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 3 1924 018 799 449 
 
 A niGKST 
 
 OF 
 
 Elementary Law 
 
 AND THAT OF 
 
 PERSONAL PROPERTY. 
 
 Following the Topics Suggested by the Regents of the Uni- 
 versity of the State of New York in their Syllabus for 
 the use of Law Students, and containing in 
 Condensed Form many of the Modern , 
 
 Statutory Rules of Law as well as 
 its Important Historical 
 Principles. 
 
 BY^' 
 
 EDWARD P. BUFFET, LL.B. 
 
 NEW YORK: 
 
 PIERSON L. WELLS and EDWAKD P. BUFFET, 
 
 150 Nassau Street. 
 
Cornell University 
 Library 
 
 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/cu31924018799449 
 
OF 
 
 Elementary Law 
 
 AND THAT OF 
 
 PERSONAL PROPERTY. 
 
 Following the Topics Suggested by the Regents of the Uni- 
 versity of the State of New York in their Syllabus for 
 the use of Law Students, and containing in 
 Condensed Form many of the Modern 
 Statutory Rules of Law as well as 
 its Important Historical 
 Principles. 
 
 BY 
 
 EDWARD P. BUFFET, LL.B. 
 
 NEW YORK: 
 
 PIERSON L. WELLS and EDWARD P. BUFFET, 
 150 Nassau Street. 
 
Copyright, 1897, by 
 EDWARD P. BUFFKT. 
 
 
 PRESS OF 
 
 GEO. GOTTSBERGER PECK, 
 117 Chambers St., N. Y. 
 
ELEMENTARY LAW. 
 
 NATURE OF LAWS IN GENERAL. 
 
 Definition of " law," in its general sensci— Law, in its 
 
 most general and comprehensive sense, signifies a rule of ac- 
 tion ; and is applied indiscriminately to all kinds of action, 
 whether animate or inanimate, rational or irrational. It is 
 prescribed by a superior and the inferior is bound to obey it. 
 Two ideas closely associated with it are order and force. To 
 the former notion preference was at one time given, but now 
 to the latter. Chase's Blackstone's Commentaries, i. 
 
 Application of word " law " to the operation of 
 natnral forceSi — Examples : the laws of gravitation and of 
 optics, inflexible in their nature, i Blackstone's Commen- 
 taries, 38 (original paging). 
 
 To vegetable and animal life< — For instance, the laws 
 
 governing growth and nutrition, as unerringly enacted by 
 Providence, i Bl. Com., 38. 
 
 To hnman action^ — The precepts laid down for man, a 
 creature endowed with reason and freedom of action, i Bl. 
 Com., 39. 
 
 Law of Nature definedt — The will of the Deity in regard 
 to man, so far as discoverable by conscience and reason. To 
 live honorably, to hurt nobody and to render to every man his 
 due. To follow it, is to seek our own highest welfare, i 
 Bl. Com., 39. 
 
 Divine Law. — This is the Law of Nature and the Re- 
 vealed Law. 
 
 Relation of hnman laws to Divine. — The former should 
 
 conform to the latter, so far as they cover the same ground, 
 and if they conflict the latter are morally paramount. Chase's 
 Blackstone, 5. 
 
 How laws of nature ascertainedt— Beyond what our 
 reason and conscience teach us, by the Holy Scriptures, which 
 contain the Divine Law as revealed. 
 
 Law of Nations, defined.— The rules controlling the 
 mutual intercourse of nations. No human superior to pre- 
 scribe the law being acknowledged, it consists of principles of 
 naturaljustice, of usage, and oipositive /azy derived from treaties, 
 etc. I Kent's Commertaries, i. 
 
 Municipal law, defined.— A rule of civil conduct pre- 
 scribed by the supreme power in a State, commanding what is, 
 right and prohibiting what is wrong, i Bl. Com., 44. 
 
Elements of definition, explained.— As a rule, it is per- 
 manent, uniform, and, within its scope, universal; is obligatory, 
 as distinguished from mere advice ; and lacks the element of 
 mutual agreement found in a compact. As a rule of civil 
 conduct, it pertains to man as a citizen and to some of his 
 moral obligations, but notalso to his faith as does the Divine 
 Law. It \s> prescribed in the sense of being published. Ex 
 post facto laws are therefore unreasonable. But where a law is 
 duly promulgated the plea of ignorance is not to be received. 
 It is prescribed by the supreme power in a state, in that sover- 
 eignty is essential to legislature. The methods of ascertaining 
 right and wrong will be considered under " different parts of 
 a law." 
 
 Retrospective and "Ex Post Facto" laws, defined.— 
 
 A retrospective law is one which affects past transactions. 
 An ex post facto law is a penal retrospective one which may 
 put to disadvantage a person accused. 
 
 Validity of sucli laws. Constitutional provisions con- 
 cerning such laws. — The U. S. Constitution prohibits the 
 passage of ex post facto laws either by the Federal or State 
 governments (Art. i, §§ g, lo.) ; and by the latter, laws im- 
 pairing the obligation of contracts or vested rights (Art. i, 
 ■§ 10 ; Amendments, Art. 14, §1). Retrospective laws which 
 merely confirm existing rights or add to the means of enforc- 
 ing them are valid unless forbidden by State constitutions, (i 
 Kent's Commentaries, 455.) In New York they are per- 
 mitted. 
 
 What is presumed as to iaws being retrospective. — 
 
 They are deemed such only when the legislative intent to 
 that effect is clearly declared or unavoidably implied. 
 
 "Ex Post Facto" laws, classified.— They comprise 
 chiefly laws which, as to past offences (i) render that criminal 
 which was not so; (2) aggravate the degree of guilt; (3) in- 
 crease or change the kind of punishment, though a mitigation 
 IS permissible ; (4) alter the rules of evidence so as to render 
 possible an easier conviction. Bouvier's Lav/ Dictionary. 
 
 When statutory laws take effect.— Formerly, in Eng- 
 land, from the first day of the session of Parliament when 
 passed, this, by a legal fiction, being supposed to continue 
 only one day ; but later, by statute, from the time of receiving 
 the royal assent. Laws of Congress, normally, on the day 
 of the President's approval and those of the New York legis- 
 lature on the 20th day after passage, unless specified to take 
 effect at some other time ; e. g., "immediately," in which case 
 they do so upon the day when signed by the Governor. A 
 two-thirds' vote of each legislative house will enact a bill over 
 ;the President or Governor's signature, and a bill remaining in 
 
his hands for ten days unacted upon becomes a law ipso 
 facto unless its return be prevented by adjournment of the leg- 
 islative body. Ch. Bl., 12; N. Y. Const., art. IV, § 9 ; R. S., 
 9th ed., p. 350; no N. Y., 224; i8 N. Y. Supp. 767; U.S. 
 Const., Art. i, § 7. 
 
 Supreme power in a State, where lodged.— Ancient 
 
 writers acknowledge three regular forms of government: 
 Monarchy, vested in a single person ; Aristocracy, in a se- 
 lect class ; Democracy, in all the free people. In England, 
 a limited monarchy, supremacy is supposed to be lodged 
 jointly in the commons, characterized by integrity of purpose; 
 the lords spiritual and temporal, by wisdom; and the king, 
 by power, i Bl. Com., 49. 
 
 Difference between the English Constitution and the 
 American Constitutions. — The English Constitution consists 
 •of accumulated charters, customs and laws of the kingdom; 
 which have come to be recognized as part of the organic 
 law of the nation, but like all other English political institu- 
 tions is subordinate to Parliament. The single document 
 which forms the United States Constitution, however, is sub- 
 ject only to the sovereign people, as lawfully amending it. 
 Congress and the State legislatures are bound by it, and the 
 latter by the State constitutions also. 
 
 Authority of the American courts to determine the 
 
 constitutionality of laws. — When, and only when, an actual 
 case involving the question is brought before them, they de- 
 cide it and, in-so-far as the law conflicts with the Federal 
 Constitution, or with that of the State in which the law was 
 passed, it is declared void, (i Kent Com., 448; Ch. Bl.; 15.) 
 The English courts cannot thus declare acts of Parliament 
 void. 
 
 Different parts of a law explained. The Declaratory 
 part lays down the rights to be observed and the wrongs to 
 be eschewed. 
 
 The Directory part enjoins the observance of those 
 rights and the abstinence from those wrongs. 
 
 The Remedial part points out a method of recovering 
 frivate rights or redressing//x»a/<? wrongs. 
 
 The Vindicatory part, or sanction of a law, states the 
 penalty for committing /«Mf wrongs, or neglecting duties to 
 the public, i Bl. Com., 53. 
 
 Difference between acts "mala in se" and those 
 
 which are "mala prohibita." — The former are acts for- 
 bidden by Divine law. The latter are those, naturally indif- 
 ferent, whose guilt is declared only by the law of the land, 
 although for that very reason it may be morally wrong to do 
 them. (Ch. Bl. 23, 24.) Fixing a penalty for an act implies 
 
its prohibition, although it be not forbidden by law in express 
 words. 
 
 THE UNWRITTEN OR COMMON LAW. 
 
 Difference between the unwritten law, or " lex non 
 scripta," and the written law, or "lex scripta."— The 
 
 latter are laws authoritatively set forth in writing, viz., 
 statutes. The former were promulgated by popular usage, or 
 perhaps forgotten legislators, and handed down from antiquity 
 as recognized principles. They do not derive their present 
 ultimate force from the ipse dixit of any particular writing. 
 
 Of what the unwritten law is composed and how it 
 
 is to be ascertainedi — 1\. covci^T\s,t.% (i) general customs, in 
 use throughout most of England, the Common Law proper; 
 (2) particular customs, or local usages ; (3) particular laws, 
 observed in certain courts, e. g., the Roman and Canon laws. 
 It is to be ascertained by court records, reports, treatises, etc., 
 which are the evidence of the law, not the law itself. A rule 
 laid down by the courts is supposed to have been deduced 
 from principles already established. 
 
 Common Law of England, its origin and the mode of 
 
 its growth and derelopmentt — The basis of the Common Law 
 is supposed to have been laidby the Britons and subsequent races 
 occupying England. In the time of Alfred the Great the cus- 
 toms of the Kingdom, then largely local, were compiled and 
 rendered more uniform in the " Dome-Book" which is not now 
 extant. The laws, with a Danish element added, were after- 
 wards known under three heads : the Mercian, the West 
 Saxon and the Danish. These were unified and digested by 
 Edward the Confessor, since whose time the Common Law has 
 come down to us with constant additions and modifications. 
 Adjudications upon statutes have contributed much to it and 
 many old English statutes themselves have become part of the 
 Common Law of our States. 
 
 To what extent it is adopted in this country, and 
 as of what timoi — In some form it is adopted in all the 
 States except Louisiana, where the Civil Law system prevails. 
 New York accepts it, so far as in force in the Colony April 19th, 
 1776. (N. Y. Const., Art. i, § 16). The Federal courts have 
 no Common Law of their own but administer that of the 
 States in whose territory they are located. 
 
 The Common Law contrasted with the Roman, or 
 
 Civil law. — In all which concerns civil and political liberty, 
 and in parental and conjugal relations, the Common Law 
 excels. But in subjects relating to private rights and personal 
 contracts, and the duties of tutors and guardians the Civil law 
 
possesses points of superiority. The absolute and usufructuary 
 rights of property are treated of by it with refined and equit- 
 able distinctions, i Kent Com., 547. 
 
 With the Canon laWi — The Canon Law took cognizance 
 of matters growing out of religious offices. Clerical functions 
 in regard to sacraments, baptisms, marriages and death led to 
 jurisdiction over secular questions of legitimacy, marriage and 
 succession. Ecclesiastical control was assumed over the clergy, 
 not only, but crusaders, widows, orphans, and minors. The 
 Common Law, cumbrous and barbarous in many respects, has 
 found much in the Canon Law which it could profitably bor- 
 row. Its rules of descent, for instance, are derived from that 
 ■soiurce. 5 Encyclopaedia Britannica, 20. 
 
 Of What the Roman law is composed and how it was 
 developed! — Its elements comprised the ancient regal con- 
 stitutions ; the laws of the twelve tables ; the statutes of the 
 senate; the edicts of the praetor; the responsa prudentium or 
 opinions of learned lawyers ; and the imperial constitutions. 
 The last consisted (i) of judgments in answer to petitions, and 
 made by rescript, i. e., letter; (2) of oral decrees, made in open 
 court ; (3) of edicts, or voluntary ordinances. The later con- 
 stitutions were codified by Theodosius the younger, A. D. 438. 
 The compilations of Justinian, a century after, formed the 
 Corpus Juris Civilis, which consisted of (i) the Ce>de, contain- 
 ing in twelve books all the imperial constitutions worth pre- 
 serving, from the time of Hadrian to Justinian, (2) the fnsii- 
 iutes, containing the first principles of the law in four books, 
 (3) the Pandects or Digests, opinions of eminent lawyers, (4) 
 the Novels, or recent constitutions supplementary to the Code, 
 which were made by Justinian and added to by his successors 
 The Roman law was practically forgotten during the middle 
 ages but revived about 1130 A. D. and it forms the basis of 
 modem European Continental law. i Bl. Com., 80 ; i Kent 
 Com., 515 ; Bouv. L. D. 
 
 Its importance in States where the Common Law is in 
 forcei — It is useful for reference and comparison, many of its 
 principles have been adopted, and it has been followed in 
 certain English Courts, such as those of Admiralty. 
 
 Of what the Canon Law is composed, and its impor- 
 tancei — It is a body of Roman ecclesiastical law, comprising 
 opinions of the ancient Latin fathers, the decrees of general 
 counoils, and the decretal epistles and bulls of the Holy See. 
 They were compiled by Gratian, an Italian monk, about 1151 
 A. D., and collections of subsequent papal decrees have been 
 added, all together forming the Corpus Juris Canonici. In 
 England it is supplemented by legatine and provincial con- 
 stitutions. It was formally enacted by Henry VIII. It is 
 
chiefly important in Catholic countries, but has been used in 
 English ecclesiastical courts, (i Bl. Com., 82.) Consequent- 
 ly our jurisprudence has been influenced by it ; e. g., upon 
 matrimonial questions. 
 
 In what Euglish courts the Civil and Caiiou Law hare 
 been permitted to be used.— One, or both, have been in the 
 Ecclesiastical, the Military, the Admiralty Courts, and those 
 of the Universities; but with limitations. 
 
 General customs as a part of the Common Law. — By 
 
 these the determinations and proceedings in ordinary courts 
 of justice are directed, except as modified by statute, i Bl. 
 Com., 68. 
 
 Examples of such customs. — The rules regulating the 
 conveyance of property, the remedies for civil injuries, punish- 
 ments for crimes and pleading. 
 
 Meaning of the rule "stare decisis." — To abide by 
 precedents. 
 
 To what extent precedents must be adhered to. 
 Power of courts to overrule prior decisions. — A superior 
 
 court is not bound by the adjudications of an- inferior one. A 
 court of lower jurisdiction must follow the decisions of its ap- 
 pellate court. Where a question arises a second time in the 
 same court, the rule stare decisis applies, but not inflexibly. 
 A well understood and established rule, though somewhat un- 
 wise, will be adhered to, but a former case flagrantly in error 
 will be overruled. This does not imply a change in the law, 
 but that the law was incorrectly stated. Ch. Bl., 36. 
 
 Extent to which decisions have been overruled in 
 English and American Law.— Our Court of Appeals ad- 
 heres less rigidly to precedents than did the old English 
 courts, but even they sometimes overruled former decisions. 
 
 Name of a treatise giving a list of overruled cases. 
 — Bigelow's Overruled Cases. 
 
 Effect to be given in the several States to decisions 
 in the Federal Courts.— Those of the U. S. Supreme Court 
 are binding in the construction of the U. S. Constitution, but 
 not upon most other questions. Decisions in the highest 
 courts of the States construing the respective State constitu- 
 tions are customarily followed by the Federal Courts. 
 
 To decisions of the courts of one State in other 
 
 States. — They may be cited by way of argument but are 
 not at all binding. Ch. Bl., 34. 
 
 Meaningof "Dicta" or "Obiter Dicta."— "Sayings," 
 or " sayings by the way." Opinions expressed by a judge 
 in his opinion collateral to the point in issue and not neces- 
 sary for its decision. They are not binding as prficedents. 
 J 57 U. S., 574. 
 
What is a record. — V written memorial of the proceed- 
 ings and judgment, preserved in the court. 
 
 \ reporti — A published history of the case, particularly 
 the decision of the court. The old reports were taken down 
 in notes at the trial. 
 
 What a report COntainSi — (i) The names of the parties. 
 (2) The syllabus. (3) Frequently a brief statement of the 
 facts of the case, but these are sometimes found in the opinion. 
 (4) The names of the counsel on both sides, often accompan- 
 ied by the substance of their arguments. (5) The opinion of 
 the court, containing the decision. 
 
 Syllabus or head sotei its nature and purpose.— it is 
 
 a synopsis of the principles of law laid down by the court, and 
 is intended for purposes of convenience. 
 
 By whom prepared. — Generally by the reporter, occa- 
 sionally by the court. 
 
 How the point decided is denoted ia a report.— By the 
 
 word " held." 
 
 How "Dicta" are denoted. — By ^'semble" or "it seems." 
 A question left in doubt is denoted by " Qtt.," standing for 
 " Quare." The absence of any such demonstrative word is 
 ostensibly equivalent to " Aeld" but often accompanies a 
 mere dictum. 
 
 Names of some of the earliest EngHsh reporters and 
 
 who are the most distinguished. — Coke, Croke, Yelverton, 
 Saunders, Vaughan. The first two are especially dis- 
 tinguished. 
 
 What are the Tear-Books. — Annual reports extending 
 from Edward II. to Henry VIII., written in Norman French 
 by salaried official court scribes. They maintained a higher 
 degree of merit than the private reporters to whom the work 
 subsequently was left. 
 
 Names of some of the most eminent modern reporters. 
 — Wallace and Peters in the Federal, and Wendell, Sickels 
 and Hun in the New York courts. 
 
 How reports are cited. — By an Arabic numeral denoting 
 the volume of the series, followed by the name of the reporter 
 or other title, in full or abreviated, and another Arabic nu- 
 meral designating the page, usually that on which the case 
 begins. E. g., 4 Dallas, 8 ; 75 N. Y., 344. 
 
 How a decision is to be analyzed to determine its 
 Talae and weight as authority.—lnquire (i) Was the de- 
 cision nisi prius or in banc / (2) Did the counsel fully argue 
 the case, as well as submit briefs ? (3) What judges held the 
 court ? (4) Was the opinion that of an individual judge, or 
 per curiam I (5.) What was the grade of the court? (6) Was 
 thexourt unanimous or divided ? (7) Was the opinion written 
 
or delivered orally and taken down in notes, as were the older 
 ones ? The opinion should, of course, be examined as to its 
 intrinsic merits and it must also be found out whether it has 
 been overruled. Lectures at Columbia College Law School. 
 What is a digest, and how prepared. — A collection of 
 brief abstracts of the principles of law in reported cases, ar- 
 ranged under topics and sub-topics. They are prepared by 
 private persons. 
 
 What are the most valuable English digests.— Before 
 1756, Coventry & Hughes' Digest, Comyns' Digest, Bacon's 
 Abridgment, Viner's Abridgment. Since 1756, Fisher's 
 and Mew's digests, and the supplementary volumes by Mew 
 or Emden. There is an American reprint of Fishers', edited 
 by Jacobs. Equity cases are found in Chitty's Digest and 
 Admiralty cases in Pritchard's Digest. Lecture at New York 
 Law School. 
 
 General Digests of American law. — For all the States 
 and the Federal courts, the United States Digest, supple- 
 mented by annual volumes now known as the American. 
 For Federal court cases, Abbott's National Digest. There are 
 also digests of the law upon special topics. Ibid. (A com- 
 prehensive digest of American and Enghsh law, called the 
 Century, is now being published.) 
 
 New York digests. — Abbott's and Brightley's, with sup- 
 plementary volumes of the former; also Gibbons' Weekly 
 Digest; and digests of Court of Appeals cases only by Brown 
 and by Danforth and Wickes. Ibid. 
 
 How decisions later than a digest may be found. — 
 
 By consulting any late reports not yet digested. Advance 
 sheets of the various New York State reports are published 
 weekly in one volume. Other cases may be found in the 
 series of the National Reporter system, etc. 
 
 Tables or books of cited cases ; their use and 
 
 Talue. — They are of use in tracing the later history of a 
 decision to determine whether the law enunciated in it has 
 been approved, modified or overruled by subsequent cases, 
 and as a guide to more recent adjudications upon the subject. 
 
 Degree of reliance to be placed in headnotes of 
 reporters or the abstracts of a digest.— They should be 
 viewed with suspicion except in the case of head-notes pre- 
 pared by the court, and where accuracy is imperative recourse 
 must be had to the opinion. 
 
 Legal treatises, how composed. — They are books written 
 by men learned in the law and contain systematic state- 
 ments of its principles within the topics considered. 
 
 From what sources their subject matter is derived. 
 — From reported cases, with some reference to older treatises. 
 
Use and value as compared with the reports and 
 .digests. — They are convenient in obtaining succinct state- 
 ments of law, but lack the authority of adjudicated cas6s, their 
 influence depending upon their intrinsic merit or the prestige 
 of their author. 
 
 Names of some distinguished English text-book 
 writers. — Glanville, Bracton, Britton, Fleta, Little'ton, Bacon, 
 Coke, Blackstone, Sugden, Feame, and Preston. 
 
 Of American writers upon the most important legal 
 topics. — Kent's Commentaries on American Law, and the 
 works of Story, on Equity Jurisprudence, etc., are true legal 
 classics. Parsons on Contracts, and Greenleaf on Evidence, 
 also rank high. 
 
 Relative value of a " nisi prius" decision. — This, 
 being rendered in the haste of a trial, usually by a single judge, 
 is of less weight than those of the appellate courts, where the 
 judges sit in banc, i. e., in full bench. 
 
 A "per curiam" opinion. — This is delivered in the name 
 of the court, as such, and has less force than those coming 
 from one or more members of the court individually (although 
 sitting in banc), because the feeling of personal responsi- 
 bility is greater in the latter case. 
 
 An opinion upon which the judges of a court were 
 evenly divided. — It does not establish an authoritative 
 precedent. 
 
 PARTICULAR OR LOCAL CUSTOMS. 
 
 Particular customs as part of the Common Law.— 
 
 They are supposed to be, for the most part, survivors of the 
 local legal usages which existed before the codes of Alfred 
 and Edward the Confessor. 
 
 Extent to which such customs exist in English law. 
 — In Blackstone's time, every manor possessed more or less of 
 them, and others of more importance prevailed in cities, 
 boroughs, etc. i Bl. Com., 74. 
 
 In American law. — The English local customs have few 
 parallels in the United States, but the usage in some places to 
 allow emblements, ill " away-going crops ", to a tenant for 
 years, contrary to the general rule, is such. Local business 
 usages which tacitly enter into contracts are, however, numer- 
 ous. Ch. Bl., 42. 
 
 Gavelkind and Borongh-English Explained.— The 
 former has prevailed chiefly in Kent, and its chief feature is 
 that lands descend to all the sons equally, instead of to the 
 eldest alone. By Borough-English, found in divers ancifent 
 boroughs, the youngest son is the heir, i Bl. Com., 74. 
 
Qualities which a particular custom must possess In 
 
 order to be valid.— (i) Proof. Gavelkind and Borough- 
 English are judicially noticed and their existence need not be 
 proved, but only that the lands in question are subject to 
 them. Of other customs the existence also, must in general be 
 proved before a jury. (2) Legality. It must generally be 
 shown that the custom dates "from time immemorial," has been 
 continuous and peaceable, and that it is reasonable, certain 
 («. e., definite in operation), compulsory, and consistent with 
 other customs pleaded at the same time. (3) Allowance. 
 Customs in derogation of the Common I.aw are construed 
 strictly and none are binding upon the king, i BI. Com., 75. 
 
 Legal memory was, at one time, fixed as reaching back 
 to the year r Rich. I (1189 A.D.). But afterward the prescrip- 
 tive right to a privilege could be proved by showing its enjoy- 
 ment for twenty years. Ch. BL, 43. 
 
 Customs and usages of business, to what extent 
 
 provable. — They are provable to show upon what assump- 
 tions or basis the parties contracted, for the purpose of 
 explaining, or annexing an incident to a contract, but not to 
 contradict its express terms. American and English Ency- 
 clopedia of Law, title, "Usages and Customs." 
 
 What qualities such customs must possess to be valid. 
 
 — ^A usage must be reasonable and not contrary to law; must 
 be certain, uniform, and, within the particular locality and 
 business in which it exists, general ; and the knowledge of the 
 parties as to the usage must be shown either directly, or pre- 
 sumptively from the prevalence of the same. No particular 
 age of such usage is required to be shown. Ibid. 
 
 THE WRITTEN OR STATUTE LAW. 
 
 Written laws, how made. — They are statutes, acts, or 
 edicts estabhshed by the legislative power. 
 
 The oldest English statute now V!i.Xwali,— Magna Charta. 
 Distinction between public and private statutes.— 
 
 Public statutes relate to the entire community or to persons 
 or things as a class s private ones relate to those of a class. 
 70 N. Y., 350. Public statutes are judicially noticed, but pri- 
 vate ones must be pleaded. Bouv. L. D., title, "Statute." 
 
 Illustrations of each. — An act authorizing the sale of 
 infants' Jand by guardians, generally, would be public; of a 
 paiticular infant's land, private. Acts creating a public 
 oonporation, or municipality, are held to be public, but creat- 
 ing a purely private corporation, private. 
 
How English Statutes are cited. — By indicating the 
 
 regnal year, or years, in which Pariiament sat, the chapter 
 and the section; e. g., 17 & 18 Vict., c. g6, § 2. All the laws 
 of each Parliamentary session constitute but one statute ; 
 hence, i W. and M., Stat. 2, c. 2, denotes the second session of 
 the year. Bouv. L. D., tit. "Citation of Authorities"; Ch. 
 Bl., 50. 
 
 American Statutes.— Example : N. Y. R. S., 9th ed., 
 
 ch. 41, § 6, p. 1387 ; meaning the sixth section of the forty- 
 first chapter of the ninth edition of the New York Revised 
 Statutes, found on page 1387. But such a full reference is not 
 customary. Session laws are cited thus : L. 1895, ch. 671, § 3. 
 
 What is a Declaratory Statute. — It is one reassertive of 
 
 the Common Law, establishing no new principle, but remov- 
 ing all doiibt as to what the law is. 
 
 An Enlarging Statute. — According to Blackstone's view, 
 it is one which increases the scope and operation of the law; 
 but the term is also used to denote an enabling one, which 
 increases individual rights of action ; e. g., authorizes the 
 making of leases in cases where the right did not previously 
 exist. Ch. BL, 52. 
 
 A Restraining statute. — The opposite of an enlarging 
 one, according to either sense. liiii. 
 
 Remedial statutes. — Blackstone employs the term to de- 
 note those which modify the Common Law, antithetical to 
 declaratory ones, which merely confirm it. They comprise, 
 therefore, the subdivisions, enlarging and restraining statutes, 
 (i Bl. Com., 86.) But it also signifies those which give an 
 injured party a remedy (Espinasse, Pen. Act. i), as contrasted 
 with penal ones. (Ch. Bl. 51.) 
 
 A Penal statute. One which commands or prohibits a 
 ihing under a certain penalty. Bouv. L. D. 
 
 How Penal and Remedial statutes are to be construed 
 
 respectively. — The former strictly, so as to limit their opera- 
 tion to the cases necessarily covered by them; the latter 
 liberally, enlarging or restraining the language beyond, but 
 not contrary to, the letter, so as to prevent a failure of the 
 remedy. (1 Kent Com., 465.) But courts are now reluctant 
 to counteract by liberal construction the legislative intent. 
 23 A. & E. Ency. of L., 410. 
 
 How statute construed which is penal in one aspect 
 and remedial in another. — Liberally in furthering the rem- 
 edy, strictly in enforcing the penalty. Ch. Bl., 55. 
 
 What is a mandatory statute. — One which is requited 
 to be obeyed, imder penalty of havirig the proceedings under 
 it Jieclared void. Abbott's Law Diet. 
 
 K Directory statute. — One the disregard of which will 
 
constitute an irregularity but not necessarily be fatal to the 
 proceedings thereunder (Black's Law Diet.), although a pen- 
 alty may thereby be incurred. 
 
 lUnstrationSi — A statute giving an individual or the pub- 
 lic a substantial right, as that of admission to bail, will be 
 considered mandatory (140 N. Y., 306); while if one pre- 
 scribes that an act be done on a certain day it may, in many 
 cases, be performed validly on another day. This construc- 
 tion is rather independent of the words used in the statute. 
 " Shall "is sometimes held as merely directory and " may " man- 
 datory. 23 A. & E. Ency. of L., 469; 14 ibid., 979. 
 
 Difference between "interpretation" and <<constrnc- 
 
 tion" of a Statnte* — The former is a determination of the 
 meaning intended in the words used ; the latter of the effect 
 to be given to them, if, because of contradictions or for other 
 reason, they cannot be carried out in pursuance of the strict 
 letter. They are then applied according to the cy pres 
 doctrine (i. e., approximately). Construction begins where 
 interpretation ends. The interpreter may, however, assume 
 all that is necessarily implied. (141 N. Y., 244.) Co- 
 lumbia Law Sch. Lect. 
 
 How words of a statute are generally to be under- 
 
 StOOdi — In their natural and ordinary sense. E. g., where 
 the law prescribed that a railroad train crossing a street must 
 blow a whistle, tHis was held to include a crossing on a bridge 
 above grade. {Ibid.) But words used technically are given 
 their technical meaning. , 
 
 Meaning of tlie rul^ <<noscitur a sociis " as affecting 
 construction of words. — That they are to be understood by 
 their connection with accompanying words. So where sev- 
 eral things enumerated are followed by some such phrase as " or 
 any other," etc., this is often restricted to mean any other of 
 the same general nature as those mentioned. And when 
 "having or keeping gunpowder " is used, the word " having " 
 1% limited in its scope by its association with " keeping." 23 
 A & E. Ency. L., 439. 
 
 Statutes <<in pari materia," how construedi— When 
 
 statues relate to the same subject they may be taken together 
 and construed as part of the same system, (i Kent Com., 463.) 
 So may different parts of the same statute, including if neces- 
 sary the title, preamble, etc. 
 
 How far the effects and consequences of a law are 
 considered.— We may deviate a little from the received 
 meaning of words which taken literally would lead to absurd 
 conclusions, e. g., that a punishment for " drawing blood on 
 a public street " should be imposed for the opening of a vein 
 by a surgeon, (i Bl. Com., 60.) Where a statute is ambig[u- 
 
13 
 
 ous, that meaning will be presumed to have been intended 
 which is just, reasonable, convenient and effective. 2^ A. & 
 E. Ency. of L., 358. 
 
 The reason and spirit of the law.— The statute will not 
 be held applicable to cases in which, obviously the legislature 
 could not so have intended ; as, that a reward offered to those 
 who would remain in storm bound vessels should be reaped 
 by one who stayed simply because he was too ill to leave. (1 
 Bl. Com., 61.) So the statutes of descent are held not to ex- 
 tend to a case when the heir murders his ancestor in order to 
 obtain the property. 115 N. Y., 506. 
 
 Meaning of the rule that the old law, the mischief 
 and the remedy are considered. — This is practically the 
 same as the " reason and spirit." By considering the defect 
 in the former law and the evil resulting therefrom, the appli- 
 cation of the new law may be confined to the removal of that 
 defect. Thus, for example, a statute prohibiting physicians 
 from giving in evidence professional communications is in- 
 tended to protect the patient and is held not to shield a man 
 charged with his murder. 79 N. Y., 424. 
 
 Effect of a saving clanse which is repngnant to the 
 purview of the statute.— it is void. Thus, if landa^lae vested 
 in the kmg, saving the right of A, A will retain no right, i 
 Bl. Com., 89. 
 
 Of a proviso which is so repugnant.- It will stand, 
 and to that extent repeal the purview, because it speaks the 
 last intention of the law-giver, (i Kent Com., 463, where, 
 however, the soundness of the distinction is questioned.) Ex- 
 ample ; Where a statute conferred upon State banks perfect 
 exemption from the penalty for taking usury, and in a follow- 
 ing section expressed it as the intention of the legislature to 
 place them upon a parity with national banks, it was held 
 that they might have only the partial immunities actually pos- 
 sessed by national banks. 59 N. Y., 53. 
 
 What is a proviso. — As exemplified in this case, it is a 
 clause operating to restrain the effect of the statute within the 
 intention of the legislature; a saving clause being merely the 
 exception of a particular thing from other things mentioned. 
 (59 N. Y., 59.) Generally speaking, a proviso is the state- 
 ment of a condition upon the fulfillment or non-fulfillment of 
 which something contained in another clause shall take effect. 
 (Bouv. L. D.) An exception, or saving clause, is contained in 
 the body of the statute ; a proviso generally follows in a sepa- 
 rate clause, introduced by the word "provided." A plaintiff has 
 the burden of proof to show that the defendant is not within an 
 exception, but the defendant must affirmatively bring his case 
 
14 
 
 within a proviso in order to avail himself of it. Colum. Law 
 Sch. Lect. 
 
 If two statutes are apparently inconsistent, what 
 
 rule of construction is followed— They are to be recon- 
 ciled, if possible, so that both may stand. Otherwise, the 
 later repeals the earlier one by implication. In New York a 
 substantial re-enactment is held to repeal the former statute 
 by implication. 8i N. Y., 211. 
 
 If the Common Law and a statute dififer.— The pre- 
 sumption is, that no change of Common Law was intended 
 beyond what is unavoidable, (i Kent Com., 464.) Thus, 
 statutes of limitation are strictly construed. A Common Law 
 remedy is not done away with merely by adding a statutory 
 one. 
 
 Repeal of statutes by implication, when deemed to 
 take placCi — An older one may be repealed by a later, ex- 
 pressly by a repealing clause, or imphedly, in whole or in part, 
 if they are inconsistent. 
 
 Effect of the repeal of a statute which imposes a pen- 
 alty for the wrongful act.— If nothing appears to the con- 
 trary, it puts an end to proceedings to enforce the penalty. 
 (23 A. & E. Ency. of L., 507.) This effect may be avoided' 
 by a general law, as is done in regard to acts of Congress. 
 (U. S. R. S., 2d. ed., § 13.) So in New York. N. Y. R. S., 
 9th ed., 117, 
 
 Effect of the repeal of a repealing statute.— The old 
 
 one is revived unless this be prevented by a special provision 
 in it or a general law, as under the Federal, New York and 
 other governments. (U. S. R. S., 2d ed., § 12; N. Y. R. S. 
 gth ed.,p. 117) A statute absolutely repealed by another, of 
 limited duration, is not revived by the natural expiration of the 
 latter. 
 
 Effect of a provision in a statute, that the statute 
 shall not be repealed. — It could have no ettect. 
 
 When will statutes in this country be deemed irre- 
 
 pealable. — when the Constitution would prohibit such repeal, 
 as in cases where the statute is in the nature of a contract ; a 
 State not having power to pass a law impairing the obligation 
 of contracts. (4 Wheaton, 518.) 
 
 Validity of a statute which is opposed to natural jus- 
 tice and reason. — The courts cannot for this cause avoid 
 it. (Ch. Bl., 58.) Yet a statute utterly absurd or impossible 
 to carry out would not be given effect. 
 
 When the literal meaning of a statute would lead to 
 absurd and unjust conclusions, what rule of construction 
 is followed. — That interpretation should be given which ren- 
 
15 
 
 ders the meaning reasonable, since an absurd purpose is not 
 to be attributed to the law-makers. 95 N. Y., 554, at 559. 
 
 Kow the constitutionality of a statute is determined 
 
 in this COUntryi — By adjudication upon an actual case in 
 which the question is involved. 
 
 What is meant by the <' equity of a statute."— 
 
 Its application when equitably construed. 
 
 As a principle of construction.— An equitable construc- 
 tion is nearly, or quite, synonymous with a liberal one. The let- 
 ter of the statute, defective through its universality of scope, is 
 enlarged or restrained to adapt it to the circumstances of the 
 particular case, in accordance with its spirit and reason. 
 
 Meaning of the word "Equity "in the expressions 
 " Equity Jurisprudence," "Courts of Equity."— That sys- 
 tem of jurisprudence which was administered by the High Court 
 of Chancery in England, in the exercise of its extraordinary- 
 jurisdiction. Bispham's Principles of Equity, § i. 
 
 How such courts differ ft-om courts of Common Law 
 in iheir jurisdiction and procedure. — Their jurisdiction is 
 
 over many civil questions of property where the Common Law 
 remedies do not reach or are inadequate. They maintain a 
 system of practice very different from that of the Common 
 Law. No jury is required, the testimony may be taken in 
 writing wherever the witnesses are at the time, and the remedy 
 is enforced in personam, by means of contempt proceedings. 
 
 RIGHTS OF PERSONS. 
 
 A right defined. — That which a man is entitled to have 
 or to do, or to require from others within the limits prescribed 
 by law. Rights are either "of persons" or "of things" 
 (meaning, 2« rif^ar// thereto), i Bl Com., 122, 
 
 Compared with a duty. — Rights belong to a man, duties 
 are required from him. They may be included in the same 
 category, for what is due to one man is due from another, i 
 Bl. Com., 123. 
 
 Absolute rights and relative rights, defined. — The 
 former belong naturally to men as individuals, the latter as 
 members of society, (i Bl. Com., 123.) But obviously, abso- 
 lute rights, even, do not presuppose a position of complete 
 isolation. 
 
 Illustrations. — The right of property is an absolute one ; 
 that of the government to require allegiance from its subjects, 
 a public relative one ; and that of a guardian to control his- 
 ward's estate, a private relative one. Bouv. L. D., "JRight." 
 
i6 
 
 Classification of absolute rights. — Those of, (i) per- 
 sonal security, (2) personal liberty, (3) private property. The 
 first includes the right to life, limb, body, health and reputation. 
 I Bl. Com., 129 
 
 Important State papers in England for the protec- 
 tion and enforcement of rights : Chief contents of each 
 of these papers. Importance of these papers in Ameri- 
 can constitutional law. "Magna Charta."— The great 
 charter of English liberties, wrung from King John by his 
 barons, in arms, June 19, 1215, and confirmed as many as 
 thirty-two times between that date and 14 16. One section 
 provides, in effect, that no freeman shall be deprived of lands 
 or liberty without legal judgment of his peers, or the law of 
 the land, and that justice shall not be sold, delayed or denied 
 to any. Derived from it is the U. S. Constitutional provision 
 that " no person shall be deprived of life, liberty or property 
 without due process of law " (Amendments, Art. 5) ; and 
 analogous clauses in State constitutions. 
 
 The Petition of Right. — A Parliamentary declaration of 
 the liberties of the people, assented to by Charles I., in the be- 
 ginning of his reign. It reasserted existing rights and con- 
 tained provisions, among others,, against the unlawful quarter- 
 ing of soldiers upon the citizens and levying taxes without the 
 consent of Parliament. Upon it is founded the U. S. Consti- 
 tutional provision that "no soldier shall, in time of peace, be 
 quartered in any house without the consent of the owner, or 
 in time of war, but in a manner prescribed by law." (Amend- 
 ments, Art. 3.) Ch. Bl., 67. 
 
 The Bill of Rights was exacted at the time of the acces- 
 sion of William and Mary and provided for free speech in 
 Parliament; freedom in electing the members thereof ; that 
 the king might not dispense with the laws ; and that excessive 
 fines or bail be not required, nor cruel or unusual punishments 
 inflicted. Some of our Federal and State constitutional pro- 
 visions are based upon it. Ch. Bl, 67. 
 
 The "Habeas Corpus" Act, 31 Car. IL, ch. 2, con- 
 firmed what is said always to have been a matter of right, that 
 a writ is obtainable for the purpose of bringing any person re- 
 strained of his liberty into court, to ascertain the cause of his 
 detention. This principle is borrowed by the American con- 
 stitutions or statutes. 
 
 The Act of Settlement, passed at the beginning of the 
 eighteenth century, limited the crown to the reigning 
 house and made further provisions, upon certain of which are 
 based the U. S. Constitutional rules that. Federal judges shall 
 hold office during good behavior and at a fixed salary (U. S. 
 
17 
 
 Const, Art. 3, § i), and that the President cannot grant re- 
 prieve or pardon in impeachment cases. {Ibid., Art. 2, § 2.) 
 
 Right to life, how protected.— By the power of penal 
 laws, as well as by the right of self-defence. Where one is 
 threatened with personal violence, he may, in a proper case, 
 require the dangerous person to appear before a magistrate 
 and give bonds to keep the peace. 
 
 When life beginSi — For many purposes, before birth, as 
 soon as an infant is able to stir. 
 
 Killing unborn child, how far a crime.— It is punish- 
 ishable as such, although not with the same severity as is the 
 killing of a person after birth, (i Bl. Com., 129.) It is man- 
 slaughter under the New York Penal Code. 
 
 What legal acts can be done for the benefit of a child 
 " in ventre sa mere." — It is capable of having a legacy or 
 devise made to it, or a guardian assigned, and even under 
 Common Law, of receiving certain estates, i Bl. Com., 
 130. 
 
 Civil death, what constitutes.— At Common Law, ban- 
 ishment, abjuring the realm, becoming a monk, or attainder 
 upon sentence of death for a crime, i Bl. Com., 132. 
 
 Effect of, in law. — Such person's property, if not forfeited, 
 might be disposed of as if he were actually dead. Thus the 
 testament of one who became a monk would take effect at 
 that time (i Bl. Com., 132). In New York one is considered 
 civilly dead who is sentenced to imprisonment for life, but he 
 is not divested of his property rights. 
 
 Right to security in limbs and body. — The members 
 
 useful in fighting, such as an eye, arm, or front tooth, were, at 
 Common Law, what chiefly comprised "limbs," and the depriva- 
 tion of the use of which constituted mayhem. In New York 
 mayhem, or maiming, has been extended in scope, and includes 
 disfigurements, etc., which are not injuries to the fighting 
 powers. Even by Common Law, the rest of the body, besides 
 the limbs, is protected from menaces, assaults, beating, wound- 
 ing, etc. 
 
 What torts or crimes violate this right.— Injuries to 
 limbs or body, in their tortious aspect, are largely included 
 in "Assault and Battery '' and " Negligence." The appropriate 
 crimes, as classified under the N.Y. Penal Code, are " Maiming" 
 and " Assaults." Perhaps " Duels " and " Challenges," also 
 should be mentioned in this connection. 
 
 Self-defence, how far permissible.— it justifies, where 
 
 necessary, the killing of him who comes to commit a felony 
 with force against one's person or habitation, or against a 
 person in one's presence or who stands near him in domestic 
 
i8 
 
 relations; but not to prevent a mere trespass. 2 Kent Com., 
 15 ; N. Y. Penal Code, §205. 
 
 Duress "per minas/' what COUStitntes. — Personal re- 
 straint caused by threats of injury to life or member, or, ac- 
 cording to good authority, of illegal imprisonment ; a contract 
 made under the influence of which may be avoided. 5 Hill, 
 
 154- 
 
 Duress of impriSOnmenti — The restraint of liberty illei- 
 gally, or an illegal aggravation of lawful imprisonment. Ch. 
 BL, 70. 
 
 Duress of goods. — This does not mean a threatened 
 injury to property, which, by weight of authority, with some 
 dissent, does not constitute duress ; but the unlawful withhold- 
 ing of goods until money be paid to redeem them. Money 
 so paid may be recovered. Ibid. 
 
 Effect upon a contract of procuring it by duress. — 
 
 If made unwillingly it is voidable by the party who was 
 under duress, but it is otherwise valid. 
 
 Right of health. — The preservation of one's health from 
 things detrimental to it. i Bl. Com., 134. 
 
 Right of reputation. — The security of one's character 
 and good name from detraction. Ibid. 
 
 How these rights may be violated, and how pro- 
 tected. — The right of health may be infringed by nuisances, 
 such as a neighboring chemical factory exhaling noxious gases. 
 This is punishable as a crime if it be a public nuisance. It 
 gives rise to damages as a tort if a private one, or if a public 
 one which has caused special damage to the individual. A 
 private, and in some cases a pubUc one may be enjoined in 
 Equity, or may be abated by the act of the person injured. 
 (Bouv. L. D., '^Nuisance.") The right to reputation is vio- 
 lated by the torts libel, slander, and maUcious prosecution. 
 Libel is also a crime. 
 
 Right of liberty, how violated.— By the Common Law 
 crimes, false imprisonment and kidnapping, the latter of which 
 is incorporated into the N. Y. Penal Code. By the tort, false 
 imprisonment, which means any unlawful restraint of one's 
 freedom to go where he pleases ; though not merely the pre- 
 vention of his movements in a certain direction. 
 
 Efficacy of the " Habeas Corpus " Act for the pro- 
 tection of this right. — While it remains unimpeached no 
 .-subject need long be detained illegally in custody, (i Bl. 
 Com., 135.) 
 
 The Federal government in this country may suspend it 
 .only "when in case of rebellion or invasion the pubhc safety 
 may require it." (U. S. Const., Art. i, § 9.) Similarly in N 
 Y. State. N. Y. Const., Art, i, § 4. 
 
19 
 
 Of the writ "Ne Exeat Regno."— This was a measure 
 by which subjects could be restrained from leaving the King- 
 dom. Such a writ was also used in enforcing the process of 
 courts of Equity. For this purpose it is continued under the 
 Federal Government (U. S. R. S., 2d ed., § 717), and by the 
 N. Y. Code of Civil Procedure (§ 548) abolished, but sub- 
 stantially reenacted (§ 550) under the name, " order of arrest " 
 
 Object and effect of the writ of " Habeas Corpus " 
 when issued.— Under the N. Y. Code of Civ. Pro., there is 
 such a writ to bring a person temporarily from prison to testify 
 when needed as a witness (§§ 2008-2014) and one to inquire 
 into the cause of a person's detention (§§ 2015-2066). The 
 latter, which is the true writ of habeas corpus, enables him to be 
 set at liberty if, upon inquiry, his detention is found to be un- 
 lawful; and it cannot be resorted to where one is detained 
 under mandate of a Federal court of exclusive jurisdiction, 
 or by a final judgment or decree of another competent 
 tribunal. 
 
 Right of property, how protected.— The fifth amend- 
 ment to the U. S. Constitution provides that no person shall 
 be deprived of "life, Hberty, or property without due process 
 of law, nor shall private property be taken for a public use 
 without just compensation." This is one of the amendments 
 which limits the Federal government only, but in the State 
 constitutions are analogous provisions. 
 
 For what purposes private property may be taken 
 by eminent domain. — For public purposes, and in N. Y. for 
 
 private roads, drains, ditches, etc., (Const., Art. i, § 7, and see L. 
 1895, ch. 384). It is through eminent domain, also, that pro- 
 perty escheats to the State in case of failure of heirs. (Art. i, 
 § 10.) 
 
 Upon what conditions. — Only upon due process of law 
 and just compensation to the owner. 
 
 A use is public only where a legal duty devolves upon the 
 persons or corporation holding the property, to furnish the 
 public therewith; <?.^.,to carry them, for reasonable compen- 
 sation, as passengers. The term implies " the use of many," 
 or " by the public," but it may practically be limited to the in- 
 habitants of a small or restricted locality, yet the use must be 
 to them in common and not for a particular individual. 130 
 N. Y., 249, 258. 
 
 By whom it may be talien. — For public uses, by the legis- 
 lature and those to whom it may delegate the power; 
 notably public corporations, such as cities and townships, 
 and quasi public corporations, such as railroad and bridge 
 companies. 
 
How far the courts review tbe action of the legis- 
 lature iu taking private property.— Far enough to deter- 
 mine whether the use was a pubUc one. (130 N. Y. 249.)" 
 But not to question the propriety of the taking. 
 
 How compensation measnredi — The New York rule is, 
 that the land bodily seized shall be appraised at its market 
 value and damages recovered also for injury to neighboring 
 land of the same owner. The latter may be reduced by 
 benefits to such adjacent land, whether they be special thereto 
 or common to ail the property in that locahty. (129 N. Y., 
 576; 138 N. Y., 257.) 
 
 Bight to destroy private property, to prevent spread 
 of fire ; to provide for defense against public enemies. 
 
 — These rights are justified not under the head of eminent 
 domain, but by public necessity, and are impliedly excepted 
 from the seemingly repugnant Constitutional clauses. No 
 action lies at Common Law by the individual who has sus- 
 tained the injury, but statutory provision is sometimes made 
 for compensation from public funds. Ch. BL, 80. 
 
 To what extent these rights may be exercised. — This 
 is determined by necessity and they may be exercised by any 
 private person, unless, by statute, they are limited to the dis- 
 cretion of certain officers. Ibid. 
 
 The inherent right of the State to pass laws making regu- 
 ations for such emergencies, or more frequently by statute to 
 impair consequentially the value of property, where public 
 health or safety requires it, without making compensation 
 therefor, is called its " police power " and is one of three 
 important prerogatives, the other two being eminent do- 
 main and the taxing power. A law prohibitory of the liquor 
 traffic is valid under the police power, as a measure to protect 
 the health and morals of the people, although the value to 
 liquors held in stock may thereby in great part be destroyed. 
 But " public necessity " gives rights without the passage of 
 statutes under " police power." 
 
 Right of taxation. — Since the government affords the 
 protection which enables private property to be enjoyed, it 
 may call for a part thereof to help defray its expenses ; even 
 to the entire value thereof, has been asserted. Unlike emin- 
 ent domain, taxation proceeds upon the idea of proportionate 
 contribution. 
 
 Protection to legal rights afforded by courts of jus> 
 tice. — Since the law is the supreme arbiter of life, liberty and 
 property, courts of justice must always be open for its due 
 administration, i Bl. Com., 141. 
 
 The right of petition as a means of redressing in- 
 juries. The right to bear arms. — Both of these were es- 
 
tablished Common Law rights in England, although regulated 
 ^by statute (i Bl. Com., 143) and are guaranteed in this 
 country by Constitution or statute. U. S. Const. Amendments 
 Arts. I & 2 ; N. Y. Const., Art. i § 9 ; N. Y. R. S., 9th ed., 
 pp. 1949-50. 
 
 Meaning of the expressions <<Iaw of the land," or 
 "due process of law" in English and American con- 
 stitutional laWi — The law in its regular course of adminis- 
 tration through courts of justice. 2 Kent Com., 13. 
 
 Rule as to whether these phrases import trial by 
 
 Juryi — Not in cases where trial without jury was in vogue at 
 the time when the constitutional provisions containing those 
 phrases were adopted ; for instance, Equity cases and soine 
 petty misdemeanors. Ch. BL, 74. 
 
 As to the right to establish new forms of summary 
 procedure^ — To do this the legislature has no power. Ibid.; 
 35 N. Y.,302. 
 
 SUBORDINATE MAGISTRATES. 
 i-SHERIFF. 
 
 The chief executive officer of the State within *the 
 county. 
 
 Origin of the namCt — From the Saxon, scyre, shire, and 
 reve, keeper. The Latin equivalent is said to be vice-comes, 
 meaning deputy of the earl. 
 
 How selected in Englandt — Originally, the office wats 
 elective ; but afterwards it became generally subject to royal 
 appointment, from three candidates selected by twelve high 
 judges of the kingdom. 
 
 In this country. — They are generally elected by the peo- 
 ple of the counties ; in New York for terms of three years. 
 The corresponding Federal district officers, called '"mar- 
 shals," are appointed by the President, subject to confirmation 
 by the Senate. N, Y. Const., Art. 10, § i ; U. S. R S., 2d 
 ed., § 776 ; Ch. BL, 88. 
 
 Judicial powers of the sheriff. — In, Blackstone's titne 
 they were quite extensive, and he might try, with a jury, all 
 causes of forty shillings' value and under, as well as election, 
 and other civil cases. (Bl. Com., 343.) In the tf. S., his 
 chief judicial duties are to carry out writs of iliquiry to esti- 
 mate damages. 22 A. & E. Ency. of L., 525. 
 
 Ministerial powers. — He is to execute the process of 
 the courts, i Bl. Com., 344. 
 
 Functions as keeper of the peace. — He may arrest 
 
 all who break, or attempt to break it. He is bound to 
 
pursue felons and to commit them to jail for safe custody, and 
 to defend his coimty against the enemies of the State when 
 they enter it. For this purpose he may call upon any of th? 
 people to help him, which is known as th.e^ posse comitatus, or 
 power of the county, i Bl. Com., 343. 
 
 In the execution of judicial process, botb criminal 
 
 and civili — He is to serve writs, or to arrest, take bail or 
 retain in custody ; summon and return the jury ; and carry 
 the judgment or sentence of the court into effect, i Bl. 
 Com., 344. 
 
 Duties of under-sheriffs, deputy-sheriffs and bailiffSi 
 
 — The under-sheriff is appointed by the sheriff to hold office 
 during his pleasure, and has many of his powers. Any num- 
 ber of deputies may also be appointed to perform the ordi- 
 nary ministerial duties of the sheriff. Bailiffs were English 
 officers chosen by him to issue process, make arrests, etc., with- 
 in districts called hundreds. In this country their functions 
 are often performed by the under-sheriff or deputy. Neitherthe 
 sheriff nor his assistants; nor the constable, coroner, etc., may 
 practise as attorney or counselor-at-law while in office. 
 Bouv. L. D., "Sheriffs"; Crocker on Sheriffs, etc., §§ 13, 15; 
 N. Y. Code Civil Pro., § 62. 
 
 How far the sheriff is responsible for their actSi — 
 
 For the deputy's neglect or misfeasance of duty, the sheriff 
 alone, is civilly responsible to third parties whose interests are 
 prejudiced and the deputy to the sheriff on his bond. For 
 aggressive injury to property, by the deputy, both of them are 
 civilly liable. Criminally, the deputy, and he alone, is liable 
 for wilful misdoings in all cases where the sheriff would be if 
 acting personally. Crock, on Sher., § 19. 
 
 Responsibility of a sheriff for the acts of a jailer. — 
 
 The jailer is the servant of the sheriff, who is civilly respon- 
 sible for his acts. If a person escapes from custody in a civil 
 case the sheriff must answer to the party whose interests are 
 prejudiced, and the jailer to him. And iiany prisoner escapes,, 
 the sheriff and jailer, individually, are criminally responsible, 
 according to the guilty negligence of each. In New York the 
 sheriff still has charge and manageriient of the county jail. 
 Crock, on Sher., § 20; Ch. Bl., 93; N. Y. R. S., 9th ed., pp. 
 623, 643. 
 
 Different kinds of wrongful acts for which the sher- 
 iff can be sued. — He and his sureties are liable to parties 
 for breaches of his ministerial duty, such as an escape ; failure 
 to levy, return process, or deliver goods or money ; or for 
 damage to property through negligence ; for an irregular sale ; 
 for levy on exempt goods ; and to a stranger to the writ for 
 levying on his property. Personally, he is also liable upon 
 
23 
 
 acts outside of his oflScial duties and for penalties. 22 A. & 
 E. Ency. of L., 555. 
 
 2.-C0R0NER. ORIGIN OF THE NAME. 
 
 An ancient common law office called coroner, coronator, 
 because originally it had much to do with pleas of the crown, 
 those wherein the king was more immediately concerned, i 
 Bl. Com., 346. 
 
 How selected in England and in this country. — In 
 
 England they were elected by the people of the county, and 
 this is still the rule in New York; four being chosen in each 
 county and the term of office being three years. N. Y .R. S., 
 9th ed., p. 642. 
 
 General duties of a coroner described.— To hold in- 
 quests over persons slain, suddenly deceased, or dangerously 
 wounded ; to issue process for the arrest of a person there ac- 
 cused ; to execute process where the sheriff is a pa'Tty ; to act 
 vice the sheriff where there is no under-sheriff; and, as well as 
 the sheriff in N. Y. State, to take charge of wrecked property. 
 Crock, on Sher., etc., § 892 ; N. Y. R. S., 9th ed., pp. 645-6, 
 762, 265; isr, Y. Code Civ Pro., §§ 172-181; N. Y. Code 
 Crim., Pro., §§ 773-785. (As to coroner, sheriff, etc., investi- 
 gating cause of fires when requested, see N. Y. R. S., 2161.) 
 
 3.-JUSTICES OF THE PEACE. 
 
 Public officers invested with judicial powers to prevent 
 breaches of the peace and bring to punishment offenders. 
 Bouv. L. D. 
 
 How selected in England and in this country. — In 
 
 England they are appointed by the Crown. In New York 
 one is elected every year in each town to hold office for four 
 years. (N. Y. R. S., 9th ed., pp. 727-728.) In some States 
 the Executive appoints them. Bouv. L. D. 
 
 Justices " of the quorum ; " meaning of this ex- 
 pression. — In England two or more justices might hear crim- 
 inal causes, provided one of them v/ere of the number specially 
 commissioned, thus : " of whom (quorum) we wish some one of 
 you, A, B, C, D, etc., to be one." Eventually it became the 
 practice to make them all justices of the ^a<?r«wz, with some in- 
 significant exception in deference to the rule, i Bl. Com., 315. 
 
 What judicial powers justices possess, both civil and 
 
 criminal. — Civil : principally to try cases on contract or for 
 the recovery of a chattel or for injury to property, where the 
 
24 
 
 amount claimed does not exceed $200. They cannot try 
 the title to realty. (N. Y. Code Civ. Pro., §§ 2862, 2863.) 
 Criminal ; to hold a court of Special Sessions wherein to enter- 
 tain charges of petty larceny, malicious trespass, injuries to 
 property and many other misdemeanors. (N. Y. Code Crim. 
 Pro., § 56.) They also act as committing magistrates for higher 
 crimes. They generally possess jurisdiction to try, summarily, 
 without a jury, offences such as vagrancy, drunkenness and 
 profanity. Ch. Bl., 102. 
 
 What ministerial powerSi — Issuing warrants for accused 
 persons ; arresting without warrant for a breach of the peace 
 in their presence; binding over to keep the peace persons 
 charged with threatening violence; subpoenaing witnesses; 
 committing, discharging, or admitting to bail, upon [judical] 
 examination, accused persons. They often have power to ad- 
 minister oaths, take acknowledgments of deeds, celebrate mar- 
 riages, etc. Ibid. 
 
 What is the differeuce between judicial powers and 
 
 ministerial powers. — The former contain an element of in- 
 dividual discretion; while in the latter the course of action is 
 distinctly defined by law. Ibid. 
 
 Liability of a justice for injuries done by liim in the 
 exercise of judicial powers, (a) If he acts without 
 
 jurisdictioUt — He is liable to the party aggrieved if he was 
 aware of the facts constituting the defect, although his inten- 
 tions were honest. 12 A. and E. Ency. of L., 508; Ch. BL, 
 103- 
 
 (h) If he exceeds his jurisdiction. — He is liable (2 
 
 Gray, 410), although a judge of a superior court might not be. 
 (13 Wall, 335 ; 73 N. Y., 12.) 
 
 (c) If he acts maliciously and corruptly within his 
 jurisdiction. — According to the New York rule, he is not 
 liable. 3 Denio, 117; 93 N. Y., 557. 
 
 (d) If he commits error in good faith, acting with- 
 in his jurisdiction.— He is not liable. 102 N. Y., 296. 
 
 Liability of a justice for injuries done by him in 
 the exercise of his ministerial powers.— He is liable to 
 the party whose interests were damaged. Ch. BL, 103. 
 
 4.-CONSTABLE. 
 
 A peace officer best known in America as a local function- 
 ary who performs ministerial duties for justices' courts. 
 
 Origin of the name. — According to Blackstones' view, it 
 is from comes stabuli, count of the stable ; the high constable 
 having charge of the matters of chivalry, i Bl. Com., 355. 
 
25 
 
 How selected in England and in this country.— In 
 
 England they were appointed by the jury at , the court leet. 
 (r Bl. Com., 355.) In New York the people of each town- 
 ship elect not more than five constables, who hold office for 
 one year. N. Y. R. S. 9th ed., p. 727. 
 
 General duties and responsibilities.— Originally they 
 were of two sorts, high and petty, the duty of each class being 
 to preserve the peace. The petty constables, who survive under 
 our present laws, act chiefly in serving writs, making arrests, 
 etc., for the justices' courts. Under the N. Y. Code Crim. Pro., 
 (§ 177), they may arrest without warrant, for a felony actu- 
 ally committed, a person reasonably suspected thereof; but under 
 Common Law a reasonable suspicion of the fact of commission 
 l)y jMiuhntly was sufficient for their protection in so doing. 
 
 5 -SURVEYORS OF THE HIGHWAYS. 
 
 Their general duties and functions. — In England they 
 were parish officers appointed by local justice to keep the high- 
 ways in repair. In New York the people of the townships 
 elect highway commissioners andtheseapfioint in small districts 
 overseers of the highways for the more immediate supervision 
 of the work, i Bl. Com., 357 ; N. Y. R S. 9th ed., pp. 666, 
 727- ■ 
 
 6 -OVERSEERS OF THE POOR. 
 
 Their general duties and functions.— By virtue of a 
 statute, 43 Eliz., ch. 2., such parish officers were con- 
 stituted, to reheve the poor unable to work and to furnish em- 
 ployment for those who could do so. In New York they 
 are, for the former purpose, at least, elected in the sever^ 
 townships, i Bl. Com., 359; N.Y. R. S. 9th ed., pp. 727- 
 
 7*9- , . ... 
 
 ALIENS AND NATIVES. 
 
 Who is an alien One bom out of the jurisdiction and 
 
 allegiance of the United States and who has not been natural- 
 ized. 2 Kent Com., 50 ; Bouv. L. D. 
 
 A native. — A natural-bom citizen, i Bl. Coth., 366 ; 2 
 Kent. Com., 39. 
 
 Of what the duty of allegiance consists.— Of the tie or 
 Mgattien which binds the citizen to the State, in return for the 
 protection afforded by the latter, i Bl. Com., 336. 
 
26 
 
 Compared with the duty of fealty under the Feudal 
 System. — Allegiance was due by all the subjects to the king 
 alone. Fealty was an analogous obligation entered into by a 
 feudal vassal when he received his lands from his mesne lord. 
 1 Bl. Com., 366. 
 
 Oaths of Allegiance, of Supremacy, and of Abjuration, 
 
 in English laWt — The first contained a promise " to be true 
 and faithful to the king and his heirs, and truth and faith to 
 bear of life and limb and terrene honor, and not to know or 
 hear of any ill or damage intended him, without defending him 
 therefrom." The oath of Abjuration was a renunciation of 
 the Pope's pretended authority. The oath of Supremacy was 
 introduced in the reign of William III, and was somewhat 
 more explicit than that of Allegiance. It was administered 
 to persons in office, while the latter could be requir^4 of s^^y 
 subject, and even of a resident alien, i Bl. Com., 367. 
 
 The oath of Allegiance in modern times. — in England 
 
 it is an oath to " be faithful and bear true allegiance to Her 
 Majesty Queen Victoria, her heirs and successors, according 
 to law ;" the other two oaths being obsolete. (Ch. Bl., 1 16.) 
 An office holder under the Federal Government must swear 
 to " support and defend the Constitution of the United States 
 against all enemies foreign and domestic," and "bear true 
 faith and allegianceto the same," etc. U. S. R. S., 2d ed., § 
 I7S7- 
 
 From whom allegiance to a country is due by Com- 
 mon Law, though no oath be taken. — From all persons 
 
 born within the realm, so long as they live, and from aliens so 
 long as they may be therein, since they may claim the protec- 
 tion of the government, i Bl. Com., 370. 
 
 Difference between natural and local allegiance.— 
 
 Natural allegiance is that owed by a natural-born subject in 
 all his wanderings, to the country of his birth. Local, is that 
 due from an ahen while within the dominions, i Bl. Com., 
 37°- 
 
 Doctrine of inalienable allegiance. — This is the Com- 
 mon Law doctrine that one cannot, without the consent of his 
 sovereign, shake off his allegiance, although he become natur- 
 alized elsewhere. 2 Kent Com., 42. 
 
 Right of an alien to acquire and hold lands by 
 purchase. — At Common Law, he thus may take them and 
 4iold against all but the State, which may defeat his title by a 
 proceeding called "inquest of office." (2 Kent Com., 54.) 
 The right of defeasance by the State follows the land even 
 into the hands of a citizen to whom he sells it, but statutes 
 remedial or preventative of such defects are sometimes enacted. 
 
27 
 
 By descenti — He might not do so at Common Law, nor 
 might title by descent be traced through an alien. Upon the 
 death of an alien any land he might be holding by purchase 
 vested in the State without need of an inquest of office. 2 
 Kent Com., 54, 61. 
 
 meaning of word "purchase" in this connection!— 
 
 It comprehends grant, devise and all methods of acquir- 
 ing land other than descent. (2 Wash. Real Prop., 401 ; Ch. 
 Bl., 116.) The modes of taking land by operation of law 
 other than descent proper, such as dower and curtesy, are, in 
 this case regarded as descent. 2 Kent Com., 53. 
 
 Nature of an « inquest of office" or "office found."— 
 An inquest of office is a proceeding taken on behalf of the 
 State, to establish the title thereof to certain property; for 
 instance, real estate in the possession of an alien. When the 
 inquisition is accomplished, it becomes "office found." In New 
 York the Attorney- General may bring a proceeding to recover 
 property thus escheating to the State. 
 
 Modern statutory changes as to an alien's right to 
 acquire and hold a valid title to land.— In New York, 
 
 aliens may take by purchase or descent, but a resident male 
 alien can hold, of right, against the State, only if he declares 
 his intention to become a citizen and does so within six years. 
 (See R. S. 9th ed. pp. 1784-7, 1982-6, 2068-9, 2°73~7> 2908 ) 
 An alien's right to acquire aud hold personal pro- 
 
 perty< — This he may do freely, and may transmit it by 
 bequest or intestacy. (2 Kent Com., 62.) Its distribution 
 after his death is governed by the law of his domicile, which 
 may be in one country while his citizenship remains in 
 another. 
 
 The various principles of law we have stated regarding 
 aliens apply to them when they are friends, but when they are 
 citizens of a country at war with this one other rules may 
 govern. 
 
 Political disabilities of aliens.— In the United States 
 they are generally prohibited firom voting or holding office. 
 
 Rule as to whether the children of citizens are them- 
 selves citizens when such children are born abroad.— 
 
 Foreign-bom sons of citizen fathers are themselves citizens if 
 their fathers have ever resided in the United States. (U. S. 
 R. S., 2d ed.. § 1993.) Even at Common Law the foreign-bom 
 children of ambassadors were citizens, i Bl. Com., 373. 
 
 Who is a denizen. — An alien who has received letters 
 patent to make him an English subject, (i Bl. Com., 374.) 
 The word is also used as including all subjects. Denization 
 is an old name for naturalization, which in Blackstone's time 
 conferred the privileges of a native but in part. 
 
28 
 
 The nature and object of naturalization lawsi— To 
 
 confer citizenship, with most of its privileges, upon resident 
 foreigners who will comply with the prescribed terms. 
 
 Where authority resides in this country to pass such 
 lawsi — It is given by the United States Constitution to Con- 
 gress only. To the States is delegated power to make subor- 
 dinate rules regulating the formalities in their courts. 
 
 Different steps to be taken, in the United States, 
 to become naturalized, — (i) The alien, if of age, must, two 
 years previous to his application, declare his intention to 
 become a citizen, before a Federal, State or Territorial court. 
 {2) He shall, at the time of his application, take oath to sup- 
 port the U. S. Constitution and to renounce foreign allegiance. 
 (3) He must prove residence in the U. S. for five years previ- 
 ous, and in the State where the court is held for one year, 
 and of his good behavior and character meanwhile. (4) He 
 must renounce any hereditary title or order of nobility. The 
 preliminary declaration is not required where an alien comes 
 to this country under eighteen years of age. (U. S. R. S., 2d. ed. 
 § 2165 et seq.) Resident minor children of aliens acquire 
 citizenship when the fathers do. (§ 2172.) A woman entitled 
 to naturalization becomes a citizen if she marries a citizefl. 
 
 (§ 1994-) 
 
 What rights and privileges naturalized citizens pos- 
 sess ; their political disabilities. — They possess substanti- 
 ally all except elegibility to the office of President or Vice- 
 President of the United States, orGovernor, etc., in some States. 
 In New York an alien may be Governor. 2 Kent Com., 65; 
 Ch. Bl., [24. 
 
 Meaning of the word citizen. — Any person born or 
 naturalized in the United States and subject to the jurisdic- 
 tion thereof. (U, S. Const. Amend., Art. 14.) It is not a 
 right but a condition, or status, and is irrespective of age or 
 sex. Indians untaxed are not citizens but may become such 
 by assuming lands in severalty, and civilization. Ch. Bl., 125. 
 
 Whether it imports the right to vote. — It does not. 
 
 Meaning of expatriation. — The voluntary abandoning 
 of one's country and becoming the citizen or subject of 
 another. Bouv. L. D. 
 
 Whether this is to be deemed a natural and inherent 
 right. — It is so declared by a Federal statute ; but with 
 questionable legal truth, for it would conflict with the doctrine 
 of inalienable allegiance. (See Ch. Bl, 126.) 
 
 How provision is wont to be made in modern times 
 for the establishment and maintenance of this privilege. 
 
 — The United States has treaties with various nations, that 
 naturalization and five years' residence in one shall sever the 
 
29 
 
 allegiance to the other, and Great Britain has by statute con- 
 ferred the privilege of expatriation, upon all of her citizens. 
 
 COURTS AND THEIR OFFICERS. 
 
 Difference between courts of record and courts not 
 of recordf — Courts of record are those in which the pro- 
 ceedings are formally recorded as a memorial whose truth can- 
 not, as a rule, be questioned. (3 Bl. Com., 24.) Others, 
 although they may preserve an informal memorandum of their 
 proceedings, are courts not of record. Justices' courts belong 
 to the latter class. 
 
 How an action is bronglit in a court.— One party, the 
 
 plaintiff, complains before the court of an injury done, and 
 another, the defendant, is called upon to make satisfaction for 
 it. (3 Bl. Com., 25.) Much of this proceeding, is, in reality, 
 carried on outside of the court-room, by the service of 
 papers. 
 
 Functions of the judge upon a trial. — To examine into 
 the truth of the matter and, if any injury appears to have been 
 done, to ascertain ind by the officers of the court apply the 
 remedy. (3 Bl. Com., 25.) The province of the judge, under 
 the Common Law system, is to determine, in general, only 
 questions of law, the truth of facts in dispute being left to the 
 jury, under his instruction. 
 
 Functions of an attorney or solicitor, by the English 
 law. — He is one who acts in the place, stead, or turn of 
 another, to manage his affairs of law. (3 Bl. Com., 25.) 
 Originally " solicitor '' denoted one who performed this office 
 in the court of Chancery, and " proctor " one in a court of Ad- 
 miralty or an Ecclesiastical court ; " attorney " being used in 
 Common Law courts. Bouv. L. D., " attorney." 
 
 Of a barrister. — He is a lawyer of higher grade than an 
 attorney, his duty being to plead causes at the bar. Together 
 with sergeants, an office of the same nature and still higher 
 rank, barristers were included in the class, " advocates," or 
 " counsel." 3 Bl. Com., 26. 
 
 Rule in this country. — The functions of attorney and 
 counselor, the latter corresponding to barrister, are usually 
 combined. In New Jersey, however, a lawyer is not ad- 
 mitted as a counselor in the higher courts until after three 
 years standing as an attorney. 
 
 Rights of solicitors and barristers to sue for the value 
 
 of their services. — Only the former might do so, the fees of 
 the latter being considered honorary. 
 
30 
 
 Rule in this COUntryt^Like English solicitors they may 
 recover either a stipulal ed amount, or if there be none, the rea- 
 sonable value of their services, upon implied contract. N. Y. 
 Code Civ. Pro. § 66. 
 
 For wliat acts an attorney will be liable to his 
 client in an action for damagesi — For want of an average 
 degree of learning and skill in his profession or of reasonable 
 care and dihgence in their exercise. (Cooley on Torts, 2d ed., 
 ♦649.) He must also keep his client's secrets. 
 
 What was the <<M'^ittena-Gemote" in Saxon timesi— 
 
 A general national council and superior court of justice, secu- 
 lar and ecclesiastical combined, which assembled annually or 
 oftener. 3 Bl. Com., 37. 
 
 The "Anla Regis" in later English history • — A court 
 established by William the Conqueror, who feared the IVi^- 
 tena-gemote for its parliamentary character. It was composed 
 of the high officers of the kingdom, presided over by the Chief 
 Justiciar, who was also principal minister of State. It had 
 jurisdiction over secular questions, civil, criminal, and of the 
 revenue. 3 Bl. Com., 37. 
 
 How the different English courts grew out of the 
 
 ''Aula RegiSt" — The Aula Regis was accustomed to follow the 
 king's wanderings. In Magna Charta, John guaranteed that 
 a court should be held in a definite place, and, consequently, 
 the court of Common Pleas was established in Westminster 
 Hall. The power of the Aula Regis was thus weakened, and 
 about the time of Edward I. it was broken up into the court 
 of King's Bench, the Exchequer, etc. 3 Bl. Com., 38. 
 
 Original jurisdiction of the court of King's Bench. 
 
 — The court of King's Bench (so called because the king 
 himself used inactively to sit there) was the remnant of Aula 
 Regis, the supreme court of Common Law and was held, in 
 Blackstone's time, by the Lord Chief Justice of the King's 
 Bench, with three other justices. It comprised a crown side, 
 which entertained criminal causes, and a plea side, civil cases 
 savoring of a criminal nature. It also admitted any action (other 
 than real) brought by a person who might be in its custody. 
 It constituted, as well, an appellate court for the Common 
 Pleas and other inferior courts. 3 Bl. Com., 41. 
 
 Of the court of Exchequer.— This was so called from a 
 checked table-cloth in the court room. It had an Equity side 
 and a Common Law side and adjudicated questions of the 
 revenue or suits to which a debtor to the government was a 
 party. Its judges, when Blackstone wrote, were a chief, and 
 three other barons, and on the Equity side the Lord Treasurer 
 and the Chancellor of the Exchequer also. 3 Bl. Com., 43. 
 
How the jurisdiction of the courts was extended as 
 
 respects civil actions. — It came to be allowed that any one 
 might seek the King's Bench under the fiction that he was 
 within its custody, or the Exchequer by assuming that he was 
 the king's debtor. In the latter case he would allege in his 
 writ that the defendant had done him damage by which he was 
 the less [quo minus) able to pay ; hence called the writ of que 
 minus. 3 Bl. Com., 42, 45. 
 
 Jurisdiction of the court of Common Pleas.— It ad- 
 judicated in civil Common Law actions, real or personal, be- 
 tween subject and subject. It was held by a chief justice and 
 three others. 3 Bl. Com., 39. 
 
 modern changes in regard to these courts.— The num- 
 ber of justices in each was increased to six, and appeals came 
 to be taken to the Exchequer Chamber, instead of the King's 
 Bench. (Ch. Bl., 635.) The later changes will be considered 
 hereafter. 
 
 What was the court of Exchequer Chamber.— Such a 
 
 court at one time existed by slat. 31 Edw. III.,ch. 12, to deter- 
 mine causes upon writs of error froni the Common Law side 
 of the Court of the Exchequer; but a new one was subse- 
 quently erected, as an appellate tribunal for the King's Bench, 
 and finally from all three superior Com. Law courts, the judges 
 of any two of these sitting while an appeal from the other was 
 heard. Writs of error might be taken from here to the House 
 of Lords. Ch. Bl., 638, 647. 
 
 Jurisdiction of the House of Lords as a court. — Upon 
 
 the dissolution of Aula Regis this became, and still is, the ap- 
 pellate court of last resort for the kingdom. Those of its mem- 
 bers who have held high judicial positions and sit as judges 
 are presided over by the Lord Chancellor. (3 Bl. Com., 56; 
 Bouv. L. D.) It still hears final appeals from the English, 
 Scotch and Irish courts. 
 
 Court of Chancery, its origin and the special nature 
 
 of its jurisdiction. — When Aula Regis was broken up, the 
 Lord Chancellor, keeper of the great seal and the king's con- 
 science, retained certain Common Law judicial functions. 
 These included the cancelling of erroneous royal patents, try- 
 ing personal actions of court officials, issuing writs returnable 
 in other courts, etc. The stat. of Westminster 2 (13 Edw. I), 
 ch. 24, empowered him to frame new writs to meet fresh 
 states of facts. As immediate representative of the king he 
 administered also a discretionary justice, intended to atone 
 for the narrowness of the Common Law rules. His extraordi- 
 nary powers finally assumed a definite shape and crystallized in- 
 to the system of Equily Jurisprudence. One of the most impor- 
 tant elements of this system developed by the Court of Chan- 
 
32 
 
 eery was the law of uses and trusts. 3 Bl. Com., 46 ; i Story on 
 Equity, ch. 2. 
 
 Jurisdiction of tlie Privy CounciL — It is a court of last 
 resort, to hear appeals from ecclesiastical and colonial courts. 
 In it sit a Lord President, the Lord Chief Justice of England, 
 the Lord Chancellor, and others. Ch. Bl., 648. 
 
 Modern organization of tlie English system of courts. 
 — In 1875 it was reconstructed as the " Supreme Court of Ju- 
 dicature," comprising "Her Majesty's Court of Appeal," next 
 below the House of Lords, and " Her Majesty's High Court 
 of Justice," in which the old superior courts were embodied 
 as divisions. Of these divisions there were five : the Chancery ; 
 Queen's Bench; Common Pleas; Exchequer; Probate, Di- 
 vorce and Admiralty. Subsequently the Common Pleas and 
 Exchequer have been absorbed by the other Common Law 
 division, the Queen's Bench. Equitable rules govern, and 
 equitable relief may now be obtained, in any of the divisions. 
 Ch. BL, 651. 
 
 Courts of "assize" and ''nisi prins." How com- 
 posed. Wliere tlie sessions are held. — ^Judicial circuits 
 
 throughout the kingdom were traversed periodically, each by 
 two or more commissioners from the higher courts. They sat 
 by virtue of five authorities: (i) Of the peace; (2) Oyer and 
 lerminerj (3) general jail-delivery, by all of which they heard 
 criminal cases ; (4) Assize, in which the justices held court to- 
 gether with associates from the county, to determine landed 
 disputes; (5) Nisi prius. 3 Bl. Com., 57. 
 
 What is a "nisi prius" trial. — It was the trial of ques- 
 tions of fact upon writs issuing out of the superior courts, in 
 Westminster Hall, and then ripe for jury in the county. (3 
 Bl. Com., 51.) In this country ^' nisi prius" denotes those 
 terms of court where jury trials are held. Bouv. L. D. 
 
 Origin of the name. — The writs were framed so as to 
 make the cases triable at Westminster Hall, at a certain time, 
 unless before (nisi prius) that time the judges of assize should 
 come into the county, which always happened. 3 Bl. Com., 
 59- 
 
 What are the different Federal Courts in this coun- 
 try. A general outline of their jurisdiction.— (i) The 
 District Courts, one or more generally in each State, and pre- 
 sided over by a single judge. Their jurisdiction includes 
 postal, and various other matters of exclusively Federal con- 
 trol, notably admiralty cases ; they have criminal jurisdiction 
 over most offences. (2) The Circuit Courts, held in each district 
 by a Supreme Court justice — hence there are nine circuits- 
 one pf the special Circuit Court judges pr the District Court 
 judge. They have original legal and equitable jurisdictipn pver 
 
33 
 
 matters in which more than $2,000 is in dispute arising under, 
 the Federal Constitution, laws or treaties or between citizens of 
 different States or between citizens and foreigners, etc. Appeals 
 formerly lay directly from here to the Supreme Court, but to 
 relieve that of a part of its burdens, Circuit Courts of Appeal 
 have been formed. They are held in each Circuit ; the jud- 
 ges of the Supreme, Circuit, and District Courts are compe- 
 tent to sit, except those before whom the case was originally 
 tried ; two constituting a quorum. These are courts of last 
 resort for certain sorts of questions unless the Supreme Court 
 chooses to remove them to itself Prize, capital, jurisdictional 
 and certain constitutional cases, are appealable directly to the 
 Supreme Court. Among the functions of the latter is that of 
 hearing appeals from Territorial courts, and it has original 
 jurisdiction in cases where a State or a pubUc minister is a 
 party. Six of its justices form a quorum. 
 
34 
 
 PERSONAL PROPERTY. 
 
 NATURE OF PERSONAL PROPERTY AND 
 ITS VARIOUS KiNDS. 
 
 General difference between real property and per^ 
 SOnal property. — Real property is permanent as to time and 
 fixed as to place and descends to the heirs. Personal pro- 
 perty is transient, generally movable and, by intestacy, goes to 
 the executors or administrators for the distributees. Histori- 
 cally, a real action lay in case of the unlawful withholding of 
 real property, and the realthing was recoverable ; for personal 
 property generally damages were recovered instead. At 
 Common Law real property could not be taken for debt but 
 personal property might be. Lect. by Prof A. G. Reeves, 
 N. Y. Law Sch. 
 
 Relative importance attached to these two kinds of 
 property in early English history. — The English Common 
 Law concerned itself principally with real. The amount of per- 
 sonalty then owned was trifling and it was viewed with contempt. 
 A forfeiture of all of it that a man possessed for a small offence 
 was not uncommon. (2 Bl. Com., 384.) The deficiencies of 
 the Common Law have occasioned the adoption, to a consider- 
 able extent, of the Civil Law rules regarding it. 
 
 In modern times. — Personal property is now regarded as 
 of little or no less importance than real. 
 
 Meaning of the word, chattels. — Practically synony- 
 mous with " Personal property." It includes any species of 
 property less than a freehold in land. A. & E, Ency. of L. 
 "Chattel"; Bouv. L. D. 
 
 Origin of this name.— From catalla, Latin, signifying 
 beasts of husbandry, but applied also to movables in general. 
 2 Bl. Com., 385. 
 Difference between a chattel real and chattels personal. 
 
 Illustrations of each. — The former are such as concern, or 
 savor of the realty; e. g., leases for years, which though im- 
 movable as to place, lack the element of permanence necessary 
 to real property, although they are commonly treated of in 
 that connection. Chattels personal are things movable, such 
 as animals, household goods, money and notes. (2 Bl. Com., 
 386.) By the New York statutory classification, estates for 
 years, and for the life of another after the death of the grantee 
 are " chattels real " ; those at will and those at suffi-anccj 
 " chattel interests," N. Y. R. S. 9th ed., p. 1789. 
 
35 
 
 Nature of a " chose " in action> — A thing to which one 
 possesses the right but which is not in possession, or occupa- 
 tion. I Bl. Com., 388. 
 
 Different kinds of << clioses " in action evidenced by 
 
 a written instrument! — Those expressed in a bond, note, 
 or other written contract. 
 
 Different kinds not so evidenced. Illustrations of 
 "clioses" in action arising in contract.— The right to the 
 
 performance of an oral express contract, e. g., to pay for goods 
 delivered ; a contract implied in fact, e. g., the foregoing if 
 tacitly entered into ; or a quasi contract, implied in law, e, g., the 
 repayment of money received for a consideration which has 
 fafied. 
 
 Arising in tort. — Damages for an injury to property, such 
 as conversion of goods; or for a personal injury, such as 
 libel. 
 
 PROPERTY IN CHATTELS PERSONAL. 
 What is an absolute propei-ty in chattels.— Where a 
 
 man solely and exclusively has the right and also the occupa- 
 tion of them. 2 Bl. Com., 388. 
 
 A qualified property, or special or limited property, is 
 one which is not in its nature absolute or permanent, but 
 which may subsist sometimes and not at other times, or does 
 not exist for all purposes. 
 
 In what chattels has a man an absolute property.— 
 
 In inanimate objects, such as goods or money ; in vegetable 
 productions, which become chattels when severed from the 
 ground; and in certain animals. 2 Bl. Com., 389. (Perhaps, 
 also, it can be said that chases in action are subjects of " abso- 
 lute property.") 
 
 A qualified property.— In many things, such as wild ani- 
 mals captured, light, air, water, and chattels hired or bor- 
 rowed ; as will be explained hereafter. 
 
 Rule as to animals "mansuetae naturae."— In these 
 
 an absolute property may be had. 2 Bl. Com., 390. 
 
 What animals are of this description.— Domestic ones, 
 
 such as horses, cattle, sheep or poultry. These are now of a 
 domestic nature (domitcR natures), but primitively must have 
 been of a wild disposition, and hence they are called "tamed" 
 (mansueta), as being accustomed to the hand. 2 Bl. Com., 
 390. 
 
 Rale as to animals " ferae naturae." What animals 
 
 are of this description.— Animals " of a wild nature " inay, 
 by taming or confining, be made the subject of a qualified. 
 
36 
 
 property ; <?. g., deer in a park, doves in a dove-house, fish in 
 a private pond. 2 Bl. Com., 391 ; 2 Kent Com., 348. 
 
 To steal such animals, if fit for food, was larceny; but 
 dogs, cats, apes, parrots and other creatures, kept for whim or 
 fancy, were, at Common Law, considered as having no in- 
 trinsic value, and hence were not subject to larceny, although 
 their conversion might be ground for a civil action. Under 
 the New York Penal Code it is held larceny to steal a dog. 
 Ch. Bl , 515; Bouv. L. D., "dog"; 86 N. Y., 365. 
 
 How long tbe property in animals ** ferse naturae " 
 
 C0ntinU6Si — Until they return to their natural freedom. Ibid. 
 
 Doctrine of " animnm revertendi." — In case the ani- 
 mals are accustomed to return home after roaming at large, 
 the property in them may be retained when they wander oft 
 temporarily; e. g., when a hawk flies in his master's presence, 
 or pigeons at a distance from home. 2 Bl. Com., 392. 
 
 How property in bees is acquired. — By hiving them. 
 2 Kent, Com., 350. 
 
 If they desert their hive, how long does the own- 
 er's property in them COntinnCt — So long as their keeper 
 holds them in sight with power to pursue. 2 Bl. Com., 393. 
 
 Nature of the property which a man has in ani- 
 mals, " ratione impoteutise ; " L e., " by reason of in- 
 ability." Young birds or other wild animals bred on a man's 
 land are his property so long as they are unable to leave. 2 
 Bl. Com., 394. 
 
 The animals "propter pririlegium; " i. e., "by rea- 
 son of privilege." Certain persons, to the exclusion of others, 
 may have the privilege of killing game on certain lands and 
 thus possess a transient property in the animals thereon, until 
 they wander elsewhere. 2 Bl. Com., 394. 
 
 What property a man has in the natural elements, 
 
 light, air and water. He may have a right to their en- 
 joyment or use as they pass through his premises, although 
 not an absolute property while they are thus in a free state. 
 (2 Bl. Com., 395). In England this qualified property may 
 be acquired by prescription, (i. <?., the uninterrupted enjo)'- 
 ment thereof over one's land for twenty years) but as to light 
 and air the doctrine has been discarded in this country. 
 Cooley on Torts, 2d ed., *69o. 
 
 How this right of property may be violated or in- 
 
 l^ingedt— By obstructing the light; corrupting the air, as by 
 gases from a chemical factory ; and diminishing materially or 
 fpoUuting at all the stream of water. 
 
 What right of property is there in a dead body.— 
 
 There is none in a strict sense, although some States recognize 
 ■A quasi property, in the next of kin, for purposes of interment 
 
37 
 
 and protection. But the stealing or unlawful exhuming of a 
 corpse was at Common Law, and is under N. Y. statutes, 
 criminally punishable. Ch. Bl., 537 ; I. Schouler on Personal 
 Property, 3d ed., § 52. 
 
 How a qualified property arises from the bailment 
 
 of CbattelSi — The bailee who is the borrower, hirer or de- 
 positary of the chattel, has a special or qualified property 
 therein, which carries the right to possession or enjoyment as 
 against all persons but the bailor. By agreement, for a con- 
 sideration, even the bailor may forego the right to possession 
 during a certain time, as in the case of hiring, but he retains 
 the general or ultimate property. 
 
 Rights of bailor and bailee, respectively, to sue 
 for a trespass to, or conversion of chattels, or a 
 
 permanent iiynry theretOi — Trespass and conversion are 
 injuries to the present possessory right, and therefore, if such 
 injuries be done by a third party, the bailee may sue, since he 
 has the actual possession, with the right to possession as 
 against strangers, at least ; or the bailor instead might do so 
 if he retained the right to possession, but they could not both 
 bring such actions. (The same principles apply to the action 
 of replevin.) If the bailor had not the right to immediate poss- 
 ession, yet he might sue for the permanent injury, if any, although 
 an action for the injury to the immediate possesion had already 
 been brought by the bailee. (Ch. BL, 577.) The bailor and 
 bailee are mutually accountable for the infringement of each 
 other's rights, and thus a person who has let a chattel to an- 
 other for hire might commit larceny by retaking it. 10 Wend., 
 165. 
 
 LIFE INTEREST IN CHATTELS. 
 
 When chattels are limited to A for life, remainder to 
 B, what is the nature and validity of A's interest; of B's 
 interesti — Anciently this could not validly be done, but a 
 gift to A for life carried an absolute interest. Afterward, it 
 was allowed to bequeath the use \.o A for life, the property 
 right meanwhile remaining in the testator's executors, with 
 the remainder to B. Finally a gift of the legal property to A 
 with remainder to B was sustainable. A's interest is one in 
 immediate possession, B's one in expectancy. 2 Bl. Com., 
 398; 2 Kent Com., 352; 1 Schouler on Per. Prop., § 139. 
 
 In what instruments such a limitation may be made. 
 
 — By will, and later by deed, at least by a deed of trust. 
 Ibid. 
 
38 
 
 How A must use the propertyi— As in trust, and 
 without abuse, loss or destruction, although ordinary wear and 
 damage are allowed. 2 Kent Com., 354; 64 N. Y., 278; i 
 Sch. Per. Prop., § 141. 
 
 Effect of such a limitatiou if the property be such that 
 its use consists in its consumption.— The gift for life, of 
 such property as corn, hay, or fruits, carries the absolute title 
 without limitation over. 2 Kent Com., 353. 
 
 Effects of limiting an estate-tail in chattels.— The 
 element of entailment does not take efiect, but the property 
 is received absolutely, z Bl. Com., 398. 
 
 JOINT OWNERSHIP OF CHATTELS. 
 Difference between joint ownership and ownership in 
 
 common. — Owners in common have each an undivided share ; 
 joint owners each own the whole as well as such share. At 
 death the interest of an owner in common passes to his personal 
 representatives, but in joint ownership the entire property is 
 left in the survivor. 2 Kent Com., 350. Williams on Per- 
 sonal Property, 232. 
 
 How may either be created. — By will or conveyance 
 
 infer vivos. Doubtless one or the other might be, also, by 
 act of law. 
 
 Which kind of ownership is the more favored in 
 modern times. — That in common. Formerly it was pre- 
 sumed that an ownership by two or more persons, not part- 
 ners in trade or agriculture, was joint, unless expressly stated 
 otherwise. But the presumption in the United States is now 
 generally of ownership in common. 2 Kent Com., 350; 
 Perry on Trusts, § 136. 
 
 Effect of limiting personal property to two or more 
 co-trustees, co-executors, etc. — To expedite the fulfillment 
 of their offices, the doctrine of joint ownership and survivor- 
 ship, is still applied to them. Perry on Trusts, § 136. 
 
 Kinds of personal property that may be owned jointly 
 
 or in common. — Any kind that may be owned at all, whether 
 in possession or in action. 
 
 Effect on the title if one joint owner disposes of his 
 interest. — The purchaser becomes an owner in common with 
 the other owner, i Sch. Per. Prop., § 160. 
 
 If a joint owner or owner in common dies. — The in- 
 terest of the joint owner remains in the surviving owners ; that 
 of the owner in common passes to his personal representatives. 
 
39 
 
 Right of action by oue co-owner against the other 
 because the latter retains possession of the chattel. — 
 
 Since the possession of one is the possession of the other, an 
 action for conversion is not allowable unless there be a dis- 
 tinctly hostile act on the part of the one holding the chattel, 
 which is the more easily shown if he appropriates more than 
 his share of some divisable article such as wheat (i Sch. Per. 
 Prop., § 165); neither can one co-owner replevy the property 
 from the other. 13 N. Y., 173. 
 
 Because the latter sells or destroys the chattel.— This 
 is actionable as a conversion. 1 Sch. Per. Prop., § 165. 
 
 Who must sue for iiyuries to chattel by third 
 
 persons. — In general, the joint or common owners must 
 unite as plaintiffs. Ibid, % 164. 
 
 How partition of the property may be effected.— There 
 
 is no Common Law action for the purpose, but it may be 
 done by oral agreement, and actual division either of the 
 chattel itself or of the proceeds after sale. But by suit in 
 Equity any co-owner may obtain partition ; which is effected 
 preferably in specie, but if necessary by sale. (i Sch. Per. 
 Prop., § 1 66a.) Where the property is uniform and severable 
 one co-owner may remove his share. Ch. BL, 521. 
 
 TITLE BY OCCUPANCY. 
 
 This denotes the taking possession of, with intent to 
 appropriate, what has no present owner, but which had an 
 earlier existence. (2 Sch. Per. Prop., § 6.) 
 
 Title to property captured in war, Common Law 
 doctrine. — It belonged to the captor. 2 Kent Com., 356. 
 
 Modern rule. — To the sovereign, and only to individual 
 captors so far as he permits. (2 Kent Com., 356.) This 
 allowance may be granted through condemnation proceedings 
 in a prize court. 
 
 Title to abandoned property.— It is the finder's. 2 Kent 
 Com., 356. 
 
 To lost property. — The finder may claim it as against 
 everyone but the true owner. {Ibid.) But where a purse was 
 left on a shop counter, the owner of the shop had a right 
 superior to the finder's ; the article having been " left," not 
 "lost." (ii Allen, 548.) The case was different from that of 
 a finding upon the shop floor, for instance. 
 
 Rights of a finder of lost property as against the 
 
 owner. — Some say that he is entitled to recompense for 
 expense and labor reasonably expended in preserving it and in 
 
40 
 
 ascertaining the true owner. (2 Sch., Per. Prop., §§ 14, 15.) 
 But this is denied by other authorities. Prof. T. W. Dwight's 
 lect., Colum. Law Sch. 
 
 As against third persons. His right to sue for in- 
 juries to the property^ — He has a title which, though 
 rather a trusteeship than an ownership, is sufficient to sustain 
 an action of conversion. (2 Kent Com., 356; 2 Sch. Per. Prop., 
 § 16.) To steal from him would be larceny. 
 
 Title to animals " ferae naturae." — They belong 
 [qualifiedly, of course] to their captor, but subject to such re- 
 straints as the ownership of the soil imposes. (2 Sch. Per. Prop., 
 §17.) In England "royal fish" and animals classed as 
 " game " might be taken only by certain individuals, as a 
 privilege royally granted. 2 Bl. Com., 403. 
 
 To treasure-trove, i- e., money or goods found hidden in 
 the earth. By early Common Law, they perhaps belonged to 
 the owner of the soil; but, according to Lord Coke, to the 
 finder, if the original owner did not claim them. Later by 
 statute they were given to the King, if unclaimed, and in this 
 country may theoretically belong to the State. 2 Kent Com., 
 357; 2 Sch. Per. Prop., § 10; N. Y. Penal Code, §482. 
 
 To WreciiS, i. e., goods cast up by the sea. In England 
 they belonged to the King and in this country often to 
 the State government, subject to the claims of the owner within 
 one year and, perhaps, salvage and expenses to the finder. 
 Substantially similar principles govern under the Federal laws. 
 N. Y. R. S„ 9th ed., 762, ,?^j,?^.y U. S. R. S. 2ded.,§ 3755. 
 
 To estrays, i. e., domestic animals found wandering at 
 large. They usually belong to the public authorities, subject 
 to redemption by the owner upon payment of expenses of 
 impounding and keeping, and if he do not appear are sold for 
 the benefit of the town poor fund, etc. 2 Kent Com., 359 ; 
 2 Sch. Per. Prop., § 17; N. Y. R. S., 9th ed., p. 760. 
 
 To emblements, i. e., The profits of unharvested crops of 
 annual cultivation. When severed from the land these are 
 personal property, simply. Before severance they generally 
 belong to the tenant of the land, but if this changes posses- 
 sion while they are standing, special rules apply. Where an 
 estate terminates unexpectedly to the tenant, viz., one for life 
 or at the will of the landlord, the tenant or his representatives 
 inay enter and harvest the crops, but a lessee for a definite 
 time forfeits his right to them. Emblements go to the per- 
 sonal representatives of a decedent, rather than to the heirs. 
 N. Y. Code Civ. Pro., § 2712. 
 
 Meaning of these terms.— Already explained. It may 
 be added that waifs, i. e., property, waived or cast away, by a 
 thief, formerly belonged to the King, even as against the true 
 
41 
 
 owner. Under American law they would belong to the State 
 only if the true owner did not appear, and this right would not, 
 perhaps, in practice, be enforced against the finder. 2 Kent 
 Com., 358; N. Y. Penal Code, §§ 482, 710. 
 
 TITLE BY ACCESSION. 
 
 Meaning of this word, accession! — The increase of prop- 
 erty, naturally, as by the growth of vegetables or the birth of 
 young animals; or artificially, as by the embroidery of cloth or 
 the manufacture of wheat into bread. 2 Bl. Com., 404. 
 
 Who has the title of the increase of animals by the 
 
 birth of jonng. — Usually the owner of the mother. 2 Bl. 
 Com., 390. 
 
 Rule if the animals are in the possession of a hirer 
 
 when the young are borUi — The young belong to the hirer. 
 2 Kent Com., 361; 12 Johns., 314. 
 
 Title to the growth of vegetables. — In their owner, viz., 
 generally the tenant of the soil. 
 
 To embroidery worked on another's cloth.— In the 
 
 owner of the cloth. 2 Bl. Com., 404. 
 
 To wood or metal fashioned into vessels or utensils. — 
 
 In the owner of the materials. Jbid. 
 
 To an article to which valuable repairs have been 
 added by another than the owner. — In the owner of the 
 
 article. 2 Denio, 628. 
 
 Effect of a change in species, as, e. g., of corn into 
 whiskey, (a) if the change be made by a thief or wrong- 
 ful taker of the corn. — The title remains in the owner of 
 the corn. 3 N. Y., 379. 
 
 (bj If the change be made by an innocent purchaser 
 
 from the wrong doer. — The property is his [Ibid.) but he 
 must make satisfaction for the materials to their original 
 owner. 2 Bl. Com., 404. 
 
 Effect upon title if a change of form but not of species 
 be made, as, e. g., of timber into shingles, if the change 
 be made (a) by a wrongful taker of the timber.— The 
 
 original owner may have the shingles if he can prove their 
 identity. 5 Johns, 349. 
 
 By an innocent purchaser from the wrong-doer.— The 
 
 question is unsettled, and conservative authorities might say 
 that the property is in the original owner. (3 N. Y., 379.) 
 But some decisions hold, where the value of the product is 
 many times as great as that of the materialSj that the title 
 passes to the manufacturer. 22 Mich., 311; 2 Sch., Per. 
 Prop., § s(>- 
 
42 
 
 TITLE BY CONFUSION. 
 
 JMeauing of the word confusioiii— Where the goods of 
 two persons are so mingled that the several portions can no 
 longer be distinguished. 2 Bl. Com., 405. 
 
 General rule as to the effect of confusion of goods on 
 
 titlCi — They all belong to the party whose original dominion 
 has been invaded. 2 Bl. Com., 405. 
 
 Effect, if the goods of the different owners are dis- 
 
 tinguishabiet — No change of property takes place. It has also 
 been said that if the goods are of equal value, such as flour of 
 the same quality, the injured party can take only his share by 
 measurement. 2 Kent Com., 365. 
 
 If the admixture be made by consent, or innocently, 
 
 or by accident. — if by agreement or inevitable accident, the 
 owners hold in common ; and if through the unintentional 
 error of one of them, he will be protected as far as the circum- 
 stances permit. 2 Sch. Per. Prop., § 45-51. 
 
 TITLE BY INTELLECTUAL LABOR. 
 
 I.— Literary Property, Copyriglit. 
 To what extent the Common Law protects the right of 
 
 literary property^ — The modem Common Law, at least, 
 does so only until publication. (A. & E. Ency. of L.; Bisp. 
 Eq., § 450.) The Common Law jurisdiction is not taken 
 away by the statutes. Ch. BL, 528. 
 
 In what this right consists. — The prevention of others 
 from making or vending copies of it. 
 
 How this right may be violated.— By piracy, i. <?., the 
 
 unauthorized substantial appropriation of it. Bona fide ex- 
 tracts, quotations, abridgements, etc., are not piracy. Ibid., % 
 452- 
 
 Remedies of the author. — Action at law for damages or 
 suit in equity for an injunction, with, perhaps, an accounting 
 for profits. 
 
 Rule as to whether ownership of ideas can be se?- 
 «red f^om ownership of the manuscripts containing 
 
 them. — It can, as in the case of letters. 
 
 Relative rights of the writer and receiver of let- 
 ters. — The receiver has a property for the purpose of posses- 
 sion, but the right to publish is in the sender and not in the 
 receiver, unless perhaps for the vindication of his character or 
 f 3r purposes of justice. (Bisp. Eq., § 455.) They go to the 
 
43 
 
 receiver's executors in trust for the distributees but not to sell 
 for the payment of debts, and the ideas go to the sender's ex- 
 ecutors for his distributees. 
 
 Right of an artist in his painting. — He has a right to 
 prevent the issuing of copies. 
 
 Of a lecturer in his oral lectnres.— In these he has 
 
 a Common Law property, the protection of which is not lost 
 by their delivery; at least, not if it be before a private audience, 
 as in a class-room. ReUef may be granted, from its publica- 
 tion through a shorthand transcript. 2 Kent Com., 379. 
 
 How the Common Law right of an author in his com- 
 positions may be lost. — By dedication thereof to the pub- 
 lic, e. g., by pubhcation. (Ch. Bl., 529.) 
 
 Rule as to whether one who attends the represen- 
 tation of a dramatic work may reproduce it from mem- 
 ory. — He may, according to the general rule. (4 A. and E. 
 Ency. of L., note to p. 148.) But recent opinion is to the con- 
 trary. (Ch. Bl., 529; 47 N. Y., 532.) 
 
 May copy and take notes, and so reproduce it.— 
 
 He may not. 
 
 Object of statutes of copyright.— To secure to authors 
 the exclusive right of publication of their works for a limited 
 period. The original one was 8 Anne., ch. 19. 2 Bl. Com., 
 407. 
 
 Length of time for which a copyright may be ob- 
 tained in England. — For ten years beyond the life of the 
 author or for forty-two years, whichever is the longer. 
 
 In the United States. — Twenty-eight years, with fourteen 
 years extension allowed to the author, or to his widow or chil- 
 dren. 
 
 General nature of the provisions in statutes of copy- 
 right. — In order to obtain one, a printed copy of the title of 
 the book or other article, or description or model of the work 
 of art, is to be forwarded to the Librarian of Congress, as a 
 preliminary ; on or before the day of publication two copies of 
 the book, etc., shall be mailed to him; and the fact and 
 year of the copyright shall be printed thereupon. Until re- 
 cently only citizens or residents might take out copyrights, but 
 the privilege has been extended to inhabitants of countries 
 where a like one is allowed to ours. 
 
44 
 
 2.— Patents. 
 General object and natnre of the patent laws.— To 
 
 promote the progress of science and useful arts by securing for 
 limited times to inventors the exclusive right to their discov- 
 eries. U. S. Const., Art. i, § 8. 
 
 Provisions of the United States patent laws as to 
 
 what may be patented* — Any new and useful art, machine, 
 manufacture, or composition of matter, or any new and useful 
 improvement thereof, not known or used by others in this 
 country before the present invention, and not patented or pub- 
 lished in print at home or abroad before this invention, or 
 more than two years prior to the application, and not in pub- 
 lic use or on sale for more than two years previous to the 
 application. But the inventor may lose the right to a patent 
 by. "abandonment " of the invention; i. e., acquiescence in its 
 public use. 
 
 Patentability of a proceSSi — It is included under the 
 general term, "useful art." Curtis' Law of Patents, 4th ed., 
 § 15 and note. 
 
 Illnstration. — A process of manufacturing iron in which 
 the impurities are expelled by means of certain vibrating and 
 reciprocating curved surfaces. This is patentable either as a 
 process or as a machine, a.ccoT&vi\g to the manner of statement. 
 Another illustration is the process of vulcanizing India rubber, 
 by raising it to a high temperature when mixed with sulphur 
 and a mineral salt. And this might be made patentable either 
 as a process or as a. product of manufacture. TJz'if./ 9 Wall., 
 788; Ch. Bl., 530. 
 
 Of a machine. — Rightfully patentable wherever a new or 
 ati old effect is produced by a mecanism new in its combina- 
 tions, arrangements, or mode of operation. Curt. Pat., § 20. 
 
 Of a new product of mannfactnre. — it is patentable. 9 
 Wall., 788. 
 
 Of a principle! — Not patentable as an elementary rule or 
 truth in nature ; but when so far carried out and connected 
 with corporeal objects as to become the practical manner of 
 <loing a thing, it is no longer a "principle " but a process, and 
 is patentable. Curt. Pat., § 5. 
 
 Illustration! — The use of the motive power of the elec- 
 tric current for printing intelligible characters at a distance, 
 without limitation as to the intermediate mechanism employed, 
 was held unpatentable. 15 Howard, 62. 
 
 Effect, if an alleged invention would have been 
 obvious to persons skilled in the art to which it relates. 
 — It is unpatentable, not being a product of the inventive 
 faculties. Ch. BL, 530; 102 U. S., 112. 
 
45 
 
 If it simply requires ordinary mechanical skill.— It is 
 
 unpatentable. 113 U. S., 59. 
 
 If it simply substitutes a known equivalent.— it is un- 
 patentable. 103 U. S., 797. 
 
 Length of time for which a patent may be obtained 
 in the United States. Seventeen years. U. S. R. S., 2d ed., 
 § 4884. 
 
 TITLE BY FORFEITURE. 
 
 Cases in which a total forfeiture of a man's goods 
 and chattels was occasioned by the English Common 
 Law. — For treason, felony, excusable homicide, outlawry, 
 petit larceny, striking a person in court, and a few other 
 offences. 2 Bl. Com., 421. 
 
 Present English rule. — Only in case of outlawry. 33 & 
 34 Vict., ch. 23. 
 
 General rule in this country as to forfeiture. — Con- 
 gress has the power, not at present exercised, of prescribing 
 forfeiture for life for treason against the U. S. But a law ex- 
 ists providing for life forfeitures of real and personal property 
 for treason against N. Y. State. 
 
 Rule as to the forfeiture of specific property used in 
 
 the commission of specific Ofi«nceS. — For this, frequent pro- 
 vision is made ; e. g., goods illegally offered for sale on Sunday, 
 or horses used in races, with betting. N. Y. Penal Code, §§ 
 270, 352- 
 
 TITLE BY CUSTOM. 
 
 Nature of heir-looms. — They are certain goods and chat- 
 tels which descend to the heir, instead of going to the personal 
 representatives. 2 Bl. Com., 427. 
 
 What things are included under this term by English 
 
 law. — Deer in an authorized park, fish in a pond, the crown 
 jewels, family pictures and other furniture by special custom, 
 coat armor hung up in churches, title deeds and the chests 
 containing them, etc. 2 Bl. Com., 428. 
 
 How far this doctrine exists in American law. — It has 
 hardly an example, although some have maintained that title 
 deeds are such. But one instance may be found in the right 
 of the vendor of land and his heirs to re-enter upon breach of 
 a condition in the deed. Lect. by Prof. A. G. Reeves, N. Y. 
 Law Sch. 
 
 Difference between heir-looms and fixtures.— Fixtures 
 are chattels which owe their anomalous character to their an- 
 
46 
 
 nexation to the realty, actually, or sometimes constructively, 
 and were treated as virtually a part of the same, but this Com- 
 mon Law rule is now so modified that for many purposes they 
 are regarded as personalty, (z Kent Com., 343.) Articles, 
 thus attached to the realty, which would now be called 
 " fixtures " would formerly have been included among " heir- 
 looms " (Ch. Bl., 536) ; so the distinction seems to be, in part, 
 historical. 
 
 But, in brief, heirlooms were family treasures handed down 
 through generations as perquisites of the heir ; while fixtures 
 are improvements and appliances put upon the realty, often 
 for temporary convenience, and whose ownership may give 
 rise to dispute when this changes possession. 
 
 TITLE BY MARRIAGE. 
 
 By Common Law, the husband acquired the absolute 
 property in his wife's chattels in possession, and such of her 
 choses in action as he reduced to possession during her life. 
 After her death he was entitled to the administration of her 
 personal estate and of succession thereto as sole distributee, 
 and could gather in any choses in action still outstanding, but 
 subject now to the payment of her debts. If he died first, the 
 uncollected choses in action remained the wife's, as did also 
 her chattels real not aUened during his lifetime ; and he had 
 no power to will them away. In New York, a wife's prop- 
 erty is absolutely her own. Even at Common Law, a wife 
 was entitled to the apparel and ornaments worn by her, called 
 her paraphernalia. 
 
 TITLE BY JUDGMENT. 
 
 Effect of a judgment for the defendant in an action 
 of trespass or trover, in transferring tlie title in tlie 
 goods to the defendant.— It would establish the right of the 
 defendant to immediate possession, at least, as against the 
 plaintiff. Also, if the judgment had been for \h& plaintiff, the 
 right to the goods would, after satisfaction thereof, have 
 vested in the defendant, since the plaintiff had elected, by 
 bringing such an action rather than replevin, to be awarded 
 damages rather than to have! the chattel returned in specie. 
 The change of title would then relate back to the rime of the 
 conversion ; but the title would not change at all if the recov- 
 ery were merely for the temporary use of the property. 
 Cooley on Torts, 2d ed., "458. 
 
47 
 
 TITLE BY GIFT. 
 
 I . Gifts inter vivos. 
 
 These are gifts not made through the supposed proximity 
 of death as a moving cause. Delivery is essential to a valid 
 gift of either kind both at law and in equity, i Sch. Per. Prop., 
 § 64 ; 2 Kent Com., 438. 
 
 Difference between a gift and a contract.— A gift is a 
 voluntary bestowal ; a contract is an agreement, for a valua- 
 ble consideration, to do or not to do a particular thing. An 
 executed contract resembles a gift, except for the considera- 
 tion. 
 
 What constitntes actnal delivery.— Manual or corporal 
 
 transfer made in fact or reality. ^Anderson's Law Diet.) It 
 is held in some States that, where the chattel is already in the 
 donee's possession, words are sufficient to complete the deliv- 
 ery in a gift inter vivos, but not in one causa mortis. Ch. Bl., 
 548; I Sch. Per. Prop., § 70. 
 
 Symbolical delivery. — A constructive delivery of the 
 article, by an actual delivery of something accepted to repre- 
 sent it, where the former is cumbersome or inaccessible. 
 Black's Law Diet. 
 
 Illustrations! — Of actual delivery : placing a book in a 
 man's hand or coal in his cart. Of symbolical : giving the 
 ke)' of a chest or warehouse ; a warehouse receipt ; or an or- 
 der upon the custodian of an article, which he accepts. Ch. 
 Bl. 547- 
 
 Wbat different forms of personal property may be 
 the subject of a gift. — Goods, choses in action, and, indeed, 
 nearly all personal property. 
 
 Rule as to << choses" in action, as e. g., money on de- 
 posit in a savings bank, bills and notes, etc.— They may 
 
 be given by delivery of the pass-book to the bank, with that 
 intention, or by the transfer of the bill or note; by assign- 
 ment, «tc. Even the deposit of money in a savings bank, for 
 the purpose of constituting oneself a trustee thereof for an- 
 other person, has been held a valid gift, i Sch. Per. Prop., 
 §§ 72, 78; Bouv. L. D. 
 
 Effect of a gift by a man of his own written prom- 
 ise, e. g-' a promissory note or check. This is an incomplete 
 gift and imtil paid, or the check recognized by the bank, is 
 revocable at the donor's pleasure or by his death. Ch. Bl., 
 548- 
 
 Who are incapable of making a valid gift.— As m the 
 
 case of contracts, infancy, want of mental capacity, duress, 
 etc., render the gift void or voidable. (Ch. Bl., 548.) At 
 
Common Law, coverture would do so, but not under the 
 present New York statutes. 
 
 Right of creditors to have gift set aside.— In courts 
 
 of Equity, they may do so if the donor made the gift while 
 their claims were outstanding or with the intention to incur 
 debts which he could not meet. 
 
 Effects of statutes as to fraudulent conveyances.— 
 
 They are generally based upon that of 13 Eliz., ch., 5, 
 which decreed that fraudulent gifts or conveyances of lands or 
 goods, if they may injure creditors, are void, unless made upon 
 good consideration (which is held here to mean valuable con- 
 sideration) and bona fide to a person not having notice of the 
 fraud. A somewhat similar statute, 27 Eliz., ch. 4, provided 
 against frauds upon bona fide purchasers. In either case the 
 transfers are held valid as between the parties. A transfer by 
 one heavily in debt, if without valuable consideration, raises 
 the presumption of intent to defraud creditors. Ch. Bl.,444. 
 
 2. — Gifts causa mortis. 
 Difference betveen gifts of this liind and gifts "inter 
 
 vivos*" — Gifts causa mortis are made because the donor be- 
 lieves himself to be near his end and they are conditional 
 thereupon. 
 
 What effect a revocation of a gift " causa mortis." 
 
 — His survival of the illness, change of mind, or death of the 
 donee before him. Bisph. Eq., § 70. 
 
 What will constitute a sufficient delivery. — One either 
 
 actual or constructive. Ch. Bl., 548. 
 
 What chattels may be the subject of such a gift. — 
 
 Corporeal ones, and most incorporeal ; not, however, a promis- 
 sory note, unaccepted bill or check, or other contract of the 
 donor which is to take effect at or after his death, i Sch. 
 Per. Prop., §§ 147, 148. 
 
 When gift becomes complete.— At the donor's death. 
 
 TITLE BY INSOLVENCY. 
 Difference between bankrupt laws and insolvent 
 
 laws by the former English law. — Bankrupt laws were ap- 
 plicable only to traders. While the bankrupt might be discharged 
 from his debts, the insolvent was only freed from imprisonment 
 for them. 2 Kent Com., 389, 390. 
 
 Difference of meaning usually attached to these ex- 
 pressions in this country. — The old distinction no longer 
 
49 
 
 exists and they are often used interchangeably ; but " bank- 
 ruptcy" is properly applied to the Federal, and "insolvency" 
 to the analogous State laws. 
 
 Where power resides, in this country, to enact bank- 
 rupt lawSi — In Congress, and also, when no conflicting Fed- 
 eral law exists, in the States. But the latter cannot dis- 
 charge debts upon such contracts as are not made since the pas- 
 sage of the law, within the State, or to be paid therein, between 
 its own citizens or suitors subject to State power. They can- 
 not bar an action by a citizen of another State in the courts of 
 another State or the Federal Courts. 2 Kent Com., 390. 
 
 Last bankrupt law, when enacted and when repealed. 
 
 — Enacted, March 2, 1867; repealed, Sept. i, 1878. 
 
 What laws of this kind are now in force. — Insolvency 
 
 laws of the several States. 
 
 (reneral purpose and effect of such laws.— An insolv- 
 ent debtor resident in the State may petition the county court 
 to be discharged from his debts, stating his inability to pay 
 them in full, but willingness to assign his property to be used 
 toward payment. Accompanying the petition is to be a sched- 
 ule of his debts, property, etc., and a written consent from 
 two-thirds, in value, of his creditors. The court must there- 
 upon make an order for creditors to show cause, at a given 
 time and place, why assignment and discharge should not be 
 made. This order must be duly published for a certain num- 
 ber of weeks. The discharge may be contested on the grounds 
 of fraudulently transferring property, etc. If entitled to a dis- 
 charge, an order is made directing the insolvent to execute an 
 assignment of all of his property, except what would be ex- 
 empt from levy upon execution, to trustees nominated by a 
 majority, in value, of the creditors or appointed by the court. 
 After this is done he is to be discharged from liabihty upon his 
 debts, except those to the United States government, or pub- 
 lic funds received by him for New York State, or debts of an 
 interstate nature. Provisions are also made for discharge or 
 exemption of an insolvent from arrest, etc. N. Y. Code Civ. 
 Pro., §§ 2149, ft ^^i- 
 
 Difference between voluntary and involuntary bank- 
 ruptcy. — In the former case the debtor petitions to avail 
 himself of the bankrupt laws, in the latter the creditors insti- 
 tute the proceedings (Bouv. L. D. "Insolvency"). The New 
 York statutes do not provide for the latter kind. 
 
 What are usually declared to be acts of bankruptcy 
 
 or insolvency, i- e., those which afford sufficient ground for 
 involuntary bankruptcy. Under the last Federal bankruptcy 
 law the following, in substance, were for debtors of over $300, 
 so declared : fraudulent concealment or removal of person or 
 
50 
 
 property, transfer of property in fraud of creditors, continued 
 arrest for debt, or a trader's suspension of payment of commer- 
 cial paper for a certain time, etc. U. S. R. S., § s°2i. 
 
 COMPOSITION WITH CREDITORS. 
 
 An agreement made, for a sufficient consideration, between 
 a debtor and creditors by which the latter accept part of 
 their debts in satisfaction of the whole. Bouv. L. D. 
 
 When it may be made orally or by writing not 
 under seali — When it relates to simple contracts, and, 
 perhaps, in New York even contracts under seal. 24 Wend., 
 294; 62 N. Y., 105. 
 
 Wliat is a composition deedt — An instrument under seal 
 by which the composition agreement is effected. 
 
 Wliat constitutes the consideration when a compo- 
 sition is made with several creditors. — The consideration 
 
 for the cancellation of a part of the claim of each is found in 
 the remission by the others. Lawson on Contracts, § 105. 
 With only a single creditor — The agreement is unen- 
 , forceable, for lack of a consideration unless, (1) The debtor 
 does something different from what the creditor has a right to 
 demand ; e. g., pays at a different time or place or in goods, 
 even of much smaller value, instead of the money due. Or, 
 (2) where the contract is wholly executory. (3) At Common 
 Law, where the composition was made under seal, a consid- 
 eration then being conclusively presumed. (4) The creditor 
 may make the debtor a valid gift of the residue. Ibid., § 104. 
 
 EflTect on the validity of a composition deed, if one of 
 the creditors will not enter into the compromise. — it is 
 
 valid unless those who signed did so upon the understanding 
 that he, or that all, should enter it. 3 A. & E. Ency. of L., 
 389- 
 
 Effect of secret arrangements of the debtor with 
 any one of his creditors contrary to the composition. — 
 
 They will render the deed unenforceable. Lawson on Con- 
 tracts, § 300. 
 
 Validity of securities transferred under such a secret 
 
 arrangement. — The transfer is an invalid one, not only as to 
 the excess over the just ratable amount due to the creditor, 
 but in toto. 3 A. & E. Ency. of L., 399. 
 
51 
 
 ASSIGNMENT FOR THE BENEFIT OF 
 CREDITORS. 
 
 It is a voluntary transfer by a debtor, of property, to be 
 held in trust for the payment of his debts. 
 
 Methods of making tbe assignment and the course of 
 procedure subsequently, how commonly regulated.— 
 
 By statutes. Generally the instrument is best in the form of a 
 deed conveying the property, with a declaration of trust 
 directing the disposition to be made ; but informal writings 
 have been held valid, (i A. and E. Ency. of L., 855.) By 
 the New York statute it is directed to be acknowledged like 
 a deed and recorded. N. Y. R. S., 9th ed., 2429. 
 
 General duties of the assignee.— He must give a bond, 
 
 and all further security required. The assignment vests the 
 property in him. He is to collect it, by suit or otherwise, and 
 liquidate it. If the debtor fails to make an inventory of his 
 debts, property, etc., and deliver it to the county judge, the 
 assignee must do so. He may be authorized by the judge to 
 advertise for claims and provisionally to sell or compromise 
 debts owned. A settlement, or accounting, may be had by peti- 
 tion of the assignee at any time, or petition of one of his 
 sureties, the assignor or a creditor, after one year; the county 
 court issuing citations to persons interested, and having power 
 to appoint a referee, decree payment of debts, discharge the 
 assignee, etc. N. Y. R. S., 9th ed., 2429-39. 
 
 Validity of preferential assignments. — They are al- 
 lowed at Common Law, but are forbidden by statute in most 
 of the States. In New York, they are allowed, to the amount 
 of one-third of a debtor's property. (N. Y. R. S., 9th ed., p. 
 2439.) ^^^ a-domestic corporation may not make one. 
 
 TITLE BY INTESTACY. 
 
 What disposition was made of an intestate's per- 
 sonal property by ancient English law. — Whether a man 
 
 left a will or not, one-third of his personal estate went to his 
 widow and one-third to his lineal descendants; one-half to the 
 widow if no descendants, or to the descendants if no widow. 
 These were called "reasonable parts." The rest, if not willed 
 away could be seized by the King. Afterwards this preroga- 
 tive was transferred to the Roman CathoUc clergy as better 
 fitted to dispose of the property in "Jiios usus," conducive to 
 the repose of the soul of the deceased. 2 Bl. Com., 492. 
 Evils resulting from this rule.— The bishop made no 
 
52 
 
 proper distribution of the property left after deduction of the 
 reasonable parts, nor even paid the decedent's debts. 
 
 How these evils were remedied by statute.— The 
 
 statute of Westminister 2, 13 Edw. I., commanded that the 
 lawful debts be paid; 31 Edw. III., ch. 11, provided for the 
 appointment of the next of kin to administer the goods ; 2 1 
 Hen. VIII., ch. 5, gave the ecclesiastical judge the right to 
 appoint for this purpose either the widow or next of kin, or 
 both. 2 Bl. Com., 495. 
 
 How the ecclesiastical courts acquired jurisdiction 
 of the administration of a decedent's estate. — As above 
 
 explained. 
 
 In what English court this power now resides. — 
 
 In the Court of Probate, which is comprised in H. M. High 
 Court of Justice, but suits for legacies or for the distribution of 
 residue are entertained by the Chancery Division instead. 
 Ch. BL, 595- 
 
 In when American courts. — In " Probate," " Surrogates ' " 
 or " Orphans' " courts, etc. In New York the Surrogates' courts 
 in each county have cognizance of these matters. 
 
 Administrator, defined. — A person appointed by the 
 court, to manage and distribute the estate of an intestate, or 
 of a testator who has no executor. 
 
 From what class of persons an administrator is 
 
 appointed»^Primarily, from the widow and next of kin 
 entitled to share in the estate, who will accept. N. Y. Code 
 Civ. Pro., § 2660. 
 
 Who have the prior right. — The following is the order 
 of preference: (i) surviving husband or wife; (2) children; 
 (3) father; (4) mother; (5) brothers; (6) sisters; (7) grand- 
 children ; (8) other next of kin entitled to a share in the dis- 
 tribution ; (9) executor or administrator of a sole legatee of 
 entire estate. Afterwards come the creditors, (but first in New 
 York city the public administrator,) the county treasurer and 
 others. Guardians of entitled minors precede creditors, etc. 
 Relatives of equal degree are preferred in this order : ( i ) men 
 to women ; (2) whole blood to half blood; (3) unmarried wo- 
 men to married. (The brother of the half blood is therefore 
 preferred to the sister of the whole blood.) The administration 
 may be granted to more than one person if equally entitled, 
 or consented to by those who are. N. Y. Code Civ. Pro., 
 2660. 
 
 Relationship, how reckoned.— In England, as to dis- 
 tribution of personal property, and also in New York, the 
 Civil Law method of computation is followed, degrees being 
 counted from the decedent, through the common ancestor, to 
 the relative. 2 Kent Com., 413. 
 
53 
 
 Letters of administratioii, defined. — A writing issued 
 
 by the Surrogate's court, under its seal, and in the name of the 
 people of the State (N. Y. Code Civ. Pro., § 2590), conferring 
 upon some person or persons the power to administer the per- 
 sonal property of the decedent where there are no executors 
 for that purpose. 
 
 Letters " ad colligendum."— These clothe some persons 
 with the power temporarily to collect or preserve the goods of 
 the decedent. In New York he is called a Temporary Admin- 
 istrator. N. Y. Code Civ. Pro., §§ 2668-2683. 
 
 Administration "de bonis non," defined.— When an 
 
 executor or administrator dies before he has completed the 
 distribution of the estate, someone is appointed for the admin- 
 istration of the goods not (de bonis non) yet administered. At 
 Common Law, an executor of an executor might succeed to the 
 office of the former, but not under the present law in New 
 York. 2 Bl. Com., 506. 
 
 Natnre of an administrator's bond. — Before entering 
 
 upon his duties he must execute to the People of the State, 
 and file with the Surrogate, a bond for the faithful discharge 
 of his duties, with two or more sureties, in a penalty of not 
 less than twice the personal property of which the decedent 
 died possessed, or which probably can be collected. N. Y. 
 Code Civ. Pro., § 2664. 
 
 General nature of an administrator's duties from 
 tlie time of appointment till the administration is con- 
 cluded. — Aided by appraisers, he should make, and file with 
 the Surrogate, an inventory of the personal estate of the dece- 
 dent. He must collect the assets and turn them into money. 
 He must advertise weekly for six months, to ascertain debts 
 owing by the decedent and must proceed to pay them ; after- 
 ward the legacies, if there be a will, and finally the distributive 
 shares. N. Y. Code Civ. Pro., §§ 27 11-27 19. 
 
 Inventory defined. — A written schedule of all the dece- 
 dent's personal property, both in possession and in action, and 
 whether assets or not. 
 
 AssetSj defined. — Personal property applicable to pay the 
 debts oi a decedent. Certain household efiects are not in- 
 cluded. N. Y. Code Civ. Pro., §§ 2514, 2713. 
 
 Order in which debts are to be paid.— (i) Those pre- 
 ferred under the Federal laws. (2) Taxes on decedent's pro- 
 perty previous to his death. (3) Judgments docketed and de- 
 crees enrolled against the decedent, according to priority. (4) 
 All other debts liquidated and unliquidated. (N. Y. Code 
 Civ. Pro., § 2719.) Under the old laws, specialty debts were 
 preferred to those upon simple contract, but in New York they 
 rank alike. Funeral expenses may be paid at the outset of 
 
54 
 
 the administration. These and the other expenses of settling 
 up the estate are not among the " debts " and take precedence 
 of them all. The administrator is entitled to certain percent- 
 ages of the money collected and paid over. 
 
 What disposition is made of property remaining after 
 
 debts are paidi — The present subject properly relates to in- 
 testacy, but if there were a will the executors or the adminis- 
 trators cum testamento annexo, should, after a year from the 
 granting of letters, pay the legacies, in the following order : 
 specific, demonstrative, general. What is left goes to the resi- 
 duary legatee, if there be one. Whether there is a will or not, 
 the final surplus, if any, is to be turned over to the distributees, 
 viz.; the widow and next of kin. I^egacies and distributive 
 shares are subject to statutory transfer taxes. 
 
 Object of statutes of distribution. — To ensure that the 
 near relatives of the decedent receive just shares of the prop- 
 erty not otherwise disposed of. 
 
 General nature of tlie provisions found in sncli 
 
 StatUteSi — In New York, distribution is made as follows: 
 (i) One-third to the widow, the rest to the children or their 
 legal representatives. (2, 3) If no children nor representatives 
 thereof, one-half to the widow and one-half to the next of kin 
 if a parent of the decedent be living; if no parent nor descendant, 
 but a brother, sister, nephew or neice, the widow is entitled to 
 $2,000 more than one-half; and if none of these, to the whole. 
 (4) If there be no widow the children and their represent- 
 atives take the whole. (5) If neither widow nor descendants it 
 goes to whatever next of kin there may be. No representation 
 is allowed after brothers' and sisters' children. No distinction 
 is made between the whole blood and the half blood. Post- 
 humous children (relative to death of decedent) are admitted. 
 The rules ar? qualified by still further details. N. Y. Code 
 Civ. Pro., § 2732. 
 
 Next of kin delinedi — All persons entitled to share in the 
 distribution, except the surviving husband or wife. N. Y. 
 Code Civ. Pro., § 2514; 
 
 Distinguished from heirs.— Next of kin take personal 
 property, through intestacy, under the statutes of distribution 
 while heirs take real property, by inheritance or descent, under 
 the statutes or rules thereof. The two classes are in great 
 part, but not entirely, identical. 
 
 When property is said to be divided "per stirpes" 
 
 and when "per capita."— /Vr stirpes, i. e., by stocks, when 
 descendants take the shares their respective parents would 
 have received if living ; per capita, when all the distributees, 
 related in an equal degree, take equal shares. In New York, as 
 under the old law, the/ur stirpes rule is applied when they are 
 
55 
 
 of unequal degrees, e. g., a living son and the children of a de- 
 ceased son ; the per capita rule when all are of equal degree, 
 '■ g; grandchildren only, the prior generation being dead. 
 N. Y. Code Civ. Pro., § 2732. 
 
 ASSIGNMENT OF CHOSES IN ACTION. 
 Comiuon Law rule as to whether "choses" in action 
 
 could be assignedi — Not generally. Exceptions were annui- 
 ties and where transfers were made to the king. Bisph. Eq., 
 
 §§ i63> 163- 
 
 Reasons for this rulCi — (i) Such assignments would 
 tend to violate the laws against maintenance and champerty. 
 (2) There could, it seemed, be no valid sale unless the thing 
 sold was in rerum natura and under immediate control of 
 the vendor. Ibid., 162. 
 
 What courts first modified this rule. — Courts of Equity. 
 
 Ibid., § 164. 
 
 Rule subsequently maintained in courts of law, as to 
 the mode of bringing actions^ — The assignee might recover 
 in the name of the assignor. 
 
 Modern rule on this SUbjecti— Under the New York 
 statutes the assignee sues in his own name. N. Y. Code Civ. 
 Pro., § 1909. 
 
 Wha:t "choses" in action are now generally deemed 
 
 assignable^ — The general rule is, those which would survive 
 to the legal representatives. Thus, contracts not involv- 
 ing personal services, etc., and rights of action upon torts to 
 property. 
 
 What are not assignable! — Those, e.g., upon personal torts 
 and breach of promise to marry are not assignable even in 
 Equity. Portions of choses in action are assignable only in 
 Equity. So are goods to be acquired in the future. Some choses 
 in action may nowhere be assigned, because it would contra- 
 vene public policy ; e. g., pensions, salaries of public officers, a 
 right to litigate in Equity on the ground of fraud, or wages to 
 "become due" where no employment exi.sts. Bisph. Eq., § 
 166. See further, N. Y. Code Civ. Pro., § 1910. 
 
 Liability under a contract is not assignable ; yet where A 
 undertakes to perform work for B requiring no special skill and 
 where it appears A was not selected on account of any personal 
 qualification, it seems that B cannot complain if A gets the 
 work done by an equally competent person. Lawson on 
 Con., § 352. 
 
 How assignments may be made. — A mere /ar,?/ declara- 
 tion is sufficient ; as, when A directs his debtor, B, to pay C 
 a sum of money due from B to A, intending thereby to relin- 
 quish his own control of it. Ibid., § 167.