the knowledge or con- sent of the owner, the innkeeper is liable for their loss. We hold that a boarding-house keeper is liable for loss caused by the negligence of his or her servants, as he or she is for his or her own; but not, like an innkeeper, for a loss without negligence. CHAPTER XXn. LIMITATIONS. SECTION I. THE STATUTES OF LIMITATIONS. All of our States have what are called Statutes of Limita- tions. They are not the same everywhere ; but they provide different periods of time within which the actions specified in CONSTRUCTION OF THE STA TUTE. 291 ihe Statutes must be brought. These periods vary from twenty years to one. Generally, they are longer for real actions, or for actions on judgments or on contracts under seal, and shorter for simple contracts of various kinds. An abstract of these statutory provisions in all the States is given at the close of this chapter. All actions of account, and all which can be brought for indebtedness or damages, and all actions of debt grounded upon any lending, or contract without seal, and all actions for arrearages of rent, shall be commenced and sued within six years next after the cause of such actions or suit arises, and not after. In few words, all claims which do not rest on a seal or a judgment must be sued within six years from the time when they arise. In some States, a statute provides, in substance, that, if a debt or promise be once barred by the Statute of Limitations, no acknowledgment of the debt or new promise shall renew the debt, ard take away the effect of the statute, unless the new promise is in writing, and is signed by the party who makes the promise. But this statute expressly permits a part-payment either of principal or interest of the old debt to have the same effect as a new promise. And this statute also provides, that if there be joint contractors or debtors, and a plaintiff is barred by the statute against both, but the bar of the statute is removed as to one by a new promise or otherwise, the plaintiff may have judgment against this one, but not against the other. Such statutes have been passed in Maine, Massachusetts, Vermont, New York, Indiana, Michigan, Arkansas, and Cali- fornia. SECTION II. CONSTRUCTION OF THE STATUTE. For the law of limitation there is a twofold foundation : in the first place, the actual probability that a debt which has not been claimed for a long time was paid, and that this is the reason of the silence of the creditor. But, besides this reason, there is the inexpediency and injustice of permitting a stale and neglected claim or debt, even if it has not been paid, to be set up and enforced after a long silence and acquiescence. 292 Lull IT A no AS. Before inquiring into the rules of law which now api^ly to the case of an acknowledgment or new promise, it should be remarked that a prescription, or limitation, of common law, much more ancient than the statutes above quoted, is still in force. This is the presumption of payment after twenty years, which is applicable to all debts ; not only the simple contracts to which the Statutes of Limitation refer, that is, contracts which are merely oral, or which if written have no seal, but to specialties, or contracts or debts under seal or by judgment of court. Of these it will not be necessary to speak here, except- ing to remark, that in a few of our States the Statute of Limi- tation excepts a promissory note which is signed in the presence of an attesting witness, and is put in suit by the original payee, or his executor or administrator ; such a note in those States, as in Maine and Massachusetts, may be sued any time within twenty years after it is due. Bank-bills and other evidences of debt issued by, banks, are everywhere excepted from the operation of the statute. SECTION III. THE NEW PROMISE. What is the new promise which suffices to take a case out of the statute .'' A mere acknowledgment, which does not con- tain, by any reasonable implication or construction, a new promise, is not sufficient, and still less so if it expressly excludes a new promise. In the leading American case upon this point, before the Supreme Court of the United States, it was proved, in answer to the plea of the Statute of Limitations, that the defendant, one of the partners of a firm then dissolved, said to the plaintiff, "I know we are owing you;" "I am getting old, and I wish to have the business settled :" it was held that these expressions were insufficient to revive the debt. So, in New Hampshire, in an action on a promissory note, the defend- ant, on being asked to pay the note, said "he guessed the note was outlawed, but that would make no difference, he was willing to pay his honest debts, always." As he did not state in direct terms that he was willing to pay the note, this was held not sufficient to revive the debt. A new promise is not now implied by the law itself, from a mere acknowledgment. PART'PA YMENT. 293 The new promise need not define the amount of the debt. That can be done by other evidence, if only the existence of the debt and the purpose of paying it are acknowledged. Still, the new promise must be of the specific debt, or must distinctly include it ; for if wholly general and undefined, it is not enough. A testator who provides for the payment of his debts, gen- erally, does not thereby make a new promise as to any one of them. If the new promise is conditional, the party relying upon it must be prepared to show that the condition has been fulfilled. Thus, if the new promise be to pay "when I am able," the prom- isee must prove not only the promise, but that the promisor is able to pay the debt. As the acknowledgment should be voluntary, it follows that one made under process of law, as by a bankrupt, or by answers to interrogatories which could not be avoided, should never have the effect of a new promise. SECTION IV. PART-PAYMENT. A PART-PAYMENT of a debt is such a recognition of it as implies a new promise, even if it was made in goods or chattels, if they were offered as payment, and agreed to be received as payment, or by negotiable promissory note or bill. Thus, in a case where one was sued for money due for a quantity of hay, and pleaded that it had been due more than six years, which was a good defence, the plaintiff proved in reply that defendant had given him within six years a gallon of gin as part-payment for his debt, and it was held that this took the case out of the Statute of Limitations, and the plaintiff recovered. But a pay- ment has this effect only when the payment is made as of a part of a debt. If it is made in settlement of the whole, of course it is no promise of more. And a bare payment, without words or acts to indicate its character, would not be construed as car- rying with it an acknowledgment that more was due and would be paid. If a debtor owes several debts, and pays a sum of money. 294 LIMITA TIONS. he has the right of appropriating that money to one debt or another as he pleases. If he pays it without indicating his own appropriation, the general rule is, that the creditor who receives the money may appropriate it as he will. There is, however, this exception. If there be two or more debts, some of which are barred by the statute, and others are not barred by it, the creditor cannot appropriate the payment to a debt that is barred, for the purpose of taking it out of the statute by such part- payment. SECTION V. THE STATUTORY EXCEPTIONS. As persons may have a right of action without being able to begin the action within the period required by the statutes, because they are disabled by infancy, or by absence from the State, or by unsoundness of mind, or imprisonment, or in some States by being a married woman, it is generally provided in the statutes that the limitations there prescribed do not apply to persons so disabled. The more common of these disabilities and the most universal in our State laws, are infancy and absence from the State. But these disabilities must exist when the cause of action arises to prevent the statutes of limita- tion from applying. And after the disabilities are removed, the persons who have been disabled may bring their action within certain periods of time. These periods are stated in the abstract of the Statutes of Limitation at the close of this chapter. The effect of these is, that the .disability must exist when the debt accrued ; and then, so long as the disability continues to exist, the statute does not take effect. But it is a general rule, that, if the six years begin to run, they go on without any interruption or suspension from any subsequent disability. Thus, if a creditor be of sound mind, or a debtor be at home when the debt accrues, and one month afterwards the creditor becomes insane, or the debtor leaves the country, nevertheless the six years go on, and after the end of that time no action can be commenced for the debt. Or if the disability exists when the debt accrues, and some months afterwards ceases. WHEN THE PERIOD OF LIMITATION BEGINS. 295 SO that the six years begin to run when it ceases, and after- wards the disability comes again, it does not interrupt the six years. If, when a debt is due, the debtor is out of the State, the six years do not begin to run. If afterwards he returns to the State, they then begin to run, and, having begun, they continue to run, although he goes out of the State again, and returns no more. In this country, a rational construction has been given to the disability of being out of the State, and its removal ; and it is not understood to be terminated merely by a return of the debtor for a few days, if during those days he was not within reach. If, however, the creditor knew that he had returned, or might have known it by the exercise of reasonable care and diligence, soon enough to have profited by it, this removal of the disability bring the statute into operation, although the return was for a short time only. SECTION VI. WHEN THE PERIOD OF LIMITATION BEGINS. It is sometimes a question from what point of time the six years are to be counted. And the general rule is, that they begin when the action might have been commenced. If a credit is given, this period does not begin until the credit has expired. If a note on time be given, the six years do not begin until the time has expired, including the additional three days' grace; if a bill of exchange be given, payable at sight, then the six years begin after presentment and demand ; but if a note be pay- able on demand, or money is payable on demand, then the limi- tation begins at once, because there may be an action at once. If there can be no action until a previous demand, the limitation begins as soon as the demand is made. If money be payable on the happening of any event, then the limitation begins after that event has happened. If several successive credits are given, as if a note is given which is to be renewed ; or if a credit is given, and then a note is to be given ; or if the credit is longer or shorter, at the purchaser's option, as if it be agreed that a note 296 LIMITATIONS. shall be given at two or four months, then the six years begin when the whole credit or the longer credit has expired. SECTION VII. THE STATUTE DOES NOT AFFECT COLLATERAL SECURITY. It is important to remember that the Statute of Limitations does not avoid or cancel the debt, but only provides that " no action shall be maintained upon it" after a given time. There- fore, it does not follow that no right can be sustained by the debt, although the debt cannot be sued. Thus, if one who holds a common note of hand on which there is a mortgage or pledge of real or of personal property, without valid excuse neglects to sue the note for more than six years, he can never bring an action upon that note ; but the pledge or mortgage is as valid and effectual as it was before ; and, as far as it goes, his debt is secure ; and for the purpose of realizing this security, by fore- closing a mortgage, for example, he may have whatever process is necessary, although he cannot sue the note itself. And the debtor cannot redeem the property pledged or mortgaged except by payment of the debt. ABSTRACT OF THE STATUTES OF LIMITATIONS OF ALL THE STATES. ALABAMA. — ^Judgments of courts of records, twenty years. Actions to recover real property, contracts or writings under seal, actions against sheriffs, coroners, constables, and other public officers, for malfeasance in office, ten years. Trespass to real or personal property, detinue, trover, all promises and writings not under seal, actions on an account stated, actions for the use and occupation of land, actions against sureties of public officers, and sureties of executors, administrators, and guardians, and judg- ments of justices of the peace, six years. Actions to recover money due on open and unliquidated account, the time of accrual of the right of action to be computed from the date of the last item, three years. Assault and battery, false imprisonment, malicious prosecutions, criminal conversation, seduction, breach of promise, and libel and slander, actions against steam- boats begun by attachment, one year. ARKANSAS. — Actions to recover real property, seven years. But persons under legal disabilities may bring their action within three years after the removal of such disability. Judgments, tozjj/^arj. Actions on bonds of executors and administrators, eight years. On official bonds of ABSTRA CT OF STA TUTES OF LIMITA TIONS. 297 sheriffs, coroners, and constables, four years. Promissory notes and otiier instruments in writing, five years. Contracts not in writing, trespass on lands, trover, three years. Actions against sheriffs and coroners except for escape, two years. Actions for crim. con., assault and battery, false imprisonment, slander, actions against sheriffs for escape, one year. In all cases except actions to recover real property, the limitation in regard to persons under disabilities begins to run from the removal of the same. In actions on an account current, the cause of action accrues from the last item proved in the account. Any new promise must be in writing, and signed by the party to be charged. Actions which survive may be brought by and against executors and administrators within one year imxa the death of the party, or the granting letters testamentary or of administration. Any action failing for any cause not affecting the right of action may be recommenced within one year year after such failure. CALIFOHlSriA. — Actions to recover real property, five years. But persons under legal disabilities may begin such action within five years after the removal of such disability. Judgments of courts of record, five years. On contracts, oWigations or liabilities in ^x\ixa.g, four years. Actions on statute liabilities, other than penalties and forfeitures, trespass on real estate, trover, detinue, and replevin, actions in case of fraud, the time beginning to run from discovery of the same, three years. Contracts not in writing, actions against sheriffs, coroners, and constables, for acts done in ofiScial capacity, except for escapes, two years. Actions for statute penalties or forfeitures, libel, slander, assault, battery, false imprisonment; actions against sheriffs and constables for escapes, one year. In actions on mutual, open, and current accounts, the cause of action is deemed to have accrued from the last item proved on either side. The time of limitation is .not to run against persons out of the State. The limitation in case of per- sons under disabilities begins to run from the removal of the same. Actions by representatives within six months from death of creditor, actions against the same within six months after granting letters testamentary or of admin- istration. Disabihties must exist at the time of the accrual of right. COSTjSTECTICTJT. — Actions to recover real property, fifteen years. But persons under legal disabilities may bring such action within five years after removal of the disability. Suits on specialties and promissory notes not negotiable, seventeen years \ and persons under disabilities, within four years after removal of the same. Actions on all simple contracts, book debts, debt on simple contract, contracts in writing not under seal, except notes not negotiable, six years. Persons under disabilities three years after removal of the same. In cases of settlement of partnership, or joint occupancy of real or personal estate or joint accounts, courts will take into consideration all the joint transactions since the time of the last settlement, though more than six years have elapsed since said settlement. Trespass on the case, six years. Except the cases mentioned above, an action founded on any express contract or agreement not reduced to writing, or of 298 LIMIT A TIONS. which there is some memorandum, an action of trespass, or slander, must be brought within three years. Scire facias against garnishee, one year. Suits against railroad companies for damages for loss of life, eighteen months after death. Any action properly begun, and failing for a cause not affecting the right of action, may be recommenced within \.&%, five years. Arrearages of rent, money lent, accounts of merchants and open accounts, three years. Libel and slander, and actions by work- men, etc., for wages, one year. Prescription docs not run against minors and persons under interdiction unless specified by law. MAINE. — Real actions, twenty years. Persons under disabilities, ten years from removal of same. Witnessed promissory notes, tiuenfy years. Debt on contract, and liabilities not under seal, judgments not of record, arrears of rent, assumpsit or case founded on contract, waste, trespass on land, replevin, trover and detinue, six years. Assault and battery, false imprisonment, libeland slander, two years. On mutual and current accounts, action accrues from the last item proved. Limitation in case of persons under disabilities begins to run from removal of the same. After failure of action for any cause not affecting the right, a new action may be begun vvitliin six months. An acknowledgment must be express, and in writing to revive a debt. MASYIiAND. — Twenty years gives title to land. Actions on judg- ments, recognizances, specialties, twelve years, and six years after removal of disabihties. Bonds of executors and administrators, and other ofHcers except sheriffs and constables, twelve years. Sheriffs', coroners', and consta- bles' bonds, yfi/^ j^arj from the date of the bond. Actions of acccant, assumpsit, or on the case, debt on simple contract, for rent in arrear, detinue, ABSTRACT OF STATUTES OF LIMITATIONS. 301 and replevin, trespass for injuries to real or personal property, three years. Slander and trespass to person, one year. In case of persons under disabil- ities, limitation begins to run from tlie removal of the same. MASSACHUSETTS.— Real actions, twenty years. Persons under dis- abilities, within ten years after removal of the same. Witnessed promissory notes by original payee, and bills and notes of a bank, twenty years. Con- tracts not under seal, except judgments of courts of record, replevin, trover, and tort, except as hereafter specified, six years. Assault and battery, false imprisonment, slander, and liljel, two years. On mutual and open account current, cause of action is deemed to have accrued at the time of the last item proved. Persons under disabilities may bring their action within the time limited after the removal of such disabilities. Limitations do not run against persons out of State. Actions by and against an executor or admin- istrator of a deceased person within tzuo years from granting letters testa- mentary or of administration. After failure of an action for any cause not affecting the right of action, a new action may be begun within one year. New promise must be in writing. All other actions not otherwise limited, including those on judgments of courts of record, twenty years. MICHIGAN'. — Real actions, fifteen years. Persons under disabilities may bring action within five years after removal of the same. Contracts not under seal, judgments not of record, actions for arrears of rent, assumpsit or cases founded on any contract or liability, waste, replevin, and trover, six years. Judgments of courts of record, ten years. Trespass on land, assault and battery, false imprisonment, libel and slander, two years. In actions on an account current the cause of action is deemed to have accrued from the date of the last item proved in the account. Limitations in the case of per- sons under disabilities begin to run from the removal of the same. In case of death, actions which survive may be brought by or against executors and administrators within two years after granting letters testamentary or of ad- ministration. After an action fails for any cause not affecting the right, a new action may be begun within one year. Actions against railroad compa- nies for causing death, within two years. MINNESOTA. — Real actions, twenty years. On judgments of courts of record, ten years. Contracts other than judgments, trespass on real estate, trover, detinue, and replevin, fraud, dating from the time of the dis- covery of the same, six years. Actions against sheriffs, coroners, and consta- bles, as such, three years. Libel, slander, assault, battery, and false impris- onment, two years. On mutual and current accounts, the cause of action ac- crues from the date of the last item proved on either side. Persons under dis- abilities other than infancy, within oneyear-3.i\.zr removal of the same, provided the original limitation is not extended more \\-\-3.-a five years, and infants, with- in one year after coming of age. After the failure of any action for a cause not affecting the right, a new action may be begun within one year. Any new promise must be in writing. MISSISSIPPI.— Real actions, ten years. Persons under disabilities at 302 LIMITA TIONS. the time of the accrual of the right, within ten years after the removal of the same. Ox\.)\i&gxa^xit%, seven years. Debt, assumpsit, or case founded on a promissory note, bill of exchange, contract or liability not under seal, waste and trespass on real estate, detinue, trover, and replevin, six years. Actions on an open account, three years. Assault, battery, maiming, false imprison- ment, malicious arrest, slander, and libel, one year. In case of persons under disabilities, limitations begin to run from the removal of the same. Actions by and against executors and administrators within one year from the date of the letters testamentary or of administration. After the failure of any action for a cause not affecting the right of action, a new action may be begun within one year. Any new promise or acknowledgment must be in writing. MISSOXTRI. — Real actions, ten years. Persons under disabilities, three years from the removal of the same, provided the limitation is not extended v!\Cixe.XkiZ.r\.twenty-foiir years iroxrv\}c\i. original accrual of the right. Writ- ings sealed or unsealed, for the payment of money or property, actions on covenants in deeds, ten years. Judgments are presumed to be satisfied in twenty years. Actions on contracts not in writing, trespass on real estate, trover, detinue, and replevin, five years. Actions against sheriffs, coroners, or other officers, in their official capacity, three years. Libel, slander, assault, battery, false imprisonment, and crim. con., two years. Limitations in case of persons under disabilities begin to run from the removal of the same. Any action failing for a cause not affecting the right of action may be brought anew within one year after such failure. Any new promise must be in writing. NEW JERSEY. — Real actions, twenty years. Actions on bonds of executors, administrators, guardians, trustees, receivers, or assignees, twenty years. On judgments, twenty years. On sealed instruments, sixteen years. Trespass, detinue, trover, replevin, debt other than specialty, actions on an account, actions on the case except slander, and actions that concern the trade or merchandize between merchant and merchant, six years. Assault, menace, battery, wounding, and imprisonment, four years. Slander, two years. On sheriff's ho'^A.^ nine years. Constable's hax^A., four years. In case of persons under disability, the limitation begins to run from the date of the removal of the same. Limitations do not run against persons out of the State. NEW HAMPSHIRE. — Real actions, ^wi?«/)'_j'^arjy persons under legal disabilities at the time of accrual of the right, five years from the date of re- moval of the same. On judgments, recognizances, and contracts under seal, twenty years. Trespass to the person and actions for defamatory words, two years J- all other personal actions, six years. Writ of error, three years ■SilX.ec judgment. Scire facias against bail and indorsers of writs, one year. Per- sons under disabilities may bring any personal action within two years -Aizx removal of the same. Any new promise revives a debt. NEW YORK.— Real property, twenty years; persons under disabili- ABSTRACT OF STATUTES OF LIMITATIONS. 303 ties, ten years after removal of the same. Judgments and sealed instru- ments, twenty years. Contracts, obligations, and liabilities, express or implied, other than the above ; trespass, detinue, trover, replevin, crim. con., or other injury to person or rights not arising on contract, six years. Actions against sheriffs, coroners, or constables in their ofiScial capacity, except for an escape, three years. Libel, slander, assault, battery, and false imprisonment, two years. Against sheriffs or other officers for an escape, one year. In actions on an account current, the cause of action is deemed to have accrued from the date of the last item proved on either side. Actions which survive, two years. NEBRASKA. — Real actions, ten years. Bonds of executors, adminis- trators, guardians, and sheriffs, ten years. Specialties, contracts in writing, foreign judgments, yf^^j/^arj. Contracts not in writing, statutory liabilities, except penalties and forfeitures, trespass on real property, trover, detinue, and replevin, four years. Libel, slander, assault and battery, malicious prosecution, false imprisonment, statutory penalties and forfeitures, ow^j^ar. Persons under disabilities may bring action within the time limited after removal of the same. NEVADA. — Real TLCiions, Jive years; persons under disabilities may bring action within the time limited after the removal of the same. ]\^Ag- mGii\.s, Jive years. Contracts in writing, other than judgments, /oarjf^rj. Statutory liabilities, other than penalties and forfeitures, trespass on real estate, trover, detinue, and re:^\e.y\n,-three years. Contracts not in writing, against sheriffs, coroners, and constables in an official capacity, and statu- tory penalties or forfeitures, two years. Libel, slander, assault and battery, false imprisonment, against sheriffs for an escape, two years. Any acknowl- edgment must be in writing. NOSTH CAROLINA. — 'R.&sX s.ciwvis, twenty years ; persons under dis- abilities, three years after removal of the same. Judgments of a court of record, sealed instruments, tenyears. Judgments not of record, and actions by creditors of a deceased person against his representatives, seven years. Bonds of public officers, guardians, executors, administrators, six years. Actions on contracts or liabilities arising out of contracts, actions on statute liabilities, trespass on real property, trover, detinue, and replevin, crim. con., actions against sureties on bonds of executors, administrators, and guardi- ans, three years. Actions against sheriffs, etc., for trespass under color of office, libel, assault, battery, and false imprisonment, actions for escape, against sheriffs and other officers, one year. Slander, six months. Persons under disabilities may bring their action within the time limited after removal of the same, except in case of actions for escape. Actions by and against representatives of deceased persons, one year after death. 'Actions duly begun and failing for any cause not affecting the right of action, may be brought again within one year. New promise must be in writing. OHIO. — Real actions, twenty-one years; persons under disabilities, ten years after removal of the same. Bonds of executors, administrators, guar- 304 LIMIT A TIONS. dians, sheriffs, or other officers, ten years. Specialties and contracts in ^^r\<\n^g, fifteen years. Contracts not in writing, and statutory liabilities, six years. Trespass on real property, trover, replevin, detinue, actions against executors and administrators, four years. Libel, slander, assault, battery, malicious prosecution, and false imprisonment, one year. In case of per- sons under disabilities, limitations begin to run from the removal of the same. Any acknowledgment must be in writing to take the case out of the statute. OREGOir. — Real actions, twenty years. Judgments of record and sealed instruments, ten years. Other contracts, six years. Wasle, trespass on real estate, trover, detinue, and replevin, six years. Actions against sher- iffs, coroners, and constables in official capacity, except for escape, three years. Libel, slander, assault and battery, and false imprisonment, two years. Actions against officers for an escape, one year. In actions on mutual, open, and current account, the cause of action is deemed to have accrued from the last item proved, but when one year shall have elapsed between any of a series of items, they are not to be deemed such an account. Limitations do not run against persons out of the State. Persons under dis- abilities, e.xcept infants, may bring action within one year af :er removal of the same, provided the time is not extended more than five years, and infants one year after attaining their majority. New promise must be in writing. PEHBTSYLVAU'IA. — Real actions, twenty-one years; persons under disabilities, ten years after the removal of the saine. Trespass on real prop- erty, detinue, trover, replevin, actions of account and on the case, except such accounts as concern the trade between merchant and merchant, and actions of debt other than specialty, six years. Judgments and mortgages, and sealed instruments are presumed paid after twenty years, unless such presumption is positively rebutted. Trespass to the person, two years. Slander, one year. After failure of an action for a cause not affecting the right of action, a new action may be brought within one year. Limitations, in case of persons under disabilities, begin to run from the removal of the same. E.HODE ISLAHD. — Actions to recover real property are not limited, but twenty years of quiet, uninterrupted, and adverse possession is a good evidence of title. Slander, one year. Trespass, fotir years. Actions of account, except such as concern the trade or merchandise between merchant and merchant ; actions on the case, except for slander, debt founded on contract, except specialty, actions for arrearage of rent, actions of detinue and replevin, six years. Debt other than the preceding and covenant, twenty years. In case of persons under disabilities, the limitation begins to run from the rem.oval of the same. Actions by and against executors and administrators, one year, after granting letters testamentary or of administration. Actions failing for a cause not affecting the right of action, one year from such failure. ABSTRACT OF STATUTES OF LIMITATIONS.' 305 SOUTH CABOLIITA. — Real actions, twenty yeaj-s; persons under disabilities, ten years from removal of the same. Judgments, tn'cnty years. Sealed instruments, twenty years. Other contracts, statutory liabilities, except forfeitures and penalties, trespass on real estate, trover, detinue, and replevin, six years. Actions against sheriffs, coroners, constables in an official capacity, except for escapes, and actions for penalties and forfeitures, three years. Libel, slander, assault, battery, and false imprisonment, two years. Actions against officers for an escape, one year. In actions of account, the limitation begins to run from the last item proved on either side. Persons under disabilities, except infants, may bring action within one year .after the removal of the same, provided the time is not extended more than five years; and infants, one year after attaining majority. Where an action is defeated by any technicality, a new action may be brought within one year. TENNESSEE. — Real actions, seven years. Actions against guardians, executors, administrators, sheriffs, clerks, and other public officers, on their official bonds, and actions on judgments, ten years. Use and occupation of land, rent, actions against the sureties of guardians, executors, administra- tors, sheriffs, clerks, and other public officers; actions on other contracts not mentioned, six years. Injuries to real or personal property, detinue, and trover, three years. Libel, injuries to person, false imprisonment, malicious prosecution, seduction, breach of promise, and statutory penalties, one year. Slander, six months. A new action may be begun within one year after the reversal or arrest of judgment in the original. Persons under disabilities may bring action within thj'ee years after removal of the same, unless the limitation is less than three years, in which case action must be brought within the time limited after such removal. TEXAS. — Real actions, ten years. Judgments, ten years. Bonds of executors and administrators, four years after their discharge. Contracts in writing, four years. Trespass on real or personal property, detinue, trover, and open accounts, two years. Assault, battery, wounding, imprison- ment, libel, and slander, one year. The death of the debtor arrests the statute one year. Actions failing for a cause not affecting the right of action may be brought again within one year. The limitation in case of persons under disabilities begins to run from the removal of the same. Acknowledgments must be in writing. VERMONT. — 'Kz2\2if:^\on%, fifteen years. Witnessed promissory notes, fourteen years. Judgments and specialties, eight years. Debt on any con- tract, obligation, or liability not under seal, debt for rent, actions of account, assumpsit, or case founded on any contract or liability ; trespass on land, replevin, trover, and detinue, and actions on the case, except libel and slander, six years. Assault and battery, and false imprisonment, three years. Libel and slander, two years. Executors and administrators may bring actions which survive /w(7 j»/^ar.f after death of the party entitled. Actions duly begun and failing by abatement, arrest, or reversal of judgment, may be 20 306 LIMITA TIONS. brought again within one year. Limi;atioiis in case of j^crsons under disa- bihties begin to run from the removal of the same. New promise must be hi writing. VIRGrlETIA. — Real actions, land east of the AlJeghTnies, fifteen years, west of the AUeghanies, ten years ; persons under disabilities, ieii years after removal of the same, provided the whole period of limitation is not more than tliirty years. Contracts and writings under seal, iiventy years. Bonds of indemnity, bonds of executors, administrators, curators, guardians, sheriffs, clerks, or oilier fiduciary or public officers, ten years. Recognizances of bail in civil suits, tJirce years, other recognizances, ten years. Contracts in writing not under seal, and other contracts, actions between partners for settlement and accounts concerning the trade of merchandise between mer- chant and merchant, five years. Actions that do not, survive, one year. Acknowledgments must be in writing. Persons under disabilities may bring actions within the time limited after the removal of their disabilities, provided it is within twenty years from the original accrual of the right. Actions failing by abatement, arrest, or reversal of judgment may be brought again within one year. V7EST VIKGINIA. — Real property, ten years; persons under disabili- ties, yfT/^ vears after removal of the same, provided the whole limitation is not more than twenty years. Bonds of executors, administrators, guardians, sheriffs, or other public officers, /(??i_yi?«rj. Other instruments under seal, made prior to April, 1869, twenty years j made since April, 1S69, ten years. Contracts in writing made prior to April, iS>6% five years; made since April, 1869, ten years. Olher zontxAiiX.?,, five years. Current accounts, three years. Actions on recognizances, other than bail in a civil suit and judgments, ten years. Recognizance of bail in civil suit, three years. All other actions which %\av\\'e^, five years ; which do not survive, one year. WISCOM'SIIiT. — Real actions, twenty years ; persons under disabilities, five years after removal of the same. Judgments of courts of record of the State of Wisconsin and sealed instruments, when the cause accrues within the State, twenty years. Judgments of other courts of record and sealed instruments accruing without the State, ten years. Other contracts, statute liabilities other than penalties and forfeitures, trespass on real property, trover, detinue, and replevin, six years. Actions against sheriiis, coroners, and constables for acts done in their official capacity, except for escapes, three years. Statutory penalties and forfeitures, libel, slander, assault, battery, and false imprisonment, two years. Actions against sheriffs, etc., for escapes, one year. Persons under chsabilities, except infants, may bring action after the disability ceases, provided the period is not extended more \\\-!^Vl five years, and infants one year after coming of age. Actions by representatives of deceased persons, one year from death ; against the same, one year from granting letters testamentary or of administration. New promise must be in writing. WHAT INTEREST IS, AND WHEN IT IS DUE. CHAPTER XXIII. INTEREST AND USURY. 307 SECTION I. WHAT INTEREST IS, AND WHEN IT IS DUE. Interest means a payment of money for the use of money. In most civilized countries the law regulates this ; that is, it declares how much money may be paid or received for the use of money ; and this is called legal interest ; and if more is paid or agreed to be paid than is thus allowed, it is called usurious interest. By interest is commonly meant legal interest ; and by usury, usurious interest. Interest may be due, and may be demanded by a creditor, on either of two grounds. One, a bargain to that effect ; the other, by way of damages for withholding money that is due. Indeed, it may be considered as now the settled rule, that wherever money is withheld which is certainly due, .the debtor is to be regarded as having promised legal interest for the delay. And upon this implication, as on most others, the usage of trade, and the customary course of dealings between the parties, would have great influence. Thus, in New York, it was held, that, where it was known to one party that it v/as the uniform custom of the other to charge interest upon articles sold or manufactured by him after a certain time, the latter was allowed to charge interest accord- ingly. In general, we may say that interest is allowed by law as fol- lows : on a debt due by j udgment of court, it is allowed from the rendition of judgment; and on an account that has been liquidated, or settled, from the day of the liquidation ; for goods sold, from the time of the sale, if there be no credit, and if there be, then from the day when the credit expires ; for rent, from the time that it is due, and this even if the rent is payable other- wise than in money, but is not so paid ; for money paid for another or lent to another, from the payment or loan. 308 INTEREST AND USURY. Interest is not generally recoverable upon claims for unliqui- dated damages, nor in actions founded on tort. By tinliqin- dated damages is meant damages not agreed on, and of an uncertain amount, and which the jury must determine. By toris is meant wrongs, or injuries inilicted. But although inter- est cannot be given under that name, in actions of this sort, juries are sometimes at liberty to consider it in estimating the damages. It sometimes happens that money is due, but not now pay- able ; and then the interest does not begin until the money is payable. As if a note be on demand, the money is always due, but it is not payable until demand ; and therefore is not on interest until demand. But a note payable at a certain time, or after a certain period, carries interest from that time, whether it be demanded or not. The laws which regulate interest and prohibit usury are very various, and are not perhaps precisely the same in any two of our States. Formerly, usury was looked upon as so great an offence, that the whole debt was forfeited thereby. The law now, however, is — generally, at least — much more lenient. The theory that money is like any merchandise, worth what it will bring and no more, and that its value should be left to fix itself in a free market, is certainly gaining" ground. In many States there are frequent efforts so to change the statutes of usury that parties may make any bargain for the use of money which suits them ; but when they make no bargain, the law shall say what is legal interest. And, generally, the forfeiture is now much less than the whole debt. At the close of this chapter will be found a statement of the usury laws of the states. There is no especial form or expression necessary to make a bargain usurious. It is enough for this purpose if there be a sub- stantial payment, or promise of payment, of more than the law allows, either for the use of money lent, or for the forbearance of money due and payable. One thing, however, is certain : there must be a usurious intention, or there is no usury. That is, if one miscalculates, and so receives a promise for more than legal interest, the error may be corrected, the excess waived, WHAT INTEREST IS, AND WHEN IT IS DUE. 309 and the whole legal interest claimed. But if one makes a bar- gain for more than legal interest, believing that he has a right to make such a bargain, or that the law gives him all that he claims, this is a mistake of law, and does not save the party from the effect of usury. It may be well to remark, that the law makes a very wide distinction between a mistake of fact and a mistake of law. Generally, it will not permit a party to be hurt by a mistake of fact ; but it seldom suffers any one to excuse himself by a mis- take of law, because it holds that everybody should know the law, and because it would be dangerous to permit ignorance of the law to operate for any one's benefit. The question has been much discussed, whether the use of the common tables which are calculated on the supposition that a year consists of 360 days, in usurious. In New York, it has been held that it is ; but in Massachusetts, and som.e other States, it is held that the use of such tables does not render the transaction usurious. We think this latter the better opinion. If a debtor requests time, and promises to pay for the forbear- ance legal interest, and as much more as the creditor shall be obliged to pay for the same money, this is not a usurious con- tract. And, even if usurious interest be actually taken, this, although strong evidence of an original usurious bargain and intent, is not conclusive, but may be rebutted by adequate proof or explanation. When a statute provides that a usurious contract is wholly void, such a contract cannot become good afterwards ; and there- fore a note which is usurious, if it be therefore void by law in its inception, is not valid in the hands of an innocent indorsee. But it is otherwise where the statute does not declare the con- tract void on account of the usury. If a note, or any securities for a usurious bargain, be delivered up by the creditor and can- celled, and the debtor thereupon promises to pay the original debt and lawful interest, this promise is valid. New securities for old ones which are tainted with usury are equally void with the old ones, or subject to the same defence. Not so, however, if the usurious part of the original securities be expunged, and not included in the new ; or if the new ones are 3IO INTEREST AND USURY. given to third parties, wlio were wholly innocent of the original usurious transaction. And if a debtor suffers his usurious debt to be sued, and a judgment recovered against him for the whole amount, it is then too late for him to take any advantage of the usury. So, if land or goods be mortgaged to secure a usurious debt, and afterwards conveyed to an innocent party, subject to such mortgage, the latter cannot set up the defence of usury, and thereby defeat an action to enforce the mortgage. Usurers resort to many devices to conceal their usury ; and sometimes it is very difficult for the law to reach and punish this offence. A common method is for the lender of money to sell some chattel, or a parcel of goods, at a high price, the bor- rower paying this price in part as a premium for the loan. In England, it would seem from the reports to be quite common for one who discounts a note to do this nominally at legal rates, but to furnish a part of the amount in goods at a very high val- uation. In all cases of this kind, or rather in all cases where questions of this kind arise, the court endeavors to ascertain the real character of the transaction. Such a transaction is always suspicious, for the obvious reason that one who vv^ants to borrow money is not very likely to desire at the same time to buy goods at a high price. But the jury decide all questions of this kind ; and it is their duty to judge of the actual intention of the par- ties from all the evidence offered. If that intention is substan- tially that one should loan his money to another, who shall therefore, in any manner whatever, pay to the lender more than legal interest, it is a case of usury. " Where the real truth is a loan of money,'' said Lord Mansfield, "the wit of man cannot find a shift to take it out of the statute." If this great judge meant only that, whenever legal evidence shows the transaction to be a usurious loan, the lav/ pays no respect whatever to any pretence or disguise, this is certainly true. But the wit of man does undoubtedly devise many " shifts," Avhich the law cannot detect. There seems to be a general rule in these cases in ref- erence to the burden of proof ; the borrower must first show that he took the goods on compulsion ; and then it is for the lender to prove that no more than their actual value was received or charged for them. WHA T INTEREST IS, AND WHEN IT IS DUE. 3 n If one should borrow stock at a valuation much above the market rate, and agree to pay interest on this value for the use of the stock to sell or pledge, this would be usurious. One may lend his stock, and may, without usury, give the borrower the option to replace the stock, or to pay for it at even a high value, with interest. But, if he reserves this option to himself, the bargain is usurious, because it gives the lender the right to claim more than legal interest. So, the lender may reserve either the dividends or the interest, if he elects at the time of the loan ; but he cannot reserve the right of electing at a future time, when he shall know what the dividends are. A contract may seem to be two, and yet be but one, if the seeming two are but parts of a whole. Thus, if A borrows one thousand dollars, and gives a note promising to pay legal interest for it, and then gives another note for (or otherwise promises to pay) a further sum, in fact for no consideration but the loan, this is all one transaction, and it constitutes a usurious contract. But if there be a loan on legal terms, with no promise or obligation on the part of the borrower to pay any more, this might not be invalidated by a mere understanding that the borrower should, when the money was paid by him, make a present to the lender for the accommodation. And if, after a payment has been made, which discharged all legal obligation, the payer voluntarily adds a gift, this would not be usurious. But in every such case the question for a jury is. What was this additional transfer of money, in fact ; was it a voluntary gift, or was it the payment of a debt .' If an honest gift, it was not usurious ; if a payment, it was usurious. A foreign contract, valid and lawful where made, may be enforced in a State in which such a contract, if made there, would be usurious. But if usurious where it was made, and, by reason of that usury, wholly void in that State, if it is put in suit in another State where the penalty for usury is less, it cannot be enforced under this mitigated penalty; but it is wholly void there also. 312 INTEREST AND USURY. SECTION n. A CHARGE FOR RISK OR FOR SERVICE. It is undoubtedly lawful for a lender to charge an extra price for the risk he incurs, provided that risk be perfectly dis- tinct and different from the merely personal risk of the debtor's being unable to pay. If anything is paid for this last risk, it is certainly usury. So, one may charge for services rendered, for brokerage, or for rate of exchange, and may even cause a domestic loan or discount to be actually converted into a foreign one, so as to charge the exchange; and this would not be usurious. But here, as before, and indeed throughout the law of usury, it is necessary to remember that the actual intention, and not the apparent purpose or form of the transaction, must determine its character. So, if one lends money to be used in business, and lends it upon such terms that he becomes a partner in fact with those who use it, taking his share of the profits, and becoming liable for the losses, this is not usurious. So, if one enters into a partnership, and provides money for its business, and the other party is to bear all the losses, and also to pay the capitalist more than legal interest as his share of the profits, this is not usurious, because there is no loan, if there be in fact a partnership ; for then there is a very impor- tant risk, as he becomes liable for all the debts of the partner- ship. The banks always get more than legal interest by their way of discounting notes and deducting the whole interest from the amount they give. This is perfectly obvious if we take an extreme case; as it a bank discounted a note of a thousand dollars at fifteen years, in Massachusetts, the bank would dis- count the interest of all the fifteen years ; the borrower would receive one hundred dollars, and at the end of fifteen years he would pay back one thousand dollars, which is equivalent to paying nine hundred dollars for the use of one hundred for fifteen years, whereas the legal interest would be but ninety dollars. But this method is now established by usage and sanctioned by law. It should, however, be confined to dis- THE SALE OF NOTES. 313 counts of negotiable pa.per, not having a very long time to run. For the rule is founded upon usage, and the usage goes no further. SECTION III. THE SALE OF NOTES. There are, perhaps, no questions in relation to interest and usury of more importance than those which arise from the sale of notes or other securities. In the first place, there is no doubt whatever that the owner of a note has as good a right to sell it for the most he can get, as he has to sell any goods or wares which he owns. There is here no question of usury, because there is no loan of money, nor forbearance of debt. But, on the other hand, it is quite as certain that if any person makes his own note, and sells that for what he can get, this, while in appearance the sale of a note, is in fact the giving of a note for money. It is a loan and a borrowing, and nothing else. And if the apparent sale be for such a price that the seller pays more than legal interest, or, in other words, if the note bear interest and is sold for less than its face, or is not on interest, and more than interest is discounted, it is a usurious transaction. Supposing these two rules to be settled, the question in each case is, under which of them does that case come, or to which of them does it draw nearest. We are not aware of any general principle so likely to be of use in determining these questions as this : if the seller of a note acquired it by purchase, or if it is his for money advanced or lent by him to its full amount, he may sell it for what he can get ; but if he be the maker of the note, or the agent of the maker, and receives for the note less than would be paid him if only a lawful discount were made, it iS a usurious loan. In other words, the first holder of a note (and the maker of a note is not and cannot be its first holder) must pay to the maker the face of the note, or its full amount. And after paying this, he may sell it, and any subsequent purchaser may sell it as merchandise. The same rule must apply to corporations, and all other bodies or persons who issue their notes or bonds on interest. If sold by brokers for them, for less than the full 314 INTEREST AND USURY. amount, it is usurious. Nor can such notes come into the market free from the taint and the defence of usury, unless the first party who holds them pays for them their full value. But then comes another question. If a note be offered for sale, and be sold for less than its face, and the purchaser sup- poses himself to buy it from an actual holder and not from the maker, can the maker interpose the defence that it was actually usurious, on the ground that the seller was only his agent? I should say that he could not ; that there can be no usury unless this is intended ; and that the guilty intention of one party cannot affect another party who was innocent. I should say, also, that one who, ha\ ing- no interest in a note, indorses or guarantees it for a certain premium, Vvdll be liable for its face ; he does not now add his credit to the value of his property and sell both together, as where he indorses a note which he holds himself, but sells his credit alone. This trans- action I should not think usurious. And if it was open to no other defence, as fraud, for example, and v.as in fact what it purported to be, and not a mere cover for a usurious loan, we know no good reason why such indorser or guarantor should not be held liable to the full amount of his promise. SECTION IV. COMPOUND INTEREST. Compound interest is sometimes said to be usurious ; but it is not so ; and even those cases vvhich speak of it as " savoring of usury" maybe thought to go too far, unless every hard bar- gain for money is usurious. As the authorities now stand, however, a contract or promise to pay money with compound interest cannot, generally, be enforced. On the other hand it is neither wholly void, nor attended with any penaltj-, as it would be if usurious ; but is valid for the principal and simple interest only. Nevertheless, compound interest is sometimes recognized as due by courts of law, as well as of equity ; and sometimes, too, by its own name. Thus, if a trustee be proved to have had the money of the party for whom he is trustee (who is ABSTRA CTS OF USURY LA WS. 3 1 5 called in lav/ his cestui que trust) for a long time, without accounting for it, he may be charged with the whole amount, reckoned at compound interest, so as to cover his unlawful profits. If compound interest has accrued under a bargain for it, and been actually paid, it cannot be recovered back, as money usuriously paid may be. And if accounts are agreed to be settled by annual rests, which is in fact compound interest, or are actually settled so in good faith, the law sanctions this. Some- times, in cases of disputed accounts, the courts direct this method of settlement. Where money due on interest has been paid by sundry instalments, the mode of adjusting the amount which has the best authority, and the prevailing usage in its favor, seems to be this : Compute the interest due on the principal sum to the time when a payment, either alone or in conjunction with preceding payments, shall equal or exceed the interest due on the princi- pal. Deduct this sum, and upon the balance cast interest as before, until a payment or payments equal the interest due ; then deduct again, and so on. ABSTRACTS OF THE USURY LAWS OF THE STATES. These laws are stated from the latest information ; but are constantly undergoing change, and are likely to be so, until restrictions upon interest are abolished, as they now are in some States. ALABAMA. — Legal interest, eight per cent. Usurious interest cannot be recovered, and, if paid, is to be deducted from tlie principal. ARKANSAS. — Legal interest, six per cent. Parties may agree, by con tract, written or verbal, for whatever amount they will. CALIFORETIA. — Legal interest, seven per cent. Ten per cent, on money overdue on any written instrument. CANADA, DOMINION OP. — Legal interest, generally six per cent., with the right to agree on what parties will ; but with exceptions in different provinces, especially as to banks and other corporations, and loans on differ- ent kinds of security. CONNECTICUT. — Legal interest, six per cent., in the absence of any agreement to the contrary, and no more can be recovered. In computing interest, three hundred and sixty days may be considered a year. Money paid for insurance or taxes on property mortgaged to secure a loan, may be recovered if the borrower has agreed in writing to pay the same. DISTRICT OF COLUMBIA. — Legal interest, six per cent. Ten per cent, may be paid on agreement. Any excess forfeits the whole interest. 3i6 INTEREST AND USURY. DELAWARE. — Legal interest, six per cent. Penalty for taking more — forfeiture of tlie money lent ; half to the prosecutor, half to the State. FLOSIDA. — Legal interest, six per cent. But the usury laws are expressly abolished. GEORGIA.— Legal interest, seven per cent. Not exceeding twelve per cent, may be recovered if agreed upon in writing. ILLIWOIS. — Legal interest, six per cent. Parties may agree upon ten per cent, orally, or in writing. If more is agreed on or is taken, only the principal can be recovered. INDIAHA. — Legal interest, six per cent. Ten per cent, may be agreed upon in writing. It may be taken in advance. Excess cannot be recovered, and, if paid, shall be considered as paid on account of the principal. low/:. — Legal interest six per cent. Parties may agree in writing for ten per cent. If contract be for more, the creditor recovers only the princi- pal, and interest at ten per cent, is forfeited to the State. KAKSA3. — Legal interest, seven per cent. Parties may stipulate for any rate not e-xceeding twelve per cent. Contract for more forfeits all inter- est. Usurious payments held to be made on account of principal. KENTUCKY. — Legal interest, six per cent., but eight per cent, may be agreed upon. Extra interest forfeited ; if paid, may be recovered back. LOUISIABTA. — Legal interest, five per cent. Conventional interest shall in no case exceed eight per cent., under penalty of forfeiture of entire interest. Owner of negotiable paper discounted for more than eight per cent., may recover eight per cent. Usurious interest may be recovered back, but must be sued for within twelve months. MAIHE. — Legal interest, six per cent. ; but not to apply to letting cattle, or other similar contracts in practice among farmers ; nor to maritime con- tracts, as bottomry or insurance ; and not to course of exchange in practice among merchants. Excessive interest not recoverable, and, if paid, may be recovered back, if sued for within a year. MAE.YLAND. — Legal interest, six per cent. Excess forfeited. MASSACHUSETTS.— Legal interest, six per cent. Any rate of interest or discount may be made by agreement; but if greater than six per cent., it must be in writing. MICHIGAN. — Legal interest, seven per cent. Parties may agree in writing upon any rate not exceeding ten per cent. If more interest is agreed for, only legal interest recoverable. MINNESOTA. — Legal interest, seven per cent. Parties may agree in writing for more, but agreement not valid for any excess over twelve per cent. Interest on judgments, six per cent. MISSISSIPPI. — Legal interest, six per cent. Parties may agree in writing for ten per cent. If more be taken or agreed for, the excess is for- feited. MISSOURI. — Legal interest, six per cent. ; but parties may agree in writ- ing for any rate not to exceed ten per cent. If more be taken or agreed for, ABSTRA Crs OF USUR Y LA WS. 3 j 7 the creditor recovers only the prhicipal, and interest at ten per cent, is for- feited to the State. Parties may contract in writing for the payment of interest upon interest ; but the interest shall not be compounded oftener than once a year. NEEHASKA. — Legal interest, seven per cent. Parties may agree on any rate not exceeding ten per cent, in advance. On proof of illegal inter- est, pLiintiff shall recover only principal. lii'EVADA. — Legal interest, ten per cent. But parties may agree in writing for any rate. NEW HAMPSHIBE.— Legal interest, six per cent. A person re- ceiving more forfeits threefold the excess ; but contracts are not invalidated by securing or taking more. Exceptions as to contracts of farmers and merchants as in Maine. HEW JERSEY. — Legal interest, six per cent. ; on usurious contract, principal only can be recovered. NEW YORK. — Legal interest, six per cent. A contract for more than legal interest is wholly void. If more than legal interest is paid, it may be recovered back within a year by payer, or within the next three years by the overseers of the poor. No corporation can interpose the defence of usury; nor can a joint-stock company having the powers of a corporation. NORTH CAROLINA.— Legal interest, six per cent. Eight per cent, may be recovered for loan of money by written agreement. On usurious contracts no interest is recoverable. OHIO. — Legal interest, six per cent. Any rate not exceeding eight per cent, may be agreed upon in writing. Excess cannot be recovered. Eanks can charge or take by discount only six per cent. Railroad companies may borrow money at seven per cent. OREGON. — Legal interest, ten per cent. Parties may agree for one per cent, a month. Usurious interest works a forfeiture of the principal and interest. PENNSYLVANIA.— Legal interest, six per cent. Excess cannot be recovered. If paid, may be recovered back if sued for within six months. RHODE ISLAND. — Legal interest, six per cent. Any higher rate may be agreed upon. SOUTH CAROLINA.— Legal interest, seven per cent. More than legal interest may be agreed upon by the parties. TENNESSEE. — Legal interest, six per cent. Parties may agree in writing for more. TEXAS. — Legal interest, eight per cent. Parties may agree in writing for twelve per cent. If more than this is agreed for, no interest can be recovered. VERMONT. — More than six per cent, prohibited ; and a person paying more may recover excess ; but this is not to extend to usage of farmers or merchants, as in Maine and New Hampshire. VIRGINIA. — Legal interest, six per cent. All contracts for a greater rate void. Excess, if paid, may be recovered back. 3 1 8 THE LA IV OF PLA CE. "WEST VIRGINIA.— Legal interest, six per cent. Contracts for a greater amount are void as to the excess. ■WISCONSIir. — Legal interest, seven per cent. ; but parties may agree upon a rate not exceeding ten per cent. Usurious contracts are void, and if excessive interest be paid, treble the amount thereof may be recovered back. CHAPTER XXIV. THE LAW OF PLACE. SECTION \. WHAT IS MEANT BY THE LAW OF PLACE. If either of the parties to a contract is not at home, or if both are not at the same home, when they enter into the con- tract, or if it is to be executed abroad, or if it comes into litiga- tion before a foreign tribunal, then the rights and the obligations of the parties may be affected either by the law of the place of the contract, or by the law of the domicil or home of a party, or by the law of the place where the thing is situated to which the contract refers, or by the law of the tribunal before which the case is litigated. All of these are commonly included in the Latin phrase lex loci, or, as the phrase is trans- lated, the Law of Place. It is obvious that this law must be of great importance wherever citizens of distinct nations have much commercial intercourse with each other. In this country it has an especial and very great importance, from the ,circumstance that, while the citizens of the whole country have at least as much business connection with each other as those of any other nation, our country is composed of thirty-eight separate and independent sovereignties, which are, for most commercial purposes, regarded by the law as foreign to each other. SECTION II. THE GENERAL PRINCIPLES OF THE LAW OF PLACE. The general principles upon which the law of place depends are four. First, every sovereignty can bind, by its laws, all per- GENERAL PRINCIPLES OF THE LA \V OF PLACE. 3 rg sons and all things within the limits of the State.' Second, no law has any force or authority of its own, beyond those limits. Third, by the comity or courtesy of nations, — aided in our case as to the several States, by the peculiar and close relation between the States, and for some purposes by a constitutional provision, — the laws of foreign States have a qualified force and influence. The fourth rule is perhaps that of the most frequent appli- cation. It is, that a contract which is not valid where it is made is valid nowhere else ; and one which is valid where it is made is valid everywhere. Thus a contract made in IVEassachusetts, and there void because usurious, was sued in New Hampshire and held to be void there, although the law of New Hampshire would not have avoided it if it had been made there. But courts do not take notice of foreign revenue laws, and will enforce foreign contracts made in violation of them. If contracts are made only orally, where by law they should be in writing, they cannot be enforced elsewhere where writing is not required ; but if made orally where writing is not required, they can be enforced in other countries where such contracts should be in writing. The rule, that a contract which is valid where it is made is valid everywhere, is applicable to contracts of mar- riage As contracts relate either to movables or immovables, or, to use the phraseology of our own law, to personal property or to real property, the following distinction is taken. If the contract refers to personal property (which never has a fixed place, and is therefore called, in some systems of law, movable property), the place of the contract governs by its law the construction and effect of the contract. But if the contract refers to real property, it is construed and applied by the law of the place where that real property is situated, without reference, so far as the title is concerned, to the law of the place of the contract. Hence, the title to land can only be given or received as the law of the place where the land is situated requires and determines. And it has been said that the same rule may properly apply to all other local stock or funds, although of a personal nature, or so made by the local law, such as bank stock, insurance stock, 320 THE LA W OF PLA CE. manufacturing stock, railroad shares, and other incorporeal property, owing its existence to, or regulated by peculiar local laws ; and therefore no effectual transfer can be made of such property, except in the manner prescribed by the local regula- tions. As to the capacity of a person to enter into contracts, it is undoubtedly the general rule, that this is determined by the law of his domicil ; and whatever that permits him to do he may do anywhere. SECTION in. THE PLACE OF THE CONTRACT. A CONTRACT is made zvhen both parties agree to it, and not before. It is therefore made zvlwrc both parties agree to it, if this is one place. But if the contract be made by letter, or by separate signatures to an instrument, the contract is then made where that signature is put to it, or that letter is written, which in fact completes the contract. But this rule is subject to a very important qualification, when the contract is made in one place, and is to be performed in another place ; for then, in general, the law of this last place must determine the force and effect of the contract, for the obvious and strong reason, that parties who agreed that a certain thing should be done in a certain place intended that a thing should be done there, which was lawful there, and therefore bargained with refer- ence to the laws of the place, not in which they stood, but in which they were to act. This principle has been applied to an ante-nuptial contract, and it was held, that when parties marry in reference to the laws of another country as their intended domicil, the law of the intended domicil governs the construction of their marriage contract as to the rights of per- sonal property. But, for many commercial transactions, both of these rules seem to be in force ; or rather to be blended in such a way as to give the parties an option as to what shall be the place of the contract, and what the rule of law which shall apply to it. Thus, a note written in New York, and expressly payable in New York, is, to all intents and purposes, a New York note ; and if more DOMICIL. 321 than seven per cent, interest was promised, it wouldrbe usurious, whatever was the domicil of the parties. If made in New York, and no place of payment is expressed, it is payable and may be demanded anywhere, but would still be a New York note. But if made in New York, but expressly payable in Boston (where any amount of interest may be agreed for), and promised to pay ten per cent, interest, when payment of the note was demanded in Boston, the promise of interest would be held valid. So, if the note were made in New York, payable in Boston, and prom- ising to pay ten per cent, interest, it would not be usurious. In other words, if a note is made in one place, but is payable in another, the parties have their option to made it bear the interest which is lawful in either place. If the contract be entered into for money, and is made in one place but is payable at another place on a day certain, and no interest be stipulated, and payment be delayed, interest by way of damages shall be allowed, according to the law of the place of payment, where the money may be supposed to have been required by the creditor for use, and where he might be supposed to have borrowed money to supply the deficiency thus occurring, | and to have paid the rate of interest of that country. If a note made in New York and payable in Massachusetts were demanded in Massachusetts and unpaid, and afterwards put in suit in Mas- sachusetts, and personal service made on the promisor there, I should say that any interest which it bore should be recovered, provided it were lawful in Massachusetts. And indeed, generally, that such a note, being made in good faith, might always bear any interest lawful where it was payable. But a note made in a State where the law permitted only a low interest, and intended in fact to be paid in that State, but written payable in some State permitting higher interest, merely to get this higher inter- est, could not by this trick escape the usury laws of the State where it was made, and get the higher interest. SECTION IV. DOMICIL. It is sometimes very important to determine where a person has his domicil, or Home. In general, it is his residence ; or - 21 322 THE LA W OF PLA CE. that country in which he permanently resides. He may change it by a change of place both in fact and intent, but not by either alone. Thus, a citizen of New York, going to London and remaining there a long time, but without the intention of relin- quishing his home in New York, does not lose that home. And, if he stays in New York, his intention to live and remain abroad does not affect his domicil until he goes in fact. He may have his legal domicil in one place and yet spend a very large part of his time in another. Eut he cannot have more than one domicil. His words or declarations are not the only evidence of his intent ; and they are much stronger evi- dence when against his interest than when they are in his favor. Thus, one goes from Boston to England. If he goes intending not merely to travel, but to change his residence permanently, and not to return to this country unless as a visitor, he changes his domicil from the day that he leaves this country. Let us suppose, however, that he is still regarded by the assessors as residing in Boston, although travelling abroad, and is heavily taxed accordingly. If he can prove that he has abandoned his original home, he escapes from the tax which he must other- wise pay. Now, his declarations that he has no longer a home here, and that his residence is permanently fixed in England, and the like, would be very far from conclusive in his favor, and could indeed be hardly received as evidence at all, unless they were confirmed by facts and circumstances. But if it could be shown that he had constantly asserted that he was still an American, that he had no other permanent residence, no home but that which he had temporarily left as a traveller, such declarations would be almost conclusive against him. In general, such a question would be determined by all the words and acts, the arrangement of property at home, the length and the char- acter of the residence abroad, and all the acts and circumstances which would indicate the actual intention and understanding of the party. Two cases have occurred in the city of Boston which illus- trate this question. In one, a citizen of Boston, who had been at school in the city of Edinburgh when a boy, and formed a pre- dilection for that place as a residence, and had expressed a DOMICIL. 323 determination to reside there if he ever should have the means of so doing, removed with his family to that city in 1836, declar- ing, at the time of his departure, that he intended to reside abroad, and that, if he should return to the United States, he should not live in Boston. He resided in Edinburgh and vicin- ity, as a housekeeper, taking a lease of an estate for a term of years, and endeavored to engage an American to enter his family for two years as instructor of his children. Before he left Boston he made a contract for the sale of his mansion-house and furniture there, but shortly afterward procured said con- tract to be annulled (assigning as his reason therefor, that, in case of his death in Europe, his wife might wish to return to Boston), and let his house and furniture to a tenant. Held, that he had changed his domicil, and was not liable to taxation as an inhabitant of Boston in 1837. In the other case, a native inhab- itant of Boston, intending to reside in France with his family, departed for that country in June, 1836, and was followed by his family about three months afterwards. His dwelling-house and furniture were leased for a year, and he hired a house for a year in Paris. At the time of his departure he intended to return and resume his residence in Boston, but had not fixed on any time for his return. He returned in about sixteen months, and his family in about nine months afterwards. Held, that he continued to be an inhabitant of Boston, and that he was rightly taxed there during his absence, for his person and per- sonal property. This last case was distinguished from the for- mer by the different intent of the parties upon their departure from home. It is a general rule, that, if one has a domicil, he retains it until he acquires another. Thus, if a seaman, without family or property, sails from the place of his nativity, which may be considered his domicil of origin, although he may return only at long intervals, or even be absent for many years, yet, if he does not, by some actual residence or other means, acquire a domicil elsewhere, he retains his domicil of origin. It seems to be agreed that one may dwell for a consider- able time, and even regularly during a large part of the year. 324 THE LAW OF SHIPPING. in one place, or even in one State, and yet have his domicil in another. A woman marrying takes her husband's domicil, and changes it with him. A minor child has the domicil of his father, or of his mother if she survives his father ; and the surviving parent, with whom a child lives, by changing his or her own domicil in good faith, changes that of the child. And even a guardian has the same power. CHAPTER XXV. THE LAW OF SHIPPING. SECTION I. THE OWNERSHIP AND TRANSFER OF SHIPS. The Law of Shipping may be considered under three divis- ions. First, as to ownership and transfer of ships. Second, as to the employment of ships as carriers of goods, or of passen' gers, or both. Third, as to the navigation of ships. I begin with the first topic. Ships are personal property ; or, in other words, a ship is a chattel ; and yet its ownership and transfer are regulated in this country by rules quite analogous to those which apply to real property. The Constitution of the United States gives to Congress the power to enact laws for the regulation of commerce. In execu- tion of this power, acts were passed in 1792, and immediately after, which followed substantially the Registry and Navigation Laws of England, some of which had been in force about a cen- tury and a half. The English laws were intended to secure English commerce to English men and English ships ; and it was supposed that the commercial prosperity of England was in a great measure due to them. To secure the evidence of the American character of a vessel, the statute of 1792 provides for an exact system of regis- tration in the custom-house. There is no requirement of regis- THE OWNERSHIP AND TRANSFER OF SHIPS. 325 tration. The law does not say that a ship shall or must be registered, but that certain ships or vessels may be ; and, if they are registered, they shall have certain privileges. And the dis- advantage of being without registry operates as eiJectually to make registration universal, as a positive requirement with a heavy penalty could do. The ships which may be registered are those already regis- tered December 31st, 1792, under the act of September, 1789; those built within the United States, and owned wholly by citi- zens thereof ; and those captured and condemned as prizes, or adjudged forfeited by violation of law, if at the time of registry they are owned wholly by citizens of this country. No ship can be registered if an owner or part-owner usually resides abroad, although he is a citizen, unless he is a consul of the United States, or agent for, and a partner in a mercantile house established and doing business here ; nor if the master be not a citizen of the United States; nor if the owner or part- owner be a naturalized citizen, and reside in the country whence he came more than a year, or in any foreign country more than two years, unless he be consul or public agent of the United States. But a ship which has lost the benefits of registry by the non-residence of an owner, in such a case may be regis- tered anew if she become the property of a resident citizen, by bond fide purchase ; nor can a ship be registered which has been, at any time, the property of an alien, unless she becomes the property of the original owner or his represen- tative. Sometimes Congress, by special acts, permits the registra- tion, as an American ship, of a vessel which has become, by purchase, American property. If a registered American ship be sold or transferred, in whole or in part, to an alien, the cer- tificate of registry must be delivered up, or the vessel is forfeited ; but if, in case of a sale in part, it can be shown that any owner of a part not so sold was ignorant of the sale, his share shall not be subject to such forfeiture. As soon as a reg- istered vessel arrives from a foreign port, her documents must be deposited with the collector of the port of arrival, and the owner, or, if he does not reside within the district, the master, 326 THE LA W OF SHIPPING. must make oath that the register contains the names of all persons who are at that time owners of the ship, and at the same time report any transfer of the ship, or of any part, that has been made within his knowledge since the registry ; and also declare that no foreigner has any interest in the ship. If a register be issued fraudulently, or with the knowledge of the owners, for a ship not entitled to one, the register is not only void, but the ship is forfeited. If a new register is issued, the old one must be given up ; but where there is a sale by process of law, and the former owners withhold the register, the Secre- tary of the Treasury may authorize the collector to issue a new one. If a ship be transferred while at sea, or abroad, the old register must be given up, and all the requirements of law, as to registry, etc., must be complied with, within three days after her arrival at the home port. Important exclusive privileges have been granted to regis- tered vessels of the United States. By the statute of 1S17, it is provided, that no merchandise shall be brought from any for- eign country to this, except in American vessels, or in vessels belonging to that country of which the merchandise is the growth. Also, that no merchandise shall be carried from port to port in the United States, by any foreign vessel, unless it formed a part of its original cargo. A ship that is of twenty tons burden, to be emplo3'ed in the fisheries, or in the coasting trade, need not be registered, but must be enrolled and licensed accordingly. If under twenty tons burden, she need only be licensed. If licensed for the fisheries, she may visit and return from foreign ports, having stated her intention of doing so, and being permitted by the collector. And if registered, she may engage in the coasting trade or fishery, and if licensed and enrolled, she may become a registered ship, subject to the regulations provided for such cases. A ship that is neither registered nor licensed and enrolled can sail on no voyage with the privilege or protection of a national character or national papers. If she engages in foreign trade, or the coasting trade, or fisheries, she is liable to for- feiture; and if she have foreign goods on board, must at all THE TRANSFER OF PROPERTY IN A SHIP. 327 events pay the tonnage duties leviable on foi'eign ships. In these days, no ship engaged in honest business, and belonging to a civilized people, is met with on the ocean, without having the regular papers which attest her nationality, unless she has lost them by some accident. SECTION 11. THE TRANSFER OF PROPERTY IN A SHIP. The Statute of Registration provides, that, " in every case of sale or transfer, there shall be some instrument in writing, in the nature of a bill of sale, which shall recite at length the said certificate ; otherwise the said ship or vessel shall be incapable of being registered anew." It follows, therefore, that a merely oral transfer, although for valuable consideration, and followed by possession, gives the transferee no right to claim a new register setting forth his ownership. But this is all. There is nothing in this statute to prevent the property from passing to and vesting in such transferee. It is, however, unquestionably a principle of the maritime law generally, that property in a ship should pass by a written instrument. And as this principle seems to be adopted by the statute, the courts have sometimes almost denied the validity of a merely parol transfer. The weight of authority and of reason is, however, undoubtedly in favor of the conclusion stated by Judge Story, that "the reg- istry acts have not, in any degree, changed the common law as to the manner of transferring this species of property." It would follow, therefore, that such transfer would be valid, and would pass the property. In 1850, Congress, however, passed an act "to provide for recording the conveyances of vessels, and for other purposes." By this statute it was provided " that no bill of sale, mortgage, hypothecation, or conveyance of any vessel or part of any vessel of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and per- sons having actual notice thereof; unless such bill of sale, mortgage, hypothecation, or conveyance be recorded in the office of the collector of the customs where such vessel is registered or 328 THE LA IV OF SHIPPING. enrolled." Then follows an exception in favor of liens by bot- tomry, and in subsequent sections are provisions for recording by the collector, and giving certificates, etc. This statute has no effect, that I perceive, upon oral trans- fers, excepting that, as they cannot be recorded, their operation is limited to the grantors and those who have actual notice. Where the transfer is by bill of sale, the record of this, under the late statute, is notice to all the world. But in most of our States there are already provisions for the record of mortgages of personal property, and the question arises how these are affected by this statute of the United States. I should say that it controlled and superseded the State statute, so as to make that unnecessary and ineffectual ; and therefore a record in the custom-house only would be sufficient, and a record under the State Law would affect only those who had actual knowledge of it. As a ship is a chattel, a transfer of it should be accompanied by a delivery of possession. Actual delivery is sometimes im- possible where a ship is at sea; and the statute of 1850 makes the record of the transfer equivalent to change of possession. If there be no record, possession should be taken as soon as possible ; and prudence would still require the same course in case of transfer by writing and record. By the word " ship," and still more by the phrase "ship and her appurtenances," or "apparel," or "furniture," everything would pass which was distinctly connected with the ship, and is on board of her, and fastened to her if that be usual, and needed for her navigation or for her safety. Kentledge, a valuable kind of permanent ballast, has been held to pass with the ship ; so have a rudder and cordage prepared for a vessel, but not yet attached to her, and not quite finished ; and so would a boat, anchors, etc., generally. But the answer to the question. What is part of the ship.' must always depend somewhat upon the words of the instrument, and upon the circumstances of the case and the intention of the parties. A sale by the decree of any regular court of admiralty, with due notice to all parties, and with proper precautions to protect the interests of all, and to guard against fraud or precipitancy. PART-OWNERS. 329 would undoubtedly be acknowledged by courts of admiralty of every other nation as transferring the property effectually. SECTION III. PART-OWNERS. Two or more persons may become part-owners of a ship, in either of three ways. They may build it together, or join in purchasing it, or each may purchase his share independently of the others. In either case their rights and obligations are the same. If the register, or the instrument of transfer, or other equiv- alent evidence, do not designate specific and unequal pro- portions, they will be presumed to own the ship in equal shares. Part-owners are not necessarily or usually partners. But a ship, or any part of a ship, may constitute a part of the stock or capital of a copartnership ; and then it will be governed, in all respects, by the law of partnership. A part-owner may at any time sell his share to whom he will. But he cannot sell the share of any other part-owner, without his authority. If he dies, his share goes to his representatives, and not to the surviving part-owners. A majority of the part-owners may, generally, manage and direct the employment of the property at their discretion. But a court of admiralty will interfere and do justice between them, and prevent either of the part-owners from inflicting injury upon the others. One part-owner may, in the absence of the rest, and without prohibition from them, manage the ship, as for himself and for them. And the contracts he enters into, in relation to the employment or preservation of the ship, bind all the part-owners in favor of an innocent third party. In general, all the part-owners are liable, each one for the whole amount, for all the repairs of a ship, or for necessaries actually supplied to her, in good faith. If one pays his part of what is due, or even more than his share, and it is agreed be- tween him and the creditor that he shall not be held further, still, if the others do not pay, he must pay, unless there is a 330 THE LA W OF SHIPPING. better consideration for the promise not to call on him than his merely paying a part of what he was legally bound to pay ; for where a man is bound to pay all, his paying a part is no consid- eration whatever for a promise to him. If he had a discharge under seal, it might protect him at law, but would not in admi- ralty, unless the circumstances of the case made this just. If it can be clearly shown, however, that especial credit was given, and intended to be given, to one part-owner personally, to the exclusion of the others, then the others cannot be holden. If the goods were charged to "ship" so and so, or to "ship and owners," this would tend strongly to show that it was intended to supply the goods on the credit of all the owners. If charged to some one owner alone, this would not absolutely prove that credit was intentionally given to him exclusively. But it would raise a presumption to that effect which could be rebutted only by showing that no other owner v/as known ; or by some other evidence which disproved the intention of dis- charging the other part-owners. So, if the note, negotiable or otherwise, of one part-owner were taken in payment, if the promisor refused to pay, the others would be liable, unless they could shov/ a distinct bargain by which they were exonerated. Commonly, the " ship's husband," as the agent of all the owners for the management of the ship has long been called, is one of the part-owners. He may be appointed in writing or otherwise. His duties are, in general, to provide for the com- plete equipment and repair of the ship, and take care of her while in port ; to see that she is furnished v.-ith all regular and proper papers ; to make proper contracts for freight or passage, and collect the receipts and make the disbursements proper on these accounts. For these things he has all the necessary powers. But he cannot, without special power, insure for the rest, nor buy a cargo for them, nor borrow money, nor give up their lien on the cargo for the freight, nor delegate his authority. Where he acts within his powers, a ship's husband binds all his principals, that is, all the part-owners. But a third party may deal with him on his personal credit alone ; and if the part-owners, believing this, and authorized to believe it by any THE CONTRACT OF BOTTOMRY. 331 acts or words of the third party, settle their accounts with the ship's husband accordingly, this third party cannot now estabr lish a claim against them to their detriment. If a ship's husband is not a part-owner, all the part-owners are liable to him, each for the whole amount. If he is a part-owner, each' of the others is liable to him for his share of the expense incurred. The "ship's husband" is called in the Statutes of the United States the "managing owner." SECTION IV. THE LIABILITY OF MORTGAGEES. A MORTGAGEE of a ship, who is in possession, is, in general, liable for supplies, repairs, etc., in the same way as an owner. But if he has not taken possession, he is not liable for supplies or repairs merely on the ground that his security is strength- ened by whatever preserves or increases the value of the vessel. Nor can he be made liable, except by some act or words of his own, which show that credit was properly given to him, or that he has come under a valid engagement to assume this responsibility. SECTION V. THE CONTRACT OF BOTTOMRY. By this contract, a ship is hypothecated (which means pledged) as security for money borrowed. The form of this contract varies in different places, and, indeed, in the same place. Its essentials are : — First, that the ship itself is bound for the payment of the money. Second, that the money is to be repaid only in case the ship performs a certain voyage, and arrives at its destined termination in safety ; or, as it is some- times provided in modern bottomries, in case that the ship is in safety on a certain day ; therefore, if the ship is lost before the termination of the voyage or the expiration of the period, no part of the money is due, or, as is sometimes said, the whole debt is paid by the loss. As the lender thus consents that the repayment of the money shall depend upon the safety of the ship, he has a legal right to charge "marine interest," which means as much more than legal interest as will serve to cover his risk. 332 THE LA W OF SHIPPING. The lender may require, and the borrower pay, this marine interest, which may be much more than lawful interest, on a bottomry bond, without usury. If the interest be not expressed in the contract, it will generally be presumed to be meant and included in the sum named as principal. If, by the contract, the lender takes more than legal interest and yet the money is to be paid to him whether the ship be lost or not, this is not a contract of bottomry, and it is subject to all the consequences of usury. But the lender may take security for his debt and marine interest, additional to the ship itself, provided the security is given, like the ship itself, to make the payment certain when it becomes due by the safety of the ship, but is wholly avoided if the ship be lost ; for then the lender takes the risk of losing the whole, principal and interest, by the loss of the ship, and may therefore charge more than simple interest. The most common contracts of bottomry are those entered into by the master in a foreign port, where money is needed and cannot otherwise be obtained. Therefore the security goes with the ship, and the debt may be enforced, as soon as it is payable, against the ship, wherever the ship may be. But in this country, these contracts are frequently made by the owner himself, in the home port. And sometimes they are nothing else than contrivances to get more than legal interest. Thus, if A lends to B ^20,000 on B's ship for one year, at fifteen pei" cent, interest, conditioned that, if the ship be lost, the money shall not be paid, and the lender insures the ship for three per cent., he gets twelve per cent, interest, which may be much more than the legal interest, and yet incurs no risk. If such a contract were obviously and certainly merely colorable, and only a pretence for getting usurious interest, the courts would probably set it aside ; but it might be difficult to show this. If the money is payable at the end of a certain voyage, and the owner or his servant, the master of the ship, terminate the voyage sooner, — either honestly, from a change in their plan, or dishonestly, by intentional loss or wreck, — the money becomes at once due. EMPLOYMENT OF A SHIP BY THE OWNER. 333 A bottomry bond made abroad would override all other liens or engagements, except the claim for seamen's wages, and the lien of material men for repairs, and supplies indispensable to the safety of the vessel. The reason is, that a bottomry bond is supposed to be made from necessity, and to have provided the only means by which the ship could be brought home. For the same reason, a later bond is sustained as against an earlier, and the last against all before it. The lien of bottomry depends in no degree on possession, for the ship may go all over the world with the bottomry security attached to her ; but the lender ought to collect the sum due, and so discharge the bond as soon as he conveniently can ; and therefore an unreasonable delay in enforcing it will destroy the lien ; and any connivance by the lender at any fraud on the part of the master avoids the bond entirely. SECTION VI. THE EMPLOYMENT OF A SHIP BY THE OWNER. An owner of a ship may employ it in carrying his own goods, or those of another. He may carry the goods of others, while he himself retains the possession and direction of the ship ; or he may lease his ship to others, to carry their goods. In the first case, he carries the goods of others 07i freight ; in the second, he lets his ship by charter-party. We shall con- sider first the carriage of goods on freight. He may load his ship as far as he can with his own goods, and then take the goods of others to fill the vacant space ; or he may put up his ship as "a general ship," to go from one stated port to another, and to carry the goods of all who offer. It may be remarked, that the word " freight " is used in different ways ; sometimes to designate the goods or cargo that is carried ; sometimes to denote the money which the shipper of the goods pays to the owner of the ship, for their transporta- tion. Not unfrequently, when the word is used in this latter sense, the word " money " is added, and the phrase " freight- money " leaves no question as to what is meant. Sometimes a ship-owner who lets the whole burden of his ship to another 334 THE LA W OF SHIPPING. is said to carry the shipper's goods on freight. But the most common meaning of the word, especially in law proceedings, is the money earned by a ship not chartered for the transportation of the goods ; and in this sense we shall use it. Nearly the whole law of freight grows out of the ancient and universal principle that the ship and the cargo have reciprocal duties or obligations towards each other, and are reciprocally pledged to each other for the performance of these duties. In other words, not only is the owner of the ship bound to the owner of the cargo, as soon as he receives it, to lade it properly on board, take care of it while on board, carry it in safety (so far as the seaworthiness of the ship is concerned) to its destined port, and there deliver it, all in a proper way, but the ship itself is bound to the discharge of these duties. That is to say, if, by reason of a failure in any of these particulars, the shipper of the goods is damnified, he may look to the ship-owner for indem- nity ; but he is not obliged to do so,' because he may proceed by proper process against the ship itself. This lien, like that of bottomry, is not dependent upon possession, but will be lost by delay, especially if the vessel passes into the hands of a pur- chaser for value without notice. On the other hand, if the ship discharges all its duties, the owner may look to the shipper for the pajanent of his freight ; but is not obliged to do so, because he may keep his hold upon the goods, and refuse to deliver them until the freight is paid. The party who sends the goods may or may not be the owner of them. And he may send them either to one who is the owner ; for whom the sender bought them, or to one who is only the agent of the owner. In either of these cases, the sender is called the consignor of the g(^ods, and the party to whom they are sent is called the consignee. The sending them is called the consigning or the consignment of them ; but it is quite common to hear the goods themselves called the consignment. The rights and obligations of the ship-owner and the shipper are stated generally in an instrument of which the origin is lost in its antiquity, and which is now in universal use among com- mercial nations, with little substantial variety of form. It is called the Bill of Lading. It should contain the names of the EMPLOYMENT OF A SHIP BY THE OWNER. 335 consignor, of the consignee of the vessel, of the master, of the place of departure, and of the place of destination ; also the price of the freight, with primage and other charges, if any there be, and either in the body of the bill or in the margin, the marks and numbers of the things shipped, with sufficient precision to designate and identify them. It should be signed by the master of the ship, who, by the strict maritime law, has no authority to sign a bill of lading until the goods are actually on board. There is some relaxation of this rule in practice ; but it should be avoided. Usually one copy is retained by the master, and three copies are given to the shipper ; one of them he usually retains, another he sends to the consignee with the goods, and the other he sends to the consignee by some other conveyance. The delivery of the goods promised in the bill is to the con- signee, or his assigns ; and the consignee may designate his assigns by writing on the back of the bill, " Deliver the within- named goods to A B," and signing this order ; or the consignee may indorse the bill with his name only in blank, and any one who acquires an honest title to the goods and to the bill may write over the signature an order of delivery to himself. The consignee has this power, if such be the usage, even if the word " assigns " be omitted. Such indorsement not only gives the indorsee a right to demand the goods, but makes him the owner of the goods. As the bill of lading is evidence against the ship-owner as to the reception of the goods, and their quantity and quality, it is common to say "contents unknown," or "said to contain, " etc. But without any words of this kind, the bill of lading is not con- clusive upon the ship-owner in favor of the shipper, because he may show that its statements were erroneous through fraud or mistake. But the ship-owner, or master, is bound much more strongly by the words of the bill of lading, in favor of a third party, who has bought the goods for value and in good faith, on the credit of the bill of lading. In a case which occurred in New York, the court said, that, as between the shipper of the goods and the owner of the vessel, a bill of lading may be explained or corrected as far as it is a receipt ; that is, as to the 336 THE LA W OF SHIPPING. quantity of the goods shipped, and the like ; but as between the owner of the vessel and an assignee of the bill, for a valuable consideration, paid on the strength of the bill of lading, it may not be explained or corrected ; because the master, by signing the bill, authorizes the purchaser to believe the goods are what the bill says they are. The law-merchant gives to the ship, as we have seen, a lien on the goods for the freight. The master cannot demand the freight without a tender of the goods at the proper time, in the proper way, to the proper person, and in a proper condition ; but then the consignee is not entitled to the goods without pay- ing freight. The law gives this lien, whether it be expressed or not. But it may be expressly waived. The bill of lading, or other evidence, may show the agreement of the parties that the goods should be delivered first, and the freight not be payable until a certain time afterwards ; and such an agreement is in general a waiver of the lien. Nevertheless, if it seemed that the ship-owner did not intend to give up his security on the goods, a court of admiralty would so construe such an agreement as to give the consignee pos- session of the goods, for a temporary purpose, as to ascertain their condition, or, possibly, that he might offer them in the market, and by an agreement to sell raise the means of paying the freight ; and yet would preserve for the master his security upon the goods for a reasonable time, unless, in the meantime, they should actually become, by sale, the property of a bond fide purchaser. The contract of affreightment is entire ; therefore no freight is earned unless the whole is earned, by carrying the goods quite to the port of destination. If by wreck, or other cause, the transportation is incomplete, no absolute right of freight goes out of it. We say no absolute right, because a condi- tional right of freight does exist. To understand this we must remember, that, as soon as the ship receives the goods, it, on the one hand, comes under the obligation of carrying- them to their destination, and on the other, at the same time or on breaking ground and beginning the voyage, acquires the right of so carrying them. Therefore, if a wreck or other interruption EMPLOYMENT OF A SHIP BY THE OWNER. 337 intervenes, the ship-owner has the right of trans-shipping them, and sending them forward in the original sliip or another ship, to the place of their original destination. When they arrive there, he may claim the whole freight originally agreed on ; but if forwarded in the original ship, he can claim no more ; for then the extra cost of forwarding the goods is his loss. If the master or owner of the ship forwards them in another ship from necessity, and at an increased cost, the shipper must pay this increased cost. The ship-owner not only may, but must, send forward the goods, at his own cost, if this can be done by means reasonably within his reach. He is not, however, answerable for any delay thus occurring, or for any damage from this delay. The shipper himself, by his agent, may always reclaim all his goods, at any intermediate port or place, on tendering all his freight ; because the master's right of sending them forward is merely to earn his full freight. If, therefore, the goods are damaged and need care, and the master can send them forward at some time within reasonable limits, and insists upon his right- to do so, the ship- per can obtain possession of his goods only by paying full freight. If, however, the master tenders the goods there to the shipper, and the shipper there receives them, this is held to sever or divide the contract by agreement, and now what is called a freight pro rata itineris, or for that part of the voyage which is performed, is due. This is quite a common transaction. Difficult questions sometimes arise as to what is a reception of the goods by their owner. The rights of the master and of the shipper are apparently opposed to each other, and neither must be pressed too far. The master must not pretend to hold the goods for forwarding, to the detriment of the goods or their value, when he cannot forward them, but merely uses this pre- tence to compel a payment of full freight. And the shipper must not refuse to receive the goods, when the master can do no more with them, and offers their delivery in good faith. If freight for a part of the voyage is payable, the question arises by what rule of proportion shall it be measured. One is purely geographical, and was formerly much used ; that is, the whole freight would pay for so many miles, and the freight for 22 ■ 338 THE LA W OF SHIPPING. a part must pay for so many less. Another is purely commer- cial. The whole freight being a certain sum for the whole dis- tance, what will it cost to bring the goods to the place where they are received, and how much to take them thence to their original destination. Let the original freight be divided into two parts proportional to these, and the first part is the freight for the part of the voyage through which they were carried, or, as it is called, the freight /;'£> rata, and is to be paid by the ship- per who receives the goods. Neither of these, nor indeed any other fixed and precise rule, is generally adopted in this country. But both courts and merchants seek, by combining the two, to ascertain what proportion of the increase of value expected from the intended transportation has been actually conferred upon the goods by actual partial transportation, and this is to be taken as the freight that is due pro rata itineris. If the bill of lading requires delivery to the consignee or his assigns," he or they paying freight," — which is usual, — and the master delivers the goods without receiving freight, which the consignee fails- to pay, the master or owner cannot in the absence of express contract fall back on the consignor and make him liable, unless he can show that the consignor actually owned the goods, or by his words or acts made himself responsible therefor, in which case the bill of lading, in this respect, is nothing more than an order by a principal upon an agent to pay money due from the principal. Under the usual bill of lading the goods are to be delivered to the consignee or his assigns on the payment of freight. If goods are accepted under this bill of lading, the party receiving them, whether the consignee or his assignee, becomes liable for the freight. If the master delivers goods to any one, saying that he shall look to him for the freight, he may demand the freight of him unless that person had the absolute right to the goods without payment of freight ; which must be very seldom the case. If the consignee is not liable for the freight, his indorse- ment of the bill of lading does not make him so. And if the consignee is liable, and the goods are received by any one only as agent of the consignor, this agent does not thereby become liable. EMPLOYMENT OF A SHIP BY THE OWNER. 335 If freight be paid in advance, and not subsequently earned, it must be repaid, unless it can be shown that the owner took a less sum for ready cash than he would otherwise have had, and for this or some other equivalent reason the money paid was as a final settlement, and was to be retained by the owner at all events. If a consignee pay more than he should, he may recover it back, if paid through ignorance or mistake of fact ; but not if, with full knowledge of all the facts, he was ignorant or mistaken as to the law. If one sells his ship after a voyage is commenced, he alone can claim the freight of the shipper of goods, although by the contract of sale the seller is to pay it over to the pur- chaser. A mortgagee of a ship who has not taken posses- sion, has not, in general, any right to the freight, unless this is specially agreed. Neither has a lender on a bottomry bond. No freight, of course,' can be earned by an illegal voyage, as the law will not enforce any illegal contract, or sanction any illegal conduct. The goods are to be delivered, by the bill of lading, in good condition, "excepting the dangers of the seas," and such other risks or perils as may be expressed. If the goods are dam- aged to any extent by any of these perils, and yet can be and are delivered in specie (that is, if the goods are actually deliv- ered although hurt or spoilt, as corn or hides although rotten, flour although wet, fish although spoilt), the freight is payable. The shipper or consignee cannot abandon the goods for the freight, if they remain in specie, although they may be worthless ; for damage caused by an excepted risk is his loss, and not the loss of the owner. If they are lost by a risk which the ship-owner does not except in the bill of lading, he is answerable for that loss, and it may be charged in settlement of freight. If they are lost in substance, though not in form, that is, although the cases or vessels are preserved, as if sugar is washed out of boxes or hogsheads, or wine leaks out of casks, by reason of injury sustained from a peril of the sea, though 340 THE LA W OF SHIPPING. the master may deliver the hogsheads or boxes or casks, this is not a delivery of the sugar or of the wine, and no freight is due. If the goods are injured, or actually perish and disappear from internal defect or decay or change, that is, from causes inher- ent in the goods themselves, with no fault of the master, freight is due. But if it can be shown that the loss or injury might have been avoided by the use of proper precautionary measures, and that the usual and customary methods for this purpose have been neglected, the master or ship-owners may be held liable for the damage. If they are lost from the fault of the ship-owner, the master, or crew, the ship-owner must make the loss good ; but in this case may have, by way of offset or deduction, his freight, because the shipper is entitled to full indemnification, but not to make a profit out of this loss. If goods are delivered although damaged and deteriorated from faults for which the owner is responsible, as bad stowage, deviation, negligent navi- gation, or the like, freight is due; the amount of the damage being first deducted. The rules in respect to passage-money are quite analogous to those which regulate the payment of freight. Usually, how- ever, the passage-money is paid in advance. But it is not earned except by carrying the passenger, or pro rata, by carrying him only a part of the way with his consent. And if paid in advance, and not earned by the fault of the ship or owner, it can be recov- ered back. SECTION VII. CHARTER-PARTIES. The owner may let his ship to others, and the written indorsement by which this is done is called by an ancient name, a Charter-Party. The form of this instrument varies consider- ably, because it must express the bargain between the parties, and this of course varies Avith circumstances and the pleasure of the parties. An agreement to make and receive a charter, tbough not itself equivalent to a charter, will, if the pur- poses of the proposed charter are carried into effect, be CHARTER-PARTIES. 341 considered as evidence that such a charter was made and com- pleted. Generally, only the burden of the ship is let, the owner holding possession of her, finding and paying her master and crew and supplies and repairs, and navigating her as is agreed upon. Sometimes, however, the owner lets his ship as he might let a house, and the hirer takes possession, mans, navigates, supplies, and even repairs her. In the latter case, bills of lading are not commonly given by the ship-owner to the hirer ; but if the hirer takes the goods of other shippers, bills of lading are given by him to them ; but in the former, which we have said is much more common, bills of lading are usually given by the ship-owner to the charterer (or hirer), as they are in the case of a general ship. They are then, however, little more than evidence of the delivery and receipt of the goods, for the charter-party is the controlling contract as to all the terms or provisions which it expresses. The master is not authorized to sign bills promising to carry and deliver the goods for less freight than has been stipulated for. And if he signs such bills, and goods are shipped by the charterer, neither the charterer nor any person shipping the goods with a knowledge of the charter-party, could defend on account of the bills of lading, against the owner's claims under the charter-party. There is no particular form required for a charter-party. It should, however, designate particularly the ship, the voyage, the master, and the parties ; should describe the ship generally, and particularly as to her tonnage or capacity; should designate especially what parts of the ship are let, and what parts, if any, are reserved to the owner, or to the master, to carry goods, or for the purpose of navigation ; should describe the voyage, or the period of time for which the ship is hired, with proper par^ ticularity; should set forth the lay-days, the demurrage, the obligation upon either party, to man, navigate, supply, and repair the ship, and all other particulars of the bargain, for this is a written instrument of an important character, and cannot be varied by any external evidence. Finally, it should state, dis^ tinctly and precisely, how much is to be paid for the ship, — 342 THE LA W OF SHIPPING. whether by ton, and if so, whether by ton of measurement or ton of capacity of carriage, or in one gross sum for the whole burden, — and when the money is payable, and how ; that is, in what currency or at what exchange, especially if it be payable abroad. The charter-party" usually binds the ship and freight to the performance of the duties of the owner, and the cargo to the duties of the shipper. But the law-merchant would create this mutuality of obligation if it were not expressed. If the hirer takes the whole vessel, he may put the goods of other shippers on board (unless prevented by express stipula- tion) ; but whether he fills the whole ship or not, he pays for the whole ; and what he pays for so much of the ship as is empty is said to be paid for dead freight ; and if the master brought back the cargo because it could not be disposed of, the owner of the cargo would pay freight for bringing it back, although the char- ter-party said nothing about a return cargo. The freight is calculated on the actual capacity of the ship, unless she is agreed to be of a specified tonnage. If either party is deceived or defrauded by any statement in the charter-party, he has, of course, his remedy against the other party. If a charterer takes the goods of other shippers, payment by one of them to the master or ship-owner is a good defence against the claim of the charterer against him, for so much as the charterer was bound to pay the owner, but no more. The voyage may be a double one ; a voyage out, and then a voyage home ; or a voyage to one port, and thence to another. The question sometimes arises, whether any freight is payable if the ship arrives in safety out, and delivers her cargo there, and is lost on her return with the cargo that represents the cargo out. Of course, the parties may make what bargain they please, and the law respects it ; but in the absence of an agree- ment on this point, the courts would generally consider each voyage, at the termination of which goods are delivered, as a voyage by itself, earning its own freight. As time has become of the utmost importance in com- mercial transactions, both parties to this contract should be punctual, and cause no unnecessary delay ; and for such delay the party injured would have his remedy against the party in CHA R TER-PA R TIES. 343 fault. The charter-party usually provides for so many "lay- days," and for so much "demurrage." Lay-days, or working- days, are so many days which the charterer is allowed, without paying for them, or paying only a small price, for loading or for unloading the vessel. These lay-days are counted from the arrival of the ship at her dock, wharf, or other place of discharge, and not from her arrival at her port of destination, unless other- wise agreed on by the parties ; and the usage of the port is often adverted to, to determine the place and manner of loading. In the absence of any custom or bargain to the contrary, Sun- days are computed in the calculation of lay-days at the port of discharge; but if the contract specifies "working lay-days," Sundays and holidays are excluded. If more time than the agreed lay-days is occupied, it must be paid for; and "demur- rage " means what is thus paid. Usually, the charterer agrees to pay so much demurrage a day. If he agrees only to pay demurrage, without specifying the sum, or if so many working days are agreed on, and nothing more is said, it would, generally, be considered that the number of lay-days determined what was a reasonable and proper delay, and that for whatsoever was more than this the party in fault must pay a reasonable in- demnity. If time be occupied in the repairs of the ship, which become necessary without the fault of the ship-owner or master, or of the ship itself, that is, if they do not arise from her original unseaworthiness, the charterer pays during this time. The charterer or hirer must not abandon the vessel while he can keep her afloat, and suitably provided for the employment and destination for which she was hired ; and the ship-owner must be ready to pay all expenses and damages necessarily incurred for the purpose. But the charterer will not be bound by the charter-party to wait for the repair, unless the vessel can be repaired within a reasonable time. Many cases have arisen where the ship was delayed by differ- ent causes, and the question occurred, which party should pay for the time thus lost. I should say that no delay arising from the elements, as from ice, or tide, or tempest, or from any act of government, or from any real disability of the consignee 344 THE LA W OF SHIPPING. which could not be imputed to his own act, or to his own wrongful neglect, would give rise to a claim on the charterer for demurrage. Demurrage seems essentially due only for the fault or volun- tary act of the charterer ; but if he hires at so much on time, that is, by the day, week, or month, then, if the vessel be delayed by seizure, embargo, or capture, and the impediment is removed, and the ship completes her voyage, the charterer pays for the whole time. If she be condemned, or otherwise lost, this terminates the voyage and the contract. The contract may be dissolved by the parties, by mutual consent, or against their consent by any circumstance which makes the fulfillment of the contract illegal ; as, for example, by a declaration of war, on the part of the country to which the ship belongs, against that to which she was to go. So, either an embargo, or an act of non-intercourse, or a blockade of the port to which the ship was going, may either annul or suspend the contract of charter-party. And we should say they would be held to suspend only, if they were temporary in their terms, and did not require a delay which would be destructive of the purposes of the voyage. In reference to all these points, it is to be understood, that if the parties know or expect the circumstance when they make their bargain, and provide for it, any bargain they choose to make in relation to it would be enforced, unless it required one or other of the parties to do something prohibited by the law of nations, or the law of the country in which the parties resided, and to whose tribunals they must resort. SECTION VIII. GENERAL AVERAGE. Whichever of the three great mercantile interests — ship, freight, or cargo — is voluntarily lost or damaged for the benefit of the others, if the others receive benefit therefrom, they must contribute ratably to the loss. That is to say, such a loss is averaged upon all the interests and property which derive advantage from it. The phrase "general average" is used, GENERAL AVERAGE. 345 because a loss of a part is thus divided among all the other parts, and is sustained by all in equal proportion. This rule is ancient and universal. It would be held to apply to all our inland navigation, whether of river or lake, steam or canvas. There are three essentials in general average without the concurrence of all of which there can be no claim for a loss. First, the sacrifice must be voluntary; second, it must be neces- sary ; third, it must be successful. Or, in other words, there must be a common danger, a voluntary loss, and a saving of the imperilled property by that loss. The loss must not only be voluntary, but, what is indeed implied in its being voluntary, it must be for the purpose and with the intention of saving something else. And this inten- tion must be carried into effect ; for only the interest or property which is actually saved can be called on to contribute for that which was lost. The reason of what has been said must be distinctly under- stood, because the whole law of general average rests upon it. It is simply this : if any man's property be destroyed for the benefit of his neighbors, they who are helped by his loss ought to make up his loss. The law supposes that all who are interested in the ship or the cargo, or any part of either, agree together beforehand, that, if a sacrifice of a part can save the rest, that sacrifice shall be made, without stopping to ask who it is that suffers in the first place ; and that afterwards, if the sacrifice be beneficial to any for whom it was made, such persons shall bear their share of it, by contributions to him whose property was purposely destroyed for their good. And theif contributions shall be in proportion to the value of the property saved for them by the sacrifice. Any loss which comes within this reason is an average loss ; as ransom paid to a captor or pirate; not so, however, if he 'take what he will, and leave the ship and the rest ; for this there is no contribution. So, cutting away bulwarks or the deck, to get at goods for jettison, is an average loss. As is also the cutting away of the masts and rigging, or throwing overboard a boat to relieve the ship, or the loss of a cable and anchor, or either, by cutting the cable to avoid an impending peril. So is 346 THE LA W OF SHIPPING. a damage which, though not intended, is the direct effect and consequence of an act which was intended ; as, where a mast is purposely cut away, and by reason of it water gets into the hold, and damages a cargo of corn, this damage is as much a general average as the loss of the mast. But if a ship makes all sail in a violent gale to escape a lee shore, and so saves ship and cargo, but carries away her spars, etc. ; or if an armed ship fights a pirate or enemy, or beats him off at great loss ; the first is a common sea risk, the second a common war risk, and neither of them is a ground for average contribution. It is not considered prudent to lade goods on deck, because they are not only more liable to loss there, but hamper the vessel, and perhaps make her top-heavy, and increase the com- mon danger for the whole ship and cargo. Therefore, by the general rule, if goods on deck are jettisoned (which old mercan- tile word means cast overboard), they are not to be contributed for. But there are some voyages on which there is a known and established usage to carry goods of a certain kind on deck. This justifies the carrying them there, and then the jettison of them would entitle the owner to contribution. The repairs of a ship are for the benefit of the ship itself But if a ship be in a damaged condition, at a port where she cannot be permanently repaired, and receive there a temporary repair, which enables her to proceed to another port where she may have a thorough repair, and thereby the voyage is saved, the cost of all of the first repair which was of no further use than to make the permanent repair possible, is to be contributed for by ship, freight, and cargo, because all these were saved by it. If a ship put into a port for necessary repair, and receive it, and the voyage is by reason thereof successfully prosecuted, the wages and provisions of the crevjr, from the time of putting away' for the port, the expense of loading and unloading, and every other necessary expense arising from this need of repair, are an average. As to the expenses, wages, etc., during a capture, or a deten- tion by embargo, the claim for contribution is limited to those GENERAL AVERAGE. 347 expenses which are necessarily and successfully incurred in saving or liberating the property. The loss or sacrifice must be necessary or justified by a reasonable probability of its necessity and utility. In former times the law guarded with much care against wanton and unnecessary loss by requiring that the master should formally consult his officers and crew, and obtain their consent before making a jettison. But this rule has passed away, and the practice is almost unknown ; and it has been held that where a consultation is had this merely proves that the jettison was delib- erately made, but does not prove the necessity of it. An "Adjustment of Average" means an account stated, which exhibits accurately all the losses to be contributed for, and all the property or interests bound to contribute, and all the persons entitled to receive contribution, and the amounts they should each receive, and all persons bound to pay contribu- tion, and the amounts they should each pay. It is the master's duty to have an average adjustment made at the first port of delivery at which he arrives. And an adjust- ment made there, especially if this be a foreign port, is generally held to be conclusive upon all parties. For the purpose of this rule, our States are foreign to each other ; as they are indeed for most purposes under the Law of Admiralty, or the Law of Shipping. And we should state the rule to be that an adjust- ment, when properly made, according to the law of the port where it is made, is binding everywhere. But a foreign adjust- ment might doubtless be set aside or corrected, for fraud or gross error. The master has the right of refusing delivery of the goods, until the contribution due from them on general average is paid to him. That is, he cannot hold the whole cargo, if it belong to different consignees, until the whole average is paid ; but he may hold all that belongs to each consignee, until all that is due from that consignee is paid. And the master may retain public property belonging to the United States until the average con- tribution due upon it has been paid. As the purpose of average, and contribution is to divide the loss proportionably over all the property saved by it, the 348 THE LA W OF SHIPPING. whole amount which any one loses is not made up to him, but only so much as will make his loss the same percentage as every other party suffers. Thus, if there be four shippers, and each has on board $S,ooo, and the ship is worth ^15,000, and the freight ^S,ooo, and all the goods of one shipper are thrown over, and everything else saved ; now the whole contributing interest is ^40,000, and the loss, which is ;?5,ooo, is one-eighth of this contributory interest. The shipper whose goods are jettisoned therefore loses one-eighth of his goods, and the remaining seven- eighths are made up to him, by each owner of property saved giving up one-eighth. There are usually in every commercial place persons whose business it is to make up Adjustments. As the losses usually consist of many items, some of which are general average, and some rest on the different interests on which they fell, and as the contributory interests must all be enumerated, and the value of each ascertained according to the general principles of law, and then the average struck on all these items, it is obvious that this must be a calculation requiring great care and skill ; and as the adjustment affects materially persons who may not be pres- ent, nor specially represented, — for all these reasons only those who are known to be competent to the work should be employed to make this adjustment. With us this work is generally done by insurance brokers. SECTION IX. SALVAGE. In the Law of Shipping and the usage of merchants, the word " salvage " has two quite different meanings. If a ship or cargo meets with disaster, and the larger part is destroyed or lost, and a part be saved, that which is saved is called the " salvage." Thus, if a ship be wrecked, and sold where she lies because she cannot be got off, her materials, wood and metal, her spars, sails, cordage, boats, and everything else about her which has any value, constitute the "salvage." And all of this, or the proceeds of it if it be sold by the master, belong to the owner or to the insurer, accordingly as circumstances may indi- cate ; and this question will be considered in the chapter on the Law of Insurance. SALVAGE. 349 Besides this, which is the primary meaning of the word, salvage has quite another signification. By an ancient and uni- versal law, maritime property which has sustained maritime disaster, and is in danger of perishing, may be saved by any person who can save it, whether they are or are not requested to do so by the owner or his agent. And the persons so saving it acquire a right to compensation, and a lien or claim on the property saved for compensation. The persons saving the property are called " salvors ; " the amount paid to them is paid for saving the property, or, as it was called, for the " salvage," meaning at first by this word the act of saving it ; but the habit of paying so much for "salvage" led to understanding by "sal- vage " the money paid. Then it was said, the money was paid as salvage. This is now the more common use of the word. Thus a party bringing a saved vessel in demands " salvage," and estimates the salvage as so much ; and the owners are said to lose so much by salvage, or so much money is charged to salvage, and insurers are said to be liable for salvage, meaning in all these and similar cases the amount paid for saving, or for the act of salvage. This law is not only applicable to all maritime property, but is confined to that ; and is nearly unknown in reference to prop- erty saved from destruction on land. Because this principle is wholly and exclusively maritime, no court but that of Admiralty acknowledges and enforces it. The way in which it is enforced is this. Salvors have a lien on the property saved for their compensation ; that is, they have pos- session of it, and have a right to keep possession of it until their claim be satisfied. For this purpose they bring the ship or goods into the nearest port, and then make their claim of the owner or his agent, if they can find him, and he is within reach. If he cannot be found, or if he refuses what they think proper to demand, they employ counsel who are acquainted with the prac- tice in Admiralty courts, who present to the court in the district where the property is a libel, as it is called in Admiralty law, setting forth the facts, and the demand for salvage. Thereupon the court takes possession of the property, and orders notice to the owners, if possible. The owners thereupon appear, and 350 THE LAW OF SHIPPING. either resist all the demand for salvage, on the ground that no services were performed which entitled the party to salvage, or, admitting the service, they go to trial to determine whether any salvage, and, if so, how much, shall be paid. On this question, evidence and argument are heard, and the court then issues such decree as the case seems to require. Although services were rendered to the ship or cargo, or both, it does not follow that they were salvage services in the legal sense of the word. For certainly every person who helps another at sea does not thereby acquire a right to take posses- sion of the property in reference to which his assistance was given, and carry it into port. To give this right, the property, whether ship or cargo, must have been in the proper and rational sense of the term saved ; that is, there must have been actual disaster and impending danger of destruction ; and from this danger the property must have been rescued by the exer- tions of the salvors, either alone, or working together with the original crew. It is to be noticed, however, that neither the master nor officers nor sailors of the ship that is saved can be salvors, or entitled to salvage. The policy of the law-merchant forbids the holding out such a reward for merely doing their duty. It considers that sailors might be induced to let the vessel get into danger, if they could expect a special reward for getting her out of it. They are already bound by law to do all they possibly can do to save the ship and cargo under all circum- stances. But courts of admiralty have sometimes allowed gratuities to seamen for extraordinary exertions and very meritorious conduct. A passenger may be a salvor of the ship he sails in, because he has no especial duty in regard to it. If the Court of Admiralty find it to be a case for salvage, there are no positive and certain rules which determine how much shall be given, or in what proportions, to the different salvors. In every case the court are governed by the circum- stances of that case ; and even if a ship or cargo be entirely abandoned at sea, or, in maritime phrase, derelict, those who find it and take possession of it, and bring it in, take according to 'their merits, and not one-half, as used to be the rule. More SA'LVAGE. 351 than one-half is very seldom given ; but this has been done in a few extraordinary cases. If the property is not entirely derelict or deserted, and all hope of recovering it by the original crew given up, then less than half is usually given by way of salvage. How much less depends on the circumstances. It may be very little, or nearly half. The court will inquire how much time was lost by the salvors, how much labor the saving of the property required, and, most of all, how much exposure the salvors underwent, or how much danger they incurred. For it is an established rule, that in addition to a fair compensation for time, labor, and loss of insurance (for which see the chapter on Insurance), the court will give a further sum by way of reward, and for the purpose of encouraging others to make similar exertions and incur similar perils to save valuable property. And, in this point of view, all necessary exposure and danger are considered as entitled to liberal reward. If the court have not restored the property to its owners on their giving bonds with sureties to pay the salvage and costs, they order the property sold ; and they may do either of these things at any period of the proceedings. At the close, they decree the whole amount of salvage, and also direct particularly its distribution. A large part, usually about one-fourth, of the whole salvage, is allowed to the owners of the saving ship or ships ; another large part to her master, less parts to the officers, in proportion to their rank, and the residue is divided among the crew, with such discrimination between one and another as greater or less exertions or merit require. The trial is had, and the whole decree and this distribution of the salvage made, by the court alone, without a jury. But the statute of the United States, which gives our courts of Admiralty (which are exclusively United States courts, no State court having any Admiralty power) jurisdiction in Admi- ralty over our inland lakes and rivers, provides that disputed facts shall be tried by a jury, in most cases, at the request of either party. 352 THE LA W OF SHIPPING. SECTION X. THE NAVIGATION OF THE SHIP. I. Of the Powers and Duties of the Master. — ^The mas- ter has the whole care and the supreme command of his vessel, and his duties are co-equal with his authority. He must see to everything that respects her condition ; including her repair, supply, loading, navigation, and unloading. He is principally the agent of the owner ; but is, to a certain extent, the agent of the shipper, and of the insurer, and of all who are interested in the property under his charge. Much of his authority as agent of the owner springs from necessity. He may even sell the ship in a case of extreme necessity ; so he may make a bottomry bond which shall pledge her for a debt ; so he may charter her for a voyage or a term of time ; so he may raise money for repairs, or incur a debt therefor, and make his owners liable. All these, however, he can do only from necessity. If the owner be present, in person or by his agent, or is within easy access, or can be con- sulted, by telegraph or otherwise, without a loss of time which would be seriously injurious, the master has no power to do any of these things unless specially authorized. If he does them in the home port, the owner is liable only where, by some act or words, he ratifies or adopts the act of his master. If in a foreign port, even if the owner were there, he may be liable, on his master's contracts of this kind, to those who neither knew nor had the means of knowing that the master's power was superseded or qualified by the presence of the owner. The master being by the law-merchant the general agent of the owner of the ship, no one dealing with him can be prejudiced by any private or secret limitations to his authority by the owner. Beyond the ordinary extent of his power, which is limited to the care and navigation of the ship, he can go, as we have said, only from necessity. But this necessity must be greater to justify some acts than for others. Thus, he can sell the ship only in a case of extreme and urgent necessity ; that is, only when it seems in all reason impossible to save her, and a sale THE NA VIGA TION OF THE SHIP. 353 is the only way of preserving for the owners or insurers any part of her value. We say " seems ; '" for if such is the appearance at the time, when all existing circumstances are carefully considered and weighed, the sale is not void, if some accident, or cause which could not be anticipated, as a sudden change in the wind or sea, enables the purchaser to save her easily. Several such cases have occurred. So, to justify him in pledging her by bottomry, there must be a stringent and sufficient necessity ; but it may be far less than is required to authorize a sale. It is enough if the money is really needed for the safety of the ship, and cannot otherwise be raised, or not without great waste. So, to charter the ship, there must be a sufficient necessity, unless the master has express power to do this. But the necessity for this act may be only a mercantile necessity ; or, in other words, a certain and considerable mercantile expediency. So, to bind the owners to expense for repairs or supplies, there must also be a necessity for them. But here it is suffi- cient if the repairs or supplies are such as the condition of the vessel, and the safe and comfortable prosecution of the voyage, render proper. So the master — unlike other agents, who have generally no power of delegation — may substitute another for himself, to discharge all his duties, and possess all his authority, if he is unable to discharge his own duties, because, in that case, the safety of the ship and property calls for this substitution. Generally, the master has nothing to do with the cargo between the lading and the delivery. But, if the necessity arises, he may sell the cargo, or a part of it, at an intermediate port, if he cannot tarry it on or transmit it, and it must perish before he can receive specific orders. So, he may sell it, or a part, or pledge (or hypothecate) it, by means of a respondentia bond, in order to raise money for the common benefit. A bond of respondentia is much the same thing as to the cargo that a bottomry bond is as to the ship. Money is borrowed by it, at maritime interest, on maritime risk, the debt to be discharged by a loss of the goods. But it can be made by the master only on even a stronger necessity than that required for bottomry ; 23 354 THE LAW OF SHIPPING. only when he can raise no money by bills on the owner, nor by a bottomry of the ship, nor by any other use of the property or credit of the owner. Indeed, it seems that, when goods are sold by the master to repair the vessel, it is to be considered as in the nature of a forced loan, for v/hich the owner of the vessel is liable to the shipper, whether the vessel arrive or not. The general remark m.ay be made, that a master has no ordinary power, and can hardly derive any extraordinary power even from any necessity, except for those things which are fairly within the scope of his business as master, and during his employment as master. Beyond this he has no agency or authority that is not expressly given him. The owner is liable also for the wrong-doings of the master; but with the limitation which belongs generally to the liability of a principal for the torts of his agent, or of a master for the torts of his servant. That is, he is liable for any injury done by the master while acting as the master of his ship, but not for the wrongful acts which he may do personally v.'hen he is not acting in his capacity of master, although he holds the office at the time. Thus if, through want of skill or care while navi- gating the ship, he runs another down, the owner is liable for the collision. But the owner is not liable if the master embezzles goods which he takes on board to fill his own privi- lege, to have himself all the freight and profit. 2. Of Collision. — The general rules in this country in respect to collision are that the party in fault suffers his own loss and compensates the other party for the loss he may sustain. If neither is in fault, the loss rests where it falls. If both parties are in fault, the loss rests, where it falls, by the rules of the common law, but is equally divided in Admiralty. There are certain rules in regard to sailing, founded on the princi- ple that the ship which can change its course to avoid collision with least inconvenience must do so ; and therefore that the ship that has a fair or leading wind shall give way to one on a wind, or go under her stern ; and if vessels are approaching each other, both having the wind on the beam, or so far free that either may change its course in either direction, the vessel on the larboard tack must give way, and each pass to the right. THE NA VIGA TION OF THE SHIP. 355 The same rule governs vessels sailing on the wind, and approach- ing each other, when it is doubtful which is to the windward. But if the vessel on the larboard tack is so far to windward, that, if both persist on their course, the other will strike her on the lee side, abaft the beam, or near the stern, in that case the vessel on the starboard tack should give way, as she can do so with greater facility, and less loss of time and distance, than the other. Again, when vessels are crossing each other in opposite directions, and there is the least doubt of their going clear, the vessel on the starboard tack should persevere on her course, while that on the larboard tack should bear up, or keep away before the wind. It is also held that steam-vessels are regarded in the light of vessels navigating with a fair wind, and are always under obliga- tions to do whatever a sailing-vessel going free or with a fair wind would be required to do under similar circumstances. Their obligation extends still further, because they possess a power to avoid the collision not belonging to sailing-vessels, even if they have a free wind, the master having the steamer under his com- mand, both by changing the helm and by stopping or reversing the engines. As a general rule, therefore, when meeting a sailing-vessel, whether close-hauled or with the wind free, the latter has a right to keep her course, and it is the duty of the steamer to adopt such precautions as will avoid her. Vessels in tide-ways, or otherwise in danger of collision, should hang out lights, but there is no positive rule or usage requiring the master, always, in the night-time, to keep a light exhibited on his vessel. In each case, whether common pru- dence required of the plaintiffs to have a light, and whether the omission of it am.ounted to negligence, must depend upon the darkness of the night, the number and situation of the vessels in the harbor, and all other circumstances connected with the transaction. This is a question of fact, within the province of the jury. A United States statute requires lights in the case of certain steamboats, and directs where they shall be placed on the vessel. All these rules should be observed, and neglect of them 356 THE LA IV OF SHIPPING. would go far to imply a want of care or skill. But none of these rules are in this country so positive as to bind masters or ship- owners in all cases with the force of law. For any misdeed of the master, for which the owner is liable, this liability is limited in our own country, as well as in many others, to the value of the ship and freight. SECTION XL THE SEAMEN. The law makes no important distinction between the officers, or mates, as they are usually called, and the common sailors. Our statutes contain many provisions in behalf of the seamen, and in regulation of their rights and duties, although the con- tract between them and the ship-owner is in general one of hiring and service. They relate principally to the following points: ist, the shipping articles; 2d, wages; 3d, provisions and subsistence ; 4th, the seaworthiness of the ship ; 5th, the care of seamen in sickness ; 6th, the bringing them home from ■ abroad ; 7th, regulation of punishment. First. Every master of a vessel bound from a port in the United States to any foreign port, or of any ship or vessel of the burden of fifty tons or upwards, bound from a port in one State to a port in any other State, is required to have -shipping articles, which articles every seaman on board must sign, under a penalty of twenty dollars for every person who does not sign, and they must describe accurately the voyage, and the terms on which each seaman ships. Courts will protect seamen against uncertain or catching language, and against unusual and op- pressive stipulations. And the shipping articles ought to declare explicitly the ports of the beginning and of the termination of the voyage. If a number of ports are mentioned, they are to be visited only in their geographical and commercial order, and not revisited unless the articles give the master a discretion. Admiralty courts enforce the stipulations if they are fair and legal, or disregard them if they are otherwise, and exercise a liberal equity on this subject; but courts of common law are more strictly bound by the letter of the contract. The articles SEAMEN. 357 are generally conclusive as to wages ; but accidental errors or omissions may be supplied or corrected by either party, by parol. Second. Wages are regulated as above stated, and also by limiting the right to demand payment in a foreign port to one- third the amount then due, unless it be otherwise stipulated. Seamen have a lien on the ship and on the freight for their wages, which is enforceable in Admiralty. By the ancient rule, that freight is the mother of wages, any accident or misfortune which makes it impossible for the ship to earn its freight destroys the claim of the sailors for wages. The reason is, to hold out to the seamen the strongest possible inducement to enable the ship to carry the goods and earn the freight. Third. Provisions of due quality and quantity must be fur- nished by the owner, and double wages are given to the seamen when on short allowance, unless the necessity be caused by some peril of the sea, or other accident of the voyage. The master may at any time put them on a fair and proper allowance to prevent waste. Foicrth. The owner is bound to provide a^.seaworthy vessel, and our statutes provide the means of lawfully ascertaining her condition at home or abroad, by a regular survey, on complaint of the mate and a majority of the seamen. But this very sel- dom occurs in practice. If seamen, after being shipped, refuse to proceed upon their voyage, and are complained of and arrested, the court will inquire into the condition of the vessel, and if the complaint of the seamen is justified, in a greater or less degree^ v/ill discharge them, or mitigate or reduce their punishment. Fifth. As to sickness, our statutes require that every ship of the burden of one hundred and fifty tons or more, navigated by ten persons or more in the whole, and bound on a voyage without the limits of the United States, and also that vessels of seventy-five tons or more, navigated by six or more persons in the whole, bound from the United States to any port in the West Indies, shall have a proper medicine-chest on board. Moreover, twenty cents a month are deducted from the wages of every seaman to make up a fund for the maintenance of marine hospitals, to which every sick seaman may repair with- 358 THE LAW OF SHIPPING. out charge. In addition to this the general law-merchant requires every ship-owner or m.--.ster to provide suitable medicine, medical treatment, and care, for every seaman who becomes sick, wounded, or maimed, in the service of the ship, at home or abroad, at sea or on shore ; unless this is caused by the miscon- duct of the seaman himself. The right to these things extends to the officers of the ship. Sixth. The right of the seaman to be brought back to his own home is very jealously guarded by our laws. The master should always present his shipping articles to the consul or commercial agent of the United States, at every foreign port which he visits, but is not required by law to do this unless the consul desires it. He must, however, present them to the first boarding officer on his arrival at a home port. And if, upon an arrival at a home port from a foreign voyage, it appears that any of the seamen are missing, the master must account for their absence. If he discharge a seaman abroad with his consent, he must pay to the American consul of the port, or the commercial agent, over and above the wages then due, three months' wages, of which the consul gives two to the seaman, and remits one to the treasury of the United States to form a fund for bringing home seamen from abroad. This obligation does not apply where the seaman is discharged because the voyage is necessarily broken up by a wreck, or similar misfortune. But proper measures must be taken to repair the ship if possible, or to obtain her restora- tion, if captured. And the seamen may hold on for a reasonable time for this purpose, and if discharged before, may claim the extra wages. Our consuls and commercial agents may authorize the dis- charge of a seaman abroad for his gross misconduct, and he then has no claim for the extra wages. On the other hand, if he be treated cruelly, or if the ship be unseaworthy by her own fault, or if the master violate the shipping articles, the consul or commercial agent may direct the discharge of the seaman ; and he then has a right to these extra wages, and this even if the seaman had deserted the ship by reason of such cruelty. They may also send our seamen home in American ships, which are bound to bring them for a compensation not to exceed ten dol- PILOTS. 359 lars each, and the seamen so sent must work and obey as if originally shipped. It is of great importance that the powers and duties of our consuls abroad should be distinctly defined and well known. And Congress has recently enacted an excel- lent statute on this subject. If a master discharges a seaman against his consent, and without good cause, in a foreign port, he is liable to a iine of five hundred dollars, or six months' imprisonment. And a seaman may recover full indemnity or compensation for his loss of time, or expenses incurred by reason of such discharge. Seventh. As to the regulation of punishment, flogging has been abolished and prohibited by law. Flogging means the use of the cat, or a similar instrument, but not necessarily blows of the hand, or a stick or a rope. Desertion, in maritime law, is distinguished from absence without leave, by the intention not to return. This intention is inferred from a refusal to return. If he returns and is received, this is a con- donation (or forgiving) of the offence, and is a waiver of the forfeiture. If he desert before the voyage begins, he forfeits the advanced wages, and as much more ; but he may be apprehended by a warrant of a justice, and forcibly compelled to go on board, and this is a waiver of the forfeiture. By desertion on the voyage, he forfeits all his wages and all his property on board the ship, and is liable to the owner for all damages sustained in hiring another seaman in his place. Desertion, under the statute of the United States on this subject, is a continued absence from the ship for more than forty-eight hours without leave, and there must be an entry in the log-book of the time and circumstance. But any desertion or absence without leave, at a time when the owner has a right to the seaman's service, is an offence by the law-merchant, giving the owner a right to full indemnity. SECTION XII. PILOTS. An Act of Congress authorizes the several States to make their own pilotage laws, and questions under these laws are 36o THE LA W OF SHIPPING. cognizable in the State courts. No one can act as pilot, and claim the compensation allowed by law for the service, unless duly appointed. And he should always have with him his commission, which should always designate the largest vessel he may pilot, or that which draws the most water. If a pilot offers himself to a ship that has no pilot, and that is entering or leaving a harbor and has not already reached certain geo- graphical limits, the ship must pay him pilotage fees, whether his services are accepted or not. As soon as the pilot stands on deck, he has control of the ship. But it remains the mas- ter's duty and power, in case of obvious and certain disability, or dangerous ignorance or error, to disobey the pilot, and dis- possess him of his authority ; but the master should interfere with the pilot only in extreme cases. If a ship neglect to take a pilot when it should and can take one, the owners will be answerable in damages to shippers or others for any loss which may be caused by such neglect or refusal. Pilots are themselves answerable for any damage resulting from their own negligence or default, and have been held strictly to this liability. SECTION XIII. MATERIAL MEN. Maritime law calls by this name all persons employed to repair a ship or furnish her supplies. Such persons, and indeed all who work upon her, ha^'e a lien on the ship for their charges. There is, however, this important distinction. Material men, by Admiralty law, have a lien only on foreign ships, and not on domestic ships. But many of our States have by statute given this lien to m.aterial men on all ships without distinction ; as in New York, Pennsylvania, Massachusetts, Maine, Illinois, Indiana, Missouri, Alabama, and Michigan ; and in Louisiana the same lien e.xists under the general Spanish law. It has been held that such a lien extends beyond mere repairs, — certainly to alterations, and pei'haps to reconstruc- tion, — but not to original building, unless the statute includes ship-building. A laborer, employed in general work by a ship- wright or mechanic, and by him sometimes employed on the COMMERCIAL FORMS. 35 1 vessel, and sometimes elsewhere, gets no lien on the vessel for that part of the labor performed about it. These statute liens take precedence of the claims of all other creditors. It has been said in previous pages, that our States are for- eign to each other for most purposes under the law of Admi- ralty ; and they are so as to the lien of material men. There- fore, in States in which there is no statute on the subject, mate- rial men would have a lien for supplies or repairs for a vessel belonging to any other of our States, but not for a vessel belonging to the State in which the supplies were furnished or the repairs were made. See the chapter on Liens. (91.) Bill of Sale of Vessel, To all to whom, these Presents shall come, Greetinjj : Know ye, that {name of seller) oi the {town or city ayid county where he resides) in the State of owner {if the seller owns only a part of the vessel, here say what part) of the {ship, or what else it is) or vessel called the of the burden of tons,, or thereabouts, for and in consideration of the sum of dollars, lawful money of the United States of America, to me {or us, if more sellers than one) in hand paid, before the ensealing and deliv- ery of these presents, by {name of the buyer) the receipt wliereof I {or we) do hereby acknowledge, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said {name of the buyer) and his executors, administrators, and assigns, the whole (or name the part) of said or vessel, together with the masts, bowsprit, sails, boats, anchors, cables, tackle, apparel, and furni- ture, and all other necessaries thereunto appertaining and belonging. The certificate of the enrollment of which said ' or vessel, is as follows : No. ENROLLMENT. In conformity to an Act of Congress of the United States of America, entitled " An Act for enrolling and licensing Ships and Vessels," etc., passed the l8th of February, 1793 ; and "An Act to regulate the Foreign and Coast- ing Trade on the Northern, North-eastern, and North-western Frontiers of the United States, and for other purposes," passed the 17th of June, 1864, and all the acts of the 7th July, 1838, 29th July, 1850, and 6th May, 1864 {name of the owner) having taken or subscribed the oath required by the said acts, and having sworn that he citizen of 362 THE LAW OF SHIPPING. the United States, and sole owner of the "r vessel, called the of whereof is at present master ; and as he ha citizen of the United States, and that the said or vessel was built at in t'le year 18 , as appears by j\nd having certified that the said vessel has deck, mast , and that her length is feet, her breadth feet, her depth feet, her height feet, and that she measures tons and hundredths. Tonnage. jjj Capacity under tonnage deck, Capacity between decks above tonnage deck, . . Capacity cf enclosure on upper deck, .... Total tonnage, that she has a figure-head {describing it). And the said having agreed to the description and admeasurement above specified, and sufficient security having been given, in conformity wilh the terms of the said acts, the said has been duly enrolled at the port cf Given under my hand and seal of office, at the port of this day of in the year one thousand eight hundred and Collector. To Have and to Hold the said or vessel, and appur- tenances thereunto belonging, to him {or them), the said {name of the buyer) and his {or their) executors, administrators, and assigns, to the sole and only proper use, benefit, and behoof of him {or tiieiii), the said {name of the buyer) and his {or their) executors, admiiiistrators, and assigns forever; and I {or ive) the said {name of the seller) ha and by these pres- ents do promise, covenant, and agree, for myself {or ourselves) and my {or our) heirs, executors, administrators, and assigns, to and with the said {name of buyer) and with his {or their) heirs, executors, administrators, and assigns, to warrant and defend the said or vessel, and all the other before-mentioned appurtenances against the lawful claims and demands of all and every person or persons whomsoever, and that I {or we) ha good right and authority to sell and dispose of the same in manner aforesaid. In Testimony Whereof, The said has hereunto set his hand and seal, this day of one thousand eight hundred and {Signature) (Seal.) Sealed and Delivered in the Presence of COMMERCIAL FORMS. 363 State of ■ss. County. I, a Notary Public in and for the in the County of and State of , do hereby certify, that personally known to me as the same person whose name subscribed to the annexed instrument of writing, appeared before me this day in person, and acknowledged that signed, sealed, and delivered the said instrument or writing as free and voluntary act, for the uses and purposes therein set forth. Given under my hand and notarial seal, this day of A.D. 18 Notary Public. (92.) Mortgage of a Vessel. Enow all Men by these Presents, That I {or we, giving the names and residence of all the mortgagors) am {or are) held and firmly bound unto {the names and residence of the mortgagee) in the just and full sum of dollars, lawful money of the United States of America, to be paid to the said or his {or their) executors, administrators, or assigns; for which payment well and truly to be made, I bind myself, my heirs, executors, and administrators firmly by these presents. Dated at this day of in the year one thousand eight hundred and V/liereas, {name of the mortgagee) has this day lent and advanced unto the said {name of the mortgagor) the sum of dollars on the body, tackle, and appurtenances of the or vessel called the of the burden of tons, or thereabouts; the said {name of the mortgagor) being the {owner) of the same. Now the Condition of this Obligation is such, That if the said {name of the jnortgagor) shall pay or cause to be paid to the said {name of the mortgagee) the sum of dollars (the amount loaned), and interest thereon on or before the day of in the year 18 then this obligation to be void ; otherwise, to remain in full force and virtue. And in consideration of and as security for said loan as aforesaid, the said (vessel, or ship, or steamer, as it jnay be) is by these presents assigned, pledged, mortgaged, set over, and conveyed to the said heirs and assigns ; the certificate of the enrollment of which vessel is as follows, viz. : {Enrollment as in the previous for/n of a Bill of Sale of a Vessel.) 364 THE LA W OF SHIPPING. It beintj Hiitually XJnderstoocl and Agreed, That in case the amount of said loan and interest, or any part thereof, according to the terms of these presents, shall remain due and unpaid to said {iiame of mortgagee) after the expiration of , the said {iiame of mortgagee) may take possession of said and appurtenances, and sell the same at public auction, in order to satisfy the amount then due, without any proceedings in court or otherwise, for the purpose of authorizing such sale, and thereupon may execute and deliver a sufficient bill of sale to transfer completely to any purchaser or purchasers all title and property in and to the said and appurtenances, to the said (name of mortgagor) as {o-wuer) thereof, now belonging. The said {name of the mortgagee) thereupon to account to the said (name of the mortgagor) for any surplus of such sale, after paying all charges and expenses. And in case of such sale as aforesaid, the said {naine of the mort- gagor) executors, administrators, or assigns, shall, whenever thereto re- quested, make, execute, and deliver to such purchaser or purchasers, another bill of sale of said and appurtenances, in which the enrollment shall be recited as above, for the transferring completely to said purchaser or purchasers all the [right), (interest), and (elaim), of said executors, administrators, or assigns, as (owner) of said . And in default of the prompt execution and delivery cf such other bill of sale to such purchaser or purchasers, by the said when thereto requested, the said is hereby constituted and appointed the legal attorney of the said for the purpose of making, executing, and delivering such bill of sale, and the said hereby ratifies and confirms the act of the said as attorney for said purpose. And it is ihereby further Agreed, That insurance shall be made at some office in on the said for the security of the said (name of the mortgagee) to an amount not less than the sum loaned as aforesaid, and the said (name of the mortgagee) is hereby authorized to procure such insurance, at the expense of the said (name of the mort- gagor) if not seasonably obtained by him. (Signature) (Seal) Signed, Sealed, and Delivered in Presence of ( Witness) State of ■> >-ss. County of ) On the day of in the year one thousand eight hundred and before me personally came the individual described in, and who executed the foregoing instrument, and acknowledged that he executed the same. COMMERCIAL FORMS. 365 (93.) A Charter-Party. This Charter-Party, Made and concluded upon in the day of in the year one thousand eight hundred and between {name of the owner) owner of the of of the burden of tons or thereabouts, register measurement, now lying in the harbor of of the first part, and {name of the hirer) of the second part, witnesseth, that the said part of the first part, for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by the said part of the second part, do covenant and agree on the freighting and chartering of the said vessel unto the said part of the second part, for the voyage from the port of on the terms following ; that is to say, — First. The said part of the first part do engage that the said vessel in and during the said voyage shall be kept tight, stanch, well-fitted, tackled, and provided with every requisite, and with men and provisions necessary for such a voyage. Second. The said part of the first part do further engage that the whole of said vessel (with the exception of the cabin, the deck, and the necessary room for the accommodation of the crew, and of the sails, cables, and provisions) shall be at the sole use and disposal of the said part of the second part during the voyage aforesaid ; and that no goods or merchandise whatever shall be laden on board, otherwise than from the said part of the second part, or agent, without consent, on pain of forfeiture of the amount of freight agreed upon for the same. Third. The said part cf the first part do further engage to take and receive on board the said vessel, during the aforesaid voyage, all such lawful goods and merchandise as the said part of the second part, or agents, may think proper to ship. And the said part of the second part, for and in consideration of the covenants and agreements to be kept and performed by the said part of the first part, do covenant and agree with the said part of the first part, to charter and hire the said' vessel as aforesaid, on the terms following, that is to say : — First. The said part of the second part do engage to provide and furnish to the said vessel Secojtd. The said part of the second part do further engage to pay to the said part of the first part, or agent, for the charter or freight of the said vessel during the voyage aforesaid, in the manner following, that is to say: — It is further agreed between the parties to this instrument, that the said 366 THE LA W OF SHIPPING. part of the second part shall be allowed, for the loading and discharging of the vessel at the respective ports aforesaid, lay days as follows, that is to say: — and in case the vessel is longer detained, the said part of the second part agree to pay to the said part of the first part, demurrage at the rate of Spanish milled dolbrs per day fomeach and every day so detained, provided such detention shall happen by default of the said part of the second part, or agent. It is further understood and agreed, that the cargo shall be received and delivered alongside within reach of the vessel's tackles. It is also further understood and agreed, that this charter shall commence when the vessel is ready to receive cargo at her place of loading, and notice thereof is given to the part of the second part, or to agent . To the true and faithful performance of all the foregoing covenants and agreements, the said parties, each to the ether, do hereby bind themselves, their executors, administrators, and assigns, and aho the said vessel, freight, tackle, and appurtenances ; and the merchandise to be laden on board, each to the other, in the penal sum of In "Witness Whereof, The said parties have hereunto interchangeably Bet their hands and seals, this day of iS {Signaitires.) {Seals.) Signed, Sealed, and Delivered in the Presence of ( IVilncsses.) (94.) A Bill of Lading. Shipped, in good order and well conditioned, by {name of the ship- per) on board the called the whereof is master, now lying in the port of and bound for To say : — ijiere describe or enumerate the parcels) being marked and numbered as in the margin, and are to be delivered in the like good order and condition, at the aforesaid port of (the dangers of the seas only excepted), unto (fhe name of the consignee) or to assigns, he or they paying freight for the said {here specify the rate affreight agreed to be paid) with primage and average accustomed. In Witness Whereof, The master or purser of the said vessel hath affirmed to bills of lading, all of this tenor and date ; one of which being accomplished, the others to stand void. Dated in the day of i8 {Signatitre) COMMERCIAL FORMS. 367 (95.) Shipping Articles, in Common Use. XTnited States of America. It is agreed, between the master and sea- men, or mariners, of the {name of the vessel) of ■whereof is at present master, or wlioever sjjjill go for master, now bound from the port of , to And it is hereby expressly agreed, that should the said ship on the said voyage be seized, detained, or fined, for smuggling tobacco, or any other article, by one or more of the undersigned sailors, coohs, or stewards, they shall all be responsible for the damages thence resulting, and shall severally forfeit tlieir wages, and all their goods and cliatlels on board, to the amount of such damage, and that the certificate of the person or persons who may seize, detain, or fine the said ship for smuggling, signed by him or them, and verified by the American consul at under his seal of office, shall be conclusive evidence of the facts therein stated, in all courts whatsoever, especially and as to the fact that smuggling had been committed, the indi- vidual or individuals by whom the same had been committed, the amount of the fine imposed therefor upon the said ship, the incidental expenses thereon, and the number of days the said ship was detained in consequence thereof. No grog allowed, and none to be put on board by the crew ; and no profane language allowed, nor any sheath-knives permitted to be brought or used on board. That, in consideration of the monthly or other wages against each respec- tive seaman or mariner's name hereunder set, Ihey severally shall and will perform the above-mentioned voyage : And the said master doth hereby agree with and hire the said seamen or mariners for the said voyages, at such monthly wages or prices, to be paid pursuant to this agreement, and the laws of the Congress of the United States of America : And they, the said seamen or mariners, do severally hereby promise and oblige themselves to do their duty, and obey the lawful commands of their officers on board the said vessel, or the boats thereunto belonging, as become good and faithful seamen or mariners ; and at all places where the said vessel shall put in, or anchor at, during the said voyage, to do their best endeavors for the preser- vation of the said vessel and cargo, and not to neglect or refuse doing their duty by day or night, nor shall go out of the said vessel on board any other vessel, or be on shore, under any pretence whatsoever, until the above-said voyage be ended, and the said vessel be discharged of her loading, without leave first obtained of the captain or commanding officer on board ; that in default thereof, he or they will be liable to all the penalties and forfeitures mentioned in the Marine Law, enacted for the government and regulation of seamen in the merchants' service, in which it is enacted, " That if any sea- man or mariner shall absent himself from on board the ship or vessel, with- out leave of the master or officer commanding on board, and the mate or other 368 THE LA W OF SHIPPING. officer having charge of the log-book shall make an entry therein of the name of such seaman or mariner, on the day on which he shall so absent himself ; and if such seaman or mariner shall return to his duty within forty-eight hours, such seaman or mariner shall forfeit three days' pay for every day which he shall so absent himself, to be deducted out of his wages ; but if any seaman or mariner shall absent himself for more than forty-eight hours at one time, he shall forfeit all wages due to.him, and all his goods and chattels which v/cre on board the said ship or vessel, or in any store where they may have been lodged at the time of his desertion, to the use of the owner or owners cf the said ship or vessel, and moreover shall be liable to pay him or them all damages which he or they may sustain by being obliged to hire other seamen or mariners in his or their place." And it is further agreed, that in case of desertion, death, or imprisonment, the wages arc to cease. And it is further agreed by both parties, that each and every lawful com- mand which the said master or other officer shall think necessary hereafter to issue for the effectual government cf the said vessel, suppressing immor- ality and vice of all kinds, shall be strictly complied with, under the penalty of the person or persons disobeying forfeiting his or their whole wages or hire, togetlier with everything belonging to him or them on board the said vessel. And it is further agreed on, that no officer or seaman belonging to the said vessel shall demand or be entitled to his wages, or any part thereof, until the arrival of said vessel at the said vessel's final port of discharge, and her cargo delivered. And it is hereby further agreed, between the master, officers and seamen of the said vessel, that whatever apparel, furniture, and stores each of them may receive into their charge, belonging to the said vessel, shall be accounted for on her return ; and in case anything shall be lost or damaged, through their carelessness or insufficiency, it shall be made good by such officer or seaman, by whose means it may happen, to the master and owners of the said vessel. And whereas, it is customary for the officers and seamen, while the vessel is in port, or while the cargo is delivering, to go on shore at night to sleep, greatly to the prejudice of such vessel and freighters, be it further agreed by the said parties, that neither officer nor seaman shall, on any pretence what- ever, be entitled to such indulgence, but shall do their duty by day in dis- charge of the cargo, and keep such watch by night as the master shall think necessary to order relative to said vessel or cargo ; and whereas it frequently happens that the owner or captain incurs expenses while in a foreign port, relative to the imprisonment of one or more of his officers or crew, or in the attendance of nurses, or in the payment of board on shore for the benefit of such person or persons : now it is understood and agreed by the parties here- unto, that all such expenditures as may be incurred by reason of the forego- ing premises shall be charged to, and deducted out of the wages of, any offi- COMMERCIAL FORMS. 369 cer or such one of the crew by whose means or for whose benefit the same shall have been paid. And whereas, it often happens that part of the cargo is embezzled after being safely delivered into lighters, and as such losses are made good by the owners of the vessel, be it therefore agreed by these presents, that whatevey officer or seaman the master shall think proper to appoint, shall take charge of her cargo in the lighters, and go with it to the lawful quay, and there deliver his charge to the vessel's husband, or his representative, to see the same safely landed. That each seaman or mariner who shall well and truly perform the above- mentioned voyage (provided always that there be no desertion, plunderage, embezzlement, or other unlawful acts committed on the said vessel's cargo or stores) shall be entitled to the payment of the wages or hire that may become due to him pursuant to this agreement, as to their names is severally affixed and set forth : Provided, nevertheless, that if any of the said crew disobey the orders of the said master or other officer of the said vessel, or absent himself at any time without liberty, his wages due at the time of such dis- obedience or absence shall be forfeited ; and in case such person or persons so forfeiting wages shall be reinstated or permitted to do further duty, it shall not do away such forfeiture. It being understood and agreed, by the said parties, that parol proof of the misconduct, absence, or desertion of any officer or any of the crew of said vessel, may be given in evidence at any trial between the parties to this contract, any act, law, or usage to the contrary thereof notwithstanding. In Testimony Whereof, and for the due performance of each and every •of the above-mentioned articles and agreements, and acknowledgment of their being voluntarily, and without compulsion or any other clandestine means being used, agreed to and signed by us, we have each and every of us here- unto affixed our hands, the month and day against our names as hereunder written. And it is hereby understood and mutually agreed, by and between the parties aforesaid, that they will render themselves on board the said vessel, on or before the day of 18 at o'clock in the noon. This is signed by all the officers and crew, under seventeen columns, which give the following particulars : Date of entry, names, stations, birthplace, age, height in feet and inches, wages per month, advance wages, advance abroad, hospital money, timfe of service in months and days, whole wages, wages due, sureties, witness. On the back of this instrument is usually a receipt in full in the following words. It should be remarked, however, that the sailor's discharge of all demands for assault and battery, or imprisonment, etc., is of little, if any, legal force. 24 370 THE LA W OF SHIPPING. We, the undersigned, late mariners on board the on her late voyage described on the other side of this instrument, and now performed to this place of payment, do hereby, each one for ourselves, with our signatures, aclinowledge to have received of agent or owner of said the full sum hereunder set against our names ; being in full amount of our wages for our services, and all demands for assault and battery, or imprisonment, of whatever name or nature, against said her owners or officers, to the day or date here- under also set against our names. (Signatures) (96.) A Bottomry Bond. Knew all Men by these Presents, That I (naine of the master or of the owner if tlie Bond is 7nade by him), now master and commander of the or vessel called the of the burden of tons, or thereabouts, now lying in the port of am held and firmly bound unto {name of the lender who is the obligee of the Bond) in the sum of lawful money of the United States of America, to be paid to the said or to certain attorney , executors, administrators, or assigns ; for which payment, well and truly to be made, I bind myself, my heirs, exec- utors, and administrators, and also the said vessel, her tackle, apparel, and furniture, firmly by these presents. Sealed with my seal, at this day of in the year of our Lord one thousand eight hundred and "Whereas, The above bounden {name of the obligor) has been obliged to take up and borrow, and hath received of the said for the use of the said vessel, and for the purpose of fitting the same for sea, the sum of lawful money of the United States of America, which sum is to be and remain as a lien and bottomry on the said vessel, her tackle, apparel, and furniture, at the rate or premium of {state the rate of the maritime interest) for the voyage. In consideration whereof, all risks of the seas, rivers, enemies, fires, pirates, &c., are to be on account of the said {>zame of the lender). And for the better security of the said sum and premium, the said master doth, by these presents, hypothecate and assign over to the said heirs, executors, administrators, and assigns, the said vessel, her tackle, apparel, and furniture. And it is hereby declared, that the said vessel, is thus hypothe- cated and assigned over for the security of the money so borrowed, and taken up as aforesaid, and shall be delivered for no other use or purpose whatever, until this bond is first paid, together with the premium hereby agreed to be paid thereon. COMMERCIAL FORMS. ^71 Now tlio Condition of this Obligation is bucIi, That if the above bounden (i/ie borrower) shall well and truly pay, or cause to be paid, unto the said (the lender) the just and full sum of lawful money as aforesaid, being the sum borrowed, and also the premium aforesaid, at or before the expiration of days after the arrival of the said vessel at then this obligation, and the said hypothecation, to be void and of no effect, otherwise to remain in full force and virtue. Having signed and executed two bonds of the same tenor and date, one of which being accomplished, the other to be void and of no effect. {Signature^ (Seal^ Signed, Sealed, and Delivered in the Presence of I do not give the form of a Respondentia Bond. This con- tract is now unusual, and is made only vi^hen some special emergency calls for it, and must then be framed to suit that emergency, and express the special terms of the bargain. The foregoing form, in connection with what is said of Respondentia Bonds in the text, and the points in which they resemble Bottomry Bonds and those in which they differ from them, will enable any one to frame a Respondentia Bond suited to most cases. (97.) Oath or Affirmation of Consignee or Agent. District and Port of Philadelphia. I {name of the consignee) do solemnly and truly swear (or affirm) that the invoice and bill of lading now presented by me to the collector of , are the true and only invoice and bill of lading by me received, of all the goods, wares, and merchandise, imported in the {name of the vessel) whereof is master, from for account of any person whomsoever, for whom I am authorized to enter the same : that the said invoice and bill of lading are in the state in which they were actually received by me, and that I do not know nor believe in the existence of any other invoice, or bill of lading of the said goods, wares, and merchandise ; that the entry now delivered to the collector contains a just and true account of the said goods, wares, and merchandise according to the said invoice and bill of lading ; that nothing has been, on my part, nor to my knowledge, on the part of any other person, concealed or suppressed, whereby the United States may be defrauded of any part of the duty lawfully due on the said goods, wares, and merchandise, and that if, at any time hereafter, I discover any error in the said invoice, or in the account now rendered of the said goods, wares, and merchandise, or receive any other 372 THE LA W OF SHIPPING. invoice of the same, I will immediately make the same known to the col- lector of the district And I do further solemnly and truly swear {or affirm) that, to the best of my knowledge and belief, {jiayne and residence of the owner of the goods) is owner of the goods, wares, and merchandise, mentioned in the annexed entry ; that the invoice now produced by me exhibits the actual cost, or fair market-value, of the said goods, wares, and merchandise, all the charges thereon, and no other or different discount, bounty, or drawback, but such as has been actually allowed on the same. this day of i8 {Signature^ Before me, Collector. (98.) Custom House Power of Attorney. No. 201. Know all Men by these Presents, That I {name of principal) do make, constitute, and appoint {name of attorney) my true and lawful attorney for me, and in my name and stead, to enter in due form of law, at the Custom House in the city of all goods, wares, and merchandise, which have been imported or may hereafter be imported, by or which have arrived, consigned, or may hereafter arrive, consigned to , or in which or may be interested or concerned. And for me and in my name and stead to sign, seal, execute, and deliver all and every bond and bonds which may be required to secure the duties thereon, or for the transportation or exportation of the same ; or any other bond or bonds required by the revenue laws or the regulations of the Treasury Department of the United States, or the collector of the customs of the district of relative to any such merchandise ; or which may be necessary to obtain the debenture and debentures, upon such of the said goods, wares, and merchandise as may be exported for me or on my account. To have, take, and receive all debenture certificates to be issued thereupon for me and in my name to indorse, assign, and transfer the same ; or have, take, and receive the moneys due and to grow due thereon : And generally, as my attorney to do, transact, and perform all custom-house business, of what kind soever, in which I am or may be interested or concerned, as fully and effectually, to all intents and purposes, as I if present there in person could do ; also to set my seal to any instrument which may be necessary in the premises, and the same to acknowledge for me to be my deed ; and generally to do and perform all things relating to the premises, which I could lawfully do, if personally present, and as fully and effectually to every intent and purpose, although the same should seem to require more precise or special authority than is herein expressed. And especially authorizing and empowering my said attorney, for me and in my name and stead to sign, seal, execute, and COMMERCIAL FORMS. 373 deliver all bonds of indemnity and other specialties, and also all other documents which may be necessary for effecting the premises ; hereby ratify- ing all and whatsoever my said attorney may lawfully do by virtue hereof. And I hereby further authorize my said attorney at any time, and from time to time at his discretion, by proper letters of attorney, to substitute any other person or persons for himself in my place, and the same at his pleasure to revoke ; hereby giving to the substitute or substitutes, as full power and authority in the premises as is hereby given to my said attorney. And also hereby ratifying and confirming all and every act, matter, and thing that my said attorney or his substitute or substitutes may do in the premises, by virtue of these presents. And it is hereby declared and understood, that this power shall be and remain in full force and virtue until revoked by written notice given to thei collector. In Witness "Wliereofj I have hereunto set my hand and seal this day of 1 8 {Signature.) (Seal.) Signed, Sealed, and Delivered in Presence of St'ate of Be it Known, That on the day of 1 8 personally appeared and acknowledged before me the foregoing power of attorney to be free act and deed. In Testimony "WTieteof, I have hereunto set my hand and seal of office the day of i8 (99.) Maritime Protest. UNITED STATES OF AMERICA. Notary. State of County of By this Public Instrument of Protest, Be it known, that on the day of in the year of our Lord one thousand eight hundred and before me, a Notary Public in and for the State of County of and dwelling in the city of , State of , duly commissioned and sworn, personally came and appeared {names of all the parties who make the protest, ■with a description of each of them, as to occupation and residence) which said appearers, after having been duly sworn by me, the said notary, upon the Holy Evangelists of Almighty God, voluntarily, fteely, and solemnly declare and depose as follows, to wit : that the (ftame of the vessel, describing her generally), on the day of in the year i8 sailed from the port of 374 THE LA W OF SHIPPING. bound for the port of with a cargo of that when they started, as aforesaid, the said was stout, stanch and strong ; had her cargo well and sufficiently stowed and secured ; was well manned, tackled, victualled, apparelled and appointed ; and was in every respect fit for the voyage she was about to undertake : And thereafter, on the day of in the year iS (here must be set forth with some minuteness the place of any accident or loss, and the circum- stances of the occurrence) Now, therefore, because of the premises, and as all the loss, damage and injury which already have or may hereafter appear to have happened or accrued to the said or her said cargo, has been occasioned solely by the circumstances hereinbefore stated, and cannot nor ought not to be attributed to any insufficiency of the said or default of him, the said his officers or crew ; he now requires me, the said notary, to make his protest and this public act thereof, that the same may serve and be and remain in full force and virtue, as of right shall ai^pertain. And thereupon the said doth protest, and I, the said notary, at his special instance and request, do, by these presents, publicly and solemnly protest against winds, \ie.2i'Cc\i.x (and what- ever else caused the loss, as fire, pirates, Qr'c ), and against all and every accident, matter and thing, had and met with as aforesaid, whereby or by means whereof the said or her cargo, already has, or hereafter shall appear to have suffered or sustained damage or injury, for all losses, costs, charges, expenses, damages, and injury, which the said the owner or owners of the said or the owners, freighters or shippers of her said cargo, or any other person or persons concerned in either, already have or may hereafter pay, sustain, incur, or be put unto by, through, or on account of the .premises, or for which the insurer or insurers of the said or her cargo, is or are re?peclively liable to pay, or make contribution or average, accord- ing to custom, or their respective contracts or obligations ; so that no part of such losses and expenses already incurred, or hereafter to be incurred, do fall upon him, the said his officers and crew. We, (repeat here the names of the appearers) do solemnly swear that the foregoing statement is correct, and contains a true account of all the facts and circumstances of the case, to the best of our knowledge. (Signatures of all the appearers.) Thus Done and Protested, at my office, in the city of , this day of in the year oi our Lord one thousand eight hundred and Notary Public, County of State of To all to whom these iPresents shall come, I, Notary Public, duly commissioned and qualified, residing at , in the County of and State of , do hereby certify HOW THE CONTRACT OF INSURANCE IS MADE. 375 that the foregoing, purporting to be a copy of the protest of the master and a part of the crew of the bearing date the day of last, is a true and correct copy of said protest, which was made before me, examined and compared with the original draft of the same, drawn up and recorded in my office, in Boole page and following : In Testimony Whereof, I have hereunto set my hand, and affixed my notarial seal, this day of A.D. 18 {Signature.) {Seal.) (100.) A Steamboat 'Warrant, as used in the "Western States. Know all Men by these Presents, That we {name of debtor) as principal, and {names of owners of the steamboat) owners of the steamboat as security, are held and firmly bound unto {name of creditor) in the sum of dollars, for the payment of which we bind ourselves, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals, and dated this day of eighteen hundred and The Condition of the above Obligation is such, That, whereas, the said {name of creditor) as plaintiff has sued out of the office of justice of the peace, a warrant against the steamboat {name of the steamboat) returnable forthwith ; being on a demand for the sura of dollars, and cents. Now, if the said {name of the deb/or) shall satisfy the amount which shall be adjudged to be owing and due to the said plaintiff in the determina- tion of said suit, together with all costs accruing, then this obligation to be void, otherwise to remain in full force. {Signatures.) {Seals.) Approved, {Sheriff' or Constable.) CHAPTER XXVI. MARINE INSURANCE. SECTION I. HOW THE CONTRACT OF INSURANCE IS MADE. At the present day insurance is seldom made by individuals. Formerly, this was the universal custom in our commercial cities. Afterwards, companies were incorporated for the purpose of 376 MARINE INSURANCE. making insurance on ships and their cargoes ; and the manifold advantages of this method liave caused it to supersede the other. But an insurance company is not bound to insure for all who offer, and it has been held that an action will not lie against insurers for combining not to insure for a certain person, how- ever malicious their motive may be. The contract of insurance binds the insurer to indemnify the insured against loss or injury to certain property or interests which it specifies, from certain perils which it also specifies. The consideration for this obligation on the part of the insurer is the premium paid to the insurer, or promised to be paid to him, by the insured. The instrument in which this contract is expressed is called a Policy of Insurance. But no instrument is essential to the validity of the contract ; for if the proposals of the insured are written in the usual way in the proposal book of the insured, and signed by their officer with the word "done," or "accepted," or in any usual way to indicate that the bargain is made, it is valid, although no policy be delivered ; and it would be construed as an insurance upon the terms expressed in the policy com- monly used by that company. If proposals are made, on either side, by letter, and accepted by the other party, also by letter, this is a valid contract of insurance as soon as the party accepting has mailed his letter to that effect, if he have not previously received notice of a with- drawal of the proposals. The form of the policy is generally that which has been used for many years both in England and in this country, with such changes and modifications only as will make it express more accurately the bargain between the parties. And for this pur- pose it may be and is varied at pleasure. It is subscribed only by the insurers ; but binds both parties. The insured are bound for the premium, although no note is given. The date may be controlled by evidence showing when it was made and delivered ; but if delivered after its date, it takes effect at and from its date, if that were the intention of the parties. It may be effected on application of an agent of the insured. HOIV THE CONTRACT OF INSURANCE IS MADE. 377 if he have full authority for this purpose ; which need not be in writing. But a mere general authority, even if it related to commercial matters, or to a ship itself, as that of a " ship's hus- band," is not sufficient. A party may be insured who is not named, if "for whom it may concern," or words of equivalent import, are used. But a party who seeks to come in under such a clause must show that he was interested in the property insured at the time the insur- ance was made, and that he was in the contemplation of the party asking insurance. The phrase " on account of owners at the time of loss," or an equivalent phrase, will bring in those who were intended, if they owned the property when the loss occurred, although there were assignments and transfers between the time of insurance and the loss. Each person whose several interest is actually insured by any such general phrase may demand or sue in his own name. If the nominal insured is described as "agent" generally, this is equivalent to "for all whom it may concern." And an insurance " for " will be read as for all whom it may con- cern, if that were intended. So, if the designation of the insured be common to many persons, the intention of the parties must decide for whom it is made. Whatever is written on any part of the sheet containing the policy, or even on a separate paper, if referred to or signed by the parties as a part of the policy, is thereby made a part of it. But things said by either party while making their bargain, or written on other paper, and not so referred to or signed, form no part of it. The policy may expressly provide that its terms shall be made definite, especially as to the property insured, by subsequent indorsements or additions. Thus, it is very common to insure property to a certain amount, "from A to B, on board ship or ships, as sljall hereafter be indorsed on this policy." And when this or any equivalent phrase is used, the insured requests the insurers to indorse on the policy the name of the vessel, and the amount shipped, as soon as he has notice of it. Alterations may be made at any time by consent. But a material alteration by either party, without the consent of the other, renders the contract void; although it was made honestly, 378 MARINE INSURANCE. in the hope or belief of its being assented to. A court of equity will correct a material mistake of fact. A policy may be assigned, and the assignee may sue in the name of the assignor. If the loss is made by the policy payable "to order" or "to bearer," it will then by negotiable by indorse- ment or delivery, but it is not certain that the transferee can even then sue in his own name. In New York and some other States, not only these assignees, but other assignees of debts or contracts, may sue in their own names. If the insured transfers the property, unaccompanied by a transfer of the policy with consent of the insurer, this dis- charges the policy, unless it was expressly made for the benefit of whoever should be owner at the time of the loss, as before stated. There is usually a clause to the effect that the policy is void if assigned without the consent of the insurers. But this does not apply to an assignment by force of law, as in a case of insolvency, or in a case of death. And after a loss has occurred, the claim against the insurers is always assignable like any other debt. And a seller who remains in possession of the property as trustee for the purchaser, or a mortgagor retaining possession, may retain the policy, and preserve his rights. SECTION II. THE INTEREST OF THE INSURED. The Contract of Insurance is a contract of indemnity for loss. The insured must, therefore, be interested in the prop- erty at the time of the loss. The value to be paid for may be agreed upon beforehand, and expressed in the policy, which is then called a valued policy ; or left to be ascer- tained by proper evidence, and the policy is then called an opoi policy. This valuation, if in good faith, is binding on both parties, even if it be very high indeed. But a wager policy, that is, one without interest, is void ; and although there be some interest, the valuation may still be so excessive as to be open to the objection that the interest is a mere cover, and that the contract is void because only one of wager. The valuation THE INTEREST OF THE INSURED. 375 is void if fraudulent in any respect ; as if it cover an illegal interest or peril. And in this case the fraud vitiates and avoids the whole contract, and the insured recovers nothing. And if the valuation is gross and excessive, fraud may be presumed. The insured may apply his valuation to the whole property, or to that part of it which he wishes to insure ; thus he may cause himself to be insured for one-half of a cargo, the whole of which is valued at ^20,000, or for one-half, which half is valued at $20,000; and if the policy says, "Insured ;^i5,ooo on half of the ship Scipio (or ^n her cargo), valued at ;^20,ooo," whether it is meant that the whole ship (or cargo) is valued at ;^20,ooo, or the half only that is insured, will be determined by a reasonable construction of the language used. If he owns the whole, the valuation, in general, will be held to apply to the whole ; and only to a part, if he owns only a part. He may value one thing insured, and not another ; or may value the same thing in one policy, and not in another ; and then the valuation does not affect the policy which does not contain it. If only a part of the goods included in the valuation are on board and at risk, it applies to them in due proportion to their value. A valuation of an outward cargo may be taken as a valu- ation of a return cargo, substituted for the other by purchase, and covered by the same policy. And a valuation will cover the insured's whole interest in the thing valued, including the premium, unless a different purpose is expressed or indi- cated. A valuation of freight applies to the freight of the whole cargo, and if a part only be at risk, it applies in proportion. And it applies either to the whole voyage, or to freight earned by voyages which form parts of the whole, as may be intended and expressed. If profits are insured as such, they are generally valued, but may be insured by an open policy. If they are valued, the loss of the goods on which the profits were to have been made, implies in this country a loss of the valued profits, without proof that there would have been any profit whatever ; it seems to be 38o MARINE INSURANCE. necessary in England to show that there would have been some profit, and then the valuation attaches. It is very common to insure profits, in fact, without saying anything about them, by a valuation of the goods sufficiently high to include all the profits that can be made upon them. In an open policy, where the value insured is to be deter- mined by evidence, the value of the property — whether ship or goods — which is insured, is its value when the insurance took effect, including the premium of insurance ; as the law of insurance intends indemnifying the assured as accurately as may be for all his loss. If £^ ship be insured, its value throughout the insurance is the same as at the beginning, with- out allowance for the effect of time upon it. And all its appurtenances, in a mercantile sense of this phrase, enter into its value. While the value of the property does not vary with time, the interest of the insured at the time of the loss (which may be the whole, or half, or any other part) is that on which he founds his claim. Thus, if an owner of a ship is insured ^20,000 on ship A. B., valued at $30,000, and afterwards sells half of the ship, and it is subsequently lost, he recovers only ^10,000. But if he owned half originally, and insured that, and before the loss acquired the other half, he recovers only for the half insured. Generally, the value of goods is their invoice price, with all those charges, commissions, wages, etc., which enter into the cost to the owner when the risk commences. The drawback is not deducted ; and the expenses incurred after the risk begins, as for freight, etc., are not included. And the rate of exchange at the beginning of the risk is taken. SECTION III. THE INTEREST WHICH MAY BE INSURED. A MERE possibility or expectation cannot be insured, but any actual interest may be. If one has contracted to buy goods, he may insure them, and will recover if the property be in him at the time of the loss ; for if they are then destroyed, it will be THE INTEREST WHICH MA Y BE INSURED. 381 his loss. (For what is meant by the property being in him, see the cliapter on Sales.) If one has taken on himself certain risks, or agreed to indem- nify another for them, he may insure himself against the same risks. The policy may express and define the interest in such a way that any change in the nature of it will discharge the insurance. If it is not so defined and declared, a change, as from the interest of an owner to that of a mortgagor, or of a mortgagee, will not defeat the policy. A mere indebtedness to a party on account of property gives the creditor no insurable interest; thus, one who repaired a house or a ship cannot insure the house or ship merely because the owner owes him ; but if the creditor has a lien on the prop- erty, this is an insurable interest. And, generally, every bailee or party in possession of goods, with a lien on them, may insure them. And a lender on bottomry or respondentia may insure the ship or goods. And any persons who have possession of property, or a right to possession, and may legally make a profit out of it, as factors on commission, consignees, or carriers, rray insure their interest. If a mortgagee be insured, and recovers from the insurers, he, generally, at least, transfers to them the security for his debt, or accounts with them for its value ; because, to the extent of that security, he has met with no loss, and, if he did not transfer it, would recover his money twice. It should, however, be added that where a mortgagee, or one having a lien, insures his own interest in property, a payment of a loss to him by the insurers does not discharge the debt for which the mortgage or the lien is the security. Where, however, the mortgagee is trustee for the mortgagor, as where the mortgagor causes insur- ance to be'made on the premises, payable to the mortgagee in case of loss, or where the mortgagee effects insurance at the expense of the mortgagor, with his consent, payment by the insurers would go in discharge of the debt. A policy usually adds to the description of the property, " lost or not lost." This phrase makes the policy retrospective ; and attaches it to the property if that existed when, by the terms of the policy, the insurance began, whether this were for a 382 MARINE INSURANCE. voyage or for a certain time, althougli it had ceased to exist when the policy was made. An interest which was originally valid and sufficient cannot be defeated by that which threatens, but does not complete an actual divestment of the interest in property ; therefore, not by attachment, or an execution for debt ; nor by liability to seizure by government for forfeiture ; nor a right in the seller to stop the goods in transitu ; nor capture ; because, after all these, the property may remain in or return to the insured. But sale on execution, actual seizure by government and for- feiture, stoppage in transitu, or condemnation by court as lawful prize, divest the property, and therefore discharge the insurance. The insurance never attaches if the interest is illegal origi- nally; and it is discharged if the interest becomes illegal subsequent to the insurance, or if an illegal use of the subject- matter of the insurance is intended. And any act is illegal which is prohibited by law, or made subject to a penalty. The effect would be the same if the policy opposes distinctly the principles and the purposes of law, as wagering policies do. Mariners, or mates, are not permitted by the law-merchant to insure their wages, but may insure goods on board, bought with their wages ; and one legally interested in the wages of a mariner may insure them ; as one to whom they are assigned by order or otherwise. A master may insure his wages, commis- sions, or any profit he may make out of his privilege. An unexecuted intention of illegality, if not distinctly acted upon, will not defeat a policy ; nor a remote and incidental ille- gality ; as smuggling stores on board, or not having on board the provisions required by law ; nor a change from legality to illegality, which cannot be proved or supposed to be known to the insured. And upon these questions, the court, if the case be balanced, will incline to the side of legality. A cargo may be insured which is itself lawful, but was purchased with the proceeds of an illegal voyage. If a severable part of a cargo or a voyage is legal, it may be insured, by itself, although other parts are illegal. But if a part of the whole property insured together is illegal, this avoids the whole policy. PRIOR INSURANCE. jgj A compliance with foreign registry laws is not necessary, and with our own probably is not, to sustain the insurance of an actual owner in good faith Freight is a common subject of insurance. In common con- versation, this word means sometimes the cargo carried, and sometimes the earnings of the ship by carrying the cargo. The latter is the meaning in mercantile law, and especially in the law of insurance. It includes in insurance law the money to be paid to the owner of a ship by the shipper of goods, alnd also the earnings of an owner by carrying his own goods ; and the amount to be paid to the owner by the hirer of his ship, and also the profits of such hirer, either by carrying his own goods, or by carrying, for pay, the goods of others. An interest in freight begins as soon as the voyage is deter- mined upon, and the ship is actually ready for sea, and goods are on board, or are ready to be put on board, or are promised to be put on board by a contract which binds the owner of the goods to put them on board, for that voyage. If a ship is insured on a voyage which is to consist of many passages, and sails without cargo, but a cargo is ready for her, or contracted for her at the first port she is to reach a»nd sail from, the owner has an insurable interest in the freight from the day on which she sails from his home port. If one makes advances towards the freight he is to pay, and this is to be repaid to him by the ship-owner if the freight is not earned, the advancer has no insurable interest in what he advances ; but if he is to lose it, without repayment, if the ship be lost or the freight not earned, he has an insurable interest. SECTION IV. PRIOR INSURANCE. Our marine policies generally provide for this by a clause to the effect that the insurer shall be liable only for so much of the property as a prior insurance shall not cover. The second covers what the first leaves, the third what the second leaves, and so on ; and as soon as the whole value of the property is covered, the remainder of that policy, and the subsequent poll- 384 MARINE INSURANCE. cies, have no effect. This priority relates not merely to the date of the instrument, but to the actual time of insurance. Sometimes the policy provides that the insured shall recover only the same proportion of the whole loss which the amount insured in that policy is of the whole amount insured by all the policies on the whole property. Where no provision is made in the policies as to priority, all are insurers alike, but all together only of the whole value at risk. The insured, therefore, may recover of any one insurer at his election, and this insurer may compel the others to con- tribute to him in proportion to their respective insurances. Insurances may be not successive, but simultaneous, and then no clause as to prior policies has any application, for then no policy is prior to another, and all the insurances are liable fro rata. They are simultaneous, if said to be so in the policies, which is common ; or if made on the same day, and bearing the same date, and there is no evidence as to which was, in fact, first made. SECTION V. DOUBLE INSURANCE AND RE-INSURANCE. If there be double insurance, either simultaneously or by successive policies in which priority of insurance is not pro- vided for, we have seen that all are insurers, and liable each in proportion ; thus, if all the policies cover twice the value of the property insured, each policy is valid for one-half of its own amount. But there is no double insurance, unless all the policies insure the very same subject-matter, against the same risks, and, taken together, exceed its whole value. Many insurances of the same subject-matter, for the benefit of different parties, do not constitute double insurance. Re-insurance is lawful ; for whoever insures another has assumed a risk against which he may cause himself to be insured. This is often done by companies who wish to close their accounts, to lessen their risks, or get rid of some special risk. EXPRESS WARRANTIES. 385 SECTION VI. THE MEMORANDUM. This word is retained, because the English policies have attached to them a note or memorandum providing that the insurers shall not be liable for any loss upon certain articles therein enumerated (and thence called memorandum articles), unless it be total, or greater than a certain percentage. In our policies, the same thing is provided for, but usually by a clause contained in the body or in the margin of the policy. The gen- eral purpose is to guard against a liability for injuries which may* very probably not arise from maritime peril, because the articles are in themselves perishable ; but which injuries it might not be easy to refer to the precise causes which produced them. Thus, grain, fish, hides, fruit, etc., are very liable to be some- what injured on the voyage, and if there has been bad weather, or a greater leak than usual, it is impossible to say whether these goods have lost value from their own decay, or from a peril of the sea. It is therefore provided, that the insurers shall not . pay unless there be a total loss by a sea-peril, which ends all question, or so large a loss as ten or twenty per cent.; for this- could hardly happen without visible and certain cause. And then, if the cause was shown to be not a peril insured against, the insurers would not be liable. The perishable articles thus excepted, and the percentage of loss necessary to charge the insurers, vary very much at differ- eint times and in different States. SECTION VII. EXPRESS WARRANTIES. A STIPULATION or agreement ?'« the policy, that a certain thing shall be or shall not be, is an express warranty. And every warranty must be, if not strictly, at least accurately com- plied with. Nor is it an excuse that the thing is not mate- rial ; or that the breach was not intended, or not known ; or that it was caused by an agent of the insured. A warranty is equally effectual if written upon a separate paper, but referred 25 386 MARINE INSURANCE. to in the policy itself as a warranty. And the direct assertion or allegation of a fact may constitute a warranty. If the breach of the warranty exists at the commencement of the risk, it avoids the whole policy, although the warranty was complied with afterwards and before a loss, and although all other risks were distinct from that to which the warranty related. Thus, if a vessel is warranted " coppered," and she is not coppered, and is lost by the ignition of cotton in the hold. Here, the breach of the warranty, that is, the want of the cop- per, has nothing to do with the loss; but the insurers would be discharged. If the breach occur after the risk begins, and before a loss, and is not caused or continued by the fault of the insured, the insurers are held ; and so they are if a compliance with the war- ranty becomes illegal after the policy attaches, and it is therefore broken. The usual subjects of express warranty are, first, the owner- ship of the property, which is chiefly important as it secures the neutrality, or freedom from war-risks, of the property insured. The neutrality of the ship and of the cargo must be proved by the ship's having on board all the usual and regular documents. False papers may, however, be carried for com- mercial purposes, either when leave is given by the insurers, or when it is permitted by a known and established usage. If neutrality is warranted, it must be maintained by a strict adherence to all the rules and usages of a neutral trade or em- ployment. Without warranty, every neutral ship is bound to respect a blockade which legally exists by reason of the presence of an armed force sufficient to preserve it, and of which the neutral has knowledge. The second most common express warranty is that of the time of the ship's sailing. She sails when she weighs anchor or casts off her fastenings, and gets under way, if the intention be to proceed at once to sea without further delay. She must have been actually under way. But if she moves with the intention of prosecuting her voyage, this is sufficient. But if not entirely ready for sea, she has not sailed by merely moving down the harbor. If she moves, being ready and intended for IMPLIED WARRANTIES. 387 sea, but is afterwards accidentally and compulsorily delayed, this is a sailing. Nor is the warranty complied with by leaving a place to return to it immediately ; or by going from one port of the coast or island, which she is warranted to leave, to another. If the ship is warranted " in such a harbor or port," or "where the ship now is," this means at the time of the insurance. And "warranted in port" means the port of insurance, unless another port is expressed or distinctly indica- ted. SECTION VIII. IMPLIED WARRANTIES. The most important of these warranties — which the law implies, or makes for the parties without their saying anything about them, although they may, if they please, make them for themselves — is that of seaworthiness. By this is meant, that every person who asks to be insured upon his ship, by the mere force and operation of law, warrants that she is, in every respect, — hull, sails, rigging, officers, crew, provisions, imple- ments, papers, and the like, — competent to enter upon and prosecute that voyage at the time proposed, and encounter safely the common dangers of the sea. If this warranty be not complied with, the policy does not attach, whether the breach be known or not, unless there is some peculiar clause in the policy waiving this objection. If the ship be seaworthy and the policy attaches, no subse- quent, breach discharges the insurers from their liability for a loss previous to the breach. Even if the policy does not attach at the beginning of the voyage, if the unseaworthiness be capable of prompt and effectual remedy, and be soon and entirely remedied, the policy may then attach. If the insurance is "at and from" a port, there is no implied warranty in the nature of a condition precedent to the attaching of the policy, that the vessel shall be then seaworthy in the sense of being fit for sea, and it is sufficient if she is portworthy. But the policy is avoided if she goes to sea in an unseaworthy condition. The general rule is, that, if unseaworthiness prevents the policy from attaching at the proper commencement of the risk, the contract becomes a nullity. 388 MARINE INSURANCE. If she becomes unseaworthy in the course of the voyage, from a peril insufficient to produce it in a sound vessel, this may he evidence of inherent weakness and original unseaworthiness ; and then the policy never attached. But if originally seaworthy, and by any accident made otherwise, the policy continues to attach until she can be restored to a seaworthy condition by reasonable endeavors. And the general rule is, that she must be so restored as soon as she can be. It is the duty of the master to repair her as soon as he can ; by the aid of another ship if that may be, but if otherwise, not to keep her at sea if she can readily make a port where she can be made seawort.hy ; and not to leave that port until she is seaworthy. It is the rule that a ship must not leave a port in an unseaworthy condition, if she could there be made seaworthy ; if she does, the insurers are no longer held. But their liability may be, not destroyed, but only^ suspended, if the seaworthiness be cured at the next port, especially if that be not a distant port. There cannot possibly be a definite and universal standard for seaworthiness. The ship must be fit for her voyage or for her place. But a coasting schooner needs one kind of fitness, a freighting ship to Europe another, a whaling ship another, a ship insured only while in port another. So as to the crew, or provisions, or papers, or a pilot, or certain furniture, as a chronometer or the like; or the kind of rigging or sails. In all these respects, much depends upon the existing and estab- lished usage. There is, perhaps, no better test than this ; the ship must have all those things, and in such quantity and of, such quality as the law requires, provided there is any positive rule of law affecting them ; and otherwise such as would be deemed requisite according to the common consent and usage of persons engaged in that trade. And the reason for this rule is, that this is exactly what the insurers have a right to expect, and if the insured intend anything less, or the insurers desire, anything more, it should be the subject of special bargain. If a policy be intended to attach when a ship is at sea, the ship must be seaworthy in that sense and in that way in which a ship of her declared age, size, employment, and character, after being at sea for that time, under ordinary circumstances, REPRESENTATION AND CONCEALMENT. 389 ought to be in, and may be expected to be in by all concerned. The standard of seaworthiness is to be found from the usage and understanding of merchants, at the place where the ship belongs, and not at that where the ship is insured. SECTION IX. REPRESENTATION AND CONCEALMENT. If there be an afhrmation or denial of any fact, or an allega- tion which would lead the mind to a conclusion, whether made orally or in writing, or by exhibition of any written or printed paper, or by a mere inference from the words of the policy, before the making of the policy, or at the making, and the same be false, and tend to procure for him who makes it the bargain, or some advantage in the bargain, it is a misrepresentation. And it is the same thing, whether it refers to a subject concern- ing which some representations were necessary, or otherwise. Concealment is the suppression of a fact not known to the other party, referring to the pending bargain, and material thereto. A misrepresentation or a concealment discharges the in- surers. To have this effect, it must continue until the risk begins, and then be material. It is no defence that it was innocent, and arose from inad- vertence or misapprehension, because the legal obligation of a full and true statement is absolute; nor that the insurers were not influenced by it, if it were wilfully made with intention to deceive. If it be in its nature temporary, and begins after the risk begins, and ends before a loss happens, the insurers are not discharged. And if it relate to an entirely separate subject- matter of insurance, as the goods only, and has no effect upon the risk as to the rest, as the ship, for example, it discharges the insurers only as to that part. Ignorance is never an excuse, if it be wilful and intentional. If one says only he believes so and so, the fact of his belief in good faith is sufficient for him; But if he says that is true of which he does not know whether it be true or false, and it is actually false, it is the same misrep- 390 MARINE INSURANCE. resentation as if he knew it to be false. If a statement relate to the future, a future compliance or fulfilment is necessary. Any statement in reply to a distinct inquiry will be deemed material ; because the question implies that the insurer deems it material. On the other hand, the insured is not bound to communicate any mere expectation or hope or fear; but only all the tacts material to the risk. SECTION X. WHAT THINGS SHOULD BE COMMUNICATED. Not only ascertained facts should be stated by the insured, but intelligence, and mere rumors, if of importance to the risk; and it has been held that intelligence known to his clerks would be generally presumed to be known to him ; and it is no defence, that the things have been found to be false. It has been held that an agent was bound to state that his directions were sent him by express ; because this indicated an emergency. If the voyage proposed would violate a foreign law not generally known, this should be stated. It is impossible to give any other criterion to determine what should be communicated than the rule that everything should be stated which might reasonably be considered in estimating the risk. And so everything of any kind which the insurer might reasonably wish to take into consideration in estimating the value of the risk which he is invited to assume. The question, however, being one of concealment as it affects the estimation of the risk, it is obvious that the insured need not state to the insurer things which he already knows ; and by the same reason, he is not bound to state things which the insurer ought to know, and might be supposed to know. If either party says to the other so much as should put the other upon inquiry in reference to a matter about which inquiry is easy and would lead to information, and the other party makes no inquiry, his ignorance is his own fault, and he must bear the consequences of it. An intention, which, if carried into effect, would discharge the insurers, as, for example, an intention to deviate, need not THE PREMIUM. 3gi be stated, unless the intention itself can be shown to affect the risk. So a past damage to the property need not be stated, unless it affects its present probability of safety. A false statement that other insurers have taken the risk on such or such terms is a misrepresentation ; but a false state- ment by the insured that he thinks they would take it on such terms is not one, for of this the insurers can judge for them- selves. Every statement or representation will be construed ration- ally, and so as to include all just and reasonable inferences. A substantial compliance with it will be sufficient ; and a literal compliance which is not a substantial one will not be sufficient SECTION XI. THE .PREMIUM. This is undoubtedly due when the contract of insurance is completed ; but in practice in this country, the premium in marine insurance is usually paid by a premium note on time, which is given at or soon after the delivery of the policy. If the policy acknowledge the receipt of the premium, and it is not paid, this receipt would be no bar to an action for it. The premium is not due, if the risk is not incurred ; whether this be caused by the non-sailing of the ship; or by one insured on goods not having goods on board ; or not so much cargo as he is insured for ; or by any error or falsity in the description which prevents the policy from attaching. If the premium be not earned, or not wholly earned, it must be returned in whole or in part by the insurers if it have been paid ; and not charged in account with the insured, if it be unpaid. The premium may be partially earned ; and then there must be a part return only. As if the voyage consist of several passages, or of "out and home" passages, and these are not connected by the policy as one entire risk; or if the insured has some goods at risk, but not all which he intended to insure. It is, however, an invariable rule, that if the whole risk attaches at all, that is, if there be a time, however short, during 393 MARINE INSURANCE. which the insurers might, in case of loss from a sea-peril, be called on for the whole amount they insure, there is to be no return of premium. In this country, insurers usually retain one-half of one per cent, of a returnable policy. And our policies contain a clause permitting the insurers to set off the premium due against a loss, whether the note be signed by the insured or by another person. SECTION XII. THE DESCRIPTION OF THE PROPERTY INSURED. The description must be such as will distinctly identify the property insured, as by quantity, marks, and numbers, or a reference to the fact of shipment, or the time of shipment, or the voyage, or the consignee ; or in some similar and satisfactory way ; and no mere mistake in a name, or otherwise, vitiates the description if it leaves it sufficiently certain. If different ship- ments come within the policy, the insured may attach it to either by his declaration, which may be done after the loss, pro- vided this appears to have been the intention of the parties. "Cargo," "goods on board," "merchandise," mean much the same thing ; and do not attach to ornaments, clothing, or the like, owned by persons on board and not intended for commer- cial purposes. " Property " is the word of widest and almost unlimited meaning. "Ship" or "vessel" includes all that belongs to it at the time, — even sextants or chronometers belonging to the ship-owner, and by him appropriated to the navigation of the ship. So it includes all additions or repairs made during the insurance. The phrase " a return cargo " will generally apply to a home- ward cargo of the party insured in the same ship, however it be procured; but the phrases "proceeds" and "returns" are generally regarded as limited to a return cargo bought by means of the outward cargo. And neither of these, or any similar phrases, will apply to the same cargo brought back again, unless it can be shown, by the usage, or other admissible evidence, that this was the intention of the parties. The nature of the interest of the insured need not be THE PERILS COVERED BY THE POLICY. 303 specified, unless peculiar circumstances, closely connecting this interest with the risk, make this necessary. But either a mort- gagor or a mortgagee, a charterer, an assignee, a consignee, a trustee, or a carrier, may insure as on his own property, and without describing the exact nature of his interest. SECTION XIII. THE PERILS COVERED BY THE POLICY. The policy enumerates, as the causes of loss against which it insures, Perils of the Sea, Fire, Piracy, Theft, Barratry, Capture, Arrests, and Detentions; and "all other perils," by which is meant, by construction of law, all other perils of a like kind with those enumerated. It is a imiversal rule, that the insurers are liable only for extraordinary risks. The very meaning of "seaworthiness," which the insured warrants, is that the ship is competent to encounter with safety all ordinary perils. If she be lost of injured, and the loss evidently arose from an ordinary peril, as from common weather, or the common force of the waves, the insurers are not liable, because the ship should be able to with- stand these assaults. And if the loss be unexplained, and no extraordinary peril be shown or indicated, this fact would raise a very strong presumption of unseaworthiness. As, for example, if the vessel went down while sailing with favorable winds on a calm ocean. It is a universal rule, that the insurers are never liable for a loss which is caused by the quality of the thing lost. This rule applies to the ship, her rigging and appurtenances, when worn out by age or hard service. But its most frequent application is to perishable goods. The memorandum already spoken of provides for this in some degree. But the insurers are liable for the loss of no article of merchandise whatever, if that loss were caused by the inherent qualities or tendencies of the article, unless thesg qualities or tendencies were excited to action and made destructive by a peril insured against. Thus, if hemp rots from spontaneous fermentation, which cannot occur if it be dry, the insurers are not liable if the loss arose 394 MARINE INSURANCE. from the dampness which the hemp had when laden on board ; but if the vessel were strained by tempest, and her seams opened, and the hemp was in this way wet, and then rotted, they are liable. The insurers may take upon themselves whatever risks they choose to assume. And express clauses in a policy, or the uniform and established usage and construction of policies, may throw upon them, as in fact it does, a very large liability to the owner or shipper for the effects of the misconduct — wilful or otherwise — of the master and crew. The clause relating to barratry, to be spoken of presently, is of this kind. If the cargo is damaged through the fault of the master or crew, the shipper of the cargo has a remedy against the owner of the ship. But this does not necessarily discharge the insur- ers. If, however, he enforces his claim against them, he is bound to transfer to them his claim against the ship-owner. For the insurers of the cargo, by paying a loss thereon, put themselves, as it were, in the position of the shippers, and acquire their rights. SECTION XIV. PERILS OF THE SEA. By this phrase is meant all the perils incident to navigation; and especially those arising from the wind and weather, the state of the ocean, and its rocks and shores. But it will be remem- bered that the insurers take upon themselves only so many of these as are "extraordinary." Hence, destruction by v/orms or by rats is not such a^peril as the insurers are liable for, because it is not extraordinary. It seems now settled that fire is not in- cluded among "perils of the sea," or "perils of the river." But it is usually mentioned in the policy, as one of the risks insured against. If a vessel be not heard from, it will be supposed, after a reasonable interval, that she has perished ; but the law has not determined the length of this interval with any exactness. The presumption of law will be, that she was lost by an extraordinary peril of the sea, and, of course, the insurers will be answerable for her. But this presumption may be rebutted by any suffi- PIRACY, ROBBERY, OR THEFT. 305 cient evidence, as of unseaworthiness, or any other probable cause of loss. SECTION XV. COLLISION. Collision is a peril of the sea which may deserve especial notice. In the chapter on Shipping,, it has been stated, that, where a collision is caused by the fault of one of the ships, the ship in fault sustains the whole loss ; that is, it must bear its own loss, and must indemnify the other ship for the injury that ship sustains. It has been held that the insurers of the ship in fault are liable for the whole of this loss, because it is all caused by collision, which is a peril of the sea. But the Supreme Court of the United States have recently decided that the insurers are not held for more than the loss directly sustained by the ship they insure, that is, not for the amount that ship pays to the other ship for injury done to it. SECTION XVI. FIRE. This peril also must come under the common rule, that the insurers will not be held unless it be caused by something extraordinary, and not belonging to the inherent qualities of the thing which takes fire. The insurers would be held for any direct and immediate consequences of the fire ; and for loss caused by the endeavor to extinguish it. It is, indeed, a general rule, that the insurers are liable for the loss or injury which is the natural, direct, and proximate effect of any peril insured against, although the loss itself may be only the effect of a preceding loss ; as, if a part of the cargo was burned up, and another part was injured by water used to arrest the fire, the insurers would be liable for both parts. SECTION XVII. PIRACY, ROBBERY, OR THEFT. There can be no piracy or robbery, without violence ; but this is not necessary to constitute the crime of theft. Piracy and robbery are most usually committed by strangers to the 396 MARINE INSURANCE. ship ; they may, however, be committed by the crew ; and the insurers are answerable for such a loss, unless it arose from the fault of the owner. Our policies now usually have the phrase "assailing thieves." This excludes theft without violence, and all theft by those lawfully on board the vessel, as a part of the ship's company. If, after shipwreck, the property is stolen, the insurers are liable, and might be so if there were no insurance against theft, if this was a direct effect of the wrecking. SECTION XVIII. BARRATRY. This word means any wrongful act of the master, officers, or crew, as any fraud, cheat, or trick done by them, or either of them, against the owner. If he directed the act, or consented to it, or by his negligence or default caused it, — whether he were actual owner, or apparent or temporary owner by hiring the vessel, — it is no barratry. But it is not necessary that it should be done with an intention hostile to him. For an act otherwise barratrous would be none the less so because the committer of it supposed it would be for the advantage of the owner. The master being appointed by the owner, and controlled by him, many policies provide that they do not insure against bar- ratry, if the insured be ike otuiicr of the ship. The purpose of this is obvious ; it is to prevent an insurance of the owner against the acts of one for whom the owner ought to hold himself responsible. The effect of the clause is to limit the insurance against barratry to goods shipped by one who is not owner of the vessel. As a general rule, the insurers are liable for the misconduct of the crew, when all usual and reasonable precautions have been taken by the owner, and his servant, the master, to prevent such misconduct. SECTION XIX. CAPTURE, ARREST, AND DETENTION. The phrase which refers to these perils is usually in these •^ords : "Against all captures at sea, or arrests, or detentions of all PROHIBITED TRADE. 397 kings, princes, and people." Almost every word of this sentence has been the subject of litigation or of discussion. The pro- vision has been held to apply not only to captures, arrests, or detentions by public enemies, by foreign belligerent powers, but to those by the very government of which the insured is himself a subject, unless the same be for a breach of the law by the insured. Then the insurers are not liable, because they never are for the consequence of an illegal act of the insured. By the "people" are understood the sovereign power of a State, what- ever be its form of government. " Capture " and " seizure " are equivalent ; they differ from " detention " in this respect : the two former words mean a taking with intent to keep ; the latter, a taking with intent to restore the property. " Arrest " is any taking possession of the property for any hostile or judicial purpose. SECTION XX. THE GENERAL CLAUSE. This clause has a very limited operation. We have already remarked, that it is usually restricted to perils of a like kind with those already enumerated ; and although this phrase has been declared to be substantial and material, it might be difficult to hold an insurer liable under this clause, when he would not have been liable under some one of the enumerated perils. SECTION XXI. PROHIBITED TRADE. Tins is not the same with contraband trade (which belong? to war), although the words are sometimes used as if they were synonymous. It is perfectly lawful for a ship to break through a blockade if it can, or to carry arms or munitions of war to a belligerent. This would be contraband trade. And it is per- fectly lawful for the State whose enemy is thus aided, to catch, seize, and condemn the vessel that does this, if it can. The vessel takes upon itself this risk ; and it is not covered by a common policy, unless the purpose is disclosed and permitted. Prohibited trade belongs to a time of peace. It is either trade prohibited by the State to which the ship belongs, — and then it is 398 MARINE INSURANCE. wholly illegal, and the insurers are not only not answerable under a general policy for a loss occasioned by this breach of law, but an express bargain to that effect would itself be illegal and void ; or it may be trade prohibited only by a foreign State. And then it is not an illegal act in the vessel by whose sovereign it is not prohibited. The intention to incur this extra risk should be communicated ; because the insurers should be enabled to take it into consideration. But in practice, our policies generally, if not universally, except expressly the risks arising from prohib- ited trade. The parties may always agree to add such risks, or except such, as they choose. SECTION XXII. DEVIATION. As the insurers are entitled to know, either from information given them, or from the known course of the trade, what risks they assume, it is obvious that the insured have no right to change those risks, and that, if they do, the insurers are not held to the new risk. Such a change of risk is called a devia- tion ; it certainly discharges the insurers ; and although the word originally meant in law what it means commonly, a depart- ure from the proper course of the voyage, it now means, in the law of insurance, any departure from or change of the risks insured against. And it discharges the insurers, although it does not increase the risk, as they have a right to stand by the exact bargain they have made. There maybe a deviation while the ship is in port ; or where the insurance is on time, and no voyage is indicated. And a very slight deviation may suffice to discharge the underwriters. But no deviation discharges the insurers, or, in the language of the law, no change or risk is a deviation, unless it be volun- tary, that is, not if there was or seemed to be a sufficient neces- sity for it. The proper course — a departure from which is a deviation — is always the usual course, provided there be a usage ; for a mas- ter is not bound to follow their track wherever one or two have gone before, but must be allowed his own reasonable discretion. DEVIATION. 3gg If there be no course so well established that every one would be expected to follow it, the master must go to his destined port in the most natural, direct, safe, and advantageous way. An extraordinary and unnecessary protraction of a voyage would be a deviation. But the mere length of the voyage, with- out other evidence, would not pi'ove this. Liberty policies, so called, are often made. That is, the insured is expressly permitted to do certain things, which, with- out such permission, would constitute a deviation. And a large proportion of the cases on the subject of deviation have arisen under these policies. Most of the phrases commonly used have been construed by the courts ; and generally quite strictly. A liberty to " enter " a port, or " touch " at a place, permits a ship to go in and come out, but it permits little delay, because for delay the word "stay" or "remain " is necessary. It is certain that no permission is necessary for any change of course or risk that is made for the saving of life, or even for the purpose of helping the distressed. Always provided, how- ever, that the change of course, or the delay, was no greater and no longer continued than this cause for it, actually and ration- ally considered, required. It is, however, equally well settled, that a change of course or of risk for the purpose of saving property is a deviation not justified by its cause. A delay for the purpose of towing a vessel is certainly a, deviation, unless there are persons on.board the vessel which is towed, and they can be saved in no other way. Sometimes it is intended that a ship shall visit many ports, and even go backwards and forwards, at places between the port from which she sails and that at which the voyage is finally to terminate. Such purposes as this are sometimes provided for by a policy on time ; and sometimes by express permission to go to and trade at certain ports. If permission be given to enter and stop at a dozen differ- ent ports, the vessel may omit any of them, or the whole, but must visit in the proper order all to which she does go. She cannot go back and forth. The substitution of a new voyage for that agreed upon is of course a deviation, and one that can seldom or never be justi- 400 MARINE INSURANCE. fied by any necessity, so as to carry the insurer's liability on the new voyage. If an entirely new voyage is intended, and a vessel sails upon it, but in the same direction in which she would have gone on the insured voyages, the policy never attaches, and the premium is never earned, because the ship never sails on the insured voyage. But if the ship is intended to pursue the insured voyage to its proper terminus, but at a certain point of the voyage to deviate by going into another port, there is no deviation until that point is reached, and the deviation actually begun ; because it is certain that no mere intention to deviate discharges the insurers until it is carried into execution ; and they are liable for a loss happening before the deviation. SECTION XXIII. THE TERMINI OF THE VOYAGE, AND OF THE RISK. These must be distinctly stated, whether they be termini of time or place. A policy from to , or from B to , or from to B, would be void. Nor would it be any better if the termini were named with apparent distinctness, but in such wise as to mean nothing, or nothing sufficiently cer- tain. A policy takes effect from its date, if the bargain was then complete, although not delivered until afterwards. And it may be remarked, that, if there be an unreasonable delay in the sail- ing of the vessel, the policy never attaches, for the bargain is considered as annulled. A policy on a vessel " at " such a place attaches when she is there in safety. But if there were a policy "to" a place, and another was made out between the same parties "at," or "at and from," the same place, the law would presume that the par- ties intended that the second policy should attach whenever the first one ceased by the arrival of the ship, without reference to the condition of the ship or her peril at the time. A policy on goods attaches to them at the time when it would have attached to the vessel had she been insured. The extent which should be given to the meaning of the word " port " is sometimes a question of some difficulty ; but in general all TERMINI OF THE VOYAGE, AND OF THE RISK. 401 places are within a port which belong to it by mercantile usage and acceptance, although not within the same municipal or legal precinct. " At and from " covers a vessel in a port, as well as after she leaves it. " From " only covers the vessel after she gets under way. " At and from," applied to goods, does not cover them in the port when they are on shore and warehoused, nor until they become subj ect to marine risk, by being water-borne. They are, however, covered, not only when they reach the ship, but as soon as they are put on board of boats or lighters, or any other usual water conveyance to the ship. And if insured to a port, they continue covered after they leave the ship by any usual conveyance for the shore, until they are safely landed. The word "at," applied to an island or a coast, may embrace all the ports therein, and cover the ship while sailing from one to another. " To a port and a market," covers a voyage to the port, and thence to every place to which, by mercantile usage or reasonable construction, a ship may go thence in search of a market ; and even to return to that port, if honestly with intent to learn there where a market could be found. If the insurance be to "a port of discharge," this does not terminate if the vessel goes to a port for inquiry, or for needful refreshment or repair. If it be "a final port of discharge," the insurance ceases upon such parts of the cargo as are left at one port or another, and continues on the ship, and on all the goods on board, until arrival at the port where they will be finally dis- charged. It is generally provided in time policies, that, if the vessel be at sea at the expiration of the time agreed on, the risk shall con- tinue until her arrival at a port of discharge, or at her port of destination. If then, before the expiration of the time, she is actually at sea, or has broken ground for the voyage, or if, when the time expires, she is in a port of necessity or restraint, she is considered at sea, but not otherwise. The English policies and our own contain a provision that the insurance continues on the ship " until she shall be arrived and. moored twenty-four hours in safety ; " and on the goods until they be "landed," or "safely landed." 26 402 MARINE INSURANCE. Under this clause, the ship is insured until moored in safety, so far as the perils insured against are concerned, but not against the peculiar and local dangers of the port, or the possi- biHty that a tempest there might injure her when moored ; for these dangers continue to exist as long as she stays there, and the liability of the insurers would never terminate. If she enters the harbor, and, before she is moored, is blown off, or ordered into quarantine, she is insured until this delay ceases and she is safely moored in port. And if before or within the twenty-four hours a dangerous storm begins, but does no dam- age to her until after the expiration of the twenty-four hours, the risk has terminated, and the insurers are not liable. SECTION XXIV. TOTAL LOSS AND ABANDONMENT. The law of insurance recognizes an actual total loss, and also a constructive total loss. It is actual when the whole prop- erty passes away, as by submersion or destruction by fire. It is a constructive total loss when the ship or goods are partially destroyed, and the law permits the insured to abandon the salvage or whatever is saved, to the insurers, and claim from them a total loss. By "abandonment" is meant, in insurance law, the transferring of the property insured, or what is left of it, to the insurers. The word is used, because originally the insured gave up, renounced, or abandoned the property, saying to the insurers, we will have nothing more to do with it, and you may do with it what you like. And the word is still always used, although now it means a transfer. And in the law of insur- ance, a constructive total loss is a partial loss made total by an exercise of the right of abandonment. That is, the actual loss took from the insured a part, and the abandonment took the rest, and so they have lost all. A constructive total loss is some- times called a "technical" total loss. The abandonment, we say, transfers all that remains of the property to the insurers. If nothing remains, or if that which remains has no value, there need be no abandonment, and this is an actual total loss. TOTAL LOSS AND ABANDONMENT. 403 The insured never need make an abandonment if he chooses not to do so. And if from such choice or neglect he makes no abandonment, his claim against the insurers is still valid ; but it is a different claim from that which it would have been if he had abandoned, because it is now to be settled as a par- tial loss, of which we shall speak hereafter. For it is the purpose and effect of an abandonment to convert an actual partial loss into a constructive total loss. And if he makes an abandonment when he has no right to make it, such aban- donment is wholly inoperative, unless the insurers choose to accept it ; but if they accept it, they must settle the loss as a total loss. The topics in relation to this subject which we will consider are: — i. The necessity of abandonment. 2. The right of aban- donment. 3. The exercise of this right. 4. The acceptance of the abandonment. 5. The effect of the abandonment, or of the absence of abandonment. 1. Of the Necessity of Abandonment. — It is said, that if a ship be completely wrecked and reduced to "a mere congeries of planks and iron," or if she has not been heard from for a sufficiently long time, there need be no abandonment, and the insured may claim as for a total loss, without one. In either case, or any other case, if the insurers pay a total loss, they are entitled to whatever shall come to hand of the property insured. And it is usual, and we think more proper, to abandon in both of these cases. 2. Of the Right of Abandonment. — The insured cannot convert every partial loss, however small, into a total loss, by abandonment, transferring the damaged property to the insurers. But by a rule which is nearly universal in this country, and not unknown abroad, if the damage by a peril insured against exceed one-half of the value of the property insured, — ■whether ship, goods, or freight, — he may abandon the property to the insurers, and claim as for a total loss. But if the vessel actually reaches her destined port, she cannot be aban- doned, although the repairs would cost more than half of her value. When we speak in another section of partial loss, it will be 404 MARINE INSURANCE. seen that, by the established usage o£ this country, an allowance of "one-third, new for old," is always made. This means, that if a new thing were given for an old one because the old one had been injured, the insurer would be more than indemnified. The sails, for example, might be so new that they had lost little of their value ; or so old, that they were of no value. To avoid inquiring into each case, usage has adopted, as a fair average to apply to all cases, that the thing injured has lost one-third of its value. When it is replaced by repairs, the insured therefore loses one-third of the cost of repair, and the insurers pay two- thirds. Now our policies provide that there shall be no total loss by abandonment unless the injury exceed fifty per cent, when " esti- mated as for a partial loss ; " that is, one-third off. Consequently, the repairs necessary to restore the vessel to a sound condition must amount to more than seventy-five per cent, of her value when repaired (one-third of which, twenty-five per cent., being cast cff, leaves fifty per cent.) before there can be an abandon- ment, which the insurers are bound to accept, and settle the loss as a total loss. The valuation in the policy, if there be one, generally determines the value on which this estimate is to be made. In New York and in Massachusetts, this seems to be distinctly held ; but the courts of the United States and of some of our States, incline to say that, whether the policy be valued or open, the value of the ship, the loss of one-half of which authorizes abandonment, is the actual value of the ship at the time the loss occurs, and that this value is to be proved by proper evidence. A loss by jettison, by salvage, by general average contribu- tion, by wages of sailors paid while they assisted in making the repairs, should be included in the fifty per cent. If the insured have lost a part of his goods by jettison, and have a claim for contribution which is not yet paid, the whole of his loss is to be included to make up the fifty per cent., and the insurers take the claim to contribution by abandonment. Thus, if his loss be by jettison of eight-tenths of his goods, it is eighty per cent., and if he has a claim for contribution in general average for FORM OF ABANDONMENT. 40s thirty-five per cent., this does not reduce his loss to forty-five per cent., so tliat he cannot abandon ; but he may call his loss eighty per cent, and abandon, and by the abandonment transfer to the insurers his claim for thirty-five per cent. The expense of repairs is to be taken at the place where actually made, or where they must have been made, if made at all. If a sale be lawfully made by the master, under the authority from necessity which we have considered in the chapter on the Law of Shipping, this is a total loss, and the insured must account for the proceeds. 3. Of the Exercise of the Right of Abandonment. — As an abandonment has the effect of an absolute transfer of the property to the insurers, and is intended for this purpose, it is obvious that it cannot be made by one who is not possessed of such title to the property, or such interest therein, as would enable him to make a valid transfer. There is no especial form or method of abandonment. But the proper and safe way is to do it in writing, and to use the word "abandon," or "abandonment," although other words of entirely equivalent meaning might suffice. It must be distinct and unequivocal, and state, at least in a general way, the grounds of the abandonment. The following would be a good and sufficient form : (101.) Abandonment. New York, January 9, 1878, 10 o'clock A. M. I have this day learned that my {or the) ship (or whatever the vessel is), insured by you {or of which you have instcred the cargo or freight or profits, as the case may be), has been vvreclied on her voyage from to {or has met with such or such a disaster, describing it generally), and that she now lies at {or that said cargo or what remains of it is now at ). And I do now and hereby abandon to you the ship, with her cargo and freight {or whichever of these interests was the subject of insurance), and shall claim payment of you as for a total loss. To the Insurance Company. {Signature^ If the abandonment be deficient in form, the insurers will 4o6 MARINE INSURANCE. ■waive any objection of this kind if they call for further proof, and otherwise act as if the abandonment were altogether sufficient. The insured may abandon at any time v/hen the ship by a peril insured, is taken for an uncertain period from the master's control, and the voyage is broken up and cannot be renewed, unless at a cost which of itself gives this right. The existence of the right depends upon the actual state of facts at the time, and not upon the supposed facts. Nothing, however, gives the right of instant abandonment, without a faithful endeavor of the master to find, if he can, and use, if he can, some means of deliverance and safety. But if, when delivered and restored to the master or owner, her damage amounts to more than half of her value, estimated as above stated, " as a partial loss," she may then be abandoned. If the precise voyage insured be broken up by a peril insured against, this justifies an abandonment, although the vessel might be put in condition to pursue a different voyage or render a different service. As the insurers, who take the salvage (or saved) property by abandonment, have a right to every possible opportunity to make the most of it, it follows as an invariable and universal rule, that the insured nntst make an abandonment immediately after he receives the intelligence v/hich justifies it; and if he does not, he will be regarded as having elected not to abandon, and no subsequent abandonment will have any effect. The abandonment may be made on information of any kind, if it be entitled to weight and credence. So even a general rumor, without specific intelligence to the insured, will authorize an abandonment, if the rumor seems to be well grounded and altogether credible. 4. Of the Acceptanxe of the Abandon:ment. — As there is no especial form or method of making an abandonment, so there is no regular and established form of accepting an aban- donment. Indeed, an acceptance, merely as such, or in so many words, is seldom made. And as the insurer's accepting is not necessary to give full effect to an abandonment which has. been made on proper grounds, and in the right way and time, it is seldom asked for. TOTAL LOSS AND ABANDONMENT. 407 The acceptance of the abandonment may be inferred from words, or acts. The question has arisen whether it could be inferred from mere silence; and, in general, it cannot. "An insurer is not bound," says Mr. Justice Story, "to signify his acceptance. If he says nothing, and does nothing, the proper conclusion is, that he does not mean to accept it." The rule may be stated thus. If the insurer, with a suffi- cient knowledge of the facts, says or does that which induces an honest insured to believe that he has accepted the abandon- ment, and will pay the loss, and to act on that belief, it is an acceptance, and is so far binding on the insurer. But if he neither says nor does what ought to produce this belief, then he is at liberty to say and prove if he can that the insured had no right to make an abandonment, and that the claim is only one for a partial loss. 5. Of the Effect of Abandonment. — We regard it is an ancient, reasonable, and well-established rule, that, if insurers pay as for a total loss, this payment entitles them to full posses- sion of all that remains of the property insured, and also of all rights, claims, or interests which the insured has in or to or in. respect of the property lost, and which, if he valued or enforced them himself, would, if added to the amount paid by the insurers, give him a double indemnity. Hence, if the insured has lost his goods by jettison, and has a claim for a general average contribution, and the insurers pay him for all his goods, they stand in his place, and acquire that claim for contribution which the loss of the goods gave him. And we should, very generally at least, extend this rule to the claim which a mort- gagee has on the mortgage for his debt. That is, if the insurers pay for the loss of the property which secures the debt, they acquire, to the extent of their payment, the mortgagee's claim against the debtor. By the abandonment, both the owner and the master become, to some extent, the trustees and agents of the insurers, in respect to the property abandoned ; and are bound to act, in relation to it, with care and honesty. Still, if the property, after abandonment, or after a loss for which there is to be an abandonment, be further lost or wasted, by the bad faith or 408 MARINE INSURANCE. neglect of the master, or of the consignee of the owner, while they continue to act as such, this loss must be made up by the owner, because, although they are, in a certain sense, agents of the insured, they are then agents of the owner, and he is responsible for them to the insured. Goods are totally lost if destroyed, or if so injured as to have little or no value for the purpose for which they are intended ; or if the voyage upon which the insurance on the goods was effected is entirely broken up. Bat a mere delay gives no right of abandonment. And, in addition to all this, the rule which permits abandonment if more than fifty per cent. be lost, of which ViC have already spoken, is applicable to goods, in this country ; subject, however, to the important qualification, that it does not apply if any substantial portion of the goods arrive at their destination uninjured; or if the goods are insured "free from average." And the rule of abandonment, salvage, and transfer to the insurers, is the same in relation to goods as to the ship. If there be many several shipments all insured, there may be a total loss of one, a partial loss of another, and no loss of a third. SECTION XXV. GENERAL AVERAGE. This subject belongs primarily to the law of shipping, and is treated of in the chapter on the Law of Shipping. It comes within the scope of the law of insurance only when any of the property which is lost or saved is insured. If an owner of property is insured, and other property is sacrificed to save the insured property from a peril common to it and to the sacrificed property, the insured property must pay such indemnity to the owner of the sacrificed property as will make them suffer alike. And the amount thus paid or contribu- ted by the insured property is a loss by a sea-peril, for which the insurers are liable. On the one hand, the insurers of the sacrificed property are under an obligation to pay for the loss thus made or incurred voluntarily, because it was not only the right, but the duty, of PARTIAL LOSS. 409 the master and crew to destroy a part rather than let the whole perish. It was therefore a loss by a peril of the sea, although purposely caused for the benefit of others; and the insurers must pay for it. On the other hand, the owners of the property sacrificed, acquire by its sacrifice a claim for contribution and indemnity ; and if the insurers pay them for their loss, they acquire their claim for contribution. And this they take advantage of, in some cases, by deducting it from the amount they pay, and in other cases by first paying all the loss, and then collecting all the contribution for their own benefit. We have already seen that the insurers cannot deduct the contribution for the purpose of bringing the loss below fifty per cent, and thereby prevent- ing an abandonment. SECTION XXVI. PARTIAL LOSS. A PARTIAL loss is simply a loss of a part, and not of the whole. The principal questions relating to it arise out of the rule of one-third off, new for old, which has been already spoken of. We repeat the rule, with the reason of it. A ship sails to-day with new copper. Another sails with her copper nearly worn out. Both meet with peril which requires new coppering. The first is new coppered, and the insurers pay for it, and the insured gains nothing, because the copper on her was worth as much as it is now. The second is also coppered, and the insurers pay for it. But this ship gains nearly the whole value of the copper put on, because the old copper was worth very little. Now the whole purpose and principle of the law of insurance is to indemnify the insured, or make his loss good, and no more. Formerly they tried to do it by finding out in each case how much the old materials had lost of their value. But this was found so difficult, that it was agreed upon by merchants and insurers to average all the cases, and consider that all old materials had lost one-third of their value. And the rule is found to work well in practice. The first effect of this rule is, that the thing or the part lost or injured, whether it be new or old, worn out or not worn at 410 MARINE INSURANCE. all, must be replaced or repaired in adaptation and conformity with the vessel, in the same way in which it would be if she were properly repaired at the owner's port, by his orders. This third part is generally deducted from dockage, moving the ship, and similar expenses, provided they are incidental to the main purpose of repair. The value of the old materials should be deducted from the expense of repair, before the third " new for old " is taken off. If a sea-peril makes it necessary to recopper a vessel, and the cost will be ^9,000, and her old copper is worth ^3,000, we should say that this should be deducted, leaving ^6,000, for two-thirds of which only (^4,000), one-third being off, new for old, the insurers would be liable. The other way would be, to say the cost of repair is ^9,000, of which the insurers would pay two-thirds (" one-third off "), or ^6,000; and then the insurers would be entitled to the ;?3,0O0 which her old copper brings. Then the loss of the insurers would be only ;g6,000 less $3,000, or $3,000, instead of $4,000, which the insurers would lose on the first way. Insurers have tried to make the second way the law ; but the first way is now pretty well established. If an owner effects insurance on a part only of the value of the property insured, — as if for $5,000 on a ship valued at $10,000, — he is insured for half, and is his own insurer for the other half, and he recovers in the same proportion from the insurers in case of a partial loss. Thus, if there be a partial loss of sails and rigging, or of repairs, amounting, after one- third is deducted, to $2,000, one-half of this is the loss of the insurers, and they pay it to him, and one-half is his own loss. The insurer takes no part of the risk of the market, and his liability is the same whether that rises or falls, although this may make a great difference as to the amount lost by the insured. What goods have lost from their original invoice value is the amount which the insurer pays. Thus, if he insures $10,000 on goods of which that is the original value, and they are so far damaged by a sea-peril, that at the port of discharge they bring, or are worth, only half of what they would have brought if they had not been damaged, the insurers are liable for $5,000, or that half, although the goods thus damaged USUAL SUBJECT AND FORM OF THIS INSURANCE. 411 may bring in the market of arrival the whole of their invoice cost or more. And if they bring but a quarter of it, the insurers pay no more than one-half, because the rest of the loss is caused by the falling market. If the goods have sustained damage or loss by leakage, or by breakage, or by natural decay, or from inherent defect in quality, — that is, not by a sea-peril, — before the partial loss occurs, a proportional deduction should be made from the partial loss, as the insurers are liable only for the injury resulting from that loss, and not for any part of that which already existed when the loss took place, or which has occurred since from causes against which they did not insure. CHAPTER XXVII. FIRE INStJRANCE. SECTION I. THE USUAL SUBJECT AND FORM OF THIS INSURANCE. This kind of insurance is sometimes made to indemnify against the loss by fire of ships in port ; more often of ware- houses, and mercantile property stored in them; or of personal property in stores or factories, in dwelling-houses or barns, as merchandise, furniture, books and plate, or pictures, or live stock. But by far the most common application of this mode of insurance is to dwelling-houses. Like marine insurance, it may be effected by any individual who is capable of making a legal contract. In fact, however, it is always, or nearly always, in this country, and we suppose elsewhere, made by companies. There are stock companies, in which certain persons own the capital and take all the profits by way of dividends ; and mutual companies, in which every one who is insured becomes thereby a member, and the net profits, or a certain proportion of them, are divided among all the members in such manner as 413 FIRE INSURANCE. the charter or by-laws of the company may direct. Sometimes both kinds are united, in whicli case there is a capital stock provided, as a permanent guaranty fund, over and above the premiums received, and a certain part or proportion of the net profits is paid by way of dividend upon this fund, and the residue divided among the insured. Of late years the number of mutual fire-insurance compa- nies has greatly increased in this country, and much the largest amount of insurance against fire is effected by them. The principal reason for this is, undoubtedly, their greater cheap- ness ; the premiums required by them being, in general, much less than in the stock offices. For example, if the insurance is effected for seven years, which is a common period, an amount or percentage is charged, about the same as that charged by the stock companies, or a little more. Only a small part of this is taken in cash ; for the rest a premium note or bond is given, promising to pay whatever part of the amount may be needed for losses which shall occur during the period for which the note is given. More than this, therefore, the insured cannot be bound to pay, and it frequently happens that no assessment whatever is demanded ; and sometimes, where the company is well established and does a large business upon sound princi- ples, a part of the money paid by him is refunded when the insurance expires, or credited to him on the renewal of the policy, if such be his wish. The disadvantage of these mutual companies is, that the premiums paid and premium notes constitute the whole capital or fund out of which losses are to be paid for. To make this more secure, it is provided by the charter of some companies, that they shall have a lien on the land itself on which any insured building stands, to the amount of the premium. But while this adds very much to the trustworthiness of the premium notes, and so to the availability of the capital, it is, with some persons, an objection, that their land is thus sub- jected to a lien or incumbrance. There is another point of difference which recommends the stock company rather than the mutual company. It is that the Stock company will generally insure more nearly the full value USUAL SUBJECT AND FORM OF THIS INSURANCE. 413 of the property insured ; while the mutual companies are gen- erally restrained by their charters from insuring more than a certain proportion, namely, from one-half to three-fourths of the assessed value of the property. It would follow, therefore, that one insured by a mutual company cannot be fully indemni- fied against loss by fire ; and may not be quite so certain of getting the indemnity he bargains for as if he were insured by a stock company. The method and operation of fire insurance have become quite uniform throughout this country ; and any company may appeal to the usage of other companies to answer questions which have arisen under its own policy ; only, however, within certain rules, and under some well-defined restrictions. In the first place, usage may be resorted to for the purpose of explaining that which needs explanation, but never to con- tradict that which is clearly expressed in the contract. And no usage can be admitted even to explain a contract, unless the usage be so well established, and so well known, that it may reasonably be supposed that the parties entered into the con- tract with reference to it. And not only the terms of the con- tract must be duly regarded, but those of the charter or act of incorporation. In regard to the execution of a fire policy, and what is necessary to constitute such execution, we say that delivery is not strictly necessary, and a signed memorandum may be suffi- cient, or, indeed, an oral bargain only, and that this insurance may be effected by correspondence, and that the contract is completed when there is a proposition and assent, as we havp already said in reference to marine insurance. It has been held in an action on a fire policy, as doubtless it would be on a marine policy, that a memorandum made on the application book of the company by the president, and signed by him, was not binding, where the party to be insured wished the policy to be delayed until a different adjustment of the terms could be settled, and after some delay was notified by the company to call and settle the business, or the company would not be bound, and he did not call ; because there was here no consummated agreement. So, too, a subsequent adop- 414 FIRE INSURANCE. tion or ratification of a policy made by an agent is equivalent, either in a fire or marine policy, to the making originally of the contract. SECTION II. THE COKSTRUCTIOM OF POLICIES AGAIXST FIRE. It is sufificient if the words of the policy describe the persons, the location, and the property, with so much distinctness that the court and jury have no difficulty in determining their iden- tity with a certainty which prevents any real and substantial doubt. In the construction of this as of other contracts, the inten- tion of the parties is a very important and influential guide; but it must be the intention as expressed; for otherwise, a con- tract which was not made would be substituted for that which was made ; and evidence from without the contract would be permitted to vary and to contradict it. Thus, where stock in trade, household furniture, linen, wearing-apparel, and plate were insured in a policy, the court held that the term "linen" must be confined to "household linen," and would not include linen drapery goods purchased on speculation. In a case where the policy required that the houses, buildings, or other places where goods are deposited and kept, shall be truly and accurately described, and the place was described as the dwelling-house of the insured, whereas he occupied only one room in it, as a lodger, this description was held sufficient. It was held in another case, that the insurance by an inn- keeper against fire of his "interest in the inn and offices," does not cover the loss of profits during the repair of the damaged premises. And in another, the words "stock in trade," when used in a policy of insurance in reference to the business of a mechanic, as a baker, were held to include not only the materials used by him, but the tools, fixtures, and implements necessary for the carrying on of his business ; and the words in question were held to have a broader application to the business of mechanics than to that of merchants. A policy upon wearing-apparel, household furniture, and the stock of a grocery, covers linen sheets and shirts actually laid in CONSTRUCTION OF POLICIES AGAINST FIRE. 415 for family use, and such as were laid in for sale or traffic in the usual way, in the store ; but not such as, being smuggled, were concealed and intended for secret sale. There is no material difference in respect to mistake, or the correction of it, between fire-policies and marine-policies ; and the law on this subject in relation to the latter has already been stated. And the same remark may be extended to the rule respecting the admission, as a part of the contract, of a memo- randum on the back of the policy, or attached to it by a wafer, and neither referred to in the policy itself, nor signed by the insurer. It is a general rule with our mutual insurance companies, that every one who is insured becomes a member of the com- pany. And it follows, necessarily, that every insured party is bound by all the laws and rules of the company, as by laws and rules of his own making. The mutual fire-insurance companies, by a law or rule which is perhaps universal, require that an application shall be made in writing ; and this written application is after a peculiar form, prescribed by the rules. It always contains certain definite statements, which relate to those matters which affect the risk of fire importantly. In each form of application sundry ques- tions are put, which are quite numerous and specific, and are those which experience has suggested as best calculated to elicit all the information needed by the insurers for the purpose of estimating accurately the value of the risk they undertake. Specific answers must be given to all these questions. And this application, with all these statements, questions, and answers, is expressly referred to in the policy, and made a part of the contract. It is common to state in the printed part of the formal appli- cation, that it is made on such and such conditions ; and these usually follow those statements which are deemed the most material in estimating the risk. These would be considered as express conditions, and therefore the substantial truth of all of them is a condition precedetit to any right of indemnity in the insured party. By the legal phrase condition precedent, is meant 4l6 FIRE INSURANCE. a condition which must be fully complied with before the con- tract can take effect. Hence, if any of these statements are false, the policy will be void. Sometimes there is no distinct application in writing, but the policy itself states the facts relied upon. For this purpose it contains many blanks, which are filled up according to the cir- cumstances of each case. It may happen that what is written in these places may be inconsistent with what is printed ; and then it is a general rule that what is written prevails, as that is more immediately and specifically the act of the parties, and may be supposed to express their precise purpose better than the printed phrases which were prepared without especial refer- ence to any particular case. But this rule would not be applied where it would obviously operate injustice. Policies of fire insurance, especially of mutual companies, often contain a scale of premiums, as calculated upon different classes of buildings, of stocks in trade, or other property, in conformity with what is thought to be the greater or less risk of fire in each case. This is a matter of special importance ; and if a statement were made by an applicant which put his building or property into a class of which the risk and premium were less than for the class to which the building or property actually belonged, and in that way an insurance was effected at such less premium, the policy would undoubtedly be void, even if the false statement were made innocently. When certain trades or occupations, or certain uses of build- ings, or kinds and classes of property, are enumerated as "haz- ardous," or otherwise specified as peculiarly exposed to risk, the rule, The expression of one tiling excludes what is not expressed, is applied, and sometimes with severity. This is better illus- trated by marine insurance. Thus, in a case in New York, precisely in point, dried fish were enumerated in the inemoran- dum clause as free from average, and " all other articles perish- able in their own nature." It was held that the naming of one description of fish implied that other fish were not intended ; and that the subsequent words, " all other articles perishable in their own nature," were not applicable, and did not repel this implication. The same rule would be applied, for the same reason> and in the same way, to cases of fire insurance. CONSTRUCTION OF POLICIES AGAINST FIRE. A^7 If the printed conditions represent one class of buildings, or goods, or property, as more hazardous than another, it would not be competent for the insured, whose property was of that kind, to prove by other testimony that it was not more hazardous in fact. Moreover, a description of the property insured, as it is a description for a contract on time, is held to amount to an agreement that the property shall continue within the class where it is put, or at least shall not enter into another that is declared to be more hazardous, during the operation of the policy. There must, however, be a rational, and perhaps a lib- eral, construction of this rule. Thus, it does not apply where a single article, or one or two, are kept in a store as a part of the stock of goods, although that article, as cotton in bales, is among those enumerated as hazardous. So if the "storing of spirituous liquors " is prohibited, the keeping of wine or brandy in a private house for consumption, or even for sale by retail to boarders, would not discharge the insurers. In New York it was held that where oils and turpentine, which were classed among hazardous or extra-hazardous articles, were introduced for the purpose of repairing and painting the dwelling insured, and the dwelling was burned while being so repaired, the insurers were liable. But if the building is gen- erally appropriated to a more hazardous occupation than the proposals or the policy indicate, or if the jury find that the introduction of these goods materially increased the actual risk, evidence would be received as to the intention of the parties to the contract. And the true meaning of the contract and the intent of the parties would be considered. Thus, where the " storing " of certain goods was prohibited, as " hazardous," it was held that the having a pipe or two of such articles in the cellar, from which smaller vessels in the store were replenished, did not come within the meaning of the word " storing " in the policy, any more than would the keeping of such articles for home consumption in a dwelling-house insured by a similar policy. So a description of a house as " at present occupied as a dwelling-house, but to be hereafter occupied as a tavern, and privileged as such," is only permission that it should be a tavern, and creates no obligation to occupy and keep it as a 27 41 8 FIRE INSURANCE. tavern on the part of the insured. But if the language is, " to be occupied as so or so, but not" in some other certain way, this restriction is a part of the bargain ; and, if the building is occupied in the way prohibited, the insurers are discharged. So if the premises are described as a " private residence," the insurance is not avoided by the fact that the occupants moved out of the house, leaving it vacant, and not the " residence " of any one, unless the jury find that the risk was thereby materi- ally increased. But where the property was represented as a " tavern barn," and the insured permitted its occupation as a livery-stable, the policy was held to be discharged, although the keeper of the livery-stable was removable at the pleasure of the insured. Where a building insured by a company was rep- resented, at the time of effecting the insurance, as connected with another building on one side only, and before the loss happened it became connected on two sides, the policy was held not to be avoided unless the risk thereby became greater. The general subject of alterations of property under insur- ance against fire is not without difficulty. On the whole, how- ever, mere alterations, although expensive and important, do not necessarfly and of themselves avoid the insurance or discharge the insurers ; but they have this effect, if they are found by the jury to increase the risk materially ; or if they are specifically prohibited in the policy. Still other questions may arise where material alterations are made, all of which are not easily disposed of. The following are instances. Suppose one gets his dwelling-house insured for seven years, truly describing it as having a shingled roof. After two or three years he determines to take off the shingles, but says nothing to the insurers about it. If he now puts on slates, or a metallic covering which does not require soldering, he does not increase the risk ; nor is the work of putting on the new covering hazardous, and we see no grounds for its having any effect on the policy. But suppose the new metallic covering is secured by soldering. This is certainly a hazardous operation. And if the building takes fire in consequence of this operation, the insurers are certainly discharged. If the operation is conducted safely through, and the work CONSTRUCTION OF POLICIES AGAINST FIRE. 419 is entirely finished, we consider it clear that this greater hazard for a time has no effect whatever on the policy after that time, and after all the greater hazard has expired. But let us suppose that while this operation is going forward, and the house is thereby certainly exposed to an increase of risk, the house is set on fire by an incendiary, — without the slightest reference to this alteration, — and burns down. It is not, perhaps, settled, either by authority or practice, whether the insurers are or are not dis- charged. I am, however, of opinion that the principles of insur- ance would lead to the conclusion, that, if the house be burned from a perfectly independent cause, during an increase of risk incurred for good cause and in good faith, the insurers are not thereby discharged. It is, however, certain, that it is always prudent to obtain the consent of the insurers to any proposed alteration. If such consent be asked, and refused, we do not see that the insurers stand on any better footing, or the insured on any worse one ; and if the alterations -are made and a loss occurs, we should say that the insurers would not, generally at Ifeast, be discharged because of their refusal, unless they would have been discharged if the alteration had been made without their knowledge. For if they have a right to object '6r refuse, it could only be because the contract in effect prohibited this alteration ; and then their refusal was not wanted for their defence. And if they have no right to refuse, they can acquire- no rights by the refusal. If the alteration be of a permanent character, and causes a material increase of the danger of fire, then it is a substantial breach of contract ; and we should hold that the insurers were discharged as soon as the alteration was made, and indeed as soon as the making of it, or preparations for it, as scaffolding or carpenter's work, materially increased the risk. And they are discharged equally, whether the fire be caused by the alteration, or by the work done, or by some wholly independent matter. • The insured may make reasonable repairs without especial leave, and the insurers are liable, although the fire take place while the repairs are going on ; and even if it be caused by the repairs. 420 FIRE INSURANCE. It may be added, that our fire-policies now in use frequently give the insured the right of keeping the property in repa'.r. The failure of the insured to repair a defect in the building, arising after the contract is made, does not prevent the insured from recovering unless he was guilty of gross negligence. SECTION III. THE INTEREST OF THE INSURED. Any legal interest is sufficient. And if it be equitable in the sense that a court of equity will recognize and protect it, that is sufficient ; but a merely moral or expectant interest is not enough. So one has an insurable interest in a house placed on another's land with that other's consent, but not if placed there without license or shadow of title. So, too, one who has made only an oral bargain with another to purchase the other's house, cannot insure it ; but if there be a valid contract in law, or if by writing or by part performance it is enforceable in a court of equity, the purchaser may insure. So, if a debtor assign his property to pay his debts, he has an insurable interest in it until the debts are paid, or until the property be sold. A partner may have an insurable interest in a building pur- chased with partnership funds, although it stands upon land owned by the other partner. A mortgagor may insure the whole value of his property, even after the possession has passed to the mortgagee, if the equity of redemption be not wholly gone. So he may if his equity of redemption is seized on execution, or even sold, so long as he may still redeem. And in case of loss he recovers the whole value of the building, if he be insured on it to that amount. A mortgagor and a mortgagee may both insure the same property, and neither need specify his interest, but simply call it his property. The mortgagee has an interest only equal to his debt, and founded upon it ; and if the debt be paid, the inter. est ceases, and the policy is discharged ; and he can recover no more than the amount of his debt. It has been held, that if a mortgagor is bound by his contract THE INTEREST OF THE INSURED. 421 with the mortgagee to keep the premises insured for the benefit of the mortgagee, and does keep them insured in his own name, the mortgagee has an equitable interest in or lien upon the pro- ceeds of the policy. One who holds property only in right of his wife may insure the property, even if his wife be only a joint tenant. And a tenant for years, or from year to year, may insure his interest, but would recover only the value of his interest, and not the value of the whole property. We have said that, generally, any one having any legal interest in property may insure it as his own. Ikit there is pne important exception to or modification of this rule. Ly the charters of many of our mutual insurance companies, the com- pany has a lien, to the amount of the i^remium note, on all prop- erty insured. It is obvious, therefore, that no such description can be given, or no such language used, as would induce the company to suppose they had a lien when they could net luve one, or would in any way deceive them as to the validity or value of their lien. In all such cases all incumbrances must be stated, atid the title or interest of the insured fully stated in all those particulars in which it affects the lien. A trustee, agent, or consignee may insure against fire, as he may against marine loss. Generally, the consignee is not bound to insure against fire, but may, at his discretion. He may insure, expressly, his own interest in them for advances, or the owner's interest. It has been held that a consignee may, by virtue of his implied interest and authority, insure, in his own name, goods in his possession against fire, to their full value, and recover for the benefit of the owner. And if the interest be not expressed, the policy will be construed as not covering the interest of the owners, if, upon a fair construction of the v. ords and facts, it seems to have been the intention of the parties only to secure the consignee's interest. And an insurance against fire upon merchandise in a warehouse, "for account of whom it may concern," protects only such interests as were intended to be insured at the time of effecting the insurance. It is now common for a commission merchant to cover in one policy, in his own name, all the goods of the various owners 422 FIRE INSURANCE. who have consigned goods to him. It has been held, that the words "goods held on commission," in fire-policies, have an .effect equivalent to the words " for whom it may concern," in marine-policies. A person having a lien on a building under a State law has an insurable interest in the building. A consignee of goods, sent to him, but not received, may insure his own interest in them. So, any bailee (which means any person to whom property has been delivered for any pur^ pose) who has a legal interest in the chattels which he holds, although this be temporary and qualified, may insure the goods against fire. Thus a common carrier by land, who has alien on the goods, and is answerable for them if lost by fire (unless it be caused by the act of God or the public enemy), may insure the goods to their full value against fire. The insurers must know whom they msure, for they may have a choice of persons, and it is important to them to know whether they are to depend on the care and honesty of this man or that man. The insured must so describe the owner as not to deceive them on this point, and so he must the kfnd of owner- ship. Thus, if he aver an entire interest in himself, he cannot support this by showing a joint interest with another ; and if in his action he declare the latter, proof of the former is not sufficient. So, too, there must be actual authority to make the insur- ance. This may be express, or implied, in some cases, as it seems to be implied with the consignee, or the carrier, and per- haps, generally, with any one who has an actual possession of, interest in, and lien on, the property. But a tenant in common does not derive from his cotenancy authority to insure for his cotenant ; nor could a master of a ship or a ship's husband, merely as such, insure the owner's interest against fire. SECTION IV. DOUBLE INSURANCE. By this, the party originally insured becomes again insured. If, by a double insurance, the insured could protect himself over WARRANTY AND REPRESENTA TION. 423 and over again, he might recover many indemnities for one loss. This cannot be permitted, not only because it is opposed to the first principles of insurance, but because it would tempt to fraud, and make it very easy. In this country, fire-policies usually contain express and exact provisions on this subject. They vary somewhat, but, ■generally, they require that any other insurance must be stated by the insured, and indorsed on the policy ; and it is a frequent condition, that each office shall in that case pay only a ratable proportion of a loss ; and it is often added, that, if such other insurance be not so stated and indorsed, the insured shall not recover on the policy. And it has been held that such a condi- tion applies to a subsequent as well as to a prior insurance ; or to an insurance of any part of the property covered by the other policy. Nor will a court of equity relieve, if sufficient notice and indorsement have not been made. But it has been held that a valid notice might be given to an agent of the company, who was authorized to receive applications and survey projaerty pro- posed for insurance. In some instances the charter of the company provides that any policy made by it shall be avoided by any double insurance of which notice is not given, and to which the consent of the company is not obtained, and expressed by their indorsement in the policy. But this would not apply to a non-notice by an insured of an insurance effected by the seller on the house which the insured had bought, if this policy were not assigned to the buyer. SECTION V. WARRANTY AND REPRESENTATION. A WARRANTY is 3. part of the contract ; it must be distinctly expressed, and written either in or on the policy, or on a paper attached to the policy, or, as has been held, on a separate paper distinctly referred to and described as a part of the policy. Then it operates as a condition precedent ; that is, as a condition of the policy, which if it be not performed, the policy never takes effect ; if it be not performed, there is no valid contract ; nor can the non-performance be helped by evidence that the thing 424 FI'^E INSURANCE. warranted was less material than was supposed, or, indeed, not material. It may be a warranty of the present time, or, as it is called, affirmative, or of the future, and then it is promissory. And it may be, although of the present and affirmative, a continuing warranty, rendering the policy liable to avoidance by a non- continuance of the thing which is warranted to exist. Whether it is thus continuing or not must evidently be determined by the nature of the thing warranted. A warranty that the roof of a house is slated, or that there are only so many f.re-places or stoves, would, generally, at least, be regarded as continu- ing; but a warranty that the building was five hundred feet from any other building, would not cause the avoidance of the policy if a neighbor should afterwards put up a house within one hundred feet, without any act or privity of the insured. We have seen, that statements made on a separate paper may be so referred to as to make them a part of the policy. And it is usual to refer in this way to the written application of the insured, and to all the written statements, descriptions, and answers to questions, which he makes for the purpose of obtaining insurance. But a fair and rational, or, in some cases, a liberal construction, will be given to such statements. It is quite certain that the word warranty need not be used, if the language is such to import unequivocally the same mean- ing. And an indorsement made upon the policy before it is executed may take effect as a part of it. A statement may be introduced into the policy itself, and be construed not as any warranty, but merely as a license or per- mission of the insurers that premises may be occupied in a certain way, or some other fact occur without prejudice to the insurance. A representation, in the law of insurance, differs from a war- ranty, in that it is not a part of the contract. If made after the signing of the policy or the completion of the contract, it cannot of course affect it. If made before the contract, and with a view to effecting insurance, it is no part of the contract ; but if it be fraudulent, it makes the contract void. And if it WARRANTY AND REPRESENTATION. 425 be false, and known to be false by him who makes it, it is his fraud. To have this effect, however, it must be material ; and there is no better test or standard for this than the question, whether the contract would have been made, and in its present form or on its actual terms, if this statement had not been made and believed by the insurers. If the answer is, that the con- tract would not have been made if this statement had not been made, it is material ; otherwise, not. The general rule is, that the statements in the application on a separate sheet, have the effect only of representations, and do not avoid the policy unless void in a material point, or unless the policy makes them speci- ally a part of itself, and gives them the effect of warranties. A representation may be more certainly and precisely proved if in writing ; but it will have its whole force and effect if only oral. In some instances, by the terms of the policies, any mis- representations or concealments void the policy. And it is held that the parties have a right to make such a bargain, and that it is binding upon them ; and the effect of it would seem to be to give to representations the force and influence of war- ranties. There seems to be this difference between marine-policies and fire-policies. In the former, a material misrepresentation avoids the policy, although innocently made ; in the latter it has this effect only when it is fraudulent. This distinction seems to rest upon the greater capability, and therefore greater obli- gation, of the insurers against fire to acquaint themselves fully with all the particulars which enter into the risk. For they may do this either by the survey and examination of an agent, or by specific and minute inquiries. If a warranty is broken, however innocently, it avoids all policies, whether material or not. And this difference between a warranty and a representa- tion is very important. Concealment is the converse of misrepresentation. The insured is bound to state all that he knows himself, and all that it imports the insurer to know, for the purpose of estimating accurately the risk he assumes. A suppression of the truth has the same effect as an expression of what is false. And the 426 FIRE INSURANCE. rule as to materiality and as to a substantial compliance is the same. Even the rumor of an attempt to set fire to a neighboring building should be communicated ; because the insurer should be informed of any unusual fact, or any circumstance relating to the building materially enhancing the risk. Insurers must be understood as knowing all those matters of common information that are as much within their reach as in that of the insured ; and these need not be especially stated. But any special circumstance, as a great number of fires in the neighborhood, and the probability or belief that incendiaries were at work, should certainly be communicated ; and silence on such a point — especially if the place of business of the insurers was at a considerable distance from the premises — would operate as a fraud, and avoid the policy. And any ques- tions asked must be answered, and all answers must be as full and precise as the question requires. If there were a provision in the policy that a certain fact, if existing, must be stated, silence in reference to it would avoid the policy, however imma- terial the fact. Concealment in an answer to a specific question can seldom or never be justified by showing that it was not material. Thus, in general, nothing need be said about title. But if it be inquired about, full and accurate answers must be made. Where the insurance company has, by the terms of the policy, a lien upon or interest in the premises insured, to secure the premium note, here it is obvious that any concealment of incumbrance or defect of title would operate as a fraud, and defeat the policy. But in all such cases it is probable that specific questions are put respecting the estate and title of the insured. It is often required that all buildings standing within a cer- tain distance of the property insured shall be stated; but this might not always be considered as applicable to personal and movable property. Still, an insurance of chattels, described as in a certain place or building, would be held to amount to a warranty that they should remain there ; or rather it would not cover them if removed into another place or building, unless, by THE RISK INCURRED BY THE INSURERS. 427 some appropriate phraseology, the parties expressed their inten- tion that the insured was to be protected as to this property wherever it might be situated. It is not uncommon to insure goods that are in course of transit, against fire ; but then it is usual to name the places from which and to which the goods are passing. SECTION VI. THE RISK INCURRED BY THE INSURERS. At the time of the insurance, the property must be in existence, and not on fire, and not at that moment exposed to , a dangerous fire in the immediate neighborhood ; because the insurance assumes that no unusual risk exists at that time. The risk taken is that of fire. And therefore the insurers are not chargeable if the property be destroyed or injured by the indirect effect of excessive heat ; or by any effect which stops short of ignition or combustion, when this heat is pur- posely applied, and the injury is caused by the negligence of the person in charge of it. Where, however, an extraordinary fire occurs, the insurers are clearly liable for the direct effects of it, as where furniture or pictures are injured by the heat, although they do not actually ignite. And they are liable for the injury from water used to extin- guish the fire ; and for injury to or loss of goods caused by their removal from immediate danger of fire ; but not if removed from a mere apprehension from a distant fire, even if it be reasonable; and not if the loss or injury might have been avoided by even so much care as is usually given in times of such excitement and confusion. In some instances, the policies require that the insured should use all possible diligence to preserve their goods ; and such a clause would strengthen the claim for injury caused by an endeavor to save them by removal. So the insurers are liable for injury or loss sustained by the blowing up of build- ings to arrest the progress of a fire. Lightning is not fire ; and if property be destroyed by lightning, the insurers are not liable, unless there was also ignition ; or unless the policy expressly insures against light- ning. 428 FiJiE INSURANCE. An explosion caused by gunpowder is a loss by fire ; not so is an explosion caused by steam. Whether, when the negligence of the insured or his servants is to be considered as the sole or direct cause of the fire or loss, the insurers can be held, has been somewhat considered. And as thio is the most common and universal danger, and the very one which induces most persons to insure, there has been some disposition to say that no measure or kind of mere negligence can operate as a defence. And in effect this is almost the law. But if the loss be caused by negligence of the insured himself, of so extreme and gross a character that it is hardly possible to avoid the conclusion of fraud, the defence might be a good one, although there were no direct proof of fraud. That the fire was caused by the insanity of the insured should be no defence. SECTION VII. VALUATION. Valuation, precisely as it is understood in a marine policy, seldom enters into a fire-policy, — never, perhaps, in a policy made by any of those mutual companies who now do a very large part of the insurance of this country. And quite seldom is a building valued when insured by a stock company. If a loss happens, whether it be total or partial, the insurers are bound to pay only so much of the sum insured as will indemnify the assured. But, as care is always taken — and sometimes required by law — not to insure upon any house its whole value, it seldom happens, and, if the proper previous precautions are taken, should never happen, that any question of value arises in a case of a total destruction of a building by fire. But mutual companies are usually forbidden by their charter to insure more than a certain proportion of the value of a build- ing ; and this requires a valuation in the policy, which is con^ elusive, for some purposes, against both parties. Of course, the insurers can never be held to pay more than the sum insured. And if their charter or by-laws permit a company to insure only a certain proportion of the value, as three-fourths, — on the one hand, if the company insure more than that proportion, as ALIENATION. 429 $3,500 on property valued at ^4,000, they arc held to pay only $3,000, and the assured cannot show that the building was really worth more than $4,000 ; and, on the other hand, the valuation, if not fraudulent, is conclusive against the insurers if the building is destroyed, and they cannot show, in defence, that the building was worth less. I know nothing to prevent the parties from making a valued policy, if they see fit to do so, although this has been questioned. It is not uncommon for companies who insure chattels, — as plate, pictures, statuary, books, or the like, — to agree on what shall be the value in case of loss. Sometimes the policy reserves to the insurers the right to have the valuation made anew by evidence, in case of loss. Then if a jury find a less valuation, the insurers pay the same proportion of the new value which they had insured of the former valuation. The value which the insurers or goods must pay is their value at the time of the loss. And it has been held, that q fair sale at auction, with due precaution, will be taken to settlo that value after the fire, provided the insurers have reasonable notice or knowledge that the auction is to take place. The valuation determines the amount which the insurers must pay only in case of total destruction. If the building is only injured by fire, the insurers may either repair it, or pay. the cost of repairing it. SECTION VIII. ALIENATION. Policies against fire are personal contracts between the insured and the insurers, and do not pass to any other party, without the express consent of the insurers. It is essential to the validity and efficacy of this contract, that the insured have an interest in the property when he is insured, and also when the loss takes place ; for otherwise it is not his loss, and he can have no claim for indemnity. If, therefore, he alienates the whole of his interest in the property before the loss, he has no claim ; and if he alienates a part, retaining a partial interest, he has only a partial and propor- tionate claim. 430 FIRE INSURANCE. After a loss has occurred, the right of the insured to indem- nity is vested and fixed ; and this right may be assigned for value, so as to give an equitable claim to the assignee, without the consent of the insurers. Policies against fire contain a provision that an assignment of the property, or of the policy, shall avoid the policy. So, generally, it is hardly worth while to inquire what right an assignee, without consent, would acquire at common law, or in equity, where there is no such provision. A dissolution of the partnership before loss, and a division of the goods, so that each partner owned distinct portions, was held to be in violation of a condition against "any transfer or change of title in the property insured." A conveyance by one insured, intended tp secure a debt, will be treated in a court of equity as a mortgage, and there- fore it does not terminate the interest of the insured. A contract to convey is not an alienation. Nor is a conditional sale, where the condition must precede the sale, and is not yet performed. Nor is a mortgage, not even after breach, and perhaps entry for a breach, and not until foreclosure. Nor selling and immediately taking back. Sometimes alienation by mortgage is directly prohibited. If several estates are insured in one policy, and one or more are aliened (or conveyed away), the policy is void as to those only which are aliened. If many owners are insured in one policy, a transfer by one or more to strangers, without the act or concurrence of the other owners, will avoid the policy for only so much as is thus transferred. In practice, care should be taken to have all such transfers regularly made and notified, and the consent of the insurer obtained, fully authorized, and duly indorsed or certified, and all the rules or usages of the insurers in this respect complied with. SECTION IX. NOTICE AND PROOF. WriERE the policy requires a certificate of the loss, the pro- duction of it is a condition precedent to any claim for payment. ADJUSTMENT AND LOSS. 43 1 And it must be such a certificate as is required ; but a substan- tial compliance with its requirements is sufficient. So, too, if the notice is to be given fortlLwith, there must be no unrea- sonable or unnecessary delay. And all the circumstances of the case are considered, in determining whether there was or was not due diligence. Where a certificate is required to be furnished "as soon as possible," it is still sufficient if it be furnished within a reasonable time. But where the fire took place in November, and the account of loss was not furnished till the March following, it was held not to be a compliance with the conditions. Generally, this is a question for the jury. In fire-policies, as the premises may be supposed always open to the inspection of the agents of the insurers, a general notice of the fire will be enough. SECTION X. ADJUSTMENT AND LOSS. Insurers against fire are not held to pay for loss of profits, gains of business, or other indirect and remote consequences of a loss by fire. We do not know, however, why profits may not be expressly insured against fire, where it is not forbidden by, or inconsistent with, the charter of the insurers. There is one wide difference between the principle of adjust- ment of a marine policy and of a fire-policy. In the former, if a proportion only of the value is insured, the insured is con- sidered as his own insurer for the residue, and only an equal proportion of the loss is paid. Thus, if, on a ship valued at ^10,000, ^S,ooo be insured, and there is a loss of one-half, the insurers pay only one-half of the sum they insure, just as if some other insurer had insured the other $5,000. But in a fire- policy, the insurers pay in all cases the whole amount which is lost by fire, provided only that it does not exceed the amount which they insure. Most of the fire-policies used in this country give the insurers the right of rebuilding or repairing premises destroyed or injured by fire, instead of paying the amount of the loss. If, under this power, the insurers rebuild the house insured, at a 432 FIRE INSURANCE less cost than the amount they insure, this does not exhaust their HabiHty; they are now insurers of the new building for the difference between its cost and the amount they have insured. And if the new building burns down, or is injured while the policy continues, the insured may claim so much as, added to the cost already incurred, shall equal the sum for which he was insured. It may be important to add, that, under our common mutual policies, the insured will also be liable for assessments for losses after the destruction of his building by fire, during the whole term of the policy. There is no rule in fire-insurance similar to that which makes a deduction, in marine-insurance, of one-third, new for old. Still, the jury, to whom the whole question of damages is given, are to inquire into the greater value of a proposed new build- ing, or of a repaired building, and assess only such damages as shall give the insured complete indemnity. Where insurers reserved a right to replace articles destroyed, if the insured refused to permit them to examine and inventory the goods that they might judge what it was expedient for them to do, such conduct on the part of the insured would be evidence to the jury of great weight, to prove an overstate- ment of loss. I have not thought it would be useful to give Forms of various policies. Applicants never make them, as they are always furnished by the insurance companies; each one having its own form, and using no other. But the following Forms, of immediate notice of loss, of a later and fuller statement under oath, with a magistrate's certificate, and assignments of policies, may be found useful. They must be all adapted, in practice, to the peculiar circumstances of each case. (102.) To the Fire-Insurance Company. Take Notice, Tliat on the day of inst. (or last) a fire broke out in the building No. in Street, in the city of {or otherwise describe the location), whereon I am insured by you, by your policy, No. the sum of dollars. I have not yet learned and do not know, in what way the fire was caused ; but as soon as I FORMS USED IN FIRE INSURANCE. 433 am able, I will give you further information on the subject. {If the insured or his agent knows, or has reasonable cause for supposing, how the fire was caught, he should say so, and state what particulars he can.) The house was wholly {or partially) destroyed by fire ; and I shall claim a payment from you under your policy. Written and sent this day of in the year {Signature) {Seal.) Witness to the signature and sending, {Signature of Wiiness.) Some insurance companies, and, indeed, the express provi- sions of some policies, require that a sworn statement of the facts and circumstances of the loss, and the particulars of the claim, be given to the insurance company, with the certificate of a magistrate. I do not know that this course might not be always prudent. The form in which it is done must vary in each case, and be adapted to the peculiarities of that case. But the following Form will generally be a safe guide. (103.) To the Insurance Company. "Whereas the said Insurance Company, by their policy numbered , and dated on the day of in the year caused me to be insured in the sum of dollars against loss or damage by fire to the following-described building ; that is to say {here describe or designate the building sufficiently to show clearly where and what it was, taking the description from the policy, but not copying it at length). Now, I, the said {name of the assured) having been solemnly sworn, do depose and say, — ■ 1. That on the day of now last past, between the hours of and a fire broke out in said building, whereby the same was greatly damaged {or destroyed), and the said fire was, according to my best knowledge and belief, caused \sy{here set forth the causes so far as they are known, or supposed on reasonable grounds), and I aver that the said fire was not caused by me, or by my design and occurrence, or with any previous knowledge on my part, or in any manner attributable to me or to my agency, direct or indirect. 2. That I was interested in the said property in the following manner: that is to say {Iiere say whether the insured owned the property himself or was a tenant of it, or a landlord, or mortgagor or mortgagee, or trustee, or how otherwise he was interested). 3. That there was no other insurance against fire of the said property (or, if there was any other, state what it was). 28 434 FIRE INSURANCE. 4. That the occupants of the building at the time of the fire were, so far as is known to me, the following persons (set forth the names of the occu- pants, the parts of the biiildine; occupied by each one, and the purpose for which it was occupied). 5. That the actual value of the building in dollars at the time of the fire, was, according to my best behef and judgment, dollars. {If the property was personal, as goods, furniture, or the like, say, as may appear by the schedule annexed.) 6. That the whole of said value was lost by the fire ; and being more than the sum insured thereon, I now claim of said insurance company said sum of dollars. {Or if the buildiitg was injured, and not destroyed, then say that so much of the value — stating the amount — of said building was lost by the fire, inasmuch as the building, if repaired, cannot be restored to as good condition as before, for a less amount than that szim.) Witness my hand at this day of in the year {Signature.) {Certificate to be appended to the foregoing.) State of , ^ - ss. County of , ) I {name of the magistrate) a justice of the peace in and for said county {or what else may be his office), dwelling near to the property above mentioned, in the town {or city) of have investigated the circumstances attending the said fire, and am personally acquainted with the said {najne of insured), whose character is good ; and I believe that the above statement to which the said {name of insured) has made oath in my presence is true; that the loss cannot be imputed to fraud or mis- conduct on his part ; and that he has suffered by the fire a loss of dollars. I am not in any way interested in the said property, or in the said policy, or any claim under the same. In 'Witness of all of which I have hereunto set my hand and my seal {of office, if he has an official seal), at this day of in the year {Signature of Magistrate) {Seal.) (104.) Assignment of a Policy to be indorsed Thereon. I {name of insured) insured by the within policy, in consideration of a dollar paid to me by {name of the assignee)z.-aA for other good con- siderations, do hereby assign, and transfer to the said {name of the assignee) this policy, together with all the right, title, interest, and claim which I now have or hereafter may have, in, to, or under the same. FORMS USED IN FIRE INSURANCE. 435 "Witness my hand this day of in the year {Signature.) {Witness.) It is always best to write this assignment on tlie policy itself', but it may sometimes happen that this is not convenient or pos- sible ; the insured who wishes to make the assignment not hav- ing the policy within his possession or easy reach. Then the assured may use tlie following Form : (105.) Whereas, the Insurance Company, by the policy, numbered and dated on day of in the year caused me to be insured against loss or damage by fire on a certain building, being {designate the building by location or otherwise) in the sum of dollars ; now; I the said {name. of the insured), in consideration of one dollar paid to me by {name of the assignee) and for other good consid- erations, have transferred and assigned, and do by these presents transfer and assign unto the said {name of the assignee) the said policy of insurance, and all the right, title, interest, or claim, which I now have or ever may have, in, to, or under the same, and in and to any sum of money which now is or shall ever be payable thereon. Witness my hand this day of in the year {Signature^ {Witness^ If the policy be on goods, or if it be not a fire-policy, but a marine-policy, or a life-policy, then the assignment must be made to conform to the facts. It is always best to get the assent of the insurance company to the transfer before it is made. And always the assignment, when made, should be exhibited without loss of time, to them or to their agent authorized to give their assent, and this assent to the assignment be obtained and written upon the policy, or, if that cannot conveniently "be, on the assignment, and in the books of the insurance company. 436 LIFE INSURANCE. CHAPTER XXVIII. LIFE-INSURANCE. SECTION I, THE PURPOSE AND METHOD OF LIFE-INSURANCE. If a insures B a certain sum payable at B's deatli to B's representatives, we have only the insurer and insured, as in other cases of insurance. But if A insures B a sum payable to B or his representatives on the death of C, although C is often said to be insured, this is not quite accurate ; more properly, B is the insured party and C is the life-insured. Life-insurance is usually effected in this country in a way quite similar to that of fire-insurance by our mutual companies. That is, an application must be first made by the insured ; and to this application queries are annexed by the insurers, which inquire, with great minuteness and detail, into everything which can affect the probability of life. These must be answered fully ; and if the insurer be other than the life-insured, there are usually questions for each of them There are also, in some cases, questions which should be answered by the physician of the life-insured, and others by his friends or relatives ; or other means are provided to have the evidence of the physician and friends. These questions are not precisely the same in the forms given out by any two companies ; and we do not speak of them in detail here. The rules as to the obligation of answering them, and as to the- sufficiency of the answers, must be the same in life-insurance that we have already stated in the chapters on Fire and Marine Insurance ; or rather must rest upon the same principles. And the same rules and principles of construction therein set forth would doubtless be applied to the question whether a contract had been made, or at what time it went into effect. THE PREMIUM. 437 SECTION II. THE PREMIUM. If the insurance be for one year only, or less, the premium is usually paid in money, or by a note, at once. If for more than a year, it is usually payable annually. But it is common to provide or agree that the annual payment may be made quar- terly, with interest from the day when the whole is due. Notes are usually given ; but if not, the whole amount would be consid- ered due. If A, whose premium of ^100 is payable for 1878 on the 1st day of January, then pays %2^, and is to pay the rest quar- terly, but dies on the ist of February, the ^75 due, with interest from the ist of January, would be deducted from the sum insured. If the policy provides that the risk shall " terminate in case the premium charged shall not be paid in advance on or before the day at noon on which the same shall become due and payable," and the day of payment falls on Sunday, the premium is not payable until Monday, although the assured dies on Sun- day afternoon. Provision is sometimes made that a part of the premium shall be paid in money, and a part in notes, which are not called in unless needed to pay losses. The greater the accommoda- tion thus allowed, the more convenient it is, obviously to the insured, but the less certain will he be of the ultimate payment of the policy, because, in the same degree, the fund for the pay- ment consists only of such notes, and not of payments actually made and invested. There is a great diversity among the life- insurance companies in this respect. But even the strictest, or those which require that all the premiums shall be paid in money, usually provide also that an amount may remain overdue, with- out prejudice, which does not exceed a certain proportion — say one-half or one-third — of the money actually paid in on the policy. This is considered, under all ordinary circumstances, safe for the company, because every policy is worth as much as this to the company. Or, in other words, it would always be profitable for the company to obtain a discharge of its obligation on a policy, by repaying the insured so small a proportion of what has been received from him. 438 LIFE INSURANCE. Taking a note would certainly be a waiver of immediate pay, ment, if not itself a payment. The premiums, after the first, must be paid on the days on which they fall due. If no hour be mentioned, then it is believed that the insured would have the whole day, even to midnight. It is possible, however, that he might be restricted to the usual hours of business, and perhaps even to those in which the office of the insurers is open for business. Practically, the utmost care is requisite on the part of the assured, to pay his premium as soon as it is due ; and it is a wise precaution to pay it a little before. This is the only proper and safe course. But we believe it to be not unusual for the insurers to accept the premium if offered them a few days after, and continue the policy as if it were paid in season, provided no change in the risk has occurred in the mean time. And sometimes the rules of the company, and in some States the statutes, provide, that, if a policy be defeated by a non-pay- ment of the premium, the insured does not lose all that he has paid ; but a certain proportion of the value which the policy then had shall be paid to him. The time of the death is sometimes very important. If the policy be for a definite period, it must be shown that the death occurs within it. If there were an insurance on a man's life for a year, and some short time before the expiration of the term he received a mortal wound, of which he died one day after the year, the insurer would not be liable. And the terms of the policy may possibly make it necessary to determine which of two persons lived longest ; as if a sum were insured on the joint lives of two persons, to be paid to the representatives of the survivor. SECTION III. THE RESTRICTIONS AND EXCEPTIONS IN LIFE-POLICIES. Our policies usually contain certain restrictions or limita- tions as to place ; the life-insured (he whose life is insured for his own or another's benefit) not being permitted to go beyond cer- tain limits, or to certain places. But there is nothing to prevent a bargain permitting the life-insured to pass beyond these bounds, RESTRICTIONS AND EXCEPTIONS IN LIFE-POLICIES. 439 either in consideration of new and furtlier payments, or of the common premium. So certain trades or occupations, as of persons engaged in making gunpowder, or of engineers or firemen about ste&,m- engines, are considered extra-hazardous, and as tlierefore pro- hibited, or requiring an extra premium. The exception, however, which has created most discussion, is that which makes death by suicide an avoidance of the policy. The clause respecting duelling is plain enough ; and no one can die in a duel without his own fault. But it is otherwise with regard to self-inflicted death. This may be voluntary and wrong, ful, or the result of insanity and disease, for which the suffering party should not be held responsible. The general principles of the law of contracts, and of the law of insurance particularly, would lead to the conclusion that " death by his own hands," but without the concurrence of a responsible will or "mind, would not discharge the insurers, without a positive provision to that effect. We should put such a death on the same footing with one resulting from a mere accident, brought about by the agency, but without the intent, of the life-insured. As if poison were sent to him by mistake for medjcine, and he swallowed it under the same mis- take. Much question has been made, when a man may be believed to be dead, simply because nothing is known about him, or has been known for a long period. But there is not and cannot be any other presumption of law on the subject than that, after a certain period of absence and silence, there is a presumption of death ; and seven years has been mentioned in England and in this country as this period, and even sanctioned by legisla- tion in New York. But all questions of this kind we regard as pure questions of fact. Whichever party rests his case upon the death or the life of a certain person, at a certain time, must satisfy the jury upon this point by such evidence as may be admissible and sufficient. 440 LIFE INSURANCE. SECTION IV. THE INTEREST OF THE INSURED. Every one Insured in any way must have an interest in the subject-matter of the insurance. A person may effect insurance on his own hfe in the name of a creditor, for a sum beyond the amount of the debt, the balance to enure to his family, and the policy will be valid for the whole amount insured. Any one may insure his own life ; but if the insured and the life-insured are not the same, that is, if the insured be insured on some other life than his own, interest must be shown. A father has an insurable interest in the life of his minor son. And the general rule is, that any substantial pecuniary interest is sufficient, although not strictly legal nor definite. This has been held in the case of a sister dependent on a brother for support ; and the rule would be held to apply not only to all relations, but where there was no relationship, if there were a positive and real dependence. That is, any one may insure a sum on the life of any other person on whom he or she really depends for support or for comfort. And gener- ally, it is said to be enough, if, according to the ordinary course of events, pecuniary loss or disadvantage will naturally and probably result from the death of the one whose life is insured. So an existing debt gives the creditor an insurable interest in the life of a debtor. But if the debt be not founded on a legal consideration, it does not sustain the policy. And if the debt be paid before the death of the debtor, the insurers are dis- charged. SECTION V. THE ASSIGNMENT OF A LIFE-POLICY. Life-policies are assignable at law, and are very frequently assigned in practice. And the assignee of a policy is entitled on the death of the party insured, to recover the full sum insured without reference to the amount of the consideration paid by him for the assignment. A large proportion of the policies which are effected are made for the purpose of assign- ment ; that is, for the purpose of enabling the insured to give WARRANTY, REPRESENTATION, ETC. 441 this additional security to his creditor. If the rules of the com- pany or the terms of the policy refer to an assignment of it, they are binding on the parties. On the one hand, an assignment would operate as a discharge of the insurers, provided a rule or expressed provision gave this effect to the assignment. And, on the other, if the agreement were that the policy should con- tinue in favor of the assignee, even after an act. which discharged it as to the insured himself, — as, for example, his suicide, — the insurers would be bound by it. It is an important question what constitutes an assignment. The general answer must be, any act distinctly importing an assignment. And, therefore, a delivery and deposit of the pol- icy, for the purpose of assignment, will operate as such, without a formal written assignment. So will any transaction which gives to a creditor of the insured a right to payment out of the insurance. It seems, however, that delivery is necessary. And where an assignment was indorsed on the policy, and notice given to the insurer, but the policy remained in the possession of the insured, it was held that there was no assignment. Where, however, the assignment is by a separate deed, which is dvily executed and delivered, this is an assignment of the policy, without actual delivery of the policy itself. SECTION VI. WARRANTY, REPRESENTATION, AND CONCEALMENT. The general principles on this subject are the same which we have already stated in reference to other modes of insurance. In life -policies, however, the questions which must be answered are so minute, and cover so much ground, that difficulty seldom arises except in relation to the answers. One advisable precau- tion is for the answerer to discriminate carefully between what he knows and what he believes. If he says simply "yes" or " no," or gives an equivalent answer, this is in most cases a strict warranty, and avoids the policy if there be any material mistake in the reply. But where the answerer adds the words " to the best of my knowledge and belief," he warrants only the 442 LIFE INSURANCE. fact of his belief, or, in other words, nothing but his own entire honesty. The cases which turn upon the answers to the questions are very numerous ; but they necessarily rest upon the especial facts of each case, and hardly permit that general rules should be drawn from them. Some, however, may be stated. The first is, that perfect good faith should be observed. The want of it taints a policy at once, and the presence of it goes far to protect one. Thus, where the life-insured was beginning to be insane, but was wholly unconscious of it, the policy was not vitiated by the concealment, although two doctors in attendance upon him knew how the case stood. Most of the policies of the present day provide that the policy is made on the faith of the statem.ents in the applica- tion for insurance with the stipulation, and that, if they shall be found in any respect untrue, the policies shall be avoided. Then the stipulations are considered as warranties, and if untrue, even in a point immaterial to the risk, avoid the policies. There is a warranty, or statement, usually making a part of nearly all life-policies ; it is that the life insured is in good health. But this does not mean perfect health, or freedom from all symptoms or seeds of disease. It means reasonably good health, and loose as this definition, or rule, may be, it would be difficult to give it any other. And if a jury on the whole are satisfied that the constitution of one warranted to be "in good health " is radically impaired, and the life made rmusu- ally precarious, there is a breach of the warranty, although no specific disease is shown which must have that effect. On the other hand, this warranty is not broken by the presence of a dis- ease, if that be one which does not usually tend to shorten life (in one English case dyspepsia was said to be such a disease), unless it were organic, or had increased to that extreme degree as to be of itself dangerous. Consumption is the disease which is most feared in this country, as well as in England. And the questions which relate to the symptoms of it, as spitting of blood, cough, and the like, are exceedingly minute. But here also there must be a reasonable construction of the answers. Thus, if spitting of blood be posi- lVAIi:j?AA'Ty, REPRESElSiTATION, ETC. 443 lively denied, there may be no falsification in fact, though liter- ally speaking the life-insured may have spit blood many times, as when a tooth was drawn, or from some accident. If there be an action on the policy, and the insurers rest their defence on any falsification of this kind, the question usually put to the jury is. Was the party affected by any of these or similar symp- toms, in such wise that they indicated a disorder tending to shorten life ? And any symptom of this kind, however slight, — ■ as a drop or two of blood having ever flowed from inflamed or congested lungs, — should be stated. Statements materially untrue on these points avoid the policy, although the insured, at the time of his application, did not believe that he had any pulmonary disease, and the statement made by him was not intentionally false, but, according to his belief, true. The insurers always ask who is the physician of the life- insured that they may make inquiries of him if they see fit. And his name must be stated fully and accurately. It is not enough to give the name of the usual attendant ; but every physician really consulted should be named, and every one con- sulted as a physician, although he is an irregular practitioner or quack. If the warranty be that the life-insured is a person of sober and temperate habits, it has been held, in an action on such a policy, that the jury are not to inquire whether his habits of drinking are such as might injure his health ; for if he has any "habits of drinking," this would discharge the insurers, because they have a perfect right to say that they will insure only those who are temperate. But it may be answered, that although the insurers have this right, and there may be good reasons why this should be the general practice, yet unless they use the word " abstinence," or something equivalent, they have no right to say that any one is not "temperate" who does not drink enough to affect his health;. for as, generally, all intemperance must affect health injuriously, if there be no such injury, the presump- tion would be that there was no intemperance ; and there is clearly a broad distinction between temperance and total absti- nence. An answer, "not subject to fits," is not necessarily falsi- 444 LIFE INSURANCE. fied by the fact that the life-insured has had one or more fits. But if the question had been, " Have you ever had fits ? " then it is said that any fit of any kind, and however long before, must be stated. But if a man had a fit when a young child, and forgot to mention it, or considered it wholly unimportant, and it had nothing to do with his state of health, it would hardly be held a falsification which would avoid the policy. As there is always a general question as to any facts affect- ing health not particularly inquired of, a concealment of such a fact goes to a jury, who are to judge whether the fact was mate- rial, and whether the concealment were honest. As when a life- insured was a prisoner for debt, and so without the benefit of air and recreation, and this was not told ; and where a woman whose life was insured had become the mother of a child under disgraceful circumstances some years before, and this fact was concealed, the plaintiff was non-suited. If the policy, and the papers annexed or connected, put no limits on the location of the life-insured, he may go where he will. But if, when applying for insurance, he intends going to a place of peculiar danger, and this intention is wholly withheld, it would be a fraudulent concealment. If facts be erroneously but honestly misrepresented, and the insurers, when making the policy, knew the truth, the error does not affect the policy. Nor does the non-statement of a fact which diminishes the risk. If upon a proposal for a life insurance, and an agreement thereon, a policy be drawn up by the insurers and presented to the insured and accepted by them, which differs from the terms of the agreement, and varies the rights of the parties concerned, equity will interfere and deal with the case on the footing of this agreement, and not of the policy. But it may be shown by evidence and circumstances, that it was intended by the insurers to vary the agreement, and propose a different policy to the insured, and that this was understood by the insured, and the policy so accepted. INSURANCE AGAINST ACCIDENT, ETC. 445 SECTION VII. INSURANCE AGAINST ACCIDENT, DISEASE, AND DISHONESTY OF SERVANTS. Of late years both of these forms of insurance have come into practice, but not so long or so extensively as to require that we should speak of them at length. In general, it must be true, that the principles already stated as those of insur- ance against marine peril, or fire, or death, must apply to these other — and, indeed, to all other — forms of insurance, excepting so far as they may be qualified by the nature of the contract. From one interesting case which has occurred in England, it seems that, when an application is made for insurance, or guaranty against the fraud or misconduct of an agent, questions are proposed, as we should expect, which are calculated to call forth all the various facts illustrative of the character of the agent, and all which could assist in estimating the probability of his fidelity and discretion. But a declaration of the appli- cant as to the course or conduct he was to pursue was distin- guished from a warranty. He may recover on the policy, although he changes his course, provided the declaration was honest when made, and the change of conduct was also in good faith. In this case the application was for insurance of the fidelity of the secretary of an institution. There was a ques- tion as to when, and how often, the accounts of the secretary would be balanced and closed ; and the applicant answered that these accounts would be examined by the financial committee once a fortnight. A loss ensued from the dishonesty of the secretary, and it appeared to have been made possible by the neglect of the committee or the directors to examine his accounts in the manner stated in the policy. But the insurers were held on the ground that there was no warranty. 446 DEEDS CONVEYING LAND. CHAPTER XXIX. DEEDS CONVEYING LAND. SECTION I. WHAT IS ESSENTIAL TO SUCH DEEDS. By the old law, no instrument was considered made until it was sealed ; then it was thought to be done, and the word deed, which literally means only something done, was given to every written instrument to which a seal was affixed ; and that is the legal meaning now. But the common meaning of the word is an instrument for the sale of lands ; and it is of this that we would now treat. By the statutes and usage of this country generally, no lands can be transferred excepting by a deed, which is signed, sealed, acknowledged, delivered, and recorded. In some States seals are abolished. We give annexed to this chapter an Abstract of the Laws of all the States relating to deeds and their requirements. What the deed should be, that is, in what words it should be expressed, we can best show by the forms appended to this chapter, and do not propose to say more about it than this. It is not safe to depart from forms, and established phrases, which have passed before the courts so often that their exact meaning is certainly known. There are things which seem to be and perhaps are vain repetitions ; and for the usual words it may be thought that others of the same or better meaning may be sub- stituted. Such changes may be made perhaps, without detri- ment ; but perhaps, also, with ruinous results ; and it is not wise to run the risk. It should be signed ; and this means, properly, that the seller or grantor should write his name in the usual way, in the proper place, and with ink. If the grantor cannot write his name, he . may merely make his mark. It has been said that writing with a lead pencil is enough, but it would not be safe to trust to it. The name of the grantee should be distinctly WHA T IS ESSENTIAL TO SUCH DEEDS. AA7 written in the proper place, in ink. Sometimes, in our large cities, an agent buys land for a principal who does not wish to be known, and the agent's name is inserted as grantee, in paicil, and the deed is so executed and acknowledged and delivered ; and some time afterwards the agent rubs his name out, and writes the name of his principal, the actual buyer, instead. But this is a very unsafe and reprehensible practice, and the deed cannot be considered satisfactory. The deed of a corporation must be signed by an agent or attorney, who should be careful to execute it in the manner indicated in some of the forms appended. In one case, in Massachusetts, where a deed was written throughout as the deed of a corporation, and their treasurer signed it thus : " In witness whereof, I, the said C C, in behalf of the said company, and as their treasurer, have hereunto set my hand and seal" — it was held that this was the deed of the treasurer, and not the deed of the corporation, and did not transfer the lands. This is an extreme case, and the law might not always be applied with so much severity ; but it is best not to incur any such risk. So, to, the rule that a person who is to be authorized to afhx the seal of another should be authorized under the seal of the principal, is so general, that, although it has important excep- tions, it should always be observed. The seal is properly a piece of paper wafered on, or sealing wax pressed on. In the New England States generally, and in New York, nothing else satisfies the legal requirement of a seal. In the Southern and Western States generally, a scrawl, intended for a seal, usually made by writing the word "seal" within a square or diamond, is regarded in law as a seal. If there be but one seal on an instrument, and many parties, all of whom should seal it, this seal will be taken generally for the seal of each one ; although, properly, each signer should put a seal against his own name. The deed should be delivered. If a man makes a. deed, and acknowledges it, and keeps it in his possession, and dies, the deed has no effect whatever ; no more than if the grantor had put it in the fire. Even where it was recorded, and then taken back by the grantor and kept by him, with words going to show 448 DEEDS CONVEYING LAND. that the grantor did not wish the grantee to know of it, it was held not to have been delivered. But there are no especial words or form necessary for delivery. If the deed, in any way whatever, gets into the possession of the grantee, with the knowledge and consent of the grantor, it is a delivery. The grantor may deliver it by his agent, and it may be delivered to the agent of the grantee, authorized by him to receive it. Moreover, the law permits a kind of conditional delivery. Thus, the grantor may deliver the deed to a third person, to be delivered by him to the grantee on a certain con- dition, or when a certain thing is done ; and when that condition is performed, or the thing is done, the deed belongs to the grantee, and takes effect in the same way as if it had been delivered to him personally. In legal language, the deed is said to be delivered to the third person, as an escrow. So the grantor may put the deed in the hands of the third person, with directions to give it to the grantee after the death of the grantor, provided the grantor does not reclaim it in the mean time. Then the grantor can reclaim it whenever he will, which he cannot do after he has delivered it to the grantee ; but if he does not reclaim it during his life, at his death it becomes the property of the grantee, and the law now considers that it was delivered to him when first delivered to that third party. So that deed is good even against creditors, provided that the grantor was perfectly solvent when he put the deed in the hands of the third party, and acted altogether in good faith. If a deed to a married woman be delivered either to her or to her husband, it is sufficient. As there must be delivery to the grantee, or to some one for him, so there must be assent and acceptance on his part. The law will help any evidence tending to show such assent, by presuming in favor of the grantee's assent if the deed be wholly and only favorable to him. But not if there is money to be paid by him, or anything important to be done if he accept the deed. It is usual and proper that the execution of the deed should be attested by witnesses. In many of our States, two witnesses are required by statute. In New York, one is enough. In the WHAT IS ESSENTIAL TO SUCH DEEDS. 449 greater number, witnesses are not absolutely required by statutes, nor by strict law of any kind ; but even there it is usual and safer to have them. The witness should see the party sign ; but if the deed is signed near him, and is immediately brought to him by the grantor, who tells him that is his signature, and asks him to witness, this would be sufficient in law. It is desirable that witnesses, when called on to testify, should remember the signature, sealing, etc. ; but it is sufficient in law that they are certain of their handwriting, and can declare under oath that they should not have attested the execu- tion and delivery if they had not seen it. If witnesses are dead, proof of their handwriting is sufficient ; and if this cannot be offered, then proof of the handwriting of the grantor is enough. If witnesses attest the signing, sealing, and delivery, in the common form, proof of their handwriting, in case of their death or absence, is proof of the execution and delivery of the deed. The witness should, properly, be of sufficient age and under- standing, but may be a minor. He should have no interest in the deed. Hence a wife is not a proper witness of a deed to her husband. But the courts, and especially a court of equity, would seldom permit a deed to be avoided through the incompe- tence of a witness, if there were no suspicion of wrong. Generally a deed is valid as between the parties, although not acknowledged ; but, to entitle it to be recorded, it must be acknowledged. For this purpose the grantor must go before a person qualified by law to receive acknowledgments, and exhibit the deed to him, and acknowledge it as his free act and deed ; and the person receiving the acknowledgment then certifies that he has received this acknowledgment, under the proper date. In general an acknowledgment may be made before any justice of the peace, or a commissioner appointed for the State in which the land to be conveyed is situated, if the deed is executed in another State, or any consul or consular agent of the United States if the deed is executed in a foreign country. This acknowledgment must be made, or the deed cannot be recorded. And the deed is invalid, as notice, if the acknowl- edgment is defective, although it is actually recorded. 29 4SO DEEDS CONVEYING LAND. Formerly, all the grantors acknowledged the deed ; and this continues to be usual in most places, and is the safest practice. But, in some places, it is now sufficient in law, if either of the grantors acknowledge it. In many States, if a wife, separately or joining with her husband, conveys away her land, a particular form and mode of acknowledgment is required, in order to ascertain that she does it of her own free will ; and any such directions or requirements should be followed with great care. The Forms added to this chapter will show how this is done. An attorney, A B, who executes a deed for another, C D, should acknowledge it as " the free act and deed of the said C D," and not as his own. The justice taking the acknowledgment must be careful to state it in his certificate, exactly as it was made before him. In some of our States, recent laws have in effect required the assent of the v^-ife to a transfer of the husband's real estate; not merely to convey her dower, but to pass the property to the grantee. We do not enumerate or specify these States here ; having given previously an abstract of the law of husband and wife in all the States. In all our States, we have the excellent system of registering (or recording, as it is more frequently called) all deeds of land in the public registers of the county in which the land lies. This was adopted for the purpose of giving certainty and noto- riety to title, and it works admirably well. The investigation of title is usually easy to those accustomed to this mode ; and every purchaser of land should ascertain that the deed will give him good title before he takes it. The law generally requires that a deed of lands should be acknowledged and recorded, to have full effect ; but judicial decisions have everywhere qualified the force of these words, and in some instances the language of the statutes varies. But the rules of law in reference to the recording are quite uniform in all the States, and are as follows : In the first place, every acknowledged deed is considered as recorded as soon as it is in the hands of the recording officer ; and therefore he generally minutes upon it the day, hour, and THE USUAL CLAUSES IN DEEDS. 451 minute when it was received by him. This may be very import- ant , for if A makes his deed and delivers it to B, v/ho presents it for record at five minutes past noon, and C, a creditor of A, attaches the same estate at four minutes past noon of the same day, the grantee loses the land and the creditor gets it ; but the grantee saves it, if he presents it to the office three minutes and fifty seconds after noon. In the next place, as the purpose of public registration is general notoriety, a deed is perfectly good without record against the grantor himself and his heirs, because the grantor himself could not but know of the deed, and, as all title passed out of him by it, his heirs could take none from him. And finally, a deed not recorded is just as good as if it had been recorded, against any parties, or the heirs of any parties, who took the land from the grantor by a subsequent deed, even for a full price, if they had at the time notice or knowledge of the prior and unrecorded deed. Many wise persons have doubted the expediency of this last rule, because it tends to raise troublesome questions, and to make grantees careless about recording their deeds. But the rule itself is universally and firmly established, and in some statutes requiring record this exception is expressed. A deed should be dated ; but, if it have no date, it will take effect from delivery. Any erasures or alterations should be noticed and stated above the names of the witnesses, as having been made before the execution of the instrument. Any mate- rial alteration by a grantee, or by his procurement, makes the deed void in most cases, so far as he is concerned. It is usual, and therefore proper, to name executors, admin- istrators, etc., as in the forms appended ; but, generally, the rights and obligations of the deceased fall by law on their legal representatives. SECTION II. THE USUAL CLAUSES IN DEEDS. It is customary to recite in all deeds the consideration on which they are made. This is usually the price paid for them. Sometimes it is this price in part, and other things in part. 452 DEEDS CONVEYING LAND. Sometimes there is no price paid, the land being either a gift, or conveyed for other considerations. In the great majority of deeds, the language used is, "in consideration of (so much money) paid me by the said (grantee), the receipt v.hereof I acknowledge." Or it is, "in consideration of one dollar paid me, the receipt of which I acknowledge, and divers other con- siderations ; " or, " in consideration of one dollar to me paid, the receipt of which I acknowledge, and of the love and good, will I bear to the said (grantee)." It is always customary, although not necessary, to put in "one dollar," or some other nominal sum, although no price is paid. Although the price is inserted, and the receipt thereof be acknowledged, the seller is not bound by his receipt. It is a general rule, as has been stated, that all written receipts of money are open to evidence, as written contracts generally are not. Under this rule, the seller may sue for the whole or any part of the money of which he has acknowledged the receipt, if he can prove that the money he demands has not been paid to him. He cannot, however, say that the money has not been paid, and therefore the deed is void, and the land has not passed to the grantee. For only that part of the deed which is a receipt is open to denial or evidence. Of the words of conveyance, which are usually "give, grant, sell, and convey," it needs only be said, that it is best to use them, beeause it is usual, but that other words, or these with some change, would be sufficient in law. The description of the land should be minute and accurate, to an extreme degree. In this country, it is customary and well to refer to the previous deeds by which the grantor obtained his title. This is done by describing them by their parties, date, and book and page of registry. It may be well to remark, that a deed referred to in a deed becomes, for most purposes in law, a part of the deed referring. By the law of England and of America, if land is conveyed by deed to "A B," the grantee takes it for his life only. Nor will he take it in full property (or, to use the technical law-term, in fee simple), that is, with full power of disposing of it during his life or at his death, with a right on the part of his heirs to it if THE USUAL CLA USES IN DEEDS. 453 he does not dispose of it, unless it is given to "A B and his heirs." These last words, which are commonly called words of inheritance, must always be added ; for although there are some qualifications to this rule, which might help those who take such a deed inadvertently, there are none to which it would be safe to trust. The deed is terminated by this clause of execution : " In witness whereof, I, the said A B, on the day of ■ — — in the year , have hereunto set my hand and seal," or " subscribed (or written) my name and ailixed my seal." And there. should be no departure from this, although an exact adherence to this formula may not be necessary to the validity of the deed. This clause is often called the " In Testimonium clause." If the deed contains nothing but what has now been said, it will convey the land, or all the right, title, and interest in and to the land, possessed by the grantor. But it is only what is called a qidtclaim deed. That is, it is not a warranty deed. These phrases, which are in common use, explain themselves. Originally, a quitclaim deed was intended, and indeed operated, only where the grantee already held possession of the land, or some title to it, and the grantor intended to renounce all his right or title in favor of the grantee. But it was soon used where a man intended to sell and convey land, but not to give any warranty. And now, because there is some question, in some of our States, as to the effect of the words "give, grant, sell, and convey," although there be no express warranty in the deed, it is best, and it is usual, when only a quitclaim is intended, without any warranty whatever, to substitute for the words of conveyance above mentioned the words "grant and quitclaim," or, more accurately, "release and quitclaim." Then, if the grantee afterwards loses the land because the grantor had no title to it, the grantor is nevertheless under no responsibility, provided the transaction was an honest one on his part. All purchasers, therefore, desire to have a warranty deed if they can get one. And a deed becomes a warranty deed, when clauses like those which follow are inserted just before the clause of execution : " And I, the said A B (the grantor), for myself, my heirs. 454 DEEDS CONVEYING LAND. executors, and administrators, do covenant with the said C D (the grantee), his heirs and assigns, that I am lawfully seized in fee of the aforegranted premises ; that they are free from all incumbrances ; that I have good right to sell and convey the same to the said C D as aforesaid ; and that I will, and my heirs, executors, and administrators shall, warrant and defend the same to the said C D, his heirs and assigns forever, against the lawful claims and demands of all persons. It will be noticed that this paragraph contains four different agreements or warranties, — covenants the law calls them. The cases are multitudinous, and the law excessively nice, as to their exact meaning and operation. None of this technical learning is it worth while to spread before the general reader. But the general purpose and effect of all of them together should be stated. It is, that if "the said C D," that is, the grantee, or his heirs or assigns, are turned out of that estate (ousted or evicted, the lav/ says), on the ground that the grantor had no title, or an incumbered title, and could not convey any good and clear title, he or they may fall back on the grantor or his heirs, and demand damages for the loss of the land. It is a question how much damage a grantee thus ousted shall reco\er. In most of our States, it seems to be the money paid for it, with interest (deducting rents and profits), and the legal cos^s and charges (not including counsel fees) for defend- ing against the suit which has ousted him from the land, and no more. I'ut in other States, as generally in New England, the party ousted recovers the actual value of the land, with his improvements, which he loses by the defect of the grantor's title ; although this may be much more than he paid for it. It is not, however, settled uniformly what the measure of damages is. In forms of deeds there is usually a blank of a few lines left after the words "incumbrances;" and this is intended for the insertion of any mortgage, or other incumbrance, which may exist; thus, "excepting a mortgage to, etc., dated, etc., to secure the sum of, etc." Or, "excepting a right in the owners of the adjoining land to have and maintain a drain running, etc." Sometimes quitclaim deeds are made with this warranty : " And I will, and my heirs, etc., shall, warrant and defend, etc., THE USUAL CLA USES IN DEEDS. 455 to the said C. D, etc., against all claims and demands of myself, or of any persons deriving title by or through me." Such a warranty will hold the grantor and his heirs liable for any incumbrance made or suffered by him, but not for any other. As the usual covenants of a warranty deed are made with the grantee, "his heirs and assigns," if such grantee conveys the land only by grant and quitclaim, without warranty, his grantee takes the benefit of all the previous warranties to which this last grantor was entitled. Thus, A sells with warranty to B ; B quitclaims to C ; C is ousted by D, who proves that he has a better title than A. C cannot sue B because he got no warranty from B ; but he can sue A on A's warranty to B, which was transferred to C. Sometimes estates are conveyed on condition ; but this is a very catching thing, and nobody should ever take such a deed if he can help it. It i.s hardly safe to have the word condition in any deed but a mortgage. The reason is, that if an estate is conveyed on condition, and the condition is broken, the estate is lost. Thus if land is sold on a certain street with this clause: "And the land aforesaid is sold on condition that neither the grantee, nor any one deriving title from or through him, shall build within ten feet of the street." If any owner build six inches over the line, by mistake, or extend his building by an addition of a foot or so in any part, the whole land, house and all, might be lost and forfeited to the grantor. And the grantor can always secure the proper effect of such a condition by a clause like this : "Provided, however, and it is agreed, that if the said C D, etc., shall build, etc., the said A B, or his heirs or assigns, may enter upon the .land hereby conveyed, and abate and remove any and all buildings or parts of buildings, which stand nearer said street than the limit of ten feet afore- said;" — or some similar clause, as might be framed to suit the case. This would be just as good for the grantor and a great deal safer for the grantee. By a rule of law which originated in this country, and is now universal here, if a married woman holds lands, the hus- band and the wife, joining in one deed, may convey them. In some of our States such a deed is regulated by statutes, which 456 DEEDS CONVEYING LAND. of course are to be followed. And in many of them the wife now has peculiar powers by statute, as stated in Chapter V. on Married Women. It may be necessary that she should renounce or release certain rights, as of homestead, etc., under these statutes, if it is intended that the grantee should take a clear title; and in such case proper words should be inserted. This is now the custom, for example, in Massachusetts. She should always release her right of dower, unless it is intended that she should presei've it. In some States her signing the deed with her husband does not release anything, even if it could be proved that such was her intention, unless the deed contain words expressing her intention to release or convey such or such a right or interest. In most printed forms there is a blank left to be filled up for this purpose. As this differs in different States I shall refer to it again. It may be well to remark that bargains are often made for the purchase and sale of real property. If the contract be oral only, it has no force in any court. If it be in writing, either party may, in a court of law, recover damages from the other if he refuses to perform his contract. Or, in a court of equity, he may compel the other to execute his contract. Not, however, if there was fraud in the contract, or oppression, or gross misrepresentation, or intentional and important concealment. But a mere inadequacy of price — all things being honest — will not prevent a court of equity from enforcing such an agreement. Deeds conveying land are of vast variet)'. They not only differ that they may suit the particular purposes of the parties and the terms of their bargain, but those used in each section of the country differ somewhat in form from those used in another ; and different conve3'ancers in the same State prefer one form to another. But these differences are generally, if not always, differences only of form, and are seldom essential to the meaning and effect of the deeds. I give here forms of all the kinds most in use; and in such variet)^, and so selected and prepared, that it is believed that any person in any part of this country will be able to find a form, which, either as it stands, or with such alterations as can be readily seen to be required by the use he would make of it, will be safe, and suffi- cient for his purpose. THE USUAL CLAUSES IN DEEDS. 457 As acknowledgments differ much in form, enough of them are given to show the kinds that are used. The fuller and more particular are the safer, although the shorter and more general might be sufficient. In New England, a deed of land is usually what is called in law a Deed Poll ; by which is meant a deed of one party, and from him to another. In the other States generally, a deed of lands is more commonly in the form of an Indenture, which, as has been said before, is an instrument betivecn tzuo or more parties. The difference between them will be seen in the forms given. The first one is a Deed Poll. But most of them ^re Indentures, as they are most frequently used ; although a Deed Poll that was satisfactory in other respects would generally suffice to give good title to land anywhere. A form of a Deed Poll may be converted into an Indenture by changing the beginning of it in the manner shown in the forms, and, whenever the word "grantor" comes, changing that into "the party of the first part." And a deed by Indenture is made a Deed Poll by changes of an opposite kind. How to make these changes will be seen by comparing the deeds of the two kinds as herein given. Another difference between the Deeds Poll in common use in the New England States, and the deeds by Indenture in use elsewhere, must be noticed. If the grantor by a Deed Poll has a wife, and it is intended that she shall relinquish her dower, she is not mentioned as grantor, but in the "In Testimonium," so called, which is that part of the deed which begins with " In witness (or in testimony) whereof," her name is mentioned, and it must be distinctly said that she signs the deed in token of her relinquishment or release of dower. This is shown in Form io6. But where deeds by Indenture are used, there she is joined with her hus- band, and named as grantor; he and she being "parties of the first part." It is, however, 7tot necessary that anything should be said in the deed about her release of dower, or homestead ; but she signs and seals the deed, and, in the acknowledgment, express mention is made of her release of dower and home- stead, and also that she was separately examined. Some 458 DEEDS CONVEYING LAND. of the forms are drawn in this way. Other forms are written as if the grantor was unmarried, or as if his wife, if he had one, did not intend to give up her dower. But all these forms can be readily altered, and made to resemble either of the forms according as there is or is not a wife, or as, if there be a wife, it is intended that she should join in the conveyance and relinquish her dower, or that the husband should convey subject to the wife's dower. If this last be the intention, it is not necessary to say so, as the mere fact that she is not a party to the deed preserves for her the right of dower. (106.) A Deed Poll ofWarranty, in Common Use in New England. Know all Men by these Presents, That I, {the grantor) of (residence, town or city, county and State), {occupation), in consideration of . {the amount paid) to me paid by {here 7ianie the grantee or purchaser, giving in like manner his residence and occupation), the receipt whereof is hereby acknowledged, do hereby give, grant, bargain, sell, and convey unto the said {name the grantee, and tlieti describe the prem- ises granted, minutely and accurately) : — To Have and to Hold the above-granted premises, to the said {name the grantee), his {or hers or their) heirs and assigns, to his {or hers or their) use and behoof forever. And I, the said {name of the grantor), for {myself) and {my) heirs, executors, and administrators, do covenant with the said {name of the grantee), and with his heirs and assigns, that I am lawfully seized in fee simple of the aforegranted premises ; that they are free from all incumbrances {if there be any incumbrances, as a mortgage or lien, or right of way, or drain, or air, or light, say excepting, and then describe the incumbrance), that I have good right to sell and convey the same to the said {name of the grantee), and his {or her) heirs and assigns forever as afore- said ; and that I will, and my heirs, executors, and administrators shall, war- rant and defend the same to the said {name of the grantee), and his heirs and assigns forever, against the lawful claims and demands of all persons. In Witness Whereof, I, the said {naine of the grantor), -ind {name of his wife), wife of said grantor, iji token of her release of all right and title of or to dower in the granted premises, have hereunto set our hands and seals this day of in the year of our Lord eighteen hun- dred and {Signature?) {Seal.) Signed, Sealed, and Delivered in Presence of In those States in which a homestead law exists, the signa- ture of the wife, with a clause like that above, would not release FORMS OF DEEDS. 450 che homestead. To effect this the following clause should be inserted before the words, " In token of : " — " In token of her release to the said {name of the grantee), of all her right, interest, and estate to or in the premises herein conveyed, under the homestead laws of this State ; and also," etc. Some conveyancers think this hardly sufficient, and prefer the following method, which would undoubtedly be effectual in every one of these States. Insert before the paragraph begin- ning " In witness whereof," this paragraph : — " And I, {name of the ■wife) wife of the said {the name of the grantor), in consideration of one dollar to me paid by the said {the name of the grantee), the receipt whereof is acknowledged, do hereby release and assign to the said {the name of the graiitee), and his heirs and assigns, all my right, interest, claim, and estate in or to the premises within granted, under the homestead laws of this State, or any other statutory provisions thereof." It is to be remembered that, whether the deed be a warranty deed like that above given, or a release or quitclaim, or a mort- gage deed, it is equally necessary and proper that the wife should release her homestead right and her dower, unless it is intended that she should retain them. Below the deed comes the acknowledgment, of which the briefest form is as follows, which is sufficient in a few States : Commonwealth {or State) of {County) SS. {Town, Afonth, and Date) Then personally appeared the above-named and acknowl- edged the above instrument to be free act and deed ; before me, fust ice of the Peace. If the wife is a party to the deed, she should make her sep- arate acknowledgment. A full Form of acknowledgment, by both parties, sufficient anywhere, may be found in Form 112, page 464. (107.) Deed of G-ift by Indenture, without any "Warranty whatever. This Indenture, Made the day of in the year one thousand eight hundred and between 460 DEEDS CONVEYING LAND. {name, residence, and occupation of the grantor) of the first part, and ()ia?iie, residence, and occupation of the grantee) of the second part, witness- eth, that the said {the grantor) as well for and in consideration of the love and affection which he has and bears towards the said {the grantee) as for the sum of one dollar, lawful money of the United States, to him in hand paid by the said party of the second p^.rt, at or before t'le ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has given, granted, aliened, enfeoffed, released, conveyed, and confirmed, and by these presents does give, grant, aliene, eiifeoff, release, convey, and con- firm, unto the said party of the second part and his heirs and assigns forever, all {iLcre describe carefully tJie land or premises granted, by metes and bounds, and dimensions, contents or quanlit:', or boundary marks or monu- ments, and refer by volume and page to the deed of the land to the grantor, ■under which he holds it). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rentj, issues, and profits thereof. And also, all the estate, right, title, interest, property, pos- session, claim, and demand whatsoever, of the sail party of the first part, of, in, and to the same, and every part and parcel thereof, with their and every of their appurtenances. To have and to hold the said hereby granted and described premises and every part and parcel thereof with the appurtenances unto the said party of the second part, and his heirs and assigns, to his and their only proper use, benefit, and behoof forever. In. Witness "Whereof, The said party of the first part has hereunto set his hand and seal the day and year first above written. {Signature^ {Seal) Sealed and Delivered in the Presence of (108.) Deed of Bargain and Sale -without any "Warranty. This Indenture, Made the day of in the year one thousand eight hundred and between {nanie, residence, and occupation of the grantor) of the first part, and {name, residence, and occupation of the grantee) of the second part, witness- eth, that the said party of the first part, for and in consideration of the sum of lawful money of the United States of America, to him in hand paid, by the said party of the second part, at or before tlie ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, remised, released, conveyed, and con- firmed, and by these presents does grant, bargain, sell, aliene, remise, release, convey, and confirm, unto the said party of the second part, and to his and assigns forever, all {here describe carefully the land or prejnises granted, as directed in Form 107). FOJ^MS OF DEEDS. 461 Together with all and singular the tenements, hereditaments, and appur- tenances thereto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also all the estate, riglit, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, or to the above-described premises, and every part and parcel thereof, with the appurtenances. To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said parly of the second part, and his heirs and assigns forever. In "Witness V/hereof, The said party of the first part has hereunto set l-.is hand and seal the day and year first above written. {Signature^ {Seal.) Sealed and Delivered in the P}-eseiue of State of ) > ss. County of ) On this day of in the year one thou- sand eight hundred and before me personally came {fhe name of the party of the first part who is the grantor) wlio is known by me to be the individual described in, and who executed the foregoing in- strument, and then and there acknowledged that he executed the same as and for his own deed. (Signature) (109.) Qiiitclaim Deed without any "Warranty. This Indenture, Made the day of in the year one thousand eight hundred and between (name, residence, andoccupation of the grantor) of the first part, and {najne, residence, and occupation of the grantee) of tlie second part, witness- eth, that the said party of the first part, for and in consideration of the sum of lawful money of the United States of America, to him in hand paid, by the said j^arty of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has remised, released, and quitclaimed, and by these presents does remise, release, and quitclaim, unto the said party of the second part, and to his heirs and assigns forever, all {here describe carefully the land or premises granted, as directed in Eor?n 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also a'l the es'ate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, or to the above-described premises, and every part and parcel thereof, with the appurtenances. To have and to hold all and singular the 462 DEEDS CONVEYING LAND. above mentioned and described premises, togelher with the appurtenances, unto the said party o£ the second part, and his heirs and assigns forever. In Witness Whereof, The said party of the first part has hereunto set his hand and seal the day and year first above written. (Signature^ {Seal.) Sealed and Delivered in the Presence of State of County of On this day of in the year one thou- sand eight hundred and before me personally came (the name of the grantor) who is known by me to be the individual described in, and who executed the foregoing- instrument, and acknowledged that he executed the same. (Signature^ (110.) Deed Poll of Release and Conveyance, Short Form. Enov/ all Eden by these Presents, That I, (the name of releasor) of the County of and State of for and in consideration of one dollar to me in hand paid, and for other good and valuable considerations, the receipt whereof is hereby confessed, do hereby grant, bargain, remise, convey, release, and quitclaim unto (tlie name of the releasee) of the County of and State of all the right, title, interest, claim, or demand whatsoever, I may have acquired in, through, or by a certain indenture or deed, bearing date the day of A. D. iS , and recorded in the office of County, and State of in book of page to the premises therein described, to wit {Jure describe carefully the land or premises granted, as directed in Form 107). Witness my hand and seal, this day of A. D. 18 {Signature.) {Seal.) State op ^ y ss. County. ) I, in and for said county, in the State aforesaid, do hereby certify, that {the najiie of the releasor) personally known to me as the same person whose name is subscribed to the foregoing deed, appeared before me this day, in person, and acknowledged that he signed, sealed, and delivered the said instrument in writing, as his own free and voluntary act, for the uses and purposes therein set forth. Given under my hand and seal, this day of A. D. iS {Signature.) {Seal.) FORMS OF DEEDS. ^^- (111.) Deed, with Special "Warranty against the Grantor cnlj'. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and between {the name of the grantor) and {name of the wife of grantor') wife of the said {name of the grantor) of the County of and State of parties of the first part, and {name and residence of the grantee) party of the second part : Witnesseth, that the said parties of the first part, for and in consideration of the sum of to them paid by the said party of the second part, the receipt of which is hereby acknowl- edged, do by these presents grant, bargain, and sell unto the said party of the second part, and his heirs and assigns, the following-described tract or parcel of land, situate in {here describe carefully the land or premises granted, as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof ; and also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said parties of the first part, of, in, or to the above-described premises, and every part and parcel thereof, with the appurtenances. To have and to hold all and singular the above-mentioned and described premises, together with the appurtenances, unto the said party of tlie second part and his heirs and assigns forever. And the said the said parties of the first part, hereby expressly waive, release, and relinquish unto the said party of the second part, and his heirs, executors, administrators, and assigns, all right, title, claim, interest, and benefit whatever, in and to the above-described premises, and each and every part thereof, whicli is given by or results from all laws of this State pertaining to the exemption of homesteads. And the said parties of the first part, for themselves and their heirs, executors, and administrators, do hereby covenant, promise, and agree to and with the said party of the second part, his heirs and assigns, that the said premises against the claim of all persons, claiming or to claim by, tlirough or under them only, they will forever warrant and defend. In Testimony Whereof, The said parties of the first part have hereunto set their hands and seals the day first above written. {Signature of grantor^ {Seal.) {Signature of wife of grantor) {Seal.) Sealed and Delivered in Presence of State of ^ |-ss. County. ) I in and for said county, in the State aforesaid, do hereby certify that {name of the grantor) personally known to me as 464 DEEDS CONVEYING LAND. the sdme person whose name is subscribed to the annexed deed, appeared before me this day in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. And the said {name of the grantor's mfi) wife of Ibe said {name of the grantor) having been by me examined, separate and apart and out of the hearing of her husband, and the contents and meaning of the said instrument of writing having been by me fully made known and explained to her, and she also by me being fully informed of her right under the Hom.estead Laws of this State, acknowledged that she had freely and vol- untarily executed the same, and relinquished her dower to the lands and tenements therein mentioned, and also all her rights and advantages under and by virtue of all laws of this State relating to the exemption of home- steads, wi'.hout compulsion of her said husband, and that she does not wish to retract the same, Given under my hand and seal, this day of A. D. 18 {Signature^ {Seal.) (112.) Quitclaim Deed.— Long Form Homestead "Waiver. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between {name, residence, and occupation of the grantor, and name of the grantor''s -wife) parties of the first part, and {name, residence, and occupation of the grantee) party of the second part, V/itnessetli, That the said party of the first part, for and in considera- tion of dollars, in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, and the said party of the second part, forever released and discharged therefrom, have remised, released, sold, conveyed, and quitclaimed, and by these presents do remise, release, sell, convey, and quitclaim unto the said party of the second part, his heirs and assigns forever, all the right, title, interest, claim, and demand which the said party of the first part have in and to the following described lot , piece , or parcel , oilznA, to vt'ii {here describe carefnliy the iand or premises granted, as directed in Form 107). To Have and to Hold tlie Same, Together with all and singular the appurtenances and privileges thereunto belonging, or in any wise thereunto appertaining ; and all the estate, right, title, interest, and claim whatever of the said party of the first part, either in law or equit}', to the only proper use, benefit, and behoof of the said party of the second part, his heirs and assigns forever. And the said parties of the first part hereby expressly waive, release, and relinquish unto the said party of the second part, his heirs, executors, adminis- trators, and assigns, all right, title, claim, interest, and benefit whatever in FORMS OF DEEDS. 465 and to the above-described premises, and each and every part thereof which is given by or results from all ln.ws of this State pertaining to the exemption of homesteads. And the said parties of the first part, for themselves and their heirs, executors, and administrators, do covenant, promise, and agree, to and with the said party of the second part, his heirs, executors, administrators, and assigns, that they have not made, done, committed, executed, or suffered any act or acts, thing or things whatsoever, whereby, of by means whereof, the above-mentioned and described premises, or any part or parcel thereof, now are, or at any time hereafter shall or may be, impeached, charged, or incum- bered, in any way or manner whatsoever. In Witness Whereof, The said party of the first part hereunto set their hands and seals tlie day and year above written. {Signature of grantor^ {Seal^ (Signattire of wife of grantor^ {Seal.) Signed, Sealed, and Delivered in Presence of State of , ^ y ss. County. ) I, in and for said county, and the State aforesaid, do hereby certify, that {name of the grantor') being personally known to me as the same person whose name is subscribed to the foregoing instrument of writing, appeared before me this day, in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. And the said {name of the "wife) wife of the said {tiame of the grantor) having been by me examined separate and apart, and out of the hearing of her husband, and the contents and meaning of the said instrument of writ- ing having been by me fully made known and explained to her, and she also by me being fully informed of her rights under the Homestead Laws of this State, acknowledged that she had freely and voluntarily executed the same, and relinquished her dower to the lands and tenements therein mentioned, and also all her rights and advantages under and by virtue of all laws of this State relating to the exemption of homesteads, without the compulsion of her said husband, and that she does not wish to retract the same. Given under my hand and official seal, this day of A. D. 18 {Signature) {Seal.) (113.) Deed, with Covenant against G-rantor, without Release of Homestead or Dower. This Indenture, Made the day of in the year one thousand eight hundred and between {name of the grantor) 30 ^66 DEEDS CONVEYING LAND. of the first part, and {name of the grantee) of the second part, witnessetli. That the said party of the first part, for and in consiJeration of the sum ol lawful money of the United States of America, to hira in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknov/ledged, ha granted, bargained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents do grant, bargain, sell, aliene, remise, re- lease, convey, and confijjm unto the said party of the second part, and to his heirs and assigns forever, all {here describe carefully the land or premises granted, as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, or to the above-described premises, and every part and parcel thereof, with the appurtenances. To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said party cf the second part, and his heirs and assigns forever. And the sai J {name of the grantor ) for (himself) and (his) heirs, execu- tors, and administrators, does hereby covenant, promise, and agree to and with the said party of the second part, and his heirs and assigns, that (he) ha not made, done, committed, executed, or suffered any act or acts, thing or things whatsoever, whereby or by means whereof, the above mentioned and described premises, or any part or parcel thereof, now are, or at any time hereafter shall or maybe, impeached, charged, or incumbered in any manner or way whatsoever. In "Witness V/hereof, The said party of the first part ha hereunto set (his) hand and seal the day and year first above written. {Signature .) {Seal .) Sealed and Delivered in the Presence of State of , County. I, in and for said county, and the State aforesaid, do hereby certify, that {name of the grantor) being personally known to me as the same person whose name (is) subscribed to the foregoing instrument of writing, appeared before me this day, in person, and acknowledged that (he) signed, sealed, and delivered the said instrument of writing as (liis) free and voluntary act, for the uses and purposes therein set forth. Given under my hand and official seal this day of A.D. 18 {Signature) {Seal.) FORMS OF DEEDS. .g- (114.) Separate Relinquishment of Homestead and Dower in Land sold under Execution. Know all Men by these Presents, That we {}iame and residence of the debtor) and {name of his wife) wife of the said of the County of and State of , parlies of the first part, for the sum of one dollar to us paid by {name of the purchaser) of the County of and State of party of the second part, the receipt whereof is hereby acknowledged, do hereby agree and consent to let the said party of the second part levy and sell, under a certain execution, in favor of him, the said party of the second part, and against {name of the creditor, or the defendant in the suit in which the execution issued) now in the hands of the sheriff of the County of and State of and dated the day of A.D. i8 , the following-described tract of land, situated in the County of and State of to wit {here describe carefully the land or premises granted, as directed in Form 107), (and being the same land heretofore held, used, and occupied by the said parties of the first part, as a homestead) hereby waiving, releasing, relin- quishing, and surrendering to and in favor of said party of the second part, under the said levy and sale on said execution, all the right, title, claim, interest, and benefit which we, the said parties of the first part, and each of us, have in and to said premises, by virtue of any and all homestead-exemp- tion laws, now or heretofore in force in the State of , and more especially " An Act to exempt Homesteads from Sale on Execution," now in force in the State of Witness our hands and seals this the day of 18 . {Signature^ {Seal.) {Signature.) {Seal.) State of , > [-SS. County. ) I, in and for said county, in the State aforesaid, do hereby certify that personally known to me as the same person whose name is subscribed to the annexed instrument, appeared before me this day in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. And the said {the name of the wife) wife of the said having been by me examined, separate and apart, and out of the hearing of her husband, and the contents and meaning of the said instrument of writing having been by me fully made known and explained to her, and she also by me being fully informed of her rights under th'fe Homestead Laws of this State, acknowledged that she had freely and voluntarily executed the same, and relinquished her dower to the lands and tenements therein mentioned, 468 DEEDS CONVEYING LAND. without compulsion of her said husband, and that she does not v.i^h to retract the =ame. Given under my hand and seal this day of A.D. i8 . (Signature.) {Seal.) (115.) Full Warranty Deed, by Indenture, without Release of Homestead or Dower. This Indenture, Made the day of in the year ona thousand eight hundred and between (name, residence, and occupation of the grantor) party of the first part, and (name, residence, and occupation of the grantee) paity of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of lawful money of the United States, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknovi'ledged. and the said party of the second part, and his heirs, executors, and admin- istrators, forever released and discharged from the same, by these presents, has granted, bargained, sold, aliened, remised, released, conveyed, and con- firmed, and by these presents does grant, bargain, sell, aliene, remise, release, convey, and confirm, unto the said party of the second part, and to his heirs and assigns forever, all (here describe carefully the land or premises granted, as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof with the appurtenances : To have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, and his he'rs and assigns, to his and their own proper use, benefit, and behoof forever. And the said (name of the grantor) for himself and his heirs, executors, and administrators, does covenant, grant, and agree to and with the said party of the second part, and his heirs and assigns, that the said (name of grantor) at the time of the sealing and delivery of these presents, is lawfully seized, in his own right, of a good, absolute, and indefeasible estate of inheritance, in fee simple, of and in all and singular the above granted and described premises, with the appurtenances thereunto belonging, and has good right, full power, and lawful authority to grant, bargain, sell, and convey the same, in manner aforesaid. And that the said party of the second part, apd his heirs and assigns, shall and may at all times hereafter, peaceably and quietly, have, hold, use, occupy, possess, and enjoy the above-granted premises, and every part and parcel thereof, with FORMS OF DEEDS. 469 the appurtenances, without any let, suit, trouble, molestation, eviction, or disturbance of the said party of the first part, or his heirs or assigns, or of any other person or persons lawfully claiming or to claim the same ; and that the same now are free, clear, discharged, and unincumbered, of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and incumbrances of what nature or kind soever. And also that the said party of the first part, and his heirs, and all and every person or persons whomsoever, lawfully or equitably deriving any estate, right, title, or interest, of, in, or to the hereinbefore granted premises, by, from, under, or in trust for him or them, shall and will, at any time or times hereafter, upon the reasonable request, and at the proper costs and charges in the law, of the said party of the second part, his heirs and assigns, make, do, and execute, or cause to be made, done, and executed, all and every such further and other lawful and reasonable acts, conveyances, and assurances in the law, for the better and more effectually vesting and con- firming the premises hereby granted or so intended to be, in and to the said party of the second part, his heirs and assigns, forever, as by the said party of the second part, his heirs or assigns, or his or their counsel learned in the law shall be reasonably advised or required. And the said party of the first part, for himself and his heirs, the above-described and hereby granted and released premises, and every part and parcel thereof, with the appur- tenances, unto the said party of the second part, and his heirs and assigns, against the said party of the first part, and his heirs, and against all and every person and persons whomsoever, lawfully claiming or to claim the same, shall and will warrant and by these presents forever defend. In Witness Whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written. (Signature) {Seal.) Sealed and Delivered in the Presence of State of , V Vss. County of , ) On the day of in the year one thousand ei"-ht hundred and before me personally came {the name of the grantor) who is known to me to be the individual described in, and who executed, the foregoing instrument, and acknowledged that he executed the same, as his own free act and deed. (^Signature.) 470 DEEDS CONVEYING LAND. (116.) "Warranty Deed, Short Form, with Release of Homestead and Dower. This Indenture, made this day of in the year of our Lord one thousand eight hundred and between (««;;/.?, residence, and occupation of grantor, and name of his ■wife) of the first part, and (name, residence, and occupation of grantee) of the second part, witnesseth, that the said party of the first part, in con- sideration of the sum of dollars in hand paid (the receipt whereof is hereby acknowledged), have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said party of the second part, his heirs and assigns, all that piece or parcel of land situate in in the County of and State of to wit {here describe carefully the land or premises granted, as directed in Form 107). Together with the appurtenances thereunto belonging ; and all the estate, right, title, interest, claim, and demand of the said party of the first part herein. And the said {name of gr alitor and of his wife) parties of the first part, hereby expressly waive, release, relinquish, and convey unto the said party of the second part, and his heirs, executors, administrators, and assigns, all right, title, claim, interest, and benefit whatsoever, in and to the above- described premises, and each and every part thereof, which is given by or results from any and all laws of this State, pertaining to the exemption of homesteads. And the said {name of grantor and of his wife) for themselves and their heirs, executors, and administrators, do covenant, grant, bargain, and agree to and with the said party of the second part, and with his heirs and assigns, that the above-bargained premises in the quiet and peaceable pos- session of the said party of the second part, and his heirs and assigns, the said party of the first part shall and will warrant and forever defend. In Witness Whereof, The said parties of the first part have hereunto set their hands and seals the day and year first above written. {Signature of grantor.) {Seal.) {Signature of wife of grantor.) {Seal.) Signed, Sealed, and Delivered in Presence of State of ^ >- ss. County. ) f , in and for said county, do hereby certify that {name of grantor) who is personally known to me as the same person whose name is subscribed to the annexed deed, appeared before me this day, in person, and acknowledged that he signed, sealed, and delivered FORMS OF DEEDS. 47 1 the said instrument of writing, as his free and voluntary act, for the uses and purposes therein set forth. And the said {name of the wife of grantor) wife of the said {name of the grantor) having been by me examined separate and apart, and out of the hearing of her husband, and the contents and meaning of the said instrument of writing been by me fully made known and explained to her, and she also by me having been fully informed of her rights, under the Homestead Laws of this State, acknowledged that she had freely and volun- tarily executed the same, and relinquished her dower to the lands and tene- ments therein mentioned, and also all her rights and advantages, under and by virtue of any and all laws of this State relating to the exemption of home- steads, without compulsion of her said husband, and that she does not wish to retract the same. Given under my hand and official seal, this day of A.D. 18 . {Signature) {Sea!.) (117.) "Warranty Deed, with Covenant against Nuisances, without Release of Homestead or Dower. This Indenture, Made the day of in the year one thousand eight hundred and between {name, residence, and occupation of the grantor) party of the first part, and {name, residence, and occupation of the grantee) party of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of lawful money of the United States, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the said party of the second part, his heirs, exerutors, and administrators, forever released and discharged from the same, by these presents, has granted, bar- gained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents does grant, bargain, sell, aliene, remise, release, convey, and confirm, unto the said party of the second part, and to his heirs and assigns forever, all {here describe carefully the land or premises granted, as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof : And also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof, with the appurtenances : to have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the sec- 472 DEEDS CONVEYING LAND. ond part, and his heirs and assigns, to his and their own proper use, benefit, and behoof forever. And the said party of the third part, for himself and for his heirs, execu- tors, and administrators, does hereby covenant, grant, and agree to and with the said party of the second part, and his heirs and assigns, that the said party of the first part, at the time of the sealing and delivery of these pres- ents, is lawfully seized in his own right of a good, absolute, and indefeasible estate of inheritance, in fee-simple, of, and in all and singular the above- granted and described premises, with the appurtenances to them belonging; and has good right, full power, and lawful authority, to grant, bargain, sell, and convey the same, in manner aforesaid. And that the said party of the second part, and his heirs and assigns, shall and may at all times hereafter, peaceably and quietly have, hold, use, occupy, possess, and enjoy the above-granted premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, moles- tation, eviction, or disturbance of the said party of the first part, or his heirs or assigns, or of any other person or persons lawfully claiming or to claim the same : And that the same now are free, clear, discharged, and unincum- bered, of and from all former and other grants, titles, charges, estates, judg- ments, taxes, assessments, and incumbrances of what nature or kind soever. And also that the said party of the first part, and his heirs, and all and every person or persons whomsoever, lawfully or equitably deriving any estate, right, title, or interest, of, in, or to the hereinbefore granted premises, by, from, under or in trust for him or them, shall and will, at any time or times hereafter, upon the reasonable request, and at the proper costs and charges in the law, of the said party of the second part, his heirs and assigns, make, do, and execute, or cause to be made, done, and executed, all and every such further and other lawful and reasonable acts, conveyances, and assurances in the law, for the better and more effectually vesting and con- firming the premises hereby granted, or so intended to be, in and to the said party of the second part, his heirs and assigns, forever, as by the said party of the second part, his heirs or assigns, or his or their counsel learned in the law, shall be reasonably advised or required. And the said party of tht first part, for himself and for his heirs, the above-described and hereby granted and released premises, and every part and parcel thereof, with the appurtenances, unto the said party of the second part, and his heirs and assigns, against the said party of the first part, and his heirs, and against all and every person and persons whomsoever, lawfully claiming or to claim tha same, shall and will warrant and by these presents forever defend. And the said party of the second part, for himself and for his heirs and assigns does hereby covenant to and with the said party of the first part, and with his heirs, executors, and administrators, that neither the said party of the second part, nor his heirs or assigns, shall or will at any time hereafter erect or permit upon any part of. the said lot, any slaughter-house, smith- FORMS OF DEEDS. A7?, shop, forge, furnace, steam-engine, brass-foundry, nail or other iron factory, or any manufactory of gunpowder, glue, varnish, vitriol, ink, or turpentine, or for the tanning, dressing, or preparing skins, hides, or leather, or any brewery, distillery, livery-stable, or buildings for any noxious or dangerous trade or business. In Witness Whereof, the parties to these presents have hereunto inter- changeably set their hands and seals the day and year first abo\e written. (Signature^ [Seal.) Sealed and Delivered in Presence of {Signature.) {Seal.) State of >-ss. County of On this day of hi the year one thousand eight hundred and before me personally came {the najne of the party of the first part, who is the grantor) who is known by me to be the indiridual described, and who executed the foregoing instrument, and then and there acknowledged that he executed the same as and for his own deed. {Signature^ (118.) Brief Warranty Deed in use in Kentucky. Th.is Deed, made the day of i8 °tween {narne, description, and residence of grantor, and name of .intofs wife if her relinqtiishment of dower is intended) of the first part, and of the second part, Witnessetli, That said first party, in consideration of ha bargained and sold and hereby convey unto said second part)', {here describe the premises granted as directed in Form 107) to have and to hold said property unto said second part}-, heirs and assigns forever, " with Covenant of General Warranty," releasing all rights of homestead and dower. Witness the hand of the parties, date above. {Signatures) {Seals.) Logan County, Sct: I, , Clerk of the County Court, do certify that the foregoing Deed was this day produced to me in my and acknowledged by to be act and dec4. Given under my hand, this day of 18 . Clerks By D. C 474 DEEDS CONVEYING LAND. (119.) Brief Deed of Warranty in use in Arkansas. Know all Men by these Presents, That we {tiame, description^ and residence of grantor) and {name of grantor'' s "wife) his wife, for and in consideration of the sum of dollars, to paid by do hereby grant, bargain, and sell unto the said and h heirs and assigns forever, the following lands, lying in the county of and State of Arkansas, to wit: {describe the premises granted as directed in Form 107,) to have and to hold the same unto the said and unto h heirs and assigns forever, with all aj^purtenances thereunto belonging. And hereby covenant with the said that will forever warrant and defend the title to said lands against all claims whatever. And I, wife of the said for and in con- sideration of the said sum of money, do hereby release and relinquish unto the said all my right of dower in and to the said lands. "Witness our hands and seals on this day of 18 , {Signatures.) {Seals.) State of Arkansas, 1 [-SS. County of ) Be it Remembered, That on this day came before the undersigned, a within and for the county aforesaid, duly commissioned and acting to me well known as the grantor in the foregoing deed, and stated that he had executed the same for the consideration and purposes therein mentioned and set forth. And, on the same day, also voluntarily appeared before me, the said wife of the said to me well known, and in the absence of her said husband, declared that she had of her own free will signed and sealed the Relinquishment of Dower in the foregoing deed, for the purposes therein contained and set forth, without compulsion or undue influence of her said husband. "Witness my hand and seal as such on this day of 18 . {Signature) (120.) Brief Warranty Deed in use in Florida. This Indenture, Made this day of A.D., 18 .between {name, residence, and occttpation of the grantor)ol ^t first part, and {na?ne, residence, and occjtpation of the grantee) of the second part, witnesseth, That the said part of the first part, for and in FORMS OF DEEDS. 475 eonsideration of the sum of dollars, paid by the said part of the second part, the receipt of which is hereby aclcnowledged, ha granted, bargained, sold, conveyed, and confirmed, and by these pres- ents do grant, bargain, sell, convey, and confirm unto the said part of the second part, heirs and assigns, certain tract or parcel of land, situated in and described as follows, to wit : (Itere describe the land or premises granted, carefully, as directed in Form 107), to- gether with all and singular, the hereditaments, rights, privileges, and appur- tenances thereunto belonging, or in any wise appertaining, to have and to hold the said premises, as above described, with the appurtenances, to the said part of the second part, heirs and assigns forever. And the said part of the first part, for sel and heirs, executors, and administrators, do hereby covenant to and with the said part of the second part heirs, executors, administrators, and assigns, that well seized of the premises above conveyed, as of a good and indefeasible estate in fee-simple, and ha good right to sell and convey the same in manner and form as aforesaid; that they are free from all encumbrances, and that the above bargained premises, in the quiet and peaceful possession of the said part of the second part, heirs or assigns, against the claims of all persons whomsoever, will warrant and for- ever defend. la Witness 'WTiereof, The said part of the first part ha hereunto set hand and seal the day and year first above written. (Signature) (Seal.) (Signature) (Seal) Signed, Sealed, and Delivered in Presence of State of Florida, ) [■ss. County. ) I, wife of do hereby declare that I have joined with my said husband in the execution of the above deed for the purpose of relinquishing and renouncing iny right of dower, and all my right, title, interest, in and to the above described premises and lands, or parcels of land. And I do hereby declare that I executed the same freely and voluntarily, and without any compulsion, constraint, apprehension, or fear of, or from, my said husband ; and that this acknowledgment is taken and made, signed, and sealed, separately and apart from my said husband, this day of A.D. 18 (Seal) State of Florida, ^ >-ss. County. ) I, a in and for the said county, do hereby certify that the foregoing declaration was taken and made by the said before me separately and apart from her husband— the said ; and that, having been, by ^-j^ DEEDS CONVEYING LAND. me, made acquainted with the contents cf the said deed before the signing thereoi' by her, and being, by me, examined separate and apart from her said husband, acknowledged that she ha;l executed the same, and relinquished and renounced her dower, and all her ri-ht, title, and interest in and to the prem- ises conveyed, freely and voluntarily, and vnthout any compulsion, constraint, apprehension, or fear of, or from, her said husband. In "Witness V/hereof, I have hereunto set rny hand ahd affixed my offi- cial seal, this day of A.D. l8 (Signature) State of Florida, ^ [-SS. County. ) I, for said county, do certify that, on this day, personally appeared before me whose name appear signed to the foregoing deed of conveyance, and who personally known to me to be the identical person whose name subscribed to said deed as having executed the same, and acknowledged that had executed the same, as voluntary act and deed, for the uses and purposes therein expressed. In V/itness "WTiereof, I have hereunto set my hand and affixed my official seal this day of A.D. i8 {Signature.) (121.) Brief ■Warranty Deed in use in North Carolina. This Deed, Made this day of iS , by {name and occupation of grantoi^, Qii county, and State of to {name and occupation of grantee"), of county, and State of Witnesseth : That said in consideration of dollars, to paid by , the receipt of wliich is hereby acknowledged, ha bargained and sold, ^nd by these presents do bargain, sell, and convey to said and heirs, a tract of land in county, State of adjoining the Mnds of and others, bounded and described as follows, viz : {here describe carefully the land or premises granted, as directed in Form 107). To Have and to Hold the aforesaid tract and all privileges and appurtenances thereto belonging, to the said heirs and assigns, to only use and behoof. And the said covenant that seized of said premises in fee, and ha right to convey the same in fee-simple, that the same are free from all incumbrances, and that will warrant and defend the said title to the same, against the claims of all persons what- soever. FORMS OF DEEDS. 477 And I wife of the said grantor, for the aforesaiJ con- siderations do hereby grant and release to the said grantee and heirs, all my rij^ht of dower and all other my right, title, and interest in and to the premises above granted. In Testimony Whereof, The said {name of grantor and his wife) have hereunto set our hands and seals, the day and year above written. {Seals^ Attest: State of North Carolina, ^ Vss. County. ) I,' Clerk of the Court, do hereby certify that and his wife, appeared before me this day, and acknowledged the due execution of the annexed deed of ; and the said being by me pri- vately examined, separate and apart from her said husband, touching her vol- untary execution of the same, doth state that she signed the same freely and voluntarily, without fear or compulsion of her said husband or any other person, and that she dolh still voluntarily assent thereto. Let the same, with this certificate, be registered. Witness my hand and official seal, this day of A.D. 18 . Clerk Court. State of North Carolina, ) )■ ss. County. ) I, Justice of the Peace, do hereby certify that and his wife, personally appeared before • me this day, and acknowledged the due execution of the within deed of ; and the said being by me privately exam- ined, separate and apart from her said husband, touching her voluntary exe- cution of the same, doth state that she signed the saine freely and volunta- rily, without fear or compulsion of her said husband or any other person, and that she doth still voluntarily assent thereto. Witness my hand and private seal, this day of A.D. 18 . ,J.P. {Seal.) State of North Carolina, ^ ^ss. County. ) The foregoing certificate of , a Justice of the Peace of County, is adjudged to be in due form and accord- ing to law. Therefore, let the same, with this certificate, be registered. This day of 18 . Clerk Court. 478 DEEDS CONVEYING LAND. (122.) Brief "Warranty Deed in use in Mississippi. This Indenture, Made and entered into this day of in the year of our Lord, one thousand eight hundred and between {nar?ie, residence, and occupation of the grantor), the part of the first part and {name, residence, atid occupation of the grantee), part of the second part, witnesselh : That the said part of the first part, for and in consideration of the sum of the receipt whereof is hereby aclcnowledged, ha this day granted, bar- gained, sold, and conveyed, and by these presents do grant, bargain, sell, and convey unto the said part of the second part, and to heirs and assigns, all and singular the following described of land situate, lying, and being in the {here describe the land or premises granted, carefully, as directed in Form 107). To Have and to Hold the said of land together with all and singular the rights, privileges, and appurtenances thereunto legally and of right belonging, to the said part of the second part, and to heirs and assigns in fee-simple, absolute forever, and the said part of the first part, for heirs, executors, administrators, and assigns, covenant and agree to warrant and forever defend the right, title, interest, and possession of the estate herein granted, to the said part of the second part, heirs and assigns, against the claim or claims of any and all persons claiming or to claim the same whatsoever either in law or equity. In Testimony "Whereof, The said part of the first part ha here- unto set their hands and seals the day and year first above written. {Signatures) {Seals.) The State of Mississippi, [■ ss. Personally Appeared, Before me the above named signed, sealed, and delivered the foregoing deed, on the day and year therein written, as their act and deed, for the purpose* therein set forth. (123.) Warranty Deed in tise in Missouri. This Indenture, Made on the day of A.D. one thousand eight hundred and by and between {name and occupation of the grantor, and name of his wife if she relinquishes dower), of {residence of the grantor), part of the first part, and {name and occupation of the grantee), of the county of in the State of part of the second part ; Witnesseth, That the said part of the first part, in consideration of the sum of dollars, to paid by tlie said part of the FOR.\fS OF DEEDS. 479 second part, the receipt of which is hereby acknowledged, do by these presents, grant, bargain, sell, convey, and confirm unto the said part of the second part, heirs and assigns, the following described lots, tracts, or parcels of property, lying, being, and situate in the county of and State of to-wit : {here describe the premises granted, as directed in Fonn 107). To Have and to Hold the premises aforesaid, with all and singular the rights, privileges, appurtenances, and immunities thereto belonging, or in anywise appertaining, unto the said part of the second part, and unto heirs and assigns forever : the said {name of the grantor), hereby covenanting that lawfully seized of an indefeasible estate in fee in the premises herein conveyed ; that ha good right to convey the same ; that the said premises are free and clear of any encum- brances done or suffered by or those under whom claim ; and that will warrant and defend the title to the said premises unto the said part of the second part, and unto heirs and assigns forever, against the lawful claims and demands of all persons whomsoever. In Witness Whereof, The said part of the first part ha here- unto set hand and seal the day and year first above written. {Signatures.) {Seals.) Signed, Sealed, and Delivered in the Presence of State of ) >-ss. County of ) Be it Remem'bered, That on this day of , A.D. 18 , before the undersigned, a within and for the county of and State of personally came who are personally known to me to be the same persons whose names are subscribed to the foregoing instrument of writing, as parties hereto, and acknowledged the same to be their voluntary act and deed for the purposes therein mentioned.- And the said being by me first made acquainted with the contents of said instrument, upon an examination separate and apart from husband , acknowl- edged that executed the same, and rehnquishes dower in the real estate therein mentioned, freely without fear, compulsion, or undue influence of said husband . And I certify that I qualified as Notary Public and my term expires In Testimony Whereof, I have hereunto set my hand and affix my ofH- cial seal, at my office, in the day and year first above written. , {Seal.) 48o DEEDS CONVEYING LAND. form of acknowledgment if the grantor is single and unmarried. State of ) Vss. County of ) Be it Remembered, That on day of A.D. i8 , before the undersigned, a within and for the county of aforesaid, personally came who is personally known to me to be the same person whose name is sub- scribed to the foregoing instrument of writing, as a party thereto, and acknowledged the same to be act and deed for the purposes therein mentioned. And the said further declared to be single and unmarried. And I certify that I qualified as Notary Public and my term expires In Testimony "Whereof, I have hereunto set my hand, and affixed my official seal, at my office, in the day and year first above written. {Seal:) (124.) Brief "Warranty Deed in use in "Wisconsin. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and between {jiaim a7id occupation of the grantor'), of the county of State of of the first part, and {iiavie and occtipation of the grantee) of the county of and State of of the second part. Witnesselh, That the said part of the first part, for and in consideration of the sum of dollars, to in hand paid by the part of the second part, the receipt of which is hereby acknowledged, ha given, granted, bargained, sold, remised, released, aliened, and confirmed, and by these presents do give, grant, bargain, sell, remise, release, aliene, and confirm unto the said part of the second part heirs and assigns forever, the following described premises, real estate, lying and being in the county of State of to-wit ; (Jiere describe the land granted, as directed in Form 107). ToQ^ether with all and singular, the hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversion or rever- sions, remainder and remainders, and the issues and profits thereof, and all the estate, right, title, interest, claim or demand v/hatsoever of the said part of the first part, either in law or equity, of and to the above bargained premises, with the hereditaments and appurtenances thereto belonging. To Have and to Hold the said premises above bargained, and described with the appurtenances, unto the said part of the second part, FORMS OF DEEDS. 481 heirs and assigns forever. And the said for and heirs, executors, and administrators, do covenant, grant, bargain, and agree, to and with the said part of the second part, heirs and assigns, that at the time of ensealing and delivery of these presents, well seized of the premises above conveyed, as of good, sure, perfect, absolute, and indefeasible estate of inheritance in the law in fee-simple, and ha good right, full power, and lawful authority to grant, bargain, sell, and convey the same in manner and form aforesaid, and that the same is free and clear of all former and other grants, bar- gains, sales, liens, judgments, taxes, assessments, and incumbrances of what kind and nature soever, and the part of the first part, the above bargained premises, in the quiet and peaceable possession of the said part of the second part, heirs and assigns, against all and every per- son or persons lawfully claiming or to claim the whole or any part thereof, will warrant and forever defend. In "Witness "Wliereof, The said part of the first part ha hereunto set hand and seal the day and year first above written. (Signatures.) (Seals.) Signed, Sealed, and Delivered in Presence of State of ) >-ss. County of ) Be it Kemembered, That on the day of A.D. 18 personally came before me the above named to me known to be the person who executed the foregoing deed, and acknowledged the execution thereof to be free act and deed for the uses and purposes therein mentioned. (Signature^ (125.) Warranty Deed in use in Pennsylvania. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between (name, residence, and occupation of the grantor) and (name of the wife of the gra^itor), parties of the first part, and (name, residence,, and occupation of the grantee) party of the other part, Witnesseth, That the said parties of the first part, for and in consideration of the sum of lawful money of the United States of America, unto them well and truly paid by the said party of the second part, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, granted, bargained, sold, aliened, enfeoffed, released, and confirmed, and by these presents do grant, bargain, sell, aliene, enfeoff, release, and confirm unto the said (name of grantee) his heirs and assigns, the following described parcel of land ; that is to say, (here describe carefully the premises granted, as directed in Form 107.) 31 482 DEEDS CONVEYING LAND. Together with all and singular the , ways, waters, water courses, rights, liberties, privileges, hereditaments, and appurtenances what- soever thereunto belonging or in any wise appertaining, and the reversions and remainders, rents, issues, and profits thereof; and all the estate, right, title, interest, property, claim, and demand whatsoever of the said parties of the first part in law, equity or otherwise howsoever, of, in, and to the same and every part thereof. To have and to hold the said hereditaments and premises hereby granted, or mentioned and intended so to be, with the appurtenances unto the said , his heirs and assigns, to and for the only proper use and behoof of the said , his heirs and assigns forever. And the said parties of the first part, their heirs, executors, and administrators, do by these presents, covenant, grant, and agree to and with the said , his heirs and assigns, that they, the said parties of the first part, their heirs, all and singular the hereditaments and premises herein above described and granted, or mentioned and intended so to be, with the appurtenances, unto the said party of the second part, his heirs and assigns, against the said parties of the first part, and their heirs, and against all and every other per- son or persons whomsoever lawful claiming or to claim the same or any pari thereof, shall and will warrant and forever defend. In V/itness Whereof, The said parties to these presents have hereunto interchangeably set their hands and seals, the day and year first abovf' written. {Signatures.) (Seals.) Sealed and Delivered in Presence of Received, The day of the date of the within or aforegoing Indenture of the within named On the day of Anno Domini, 18 before me personally appeared the above named {names of grantor and grantee) and in due form of law acknowledged the above Indenture to be their and each of their act and deed, and desired the same might be recorded as such, and the said being of full age and separate and apart from said husband by me thereon privately examined, and the full contents of the above Deed being by me first made known unto did thereupon declare and say that did voluntarily and of own free will and accord, sign, seal, and as act and deed, deliver the above written Indenture, Deed or Conveyance without any coercion or compulsion of said husband. Witness my hand and seal, the day and year aforesaid. {Sigtiaiure.) {Seal.) (126.) Full "Warranty Deed in use in New Jersey. This Indenture, Made the day of in the year one thousand eight hundred and between {name, residence, FORMS OF DEEDS. 483 and occupation of the grantor or grantors) part of the first part, and {iiaine^ residence, and occupation of the grantee or grantees) part of the second part, witnesseth, that the said part of the first part, for and in con- sideration of the sum of lawful money of the United States of America, to in hand paid by the said part of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the said part of the second part, heirs, executors, and administrators, forever released and discharged from the same by these presents, ha granted, bargained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents do grant, bargain, sell, aliene, remise, release, convey, and confirm unto the said part of the second part, and to heirs and assigns forever, all IJiere describe carefully the land or jireinises granted, substantially as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also, all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said part of the first part, of, in, or to the above described premises, and every part and parcel thereof, with the appurtenances. To have and to hold all and singular the above-mentioned and described premises, together with the appurtenances, unto the said part of the second part, heirs and assigns, to own proper use, benefit, and behoof forever. And the said for heirs, executors, and administra- tors do covenant, grant, and agree, to and with the said part of the second part, heirs and assigns, that the said at the time of the sealing and delivery of these presents, lawfully seized in of a good absolute and indefeasible estate of inheritance in fee- simple, of and in all and singular the above granted, bargained, and de- scribed premises, with the appurtenances, and ha good right, full power, and lawful authority to grant, bargain, sell, and convey the same in manner and form aforesaid. And that the said part of the second part, heirs and assigns, shall and may at all times hereafter, peaceably and quietly have, hold, use, occupy, possess, and enjoy, the above granted premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, moles- tation, eviction, or disturbance, of the said part of the first part, heirs or assigns, or of any other person or persons lawfully claiming, or to claim the same. And that the same now are free, clear, discharged, and unincumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and incumbrances of what nature or kind soever. And also, that the said part of the first part, and heirs, and all 484 DEEDS CONVEYING LAND. and every other person or persons whomsoever lawfully or equitably deriving any estate, right, title, or interest, of, in, or to the hereinbefore granted premises, by, from, und«r, or in trust for them, shall and will at any time or times hereafter, upon the reasonable request, and at the proper costs and charges in the law, of the said part of the second part, heirs and assigns ; make, do, and execute, or cause or procure to be made, done, or executed, all and every s'lch further and other lawful and reasonable acts, conveyances, and assurances in the law for the better and more effectually vesting and confirming the premises hereby intended to be granted, in and to the said part of the second part, heirs and'assigns forever, as by the said part of the second part, heirs or assigns, or counsel learned in the law, shall be reasonably devised, advised, or required. And the said heirs, the above described and hereby granted and released premises, and every part and parcel thereof, with the appurtenances, unto the said part of the second part, heirs and assigns, against the said part of the first part, and heirs, and against all and every person and persons whomsoever, lawfully claiming or to claim the same, shall and will warrant, and by these presents forever defend. In "Witness "Whereof, the said part of the first part ha hereunto set hand and seal the day and year first above written. (Signatures.) (Seals.) Signed, Sealed, and Delivered in the Presence of ss. State of CotTNTY. Be it Remembered, That on this day of in the year one thousand eight hundred and before me personally appeared who, I am satisfied, the grantor in the within Indenture named ; and I having first made known to the contents thereof, did acknowledge that signed, sealed, and delivered the same as voluntary act and deed for the uses and purposes therein expressed. And the said being by me privately examined, separate and apart from said husband did further acknowledge that signed, sealed, and delivered the same as voluntary act and deed freely, and without any fear, threats, or compulsion of or from said husband. (127.) A Brief "Warranty Deed in use in Ohio. To all people to wliom these Presents shall come, Greeting : Know ye, that I {or we), {name, residence, and occupation of grantor) for the consideration of received in full satisfaction of FORMS OF DEEDS, 48s {name, residence, and occtipaiion of grantee) do give, grant, bargain, sell, and confirm unto the said the following described tract or lot of land, situate in the of in the County of and State of (here describe carefully the land or premises granted, as directed in Form 107) be the same more or less, but subject to all legal highways. To have and to told the above granted and bargained premises, with the appurtenances thereto belonging, unto the said {name of grantee) heirs and assigns forever, to {him, or them) and {his, or their) own proper use and behoof. And I (or w«) the said {najne of grantor, or grantors) do for heirs, executors, and administrators, covenant with the said heirs and assigns, that at and until the ensealing of these presents, well seized of the premises,, as a good and indefeasible estate in fee-simple, and have good right to bargain and sell the same in manner and form as above written, and that the same be free from all encumbrance whatsoever. And furthermore, the said do by these presents bind heirs forever to warrant and defend the above granted and bargained premises to the said heirs and assigns, against all lawful claims and demands whatsoever. And I, (wife of) the said do hereby remise, release, and forever quitclaim unto the said heirs and assigns, all my right and title of dower in the above described premises. In Witness Whereof, have hereunto set hand and seal the day of in the year of our Lord one thousand eight hundred and {Signatures.) {Seals.) Signed, Sealed, and Delivered in the Presence of The State of Ohio, ) Vss. County of ) 187 Before me, a within and for said County, personally appeared the said and acknowledged that did sign and seal the foregoing instrument, and that the same is free act and deed. I further Certify that I did examine the said separate and apart from her said husband, and did then and there make known to her the contents of the foregoing instrument, and upon that examina- tion she declared that she did voluntarily sign, seal, and acknowledge the same, and that she was still satisfied therewith. In Testimony Whereof, I hereunto set my hand and official seal this day of A.D. 18 {Sig}iature>) 486 DEEDS CONVEYING LAND. (128.) BriefWarranty Deed in use in Minnesota. This Indenture, Made this day of A.D. one thousand eight hundred and between {name and occupation of the grantor) of the County of and State of part of tlie first part, and {name and occupation of the granted) of the County of and State of part of the second part, ■Witnesseth, That the said part of the first part, in consideration of the sum of dollars, to in hand paid by the part of the second part, the receipt whereof is hereby acknowledged, do by these presents grant, bargain, sell, and convey, to the said part of the second part, heirs and assigns forever, all the following described piece or parcel of land, lying and being in the County of and State of Minnesota, to wit {here describe carefully the land or premises granted, as directed in Form 107). To Have and to Hold the Same, Together with all the heredita- ments and appurtenances thereunto in any wise appertaining. And the said part of the first part, do covenant with the said part of the second part heirs and assigns, as follows : That lawfully seized of said premises, in fee-simple, and that good right and power to grant and convey the same ; that the same free from all incumbrances, and that the said part of the second part, heirs and assigns, shall quietly enjoy and possess the same ; and that the said part of the first part will warrant and defend the title to the same against all lawful claims. In Testimony Whereof, The said part of the first part hereunto set hand and seal , the day and year above written. {Signatures.) {Seals.) Signed, Sealed, and Delivered in Presence of State of Minnesota, County of On this day of A. D. 18 , before me the undersigned personally came to me personally known to be the identical individual described in, and who executed the forejoinj deed, and acknowledged that executed the same freely and volur.. tarily, for the uses and purposes therein expressed. {Signature) FORMS OF DEEDS. 487 (129.) "Warranty (or Guaranty) Deed in use in Louisiana. STATE OF LOUISIANA, Parish and City of New Orleans. Be it Known, That on this day of in the year of our Lord one thousand eight hundred and and of the Independence of the United States of America, the one hundred and I , before me, , a Notary Public in and for the Parish of Orleans, State of Louisiana, duly commissioned and qualified, and in the presence of the witnesses hereinafter named and under- signed, personally came and appeared (name, reside7ice, and occupation of grantor or grantors) who declared that for the consideration and on the terms and conditions hereinafter expressed {he or they) by these presents grant, bargain, sell, convey, transfer, assign, and set over, with a full guarantee against all troubles, debts, mortgages, liens, evictions, alienations, or other incumbrances of every nature and kind whatsoever, unto {name, residence, and occupation of grantee or grantees) here present heirs and assigns, and acknowledging delivery and possession thereof. Lot of land, together with the improvements thereon, and all rights, ways, privileges, and appurtenances thereunto belong- ing or in any wise appertaining, situate in the {Jiere describe the land or premises granted, fully and accurately and substan- tially, as directed in Form 107.) To Have and to Hold the said property and appurtenances unto the said purchaser , heirs and assigns forever. And the said vendor hereby bind and heirs forever to warrant and defend the property and appurtenances herein conveyed, against all legal claims and demands whatever. The said vendor moreover transfer unto the said purchaser all the rights and actions of warranty to which or may be entitled, against all the former proprietors of the property herein conveyed, subro- gating said purchaser to the said right and actions to be by enjoyed and exercised in the same manner as they might have been by the said vendor. This Sale is Made and Accepted for and in consideration of the price and sum of And in order to secure the punctual payment of the said promissory note , at maturity, as well as of all interest to accrue thereon, and in order, furthermore, to secure the payment and reimbursement of any and all law- yers' fees that may be expended or incurred in the event of suit being insti- tuted to enforce the payment of said note in principal or interest, or any part thereof (which lawyers' fees, however, are fixed at five per cent, on the amount so in suit, and said purchaser consent and 488 DEEDS CONVEYING LAND. agree to pay and allow the same), the said purchaser hereby specially mortgage , affect , and hypothecate the herein described and conveyed property unto and in favor of the said vendor , as well as of any and all future owner or owners of the said note ; promising and binding and heirs not to alienate, deteriorate, nor encumber the said property to the prejudice of this mortgage, nor of the special lien and vendor's privilege which the said vendor hereby retain on said property until the full and final payment of said note. And the said declared that do by these presents, bind and obligate to cause all and singu- lar the buildings and improvements on the herein described and conveyed property to be insured and kept insured against the risk of fire, by one of the insurance companies of this city, in the sum of dollars, until the full and final payment of the afore described , and to transfer and deliver unto the said vendor or any and all future owner or owners of the said the policy or policies of the said insurance or insurances ; in default whereof, said vendor or any and all future owner or holders of said is and are hereby authorized to cause such insurance or insurances to be made and effected at the cost, charge, and expense of the said purchaser . But this clause shall not be construed as obligatory on such holder or holders, or as making them liable for any loss, damage, or injury which may result from the non-insurance of said buildings. According to the several certificates of the Recorder of Mortgages and the Register of Conveyances in and for this City and Parish, bearing even date herewith, and hereto annexed for reference, it appears that the said vendor has not alienated the herein described and conveyed property, and that the same is free from all mortgages or other incumbrances in his name. And now to these Presents, personally came and appeared. Madam who after having taken cognizance of the foregoing act, which I, the said Notary, carefully read and explained to declared and said that approve and ratif the same, and that it is wish and intention to release in favor of the said purchaser , the property herein described, from the matrimonial, dotal, paraphernal, and other rights, and from any claims, mortgages, or privileges to which may be entitled, whether by virtue of marriage with said husband, or otherwise. Whereupon, I, the said Notary, did inform the said apart, and out of the presence and hearing of her husband, and before re- ceiving her signature hereto, that by the laws of this State, the wife has a legal mortgage on the property of her husband: First. For the restitution of her dowry, and for the reinvestment of the dotal property sold by her husband, and which she brought in marriage, reckoning from the celebra- FORMS OF DEEDS. 489 tion of the marriage. Secondly. For the restitution and reinvestment of the dotal property by her acquired since marriage, whether by succession or donation, from the day the succession was opened or the donation perfected. Thirdly. For nuptial presents. Fourthly. For debts by her contracted with her husband. And Fifthly. For the amount of her paraphernal prop- erty alienated by her and received by her husband, or otherwise disposed of for his individual interest : That in making her intended renunciations she would deprive herself irrevocably and forever of all the rights of reclamation against the property herein described, whether under mortgage privilege or otherwise. And the said did thereupon declare unto me, Notary, that she was fully aware of and acquainted with the nature and extent of the matrimonial, dotal, paraphernal, and other rights and privileges thus secured to her by the law on the property of her said husband, and that she never- theless did persist in her intention of renouncing, and does formally re- nounce, not only all the rights, claims, and privileges hereinbefore enumerated and described, but all others of any nature and kind whatever to which she is, or may be entitled, by any laws now or heretofore in force in the State of Louisiana. And the said being now present, aiding and authorizing the said in the execution of these presents, the said did again declare that did and do hereby make a formal renunciation and relinquishment of all said matrimonial, dotal, paraphernal, and other rights, claims, and privileges, in favor of said purchaser , binding and heirs at all times to sustain and acknowledge the validity of this renunciation. Thus Done and Passed, in my ofiSce, at New Orleans aforesaid, in the presence of and witnesses, both of this city, who hereunto sign their names with the parties, and me, the said Notary, the day and date aforesaid. {Signatures.) (Seals.) (130.) Deed of G-rant and Quitclaim of Property and Mining Rights, in use in California and other . Mining States. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between {name, residence, and occupation of the grantor) the party of the first part, and {name, residence, and occupation of the grantee) the part of the second part, Witnesseth, that the said part of the first part, for and in considera- tion of the sum ot dollars, of the United States of America, to in hand paid by the said part of the second part, the receipt whereof is hereby acknowledged, ha 490 DEEDS CONVEYING LAND: granted, bargained, sold, remised, released, and forever quitclaimed, and by these presents do grant, bargain, sell, remise, release, and forever quit- claim unto the said part of the second part and to heirs and assigns ijiere describe carefully the land or premises granted, as directed in Form 107). Together with all the dips, spurs, and angles, and also all the metals, ores, gold, and silver-bearing quartz, rock, and earth therein ; and all the rights, privileges, and franchises thereto incident, appendant, and appur- tenant, or therewith usually had and enjoyed ; and, also, all and singular the tenements, hereditaments, and appurtenances thereto belonging, or in any wise appertaining, and the rents, issues, and profits thereof ; and, also, all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said part of the first part, of, in, or to the said premises, and every part and parcel thereof, with the appurtenances. To Have and to Hold, all and singular the said premises, together with the appurtenances and privileges thereto incident, unto the said part of the second part, heirs and assigns forever. In "Witness Whereof, the said part of the first part, ha hereunto set hand and seal the day and year first above written. {Signatures^ {Seals.) Signed, Sealed, and Delivered in the Presence of (131.) "Warranty Deed made under the Statute of Illinois. This Indenture "Witnesseth, That the grantor , {name and occupation of the grantor) of the {residence of the grantor) in the County of and State of for and'in consideration of the sum of dollars, in hand paid. Convey and Warrant to {name and occupation of grantee) of the {residence of grantee) County of and State of the following described real estate, to wit, {here describe carefully the land or premises granted, as directed in Form 107) situated in the County of in the State of Illinois, hereby releasing and waiving all rights under and by virtue of the Homestead Exemption Laws of this State. Dated this day of A.D. 18 . {Signatures.) {Seals.) State of ^ > ss. County o? ) I, in and for said County, in the State aforesaid, do hereby certify, that personally known to me to be the same person whose name subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he signed, sealed, and delivered the said instrument as free and voluntary act, for the uses FORMS OF DEEDS. 45 1 and purposes therein set forth, including the release and waiver of the right of homestead. Given under my hand and seal, this day of 18 . {Signature.) (132.) "Warranty Deed in use in South Carolina. THE STATE OF SOUTH CAROLINA. Know all Men by these Presents, That {name, residence, and occupation of grantor) in the State aforesaid, in consideration of the sum of to in hand paid at and before the sealing of these presents, by (name, residefice, and occupation of grantee) in the State aforesaid (the receipt whereof is hereby acknowledged) have granted, bargained, sold, and released, and by these presents do grant, bar- gain, sell, and release unto the said (name of grantee) {here describe the land or premises granted, carefully, as directed in Form loy). Together with all and singular the rights, members, hereditaments, and appurtenances to the said premises belonging, or in anywise incident or appertaining. To Have and to Hold all and singular the premises before mentioned unto the said heirs and assigns forever. And do hereby bind (myself), and heirs, executors, administrators, to warrant and forever defend all and singular the said premises unto the said , heirs and assigns, against and heirs, and all and every other person or persons lawfully claiming or to claim the same, or any part thereof. And , the said , for sel and heirs, executors, and administrators, do covenant, promise, grant, and agree to and with the said heirs' and assigns, by these presents, in manner and form following : that is to say, That the said now at the time of the sealing and delivery of these presents, lawfully and absolutely seized of and in the said and all and singular other the premises hereinbefore mentioned, and intended to be hereby granted and released, and every part and parcel thereof, with their and every of their appurtenances, of a good, sure, perfect, and absolute state of inheritance, in fee-siiiiple, without any manner of condition, trust, proviso, power of revocation, or limitation, or any use or uses, or other restraint, matter, or thing whatsoever, to alter, change, charge, defeat, or evict the same. And also, that the said now ha in sel good right, full power, and lawful and absolute authority to grant, release, and confirm the said - and all and singular other the premises hereinbefore mentioned, and intended to be hereby granted and released, and every part and parcel thereof, with their and every of their appurtenances, unto the said heirs and assigns forever, as aforesaid. And also, that it shall and may be lawful to and for the said heirs and assigns, from time to time, and at all times, forever 492 DEEDS CONVEYING LAND. hereafter, peaceably and quietly to enter into, have, hold, occupy, possess, and enjoy the said and all and singular other the premises hereinbefore mentioned and intended to be hereby granted and released, and every part and parcel thereof, with their and every of their appurtenances, "without any of the lawful let, suit, trouble, molestation, eviction, or inter- ruption of the said executors or administrators, or any other person or persons whatsoever : And that free and clear, and freely and clearly and absolutely acquitted, exonerated, and discharged of and from all and all manner of former and other gifts, grants, bargains, sales, uses, wills, initials, jointers, dowers, judgments, executions, charges, and incumbrances whatsoever, had, made, done, committed, or suffered by the said or any other person or persons whatsoever. And lastly, that the said and heirs, and all and every other person or persons lawfully claiming or to claim any estate, right, title, trust, or interest of, in, or to the said , and all and singular other the premises hereinbefore mentioned, and intended to be hereby granted and released, or any part or parcel thereof, shall and will, from and at all times hereafter, at the reasonable request and proper costs and charges of the law, of the said heirs and assigns, make, do, acknowledge, and execute, or cause and procure to be made, done, acknowledged, and executed, all and every such further and other lawful and reasonable act and acts, thing and things, conveyances and assur- ances in the law whatsoever, for the further, better, and more perfect and absolute granting, conveying, and assuring the said and all and singular other the premises hereinbefore mentioned, and intended to be hereby granted and released, and every part and parcel thereof, with their and every of their appurtenances, to and for the use and behoof of the said heirs and assigns forever, as by him or them, or by his or their counsel, learned in the law, shall be reasonably devised, or advised and required. Witness hand and seal this day of in the year of our Lord one thousand eight hundred and and in the year of the Independence of the United States of America. {Signature^ Signed, Sealed, and Delivered in the presence of The State of South Carolina, County. Personally appeared before me, and made oath that saw the within named sign, seal, and as act and deed, deliver the within written deed ; and that with witnessed the execution thereof. Sworn to before me, this day of i8 . {SignaUire^ FORMS OF DEEDS. 453 The State of South Carolina, ^ County. ' I, do hereby certify unto all whom it may concern, that Mrs. wife of the within named did this day appear before me, and upon being privately and separately examined by me, did declare that she does freely, voluntarily, and without any manner of compulsion, dread, or fear of any person or persons whomsoever, renounce, release, and forever relinquish unto the within named heirs and assigns, all her interest and estate, and also all her right and claim of dower of, in, or to all and singular the premises within mentioned and released. Given under my hand and seal, this day of Anno Domini 18 , (Signaiure^ (133.) Brief "Warranty Deed in use in California. This Indenture, Made the day qf in the year of our Lord one thousand eight hundred and between {name, residence, and occupation of grantor or grantors), part of the first part, and (name, residence, and occupation of the grantee or grantees), the part of the second part, witnesseth, that the said part of the first part, for and in consideration of the sum of dollars of the United States of America, to in hand paid by the said part of the second part, the receipt whereof is hereby acknowledged, do by these presents, grant, bargain, sell, convey, and confirm unto the said part of the second part, and to heirs and assigns, forever {Jiere describe carefully the land or premises granted, substantially as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur« tenances thereunto belonging, or in any wise appertaining, and the rents, issues, and profits thereof. To Have and to Hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said part of the second part, and to heirs and assigns forever. And the said part of the first part, and heirs, the said premises, in the quiet and peaceable possession of the said part of the second part, heirs and assigns, against the said part of the first part, and heirs, and against all and every person and persons whomsoever, lawfully claiming or to claim the same, shall and will warrant, and by these presents forever defend. In Witness Whereof, the said part of the first part ha hereunto set hand and seal the day and year first above written. (Signatures.) (Seals.) Signed, Sealed, and Delivered in the Presence of 494 DEEDS CONVEYING LAND. (134.) Trust Deed, by way of Mortgage, in use in Virginia and West Virginia. This Deed, made this day of in the year i8 , between {name, residence, and occupation of grantor or grantors) part of the first part, and {name, residence, and occupation of the grantee or 'grantees) part of the second part, witnesseth : That the said part of the first part do grant unto the said part of the second part, the following property, to wit, (here describe carefully the land or premises granted, as directed in Form 107). In Trust to secure to of the the payment of the sum of in the event that default shall be made in the payment of either of the above-mentioned as they become due and payable, then the trustees, or either of them, on being required to do so by executors, administrators, or assigns, shall sell the property hereby con- veyed. And it is covenanted and agreed between the parties aforesaid, that in case of a sale the same shall be made after first advertising the time, place, and terms thereof, for days, in some newspaper published in the , and upon the following terms, to wit : for cash as to so much of the proceeds as may be necessary to defray the expenses of execut- ing this trust, the fees for drawing and recording this deed, if then unpaid, and to discharge the amount of money then payable upon the said and if at the time of such sale any of the said shall not have become due and payable, and the purchase money be sufficient, such part or parts of the said purchase money as will be sufficient to pay off and dis- charge such remaining shall be made payable at such time or times as the said remaining will become due ; the payment of which part or parts shall be properly secured ; and in case the net proceeds of sale shall be insufficient to pay off all of the said in full, then the same shall be applied towards the payment of the said in the order of their maturity, intending hereby to create a priority in favor of each of said over any other which may become due and payable subsequent thereto ; and if there be any residue of said purchase money, the same shall be made payable at such time, and secured in such manner as the said part of the first part executors, adminis- trators, or assigns shall prescribe and direct, or in case of failure to give such direction, at such time and in such manner as the said Trustees, or either of them, shall think fit. The said part of the first part covenant to pay all taxes, assessments, dues, and charges upon the said property hereby conveyed, so long as or heirs or assigns shall hold the same, and hereby waive the benefit of Homestead Exemption as to the debt secured by this deed. If no default shall be made in the payment of either of the above-men- tioned then upon the request of the part of the first part, a FORMS OF DEEDS. 455 good and sufficient deed of release shall be executed to at own proper costs and charges. Witness the following signature and seal . {Signatures^ {Seals.) State of Virginia. of to wit: I, for the aforesaid, iii the State of Virginia, do certify that whose name signed to the writing above, bearing date on the day of 18 , ha acknowledged the same before me in my aforesaid. Given under my hand, this day of iS . Memo. — To be acknowledged before a Justice or Notary Public. State of Virginia, of to wit : for the of in the State of Virginia, do certify that the wife of whose names are signed to the writing above, bearing date on the day of 18 , personally appeared before in the aforesaid, and being examined by privily and apart from her husband, and having the writing aforesaid fully explained to her, she, the said acknowledged the said writing to be her act, and declared that she had willingly executed the same, and does not wish t«- retract it. Given under hand this day of 18 . Memo. — Before two Justices or a Notary Public. (135.) Deed of Trust to Secure a Debt, Payable in G-old Coin, in Use in California. This Deed of Trust, made this day of A. D. eighteen hundred between {name, residence, and occupation of the debtor and grantor) , of the first part, and {name, residence, and occupation of the grantee or grantees, trustee or trustees) of part of the second part, and {name, residence, and occupation of creditor, for whose security the trust is created) of the third part, witnesseth : Wliereas, the said ha borrowed and received of the said in gold coin of the United States, the sum of dollars, and ha agreed to repay the same on the day of A. D. eighteen hundred and to the in like gold coin, with interest, according to the terms of a certain promissory note, of even date herewith, executed and delivered there- for by the said Now this Indeature 'Witnesseth, That the said part of the first part, 496 DEEDS CONVEYING LAND. in consideration of the aforesaid indebtedness to the and of one dollar to in hand paid by the part of the second part, the receipt whereof is hereby acknowledged, and for the purpose of securing the payment of said pronnissory note, and of any sum or sums of money, with interest thereon, that may be paid or advanced by, or may otherwise be due to the part of the second or third part, under the provisions of this in- strument, do by these presents grant, bargain, sell, convey, and confirm unto the part of the second part in joint tenancy, and to the survivor of them, their successors and assigns, the piece or parcel of land situate in the , county of , State of , described as follows : (Jiere describe carefully the land or premises conveyed substantially as directed in Form 107.) And also, all the estate and interest, homestead, or other claim or demand, as well in law as in equity, which the said part of the first part now ha or may hereafter acquire of, in, and to said premises, with the appurte- nances ; To have and to hold the same to the parties of the second part, as joint tenants (and not as tenants in common), with right of survivorship as such, and to their successors and assigns (said parties of the second part and their successors being hereby expressly authorized to convey, subject to the trusts herein expressed, the lands above described), upon the trusts and con- fidences hereinafter expressed, to wit: First, During the continuance of these trusts, the party of the third part and the parties of the second part, their successors and assigns, are hereby authorized to pay, without previous notice, all taxes, assessments, and liens now subsisting, or which may hereafter be imposed by national, state, county, city, or other authority, upon said premises, and on the money so borrowed as aforesaid, to whomsoever assessed, and all or any incumbrances now sub- sisting, or that may hereafter subsist thereon, which may in their judgment affect said premises or these trusts, at such time as in their judgment they may deem best ; or in their discretion, for the benefit and at the expense of said part of the first part, to contest the payment of any such taxes, assess- ments, liens, or incumbrances, or defend any suit or proceeding instituted for the enforcement thereof; and in like manner to prosecute or defend any suit or proceeding that they may consider proper to protect the title to said premises, and these trusts shall be and continue as security to the party of the third part, and their assigns, for the repayment, in gold coin of the United States, of the moneys so borrowed by the and the interest thereon, and of all amounts so paid out, and costs and expenses incurred as aforesaid, whether paid by the part of the second or third part, with interest on such payments at the rate of per cent, per month until final repayment. Secondly, In case the said shall well and truly pay, or cause to be paid at maturity, in gold coin as aforesaid, all sums of money so borrowed as aforesaid, and the interest thereon, and shall FORMS OF DEEDS. 497 upon demand repay or deposit all other moneys secured, or intended to be secured hereby, and also the reasonable expenses of this trust, then the par- ■ties of the second part, the survivor of them, their successors and assigns, shall reconvey all the estate in the premises aforesaid to them by this instru- ment granted unto heirs and assigns, at request and cost. Thirdly, If default shall be made in the payment of any of said sums of principal or interest, vi^hen due, in the manner stipulated in said promissory note, or in the reimbursement of any amounts herein provided to be paid, or of any interest thereon, then the said parties of the second part, or the sur- vivor of them, their successors or assigns, on application of the party of the third part, or their assigns, shall sell the above granted premises, or such part thereof as in their discretion they shall find it necessary to sell in order to accomplish the objects of these trusts, in the manner following, namely : They shall first publish the time and place of such sale, with a descrip- tion of the property to be sold, at least a week for weeks, in some newspaper published in the county of and may from time to time postpone such sale by publication ; and, on the day of sale so advertised, or to which such sale may be postponed, they may sell the property so advertised, or any portion thereof, at public auction, in any county where any part of said property may be situated, to the highest cash bidder ; and the holder or holders of said promissory note, their agent or assigns; may bid and purchase at such sale. And the part of the second part or assigns, shall establish as one of the conditions of such sale, that all bids and payments for said property shall be made in like gold coin as aforesaid, asd upon such sale shall make, execute, and after due payment made, shall deliver to the purchaser or purchasers, his or their heirs and assigns, a deed or deeds of grant, bargain, and sale, of the above granted premises, and out of the proceeds thereof shall pay : First, The expenses thereof, together with the reasonable expenses of this trust, including counsel fees of dollars, in gold coin, which shall become due upon any default made by the in any of the payments aforesaid. Second, All sums which may have been paid by the said or the part of the second part, successors or assigns, or the holders of the note aforesaid, and not reimbursed, and which may then be due, whether paid on account of incumbrances or insurance, as afore- said, or in the performance of any of the trusts herein created, and with whatever interest may have accrued thereon ; next the amount due and unpaid on said promissory note, with whatever interest may have accrued thereon ; and lastly, the balance or surplus of such proceeds, if any, to said heirs or assigns. And in the event of a sale of said premises, or any part thereof, 32 498 DEEDS CONVEYING LAND. and the execution of a deed or deeds therefor, under these trusts, then the recitals therein of default and publication shall be conclusive proof of such default and of the due publication of such notice; and any such deed or deeds, with such recitals therein, shall be effectual and coi. elusive against the said part of the f.rst part, heirs or assigns, and all other persons ; and the receipt for the purchase-money contained in any deeds executed to the purchaser, as aforesaid, shall be a sufficient discharge to such pur- chaser from all obligation to see to the proper application of the purchase- money, according to the trusts aforesaid. In Witness Whereof, the said part of the first part ha hereunto set hand and seal the day and year first above written. (Sii^natiires.) (Seals.) Dufy Signed, Sealed, and Delivered in the presence of (136.) Trust Deed to SecuTO Payment of a Promissory Note, in use in Colorado. This Indenture, Made this day cf in the year of our Lord one thousand eight hundred and between {iiatne and oceiipation of grantor or grantors), ai the county of {residence) and State of Colorado, part of the first part; and {?tame and occupation of grantee or grantees) of the county of {residence) and State of Colorado, party of the second part, witnesseth, That Whereas, The said part of the second part, ha executed promissory note bearing even date herewith, for tha sum of dollars, payable to the order ol with interest thereon, from until paid, at the rate of per cent, per payable or to be counted as principal. And whereas, the said part of the first part desirous of secur- ing not only the prompt payment of said promissory note and the interest that may accrue thereon, in whose hands soever the same may be. Now therefore, the said part of the first, in consideration of the prem- ises and for the purpose aforesaid, and in the further consideration of one dollar to in hand paid by the said party of the second part, the receipt whereof is hereby confessed, ha and hereby do grant, bargain, sell, and convey unto the said party of the second part, in trust, forever, all the lands and premises situate in the county of and State of Colorado, known and described as follows, to wit : {here describe carefully the land or premises granted, as directed in Form 107.) To Eave and to Hold the same, together with all and singular the tenements, hereditaments, privileges, and appurtenances thereunto belong- ing, to the said party of the second part, or upon his failure to act, to his successor, in trust forever: In trust, nevertheless, that in case of default in FORMS OF DEEDS. 439 the payment of the said promissory note or any part thereof, or the interest thereon, according to the tenor and effect of said note or in case of the breach of any of the covenants or agreements herein mentioned, then on the application of the legal holder of said promissory note or either of them, to sell and dispose of the said premises, and all the right, title, benefit, and equity of redemption of the said part of the first part heirs and assigns therein, at public auction, at the in the county of a"d State of Colorado, or on said premises, or on any part thereof, as may be specified in the notice of Such sale, for the highest and best price the same will bring in cash, weeks' notice having been previously given of the time and place of such sale, by advertisement in any newspaper at that time published in said last-named county, and to make, execute, and deliver to the purchaser or purchasers at such sale, good and sufficient deed or deeds of conveyance for the premises sold ; and out of the proceeds or avails of such sale and the purchase-money paid thereon, after first paying all costs of advertising, sale, and conveyance, including the reasonable fees and commissions of said party of the second part, and all other expenses of this trust, including all moneys advanced for insurance, taxes, and other hens or assessments, with interest thereon, at per cent, per then to pay the principal of said note whether due and payable by the terms thereof or not, and interest due on said note up to the time of such sale, rendering the overplus (if any) unto the said part of the first part legal representatives or assigns, on reasonable request (and it shall not be obligatory upon the purchaser or purchasers at any such sale to see to the application of the purchase money); which sale or sales so made shall be a perpetual bar, both in law and equity, against the said part of the first part, heirs and assigns, and all other persons claiming the premises aforesaid, or any part thereof, by, from, through, or under said part of the first part, or any of them. And in case of any suit or proceeding at law or in equity wherein said party of the second part shall be made a party by reason of his trusteeship under this deed, he shall be allowed and paid his reasonable costs, charges, attorney's and sohcitor's fees, in such suit or proceeding by said part of the first part, and the same shall be a further charge and lien upon said premises under this deed, to be paid out of the proceeds of sale thereof, as aforesaid, with interest thereon at the rate of per cent. per if not otherwise paid by said part of the first part. And the said party of the second part, or his successor in trust, with or without re-advertising, is hereby authorized and empowered to postpone or adjourn said sale from time to time, or any length of time, at his discretion; and also to sell the said premises eji masse or in separate parcels, as he may prefer or think best. And the said for and heirs, executors, and administrators covenant and agree to and with the said party of the second part, and his successor in trust 500 DEEDS CONVEYING LAND. hereinafter named, that at the time of the ensealing and delivery of these presents well seized of said premises in fee-simple, and ha good right, full power, and lawful authority to grant, bargain, and sell the same in manner and form as aforesaid ; that the same are free and clear of all liens and incumbrances whatsoever. And the said part of the first part will in due season pay all taxes and assessments on said premises ; and at the request of the party of the second part will keep all buildings that may at any time be on said premises, during the continuance of said indebtedness, insured in such company or companies as the holder or holders of said note may from time to time direct; for such sum or sums as such company or companies will insure for, not to exceed the amount of said indebtedness, except at the option of said part of the first part, and will assign, with proper consent of the insurers, the policy or policies of insurance to said party of the second part, as further security for the indebtedness aforesaid. And in case of the refusal or neglect of said part of the first part, or either of them, thus to insure, or assign the policies of insurance, or to pay such taxes or assessments, said party of the second part, or his successor in trust, or the holder of said note or either of them, may procure such insurance, or pay such taxes or assess- ments, and all moneys thus paid, with interest thereon at per cent, per shall become so much additional indebtedness, secured by this deed of trust, and to be paid out of the proceeds of sale of the lands and premises aforesaid, if not otherwise paid by said part of the first part, and the said premises in the quiet and peaceable possession of the party of the second part or successor in trust against all and every other person lawfully claiming or to claim the whole, or any part thereof, the said part of the first part shall and will warrant and forever defend. And it is stipulated and agreed, that in case of default in any of said pay- ments of principal or interest, according to the tenor and effect of said prom- issory note aforesaid, or either of them, or any part thereof, or of a breach of any of the covenants or agreements herein by the part of the first part executors, administrators, or assigns, then and in that case,, the whole of said principal sum hereby secured, and the interest thereon to the time of sale, may at once, at the option of the legal holder thereof, become due and payable, and the said premises be sold in the manner and with the same effett as if the said indebtedness had matured. And it is further agreed and especially understood that in case of the death, resignation, removal, or absence from the of or refusal, or failure, or inability of said party of the second part to act, then shall be and hereby is appointed and made successor in trust of the said party of the second part, and in such event the said lands and premises shall become vested in such new trustee and all the power and authority by this indenture granted to the said party of the second part shall accrue to and be exercised by the said FORMS OF DEEDS. ^OI Uie same to all intents and purposes as if he had been made the party of the second part herein. In Witness Whereof, The said part of the first part ha hereunto set hand and seal the day and year first above written. {Signatures^ (Seals.) (Witness) State of Colorado, 1 [-SS. County of ) I, in and for said county, in the State aforesaid, do hereby certify that personally known to me as the person whose name subscribed to the annexed deed, appeared before me this day in person and acknowledged that signed, sealed, and delivered the said instrument of writing as free and voluntary act, for the uses and purposes therein set forth. Given under my hand and seal, this day of in the year of our Lord one thousand eight hundred and iSignattire) (137.) Deed of G-rant with Warranty against Claimants through the Grantor, in use in Delaware. This Indenture, made the day of in the year of our Lord one thousand eight hundred and between (name and occitpation of grantor), and his wife, of the county of and State of , cf the first part, and (name and occupation of the grantee), of the same county and State, of the second part, Witnesseth : that the said parties of the first part, for and in consideration of the sum of dollars, lawful money of the United States of America, to them well and truly paid, by the said party cf the second part, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, aliened, enfeoffed, released, conveyed, and confirmed, and by these presents doth grant, bargain, sell, aliene, enfeoff, release, convey, and confirm unto the said and to his heirs and assigns, all that lot, piece, or parcel of land, (here describe the premises granted as directed in Form loy). Together with all and singular the buildings, improvements, ways, woods, waters, water-courses, rights, liberties, privileges, hereditaments, and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and the reversions and remainders, rents, issues, and profits thereof ; and all the estate, right, title, interest, property, claim, and demand whatsoever of them, the said parties of the first part, in law, equity, or otherwise, howsoever, of, in, and to the same, and every part and parcel thereof. 503 DEEDS CONVEYING LAND. To Have and to Hold the said land, messuage, hereditaments, and prem- ises hereby granted or mentioned, or intended so to be, with the appurte- nances, unto tlie said , his heirs and assigns, to and for tlie only proper use and behoof of the said , his heirs and assigns, forever, and the sj.id {here insert the names of the grantor and his un/e), {or themselves, their heirs, executors, and adminis- trators, do by these presents covenant, grant, and agree to and with the said , his heirs and assigns, that they, the said , and their heirs, all and singular, the hereditaments and premises hereinbe- fore described and granted or mentioned, or intended so to be, with the appurtenances, unto the said , his heirs and assigns, against them, the said , their heirs, and against all and every other person or persons whomsoever, lawfully claiming or to claim the same or any part thereof, through, by, from, or under them, shall and will by these presents warrant and forever defend. In Witness Whereof, .The said have hereunto set their hands and seals. Dated the day and year first above written. {Signatures.) {Seals.) Sealed atid Delivered in the Presence of % Received, the day of the date of this indenture, of the above named , full satisfaction for the consideration money. {Signature) ( Witness at signing) \ mentioned. (138.) Brief Quitclaim Deed in use in Indiana. This Indenture Witnesseth, That I {name and occiipaiion of the grantor) of county, in Ihe State of release and quitclaim to {name and occupation of the grantee), of county, in the State of for the sum of dollars, the following real estate in county, in the State of Indiana, to wit : {here describe the land or premises granted, carefully, as directed in Form 107). In Witness Whereof, The said ha .hereunto set hand and seal , this day of iS Executed in the Presence of {Signatures.) {Seals.) ■ ss. State of Indiana, ^ \' County. ) Before me, , a in and for said county, this day of 18 , acknowledged the execution of (he annexed deed. IVitJiess my hand and seal. {Signature) {Seal) FORMS OF DEEDS. 503 (139.) Brief Q-uitclaim Deed in use in Nebraska. Know all Men by these Presents, That I {or we) (jiajiie, residence, and occupation of grantor or grantors), in consideration of dollars, in liand paid, do hereby grant, sell, remise, release, and forever quitclaim, unto (jtaine, residence, and occupation of the grantee or grant- ees), the following described real estate, situate in the county of and State of (Jiere describe the land or •premises granted, substantially as directed i?i Form 107). Together with all the tenements, hereditaments, and appurtenances to the same belonging, and all the estate, right, title, interest, dower, claim, or demand whatsoever, of the said of, in, and to the same, or any part thereof. To Have and to Hold the above-described premises, with the appurte- nances, unto the said and to heirs and assigns for- ever. Signed this day of A. D. eighteen hundred and In Presence of The State of Nebraska, ) (Signatures.) [Seals.) rSS, County. ) On this day of A.D. eighteen hundred and , before me, a Notary Public, in and for said count}', person- ally came the above-named who personally known to me to be the identical person whose name affixed to the above deed as grantor , and acknowledged the instrument to be voluntary act and deed. Witness my hand and notarial seal the date aforesaid. {Signature.) Notary Public. (140.) Quitclaim Deed in use in Delaware. Know all Men by these Presents, That I {name, resi- dence, and occupation of grantor), for and in consideration of the sum of to me in hand paid, or secured to be paid by {name, residence, and occupation of grantee), the receipt whereof is hereby acknowledged, have remised, released, and quitclaimed, and by these pres- ents do remise, release, and quitclaim unto the said and to his heirs and assigns, forever, all that lot, piece, or parcel of land, {here describe the land or premises quitclaimed, as directed in Form 107). Together with all and singular the hereditaments and appurtenances 504 DEEDS CONVEYING LAND. thereto belonging or in anywise appertaining, and the reversions, remainders, rents, issues, and profits thereof ; and all the estate, right, title, interest, claim, or demand whatsoever of me the said either in law or equity, of, in, and to the above or aforesaid bargained premises. To Have and to Hold the same to the said and to his heirs and assigns forever. In "Witness Whereof, I have hereunto set my hand and seal the day of in the year of our Lord eighteen hundred and {Signature) {Seal) Signed, Sealed, and Delivered in the presence of (141.) Quitclaim. Deed in use in Alabama. Be it Known, That {?iatHe and occupation of the grantor), of the county of State of for and in consideration of the sum of dollars, lawful money of the United States of America, to in hand paid, by {name, residence, and occiipation of the grantee,) at or before the seahng and dehvery of these presents, the receipt whereof is hereby acknowledged, ha remised, released, and forever quit- claimed, and by these presents do remise, release, and forever quitclaim unto the said {the grantee), in full and actual possession now being and to heirs and assigns forever, all and singular the estate, right, title, interest, use, trust, property, claim, and demand whatsoever, at law as well as in equity, in possession as well as in expectancy of, in, to, or out of all and singular the following described premises. That is to say, {here describe with sufficient care the land or premises gratited, as de- scribed in Form 107). To Have and to Hold the said released premises unto the said {the grantee) heirs and assigns, to own proper use, benefit, and behoof for ever, so that neither the said {the grantor), heirs or assigns, nor any other person or persons in trust for or in name or names, or in the name, right, or stead of any of them, shall or will, can or may, by any ways or means whatever, hereafter have, claim, challenge, or demand any right, title, interest, or estate, of, in, to, or out of the said premises above described and hereby released, but that the said heirs and assigns, each and every of them, from all estate, right, title, interest, property, claim, and demand whatsoever of, in, to, or out of the said premi- ses, or any part thereof, are, is, and shall be, by these presents, forever excluded and debarred. In "Witness Whereof, The said ha hereunto set hand and seal this day of in the year of our Lord one thousand eight hundred and {Signature) {Seal) Sealed, Signed, and Delivered in the Presence of FORMS OF DEEDS. SOS State of Alabama, ■) [•ss. County. ) I, hereby certify that whose name signed to the foregoing conveyance, and who known to me, acknowl- edged before me, on this day, tliat being informed of the contents of the con- veyance, he executed the same voluntarily on the day the same bears date Given under my hand and seal, this day of A.D. i8. {Signature.) (143.) Warranty Deed in use in New York. This Indenture, Made the day of in the year one thousand eight hundred and between (name, residence, and occupation of the grantor) of the first part, and {name, residence, and occupation of the grantee) of the second part, witness- eth, that the said part of the first part, for and in consideration of the sum of lawful money of the United States, to in hand paid by the said part of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the said part of the second part, heirs, executors, and administrators, forever released and discharged from the same, by these presents, ha granted, bargained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents do grant, bargain, sell, aliene, remise, release, convey, and confirm, unto the said part of the second part, and to heirs and assigns forever, all {Jiere describe the premises granted as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of tlie said part of the first part, of, in, and to the same, and every part and parcel thereof, with the appurtenances. To Have and to Hold the above granted, bargained, and described premises, with the appurtenances, unto the said part of the second part heirs and assigns, to their own proper use, benefit, and behoof forever. And the said for heirs, executors, and administrators, do covenant, grant, and agree to and with the said part of the second part, heirs and assigns, that the said at the time of the sealing and delivery of these presents, lawfully seized in of a good, absolute, and indefeasible estate of inheritance in fee-simple of and in all and singular the above granted and described premises, with the appurtenances and ha good right, full power, and lawful authority to 5o6 DEEDS CONVEYING LAND. grant, bargain, sell, and convey the same in manner aforesaid: And that the said part of the second part, heirs and assigns, shall and may at all times hereafter, peaceably and quietly have, hold, use, occupy, possess, and enjoy the above granted premises, and every part and parcel thereof, with the appurtenances, -without any let, suit, trouble, molestation, eviction, or disturbance of the said part of the first part, heirs or assigns, or of any other person or persons lawfully claiming or to claim the same : And that the same now are free, clear, discharged, and unencumbered, of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and encumbrances of what nature or kind soever. And also, that the said part of the first part, and heirs, and all and every person or persons whomsoever lawfully or equitably deriving any estate, right, title, or interest, of, in, or to the hereinbefore granted premises, by, from, under, or in trust for them, shall and will, at any time or times hereafter, upon the reasonable request, and at the proper costs and charges in the law, of the said part of the second part, heirs and assigns, make, do, and execute, or cause to be made, done, and executed, all and every such further and other lawful and reason- able acts, conveyances, and assurances in the law, for the better and more effectually vesting and confirming the premises hereby granted or so intended to be, in and to the said part of the second part, heirs and assigns forever, as by the said part of the second part, heirs or assigns, or their counsel learned in the law, shall be reasonably advised or required: And the said heirs, the above described and hereby granted and released premises, and every part and parcel thereof, with the appurtenances, unto the said part of the second part, heirs and assigns, against the said part of the first part, and heirs, and against all and every person and. persons whomso- ever, lawfully claiming or to claim the same, shall and will warrant and by these presents forever defend. In "Witness "Whereof, the said part of the first part hereunto set hand and seal the day and year first above written. (And {name of the wife of gi'antor) signs and seals tliis deed in token of her relinquishment and release to the party of the second part of all her right of dower in the jDremises hereby granted) {Signature of grantor^ (Seal.) {Signature of grantor's wife.) {Seal.) Sealed and Delivered in the Presence of State of > OF > ss. County of ) On the day of in the year one thousand eight hundred and before me personally came to be the individual described in, and who executed the foregoing instru- ment, and acknowledged that he executed the same. {Signature^ FORMS OF DEEDS. 507 (143.) Bond for a Deed. Know all Men by tlieso Presents, That I, {name of the obligor) of the County of and State of am held and firmly bound to {tiame of the obligee) of the County of and State of in the sum of dollars, to be paid to said {name of obligee) or his executors, administrators, or assigns, to the payment whereof I bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal and dated the day of A.D. 18 The Condition of this obligation is that if I the said {name of the obligor) upon payment of dollars, and interest thereon, as agreed and promised by said {na?ne of the obligee) agreeably to his promissory note, dated 18 , and made payable as follows, to wit {here set forth the note. If there be ?to note from the obligee, omit this part), shall convey to said {name of the obligee) or his heirs, executors, or assigns, forever, the following described real estate, situate, lying, and being in the County of and State of to wit {here describe carefully the lattd or premises granted, as directed in Form 107), deed or deeds in common form, duly executed and acknowledged, and in the meantime shall permit said {name of the obligee) to occupy and improve said premises for his own use, then this obligation shall be void, otherwise it shall remain in full force. {Signature^ {Seal.) Signed, Sealed, and Delivered in the Presence of State of County of Be it Eeraembered, That on this day of A.D. 18 , before the undersigned, a Notary Public (or other magistrate), within and for the County of aforesaid, personally came {name of the obligor) who is personally known to me to be the same person whose name is subscribed to the foregoing instrument of writing, as the obligor therein, and acknowledged the same to be his free act and deed, for the purposes therein mentioned. In. Testimony Wliereof, I have hereunto set my hand and affixed my official seal at my office in the day and year first abova written. {Signature.) {Seal.) (144.) Contract for Sale of Land, with Penal Obligation. Articles of Agreement, Made and concluded this daj of A.D. 18 , between of the County of 5o8 DEEDS CONVEYING LAND. and State of of the one part, and of the County of and State of of the other part, as follows : Tho caid {iiame of tJie party of the first part) for the considera- tion hereinafter mentioned, does for himself and for his heirs, covenant and agree with the said {name of the party of the second part) and his heirs and assigns, by these presents, that he, the said party of the first part, shall an:l will, on or before the day of A.D. i8 , at the proper costs and charges of the said party of the first part (or of the second part, if that is agreed), his heirs and assigns, by good and lawful deed or deeds, well and sufficiently grant, convey, and assure unto the said party of the second part, his heirs and assigns, in fee-simple, clear of all incumbrances, all that certain tract cr parcel of land lying, being, and situate in the County of State of as follows, to wit ijiere describe carefully the land or premises granted, as directed in Form 107). In Consideration Whereof, The said Qiere the name of the party of the second part), for himself and his heirs, does covenant and agree with the said party of the first part, and with his heirs and assigns, by those presents, that he, the said party of the second part, and his heirs, or some of them, shall and will on the execution and delivery of the said deed or deeds as aforesaid, well and truly pay, or cause to be paid, unto the said party of the first part, or his heirs and assigns, the sum of dollars, in the manner following, to wit {set forth the terms and times of payment as agreed on). And upon {set forth the time agreed on) ih^ said party of the first part shall give to the said party of the second part possession of the afore- said premises. And for the true performance of all and every the covenants and agree- ments aforesaid, each of the said parlies bindelh himself, his heirs, executors, and administrators unto the other, his executors, administrators, and assigns, in the penal sum of dollars. In V/itness Whereof, The said parties have hereunto set their hands and seals the day and year first above written. {Signatures.) {Seals.) Signed, Sealed, and Delivered in Presence of us, {If it is intended that this contract should be recorded, as in almost all cases it should be, an acknowledgment by both parties should follow ; and the record should be like that in the next Eon/i.) (145.) Power of Attorney to Sell Lands. Know all Men by these Presents, That I, tlie undersigned {name of the selling party) of the town {or city) of , Count)' of , and State of , have this day made, constituted, and appointed, and do by these presents make, constilute, and appoint {?iame of FORMS OF DEEDS. 509 attorney) of the town {or city) of , in the County of , and State of ,, my true and lawful attorney, for me and in my name to sell and dispose of, absolutely, in fee-simple, the follow- ing described lot, tract, or parcel of land, or any part thereof, situate, lying, and being in the County of and State aforesaid, to wit Qiere describe carefully the land or premises granted, as directed in Form 107) for such price or sum of money, and to such person or persons as he shall think fit and convenient ; and also for me and in my name, and as my act and deed, to sign, execute, acknowledge, and deliver such deed or deeds, and conveyance or conveyances, for the absolute sale and disposal thereof, or of any part thereof, with such cl.iuse or clauses, covenant or covenants, and agreement or agreements, to be therein contained, as my said attorney shall think fit and expedient ; hereby ratifying and confirming all such deeds, conveyances, bargains, and sales which shall at any time hereafter be made by said attorney touching or concerning the premises. la Testimony Whereof, I have hereunto set my hand and seal, on this day of , A.D. 18 {Signature.) {Seal,) State of , ') >-ss. County of , ) Be it Remembered, That on this day A.D. 18 , before the undersigned, a notary public {or other magistrate) within and for the County of and State of , personally came {the name of the principal), who is personally known to me to be the same person whose name is subscribed to the foregoing instrument of writing, and acknowledged the same to be his free act and deed, for the purposes therein mentioned. In "Witness Whereof, I have hereunto set my hand and aflSxed my official seal, at my office in the day and year first above written. {Signature^ {Seal.) State of ) V ss. I^f THE recorder's office. County of ) I^ , Clerk of the Circuit Court, and ex-oificio Recorder of said county {or -whoever else is the recording officer), do hereby certify that the within instrument of writing was, on the day of AD. 18 , duly filed for record in this office, and is recorded in the Records of this office in Book at page In Witness Whereof, I have hereunto set my hand and affixed the seal of said court, at this da,y of A. D. 18 . ^ ^ Recorder. Per Deputy. 5 10 DEEDS CONVEYING LAND. (146.) Trust Deed for the Benefit of a "Wife, or some other Person. This Deed, Made and entered into this day of eighteen hundred and by and between {jiamc, resi- dence, and occupation of the grantor) parly of the first part, and {the name, j-esidence, and occupation of the trustee) party of the second part, and (name of the wife or any person who is to have the benefit of ike trust) parly of the third part, witnesseth : That the said party of the first part, in consideration of the sum of dollars, to him in hand paid by the said party of the third part, the receipt of which is hereby acknowledged, and the further sum of one dollar to him paid by the said party of the second part, the receipt of which is hereby also ac- knowledged, do, by th'ese presents, give, grant, se'l, transfer, convey, and assign unto the said party of the second part, the following described tract or parcel of land, that is to say (^here describe the premises carefully, as di- rected in Form 107). To Ilave and to Hold the Same, AVith all the rights, privileges, and appurtenances thereto belonging, or in any wise appertaining unto him, the s^id party of the second part, his heirs and assigns forever : In trust, how- ever, to and for the sole and separate use, benefit, and behoof of wife of (or the name of the son or daiigjiter, or any other person, may be stibstituted for that of the wife) and the said party of the second part hereby covenants and agrees to and with the said the party of the third part, that he will suffer and permit her {or him), without let or molestation, to have, hold, use, occupy, and enjoy the aforesaid premises, wilh all the rents, issues, profits, and pro- ceeds arising therefrom, whether from sale or lease, for her own sole use and benefit, separate and apart from her said husband, and wholly free from his control and interference, debts and liabilities, courtesy, and all other in- terests whatsoever; and that he will at any and all times hereafter, at the request and direction of the said {name of the i) arty of the third part) expressed in writing, signed by her {or him) or by her {or his) authority, bargain, sell, mortgage, convey, lease, rent, convey by deed of trust for any purpose, or otherwise dispose of said premises, or any part thereof, to do which full power is hereby given, and will pay over the rents, issues, profits, and proceeds thereof to the said party of the third part, and that he will, at the death of the said party of the third part, convey or dispose of the said premises, or such part thereof as may then be held by him under this deed, and all profits and proceeds thereof, in such manner, to such person or per- sons, and at such time or times, as the said party of the third part shall, by her {or his) last will and testament, or any other writing signed by her, or by her authority, direct or appoint ; and in default of such appointment, that he will convey such premises to {here state luhat it is intended shall be done with the property at the death of the party of the third part if he or she die FORMS OF DEEDS. 511 intestate). And the snid party of (lie third part shall have power at any time hereafter, whenever she (or he) shall from any cause deem it necessary or expedient, by an instrument in writing under her (or his) hand and seal, and by her (or hint) acknowledged, to nominate and appoint a trustee or trustees, in the place and stead of the party of the second part above named ; which trustee or trustees, or the survivor of them, or the heirs of such survivor, shall hold the said real estate upon the same trust as above recited; and upon the nomination and appointment of such new trustees, the estate in trust hereby vested in said party of the second part shall thereby be fully transferred and vested in the trustee or trustees so appointed by the said party of the third part. And said party of the first part hereby covenants to warrant and defend the title to the said real estate against the lawful claims of all persons whomsoever, to the said parties of the second and third parts, their heirs and assigns. And the said party of the second part cove- nants faithfully to perform and fulfil the trust herein created. In Testimony 'Whsreof, The said parties have hereunto set their hands and seals the day and year first above written. (Signatures ) (Seals.) The State of ^ |- ss. County of ) Be it Semembered, That on the day of eighteen hundred and , before me, the undersigned came (the persons who execute the instrument) who are personally Icnown to me to be the same persons whose names are subscribed to the foregoing instrument of writing, as parties thereto, and severally acknowledged the same to be their free act and deed for the purposes therein mentioned. (Signature^ (147.) Trust Deed to Secure Payment of a Note without Releasb of Homestead or Dower. This Deed, Made and entered into this day of eighteen hundred and by and between (name and occiipation of the grantor who is the debtor) of the County of State of , party of the first part, and (name and occttpation of the trustee) ai the County of State of party of the second part, and (naine and occupation of the creditor for whose beneft the deed is made) of the County of State of party of the third part : Witnesseth, That the said party of the first part, in consideration of the debt and trust hereinafter mentioned and created, and of the sum of one dollar to him paid by the said party of the second part, the receipt of which 512 DEEDS CONVEYING LAND. is hereby acknowledged, does by these presents grant, bargain, and sell, convey and confirm unto the Said party of the second part, the following described real estate, situate, lying and being in the County of and State of , to wit {here describe carefully the land or pre?nises granted, as described in Form 107.) To Have and to Hold The same, with the appurtenances, to the party of the second part, and to his successor or successors in this trust, and to him and his heirs, and his and their grantees and assigns forever. In Trust, However, for the following purposes : Whereas the said party of the first part has this day made, executed, and delivered to the said party of the third part, his promissory note , of even date herewith, by which he promises to pay to the said {name of the creditor) or order, for value received, y-jj dollars, in {the days or months -when the note is payable). Now Therefore, If the said party of the first part, or any one for him, shall well and truly pay off and discharge the debt and interest expressed in the said note and every part thereof, when the same becomes due and pay- able according to the true tenor, date, and effect of said note , then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of the said party of the first part ; but, should the said first party fail or refuse to pay the said debt, or the said interest, or any part thereof, when the same or any part thereof shall become due and payable, according to the true tenor, date, and effect of said note , then the whole shall be- come due and payable, and this deed shall remain in force ; and the said party of the second part, or in case of his absence, death, refusal to act, or disability in any wise, the (then) acting sheriff of County, , at the request of the legal holder of the said note , may proceed to sell the property hereinbefore described, or any part thereof, at public vendue, to the highest bidder, at in the of County, , for cash, first giving days' public notice of the time, terms, and place of sale, and of the property to be sold, by advertisement in some newspaper printed and published in the of , and upon such sale shall execute and deliver a deed in fee-simple of the property sold to the pur- chaser or purchasers thereof, and receive the proceeds of said sale ; and any statement of facts or recital by the said trustee, in relation to the non-pay- ment of the money secured to be paid, the advertisement, sale, receipt of the money, and the execution of the deed to the purchaser, shall be received as prijnd facie evidence of such fact ; and such trustee shall, out of the pro- ceeds of said sale, pay, first, the cost and expenses of executing this trust, including legal compensation to the trustee for his services, and next shall apply the proceeds remaining over to the payment of said debt and interest, or so much thereof as remains unpaid, and the remainder, if any, shall be paid to the said party of the first part, or his legal representatives. And the said party of the second part covenants faithfully to perform and fulfil the FORMS OF DEEDS. 513 trust herein created, not being liable or responsible for any mischance occa- sioned by others. In Witness Whereof, The said parties have hereunto set their hands and seals the day and year first above written. (Signature of party of the first part^ {Seal) {Signature of party of the second part) {Seal) {Signature of party of the third part) {Seal) Signed, Sealed, and Delivered in Presence of us State of ^ >-ss. County of ) Be it Kemembered, That on this day of A. D. 18 , before the undersigned, a within and for the County of and State of , personally came {names of all the parties exec7iting the deed) who are personally known to me to be the same persons whose names are subscribed to the foregoing instrument of writing, as parties thereto, and acknowledged that they executed the same for the uses and purposes therein mentioned. In Testimony Whereof, I have hereto set my hand and atExed my offi- cial seal at my office in the day and year first above written. {Signature) {Seal) (148.) Deed of Trust to Secure a Debt; Fuller Form, and with Release of Dower. This Deed, Made and entered into this day of eighteen hundred and , by and between {name and occupation of the debtor who is grantor) and {name of the wife of the grantor) of {residence) parties of the first part, and {name of the grantees who are the trustees) of (r«z(/i?«c^) parties of the second part, and {name, residence, and occupation of the creditor for whose benefit the trust is created) of party of the third part, wit- nesseth, that the said parties of the first part, in consideration of the debt and trust hereinafter mentioned and created, and of the sum of one dollar to them paid by the said parties of the second part, the receipt of which is hereby acknowledged, do by these presents grant, bargain, and sell, convey and confirm, unto the said parties of the second part, the following described real estate, to wit : {here describe carefully the land or ■premises granted, by metes and bounds, as directed in Form 107.) To Have and to Hold the same, with the appurtenances, to the said par- ties of the second part, and to the survivor of them, and to their successor hereinafter designated, and to the assigns of the said parties of the second part, or of said survivor, or of said successor and his heirs forever. In Trust, however, for the following purpose : Whereas the said 33 514 DEEDS CONVEYING LAND. {name of the grantor) {here describe the debt, and if a promissory note is given, describe that, or set forth a copy of it) and has also agreed and covenanted to and with the said party of the third part, and his indorsees or assignees, to cause all taxes and assessments, general and special, to be paid within the times required by law, whenever imposed upon said property, and has also further covenanted and agreed to and with said party of the third part, his indorsees or assignees, that he will keep the improvements upon said property constantly insured in some good and responsible insurance office or offices, to be approved by said party of the third part, his indorsees or assignees, in a sum not less than dollars, until said notes are [or note is) fully paid, and will assign the policy or policies of insur- ance to said party of the third part, his indorsees or assignees, with full power to demand, receive, and collect any and all moneys accruing under said insurance, and the same to apply to the payment of said notes and the interest that may accrue thereon, unless otherwise paid, when the same become due, and has also covenanted and agreed to and with said party o' the third part, his indorsees or assignees, that there shall not, at any tima while said notes remain unpaid, be any mechanics' liens filed or taken upon the real estate herein described, or upon the buildings which now are, o' may hereafter be, erected upon said real estate, and that should said party of the first part fail or neglect to pay said taxes, when the same are by law due and payable, or fail or neglect to effect insurance and assign the policy or policies as above provided, or fail or neglect to keep said real estate frea from mechanics' liens, the said party of the third part, his indorsees or assignees, may, at his option, consider the notes above mentioned and described, as having each and all become due and payable, though not then due by the tenor and effect thereof, and may require the said parties of the second part, or the survivor of them, or their successor in trust, to sell the property above described as hereinafter provided, or may pay said taxes, or the premium for such insurance, or the amount of said mechanics' liens, and the amount or amounts so paid, together with interest thereon, at the rate of (ten) per cent, per annum, shall be taken and considered as a part of the amount secured hereby, and to be paid and refunded out of the proceeds of sale, should such sale be made, as hereinafter provided. Now, if the said notes be well and truly paid, as the same severally become due and payable, according to the tenor and effect of said notes, and each of them, and if the said covenants and agreements in regard to taxes, insurance, and mechanics' hens be faithfully kept and performed, and all moneys paid by said third party, his indorsees or assignees, on account of said taxes, insurance, and mechanics' liens, are refunded, with the interest thereon, as above provided, then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of the said parties of the first part; but should default be made in the payment of the said notes, or either of them, or any part of either of them, or of the interest that may accrue thereon, or any part thereof, as the same severally become due and FORMS OF DEEDS. 5 15 payable, or if the said parties of the first part fail or neglect to pay said taxes, when due and payable, or to insure the buildings on said property, or to keep the same free from mechanics' liens, as provided in the foregoing covenants and agreements, or to refund to said party of the third part, his indorsees or assignees, the amount paid by him or them for said taxes, insur- ance, or mechanics' liens, with interest thereon, as above provided, then this deed shall remain in force, and the said parties of the second part, or either of them, or the survivor of them, or in the event of the death of both of them, or absence from this State, or their refusal to act, or other disqualification for the performance of the duties of this trust, then, at the request of the holder of said notes, the sheriff of the county of for the time being (who shall thereupon become the successor of said trustees, and of the sur- vivor of them, to the title of said property, and the same become vested in him, in trust for the purposes and objects of these presents, with all the powers, duties, and obligations thereof), may proceed to sell said described property, or any part thereof, at public vendue, to the highest bidder, for cash, at the {state the place of sale) first giving twenty days' public notice of the time, terms, and place of said sale, and the property to be sold, by advertisement in some newspaper printed in the English language, and published in the county of and upon such sale, the said parties of the second part, or either of them, or the survivor of them, or their suc- cessor in trust, the sheriff of said county, as the case may be, shall execute and deliver a deed or deeds, in fee-simple, of the property sold, to the pur- chaser or purchasers thereof (a recital wherein of the request of the holder of said notes that they should proceed to sell, of the publication of said notice, and in case of sale by the sheriff of said county, of the happening of any or either of the events making him successor in this trust, shall be received in all courts of law or equity, and to all intents and purposes, as full and sufficient proof thereof), and shall receive the proceeds of said sale, out of which shall be paid, first, the cost and expenses of executing this trust, including compensation to said trustee, or said sheriff, for their or his services, next the amount paid by said party of the third part, or his indorsees or assignees for taxes, insurance, or mechanics' liens, with (ten) per cent, per annum interest thereon, from the date of the payment thereof, and next, the amount remaining unpaid upon the principal note above described, together with all the interest notes then due, and so much of the interest note, next falling due, as may be necessary to satisfy the interest on said principal note at the rate of per cent, per annum from the date when the preceding interest note became due, up to the day of sale, it being distinctly understood and agreed between the parties hereto, that the failure to pay any one of said notes, principal or interest, when due and payable, shall cause the principal note to become immediately due and payable, though not then due by the terms, tenor, or effect thereof, and the remainder, if any, shall be paid to the said parties of the first part or their legal representatives. And the said parties of the second part covenant faithfully to perform and fulfil the trust herein created. 5i6 DEEDS CONVEYING LAND. In Witness "Whereof, The said parties have hereunto set their hands and seals the day and year first above written. (Signature of grantor) ' (Seal.) (Signature of grantor^ s wife) (Seal.) (Signature of trustee.) (Se.il.) (Signature cf other trustee) (Seal.) (Signature of creditor.) (Seal.) Signed, Sealed, and Delivered in Presence of State of ) )■ ss. County of ) Be it Remembered, That on this day of eighteen hundred and before me, the undersigned, came (name of the parties who execute the deed) who are personally known to me to be the same persons whose names are subscribed to the foregoing instrument of writing, as parties thereto, and acknowledged the same to be their act and deed for the purposes therein mentioned. And the said having been by me first made acquainted with the contents of said instrument, on an examination separate and apart from her husband, acknowledged that she executed the same freely and without compulsion or undue influence of her said husband. In Testimony Whereof, I have hereunto set my hand and seal of office the day and year first above written. (149.) Trust Deed to Secure a Note, Shorter Form, but with Warranty, and Release of Homestead and Dower. This Indenture Witnesseth, That (name, residence, and occupation of grantor) and (trmne of the "wife of grantor) yi\it of the grantor herein, in consideration of the indebtedness hereinafter mentioned, and one dollar ($i) to them paid by (name, residence, and occupation of the trustee) grantee , the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, remise, release, and convey unto the said grantee , the follow- ing described lot , piece , or parcel of land, situate in the county of and State of to wit : (here describe carefully the land or premises granted, as directed in Form 107). To Have and to Hold the same, with all the privileges thereunto or in anywise appertaining, and all the estate, right, title, interest, claim, or demand in and to the same, either now or which may be hereafter acquired, unto the said grantee, his heirs and assigns. In trust, nevertheless, for the following purposes : Whereas, The said (name of the grantor) grantor herein, is justly indebted upon a certain promissory note, bearing even date herewith, pay- able to the order of (here describe the note) FORMS OF DEEDS. 517 Now, in case of default in the payment of said note, or any part thereof, or the interest accruing thereon, according to the tenor and effect thereof, or in the payment of any taxes or assessments, ordinary or special, which may be levied or assessed against said premises during the continuance hereof, on the application of the legal holders of the said note, the said grantee (full power being hereby given), or his legal representatives, after having advertised such sale days in a newspaper published in or by posting up written or printed notices in four (4) public places in the county where said premises are situate (personal notice being hereby expressly waived), shall sell the said premises, or any part thereof, and all the riglit and equity of redemption of the said grantor, or Iiis heirs, executors, administrators, or assigns therein, at public vendue, to the highest bidder for cash, at at the time appointed in the said advertisement, or may adjourn the sale from time to time at discretion and as the attorney of said grantor, for such purpose hereby constituted irre- vocable, or in the name of the said grantee or his legal representatives, shall execute and deliver to the purchaser or purchasers thereof, deeds for the conveyance in fee of the premises sold, and shall apply the proceeds of sale (ist) to the payment of all advances made by the said party of the second part for taxes and assessments ; and expenses for advertising, selling, and con- veying as aforesaid, including attorney's fees, and (2d) the amount due on said note, (3d) rendering the overplus, if any there be, to the said grantor or legal representatives, at the office of the said grantee in and it shall not be the duty of the purchaser to see to the application of the purchase money. And the said {iiames of the grantor and of his wife) parties of the first part, hereby expressly waive, release, and relinquish unto the said party of the second part, the said grantee, his heirs, executors, administrators, and assigns, all riglit, title, claim, interest, and benefit whatever, in and to the above-described premises, and each and every part thereof, which is given by or results from all laws of this State pertaining to the exemption of home- steads : Provided, that the said grantor and his heirs and assigns may hold and enjoy said premises, and the rents, issues, and profits thereof, until default shall be made as aforesaid, and that when the said note and all expenses accruing hereby shall be fully paid, the said grantee or his legal representatives, shall reconvey all the estate acquired hereby in the said premises, or any part thereof, then remaining unsold, to (and at the cost of) the said grantor, or his heirs or assigns. And the said grantor covenants with the said grantee and with his legal representatives and assigns that he is seized in fee of the said premises, and has good right to convey the same in form aforesaid, that they are free from all liens or incumbrances of whatever name or nature, and that he will warrant and defend the same against all claims whatsoever, and will pay all taxes or assessments levied or assessed on the said premises, or any part thereof, during the continuance hereof, and pay the same ten days before the day of sale thereof. 5i8 DEEDS CONVEYING LAND. "Witness the hands and seals o£ the said {names of the grantor and his wifi;) ihis day of A.D. 18 . {Signature of grantor) {Seal.) {Signature of wife of grantor) {Seal.) In Presence of Stats op ^ ss. County. On the day of eighteen hundred and before me of the County of in the State of appeared {name of the grantor) personally known to me to be the real person whose name is subscribed to the foregoing deed of trust, as having executed the same, and then acknowledged the execution thereof as his free act and deed for the uses and purposes herein mentioned. And the said {itame of the wife of grantor) (who is personally known to me to be the same person who subscribed the said instrument of writing), having had the contents of the said instrument made known and fully explained to her, and she also by me being fully informed of her rights under the Homestead Laws of the State, and being by me examined, sepa- rate and apart from her said husband, did acknowledge said instrument to be her free act and deed ; that she executed the same, and rehnquished her dower in the lands and tenements therein mentioned, and also all her rights and advantages under and by virtue of all laws of this State relating to the exemption of homesteads, voluntarily and freely, and without the compul- sion of her husband, and that she does not wish to retract. Given under my hand and official seal, this day of A.D. iS . {Signatzire.) [Seal.) (150.) Deed from Trustees. This Deed, Made and entered into this day of A.D. eighteen hundred and by and between {names of trustees) party of the first part, and {name, residence, and occupation of grantee) party of the second part, witnesseth, that whereas {name of tJie party who conveyed the estate to the trustees) by deed dated the day of 18 , recorded in the Recorder's office of County, State of in book conveyed the property hereinafter described in trust to said {natne of trustees) to secure the payment of certain promissory notes in said deed described, and whereas {here describe ike non-payment or other default -which has authori::ed the sale by the trustees) and the party herein of the first part, at the request of the legal holder of said promissory notes acting in pursuance of the provisions of said deed of trust, and having first given days' public notice of the time, terms, and place of sale, and of the property to be sold, by an advertise- FORMS OF DEEDS. 519 ment inserted on the day of A.D. in the a daily newspaper printed in the city of and continued to the day of sale (as will appear by the copy of said advei» tisement and affidavit of publication thereof hereto annexed as a part of this deed) did proceed to sell the property described in said deed at public vendue to the highest bidder for cash at in the city of on the day of 18 , between the hours of ten o'clock in the morning and five o'clock in the afternoon of said day, when and where the same was struck off to {the name of the purchaser who is the grantee) as the highest and last bidder therefor, at the price and sum of dollars, full payment whereof is hereby acknowledged ; now, said party of the first part, by virtue of the proceedings aforesaid, and in consideration of the sum of dollars to him in hand paid by said party of the second part, does by these presents bargain, sell, and convey to said {ttame of the grantee) all the right, title, and interest (which by virtue of said trust deed and the pro- ceedings aforesaid he may or can bargain, convey, or sell) in and to the property described in said deed of trust, to wit {here describe the land or premises granted in the same way in which they are described in the deed of trust under which the trustees act.) To Have and to Hold the said described premises unto said {name of the purchaser) and unto his heirs and assigns forever. In "Witness Whereof, the said party of the first part has hereto set his hand and seal the day and year first herein above written. {Signatures) (Seals.) In Presence of State of >-ss. County. Be it Remembered, that on this day of A.D. 18 , before me, the undersigned, personally came who are to me personally known to be the same persons whose names are subscribed to the foregoing instrument of writing as parties thereto, and they acknowl- edged the same to be their act and deed for the purposes therein mentioned. {Signature) (151.) Deed of Master in Chancery. This Indenture, Made this day of A.D. 18 , between \^name of grantor) Master in Chancery, in and for the County of and State of , of the first part, and {name of grantee) of the second part, witnesseth : That whereas, at the term of the court of the said County of and State of , in the year of our Lord A.D. 18 , in a certain suit and proceedings in chancery, pending in said court, wherein were complainants, 520 DEEDS CONVEYING LAND. and were defendants, to obtain a decree for the sale of the proiDerty hereinafter described, and for other relief, it was ordered, adjudged, and decreed by the court, that iliere set forth the decree under which the sale IS viade) and the Master in Chancery, in and for the County of and State of was appointed to execute the said decree, and to make, execute, and deliver to the complainants a deed to the said premises as aforesaid, conveying to {iJie name, residence, and occupation of the grantees) all the interest and title of the defendant to said premises. Now, therefore, Know all Men by this Deed, That I, Master in Chancery as aforesaid, in consideration of one dollar, to me paid by the said party of the second part, the receipt whereof 1 acknowledge before the execution hereof, and by virtue of the decree aforesaid, have granted, bargained, and sold, and do hereby grant, bargain, and sell unto the said party of the second part, his heirs and assigns forever, the follow- ing-described real estate, lying in the County of and State of to wit {here describe carefully the land or premises granted, as directed in Form 107). To Have and to Hold the said premises, with all the appurtenances thereto belonging, unto the said party of the second part, his heirs and assigns forever. In Testimony "Whereof, The said Master in Chancery of County, in the State of , has hereto set his hand and seal the day and year first above written. In Presence of State of 'Signature) [Seal) ■ ss. County. ' I, clerk of the county court in and for the County of and State of , do hereby certify, that the above-named whose name appears signed to the foregoing deed is personally known to me to be the same person described therein, and acknowledged to me that, as master in chancery aforesaid, he executed the said deed freely for the uses and purposes therein mentioned. Given under my hand and official seal at this day of A.D. 18 . (Signature.) Clerk. {Seal.) (152.) Sheriff's Deed on Execution, in use in the "Western States. Whereas, {the name of the plaintiff in the suit in which the execu- tion issued) did at the term, A.D. eighteen hundred and of the court for the County cf in the State of , recover a judgment against (name of the defendant FORMS OF DEEDS. S2I in that suit) for the sum of and costs of suit, upon which judgment and execution was issued, dated on the day of A. D. eighteen hundred and directed to the sheriff of County, to execute, and by virtue of said execution {name of the sheriff) of then sheriff of said county, levied upon the lands hereinafter described, and the same were struck off and sold to {name of the purchaser at the sheriff'' s sale) he being the highest and best bidder therefor, and the time and place of the sale thereof having been duly adver- tised according to law. And the said (naine of the purchaser) having duly assigned his certificate of purchase to {name of the grantee) Now therefore, Know all by this Deed, That I, {name of the sheriff^ sheriff of said County of in consideration of the premises, have granted, bargained, and sold, and do hereby convey to the said {name of the grantee) his heirs and assigns, the following described tract of land, to wit {here describe carefully the land or premises granted, as directed in Form 107). To Have and to Hold the said described premises, with all the appurte- nances thereto belonging, to the said {najiie of the grantee) and his heirs and assigns forever. Witness my hand and seal this day of in the year of our Lord one thousand eight hundred and {Signature^ {Seal.) In Presence of Sheriff of County. State OF ,1 >ss. County of ) I, clerk of the court of County, do certify that sheriff of County, personally known to me to be the real person whose name is sub- scribed to the within annexed deed, this day acknowledged before me that he executed the said deed, as such sheriff, voluntarily and freely, for the use and purposes therein set forth. Given under my hand, and the seal of said court, this day of eighteen hundred and {Signature) Clerk. {Seal.) (153.) Sheriff's Deed, in use in New England. Know all Men by these Presents, That I {name of the deputy sheriff selling) of in the County of and State of , and a deputy sheriff under {nameofihe sheriff), Esq., sheriff of said county, having, on the day 522 DEEDS CONVEYING LAND. of in the year of our Lord one thousand eight hundred and , by virtue of a writ of execution, which was issued upon a judgment, recovered at the term of the court holden at within and for the County of on the in the year of our Lord eighteen hundred and , by {name of Ihe plaintiff in the suit) of in the County of against {name of the defendant in the S7iit) of in the County of for the sum of dollars and cents damage and costs of suit taxed at dollars and cents, seized and taken all the right in equity which the said had on the day of in the year of our Lord eighteen hundred and being the time when the same was attached on mesne process of redeeming the following-de- scribed mortgaged real estate, to wit : {here describe carefully the land or premises grafited, as directed in Form 107) and having on the day of last, being thirty days at least before the time of the sale hereinafter mentioned, given notice in writing to the said {navie of the defendant) of the time and place of sale, and having posted up notifications thereof in one public place in said town of and in one public place in each of the towns of and being two towns adjoining said town of and also having caused an advertisement of the time and place of sale, to be published three weeks successively, before the day of sale, ia the public newspaper called the printed at in said county of on the day of in the year of our Lord eighteen hundred and made sale of said right in equity of redemp- tion at public auction, to {name of the purchaser) oi in ; he being the highest bidder for the same, for the sum of dollars. Now, therefore, in consideration of said sum of dollars to me paid by the said {naine of the piirchaser) the receipt whereof I do hereby acknowledge, I have given, granted, bar- gained, and sold, and do, by these presents, give, grant, bargain, sell, and con- vey to the said {name of the purchaser) his heirs and assigns forever, all the right in equity which the said (name of the defendant) had of redeeming the aforesaid mortgaged real estate, at the time aforesaid To have and to hold the same to the said {name of purchaser) his heirs and assigns, to his and their use forever ; subject, however, to be redeemed agreeably to the law in such case made and provided. And I, the said {name of grantor) in my said capacity of deputy sheriff, do covenant with the said {name of purchaser) as aforesaid, that, in making said sale, and in every* thing concerning the same, I have complied with, and observed the rules and requisitions of the law for making sales of rights in equity to redeem real estate. But I do not warrant or defend to the said {name of the pur- chaser) that the said {name of the defendant) had any right, title, or interest in said estate at the time aforesaid. FORMS OF DEEDS. 523 In Witness "Whereof, I, the said in my said capacity ol deputy sheriff, have hereunto set my hand and seal this day of in the year of our Lord one thousand eight liundred and (Signature^ {Seal.) Signed, Sealed, and Delivered in Presence of ss. 18 . Tlien the above-named personally appeared, and acknowledged the above instrument by him signed, to be his free act and deed. Before me, Justice of the Peace. (154.) Sheriff's Tax Deed, in use in the "Western States. Know all Men by these Presents, That whereas, at the Term , A.D. 18 , of the Court of County, a judgment was obtained in said court, in favor of the State of against the following-described lot , piece , or parcel of land, for the sum herein specified, to wit, the sum of (here state in writing the a?nount of the tax); said sum being the whole amount of taxes, interest, and costs assessed upon said lot ; piece, or parcel of land, for the year 18 And whereas, on the day of A.D. 18 {name of the collector of taxes') then collector of taxes of the county afore- said, by virtue of a precept or order issued out of the Court of the county aforesaid, dated the day of A.D. i8 , and directed to the said as aforesaid, did expose at public sale, at the Court-House, in the county aforesaid, in conformity with all the requirements of the statutes in such case made and provided, the said lot , tract ,or parcel of land above described, for the satisfaction of the judgment so rendered, as aforesaid. And whereas, at the time and place aforesaid {name of the purchaser) of the County of and Stale of having offered to pay the afore- said sum, amounting to the sum of dollars and cents, for the {here state what part or portion of the land was sold) of said lot ; piece, or parcel of land, as follows, to wit, the sum of dollars cents, which was the least quantity of said lot , piece, or parcel of land bid for the said lot , tract , or parcel of land was stricken off to {name of the purchaser) at that price. And whereas, the said purchaser has now made and delivered to me an affidavit of having complied with all the requirements of the statute and constitution of the State of necessary to entitle said purchaser to a deed for the premises so sold to him as aforesaid; and whereas the said {?tatne of the purchaser) has duly assigned the cer- tificate of purchase of the land above described, unto {the name of the grantee): Now, therefore, I, sheriff of the county of for and in consideration of the said above-named sum, 524 DEEDS CONVEYING LAND. amounting to the sum of dollars and cents, paid to {the collector of taxes) of said county of by the said {the name of the purchaser) aX the time of the aforesaid sale, and in consideration of {the amount of costs and fees) -^-^-^ dollars to me paid by said {name of grantee) and by virtue of the statute in such case made and provided, have granted, bargained, and sold, and by these presents do grant, bargain, and sell unto the said {name of the grantee) his heirs and assigns, the premises so sold as aforesaid, situated in the County of and State of to wit {here describe carefully the land or premises granted, by metes and bounds, and C07itents or quantity, or boundary marks or monuments). To Have and to Hold unto him, the said {the name of the grantee) his heirs and assigns forever, subject, however, to all the rights of redemp- tion provided by law. In Witness Whereof, I sheriff as aforesaid, by vir- tue of the authority aforesaid, have hereunto subscribed my name and affixed my seal this day of A.D. i8 . {Seal) Sheriff of County. State of County of I, in and for said County and State, do certify that sheriff of said county, who is personally known to me to be the real person who executed and subscribed his name to the fore- going deed, appeared before me this day, and acknowledged that he had executed the same as such sheriff, freely and voluntarily, for the uses and purposes therein set forth. In attestation whereof, I have hereunto set my hand and attached the seal of our said court, at my office in in said County and State, this day of A.D. i8 {Signature) Clerk. {Seal.) (155.) Deed of Executor, in use in the Eastern States. Know all Men by these Presents, That whereas {name of the executor) in the County of and State of executor of the last will of {najne of the testator) late of deceased, by an order of the Court of Probate, held at within and for the County of on the day of in the year one thousand eight hundred and was licensed and empowered to sell and pass deeds to convey certain real estate of the said deceased ; and whereas, the said executor having given public notice of the intended sale, by causing notifications FORMS OF DEEDS. 525 thereof to be published once a week, for three successive weeks prior to the time of sale, in the newspaper called the printed at and having first taken the oath and given the bond by law in such cases required, did on the day of in the year one thousand eight hundred and pursuant to the order and notice aforesaid, sell by public auction the real estate of the said deceased hereinafter described, to {name, residence, and occupation of the purchaser) for the sum of dollars jjy he being the highest bidder therefor. Kow, therefore, Know ye, That I, the said executor as aforesaid, by virtue of the power and authority in me vested as afore- said, and in consideration of the aforesaid sum of dollars y^j paid by the said {name of the purchaser) the receipt whereof is hereby acknowledged, do, by these presents, give, grant, sell, and convey unto the said {here describe carefully the land or premises granted, by metes and bounds, and contents or quantity, or boundary marks or monuments, and refer to the deed of the land to the testator, under which he held it). To Have and to Hold the afore-granted premises, with all the privileges and appurtenances to the same belonging, to him the said {name of pur- chaser) and his heirs and assigns, to his and their use and behoof forever. And I the said {name of executor) for myself and my heirs, executors, and administrators, do hereby covenant with the said {natne of purchaser) and his heirs and assigns, that in pursuance of the order aforesaid, I gave public notice of the said intended sale, in manner aforesaid, and that I took the oath and gave the bond by law required, previous to fixing on the time 'and place of sale. In Witness Whereof, I, the said executor as aforesaid, have hereunto set my hand and seal this day of in the year of our Lord one thousand eight hundred and {Signature) {Seal) Signed, Sealed, and Delivered in presence of ss. A.D. 18 . Then personally appeared the above-named executor and acknowledged the foregoing instru- ment to be his free act and deed. Before me, Justice of the Peace. (166.) Deed of Executor, in use in the Middle 'States. This Indenture, Made the day of in the year one thousand eight hundred and between {name of executor) executor of the last will of {na7ne and residence of testator) of the first part, and {name, residence, and occupation of the purchaser, who is the grantee) of the second part, witnesseth, that 526 DEEDS CONVEYING LAND. the said party of the first part, by virtue of the power and authority to him given in and by the said last will and testament, and for and in consideration of the sum of lawful money of the United States of America, to him in hand paid at or before the ensealing and delivery of these presents, by the said party of the second part, the receipt whereof is hereby acknowledged, and the said party of the second part, his heirs, executors, and administrators, forever released and discharged from the same by these presents, have granted, bargained, sold, aliened, released, conveyed, and confirmed, and by these presents do grant, bargain, sell, aliene, release, convey, and confirm unto the said party of the second part, and his heirs and assigns forever, all (here describe carefully the land or premises granted, by nutes and bounds, and contents or quality, or boundary jnarks or monuments, and refer to the deed of the land to the testator, tinder which he held it) Together with all and singular the edifices, buildings, rights, members, privileges, advantages, hereditaments, and appurtenances to the same belong- ing, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also all the estate, right, title, interest, claim, and demand whatsoever, both in law and equity, which the said testator had in his lifetime, and at the time of his decease, and which the said party of the first part hath, by virtue of the said last will and testament, or otherwise, of, in, and to the same, and every part and parcel thereof, with the appurtenances : To have and to hold the said premises above mentioned and described, and hereby granted and conveyed, or intended so to be, with the appurtenances, unto the said party of the second part, and his heirs and assigns, to his and their only proper use, benefit, and behoof forever. And the said party of the first part, for himself and for his heirs, executors, and administrators, does for himself and for his heirs, executors, and administrators, covenant, grant, promise, and agree to and with the said party of the second part, and his heirs and assigns, that the said party of the second part, his heirs and assigns, shall and lawfully may from time to time, and at all times forever hereafter, peaceably and quietly have, hold, use, occupy, possess, and enjoy all and singular the said hereditaments and premises hereby granted and conveyed, or intended so to be, with their and every of their appurtenances, and receive and take the rents, issues, and profits thereof, to and for his and their own use and benefit, without any lawful let, suit, hindrance, molestation, interruption, or denial whatsoever, of, from, or by them the said party of the first part, his heirs or assigns ; or of, from, or by any other person or persons whomsoever lawfully claiming, or who shall or may lawfully claim hereafter, by, from, or under him, or by, from, or under his right, title, interest, or estate. And that free and clear, and freely and clearly discharged, acquitted, and exonerated, or otherwse well and sufficiently saved, defended, kept harmless, and indemnified by them, the said party of the first part, his heirs and assigns, of, from, and FORMS OF DEEDS. cay against all and all manner of former and other gifts, grants, bargains, sales, mortgages, judgments, and all other charges and incumbrances whatsoever, had, made, committed, executed, or done by him the said party of the first part, or by, through, or with his acts, deeds, means, consent, procurement, or privity. In "Witness Wliereof, the parties to these presents have hereunto inter- changeably set their hands and seals the day and year first above written. (SignatU7-e of party of the first part:) {Seal) {Signature of party of the second part.) {Seal.) Sealed and Delivered in the Presence of State of , '\ [•ss. County. ) This day personally appeared before the undersigned, {name atid office of the magistrate) within and for the county and State aforesaid, {name of the executor) executor of the estate of {name of deceased) deceased, who is per- sonally known to me to be the person whose name as such is subscribed to the foregoing deed, as having executed the same, and acknowledged that he had as such executor subscribed to the foregoing deed; as having executed the same and acknowledged that he had as such executor executed the same for the uses and purposes therein expressed. In Witness Whereof, I have hereunto set my hand and seal, at my office in said county, this day of A.D. iS {Signature) {Seal.) (168.) Deed of Administrator of Intestate. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and between {name and residence of administrator) administrator of the goods and estate of {na/ite of intestate) of who died intestate, party of the first part, and {name, residence, and occupation of the grantee) of the County of and State of party of the second part : Whereas, at the term, A.D. i8 of the court, within and for the County of and State of in a certain petition or cause therein pending, in which the said {itame of the grantor) administrator of the goods and estate of {name of the deceased) deceased, was petitioner, and {names of the dcfendatits -who are minor children of the deceased, and of the widow of deceased, and of the guardian of the minors) were defendants, the following order and decree were rendered, that is to say ; 528 DEEDS CONVEYING LAND. State of County. In Court Term, A.D. i8 {name of the administrator) administrator of the goods and estate of {name of deceased) deceased, vs. (naines of the defendants, who should be the widow and heirs of the deceased.) And now comes the petitioner by his solicitor and presents his petition herein, and it satisfactorily appearing to the court that the defendants have been duly served with summons herein by the sheriff of county, and that the defendants are non-residents of the State of and have been duly notified of this proceeding by publication as required by law, it is therefore ordered by the court, that the said defendants be called. And they, being three times solemnly called, came not, nor any one for them, but herein failed and made default ; which it ordered to beentered of record ; and it further appearing to the court that the said {names of difendants who are minors) are minors, and have a guardian, to wit, the said {naine of the gttardian). And afterwards the said {name of guardian) as such guardian comes and files his answer herein, neither admitting nor denying the allegations in said petition contained, but reserv- ing the right of said minor by requiring proof. And this cause having been brought on to be heard upon the petition herein taken as confessed by the answer of said guardian and the exhibits and proofs, and the testimony of {name of the witness or witnesses called in the case) witness duly sworn, who testified herein in open court, and it satisfactorily appearing to the court from the evidence that the said {name of the deceased) departed this life on or about the day of A.D. l8 , leaving {name of his widow) his widow and {name of his children) his children and only heirs at law; that the petitioner herein was duly appointed administrator of the goods and estate of said {name of deceased) deceased, and that letters of administration were duly granted to him by this court, bearing date on the day of A.D. i8 , and the court having ascertained that said petitioner as aforesaid has made a just and true account of the condition of the estate of said deceased to this court, and that the personal estate of said deceased is not sufficient for the payment of the debts of the said {nante of the deceased) deceased ; and the court having found the amount of the deficiency aforesaid to be the sum of dollars, besides interest and costs, and it further appearing to the court that the said {name of the deceased) died seized of the following described real estate, situate in the County of and State of , to wit : {he7'e describe carefully the land or premises granted, by metes and bounds, and contents or quantity, or boundary marks or monuments, and refer to the deed of the land to the deceased, under which he held it) and the court having ascertained that it will be necessary to sell the said real estate FORMS OF DEEDS. 529 to pay the deficiency aforesaid, with the expenses of administration now due and to accrue ; it is therefore ordered, adjudged, and decreed, that the said petitioner proceed, according to law, to advertise and make sale of the real estate above described, or as much thereof as may be necessary to pay the debts now due from said estate, and the costs of administration now due and to accrue. And it is ordered and decreed by the court, that said sale shall be made on the following terms, viz. : {here set forili the terms, place, time, and jimnner of the sale as prescribed in the decree) which terms shall be distinctly set forth in all the advertisements of said sale. It is further ordered that upon such a sale being made, that said {name of said administrator) shall make and execute to the purchaser or pur- chasers of said real estate, good and sufficient deed or deeds to convey the interest of said deceased therein at the time of his decease, and that said {name of the administrator) report his action in the premises with all con- venient speed. And it is further ordered, that his cause stand continued for said report. And Whereas, In pursuance of said order and decree, the said party of the first part did, on the day of A.D. 18 , between the hours of ten o'clock in the forenoon and five o'clock in the afternoon of such day, at {place of sale) expose to sale by public vendue, to the highest bidder, the lands and real estate so ordered to be sold, in said decree, having first given notice of the time, terms, and place of such sale, with a description of such lands and real estate, according to the terms and requirements of said order and decree, and of the statute regulating such sales, as will more fully and at large appear by the report of such sale, made by said party of the first part, as administrator as aforesaid, to the said court. And "Whereas, At such sale, the said party of the second part became the purchaser of the following described lands and real estate, being the highest bidder therefor, at the following price ; that is to say {here state •what part, or the whole, of the above-described lands were sold, and at what price). Now Therefore, This indenture witnesseth, that the said party of the first part, by virtue of the order and decree aforesaid, and in consideration of the premises, and for the further consideration of the sum of dollars, to him in hand paid by the said party of the second part, the receipt of which is hereby acknowledged, has granted, bargained, sold, and conveyed, and by these presents does grant, bargain, sell, and convey unto the said party of the second part, his heirs and assigns, the lands and real estate last above described as having been sold to the said party of the second part, to have and to hold the same with all the appurtenances thereunto belonging, or in anywise appertaining, to the only proper use, benefit, and behoof of the said party of the second part, and his heirs and assigns forever. And the said party of the first part, for the consideration aforesaid, covenants with the said party of the second part, and his heirs and assigns, that he has in all respects 34 S30 DEEDS CONVEYING LAND. complied wi:h llic order and decree aforesaid, and with the directions of the law generally in such case made and provided. In V/itncES V/hereof, The said party of the first part as administrator as aforesaid, has hereunto set his hand and seal the day and year first above written. (Signature?) {Seal.) Administrator of {name of deceased) as aforesaid. In Presence of State of ) >-ss. County. ) This day personally appeared before the undersigned, within and for the county and State aforesaid, executor of the estate of {?ia?ne of deceased) deceased, who is personally known to me to be the person whose name as such is subscribed to the foregoing deed, as having executed the same, and acknowledged that he had as such execu- tor subscribed to the foregoing deed, as having executed the same, and acknowledged that he had as such executor executed the same for the uses and purposes therein expressed. In Y/itness Whereof, I have hereunto set my hand and seal, at my office in said county, this day of A.D. i8 {Signahire.) {Sea!.) (159.) Dsed Poll of Guardian of a Minor. Know all Men by these Presents, That whereas {name of guardian and grantor) of in the County of and State of , guardian of {name of the ward) a minor child of {name of the father of the minor) by an order of the Probate Court, held at within and for County of on the day of in the year one thousand eight hundred and was hcensed and empowered to sell and pass deeds to convey certain real estate of the said minor ; and whereas, I the said guardian, having given pub- lic notice of the intended sale, by causing notifications thereof to be pub- lished once a week, for three successive weeks, prior to the time of sale, in the newspaper called the printed at and having first taken the oath and given the bond by law in such cases required, did on the day of in the year one thousand eight hundred and pursuant to the order and notice aforesaid, sell by public auction the real estate of the said minor hereinafter described, to {the name, residence, and occupation of the purchaser and grantee) for the sum of dollars ^^j he being the highest bid- der therefor. Now, Therefore, Know ye, That I, the said {name of the guardian and grantor) guardian as aforesaid, by virtue of the power and authority in FORMS OF DEEDS. 53 1 me vested as aforesaid, and in consideration of the aforesaid sum o£ dollars i^jj to me paid by the said the receipt whereof is hereby acknowledged, do, by these presents, give, grant, sell, and convey unto the said {name of the purchaser and grantee) a certain lot or parcel of land, situated, bounded, and described as follows {here describe the premises as directed in Form I07.) To Have and to Hold the aforegranted premises, with all the privileges and appurtenances to the same belonging, to him the said {ptirchaser's tiame) and his heirs and assigns, to his and their use and behoof forever. And I, the said {itame of guardian) for myself, my heirs, executors, and administrators, do hereby covenant with the said (tiame of purchaser) and his heirs and assigns, that in pursuance of the order aforesajd, I gave public notice of the said intended sale, in manner aforesaid, and that I took the oath by law required, previous to fixing on the time and place of sale, and gave the bond previous to said sale. In "Witness Whereof, I, the said guardian as aforesaid, have hereunto set my hand and seal, this day of in the year of our Lord one thousand eight hundred and {Signature) {Seal.) Signed, Sealed, and Delivered in Presence of ss. A.D. 18 . Then personally appeared the above-named guardian, and acknowledged the foregoing instrument to be free act and deed. Before vie, "Justice of the Peace. (IGO.) Dead of Referee on Foreclosure, in use in the Middle States. This Indenture, Made the day of in the year one thousand eight hundred and between {name and resi- dence of the referee and grantor), a referee duly appointed as hereinafter mentioned, of the first part, and {name, residence, and occupation of the grantee) of the second part. Whereas at a Term of the {name of the court) court, on the day of one thousand eight hundred and it was among other things ordered and adjudged by the said court, in a certain action then pending in the said court, betjveen {names of plaintiff and fiefendant in the action). That all and singular the mortgaged premises mentioned in the complaint in said action, and in said judgment described, or so much thereof as might be sufficient to raise the amount due to the plaintiff for principal, interest, an^ costs in said action, ahd which might be sold separately, without mate- rial injury to the parties interested, be sold at public auction, according to the course and practice of said court, by or under the direction of the said 532 DEEDS CONVEYING LAND. party of the first part as referee thereby, duly appointed for that purpose ; that the said sale be made {here state the directions in the order of court as to the place and time of tlie sale) W\-2X the said referee give public notice of the time and place of such sale, according to the course and practice of said court, and that any cf the parties in said action might become a purchaser or purchasers on such sale ; that the said referee execute to the purchaser or purchasers of the said mortgaged premises, or such part or parts thereof as should be sold, a good and sufficient deed or deeds of conveyance for the same. And Whereas, the said referee, in pursuance of the said judgment of the said court, did on the day of one thousand eight hundred and sell at public auction at {the place of sale) the premises in the said judgment mentioned, due notice of the time and place of such sale being first given, agreeably to the said judgment ; at Which sale the premises hereinafter described were struck off to the said party of the second part for the sum of dollars, that being the highest sum bidden for the same. Now this indenture witnesseth, that the said referee, the party of the first part to these presents, in order to carry into effect the sale so made by him as aforesaid, in pursuance of the judgment of said court, and in conformity to the statute in such case made and provided, and also in consideration of the premises, and of the said sum of money so bidden as aforesaid, being first duly paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath bargained and sold, and by these presents doth grant and convey unto the said party of the second part, the premises aforesaid, situate, bounded, and described as follows {describe liere tlie premises sold as directed in Form 107). To Have and to Hold all and singular the premises above mentioned and described, and hereby conveyed, or intended so to be, unto the said party of the second part, his heirs and assigns, to and for his and their only proper use, benefit, and behoof. In Witness Whereof, Tlie said referee as aforesaid, hath hereunto set his hand and seal, the day and year first above written. {Sigtiature.) {Seal) Sealed and Delivered in the Presence of State of ,^ >-ss. County.) On the day of one thousand eight hundred and before me came known to me to be the individual described in, and who executed the above conveyance, and acknowledged that he executed the same. * (Signature) FORMS OF DEEDS. 53, (161.) Deed of Collector of Taxes. To all Persons to whoin these Presents shall come, I, {name of collector) of in the County of and State of collector of taxes for said town of duly chosen and qualified at the last annual meeting of the inhabitants of said town, held on the day of last past sends greeting : Whereas, the assessors of said town of {name of the iowii) in their list of assessments committed to me, the said {name of the collector) to collect, have assessed {name of the party for whose taxes the land is sold) a resident owner of a certain tract of land situated in said bounded and described 11s ioWovis, Viz. (describe the prejnises as directed in Form lofj the sum of {amount of tax) and 1^5 dollars, as a tax on said premises for the year eighteen hundred and And Whereas I, the said {tiante of collector) have demanded payment of said tax of {name of party taxed) more than fourteen days before proceeding to advertise and sell as hereinafter set forth. And Whereas, the said {name of the party taxed) has given no written authority to any inhabitant of said town, as his attorney to pay the tax im- posed on said land, and no mortgagee of said land has given written notice to the clerk of said town, that he the said mortgagee holds a mortgage thereon, nor given written authority to any inhabitant of said town as his attorney, to pay said tax. And Whereas, I, the said having given public notice of the time and place of sale of the said land, for the non-payment of said tax, by an advertisement thereof three weeks successively, in the newspaper called the printed and published in in said county, the last publication of said advertisement being one week before the time of said sale : also by posting a like notice on said land three weeks before the time of said sale ; and also by posting a like notice {here state whatever other places Xke notice was posted at) ht\xig two public places in said town, three weeks before the time of said sale, whicli notices severally contained the name of the said {name of the party taxed) and the amount of the tax assessed on said land; also a substantially accurate description of said land, did, on the day of instant, pursuant to the authority and notice aforesaid, no person appearing to pay said tax, and it being the opinion of me, that the said land could not be conveniently divided and a part thereof set off without injury to the residue, and judging it to be most for the public interest to sell the whole of said land, sell, at public auction, the said land above described, to {name of purchaser and grantee) ior the sum of and ^-j^ dollars, he being the highest bidder therefor. Now Therefore Know Ye, that I, the said {name of the collector) by virtue of the authority in me vested as aforesaid, and in consideration of the aforesaid sum of and j^ dollars, to me paid by the said {name 534 DEEDS CONVEYING LAND. of the purchase?-) the receipt whereof is hereby acknowledged, do hereby give, grant, bargain, sell, and convey unto the said all that said tract or parcel of land above mentioned and described, with the appurte- nances thereto belonging. To Have and to Hold the same to him, the said grantee, his heirs and assigns, to his and their use and behoof forever; subject, nevertheless, to the right of redemption, according to law. And 1, the said grantor, do covenant with the said grantee, his heirs and assigns, that in making the said sale as above set forth, I have complied with, observed, and obeyed all the provisions of law for the sale of real estate for the non-payment of taxes. 'in Witness V/hereof, I, the said collector, have hereto set my hand and seal, this day cf in the year eighteen hundred and {Signature.) {Seal.) E.recuted and delivered in presence of State of , > r SS. County. ) A.D. iS Then personally appeared the above-named collector, and acknowledged the above instrument to be his free act and deed. Before me, Justice of the Peace. (1G2.) Deed of Assignee, in use in the Western States. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and (A.D. i8 ) between [name, residence, and occtipation of the assignee who is the grantor) as assignee of (name, residence, and occupation of assignor) of the one part, and {name, 7-esidence, and occupation of the purchaser luho is grantee) of the other part: Whereas, The said {name of the assignor) being lawfully seized in his demesne, as of fee, among other things, of and in a certain lot, piece, or parcel of ground, situate in the County of and State cf known and described as follows, to wit {here describe the premises as in Form 107). And being so thereof seized, did, on or about the day of A.D. one thousand eight hundred and (A.D. iS ), enter into a written contract with the said party of the second part for the sale of the above-described premises for the sum of dollars. And Whereas, The said {name of the assignor) did, by his certain deed of assignment, bearing date the day of A.D. 1 8 , grant, bargain, sell, aliene, remise, release, convey, assign, transfer, and set over (with other property) the above-described lot, piece, or parcel cf ground unto the said party of the first part, his successors, FORMS OF DEEDS. 535 executors, administrators, and assigns forever, in trust nevertlieless, to and for the uses and intent and purposes in said deed of assignment mentioned and set fortli, reference tliereto being had may fully and at large appear ; which said deed of assignment is recorded in Bool< page' of deeds, in the office of (the clerk of the Circuit Court of said county, and ex-ofBcio recorder of deeds). And Wliereas, The said assignor did not comply TOth the said contract before the execution and delivery of the said deed of assignment to the said party of the first part. Now this Indenturo "Witnesseth, That the said {na7ne of the assignee and grantor') assignee of said {iiame of the assignor) for and in con- sideration of the sura of dollars (being the balance of the purchase money and interest due on said contract), unto him in hand paid by the said party of the second part, at and before the ensealing and delivery hereof, the receipt whereof is hereby acknowledged by these pres- ents, does grant, bargain, sell, aliene, release, and confirm unto the said party of the second part, and his heirs and assigns, all the above mentioned and described lot, piece, or parcel of grour.d, together with all and singular the rights, hereditaments, and appurtenances thereunto belonging or in anywise appertaining, and all the estate, right, title, interest, property, claim, and demand whatever, that he the said assignor had and held at and immediately before the execution and delivery of the said deed of assignment to said party of the first part, and also all the right, title, interest, property, claim, and demand whatever, that the said party of the first part acquired in, under or by virtue of the said deed of assignment by said assignor, to him, the said party of the first part. To have and to hold the same, together with all and singular the appurtenances and privileges thereunto belonging, or in anywise appertaining, and all the estate, right, title, interest, and claim what- soever, either in law or equity, that said assignor had and held at the time of and immediately preceding the execution and delivery of Slid deed of assignment to the said party of the first part, and all the right, title, interest, and claim whatsoever of the said party of the first part, either in law or equity, to the only proper use, benefit, and behoof of the said party of the second part, his heirs and assigns forever. In "Witness V/liereof, The said party of the first part has hereunto set his hand and seal, the day and year first above written. {Signature of Assignee^ {Seal.) State of ) y ss. County. ) I, a in and for said county, in the State aforesaid, do hereby certify that who is personally known to me as the real person whose name is subscribed to the within deed, appeared before me this day, in person, and acknowledged that he executed 536 DEEDS CONVEYING LAND. and delivered the said deed, as his free and voluntary act, for the uses and purposes therein set forth. Given under my hand and seal this day of in the )-ear of our Lord one thousand eight hundred and {Signature.) {Seal.) (1G3.) Acknowledgment of Grantor and Wife identified, before Commissioner for another State. State of > y ss. COUXTY OF ) Be it Kemcmtiorcd, That on the day of one thousand eight hundred and before me, commissioner for the State of {na7ne of ilie Slate of luhich l:e is C07nmts- sioncr) resident in the of , duly appointed, commissioned, and sworn to take acknowledgments and proof of deeds and other writings in the State of , to be used or recorded in the said State of {name of the State cf '■jjltich he is co!i!jnissio?iei-) and to administer oaths and affirmations, and to take depositions in said State of , to be used within the said State of appeared {name of grantor) and {name of luife of grantor) his wife, who are satisfactorily proven to me to be the individuals described in, and who exe- cuted the within deed, from said {name of grantoi-) ^nd. wife to {navie of grantee) b}' the oath of {iL'itncsscs to their identity) who being by me duly cautioned and sv.'orn, deposed that he knew them, the individuals, then present, to be the persons described in, and who executed the within deed. The said and his wife, then and there acknowledged to me that they executed the said deed for the purposes therein mentioned ; and the said {name of the li'ife) being exam- ined by me privily, and apart fi'om her said husband, and the contents and effect of the said deed being by me first duly explained to her, did then and there acknowledge that she executed the same for the purposes therein mentioned, freely and without compulsion of or from her said husband. la "Witness "Whereof, I have hereunto set my hand and affixed the seal of my office, on the day of in the year of our Lord one thousand eight hundred and {Signat2ire.) {Seal.) Dominion of Canada. The two Canadas were separated as to civil rights in 1791, and the French laws were allowed to remain in force in Lower Canada, while the civil laws of England were declared to be in force in Upper Canada. Now, both of these provinces, and with FORMS OF DEEDS. 537 them nearly all the other British provinces in North America, are consolidated into the Dominion of Canada. But the same distinction of law continues to a considerable extent. In the Province of Quebec, formerly Lower Canada, the principles, forms, and usages of the French law prevail largely ; while, in the other provinces, the common law of England prevails, as in the United States generally, and the forms and usages are sub- stantially similar in all of them. We give selected forms of deeds of grant and sale, mort- gages, and leases, from different provinces, which we believe will suffice for practice generally throughout the Dominion. There are certain provisions, which, though not universal, are prevalent, and would always be safe and prudent. Deeds con- veying land are now almost universally registered, and there should be a subscribing witness, who declares in an affidavit his name, residence, and occupation, and makes oath : i. To the exe- cution of the original, and of the duplicate, if there be one. 2. To the place and date of execution. 3. That he knew the parties to the instrument, or one or more of them, as the case may be. If the deed be made in Quebec, it should be executed before a judge, or prothonotary, or the clerk of the Circuit Court, or a commissioner empowered to take affidavits, or a notary public. (164.) Deed of Land in iise in the Province of Ontario. TMs Indenture, Made {in duplicate) the day of one thousand eight hundred and in pursuance of the Act respecting short forms of conveyances, between ijiere insert the name, occu- pation, and residence of the grantor or grantors) of the first part, and (Jiere insert the name, occupation, and residence of the grantee or grantees) of the second part, Witnesseth., That in consideration of {here insert the price paid) of lawful money of Canada, now paid by the said part of the second part to the said part of the first part (the receipt whereof is hereby by acknowledged), the said part of the first part do grant unto the said part of part, heirs and assigns forever, all and singular th certain parcel or tract of land and premises situate, lying and being {here insert a description of the premises sold, suistantially the saine as in Form 107). To Have and to Hold unto the said part of the part, 538 DEEDS CONVEYING LAND. heirs and assigns, to and for their sole and only use forever ; subject, nevertheless, to the reservations, limitations, provisos, and condi- tions expressed in the original grant thereof from the Crown. And the said part of the first part release to the said part of the part all claims upon the said lands. In "Witness Whereof, The said parties hereto have hereunto set their hands and seals. (Signaiiires^ {Seals.) Signed, Sealed, and Delivered in the Presence cf County of to wit: I, make oath and say: i. That I was personally present and did see the within instrument and duplicate duly signed, sealed, and executed by the part thereto. 2. That the said instrument and duphcate were executed at the . 3. That I, know the said part . 4. That I am a subscribing witness to the said instrument and duplicate. Sworn before me at the of in the County of this day of in the year of our Lord iS . A Commissioner for taking affidavits in B. A'., b^c. (105.) Deed of Land with Mortgage Back to secure the Price, in ■use in the Province of Quebec. On Tills Day, the of in the year of our Lord one thousand eight hundred and before the undersigned public notar , duly commissioned and sworn, in and for the heretofore Province of Lower Canada, now the Province of Quebec, in the Dominion of Canada, residing in the city of Montreal, in the said Province, personally appeared {name, residence, and occupation of the grantor or grantors') who acknowl- edged and confessed to have bargained, sold, assigned, transferred, and made over, and by these presents do bargain, sell, assign, transfer, and make over, from henceforth and forever, with promise of warranty against all gifts, dowers, mortgages, substitutions, alienations, and other hindrances whatsoever, to {name, residence, and occupation of the grantee or grantees) part to these presents, and accepting thereof, for heirs and assigns, {the description of the premises conveyed substantially as in Form 107,) with all and every the members and appurtenances thereunto belonging, of all which the said purchaser declare to have a perfect knowledge, as having seen and viewed the same, and therewith content and satisfied. Which said vendor lawfully seized thereof, by virtue of a good and sufficient title, the same having been acquired {here give a brief but accurate account or abstract of the title). The aforesaid hereby bargained and sold lot , piece , or parcel of land and premises. FORMS OF DEEDS. 535 To Have, Hold, Use, and Enjoy the aforesaid bargained and sold and premises, with their rights, members, and appur- tenances, unto the said heirs and assigns, as their own proper freehold forever, by virtue of these presents, to enter upon and take possession of the aforesaid and premises . The present bargain and sale is made in manner as aforesai-d, for and in consideration of the sum of And for Security of the due and faithful payment of the said balance of consideration money and interest, the hereby bargained and sold lot of and premises, are, by these presents, specially, and by privilege of bailleur de fonds, mortgaged and hypothecated. And, as further security, the said purchaser do hereby bind and oblige immediately to insure and to keep constantly insured at own cost and expense against loss by fire, with such insurance com- pany or companies as the said vendor or representatives may approve of, for a sum of money equal to the amount of the ptesent obligation, the house and other buildings erected on the above-described piece and parcel of land, and to transfer to the said vendor and representatives the policy or policies of such insurance and insurances, together with the sum of money thereby insured, the whole as long as any part or portion of the said amount in principal or interest may remain unpaid. Failing which, the said vendor heirs and assigns, shall have the right to do so, and the said pur- chaser heirs and representatives, shall be bound to repay on demand to the said vendor heirs and assigns, all such sum and sums of money which he or they may have expended in so doing; and for security thereof the said premises are hereby further hypothecated to the extent of And in consideration of the premises, the said vendor do hereby trans- fer and set over to the said purchaser all right of property, claii-^, title, interest, demand, seizin, possession, and other rights whatsoever, which the said vendor can have, demand, or pretend in or upon the aforesaid hereby bargained and sold lot , piece , or parcel of land and premises of which hereby divest in favor of the said purchaser heirs and assigns consenting and agreeing, that the said purchaser be, and remain seized and invested with the full and entire possession thereof, and for that purpose, do hereby constitute the bearer of these presents Attor- ney, to whom give all necessary power and authority to that effect, — For thus, dr'c. And at the making and passing of these presents also personally appeared and intervened Dame wife of the said by her said husband duly and specially authorized for all and every the effects and purposes hereof ; who, after having had and taken communication of the foregoing deed of sale, declared to have renounced, as by these pres- ents, she doth, as well in her own name and behalf, as for and in the name and on behalf of her child or children born or to be born, issue of her mar- riage with the said renounce to all dower and all right and title of dower, soit coutumier ou prefix which she, the said 540 DEEDS CONVEYING LAND. might or of right ought to have or claim in or upon the above-described and hereby bargained and sold lot, piece, or parcel of bind and premises, of which she hereby divests herself and her said children, declaring the said property and every part thereof, hereby freed, cleared, and discharged of and from all her said rights of dower, and all other her matrimonial rights and claims, whether legal, stipulated, or customary. And for the execution of these presents, and of every the premises, the said p:irties have elected their domicil at the place above mentioned. Where, etc. — N^otwithstanding, etc. — Promising, etc. — Obliging, etc. — Re- iiouncing, etc. Dene and Passed at the said city of Montreal, in the office of the said Notary, on tlie day, month, and year first before written, in the noon, and signed by the said with, and in the presence of said Notary, also hereunto subscribing, these pres- ents having been first duly read and executed under the number thousand hundred and (106.) Deed of Land with Covenants and Release of Dower, in use in the Province of Ontario. This Indenture, Made {in duplicate) the day of in the year of our Lord one thousand eight hundred and in pursuance of the Act respecting short forms of conveyances, between Uiere insert the name, residence, and occupation of the grantor or grantors) of the first part {here insert the name of the wife of the grantor), wi of the said part of the first part ; of the second part; and (here insert the name, residence, and ocenpation of the grantee or grantees) of the third part. "Witnesseth, That in consideration of of lawful money of Canada, now paid by the said part of the third part, to the said part of the first part (the receipt whereof is hereby by acknowledged), he the said part of the first part, do grant unto the said part of the third part, heirs and assigns forever, all and singular th certain parcel or tract of land and premises situate, lying, and ht\ng {here insert the description of the premises conveyed, substantially as in Form 107). To Have and to Hold unto the said part of the third part, heirs and assigns, to and for and their sole and only use forever; subject, nevertheless, to the reservations, limitations, provisos, and conditions ex- pressed in the original grant thereof from the Crown. The said part of the first part covenant with the said part of the third part that he ha the right to convey the said lands to the s:.id part of the third part, notwithstanding any act of the said part of the first part. And that the said part of the third part shall have quiet possession of the said lands, free from all incumbrances. FORMS OF DEEDS. 541 And the said part of the first part covenant with the said part of the third part, that will execute such further assurances of the said lands as may be requisite. And the said part of the first part covenant with the said part of the third part, that he ha done no act to encumber the said lands. And the said part of the first part release to the said part of the third^ part all claims upon the said lands. And the said part of the second part, wi of the said part cf the first part, hereby bar dower in the said lands. In V/itness Whereof, The said parties hereto have hereunto set their hands and seals. Signed, Sealed, and Delivered in the Presence of Received, on the day of the date of this Indenture, from the said part of the third pirt, the sum of being the full consid- eration therein mentioned. ( Witness^ County of to wit : I, of the in the County of make oath and say: i. That I was personally present and did see the within in- strument and duplicate thereof duly signed, sealed, and executed by the part thereto. 2. That tlie said instrument and duplicate were executed at the 3. That I, know the said part . 4. That I am a subscribing witness to the said instrument and duplicate. Sworn before me at in the County of this day of in the year of our Lord 18 A Commissioner for taking Affidavits in B. R., etc. (167.) Deed of G-rant and Quitclaim, for General Use. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between {na?ne, residence, and occupation of the grantor) of the one part, and {name, residence, and occupation of the grantee) of the other part, witnesseth that for and in consideration of the sum of of lawful money of to the said in hand well and truly paid by the said at or immediately before the sealing and delivery of these presents (the receipt whereof the said do hereby acknowledge, and of and from the same, and every part thereof, do acquit, release, and discharge the said heirs, executors, administrators, and assigns forever by these presents) the said hath granted, released, and confirmed, and by these presents doth grant, release, and confirm to the said party of the first part. (Here describe carefully the premises conveyed). 542 DEEDS CONVEYING LAND. Together with all and every the rights, privileges, easements, advant- ages, and appurtenances whatsoever, to the said hereditaments belonging, or in anywise appertaining, or thereunto now or heretofore holden, used, occupied, or enjoyed. To Have and to Hold the said messunges and tenements, land and hereditaments, and rdl and singularother the premises hereinbefore granted, appointed, and released, or expressed and intended so to be, with their ap- purtenances, unto and to the use of the said heirs and assio'ns forever. Subject, nevertheless, to the quit-rents to become due, exceptions, reservations, covenants, and conditions in the original grants or letters-patent of the said premises reserved and contained. And the said do hereby for heirs, executors, and administrators, covenant, promise, and agree with and to the said heirs and assigns, in manner and form following ; that is to say, that it shall and may be lawful to and for the said heirs and assigns, from time to time, and at all times hereafter, peaceably and qu'etly to enter into and upon, and to have, hold, occupy, possess, and enjoy the said messuages, lands, and other heraditaments hereinbefore granted and released, or expressed and intended so to be, with their appurtenances, and to receive and take the rents, issues, and profits thereof, and of every part thereof, to and for his and their proper use and benefit, without the lawful let, suit, trouble, denial, eviction, interruption, claim, or demand whatsoever, of or by the said heirs or assigns, or of or by any other person, lawfully or equitably claiming or to claim, by, from, or under, or in trust for him, them, or any of them. In V/itness Whereof, I, the said {name of the grantor), have hereunto' subscribed my name and affixed my seal, at on the day of in the year of our Lord (Name of Grantor^ {Seal.) Executed and Delivered in Presence of {A~aines of witnesses.) $ Received, on the day of the date of the within written Indenture, of and from within named, the sum of of lawful current money of being the full consideration money within men- tioned, to be paid by to H^itness. This Deed was acknowledged before me by therein named apart from her husband, to have been voluntarily executed by her, and that she was aware of the nature of the contents thereof. Dated this day of A.D. 18 7. P. for County. FORMS OF DEEDS. 543 (168.) Deed of Grant of Sale of Land, in use in Prince Edward Island. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between ifiame, residence, and ocatpation of the grantor) of the one part, and {name, resi- dence, and occupation of the grantee) of the other part, Witnesseth, That for and in consideration of the sum of of lawful money of Prince Edward Island, to the said in hand well and truly paid by the said at or immediately before the sealing and delivery of these presents (the receipt whereof he the said doth hereby acknowledge, and of and from the same, and every part thereof, doth acquit, release, and discharge the said heirs, executors, administrators, and assigns, and every of them, forever, by these presents) he the said hath granted, bargained, sold, aliened, released, and confirmed, and by these presents, doth grant, bargain, sell, aliene, release, and confirm (and the said {name of the wife of the grantor) doth hereby release all her right of dower) unto the said heirs and assigns, all that tract, piece, or parcel of land, situate, lying, and being {describe carefully the premises sold and conveyed). Together with all woods, underwoods, ways, waters, watercouases, houses, outhouses, yards, buildings, stables, gardens, fences, profits, com- modities, privileges, easements, and advantages whatsoever, to the said lands, hereditaments, and premises belonging, or in anywise appertaining, or there- with usually held, used, occupied, possessed, enjoyed, reputed, taken, or known as part, parcel, or member thereof, or of any part thereof ; and the reversion and reversions, remainder and remainders, rents, issues, and prof- its thereof, and of every part thereof ; and all the estate, ri^ht, title, trust, interest, property, claim, and demand whatsoever, both at law and in equity, of the said of, in, to, or out of the said lands, hereditaments, and premises, or any part thereof : To Have and to Hold the said lands, hereditaments, and premises hereby granted and released, or in.tended so to be, with their and every of their rights, members, and appurtenances, unto the said heirs and assigns, to the use of the said heirs and assigns forever ; subject, nevertheless, to all taxes, assessments, and other public burdens now imposed or hereafter to be imposed on the said premises men- tioned to be hereby granted, or any part or parcel thereof. And the said heirs, executors, and administrators, covenant, promise, and agree to and with the said heirs and assigns, by these presents, in manner following; that is to say, that the said at the time of the sedhng and delivery of these presents, lawfully, rightfully, and absolutely seized of and in, or well and sufficiently entitled unto, 544 DEEDS CONVEYING LAND. the said land, hereditaments, and premises hereby granted and released, or intended so to be, with the appurtenances to the same belonging, of or for a good, sure, perfect, lawful, absolute, and indefeasible estate of inheritance in fee-simple in possession, without any manner of condition, use, trust, power of revocation, limitation of use or uses, or any other restraint, cause, matter, or thing whatsoever, to alter, change, charge, abridge, defeat, encum- ber, revoke, or make void the same : and that he the said how ha in good right, full power, and lawful and absolute authority to grant, release, and convey all and singular the said lands, hereditaments, and j^remises, with the appurtenances, to the use of the said heirs and assigns, in manner aforesaid, according to the true intent and meaning of these presents : and also, that the said lands, hereditaments, and premises hereby granted and released, or intended so to be, and every of them, and every part thereof, with the appurtenances to the same belonging, shall and lawfully may from time to time, and at all times hereafter, remain, continue, and be to the use of the said heirs and assigns, and shall and may accordingly be i:)eaceably and quietly held and enjoyed by the said heirs and assigns, without any lavful let, suit, trouble, molestation, or interruption whatsoever, of, from, or by the said heirs or assigns, or any other persons whomso- ever lav.fuily or equitably claiming, or to claim, by, from, or under, or in trust for him or them, or any of their ancestors ; and that freely, clearly, and abs(flutely saved, defended, kept harmless, and indemnified by the said heirs, executors, or administrators, of, froin, and against all former and other estates, rights, titles, liens, charges, and encumbrances whatsoever, had, made, done, committed, executed, or suffered by the said or any of their ancestors, or any other person or persons whomsoever lawfully or equitably claiming, or to claim by, from, or under, or in trust for him, them, or any of them, or by or through his, their, or any of their wilful means or default, consent, privity, or procurement; and, further, that the said heirs, and all and every other person or persons whomsoever having or lawfully claiming, or who shall or may have or lawfully claim, any estate, right, title, trust, or .interest whatsoever, at law or in equity, of, in, to, or out of the said lands, hereditaments, and premises hereby granted and released, or intended so to be, or any of them, or any part thereof, by, from, or under, or in trust for or any of ancestors, shall and will from time to time, and at all times hereafter, upon the request and the cost and charges of the said heirs or assigns, make, do, perfonn, acknowledge, suffer, and execute, or cause and procure to be made, done, performed, acknowledged, suffered, and executed, all and every such further and other lawful and reasonable act and acts, thing and things, devises, conveyances, and assurances in the law whatsoever, for the further, better, more perfect, and absolute settling, conveying, and assuring of all and singu- lar the said lands, hereditaments, and premises hereby granted and released, ABSTRACT OF DEEDS. 545 with their appurtenances, to the use of the said heirs and assigns, as by the said heirs or assigns, or his, their, or any of their counsel learned in the law, shall be reasonably devised, advised, or required. And the parties aforesaid have hereunto set their hands and seals, at on the day of in the year of pur Lord {Na?ne of grantor.) (Seal.) {Name of grantee.) {Seal.) Executed and Delivered in Presence of {Name of witnesses.) Received, on the day of the date of the within written Indenture, of and from within named, the sum of of law- ful current money of being the full consideration money within mentioned to be paid by to IVitness. This Deed was acknowledged before me by therein named apart from her husband, to have been voluntarily executed by her, and that she was aware of the nature of the contents thereof. Dated this day of A.D. 18 y. P. for County. ABSTRACT OF THE LAWS OF ALL THE STATES RELATLNG TO DEEDS AND THEIR REQUIREMENTS. ALABAMA. — Every deed must be in writing or printed, and on parch- ment or paper, signed at the foot and attested by a witness or else acknowl- edged, and recorded ; and if they purport on their face to be sealed instruments, they have such force. ARKANSAS. — Deeds are construed to pass the whole estate of the grantor, unless specially limited. They must be executed in the presence of two witnesses, or acknowledged before two witnesses who subscribe their names as such, and acknowledged before the proper ofHccr, and must be recorded, to be effectual against third parties. CALIFORNIA. — Deeds are known under the Code as "grants." They pass the whole title and one in fee-simple, unless an express reservation is made, and must be acknowledged or proved, and recorded in the office of the Recorder for the County where the land is situated. There is no dis- tinction between sealed and unsealed instruments. COLORADO. — The whole estate conveyed passes unless there is an express limitation. The deed must be acknowledged and recorded in the County where the land is situated. No witnesses are required, and a scroll answers for a seal. 35 546 DEEDS CONVEYING LAND. COSTNECTICUT.— The deed must be in writing, signed, sealed, and acknowledged by the grantor, attested by two witnesses, and it must be recorded in the town where the lands lie. DELAWASE.— A deed in order to be recorded must be aclcnowledged, and it must be recorded in the office for the County where the land lies, within a year. Only one witness is necessary, and a scroll answers for a seal. FLORIDA.— Deeds must be in writing, sealed and delivered in presence of at least two witnesses ; must be acknowledged before a proper officer, and recorded in the County where the land is situated, within six months after the execution of the same. A scroll answers for a seal. GEORGIA. — A deed must be in writing, signed and sealed by the grantor ; attested by at least two witnesses ; acknowledged before the proper officer, and recorded in the Clerk's office of the Superior Court for the County where the land lies, within one year. It maybe recorded afterward, but loses priority over a subsequent deed which is recorded within the year. A scroll answers for a seal. ILLINOIS. — Deeds convey the whole interest unless there be a limita- tion ; must be acknowledged and recorded in the County where the land is situated. No witnesses are required, and a scroll answers for a seal. IBTDIANA. — The word " heirs " is not necessary in deeds, and seals and scrolls are abolished. The deed must be in writing, signed and acknowl- edged, and recorded in the County where the lands are. IOWA. — Every deed passes the grantor's whole interest unless a con- trary intent appears. Seals are not necessary, neither are witnesses. Deeds must be acknowledged before a Judge or Clerk of a Court having a seal, a Notary Public or Justice of the Peace, and recorded in the County where the lands lie. KAIiTSAS. — Deeds must be in writing, subscribed by the grantor, or his agent or attorney, acknowledged and recorded in the County where the land is. Private seals, except of corporations, are abolished. KENTUCKY. — The deed must be in writing, acknowledged, and recorded in the office of the clerk of the Court for the County where the land is. Seals are abolished. LOUISIANA. — Deeds should be acknowledged and attested by the person taking the acknowledgment, and two others, and should be recorded in the Parish where the property is. No seal or scroll is necessary. MAINE. — Deeds must be in writing, signed and sealed, acknowledged by the grantor, and recorded in the County where the land is. A scroll is sufficient for a seal. MARYLAND.— All deeds must be signed and sealed. They require at least one witness, and must be acknowledged and recorded within six months in the County where the lands lie. A scroll answers for a seal. MASSACHUSETTS.— Conveyances are made in writing, signed and sealed by the grantor or his attorney, and acknowledged and recorded in the County or District where the lands lie. No witnesses are necessary. A scroll is not sufficient. ABSTRACT OF DEEDS. 547 MICHIGAN. — Deeds must be signed and sealed, and witnessed "by at least two persons, and aclcnowledged and recorded in tlie County wliere the property is. A scroll answers for a seal. MINNESOTA. — Two witnesses are necessary to every deed. It must be acknowledged and recorded in the County where the land is. A scroU answers for a seal. MISSISSIPPI. — Deeds must be sealed and acknowledged, or proved by one or more of the subscribing witnesses, and recorded in the office of the Clerk of the Chancery Court for the County where the lands are. If the deed is not acknowledged, two witnesses are necessary. A scroll answers for a seal. MISSOURI. — Witnesses are not necessary. The deed should be signed and sealed, acknowledged and'recorded in the County where the land is. A scroll is equivalent to a seal. NEBSASKA. — The deed must be signed in the presence of at least one witness, who must also subscribe as such, and acknowledged or proved, and recorded in the County where the land is. Seals are abolished. NEVADA. — Deeds must be signed, acknowledged, and recorded in the County where the land is. Witnesses are unnecessary, and a scroll answers for a seal. NEW HAMPSHIEE. — Deeds must be signed and sealed, attested by two or more witnesses and recorded in the County where the land is. A scroll is not sufficient. NEW JERSEY.— Deeds must be signed, sealed, acknowledged, and recorded in the county where the land is. A scroll answers for a seal, and witnesses are not necessary, though usually taken. NEW YORK. — Every deed must be subscribed and sealed — and a scroll is not sufficient — and if not duly acknowledged previous to its deliv- ery, must be attested by at least one witness. It must be acknowledged before the proper officer, and recorded in the County where the land is. NORTH CAROLINA.— A scroll answers for a seal. Deeds must be acknowledged, or proved by one or more witnesses, and recorded within two years in the County where the land is. OHIO.— Deeds must be in writing, signed, sealed, and acknowledged in the presence of two attesting witnesses ; acknowledged before the proper officer, and recorded in the County where the land is. A scroll is sufficient for a seal. OREGON.— Deeds must be signed and sealed (a scroll is sufficient), acknowledged, and recorded in the County where the land is. Two wit- nesses are necessary. PENNSYLVANIA.— The deed must be sealed, acknowledged, and recorded in the County where the property is. One or more witnesses are usually taken. A scroll answers for a seal. RHODE ISLAND. — A scroll is insufficient, the seal must be affixed. The deed must be in writing, signed, sealed, and delivered ; acknowledged 548 MORTGAGES OF LAND. before tlie proper officer, and recorded in the office of the Cerk cf the Town where the property is. SOUTH CAROLINA.— The deed must be in writing, signed, sealed, and aclinowledged, and recorded in the office of the Register of Mesne Conveyances for the County where the land is. A scroll answers for a seal. Two witnesses are necessary. TENNESSEE.— Deeds must be acknowledged by the vendor, or proved by two witnesses, and registered in the County where the land lies. Seals are abolished. TEXAS. — A scroll answers for a seal. The deed must be signed and sealed, and acknowledged, or proved by two witnesses, and recorded in the office of the Clerk of the County Court where the land lies. VEKMONT. — Deeds must be signed and sealed (and a scroll is not sufficient) in the presence of two witnesses, acknowledged, and recorded in the Clerk's office of the town where the property is. VIRGINIA. — A deed must be signed and sealed by the grantor, and recorded within sixty days. A scroll is sufficient. WEST VIRGINIA.— Deeds must be executed under seal or scroll, acknowledged, or proved by two witnesses, and recorded in the County where the land is. "WISCONSIN. — Deeds must be signed and sealed in presence of two witnesses, acknowledged, and recorded in the County where the lands are. A scroll answers for a seal. CHAPTER XXX. MORTGAGES OF LAND. The purpose of a mortgage is to give to a creditor the security of property. It is very similar to a pledge, although not the same thing. Mortgages are now made of personal property, as well as of real property; but we will consider in this chapter a mortgage of real property ; or, as it is usually called, a mortgage deed. This is a deed conveying the land to the creditor as fully, and in precisely the same way, as if it were sold to him outright ; but with an addition. This consists of a clause inserted before the clause of execution, to the effect that if the grantor (the mortgagor) shall pay to the grantee (the mortgagee) a certain amount of money at a certain time, then the deed shall be void. It is usually expressed in words substantially like these : MORTGAGES OF LAND. 549 " Provided, nevertheless, that if the said A B (the grantor), his heirs, executors, or administrators, sliall pay to the said C D (the grantee), his executors, administrators, or assigns, the sura of $ with interest (semi-annually, or otherwise as agreed on), on or before the day of , then this deed, and also a certain promissory note signed by said A B, whereby said A B promised to pay said C D, or his order, the said sum at the said time, shall both be void; and otherwise shall remain in full force." In some states it is more frequent to make a bond, instead )f a note, to be secured by the mortgage; and the proviso should be altered accordingly ; and it should also be made to express any other terms agreed on. Some of these will be spoken of presently. In law, everything is a mortgage which consists of a valid conveyance, and a promise, or agreement, which may be on the same or on a different piece of paper or instrument, providing that the conveyance shall be void when a certain debt is paid, or the act performed for which the mortgage is security. The mortgagee has now a title to the land; but it is subject to avoidance by payment of the debt. Until such payment, the land is his ; and all the mortgagor owns in relation to it is a right to pay the debt and redeem the land. Hence, a mortgagee has instantly as good a right to take possession of the land (unless, as is now common, the deed provides that the mortgagor may retain possession) as if he were an outright purchaser. Formerly, a mortgagor had a right to redeem his land only before or when the debt became due ; for if he did not pay the money when it was due, he had no further right. But courts of equity, deeming this too hard, allowed him a further time to redeem it. And courts of law adopted the same rule, which is also contained in the statutes of all our States. This right to redeem is called a right in equity to redeem, or, more briefly and commonly, an equity of redemption; which all courts now regard and protect. The mortgagor may sell this equity of redemption, or he may mortgage it by making a second or other subsequent mortgage of the land, and it may be attached 550 MORTGAGES OF LAND. by creditors, and would go to assignees as a part of his property ' if he became insolvent. The time within which a mortgagor may thus redeem his land is usually three years. The law regards this equity as so important that it will not permit a party to lose it by his own agreement. Thus, if a mortgagor agrees with the mortgagee, in the most positive terms, or in any way he can contrive, or for any consideration, that he will have no equity of redemption, and that the mortgagee may have possession and absolute title as soon as the debt is due and unpaid, the law sets aside all such agreements, and gives the debtor his equity of redemption for three years. Within a few 3-ears, however, a way has been found to effect this purpose indirectly, which the law sanctions. Many persons object to lending their money on mortgage, because they will have to wait three years after the debt is due before the land can be certainly theirs. But it is now quite common for the mortgage deed to contain an agreement of the parties, that, if the money is not paid when it is due, the mortgagee may, in a certain number of days thereafter, sell the land (providing also such precautions to secure a fair price as may be agreed on), and, reserving enough to pay his debt and charges, pay over the balance to the mortgagor. This is called a power of sale mortgage. The three years of redemption do not begin from the day when the debt is due and unpaid, unless the mortgagee then enters and takes possession for the purpose of foirclosing the mortgage, as the legal phrase is; by which phrase is meant extinguishing the equity of redemption. If the debt has been due a dozen years, the mortgagor may still redeem, unless the mortgagee has entered to foiwlosc, and three years have elapsed afterwards. He may make entry for this purpose in a peaceable manner, before witnesses, as pointed out in the statutes regulating mortgages, or by an action at law. If the mortgagor redeems, he must tender the debt, with interest, and the lawful costs and charges of the mortgagee ; but he will be allowed such rents and profits as the mortgagee has actually received, or would have received but for his own fault. MORTGA GES OF LAND. 5 5 1 It is commonly thought that the mortgagor has a right to retain possession until the debt is due and unpaid, and in fact he usually does so. But we have seen that the mortgagee has just as much right of immediate possession as a buyer; and therefore, if it is not intended that he should have possession at once, the mortgage deed ought to contain a clause to the effect that the mortgagor may retain possession as long as he pays instalments and interest as due, and complies with his other agreements. One of these other agreements, which is now very common, is that the mortgagor shall keep the premises insured in a cer- tain sum for the security of the mortgagee; and, if there be such an agreement, it should be expressed in the deed. Other- wise, if the mortgagee insures the house, he cannot charge the premium to the mortgagor. If a mortgagor erects buildings on the mortgaged land, or puts fixtures there, and the mortgagee takes possession of the land, and forecloses the mortgage, he gets all these additions. If the mortgagee puts them on the land, and the mortgagor redeems, he gets the benefit of them all, without paying the mortgagee for them. Such is the effect of the law if there be no bargain between the parties about these things. But they may make any bargain about them they choose to make. In the Forms appended to this chapter are many Forms of release and discharge of mortgages. In some states it is com- mon to release a mortgage by a quitclaim deed from the holder of the mortgage to the holder of the land or of the equity or right of redemption. And not unfrequently it is done by an acknowledgment of satisfaction, release, or discharge drawn by the Register or Recorder of Deeds on the margin of the record of the mortgage, and duly signed by the mortgagee or holder of the mortgage. Any instrument will have the effect of discharging and annulling a mortgage, which declares with sufficient definiteness that the debt, obligation, or covenant, which that mortgage was intended to secure, is paid, satisfied, or performed; the instrument being duly signed, sealed, and acknowledged, and placed on record. It takes effect like other deeds from the time it is placed in the Recorder's hands. 552 MOR TGA GES OF LA ND. Whenever a mortgage is discharged in any way, the Recorder makes an entry to that effect on the margin of the record of the mortgage. The remarks which were made at the close of the preceding chapter (just before the Forms) concerning the various Forms of deeds conveying land, apply with equal force to deeds of mort- gage of land ; and I refer to them now because they are equally necessary to the proper understanding and use of the following Forms. (169.) A Promissory Note, to be Secured by Mortgage. i8 for value received promise to pay to dollars, at with interest at the rate of per cent, per annum. This note is secured by a deed of mortgage of even date herewith from to % [Signature^ (170.) Bond, to be Secured by a Mortgage. Know all Men by these Presents, That I {name of obligor) of in the County of and State of , am held, bound, and obliged unto {name of obligee') of in the County of and State of in the sum of {penalty usually twice as 7nuch as the actual debt) to be paid to the said {the obligee) his executors, administrators, heirs, or assigns, and to this payment I hereby bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal, this day of in the year The Condition of the above obligation is such, that if I the said {name of the obligor) or my heirs, executors, or administrators, shall pay or cause to be paid unto the said {name of the obligee) the sum of {here ijisert the amount of the debt or snjn to be secured) on the day of in the year , with interest at per cent., payable six months from the date hereof, and every six months afterwards, until the said sum is paid, then the above obligation shall be void and of no effect, and otherwise it shall remain in full force. And I further agree and covenant, that if any payment of interest be withheld, or delayed for days after such payment shall fall due, the said principal sum and all arrearage of interest thereon, shall be and become due immediately on FORMS OF MOR TGA G£S, ETC. 553 the expiration of days, at the option of said {name of the obligee) or his executors or administrators. {Signature) {Seal.) {Witness) (171.) Mortgage ■without Power of Sale and without "Warranty, but with Release of Homestead and of Dower. This Indenture, made this day of in the year of our Lord one thousand eighf hundred and between {name, residence, and occupation of mortgagor) and {name of ■wife) wife of said {name of mortgagor) parties of the first part, and {name, residence, and occupation of mortgagee) party of the second part. "Whereas, The said party of the first part is justly indebted to the said party of the second part, in the sum of secured to be paid by a certain promissory note {or bond) {describe the note or bond). Now, Therefore, this Indenture Witnesseth, That the said parties of the first part, for the better securing the payment of the money aforesaid, with interest thereon, according to the tenor and effect of the said note {or bond) above mentioned, and also in consideration of the further sum of one dollar to us in hand paid by the said party of the second part, at the delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, and conveyed, and by these presents do grant, bargain, sell, and convey unto the said party of the second part, his heirs and assigns forever, all that {liere describe the premises as directed in Form 107). To Have and to Hold the Same, Together with all and singular the tenements, hereditaments, privileges, and appurtenances thereunto belonging, or in anywise appertaining. And also all the estate, interest, and claim whatsoever in law as well as in equity, which the parties of the first part have in and to the premises hereby conveyed unto the said party of the second part, and his heirs and assigns, and to their only proper use, benefit, and behoof. And the said parties of the first part hereby expressly waive, re- lease, relinquish, and convey unto the said party of the second part and his heirs, executors, administrators, and assigns, all right, title, claim, interest, and benefit whatever, in and to the above-described premises, and each and every part thereof, which is given by or results from all laws of this State pertaining to the exemption of homesteads. Provided Always, and these Presents are upon this Express Con- dition, That if the said party of the first part, or his heirs, executors, or administrators, shall well and truly pay, or cause to be paid to the said party of the second part, or his heirs, executors, administrators, or assigns, the aforesaid sum of money, with such interest thereon, at the time and in the manner specified in the above-mentioned note {or bond) according to the true intent and meaning thereof, then, in that case, these presents and everything herein expressed shall be absolutely null and void. SS4 MORTGAGES OF LAND. In Witness "Whereof, The said parties of tlie first part hereunto set their hands and seals, the day and year first above written. {Signature of mortgagor.) {Seal.) {Signature of wife of mortgagor) {Seal.) Signed, Sealed, and Delivered in Presence of State of ) ^ss. County.) I, in and for the said county, in the State aforesaid, do hereby certify that {name of mortgagor) personally known to me as the same person whose name is subscribed to the foregoing mortgage, appeared before me this day in person and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. And the said {natne of wife) wife of the said {name of mortgagor) having been by me examined, separate and apart, and out of the hearing of her hus- band, and the contents and meaning of said instrument of writing having been by me made known and fully explained to her, and she also by me being fully informed of her rights under the homestead laws cf this State, acknowledged that she had freely and voluntarily executed the same, and re- linquished her dower to the lands and tenements herein mentioned, and also all her rights and advantages under and by virtue of all laws of this State relating to the exemption of homesteads, voluntarily and freely, and without the compulsion of her said husband, and that she does not wish to retract the same. Given under my hand and official seal, this day of A.D. i8 {Sig7iature.) {Seal.) (172.) Mortgage, with Power of Sale, to Secure a Bond, without Release of Dower. This Indenture, Made the day of in the year one thousand eight hundred and between {name, residence, and occ7ipation of mortgagor) party of the first part, and {name, residence, and occupation of mortgagee) party of the second part : Whereas, the said {name of mortgagor) is justly indebted to the said party of the second part in the sum of lawful money of the United States, secured to be paid by a certain bond or obligation bearing even date with these presents, in the penal sum of dollars, lawful money as aforesaid, conditioned for the payment of the said first-mentioned sum of {here state the amount due on the bond, and the time and terms of payment) as by the said bond or obligation, and the condition thereof, reference being thereunto had, may more fully appear. Now this Indenture Witnesseth, That the said party of the first part, FORMS OF MORTGAGES, ETC. 555 for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, released, conveyed, and confirmed, and by these presents does grant, bar- gain, sell, aliene, release, convey, and confirm unto the said party of the second part, and to his heirs and assigns forever, all {here describe the prem- ises as directed in Form 107). Together with all and singular the tenements, hereditaments, and ap- purtenances thereunto belonging, or in anywise appertaining, and the rever- sion and reversions, remainder and remainders, rents, issues, and profits thereof ; and also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof with the appurtenances : To have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, and his heirs and assigns, to his and their Gv,n proper use, benefit, and behoof forever. Provided Always, and these presents are upon this express condition, that if the said party of the first part, or his heirs, executors, or adminis- trators, shall well and truly pay unto the said party of the second part, or his executors, administrators, or assigns, the said sum of money mentioned in the condition of the said bond or obligation and the interest thereon, at the time and in the manner mentioned in the said condition according to the true intent and meaning thereof, tliat then these presents, and the estate hereby granted, shall cease, determine, and be void. And the said {name of mort- gagor) for himself and his lieirs, executors, and administrators, does cove- nant and agree, to pay unto the said party of the second part, or his execu- tors, administrators, or assigns, the said sum of money and interest as mentioned above and expressed in the condition of the said bond. And if default shall be made in the payment of the said sura of money above men- tioned, or the interest that may grow due thereon, or any part thereof, that then, and from thenceforth, it shall be lawful for the said party of the second part, or his executors, administrators, or assigns, to enter into and upon all and singular the premises hereby granted or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said party of the first part, or his heirs, executors, administrators, or assigns therein, at public auction. And out of the money arising from such sale, to retain the principal and interest which shall then be due on the said bond or obligation, together v/ith the costs and charges of advertisement and sale of the same premises, rendering the overplus of the purchase-money (if any there shall be), unto the said {name of mortgagor) party of the first part, or his heirs, executors, administrators, or assigns, which sale, so to be made, 556 MOR TGA GES OF LAND. shall forever be aperpeturil bar, both in law and equity, against the said party of the first part, and his heirs and assi2;n=;, and all oth.cr persons claiming or to claim the premises, or any part thereof, by, from, or under him or them, or any of them. In Witness "Whereof, The parties to these presents have hereunto inter- changeably set their hands and seals the day and year first above written. {Sii^natnre of mortgagor^ {.Seal.) {Signature of mortgagee.') {Seal.) Sealed and Deliverediii the Presence of State of ■> > ss. County of ) On the day of in the year one thousand eight hundred and before me personally came {name of both parties) who are known to me to be the individuals described in, and who executed the foregoing instrument, and acknowledged that tliey executed the same. {Signature^ (173.) Mortgage to secure a Debt, -with Power cf Sale.— Short Form. This Indenture, Made the day of in the year one thousand eight hundred and between {name, residence, atid occupation of mortgagor) party of the first part, and {najne, residence, and occ7ipation of mortgagee) party of the second part, witnesseth, that the said party of the first part, in consideration of the sum of {the amount of the debt) to him duly paid before the delivery hereof, has bargained and sold, and by these presents does grant and convey to the said party of the second part, and his heirs and assigns forever, all {here describe the premises as directed in Form 107) with the appurtenances, and all the estate, right, title, and interest of the said party of the first part therein. This Grant is intended as a security for the payment of {here describe the debt) which payments, if duly made, will render this conveyance void. And if default shall be made in the payment of the principal or interest above mentioned, then the said party of the second part, or his executors, admin- istrators, or assigns, are hereby authorized to sell the premises above granted, or so much thereof as will be necessary to satisfy the amount then due, with the costs and expenses allowed by law. In "Witness Whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written. {Signature.) {Seal.) Sealed and Delivered in the Presence of FORMS OF MORTGAGES, ETC. 557 State of County of On the day of in the year one thousand eight hundred and before me personally came {jiajiie of mortgagor), who is known to me to be the individual described in, and who executed the foregoing instrument, and acknowledged that he executed the same, as his free act and deed. (Sig7iature^ (174.) Mortgage to secure a Debt, fuller Form, with Power of Sale. This Indenture, IVTade the day of in the year one thousand eight hundred and between {name, residence, and occupation of the mortgagor) party of the first part, z.-aA(/iame, residence, and occupation of the tnorigagee) party of the second part : Whereas, the said party of the first part is justly indebted to the said party of the second part in {here describe the amount and terms of the debt, or note, or bond). Now this Indenture Witnesseth, That the said party of the first part, for the better securing the debt {or note, or bond) above described, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, ahened, remised, released, conveyed, and confirmed, and by these presents does grant, bargain, sell, aliene, remise, release, convey, and confirm unto the said party of the second part, and to his heirs and assigns forever, all {here describe the premises as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof with the appurtenances ; To have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, and his heirs and assigns, to his and their own proper use, benefit, and behoof forever. Provided Always, and these presents are upon this express condition, that if the said party of the first part, or his heirs, executors, or administrators, shall well and truly pay to the said party of the second part, or his heirs, executors, administrators, or assigns, the above-described debt {or note, or bond) according to terms and tenor thereof, then- this deed {and also said debt. 558 MORTGAGES OF LAND. or note, or bond) shall be wholly discharged and void ; and otherwise shall remain in full force and effect. And if default shall be made in the payment of the said sum of money above mentioned, or the interest that may grow due thereon, or of any part thereof, that then and from thenceforth it shall be lawful for the said party of the second part, or his executors, administrators, and assigns, to enter into and upon all and singular the premises hereby granted, or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said party of the first part, or his heirs, executors, administrators, or assigns, therein, at public auction, according to the act in such case made and provided. And as the attor- ney of the said party of the first part, for that purpose by these presents duly authorized, constituted, and appointed, to make and deliver to the pur- chaser or purchasers thereof, a good and suflScient deed or deeds of convey- ance in the law for the same, in fee-simple, and out of the money arising from such sale, to retain the principal and interest which shall then be due on the said debt {or 7toie, or bond) together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the purchase-money (if any there shall be) unto the said party of the first part, or his heirs, executors, administrators, or assigns ; which sale, so to be made, shall forever be a perpetual bar, both in law and equity, against the said party of the first part, or his heirs and assigns, and all other persons claim- ing or to claim the premises or any part thereof, by, from, or under him, them, or either of them. In Witness "Whereof, The parties to these presents have hereunto set (heir hands and seals the day and year first above written. {Signature of mortgagor^ {Seal.) {Signature of mortgagee.) {Sea/.) Sealed and Delivered in the Presence of State of County of On the day of in the year one thousand eight hundred and before me personally came {name of both par- ties) who are known to me to be the individuals described in, and who exe- cuted the foregoing instrument, and acknowledged that they executed the same. {Signature) (173.) Deed Poll of Mortgage, with Power to Sell, and Insurance Clause, and Release of Dower and Homestead. Know all Men by these Presents, That I {name, residence, and occu- pation of mortgagor) in consideration of to me paid by {name, residence, and occnpatio7t of mortgagee) the receipt whereof is hereby acknowledged, do hereby give, grant, bargain, sell, and convey unto the said FORMS OF MORTGAGES, ETC. erg {name of mortgagee) all that lot or parcel of land, with all the buildings thereon standing, situated in the town {or city) of County of State of and bounded and described as follows : that is to say {here describe the premises as directed in Form 107). To Have and to Hold the afore-granted premises, with the privileges, easements, and appurtenances thereto belonging, to the said grantee, and to his heirs and assigns, to their use forever. And I, the said grantor, for myself and my heirs, executors, and adminis- trators, do covenant with the said grantee, and his heirs and assigns, that I am lawfully seized in fee of the afore-granted premises ; that they are free from all incumbrances {if any incumbrance exists, say "except as fot/ows,^' and describe the incumbrance,) that I have good right to sell and convey the same to the said grantee, and his heirs and assigns as aforesaid ; and that I will, and my heirs, executors, and administrators shall warrant and defend the same to the said grantee, and his heirs and assigns forever, against the lawful claims of all persons. Provided, Nevertheless, That if the said grantor, or his heirs, execu- tors, or, administrators, shall pay unto the said grantee, or his executors, administrators, or assigns, the sum of dollars^uj in days {or jnonths) from the day of the date hereof, with interest on said sum at the rate of per centum per annum, payable {se7ni-anntially) and until such payment keep the buildings standing on the land aforesaid insured against fire, in a sum not less than dollars, for the benefit of said mortgagee, and payable to him in case of loss, at some insurance ofiice approved by said mortgagee ; or in any default thereof, shall on demand pay to said mortgagee all such sums of money as the said mortgagee shall reasonably pay for such insurance, with interest, and also pay all taxes levied or assessed upon the said premises, then this deed, as also {a certain bond or) a certain promissory note, bearing even date with these presents, signed by the said mortgagor, whereby for value received he promises to pay the said mortgagee or his order, the said sum and interest, at the time aforesaid, shall both be absolutely void to all intents and purposes. But if default shall be made in the payment of the money above men- tioned, or the interest that may grow due thereon, or of any part thereof, then it shall be lawful for the said grantee, or his executors, administrators, or assigns to sell and dispose of all and singular the premises hereby granted or intended to be granted, and all benefit and equity of redemption of the said {na7ne of the mortgagor) the grantor, his heirs, executors, administrators, or assigns therein, at public auction ; such sale to be on or near the prem- ises hereby granted; first giving notice of the time and place of sale, by publishing the same once each week, for three successive weeks, in {jiame of the newspaper) a newspaper printed in the county of aforesaid ; and in his or their own names, or as the attorney of the said {name of mort- gagor) the grantor, for that purpose by these presents duly authorized, con- 560 MOR TGA GES OF LAND. stituted and appointed, to make and deliver to the purchaser or purchasers thereof, a good and sufficient deed or deeds of conveyance for the same in fee-simple ; and out of the money arising from such sale, to retain the said sum of dollars, or the part thereof remaining unpaid, and also the interest then due on the same, together with the costs and charges of advertising and selling the same premises ; rendering the surplus of the purchase-money, if any there be, over and above said sum and interest as aforesaid, together with a true and particular account of said sale and charges, to the said {name of the 7norigagor) the grantor, his heirs, executors, administrators, or assigns; which sale, so to be made, shall forever be a perpetual bar, both in law and equity, against the said(«i7;«£ of the 7iiort- gigor) the grantor, and his heirs and assigns, and all other persons claiming or to claim the premises, or any part thereof, by, from, or vmder him, them, or any of them. And Provided Also, that until some breach of the condition of this deed, the grantee shall have no right to enter and take possession of the premises, and hold the same. In "Witness "Whereof, We the said {name of mortgagor) and {name of his wife) wife of the said {name of mortgagor) in token of lier release of all right and tille of or to both dower and homestead in the granted premises, have hereunto set our hands and seals this day of in the year of our Lord eighteen hundred and {Signature of mortgagor.) {Seal.) {Signature of wife of mortgagor^ {Seal.) Executed and .Delivered in Presence of SS. 18 Then personally appeared the above-named and acknowledged the above instrument to be free act and deed, before me, fnstice of the Peace. (176.) Mortgage by Indenture, "with Po"wer of Sale and Interest and Insurance Clause, to secure a Bond. This Indenture, l\Iade the day of in the year one thousand eight hundred and between {name, residence, and occupation of the mortgagor) ^-uriy of the first part, and {name, residence, and occupation of the mortgagee) party of the second part : "Whereas, The said party of the first part is justly indebted to the said party of the second part, in the sum of {amount of debt due on the bond) dol- lars lawful money of the United States, secured to be paid by his certain bond or obhgation bearing even date with these presents, in the penal sum of {amount of penalty) lawful money as aforesaid, conditioned for the payment of the said first-mentioned sum of {amount of debt due on the bond) lawful FORMS OF MORTGAGES, ETC. 56 1 money as aforesaid, to the said party of the second part, or his executors, administrators, or assigns, on the day of which will be in the year one thousand eight hundred and and interest tliereon to be computed from at and after the rate of per cent, per annum, and to be paid {!ure set forth the time and terms of the payment). And it is Thereby Expressly Agreed, That should any deftult be made in the payment of the said interest, or of any part thereof, on any day whereon the same is made payable, as above expressed, and should the same remain unpaid and in arrear for the space of days, then and from thenceforth, that is to say, after the lapse of the said days, the aforesaid principal sum of {atnount of the debt) with all arrearage of interest thereon, shall, at the option of the said party of the second part, or his executors, administrators, or assigns, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired, anything thereinbefore contained to the contrary thereof in anywise notwithstanding: As by the said bond or obligation, and the condition thereof, reference being thereunto had, may more fully appear. Now this indenture witness- eth, that the said party of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, released, conveyed, and confirmed, and by these presents does grant, bargain, sell, aliene, release, convey, and con- firm unto the said party of the second part, and to his heirs and assigns for- ever, all {here describe carefully, the land or premises granted, as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof ; and also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof with the appurtenances : to have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, his heirs and assigns, to his and their own proper use, benefit, and behoof forever : Provided Always, and these presents are upon this express condition, that if the said party of the first part, his heirs, executors, or administrators, shall well and truly pay unto the said party of the second part, his executors, administrators, or assigns, the said sum of money mentioned in the condi- tion of the said bond or obligation, and the interest thereon, at the time and 36 562 MORTGAGES OF LAND. in the manner mentioned \:\ the said condition according to the true intent and meaning thereof, that then these presents, and the estate hereby granted, shall cease, determine, and be void. And the said {name of the mo7-tgagor) for himself and his heirs, executors, and administrators, docs covenant and agree to pay unto the said party of the second part, or his executors, admin- istrators, or assigns, the said sura of money and interest as mentioned above and expressed in the condition of the said bond. And if default shall be made in the payment of the said sum of money above mentioned, or the interest that may grow due thereon, or of any part thereof, that then and from thenceforth it shall be lawful for the said parly of the second part, or his executors, administrators, and assigns, to enter into and upon all and singular the premises hereby granted or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said party of the first part, or his heirs, executors, administrators, or assigns, therein, at public auction, according to law. And as the attorney of the said party of the first part, for that purpose by these presents duly authorized, constituted, and appointed, to make and deliver to the purchaser or purchasers thereof, a good and sufficient deed or deeds of conveyance in the law for tha same, in fee-simple, and out of the money arising from such sale, to retaio the principal and interest which shall then be due on the said bond or obli- gation, together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the purchase-money (if any there shall be) unto the said party of the first part, his heirs, executors, adminis- trators, or assigns ; which sale, so to be made, shall forever be a perpetual bar, both in law and equity, against the said party of the first part, and his heirs and assigns, and all other persons claiming or to claim the premises or any part thereof, by, from, or under him or them, or either of them. And it is Expressly Agreed by and between the parties to these pres- ents, that the said party of the first part shall and will keep the buildings erected and to be erected upon the lands above conveyed, insured against loss and damage by fire, by insurers approved by the said party of the second part, and in an amount approved by the said party of the second part, and assign the policy and certificates thereof to the said party of the second part ; and in default thereof, it shall be lawful for the said party of the second part to effect such insurance, and the premium and premiums paid for effecting the same shall be a lien on the said mortgaged premises, added to the amount of the said bond or obligation, and secured by these presents, and payable on demand with interest at the rate of per cent, per annum. In Witness Whereof, the parties to these presents have hereunto inter- changeably set their hands and seals the day and year first above written. (Signature of mortgagor.) [Seal.) {Signature of mortgagee.) {Seal.) Sealed and Delivered in the Presence of FORMS OF MORTGAGES, ETC. 563 State of County. J On the day of i:i the j'ear one thousand eight hundred and before me personally came the individuals described in, and who executed the foregoing instrument, and acknowledged that they executed the same as their free act and deed. {Signature^ (177.) Mortgage to Execntors, with Power cf Sale. This Indenture, Made the day of in the year one thousand eight hundred and between iitavte, resi- dence, and occupation of the mortgagor) party of the first part, and {name and residence of the jnortgagee) executor of the last will and testament of (itame and residence of the testator) deceased, of the second part ; whereas, the said party of the first part is justly indebted to the said party of the second part in the sum of lawful money of the United States of America, secured to bff paid by a certain bond or obligation bearing even date with these presents, in the penal sum of lawful money as afore- said, conditioned for the payment of the said first-mentioned sura {state the terms of the payment, and if the bond was made to the testator, state that) as by the said bond or obligation and the condition thereof, reference being thereunto had, may more fully appear. No-w this Indenture "Witnesseth, That the said party of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation with interest thereon, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, released, conveyed, and confirmed, and by these presents does grant, bargain, sell, aliene, release, convey, and confirm, unto the said party of the second part, and his successors and assigns forever, all {here describe carefully the land or premises granted, as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof: and also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof with the appurtenances. To have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, his successors and assigns, to their only proper use, benefit, and behoof forever. Provided always, and these presents are upon this 564 MORTGAGES OF LAND. express condition, that if the said party of the first part, or \\\=, heirs, executors, or administrators, shall well and truly pay unto the said party of the second part, or his successors or assigns, the said sum of money mentioned in the condition of the said bond or obligation, and the interest thereon at the time, and in the manner mentioned in the said condition, according to the true intent and meaning thereof, that then these presents, and the estate hereby granted, shall cease, determine, and be null and void. And the said party of the first part, for himself and his heirs, executors, and administrators, does covenant and agree to pay unto the said party of the second part, his successors or assigns, the said sum of money and interest, as mentioned above, and expressed in the condition of the said bond. And if default shall be made in the payment of the said sum of money above mentioned, or the interest that may grow due thereon, or of any part thereof, that then and from thenceforth it shall be lawful for the said party cf the second part, his successors and assigns, to enter into and upon all and singular the premises hereby granted, or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said party of the first part, or his heirs, executors, administrators, or assigns therein, at public auction, according to law. And as the attorney or attorneys of the said party of the first part, for that purpose by these pres- ents duly authorized, constituted, and appointed, to make and dehver to the purchaser or purchasers thereof a good and sufficient deed or deeds of con- veyance in the law for the same, in fee-simple, and out of the money arising from such sale, to retain the principal and interest which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the purchase-money (if any there shall be) unto the said party of the first part, his heirs, executors, administrators, or assigns ; which sale, so to be made, shall forever be a perpetual bar, both in law and equity, against the said party cf the first part, his heirs and assigns, and all other persons claiming or to claim the premises, or any part thereof, by, from, or under him, them, or any of them. In "Witness "Whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written. {Signatures.) {Seals.) Signed, Sealed, and Delivered in Presence of State of ) - ss. County. ) On the day of in the year one thousand eight hundred and before me personally came the individuals described in, and who executed the foregoing instrument, and acknowledged that they executed the same as their free act and deed. {Signature.) FORMS OF MORTGAGES, ETC. 565 (ITS.) Mortgage of a Lease. This Indenture, Made the day of in the year one thousand eight hundred and between {name, residence, and occu- pation of mortgagor) party of the first part, and {name, residence, and occupation of mortgagee) party of the second part : Whereas, {name, resi- dence, and occupation of the lessor of the lease to be mortgaged) did, by a certain indenture of lease, bearing date the day of in the year one thousand eight hundred and demise, lease, and to farm let, unto the said party of the first part, and to his executors, adminis- trators, and assigns, all and singular the premises hereinafter mentioned and described, together with their appurtenances : To have and to hold the same unto the said party of the first part, and to his executors, administrators, and assigns, for and during and until the full end and term of years, from the day of and fully to be complete and ended, yielding and paying therefor unto the said {name of the lessor) and to his heirs, executors, administrators, or assigns, the yearly rent or sum of {state the rent, and the times, or terms of payments). And Whereas, The said party of the first part is justly indebted to the said party of the second part, in the sum of dollars, lawful money of the United States of America, secured to be paid by his certain bond or obhgation bearing even date with these presents, in the penal sum of dollars, lawful money as aforesaid, conditioned for the payment of the said first-mentioned sum of {Jtere give the amount of the debt to be paid) as by the said bond or obligation and the condition thereof, reference being there- unto had, may more fully appear. ' Now this Indenture Witnesseth, That the said party of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, accord- ing to the true intent and meaning thereof, and also for and in consideralion of the sum of one dollar, to him in hand paid, by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, assigned, transferred, and set over, and by these presents does grant, bargain, sell, assign, transfer, and set over unto the said party of the second part, the estate or premises leased and transferred by said indenture of lease, that is to say {here describe the prenzzses in the same manner in -which they are described in the lease), Xogtih.e.r: with all and singular the edifices, buildings, rights, members, privileges, and appurtenances thereunto belong- ing, or in anywise appertaining ; and also all the estate, right, title, interest, term of years yet to come and unexpired, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the said demised premises, and every part and parcel thereof, with the appurtenances ; and also the said indenture of lease, and every clause, article, and condition therein expressed and contained. 566 MORTGAGES OF LAND. To Have and to Hold the said indenture of lease, and other hereby granted premises, unto the said party of the second part, his executors, administrators, and assigns, to his and their only proper use, benefit, and behoof, for and during all the rest, residue, and remainder of the said term of years yet to come and unexpired ; subject, nevertheless, to the rents, cove- nants, conditions, and provisions in the said indenture of lease mentioned. Provided Always, And these presents are upon this express condi- tion, that if the said party of the first part shall well and truly pay unto the said party of the second part the said sum of money mentioned in the con- dition of the said bond or obligation, and the interest thereon, at the time and in the manner mentioned in the said condition, according to the true intent and meaning thereof, that then and from thenceforth these presents, and the estate hereby granted, shall cease, determine, and be utterly null and void, anything hereinbefore contained to the contrary in anywise notwith- standing. And the said party of the first part does hereby covenant, grant, promise, and agree to and with the said party of the second part, that he shall well and truly pay unto the said party of the second part the said sum of money mentioned in the condition of the said bond or obligation, and the interest thereon, according to the condition of the said bond or obliga- tion. And that the said premises hereby conveyed now are free and clear of all incumbrances whatsoever, and that the said party of the first part has good right and lawful authority to convey the same in manner and form hereby conveyed. And if default shall be made in the payment of the said sum of money above mentioned, or in the interest which shall accrue thereon, or of any part of either, that then and from thenceforth it shall be lawful for the said party of the second part, and his assigns, to sell, transfer, and set over all the rest, residue, and remainder of the said term of years then yet to come, and all other the right, title, and interest of the said party of the first part, of, in, and to the same, at public auction, according to the act in such case made and provided : and as the attorney of the said party of the first part, for that purpose by these presents duly authorized, constituted, and appointed, to make, seal, execute, and deliver to the purchaser or purchasers thereof, a good and sufficient assignment, transfer, or other conveyance in the law, for the same premises, with the appurtenances ; and out of the money arising from such sale, to retain the principal and interest which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the same premises, rendering the overplus of the purchase-money (if any there shall be) unto the said party of the first part, or his assigns ; which sale, so to be made, shall be a perpetual bar, both in law and equity, against the said party of the first part, and against all persons claiming or to claim the premises, or any part thereof, by, from, or under him or them, or any of them. In Witness V/hereof, The said party of the first part to these presents has hereunto set his hand and seal the day and year first above written, {Signaiitre.) (Seal.) Si:^ned, Sealed, and Delivered in the Presence of FOR^fS OF MORTGAGES, ETC. 567 State of ) |-ss. County of ) On the day of in the year one thousand eight hundred and before me personally came who is known to me to be the individual described in, and who executed the fore- going instrument, and acknowledged that he executed the same as his free act and deed. {Signature.) (179.) Mortgagee's Deed, Tinder a Power of Sale. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and between {name and occupation of the mortgagee) of the County of and State of party of the first part, and {name and occupation of the grantee) of the County of and Slate of of the second part. "Witnesseth., That whereas {name and occupation of the owner and mortgagor who gave to the mortgagee the power now exercised) of the County of and State of did, by a certain deed, dated the day of A.D. 18 , which deed is recorded in the Recorder's office of the County of in the State of on the day of A.D. 18 , in book of at page , grant, sell, and convey to the said party of the first part all the premises hereinafter described, to secure the payment of a certain debt {or note, or bond) in said deed particularly mentioned, and upon certain terms in said deed particularly declared ; and whereas default hath been made in the payment of said debt {note or bond), the said premises were, by said party of the first part, duly advertised for public sale at the door of the court-house in the County of and State of on the day of A.D. 18 , in the manner prescribed by said deed, and were, upon the day and year and at the place last mentioned aforesaid, in pursuance of said notice, sold at public sale, and at said sale the said party of the second part was the highest and best bidder therefor, and bid for the tract first hereinafter named, the sum of dollars. Now, therefore. These presents witness, that the said party of the first part, in pursuance of the power and authority in him vested in and by the said deed, and in consideration of the sum of dollars, to the said party of the first part paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath released and quitclaimed, and doth hereby convey, remise, release, and quitclaim to the said party of the second part, his heirs and assigns forever, all the right, title, and interest, as well in law as in equity, which the said party of the first part hath acquired by virtue of the deed above mentioned, of, in, and to all that certain 568 MORTGAGES OF LAND. tract , piece , or parcel of land situated in the County of and State of and described as follows, to wit, Qiere describe the premises as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging or in anywise appertaining, and the reversions, remainders, rents, issues, and profits thereof ; and also all the estate, right, title, interest, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and any and every part thereof, with the appurtenances, which the said party of the first part acquired by virtue of said deed : To Have and to Hold the aforesaid right, title, and interest of the said party of the first part, unto the said party of the second part, his heirs and assigns forever, as full and absolutely as the said party of the first part can, by virtue of the power and authority in him by said deed vested, con- vey the same. In "Witness Whereof, The party of the first part hath hereto set his hand and seal the day and year first above written. (Sii^nattire of seller^ {Seal.) Signed, Sealed, and Delivered in Presence of State of ^ > ss. County.) Oa the day of eighteen hundred and , before me of the County of in the State of appeared \\ho is personally known to me to be the real person whose name is subscribed to the foregoing instrument of writing, as having executed the same, and then acknowledged the execution thereof as his free act and deed, for the uses and purposes herein mentioned. {Signature^ (180.) Mortgage Deed, to Secure a Bond with "Warrant, in use in Pennsylvania. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between {iia/zn-, residence, and occupation of the debtor who is obligor of the Bond) of the first part, and {tiame, residence, and occupation of the creditor ■who is the obligee of the Bond) of the other part, witnesseth, that Whereas, the said in and by obliga- tion or writing obligatory under hand and seal duly executed, bearing even date herewith, stand bound unto the said in the sum of lawful money of the United States of America, conditioned for the payment of the just sum of lawful money as aforesaid, in together with interest thereon, payable at the rate of six per cent, per annum, FORMS OF MORTGAGES, ETC. 560 until such time as a higlier rate becomes lawful, and immediately thereafter at the highest rate, not exceeding per cent., legally chargeable. Together with all taxes and charges in nature thereof, that maybe laid or levied upon the said obligation, or this indenture of mortgage, or the principal or inter- est moneys thereby secured, immediately upon their assessment, without any fraud or further delay. Provided, However, and it is hereby expressly agreed, that if at any time default shall be made in the payment of interest as aforesaid, for the space of days after any payment thereof shall fall due, or in the payment of any tax or charge as afore- said, for the space of days after notice in writing of its assessment shall be left upon the premises hereinafter described, then and in such case the whole principal debt aforesaid shall, at the option of the said obligee executors, administrators, or assigns, become due and payable immediately ; and payment of said principal debt, and all interest thereon, may be enforced and recovered at once, anything therein contained to the contrary notwithstanding. And Provided Further, however, and it is hereby expressly agreed, that if at any time thereafter, by reason of any default in payment, either of said principal sura at its maturity, or of said interest or of taxes and charges, within the time specified, a writ of fieri facias is prop- erly issued upon the judgment obtained upon said obligation, or by virtue of said warrant of attorney, or a writ of scire facias is properly issued upon this indenture of mortgage, an attorney's commission for collection, viz.: per cent., shall be payable, and shall be recovered in addition to all principal, interest, and taxes then due, besides cost of suit, as in and by the said recited obligation and the condition thereof, relation being thereunto had, may more fully and at large appear. Nov? this Indenture Witnesseth, that the said as well for and in consideration of the aforesaid debtor principal sum of and for the better securing the payment of the same, with interest as afore- said, unto the said executors, administrators, and assigns, in discharge of the said recited obligation, as for and in consideration of the further sum of one dollar unto in hand well and truly paid by the said at and before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, granted, bargained, sold, aUened, enfeoffed, released, and confirmed, and by these presents grant, bargain, sell, ahene, enfeoff, release, and confirm unto the said heirs and assigns, {here describe the land or premises granted, substantially as in Fortn 107). Together with all and singular the ways, waters, water-courses, rights, liberties, privileges, improvements, hereditaments, and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and the reversions and remainders, rents, issues, and profits thereof, Xo Have and to Hold the said hereditaments and prem- S70 MORTGAGES OF LAND. ises hereby granted, or mentioned and intended so to be, with the appurte- nances, unto the said heirs and assigns, to and for the only proper use and behoof of the said heirs and assigns forever. Provided Always, nevertheless, tliat if the siiA {name of the creditor and obligor) heirs, executors, administrators, or assigns, do and shall well and truly pay, or cause to be paid, unto the said executors, administrators, or assigns, the aforesaid debt or principal sum of on the day and time hereinbefore mentioned and appointed for payment of the same, together with interest and taxes as aforesaid, without any fraud or further delay, and without any deduction, defalcation, or abatement to be made of anything, for or in respect of any taxes, charges, or assessments whatsoever, that then, and from thenceforth, as well this present indenture, and the estate hereby granted, as the said recited obligation shall cease, determine, and become void, anything here- inbefore contained to the contrary thereof in anywise notwithstanding. And Provided, Also, that it shall and may be lawful for the said executors, administrators, or assigns, when and as soon as the principal debt or sura hereby secured shall become due and payable as aforesaid, to wit : on the day of Anno Domini one thousand eight hundred and or in case default shall be made for thfe space of days in the payment of interest on the said principal sum, after any payment thereof shall fall due, or in the payment of any tax or charge as aforesaid, for the space of days after notice in writing of its assessment shall be left upon the above described premises, to sue out forthwith a writ or writs of scire facias upon this indenture of mortgage and to proceed thereon to judgment and execution, for the recovery of the whole of said principal debt, and all interest and taxes due thereon, together with an attorney's commission for collection, viz., percent., besides costs of suit, without further stay, any law, usage, or custom to the contrary notwithstanding. In Witness Whereof, The said parties to these presents have hereunto interchangeably set their hands and seals. Dated the day and year first above written. {Seals.) Sealed and Delivered ill the Presence of us, On the day of Anno Domini iS , before me the above named personally appeared and in due form of law acknowledged the! above Indenture of iMortgage to be act and deed, and desired the same might be recorded as such. Witness my hand and official seal the day and year aforesaid. {Signature.) {Seal.) FORMS OF MORTGAGES, ETC. 571 (181.) Bond with Warrant of Attorney, Referred to in the pre- ceding Form ISO. Enow all Men by these Presents, That {natne, residence, and occzipa- tion of the debtor) (hereinafter called the obligor ) held and firmly bound unto {name, residence, and occupation of the creditor) (herein- after called the obligee ) in the sum of lawful money of the United States of America, to be paid to the said obligee certain attorne)', executors, administrators, or assigns, to which payment well and ttuly to be made, do bind and obhge heirs, executors, and administrators, firmly by these presents. Sealed with seal. Dated the day of in the year of our Lord one thousand eight hundred and The Condition of this Obligation is Such, That if the above boun- den obligor , heirs, executors, or administrators, or any of them, shall and do well and truly pay, or cause to be paid, unto the above named ob- ligee , certain attorney, executors, administrators, or assigns, the just sum of lawful money as aforesaid, in together with interest thereon, payable at the rate of six per cent, per annum, until such time as a higher rate becomes lawful, and immediately there- after at the highest rate, not exceeding per cent., legally chargeable, together with all taxes, and charges in nature thereof, that may be laid or levied upon this obligation, or upon the accompanying indenture of mort- gage, or the principal or interest moneys hereby secured, immediately upon their assessment, without any fraud or further delay ; then the above obli- gation to be void, or else to be and remain in full force and virtue : Provided, hovrever, and it is hereby expressly agreed, that if at any time default shall be made in payment of interest as aforesaid, for the space of days after any payment thereof shall fall due, or in the payment of any tax or charge, as aforesaid, for the space of days after notice in writing of its assessment shall be left upon the premises described in the accompanying indenture of mortgage, then and in such case the whole principal debt aforesaid shall, at the option of the said obligee , executors, administrators, or assigns, become due and payable immediately, and payment of said principal debt, and all interest thereon, may be enforced and recovered at once, anything herein contained to the contrary notwithstanding. And Provided Further, however, and it is hereby expressly agreed that if at any time hereafter, by reason of any default in payment, either of said principal sum at its maturity, or of said interest, or of taxes and charges, within the time specified, a writ of fieri facias is properly issued upon the judgment obtained upon this objection, or by virtue of the warrant of attorney hereto attached, or a writ of scire facias is properly 572 ^lOR TGA GES OF L-l A 'D. issued upon the accompanying indenture r£ mortgnge, ai attorney's com- mission for collection, viz., per cent., shall be payable, and shall be recovered in addition to all principal, interest, and t:ix;s then due, Ijesides costs of suit. And it is hereby declared and agreed that the s.iid debt or principal sum of is the same which, by an inden- ture of mortgage of even date herewith, made between the above-named obligor and obligee is secured upon {Si.nialitrL') {Scal^ Scaled and Delivered in the rresetice of lis. To Attorney of the Court of Common Pleas at Philadelphia, in the County of Philadelphia, in the Slate of Pennsvlva- nia, or to any other Attorney of the said Court, or any other Court there or elsewhere. Whereas, in and by a certain obligation bearing even date here- with, do stand bound unto i;i the sum cf lawful money of the United States of America, conditioned for the payment of the just sum of lawful money as aforesaid, in together with interest thereon, payable at the rate of six per cent, per annum, until such time as a higher rate becomes lawful, and immediately tliereafter at the highest rate, not exceeding per cent. legally changeable. To- gether with all taxes and charges in nature thereof that may be laid or levied tipon said obligation, or upon the accompanying indenture of mortgage, or the principal or interest moneys thereby secured, immediately upon their assessment ; it being the same debt or principal sum which, by an indenture of mortgage of even date herewith, made between the above-named obli- gor and obligee is secured upon Provided, however, and it is hereby expressly agreed, that if at any time default shall be made in payment of interest as aforesaid, for the space of days after any payment thereof shall fall due, or in the payment of any tax or charge, as aforesaid, for the space of days after notice in writing of its assessment shall be left upon the premises described in the accompanying Indenture of Mortgage, then and in such case, the whole principal debt aforesaid shall, at the option of the said obligee, executors, administrators, or assigns, become due and payable immediately, and payment of said principal debt, and all interest thereon, may be enforced and recovered at once, any- thing therein contained to the contrary notwithstanding. And Provided Further, however, and it is thereby expressly agreed, that if at any time thereafter, by reason of any default in payment, either of said principal sum at its maturity, or of said interest or of taxes and charges, within the time specified, a writ of fieri facias is properly issued upon the judgment obtained upon said obligation, or by vir- tue of this warrant, or a writ of scire facias is properly issued upon the FORMS OF MORTGAGES, FTC. 573 accompanying indenture of mortgage, an attorney's commission for collec- tion, viz., per cent, shall be payable, and shall be recovered in addition to all principal, interest, and taxes then due, besides costs of suit. These are to desire and authorize you, or any of you, to appear for heirs, executors, or administrators, in the said court or else- where, in an action of debt there or elsewhere brought, or to be brought, against heirs, executors, or administrators at the suit of the said obligee , executors, administrators, or assigns, on the said obligation, as of anytime present, or any other subsequent term or time else- where to be held, and confess judgment thereupon against heirs, executors, or administrators, for the sum of lawful money of the United States of America, debt, besides costs of suit, and an attorney's commission of per cent, in case payment has to be en- forced by process of law, as aforesaid, by non sum informatus, A^iltil dicit, or otherwise, as to you shall seem meet; and for your, or any of your so doing, this shall be your sufficient warrant. And do hereby, for heirs, executors, and administrators, remise, release, and forever quitclaim unto the said obligee , certain attorney, executors, administrators, and assigns, all and all manner of error and errors, misprisions, misentries, defects, and imperfections whatever, in the entering of the said judgment, or any process or proceedings thereon or thereto, or in anywise touching or concerning the same. In Witness Whereof, have set hand and seal this day of in the year of our Lord one thousand eight hundred and {Signatures.) (Seals.) Sealed and Delivered in the Presence of us, (182.) Mortgage Deed in use in Maryland. Th.is Mortgage, Made this day of in the year one thousand eight hundred and by {name, reside7ice, and occupation of the grantor) of County, in the State of Maryland, Witnesseth : Whereas, The said {name of the mortgagor, with his occupation and residence) has given to {name, residence, and occupation of the mortgagee) his promissory note of hand {or bond) {here describe the note or bond or si7}tple obligation to secure which this mortgage is given, by date, amount, time of payment, and other terms, if there are any). Now this Mortgage Witnesseth, That in consideration of the prem- ises, and of the sum of one dollar, the said do grant unto the said in fee-simple, all that lot, tract, parcel, or parcels of land situate in the County and State aforesaid {here describe with care the land or premises mortgaged, as directed in Form 107). 574 MORTGAGES OF LAND. Together -with the buildings and improvements thereupon, and the rights, ways, waters, privileges, appurtenances, and advantages thereto belonging, or in anywise appertaining. Provided, That if the said executors, administrators, or assigns, shall well and truly pay to the said the said sum of on or before the day of one thousand eight hundred and together with the legal interest thereon annually, and shall per- form all the covenants herein on part to be performed, then this mortgage shall be void. And the said {naine of the mortgagor) do covenant and promise to pay to the said on the day of one thousand eight hundred and the said sum of together with the legal interest thereon annually. And the said do hereby further covenant that in case of any default being made in any condition of this mortgage, then the whole mortgage debt hereby intended to be secured shall be deemed due and demandable. ' And the said do further covenant to insure, and, pending the existence of this mortgage, to keep insured, the im- provements on the hereby mortgaged ground, to the amount of at least dollars, and to cause the policy to be effected thereon to be so framed or indorsed as, in case of fire, to inure to the benefit of the said , representatives, or assigns, to the extent of lien or claim hereunder. "Witness, hand and seal the day and year first above written. Test: (Naj/tes of the witnesses.) (Signatures.) {Seals.) State of AIaryland, ') V To WIT. : Harford County, ) I Hereby Certify, That on this day of in the year one thousand eight hundred and before the sub- scriber, a Justice of the Peace of the State of Maryland, in and for Harford County, aforesaid, personally appeared and acknowledged the foregoing mortgage to be act ; and now, at the same time, before me, personally appeared also the within named mortgagee and made oath on the Holy Evangelists of Almighty God that the consideration set forth in the foregoing mortgage is true and bond fide, as therein stated. FORMS OF MORTGAGES, ETC. 575 An Assignment of Mortgage. I hereby assign the above or within mortgage to (the assignee). Witness my hand and seal, this of (Signature) (Seal.) Release on Satisfaction of a Mortgage. I hereby release the above (or within) mortgage. Witness my hand and seal, this day of (Signature) (Seal.) (183.) Mortgage Deed to Secure a Bond, in use in South Carolina. The State of South Carolina. To all -whom these Presents may concern, I (or we) (name, residence, and occupation of grantor or grantors), send greeting: Whereas, the said in and by certain bond or obhgation bearing date the stand firmly held and bound unto (najiie of grantee) in the penal sum of conditioned for the payment of the full and just sum of as in and by the said bond and condition thereof, reference being thereunto had, will more fully appear. Now Know all Men, That the said in consideration of the said debt and sum of money aforesaid, and for the better securing the payment thereof to the said according to the condition of the said bond , and also in consideration of the further sum of three dollars to the said in hand well and truly paid by the said at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, and released, and by these presents do grant, bargain, sell, and release unto the said (describe carefully the land and premises granted, substantially as directed in Form 107.) Together with all and singular the rights, members, hereditaments, and appurtenances to the said premises belonging, or in anywise incident 01 appertaining. To Have and to Hold all and singular the said premises unto the said heirs and assigns forever. And do hereby bind heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto the said heirs and assigns, from and against heirs, executors, administrators, and assigns, lawfully claiming, or to claim the same, or any part thereof. And it is agreed, by and between the said parties, that the said mortgagor, heirs, executors, or administrators, shall and will forthwith insure the house and buildings on said lot, and keep the same insured, from loss or 5;6 MORTGAGES OF LAND. damage by fire, and assign the policy of insurance to tlie said executors, administrators, or assigns ; and in case he or they shall at any time neglect or fail so to do, then the said mortgagee, execu- tors, administrators, or assigns, may cause the same to be insured in their own name, and reimburse themselves for the premium and expense of such insurance under the mortgage. Provided Always, nevertheless, and it is the true intent and meaning of the parties to these presents, that if the said do and shall well and truly pay, or cause to be paid, unto the said the said debt or sum of money aforesaid, with the interest thereon, if any shall be due, according to the true intent and meaning of said bond and condition there- under written, then this deed of bargain and sale shall cease, determine, and be utterly null and void, otherwise it shall remain in full force and vigor. And it is agreed, by and between the said parties, that to hold and enjoy the said premises until default of payment shall be made. Witness hand and seal this day of , in the year of cur Lord one thousand eight hundred and and in the year of the sovereignty and independence of the United States of America. {Signatures.) {Seals.) Signed, Sealed, and Delivered in the Presence of. State of South Carolixa, County. Personally appeared before me, and made oath, that saw the within named sign, seal, and as act and deed, deliver the within written deed : and that with witnessed the execution thereof. Sworn to before me this day of iS (Signature.) State of South Carolina, ^ y Renunciation of Dower. C0Ux\TY. ) I, do hereby certify unto all whom it may concern, that wife of the within named did this day appear before me, and upon being privately and separately examined by me, did declare that she does freely, voluntarily, and without any compulsion, dread, or fear of any person or persons whomsoever, renounce, release, and forever relinquish unto the within named heirs and assigns, all her interest and estate, and also all her right and claim of dower, of, in, or to all and singular the premises within mentioned and released. Given under my hand and seal, this day of Anno Domini iS {Signatztre.) FORMS OF MORTGAGES, ETC. 577 (1S4.) Mortgage Deed -with Power of Sale, to Secure Debt, in use in Georgia. Georgia, > County. \ This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between {name and occupation of gratitor or grantors) of the County of of the one part, and [iiame and occjipatio7i of grantee or grantees)oi the County of of the other part : Witnesseth, That the said for and in consideration of the sum of in hand paid, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, ha granted, bargained, sold, aliened, conveyed, and confirmed, and by these presents do grant, bargain, sell, aliene, convey, and confirm unto the said heirs and assigns, all {here describe the land or premises granted, substan- tially as directed in Form 107). To Have and to Hold the said with all and singular the rights, members, and appurtenances thereunto appertaining, to the only proper use, benefit, and behoof of the said heirs, executors, admin- istrators, and assigns, in fee-simple ; and the said the said bargained, unto the said heirs, executors, administrators, and assigns, against the said heirs, executors, and administrators, and against all and every other person or persons, shall and will wari'ant and forever defend by virtue of these presents. This Conveyance is intended to operate as provided by an Act of the General Assembly of said State, approved December 12, 1871, entitled "An Act to provide for sales of property in this State to secure loans and other debts," and the Act of 1872, amendatory thereof; the debt hereby secured being and the said hereby agrees that if the debt to secure which this deed is made is not promptly paid at maturity according to the tenor and effect of the said made at the execution of this deed, then the said may, and by these presents authorized to sell at public outcry to the highest bidder, for cash, all of said property, or a suffi- ciency thereof to pay said indebtedness with the interest thereon and the costs of the proceeding, after advertising the time, place, and terms of sale in newspaper for days. And the said may make to the purchaser or purchasers of said property good and sufficient titles in fee-simple to the same, thereby divesting out of the said all right, title, and equity that may have in and to said property, and vesting the same in the purchaser or purchasers aforesaid. The proceeds of said sale are to be applied first to the payment of the said debt and interest and the expenses of this proceeding, the remainder, if any, paid to In Witness Whereof, The said and his wife, who 37 578 MORTGAGES OF LAND. hereby consents to the execution of this deed, have hereunto set their hands and affixed their seals, and dehvered these presents, the day and year first above written. {Signatures^ {Seals) Signed, Sealed, and Delivered in Presence of us (186.) Mortgage to Secure a Promissory Note, in use in Kansas. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and between {name and occu- pation of grantor or grantors) of in the County of {residence) and State of , of the first part, and {name, residence, and occupation of grantee or grantees) of the second part : witnesseth, that the said part of the first part, in consideration of the sum of dollars, to duly paid, the receipt of which is hereby acknowledged, ha sold, and by these presents do grant, bargain, sell, and mortgage to the said part of the second part, heirs and assigns forever, all that tract or parcel of land situate in the County of and State of Kansas, described as follows, to wit: {here describe accurately the land or premises granted, S7(bstantially as directed in Form \of), with the appurtenances, and all the estate, title, and interest of the said part of the first part therein. This grant is intended as a mortgage to secure the payment of the sum of dollars, according to the terms of certain . And this conveyance shall be void if such payment be made as is herein specified. But if default be made in said payment, or any part thereof, as provided, then this conveyance shall become absolute, and it shall be lawful for said part of the second part, executors, administrators, and assigns, at any time thereafter, to sell the premises hereby granted, or any part thereof, in the manner prescribed by law ; and out of all the moneys arising from such sale, to retain the amount then due for principal and interest, and also for statutory damages in case of protest, together with the costs and charges of making such sale, and per cent, on the amount secured by this mortgage, as a reasonable attorney's fee for fore- closure hereof, and the overplus, if any there be, shall be paid by the part making such sale, to the said heirs or assigns ; and for the said consideration, the said part of the first part hereby waive appraisement of said real estate. In "Witness "Whereof, The said part of the first part ha hereunto set hand and seal the day and year last above written. (Signatures) {Seals) Signed, Sealed, and Delivered in the Presence of State of Kansas, ) f-ss. County of ) Be it Remembered, that on this day of A.D. i8 before me, in and for said County and State, came to FORMS OF MORTGAGES, ETC. 579 me personally known to be the same person who executed the foregoing instrument, and acknowledged the execution of the same. In Witness Whereof, I have hereunto subscribed my name and affixed my official seal on the day and year last above written. {Signature) {Seal.) (186.) Mortgage Deed in use in Missouri. Know all Men by these Presents, That {name and occupation of the grantor or mortgagor and Ms wife) of the County of , in the Stater of Missouri, ha this day, for and in consideration of the sum of dollars to the said in hand paid, by ijiame and occupation of mortgagee) of the County of in the State of , the receipt whereof is hereby acknowledged, granted, bargained, and sold, and by these presents do grant, bargain, and sell unto the said the following described tracts or parcels of land, situate in the County of , in the State of Missouri, that is to S3.y {here describe the premises mortgaged as directed in Form 107). To Have and to Hold the premises hereby conveyed, with all the rights, privileges, and appurtenances thereto belonging, or in anywise appertaining unto the said heirs and assigns forever, upon this express condition : Whereas, the said on the day of 18 , made, executed, and delivered to the said certain promissory note , in words and figures following, to wit : No-w, if the said executor , or administrator , shall pay the sum of money specified in said note, and all the interest that may be due thereon, according to the tenor and effect of said note, then this conveyance shall be void ; otherwise, it shall remain in full force and virtue in law, and the said or executor , or administrator may proceed to sell the property hereinbefore described, or any part thereof, at public vendue, to the highest bidder, at in the County of for cash in hand, first giving days' public notice of the time, terms, and place of sale, and of the property to be sold, by advertisement ; and upon such sale, and the payment of the purchase money, shall execute and deliver a conveyance of the property so sold to the purchaser thereof ; and any state- ment of fact or recital by the said in such conveyance, in relation to the advertisement, sale, receipt of the purchase money, or execu- tion of said conveyance, shall be received as prima facie evidence of the truth thereof, and the said shall, with the proceeds of the sale aforesaid, pay, first, the expenses of this trust, and, next, whatever may be in arrear and unpaid on said note, whether of principal or interest, and the balance (if any) shall be paid over to the said or his legal repre- sentatives. In Witness Whereof, have hereunto subscribed name , and affixed seal this day of 18 {Signatures) {Seals.) 58o MORTGAGES OF LAND. State of Missouri, County of Be it Remembered, That and , who personally known to the undersigned, a within and for said county, to be the person whose name subscribed to the foregoing deed, as part thereto, this day appeared before me and severally acknowledged that executed and delivered the same as voluntary act and deed, for the uses and purposes therein mentioned. And the said beino- by me made acquainted with the contents of said deed, acknowledged, on an examination apart from her said husband, that she executed the same, and relinquishes her dower in the real estate therein mentioned, freely, and with- out compulsion or undue influence of her said husband. Given under my hand this day of A.D. i8 {Signature^ (187.) Short Deed of Mortgage in use in Indiana. This Indenture Witnesseth : That I {name and occupation of grantor or grantors) of (residence) County, in the State of do hereby mortgage and warrant to {name and occupation of grantee or grantees) of {residence) County, in the State of the following real estate, in County, in the State of Indiana, to wit: {here describe the land or premises granted substantially as directed in Form lay), to secure the payment when become due of and the mortgagor expressly agree to pay the sum of money above secured, without relief from valuation laws. In Witness Whereof, The mortgagor ha hereunto set hand and seal this day of A.D. i8 {Signatures.) {Seals.) State of Indiana, County. Before Me, a in and for said County, this day of , i8 , acknowledged the execution of the annexed mortgage. Witness my hand and seal, this day of , l8 ■{Sig?iature.) {Seal.) (188.) Mortgage without Release of Dower or Homestead, in use in Wisconsin. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and between {na?ne and occtipation of grantor or grantors) of the County of State of of the first part, and {name and occupation of the grantee or SS. FORMS OF MORTGAGES, ETC. 581 grantees) of the County of and State of of the second part, witnesseth, that the said part of the first part, for and in consideration of the sum of dollars to in hand paid by the part of the second part, the receipt of which is hereby acknowledged, ha granted, bargained, and sold, and by these presents do grant, bargain, sell, and convey unto the said part of the second part, and to heirs and assigns forever, all the following described real estate situate, lying, and being in the County of State of and known as being {here describe with sufficient care the land or premises granted, substantially as directed in Form 107). To Have and to Hold the above bargained premises with the appurte- nances, unto the said part of the second part, heirs and assigns forever, Provided ahvays, and these presents are upon this express condition, that if the said part of the first part, heirs, executors, adminis- trators, and assigns, shall well and truly pay, or cause to be paid, to the said part of the second part, heirs, executors, administrators, or assigns the sum of according to the condition of certain bearing date executed by the said part of the first part, to the said part of the second part, as collateral security, then these presents and the said shall cease and be null and void. And the said do further covenant and agree, that will pay all taxes and assessments of every nature that may be assessed on said premises, previous to the day appointed in pursuance of any law of the" State for sale of lands for taxes. And also will pay the sum of dollars, as Solicitor's fees, in case of foreclosure of this mortgage, by reason of the non-performance of any of the conditions hereof by said part of the first part. And in case of the non-p?.yment of said sum, or any part thereof, at the time or times above limited for the payment thereof, or in case of the non-payment of any taxes that may be assessed on said premises in manner aforesaid ; then, and in either case, it shall be lawful for tlie said part of the second part, heirs, executors, administrators, or assigns, and the said part of the first part, do hereby covenant and agree, and by these presents empower and author- ize the said part of the second part, heirs, executors, administrators, or assigns, to grant, bargain, sell, release, and convey the said premises, with the appurtenances thereunto belonging, at public auction or vendue, and on Buch sale to make and execute to the purchaser or purchasers, his, her, or their heirs and assigns forever, good, ample, and sufiScient deeds of convey- ance in the law, pursuant to the statute in such cases made and provided ; and out of the moneys arising from such sale to retain the principal and interest which shall then be due on the said together with the costs and charges, and the said sum of dollars. Solicitor's fees, as aforesaid ; rendering the surplus money, if any there be, to the part of the first part, heirs, executors, administrators, or assigns, after deducting the costs of such vendue as aforesaid. 582 MORTGAGES OF LAND. In WitrLess Whereof, the said part of the first part ha hereunto set hand and seal , the day and year first above written. (Signatures^ (Seals.) Signed, Sealed, and Delivered in Presence of State of ^ )■ ss. County of ) Be it Remembered, That on the day of l8 , personally came before me the above named to me known to be the person who executed the foregoing mortgage, and acknowledged execution thereof to be free act and deed, for the uses and purposes therein mentioned. (Signature^ (Seal.) (189.) Mortgage Deed, with Release of Homestead and Dower, to Secure the Payment for Premises Sold, in use in Iowa, Know all Men by these Presents, That ( here insert name and occupa- tion of grantor or grantors) of County and State of in consideration of the sum of dollars, in hand paid, do hereby sell and convey unto (name and occupation of grantee or grantees) of County and State of the following described real estate, situated in the County of and State of to wit : (Jiere describe carefully the land or premises granted, substantially as directed in Forjii 107), containing acres, more or less, and hereby release all right of homestead and dower interest therein, and warrant the title thereto against the lawful claim of all persons whomsoever. The above sale and conveyance is however made upon the following express conditions : That if shall pay or cause to be paid the sum of dollars, according to the tenor and effect of certain promissory note , described as follows : bearing even date herewith and payable to the order of said with interest thereon from at the rate of per cent, per annum, payable annually, then the above sale and conveyance shall be void, but that otherwise it shall be and remain in full force and effect. And also agree that the failure to pay promptly when due any part of the moneys hereby secured, or any interest accruing thereon, according to the terms of said promissory note , or allowing any taxes assessed upon any part of the premises above described to become delinquent and remain unpaid, or permitting said premises or any part thereof to be sold for taxes, shall cause the entire principal sum hereby secured, and all interest accrued thereon, to become immediately due and payable, and the said may thereupon proceed at once to fore- close this mortgage for such entire principal sum, accrued interest and costs. And further agree in case of such foreclosure to pay a reasonable FORMS OF MORTGAGES, ETC. 583 sum as attorney's fee, to be by the court fixed and determined, for fore- closing the same, which fee shall be included in the judgment in such fore- closure case. This mortgage is given to secure the purchase money of the premises hereinbefore described, and creates a lieu for purchase money upon said premises in favor of said mortgagee. Dated this day of A.D. 18 . {Signatures.) {Seals.) State of Iowa, ^ >- ss. County, ) Be it Remembered, That on this day of A.D. , before the undersigned, a within and for said County, personally appeared personally known to me to be the identical person whose name affixed to the above mortgage, as grantor thereto, and acknowledged the execution of the same to be voluntary act and deed. Witness my hand and seal. {Signature.) {Seal.) (190.) Mortgage Deed in use in Louisiana. [This being a pecuhardeed, presenting some unusual difficulties in filling up the blanks, it is thought best to give a full copy of a carefully-prepared deed, as the same was drawn and executed in accordance with the law of Louisiana.] State of Louisiana, Parish and City of New Orleans. Be it BJiown, That on this third day of June, in the year of our Lord one thousand eight hundred and seventy and of the independence of the United States of America, the ninety-fourth. Before Me, Andrew Hero, Jr., a Notary Public in and for the Parish and City of New Orleans, State of Louisiana, duly commissioned and qualified, and in the presence of the witnesses hereinafter named and undersigned. Personally Came and Appeared, — Antonio Corbett, of this city, who declared that he is justly and truly indebted unto Jatnes Thompson, also of this city, in the sum of eight hundred dollars, borrowed money this day had : in settlement and as evidence thereof the said Antonio Corbett has made and furnished his promissory note for like sum of eight hundred dollars, drawn to the order of and indorsed by himself, dated this day, and made payable at twelve months after date, with interest at the rate of eight per cent, per annum, from and after maturity, if not then paid, until final payment, which said note, after having been paraphed by me, the said Notary, to identify it, herewith, was delivered to the said Thompson, who hereby acknowledges the receipt thereof. Now, in order to secure the full and punctual payment of the said note, 584 MORTGAGES OF LAND. in capital and interest, at maturity, the said Corbett moreover declared that he docs by these presents specially mortgage and hypothecate in £avor of the said yantcs Tlwmpson, Ids heirs and assigns, and of any and all such person or persons as may hereafter be the holder or holders of the said note, the following described property, to wit : A certain lot cf grouiid, together luith the bttildings and improvements thereon^ and all rights and privileges thereto belonging, situate in the Faubourg Lafayette, Fourth District of this city, in the square numbered two hundred and eighty fve, lohich is boujided by Liberty [late Ellen), Josephine, St. Andrew [formerly Gormley^s Canal), and Franklin [late Fulton Avenue) streets, and desigjiatcd as lot number six on a plan of the former city of Lafayette, and a sketch drawn by Hugh Grant, surzuyor, under date of the lyh of March, 1S4S, aiui annexed for reference to an act passed before L, R. Kenny, late a iVotary in said parish of fefferson, which said lot measures, in Ameri- ca7i measure, twenty-seven feet front on said Liberty [late Ellen) street, bv one hundred and twenty feet in depth, between parallel lines, being the same property which said mortgagor atijmred by purchase from the zoidow and heirs of Llenry Mujnford, by an act passed before JVillia?n Shannon, a Xotary in this city, on the I2th day of Ulareh, eighteen hundred and sixty-seven. The said property is so to remain mortgaged and hypothecated until the full and final payment of the aforesaid note in capital and interest; the said mort- gagor hereby binding himself and his heirs not to alienate, deteriorate, nor encumber the same to the prejudice of these presents, which are accejoted by said mortca^cc. And the said Corlett farther declared that he doi-j- by these presents bind and obligates liimselfXa cause all and singular the buildings and improvements on the lot of ground ■s.ioxi. described, to be insured and kept insured against the risk of fire, l:y one of the insurance companies of this city, in the sum of one thotisand dollars, until the full and final payment of the afore described note, and to transfer and deliver unto the said mortgagee the policy or policies of such insurance or insurances ; in default whereof, said mortgagee, and any and all holders of said note, is and are hereby authorized to cause such insurance or insurances to be made and effected at the cost, charge, and expense of the said mortgagor. But this clause shall not be construed as obligatory on such holder or holders, or as making them liable for any loss, damage, or injury which may result from the non-insurance of the said buildings. And the said mortgagor further declared that lie Aoes by these presents consent, agree, and stipulate that in the event of the said note not being punctually paid at maturity, it shall be lawful for and he does hereby author- ize the said mortgagee, or any other holder or holders thereof, to cause all and singular the property hereinbefore described, and herein mortgaged, to be seized and sold under executory process (issued by any competent court) without appraisement, to the highest bidder, payable in cash ; the said mort- gagor herein expressly dispensing with all and every appraisement thereof, and by these presents waiving and renouncing the benefit of appraisement, and of all laws or parts of laws relative to the appraisement of movable or immovable effects, etc., seized and sold under executory or other legal FORMS OF MORTGAGES, ETC. 585 process, the said mortgagor hereby confessing judgment in favor of said mortgagee, and such person or persons who may be the holder or holders of said note for the full amount thereof, capital and interest, together with all costs, charges, and expenses whatsoever. And the said mortgagor further declares that he does, by these presents, bind and oh]Ag?Lt& hhnself and his heirs to pay and reimburse unto said mort- gagee, and such person or persons as may be the holder or holders of said note, all such lawyer's or attorney's fees, together with all such costs, charges, and expenses as said mortgagee, or any such holder or holders, shall or may incur or pay, in the event of the non-payment of said note at maturity : said attorney's fees, however, to be fixed at Jive per cent, on the amount so in suit. Now, to secure the faithful performance of the foregoing obligation, and the reimbursement and payment of the said lawyer's or attorney's fees, costs, charges, and expenses aforesaid, and the reimbursement and payment of all premium or premiums as shall be paid by the said mortgagee, or any holder or holders of the aforesaid jiote, in causing insurance to be effected, on default of said mortgagor as aforesaid, the said mortgagor, by these presents, further specially mortgages and hypothecates the hereinbefore described property unto and in favor of said mortgagee, and all holders of said note. According to the annexed certificate of the Recorder of mortgages in and for this city and parish, of even date herewith, the afore described property is free from all mortgages or other ijicitmbrances in the name of said Corbett, save the privilege for drainage, and tlie mortgage wliich he granted in favor of his vendors by his said act of purchase, to secure the payment of three hundred dollars and interest. And here the said Campbell declared, that as last holder ajid owner, he has received payme:it in fdl, at the execution hereof, of a certain promissory note for the sum of three /lundred dol- lars, drawn by said Corbett, to the order of and indorsed by himself, dated the tivelfth day of March, eighteen hundred and sixty-seven, and Tuade payable at twelve months after date, with interest at the rate of eight per cent, per annum from date ztntil final payment : Said note representing the amount, payment ofwhicJi is secu-red by the above recited special mortgage : and said Campbell 7noreover declared that in consideration of the payment, he Jiereby cancels and annuls said mortgage, and authorizes and reqiures the Recorder of Mortgages iii and for this parisJi to erase the inscription thereof from his books : Said note was defaced and cancelled by me. Notary, at the execution hereof. And now to these presents personally came and appeared Madam Mary Corbett, the wife, of lawful age, of the said Antonio Corbett, who, after hav- ing taken cognizance of the foregoing act, which I, the said Notary, care- fully read and explained to her, declared and said that she approves and rat- ifies the same, and that it is her wish and intention to release in favor of the said mortgagee the property herein described from the matrimonial, dotal, paraphernal, and other rights, and from any claims, mortgages, or privileges to which she is or may be entitled, whether by virtue of her marriage with her said husband ox otherwise. 586 MORTGAGES OF LAND. Whereupon I, the said Notary, did inform tlie said Mrs. Corbett, apart and out of tlie presence and liearing of her husband, that by the laws of this State, the wife has a legal mortgage on the property of her husband : First, for the restitution of her dowry, and for the reinvestment of the dotal property sold by her husband, and which she brought in marriage, reckon- ing from the celebration of the marriage. Secondly, for the restitution and reinvestment of the dotal property by her acquired since marriage, whether by succession or donation, from the day the succession was opened, or the donation perfected. Thirdly, for nuptial presents. Fourthly, for debts by her contracted with her husband. And fifthly, for the amount of her paraphernal property alienated by her, and received by her husband, or oth- erwise disposed of for his individual interest : That in malting her intended renunciation she would deprive herself irrevocably and forever of all rights of reclamation against the property herein described, whether under mort- gage privilege, or otherwise. And the said Mrs. Corbett did thereupon declare unto me. Notary, that she was fully aware of and acquainted with the nature and extent of the matrimonial, dotal, paraphernal, and other rights and privileges thus secured to her by law on the property of her said husband, and that she neverthe- less did persist in her intention of renouncing, and does formally renounce, not only all the rights, claims, and privileges hereinbefore enumerated and described, but all others of any nature and kind whatever, to which she is, or may be, entitled by any laws now or heretofore in force in the State of Louisiana. And the said Antonio Corbett being now present, aiding, and authorizing the said Mrs. Corbett in the execution of these presents, she, the said Mrs. Corbett, did again declare that she did and does hereby make a formal renun- ciation and relinquishment of all her said matrimonial, dotal, paraphernal, and other rights, claims, and privileges, in favor of said mortgagee, binding herself 2in6i her heirs at all times to sustain and acknowledge the validity of this renunciation. Thus Done and Passed, in my office at New Orleans aforesaid, in the presence of Paul A. Roberts and George Benson, witnesses, both of this city, who hereunto sign their names with the parties, and me, the said Notary, the day and date aforesaid, said Mistress Corbett not knowing how to write or sign hc> name, having hereto made her 7nark, after the same had been read and explained to her by me, Notary. Original signed : her Jas. Campbell, Mary X Corbett, viark. Ceo. Bayley, Antonio Corbett, P. A. Winsor. {Seal) Andrew Hero, Jr., Notary Public. A true copy of the original, on file, and of record in my office. Andrew Hero, Jr., Not. Pub. New Orleans, La., March 31, 1873. FORMS OF MORTGAGES, ETC. 587 (191.) Satisfaction of Mortgage, in use in New Jersey. State of New Jersey, County of This is to Certify, That a certain indenture of mortgage, bearing date the day of . one thousand efght hundred and made and executed by {name, residence, and occupation of mortgagor) to {name, residence, and occupation of mortgagee) to secure the payment of dollars, and in the office of the of the County of in Liber of Mortgages, page on the day of In the year one thousand eight hundred and at o'clock in the noon, has been paid and satisfied, and may be discharged of record. ■Witness hand and seal the day of A.D. 18 Sealed and Delivered in Presence of State of New Jersey, (Signatures) {Seals.) ■ ss. County of I, one of the do hereby certify that on the day of A.D. one thousand eight hundred and before me personally appeared who, I am satisfied, the grantor mentioned in, and who executed the within certificate, and to whom I first made known the contents thereof; that thereupon acknowledged that had signed, sealed, and delivered the same as voluntary act and deed. upon a private examination, apart from her hus- band, before me, acknowledged that she had signed, sealed, and delivered the same as her voluntary act and deed, freely, without any fear, threats, or compulsion of her husband. {Signature.) {Seal.) (192.) Release of Deed of Trusty in use in Colorado. Know all Men by tliese Presents, That whereas {name, residence, and occupation of the mortgagor) of the County of in the State of Colorado, by his certain deed of trust, dated the day of A.D. iS and duly recorded in the office of the County Clerk and Recorder of County, in the State of Colorado, on the day of A.D. 18 in book of said County Records, on page con- veyed to the undersigned {naj/ie and occupation of trustee in the trust deed) of the County of in the State of Colorado, as trustee certain real estate in said deed of trust described, in trust to secure to the payment of certain promissory note with interest, and all charges thereon, as in said deed of trust mentioned. 588 MORTGAGES OF LAND. And Whereas, The said ha paid and fully satisfied said note together with all interest and charges thereon, according to its tenor ; Now, Therefore, At the request of the said as aforesaid, and in consideration of the premises, and in the further consideration of the sum of one dollar, to me in hand paid by the said the receipt whereof is hereby acknowledged, I trustee as aforesaid, do hereby remise, release, and forever quitclaim unto him, the said and heirs and assigns forever, all the right, title, and interest which I-have in and to the said real estate, as the trustee in said deed of trust mentioned ; and more particularly described as follows, to wit : {describe tlie land or premises mortgaged and noiv released, as they are described in the trust deed or jnort- gage) situate, lying, and being in the County of and State of Colorado. To Have and to Hold the same, together with all and singular the privileges and appurtenances unto the said his heirs and assigns forever. And further, that the said trust deed is, by these presents, to be considered as fully and absolutely released, canceled, and forever discharged. Witness my hand and seal, this day of A.D. i8 (Signature.) {Seal.) Signed, Sealed, and Delivered in the Presence of State of Colorado, ^ >-ss. County of ) I, in and for said county, in the State aforesaid, do hereby certify that personally known to me as the person whose name is subscribed to the annexed deed, appeared before me this day in person- and acknowl- edged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. Given under my hand and seal, tjiis day of A.D. i8 {Signature) {Seal.) (193.) Brief Release of Mortgage, in use in Kansas. In consideration of the payment of the debt named therein, I release the mortgage made by to me, which is recorded in Book of Mortgages, page of the Records of Count}-, Kansas. Witness my hand and seal, this day of if {Signature) {Seal) State of , > )- ss. County. ) On this day of A.D. i8 before me, a in and for said County, personally came to me personally known to be the identical person whose name is affixed to the above release as FORMS OF MORTGAGES, ETC. 589 maker, and acknowledged the execution of the same to be his voluntary act and deed. "Witness my hand and seal the day and year last above written. (Signature) {Seal.) (194.) Release of a Trust Deed Mortgage at the Heqixest of the Creditor, ia use in "Virginia and "West Virginia. TMs Deed, Made this day of in the year one thousand eight hundred and between {name, residence, and occu- pation of the party of the first part in the original trust deed) of the of the first part, and {name of the party of the second part in the original trust d^ed) of the of the second part, and {name of the party of the third part in the trust deed) of the of the third part. "Whereas, The said in order to secure the said the payment of the sum of did, by deed bearing date on the day of 18 recorded in the office of the Clerk of convey to the said heirs and assigns, certain estate described in the said deed as follows : {here describe the land or prem- ises mortgaged and now released, in the same way as in the trust deed) and the said sum of money having been fully paid to the said he the said ha requested that the estate conveyed by the said deed of trust to the said in the said property hereinbefore men- tioned and described, be now released to the said This deed, therefore, witnesseth, that for and in consideration of the prem- ises, as well as of the sum of five dollars, the said with the consent of the said signified by signing and sealing this deed, do release to the said all claim upon the said property. "Witness the following signatures and seals. {Signatures) {Seals.) State of Virginia. of To wit : I, for the aforesaid, in the State of Virginia, do certify that whose name signed to the within writing, bearing date on the day of i8 ha acknowledged the same before me in my aforesaid. Given under my hand this day of 18 {Signature) {Seal.) (195.) Satisfaction of Mortgage, in use in Minnesota. Kno'W all Men by these Presents, That I {or we) {name, residence, and occupation of assignee or assignees) do acknowledge full payment and satis- faction of a certain indenture of mortgage executed by to datiid the day of 18 , and recorded 590 MORTGAGES OF LAND. in the office of Register of Deeds for tlie County of State of Minnesota, on tlie day of l8 , in book of mort- gages, page . Said mortgage was given upon tlie following described real estate, situate in the County of and State of Minnesota, viz. : {describe the land or premises mortgaged and released, stibstantially in the same way as they are described in the mortgage). If the mortgage has been assigned, the assignee must insert tite followijig clause in brackets. [Which said mortgage was on the day of A.D. l8 , duly assigned and transferred by the said {name of the mortgagee") to {the name of the assignee) by written assignment, which was on the day of A.D. i8 , duly recorded in said office of Register of Deeds for the said County of in book of mortgages, page {here enujnerate in a similar way any subse- qrtent assignments of the mortgage so as to show that it is now in the hands of the releasor.] And do hereby authorize and require the Register of Deeds of the said County of to cancel and discharge the same of record in his office. Witness hand and seal , this day of A.D. i8 . In Presence of {Signatures.) {Seals.) State of Minnesota, ) V ss. County of ) On this day of A.D. i8 , came before me to me personally known to be the identical person described in and who executed the within satisfaction deed acknowledged that executed the same freely and voluntarily for the uses and purposes therein expressed. Notary Public, Minnesota. (196.) Assignment of Mortgage, in use in Michigan. Know all Men by these Presents, that I {name, residence, and occu- pation of assignor) of the first part, for and in consideration of the sum of lawful money of the United States of America, to in hand paid by {name, residence, and occupation of assignee) of the second part, at or before the ensealing or delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer, and set over unto the said part of the second part, a certain indenture of mortgage, bearing date the day of one thousand eight hundred and made by and between {here describe carefully the mortgage assigned, giving the names of the parties and the description of the premises mortgaged, as described in the mortgage). And recorded in the office of the Register of Deeds of the County of , and State of Michigan, in Liber of Mortgages, at page with all and singular the premises therein mentioned and described, together with the {note, bond, or debt) or obUgation therein also mentioned, and the FORMS OF MORTGAGES, ETC. 5gi moneys now due, or to become due, and the interest that may hereafter grow due thereon. To Have and to Hold the same unto the part of the second part heirs and assigns forever, subject only to the proviso in the said indenture of mortgage mentioned. And do hereby authorize and appoint the said part of the second part, true and lawful attorney, irrevocable, in name, or otherwise but at proper costs and charges, to have, use, and take all lawful ways and means for the recovery of the sum or sums of money now due and owing, or hereafter to become due and owing, upon the said and mortgage ; and in case of payment, to give acquittance or other sufficient discharge, as fully as might or could do if these presents were not made ; and do hereby for heirs, executors, and administrators, covenant, promise, and agree to and with the said part of the second part, that there is due upon the said and mortgage the sum of and that have good right and lawlut authority to grant, bargain, and sell the same in manner aforesaid. Sealed and delivered the day of i8 . In Presence of (Signatures) {Seals.) State of Michigan, ■) y ss. County of ) On this day of A.D. one thousand eight hundred and before me, a in and for said County, personally appeared to me known to be the same person described in and who executed the within instrument, and acknowledged the same to be free act and deed. {Signature.) (197.) Deed of Mortgage in use in New York. This Indenture, Made the day of in the year one thousand eight hundred and between {name, residence, and occupation of the mortgagor') of the first part, and {name, residence, and occupation of the mortgagee) of the second part. Whereas, the said {name of the mortgagor) justly indebted to the said part of the second part, in the sum of lawful money of the United States, secured to be paid by certain bond or obliga- tion bearing even date with these presents, in the penal sum of lawful money as aforesaid, conditioned for the payment of the said first mentioned sum of lawful money as aforesaid, to the said part of the second part, executors, administrators, or assigns, on the day of which will be in the year one thousand eight hundred and and interest thereon to be computed from at and after the rate of per cent, per annum, to be paid . And it is thereby expressly agreed, that should 592 MORTGAGES OF LAND. any default be made in the payment of the said interest, or of any part thereof, on any day whereon the same is made payable, as above expressed, or should any tax or assessment be hereafter imposed upon the premises hereinafter described and become due or payable, and should the said interest remain unpaid and in arrear for the space of {usually thirty) days, or such tax or assessment remain unpaid and in arrear for {usually ninety days) then and from thenceforth, that is to say, after the lapse of either one of said periods, as the case may be, the aforesaid principal sum, with all arrearage of interest thereon, shall, at the option of the said part of the second part, administrators or assigns, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired, anything thereinbefore con- tained to the contrary thereof in anywise notwithstanding. As by the said bond or obligation, and the condition thereof, reference being thereunto had, may more fully appear. Now this Indenture "Witnesseth, That the said part of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar to in hand paid by the said part of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, ha granted, bargained, sold, aliened, released, conveyed, and confirmed, and by these presents do grant, bargain, sell, aliene, release, convey, and confirm unto the said part of the second part, and to and assigns forever, all {here insert a description of the prctnises mortgaged, as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging, or in anywise appertaining, and the rever- sion and reversions, remainder and remainders, rents, issues, and profits thereof. And also, all the estate, right, title, interest property, possession, claim, and demand whatsoever, as well in law as in equity, of the said part of the first part, of, in, and to the same, and every part and parcel thereof, with the appurtenances : To Have and to Hold the above granted, bargained, and described premises, with the appurtenances unto the said part of the second part, heirs and assigns, to their own proper use, benefit, and behoof forever. Provided always, and these presents are upon this express condition, that if the said part of the first part, heirs, executors, or administra- tors, shall well and truly pay unto the said part of the second part, executors, administrators, or assigns, the said sum of money mentioned in the condition of the said bond or obligation and the interest thereon, at the time and in the manner mentioned in the said condition, according to the true intent and meaning thereof, that then these presents, and the estate hereby granted shall cease, determine, and be void. FORMS OF MORTGAGES, ETC. 593 And the said heirs, executors, and administrators, do covenant and agree to pay unto the said part of the second pnrt, execu- tors, administrators, or assigns, the said sum of money and interest as mentioned above, and expressed in the condition cf the said bond. And if default shall be made in the payment cf the said sura of money above mentioned, or the interest that may grow due thereon, or of any part thereof, or of the taxes or assessments on the premises hereby granted, that then and from thenceforth it shall be lawful for the said part of the second part executors, administrators, and assigns, to enter into and upon a.l and singular the premises hereby granted or intended so to be, and to sell and dispose of the same and all benefit and equity of redemption of tlie said part of the first part, heirs, executors, administrators, or assigns therein, at public auction, according to the act in such case made and pro- vided. And as the attorney of the said part of the first part, for that purpose by tliese presents duiy authorized, constituted, and appointed, to make and deliver to the purchaser or purchasers thereof, a good and suffi- cient deed or deeds of conveyance in the law for the same, in fee-simple, and out of the money arising, from such sale, to retain the principal and interest which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the purchase money (if any there shall be), unto the said of the first part, heirs, executors, administrators, or assigns ; which sale, so to be made, shall forever be a perpetual bar, both in law and equity, against the said part of the first part heirs and assigns, and all other persons claiming or to claim the premises, or any part thereof, by, from, or under them, or either of them. And the said do further covenant, grant, promise, and agree, that the said part of the first part, shall and will make, execute, acknowledge, and deliver in due form of law all such further or other deeds or assurances as may at any time hereafter be devised or required, for the more fully and efiectually conveying the premises above described and hereby granted, or intended so to be, unto the said part of the second part executors, administrators, or assigns, for the purposes aforesaid, and unto all and every person or persons, corporation or corpora- tions, deriving any estate, right, title, or interest therein, under this indenture or the power of sale herein contained, and the above granted premises against the said part of the first part, and all persons claiming through them will warrant and defend. And it is expressly agreed by and between the parties to these presents, that the said part of the first part shall and will keep the buildings erected and to be erected upon the lands above conveyed, insured against loss and damage by fire, by insurers, and in an amount approved by the said part of the second part, and assign the policy and certificates thereof to the said part of the second part; and in default thereof, it shall be lawful for the said part of the second part to effect such insurance, and the premium and 38 594 MORTGAGES OF LAXD. premiums paid for effecting the same shall be a lien on the said mortgaged premises, added to the amount of the said bond or obligation, and secured by these presents, and payable on demand with interest at the rate of per cent, per annum. In "Witness Whereof, the said part of the first part ha hereunto set hand and seal the day and year first above written. And (iiaiite of wife of mortgagor^ if married) signs and seals this deed fn token of her relinquishment and release to the said mortgage of all her right and claim of dower in and to the premises hereby granted. Sealed and Delivered in the Presence of {Signatures^ (Seals.) State of ) OF V ss. County of ) On the day of in the year one thousand eight hundred and before me personally came to be the individual described in, and who executed the foregoing instrument, and acknowledged that he executed the same. (198.) The Bond to be Secured by the Preceding Form of Mortgage. Know all Men by these Presents, That (name, residence, and occtipa- tion of the mortgagor) held and firmly bound unto {name, residence, and occupation of the mortgagee) in the sum of lawful money of the United States of America, to be paid to the said executors, administrators, or assigns : For which payment well and truly to be made, bind heirs, executors, and administrators firmly by these presents. Sealed with seal . Dated the day of one thousand eight hundred and The Condition of the above Obligation is. such, That if the above bounden heirs, executors, or administrators, shall well and truly pay, or cause to be paid, unto the above-named executors, adminis- trators, or assigns, the just and full sum of the day of which will be in the year one thousand eight hundred and and the interest thereon, to be computed from at and after the rate of per cent, per annum, and to be paid then the above obligation to be void, otherwise to remain in full force and virtue. And it is Hereby Expressly Agreed, that, should any default be made in the payment of the said interest, or any part thereof, on any day whereon the same is made payable, as above expressed, or should any tax or assess- ment be hereafter imposed upon the premises described in the mortgage accompanying this bond, and become due or payable, and should the said interest remain unpaid and in arrear for the space. of days, or said FORMS OF MORTGAGES, ETC. jgj tax or assessment remain unpaid and in arrears for then and from thenceforth, that is to say, after the lapse or expiration of either one of the said periods, as the case may be, the aforesaid principal sum of with all arrearage of interest thereon, shall, at the option of the said or legal representatives, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired, anything hereinbefore contained to the contrary thereof in anywise notwithstanding. {Signatures.) {Seals.) Signed, Sealed, and Delivered in ike Presence of State of \ OF V ss. County of y On the day of in the year one thousand eight hundred and before me personally came to be the individual described in, and who executed the foregoing instrument, and acknowl- edged that he executed the same. (199.) Satisfaction of Mortgage, in nse in New York. State of New York, ,ss. County of I do hereby Certify, That a certain Indenture of Mortgage, bearing date the day of one thousand eight hundred and made and executed {name, residence, and occupation of mortgagof') or {give the day of the date of the mortgage) to {name, residence, and occupation of mortgagee) for the amount of and recorded in the office of County of in Lib. of Mortgages, page on the day of in the year one thousand eight hundred and o'clock, in the is paid. And I do hereby consent that the same be discharged of Record. Dated the day of i8. In presence of State of New York, {Signature^ {Seal.) ss. County of On the day of in the year one thousand eight hund- red and before me personally came to be the individual described in, and who executed the foregoing instrument, and acknowledged that he executed the same. {Signatures). {Seals.) 50 MORTGAGES OF LAND. 4 (20O.) Assignment of Mortgage.— Short Form. Know all Men by these Presents, That I (7ia7jic, residence, and occi{pa- iion of the assignor) the mortgagee named in a certain mortgage deed, given by {name, residence, and occupation of the mortgagor) to said {name of assignor) to secure the payment of dollars -^rns, dated the day of in the year of our Lord eighteen hundred and recorded in the registry of deeds for the County of lib. fol. in consideration of the sum of dollars Ttnr to me paid by {name, residence, and occupation of buyer and assignee) the receipt v.'hereof is hereby acknowledged, do hereby sell, assign, transfer, set over and convey unto said {name of assignee) and his heirs and ass'gns, said mortgage deed, the real estate thereby conveyed, and the promissory note, debt, and claim thereby secured, and the covenants therein contained. To Have and to Hold the same to him the said {name of assignee) and his heirs and assigns, to his and their use and behoof forever ; sub- ject nevertheless to the conditions herein contained, and to redemption according to la'W. In "Witness "Whereof, I, the said have hereunto set my hand and seal this day of in the year of our Lord eighteen hundred and {Signature^ {Seal.) Executed and Delivered in Presence of ss. A.D. i8 Then personally appeared the above-named and acknowledged the above instrument to be his free act and deed. Before me, {Signature^ (201.) Assignment of Mortgage, -with Po"wer of Attorney. Know all Men by these Presents, That I, {name, residence, and occu- pation of assignor) party of the first part, in consideration of the sum of lawful money of the United States, to me in hand paid by {naine, residence, and occupation of assignee) of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer, and set over unto the said party of the second part, his executors, administrators, and assigns, a certain indenture of mortgage, bearing date the day of one thousand eight hundred and made by {here state the name of the inortgagor, and briefly describe the mortgage deed, and state the volume and page ivhere it is registered) to which reference may be made, together with all the right, title, interest, and estate of said party of the first part, in and to the premises described and conveyed in and by said indenture of mortgage. FORMS OF MORTGAGES, ETC. 597 Together with the bond (or note) therein described and the money due and to grow due thereon, with the interest accruing or accrued, to haveand to hold the same, unto the said party of the second part, his executors, administrators, and assigns, for his and their use, subject only to the proviso in the said indenture of mortgage mentioned; and 1 do hereby make, con- stitute, and appoint the said party of the second part, my true and lawful attorney, irrevocably in my name or otherwise, but at his own proper costs and charges, to have, use, and take all lawful ways and means for the recovery of the said money and interest ; and in case of payment to dis- charge the same as fully as I might or could do if these presents were not made. In "Witness "Whereof, I have hereunto set my hand and seal the day of one thousand eight hundred and {Signature) {Seal) Sigtied, Sealed, and Delivered in the Presence of State of ^ >- ss. County. ) On this day of eighteen hundred and perso:ialIy appeared before me known to me to be the person who signed and sealed the foregoing assignment of mortgage, and acknowledged the execution of the same for the uses and purposes therein set forlh. Given under my hand and seal at in said county aforesaid. {Signattire.) {Seal.) (202.) Assignment of Mortgage by a Corporation. Know all Men by these Presents, That the {legal name of the corpo- ration assigning existing as a corporate body, in and under the laws of the State of of the first part, for and in consideration of the sum of lawful money of the United States, to the said corporation paid by {name, residence, and occupation of assignee) of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, as- signed, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer, and set over unto the said party of the second part, a certain indenture of mortgage, bearing date the day of one thousand eight hundred and made by {here state the name of the mortgagor, and briefly describe the rnorfgage deed ) the same being duly registered in the office of the register of deeds for the County of and State of to which said indenture of mortgage reference may be had. Together with the bond or obligation therein described, and the moneys 598 MORTGAGES OF LAND. due, and to grow due thereon, with the interest : to have and to hold the same unto the said party of the second part, his heirs and assigns, for his and their own use, subject only to the proviso in the said indenture of mort- gage mentioned. And the said parties of the first part do hereby make, constitute, and appoint the said party of the second part their true and lawful attorney, irrevocable, in the name of the said parties of the first part, or otherwise, but at the proper costs and charges of the said party of the second part, to have, use, and take all lawful ways and means for the recovery of the said money and interest, and in case of payment, to discharge the same as fully as the said parties of the first part might or could do if these pres- ents were not made. In Witness Whereof, the said parties of the first part have caused their common seal to be affixed to these presents, and the same to be signed by their attorney and president (or other officer) the day of in the year one thousand eight hundred and (Signature.) (Seal of the Corpora/ion.) Signed, Sealed, and Delivered in Presence of State of County. On the day of in the year one thousand eight hundred and , before me came with whom I am personally acquainted, and known to me to be the attorney and of the within named corporation, who, being by me duly examined, says, that the seal which is affi.xed to the within assignment is the corporate seal of the said corporation, and was so affixed by their authority, and acknowledged that he executed the same as their act and deed. (Sigjiatiire^ (203.) Discharge of Mortgage.— Short Form. This Debt, secured by the mortgage, dated and recorded with deeds, lib. fol. has been paid to me by (name of mortgagoi-) and in consideration thereof 1 do discharge the mortgage and release the mortgaged premises to said (name of viortgagor) and his heirs. Witness my hand and seal A.D. iS Executed and Delivered in Presence of (Signature.) (Seal.) ss. A.D. 1 8 . Then said acknowledged the foregoing instrument to be free act and deed. Before me, (Signature.) FORMS OF MORTGAGES, ETC. 595 (204.) Release and Quitclaim of Mortgage, as used in the "West- ern States. Know all Men by these Presents, That I {jiame of mortgagee) oi ^& County of and State of for and in con- sideration of one dollar, to me in hand paid, and for other good and valuable considerations, the receipt whereof is hereby confessed, do hereby grant, bargain, remise, convey, release, and quitclaim unto {name of assignee or releasee) of the County of and State of all the right, title, interest, claim, or demand whatsoever I may have acquired in, through, or by a certain indenture or mortgage deed, bearing date the day of A.D. 18 , and recoi'ded in the recorder's office of County, in book of page to the premises therein described, and which said deed was made to secure a certain promissory note (or bond) bearing even date with said deed, for the sum of dollars and cents. Witness my hand and seal this day of A.D. 18 (Signature^ {Seal.) State of ) y ss. County of ) I, in and for said county, in the State aforesaid, do hereby certify that who is personally known to me as the same person whose name is subscribed to the foi^egoing deed, appeared before me this day, in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. Given under my hand and seal this day of A.D. 18 {Signature.) {Seal.) (205.) Discharge of Mortgage, as used in the Middle States. State of ) V ss. County. ) I, {name, residence, and ocaipation of mortgagee) do hereby certify that a certain indenture {or deed) of mortgage, bearing date the day of one thousand eight hundred and made and executed by {here state the name of the mortgagor, and describe the deed briefly) and recorded in the office of County of in lib. of Mortgages, page on the day of in the year one thousand eight hundred and o'clock in the is paid. And I do hereby consent that the sariie be discharged of record. Dated the day of 18 {Signature) {Seal.) In Presence of 6oo MORTGAGES OF LAND. State of ) f- ss. County op ) On the day of in (he 3-ear one thousand eight hundred and before me personally came who is known to me to be the individual described in, and v.-ho executed the foregoing instrument, and acknowledged that he executed the same as his free act and deed. {Signature) (206.) Discharge and Satisfaction of Mortgage by a Corporation. We, {the legal name of the corporation) a corporate bodi' existing within and under the laws of the State of Do hereby Certify, That a certain mortgage, bearing date the day of in the year one thousand eight hundred and made and executed by {here state the name of the mortgagor^ and describe the mortgage briefly) and recorded in the office of the register in and for the County of in lib. of Mortgages, page on the day of is paid. In Witness Whereof, The said corporation has caused its corporate seal to be hereunto affixed, this day of in the year one thousand eight hundred and {Signature of attorney) {Seal of corporationi) Witnessed by State of County of On the day of in the year one thousand eight hundred and , before me personally came to me known, who, being by me duly sworn, did depose and say, that he resided in the cily {or town) of that he is the attorney and president {or other officer) of the said corporation ; that he knew the corporate seal of the said corporation, and that the seal affixed to the foregoing instrument was such corporate seal ; that it was affixed by him by order of the said corporation, and that he signed his name thereto by the like order. {Signature) (207.) Release of a Part of the Mortgaged Premises. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between {najne, residence, and occupation of the mortgagee and releasor) party of the first part, and {name, residence, and occ2cpation of the mortgagor to whom the lease is given) party of the second part. FORMS OF MORTGAGES, ETC. 6oi Whereas, The said party of the second part, by indenture of mortgage, bearing date the day of one thousand eight hundred and for the consideration therein mentioned, and to secure the payment of the money therein specified, did convey certain lands and tene- ments, of which the lands hereinafter described are part, unto die said party of the first part. And "Whereas, The said party of the first part, at the request of the said party of the second part, has agreed to give up and surrender the lands here- inafter described unto the said party of the second part, and to hold and retain the residue of the mortgaged lands as security for the money remain- ing due on the said mortgage : Now this Indenture Witnesseth, That the said party of the first part, in pursuance of the said agreement, and in consideration of to him duly paid at the time of the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, released, quit- claimed, and set over, and by these presents does grant, release, quitclaim, and set over, unto the said party of the second part, all that part of the said mortgaged land {here describe carefully and accurately all that part of the mortgaged land which it is intended to release, distinguishing it from that which is retained). Together with the hereditaments and appurtenances thereto belonging; and all the right, title, and interest of the said party of the first part, of, in, and to the same, to the intent that the lands hereby conveyed may be dis- charged from the said mortgage, and that the rest of the lands in the said mortgage specified may remain to the said party of the first part as here- tofore. To have and to hold the lands and premises hereby released and conveyed, to the said party of the second part, and his heirs and assigns, to his and their only proper use, benefit, and behoof forever, free, clear, and discharged of and from all lien and claim, under and by virtue of the inden- ture of mortgage aforesaid. In "Witness "Whereof, The said party of the first part has hereunto set his hand and seal on the day of in the year {Signature.) {Seal.) Executed and Delivered in Presence of State of County of On the day of in the year one thousand eight hundred and before me personally came who is known to me to be the individual described in, and who executed the fore- going instrument, and acknowledged that he executed the same as his free act and deed. {Signature.) 602 MORTGAGES OF LAND. (208.) Deed Extending a Mortgage. This Indenture, Made this' day of A.D. i8 by and between {name, residence, a7id occupation of the mortgagee) the owner and holder of a certain promissory note (or bond) for the principal sum of dollars, given by (name of mortgagor) and secured by a inort- gage of certain real estate in in the County of and State of dated day A.D. i8 and recorded in Registry of Deeds for the County of lib. fol. party of the first part, and the said (name of mortgagor) party of the second part, Witnesseth, That the said parties, for themselves and their representa- tives, hereby mutually agree that the time for the payment of the principal of said note and mortgage debt shall be and the same is hereby extended for the term of years from the day of A.D. 1 8 and that the same is to bear interest from said date at the rate of per cent, per annum, payable on the day of and the day of in every year, until said principal sum shall be fully paid. And the said party of the second part hereby covenants and agrees that he will not require the holders of said note and mortgage to receive payment of said mortgage debt during said extended term ; that he will punctually pay the interest now due, and to grow due thereon, at the times and at the rate aforesaid ; that he will keep the mortgaged premises in good repair, and insured against fire, and the taxes thereon duly paid, according to the provisions of said mortgage, and that at the expiration of said extended term he will pay the said mortgage debt, with all interest then due thereon. It is expressly understood and agreed that nothing herein contained shall be construed to impair the security of said party of the first part, or his executors, administrators, or assigns, under said mortgage, or to affect or impair the lien on the real estate therein described which he has by virtue of said mortgage, nor affect or impair any rights or powers which he may have under the said note and mortgage for the recovery of the mortgage debt, with interest, in case of non-fulfilment of this agreement, or of any ol the provisions hereof, by said party of the second part. In "Witness Whereof, The said parties have hereunto set their hands and seals the day and year first above written. (Signature of mortgagee^ {Seal.) (Signature of mortgagor.) (Seal.) Signed, Sealed, and Delivered in Presence of Commonwealth of ss. i8 . Personally appeared the above-named and acknowledged the above instrument to be tlieir free act and deed. Before me, (Signature) FORMS OF MORTGAGES, ETC. 603 (209.) Deed of Mortgage in use in the Province of Quebec. On this day, the of in the )-ear of our Lord one thousand eight hundred and before the undersigned, public notar duly commissioned and sworn in and for the Province of Quebec, in the Dominion of Canada, residing in the city of Montreal, in the said Province, personally came and appeared {insert the name, residence, and occn- pation of the mortgagor), who acknowledged and confessed to be well and truly indebted unto (insert the name, residence, and occupation of the tnort- gagee) hereto present and accepting, for heirs and assigns, in the ■sum of currency, for value which the said do hereby acknowledge to have had and received of and from the said to full and entire satisfaction at the passing of these presents, whereof quit. Which said sum of he the said do hereby promise to well and truly pay, or cause to be well and truly paid, unto the said heirs or assigns, in gold coin, at its present standard of value, and of the same weight and fineness and number of pieces as at the date of the passing of this obligation, in before which time it will not be optional with or competent for the said mortgagor to pay the said sum or any portion thereof without the written consent of said mort- gagee or representatives, with interest thereon till paid, at the rate of per centum per annum, to be accounted from and for security of the due and faithful payment of the said sum of and interest at the times and in the manner herein above agreed upon, the said ha mortgaged and hypothecated, and by these presents do mortgage and hypothecate, specially to and in favor of the said heirs and assigns, the hereinafter described landed property, which he declare well and truly to belong to [insei't him, her, or them, as the case may be; then insert the description of the premises conveyed in mortgage, substantially as in Form 107). Provided always, and it is specially covenanted and agreed by and between the said parties hereto, and this clause and condition is not to be or be held or considered to be penal or comminatory, but is of the essence of the present loan and obligation, and without which the same would not have been made or executed, that should the said mortgagor make default in any of the said interest payments for days after such interest payment shall become due and payable as aforesaid, then the said principal sum shall at once become exigible by the said mortgagee, h heirs or assigns, and that without any judicial .demand, notice, or other formality whatsoever. And the said mortgagor do hereby further bind and oblige immediately to insure and to keep constantly insured at own cost and expense against loss by fire, with such insurance company or companies as the said mortgagee or representatives may approve of, for a sum of money not less than the house and other buildings erected on 6o4 ^OR TGA GES OF LAND. the above described piece and parcel of land, and to transfer to the said mortgagee and representatives the policy or policies of such insurance and insurances, together with the sum of money thereby insured, the whole as long as any part or portion of the said amount in principal or interest may remain unpaid. Failing which, the said mortgagee heirs and assigns, shall have the right to do so, and the said mortgagor heirs and representatives, shall be bound to repay on demand to the said mortgagee heirs and assigns, all such sum and sums of money which he or they may have expended in so doing ; and for security thereof the said premises are hereby further hypothe- cated to the extent of . The said mortgagor ' to pay all counsel and notarial fees in respect hereof, and for one copy of these presents for the said ruortgagee and costs of registration; and when this obligation shall be paid, the said mortgagor shall bear tlie expense of drawing and register- ing a discharge. And, at the making and passing of these presents, personally came, appeared, and intervened Dame wife of the said and by her said husband duly and specially authorized for the effects and purposes hereof, as appears by his signature hereto, who, after having had and taken communication of the foregoing deed of obligation and mortgage, doth hereby, until payment and satisfaction of the present obligation and mortgage, renounce, as well in her own name and behalf as for and in the name of the child or children born or to be born of her marriage with the said in favor of the said to all dower and all right or title of dower which she, the said and her said child or children, might or of right ought to have or claim in, to, or upon the hereby mortgaged premises, of which she hereby divests herself and her said child or children, declaring the same and every part thereof hereby freed, cleared, and discliarged of and from all her and her said child or children's said rights of dower, and all other her matrimonial rights, whether legal, stipulated, or customary, until payment of the present obhgationas aforesaid. And for the execution of these presents the said parties have elected their domicil at their present place of residence above mentioned, where, etc.. Done and Passed, at the said City of Montreal, in the office of the said notar under the number thousand hundred and on the day, month, and year first above and before written, and signed by the said with and in the presence of said notar these pres- ents having been first duly read to the said parties. (210.) Deed of Mortgage, with Dower, in use in Ontario. This Indenture, M&As {in duplicate) i\\Q day of in the year of our Lord one thousand eight hundred and in pur- suance of tlie Act respecting short forms of mortgages, between (name, resi- den.ce, and occupation of the mortgagor) hereinafter called the mortgagor of the first part ; {name of the wife of mortgagor) his wife of the second part; FORMS OF MORTGAGES, ETC. 605 and {name, residence, and occupation of the 7nortgagee) hereinafter called the mortgagee of the third part. Witiiesseth, That in consideration of of lawful money of Canada, now paid by the said mortgagee to the said mortgagor (the receipt whereof is hereby acknowledged), the said mortgagor do grant and mort- gage unto the said mortgagee heirs and assigns forever, all and singular th certain parcel or tract of land and premises situate, lying, and being {insert here the description of tlie premises mortgaged, substan- tially as in Forjii 107). The said party of the second part hereby bars her dower in the said lands. Provided, This mortgage to be void on payment of of lawful money of Canada, with interest at per cent, per annum, as follows ; and taxes and performance of statute labor. The said mortgagor covenant with the said mortgagee that the mortgagor will pay the mortgage money and interest, and observe the above proviso. That the mortgagor ha a good title in fee-simple to the said lands ; and that he ha the right to convey the said lands to the said mortgagee ; and that on default the said mortgagee shall have quiet possession of the said lands, free from all incumbrances. And that the said mortgagor will execute such further assurances of the said lands as may be requisite. {Title-deeds). And that the said mortgagor ha done no act to encumber the said lands. And that the said mortgagor will insure the buildings on the said lands to the amount of not less than dollars currency. And the said mortgagor do release to the said mortgagee all claim* upon the said lands, subject to the said proviso. Provided, That the said mortgagee , in default of paymeni! for months, may, upon giving notice in writing, enter upon and lease or sell the said lands ; provided, that the mortgagee may distrain for arrears of interest ; provided, that in default of the payment of the interest hereby secured, the principal hereby secured shall become payable ; pro- vided, that until default of payment the mortgagor shall have quiet pos- session of the said lands. In Witness Whereof, The said parties hereto have hereunto set their hands and seals. Signed, Sealed, and Delivered in the presence of Keceived on the day of the date of this Indenture, County of to wit : \, {name of witness) oi \X\e. of in the County of make oath and say: l. That I was personally present, and did see the within instrument and duplicate thereof duly signed, sealed, and executed by the part thereto. 2. That the said instrument and 6o6 MORTGAGES OF LAND. duplicate were executed at the 3- That I know the said part 4- That I am a subscribing witness to the said instrument and duplicate. Sworn before me, at of in the County of tlfSs day of in the year of our Lord i8 A Covimissio7tcr for taking affidavits i?i B. R., etc. (211.) Full Deed of Mortgage, for General Use. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between {name, residence, and occupation of the mortgagor) of the one part, herein- after called the mortgagor, and {name, residence, and occupation of the mortgagee'), hereinafter called the mortgagee, of the other part. "Whereas, the said mortgagor seized of, or well entitled to, the inherit- ance in fee-simple, of and in the- lands and premises hereinafter described and released ; and having occasion to borrow, and take up at interest, the sum of ha applied to and requested the said mortgagee to lend and advance the same, which he the said mortgagee ha agreed to do, on having the repayment thereof secured to by a mortgage of the said lands, tenements, and hereditaments, in manner hereinafter mentioned. ITo-w this Indenture Witnesseth, That in pursuance of tlie said agree- ment, and in consideration of the sum of to the said mort- gagor in hand paid by the said mortgagee at or immediately before the sealing and delivery of these presents, the receipt whereof the said mort- gagor do hereby acknowledge, and of and from the same, and every part thereof, do acquit, release, and discharge the said mortgagee heirs, executors, administrators, and assigns, and every of them, forever, by these presents, he the said mortgagor ha granted, aliened, released, and confirmed, and by these presents do grant, aliene, release, and confirm (and the said doth hereby release all her right of dower) unto the said mortgagee heirs and assigns, all tract , piece , and parcel of land, hereditaments, and premises, situate, lying, and being {here describe carefully the premises) Together with all houses, buildings, rights, members, and appurte- nances thereunto belonging, or in anywise appertaining ; and all the estate, right, title, claim, and demand of the said mortgagor in, to, or upon the said lands and hereditaments, or any part thereof. To Have and to Hold the said lands, tenements, hereditaments, and premises hereby released, or intended so to be, with their appurtenances, unto the said mortgagee heirs and assigns, to the only proper use of the said mortgagee heirs and assigns, forever. Subject, nevertheless, to the proviso for redemption hereinafter con- FORMS OF MORTGAGES, ETC. 607 tained ; that is to say, provided tliat if the saiJ mortgagor heirs, executors, or administrators, shall pay unto the said mortgagee executors, administrators, or assigns, the full sum of of lawful money of (Prince Edward Island), without any abatement whatever, then these presents shall cease, and b^ void to all intents and purposes whatever. And the said mortgagor heirs, executors, and administrators, covenant with the said mortgagee executors and administrators, that he the said mortgagor heirs, executors^ or administrators, shall and will pay, or cause to be paid, unto the said mortgagee executors, ad- ministrators, or assigns, the said principal sum of and interest, at the times and in the manner hereinbefore appointed for pay- ment thereof, without any deduction or abatement whatever, according to the true intent and meaning of these presents. And also shall and will, dur- ing so long as the said sum of or any part thereof, shall remain due on the security of these presents, pay or cause to be paid to the said mortgagee executors, administrators, or assigns, interest for the said sum of or for so much thereof as for the time being shall remain unpaid, after the rate of centum per annum, on the day of ineveryyear. And also that he the said mortgagor now in good right to grant, release, and convey the hereditaments hereby released, unto the said mortgagee heirs and assigns, in manner aforesaid, accord- ing to the true intent and meaning of these presents. And further, that it shall and may be lawful to and for the said mortgagee heirs and assigns, after default shall be made in payment of the said sura of and interest, or any part thereof respectively, contrary to the proviso hereinbefore contained, peaceably to enter upon the said her- editaments, and to hold and enjoy the same, without any interruption, claim, or demand whatsoever. And moreover, that he the said mortgagor and heirs, and all persons whatsoever, having any estate or inter- est in the premises, shall and will at all times hereafter, during the con- tinuance of the said sum of and interest, or any part thereof, on this security, upon every reasonable request of the said mortgagee executors, administrators, and assigns, but at the costs apd charges of the said mortgagor heirs, executors, and administrators, make and execute and perfect all such further conveyances and assurances in the law whatsoever, for the further and better conveying and assuring the said hereditaments hereby released, unto and to the use of the said mortgagee heirs and assigns ; subject to the said proviso, according to the true intent and meaning of these presents, as by the said mortgagee heirs and assigns, or his or their counsel in the law, shall be reasonably desired or advised and required, and tendered to be made and executed. And it is hereTsy further Provided, agreed, and declared, by and 6o8 MORTGAGES OF LAND. between the said parties to these presents, that if default shall be made in payment of the said sum of or the interest thereof, or any part thereof respectively, at the times hereinbefore appointed for payment of the same respectively, then and in any of such cases, and when and so often as any such default shall be made, the whole amount of the said prin- cipal money shall, notwithstanding any provision or condition of this mort- gage to the contrary, immediately fall due and become payable, and it shall be lawful for the said mortgage executors, administrators, or assigns, at anytime or times after such default shall have been so made, with- out any further consent on the part of the said mortgagor heirs and assigns (without prejudice, however, to the right of the said mortgagee heirs and assigns, to foreclose the equity of redemption, or to maintain any action under the covenants hereinbefore contained), to make sale and dispose of the said messuages, land, and other hereditaments and premises hereinbefore granted end released, or expressed cr intended so to be, or any part or parts thereof, either together or in parcels, and either by public auction or private contract, with full power upon any such sale or sales to make any stipulations as to title or otherwise, which he or he shall deem necessary ; and also wi;h full power to buy in the said heredita- ments and premises, or any part or j^arts thereof, at any sale or sales by pub- lic auction, or to rescind any contract or contracts for the sale of the same hereditaments and premises, or any part or parts thereof, and to re-sell the same hereditaments and premises which shall have been so bought in, or as to which any contract or contracts for sale shall have been rescinded as aforesaid, without being responsible for any loss which may be occasioned thereby. And, for the purposes aforesaid, or any of them, it shall be lawful for the said mortgagee executors, administrators, or assigns, to make and execute, or cause to be made and executed, all such agreements, deeds, conveyances, and assurances as he or executors, administrators, or assigns shall think fit. And it is hereby also agreed and declared, that upon any sale or sales which shall be made under the power of sale hereinbefore contained by the executors or administrators of the said mortgagee or by any other person or persons who may not be seized of the legal estate in the hereditaments and premises to be sold, the heirs of the said mortgagee or any other person or persons in whom the legal estate of the same hereditaments and premises, or any part thereof, shall be vested, shall make such conveyances and assurances of the same, for the purpose of carrying the sale thereof into effect, as the person or persons by whom the same shall be made shall direct. Provided also, and it is hereby agreed and declared, that the said mort- gagee executors, administrators, or assigns, shall not execute the power of sale hereinbefore contained (if the sale or sales thereunder be by public auction) unless and until he or they shall have first given week's notice of such sale, by publishing such notice at least once in every week for successive weeks, in some newspaper published in FORMS OF MORTGAGES, ETC. 609 Provided also, and it is hereby further agreed and declared, that upon any sale purporting to be made in pursuance of flie aforesaid power in that behalf, the purchaser or purchasers thereof shall not be bound to see or inquire whether either of the cases mentioned in the clause or provision lastly hereinbefore contained has happened, or whether any money remains due on the security of these presents, or otherwise, as to the propriety or regularity of such sale ; and notwithstanding any impropriety or irregularity whatso- ever in any such sale, the same shall, as far as regards the safety and pro- tection of the purchaser or purchasers thereat, be deemed and taken to be within the aforesaid power in that behalf, and to be valid and effectual accord- ingly, and the remedy of the said mortgagor heirs or assigns, in respect of any breach of the clause or provision lastly hereinbefore con- tained, shall be in damages only. And it is hereby also agreed and declared, that, upon any such sale as aforesaid, the receipt or receipts in writing of the said mortgagee executors, administrators, or assigns, for the purchase-money of the hereditaments and premises to be sold, shall be an effectual discharge or effectual discharges to the purchaser or purchasers for the money therein respectively expressed to be received, and that such purchaser or purchasers, after payment of or purchase- money, shall not be concerned to see to the application of such money, or be answerable for any loss, misapplication, or non-application thereof. And it is hereby further agreed and declared that the said mortgagee executors, administrators, and assigns, shall hold all and singu- lar the moneys which shall arise from any sale which shall be made in pursuance of the aforesaid power in that behalf, upon the trusts following ; that is to say, upon trust in the first place by, with, and out of the same moneys, to reimburse himself or themselves, and to pay or discharge all the costs and expenses attending such sale or sales, or otherwise to be incurred in or about the exercise of the said power of sale or in anywise relating thereto ; and, in the next place, upon trust to apply such moneys in or towards satisfaction of all and singular the moneys which for the time being shall be due on the security of these presents, and then upon trust to pay the surplus [if any] of the said moneys unto the said mortgagor h heirs orassigns, for h and their proper use and benefit. And it is hereby also agreed and declared that the aforesaid power of sale shall and may be exercised by any person or persons who for the time being shall be entitled to receive and give a discharge for the moneys which for the time being shall be due on the security of these presents. Provided Always, and it is hereby agreed and declared, that the said mortgagee, h executors, administrators, or assigns, shall not be answer- able nor accountable for any involuntary losses which may happen in or about the exercise or execution of the aforesaid power or trusts, or any of them. In "Witness Whereof, the parties above mentioned have hereunto sub- scribed their names and affixed their seals to two copies thereof, interchange- 39 6lO LEASES. abty, dt on the day of in the year of our Lord {A^ame of mortgagor.) {Seal.) {Name of mortgagee.) {Seal.) Executed and interchanged in presence of {Names of witnesses^ $ deceived, on the day of the date of the within written Indenture, from tlie within named mortgagee, the sum of being the consid- eration expressed in the same Indenture, to be paid by him to the within named mortgagor. IVitness, This Deed was acknowledged before me by therein named apart from her husband, to have been voluntarily executed by her, and that she was aware of the nature of the contents thereof. Dated this day of A.D. i8 J. P. for County. CHAPTER XXXI. LEASES. A LEASE is a contract whereby one party (the tenant) takes the possession of the land and all that is on it, and the other party (the landlord) gives possession of the land, and reserves (that is, agrees to take) a rent, which the tenant pays him by way of compensation. All things usually comprehended under the words "house," "farm," "land," "store," &c., pass to the tenant, where such words are used, unless there be an express exception. And inaccuracies as to qualities, names, measurements, or amounts, will be corrected, if there be enough in the lease to make the purposes and intentions of the parties certain. And letting to hire anything to be used carries with it all those appurtenances and accompaniments necessary for the proper use and enjoyment of the thing which belong to the letter. A landlord is bound to put his lessee into possession with good title. If he covenants "to renew" generally, this means a renewal of the lease on the same terms, but v/ithout inserting in the new lease another covenant of renewal. LEASES. 6 1 1 A landlord is under no legal obligation to repair the house, unless he expressly agrees to do so. If the house is never so much dilapidated and disfigured as to paper, paint, etc., and locks and blinds and doors and windows are out of order, and the like, the tenant can claim nothing of the landlord. Even if it becomes wholly uninhabitable by no fault of the house or of the landlord, as if it burns up, or is blown down, or if the overflow of a stream ruins a field or a farm, still the landlord is not bound to do anything, unless by special agreement. But if the house is uninhabitable by its own fault, as if it has a noisome and unwholesome stench, or, according to one case, if it be overrun with rats, or so decayed as to be open to the weather, it would seem to be the law of this country that the tenant may leave the house ; always provided, however, that the objection or defect be not one which the tenant knew or anticipated, or would have known or expected if he had made reasonable inquiry and investigation before he took his lease. And perhaps no tenant can leave his house, or refuse or abate his rent, for any objection or difficulty arising after he hires the house. But, strange to say, the important question what the tenant's rights are in such a case is still uncertain. If the house be wholly destroyed, the tenant must still pay rent, under an ordinary lease ; because the law looks upon the land as the principal thing, and the house as secondary. And not only so, but if the tenant covenants "to return and rede- liver the house at the end of the term, ■ in good order and condition, reasonable wear and tear only excepted," he would be bound under this agreement to rebuild the house if it were burned down. But recently all well-drawn leases have clauses providing that the rent shall cease or be abated while the premises are uninhabitable from fire or any other unavoidable calamity. A similar exception is added to the clause about returning the house at the end of the lease. If this exception be in, a tenant is not bound to rebuild, even if the house be burned through the carelessness of himself or his servants. A tenant of a room, or of a suite of chambers, is entitled to the use of all the appurtenances and accommodations which fairly go with it, as of the front door and entry, water-closets, 6l2 LEASES. and of all windows, etc., proper to the enjoyment of what he hires. But an express agreement about all these things, and cellar-room, pump, and the like, is always safest. The tenant is not bound to make general repairs without an express agreement. But he must make such as are necessary to preserve the house from injury, as from rain, if shingles or slates are blown off or glass broken. And he would be bound even for ornamental repairs, as paper and paint, under a cove- nant to return "in good order." The tenant of a farm is bound, without express covenants, to manage and cultivate the same in such a manner as good husbandry and the usual course of management of such farms in his vicinity would require. The times for payment of rent are usually specified in the lease, if not, they would be governed by the usage of the country, if there were any of sufficient distinctness and force. A tenant under a lease which says nothing about underlet- ting has a perfect right to underlet, remaining himself bound for his rent to his landlord. A tenant is not responsible for taxes, unless it is expressly agreed in the lease that he shall be. If there be a clause prohibiting him from underletting or assigning, and he agrees not to, nevertheless he may do so without forfeiting the land ; but he v.-ill be, as before, liable for rent ; and besides this, he will be responsible in an action for any damages which the landlord can show that he has sustained by such underletting. It is usual to go further in the lease than this, and provide that such underletting shall make a forfeiture of the lease, and authorize the landlord to enter upon the premises and turn the tenant out. Where there is this covenant, if the tenant now underlets, the landlord cannot avail himself of the clause of forfeiture and afterwards hold the tenant for his rent. He may either hold him for his rent, and also for damages, or he may terminate the lease ; but cannot do both. That is, if he con- tinues to hold the tenant responsible for rent, he cannot prevent the tenant's letting somebody else occupy the house and pay to him (the tenant) the rent which he pays over. LEASES. 613 A tenant of a farm, if his lease is terminated by any event which was uncertain, and which he could neither foresee nor control, is entitled to the annual crop which he sowed while his interest in and right to the farm continued. If a lease be for a certain time, the tenant loses all right or interest in the land or premises when that time comes, and he must leave, or the landlord may turn him out at once. But he is a tenant at will, if he holds over after a lease with consent, or occupies the land or house or store without a lease but with consent and an oral bargain; and a tenant at will cannot leave, nor can he be turned out, without a notice to quit. The law on this subject is not uniform. In general, however, it is this. If rent is payable quarterly, or not more frequently, then there must be a quarter's notice. If rent is payable oftener, then the notice must be as long as the period of payment. Thus, if rent is payable monthly, there must be a month's notice ; if weekly, a week's notice. But the notice must terminate on a day when the rent is payable. It may be given at any time, * but operates only after the required interval or period between two payments. Thus, if a tenant whose lease terminates on the 31st of December holds over by consent, and pays rent quarterly, and the landlord Vv'ishes that he should leave the house on the last day of September, he may give notice on the preceding 30th day of June, or any day preceding that. But if he gives notice on any day before the 30th of June, the tenant will still have a right to stay until the 30th of September. Properly, the notice should specify the day, and the right day, when the tenant must leave ; and should be in writing. Where the rent is in arrear, the notice to quit may be more brief; the statutes of the different States vary on this point, but a frequent period is fourteen days. And if notice to quit is given because the rent is unpaid, it may be given at any time, and will operate at the end of the period which the law desig- nates ; but it should specify the day on which the tenant must quit. A tenant may give notice of his intention to quit, and generally it will be subject to the same rules already stated in reference to the notice given by a landlord. A tenant should 6 14 LEASES. give his notice to the party to whom he is bound to oay rent, or to an authorized agent of that party. FIXTURES. It is quite important that both tenant and landlord should have some knowledge of the law of fixtures; for this tells them what things the tenant may take away and what he cannot. For there are many things which a tenant may add, and after- wards remove, and many which he cannot remove. The method of affixing them may be a useful criterion, as it indicates the purpose of removal or otherwise. If with screws, or in such a way as to show that removal was intended, things may be taken aAvay, when, if the same things were fastened more per- manently, they could not be. In modern times the rule in favor of the tenant seems to extend as far as this : whatever he has added, and can remove, leaving the premises entirely restored and in as good order as if he had not removed it, that he may take away. Among the things held to be removable, in different adjudged cases, are these: ornamental chimney- pieces ; coffee-mills ; cornices screwed on ; furnaces ; fire-frames ; stoves ; iron backs to chimneys ; looking-glasses ; pumps ; gates ; rails and posts ; barns or stables on blocks. Among those held not removable are these: barns fixed in the ground ; benches fastened to the house ; trees, plants, and hedges, not belonging to a gardener by trade ; conservatory strongly affixed ; glass windows ; locks and keys. But almost every one of these might be removable, or not, according to the intent of the parties, and the rule above stated, of removableness with or without injury. If a man sells a house, the law of fixtures is construed far more severely against him than against a tenant who leaves a house ; that is, the seller must permit the buyer to hold a great many things which an outgoing tenant might remove. Of course, a seller may take what he will from his house before he sells it, or make what bargain the parties choose to make about the fixtures. But if he makes no such bargain, and sells the house, he cannot then take from the house what a tenant who put them there might take. DIGEST OF LEASES. 6 1 $ In favor of trade and manufactures, the law permits almost anything which was put in by a tenant for such purposes to be taken away, if the premises can be restored substantially to their original condition. In many States there are laws concerning leases, as in the following digest : COimECTICXJT. — Leases for any term exceeding one year, must be executed,' attested, acknowledged, and recorded in tlie same manner as other deeds. Stats. 1875, P- 354' DELAWARE. — Leases for more than twenty-one years must be re- corded. Stats. 1875, p. 504. MAINE. — A lease for more than seven years must be recorded. Stats. 1871, p. 560. MABYIiAND. — Leases for more than seven years are recorded. Stats. i860, p. 132. MASSACHUSETTS.— Leases for more than seven years must be re- corded. Stats, i860, p. 466, § 3. MISSISSIPPI. — Leases for more than one year are executed similarly to deeds, and must be recorded. Stats. 1871, § 2,302. NEW HAMPSHIRE.— Leases for more than seven years must be re- corded. NORTH CAROLINA.— All leases that are required to be in writing must be recorded in the proper county within two years. Battle's Revisal, 1873. P- 356. OHIO. — Leases for more than three years must be recorded. Stats. S. & C, i860, pp. 467-468. OREGON. — Leases for more than one year must be recorded. Laws of 1872, p. 264. PENNSYLVANIA. — Leases for more than twenty-one years must be recorded. Brightley's Purdon's Dig., 1873, p. 473. RHODE ISLAND. — Leases for more than one year must be executed like ordinary deeds of land, and recorded. Stats. 1872, p. 349. SOUTH CAROLINA. — Leases for more than one year must be re- corded within three months. Stats. 1871, p. 397- TENNESSEE.— Leases for more than one year must be recorded. Stat. 1871, § 2,030. TEXAS.— All leases are recorded. VERMONT. — Leases for more than one year must be recorded. The remarks in respect to the variety of forms which will be found at the close of the chapter on deeds of land, are equally 6l6 LEASES. applicable to forms of leases, and should be read in connection with the following forms. (212.) A Short form of a Lease. This Indenture, Ma^e the day of in the year of our Lord one thousand eight hundred and ■Witnesseth, That I, (tiajne and residence of the lessor) do hereby lease, demise, and let unto (iiaine and residence of the lessee) a certain parcel of land, in the city (or town) of County of and State of with all the buildings thereon standing, and the appurtenances to the same belonging, bounded and described as follows {or, a certain house in said city, giving the street and number, with the land under and adjoining the same^ {The pretnises need not be described quite so mitiutely or fully as is proper in a deed or mortgage of land, but jmist be so described as to identify them perfectly, and make it certain just what premises are leased.) To Hold for the term of from the day of yielding and paying therefor the rent of And said lessee does promise to pay the said rent in four quarterly payments on the day of {or state otherwise just when the payments of rent are to be made) and to quit and deliver up the premises to the lessor or his attorney, peaceably and quietly at the end of the term, in as good order and condition, reasonable use and wearing thereof, fire and other unavoidable casualties excepted, as the same now are or may be put into by the said lessor, and to pay the rent as above stated, and all taxes and duties levied or to be levied thereon during the term, and also the rent and taxes as above stated, for such further time as the lessee may hold the same, and not make or suffer any waste thereof ; nor lease, nor underlet, nor permit any other person or persons to occupy or improve the same, or make or suffer to be made any alteration therein but with the approbation of the lessor thereto in writing, having been first obtained ; and that the lessor may enter to view, and make improvements, and to expel the lessee, if he shall fail to pay the rent and taxes as aforesaid, or make or sufler any strip or waste thereof. In Witness Whereof, The said parties have hereunto interchangeably set their hands and seals the day and year first above written. {Signattires.) {Seals.) Signed, Sealed, and Delivered iti Presence of (213.) A fuller Form, with a Provision for Abatement of Rent. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and by and between {name and residence of lessor) and {name and residence of lessee) FORMS OF LEASES. 617 "Witnessetli, That the said {name of lessor) does hereby lease, demise, and let unto the said (jiame of lessee) (describe the premises as directed in Form 211). To Hold for the Term of commencing the day of A.D. one thousand eight hundred and the said lessee or those claiming under him, yielding and paying rent therefor the sum of for each and every year, and after the same rate for any part of a year. And the said lessee, for himself, his heirs, executors, and administrators, does hereby covenant to and with the said lessor, and his heirs and assigns, that he or they will pay the said rent of in equal sums of the first of which payments shall be made on the day of A D. one thousand eight hundred and and that he or they will pay rent after the same rate for such further time as he the said lessee, or those claiming under him, may hold the premises ; that he or they will from time to time, upon request by the lessor, or his heirs or assigns, pay to them such sum or sums of money as shall be equal to the amount of the taxes and duties, and water-taxes, that shall be levied or assessed on the demised premises for each year and part of a year during the term aforesaid, and during such further time as the said lessee and those claiming under him may hold the premises ; that he or they will not suffer nor commit any strip or waste in the premises ; that he or they will not assign this lease, nor underlet the whole or any part of the premises, to any person or persons ; and that no alterations or additions shall be made during the term aforesaid, in or to the same, without the consent of the said lessor, or of those having his estate in the premises, being first obtained in writing, allowing thereof ; and also that it shall be lawful for the said lessor, and those having his estate in the premises, at seasonable times to enter into and upon the same to examine the condition thereof ; and further, that he the said lessee, and his representatives, shall and will, at the expiration of said term, peaceably yield up unto the said lessor, or those having his estate therein, all and singular the premises, and all future erections and additions to or upon the same, in as good order and condition, in all respects '^reasonable wearing and use thereof, and damage by fire, and other unavoidable casualties excepted) as the same now are, or may be put into by the said lessor or those having his estate in the premises. Provided always, and these presents are upon this condition, that if the said rent shall be in arrear, or the said lessee or his representatives or assigns do or shall neglect or fail to perform and observe any or either of the above covenants hereinbefore contained, which on his or their part are to be performed, then and in either of said cases, the said lessor, or those having his estate in the said premises, lawfully may, immediately or at any time thereafter, and while such neglect or default continues, and without further notice or demand, enter into and upon the said premises, or any part thereof, in the name of the whole, and repossess the same as of his 6i8 LEASES. former estate, and expel the said lessee and those claiming under him, and remove his or their eflfects (forcibly if necessary) without being taken or deemed guilty of any manner of trespass, and without prejudice to any remedies which might otherwise be used for arrears of rent, or preceding breach of covenant. And provided also, that in case the premises, or any part thereof, shall, during said term, be destroyed or damaged by fire or other unavoidable casualty, so that the same shall be thereby rendered u^fit for use and habi- tation, then, and in such case, the rent hereinbefore reserved, or a just and proportionate part thereof, according to the nature and extent of the injuries sustained, shall be suspended or abated until the said premises shall have been put in proper condition for use and habitation by the said lessor, or these presents shall thereby be determined and ended at the election of the said lessor or his legal representatives. In Testimony "Whereof, The said parties have set their hands and seals on the day and year first above written, to this and to anotlier instru- ment of like tenor and date. (Signatures^ {Seals.) Signed, Sealed, and Delivered in Presence of (214.) A Short Form of Lease, in use in the "Western States. This Indenture, Made this day of i8 , between {na?ne and residence of the lessor) party of the first part, and {name andresidence of the lessee) party of the second pait, witnesseth that the said party of the first part, in consideration of the covenants of the said party of the second part, hereinafter set forth, do by these presents lease to the said party of the second part the following-described property, to wit {describe the property as directed in Form 21 1). To Have and to Hold the same to the said party of the second part, from the day of i8 , to the day of l8 . And the said party of the second part, in consideration of the leasing the premises as above set forth, covenants and agrees with the party of the first part to pay the said party of the first part, as rent for the same, the sum of dollars, payable as follows, to wit (liere state the times and terms of payment, imich as in Form 211). The said party of the second part further covenants with the said party of the first part, that at the expiration of the time mentioned in this lease, peaceable possession of the said premises shall be given to said party of the first part, in as good condition as they now are, the usual wear, inevitable accidents, and loss by fire excepted ; and that upon the non-payment of the whole or any portion of the said rent at the time when the. same is above promised to be paid, the said party of the first part may, at his election, either distrain for said rent due, or declare this lease at an end, and recover FORMS OF LEASES. 6ig possession as if the same was held by forcible detainer : the said party ol the second part hereby waiving any notice of such election, or any demand for the possession of said premises. The covenants herein shall extend to and be binding upon the heirs, executors, and administrators of the parties to this lease. Witness the hands and seals of the parlies aforesaid. {Signature of lessor^ {Seal) {Signature of lessee) {Seal.) (216.) A Lease of City Property, in nse in Chicago. Tliis Indenture, Made this day of in the year of our Lord one thousand eight hundred and between {name of the lessor) of the city of in the County of and State of party of the first part, and {name and residence of the lessee) of the second part, Witnesseth, That the said party of the first part, for and in considera- tioii of the covenants and agreements hereinafter mentioned, to be kept and performed by the said party of the second part, or his executors, adminis- trators, and assigns, has demised and leased to the said party of the second part all those premises situate, lying, and being in the city of Chicago, in the County of Cook, and State of Illinois, and known and described as follows, to wit Qiere describe the premises as directed in Form 211). To Have and to Hold the said above-described premises, with the appurtenances, unto the said party of the second part, and his executors, administrators, and assigns, from the day of in the year of our Lord one thousand eight hundred and for and during, and until the day of in the year of our Lord one thousand eight hundred and the said party of the second part paying rent therefor, as hereinafter stated. And the said party of the second part, in consideration of the leasing the premises aforesaid, by the said party of the first part, to the said party of the second part, does covenant and agree with the said party of the first part, and his heirs, executors, administrators, and assigns, to pay the said party of the first part, at the house {or office or store) of the said party of the first part, numbered in Street, Chicago, or at the house or office of his assigns, as rent for the said demised premises, the sum of {st.ite the whole annual rent) payable as follows {here state the times and terms of the pay- jnents of rent). And it is further agreed by the said party of the second part, in consid- eration of the leasing of the premises, that the said party of the second part shall and will pay, or cause to be paid, promptly, as soon as the same becomes due, all assessments for water-rents that may be levied upon said demised premises, during the continuance of this lease, by the Board of Water Com- missioners of the city of Chicago, and save the said premises and the said 620 LEASES. party of the first part harmless therefrom, and that he v.ill keep said premises in a clean and healthful condition, in accordance with the ordinances of the city and the direction of the Sewerage Commissioners. And the said party of the second part hereby covenants and agrees, in case of delay in payment of any water-rent levied upon said premises during said term, to pay said party of the first part, as liquidated damages for such breach of covenant, double the sum of such rent so assessed upon said prem- ises as aforesaid. And the said party of the second part further covenants with the said party of the first part, that at the expiration of the time in this lease men- tioned, he will yield up the said demised premises to the said party of the first part, in as good condition as when the same were entered upon by the said party of the second part, loss by fire or inevitable accident, and ordinary wear excepted. It is further agreed by the said party of the second part, that neither he nor his legal representatives will underlet said premises, or any part thereof, or assign this lease, without the written assent of said party of the first part, first had and obtained thereto. It is Expressly Understood, and Agreed, By and between the parties aforesaid, that if the rent above reserved, or any part thereof, shall be behmd or unpaid on the day and at the place of payment whereon the same ought to be paid, as aforesaid, or if default shall be made in any of the covenants herein contained, to be kept by the said party of the second part, or his executors, administrators, and assigns, it shall and may be lawful for the said party of the first part, or his heirs, executors, administrators, agent, attorney, or assigns, at his or their election, to declare said term ended, and the said demised premises, or any part thereof, either with or without process of law, to re-enter, and the said party of the second part, or any other person or persons occupying, in or upon the same, to expel, remove, and put out, using such force as may be necessary in so doing, and the said premises again to repossess and enjoy as in his or their first and former estate ; and it shall be the duty of the said party of the second part, his executors, admin- istrators, or assigns, to be and appear at the said place above specified for the payment of said rent, and then and there tender and pay the same as the same shall fall due from time to time, as above, to the said party of the first part, or his agent or assigns ; or in his or their absence, if the party of the second part, or his legal representatives, shall offer to pay the same then and there, such offer shall prevent such forfeiture. And it is expressly understood that it shall not be necessary in any event for the party of the first part, or his assigns, to go on or near the said demised premises to demand said rent, or elsewhere than at the place aforesaid. And in the event of any rent being due and unpaid, whether before or after such for- feiture declared, to distrain for any rent that may be due thereon, upon any property belonging to the said party of the second part, whether the same be exempt from execution or distress by law or not, and the said party of FORMS OF LEASES. 62 1 the second part, in that case,, hereby waives all legal rights which he may have to hold or retain any such property, under any exemption laws now in force in this State, or in any other way. Meaning and intending hereby to give to the said party of the first part, and his heirs, executors, administrators, and assigns, a valid and first lien upon any and all the goods, chattels, or other property belonging to the said party of the second part, as security for the payment of said rent, in manner aforesaid, anything hereinbefore con- tained to the contrary notwithstanding. And if at any time said term shall be ended at such election of said party of the first part, or his heirs, execu- tors, administrators, or assigns, as aforesaid, or in any other way, the said party of the second part, for himself and his executors, administrators, and assigns, does hereby covenant, promise, and agree to surrender and deliver up said above-described premises and property, peaceably to the said party of the first part, or his heirs, executors, administrators, and assigns, imme- diately upon the determination of said term as aforesaid ; and, if he shall remain in the possession of the same days after notice of such default, or after .the termination of this lease, in any of the v/ays above named, he shall be deemed guilty of a forcible detainer of said demised premises under the statute, and shall be subject to all the conditions and provisions above named, and to eviction and removal, forcibly or otherwise, with or without process of law, as above stated ; and in order to enforce a forfeiture of this lease for non-payment of rent when due, no demand for rent when due shall be required, any demand being hereby expressly waived. And it is further covenanted and agreed by and betv/een the parties, that the party of the second part shall pay and discharge all costs and attorney's fees and expenses that shall arise from enforcing the covenants of this inden- ture by the party of the first part. In Testimony Whereof, The said parties have hereunto set their hands and seals the day and year first above written. (Signature of lessor) {Seal) [Signattire of lessee) (Seal) In Presence of (216.) A Lease with Provisions for Taxes and Assessments. This Indenture, Made the day of in the year one thousand eight hundred and between («(7»«^ and residence of lessor) of the first part, and (name and residence of lessee) of the second part, witnesseth, that the said party of the first part, for and in consideration of the rents, covenants, and agreements hereinafter mentioned, reserved, and contained, on the part and behalf of the said party of the second part, his executors, administrators, and assigns, to be paid, kept, and performed, has granted, demised, and to farm letten, and by these presents does grant, demise, and to farm let, unto the said party of the second part, and his executors, administrators, and assigns, all (describe the premises as directed in Form 211). 622 LEASES. To Have and to Hold the said above mentioned and described premises, with the appurtenances, unto the said party of the second part, his executors, administrators, and assigns, from the day of one thousand eight hundred and for and during and until the full end and term of thence next ensuing; and fully to be complete and ended, yielding and paying therefor unto the said party of the first part, his heirs or assigns, yearly, and every year during the said term hereby granted, the yearly rent or sum of lawful money of the United States of America, in equal quarter-yearly payments, to wit : on the first day of {name the monihs) in each and every of the said 3ears : Provided always, nevertlieless, that if the yearly rent above reserved, or any part thereof, shall be behind or unpaid on any day of payment whereon the same ought to be paid as aforesaid ; or if default sliall be made in any of the covenants herein contained, on the part and behalf of tlie said party of the second part, his executors, administrators, and assigns, to be paid, kept, and performed, then and from thenceforth it shall and may be lawful for the said party of the first part, his heirs or assigns, into and upon the said demised premises, and every part thereof, wholly to re-enter and remove all persons therefrom, and the same to have again, repossess, and enjo)', as in his or their first and former estate, anything hereinbefore contained to the contrary thereof in anywise notwithstanding. And the said party of the second part, for himself and his heirs, executors, and administrators, does cove- nant and agree, to and with the said party of the first part, his heirs and assigns, by these presents, that the said party of the second part, his executors, administrators, or assigns, shall and will yearly, and every year during the said term hereby granted, well and truly pay, or cause to be paid, unto the said party of the first part, his heirs or assigns, the said yearly rent above reserved, on the days and in manner limited and prescribed as aforesaid, for the payment thereof, without any deduction, fraud, or delay, according to the true intent and meaning of these presents. And that the said party of the sec- ond part, his executors, administrators, or assigns, shall and will, at their own proper costs and charges, bear, pay, and discharge all such taxes, duties, and assessments whatsoever, as shall or may, during the said term hereby granted, be charged, assessed, or imposed upon the said demised premises. j'\nd that on the last day of the said term, or other sooner determination of the estate hereby granted, the said party of the second part, his executors, administrators, or assigns, shall and will peaceably and quietly leave, sur- render, and yield up unto the said party of the first part, his heirs or assigns, all and singular the said demised premises. And the said party of the first part, for himself and his heirs, executors, and administrators, does covenant and agree to and with the said party of the second part, his executors, administrators, and assigns, by these pres- ents, that the said party of the second part, his executors, administrators, or assigns, paying the said yearly rent above reserved, and performing the covenants and agreements aforesaid on his and their part, the said party FORMS OF LEASES. 623 of the second part, his executors, administrators, and assigns, shall and may at all times during the said term hereby granted, peaceably and quietly have, hold, and enjoy the said demised premises, without any manner of let, suit, trouble, or hindrance of or from the said party of the first part, his heirs or assigns, or any other person or persons whomsoever. In "Witness Whereof, The said parties have hereunto set their hands and seals, interchangeably, to two copies of this indenture. {Signature of lessor.) {Seal.) {Signature of lessee.) {Seal.) In Presence of (217.) A Lease, with Covenants about Water-Rate, and Injury by- Fire, in use in New York. Tills Agreement, IVIade between {name and residence of lessor) party of the first part, and {name and residence of lessee) party of the second part, witnesseth, that the said party of the first part has agreed to let, and hereby does let, and the said party of the second part has agreed to take, and hereby does take, the following-described premises {here describe the prem- ises, as in Form 211) for tlie term of to commence and to end to be occupied {describe the intended occupation) and not otherwise. And the said party of the sec- ond part hereby covenants and agrees to pay unto the said party of the first part the annual rent or sum of dollars, payable {state the times and terms of the payments). And shall also pay the Croton water-rate, and will keep the plumbing work, pipes, glass, and the premises generally in repair, and will surrender them at the expiration of the said term, in as good state and condition as reasonable use and wear thereof will permit. And the said party of the second part further covenants that he v/ill not assign, let, or underlet the whole or any part of the said premises, nor make any alteration therein without the written consent of the said party of the first part, under the penalty of forfeiture and damages ; and that he will not occupy the said premises, nor permit the same to be occupied for any business deemed extra-hazardous without the like consent, under the like penalty. And the said party of the second part further covenants that he will permit the said party of the first part, or his agent, to show the premises to per- sons wishing to hire or purchase, and three months next preceding the expiration of the term will permit the usual notices of " to let," or " for sale," to be placed upon the windows, walls, or doors of said premises, and remain thereon without hindrance or molestation. And also, that if default be made in any of the covenants herein contained on the part of the party of the second part, or if the said premises or any part thereof shall become vacant during the said term, the said party of the first part may re-enter the same, either by force or otherwise, without being liable to any prosecution therefor ; and re-let the said premises or any part 624 LEASES. thereof in one or more parcels, as the agent of the said party of the second part, and receive the rent thereof, applying the same, first to the payment of such expense as he may be put to in re-entering, and then to tlie payment of the rent due by these presents ; and the balance (if any) to be paid over to the said party of the second part; and, in case of deficiency, said party of the second part will pay the same. And the said i^arty of the second part hereby further covenants that if any default be made in the payment of the said rent, or any part thereof, at the times above specified, or if default be made in the performance of any of the covenants or agreements herein contained, the said hiring, and the relation of landlord and tenant, at the option of the said party of the first part, shall wholly cease and determine ; and the said party of the first part shall and may re-enter the said premises, and remove all persons therefrom ; and the said party of the second part hereby expressly v.-aive the service of any notice in -writing of intention to re-enter, as provided for in the third section of an act entitled "An Act to abolish Distress for Rent, and for other Pur- poses," passed May 13, 1846. And it is further agreed between the parties to these presents, that, in case the building hereby leased shall be partially damac;ed by fire, the same shall be repaired as speedily as possible by the party of the first part ; that, in case the damage shall be so extensive as to render the building untenant- able, the rent shall cease until the same be repaired; provided the damage be not caused by the carelessness or negligence of the party of the second part, or his agents or servants. If the building be so damaged that the owner shall decide to rebuild, the term shall cease, the premises be surrendered, and the accrued I'ent be paid up to the time of the fire. In consideration of the letting of the premises above mentioned to the above named {name of the lessee) and of the sum of one dollar to him paid by the said party of the first part, the said party of the second part does hereby covenant and agree to and with the party of the first part above named, and his legal representatives, that if default shall at any time be made by the said party of the second part, in the payment of the rent and performance of the covenants above contained on his part to be paid and performed, that he will well and truly pay the said rent or any arrears thereof, that may remain due unto the said party of the first part, and also all damages that may arise in consequence of the non-performance of said covenants, or either of them, without requiring notice of any such default from the said party of the first part. Witness our hands and seals this day of in the year of our Lord one thousand eight hundred and ( IViiiicss.) {Signature of lessor.) {Seal.) {Signature of lessee.) {Seal.) J^OJiJIfS OF LEASES. 625 (218.) A Lease by Grant, in use in the Western States. This Indenture, Made and entered into on the day of one thousand eight hundred and by and between {name of lessor) of {residence of lessor) party of the first part, and {jiame of leasee) of {residence of lessee) party of the second part, witnesseth, that the said party of the first part, in consideration of the rents reserved, and, the covenants hereinafter contained, does hereby grant, demise, and to farm let, unto the said party of the second part {describe the premises as in Form 21 1). To Have and to Hold the Same, With all the rights, immunities, privi- leges and appurtenances thereto belonging, unto the said party of the second part, and his executors, administrators, and assigns, for and during the full end and term of commencing on the day of 18 , and ending on the day of 18 , under and subject to the stipulations hereinafter contained, the said party of the second part yielding and paying to the said party of the first part, for the said premises, the annual rent of payable in equal quarterly {or monthly) payments ; that is to say on the during said term ; which rent the said party of the second part, for himself and his executors, administrators, and assigns, cov- enants well and truly to pay, at the times aforesaid. And the said party of the second part covenants and agrees that if the rent aforesaid should at any time remain due and unpaid, the same shall bear interest at the rate of per cent, per annum, from the time it so becomes due, until paid. And the said party of tlie second part further cov- enants and agrees that it shall be lawful for the said party of the first part, and those having freehold estate in the premises, at reasonable times to enter into and upon the same, to examine the condition thereof ; and also that the said party of the second part, and his legal representatives, shall and will, at the expiration of tliis lease, whether by limitation or forfeiture, peace- ably yield up to the said party of the first part, or his legal representatives, the said premises, in the condition received, only excepting natural wear and decay, and the effects of fire ; and that the said party of the second part, for and during all the time that he, or anyone else in his name, shall holdover the premises after the expiration of this lease, in either of said ways, shall and will pay to said pasty of the first part double the rent hereinbefore reserved. Also the said party of the second part further covenants and agrees that any failure to pay the rent hereinbefore reserved, when due, and within days after a demand for the same, shall produce an absolute forfeiture of this lease, if so determined by said party of the first part, or his legal represen- tatives. Also that this lease shall not be assigned, nor the said premises, or any part thereof, underlet, without the written consent of the said party of the first pirt, or his legal representatives, under penalty of forfeiture. And that all repairs of a temporary character, deemed necessary by said party of 40 6^6 LEASES. the second part, shall be made at his own expense, with the consent of the said party of the first part, or his legal representatives, and not otherwise. Provided Always, and these presents are on this express condition, that if the said party of the second part, or his legal representatives, shall fail to pay the rent hereinbefore reserved, for the space of days after the same shall have become due, or shall fail to perform any of the covenants hereinbefore entered into on his and their part, tlien the said party of the first part shall be at liberty to declare this lease forfeited, by serving a written notice to that effect on the said party of the secord part, or his legal repre- sentatives, and to re-enter upon and take possession of the demised premi- ses, free from any claim of the lessee or any one claiming under him. And all estate herein granted shall, upon service of such notice, forthwith cease, and said lessor, his heirs, legal representatives, or assigns, shall be forthwith entitled to the possession of the demised premises without any further pro- ceeding at law or otherwise, to recover possession thereof. And the said party of the first part covenants and agrees with the said party of the second part, and his legal representatives, that, the covenants herein contained being faithfully performed by the said party of the second part, he shall peaceably hold and enjoy the said demised premises, during the term aforesaid, with- out hindrance or interruption by the said lessor or any other person. In Witness Whereof, The said parties have executed this indenture in duplicate, signing their names and affixing their seals to both parts thereof, the day and year in this behalf above written. {Signature of lessor^ (Seal.) {Signature of lessee.) {Seal.) In Presence of (219.) A Lease by Certificate, with Surety. This is to Certify, That I have let and rented unto {name of lessed) {describe the premises, as in Form 211) for the term of from the day of 18 at the annual rent of dollars, payable {state time of payment). The premises above mentioned, or any part thereof, shall not be let or underlet without the written consent of the landlord, under penalty of forfeiture and damages ; nor shall the same be used or occupied for any business deemed hazardous on account of fire, without the like consent under the like penalty. Given under my hand and seal the day of iS {Signature.) {Seal.) { IViincsses.) This is to Certify, That I have hired and taken from {name of lessor) {describe the premises ni the same way as in the preceding pari) for the term of from the day of 18 at the rent of dollars, payable And I hereby promise to make punctual paynient of the rent in manner FORMS OF LEASES. 627 aforesaid, and to quit and surrender tlie premises, at tne expiration of said term, \\\ as p;ood slate and condition as reasonable use and wear tliereof will permit, damages by the elements excepted, and engage not to let or underlet the whole cr any part of the said premises, without the written consent of the L-indlord, under the penalty of forfeiture and damages ; and also not to use or occupy the said premises for any business deemed extra hazardous, on account of fire, without the like consent, under the like penalty. Given under my hand and seal the day of iS {Signature^ {Seal.) ( Witnesses.) In Consideration of the letting of the premises above described, and for the sum of one dollar, I do hereby become surety for the punctual pay- ment of the rent, and performance of the covenants, in the above written agreement mentioned, to be paid and performed by {iiame of lessee) and if any default shall be made therein, I do hereby promise and agree to pay unto {name of lessor) such sum or sums of money as will be sufficient to make up such deficiency, and fully satisfy the conditions of the said agreement without requiring any notice of non-payment, or proof of demand being Vnade. Given under my hand and seal the day of i8 ( IVz'/fiesses.) (220.) {Signatured) {Seal.) A Lease of City Property, in use in St. Lcnis. TMs Indenture, Made the day of in the year of iur Lord eighteen hundred and between {name and residence of the lessor) of the first part, and {name and residence of lessee) of the second part, witnesseth. That the said party of the first part, in considera- tion of the rents, covenants, and stipulations hereinafter mentioned, and hereby agreed to be paid, kept, and performed by the said party of the second part, his executors, administrators, and assigns, hath leased, and by these presents doth lease, to the said party of the second part the following- described premises {here describe the house, as of brick, or stone, mimber of stories, and number in the block) in block No. in the city of St. Louis, to commence on the day of l8 for and during the term of at the annual rent of payable in four equal quarterly payments, beginning three months from the date hereof. Any failure to pay each payment of rent when due, to produce a forfeiture of this lease, if so determined by said lessor or his successors. The lease of said tenement or any part of it is not assignable, nor is said tenement or any part of it to be underlet, without the written consent of said lessor, uuder penalty of forfeiture. And it is hereby covenanted, that, at the expiration of this lease, the said tenement and premises are to be surrendered to said lessor, his heirs, assigns, or successors, in the condition received, only excepting its natural wear and decay, or the effects of accidental fire. All 628 LEASES. repairs deemed necessary by said lessee to be made at his expense. All fixtures shall be bound for the rent. The said lessee and all holding under him hereljy engaging to pay the rent above reserved, and double rent for every day when he or any one else in his name shall hold on to the whole or any part cf said tenement, after the expiration of this lease, or cf its forfeiture for non-payment of rent, etc. This tenement and premises to be kept free of any nuisance in or adjacent thereto, at the expense of the said lessee. {Signature of lessor^ {Seal.) {Signature of lessee.) iSeal.) {Witness.) (221.) "What is called a Country Lease, in use in the Western States. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and between {name of lessor) of the of in the County of and State of party of the first part, and {name and residence of lessee) party of the second part, witnesseth, That the said party of the first part for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and per- formed by the said party of the second part, his executors, administrators, and assigns, has demised and leased to the said party of the second part all those premises situate, lying and being in the township of County of State of known and described as follows, to wit {describe the premises in such way as to identify them perfectly by situation., metes, and bounds, or otherwise). To Have and to Hold the said above-described premises, with the appur- tenances, unto the said party of the second part, and his executors, administrators, and assigns, from the day of in the year of our Lord one thousand eight huadred and for and during, and until the day of in the ^-ear of our Lord one thousand eight hundred and paying rent therefor as hereinafter stated. And the said party of the second part, in consideration of the leasing of the premises aforesaid, by the said parly of the first part, to the said party of the second part, does covenant and agree with the said party of the first part, and his heirs, executors, administrators, and assigns, to pay the said party of the first part, as rent for the said demised premises, the sum of dollars, annual rent, payable quarterly, in four equal quarterly payments, the first payment to be due and made in three months from the date of this lease, payable at the (liere state the place where the rent should be paid). And the said pafty of the second part further covenants with the said party of the first part, that at the expiration of the time in this lease mentioned, he will yield p the said demised premises to the said party of the first part, in as good condition as when the same were entered upon by FORMS OF LEASES. 629 the said party of the second part, loss by fire or inevitable accident, and ordinary wear excepted. It is further agreed by the said party of the second part, that neither he nor his legal representative will underlet said premises, or any part thereof, or assign this lease, without the written assent of said party of the first part, first had and obtained thereto. It is Expressly XTriderstood and Agreed by and between the parties aforesaid, that if the rent above reserved, or any part thereof, shall be behind or unpaid, on the day and at the place of payment, whereon the same ought to be paid, as aforesaid, or if default shall be made in any of the covenants herein contained, to be kept by the said party of the second part, his executors, administrators, and assigns, it shall and may be lawful for the said party of the first part, his heirs, executors, administrators, agent, attorney, or assigns, at his or their election, to declare said term ended, and the said demised premises, or any part thereof either with or without process of law, to re-enter, and the said party of the second part, or any other per- son or persons occupying, in or upon the same, to expel, remove, and put out, using such force as may be necessary in so doing, and the said premises again to repossess and enjoy, as in his or their first and former estate; and it shall be the duty of the said party of the second part, his executors, admin- istrators, or assigns, to be and appear at the said place above specified, for the payment of said rent, and then and there tender and pay the same as the same shall fall due from time to time, as above, to the said party of the first part, or his agent or assigns; or in his or their absence, if the said party of the second part shall offer to pay the same then and there, such offer shall prevent said forfeiture. And it is expressly understood that it shall not be necessary in any event for the party of the first part or his assigns, to go on or near the said demised premises to demand said rent, or el.sev/here than at the place afore- said. And in the event of any rent being due and unpaid, whether before or after such forfeiture declared, to distrain for any rent that may be due thereon, upon any property belonging to the said party of the second part, whether the same be exempt from execution or distress by law or not, and the said party of the second part, in that case, hereby waives all legal rights v/hich he now has or may have to hold or retain any such property, under any exemption laws now in force in this State, or in any other way. Mean- ing and intending hereby to give to the said party of the first part and his heirs, executors, administrators, and assigns, a valid and first lien upon any and all the goods, chattels, or other property belonging to the said party of the second part, as security for the payment of said rent in manner afore- said, anything hereinbefore contained to the contrary notwithstanding. And if at any time said term shall be ended at such election of said party of the first part, or his heirs, executors, administrators, or assigns, as aforesaid, or in any other way, the said party of the second part, for himself and his executors, administrators, and assigns, does hereby covenant, promise, and 630 LEASES. agree to surrender and deliver up said above-described premises and property, poaceaLly, to said party of the first part, or his heirs, executors, administrators, rnd assigns, iiiimediitely upon tl.e determination of said term as aforesaid; and if he shall remain in the possession cf the same days after notice of suc'.i default, or after the terminalion of this lease, in any of the ways above named, he shall be deemed guilty of a forcible detainer of said demised premises, and shall be subject to all the coni'iiions and provisions above named, and to eviction and removal, forcibly or otherwise, with or wilhout process of law, as above stated. And it is further covenanted and agreed by and between the parties, that the party of the second part .'hail pay and discharge all costs and attorney's fees and expenses that shall arise from enforcing the covenants cf this indenture by the party of the fir.st part. In Testimony Wihercof, The said parties have hereunto set their hands and seals the day and ye^r first above written. {Signature cf lessor) {Seal) {Signature of lessee^ {Seal.) In Presence of (223.) A GroLind Lease. TMs Indenture, Made this day cf in the year of our Lord one thousand eight hundred and between {name and residence of lessor) party of the first part, and {name end residence of lessee) party of the second part, witnesseth. That the said party of the first part for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by the party of the second part, hath demised and leased to the party of the second part, all those premises situate in the of in the County of and State of known and described as follows, to wit (liere give such description of the premises as shall identify them, and distinguish them from any other). To Have and to Hold The above described premises, v.ith the appur- tenances, unto the party of the second part, from the day of in the year of our Lord one thousand eight hundred and for and during, and until the . And the party of the second part, in consideration of the leasing of the premises aforesaid, does covenant and agree with the party of the first part to pay to the party of the first part as rent for said demised premises, at the ofliice of in the sum of {state the S7im to be paid as anmial rent) in four equal quarterly payments, each of them the sum of dollars, to be paid on the first {or other) day of the month of {the four months in which the rent is payable) in each year {or describe otherwise the terms and times of the pay- ments as they may have been agreed upon); and also that the said party of the second part will pay, or cause to be paid, all water-rates, and all taxes, FORMS OF LEASES. 63 1 and assessments tliat may be laid, charged or assessed on said demised premises pending tlie existence of tliis lease ; or if at any time after any tax, assessment, or water-rate shall have become due or payable, the party of the second part, or his legal representatives, shall neglect to pay such water- rates, tax, or assessment, it may be lawful for the party of the first part to pay the same at any time thereafter, and the amount of any and all such payments so made by the party of the first part shall be deemed and taken, and are hereby declared to be, so much additional and further rent, for the above demised premises, due from and payable by t'.ic party of the second part ;' and may be collected in the same manner, by distress or otherwise, as is hereinafter provided for the collection of other rents to grow due thereon. And it is expressly understood and agreed by the said party of the second part hereto, for himself and his heirs, executors, administrator-?, and assigns, that the whole amount of rent reserved, and agreed to be paid for said above demised premises, and each and every installment thereof, shall be and is hereby declared to be a valid and first lien upon any and all buildings and improvements on said premises, or that may at any time be erected, placed, or put on said promises by said party of the second part, or his heirs, exec^ utors, and administrators, or assigns, and upon his or their interest in this lease, and the premises hereby demised ; and that whenever, and as often as any installment of rent or any other amount above declared to be deemed and taken as rent, shall become due and remain unpaid f.)r one day after the same becomes due and payable, said party of the first part, his heirs, exec- utors, administrators, agent, attorney, or assigns, may sell at public auction to the highest bidder for cash, after having first given ten days' notice of the time and place of such sale in some newspaper published in all the buildings and improvements on said premises, and all the right, title, and interest acquired by said party of the second part, under this lease, to the premises herein described, and as the attorney of the said party of the second part — hereby irrevocably constituted — may make to the purchaser or purchasers thereof, a suitable and proper transfer bill of sale or deed of the same — and out of the proceeds arising from such sale, after first paying all costs and expenses of such sale, including commissions and attorney's fees ^-retain to himself the whole amount due on said lease up to the date of said sale, rendering the surplus (if any) to said party of the second part, his heirs, executors, administrators, agent, attorney, or assigns, which sale shall be a perpetual bar to and agai nst all rights and equities of said party of the second part, his heirs and assigns in and to the property sold. And the party of the second part further covenants with the party of the first part, that, at the expiration of the time in this lease mentioned, he will yield up said demised premises to the party of the first part, in as good condition as when the same were entered upon by the party of the second part, loss by fire, or inevitable accident and ordinary wear excepted. 632 LEASES. It is further agreed by the party of the second part, that neilher he nor his legal representatives will underlet said premises, or any part thereof, or assigii this lease, without the Avritten assent of said party of the first part first had and obtained thereunto, nor use or suffer ihem to be used for any purpose calculated to injure the reputation of the premises, or cf the neigh- borhood, or to impair the value of the surrounding neighborhood property for present use or otherv.-ise. It is ExproHsly Understood and AjTOod, Cy and between the par- ties aforesaid, that if the rent above reserved, or any part thereof, shall be behind or unpaid on the day of payment whereon the same ought to be paid, as aforesaid, or if default shall be made in any of the covenants herein con- tained to be kept by the party of the second part, executors, administrators, or assigns, it shall and may be lawful for the party of the first part, or his heirs, executors, administrators, agent, attorney, or assigns, at his or their election, to declare said term ended, and into the said demised premises, or any part thereof, either with or without j^rocess of law, to re enter, and the party of the second part or any other person or persons occupying, in or upon the same, to expel, remove, and put out, using such force as may be necessary in so doing, and the said premises again to repossess and enjo}', as cf his or their first and former estate ; and to distrain for any rent that may be due thereon, upon any properly belonging to the party of the second part, whether the same be exempt from execu- tion and distress by law or not ; and the party of the second part, in that case, hereby waives all legal rights which he now has or may have, to hold or retain any such property under any exemption laws now in force in this State, or in any other way ; meaning and intending hereby to give the party of the first part, his heirs, executors, administrators, agent, attorney, cr assigns, a vahd and first lien upon any and all the goods, chattels, or other property belonging to the party cf the second part, as se- curity for the payment of said rent, in manner aforesaid, anything hereinbe- fore contained to the contrary notwithstanding. And if at any time said term shall be ended at such election cf said party of the first part, or his heirs, executors, administrators, agent, attorney, or assigns, as aforesaid, oi' in any other way, the party of the second part does hereby covenant and agree to surrender and deliver up said above described premises and prop- erty peaceably to the party of the first part, or his heirs, executors, admin- istrators, agent, attorney, or assigns, iminediately upon the determination of said term as aforesaid ; and if the said party of the second part, or his legal representatives, shall reinain in possession of the same one day al!ter notice of such default, or after the termination of this lease, in any of the ways above named, he or they shall be deeined guilty of a forcible detainer of the premises, and shall be subject to all the conditions and provisions above named, and to eviction and removal, forcibly or otherwise, with or without process of law, as above stated. And it is further understood and agreed by the said party of the FORMS OF LEASES. 633 second part, thr.t neither the right given in this lease, to said jjarty of the first part, to collect the rent that may be due under the terms of this lease by sale, or any proceedings under the same, shall in any way affect the right of said party of the first part to declare this lease void, and the term hereby created ended, as above provided upon default made by said party of the second part. And tl;e said party cf the first part hereby waives his right to any notice from said party cf the second part, of his election to declare this lease at an end, under any cf its provisions, or any demand for the payment of rent, or the possession of premises leased herein ; but the simple fact of the non- payment of the rent reserved shall constitute a forcible entry and detainer as aforesaid. And said party cf the second jjart further agrees not to remove any buildings or oilier improvements from said prem.ises, v.ithout written con- sent of said party of the first part, and that the said second party shall pay and discharge all costs and attorney's fees and expenses that shall arise from enforcing the covenants cf this indenture, by the, party of the first part. // is fiirtrter understood and agreed, That all the conditions and cov- enants contained in this lease shall be binding upon the heirs, executors, administrators, and assigns of the parties to these presents respectively. In Testimony "Whereof, The said parties have hereunto set their hands and seals, the day and year first above written. {Signature of the lessor) (Seal.) {Signature of the lessee) {Seal.) Signed, Sealed, and Delivered in Presence of (223.) An Assignment of Lease, and Ground-Rent. This Indenture, made the day of in the year of our Lord one thousand eight hundred and between {name and residence of the assignor) party of the first part, and {name and residence of the assignee) party of the second part, witnesseth. That the said party of the first part, for and in consideration of the sum of dollars, lawful money of the United States of America, unto him in hand well and truly paid by the said party of the second part, at the time of the execution hereof, the receipt whereof is hereby acknowledged, by these presents does grant, bargain, sell, assign, release, and confirm unto the said party of the second part a certain indenture, made and executed on the day of in the year cf our Lord eighteen hundred and whereby the said party of the first part leased to one {riame of the lessee in the lease here assigned) certain premises therein described as follows {here copy the description of the premises in that lease) reserving a certain rent, payable to said party of the first part ; that is to say Ijiere state the rent reserved in that 634 LEASES. lease) payr.blc {here state the times and terms of payment) together with the said rent to the said party of the first part, payable as aforesaid. Together v.ilh all right and power of entry and distress and of re-entry, and all other the covenants, ways, means, and remedies for the recovery thereof, and all and singular the rights, incidents, and appurtenances whatso- ever, thereunto belonging, and the reversions and remainders thereof, and all the estate, right, title, interest, property, claim, and demand whatso- ever, of him the said j^arty of the first part, or his legal rc;,resentatives, either in law or equity, as v.-ell of, in, and to the said yearly rent cr sum hereby granted and assigned, as al.o of, in, and to the said lot or piece of ground, with the appurtenances, for and out of which the same rent is issuing and payable. To have and to hold, receive and trd^o, all and singular the hereditaments and premises hereby granted and assigned, with the rights, remedies, incidents, and appurtenances, unto the said party of the second part, his heirs and assigns, to and for the only proper use and behoof of him the said party of the second part, his heirs and assigns forever. And the said party of the first part, and his heirs, all and singular the heredi- taments and premises hereby granted and assigned, with the rights, remedies, incidents, and appurtenances, unto the said party cf the second part, and his heirs and assigns, against him the said party of tl:c first part and his heirs, and against all and every other person and persons whomsoever, lawfully claiming or to claim, by, from, or under him cr them, or any of them, shall and will warrant and forever defend by these presents. In Witness Y/herecf, The said parties to these presents have hereunto interchangeably set their hands and seals the day and year hereinbefore first written. {Signature of the assignor.) {Seal.) (Signature of ti.c assignee.) {Seal.) Sealed and Delivered in the Frcsenee of its., {ll'i.'nesses.) Received the day of the date cf the above indenture cf the above- named the sum of being the full conbiJeradon money above mentioned. {Signature cf the assignori) ( I Fitness.) On tlio day of Anno Domini, iS , before me, personally appeared the above-named {name of the assignor) and in due form of law acknowledged the above indenture to be his free act and deed, and desired the same might be recorded as such. Witness my hand and seal the day and year aforesaid. {Signature ) {Seal.) FOIiMS OF LEASES. 635 (224.) A Lease containing Chattel Mortgage Covenants, to secure tlie Rent. Tliis Indonturo. Made this day of in the year of our Lord one thousand eight hundred and between {/mine and residence of lessor) of the first part, and {name and residence of lessee) of the second part, witnesseth. That the said party of the first part, for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by the said party of the second part, his executors, administrators, and assigns, has demised and leased to the said parly of the second part all those premises situate, lying, and being in the cily of in the County of and in the State of known and described as follows, to wit {Jiere describe the premises as in Form 211). To Have and to Hold The said above-described premises, with the appurtenances, unto the said party of the second part, his executors, admin- istrators, and assigns, from the day of in the year of our Lord one thousand eight hundred and for and during and until tlie day of in the year of our Lord one thousand eight hundred and . And the said party of the second part, in consideration of the leasing of the premises aforesaid, by the said party of the first part to the said party of the second part, does covenant and agree with the said party of the first part, his heirs, executors, administra- tors, and assigns, to pay the said party of the first part, as rent for said demised premises, the sum of dollars, in four equal quarterly pay- ments of dollars each (jf ), payable {here state the days when the rent should be paid) at the house {or office, or counting-room, or store) of said party of the first part, in said city of And it is further agreed by the said party of the second part, in con- sideration of the leasing of the premises aforesaid, that the said party of the second part shall and will pay, or cause to be paid promptly, as soon as the same becomes due, all assessments for water-rents that may be levied upon said demised premises during the continuance of tliis lease, and save said premises and the party of the first part harmless from all charges and expenses connected with the supply of water to said premises. And the said party of the second part hereby covenants and agrees, in case of default in the payment of any water-rent levied upon said premises during said term, to pay unto said party of the first part, as liquidated damages for sucii breach of covenant, double the sum of such rent so assessed upon said premises as aforesaid. And the said party of the second part further covenants with the said party of the first part, that he will keep said premises in a clean and healthy condition, in accordance with the ordinances of the city, and directions of the proper authorities. It is further agreed by the said party of the second part, that neither he nor his legal representatives will underlet said premises or any part thereof, ^T^Q LEASES. or assign tliis lease, without the written assent of the said party of the first part first had and obtained thereto. This Indenture Further Witnesseth, Tliatthe said party of the second part, for an-J i;i consideration of the sum of {insert the whole sum to be paid ttndcr tiic lease) dollars, in hand paid, the receipt whereof is hereby acknowl- edged, does hereby grant, sell, convey, and confirm unto the said party of the first part, his heirs and assigns, all and singular the following-described goods rmd chattels, to wit (Jiere give a schedule or list of the articles, describ- ing thci;i sufficiently). Together with all and singular the appurtenances thereunto belonging or in anywise appertaining : to have and to hold the same unto the said party of t'le first part, his heirs, executors, administrators, and assigns, to his and their sole use forever. And the said party of the second part, for himself and for his heirs, executors, and administrators, does covenant and agree with the said party of the first part and his heirs, executors, adminis- trators, and assigns, that he is lawfully possessed of the said goods and chattels as cf his own property ; that the same are free from all incum- brances, and that he will, and his heirs, executors, and administrators shall, warrant and defend the same unto the said party of the first part, and his heirs, executors, administrators, and assigns, against the lawful claims and demands of all persons. provided, Uevertholess, That if the said party of the second part or his heirs, executors, administrators, or assigns, shall well and truly pay, or cause to be paid, unto the said party of the first part or his heirs, executors, administrators, or assigns, the said sum of dollars, rent, above reserved, punctually, and in the manner and at the times and place above mentioned, then and from thenceforth these presents, and everything herein contained, shall cease, and be null and void. And Trovided Also, That it shall be lawful for the said party of the second part, his heirs, executors, and adminisirators, to retain possession of the said granted goods and chattels, and at his own expense to keep and to use and enjoy the same, until the said party of the second part, or his heirs, executors, administrators, or assigns, shall make default in the payment of said rent above specified, at the time or times, and in the manner herein- before contained, or unless the said party of the first part shall fear diminu- tion, removal, or waste for want of proper care, or if the said party of the second part shall sell or aspign, or attempt to sell or assign said goods and chattels, or any part thereof, or if any writ issued from any court shall be levied on any part of the above-described goods and chattels — that then, and in any of the aforesaid cases, all of said sum of dollars, above reserved as rent for said demised premises, shall become due and payable, and tne said party of the first part, his heirs, executors, adminis- trators, and assigns, agents Oi attorneys, or any of them, may elect to take posses-ion of the said property, and for that purpose may pursue the same or any part thereof, wherever it may be found, and also may enter any of the FOJiMS OF LEASES. 637 premises of the said i^arty of the second part, with or without force or process of law, wherever the said goods and chattels may be or be supposed to be, and search for the same, and, if found, to take possession of and remove, and sell and dispose of said property, or so much thereof as may be necessary to pay the rent due, and the balance of rent fcr the whole unexpired term, whether due or not due, at public auction, to the highest bidder, after giving ten days' notice of the time, place, and terms of sale, together with a description of the property to be sold, either by publication in some newspaper in the city of or by similar notices posted up in three public places in the vicinity of such sale, or at private sale, with or without notice, for cash or on credit, as the said party cf the first part, or his heirs, executors, administrators, or assigns, agents or attorneys, or any of them, may elect, and out of the money arising from such sale, to retain, first, all costs and charges for pursuing, searching, taking, removing, keep- ing, storing, advertising, and seUing of such property, goods, chat;cls, and effects, and all prior liens, together with the rent due, and the balance of rent foY the whole unexpired term, whether due or not due, rendering the overplus of the money arising from such sale, and the remainder of said goods and chattels, if any there shall be, unto the said party of the second part, or his legal representatives. It is Expressly Understood and Agreed, by and between the parties aforesaid, that if the rent above covenanted to be paid, or any part thereof, shall be behind or unpaid on the day of payment whereon the same ought to be paid, as aforesaid, or if default shall be made in any of the covenants herein contained, to be kept by the said party of the second part, his execu- tors, administrators, and assigns, it shall and may be lawful for the said party of the first part, his heirs, executors, administrators, agent, attorney, or assigns, at his or their election, to declare said term ended, and into the said demised premises, or any part thereof, either with or without process of law, to re-enter, and that said party of the second part, or any other person or persons occupying, in or upon the same, to expel, remove, and put out, using such force as may be necessary in so doing, and the said premises again to repossess and enjoy, as in his or their first and former estate, and to dis- train for any rent that may be due thereon, upon any property belonging to the said party of the second part, whether the same be exempt from exeru- tion or distress by law or not, and the said party of the second part, in that case, hereby agrees to waive all legal right which he may have to hold or retain any such property, under any exemption-law now in force in this State, or in any other way. And if at any time said term shall be ended at such election of said party of the first part, or his heirs, executors, adminis- trators, or assigns, as aforesaid, or in any other way, the said party of the second part, or his executors, administrators, or assigns, does hereby cove- nant and agree to surrender and deliver up said above-described premises and property, peaceably, to said party of the first part, or his heirs, execu- tors, administrators, and assigns, immediately upon the determination of said 638 LEASES. term as aforesaid, r.nd if he shall remain in possession of the same after such default, or after the termination of this lease in any of the v/ays abqve named, he shall be deemed guilty of a forcible detainer of said demised premises, and shall be subject to all the conditions and provisions above named, and to eviction and removal, forcibly or otherwise, v,-ith or without process cf law, as above stated. In Testimony V/heroof, The said parties have hereunto set their hands and seals the day and year first above written. (Signature of lessor.) {Seal) (Signature of lessee^ (Seal.) In Presence of State 07 couxty of I, Justice of the Peace in and for said county, do hereby certify that this lease and mortgage was duly acknowledged before me by the above-named (name of lessee) this day of A.D. i3. (Seal:) (225.) A Buildins Lease. This Deed cf Leass, Made and entered into, in duplicate, this day of A.D. 18 , between (name of lessor) of County of and State of party of the first part, and (itame of lessee) cf County of and State cf party cf the second part : ■p/itncssotli, That the said party of the first part, in consideration cf the covenants, agreements, and stipulations hereinafter mentioned, as v.ell as the yearly rent of dollars, to be paid to him in four equal quarterly payments in each year (the first payment to be made on the day of A.D. iS ), doth by these presents lease to the said party of the second part for the term of years, which said term begins on the day of 18 , the following-described lot of land, to wit (here deseri'oe the premises as in Form 21 1). The said party of the second part, for himself and his heirs, hereby cove- nants with said lessor and his heirs to pay said rent as aforesaid, and also to pay all city, county, and State taxes, and all other taxes and demands of every description, nature, or kind whatever, which may from time to time be legally required or demanded of said premises, whether general tax or special tax. Every failure, first, to pay the said rent, or any part thereof, when it is respectively made payable ; or, second, to pay the said city, county, and State taxes, and all other taxes and demands, or any part thereof (legally required or demanded of said premises, within the year the sam.e shall become due, assessed to either said lessor, his heirs or representatives, or FORMS OF LEASES. 635 to said lessee or his representatives) ; or, third, to keep and perform any of the other covenants, agreements, or stipulations herein mentioned, shall make and create a forfeiture of this lease, and a termination of the terra for which the above premises were let, and all the estate hereby conveyed shall be absolutely void, if so determined, at any day or time however distant, after such failure, by notice in writing to that effect, given by said lessor, his heirs or assigns, to said lessee or his assigns ; which said notice may be served by posting a copy or duplicate of the same up at one of the most public places on said premises, or by delivering a copy or duplicate of such notice to said lessee or his assigns. This lease of said premises, or any part thereof, is not to be assigned, under penalty of forfeiture, without the written consent of said lessor, his heirs or assigns. At the expiration of this lease, the said premises to be dehvered to said lessor, his heirs or assigns. The said lessee, and all who hold under him, hereby engage to pay double rent for every day they or any one else in their name shall hold on to the whole or any part of said prem- ises, after the expiration of this lease, or after forfeiture thereof. The said lessee is, under penalty of forfeiture, bound to keep said prem- mises free from any disorderly, bawdy, or gambling establishments, dram- shops, tippling-shops, beer-houses, or any nuisances whatsoever. And in case of any forfeiture of this lease, the said lessor, his heirs and assigns, may forthwith take possession of said premises, with all the improvements thereon, and shall be entitled to the same, any custom, usage, or law to the contrary notwithstanding. All improvements erected on said premises by said lessee or his assigns, or by any one who may claim under them, are bound for the payment of each quarterly installment of rent, and for the city, county, and State taxes, and all other taxes and demands as aforesaid, and for any arrears of rent or taxes ; and in case of the punctual payment of the rent and taxes, as herein specified, the said lessee or his assigns is hereby authorized to remove all such improvements (and no others), at the expiration of this lease, which he or any one who may claim under, him, may have erected on said premises during said term. In Testimony "Wliereof, The parties hereto have hereunto set their hands and seals to duplicate leases the day and year aforesaid. {SignaUire of lessor.) {Seal.) {Signature of lessee.) {Seal.) In Presence of (226.) A Mining Lease. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and between (name and residence of the lessor) of the first part, and {name and residence of the lessee) of the second part, witnesseth. That the said party of the first part, for and in 640 LEASES. consideration of the covenants and agreements hereinafter contained on the part of the said party of the second part, and of one dollar in hand paid to the said party of the first part, the receipt whereof is hereby acknowl- edged, has granted and conveyed, and by these presents does grant and convey to the said party of the second part, his heirs, executors, administra- tors, and assigns, the right of entering in and ujoon the lands hereinafter described, for the purpose of searching for mineral and fossil substances, and of conducting mining and quarrying operations, to any extent he or they may deem advisable (but not to hold possession of any part of said lands for any other purpose whatsoever) paying for the site of buildings of any kind, necessary thereto, a reasonable rent. The said lands are situated {here state the sihtation of the preinises leased, and describe them by metes and bounds, di?nensions, and references to other boundaries, so as to distinguish them perfectly^ And the said party of the second part hereby agree that he or his heirs, executors, administrators, or assigns, will pay or cause to be paid to the said party of the first part, his heirs or assigns, an annual rent of the amount of dollars, in four equal quarterly payments, payable severally on the fol- lowing days iliere state the days when tJie payments are to be made, or what- ever other terms or times are agreed upon) and also covenants that no damage shall be done to or upon said lands and premises, other than may be neces- sary in conducting said operations. And it is agreed and covenanted by and between the parties hereunto, that this lease shall be and remain in full force and effect (subject to the proviso hereinafter stated) jears from the date hereof, and no longer. But the said parties of the first and the second part, each for themselves, their heirs, executors, administrators, and assigns, covenant and agree, and this indenture is made with this express proviso, that if no mineral or fossil substance be mined or quarried, as now contemplated by said parties, within the period of years from the present time, then these presents, and everything contained herein, shall cease and be forever null and void. In Testimony Whereof, the parties to these presents have hereunto set their hands and seals the day and year first ftove written. (Signature of lessor.) [Seal.) {Signature of lessee.) {Seal.) Signed, Sealed, and Delivered in Presence of, (227.) A Lease cf Land supposed to contain Oil, Salt, or other Minerals. Articles of Agreement, Made and concluded this day of A.D. 1 8 between {name of lessor) of the township of County of and State of party of the first part, and {name and residence of the lessee) party of the second part, Witnesseth, FORMS OF LEASES. 641 That the said party of the first part, for himself and his heirs, executors, administrators, and assigns, for and in consideration of the sum of one dol- lar, the receipt of which is hereby acknowledged, and for the further consid- eration hereinafter mentioned, and on account of covenants hereinafter con- tained, hereby leases to the said party of the second part, his heirs, executors, administrators, and assigns, the following-described piece or parcel of land, situated in the township of County of and State of bounded and described as follows {describe the premises as in the preceding Form). The said land more fully described in deed of convey- ance by (name of the grantor to the lessor) to the said party of the first part, containing acres, more or less, for the purpose of boring, mining, and operating for oil, salt, and other minerals on said land, for the term of years. Said second parties to have the exclusive right to mine for oil, salt, and other minerals, on said land, during the continuance of said term ; to have the privilege of taking sufficient coal and wood for conducting said boring and mining operations, and timber for derricks and mill-frames and for refineries, and the right to erect all necessary buildings upon said premises for carrying on the business of boring for oil, and mining, refining, and storing away oil and other minerals ; and to have the necessary roads to and from any well or wells that may be bored, or any mines ; and to have pos- session whenever they shall be ready to commence operations. And in case successful in obtaining oil or other minerals, agree to deliver to the said party of the first part {here state the part or proportion which is to be given to the lessor) of all oil, salt, or other minerals obtained. Said party of the first part to find his own barrels, and remove the oil and other minerals belonging to him, as often as required by the second parties. And in case said second parties should not be successful in obtaining oil or other minerals, they shall have the right to remove all engines, tools, machinery, and buildings. And further, it is agreed that said second parties have the right to sub-lease said land for the purpose of boring for oil or other minerals ; the said lessee or lessees being granted all the rights and privileges herein granted to the said party of the second part. Witness our hands and seals this day of , 18 {Signature of lessor) {Seal.) {Signature of lessee) {Seal.) Witnesses. Personally appeared before me, a Justice of the Peace in and for the township of within the County aforesaid and did acknowledge the signing and sealing of the above agreement to be act and deed. Given under my hand this day of 18 Justice of the Peace, 41 643 LEASES. (228.) An Assignment of a Lease. KnoT/ all Men by these Presents, That I [naiiie and residence of as- signor) for and in consideration of tlie sum of dollars, lawful money of tlie United States, to me duly paid, by {name and residence of assignee) have SulJ, and by these presents do grant, convey, assign, trans- fer and set over, unto the said {name of assignee) a certain indenture of lease, bearing date the day of in the year one thousand eight hundred and made by {name of the lessor in the lease assigned) v/hereby he leases to me the f jllov.'ing-described prem- ises {here describe the premises briefly), with all and singular the premises therein mentioned and described, and the buildings thereon, together with the appurtenances. To Havo and to Hold the same unto the said {the name of the assignee) and his assigns, from the day of for and during all the rest, residue, and remainder yet to come of and in the term of years mentioned in the said indenture of lease, and all my rights and privileges in and under said lease ; suljject nevertheless to the rents, covenants, conditions, and provisions therein also mentioned. And I do hereby covenant, grant, promise, and agree to and witli the said {name of the assignee) that the said assigned premises now are free and clear of and from all former and other gifts, grants, bargains, sales, leases, judgments, executions, back rents, taxes, assessments, and incumbrances whatsoever. In Witness Whereof, I have hereunto set my hand and seal this day of one thousand eight hundred and {Signature.) {Seal.) Sealed and Delivered in the Presence of (229.) Landlord's Notice to Quit for Non-Payment of Rent— Short Form. State of ss. A D. iS To {name of tenant). You being in possession of the following-described premises, which you occupy as my tenant {here describe the premises suffi- ciently to identify them) in the city {or township) of and county aforesaid, are hereby notified to quit and deliver up to me the premises aforesaid, in fourteen days from this date, according to law, your rent being due and unpaid. Hereof fail not, or I shall take a due course of law to eject you from the same. Witness. {Signature) FORMS OF LEASES, ETC. 643 (230.) Landlord's Notice to Quit for Non-Payment of Rent— an- other Form. State of City of {date) 18 Tou are hereby notified to quit the premises situate {state the situation of the premises, giving township or city, and street and jiumber) which I have leased to you, reserving rent, or pay and satisfy the rent due and in arrear, being $ which amount was due on the day of 18 and is hereby demanded (you having neglected or refused to pay the amount so reserved, as often as the same has grown due, according to the terms of our contract, and there being no goods on the premises adequate to pay the rent so reserved, except such articles as are exempt from levy and sale by the laws of this State) within days from the date hereof, or I shall proceed against you as the law directs. Yours, etc. (Signature.) To {name of tenant) (231.) Landlord's Notice to pay Rent due, or Quit. State of ) V ss. County op ) {Name of landlord') landlord, against {name of tenant) tenant. Take Notice, That you are justly indebted unto me in the sum of for rent of {home, store, or other premises, describing them generally) from (date when the rent was due and payable), which you are required to pay on or before the expiration of three days from the day of the service of this notice, or surrender up the possession of the said premises to in default of which shall proceed under the provisions of law to recover the possession thereof. Dated this day of , 18 {Name of the landlord) Landlord. To {name of the tenant) Tenant, in possession of the premises above specified. " (232.) Landlord's Notice to leave at End of the Term. To {name and address of the tenant) Sir, — Being in the possession of a certain messuage or tenement, with the appurtenances, situate {describe the pretnises briefly) which said premises were demised to you by me for a certain term, to wit, from the day of A.D. 18 until the day of A.D. 18 , and which said term will terminate and expire on the day and year last aforesaid, I hereby give you notice, that it is my desire to have again 644 LEASES. and re-possess tlie said messuage or tenement, with the appurtenances; and I therefore do hereby require you to leave the same upon the expiration of the said hereinbefore mentioned term. "Witness my hand this day of city of A.D. 18 (Signature.) {Witness) (233.) Landlord's Notice to Determine a Tenancy at Will. State of ss. A.D. 18 To {name of tenant). You being in possession of the following-described premises, whicli you occupy as my tenant at will {describing them sufficiently to iikntify them) in the {city and street) aforesaid, are hereby notified to quit and deliver up to me the premises aforesaid {on such a day, stating here the day as far distant as is made necessary by the requisite length of notice) Bccording to law, it being my intention to determine your tenancy at will. Hereof fail not, or I shall take a due course of law to eject you from the same. {Witness) {Signature.) (234.) Receipt for Rent, in use in New York, Hent payable The tenant mentioned below hereby agrees to pay the rent of the premi- ses occupied and used by on the first day of the term ; and engages to clean the entries, stairs, stoops, and privy thereof, weekly, in turn with ether occupants, and not incumber the same with furniture, fuel, or rubbish, nor keep any hog, dog, or fowl, nor deposit ashes or garbage on said premises, ncr in the sinks or privies, nor split wood on the hearth, floor, or yard. New York, 18 Received from {name of tenant paying) dollars, for month's rent, from 18 to 18 for {stone, brick, or other) house. No Street, in the city of New York. (235.)] Lease in use in the Province of Quebec. On this day, the of in the year of our Lord one thousand eight hundred and before the undersigned Public Notar , duly commissioned and sworn in and for the heretofore Province of Lower Canada, now the Province of Quebec, in the Dominion of Canada, residing in the city of Montreal, in the said Province, appeared {name, residence, and occupation of the lessor) who declared to have let and leased, and by these FORMS OF LEASES, ETC. 645 presents do let and lease, and promise to procure peaceable enjoyment unto (name, residence, and occupation of lessee) present and accepting lessee for for, during, and until the full end and terra of to be accounted and reckoned on and from the day of the month of in the year {insert a description of the premises leased, as directed 171 Form 211). With the whole the said lessee con- tent and satisfied, having seen and viewed the same. The present lease is thus made for and in consideration of the sum of current money of the said Province of Canada, per during the said term, which the said lessee do hereby covenant, promise, and agree, and bind and oblige to well and truly pay, or cause to be paid, to the said lessor or legal representatives, in and by even and equal payments of each ; the first payment whereof to become due and payable on the day of now next ensuing, and thus to continue as aforesaid during all the said term ; and, in further consideration, that the said lessee shall and do hereby promise and agree, and bind and oblige to pay the railway tax, the park tax, the school tax, the water tax, the yearly assessments of said leased premises, and every other tax, charge, and burden which may be imposed or levied thereon, during the said term ; and, further, that the said lessee shall furnish the said leased premises witl^ a sufficient quantity of household furniture or goods to secure the payment of the said rent, keep the premises in repairs {reparations locatives), during the said term, and deliver the same at the expiration of the present lease in as good order, state, and condition as the same may be found in at the commencement of the same, reasonable tear and wear and accidents by fire excepted. It is expressly agreed by and between the said parties tliat the said lessee shall not transfer right in the present lease, or sublet any part or portion of the above rented premises, without the consent, in writing, of the said lessor or representatives. The said lessee shall not .make any alteration in the said leased premises without the consent of the said lessor or representatives ; and, in case any such alterations should be made, then the said lessee shall be bound to put the said leased premises in the same state in which they were at the commencement of the present lease, unless the said lessor prefer that the said alterations should remain, without any compensation being allowed to the said lessee for such alteration. Should any grosses reparations be deemed necessary in the said leased premises, the said lessee shall permit the same to be performed, without pretending or demanding any reduction in the said rent, damages, interest, or compensation ; provided always, that the said repairs be indispensable, and be finished within a reasonable time. The said lessee shall, during the said term, conform to the rules and regulations of police, and pay the sweeping of the chimneys of said leased premises during the said term. The said lessee shall, during the last three 646 LEASES. months of the present lease, al'.ow such person or persons as maybe desirous of obtaining a lease of the said premises to visit the same, and will suffer handbills for that purpose to be placarded and left on the said premises. ' The said lessee shall pay all extra premium of assurance that the com- pany, at which the premises now leased may be insured, shall exact in con- sequence of the business or works dor.o and carried on therein by the said lessee. And for the execution hereof the said parties to these presents have elected domiciles; to wit, the said lessee at and upon the premises now leased, and the said lessor at place of residence above described, where, cSic. Done and Passed at the said city of Montreal, i:i the office of the said notar , under the number thousand hundred and on the day, month, and year first above and before written, and signed by the said with and in the presence of said notar , these presents having been first duly read to the said parties by said notar . (Sigtiatures^ (Seah^ (236.) Lease in use in the Province of Quebec, known as "Private Lease." This Indenture of Lease, Made between {name, residence, and occupa- tion of lessor), of the first part, and {name, residence, and occupation of lessee) of the second part, Witnesseth, That the said do hereby lease for the term of year , from the unto the said hereby present and accepting for that is to say (here describe the premises leased with sufficient distinctness) the said leased premises being well known to the said lessee having seen and examined the same before the execution of these presents, and with the said leased premises content and satis- fied. This lease is thus made subject to the following stipulations: viz., that the lessee shall make all repairs customarily made by tenants, during the present lease, and at the termination thereof shall peaceably surrender the said premises in the like condition as when taken possession of, reason- able tear and wear being allowed ; that shall constantly keep the hereby leased premises furnished according to law for the security of the rent hereinafter stipulated ; that shall not make over interest in the present lease, or sublet the whole or any part of the premises hereby leased, without the consent of the lessor being first obtained in writing for that purpose. The said lessee promise to pay the 3'early taxes or assessments for and during the said term, at whatever rate or amount or for whatever purpose the same may be levied, school tax and all other taxes and assessments, and perform all the requirements of the police and fire departments, to the per- fect exoneration of the lessor ; and during the last three months of the FORMS OF LEASES, ETC. 647 present lease shall allow such person or persons as may be desirous of obtaining a lease of the said premises, to visit the same at seasonable hours; and shall also permit notices of such intended lease to be put up on the premises. The lessee shall also pay any and all extra premiums levied in conse- quence of the business that may be carried on by It is especially and distinctly understood and agreed by and between the parties, that the furniture, goods, chattels, and effects of every kind and description belonging to the lessee shall be security for the payment of the rent for the entire term, and shall not be removed from the said leased premises until the rent for the whole term be paid, even if not due, any law, usage, or custom to the contrary notwithstanding, for without this condition the present lease would not have been made ; nothing herein contained to be deemed or construed as comminatory or evasive, but of rigor. This lease is further made in consideration of the sum of current money of this Province, which the said lessee bind and oblige to well and truly pay to the said lessor or lawful representatives, in equal payments of the first payment whereof to be due and payable on the next. Signed in duplicate, at Montreal, this day of in the year of our Lord one thousand eight hundred and in the presence of (SigJiaiures.) {Seals.) (237.) Lease of Land in use in Ontario and Other Provinces. Tliis Indenture, Made the day of in the year of our Lord one thousand eight hundred and , between {name, residence, and occupation of the lessor), the party of the first part, and {name, residence, and occupation of lessee) the party of the second part, Witnesseth, That in consideration of the rent, covenants, and agree- ments hereinafter reserved and contained, and to be paid, observed, and performed by the said part of the second part, executors, adminis- trators, and assigns, the said part of tlie first part ha demised and leased, and by these presents do demise and lease, unto the said part of the second part executors, administrators, and assigns, all th certain parcel or tract of land and premises situate, lying, and being {describe premises leased with sufficient distinctness to identify them per- fectly). To Have and to Hold the said parcel or tract of land, with the appur- tenances, unto the said part of the second part executors, administrators, and assigns, from the day of oife thousand eight hundred and for the term of from thence next ensuing, and fully to be completed and ended, yielding and paying therefor unto the said part of the first part executors, administrators, and assigns, the yearly rent or sum of of lawful money of Canada, by equal 648 LEASES. payments, on the in each and every year during the said term, the first payment to be made on the day of next ensuing the date hereof. And the said part of the second part doth hereby for heirs, executors, administrators, and assigns, covenant, promise, and agree with and to the said part of the first part, heirs, executors, administrators, and assigns, that the said part of the second part executors, administrators, and assigns, shall and will well and truly pay, or cause to be paid, to the said part of the first part, executors, administrators, or assigns, the said yearly rent hereby reserved, at the times and in manner hereinbefore mentioned for payment thereof, without any deduction or abatement whatsoever thereout, for, or in respect of, any rates, taxes, and impositions, assessment, or otherwise ; and will, during said term, discharge and pay all rates, taxes, assessments, and impositions now payable or here- after to become payable in respect of said ijremises ; and also shall and will perform all statute labor in respect of said premises, during the whole of the term hereby granted. Provided alv/ays, and it is hereby agreed by and between the said parties hereto, that if, at any time or times during the said term, the said rent, or any part thereof, shall be in arrear and unpaid for the space of thirty days after any of the days or times whereon the same ought to be paid as aforesaid, then it shall be lawful for the said part of the first part, heirs, executors, administrators, or assigns, to £nter into and take possession of the premises hereby demised, whether the same be lawfully demanded or not, and the said premises to have again, repossess, and enjoy, as if these presents had never been executed, without the let, hindrance, or denial of the said part of the second part, heirs, executors, admin- istrators, or assigns ; and, further, that the non-fulfilment of the covenants hereinbefore mentioned, or any of them, on the part of the lessee or lessees, shall operate as a forfeiture of these presents, and the same shall be con- sidered null and void to all intents and purposes whatsoever ; and also, that the said part of the second part, executors, administrators, and assigns, shall not nor will, during the said term, grant or demise, or assign, transfer, or set over, or otherwise, by any act cr deed, procure or cause the said premises hereby demised or intended so to be, or any part thereof, or any estate, term, or interest therein, to be granted, assigned, transferred, under- let, or set over unto any person or persons whomsoever, nor carry on any offensive trade or business on the premises, without the consent in writing, of the said part of the first part, heirs or assigns, first had and obtained. And the said part of the second part do hereby for heirs, executors, administrators, and assigns, covenant, promise, and agree, with and to the said part of the first part, lieirs, executors, administrators, or assigns, that the said part of the second part, heirs, executors, administrators, or assigns, will, at the end of the term hereby FORMS OF LEASES, ETC. g .g granted, peaceably and quietly surrender and deliver up possession of the said premises hereby demised to the said part of the first part heirs executors, administrators, or assigns. In Witness Whereof, The parties to these presents have hereunto set their hands and seals the day and year first above written. (Signatures^ (Seals.) Signed, Sealed, and Delivered in the Presence of (238.) Short House Lease in Use in Ontario and other Provinces. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and • in pursuance of the act respecting short forms of leases between (name, residence, and occupa- tion of the lessor) hereinafter called the lessor of the first part, and (name, residence, and occupation of the lessee) hereinafter called the lessee of the second part, Witnesseth, That in consideration of the rents, covenants, and agree- ments hereinafter reserved and contained on the part of the said lessee executors, administrators, and assigns, to be paid, observed, and performed, he the said lessor ha demised and leased, and by these presents do demise and lease unto the said lessee, executors, administrators, and assigns, all th certain (describe the premises leased with sufficient minute- ness to define them perfectly). Together with all the rights, members, and appurtenances whatsoever to the said premises belonging or appertaining. To Have and to Hold the said demised premises, with their appur- tenances, unto the said lessee, executors, administrators, and assigns, for and during the term of to be computed from the day of one thousand eight hundred and and from thenceforth next ensuing, and fully to be completed and ended, yielding and paying therefor yearly and every year, during the said term hereby granted unto the said lessor, heirs, executors, administrators, or assigns, the sum of dollars of lawful money of Canada, to be payable on the following days and times ; that is to say, on the days of and in each year during the said term, the first of such payments to become due, and be made, on the day of next, and the last of such payments to be made in advance, on the day of payment of rent preceding the expiration of the said term. And the said lessee covenant with the said lessor to pay rent, and to pay taxes, and to repair (reasonable wear and tear, and accidents by fire or tempest excepted), and to keep up fences, and not to cut down timber ; and that the said lessor may enter and view the said repair ; and that the said lessee will repair according to notice, and will not assign or sublet without leave, and will not carry on any business that shall be deemed a nuisance 650 LEASES. on said premises ; and that he will leave the premises in good repair. {If there are any other agreements between the parties, they should be inserted here.) And also, that if the term hereby granted shall be at any time seized, or taken in execution, or in attachment, by any creditor of the said lessee, or if the said lessee shall make any assignment for the benefit of creditors, or, becoming bankrupt or insolvent, shall take the benefit of any act that maybe in force for bankrupt or insolvent debtors, the said term shall immediately become forfeited and void, and the full amount of the current rent shall be at once due and payable ; and also, that if the said premises be destroyed, or so much injured as to become unfit for occupation, by fire or other casualty, not caused by the vfilful default or neglect of the said lessee, his executors, administrators, or assigns, the said term hereby demised shall cease, and the current rent shall be fully apportioned, and the due proportionate part thereof shall be at once due and payable. Proviso for re-entry by the said lessor on non-paj-ment of rent or non- performance of covenants, or seizure or forfeiture of the said term for any of the causes aforesaid ; the said lessor covenant with the said lessee for quiet enjoyment. In Witness Whereof, The said parties to these presents have hereunto set their hands and seals. Signed, Sealed, and Delivered in the Presence of (239.) Lease of Land in use Generally. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between (name, residence, and occupation of the lessor) of the one part, and {name, residence, and occupation of the lessee) of the other part, Witnesseth, That for and in consideration of the rents, covenants, agree- ments, and provisos hereinafter reserved and contained, and which by and on the part and behalf of the said executors, administrators, and assigns, are to be paid, kept, done, and performed, he the said ha granted, demised, leased, set, and to farm letten, and by these presents do grant, demise, lease, set, and to farm let, unto the said exec- utors, administrators, and assigns, all that tract, piece, or parcel of land situate, lying, and being on lot or township number in the County of and the Province of bounded and described as follows ; that is to say {here describe the premises leased) containing, by estimation, acres, be the same a little more or less, together with all buildings, woods, underwoods, ways, waters, watercourses, profits, com- modities, privileges, advantages, and appurtenances whatsoever to the said premises belonging, or in anywise appertaining. To Have and to Hold the said tract, piece, or parcel of land, and prem- FORMS OF LEASES, ETC. gej ises hereby demised, with their appurtenances, unto the said executors, administrators, and assigns, from the day of for and during and until the full end and term of years from thence next ensuing, and fully to be complete and ended ; subject, neverthe- less, to the quit-rents to become due, exceptions, reservations, covenants, easements, and conditions in the original grant or letters-patent of the said reserved and contained. Yielding and paying therefor yearly, and in every year during the said term hereby granted, unto the said heirs or assigns, the clear yearly rent or sum of without making any deduction or abatement whatever for or in respect of any present or future quit-rents, land taxes, or other parliamentary, legislative, colonial, or parochial taxes, assessments, payments, or impositions whatsoever, by yearly payments ; that is to say, on the day of in every year, the first payment to become due and be paid on day of . And the said do for heirs, exec- utors, and administrators, covenant, promise, and agree to and with the said heirs and assigns, in manner following ; that is to say, that the said executors, administrators, and assigns, shall and will, from time to time, and at all times during the continuance of the term hereby granted, well and truly pay, or cause to be paid, unto the said heirs and as.signs, the said yearly rent hereby reserved, upon the days and times, and in the manner hereinbefore mentioned for the payment of the same, according to the true intent and meaning of these presents. And also, the said executors, administrators, and assigns, shall and will pay, satisfy, and discharge, or cause to be paid, satisfied, and dis- charged, all and all manner of quit-rents, land taxes, and other parliamen- tary, legislative, or parochial taxes, rates, assessments, payments, or impo- sitions whatsoever, now or at any time hereafter during the said term hereby demised, payable, or to become payable, for or in respect of the said prem- ises, or any part of them, or the said yearly rent or any part thereof. Provided always, nevertheless, and these presents are upon this express condition, that if the said yearly rent hereinbefore reserved, or any part thereof, shall be in arrear for the space of after the same ought to have been paid as aforesaid (although no legal or formal demand shall have been made for the same), that then, and in every such case, and at all times hereafter, it shall and may be lawful to and for the said heirs and assigns, either to sue or distrain for the sarne, or into or upon the said demised premises, or into any part thereof, in the name of the whole, wholly to re-enter, and the same to have again, retain, repossess, and enjoy, as in former state ; and the said and other occupiers and possessors thereof, thereout and from thence utterly to expel, put out, and remove, anything hereinbefore contained to the contrary thereof in any- wise notwithstanding. And the said for heirs and assigns, do hereby covenant, promise, and agree to and .with the said executors, administrators, and assigns, that paying the said yearly rent 652 MORTGAGES OF PERSONAL PROPERTY. hereby reserved, and performing the covenants and agreements hereinbefore mentioned and contained, and which on part and behaif are or ought to be paid, done, and performed (.subject, nevertheless, as aforesaid), shall and may peaceably and quietly have, hold, use, occupy, possess, and enjoy the said hereby demised premises, with the appurtenances, f ,r all the term hereby granted, without the lawful let, suit, trouble, denial, eviction, ejection, interruption, or disturbance whatsoever, of, from, or by the said heirs or assigns, or of, from, or by any o'.her person or persons lawfully claiming or to claim the said hereby demised premises, or any part or parcel thereof. In "Witness "WTiereof, I, the %2.\\ {name of lesso?-), have hereunto sub- scribed my name and affixed my seal, at on the day of in the year of our Lord {Xante of grantor.) (Seal.) Executed and Delivered in the Presence of CHAPTER XXXII. MORTGAGES OF GOODS AND CHATTELS, OR PERSONAL PROPERTY. Mortgages are now often made of personal property. Any instrument will answer the purpose, which would suffice as a bill of sale of the property, and which contains, in addition to the words of sale and transfer, a clause providing for the avoid- ance of it when the debt is paid. I append to this chapter forms for this purpose. When the mortgagor of personal property retained possession, it was formerly doubtful what security the mortgagee had. Now, however, it is generally provided by statute, that the mortgagor may retain possession, if the mortgage be recorded. These instruments should always be recorded according to the provisions of the statute of the State in which they are made ; although the general rule would apply to them, that they would operate without record as to all parties having notice or knowledge of them. The statutes respecting mortgages of personal property ahva)'s provide for an equity of redemption, which is usually very much shorter than that of land. A frequent period is sixty days. The requirements of the statute in respect to notice, foreclosure, etc., must be strictly followed. MORTGAGE OR PLEDGE OF PERSONAL PROPERTY. 653 It used to be thought that a personal mortgage might be made to cover property subsequently acquired by the mortgagor. Thus, a dealer in dry goods would mortgage all his stock to secure some creditor, and provide in the mortgage that it should operate upon all his goods and merchandise subsequently acquired by him. But it has been held that such a clause has no effect ; because no man can m.ake a mortgage of property which he does not own at the time. We give annexed to this chapter the laws of all the States relating to mortgages of personal property. THE PLEDGE OF PERSONAL PROPERTY. A PLEDGEE is bound to take ordinary (not extreme) care of the thing pledged; and, if it be lost or injured for want of such care, he is answerable. He cannot use it, except at his own peril; that is, he is liable for any injury caused by using it, even if it was not his fault. If the thing— as a horse — needs use for its own safety, then the pledgee may use it for this pur- pose, and is liable only for an injury caused by his negligence. He must account with the pledgor for the income, increase, or profits. One difference between a mortgagee and a pledgee is this : A mortgagee need not take possession, for the mortgagor may retain it, and now this is provided for, as we have seen, by recording the mortgage. But if a thing is given in pledge, the pledgee must have and keep possession of it. The most important difference is this. A mortgagee may sell and transfer his mortgage, and his transferee may transfer it again, and so on ; and when the debt is paid, the mortgagor reclaims it from whomsoever has it then. But if a pledgee sells the pledge before the debt is due, it is held that he is at once answerable to the pledgor for its full value, although the debt be not paid. Some cases of this kind have been carried very far in New York. It is held there, — and on grounds which may perhaps suffice to make it law everywhere, — that if A lends money to B, and takes stocks in pledge, A cannot sell these stocks and keep the proceeds, and replace the stock and return it when 654 MORTGAGES OF PERSONAL PROPERTY. the debt is paid. He can do nothing but keep the stock ; and if he sells it, the pledgor may recover at once its full value, and the pledgee will have no security for his debt. In such a case, a pledgee, being sued, offered the testimony of brokers and others to prove a uniform and established usage in the city of New York thus to sell or use pledged stock until the debt was paid ; but the court said the usage was illegal, and refused to receive the evidence. It is certain that after the debt is due and payable, and after demand if it be payable on demand, the pledgee may have a decree in chancery for a sale of the pledge, or may sell it himself :/r(77'z^i?^ he first gives a reasonable notice to the pledgor, and then sells it, after a reasonable delay, in a proper manner, by a public sale at auction ; and uses all reasonable precautions to get its value, as by advertisement, etc. ; and does not buy it himself, directly or indirectly ; and conducts himself in all respects honestly ; and then he must account for the proceeds. Sometimes the parties agree, when the pledge is given, or afterwards, how the pledge shall be treated, or how sold if not redeemed, etc. ; and such agreements, if fair and reasonable, would undoubtedly be binding on both parties. It is agreed that negotiable paper is excepted from the common rule ; and the pledgee of that may sell or discount it before the debt is due ; and must account for it, or its proceeds, if the debt is paid and the paper redeemed, or for the balance if he applies it to payment of the debt. A loan of stock is not like a pledge of stock, because it authorizes the borrower to sell or pledge it, or use it in any way, at any time ; but he must replace and return the same quantity of the same stock, when it is called for. If he could not thus make use of the stock, the loan of it would be of no benefit whatever to the borrower. But he cannot thus use stock pledged to him, unless by a special agreement which permits this use. A pledgee, who receives a pledge to secure one or more specific debts, cannot retain it to secure other and further debts of the pledgor, unless with his consent. This consent may be express, or implied from words or circumstances which show that such was the understanding of the parties. FORMS OF MORTGAGES OF PERSONAL PROPERTY. 655 (240.) A Mortgage of Personal Property. Know all Hen by these Presents, That I {name of mortgagor) of tlia town o£ County of and State of for and in consideration of dollars, to me in hand paid by [nami of mortgagee) of the town of County of and State aforesaid, do sell and convey to the said {na?ne of mortgagee) tlie following goods and chattels, to wit {list or schedule of the articles, specifying them ■with sufficient distinctfiess to make it certain what they are) warranted free of incumbrance, and against any adverse claims : Upon condition, that if the said {name of the mortgagor) pay to the said {name of the mortgagee) dollars and interest, in year , agreeably to a promissory note of this date, for that sum, payable to the said {name of mortgagee) or order, on demand, with interest, this deed shall be void, otherwise in full force and effect. Tlie aforesaid Parties Agree, That, until the condition of this instru- ment is broken, the said property may remain in possession of the said {naine of mortgagor), but after condition broI ss. County. ) This mortgage was acknowledged before me, by (fhe mort- gagor), this day of A.D. 18 (243.) Mortgage of Personal Property, with Power of Sale- another Form. Kno-w all Men by these Presents, That I {najiie and residotce of mort- gagor') in consideration of the sum of to me paid by (name and residence of mortgagee) the receipt ^^■hereof is hereby acknowledged, have granted, bargained, and sold, and by these presents do grant, bargain, and sell unto the said {name of mortgagee) the following named and described articles of personal property ; that is to say {here follows the list or schedule and description of the articles mortgaged, as in Form 240). To Have and to Hold, All and singular, the said goods and chattels, unto the said {name of mortgagee) and his executors, administrators, and assigns, to his and their sole use forever. And I, the said mortgagor, for myself and my executors and administrators, do covenant to and with the said mortgagee and his executors, administrators, and assigns, that I am lawfully possessed of the said goods and chattels, as of my own property : that the same are free from all incumbrances ; and that I will, and my exec- utors and administrators shall, warrant and defend the same to the said mortgagee and his executors, administrators, and assigns, against the lawful claims and demands of all persons. Provided KTevertheless, That if the said mortgagor, or his executors or administrators, shall well and truly pay unto the said mortgagee, or his exec- utors, administrators, or assigns, the sum of then this deed, as also a certain promissory note bearing even date herewith, signed by the said mortgagor, whereby he promises to pay the said mortgagee the said sum and interest at the time aforesaid, shall both be void, and otherwise they shall remain in full force and virtue. And Provided Also, That until default by the said mortgagor or his executors and administrators, in the performance of the condition aforesaid, or of some part thereof, it shall and may be lawful for him or them to keep ABSTRACT OF CHATTEL MORTGAGES. 659 possession of the said granted property, and to use and enjoy the same ; but in case of such default, or if the same or any part thereof shall be attached at any time before payment as aforesaid, by any other creditor or creditors of the said mortgagor, or if the said mortgagor, his executors or administra- tors, shall attempt to sell the same or any part thereof without notice to the said mortgagee or his executors, administrators, or assigns, and without his or their assent to such sale in writing expressed ; or sha'd remove the same, or any part thereof, from the place where they now are, without such notice and assent, then it shall be lawful for the said mortgagee, his executors, administrators, or assigns, to take immediate possession of the whole of said granted property to his or their own use, and to sell and dispose of the whole, or of so much of said granted property at public auction, as shall produce a sum of money sufficient to pay and discharge the above-mentioned debt or liability, with interest, and all costs and charges of keeping and selling the same, and all just and equitable liens then existing thereon, without further notice or demand, except giving day's notice of the time and place of said sale to said mortgagor or his legal representatives ; and after the said debt or liability, with interest, costs, charges, and liens, shall be so discharged and satisfied, the surplus of the money arising from said sale and the resi- due of said granted property, shall be paid and restored to said mortgagor or his legal representatives, discharged from all claim under this mortgage. In Testimony Whereof, I the said [iiame of jiiortgagof) have hereunto set my hand and seal this day of in the year of our Lord one thousand eight hundred and {Signature.) {Seal.) Executed and Delivered in Presence of ABSTRACT OF THE LAWS OF THE STATES, CON- CERNING CHATTEL MORTGAGES. ALABAMA.— Personal property may be mortgaged, but, to be good against creditors and purchasers without notice, it must be recorded in the county where the grantor lives, and also in the county where the property is at the time of conveyance. Mortgages of personal property usually contain powers of sale, and are foreclosed according to the provisions of the mortgage. 660 MORTGAGES OF PERSONAL PROPERTY. ABKAlffSAS.— Chattel mortgages must be acknowledged before some person authorized by law to take acknowledgments, and recorded in the county where the mortgagor resides ; and are liens on the property mort- gaged only from such time. After condition broken, suit may be brought on the mortgage, and judgment rendered for the sale of the property and the recovery of the debt against the defendant personally; and the sale shall be on three months credit, the purchaser to execute a bond with good surety. CALIFORNIA.— The following property may be mortgaged : I. Loco- motives and rolling stock of a railroad company. 2. Steamboat machinery, and machinery used by machinists, foundrymen, and mechanics. 3. Steam- engines and boilers. 4. Mining machinery. 5. Printing presses and mate- rials. 6. Professional libraries. 7. Instruments of surgeons, physicians, and dentists. 8. Upholstery and furniture used in hotels and boarding- houses, for the purchase-money of the articles mortgaged. 9. Growing crops. 10. Vessels of more than five tons burden. The mortgage is void against creditors, unless accompanied by an affidavit of all the parties that it is made in good faith, and without any design to defraud creditors, and unless it is acknowledged and recorded in the same manner as a deed of real property, in the office of the Recorder for the county where the mort- gagor resides, and also where the property is situated. Chattel mortgages may be foreclosed as in the case of pledges, after demand ; the mortgagee must give notice of the time and place of sale, which must be by public auction, and after deducting the amount due on the mortgage, he must return the balance to the mortgagor. Or he may foreclose by action, and the court, by its judgment, may direct a sale of the property or of so much as may be necessary, and the application of the proceeds of the sale to the payment of the amount due, and all costs and expenses ; and any surplus is to be returned to the court ; and the mortgagee may be authorized to purchase at the sale. COLOK.ADO. — The property must be deUvered to the mortgagee, or the mortgage acknowledged before" an officer in the precinct where the parties reside, or where the property is, and recorded in the county where the prop- erty or a greater part is, and it is then valid for two years. When chattel mortgages are in the form of trust deeds, they contain a power of sale by the Trustee at public auction, on giving certain days notice. Otherwise there is no statute provision in regard to foreclosure. CONNECTICUT.— Where the property is retained by the mortgagor, the mortgage, to be vaHd, must be executed, acknowledged, and recorded in like manner as a deed of real property. The mortgage must be foreclosed by a suit in equity, and the court may order the same or any part thereof to be sold, and the excess is to be paid to the mortgagor. DEIjA"WAIIE.— Chattel mortgages must be acknowledged and recorded within ten days, and the lien continues for three years. Mortgages are ABSTRACT OF CHATTEL MORTGAGES. 66o* foreclosed by intervention of court, and tliere is no redemption of the prop- erty sold. FIiOl^IDA. — Unless the property mortgaged is delivered to the mort- gagee, the deed must be executed in the same manner as deeds of real property (see Deeds, etc.), and recorded in the office of records for the county where the property is at the time of the execution of the mortgage. The mortgage is foreclosed by petition to the Circuit Court for the county where the property is, two months before the term of the court, at which judgment may be rendered. When the property remains with the mort- gagor, the mortgagee may, by malting an affidavit of the amount due, have a writ of attachment, the ofiicer to hold the property until the decree of fore- closure is entered. GEORGIA. — The mortgage must clearly indicate the creation of the lien, specify the debt and the property to be secured. It must be executed in presence of, and attested or proved by or before, a Notary Public, or a Judge or Clerk of Court, and recorded within three months in the county where the mortgagor resides, or if a non-resident, in the county where tlie property is ; but record at any time is due notice. In order to foreclose, the mortgagee must go before a proper officer (any Notary, Justice of the Peace, or Commissioner for Georgia, if he be a non-resident), and make an affidavit of the amount due, which affidavit shall be affixed to the mortgage, and the mortgage filed in the office of the Cleric of the Superior Court for the county where the mortgagor resides ; and the clerk shall there issue an execution directing the sale of the property. The Sheriff shall levy on the properly, and after advertising weekly for eight weeks may sell the same. ILLINOIS. — Mortgages of personal property are not valid unless the property is delivered to the mortgagee, or unless the instrument is acknowl- edged before a justice of the peace in the district where the mortgagor resides, and recorded in the county where he resides, or if he is a non-resi- dent, in the county where the property is. Chattel mortgages usually con- tain a power of sale by the sheriff of the county where the property is, in which case the sheriff may execute the power by giving legal notice of thirty days, and selling the same as therein directed, and he may execute all proper conveyances ; and the mortgagee is authorized to purchase at such sale. lUDIAUA. — If the goods are not delivered, the mortgage must be acknowledged in the same manner as deeds of real property, and recorded in the county where the mortgagor lives. The mortgage is deemed of record from the time it is left with the recording officer. There is no strict fore- closure. The mortgagee is entitled to possession of the property on breach of the condition, and may bring an action to recover the same. IOWA. — The mortgage is not valid unless it is in writing, signed, acknowledged, and recorded in the county where the holder of the property resides. Chattel mortgages for the payment of money only, and where the 66 1 ABSTRACT OF PERSONAL PROPERTY. time of payment is fixed, may be foreclosed by notice and sale. The notice must contain a full description of the property, and the time and place of sale, with the terms of the same; such notice to be served on the mort- gagor, and afterwards published in the same manner as in case of sale of property on execution, and the purchaser takes all the title and interest in the mortgaged property. KANSAS.— Unless the property be delivered to the mortgagee, the mortgage, or a copy of it, must be deposited in the office of the Register of Deeds for the county where the mortgagor resides, or where the property is if he is a non-resident, and an affidavit must be filed each year by the mort- gagee, stating that his interest is a continuing one. The mortgage need not be acknowledged. After condition broken, the mortgagee or his as- signee may proceed to sell the mortgaged property, or so much thereof as is necessary to satisfy the mortgage, having first given notice of the time and place of the sale by written or printed handbills posted in at least four different places in the township or city in which the property is to be sold, at least ten days before the sale. KSUTXJCKY. — Chattel mortgages must be acknowledged and recorded in the office of the clerk of the court for the county where the property is. They may be foreclosed by bill in equity, the mortgagee taking possession ; and the mortgagor has five years to redeem^ liOXJISIAN'A. — Chattel mortgages are unknown. MAINE. — Mortgages of personal property for more than thirty dollars are not valid unless the property is delivered, or the mortgage is recorded by the clerk of the town where the mortgagor resides, or, if he is a non-resi- dent, in the town where the property is when the mortgage is made. After condition broken, the mortgagee or his assignee may give the mortgagor written notice of his intention to foreclose, by leaving a copy thereof with the mortgagor, or by publishing a copy once a week for three successive weeks, in one of the principal papers of the town where the mortgage is recorded. The notice, with an affidavit of service, or copy of the publica- tion, must be recorded where the mortgage is recorded; and all right of redemption is forfeited within sixty days after such notice is recorded. MARTLAKTD. — Mortgages and bills of sale must contain the names of the parties, the consideration, and a description of the property mortgaged ; they must be signed, sealed, and dated, and acknowledged and recorded in the county or city where the vendor resides, within twenty days after the date of the mortgage. The mortgage may be foreclosed in accordance with the terms therein expressed. The mortgagee shall first execute a bond to the State to abide by and fulfil any decree made by any Court of Equity in regard to the property. He must give notice in accordance with the terms of the mortgage, or if none are expressed in the mortgage, then twenty days notice of the time and place and terms thereof, by advertisement in a paper printed in the County where the property is. The sale shall be reported to the Court and confirmed by it. ABSTRACT OF CHATTEL MORTGAGES. 66l* MASSACHUSETTS.— Chattel mortgages must be recorded within fif- teen days after execution, on the records of the city or town where the mort- gagor resides, and also in the city or town in which he principally transacts his business. If a non-resident, the mortgage may be recorded in the city or town where the property is. The mortgagee or his assigns, after condi- tion broken, may give to the mortgagor written notice of his intention to foreclose the same, which notice shall be served by leaving a copy with the mortgagor, or by publishing it at least once a week for three successive weeks, in one of the principal newspapers published in the town or city where the mortgage is properly recorded. The notice with an affidavit of service shall be recorded wherever the mortgage is recorded, and the prop- ■erty may be sold in accordance with the terms of the instrument. The mortgagor may redeem, at any time within sixty days after the recording of the notice. MICHIGAlir. — If not accompanied by delivery of the property mort- gaged, the mortgage, or a copy thereof, must be recorded in the office of the clerk of the city or town where the mortgagor resides, or, if he is a non-resident, where the property is ; and before the expiration of each year, the rnortgagee must file an affidavit setting forth his interest in the property. There are no statute provisions in regard to foreclosure. Each mortgage should contain provisions as to its own foreclosure ; and such provisions will be carried into effect. MINNESOTA. — The mortgage must be made in good faith, and without intent to defraud creditors ; it must be acknowledged, and it, or a copy, filed in the city or town where the property is and also where the mortgagor re- sides. The mortgagee or his assigns, after condition broken, may give written notice of his intention to foreclose, which may be served personally, or by publication once a week for three successive weeks in a newspaper printed and published in the county where the mortgage is recorded. The notice with affidavit of service shall be filed when the mortgage is filed, and foreclosure is complete, if no redemption is made within sixty days. But the mortgage may always be foreclosed and the property sold in accordance with the special terms therein stated. MISSISSIPPI. — Mortgages of personal property must be recorded in the office of the clerk of the Court of Chancery for the county where the property is, and are notice to third parties from the date cf record. In order to be recorded, they must be acknowledged. The mortgage should contain provisions as to foreclosure, sale, etc., and may be foreclosed in accordance with the terms expressed in the same. MISSOUBI.— Unless the property is delivered, the mortgage must be acknowledged or proved, and recorded in the county where the mortgagor resides. Mortgages with power of sale may be foreclosed in accordance with such power, and such sale bars the right of redemption. All mortgages in which the debt, exclusive of interest, does not exceed one hundred dol- 662 MORTGAGES OF PERSONAL PROPERTY. lars, may be foreclosed by sale of the property by the mortgagee, he first giving sixty days notice after default that the property will be sold, and thirty days notice of the time and place of sale. All other mortgages may be fore- closed by petition to the Circuit Court, and the court may give judgment and decree a sale of the incumbered property. KEEHASSA. — The property must be delivered, or else the mortgage, or a copy, filed in the office of the county clerk, and each year within thirty days before the expiration thereof the mortgagee must file in the same ofifice a copy of the mortgage, and a statement showing his interest in the same. A mortgage with power of sale may be foreclosed after condition broken by giving notice of the time and place of the sale, at least twenty days before such sale. The notice shall specify the mortgage, parties, the amount due, and description of the property, and shall be published in some newspaper in the county where the property is, or, if no newspaper is published in said county, then by posting up notice in at least five public places in the county. The sale shall be by pubhc auction. NEVADA. — Chattel mortgages are allowed, but the property must be delivered to the mortgagee. The mortgage is foreclosed by auction, with judgment for the amount due, and a decree of sale of the property and appli- cation of the proceeds to the payment of the debt. NEW HAMPSHIRE.— Possession must be delivered to and retained by the mortgagee, or the mortgage recorded with the clerk of the town where the mortgagor resides ; and both parties must make afl5davit that the mort- gage is made in good faith, and to secure an existing debt. The mortgagee at any time after thirty days from the time the condition is broken, may sell the mortgaged property at auction, notice of the time, place, and purposes of the sale, being posted at two or more public places in the town in which the sale is to be, at least four days prior thereto. The mortgagee shall notify the mortgagor at least four days prior to the sale. He may purchase at such sale ; and the mortgagor may redeem at any time before the sale. NEW JEESEY. — Unless accompanied by delivery of the property, the mortgage, or a copy thereof, must be filed in the clerk's office for the county where the mortgagor resides, or, if he is a non-resident, in the county where the property is. If there is a Registry of Deeds in the county, the mortgage must be filed in such Registry; and every year, within thirty days next pre- ceding its expiration, the mortgagee must file, in the same office, a true copy of the mortgage and a statement showing his interest in the property. The foreclosure is by suit in equity; and there is no redemption. NEW YORK!. — The mortgage, or a true copy, must be filed in the office of the county clerk, registrar, or town clerk, as the case may be, where the mortgagor resides, or, if a non-resident, where the property is ; and every year, within tliirty days before the expiration of the same, the mortgagee must file a copy of the mortgage, and an affidavit showing his interest in the property. The mortgage need not be under seal. The mortgagee may take ABSTRACT OF CHATTEL MORTGAGES. 662* possession of the property after condition is broken, and sell tlie same either at private sale or by public auction. Any sale fairly made will be upheld by the court. It is customary to give three days public notice, if the sale is by auction, and the mortgagor may redeem at any time before sale, but not after. If the mortgage contain terms or provisions as to foreclosure, sale, etc., the foreclosure will be governed by them. NORTH CABOLIN A.— Mortgages are not valid unless recorded in the county where the mortgagor resides, or if he is a non-resident, in the county where the property is. On breach of condition the mortgagee may proceed to sell at auction, first giving twenty days notice in three public places ; and he must return any surplus money to the mortgagor. OHIO. — If the property is not delivered, the mortgage is absolutely void, unless it is filed in the ofiice of the clerk of the township where the mort- gagor resides, or where the property is if he is a non-resident j and the mort- gagee must file a statement of his claim in dollars and cents, and that it is unpaid ; and a copy of the mortgage and affidavit must be filed each year. There are no provisions in regard to foreclosure of chattel mortgages as dis- tinguished from other mortgages. Any provisions or terms in the mortgage would be carried into effect. The mortgagee is entitled to possession any use of the property. OBEGON. — The mortgage, or a copy thereof, must be recorded in the ofiice of the county clerk, and every year, within thirty days before the expi- ration of the same, a copy must be filed, and a statement of the mortgagee's interest. After condition broken the mortgagee is entitled to possession, and he may recover the same by suit, on making an affidavit of all the facts and the value of the property ; and the sheriff will hold the property to await the disposition of the suit. The mortgage may provide how it shall be fore- closed, in which case that method and no other, shall be followed. PENNSYIiVANIA.— With the following exceptions, personal property mortgaged must be delivered to the mortgagee. The exceptions referred to are : Leases of collieries, factories, and other premises, saw-logs, sawed lumber, lath, pickets, shingles, hewn timber, spars, and petroleum, or coal-oil, crude and refined, in tanks, reservoirs, barrels, and other receptacles, in bulk ; iron tanks and tank-cars ; iron ore mined and prepared for use, pig- iron, blooms, rolled or hammered iron, in sheets or bars ; manufactured slate, and canal boats; The mortgage must be for not less than five hundred dol- lars, in writing, signed by the grantor, and acknowledged and recorded in the county where the mortgagor resides, or where the property is if he is a non- resident ; and every year, within thirty days before the expiration thereof, the mortgagee must file a statement specifying the amount due. After the money is due the mortgagee may, after thirty days notice to the mortgagor, either personally or by public advertisement, inserted four times at intervals of one week, in some daily newspaper, if any, or if not, in a weekly paper published in the county where the mortgage is recorded, proceed to sell the 663 MORTGAGES OF PERSONAL PROPERTY. property at public auction. The mortgagor may red-eem at any time before the sale. EHODlj; ISLAND.— Unless the property is dehvered to and retained by the mortgagee, the mortgage must be recorded in the office of the clerk of the town where the mortgagor resides, or where the property is if he be a non-resident. The mortgagee may take possession after condition broken. If there are any provisions in the instrument, the property may be sold in accordance therewith. Redemption at law may be had at any time within sixty days after breach, unless the property has been sold as above. The equity may be foreclosed by bill, and the Court of Chancery will decide as in any suit in equity. SOUTH CAE-OLIUA.— The mortgage must be recorded, within sixty days, in the office of the Register of Mesne Conveyances in the county where the mortgagor resides, or, if he be a non-resident, where the property is. The mortgagee may take possession of the property after breach of con- dition, and sell the same. The equity of redemption is lost unless the prop- erty is redeemed within two years after breach. TENNESSEE. — Mortgages must be proved and registered in the county where the mortgagor resides. If the mortgage contains a power of sale, it may be foreclosed in accordance therewith; if not, it is foreclosed by bill in equity and decree therein. TEXAS. — The mortgage must be recorded in the office of the clerk of the court for the county where the properly shall remain. The mortgage is fore- closed by suit. The mortgagee must make affidavit of the am.ount due, which is annexed to the mortgage ; and thereupon execution is issued. The sheriff may then levy and sell, after giving sixty days notice in some public gazette. There is no redemption after the sale. VERMONT. — Machinery attached and used in any shop, mill, printing office, or factory, may be mortgaged by deed executed, acknowledged, and recorded in the same manner as deeds of real estate (see Deed?, etc.); other personal property must be delivered to the mortgagee. The mortgage may be foreclosed by bill in equity, or by petition to the Court of Chancery, on which after hearing the court may order that the equity be foreclosed, unless the mortgagor pay the debt and all costs within a certain time, not more than one year. A copy of the record or decree of foreclosure must be filed in the town clerk's office where the property is, within thirty days after the time for redemption has expired. VIRGINIA. — Chattel mortgages are executed, acknowledged, and recorded in the same manner as deeds of real estate (see Deeds). A scroll answers for a seal. Chattel mortgages are usually given as deeds of trust, in which case they may be foreclosed by the trustee according to the terms of the mortgage, without the intervention of the courts. "WEST VIRGINIA. — Chattel mortgages require the same formalities as deeds of real estate ; must be executed under seal or scroll, acknowledged, WHO /S ENTITLED TO A PA TENT. 663* or else proved by two-witnesses, and recorded in the county where the prop- erty is. Chattel mortgages are seldom used, but are foreclosed in Court of Equity after decree. Deeds of trust usually take their place, and after default the trustee may sell the property, after due notice, without recourse to the courts. ■WISCONSIIX. — The mortgage, or a copy, is to be filed in the office of the clerk of the town, city, or village where the mortgagor resides, or, if he is a non-resident, where the property is ; and every two years, within thirty days before the expiration thereof, the mortgagee must file an affidavit showing his interest in the mortgaged property. After condition broken the property becomes the property of the mortgagee, and he may reduce it to possession. He may sell the same, and any surplus over the debt and costs must be returned to the mortgagor. CHAPTER XXXIII. THE LAW OF PATENTS. WHAT MAY BE PATENTED. Any new and useful art, machine, manufacture, or composi- tion of matter, or any new and useful improvement thereof not before known or used by others in this country, and not at the time patented or described in any printed publication in this or any foreign country. And any new and original design for a manufacture, bust, statue, alto-relievo, or bass-relief, or any new and original im- pression, ornament, pattern, print, or picture to be placed on or worked into any article of manufacture ; or any new and original shape or configuration of any siich article, the same not having been known or used by others before the application for a patent. .WHO IS ENTITLED TO A PATENT. Any person, whether citizen or alien, may obtain a patent for any invention or improvement made by him, and not before known. In case of the death of the inventor, the patent may be applied for by, and will issue to, his legal representatives. 664 ^-^^ ^^ "' ^^ ^^ TENTS. Joint inventors are entitled to a joint patent; but neither can claim one separately. WHAT WILL PREVENT THE GRANTING OF A PATENT. Although an applicant may have actually made an invention, a patent therefor will not be granted him if the whole or any part of what he claims as new has been patented, or described in any printed publication in this or any foreign country, or been before in\'ented or discovered in this country, nor if he has once abandoned his invention to the public, nor if it has been for more than two years in public use or on sale ; but the mere fact of prior use, invention, or discovery abroad, will not prevent the issue of the patent, unless the invention has been there patented, or described in some printed publication. Merely conceiving the idea of an improvement or machine is not such an "invention" or "discovery" as is above contem- plated. The invention must have been reduced to a practical form, either by the construction of the machine itself or of a model thereof, or at least by making a full drawing of it, or in some other manner equally descriptive of its exact character, so that a mechanic would be enabled, from the description given, to construct a model thereof, before it will prevent a subsequent inventor from obtaining a patent. Mode of Proceeding to Obtain a Patent. APPLICATION. All applications must be completed for examination within two years after the filing of the. petition ; and in default, all such will be regarded as abandoned, unless it be satisfactorily proved to the office that such delay was unavoidable. The application must be made by the actual inventor, if alive, even if the patent is to issue to an assignee ; but, where the inventor is dead, the application and oath may be made by the executor or ad- ministrator. The application must be in writing, in the English language, signed by the applicant, and addressed to the Com- missioner of Patents, Washington, D. C. The following is a suitable form, v/hich may serve as a useful guide, but must be varied according to circumstances : FORM OF SPECIFICA TION. 665 (244.) Form of Petition. To THE Commissioner of Patents : Your petitioner prays that a patent may be granted to him for the inven- tion set fortli in tlie annexed specification. {Signature^ SPECIFICATION. The applicant must set forth in his specification the precise invention for which he claims a patent. In all applications for mere improvements, the specification must distinguish between what is admitted to be old and what is described and claimed to be the improvement, so that the office and the public may understand exactly for what the patent is granted. Two or more distinct and separate inventions may not be claimed in one application ; but where several inventions have a necessary and dependent connection with each other, so that all cooperate in attaining the end which is sought, they may be so claimed. If more than one invention is claimed in a single application, and they are found to be such that a single patent may not be issued to cover the whole, the inventor must divide the. application into separate applications, or confine the claim to whichever invention he may elect. The specification must be signed by the inventor (or by his executor or administrator, if the inventor be dead). It should describe the sections of the drawings (where there are draw- ings), and refer by letters and figures to the different parts. The following may be taken as a specimen of the proper form of a specification to accompany the petition : (245.) Form of a Specification to Accompany the Petition. To ALL WHOM IT MAY CONCERN : Be it known that I, of in the County of in the State of have invented a new and improved mode of preventincf steam boilers from bursting ; and I do hereby declare that the following is a full and exact description thereof, reference being had to the accompanying drawings, and to the letters of reference marked thereon. 666 THE LA W OF PA TENTS. The nature of my invention consists in providing the upper part of a steam boiler with an aperture in addition to that for the safety-val-.e, \Ahich aperture is to be closed by a plug or disk of alloy, which will fuse at any given degree of heat, and permit the steam to escape, should the safety-valve fail to perform its functions. To enable others skilled ia the art to make and use my invention, I will proceed to describe its construction and operation. I construct my steam boiler in any of the known forms, and apply thereto gauge-cocks, a safety- valve, and the other appendages of such boilers ; but, in order to obviate the danger arising from the adhesion of the safety-valve, and from other causes, I make a second opening in the top of the boiler, similar to that made for the safety-valve, as shown at A, in the accompanying drawing ; and in this opening I insert a plug or disk of fusible alloy, securing it in its place by a metal ring and screws, or otherwise. In general, I compose this fusible metal of a mixture of lead, tin, and bisinuth, in such proportions as will insure its melting at a given temperature, which must be that to which it is intended to limit the steam ; it will, of course, vary with the pressure the boiler is intended to sustain. I surround the opening containing the fusible alloy by a tube, B, intended to conduct off any steam which may be discharged therefrom. When the temperature of the steam in such a boiler rises to its assigned liinit the fusi- ble alloy will melt and allow the steam to escape freely, thereby securing it from all danger of explosion. What I claim as my invention, and desire to secure by letters-patent, is the application to steam boilers of a fusible alloy which will melt at a given temperature and allow the steam to escape, as herein described, using for that purpose the aforesaid metallic compound, or any other substantially the same, and which will produce the intended effect. {Signature>i ( Witnesses^ When the application is for a machine, the specification should begin thus : Be it known that I, {name of inventor') in the County of and State of having invented a new and useful machine for [stating the use and title of the machine ; and if the application is for an improve- ment, it should read thus : a new and useful improvement on a or on the machine, etc.] and I do hereby declare that the following is a full, clear, and exact description of the construction and operation of the same, reference being had to the annexed drawings, making apart of this specification, in which Figure i is a perspective view ; Figure 2 a longitudinal elevation ; Figttre 3 a transverse section, etc., (thus describing all the sections of the drawings, and then referring to the parts by letters. Then follows the de- scription of the construction and operation of the machine, and lastly the claim, which should express the nature and character of the invention, and DRA WIjYGS. 667 identify tne pr.rts claimed separate!}' or in combination. If tiie specification is for an improvement, tlie original invention should be disclaimed, and the claim confined to the improvement). The specification must be signed by the inventor, and at tested by two witnesses. The applicant must make oath or affirmation, to be substan tially as follows : (246.) Form of Oath. City (or Town) of Couxtv of ) [-SS. State of ) On this day of 18 , before me, the subscriber, a personally appeared the within named and made solemn oath (or affirmation) that he verily believes himself to be the original and first inventor of the mode herein described for preventing steam boilers from bursting, and that he does not know or believe the £a.ir,e was ever be- fore known or used ; and that he is a citizen of the United States [or citizen of other country, as the case may be]. [Signatiire) Justice of the Peace. Citizens of the British Provinces should state specifically the provinces of which they are citizens, and not merely that they are subjects of the crown of Great Britain. The oath may be taken before any person authorized by law to administer oaths. The oath may be taken in a foreign country before any min- ister plenipotentiary, chargd -d'affaires, consul, or commercial agent, holding commission under the government of the United States, or before any notary public of the country in which the oath is taken, being attested in all cases by the proper official seal of such notary. Applicants for patents, upon paying the final fee, should notify the office how many copies of the specifi- cations they desire to have furnished them. DRAWINGS. The applicant for a patent is required by law to furnish a drawing or drawings, where the nature of the case admits of them. They should be neatly and artistically executed, in fast colors, generally in perspective, and with such detached sec- tional and plain views as to clearly show what the invention is, C6S THE LA W OF PA TEiVTS. its construction and operation. Each part must be distinguished by the same number or letter wherever it appears in the several drawings. The name of the invention should be written at the top, the shortest side being considered as such. Each sheet should be fifteen inches from top to bottom, and ten inches across, that being the size of the patent, or it may be twenty inches across, so as to be folded. One of the drawings should be on thick drawing-paper, sufficiently stiff to support itself in the portfolios of the office, for which it is intended. Tracings upon cloth pasted on thick paper are not allowed. This must be signed by the applicant, and attested by two witnesses, and must be sent with the specification. The other duplicate need not be forwarded until the patent is ordered to issue, to which it is to be attached. It must have, for that purpose, a mar- gin of one inch on the right hand, and should be on tracing- muslin, vi'hich will bear folding and transportation, and not on paper. The above are the rules imposed by the office, being found necessary for the convenient transaction of their business. And applicants are advised to employ competent artists to make the drawings, as they will be returned if not executed in con- formity with these rules. Thick drawings should never be folded for transmission. MODEL. A model is required in every case where the nature of the invention admits of such illustration. It must be neatly and substantially made of durable material, and not more than one foot in length or in height. If made of pine or other soft wood, it should be painted, stained, or varnished. Models filed as exhibits, in interference and other cases, may be returned to the applicant, at the discretion of the commissioner. A working model is always desirable, in order to enable the office fully and readily to understand the precise operation of the machine. The name of the inventor, and also of the assignee (if assigned), and also the title of the invention, must be affixed upon it in a permanent manner. When the invention is a composition of matter, a specimen of each of the ingredients and of the composition must accom- OF THE EXAMINATION. 669 pany the application, and tlie name of the inventor and of the assignee (if there be one) must be permanently affixed thereto. When a work of design can be sufficiently represented by a drawing, in the judgment of the commissioner, a model will not be required by him. If photographs are used by the applicant for the illustration of works of design, they should be pasted upon thick drawing- paper, or thin Bristol-board, of the size prescribed for drawings ; but, in every case where this mode of illustration is employed by an applicant, he will do well to deposit in the office the glass or other "negative" from which the photograph is printed, so that exact official copies may be made therefrom when desirable. COMPLETION OF THE APPLICATION. No application is examined, nor is the case placed upon the files for examination, until the fee is paid, the model or speci- men deposited, and the specification, with the petition, oath, and drawings (when required), filed. It is desirable that every- thing necessary to make the application complete should be deposited in the office at the same time. OF THE EXAMINATION. All cases in the Patent Office are arranged in classes, which are taken up for examination in regular rotation ; those in the same class being examined and disposed of, as far as practicable, in the order in which the respective applications are completed. When, however, the invention is deemed of peculiar importance to some branch of the public service, and when, for that rea- son, the head of some department of the government specially requests immediate action, the case will be taken up out of its order. These, with applications for re-issue, and for inventions for which a foreign patent has been issued, are the only excep- tions to the rule above stated in relation to the order of examination. When an application has been once rejected, either in whole or in part, and the applicant desires a second examination, either with or without amendment, he will be entitled to it with as little delay as may be practicable, so that he may be in con- 43 670 THE LA W OF PA TENTS. dition to appeal, if desirable, without loss of time. When an application has been finally decided, the office will retain the original papers, furnishing the applicant copies — if he desires them — at the usual expense. When a patent is granted, it will be transmitted to the patentee, or to his agent, having a full power of attorney authorizing him to receive it. PROTESTS. The office cannot stay the regular proceedings on applica- tions for letters-patent in consequence of protests founded upon mere ex parte statements; but, where affidavits of disinterested persons are received, they will be considered and allowed such weight as they may seem entitled to. WITHDRAWALS. Although an application be rejected, no money paid thereon, nor for a design, nor for a re-issue, can be withdrawn from the patent office by the applicant. APPEALS. After an application for a patent has been twice rejected by the examiner having it in charge, it may, at the option of the applicant, be brought before the board of examiners-in-chief, on payment of a fee of ten dollars. For this purpose, a petition in writing must be filed, signed by the party or his authorized agent or attorney. (247.) Form of Appeal to the Examiners-in-Chief. To THE Commissioner of Patents. Sir, — I hereby appeal to the examiners-in-chief from the decision of the principal examiner in the matter of my application for a patent for an improvement in {here state the subject of the invention) rejected a second time on day of Respectfully, [Signature.) The examiners-in-chief will consider the case as it was when last passed upon by the primary examiner, merely revising his decisions so far as they were adverse to the applicant. APPEALS. 671 All cases which have been acted on by the board of examiners- in-chief may be brought before the commissioner in person, upon a written request to that effect, and upon the payment of the fee of twenty dollars required by law. A decision deliber- ately made and approved by one commissioner will not be disturbed by his successor. The only remaining remedy will be by appeal in those cases allowed by law to the judges of the Supreme Court of the District of Columbia. The mode of appeal from the decision of the office to the judges of the Supreme Court of the District of Columbia is by giving written notice thereof to the commissioner, filing in the patent office, within thirty days after notice of the decision, reasons of appeal, and paying to him the sum of twenty-five dollars. Printed forms of notice of appeal, of the reasons of appeal, and of the petition, will be forwarded from the patent office to any one wishing to make an appeal, on his request. The following rules were adopted by the Supreme Court in appeals from the decisions of the Commissioner of Patents, and they are given here, as they may be useful guides to the appli- cant or his counsel. The party desiring to appeal from the decision of the Com- missioner of Patents must give written notice thereof to the commissioner, accompanied with his petition to the Supreme Court of the District of Columbia to grant him a hearing, and file the reasons of appeal, and pay the fee of twenty-five dollars. The appellant, previous to any action on, and preparatory to the hearing of any appeal, must comply with the requisites of the law in the patent office, and his petition must state con^ cisely — 1. The application for the patent ; 2. Its nature, and, if a case of interference, 3. The residence of the party interested ; 4. The commissioner's refusal; 5. The prayer of appeal ; 6. Notice thereof to the commissioner ; 7. The filing of the reasons of appeal in the patent office ; and, 8. The payment into the office of the sum required by law. 6/2 THE LA W OF PA TENTS. To every petition must be annexed a certificate of the proper officer that the requisitions of the law have been com- plied with, or an affidavit of the truth of the facts stated in the petition. No notice to the commissioner will be issued until such certificate or affidavit be made or produced. The' appeal will be tried upon the evidence which was in the case and produced before the commissioner. The appellant must file his argument, in writing, within five days after the commissioner shall send in his report, and the papers, models, and drawings or specimens, or within five days after the day of hearing, which argument must state the facts and law relied on, together with the authorities in support of the same. In contested cases the appellee shall file his argument, in writing, within ten days after the appellant shall have filed his argument. At the hearing, oral arguments may be made, not to occupy more than one hour for each counsel engaged, and not more than two counsel in each case will in any case be heard, and in no case will oral argument be heard unless the opposite party shall have reasonable notice thereof, through the mail or otherwise, from the party desiring to be heard orally ; or where oral arguments are ordered by the court, the appellant shall give the notice. The court, having fully heard the appeal, shall return all the papers to the commissioner, with a certificate of its proceedings and decisions, which shall be entered of record in the patent office, and such decision, so certified, shall govern the further proceedings of the commissioner in such case. INTERFERENCES. When each of two or more persons claims to be the first inventor of the same thing, an "interference" is declared between them, and a trial is had before the examiner. Nor does the fact that one of the parties has already obtained a patent prevent such an interference; for. although the commis- sioner has no power to cancel a patent already issued, he may, if he finds that another person was the prior inventor, give him INTERFERENCES. 673 also a patent, and thus place them on an equal footing before the courts and the public. If an applicant for a re-issue embraces in his amended specification any new or additional description of his invention, or enlarges his claim, or makes a new one, and thereby includes therein anything which has been claimed in any patent granted subsequent to the date of his original application, as the invention of another person, an interference will be declared between the application and any unexpired patent, or pending application, in which the same thing is claimed ; but not where such pending application for re-issue claims only what was granted in the original patent. When an application is found to conflict with a caveat, the caveator is allowed a period of three months within which to present an application, when an interference may be declared. In cases of interference, patentees have the same remedies by appeal as applicants in pending applications. In contested cases, whether of interference or of extension, parties may have access to the testimony on file, prior to the hearing, in presence of the officer in charge ; or, when practicable, copies may be obtained by them at the usual charges. In cases of interference, the party who first made oath to the invention will be deemed the first inventor in the absence of all proof to the contrary. A time will be assigned in which the other party shall complete his direct testimony, and a further time in which the adverse party shall complete the testimony on his side ; and a still further time in which the first party shall close his rebutting testimony, but shall take no other. If there are more than two parties, the times for taking testimony shall be so arranged that each shall have a like oppor- tunity in his turn, each being held to go forward and prove his case against those who made oath to their applications before him. If either party wishes the time for taking his testimony, or for the hearing, postponed, he must make application for such postponement, and must show sufficient reason for it by affidavit filed before the time previously appointed has elapsed, if practicable; and must also furnish his opponent with copies of his affidavits, and with seasonable notice of the time of hearing his application. 6/4 "'■^^-5' LA W OF PA TENTS. When an interference has been declared, and a new applica- tion claiming the invention in controversy comes into the office before the final determination of such interference, the new application will be included in the case, and the proper means will be taken to allow all the parties a fair hearing. The testimony taken by the original parties will be retained in the case, provided that due opportunity can be given the new appli- cant to cross-examine the witnesses. If, however, on the original interference, an appeal has been taken to the examiners- in-chief, before the new application is filed, such new applica- tion will be suspended until the decision in the original case, after which a new interference may be declared with the suc- cessful party. After an interference has been declared, another interference will not be declared upon a new application filed by either party unless it is shown to the satisfaction of the office that such party has new testimony which he could not have procured in time for the hearing, and which might change the decision. When an application is adjudged to interfere with a part only of another pending" application, the interfering parties will be permitted to see or obtain copies of so much only of the specifications as refers to the interfering claims. And either party may, if he so elect, withdraw from his application the claims adjudged not to interfere, and file a new application therefor. In such case, the new application will be examined without reference to the interference from which it was with- drawn. RE-ISSUES. A re-issue is granted to the original patentee, his heirs, or the assignees of the entire interest, when, by reason of an insufficient or defective specification, the original patent is invalid, provided the error has arisen from inadvertence, acci- dent, or mistake, without any fraudulent or deceptive intention. The petition for a re-issue must show that all parties owning any undivided or territorial interest in the patent (irrespective of licenses) concur in the surrender. And a certified statement of the title of the party surrendering must be filed with the application. Whatever is really embraced in the original inven- FORM OF SURRENDER OF PATENT FOR RE-ISSUE. 67S tion, and so described or shown that it might have been embraced in the original patent, may be the subject of a re-issue ; but an applicant will not be allowed the benefit of proof that there was more in his invention than is shown in his original application, model, or specimens. Re-issued patents expire at the same time that the original patent would have done. For this reason, applications for re-issue will be acted upon immediately after they are com- pleted. A patentee may, at his option, have in his re-issue a sepa- rate patent for each distinct part of the invention comprehended in his original application, by paying the required fee in each case, and complying with the other requirements of the law, as in original applications. Each division of a re-issue constitutes the subject of a separate specification descriptive of the part or parts of the invention claimed in such division ; and the draw- ing may represent only such part or parts. One or more divisions of a re-issue may be granted, though other divisions shall have been postponed or rejected. In all cases of applica- tions for re-issues, the original claim is subject to re-examina- tion, and may be revised and restricted in the same manner as in original applications. The following are appropriate forms of application for re-issue : (248.) Form of Surrender of a Patent for Re-issue. To THE Commissioner of Patents : The petition of , of , in the County of and State of , Respectfully represents : That he did obtain letters-patent of the United States, for which letters-patent are dated on the first day of March, 1850; that he now believes that the same are inoperative and invalid by reason of a defective specification, which defect has arisen from inadvertence and mistake. He therefore prays that he may be allowed to surrender the same, and requests that new letters-patent may issue to him, for the same invention, for the residue of the period for which the original patent was granted, under the amended specification herewith presented, he having paid thirty dollars into the treasury of the United States, agreeably to the requirements of the act of Congress in that case made and provided. (Siguaiure.) 676 THE LA W OF PA TENTS. (349.) Form of Oath to be appended to Applications for Re-issue. City (or Town) of County of State of On this day of 18 , before the subscriber, a personally appeared the above-named and made solemn oath (or affirmation) that he verily believes that, by reason of an insufficient or defective specification his aforesaid patent is not fully valid and available to him, and that the said error has arisen from inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, to the best of his knowledge or belief. {Signature^ {Signed.) Applications for re-issues will not be kept secret ; and in- formation respecting the same will be furnished upon inquiry, as well as copies of the proposed claims for publication. DISCLAIMERS. Where, by inadvertence, accident, or mistake, the original patent is too broad, a disclaimer may be filed either by the original patentee or by any of his assignees. The following is a sufficient form for a disclaimer: (250.) Form for a Disclaimer by an Assignee. To THE Commissioner of Patents: The petition of of in the County of and State of . Respectfully represents : That he has, by grant, duly recorded in the patent office, become the owner of a right for the several States of Massachusetts, Connecticut, and Rhode Island, to certain improvements in the steam-engine, for which letters- patent of the United States were granted to of in the State of dated on the day of 18 ; that he has reason to believe that through inadvertence and mistake, the claim made in the specification of said letters-patent is too broad, including that of which the said patentee was not the first inventor. Your petitioner, there- fore, hereby enters his disclaimer to that part of the claim in the aforenamed specification which is in the following words, to wit : " I also claim the par- ticular minner in which the piston of the above-described engine is constructed, so as to insure the close fitting of the packing thereof to the cylinder, as set forth ; " which disclaimer is to operate to the extent of the EXTENSIONS. 677 interest in said letters-patent vested in your petitioner, who has paid ten dollars into the treasury cf the United States, agreeably to the requirements of the act of Congress in that case made and provided. (Signature.) The above form is for disclaimer by an assignee. When the disclaimer is made by the original patentee, it must, of course, be so worded as to express that fact. EXTENSIONS. The applicant for an extension must file his petition and pay in the requisite fee at least ninety days prior to the expira- tion of his patent. The commissioner has no power to renew a patent granted since March 2, 1861 ; but he may extend one granted before, for seven years. The questions which arise on each application for an exten- sion are : Is the invention novel? Is it ttsefnl? Is it valuable and important to the public .' Has the inventor been adequately remtmei-ated for his time and expense in originating and perfecting it .' Has he used due diligence in introducing his invention into general use .' The first two questions will be determined upon the result of an examination in the patent office ; as will also the third, to some extent. To enable the commissioner to come to a correct conclusion in regard to the third point of inquiry, the applicant should, if possible, procure the testimony of persons disinterested in the invention, which testimony should be taken under oath. In regard to the fourth and fifth points of inquiry, in addition to his own oath showing his receipts and expenditures on account of the invention, by which its value is to be ascertained, the applicant should show, by testimony on oath, that he has taken all reasonable measures to introduce his invention into general use ; and that, without default or neglect on his part, he has failed to obtain from the use and sale of the invention a reason- able remuneration for the time, ingenuity, and expense bestowed on the same, and the introduction thereof into use. 678 THE LA W OF PA TENTS. In case of opposition by any person to the extension of a patent, both parties may take testimony, each giving reasonable notice to the other of the time and place of taking said testi- mony, which shall be taken according to the rules prescribed by the Commissioner of Patents in cases of interference. A monopoly of his invention is secured by the law now in force to the inventor for the term of seventeen years, with a view to compensate him for his time and expense in originating and perfecting it. At the end of the time for which his patent runs his monopoly should cease, and the invention become public property, unless he can show good reason for the contrary. The presumption is always against his application ; and if he cannot show that his invention is novel, useful, and valuable, and important to the public, and that having made all reasonable effort to introduce it into general use, he has not been ade- quately remunerated for his time and expense in discovering and perfecting it, the applicant cannot have an extension. Therefore, the applicant for an extension must furnish to the office a statement in writing, under oath, of the ascertained value of the invention, and of his receipts and expenditures. This statement should be made particular and in detail, imless sufficient reason is set forth why such a statement cannot be furnished. This statement should be filed within thirty days after filing his petition. Any person who intends to oppose an application for exten- sion may, at any time after such application has been made, give notice of such intention to the applicant. After this he will be regarded as a party in the case, and be entitled to notice of the time and place of taking testimony, as well as to a list of the names and residences of witnesses whose testimony may have been previously taken ; but he must file his reasons in the patent office at least twenty days before the day of hearing. The person opposing the extension will be entitled to a copy of the application, and of any other papers on file, upon paying the costs of copying. In contested cases, no testimony will be received, unless by consent, which has been taken within thirty days next after the filing of the petition or the extension. In the notice of the DESIGNS. gyg application for an extension, a day will be fixed for the reception of testimony ; a day ten days, later for the reception of argu- ments ; and a day ten days after this for a hearing. Applications for a postponement of the hearing must be made and supported according to the same rules as are to be observed in the case of interferences. But they will not be granted in such manner as to cause a risk of preventing a decision in season. DESIGNS. Designs are provided for by the Act of July 8, 1870, Sects. 71 to y6, as follows: Any person, who by his own industry, genius, efforts, and expense, has invented or produced any new and original design for a manufacture, bust, statue, alto-relievo, or bas-relief; any new and original design for the printing of woolen, silk, cotton, or other fabrics ; any new and original impression, ornament, pattern, print, or picture, to be printed, painted, cast, or other- wise placed on or worked into any article of manufacture ; or any new, useful, and original shape or configuration of any article of manufacture, the same not having been knovi^n or used by others before his invention or production thereof, or patented or described in any printed publication, — may, upon payment of the duty required by law, and other due proceedings had the same as in cases of inventions or discoveries, obtain a patent therefor. And the commissioner may dispense with models of designs when the design can be sufficiently represented by drawings or photographs. Patents for designs may be granted for the term of three years and six months, or for seven years, or for fourteen years, as the applicant may in his application elect. And patentees of designs issued prior to March 2, 1861, shall be entitled to exten- sion of their respective patents for the term of seven years, in the same manner and under the same restrictions as are pro- vided for the extension of patents for inventions or discoveries issued prior to the second day of March, 1861. The following are the rates of fees in design cases : For three years and six months, ten dollars. For seven years, fifteen dollars. 68o THE LA W OF PA TENTS. For fourteen years, thirty dollars. For all other cases in whicli (ces are required, the same rates as in cases of inventions or discoveries. All the regulations and provisions which apply to the obtain- ing or protection of patents for inventions or discoveries, not inconsistent with the provisions of the statute, apply to patents for designs. The following forms are proper to be observed in applica- tions of this nature : (251.) Form of Application for Patents for Designs. To THE Commissioner of Patents : The petiLion of of , ia the County of and State of , Respectfully represents : That 3'our petitioner has invented or produced a new and original design for , which he verily believes has not been known prior to the production thereof by your petitioner. He therefore prays that letters-pat- ent of the United States may be granted to him therefor, for the term of years, vesting in him and his legal representatives the exclu- sive right to the same, upon the terms and conditions expressed in the act of Congress in that case made and provided, he having paid dollars into the treasury, and complied with the other provisions of the said act. (Sii^nahire^ The following may be used as a form of specification for designs : (352.) Form, of Specification for Designs. To ALL WHOM IT MAY CONCERN:— Be it known that I , of the city of , in the County of , and State of , have originated and designed a new pattern for carpets or other fabrics (or design for a trade- mark), of which the following is a full, clear, and exact description, reference being had to the accompanying specimens or drawings, making part of this specification. [Here follows a description of the design, with reference to the specimen or drawing, the specification to conclude as follows :] {Signature^ DS. FOREIGN PA TENTS. gg I Claim. What I claim as my invention and desire to secure by letters-patent is the design or pattern for carpets or other fabrics (or design for a trade- mark) herein set fortli. Witnesses. (2S3.) Form of Oath. City (or Town) of and County of State op On this day of , i8 , before the subscriber, a , personally appeared the within-named and made solemn oath (or affirmaiion, as the case may be) that he verily believes him- self to be the original and first inventor or producer of the design for a com- positior in alto-relievo, and that he does not know or believe that the same was ever before known or used, and that he is a citizen of the United States. (Signatitre^ FOREIGN PATENTS. The taking out of a patent in a foreign country does not prejudice a patent previously obtained here ; nor does it pre- vent obtaining a patent here subsequently, if the invention has not been in public use in the United States for more than two years. When application is made for a patent for an invention which has been already patented abroad, the inventor will be required to make oath, that, according to the best of his knowl- edge and belief, the same has not been introduced into public and common use in the United States for more than two years prior to the application. An applicant who has obtained a for- eign patent, should state that a foreign patent or patents have been obtained, and should give the date of the patent having the shortest term. The reason of this is, that the statute provides, that the patent granted in this country should expire with the foreign patent, or, if there be more than one, at the same time with that having the shortest term ; and in no case can it be in force more than seventeen years. CAVEATS. Any citizen of the United States, or alien who has resided for one year last past in the United States, and has made oath 682 THE LA W OF PA TENTS. of his intention to become a citizen thereof, can file a caveat in the secret archives of the patent offic2 on the payment of a fee of ten dollars therefor. And if, at any time within one year thereafter, another person applies for a patent for the same invention, the caveator will be entitled to notice to file his appli- cation, and to go into interference with the applicant for the purpose of proving priority of invention, and obtaining the patent if he succeed. He must file his application within three months from the day on which the notice to him is depos- ited in the post-office at Washington, adding the regular time for the transmission of the same to him ; and the day when the time for filing expires shall be mentioned in the notice or indorsed thereon. The caveator will not be entitled to notice of any application pending at the time of filing his caveat, nor of any application filed after the expiration of one year from the date of filing the caveat ; but he may renew his caveat at the end of one year by paying a second caveat fee of ten dollars, which will continue it in force for one year longer, and so on from year to year as long as the caveator may desire. No caveat can be filed in the secret archives of the office unless accompanied by an oath of the caveator that he is a cit- izen of the United States, or that he is an alien and has resided for one year last past within the United States, and has made oath of his intention to become a citizen thereof ; nor unless the applicant also states under oath that he believes himself the original inventor of the art, machine, or improvement set forth in his caveat. A caveat need not contain as particular a description of the invention as is requisite in a specification ; but still the descrip- tion should be sufficiently precise to enable the office to judge whether there is a probable interference when a subsequent application is filed. Caveat papers cannot be withdrawn from the office nor under- go alteration after they have once been filed ; but additional papers relative to the invention may be appended to the caveat (their date being noted), provided they are merely amendatory of the original caveat. In the case of filing papers supplement- ary to an original caveat, the right to notice in regard to the sub- ASSIGNMENTS AND GRANTS. 683 ject of those papers expires with the caveat ; and any additional papers not relating to the invention first caveated will receive no notice. The caveator, or any person properly authorized by him, can at any time obtain copies of the caveat papers at the usual rates. The caveat should be accompanied by drawings or sketches. The following is a proper form of a caveat : (264.) Form of a Caveat. To THE Commissioner of Patents : The petition of , of , in the County of , and State of , Respectfully represents : That li2 has made certain improvements in and that he is now engaged in making experiments for the purpose of per- fecting the same, preparatory to his applying for letters-patent therefor. He therefore prays that the subjoined description of his invention may be filed as a caveat in the confidential archives of the patent office, agreeably to the provisions of the act of Congress in that case made and provided ; he having paid ten dollars into the treasury of the United States, and otherwise com- plied with the requirements of the said act. (Signattire^ (Date:) [Here should follow a description of the general principles of the inven- tion so far as it has been completed.] The caveator must make oath or affirmation substantially according to the form already given. THE REPAYMENT OF MONEY. Money paid by actual mistake will be refunded, but a mere change of purpose after the payment of money will not entitle a party to demand such return. ASSIGNMENTS AND GRANTS. A patent may be assigned, either as to the whole interest or any undivided part thereof, by any instrument of writing. No particular form of words is necessary to constitute a valid assign- ment ; nor need the instrument be sealed, witnessed, or acknowl- 684 ^-^^-^ -^^ ^^ "^^ PATENTS. edged. A patent will, upon request, issue directly to the assignee or assignees, of the entire interest in any invention, or to the inventor and the assignee jointly, when an undivided part only of the entire interest has been conveyed. In every case where a patent issues or re-issues ^o an assignee, the assignment must be recorded at the patent office at least five days before the issue of the patent ; and the specification must be sworn to by the inventor. Every assignment or grant of an exclusive territorial right must be recorded in the patent office within three months from the execution thereof ; otherwise it will be void as against any subsequent purchaser or mortgagee for a valuable consideration without notice ; but, if recorded after that time, it will protect the assignee, or grantee, against any such subsequent purchaser whose assignment or grant is not then on record. The receipt of assignments is not generally acknowledged by the office. They will be recorded in their turn within a few days after their reception, and then transmitted to persons enti- tled to them. A five-cent stamp is required for each sheet or piece of paper on which an assignment may be written. (255.) Form of Assignment of the Entire Interest in Letters- Patent before obtaining the same, and to be Recorded preparatory thereto. Whereas I, of in the County of and State of have invented certain new and useful improvements in ploughs, for which I am about to make appHcation for letters-patent of the United States ; and whereas of has agreed to pur- chase from me all the right, title, and interest which I have, or may have, in and to the said invention, in consequence of the grant of letters-patent there- for, and has paid to me, the said the sum of five thousand dollars, the receipt of which is hereby acknowledged : Now this indenture witness- eth, that for and in consideration of the said sum to me paid, I have assigned and transferred, and do hereby assign and transfer, to the said the full and e.xclusive right to all the improvements made by me, as fully set forth and described in the specification which I have prepared and executed preparatory to the obtaining of letters-patent therefor. And I do hereby authorize and request the Commissioner of Patents to issue the said letters- patent to the said as the assignee of my whole right and title thereto, for the sole use and behoof of the said and his legal representatives. OFFICE FEES, AND HOJV PA YABLE. 685 In Testimony Whereof, I have hereunto set my hand and affixed my seal this day of 18 . {Signature.) {Seal.) Sealed and Delivered in Presence of , (25G.) Form of a Grant of a Partial Hight in a Patent. "Whereas I, of in the County of and State of did obtain letters-patent of the United States for which letters-patent bear date the day of 18 ; and whereas of is desirous of acquiring an interest therein: Now this indenture witnesseth, that for and in considera- tion of the sum of two thousand dollars, to me in hand paid, the receipt of which is hereby acknowledged, I have granted, sold, and set over, and do hereby grant, sell, and set over, unto the said all the right, title, and interest which I have in the said invention, as secured to me by said letters- patent for, to, and in the several States of New York, New Jersey, and Pennsylvania, and in no other place or places ; the same to be held and enjoyed by the said for his own use and behoof, and for the use and behoof of his legal representatives, to the full end of the term for which said letters-patent are granted (if it is intended to grant for any extended term, then add — and for the term of any extension thereof), as fully and entirely as the same would have been held and enjoyed by me had this grant and sale not been made. In Testimony "Whereof, I hereunto set my hand and affix ray seal this day of 18 {Signature^ {Seal.) Sealed and Delivered in Presence of THE OFFICE FEES, AND HOW PAYABLE. Nearly all the fees payable to the patent office are positively required by law to be paid in advance. For the sake of uni- formity and convenience, the remaining fees are required to be paid in the same manner ; that is to say, before the labor is performed for which they are to be received in payment. The following is the tariff of fees established by law : On every application for a design, for three years and six months ;^ 10.00 On every application for a design, for seven years, . 15.00 On every application for a design, for fourteen years, . 30.00 On every caveat, 10.00 44 686 THE LA W OF PA TENTS. On every application for a patent, ..... ^15.00 On issuing eacli original patent, ..... 20.00 On filing a disclaimer, ....... 10.00 On every application for a re-issue, .... 30.00 On every application for a division of a re-issue, . . 30.00 On every application for an extension, .... 50.00 On the grant of every extension, ..... 50.00 On the first appeal from a primary examiner to examin- ers-in-chief, ........ 10.00 On appeal to the Commissioner from examiners-in-chief, 20.00 On depositing a trade-mark for registration, . . . 25.00 On every copy of a patent or other instrument, for every 100 words, ......... 10 On every copy of drawing, the cost of having it made. For recording every assignment of 300 v/ords or under, i.oo For recording every assignment, if over 300 and not over 1,000 words, . . . . . . . .2.00 For recording every assignment, if over 1,000 Vv'ords, . 3.00 The final fee on issuing a patent must be paid within six months after the time at which the patent was allowed, and notice thereof sent to the applicant or his agent. And if the final fee for such patent be not paid within that time, the patent will be withheld, and the invention therein described become public property as against the applicant therefor, unless he shall make a new application therefor within two years from the date of the allowance of the original application. The money for the payment of fees should be deposited with an assistant treasurer, or other officer authorized to receive the same, taking his certificate, and remitting the same to this office. When this cannot be done without inconvenience, the money may be remitted by mail ; and in every case the letter should state the exact amount enclosed. Letters containing money should be registered at the post-office where mailed. HOW FEES MAY BE PAID. The statute of 1870 provides that the following officers are authorized to receive patent-fees on account of the Treasurer of TAKING AND TRANSMITTING TESTIMONY. 687 the United States, and to give receipts and certificates of deposit therefor, namely, the Commissioner of Patents, or the Treasurer, or any of the assistant treasurers, of the United States, or any of the designated depositaries, national banks, or receivers of public money, designated by the Secretary of the Treasury for that purpose ; and he shall give the depositor a receipt or cer- tificate of deposit therefor. And all money received at the patent office for any purpose, or from any source whatever, shall be paid into the treasury as received, without any deduction whatever ; and all disbursements for said office shall be made by the disbursing clerk of the Interior Department. All money sent by mail, either to or from the patent office, will be at the risk of the owner. In no case should money be sent enclosed with models. All payments to or by the office, should be paid in specie, or treasury notes, or national bank notes. TAKING AND TRANSMITTING TESTIMONY. The clerks of the circuit courts of the United States may issue subpoenas to compel the attendance of witnesses when depositions are to be read in evidence in any contested cases in the patent office. In interferences and other contested cases, the following rules have been established for taking and transmitting evi- dence : 1. That before the deposition of a witness or witnesses be taken by either party, notice shall be given to the opposite party, as hereinafter provided, of the time and place when and where such deposition or depositions will be taken, with the names and residences of the witness or witnesses, so that the oppo- site party, either in person or by attorney, shall have full opportunity to cross-examine the witness or witnesses. And such notice shall, with proof of service of the same, be attached to the deposition or depositions, whether the party cross- examine or not, and such notice shall be given in sufficient time for the appearance of the opposite party, and for the transmission of the evidence to the patent office before the day of hearing. 2. That, whenever a party relies upon a caveat to establish 688 THE LA ir OF PA TENTS. the date of his invention, a certified copy thereof must be filed in evidence, with due notice to the opposite party, as no notice can be taken by the office of a caveat filed in its secret archives. 3. That all evidence, etc., shall be sealed, and addressed to the Commissioner of Patents by the person before whom it shall be taken, and so certified thereon. 4. That the certificate of the magistrate taking the evidence shall be substantially in the following form, and written upon the envelope, viz. : (^57.) Form of Magistrate's Certificate. I hereby certify that the depositions of A B, C D, etc, relating to the matter of interference between E F and G H, were talcen, sealed up, and addressed to the Commissioner of Patents by me. {Signature^ 5. In cases of extension, where no opposition is made, the party's own testimony will be received from the applicant ; and such testimony as may have been taken by the applicant prior to notice of opposition shall be received, unless taken within thirty days after filing the petition for the extension ; but the applicant shall give prompt notice to the opposing party or par- ties of the names and residences of the witnesses whose testi- mony has thus been taken. No evidence touching the matter at issue will be considered upon the day of hearing which shall not have been taken and filed in compliance with these rules : Provided, notice of the objection has been given to the other party. But if either party shall be unable, for good and sufficient reasons, to procure the testimony of a witness or witnesses within the stipulated time, then it shall be the duty of said party to give notice of the same to the Commissioner of Patents, accompanied by statements, under oath, of the cause of such inability, and of the names of such witnesses, and of the facts expected to be proved by them, and of the steps which have been taken to procure said testi- mony, and of tJic time or times when efforts have been made to procure it ; which last-mentioned notice to the commissioner shall be received by him previous to the day of hearing afore- said. FORM IN TAKING OF DEPOSITIONS. 689 The notice for taking testimony must be served by deliver- ing to the adverse party a copy. If lie is not found, such service may be made upon his agent or attorney of record, or by leav- ing a copy at the party's usual place of residence, with some member of the family who has arrived at the years of discretion. This notice must be annexed to the deposition, with a certificate duly sworn to, stating the manner and time in which the service was made. The testimony must (if either party desires it) be taken in answer to interrogatories, having the questions and answers committed to writing in their regular order by the magistrate, or, under his direction, by some person not interested in the issue, nor the agent or attorney of one who is. The deposition, when complete, must be signed by the witness. The magis- trate must append to the deposition his certificate, stating the time and place at which it was taken, the names of the witnesses, the administration of the oath, at whose request the testimony was taken, the occasion upon which it is intended to be used, the names of the adverse party (if any), and whether they were present. No notice will be taken, at the hearing, of any merely formal or technical objection, unless it may reasonably be presumed to have wrought a substantial injury to the party raising the objec- tion ; nor even then, unless, as soon as that party became aware of the objection, he immediately gave notice thereof to this office, and also to the opposite party, informing him at the same time that, unless corrected, he should urge his objection at the hearing. Each party may furnish at the hearing an ab- stract of the testimony filed by him, not exceeding in length one-sixth of the original. The following are useful forms for the taking of deposi- tions : (268.) Form in Taking of Depositions. A B, being duly sworn, doth depose and say, in answer to interrogator ries proposed to him by C D, counsel for E F, as follows, viz. . I. Interrogatory. What is your name, your residence, and occupation': I. Answer. My name is A B ; I am a carpenter, and reside in Boston, Mass. 6go THE LA W OF PA TENTS. And in answer to cross-interro^atcries proposed to him by G H, counsel for I K, as follows : I. Cross-ititerrogatory, etc. (Signed) A B. State of ss. County of At in said county, on the day of , A.D. l3 , before me personally appeared the above-named A E, and made oath that the foregoing deposition by him subscribed, contains the whole truth, and nothing but the truth. The said deposition is taken at the request of E F, to be used upon the hearing of an interference between the claims of the said E F and those of I K, before the Commissioner of Patents of the United, States, at his office, on the day of next. The said I K was duly notified, as appears by the original notice hereto annexed, and attended by G H, his counsel. Certified by me : (Signature^ The magistrate must then seal up the deposition when com- pleted, and indorse upon the envelope a certificate according to the form before the last. After a second rejection none of the papers can be inspected save in the presence of a sworn officer, nor will any of the papers be returned to the applicant or agent. Whenever it shall be found that two or more parties whose interests are in conflict are represented by the same attorney, the examiner in chaige will notify each of said principal parties of this fact. THE FILING AND PRESERVATION OF PAPERS. All claims and specifications filed in this office (including amendments) should be written in a fair, legible hand, without interlineations or erasures, except such as are clearly stated in a marginal or foot-note, written on the same sheet of paper ; or, failing in which, the office may require them to be printed. All papers filed in the office will be regarded as permanent records of the office, and must never, on any account, be changed, further than to correct mere clerical mistakes. FORM OF AMENDMENT OF SPECIFIC A TION. 69I AMENDMENTS. The applicant has a right to amend, of course, after the first rejection, and lie may amend after the second, if the examiner therein present any new references, unless the devices claimed by him in the first amendment were entirely different from those originally relied upon, and not mere modifications of them. After a second rejection, and before appeal to the exam- iners-in-chief, the applicant may draw up special amendments and present the same to the commissioner, together with an affidavit showing good cause why the amendments were not sooner offered, whereupon the commissioner may, in his discre- tion, grant leave to make such special amendments, and allow a reconsideration. No alterations or amendments, except of clerical errors, will be allowed after an appeal to the examiner- in-chief, or after the patent has been ordered to issue, unless the same are approved by the examiner in charge. All amendments of the model, drawings, or specifications, must conform to at least one of them as they were at the time of the filing of the application ; and all amendments of specifi- cations or claims must be made on separate sheets of paper from the original, and must be filed in the manner above directed. Even when the amendment consists in striking out a portion of the specification, or other paper, the same course should be observed. No erasures must be made. The papers must remain forever just as they were when filed, so that a true history of all that has been done in the case may be gathered from them. The following are forms proper to be observed in such cases: (269.) Form of Amendment of Specification. " I hereby amend my specification by inserting the following words after the word , in the line of the page thereof " (here should follow the words that are to be inserted) ; or, " I hereby amend my specifi- cation by striking out the Hne of the page thereof ; " or, " by striking out the first and fourth clauses of the claim appended thereto ; " or whatever may be the amendment desired by the applicant. In each case the exact word to be stricken out or inserted should be clearly described, and the precise jsoint indicated where any insertion is to be made. 692 THE LAW OF PATENTS. THE DOMINION OF CANADA. The Patent Law of the Dominion of Canada was enacted in 1872. It is long and minute; but in its leading principles and purpose it resembles the law of the United States. The principal differences are as follows : The Patent Office is a part of the Department of Agricul- ture. There is a Commissioner of Patents, and applications for any purpose connected with patents must be made to him. No inventor can have a patent if his invention has been in public use or on sale more than a year in Canada, previous to his application, with the consent of the inventor. Nor if a patent for the same exists in another country more than twelve months previous to application in Canada. If, during said twelve months, any person begins to manufacture the article in Canada, he shall have the right to continue the same. Appli- cant must elect a domicil in Canada for the purposes of this patent, and declare the same in his petition. The article to be sold under this patent must be made in Canada, and not imported into it ; and the manufacture must begin within two years from the granting of the patent ; but these two years may be extended by the Commissioner. The patent-right is granted for five, ten, or fifteen years, at the option of the appli- cant. The interests of inventors and of the public, and the proper transaction of the immense and complicated business of the patent office, absolutely require it should be governed by rules ; and most of them are rigidly adhered to. The statements, rules, and forms above given are substantially the same as those prepared by the Commissioner of Patents for the information and guidance of applicants. The experience of the author of this book author- izes him to say that all who deal with any of the officers of the patent office will meet with kindness and courtesy, and as much indulgence and assist- ance as the business and the rules of the office permit. Missing Page Missing Page THE LAW OF COPYRIGHT. 695 TRADE-MARKS. The Statute of July 8, 1870, so far as it provided for trade- markg, has, by a recent decision of the Supreme Court of the United States, been declared unconstitutional, and is therefore no longer in force. The Sections of the Statute relating to trade-marks, which have been found in recent editions of this book on pages 692 to 695 inclusive, are therefore omitted in this edition. The law of trade-marks must consequently rest upon the principles of the Common Law, affii^raed and aided by the Statutes of some of the States. A trade-mark may be defined as a name or device used by a seller in connection with goods sold by him, to indicate that they are made by hira, or that he has some exclusive right to sell them, and thus to secure to him the profits arising from the peculiar character of the goods bearing that mark. It is certain that actions at law by the party possessing or claiming to possess the exclusive right to use a certain trade- mark, were common before the Statute of 1870 was enacted, and we know no reason why they should not be brought now, and full compensation be recovered by way of damages. At all events, trade-marks have been protected for a long time by the English common law, and many American cases adopted this principle as a part of our common law for some years before the passage of our National Statute. In the Dominion of Canada, trade-marks are protected by a stringent statute enacted in 1872, and since amended. The violation of them forfeits the article, and subjects the guilty party to punishment. If one is indicted for fraud by the use of a false or simulated trade-mark, it is not necessary, on the trial, to prove intent to defraud any particular person. CHAPTER XXXIV. THE LAW OF COPYPJGHT. This Law, now in force in the United States, is contained in Sections 4948 to 4971 of the Revised Statutes of the United States, in force December i, 1873, as amended by an Act 696 THE LAW OF COPYRIGHT. approved June 18, 1874. As these sections are too closely con- densed to admit of farther abbreviation, and every one of their provisions is material, we give them in this chapter. Section 4948. All records and other things relating to copyrights and required by law to be preserved, shall be under the control of the Librarian of Congress, and kept and preserved in the Library of Congress ; and the librarian of Congress shall have t!ie immediate care and supervision thereof, and, under the supervision of the Joint Committee of Congress on the Library, shall perform all acts and duties required by law touching copy- rights. Sec. 4949. The seal provided for the office of the librarian of Congress shall be the seal thereof, and by it all records and pajiers issued from the office, and to be used in evidence, shall be authenticated. Sec. 4950. The librarian of Congress shall give a bond, \vi:h sureties, to the Treasurer of the United States, in the sum of five thousand dollars, v.ith the condition that he will render to the proper officers of the Treasury a true account of all moneys received by virtue of his office. Sec. 4951. The librarian of Congress shall make an annual report to Congress of the number and description of copyright publications for which entries have been made during the year. Sec. 4952. Any citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, pri,'-,t, photograph, or negative thereof, or of a painting, drawing, chromo, statue, st?.tuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such person, shall, upon complying with the provisions of this chapter, have the sole liberty of print- ing, reprinting, publishing, completing, copying, executing, finishing, and vending the same ; and, in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others. And authors may reserve the right to dramatize or translate their own works. Sec. 4953. Copyrights shall be granted for the term of twenty-eight }'ears from the time of recording the title thereof, in the inanner hereinafter directed. Sec. 4954. The author, inventor, or designer, if he be still living and a ci:izen of the United States or resident therein, or his widow or children if he be dead, shall have the same exclusive right continued for the further term of fourteen years, upon recording the title of the work or description of the article so secured a second time, and complying with all other regula- tions in regard to original copyrights, within six months before the expiration of the first term. And such person shall, within two months from the date of said renewal, cause a copy of the record thereof to be pubhshed in one or more newspapers, printed in the United States, for the space of four weeks. THE LAW OF COPYRIGHT. 697 Sec. 4955. Copyrights shall be assignable in law by any instrument of writing, and such assignment shall be recorded in the office of the librarian of Congress within sixty days after its execution; in default of which it shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice. Sec. 4956. No person shall be entitled to a copyright unless he shall, before publication, deliver at the office of the librari.in of Congress, or deposit in the mail addressed to the librarian of Congress, at Washington, District of Columbia, a printed copy of the title of the book or other article, or a description of the painting, drawing, chrorao, statue, statuary, or model or design for a work of the fine arts, for which he desires a copyright ; nor unless he shall also, within ten diays from the publication thereof, deliver at the office of the librarian of Congress, or deposit in the mail addressed to the librarian of Coi:^ress, at Washington, District of Columbia, two copies of such copyright book or other article, or, in case of a painting, drawing, statue, statuary, model or design for a worlc of the fine arts, a photograph of the same. Sec. 4957. The librarian of Congress shall record the name of such copyright book, or other article, forthwith in a book to be kej)t for that purpose, in the words following: "Library of Congress, to wit: Be it remembered that on the ■ day of , , A. B., of , hath deposi- ted in this office the title of a book, (map, chart, or otherwise, as the case may be, or description of the article,) the title or description of which is in the following words, to wit: (here insert the title or description,) the right whereof he claims as author, (originator, or proprietor, as the case may be,) in conformity with the laws of the United States respecting copyrights. C. D., Librarian of Congress." And he shall give a copy of the title or description, under the seal of the librarian of Congress, to the proprietor whenever he shall require it. Sec. 4958. The librarian of Congress shall receive from the persons to whom the services designated are rendered, the followingfees : I. Forrecord- ing the title or description of any copyright book or other article, fifty cents. 2. For every copy under seal of such record actually given to the person claiming the copyright, or his assigns, fifty cents. 3. For recording and certifying any instrument of writing for the assignment of a copyright, one dollar. 4. For every copy of an assignment, one dollar. All fees so received shall be paid into the treasury of the United States. Sec. 4959. The proprietor of every copyright book or other article shall deliver at the office of the hbrarian of Congress, or deposit in the mail addressed to the librarian of Congress, at Washington, District of Columbia, within ten days after its publication, two complete printed copies thereof, of the best edition issued, or description or photograph of such article as here- inbefore required, and a copy of every subsequent edition wherein any substantial changes shall be made. Sec. 4960. For every failure on the part of the proprietor of any copy- ggS THE LA W OF COPYRIGHT. right to deliver, or deposit in tlie mail, eitlier of the published copies, or description, or photograph, required by Sections 4956 and 4959, the pro- prietor of the copyright shall be liable to a penalty of twenty-five dollars, to be recovered by the librarian of Congress, in the name of the United States, in an ac'.ion in the nature of an action of debt, in any district court of the United Slates within the jurisdiction of which the delinquent may reside or be found. Sec. 4961. The postmaster to whom such copyright book, title, or other article is delivered, shall, if requested, give a receipt therefor; and when so delivered he shall mail it to its destination. Sec. 4963. No person shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies cf every edition published, on the title-page or the page immediately following, if it be a book ; or if a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or model or design intended to be perfected and completed as a work of the fine arts, by inscribing upon some visible portion thereof, or of tlie substance on which the same shall be mounted, the following words, viz. : "Entered according to act of Congress, in the year , by A. B., in the ofiice of the librarian of Congress, at Washington ; " or, at his option, the word "Copyright," together with the year the copyright was entered, and the name of the party by whom it was taken out, thus : " Copyright, 18 — , by A. B." Sec. 4953. Every person who shall insert or impress such notice, or words of the same purport, in or upon any book, map, chart, musical composition, print, cut, engraving, or photograph, or other article, for which he has not obtained a copyright, shall be liable to a penalty of one hundred dollars, recoverable one-half for the person who shall sue for such penalty, and one-half for the use of the United States. Sec. 4964. Every person who, after the recording of the title of any book as provided by this chapter, shall within the term limited, a;:d without the consent of the proprietor of the copyright first obtained in writing, signed in the presence of two or more witnesses, print, publish, or import, or, knowing the same to be so printed, published, or imported, shall sell or expose to sale any copy of such book, shall forfeit every copy thereof to such proprietor, and shall also forfeit and pay such damages as may be recovered in a civil action by such proprietor in any court of competent jurisdiction. Sec. 4965. If any person, after the recording of the title of any map, chart, musical composition, print, cut, engraving, photograph, or chromo, or of the description of any painting, drawing, statue, statuary, or model, or design intended to be perfected and executed as a work of the fine arts, as provided by this chapter, shall, within the term limited, and without the con- sent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, engrave, etch, work, copy, print, pub- THE LAW OF COPYRIGHT. 699 lisli, or import, either in whole or in part, or by varying the main design wiih intent to evade the law, or, knowing ihe same to be so printed, pub- lished, or imported, shall sell or expose to sale any copy of such map or other article, as aforesaid, he shall forfeit to the projjrietor all the plates on which the same shall be copied, and every sheet thereof, either copied or printed, and shall further forfeit one dollar for every sheet of the samfe found in his possession, either printing, printed, copied, published, imported, or exposed for sale ; and in case of a painting, statue, or statuary, he shall forfeit ten dollars for every copy of the same in his possession, or by him sold or exposed for sale ; one-half thereof to the proprietor and the other half to the use of the United States. Sec. 4966. Any person publicly performing or representing any dramatic composition for which a copyright has been obtained, without the consent of the proprietor thereof, or his heirs or assigns, shall be liable for damages therefor ; such damages in all cases to be assessed at such sum, not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court shall appear to be just. Sec. 4967. Every person who shall print or publish any manuscript whatever, without the consent of the author or proprietor first obtained, (if such author or proprietor is a citizen of the United States, or resident therein,) shall be liable to the author or proprietor for all damages occasioned by such injury. Sec. 4968. No action shall be maintained in any case of forfeiture or penalty under the copyright laws, unless the same is commenced within two years after the cause of action has arisen. Sec. 4969. In all actions arising under the laws respecting copyrights the defendant may plead the general issue, and give the special matter in evidence. Sec. 4970; The circuit courts, and district courts having the jurisdic- tion of circuit courts, shall have power, upon bill in equity, filed by any party aggrieved, to grant injunctions to prevent the violation of any right secured by the laws respecting copyrights, according to the course and principles of courts of equity, on such terms as the court may deem reason- able. Sec. 4971. Nothing in this chapter shall be construed to prohibit thfe printing, publishing, importation, or sale of ahy book, map, chart, dramatic or musical composition, print, cut, engraving, or photograph, written, com- posed, or made by any person not a citizen of the United States nor resident therein. Sec. — . [Approved June 18, 1874, to take effect August I, 1874.] That in the construction of this act, the words "engraving," "cut," and "print," shall be applied only to pictorial illustrations or works connected with the fine arts, and no prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but may be regis- tered in the Patent Office. And the Commissioner of Patents is hereby 700 THE LAW OF COPYRIGHT. charged with the supervision and control of the entry or registry of such prints or labels, in conformity with the regulations provided by law as to copyright of prints, except that there shall be paid for recording the title of any print or label, not a trade-mark, six dollars, which shall cover the expense of furnishing a copy of the record, under the seal of the Commissioner of Patents, to the party entering the same. CANADA. The Copyright Law of the Dominion of Canada closely resembles that of the United States. It is substantially the same in its purposes, and in the means by which it seeks to accomplish these purposes. The duration of the right, with its conditional extension, is the same as in the law of the United States. A copyright may be taken out by " any person resident in Canada, or any person being a British subject, and resident in Great Britain or Ireland." The book must be printed and pub- lished in Canada. I subjoin two forms of agreement between authors holding copyrights, with publishers, for the publication of the book. Every such agreement must express the particular terms of that bargain ; but the following may serve as general guides. I add a form of assignment of copyright : (260.) Agreement between Author and Publisher.— Short Form, This Agreement, Made tliis day of in the year l8 by and between {name of author) and {name of publisher) Viitnesseth as follows : The said {name of author) being now preparing a work, to be called {or on the subject of ) to be in volume hereby agrees and promises to complete the same for the press as rapidly as prac- ticable, and to sell to the same {name of the publisher) for the sum of dollars, to be paid as hereinafter mentioned, the exclusive right of printing, publishing, and selling the first edition thereof, to consist of copies. The copyright of said work to be secured and retained by said {name of author) as author and proprietor. And the said {name of publisher) hereby agrees and promises to publish said edition of copies, and to pay to said {name of atUlior) the said sum of dollars, by their promissory, negotiable notes, pay- able at average credit of months from the day of publication of A GREEMENT BE TWEEN A UTHOR AND P UB USHERS. 70 1 said edition ; and also to give him copies of said work, for pi sentation. Witness our liands, in duplicate, this day of {Signature of aiiiho?:) {Signature of publisher.) (261.) Agreement between Anther and Publishers.— Fuller Form, Articles of Agreement, Made this day of A.D. 18 by and between of the first part, and of State of booksellers and publishers, of the sec- ond part, witnesselh, That the said {name of the author) in consideration of the agreements of the said {name of publishers) hereinafter contained, hereby agrees with them and their representatives and assigns that he will deliver to them on or before the day of A.D. iS the manuscript of a book now in course of preparation by him, to be entitled said manuscript to be properly prepared for the press, and to be sufficient in amount for volume of not less than pages, similar to those of that he will secure in his own name a good and valid copyright thereof for the United States, and any renewals or extensions of such copyright to which he may hereafter be entitled, and will defend the same from all infringements and adverse claims, and will save the said and their representatives and assigns, harmless and indemnified from all such infringements and claims, and from all damage, costs, and expenses arising to them by reason thereof ; that he will license and allow the said and their representatives and assigns, but no other party or parties, to print, publish, and sell the aforesaid book, and any revisions of the same, during the continuance of any copyrights or renewals thereof which he may obtain therefor; provided, however, that the said and their representatives and assigns shall in substantial good faith keep and perform their agreements hereinafter contained ; and that dur- ing the continuance of the exclusive rights hereby granted, he will revise said book as occasion may require, and will with all reasonable diligence and speed superintend in the usual manner of authors the printing of all editions thereof ; and will not prepare, edit, or cause to be published, in his name or otherwise, anything which may injure or interfere with the sale of the afore- said book. And the said {name of the publishers) in consideration of the foregoing agreements of the said author of the aforesaid book, hereby agree on their part that they will, upon the delivery to them of the manuscript thereof as aforesaid, proceed at c nee to print and publish an edition of said book, of at least copies, of which they will deliver to the said author for his own use without charge ; that they will subsequently, from time to time, during the continuance of their enjoyment of the exclusive rights herein granted them, print and publish such other editions of said 702 THE LAW OF COPYRIGHT. book as the demand for the same may require, copies of each of which they will dehver to said author for his own use without charge; that they will use their best exertions to secure the speedy sale of all such editions published by them as aforesaid; and that, upon the publication of each and every edition of said book, they will pay unto the said author, or his representatives or assigns, a sum equal to upon each and every copy of which said edition shall consist (excepting, however, said copies to be given to said author as aforesaid, and such other copies as may be used for presentation to editors and others for the purpose of obtaining reviews and notices, or otherwise to promote the sale of said book), which said sum shall be paid as follows (state the manner atid times of payment, as by cash or notes) but from any sum so to be paid as aforesaid shall first be deducted the cost of any alterations or corrections, exceeding ten per cent, of the cost of first setting up the type, made by the said author in said book after the portion altered or corrected is in type. In Witness "Wliereof, The said parties have hereto, and to another instru ment of like tenor, set their hands the daj- and year first above written. {Signature of aiithor.) {Signature of publishersi) ( Witnesses.) (262.) An Assignment of a Copp-ight. To all whom it may Concern : Whereas I, {name of assignor) of in the County of and State of did obtain a copy- right from the United States for a work entitled and the certificate of said copyright bears date A.D. eighteen hundred and Now tliis Deed Witnesseth, That for a valuable consideration, viz. : to me in hand paid, the receipt of which is hereby acknowl- edged, I have assigned, sold, and set over, and by these presents do assign, sell, and set over unto the said {name of assignee) all the right, title, and interest I have in the above book {or design, etc. ) as secured to me by said copyright. The same to be held and enjoyed by the said {name of assignee) for his own use and behoof, and for the use and behoof of his legal representatives, to the full end of the term for which said copyright was issued, as fully and entirely as the same would have been held and enjoyed by me had this assignment and sale not been made. In Testimony "Whereof, I have hereunto set my hand and aflfixed my seal, this day of in the year of our Lord one thousand eight hundred and (Signature) {Seal.) Sealed and Delivered in Presence of RECOVERY AND COLLECTION OF DEBTS. 703 CHAPTER XXXV. MEANS PROVIDED FOR THE RECOVERY AND COLLECTION OF DEBTS. 1. Arrest and Imprisonment. — In many States, no person can be arrested or imprisoned for debt. In California no female, and in Louisiana no female, and no person who has not a domicil in the State, and in Ohio no female, nor any officer or soldier of the Revolutionary army, can be arrested or impris- oned for debt. In all the States, the intention of the law is to lirtiit imprisonment to those cases in which either fraud was committed in the contraction of the debt, or the debtor intends to abscond out of the reach of process. The provisions to effect this are very various. Generally, the plaintiff must file in the clerk's office, or indorse upon the writ, an affidavit of the facts on which he grounds the right of arrest. In some of the States, provision is made for the imprisonment on execution of a debtor who can be found to possess, and refuses to surrender, property or interest, real or personal, which might be made available for the payment of his debts. 2. The Trustee Process. — The trustee process, or garnishee process, or process of foreign attachment, — by all which names it is known, — is now nearly or quite universal. It is substan- tially this : A owes B a debt ; but A has no property in his hands or possession which B can get at ; but A has deposited in the hands of C, goods, or property, or credits of some kind, or A has a valid claim against C for services rendered, or money loaned, or goods sold, or something else ; and this B gets by suing A, not with a common writ, but with a trustee writ, so called, in which he declares that C is the trustee of A, for prop- erty, etc. ; and on this writ, if B recovers payment against A, he will have an execution against all A's property in the hands of C, and all A's valid demands against C. But C, when noti- fied, may come into court, and, in answer to all questions put to him, declare that he (C) has no property in his hands belong- ing to A, and that he does not owe A anything. And then the plairftiff may shape the questions as he pleases, to draw out the truth. 45 704 RECOVERY AND COLLECTION OF DEBTS. No one is adjudged trustee, or made to pay to the creditor the debt due to the debtor, if he has given a negotiable note for it, because he might have to pay it again to an honest indorsee. Nor if the debt is not certainly due ; nor, generally, if it is due from the trustee in any official capacity, which will require him to account over for the money in his hands ; nor if the debtor has recovered a judgment against the trustee, on which execu- tion may issue. The laws of the British Provinces for the collection of debts are similar in substance and purpose to those of the United States, with similar provisions against abuse or oppression. 3. The Homestead. — In most of the States, a Jiomestead is protected from creditors, and exempted from all attachment or execution, excepting in sogie States for taxes, or wages of labor to a certain amount. In the Abstract of the Law of Husband and Wife, already given on pages 40 to 59, a brief statement of the quantities and values of the homesteads exempted from sale on execution in the several States, is also given. This is stated in that connection, because the principal purpose of these homestead exemptions seems to be the protection of the wife and family. Various provisions are made in each of these States to com- bine a due protection of the creditor with proper prevention of fraud. The most common means are by requiring that " the homestead" should be distinctly defined and set apart, and in many cases by the additional requirement, that the description and location of it should be put on public record. In all the States there are also exemption laws. These pro- vide very generally that bed and bedding and other necessary furniture, needful clothing, a Bible and school-books, and a cer- tain amount of food and fuel, shall not be taken on attachment or execution. In some States, the tools of a trade, the uniform, arms, and equipments of soldiers or ofificers in the militia, the family burying-vault and gravestones, a team or yoke of oxen, bees with their hives and honey, a boat for fishing, etc., are exempted. These statutes often enumerate the articles ex- empted quite minutely, and then add, that necessary articles to a certain amount of value, usually one or two hundred dollars, are also exempted. ABSTRACT OF THE COLLECTION OF DEBTS. 70s We give annexed to this chapter an Abstract of the Laws of all the States relating to the collection of debts. ABSTRACT OF LAWS RELATING TO THE COLLEC- TION OF DEBTS, INCLUDING ACTIONS, ATTACHMENT, ARREST, GARNISH- MENT, JUDGMENT, EXEMPTIONS, AND HOMESTEAD. ALABAMA. — Actions. Civil actions are begun by service of sum- mons, issued by tlie clerk of court, and accompanied by the complaint of the plaintiff. All actions on contracts for the payment of money may be joined in one. Attachment may be levied on any real estate, or personal property, or by garnishment. It may issue, (i) to enforce the collection of any debt, (2), for any money demand, (3) to recover damages for the breach of any contract, or, (4) when the action sounds in damages merely; and also on affidavit by the plaintiff that the defendant resides out of the State, or has absconded, or has secreted himself, or is about to remove, or has, or is about to dispose of his property fraudulently. Arrest is not allowed under the constitution. Garnishment. The judgment creditor in any action may obtain a pro- cess of garnishment against any person supposed to be indebted to the defendant, and any one may obtain such process when a summons and com- plaint have issued in any case. Judgment is' not a lien. Stay Law. Defendant may at any time before execution is issued, stay the issue thereof thirty days, if the judgment be less than twenty dollars, or sixty days if over twenty dollars, by giving a bond with surety in double the amount of the judgment. Exemptions. Personal property, to be selected by the debtor, to the value of one thousand dollars, is exempt from sale on execution, or other process of court, also the homestead of the debtor not exceeding one hun- dred and sixty acres, not in any city, town, or village, or, in lieu thereof, any lot in any city, town, or village, not exceeding two thousand dollars in value. Also are exempt, lots in cemeteries, pew or seat in church, proper wearing apparel, family portraits, books used in the family, and the wages or sala- ries of laborers or employees, for personal service, not exceeding twenty-five dollars per month. AKKANSAS. — Actions. Forms of actions existing before the adop- tion of the code are abolished, and there is now one form of action for private rights, called a civil action. The civil action is begun by filing with the clerk of the court a complaint, and causing a summons to issue thereon. Several causes of action may be joined in the same complaint. Attachment. The plaintiff may have an attachment for the recovery 7o6 ABSTRACT OF THE COLLECTION OF DEBTS. of money, including damages, when the defendant is a non-resident of the State ; or has been absent four months ; or has departed with intent to defraud his creditors, or conceals himself, or his property. An order of attachment is made by the clerk of the court, on the filing by the plaintiff of an affidavit showings the nature and amount of the plaintiff's claim, that it is just, and the existence of one of the grounds of attachment above men- tioned. Arrest. The defendant in a civil action may be arrested on filirg by the plaintiff with the clerk of the court, of an affidavit showing the nature of the claim, and charging the defendant with fraud in contracting the debt, that it is a just claim, and the amount expected to be recovered, and that the affiant believes that the defendant is about to depart from the State, and has concealed his properly with intent to defraud his creditors, or that he has property and is about to depart from the State without leaving enough to satisfy the plaintiff's claim. Garxishment. Process of garnishment may issue whenever the plain- tiff believes that any person is indebted to the defendant, or has in his hands or possession, goods and chattels, moneys, credits, or effects belonging to the defendant. Judgment is a lien on the real estate of the defendant, lying in the county for which the court is held, and the lien continues for three years. Stay Law. Execution maybe stayed three months, when the judgment is a decree for money, by giving a bond with good surety. Exemptions. Personal property to the value of \xio thousand dollars to be selected by the debtor. The homestead of a married man, or one who is the head of a family, not exceeding one hundred and sixty acres, and not in any town, city, or village, or in lieu thereof, any lot in a town, city, or village, owned and occupied by the defendant, not exceeding five thousand dollars in value. CALIFORNIA.— Actions. There is only one form of action for private remedies, which is commenced by filing a complaint, and issuing a summons thereon, directed to the defendant. Attachment. A writ of attachment may issue, in actions on contracts for the direct payment of money not secured by mortgage or otherwise, and in actions of contract against a defendant residing out of the State, on filing with the clerk of the court an affidavit that the defendant is indebted to the plaintiff, stating the amount due, and that the defendant is a non-resident, and also that the sum due is an actual bona fide debt. Arrest. The defendant may be arrested in an action for the recovery of money or damages, when he is about to leave the State with intent to defraud the creditors, or, in an action to recover possession of personal prop- erty, when the property has been fraudulently concealed, and cannot be found, or, when the defendant was guilty of fraud in contracting the debt, or in concealing the property for the recovery of which the action is brought, or, where the defendant has removed or disposed of his property with intent ABSTRACT OF THE COLLECTION OF DEBTS. "jq-j to defraud his creditors. The order for arrest is obtained from a judge of a the court, on affidavit of one or more of the above causes. No female can be arrested in any civil action. Garnishment. Debts due the defendant, and credits or personal property of the defendant in the hands of a third party may be attached by leaving a copy of the writ, and a notice that the debts, credits, or personal property are attached. Judgment is a lien on real property of the debtor, not exempt from being taken on execution, which is situated in the county where the action was brought, and becomes a lien on real estate in other counties by filing a trans- cript of such judgment in the several counties. The lien continues for two years, unless the judgment is satisfied. Stay Law. The power of staying execution is discretionary with the court on appeal. Exemptions. Chairs, tables, desks, and books to the value of two hun- dred dollars ; necessary household furniture, including one sewing-machine, and one piano in actual use, or belonging to a woman ; stoves, stove-pipe, and utensils, wearing apparel, beds, bedding, and bedsteads, provisions actually provided for one month, farm utensils, two oxen or two horses or two mules and harness, one cart or wagon, and food for said animals for one month, seed, grain, or vegetables for sowing, not exceeding in value two hun- dred dollars. Tools of mechanics or artisans ; the records and seal of a notary public ; the instruments of surgeons, dentists, and other professional men; the law libraries and office furniture of lawyers, and the libraries of ministers. The cabin of a miner, not exceeding five hundred dollars in value, with all the implements and gear necessary for his business, with two horses, mules, or oxen, and harness, and food for the same for one month. Two oxen, mules, or horses and harness, with food for the same for one month, and the cart or other vehicle by which carters, hackmen, peddlers, etc., hab- itually earn their living, one horse, vehicle, and harness used by physicians or minister, in making professional visits ; the earnings of the judgment debtor for personal services rendered within thirty days next preceding the levy, when it appears by affidavit that such earnings are necessary for family support ; also a homestead, consisting of the land on which the debtor resides, to be selected by him, to the value of five thousand dollars, if the head of a family, or one thousand dollars of any other person. COLORADO. — Actions. There is only one form of action in civil cases, and actions are begun by filing with the clerk of the court a written complaint. Attachment. Writ of attachment may issue on filing with the clerk of the court an affidavit, signed by the plaintiff or on his behalf, setting forth that the defendant is indebted to the plaintiff in a sum exceeding twenty dol- lars, and stating the nature and amount of the claim, as near as may be, and that such debtor has departed, or is about to depart, from the State, with the intention of having his effects removed, or is about to remove his property from the State to the injury of the plaintiff, or that the debtor conceals him- 708 ABSTRACT OF THE COLLECTION OF DEBTS. self, or stands in defiance of the officer, so tliat process cannot be served on him, or that he is a non-resi;'.ent of the State, or that he is disposing of his property with intent to defraud liis creditors, or that he fraudulently con- tracted the debt or incurre.l the ob'.igation for which the suit is brought, or that he has fraudulently conveyed any of his estate with the intent to delay, hinder, or defraud his creditors. Arrest. No person can be arrested on mesne process, and only on exe- cution, when it is on an action of t?rt in which the finding shall be for the plaintiff, and shall slate that the defendant was guilty of malice, fraud, or wilful deceit in committing the tort, and in this case he may be imprisoned for one year, or until the judgment is paiJ. Gai;n:shmext. If the sheriff cannot find any property of the defendant, or sul'ficient to sati.=.fy the attachment, he may summon any persons named in the writ, who are indebted to, or have goods, effects, or credits of the defend- ant in their hands. Judgment becomes a lien on the real estate cf the defendant in any county by filing in such counly an abstract of the judgment, and continues as such for six years, but execution must issue within one year. Stay Law. There is no stay law in Colorado. Exemptions. The following property is exempt : i. The pictures, school- books, and library of the debtor. 2. A seat or pew in church. 3. One burial lot. 4. Necessary wearing apparel of the family. 5. Provisions for the debtor and his family f jr six months, eilher provided, or growing, or both, and fuel for six months. 6. The tools, implements, or stock-in-trade of a mechanic, miner, or other person, used and kept for the purpose of trade, not exceeding in value two hundred dollars. 7. The library and implements of prcfessional men. 8. Working animals to the value of two hundred dollars. 9. One cow and calf, ten sheep, and the necessary food for the same for six months, pro- vided, or growing, or both, also one farm wagon, one plow, harrow, and other farm implements, including harness and tackle for the team not exceeding fifty dollars. Every householder, the head of a family, is entitled to a home- stead of a farm, or lot or lots, in a city or town to the value of two thousand dollars. CONNECTICUT.— Actions are begun by citation in which, if the action is brought for the recovery of a money demand, may be inserted a direction for attachment ; the process to be signed by the Governor, Lieutenant-Gov- ernor, a senator, a justice of the peace, commissioner of the superior court, or judge or clerk of the court to which it is returnable, and when so signed, may run into any county. Attachment may be granted against the estate of the defendant bcth real and personal, or, in actions of law, against his person, when not exempt from imprisonment on execution in the suit. Arrest. — See AttacJimeni. The defendant may be arrested on mesne process, and on execution, in which cases he may be admitted to bail, or he may be released on taking an oath that he has not property to the amount o£ seventeen dollars, not exempt from being taken. ABSTRACT OF THE COLLECTION OF DEBTS. 709 Garnishment. When no property of the defendant can be found, or where a debt is due to the defendant from a third parly, such third party hav- ing property of defendant, or owing him money, may be summoned in on for- eign attachment. The wages of the debtor for personal service, not exceed- ing ten dollars, or if he has a wife or family, twenty-five dollars, are exempt from foreign attachment. Judgment is not a lien on lands, and bears interest at the legal rate of seven per cent. Stay Law. There is no stay of execution in Connecticut. Exemptions. The necessary apparel and bedding, household furniture necessary for supporting life (which clause is construed liberally). The arms, military equipments, uniforms, or musical instruments owned by members of the militia, pension money received from the United States, implements of the debtor's trade, library not exceeding in value five hundred dollars, one cow not exceeding one hundred and fifty dollars in value, sheep not exceed- ing ten, or fifty dollars in value, two swine, and two hundred pounds of pork. Of the property of any one having a family, twenty-five bushels of charcoal, and two tons of other coal, two hundred pounds of wheat flour, and two cords of wood, two tons of hay, two hundred pounds of beef and fish each, five bushels each of potatoes and turnips, ten bushels each of Indian corn and rye, or the meal and flour therefrom, twenty pounds each of wool and flax, or the yarn and cloth therefrom, one stove and pipe, the horse of a practising physic an not exceeding two hundred dollars in value, and a saddle, bridle, harness, and buggy, oyster-boat or shad-boat, and the rigging thereto not exceeding in value two hundred dollars, one sewing-machine, one pew, and lots in a burying-ground. There is no homestead exemption. DELAWARE. — Actions are begun by a writ of capias and summons when the defendant is not arrested. Arrest. — The defendant may be arrested on mesne process or on exe- cution, and maybe admitted to bail. A non-resident plaintiff cannot arrest a non-resident defendant on mesne process for any debt contracted outside the limits of the State. Attachment. — Writ of domestic attachment may issue after return by the officer showing that the defendant cannot be found, and proof of the cause of action, or on affidavit filed with the prothonotary that the defendant is justly indebted to the plaintiff in a sum exceeding fifty dollars, and has absconded from his usual place of abode, or gone out of the State with intent to defraud his creditors or to elude process, as it is believed. A WRIT OF FOREIGN ATTACHMENT may issuc against a person not an inhabitant of the State after a return as above, or an affidavit that the defend- ant resides out of the State, and is justly indebted to the plaintiff in a sum exceeding fifty dollars. Garnishment. — The property, rights, or credits of the defendant in the hands of a third party may be attached, the officer giving notice to such third 7IO ABSTRACT OF THE COLLECTION OF DEBTS. party that he atiaches such property, rights, or credits for the benefit of all the defendant's creditors. Judgment is a lien on real estate only from the time of actually entering it or signing it, ana rr^cution after being taken out, continues a lien for three years from the time of levy. Stay- Law. — Execution may be stayed six months on giving good security. Exemptions. — The necessary wearing apparel of the debtor, his wife and children, one bedstead, bed and bedding for every two persons in the family, one iron stove for warming the dwelling-house, and fuel not exceed- ing in valuey?7/f dollars, the Bibles and school books used in the family, one cow, one swine, and one ton of hay, the Mbrary, tools or implements of the debtor necessary for carrying on his profession or trade, not exceeding fifty dollars in value, rights of burial, other household furniture necessary for the debtor and his family not exceeding twenty-five dollars in value ; Provided, that the value of all the articles does not exceed one hundred dollars ; and provided that if the debtor has not all or any of the articles named, then other property to the value of one hundred dollars may be exempt. There is no homestead exemption. FLORIDA. — Actions. — There is only one form of action, which is begun by the service of a summons subscribed by the plaintiff and directed to the defendant. Arrest is not allowed except in case of fraud. Attacii.ment may issue on the affidavit in writing before a justice ot the peace or clerk of the circuit court, that the amount demanded is actually due, and that the plaintiff has reason to beUeve that the defendant \\\\\ part with his property fraudulently before judgment, or is actually moving his property out of the State, or is about to do so, or resides out of the State, or is removing or conceals himself or his property, or is fraudulently disposing of the same. GARNiSHJtENT. — A Writ of garnishment may issue on all judgments or decrees rendered whether execution issued on such judgment be returned or not, provided an affidavit on behalf of the plaintiff be filed stating that he does not believe that the defendant has property in his possession on which levy can be made sufficient to satisfy the judgment. Judgment is a lien on real estate, and becomes so in any county by recording it in such county before the alienation of the property. It is binding from the date when it was rendered, and continues for ten years. Stay-Law. — There is no stay of execution in Florida. Exemptions. — A homestead of one hundred and sixty acres, or one-half an acre in an incorporated city or town, together with one thousand dollars' worth of personal property, to be selected by the debtor. GEOEGIA.— Actions. — All distinctions between real, personal, and mixed actions are abolished. Arrest for debt is abolished. ABSTRA CT OF THE COLLECTION OF DEBTS. 7 1 1 Attachments may issue, i. When the debtor resides out of the State. 2. When he is actually removing oris about to remove without the limits of the county. 3. When he absconds. 4. When he conceals himself. 5. When he resists legal arrest. 6. When he is causing his property to be removed beyond the limits of the State, on the affidavit by a judge of the superior court, or county court, a justice of the peace, or a notary public, setting forth one of the above causes, and the amount of the debt claimed. Plaintiff must give a bond to the defendant to prosecute his suit, and the defendant may dissolve the attachment by giving bond. Garnishment may issue in all cases where an attachment issues, by a summons directed to any person who has the property or effects of the de- fendant in his hands, or who is indebted to him. JubGMENT is a lien on all property, real or personal, except promissory notes and choses in action. Judgments draw interest provided the original claim would do so. The judgment lien continues for four years on real property, and two years on personal property sold to a bond fide purchaser for a valuable consideration. Stay-Law. — If the debtor gives a bond witli good security, execution may be stayed sixty days. Exemptions. — Fifty acres of land and five acres additional for every child under sixteen years, including the dv^elling-house, if such house and improvements do not exceed in value two hundred dollars, such homestead not to be in any city, town, or village ; or in lieu thereof, real estate in a city, town, or village, not exceeding five hundred dollars in value, one farm horse or mule, one cow and calf, ten head of hogs, and fifty dollars' worth of pro- visions, and five dollars' worth additional for every child, beds, bedding, and common bedsteads sufficient for the family, one loom, one spinning-wheel, and two pairs of cards and one hundred pounds of lint cotton, common tools of trade of the debtor and his wife, equipments and arms of a militia soldier, and a trooper's horse, ordinary cooking utensils and table crockery, wearing apparel of the debtor and his family, family Bible, religious works, and school- books, family portraits, library of a professional man in actual practice not exceeding in value three hundred dollars, to be selected by the debtor. ILIjINOIS. — Actions are begun by a summons issued under the seal of the court ten days at least before the return of the writ. Attachment. — The creditor may have an attachment against the prop- erty of the defendant when the debt exceeds iwetify dollars, i. Where the debtor is a non-resident. 2. Where the debtor conceals himself, or stands in defiance of the officer so that process cannot be served. 3 and 4. Where the debtor has departed, or is about to depart from the State with the intent to have his effects removed from the State. 5. Where the debtor is about to remove his property from the State. 6, 7, and 8. Where the debtor has fraudulently conveyed, or concealed, or is about so to convey or conceal his property within two years after contracting the debt. 9. Where the debt sued for was fraudulently contracted. The creditor must file an affidavit 712 ABSTRACT OF THE COLLECTION OF DEBTS. with tlie clerk of the court, stating the nature ar.d amount of the in- debtedness, and any one of the preceding causes ; must give a bond to tlie defendant to prosecute his case and to pay costs if not successful. Arrest. — The defendant may be arrested on mesne process or execu- tion from a court of record, in actions of contract and on judgments, on an affidavit setting forth the cause and amount due, and facts showing that the defendant fraudulently contracted the debt ; or, in actions sounding in damages merely, the facts of the case, and that the plaintiff believes that the benefit of the judgment will be lost unless the defendant is required to give bail, or that he has concealed, assigned, or disposed of property with the intent to defraud his creditors. Garnishment. — When the officer is unable to find property of the de- fendant, he may summon any persons designated by the plaintiff, who have property of the defendant, or who owe debts to the defendant, the same as if they were inserted in the writ. He may also summon such persons after judgment and return by the officer of " no property found," on affidavit by the plaintiff. The wages of defendant, who is the head of a family, and residing with the same, to the amount of fifty dollars, are exempt. Judgment is a lien against real estate in the county for seven years, and bears interest at six per cent. There is no priority of judgments ren- dered at the same term of the court. Stay- Law. — There is no stay of execution in Illinois. Exemptions. — A householder, having a family, is entitled to a homestead in a farm or lot of land and the buildings to the value of one thousand dol- lars ; of personal property, the necessary wearing apparel, Bibles, school- books, family pictures, one hundred dollars' worth of other property to be selected by the debtor, and, where the debtor is the head of a family, three hundred dollars' worth of such property. INDIANA. — Actions.— All distinctions of actions are abolished, and there is but one form for law and equity; must be prosecuted in the name of the real party to the suit, and are begun by filing with the clerk a com- plaint and causi.ig a summons to issue thereon. Arrest. — The defendant may be arrested and held to bail at any time before judgment, on an affidavit on behalf of the plaintiff, specifying his right to recover an existing debt or damages, and stating that affiant believes that the defendant is about to leave the State, taking his property with him, with intent to defraud his creditors. Plaintiff must give bond to pay to the defendant all damages if the order be wrongfully obtained. Attachment. — Plaintiff may have a writ of attachment at any time where the action is for the recovery of money, i. Where the defendantis a foreign corporation or a non-resident of the State. 2. Where the defendant, or one of them, is secretly leaving the State, or has left it, with intent to defraud his creditors. 3. So conceals himself that the summons cannot be served upon him. 4. Is removing, or about to remove, his property from the State, not leaving enough to satisfy the plaintiff's claim. 5. Has sold, ABSTRACT OF THE COLLECTION OF DEBTS. 713 conveyed, or otherwise disposed of liis property with intent to defraud or delay his creditors. 6. Is about to do so. On filing with the clerlt an affida- vit showing, I. The nature of his claim. 2. That it is just. 3. The amount, and that he believes he ought to recover the same; and 4, one of the grounds of attachment mentioned above. Garnishment. — If an aiifidavit is filed at anytime statingthat the aifiant has good reason to believe that any one has property of the defendant which cannot be attached, or is indebted to him, the clerk may issue a summons to such person or persons (o appear as garnishee. He may be arrested on affidavit filed, that it is believed that he is about to abscond, with intent to defraud creditors, and that he has property of the defendant. Judgment for the recovery of money or costs is a lien on the real estate and chattels real of the defendant in the county where judgment was ren- dered, for ten years, and becomes such a lien in other counties at the filing therein of a certified copy. Judgments bear interest from the date of sign- ing, at a rate not exceeding six per cent. Exemptions. — An amount of property not exceeding three hundred dol- lars is exempt for any debt growingout of or founded on contract. The debtor may select the property that he wishes to have exempt. There is no home- stead exemption. Stay- Law. — On giving bond with good surety, execution may be stayed as follows : On sums, excluding costs, not exceeding six dollars, thirty days ; on all sums between six and twelve dollars, sixty days ; between twelve and twenty dollars, ninety days ; between twenty and forty dollars, one hundred and twenty days ; between forty and one hundred dollars, one hundred and fifty days ; over one hundred dollars, one hundred and eighty days. IOWA. — Actions. All distinctions of forms are abolished ; they must be prosecuted by and in the name of the real party in interest, except in the case of executors, administrators, guardians, and trustees, and are begun by serving the defendant with a notice that a suit will be brought on or before a certain day. Arrest. No arrest on mesne process. Debtor may be arrested on execution for examination, when satisfactory proof is made that he is about to leave the State, or conceal himself. Attachment. There may be an attachment at any time on a sworn petition, stating, i. That defendant is a foreign corporation ; 2. Non resi- dent. 3. Is about to remove his property from the State. 4. Has disposed of his property with intent to defraud his creditors. 5. Is about to do so. 6. Has absconded. 7. Is about to remove permanently from the county, and has property therein not exempt and that he refuses to pay to the creditor. 8. Is about to remove permanently from the State and refuses to pay the debt. 9. Is about to remove his property out of the county with intent to defraud creditors. 10. Is about to convert his property into money with intent to place it out of reach. 11. Has property concealed. 12. That ■" the debt is for property obtained under false pretences. 714 ABSTRACT OF THE COLLECTION OF VEBTS. Garnishment may issue against any person supposed to have prop' erty of the defendant or to owe him a debt. Judgment is a lien on real estate for ten years, in the county where it was rendered, from the date of such rendition, and in other counties from the date of fihng an attested copy therein ; bears interest at six per cent, unless a different rate was expressed in the contract, in which case it shall bear such rale of interest, not exceeding ten per cent. SlAV Law. On contracts made since September i, 1S73, execution may be stayed by giving bond with good security, as follows : On sums not exceeding one hundred dollars, three months ; on sums exceeding one hundred dollars, six months. On contracts made previous to September I, 1S73, execution is stayed as follows : On sums not exceeding five dollars, one month ; between five and twenty dollars, two months; between twenty and fcrty dollars, three months ; between forty and sixty dollars, four months ; between sixty and one hundred dollars, six months ; between one hundred and one hundred and fifty dollars, nine months ; over one hundred and f.fty dollars, twelve months. All judgments on which execution is stayed, bear interest at ten per cent. Exemptions. To a debtor, resident of the State and head of a family, the wearing apparel for himself and his family and trunks to contain the same, one musket cr rifle and shot gun, private libraries and family Bibles, portraits, pictures, musical instruments, paintings, not kept for sale, seat or pew in church and interest in burying-ground, not exceeding one acre, two cov.-s and calf, one horse, fifty sheep and the wool thereon, six stand of bees, five hogs and all pigs under six months, the necessary food for all animals exempted, for six months, all the flax raised on ground not exceeding one acre and the manufactures therefrom, one bedstead and bedding for every two persons, cloth manufactured by the debt or not exceeding one hundred yards, household and kitchen furniture not exceeding two hundred dollars in value, spinning-wheel and looms, one sewing machine and other instruments of domestic labor kept for actual use, necessary provisions and fuel for six months, tools, instruments, or books of the debtor, if a farmer, mechanic, surveyor, or professional man, horse or team and wagon or other vehicle with the harness and rigging, by the use of which the debtor earns his living, and, if the debtor is a printer, types, furniture, and materials necessary for his business not exceeding twelve hundred dollars in value. The homestead of the debtor is also exempt, embracing the house used by him as a home, and if in a town plat, not exceeding one-half an acre in extent, or not exceeding forty acres if not in any town plat; but in either case it may amount to five hundred dollars in value, though exceeding the above amount. KAWSAG. — Actions are brought in the name of the real party inter- ested, and begun by filing with the clerk a petition, and causing a summons to issue thereon, directed to sheriff. Arrest. Debtor maybe arrested before or after judgment — on filing* ABSTRACT OF THE COLLECTION OF DEBTS. 715 with the clerk an affidavit, stating the nature and amount of the claim, and that it is just, and one of the following rtasons : i. That defendant has or is about to remove his property out of the jurisdiction of the court with intent to defraud creditors. 2. That he has begun to convert his property into money for the purpose of placing it beyond the reach of his creditors. 3. That he has property fraudulently concealed. 4. Tliat he has assigned or disposed of his property, or begun to do so, with intent to defraud his creditors. 5. Tliat he fraudulently contracted the debt. The affidavit must also state the facts claimed to justify the belief in the above causes for arrest. Attachhient. Writ of attachment may issue for one of the following causes : I. That the defendant is a foreign corporation. 2. That he has absconded with intent to defraud creditors. 3. That he has left the county witli intent to avoid service. 4. So conceals himself that summons cannot be served on him. 5. Is about to remove his property with intent to defraud. 6. Is about to convert his jDroperty into money in order to conceal it. 7. Has property concealed. 8. Has assigned or disposed of, or is about to dispose of, property to defraud or delay his creditors. 9. That he fraudu- lently contracted the debt. 10. Where the damages sought to be recovered are for injuries resulting from the commission of a felony or misdemeanor or the seduction of a female. 11. Where the debtor failed to pay the price of any article delivered, when by the contract he was bound to pay for on delivery. An affidavit must be filed stating the nature and amount' of the claim, and that it is a just one, and also one of the above causes. Attach- ment may be dissolved by the defendant by giving bonds. Garnishment issues on filing with the clerk an oath, in writing, of belief that the person or persons named have property of the defendant, or are indebted to him. Judgment is a lien on real estate in the county where it was rendered from the first day of term in which it was so rendered, and in other counties from the filing therein an attested copy of the judgment, and such lien continues for five years ; and it bears interest at the rate of seven per cent, unless there was a special agreement in the contract, in which case it bears interest at such rate, not exceeding twelve per cent. Stay Law. There is no stay of execution in the District Courts except on appeal. In justices' courts stay is granted on filing a bond with good security, as follows : on amounts not exceeding twenty dollars, thirty days ; between twenty and fifty dollars, sixty days ; between fifty and one hundred dollars, ninety days ; over one hundred dollars, one hundred and twenty days. Exemptions. A homestead of one hundred and sixty acres of land with the improvements, or one acre in an incorporated city or town, occupied as the residence of the debtor and his family. Personal property of a debtor who is the head of a family, consisting of i, family Bible, school- >books, and family library ; 2, family pictures, and musical instruments used ; 7i6 ABSTRACT OF THE COLLECTION OF DEBTS. 3, seat or pew in church and lot in burying-ground ; 4, wearing apparel, beds, bedding, and bedsteads used in the family. One cooUing stove and appendages, all other cooking utensils and stoves and appendages necessary for the use of the debtor and his family, one sewing-machine, all spinning- wheels and looms, and all other implements of industry not enumerated, not exceeding in value five hundred dollars ; 5, two cows, ten hogs, one yoke of oxen, one horse or mule, or in lieu of one yoke of oxen and one horse or mule, a span of horses or mules, twenty sheep and the wool of the same ; 6, the necessary food for the support of the stock mentioned, for one year, one wagon, cart, or dray, two plows, one crag, and other farm utensils not exceeding three hundred dollars in value ; 7, grain, meat, and other provisions necessary for one year, and fuel for one year ; 8, necessary tools of mechanic, miner, or other person used for trade or business not exceeding four hundred dollars in value ; 9, library, implements, and office furniture of a professional man. If the debtor is not the head of the family, his wearing apparel, seat or pew in church, and lot in burying-ground, and as above in 8 and 9. The earnings of the debtor for personal service for three months are exempt. EEUTUCICY. — Actions. There is only one form for civil acliors, which are begun by filing with the clerk of the court a petition, and causing a summons to issue thereon. Arrest. The defendant may be arrested and held to bail at any time before judgment, on filing with the clerk an affidavit showing, 1, the nature of the claim ; 2, that it is just ; 3, the amount, and 4, that the affiant believes either that the defendant is about to leave the State, and with intent to defraud his creditors has concealed or disposed of his property, so that there will not be enough left to satisfy the plaintiff's claim, or that the defendant has property, and is about to leave the State, without leaving enough to satisfy the plaintiffs claim. Attachment. Writ of attachment issues against the property of a defendant or garnishee, in an action for the recovery of money, in the follow- ing cases : i. Where the defendant, or one of them, is a foreign corporation, or a non-resident of the State. 2. Or has been absent from the State four months. 3. Has departed from the State with intent to defraud his creditors. 4. Has left his county to avoid service. ;. Conceals himself so that sum- mons cannot be served on him. 6. Is about to move his property from the State, not leaving enough to satisfy the claim or claims. 7. Has sold or disposed of, or suffered to be disposed of his property with intent to defraud or delay his creditors, or 8, Is about to sell or dispose of his property, with such intent. Plaintiff must file an affidavit showing the nature of the claim, that it is just, the amount of the same, and one of the foregoing causes. Garnishment. On return of the execution with return of " no property found," the plaintiff may bring a suit against the defendant for discovery, and bring in any parties indebted to the defendant, or who have property of the defendant, as parties to the suit. ABSTRACT OF THE COLLECTION OF DEBTS. 717 Judgment is not a lien on defendant's property. Stay Law. Wlien tlie execution is not in tlie hands of tlie officer, defendant may replevy the judgment for three months by giving bona witn surety. Exemptions of a householder with a family resident in the State, two work beasts, or one and yoke of oxen, two cows and cilves, five sheep, wearing apparel, and the usual household and kitchen furniture to the value of one hundred dollars. Also on debts and liabilities created after June i, 1866, land and house not exceeding in value one thousand dollars, also, one sewing-machine, one two-horse wagon or cart, with harness and gear, school- books, prayer-book and hymn-book, and a small amount of furniture, and on liabilities created since May i, 1870, the libraries of preachers, lawyers, physicians, and surgeons, to the amount of five hundred dollars in value, and tools ot a mechanic, not exceeding in value one hundred dollars. Also the homestead of the debtor, consisting of land and the buildings thereon, to the value of one thousand dollars. LOUISIANA.— Actions are begun by petition, stating all the facts necessary to the cause and identification of the parties on which a citation issues addressed to the defendant. Arrest. The defendant cannot be arrested to secure payment of a debt, but only to secure his person to answer to the suit. A non-resident cannot be arrested unless it appear on oath that he has absconded from his residence in his own State. Attachment. Writ of attachment issues when the defendant resides out of the State or has left or is about to leave the State permanently ; or when he conceals himself to avoid service of summons ; or when he has assigned or disposed of, or is about to assign or dispose of, his property with intent to defraud his creditors or give an unfair preference ; or when he has converted, o. is about to convert, his property into money, with intent to conceal the same ; or when he is about to remove his property from the State before the debt becomes due. The plaintiff must file a sworn petition, setting forth the facts which render the writ necessary and the nature and amount of the claim. Writs of sequestration and provisional seizure issue in certain cases. Garnishment. In cases of attachment, where the creditor believes that any other parties have property of the defendant, or are indebted to him, he may cite them in as parties. Judgment acts as a mortgage on all real estate of the debtor, from the date of record in the ofiice of the Parish Recorder. It is prescribed, and ceases to be a lien in ten years. There is no stay of execution in Louisiana. Exemptions. One hundred and sixty acres of land with the buildings, occupied by the debtor as a residence and owned by him, when he has a family dependent on hira ; together with a certain amount of stock ; but the property in no case to be worth more than two thousand dollars, and no 7i8 ABSTRACT OF THE COLLECTION OF DEBTS. homestead is allowed i£ the wife, in her own right, owns property to the amount of one thousand dollars. Also are exempt the clothes and linen of debtor or his wife, his beds, bedding, and bedsteads, his arms and military accoutrements, the tools, instruments, books, and sewing-machines necessary for the trade or calling by which the debtor makes a living, cook- ing-stove and utensils, dining-table, dishes, knives, forks, etc., wash-tubs, smoothing-irons and ironing-furnaces, family portraits, belonging to the debtor, and musical instruments in use, and a few other minor articles. MAINE. — Actions are begun by original writ, framed to attach the goods and estate of the debtor, and for want thereof his body, cr by sum- mons with or without an order of attachment, in the county where either party lives, unless it be a real action, when it must be brought where the land lies. Attachment. All property not exempt may be attached, and it con- tinues under lien for thirty days after judgment. Arrest. Defendant m.ay be arrested in an action of tort, and in an action of contract, when the debt is over ten dollars, and the debtor is about to depart permanently from the State, with his property, on affidavit by the creditor or his agent to the above effect, and on execution, when he is com- pelled to disclose his property. Garnishment in this State is called Trustee Process. Personal actions may be begun by such process, when the trustee has any property or effects of the defendant, or is indebted to him, but the wages of the defendant for the month preceding, not exceeding twenty dollars, are exempt. Judgment. There is no lien of judgment, its place being supplied by the lien of attachment. Exemptions. The homestead of a householder to the value of five hundred dollars. Of personal property, the debtor's wearing apparel, neces- sary household furniture not exceeding in value fifty dollars, one bed, bed- stead and bedding for every two persons, family portraits. Bibles and school- books, and a copy of the Statutes, and library not exceeding one hundred and fifty dollars in value, a pew in a meeting-house, and a lot in burying- ground, one cooking-stove, and iron stoves used for heating, charcoal, five tons of anthracite coal, fifty bushels of bituminous coal, twelve cords of wood, ten dollars' worth of lumber, wood, or bark, produce until harvested, one barrel of flour, thirty bushels of corn and grain, potatoes, flax raised on an acre of ground, and articles manufactured therefrom for the family, tools of trade, sewing-machine, one pair of working cattle, or pair of mules, or one or two horses, not exceeding in value three hundred dollars, and hay for the winter, one cow and heifer, ten sheep, and the lambs and wool from them, and hay for the winter ; a plow, cart, harrow and rigging, and one boat of two tons. MAE.YLATJD. — Actions are begun as at common law, and the com- mon law forms of actions j^emain as simplified by the Code of Procedure. ABSTRACT OF THE COLLECTION OF DEBTS. 719 Attachment may issue against the property of the defendant in the hands of any person, where the defendant is a non-resident, or where he absconds, on affidavit before a judge or justice of the peace that the debt is a bond fide one, and that he has absconded, together with the evidences of the debt. It may also issue on an original process based on an account, note, or bond, on an affidavit that the defendant is really indebted, and is about to leave the State, or that he has, or is about to assign or dispose of his prop- erty with the intent to defraud his creditors, or that he fraudulently con- tracted the debt for which the action is brought, or that the defendant has, or is about to, remove his property out of the State with intent to defraud bis creditors. Attachment may issue where two summonses have been returned " non est" on proof by the plaintiff of his claim by affidavit and the production, if any, of written evidence of the debt, also in case of actions for false imprisonment or illegal arrest, for the amount of damages claimed. Wages and salary not due at the time of attachment, cannot be attached, and one hundred dollars is exempt out of what is due. Arrest for debt is abolished. Garnishment may issue against the property of the defendant in the hands of any person, by attachment. {See Attachment.) Judgment is a lien on real estate of defendant acquired after judgment, as well as what was owned by him at the date of rendition, and becomes a lien in other counties by transferring it to such counties ; bears interest at six per cent. Judgments remain a lien for twelve years. Stay Laws. On all judgments rendered the second term after the defendant has been summoned, he is entitled to stay of execution until the first Thursday of the following term. Exemptions. Wearing apparel, books, and tools used for trade or earn- ing a living, and one hundred dollars' worth of other property, selected by the debtor. There is no homestead exemption. MASSACHUSETTS.— Actions are begun by original writ, framed to attach the goods or estate of the defendant, or for want thereof, to take his body, or by summons, with or without an order of attachment, in either case accompanied by a separate summons to be served on the defendant, may be brought in the county where either party lives unless it is to recover real estate, when it must be brought where the land lies. Arrest. Defendant may be arrested on mesne process on the plaintifl making affidavit before the proper officer, — (i) that he has good cause of action, and expects to recover more than twenty dollars, and (2) that the defendant, to the best of his belief, has property not exempt, that he does not intend to apply to the payment of the debt, and (3) that he believes that the defendant intends to leave the State. Or (instead of 2 and 3), that the defend- ant is an attorney at law, and that the debt is for money collected on behalf of the plaintiff, and that the defendant neglects to pay the same. And, in an action of tort, by making affidavit that the plaintiff expects to recover at least one-third the damages named in the writ, and that he believes the defendant 46 720 ABSTRACT OF THE COLLECTION OF DEBTS. is about to remove beyond the jurisdiction of the court. Defendant may be arrested on execution, in an action of tort, without an affidavit, and in an action of contract, where the damages, exclusive of costs, amount to twenty dollars or more, on affidavit (i) that the debtor has property not exempt which he does not intend to apply to the payment of the debt; (2) that since the debt was contracted, or the cause of action accrued, the debtor has fraud- ulently conveyed or concealed his property ; (3) that since the debt was con- tracted, or cause of action accrued, the debtor has lost one hundred dollars or more in illegal gambling ; (4) that since the debt was contracted the debtor has wilfully misspent his property so as to be able to swear that he has no property not exempt ; (5) that the debtor contracted the debt with an inten- tion not to pay it ; (6) that the debtor is an attorney at law, and neglects unreasonably to pay money collected by him for the creditor. Attachment. All goods and estate, real and personal, may be attached without any affidavit, and the attachment continues as a lien for thirty days after judgment. Attachments may be dissolved, by the defendant, by giving bond to pay all damages recovered, with costs. Garnishment same as Trustee Process. All actions except tort for malicious prosecution, libel and slander, and assault and battery, may be begun by trustee process; and any one, including a corporation, who is indebted to the defendant, or who has property of the defendant, may be summoned. Judgment is not a lien, but {see Attachment) bears interest from the date of rendition, at six per cent. There is no stay of execution. Exemptions. The homestead of a householder having a family, to the value of eight hundred dollars in the farm or lot of land and buildings owned and occupied by him as a residence. Necessary wearing apparel for the family, one bedstead and bedding for every two persons, one iron stove used for warming the dwelling-house, and fuel for the same not exceeding twenty dollars in value, other necessary household furniture not exceeding three hundred dollars in value ; Bibles, school-books, and library used by himself or family, not exceeding fifty dollars in value ; one cow, six sheep, one swine, and two tons of hay; tools, implements, and fixtures necessary for business or trade, not exceeding in value one hundred dollars ; materials and stock designed and necessary for his trade or business, not exceeding one hundred dollars in value ; provisions necessary and procured for debtor and his family, not exceeding fifty dollars in value ; one pew in church ; the boats, tackle, and nets of fishermen actually used by them for-their business, to the value of one hundred dollars ; the uniform, arms, and accoutrements of a militia man ; rights of burial and tombs. MICHIGAN.— Actions are begun (i) by original writ, or (2) by fihng in the office of the clerk of the court a declaration, entering a rule requiring the defendant to plead within twenty days after service, and the service of a copy of the declaration and notice of the rule upon the defendant. Arrest. Personal actions on contract may be begun by a writ of capiat ABSTRACT OF THE COLLECTION OF DEBTS. 721 ad respondendum^ only to recover damages for bfeach of promise, or for money collected by a public officer, or for misconduct or neglect in office, or in any professional employment, on an affidavit being attached to the writ on behalf of the plaintiff, stating that he has a good cause of action, and believes that he is entitled to recover more than one hundred dollars. Personal actions may also be begun by capias in cases of claims for damages other than those arising on contract, where an order for bail is indorsed on the writ by a judge of the court from which the process issues, or a circuit court commissioner. Attachment. The creditor may proceed at any time before judgment, by attachment, in the circuit court for the county where either party lives, if the defendant have property therein, subject to attachment, and in case he has not property therein, in the county where the property lies, on filing an affidavit stating the indebtedness, the amount, and that it is due on a contract, together with one of the following causes : i. That the defend- ant has absconded, or is about to abscond, or is concealed, to the injury of his creditors. 2. That defendant has assigned, concealed, or disposed of, or is about to assign or dispose of his property with intent to defraud his cred- itors. 3. That the defendant has or is about to remove his property from the State, with intent to defraud his creditors. 4. That the defendant fraud- ulently contracted the debt. 5. That he is a non-resident, and has been so for three months previous to making the affidavit. 6. That he is a foreign corporation. Attachment is a lien on real estate from the date of depositing a certified copy in the registry of deeds for the county where the land lies. Garnishment. In all actions in justices' courts, circuit courts, or dis- trict court of the upper Peninsula, at the commencement of the suit, or at any time, the plaintiff may have a writ of garnishment on filing with the clerk an affidavit that he believes that any person (naming him) has property, effects, or credits of the defendant, or is indebted to him, and that he is in danger of losing the same, unless garnishment issues. Judgment bears interest at the rate of seven per cent., unless it is on a written instrument embodying a different rate, in which case such rate is followed, not exceeding ten per cent. Judgment becomes a lien on real property from the levy of execution, and from the time of filing a notice of such levy, containing the names of the parties, description, and date of the levy, in the office of the registry of deeds for the county where the land lies. Stay Laws. Defendant may have a stay of execution in justices' courts within five days after the justice is authorized to issue execution, by filing a bond with good surety, as follows : for four months where the execution does not exceed fifty dollars ; and six months where it does exceed fifty dollars. Exemptions, i. Spinning-wheels, weaving-looms, and stoves put up and kept for use. 2. Seat or pew in church. 3. Cemeteries, tombs, and rights of burial while in use. 4. Arms and accoutrements required by law, and all wearing apparel. 5. Library and school-books of each member of the family, not exceeding in value one hundred and fifty dollars, and family 722 ABSTRACT OF THE COLLECTION OF DEBTS. pictures. 6. To every householder, ten sheep and fleeces, or the yarn or cloth from the same, two cows, five swine, and the provisions and fuel for the comfort of the family for six months. 7. To a householder, all house- hold goods, furniture, and utensils, not exceeding in value two hundred and fifty dollars. 8. Tools, implements, materials, stock, apparatus, team, vehicle, horses, harness, or other things which enable a person to carry on the busi- ness in which he is engaged, not exceeding in value two hundred and fifty dollars. 9. Sufficient grain, hay, feed, and roots, whether growing or other- wise, for keeping all animals, exempt for six months. 10. Sewing-machine, also a homestead of forty acres, and the dwelling-house and appurtenances not included in a recorded town plat, city, or village, or instead, one lot in a town plat, city, or village, and the dwelling-house thereon, owned and occu- pied as a residence, not exceeding fifteen hundred dollars in value. MINNESOTA. — Actions. All distinctions are abolished, and there is but one form for all actions, which are begun by summons signed by the plaintiff and directed to the defendant, and must be prosecuted by the real party in interest. Attachments may be had at any time in actions for the recovery of money, and are sued out on affidavit specifying the cause and amount and grounds for the action, and that the defendant is a foreign corporation, or a non-resident, or has departed from the State with intent to defraud or delay creditors, or to avoid the service of the summons, or that defendant keeps himself secreted with like intent, or has assigned, secreted, or disposed of his property, or is about to do so, with intent to defraud his creditors, or that the debt was fraudulently contracted. Arrest for debt is abolished. Garnishment is allowed in actions on contracts, on filing an affidavit at any time before or after judgment, stating that it is believed that any person (naming him) has property of the defendant, or is indebted to him in a sum exceeding twenty-five dollars. Judgment is a lien, in the county where the cause was tried, from dock- eting the same, and in other counties from the date of filing a transcript in the office of the District Court, and continues a lien for ten years. Stay Laws. Stay of execution may be had in justices' courts, as fol- lows : On sums not exceeding ten dollars, one month ; not exceeding twenty- five dollars, two months ; between twenty-five and fifty dollars, three months ; between fifty and seventy-five dollars, four months ; and over seventy-five dollars, six months. Debtor must file a bond, with good surety, within ten days after judgment is rendered. Exemptions, i. Family Bible. 2. Family pictures, school-books, or library, and musical instruments in use. 3. Seat or pew in church. 4. Lot in burying-ground. 5. Wearing apparel, beds, bedsteads, and bedding kept and used in the family, stoves and apparatus put up or kept for use, and cooking utensils, and all other household furniture not enumerated, and not exceeding -five hundred dollars in value. 6. Three cows, ten swine, one ABSTRACT OF THE COLLECTION OF DEBTS. 723 yoke of oxen, and one horse, or in lieu of oxen and horse, a span of horses or mules twenty sheep and tlie wool therefrom, either raw or manufactured, food for the stock for one year, either provided or growing, or both, one wagon, cart, or dray, one sleigh, two plows, one dray, and other farm utensils, not exceeding three hundred dollars in value. 7. Provisions and fuel for debtor and his family for one year. 8. Tools and instruments of mechanic, miner, or other person, and kept for trade, and in addition, stock-in-trade, not exceeding four hundred dollars in value, and library and implements of a professional man. Also a homestead of eighty acres, and the dwelling- house and appurtenances, not in an incorporated city, town, or village, or in lieu thereof, one lot in an incorporated city, town, or village, with the house thereon. MISSISSIPPI. — Actions are begun by a summons, and the forms of actions, and modes of proceeding are as at common law. Attachment. Remedy by attachment applies to all liquidated debts, and to all claims for damages for breach of contract, and issues on an affi- davit filed by the creditor or his agent, stating the nature and amount of the claim, and one or more of the following causes : I. That defendant is a for- eign corporation, or a non-resident. 2. That he has removed, or is about to remove, himself or property out of the State. 3. Or so absconds or conceals himself that service cannot be made on him. 4. Or that he has property which he conceals, and refuses to apply to the payment of his debts. 5. Or that he has assigned or disposed of, or is about to assign or dispose of, his property with intent to defraud creditors, or to give a preference. 6. Or that he has or is about to convert his property into money in order to place it beyond the reach of his creditors. 7. Or that he fraudulently contracted the debt. Arrest. There is no arrest for debt. Garnishment. The writ of attachment may be levied on all property of the defendant wherever it is found, and if any third person has any prop- erty, effects, or credits of the defendant, or is indebted to him, he may be summoned as garnishee. Judgment bears interest at six per cent., unless there was a stipulation in the contract for a different rate, in which case such rate, not exceeding ten per cent., is allowed. Judgment is a lien on all property in the county where rendered, from the date of rendition, if enrolled, and in other counties from the date of filing an abstract in the office of the clerk of the court for such county. The time of limitation for judgments is seven years. Stay Laws. Stay of execution is allowed in justices' courts on giving bond with surety as follows: On sums not exceeding fifty dollars, thirty days ; on sums over fifty dollars, sixty days. Exemptions, i. Tools of a mechanic necessary for his trade. 2. Ag- ricultural implements of a farmer necessary for two male laborers. 3. Implements of a laborer necessary for his usual employment. 4. Books of student for educational purposes. 5. Wearing apparel. 6. Library of an 724 ABSTRACT OF THE COLLECTION OF DEBTS. attorne)', physician, or minister, not exceeding two hundred and fifty dollars in value, and instruments of a surgeon or dentist to a like value. 7. Arms and accoutrements of militia men. 8. Globes, books, and maps of a teacher. And also of the property of each head of a family, one yoke of oxen, or one work horse or mule, two cows and calves, five head of stock hogs, five sheep, fifty bushels of corn, ten bushels of wheat or rice, two hundred pounds of pork or other meat, one cart or wagon not exceeding one hundred dollars in value, and household and kitchen furniture not exceeding one hundred dol- lars in value. And a homestead not exceeding eighty acres, or with the buildings not exceeding in value two thousand dollars. BUSSOURI. — Actions are begunyfrj/, by filing with the clerk a petition setting forth the cause of action, and the remedy sought, and the voluntary appearance of the other party, or, second, by fihng such petition, and suing out thereon a summons against the person, or an attachment against prop- erty. Arrest. There is none for debt. Attachment maybe had, i. Where the defendant is a non-resident. 2. Where the defendant is a foreign corporation. 3. Where the defendant conceals himself so that service cannot be had on him. 4. Where he has absconded or absented himself so that summons cannot be served on him. 5. Where defendant is about to remove his property from the State with intent to defraud his creditors. 6. Where defendant is about to remove out of the State. 7. Where defendant has fraudulently conveyed his property so as to avoid payment of his debts. 8. Where defendant has fraudulently concealed his property with a like intent. 9, 10. Where he is about to fraud- ulently convey or conceal his property with like intent. 1 1. Where cause of action accrued out of the State, and the defendant has absconded, or removed his property to this State. 12. Where the damages sought are for injuries arising from commission of a felony or misdemeanor, or the seduction of a female. 13. Where the defendant has failed to pay the price of an article delivered, which by contract he was bound to pay for on delivery. 14. Where the debt was fraudulently contracted. Plaintiff must file an affidavit stating the nature and amount of his claim, and his belief that one or more of the above causes are true. Garnishment. The writ of attachment may be served on any one hav- ing property of, or who is indebted to the defendant, or who may be named by the plaintiff as a garnishee. The same may be done on execution, where insufficient property of the defendant is found to satisfy the claim. Judgment becomes a lien on real estate in any county by filing a trans- cript in the office of the clerk of the circuit court for such county, and it extends to real estate acquired after the rendition or filing of transcript, as well as to what was owned at the time, and it continues for three years. Judgments bear interest at six per cent., unless there was another rate expressed in the contract, in which case such rate is taken, not exceeding ten per cent. There is no stay of execution. ABSTRACT OF THE COLLECTION OF DEBTS. ^25 Exemptions. To every head of a family, i. ten head of choice hogs, ten head of choice sheep, and produce in wool, two cows and calves, two plows, one axe, one hoe, one set of plow gears, necessary farming imple- ments for one man. 2. Working animal to the value of one hundred and fifty dollars. 3. Spinning-wheels and cards, one loom and appliances for manufacturing cloth in and for the private family. 4. Spun yarn, cloth, and thread manufactured for family use. 5. Hemp, flax, and wool, not exceed- ing twenty-five pounds each. 6. Wearing apparel, four beds and bedding, other household and kitchen furniture, not exceeding in value one hundred dollars. 7. Necessary tools and implements of trade of a mechanic. 8. Arms and accoutrements of a militia man. 9. Provisions for the family, not exceeding one hundred dollars in value. 10. Bibles and other books, lettered grave-stones, and pew in church. 11. Lawyers, physicians, and clergymen may select necessary books in place of other property exempt, and doctors may select medicines. 12. A homestead not exceeding one hundred and sixty acres in extent, or fifteen hundred dollars in value, or, in .cities of forty thousand inhabitants or more, a lot of eighteen square rods to the value of three thousand dollars, or in cities or other incorporated towns or villages of less than forty thousand inhabitants, thirty square rods of ground to the value of fifteen hundred dollars. NEBItASKA. — There is but one form for all civil actions, which must be prosecuted by the real party in interest, and which are begun by filing a petition with the clerk of the court, and causing a summons to issue thereon. Arrest. An order for arrest may issue before or after judgment, on filing an affidavit with the clerk of the court, stating the nature and amount of the claim, that it is just, and one of the following grounds : i. That the defendant has removed, or begun to remove his property out of the jurisdic- tion of the court, with intent to defraud creditors. 2. That he has begun to convert his property into money to place it beyond the reach of his creditors^. 3. That he has property or rights of action which he fraudulently conceals. 4. That he has assigned or disposed of, or begun to assign or dispose of, his property with intent to defraud creditors. 5. That he fraudulently contracted the debt. The affidavit must also contain a statement of the facts claimed to justify the belief. Attachment may issue on filing with the clerk an affidavit stating the nature and amount of the claim, that it is just, and one of the following grounds : i. That defendant is a foreign corporation, or non-resident. 2. That he has absconded with intent to defraud creditors. 3. That he has left the county of his residence to avoid service of the summons. 4. That he so conceals himself that service cannot be made on him. 5. That he is about to remove his property beyond the jurisdiction of the court with intent to defraud. 6. That he is ibout to convert his property into money to place it beyond the reach of creditors. 7. That he has property concealed. 8. That he has removed or disposed of his property, or is about to do so, with intent to defraud. 9. That he fraudulently contracted the debt. 726* ABSTRACT OF THE COLLECTION OF DEBTS. Garnishment. If the plaintiff makes an oatli in writing, that he believes that any person or corporation to be named, and within the county, has prop- erty (describing it) of the defendant, and if the officer cannot come at such property to attach it, he may leave a notice with the garnishee to appear at court. Also on return of an execution, unsatisfied, the judgment creditor may have a writ of garnishment. JuDGJiENT is lien on lands within .the county where it was rendered, from the date of rendition, and in other counties from the filing a transcript with the clerk of the court, and the lien continues for five years. All other lands, as well as goods and chattels are bound, from the time of seizure on execu- tion. Interest on all decrees or judgments for the payment of money, shall be from the rendition thereof at the rate of seven per cent, till paid. Stay Laws. Stay of execution is allowed as follows : In the probate court ; on sums over one hundred dollars, in the same manner as in the dis- trict court ; on sums of one hundred dollars and under, as in courts of jus- tices of the peace. In the district court, execution may be stayed one year, if defendant within twenty days after judgment shows that he owns real property in the county of sufficient value over incumbrances to pay the judgment, or if he gives bond with surety to pay the debt. In justices' courts on giving a similar bond as follows : On sums not exceeding five dol- lars, sixty days ; between five and fifty dollars, ninety days ; between fifty and one hundred dollars, six months. Exemptions. To heads of families having no homestead, there is exempt five hundred dollars' worth of personal property. Homestead of one hundred and sixty acres not in an incorporated city or village, or in lieu thereof, two contiguous lots on a recorded plot in a city, town, or village, or a lot of twenty acres within the limits of an incorporated city, town, or village, but not cut up into lots or squares. Of personal property : i. Family Bible. 2. Family pictures, school-books, and library for use in the family, 3. Seat or pew in church. 4. Lot in burying-ground. 5. Necessary wearing apparel, beds, bedding, and bedsteads necessary for the family, all stoves and apparatus, not exceeding four, cooking utensils and other household furniture not enumerated, not exceeding one hundred dollars in value. 6. One cow, three hogs, and all pigs under six months, and if the debtor be actually engaged in agriculture, one yoke of oxen, or in lieu thereof, one pair of horses, ten sheep, and the wool therefrom, raw or manufactured, necessary food for stock for three months, one wagon, cart, or dray, two plows, and one drag, necessary gear, and farming implements, not exceeding fifty dollars in value. 7. Provisions and fuel for six months. 8. Tools, instruments of a mechanic or miner, or other person used for carrying on his trade or business, library and implements of a professional man. NEVADA. — Actions. There is only one form of action, which is pros- ecuted by the real party in interest, and is begun in the district court by filing a complaint with the clerk, and issuing a summons thereon. The defendant may appear voluntarily, when he waives notice of the summons. ABSTRACT OF THE COLLECTION OF DEBTS. 727 Arrest. Defendant may be arrested and held to bail i. In an action for the recovery of money, or damages in an action on contract, where he is about to leave the State with intent to defraud his creditors, or where the action is for libel or slander. 2. In an action for a fine or penalty, or for embezzlement, or fraudulent misappropriation of money by a public officer of a corporation, or an attorney, agent, broker, etc. 3. In an action to recover property unjustly detained, where the property has been removed or con- cealed. 4. Where the defendant fraudulently contracted the debt. j. Where the defendant has or is about to dispose of his property fraudulently. Plain- tiff must make affidavit of one of the above grounds. Attachment may be had at any time — i. In an action of contract for the direct payment of money payable in Nevada, and not secured. 2. In an action of contract against a non-resident, on an affidavit filed with the clerk of the court, stating one of the grounds mentioned under arrest. Garnishment. Debts and credits of the defendant in the hands of third parties may be attached on original process ; and on receiving infor- mation from the plaintiff the sheriff may summon them to appear. Judgment is a lien in the county where it was rendered from the time of docketing, and in other counties from date of filing a transcript, the lien continues for two years. The legal rate of interest on judgments is ten per cent., but parties may stipulate for any rate by contract, which is fol- lowed in the judgment. There is no stay cf execution except on appeal. Exemptions, i. Chairs, tables, desks, and books to the value of one hundred dollars. 2. Necessary household, table, and kitchen furniture, including stove and stove utensils, wearing apparel, beds, bedding, and bed- steads, provisions and firewood for one month. 3. Farm utensils, also two oxen, or horses, or mules and their harnesses, two cows, one cart or wagon, and food for stock for one month, seed grain or vegetables for planting or sowing within six months, to the value of two hundred dollars. 4. Tools and implements of mechanic or artisan necessary to their trade, and instru- ments and chests of a surgeon, physician, surveyor, or dentist, necessary ' for their profession, with their scientific or professional libraries, and library of an attorney or clergyman. 5. Cabin of a miner not exceeding five hun- dred dollars in value, also all mining apparatus and tools to the value of five hundred dollars, and two horses, mules, or oxen, and their harness. 6. Two oxen, horses, or mules, and their harness, and cart by which a carter or teamster, etc., earns his living, one horse, vehicle, and harness necessary for a physician or clergyman, and food for one month. 7. Sewing-machine to the value of one hundred and fifty dollars and in actual use. 8. Fire engines and apparatus, etc. 9. Arms and accoutrements of a militia-man. 10. A homestead not exceeding in value five thousand dollars. NEW HAMPSHIRE.— Actions are begun by a summons, attachment, and capias, trustee process, or replevin, in forms which are prescribed by statute. Attachment. All property not exempt from being taken on execution 728 ABSTRACT OF THE COLLECTION OF DEBTS. may be attached, of right, without any affidavit, and the lien continues for thirty days after judgment. Arrest. The defendant riiay be arrested on an action of contract if th€ debt or damage, exclusive of all costs, amounts to thirteen dollars and thirty- three cents, on an affidavit made before a justice of the peace that the affiant believes that the defendant is justly indebted to the plaintiff, and that he conceals his property so that no attachment can be made, or that he has good reason to believe that he is going to leave the State to avoid payment of his debts. Garnishment, called Trustee Process. All actions except replevin, trespass to the person, and defamation and malicious prosecution, may be begun by trustee process. It is in the form of an attachment and summons, and the names of other parties may be inserted in the writ as trustees, at any time before service on the defendant. Judgment is not a lien. {See Attachment.) There is no stay of exe- x:ution. Exemptions, l. Wearing apparel necessary for the debtor and his family. 2. Comfortable beds, bedding, and bedsteads for himself and his family. 3. Furniture to the value of one hundred dollars. 4. Bibles, school- books, and hbrary to the value of two hundred dollars. 5. One cow. 6. One hog, one pig, and the pork of the same when slaughtered. 7. Tools of his occupation not exceeding one hundred dollars in value. 8. Six sheep and their fleeces. 9. Cooking-stove and necessary furniture for the same. 10. Provisions and fuel to tlie value of fifty dollars. 11. Uniform and accoutrements of a militia man. 12. Pew in a church. 13. A lot in a burying- ground. 14. One sewing-machine. 15. Beasts of the plow not exceeding one yoke of oxen or a horse, and hay not exceeding four tons. Also a home- Stead of the head of a family not exceeding in value five hundred dollars. NEW JERSEY. — Actioxs under the provisions of the common law, as modified by statute, are begun by writs of summons, capias, or warrant, attachment, etc. Arrest. A writ of capias issues on an affidavit before a Judge of the Supreme Court or a Supreme Court Commissioner, specifying the nature and particulars of the debt, and one or more of the following causes : I. That the defendant is about to remove any property out of the jurisdiction of the court with intent to defraud creditors. 2. That the defendant has property or rights which he fraudulently conceals. 3. That he has, or is about to assign, remove, or dispose of his property with intent to defraud his creditors. 4. Or that the debt was fraudulently contracted. Defendant may be arrested on execution for one of the preceding causes, or that he has in his posses- sion or under his control property to the value of fifty dollars, which he refuses to pay over on the execution. Attachment. A writ may issue on affidavit on behalf of the creditor that the defendant has absconded, and is not, to his belief, a resident of the State, or against a defendant living out of the State. ABSTRACT OF THE COLLECTION OF DEBTS. 729 Garnishment is allowed. Judgment is a lien on real estate from the time of entry of judgment, and remains a lien for the period of limitation, twenty years, and bears interest at seven per cent. Stay Laws. Stay of execution is allowed only in justices' courts, where defendant appears on the day judgment is given and gives a bond -with surety, — on sums not exceeding fifteen dollars, one montlf ; between -fifteen and sixty dollars, three months ; and over sixty dollars, six months. Exemptions. Goods and chattels of every kind (not including wearing apparel) to the value of two hundred dollars, and wearing apparel of the debtor having a family. Also the lot and building owned and occupied by the debtor, if he is head of a family, to the value of one thousand dollars. NEW "STOB/E. — Actions are begun by the service of a summons, specify- ing the names of all parties, on the defendant personally, if within the , State. Arrest. The defendant may be arrested on mesne process, i. To recover a fine or penalty. 2. Or damages for injury to person or property, other than the taking, detaining, or conversion of the same, breach of promise to marry, misconduct or negligence in an official or professional employment, fraud, and deceit. Also, i. When the action is to recover a, chattel, concealed or disposed of in order to prevent the plaintiff from obtaining the same. 2. To recover on a contract other than a promise of marriage, when the defendant has been guilty of fraud in contracting the debt, or has, or is about to dispose of his property with intent to jlefraud his creditors. Attachment may issue where the complaint demands judgment for a sum of money only, and one of the following causes : I. For breach of con- tract other than a promise to marry. 2. For wrongful conversion of personal property. 3. For the loss of, or damage, or injury to, personal property by fraud, negligence, or other misconduct, on an affidavit showing suflicient cause and that defendant is a foreign corporation or a non-resident, or that he has departed from the State with intent to defraud creditors, or to avoid service, or keeps himself concealed with like intent, or has or is about to remove his property from the State with intent to defraud creditors, or has, or is about to assign or dispose of his property with like intent. Judgment is a lien on the real estate of defendant from the time of docketing in the county where the land is situate, and remains a hen for ten years. There is no stay of execution in New York. Exemptions. Of a householder : i. Spinning-wheels, weaving-looms, and stoves put up and for use in the dwelling-house, and one sewing machine and appurtenances. 2. Family Bible, family pictures, school-books, and other books not exceeding fifty dollars in value. 3. Seat or pew in church. 4- Ten sheep and their fleeces, and yarn or cloth manufactured therefrom, one cow, two swine, necessary food for animals, and for the household, and fuel, oil, and candles for sixty days. 5. Wearing apparel, beds, bedding and 730 ABSTRACT OF THE COLLECTION OF DEBTS. bedsteads necessary for the family, necessary cooking utensils, one tabk, six chairs, six knives and forks and spoons, six plates, six teacups and saucers, one sugar dish, milk pot, teapot, crane and appendages, pair of andirons, coal-scuttle, shovel, pair of tongs, lamp, and candlestick. 6. Tools and implements of a mechanic and necessary for carrying on his trade not exceeding twenty-five dollars in value. In addition, necessary household furniture, working tools and team, professional instruments, furniture and library, together with necessary food for the teamfor ninety days. A burying- ground actually occupied and not exceeding a quarter of an acre. Home- stead of a householder having a family, owned and occupied by him, to the value of one thousand dollars. HOETH CAROLINA.— Actions. The distinctions between law and equity and the forms of actions are abolished, and there is but one form of action, which is begun by issuing a summons from the clerk of the court, and which is prosecuted in the name of the' real party in interest, except in case of executors, etc. Arrest. Defendant may be arrested and held to bail in an action of contract where the defendant is a non-resident or is about to remove from the State ; and in an action for damages not on contract, for injury to the person or character, or for the wrong-taking, detaining, or converting of property. 2. In an action for a fine or penalty, .or for breach of promise of marriage, or for money received, or property embezzled, or fraudulently misappropriated by a public officer, attorney, solicitor, officer of a corpora- tion, factor, agent, or broker, or for misconduct or negligence in office. 3. In an action to recover personal property unjustly detained and concealed so that the sheriff cannot find it. 4. Where the debt was fraudulently con- tracted, or where defendant fraudulently conceals or disposes of the prop- erty for which action is brought, or when the action is for damages for fraud or deceit. 5. Where defendant has removed or disposed of his property, or is about to do so, with intent to defraud creditors. Plaintiff must make affidavit of the cause of action, and showing one of the above grounds. Attachment is allowed at the time of issuing summons, or at any tim& thereafter, in an action on contract for the recovery of money only, or in an action for the wrongful conversion of personal property, or against a foreign corporation or a non-resident, or against a defendant absconding or conceal- ing himself, or who is about to remove his property from the State, or who has assigned, secreted, or disposed of his property, or is about to do so, with intent to defraud creditors, on an affidavit specifying the cause of action, the amount, grounds, and one of the above reasons. Garnishment. There is no distinctive process of garnishment ; it is only allowable by original attachment. Judgment is a lien on real estate in every county from the time of dock- eting or filing a transcript thereof, and remains a lien for ten years ; bears Interest at six per cent., or at a rate not exceeding eight per cent., if speci- fied in the agreement sued upon. ABSTRACT OF THE COLLECTION OF DEBTS. 731 Stay-Laws. Stay of execution is allowed on judgments rendered since May I, 1865, in justices' courts, as follows : On sums not exceeding twenty- five dollars, one month ; between twenty-five and fifty dollars, threa-months ; between fifty and one hundred dollars, four months ; over one hundred dol- lars, six months. Defendant must give bond wilh surety. Exemptions. Homestead occupied by the debtor to the value of one thousand dollars ; also personal property, to be selected by the debtor, to the value of five hundred dollars. OHIO.— Actions. All distinctions are abolished ; must be prosecuted in the name of the real party in interest except in case of executors, etc., and are begun by filing with the clerk of the court a petition, and causing a sum- mons to issue thereon. Plaintiff must also file a precite, stating the names of the parties and demanding a summons thereon. Arrest. Defendant may be arrested on affidavit made before any judge, clerk of the court, or justice of the peace, stating the nature and amount of the claim, that it is just, and one of the following grounds : i. That the defendant has removed, or is about to remove, his property out of the jurisdic- tion of the court with intent to defraud creditors. 2. That he has begun to convert his property into money with intent to place it beyond the reach of his creditors. 3. That he has property or rights that he fraudulently con- ceals. 4. That he has assigned, removed, or disposed of, or has begun to do so, his property, with intent to defraud creditors. 5. That the debt was fraudulently contracted. The affidavit must also state the facts claimed to justify belief in the ground alleged, and the order may issue at anytime before judgment. Officers and soldiers in the revolutionary war, and all females, are privi- leged from arrest or imprisonment on all process, mesne or final, for any debt or demand founded on contract. Attachment is granted on an affidavit stating the nature, amount, and justice of the cause, and one of the following causes ; x. That the defend- ant is a foreign corporation or a non-resident. 2. Or has absconded witk intent to defraud creditors. 3. Has left the county of his residence to avoid service of the summons. 4. So conceals himself that service cannot be had on him. 5. Is about to remove his property beyond the jurisdiction of the court to defraud his creditors. 6. Is about to convert his property into money to place it beyond the reach of his creditors. 7. That he has prop- erty or rights of action which he conceals. 8. Has assigned or removed, or is about to assign or remove his property with intent to defraud creditors. 9. That the debt was fraudulently contracted. But attachment is not to issue on the ground that the defendant is a foreign corporation or non-resi- dent, for any claim other than a debt or demand arising on a contract, judg- ment, or decree. Garnishment. If the plaintiff, or some one on his behalf, shall make oath in writing that any person or corporation named has any property of the defendant (describing it), such person or corporation may be summoned as garnishee. 732 ABSTRACT OF THE COLLECTION OF DEBTS. Judgment is a lien on real estate within tlie county where rendered, from the first day of the term, except judgments by confession, which bind from the date of such confession. All other lands and goods and chattels are bound from the date of seizure on execution. Lien continues for five years, but execution must issue on the judgment within one year or the lien is lost. Judgment bears interest at six per; cent. Stay-Laws. Stay of execution is allowed only in justices' courts on giving bond with surety within ten days after judgment was given, as follows: On sums not exceeding five doUars, sixty days ; between five and twenty dollars, ninety days ; between twenty and fifty dollars, one hundred and fifty days ; of fifty dollars and over, two hundred and forty days. Exemptions. The homestead of the head of a family to value of one thousand dollars, or if he does not own any homestead, he may select per- sonal or real property to the value of five hundred dollars in addition to the amount exempt below, of personal property: i. Wearingapparel, beds, bed- ding and bedsteads necessary for the family, one cooking-stove and pipe, and one stove and pipe used for warming, and fuel for sixty days actually provided. 2. One cow, or if debtor has no cow, household furniture to the value of thirty-five dollars, two swine or their pork, or in lieu thereof, house- hold property to the value of fifteen dollars, six sheep and the wool and cloth therefrom, or household furniture to the value of fifteen dollars, and' food for such animals, if any, for sixty days. 3. Bible, hymn-books, psalm- books, testaments and school-books, and family pictures. 4. Provisions actually provided to the value of fifty dollars, and other articles of house- hold and kitchen furniture to the value of fifty dollars. 5. One sewing-ma- chine, one knitting-machine, tools and implements for trade not exceeding one hundred dollars in value. 6. Personal earnings of the debtor or his minor children for three months previous to the rendition of judgment, on an affidavit that it is necessary for the support of the family. 7. All articles, specimens, and cabinets of natural history or science, unless the same are used for a show or for making money. In addition to the above, to a head of a family who is a drayman, one horse, harness, and dray ; or who is engaged in agriculture, one horse or yoke of cattle, the necessary gear and one wagon ; or, if a person practicing medicine, one horse, saddle and bridle, and books, medicines, and instru- ments not exceeding in value one hundred dollars. Of the property of an unmarried woman — wearing apparel to the value of one hundred dollars, sewing-machine, knitting-machine, Bible, hyran- book, psalm-book, and other books to the value of twenty-five dollars. OBEGON.— Actions. All distinctions are abolished ; there is but one form, which is prosecuted in the name of the real party in interest, except in case of executors, administrators, etc., and which is begun by filing a com- plaint with the clerk of the court, and causing at any time a summons to issue thereon to be served on the defendant. Arrest. Defendant may be arrested at any time before judgment, on ABSTRACT OF THE COLLECTION OF DEBTS. 73J filing an'S.ffidavit with the clerk of the court, i. In an action for the recov- ery of money, or damages on a contract when the defendant is a non-resi- dent, or is about to remove from the State, or when the action is for injuries to the person or character, or injuries to, or wrong-taking, detaining, or con- verting of property. 2. In an action for a fine or penalty, or for money received, or property embezzled or fraudulently misappropriated, or converted by a public officer or attorney, or officer of a corporation, as such, or by a factor, agent, or broker, or for misconduct or neglect in office. 3. In an action to recover possession of personal property detained, when it is con- cealed so that it cannot be found by the officer, with intent to deprive the plaintiff of the use thereof. 4. Where the debt was fraudulently contracted. 5. Where defendant has removed, or disposed of his property, or is about to do so, with intent to defraud creditors. Attachment may issue at any time after entry and before judgment, in an action to recover money or damages, on filing an affidavit stating the cause and grounds of the action, and one of the following : i. That de- fendant is a foreign corporation. 2. Non-resident, or has departed from the State with intent to delay or defraud creditors, or to avoid service of sum- mons, or keeps himself concealed so that service cannot be had on him. 3. Has removed, or is about to remove his property, or any of it, from the State, with intent to delay or defraud creditors. 4. Has assigned or dis- posed of his property, or is about to do so, with intent to delay or defraud creditors. 5. Was guilty of fraud in contracting the debt. Garnishment is allowed on original process by attachment ; there is no distinctive process. Judgment is a lien on real estate in the county where it was rendered, from the date of docketing, and in other counties from the filing a transcript in such county, and continues as such for ten years, and bears interest at ten per cent, unless a different rate was contracted for, when such rate is taken not exceeding twelve per cent. There is no stay of execution in Oregon. Exemptions, i. Books, pictures, and rrusical instruments to the value of seventy-five dollars. 2. Necessary wearing aopar " of the debtor to the value of one hundred dollars, 01 if a hous hTder, clothing for each member of the family to the value of fifty doi. .rs. 3. Tool , iriplements, apparatus, team, vehicle, harness, or library necessary for the trade, occupation, or pro- fession of the debtor to the value of four hundred dollars, and sufficient food for the team for sixty days. 4. Of property of a householder ten sheep and one year's fleece, or the yarn or cloth therefrom, two cows, five swine, household goods, furniture and utensils to the value of three hundred dollars, food for animals for three months, and for the family for six months. 5. Seat or pew in a church. There is no homestead exemption. PENNSYLVANIA.— Actions. Personal actions, except in some special cases, are begun by a summons, and the common law prevails. Arrest. A writ of capias may issue in actions of tort. Special capias 734 ABSTRACT OF THE COLLECTION OF DEBTS. issues on an affidavit of the cause of action and that the defendant is about to leave the Commonwealth without leaving sufficient property to satisfy the demand. No person can be arrested in an action to recover money due on a judgment or contract, or for damages for the non-performance of a con- tract except in process, as for contempt, to enforce civil remedies in actions for fines or penalties, for breach of promise of marriage, for money collected by a public officer, or for misconduct or neglect in office. But after bringing suit, before or after judgment, he may be arrested on affidavit, that defend- ant is about to remove his property beyond the jurisdiction 'of the court to defraud creditors, or that he has property fraudulently concealed, or rights of action or interest, which he refuses to apply to the payment of his debts, or that he has assigned, removed, or disposed of his propertj', or is about to do so, with intent to defraud creditors, or that he fraudulently contracted the debt. Attachment. Property of the defendant may be attached, if the plain- tiff makes affidavit that the defendant is justly indebted to him in a sum exceeding one hundred dollars, stating the nature and amount of the claim, and that defendant is about to remove his property out of the jurisdiction of the court, or that he has property or rights that he fraudulently conceals, or that he has assigned, disposed of, or concealed his property, or is about to do so, with intent to defraud creditors, or that he fraudulently contracted the debt. Garnishment. Attachment may issue after judgment, on the property or debts due the defendant in the hands of third parties, and garnishee may be summoned in. Judgment bears interest at six per cent., and is a lien on real estate in the county where rendered. It may be transferred to other counties and continues a lien for five years, but after that may be revived by scire facias. Stay Laws. Stay of execution is allowed on judgments in actions of contract, by giving bond with surety, or offering sufficient unincumbered real estate, as follows : On sums not exceeding two hundred dollars, six months ; between two hundred and five hundred dollars, nine months ; Over five hundred dollars, one year. In justices' courts, as follows : On sums not exceeding twenty dollars, three months ; between twenty and sixty dollars, six months ; over sixty dollars, nine months. There is no stay on judgments for one hundred dollars or less, for wages of manual labor. Exemptions. Property to the value of three hundred dollars, exclu- sive of wearing apparel of the defendant and his family, and all Bibles and school-books in use in the family, and nothing more. There is no home- stead exemption. RHODE ISLAND.— Actions are begun by original writ of summons, arrest, or attachment. The common law, as modified by statute, prevails. Arrest. Writ of arrest may issue, i. To recover debts which accrued before July i, 1877. 2. In actions on penal statutes or of tort. 3. In any action of contract, on affidavit to be annexed to the writ, that the claim is ABSTRACT OF THE COLLECTION OF DEBTS. 735 just and that the plaintiff expects to recover enough to give the court juris- diction ; and also, either that defendant is about to leave the State without leaving sufficient property to be taken on execution, or that the defendant committed fraud in contracting or in concealing or disposing of it. Plaintiff, after commencement of the action, may sue out the writ to arrest at any time before judgment, by making a similar affidavit. Attachment. Writ of attachment issues against property of the defendant and personal property in the hands of third parties, as trustees, on an affidavit by the plaintiff that he has a good cause of action and expectation of recovering enough to give jurisdiction to the court, and either that defendant is a foreign corporation, or non-resident, or is out of the State, not to return in time to be served with process, or that he committed fraud in contracting the debt, or in conceaUng or disposing of his property, or that since contracting the debt the defendant has had property which he refuses to apply to the payment of the debt. Garnishment issues by original writ of attachment against personal property of the defendant in the hands of a third party. {See Attach- ment.) Judgment is not a lien on real estate. It bears interest at six per cent. There is no stay of execution. Exemptions, i. Wearing apparel of the defendant and his family, if he has one. 2. Working tools of the debtor necessary to his occupation to the value of two hundred dollars. 3. Household furniture and stores of a housekeeper, including beds and bedding, not exceeding three hundred dollars in value. 4. Bible, school, and other books to the value of three hundred dollars. 5. One cow, and one and a half tons of hay of a house- keeper. 6. One hog, one pig, and pork of the same, of a housekeeper. 7. Uniform and accoutrements of a militia man. 8. Pew in church. 9. Lot in burying-ground. 10. Mariners' wages until after the termination of the voyage on which they were earned. 11. Debts secured by bills of exchange or negotiable promissory notes. 12. Salary or wages to the amount of ten dollars, when the cause of action is not for necessaries. There is no home- stead exemption. SOUTH CAROLINA. — Actions. All distinctions between actions are abolished, and there is but one form for all civil actions, prosecuted in the name of the real party in interest, except in case of executors, administra- tors, etc., and begun by the service of a summons. Arrest. Defendant may be arrested on affidavit on the part of the plaintiff, i. In an action to recover damages other than for breach of con- tract, where defendant is a non-resident, or is about to remove from the State, or where the injury complained of is to the person or character, or for wrong taking, detaining, or converting property. 2. In an action for a fine or penalty, or for money received or property embezzled or fraudulently misappropriated by a pubhc officer or an attorney, or officer or agent of a corporation, as such, or factor, agent, or broker, or for any misconduct or 47 736 ABSTRACT OF THE COLLECTION OF DEBTS. neglect in official or professional employment. 3. In an action to recover possession of personal property wrongfully detained, when the property is so removed that it cannot be found by the sheriff, and removed with intent to deprive plaintiff of possession of the same. 4. Where the defendant was guilty of fraud in contracting the debt. 5. Where the defendant has removed or disposed of his property, or is about to do so, with intent to defraud creditors. Attachment may issue in an action of contract to recover money only, or for the wrongful conversion of property where the defendant is a foreign corporation or a non-resident, or has absconded or concealed himself, or is about to remove his property from the State, or has assigned, disposed of, or secreted his property, or is about to do so, with intent to defraud creditors, on an affidavit stating one of the above grounds. Garxishmext is known only by attachment. Judgment is a lien on real property for ten years ; and judgments for money bear interest at seven per cent. There is no stay of execution. Exemptions. Homestead of the head of a family not exceeding in value one thousand dollars ; personal property, furniture, beds, bedding, family library, arms, carts, wagons, farming implements, tools, cattle, work animals, swine, goats, and sheep, not to exceed in value five hundred dollars, and all necessary wearing apparel. TENNESSEE. — Actioxs. There is only one form for all actions which are begun by a summons issued by the clerk of the court and directed to the sheriff. Arrest. There is no arrest for debt in Tennessee. Attachment maybe had at the commencement of the action for a debt or demand due or after action begun, either before or after judgment, for any cause, where, i, the debtor is a non-resident ; 2, or is about to remove himself or his property out of the State ; 3, or has removed out of the county of his residence privately ; 4, or has concealed himself so that process cannot be served on him ; 5, has absconded or concealed himself or his property ; 6, has fraudulently disposed of his property, or is about to do so ; 7, where any person liable for a debt, and a non-resident, dies leaving property within the State. The plaintiff or his agent must make an oath in writing of the nature and amount of the debt, and one of the above causes. Garnishment. Where property, choses in action, or effects of the de- fendant are in the hands of a third party, or such party is indebted to the defendant, attachment may issue by garnishment. Also on execution, where the sheriff cannot find sufficient property to satisfy the execution. Judgment is a lien on real estate, in the county where rendered, from the date of rendition, and in other counties from the date of registration of a certified copy ; but the lien is lost unless execution is taken out and the land sold within twelve months after rendition. Judgment bears interest ABSTRACT OF THE COLLECTION OF DEBTS. 737 at six per cent., unless there is a different rate expressed in the contract, when such rate is followed, not exceeding ten per cent. There is no stay of execution. Exemptions. Thirty dollars, wages of a mechanic or laboring man, if the same are due. Personal property of the head of a family, two beds, bedsteads, and bedding, and for every three children one additional bed, etc. ; all not to exceed twenty-five dollars in value ; two cows and calves, and if the family consist of six persons or more, three cows and calves ; one dozen knives and forks, one dozen plates, six dishes, set of table- spoonis, set of teaspoons, tray, two pitchers, waiter, one coffee-pot, one tea- pot, cjtnister, cream-jug, one dozen cups and saucers, one dining-table, and two table cloths, one dozen chairs, one bureau, not to exceed forty dollars in value, one safe or press, one wash-basin, one bowl and pitcher, one washing- kettle, two washing-tubs, one churn, one looking-glass, one chopping-axe, one spinning-wheel, one loom and gear, one pair cotton-cards, one pair wool- cards, one cooking-stove and utensils, one set ordinary cooking utensils, one meal-sieve, one wheat-sieve, one cradle, Bible and hymn-book, and all school-books, two horses or two mules, or one horse and one mule, one yoke of oxen and gear, one two-horse or one-horse wagon to the value of seventy-five dollars, and the harness, one man's saddle, one woman's saddle, two riding-bridles, twenty-five bushels of corn, twenty bushels of wheat, five hundred bundles of oats, five hundred bundles fodder, one stack of hay to the value of twenty-five dollars ; if the family is less than six per- sons, one thousand pounds of pork slaughtered or on foot, or six hundred pounds of bacon ; or if the family consists of more than six persons, twelve hundred pounds of pork, or nine hundred pounds of bacon, all poultry to the value of twenty-five dollars, homestead carpet manufactured by the wife or a female member of the family for family use, six cords of wood or one hundred bushels of coal, one sewing-machine. If the head of the family is engaged in agriculture, two plows, two hoes, one grubbing-hoe, one cutting- knife, one harvest-cradle, plow-gears, one pitchfork, one rake, three iron wedges, five head of sheep, ten stock hogs, also the tools of a mechanic, one gun to every male person ; to a head of a family, fifty pounds of picked cotton, twenty-five pounds wool, leather for winter shoes, and to each mechanic fifty dollars' worth of lumber and materials. A homestead of the head of a family of the value of one thousand dollars. TEXAS. — Actions are begun by petition filed with the clerk of the court upon which a citation issues to the defendant. Arrest for debt is abolished. Attachments may issue upon an affidavit by the plaintiff or his attorney, stating that the debt is a just one, and the amount of the same, together with one of the following grounds : i. That defendant is a non-resident. 2. That he is about to remove out of the State. 3. Or has abandoned the country. 4. Or that he secretes himself so that process cannot be served on him. 5. That he is about to remove his property out of the State. 738 ABSTRACT OF THE COLLECTION OF DEBTS. 6. That he is about to remove his property beyond the jurisdiction of the court. 7. That he is about to transfer or secrete his property, or has done so with intent to defraud creditors, and that thereby the plaintiff is in danger of losing his debt ; and he must also swear that the attachment is not sued out for the purpose of injuring the defendant, and that the original petition is true. Garnishment may issue after suit brought on affidavit that the amount claimed is just, due, and unpaid ; that he does not know of any property of defendant not exempt, sufficient to satisfy the claim, and that he believes that any parties (naming them) are indebted to the defendant, or have prop- erty or effects of the defendant; also, where judgment has been rendered, or attachment sued out on affidavit. Judgment is a lien on real estate in the county where it was rendered, and in other counties it becomes such by filing a transcript. The lien con- tinues for ten years, but unless execution issues within twelve months it ceases to bind the property. Stay Laws. Stay of execution is allowed only in justices' courts for three months, on giving bond with good security. Exemptions. A homestead of two hundred acres not in any town or city, or a lot, or lots, in a city, town, or village, not to exceed five thousand dollars in value. Also to every head of a family, all household and kitchen furniture, all implements of industry, tools or apparatus of trade or pro- fession, books of private or public library, five milch ccws and calves, two yoke of oxen, two horses and one wagon, o e carri^^e or buggy, one gun, twenty hogs, twenty head of sheep, all provisions and forage for home use, bridles, saddles, and harness necessary for the use of the family; to every person not the head of a family, a horse, bridle, saddle, necessary wearing apparel, tools, apparatus, and books of his private hbrary. VERMONT. — Actions. The common law is in force, and the old actions are in use. Process is by writ of summons or attachment. Writs run into any county, and must be served twelve days at least before' the return day. Attachment issues of right on original writ. Personal property attached must be taken possession of by the officer. It is a lien on personal property for thirty days after judgment, and real property for five months from such judgment. Arrest. Defendant may be arrested in any action of tort, and in an action of contract, or on execution issued in an action of contract, on an affidavit that the affiant believes that defendant is about to abscond, and has secreted his property to the amount of twenty dollars not exempt. Garnishment is called Trustee Process Actions may be begun by trustee process, and any persons having goods, effects, or credits, may be summoned and the property attached. Debts and legacies, absolutely due, may be so attached, and corporations summoned as trustees. ABSTRACT OF THE COLLECTION OF DEBTS. 739 Judgments bear interest at six per cent., and are not liens on real prop- erty. {See Attachment.) There is no stay of execution. Exemptions. Suitable apparel, bedding, tools, arms, and articles of household furniture necessary for the debtor and his family, one sewing- machine, one cow, the best swine, or meat from one swine, ten sheep, and one year's produce in wool, yarn, or cloth, forage for ten sheep and one cow for the winter, ten cords of firewood, twenty bushels of potatoes, military arms and accoutrements of militiamen, all growing crops, ten bushels of grain, one barrel of flour, three swarms of bees, and hives and produce in honey, two hundred pounds sugar, lettered gravestones, Bibles and other books used in the family, one pew in church, live poultry to the value of ten dollars, professional books and instruments of physician, professional books of an attorney or clergyman to the value of two hundred dollars, one yoke of oxen or steers, and forage for the'winter, two horses kept and used for team work, and such as the debtor may select in heu of one yoke of oxen or steers, but not exceeding two hundred dollars in value, and forage for the winter. A homestead of a housekeeper, or head of a family, to the value of five hundred dollars. VIRGINIA. — Actions. The common law forms remain, and actions are begun by original writ and summons, returnable in ninety days. The assignee of a bond or note may sue in his own name. Attachment is allowed — i. On a suit for debt or damages for a breach of contract, on an affidavit stating the amount and justice of the claim, and that there is a present cause of action, and that the defendant is a non-resi- dent, and has property in the county. 2. At any time, where the suit is to recover specified personal property, on an affidavit as above, and stating the value of the property, or where the action is to recover damages for a wrong done, on affidavit stating the amount it is expected will be recovered, and that the defendant is removing his property, or the proceeds of his property, from the State, so that execution, if obtained, cannot be levied on it. 3. On complaint in any claim, showing that the defendant is removing his property out of the State. Arrest. Defendant may be arrested on an affidavit showing the cause of action, and that the defendant is about to quit the State. Garnishment is allowed on original attachment against any person hav- ing goods, effects, or credits of the defendant, or who is indebted to him, and also on writ qI fieri facias, on suggestion by the judgment creditor that there is a lien by such writ oi fieri facias on any third party as having prop- erty of the defendant. Judgment is a hen on real estate in every county from the time of dock, eting in such county, but it must be docketed within sixty days, or fifteen days prior to the purchase of such real estate from the debtor ; execution to issue within one year. The lien may always be enforced in a court of equity. If it appears to the court that the rents and profits of the property subject to the lien will not satisfy the judgment in five years, it may order the isrop- 740 ABSTRACT OF THE COLLECTION OF DEBTS. erty, or part of it, to be sold, and apply the proceeds to discharge the judgment. There is no stay of execution. Judgments bear interest at six per cent. Exemptions. To a housekeeper and the head of a family — i. Family Bible. 2. Family pictures, school-books and library for family use, to the value of one hundred dollars. 3. Seat or pew in church. 4. Lot in a bury- ing-ground. 5. Necessary wearing apparel, beds, bedding, and bedsteads, stoves and appendages put up, and necessary for the family, not exceeding three. 6. One cow, one horse, six chairs, one table, six knives, forks, and plates, one dozen spoons, two dishes, two basins, one pot, one oven, six pieces wood or earthen ware, one loom and appurtenances, one safe or press, one spinning-wheel, one pair of cards, one axe, two hoes, five barrels corn, five bushels wheat, or one barrel flour, two hundred pounds of pork or bacon, three hogs, forage or hay to the value of ten dollars, one cooking- stove and utensils, one sewing-machine, mechanic's tools and utensils, to the value of one hundred dollars. If the debtor is engaged in agriculture, one yoke of oxen, or pair of horses or mules, with the necessary gearing, one wagon or cart, two plows, one drag, one harvest cradle, one pitchfork, one rake, two iron wedges, a homestead of real estate or personal property to the value of two thousand dollars. WEST VIRGINIA.— Actions. The old forms of actions and writs are preserved, and actions are begun by service of summons returnable in ninety days. The assignee of a bond, note, or writing not negotiable, may sue in his own name. Attachment is allowed in actions for executed claim or debt on contract, or for damages for any wrong, on an affidavit on behalf of the plaintiff, stating the nature and amount of the claim, and, I. That defend- ant is a foreign corporation or non-resident. 2. That he has left, or is about to leave, the State with intent to defraud creditors. 3. That he so conceals himself that service cannot be had on him. 4. That he has removed, or is about to remove, his property from the State, with intent to defraud credit- ors. 5. That he has converted, or is about to convert, his property into money with intent to defraud creditors. 6. That he has assigned or disposed of his property, or is about to do so, with intent to defraud creditors. 7. That he has property or rights which he conceals. 8. That he fraudulently contracted the debt. Arrest. Defendant may be arrested and held to bail on an affidavit stating the nature and justice of the claim, and the amount, and, i. That defendant has removed, or is about to remove, his property from the State, with intent to defraud creditors. 2. That he has converted, or is about to convert, his property into money with like intent. 3. Or has assigned, dis- posed of, or removed his property, or is about to do so, with like intent. 4. That he has property or rights in action which he fraudulently conceals. 5. That he fraudulently contracted the debt. 6. That he is about to leave the State permanently. ABSTRACT OF THE COLLECTION OF DEBTS. 741 Garnishment. In the writ of attachment, the plaintiff may designate any third parties as having effects of the defendant in their hands, and such parties may be summoned as garnishees. Judgments bear interest at six per cent.; are liens on real estate in every county from the date of docketing in the county where the land is, and the lien continues for ten years, if execution is taken out within two years, but the judgment must be docketed within ninety days from the date of rendition, or before any deed from the debtor to a third party is delivered for record. A writ oi fieri facias is a lien on personal property from the time of delivery to the sheriff. Stay Law. In justices' courts, by giving bond with surety, stay of exe- cution is allowed as follows : Where the judgment, exclusive of interest and costs, does not exceed ten dollars, one month ; between ten and twenty dollars, two months ; between twenty and fifty dollars, three months ; over fifty dollars, four months. Exemptions. A homestead of the husband or parent, or of infant chil- dren of deceased parents, to the value of one thousand dollars, and per- sonal property to the value of two hundred dollars, the working tools of a mechanic, artisan, or laborer, to the value of fifty dollars, provided the whole amount of exemptions does not exceed two hundred dollars. ■WISCONSIN. — Actions. All distinctions have been abolished, and there is now but one form, which must be prosecuted in the name of the real party in interest, except in case of executors, administrators, and trustees, and which is begun by the service of a summons on the defendant, to be answered within twenty days. Arrest. Defendant maybe arrested, i. In an action to recover damages not on contract, where the defendant is a non-resident, or is about to remove from the State, or where the action is for injury to the person or character, or for injury to, or wrong taking, detaining, or converting property, or in an action to recover damages for property taken under false pretenses. 2. In an action for a fine or penalty, or for money received, or property embezzled, or fraudulently misapplied by a public officer or attorney, solicitor, or coun- sel, or officer of a corporation as such, or factor, agent, or broker, or for misconduct or neglect in official or professional employment. 3. In an action to recover property unjustly detained, where it is so concealed that the sheriff cannot find the same. 4. Where the defendant was guilty of fraud in contracting the debt, or in concealing or disposing of the property for the taking, detaining, or disposing of which the action is brought. An afiidavit must be made on the part of the plaintiff, stating the cause of action, and one of the above causes. Attachment is allowed on an affidavit that the defendant is indebted to plaintiff, and stating the amount, and that it is due on contract, and, i. That defendant has absconded, or is about to abscond, or is concealed to the injury of his creditors. 2. That defendant has assigned, disposed, or concealed his property, or is about to do so, with intent to defraud creditors. 3. That the 742 ABSTRACT OF THE COLLECTION OF DEBTS. defendant has removed, or is about to remove, his property from the State, with intent to defraud creditors. 4. That the debt was fraudulently con- tracted. 5. That he is a non-resident. 6. Or a foreign corporation. 7. That he has fraudulently conveyed or disposed of his property with intent to defraud creditors. The amount sued for must exceed fifty dollars. Garxishmext is allowed on an affidavit on behalf of the creditor, that he believes that any third person (naming him), has property, effects, or cred- its of defendant, or is indebted to him, also on execution, on a similar affi- davit. Judgment is a lien on real estate in the county where rendered from the date of docketing, and in other counties from the time of filing a transcript, and the lien continues for ten years. It bears interest at seven per cent., or as high as ten per cent, if stipulated for in the contract. Stay Laws. In justices' courts, on giving bond with surety within five days after judgment was rendered, stay of execution is allowed as follows: On sums not exceeding ten dollars, exclusive of costs, one month ; between ten and thirty dollars, two months ; between thirty and fifty dollars, three months ; over fifty dollars, four months. Exemptions. A homestead not exceeding forty acres, used for agricul- ture, and a residence, and not included in a town plat, or a city or village, or, instead, one quarter of an acre in a recorded town plat, city, or village. Also, I. Family 1 ible. 2. Family pictures, and school-books. 3. Private library. 4. Seat or pew in church. 5. Right of burial. 6. Wearing apparel, beds, bedsteads and bedding, kept and used in the family, stoves and appur- tenances put up and used, cooking utensils and household furniture to the value of two hundred dollars, one gun, rifle, or fire-arm to the value of fifty dollars. 7. Two cows, ten swine, one yoke of oxen, and one horse or mule, or in lieu thereof, a span of horses or mules, ten sheep and the wool there- from, necessary food for exempt stock for one year, provided or growing, or both, one wagon, cart, or dray, one sleigh, one plow, one drag, and other farm utensils, including tackle for the teams to the value of fifty dollars. 8. Provisions and fuel for the family for one year. 9. Tools and implements, or stock-in-trade of a mechanic or miner, used and kept, not exceeding two hundred dollars in value, library and implements of a professional man, to the value of two hundred dollars. 10. Money arising from insurance of exempt property destroyed by fire. II. Inventions, for debts against the inventor. 12. Sewing-machine. 13. Sword, plate, books, or articles presented by Con- gress, or legislature of a State. 14. Printing materials and presses to the value of fifteen hundred dollars. 15. Earnings of a married person neces- sary for family support, for sixty days previous to issuing process. LIENS OF MECHANICS AND MATERIAL MEN. 743 CHAPTER XXXVI. THE LIENS OF MECHANICS AND MATERIAL MEN FOR THEIR WAGES AND MATERIALS. In nearly all our States there are now some provisions for securing to mechanics, and to persons supplying materials (who are called " material men "), their wages and pay for their mate- rials, by means of liens, as they are called in law. A lien is a hold upon or a valid claim against property. This means that every mechanic employed upon a house, and, in most of the States, upon a vessel, and in ;.ome upon any property whatever, as a railroad or canal, either in the construction or repair of it, has a lien upon the property on which he has labored or for which he has supplied materials, for the amount of his wages and the price of his materials. This lien or claim he has for a certain time ; and during that time he may either sue for his wages, and make an attachment of the property, or, in some States, file a petition with the proper court; and in either may have the property sold to pay his wages, unless the owner redeems it. The reason of these precautions is obvious enough. The purpose of the law is to assist and protect the mechanic, or material man, but not to enable him to commit a fraud or do an injury to his neighbors. And it would be an injury to a man to let him buy a house and pay full price for it, and then tell him that the mechanics who built it had a lien (which is much the same in effect as a mortgage) upon the house, without his know- ing anything about it. And it would be an injury to an owner, who had contracted with the master-workman to repair or change his house at great expense, to settle with this master workman in due time, and pay him the full amount of his bill, without any notice to the owner that he was under an obliga- tion to pay again for all the labor spent upon his house, or let the house go on execution. Of all these laws for the recovery of debts, and the enforce- 744 LIENS OF MECHANICS AND MA TERIAL MEN. ment of the liens of mechanics, the provisions now in force are quite recent. Only of late years has imprisonment for debt been greatly mitigated or removed, and the trustee or garnishee process made what it now is, exceedingly convenient and useful. The homestead law and the lien law, though now so widely spread, are a modern invention, or, at least, of modern intro- duction. One effect of this recent origin is, that important practical questions still exist as to their construction, applica- tion, and effect, which only time can solve. I give, annexed to this chapter, an abstract of the Laws of all the States relating to Mechanic Liens. In this chapter nothing more has been attempted than, First, to give a general and accurate view of all those principles of the laws relating to creditor and debtor which are now generally agreed upon, and may be regarded as probably permanent. Secondly, to indicate distinctly to the mechanic what rights he may possess and what securities he may hold, and how he may lose the rights and securities he possesses, and to the owner or buyer what liabilities he may incur, unless the one and the other take the proper course which the law has provided for their safety. The forms to be used under the lien laws are not prescribed by statute. Those given below are in use in some of our principal cities ; and the same, in substance, would be suitable anywhere. (263.) A Notice under Mechanic's Lien Law. {To be filed with the Clerk of the County^ To J Esquire, Clerk of the City and County of Sir, Please to take Notice, That I, residing at No. Street, in have a claim against amounting to the sum of due to me, and that the claim is made for and on account of {here state the work or materials) and that such work was done in pursuance of (Jiere describe the contract) which building is owned by situated in the ward, of the city of on the side of Street, and is known as No. The following is a diagram of said premises (or, the said premises being described as follows). RELEASE AND DISCHARGE OF A MECHANICS LIEN 745 And that I have and claim a lien upon said house or building, and the appurtenances and lot on which the same shall stand, pursuant to the pro- visions of an act of the Legislature of the State of to secure the payment of mechanics, laborers, and persons furnishing materials towards the erection, altering, or repairing of buildings. Dated, this day of 18 {Signature^ County of 'ss. City of (The name of the ;party claiming the lien) being duly sworn, sayn, that he is the claimant mentioned in the foregoing notice of lien, tliat he has read the said notice and knows the contents thereof, and that the same is true to his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true. Sworn to before me, this day of 18 ' (364.) A Bill of Particulars of Mechanic's Claim. (To be served on Owner ^ A Bill of Particulars Of the amount claimed to be due from for and on account of (work or materials) and that such work was done (or materials furnished) in pursuance of (state the contract or order) which building is owned by situated in the ward of the city of on the side of Street, and is known as No. of said street. (Signature of Claimant^ To (name of owner.) (Date.) (265.) A Release and Discharge of a Mechanic's Lien. I do Hereby Certify, That a certain mechanic's lien, filed in the ofHco of the clerk of the county of the day ol one thousand eight hundred and at o'clock in the noon, in favor of claimant against the building and lot, situate side of street, and known as No. in said street, whereof is owner, and is contractor, is discharged. (Signature^ ss. On the day of 6ne thousand eight hundred and before me came who is known to me to be the individual described in, and who executed the above certificate, and acknowledged that he executed the same. 746 LIENS OF MECHANICS AND MA TERIAL MEN. (266.) Release and Discharge of a Mechanics' Lien— another Form. Whereas, We, the subscribers, have erected and furnished materials for erectino- on lot or piece of ground situate And have agreed to release all liens which we, or any or either of us have, or might have, on the said by reason of materials furnished, or work performed, for erecting the same. Now these presents witness, that we, the subscribers, for and in consideration of the premises, and of the sum of one dollar, to each of us at or before the sealing and delivery hereof by the said well and truly paid, the receipt whereof we do hereby acknowl- edge, have remised, released, and forever quit-claimed, and by these presents do remise, release, and forever quit-claim unto the said and to his heirs and assigns, all and all manner of liens, claims, and demands what- soever, which we, or any or either of us, now have, or might or could have, on or against the said and premises, for work done, or for mate- rials furnished, for erecting and constructing the said building, or otherwise howsoever. So that he, the said and his heirs and assigns, shall and may have, hold, and enjoy, the said and premises, freed and discharged from all liens, claims, and demands whatsoever, which we, or any or either of us now have, or might or could have, on or against the same, if these presents had not been made. In "Witness Whereof, We have hereunto set our hands and seals the day of the date written opposite our respective signatures. {Date.) {Witnesses at sv^tiing.) {Signatures of Claimants.) ABSTRACT OF THE LAAVS OF ALL THE STATES RELATING TO MECHANICS' LIENS. ALABAMA. — Every mechanic or other person who performs any work or labor, or furnishes any materials or fixtures, erection, or improvement on land, or does any repairing on the same by virtue of a contract, has a lien on such building or improvement, and upon the land on which it is situated, to the extent of one acre. The original contractor within six months, and any laborer within thirty days, must file with the judge of probate a state- ment of the account and description of the property, and action must be brought to enforce the lien within ninety daj-s from such filing. ARKANSAS. — A mechanic or other person performing any work or labor, or furnishing any material or fixture, erection, or improvement on land, or doing any repairing on the same by virtue of a contract, has a lien on such building or improvement, and upon the land on which it is situated. He must file with the clerk of the circuit court of the county where the land is, within ninety days after ceasing to labor, a just and true account of the claim, and description of the property, and suit must be begun within nine months thereafter. ABSTRACT OF MECHANICS' LIENS. -j^-j CALIFORNIA.— Every person performing labor upon, or furnishing materials to be used in the construction, repairing, or altering any structure, has a lien on the same for his services. The land, or the owner's interest therein, is also subject to the lien, and every original contractor within sixty days from the time of completing his contract, and every other person within thirty days, must file with the county recorder a claim, stating his demand, the owner of the property, employer, and the property on which the lien is claimed, and suit must be begun within ninety days from the date of filing the claim. COLORADO. — A Hen is allowed on personal property to the person making, altering, or repairing the same, and if it is not paid in ninety days after the worl: is done, it may be appraised and sold. Any person jjerform- ing work, or furnishing materials to the amount of twenty-five dollars on any building by virtue of a contract, ha^a lien on the same, and he must, within forty days, file a statement in the county recorder's office containing a notice that he claims such lien, a description of the property, and an abstract of the indebtedness, and the action to enforce the lien must be brought within six months. COUDrECTICTTT. — A lien is allowed on every building, in the construc- tion or repairing of which any person has a claim for labor or materials ex- ceeding twenty-five dollars. The lien is dissolved unless within sixty days after ceasing to labor or furnish materials, such person files with the clerk of the town where the building is; a certified description of the premises, the amount of the lien, and an account of the claim, the same being subscribed and sworn to. DELAWARE. — A lien is allowed to any person furnishing materials or labor or both, to the amount of twenty-five dollars, on any building in pursu- ance of a contract. The original contractor must file a statement not sooner than sixty or later than ninety days after completion of the building, and other persons within sixty days. The statement must contain the names of the party claimant, and owner, and contractor, the amount claimed, and I a bill of particulars of the work done, the time when the work was done, the local- ity of the building, and a description thereof. FLORIDA. — Master builders and mechanics have a lien on all build- ings on which they have done work, but to be enforced it must be, firs t, that the contract is reduced to writing and signed by the parties making the same ; and, second, that the amount is liquidated and a net balance struck in favor of the person doing the work or furnishing materials. All con- tracts entered into, liquidated, or net balance struck, must be recorded in the county where they are to be executed, within thirty days. There must be filed in the office of the clerk of the circuit court for the county, within six months after doing the work" or furnishing materials, a just and true account of the demand, and a description of the property. All liens are dissolved unless suit is brought within twelve months after the work is finished. 748 LIENS OF MECHANICS AND MATERIAL MEN. GEORG-IA. — All mechanics and persons doing any work on a building, or furnishing any materials or machinery, have a lien on the same ; but there must be a substantial compliance with the contract, and the claim must be recorded within thirty days after the work is done, in the office of the clerk of the superior court for the county where the property is situated, contain- ing a description of the property and of the demand. Action to enforce a lien must be begun within twelve months after tlie claim is due. Mechanics and laborers also have a hen on personal property for work done in manu- facturing or repairing the same, which is enforced by retaining the property, but is lost on delivering it up. ILLINOIS. — Any person who by contract, expressed or implied, fur- nishes labor or materials as architect, builder, or workman on any building, has a lien on the same. But there is no lien if, in the contract, the time for the completion is fixed more than thre^years from commencement of the work, or if the time of payment is more than one year from the time stipu- lated for the completion of the work. Suit to enforce the lien must be begun within six months after completion of the work. INDIANA. — Mechanics and all other persons performing labor or fur- nishing materials or machinery, on any building whatsoever, have a lien on the same. It must be in pursuance of a contract; and to secure the lien, a notice of the claim must be filed in the record office of the county where the building is, within sixty days after completion of the building or repairs. Suit may be begun to enforce the same within one year. A me- chanic or tradesman has a lien on any personal property for work done, and may sell the same if completed and not paid for within six months after the claim becomes due. IOWA. — Mechanics and other persons who do any work, or furnish materials by virtue of a contract on any building or improvement, have a lien on the buildings and the land on which they are. To avail them- selves of such lien, there must be filed i>\ the office of the clerk of the court for the county where the building is, within ninety days after the work is done or the materials furnished, a true account of the work done, and a description of the property, and suit must be begun within two years. KANSAS. — Mechanics, artisans, and 'tradesmen have a lien on all articles constructed and repaired by them, and if the same be completed and not taken away, and the fair charges on the same not paid, the properly may be sold at any time after three months. Any mechanic or other person who shall furnish, under contract, any labor or materials for erecting, altering, or repairing any building or appurtenance, or any machinery or fixtures in the same, or plant or grow any trees, vines, hedges, etc., or shall build a stone or other fence, shall have a lien on the buildings, land, and appurtenances. Sub-contractors must file a statement of their account with the clerk of the District Court for the county within sixty days after the completion of the buildings, etc., or the furnishing the labor or materials. Other workmen must file such an account within four months, and all actions ABSTRACT OF MECHANICS' LIENS. 749 to enforce liens must be begun within one year after completion of the work. KENTUCKY. — Any person who performs any labor or furnishes any material, or fixtures, or machinery in the erection, alteration, or repair of any structure, or who makes any excavation or improvement in any manner on real estate, by a contract with, or written consent of the owner, has a lien on the building and land ; and within sixty days after ceasing to labor or furnish materials, he must file in the office of the clerk of the court for the county where the building is, a statement of the amount due, a descrip- tion of the property, and the name of the owner, and also whether the work was done or the materials furnished by contract with the owner or with a contractor or sub-contractor. Actions to enforce the lien must be begun within six months after filing such account. liOUISIAHA. — Liens in this State are known as privileges. Architects, contractors, and all persons who are employed in constructing or repairing any building, and all persons who have supplied the owner, agent, or sub- contractor with materials to be used on any building, have a lien- and privilege on the buildings and lot of land not exceeding one acre. The privilege must be recorded with the register of privileges in the parish where the property is, the act containing the bargain made, or a statement of the account. MAIITE. — Any person performing or furnishing labor or materials in erecting, altering, or repairing any house, building, or appurtenance by virtue of a contract with, or by consent of the owner, has a lien on the building and land on which it stands. If the labor or materials are not furnished by contract with the owner, he may prevent the lien for such labor or materials not yet furnished, from attaching, by giving written notice that he will not be responsible for the same. The lien is dissolved, unless, within thirty days after ceasing to labor, the claimant shall file in the office of the town clerk where the building is, a true statement of the account, a description of the property and the owner's name, and suit must be begun within ninety days after the last labor was performed or materials furnished. MAB.YI1AND. — Every building, machine, wharf, or bridge erected, and every building, machine, wharf, or bridge repaired, or improved to the extent of one-fourth of its value, is subject to a Hen for the payment of all debts contracted, or work done or materials furnished for or about the same. If the contract be made with anyone but the owner, the claimant must within sixty days after furnishing the work or materials, give notice in writing to the owner, and must within six months file a statement of his demand in the office of the clerk of the Circuit Court for the county where the property is. The lien continues for five years. The counties of Kent, Charles, Calvert, and St. Mary's are not included in the number of those to which the lien laws apply. MASSACHIXSETTS.— Any person to whom a debt is due for labor per- formed or furnished, or for materials furnished and actually used in the 750 LIENS OF MECHANICS AND MATERIAL MEN. erection, alteration, or repair of any building or structure upon real estate, by virtue of an agreement with, or by consent of the owner thereof, or any person having authority from the owner, has a lien on the property and land for his charges. Unless the labor or materials were performed or furnished by contract with tlie owner, he may prevent any lien from attach- ing, for work or materials not already performed or furnished, by giving written notice to the person performing the labor or furnishing the materials that he will not be responsible for the debt. Any one having an interest in the property claimed may release the same by giving a sufficient bond. Liens are dissolved, unless the claimant, within thirty days after ceasing to work, files in the registry of deeds for the county or district where the prop- erty is situated, a true statement of the account, together with a description of the property and the owner's name; and suit to enforce the lien must be begun within ninety days after ceasing to work or furnishing materials. MICHIGAN. — Every person who, by contract, furnishes labor or ma- terials for the construction of a building, or wharf, or of any engine, machinery, or appurtenance on land, has a lien on such building, wharf, or machinery and appurtenances ; but he must file with the register of deeds for the couhty where the lands lie, a certificate containing a copy of the contract, if in writing, or else a statement of such contract, a description of the property and the amount due ; and suit to enforce the lien must be begun within six months after ceasing to labor. MINNESOTA. — Whoever performs labor, or furnishes materials or machinery for erecting, altering, or repairing any building or appurtenance, or in constructing, altering, or repairing any boat or vessel by virtue of a contract or agreement, has a lien on the same, and on the land on which the buildings are, not exceeding forty acres, or if in a city or town, the lot on which the building is, not exceeding one acre. The claimant must make an account in writing, of the work done or materials furnished, v/ithin one year after furnishing such work or materials, and file the same in the register's office for the county where the work was done, and by virtue of the same the lien is extended one year more. Whoever makes, alters, or repairs any personal property has a lien on the same, and may retain possession of the property until his just and reasonable charges are paid, and if not paid within three months, the property may be sold. MISSISSIPPI. — Every building, bridge, or addition to any fixed machinery or gearing, or fixtures for manufacturing purposes, every boat or water-craft, and every paling or enclosure is liable for the payment of any debt contracted and owing for labor performed or materials furnished about the erection, alteration, or repair of the same, and the debt is a lien on the building or structure and the land on which it is. The lien takes effect from the time of filing the contract in the office of the chancery clerk for the county where the land is, or from the commencement of suit to enforce it, and such suit must be begun within six months after the money claimed is due and payable. MISSOTTKI. — Every person performing any work or furnishing any ABSTRACT OF MECHANICS' LIENS. 751 materials, fixtures, engines, boilers, or machinery for any building, erection, or improvement on land, or for repairing the same, has a lien for his services on the building and land belonging to the owner on which the building is to the extent of one acre. Every original contractor within six months. Every journeyman and day laborer within thirty days, and every other person within four months, must file with the clerk of the circuit court for the county where the property is, a true account of his demand, a description of the property and the owner's name, and action to enforce the lien must be begun within ninety days after filing such account. NEBRASKA. — All persons performing any labor or furnishing any materials or machinery, for erecting, repairing, or removing any building or appurtenance by virtue of a contract with the owner or his agent, have a lien to secure payment for the same, on the building or appurtenance and lot on which it stands. The claimant must make an account in writing, and within four months from the time of doing the work or furnishing the materials, must file the same in the ofiice of the clerk of the county where the work was done, and the lien continues for two years. NEVADA. — Every person performing labor upon, or furnishing ma- terials of the value of twenty-five dollars to be used in constructing, altering, or repairing any building, railroad, tramway, toll-road, canal, water ditch, fence, or any other structure, or who performs labor on any mining claim, has a lien on the same for his vy^ork, labor, or materials, if done at the instance of the owner or his agent. The land occupied by the building, structure, or , improvement is subject to the lien. Original contractors within sixty days, and all other persons within thirty days, after the completion of the building, improvement or strv.cture, or alteration of the same, must file in the record office for the county where the land is, a statement of the demand, the owner's name and description of the property. Suit must be begun within six months after filing the claim. NEW HAMPSHIRE. — Any person who, by himself or others, performs labor or furnishes materials to the value of fifteen dollars or more, for erect- ing, altering, or repairing a house, or other building or appurtenance, by virtue of a contract with the agent, contractor, or sub-contractor, may have a lien on the same, on giving notice to the owner or person having charge, that he intends to claim such lien, the same to be secured by attachment, and to continue ninety days. Lumberers and railroad contractors have a like lien, to continue sixty days. NEW JERSEY.— Every building constructed, erected, or repaired, and machinery or fixtures put into any building, are liable for the payment of all debts contracted and owing to any person for labor performed or materials furnished for the erection or repair of such building, machinery, or fixtures. But if the work was done by contract, the building is liable to the contractor alone, provided the contract, or a copy, is filed in the county clerk's office, before any work was done or materials furnished. The claimant must, within one year after performing the labor or furnishing the materials, file in the ofiice 48 752 LIENS OF MECHANICS AND MA TERIAL MEN. of the county clerk a statement containing a description of the building, the owner's name, and the name cf the person contracting the debt, the time of beginning the work, and a bill of particulars, and a suit must be brought within the j-ear. NEW XOKII. — Contractors, laborers, and others, v/ho furnish labor or materials in erecting or improving any building, by virtue cf a contract with the owner or his agent, have a lien on the premises to secure the payment of their claim. A specification of the claim, a copy cf the contract, if there is one, must be f.led from tv.o to three months after ceasing to worker furnish materials, and suit begun within a year after such time. The law differs slightly in the various counties. NOETH CArXX-IlTA.— Every building built, rebuilt, repaired, or im- proved, together v.'ith the lot on which the building is, and every lot, farm, or vessel, or any kind of property not enumerated, is subject to a lien for the payment of all debts contracted for work or materials furnished about the same. Claims under two hundred dollars may be filed in the office of the nearest magistrate. Claims over two hundred dollars are to be filed in the office of the clerk cf the Superior Court for the county where the work was performed. Notice must be f.led within thirty days after completing the work cr furnishing the materials. l\Iechanics and artisans have a lien on personal property made or repaired by them, and they may retain possession of the property. If their charges are not paid within thirty days, if the value of the article does not exceed fifty dollars, or ninety days if the value is over fifty dollars, they may proceed to sell the property. OHIO. — Any person performing any labor, or furnishing any materials or machinery for the construction, alteration, or repair of any vessel or water- craft, any building cr appurtenance, bridge, or other structure, by virtue of a contract, has a lien on such structure and the owner's interest in the land on which it stands. He must file an account cf his work or materials per- formed or furnished, and a copy of the contract, if it was in writing, in the recorder's office for the county within four months after doing the work, and suit must be begun within one year. OBEGOW. — Any person who, by virtue of a contract with the owner or his agent, performs any labor, or furnishes any materials, engines, or machinery for the construction or repair of any building, has a lien on the building and lot on which it stands for his pay, provided the amount exceeds twenty dollars. He must file in the office of the county clerk, Avithin three months after the completion of the building or repairs, a notice of his inten- tion to claim alien, and specifying the amount due, and the property. Suit to enforce the lien must be brought within one year. Mechanics and artisans have a lien on personal property made or repaired by them, and if their charges are not paid in three months, they may sell the property. PENNSYLVANIA.— All buildings, wharves, fixtures, engines, machin- ery, etc., erected, repaired, altered, or added to, are subject to a lien for the payment of all debts contracted for work done or materials furnished about ABSTRACT OF MECHANICS' LIENS. 753 the same. The lien extends to the land on which the structure is. The claimant must file in the office of the Prothonotary of the Court of Common Pleas for the county where the property is, a statement containing the names of the claimant, owner, and contractor, the amount and nature of the claim, and a description of the property, within six months, and suit may be brought at any time within five years. BHOBE ISIiANB. — Every building, canal, turnpike, railroad, or other improvement erected or repaired by contract with, or consent of, the owner, is subject to a lien for all work done or materials furnished in the construc- tion or repair of the same. If the work was done under a written contract, suit must be begun within four months from completion of the work ; if not, within six months from the beginning of the same. The commencement of legal process is by lodging the account or demand, specifying the buildings and owner, in the office of the town clerk for the town where the prop- erty is. SOUTH CABOLIITA.— Any person to whom a debt is due for labor performed or materials furnished and actually used in the erection, altera- tion, or repair of any building or structure on real estate, by virtue of a contract with, or consent of, the owner or his agent, has a lien on the build- ings and land for his pay. The lien for materials furnished does not attach unless, before furnishing the same, the claimant gives notice to the owner, who is not the purchaser, that he intends to claim a lien. If the owner is not the contracting party, he may prevent any lien from attaching, by giving written notice that he will not be responsible for the debts of the contractor. The claimant, within thirty days after ceasing to labor, must file in the office of the clerk of the Court of Common Pleas, a statement of his account, a description of the property, and the owner's name, and suit must be begun within ninety days after ceasing to labor. TENNESSEE. — There is a lien on any lot of land upon which a house has been built or repaired, or fixtures or machinery furnished or erected, or improvement made by special contract with the owner or his agent in favor of all persons doing any work or furnishing any materials on or about the same. The lien includes the buildings on the land, and continues for one year after completion of the work. Sub-contractors and workmen must, at the time of beginning to work, give notice to the owner of their intention to claim a lien. TEXAS. — Master-builders, and mechanics of all kinds, contracting in writing to erect buildings of every description, have a lien in the nature of a mortgage on the buildings and land. Every contract so entered into is to be recorded in the office of the clerk of the county where the building is, within thirty days. All persons doing any work or furnishing any materials on any such building, may, if their work or materials are not paid for, deliver to the owner a copy of their account, and he is then authorized to retain enough to pay them out of the amount due the contractor. VERMONT. — Any person performing any labor or furnishing any mate- 754 LIENS OF MECHANICS AND MATERIAL MEN. rials for building, repairing, fitting, or furnishing any ship, vessel, or steam- boat, has a lien on the same for eight months after completion of the same. His claim must be due, and he must demand payment of the same. When any contract is made, in writing or otherwise, for the erection, repair, or alteration of any building, or for furnishing any materials about the same, the person proceeding under the contract has a lien on the house and land, which continues for three months after payment of the claim is due ; but the claimant must file in the clerk's office of the town where the building is, a memorandum showing his claim. VIKGIWIA. — If any person having any interest in land shall make a written contract with any person to pay him money for erecting or repairing any building on such land, there shall be a lien on the whole property for the money, but suit to enforce the same must be begun within six months. All persons furnishing any work or materials about the same, have the lien. A general contractor must, within thirty days after completion of the work, file in the clerk's office for the county where the property is, a true account of his work, and a statement of his intention to claim a lien. Sub-contract- ors or workmen must give notice to the owner of the labor or materials to be performed or furnished, and within ten days after completion of the work furnish a true account of the amount unpaid. "WEST VIRGINIA. — Every person who shall perform any work or labor, or furnish any materials in the construction, alteration, or repair of any house, building, or appurtenance, by virtue of a contract with the owner or his agent, has a lien on the buildings and land for his pay. He must, within thirty days after the ceasing to labor or furnish materials, file with the clerk of the court for the county where the property is, a true account of the amount due, a description of the property, and the owner's name. Sub-con- tractors must give notice to the owners that the contractors are indebted to them, and the owners may reserve sufficient to pay them. Suit to enforce the lien must be begun within six months. WISCONSIN. — Every building constructed, erected, repaired, or re- moved, machinery erected so as to become a fixture, and the land on which the same is, not exceeding forty acres, or, if in a town or village, the lot on which such building stands, is subject to the payment of debts contracted for work or materials furnished by any person. If such work was done under a contract with the owner or agent, no person who has done work for the contractor can claim the lien, unless within thirty days after doing such work he give written notice to the owner or his agent that he was employed by the contractor, and that he intends to claim a lien. Suit to enforce the same must be begun within one year. Personal property may be held for six months, and then sold, if charges on the same are not paid. WILLS. 755 CHAPTER XXXVII. OF THE DISPOSAL OF PROPERTY BY WILL. SECTION I. OF WILLS. Few persons are aware how very difficult it is to make an unobjectionable will. There is nothing one can do, in reference to which it is more certain that he needs legal advice, and that of a trustworthy kind. Eminent lawyers, not practised in this peculiar branch of the law, have often failed in making their own wills, both in England and in this country. And there are seldom blank forms for wills printed and sold, as there are for deeds and leases. Nevertheless, it may happen that one is called upon to make his own will, or a will for his neighbor, under circumstances which do not admit of delay ; or he may have some interest in the will of a deceased person, and questions may have arisen, which some knowledge of legal principles will answer. We shall try to state here what may be of use in such cases ; and shall append a form for a will. Any person of sound mind and proper age may make a will. A married woman cannot, unless in relation to trust property, whereof the trust or marriage settlement reserves to her this power ; or the statute law of her State gives it, as is the case now in many States. One must be of full age in order to devise real estate. But in most of our States minors may bequeath personal property ; and a frequent limitation of the age for such bequest is eighteen years for males, and sixteen years for females. The testator should say distinctly, in the beginning of the instrument, that it is his last will. If he has made other wills, it is usual and well to say, " hereby revoking all former wills ; " but the law gives effect to a last will always. It should close with the words of attestation : " In witness whereof, I have hereunto signed and sealed this instrument, and published and declared the same as and for my last will, at J.56 THE DISPOSAL OF PROPERTY BY WILL. on this day of ." Then should follow the signature and seal ; for this latter, although not always required by law, is usually and properly affixed. The witnessing part is very material. The requirements in the different States are not precisely alike ; but they are all in- tended to secure such attestation as will leave the fact of the e.xecution of the will, and its publication as such, beyond doubt. In a very few States, it is enough if the signature be proved by credible witnesses, although there be no witnesses who sub- scribed their names to the will. In many, two subscribing wit- nesses are enough. It is so in the provinces of the Dominion of Canada, generally. But in some States it is necessary, and in all I recommend, that the testator should ask tlircc disinter- ested persons to witness this will ; and should then, in their presence, sign and seal it, and declare it to be his will ; and they should then, each in the presence of the testator and of the other witnesses, sign his name as witness. See the Abstracts at the close of this chapter. Each should see the execution which he says he witnesses ; and the signing by the witnesses should all be seen by the testa- tor ; but the law is satisfied if the thing is done near the testa- tor, and where he can see if he chooses to look. If the testator is too feeble to write his name, let him make his mark ; and for this purpose any mark is enough, although a cross is commonly made. So, if a witness cannot write his name, he may make his mark ; but this should be avoided if possible. Over the witnesses' names should be written their attesta- tion ; and any alteration in the will should be noticed. If the attestation be in the following words, it will be safe in any part of this country : "At on this day of the above- named signed and sealed this instrument, and pub- lished and declared the same as and for his last will ; and we, in his presence, and at his request, and in the presence of each other, have hereunto subscribed our names as witnesses." Witnesses should be selected with care, where that is possi- ble ; for if any question arises about the testator's sanity, or anything of the kind, their evidence is first to be taken, and is WILLS. 757 very important. But any persons competent to do ordinary acts of business may be witnesses. Nor do the usual qualifica- tions for business apply. Thus, married women and minors may be witnesses of wills. But no person should be called upon to witness a will who is a legatee, or an executor, or otherwise interested in the will. If such a person were a witness, it might not avoid the will ; but a legatee would lose or be obliged to renounce his legacy ; and, generally, it might lead to unintended results. What was said in relation to deeds, of witnesses remem- bering, etc., or proof of handwriting in case of their death or absence, is true also of wills. As to the body of the will, the testator must express his wishes as clearly and accurately as possible ; and, unless he has good legal advice, he should make the disposition of his property as simple as possible. The word " bequeath " applies, properly, to personal estate only ; the word "devise," to real estate only. It is safe enough to begin, " I give, bequeath, and devise my estate and property, as follows : that is to say," — and then go on and tell what shall be done with this and that piece of property, or sum of money. Words of inheritance should be added to any devise of land (if not intended for the life of the devisee only), as was said in reference to deeds ; although they are not required in wills so peremptorily as in deeds. The words of inheritance are, — To A B "and his heirs." If it is intended, as usually is the case, that the will should apply to all the real estate possessed by the testator at the time of his death, although purchased after the will is made, there should be a clause expressing this intention. If children are not provided for in a will, the law sometimes presumes they were forgotten ; and it gives to any such child the same share as if there were no will, unless the omission is explained in the will, or by evidence, and shown to have been intentional. If the child were provided for in the lifetime of the father, the law, generally, would not presume that the child was forgotten ; it is best, however, to guard against any question of the kind, by saying that the omission to give to the child any- thing is intentional. 758 THE DISPOSAL OF PROPERTY BY WILL. A testator should always name his executors ; but the will is perfectly good without any executor being named, for the court of probate will appoint an "administrator with the will annexed." If the testator desires that his executor or trustee should not give bonds, he should say so distinctly in his will. Nuncupative wills are wills made by word of mouth. Olographic wills are wills written entirely by the testator's hand. In the provinces of the Dominion of Canada, generally the laws as to the construction, effect, and execution of a will are the same as in the United States : the principal difference being that, in the Province of Quebec, the French rule prevails, and an olograph will is valid without witnesses. SECTION II. A CODICIL is a little additional will. That is, it is a testa- mentary disposition, not revoking the former will, but varying it in some way, or making changes in it. There can be but one will, and that the last ; but there may be any number of codi- cils, all valid. The changes made by a codicil in a will, or in former codicils, should be very distinctly stated ; and some words like these should be used : " I hereby expressly confirm my former will, dated * excepting so far as the disposi- tion of my property is changed by this codicil." And the cod- icil should be called, at the beginning and end, a codicil, and executed and witnessed in the same manner as a will. If a codicil gives one a legacy, who has already one by the will, the codicil should state whether it gives the second legacy instead of the first, or in addition to it. And if advances are made to a child during life, there should be an indorsement on the will (but a statement in the will or codicil would be better), stating whether these advances are to be charged to him, and in what way, whether with interest, etc. RE VOCA TION OF WILLS. 755 SECTION III, REVOCATION OF WILLS. The law concerning the revocation of a will is quite nice and technical. A codicil, we have seen, does not revoke, and a new will does. So might tearing off the name ; but then the question might come, who tore it off .' It is better to leave nei- ther this nor any other question : and therefore to destroy a will which it is intended to revoke. If the will is out of the testator's reach and power, and so cannot be destroyed, it would be best to make a new will, revoking the old one ; which any tes- tator can always do. A will is revoked by the operation of law, if the testator afterwards marry and have a child. If the testator, after this, intends that his will shall take effect, he should expressly con- firm it ; and the correct way to do this would be by making a new will. If he leaves anything to his wife, and intends that she should have it instead of dower, or of the additional rights which recent statutes in some of the States have given her, he should say so. And then she will not have both, but may choose between the provision of the law and that of the will, taking whichever she prefers, and leaving the other. For the rights of the wife or widow in the several States, I refer back to the abstract of the statutes of the several States, in Chapter V. Annexed to this chapter is an abstract of the laws of all the States relating to wills. It is impossible to do more than to give such forms and rules as will be applicable to all wills, and enable any person to draw a simple will with safety. No one can express accurately provisions for trust estates, remainders, executory devices, etc., without knowing the law on these subjects, — and this is an extensive and difficult department of the law. All that is necessary, and may be relied upon as generally sufficient, is as follows : 76o THE DISPOSAL OF PROPERTY BY WILL. (267.) Form of a 'Will. I, of {place and occupation), make this my last will. I give, devise, bequeath my estate and property, real and personal, as follows, that is to say : Then follow all the provisions and disposition of property which the testator intends, stated fully, plainly, and as accu- rately as possible, paying due regard to the rules and prin- ciples laid down in the chapter of this book on this subject. And if these provisions are carefully presented in distinct and intelligible language, the courts will generally supply whatever of technicality is wanting. Then follows, first, the appoint- ment of an executor, and then the execution, and finally the declaration of the witnesses, thus : I appoint {name, residence, and occtipatioii) executor {or executors if more than one be desired) of this my will. In witness whereof, I have signed and sealed and published and declared this instrument as my will, at {place), on {date). (Signature.) {Seal.) The said at said {place), on said {day), signed and sealed this instrument, and published and declared the same as and for his last will. And we, at his request, and in his presence, and in the presence of each other, have hereunto written our names as subscribing witnesses. {Here follow the names of three witnesses.) A codicil should be written thus : I, of {place and occupation), do make this my codicil, hereby confirming my last will made on the {date of the i^'/ll), and all my former codicils {if there be any), so far as this codicil is consistent therewith ; and do hereby — Then follows whatever disposition the testator chooses to make, stating and describing it as he would if it were a will, and executing it, and having it attested in the same manner as if it were a will, excepting that, instead of calling it a will, wherever that word occurs, he says, "codicil" instead of "will." If he gives in his will or codicil a legacy to a woman, it is generally best to add "this legacy (or bequest) to be for her sole and separate use, independent of her husband, at all times. FORMS OF WILLS. 761 (2G8.) Copy of a fuller Form of a "Will. Bo it Remembered, That I, of the city of in the State of Esquire, do make this my last will and testament, in maimer following. That is to say, — I order and direct that all my just debts shall be paid with convenient speed. I give unto Mr. of said city, merchant, the amount of moneys due and owing from him to me, according to the tenor and effect of four promissory notes signed by him, viz : one dated October 16, 1819, for ninety- six hundred and eighty dollars ; one dated August 9, 1S22, for five thousand dollars ; another dated August 9, 1822, for forty-five hundred and fifty-eight ■^^^ dollars ; and another dated August 15, 1822, for fifty-six hundred dollars : and I order said four notes to be cancelled. To the wife of said I give an annuity of six hundred dollars, to be paid her in two equal and half-yearly payments of three hundred dollars each. It is my will, and I order and direct that a trust fund of ten thousand dollars shall be raised out of my estate and invested at interest, the income and produce of which trust fund I give unto of single woman, to be paid to her half-yearly, during her natural life. And at the decease of the said the principal sum or trust fund shall be paid to and amang such person and persons in such shares and portions as she, the said by any writing by her signed in the presence of two or more credible witnesses, shall give, direct, and appoint. And in default of such appointment, then said trust fund, or principal sum shall go, as the residue of my estate, to the residuary legatee hereinafter named. I also direct that another trust fund of ten thousand dollars shall be raised out of my estate and invested at interest. And I give the interest and produce of this trust fund, when and as it accrues, unto the wife of . It is my will that the income of this fund, or principal sum shall, during the natural life of said either be paid into her proper hand, or upon her order or receipt, signed by her alone, notwithstand- ing her coverture. And I declare that neither the principal nor income of this fund shall be subject to the control, debts, or engagements of the present or any future husband of said the same being intended for her sole and separate use. At the decease of said I give said principal sum or trust fund to the issue of said and in default thereof to such other person or persons as she, by a last will, or any writing in the nature of a last will, shall give, direct, or appoint the same ; and in default of such appointment, it is my will that said trust fund or principal sum shall be disposed of and pass as part of the residue of my estate. I give to an annuity of three hundred dollars, to be paid by two equal sums to said half-yearly, during her natural life. 762 THE DISPOSAL OF PROPERTY BY WILL. To of in the County of widow, I give an annuity of one hundred dollars, to be paid her, during life, in quarter- yearly payments. I also give unto of in the County of widow, an annuity of two hundred dollars, to be paid in quarter-yearly pay- ments during her life. I order my executor, hereinafter named, to pay of either in money, or such articles as his comfortable maintenance may require, fifty dollars annually during his life, at such times as said executor shall think proper. To wife of of I give an annuity of one hundred dollars, to be paid during her life quarterly. To wife of of I give three hundred dollars, and direct three notes, held by me, signed by her husband, for one hundred dollars each, to be cancelled. To wife of of there shall be paid in money, or delivered in articles necessary for her support, at the discretion of the executor of this my will, one hundred and fifty dollars annually, dur- ing her life, at such time and in such portions as he shall choose. I give to son of one thousand dollars, and order that he shall be charged with such amount of moneys as he shall be my debtor for, upon promissory notes, at my decease. I devise the wood-lot in which I bought of one to wife of above named, to hold to her for life, the remainder I give to the child or children of said who shall sur- vive her, his, her, or their heirs for ever. If shall be a member of my family at the time of my decease, she shall and may continue to reside in my dwelling-house and participate in the use of the stores and furniture, in common with others of my family, for the term of six months thereafter. It is my will that a debt of three hundred and thirty-two dollars, due me from of shall be cancelled. To each of those of the following named persons who shall be in my service at the time of my decease, I give one hundred dollars, viz : My will is that all annuities hereinbefore given shall take date from the day of the probate of this will ; and all legacies, not annuities, shall be paid within eight months from the same period. It is my will that all the capital or principal sums which shall be requisite to yield the several annuities above mentioned may, by my executor, be paid to to be held and managed by said corporation as trustees under this will : or, if the said executor and the parties beneficially intere.ited therein shall so elect, said capital or principal sums, or any of them, may be placed in the hands of such trustee or trustees as shall, upon application to the Supreme Court of sitting in chancery, be appointed to receive the same, and perform this, my will, in that behalf. FORMS OF WILLS. 763 I hereby authorize and empower whoever shall assume the execution of this will, to make sale of, and convey any parcel or parcels of real estate, of which I may die seized, for the purpose of raising any and all such sums of money as shall be required for the trust funds, annuities, and legacies hereinbefore directed to be created, given, and bequeathed. All such sales shall be made by public vendue, after notice thereof shall have been given in two or more newspapers printed in the city of for the term of fourteen days at least prior to such sales being made. All the residue of my estate, real, personal, and mixed, wheresoever it may be found, and of whatsoever it may consist, I give and devise unto to hold to him and his heirs forever. I hereby revoke all wills by me heretofore made, and constitute the said executor of this my last will. In Witness "Whereof, I, the above-named testator, have hereunto set my hand and seal, this twenty-sixth day of in the year of our Lord eighteen hundred and [L.S.] Then and there signed, sealed, and published by the testator, as and for his last will, in the presence of us, who, at his request, in his presence, and in presence of each other, have hereto set our names as wit- nesses. (269.) Another Form of a "Will. Be it Kemembered, That I of in the county of and State of Esquire, hereby revoking all for- mer wills by me made, do make this my last will and testament, in manner following. That is to say : I direct that my just debts be paid with all convenient speed. To my wife I give and bequeath my library, my horses and carriages, my family stores, all my household furniture wherever found, ex- cepting my silver plate, all my pictures, and also the sum of two thousand dollars, which shall be paid to my said wife within sixty days from the pro- bate of this will. It is my will that the debt due to me from and the interest due and to become due thereof, be suffered to remain unpaid until her marriage or death (whichever event shall first happen), provided she shall, from time to time so acknowledge said debt, that the same shall not be af- fected by the lapse of time or the " Statutes of Limitation ; " and provided, also, that she shall consent that the interest accruing on said debt be com- puted by annual rests. All the rest, residue, and remainder of my estate, real, personal, and mixed, I give, devise, and bequeath unto and all of the city of their successors and assigns, and the survivor of them, his heirs and assigns, forever ; but in trust, nevertheless, for the performance of this my will concerning the same. That is to say : 1st. To deliver and transfer to my daughter when she shall 764 THE DISPOSAL OF PROPERTY BY WILL. attain the age of twenty-one years, my tea-set of chased silver, gilt, and my set of gilt teaspoons ; and in case my said daughter shall die during her minority, then said tea-set and spoons shall be given to my son when he attains majority; but in case of his death before that period, the said tea-set and spoons shall, at the decease of the survivor of them, the said and be given to the eldest of my other children who shall then be living, and shall attain the age of twenty-one years. But it is my will that my said wife shall be allowed to use said tea-set and spoons until such event shall happen, if she shall so long remain my widow. 2d. To permit my said wife to use all my other silver-plate during her widowhood, and on her death or marriage, whichever shall first happen, to divide the same among my children who shall then be living. 3d. To pay over the interest and income which, prior to the fifth day of May that will be in the year eighteen hundred and fifty-six, shall be de- clared on the seventeen shares in the Bank, which now stand in the name of my former wife, to of to be by him appropriated to the support of and sisters of my former wife in such shares and proportions as he may think expe- dient. And in case of the decease of said then such appro- priation shall be made by the trustees acting for the time being under this will ; provided, however, that if said trustees shall think it expedient to apply said interest and income towards the support and maintenance cf my said dautrhter they shall appropriate the same to that object in preference to the purposes before mentioned. 4th. To transfer and convey said shares on said fifth day of May that will be in the year eighteen hundred and fifty-six, to my said daughter or to her issue in case of her decease. If neither my said daughter nor her issue shall then be living, then said shares shall go to, and be divided among the heirs cf my said former wife, in such shares and proportions as said trustees shall, with the concurrence of said (if living), think expe- dient and proper ; or the same may be transferred to trustees for the ben- efit of said heirs. 5th. To pay to my said wife during such time as she shall remain my widow, the whole interest and produce of the remainder of the trust premises when and as the same accrues and shall be received ; and it is my will that my said wife shall apply such portion of said interest and produce as shall be just and proper to the education and the support of my children ; and if said interest and income shall not be adequate for the com- fortable maintenance of my said wife, and the education and the support of my children as aforesaid, I order and direct the trustees or trustee who shall for the time being be acting under this will, to appropriate such portion of the principal of said remainder of the trust premises to the purposes afore- said as shall be requisite and necessary. If my wife desires to occupy either of the dwelling-houses of which I may die the owner, I direct said trustees or trustee to permit her to do so. FORMS OF WILLS. -jQt^ 6tli. To each o£ my sens attaining majority in my wife's lifetime, and requesting a sum cf money to enable liim to commence business, an advanc- ment not exceeding the sum of six thousand dollars shall be made ; and an advance not exceeding the sum of four thousand dollars shall also be made to each of my daughters respectively, on the day of her marriage, having the consent cf their mother thereto, which advancements shall be charged to each c'.iiLl receiving the same, and be accounted for in the final distribution of my estate as parts of their shares respectively. At the death or marriage of my said wife (whichever event shall first happen), the whole principal sum or trust fund, excepting said seventeen shares in the Bank, shall be conveyed, distributed, and paid over to and among my children, or the issue of a deceased child, who shall take by representation its parent's share ;' provided, however, that the shares to which my daughters shall be respectively entitled shall be so conveyed and passed to a trustee or trustees, to be nominated by my said daughters re- spectively, and appointed by the judge of probate having jurisdiction over this will, as that the income and produce cf such shares or share shall be secured to the sol3 and separate use of my daughters or daughter during their respective lives ; and so also that the capital or principal fimd shall, at the decease of my said daughters respecli vely, go to their respective issue ; and in default of such issue, to such person or persons, far such estates and interest therein, and in such way and manner as by a last will, or any instru- ment in the nature of a last will, my said daughters shall respectively give and appoint the same ; and in default of such appointment, the same shall go to and be divided between my issue ; and in default of issue, to his heirs and assigns forever. The share of either daughter in a deceased sister's fund to be added to the fund held for the survivors or survivor. In case neither of my cliildren nor their issue shall be living at the marriage or the death of my said wife as aforesaid, then said principal or trust fund (ex- cepting said seventeen shares as aforesaid) shall go to his heirs and assigns forever. My lot at shall be and remain a family burial-place for all my lineal descendants and those persons with whom they shall intermarry ; and it is my will that no disposition be ever made of said lot which is incon- sistent with this provision ; which shall apply also to my tomb, No. in the burying-place of I give and confer to and upon the trustees or trustee acting under this will, full power and authority, by public sale or private contract, in such way and manner, and at such price or prices, as he or they shall deem expedient, to make sale of and convey any and all the real estate of which the trust prem- ises are or shall be composed ; and to do all needful acts requisite to convey a title thereto to a purchaser or purchasers, and to invest the proceeds arising from such sale or sales in other real estate or in personal property, with lilce power of disposition over any and all the real estate in which the trust prem- ises, or any part thereof, shall be invested. And it is my will that said •j(£ THE DISPOSAL OF PROPERTY BY WILL. trustees shall not be answerable for any losses or damage to the trust prem- ises, unless the same shall happen by their own wilful default or negligence ; nor shall either of them be answerable for the other or others of them, but each for himself only, and then only for such portion of the premises as shall actually be received by him ; and I direct that said trustees shall not be required to give bonds for the faithful execution of the trusts hereby reposed in them. If by refusal to accept said trusts, by resignation, death, removal, or inca- pacity to act, the number of trustees shall at any time be reduced to one, it is my will that one or more trustees shall be appointed to fill such vacancy ; and I authorize my wife, if living, in conjunction with those of my children who shall have attained majority, to appoint and nominate such new trustees or trustee, with the concurrence of the judge of probate for the time being having jurisdiction over this will ; and in case of their neglect or refusal so to do, I refer the appointment to said judge of probate, or to the supreme judicial court sitting in chancery ; and such new trustees or trustee shalt have and possess all and the like interest, power, and direction in and over the trust premises, as if he or they had been originally named and appointed in and by this instrument (except the exemption from giving bonds for the due execution of said trusts). I appoint the said and my wife guardians to each of my children during their minority ; and I direct that neither be re- quired to give bonds for their fidelity as such guardians. I constitute and appoint the said the executor of this will, which shall operate upon all real estate of which at the time of my decease I shall be owner. In Witness Whereof, I, the said have hereunto set my hand and seal, this second day of January, in the year eighteen hundred and forty- seven. {Name.) {Seal) Then and there signed, sealed, published, and declared by the said as and for his last will and testam.ent, in presence of us who at his request, in his presence, and in presence of each other, have hereto sub- scribed our names as witnesses. ABSTRACT OF THE LAWS OF ALL THE STATES CONCERNING WILLS. ALABAMA. — All persons of full age and sound mind may make a will. It must be in writing, signed by the testator, attested by at least two witnesses in the presence of the testator. ARKANSAS. — The testator must be twenty-one years or more of age, and of sound mind ; he must subscribe his name at the end of the will, in the presence of two witnesses, and acknowledge it to be his will, and the wit- nesses must sign at the request of the testator. ABSTRACT OF WILLS. -j^j CALIFORNIA. — Wills, unless olographic, must be subscribed at the end by the testator, or some person in his presence, and by his direction, in the presence of two attesting witnesses, or acknowledged in presence of such witnesses, and must be attested by two witnesses in the presence of, and at the request of, the testator. COI4OKADO.— All wills must be in writing, signed by the testator or some one in his presence, at his request, and attested in his presence by two or more credible witnesses. CONNECTICXTT. — Every person eighteen years of age, or more, and of sound mind, may make a will, and every devise passes the whole title unless clearly limited ; the will must be in writing, signed by the testator, and at- tested by three witnesses in his presence, and in presence of each other. DELAWARE. — Any person of the age of twenty-one years, and of sound mind, may make a will. Married women, with the consent, in writing, of the husband, signed and sealed in presence of two witnesses, may make a will. The will must be in writing, signed by the testator, and attested by two cred- ible witnesses. FLORIDA. — Every person of the age of twenty-one years, and of sound mind, may make a will, and such will must be signed by the testator, or by some one in his or her presence, and by his or her direction, and attested and subscribed in his or her presence, by three or more witnesses. Nuncu- pative wills must be proved by three witnesses present. GEORGIA. — Persons of fourteen years of age, and sound mind, may make a will. A married woman may make a will of her separate estate. Wills must be in writing, signed by the testator, or by some person in his presence, and by his express direction, and attested and subscribed by at least three competent witnesses. ILLIITOIS. — Any male of twenty-one years, or female of eighteen years, of sound mind and memory, may make a will. It must be in writing, signed by the testator, or by some one in his presence, and by his direction, and attested by two or more credible witnesses in the presence of the testator, who must be able to say they saw the testator sign. INDIANA. — All persons, except infants and persons of unsound, mind, may make a will. Every devise passes the testator's whole interest. The will must be in writing, signed by the testator, or in his presence, and by his consent, and attested and subscribed in his presence by two or more competent witnesses. IOWA. — Testator must be of full age and sound mind. Personal prop- erty to the value of three hundred dollars may be bequeathed by a verbal (nuncupative) will, attested by two competent witnesses. All other wills must be in writing, witnessed by two competent witnesses, and signed by the testator, or by some one in his presence, and by his express direction. KANSAS- — Any person of full age and sound mind may make a will. It must be in writing, signed at the end by the testator, or by some' one in his presence and by his direction, and it must be attested in the presence of 49 768 THE DISPOSAL OF PROPERTY BY WILL. the testator, by two or more competent witnesses, who saw the testator sign, and heard him acknowledge the will for his last will and testament. KENTUCKY.— The testator must be of sound mind, and not under twenty-one years, nor a married woman ; but married women may make a will of their separate estate. It must be in writing, signed by the testator, or some one for him, and if not wholly written by himself, must be subscribed or acknowledged in the presence of at least two credible witnesses, who must sign in the presence cf the testator. liOUISIAlsrA. — Wills are of three kinds : i. Nuncupative, or open tes- taments. 2. Mystic, or sealed testaments. 3. Olographic testaments. Nun- cupative testaments, by public act, must be received by a notary public in the presence of three witnesses, residing where the will is executed, or five witnesses not residing in such place. It must be dictated by the testator, and written by the notary as dictated, then read to the testator in the pres- ence of the witnesses, and signed by the testator, and attested by all the wit- nesses. Nuncupative testaments, by private act, must be written by the tes- tator himself, or from his dictation, in the presence of five witnesses not residing in the place where the will was made, or it is sufficient if the testa- tor presents the paper, on which he has written the will, declaring that the paper contains his will. It must be read by the testator to the witnesses, and signed by the testator and all the witnesses. Mystic, or sealed testaments, are made as follows : The testator must sign his dispositions, and the paper then closed and sealed. He shall then present it thus closed to a notary public and seven witnesses ; he shall declare it to be his last will and testament in their presence. The notary must then draw up the act of superscription on the same paper or envelope, and sign it, together with the testator and the wit- nesses. Olographic wills are entirely written, dated, and signed by the testator himself. No woman, male child under sixteen years of age, insane, deaf an(? dumb, or blind person can make a will. liIAIKi;. — The testator must be of sound mind, and twenty-one years ol age, and the will must be signed by the testator, or some one in his pres- ence, and at his request, and subscribed in his presence by three credible witnesses, not interested in the will. I1IAE.YLAND. — The will must be in writing, signed by the testator or some one in his presence, and by his express direction, and attested and sub- scribed in his presence by three or four credible witnesses. MASSACHUSETTS.— Every person of full age and sound mind may make a will, which must be in writing, signed by the testator, or by some one in his presence, and by his direction, and attested and subscribed in his presence by three or more competent witnesses. MICHIGAN'. — The testator must be of full age, and sound mind. A devise passes the whole interest, unless specially limited. The will must be in writing, signed by the testator, or some one in his presence, and by his direction, and attested and subscribed in his presence by two or more competent witnesses. ABSTRACT OF WILLS. 76^ MINNESOTA.— The requirements of a will are the same as in Michi- gan. MISSISSIPPI.— The testator must be twenty-one years old, whether male or female, and of sound mind. The will must be signed by the testator, or some one in his presence, and by his direction, and, if not olographic, attested by three credible witnesses, in the case of a devise of real estate, and by one or more credible witnesses in case of a devise of goods and chat- tels and personal estate, who sign in presence of the testator. MISSOUKI. — The will must be in writing, signed by the testator, or some one by his direction, in his presence, and attested by two or more com- petent witnesses, who sign in the presence of the testator. NEBRASKA. — Wills must be in writing, signed by the testator, or some one in his presence, and by his direction, and attested and subscribed in the presence of the testator by two or more competent witnesses. NEVADA. — The testator must be eighteen years of age and of sound mind. The will must be in writing, signed by the testator, and sealed with his seal, or by some one in his presence, by his direction, and attested in the presence of the testator, by at least two competent witnesses. NEW HAMPSHIRE.— Any person of twenty-one years of age and sound mind may make a will, to be in writing, signed and sealed by testator, or some one in his presence, and by his direction, and attested and subscribed by three or more credible witnesses. NEW JERSEY.- All wills, after the year 1850, must be in writing, signed by the testator, or the signature acknowledged by him, and he must declare the writing to be his last will in the presence of two witnesses, who are present at the same time, and who must subscribe the same in presence of the testator. NEW YORK.— Wills must be subscribed by the testator at the end, in the presence of each of the attesting witnesses, or acknowledged by him in their presence. There must be at least two witnesses who sign their names at the end, at the request of the testator ; they should add also their place of business. NORTH CAROLINA.— The will must be in writing, signed by the tes- tator, or some one in his presence, and by his direction, and subscribed in his presence by at least two disinterested witnesses. Olographic wills, signed by the testator, and found among his valuable papers and effects, or lodged in the hands of some person for, safe keeping, are allowed, and the handwriting must be proved by three witnesses. OHIO. — The testator must be of full age and sound mind, and the will must be in writing, signed at the end by the testator, or some one in his pres- ence and by his direction, and attested by two or more competent witnesses, who saw the testator sign, and heard him acknowledge the will. OREGON. — Testator must be of full age and sound mind. The will must be in writing, signed by the testator, or some one for him, and attested by two or more competent witnesses in his presence. 770 EXECUTORS AND ADMINISTRATORS. PENNSYLVANIA. — Any person of full age and sound mind may make a will. It must be in writing, signed by the testator, or some one in his presence for him, and attested by two or more competent witnesses. RHODE ISLAND.— The will must be in writing, signed by the testator, or some one for him, and attested and subscribed in his presence, by two or more witnesses. SOUTH CABOLINA. — Three or more credible witnesses are neces- sary, who must sign in presence of the testator. The will must be in writ- ing, and signed by the testator. TENNESSEE. — Wills must be subscribed by the testator, or some one for him, and attested and subscribed in his presence, by at least two wit- nesses. Olographic wills found among the testator's valuable papers, or deposited for safe keeping, are allowed, if the handwriting is proved by three witnesses. TEXAS. — Testator must be of age and sound mind, and the will must be signed by testator, or for him in his presence, and by his direction, and if not olographic, attested by two or more credible witnesses over fourteen years of age. VERMONT. — A will must be in writing, signed by the testator, or for him, in his presence, and by his direction, and attested and subscribed by three or more credible witnesses, in his presence, and in presence of each other. VIRGINIA, — The will must be signed by the testator, or some one for him, by his direction, and in his presence, and unless olographic, attested in his presence, and in presence of each other, by two or more competent witnesses. "WEST VIRGINIA. — The testator must be twenty-one years of age, and of sound mind. The will must be in writing, signed by the testator, or by some one for him, in his presence, and by his direction, and unless olo- graphic, the signature must be made and the will acknowledged in the pres- ence of two competent witnesses, present at the same time, and who subscribe in presence of the testator. WISCONSIN. — Wills must be in writing, signed by the testator, or some one in his presence, and by his direction, and attested and subscribed in his presence by two or more competent witnesses. CHAPTER XXXVIII. EXECUTORS AND ADMINISTRATORS. An executor is a person named in tlie will of a deceased person, to settle his or her estate. There may be one or more ; and they may be male or female. An administrator is one EXECUTORS AND ADMINISTRA TORS. 771 appointed by the court to settle the estate of a deceased person. If the deceased left a will, but did not appoint an executor, or the appointed executor refuses to act, or resigns, or dies, or for any reason fails to act, an administrator is appointed by the court "with the will annexed." The husband of a deceased wife, or the wife of a deceased husband, has generally the right to be appointed administrator ; after them the next of kin in the order of relationship. But the courts have some discretion in the matter. They act as the personal representatives of the deceased, having in their hands his means, for the purpose of discharging his liabilities, or executing his contracts, and of carrying into effect his will, if he have left one ; and, in general, they are liable only so far as these means (called assets), in their hands, are applicable to such a purpose. But they may become personally liable ; and a clause in the statute of frauds refers to this sub- ject, making them not liable to pay any debt out of their own means, unless they give a promise to that effect, in writing, signed by them. In this country, the judicial officer, or judge who has the charge of the settlement of estates, of the proof of wills, and of proceedings under them, is generally called the Judge of Pro- bate. But in some States he is called Surrogate, Register or Registrar of Wills or of Probate, Judge of the Orphan's Court, etc. His powers and duties are very similar all over the coun- try. From his decrees or decisions an appeal may generally be taken, by a party who thinks himself aggrieved, to the Supreme Judicial Court. The Judge of Probate is usually a county offi- cer, and his jurisdiction is limited to his county. If an executor or administrator receives, as such, a promis- sory note or bill of the deceased, and indorses the same with his name, without adding "executor," or "administrator," he ig liable upon it personally. If he makes a note or bill, signing it "as executor," he is personally liable, unless he expressly limits his promise to pay, by the words, " out of the assets of my tes- tator," or, " if the assets be sufficient," or in some equivalent way ; but a note or bill so qualified would not be negotiable, because on condition. If an executor or administrator submits 772 EXECUTORS AND ADMINISTRATORS. a disputed question to arbitration, in general terms, and without an express limitation of his liability, and the arbitrators award that he shall pay a certain sum, he is liable to pay it whether he has assets or not. But if the award be merely that a certain sum is due from the estate of the deceased, without saying that the executor or administrator is to pay it, he is not precluded from denying that he has assets. Where the will of the deceased is of an executory nature, and the personal representative can fairly and sufficiently execute all that the deceased could have done, he may do so, and enforce the contract. But where an executory contract is of a strictly personal nature — as, for example, with an author for a specified work, or with an artist for a painting, the death of the writer before his book is completed, or of the artist before the painting is finished, absolutely determines the contract, unless what remains to be done — as, for example, in the case of a book, the preparing of an index, or table of contents, etc., can certainly be done as well and to the same purpose and effect by another. If executors or administrators jDay away money of the de- ceased by mistake, or enter into contracts for carrying on his business for the benefit of his estate, and to wind up his affairs, they may sue on such contracts either in their individual or their representative capacities ; but they should sue in the latter capacity, in order to avoid a set-off against them of their indi- vidual debts. The title of an administrator does not exist until the grant of administration. Then it goes back to the death of the de- ceased ; but only in order to protect the estate, and not for any other purpose. And if an agent sells goods of the deceased, after his death, and in ignorance of his decease, the adminis- trator may adopt the contract, and sue upon it. On the death of one of several executors, either before or after probate, the entire right of representation survives to the others. But if an administrator dies, or a sole executor dies, no interest and no right of representation is transmitted to his per- sonal representatives. An executor derives his authority from the will, and his duties begin at the death of the testator. They may be stated thus : EXECUTORS AND ADMINISTRATORS. 773 1. He should cause the deceased to be buried in a suitable manner. 2. He should offer the will for probate as soon as he can with a reasonable regard to his convenience ; and in proving the will, filing bonds, giving notice, making and returning an inventory, and the like, he must conform to the law of the State and the rules of the probate; and he .will obtain at the office sufficient information on all these points. 3. He must collect the property, and after paying the debts, he must distribute or dispose of the remainder as the will directs. 4. He must render his account from time to time, until a final settlement of the estate is made, and will be directed at the Pro- bate Office when and how to file his accounts. An administrator derives his authority from the court. But his duties are then substantially similar to those of an executor ; excepting, that he must distribute and dispose of the estate as the law requires, as he has no will to direct him, unless he is an administrator with the will annexed. The debts must be paid in a certain order. This is not precisely the same in all the States ; but it is very generally as follows : 1. Funeral expenses, charges of the last sickness, and pro- bate charges. 2. Debts due to the United States. 3. Debts due to the State in which the deceased had his home. 4. Any liens attaching to the property by law. 5. To creditors generally. If the estate is insufficient to pay all the debts due from it, as soon as the executor or administrator finds this to be the case, he should represent the case as insolvent at the Probate Court, and thereafter follow the requirements of the law of the State and the rules of the Probate Office, in reference to insol- vent estates of deceased persons. In most of the States, all the necessary forms or instruments are given to applicants at the Probate Office. It may, however, be convenient to know how to frame some of the most necessary forms ; and I give below those which, with such obvious changes 774 EXECUTORS AND ADMINISTRATORS. as circumstances may require and indicate, may be found suffi- cient. (270.) Petition to be appointed Executor, without further Notice. To THE Honorable the Judge of the Probate Court in and for THE County of Respectfully represents {name of the executor) of {residence of executor) that {name of testator) who last dwelt in {residence of testator), died on the day of in the year of our Lord one thousand eight hundred and possessed of goods and estate remaining to be administered, leaving a widow, whose name is {name of the widow) and as his only heirs-at-law and next of I being all the heirs-at-Iaw and ne.xt of kin, and the only parties interested in the foregoing petition, request that the prayer thereof be granted without further notice. (Signatures of heirs) [Minors must be so designated, and the names of their guardians given, if they have any. If any party is a married woman, her husband's name must be given.] , (271.) ExecLitor's Bond. Know all Men by these Presents, That we {name of the executor) as principal, and {names of his sureties) as sureties, and all within the Common- wealth {or State) of are holden and stand firmly bound and obliged unto Judge of the Probate Court in and for the County of in the full and just sum of dollars, to be paid to said judge and his successors in said office ; to the true payment whereof we bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals. Dated the day of in the year of our Lord one thousand eight hundred and Tlie Condition of this Obligation is such, That if the above-bounden {name of the executor) executor of the last will and testament of {name of the testator) late of {residence of testator) deceased, testate, shall First, Make and return to the Probate Court for the County of Fonnrs of boatds, petitions, etc. 775 within three months from his appointment, a true inventory of all the real estate and all the goods, chattels, rights, and credits ,of said testator, which are by law to be administered, and which shall have come to his possession or knowledge ; Second, Administer according to law and the will of said testator, all the goods, chattels, rights, and credits, and the proceeds of all the real estate that may be sold for the payment of debts or legacies, which shall come to the possession of said executor, or any other person for him ; and Third, render upon oath a just and true account of his administration within one year, and at any other times when required by said court ; then this obligation to be void ; otherwise to remain in full force and virtue. {Signature of executor.) {Seal.) {Signature of surety^ {Seal.) {Signature of surety.) {Seal.) Signed, Sealed, and Delivered in Presence of , ss. 18 . Examined and approved. {Name of judge) Judge of Probate Court. (272.) Bond of Executor, who is also Residuary Legatee. Know all Men by these Presents, That I {name of the executor) in the Commonwealth {or State) of * am holden and stand firmly bound and obliged unto Jndge of the Probate Court in and for the County of in the full and just sum of dollars, to be paid to said judge and his successors in said office ; to the true pay- ment whereof I bind myself and my heirs, executors, and administrators, by these presents. Sealed with my seal. Dated the day of in the year of our Lor4one thousand eight hundred and Th.6 Condition, of this Obligation is such, That, if the above-bounden {name of executor) executor of the last will and testament of {name of testa- tor) late of {residence of testator) deceased, testate, being residuary legatee in said will, shall pay all debts and legacies of said testator, and such sums as may be allowed by said Probate Court for necessaries to the widow or minor children of said testator, then this obligation to be void, otherwise to remain in full force and virtue. {Signature.) {Seal.) Signed, Sealed, and Delivered in the Presence of , ss. 18 . Examined and approved. {Name of judge) fudge of Probate Court. * If siireties are required, they should be added here as in preceding Form. •j-^e EXECUTORS AND ADMINISTRATORS. (273.) I Administrator's Bond. Know all Men by these Presents, That we (name of administrator) as principal, and {name of sureties) as sureties, and all within the State of are holden and stand firmly bound and obliged unto Judge of the Probate Court in and for the County of in the full and just sum of dollars, to be paid to said judge and his successors in said oflice ; to the true payment thereof ve bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals. Dated the day of in the year of our Lord one thousand eight hundred and The Condition of this Obligation is such. That if the above-bounden (name of administrator) administrator of the estate of (tta?pie of deceased) late of {residence of deceased) deceased, intestate shall. First, make and return into said Probate Court, within three months after his appointment, a true inventory of all the real estate, and all the goods, chattels, rights, and credits of said deceased, which have or shall come to his possession or knowledge ; Second, administer according to law all the goods, chattels, rights, and credits of said deceased, and the proceeds of all his real estate that may be sold for the payment of his debts, which shall at any time come to the pos- session of said administrator, or of any other person for him ; Third, render upon oath a true account of his administration, within one year, and at any other times when required by said court ; Fourth, pay any balance remaining in his hands, upon the settlement of his accounts, to such persons as said court shall direct ; and Fifth, deliver the letters of administration into said court, in case any will of said deceased is hereafter duly proved and allowed : Then this obli- gation to be void, otherwise to remain in full force and virtue. (Signature of administrator.) (Seal.) (Signature of surety) (Seal.) (Signature of surety) (Seal.) Signed, Sealed, and Delivered in Presence of ss. l8 . Examined and approved. (Name of judge) Judge of Probate Court, (274.) Administrator's Petition for leave to sell a Part of the Real Estate. To THE Honorable the Judge of the Probate Court in and for THE County of Respectfully Represents {name of the administrator) as he is adminis- trator of the estate of (name of the deceased) late of (residence of tlit FORMS OF BO.WS, PETITIONS, ETC. jyj deceased) in said County, deceased. Tliat tlie debts due from tlie deceased, as nearly as they can now be ascertained, amount to $ And the charges on administration to $ Amounting in all to . ; . . . . $ That the value of the personal estate in the hands of the peti- tioner (exclusive of the widow's allowance) is . . . $ And that the personal estate is therefore insufficient to pay the debts of the deceased and the charges of administration by the sum of ' . . $ Wherefore your petitioner prays that he may be licensed to sell so much of the real estate of said deceased as will raise the last mentioned sum, fox the payment of said debts and charges of administration. Dated the day of A.D. i8 . {Signature.) The undersigned, being all persons interested, hereby assent to the sale, as prayed for in the foregoing petition. {Here should fallow the signatures of the widow and all the heirs^ * [If the petitioner wishes the court for special reasons to direct what specific part of the real estate shall be sold, he must set forth the value, description, and condition of the estate, or of such part as he proposes to sell.] (275.) Administrator's Petition for leave to sell the "Whole of tho Real Estate. To THE Honorable the Judge of the Probate Court in and for THE County of Il9spectfuUy Represents {name of administrator) as he is administra- tor of the estate of {name of deceased) late of {residence of the deceased) in said County deceased. That the debts due from the deceased, as nearly as they can now be ascertained, amount to . $ And the charges of administration to $ Amounting in all to % That the value of the personal estate in the hands of the peti- tioner (exclusive of the widow's allowance) is . . . % That the personal estate is therefore insufficient to pay the debts of the deceased, and the charges of administration, and it is necessary for that purpose to sell some part of the real estate to raise the sum of $ That the value of the real estate according to the appraisal is . % 7;8 EXECUTORS AND ADMINISTRATORS. And' that by a partial sale, the residue of the estate would be greatly injured. Wherefore your petitioner prays that he may be licensed to sell the Avhole of the real estate of said deceased, for the payment of said debts and charges of administration, and for the reasons aforesaid. Dated the day of A.D. i8 (Signature^ The undersigned, being all persons interested, hereby assent to the sale, as prayed for in the foregoing petition. {Here should follow the signatures of the widow and all the heirs.) [If the petitioner wishes to sell only a specif e part of the real estate, which is more than enough to pay debts and legacies, he must give a concise description thereof, sufficient to enable parties interested to identify it.] (27G.) Bond of Administrator Licensed to sell Real Estate. Know all Men by these Presents, That \ve {name of person licensed) as principal, and {name of his sureties') as sureties, and all widiin the State of are holden and stand firmly bound and obliged unto Esquire, Judge of the Probate Court in and for the County of in the full and just sum of dollars, to be paid to said judge, and his successors in said office ; to the true payment whereof we bind ourselves, and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals. Dated the day of in the year of our Lord one thousand eight hundred and Tlie Condition of this Obligation is such. That if the above- bounden {name of person licensed) administrator of the estate cf {name of deceased) lite of {residence of deceased) deceased, who has been licensed by said court to sell real estate of said deceased, more than is necessary for the payment of debts, and charges of administration, shall account for and dispose of, according to law, all proceeds of the sale remaining after payment of debts, and charges, — then this obligation to be void j Otherwise to remain in full force and virtue. {Signature of administrator.) {Seal.) {Signature of surety.) {Seal.) {Signature of surety.) Seal.) Signed, Sealed, and Delivered in Presence of ,ss. A.D. l8 . Examined and approved. {Name of Judge.) Judge of Probate Court. I, {name of administrator) do solemnly swear, that in disposing of the real estate of {name of the deceased) deceased, which I have been licensed FORMS OF BONDS, PETITIONS, ETC. yyg by the Probate Court to sell, I will use my best judgment in fixing on the time and place of sale, and will exert my utmost endeavors to dispose ol the same in such manner as will be most for the advantage of all persons interested therein. So help me God. {Signature of administrator.) , ss. i8 . Personally appeared the above- named and took and subscribed the above oath. Before me, Justice of the Peace. (377.) 'Account of Executor. The first {or second, or other, as the case may be) account of {name of executor) executor o£ the last will and testament of {naine of the testator) late of {residence of the testator) in the County of deceased. Said accountant charges himself with the several amounts received as stated in Schedule A, herewith exhibited, . % And asks to be allowed for sundry payments and charges as stated su Schedule B, herewith exhibited, ... $ Balance, $ {Signature) Executor. The undersigned, being all the parties interested, having examined the foregoing account, request that the same may be allowed without further notice. {Signatures of the widow and all the heirs and legatees.) Schedule A. Dolls. Cts. Amount of personal estate according to inventory, . Balance of former account, Amount received from gain on sale of personal estate over appraised value, and from other property as follows : Schedule B. Amount paid out and charges, as follows ; 1. For funeral expenses and expenses of last sickness, 2. For charges of administration, 3. For debts of the deceased, 4. For amounts paid to legatees or heirs, .... 78o GUARDIANS. CHAPTER XXXIX. GTJAKDIANS. Guardians of all descriptions are treated by courts as trustees ; and in almost all cases they are required to give secu- rity for the faithful discharge of their duty, unless the guardian be appointed by will, and the testator has exercised the power given him by statute, of requiring that the guardian shall not be called upon to give bonds. But, even in this case, such testamentary provision is wholly personal ; and if the individ- ual dies, refuses the appointment, or resigns it, or is removed from it, and a substitute is appointed by court, this substitute must give bonds. The guardian is held, in this country, to have only a naked authority, not coupled with an interest. His possession of the property of his ward is not such as gives him a personal interest, being only for the purpose of agency. But for the benefit of his ward he has a very general power over it. He manages and disposes of the personal property at his own discretion, although it is safer for him to obtain the power of the court for any important measure. He may lease the real estate, if appointed by will or court ; he cannot, however, sell the real estate with- out leave of the proper court. Nor should he convert the personal estate into real, without such leave. As trustee, a guardian is held to a strictly honest discharge of his duty, and cannot act in relation to the subject of his trust for his ovi'n personal benefit, in any contract whatever. And if a benefit arises thereby, as in the settlement of a debt due from the ward, this benefit belongs wholly to the ward. And it has been held that if a guardian makes use of his own money to erect buildings on the land of his ward, without having an order of the court therefor, he cannot charge the same in account with his ward, or recover the amount from the ward. But we doubt whether a rule so severe would be applied unless for special reasons. He must neither make nor suffer any waste of the inheritance, and is held very strictly to a careful management of all personal property. He is respon- GUARDIANS. 78 1 sible not only for any misuse of the ward's money or stock, but for letting it lie idle ; and if he does so without sufficient cause, he must allow the ward interest or compound interest in his account. To secure the proper execution of his trust, he is not only liable to an action by the ward, after the guardianship termi- nates, but, during its pendency, the ward may call him to account by his next friend, or by a guardian appointed by the court for the action. The courts have gone so far as to set aside transactions which took place soon after the ward came of age, and which were beneficial only to the former guardian, on the presumption that undue influence was used, and on the ground of public utility and policy. A guardian cannot, by his own contract, bind the person or estate of his ward ; but it he promise, on a sufficient considera- tion, to pay the debt of his ward, he is personally bound by his promise, although he expressly promises as guardian. And it is a sufficient consideration if such promise discharge the debt of the ward. And a guardian who thus discharges the debt of his ward may lawfully indemnify himself out of the ward's estate, or if he be discharged from his guardianship, he may have an action against the ward for money paid for his use. An action will not lie against a guardian on a contract made by the ward, but must be brought against the ward, and be defended by the guardian. The guardianship is a trust so strictly personal, or attached to the individual, that it cannot be transferred from him, either by his own assignment or devise, or by inheritance or succes- sion. A married woman cannot become a guardian without the consent of her husband; but with that she may. A single woman who is a guardian generally loses her guardianship by marriage ; but she may be re-appointed. In some States, she loses it by statute ; in others, not. 782 INTERPRETATION OF CONTRACTS. CHAPTER XL. CONSTRUCTION AND INTERPRETATION OF CONTRACTS, SECTION I. GENERAL PURPOSE AND PRINCIPLES OF CONSTRUCTION. The importance of a just and rational construction of every contract and every instrument, is obvious. If any one contract is properly construed, justice is done to the parties directly interested therein. But the rectitude, consistency, and uni- formity of all construction, enables all parties to do justice to themselves. For then all parties, before they enter into con- tracts, or make or accept instruments, may know the force and effect of the words they employ, of the precautions they use, and of the provisions which they make in their own behalf, or permit to be made by other parties. It is obvious that this consistency and uniformity of con- struction can exist only so far as construction is governed by fixed principles, or, in other words, is matter of law. And hence arises the very first rule ; which is, that what a contract means is a question of law. It is the court, therefore, that determines the construction of a contract. They do not state the rules and principles of law by which the jury are to be bound in constru- ing the language which the parties have used, and then direct the jury to apply them at their discretion to the question of construction ; nor do they refer to these rules unless they think proper to do so for the purpose of illustrating and explaining their own decision. But they give to the jury, as matter of law, what the legal construction of the contract is, and this the jury are bound absolutely to take. A distinction is to be observed between the construction of a contract and the correction of a mistake. For, if it were in proof that the parties had intended to use one word, and that another was in fact used by a mere verbal error in copying or writing, such error might be corrected by a court of equity upon a bill filed for that purpose, and the instrument so corrected SOME GENERAL RULES OF CONSTRUCTION. 783 would be looked upon as the contract which the parties had made, and be interpreted accordingly. But this jurisdiction is confined strictly to those cases where different language has been used from that which the parties intended. For if the words employed were those intended to be used, but their actual meaning was totally different from that which the parties sup- posed and intended them to bear, still this actual meaning would, generally, if not always, be held to be their legal meaning. Upon sufficient proof that the contract did not express the mean- ing of the parties, it might be set aside ; but a contract which the parties intended to make, but did not make, cannot be set up in the place of one which they did make, but did not intend to make. SECTION II. SOME OF THE GENERAL RULES OF CONSTRUCTION. The subject-matter of the contract is to be fully considered. There are very many words and phrases which have one mean- ing in ordinary narration or composition, and quite another when they are used as technical words in relation to some spe- cial subject; and it is obvious that, if this be the subject-matter of the contract, it must be supposed that the words are used in this specific and technical sense. So, too, the situation of the parties at the time, and of the property which is the subject-matter of the contract, and the intention and purpose of the parties in inaking the contract, will often be of great service in guiding the construction, be- cause this intention will be carried into effect so far as the rules of language and the rules of law will permit. So the moral rule may be applicable, that a party will be held to that mean- ing which he knew the other party supposed the words to bear, if this can be done without making a new contract for the parties. Indeed, the very idea and purpose of construction imply a previous uncertainty as to the meaning of the contract ; for where this is clear and unambiguous, there is no room for con- struction, and nothing for construction to do. A court would not, by construction of a contract, defeat the express stipulations 60 784 INTERPRETATION OF CONTRACTS. of the parties. And if a contract is false to the actual meaning and purpose of the parties, or of either party, the remedy does not lie in construction ; but, if the plaintiff be the injured party, in assuming the contract to be void, and establishing his rights by other and appropriate means ; or, if the defendant be injured by defending against the contract on the ground of fraud or mistake, if the facts support such a defence. A construction which would make the contract legal is pre- ferred to one which would have an opposite effect ; and by an extension of the same principle, v/here certain things are to be done by the contract which the law has regulated in whole or in part, the contract will be held to mean that they should be done in such a way as would be either required or indicated by the law. The question may be whether the words used should be taken in a comprehensive or a restricted sense ; in a general or a particular sense ; in the popular and common, or in some unusual and peculiar sense. In all these cases the court will endeavor to give to the contract a rational and just construc- tion ; but the presumption — of greater or less strength, accord- ing to the language used, or the circumstances of the case — is in favor of the comprehensive over the restricted, the general over the particular, the common over the unusual sense. It is a rule that the whole contract should be considered in determining the meaning of any or of all its parts. The reason is obvious. The same parties make all the contracts, and may be supposed to have had the same purpose and object in view in all of it, and if this purpose is more clear and certain in some parts than in others, those which are obscure may be illustrated by the light of those which are clear. Thus, the condition of a bond may help to e.xplain the obligatory part. And the recital in a deed or agreement has sometimes great influence in the interpretation of other parts of the instrument. The contract may be contained in several instruments, which, if made at the same time, between the same parties, and in relation to the same subject, will be held to constitute but one contract, and the court will read them in such order of time and priority as SOME GENERAL RULES OF CONSTRUCTION. 785 will carry into effect the intention of the parties, as the same may be gathered from all the instruments taken together. And the recitals in each may be explained or corrected by a refer- ence to any other, in the same way as if they were only several parts of one instrument. Another rule requires that the contract should be supported rather than defeated. The court cannot, however, through a desire that there should be a valid contract between the parties, undertake to reconcile conflicting and antagonistic expressions, of vvhich the inconsistency is so great that the meaning of the parties is necessarily uncert^ain. Nor where the language dis- tinctly imports illegality, should they construe it in a different and a legal sense, for this would be to make a contract for the parties which they have not made themselves. But where there is room for it, the court will give a rational and equitable inter- pretation, which, though neither necessary nor obvious, has the advantage of being just and legal, and supposes a lawful con- tract which the parties may fairly be regarded as having made. So, for the same reason, all the parts of the contract will be construed in such a way as to give force and validity to all of them, and to all of the language used, where that is possible. All legal instruments should be grammatically written, and should be construed according to the rules of grammar. But this is not an absolute rule of law. On the contrary, it is so far immaterial in what part of an instrument any clause is written, that it will be read as of any place and with any context, and, if necessary, transposed, in order to give effect to the certain meaning and purpose of the parties. Still this will be done only when their certain and evident intent requires it. Inaccuracy or confusion in the arrangement of the parts and clauses of an instrument is, therefore, always dangerous ; because the intent may in this way be made so uncertain as not to admit of a remedy by construction. Generally, all relative words are read as referring to the nearest antecedent. But this rule of grammar is not a rule of law, where the whole instrument shows plainly that a reference was intended to an earlier antecedent. So, it is a general proposition, that where clauses are repug- nant and incompatible, the earlier prevails in deeds and other 786 INTERPRE TA TION OF CONTRA CTS. instruments among the living, if the inconsistency be not so great as to avoid the instrument for uncertainty. But in the construction of wills it has been said that the latter course pre- vails, on the ground that it is presumed to be a subsequent thought or purpose of the testator, and therefore to express his last will. An inaccurate description, and even a wrong name of a per- son, will not necessarily defeat an instrument. But it is said that an error like this cannot be corrected by construction, unless there is enough beside in the instrument to identify the person, and thus to supply the means of making the correction. That is, taking the whole instrument together, there must be a rea- sonable certainty as to the person. It is also said that only those cases fall within the rule in which the description so far as it is false applies to no person, and so far as it is true applies only to one. But even if the name or description, where erro- neous, apply to a wrong person, we think the law would permit correction of the error by construction, where the instrument, as a whole, showed certainly that it was an error, and also showed with equal certainty how the error might and should be cor- rected. Instruments are often used which are in part printed and in part written ; that is, they are printed with blanks, which are afterwards filled up ; and the question may occur, to which a preference should be given. The general answer is, to the written part. What is printed is intended to apply to large classes of contracts, and not to any one exclusively ; the blanks are left purposely, that the special statements or provisions should be inserted, which belong to this contract and not to others, and thus discriminate this from others. And it is reason- able to suppose that the attention of the parties was more closely given to those phrases which they themselves selected, and which express the especial particulars of their own contract, than to those more general expressions which belong to all contracts of this class. But if the whole contract can be construed together, so that the written words and those printed make an intelligible contract, this construction should be adopted. Because the intention of the parties is presumed to be " alive and active THE PRESUMPTIONS OF LA W. 787 throughout the whole instrument, and that no averments are anywhere inserted without meaning and without use." SECTION III. ON THE PRESUMPTIONS OF LAW. There are some general presumptions of law which may be considered as affecting the construction of contracts. Thus, it is a presumption of law that parties to a simple con- tract intended to bind not only themselves, but their personal representatives ; and such parties may sue on a contract, although not named therein. Hence, as we have seen, executors, though not named in a contract, are liable, so far as they have assets, for the breach of a contract which was broken in the lifetime of their testator. And if the contract was not broken in his life- time, they must not break it, but will be held to its performance, unless this presumption is overcome by the nature of the con- tract ; as where the thing to be done required the personal skill of the testator himself. So, too, if several persons stipulate for the performance of any act, without words of severalty, the presumption of law is here that they intended to bind themselves jointly. But this presumption also might be rebutted by the nature of the work to be done, if it were certain that separate things were to be done by separate parties, who could not join in the work. It is also a legal presumption that every grant carries with it whatever is essential to the use and enjoyment of the grant. But this rule applies more strongly to grants of real estate than to transfers of personal property. Thus, if land be granted to another, a right of way to the land will go with the grant. Where anything is to be done, as goods to be delivered, or the like, and no time is specified in the contract, it is then a presumption of law that the parties intended and agreed that the thing should be done in a reasonable time. But what is a reasonable time is a question of law for the court. They will consider all the facts and circumstances of the case in determin- ing this, and if any facts bearing upon this point are in question it will be the province of the jury to settle those facts, although 788 INTERPRETATION OF CONTRACTS. the influence of the facts when they are ascertained, upon the question of reasonableness of time, remains to be determined by the court. SECTION IV. OF THE EFFECT OF CUSTO.II OR USAGE. We have already had occasion to remark, that a custom which may be regarded as appropriate to the contract and com- prehended by it, has often very great influence in the construction of its language. The general reason of this is obvious enough. If parties enter into a contract, by virtue whereof something is to be done by one or both, and this thing is often done in their neighborhood, or by persons of like occupation with themselves, and is always done in a certain way, it must be supposed that they intended it should be done in that v/ay. The reason for this supposition is nearly the same as that for supposing that the comrrion language which they use is to be taken in its com- mon meaning. And the rule that the meaning and intent of the parties govern, wherever this is possible, comes in and operates. Hence an established custom may add to a contract stipulations not contained in it ; on the ground that the parties may be supposed to have had these stipulations in their minds as a part of their agreement, when they put upon paper or expressed in words the other part of it. So custom may control and vary the meaning of words ; giving even to such words as those of number a sense entirely different from that which they commonly bear, and which indeed by the rules of language, and in ordinary cases, would be expressed by another word. This influence of custom was first admitted in reference to mercantile contracts. And indeed almost the whole of the law- merchant, if it has not grown out of custom sanctioned by courts and thus made law, has been very greatly modified in that way. For illustration of this, we may refer to the law of bills and notes, insurance, and contracts of shipping generally. And although doubts have been expressed whether it was wise or safe to per- mit express contracts to be controlled, or, if not controlled, affected by custom in the degree in which it seems now to be established that they may be, this operation of custom is now THE EFFECT OF CUSTOM OR USAGE. 789 fixed by law, and extended to a tast variety of contracts ; and indeed to all to which its privileges properly apply. And quali- fied and guarded as it is, it seems to be no more than reasonable. In fact, it may be doubted whether a large portion of the com- mon law of England and of this country rests upon any other basis than that of custom. The theory has been held, that the actual foundation of most ancient usages was statute law, which the lapse of time has hidden out of sight. This is not very probable as a fact. The common law is every day adopting as rules and principles the mere usages of the community, or of those classes of the community who are most conversant with the matters to which these rules relate ; and it is certain that a large proportion of the existing law first acquired force in this way. Other facts must be considered ; as how far the meaning sought to be put on the words departs from their common mean- ing as given by the dictionary, or by general use, and v/hether other makers of this article used these words in various senses, or used other words to express the alleged meaning. Because the main question is always this : Can it be said that both par- ties ought to have used these words in this sense, and that each party had good reason to believe that the other party so under- stood them } Custom and usage are very often spoken of as if they were the same thing. But this is a mistake. Custom is the thing to be proved, and usage is the evidence of the custom. Whether a custom exists is a question of fact. But in the proof of this fact questions of law of two kinds may arise. One, whether the evidence is admissible, which is to be settled by the common principles of the law of evidence. The other, whether the facts stated are legally sufficient to prove a custom. If one man tes- tified that he had done a certain thing once, and had heard that his neighbor had done it once, this evidence would not be given to the jury for them to draw from it the inference of custom if they saw fit, because it would be legally insufficient. But if many men testified to a uniform usage within their knowledge, and were uncontradicted, the court would say whether this usage was sufficient in quantity and quality to establish a custom, and 790 INTERPRETATION OF CONTRACTS. if they deemed it to be so, wonld instruct the jury, that, if they believed the witnesses, the custom was proved. The cases on this subject are numerous. But no definite rule as to the proof of custom can be drawn from them, other than that derivable from the reason on which the legal operation of custom rests ; namely, that the parties must be supposed to have contracted with reference to it. As a general rule, the knowledge of a custom must be brought home to a party who is to be affected by it. But if it be shown that the custom is ancient, very general and well known, it will often be a presumption of law that the party had knowledge of it ; although, if the custom appeared to be more recent, and less generally known, it might be necessary to. es- tablish by independent proof the knowledge of this custom by the party. One of the most common grounds for inferring knowledge in the parties, is the fact of their previous similar dealings with each other. The custom might be so perfectly ascertained and universal, that the party's actual ignorance could not be given in proof, nor assist him in resisting a custom. If one sold goods, and the buyer being sued for the price, de- fended on the ground of a custom of three months' credit, the jury might be instructed that the defence was not made out unless they could not only infer from the evidence the existence of the custom, but a knowledge of it by the plaintiff. But if the buyer had given a negotiable note at three months, no ignor- ance of the seller would enable him to demand payment with- out grace, even where the days of grace were not given by statute. In such a case, the reason of the law of custom — that the parties contracted with reference to it — seems to be lost sight of. But in fact the custom in such a case has the force of law ; an ignorance of which cannot be supposed, and, if it be proved, it neither excuses any one, nor enlarges his rights. No custom can be proved, or permitted to influence the con- struction of a contract, or vary the rights of parties, if the cus- tom itself be illegal. For this would be to permit parties to break the law because others had broken it, and then to found the rights upon their own wrong-doing. Neither would courts sanction a custom by permitting its ADMISSIBILITY OF INTRINSIC EVIDENCE. 791 operation upon the rights of parties, which was in itself wholly unreasonable. In relation to a law, properly enacted, this inquiry cannot be made in a country where the judicial and leg- islative powers are properly separated. But in reference to custom, which is a quasi law, and has often the effect of law, but has not its obligatory power over the court, the character of the custom will be considered ; and if it be altogether foolish, or mischievous, the court will not regard it ; and if a contract exist which only such a custom can give effect to, the contract itself will be declared void. Lastly, it must be remembered that no custom, however uni- versal, or old, or known, unless it has actually passed into law, has any force over parties against their will. Hence, in the interpretation of contracts, it is an established rule, that no cus- tom can be admitted which the parties have seen fit expressly to exclude. Thus, to refer again to the custom of allowing grace on bills and notes on, time, there is no doubt that the par- ties may agree to waive this ; and even the statutes which have made this custom law, permit this waiver. And not only is a custom inadmissible which the parties have expressly excluded, but it is equally so if the parties have excluded it by a necessary implication ; as by providing that the thing which the custom affects shall be done in a different way. For a custom can no more be set up against the clear intention of the parties than against their express agreement ; and no usage can be incorpo- rated into a contract which is inconsistent with the terms of the contract. Where the terms of a contract are plain, usage, even under that very contract, cannot be permitted to affect mate- rially the construction to be placed upon it ; but when it is ambiguous, a long-continued usage may influence the judg- ment of the court, by showing how the contract was understood by the parties to it. SECTION V. OF THE ADMISSIBILITY OF EXTRINSIC EVIDENCE IN THE INTERPRETA- TION OF WRITTEN CONTRACTS. It is very common for parties to offer evidence external to the contract in aid of the interpretation of its language. The 792 INTERPRE TA TION OF CONTRA CTS. general rule is, that such evidence cannot be admitted to con- tradict or vary the terms of a valid written contract ; or, as the rule is expressed by writers oh the Scotch law, "writing cannot be cut down or taken away by the testimony of v>'itnesses." The rule is often expressed with sufficient exactness for ordi- nary purposes, in this way : " Evidence may be admitted to ex- plain a written contract, but not to contradict it." There are many reasons for this rule. One is, the general preference of the law for written evidence over unwritten ; or, in other words, for the more definite and certain evidence over that which is less so; a preference which not only makes written evidence better than unwritten, but classifies that which is written. For if a negotiation be conducted in writing, and even if there be a distinct proposition in a letter, and a distinct assent, making a contract, and then the parties reduce this contract to writing, and both execute the instrument, this instrument controls the letters, and they are not permitted to vary the force and effect of the instrument, although they may sometimes be of use in explaining its terms. Another is, the same desire to prevent fraud which gave rise to the statute of frauds ; for as that statute requires that certain contracts shall be in vv-riting, so this rule refuses to permit contracts which are in writing to be controlled by merely oral evidence. But the principal cause alleged in the books and cases is, that when parties, after what- ever conversation or preparation, at last reduce their agreement to writing, this may be looked upon as the final consummation of their negotiation, and the exact expression of their purpose. And all of their earlier agreements, though apparently made v;'hile it all lay in conversation, which is not nov/ incorporated into their v/ritten contract, may be considered as intentionally re- jected. The parties write the contract when they are ready to do so, for the very purpose of including all that they have finally agreed upon, and excluding everything else, and making this certain and permanent. And if every written contract were held subject to enlargement, or other alteration, according to the testimony which might be offered on one side or the other as to previous intention, or collateral facts, it would obviously be of no use to reduce a contract to writing, or to attempt to give it certainty and fixedness in any way. ADMISSIBILITY OF INTRINSIC EVIDENCE.. 793 It is nevertheless certain, that some evidence from without must be admissible in the explanation or interpretation of every contract. If the agreement be, that one party shall convey to the other, for a certain price, a certain parcel of land, it is only by extrinsic evidence that the persons can be identified vi^ho claim or are alleged to be parties, and that the parcel of land can be ascertained. It may be described by bounds, but the question then comes, where are the streets, or roads, or neighbors, or monuments referred to in the description ; and it may sometimes happen that much evidence is necessary to identify these per- sons or things. Hence, we may say, as the general rule, that as to \k\& pai ties or the sitbject-matter of a contract, extrinsic evi- dence may and must be received and used to make them certain, if necessary for that purpose. But as to the terms, conditions, and limitations of the agreement, the written contract must speak exclusively for itself. Hence, too, a false description of person or thing has no effect in defeating a contract, if the error can be distinctly shown and perfectly corrected, by other mat ter in the instrument. A written contract, of which the memorandum satisfies the statute of frauds, is open to evidence to show that certain essen- tials of the actual contract are not in the memorandum, if the effect of the evidence is, not to vary the written contract, but to show that no such contract was ever made. Recitals in an instrument may sometimes be qualified or con- tradicted by extrinsic evidence ; by " recitals " are meant the narrative of the circumstances or purposes which have induced the parties to make the contract. So the date of an instrument, or if there be no date, the time when it was to take effect, which may be other than the day of delivery ; or the amount of the consideration paid, may be varied by testimony ; but if a note given for land is sued, the promisor cannot show in defence that the deed described a less quantity of land than had been stipu. lated. And an instrument may be shown to be void and with, out legal existence or efficacy, as for want of consideration, or for fraud, or duress, or any incapacity of the parties, or any illegality in the agreement. In the same way, extrinsic evi dence may show a total discharge of the obligations of the con 794 INTERPRETATION OF CONTRACTS. tract ; or a new agreement substituted for the former, which it sets aside ; or that the time when, or the place where, certain things were to be done, had been changed by the parties ; or that a new contract, which was additional and supplementary to the original contract, had been made, or that damages had been waived, or that a new consideration, in addition to the one mentioned, has been given, if it be not adverse to that named in the deed. And if no consideration be named, one may be proved. We have already said that a receipt for money is peculiarly open to evidence. It is only primA facie evidence either that the sum stated has been paid, or that any sum whatever was paid. It is in fact not regarded as a contract, and hardly as an instrument at all, and has but little more force than the oral admission of the party receiving. But this is true only of a sim- ple receipt. It often happens that a paper which contains a receipt, or recites the receiving of money or of goods, contains also terms, conditions, and agreements, or assignments. Such an instrument, as to everything but the receipt, is no more to be affected by extrinsic evidence than if it did not contain the receipt ; but as to the receipt itself, it may be varied or contra- dicted by extrinsic testimony, in the same manner as if it con- tained nothing else. Lastly, no contract will be enforced, as a contract, if it have no plain and natural or legal meaning, by itself; and if admis- sible, extrinsic evidence can only show that the intention of the parties was one which their words do not express. But the supposed contract being set aside for such reasons as these, the parties will be remitted to their original rights and obliga- tions. HIS TITLE TO HIS FARM. 755 CHAPTER XLII. LEGAL EIGHTS AND OBLIGATIONS OF FAHMERS. SECTION I. HIS TITLE TO HIS FARM. This right may arise from and rest upon possession, inherit- ance, purchase, or hiring. I. Possession. — If the farmer or they from whom he inherits have possessed the land without disturbance or adverse claim for a sufficient number of years, it is his by what is called prescrip- tion. The meaning of this is, that the law does not allow any adverse claimant to set up an old and stale claim to the farm, and on the strength of it deprive a man of property which he has held in peace for a long period. This law was founded upon the probability that they who have held quiet possession of land for a long time must have held it by right ; and that no one would be likely to lie by and make no claim to the land if he had a good title to it. Ages ago, the period required to give title by mere lapse of time was a very long one. Gradually it became shorter, and is now in this country quite short. Exceptions to the rule are always made in favor of those who by reason of absence, infancy, or imbecility have been unable to assert their claims — the principle being that no one should lose his land by suffering another to possess it quietly for a long time but he who could have made claim, and was therefore properly pun- ished for his neglect. In Chapter 22, on limitations, and in the abstract of the statutes of limitations, beginning on page 296, the reader will find stated the periods of time within which, in the several States, an action must be brought to recover real estate — that is, land. If brought afterwards, the lapse of time is a sufficient defense, unless the plaintiff who seeks to recover the land can justify his delay in bringing his suit by showing that he or she was an infant, or absent from the State, or imbecile, or a married woman, or under some other disability ; and that he or she 796 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. brought his or her action within the prescribed period, if that began after his disability was removed. 2. IxiiERiTANCE. — In this country there is not only an entire absence of the right of primogeniture, but no other difference between the inheritance of real estate or land, and of personal property in goods and chattels, than that which arises necessa- rily from the difference in the nature of these two kinds of property. We retain, generally, the phraseology of the English law. The word " inheritance " applies in law only to real property, and the statutes by which it is determined how such property passes to the issue or relatives of the deceased, are commonly called statutes of inheritance. Whereas those which determine how and where the personal property shall go are called statutes of distribution. But in all the States these two statutes are nearly alike ; that is to say, the persons entitled to the real estate of a deceased man are almost always those to whom the personal property would go as to the next of kin to the deceased. A person who takes a farm by inheritance (using the word in its common meaning), must take it either under the will of the deceased, or by force of law as the heir of the deceased. On this subject we refer to what we have said in our chapters on wills and on executors and administrators. 3. Purchase. — In this country land can only be transferred by Deeds. If a man makes a bargain to buy a farm and is so unwise as to take possession without having a sufficient deed duly executed, his bargain gives him no title to his farm, which still remains the property of the man who agreed to sell it. But if the bargain be in writing and sufficiently distinct, the law may help him and compel the owner to carry his bargain into effect by giving a sufficient deed. The wiser way, if for any reason the parties are not ready to give and receive a deed, is for the intended buyer to take from the intended seller a bond for a deed, of which he will find several forms. See forms 27, 28, and 29, in this book. For offers made on time, see the third section of the sixth chapter. HIS RIGHT TO HIS FARM. ygy For the law of deeds we refer to our chapter on deeds. In that chapter will also be found what it is most important to know, remember, and practice — that is the legal requirements concerning the signing, sealing, acknowledgment, delivery, and recording of deeds. Ignorance or neglect of any of these matters may destroy a man's title to his farm and deprive him of it. It is now so common to sell a farm at auction that it is well to give some of the rules of law about sales at auction. 4. Sales of Land at Auction. — Every bid by any one present is an offer by him. It may be withdrawn before the hammer falls ; but if not withdrawn, then the offer is accepted and the bargain made. If a farm be sold the plan or description offered at the sale must give true information, or the purchaser is not bound to take the estate. If the descriptions are written or printed and circulated among the bidders, they cannot be contradicted by verbal declarations made by the auctioneer at the time of the sale. If land is sold in several lots, and each is bought by itself, there is a separate bargain for each lot ; and therefore if the seller can make good title to only one or more of the lots, the buyer must take them though he cannot have the other lots he bought ; unless he can show that the buying of the whole was a valid part of the inducement or motive for buying any, and that the part he could have would not answer his purpose unless he could have the other lots. Whether by-bidders for the seller authorize a purchaser to abandon a sale has been much disputed. Of course any fraud- ulent act of the seller would have that effect ; but it seems to be law that by-bidding is not necessarily fraudulent, if the seller wishes only to avoid sacrifice. But the honest way would be to put the land up at a price. And if the seller or auctioneer declares at the sale that there is no by-bidding, or makes any declaration to that effect, and then employs by-bidding, the buyer is not bound to take the land. An agreement among many persons that one should bid for all is not necessarily illegal. 798 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS, An auctioneer of real or personal property who does not give the name of the owner is himself liable to the buyer for the completion of the sale, and for any warranty he makes ; and so he is if he sold and warranted without authority. But if he has authority from the owner and states who the owner is, he puts the liability for the sale and the warranty upon the owner. SECTION II, WHAT ONE TAKES BY THE DEED OF A FARM. I. Boundaries and Descriptions. — The first question is what land does he take ; and this question is answered by the boundaries. These cannot be stated too carefully, and cases where difficulties and law-suits have arisen from their inaccu- racy or insufficiency are very frequent. One rule to be remembered is, that evidence of what the parties meant and intended cannot be used to contradict what they have said in writing. See page 74. This rule some- times works great injustice ; but the reason of it is obvious, for if, after parties had agreed upon a matter, and put it in writing in the most formal manner, either of them could put the writing aside by evidence that he meant something else, nobody would be safe in his contracts or secure in his rights. But evidence is receivable to show that either of the parties used language to defraud the other ; for fraud can always be exposed, and whenever shown gives the defrauded party the right to avoid the contract. Words and conversation about the farm amount to nothing in law. The intending seller may say how much stock it will feed, or what crops it will produce, and if he deceives the buyer this man has no remedy, for he must judge of these matters for him- self, or get disinterested advice. But if he should state falsely and fraudulently that the farm had in fact fed so much stock or produced such crops, the deceived buyer would have his remedy, and could avoid the sale if he thought fit. Evidence is always admissible to show what the contract or instrument means, as who the parties are, or where the farm or land is. The rule is, that evidence cannot contradict but may explain a written contract. If a deed says John Smith sells the WHAT OA'E TAKES BY THE DEED OF A FARM. 799 land, evidence cannot show that it was Peter Robinson ; but if there be John Smith the father and John Smith the son, it can show which of them is meant. So the boundaries may be obscure or uncertain ; and while evidence cannot put new boundaries into a deed, it may make those which are there certain. So boundaries may be incon- sistent. The farm may be said to contain so many acres, and to measure five hundred rods- from such a boundary to such a boundary in a nortliwest direction. But there may be no bound- ary in that direction, and the distance from one bound to the other may be four liundred and six hundred rods, in a north- northwest direction, and the farm may contain more or fewer acres than the description. In such a case evidence may sliow, if it can with reasonable certainty, just what the bounds actually are, as certain trees, or posts, or rocks. And if the boundaries are made certain they will control distances, directions, and con- tents, unless the discrepancies are so great as to show either fraud on one part or the other, or that the parties labored under some mistake, and could not have agreed in their minds one to sell and the other to buy the same farm ; for this agree- ment of minds is in law the very essence of a contract. If the number of acres enters into the description, it is com- mon to add, " be the same more or less." This guards effect- ually against any inaccuracy. But without it, the failure in the number of acres would not avoid the deed, unless it was so large as, with other circumstances, to show fraud. If there be ever so much fraud, the fraudulent party cannot take advantage of it, and only the defrauded party can. If the seller says the farm contains so many acres when he' knows it does not, and then points out the boundaries accurately and truly, the buyer is without redress, because he has the means of correcting the misrepresentation. 2. Contents. — The rule of law is, and for many centuries has been, that whosoever owns land owns all there is above it and all there is below it ; or as the old phrase ran, everything up to the sky and everything down to the center. Of course all buildings and everything fairly belonging to the buildings go with the farm. But then comes the question, what 51 8oO LEGAL EIGHTS AND OBLIGATIONS OF FARMERS. does belong to them ? The answer is given by the rules of law as to fixtures. 3. Fixtures. — They are everything which is fixed or fastened to the land. And if anything be fastened to the land, whatever is fastened to that thing is fastened to the land. Thus : A house rests on a stone foundation sunk into the ground ; but the doors and windows of the house are fastened to the house, and therefore they are fastened to the land ; and the blinds belong- ing to the windows and the locks and keys to the door, though moveable and for the time removed from them, and some other things of like land not fastened to the house, are fixtures, and go with the house as that goes with the land. The cases are almost innumerable which have risen upon the question whether this or that thing is a fixture. Before attempting to show how this question has been answered, it may be well to state that many things are fixtures when a house is sold, so that the seller of the house cannot retain them, which would not be fixtures to the hirer of the house if he put them in ; and when his lease expired he could, therefore, take them away with him. In general, whatever the owner of the farm fastens to the ground or to a building, or uses constantly with it as an appur- tenance to it, is a fixture, and he sells it when he sells the farm. But whatever a hirer buys or makes to use with the farm, and fastens to the ground or building, if he fastens it in such a way that he can remove it and leave the land or building in as good order and condition as before, he may remove and take away. Of course the parties, whether buyer or seller, or hirer or lessor, may make what bargains they like about any fixture. The law of fixtures comes in only where they make no bargain. A. Tilings held not to be removable by an outgoing tenant. — Barns and sheds fixed in the ground, statues erected on a per- manent foundation as an ornament to the ground, chimney- piece not ornamental if it be fastened to the wall, closets affixed to the house, conservatory substantially affixed, fuel-house, hearths, hedges, pigeon-house, pump-house, wagon-house, box- borders not belonging to a gardener by trade, fruit trees not belonging to a nurseryman. These last two illustrate a rule of much force and frequent application, namely : that a tenant of WJ/AT ONE TAKES BY THE DEED OF A FARM. 8oi land which he hires to carry on a business there may add things as a part of his business and take them away, which things he would be obliged to leave if they were not con^ nected with his business. B. Things held to be removable by an outgoing tenant. — Barns, stables, out-houses and sheds resting on logs or rollers, because this showed them to be affixed to the land only tem- porarily. Ornamental chimney-pieces, fire-frame, furnaces, cook- ing stove, gates, looking-glasses, trade fixtures generally. There are two rules to be remembered, of almost universal force. One is that the outgoing tenant who has attached to the land or placed upon the premises anything which he cannot remove and leave the buildings or the land in as good condition as before, must leave that thing behind him. The other is that an owner of land who attaches to his land or building almost any of the things which a tenant may remove, when he sells the land or building sells that thing, unless he expressly reserves a right to remove it. 4. Manure. — If a man sells his farm he sells with the farm all the manure upon it, whether it be spread on the fields or is heaped up in the barn-yard or cellar. If he lets his farm to another, the hirer takes the manure, unless the lessor reserves the right to take it away, and when the lease expires and the land returns to the owner, the manure goes with the land. The owner of a farm may undoubtedly, before he sells it, remove the manure or sell it separately, if he does this openly and not secretly, and not in such a way as to deceive and cheat the buyer of the farm. What the right of the outgoing tenant is may not be so certain. But it may now be considered as the law of this country that a tenant who has occupied a farm on a lease, and whose lease is about to expire, cannot sell or remove the manure, but it goes with the farm to the owner. 5. Rocks, Stones, Soil. — These belong wholly to the owner of the land, and whoever buys it buys an absolute right to them. No man can take away a pebble or a spoonful of earth without a breach of the law. This is obvious, for if a man could take one spoonful he could take many, and that might be a cartload. 8o2 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. And if he might take a pebble, he might take the rocks. These must belong to the owner of the land. 6. Adjoining Roads. — If one's farm is bounded by a road, and there are no restrictions or reservations in the deeds through which he derives title, he owns to the middle of the road, sub- ject only to the right of the public to use it as a road, or, as it is called, their right of way ; subject also to whatever rights the law of the State gives to surveyors of roads and highways, or other officers. Thus, he owns the grass on the road, and may take stone or gravel from the road as freely as from any part of the farm, provided he fills the vacant places with equally good road material and leaves the road in as good condition as before. When the owner of a farm owns to the middle of the adjoin- ing road he has all the rights to the land consistent with the public right of way. He may plant trees on the sidewalk if per- mitted by proper authority, or unless they obstruct the use of the road, and they remain his property. Officers charged with the care of roads may remove them, but individuals are liable for their wanton destruction. If one fastens his horse to the trees, and the horse injures the trees, the man who tied him there is liable. The owner of a farm cannot put any permanent structure on an adjoining road, nor keep his carts and sleds there nor pile his wood there, and if he does he is liable to anyone who suf- fers an injury from running against them while traveling over the highway. 7. Trees. — Of course the owner of a farm buys and owns all the trees upon it if at the time of the sale they were blown down and lie on the ground, but not if they have been cut for sale or fuel. There have been some cases in courts turning upon the question what are his rights if his trees hang over his neighbor's fields, and what are his neighbor's rights. In the first place his neighbor owns ]iis land absolutely, and all that is above and below it. Therefore he may cut away every bough and twig which comes over his land. And he may dig down close to the line of his land and cut away every root that comes into his land. But how is it as to the fruit which grows upon their branches .' This fruit, like the branches TRESPASSING ON THE FARM. 803 themselves, belongs to the owner of the tree. His neighbor may cut the branches away, and they may fall on his ground, but he has no right to them. The original owner loses no prop- erty in them, but has a right to enter peaceably upon the land where they lie and take the fallen boughs away. So he retains his property in the fruit, and may enter upon the land where it lies, and gather it and take it away. Such, we think, are the conclusions to be derived from the best adjudication and the best reasoning on the subject. SECTION III. TRESPASSING ON THE FARM. 1. Who is a Trespasser. — The right of an owner of a farm to its entire possession is so absolute in law that nobody can set foot upon it, by day or night, against the owner's will, with- out committing what the law calls a trespass, or a breach of the law for which he is answerable. A man's house, says the old maxim, is his castle, as effectually protected by the law as a castle by its walls and battlements. If a stranger goes at proper hours only upon the roads and paths of the farm, although they are not public, they are so far open that one who walks on them without evil design and without doing harm, and without express prohibition of some kind, would be held to have in some sort the owner's permission. But one who walks on the grass, or perhaps anywhere but on the roads or paths, is a trespasser, if without express permission. 2. Of the right of the Farmer to order a Trespasser OFF FROM his Land. His right to do this is unquestionable. But suppose that he gives such an order and the trespasser will not go. What can the farmer do .'' Then the owner of the farm, or of any lot of land, however small, has an equally unquestionable right to put him off forcibly if the trespasser will not go peaceably. But how much force may the owner use .' The answer to this question is distinct and certain so far as the law goes, but there may be some difficulty in the actual application of the rule. The rule of law is, that the owner of the land may, in order to expell the trespasser, "put his hands gently upon him." But then the question comes 8o4 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. what is "gently." This question lias been through English courts for centuries. They have come to a conclusion which the American courts generally adopt. This conclusion is that the owner may use whatever force is necessary to expel the trespasser, provided on the one hand that he does him no griev- ous bodily injury, and on the other that he uses no more force than the trespasser makes necessary. For example : A goes into B's house, or barn, or on his land, and persists in remaining there, although B orders him away. B may lay hold of him, may summon help, and with as- much help as he needs seize him, and if need be bind him hand and foot, carry him bodily off his premises, and then unbind him. Always on this condition, that he uses no more violence than is requisite to remove him, and that he avoids such measures as would do serious or permanent harm or endanger life or limb. But while B does only what is needed to remove A, and does this with sufficient care, if A by some accident is injured, B is not responsible, for it is A's own fault. SECTION IV. FARIIWAYS. Of course an owner of a farm may make or unmake his own roads or ways at his pleasure. His neighbor has noth- ing to do with them, unless the owner give him leave to use them, and aright of way must be conveyed by a deed, in like manner as the land itself. If, indeed, his neighbor claims a right to use one of them, and under that claim uses it as he would his own for more than twenty years without the permis- sion of the owner, sucli neighbor might acquire a right of way by prescription. And if such rights of way become attached to a farm by prescription, whoever buys a farm buys with it those rights of way. But such a case would not often occur. If a farmer sells a lot surrounded by the farm, he sells with it a right to pass to and from the lot. But the seller may mark out a sufficient passage to and from the land, and over that the buyer must go. And when a public highway is laid out which gives access to the lot, the buyer of it loses his right of passage over the seller's land, because this right is no longer necessary to his use and occupation of the lot. WATER RIGHTS.— FIRE. 80$ SECTION V. WATER KIGUTS. The owner of a farm owns the ponds upon his farm and the running streams, so far as to make a reasonable use of them for his land, stock, or liouse. He may change the course of a stream on his own land, but he must not divert it from his neighbor's land, nor can he lead it into his neighbor's land else- where than in its natural channel. He may dam it up so as to make ponds on his own land, but cannot overilow his neighbor's land except for mill purposes under the local laws regulating such use of the water. If he does, his neighbor may enter his farm and remove the dam so far as to relieve his land from the overflow ; and if the stream be obstructed by stones or rubbish on his neighbor's farm, he may go on his neighbor's land to remove the obstruction, and may put this on the banks of the stream. He may dig anywhere on his own land, even if he cuts off the springs which water his neighbor's land or supply his well or pond, for his neighbor has no property or legal interest in the waters which flow or stand below the surface of the land. As the owner of a farm owns a stream or brook which runs through his farm, so if a farm bounds on a running stream that is not navigable he owns to what is called the thread of the stream, which is the middle of the main current, and may be on one side or the other of the middle of the stream. SECTION VI. FIRE. There is a principle of law applicable in a reasonable way to everyone, and to the ownership and use of all property. It is this : "A man must use what is his own so as not to injure his neighbor." This rule applies distinctly to a man's right to kindle fire on his land. A man who owns any land, much or little, may kindle what fire he will upon it and burn what he will in the fire. But he is always responsible for the damage his fire does if he were negligent in any way about it. It may be that his neighbor's fences or buildings are so near him that he could not build a fire upon any part of his land without endangering his 8o6 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. neighbor's property. Then it might be negligent in him to build a fire to burn brush anywhere, or he may build it of par- ticularly inflammable and therefore dangerous material, or in a very dry time, or in a high wind, or too large a fire, or without watching it with the care that such a fire required to be reason- ably safe. If he were sued for the damage it would be for a jury to determine, under the direction of the court as to the law, whether he was liable, and if so for how much. The court would instruct the jury that the builder of the fire was not liable if he built it on his own land, unless there were circumstances of some kind which satisfied them that he had been in some way negligent, and that the damage was directly due to his negli- gence. Then would come the question, which is often very diffi- cult because it must be answered by a well established rule, applicable not only to fire but in a great variety of cases, but which it is often very difficult to apply. This rule is that a wrong doer is always answerable for all the immediate or direct effects of his wrong-doing, but not further. If we apply this rule to a case of fire, the man who built one or tended one negligently would be answerable to his neighbor not only for a shed that caught, but for his dwelling-house, though that stood at some dis- tance, if it caught fire from the shed. But he would not be answer- able to a more distant person whose house caught fire from the first house. The reason of the rule is obvious. If the builder of the fire were answerable for the second house, why not for the third which caught from the second, and why not for a whole city } It is plain that there must be some limit to a wrong-doer's liability for the consequences of his wrong-doing. It must stop somewhere. If the man whose house or store is burned down becomes thereby insolvent, no one would say that the man who set the fire, however willfully or negligently, should be answer- able to this insolvent's creditors for what they lose by him. As this man's liability must stop somewhere, the law says it stops with the direct and imrriediate consequences of his wrong-doing, leaving it to a court and jury to determine what damages were direct and immediate, and what were only remote and conse- quential. Farm buildings are sometimes destroyed by fire cau2:ht from GAME ANIMALS. 807 railroad cars. The railroad companies are of course liable for all damage caused thereby if the fire arose from any fault of theirs or of persons employed by them. It would be the fault of the companies if they neglected to use known and entirely practicable precautions. Whether they would be answerable if wholly free from negligence and default cannot be answered from any ascertained and uniform law. Generally we think they would be answerable. In some States this is provided by stat- ute. SECTION VII. GAME ANIMALS. We have in this country no game laws but such as are intended to preserve from wasteful destruction animals valuable for food or otherwise useful. It is a pity we have not more laws for this purpose, and that they are not better observed. Game animals which existed in great abundance almost everywhere in this country some years ago are now scarce everywhere, and in some regions destroyed, by the indiscriminate slaughter which has long prevailed. A wild animal, whether beast, bird, or fish, belongs to nobody, and everyone may catch or kill it who can. But here again comes this question of the right to go upon^the land. The wild birds on my farm are not mine. I have no better right to shoot or snare them than another. But no man has any more right to come on my land without my permission, to snare or shoot them, than for any other purpose. That is to say, he has no right at all. If a man stands in a road adjoining my farm and shoots a bird which is coming on my land I cannot say that he does me any wrong. But if the bird falls over the line he has no right to step a foot on my land to get the bird, and if he does so he is a trespasser. It is common in some parts of our country to see signboards set up on the roadside, giving notice " no shooting allowed on these premises." The only practical meaning or effect of such notices is, that while one who walks peaceably over the land will not be prosecuted, one who shoots upon the land will be. But he cannot be prosecuted for shooting there or for killing wild animals there, but for being there without leave, that 8o8 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. is, for trespassing on the land. So the owner of the farm does not own the fish in his ponds or streams until he catches them, but no stranger has any right to come over his land to his grounds. If such ponds or streams reach a highway any man may stand in the highway and fish for them. An animal that was originally wild, after it is caught and tamed is, with its progeny, as much property as a domestic ani- mal. SECTION VIII. DOMESTIC ANIMALS. They are as much the property of their owner as anything else which he owns. A farmer has certain rights to them and certain liabilities for them. No one has a right to kill or injure them. If his neighbor's cattle trespass on his land he may iinpmtnd t/icjii, being very careful to follow exactly the requirements of the law, for his ignorance or carelessness here may get him into trouble. Per- haps the difficulty or danger of making use of a remedy which may so easily be mistaken is one cause why impounding is not now so often resorted to as formerly. But the farmer v.hose land cattle trespass on may turn them into the road to go where they will. A kind regard for his neighbor would prompt him to give his neighbor such information as would enable him to recover his cattle, unless, indeed, they were notoriously breachy and their owner had been warned often enough. But one who turns them from his own land into the road is not bound to give this notice. For everyone who owns cattle is bound to keep them at home or suffer the consequences. So it would be as to sheep, goats, swine, etc. As to hens, they cannot be impounded. Of course they can be driven away, but they must not be shot, even if their dead bodies were returned to their owners. It may be doubted, however, whether a jury — who determine all questions of damages in actions of trespass — would give much damage if their owner, who was in the habit of letting them get their food in his neighbor's gar- den, brought an action when their dead bodies were brought to him. The owner of domestic animals is liable for any dam- SALE WITH WARRANTY OF ANIMALS, SEEDS, ETC 8C9 age they cause, and one whose fields they break into may sue for the harm they do. If he turns his oxen or other animals loose into the public highway, and there they injure anyone in person or property, he is answerable. Nor is it any defense that he did not know that they were particularly dangerous in disposition, nor is it any defense that the animals were not so, because he ought to have kept them at home. Whether this applies to hens the law has not said that we know of, but it has said so very decidedly as to all four-footed animals, including one of the most troublesome — dogs. As to other animals it is a general rule that the owner of an animal that- is kept at home and there injures a person, is not liable unless it can be shown that he had good reason to know that his animal was mischievous and should be kept in such a way that he would be harmless. But all dogs are mischievous by their very nature and their owner is liable for any injury they do and its direct consequences. Anyone may kill any dog who runs at him in the public highway or on his own land in a threaten- ing way, or if he is wounding or chasing cattle or sheep in his own pastures. In States requiring that dogs should be licensed, if they are not licensed they are outlawed, and may be killed anywhere by any person who is where he has a right to be. SECTION IX. SALE WITH WARRANTY OF ANIMALS, OF SEEDS, AND OF FERTILIZERS. In our chapter on sales, section 4, we treat of sales with war- ranty. We would add here some statements of the law which have an especial reference to farmers. I. Of Animals. — Farmers often buy and often sell animals, and it is important to know when the sale is with war- ranty and when it is not. This is sometimes a difficult question. If the word warranty is used there is no question. But this word is not essential, and if it is not used there may still be a question whether there is a warranty. There is one rule stated in our chapter on sales of frequent importance. It is that if any thing be bought for a special purpose and this purpose is made known to the seller, it is considered in law 8io LEGAL EIGHTS AND OBLIGATIONS OF FARMERS. that the thing is sold with a warranty that it is fit for that purpose. This rule has been applied to the sale of a horse without express warranty. Mere statements or declarations in circulars or advertise- ments, or those made in the course of conversation, would not amount to a warranty even if the buyer relied upon them and was deceived by them. But the law seeks to check the fraud which is often perpetrated in this way by the rule that, if the representations were made in the negotiation for the sale and formed a part of it, if they were intended to cause the sale and did help to cause it, then these representations would be a war- ranty in law with all the effects of a warranty, even if the seller made them honestly. The warranty may be limited either as to its application or as to time. For example, a horse may be sold with warranty against lameness or against glanders, and then there would be no warranty against anything else. Or he may be sold with warranty to last only twenty-four hours, as is frequently said at sales of horses by auction. Then the horse must be returned for unsoundness or any other defect, or a claim be made for a breach of warranty within twenty-four hours after the sale. 2. Of Seeds. — Not only farmers but everyone who has a lot of ground no bigger than a table-cloth, or even a dozen flower pots in which he tries to grow flowers or fruit, knows what an annoyance it is to find the seeds he bought and sowed different from what they were bought for, or lifeless or worthless, and that season's cultivation lost. Only a farmer knows the extent of the loss which he may suffer from this cause. And here the law comes to his aid, and if farmers gen- erally knew the remedy in their power and applied it generally, it might be hoped that this fraud might be lessened or punished. The rule that anything sold for a special purpose is sold wilh a warranty that it is fit for that purpose applies here. And it has been decided in some of our States, and we think would now be in all of them, that if a buyer asks a seller for seed of a partic- ular sort or variety and he sells him seed as good seed of that particular sort or variety, and it turns out to be not of that sort or variety but of some other, or dead and worthless, the seller HIRING OF HELP. 8ll is liable to the buyer not merely to the extent of the price paid for the seed, but for all the direct damage which he may have suffered therefrom, as the cost of preparing the field for the seed or the difference in value between the crop which he raised and the crop which would, with reasonable probability, have been raised upon the field if the seed sown had been what it was sold for. And the seller will be thus liable without any express warranty, even if he had been honest and had bought the seed as that which he sold it for, and believed it to be that, and the fraud or mistake was not his own but the man's from whom he bought it. We have no doubt this rule would be applied in the same way where one who bought young grafted fruit-trees as of a particular variety, and they were sold expressly as such, was deceived and injured in a similar way. 3. Of Fertilizers. — A great deal of fraud has been practiced in the sale of fertilizers. This is now much diminished by the better knowledge of the subject possessed by farmers and gardeners, and also by the laws of some of the States. It would always be safer for the buyer to insist on a warranty. But this should not be a warranty of the general quality and character of the article, for such a warranty would be of little practical use except in extreme cases. The warranty should be as to the ingredients of which the article consists, and as to the percentage quantity of these. If it be a chemical fertilizer this is easily ascertained by a chemist. The most essential of these ingredients are phosphorus, nitrogen, and potash. These elements exist in artificial fertilizers under different forms. When the amount of each of them in a hundred weight of the article is known to the buyer, it is easy for him to acquire the knowledge necessary to judge of the eificacy and value of the fertilizer. SECTION X. HIRING OF HELP. I. Rights and Duties of Help. — In England the law of mas- ter and servant some generations ago was strict, nor has it lost all this character yet. Our fathers brought over to this country much of this law, but it has entirely lost all its force in all our 8l2 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. States. Now the relation of the hirer and the hired is purely one of contract. The hired man agrees to sell so much of his time, labor, or skill to the hirer, and the hirer agrees to pay so much money for what he buys. It is a contract of help and of payment for help, and both parties are held to their contract, and neither beyond it. In the first place, both parties may make just such a bargain as they like. They may make a complete bargain concerning all items, or a partial one, or none at all. In the next place, if a man works for a farmer with a partial bargain, or no bargain at all, but at the farmer's request or with his knowledge and acceptance, the law comes in and com- pletes the bargain, or makes one for the parties. It does this on the principle that the working-man undertakes to do his work reasonably well, or according to any prevailing and acknowl- edged custom as to time and manner. And then that the farmer is bound to pay him a fair and reasonable price, measured by the custom of the time and place, if there is one applicable to the case, and by the judgment of the jury before whom the case comes. A much more difificult question arises when a man who is hired to work on certain terms, for a certain time, works a part of the time as he ought to and then leaves his work and his employer. Can he recover from his employer payment for the work that he has done ? There is some conflict in the law about this — that is, in the decisions of the courts on this ques- tion — and therefore some uncertainty as to the law. This diffi- culty springs from a rule of law relating to what is called " Entirety of Contract," which rule is, that if a party to a con- tract in which he engages to do one whole thing does only a part of it, he cannot claim payment for that part. In most cases this is perfectly reasonable. If a man agrees to sell a farm of a hundred acres for the price of $10,000, he cannot say, I have concluded to sell only half my farm, and you must give me for that $S,ooo. But where the whole thing consists of divisible parts, and to each part a proportionate part of the money can be applied, the rule is of course modified. Thus if A agrees to sell to B, and B to buy of A, one thousand bushels of HIRING OF HELP. 813 potatoes of a certain quality at one dollar a bushel, if A deliv- ers to B five hundred bushels and refuses to deliver the rest, B can say, I want my thousand bushels or none, and may then return to A the five hundred bushels received, and A has no claim on him. But he may choose to keep the potatoes received, and then he must pay for them the price agreed upon, and so he must if he has sold the five hundred bushels and cannot deliver them. But, on the other hand, he has a valid- claim against A for anything he may lose by A's failure to deliver him that other five hundred. If, for instance, potatoes have risen in value to one dollar and fifty cents a bushel, B has lost by not receiving that five hundred bushels two hundred and fifty dollars, and may deduct this from what he has to pay. If the same rule were applied to the case of a man who at the beginning cf the year engaged to work for all that year at fifteen dollars a month, and who worked for five months and then left at the be- ginning of the hay-making season, and then wages were at thirty dollars a month, the hirer would pay him fifteen dollars a month for the time he worked, deducting therefrom whatever he lost by the necessity of paying higher wages, and whatever he lost otherwise by the hired man's failure to perform his contract. Such is the view taken of the question by some eminent judges. But the greater part of our courts apply the rule strictly. They hold that if a hired man engaged for a year, leaves without suffi- cient cause at the end of the eleventh month, he forfeits all his wages and has no claim against the hirer for any part of them. All courts agree that if the hired man leaves because of insuffi- cient food, ill-treatment by the hirer, disabling sickness, or other sufficient cause, the hirer is bound to pay him for the time he worked. It may be added that it is important for the farmer to know and regard the rules pointed out in our chapter XII on the stat- ute of frauds, especially in section in. 2. Liability of the Farmer for the Wrong-doing of his Help. — This liability rests upon an ancient rule of law, " What a man does by another he does by himself." Thus if a farmer ordered his hired man to steal his neighbor's sheep or wood, the hired man would be held as a thief, and the hirer would be 8i4 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. responsible also. But the hirer would not be responsible for the thefts of his help without his order or assent. All this is plain enough. The difficulty comes afterwards. It comes from the extension of the rule which makes an employer responsible for the negligence or ill-doing of one employed by him while actually engaged in doing what he is lawfully employed to do. The cases on this subject are numerous and some of them severe. Thus, if a farmer sets his help to cutting his wood and tells him distinctly where his line is, and the man forgets or mistakes and goes beyond that line and cuts his neighbor's wood, the farmer is responsible. If the hirer directs his help to build a fire in a safe place to burn up his rubbish, and charges him to take thorough care of it, and the man goes to sleep and lets the fire run into his neighbor's land, the farmer is responsible for all that this fire destroys. SECTION XII. HIRING OF A FARM. We have considered the case of purchasing a farm. The great majority of farmers own their farms. But there are many exceptions. A man may hire a farm for a term of years, paying rent, or on shares, or on a tenancy which may be put an end to at the will of either party. I. Hiring by Lease. — In our chapter on leases, page 6io, we have given the general rules and principles governing leases, together with a variety of forms. We will now give some further rules and offer some suggestions upon points which it may be useful for a farmer to know and understand. Any general description will suffice to put the tenant in pos- session of the land intended to be hired, if it be capable of dis- tinct ascertainment and identification. And for this purpose certain words in common use, such as farm, land, house, field, wood-land, and the like, would be held to have a wide meaning. When such general and comprehensive terms are employed, all such things as are usually comprehended within their mean- ing will pass to the hirer by the lease, unless the language of the lease or the circumstances of the case show plainly that the intention of the parties was different. And inaccuracies as HIRING OF A FARM. 8lS to quantities, names, amounts, etc., will be rejected if there is enough left to make the purposes and intentions of the parties certain. If the parties have undertaken to make a written bar- gain and have not made it, the law will not undertake to make one for them. But it will do all that can reasonably be done to carry into full effect, and exactly as was intended, the written bargain they have made. Nevertheless there is a rule, not of law, but of common sense and prudence, which is applicable to everybody in all matters, but to no persons more so than to farmers in relation to their farms. This rule is, that it is at once easier and wiser to make all bargains and contracts such as will avoid questions and doubts than it is to answer these after they arise. 2. Renewal of Lease. — The lessor is not bound to renew a lease without an express covenant to that effect, which may be in the lease or in a separate instrument. A mere understand- ing or verbal promise is not sufficient in law, whatever it may be in honor or in morals. The law does not favor such covenants, because they tend to perpetuity. But if there be such a covenant, and it is definite and reasonable, the law will sustain it. A covenant to " renew this lease under or with the same covenants " does not require that the new lease should con- tain the same covenant of renewal. For this would make the lease indefinite and perpetual at the pleasure of the hirer. But the covenant to renew covers all the other covenants and agreements of the lease. A covenant to " renew on such terms as may be agreed upon " is void for uncertainty. 3. Remedy for Non-payment of Rent. — Leases now in use almost always contain provisions on this subject, which are, gene- rally, that the lessor may enter and expel the tenant if the rent be not duly paid, or that the tenant forfeits the lease and all rights under it by non-payment of rent. Provisions to this effect are expressed in various ways, but are substantially the same every- where, and no particular words are necessary for this purpose. But it should be known and remembered that the law is exact and even punctilious as to the exercise of this right of re-entry. It may be said in general, that to justify re-entry in case of for- 62 8l6 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. (eiture a demand must be made for the rent due and for tlid precise sum, and on the very day on which it becomes due and payable, and of the tenant himself, or if a place be prescribed in the lease where it is payable the demand must be made at that place, and if no place be prescribed then of the tenant himself, or at a conspicuous or notorious place on the premises leased. Of course when the rent is due it becomes a debt, for which all the ordinary means of recovering a debt may be resorted to. But if there be no clause of forfeiture for non- payment of rent, the lessor has not, at common law, a right of re-entry for this cause. 4. Tenant's Right to Vacate the Premises and Give up THE Farm. — As the owner and lessor may expel the hirer and ter- minate the lease if he does not pay his rent, so the hirer has cer- tain rights in this respect as against the owner. In England, from whence we derive our law, this law is very severe against the tenant. There the landlord is under no obligation to inform an intending lessee of defects or objections which he knows and the lessee neither knows nor has means of knowing, although the defects are entirely incompatible with such use of the premises as the lessor knows the lessee intends to put the farm to and indeed hires it for. The rule in this country may not be entirely settled. But we are decidedly of the opinion that a lessee who is so deceived, when he finds that he cannot cultivate the farm or make use of it in the manner he intended, may throw it up and the lessor has no claim against him. Still more certain are we that the lease is cancelled and all right to rent is lost by any violent outrage or indecency on the part of the lessor, or any intentional and material interference by him with the tenant's proper use and enjoyment of the farm. 5. Apportionment of Rent. — The owner of a farm which he has let to a tenant can sell it as freely as if it were not leased. But he sells his farm subject to the lease, for he cannot impair the rights which the lessor has under the lease. The buyer becomes the lessor and has all the original owner's rights and is subject to all of his obligations which run with the land. So the owner may sell a part of the farm, or may sell the whole in parts to different purchasers, but this does not extinguish the obligations of the hirer or lessee, nor does it transfer them all HIRING OF A FARM. 817 to any purchaser. So also the owner retaining his ownership may assign a portion of the rent — as one-fourtli, or one-third, or one- half, or any other portion — to an assignee. Whether the owner sells a part of the farm, or the whole in parts to different pur- chasers, or assigns a part of the rent or the whole in parts, there must be an apportionment of rent. The tenant must pay the same rent as before, but now he pays it to the persons en- titled to it, in the proportion in which they arc entitled to it. If the owner sells his farm in undivided parts, as one- half or one-third to one buyer and the residue to another, but with- out boundaries, there is no difficulty in apportioning the rent in the same way. But suppose the owner sells a part of the farm by boundaries, as if he sells certain fields or lots, the rent must now be apportioned according to valne and not according to quantity. Here again the tenant has no other interest than to ascertain to whom he must pay his rent. If the owners and the buyers of the fields or lots agree together as to the appor- tionment of the rent, the lessee is bound by their agreement, because it is of no importance to him to whom he pays his rent. If they do not agree, it is a question of fact which a jury must settle for them. So there may also be an apportionment by time, as when the lessor dies in the middle of the term for which the farm is leased. The lessee is now liable to the executors or adminis- trators of the deceased for so much of the rent as accrued before he died, and to the heir afterwards, or to the heirs in the proportions in which they inherit the farm. 6. Cultivation of the Farm. — In our chapter on leases it is said that the tenant of a farm is bound, without express cov- enant, to manage and cultivate the same in such a manner as good husbandry and the usual course of management of such farms in his vicinity require. But it is seldom wise to leave this matter wholly unprovided for by express agreement. The owner and the hirer of a farm generally have an understanding on this subject, and this should be reduced to writing in the lease. Perhaps if nothing else be understood between them but customary and reasonably good cultivation, it is safe enough to leave this to the law. But more may be agreed upon, and espe- 8i8 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. cially there may be a distinct bargain as to certain crops, or a certain rotation of crops, or the cutting of wood, or what fields should be broken up or sown, and what, when, and where manure shall be placed, or what land sown to grass, etc. All these things should be most distinctly and carefully set forth in the lease as agreed upon. For no merely verbal agreements would have any effect. For here, as elsewhere, in accordance with the important rule laid down on page 74 of this volume, no evidence would be received to vary the lease or add to or diminish its obligations. For the purpose of showing how and where special stipula- tions may be inserted we give the following form. The clause concerning renewal may be omitted if there is no agreement. (243,*) A Form of a Lease of a Farm. This Indenture, Made tlie clay of in the year of our Lord or.e thousand eight hundred and ■Witnesseth, That I, {name and residence of ihe /^jj(>r) do hereby lease, demise, and let unto {name and residence of lessee) a certain farm or parcel of land, in the city (or town) of county of and State of with all the buildings thereon standing, and the appur- tenances to the same belonging, bounded and described as follows : {The preijiises need not be described qtiite so tninntelv or fully as is proper in a deed or mort:;age of land, but tnust be so described as to identify them perfectly, and make it certain just what premises are leased^ To Hold for the term of from the day of yielding and paying therefor the rent of And said lessee does promise to pay the said rent in four quarterly pay- ments on the day of , {or state otherwise just when the payments a~e to be made) and to quit and deliver up the premises to the lessor or his attorney, peaceably and quietly, at the end of the term, in as good order and condition, reasonable and proper use thereof, fire and other unavoidable casualties excepted, as the same now are or maybe put into by the said lessor, and to pay the rent as above stated, and all ta.xes and duties levied or to be levied thereon, during the term, and also the rent and taxes, as above stated, for such further time as the lessee may hold the same, and not make or suffer any waste thereof; nor lease nor underlet, nor permit any other person or persons to occupy or improve the same, or any part thereof, or make or suffer to be made any alteration therein but with the approba- tion of the lessor thereto, in writing, having been first obtained ; and that the lessor may enter to view and make improvements, and to expell the les- see, if he shall fail to pay the rent and taxes as aforesaid, or make or suffer HIRING OF A FARM. 819 any strip or wasle thereof, or fail to fulfill any of the obligations hereinafter recited. That is to say, \he said lessee hereby covenants and agrees that he will cultivate the said farm during all his possession of ihe same, in such manner as good liusbandry requires, and in especial, ihat he will (here insert carefully and fuVy all tlu agreements which the parties have iiiade respecting the cultivation of the farm or to which the lessor intends to bind the lessee, and to wh'ch the lessee is willing to he bound). And the said lessor en his part covenants that he will, at the request of the said lessee, rerew the lease for the period of years, to begin at the expiration of h!s lease. In Witness Whereof, The said parties have hereunto interchangeably set their hands and seals the day and year first above written. (Signature ) (Seal^ {Signature) {Seal. Signed, Sealed, and Delivered in Presence of 7. Hiring on Shares. — It is a common practice in many parts of this country, for the owner of a farm to let it " on shares." In some countries the great body of the land is let in this way ; the proprietor finding for the use of the occupier, such cattle, seeds, implements or tools as may be agreed upon, and the tenant or occupier of the land paying to the proprietor the agreed proportion of the produce. This proportion varies in those countries with varying circumstances, from one-tenth to one-half ; being generally from one-third to one-half. If par- ties in this country make a bargain of this sort, and wish to reduce it to writing, the foregoing form of a lease will answer their purpose, provided they write, in the place of the agreement about rent in that form, what each of the parties agrees to do by their bargain ; the one as to what the lessor shall provide for the use of the hirer, and the other as to what share or propor- tion of the produce the lessee shall pay or deliver to the lessor or owner, and how it shall be delivered. Other rules as to the rights and obligations of farmers as owners or hirers of a farm, or lessors and lessees, or landlord or tenants, will be found in our chapter XXXI on leases. Among them are the rules relating to repairs, and the obligation of either party to make them. Rebuilding in case of fires. Assignment of lease, or underletting of the whole or a part of the farm. The rights of out-going tenants to crops which he sowed and which mature after he leaves the farm. Tenancy at will, and notice to quit ; and other like points. For the law on these subjects we refer to that chapter. INDEX. A, Abandonment, in the law of marine insur- ance, meaning of, 402. not obligatory on insured, 403. necessity of, 403. of tha right of, 403. of the exercise of the right of, 405. how made, and by whom, 405. must be distinct, 405. if deficient inform, objections, how waived, 406. ■whan insured must elect whether or not to abandon, 406. acceptance of by insurer, 406. of th2 effect of, 407. Iiiastcrs and owners become trustees for the insurers in respect to the property abandoned, 407. loss after must be mads up by owner, 408. Acceptance, of offer, when necessary to make a contract, 69. of bills of exchange, 209. how may be made, cancelled, etc., 209. can be done only by the drawee, his agent, or come one who accepts for his honor, 210. no holder is obliged to receive an accept- ance for honor, 211. holder may accept or refuse a qualified, 210. presentment for, 194. or payment, for honor, 210, ,2ti. of abandonment in insurance, •106. of insurer, not necessary to give full effect to an abandonment, 406. Acceptor, of biU of exchange, 177. of bill, bound to pay the same at maturity, rights and duties of. 209. Accommodation Paper, incidents of, iSS. Acknowledgment, necessary before record- ing deeds, 449. Actions, abstract of the laws of all the States respecting the commencement of, 705. Adjustment, of average, 347. by whom made, 34S. when binding, 347. difference between marine and fire policy in, 431. Administrators, and executors, law of, pow- ers and duties of, 770, Affirmation, of consignee or agent, 370. Agency, in general, 219, 320. may be established by subsequent ratifi- cation, 222. general rules of, 222-226. rights of action, growing out of, 227, 228, Agent, acting under del credere comniisshn^ 232. must obey all instructions, 233. commercial jurisdiction over seamen, 35S. extent and duration of authority of, 224— 226. general and particular, 220. binds the principal by his acts, 219. ^ liability of, 224. may receive his authority, how, 221-224. acts of, may be ratified by principal after- wards, 222. may insure against fire, 421. when n>aster of sliipis, 352. in general, is entitled tp indemnity f'^om prindpal, 230. cannot appoint a sub-agent unless author- ized, 230. is bound to use all reasonable care and skill, 230. is responsible for any breach of duty, 230. employed to sell property, cannot buy it himself, 231. must keep exact account of all doings, 231. when he jnay throw up the agency at pleas- ure, 232. authority of, is revoked by insanity, 232, (821) 822 INDEX. Agreement and Assent (cliap. vi), 69. th2 legal meaning uf, and requirement of, 69. when parties understand each other differ- ently, what their rights, 70. in ccnatruing, the intt.ntiun of the parties ahvays a guide, 70. mistakes of fact in, may b2 corrected by the courts ; mistakes of law cannot be, 70. what a l^gal assent is, 71, offers mad: on tUne, 72. a bargain made by correspcndcnc?, 73. what evidence may bs received in refer- ence to a written contract, 74. of custom, or usage, 76. to do work, when broken by promisor, without good cai;se, he cannot recover, 116. xxdes for determining, when original agree- ment has bscn somewhat departed from, 117. when may be and when it should be made without seal, iiS. when imder seal, and so fomicd that it be- comes an indenture, 118. when by one only, without seal, it is a sim- ple promise, iiS. when by one only, under seal, it becomes a bond, I iS. to be performed within a year, when not affected by tiie statute of frauds, 159. form, and subject-matter of, 160. if name bo printed to, may be sufficient sig- nature, 160. when it should be written and signed by both parties, 79. % not controlled by oral testimony, except in case of fraud, 79. for sale of lands, should always state cov- enants contemplated, 87. for arbitration, not binding on any, unless all have entered into it, 114. Alabama, law as to rights of married women in, 40. days of grace allowed, and legal holidays in, 215. statute of limitations in, 296. usury laws of, 315. number of witnesses and acknowledgment required to deeds of land executed in, 545- abstract of laws relating to collection and recovery of debts in, 705. chattel mortgages regulated by statute in, 659. Alabama, number of witnesses to wills neces- sary in, 766. meclianics' liens, abstract of law of, 746. Alienation, in the law of insui-ancc, what is considered such as to terminate the in- sured's interest, 429. consent of insurer should be obtained to, 429. of policy, 430. Allowance, in the law cf insurance, of new for old, 409. Alterations, of policy of insurance, 377, effect of, en insured property, 418. prudent to obtain insurer's assent to, 419, Apprentices (chap, iv), 34. obligations of the master, 35. obligations of the apprentice, 35. what misconduct of, authorizes a dischargo of him by his master, 35. seducing an apprentice away from his mas« ter, liability for, 35. Application, for insurance, how made, 415, Arkansas, law as to rights of manied women in, 40. days of grace allowed and legal holidays in, 215. statute of hmitations in, 296. usury laws of, 315. number of witnesses and acknowledgment required to deeds of land executed in, 545- abstract of l?-'.vs relating to collection and recovery of debts in, 705. chattel mortgage regulated by statute in, 660. number of witnesses to wills necessary in, 766. mechanics' liens, abstract of Jaw of, 746, Arbitrators, submission to, when it may bs set aside by cither party, before award made, 266. Arbitration, is favored by law, 262. Articles of shipping, 356. Arrest, of vessel, how affecting insurers, 396. abstract cf tlic laws of all tiie States re- specting, 705. Assignment, definition of, 127. cf policy of insurance, 37S. of policy, avoids it, when, 430. cf policy, should bo made on it, 435. always best to secure the insurance com- pany's assent to, 435. of policy, what constitutes, in life-insur- ance, 441 Attachment. — See Recovery of Debts, 703- INDEX. 823 Attachment, abstract of the laws of all the States respecting, 705. Authority, extent and duration of agent's, 224. execution of, must be confoniicd to with strictness, 226. of ship-master, 332. Average, general, 344. when within the scope of insurance, 40S. what is not included in, 345. adjustment of, 347. adjustment of, by whom made, when, 349. AWAKU, c:-3cntial3 of, z(i2.. must be certain, =63. must be possible, 263. when fully made, none of the parties have further control, 267. should be sealed up and delivered to all the parties, 267. must be reasonable, 263. must b3 final and conclusive, 263. no especial form cf, necessary, 265. the directions in submission of, must be strictly followed, 265. set aside, if " procured by corruption or undue means," 265. set aside, if the arbitrator has made a ma- terial mistake of law or fact, 265. B. Bailee, may insure against fire, 422, Banks, receive more than legal interest, 312. Bank Bills, are promissory notes of a bank, payable to bearer, 186. a good tender, unless objected to at the time, 186. Bank Check, is a bill of exchange, 186. requires no acceptance, 187. if drawn when drawer has no funds in the bank, it is a fraud, 1S7. usually payable to bearer, 187. is not payment till cashed, 187. countermanded by death of drawer, 188. if a bank pay a forged, it is its own loss, 188. Baggage, carrier liable for reasonable amount of, 283, 284. what has been held as, 283, 284. Bargain, naked, is when no consideration is given. III. for real property, void when oral, 456. Barratry, how defined, 396. how provided against in the policy, 396. Bill of Lading, essentials of, 334-336- signed by master of ship, 335. evidence against shipowners, 335. Bill of Lading, hov/ jj'vcn in cncc cf cliar* ter parties, 341. Bill, IcgrJ meaning of, 163. of exchange, foreign and inland, 1C9. maker or acceptor of, how bound to pay the same, 193. wliat is meant by foreign, 200. loss of, no excuse for not protesting it, 200, notarial seal, evidence of dishonor of for- eign, 200. paid at maturity ceases to be negotiable, 209. portion of, cannot be transferred, 209. may be transferred by indorsement of executor, after death of the holder, 209, of sale of vessel, 361. of exchange, is what, 176. difference between parties to promissory note and parties to, iSo. Blockade, what it is, and law of, 397. when it may be run, 397. Boarders and guests at hotels, distinction between, 289. Bond, essentials of, 118. condition of, 119. of bottomry, 331-333. of respondentia, by whom given, 354. " applies to wli^t, 354. Bottomry, contract of, 331-333. bond of, 331-333- pledge, when justified, 353. Brokers, have generally no authority to receive payment, 234. Business Law, in general, in chap, ii, 27. Buyer, acquires the right to consider no sale as made, if the seller neglects or refuses to deliver the goods in reasonable time, 133-^ when imposed upon by fraudulent sale must at once exercise right of annulling it, as soon as he knows the fraud, 142. California, law as to rights of married women in, 40. days of grace allowed, and legal holidays in, 215. statute of limitations in, 297. usury laws of, 315. number of witnesses and acknowledg- ment required to deeds of land executed in, 545. abstract of laws relating to collection and recovery of debts in, 706. chattel mortgages regulated by statute in, 660. 824 INDEX, Califot^xia, nv.nib;r of witnesses to wills ncccssaiy in, 767. mcclianics' liens, abstract cf law cf, 747. Canada, lawii cf, 5^, 692, 700. usur" Uws cf, 315. Capture, how afrcctinrj ir.2v.rcrs, 397. Cakgo, a part cf tlic, when l:;r;al, may ba insiircc!, 3C2. when EolJ, or plcdrcd by master, ",^3. Carriei!, is llabla only for goods delivered to llllTl, zZ\. is Kabl:; cn!y for injuries done by himself or servants to third persons, 2C5. private, liability of, 265, 270. when gratuitous bailee, 270. private, llalib for gross negligence, 270. commcn, who is a, 271. commcn, rights and responsibilities of, 271. common, distinction between private and, 27f. common, who arc chargeable as, 271, 272. c^niMif.n, obligation of, 273-27S. common, cannot refuse goods without good cause, 27^. common, is boi;nJ to receive goods in a suitable way, and at suitable times and places, 274. common, is bound to comply with direc- tions, 274. common, obligation as to passengers, 274, 275. common, obligation as to delivery of gr.ods, 276, 277. common, immediate notice must be given when not delivered to owner or agent, 276. common, lien of, on goods, 27S. common, liability of, 278-280. common, liable for loss happening under his charge, except for act of God or public enemy, 279. common, liable for loss by fire, 279. common, general principles of agency apply to, 280. common, may be liable beyond his own route, 2S0. of passengers, is under more limited liability, than carrier of goods, 280. common, has a right to modify his liability by bargain, 2S1. common, notice by, if reasonable and just, is binding, 2S1. liability of, for goods carried by passengers, 283-2S5. Kable for necessary amount of baggage, 283, 284. Carrier, may incurc against fire, 422. Charter, power of master to, 332. CliARTEnn:;, of shi;-*, rights of, 340, 341, CiiARTET. Party, 363. dcfmcd, 340. no particular form for, 341. liow suspended cr annulled, 3 •.*. contract of, may be dissolved, how, 344, Chattel Mortgages, abstract tf the laws of S.11 the States rcspeclln;;;, 659. Chose:: i::rossESSiox, a bw-tcmi, explained, Choses in Action, a law-term, explained, 3S. Claim, for contribution, 344. cf insured, founded on interest, •^^. Codicils, meaning of, law of, and rules con- cerning, 75S. Collision, who liable for, 354. rules in regard to, 355. a peril of the sea, 395. Colorado, law of as to rights of married women, 41. days of grace allowed, and legal holidays in, 215. statute of limitations in, 29S. number of witnesses and acknowledg- ment required to deeds of land exe- cuted in, 545. abstract of laws relating to collection and recovery of debts in, 707. chattel mortgages, regulated by statute in, 660. number of witnesses to wills necessary in, 767. mechanics' liens, abstract of law of, 747, Common Carrier. See Carrier. Common Law, as distinguished from statutes, 27. Commerce, power to regulate, in Congress, Commercial Agents, jurisdiction of, over seamen, 358. Compound Interest, See Interest. Companies, for effecting fire insurance, 411. mutual, compared with joint stock, 411. usage of each other, may be appealed to in what cases, 413. all insured, become members in mutual fire insurance, 411. Compliance, with terms offered, when it makes a contiact, 71. Concealment and misrepresentation, 389, converse of representation, 425. effect of, 42 V when would operate as fraud, and avoid the policy, 426. INDEX. 825 Concealment, in case of life insurance, 44I-443- Condition, of a bond, 119. on which application for insurance is based, 415. effect of, in deed, 453.' Confession, of judgment, 211. Connecticut, law as to rights of married women in, 42. days of grace allowed, and legal holidays in, 213. statute of limitations in, 297. usury laws of, 315. number of witnesses and acknowledgment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery of debts in, 708. chattel mortgages regulated by statute, in, 660. nunibsr of witnesses to wills necessary in, 767. mechanics' liens, abstract of law of, 747. Consideration, required to support a prom- ise, III. exceptions to the rule requiring considera- tion for a promise, 1 1 1, sufficiency of, 112. ■what is a sufficient, t 12-1 14. cannot be anything by which the pubfic interests are harmed, 113. one promise is sufficient, for another, 113. failure of, 116. when failure is partial only, may be foundation for promise, 116. merely moral, is not in law a sufficiently legal, 114- illegal, 115. impossible, 115. Implied by seal, 120. need not be alleged in a bond, 120. need not be expressed in agreement, 160. what it may be, valuable, legai, or moral, 192. none sufficient when illegal, 192. may be illegal, in how many ways, 192. for tlie insurance, 376. Consignee, may assign bill of lading, 33^. cannot abandon goods for freight so long as they remain " in specie," 339. oath or affirmation, 371. may insure against fire, 421. may cover in one policy, in his own name, goods of various consignors, 421. not bound to insure, but may in his dis- cretion, 421. Construction, of statute of limitations, 291. Consuls, jurisdiction of, over seamen, 358, Contract, for building, should always be accompanied by specifications, 94. void for illegality or fraud, 140 when "wager,"' 141. is vitiated and avoided by fraud, 141. in general, the law of place governs every, 189. law of the court determines all questions as to remedy on a, 190, for usury, wholly void, 309. foreign, for usury, valid everywhere but in the States where suit is brought, may be enforced there, 311. law of place of, governs construction of, 320. valid where made, valid elsewhere, 319. is made when, 320. is made where, 320. as influenced by law of place, 320, 321. of bottomry, 331-333. of affreighmient, is entire, 336. of charter party, how dissolved, 344. of insurance, 376. of insurance, when complete, 413. of insurance must be strictly regarded, 413- general principles of construction of, 782. some general rules of construction of, 783. Contribution, claim for, durmg embargo or capture, 344. how made, 344. for ship's repairs, 345. Conveyances, of ships, recorded, 324. by one insured, when treated as a mort- gage, 430. Covenants, of special or general warranty, should be stated in agreement for sale of lands, 87. of warranty, in deed, 453, 454. Copyrights, law of, 695. what may be the subject of, 696. how copyrights may be obtained, 697. period of time for which they secure the right, 6g6. punishment for infringement of copyright, 69S. agreement respecting copyrights and pub- lishing, 700. Coverture, a law-term, means marriage. Creditors, partnership, cannot attach pri- vate property till private creditors are satisfied, 253. levy of private, on partnership property, confers only what the partner has, 253. 826 INDEX. Creditors, have an insurable interest in life of their debtor, 440. Custom, of merchants, its force and effect, 28. not valid if illegal, 29. has no force when contract made express- ly to the contrary, 78. or usage, made use of in construing the meaning and effect of a contract, and of the words used, 76, 77. never considered, if parties expressly agree to dii-regard it, 7S. effects of, on contracts, 7S8, D. Dacotah, days of grace allowed, and holi- days in, 215. statute of limitations in, 298, Damages, when liquidated, when unliquidated, 148, 308. Days of Grace and holidays in all the States, abstract of, 21;;. Debt, barred under statute of limitations, 291. Debtor may insure his life in favor of creditor, 440. Debts, recovery and collection of, 703. Deed, meaning of Ic^al and common, 446. should be signed, and in what manner, 446. seal of, is what, 447. should bs delivered, 447. may ba delivered by what persons, 448. execution of, should bs attested by wit- nesses, 448. acknowledgment of, incidents of, 449. must be registered in the proper record- ing office, ^50. effect of non recording, 451. should be dated, 451. customary to name consideration in, 451. receipt of consideration in does not bind seller, 452. description of land in, should be minute and accurate, 452. when conferring life intersst, merely, 452. when conferring fee-simple, 453. terminated by clause of execution, 453. of warranty, or of quitclaim, 453, of quitclaim, with warranty, 454, hardly safe to have condition in, 455. as to husband and wife joining in, 455. variety of, 456. deed-poll explained, 457. of indenture, 457. of mortgage, 548. abstract of the laws of all the States relat- iiig to, 545. Delaware, law as to rights cf married women In, 43. days of grace allowed, and legal holidays in, 215. statute of limitations in, 29S. usury laws of, 316. number of witnesses and acknowledgment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery of debts in, 709. chattel mortgages regulated by statute in, 660. number of witnesses to wills necessary in^ 767. ^ mechanics' Hens, abstract of law of, 747. Delivery, what is sufficient to constitute, 135, 136, 138. as bearing on the validity of the trans- action, 137. of policy, not esFential, 413. necessary to assignment of life-policy, 441. essential to valid. ty of deed, 447. of deed, may be made by whom, 448. Demand of Payment, is sufficient, if made at resic'ence or place of business of payee, 197. and refusal, what constitutes, 197. bankruptcy or insolvency no excuse for non demand, 197. should be made at the proper place, 199, for payments should be made at the placa designated in the instrument, 199. Demuk.;aije, J.i>." rcjjpictjnj, 3^4. Description', of property msured, 39a. in the policy of insurance, 413. of insured property, held to amount to what, 416. Desertion, of seamen, how punished, 35^ Deviation, how defined, 39S. how affects insurers, 398. District of Columbia, interest and usury laws of, 315. Domicil, of person, how determined, 32i,-324_ a person can have but one, 322, first is retained till second is acquired, 32^ may be changed, how, 322. woman marrying acquires her husband's, 324- of the father determines that of childj 324. Drawer, to bill of exchange, 177. E. Equity of Redemption, of mortgagor, 549- INDEX. 827 Evidence, of death, what must be, 439. may disprove receipt in deed, 452. cannot be received to contradict or change the effect of a written contract, but may b2 received to explain it, 74.- admissibility of extrinsic, to affect con- tracts, 791. Exception, to common law rule, in case of negotiable paper, 190. statutory, under statute of limitations, 294. Executor, may indorse bill or note after deatli of holder, 209. Executors, law of, powers and duties of, 770. Execution, of authority, 226. of fire policy, 413. Exemption, of property, from attachment or execution, 704. Exemptions, abstract of statutary provisions respecting in all the States, 705. Explanation, of a written contract, by evi- dence, law as to, 74, 75. Factor, may pledge goods for advances to principal, 233. must obay all instructions, 233. liable to principal for default, 233. may insure goods in possession, 233. may use his own name in all transactions, 234- distinction between foreign and domestic, 234, 235- cannot claim his commissions till his whole duty be performed, 234. Farmers, rights and obligations of, 795. for particulars see close of tliis Index, 843. Feme Covert, means a married woman. Feme Sole, means a single woman. Fire Insurance, to what applied, 411. by whom effected, 411. different kinds of companies for, 411. method of, 415. Foreclosure of Mortgage, explained, 550. Foreign- AND Inland Bills, 1S9. Florida, law as to rights of married women in, 43. days of grace allowed, and legal holidays in, 215. statute of limitations in, 298. usury laws of, 316. number of witnesses and acknowledg- ment required to deeds of land executed in, 546. abstract of laws relating to coUection and recovery of debts in, 710. Florida, chattel mortgages, regulated by statute in, 660. number of witnesses to wills necessary in, 767. mechanics' liens, abstract of law of, 747. Fraud, annuls all obligations and all contracts tainted by it, ;i. mere silence in seller, in general, is not, 142. vitiates and avoids all sales, 142. may be waived, when, 142. is waived, when action is brought to enforce the contract, 142. statute of, purposes and provisions, 156- 161. Freight, is not earned unless the goods are carried to place of destination, 336. rule for, "pro rata itineris," 337. cannot be earned by illegal voyage, 339. paid in advan:e, not afterwards earned, must be repaid, 339 party receiving goods becomes liable for, 338- lender on bottomry bond has no right to, 339- mortgagee not in possession has no right to, 339- is payable when goods are delivered, in specie, though damaged, 339. word used how, 333. law of, 334. meaning of, 383. interest in, 383. subject of insurance, 383. G. Garnishee Process.— Ssa Recovery of Debts, 703. Garnishment, abstract of the laws of all the States respecting, 705. General Average, 344. sacrifice must be voluntary, necessary, and effectual, 345. law of, rests on, 345. goods not contributed for, when, 346. held for contribution, 347. when jettisoned, owner entitled to contri- bution, 346. value of insured, 3S0. rules relative to total loss of, etc., 408. General Agency. — See Agency, 219. General Agent, master of ship is, 352. Georgia, law as to rights of married women in, 44. days of grace allowed, and legal holidays in, 215. 828 INDEX. Georgia, statute of limitations in, 299. usury laws of, 316. number of witnesses and acknowledgment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery of debts in, 710. chattel mortgages regulated by statute in, 660. number of witnesses to wills necessary in, 767, mechanics' liens, abstract of law of, 748. Guarantor, who is, 150. who pays principal's debt, may demand from the creditor the securities he holds, 151. not bound, unless he has knowledge of the acceptance of his guaranty, 152. discharged, if principal's liability is clianged without guarantor's consent, 152. discliarged, if the liability is extended by law, 152, 153. not always discharged by creditors giving debtor some accommodation or indul- gence, 153. should have reasonable notice of princi- pal's failure, 154. of a note or bill, is not entitled to as strict notice as indorser is, 204. Guaranty, incidents of, 150-153. not generally negotiable, 150. may be enforced, when original debt can- not be, 151. contract of, construed strictly, 151. unless by sealed instrument, must bs sup- ported by a consideration, 151. not binding unless accepted, 152. specific, is not revocable, 153. if by an official, he is not bound personally, 154. margin, what is, 155. oral prevented by law, 157. effect- of changing membership in a firm on, J 53. Guardians, law of, powers and duties of, 7S0, H. Holder, what he may do with a bill or note, 193- of negotiable paper, rights and duties of, 193- of bill, it is prudent for him to present the bill for acceptance without delay, 195, ill-health on part of, may excuse delay in presentment, 195. HoLDPR, may refuse a qualified acceptance, 210. may cancel the acceptance, 210. is not obliged to receive acceptance for honorj 211. Holidays, in all the States, abstract of, 215. Homestead, law of, 704. Hotel-keepers, rights and duties of, 2S8- 290. have a lien on goods of guests for board, 288. must receive every guest, 289. liability of for loss of guests' property, 2S9. Husband, bound to support his w.fo while she lives with him, or if he sends her away without good cause, 60. a man is bound to support as his wife one whom he lives with, and represents as his wife, 60. may indorse a note or bill given to the wife before marriage, 209. Ignorance of Law, exaises no one, 70. Illinois, law as to rights of married women in, 44. days of grace allowed, and legal holidays in, 216. statute of limitations in, 299. usury laws of, 316. number of witnesses, and acknowledg- ment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery of debts in, 711. chattel mortgages regulated by statute in, 660. number of witnesses to wills necessary in, 767. mechanics' liens, abstract of law of, 748. Indiana, law as to rights of married women in, 45. days of grace allowed, and legal holidays in, 216. statute of limitations in, 299. usury laws of, 316. number of witnesses and acknowledgment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery of debts in, 712. chattel mortgages regulated by statute in, 660. number of witnesses to wills necessary in, 767, mechanics' liens, abstract of law of, 748. INDEX. 829 Indorsee, of b'Jl of exchange, 177. Indorsement, is what, 205. by law merchant, bills and notes payable to order are rightfully transferred only by, 206. in full, or in blank, 206. as to special, 207. joint payees who are not partners must join in, 207. Indorsement, the signatures of all previous indorsers are admitted by each, 207. may be restored if struck out by mistake, 20S. may be made on the paper before the note or bill be drawn, 209. in blank, or in full, what they are, 1S5. Indorser, each admits by his indorsement the genuineness of each previous, 207, may make a bill payable to himself alone by special indorsement, 206. of bill of exchange, 1 77. rights and duties of, 205, 206. Infants, or minors, chap, iii, 30. who are, 30. when persons cease to be, 30, promise of, if not for necessaries, Voidable by the infant, 30. promise of, for necessaries, not voidable by him, 32. promise of, may be confirmed, without words, 31. liable for frauds of any kind ; therefore lia- ble if he obtains goods or money by representing himself of full age, 32, 33. ratifies his promise to pay by keeping the thing for which he promised to pay, 33. necessaries, what are, 32. if one avoids a contract because made in infancy, he can take no benefit from it, 33. liable for (oris, or wrong doing, 32. Inn-keepers, rights and duties of, 2S8. Iowa, law as to rights of married women in, 45- days of grace allowed, and legal holidays in, 216. statute of limitations in, 299. usury laws of. 316. number of witnesses and acknowledgment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery of debts in, 713. Chattel mortgages regulated by statute in, 660. number of witnesses to wills necessary in, 767. Iowa, mechanics' liens, abstract of law of, 74S. Insanity; of principal or agent, revokes author. ity, 232. Instruments, irregular and ambiguous, 1S6. Insurable Interest, and how discharged, 378. Insurance, policy of, 376. marine, how effected, 376. how affected by date of policy, 376. proposals for, 376. constructive, 376. who may effect, 376. how it is construed, 377. sustained by compliance with registry laws, how, 3S3. simultaneous, 384. effect of prior, ■^•^, on freight, 383. double, 384. against piracy, 393. against robbery, 393, against thaft, 393. terminates when, 402, purpose and principle of the law of, 409. effect of, in case of partial loss, 409. contract for, when complete, 413. application, how obtained, 475. on what conditions mads, 415. must be actual authority to make, 422. double, not allowed, 423. double, how avoided by charter of com- pany, 423. evidence of overstatement of loss in, 432. fire, no nile in for deducting one-third new for old, 432. companies require sworn statement of cir- cumstances of loss, 433. against accident, disease, and dishonesty of servants, 445. Insured, must communicate what things, 390. must account for proceeds of sale when made by the master under necessity, 405. may abandon, when, 406. party, bound by what rules, 413. all become members when insured m mu- tual insurance companies, 411. must have an interest in the property in- sured, 420. when liable for assessments after loss under mutual policy, 432. must have an interest in life-insurance, 44©. Insurer, how bound by the contract, 376. discharged by concealment or misrepre- sentation, 389. liable for what risks^ 393. 830 INDEX. Insurer, when liable for collision, 395. how far aiiswer.Lble for perils of the sea, 394- held for losses by fire, 395. liable for theft after shipwreck, 395. liable for misconduct of the crew, when, 396- when liable under the general clause, 397. liabilities in case of prohibited or contra- band trade, 397. liabilities in case of capture, arrest, or de- tention, 396. how affected by detention, 396. how affected by deviation, 398. by payment for loss, acquire the insured's claim for contribution, etc., 409. when discharged \yj alterations, 419. must know whom they insure, 422. should be informed of what facts, 426. risk incurred by, 427. when not chargeable, 427. whether held for loss occasioned by negli- gence of the insured or his servants, 42S. liable for buildings blown up to check fires, 427. when liable for property destroyed by lightning, 427. never held to pay more than sum insured, 428. Insurers, against fire, not held to pay for loss of profits, 431. pay whole amount lost, when covered by policy. 431. have a right to rebuild premises when de- stroyed, 4-11. Intention, in construction of policy, 414. Interest, is what, 307. may be demanded, on what grounds, 307. is allowed by law, how, 307. not generally recoverable, when, 308. laws regulating, 308. when usurious, 308. banks receive more than legal, 312. compound, incidents of, 314, 315. compound, is not strictly usurious, 314. method of computing, 315. insured's claim founded on, 381. insurable, 3S0. insurable, how discharged, 381. of the insured, 420. of mortgagor and mortgagee, as to insuring mortgaged property, 420. who have an insurable interest, 420, 421. exception as to the rule of any one allowed to insure property as his own in which he has a legal interest, 421. Interest, of the insured in life insurance, 440, Interpretation of contracts, the, 78. J- Joint-Tenancy, and Joint-Tenants, law- terms ; when two or mere persons own anything jointly, 2.'s> joitit-icuanis^ if one dies, the survivor cr survivcrs take the share or interest of the deceased person, 255. Judgment, confession of, 212. Judgments, abstract of the laws of all the States respecting, 705. Jurisdiction, over salvage cases, 351. K. Kansas, law as to rights of married women in, 46. days cf grace allowed, and legal holidays in, 216. statute of limitations in, 300. usury laws of, 316. number cf witnesses, and acknowledg- ment required to deeds of land executed in, 5^6. abstract of laws relating to ccllecticn and recovery of debts in, 714. chattel mortgages regulated by statute in, 661. number cf witnesses to wills necessary in, 767. mechanics* liens, abstract cf law of, 748. Kentucky, law as to rights cf man-ied women in, 46. days of grace allowed, and legal holidays in, 216. statute of limitations in, 300. usury laws of, 316. number of witnesses, and acknowledgment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery of debts in, 716. chattel mortgages regulated by statute in, 661. number of witnesses to wills necessary in, 768. mechanics' liens, abstract of law of, 749. L. Lands can be transfened by deed only, 446 Law-Merchant, what is meant by it, 28. Law-Terms, some explanation of, 29. Law of Place, 189. what is meant by, 318. INDEX. 831 Law of Place, as influencing contracts, 319. general principles of, 318, 319. of a State binds all persons and things within the limits of the State, 318, 319. has no force beyond the limits of the State, 319. of foreign States, have, by comity, a quali- fied influence, 319. of contract, governs the effect of the con- tract in regard to personal property, of real property, governs the construction of the contract, 319. Law, of shipping, how considered, 324. of freight, 334. of foreign country is presumed to be the same as in the place of suit, in absence of testimony, 190. Laws, regulating pilotage, 359. regulating interest and usury, 308. Lay-Days, are what, 343. Lease, definition of contract of, 610, what passes to tenant under, 610. duties and obligations of landlord under, 610. rights and duties of tenant under, 611- 614. privilege of underletting by tenant under, 612, tenant when entitled to crops sown dur- ing the, 613. rights of tenant a^ter expiration of, 613. what fixtures may be removed at expira- tion of, 614. abstract of the laws concerning, 615. Lender may charge extra price for risk in- curred, 312. on bottomry bond has no right to freight, 339- Liability of an agent, 227. of carrier for baggage of passengers, 283. of carrier may be modified by notice, 281. of carrier, to third persons, for injury done them by carrier or servants, 285. of insurers, not affected by risk of the market, 410. none attaches to the insurers for a loss occurring by natural or other causes not insured against, before a loss insured against happens, 411. of master for discharging seamen, 359. Letter, contract by, 73. " " completed when letter of acceptance mailed, "j"^. Libel, when presented, 349. Liberty Policies, 399. 53 Lien, means the right of the seller to retain the property till some claim he has is satisfied, 132. is lost by the seller, if the goods are deliv- ered, 132. of bottomry bond, depends not on posses- sion, 333. ship has, on goods for freight, 336. of seamen, on ship and freight for wages, 357- of material men, for supplies to ships, 360. of carrier, on goods, 278. of mechanics and material men, law of, with forms and directions, 743. Life-insurance, purpose and method of, 436- how effected, 436. rules of contracts applicable to, 436. premium for, how paid, 437. Life-Policies, assignable at law, 440. Limited Partnerships, requisites of, 256. Limitations, statute of, 290. statute of, construction of, 291, statute of, new promise under, 292. statute of, part payment under, 293. statute of, when period of limitation be- gins under, 295. statute of,, statutory exceptions under, 294. statute of, does not affect collateral secu- rity, 296. of owner's liability for master's misdeeds, 356. abstract of statutes of, in all the States, 296. Loss, how divided for average and contribu- tion, 347. and abandonment, 402. no total, by abandonment, unless the in- jury exceeds fifty per cent., 403. by jettison, salvage, etc., included in esti- mate of the, 404. after abandonment, must be made up by owner, 407. insurers entitled to possession after pay- ment for total, 407. of several insured shipments, there may be total loss of one, partial of another, 408. when partial, 409. rule for averaging, by allowing one-third for new, 409. third part of, what deducted from, 410. what would be evidence of overstatement of, 429. 832 INDEX, Louisiana, law as to rights of married women in, 47. days of grace allowed, and legal holidays in, 216. statute of limitations in, 300. usury laws of, 316. number of witnesses and acknowledgment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery of debts in, 717. chattel mortgages regulated by statute in, 661. number of witnesses to wills necessary in, 768. mechanics' liens, abstract of law of, 749. M. Maker, of promissory note, 180. rights and duties of, of negotiable paper, 193- of a bill, is bound to pay the same at maturity, 193. Mail, putting a letter in, effect of as to con- tract, 73, Maine, law as to rights of married women in, 48. days of grace allowed, and legal holidays in, 216. statute of limitations in, 300, number of witnesses and acknowledgment required to deeds of land executed in, 546. usury laws of, 316. abstract of laws relating to collection and recovery of debts in, 718. chattel mortgages regulated by statute in, 661. number of witnesses to wills necessary in, 768. mechanics' liens, abstract of law of, 749- Marine Insurance. — See Insurance, 375- Maryland, law as to rights of married women in, 49. days of grace allowed, and legal holidays in, 216. statute of limitations in, 300. usury laws of, 316. number of witnesses and acknowledgment required to deeds of land in, 546. abstract of laws relating to collection and recovery of debts in, 718. chattel mortgages regulated by statute in, 661. Maryland, number of witnesses to wills necessary in, 768. mechanics' liens, abstract of law of, 749- Married Women (chap, v.), 37. rights of the husband at common law, as to, 37- all the property, real or personal, 38, 39. common law as to, not just or right, and changed by statute in nearly all our States, 39. law of, as it stands in the statutes of the several States, Abstract of, 40-59. wife may always be agent of her husband, 60. the frequent necessity of putting their property under trust, and how it can be done, 61. Massachusetts, law as to rights of married women in, 49. days of grace allowed, and legal holidays in, 217. statute of limitations in, 301. usury laws of, 316. number of witnesses and acknowledgment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery of debts in, 719. chattel mortgages regulated by statute in, 661. number of witnesses to wills necessary in, 76S. mechanics' liens, abstract of law of, 749. Master of Ship, should sign bill of lading, 335' and officers, not salvors, 350. holding goods for contribution, 350. powers and duties of, 352. power to sell the ship, 352. his liability for discharging seamen, 359. duties of repairing ship, 352. Material-Men, lien of, 360. — See Liens of Mechanics and Material-Men. Mechanics, liens of, 743. Michigan, law as to rights of married women in, 51. days of grace allowed, and legal holidays in, 217. statute of limitations in, 301. usury laws of, 316. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relating to collection and recovery of debts in, 720. INDEX. 833 Michigan, chattel mortgages regulated by statute in, 661. number of witnesses to wills necessary in, 76S. niecbanics' liens, abstract of law of, 750. Minnesota, law as to rights of married women in, 51. days of grace allowed, and legal holidays in, 217. statute of limitations in, 301. usury laws of, 3 1 6. number of witnesses and acknowledgment required to deeds of land executed in, 5-I7- abstract rf laws relating to collection and recovery of debts in, 722. chattel mortgages regulated by statute in, 661. number of witnesses to wills necessary in, 770. mechanics' liens, abstract of law of, 750. Misrepresentation and Concealment, 389- Missi>sippi, law as to rights of married women in, 52. days of grace allowed, and leg4 holidays in. 217. statute of limitations in, 301, usury laws of, 316. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relating to collection and recovery of debts in, 723. number of witnesses to wills necessary in, 770. chattel mortgages regulated by statute in, 661. mechanics' liens, abstract of law of, 750. Missouri, law as to rights of married women in, 52. days of grace allowed, and legal holidays in, 217. statute of limitations in, 302. usury laws of, 316. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relating to collection and recovery of debts in, 724. chattel mortgages regulated by statute in, 661. number of witnesses to wills necessary in, 770. mechanics' liens, abstract of law of, 750. Mistakes of fact may be corrected by the courts, but mistakes of law will not be, 70. Mortgage of Land, or real estate, 548. law of, and rules concerning, 549. of the equity of redemption, 549. of foreclosure, 550. of the mortgagor's right to possession, 55'- Mortgage, of vessel, 363. purpose of, 548. how expressed, 549. containing power of sale, 550. Mortgage op Personal Property, not so formal as for land, 652. mortgagor may retain possession if mort- gage be recorded, 652, equity of redemption shorter than in land, 652. cannot be made of property to be after- wards acquired, 653. duties and liabilities of pledgee under, 653- difference between mortgagee and pledgee in, 653. pledgee under, cannot sell the pledge be- fore the debt is due, 653. under, pledgee may sell the pledge when the debt is due, and after notice given, 654- Mortgagee of ship, in possession, liable as owner, 331. of ship, not in possession, no right to freight, 339. insurable interest in property, 420. has what title to land mortgaged, 549. Mortgagor, insurable interest of in prop- erty, 420. right of, in regard to mortgaged land, 549- duty of, in regard to redemption, 550. Mutual Insurance Companies, amount insured in, 413. Nebraska, law as to rights of married women in, 53- days of grace allowed, and legal holidays in, 218. statute of limitations in, 303. usury laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relating to collection and recovery of debts in, 725. 834 INDEX. Nebraska, chattel mortgages regulated by statute in, 662, number <^f witnesses to wills necessary in, 770. mechanics' liens, abstract of laws of, 75'- Negotiable Paper, what is meant by, '75- . , rules fif law en subject of, are technical and exact, 175. what is essential to, 1S2. difference between what is, and what is not, 182. time of payment of, must be certain, 1S2. must be payable in money, 182. may be written in pen or pencil, on paper or any proper substitute, and in any language, 183. as to form of, 183. omission of certain words may be supplied, 183. contingency apparent on the face of, pre- vents negotiability, 183. as to whether certain notes are, 183, exception to common law rule in cace of, 190, igi. of transfer after dishonor of, 194. ( rights and duties of holder of, 193. rights and duties of maker of, 193. payable at a time certain, is entitled to days of grace, 19S. in general, all parties to, entitled to notice, are discharged for want of it, 204. bill or note ceases to be, when paid, 209. Neutrality, waiTanty of, 386. Nevada, law as to rights of married women i". 53- days of grace allowed, and legal holidays in, 218. statute of limitations in, 303. usury laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relating to collection and recovery of debts in, 726. chattel mortgages regulated by statute in, 662. number of witnesses to wills necessary in, 770. mechanics' liens, abstract of law of, 751. New Hampshire, law as to rights of married women in, 5-^. days of grace allowed, and legal holidays in, 217. Newt Hampshire, statute of limitations in, 302. usury laws of, 3x7. number of witnesses and acknowledgment required to deeds of land executed in, 547. abstract of laws relating to collection and recovery of debts in, 727. chattel mortgages regulated by statute in, 662. number of witnesses to wills necessary in, 770. mechanics' liens, abstract of law of, 751. New Jersey, law as to rights of married wo- men in, 54. days of grace allowed, and legal holidays in, 217. statute of limitations in, 302. usury laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 547. abstract of laws relating to collection and recovery of debts in, 728. chattel mortgages regulated by statute in, 662. number of witnesses to wills necessary in, 770. ^ mechanics' liens, abstract of law of, 751. New Promise, by one who had made the original promise when an infant, 31. a mere acknowledgment not enough, 31. \ may be conditional, 31. if conditional, condition must be performed. New York, law as to rights of married women in, 54. days of grace allowed, and legal holidays in, 217. statute of limitations in, 302. usury laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relating to collection and recovery of debts in, 729. chattel mortgages regulated by statute in, 662. number of witnesses to wills necessary in, 770- mechanics' liens, abstract of law of, 752. North Carolina, law as to rights of married women in, 55. days of grace allowed, and legal holidays in, 21S. statute of limitations in, 303, INDEX. 835 North Carolina, iisyry laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 547. abstract of laws relating to collection and recovery of debts in, 730. chattel mortgages regulated by statute in, 662. number of witnesses to wills necessary in, 770. mechanics* liens, abstract of law of, 752. Note, promissory, differs from bill of exchange, 177. indorsed in blank always transferrable by delivery, 1S5. when incomplete and invalid, 1S5, to a fictitious payee, with same name in- dorsed by maker, will be held the mak- er's own note, 1S5. payable to diffei^ent persons, in the alterna- tive, not good, 1 86. payable at any place should be demanded there, 199. when not presented for payment, all par- ties but acceptor or maker are dis- charged, 199. saleof, when amounting to usury, 313, 314. Notice, of protest, must be given, even to one who has knowledge, 201. no particular form of necessary, 201. if letters be put in the office, any miscar- riage does not affect the party giving notice, 201. should be sent by public post, 201. should be sent to place of business or resi- dence of party notified, 202. of non-payment, should be sent in reason- able time, 202. right to, may be waived by agreement, 204. death or severe iHness is excuse for delay of, 205. want of, may be cured by express promise to pay, 205. Notice of Non-Payment, there is no pre- sumption of, 203. each party receiving, has a day before he is to send it forward, 202. should be given only by a party liable on the instrument, 203, must be given to every antecedent party who is to be held, 203. may be given to a party personally or his agent, 203. may be given to either of partners jointly liable ; if not partners, then to each one, 204. Notice of Non-Payment, one transferring, without indorsement by delivery, is not generally entitled to, 204. to agent is notice to the principal, 203. con?mon carrier has a right to modify his liability by, 281. of carrier's liability, may be indirectly brought home to a person, 282. general, will be enough to give to agents of insurer in case of loss, 431. <). Obligee, one to whom the obligor is bound in a bond, 119. Obligor, one_ bound by a bond, iig. held to pay so much only as will indemnify the obligee, 120. Officers of Ship, not salvors, 350. Ohio, law as to rights of married women in, 55' days of grace allowed, and legal holidays in, 218. statute of limitations in, 303. usury laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 547. abstract of laws relating to collection and recovery of debts in, 731. chattel mortgages regulated by statute in, 662. number of witnesses to wills necessary in, 770. mechanics' Hens, abstract of law of, 752. Oregon, law as to rights of married women in, 55- days of grace allowed, and legal holidays in, 218. statute of limitations in, 304. usury law of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 547. abstract of laws relating to collection and recovery of debts in, 732. chattel mortgages regulated by statute in, 662, number of witnesses to wills necessary in, . 770. mechanics' liens, abstract of law of, 752. Owner, may recover goods from an honest purchaser who has bought from one with defective title, 133. cannot recover from one who bought in good faith from one who bought fraud- ulently from the owner, 133. 836 INDEX, Owners, when bound by master's acts, 352, 353' when liable for injuries done by master, 35-- of sacrificed property acquire claim for con- tribution, 409. P. Partners, liability and authority begin when, 241. may share the profits or losses as they choose, 241. persons may be liable as, to third persons who are not as between themselves, 242, who is a secret, dormant, or nominal, 242. factors, brokers, etc., are not partners with those employing them, 243. may dissolve the partnership at pleasure when working no disadvantage to the others, 243. dissolution occurs by death of a general or special, 244. dissolution also when one partner's whole interest is sold on execution, 245. dormant or secret partner is not liable for debts contracted after his retirement, 245. should give notice of retirement, 245. each one is agent for all, 246. one cannot bind the firm by a guaranty, a letter of credit, or submission to arbi- tration without authority, 247, may bind the firm by instniment under seal, 247. must act as such, to bind the firm, 24S. reception of a new, makes a new finn, 249. borrowing money for partnership purposes creates a partnership debt, 249. obtaining credit for partnership purposes makes the firm liable, 249. partner in general cannot sue another for claim growing out of partnership inter- ests, 251. either may sue for balance on adjustment of accounts, 251, may sue his copartner for money advanced before partnership formed, 251. who pays more than his share of a debt must charge the firm, 252. the firm may sue for goods sold in the name of one, 252. surviving, are tenants in common only with representatives of deceased, 255. Partnership, is not credited by single joint transaction, 241. Partnership, all persons competent to do business on their own account may en- ter into, 241. when created, 240. no especial form is necessary for, 241. may be formed how, 241. usually is but one business name to a, 243. principal test of, is participation in profits, 243- may hold real as well as personal estate, 245. can have no seal at law, 248. money lent one partner for partnership purposes, makes a debt of the, 249. firm is liable only to one who deals with a partner in good faith, 250. may be liable for injury caused by criminal acts of a partner, 250. funds of, must first be applied to partner- ship debts, 253. creditors cannot attach private property till private creditors are satisfied, 253. property goes, in case of death of one part- ner, to the others, only for purpose of settlement, 255. limited, requisites of, 256. effect of dissolution of, 255. dissolution of, held to avoid policy of in- surance, 430. Part Owners of Ships, rights and obliga- tions of, 329. of ships, not necessarily partners, 329. may sell his share of ship, 329, all are liable for repairs to ship, 329. ship's husband, is commonly one of, 330. Passage-money, rules of, analogous to those of freight, 340. Passengers, may be salvor, 350. Patents, the law of, 663. what may be patented, 663. who is entitled to a patent, 663. what will prevent the granting of a patent, 664. mode of proceeding to obtain a patent, 664. applications; what, and how to be made, 664. specifications ; what, and how to be made, 665. oath, or affirmation ; what, and how to be made, 667. foreigners ; what they must do, 667. drawings ; how they must be made and sent to the patent-office, 667. model ; how it must be made and sent to the patent-office, 668. INDEX. ^17 Patents, photographs; when admitted, and how prepared, 669. examination, when, and how made in the patent-office, 66g. protests ; what they must be, and their effect, 670. appeals to the examiners-in-chief, 670. appeals to the Supreme Court of the Dis- trict of Columbia, 671. rules regulating the above appeals, 672. interferences, 672. re-issues, and surrender, 674, disclaimers, 676. extensions, 677. designs, how they may be patented, 679. foreign patents, do not prevent taking one here, 681. caveats, 681. assignments and grants of patent-rights, 683. fees payable to the patent-office ; what, and how payable, 685. testimony, how taken and transmitted, 687. papers, filing in the office, and preserva- tion there, 690. amendments in specification and claim, when and how made, 691. Patent law of the Dominion of Canada, 692. Payee, of bill of exchange, 181. of promissory note, 180. must be designated, 184. Payment, how may be made, 161. negotiable bill or note, is not an absolute, 162. appropriation of, among several debts, 163. may be appropriated at time of, by payor, 163. impossibility of presenting a bill for, excuse some delay, 197. time of, in negotiable paper, must not depend on a contingency, 182, of negotiable paper, must be in money, 182. of bills, notes, etc., is to be demanded promptly, though need not be done instantly, 198. demand of, is sufficient, if made at usual residence or place of business of payer, 197. •what constitutes demand, and refusal of, 197- , bankruptcy or insolvency no excuse tor not demanding, 197. bills on demand should be presented in a reasonable time for, 198. Payment, every demand for should be, mads at the proper place, 199. part, takes debt from under statute of limitation, 293. debtor may appropriate, to any one of several debts, 293. Penalty, of a bond, 119. for not signing shipping articles, 356. for discharging seamen v^ithout their con- sent, 359. Pennsylvania, law as to rights of married women in, 56. days of grace allowed, and legal holidays in, 218. statute of limitations in, 304. usury laws of, 317. number of witnesses and acknowledg- ment required to deeds of land exe- cuted in, 547. abstract of laws relating to collection and recovery of debts in, 733. chattel mortgages, regulated by statute in, 662. number of witnesses to wills necessary in, 771. mechanics' liens, abstract of law 0^ 752- Perils, of the sea, 394. by fire, 395. Pilots, responsibilities of, 359. Place, what is meant by law of, 318. general principles of law of, 318. law of, influencing contracts, 320, Policy, of insurance, 376. subsequent additions to, 377. of insurance, how affected by assignment^ 378- of insurance, assignment of, 378. of insurance, when altered, 377. when open or valued, 378. wager, 378. value insiured in an open, 379. memorandum in, 385. express warranty in, 385. embraces what perils, 393. providing against barratry by clause in, ^396. liberty, 399. as to total loss, in the provisions of the, 404. valuation in the, generally determines the estimate of the loss, 404. of fire insurance, what necessary to execu- tion of, 413. when delayed, and company not bound, 413- 838 INDEX. Policy, subsequent ratification by an agent, what effect, 414. of fire insurance, how constructed as to description, 414. intention must be expressed in, 414. words " stock in trade," include what in, 414. memorandum on back of, 415. mistake in, 415. when some jDarts written, some printed, 415. containing scale of premiums, 416. when void, for false statement of appli- cant, 416. how affected by greater hazard for a time, 417. when made by consignee will be construed to cover his interest only, when no interest is expressed, 421. by commission-merchant, in his own name, when it may cover goods of various consignors, 421. provisions against double insurance, 422 when separate statements are part of, 423 indorsement made upon, may take effect as part of, though made before executed 424. when statement not constraed as part of, 424. difference between marine and fire, 425 when avoided by misrepresentations or concealments, 425. always avoided by warranty broken, 425. parties may make a valued, 42S. is personal contract between the parties, 429. against fire, contains provision against assignment, 430. production of, certificate of loss, is condi- tion precedent to payment, 430. difference of adjustment between marine and fire, 431. assignment of, should be made on it, 435. assent of insurers had best be obtained to assignment of, 435. time of death in case of life insurance has important effect on payment of the, 438- restrictions on the life insured in the, 43S. when avoided by death by suicide, 439. takes effect from date, 400. never attaches in case of unreasonable delay in sailing, 400. how affected by the words " at," " to," and " at and from," 400. on goods attaches when, 400. Port, what is meant by, in policy, 400. Power, to sell, implies power to warrant, etc., 221. of ship-master, 352-356. of attorney, custom-house, 372. Premium, when due and how paid, 391. when may be returned, 391. how paid in case of life insurance, 437. in case of life insurance when paid, 4.37, extra required in what cases, 439. Presentment, for acceptance, 194. should be made during business hours> 195. should be made to drawee or his agent, 195. for demand of payment, 196. for demand of payment, same for notes and bills, 196. for demand of payment, universal rule of law merchant in regard to, 198. Presumption of Law, affecting contracts how, ']%']. Principal, is bound by acts of the agent, 219, 220. may confer authority on agent how, 221, has power of revocation in general, 225. when imdisclosed, may show that the nominal party was actually his agent, 22S. is responsible for injuries resulting from a fraudulent representation of the agent, 228. is bound by payment of money to an agent only when done in regular course of business, 22S. not responsible for criminal acts, unless he expressly commanded them, 229, who accepts the benefit of an act done by his agent discharges him from responsi- bility therefor, 229. general rule is, he may revoke his agent's authority at pleasure, 232. cannot revoke authority given to factor after advances made, 234. Profits, how valued and insured, 379. Promise, of promissory note, 182. must be supported bya consideration, iii. to pay another's debt when original, when collateral, 157, 15S. in negotiable paper, must be absolute, 1S2, barred under statute of limitations, 291. new, sufficient to take case from statute of limitations, 292. new, not implied from mere acknowledg- ment, 292. implied by part payment, 293. INDEX. 839 Promise, can never be enforced by one who knew the performance thereof impossi- ble, 115. cannot be enforced when supported only by a valueless consideration, though it was at first apparently good, 116. when severable, what may or may not be enforced, 116. for work to be done, when broken without good cause by promisor, he cannot recover, 116. Promisor, of promissory note, 180. Promissory Note, differs from bill of ex- change, 180. is what, 181. not negotiable when, 182. on demand is considered as intended as a continuing security, 194. Property, legal meaning of word, 131. of partnership is bound to pay partner- ship debts, 253, insured, description of, 392. insured must contribute to general aver- age when, 408. claim for contribution acquired by owners of sacrificed, 409. under insurance, effect of alterations on, 418. f ROPOSALS, of insurance, ^sl^. Protest, and notice, 200-205. demand and, must be made according to law of the place where the bill is pay- able, 200. loss of bill no excuse for not protesting, 200. should be made on day of demand and refusal, 200. Notice of, various incidents of, 200-204. Provision by statute in behalf of seamen, 356- of seamen provided by owner, 357. Public Property, retained for contribution, 347- Purpose and use of this book (chap, i.), 23- K. Real Property, may be held by partner- ship, 245. oral bargain for, of no effect, 456. Reasonable Time, allowed by law for an acceptance of an offer ; what this time is, 72. Receipts, definition of, 164. open to explanation or contradiction, 165. in deed, may be shown not for value, 452. Rbcording of deeds, essentials of, 450. Recovery of Debts, attachment, trustee process, garnishee process, homestead, and exemption from execution, 703. Recovery of Debts, abstract of the laws of the States respecting, 705. Registration of Ships, 324-326. Release, differs from receipt, 165. in the nature of a contract, requi/es con- sideration, 165. Repairs, of ship, 346. value of old material should be deducted in case of, 410. how affecting insurer and insured, 419, Representation, and warranty, 423. differs from a warranty, 424. how affecting the policy, 423. if in writing or in parol, 425. in case of life insurance, 440-444. Retract, when and how one may retract his offer, ']-^. Revocation is in general within the power of the principal, 225. of submission may be made by either party, 266. of submission, the other party has dam- ages for, 266. of submission, notice must be given of, 267. of submission, bankruptcy does not amount to, 267. of an offer, when, how, by whom, 73. Revocation of Wills, 759. Rhode Island, law as to rights of married women in, 56. days of grace allowed, and legal holidays in, 21S. statute of limitations in, 304. usury laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relating to collection and recovery of debts in, 734. chattel mortgages regulated by statute in, 663. number of witnesses to wills necessary in, 771. mechanics' liens, abstract of law of, 753. Rights, of action growing out of agency, 227. of the firm against third parties, 252. of creditors in respect to partnership funds, 253. of seamen in sickness, 357. of seamen to be brought home, 358. and duties, of maker of negotiable paper, 840 INDEX. Rights, and duties of holder of negotiable paper, 193. and duties of indorser, 205, 206. and duties of acceptors, 209. Risk, common sea, 346. parties may agree as to, 394. when terminated, 401, 402. ndes concerning "hazardous," 416, 417. Rules, in respect to passage-money, an?,logous to those of freight, 340. regulating salvage, 350 governing collision, 355. for steam-vessels when meeting others, 355- of pilots, 359. concerning " hazardous " risks, 416, 417. Sacrifice, in average, hovi' justified, 347. Sale, is to be immediately followed by pay- ment and delivery, unless otherwise agreed upon, 131. is made when the agreement is made, 131. what constitutes a, 130. distinction between agreement and, 130. every actual, is an executed contract, though payment may remain to be made, 130. executory contract for, is not a present, 130. of goods, is exchange thereof for money, 130. when bargain does, or does not become a, 131. is made when the agreement is made, 131- is not complete so long as something re- mains to be done to the goods by the seller, 132-134. is not necessarily complete on the comple- tion of some time agreed on, or happen- ing of some event, 135. can be done, of chattels or goods not in existence, 135. is none, but for a price that is certain or capable of being made so, 135. when once effected, the buyer has a right to possession, on payment, 135. when avoided by mistake, or defect in subject-matter, 138. when many things bought at one, right of buyer as to refusing a part without all, 139- buyer may have right of re-delivery by terms of bargain, 140. with vrarranty, 142. Sale, of one's business, when good, whea void, 147. of notes, when amounting to usury, 313, of ships, how regulated, 327. when made by master under necessity, proceeds must be accounted for by in- sured, 405. Salvage, what constitutes, 348, 349. how enforced, 349. proceedings for, 349. what proportion of value for, 350, 351, how distributed among salvors, 351. Salvors, who are, 349. passenger may be, 350. Seal, of deed, is what, 447. notarial, evidence of dishonor of foreign bill, 200. Seamen, rights of, in sickness, 357. discharge of, without consent, 358. if discharged without their consent, havea right to be brought home, 358, desertion of, how punished, 359, punishment of, 359. Seaworthiness, warranty of, i%t^ 3S8. standard for, 388. Seller, has a lien on goods for payment, 133. may resell goods on notice given the buyer, if the buyer does not pay in a reasonable time, 132, cannot sell and give good title, if he has only right of possession, 133. liability of, as to keeping goods, 136. obligations of, as to delivery, 136, 137. may annul a sale he was induced to makJ by fraud, 140. not necessarily bound by receipt in deei' 452. Sheriff, as to levy and sale by, of partnei ship interests, 244. Ships, are personal property, 324. registration of, 324, 326. transfer of, shoidd be followed by posses- sion, 32S. what is meant by, in passing property by sale of, 328. have a lien on goods for the freight, 336. when repaired, contribution for, 343. transfer of property in, 327, 328. conveyances of, recorded, 327. mortgagee of, in possession, liable as owner, 331. employment of, by o^vner, 31 1-340' Shipper, cannot abandon goods for freight so long as they are in specie, 339, Shipping, articles of, 356. INDEX. 841 Ship-Owner, may let his ship to others, 340. must pay for goods lost by his fault, or the fault of his ship, 340. Ship's-Husband, is commonly part-owner, 330- powers of, 330. SiGNATU RE, to agreement, when it may be in any part of the paper, 160. to negotiable paper, how it may be writ- ten, 183. Single Women, how their property may be put safely under trust, and secured to them, in view of their marriage, 61. South Carolina, law as to rights of mar- ried women in, 57. days of grace allowed, and legal holidays in, 218. statute of limitations in, 305. usury laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 548. abstract of laws relating to collection and recovery of debts in, 735. chattel mortgages regulated by statute in, 663. number of witnesses to wills necessary in, 771- mechanics' liens, abstract of law of, 753. Specifications, should accompany building contracts, 94. Statute of Limitations. — See Limita- tions. Statutes, as distinguished from common law, 27. provisions respecting seamen, 356. of frauds, purpose, and provisions, 156- 161. Stay Laws, abstract of in all the States, 705. Stoppage in Transitu, 148. exists only in actual insolvency, 148. must be effected by seller, 149. hindered by possession of buyer, actual or constructive, 149. barred by tona fide sale by buyer, 149. a seller exercising right of, does not re- scind the sale, but holds the goods as property of the buyer, 150. Submission, to arbitrators, may be revoked by either party before award made, 266. other party has damages for revocation of, 266. Subscription Papers, law as to them, 114. Survey of Vessels, when ordered, 357. T. Tenancy by the curtesy, a law-term, ex plained, 37. Tender, what constitutes a good, 161. lawful, and payment in court, is a good defence to action for debt, 162. Tennessee, law as to rights of married women in, 57. days of grace allowed and legal holidays in, 219. statute of limitations in, 305. usury laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 548. abstract of laws relating to collection and recovery of debts in, 736. chattel mortgages regulated by statute in, 663. number of witnesses to wills necessary in, 771- mechanics' liens, abstract of law of, 753. Termini, of voyage and risk, 400-402. must be distinctly stated, 400. Texas, law as to rights of married women in, 57. days of grace allowed, and legal holidays in, 219. statute of limitations in, 305. usury laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 548. abstract of laws relating to collection and recovery of debts in, 737. chattel mortgages regulated by statute in, 663. number of witnesses to wills necessary in, 771. mechanics' liens, abstract of law of, 753. Things in Action, a law-term, explained, 38. Things in Possession, a law-term, ex- plained, 38. Title, does not pass by sale to it fraudulent party, 141. Torts, this word in law means wrongs, and ' includes all wrong-doing, 32. are what, 308. Trade, contraband, 397. prohibited, 397. Trade-marks, protected ; and sundry provi- sions of the statute respecting them, and how they should be described and re- corded, given in full, 692. information and assistance given by the office, 694. Trial, for salvage, how had, 351. 842 INDEX. Trustee Process.— &« Recovery of Debts. Trustees, a law-term, explained, 61. cannot buy trust property, 231. may insure against fire, 421. u. Usage, when held unreasonable, 78. of fire insurance companies, when admit- ted, 413. Usury, what is meant by, 307. law in regard to, 308. Usury, what is necessary to constitute, 308, 309- contract for, wholly void, 309. when sale of notes amounts to, 313, 314. abstract of the law of in all the States, 315. V- Value Received, effect of these words in negotiable paper, 192. Value, of insured goods, how determined, 380. Valuation, how applied to insured property^ 37S, 379- how understood in fire policies, 42S. mutual companies require a valuation ex- pressed, 428. determines what the insurers must pay in case of total loss, 429. Vermont, law as to rights of married women in, 58. days of grace allowed, and legal holidays in, 219. statute of limitations in, 305. usury laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 54S. abstract of laws relating to collection and recovery of debts in, 'j-i^^. chattel mortgages regulated by statute in, 663. number of witnesses to wills necessary in, 771. mechanics' liens, abstract of law of, 753. Vessels, in danger of collision, duties of,355. Virginia, law as to rights of married women in, 58. days of grace allowed, and legal holidays in, 219. ^ statute of limitations in, 306. usury laws of, 317. number of witnesses and acknowledgment to deeds of land executed in, 548. abstract of laws relating to collection and recovery of debts in, 739. Virginia, chattel mortgages regulated by statute in, 663. number of witnesses to wills necessary in, 771. mechanics' liens, abstract of law of, 754- Voyage, in respect to charter-party, 342. what is the proper course for, 39S. unnecessary protraction of, is a deviation, 399- may be changed for purpose of saving life, 399. new voyage substituted for one agreed on is a deviation, 399. policy never attaches on an entirely new, 400. ship may visit several ports by permission, on the, 399. where and when terminated, 400. w. Wages, of seamen, how regulated, 357. who may insure, 382. of mariners, not insurable, 382. Waiver, of fraud, when action is brought to enforce the contract, 142. Warranty, general, particular, limited, ex' press, or implied, 142. mere declaration of opinion is not, 142. breach of, does not always authorize buyer to return, 144. provisions sold are always held to be sold with, 145. what is held to constitute, 142-145. seller of goods in possession is understood as selling with warranty of title, 144. thing sold for special purpose is sold with implied, 144, held not to apply where an ascertained article is bought, 144. bill of sale, describing articles sold amounts to, 145. express, in policy, 3S5. breach of, 3S6. subjects of express, 386. of sailing, 386. of neutrality, 386. implied, t^"], of seaworthiness, 387. and representation, 423. part of contract of insurance, 423. may be of the present or of the future, 424, continuing, 424. in case' of life-insurance, 441. deed, clauses in, 453. in quit-claim deed, 453. effect of, on subsequent grantees, 454. INDEX. 843 West Virginia, law as to rights of Tnarried women in, 59. days of grace allowed, and legal holidays in, 219. statute of limitations in, 306. usury laws of, 318. number of witnesses and acknowledgment required to deeds of lands executed in, 548. abstract of laws relating to collection and recovery of debts in, 740. chattel mortgages regulated by statute in, 663. number of witnesses to wills necessary in, 771. mechanics' liens, abstract of law of, 754- Wife, may always be an agent of her husband 60. is his agent, with authority to make pur- chases on his account, for proper domes- tic purposes, 60, loses this authority if she needlessly leaves his house, 60. if she leaves his house because of his cru- elty, she carries with her his authority to make purchases or contracts for her proper support, 60. Wife, if she carries on trade as a single wo- man when is the husband liable, 60. when the assent of, is necessary to pass real estate, 450. effect of, joining in deed with husband, 455. 456- Wills, the law of, with forms and directions for making and executing, 755. Wisconsin, law as to rights of married women In, 59. days of grace allowed, and legal holidays in, 219. statute of limitations in, 306. usury laws of, 318, number of witnesses and acknowledgment required to deeds of land executed in, 548. abstract of laws relating to collection and recovery of debts in, 741, chattel mortgages regulated by statute in, 663. number of witnesses to wills necessary in, 771- _ mechanics' liens, abstract of law of, 754. Witnesses, to deed, law and practice of, 448, 449. to deeds, number required by statute in all the States, 545. Farmer, legal rights and obligations of, chap- ter XLI, 795. title by possession, 795. title by inheritance, 796. title by purchase, 796. sale of land at auction, 797. when land is sold at auction in several lots, 797- . auctioneers' liabilities for sale of, 798. what one takes by the deed of a farm, 798. boundaries and descriptions, 798. contents of the farm, 799. fixtures, 800. things unremovable by outgoing tenant, 800. things removable by outgoing tenant, 801. rocks, stones, and soil, rights as to, 801. adjoining roads, rights as to, 802. trees, and neighbors' trees, rights as to, 802. trespassing on the farm, what is, 803. rights of the farmer as to the trespasser, 803. farm-ways, 804. Farmer, water, rights to, 805. fire, right to make and hability for, S05. game animals, rights to, S07. domestic animals, rights and liabilities as to, 808. animals, sale of with warranty, 809, seeds, sale of with warranty, 810. fertilizers, sale of with warranty, 811. fruit trees, sale of with warranty, 811. help, hiring of, 811. help, rights and duties of, 811. help, liabiUty of farmer for wrong-doing, 813. hiring of a farm, renewal of lease, 814. hiring of a farm, remedy for non-payment of rent, 815. hiring of a farm, tenant's right to give up the lease, 815. hiring of a farm, apportionment of rent, 810. hiring of a farm, cultivation of the farm, 819. hiring of a farm, on shares, 819. INDEX TO FORMS. Agreement and Contract. General agreement, sufficient for many purposes, 79. General agreement, as used in the Western States, 79. General contract for mechanics' work, 80. Agreement for purchase and sale of land, in use in the Middle States, Si. Agreement for sale of land, in use in the Western States, 81. Agreem^snt for warranty deed, used in the Western States, S4. Contract to convey real estate, in use in the Middle States, 84. Agreement for the purchase of an estate, in use in New England, S6. Agreement for the sale of an estate by pri- vate contract, 89. Agreement to be signed by an auctioneer, after a sale by auction, 89, Agreement to be signed by the purchaser, after a sale by auction, 90. Agreement to make an assignment of a lease, 90. Agreement for making a quantity of man- ufactured articles, 90. Agreement between a trader and a book- keeper, 91. Agreement for damages in laying out or altering road, 92. Agreement between a person who is retir- ing from the active part of a business, and another who is to conduct the same for their mutual benefit, 92. Brief building-contract, 94. Full and minute building-contract, 95. Specification to be annexed to the building- contract, 99. Apprentices. A general indenture of apprenticeship as sometimes used in New England, 35. Shorter indenture of apprenticeship, 36. Arbitration. Simple agreement to refer, 268. Arbitration bond. One or more arHtra- tors, 268. Award of arbitrators, 269. Assignments, Brief form of an assignment to be indorsed on a note, or any similar promise or agreement, 127. General assignment, with power of attor- ney, 127. Assignment of a bond, 128. Assignment of a bond, mth power of attor- ney, and a covenant, 128. Assignment of a judgment, in the form of an indenture, 129. Assignment of mortgage, short, 596. Assignment of mortgage with power of attorney, 596. Assignment of mortgage by a corporation, 597- Assignment of mortgage in use in Michi- gan, 590. Assignment of wages, with power of attor- ney, 129. Attorney, Powers of, and Agency. Power of attorney, 235. Power of substitution, 236. Power of attorney, in a shorter form, 236. Full power of attorney to demand and re- cover debts, 237. Power of attorney to sell and deliver chat- tels, 238. Power of attorney to sell lands, 508. Power of attorney given by seller to buyer, 238. Power of attorney to sell shares of stock, with appointment by attorney of substi- tute, 238. Power of attorney to subscribe for stool 239- Proxy or power of attorney to vote, 239. (844) mD^EX OP FORMS, 84s Attorney, Poweks o^, and Acency, Continued Proxy revoking all previous proxies, 239. Proxy witl^ affidavit of ownership, in use in New York, 239. Power to receive dividend, 240. 'SONDS. Simple bond, without condition, 1:^0, 5ond for payment of money, with a condi- . tion to that effect, with power of attor- ney to confess judgment annexed, 120. Bond to be secured by mortgage, 552. £ond for conveyance of a parcel of land, 121. Bond for a deed of land, with acknowledg- ment before notary public, 122, 507- Bond in another form, for conveyance of iand, with acknowledgment, 123. Bond to corporation for payment of money due for contribution to capital stock, with power of attorney to confess judgment, 124. Bond with warrant in use in Pennsylva- nia, 571. Bond (mortgage) in use in New York, 594- Carriage of Goods and Passengers. Steam packet company's receipt, 286. Express company's receipt, 286. Contract For Sale of Lands, 507. Copyright. Agreement between author and publisher ; short form, 700. Jlgreement between author and publisher; fuller form, 701. Assignment of a copyright, 702. X)££DS Conveying Land. Deed poll of warranty, in common use in New England, 458. Deed of gift by indenture, without any warranty whatever, 459. Deed of bargain and sale, without any warranty, 460. Quitclaim deed, vrithout any vrarranty, 461. Deed poll of release and conveyance; short form, 462. Deed with special warrantj against the grantor only, 463. Quitclaim deed (long form;, honj.estead waiver, 464- Deed, with covenant against grantor, without release of homestead or dower, 463. Separate relinquishment of homestead and dower in land sold under execu- tion, 467. Deeds Conveying Land. Continued ■ Full warranty deed, by indenture, without release of homestead or dower, 468. Warranty deed (short form), with release of homestead and dower, 470. Warranty deed, with covenant against nuisances, without release of homestead or dower, 471. Warranty deed, brief, in use in Arkansas, 474- Warranty deed, brief, in use in California, 493- Warranty deed, brief, in use in Florida, 474. Warranty deed, brief, made under the statute in use in Illinois, 490. Warranty deed in use in Kentucky, 473. Warranty deed in use in Louisiana, 487. Warranty deed, brief, in use in Minnesota, 486. Warranty deed, brief, in use in Mississippi, 478. Warranty deed in use in Missouri, 478. Warranty deed, brief, in use in Ohio, 484. Warranty deed in use in New Jersey, 482. Warranty deed in use in New York, 505. Warranty deed, brief, in use in North Carolina, 476. Warranty deed, brief, in use in Pennsylva- nia, 481. Warranty deed in use in South Carolina, 49I- Warranty deed, brief, in use in Wiscon- sin, 480. Deed of grant with warranty against claimants through grantor, in use in Delaware, 501. Deed of grant and quitclaim of property and mining right, in use in California and the mining States, 489. Quitclaim deed, brief, in use in Alabama, 504. Quitclaim deed, brief, in use in Delaware, 5°3- Quitclaim deed in use in Indiana, 502. Quitclaim deed in use in Nebraska, 503. Deed in use in Province of Ontario, 537. Deed with mortgage back to secure price, in use in the Province of Quebec, 538. Deed with covenants and release of dower in use in the Province of Ontario, 540. Deed of grant and quitclaim, 541. Deed of grant in use in Prince Edward Island, 543. Bond for a deed, 507. Contract for sale of land, with penal obli- gation, 507. 846 INDEX OF FORMS. Deeds Conveying Land, Continued'. Power of attorney to sell lands, 508. Trust deed for the benefit of a wife, or some other person, 510. Trust deed to secure payment of a note, without release of homestead or dower, 5"- Deed of trust to secure a debt (fuller form), and with release of dower, 513. Executors AND Administrators. Petition to be &ppointed executor, without further notice, 774. Executor's bond, 774. Bond of executor, who is also residuary legatee, 775. Administ^-ator's bond, 776. Administrator's petition for leave to sell a part of the real estate, 776. Administrator's petition for leave to sell the whole of the real estate, ']•]']. Bond of administrator licensed to sell, 778. Account of executor, 779. Guaranty. Guaranty to be indorsed on note, 154. Guaranty of a note on separate paper, 154. Guaranty in another way, 154. Letter of guaranty, 155. Guaranty with collaterals, authorizing sale, 155- Guaranty with collaterals, promising addi- tional security or authorizing sale, 155. Infants. Promise in writing, 34. Insurance, Marine. Abandonment, 405. Insurance, Fire, Immediate notice of loss, 432. Notice, with certificate of magistrate, 433- Assignment of a policy to be indorsed thereon, 434. Transfer and assignment of policy, 435. Leases of Houses and Lands. Short form of lease, 616. Fuller form, with a provision for abatement of rent, 616. Short form of lease, in use in the Western States, 618. Lease of city property, in use in Chicago, 619. Lease with provisions for taxes and assess- ments, 621. Lease, with covenants about water-rates and injury by fire, in use in New York, 623. Leases of Houses and Lands, Continued'. Lease by grant, in use in the Western States, 625. Lease by certificate, with surety, 626. Lease of city property, in use in St. Louis, 627, What is called a country lease, in use in the Western States, 62S. A ground lease, 630. Assignment of lease, and ground rent, 633- Lease containing chattel mortgage cove- nants, to secure rent, 635. A building lease, 638. A mining lease, 639, Lease of land supposed to contain oiI,sal^ or other minerals, 640. Assignment of a lease, 642. Landlord's notice to quit for non-payment of rent ; short form, 642. Landlord's notice to quit for non-payment of rent ; another form, 643. landlord's notice to pay rent due, or quit 643- Landlord's notice to leave at end of term, 643- Landlord's notice to determine a tenancy at will, 644. Receipt for rent, in use in New York, 644. Lease in use in Province of Quebec, 644. Lease in use in Province of Quebec, known as private lease, 646. • Lease, house, in use in Ontario, 649. Lease of land in general use, 650, Lease of a farm, 818. Liens of Mechanics and Material-Men. Notice under mechanic's lien law, 744. Bill of particulars of mechanic's claim, 745, Release and discharge of mechanic's lien, 745- Release and discharge of a mechanic's lien j another form, 746. Married Women. Indenture to put in trust the property of a married woman, 61. Another form of indenture in trust, for property of unmarried women, 65. Mortgages of Land. Promissory note, to be secured by mort- gage, 552. Bond to be secured bymortgage, 552. Mortgage, without power of sale and with- out warranty, but with release of home- stead and dower, 553. Mortgage, with power of sale, to secure a bond, without release of dower, 554, INDEX OF FORMS. 847 Mortgages of Land, Continued: Mortgage to secure a debt, with power of sale; short form, 556. Mortgage to secure a debt (fuller form), with power of sale, 557. Deed poll of mortgage, with power to sell, and insurance clause, and release of homestead and dower, 558. Mortgage by indenture, with power of sale, and interest and insurance clause, to se- cure a bond, 560. Mortgage to executors, with power of sale, 563- Mortgage of a lease, 565. Mortgagee's deed, under a power of sale, 567- Mortgage deed without release of dower, etc., in use in Wisconsin, 580. Mortgage deed to secure a bond, in use in South Carolina, 575. Mortgage to secure a bond with warrant, in use in Pennsylvania, 568. Mortgage deed in use in New York, 591. Mortgage, with power of sale, in use in Missouri, 579. Mortgage deed in use in Maryland, 573. Mortgage deed in use in Louisiana, 583. Mortgage deed to secure a promissory note, in uSe in Kansas, 578. Mortgage deed, with release of dower, etc., to secure payment of premises sold, in use in Iowa, 5S2. Mortgage deed (short) in use in Indiana, 5S0. Mortgage deed with power of sale, in use in Georgia, 577. Mortgage deed in use in Province" of Quebec, 603. Mortgage deed for general use in the Dominion of Canada, 606. Trust deed to secure a debt, payable in gold coin, in use in California, 495. Trust deed to secure payment of a prom- issory note, in use in Colorado, 498. Trust deed by way of mortgage, in use in Virginia and West Virginia, 494. Mortgage, satisfaction of, in use in New York, 595. Mortgage, satisfaction of, in use in New Jersey, 5S7. Mortgage, satisfaction of, in use in Minne- sota, 589. Mortgage, assignment of, in use in Michi- gan, 590. Mortgage, release of, in use in Kansas, 588. 54 Mortgages of Land, Continued: Deed of trust, release of, in use in Col- orado, 587. Deed of tnist, release of, in use in Vir- ginia and West Virginia, 589. Assignment of mortgage, short form, 596. Assignment of mortgage with power ot attorney, 596. Assignment of mortgage by a corporation, 597- Discharge of mortgage, short form, 598. Release and quitclaim of mortgage, as used in the Western States, 599. Discharge of mortgage, as used in the Middle States, 599. Discharge and satisfaction of mortgage by a corporation, 600. Release of a part of the mortgaged prem- ise, 600. Deed extending a mortgage, 602. Mortgages of Goods and Chattels. Mortgage of personal property, 655. Mortgage of personal property, with war- ranty, 655. Mortgage of personal property, with powCT of sale, 657. Mortgage of personal propert}', with power of sale; another form, 65S, Notes of Hand and Bills of Exchange. Common form of a bill of exchange, 176. Common forms of a promissory note, 177. Form of a note secured by mortgage, as used in Illinois, 178, Promissory note to be secured by mort- gage, 552- Form of a note given for a chattel sold, with a condition preserving the owner- ship of the seller, 184. Judgment note, with waiver, 212. Judgment note, with waiver and power of attorney, 212. Judgment note, with fuller waiver and power of attorney, 213. Partnership. Articles of copartnership between two tradesmen, 257. Short form of articles of copartnership, 259. Certificate of a limited partnership, with acknowledgment and oath, 261. Patents. Form of petition, 665. Specification to accompany a petition, 665, Form of oath, 667. Appeal to the examiner-in-chief, 670. Surrender of a patent for re-issue, 675, 848 INDEX OF FORMS. Patents, Continued: Oath to be appended to application for re- issue, 676. Disclaimer by an assignee, 676. Application for patents of designs, 680. Specifications for designs, 6S0. Form of oath, 681. Form of caveat, 683. Assignment of the entire interest in let- ters-patent before obtaining the same, and to be recorded preparatory thereto, 684. Grant of a partial right in a patent, 685. Magistrate's certificate, 688. Form in taking of depositions, 689. Amendment of specification, 6gi. Receipts and Releases. Receipt for money, 164. Another form of receipt for money, 164. Receipt for papers or other articles, 164. General release, 165. Mutual general release by indenture, 166. Release from creditors to a debtor, under a composition, 166. Release of all legacies, 166. Release of a bond, it being lost, 167. Release of a judgment, 16S. Release of a condition, 169, Release of a covenant contained in an in- denture of lease, 169. Release in extinguishment of -^ power, 170, Release from a lessor to a lessee (upon his surrendering his lease) from the cove- nants therein, 170. General release of dower, 171, Receipts and Releases, Continued: Release of dower to the heir, 171. Release of dower in consideration of an annuity given by will, 172. Release of dower when the husband of the widow joins in the deed, 172. Release of a trust, 173. Release of right to lands, 174. Release between two traders in settling accounts, 174. Release of deeds of trust in Colorado, 5S7. Release of mortgage in Kansas, 588. Release of trust deed in Virginia, 589. Sales. Bill of sale of personal property, 146. Bill of sale of personal property, with a condition to make it a mortgage with power of sale, 146. Shipping. Bill of sale of vessel, 361. Mortgage of a vessel, 2i^-r^- Charter party, 365. Bill of lading, 366. Shipping articles in common use, 367. Bottomry bond, 370. Oath or affirmation of consignee or agent, 371. Custom-house power of attorney, No. 201, 372- Maritime protest, 373. Steamboat warrant, as used in the West- ern States, 375. Wills. A will, 760. Copy of a fuller form of, 761, Another form, 763. TABLES OP INTEREST AT SIX PER CENT. $1 $2 $3 $4 $S Days. $6 $7 $8 $9 $10 1 2 3 4 ■ ■ I 5 , J_ 6 7 8 9 1 . 2 10 '. 2 . 2 11 . 2 . 2 12 '. 2 . 2 . 2 13 '. 2 2 . 2 . 2 14 . 2 . 2 . 2 . 3 15 . 2 . 2 . 2 . 3 16 . 2 . 2 . 2 . 2 . 3 17 . 2 . 2 . 2 . 3 . 3 '. 2 18 . 2 . 2 . 2 . 3 . 3 . 2 19 . 2 . 2 . 3 . 3 . 3 . 2 20 . 2 . 2 . 3 . 3 . 3 . 2 21 • ^ . 2 . 3 . 3 . 4 . 2 22 . 2 . 3 . 3 . 3 . 4 . 2 . 2 23 . 2 . 3 . 3 . 3 . 4 . 2 . 2 24 . 2 . 3 . 3 . 4 . 4 . 2 . 2 25 . 3 . 3 . 3 . 4 4 . 2 . 2 26 . 3 . 3 . 3 . 4 . 4 . 2 . 2 27 . 3 . 3 . 4 . 4 . 5 . 2 . 2 28 . 3 . 3 . 4 . 4 . 5 . 2 . 2 29 . 3 ■ 3 . 4 . 4 . 5 . 2 . 2 . 3 30 . 3 . 4 . 4 . 5 . 5 . 2 . 2 . 3 33 . 3 . 4 . 4 . 5 . 6 . 2 . 2 . 3 34 . 3 . 4 . 5 . 5 . 6 . 2 . 3 . 4 . 5 60 . 6 . 7 . 8 . 9 . 10 . 2 . 3 . 4 . 5 63 . 6 . 7 . -8 . 9 '. 11 . 2 . 3 . 4 . 5 64 . 6 . 7 . 9 . 10 . 11 2 . 3 . 5 . 6 . 8 90 . 9 . 11 . 12 . 14 . 15 2 . 3 . 5 . 6 . 8 93 . 9 • 11 . 12 . 14 . 16 2 . 3 . 5 . 6 . 8 94 Months. . 9 . 11 . 13 . 14 . 16 2 . 4 . 6 . 8 . 10 4 . 12 . 14 . 16 . 18 . 20 3 . 5 . 8 . 10 . 13 5 . 15 . 18 . 20 . 23 . 25 3 . 6 . 9 . 12 . 15 6 . 18 . 21 . 24 . 27 . 30 4 ■. 7 . 11 . 14 . 18 7 . 21 . 25 . 28 . 32 . 35 4 . 8 . 12 . 16 . 20 8 . 24 . 28 . 32 . 36 . 40 5 . 9 . 14 . 18 . 23 9 . 27 . 32 . 36 . 41 . 45 5 . 10 . 15 . 20 . 25 10 . 30 . 35 . 40 . 45 . 50 6 . 11 . 17 . 22 . 28 11 . 33 . 39 . 44 . 50 . 55 6 . 12 . 18 . 24 . 30 12 . 36 . 42 . 48 . 54 . 60 12 . 24 . 36 . 48 . 60 24 . 72 . 84 . 96 1.08 1.20 18 . 36 . 54 . 72 . 90 36 1.08 1.26 1,44 1.62 1.80 24 . 48 . 72 . 96 1.20 48 1.44 1.68 1.92 2.16 2.40 TABLB OF INTEREST AT SIX PER CENT. 1 $20 $30 1 $40 $so $00 Days. $70 $80 • 1 $90 $100 $200 • 1 . 1 . 1 1 1 . 2 . 2 . 3 1 • 1 • 1 . 2 . 2 2 • 2 ' 3 . 3 . 3 . 7 1 • 2 • 2 . 3 . 3 3 4 • 4 . 5 . 5 . 10 1 • 2 ■ 3 . 3 . 4 4 5 • 5 . 6 . 7 . 13 2 • 3 • 3 . 4 . 5 5 6 ■ 7 . 8 . 8 . 17 2 ■ 3 • 4 . 5 . 6 6 7 • 8 . 9 . 10 .20 2 • 4 • 5 . 6 . 7 7 8 • 9 . 11 . 12 . 23 3 • 4 • 5 . 7 . 8 8 9 • 11 . 12 . 13 . 27 3 • 5 • 6 . 8 . 9 9 11 • 12 . 14 . 15 . 30 3 • 5 • 7 . 8 . 10 10 12 • 13 . 15 . 17 . 33 4 • 6 ■ 7 . 9 . 11 11 13 ■ 15 . 17 . 18 . 37 4 • 6 . 8 . 10 . 12 12 14 • 16 . 18 . 20 . 40 4 • 1 • 9 . 11 . 13 13 15 • 17 . 20 . 22 . 43 5 ■ 1 • 9 . 12 . 14 14 16 • 19 . 21 . 23 .47 5 • 8 • 10 . 13 . 15 15 18 • 20 . 23 . 25 .50 5 • 8 • 11 . 13 . 16 16 19 • 21 . 24 . 27 . 53 6 • 9 • 11 . 14 . 17 17 20 • 23 . 26 . 28 . 57 6 ■ 9 • 12 . 15 . 18 18 21 • 24 . 27 . 30 . 60 6 • 10 • 13 . 16 . 19 19 22 • 25 . 29 . 32 . 63 V ■ 10 • 13 . 17 . 20 20 23 • 27 . 30 . 33 . 67 1 • 11 • 14 . 18 . 21 21 25 • 28 . 32 . 35 70 1 • 11 • 15 . 18 . 22 22 26 • 29 . 33 . 37 . 73 8 • 12 • 15 . 19 . 23 23 27 • 31 . 35 . 38 . 77 8 • 12 • 16 . 20 . 24 24 28 • 32 . 36 . 40 . 80 8 ■ 13 • 17 . 21 . 25 25 29 • 33 . 38 . 42 . 83 9 • 13 • 17 22 . 26 26 30 • 35 .39 . 43 . 87 9 • 14 • 18 . 23 . 27 27 32 ■ 36 . 41 . 45 . 90 9 • 14 • 19 . 23 . 28 28 33 • 37 . 42 . 47 . 93 10 • 15 • 19 . 24 . 29 29 34 • 39 . 44 . 48 . 97 10 • 15 . 20 . 25 . 30 30 35 . 40 . 45 . 50 1.00 11 • 17 . 22 . 28 . 33 33 39 . 44 . 50 . 55 1.10 11 • 17 . 23 . 28 . 34 34 40 . 4.3 . 51 . 57 1.13 20 ■ 30 . 40 . 50 . 60 60 70 . 80 . 90 1.00 2.00 21 32 . 42 . 53 . 63 63 74 . 84 . 95 1.05 2.10 21 . 32 . 43 . 53 . 64 64 75 . 85 . 96 1.07 2,13 30 . 45 . 60 . 75 . 90 90 1-05 1.20 1.35 1.50 3.00 31 . 47 . 62 . 78 . 93 93 1-09 1.24 1.40 1.55 3.10 31 . 47 . 63 . 78 . 94 94 Months. MO 1.25 1.41 1.57 3.13 40 . 60 . 80 1.00 1.20 4 1.40 1.60 1.80 2.00 4.00 50 . 75 1.00 1.25 1.50 5 1.75 2.00 2.25 2.50 5.00 60 . 90 1.20 1.50 1.80 6 2.10 2.40 2.70 3.00 6.00 70 1.05 1.40 1.75 2.10 7 2.45 2.80 3.15 3,50 7.00 80 1.20 1.60 2.00 2.40 8 2.80 3.20 3.60 4.00 8.00 90 1.35 1.80 2.25 2.70 9 3.15 3.60 4,05 4.50 9.00 1.00 1.50 2.00 2.50 3.00 10 3.50 4.00 4.50 5.00 10.00 1.10 1.65 2.20 2.75 3.30 11 3.85 4.40 4.95 5.50 11.00 1.20 1.80 2.40 3.00 3.60 12 4,20 4.80 5.40 6.00 12.00 2.40 3.60 4.80 6.00 7.20 24 8.40 9.60 10.80 12.00 24.00 3.60 5.40 7.20 9.00 10.80 36 12.60 14.40 16.20 18.00 36.00 4.80 7.20 9.60 12.00 14.40 48 16.80 19.20 21.60 24,00 48.00 TABLES OF INTEEEST AT SIX PER CENT. $300 $400 $500 $600 Days $700 $800 $900 $1000 5 .07 .08 .10 I .12 .13 .15 .17 10 .13 .17 .20 2 .23 .27 .30 .33 15 .20 .25 .30 3 .35 .40 .45 .50 20 .27 .33 .40 4 .47 .53 .60 .67 25 .33 .42 .50 5 .58 .67 .75 .83 30 .40 .50 .60 6 .70 .80 .90 1.00 35 .47 .58 .70 7 .82 .93 1.05 1.17 40 .53 .67 .80 8 .92 1.07 1.20 1.33 45 .60 .75 .90 9 1.05 1.20 1.35 1.50 50 .67 .83 1.00 10 1.17 1.33 1.50 1.67 55 .73 .92 1.10 11 1.28 1.47 1.65 1.83 60 .80 1.00 1.20 12 1.40 1.60 1.80 2.00 65 .87 1.08 1.30 13 1.52 1.73 1.95 2.17 70 .92 1.17 1.40 14 1.63 1.87 2.10 2.33 75 1.00 1.25 1.50 15 1.75 2.00 2.25 2.50 80 1.07 1.33 1.60 16 1.87 2.13 2.40 2.67 85 1.13 1.42 1.70 17 1.98 2.27 2.55 2.83 90 1.20 1.50 1.80 18 2.10 2.40 2.70 3.00 95 1.27 1.58 1.90 19 2.22 2.53 2.85 3.17 1.00 1.33 1.67 2.00 20 2.33 2.67 3.00 3.33 1.05 1.40 1.75 2.10 21 2.45 2.80 3.15 3.50 1.10 1.47 1.83 2.20 22 2.57 2.92 3.30 3.67 1.15 1.53 1.92 2.30 23 2.68 3.07 3.45 3.83 1.20 1.60 2.00 2.40 24 2.80 3.20 3.60 4.00 1.25 1.67 2.08 2.50 25 2.92 3.33 3.75 4.17 1.30 1.73 2.17 2.60 26 3.03 3.47 3.90 4.33 1.35 1.80 2.25 2.70 27 3.15 3.60 4.05 4.50 1.40 1.83 2.33 2.80 28 3.27 3.73 4.20 4.67 1.45 1.92 2.42 2.90 29 3.38 3.87 4.35 4.83 1.50 2.00 2.50 3.00 30 3.50 4.00 4.50 5.00 1.65 2.20 2.75 3.30 33 3.85 4.40 4.95 5.50 1.70 2.27 2.83 3.40 34 3.97 4.53 5.10 5.07 3.00 4.00 5.00 6.00 60 7.00 8.00 9.00 10.00 3.15 4.20 5.25 6.30 63 7.35 8.40 9.45 10.50 3.20 4.27 5.33 6.40 64 7.47 8.53 9.60 10.67 4.50 6.00 7.50 9.00 90 10.50 12.00 13.50 15.00 4.65 6.20 7.75 9.30 93 10.85 12.40 13.95 15.50 4.70 6.72 7.83 9.40 94 Months. 10.97 12.53 14.10 15.67 6.00 8.00 10.00 12.00 4 14.00 16.00 18.00 20.00 7.50 10.00 12.50 15.00 5 17.50 20.00 22.50 25.00 9.00 12.00 15.00 18.00 6 21.00 24.00 27.00 30.00 10.50 14.00 17.50 21.00 7 24.50 28.00 31.50 35.00 12.00 16.00 20.00 24.00 8 28.00 32.00 36.00 40.00 13.50 18.00 22.50 27.00 9 31.50 36.00 40.50 45.00 15.00 20.00 25.00 30.00 10 35.00 40.00 45.00 50.00 16.50 22.00 27.50 33.00 11 38.50 44.00 49.50 55.00 18.00 24.00 30.00 36.00 12 42.00 48.00 54.00 60.00 36.00 48.00 60.00 72.00 24 84.00 96.00 108.00 120.00 54.00 72.00 90.00 108.00 36 126.00 144.00 162.00 180.00 72.00 96.00 120.00 144.00 48 168.00 192.00 216.00 240.00 *rABLE OF INTEREST AT SEVEN PER CENT.' . DATS. , 1 DOLL'S. 1 2 J 4 6 6 7 3 9 10 11 12 13 14 1 5 16 D 17 18 19 20 21 22 23 24 25 26 1 27 1 26 1 29 1 1. 2.... 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 3.... 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 2 2 2 2 4 1 1 1 1 1 1 1 1 2 2 2 2 2 2 2 2 2 2 6.... 1 1 1 1 2 2 2 2 2 2 2 2 2 2 3 3 3 3 6.... 1 2 2 2 2 2 2 2 2 2 3 3 3 3 3 3 3 3 7.... 1 1 2 2 2 2 2 2 2 3 3 3 3 3 3 3 4 4 4 4 8,... 1 2 2 2 2 2 2 2 3 3 3 3 8 3 4 4 4 4 4 4 6 9.... 1 2 2 2 2 2 2 3 3 3 3 3 4 4 4 4 4 4 5 5 6 6 10.... 2 2 2 2 2 3 3 3 3 3 4 4 4 4 4 4 6 5 5 5 6 6 11.... 2 2 2 2 3 3 8 3 3 4 4 4 4 4 6 5 6 5 6 6 6 6 12.... 2 2 2 2 3 3 3 8 4 4 4 4 4 6 6 6 6 6 6 6 6 7 7 13.... 2 2 2 2 3 3 3 3 4 4 4 4 6 5 6 6 6 6 6 6 7 7 7 7 14.... 2 2 2 2 3 3 3 4 4 4 4 6 6 6 6 6 6 6 7 7 7 7 8 8 15,... 2 2 2 3 3 3 4 4 4 4 5 6 5 6 6 6 6 7 7 7 8 8 8 8 16.... 2 2 2 2 3 3 3 4 4 4 6 6 5 6 6 6 7 / 7 7 8 8 8 ( S 17.... 2 2 2 3 3 3 4 4 4 6 6 6 6 6 6 7 7 6 8 8 9 9 ! 10 18.... 2 2 2 3 3 4 4 4 5 6 6 6 6 6 7 7 8 8 8 9 9 9 10 II 19.... 2 2 3 3 3 4 4 4 5 6 6 6 6 7 7 6 8 8 9 9 10 10 10 11 20.... 1 2 2 2 8 3 4 4 4 6 5 6 6 6 7 7 7 8 8 9 9 9 10 10 11 11 11 21.... 1 2 2 2 3 3 4 4 4 D 6 6 6 7 7 7 8 8 9 9 9 10 10 11 11 11 12 22.... 1 2 2 3 3 3 4 4 6 6 6 6 6 7 7 8 6 9 9 9 10 10 11 11 12 12 11 25.... 1 2 2 3 3 4 4 6 6 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 30.... 2 2 3 4 4 6 6 6 6 7 8 6 9 9 10 11 11 12 12 1313 14 15 16 16 16 17 40.... 2 2 3 4 5 5 6 7 8 9 9 10 11 1 2 12 13 14 16 16 16 17'l8 19 19 20 21 22 23 60.... 2 3 4 5 6 7 8 9 10 11 12 13 14 1 6 16 17 16 18 19 20 21 22 23 24 25 26 27 28 60 ... 2 4 6 6 7 8 9 11 12 13 14 16 16 1 8 19 20 21 22 23 26 26 27 28 29 30 32 33 34 70.... 3 4 6 7 8 10 1 1 12 14 15 16 18 19 2 22 23 26 26'27 29I3O 31 33 34 36 86 38 89 80. . . . 2 3 6 6 8 9 11 1 2 14 16 17 19 20 22 2 3 56 26 26 30 31 33 34 36 37 39 46 42 44 45 eo.... 2 4 6 7 9 11 12 1 4 16 18 19 21 23 25 2 6 28 30 32 33 35 37 3f 40 42 44 40 47 49 61 100.... 2 4 6 8 10 12 14 1 6 18 19 21 23 26 27 2 9 31 33 35.37 39 41 43 45 47 49 51 63 64 56 . MOaTHS. , 1 doll's. : i , . 1 2 3 4 5 6 7 8 9 10 11 1.... 1 1 2 2 3 4 4 5 6 6 6 2 1 2 4 5 6 7 8 9 11 12 13 S 2 4 6 7 9 11 12 14 15 18 19 4 2 5 7 9 12 14 16 19 21 23 26 6 3 6 9 12 15 18 20 23 26 29 £2 6 4 7 11 14 18 21 25 28 32 35 39 7 4 8 12 16 20 25 29 33 36 41 44 8 6 9 14 19 23 28 83 37 42 47 51 9 6 11 16 21 26 32 37 42 47 53 67 10 6 12 18 23 29 36 41 47 63 68 64 11 6 13 19 26 32 39 46 61 67 64 70 12 7 14 21 28 35 42 49 66 63 70 77 13 8 15 23 30 33 46 53 61 68 76 63 14 8 16 25 33 41 49 57 65 74 62 90 16 9 18 26 35 44 63 61 70 78 68 96 16 9 19 28 37 47 66 65 76 84 93 103 17 10 20 30 40 50 60 69 79 89 99 109 18 11 21 32 42 63 63 74 84 95 105 116 19 11 22 33 44 65 67 78 89 99 111 121 20 12 23 85 47 58 70 82 93 106 117 128 21 12 25 37 49 61 74 86 98 110 123 134 22 13 26 39 61 64 77 90 103 116 128 141 26 ... 16 29 44 58 73 88 102 117 131 146 160 30.... 18 35 53 70 88 105 123 140 158 175 193 40 ... 23 47 70 93 117 140 163 187 210 233 2n7 60 ... 29 68 88 117 146 175 204 253 262 292 321 60 ... 36 70 105 140 175 210 246 280 315 350 386 70.... 41 82 123 163 204 245 286 327 363 408 44D 80 ... 47 93 140 187 233 280 327 373 420 407 613 90.... 63 105 158 210 263 315 368 420 472 525 677 100.... 68 117 175 1 233 292 3.50 408 467 626 683 642