170 ft 13 (fantell iCaro Bttyoni Hibranj KF 170.A1°3 ne i88 n i VerSi ' y Ubrary Cle 'lliiiiiififiii!i rirmfJryt?^?.!?.?.?.^?.'.. .SSs'stapt :a c 3 1924 022 835 304 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022835304 CLERKS' AND CONVEYANCERS' ASSISTANT. COLLECTION OF FORMS CONVEYANCING, CONTRACTS, LEGAL PROCEEDINGS. FOR THE TJSB OF THE LEGAL PEOFESSION, BUSINESS MEN, AND PUBLIC OFFICERS IN THE UNITED STATES. COPIOUS INSTRUCTIONS, EXPLANATIONS, AND AUTHORITIES. BY BENJAMIN VAUGHAN ABBOTT AND AUSTIN ABBOTT NINTH EDITION. NEW YOKK: BAKER, VOORHIS & CO., LAW PUBLISHERS, 66 NASSAU STREET. 1881. 11357 Enteioa accural ng co Act ui Congress, in the year one thousand eigbt hundred and sixty-six, By Benjamin Vauguan Abbott and Austin Abbott, In the Clerk's Office of the District Court of the United States for tne Southern District of New Turk, PREFACE. The object of this work is to present to the Legal Profes- sion, Conveyancers, Judicial and other Public Officers, and Business Men, a well-selected and ample collection of forms of Agreement, Conveyances, Legal proceedings and instru- ments other than those peculiar to actions and criminal pros- ecutions. It is the third volume of a series of form-books, of which the Forms of Practice and Pleading in Civil Actions compose the first two volumes. For the materials of this work, we are, of course, to a de- gree indebted to the labors of others who have edited some- what similar collections ; but we have preferred to rely as far as possible upon actual precedents, such as the resources afforded in the course of a considerable practice, and in the course of reporting judicial decisions for a number of years, have enabled us to gather for the purpose. Such precedents which have been prepared for actual use, and which in many cases have been put to the tests of actual litigation, we have regarded as most valuable for the purpose of a work like this. On those subjects within the scope of the work, which are iv PEEFAOE. regulated in detail by the statutes of the several States, we have in many instances presented the principles adopted in the State of New York as the most generic exponent of American Law. But we have spared no pains to gather and present the laws of all the States, upon those subjects in reference to which the practitioner in any State is liable to be called on to draft papers or determine their sufficiency, according to the laws of other States than his own. Benjamin Vaughan Abbott. Austin Abbott. New Yobk. April. 1866. CONTENTS. CHAPTEE I. ABANDONMENT. KO. * Ct FORM. PAGE. Short Form . j g Abandonment of vessel and cargo, -with assignment, power of attor- ney and covenant for further assurance 2 2 CHAPTER II. ABSTRACTS OF TITLE. General Form 3 5 CHAPTER III. ACKNOWLEDGMENT AND PROOF OF DEEDS. I. Oaths and affirmations, administered orally to wit- nesses IN TAKING ACKNOWLEDGMENT OR PROOF. Oath of a subscribing witness, taken upon the Evangelists . . 4 20 The same, taken by uplifting the hand 5 20 Affirmation of subscribing witness 6 20 Oath of a witness to identity of party or subscribing witness, taken on the Evangelists 7 20 The same, taken by uplifting the hand 8 21 Affirmation of witness to identity of party or subscribing witness 9 21 II. Certificates of acknowledgment and proof for the various States, etc. Alabama. Acknowledgment 10 21 Proof by subscribing witness 11 21 Arkansas. Acknowledgment by a grantor known to the officer 12 22 By a grantor not personally known 13 22 By husband and wife, of a joint deed of the wife's land. ... 14 22 By the same, of a joint deed of the husband's land 15 23 Proof by subscribing witness 16 23 Proof by handwriting of grantor and subscribing witnesses . . 17 23 California. Acknowledgment by one or more grantors known to the officer 18 24 The same, where wife joins 19 25 By a grantor not personally known to the officer 20 25 VI CONTENTS. CT FORM, FAGS. Proof by subscribing witness personally known to the officer 21 25 By one not personally known 22 '26 Colorado. Acknowledgment 23 26 The same, where wife joins. 24 26 CONNECTICUT. Acknowledgment 25 26 The same, of a deed by a corporation 26 27 Dacotah. Acknowledgment ^7 27 The same by husband and wife, where she resides in the Ter- ritory -.. 28 27 Authentication of acknowledgment taken without the State.. 29 28 Delaware. Acknowledgment 30 28 The same, of a deed by a corporation 31 28 District of Columbia. * Acknowledgment 32 29 The same, where wife joins 33 29 Florida. Acknowledgment 34 30 The same, by husband and wife 35 30 Acknowledgment before commissioner, of deed executed or acknowledged without the State, by grantor not personally known 36 30 Acknowledgment before judge in a city or county where there is no Florida commissioner 37 31 Certificate of clerk to be annexed to the foregoing 38 31 Georgia. _ Acknowledgment 39 31 The same, by husband and wife 40 32 Proof by subscribing witness .. .-J 41 32 Acknowledgment or proof taken without the State by Geor- gia commissioner 42 32 Idaho. [Follow forms given for Nevada.] Illinois. Acknowledgment within the State by a grantor personally known to the officer 43 33 The same, bv husband and wife, where wife relinquishes dower 44 33 Acknowledgment within the State, where a grantor is not personally known. 45 34 Acknowledgment without the State, where the grantor is personally known 46 34 The same, where he is not personally known 47 35 Acknowledgment without the State, by husband and wife, where wife relinquishes dower 48 35 By the same, of a conveyance of the estate of the wife 49 35 Acknowledgment without the State, by attorney in fact. ... 50 36 Proof without the State, by a subscribing witness 51 36 The same, when the grantor and subscribing witnesses are dead or cannot be produced 52 36 Certificate of clerk to acknowledgment taken according to the laws of another State 53 37 Indiana. Acknowledgment 54 37 Declaration to bar dower of wife under age.' 55 37 CONTENTS. -rii , OF FORH. I"JQE. Iowa. Acknowledgment by grantor personally known to the officer 56 38 By sheriff. 57 gg Where the parties are not personally known '..'. 68 38 Proof by witness, where the grantor is dead or cannot be procured, or refuses to acknowledge , 59 39 Kansas. [Follow forms given for Iowa.] Kentucky. Acknowledgment within the State 60 39 The same, without the State 61 40 Louisiana. Authentic act of sale, and wife's renunciation 62 40 Acknowledgment of private act 63 41 Maine. Acknowledgment 64 42 The same, by attorney in fact. . . .• 65 42 The same, by corporation 66 42 Maryland. Acknowledgment within the State 67 43 The same, by husband and wife 68 43 Acknowledgment taken without the State 69 43 Affidavit to be affixed to mortgages of land and to mortgages or bills of sale of personal property 70 43 Massachusetts. Acknowledgment within the State 71 44 The same, by attorney in fact 72 44 Acknowledgment without the State 73 44 Michigan. Acknowledgment within the State 74 45 The same, by husband and wife 75 45 Acknowledgment without the State 76 45 Acknowledgment of deed by a corporation 77 46 Minnesota. Acknowledgment 78' 46 Acknowledgment where a resident married woman joins her husband in the deed 79 46 Proof by subscribing witness 80 47 Mississippi. Acknowledgment 81 47 The same, by husband and wife 82 48 Proof by subscribing witness 83 48 Authentication of acknowledgment taken by a judge without the State 84 48 Missouri. Acknowledgment by grantor personally known to the officer 85 49 By grantor not personally known 86 49 By husband and wife, to extinguish dower 87 49 By the same, to convey wife's estate 88 50 Acknowledgment of conveyance by power of attorney 89 50 Proof by witness, where grantor is dead, or cannot be pro- cured, or refuses to acknowledge 90 50 Nebraska. [Foltow forms given for Iowa.] Nevada. [Follow forms given for California.! ,rtii CONTENTS. OF FORM. PAGE. New Hampshire. Acknowledgment within the State 91 '51 Without the State ; 92 51 New Jersey. Acknowledgment within the State, by a grantor known or identified , 93 52 The same, by husband and wife 94 52 Of deed by a corporation 95 52 Of deed by an attorney 96 52 Proof by subscribing witness 97 53 Proof where witnesses dead or cannot be obtained 98 53 Acknowledgmentwithout the State , 99 53 New Mexico. Acknowledgment by a grantor personally known to the officer 100 54 By a grantor not personally known 101 54 • By husband and wife 102 54 New York. Acknowledgment within the State, by grantor known to the officer 103 55 By one of several grantors known to the officer 104 55 By two or more grantors known to the officer 105 55 By grantor not known to the officer 106 55 By two grantors, one known and one not known 107 55 By five grantors, two known aDd three not known 108 56 By husband and wife, known to the officer 109 56 By two husbands and wives, known to the officer 110 56 By husband and wife, not known Ill 57 By husband known and wife not known 112 57 By wife, in a separate certificate 113 57 By husband and wife, resident without the State 114 58 By attorney in fact, known to the officer 115 58 By the same, not known 116 68 By sheriff, referee or receiver 117 58 By deputy or under-sheriff. .. 118 59 By executor or trustee 119 59 By grantor, after attaining majority, to confirm deed exeeuted during minority 120 59 Proof within the State, by subscribing witness known to the officer 121 59 By subscribing witness, not known 122 60 By subscribing witness as to husband, and acknowledgment as to wife, both known to officer 123 60 The same, where neither are known 124 61 By subscribing witness known to officer, where grantors are husband and wife residing without the State 125 61 The same, where witness is not known 126 61 By subscribing witness, known to the officer, deed being ex- ecuted by attorney 127 62 Proof of deed of a corporation, signed by the president, known totheofficer 128 62 The same of a deed signed by the president and cashier or secretary, and proved by the latter 129 62 Of a deed by a religious corporation 130 63 The same of a deed signed by the rector and proved by the clerk 131 63 Proof of dead by municipal corporation 132 63 Petition for a subpoena to compel a subscribing witness to prove the execution of a conveyance 133 64 Verification thereof 134 64 Subpcena.. 135 64 CONTENTS U KO. OF FORM. P AGP Affidavit of service thereof 136 65 Warrant to attach, witness not appearing. 137 65 Commitment of witness refusing to testify.. 138 65 Proof by handwriting where the subscribing witnesses are dead 139 65 Acknowledgment or proof without the State 140 66 Authentication by county clerk, to he annexed to a certificate of acknowledgment or proof, taken according to the laws of this State, to be used in another State 141 67 NOKTH CAKOLINA. Acknowledgment within the State 142 67 The same, by husband and wife ."" 143 (>'.' Proof by subscribing witness 144 68 Acknowledgment or proof without the State, before a judge of another State 145 68 Authentication thereof 146 68 Acknowledgment of proof without the State, before a com- missioner 147 68 Ohio. Acknowledgment within the State 148 69 The same, by husband and wife 149 69 Acknowledgment without the State, by a single person 150 69 The same, by husband and wife v . . 151 tfO The same, by an attorney in fact 152 70 Oregon. Acknowledgment by grantor known to the officer 153 70 The same, by grantor not known 154 71 By husband and wife, resident and known 1 55 71 Proof by subscribing witness known to the officer. 156 71 By subscribing witness, not known 157 71 Pennsylvania. Acknowledgment within or without the State 158 72 The same, by husband and wife 159 72 By an attorney in fact 160 72 The same, in behalf of a corporation 161 73 Acknowledgment of certificate, by special partners 162 73 Rhode Island. Acknowledgment within the State 163 73 The same, by husband and wife 164 74 Acknowledgment of a separate release of dower 165 74 Acknowledgment without the State 166 74 South Carolina. Proof by subscribing witness 167 74 Acknowledgment of release of dower 168 75 Acknowledgment of renunciation of inheritance 169 75 Acknowledgment without the State 170 76 Tennessee. Acknowledgment 171 76 The same, by husband and wife 172 76 Proof by witnesses 173 76 Texas. Acknowledgment 174 77 Acknowledgment by wife, of deed by her husband and her- self, of her separate property 175 77 Proof by subscribing witness 176 77 Vermont. - i Acknowledgment 177 78 Acknowledgment by agent of corporation 178 78 CONTENTS. KO. Virginia. i or form nm Acknowledgment 179 78 Acknowledgment by married woman 180 79 Washington Territory. Acknowledgment 181 79 Acknowledgment by husband and wife 182 79 West Virginia. [Follow forms given for Virginia, except that one justice may take an acknowledgment.] Wisconsin. Acknowledgment by a grantor known to the officer 183 80 By a grantor not known to the officer 184 80 CHAPTER IV. AFFIDAVITS. Common form . : 185 81 Affidavit to copies of papers 186 81 Affidavit to be used abroad 187 81 CHAPTER V. APPOINTMENTS. I. appointments to perform duties, etc. Appointment of a guardian, by a minor ; 188 82 The same, by a father „..'. 189 83 The same, made by will 190 83 II. Appointments in execution op powers. By wife, of real property, by a grant to take effect on her death 191 84 The same, by will..' 192 84 Consent to be indorsed on the foregoing 193 85 By a wife, for the sale of stocks, under a power reserved to her in a marriage settlement 1 94 85 Reservation of a power to revoke and appoint anew, which may be inserted in an appointment 195 86 CHAPTER VI. APPRENTICES. [. The contract of apprenticeship. Indenture with consent of father 196 88 Indenture with consent of mother 197 89 Consent of father or mother 198 89 Justice's certificate, where the consent is by the mother .... 199 89 Indenture with consent of guardian ; . . . . 200 89 Consent of guardian, where parent's consent is not given . . . 201 90 Indenture, with consent of magistrates 202 90 Consent of magistrates, where parent's or guardian's consent is not given 203 90 Agreement by the father, to answer for the fidelity of the apprentice : to be indorsed on the indenture 204 90 II. Proceedings upon a violation. Complaint against apprentice for refusing to serve 205 91 Verification of the same 206 91 CONTENTS. xi NO. OP FORM. PAGE Warrant on the foregoing complaint 207 91 Commitment of apprentice refusing to serve 208 91 Master's complaint touching misdemeanor or ill-behavior of apprentice 209 92 Warrant on the foregoing complaint 210 92 Commitment of apprentice for misdemeanor or ill-behavior. . 211 12 Discharge of apprentice from service, and of the master from his obligations 212 9? Complaint by apprentice 213 tili Summons on the foregoing complaint 214 93 Discharge of the apprentice on the foregoing complaint 215 93 CHAPTER VII. ARBITRATION AND AWARD. I At common law. General form of agreement of submission 216 96 The same, with agreement for an umpire.. . .■ 217 97 Short form of submission 218 98 Special submission ; controversy between several persons on each side 219 98 Special submission, of controversy as to wages 220 98 The same, of controversy as to an account 221 98 The same, of controversy as to breach of warranty 222 99 The same, concerning the settlement of partnership affairs . 223 99 The same, of controversy as to annuity in lieu of dower .... 224 99 The same, concerning land and trespasses 225 99 The same, concerning boundaries 226 100 Arbitration bond 227 100 The same, where appointment of an umpire is contemplated. 228 100 Agreement of submission or bond, where the* arbitrators are to be sworn 229 101 Submission without discontinuing a pending suit 230 101 Notice to the arbitrators of their appointment 231 101 Notice of hearing for adverse party 232 101 Oath of witnesses 233 102 Agreement to extend the time for making award 234 102 Revocation of arbitrator's powers 235 102 Notice of revocation to adverse party 236 102 Appointment of umpire after disagreement of arbitrators. . . 237 102 The same, before the hearing 238 103 Award by one or more arbitrators 239 103 Award by umpire 240 103 Awards ; — for payment of money in full 241 1 04 " for damages for breach of warranty 242 1 04 " for delivery of goods 243 104 " for delivery of writings 244 104 " for delivery up of writings to be cancelled 245 105 " for giving a bond for payment of money 246 105 " for assignment of a mortgage 247 105 " for specific performance of agreement to assign a lease 248 105 " for specific performance of contract to convey land 249 105 Provision for the discontinuance of all suits 250 1 05 " for the same, with costs 251 100 " for general releases 252 106 " for costs of the arbitration 253 106 Xii CONTENTS. HO. tl. Arbitration tinder the statute. or F0 " H " "°* Submission 254 106 Oath of arbitrators, ; «o5 107 Oath of applicant for subpoena 256 J07 Subpoena to appear before arbitrators 257 107 Affidavit to the submission by the subscribing witness 258 107 Affidavit to the award by the subscribing witness 259 108 The same, by the arbitrators 260 108 Proof of service of award 261 108 Notice of application for j udgment 262 109 Order confirming award 263 109 Judgment on award 264 109 CHAPTEE Vin. AKREAKS OF PAY AND BOUNTY. Invalid's application for arrears of pay and bounty 265 111 Widow's application for the same 266 111 Children's application 267 112 Father's application 268 113 Mother's application 269 113 Brothers' and sisters' application 270 114 CHAPTEE IX. ASSIGNMENTS. Short form of assignment, suitable to be indorsed on a written instrument 271 116 The same; with a power to sue 272 116 Assignment of a demand, as collateral security for a note 273 117 Assignment of a demand, as collateral security for an indorsement. 274 117 Assignment of an account 275 117 Assignment of a bail-bond 276 118 Assignment of a bond, with covenant of amount due, and power to sue 277 118 Another form, with covenants, guaranty, and power to sue 278 118 Assignment of chattels, by reference to former bill of sale 279 119 Assignment of a book to be copyrighted 280 120 Assignment of a copyright.. 281 120 Assignment of a contract for the sale of real prop'erty 282 120 The same ; adapted to a special case 283 121 . Consent to the preceding assignment 284 121 Assignment of a debt 285 122 Assignment of ground-rent 286 122 Assignment of indenture of apprenticeship 287 123 Approval of the preceding assignment 288 123 Assignment of a judgment 289 123 The same ; another form '. 290 124 The same ; to be indorsed on transcript 291 124 Assignment of a lease 292 125 Assignment of a mortgage. 293 125 Assignment of a mortgage with the bond or note 294 126 Assignment of partnership property, by one partner to another, to close the concern 295 126 Assignment of entire interest in a patentable invention 296 128 Assignment of part interest 2U7 igg Assignment of letters patent 298 129 , Assignment oi policy of insurance 299 129 CONTENTS. xiu OF FORM. PAGR Approval, to be indorsed on the preceding assignment 800 130 Assignment of recipe for making a medicine 801 130 Assignment by a sheriff to his successor in office 302 130 Assignment of shares in corporate stock 303 131 Assignment of wages due 304 131 Assignment of miscellaneous property described in a schedule 305 132 Assignment by a corporation 306 132 CHAPTEE X. ASSIGNMENTS IN TEUST FOR CREDITORS. Assignment by an individual, without preferences 307 137 The same ; another form 308 139 Acceptance by assignee 309 139 Assignment by copartners, with preferences 310 139 The same ; another form 311 140 Inventory (required by the New York statute of 1860) 312 142 Petition for an accounting by assignee (under same statute) 313 143 Bond of assignee (under same statute) 314 144 Approval of county judge, to be indorsed on the preceding statute .315 144 Summons to an assignee (under same statute) , 316 145 CHAPTER XL AUCTIONS. Bond of auctioneer 317 145 Acknowledgment and approval 318 146 Certificate to be indorsed on copy for county clerk 319 146 Notice by magistrate to comptroller 320 146 Oath of copartner or clerk 321 147 Oath of auctioneer to semi-annual account 322 147 Oath of partner or clerk to account containing any sales made by him..T 323 147 Terms of sale of real property 324 148 Memorandum of sale 325 148 CHAPTER XII. BANKS. Affidavit to statement of unclaimed dividends or deposits 326 149 CHAPTER XHI. BASTARDY. Application of a superintendent, or overseer, of the poor 327 150 The same ; when the application is before the birth 328 150 Affidavit of the mother, on her examination before the magistrate 329 151 The same ; when the examination is taken before the birth 330 151 Warrant to apprehend reputed father 331 151 Indorsement on a warrant to be executed out of the county 832 151 Indorsement of justice in another county 333 151 Bond of reputed father, on arrest in another county, to indemnify the county, etc 334 152 The same ; conditioned to appear 335 152 Certificate of discharge, on executing either foregoing bond. 336 153 Bond to obtain adjournment of the hearing before the magistrate 337 153 xiv CONTENTS. WO. OF FORM. PASS Subpoena 338 154 Warrant t< bring up the mother to testify • • • 339 154 Order of fiJation 340 154 Bond for support of child and mother, under order of filiation ... . 341 155 Bond to appear, to be given instead of the foregoing 342 156 Warrant to commit reputed father 343 156 Order of filiation made in the absence of the reputed father, he having been arrested in another county 344 157 Warrant to commit a mother refusing to disclose the father's name 345 157 Summons to mother having property in her own right 346 158 Order thereon 347 158 Notice of appeal from order of filiation 348 158 CHAPTEE XIV. - > BILLS OF EXCHANGE. Bill of exchange 349 159 Set of bills 350 160 Indorsements 351—4 160 CHAPTER XV. BILLS OF LADING. General form 355 161 CHAPTER XVI. BILLS OF SALE. Bill of sale describing the chattels 356 163 Bill of sale of a horse, with warranty 357 163 Bill of sale, referring to a schedule annexed, for an enumeration of the goods 358 164 Schedule annexed to the foregoing bill of sale 359 164 Bill of sale where a schedule is to be subsequently made 360 164 Declaration of symbolical delivery which may be inserted 361 165 Another form ; by indorsement on the bill of sale , 362 165 Bill of sale in consideration of the assignee's agreeing to maintain the assignor for life 363 165 Bill of sale of a registered vessel of the United States 364 166 Acknowledgment of the foregoing bill of sale 365 167 Bill of sale of an enrolled vessel of the United States 366 167 Bill of sale of a vessel not registered or enrolled 367 168 Bill of sale of stocks already pledged to another person 368 169 CHAPTER XVII. BONDS. I. Bonds conditioned for the payment of money only. Short form of bond for payment of money, with or without penalty 369 173 Common form of bond for payment of money 370 173 The same ; with interest periodically meanwhile 371 173 The same for payment in equal annual instalments, with interest annually on what remains unpaid 372 174 The same ; for payment in unequal instalments, with interest 373 174 The same ; for payment in instalments, with interest on each instalment as it falls due . 374 174 CONTENTS. XV OF FORM. PAGF. The same ; for pajment after death of third person 375 174 Bond with interest clause— usual where mortgage is given . 376 175 The same ; with insurance clause 377 175 Bond by several obligors 378 176 Signature by an obligor who will not be bound unless others sign 379 177 Bond by several persons, bound severally, for several amounts 380 1 77 Bond by one obligor to several obligees 381 177 Bond to executors or administrators 382 178 Bond to an unincorporated society 383 178 Bond to a corporation 384 178 Bond by a corporation 385 179 Negotiable bond of corporation 386 179 The same ; secured by mortgage 387 180 Form of coupons or interest warrants annexed to negotiable bond , 388 181 Bond with warrant of attorney to confess judgment 389 181 Short form of the same ' . . 390 182 Collateral bond for the payment of money already secured by mortgage only 391 182 Collateral bond by surety, for payment of money already secured by bond and mortgage 392 183 Bond for payment of an annual sum to two persons and the survivor for life 393 183 Bond for the payment of an annuity for a term of years. . . 394 184 Bond for payment of money upon expiration of apprentice- ship, or upon marriage i 395 184 Bond or bill for an unliquidated sum 396 185 Bond by debtors to pay according to a composition deed 397 185 II. BOTTOMRY AND RESPONDENTIA BONDS. Bottomry bond 398 186 Bottomry bond by a part owner, signing as attorney for other owner 399 187 Respondentia bond 400 188 HI. Bonds fob the performance or non-performance of VARIOUS ACTS. Bond for the performance of covenants 401 189 Bond that a warranty shall be kept 402 189 Bond for repayment of purchase-money, on a breach of warranty 403 190 Bond for a deed, by vendor to purchaser 404 190 Bond with surety, to execute a conveyance 405 191 Bond to give a quit-claim 406 192 Bond that a third person shall convey on coming of age. . . 407 192 Condition for quiet possession meantime 408 193 Bond to execute an assignment 409 193 Bond to pay off and cancel a mortgage 410 193 Bond by vendor, to deliver lost title deeds when found, and to indemnify against encumbrances 411 194 Bond by part owners of a ship, on selling the same, to pro- cure bill of sale from the other part owner 412 194 Bond of tenant, with surety, for the payment of rent 413 195 Bond of tenant, with surety, for the surrender of premises in good condition, etc 414 Bond, with surety, to deliver to sheriff goods levied on, and left in defendant's possession 415 Bond to executors, etc., to refund legacy if assets prove in- sufficient •.•••• 416 197 Bond to executors, etc., on payment of a legacy to a minoi . -417 19S Bond to maintain two persons for life 418 198 196 196 v X vi CONTENTS. NO. v OF KORM. PAH* Bond to marry, or to pay a sum of money. 419 199 Bond to contribute to the support of an illegitimate child. . 430 199 Bond to serve in consideration of the payment of a debt. . . 421 199 Bond by a father for service of apprentice 422 200 Bond, for clothing, and in sickness maintaining an appren- tice, and for his fidelity 423 200 Bond of master, to discharge an apprentice before the ex- piration of his term ; ■ - • 424 201 Bond to indemnify a master for discharging an apprentice. . 425 202 Bond by one empowered to collect debts for executors, etc. . 426 202 Bond- for the return of goods to be sold, or their value 427 203 Bond for the fidelity of a clerk : . 428 203 Bond for the fidelity of the treasurer of an unincorporated association 429 204 Bond for the fidelity of the casliier'or teller of a bank 430 204 IV. Bonds of indemnity. Bond, with surety, to indemnify the sheriff on levying an execution 431 205 Bond, with surety, to indemnify maker of note, or acceptor of bill, for accommodation, from loss thereby 432 206 Bond to indemnify partners having indorsed for accommoda- tion, against liability thereby ; 433 206 Bond by a person carrying on business in the name of another, to indemnify the latter from loss or damage .... 434 207 Bond to indemnify tenant on paying rent when title is in dispute 435 208 The same, another form; requiring recovery against the tenant ; ..... 436 208 Bond to indemnify against claim of dower.. 437 209 Bond to indemnify on paying a lost note or bill 438 209 Bond to indemnify on paying a lost bond 439 210 Bond to indemnify a surety in a bond for payment of money. 440 210 Thesame; toasurety ina.bondforperfonnanceof covenants. 441 211 Bond to indemnify a receiptor to the sheriff 442 211 V. Official bonds. Generalform 443 212 Bond of sheriff. 444. 212 Affidavit of the sufficiency of sureties, to be indorsed on the foregoing bond , 445 _ 213 Clerk's certificate of approval of sureties 446 213 CHAPTER XVnT. BOUNTY LANDS. Application for bounty land by one who has never applied before. 447 215 Oath to identity 448 216 Magistrate's certificate 449 216 Certificate of official character and signature 450 217 Application for a second warrant 451 217 Application by the widow of a deceased person who has not had a warrant 452 217 Application by widow for a second warrant . . ; 453 218 CHAPTEE XIX. CERTIFICATES. Certificate to copy of paper on file 454 219 Certificate to copy of record 455 219 Certificate of official character 456 219 CONTENTS. rvii CHAPTEE XX. CHARTER PARTIES. KO. OF FORH. PAGB Charter party reserving possession to the owner 457 221 Charter party giving possession to the hirer 458 223 CHAPTEE XXI. CHATTEL MORTGAGES. Short form ; without warranty, stipulations as to right of possession, or sale, or personal liability 459 227 The same ; but with personal liability, and stipulation for sale. . . 460 228 Chattel mortgage to secure a present indebtedness payable on demand, or at a specified day, with reservation of right of pos- session, except in case of danger, and stipulation for sale 461 228 Chattel mortgage, with warranty of title, covenant to pay the debt, and reservation of right of possession until the mortgagee demands it 462 229 Schedule annexed to the foregoing 463 230 Chattel mortgage for a sum of money at a future day, with interest periodically meanwhile 464 230 The same ; for payment in equal annual instalments, with interest annually on what remains unpaid 465 231 The same ; for payment in unequal instalments, with interest 466 231 The same ; for payment in instalments, with interest on each in- stalment as it falls due 467 231 Chattel mortgage to secure a note 468 231 Chattel mortgage to secure an indorser 469 232 Chattel mortgage to secure payment of numerous notes, and in- demnity against certain debts of the mortgagee assumed by the mortgagor 470 232 Chattel mortgage to secure a surety in. a lease 471 233 Chattel mortgage to secure future advances 472 234 Chattel mortgage, by a corporation to trustees, in trust for its bondholders 473 234 Condition, in a mortgage of stock, that the mortgagee shall not sell until default 474 236 Unqualified reservation of right of possession until default 475 236 Stipulation requiring a sale to be made 476 237 Stipulation regulating the mode of sale 477 237 Mortgage of a vessel 478 237 Acknowledgment of a chattel mortgage 479 238 Annual statement of amount claimed 480 238 The same ; where the mortgage is claimed as security for con- tingent or unliquidated demands 481 238 Notice of sale under mortgage 482 239 Terms of sale 483 239 Purchaser's memorandum 484 240 Notice of adverse claim, read at the sale to warn purchasers 485 240 CHAPTEE XXII. CLERKS AND CRIERS. Proclamation on opening court 486 249 Proclamation for sheriff to return process 487 242 Proclamation for magistrates, etc., to return recognizances, etc. . . . 488 242 B mil CONTENTS. HO. OF FORM. PAGB 242 242 Proclamation before calling grand-jury •. 489 Oath of the foreman of the grand-jury 490 Oath of grand-jurors 491 243 Proclamation for silence on charging grand-jury 492 24-a Proclamation calling constables 493 243 Proclamation before calling petit-jury 494 24^ Proclamation for imposing fines •• • 49o 24«. Proclamation for persons to appear on recognizances 490 243 Proclamation for persons bound to answer 497 243 Proclamation for bail to produce principal _ 498 243 Proclamation for discharge of persons against whom no bills are found 499 244 Proclamation for discharge 500 244 Proclamation for arraignment of prisoners. 501 244 Arraignment of person indicted 502 244 Proclamation for petit-jury on the same 503 244 Address of clerk to the prisoner, before calling the jury 504 244 Oath of juror on a trial for felony ■. 505 244 Oath of trier on a challenge to the favor 506 245 Oath of a witness before the triers 507 245 Finding of the triers. 508 245 Proclamation requiring a witness under recognizance, to appear and testify 509 245 Oath of a witness on a trial for felony 510 245 Proclamation before sentence pronounced 511 245 Proclamation before calling jury on a trial for misdemeanor 512 245 Oath of juror on a trial for misdemeanor 513 245 Oath of a witness on a trial for misdemeanor 514 245 Oath of a witness on the trial of a justice, on charges 515 246 Address of the clerk on taking a recognizance to appear 516 246 The same ; on recognizance to keep the peace, or for good behavior. 517 246 Taking verdict on a trial for felony 518 246 Polling jury in the same 519 246 Taking verdict in other criminal cases 520 247 Polling jury in the same .' 521 247 Proclamation for jury in a civil cause 522 247 Oath of jurors in a civil cause 523 247 Oath of triers in a civil cause, upon a challenge for favor 524 247 Oath of witness on a challenge of a juror 525 247 Proclamation for plaintiff to appear and prosecute 526 248 Proclamation for defendant on an inquest 527 248 Proclamation calling a witness to answer on a subpoena 528 248 Oath of a witness to give testimony 529 248 The same by the uplifted hand 530 248 Affirmation of witness 531 248 Oath on the voire dire 532 248 Entry when an attachment issues against a witness 533 248 Oath of interpreter 534 248 Oath of interpreter to a deaf and dumb witness 535 249 Oath of a party, or interested witness, preliminary to evidence of the contents of a paper not produced 536 249 Oath of a party, or interested witness, preliminary to proving- the handwriting of a subscribing witness 537 249 Proclamation for adjournment 538 249 Proclamation for opening court after adjournment 539 249 Oath of constables, on retiring with a jury, or jurors on leave .. . 540 249 Oath of constables, to keep jury on an adjournment 541 249 Oath of constable who attends the jury when they retire to con- " sider their verdict in civil and criminal cases 542 250 Taking verdict in a civil case 543 350 Entry of verdict 544 250 CONTENTS. xix HO. OF FORM PAGR Entry of verdict, with assessment of value of personal property . . 545 250 Entry of judgment 546 250 Taking verdict where personal property is in question 547 251 Taking verdict in actions for damages 548 251 Taking verdiet in cases of lunacy, etc 549 251 Taking verdict in action for recovery of real property 550 251 Polling jury in civil cases 551 251 Oath on application to excuse or discharge a j uror or constable ... 552 253 On application of juror, or constable, for a remission of fine 553 252 Oath of poor witness, on application for expenses 554 252 Notice of drawing a jury 555 252 Notice of drawing additional jurors 556 252 CHAPTEE XXIII. CONTRACTS. General form of contract, with provision for liquidated damages in case of breach 557 254 Contracts executed by agents or attorneys in fact 558 255 Contract declaratory of the construction of a previous contract ... 559 255 Contract with a clerk or workman 560 256 Contract to bind a, minor to service in payment for his passage- money 561 256 Acknowledgment of the foregoing contract 562 256 Railroad construction contract 563 257 Contract by officers of a corporation, for construction of a loco- motive engine 564 269 Contract for the construction of a steamship 565 269 Contract for the construction of engines for a steamship 566 270 Contract for the right to manufacture a patented article, paying a tariff to the patentee 567 271 Contract between author and publisher, for publication of a book upon a copyright . t 568 272 Contract for sale of manuscript and copyright 569 273 Contract between printers and publishers, for publication on joint account 570 274 Agreement for sale and purchase of personal property 571 275 Contract for sale of goods at a price to be fixed by appraisal 572 275 Contract for sale of stock of goods and good-will of business, with covenant in restraint of the vendor 573 276 Agreement to sell shares of stock in a corporation or jointstock company 574 277 Contract for sale of land 575 277 The same ; with building loan 576 278 Contract for sale of farm and mill ; payment in instalments 577 281 Stipulation as to terms of purchase-money mortgage : 578 282 Stipulation as to time of taking possession and incomes 579 282 Stipulation as to possession, taxes, etc 580 282 Provision' that existing insurance shall inure to the benefit of the purchaser 581 283 Contract of several persons to unite in a purchase 582 283 Agreement for a lease 583 283 Contract for building 584 284 Special stipulations which may be inserted according to the nature of the case 585 284 Contract for mason's work of a building. 586 285 Contract to build party wall 587 287 Agreement for changing mortgage security 588 288 XX CONTENTS. CHAPTEE XXIV. CORONERS, no. OF FOBH. PAOI Oath of the foreman of a coroner's jury 589 289 Oath of other jurors 590 289 Subpoena for witnesses 591 289 Attachment against a witness not appearing 592 290 Oath of witness on coroner's inquest 593 290 Examination before coroner and jury 594 290 Inquisition 595 290 Warrant of coroner for arrest of person charged by the inquest.. . 596 291 CHAPTEE XXV. OOEPO RATIONS. I. Stock and dividends. Preliminary engagement to take stock in a corporation to be formed 597 292 Certificate of stock 598 292 Transfer of stock 599 292 Power of transfer 600 293 Power to collect dividend ' 601 293 n. Elections. Oath of inspector 602 293 Oath of stockholder of a moneyed corporation when chal- lenged 603 293 Proxy 004 294 Affidavit to be annexed to proxy to enable voting at an elec- tion in a moneyed corporation , 605 295 CHAPTEE XXVI. COVENANTS. A covenant by one person to one person 606 295 A joint covenant by two or more persons to one person 607 296 A joint and several covenant 608 296 A several covenant .' 609 296 The same ; another form 610 296 Covenant by a husband for himself and wife 611 296 Covenants bv several grantors, each for his own portion of the estate only 612 296 Mutual covenants ; — independent 613 296 Mutual covenants ; — a covenant to convey being dependent upon a covenant to pay purchase-money 614 297 Covenant for seizin 615 297 The same ; a short form 616 297 The same ; several and not joint 617 297 The same ; by life tenant and tenant in fee of the reversion 618 297 Covenant for seizin by executors 619 298 Covenant for power to convey 620 298 Short form of covenant for seizin and power to convey 621 298 Covenant for quiet possession 622 298 The same ; a shon form, 623 299 Covenant against encumbrances 624 299 The same ; a short form 625 299 CONTENTS. xxi NO. OF PORU. PAOK Covenant for further assurance 626 299 The same ; a short form 627 300 Covenant against grantor's acts 628 300 The same ; a short form 629 300 Several covenants by grantors against their own acts respectively. 630 300 Short form of covenants of seizin and warranty 631 300 Covenant against nuisances. .• 632 300 Covenant not to build so as to obstruct light and air 633 301 Covenant to maintain fences 634 301 Stipulation against implied covenants 635 301 Covenant to stand seized to uses 636 301 CHAPTEE XXVII. DEBTOR AND CREDITOR. Letter of license, common form 637 303 The same ; with a condition that the debtor pay by instalments . . 638 304 Composition with creditors 639 304 Letter of license or composition deed, to be void unless all the specified creditors sign 640 305 Composition deed allowing debtor to carry on business under in- spection of a committee of the creditors 641 306 Minute of creditors' meeting agreeing on a composition 642 309 CHAPTEE XXVIII. DEEDS. I. FOHMS SANCTIONED BY THE STATUTES OR PRACTICE OF PAR- TICULAR States, and directions for execution. Alabama 316 Arkansas 316 California 316 Connecticut 317 Delaware 317 Georgia 317 Illinois. Deed conveying with covenants 643 317 Indiana. Deed conveying without covenants 644 318 Warranty-deed 645 31.8 Anotherfonn 646 319 Iowa. Quit-claim deed 647 320 Deed in fee-simple without warranty 648 320 The same ; with warranty 649 320 Another form ; — warranty-deed with covenants 650 320 Deed of trust 651 320 Kansas 320 Kentucky 320 Deed with covenants 652 321 Louisiana 321 Conveyance with warranty and purchase-money mortgage. . 653 321 Maine 322 Maryland 322 Massachusetts 323 Common form of warranty-deed 654 323 xxu CONTENTS. NO. OV FORM. PAGB The same ; with release of dower by wife 655 333 Quitclaim and release 656 324 Deed by husband and wife, conveyingwife's land 657 324 Michigan '. 324 Minnesota 325 Mississippi 325 Missouri 325 Deed with general warranty 658 325 Deed, with special warranty 659 326 Quit-claim deed 660 326 New Hampshire , 326 New Jersey 326 Deed with general warranty 661 326 Deed with special warranty 662 327 New York 327 Ohio 327 Deed with covenants and warranty 663 328 Oregon 328 Pennsylvania 328 Warranty-deed 664 328 Rhode Island '. . . 329 South Carolina 329 Deed with warranty 665 330 Tennessee 330 Texas 330 Vermont 330 Virginia 331 Quit-claim deed ' 666 331 Deed to convey grantor's whole interest 667 331 Deed with covenant against grantor's acts 668 331 Warranty-deed with full covenants 669 331 Deed of trust to secure debts, etc 670 332 Deed of life-estate 671 332 Wisconsin 332 II. Forms generally applicable. Formal indenture 672 333 Deedpoll , 673 334 Short form of deed in fee 674 334 Quit-claim deed 675 334 Deed conveying without covenants 676 335 Deed with covenants against grantor's acts 677 336 Warranty-deed 678 337 Special warranty 679 338 Warranty-deed with full covenants 680 339 Deed with covenant against certain buildings and occupa- tions, and nuisances 681 341 Short form of warranty-deed 682 343 Attestation of deed in which erasures or interlineations appear 683 343 Deeds by or to Particular Glasses of Parties, such as Corporations, Officers, Trustees, etc. Deed by a corporation 684 343 The same ; where all the directors sign : 685 344 The same ; by a municipal corporation 686 344 Deed to a corporation 687 344 Deed relating to heirs or devisees 688 345 Deed executed by an attorney in fact 689 345 CONTENTS. xxiii NO. OP FORK. Another form ; referring to the power annexed 690 345 Deed by authority of the Legislature 691 346 Deed by executors 693 346 Deed by survivors of the acting executors 693 347 Deed by executors, reciting the power and the facts 694 348 Deed by several executors, covenanting severally 695 349 Deed by executor or administrator, selling by order of court for payment of debts 696 349 The same ; setting forth the orders at large 697 350 Deed by executor, conveying land by order of court, pur- suant to contract of testator, duly proved and recorded. . 698 351 Deed by administrator, conveying, by order of court, pur- suant to contract of his intestate 699 352 Deed by administrators, for purpose of partition, after valua- tion ana refusal by heirs 700 353 Deed of guardian, conveying infants' estate by leave of court 701 355 Deed of infant ; conveying by special guardian, by leave of court 702 356 Deed by committee of idiot, lunatic or habitual drunkard. . 703 357 Deed by trustees or assignees of an insolvent or bankrupt or an absconding debtor 704 358 Deed by master in chancery 705 359 Sheriff's deed after sale on execution 706 361 The same ; conveying to an assignee of the purchaser 707 361 The-same ; to redeeming creditor 708 361 Deed by sheriff or referee, on sale in foreclosure 709 362 The same ; in partition 710 363 Deed by commissioners on sale in partition 711 364 Deed by mortgagee, on foreclosure by advertisement 712 365 Deed by referee pursuant to a judicial sale, other parties in interest joining as grantors 713 367 Deeds upon peculiar considerations : Deeds to correct mistakes in a prior conveyance 714 368 Deed confirming a prior voidable deed 715 369 Short form of the same : by indorsement on the prior deed 716 370 Release by a trustee to the grantee of his cestui que trust. . 717 370 Partition deed 718 371 Deed among heirs, in confirmation of devises, with covenant to abide by the will 719 372 Deed of gift 720 374 Deed of exchange 721 375 Various descriptions of property and appurtenances : Description of land by No. of lot and township 722 376 Description by metes and bounds 723 376 The same of a city lot 724 376 Description by reference to a map 725 377 Description bounding by rivers, highways and other boun- daries 726 377 Description of water-lot 727 377 Description of unpatented land ^ . . 728 378 Description o: undivided share 729 378 Description of land subject to a mortgage, or of an equity of redemption 730 378 The same ; where the grantee covenants to pay the mortgage 731 378 Description of a lot with a right of way and of making a drain 732 379 Description of a lot abutting on an alley, with right of way therein subject to charges and covenants 733 379 Grant of easement appurtenant to lot bounding on an alley orcourt 734 380 XX1 V CONTENTS. NO. OF FORM. PAGE Premises subject to easement for party wall 735 380 Premises subject to easement for drain 736 380 Description of water-power 737 380 Reservation of ground for streets 738 381 Exception and reservation of mines, with rent and covenant to pay damages 739 381 Deeds creating or conveying particular estates other than an ab- solute fee : Deed of a life estate with remainder over 740 382 Deed by a tenant for life 741 382 Assignment of dower 742 383 Release of dower 743 384 General release of dower in consideration of beneficial pro- visions of will 744 384 Short form of release of dower by indorsement on deed. . . . 745 385 Deed conveying reversion in fee subject to outstanding life- estate: 746 385 Release of rents 747 386 Deed of surrender of a term for life or years to the rever- sioner 748 388 Short form of a surrender of lease, to be indorsed thereon . . 749 388 Deed creating a joint tenancy 750 388 Deed creating a tenancy in common 751 389 Release of part of mortgaged premises 752 389 Deed of right of way, with covenant by grantee to repair. 753 390 Right to lay an aqueduct. 754 391 Deed of water-power, measured by capacity of flume 755 391 Deed of a pew by proprietors of a church 756 391 Deed by trustees of the corporation conveying pew subject to assessments 757 392 Deed of a pew by one individual to another 758 392 Deed of land to a railroad company for the purposes of their road 759 393 Trustdeed 760 394 Habendum of a deed in trust for a married woman 761 394 Deed conveying in trust for support of parents, with power of appointment, and a reservation of rents for payment of encumbrances 762 395 CHAPTEE XXIX. DEFEASANCES. Defeasance and covenant to account for a collateral security 763 397 CHAPTER XXX. DISORDERLY PERSONS, VAGRANTS, ETC. Complaint against offender 764 399 Complaint for keeping disorderly house 765 399 Warrant to arrest offender 766 399 Examination of the offender 767 399 Record of conviction of vagrant, with commitment to poorhouse. 768 400 The same ; with commitment to county jail ' 769 400 Recognizance of a disorderly person 770 400 Record of conviction ... 771 401 Commitment of vagrant to poorhouse 772 401 The same ; to county jail 773 40J Commitment of disorderly person in default of sureties 774 402 CONTENTS. xxv CHAPTER XXXI. DOWER. N „. 01* FOKM. PAGE Petition by widow for the admeasurement of dower 775 403 Verification of foregoing petition 776 403 Notice by heirs, requiring widow to demand dower 777 403 Petition by heir or owner for the admeasurement of dower 778 403 Notice of application for dower, to be served with copy of petition 779 404 Petition for appointment of guardian 780 404 Order appointing guardian 781 404 Order for admeasurement of dower 782 405 Oath of commissioners 783 405 Report of commissioners 784 405 CHAPTER XXXII. ENTRIES AND MANIFESTS. CHAPTER XXXIII. ESTRATS. Notice to be delivered to town clerk 785 407 Notice of sale 786 407 Certificate of fence-viewer 787 407 Notice of sale of animals straying on the highway 788 407 CHAPTER XXXIV. EXCISE. Storekeeper's application for a license 789 408 Certificate to character 790 408 Storekeeper's bond 791 408 Justification of sureties 792 408 Acknowledgment 793 409 Storekeeper's license 794 409 Innkeeper's petition 795 410 Proof of signatures 796 410 Innkeeper's bond 797 411 Innkeeper's license 798 411 CHAPTER XXXV. EXTRADITION. Affidavit to arrest fugitive from another State 799 413 Warrant by the governor, for surrender 800 413 Commitment by United States commissioner, under extradition treaty 801 414 Warrant by secretary of state, for extradition 802 41 4 CHAPTER XXXVI. FENCES AND FENCE- VIEWERS. Decision of fence-viewers as to value of fence, and portion to be maintained by an owner who has previously let his lands lie open 803 415 Decision as to proportion of division fence to be maintained 804 416 xxvi CONTENTS. or FORM. Appraisement of damage in case of neglect te keep fence in repair 805 416 Notice of wish to remove portion of division fence 806 416 Permit by fence-viewers 807 416 Appraisement of damage by cattle 808 416 Certificate that sheep were killed by dogs 809 417 CHAPTEE XXXVn. FERRIES. Application for a ferry license 810 418 Notice, to owner of lands, of application 811 418 Affidavit of service 812 418 Recognizance 813 419 License for a ferry 814 419 CHAPTEE XXXVIH. FORECLOSURE. Notice of sale under power in mortgage " 815 423 Another form ; the whole mortgage being due on default in interest_ 816 424 Notice by assignee, etc 817 424 Affidavit of publication 818 425 Affidavit of affixing notice in county clerk's book. 819 425 Affidavit of posting of notice 820 425 Affidavit of service of notice 821 426 Affidavit by auctioneer to the fact of sale 822 426 CHAPTEE XXXIX. GIFTS. CHAPTEE XL. GUARANTIES. Guaranty of payment of note 823 428 Of payment of bond 824 428 Of collectibility 825 428 Of rent 826 429 Given to stop legal proceedings 827 429 Of performance of contract 828 429 CHAPTEE XLt. GUARDIAN AND WARD. Petition for appointment of guardian of a minor of the age of four- teen 329 430 Consent to be annexed 830 430 Affidavit as to property, to be annexed 831 430 Bond of guardian , 832 431 Affidavit to sufficiency of surety 833 431 Letters of guardianship 834 431 Petition for appointment of guardian of a minor under the age of fourteen 835 432 CONTENTS. xxvii iro. OF FOHM. PACK Verification of petition 836 433 Consent to be annexed 837 433 Petition by guardian for allowance out of ward's estate 838 433 CHAPTEE XLII. HABITUAL DRUNKARDS. Complaint and petition of wife, etc., for notice forbidding sale of liquor 839 434 Notice to dealer, forbidding sale 840 435 Designation of drunkard, and notice to dealer by overseers of the poor 841 435 Notice to overseer by justice 843 435 Execution against drunkard 843 435 Execution against overseers 844 436 Revocation by overseers 845 436 CHAPTEE XLIH. HIGHWAYS. i. 4PPOINTMENT OF OFFICERS AND ASSESSMENT OF LABOR, ETC. Bond of commissioners 846 438 Approval 847 439 Appointment of commissioner to fill vacancy 848 439 Order dividing town into road districts 849 439 Appointment of overseer to fill vacancy 850 440 List of persons to be assessed 851 440 List of non-residents' lands 852 440 Assessment of highway labor , 853 441 Additional assessment by overseer 854 443 Appeal by non-resident ■. 855 443 Notice to commissioners, of the appeal 856 443 Notice of non-residents' lands assessed 857 442 Complaint for refusal to work 858 443 For not furnishing team 859 443 Summons upon foregoing complaints 860 444 Return of constable 861 444 Conviction 862 444 Warrant for collection of fine 863 444 List of non-residents' lands and unpaid assessments 864 445 Affidavit thereto 865 445 Annual account of overseer 866 445 Affidavit thereto 867 446 Annual account of commissioners 868 446 Notice of application for additional appropriation 869 447 Complaint of overseer's neglect of duty 870 447 Security for costs of prosecuting 871 447 Assessment of additional persons 872 448 Appeal from assessment 873 448 [I Proceedings to lay out, alter or discontinue roads. Application to lay out new highway, with consent of lnnd owner 874 448 Order thereon 875 448 Application to alter highway, with ( onsent 876 449 Order thereon 877 449 Application to lay out. new highway without consent 878 449 sarrai CONTENTS. NO. OF FORM. PAGE Order thereon 879 449 Affidavit of posting 880 450 Oaths of freeholders 881 450 Certificate of necessity 882 450 Notice to occupant of land 883 450 Order laying out the road 884 451 Order refusing to lay out the road 885 451 Agreement as to damages 886 451 Release of damages 887 452 Application for assessment of damages 888 452 Order appointing commissioners to assess 889 452 Notice' of appointment 890 452 Oath of commissioners 891 453 Oath of witnesses '. 892 453 Assessment of damages 893 453 Notice of reassessment 894 453 Certificate of drawing of jury 895 454 Summons to jurors 896 454 Verdict 897 454 Certificate thereto 898 455 Order describing an old highway 899 455 Determination of controversy between two towns 900 455 Order laying out highway on line between two towns 901 455 Application to discontinue road 902 456 Oath of freeholders 903 456 Certificate of propriety of discontinuing 904 456 Orders thereon 905-6 456-7 Appeal therefrom 907 457 Appointment of referees 908 457 Notice of hearing 909 457 Decision of appeal 910 458 Notice to remove fences .' I 911 458" III. Encroachments. Order to remove fences, etc 912 458 Notice for same 913 459 Denial of encroachment 914 459 Precept to summon jury 915 459 Notice of hearing 916 459 CHAPTER XLIY. HOMESTEADS. I. Entry op public lands por homesteads. Application to secure a homestead 917 461 The same ; by absent soldier or sailor 918 461 Certificate of register 919 4(33 Affidavit of applicant for homestead 920 462 II. Exemption prom execution for debt. Notice of design to hold homestead exempt 921 463 Acknowledgment of the foregoing 9J2 463 Clause in a deed securing exemption 923 463 Waiver of exemption 924 463 Oath of jurors summoned to appraise homestead 925 463 Finding of the jury, setting off part of the land ., 926 464 The same ; where the property cannot be divided 927 404 Notice of the foregoing to the debtor 928 464 CONTENTS. xxix CHAPTEE XLV. HUSBAND AND "WIFE. „„. OF FORH, PAGE Articles of separation 929 465 CHAPTEE XLVI. IMPRISONED DEBTORS. I. Proceedings by creditors to compel assignments by DEBTORS IMPRISONED IN CIVIL CASES. Petition by a creditor 930 467 Affidavit to be annexed 931 467 Order for creditors to appear 932 467 Notice to be annexed 933 468 Affidavit by creditor who unites in tlie petition 934 468 Order that an assignment be made 935 468 II. Voluntary assignments by debtors imprisoned in civil CASES. Petition by a debtor 936 469 Affidavit to be indorsed 937 469 Order to bring the prisoner into court 938 469 Order that assignment be made 939 470 Assignment 940 470 Discharge 941 470 HI. Debtors confined for crimes. Affidavit on applying for appointment of trustees of estate . 942 471 Appointment of trustees 943 471 Application of a person committed for non-payment of a fine. 944 471 CHAPTEE XLVTI. INCOME TAX. Return of income 945 473 CHAPTEE XLV1II. INSANE PERSONS. I. Inquisition and appointment of committee. Petition for a commission of inquiry 946 476 Order that a commission issue 947 477 Commission of inquiry as to lunacy, idiocy or habitual drunkenness 948 477 Precept requiring the sheriff to summon a jury 949 478 Notice to lunatic, idiot or drunkard of executing commission. 950 478 Warrant to produce the alleged insane person 951 479 Subpoena to testify before commissioners 952 479 Inquisition of lunacy, idiocy or habitual drunkenness 953 479 Return of the commission to be indorsed thereon 954 480 Order confirming the inquisition, and appointing committee. 955 480 Bond of committee 956 480 Approval of bond by the judge 957 481 Commission to the committee of an insane person 958 481 II. Custody of indigent lunatics. Information of lunatic before justices of the peace 959 482 xxx CONTENTS. NO. OF FORM. PAGE Warrant to confine a lunatic 960 483 Warrant to bring lunatic before magistrate 961 4^2 Order sending lunatic to the asylum 962 483 Petition to county judge for examination 963 483 Affidavit of physicians 964 483 Subpoena to examine in regard to lunacy 965 483 Certificate of county judge < 966 484 CHAPTEE LXIX. INSOLVENCY. Petition for discharge 967 485 Affidavit to the insolvent's residence 968 486 Affidavit of a petitioning creditor 969 486 The same ; by a copartner 970 486 Affidavit of residence of the creditors 971 487 Schedule of insolvent's debts 972 487 Inventory of assets 973 487 Affidavit of the insolvent to his proceedings 974 488 Order requiring creditors to show cause 975 488 Notice for publication 976 489 Affidavit of publication 977 489 Notice for service on creditors 978 489 Affidavit of service 979 490 Order directing assignment to be made 980 490 Assignment by insolvent 981 490 Certificate that it has been made 982 491 Discharge 983 491 Oath of assignee 984 492 Notice to creditors, etc ' 985 492 Petition after action commenced, or pending proceedings 986 493 CHAPTEE L. INSUKANCE. Immediate notice of loss 987 494 Preliminary proofs 988 495 Certificate of magistrate ! 989 496 Schedule of property, and appraisal 990 497 CHAPTEE LI. INTEREST; Table, showing interest per month or year. 991 498 Table, showing interest per day '. 992 498 CHAPTEE LII. JUSTICES OF THE PEACE. Certificate of election ggg ^gg Supervisor's notice of drawing !'..'!.' 994 499 Certificate of the drawing ..'.'.' ' . 995 499 CONTENTS. xxxi CHAPTEE LIII. LANDLORD AND TENANT. I. JNOTICES. OF FORM. PASa Notice to terminate a lease •. 996 501 Notice to quit, by landlord, to tenant from year to year. . . 997 501 Notice to quit, by tenant from year to year, to landlord . . . 998 501 Notice to tenant to quit in one month (under the statute) . 999 503 Notice to quit in fifteen days (where lease reserves right of re-entry) 1000 502 II. Proceedings to dispossess. Affidavit by landlord to obtain possession of deserted . premises 1001 502 Notice to tenant who has deserted premises 1002 503 Notice to deliver possession on default in rent 1003 503 Affidavit to remove a tenant at will 1004 503 Affidavit of holding over after expiration of term 1005 503 Affidavit to remove tenant for non-payment of rent 1006 504 Summons to tenant to show cause 1007 504 Affidavit of service 1008 504 Warrant to dispossess after expiration of lease • 1009 505 "Warrant to dispossess tenant at will or at sufferance, after notice 1010 505 Warrant to dispossess, on default in rent 1011 506 Keturn of officer 1012 506 Affidavit of denial by tenant 1013 506 Precept to summon a jury 1014 506 Warrant to dispossess, after verdict against the tenant . . . 1015 507 III. Forcible entry and detainer. Complaint 1016 507 Affidavit 1017 507 CHAPTEE LIV. LEASES. Landlord's certificate of renting 1018 509 Tenant's certificate of hiring 1019 510 Security for rent 1020 510 Landlord's certificate, tenant not to underlet nor occupy for business 1021 510 Tenant's certificate in same case 1022 511 Provision that tenant may surrender if premises become un- tenantable 1023 511 Provision as to repairs 1024 511 Provision for forfeiture and damages 1025 512 Tenant's certificate pledging his chattels on the premises as security 1026 512 Security for rent and performance of covenants 1027 512 Short form of lease 1028 512 The same ; with provisions as to occupancy, subletting and fire. . 1029 513 Another form ; with provision for re-entry and reletting, tenant to pay water-tax and fire-risk, and have privilege of renewal .... 1030 514 Indenture of lease 1031 515 Landlord's certificate of letting farm with stock and tools, with .tenant's certificate of same J 1032 517 Lease of mill ; with proviso susperr!ing rent on its .ceasing to run. 1033 5W Lease of a manufactory, etc., for making cements 1034 518 Lease, by tenants In common, of wharf, machinery, etc., with covenants for repairs, and proviso for determining the term, on notice 1035 520 xxxn CONTENTS. NO. OF FORM. PAGE Mining lease 1036 522 Covenant not to assign, etc 1037 522 Covenant to renew 1038 522 Covenant to buy fixtures at a valuation 1039 523 The same; another form ' 1040 523 Stipulation for renewal by indorsement 1041 523 Proviso as to re-entry, with waiver of notice 1042 524 Lease for lives at a nominal rent 1043 524 Underlease 1044 525 Ground lease, twenty-one years, with covenants to build, and for renewals 1045 525 Renewal lease 1046 529 Lease by a municipal corporation for a fair, lessees to build 1047 530 Covenants in a farm lease on shares 1048 531 Surrender of a lease indorsed thereon 1049 531 CHAPTEE LY. LEGISLATION. Notice of application to legislature 1050 533 Petition for enactment of a law lOll 533 Remonstrance against a pending bill 1052 533 CHAPTER LVI. LETTERS OF CREDIT. General letter of guaranty 1053 534 General letter of credit and guaranty 1054 534 Special letter 1055 534 CHAPTER LVLT. LICENSES. CHAPTER LViri. MANUFACTURING COMPANIES. Certificate of incorporation for business within the State 1056 536 The same ; for business to be carried on wholly or partly without the State 1057 536 Acknowledgment 1058 536 CHAPTER LIX. MARRIAGE AND MARRIAGE SETTLEMENTS. Marriage license 1059 538 Short form of solemnization by magistrates 1060 538 Marriage certificate 1061 538 ' Ante-nuptial settlement 1062 539 CHAPTER LX. MECHANICS' LIEN. Notice of lien 1063 541 Verification 1064 541 CONTENTS. XXXin CHAPTEE LXI. MINING AND OIL COMPANIES. „„. OF FORM. FAOB Certificate of association if mining corporation 1065 542 Acknowledgment of the same 1066 543 Certificate of attorney-general 1067 543 Certificate of association of an oil company 1068 543 Certificate of business and of capital paid in 1069 544 CHAPTEE LXII. MORTGAGES. Short form 1070 547 Another form to secure note 1071 547 Mortgage, with interest and insurance clause 1072 547 Mortgage on lease 1073 549 Mortgage on building lease to secure advances 1074 551 Mortgage to secure purchase-money 1075 554 Mortgage to secure indorser 1076 554 Mortgage to secure an unliquidated demand 1077 554 Mortgage in exercise of a power of appointment 1078 555 Stipulation in a mortgage to trustees, that it shall be purely collateral 1079 555 Stipulation as to paying off in advance 1080 556 CHAPTEE LXIII. NATURALIZATION. Declaration of intention 1081 557 Certificate by clerk 1083 558 Oath of applicant for naturalization 1083 558 Proof of residence and good behavior 1084 558 Certificate of citizenship 1085 559 Affidavit of resident alien to enable him to hold real property. . . 1086 559 CHAPTEE LXIY. NOTARIES. CHAPTEE LXV. NOTICES. CHAPTEE LXYI. OATHS. Oath taken upon the Evangelists 1087 561 Oath taken by uplifting the hand 1088 561 Affirmation 1089 561 Oath or affirmation of witness 1090 561 Another form 1091 563 Oath of a town officer 1092 562 Oath of allegiance required from practitioners in the United States courts 1093 56£ C xxxiv CONTENTS. CHAPTEK LXVII. PARTNERSHIP. wo. I. GENERAL PARTNERSHIP. or r0EM - »*«« Articles of copartnership n commercial business 1094 565 Articles of copartnership in hotel business. 1095 567 Articles of copartnership between lawyers 1096 567 The same ; where one intends to retire in favor of the other. 1097 568 Articles of voluntary association, for carrying on a news- paper * 1098 569 Limit of amount to be drawD out by partners 1099 571 Another form 1100 571 Provision for increase of capital 1101 571 Provision as to departments of service 1103 572 Restriction on the power of majority 1103 572 Provision as to liquidation by sale at auction 1104 572 Stipulation to refer disputes to arbitration ' 1105 572 Provision for offer to buy or sell 1106 573 Provision for dissolution on notice 1107 573 Provision that a retiring partner shall not carry on trade or disclose secrets 1108 573 Agreement to continue the partnership ; indorsed on the articles 1109 573 Notice to determine a partnership 1110 574 Memorandum of dissolution indorsed on the articles 1111 574 Advertisement of dissolution 1112 574 Advertisement of a partner's retiring 1113 574 II. Limited or special partnerships. Certificate of formation of limited partnership 1114 575 Affidavit of payment of capital 1115 575 Designation of newspapers for publication 1116 575 Affidavit of publication, by printer of newspaper 1117 575 Certificate of continued use of firm-name 1118 576 CHAPTEE LXVIII. PATENTS. Petition for a patent for an invention 1119 578 • General form of specification for a new machine 1120 579 General form of specification for an improvement upon an existing machine 1121 581 Example of a specification for an improvement in the steam-engine. 1122 581 Oath by a.citizen : 1123 582 Oath by an alien who has taken steps to become naturalized .... 1124 582 Petition for a patent for a design 1125 582 Specification for a design 1126 583 Oath by a citizen 1127 584 Oath by an alien who has taken steps to become a citizen 1128 584 Amendments to specification 1129 584 Appeal to examiners in chief from decision rejecting application. 1130 585 Surrender of a patent for reissue 1131 585 Oath to application for a reissue 1132 586 Disclaimer by an assignee 1133 586 Caveat 1134 587 Deposition to be used in contested cases in the Patent Office 1135 588 Certificate to be annexed by magistrate 1130 589 Superscription to be written on the eivelope containing the deposition 1137 590 CONTENTS. xxxv CHAPTEE LXIX. PENSIONS. KOj f. ARMY. PENSIONS. °* koem. PiOE Invalid's application for pension 1138 593 Widow's application . . * 1139 594 Guardian's application on behalf of mintr children 1140 595 Mother's application : 1141 595 Guardian's application on behalf of orphan sisters 1142 596 a. Navy pensions and prize-money. Invalid's application for pension 1143 597 Widow's application 1144 597 Guardian's application on behalf of minor children 1145 597 Mother's application 1146 598 Guardian's application on behalf of orphan sisters 1147 598 Application for prize-money 1148 598 CHAPTEE LXX. PETITIONS. Petition to Congress 1149 600 To the governor of a State.. . ,i 1150 600 To a court 1151 600 ' To a judge of a court .- 1152 600 CHAPTEE LXXI. POOR LAWS. . Application to compel a person to support a poor relative 1153 601 Notice to the relative, of application 1 154 602 Warrant to seize the goods of an absconding father, husband or mother 1155 602 Return of overseer 1156 602 Order by the sessions 1157 602 Notice from qne town requiring overseerB of another to support pauper 1158 603 Notice contesting alleged settlement 1159 603 Decision by the superintendents as to the settlement of a pauper. 1 1 60 603 Notice that pauper will be supported at the expense of a town. . 1161 604 Justice's order for temporary relief of a pauper 1162 604 CHAPTEE LXXII. POWERS OF ATTORNEY. Short form 1163 606 General form, with power of substitution and revocation 1164 606 Power to collect debts 1165 607 Power to collect rents 1166 607 Power to receive dividends, etc 1167 607 Power to receive a legacy 1168 607 Power to transfer stock 1169 608 Power to sell vessel 1170 608 Power to manage real property 1171 608 Power to sell and convey land 1172 608 Power to mortgage land 11 73 609 Power to renew lease and sell the term 1174 609 Power to make partition 1175 COD xxxvj CONTENTS. NO. OF FORM. FAGB Power to effect insurance 1176 610 Power to carry on business 1177 610 Anotherform 1178 610 The same; a fuller form 1179 611 Power to collect army or navy claim 1180 612 General custom-house power 1181 613 Special custom-house power 1182 613 Confirmation of attorney's act 1183 614 Power to several to act together, or either one separately 1184 614 Power to several jointly 1185 614 A power of attorney to two with provision for death, absence or refusal 1186 614 Substitution of attorney 1187 615 Revocation of power of attorney 1188 615 CHAPTEE LXXIII. PRE-EMPTJON. Declaratory statement for cases where, at the date of the law, the land claimed was subject to private entry 1J.89 618 The same ; where the land was rendered subject to private entry since the date of the law 1190 618 Affidavit required of pre-emption claimant 1191 619 CHAPTEE LXXIV. PRIVATE WAYS. Application for a private road ' 1192 620 Notice to be given by the commissioners to the owner of land. . . 1193 620 Certificate of necessity 1194 620 Order by the commissioners laying out a road through improved land 1195 620 CHAPTEE LXXV. PROMISSORY NOTES. Negotiable promissory note 1196 621 Non-negotiable note 1197 622 Stock note 1198 622 CHAPTEE LXXVI. PROTESTS. I. Protests of bills and notes. Certificate of protest 1199 623 Certificate of service of notice 1200 623 Certificate of protest ; when the maker, etc., cannot be found. 1201 624 Notice of protest of note 1202 624 Notice of protest of bill for non-acceptance 1203 624 Notice of protest for non-payment 1204 624 II Marine protests. Notation of protest 1205 625 Protest extended before the same notary ,...,.... 1206 625 Protest extended before another notary 1207 626 CONTENTS. xxxvil CHAPTEE LXXVII. RECEIPTS. f General receipts. or ro'uH. nan. General receipt for money 1208 628 For chattels , 1209 628 For papers 1210 628 Receipt for money paid by a third person 1211 629 Receipt for money on behalf of a third person 1212 629 Form for indorsing a receipt on a written instrument 1213 629 IL Receipts for particular objects. Receipt on account generally 1214 629 Receipt for a quarter's rent 1215 629 For interest on a bond 1216 629 For part of the principal of a bond 1217 629 For payment for professional services 1218 629 For money to be paid over 1219 630 For money to be disbursed. 1220 630 For money to be repaid 1221 630 For papers to be safely kept and restored 1222 630 HI. Receipts in full. In full of a particular demand 1223 630 In full of all demands 1224 631 CHAPTEE LXXVIII. RECOGNIZANCES. Short memorandum of recognizance 1225 631 Formal recognizance 1226 631 CHAPTEE LXXTX. RELEASES. General release of all demands 1227 633 Mutual general release 1228 633 General release sometimes required by an award 1229 633 Special release 1230 634 Release by a ward on coming of age, to his guardian 1231 634 Release by one partner 1232 634 Release of one of several partners or joint debtors 1233 635 Release of lands from the lien of a judgment 1234 635 Release of lands from a legacy charged thereupon by will 1235 635 CHAPTEE LXXX. RELIGIOUS CORPORATIONS. Certiflcatb of incorporation of religious society 1236 636 The same ; in the case of a Protestant Episcopal Church 1237 637 Certificate of election 1238 638 Triennial report of a religious corporation 1239 638 Petition of trustees for leave to sell or mortgage real property . . 1240 639 Order for leave to mortgage or sell 1241 639 CHAPTEE LXXXI. SATISFACTION-PIECES, Satisfaction of judgment 1242 640 Satisfaction of justice's judgment 1243 640 Satisfaction of mortgage 1244 640 Satisfaction of mechanics' l'en 1245 641 xxxvui CONTENTS. CHAPTER LXXXH. SCHOOLS; „ ™ RH . PiGB Order altering school districts 1246 642 Order erecting a new district 1247 642 Consent of trustees indorsed on order 1248 642 Notice of first meeting in a new school district 1249 642 Ordinary notice of district school meeting 1250 642 Tax list for collection of moneys raised for building a school-house. 1251 643 Warrant to be attached to tax list 1252 643 Rate bills for sums to be paid for instruction or for fuel 1253 643 Renewal of warrant 1254 643 Collector's notice to pay taxes 1255 644 Return of the collector 1256 644 Notice of levy and sale by the collector 1257 644 CHAPTER LXXXHI. SEALS. CHAPTER LXXXIV. SEARCHES. Search for deeds, etc 1258 645 County clerk's search . , 1259 646 Search for judgment in United States courts 1260 646 Loan commission search 1261 647 Tax search 1262 647 CHAPTER LXXXV. SERVICE (AND PROOE OF). Sheriff's certificate of service 1263 647 Affidavit of personal service 1264 648 CHAPTER LXXXYI. SHIPPING ARTICLES. General form 1265 649 CHAPTER LXXXYH. STAMPS. d^es 1266 652 CHAPTER LXXXVIII. SUBSCRIPTION PAPERS. Subscription for a building , 1267 660 Subscription to the support of a clergyman 1268 660 Subscription to end rw a college 1269 pg] CONTENTS. xxxlx CHAPTEE LXXXIX. SUPERVISORS. 90. OF FORM. PAGE Appointment to fill vacancy 1270 602 Certificate to correctness of accounts 1271 QQ2 CHAPTEE XC. TAXES. Notice of completion of assessment : 1272 663 Affidavit to reduce tax on real estate 1273 663 Affidavit to reduce tax on personal estate 1274 663 Oath of the assessors to the assessment roll 1275 663 Notice by supervisor to collector, of the amount of taxes 1276 664 Bond of "collector 1277 664 Approval by supervisor 1278 664 Warrant for collection of taxes 1279 664 Collector's notice 1280 665 CHAPTEE XCI. TOWNS. Call for a special town meeting 1281 666 Notice of intention to propose resolution to build new town-house 1282 666 Notice to supervisors, of resolution to raise money for new town- house .. . 1283 667 Resolution of the board of supervisors 1284 667 Division of a town into election districts, or alteration of the districts 1285 667 Notice of supervisor or clerk calling meeting to fill vacancy 1286 667 Appointment of an inspector of elections to fill a vacancy 1287 667 Notice of acceptance of resignation of a town officer 1288 668 Affidavit to be attached to an account presented for audit 1289 668 Certificate of town auditors 1290 668 Abstract of claims presented to the town auditors for audit 1291 668 CHAPTER XCn. TRUSTS. Declaration of trust in personal property 1292 670 Declaration of trust in lands 1293 670 CHAPTEE XCIII. TURNPIKE COMPANIES. Articles of association 1294 671 Notice that the books are open for subscription 1295 672 Affidavit of directors as to subscription 1296 672 Application to supervisors to lay out road 1297 672 Notice of application to supervisors 1298 673 Consent of land owners to use of highway 1299 673 Release of right of waj , by supervisor and highway commissioners. 1300 673 CHAPTEE XCIV. WARRANTS. CONTENTS. CHAPTEE XOV. WILLS. PAGE I Wills and special clauses. or F0RM - Shortform 1301 676 A will bequeathing legacies, and appointing residuary legatee 1302 676 A will of real and personal estate 1303 677 Pecuniary legacy 1304 678 Legacy of' furniture 1305 678 Legacy of dress and ornaments to wife 1306 678 Legacy of furniture, etc., to wife, during life or widowhood. 1307 678 Legacy of furniture to he divided amongst children. 1308 678 Legacy of a debt 1309 678 Legacy of a share under another person's will 1310 679 Bequest of jewels, etc., to wife, and of estate in household effects for life or widowhood 1311 679 Bequest of the good-will of a business 1313 679 Legacies to children with directions for investment 1313 679 Legacy to an infant to be paid to his father 1314 680 Legacies to executors 1315 680 Pecuniary legacy to a married woman 1316 680 Bequest in trust for unincorporated society 1317 680 Bequest to a corporation 1318 680 Bequest on condition 1319 681 Direction that legacies shall be paid, free from duty 1320 681 Direction that legacies be paid in full, in priority to others. 1321 681 Declaration that legacies shall not be in satisfaction of debts. 1322 681 Provision that if legatee dies the legacy goes to his executors. 1323 681 Declaration that advancements be deducted from shares of estate 1324 681 Declaration that advancement shall not be in satisfaction of portions 1325 682 Authority to executors to defer calling in a debt 1326 682 Bequest of an annuity to be purchased ■. 1327 682 Direction as to payment of annuities 1328 682 Bequest of fund with power of appointment 1329 682 Devise to son on his attaining twenty-one, with power to trustees to apply rents and profits during minority 1330 683 Devise to executors in trust, with power to sell, etc 1331 684 Power to arrange and compromise 1332 684 Directions as to winding up testator's partnership business. 1333 684 Clause concerning disputes 1334 685 A clause releasing debts due 1335 685 Appointment of executors 1336 685 Attestation clause describing execution 1337 686 Attestation according to the laws of England 1338 686 n. Codicils. Codicil adding a new provision 1339 686 Codicil appointing a trustee and executor in the place of a deceased trustee and executor appointed by the testator's will 1340 686 Codicil revoking the appointment of one of trustees and executors, and appointing a new one in his place 1341 687 Codicil appointing an additional trustee and executor 1342 687 HI. Instructions for execution according! to the laws op THE VARIOUS STATES, ALPHABETICALLY ARRANGED. ABBOTTS' FORMS. CLERK'S AND CONVEYANCER'S ASSISTANT. CHAPTEE I. ABANDONMENT. In cases of Marine Insurance, after a constructive total loss, the insured may relinquish to the insurers his interest in the thing insured, so as to enable him to claim for a total loss. This act is termed Abandonment. It is made by giv- ing notice thereof, either orally or in writing, (a) If in writing, no particular form is required ;(&) but it must be explicit, and should specify the particular cause of the abandonment, (c) It cannot be either partial or conditional, (d) The notice must be given within a reasonable time after information of the loss, (e) Once given, it is irrevocable, (/) unless the insurers refuse to aocept it or consent to a revocation ; (g) but it may become of no effect, if the information , of loss proves unfounded. (A) 1. Short Form „ 1 2. Abandonment of vessel and cargo, with assignment, power of attorney, and cove- nant for further assurance 2 1. Short Form, (t) [Address.] [Bate.] Understanding that the bark F., on her voyage from M. to N., has been compelled to seek the port of 0. in distress, where she arrived, we hear, with several feet of water in her hold, (J) and the cargo was landed and (a) 2 Pars. Mar. L., 396; 2 Levi Com. L., (/) 2 Pars. Mar. £., 412 ; 2 Leoi Com. 159. But if given by parol, it is the more Z., 166. important that it should be express, so that (g) RadelirT». Coster, JJuffm., 98. there shall be no doubt of the intent. Par- (A) Dickey®. Am. Ins. Co., 3 Wmd.,B58. meter v. Todhunter, 1 Gamp., 541. (i) This form is according to McCono- (b) Comegys v. Vasse, 1 Pet. U. S., 198. chie v. Sun Mut. Ins. Co., 26 N. Y., ill. (a) Suydain «. Marine Ins. Co., 1 Johns., (j) The particular cause of loss must be 181. stated, and the abandonment cannot be (d) lb. ; Am. onlm., 1149. sustained upon a cause not stated. Suy- («) Smith v. Steinbach, 2 Cai. Gas., 158. dam v. Marine Ins. Co., 1 Johns., 181. 1 ABBOTTS' FORMS. Abandonment. found very'seriously dam aged to more than one half the valve, (fr) we there- fore hereby abandon to you two hundred and eighty hogs-beads of sugar, valued at $85 per hhd., insured by you under our open po cy, No. 29,179, for $23,800, and shall claim for a total loss. (J) Yours, &c, [Signature] # 2. Abandonment of Vessel and Cargo, with Power of Attorney and Cove- nant for Further Assurance. To all to whom these presents may come, greeting : Wheeeas, we, A. B. and C. T>., of the city of , in the State of , caused to be insured by the Insurance Company, [here state the insurance — e. g., thus :] lost or not lost, the sum of dollars, to wit: the sum of dollars on the ship M. N". and appurtenances, and the sum of dollars on her cargo, from to one or more ports in , and at and from either of them to , or her first port of discharge in the United States, as by a policy, numbered , will more fully appear ; and whereas, the said ship, whilst she was sailing on her voyage from to , on or about the day of , last past, [here state cause of loss — e. g., thus .-] was overtaken by a violent storm and gale of wind, by which the vessel was foundered and sunk with her said cargo, and thereby was, and ever since has been, and now is totally lost to us, the aforesaid A. B. and 0. D. Now, therefore, know ye, that we, the aforesaid A. B. and CD, do hereby abandon to the said Insurance Company such proportion of the said ship and cargo, and of our interest therein, as the said sum of dollars by them insured bears to the whole vessel and cargo. And we do hereby constitute and appoint G. H., Esq., president of the said Insurance Company, our true and lawful attorney in our names, but for the use of the said company, and at their costs and charges, to claim, sue for, recover, and receive such proportion of the said vessel and cargo as is hereinbefore by us abandoned. And we, the said A. B. and C. D., do hereby for ourselves, our executors and administrators, covenant ;md agree, to and with the said company, that we, our executors and administrators, shall and will, at all times hereafter, at the request, and at the costs and charges of the said Insurance Company, make, seal, execute, acknowledge, and deliver all and every such further and other conveyances and assurances for the better conveying and assuring to the said company the proportion of the said vessel and cargo (it) It is now held essential that the (0 Further instruments of assignment, notice of abandonment should indicate * nch M " re re f e "ed to in the succeeding .. . ,. n „_,.. j.» _„„, *!,„„ „ form, are not essential. An abandonment, that the loss amounts to more than one- .... , . , ' , „ , , ,. _, , . _, rightly made and accepted, transfers the half the value. McConochxe ■„. Sun interest of the insured. The law gives to Mutual Ins. Co., 26 iV. T., ill; revers- it all the effect which the most accurately ing, 3 JBosw., 99. drawn assignment would accomplish. Comegys v. Vasse, 1 Fet. U. S., 198. ABSTRACTS OF TITLE. Instructions fur Drawing Abstracts of Title. hereinbefore by us abandoned, and all and every such farther and other letter or letters of attorney for enabling the said company, at their own charges, to ask, demand, sue for and recover the said proportion of the said vessel and cargo, as to them, the said company, shall seem reasonably necessary. In testimony whereof, we have hereunto set our hands and seals, this day of , a. d., one thousand eight hundred and A. B. [Seal] 0. D. [Seal.] CHAPTEE II. ABSTRACTS OF TITLE. An abstract of title is a document presenting in a connected form the sub- stance of the various instruments affecting the ownership of real property. It is the appropriate means of laying before one who contemplates buying the property in question, the history of the title which the seller proposes to convey.(a) (a) In England, abstracts have an im- portance in conveyancing, which, in the United States, they have never yot ac- quired. There are well-settled rules gov- erning the duties of parties to real prop- erty transactions, relative to the prepara- tion aDd verification of the abstracts ; and the art of preparing these documents is far advanced, and has been the subject of several distinct works. It appears there to be considered as implied in ordinary contracts for the sale of real property, that the seller will, before the time fixed for the completion of the contract, fur- nish to the buyer evidence of the suffi- ciency of the title he proposes to convey. Bee Gardnor's (William) Directions for Drawing Abstracts of Title: Lond., 1840. Harper's (S.) Practical Hints: Lond., 1829. Lee's (J. Y.) Treatise on the Evi- dence of Abstracts of Title to Real Prop- erty : Lond., 1848. Moore's (Henry) In- structions for Preparing Abstracts of Titles : Lond., 2d ed., republished in Philadelphia Law Library, 1858. Pres- ton's (Richard) Essay on Abstracts of Title, 2d ed. : Lond., 1824; New Yrrk. 1828, 3 small vols., 8vo. He must cause an abstract to br pre- pared and furnished to the buyer, giving him an opportunity to verify it by com- parison with any original deeds in the seller's possession or otherwise, as cir- cumstances may admit; and until this is done, the buyer is not bound to accept a deed, or pay purchase-money. Upon the buyer, however, devolves the labor or expense of verifying the statement fur- nished ; of ascertaining that it correctly states the original deeds, etc., and deter- mining that the title proffered is ono which he is satisfied to accept. In the United States, many circum- stances — such as the comparative youth- fulness, so to apeak, of our land titles, the very general extension and com- pleteness of systems of recording deeds, the moderate values of landed property, and the characteristic inclination of our people for sales and exchanges, have pro- vented any such necessity for these ab- stracts as has arisen in English practice. We know of no American works on the subject until the appearance of Curwen's (Maskcll E.) Manual upon the Searching of Records and the Preparation of Ab- stracts of Title to Real Property. Cincin- nati : Clarke & Co., 1865. This is a small ABBOTTS' FORMS. Abstracts of Title. Time of Commencing. — When an abstract is to be prepared, a, preliminary question is, at what date the search shall commence. Upon theory, the chain of conveyances should be traced back to some date anterior to the time from which adverse possession is, by force of the Statute of Limitations, equivalent to a perfect title. But in applying this rule, a large allowance is evidently necessary for the exceptions which the statute makes in favor of infants, luna- tics, married women, and other persons under a disability to sue. In England, where the limits of the statute are fixed at forty years, the practice requires that titles should be traced back for sixty years ; and this rule may be con- sidered as desirable in the older States of our Union, except so far as varia- tions in the time prescribed for adverse possession to quiet the title, may modify it. In the Western States generally, and wherever lands have been settled under grants from the Federal Government, an abstract is sufficient which traces the .title back to the patent granted by the United States. But it is very frequently the case that a client is satisfied to take the title of some owner for granted, knowing that it has been pronounced gqod in the courts, or bears an unquestioned reputation, and instructs the conveyancer to commence his search at the conveyance by that owner. Where this is intended, the abstract should state in the caption the instruction given, in order that the conveyancer may appear to take no responsibility for the anterior period. Facts not Matter of Record. — There are many facts affecting title to lands which are not necessarily evidenced by any documents or records subject to the conveyancer's inspection. Hence an abstract may be full — that is, may state every important portion of all instruments involved, and may exhibit a good title — and yet there may exist facts which create a defect. Marriage may have created an undisclosed right of dower ; alienage a liability to escheat ; or death have caused the land to descend ; yet nothing appear upon the record to indicate the fact. So it may be that the seller is kept out qtf possession by an adverse claimant ; in which case, in several of the States, he is disabled by statute from conveying.(6) And there are other similar cases. No absolute duty rests upon the conveyancer to elicit facts of this description. He should make such inquiry as the record suggests and the circumstances admit. When inquiry is made as to some fact of this description, it is usual and convenient to annex to the abstract the affidavit of the informant upon the matter in question. and inexpensive work, but is quite com- American law of conveyancing. The prehensive enough for the subject. It system, so universal in Ameriea, of relates more particularly to the couveyan- recording deeds, whereby public notice ring law of Pennsylvania, Ohio, Ken- is given of almost all transfers of real tucky, Indiana, Illinois, Iowa, and' Kan- property, has tended strongly to diminish Baa, but much of its contents is of gen- the necessity for the use of abstracts, eral application, and it is well adapted to And we understand the American rule to be of service to conveyancers throughout be, that where the memorandum of the the Union. contract of sale contains no provisions It has aided us much in the preparation expressly requiring the seller to furnish, of the chapter in the text. one, he is not bound to do so ; but the The volume is announced by Messrs. eontract is satisfied on his part by the Clarke & Co., as the pioneer of a series tender of a competent deed, on the con- of hand-books of practical law, which tract day, if the title of the seller is ac- they have in preparation. tually perfect. To relieve from payment In places where land values are rela- of the price, the buyer should show some tively important, or where titles have be- defect in the title, and not .merely that come complicated, they are used ; but we the claim of conveyances was not made believe their uw is regulated rather by known to him. convenience and courtesy of' parties than (i) See, in New York, 2 Rev. Stat., 691, by any distinct recognition of the Eng- § C ; in Kentucky, 1 Stant., 278, 226 ; in lish rules above stated as a part of the Indiana, 1 (fan. & B., 261. ABSTRACTS OF TITLE. Abstracts of Title. Ord-er and Arrangement. — The object of the counsel in- preparing an ab- stract is to present a statement of every fact, and an epitome of every deed, will, or other document or record, upon which the validity of the title depends ; which, while free from all unnecessary details, shall answer all reasonable in- quiries, and shall be sufficiently methodical and lucid in its order and arrange- ment, to enable a qualified person to form his opinion upon the chain of title as he proceeds from point to point in reading. It is obviously impossible to give forms which can be followed as guides, so much depends on the circum- stances of the individual case ; but the outline of an abstract presented below illustrates the method employed. At the outset occurs a caption, which states the name of the person whose title is presented, and describes the property which is the subject of examina- tion, ft is convenient to accompany this description with a map or diagram of the lot, and of any surrounding landmarks referred to throughout the paper. Then follow the various deeds, wills, etc., through which the title is deduced ; and these, if the chain is sufficiently simple, are best 'arranged in chronologic order. Where, however, one portion of the property is derived from one source, and another portion from another, it is convenient to trace the title to one portion down to a point where both are found to belong to one owner, then to go back and trace the title of the residue down to the same point, and then, from that time, to trace the title of the whole, down to the date of inquiry. The various documents abstracted should be numbered in their order, to assist reference. At the end of the list of transfers, is placed such certificate as the counsel thinks it expedient to give, as to the completeness of the title. And to the whole are appended such official searches, and other paper proofs that the land is free from other encumbrances and liens, as the nature of the case requires. No. 3. General Form, of Abstract of Title. Abstract of the Title of X. Y. Z. To premises fronting upon street, in the city of New York, and described as follows: Beginning at a point on the southerly side of Fifty- first street, distant one hundred and fifty feet east of the easterly side of the Third Avenue ; running thence east- erly along Fifty-first street fifty feet; thence southerly and parallel with said avenue, one hundred feet and five inches to the centre line of the block; thence westerly and paral- lel with Fifty-first street, fifty feet ; thence northerly and parallel with Third Avenue, one hundred feet five inches to the place of beginning. This parcel of land comprises two city lots, both of which were many years ago embraced in what is known as the Old Elm Farm, which was conveyed, some time prior to 1836, to Messrs. A. B and 0. D. I am in- structed to assume their title as good at the date of the conveyance first mentioned below. The title to the two lots continues united until 1844, when they were separately conveyed, as appears by the deeds marked VII. and XI. respectively. ABBOTTS' FOEMS. Abstracts of Title. By the deeds marked X. and XIII. they were subsequently both vested in Q. E., from whom the title of Mr. X. Y. Z. is deduced. I. A. B., and 0. D., and E. D. his wife, to E. F. Deed dated 30th June, 1836. Ee- oorded, 9th July, 1836, in Liber '356 of Convs., p. 529. Oonsid., $7,600. Conveys all that piece or parcel of land, known as the Elm Farm, situated upon both sides of the Third Avenue, in the city of New York, and bounded on the east by the road called the Old Boston Post-road ; on the south, by lands formerly owned by H. K., deceased ; on the west, by lands belonging to the corporation of the city of New York, usually called the Common ; and on the north, in part by land owned by S. B., and in part by land owned by B. B., containing acres, more or less. Warranty against grantors and persons claiming under them. Deed duly acknowledged. Wife separately examined. It appears, by an affidavit of K. D., in the possession, of J. L. M., attorney at-law, a copy of which is annexed to this abstract, that A. B. was neve married. II. E. F. with G. H. and K. L. Agreement for sale of premises, dated 5th June, 1839. Eecorded in Liber 371 of Convs., p. 153. Con- sid., $17,000. Agrees to convey same premises, employing same description. E. F. died 3d August, 1840, leaving nine children — viz., Mary Jane, wife of I. J., Eliza Ann, John, Henrietta, Caroline Matilda, Emily, "William, Thomas, and Charlotte Amelia. I. J. was, on 7th March, 1841, appointed guardian of eight infant or minor children of E. F. On the 23d March, 1841, the Court of Chancery ordered the said minors, by their guardian, to convey the said premises to Gr. H. and K. L., pursuant to agreement. in. Eliza Ann, John, Henrietta, Caroline Matilda, Emily, William, Thomas, and Charlotte Amelia F., by I. J., their guardian, to G. H. and K. L. Deed dated 14th July, 1S41. Be- . corded, 29th July, 1841, in Liber 420 of Convs., p. 221. ABSTRACTS OF TITLE. Abstract of Deed. Of Will. Keoites agreement of June 5, 1829 (No. II., above), death of E. P., ap- pointment of I. J. as guardian, and order of Court of Chancery above men- tioned, and in consideration of premises conveys eight undivided ninths of Elm Farm, by same description as in No. I. No covenants. IV. I. J., and Mary Jane his wife, to G. H. and K. L. Deed dated 26th July, 1841. Re- corded, 29th July, 1841, in Liber 420 of Convs., p. 225. Conveys one undivided ninth of Elm Farm, by same description as in No. I. ; and with same recitals. No covenants. Messrs. G. H. & K. L. caused to be prepared and filed in the Register's office a map of this tract, according to a survey by Daniel Ewen, city surveyor. It is in a tin case, and numbered 126. The premises in question are designated upon this map as lots 22 and 23. Will of K. L. Dated February 25, 1842. Proved October 20, 1842. Recorded in Liber 90 of Wills, p. 307. Devises all the real property of the testator, mentioning, among other lands, one undivided half interest in the lands known as the Old Elm Farm, and more lately surveyed and laid out in lots by Daniel Ewen," city surveyor, unto A. L. and B. K., his executors, in trust to sell the same, and with the proceeds to defray certain debts and legacies. It appears, by recitals in a codicil to this will, that Annette, wife of K. L., died a year or two previous to himself. VI. "1 G. H., and Mary his wife, and A. L. , Deed dated Aprfl lg) 184g E(J _ and B. K., executors of K L., [ corded: April a7> 1843j in Liber 447 to of Convs., p. 265. Consid., $2,000. M. N. Conveys four lots, distinguished on a map made by Daniel Ewen, city- surveyor, of four hundred lots, formerly composing Elm Farm, and owned by G. H. and K. L., as numbers 20, 21, 22, and 23, bounded as follows- ABBOTTS' FORMS. Abstract of Deed, Of Mortgage. Commencing at a point on the southerly side of Fifty-first street, distant one hundred feet east of the easterly side of the Third Avenue ; run- ning thence southerly along the rears of lots numbered 19, 18, 17, 16, and 15, on said map, one hundred feet five inches to the centre line of the block ; thence easterly and parallel with fifty-first street, one hundred feet; thence northerly and parallel with Third Avenue, one hundred feet and five inches to the southerly side of Fifty-first street ; thence westerly along the south- erly side of Fifty-first street, one hundred feet to the place of beginning. Covenants against grantors' acts. "Wife separately examined. From this point, the titles to the two lots composing the premises in ques- tion were for a time held separately. I proceed first with the title to the westerly lot, number 22. VII. M. N., and E. J. N. his wife, to O. P. Deed dated June 9, 1844. Re- corded June 10, 1844, in Liber 459 of Convs., p. 26. Consid., $900. J Conveys all that lot, piece, or parcel of land in the ward of the city of New York, distinguished on a map made by Daniel Ewen, city surveyor, of four hundred lots of land in the city of New York, owned by G. H. and K. L., as number 22, and bounded as follows: On the north by the southerly side of Fifty-first street ; on the west, by the rears of lots numbered 19, 18, 17, 16, and 15, on the said map; on the south, by the centre line of the block ; and on the east, by lot numbered 23 on the map; containing in breadth in front and rear twenty-five feet, and in length on .ast side one hundred feet five inches, be the same more or less. Full covenants. Wife separately examined. VIII. O. P. to M.N. Mortgage dated June 9, 1844. Re- corded June 10, 1844, in Liber 80 of Mortg's, p. 209. To secure $500 of the purchase-money in the last-mentioned deed. Mortgages tho lot conveyed by the last-mentioned deed, employing same description. ABSTRACTS OF TITLES. Abstract of Proceedings in Foreclosure. In Chancery, before the Vice-Chancellor. Afterwards, Supreme Court of the State of New York. IX. -1 M. N. against O. P. and Mary his wife, G. C, T. ^ Foreclosure. J. O., D. R., and the F. and J. Railroad Company. 1845, Aug. 6. — Bill filed to foreclose mortgage last mentioned ; Nov. 8, answer of defendant, G. C. ; Nov. 28, answer of 0. P. and wife; Dec. 29, replication filed. Notice of hearing for third Monday of July, 1846, and proof of service on attorneys who have appeared. Order to close proofs, March 4, 1846, and proof of service. 1846, July 17. — Decree of sale to be made by one of the masters in Chancery. 1850, Nov. 11. — Judgment of general term Supreme Court affirming de- cree of sale, and directing sale to be made by A. F. N., as referee. 1850, March 26. — Order taking bill as confessed as against T. J. 0., D. R., and the F. and J. R. R. Co., made and filed as of 1st July, 1846. Report of sale contains sales map referring to the Ewen map already mentioned, on which the premises to be sold are designated as lot No. 22. X. A. F. N., Referee, I Deed dated 20th March, 1850. Re- to corded 25th May, 1850, in Liber 506 q R of Convs., p. 21. Recites decree of 1846 and order of 1850, and conveys lot No. 22, as de- scribed in the conveyance marked VII., above. I now return to trace the title to the easterly lot No. 23, from the con- veyance to M. N., numbered VI., above. XI. M. N., and E. J. N. his wife, i Deed dated June 20, 1844. Re- to [ corded June 26, 1844, in Liber 459 g_ T of Convs., p. 275. Consid., $925. Conveys all that lot, piece, or parcel of land in the ward of the city of New York, distinguished on a map made by Daniel Ewen, city sur- veyor of four hundred lots of laud, in the city of New York, owned by G. 10 ABBOTTS' FORMS. Abstract or Deed. H. and K. L., as No. 23, and bounded as follows : On the north, by the southerly side of Fifty-first street ; on the west, by lot numbered 22 on said map; on the south, by the centre line of the block; and on the east, by lot numbered 24 on said map, containing in breadth in front and rear twenty-five feet, and in length on each side one hundred feet five inches, be the same more or less. Full covenants. Wife separately examined. It appears that S. T. died intestate prior to Feb. 1, 1853, leaving his sons, James, Henry, and William, his heirs-at-law. I am reliably informed that neither of the sons was married at the date of the next-mentioned deed. XII. Ellen T., widow of S. T., deceased, and James T., Henry T., and Wil- Deed dated Feb. 1, 1853. Ee- liam T., heirs-at-law of S. T. j. corded April 29, 1853, in Liber 530 to I of Convs., p. 451. Oonsid., $1. U. V. J Eecites the deed of last above mentioned, numbered XL. and the death of S. T., leaving the parties of the first part, his widow and heirs-at-law, and conveys the same lot as is described in the deed numbered XL, above, together with the buildings thereon. Habendum in trust to sell and convey the same as soon as an advantageous price can be obtained, and invest the proceeds in dividend-paying stocks, for the benefit of Mrs. Ellen T., for her life, with remainder to the three sons. Mrs. T. is made a party for the purpose of relinquishing her right of dower. xm. H. V. | Deed dated August 16, 1854. Ee- to \ corded Sept. 1, 1854, in Liber 540 Q. R. of Convs., p. 307. Consid., $8,000. Eecites last-mentioned deed, and conveys same premises by same _e- scription. Habendum in fee. Covenants against grantors' acts only. A mortgage for $5,000, part of the purchase money, recorded in Liber 159 of Mortgages, p. 200, has been discharged of record. From this point, both lots will be considered together. Q. E. appears to have been an alien ; but any right in these lots which would have arisen to the people of the State, by escheat, was released (o his son, by the following act: ABSTRACTS OF TITLES. 11 Abstract of Statute. XIV. An A ot to release the interest of the people of this State in certain lands in the city of New York, conveyed by N. J. and U. V. to Q. E., and which escheated, on his death, to his son, James Henry R. Passed June 4, 1855, by a two- . thirds vote. Session Laws, ch. 210, p. 360. Enacts that all the right, title, interest, and estate of the people of this State, acquired by escheat, upon the death of Q. R., late of the city of New York, in and to the premises described in the heading to this abstract, are released to his son, James Henry R. I find no evidence of the alienage, marriage, or death of Q. R., except such inference as may be drawn from the above act. But assuming those facts to be true, it is evidently possible that his widow may be still living. Inasmuch as, by laws of 1845, oh. 115, the wife of an alien is declared entitled to dower, and as the releasing act above mentioned purports to convey only the interest of the people, I am of opinion that the wife of Q. R., if she survived him, was dowable in these lands. It cannot well be contended that the act of release above mentioned, though later in date, overrides the provisions of the act of 1845. I find no release or transfer of this right. XV. James Henry R., and Mary Julia his wife, to V. W. Deed dated April 14, 1861. Re- • corded April, 1861, in Liber 610, Convs, p. 426. Consid., $12,000. Conveys the premises in question, with the buildings thereon, by the de scription employed at the head of this abstract. Habendum in fee-simple. Full covenants. "Wife separately examined. XVI. V. W. to James Henry R., and Mary Julia his wife. Mortgage dated April 14, 1861. Recorded April 18, 1861, in Libei 360, Mortg's, p. 212. To secure $9,000 of the purchase-money mentioned in the conveyance last above specified. Mortgages the premises in question, and buildings 12 ABBOTTS' FORMS. Acknowledgment (and Proof) of- Deeds. thereon. Contains the usual interest and insurance clauses. Bond for pay ment of principal in five years from date, with interest semi-annually. XVII. V. "W., and Jane his wife, to X. Y. Z. Deed, dated June 20, 1865. Re- corded June 20, 1865, in Liber 680, Oonvs., p. 310. Consid., $5,000. Conveys the premises in question, with the buildings thereon, by the de- scription employed in the heading to this abstract. Habendum in fee, but subject to the mortgage last above mentioned, which grantee assumes to pay. Covenants of seizure ; of power to convey; for quiet possession ; against encumbrances, except said mortgage; for further assurance; and for warranty. From an examination of the transfers above mentioned, and the affidavit and searches annexed, I am of opinion that X. Y. Z. is seized of a good estate, in fee-simple, in the premises in question, subject only to a right ot dower in Mrs. Q. R., if living, and to the mortgage above mentioned marked [Date.] [Signature of counsel] [Here may follow any affidavit or exhibit referred to in the abstract, and the official certificates of the register of deeds, county clerk, and other proper officers, showing the premises free from encumbrances, except as disclosed in the abstract. For forms of requisitions for these certificates, see chapter "Searches."] CHAPTEE III. ACKNOWLEDGMENT AND PROOF OF DEEDS. A debd is said to be acknowledged, when the person executing it comes before a public officer who is authorized for the purpose, and admits to him that it is a genuine instrument, and voluntarily made, and the officer certifies the fact in proper form upon the deed. A deed is said to be proved, when a witness comes before the officer and testifies to its genuineness, and the officer certifies thereto in the same way. These officers are usually justices of the peace, commissioners of deeds, notaries public, and judges of courts. The certificate of the officer is commonly designated the Acknowledgment, or the Proof. The mode and the effect of thus authenticating a deed of lands is governed by the law of the State or Territory where the lands lie, not by that of the ACKNOWLEDGMENT ( F DEEDS. 13 General Principle. place where the parties may be when it is executed. For obvious reasons of convenience, however, it has recently been enacted in the statutes of several of the States, that a deed of lands therein, executed without the State, but within the United States, may be executed or acknowledged, or both, pur- suant to the law of the place of its execution, with like effect as if it were done according to the law of the place of the property. Where a deed is executed and acknowledged without the State, in pursuance of such a statute, there must be entire conformity with the one law or the other, both as to the officer and as to the contents of the certificate. The laws of both States cannot be invoked to sustain an acknowledgment manifestly defective when tested by either, (a) General Principles. — The following remarks will illustrate the general principles of American law upon this topic. It will be observed that these principles are subject, however, to numerous local , exceptions, which, so far as they relate to the form of proceeding, are noticed at the head of the forms given for each State. In general, the function of acknowledgment or proof is twofold — to entitle the deed to be recorded, and to entitle it to be read in evidence in courts of justice, without further proof of its authenticity. The act is not essential to the bare validity of a deed, although it is almost indispensable to the security of a purchaser. But in Maryland, New Mexico, North Carolina, and Virginia, acknowledgment and record are necessary to pass the title, even as against the grantor ; and in Rhode Island deeds are void, except as between the parties and their heirs, unless acknowledged and recorded. (6) The deeds of married women are a common exception to the general rule. The laws of many of the States provide that a wife's deed is not valid unless, upon a private examination made separate from her husband, she acknowledges that she executed it without fear or compulsion. This is not, however, re- quired as to lands in Alabama, Indiana, Kansas, Maine-, Maryland, Mas- sachusetts, Vermont, or Wisconsin. In some of the States where it is re- quired as to married women resident within the State, it is dispensed with as to non-residents. This is so in the laws of Dacotah, Michigan, Minnesota, and Oregon. By the laws of New York, neither married women conveying their separate estate, acquired since the act of 1848, nor non-resident married women joining with their husbands in a deed, need be thus privately ex- amined. By the laws of Illinois, the private examination is dispensed with only in the case of residents without the State, over eighteen years of age. Where a deed is executed by an attorney in fact, the more common prac- tice is to have the power of attorney acknowledged or proved as the act of the principal, and to have the deed acknowledged or proved as the act of the attorney, and to have both recorded, (c) In a great many of the States it is the rule that proof, by the oath of one or more subscribing witnesses (except as to a married woman's execu- tion of a deed under the laws of those States which require her to be per- sonally and separately examined), is equivalent to an acknowledgment by the grantor in person. In a number of the States, however, no provision is made for proof by witnesses, except in case an acknowledgment cannot be procured. In one or two of the States, on the other hand, it is not the practice to ac- knowledge deeds at all, but always to prove them by witnesses. In most of the States it is the rule, that, a deed executed by several grantors should be acknowledged by or proved as to each one of them. An acknow- ledgment by one of them may suffice to get the deed on record, but the (a) Job ®. Tibbetts, 4 Gikn,,, H8 ; (c) In the statutes of Delaware there Adams v. Bishop, 19 Ms,, 3!)5 ; Mon- is a provision for acknowledgment by at- tag v. Linn, Id., 899 ; Farrell Foimdry torney, by virtue of a power either con- v. Dart, 26 Conn,., 876. tained in the deed or separate from it. (i) See also chapter of Deeds. Bee. Code (1852), 267. 14 ABBOTTS' FORMS. Instructions for taking 1 Acknowledgments, etc. omission of any acknowledgment by the others may raise doubts on the part of subsequent purchasers. It is, however, only those who convey or release some interest in the land who need unite in the acknowledgment. A grantee who executes the deed merely to bind himself by personal covenants, need not do so. Officers authorized to take acknowledgment or proof, are generally limited in the exercise of such authority to the place or district for which they are ap- pointed ; judges, courts, and clerks of courts being limited to the territorial jurisdiction of their tribunal, (d) The Forms. — Although as a general rule it is enough if the certificate shows a substantial compliance with the statute, and formal and verbal de- partures from the form and words of the statute are not regarded as fatal, (e) yet language of the same force and import must be used ; (/) and it is best to follow the words of the act so far as they can serve as a guide, and for the rest to pursue the methods of established precedents. Care is necessary on the part of the officer as to the form of the certificate which he signs, whether it be drawn by him or drawn by a party or attorney ; as he may perhaps be chargeable with damages resulting from the use of an insufficient certificate, (g) A mistake in the certificate may be corrected by the officer who made it, at any time afterwards during his term of office ; (hi except that where the statute makes the validity of the instrument depend upon the • record, he cannot amend his certificate after the deed has been recorded, a) In the following pages are given, under the names of the several States and Territories of the Union, forms for all ordinary cases, framed in this way, agreeably to the laws and the practice of their respective jurisdictions. As the laws of New York on this subject have been copied in several other States, and the practice there is well settled, we give among the forms for that State a large number adapted to peculiar cases, which will be found serviceable guides in framing certificates for similar cases in other States generally, (j) In respect to the use of the forms, it is the better practice in all cases to ■write the certificate upon the same paper on which the instrument is written ; although in some States the law or settled practice sanction a certificate upon a separate paper, firmly annexed. Any material erasures or interlineations in a conveyance should be noted previous to the execution, above the place where the witnesses are to sign ; and if not so noted, should be mentioned in the (d) It would exceed our present limits Clarice (Iowa), 413; compare Goode v. to unumerate the officers within and with- Smith, 18 Col., 81. out each State, who are authorized by its (g) Fogarty v. Finlay, 10 Cal, 239. laws to take acknowledgments and proof. (A) Jordan v. Corey, 2 Garter (Ind. ), 385. For a collection of the provisions of law on (i) Elliott v. Piersol, 1 Pet. S. 0., 328. this subject we must refer the inquirer to (_;') We desire to acknowledge our in- the forthcoming new edition of Mouvier's debtedness to Charles Nettleton, Esq., Law Dictionary, the article in which upon of the New York Bar, conveyancer, and a this subject is recent and complete. We commissioner for the various States and are indebted for advance sheets of it to Territories of the Un ; ion, for very import- the publisher, Mr. Geokge W. Childs, ant assistance in the preparation of these of Philadelphia. Thornton on Comeyan- forms. The resources of his library, ring, is also an excellent manual, present- which contains a rare collection of the ing the laws of the States very fully down Statute law of the whole country, and of to about the date of its publication, 2d his collection of manuscript certificates, edition, 1854. have been freely placed at < nr service ; and (e) Thurman v. Cameron, 24 Wmd,, 87 ; in addition to this, he has kindly offered Cavender v. Smith, 5 Clarke (Iowa), 159 ; us, personally, information and advice, Whil::ey v. Arnold, 10 Oal., 531. without which we should have been un- (/) Tiffany v. Glover, 3 67. Greene able to present so complete a series ot (Iowa), 887 ; V\ ickersham «. Reeves, 1 forms, as we trust this will be found. ACKNOWLEDGMENT OF DEEDS. 15 Instructions for Certifying. officer's certificate of proof or acknowledgment. The signature of the officer should be followed by his official addition or title. When the proof or ac- knowledgment of an instrument is taken in one State or Territory to be used in another, the venue of the certificate should designate that in which the proof or acknowledgment is taken ; and the body of the certificate should, ac- cording to the general usage, give the official title of the officer at full length ; and his signature, with his official seal, should be accompanied by his official title. Directions as to those matters of form in the execution of deeds, which the officer is commonly relied on for, are given at the head of the forms for most of the States ; and where it is not otherwise indicated, a wax or wafer seal, with some impression thereon, and two subscribing witn'esses, are proper. I. Oaths and affemations, administered orally to witnesses in taking ACKNOWLEDGMENT OB PEOOF. FAOH i. Oath of a subscribing witness, taken upon the Evangelists 20 5. The same, taken by uplifting the hand 20 6. Affirmation of subscribing witness 20 7. Oath of a witness to identity of party or subscribing witness, taken on the Evangelists 2C 8. The same, taken by uplifting the hand 21 9. Affirmation of witness to identity of party or subscribing witness 21 II. Certificates of acknowledgment and proof for the yarious States, etc. Alabama. 10. Acknowledgment 21 11. Proof by subscribing witness 21 / RKANSAS. 12. Acknowledgment by a grantor known to the officer 22 18. By a grantor not personally known 22 14. By husband and wife, of a joint deed of the wife's land 22 15. By the same, of a joint deed for the husband's land 23 16. Proof by subscribing witness 23 17. Proof by handwriting of grantor and subscribing witnesses 23 California. 18. Acknowledgment by one or more grantors known to the officer 24 19. The same, where wife joins 25 20. By a grantor not personally known to the officer 25 21. Proof by subscribing witness personally known to the officer 25 22. By one not personally known 26 Colorado. 23. Acknowledgment 28 24. The same, where wife joins 26 CONNECTICUT. 25. Acknowledgment 26 26. The same, of a deed by a corporation 27 Dacotah. 27. Acknowledgment 27 28. The same by husband and wife, where she resides in the Territory 27 29. Authentication of acknowledgment taken without the State 28 16 ABBOTT'S FORMS. Analysis of Chapter of Acknowledgments. PAGB Delaware. 30. Acknowledgment 28 81 . The same, of a deed by a corporation 28 Distkict of Columbia. 32. Acknowledgment 29 33. The same, where wife joins 29 Florida. 84. Acknowledgment 80 85. The same, by husband and wife 80 86. Acknowledgment before commissioner, of deed executed or acknowledged without the State, by grantor not personally known 30 87. Acknowledgment before judge in a city or county where there is no Florida commissioner : 31 38. Certificate of clerk to be annexed to the foregoing 81 Georgia. 89. Acknowledgment 31 40. The same, by husband and wife 32 41. Proof by subscribing witness 32 42. Acknowledgment or proof taken without the State by Georgia commis- sioner 32 Idaho. [Follow forms given for Nevada.] Illinois. 48. Acknowledgment within the State by a grantor personally known to the officer 1 83 44. The same, by husband and wife, where wife relinquishes dower 83 45. Acknowledgment within the State, where a grantor is not personally known 31 46. Acknowledgment without the State, where the - grantor is personally known 34 47. The same, where he is not personally known 35 48. Acknowledgment without the State, by husband and wife, where wife re- linquishes dower 35 49. By the same, of a conveyance of the estate of the wife 85 50. Acknowledgment without the State, by attorney in fact 86 51. Proof without the State, by a subscribing witness :. . . 86 52. The same, when the grantor and subscribing witnesses are dead or cannot be produced 36 53. Certificate of clerk to acknowledgment taken according to the laws of ■another State 37 INDI'-NA. 54. Acknowledgment '. 37 55. Declaration to bar dower of wife under age S7 Iowa. 56. Acknowledgment by a grantor personally known to the officer 38 57. By sheriff 88 58. Where the parties are not personally known 38 59. Proof by witness, where the grantor is dead or cannot be procured, or re- fuses to acknowledge 39 ACKNOWLEDGMENT AND PKOOF OF DEEDS. Kansas. [Follow forms given for Iowa.] Kentucky. 60. Acknowledgment within the State 80 61. The same, without the State in Louisiana. 62. Authentic act of sale, and wife's renunciat on 10 68. Acknowledgment of private act 41 Maine. 64. Acknowledgmen, 42 65. The same, by attorney in fact ' 42 66. The same, by corporation 42 Maryland. 67. Acknowledgment within the State 48 68. The same, by husband and wife 43 69. Acknowledgment taken without the State 43 70. Affidavit to bo affixed to mortgages of land and to mortgages or bills of sale of personal property 48 Massachusetts. 71. Acknowledgment within the estate 44 72. The same, by attorney in fact 44 73. Acknowledgment without the State 44 Michigan. 74. Acknowledgment within the State 45 75. The same, by husband and wife 45 76. Acknowledgment without the State 45 77. Acknowledgment of deed by a corporation 46 Minnesota. 78. Acknowledgment 46 79. Acknowledgment where a resident married woman joins her husband in the deed 46 80. Proof by subscribing witness....,..; 47 Mississippi. 81. Acknowledgment : 47 82. The sume, by husband and wife 47 83. Proof by subscribing witness 46 84. A uthentication of acknowledgment taken by a j udge without the State ... 48 Missouri. 85. Acknowledgment by grantor personally knewn to the officer 49 86. By grantor not personally known 49 87. By husband and wife, to extinguish dower 49 88. By the same, to convey wife's estate 50 89. Acknowledgment of conveyance by power of t.:torney 50 90. Proof by witness where grantor is dead, or cannot be procured, or refuses to, acknowledge 50 Nebraska. [Follow forms given for Iowa.] 2 18 ABBOTTS FORMS. Nevada. [Follow forms given for Califobni . .] New Hampshire. 91. Acknowledgment within the State , 51 92. Without the State 51 New Jersey. 93. Acknowledgment within the State, by a grantor known or identified 52 94. The same, by husband and wife 52 95. Of deed by a corporation 52 ,- 96. Of deed by an attorney 52 97. 'Proof by subscribing witness 53 98. Proof where witness is dead or cannot be obtained 53 99. Acknowledgment without the State 53 New Mexico. 100. Acknowledgment by a grantor personally known to the oflicer 54 101. By grantor not personally known 54 102. By husband and wife 54 New York. 103. Acknowledgment within the State, by grantor known to the officer 55 104. By one of several grantors known to the officer 55 105. By two or more grantors known to the officer '. 55 106. By grantor not known to the officer 55 107. By two grantors, one known and one not known 55 108. By five grantors, two known and three not known 5 172. The same, by husband and wife 76 173. Proof by witnesses 76 Texas. 174. Acknowledgment 77 175. Acknowledgment by wife, of deed by her husband and herself, of her sep- arate propwty 77 176. Proof by subscribing witness 77 Vermont. 177. Acknowledgment 78 178. Acknowledgment by agent of corporation 78 Virginia. 179. Acknowledgment 78 180. Acknowledgment by married woman 79 Washington Territort. 181. Acknowledgment 79 182. Acknowledgment by husband and wife . t 79 West Virginia. [Follow forms given for Virginia, except that one justice may take an ac- knowledgment.] Wisconsin. 188. Acknowledgment by a grantor known to the officer 80 184. By a grantor not known to the officer 80 I. .Oaths and affirmations administered orally to witnesses nr taking ACKNOWLEDGMENT OR PROOF OF DEEDS. 4. Oath of a Subscribing Witness, taken upon the Evangelists. "You do solemnly swear, that you will true "answers make to such ques- tions as shall be put to you in regard to the parties to the deed here shown to you. and the execution thereof. So help you God." 5. The same, taken by Uplifting the Hand. "You do swear, in the presence of the Everliving God, that you will true answers make to such questions as shall he put to you touching the parties to the deed here shown to you, and the execution thereof." 6. Affirmation of Subscribing Witness. "You do solemnly, sincerely, and truly declare and affirm, that you will true answers make to such questions as shall be put to you touching the parties to the deed here shown to you, and the execution thereof." 1. Oath of a Witness To Identity of Party or Subscribing Witness, taken on the Evangelists. " You do solemnly swear, that you will true answers make to such ques- tions as shall be put to you in regard to the identity of the parties [or of the subscribing witnesses] to the deed here shown to you. So help you God." ACKNOWLEDGMENT AND PROOF OF DEEDS. 21 Oaths, etc. Acknowledgment and proof for Alabama. 8. The game, T .ken by Uplifting the Hand. " You do swear, in the presence of the Everliving God, that you will true answers make to such questions as shall be put to you touching the identity of theparties [or, of the subscribing witnesses] to the deed here shown to you." 9. Affirmation of Witness to Identity of Party or Suhscribing Witness. "You do solemnly, sincerely, and truly declare and affirm, that you will true answers make -to such questions as shall be put to you touching the identity of the parties [or, "of the subscribing witnesses] to the deed here shown to you." ii. certificates of acknowledgment and proof fok the v a riots States, etc. Alabama. [Deeds are usually sealed ; but a scroll is a sufficient private seal. There should be two subscribing witnesses ; although, unless the grantor is a married woman, or cannot write, one is sufficient if the deed be acknowledged by the grantor. A married woman need not be privately examined. The statute forms given below state that the deed was executed on the day of its date. The courts hold, however, that this is not to be regarded as essential ; and that it will be enough, prima facie at least, if the date of the deed, and that of the certificate, show that the instrument was recorded within the time fixed by law.(A;)] 10. Acknowledgment.^,) State of Alabama, . County of . ( I, M. N". [stating also title of officer], hereby oertift, that A. B., whose name is signed to the foregoing conveyance [or other instrument], and who is known to me, acknowledged before me, on this day, that being informed of the contents of the conveyance, he executed the same voluntarily on the day the same bears date. Given under my hand, this day of , one thousand eight hundred and . [Signature and titled 11. Proof by Subscribing Witness.(m) State of Alabama,) County of . J I, M. N [stating also title of officer], hereby certify, that O. P., a sub- scribing witness to the foregoing conveyance [or other instrument], known to me, appeared before me this day, and, being duly sworn, stated that (k) Parsons v. Boyd, 20 Ala., If. 6'., 112, knowledgments, &c., taken without the and cases there cited ; Carter v. Chaul- State, except that, ii such case, it is well dron, 21 Id., 72; Lea u. Polk County for the officer to affix his soal, if he havo Co., 21 Ho"j>. V. S.,493. one. ' (I) This form and the following are (m) See note (I). To entitle a deed to giveaby satute. Code of Alabama (1852), probate, there must be two subscribing 'i79. The same ferns will serve for ae- witnesses. Code, § 1281. 22 ABBOTTS' FORMS. Acknowledgment of Deeds for Arkansas. A. B., the grantor in the foregoing conveyance [or, the person described in, and who executed the foregoing instrument], voluntarily executed the same in his presence, and in the presence of Q. R., the other subscribing witness thereto, on the day the same bears date; that he attested the same in the presence of the said A. B., and of said other witness ; and that such other witness subscribed the same as a witness, in his presence.(ra) Given under my hand, this day of , one thousand eight hundred and [Signature and title.] Arkansas. [A scroll or a durable impression on paper is sufficient as a private seal for a deed. Two witnesses are necessary, unless the grantor acknowledges the deed, which dispenses with the necessity of any witness. The certificate of the officer should be indorsed upon the deed, and must be attested under his official seal, if he have one.] 12. Acknowledgment by a Grantor Known to the Officer.{o) State op Alabama, ) County of . ( On this day of , in the year of our Lord one thousand eight hundred and , before me, M. N., an acting and duly commis- sioned justice of the peace, within and for the county of , in the State of Arkansas, appeared in person A. B.,* to me personally well known as the person whose name appears upon the within and foregoing deed of conveyance,! as the party grantor, and stated that he had executed the same for the consideration and purposes therein mentioned and setforth,(^) and I do hereby so certify. In testimony whereof, I have hereunto set my hand, as such justice of the peace, at the county of , on the day of , 18 . [Signature], J. P. 13. Acknowledgment by a Grantor Not Personally Known to the Officer. [As in the preceding form, substituting in place of the words between the * and the t the following :] who being personally unknown to me, was, by the oaths of O. P. and Q. R., witnesses duly sworn and examined by me as to his identity, proven to my satisfaction to be the identical A. B. whose name appears upon the foregoing deed of conveyance — . 14. Acknowledgment by Husband and Wife, of a Joint Deed of the Wife 1 * Land.{q) [As in Form 12 to the *, continuing thus:] to me personally well known as one of the parties grantor, and stated that he had executed the same for the consideration and purposes therein mentioned and set forth, and I do hereby so certify. (») As to the necessity of pursuing this (p) This reference to the consideration statute form, see Phipps v. McGehee, 5 and purposes is held essential. JacowaJ" Port., «8; Dolin v. Gardner, 15 Ala., 758. v. Gault, 20 Ark., 190. (o) This form is from Gould's Dig. (q) This and the three following forma (1858). are from GrM's Dig. (185S). ACKNOWLEDGMENT AND PKOOF OF DEEDS. 23 Arkansas. And I fukther oehtift, that on this day voluntarily appeared before me 0. B., wife to the said A. B., to mo well known(r) to be the person whose name appears upon the within and foregoing deed, and. in the absence of her said husband, declared that she had, of her own free will, executed the same, for the purposes therein contained and set forth, without compulsion or undue influence of her said husband. In testimony [etc., as in Form 12]. 15. Acknowledgment by Husband and Wife, of a Joint Deed for Husband's Land. [As in Form 12 to the t, continuing thus:'] as one of the parties grantor, and stated that he had executed the same for the consideration and pur- poses therein mentioned and set forth. And I ftjktheu certify, that on this day voluntarily appeared before me 0. B., wife to the said A. B.,.to me well known to be the person whose name appears upon the within and foregoing deed, and, in the absence of her said husband, declared that she had, of her own free will, signed and sealed the relinquishment of dower therein expressed, for the purposes therein contained and set forth, without compulsion or undue influence of her said husband. In testimony [etc., as in Form 12]. 16. Proof by Subscribing Witness. State of Abkansas, ) County of ■ S Be it kemembeeed, that on this day of , 18 , before me, M. N., an acting and duly commissionei. justice of the peace, in and for the county aforesaid *, personally appeared 0. P., one of the subscribing wit- nesses to the foregoing deed, to me personally well known, who, being by me first duly sworn, on his oath stated that he saw A. B., grantor in said deed, subscribe and seal said deed on the day of its date [or, that the said A. B., grantor in said deed, acknowledged to him, on the day of , 18 , that he had subscribed, sealed, and executed said deed], for the uses, purposes, and consideration therein expressed ; and that he and Q. B., the other subscribing witness, subscribed the same as attesting witnesses, at the request of the said grantor. In testimony [etc., as in Form 12]. IT. Proof of Handwriting of Grantor and Subscribing Witnesses. [As in the preceding form to the *, continuing thus :] personally came S. T. and U. V., and upon their oaths stated that the signatures of A. B., the grantor in the within and foregoing deed, and of O. P., a witness thereto, are genuine, and are in the handwriting of said A. B. and 0. P., respect- ively. In testimony [etc., as in Form 12]. (r) Or as in Form 13. 24: ABBOTTS' FORMS. Acknowledgment of Deeds. California. [A scroll is a sufficient seal, if the intent to affix it is expressed in the body of the instrument. Two witnesses are usual, but a deed which is acknow- ledged by the grantor does not require subscribing witnesses. The certificate may be annexed or indorsed ; and, if made by a judge or clerk, must be at- tested under his hand and the seal of the court ; if by an officer who has a seal of office, under such seal. Forms 19 to 20 were once prescribed by law as sufficient ;(«) but exact conformity is not essential. The two essential facts in an acknowledgment are the officer's knowledge, or the proof of the identity of the person, and the fact of his acknowledgment of execution, (t) In the case of an acknowledgment by a married woman, the statement that she was made acquainted with the contents of the conveyance, and the separate examination, are essential. («) By the present Codes (18T2), a seal and witnesses are not required]. 18. Short Forms now in Use. [ Venue.] On thi3 day of , in the year 187 , before me [name and title] personally appeared A. B., personally known to me [or, proved to me on the oath of ] to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. [If a married wjman, instead of the words, " and acknowledged to me, &c, sa 3 — described as a married woman, and upon an examination without the hearing of her husband, I made her acquainted with the con- tents of the instrument, and thereupon she acknowledged to me that she executed the same, and that she does not wish to retract such execution.] 19. Acknowledgment where a Wife Joins. Old Form, (w) State of , ) County of . J I hereby oebtxfy, that on this day of , 18 , personally ap- peared before me, M. K, a notary public [or, judge, or other title] in and (s) Laws of Cat., 1850-3, p. 514. strument was executed voluntarily, etc. (t) Henderson v. Grewell, 8 Gal., 581 ; 'I'he fact of acknowledging that it was and see Whitney v. Arnold, 10 Id... 531. so executed is » substantial requirement The statement that the identity of the of the statute. Bryan v. Kamirez, 8 Id., person was known or proved to the offi- 461. eer is essential, and its omission fatal to The words "freely and voluntarily" the effect of the recorded conveyan<"i, as are not essential. The voluntary execu" notice. Wolf*. Fogarty, 6 Cat., 224; Kel- tion will be presumed from the fact of sey v. Dunlap, 7 Id., 160. But a certifl- acknowledging the execution. Hender- cato that the party was known to him, son v. Grewell, 8 Id., 581. But see note is sufficient, though omitting the word (a), p. 38, infra. "personally." Hopkins v. Delaney, 8 (u) Pease v. Barbiers, 10 Id., 436. Id., 85. The words, " described in, and \v) If taken without the State, add, who executed," are not essential ; it is " In testimony whereof," etc. as in enough to Bay, " whose name is sub- Form 12. scribed to," etc. Henderson v. Grewell, (w) A deed affecting even the separate 8 Id., 58. property of a mrrried woman must be thus It is not enough to certify that the in- acknowledged. ACKNOWLEDGMENT AND PROOF OF DEEDS. 25 California. for the said county, the within-named A. B., and 0. B. his wife, * to me personally known to be the persons desoribed in, and whose names are subscribed to, the within [or, annexed] instrument, as parties thereto, and severally acknowledged that they severally executed the same, freely and voluntarily, for the uses ind purposes therein mentioned. And the said 0. B., having been by me i^rst made acquainted with the contents of such conveyance, acknowledged on an examination had by me, apart from and without the hearing of her husband, that she exeouted the same freely and voluntarily, without fear or compulsion, or undue influence of her husband, and that she does not wish to retract the execution of the same, (a) [Seal, if any.] Signature and title.] 20. Acknowledgment by a Grantor Not Personally Known to the Officer. [As in either preceding form, 18 or 19, substituting for the words, "to me personally known," etc., at the*, the following:] satisfactorily proved to me to be the person described in, and who executed the within [or, annexed] instrument as a party thereto, by the oath'of O. P., a competent and credi- ble witness, for that purpose by ine duly sworn; and he, the said A. B., acknowledged [etc., continuing as in such preceding form.] 21. Proof by Subscribing Witness Personally Known to the Officer. State of , ) County of . \ **• I heebbt oeetift, that on this day of , 18 , personally appeared before me, M. N., a notary public [or, judge, etc., or other title], in and for said county, O. P., who is a competent and credible witness,* and who is personally known to me to be the person whose mime is sub- scribed to the within [or, annexed] conveyance [or other instrument], as a witness thereto *^ and said 0. P., being by me duly sworn, stated on oath that he personally knew A. B., who executed the within [or, annexed] in- strument, and that he knew him to be the person described in, and whose name is subscribed to the same, as a party thereto ; and that on or about the day of , 18 , the said A. B., in the presence of said O. P., and in the presence of Q. R., the other subscribing witness, volun- tarily executed the same [or, to them acknowledged that he had freely and voluntarily executed the same], for the uses and purposes therein men- tioned; and that said O. P. thereupon subscribed his name thereto as a witness thereof, at the request of said A. B. {y), [and that such other wit- ness subscribed his name thereto, as a witness, in his presence.](s) [Seal, if any.] [Signature and title.] (y) Si e note (t), p. 38, Infra. "In TKSTmoNr whkkkof," etc., as in (xj It taki-.u without the State, acM, form 12. 26 ABBOTTS' FORMS. Acknowledgment of Deeds. 22. Proof by Subscribing Witness Not Personally Known to the Officer. [As in preceding form, substituting for the words between the * * the fol- lowing ;] and who is satisfactorily proved to me to be the person whose name is subscribed to the within [or, annexed] instrament, as a witness thereto, by the oath of Y. Z. Colorado. 23. Acknowledgment. Tereitoby of Colorado, ] County of Be it known, that on this day of , 18 , before me, the subscriber, personally came A. B., to me personally known as the same person described in, and who executed the foregoing instrument of writing, and acknowledged the execution thereof to be his free act and deed, for the uses and purposes therein mentioned. * Witness my hand and official 'seal, the day and year first above written. {Signature, title, and seal.] 24. The Same, Where Wife Joins. [Insert in the preceding form at the *.*] and at the same time personally appeared before me the within-named 0. B., wife of the said A. B., who being by me privately examined separate and apart from her husband, ac- knowledged that she signed, sealed, and delivered the said instrument of writing as her voluntary act and deed, freely and Without any threat, com- pulsion, or fear of her said husband. Connecticut. A scroll, or the word " seal," is a sufficient seal for a deed. There should be two subscribing witnesses. But there is no provision of law allowing proof by witnesses. Married women need not be separately examined. Deeds exe- cuted in another State or Territory may be executed and acknowledged there, in accordance with the laws thereof ; (s) but both execution and acknowledg- ment must be so. Execution in New York with but one witness, and acknow- ledgment there before a Connecticut commissioner, is insnfficient.(a)] 25. Acknowledgment. State of Connecticut, ) County of . J [Date.] Personally appeared A. B., signer and sealer of the foregoing instrument, and acknowledged the same to be his free act and deed, before me. [Signature and titled] («) Laws of Conn., 1862, ch. 8. (a) Farrell Foundry v. Dart, 26 Conn., 876 ; and see 19 Ml., 395, 899. ACKNOWLEDGMENT AND PROOF OF DEEDS. 27 Colorado. Dacotah. 26. Acknowledgment of a Deed of Corporation. State of Connecticut, ) County of . \ [Date.] Personally appeared A. B., who being duly authorized and appointed by vote of the directors of the said [naming the corporation], the agent of said company for the purpose of executing the foregoing instrument, acknow- ledged that he executed the same as the free act and deed of the said cor- poration, and as his own free act and deed, before me. [Signature and title.] i Dacotah. [Deeds executed without the State and within the United States may be executed according to the laws of the place of execution, and may be ac- knowledged before any officer authorized by the laws of the place to take ac- knowledgments. The laws do not provide for proving a deed by subscribing witnesses, except where the grantor has died, or departed from, or resides out of the Territory, in which case it may be proved by such a witness before any court of record in the Territory.] 27. Acknowledgment. Territory of Dacotah,) County of . j Be it remembered, that on this day of , 18 , before me, the subscriber, personally came A. B., to me personally known as the same person described in, and who executed the foregoing instrument of writing, and acknowledged the execution thereof to be his free act and deed, for the uses and purposes therein mentioned. In witness whereof, I have this day of 18 , made this cer- tificate and hereunto set my hand. [Signature and title.] 28. Acknowledgment by Husband and Wife, where Wife Resides in the Territory, (b) Territory* of Dacotah,) County of f Be it remembered, that on this day of ,18 , before me, the subscriber, personally came A. B., and 0. B. his wife, to me personally known as the same persons described in, and who executed the foregoing in- strument of writing, and acknowledged the execution thereof to be their free act and deed, tor the uses and purposes therein mentioned. And tlie said 0. B., being at the same time examined by me, separately, apart from her said husband, did acknowledge that she executed such deed freely and without any fear or compulsion from any one. In witness whereof, I have on this day of , 18 , made this certificate, and hereunto set my hand. [Signature and title.] (4) If she resides without the Territory, if she were sole. Laws of Dacotah, 2B9 the acknowledgment may be the same as (1862). 28 ABBOTTS' FORMS. Acknowledgment of Deeds. 29. Authentication of the Certificate of an Acknowledgment Taken Without the State.(c) [ 88. State op , County op Office of Clerk of the Court of I, O. P., clerk [or other proper certifying officer] of the court of , being a court of record of said county [or, district], do hereby certify that M. N., the person whose name is subscribed to the annexed certificate of acknowledgment, was at the date thereof such officer as he is therein represented to be; and that the undersigned believes the signature of such person subscribed thereto to be genuine ; and that the deed is exe- cuted and acknowledged according- to the laws of this State [or, Territory, or, district]. Witness my Land and seal of office, this day of ,18 . [Signature, title, and seal.] Delaware. [A scroll is a sufficient seal. It is usual to have two subscribing witnesses. Proof by witness may be made within the State only before the Superior Court.] 30. Acknowledgments^) State ox Delaware,) County of ) ' Be it ekmembeked, that on the day of , in the year of our Lord one thousand eight hundred and , personally came before the subscribers, two of the justices of the peace for county aforesaid. A. B., and 0. B. his wife, parties to this indenture [or, if it he not an in- denture, say, instrument], known to us personally [or, proved on the oath of M. N., of ] to be such, and severally acknowledged said indenture to be their act [and deed], respectively; and that the said 0. B., being at the same time privately examined by us apart from her husband, acknow- ledged that she executed the said indenture [or, instrument] willingly, with- out compulsion or threats, or fear of her husband's displeasure. Witness our hands, the day and year aforesaid. [Signatures and titles.]{e) (c) This is to be made by the clerk or ledgment only, or a private examination other proper certifying officer of a court only, is taken, the form will be varied ac- of record of the county or district within cording to the case. which the acknowledgment was taken. U) Where an acknowledgment is taken It is not necessary where the acknow- in a court, the authentication will be ledgment is taken by a Dacotah commis- under the hand and seal of the clerk or sioner. prothonotary ; if before the chancel- (d) This form is provided by statute lor or other officer, it will be under his lawt of Del., 267 (1852). J ? acknow- hand Dig., 182. ACKNOWLEDGMENT AND PROOF OF DEEDS. 31 Florida. Georgia. 37. Acknowledgment Before Judge, in a City or County where there is No Florida Commissioner. State of , ) County of . J Be it kemembebed, that on this day of , 18 , before me, M. N., the chief-justice [or, one of the judges, or, the presiding justice, or, the president] of the court of [naming any court of record having heal and clerk or prothonotary], which said court is a court of record, personally ap- peared at , wittin the jurisdiction of said court, A. B. [and 0. D.], to me known(i) to be the person [or, persons] described in, and who exe- cuted the foregoing instrument, and [severally] acknowledged the execution thereof to be his [or, their] free act and deed,- for the uses and purposes therein mentioned. [If a married woman joins, add private examination, as in Form 35, from the t to the end]. [Signature and title of judge.] 38. Certificate of Clerk to be Annexed to the Foregoing. State of , ) County of . j I, 0. P., clerk [or, prothonotary] of the court of , at , do hereby certify that M. N., the person whose name is subscribed to the an- nexed certificate of acknowledgment, was at the date thereof the chief- justice [or other judge] of said court, duly appointed as such, and that I verily believe the signature of his name subscribed thereto to be genuiue. Witness my hand and seal of office, this day of , 18 [Signature, title, and seal.' Georgia. [A conveyance of land must be sealed, (j) but an ink-scroll is sufficient as a private seal.iA;) A deed of lands which is not officially witnessed within the State, must be executed in the presence of two witnesses, who must sub- scribe as such ; and the certificate of proof by a witness must state that he saw the grantor deliver as well as sign.(Q] 39. Acknowledgment. State of Geokgia, ) gf County of ■ f Be it kemembebed, that on this day of , one thousand eight hundred and , before me, the undersigned [naming officer and title] personally came A. B., to me known to be the person described in, and who executed the foregoing [or, within] conveyance, and acknowledged the Bame to be his free act and deed. [Signature and title.] (») If not known, Btate proof of the (j) Keinhart v. Miller, 22 Geo., 402. Identity of the g intor by witness, as in (*) Williams v. Greer, 12 Id., 459. preceding form. (I) Doe v. Lewis, 29 Id., 45. 32 ABBOTTS' FORMS. Acknowledgment of Deeds. 40. Acknowledgment by Husband and Wife. State op Georgia. ) County of . f * S- Be it remembered, that on this dav of , IS , before me, the undersigned [naming officer and titlej, personally came A. B., and 0. B. his wife, to me known to be the persons described in, and who severally executed the foregoing [or, within] conveyance, and severally acknowledged the same to be their free act and deed. And the said C. B., on private ex- amination by me, acknowledged and agreed that she did, of her own free will and accord, subscribe, seal, and deliver the said conveyance, with an intention thereby to renounce, give up, and forever quit-claim to Y. Z., her right of dower and thirds, and all her other interest of, in, and to the ands or tenements therein mentioned. [Signature and title.] 41. Proof by Subscribing Witness.(m) State of Georgia, ) . County of . J Personally, oame before the undersigned [one of the justices of the peace in and for said county], M. N., merchant, who resides at ,(w) who, being duly sworn, deposeth and saith, that he saw A. B. sign, seal, and de- liver the within deed, for the purposes therein mentioned ; that deponent subscribed the same as a witness, and saw 0. P. do so likewise. [Signature of witness.] Sworn to and subscribed before me, this da> of , 18 . [Signature and title of officer.] 42. Acknowledgment or Proof Taken Without the State, by Commissioner for Georgia. State of ) County of . J The undersigned, commissioner of the State of Georgia, hereby certifies that [etc., as in other preceding forms, 39, 40, or 41]". Given under my hand and seal, this day of , 18 . [Seal.] [Signature ana title.] Idaho. TFollow forms given for Nevada.] Illinois. [A scrawl is a sufficient private seal for a deed. Two witnesses are usual, but an acknowledgment supersedes the necessity of witnesses. (m) This form is from Cobb's Stat, and F., dition and abode is requisite, where the 40*- proof is taken without the State. Cobb's («) The statement of the witness's ad- Dig., 394, 887. ACKNOWLEDGMENT AND PROOF OF DEEDS. 33 Illinois. A certificate of acknowledgment must state either that the party was per- sonally known to the officer, or proof of his identity by a credible witness. It is not enough for him to certify that he is " satisfied" of the identity, (o) A deed executed without the State, and within the United States, may be executed and acknowledged in accordance with the laws of the place of exe- cution, if certified by a clerk of a court of record to be so done, (p) But it must conform wholly to the laws of one State or to those of the other. It is not to be sustained by both laws combined. A certificate by a notary of another State should be under his official seal. (?)] 43. Acknowledgment Within the State, by a (Jranior Personally Known to the Officer. State of Illinois, ) _ „ > ss. County of . ) L, M. N., commissioner of deeds [or other authorized officer] in and for said county, in the State aforesaid, do hereby certify that A. B., personally known to me as the real person whose name is subscribed to the annexed deed, as having executed the same, appeared before me this day in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing, as his free and voluntary act, for the uses and purposes therein set forth. Given under my hand [and seal of office], this day of , a. d. 18 . [Seal, if any.] [Signature and title.] 44. The same by Husband and Wife, where Wife Relinquishes Bower. State of Illinois, ) County of . ) I., M. N, commissioner of deeds [or other authorized officer] in and for aid county, in the State aforesaid, do hereby certify that A. B., and C. B. * jiis wife, personally known to me as the real persons whose names are sub- scribed to the annexed deed, as having executed the same, appeared before me this day in person, and acknowledged that they signed, sealed, and de- livered the said instrument of writing, as their free and voluntary act, for the uses and purposes therein set forth. And the said C. B., wife of the said A. B., having been by me examined, separate and apart, and out of the hearing of her husband, and the contents and meaning of the said instru- ment of writing having been by me fully made known and explained to her ; and she also by me being fully informed of her rights under the Home- stead laws of this State, acknowledged that she had freely and voluntarily executed the same, and relinquished her dower to the lands and tenements therein mentioned ; and also all the rights and advantages under and by virtue of all laws of this State relating to the exemption of homesteads, (o) Shephard v. Carriel, 19 III., 318. as by supplying a certificate. Hurt e. (p) It seems that the conformity may McCartney, 18 Id., 129. be proved by producing J.ie laws, as well (q) Booth v. Cook, 20 Id., 129. 84 ABBOTTS' FORMS. Acknowledgment of Deeds. without compulsion of her said husband ; and that she does not wish to re- tract the same. Given under mv hand [and seal of office], this day of , a. d. 18 . [Seal, if any.] [Signature and title.] 45. Acknowledgment Within the State, ~by Grantor Not Personally Known to the Officer. [As in the preceding form to the *, continuing thus:] this day appeared before me in person, and was [or," were] proven to me satisfactorily to be the real person [or, persons] described in, and whose name is [or, names are] subscribed to the annexed deed, as having executed the same, by the oath of O. P., a credible witness, who, being by me duly sworn, did depose and say that he resided in , in the county of ; that he was ac- quainted with the said A. B. [and 0. B., his wife] ; and that he knew him [or, them] to be the same person[s] described in, and who executed the an- nexed deed. And thereupon the said A. B. [or, they severally] acknowledged to me that he [or, they] signed, sealed, and delivered the said instrument ol writing, as his [or, their] free and voluntary act, and for the uses and pur- poses therein set forth. [Add wife's examination, if she he a party, and end with, In witness, etc., as in the preceding form. 46. Acknowledgment Without the State, oy Grantor Personally Known to the Officer. (r) State op ) City and county of . J Be it eemembehed, that on the day of , in the year of our Lord one thousand eight hundred and , in the city [or, town] and county aforesaid, (s) before me, M. N., a commissioner, residing in said city [or, county], duly appointed a commissioner by the governor of the State of Hlmois, to take acknowledgment and proof of the execution of deeds and other instruments in writing under seal, to be used and recorded in said State, personally appeared A. B.,* who is personally known to ma to be the real person whose name is subscribed to the foregoing deed [or other instrument in writing, as the case may be], as having executed the same, and acknowledged that he had executed the same, for the uses and purposes therein expressed. i (r) This and the six following forms are for Illinois, of any proof or acknowledg- from the instructions as to aoknowledg- ment taken before him, or any oath oi ments, etc., prepared by the secretary of aifirniation administered by him, "shall State of Illinois, pursuant to law, for the specify the day on which, and the city, or guidance of commissioners. The last town and county, within which the same three we suppose to be suitable to simi- was taken or administered; and without lar cases within the State. said specification the said certificate shall (») The statutes of Illinois provide be invalid, inoperative, and void." Law that every jertificate of a commissione. of 111., Feb. 17, 1851. ACKNOWLEDGMENT. AND PEOOF OF DEEDS. 35 Illinois. [n witness whereof, I have hereunto set ray hand and affixed my official seal, as commissioner of the said State of Illinois, at my office, Seal.] in the city [or, town] of and State aforesaid, this day of , a.d.1 8 . [Signature.] Commissioner of the State of Illinois, for the city of 47. Acknowledgment Without the State, by Grantor Not Personally Known to the Officer. [As in preceding form to the * continuing thus:] who was proved to me, on the oath of O. P., a credible witness, to be the real person whose name is subscribed to the foregoing deed [or other instrument in writing, as the case may be], as having executed the same, and acknowledged that he had executed the same for the uses and purposes therein expressed. In witness [etc., as in preceding form]. 48. Acknowledgment Without the State By a Husband and Wife, when the Wife Relinquishes Dower. [As in Form 46 to the *, continuing thus:] and 0. B. his wife, who are personally known to me [or, who were proved to me, on the oath of M. N., a credible witness], to be the real persons whose names are subscribed to the foregoing deed [or other instrument of writing, as the case may he], as having executed the same, and acknowledged that they had executed the same for the uses and purposes therein expressed. And the said 0. B., wife of said A. B., being of lawful age, and having been by me, separate and apart from her said husband, examined, and the contents of said deed [or other instrument, as the case may he] fully made known and explained to her, acknowledged that she had executed the same, and relinquished her dower to the lands and tenements therein mentioned, voluntarily, and with- out compulsion of her husband. In witness [etc., as in Form 46]. 49. Acknowledgment Without the State by Husband and Wife, of a Con- veyance of the Estate of the Wife. [As in Form 46 to the *, continuing thus :] and 0. B. his wife, who are personally known to me [or, who were proven to me, on the oath of M. N.. a credible witness], to be the real persons whose names are subscribed to the foregoing deed [or other instrument of writing, as the case may be], as having executed the same, and acknowledged that they had executed the same, for the uses and purposes therein expressed. And the said 0. B., wife of the said A. B., being of lawful age, and having been by me, separate and apart from her husband, examined, and the contents of the said deed [or, instrument] having been made known and fully ex- plained to her, acknowledged that she had executed the same voluntarily and freely, and without compulsion of her husband, and that she does not wish to retract. In witness [etc., as in Form 46]. ABBOTTS' FORMS. Acknowledgment of Deeds. 50. Acknowledgment Without the State, by Attorney in Fact. [As in Form 46 to the *, continuing thus :] attorney in fact of 0. D., who Is personally known to me to be the person [or, who was proved to me, upon the oath of a credible witness, to be the person] whose name, as such attorney in fact, is subscribed to the foregoing deed [or other instrument, as the case may be], as on the part and behalf of 0. D., his said principal, having executed the same, and acknowledged that he had, as such attorney in fact, for and on behalf of his said principal, executed the same, for the uses ai.d purposes therein expressed. In witness [etc., as in Form 46]. 51. Proof Without the State, by a Subscribing Witness. [As in Form 46 to the *, continuing thus:] to me personally known to be a subscribing witness to the foregoing deed [or, who was proved to me, on oath of O. P., a credible witness, to be a subscribing witness to the forego- ing deed], who, after being duly sworn, according to law, did depose and say, that 0. D., whose name appears subscribed to said deed, is the real person who executed the same ; and that he, the said A. B , subscribed his name, as a witness thereto, in the presence of, and at the request of the said C. D.,(t) which is sufficient evidence to me of the execution of said deed. In witness [etc., as in Form 46]. 52. Proof Without the State, when the Grantor and Subscribing Witnesses are Dead or Cannot be Produced. [As in Form 46 to the *, continuing thus :] a competent and credible wit- ness, who, being duly sworn, according to law, did depose and say that he personally knew the handwriting of 0. D., the grantor in, and of M. K, the subscribing witness to, the foregoing deed, and that he well knew the sig- natures of each of them, having frequently seen them write [or state such other means of knowledge as the witness may have(u)], and that he believes the names of such grantor and subscribing witness to the deed aforesaid were thereto subscribed by the said C. D., the grantor, and M. N., the subscribing witness, respectively, which, to me, affords sufficient evidence of the due execution of said deed. In witness [etc., as in Form 46]. (<) It is the better practice to state in was agent of a corporation of which the the certificate that the witness subscribed grantors were directors, and that he had in the grantor's presence and at his re- often seen documents with their namo quest, though it is held not essential, subscribed thereto, and recognized by fob v. Tebbetts, i Oilm., 143. them as genuine, in the course of business («) Thus a statement that the witness transactions, is sufficient. Ibid. ACKNOWLEDGMENT AND PROOF OF DEEDS. 37 Illinois. Indiana. 53. Certificate of a Cleric to Acknowledgment Taken According to th* Laws of Another State. State of j County of . \ ss ' I, M. N., clerk of the court, a court of record of said State of , in and for said county of ,(u) do hereby certify that , the per- son before whom the foregoing acknowledgment [or, proof] was taken, was at the time thereof [here state title], duly commissioned and sworn, and to all whose official acts as such, full faith and credence is given, and that his signature to the foregoing certificate of acknowledgment [or, proof] is genuine, and that the within [or, annexed] deed [or other instrument] is executed and acknowledged according to the laws of the said State of .(w) In witness wheeeof, I have hereunto set my hand and affixed the seal of [Seal said court, this day of ,18 of court.] [Signature], Clerk. Indiana. [Private seals are abolished.(a:) One witness is sufficient ; and where a deed is acknowledged by the party, no witnesses are necessary. The form of ac- knowledgment below is given by the statute, and is sufficient, whether within or without the State. The certificate may be annexed or indorsed. It should be under seal, if the officer have an official seal ; and if the certificate is sealed, there is no need that the signature of the officer be authenticated by a clerk's certificate. No separate examination of a wife is necessary ,(y)] 54. Acknowledgment. State of , ) County of . J Before me, M. N, a judge, [or, justice, as the case may he] this day of , 18 , A. B. acknowledged the execution of the annexed [or within] deed, [or, mortgage, as the case may be]. [Official seal, if any]. [Signature and title.] [Proof by witness may be made in the form used in New Yoek.] 55. Declaration to Bar Bower of Wife Under Age. [Insert in the preceding form, before the signature :] and the said C. B., being a married woman, over the age of eighteen years, and under the age of twenty-one years, her father [or, and having no father, her mother], D. E , then also personally appeared and declared before me, that he [or, she] believed that such conveyance was for the benefit of the said C. B., and that it would be prejudicial to her and her husband to be prevented from disposing of the lands thns conveyed. [Signature, etc.] (») It is n(.t enough for him to certify ity is sustained by Hurt «. McCartney, 18 that he is clerk of the county. Shephard His., 129 ; Job v. Tebbetts, 4 (film., 148. v. Carriel, 19 III., 31S. (,c) 1 ners. Pror* by subscr ' : ng 54 aJBBOITS' forms. Acknowledgment, &o., of Deeds for New Mexico; New York. or compulsion of her said husband.] All which I certify under my hand and official seal. [Signature and title.] [Official seal.'] New Mexico. ( 100. Acknowledgment by a Grantor Personally Known to the Officer. State [or, Tebeitoey] op County of Be it bemembeeed, that on this day of , 18 , before me [naming court, or officer with his title] personally came * A. B., personally known to me to be the person executing the within [or, foregoing] instrument, and acknowledged that he executed the same for the purposes therein men- tioned.^) [Signature and title.] [Official seal.] '}■ 101. Acknowledgment by Grantor Not Personally Known to the Officer. [As in the preceding form to the *, continuing thus :] A. B., the grantor named in the within instrument, and M. IT. and O. P., and the said M. IT. and O. P., being by me severally duly sworn, deposed and said that they knew the said A. B., and that he was the same identical person who exe- cuted the within instrument ; and the said A. B. thereupon acknowledged that he executed the same for the purposes therein mentioned. [Official seal.] [Signature and title!] 102. Acknowledgment by Husband and Wife. [As in Form 100 to the *, continuing thus:] A. B., and O. B. his wife, personally known to me to be the persons executing the within [or, forego- ing] instrument [or state proof of identity, as in Form 101], and severally acknowledged that tliey executed the same, for the purposes therein men- tioned. And the said O. B., being first by me informed of the contents of the instrument, did confess, upon an examination independent of her hus- band, that she executed the same voluntarily, and without the compulsion or illicit influence of her husband. [Signature and title.] [Official seal.] New York. [A seal should be an impression on wax or wafer. One subscribing witness is necessary for a grant of lands, unless the instrument is acknowledged by the grantor. Married women conveying their separate estate, acquired since the act of 1848, and those residing without the State and joining their husbands in a deed, need not be separately examined. Certificates of acknowledgment or proof may be annexed or indorsed.(i) It is not the general practice to insert the name of the State in the venue of cer- tificates taken in and for the State, though it is proper to do so, and it always should be inserted in a certificate made in one State to be used in another.] («) If taken without the Territory, add, (t) Thurnan v. Cameron, 24 Wmd., In witness, etc., as in Form 8S. 87. ACKNOWLEDGMENT AND PROOF OF DEEDS. 55 Acknowledgments for New York. 103. Acknowledgment Within the State oy Grantor Known to the Officer. County of , ss. On this day of , in the year 18 , before me personally came A. B., to me known to he the individual described in, and who executed the within [or, above, or, annexed] conveyance [or, instrument], and ac- knowledged that he executed the same for the purposes therein mentioned. [Signature and title.] 104. By One of Several Grantors, Known to the Officer. County oe , ss. On this day of , in the year 18 , before me personally came A. B., to me known to be one of the individuals described in, and who executed the within [or, annexed, or, above] conveyance [or, instrument], and acknowledged that he executed the same for the purposes therein mentioned. [Signature and title.] 105. By Two or More Grantors, Known to the Officer. County of , ss. On this day of , in the year 18 , before me personally came A. B., C. D., and E. F., to me known to be the individuals described in, and who executed the within [or, above, or, annexed] conveyance [or, instru- ment], and severally acknowledged that they executed the same, for the purposes therein mentioned. [Signature and title.] 106. By a Grantor Not Known to the Officer. County op , ss. On this day of , 18 , before me personally came A. B., proven to me satisfactorily to be the individual described in, and who executed the within [or, above, or, foregoing] conveyance [or, instrument], by the oath of M. N, who being by me duly sworn [or, affirmed], did depose and say, that he resided in the city of , in the county of ; that he was acquainted with the said A. B., and that he knew him to ho the same per- son described in, and who executed the within conveyance [or, instrument] ; and thereupon the said A. B. acknowledged before me that he executed the same, for the purposes therein mentioned. [Signature and title.] 107. By Two Grantors, One Known and One Not Known. County of , ss. On this day of ,18 , before me personally came A. B., to me known to be one of the individuals described in, and who executed the within [or, above, or, annexed] conveyance [or, instrument] ; and also per- sonally came C D., satisfactorily proven to me to be the other individual [or, one of the other individuals] described in, and who executed the same, by the oath of M, N., who being by me duly sworn [or, affirmed], said that 56 ABBOTTS' FOKMS. Acknowledgment of Deeds, for New York. he resided in the town of , in the county of , and that he knew the 6aid 0. D. to be one of the individuals described in, and who executed the said conveyance [or, instrument] ; and thereupon the said A. B. and 0. D. severally acknowledged before me that they executed the same, for the purposes therein mentioned. {Signature and title.] ,108. By Five Grantors, Two Known and Three Not Known. County of , ss. On this day of , 18 , before me personally came A. B. and C. D., to me known to be two of the individuals described in, and who exe- cuted the within [or, above, or, annexed] conveyance [or, instrument] ; and also personally came E. F., G. H., and I. J., satisfactorily proven to me to be three' of the individuals described in, and who executed the said con- veyance [or, instrument], by the oath of M. M\, who being by mo duly sworn [or, affirmed], did depose and say, that he resided in the town of , in the county of ' , that he was acquainted with the said E. F., G. H., and 1. J., and that he knew them to be the three individuals described in, and who executed the said conveyance [or, instrument]; and thereupon the said A. B., 0. D., E. F., G. H., and I. J. severally acknowledged before me that they executed the same, for the purposes therein mentioned. [Signature and title]. 109. By Husband and Wife, Known to the Officer. County of , ss. On this day of , 18 , before me personally came A. B., and C. B. his wife, to me known to be the individuals described in, and who executed the within [or, above, or, annexed] conveyance [oi; instrument], and severally acknowledged that they executed the same, for the purposes therein mentioned. And the said C. B., on a private examination by me made, apart from her husband, acknowledged that she executed the same freely, and without any fear or compulsion of her said husband. [Signature and title.] 110. By Two Husbands and their Wives, Known to the Officer. County op , ss. On this day of , in the year 18 , before me personally came A. B., and 0. B. his wife, and D. E., and F. E. his wife, known to me to be the individuals described in, and who executed the within [or, above, or, annexed] conveyance [or, instrument], and severally acknowledged that they executed the same, for the purposes therein mentioned. And the said C. B. and F. E , on a private examination by me made, apart from their re- spective husbands, severally acknowledged that they executed the same freely, aid ■without any fear or compulsion of their respective husbands. [Signature and title.] ACKNOWLEDGMENT AND PROOF OF DEEDS. 57 Wife's Acknowledgment 111. By Husband and Wife, Not Known to the Officer. County of , ss. On this day of , 18 , before me personally came A. B., and C. B. his wife, both proven to me satisfactorily to be the individuals de- scribed in, and who executed the within [or, above, or, annexed] conveyance [or, instrument], by the oath of M. N., who being by me duly sworn [or, affirmed], did depose and say : That he resided in the town of , in the county of ; that he was acquainted with the said A. B., and C. B. his wife ; that he knew them to be the same persons described in, and who executed the within conveyance [or. instrument] ; and thereupon they sever- ally acknowledged before me that they executed the same, for the purposes therein mentioned. And the said 0. B., on a private examination by me made, apart from her husband, acknowledged that she executed the said conveyance [or, instrument] freely, and without any fear or compulsion of her said husband. [Signature and title.'] 112. By Husband Known, and Wife Not Known, to the Officer. County op , ss. On this day of , 18 , before me personally came A. B., and O B. his wife, the said A. B. being known to me to be one of the indi- viduals described in, and who executed the within [or, above, or, annexed] conveyance [or, instrument]; and the said O B., being proven to me satis- factorily to be one of the individuals described in, and who executed the said conveyance [or, instrument], by the oath of M. N., who being by me duly sworn [or, affirmed], did depose and say: That he resided in the town of , in the county of ; that he was acquainted with the said C. B., the wife of the said A. B., and that he knew her to be the same per- son described in, and who executed the said conveyance ; and thereupon the said A. B., and the said 0. B. his wife, severally acknowledged before me that they executed the same, for the purposes therein mentioned. And the said O B., on a private examination by me made, apart from her hus- band, acknowledged that she executed the same freely, and without any fear or compulsion of her said husband. [Signature and title.] 113. By Wife, in a Separate Certificate. County of , ss. On this day of , 18 , before me personally came 0. B., wife of A. B., to me known to be one of the individuals described in, and who exe- cuted the within [or, above, or, annexed] conveyance [or, instrument], and acknowledged, on a private examination by me made, apart from her husband, that she executed the same, for the purposes therein mentioned, freely, and without any fear or compulsion of her said husband. [Signature and title.'] 58 ABBOTTS' FORMS. Acknowledgment of Deeds, for New York ;— By Agents and Officers. 114. By Husband and Wife, Resident Without the State. COUNTY OF , SS. On this day of ,18 , before me personally came A. B., and also 0. B. his wife, who reside at , in the State of , and who are to me known, to be the individuals described in and who executed the within [or, above, or, annexed] conveyance [or, instrument], and severally acknowledged that they executed the same, for the purposes therein men- tioned. [Signature and title.'] 115. By Attorney in Fact, Known to the Officer. County of , ss. On this day of , 18 , before me personally. came A. B., the attorney of 0. D., known to me to be the individual described in, and who as such attorney executed the within [or, above, or, annexed] con- veyance [or, instrument], and acknowledged that he executed the same as the act and deed of 0. D., therein described, and for the purposes therein mentioned, by virtue of a power of attorney duly executed by the said C. D., bearing date the day of , in the year 18 [and recorded in the office of the register in and for the city and county of , on the day of , in the year ]. [Signature and title.] 116. By Attorney in Fact, Not Known to the Officer. County of , ss. On this day of , 18 , before me personally came A. B., proven satisfactorily to me to be the individual described in, and who executed the within [or, above, or, annexed] conveyance [or, instrument], as the attorney in fact of 0. D., by the oath of M. N., who being by me duly sworn [or, affirmed], did depose and say: That he resided in the town of , in the county of ; that he was acquainted with the said A. B., and that he knew him to be the individual described in, and who executed the said con- veyance, as the attorney in fact of C. D. ; and thereupon the said A. B. acknowledged before me that he executed the same as the act and deed of the said O.'IX, tor the purposes therein mentioned. [Signature and title.] 117. By a Sheriff, Referee, or Receiver. County of , ss. On this day of , 18 , before me personally came A. B., sheriff of the county of [or, late sheriff of the county of ; or, referee in the cause within named ; or, receiver in, etc.], to me known to be the individual described in, and who executed the within [or, above, or, an- nexed] conveyance [or, instrument], and acknowledged that he executed the same, for the purposes therein mentioned. [Signature and title.] ACKNOWLEDGMENT AND PROOF OF DEEDS. 59 Acknowledgment, by Officers, <&o. 118. By Deputy or Under-sheriff. County of , ss. On tliia day of , 18 , before me personally came A. B„ known to me to be the deputy [or, under-sheriff] of C. D., sheriff of the county of , who is to me known to be the individual described in, and who by his said deputy [or, under-sheriff] executed the within [or, above, or an- nexed] conveyance [or, instrument] ; and the said A. B. acknowledged that he, as deputy [or, under-sheriff] as aforesaid, had executed the same in the name, and as the act and deed of the said sheriff, for the purposes therein mentioned. [Signature and title.] 119. By Executor or Trustee. County of , ss. On this day of , in the year 18 , before me personally came A. B., the executor of the last will and testament [or, trustee of the estate] of C. D., to me known to be the individual described in, and who executed the within [or, above, or, annexed] conveyance [or, instrument], and acknow- ledged that he executed the same as such executor [or, trustee] as aforesaid, for the purposes therein mentioned. [Signature and title.\ 120. By a Grantor, After Attaining Majority, to Confirm a Deed Executed During Minority. County of , ss. On this day of , in the year 18 , before me personally came A. B., to me known to be the individual described in and who executed the within [or, above, or, annexed] conveyance, and acknowledged that the said conveyance was formerly executed by him when he was an infant under twenty-one years of age ; that he has since arrived at full age, and is desirous of confirming his former execution thereof; and he now acknow- ledges that he executed the same, as and for his act and deed, for the pur- poses therein mentioned. [Signature and title.'] 121. Proof Within the State, by Subscribing Witness Known to the Officer. County of , ss. On this day of , in the year 18 , before me personally came M. N., subscribing witness to the within [or, above, or, annexed] conveyance [or; instrument], with whom I am personally acquainted, who being by me duly sworn, said that he resided in the city of ; that he was ac- quainted * with A. B., and knew him to be the person described in, and who executed the said conveyance [or, instrument]; and that he saw him execute and deliver («) the same, and that he acknowledged to him, the («) The words "and deliver" are not Stat., 758, §§ 12,16.) But the provisions inserted in the forms in most common of the New York statute, which require a use, and doubtless are not essential to a subscribing witness (1 lb., 788, § 137), re- sufficient certificate to entitle a deed to be quire the witness to attest the execution read in evideuce or recorded. (1 liev. and delivery. 60 ABBOTTS' FOEMS. Proof of Deed by Subscribing Witness. said M. N. [naming witness], that he executed and delivered the same ("), and that he, said M. K, thereupon subscribed his name as a witness thereto. . [Signature and title.] 122. By Subscribing Witness, Not Known to the Officer. County op , ss. On this day of , in the year 18 , before me personally came M. K and O. P. ; and the said O. P., to me known, being by me duly sworn, said that he resided in the city of , that he was acquainted with the said M. N., then present, and knew him to be the same person who was a subscribing, witness to the within [or, above, or, annexed] conveyance [or, in- strument], which is to me satisfactory evidence thereof; and the said M. K., being duly sworn, said that he resided in the city of ; that he was acquainted with A. B., and knew him to be the person described in, and who executed the said conveyance [or, instrument] ; that he saw him exe- cute and deliver the same ; and that he acknowledged to him, the said M. N". [naming the witness], that he executed and delivered the same; and he, the said M. N., thereupon subscribed his name as a witness thereto. [Signature and title.] 123. Proof by Subscribing Witness, as to Husband, and Acknowledgment by Wife, both being Known to the Officer. County op , ss. On this day of , in the year 18 , before me personally came M. N , subscribing witness to the within [or, above, or, annexed] conveyance [or, instrument], with whom I am personally acquainted, who being by me duly sworn, said that he resided in the city of ; that he was ac- quainted with A. B , and knew him to be one of the persons described in, and who executed the said conveyance [or, instrument]; that he saw him execute and deliver the same ; and that he acknowledged to him, the said M. N. [naming witness], that he executed and delivered the same: and that he, said M. N., thereupon subscribed his name as a witness thereto. At the same time, also, appeared before me 0. B., the wife of the said A. B., to me known to be one of the individuals described in, and who executed the aforesaid instrument ; and on a private examination by me made, apart from her husband^ acknowledged that she executed the said conveyance freely, without any fear or compulsion of her said husband. [Signature and title.] (v) It was held in Jackson a. Phillips (9 but this is denied in Hollenbaek a. Flem- (Jow., 94) that this "clause, "and that he ing (6 Hill, 808). acknowledged," etc., is sufficient, without It is the usual practice to insert botfc saying 8t seven days before this her examination, raid that she did then, and still at this titne(/)] does freely, voluntarily, and with- out any manner of compulsion, dread, or fear of any person or persons whomsoever, renounce, release, and forever relinquish unto the within- named T. Z., his heirs and assigns, all her estate, interest, and inheritance in all and singular the premises within mentioned and released. Given under my hand and seal, this day of , a. d. one thousand eight hundred and [Signature, title, and seal [Signature of wife.] of officer.] (d) The words in brackets here, and the (/) These words in brackets are only seal, are not called for unless the proof is appropriate to be inserted where the wife taken without the State. conveys by a separate instrument from (e) This form is given by statute. her husband. 76 ABBOTTS' FOEMS. Acknowledgment, ss. County of . J Before me, judge of [or, notary public of ]» county, personally ap- peared C. B., wife of A. B., party to a certain deed or writing, bearing date on the day of , and hereunto annexed ; and having been ex- amined by me privily and apart from her husband, and having the same fully explained to her, she, the said 0. B , acknowledged the same to be her act and deed, and declared that she had willingly signed, sealed, and de- livered the same, and that she wished not to retract it , to certify which, I hereto sign my name and affix my seal, this day of , a. d. [Signature and seal.] 176. Proof by Subscribing Witness State of , ) r S8. County of . ) Be it eemembeeed, that on this day of , 18 , before me [giving name and title of officer] personally appeared M. N. [and 0. P., naming one or more], personally known to me to be [one of] the subscribing witnesses to the within [or, foregoing] deed [or, instrument]; and being by me duly sworn, stated that he [or, they] saw the grantor [or, person who executed such instrument] subscribe the same [or, that the grantor or person who executed such instrument of writing acknowledged in his or their presence that he had subscribed and executed the same] for the purposes and con- sideration therein stated, and that he [or, they] had signed the same as (j) This form is declared sufficient by the statute. Oldh. & W. Dig., 72. 78 ABBOTTS' FORMS. Acknowledgment, &c, of Deeds for Vermont ; Virginia. witnesses, at the request of the grantor [or, person who executed such in- strument]. , Witness my hand and seal, the day and year first above written. [Seal.] [Signature and title] Vermont. [The seal for a conveyance should he an impression upon wafer or wax. Of- ficial seals and seals of court may he on the paper alone. Two subscribing witnesses are required. Married women need not be separately examined. Within the State, deeds, etc., must be acknowledged. There is no provision for proof by witnesses within the State, except before a court where the grantor is dead or has departed. Acknowledgment or proof made without the State, if certified agreeably to the laws of the place where it is made, is valid.] 177. Acknowledgment. State op , ] County of . J The day of , 18 . Then personally appeared A. B. [and C. B. his wife], to me known, and [severally] acknowledged the within instrument by him [or, them] signed and sealed, to be his [or, their] free act and deed, before me. [Signature and title.'] 178. Acknowledgment oy Agent of Corporation(k). State of , ) County of . ) The day of , 18 . Then personally appeared A. B., within named to be the agent of the within-named C. D. Company, and acknow- ledged the within-written instrument to be the free act and deed of the said 0. D. Company. [Signature and titled] Virginia. [A scroll is a sufficient private seal for a deed. If the deed is acknowledged, no witnesses are necessary. Deeds may be proved within the State by two witnesses. A separate certificate is made for the acknowledgment of a mar- ried woman.] 179. Acknowledgment. State of , 1 County of . j I, M. M., a commissioner appointed by the governor of the State of Vir- ginia, for the State of New York [or, if taken within the State, a notary public for the county of , in the State of Virginia; — or, We, M. N. and O. P., two justices of the peace in and for the county of , in the Stale of Virginia], do hereby certify that * A. B., whose name is signed to the writing above, bearing date on the day of ,18 , has acknowledged (k) This form is sustained by McDaniels v. Flower Brook Manf. Co., 22 Verm., 274. ACKNOWLEDGMENT AND PROOF OF DEEDS. 79 Virginia. Washington Territory. the same before me at [or, before me in my county ; — or, before us in our county aforesaid]. . Given under my hand and official seal [or, under our hands], this day of , 18 . [Seal, if any.] [Signature and title.] 180. Acknowledgment iy Married Woman. [As in preceding form to the *, continuing thus :] 0. B., the wife of A. B., whose names are signed to the writing above, bearing date the day of , 18 , personally appeared before me [or, us], in the county and State aforesaid ; and being examined by me [or, by us], privily and apart from her husband, and having the writing aforesaid fully explained to her, she, the said 0. B., acknowledged the said writing to be her act, and de- clared that she had willingly executed the same, and does not wish to re- tract it. Given under my hand and official seal [or, under our hands], this day of , one thousand eight hundred and [Seal, if any.] [Signature and title.] Washington Territory. [Two witnesses are necessary. There is no provision for proof by the wit- nesses.] 181. Acknowledgment. State of County of On this day of 18 , before me [here give name and title of of fleer] personally came A. B., known to me to be the individual described in, and who executed the within [or, foregoing] conveyance, and acknow- ledged that he signed, sealed, and delivered the same as his free and volun- tary act and deed, for the uses and purposes therein mentioned. Witness my hand [and official seal] the day and year first above written. [Seal, if any.] [Signature and title.] 182. Acknowledgment ly Husband and Wife. Statu of , ) v SS. County of . ) On this day of , 18 , before me [here give name and title oj officer] personally came A. B , and 0. B. his wife, to me known to be the individuals described in, and who executed the within [or, foregoing] con- veyance, and severally acknowledged that they signed, sealed, and delivered the same as their free and voluntary act and deed, for the uses and pur- poses therein mentioned; and the said 0. B., upon an examination by me, separate and apart from her husband, acknowledged that she did volun- tarily, of her own free will, and without the fear of, or coercion from, her husband, execute the deed. Witness my hand [and official seal], the day and year first above written. [Seal, if any] [Signature and title.] 80 ABBOTTS' FORMS. Acknowledgment, &c, of Deeds, for Wisconsin. West Virginia. [Follow the forma given for Virginia, except that one justice may take an achnow ledgmen t.] ■Wisconsin. [A scroll or device, whether Written or printed, is a sufficient seal for deeds. Two subscribing witnesses are necessary ; but there is no provision for proof by witnesses, except within the State, in case an acknowledgment cannot be had. Any married woman residing in the State, and joining with her husband in a deed relating to lands within the State, or separately executing a deed re- lating to such lands, or a release of dower, may acknowledge as if she were sole(Z). A deed executed without the State may be executed according to the laws of the place of execution ; but in such case, if it is executed within the United States, and is not acknowledged before a Wisconsin commissioner, there must be annexed a certificate, by a clerk of a court of record, to the authority and signature of the officer, and to the fact that the deed is executed and ac- knowledged according to the laws of the place.] 183. Acknowledgment oy a Grantor, Known to the Officer. State os , J County of . J Be it kemembeeed, that on this day of ,18 , before me [giving name and title of officer] personally came the within-named A. B. [and 0. B. bis wife] *, to me known to be the identical person [or, persons] de- scribed in, and who executed the within deed [or, mortgage, or, other in- strument], and t acknowledged the same to be his [or, their] free act and deed, for the uses and purposes therein mentioned. [If without the State, add: In testimony whereof, I have hereunto set my hand [and seal], the day and year first above written.(m)] [Seal, if taken [Signature and title.] without the State.] 184. Acknowledgment "by a Grantor, Not Personally Known. [As in the preceding form to the *, thence continuing thus :] proven to me satisfactorily to be the identical person [or, persons] described in, and who executed the within deed [or, mortgage, or other instrument], by the oath of M. N , who being by me duly sworn [or, affirmed], did depose and say that he resided in the city of , that he was acquainted with the said A. H. [and 0. B. his wife], and that he knew him [or, them] to he the same person [or, persons] described in, and virho executed the said instru- ment; and thereupon the said A. B. [and 0. B.] acknowledged [etc, con- cluding as in preceding form from the +]. (1) Rev. Stat., 1858, p. 539, §§ 12, 14. must state the true date at which it wa< (m) A certificate of acknowledgment made. AFFIDAVITS. 81 Sworn Copies. Affidavit before Notary. CHAPTEE IV. AFFIDAVITS. See the requisites of these instruments fully stated in the Forms of Pbactice and Pleading, volume i., p. 4. As to the form of oath to be administered, see chapter of Oaths, post. PAGK 185. Common form 81 186. Affidavit to copies of papers 81 187. Affidavit to be used abroad 81 185. Comwion Form. [Title of suit, or other legal proceeding, if made in such a case.] A. B., of , being duly sworn [or, affirmed], says [here set forth alle- gations]. [Signature of deponent.] Sworn [or, affirmed] before me, j this day of 18 [Signatuie of officer.] me,) 186. Affidavit to Copies of Papers. State of , ) County of . ) A. B., of , being duly sworn [or, affirmed], deposes and says that he has carefully compared and found the annexed writings, in pages, to agree with and to be copies of, and of the whole of [or, copies and ex- tracts from] sundry original letters signed by 0. D., E. F. & Co., of , in the State of , one purporting to be signed by Q. H., of ; and also of sundry original accounts between the said 0. D. and E. F. & Co., signed by the said D., all which original papers are now produced. Sworn [or, affirmed] before me, ) [Signature of deponent.] this day of 18 . J [Signature of officer.] 187. Affidavit to be Used Abroad. '\ss. State op County of Be it known, that on this day of , before me, A. B., notary public for the commonwealth of , residing in the of , duly com- 6 82 ABBOfTS' FORMS. Appointments. missioned and sworn, and by law authorized to administer oaths and affirm- ations, personally appeared C. D., of , and who being by me duly sworn [or, affirmed], did depose and say [here set foi th the allegations] • and further deponent saith not. [Signature of deponent^] In testimony wheeeop, I have hereunto set my hand and affixed my seal of office, the day and year first above written. [Seal.] ■ [Signature and title.] CHAPTER Y. APPOINTMENTS. Appointments are of two kinds: 1. The conferring an authority to perform mties or to act for another, suck as the appointment of a guardian or an at- torney. 2. The declaration of an act or transfer in execution of a power. Appointments of the former kind are usually to be executed with the same formalities as are used in the execution of conveyances, for which see the chapter on Acknowledgment and Proop op Deeds. For forms of appoint- ments of attorneys and trustees, see the chapters on Powers and on Trusts respectively. In regard to appointments in execution of powers, it is to be observed that the American law and usage renders resort to this class of instruments com- paratively rare ; but in many of the States the subject is regulated more or less by statute, the chief effect of which, so tar as the forms of attestation are concerned, is to relax the very strict rules of the common law, requiring all incidental circumstances directed by the grantor of the power to be most rigidly observed in the execution of it : anc&Ave apprehend that the usual American rule is, that such an appointment must be executed with the for- malities required by law to pass such an estate, and that these are sufficient, 1 even though the grantor may have prescribed less or more formalities. It is not necessary ihat an appointment should recite, or even refer to the power, provided the act shows that the decree had in view the subject of the power, and intended to execute the power.(a) i. ArPOINTMENTS TO PERFOBM DUTIES, ETO. PAGB 188. Appointment of a guardian, hy a minor 82 189. The same, by a fiither 88 190. The same, made by will 83 tl. Appointments in execution of poweb3. 191. By wife, of real property, by a grant to "take effect on her death. ... 84 192. The same, by will 84 193. Consent, to be indorsed on the foregoing 85 194. By a wife, for the sale of stocks, under a power reserved to her in a marriage settlement 85 195. Reservation of a power to revoke and appoint anew, which may be inserted in an appointment .^ 86 (a) 4 Kent's Com., 384; Lancaster v. Dolan, 1 Eaale, 281. APPOINTMENTS. 83 Appointment of Guardian by Deed or Will. I. Appointments to Perform Duties, etc. 188. Appointment of a, Guardian, by a Minor. Know all men by these presents, that I, A. B., of , son and heir ot A. B., late of , deceased, being above the age of fourteen years — namely, about the age of years — have nominated, elected, chosen, and appointed, and by these presents do nominate, elect, choose, and appoint 0. D., of , to be guardian as well of my person as of my real and personal estate, until I shall attain the age of twenty-one years. In witness whereof, I have hereunto set my hand and seal, this day of , 18 . In presence of [Signature and seal.] [Signature of witnesses.] 189. Appointment of a Guardian, by a Father, for a Son. Know all men by these presents, that I, A. B., of , in the county ot , and State of , farmer, have committed and disposed, and by these presents do commit and dispose, the custody, tuition, and education of, my son, 0. B., to Y. Z., of said town, whom I do hereby appoint his guardian ; this appointment and disposal to take effect immediately, and henceforth [or, from and immediately after my decease and thenceforth] to continue during the minority of my said son [or such other time as may be fixed.] [To provide for the guardian's death, may add:] And if it shall happen th:;t the said Y. Z dies before me, or before my said son attains the age of twenty-one years, then and in such case I do commit and dispose unto W. X., of , such custody, tuition, and education and guardianship, after my decease, and the decease of the said Y. Z., until my said son at- tains the age of twenty-one years. In presence of [Signature and seal. [Signature of witness.] 190. The Same, by Will. [Insert in the will — see forms on chapter o/" Wills]— And in case T shall leave any child, or children, living at the time of my decease, under age and unmarried, my will is, and I do appoint, that my beloved wife shall have the guardianship, custody, and tuition of them during their minority [so long as she shall continue to be sole] ; and, in case of her death [or, mar- riage] during the minority of such my children, then I will and appoint that my friend M. N., one of my executors, shall have the guardianship, custody, and tuition of them during such their minority. And in case of his refusal, renunciation, or decease, I will and appoint that my friend, my other executor. O. P., shall exercise the said guardianship, custody, and con- trol. [Here add any special directions — e.g., thus :] And I earnestly entreat their utmost care, respectively, in and about the morals and education of such children, and desire that they may be brought up and instructed in the doctrines anr 1 religion of the Church. 84 ABBOTTS' FORMS. .Execution of Powers. II. Appointments m Execution op Powers. 191. By a Wife, of Seal Property, by Grant, to Take Effect upon Her Death. This inhenture, made this ' clay of , 18 , between C. B., of , wife of A . B., clergyman, party of the first part ; I>. E., of , the brother of the said 0. B., party of the second part ; and F. G., of , merchant, party of the third part : Whereas, by an indenture in parts, bearing date on the day of , 18 , made between the said 0. B., by her then name of 0. M., of the first part [here proceed to recite the settlement, or other deed, by which the power to appoint was reserved, and any facts on which its execution depends ; continuing :] Now this indentt/ke witnejseth that the said 0. B., the party hereto of the first part, by virtue of the power of appointment limited to her in the before-recited instrument, and of all and every other power and authority in that behalf given or reserved, in her vested, or her in anywise thereto enabling, doth limit and appoint all that [etc., describing the real property] to the use of the said F. G., for the term of his natural life, to take effect immediately after the death of the said party of the first part. And the said party of the first part doth, by this [here describe the formalities prescribed by the instrument creating the power, and by law — e.g., thus:] her deed in writing, under seal, and exe- cuted and delivered in the presence of one subscribing witness, whose name it is intended shall be written hereon as a witness attesting the same, and by her, the said 0. B., to be duly acknowledged according to law, and with the consent of the said party of the second part hereunto, testified by his uniting in the execution of these presents as a party thereto, declare, limit, and appoint the said' [trustees] and their successors and heirs, and all other persons seized of the said premises, or any part thereof, to stand seized of the same described real property, hereinbefore limited to the use of the said 0. B. as aforesaid, to the use of the said F. G. for and during the term of his natural life, to take effect immediately after the decease of the said party of the first part. In witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. Executed and delivered 0. B. [Seal] in the presence of D. E. [Seal.] [Signature of witness.] 192. The Same, by Will. [Insert in the will — see forms in chapter a/Wills] — And I further declare it to be my will as follows — that is to say : Whereas [here recite the settlement or other instrument by which the power to appoint was reserred, and any facts on, which its execution depends ; continuing :] Now, therefore, I do will, devise, and direct, and by virtue of the power of appointment limited to me in the before-recited instrument, and of all and every other power and authority in that behalf given or reserved, in me vested, jr me in anywise tl ereto APPOINTMENTS. 85 Execution of Powers. enabling, do limit and appoint, all that [etc., describing the real property] to the use of the said F. G., for the term of his natural life, to take effect immediately after my death. And I do by this my last will and testament in writing [and under seal], and executed, acknowledged, and published in the presence of two subscribing witnesses, whose names it is intended shall be written hereon as witnesses attesting the same according to law, and with the c.insent of the said party of the second part, hereunto testified and certi- fied by him by a writing indorsed hereon, under his hand and seal [and duly to be proved or acknowledged according to law], declare, limit, and appoint the s:iid [trustees] and their said successors and heirs, and all other persons seized of the said premises, or any part thereof, to stand seized of the same described real property hereinbefore limited to the use of the said 0. B. as aforesaid, to the use of the said F. G., for and during the term of his natural life, to take effect immediately after my decease. 193. Consent, to be Indorsed on the Foregoing(b). To all to whom these presents may come : Know ye, that I, D. E , of , brother of C. B., the testator described in, and who executed the within will, do hereby consent to and approve of, and testify and certify my consent and approval to, the appointment declared and limited in the paragraph of said will, according to the terms thereof. In witness whkeeof, I have hereunto set my hand [and seal], this day of , 18 . In presence of D. E. [Seal.'] [Signature of witness.] 194. By a Wife, for the Sale of Stochs, under a Power Reserved to Her in a Marriage Settlement. To ail persons to whom these presents shall come, 0. B , wife of A. B., of , sends greeting : W HERK&s, by indenture tripartite, bearing date the day of , 18 , made between the said 0. B., by her then name and addition of 0. M., of , spinster, of the first part, the said A. B. of the second part, and W. M and J. B. (if the third part, it was agreed by the said parties that the said W. M. and J. B., amongst other things, should stand possessed of shares of the capital stock in the Bank of , in the said indenture men- tioned [to have been transferred on the day of the date thereof, to the said W. M. and J. B. by the said C. B ], and all dividends, interest, and profits thereon, in trust for the sole and separate use of the said C. B., free from the interference, control, debts, contracts, and engagements of the said A. B., and in trust, from time to time to pay to. or permit the said 0. B., dur- ing her lifetime, to enjoy, sell, give away, spend, or dispose of the same, or any part thereof, in like manner to all intents as the said 0. B. might have done if she had remained sole and unmarried ; and in trust, to transfer the (J) Where the consent of a third person it should be expressed in the appoint- is required to the execution of a power, ment, or should be indorsed thereon. 86 ABBOTTS' FORMS. Execution of Powers. Apprenticeship. same to such person or persons as she, the said 0. B., by her last will and testament, or any other writing or writings, nnder her hand and seal, prop- erly attested, should direct and appoint : Now know ye, that the said 0. B., by virtue and in pursuance of the said powers and limitations, and in pursuance of every other power and author- ity in that behalf given or reserved, in her vested, or her in any wise there- to enabling, doth direct and appoint the said W. M. and J. B., as 300n as conveniently may be, at the market price, to sell and dispose of shares of the said capital stock, standing in their names as aforesaid; and the moneys arising by such sale, together with the dividends or profits accrued thereon, after deducting the costs and charges of such sale, to pay to her, the said C. B., to her sole and separate use, according to the limitations, trusts, and true intent of the said indenture. In witness whekeof, I have hereunto set my hand and seal, this day of , 18 . In presence of C. B. [Seal.] [Signature of witness.] 195. Reservation of Power to Revohe and Appoint Anew, which may be Inserted in an Appointment. Pbovidbd always, nevertheless, that it shall be lawful for the said 0. B. at any time during her natural life, whether covert or sole, by any deed ov writing under her hand and seal, duly attested by a subscribing witness [or, by her last will and testament, or other writing in nature thereof, duly at- tested by two subscribing witnesses], according to law, to alter, change, re- voke, make null and void, the said use and uses, estate and estates, hereby limited or created, of and in the said property hereinbefore described, or any part thereof; and by the same deed or writing [or, by such last will and testament, or writing in the nature thereof J, attested as aforesaid, to create, limit, appoint, or declare any other use or uses, estate or estates, trust or trusts, of and in the same premises, and every or any part thereof, in such manner and form as the said 0. B. shall think fit and convenient. CHAPTEE VI. APPRENTICES- Appeenticks are a species of servants, n called from Apprendre, to learn ; and the term is usually taken to mean a minor, bound for a term of years, or until he attains majority, by indenture or sealed contract, to serve a master, by whom he is to be both maintained and instructed. In general, and without any statute regulation, a contract of service made by a minor will not be held valid unless, in the particular case, it appears, in its terms and in the circumstances under which it was made, to be reasonable and APPRENTICES. 87 General Principles. beneficial to the minor.(c) But a father, who is entitled to the services of his minor son, and for whom lie is obliged to provide, may assign those services to others, for a consideration to enure to himself, and may contract that his minor son shall labor in the service and employment of others for any term which does not exceed the period of the child's emancipation from the father, which may take place as well on the father's death as on the son's arriving at the age of twenty-one years. The Statute. — This subject was regulated in England by a statute enacted in the time of Queen EIizabeth,(<2) which prescribed the modes in which such contracts should be made, and declared all contracts by which minors should be bound in service to be illegal, unless made pursuant to the statute. This statute has been in part adopted in most of the States in this country as the basis of a system of apprenticeship, the general features of which are, that a minor, with the consent of his father, — or, if the father is dead or inca- pacitated to act, or has abandoned the family, the consent of the mother ; or, if she cannot act or refuses, that of the guardian ; or, if there is no guardian, that of certain magistrates designated by statute,— may be bound to service, by writing, to a master, who shall by the contract undertake to maintain the apprentice, and to teach liim his trade. Various special provisions for the security of either party are made by different statutes in the different States. Unless the statute declares other contracts than those so made to be void, others may be valid also, but if broken can only be enforced by action at law ; whereas contracts made pursuant to the statute may be summarily and speci- fically enforced, by either party, by an application to the proper magistrate, who may punish a refractory or unfaithful apprentice or an unjust master ; and in proper cases may discharge the apprentice, and compel the master to refund any money he received with him. The following forms are appropriate to the provisions of law in the State of New York, and may easily be modified by the practitioner, to conform to the statute provisions of his own State. I. The contract of apprenticeship. paqk 196. Indenture with consent of father 88 197. Indenture with consent of mother 89 198. Consent of father or mother 89 199. Justice's certificate, where the consent is by the mother 89 200. Indenture witli consent of guardian 89 201. Consent of guardian, where parent's consent is not given 90 202. Indenture, with consent of magistrates 90 203. Consent of magistrates, where parent's or guardian's consent is not given 90* 204. Agreement by the father, to answer for the fidelity of the appren- tice : to be indorsed on the indenture 90 II. Pkooeedinos upon a violation. 205. Complaint against apprentice for refusing to serve 91 206. Verification of the same 91 207. Warrant on the foregoing complaint 91 208. Commitment of apprentice refusing to serve 91 209. Master's complaint touching misdemeanor or ill-behavior of ap- prentice 92 210. Warrant on the foregoing complaint 92 211. Commitment of apprentice for misdemeanor or ill-behavior 92 («) Nickernon 1>. Easton, 12 Pick., 110. (d) 5 Eli*., eh. 4, § 41. 88 ABBOTTS' FOEMS. Indentures of Apprenticeship. PAGE 212. Discharge of apprentice from service, and of the master from his obligations 92 213. Complaint by apprentice ; 98 214. Summons on the foregoing complaint 93 215. Discharge of the apprentice on the foregoing complaint 98 I. The Oontbaot of Apprenticeship. 196. Indenture with Consent of Father. This indenture, made this day of , 18 , witnesseth: ThatO. B., of the town of , in the county of , and State of , now aged years, (a) with the consent of A. B., his father, hereon indorsed,* does hereby, of his [or, her] own free will, bind himself [or, herself] to serve Y. Z., of the town of , in the county of , and State of , as apprentice [or, clerk, or, servant] in the trade of a blacksmith [or other trade, profession, or employment, according to the fact], and to learn the said trade, profession, or employment, until the said 0. B. shall have attained the age of twenty-one years, which will be on the day of , in the year 18 [or, for the term of years from this date], during all which time the said apprentice shall serve the said master faithfully, honestly, and in- dustriously, his secrets keep, and lawful commands everywhere readily obey ; at all times protect and preserve the goods and property of the said master, and not suffer or allow any to be injured or wasted. He [or, she] shall not buy, sell, or traffic with his own goods or the goods of others, nor be absent from the said master's service, day or night, without leave ; but in all things behave as a faithful apprentice ought to do, during the said term. And the said master shall clothe and provide for the s-iid ap- prentice in sickness and in health, and supply him [or, her] with suitable food and clothing ; and shall use and employ the utmost of his endeavors to teach, or cause the said apprentice to be taught or instructed in, the art, trade, or mystery of [stating trade, etc.. as above] ; and also cause the said apprentice, within such term, to be instructed to read and write [and, if o mule, add : and in the general rules of arithmetic] ; and at the expiration of the service, give the said apprentice a new Bible.(i) [If money is paid with the apprentice, insert here:] And the said Y. Z. acknowledges that he has received, with the said 0. B., from the said A. B. [naming the father or mother], the sum of dollars, as a compensation for his instruction, as above mentioned.(c) Or, if wages are to be paid for the service of the apprentice, insert:] And the said Y. Z. further agrees to pay to the said 0. B. the following sums ot money — viz., for the first year of his service, dollars ; for the second (a) The statute of New York requires (6) The provision, as to instruction the age to be stated, and makes the state- and giving the Bible, is required by the ment sufficient evidence on the point (2 statute in case of children bound out Bev. Stat., 155, § 8) ; but it is only prima- by officers of the poor. 1 Bev. Stat., 155, facie evidence, and it may be contradicted ' § 10. ' by proof of the true age. Drew v. Peek- («) If money is paid or agreed for, the well, 1 K D. Smith, 4" 1 ? ; Matter of Bren- sum must be mentioned in the indentures. nan, 1 Sand/., 711. 2 Bev. Stat., 155, § 9. APPRENTICES. 89 Indentures, and Consents thereto. year of his service, dollars ; and for every subsequent year, until the expiration of his term of service, dollars ; which said payments are to be made on the day of in each year. And for the true performance of all and singular the covenants and agreements aforesaid, the said parties bind themselves,^) each unto the other, firmly by these presents. In witness wheeeof, the parties aforesaid have hereunto set their hands and seals, the day and year first above written. [Signature and seal of apprentice.] [Signature and seal of master.] 197. Indenture with Consent of Mother. This indenture, made this day of , 18 , witnesseth : That C. B., of the town of , in the county of , and State of now aged years, with the consent of A. B., his mother, his father having abandoned and neglected to provide for his family [or, being dead, or, being insane and not in a legal capacity to give his consent], as hereon certified by a justice of the peace of the said town, said consent being also indorsed hereon [Thence continue as in the preceding form from the *]. 198. Consent of Father or Mother. I do hereby consent to, and approve of, the binding of my son [or, daugh- ter], 0. B , as in the above [or, within] indenture mentioned. Dated the day of , in the year 18 . [Signature.] 199. Justice's Certificate, Where the Consent is oy the Mother. I, J. K., a justice of the peace of the town of , in the county of , do certify that A. B., the father of the infant named in the within indenture, is dead [or, is not in leg.il capacity to give his consent thereto ; or, has abandoned and neglects to provide for his family]* Dated the day of , 18 . [Signature] Justice of the peace. 200. Indenture With Consent of Guardian. This indenture, n/adethis day of ,18 , witnesseth: ThatC. B., of the town of , in the county of , and State of , with the consent of M N., his duly-appointed guardian, his father and mother being dead [or, his father being dead and his mother refusing her consent ; or, not being in. legal capacity to give consent], as appears by such consent hereon indorsed [Thence continue as in Form, 196 from the * to the end]. f.-i) The father or guardian may render as above to his consent indorsed, and by himself personally liable for tire fidelity his signing and sealing, with the master of the apprentice, by being designated as and apprentice, a party to be bound, instead of referring 90 ABBOTTS' FORMS Indentures of Apprenticeship. 201. Consent of Guardian, Where Parents' Consent is Not Given. I, M. N , the duly appointed guardian of C. B., the infant in the within indenture named, do certify that the father and mother of the said C. B. are dead [or, that the father of the said 0. B. is dead, and that the mother of the said C. B. refuses her consent to the said indenture of apprenticeship ; or, is not in legal capacity to give her consent to the said indenture of ap- prenticeship] ; and that I do hereby, as his guardian, consent to, and approve of, the binding of the said 0. B. in and by the said indenture. Dated the day of , 18 . [Signature] Guardian of 0. B. 202. Indenture With Consent of Magistrates. This iNnENTrjEE, made this day of ,18 , witnesseth : That C. B., ofthetownof , in the county of , and State of New York, with the consent of the overseers of the poor of said town [or, of two justices of the peace of said town ; or, of J. K., the oounty judge of said county], here- on indorsed [Thence continue as in Form 196 from the * to the end.] 203. Consent of Magistrate, Where Parents' or Guardian's Consent is Not Given. We, the undersigned, overseers of the poor of the town of [or, two justices of the peace of the town of ; or, I, the undersigned, county judge of county], where the within-named C. B. resides, do certify that the said C. B. has no parent living [or, no parent in legal capacity to give consent to the within indenture ; or, no father living, and his mother is not in legal capacity to give consent to the within indenture ; or vice versa], and that he has no guardian ; and that we, the said overseers [or, justices ; or, I. the said county judge] do hereby consent that the'said 0. B. may bind himself [or, herself] by the said indentures. [Signatures and titles.] 204. Agreement by the Father to Answer for the Fidelity of the Apprentice, to be Indorsed on the Indenture. In consideration of the covenants and agreements to be performed by Y. Z. to and with my son, 0. B., specified and contained in the within in- denture, and in consideration of $1 to me in hand paid, I do hereby bind myself to the said Y. Z. for the true and faithful performance and observ- ance by the said 0. B. of all the matters and things by him covenanted and agreed to bo performed and observed in and by the said indenture [and that he shall well and truly serve the said Y. Z.](e) In witness wijekeof, I have hereunto set my hand and seal, the day rf , 18 . [Signature and seal.] * (e) As to the effect cf inso-ting such a clause as this last, see chapter of Bohds, infra. APPRENTICES. 91 Complaint agaiust Apprentice. II. PliOOEEDINGS ON A VIOLATION OF THE CoNTBAOT. 205. Master's Complaint Against Apprentice for Be/using to Serve. To J. K., a justice of the peace of the county of [or, mayor, or, re- corder, or, alderman of the city of : I, Y. Z., of the town of , in said county, blacksmith, hereby make complaint to you that 0. B., an apprentice lawfully bound to serve me, whose term of service is still unexpired, and with whom I have not received, nor am I entitled to receive, any sum of money as a compensation for his in- struction, * refuses to serve according to the law and the terms of his inden- ture ; whebefobe, I apply for a warrant against him, pursuant to the statute. Dated the day of , 18 . [Signature.] 206. Verification of the Foregoing. COUNTY OF l SS. Y. Z., above named, being duly sworn, says that the facts and circum- stances stated and set forth in the above complaint are true. Sworn before me, this day of 18 . G. H., Justice of the peace. 207. Warrant on the Foregoing Complaint. County of , ss. To any constable of said county, greeting : Wiieheas, complaint has been made to me, J.K., one of the justices of the peace of said county [or other magistrate], upon the oath of Y. Z., of , in said county [or, city], blacksmith, that 0. B., an apprentice lawfully bound to serve the said Y. Z., whose term of service is still unexpired, and with whom the said Y. Z. has not received, nor is entitled to receive, any sum of money as a compensation for his instruction, * refuses to serve the said Y. Z., as by law and the terms of his indenture of apprenticeship he is required, t Now, therefoee, you are hereby commanded forthwith, to apprehend the said O. B., and bring him before me, at my office in , to answer to the said Y. Z , and be dealt with according to law. Given under my hand, this day of , 18 . [Signature and title of magistrate.] 208. Commitment of Apprentice Refusing to Serve. [As in preceding form to the +, thence continuing thus :] And the said C. B., by virtue of my warrant thereupon issued, has been brought before me, to be dealt with according to law ; and whereas, after due proof before me of the facts as above stated and set forth, the said C. B. still persists in such refusal to serve the said Y. Z. Now, theeefoek, you are hereby com • manded, in the name of the People of the State of New York, to take and convey the said 0. B. to the common jail of said county, and deliver him to the keeper thereof, who is commanded to receive the said 0. B. into the said 92 ABBOTTS' FORMS. Commitment of Apprentice. common jail, there to remain until he shall consent to serve the said Y. Z. according to law. Given [etc., as in the preceding form]. 209. Master's Complaint Touching Misdemeanor or IU-oehavior of Apprentice. [As in Form 205 to the * except that it is to be addressed to two such magistrates; thence continuing thus :] has been guilty of misdemeanors and ill-behavior towards me, the said Y. Z., as follows, viz., [here set forth the particulars] ; wherefore, I apply for a warrant against him, pursuant to the statute. [Date.] [Signature.] [Add Verification, as in Form 206.] 210. Warrant on the Foregoing Complaint. [As in Form 20V to the * except using the word " us," and naming two magistrates ; thence continuing thus :] has been guilty of misdemeanors and ill-behavior towards me, the said Y. Z., as follows, viz., [Set forth the particular*, as in the complaint.] Now, therefore, yon are hereby com- manded forthwith to apprehend the said C. B., and bring him before us, at the office of G. H, in the town of , that we may hear, examine into, and determine the said complaint, and deal with the said C. B. according tc law. Given under our hands, this day of , 18 . [Signatures and titles of two magistrates.] 211. Commitment of Apprentice for Misdemeanor or Ill-oehatior. [As in Form 207 to the *, except using the word "us," and naming two magistrates ; thence continuing thus :] has been guilty of misdemeanors and ill behavior towards him, the said Y. Z., as follows, viz. [as in the com- plaint] : and the said O. B.. by virtue of our warrant thereupon issued, has been brought before us, and upon due examination of the proofs and alle- gations of the parties, it satisfactorily appears to us that the complaint is well founded, and that the said 0. B. is guilty of the premises charged against him as aforesaid. Now, therefore, you are hereby commanded, in the name of the People of the State of New York, to take and convey the said 0. B. to the common jail of said county, and deliver him to the keeper thereof, who is commanded to receive the said O. 13. into the said common jail, there to remain in solitary confinement, and to be employed at hard labor, for the term of [any term not exceeding one month]. Given [etc., as in Form 210]. 212. Discharge of the Apprentice from Service, and of the Master from Sis Obligations. [As in Form 207 to the ", except using the word " us," and naming two magistrates; thence continuing thus:] has been guilty of misdemeanors APPRENTICES. Complaint against Master. and ill-behavior towards him, the said T. Z., as follows, viz. [as in the com- plaint] : and the said 0. B., by virtue of our warrant thereupon issued, has been brought before us ; and, upon due examination of the proofs and alle- gations of the parties, it satisfactorily appears to us that said complaint is well founded, and the said 0. B. is guilty of the premises charged against him as aforesaid. Now, therefore, we do hereby discharge the said 0. B. from the service of the said Y. Z., and the said Y. Z. from all and every of his obligations incurred under and by virtue of the indentures of apprentice- ship of the said C. B. Given [etc., as in Form 210.] 213. Complaint oy Apprentice. To J. K. and L. M., two of the justices of the peace of the county of : [or other two magistrates] : I, C. B., apprentice to Y. Z., of the town of , in said county, black- smith, hereby complain to you, that the said Y. Z., to whom I am lawfully bound by indentures of apprenticeship, the term of service in which hath not yet expired, and who has not received, nor is entitled to receive, any sum of money as a compensation for my instruction, has cruelly beat, bruised, and wounded me, the said 0. B., being his apprentice as afore- said [or, has misused and ill-treated me, the said 0. B., being his appren- tice as aforesaid, by refusing to furnish me with necessary provisions and clothing, or other violation] ; to wit, at , aforesaid, on the day of ,18 ; wherefore, I apply to have the said Y. Z. summoned before you, pursuant to the statute. [Date.] [Signature.] [Add Verification, as in Form 206.] 214. Summons on the Foregoing Complaint. County op , ss : To any constable of said county, greeting : Whereas, complaint has been made to us, the undersigned, justices of the peace in and for the said county, upon the oath of 0. B., apprentice of Y. Z., of , in said county, blacksmith, that the said Y. Z., to whom the said 0. B. is lawfully bound by indentures of apprenticeship, the term of service in which has not yet expired, and who has not received, nor is entitled to receive, any sum of money as a compensation for the instruction of the said 0. B., has [here state the charge in the complaint].* Now, therefore, you are hereby commanded to summon the said Y. Z. and 0. B. to appear before us, at the office of G. H., in the town of , on the day of instant, at o'clock in the noon, that we may hear, examine, and determine the said complaint. Given [etc., as in Form 210]. 215. Discharge of the Apprentice on the Foregoing Complaint. [As in the preceding form to the*, continuing thus:] And the said Y. Z., by virtue of our summons thereupon issued, has been brought before us, 94 ABBOTTS' FOEMS. Arbitration and Award. and upon due examination of the proofs and allegations of the parties, it satisfactorily appears to us that the said Y. Z. is guilty of the premises so charged against him as aforesaid. Now, TnEEEEORE, we do hereby dis- charge the said 0. B. from the service of the said Y. Z., any thing in his indentures of apprenticeship as aforesaid to the contrary notwithstanding. Given [etc., as in Form 210]. CHAPTEE VII. ARBITRATION AND AWARD. Ik general, any controversy which might he the subject of a civil action, may be submitted to arbitration. If an action is already pending, the arbitra- tion effects a discontinuance of it, unless it is otherwise stipulated by the parties. An agreement to arbitrate is usually, though not necessarily, in writing. When in writing, it is frequently in the form of mutual bonds. If not in that form, it is prudent to make two counterparts of the instrument, one for each party. It is usual to appoint one, two, or three arbitrators, and, if more than one, to provide against the contingency of their not being able to agree. This may be done by empowering them, in such case, to call in another per- son, chosen by themselves, to act with them ; but the better practice is to em- power them to choose an umpire, who shall act instead of them, if they fail to agree. The agreement of submission, in whatever form it is made, should state ex- plicitly what powers are intended to be conferred on the arbitrators or umpire, either by referring all controversies without limit, or by distinctly limiting the particular controversies intended. If it is intended that the arbitrators may require either party to pay the expenses incurred by the other in the arbitration, the agreement should expressly empower them to award payment of expenses. But without this, the arbitrators are entitled by custom to require the prevailing party to pay them the same fees which are allowed to referees* in courts of record, usually three dollars per diem. A different rate of com- pensation may be fixed by agreement of those concerned. All the arbitrators and all the parties must have reasonable notice of the time and place of the hearing. The more convenient practice is to apply to the arbitrators to appoint a time and place, and give written notice to the parties. If several arbitrators are appointed, an award must be made by all, unless it is otherwise provided in the submission. If it is provided that all or any two of them may make an award, they must all have due notice to attend the meeting, and of the subject of reference, otherwise the award will not be binding ; but if, after notice, one of the arbitrators should omit to attend, the two who do attend may make an award. If, after due notice, either party neglects to attend, the arbitrators may pro- ceed ex parte. In settling tJieir award, the arbitrators must confine themselves strictly within the powers conferred by the submission. The precise controversy sub. mitted to them should be determined ; and if the award embraces matters not incl uded in the submission it is void, unless the portion which exceeds the submission can be separated from the rest, without affecting the merits of the award as to that whic h was submitted. ARBITRATION AND AWARD. 95 Generul Principles. The matters awarded should be expressed in clear and distinct terms, so that nothing shall be left uncertain.. Thus if a party is required to give secu- rity, the nature and extent of the security must be stated, otherwise it would not appear what would amount to a performance of such requirement. In reference, however, to matters of calculation, or of definite facts, ascertainable to a legal certainty, it is enough if the award give the data or conditions from which the result may be deduced. The matters awarded must also be mutual, affecting both parties ; and final, so as to terminate the controversy. If the submission requires it, the award must be sealed as well as signed ; otherwise, sealing is not necessary, even where the submission is sealed. If the submission contemplates being delivered to the parties, it should be exe- cuted in duplicate, so that each party may have an original. Statutory Arbitration. — In many of the States, the proceeding is regulated by statute, with provisions that the award may be brought into court and a judgment entered thereon. In New York and some other States, it is held that the statute does not wholly take away the common-law proceeding ; so that in some cases an iirbitrntion muy be good for the purpose of establishing a valid award on which the successful party may sue if necessary, although it do not conform to the statute, and therefore do not entitle the party to a sum- mary judgment without suit. In other States, the statute method is exclusive, and its regulations are held to apply to all arbitrations. The statute of New York provides that for the purpose of an award on which judgment may be entered, all persons, except infants and married women, and persons of unsound mind, may, by an instrument in writing, sub- mit to the decision of one or more arbitrators any controversy existing be- tween them, which might be the subject of a suit at law or in equity; in- cluding any claim to an interest in real estate, for a term of years or less, and any controversy respecting partition between joint tenants, or tenants in com- mon, or concerning boundaries, or the admeasurement of dower, but excluding claims to real estate, in fee or for life. Married women are now competent. The agreement must stipulate that judgment may be entered on the award, if a proceeding under the statute is intended. The forms given below for the statute arbitration are according to the prac- tice prescribed by the New York statute, and will be found sufficient in most of the other States. In some of the States the award, when ready, is delivered to the court by the arbitrators, and the matter called up as a cause in its order on the docket. I. Arbitration at common law. fagb 216. General form of agreement of submission 96 217. The same, with agreement for an umpire 97 218. Short form of submission 98 219. Special submission ; — controversy between several persons on each side 98 220. The same, of controversy as to wages 98 221. The same, of controversy as to an account 98 222. The same, of controversy as to breach of warranty 99 228. The same, concerning the settlement of partnership affairs 99 224. The same, of controversy as to annuity in lieu of dower 99 225. The same, concerning land, and trespasses 99 226. The same, concerning boundaries 100 227. Arbitration bond M>0 228. The same, where appointment of an umpire is contemplated 100 229. Agreement of submission or bond, where the arbitrators are to be sworn '"1 280. Submission without discontinuing a pending suit 101 231 . Notice to the arbitrators of their appointment 101 96 ABBOTTS' FORMS. Arbitration at Common Law. PAGB 282. Notice of hearing for adverse party 101 283. Oath of witnesses ' 10-2 284. Agreement to extend the time for making award 102 235. Revocation of arbitrator's powers 102 286. Notice of revocation to adverse party 102 287. Appointment of umpire after disagreement of arbitrators 102 288. The same, before the hearing' , .- 108 289. Award by one or more arbitrators 108 240. Award by umpire 103 241. Award ; — for payment of money in full 104 242. " for damages for breach cf warranty 104 243. " for delivery of goods 104 244. " for delivery of writings 104 245. " for delivery up of writings to be cancelled 105 246. " for giving a bond for payment of money. 105 247. " for assignment of a mortgage 105 248. " for specific performance of agreement to assign a lease... 105 249. " for specific performance of contract to convey land 105 250. Provision for the discontinuance of all suits 105 251. "' for the same, with costs 106 252. " for general releases 106 253. " for costs of the arbitration 106 TI. Arbitration under the statute. 254. Submission 106 255. Oath of arbitrators 107 256. Oath of applicant for subpoena 107 257. Subpoena to appear before arbitrators 107 258. Affidavit to the submission by the subscribing witness 107 259. Affidavit to the award by the subscribing witness 108 260. The same, by the arbitrators 108 261. Proof of service of award 108 262. Notice of application for judgment 109 263. Order confirming award 109 264. Judgment on award 109 I. Aebiteation at Common Law. 216. General Form of Agreement of Submission. Wheeeas controversies exist, and for a long time have existed, between us, A. B , of , and Y. Z , of , in relation to divers subjects : Now, theeefoee, we, the undersigned A. B. and Y. Z., do hereby mutually covenant and agree, to and with each other, to submit all and all manner of actions, cause and causes of actions, suits, controversies, claims and de- mands whatsoever, now pending, existing, or t held by and between us, § to M. N., of , as arbitrator, who shall [or, to M. N., O. P., and Q. R., all of , as arbitrators, who, or any two of whom, shall] arbitrate, award, order, judge, and determine of and concerning the same. [Here insert, if desired, \\ ith power to award the payment of the costs [and of the ex- penses] incurred in such arbitration.] And we do mutually covenant and agree to and with each other that the award to be made by the said arbi- trator [or, arbitrators, or any two of them] shall, in all things, by us and ARBITRATION AND AWARD. 97 Submissions. each of us, and by the(a) executors, administrators, and assigns of us and each of us, be well and faithfully kept, observed, and performed. Pro- vided,, however, that such award be made in writing, under the hand of the said arbitrator [01; hands of the said arbitrators, or any two of them], ready to be delivered to us, or either of us, on or before the day of , 18 . Witness our hands and' seals, this day of 18 . In presence of A. B. [&«?.] f Witness's signatured T. Z. [Seal.] 217. The Same, with Agreement for an Umpire. [As in Form No. 216, to the §; continuing thus:} to M. N., 0. P., and O. R., all of , as arbitrators, who shall arbitrate, award, order, judge, and determine of and concerning the same. [Here insert, if desired, with power to award the payment of the costs [and of the expenses] incurred in such arbitration.] And we do mutually covenant and agree to and with each other, that the award to be made by the said arbitrators shall in all things by us and each of us, and by the(n') executors, administrators, and assigns of us and each of us, be well and faithfully kept, observed, and performed. Provided, however, that such award be made in writing, under the hands of the said arbitrators, ready to be delivered to us, or either of us, on or before the day of ,18 . And provided that, in case the said arbitrators do not so make their 1 award (J) on or before said day, the questions above mentioned shall be, and are hereby, submitted to the decision of such third person as shall be then, or shall theretofore(c) have been, appointed [in writing^)] by said arbitrators to act in such case as (a) Here insert " heirs," if the award 57 ; affirmed, 13 ib., 27. So, when the may affect interests in real property — e. g., agreement was, to have the controversy where a question of boundary or of ap- determined " by two appraisers, or by an praisal of lands to be taken for public use umpire to be appointed by such ap- is submitted, as in Roberts v. McNeil, 12 praisers to decide between them in ease Wend., 578; Wood v. Anbnrn and Eoches- of their disagreement;" and the ap- ter R. R. Co., 8 N. Y. (4 Seld.), 160. praisers, without attempting to determine (6) Under this phraseology in the sub- the question, appointed an umpire, it was mission, it will not be necessary to the held that he had power to hear it, in the validity of an award by an umpire that first instance, and his award was good, the arbitrators should have entered upon Butler v. Mayor, etc., of New York, 1 the trial of the controversy submitted. It Hill, 489 ; and 1 Barb., 325. will be sufficient that they agreed in ap- (c) Arbitrators may nominate an um- pointing the umpire, and that the clay pire before they proceed to the consid- named for delivering their award passed eration of the subject; and this is the without their having agreed upon and fairest way of choosing. Van Cortlandt made one. Thus, when the submission v. Underbill, 17 Johns., 405; Butler v. was, that if the arbitrators should not Mayor, etc., of New York, 1 Hill, 489; make an award within the time limited and 1 Barb., 825. the umpire should act, it was held, that (d) The appointment of an umpire need the omission of the arbitrators to act was not be in writing, unless required by the sufficient, without showing any disagree- submission. If the words, " in writing," ment. McKinstry v. Solomons, 2 Johns., in the above form, are omitted, the arbi- 7 98 ABBOTTS' FORMS. Submissions to Arbitration. umpire ; and the award so made and ready to be delivered by said umpire, on or before the day of , shall be valid and binding upon each of us, and the (a) executors, administrators, and assigns of each of us. in like manner as if it had been made by the arbitrators above named in person. Witness our hands and seals, this day of , 18 . In presence of A. B. [Seal.] [ Witness's signatured] Y. Z. [Seal] 218. Short Form of Submission.(e) The undersigned hereby mutually agree to submit all their matters in difference, of every name and kind, to the determination and award of M. N. of , as arbitrator [or, to M. N , 0. P., and Q. B., all of , as ar- bitrators], the said arbitrator [or, arbitrators, or, any two of them] to hear and determine the same [and. insert, if desired, and award the payment of the costs [and expenses] incurred in such arbitration], and make their award in writing, on or before the day of , 18 . Witness our hands, this day of , 18 . In presence of [Signatures.] [ Witness's signature.] 219. Special Submission; — Controversy between Several Persons on Either 8ide.(f) [As in Form 216, insertiny, instead of the words, "held by and between us," at the t, these words: held jointly, by and between the said A. B. and 0. D. of the one part, and the said W. X. and Y. Z. of the other part. 220. Special Submission; — Controversy as to Wages. Whereas a controversy exists between us, A. B. and Y. Z., both of , in relation to the wages due to Y. Z. from A. B., for services heretofore rendered by Y. Z. to A. B., as clerk [or, as foreman, or, as journeyman, or. as laborer.] Now, therefore, we, the undersigned A. B. and Y. Z. afore- said, do hereby mutually covenant and agree, to and with each other, to submit the controversy to [proceed as in Form No. 216, from the §; or, if an umpire is to be appointed, follow Form 217.] 221. Special Submission ; — Controversy as to an Account. Whereas, in respect to the account between the parties hereto, a copy ol which is hereto annexed, a controversy has arisen as to whether A. B. ever delivered the flour therein mentioned, or any part thereof, to Y. Z., and if so, with what price or value Y. Z. is chargeable therefor, and as to what trators can make the appointment by that there will be accord in the adjus*"- parol. Elmendorfs. Harris, 5 Wend., 516; merit of matters of detail arising in t!i« S. C, 23 Wend., 628. course of the proceeding. («) This form is only recommended for (/) In such a case, unless the submis- cases in which the matters in controversy sion be expressly confined to joint de- are regarded as of slight importance ; or mands, it will include individual demands where entire mutual confidence is felt also. Fidler v. Cooper. 19 Wend., 235. ARBITRATION AND AWARD. 99 Special Submissions. term of credit T. Z. is entitled to for the payment of the balance due from him to A. B. Now, therefore, we, the undersigned A. B. and Y. Z. aforesaid, do hereby mutually covenant and agree, to and with each other, to submit the said controversy to [proceed as in Form No. 216, from the §; or, if an •umpire is to be appointed, follow Form 217]. 222. Special Submission; — Controversy as to Breach of Warranty. "Whereas a controversy exists between us, A. B. and T. Z., both of , concerning the sale, warranty, and soundness of a certain horse, which it is alleged was sold by Y. Z. to A. B. aforesaid, upon a warranty that the said horse was sound in every respect, and which horse, it is alleged, is not and was not, at the time of such sale, sound in every respect. Now, there- fore [etc., as in Form 220]. 223. Special Submission; — Concerning the Settlement of Partnership Affairs. Whereas a controversy exists between us, A. B. and Y. Z., both of , concerning the winding up of the affairs of the firm of B. & Z., of which we, the said A. B. and Y. Z., were the partners, and the several claims by and between either of us arising out of said partnership,^) upon transac- tions subsequent to the day of ,18 .(h) Now, therefore, [etc., as in Form 220.] 224. Special Submission; — Controversy as to Annuity in Lieu of Dower. (i) Whereas A. B., as widow of B. B., deceased, was entitled to dower in all the farm in M., sold by Y. Z., heir of said B. B., to one N, and which had belonged to said B. B. in his lifetime, and said A. B. had agreed with said Y. Z. to take a sum of money, to be secured and piid quarterly to her during her life by said Y. Z., in lieu of said dower ; and, whereas, a controversy "has arisen between the parties hereto, as to what quarterly sum is a fair equivalent in lieu of said dower, and what amount of security therefor, and the nature of the same, shall be given by said Y. Z. to said A. B. Now, therefore, [etc., as in Form 220]. 225. Special Submission ; — Concerning Land and Trespasses. Whereas a controversy exists between us, A. B. and Y. Z., both of concerning the title [or, the right to possession, or both] to a tract of land situate in the town of M. and county of N., and known as the Smith farm, [or, and bounded and described as follows, giving description], and respect- ing damages claimed by A. B. from Y. Z., for trespasses alleged to have been committed by him and his servants thereon. Now, therefore, [etc., as in Form 220]. (g) This is broad enough to include discretion of the arbitrators to open old alaims for torts. Owen v. Boerum, 23 stated accounts. Emmet v. Hoyt, 17 Varb., 187. Wend., 410. (A) Without some Buch qualification as (i) This form is supported by Cox *. this in respect of time, it will .e in the Jagger, 2 Cow., 639. 100 ABBOTTS' FORMS. Arbitration Bonds. 226. Special Submission ; — Concerning Boundaries. Whereas a controversy exists between us, A. B. and Y. Z., both of , concerning the boundary and division lines of certain tracts of the parties hereto, situate in the town of M. and county of N. Now, thehefoke, [etc., as in Form 2201. 227. Arbitration Bond.(f) Know all men by these presents : That I, A. B , of the town of , in the county of , am held and firmly bound unto Y. Z., of the town of , in the county of , in the sura of dollars, lawful money of the United States, to be paid to the said Y. Z., or to his executors, ad- ministrators, or assigns ; for which payment, to be well and truly made, I bind myself, my heirs, executors, and administrators, firmly by these pres- ents. Sealed with my seal ; dated the day of ,18 The condition of this obligation is such: That if the above bounden A. B., his heirs, executors, and administrators, shall well and truly submit to the decision and award of [here name arbitrators] named, selected, and chosen arbitrators as well by and on the part and behalf of the said A. B. as of the said Y. Z., to arbitrate, award, order, judge, and determine, of and concerning(&) all and all manner of actions, cause and causes of actions, suits, controversies, claims, and demands whatsoever, now depending, exist- ing, or held, by and between the said A. B. and the said Y. Z. [here insert, if desired, with power to award the payment of the costs [and expenses] incurred in such arbitration] ; so that the said award be made in wri- ting, under the hands of the said [here name arbitrators], or any two of them, and ready to be delivered to the said parties, or such of them as shall desire the same, on or before the day of 18 ; * then this obligation to be void, otherwise to remain in full force. In presence of, A. B. [Seat.] [ Witness's signature.] 228. The Same, Where Appointment of an Umpire is Contemplated. [As in preceding form, inserting the following at the * before the words " then this obligation," at the end.] And if the said arbitrators shall not make such their award, of and con- cerning the premises, within the time limited as aforesaid, then if the said A. B., his heirs, executors, and administrators, and every of them, for his and their part and behalf, do and shall well and truly perform and keep the award and umpirage of R. S. (being a person indifferently chosen between the said parties for umpire), in and concerning the premises, so as (j) Where the agreement is by bond in (k) Or if the submission be limited, this form, each party gives a bond to the omit the next three lines, and instead, other, the obligor in the one being the state the matter submitted, as in. Forms obligee in the other 219-226. ARBITRATION AND AWARD. 101 Submission. Notice of Appointment. the said umpire do make and set down his award and umpirage in writing under his hand and seal, ready to be delivered to the said parties in differ- ence, on or before the day of , then, [etc.] 229. Agreement or Bond, Where the Arbitrators are to be Sworn. [As in Forms 21ti, 217, 218, or 227, inserting at the end the follow- ing :] But before proceeding to take any testimony therein, the said ar- bitrators shall be sworn " faithfully and fairly to hear and examine the said matters in controversy, and to make a just award according to the best of their understanding." 230. Submission Without Discontinuing a Pending Suit.{l) [Tnsert in either form of agreement or bond the following :] But it is her by agreed that this submission shall not operate as a discontinuance of a suit now pending, to which the said A. B. and Y. Z are parties, without an award made pursuant to the terms hereof; and that its effect as to such suit shall be merely to stay proceedings until such discontinuance, or until the submission shall become inoperative or be revoked. 231. Notice to the Arbitrators of their Appointment.(rn) Gentlemen — You are hereby notified that you have been chosen arbitrators on the part and behalf of each of the undersigned, to abritrate, award, ad- judge, and determine as to certain matters of difference specified in the submission of the undersigned, which will be produced before you [or, to determine a controversy existing between us concerning, here stating the matter as in the agreement or bond], and to make your award on or before the day of ; and you are requested to meet the undersigned at the house of J. K., in the town of aforesaid, on the day of, etc., at o'clock in the noon of that day, for the purpose of fixing upon a time and place for hearing the proofs and allegations of the said parties. [Date ] Yours, etc., A. B. To M. N., 0. P., and Q. R. Y. Z. 232. Notice of Hearing, for Adverse Party. (n) Sik— Please take notice, that a hearing in the matter of the arbitration, concerning certain differences between A. B. and Y. Z., will be had before the arbitrators, at the office of M. N., No. , street, in the city of , at o'clock in the noon. [Date.] [Signature.] [Address.] (Z) This form is sustained by Buel v. (I) The arbitrators cannot proceed ex Dewey, 22 Bow. Pr., 342. parte. Elmendorf v. Harris, 23 Wend., (m) Written notice is not important, 628 ; Jordan v. Hyatt, 3 Barb. 275. Bm bnt this form is the most convenient way written notice is not essential. of proceeding in most cases. 102 ABBOTTS FORMS. Arbitration. [Arbitrators' oath, if required by the agreement or bond, will be as in Form No. 255.] 233. Oath of Witness.(o) You do swear that the evidence you shall give to the arbitrators here present, in a certain issue joined [or, on certain matters of difference] be- tween A. B. and Y. Z., shall be the truth, the whole truth, and nothing but the truth ; so help you God. 234. Agreement to Extend the Time for Making an Award. It is hereby mutually agreed between the parties to the within [or, an- nexed] submission, that the time for making ready the award be and hereby is extended to the day of , 18 . Dated this day of , 18 . [Signatures.](jp) 235. Revocation of Arbitrators' Powers. Gentlemen — Please take notice, that I hereby revoke your powers as arbitrators under the submission made to you by Y. Z. and myself [in wri- ting, and dated] on the day of ,18 . [Date.] Yours, etc., [Signature and seal.](g) To M. ST., O. P., and Q. E., arbitrators, etc. 236. Notice of Revocation to Adverse Party. Sik— Please take notice, that I have this day revoked the powers of M. N., O. P., and Q. R , arbitrators chosen to settle the matters in contro- versy between us, by an instrument of which the following is a copy. Yours, etc., [Signature!] [Annex copy of Revocation, No. 235.] 237. Appointment of Umpire, After Disagreement of Arbitrators. To all to whom these presents- shall come, we, M. N., O. P., and Q. R., of , send greeting : Whekeas, by an agreement [or, bonds], bearing date the day of , 18 , differences were referred by A. B. and Y. Z. to our consideration, to hear, determine, and award upon the same, * and we are not able to de- termine such differences ; we have, therefore, selected and made choice of, and by these presents do appoint, S. T., of , for umpire, to arbitrate. (o) The arbitrators cannot administer (p) Seals are not necessary. Bloomer the oath, unless the submission is under v. Sherman, 5 Paige, 575. the statute, as in Forms 254-264. In other (j) The seal is necessary if the snbmis- cases, the oath must be administered by sion was under seal. Van Antwerp v. a magistrate. People v. Townsend, 5 Stewart, 8 Johns., 125. Otherwise, it is How. Pr., 815 ; Matter of Wells, 1 N. Y. not essential. log Oh., 189. ARBITRATION AND AWARD. 103 Choice of Umpire. Awards. award, order, judge, and determine the said differences between the said A. B. and Y. Z., pursuant to said agreement [or, bonds]. Witness our hands, this day of , 18 .(r) [Signatures.] 238. The Same, Before the Eearing.{s) [As in preceding form to the *, continuing thus:] We, therefore, have se- lected and made choice of, and by these presents do appoint, S. T., of , for umpire, to arbitrate, award, order, judge, and determine the said differ- ences between the said A. B and Y. Z.. pursuant to said agreement [or, bonds], in case we do not agree upon and make an award on or before the day of , 18 . Witness our hands, this day of , 18 .(r) [Signatures.] 239. Award by One or More Arbitrators. Whereas matters in controversy between A. B. and Y. Z., of , were by them submitted to the undersigned M. N., as arbitrator [or, M. N., O. P., and Q. R., as arbitrators], as by their submission in writing [or, by the condition of their respective bonds of submission, executed by the said parties respectively, each to the other], and bearing date the day of , 18 , more fully appears. Now, therefore, we, the arbitrators mentioned in the said submission [or, bonds], * having [been first duly sworn according to law. and having] heard the proofs and allegations of the parties [or, of A. B., the said Y. Z. not appearing after due notice to him], and having examined the matters in controversy by them submitted, do make this award in writing [or, in writing and under seal] — that is to say,t [Here state the things awarded to be done — see following forms.] In witness whereof. I [or, we] have subscribed these presents, this day of , one thousand eight hundred and In the presence of [Signatures, and seals also, if required [ Witness's signature.] by the submission.} 240. Award by Umpire. Whereas matters in controversy between A. B. and Y. Z. were by them submitted to XI. N., O. P., and Q. R., as arbitrators, as by their submission in writing [or, by the condition of their respective bonds of submission ex- ecuted by the parties to each other], bearing date the day of , more fully appears, whereby it was provided that in case said arbitrators should not make their award on or before the day of , 18 , the said questions should be and were submitted to the decision of such third person as should be then, or should theretofore, have been appointed [in wri- ting, or, in writing and under seal] by said arbitrators to act in such case as umpire, the award by such umpire to be made and reaiy to be delivered on (r) If the nrocoeding is under the stat- an affidavit made by him, like Form No. ate, this should be attested by a siibscrib- 258. ing witness, so that it may be proved by («) See note (q). 104 ABBOTTS' FORMS. Awards. or before the day of ,18 . And whereas the said M. N., 0. P., and Q. R. met upon the said arbitration, and did not make their award be- tween the said parties by the time limited in and by said submission [or, by the condition of the said bonds], and, in pursuance of the said submission [or, bonds], have chosen me as umpire [by appointment in writing, hereto annexed], to settle and determine the matters in difference between the said parties. Now, thebefoee, I, the said umpire, having been first duly sworn according to law, and having heard the proofs and allegations of the parties [or, of A. B., the said Y. Z. not appearing after due notice to him], and having examined the matters in controversy by them submitted therein, do therefore make this award in writing [or, in writing and under seal] — that is to say, t [Sere state the things awarded to he done — see following forms ] In witness whekeof, I have subscribed these presents, this day of ,18 . [Signature, and seal also, if required In the presence of by the submission.] [Witness's signature^ 241. Award for Payment of Money in Full. [As in Form 239 or 240, inserting at the t the following :] The said Y. Z. shall pay, or cause to be paid, to the said A. B. the sum of dollars, at , within days from the date hereof, in full payment, dis- > charge, and satisfaction of and for all moneys, debts, and demands and claims whatever [referred to in the submission] due or owing from him the said Y. Z. to the said A. B. at any time before the date of said submission, f 242. Award for Damages for Breach of Warranty. [As in Form 289 or 240 , inserting at the + :] That the said A. B. did sell to the said Y. Z. a certain horse on the day of last, warranting him to be sound in every respect, for the price of one hundred and fifty dollars. The said horse is, and was at the time of such sale, unsound, and worth only the sum of forty dollars ; and the said A. B. should pay to the said Y. Z. one hundred and ten dollars for the difference in price, and thirty dollars for the expenses of keeping him, besides the costs of this arbitration. 1 243. Award for Delivery of Goods. [As in Form 239 or 240, inserting :] That the said Y. Z. shall freely de- liver up to the said A. B., on request by him to be made, one trundle-bed, and three pair of sheets thereto belonging, one mahogany table, one dozen chairs, and one silver tea-set, all of which were the goods c f the late M. N., deceased. 244. Award for Delivery of Writings. [As in Form 239 or 240, inserting :] That the said A. B. shall freely de- liver up to the said Y. Z., on or before the day of next ensuing the date hereof, at his dwelling-house in aforesaid, all leases, deeds, and wri- tings whatsoever concerning the estate of the said Y. Z. now in the hands ARBITRATION AND AWARD. 10£ Awards. and possession of the said A. B., or of any other person in trust for him, especially the leases of the dwelling-house [etc., describing the particular papers]. l 245. Award for Delivering up Writings to he Cancelled. [As in Form 239 or 240, inserting :] That the said A. B. shall deliver up unto the said Y. Z. a certain indenture of mortgage made by to , and dated on the day of , 18 , cancelled or to be cancelled. 246. Award for Giving a Bond for Payment of Money. [As in Form 239 or 240, inserting :] That the said A. B., within days after notice of this award, shall well and sufficiently make, seal, and deliver to the said Y. Z. a bond or obligation in the penal sum of dollars, con- ditioned for the payment of dollars to the said Y. Z., his executors, administrators, and assigns, on or before the day of , ! 18 , with interest at per cent, per annum, payable semiannually from this date. 247. Award for Assignment of a Mortgage. [As in Form 239 or 240, inserting :] The said Y. Z. shall make, execute, and deliver to the said A. B.. on or before the day of instant, a good and sufficient assignment of a certain bond and mortgage, executed by one I. J. to said Y. Z., etc. ; and the said A. B. shall pay, or cause to be paid, to the said Y. Z., the sum of dollars, immediately upon the execution and delivery of the said assignment. 248. Award for Specific Performance of Agreement to Assign a Lease. [As in Form 239 or 240, inserting :] That the said A. B., or hia heirs, shall and do, on or before the day of ne'xt ensuing the date hereof, make and execute to said Y. Z. a good and sufficient conveyance of his interest as lessee for years of a certain farm in the possession of the said A. B., situate at , according to the true intent and meaning of certain articles of agreement, bearing date on or about the day of , and made between the said A. B. of the one part, and the said Y. Z. of the other part, or as near the same as the present circumstances will admit. 249. Award for Specific Performance of Contract to Convey Land. [As in Form 239 or 240, inserting :] That -A. B. shall, on or before the day of next, by such deed or deeds as the said named Y. Z., his heirs or assigns, or his or their counsel shall advise, well and sufficiently grant, convey, and assure unto the said Y. Z., his heirs and assigns, for- ever, a certain piece of ground, situated in , and known and de- scribed as follows [describing it]. And that upon the execution of the said conveyance, the said Y. Z. shall pay, or cause to be paid, unto the said A. B. the sum of dollars, and shall also give security by bond and a mortgage of the premises (if required) for the payment of the sum of dollars, in manner following — to wit, etc. 106 ABBOTTS' FORMS. Awards. 250. Provision for the Discontinuance of All Suits. [Insei t in previous forms :] And we do further award, that all actions and suits commenced, Drought, or depending between the said A. B. and Y. Z., for any matter, cause, or thing whatsoever, arising or happening at the time of, or before their entering into the said submission [or, bonds of ar- bitration], shall, from henceforth, cease and determine; and be no further prosecuted or proceeded in by them, or either of them, or by their, or either of their means, consent, or procurement. 251 . For Discontinuance of Suit, with Costs. {Insert in preceding forms :] And we do further award, that the said Y. Z. shall forthwith cease to prosecute, and shall discontinue a certain suit commenced by him, against the said A. B., in the Court of county, now pending and undetermined in said court; and the said A. B. shall pay, or cause to be paid, to the said Y. Z., on or before the day of , the sum of dollars, in full satisfaction of the costs, charges, and expenses incurred by the said Y. Z., in and about the prosecution of his suit as aforesaid. 252. For General Releases. [Insert in either of preceding forms :] And we do further award that the said A. B. and Y. Z. shall, within days next ensuing the date hereof, execute unto each other, under seal, mutual and general releases of all ac- tions, cause and causes of action, suits, controversies, claims, and demands whatsoever, for or by reason of any matter, cause, or thing, from the be- ginning of the world down to the date of the said submission [or, said bonds]. 253. For Costs of the Arbitration. [Insert in preceding forms :] And we do further award, that the sum of dollars, being the expenses and charges incident to this arbitration, shall be paid by the said A. B. [or, by them, the said A. B. and Y. Z., in equal shares]. II. Abbiteatiow Undeb the Statute. 254. Submission. [The submission will be by bond or agreement, in the form of No. 216, 217, 218, 227, or 228, with the addition of the following clause at the end, before the attestations.](u) And it is hereby agreed that judgment in the Supreme Court of the State of [or, County Court of county, («) In an arbitration under the statute, that the submission be acknowledged, the it is essential that the bond or agreement certificate may be framed by consulting of submission have a subscribing witness, the forms given in the chapter of Ao- In those States whfre it is required knowledgment and Proof of Deeds. ARBITRATION AND AWARD. 107 Statutory Arbitration. or name any other court of record] shall be rendered upon the award to he made as aforesaid, to the end that all matters in controversy between the said parties [or, the above-mentioned matter in controversy] may be finally concluded. [Notice of Appointment or of Searing, as in Form 231 or 232.] 255. Oath of Arbitrators. We, the undersigned, arbitrators, appointed by and between A. B. and Y. Z., do swear that we, respectively, will faithfully and fairly hear and examine the matters in controversy between the parties above named, and make a just award thereon, according to the best of our understanding. Sworn before me, tbis day of , 18 . [Signatures.] [Signature of officer. ](v) 256. Oath of an Applicant to a Justice of the Peace for a Subpama. You do swear that you will make true answers to such questions as I shall put to you, touching the necessity and propriety of my issuing a sub- poena upon your present application therefor. 257. Subpmna to Appear Before Arbitrators. The People of the State of New York, to H. I. and J. K, Greeting: You are commanded to be and appear before M. N, O. P., and Q. R., or any two or more of them, arbitrators chosen to determine a controversy between A. B. and Y. Z., at the office of M. N., in the village of , on the day of , 18 , at o'clock in the noon, then and there to testify and give evidence in relation to said controversy before said arbi- trators, on the part of said ; and hereof fail not at your peril. Given under my hand, this day of ,18 . S. J., Justice of the peace. [Oath of Witness, as in Form 233.] [Agreement to Extend Time for Award, as in Form 234] [Awards, as in Forms 239 to 253.] 258. Affidavit to the Submission, by the Subscribing Witness. County of , ss. J. K., of , being duly sworn, says that heknows(w) [name the obligor i» the bond, or the subscribers of the agreement, as the case may be] who (») Administered, under the New York contents of a certificate of proof by wit statute, by any judge of a court of record, ness, it was held not necessary that the justice of the peace, or commissioner of certificate state that the officer knew the deeds. Laws of 1843, chap. 187. witness, nor that the witness knew the (w) Under a statute which, like that re- party subscribing. Jackson v. Philips, lating tc arbitration, did not prescribe the 9 Cow., 94. 108 ABBOTTS' FORMS. Statutory Arbitration. executed the annexed instrument, and that lie was present and saw said A. B. [and Y. Z.] [or say, and that said A. B and Y. Z. did, at the time ot execution, acknowledge to him that they did] sign, seal, and deliver the same as his [or, their] free act and deed, for the purposes therein men- tioned ;(x) and that the name A. B. [and the name Y. Z.], subscribed to the said bond [or, agreement] is [each] the proper and genuine signature of the said A. B. [and Y. Z. respectively] ; and that this deponent set his name as a subscribing witness to the same, at the time of its execution and delivery by the said A. B. [and Y. Z.] as aforesaid. [Signature of deponent.] Sworn before me, this day of , 18 . [Signature of officer.] 259. Affidavit to the Award, by the Subscribing Witness. County of , ss. 3. K., of , being duly sworn, says: That he knows [name the arbi- trators], who made the annexed award, and that he was present and saw said [arbitrators] sign, publish, and declare [or say, and that said arbitra- tors did acknowledge to him that they did sign, publish, and declare] the same as their final award and arbitration in writing, between A. B., of , and Y. Z., of , on the day of , 18 ; and that the names, M. N., O. P., and Q. R., subscribed to the said award, are the proper and genuine signatures of the said M. IS., 0. P., and Q. R. ; and that this deponent set his name as a subscribing witness to the said award, at the time of its execution and publication as aforesaid. Sworn [etc., as in Form 258.] [Signature of deponent^] 260. The Same, by the Arbitrators. County of , ss. M. IS., O. P., and Q. R., the arbitrators described in the wit'o" i™, an- nexed] award, being duly severally sworn, say that on the day p»" , 18 , they, as such arbitrators, signed, published, and declared tha •**& award, as their final award and arbitration in writing, between A. B, of , and Y. Z., of . [Signatures of arbitrators.] Sworn [etc., as in Form 258.] 261. Proof of Service of Award. OOTOSTTT OF i SS. S. T., of , being duly sworn, says that on the day of , 18 at , in the town of , he served the within award [or, the award of which the within is a counterpart], upon A. B. and Y. Z., by delivering to and leaving with them [a true copy of] said original award. [Signature of deponent.] Sworn [etc., as in Form 258.] (u) An acknowledgment made a long ficient in HoL'anbach v. Fleming, 6 MM, time after the transaction, was held insuf- 803. ARBITRATION" AND AWARD. 109 Statutory Arbitration. 262. Notice of Application for Judgment. Court. In the matter of the arbitration be- tween A. B. and Y. Z. Please take notice, that the undersigned will apply to the court [at a special term to be held] at the City-hall in the city of , on the day of ,18 , at o'clock in the noon, or as soon thereafter as coun- sel can be heard, for an order confirming the award heretofore made in this matter, and for judgment thereon, with costs. f Signature.} [Bate.] [Address.] 263. Order Confirming Award. At a special term held on the [Title as in preceding form.] day of , 18 , at Present Hon. M. N., Justice. On reading and filing notice of motion and proof of due service thereof, and the annexed submission and proof of the execution thereof by the affi- davit of O. P., dated the day of , 18 , and the annexed award pursuant thereto, and proof of the execution thereof by the affidavit oi Q. R., dated the day of , 18 , and after hearing G. H. for the said A. B., and I. J. [or, and no one appearing] for the said Y. Z. .Oederbd, that the said award be and hereby is confirmed, and judgment directed thereon according to the statute, with costs to be taxed [or insert any special directions given as to costs.] Enter, [Signature of Justice.] 264. Judgment on Award. [Title as in preceding form.] Certain matters in controversy between A. B. and Y. Z. having been by them submitted to M. N. as arbitrator, as by their submission in writing [or. by the condition of their respective bonds of submission executed by the parties to each other respectively], and bearing date the day of 18 , and hereto annexed, more fully appears; and the said arbitratoi having been first duly sworn according to law, and having heard the proofa and allegations of the parties respectively [or, of said A. B., the said Y. Z. not appearing after due notice to him given, as appears by the affidavit of , dated the day of , and annexed hereto] ; and the said arbitrator having duly made, published, and declared his award in writing [and under seal], which is hereunto annexed, and no proceedings to modify said award having been taken [or if any have been had, recite them], and the court having, by order duly made, and dated on the day of , con- firmed said award, and authorized judgment to be entered thereon with costs [here state special directU n as to costs, if any]. 110 ABBOTTS' FORMS. Arrears of Pay and Bounty — Army and Navy. Now, therefoke, it is adjudged [etc., proceeding as in other cases of judgments in cicil actions, according to the relief awarded. See Foems of PfiAOTIOB, Vol. II.] OHAPTEE Yin. ARREARS OF PAY AND BOUNTY. Arrears of pay, due an officer or a soldier at the time of Ms decease, are payable to the following persons, in the order named : 1. (If the deceased was married) to his widow. 2. (If no widow survives) to his child or children, (through their guardian, if minors). 3. (If he died unmarried) to the father. 4. (If the father is dead) to the mother. 5. (If both parents are dead) to the brothers and sisters jointly. Lastly, To the heirs generally. The bounty of $100 is payable to the relatives of a deceased soldier in the following order — viz., 1. To the widow (if there be one). 2. To the children (if any), share and share alike. 3. To the father (provided he has not aban- doned the support of his family). 4. To the mother, if the father be dead, or has abandoned the support of his family. 5. To the brothers and sisters. The father, mother, and brothers and sisters must be residents of the United States, in order to receive the bounty. The above is payable to the relatives of all volunteers in the war of the re- bellion, and to the relatives of all who enlisted in the regular service since July 1, 1861, or who enlisted during the year 1862. Widows of commissioned officers, and of soldiers dying after being dis- charged, are not entitled to bounty, nor are the widows of deceased three montus' volunteers. No money can be paid to the heirs of a deceased soldier who have in any manner aided -or abetted the existing rebellion. Soldiers discharged on account of wounds received in battle are entitled to the bounty of $100. No other soldier is entitled unless he has served for a period of two years, or during the war, if sooner ended. The application and deposition required must be subscribed and sworn to before a judge, commissioner, notary public, or justice of the peace, duly authorized to administer oaths, accompanied by the certificate and seal of a court of record as to the fact of the said judge, etc., being duly commissioned, and acting in his official capacity at the time of the execution of the foregoing papers. The taking out of "letters of administration" is unnecessary, except in such cases as it may be required by the accounting, officers. All claims for arrears of pay and bounty may be sent directly to the office of the Second Auditor of the Treasury Department, Washington. Letters of inquiry in relation to a claim should specify the name of the de- ceased, and the company, regiment, and State to which he belonged ; and in all , cases, to secure an answer, the name, post-office, and State of the writer should be distinctly written. PAGE 265. Invalid's application for arrears of pay and bounty Ill 266. Widow's application for the same .' Ill 267. Children's application 112 268. Father's application 113 269. Mother's application US ?70. Brothers' and sisters' application ]• ARREARS OF PAY AND BOUNTY. Ill Application by Invalid : By Widow 265. Invalid's Application for Arrears of Pay and Bounty, State of [designating where the ap- ) County of plication is sworn to.] ) On this day of , 18 , personally appeared before me, a [here give name and title of officer duly authorized to administer oaths] in and '"or the county and State aforesaid, A. B., of , in the county of , md State of , who being duly sworn, declares that his age is y-ears ;* that he is the same A. B. who was a [here designate rank — e. g., private, or, corporal], in Company [designating it by its letter], commanded by [here give name of captain], in the Regiment of [here name State] volunteers, cavalry [or, infantry, or, artillery], who was honorably discharged from the service of the United States at ' , in the State ^>f , on or about the day of , 18 , by reason of [here set forth the cause, etc.] This declaration is made to recover all arrears of pay and other allow ances due said A. B. from the United States, and the bounty provided by the section of the act of Congress, approved [date of approval]. And he hereby appoints J. K, of , as his lawful attorney, and authorizes him to present and prosecute this claim, and to receive and receipt for any orders or moneys that may be issued or paid in satisfaction thereof. The post-office address of the claimant is as follows : [stating it.] [Signature of claimant] Also personally appeared before me, M. N". and O. P., of the county of , and State of , to me well known as credible persons, who, being duly sworn, declare that they have been for years acquainted with the above-named A. B., who was a [here designate rank, as abort] in Company [letter of company] of the Regiment of [designate it, as above], and know that the applicant is the identical person he represents himself to be; that they saw him sign the foregoing declaration; and that they have no interest whatever in this application. [Signatures of witnesses.] Sworn to and subscribed before me, this day of , 18 ; and I hereby certify that I have no interest, direct or indirect, in the prosecution of this claim. [Signature and title of magistrate.] 266. Widow's Application for Arrears of Pay and Bounty. 'State of [designating where the ap- ) County of plication is sworn to] ) On this day of ,18, personally appeared before me, a [here give name and title of officer duly authorized to administer oaths] in and for the county and State aforesaid, 0. B., of , in the county of , and State of , who, being duly sworn, declares that her age is years ;* that she is the widow of A. B., late of the county of , and State of , who was a [here designate rank — e. g., corporal, or, private] _Ti Company [letter of comvany], commanded by [here give name of captain], 'r. the Regiment of [here name State] volunteers, cavalry [or, infantry, >• artillery], who ) State op [designating where the ap- } County of plication is sworn to.] j On this day of ,18 , personally appeared before me, a J" here give name and title of officer duly authorized to administer oaths], ir give the here to refer to the book and page where day of reoording. ASSIGNMENTS. 127 Partnership Interest. 7. Z., both of , under the firm-name of B. & Z , which said co- partnership is hereby dissolved. Now, therefore, this indenture, made this day of , in the year , between the said A. B., party of the first part, and kie said Y. Z., party of the second part, witnes>eth: That the said A. B doth hereby sell and assign to the said Y. Z. his moiety of all the stock in trade, and prop- erty, of every description, belonging to the said copartnership, wherever the same may be, together with all debts and things in action, due said firm, from all persons, to have and to hold the same to the said Y. Z., and'his assigns, forever, in trust, for the following purposes — namely : That the said Y. Z. shall sell and dispose of all the property and effects belong- ing to said firm, at such time and in such manner as he may think prudent; and shall, with reasonable diligence, collect all the debts due said firm ; and shall, out of the proceeds of said sales, and with the moneys thus collected, pay all the debts now due from said firm, as far as the proceeds of said sales, and the sums of money collected, will go ; and after fully satisfying all demands against said firm, if there be any surplus, shall pay over one moiety thereof to said A. B., or his representatives. And the said A. B. doth hereby constitute ^e said Y. Z. his attorney, irrevocable, in his the said Y. Z.'s own name, or in the name of the said firm, to collect all debts due said firm ; to institute and prosecute suits for the recovery of said debts, or to compound the same, as he may judge most expedient ; to defend all suits against said firm ; to execute all such ac- quittances as may be necessary; and, generally, to do all such acts and things :is may be necessary or proper, for complete settlement of all the iusine-is and concerns of the said copartnership. And the said Y. Z , for himself, and his heirs, executors, and adminis- trators, hereby covenants with the said A. B., and his executors, adminis- trators, and assigns, that he will sell and dispose of all the partnership property and effects, to the best advantage; that he will use his best en- deavors to collect all debts due said firm ; and that he will faithfully apply the proceeds of sales, and the moneys collected, to the payment of all debts due from said firm, as far as the same will go ; and after discharging all such debts, will pay over to the said A. B., or his representatives, ' one moiety of any surplus that may remain ; and further, that he will keep an accurate account of all moneys received by him, for goods sold or debts collected, as well as of all moneys paid out, and will render a just account thereof to the said A. B., or his representatives. And the said A. B., for himself, his heirs, executors, and administrators, covenants with the said Y. Z., his executors, administrators, and assigns, that if it shall be found that the debts due from said firm exceed the amount of moneys received from the sale of said partnership property, and the debts collected, he will pay the said Y. Z., or his assigns, one mrrjty of any balance that may then be found due from the said firm. In witness, etc. 128 ABBOTTS' FORMS. Patent Rights. 296. Assignment of Entire Interest in Patentable Invention.Qc) Whereas, I, A. B., of , have invented certain new and useful im- provements in ploughs, for which I am about to make application for letters patent of the United States ; and whereas Y. Z., of , his agreed to purchase from me all the right, title, and interest which I have, or may have, in and to the said invention in consequence of the grant of letters patent therefor, and has paid to me, the said A. B., the sum of dollars, the receipt of which is hereby acknowledged : Now, this indenture wit- nesseth, that for and in consideration of the said sum to me paid, I have assigned and transferred, and do hereby assign and transfer, to the said T. Z., the full and exclusive right to all the improvements made by me, as fully set forth and described in the specification which I have prepared and executed preparatory to the obtaining of letters patent therefor. And I do hereby authorize and request the Commissioner of Patents to issue the said letters patent to the said Y. Z., as the assignee of my whole right and title thereto, for the sole use and behoof of the said Y. Z., and his legal representatives. In testimony whereof, I have hereunto set my hand and affixed my seal, this day of , 18 . Sealed and delivered in presence of A. B. [Seal] [Signatures of two witnesses.] 297. Assignment of Part Jnterest. "Whereas, I, A. B., of , did obtain letters patent of the United Statee for certain improvements in ploughs, which letters patent bear date the day of ' , 18 ; and whereas Y. Z., of , is desirous of acquiring an interest therein : . Now, this indenture witnesseth, that for and in con- sideration of the sum of dollars, to me in hand paid, the receipt of which is hereby acknowledged, I have assigned, sold, and set over, and do hereby assign, sell, and set over, unto the said Y. Z., all the right, title, and interest which I have in the said invention, as secured to me by said letters (k) The above form and that which fol- An inventor can assign his entire right lows it are the forms of assignments of before a patent is obtained, bo as to enable patent interests, recommended in the offi- the assignee to take out a patent in his cial instructions issued from the Patent- own name ; but the assignment must first Office. be recorded, and the specification sworn The assignee of an invention may have to by the inventor, the patent issued to him directly, but this After a patent is obtained, the patentee is held to apply only to an assignee of an may grant the right to make or use the entire interest. "When the inventor as- thing patented, in any specified portion signs the entire interest to two or more of the United States, persons, the patent will be issued to them Every assignment or grant of a patent jointly. But if he assigns only a part, re- should be recorded within three months taining a portion in himself, a patent will from its date ; but, if recorded after that not be issued to him and his assignee time, it will protect the assignee or jointly. He may, however, make himself grantee against any one purchasing after an assignee of a part interest. theassignmentorgrantia placed on record. ASSIGNMENTS. 129 Policy of Insurance. patent, for, to, and in the several States of New York, New Jersey, and Pennsylvania, and in no other place or places ; the same to be held and en- joyed by the said Y. Z., for his own use and behoof, and for the use and behoof of his legal representatives, to the full end of the term for which said letters patent are granted, as fully and entirely as the same would have been held and enjoyed by me had this assignment and sale not been made In testimony whereof, I have hereunto set my hand and affixed my seal, this day of , 18 . Sealed and delivered in presence of A. B. [Seal.] [Signatures of two witnesses.] 298. Assignment of Letters Patent. Know all men by these presents, that whereas I, A. B., of , did obtain letters patent of the United States for certain improvements in clocks, which letters patent bear date the day of , 18 ; and whereas Y. Z., of , is desirous of purchasing from me all the right, title, and interest which I have in and to the said invention, in consequence of the grant of letters patent therefor. Now I, the said A. B., in con- sideration of dollars [to me paid before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged], have sold, assigned, transferred, and set over, and by these presents do sell, assign, transfer, and set over, unto the said Y. Z., his executors, administrators, and assigns, all the right, title, and interest which I have in and to the said in- vention, as secured to me by the said letters patent, to have and to hold the same to the said Y. Z., his executors, administrators, and assigns, for his and their own use and behoof, to the full end of the term for which the said letters patent were granted, as fully and entirely as the same would have been held and enjoyed by me had this assignment not been made. In witness whereof, I have hereunto set my hand and seal, this day of , 18 . Sealed and delivered in presence of A. B. [Seal.] f Signatures of two witnesses.] 299. Assignment of Policy of Insurance. Know all men by these presents, that whereas the Insurance Company have heretofore, for value received, issued to me their policy of insurance, in writing, dated the day of , 18 , whereby they insured the building [specify the building insu: ed] against loss or damage by fire [or, the life of , or otherwise state the nature of the policy to be assigned] in the sum of dollars. Now I, A. B., of , in consideration of dollars, lawful money of the United States [to me paid before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged], have sold, assigned, transferred, and set over, an' by these presents do sell, assign, transfer, aad -set over, unto Y Z., of , the said policy of insurance, and all sum 130 ABBOTTS' FOKMS. Recipe. Sheriff's Assignment. and sums of money, interest, benefit and advantage, whatsoever, now due, or hereafter to arise, or to be had or made, by virtue thereof; to have and to hold the same unto the said Y. Z., and his executors, jdmiuistrators, and assigns, forever. In witness, etc. 300. Approval, to be Indorsed on the Preceding Assignment. The above assignment is approved. M. K, President [or, Secretary] of the Insurance Company. 301. Assignment of Recipe for Making a Medicine. Know all men by these presents, that whereas I, A. B., of , am the inventor and proprietor of a certain method of manufacturing a certain useful and marketable medicine known as the Eagle Tonic Bitters, accord ing to a recipe in my possession. Now I, the said A. B., in consideration that Y. Z., of , has made and delivered to me his covenant in writing and under seal, to pay to me the sum of dollars in each and every Tear for years, out of the profits of him, or his executors, administrators, or assigns, in making and selling said medicine, have elivered unto the said Y. Z. a recipe, or paper writing, containing directions for manufacturing said medicine, and have sold, assigned, transferred, and set over, and by the?e presents do sell, assign, transfer, and set over, unto the said Y. Z., the exclusive right as against me, and my executors, administrators, and assigns, to manufacture and sell the said medicine forever. And I do for myself, my executors, administrators, and assigns, covenant and agree to and with the said Y. Z., his executors, administrators, and assigns, that the said recipe contains full, true, and exact directions for making the said medicine ; that I have not heretofore, and will not at any time hereafter, without the consent of him or them, directly or indirectly, disclose the secret of the composition thereof; and that I will not, without the like consent, make or compound for sale, or he in any way interested in making or compounding for sale the said medicine, or any medicine cou- taining the same or similar ingredients, and designed for the like purpose. In witness, etc. 302. Assignment by a Sheriff, to his Successor in Office. This indenture, made this day of, etc., between A. B., former sheriff of the county of , of the first' part, and Y. Z., the present sheriff thereof, of the second part, witnesseth : That the said A. B. doth, by and with these presents, deliver to the said Y. Z., his said successor, the jail of the said county, with its appurtenances, with the property of the .said county therein, all the prisoners confined therein, all process, orders, rules, commitments, and all other papers and documents, in the custody of the "aid A. B., as former sheriff as aforesaid, authorizing or relating to the AbSIliNMfiJfl'lB. 131 Stock. Wages. :,onfinement of such prisoners, mid each and every of them ; and in those 3a I further covenant and agree, to and with the said Y. Z., his ex- ecutors, administrators, and assigns, that at the request of him or them, I and my executors, administrators, and assigns, shall and will at all times hereafter execute any instrnment that may be necessary to vest completely in him or them all my right, title, and interest to said property, scrip, and stock, and to enable him or them to possess, control, enjoy, and transfer all the property and choses in action herein assigned, or intended to be assigned. (1) In Harper v. Eaymond, 3 Sosw., 29, anoe of the contract, they mny be read and 7 Abbotts' Pr., 182, it was held th.«.t together to determine the intent ; but if where a contract for an assignment of the assignment is unequivocal, its termi stock is made, and an assignment is after- must control, wards delivered and accepted in pureu- 132 ABBOTTS' FORMS. Miscellaneous Property. Corporate Assignment. 304. Assignment of Wages Due. [As in Form 275 to the *, continuing thus :] any and all sum or sums ot money now due, or to grow due, to me from M. N., as wages for my services as seaman on board the ship , during her voyage from New York to Liverpool and back in the year 18 [or, as journeyman carpenter, between the day of , 18 , and the day of , 18 , or otherwise specify the services for t n \ich wages are claimed]. And I do hereby give the said Y. Z., his execu ji*s, administrators, and assigns, the full power and authority to ask, demand, collect, roceive, compound, and give acquittance for the same or any part thereof, and in my name or otherwise, but at his or their own cost, to prosecute and withdraw any suits or proceedings at law or in equity therefor. 305. Assignment of Miscellaneous Property, Described in a Schedule.{m) [As in Firm 275 to the *, continuing thus :] all the goods, wares, mer- chandisfl. notes, accounts, debts, demands [or otherwise, according to the conten's of the schedule] specified in the schedule annexed to this assign- ment to have and to hold the same unto the said Y. Z., his executors, ad- mir .strators, and assigns, forever, to and for his and their own proper use and benefit. [Add power to sue, and special covenants such as may be appropriate to the nature of (he scheduled property, forms for which will be found be- low. Annex schedule designating the property to be assigned.] 306. Assignment by a Corporation. Know all men by these presents, that we, the A. B. Company, of , a corporation organized under the laws of the State of , and having a principal office at , in said State, in pursuance of a resolution of the directors of the said company, passed on the day of , 18 , in consideration of dollars [to us paid before the sealing and delivery ot these presents, the receipt whereof is hereby acknowledged], have sold, assigned, transferred, and set over, and by these presents do sell, assign, transfer, and set over, unto Y. Z., of , all the shafting, machinery, tools dies, moulds, furniture, and fixtures belonging to ns, and contained in our factory building at ; also all the stock and material of every kind, whether in a raw, manufactured, or partially manufactured state ; all farm produce and farming implements, and all office and household furniture, and fixtures of every kind, belonging to us and contained in our building, and on our premises at , and in our office at ; together with (m) An instrument by which the assignor all rights thereto appertaining, which are declares 'hat he assigns^ etc., "all his prop- assignable in their nature. A right of ac- erty and estate of every name, kind, nature, tion for the conversion of chattels belong- and description," is sufficiently broad to ing to the assignor,will pass by such words. ">«ss all *ho property of the i"sjgnor, and McKee v. Judd, 12 N. Y (2 Kern.), 622, ASSIGNMENTS IN TRUST FOE CREDITORS. 133 The Eight to make Preferences. all goods and merchandise belonging to us on the day of ,18 , in the hanrls of [running any agents of the company Jiolding its goods for sale]. For a more full and accurate description of the property hereby conveyed, reference is made to an inventory of said property, bearing date on the day of , 18 , and contained in the Inventory Book of said company [or otherwise designate the inventory]. In witness whereof, the said company have hereto affixed their seal, and the president and secretary their signatures, this day of , 18 . In presence of M. N., President. (Witness's name.] [Corporate seal.] O. P., Secretary. CHAPTEE X. ASSIGNMENTS IN TRUST FOR CREDITORS. What is commonly known as a general assignment, or an assignment in trust for the benefit of creditors, is usually a transfer of all, or the bulk of the property of one who finds himself to be insolvent, to a trustee, upon trust to sell it and distribute the proceeds among the creditors of the insolvent. As respects the way in which the various creditors shall share in the distribu- tion of their debtor's assets, the debtor, in the absence of legislation to the con- trary, may distribute his property among them as he pleases.(a) To restrain frauds and mischief arising under the free operation of this rule, the statute 1!? Eliz., ch. 5, was passed. It recites that transfers of property were often made with intent to " delay, hinder, and defraud creditors and others" of their just and lawful demands ; and declares every transfer of property made with such intent to be void as against the persons delayed, etc. The principle of this statute has been generally adopted throughout the United States as a part of our common law.(6) Irrespective of any special statute in the particular State, the validity of an assignment, upon its face, is ordinarily tested by inquiring whether its provisions are such that it tends to delay, hinder, or defraud creditors ; so that it falls witliin the prohibition of the statute of Elizabeth. < In addition to the adoption of the principle of the English statute as a part of our jurisprudence upon this subject, many of the United States have passed special statutes ; — either recognizing the right of a debtor to give certain cred- itors a preference over others in the distribution of the property he may assign, but providing strict guards against fraud in the exercise of that right ;(c) or (o) Jackson v. Browneli, 3 Cai., 222; 438; Cunningham «. Freeborn, 11 Wend., McMenomy v. Ferrers, 3 Johns., 71; 241. Wilkes s. Ferris, 5 lb., 835 ; Hyslop v. (b) See 2 Kent's Comm. [440], 548; 4 /*. Clarke, 14 lb., 458 ; Murray v. Eiggs, 15 [463], 510 ; 1 Story's Eq., § 853. lb., 571 ; Hendricks ». Eobinson, 2 Johns. (o) Such a statute is that passed in New Ch., 283 ; affirmed, 17 Johns., 438 ; MeMe- York in 1860. Laws of 1860, ch. 848. n«my «. Roosevelt, 3 Johns. Ch., 446; It provides that assignments must be in Nicoll v. Mumford, 4 lb., 522 ; Williams writing, and acknowledged and recorded ; B. Brown, 4 lb., 682 ; Wilder ». Winne, 6 that the assignor shall deliver to the coun- Cow., 284; Wintringhatn ». La Foy, 7 ty judge a sworn schedule, containing an lb., 735; Jackson v. Cornell, 1 Sand. Ch.. account of the creditors, stating their resi- 13* ABB0T1S' FOEMS. What Preferences are Unlawful. allowing the bare right to make an assignment for the benefit of all creditors, but forbidding any preference or favor of one over another.(. White, 3 Seld., 488; Olmstead v. Herrick, 1 B. D. Smith, 810; with which compare Van Nest v. Yoe, 1 Sand/. Gh., 4; Jacobs v. Allen, 18 Barb., 549) ; for providing a compensation beyond that allowed by law (Nichols v. McEwen, 17 N. Y, 22) ; and for enabling him to'vary the order of preferences. Barnum -v, Hempstead, 7 Paige, 568 ; Boardman v. Halliday, 10 lb., 228 ; Strong ». Skinner, 4 Barb., 546. {/) As, for instance, a provision that he may employ agents (Mann -v. Whitbeck, 17 Barb., 888; Van' Dine v. Willett, 24 Sow. Pr., 20ti, and 38 Barb., 319) ; that he may advertise for demands, and pay those presented within a certain time (Ward v. Tingley, 4 Sand/. Oh., 476) ; that he may pay insurance premiums, and mortgage interest upon the property (Whitney v. Krows, 11 Barb., 19S) ; or rent and taxes (Van Dine v. Willett, 24 Bow. Pr., 206, and 38 Barb., 819 ; Morri- son v. Atwell, 9 Bosui., 503) ; or a provi- sion for his compensation which allows of its being adjusted at a sum within his legal commissions (Keteltas v. Wilson, 86 Barb., 298 ; 23 How. Pr., 69 ; Halstead v. Gordon, 34 Barb., 422 ; Campbell v. Woodworth, 33 Barb., 425 ; 24 N. Y., 804) ; or directions as to sale or distribu- tion which leave him at liberty to comply with the requirements of the law. W ilson v. Eobertson, 21 N. Y., 589 ; 19 How. Pr., 350; Ogden v. Peters, lb., 23; Griffin v. Marqnadt, lb., 221 ; Jessup v. Hulse, /*., 168 ; Stern v. Fisher, 82 Barb., 198 ; Hal- stead v. Gordon, 84 lb., 422. (g) See Goodrich ••>. Downs, 6 Hill, 438 ; Strong v. Skinner, 4 Barb., 456 ; Barnej v. Griffin, 2 Gomst. (2 iK Y.), 365 ; Leitcli v. Hollister, 4 lb., 211 ; Lansing v. Wood- ruff, 1 Sand/. CA.,48 ; Clark v. Dowlings ASSIGNMENTS IN- TEUST FOR CREDITORS. 13d What Treferencos are Unlawful. Thus, again, any language in an assignment, which enables the assignor to exercise a future preference among his creditors, avoids the instrument, h) Thus, again, all provisions which disclose an endeavor to empower the as- signor to impose conditions upon creditors, before paying their demands, avoid the assignment.(i) Thus, again, any directions to the assignee to deal with the estate in a given way, to increase the amount to be realized from it, avoid the assignment, when- ever they operate to delay a sale.(j) 1 Hill & D., Svpp., 105 ; Mackie v. Cairns, 5 Cow., 547 ; Sheldon v. Dodge, 4 Den., 217 ; Barnum v. Hempstead, 7 Paige, 5(58; Hooperman v. Suckerman, 3 Sand/., 811 ; Johnson v. Gardner, 4 iV. Y. Leg. Obs., 424; CollumbD. Caldwell, 16 N.Y., 484; Wilson v. Robertson, 21 lb., 387 ; 19 How. Pr., 350; Smith v. Howard, 20 /*., 121. This rule, however, under which an as- signment is held void which reserves a surplus to the assignor, does not apply to the following cases : 1. Cases in which property is assigned direct to a particular creditor, as a means of securing payment of his demand. Such an assignment, being in the nature of a mortgage for the particular demand, a trust to pay the surplus to the assignor is held to result from the nature of the in- strument; and whether it is stated in the instrument or left to implication, is im- material. Leitch v. Hollister, 4 Comet., 24 ; Hendricks v. Robinson, 3 John*. Ch., 284; affirmed, 17 Johns., 438; Dunham e. Whitehead, 21 N. Y., 181 ; McLelland V. Remsen, 36 Barb., 622; 14 Abbotts' Pr., 381 ; 23 Bow. Pr., 175. 2. Cases in which the surplus directed to be returned is ouly such as may remain after paying all creditors in full. Where a surplus results under such circum- stances, the law implies a trust to repay it to the assignor. Heuce a direction to repay a surplus in an assignment will not avoid it, if the instrument in effect em- powers the assignor first to pay all cred- itors in full, in case assets are sufficient. Wintringham 0. Lafroy, 7 Cow., 735 ; Van Rossum v. Walker, 11 Barb., 237 ; Ely v. Cook, 18 lb., 612 ; Taylor v. Stevens, 7 Mow. Pr., 415. 3. Cases in which particular items of property are excepted from the assign- ment. As these remain open to the reach of creditors, in the same manner as they were before the assignment was made, the reservation does not operate to delay them. Carpenter v. Underwood, 19 N. Y., 520. (A) Examples are, — when the instru- ment preferred the creditors who should be named in a schedule to be thereafter made out and affixed (Averill v. Lonoks, 6 Barb., 470) ; when it directed that, in a certain contingency, debts enumerated in a later class should be preferred to those mentioned in an earlier one (Sheldon v. Dodge, 4 Den., 217); and where it di- rected that, if certain creditors should re- fuse to release the assignor, then such creditors should be preferred to them as the assignor should appoint. Compare Bernard v. Graydon, 39 Barb., 548; Powers v. Graydon, 10 Bosw., 680. (i) As, where certain creditors are di- rected to be .preferred upou the condition that they execute releases of their de- mand (HyBlop v. Clark, 14 Johns., 4RH; Austin 1). Bell, 20 lb., 442 ; Grover -■ Wakernan, 11 Wend., 187; Armstrongs. Byrne, 1 Edw., 79 ; Lentillhon v. Moffa"- 1 Edw. Ch., 451 ; Searing v. Brinckerhoff 5 Johns. Ch., 329 ; Hone v. Henriquez, 13 Wend., 240 ; Gasherie v. Apple, 14 Ab- botts' Pr., 64) ; or where the assignment authorizes a surplus to be divided among those who will execute a release. Grover v. Wakernan, 11 Wend., 187; Mills v Levy, 2 Edw., 188 ; but see De Caters o De Chaumont, 2 Paige, 49 ; Hastings v. Belknap, 1 Den., 190. See, also, upon the same general principles, Berry v. Riley, 2 Barb., 807; Bellows v. Partridge, 19 lb., 176; Oliver Lee & Co.'s Bunk v. Talcott, 19 N. Y., 146; Bank of Silver Creek v. Talcott, 22 Barb., 550; Jewett v. Woodward, 1 Edw., 195 ; Van Nest v. Yoe, 1 Sand/. Ch., 4; Spaulding v. Strong 86 Barb., 810. (/) Dunham v. Waterman, 17 N. Y., 9; Van Nest v. Yoe, 1 Sand/. Ch., 4 ; 2 N. Y. Leg. Obs., 70 ; Schlussel *. Willett, 84 Barb., 615 ; 12 Abbotts' Pr., 897 ; 22 How. Pr., 15. 136 ABBOTTS' FOKMS. Effect of Assignment Thus, again, any permission given in the assignment to the assignee to sell apon credit, although with a view to realize a larger sum for ultimate distribu. tion, avoids the assignment.^) It is also necessary to the validity of an assignment that it should be made in good faith, without any actual intent to defraud any one. And there are some restrictions relating to the classes of persons who may make preferential assignments.(Z) A general assignee for the benefit of creditors stands in no better position, and has no higher rights in respect to enforcing choses in action transferred by the assignment than those of his assignor. He is not to be regarded as a pur- chaser for a valuable consideration.(m) Notwithstanding an assignment is originally invalid as against creditors generally, for such defects as are pointed out above, it is valid as between the parties to it, and as against all creditors who have assented to it, or in any way ratified it. {h) As a sale upon credit necessarily protracts the ultimate distribution until the term of service expires, such a sale is held a fraud, upon the right of the cred- itors to have the assets converted into money, and the money divided without delay. Rogers ». De Forest, 7 Paige, 272 ; Barney v. Griffin, 2 Oomst., 365; 8 N. Y. Leg. Obs., 68 ; and 9 lb., 106 ; Nicholson V. Leavitt, 2 Seld., 510, and 6 lb., 591 ; Burdick v. Post, 2 /*., 522; Houghton*. Westervelt, Seld. notes, No. 1, 32; Porter v. Williams, 5 Held., 142, and 12 How. Pr., 107 ; Lyons v. Platner, 11 JV. Y. leg. Obs., 87 ; Kapalee v. Stewart, 27 N. Y., 310. But as in the case of clauses conferring other powers on the assignee, so in respect to the terms in which the power to sell is expressed, if they do not necessarily im- port discretionary power to sell upon credit, inconsistent with the legal duty of the trust, but may be construed as con- sistent with an immediate conversion into .noncy, the assignment is not rendered nvalid. Kellogg v. Slauson, 1 jTera.,302; Whitney v. Krows, 11 Barb., 198; South- worth v. Sheldon, 7 Now. Pr., 414; Bel- lows v. Partridge, 19 Barb., 176 ; 12 N. Y. Leg. Obs., 219 ; Clark v. Fuller, 21 Barb., '.28 ; Nichols v. McEwen, lb., 65 ; Wilson v. Ferguson, 10 How. Pr., 175; Clapp v. Utley, 16 lb., 384; Meacham v. Stearns, 3 Paige, 898; Wilson v. Robertson, 21 N. Y., 589; 19 .How. Pr., 850; Ogden v. Peters, lb., 23; Griffin v. Marquadt, lb., 121 ; Schufeldt v. Abernethy, 2 Over, 538 ; 12 N. Y. Leg. Obs., 178 ; Murphy v. Bell, 8 Hon. Pr., 468 ; Townsend ». Stearns, 80 N. Y., 2T9. And a clause forbidding I he assignee o sell upon credit, though superfluous, does not affect the assign- ment. Carpenter*. Underwood, 19 N. Y., 520 ; Van Eossum v. Walker, 11 Barb., 237 ; Stern ». Fisher, 32 lb., 198. (I) In New York, moneyed corpora tions and limited partnerships are dis- abled from making preferential assign- ments. 1 Rev. Stat., 891, § 9 ; Lb., 766, §§ 20, 21 ; Eobinson v. Bank of Attica, 21 N. Y., 406. So an infant is incompetent to assign. Fox v. Heath, 21 How. Pr., 384. (m) Matter of Howe, 1 Paige, 125; Mead v. Phillips, 1 Sandf. Oh., 83 ; Ma- rine and Fire Ins. Bank of Georgia v. Jauneey, 1 Barb.,iS&; Leger v. Bonaffe, 2 Barb., 475 ; Warren v. Fenn, 28 lb., 338 ; Van Heusen v. Eadcliff, 17 lb., 580 ; Bliss «. Cottle, 32 Barb., 322 ; Reed v. Sands, 37 lb., 185; Maas~*. Goidman, 2 Hill, 275 ; Schieffelin v. Hawkins, 14 .44- botts 1 Pr., 112. Thus he takes evidences of debt subject to, any offset which ex- isted against his ast-ignor (Chance v. Isaacs, 5 Paige, 592 ; Maas v. Goodman, 2 Hill, 27'5) ; and merchandise subject to any right of stoppage in transit (Harris ». Hunt, 6 Duer, 606 ; Harris v. Pratt, 17 N. Y., 249), or to any vendor's lien (Hag- gerty v. Palmer, 6 Johns. Oh., 437;, which might have been enforced against his assignor. And he cannot impeach pre- vious transfers of property made by his assignor which were binding upon the latter, although they may be voidable for fraud, at the instance of creditors. Van Heusen v. Eadcliff, 17 If. Y., 580; Brow- nell v. Curtis, 10 Paige, 210 ; Storm v. Davenport, 1 Sandf. Oh., 135; Osborne v. Moss, 7 Johns., 161 ; Averill v. Loucks, 6 Barb., 470 ; Mills®. Argall, 6 Paige, 577 ; with which compare Bayard v. Hoffman. 4 Johns. Oh., 450. ASSIGNMENTS IN TRUST FOR CREDITORS. 137 Analysis. Individual Assignment without Preferences, 807. Assignment by an individual, without preferences 187 803. The same; another form 139 809. Acceptance by assignee 189 810. Assignment by copartners, with preferences 189 811. The same ; another form , 141 812. Inventory (required by the New York statute of 1860) 142 813. Petition for an accounting by assignee (under same statute) 143 S14. Bond of assignee (under same statute) 144 815. Approval of county judge, to be indorsed on the preceding statnte 144 316. Summons to assignee (under same statute) 145 307. Assignment by an Individual, Without Preferences. Indentube made this day of , 18 , between A. B., of , party of the first part, and Y. Z., of , party of the second part. Whereas the party of the first part owes divers debts, which he is unable to pay in full, and is desirous to provide for the payment of the same, as far ss in his power, by an assignment of all his property for that purpose. Now this niDENTcuE witnesseth: That the party of the first part, in consideration of the premises, and of one dollar to him paid before the sealing and delivery of these presents, the receipt of which is hereby acknowledged, has granted, bargained, sold, assigned, transferred, and set over, and by these presents does grant, bargain, sell, assign, transfer, and set over, unto the party of the second part, his heirs, executors, adminis- trators, and assigns all and singular the lands, tenements, hereditaments and appurtenances, goods, chattels, stocks, promissory notes, debts, choses in action, evidences of debt, claims, demands, property, and effects of every description belonging to the party of the first part, wherever the same may be situated :{n) the same being more fully and particularly enumerated and described in a schedule thereof hereto annexed, marked Schedule A.(o) To have and to hold the same, and every part thereof, in trust for the uses and purposes following : 1. To take possession of the said property, and to sell and dispose of the same, with all reasonable diligence, either at public or private sale, and for the best prices that can be obtained therefor, and to convert the same into money ; and also to collect all such debts and demands hereby assigned, as may be collectable. And with and out of the proceeds of such sales and collections : 2. To pay and discharge all the just and reasonable expenses, costs, and charges of executing this assignment, and of carrying into effect the trust (») Such phraseology as this is held effect of the assignment :o property ex- broad enough to embrace all assignable plicitly mentioned in the schedule. All property of the assignor. It will pass his the property of the assignors will pass, the title to goods previously ordered by him reference to the schedule being construct to be manufactured in a foreign country, as intended not for the purpose of restrict- and on their way hither at date of assign- ing the conveyance, but to identify th.? merit. Van Dine v. Willett, 38 JBaii., property conveyed. Piatt v. Lott, 17 Jf 219; 24 How. Pr., 206. Y-, 478; Turner v. Jaycox, 40 Bam (o> This last clause will not restrict the 1) the share or portion of such surplus belonging to each of the respective parties to be applied to the payment of the debts of such party (and not to the debt of the other), and without preference to the individual creditors. And the parties of the first part hereby constitute and appoint the party of the second part their attorney irrevocable, to ask, demand, collect, sue for, recover, and receive the above assigned property and effects, and every part thereof. (p) That this phraseology will not op- see Morrison v. Atwell, 9 Soste., 503; and erato as an assignment of the individual compare, Scott v. Guthrie, 10 Boaw . property of members of the partnership, 408. ASSIGNMENTS IN TRUriT FOE CREDITORS. 141 Preferential Assignment by Copartners. And the party of the second part hereby accepts the trusts abc ve created, and agrees to execute the same to the best of his ability. In witness whereof, etc. 811. The Same; Another Form. This indenture, made the day of ,18 , between A. B. and C. D., copartners under the name, style, and firm of A. & Co., of , parties of the first part, and Y. Z., of the same place, party of the second part. Whereas the said copartnership is justly indebted in sundry considerable sums of money, and has become unable to pay and discharge the same with punctuality or in full, and the said parties of the first part are now desirous of making a fair and equitable distribution of all their property and effects among their creditors. Now, therefore, this indenture witnesseth: That the said parties of the first part, in consideration of the premises, and of the sum of one dollar to to them in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, have granted, bargained, sold, released, assigned, transferred, and set over, and by these presents do graut, bargain, and sell, release, assign, transfer, and set over unto the said party of the second part, and to his heirs and assigns, forever, all and singular the lands, tenements, hereditaments, and all the goods, chattels, merchandise, bills, bonds, notes, book accounts, claims, demands, choses in action, judgments, evidences of debt, and property of every name and nature whatsoever of the said parties of the first parts, (y) To have and to noLD the same, and every part and parcel thereof, with the appurtenances, to the said party of the second part, his heirs, executors, administrators, and assigns. In trust, nevertheless, to and for the following uses, intents, and purposes — that is to say, that the said party of the second part shall forthwith take possession of all and singular the lands, tenements, hereditaments, property, and effects hereby assigned, and sell and dispone of the same for the best prices which he shall be able to obtain, and to convert the same into money, and shall also collect all and singular said debts, due-bills, bonds, notes, accounts, claims, demands, and choses in action, or so much thereof as may prove collectable, and thereupon execute, acknowledge, and deliver all necessary conveyances and instruments for the purposes aforesaid ; and by and with the proceeds of such sales and collections, the said party of the second part shall first pay and disburse all the lawful expenses, costs, charges, and commissions of executing and carrying into effect this assignment ; and by and with the residue or net proceeds and avails of such sales and collec- tions, the said party of the second part shall : 1. Pay and discharge in full the debt due to the firm of M. & Co., of , for the sum of $ 2. By and with the residue and remainder of said net proceeds and (g) See note (») to Form 807. 142 ABBOTTS' FORMS. Inventory. avails, pay and discharge the several and respective debts, bills, notes, or sums of money due, or to grow due. from the parties of the first part to the persons designated in the schedule hereto annexed, together with such interest as may acrue thereon ; and if such net proceeds and avails shall not be sufficient to pay the same in full, then such net proceeds and avails shall be distributed pro rata among said persons, according to the amount of their respective claims. 'S. By and with the residue and remainder of said net proceeds and avails, if any there shall be, the party of the second part shall pay and dis- charge all the other copartnership debts, demands, and liabilities whatsoever, now existing, whether due or hereafter to become due, provided such remainder shall be sufficient for that purpose ; and if not sufficient, then the same shall be applied pro rata to the payment of said debts, demands, and liabilities, according to their respective amounts. 4. By and with the residue and remainder of said net proceeds and avails, if any there shall be, the party of the second part shall pay and dis- charge all the private and individual debts of the parties of the first part, or either of them, whether due or to grow due, provided such remainder shall be sufficient for the purpose; and if insufficient, then the same shall be applied pro rata, share and share alike, to the. payment of said debts, ac- cording to their respective amounts.(r) And for the better execution of these presents, and of the several trusts hereby reposed, the said parties of the first part do hereby make, nominate, and appoint the said party of the second part the true and lawful attorney irrevocable of them and of each of them, with full power and authority to do, transact, and perform all acts, deeds, matters, and things which can or may be necessary in the premises, as fuliy and completely as the said parties of the first part, or either of them, might or could do, were these presents not executed ; and attorneys, one or more, under him, to make, nominate, and appoint, with full power of substitution and revocation, hereby ratifying and confirming all and every thing that our said attorneys, or his attorneys, shall do or cause to be done in the premises. And the party of the second part hereby accepts the trust created by these presents, and covenants that he will faithfully perform the same. In witness whereof, etc. [Annex a schedule describing the debts intended to be preferred in the second class.} 312. Inventory [Required by the New York statute of 1860(d)]. The following is a full and true inventory of all the creditors of A. B., («•) That such a provision aB this does Barb., 164. But the clause on this sub- not render an assignment invalid, as ject in the preceding form is to be pre- operating, on its face, to expose the share ferred. of one partner to be applied to pay debts (s) By Laws of N. T. of 1860, 594, eh. cf the other, before his own have been 348, it is provided that assignments in paid in full, see Turner v. Jayoox, 40 trust for oi ditors must be in writing, and ASSIGNMENTS IN TRUST FOR CREDITORS. 14S Petition for Accounting. who has macta an assignment to Y. Z., which bears date the day of ,18 . To M. N., of , is due the sum of $ , for money borrowed from him at , on the day of , 18 , with interest from that day. To 0. P., of , is due the sum of $ , for rent of house No. , street, in said place, for the year ending oh the day of , 18 . [In Wee manner specify the names and residences of all creditors, the sums due them, and the consideration of the indebtedness.] The following is a full and true inventory of the estate and assets of A. B., on the said day of , 18 [the date of the assignment]. One house and lot of land in , the value of which is $ , and which is unencumbered. [In like manner specify other items of property constituting the assigned 31S. Petition for an Accounting by Assignee {under same statute). To the Hon. H. L. S., County Judge : The petition of M. N.. of , respectfully shows: That A. ?>., of did, by an instrument in writing, elated the day of , 18 , dulj assign and setoVerall his property to Y. Z., of the same place, as his assignee for the benefit of his creditors; and that the said T. Z. has given and filed acknowledged, and the certificate of ac- After a year from the date of assign- knowledgmeut indorsed before delivery. ment the county judge may, upon the pe- Within twenty days the assignor must tition of any creditor, compel an account- make and deliver to the county judge a ing. Special provisions legulating pro- verified inventory, containing — 1. An ac- ceedings for this purpose are given in the count of all the creditors. 2. The resi- act. dence of each creditor, if known. 3. The It has been a subject of some dispute Bum owing to each creditor, and nature of how far these provisions are directory, each debt. 4. The consideration of each merely, and how far a compliance with debt, and the place where it arose. 5. A them is essential to the validity of the as- statement of any security for the payment signment. The result of the cases appears of any debt. 6. A full and true inventory to be, that until the assignment has been of all the debtor's estate at the date of the reduced to writing, acknowledged, and the assignment, and the encumbrances there- certificate of acknowledgment indorsed on, and of all vouchers and securities re- upon it, it can have no validity. Cook v. lating thereto, and the value of such Kelley, 12 Abbotts' Pr., 35; 14 75., 466; estate. Assignment and inventory must Fairchild «. Gwynne, 16 lb., 28 ; reversing be recorded in the office of the clerk of S. C, 14 lb., 121. the county where the debtor resided at But the provisions requiring an inven- the date thereof. tory, a bond, etc., are directory ; and a The assignee must, within thirty days, failure to obey them does not affect the and before selling, etc., any of the assigned assignment, but merely makes a ease for property, give a bond, with sureties, for a enforcing compliance. Evans v. Chapin, faithful discharge of duty, and a due ac- 12 Abbotts' Pr., 161 ; S. C, 20 How. Pr., counting; and this bond must be filed in 289 ; Juliand v. Eathbone, 89 Barb., 97; the county clerk's office where the assign- Bead v. Worthington, 9 Bosw., 617. ment is recorded. 144 ALiJOTTS' FORMS. Bond of Assignee. \ Approval. the proper security, and entered upon the duties of his trust as such as- signee, and that more than one year has elapsed since the date of said assignment. That your petitioner is a creditor of the said A. B., and inter- ested in the distribution of the proceeds arising from said assignment ; and he asks that your honor will issue a citation or summons, compelling the said Y. Z., assignee as aforesaid, to appear before you, at a time and place to be named in said summons or citation, and show cause why an account of the trust fund shall not be made, and a decree rendered directing the said Y. Z. to pay your petitioner his proportional part of such fund ; and that such other proceedings may be taken herein as to your honor may seem just and equitable. [Signature.] County op , ss. M. N, being duly sworn, says he has [heard] read the foregoing petition by him subscribed, and that the same is true to the best of his knowledge and belief. [Jurat.] [Signature.] 314. Bond of Assignee {under same statute). Know all men by these presents, that we, Y. Z., of , and M. N. and 0. P., of the same place, are held and firmly bound unto the People of the State of New York in the sum of dollars, lawful money of the United States of America, to be paid to the said the People of the State of New York or their assigns; for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seal. Dated the day of , 18 . Whereas one A. B. has made an assignment of all his goods, chattels, and credits to the above-named Y. Z., for the payment of the debts of the said A. B , as expressed in said instrument of assignment, bearing date the day of , 18 , and recorded in the clerk's office of the county of , on the day of , 18 , which said assignment the said Y. Z. has accepted, on being ordered by the county judge of County to give bond with security in the sum of : Now the condition of this obliga- tion is such, that if the said Y. Z. shall faithfully discharge the duties as such assignee, and duly account for all moneys received by him as such assignee, and obey all orders or decrees which may be made by the county judge of County in regard to said assignment, then this obligation to be void ; otherwise, to remain in full force and virtue. Y. Z. [Seal.] M. N. [Seal] O. P. [Seal] 315. Approval of County Judge, to be Indorsed on the Preceding Bond. I hereby approve of the form and sufficiency of the within instrument. , 18 . H. L. S. County Judge. AUCTIONS. 145 General Principles. 316. Summons to an Assignee (under same statute). County of , ss. To T. Z., Esq. : In the name of the People of the State of New York, you are commanded to appear before me, the county judge of County, at my office in , on the day of , at o"clook in the forenoon, to show cause why an account should not be rendered by you of the trust fund in your hands, created by the assignment of A. B. to you, dated , 18 , and why a decree should not be entered requiring that the funds be paid over to the several persons entitled to receive the same. Hereof fail not at your peril. H. L. S., [Date.] County Judge. CHAPTER XI. AUCTIONS. Sales by auction are usually regulated by statute, requiring auctioneers to obtain licenses or give bands, or both, and to render accounts, etc., to the State. For the particulars of these regulations, the reader must consult the statutes of his State. The forms of bond and oath to account ^ere given are agreeable to the laws of New York. PAOE 817, Bond of auctioneer. 145 818. Acknowledgment and approval 146 319. Certificate to be indorsed on copy for county clerk 146 820. Notice by magistrate to comptroller : 146 821. Oath of copartner or clerk 147 822. Oath of auetioneei to semi-annual account 147 828. Oath of partner or clerk to account containing any sales made by him 147 824. Terms of Bale of real property 148 825. Memorandum of sale 148 317. Bond of Auctioneer. (a) Know all men by these presents, that we, A. B. [the auctioneer], of , and 0. D. and E. F. [naming his sureties], of , are held and firmly bound unto the People of the State of New York in the penal sum of (V) dollars, to be paid to the People of the State of New York, for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by (a) Where the bond is given in the (SI For the penalty and condition, city of New York, a copy is to be made see Laws of N. ¥., 1838, ch. 52 ; Laws of Doth the bond and the acknowledge of 1846, ch. 62; Laws of 1866, vol. 2, ment, and certified by the magistrate, by p. 1187, ch. 547. indorsing Form 319 upon it. But see L. 1866, ch 6i1. 10 146 ABBOTTS' I'-RMS. Auctioneer's Bond. Approval, these presents. Sealed with our seals, and dated the day of , in t'he year of our Lord one thousand eight hundred and Whereas, the above bounden A. B. [naming the auctioneer] is a citizen of the State of New York, resident in the county of ; ar.d whereas the said A. B. designs and intends to become an auctioneer, and to transact the business and perform the duties of an auctioneer in the said county of : Now the condition of this obligation is such, (J) that if the said A. B. shall faithfully perform the duties of his office; and shall well and faith- fully pay the fees or duties that are or shall be imposed by law, and that shall accrue on sales made by him the said A. B., or under hi3 direction, as such auctioneer as aforesaid, or by virtue of his office, and if the said A. B. shall render a true and accurate account semi-annually on the first Mondays of July and January in each year of all goods sold, and also of all goods struck off but not actually sold, as is directed and required by the existing provisions of law, then this obligation shall be void ; but in case the said A B. shall fail to perform said duties, or to pay said duties or fees, or any part thereof, or to render such account as is above required, then this obligation shall be and remain in full force and effect, and the obligors shall be deemed to have forfeited the said bond. [Signatures and seals.] 318. Acknowledgment and Approval. State op New York, ) City [or, County] of . > On the day of , 18 , before me M. N., the mayor [or, recorder], of the said city [or, if 'not for a city, say, county judge of said county], per- sonally appeared the above-named A. B., C. D., and E. F., known to me to be the same persons described in, and who executed the above bond, and acknowledged that they executed the same, for the purposes therein men- tioned. And I hereby certify that I approve of the within bond, and that it was taken by me on the day last aforesaid. [Signature and title.] 319. Certificate to be Indorsed on Copy for County Clerh.(e) OoraTY of , ss. I heeeby certify, that the within is a true copy of a bond takea and approved by me, and of the certificate of acknowledgment and approval thereon indorsed by me, and of the whole of said bond and certificate, and that said certificate was executed the day it bears date. [Date.] [Signature and titled] 320. Notice by Magistrate to Comptroller. I hereby i" Ertify, that on the day of ,18,1 approved a bond for A.' B., as auctioneer of the city [or, of the county] of , and that the sureties entering into the said bond were C. D. and E. F., both mer- chants [or otherwise], residing or doing business in the city of [Date.] [Signature and title.] (c) See note (a). AUCTIONS. 147 Affidavits of Auctioneers nnd Clerks. 821. Oath of Copartner, or Clerk. I, G. H., of , do solemnly swear [or, affirm], that I am the copartner [or, hired clerk] of A. B., an auctioneer duly authorized to act as such, in and for the city [or, county] of ;* and that I will fully and faithfully perform the duties incumbent on me by the provisions of Title I., of Chapter 17, of Part I. of the Revised Statutes of the State of New York, and the acts amending the same. Taken and subscribed before me, at ) [Signature.] , this day of , 18 . ) [Signature and title of magistrate.] 322. Oath of Auctioneer, to he Indorsed on His Semi-annual Account. I, A. B., do solemnly and sincerely swear [or, affirm] that the account now exhibited by me, and to which I have subscribed my name, contains a just and true account of all the goods, wares, merchandise, and effects sold or struck oft", or struck off and not actually sold, or bought in by me. at public sale, or sold by me at private sale on commission, whether subject to duty or not, or sold, struck off, or bought in, as aforesaid, by others in my name, or under my direction, or for my benefit, within the time mentioned in the within account, and of the days upon which the same were re- spectively sold; and that I have attended personally such of the said public sales as are not stated in the said account to have been made without my attendance ; and that the causes therein mentioned of my absence from such sales as I did not attend, are truly stated ; that I have examined the entries of all the sales mentioned in said account in the book kept by me for that purpose, and fully believe this account to be in all respects correct; and further, that I have, during the time therein mentioned, conformed in all things to the true intent and meaning of the laws regulating sales by auctioneers, according to the best of my knowledge, information, and belief. Taken [etc., as in, Form, 321], [Signature of auctioneer.] 323. Oath of Partner or Clerk, to "be Indorsed on Account Containing Any Sales Made by Him. [As in Form 321 to the *, continuing thus :] and have been such clerk for six months last past; that I believe the account of sales within, rendered by the said A. B., to be just and true in every particular; that the sales therein mentioned, opposite to which my name is set [or, my initials are set], are all the sales liable to auction duties, public or private, made by me within the time mentioned in said account ; and that the account of such sales so therein stated, is just and true ; that such sales were made by me, in the absence of said A. B., who was unable to attend, from the causes specified in his account ; and that in all acts performed by me, in behalf of such auctioneer, during the time aforesaid, I have endeavored to conform to the true intent and meaning of the laws regulating sales by auctioneers. Taken [etc., as in Form 321], [Signature of deponent.] U8 ABBOTTS' JFOEMS. Auction S%les. 324. Terms of Sale of Real Property. The premises described h the annexed advertisement of sale [or other- wise, identify them] will be sold [if by an officer under order of court, add, under the direction of A. B.], upon the following terms : 1st. Ten per cent, of the purchase-money of said premises will be re- quired to be paid to the auctioneer [or, to said A. B.], at the time and place of sale, and for which his [or, the owner's] receipt will be given. 2d. The residue of said purchase-money will be required to be paid to the said , at his office at , on the day of , 18 , when the said owner's [or officer's] deed will be ready for delivery. 3d. The vendor is not required to send any notice to the purchaser and if he neglects to call at the time and place above specified, to receive his deed, he will be charged with interest thereafter on the whole amount of his purchase, unless the vendor shall deem it proper to extend the time for the completion of said purchase. [4th. All taxes, assessments, and other encumbrances, which at the time of sale are liens or encumbrances upon said premises, will be allowed by the master [or, referee] out of the purchase-money; provided the pur- chaser shall, previously to the delivery of the deed, produce to the master [or, referee] proof of such liens, and duplicate receipts for the payment thereof.](ted),(A) unto [name of consignee], (a) Mason v. Liekbarrow, 1 H. Blackst., Chase, 1 E, D. Smith, 115 ; The Same v. 857. Calebs, 20 N. Y., 178. (J) Covill v. Hill, 4 Den., 323 ; Hoi- (A) The clause, " the dangers of the brook v. Vose, 6 Bosw., 76. seas excepted," does not affect the ques- (c) Dows v. Greene, 24 iK Y., 638 ; 32 tion whether freight has been earned or Barb., 490. not. Its effect is only to exempt the car- (d) White 0. Van Kirk, 25 Barb., 16. rier from liability to pay for the cargo («) Wolfe v. Myers, 3 Stmdf., 7 ; Nelson when lost through the dangers of the v. Stephenson, 5 Diier, 538. seas. And unless there is an express (/) Price ». Powell, 3 N. Y. (8 Comst.), agreement to the contrary, freight paid 322; Ellis v. Willard, 9 N. Y. (5 Seld.), in advance may be recovered back, if 'the 529; White v. Van Kirk, 25 Barb., 16; voyage is not performed, although pre- Meyer v. Peck, 83 lb., 532. vented by the dangers of the seas, and (g) Mercantile Mutual Insurance Co. v. without fault. Phelps v. Williamson, 5 11 162 ABBOTTS' FORMS. Bills Sale. or to his [or their] assigns, he or they paying freight(i') for the said , with primage and average accustomed. In witnkss whereof, the master or purser of the said vessel hath affirmed to [three] bills of lading, all of this tenor and date ; one of which being accomplished, the others to stand void. ■ Dated in the day of , 18 . [Signature of Master.] CHAPTER XVI. BILLS OF SALE. A bell of sale is a formal written conveyance of personal property. If the property is delivered when sold, or if a part of the purchase-money is paid, a written instrument is not necessary to make the conveyance binding, but it is convenient evidence of title. Making a bill of sale, however, is not enough, without delivery of the property, to protect the purchaser against the creditors of the seller. If the sale is not accompanied by an actual and continued change of possession, it is void as against creditors, and subsequent purchasers and mortgagees in good faith, unless the buyer can show that his purchase was made in good faith, without any intent to defraud them, and that there was some good reason for leaving the property in the hands of the seller. , PAGE 856. Bill of sale describing the chattels 168 357. Bill of sale of a horse, with warranty 163 858. Bill of sale, referring to a schedule annexed, for an enumeration of the goods 164 859. Schedule annexed to the foregoing bill of sale 164 360. Bill of sale where a schedule is to be subsequently made 164 861. Declaration of symbolical delivery which may be inserted 165 362. Another form ; by indorsement on the bill of sale 165 363. Bill of sale in consideration of the assignee's agreeing to maintain the as- signor for life 165 364. Bill of sale of a registered vessel of the United States 166 865. Acknowledgment of the foregoing bill of sale 167 366. Bill of sale of an enrolled vessel of the United States 167 367. Bill of sale pf a vessel not registered or enrolled 168 368. Bill of sale of stocks already pledged to another person 169 Sand/., 578; S. 0., 10 N. T. Leg. Obt., teot the master, and not for the benefit of 272. the consignor. In case of the carrier's Injury to the goods by rats on board neglect to collect the freight from the con- ship is not within this clause. Aymar v. signee, it does not exonerate the consignor Astor, 6 Cow., 267. from liability therefor. Shepard v. De (i) The effect of this clause in respect Bernales, 13 East., 565; Jobbitts. Goun- to payment by the consignee i« to pro- dry, 29 Barb., 509. BILLS OF SALE. 163 Common Forms. 356. Bill of Sale Describing the Chattels. Know all men by these presents, that I, A. B., of , in the county of , and State of , farmer, party of the first part, in considera- tion of the sum of dollars, (a) to me paid by Y. Z., of aforesaid, merchant, party of the second part, the receipt whereof I do hereby ac knowledge [or state other consideration — e. g., thus: in consideration of the sum of dollars, to me to be paid by Y. Z., of, etc., in equal quar- terly instalments, secured by his notes at three, six, nine, and twelve months respectively], have bargained, sold, granted, and conveyed, and by these presents do bargain, sell, grant, and convey unto the said party of the sec- ond part, his executors, administrators, and assigns [here set out the chattels sold — e. g., thus /] all the hops growing on my farm in said town, one yoke of oxen, red and white, heretofore on said farm, and one bay horse, with farm-wagon and harness, now in the keeping of M. N., at . To have and to hold the same unto the said party of the second part, his executors, administrators, and assigns, forever. And I do for myself, my heirs, exeou- tors, and administrators, covenant and agree, to and with the said party of the second part, to warrant and defend the said described goods hereby sold, unto the said party of the second part, his executors, administrators and assigns, against all and every person and persons whatsoever.(6) In witness whekeof, I have hereunto set my hand and seal, the day of ,18 . A. B. [Seal] Signed, sealed, and delivered) in the presence of ) [Signature of witness.] < 357. Bill of Sale of a Horse, With Warranty. Know all men by these presents, that I, A. B., of , in the county of , and State of , farmer, party of the first part, in considera- tion of the sum of dollars, to me paid by Y. Z., of aforesaid, merchant, party of the second part, the receipt whereof I do hereby ac- knowledge [or state other consideration], have bargained, sold, granted, and conveyed, and by these presents do bargain, sell grant, and convey, unto the said party of the, second part, his executors, administrators, and as- signs, one sorrel horse, with white forehead, known as Charley ; to have and to hold the same unto the said party of the second part, his executors, administrators, and assigns, forever. And I do hereby warrant the said horse to be sound in every respect, to be free from vice, to be well broken, and kind and gentle in single and in double harness, and under the saddle: And I do for myself, my heirs, executors, and administrators, covenant and agree, to and with the said party of the second part, to warrant and (a) It is not, in general, essential to See chapter of Acknowledgment and Btate a consideration. In Makyland and Pboof of Deeds, where the form is given : Louisiana, however, the true considers- Form No. 70, Ante, p. 48. Won should he stated ; and in Maryland (4) As to other special covenants, see the bill must lie verified by an affidavit, th ^ chapter on Covenants. 1(54 ABBOTTS' FORMS. Bill of Sale with Schedules. defend the said described goods hereby sold unto the said party of the second part, his executors, administrators, and assigns, against all and every person and persons whatsoever. In witness wheeeof, 1 hereunto set my hand and seal, the day of , 18 . A. B. [Seal.] Signed, sealed, and delivered ) in the presence of ) [Signature of witness.] 358. Bill of Sale, Referring to a Schedule Annexed, for An Enumeration of the Goods. Know all men by these presents, that I, A. B., of , in the county of , and State of , farmer, party of the first part, in considera- tion of the sum of dollars, to me paid by Y. Z., of aforesaid, merchant, party of the second part, the receipt whereof I do hereby ac- knowledge [or state other consideration], have bargained, sold, granted, and conveyed, and by these presents do bargain, sell, grant, and convey, unto the said party of the second part, his executors, administrators, and assigns, the furniture and household goods contained in my house, No. , in street in the city of , of which a schedule is hereunto annexed ; to have and to hold the same unto the said party of the second part, his ex- ecutors, administrators, and assigns, forever. And I do for myself, my heirs, executors, and administrators, covenant and agree, to and with the said party of the second part, to warrant and defend the said described goods hereby sold, unto the said party of the second part, his executors, administrators, and assigns, against all and every person and persons whatsoever. In witness whereof, I have hereunto set my hand and seal, the day of , 18 . A. B. [Seal] Signed, sealed, and delivered ) in the presence of ) [Signature of witness.] 359. Schedule Annexed to the Foregoing Sill of Sale. Schedule of all the furniture and household goods mentioned in and con- veyed by the annexed bill of sale : One rosewood sofa. Six do. chairs. One do. arm-chair. [Thus enumerating all the goods.] Annexed and signed, this day of , 18 . [Signature of witness.] [Signature of party.] 360. Bill of Sale, Where a Schedule is to be Subsequently Made. [As in the preceding forms, but describing the goods in such words as these :] All and singular the goods and stock of goods and merchandise, consisting BILLS OF SALE. 16S In Coiisideriition of Maintentinc for Life. of whips, lashes, and materials therefor, now in the store of the party of the first part, at No. , street, in the city of , and in the fao- tory of the said party of the first part, at , in the State of [but excepting and reserving therefrom all goods sold, or agreed to be sold, and packed to be delivered to purchasers], and all the furniture and movable fixtures in said store, belonging to the party of the first part, a schedule of said goods and chattels to be made by the party of the first part, and an- nexed hereto with all convenient speed. [The schedule will be in the same form as No. 359.] 361. Declaration of Symbolical Delivery, Which May be Inserted. [Add at. end of either preceding form of Bill, before the clause, In witness, etc.:] And I have put the said Y. Z. in full possession of said goods and chattels, by delivering him one chair and one table, being part of the said goods and chattels, in the name of all the said goods and chattels, at the sealing and delivery hereof. 362. Another Form; By Indorsement On the Bill of Sale. Be it jiEMEMBEBED, that, on the day and year first within written, livery and seizin of the goods within bargained and sold, was delivered by the said A. B. to the said Y. Z. by the said A. B.'s giving to the said Y. Z. one silver cup, in the name of livery ef seizin of the whole of said goods and chattels, in presence of us. [Signature of witnesses.'] 363. Bill of Sale in Consideration of the Assignee's Agreeing to Maintain the Assignor fur Life. This indenture, made on the day of ,18 , between A. B., of , in the county of , farmer, party of the first part, and Y. Z , his son, of the same place, party of the second part, witnesseth : That the party of the first part, in consideration of the covenants hereinafter con- tained, to be performed by the party of the second part, and of the sum of one dollar, to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has bargained and sold, granted and conveyed, and by these presents does bargain, sell, grant, and convey [here net out the chattels sold — e. g., thus :] All the farm-tools, utensils, vehicles, and implements of the party of the first part, on his farm at aforesaid, and one horse, one cow, and ten sheep, and the hay and feed in the barn on said farm. To have and to bold the same unto the said party of the second part, his executors, administrators, and assigns, forever. And the party of the first part does for himself and his heirs, executors, and administrators, covenant and agree, t6 and with the said party of the second part, to warrant and defend the said described goods hereby sold, unto the said party of the second part, his executors, administrators, and assigns, against all and every person and persons whatsoever. Ajsid in oonsidkeation of the premises, the party of the second part doth hereby, for himself, his executors, and administrators, agree with the party 166 ABBOTTS' FORMS. Bill of Sale of a Vessel. of the first part that he will support and maintain, and comfortably and sufficiently clothe, the party of the first part, and in all respects care and provide for him for and during the remainder of his natural life ; and that he, the said party of the second part, will pay unto the said party of the first part, the sum of dollars, on the first days of and , iii each and every year during the said life : Provided, however, that the said party of the first part shall not refuse to reside in the county of aforesaid, except such refusal be occasioned by inability to obtain com- fortable and sufficient board, lodging, and maintenance in the said county. In witness whereof, the said parties have hereunto set their hands and seals, the day and year above written. A. B. [Seal ] In presence of T. Z. [Seal.] [Signature of witness.] 364. Bill of Sale of a Registered Vessel of the United States. To all to whom these presents shall come, greeting : Know te, that I, A. B., of , owner [or, we, A. B., of (f) and 0. D., of (1), owners] of the bark or vessel called the Mary, of New York, of the burden of tons, or thereabouts, for and in consideration of the sum of dollars, lawful money of the United States of America, to us in hand paid before the ensealing and delivery of these presents, by Y. Z., the receipt whereof we do hereby acknowledge, and are therewith fully satisfied, contented, and paid, have bargained and sold, and by these presents do bargain and sell, unto the said Y. Z., his executors, admin- istrators, and assigns, all of the said bark or vessel, together with all the masts, bowsprit, sails, boats, anchors, cables, and all other necessaries thereto appertaining and belonging ; the certificate of the registry of which said bark or vessel is as follows — to wit [?iere insert the registry at length — e. g., thus :] No. . PERMANENT. In pursuance of an act of Congress of the United States of America, en- titled, "An Act concerning the Registering and Recording of Ships or Ves- sels," A. B., of the city, county, and State of , has taken or subscribed the oath [or, affirmation] required by the said act ; and having sworn that he, the said A. B., is the owner [or, that they the said A. B. (f ) and 0. D. (jj) of said place, are the owners] of the ship or vessel called the Mary, of New York, whereof is at present master, and is a citizen of the United States, and that the said ship or vessel was built at , in the State of , in the year 18 , as per Register No. , issued at this port this day, now cancelled, property changed. And said register having certified that the said ship or vessel has decks and masts, and her length is feet and inches, her breadth feet inches, her depth feet and inches, and that she measures tons, and that she is a bark, h is a square stern, no galleries, and billet head ; and the said A. B. having igreed to the description and admeasurement above specified, and sufficient security having been given, BILLS OF SALE. 167 Shipping. according to the said act, the said bark has been duly registered at the port of New York. Given under our hands and seals, at the port of , this day of . in the year one thousand eight hundred and To have and to hold the said bark Mary, and appurtenances thereunto belonging, unto him, the said Y. Z., his executors, administrators, and as- signs, to the sole and only proper use, benefit, and behoof of him, the said Y. Z , his executors,. administrators, and assigns, forever. And I, the said A. B. [or, we, the said A. B. and 0. D.], have, and by these presents do promise, covenant, and agree, for myself, my [or, ourselves, our] heirs, ex- ecutors, and administrators, to and with the said Y. Z. and his heirs, ex- ecutors, administrators, and assigns, to warrant and defend the said bark Mary, and all the other before-mentioned appurtenances, against all and every person and persons whomsoever. In testimony whereof, I, the said A. B., [or, we, the said A. B. and 0. D.] have hereunto set my hand and seal [or, our hands and seals], this day of , in the year of our Lord 18 . [Signatures and seals.] Sealed and delivered in the presence of [Signature of witness.] 365. Acknowledgment of the Foregoing Bill of Sale. State of , ) County of . J On the day of the date hereof personally appeared before me A. B. [and 0. D.], above named, to me known, and acknowledged the foregoing to be their free act and deed. In testimony whereof, I have hereunto set my hand and affixed my seal of office, this day of , 18 . [Signature.] [Seal.] Notary Public. 366. Bill of Sale of An Enrolled Vessel of the United States. To all to whom these presents shall come, greeting : Know ye, that I, A. B., of the city, county, and State of New York, sole owner [or, we, A. B. of , \, and 0. D., of , \, owners] of the schooner or vessel called the Ann, of the burden of tons or thereabouts, for and in consideration of the sum of dollars, lawful money of the United States of America, to me [or, us] paid before the sealing and delivery of these pres- ents, by Y. Z., secretary and treasurer of the Company, a corporation of , in the State of , the receipt whereof I [or, we] do hereby acknow- ledge, and am [or, are] therewith fully satisfied, contented, and paid, have bargained and sold, and by these presents do bargain and sell unto the said Y. Z., as secretary and treasurer as aforesaid, his successors and assigns, the whole of the said schooner or vessel, together with the whole of the masts, bowsprit, sails, boats, anchors, cables, and all other necessaries thereunto appertaining and belonging. The certificate of the enrolment of which said 168 ABBOTTS' FORMS. Bill of Sale of Shipping. schooner or vessel is as follows — to wit [here insert the certificate of enrol- ment at length — e. g., thus :] ENROLMENT, No. 20. Permanent. Enbolment, in conformity to an act of the Congress of the United State b of America, entitled, "An Act for Enrolling and Licensing Ships or Vessels to be Employed in the Coasting Trade and Fisheries,' and for Regulating" the Same." M. N , of , of the county of , in the State of , having taken or subscribed the oath required by said act, and having sworn that Y. Z., of , in the State of , secretary and treasurer of the Company, is a citizen of the United States, and sole owner of the ship or vessel called the Ann, of , whereof M. N. is master, and as he hath sworn is a citizen of the United States, and that the said ship or vessel was built at , in the State of , in the year eighteen hundred and , as per enrolment, No. , issued at this port. And said enrolment having certified that the said ship or vessel has deck and masts, and that her length is feet inches, her breadth feet inches, her depth feet inches, and that she measures tons ; and that she is a square-sterned schooner, has a round tuck, no galleries, and a billet head. And the said A. B. having agreed to the description and admeasurement above specified, and sufficient security hav- ing been given according to the said aat, the said schooner has been duly enrolled at the port of Given under my hand and seal, at the port of , this day of , in the year one thousand eight hundred and To have and to hold the said schooner or vessel Ann, and appurte- nances thereunto belonging, unto him, the said T. Z., secretary and treas- urer, etc., as aforesaid, his successor and assigns, to the sole and only proper use, benefit, and behoof of him, the said T. Z., his successor and assigns, as aforesaid, forever. And I, the said A. B. [or, we, the said A. B. and C. D.], have, and by these presents do promise, covenant, and agree, for myself, my heirs [or, ourselves, our heirs], executors, and administrators, to and with the said Y. Z., his successors and assigns, to warrant and defend the said schooner or vessel, and all the other before-mentioned appurte- nances, against all and every person and persons whomsoever. In testimony whereof, the said A. B. [and 0. D.] hereunto hath set his band and seal [or, have set their hands and seals], this day of , eighteen hundred and . [Signatures and seals.] Sealed and delivered in presence of [Signature of witness.'] 367. Bill of Sale of a Vessel Not Registered or Enrolled, To all to whom these presents may come, greeting : Know ye, that I, A. B., of , owner of the sloop called the , of the burden of tons, or thereabouts, in consideration of the sum of KILLS OF SALE. 169 Shipping. dollars, to me in hand paid, the receipt whereof I hereby acknow- ledge, have bargained and sold, and by these presents do bargain and sell, unto Y. Z., of , the said sloop, together with the mast, bowsprit, sails, boats, anchors, cables, and other appurtenances thereunto appertaining and belonging. To have and to hold the said sloop, and appurtenances thereunto be- longing, unto him, the said Y. Z., his executors, administrators, and as- signs, to his and their sole and only proper use, benefit, and behoof forever. And euktheb, I do hereby promise, covenant, and agree, for myself, my heirs, executors, and administrators, to and with the said Y. Z., his exec- utors, administrators, and assigns, to warrant and defend the title to the said sloop, and the appurtenances aforesaid, against all and every person and persons whomsoever. In witness whereof, I have hereunto set my hand and seal, this day of , in the year one thousand eight hundred and ' Signature and seal.] Sealed and delivered in presence of, [Signature of witness.] 368. Bill of Sale of Stocks Already Pledged to Another. "Whereas, I, A. B., of , hotel-keeper, am justly indebted to W. X. and Y. Z. in the sum of dollars ; therefore, in consideration of such indebtedness, and of one dollar to me in hand paid by said W. X. and Y. Z., I hereby sell, assign, transfer, and set over to them shares of the capital stock of the Bank, in the city of , belonging to me, and now held by M. N., subject, however, to such claims as said M. N. may have on the same. To have and to hold the said stock (subject as aforesaid) to the said W. X. and Y. Z., and their legal representatives and assigns forever, to be applied to the payment of such indebtedness ; and for the purpose of enabling said W. X. and Y. Z. to demand, receive, collect, and dispose of said stock and said interest, I hereby appoint and constitute them my true and lawful attorneys, and authorize them to take all lawful means they may deem ne- cessary and proper, in my name or otherwise, but at their own cost and ex- pense, to collect, receive, and realize said stock and interest, and to settle, negotiate, and arrange the same, and to transfer said stock, and to do and perform every act and thing necessary to be done in the premises as if I, the said A. B., was personally present and assenting thereto. In witness wheeeoe, I have hereunto set my hand and seal, this day of , 18 . In presence of, [Signature and seal.] [Signature of witness.'] 170 ABBOTTS' FORMS. General Rules Regarding Bonds. CHAPTEE XVII. BONDS. A bond is a written instrument under seal, by which the maker acknow- ledges some liability or duty, with a penalty for non-fulfilment. The maker of the bond is called the obligor ; the person to whom it is made, the obligee. A seal is generally regarded as essential to the idea of a bond, although in some of the States it is not so. As to what is sufficient to constitute a seal, see the titles of the respective States in the chapter on Acknowledgment of Deed's. No particular form of words is essential to constitute a bond, but any words which declare the intention of the parties, and denote that one is bound to the other, will be sufficient. The apt and appropriate form, however, is, first, a clause declaring that the obligor is bound to the obligee in a specified sum of money, for the payment of which he usually stipulates that he binds his heirs as well as his executors and administrators. The effect of this is to render the heirs liable upon it to the extent of the property which they inherit from him. This first part of the bond, which is termed the penal clause or the obligation, closes with a statement that the instrument is sealed, and of the date thereof. If nothing further is added, the instrument is termed a single bond, or bill penal. tJsually, a condition is inserted before the signatures ; the object of the condition is to state the acts, a performance of which ' on the part of the obligor or others will exonerate him from liability for the penalty. If the liability is intended to be limited by the circumstances or object under which the bond is given, they may conveniently be stated in a recital introducing the condition. The chief differences between a bond and an unsealed note are, that the seal imports a sufficient consideration to make the instrument binding ; that the bond is not barred by the Statute of Limitations until the lapse of twenty years ; that the remedy may survive against the heirs if they are mentioned ;(a) and that a surety joining is not bound beyond the amount of the penalty. A surety joining in a bond is bound to the obligee in the same sense as the principal, unless the bond is otherwise expressed ; but he will be exonerated if the obligee, without his knowledge or consent, alters the obligation of the principal, to the prejudice of the surety. If those first signing a bond desire not to be bound unless all whom they expect to sign, do so, they should declare their execution of it to be on this condition ; and this should, for convenience, be expressed in the bond. , , Where a bond is prescribed by a statute, it will be deemed valid if it conform substantially to the requirements of the statute, and do not vary in any matter to the prejudice of the party from whom it is exacted ; and it will be deemed sufficient as towards the party to whom or for whose benefit, such bond is given, if it do not vary to the prejudice of his rights. But every material re- quirement mustbe observed. If the bond contains any thing illegal, the whole is void. If it contains any thing superfluous which is not illegal, the excess is only void. If any material thing is omitted, the statute is not complied with. A bond should be completely written, as to all material parts, before it is delivered. The practice of executing and delivering, with any essential thing omitted, to be inserted afterwards by another person than the obligor, is to be avoided. According to the view of the law which obtains in several of the States, such an instrument is wholly void. (a) By the statutes of New York and extent of the value of the inheritance. In some other States the heir may be held some of the States, too, the use of seals liable for any debts of the ancestor, to the upon private writings is abolished bylaw. BONDS. 171 Analysis of Chapter. I. Bonds conditioned fob the payment of money only. paob 869. Short form of bond for payment of money, with or without penalty. 178 870. Common form of bond for payment of money 178 871. The same ; with interest periodically meanwhile 173 872. The same ; for payment in equal annual instalments, with interest annually on what remains unpaid 174 878. The same ; for payment in unequal instalments with interest 174 874. The same ; for payment in instalments with interest on eaoh in- stalment as it falls due ■ ■ 174 875. The same ; for payment after death of third person 174 876. Bond with interest clause — usual where mortgage is given ... 175 877. The same ; with insurance clause 175 878. Bond by several obligors 176 879. Signature by an obligor who will not be bound unless others sign.. 177 880. Bond by several persons, bound severally, for several amounts .... 177 881. Bond by one obligor to several obligees 177 882. Bond to executors or administrators 178 888. Bond to an unincorporated society 178 884. Bond to a corporation 178 885. Bond by a corporation 179 886. Negotiable bond of corporation 179 887. The same; secured by mortgage t 180 888. Form of coupons or interest warrants annexed to negotiable bond.. 181 889. Bond with warrant of attorney to confess judgment 181 890. Short form of the same 182 391. Collateral bond for the payment of money already secured by mort- gage only 182 892. Collateral bond by surety, for payment of money already secured by bond and mortgage 183 893. Bond for payment of an annual sum to two persons and the survivor for life 183 894. Bond for payment of an annuity for a term of years 184 895. Bond for payment of money upon expiration of apprenticeship, or upon marriage 184 896. Bond or bill for an unliquidated sum 185 897. Bond by debtors to pay according to a composition deed 185 II. BoTTOMBY AND BESPONDENTIA BONDS. 898. Bottomry bond 186 899. Bottomry bond by * part owner, sigLJng as attorney for other owner 187 400. Respondentia bond '. . . 188 III. Bonds for the performance ob non-performance of various acts. 401. Bond for the performance of covenants 1S9 402. Bond that a warranty shall be kept 1S9 408. Bond for repayment of purchase-money, on a breach of warranty. 190 404. Bond for a deed, by vendor to purchaser 190 405. Bond with, surety, to execute a conveyance ; 191 406. Bond to give a quit-claim 192 407. Bond that a third person shall convey on coming of age 192 408. Condition for quiet possession meantime 198 409. Bond to execute an assignment 198 410. Bond to pay off and cancel a mortgage ._ 193 411. Bond by vendor, to deliver lost title-deeds when found, and to in- demnify against encumbrances 194 172 ABBOTTS' FORMS. Bonds. PAGl 412. Bond by part owners of a ship, on selling the same, to procure bill of sale from the other part owner 194 418. Bond of tenant, with surety, for the payment of rent 195 414. Bond of tenant, with surety, for the surrender of premises in good condition, etc , 196 415. Bond, with surety, to deliver to Btteriff goods levied on, and left in defendant's possession 196 416. Bond to executors, etc., to refund legacy if assets prove insufficient 197 417. Bond to executors, etc., on payment of a legacy to a minor 198 41 8. Bond to maintain two persons for life 198 419. Bond to marry, or to paj a sum of money 199 420. Bond to contribute to the support of an illegitimate child 199 421. Bond to serve in consideration of the payment of a debt 199 422. Bond by a father for service of apprentice 200 423. Bond, for clothings and in sickness maintaining an apprentice, and for his fidelity 200 424. Bond of master, to discharge an apprentice before the expiration of his term 201 425. Bond to indemnify a master for discharging an apprentice 202 426. Bond by one empowered to collect debts for executors, etc 202 427. Bond for the return of goods to be sold, or their value 203 428. Bond for the fidelity of a clerk 203 429. Bond for the fidelity of the treasurer of an unincorporated associ- ation 204 480. Bond for the fidelity of the cashier or teller of a bank 204 IV. Bonds of indemnity. 431. Bond, with surety, to indemnify the sheriff on levying an execution 205 432. Bond, with surety, to indemnify maker of note, or acceptor of bill for accommodation, from loss thereby 206 488. Bond to indemnify partners having indorsed for accommodation, against liability thereby 206 484. Bond by a person carrying on business in the name of another, to indemnify the latter from loss or damage 207 435. Bond to indemnify tenant on paying rent when title is in dispute. . 208 436. The same, another form ; requiring recovery against the tenant 208 437. Bond to indemnify against claim of dower 209 438. Bond to indemnify on paying a lost note or bill 209 439. Bond to indemnify on paying a lost bond 210 440. Bond to indemnity a surety in a bond for payment of money 210 441. The same ; to a surety in a bond for performance of covenants 211 412. Bond to indemnify a receiptor to the sheriff 211 V. Official bonds. 443. General form 212 444. Bond of sheriff 212 445. Affidavit of the sufficiency of sureties, to be indorsed on the fore- going bond 213 446. Clerk's certificate of approval of sureties 218 I. Bonds Conditioned fob the Payment of Monet Only. The penal sum is usually twice the principal intended to he secured. If no place of payment is specified, it will he for the obligor to seek the obligee. If the place is specified, the obligee is not bound to accept payment elsewhere. If no time is specified, the bond is payable forthwith. If the payment is required to hu BONDS. 173 General Principles. Money Bonds. " within" a certain period, or to be " on or before" a certain day, the obligor may pay at any time before the last day has passed. Where successive payments of interest or principal are stipulated for, the condition may provide that, upon de- fault in any one, the obligee may elect to require payment of all ; otherwise, he can only proceed for that which is in default. 369. Short Form of Bond for Payment of M oney, With or Without Penalty. Know all men by the presents, that I, A. B., of , in the county ot , and State of , am bound unto Y. Z., of , for the pay- ment of dollars, on the day of , 18 , with interest at per cent, per annum ; for which I bind myself, my heirs, executors, and ad- ministrators, to the said Y. Z., his executors, administrators, and assigns [in the penal sum of dollars]. Witness my hand and seal, this day of , 18 . A. B. [Seal.] 370. Common Form of Bond for Payment of Money. (a) Know all men by these presents, that I, A. B., of the town of , in the county of , and State of , merchant, am held and firmly bound unto Y. Z., of the said town, farmer, in the sum of dollars [in- serting the penal sum, which is commonly double the amount of the principal sum intended to be secured, in order to cover interests, costs, expenses, and other contingencies], good and lawful money of the United States, to be paid the said Y. Z., his executors, administrators, or assigns, for which payment well and truly to be made I do bind myself, my heirs, executors, and ad- ministrators, firmly by these presents. Sealed with my seal, and dated the day of , 18 . The condition of this obligation is such, that if the above-bounden A. B., his heirs, executors, and administrators, or any of them, shall well and truly pay, Or cause to be paid, unto the above-named Y. Z., his executors, administrators, or assigns, * the just and full sum of dollars [inserting the principal intended to be secured], with interest at the rate of per cent, per annum [or, with legal interest] for the same, on [or before](5) the day , which will be in the year one thousand eight hundred ant , without fraud or other delay, * then this obligation is to be void, otherwise to remain in full force. A. B. [Seal.] 371. The Same ; With Interest Periodically Meanwhile. [As in Form 370, substituting, instead of the words between the * *, the following :] the just and full sum of dollars [stating the whole prin- cipal secured], on the day of , which will be in the year one thousand eight hundred and , with interest thereon from the date hereof [or, from the day of , 18 ], at the rate of per cent. (S) If the lender desires to keep the for payment, the words, " or before," money at interest until the day limited should be omitted. 174: ABBOTTS' FORMS. Bonds for Payment of Money only. per annum [or, with legal interest thereon], payable semi-annually [or, quarterly], on the day of and [designating the months in- tended], in each year, until the whole of said principal sum be paid, with- out fraud or other delay, — 372. The Same; For Payment in Equal Annual Instalments, with Interest Annually on What Remains Unpaid. [As in Form 370, to the first *, concluding thus:] the just and full sum of dollars [stating the whole principal secured], in annual pay- ments, from the date hereof [or, commencing on the day of , 18 ], with interest thereon, at the rate of per cent, per annum [or, with legal interest thereon], payable annually, with such instalments [or, semi- annually, or. quarterly, on the days of , naming the months for payment of interest, in each year], without fraud or other delay, then this obligation to be void ; but if default shall be made in payment of any or either of the said sums, on the days on which the same ought to be paid, as aforesaid, then this obligation shall remain in full force. A. B. [Seal] 373. The Same; For Payment in Unequal Instalments, With Interest. [As in Form 370, to the first *, concluding thus :] the just and full sum of dollars [stating the whole principal secured], in manner following— that is to say, the sum of dollars, on the day of next; the sum of dollarB, on the day of , 18 ; and the remaining sum of dollars, in one year from the said last-mentioned date, to- gether with the interest, at the rate of t per cent, per annum [or, with legal interest], on the whole sum remaining unpaid, at the time of each payment, without fraud or other delay, then this obligation shall be void; but if default shall be made, in payment of any or either of the said sums, on the days on which the same ought to be paid, as aforesaid, then this ob- ligation shall remain in full force. A. B. [Seal] 374. The Same; For Payment in Instalments, With Interest on Each In- stalment, as It Falls Due. [As in Form 370, substituting, instead of the words between the * *, the following:] the just and full sum of dollars [stating the whole princi- pal secured], with interest, at the rate of per cent, per annum [or, with legal interest], said principal to be paid in equal annual instal- ments, with the interest on such instalment, on the ■ day of in each year, without fraud or other delay, — 375. The Same ; For Payment After Death of Third Person. [As in Farm 370, substituting, instead of the words between the * *, th* following :] the just and full sum of dollars [Mating the whole prii* BONDS. 175 Mortgage Bonds. cipal secured], with interest, at the rate of per cent, per an- num [or, with legal interest], within the space of months next after the decease of M. IT., of , merchant, without fraud or other delay. 876. Bond with Interest Clause, Usual whers Mortgage is Given. Know all men by these presents, that I, A. B., of the city of , in the State of , am held and firmly bound unto Y. Z., of the same place, in the sum of dollars [inserting the penalty], lawful money of the United States, to be paid to the said Y. Z., his executors, administra- tors, or assigns, for which payment well and truly to be made, I bind my- self, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal, dated the day of ,18 . t The condition of the above obligation is such, that if the above-bounden A. B., his heirs, executors, and administrators, or any of them, shall well and truly pay, or cause to be paid, unto the above-named Y. Z., his exec- utors, administrators, or assigns, the just and full sum of dollars, on the day of , which will be in the year one thousand eight hundred and , with interest, at per cent, per annum, payable half yearly from the date hereof, without fraud or other delay, then the above obliga- tion to be void; otherwise, to remain in full force. And it is hereby expressly agreed, that, should any default be made in the payment of the said interest, or of any part thereof, on any day whereon the same is made payable, as above expressed, and should the same remain unpaid and in arrear for the space of days,(c) then and from thenceforth — that is to say, after the lapse of the said days — the aforesaid principal sum of dollars, with all arrearage of interest thereon, shall, at the option of the said Y. Z., or his executors, administra- tors, or assigns, become and be due and payable immediately thereafter, although the period first above limited for the payment thereof may not then have expired, any thing hereinbefore contained to the contrary thereot in anywise notwithstanding. A. B. [Seal.] 377. The Same ; With Insurance Clause. ' [Penal clause, as in preceding form, or Form 378, to the t ] The condition of this obligation is such, that if the above-bounden A. B., his heirs, executors, and administrators, or any of them, shall and do well and truly pay, or cause to be paid unto the above-mentioned Y. Z., his ex- ecutors, administrators, or assigns, the just and full sum of dollars, on the day of , which will be in the year one thousand eight hun- dred and , with interest thereon, at per cent, per annum [or, with legal interest], payable half yearly, from the date hereof, without fraud or other delay ; and shall keep the buildings erected, or to be erected, on the premises described in a certain mortgage, executed by the said A. B. [and 0. B. his wife], and bearing even date herewith, and being collateral hereto, (c) Usually twenty days or thirty days , 176 ABBOTTS' FORMS. Bonds to or by Particular Classes of Persons. insured in some solvent incorporated insurance company of the State of , against loss or damage by fire, to an amount not less than dollars ; and shall assign the policy to be taken for such insurance to the obligee herein, or his executors, administrators, or assigns, as collateral security hereto, without fraud or other delay, then this obligation to be void ; other- wise, to remain in full force. And it is hereby expressly agreed, that in case the insurance above mentioned shall not be effected or continued in the manner above provided, that then the said obligee, his executors, administrators, or assigns, may effect or continue such insurance in the name of the said obligor or other- wise, and the premiums paid therefor shall be chargeable as part of the principal sum hereby secured to be paid. And it is hereby further expressly agreed, that, in case any instalment of principal, or any part thereof, or any interest moneys, or any part thereof, hereby secured to be paid, shall remain due and unpaid for the space of days after the same shall, by the terms hereof, become due and pay- able [or any insurance premiums paid by the obligee or his representatives, as aforesaid, shall not be repaid within days after notice thereof to the said A. B., his executors, administrators, or assigns], that then and from thenceforth — that is to say, after the lapse of said days — the whole principal sum hereby secured to be paid, together with all arrearages of interest thereon, shall, at the option of the said Y. Z., his executors, ad- ministrators, or assigns, become due and payable forthwith, although the period first above limited for the payment thereof may not then have ex pired, any thing herein contained to the contrary notwithstanding. A. B. [Seal] 378. Bond by Several Obligors. Enow all men by these presents, that we, A. B., of the city of , in the State of , merchant, and 0. D. and E. F., of the town of , in the county of , in said State, manufacturers, are held and firmly bound unto Y. Z., of the city of , and State of , in the sum of dollars [inserting the penal swm\ good and lawful money of the United States, to be paid to the said Y. Z., bis executors, administrators, or assigns, for which payment well and truly to be made, we do bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, (- termination of the said term, with all the materials, utensils and things which are now in, about and belonging thereto, unto the said Y. Z., his heirs, executors, administrators or assigns, in as good repair and condition as they now are, reasonable use and wear and tear thereof [and damages by the elements] in the mean time only excepted, then this obligation is to be void ; otherwise, to be in full force, [Signatures and seals.] I 415. Bond with Surety, to Deliver to Sheriff Goods Levied On and Left in Defendants Possession. Know all men by these presents, that we, A. B., of the town of , in the county of , and State of , farmer, and C. D. of the same place, merchant, are held and firmly bound unto Y. Z., the sheriff of the county of , in the sum of dollars, good and lawful money of the United States, to be paid to the said Y. Z., his executors, administrators or assigns, for which payment, well and truly to be made, we do bind our- selves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals ; dated this day of ,18 . "Whereas the above-named Y. Z., sheriff of the said county of , by virtue of an execution [or, a writ of fieri facias], issued out of the court of , for the , to him directed and delivered, has seized, and taken in execution the following goods [describing them], as the property of the above-bounden A. B., defendant in the said execution [or, writ of fieri facias]. BONDS. 197 To Refund Legacy. Now thb condition of tins obligation is such, that if the above-bounden A. B. or 0. D., or their executors, administrators or assigns, or any of them, shall well and truly deliver up or cause to be delivered up to the said sheriff all the above-mentioned goods, whenever required by the said sheriff, in a sound andln every way as good a situation and condition as when the above-mentioned goods were first levied on by the said sheriff, and that too without fraud or other delay, then this obligation is to be void ; otherwise, to remain in full force. A. B. [Heal] 0. D. [Seal] 416. Bond to Executors or Administrators With Will Annexed, to Refund Legacy if Assets Prove Insufficient. Know all men hy these presents, that I, A. B., of , in the county of , and State of , am [or, if with surety, say, we, A. B., of, etc., and C. D , of, etc., are] held and firmly bound unto W. X. and Y. Z., of , in said State, executors of the will of M. N., deceased [or, admin- istrators with the will annexed of M. N., deceased], late of the city of , and State of , in the sum of dollars [inserting the penal sum], good and lawful money of the United States, to be paid to the said executors [or, administrators] as aforesaid, their survivor or survivors, or their or his successors or assigns, for which payment, well and truly to be made, I do bind myself, my heirs, executors and administrators [or, we do bind ourselves, our heirs, executors and administrators, jointly and sev- erally], firmly hy these presents. Sealed with my seal [or, our seals] ; dated this day of ,18 . Whbeeas, M. N. [father of the said A. B.], by his said will, hearing date the day of , 18 , gave and bequeathed to the said A. B. a legacy of dollars [or, shares of the capital stock of the bank, or otherwise, as the ca>e may he], * which the said W. X. and Y. Z. have paid, transferred and delivered [«;-, are about to pay, transfer and deliver] to the said A. B. Now the condition of this obligation is such, that if the said legacy, or any part thereof, shall at any time be necessary to discharge any debt, lia- bility or legacy, which the sa:d executors [or, administrators] shall not have other assets to pay, then, and in such case, if the said A. B., his heirs, executors or administrators shall return the said legacy, or such part thereof as shall appear to be necessary for the payment of such debts or liabilities, or for the payment of a proportionate part of such legacies, and the costs and charges, if there be any, incurred by reason of the payment of the said A. B. ; or, if the probate of the will of the said deceased be re- voked, or the will declared void, wholly or as to such legacy, then, and in such case, if the said A. B. shall return the whole of the legacy [with in- terest] to the said W. X. and Y. Z., their survivors, or their or his successors or assigns, then this obligation is to bo void; otherwise, to remain in full force. [Signatures and seals.] 198 ABBOTTS' FOBMS. Bond for Legacy. Bond for Maintenance. 417. Bond to Executors, etc., On Payment of a Legacy to a Minor. Know all men by these presents, that I, A. B , of , in the county ot ,and State of , am held and firmly bound unto W. X. and Y. Z., of , in the said State, executors of the will of M. TS.,. deceased \or, administrators with the will annexed of M. N"., deceased], late of the city of , and State of , in the sum of dollars [inserting the penal sum], good and lawful money of the United States, to be paid to the said executors [or, administrators] as aforesaid, their survivor or survivors, or their or his successors or assigns, for which payment, well and truly to be made, I do bind myself, my heirs, executors and administrators, firmly by these presents. Sealed with my seal ; dated the day of , 18 . Whereas the said M. IT., by his said will, bearing date the day of , 18 , gave and bequeathed to 0. B., the minor son of the above- bounden A. B., a legacy of dollars [or otherwise, as the case may le 1 which the said W. X. and Y. Z., at the request of said A. B., have paid, transferred and delivered [or, are about to pay, transfer and deliver] to tl»j said A. B., for the use and benefit of the said legatee, his minor son. Now the condition of this obligation is such, that if the said A. B. shall pay the said legacy to the said C. B., his son, when he shall attain the age of twenty-one years ; and if the said 0. B., within months after his attaining such age, or his executors or administrators, upon his decease before attaining such age, shall execute and deliver to the said W. X. and Y. Z., as executors [or, administrators] as aforesaid, their survivor or suc- cessors, a sufficient release and discharge of and from the said legacy so paid as aforesaid, and also if the said A. B., his executors and administra- tors, do and shall, at all times hereafter, well and sufficiently save and keep harmless and indemnified the said W. X. and Y. Z , their heirs, executors, administrators, survivors and successors, of and from all actions and de- mands, for, about or concerning the said legacy in anywise, then this obli- gation is to be void ; otherwise, to remain in full force. [Signature and seal.] 418. Bond to Maintain Two Persons for Life. [If with surety, the penal clause will be as in Form 405 ; if without surety, as in Form 402, to the *, and thence continue thus :] Whereas the above-bounden A. B., in consideration of the sum of dollars, to him in hand paid by the above-named Y. Z. [or, a conveyance of land this day made by said Y. Z., and W. Z. his wife], has agreed to main- tain them, the said Y. Z. and W. Z. for life. Now, theeefore, the con- dition of this obligation is such, that if the said A. B., his executors or administrators, shall from time to time, and at all times hereafter during the natural life of the said "W. Z. and Y. Z., and the survivor of them, well and sufficiently support and maintain, and clothe, and in all respects .suitably care and provide 1 them and each of them, in the house of said A. B [or, and shall allow the said Y. Z., and W. Z. his wife and the survivor of them the BONDS. 199 To Marry. . To Support Child. sole use of the room which they now occupy on the premises], and also shall pay to them, during their joint lives, on the day of , in each year, the clear yearly sum of dollars, and to the survivor of them, during his or her life, the clear yearly sum of dollars, on the like days, then this obligation is to be void; otherwise, to remain in full force. Provided, however, that the said W. Z. and Y. Z. shall not refuse to re- side in the county of aforesaid, except such refusal he occasioned by inability to obtain comfortable and sufficient board, lodging and main- tenance in the said county. [Signatures and seals.] 419. Bond to Marry or to Pay a Sum of Money. [If with surety, the penal clause will he as in Form 405 ; if without, as in Form 402 to the *, and thence continue thus :] The condition of the above obligation is such, that if the above-bounden A. B. do, on or before the day of , espouse and marry W. Z., daughter of the said Y. Z., if the said "W. Z. will thereunto assent and the laws of this State [or, Commonwealth] will permit the same; or if it shall happen that the said A. B. shall not marry her as aforesaid, then if the said A. B. shall well and truly pay, or cause to be paid, unto the said W. Z., her executors, administrators and assigns, the sum of dollars on the day of next ensuing the said ' day of , above mentioned and limited for the said marriage, then this obligation is to be void ; otherwise, to remain in full force. [Signatures and seals.] 420. Bond to Contribute to the Support of An Illegitimate Child. [If with surety, the penal clause will be as in Form 405 ; if without surety, as in Form 402 to the *, and thence continue thus :] Whereas the said Y. Z. has made oath before M. 1ST, a justice of the peace in and for the said town [or, county] of , that the above-bounden A. B is the father of a male [or, female] bastard child, of which she has lately been delivered, and the said A. B- has thereupon agreed to assist the said Y. Z. in the support and maintenance of the said child : Now, therefore, the condition of the above obligation is such, that it the above bounden A. B., his heirs, executors and administrators, or any of them [or, the above-bounden A. B. and O. D., or either of them, or their or either of their heirs, executors or administrators], shall and do well and truly pay to the said Y. Z., her executors, administrators or assigns, towards the support and maintenance of the said child, the sum of dollars and cents per week, for each and every week from the day of , 18 , during tin term of years, if said child shall live so long, then, etc. [as above]. 421. Bond to Serve in Consideration of the Payment of a Debt. Know all men by these presents, that I, A. B., of , in considera- tion of the sum of to me in hand paid by Y. Z., of , have bound myself, and by these presents do bind myself, *a servant unto the said Y. Z., to serve him, the said Y. Z., his executors and administrators [and assigns], 200 ABBOTTS' FORMS. Bonds respecting Apprenticeship. for the space of months and days from the day of the date hereof, and I do covenant so to serve faithfully during the said time ; and so to serve at the rate of dollars per month for all such moneys as the said Y. Z. hath undertaken, or shall undertake, and be obliged to pay at my request, for me and on my account, he, the said Y. Z., finding and pro- viding for me during the said time, in board, lodging, and washing, as is customary for servants. In witness whereof, I have hereunto set my hand and seal, this day of , 18 . [Signature and seal.] 422. Bond by a Father for Service of Apprentice. Know all men by these presents, that I, A. B., of the town of , i; the county of , and State of , farmer, am held and firmly bound unto Y. Z , of the town of , in the county of , and State of , blacksmith, in the sum of dollars [inserting penal sum], good and law- ful money of the United States, to be paid to the said Y. Z., his executors administrators or assigns ; for which payment,- well and truly to be made, I do bind myself; my heirs, executors and administrators, firmly by these presents. Sealed with my seal ; dated this day of ,18 .t Whkekas 0. B., son of the above-bounden A. B., by indenture of appren- ticeship, bearing even date with the above-written obligation, has been ap- prenticed to the above-named Y. Z., with him to dwell and abide, from the day of the date thereof unto the full end and term of years thence next ensuing, as by the said indenture more fully appears. Now the con- dition of this obligation is such, that if the said 0. B. shall well and truly serve and dwell with the said Y. Z. after the manner of an apprentice, dur- ing all the said term of years, according to the true intent and mean- ing of the said indenture; and if the said 0. B. shall not, during said" time, detain, convert, waste, embezzle, make away or lend, without his master's order or privity, any goods and chattels of the said Y. Z., his executors or administrators, but shall behave himself honestly and obediently towards the said Y. Z., his executors and administrators, as a good and dutiful ap- prentice ought to do, during the said term [or may provide for the obligor • reimbursing, as in the following form, last clause], then this obligation is to be void ; otherwise, to remain in full force. A. B. [Seal.] 4 13. Bond for Clothing and in Sickness Maintaining An Apprentice, and for His Fidelity. [The penal clause will be as in the preceding form to the +, and thence continue thus :] Whbkeas, C. B. [son of the above-bounden A. B.], by an indenture bear- ing even date with the above obligation, has been apprenticed to the above- named Y. Z. for the term of years from the date hereof, as by the said indenture appears ; and whereas the said Y. Z. accepted of the said 0. B. as his apprentice on the above-boundon A. B. agreeing to find and provide BONDS. 201 Relating to Apprenticeship. for the said 0. B. [his son] all and all manner of wearing apparel and wash- ing during his said apprenticeship, and in case of sickness, proper diet, lodging, attendance, medicines and medical advice : Now the condition of this obligation is such, that if the above-bounden A. B., his executors or administrators, or any of them, shall at all times hereafter during such ap- prenticeship, at his and their own proper costs and charges, find and pro- vide, or cause to be found and provided, for the said 0. B. all and all man- ner of wearing apparel whatsoever, and washing, fit and convenient for the said 0. B. ; and, in case the said 0. B. shall at an^ time during his said ap- prenticeship be rendered incapable, by sickness or otherwise, of performing his duty as an apprentice, shall as often and so long as such shall be the "case, at his and their own proper costs and charges, find and provide for the said C. B. fit and convenient diet, lodging, attendance, medicines and medical advice, and thereof and therefrom, and from the covenants in the said indenture of apprenticeship contained relating thereto, shall save, keep harmless and indemnified the said Y. Z., lis executors and administrators, and every of them ; and also in case the said 0. B., at any time during his said apprenticeship, shall detain, convert, and embezzle, make away or lend, without his said master's order or privity, any money, goods, wares, merchandise or other things appertaining to the said Y. Z., his executors or administrators, then if in such case the said A. B. shall always, within days next after notice thereof to him or them, make sufficient recom- pense, payment and satisfaction to the said Y. Z., his executors or adminis- trators, for the same, then this obligation is to be void ; otherwise, to re- main-in full force. [Signature and seal,] 424. Bond of Master to Discharge An Apprentice Before the Expiration of His Term. [The penal clause will be as in Form 422 to the t, thence continuing thus :] Whereas, W. Z., son of the above-named Y. Z., by an indenture of ap- prenticeship, bearing even date herewith, has been apprenticed to the above-bounden A. B., to serve him as an apprentice from the date thereof for and during the term of years, as by the said indenture will appear ; and whereas, previous to the execution of the said indenture of apprentice- ship, it was agreed between the said Y. Z and the above-bounden A. B., that the said W. Z. should be discharged from his said apprenticeship at the expiration of the first years of the said term of years : Now the condition of this obligation is such, that if the said A. B., his executors or administrators, shall at the expiration of the first years of the said apprenticeship term of years, release and discharge the said W. Z., of and from his said service and apprenticeship, and deliver up the said indenture of apprenticeship to be cancelled, and shall permit and suffer the said W. Z. peaceably and quietly to have and enjoy the remainder of his said apprenticeship term of years, for his own benefit and advantage, then this obligation is to be void ; otherwise, to remain in full force. [Signature and seal,] 202 ABBOTTS' F OEMS. Bond of Agent or Collector. 425. Bond to Indemn ify a Master for Discharging An Apprentice. [The penal clause will he as in Form 422 to the t, thence continuing thus:} Whereas, 0. B., son of the said A. B., by an indentnre of apprenticeship, bearing date on or about the day of , was apprenticed unto the above-named Y. Z., to serve him as an apprentice for the space of years from the date of the said indenture, as by thp said indenture of ap- prenticeship will appear ; and whereas the said Y. Z., as well at the desire of the said C. B., as with the consent and approbation of the above-bounden A. B., and on his promise of indemnity, hath discharged his said apprentice of and from his service [and hath repaid unto the said A. B. the sum of dollars, by him had and received with his said apprentice, the receipt of which said sum of dollars he, the said A. B., doth hereby acknowledge] : Now the condition of this obligation is such, that if the above-bounden A. B., his heirs, executors and administrators, or any of them, shall at all times hereafter, save, defend, keep harmless and indem- nified the said Y. Z., his heirs, executors and administrators, of and from all and every the covenants in the said indentnre of apprenticeship con- tained, and which on the part of the said Y. Z., his executors or adminis- trators, are or ought to be done and performed, and all action and actions, suit and suits, both at law and in equity, costs, charges, damages and expenses whatsoever, which shall or may happen to him or them, for or by reason thereof, or touching or concerning the said indenture of apprentice- ship, or by reason or means of any sum or sums of money by him had and received with the said 0. B., or from payment thereof or any wise relating to any of the said matters, then this obligation is to be void ; otherwise, to remain in full force. [Signature and seal.] 426. Bond By One Empowered to Collect Debts for Executors, etc. Know all mem by these presents, that I, A. B., of , in the county of , and State of , am [or, if with surety, say, we, A. B., of, etc., and 0. D., of, etc., are] held and firmly bound unto W. X. and Y. Z., of , in said State, executors of the will of M. N., deceased [or, admin- istrators of the goods, chattels and credits which were of M. N., deceased], late of the city of , and State of , in the sum of dollars [inserting the penal sum], good and lawful money of the United States, to be paid to the said executors [or, administrators] as aforesaid, their sur- vivor or survivors, or their or his successors or assigns, for which payment, well and truly to be made, I do bind myself, my heirs, executors and administrators [or, we do bind ourselves, our heirs, executors, and admin- istrators, jointly and severally], firmly by these presents. Sealed with my seal [or, our seals] ; dated this day of ,18. Whereas the above-named W. X and Y. Z., as executors of the last will and testament [or, as administrators of the goods, chattels and credits which were] of M, N., late of , deceased, by their power of attorney, bearing even da*.; herewith, have constituted and appointed the above- bounden A. B., of , thei • true and lawful attorney for them, and in BOOTS. 5*08 Bonds for Fidelity. their names, and for their sole use and benefit, to ask, demand, collect and receive of, and from all and every person and persons, debtors to the estate of the said M. N., all sum and sums of moneys from them, or any of them, now [or to become] due and owing to the estate of the said M. N., as in and by the said power of attorney appears : Now the condition of the above obligation is such, that if the-above-bounden A. B., his executors and administrators, do, and shall from time to time and at all times hereafter, upon request, deliver or cause to be delivered, unto the said W. X. and Y. Z., their successors or assigns, a just and true account, in writing, of all moneys which he shall receive by virtue of said power of attorney, with the names of the persons from whom received, and for what ; and also from time to time, pay and deliver over unto the said W. X. and Y. Z., their successors or assigns, or to such other person or persons as shall be thereto by them appointed, all such moneys as upon such account or otherwise shall appear to have been received by him, or be remaining in his bands, without fraud or further delay, then this obligation is to be void ; otherwise, to be in full force and virtue. [Signature and seal.] 427. Bond for the Return of Goods to be Sold, or Their Value. [The penal clause will be as in Form 401, thence continuing thus :] Whereas the above-named W. X. and Y. Z. have delivered to the above- bounden A. B. certain merchandise, consisting of [silks, velvets, and other goods], to the value of dollars, to be by him sold [by public sale forth- with, for ready money] : Now the condition of this obligation is such, that if the said A. B., his executors or administrators, shall within next ensuing the date hereof return unto the said "W. X. and Y. Z., or either of them, their or either of their executors, administrators or assigns, all such of the said merchandise as shall then remain unsold (casualties hap- pening by fire, only, excepted), and pay, or cause to be paid, unto the said W. X. and Y. Z., or either of them, their or either of their executors or administrators or assigns, all such moneys as shall have been by him then received for the merchandise so sold [or the price of all such merchandise which shall then have been sold], then this obligation to be void ; other- wise, to remain in full force. [Signature and seal.] 428. Bond for the Fidelity of a Cleric. [The penal clause may be as in Form 401, thence continuing thus :] Whebeas the above-named Y. Z. has [or W. X. and Y. Z. have] employed M. N. as a clerk or salesman [or, clerk or porter, or otherwise], in their busi ness of : Now the condition of this obligation is such, that if the said M. N. shall well and faithfully [or, with honesty and in good faith] discharge his duties as such , and shall also account for all moneys and property, and other things which may come into his possession or under his control therein, then this obligation is to be void ; otherwise, to remain in full fo- ie. [Signature and seal.] 204 ABBOTTS' FORMS. Bonds for Fidelity. 429. Bond, for the Fidelity of the Treasurer of an Unincorporated Association. [The penal clause may he as in Form 405 to the *, thence continuing thvs :] Whereas the above-bounden A. B. has been chosen treasurer of the Company [or, Association, or, Society], by reason whereof he will receive or have control of moneys, property, and other things of the said company [or, association, or, society], and others: Now the con- dition of this obligation is such, that if the said A. B., his executors or ad- ministrators, shall honestly and in good faith(i) serve as such treasurer during his continuance in said office within the term for which he is chosen [or, so long as he shall continue and be continued in said office], and hold and dispose of whatever he may receive as such treasurer, as the association or its board of directors may direct, and according to the provisions of the constitution, by-laws, and regulations of said company [or, association] now- existing, or which may be by them adopted; and at the expiration of his said office, or sooner if thereto required, upon due request to him or them to be made, shall make and give unto such auditor and auditors as shall be appointed by the said company, a just and true account of all moneys, property, and other things, as have come into his possession, or under his control or charge, as treasurer aforesaid ; and shall pay and deliver over to his successor in office, or any other person duly authorized to receive the same, all such moneys, property, and other things which shall appear to be in his hands and due by him to the said company [or, association, or, society], then this obligation is to be void; otherwise, to remain in full force. [Signatures and seals.'] 430. Bond for the Fidelity of the Cashier or Teller of a Bank. [The penal clause may he as in Form 405 to the *, thence continuing thus:] Whereas the above-bounden A. B. has been chosen and appointed cashier [or, teller] of the Bank, by reason whereof he will receive, or have control or be chargeable with money, property, or other things of said bank, and others: Now the condition of this obligation is such, that if the said A. B., his executors or administrators, shall well and truly serve the said bank as such officer during his continuance in office, within the term for which he has been chosen [or, so long as he shall continue and be continued in said office] and well and truly perform and discharge all his duties as such officer, and shall at the expiration of his said office, or whenever sooner thereto required, upon request to him or them made, shall make or give unto the said bank, or their agent, or attorney, a just and true account of all moneys, property, and other things, as shall have come into his possession, control, or charge, as such officer, and shall pay and deliver (i) The bond of an officer of a volun- If his sureties are to be auswerahle for tary association will usually be for his in- the latter as well as the former, insert the tegrity, but not 'or his skill an ' diligence, words, " well and truly." bonds. 205 Indemnity. over to his successor in office, or any other person duly authorized to re- ceive the same, all such balances or sums of money, property, and other things, which shall appear to be in his hands, or chargeable to him, and due or deliverable by him to the said bank, then this obligation to he void ; otherwise, to remain in full force. [Signatures and seals.] IV. Bonds of Indemnity. An obligation of indemnity against a demand includes, as incidental thereto, indemnity against damages and costs sustained in consequence of the demand,(/fc) but an obligation of indemnity against costs, charges, and expenses does not extend to damages.(Z) An obligation to indemnify against the claims and de- mands of all persons does not extend to tortious acts.(»i) An obligation to indemnify against " charge or liability" is broken by the existence of a liability, even without payment. (n) But an obligation to in- demnify against a '■ claim," or a "demand," or " damage," or " molestation," or " loss," or " expenses," or " costs," is not broken without actual loss or ex- pense.^) An obligation to indemnify one against expenses " which he may incur," is not broken by mere liability, but payment must be shown ;(p) but a promise to indemnify him against damages, costs, and charges, " to be imposed on or demandable from him," extends to a legal liability ,(g) 431. Bond With Surety to Indemnify the Sheriff on Levying An Execution. Know all men by these presents, that wo, A. B., of the town of , in the county of , and Stnte of , farmer, and 0. D., of the same place, merchant, are held and firmly bound unto Y. Z., sheriff of the county of , in the sum of dollars [inserting the penal sum], good and lawful money of the United States, to be paid to the said T. Z., his exec- utors, administrators, or assigns, for which payment well and truly to be made we do bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals ; dated this day of ,18 .* Whebeas the above-bounden A. B. did obtain judgment in the court oi against M. N. for the sum of dollars, whereupon execution has been issued, directed and delivered to the said Y. Z., sheriff of County, requiring him that of the goods and chattels of the said M. N. he should cause to be made the sum aforesaid. And whereas certain goods and chat- tels that appear to belong to the said M. N. are claimed byO. P. : Now the condition of the above obligation is such, that if the above-bounden A. B. shall well and truly save harmless, and indemnify the said Y. Z., and any and all persons aiding and assisting him in the premises, from all (h) Mott 1>. Hicks, 1 Cow., 513. Gee v. Roen, 4 Abbotts' Pr., 8 ; Gilbert v. (I) Scotti'. Tyler, 14 Barb., 202. Wyinan, 1 N. Y. (1 Comst.), 550; Aber- (m) Luddington ». Pulver, 6 Wend., iOi. deen v. Blaekmar, 6 Hill, B9A; Campbell (») Scott ». Tyler, 14 Barb., 202; Mc- * JoneB, 4 Wend., 306 ; Churchill v. Hunt, Gee ». Roen, 4 Abbotts' Pr., 8 ; Churchill 8 Den., 321. I) Hunt, 8 Den., 321. (p) Scott «. Tyler, 14 Barb., 202. (o) Scott v. Tyler, 14 Barb., 202; Mo- (?) Westervelt 1 Smith, 2 Duer, 449. 206 ABBOTTS' FORMS. Bonds of Indemnity. harm, trouble, damage, costs, suits, actions, judgments and executions that shall or may at any time arise, come or be brought against him, them or any of them, as well for the levying and making sale under and by virtue of such execution, of all or any goods and chattels which Jie or they shall or may judge to belong to the said M. IS., as well as in entering any shop, store, building or other premises, for the taking of any such goods and chattels, then this obligation is to be void; otherwise, to remain in full force. Sealed and delivered [ A. B. [Seal.] in presence of J 0. D. [Seal.] [ Witness's signature.'] 432. Bond With Surety, to Indemnify Maker of Note or Acceptor of Bill for Accommodation, from Loss Thereby. Know atx men by these presents, that we, A. B., of the town of , in the county of , and State of , farmer, and C. D., of, etc., are held and firmly bound unto Y. Z., of the town of , in the county of , and State of , merchant, in the sum of dollars, good and lawful money of the United States, to be paid to the said Y. Z., his ex- ecutors, administrators or assigns; for which payment, well and truly to be made, we do bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals ; dated this day of , 18 . * Wheeeas the said Y. Z. has, without consideration to him moving there- for, and solely for the accommodation of the above-bounden A. B., made and advanced to said A. B. his promissory note [or, accepted a bill of ex- change drawn by upon him] for dollars, bearing date the day of , 18 , and payable to [with interest], days after the date thereof: Now the condition of this obligation is such, that if the said above- bounden A. B. and 0. D., their executors or administrators, or any of them, shall well and truly pay the said sum of dollars, for the payment of which the said note [or, bill] is so given, and the interest thereof, on the day of payment therein mentioned, and in full discharge thereof, and indemnify and save harmless the said Y. Z., his executors and administrators, from and against any and all suits, actions, damages, costs, charges, and expenses, by reason of said note [or, hill], then this obligation is to be void ; otherwise, to remain in full force. A. B. [Seal] 0. D. [Seal] 433. Bond to Indemnify Partners Raving Indorsed for Accommodation, Against Liability Thereby. Know all men by these presents, that we, A. B., of the town of , in the county of , and State of , and 0. D., of the same place. merchants, are held and firmly bound unto W. X. and Y. Z., of the town of , in the county of , and State of , merchants, doing busi- BONDS. 207 Indemnity. ness under the name of Y. Z. & Co., in the sum of dollars, good and lawful money of the United States, to be paid to the said W. X. and Y. Z., or their survivors, executors, administrators or assigns, for which payment, well and truly to be made, we do bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals; dated this day of , 18 . * Whereas the said Y. Z. & Co. have, without consideration to them mov- ing therefor, and solely for the accommodation of the above-bounden A. B.. indorsed a promissory note made by [or, a bill of exchange drawn by upon ], for dollars, bearing date the day of , 18 , and payable to [with interest], days after the date thereof. Now the condition of the above obligation is such, that if the above- bounden A. B. and 0. D., their heirs, executors and administrators, or any of them, shall well and truly pay, or cause to be paid, the said sum of dollars, for the payment of which the said note [or, bill] is so given, and the interest thereof, according to the tenor thereof, and in full discharge thereof, and indemnify and save harmless the said W. X. and Y. Z., their executors and administrators, and each of them,(r) from and against any and all liability(s) by reason of said note [or, bill], as well as against any and all suits, actions, damages, costs, charges and expenses by reason thereof, then this obligation is to be void; otherwise, to remain in full force. A. B. [Seal] C. D. [Seal] 434. Bond by a Person Carrying on Business in the Name of Another, to Indemnify the Latter from Loss or Damage. [The penal clause may be as in the preceding form, 432 or 433 to the *, thence continuing thus :] Wiieekas the above-named Y. Z. has, at the request of the above-bounden A. B., consented that during the term of years 'from the date hereof, the said A. 13. may use the name of the said Y. Z. in carrying on the busi- ness of at , which he does and is to do for his own account and profit, and not for the account or profit of the said Y. Z., but only to pre- serve the said business to himself, the said Y. Z. having left the same ; pro- vided, however, that the said Y. Z. may be indemnified against all damage by reason of so carrying on the said business, or his using his name therein: Now the condition of this obligation is such, that if the said A. B., his heirs, executors and administrators, or any of them, shall well and truly indemnify and save harmless the said Y. Z., his executors and administra- tors, from all manner of suits, actions, damages, charges and expenses which he or they may sustain or be put to by reason of the said A. B.'s so ,(r) An agreement to indemnify partners (») This will render the obligors liable against suits against them extends to suits upon the bond in case the obligees become against one of them, in a placo where by duly charged as indorsers or acceptors of law it is not necessary that a suit be against the accommodation paper. nil the partners of a firm liable. Hill «. Packard, 5 Wend., ?7o. 208 ABBOTTS' FORMS. Bonds of Indemnity. using the name of the said Y. Z. as aforesaid, or by reason of any thing re- lating thereto, then the above obligation is to be void ; otherwise, to remain in full force. A. B. [Seal] 0. D. [Seal.] 435. Bond to Indemnify Tenant on Paying Rent, When Title is in Dispute. [The penal clause may be as in Form 432 or 433 to the *, continuing thus :] Wjleesas the a"bove-named A. B. claims from the said Y. Z. rent of cer- tain premises in [briefly designating them] — to wit, dollars, due on the day of , 18 [and quarterly thereafter] ; and one M. N. also claims some title to said premises, and to be of right entitled to said rents, or some part thereof: Now the condition of the above obligation is such; that if the above-bounden A. B. and 0. D., their heirs, executors and administrators, or any of them, shall well and truly, at all times, indemnify and save harmless the said Y. Z., his heirs, executors and administrators, from and against any and all actions, suits, damages, costs and expenses for or by reason thereof, then this obligation is to be void ; otherwise, to re- main in full force. A. B. [Seal] CD. [Seal] 436. The Same, Another Form; Requiring Recovery Against the Tenant. [The penal clause may be as in Form 432 or 433 to the *, thence continu- ing thus :] Whereas an action is now pending between the above-bounden A. B. and others touching the right, title, and interest to and in the [designating premises] now occupied by , situate, etc. ; and whereas the said Y. Z. has agreed to pay the rent of the said [house] to the said A.'B. — to wit, the sum of , yearly, as the same shall grow due : Now the condition of the above obligation is such, that if the above-bounden A . B. and 0. D., their heirs, executors and administrators, or any of them, shall well and truly pay, or cause to be paid, unto the said Y. Z., his executors, administrators or assigns, all such rent, sum and sums of money, charges and damages whatsoever, as shall by due proceedings in law be adjudged or decreed against him the said(i) Y. Z., his heirs, executors, administrators or assigns, aud all other costs and damages whatsoever which he or they shall incur(«) by reason of any action, suit or forfeiture whatsoever which shall or may happen to the said Y. Z., his heirs, executors, administrators or assigns, by reason of paying the said rent, or any part thereof, to the said A. B , his heirs, executors, administrators or assigns, then this obligation is to be void ; otherwise, to remain in full force. [Signatures and seals.] (t) A promise to indemnify against (») This will not extend to costs and what one may be obliged to pay after due damages to which the obligee may become proceedings at law had against him, and liable, but shall not have paid. Under an adjudged, includes prima faeit a judgment indemnity against "incurring" costs, pay- suffered by default, if done without collu- merit must be shown. Scott v. Tyler, 14 sion. Given v. Driggs, 1 Gai., 450; Stone Barb., 202. v. Hooker, 9 Cow., 154. BONDS. 209 Indemnity. 437. Bond to Indemnify Against Claim of Dower. [The penal clause may be as in Form 432 to the *, thence continuing thus :] Wherkas the above-bounden A. H., by indenture, under his hand and Beal, bearing date the day of , 18 , has granted, bargained and sold unto the above-named Y. Z. [here briefly designate the premises], with the appurtenances, to hold the same to him, his heirs and assigns, forever, as by the said indenture will more fully ^appear: Now the condition of the above obligation is such, that if the above-bounden A. B. and 0. D., their heirs, executors and administrators, or any of them, shall well and truly indemnify and save harmless the said Y. Z., his heirs, executors, ad- ministrators and assigns, from and against any and all dower or thirds which M. N, widow of N. N., shall or may claim in said premises or any part thereof, and from all actions and suits, whether groundless or other- wise,^) and all damages, costs and expenses by reason thereof, then this obligation is to be void; otherwise, to remain in full force. A. B. [Seal] 0. D. [Seal] 438. Bond to Indemnify On Paying a Lost Note or Bill. [If with surety, the penal clause will be as in Form 432; if without, as in Form 402 to the *, and thence continue thus :] Whereas a promissory note for dollars made by , or a bill of exchange drawn by , upon , bearing date at , the day of , and payable months after the date, to the order of , at [and indorsed by ], and which is now the property of the above-bounden A. B., has been lost [or, destroyed], and cannot now be produced by him ; and whereas at his request, and upon his promise to indemnify and save harmless the said Y. Z. in the premises, and to deliver np the said note, when found, to the said Y. Z., to be cancelled, the said Y. Z. has this day paid unto the said A. B. the sum of dollars, the receipt whereof the said A. R doth hereby acknowledge, in full satisfaction and discharge of the said note : Now the condition of the above obliga- tion is such, that if the above-bounden A. B. and C. D., their heirs, execu- tors and administrators, or any of them, shall well and truly indemnify and save harmless the said Y. Z., his executors and administrators, from and against the said note [or, bill], any and all damages, costs, charges and expenses [and all actions or suits, whether groundless or otherwise(jc)], by reason of said note [or, bill], and also deliver or cause to be delivered up the same, when and so soon as the same shall be found, to be cancelled, then this obligation is to be void ; otherwise, to remain in full force. A. B. [Seal] C. D. [Seal] (t>) As to the necessity of these words, 340 ; Luddington v. Pulver, 6 Wend., 404. compare Newburgh v. Gralatian, 4 Cow., (w) These words are often not inserted. 14 210 ABBOTTS' FORMS. Bonds of Indemnity. 439. Bond to Indemnify On Paying a Lost Bond. [If with surety, the penal clavse will he as in Form 432 ; if without, as in Form 402 tt the *, and thence continue thus:] Whereas the above-named Y. Z.. by his bond or obligation under seal, bearing date on or about the day of , 18 _ , became bound to the above-bounden A. B., in the penal sum of dollars, conditioned for the payment of the sum of dollars, unto the said A. B., his executors, administrators or assigns, on the day of , 18 [stating it accord- ing to the condition of the lost bond], as by the said bond, when produced, will more fully appear ; and whereas the said bond is alleged to be lost, so that the same cannot be found ; and whereas the said , at the request of the said 0. D., and on his promise of indemnity, has made him full satisfaction of and for the said bond : Now the condition of this obliga- tion is such, that if the above-bounden A. B., his heirs, executors or administrators, or any of them, shall, in case the said bond or obligation be found, or come to the hands or power of the said A. B., his heirs, executors or administrators, or any of them, or to the hands, custody, or power of any other person, deliver or cause the same to be delivered unto the said Y. Z., his executors or administrators, in order to be cancelled, and also shall and at all times indemnify and save harmless the said T. Z., his heirs, executors and administrators, from and against any and all suits, actions, damages, costs, charges and expenses by reason of said bondj or any of the money so paid, then this obligation is to be void; otherwise, to remain in full force. A. B. [Seal.] 0. D. [Seal.] 440. Bond to Indemnify a Surety in a Bond for Payment of Money. [If with surety, the penal clause will be as in Form 432 ; if without, as in Form 402 to the *, and thence continue thus :] Whereas the above-named T. Z., at the special instance and request of the above-bounden A. B., and for his debt, together with and as well as he, the said A. B., is held and firmly bound unto a certain M. N,, of , in and by an obligation bearing even date herewith, in the penalty of dollars, lawful money, as aforesaid, conditioned for the true payment oi [here recite the condition of the previous bond]: Now the condition of the above obligation is such, that if the above-bonnden A. B. and his heirs, executors and administrators, or any of them, shall well and truly pay, or cause to be paid, unto the said M. N., his executors, administra- tors, or assigns, the said sum of dollars, with interest thereon at the rate of per cent, per annum, as aforesaid, on the day of , [or, if the bond is made payable at several times, say, at the several times ' limited in the said recited condition], according to the true intent and meaning of said condition, and in full discharge and satisfaction of said obligation, and shall indemnify and save harmless the said Y. Z., his heirs, executors and administrators, from and against any and all suits, actions. BONDS. 211 Indemnity. damages, costs, charges, and expenses, by reason of said recited obligation, then this obligation is to be void ; otherwise, to remain in full force. A. B. [Seal.] 0. D. [Seal] ' 441. The Same; To a Surety in a Pond for Performance of Covenants. [If with surety, the penal clause will be as in Form 432; if without, as in Form 402 to the *, and thence continue thus :] Whereas the above-named Y. Z., at the special instance and request of the above bounden A. B., and for his debt, together with and as well as he, the said A. B., is held and firmly bound unto a certain M. N., of , in and by an obligation bearing even date herewith, in the penalty, of dollars, lawful money, as aforesaid, conditioned for [here recite the condition of the previous bond] : Now the condition of the above obligation is such, that if the above-bounden A. B. and his heirs, executors and adminis- trators, or any of them, shall well and truly perform the condition of the said recited bond, according to the true intent and meaning thereof, and shall indemnify and save harmless the said Y. Z., his heirs, executors and administrators, from and against any and all actions, suits, damages, costs, charges and expenses, by reason of said recited obligation, then this obligation is to be void; otherwise, to remain in full force. A. B. [Seal.] 0. D. [Seal.] 4A% Bond to Indemnify a Receiptor to the Sheriff.ix) [Penal clause as in preceding forms.] Wheeeas, M. K., sheriff of the county of , has levied on [here designate the goods], property of the above-bounden A. B., by virtue of an attachment [or, execution] against said A. B., issued out of the court, and has delivered the same to the said A. B., upon the said Y. Z. giving, at the request of said A. B., a receipt or obligation dated the day of , and conditioned [reciting the condition] : Now the condition of the above obligation is such, that if the above-bounden A. B. and C. D., their heirs, executors and administrators, or any of them, shall well and truly indemnify and save b.irmless the said Y. Z., his heirs, executors and administrators, from the giving of said receipt or obligation to said sheriff, then this obligation is to be void ; otherwise, to remain in full force. A. B. [Seal] 0. D. [Seal] V. Official Bonds. The conditions of official bonds are usually prescribed by the law which exacts them, and the form should follow the statute. For that reason but one full form is given here. The penal clause of an official bond may be drawn, in all cases, similarly to that given below, unless the statute otherwise directs. (a;) This form is sustained by Otis v. eeiptor's property in a suit against him as Blake, 6 Mass., 336. A levy ou the re- such, is a breach of the bond. 212 ABBOTTS' FORMS. Bonds of Officers. 443. General Term. Know all men by these presents, that we, A. B., of the town of , in the county of , and State of , and C. D., of the same place, merchant, and E. F., of the city of , and county of , farmer, are held arid firmly bound unto the People of the State of [or, the Com- monwealth of , or designating officers prescribed by law], in the sum of dollars [inserting the penal sum], good and lawful money ot tlie United States, to be paid to the said People of the State of [or, Commonwealth of , or, said, designating officers, and their successors], for which payment, well and truly to be made, we do bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealel with our seals; dated this day of , 18 . Whekeas the above bounden A. B. has been appointed [or, elected to the office of [giving the title of the office at full length]. Now the condi- tion of the above obligation is such, that if the said A. B. shall [following the language of the statute which prescribes the form of the condition], then the above obligation is to be void; otherwise, to remain in full force. Signed and sealed in j A. B. [Seal.] presence of , > C. D. [Seal.] M. N. ) E. F. [Seed.] 444. Bond of Sheriff ,{y) Know all men by these presents, that we, A. B., of the town of , in the county of , and State of New York, lately elected [or, appointed] sheriff of the said county, and A. B., of , in the county of , merchant, and 0. D., of, etc., are held and firmly bound unto the People of the State of New York, in the penal sum often thousand dollars [or, in the city and county of New York, twenty thousand dollars], good and lawful money of the United States, to be paid to the said People, for which pay- ment, well and truly to be made, we do bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals; dated this day of , 18 ' . Whekeas, the above-bounden A. B. hath been elected to the office ot sheriff of , at the general election [»?•, at a special election], held therein, on the day of : Now, therefohe, the condition of the above obligation is such, that if the said A. B. shall well and faithfully, in all things, perforin the duties and execute the office of sheriff of the said county of during his continuance in the said office, by virtue of the said election,(z) without fraud, deceit or oppression, then the above obliga- tion to be void ; else, to remain in full force. A. B. [Seal] In the presence of C. D. [Seal.] [Signature of Witness.] E. F. [Seal.] (y) This is according to the law of New fully discharge the duties of his office, but York. specifying no time, is to be intended for (s) A bond that an officer shall faith- his then existing term of office, and does BOUNTY LANDS. 213 In what Cases Granted. 445. Affidavit of the Sufficiency of Sureties, to be Indorsed On the Foregoing Bond. County of , ss. C. D and E. F. [or, C. D., one of] the sureties named in the within bond, being duly [severally] sworn, says [each for himself], that he is a free- holder within the State of New York, and worth the sum of thousand dollars over and above all debts whatsoever owing by him. Subscribed in my presences [Signatures of Sureties.] and sworn before me > this day of , 18 .) M. N., Clerk of the County of 446. Cleric's Certificate of Approval of Sureties. I, M. N„ clerk of the county of , do hereby certify, that I have examined the competency and do approve of the sureties, C. D. and E. P., in the within bond. [Signature.] [Date.] CHAPTER XVIII. BOUNTY LANDS. Uhdbr the acts of Congress granting Bounty Lands,(a) each of the follow- ing persons is entitled to bounty land to the amount of 160 acres (including what he may have previously received), provided he served a period not less than 14 days. Commissioned and non-commissioned officers, musicians, and privates, whether of the regulars, volunteers, rangers, or militia, who were regularly mustered into the service of the United States in any of the wars in which this country was engaged between the year 1790 and March 3, 1855. Commissioned and non-commi68ioned officers, seamen, ordinary seamen, flotilla men, marines, clerks, and landsmen in the navy in any of said wars. Militia, volunteers, and State troops of any State or Territory called into mil- itary service, and regularly mustered therein, and whose services have been paid by the United States. Wagon-masters and teamsters who have been employed, under the direction of competent authority, in time of war, in the transportation of military stores and supplies. Officers and soldiers of the Revolutionary War, and marines, seamen, and other persons in the naval service of the United States during that war. not continue for another term to which People v. Brush, 6 Wend., 454; Bartlettp. he is subsequently chosen. Bigelow v. Governor, 2 £ibb., 586. Bridge, S Mats., 275. Nor does it con- (a) These Acts are : Act of Feb. 11, tinue for the time during which he holds 1S47, 9 Stat, at L., 125 ; Act of Sept. 28, over until another is chosen. Mayor v. 1850, lb., 520 ; Act of March 22, 1852, 10 Horn, 2 Earring., 190. But it does ex- lb., 8 ; Aut of March 8, 1855, lb., 701 ; Act tend to duties imposed upon the officer of May 14, 1856, 11 li., 8; Act of June 8, by law, subsequent f> giving the bond. 1858, lb., 808. 214 ABBOTTS' FORMS. Bounty Land Claims. Chaplains who served with the army in the several wars of this country. Volunteers who served with the armed forces of the United States in any of the wars mentioned, subject to military orders, whether regularly mustered into the service of the United States or not. Each of the following is entitled to the same, without regard to the length of service, provided he was regularly mustered into service : Officers and soldiers who have actually been in battle in any of the wars in which this country was engaged prior to March 8, 1855. Those volunteers who served, at the invasion of Plattsburgh, in September,1814. The volunteers who served at the battle of Kings Mountain, in the Eevolu- tionary War. The volunteers who served at the battle of Niekojack against the confeder- ated savages of the South. The volunteers who served at the attack on Lewiston, in Delaware, by the British fleet, in the war of 1812. Where the service has been rendered by a substitute, he is the person en- titled to the benefit of these acts, and not his employer. In the event of the death of any person who, if living, would be entitled to a certificate or warrant as aforesaid, leaving a widow, or, if no widow, a minor child or children, such widow, or children, is entitled to the same. A subsequent marriage will not impair the right of any such widow, if she be a widow at the time of her application. Persons within the age of twenty- one years on the 3d day of March, 1855, are deemed minors within the mean- ing of the acts. To obtain the benefits of these acts, the claimant must make a declaration, under oath, substantially according to the forms hereto annexed. The signature of the applicant must be attested, and his or her personal identity established, by the affidavits of two witnesses, whose residence must be given, and whose credibility must be sustained by the certificate of the ma- gistrate before whcm the application is verified. All papers necessary to be verified by oath must be sworn to before, and cer- tified and authenticated by, proper public officers who have no interest in the result of the case, and are not concerned in its prosecution ; and every such public officer' must set forth in his certificate that he is not so interested or concerned. The official character and signature of the magistrate administering the oath (unless he is a notary, whose commission or a certified copy thereof, with proof of his signature, is on file in the Pension Office), must be certified by the clerk of the proper court of record of his county, under the seal of the court. Whenever the certificate of the officer who authenticates the signature of the magistrate is not written on the same sheet of paper which contains the sig- nature to be authenticated, the certificate must be attached to such paper by a piece of tape or ribbon, the ends of which must pass under the official seal so as to prevent any paper from being improperly attached to the certificate. To all official certificates by a notary public, of whose appointment general proof has been filed, as above suggested, should be added a brief reference to such proof on file, so as to insure against its being overlooked. All applications in behalf of minors must be made in their names, by their guardian, or next friend. Where there are several minors entiiled to the same gratuity, one may make the declaration. In addition to proof of service, as in other cases, applications by minors must be supported by satisfactory proof ot theii - being the lawful children of the soldier, on account of whose services their claim is made ; of his death ; of there being no widow surviving at the time of making the appli- cation ; of their ages ; and that they are the only surviving children of the deceased soldier who were under the age of twenty-one years on the 3d day of March, 1855. General reputation among those acquainted with the family, without any question of being the lawful children of the deceased soldier, will be received as evidence of their being such. Proof of the death of the soldier must be made, as in cases of applications by widows — see note (d) below. If B0UN1? LANDS. 215 How Applied for. there is any public record of the births of the children, a certificate of the same, properly authenticated, must be furnished. If there be none such, but a private or family record, it must be forwarded to the Office at Washington for inspection, with proof of its authenticity. It will be duly returned to the parties, if desired. But if no public or private record of the births exist* or can be procured, that fact must be shown by proper affidavit, and then other evidence will be received. Witnesses to prove the ages must state particularly their means of knowledge concerning the date of birth, and how they now fix the date. To avoid mistakes, the names and ages of all the surviving children of the deceased soldier should be shown by proper prooi, so that the officer may determine who of them are entitled to the land. Applications made by Indians must be authenticated according to the regulations to be prescribed by the Commissioners of Indian Affairs. If record evidence of the service, on account of which a claim is made, exists, it must be produced. But if there be none, parol evidence will be received instead. In such cases, the positive testimony of at least two witnesses who were in the same service, or in a situation to know the facts about which they testiiy, will be required to establish the service alleged. And the witnesses, in their affidavits, must state particularly the facts and circumstances of the ser- vice claimed, and their means of knowledge concerning the same. In every case documentary evidence of the service of the company to which the applicant claims to have belonged, will be required. In no case will parol evidence be admitted to vary or discredit the length of any service shown by the rolls. When claim is made for any allowance on account of mileage not shown by the rolls, a declaration must be made stating the place where the company or corps in which service is alleged was organ- ized — where it was mustered into the service of the United States — the distance between those two places — and by whose order the march was made. Also, the place where it was discharged from service, and the distance from thence to tbe place where it was organized. This statement must be supported by testimony of witnesses, or other proper proof. In all claims under these acts reference may be'made to any evidence on file in the office at Washington ; but in all such references, care must be taken to give a particular description of the case in which such evidence, is. Agents must, in all cases, have proper authority from the claimants in whose behalf they appear. No power of attorney will be recognized as sufficient, unless signed in the presence of two witnesses, and acknowledged before a duly quali- fied officer, whose authority is certified under seal. All additional evidence should be distinctly noted as such, with a particular description of the claim to which it relates. In all correspondence with the Pension Office, jn reference to claims for bounty land, parties should state the name of the applicant, the number of the application, and the act under which it was made. PAGE 447. Application for bounty land by one wno has never applied before 215 448. Oath to identity 216 449. Magistrate's certificate 216 450. Certificate of official character and signature 217 451. Application for a second warrant 217 452. Application by the widow of a deceased person who has not had a warrant. 217 453. Application by widow for a second warrant 218 447. Application for Bounty Land by One Who Eos Never Applied Before. State of , ) County of . j On this day of , a. d. one thousand eight hundred and , personally appeared before me, a justice of the peace [or other officer authorized to adminuter oaths for general purpose*], within and for the 216 ABBOTTS' FORMS. Application for Bounty Lands. county and State aforesaid, A. B., aged years, a resident of in the State of , who being duly sworn according to law, declares that * he is the identical A. B. * who was a in the company com- manded by Captain M. N"., in the Regiment of [here designate the Stale, or, if in the regular army, say, United States] infantry [or, cavalry], commanded by 0. P., in the war with Great Britain, declared by the United States, on the 18th day of June, 1812 [or designate other war specified in the statute], that he enlisted [or, volunteered, or, was drafted] at , on or about the day of , a. d. , for the term of , and con- tinued in actual service in said war for the term of fourteen days, and was honorably discharged at , on the day of , a. d. . [If discharged by reason of disability incurred in the service, add, by reason of a wound [here designate it fully], which he received [or, a disease, desig- nating it fully, which he contracted] on the day of , 18 , at , in the State of , while in the service aforesaid, and in the line of his duty.] t (b) He makes this declaration for the purpose of ob- taining the bounty land to which he may be entitled under the act approved March 3, 1855': He also declares that he has not received a warrant for bounty land under this or any other act of Congress, nor made any other application therefor. § [Signature of the claimant.] 448. Oath to Identity. (c) We, Q. R. and S. T., residents of , in the State of , upon our oaths, declare that the foregoing declaration was signed and acknowledged by A. B., in our presence, and that we know personally [or, we believe, from the appearance and statements of the applicant, setting forth any further grounds of belief the witnesses may have] that he is the identical person he represents himself to be. [Signatures of witnesses] 449. Magistrate's Certificate. (c) The foregoing declaration and affidavit were sworn to and subscribed be- fore me on the day and year above written ; and I certify that I know the (b) If he was discharged while in cap- The above forms are the proper ones, tivity, state the facts. where the identity of the applicant is (c) The best evidence of identity is the within the personal knowledge of the affidavits of the witnesses, or the certifi- magistrate. eates of the magistrates to the same, as a The certificate can be varied according to matter within their persona] knowledge, the circumstances, as there indicated. No Statements of belief merely will not be certificate will be deemed sufficient in any sufficient. If, however, the witnesses or case, unless the facta are certified to be magistral cannot state from personal within the personal knowledge of the knowledge, statements of belief, with the magistrate or other officer, who shall sign grounds of such belief, will be received, the certificate, or the names and places of If from acquaintance, the particulars of residence of the witnesses by whom the the acquaintance should be stated, so that facts are established be given, and their it may be seen how far they warrant the affidavits, properly authenticated, be ap- lelief slated. So if from other grounds, pended to the certificate. BOUNTY LANDS. 217 Application for Seoond Warrant. affiants to be credible persons; that the claimant is the person he repre- sents himself to be [or, that I believe, from the appearance and statements of the claimant, and from the facts that, here set forth the grounds of belief, that he is the person he represents himself to be], and that I have no in- terest, direct or indirect, in the proseoution of this claim. [Signature of magistrate.] 450. Certificate of Official Character and Signature. State op , | ^ County of • ) I, O. P., clerk of the Court, a court of record of said county, do hereby certify that M. N., the person subscribing the foregoing certificate and affidavit, and before whom the same was made, was, on the day of , 18 , therein mentioned, a notary public [or other officer] in and for said county, duly authorized to administer oaths and affirmations for general purposes, and that I am well acquainted with the handwriting of the said M. N., and verily believe that the name of M. N., subscribed to the said certificate, is his proper and genuine signature. In tbstimont wheeeop, I have hereunto set [Seal my hand, and affixed the seal of of said court, this day of court.] 18 . O. P., Clerk of Court. 451. Application for a Second Warrant. [As in Formiil, to thef, thence continuing thus:] And that he has heretofore made application for bounty land under the act of September 28, 1850 [or other act, as the case may be], and received a land-warrant, No. , for acres. He makes this declaration for the purpose of obtaining the additional bounty land to which he may be entitled under the act approved the 3d day of March, 1855. He also declares that he has never applied for nor re- ceived, under this or any other act of Congress, any bounty land-warrant except the one above mentioned. [Signature of the claimant.] [Add affidavit to identity and attestation by magistrate, as in Forms 448 and 449.] 452. Application by Widow of a Deceased Person Who Has Not Had a Land Warranted) [As in Form 447. inserting in lieu of the words between the * * the follow- ing :] She is the widow of 0. B., deceased [and in lieu of the words between (d) Applications by widows must be marriage of the claimant, to the soldier on supported hy satisfactory proof of the account of whose services her claim is 218 ABBOTTS' FORMS. Widow's Application for Bounty Land. the t and the § the following .-.] She farther states that she was married to the said in , on the day of , a. d. , hy one , a , and that her name hefore her said marriage was ; that her said husband died at , on the day of , a. d. , and that she is now a widow. She makes this declaration for the purpose of obtaining the bounty land to which she may be entitled under the " Act approved March 3, 1855." [Signature of claimant^ 453. Application by Widow for A Second Warrantee) [As in Form 447, inserting in lieu of the words between the * * the follow- ing :] she is the widow of 0. B., deceased [and in lieu of the words between the * and the § the following :] She further states that she was married to the said in , on the day of , a. d. , by one , a , and that her name before her said marriage was ; that her said husband died at , on the day of , a.d. , and that she is now a widow. . She further declares that she has heretofore made application for bounty land under the act approved September 28, 1850 [or other act, as the case may be], and obtained a land-warrant for , acres, No. , which she has legally disposed of, and it cannot now be returned. She makes this declaration for the purpose of obtaining the bounty land to which she may be entitled under the act approved March 3, 1855. [Signature of claimant.] made; of his death; and that the claim- married was never called in question by ant, at the time of making her application, their acquaintances. In no case will the was a widow — i. e., unmarried. If the mere statement of the witnesses that the marriage was in any State or county where claimant is the widow of the deceased, be any public records of marriages are kept, taken as evidence of the marriage ; but it should be proved by a duly certified the witnesses mnst state the facts and cir- copy of the record; or, if there is no such cumstances from which they derive their record, by the testimony of credible wit- knowledge or opinion that she is the nesses who were present at the marriage ; widow of the deceased, and where such testimony exists and is Witnesses to prove the death of the not produced, satisfactory reasons must soldier must state their means of know- be stated, under oath, why it is not pro- ledge concerning it, and, as nearly as they duced. If it is shown by affidavit that no can, the time and place of its occurrence, record, evidence, or testimony of eye- The evidence to piove the existing widow- witnesses can be procured, the claimant hood of the claimant must bo direct ; and may then produce the best other'evidence the statement of witnesses that the claim- in her power ; such as the testimony of ant is the party she represents herself to witnesses who were acquainted with her be, will not be received as satisfactory and her husband during his lifetime, proof of widowhood, knew them to live together as man and (e) If there be no evidence of marriage wife, and that they were reputed so to be, on file with the previous application, it- and that the fact of their having been must be proved as in the preceding note. CERTIFICATES. 219 Copies of .Records, etc. CHAPTEE XIX. CERTIFICATES. PAQ« 454. Certificate to copy of paper on file 219 455. Certificate to copy of record 219 456. Certificate of official character . v 219 454. Certificate to Copy of Paper on File. State of , County of , ) Clerk's Office, , 18 . \ * S " I do hereby oektify that I have compared the foregoing copy of a [nam- ing the instrument], [and of the indorsements thereupon], with the originals now remaining on file in this office, and that the same are correct transcripts therefrom, and of the whole of said originals. In testimony wheeeof, I have hereunto set my hand and [Official affixed my official seal, this day of , in the year seal.] one thousand eight hundred and [Signature and title of officer.] 455. Certificate to Copy of Record. State of New Yoke, ) Secretary's Office. ) I have compared the preceding with a certain indenture recorded in this office, in Book of Deeds, No. , page , etc., and do certify that the same is a correct transcript therefrom and of the whole of said indenture. [Here note, any alterations in the manuscript, if any there be — e. g., thus: one line interlined at the top of page 2, hefore making this certificate.] ' In testimony wheeeof, I have hereunto affixed the seal ot [Official this office, at the city of , the day of , in seal.] the year one thousand eight hundred and [Signature and title of officer.] State of Countv of 456. Certificate of Official Character. ' | as. I, M. N., clerk of the said county, do hereby certify that 0. P., the persor subscribing the foregoing [here designate the instrument], and before whom the same was taken, was, on the day of , 18 , therein mentioned, a judge of the Court of , a court of record of the said county of [or other officer, as the case may be], and that I am well acquainted with the 220 ABBOTTS' FORMS. Charter Parties. handwriting of the said 0. P., and verily believe that his name subscribed to the said certificate is his proper and genuine signature. [Attestation, signature, etc., as in preceding form.] [For a form of certificate of official character, including the due execution of the instrument according to the laws of the place, see chapter on Aoknow- ijsdgments, Forms 58 and 141.] CHAPTEE XX. CHARTER PARTIES. A charter party is a contract of affreightment in writing, by which the owner of a ship or other vessel lets the whole, or a part of her, to a merchant or other person, for the conveyance of goods, for a particular voyage, or period of time, in consideration of the payment of freight. The instrument ought to contain : 1. The name and tonnage of the vessel. 2. The name of the cap- tain. 3. The names of the letter to freight and the freighter. 4. The place and time agreed upon for the loading and discharge. 5. The price of the freight. 6 The demurrage or indemnity in case of delay. 7. Such other con- ditions as the parties may agree upon.(a) Important differences in reference to the rights and liabilities of the parties, not only as between themselves, but as respects consignors and consignees, and persons furnishing supplies and repairs, depend upon the question whether the charter party reserves to the owner the right of possession and of control, or divests him of it, and gives it to the freighter, so as to make the latter the owner pro hoc vice. In the absence of express words on this point, it is to be determined as a question of construction upon the whole instrument, whether the owner intended to part with possession.(i) Where the owner of a vessel charters her for a voyage, equips her himself, hiring and paying the crew, and furnishing them with provisions, and reserv- ing room for them and the provisions, the hirer is not owner of the vessel pro hoc vice, but the original ownership continues. Where, by the terms of the char- ter, the ship-owner appoints the master and mariners, and retains the manage- ment and control of the vessel, the charter is rather to be considered as a cov- enant to carry goods. Where, however, the whole management is given over to the freighter, it is more properly a hiring of the vessel for the voyage; and in such case the hirer is deemed owner pro hoc vice.{c) 457. Charter party reserving possession to the owner 221 458. Charter party giving possession to the hirer 223 (a) Abbott on Shipping, Part iii., ch. 1. Granch, 89 Mclntyre v. Bowne, 1 Johns. (b) Clarkson v. Kdes, 4 Cow., 470. 229 ; 1825, Clarkson v. Edes, 4 Cow., 470 (c Maoardier a Chesapeake Ins. Co., 8 Williams t. Johnson, 11 Barb., 501. CHARTER PARTIES. 221 Common Form. 457. Charter Party Reserving Poaession to the Owner. This charter party, made the day of , in the year one thou- sand eight hundred and ■ , between A. B , master and part owner [or, agent for the owners, or otherwise, as the fact may be] of the ship [or other vessel, naming it], of , of which is master, of the burden of tons or thereabouts,(7, and cases cited ; Mc- (ei Such a provision as this contem- Taggart v. Henry, 3 E. D. Smith, 890; plates not merely accommodations abso- Williams v. Johnson, ]1 Barb., 601. lutely necessary and literally indispen- 222 ABBOTTS' FORMS. Common Form of Charter Party. 4. And the party of the first part agrees to proceed with all dispatch from M. direct to K, and return to M., and there discharge the cargo aforesaid. {Sere may be inserted any special stipulations which may be agreed as to the use of the vessel — e. g., the following :] The party of the second part is to have the use of the cahin for passengers, and to carry, if desired, steer- age passengers on the hetween-deck, and to provide for the same himself. [Or thvs: It is further agreed, that the vessel takes one passenger, free of expense, he furnishing all his extra stores, etc. It is also further agreed, .that the vessel takes out, on deck, eight to ten horses, the party of the second part fitting up stalls, and furnishing every thing necessary for their accommodation.] And the said party of the second part, for and in consideration of the covenants and agreements to he kept and performed hy the said party of the first part, covenants and agrees, with the said party of the first part, to charter and hire tb,e said vessel as aforesaid, on the terms following — that is to say : 1. The said party of the second part engages to provide and furnish to the sirid vessel a full cargo of lawful merchandise, or at least sufficient for ballast. 2. The said party of the second part further engages to pay to the said party of the first part, or his agent, for the charter or freight of the said ves-el during the voyage aforesaid, in manner following — that is to say : [here net forth the terms agreed on — e. g., thus:] dollars, payable upon delivery of her cargo at M. The party of the first part is to pay all the expenses of the vessel, including port charges and stevedore bills. [Or thus: dollars per calendar month, and so in proportion for a less time, so long as the said vessel shall be continued in the aforesaid ser- vice, such payment to be made in the manner following — that is to say: Charter payable upon termination of the voyage, except so much as the captain may require for his disbursements in foreign ports, which is to be advanced on account of this charter, free of commissions. And the said party of the second part further engages to pay all the foreign port charges on the vessel during the aforesaid voyage, including lighterage, pilotage, and consuls' fees.] It is further agreed between the parties to this instrument, that the said party of the second part shall be allowed for the loading and discharging of the vessel at the respective ports aforesaid, lay days as follows — that is to say: dispatch loading and discharging at the port of , and [running^)] days at the port of ; and in case the vessel is detained, the said party of the second part agrees to pay to the said party of the first part, demurrage at the rate of dollars per day, day by day, for every day so detained, provided such detention shall happen by default of the said party of the second part, or his agent. (g) A provision for " running days" is, accident does not excuse him. Fields in eifect, a positive stipulation by the Chase, Sill <& D. Sitpp., 50 ; S. C, freighter that he will load and unload N. Y. Leg. Obs., 8. withiD the time mentioned. An inevitable CHARTER PARTIES. 223 Charter Party making Hirer the Owner for the Voyage. It is also further understood and agreed, that the cargo or cargoes shall be received and delivered alongside of the vessel, within reach of her tackles, or according to the customs and usages at the ports of loading and discharging. It is also further understood and agreed, that this charter shall com- mence^) when the vessel is ready to receive cargo at her place of loading^ and notice thereof is given to the party of the second part, or to his agent [and terminate on the return of the vessel and the discharge of her cargo at the last port of delivery]. It is also further understood and agreed, that the risks and responsibil- ities assumed by the party of the first part are solely and only those of his neglects or omissions, and of that of his servants. And that all and every other of the risks, hazards and contingencies of the elements and naviga- tion, of all and every class, character and description, are assumed and to be borne by the party of the second part.(i) [Here any special stipulations may he inserted, such as the following :] It is understood that the vessel is to carry out to N., tons measure- ment of assorted cargo, or more if she can, provided that she is not in any case to draw over feet of water, and to bring back hogsheads of sugar, or its equivalent, or more if she can, provided that she is not in any case to draw more than feet of water. To the true performance of all and every of the foregoing covenants and agreements, the said parties, eaoh to the other, do hereby bind themselves, their heirs, executors, administrators and assigns (especially the said party of the first part the said vessel, her freight, tackle and appurtenances; and the said party of the second part, the merchandise to be laden on board), each to the other in the penal sum of dollars. In witness whkreof. the said parties have hereunto interchangeably set their hands and seals, the day and year above written. Signed, sealed, and delivered) [Signatures and seals.] in the presence of ) [Signatures of witnesses.] 458. Charter Party Owing Possession to the Hirer. These articles of agreement made and entered into this day of , a.d. 18 , by and between- A. B., of , of the one part, Y. Z., of the city of , of the other part, witnesseth: the said party of the first part has this day chartered and hired unto the said party of the second part the steamboat , of [dengnating her port], and of the burden of tons, or thereabouts, with all the appurtenances, cables, anchors, chains, etc., which belong to said steamboat, for the term of months, from the day of , to be delivered at the port of (A) If the charter party fixes a day for the clear intent of the parties. Weisaer ♦he vessel to be in readiness, it may be v. Maitland, 8 Sand/., 818. regarded as a condition precedent, if upon (i) As to such a clause, see note ( ;), the whole instrument such appears to be infra. 224 ABBOTTS' FORMS. Chattel Mortgages. But in case the said A. B. shall deliver the said boat at any time before said day, the said term shall take date from the time of delivery. For the use of said steamboat, said Y. Z. agrees and binds himself to pay to the said A. B dollars, the payments to be made as follows: dollars on the delivery of said boat ; dollars on the day of , and dollars at the expiration of said months. And it is further understood, that the said Y. Z. shall be at all the expense of manning and furnishing said boat for the time above stated, and shall return the same to the said A. B. at the port of , in as good condition as it now is, with the exception of the ordinary use and wear;(j) and if the eaid Y. Z. shall at any time refuse to fulfil on his part, the said A. B. shall have the right to take possession of the said boat wherever the same be found. In witness [etc., as in preceding form]. CHAPTEE XXI. CHATTEL MORTGAGES. A chattel mortgage is a transfer of the title to chattels, with or without pos- session, as security for a debt or liability, and upon condition that the transfer shall be void if the debt or liability be paid or discharged. If the debt is not paid at the time appointed, the mortgagee becomes absolute owner, and has a right to take the chattels into Ms own possession if they are not in his possession already, and his creditors have likewise a right to levy on the chattels as his property. But the mortgagor has a right to redeem them from the mortgagee, and this right the mortgagee can only cut off by a sale, applying the proceeds to payment of the debt.(a). But he is not bound to sell, unless the mortgage requires him to do so ; he may keep the goods, as owner, subject only to the mortgagee's right to redeem.(6) And if they are of sufficient value to pay the debt, his so doing may be regarded as payment. (c) Description of debt and of chattels. — The true amount of the indebtedness or liability to be secured, should be stated in a chattel mortgage ; and the goods should be described with sufficient precision to identify them. The goods may be described in a schedule annexed and referred to in the mortgage, and such a schedule is regarded as a part of the mortgage, and both papers are construed together.(d) The goods may be designated in general terms in the mortgage, and an intention to make and annex a schedule subsequently may (j) Under such a provision as this, the ity of the charterer. Ames v. Belden, 17 hirer of the vessel is not liable as an in- Barb., 513. surer against the perils of the sea or risks (a) 2 Story's Eq. J., 1030; i Kent's of navigation ; and is not answerable for Com., 138. In some States, the time for the loss of the boat in «. violent storm, redeeming after default is limited by during the continuance of the charter, statute. without his fault. The clause expresses (6) Charter v. Stevens, 8 Den., 83 j simply what the law would have implied Buvdick v. MoVanner, 2 lb., 170. from the nature of the contract, and there- (c) Case v. Bonghton, 11 Wend,., 106. fore does not vary the common-law liabil- (d) Edgell v. Hart, 9 N. Y. (5 Held.), 218. CHATTEL MORTGAGES. 225 General Principles. be expressed. If the schedule contain the only designation of the goods, it is essen tial that it be so annexed, or the instrument is not complete or effectual. (e) But if the goods are designated, and an intention to annex a schedule is expressed, the omission to fulfil the intention is not necessarily fatal, although it may be a suspicious circumstance indicating fraud as against other creditors.(/) A chattel mortgage cannot be made effectually to cover property not in ex- istence or which the mortgagor may afterwards acquire, so as to secure it against his other creditors.(gr) It may be made to secure future advances as well as existing indebtedness, if the intent is expressed in the instrument ;(A) and it will be effectual to the extent of such advances as are actually made in' good faith, before any other creditor or purchaser acquires » lien or title to the property. Possession. — It has long been a disputed question whether, to constitute a valid mortgage as against other creditors, the mortgagee must take possession of the goods at the time of receiving the mortgage. The rule now generally accepted is, that if the goods, at the time of the mortgage, are in the possession or under the control of the mortgagor, there must be an immediate and con- tinued change of possession ; otherwise the transaction will be presumed to be fraudulent as against his creditors or subsequent purchasers in good faith ; and tile mortgagee or those claiming under him, must, in order to sustain the mortgage, prove affirmatively that it was made in good faith and without any intent to defraud.(i) If the mortgage contains no clause as to the right of possession, the mortga- gee is entitled, by virtue of the title it vests in him, to take immediate posses- sion without any default on the part of the mortgagor. (j) Therefore, where the mortgagor is to retain possession until default, as may safely be allowed if good faith can be proved, it is usual to insert a clause securing to him the right to do so. This should be in express terms : a clause authorizing the mortgagee to take possession, in certain circumstances, is not regarded as im- pliedly excluding his right to do so in other circumstances.(ft) But the mortgagor cannot reserve power to Bell the property, unless it be stipulated that he is to apply the proceeds in payment of the mortgage ; for to reserve the right to sell for his own benefit would be to attempt to create a trust for his own benefit, contrary to the statute of fraudulent conveyances.(Z) So, where the mortgage is of a stock of goods in a store, if any such reservation is inserted, the mortgagor should be required by it to sell for cash, and apply the proceeds in payment of the debt. For the same reason, if the mortgage of a stock of goods in a store is expressed to include all others which may be brought in to replace goods sold, this implied power to sell should be accom- panied by the same restrictions.(m) Danger clause. — Where a clause giving the mortgagee the right to retain possession until default, is inserted, it is usual to add a qualification, that if the goods should be removed or disposed of, or a removal or disposal attempted, or if for other reasons the mortgagee's security should become inadequate, he may thereupon take possession. This is termed the danger clause. Demand. — If a chattel mortgage specifies no time of payment, and does not expressly require a demand, demand is not necessary .(n) If it is payable on demand, a demand, though necessary to put the mortgagor in default, is not (e) Moir v. Brown, 14 Barb., 39. (J) Mattison -o. Bancus, 5 N. Y. (1 (/) Keyes v. Brush, 2 Paige, 311 ; Van Zrnist.), 295. Heusen v. Radcliff, 17 N. Y., 580. (h) Rich v. Milk, 20 Barb., 616. (g) Gardner v. McEwen, 19 N. Y., 128. (2) Ford v. Williams, 24 N. Y., 859 ; (A) Walker v. Snediker, Hoffm., 145 ; rfarston v. Vultee, 12 Abbotts' Pi:, 148; TruKOOtts. King, 6 N. Y. (2 Seld.), 147. JEdgell ». Hart, 9 A*. Y. (5 Seld.), 213. (i) Bissell v. Hopkins, 3 Cow., 166; (m) Edgell v. Hart, 9 N. Y. (5 Seld.), Smith v. Acker, 23 Wend,., 658 ; Thompson 213 ; Spies v. Boyd, 1 E. D. Smith, 445. v. Blauchard, 4 N. Y. (4 Cormt.), 303. (») Howland v. Willett, 8 Sand/., 607. 15 226 ABBOTTS' FORMS. Chattel Mortgages. necessary to enable him to maintain his title as t gainst third persons unlaw- fully interfering with the property.(o) Sale. — If a chattel mortgage contains no provision requiring a sale, the mortgagee may sell or not as lie chooses ; and a sale may be without judicial proceedings, reasonable notice being given. If the goods can be sold in separate parcels, no more should be sold than is necessary to pay the debt and expenses. fining v. Stearns, 9 (o Smith), 128. 230 ABBOTTS' FOEMS. Chattel Mortgages. in payment of the said sum above mentioned, or any part thereof, or of the interest thereon, on any day when the same ought to be paid [may insert ij desired, then the whole sum shall at the election of the party of the second part become immediately due and payable ; and] * it shall be lawful for, and the said party of the first part does hereby authorize and empower the said party of the second part, his executors, administrators and assigns, with" the aid and assistance of any person or persons, to enter and come into and upon the dwelling-house and premises of the said party of the first part, and such other place or places as the said goods and chattels are or maybe held or placed, and take and carry away the said goods and chattels, to sell and dispose of the same, or so much as shall be necessary, for the best price they can obtain, and out Of the money to retain and pay the said sum above-mentioned, with the interest and all expenses thereon, rendering the overplus (if any) unto the said party of the first part, his executors, administrators and assigns. And until default be made in the payment of the aforesaid sum of money [or some part thereof or interest thereon], the said party of the first part is to remain and continue in quiet and peaceable possession of the said goods and chattels, and the full and free enjoyment of the same [here may insert danger clause from Form 461, viz., the words between the * *, or may proceed thus :] unless the said party of the second part) his executors, administrators or assigns, shall sooner choose to demand the same; and until such demand be made, the possession of the said party of the first part shall be deemed the possession of an agent or servant, for the sole benefit and advantage of his principal, the said party of the second part. In witness whereof, I have hereunto set my hand and seal, the day of , 18 . Signed, sealed and delivered ) [Signature and seaV in the presence of ) [Signature of witness.] 463. Schedule Annexed to the Foregoing. Schedule of all the furniture and household goods mentioned in, and con veyed by, the annexed chattel mortgage. One rosewood sofa. Six do. chairs. One do. arm-chair. [Thus enumerating all the goods.] Annexed and signed, this day of , 18 . [Signature of witness.] [Signature of party.] 464. The Same ; For a Sum of Money at a Future Day, With Interest Periodically Meanwhile. [Asin Form 462, substituting for the wo? Is between the 1 1 the following :] nnto the said party of the second part, his executors, administrators or assigns, the just and. full sum of dollars [stating the whole principal secured], on the day of , which will be in the year one thousand CHATTEL MORTGAGES. 231 Stipulations as to Mode of Payment. eight hundred and , with interest thereon from the date hereof [or, from the day cf , 18 ], at the rate of per cent, per annum [or, with legal interest thereon], payable semi-annually [or, quarterly], on the day of , and [designating the montlis intended] in each year, until the whole of said principal sum he paid. 465. The Same ; For Payment in Equal Annual Instalments, With Interest Annually on What Remains Unpaid. [As in Form 462, substituting for the words between the 1 1 the following :] unto the said party of the second part, his executors, administrators or assigns, the just and full sum of " dollars [stating the whole principal secured], in equal annual payments, from the date hereof [or. com- mencing on the day of , 18 ], with interest thereon at the rate of per cent, per annum [or, with legal interest thereon], payable annually with such instalments [or, semi-annually, or, quarterly, on the days of , naming the months for payment of interest, in each year], 466. The Same; For Payment in Unequal Instalments, With Interest. [As in. Form 462, substituting for the words between the 1 1 the following :] unto the said party of the second part, his executors, administrators or assigns, the just and full sum of dollars [stating the whole principal secured], in manner following — that is to say, the sum of dollars on the day of next; the sum of dollars on the day of , 18 ; and the remaining sum of dollars in from the said last- mentioned date, together with the interest at the rate of per cent, per annum [or, with legal interest on the whole sum remaining unpaid, at the time of each payment]. 467. The Same ; For Payment in Instalments, With Interest on Each Instal- ment as It Falls Due. [As in Form 462, substituting for the words between the 1 1 the following :] unto the said party of the second part, his executors, administrators or as- signs, the just and full sum of dollars [stating the whole principal se- cured], with interest at the rate of per cent, per annum [or, with legal interest], said principal to be paid in equal annual instalments each, with the interest on such instalment, on the day of in each year. 468. Chattel Mortgage to Secure a Note. [As in Form 462, substituting for the words between the * * the following :] Upon condition, however, that if the said party of the first part shall well and truly pay to the said party of the second part, his executors, administra- tors and assigns, a certain promissory note, made by , for dol- lars, bearing date the day of ,18 , and payable afterdate to the order of [or may say, his pr missory note, of which the follow- '232 ABBOTTS' FOEMS. Chattel Mortgage to Secure Notes. mg is a copy, setting it forth], according to the tenor thereof, then this conveyance shall he void ; otherwise, to remain in full force. And in case default shall be made in payment of said note, 469. Chattel Mortgage to Secure An Indorser. [As in Form 462, substituting for the words between the * * the following :] Upon condition, however, that if the said party of the first part shall well and truly pay a certain promissory note, made by for dol- lars, bearing date the day of ,18 , and payable afterdate to the order of , and indorsed by the party of the second part [or may say, his promissory note, indorsed by the party of the second part, of which the following is a copy, setting it forth], according to the tenor thereof, then this conveyance shall be void ; otherwise, to remain in full force. And in case default shall he made in payment of said note, 470. Chattel Mortgage to Secure Payment of Numerous Notes, and Indem- nity Against Certain Debts of the Mortgagee Assumed by the Mortgagor. [As in. Form 462 to the first *, continuing thus:] Upon condition, however, that the said parties of the first part shall well and truly pay unto the said party of the second part, his executors, admin- istrators or assigns, the just and full sum of dollars and cents, with interest, being the amount of promissory notes made by them, and described as follows, each bearing date the day of , 18 , payable as follows : one note for dollars payable at months from date; and one for dollars, payable at months from date [and so on]. And upon the further condition, that if the said parties of the first part will well and truly indemnify and save harmless the said party of the second part of, from and against all of the notes remaining unpaid, which were given by said party of the second part to M. N. & Oo. on the purchase of , which notes are particularly enumerated in Schedule B hereto annexed; and also against all of the notes and debts, obligations or liabili- ties mentioned in Schedules C and D hereto annexed, being debts of the party of the second part, which have been assumed by said party of the first part, then this conveyance shall be void; otherwise, to remain in full force. And the said parties of the first part, for themselves, their executors, ad- ministrators and assigns, do covenant, promise and agree, to and with the said party of the second part, his executors, administrators and assigns, that in case default shall be made in the payment of either of said notes hereinbefore mentioned, given by said parties of the first part to the said party of the second part, and the same shall remain due and unpaid for the space of days thereafter, then the sum remaining unpaid upon all of said notes may, at the option of the said party of the second part, his exec- utors, administrators or assigns, be considered due and payable immediately; and in case either of said notes shall so remain unpaid for the space of daye or in case any recovery shall be had against said party of the second CHATTEL MORTGAGES. 233 To Secure against Contingent Liability. part, for or by reason of any note or notes, or debts mentioned in Schedules B, 0, and D; then in that case it shall immediately thereupon be lawful for, and the said parties of the first part hereby authorize and empower the said party of the second part, his executors, administrators or assigns, with the aid or assistance of any person or persons, to enter the store, stable, dwell- ing-house and other premises, and such other place or places as the said goods, chattels and property are or may be placed, and take and carry away the said goods, chattels and property, and to sell and dispose of the same for the best price or prices he can obtain fa- the same, and out of the money arising therefrom to retain, take up and j ay the amount then re- maining unpaid on said notes, whether the said notes shall have matured or not. and all charges touching the same, and also all moneys which may be recovered against him, the said party of the second part, for or on account of any of the notes or debts mentioned in either of the schedules to this mortgage, or any liability or charges he may incur on account of the same, or any part thereof, and also the expenses of such sale, and then, after retaining sufficient in his hands to pay off and discharge any of the said debts or notes mentioned in either of the schedules which may remain unpaid, and applying the said moneys thereto, rendering the overplus (if any) unto the said parties of the first part, or to their executors, administrators or assigns ; and in case of such sale and disposition of said goods, chattels and property, it shall and may be lawful for the said party of the second part to sell and dispose of the said property, goods and chat- tels, together or separately, as he may prefer. And until default he made in the payment of either of the said notes, and the same shall remain unpaid for ten days, or in any of the stipulations hereinbefore set forth on the part of the parties of the first part, the said parties of the first part shall remain and continue in the quiet and peaceable possession of the said goods and chattels and property, and the full and free enjoyment of the same. In witness whebeof, the parties of the first part have hereunto set their hands and seals, this day of , 18 . In presence of [Signatures and seals.'] [Signature of witness.] 471. Chattel Mortgage to Secure a Surety in a Lease. [As in Form 462, substituting for the words between the * * the following :] Upon condition, however, that if the said party of the first part, his ex- ecutors, administrators and assigns, shall well and truly pay the rent to ac- crue on a lease made by M. N. to the said party of the first part, bearing date the day of ,18 [and shall perform all the covenants on his part therein contained], and indemnify and save harmless the said party of the second part from and against all damage, costs and expenses by reason of his having become a surety thereon, then this conveyance shall be void ; otherwise, to remain in full force. And in case default shall be made in such payment [and performance 1 23i ABBOTTS' FOEMS. Cliattel Mortgages. 472. Chattel Mortgage to Secure future Advances. [As in Form 462, substituting for the words between the * * the following:] Whebeas the party of the first part is indebted to the party of the second part for , in the sum of [as appeared by the account between the parties], and said party of the second part has agreed to make further advances of money and materials to enable the said party of the second part to complete his factory at , and commence to operate the same : Now these presents are upon the condition, that if the party of the first part, his executors, administrators and assigns, shall well and truly pay, or cause to be paid, to the party of the second part, his executors, administra- tors or assigns, upon demand [or otherwise, as agreed], all the sums due and so to become due to the party of the second part, then this conveyance shall be void ; otherwise, to remain in full force. And in case any default shall be made therein, 473. Chattel Mortgage, By a Corporation, to Trustees, in Trust for Its Bondholders. This indentube, made the day of , a. d. one thousand eight hun- dred and , between the Company, of , formed under and pursu- ant to an act of the Legislature of the State of , entitled " An Act to provide for the formation of companies," passed ,18 , by articles of association duly made, executed and filed on the day of , 18 , in the office of the clerk of , parties of the first part, and "W. V., Vf. X. and Y. Z., trustees, as hereinafter mentioned, of the second part, wrr- nesskth as follows: That the parties of the first part, in order to payoff and discharge certain debts and obligations incurred in the formation and operating of said company, and to enable them to conduct, operate and coutinue the business of said company, and also in pursuance of the res- olutions of said company, passed the day of , 18 , a copy of which is hereto annexed, marked " A," and forming part of this indenture, have made and issued their several bonds, or obligations, all having even date herewith, by each of which said bonds they acknowledge themselves indebted to , or bearer, in the sum of dollars, lawful money of the United States of America, to the amount of dollars, and num- bering frum one to , inclusive; each of said bonds being made pay- able to the said parties of the second part, or bearer, and each of said bonds being for the sum of dollars, and payable at the said company's office in , on or before the day of , one thousand eight hundred and , with interest thereon, at the rate of per centum per annum, payable semi- annually, at their office, in , on the days of and in each year, until the whole of the said principal is paid. Now this indenture WITNESSETH, that the said parties of the first part, in order to secure the payment of the said several bonds hereinbefore men- tioned, as they respectively fall due in the hands of the bona-ftde holders thereof, and the interest thereon, and in consideration of the sum of oae CHATTEL MORTGAGES. 235 To Secure Corporation Bonds. dollar, to them in hand paid by the said parties of the second part, the re- ceipt whereof is hereby acknowledged, have granted, bargained, sold, as- signed, released, conveyed and confirmed, and by these presents do grant, bargain, sell, assign, release, convey and confirm, transfer and set over unto the said parties of the second part, trustees, as aforesaid, or the sur- vivor or survivors of them, and their successors or assigns, the leases, fran- chises, licenses and articles of personal property, goods, chattels, horses, stages, etc., etc., as follows: 1 . All their right, title, interest and claim in and to a certain grant or lease, dated on the day of , a. d 18 , and made by M. K, ot , of the first part, to O. P., and which has been duly assigned to the said company, covering six lots of ground on Avenue and Eleventh- street, in the Eleventh Ward of said city, and recorded in the register's office of , in Liber of Conveyances, page , the day of , 18 , together with the appurtenances, and all the rights and privileges, interests which the said parties of the first part have, or hold, in or to the said lease, and the lands and premises described therein, and the buildings, sheds, and improvements thereon erected. 2. And also, all the franchises, licenses, rights and privileges of run- ning and operating their , as now owned and possessed by them, and conferred upon them by the authorities of , or otherwise. 3. And also, all the fixtures, implements, goods, wares and mer- chandise, and all other articles of personal property, now belonging to, and in the possession of said company in , and more particularly named and described in the schedule hereto annexed, marked B, and which said schedule forms part of this indenture : To have and to huld the same to the said parties of the second part, the survivor or survivors, or their suc- cessors or assigns, forever. And it is hereby further mutually declared, granted and agreed by the said company, parties of the first part, and the said parties of the second part, trustees, representing the rights and inter- ests in the securities of the parties taking or holding the said bonds or ob- ligations, in the form and manner following — viz., that if the said parties of the first part shall well and faithfully pay the said principal sum of dollars, on the day when the same is made payable by this indenture, as above mentioned, according to the true intent and meaning thereof, with the interest due thereon, and also, the interest which may become due thereon, on the days when the same is made payable, as herein mentioned, or shall deliver up, cancelled, to the said parties of the second part all of the said bonds mentioned herein, then these presents shall cease and deter- mine ; but if default shall be made by said parties of the first part, in the payment of the said bonds or obligations, at the time they shall fall due, according to the true intent and meaning thereof, or they shallfail to pay the interest at the time set forth herein, tlien it shall be lawful fur the said parties of the second part, or the survivor or survivors of them, their suc- cessors and assigns, and it shall be their duty, and they are hereby author- ized and empowered, either in person or by attorney, or by agents, to enter into, and upon, the lands and premises hereby granted, or intended so to be, and take possession thereof, and also to take possession of the said 236 ABBOTTS' FORMS. Chattel Mortgages. goods, chattels and other articles mentioned in the said annexed schedule^ and also the licenses, franchises, etc., of the said company, and to sell or dispose of the same, or any part thereof, at public auction, according to the. statute in such cases made and provided ; and also to sell the said articles of personal property mentioned in the annexed schedule, at public auction, at the best price they can obtain for the same, and out of the proceeds arising from such sale to defray the expenses of such sale, and their own just and lawful charges, and then pay over the proceeds to, and amongst the parties holding the said bonds or obligations, for the said sum of dollars, so far as may be necessary to pay the amount then due and in arrear upon the same, and the balance of the proceeds (if any there be) to be paid over to the said parties of the first part, or their assigns. And it is further agreed by the said parties of the first part, that policies of insurance shall be effected by the said parties of the first part upon the said buildings, implements, goods, chattels and personal property mentioned in the schedule, against loss or damage by fire, to the amount of at least dollars, and such insurances shall be continued from time to time, and the policies assigned and placed in the hands of the said parties of the second part, as an additional security for the payment of the said bonds or obliga- tions. In witness whereof, the, said Company, parties of the [Corporate first part, have hereunto set their corporate seal, and the seal.] hands of its president, treasurer and secretary, the day and year first above written. In presence of [Signatures and titles of officers.] [Signature of witness.] 474. Condition in a Mortgage of Stock, That the Mortgagee Shall Not Sell Until Default. And it is aeso pbovided, that until default shall be made, in payment of the said sum of dollars and interest, or some part thereof, the said Y. Z., his executors or administrators, will not sell or dispose of the said shares of stock in.the said company so transferred to him as aforesaid, and will, from time to time, pay over unto the said A. B., his executors, or ad- ministrators or assigns, any dividend or dividends, which he, the said Y. Z., his executors or administrators, shall, in the mean time, have received on account thereof. 475. Unqualified Reservation of Right of Possession Until Default. And it is agkeed, between the said parties, that until default shall be made in payment of the said sum of dollars and interest, the said A B. and his assigns may hold, enjoy and use the goods above mortgaged, as aforesaid, without the hindrance or interruption of the said Y. Z., or his assigns CHATTEL MORTGAGES. 237 Stipulations as to Sale. Mortgage of Vessel. 476. Stipulation Requiring a Sale to be Made. Bdt if default shall be made in the payment of the principal or inter- est above mentioned, or any part thereof, then the said party of the second part, and his assigns, are hereby required to sell the goods, chattels and property, above granted, by public auction, or so much as shall be neces- sary, for the best price they can obtain, and out of the money to retain and pay the said sum above mentioned, with the interest and all expenses thereon, rendering the overplus (if any) unto the said party of the first part, his executors, administrators and assigns. 477. Stipulation Regulating the Mode of Sale. Said sale to take place at , after giving at least days' notice thereof, by posting up written notices in three different public places in the town, and by advertising once in the . And I hereby further author- ize the person conducting said sale, to adjourn, if, in his opinion, necessary, the same, from time to time, until said property be sold, and to give a bill of sale to the purchaser thereof, which shall be conclusive as to the regu- larity of all the proceedings connected herewith, and convey absolutely all of my right and title therein. 478. Mortgage of a Vessel.(y) To all to whom these presents shall come, greeting : Know ye, that we, A. B. (|ths), and 0. D. ('ths), owners of the bark or vessel called the Mary, of , of the burden of tons, or there- abouts, for and in consideration of the sum of dollars, lawful money of the United States of America, to us in hand paid before the sealing and delivery of these presents by W. X. and Y. Z., the receipt whereof we do hereby acknowledge, and are therewith fully satisfied, contented and paid, have bargained and sold, and by these presents do bargain and sell unto the said W. X. and Y. Z., their executors, administrators and assigns, all of the 6aid bark or ve-sel, together with all the masts, bowsprit, sails, boats, an- chors, cables and all other necessaries(2) thereunto appertaining and be- longing : To have and to hold the said bark Mary, and appurtenances thereunto belonging, unto them, the said W. X. and Y. Z., their executors, administrators and assigns, to the sole and only proper use, benefit and be- hoof of them, the said W. X. and Y. Z., their executors, administrators and assigns, forever. And we, the said A. B. and C. D., have, and by these presents do promise, covenant and agree, for ourselves, our heirs, executors and administrators, to and with the said W. X. and Y. Z., their heirs, ex- ecutors, administrators and assigns, to warrant and defend the said bark Mary, and all the other before-mentioned appurtenances, against all and every person and persons whomsoever. (y) For a hypothecation on bottomry, any things not clearly included in such a fee Bonds. general term, lluy should be expressly (s) If it is intended to give a lien on mentioned. 238 ABBOTTS' FORMS. Acknowledgment of Mortgage. Statement of Benewal. Whekeas, A. B. and 0. D. are justly indebted to W. X. and T. Z., for certain sums of money advanced to them by said W. X. and Y. Z., on account of said bark Mary, which the account between the parties shows, and may also re- quire further advances than the original debt, and may also become still further indebted for expenses and charges paid or incurred for them : STow the condition of these, presents is such, that if the said A. B. and C. D. will, on demand, pay all the sums due and to become due to the said W. X. and T. Z., and shall, in all respects, comply with the terms and conditions hereof, then this conveyance shall be void; otherwise, to remain in full force. The said "W. X. and T. Z. are not to be liable or responsible, in any way, for the debts or liabilities of said vessel. In witness whereof, the said A. B. and C. D. have hereunto set their hands and seals, this day of , 18 . In presence of Signatures and seals.] [Signature of witness.] 479. Acknowledgment of a Chattel Mortgage. State ob 1 , ) County of . ) Be it known, that on the day of , one thousand eight hundred and , before me, M~. N\, a notary public for the State of , duly commissioned and sworn, dwelling in the city of , came A. B. and C. D., to me well known to be the individuals described in and who ex- ecuted the foregoing instrument, and severally acknowledged that they had executed the same as and for their voluntary act and deed. Witness my hand and official seal, the day and year above written. [Seal.] [Signature and title.] 480. Annual Statement of Amount Claimed.(a) Statement filed by Y, Z., the mortgagee in the mortgage of which the annexed is a copy : I, Y. Z., the mortgagee mentioned in the mortgage of which the annexed [or, within] is a true copy, do hereby certify that the sum of dollars and interest thereon from the day of , 18 , is still due on said mortgage ; which sum constitutes the amount of my interest in the prop- erty therein mentioned and described. Dated , the day of ,'18. [Signature of Mortgagee.] 481. The Same; Where the Mortgage is Claimed as Security for Contin- gent or Unliquidated Demands. Statement filed by Y. Z., the mortgagee in the mortgage of which the annexed is a true copy : (a) It is not a sufficient statement to in- There must be a statemeut exhibiting the dorse on the mortgage already on file, that interest of the mortgagee. Fitch t. Hum it is refiled and renewed, with the date, plirey, 1 Den., 163. CHATTEL MORTGAGES. 239 Notice of Sale. I, Y. Z., the mortgagee named in the mortgage of which the annexed 'or, within] is a true copy, do hereby certify that the following notes, men- tioned in said mortgage, all dated the day of , 18 , are wholly unpaid — to wit [enumerating them]. And I claim the said property, by virtue, of said mortgage, to the amount of said unpaid notes and interest as aforesaid. And I further claim the said property as security to me against any liability for or on account of my having indorsed the note of therein mentioned, which note is still unpaid; and the said unpaid notes of and interest, and security against my indorsement of said note of , constitute my interest in the property described in said mortgage. Dated , the day of , 18. [Signature of Mortgagee.] 482. Notice of Sale Under Mortgage. By virtue of a chattel mortgage executed by A. B. to Y. Z., dated the day of , 18 , and filed in the office of the county clerk of the county of [or, the town clerk of the town of , or, the register of the city and county of New York], on the day of , 18 , and upon which default has been made, I will expose for sale at public auction, on day, the day of , 18 , at o'clock, in the noon, at [designating the particular place of sale], the property mortgaged, consist- ing of 187 horses, 35 stages, 18 sleighs, 250 tire bolts, 800 weight of iron, 800 weight of steel, two large iron safes. [The terms of sale to be made known on the day of sale.](6) Dated , the day of , 18 . [Signature of attorney or auctioneer.] 483. Terms of Sale. Teems of sale. — One-third of the amount of the purchase-money in cash, payable immediately after the sale, to the trustees named in the mort- The balance of said purchase-money in twelve equal monthly payments, for which approved indorsed promissory notes, bearing interest from date, falling due on, etc., are to be given, and the purchaser to execute an approved chattel mortgage to the said trustees on the property so sold to him, to secure the payment of the said promissory notes ; — notes and mort- gage to be given in five days from the purchase hereof. Property to be delivered when notes are given and mortgage executed. If the purchaser does not comply with the terms of sale, then the prop- erty to be resold at his expense and loss, and no benefit to accrue to him on such resale, and he will be held responsible for any deficiency from his bid. Bate.] (A) In large transactions, where written next form, this clause is inserted. Usually terms of sale are to be prepared, as in the it may bs admitted. 240 ABBOTTS' FORMS. Clerks and Criers. 484. Purchaser's Memorandum.(c) I have purchased the above property for the sum of dollars, on the terms above set forth. [Signature of purchaser.] 485. Notice of Adverse Claim, Read at the Sale, to Warn Purchasers. I, M. N., hereby give notice, that I have a mortgage on the property of A. B., now offered for sale, which is of prior date to the mortgage, under which this sale takes place, being, dated ,18 , which was then duly filed ; and dollars, with interest thereon, from the day of ,18 , is unpaid on my said mortgage, and is now due and col- lectable. Whosoever buys this property, must buy it subject to my mort- gage. CHAPTEE XXII. CLERKS AND CRIERS. The powers and duties of clerks of court are generally prescribed by stat ute. If a clerk has by law a deputy, acts which are in their nature ministerial, such as signing and sealing papers, may be done in the clerk's name by the deputy.(a) The laws of New Tork(6) require clerks of counties and of courts of record, and the register of deeds in the city of New York, and the clerk of the City Court of Brooklyn,(c) to keep open office every day, except Sundays and holi- days, in the county of New York, from 9 A. M. to 4 P. M. ; and in other counties, between March 21 and October 1 , from 8 A. M. to 6 P. M., and between Septem- ber 30 and April 1, from 9 A. M. to 5 P. M. The following forms are those which are used in open court by clerks or criers. Forms of judgments and other records in actions and special proceed- ings will be found in the volumes of forms in Practice and Pleading ; and forms of certificates and other acts of various kinds will be found under their appropriate heads in this volume, such as Acknowledgment and Proof of Deeds, Oaths, Searches, etc. PAGE 486. Proclamation on opening court 242 487. Proclamation for sheriff to return process 242 488. Proclamation for magistrates, etc., to return recognizances, etc 242 489. Proclamation before calling grand-j ury 242 490. Oath of the foreman of the grand-jury 242 491. Oath of grand-j urors ■ 248 492. Proclamation for silence on charging grand-jury 243 (n) This is written at the foot of the (i) laws of 1860, 480, chap. 276. terms of sale. (c) Laws of 1863, 91, chap. 66, § 10. (a) Lynch v. Livingston, 6 N. T. (2 Seld.), 422. CLERKS AND CRIERS. 241 Analysis of Chapter. PAflB 493. Proclamation calling constables 248 494. Proclamation before calling petit-jury 248 495. Proclamation for imposing fines 248 496. Proclamation for persons to appear on recognizances '. 243 497. Proclamation for persons bound to answer 248 498. Proclamation for bail to produce principal 248 499. Proclamation for disoharge of persons against whom no bills are found 244 500. Proclamation for discharge 244 501. Proclamation for arraignment of prisoners 244 502. Arraignment of person indicted 244 503. Proclamation for petit-jury on the same 244 504. Address of clerk to the prisoner, before calling the jury 244 505. Oath of juror on a trial for felony 244 506. Oath of trier on a challenge to the favor 245 507. Oath of a witness before the triers 245 508. Finding of the triers 245 509. Proclamation requiring a witness under recognizance to appear and testify.. 245 510. Oath of a witness on a trial for felony 245 511. Proclamation before sentence pronounced 245 512. Proclamation before calling jury on a trial for misdemeanor 245 518. Oath of juror on a trial for misdemeanor ;'. 245 514. Oath of a witness on a trial for misdemeanor 245 515. Oath of a witness on the trial of a justice, on charges 246 516. Address of the clerk on taking a recognizance to appear 246 517. The same ; on recognizance to keep the peace, or for good behavior 246 518. Taking verdict on a trial for felony 246 519. Polling jury in the same 246 520. Taking verdict in other criminal oases 247 521. Polliug jury in the same 247 522. Proclamation for jury in a civil cause 247 523. Oath of jurors in a civil cause 247 524. Oath of triers in a civil cause, upon a challenge for favor 247 525. Oath of witness on a challenge of a juror 247 526. Proclamation for plaintiff to appear and prosecute 248 527. Proclamation for defendant on an inquest 248 528. Proclamation calling a witness to answer on a subpoena 248 529. Oath of a witness to give testimony 248 580. The same by the uplifted hand 248 581. Affirmation of witness 248 532. Oath on the voire dire 248 533. Entry when an attachment issues against a witness 248 534. Oath of interpreter 248 535. Oath of interpreter to a deaf and dumb witness 249 536. Oath of party, or interested witness, preliminary to evidence of the contents of a paper not produced 249 537. Oath of a party, or interested witness, preliminary to proving the hand- writing of a subscribing witness 249 538. Proclamation for adjournment 249 539. Proclamation for opening court after adjournment 249 540. Oath of constables, on retiring with a jury, or jurors, on leave 249 541. Oath of constables, to keep jury on an adjournment 249 542. Oath of constable who attends the jury when they retire to consider their verdict in civil anc criminal cases 250 543. Taking verdict in a civil case 250 544. Entry of verdict 250 16 242 ABBOTTS' FORMS. Proclamations and Oaths. PAGK 545. Entry of verdict, with assessment of vnl ue of personal property 250 546. Entry of judgment 250 547. Taking verdict where personal property is in question 251 548. Taking verdict in actions for damages 251 549. Taking verdict in cases of lunacy, etc 251 550. Taking verdict in action for recovery of real property 251 551. Polling jury in civil cases 251 552. Oath on application to excuse or discharge a juror or constable 252 553. On application of juror, or constable, for a remission of fine 252 554. Oath of poor witness, on application for expenses 252 555. Notice of drawing a jury 252 556. Notice of drawing additional jurors 252 486. Proclamation on Opening Court. Hear ye, hear ye, hear ye : All manner of persons that have any business to do at this [here name the court — e. g., thus :] Circuit - Court and Court of Oyer and Terminer, held in and for the county of , let them draw near and give their attendance, and they shall be heard. 487. Proclamation for Sheriff to Return Process. ^Sheriff of the county of : Return the writs and precepts to you directed and delivered, and returnable here this day, that the court may proceed thereon. 488. Proclamation for Magistrates, etc., to Return Recognizances, etc. All justices of the peace, coroners, sheriffs and other officers, who have taken any recognizances, examinations or other matters : return the same to the court here, that they may proceed thereon. 489. Proclamation Before Galling Grand-Jury. Ton, good men, who are here returned to inquire for the People of the State of New York, for the body of the county of : answer to your names, every man, at the first call, and save your fines. [Here call them by name, one by one in their order.] 490. Oath of the Foreman of the Grand-Jury. You, as foreman of this grand inquest, shall diligently inquire, and true presentment make, of all such matters and things as shall he given to you in charge; the counsel of the people, of your fellows, and your own, you shall keep secret: you shall present no one from envy, hatred or malice; nor leave any one unpresented, for fear, favor, affection, reward or the hope of reward ; but you shall present all things truly, as they come to youi knowledge, according to the best of your understanding. So help you God. CLERKS AND ORIERS. 248 Prooliimations and Oatlia. 491. Oath of Grand-Jurors. The same oath your foreman has taken on his part, you and each of you shall truly observe and keep on your part. So help you God. 492. Proclamation for Silence On Charging Grand-Jury. All persons are strictly charged and commanded to keep silence, while the court is giving the charge to the grand-jury, on pain of imprisonment. 493. Proclamation Galling Constables. Constables of the county of : Answer to your names, every man, at first oaU, and save your fines. 494. Proclamation Before Calling Petit-Jury. Hear ye, hear ye, hear ye : You, good men, who are here returned, to try the several issues to be tried at this Circuit Court and Court of Oyer and Terminer, held in and for the county of , answer to your names at the first call, and save your fines. 495. Proclamation for Imposing Fines. Hear ye, hear ye, hear ye : The court have imposed a fine of dollars, upon each of the following persons, for non-attendance as grand-jurors [or, petit-jurors ; or, constables], at this court — to wit : A. B., of , etc., eto. 496. Proclamation for Persons to Appear On Recognizances. Hear ye, hear ye, hear ye: All manner of persons who are bound by recognizances to prosecute, or prefer, any bill of indictment, against any prisoner or other person, let them come forth and prosecute, or they will forfeit their recognizances. 497. Proclamations for Persons Bound to Answer. Hear ye, hear ye, hear ye : A. B., come forth and answer to your name, and save yourself and bail, or you will forfeit your recognizance. 498. Proclamation for Bail to Produce Principal. Hear ye, hear ye, hear ye : 0. D. and E. F., bring forth A. B., your prin- cipal, whom you have undertaken to have here this day, or you will forfeit your recognizance. 244 , ABBOTTS' FOEM&. Proclamations and Oaths. 499. Proclamation for Discharge of Persons Against Whom No Bills are Found. Hear ye, hear ye, hear ye : If any man can show cause why A. B. should stand longer bound [or, imprisoned], let him come forth, and he shall be heard, for he stands upon his discharge. 500. Proclamation for Discharge. Hear ye, hear ye, hear ye: No cause being shown why A. B. shonld longer remain in custody of the sheriff of the county of , he is discharged. 501. Proclamation for Arraignment of Prisoners. All persons are strictly charged and commanded to keep silet ce while the court proceed to arraign the prisoners on indictment for felony. 502. Arraignment of a Person Indicted. [After reading the indictment to the prisoner; or saying to him,] The grand-jury have indicted you- for a felony [or, a misdemeanor], and stating the facts charged in the indictment."] Do you demand a trial on this indictment? [Or, do you plead guilty or not guilty to this indictment?] 503. Proclamation for Petit-Jury On the Same. You, good men, who are here returned to inquire between the People of the State of New Yok. and A. B., the prisoner at the bar, answer to your names as you are called, and save your fines. 504. Address of Cleric to the Prisoner, Before Calling the Jury. A. B. : These good men that you shall now hear called, are the jurors who are to pass between the People of the State of New York and you [or, if a cajdtal case, to pass upon your life and death] ; if, therefore, you will challenge them as they come to the book to be sworn, and before they are sworn, you shall be heard. [The crier then calls the jurors, one at a time, as they are drawn by the cleric ; and when the juror comes to the stand, and is ready to be sworn, the clerh says : Juror, look upon the prisoner ; prisoner, look upon the juror ] 505. Oath of Juror On a Trial for Felony. You shall well and truly try, and true deliverance make, betweon the People of the State of New York, and A. B., the prisoner at the bar, whom you shall have in charge, and a true verdict give, according to the evidence. So help you God. CLERKS AND CRIERS. 245 Proclamations und Onths. 506. Oath of Trier On a Challenge to the Favor. You shall well and truly try and find whether M. N., the juror chal- lenged, stands indifferent between the People of the State of New York and the prisoner at the bar. So help you God. 507. Oath of a Witness Before the Triers. You shall true answers make to such questions as shall be put to you, touching the challenge of M. N,, as a juror. So help you God. 508.. Finding of the Triers. The finding is, that M. N. stands indifferent [or, not indifferent]. 509. Proclamation Requiring a Witness Under Recognizance to Appear and Testify. Hear ye, hear ye, hear ye : G. H., who is hound by recognizance to give evidence against A. B., the prisoner at the bar, come forth, answer to your name, and give evidence, or you will forfeit your recognizance. 510. Oath of a Witness On a Trial for Felony. The evidence you shall give between the People of the State of New York and A. B., the prisoner at the bar, shall be the truth, the whole truth, and nothing but the truth. So help you God. 511. Proclamation Before Sentence Pronounced. Hear ye, hear ye, hear ye : All manner of persons are commanded to keep silence, while judgment is given against the prisoner at the bar, upon pain of imprisonment. 512. Proclamation Before Calling Jury On a Trial for Misdemeanor. You, good men, who are here returned to try this issue of traverse, between the People of the State of New York and A. B., the defendant, answer to your names as you are called, and save your fines. 513. Oath of Juror On a Trial for a Misdemeanor. You shall well and truly try this issue of traverse between fhe People of the State of New York and A. B., the defendant, and a true verdict give therein, according to the evidence So h;lp you God. 514. Oath of a Witness On a Trial for a Misdemeanor. The evidence you shall give in this issue of traverse, between the People of the State of New York and A. B., the defendant, shall be the truth, the whole truth, and nothing but the With. So help you God. 24:6 ABBOTTS' FORMS. Taking Recognizances, Verdicts, etc. 515. Oath of Witness On the Trial of a Justice, On Charges. The evidence you shall give between the People of the State of New York and Y. Z., on charges made against him as a justice of the peace, shall he the truth, the whole truth, and nothing but the truth. So help you God. 516. Address of the Clerk on Talcing a Recognizance to Appear. You [and each of you] acknowledge yourself [or, yourselves] to be in- debted to the People of the State of New York in the sum of dollars [or, to wit : you A. B. in the sum of $300, and you 0. D. in the sum of $200] to be levied of your [and each of your] goods and chattels, lands and tenements, to the use of the said people, if default shall be made in the condition following — to wit: The condition of this recognizance is such, that if you [or, the said A. B.] shall appear at the next Court of Sessions [or, of Oyer and Terminer] to bo held in and for the county of , then and there [or, from day to day during the sitting of the court] to answer * and stand trial upon a certain indictment against you [or, to testify and give evidence on the trial of a certain indictment against M. ST.] for felony [or, misdemeanor], and not depart the court without leave, and abide its order and decisions, then this recognizance to be void ; otherwise, to remain in fall force and virtue. Are you [and each of yon] content ? 517. The Same ; On Recognizance to Keep the Peace, or for Good Behavior, [As in the preceding form to the *, and then continuing :] to answer and stand trial upon a certain indictment against him, for [state the offence'], and shall also in the mean while keep the peace towards Y. Z. and all the other good people of this State [or, and shall also in the mean while be of good behavior], then this recognizance to be void ; otherwise, to remain in full force and virtue. Are you and each of you content ? 518. Talcing Verdict On a Trial for Felony. Gentlemen of the jury: Please answer to your names. [Here call them one by one.] Have you agreed upon your verdict ? [After the answer, say :] Jurors, look upon the prisoner. "Who shall say for you? [The foreman rises.] How say you? do you find the prisoner at the bar guilty of the felony [or, murder] whereof he stands indicted; or not guilty? [The fore- man answers :] Guilty [or, Not guilty], [Then the cleric adds:] Hearken to your verdict, gentlemen, as the court has recorded it. You say you find the prisoner at the bar guilty [or, not guilty] of the felony [or, murder, whereof he stands indicted ; and so you say all. 519. Polling Jury in the Same. [ When the polling of the jury is demanded, the cleric will begin with ths first name on the panel :] A. B., how do you find the prisoner at the bar! CLERKS AND CRIERS. 24:7 Proclamations, Oaths, eto. guilty or not guilty? [When the foreman has answered, call the next juror, as follows :] 0. D., is that your verdict? [Then proceed in the same manner through the whole panel, and when all have answered, say :] Then, gentlemen of the jury, hearken to your verdict us the court has recorded it. You say you find the prisoner at the bar * guilty of the felony [or, murder] whereof he stands indicted ; and so you say all. 520. Talcing Verdict in Other Criminal Gases. Gentlemen of the jury : Please answer to your names. [Here call them one by one.] Have you agreed upon your verdict? [After the answer is given, say :] "Who shall say for you ? [The foreman rises.] How say you? do you find the prisoner at the bar guilty of the misdemeanor [or, assault and battery, and riot; or, riot ; or, offence ; or, crime] whereof he stands in- dicted; or not guilty? [The foreman answers:] Guilty [or, Not guilty]. [Then the clerk adds :] Hearken to your verdict, gentlemen, as the court has recorded it. You say you find the prisoner at the bar guilty [or, not guilty] of the misdemeanor [or, assault and battery, and riot; or, riot; or, offence ; or, crime] whereof he stands indicted ; and so you say all. 521. Polling Jury in the Same. [As in Form 519 to the*, and then concluding thus:] guilty of the mis- demeanor [or, assault and battery, and riot ; or, riot ; or, offence ; or, crime] whereof he stands indicted ; and so you say all. 522. Proclamation for Jury in a Civil Cause. Hear ye, hear ye, hear ye: You, good men, who are here impanelled and returned to try this issue, joined between A. B., plaintiff, and Y. Z., defendant, answer to your names as you are called, and save your fines. 523. Oath of Jurors in a Civil Cause. Yon and each of you shall well and truly try the several issues which you shall have in charge at this Circuit Court, and true verdict give in them respectively, according to evidence. So help you God. 524. Oath of Triers in a Civil Cause, Upon a Challenge for Favor. You shall well and truly try, and truly find, whether E. F, the juror challenged, stands indifferent between A. B., plaintiff, and Y. Z., defendant, in the issue about to be tried. So help you God. 525. Oath of Witness On a Challenge of a Juror. You shall true answers make to such questions as shall he put to you, touching the challenge of E. F., a juror. So help you God. 248 ABBOTTS' FORMS. Proclamations, Oaths, etc. 52G. Proclamation for Plaintiff to Appear and Prosecute. A. B., appear and prosecute your action,, or your default will be entered. 527. Proclamation for Defendant on An Inquest. Y. Z., come forth and make your challenges, or you will lose your chal- lenges, and inquest will be taken against you by default. 528. Proclamation Galling a Witness to Answer on a Subposna. M. N., come forward and testify in this issue, joined between A. B., plaintiff, and Y. Z., defendant, according to the command of a subpoena therein served on you, or your default will be entered. 529. Oath of a Witness to Give Testimony. You do swear that * the evidence you shall give in this matter in differ- ence between A. B., plaintiff, and Y. Z., defendant, shall be the truth, the whole truth, and nothing but the truth, t So help you God. 530. The Same ; By the Uplifted Hand. You do swear, in the presence of the ever-living God, that [continuing as in preceding form from the * to the end]. 531. Affirmation of Witness. You do solemnly, sincerely, and truly declare and affirm that [continuing as in Form 529 from the * to the f\. 532. Oath on the Voire Dire. You shall true answers make to such questions as shall be put to yon, touching your interest in the event of this cause. So help you God. 533. Entry When An Attachment Issues Against a Witness. The People agt. Y. Z. On reading and filing an affidavit of the due service of a subposna on M. K, to appear here this day as a witness on the trial of this indictment, and he being called and not appearing, and on motion of Q. R., Esq., district attorney, ordered that an attachment issue against the said M. N. 534. Oath of Interpreter. You shall truly interpret between the court, the jury, the counsel and the witness, E. F., in this issue joined between A. B., plaintiff, and Y. Z., defendant. So help you God. CLERKS AND CRIERS. 249 Proclamations, Oaths, etc. 585. Oath of Interpreter to a Deaf and Dumb Witness. You shall well and truly interpret between the court, the jury, the coun sel and the witness, E. F., here produced in behalf of A. B., in this issue joined between A. B., plaintiff, and Y. Z., defendant. So help you God. 536. Oath of Party, or Interested Witness, Preliminary to Evidence of the Contents of a Paper Not Produced. You shall true answers make to such questions as shall be put to you touching the power or control you have over any paper or the loss or de- struction of any paper which would be proper evidence in this cause. So help you God. 537. Oath of a Party, or Interested Witness, Preliminary to Proving the Handwriting of a Subscribing Witness. You shall true answers make to such questions as shall be put to you touching your [or, the plaintiff's; or, defendant's] ability to procure the attendance of G. H., a subscribing witness to this paper [or, the paper in question]. So help you God. 5 38. Proclamation for Adjournment. Hear ye, hear ye, hear ye : All manner of persons who have any further business to do at this Circuit Court and Court of Oyer and Terminer may depart hence, and appear here again to-morrow morning, at o'clock, to which time these courts are adjourned. 539. Proclamation for Opening Court After Adjournment. Hear ye, hear ye, hear ye : All manner of persons who have been ad- v journed over to this hour, and have any further business to do at this Cir- cuit Court and Court of Oyer and Terminer may draw near, and give their attendance, and they shall be heard. 540. Oath of Constables, on Retiring With a Jury, or Jurors, on Leave. You shall retire with such jurors as have leave of absence from this court; you shall not speak to them yourself in relation to this trial, nor suffer any person to speak to them ; and you shall return with them with- out delay. So help you God. 541. Oath of Constables to Keep Jury on An Adjournment. You shall retire witl the jury to some convenient room, to be furnished by the sheriff; you shall not suffer any person to speak to them, nor speak to them yourself in relation to this trial, and you shall return with them at the order of the court. So help you God. 250 ABBOTTS' FORMS. Verdict. Entries. Judgment, 542. Oath of Constable Who Attends the Jury, When They Retire to Con^ sider their Verdict in Civil and Criminal Cases. You shall well and truly keep every person sworn on this jury, in some private and convenient place, without meat or drink, water excepted ; you shall not suffer any person to speak to them, nor speak to them yourself, without leave of the court, except it be to ask them whether they have agreed on their verdict, until they have agreed on their verdict. So help you God. 543. Taking Verdict in a Civil Cause. Gentlemen of the jury : Please answer to your names. [Call them one by one.] Have you agreed upon your verdict ? * How do you find ? [The foreman states the finding of the jury ; the clerk then enters the verdict and continues :] Gentlemen, listen to your verdict as it stands recorded. To" say you find [etc., as the finding may be] ; and so you say all. 544. Entry of Verdict. Supreme Court, A. B. ) County of . At a circuit court held in and for against > said county, on the day of , 18 , before J. K., Y. 7.. J Esq., justice. JUKOKS. [Insert names.] WITNESSES. [Insert names.] Verdict for defendant [or, verdict for plaintiff, damages, $ ; or, verdict for plaintiff against defendant, Y. Z., damages, $ , and verdict for the defendant, E. F. ; or, if it be a special verdict, insert the same at length]* [Signature of] Clerk. 545. Entry of Verdict, With Assessment of Value of Personal Property, Supreme Court, A. B. \ County of, etc. [as in the preceding form to the *, and against > then add:] and the jury assess the value of the said [men- Y. Z. ; tion the property in question] at dollars : [//' necessary add : and they further assess the damages of the said defendant by occasion of the delivery and detention of the said property, at dollars.] [Signature of] Clerk, 546. Entry of Judgment. Supreme Court, A. B. \ Judgment, against > [Date.] Y Z ) This cause being at issue upon the facts and a trial by CLERKS AND CRIERS. 251 Taking Verdicts. Polling Jury. jury having been had, on which a verdict was found for the plaintiff, that, . etc. [state the finding ; or, if there was no jury, say : and the same having been submitted to the court, decision was rendered, etc.] Now, on motion of G. 11., attorney for the plaintiff, it is ordered and ad- judged by the said court, that, etc. [as the verdict may be]. Clerk. 547. Taking Verdict Where Personal Property is in Question. [As in Form 543 to the *, and then continue:] How do you find? [The foreman answers : We find the title of the horse in question to be in the plaintiff, and assess the value thereof at one hundred dollars. [The cleric enters the verdict, and then adds ;] Gentlemen, listen to your verdict as it stands recorded. You say you find, etc [as above] ; and so you say all. 548. Taking Verdict in Actions For Damages. [As in Form 543 to the *, and then continue :] How do you find 1 [The foreman answers : "We find for the defendant ; or, We find for the plaintiff dollars damages. [The clerk enters the verdict, and again repeats the finding., and makes the inquiry, as in the preceding form.] 549. Taking Verdict in Cases of Lunacy, etc. [As in Form 543 to the *, and then continue :] How do you find ? [The foreman answers : "We find that A. B. is a lunatic, of unsound mind, and incapable of managing or conducting his affairs; or, that A. B. was of un- sound mind at the time of the execution of the will [or, deed] in question — to wit : on the day of , 18 , and incompetent to execute the same ; or, that A. B. was of unsound mind, and incompetent to contract matrimony, at the time of the solemnization of the marriage to E. D. — to wit: on the day of , 18 .] [The clerk then enters the verdict, repeats the finding, and makes the inquiry, as in Form 547.] 550. Taking Verdict in Action For Recovery of Real Property. [As in Form 543 to the *, and then continuing : ] How do you find ? [The foreman answers': "We find the title of the land in question to be in the plaintiff; or, defendant : If there is a claim for the mesne profits, add : and assess the damages for withholding the said premises, against the defendant, at dollars. The clerk enters the verdict, repeats the finding, and makes the inquiry, as in Form 547.] 551. Polling Jury in Civil Cases. [When the polling of the jury is demanded, the clerk will begin with the first name on the panel :] A. B„ you say.you find [as the verdict may be : after the answer is given, then call the next juror]. C. D., is that your verdict ? [Proceed in thil 252 ABBOTTS' FORMS. Oaths. Drawing Jury, manner through the list, and when all have answered, say :] Then, gentle- men of the jury, hearken to the verdict, as the court has recorded it. You say you find [as the verdict may be} • and so you say all. 552. Oath on Application to Excuse, or Discharge, a Juror or Constable. You shall true answers make to such questions as shall be put to you, touching your application [or, the application for and in behalf of E. F.] to be discharged [or, excused] from attendance as a juror [or, constable] at this court. Bo help you God. x 553. On Application of Juror, or Constable, for a Remission of Fine. You shall true answers make to such questions as shall be put to you, touching your application [or, the application for and in behalf of E. F.j for the remission of your [or, his] fine, for default'in attending as a juror [or. constable] at this [or, the last] term of this court. So help you God. 554. Oath of Poor Witness, on Application for Expenses. You shall true answers make to such questions as shall be put to you, touching your application for the expenses of your attendance at this court, as a witness in behalf of the people of, this State. So help you God. 555. Notice of Drawing a Jury. State of , County of , Clerk's Office. Notice is hereby given, that on , the day of , 18 , a panel of petit and grand jurors will be drawn at this office, to serve at a Circuit Court and Court of Oyer and Terminer [or, Court of Sessions], to be held in and for the county of , at the City Hall, in the city of , on , the day of , 18 . [Signature of] Clerk. 556. Notice of Drawing Additional Jurors. State of , County of . In the Court of the State ■ of New York. Whereas, in my opinion, more than thirty-six jurors will be required lo attend the Circuit Court and Court of Oyer and Terminer, to be next held in and for the county of , on the day of next. I do hereby order and direct that twenty-four additional jurors, to serve at said court, be drawn and summoned according to law. Witness my hand, the day of , . [Signature of] . Justice of the Supreme Court of the State of New York. State of , County of , Clerk's Office. Notice is hereby given, that on , the day of , 18 , in pursuance of the foregoing order for twenty-four additional jurors, a panel of petit-jurors will be drawn at this office, to serve at a Circuit Court and Court of Oyer and Terminer, to beheld in and for the county of , at the City Hall, in the city of on , the day of , 1§ . [Signature of] Clerk. CONTRACTS. 253 General Principles. chaptee xxrn. CONTRACTS. The law requires certain contracts to be reduced to writing and signed, m order to give them binding force. The object of this is to prevent misunder- standing, and preclude attempts to prove important contracts by false or loose verbal testimony in cases where the minds of the parties never actually met in agreement. The statute regulating this subject is called the Statute of Frauds. It is to the following effect : In the following cases, every agreement is void, unless such agreement, or some note or memorandum thereof, expressing the consideration,^) be in writing, and subscribed by the party to be charged therewith : 1- Every agreement that by its terms is not to be performed within one year from the making thereof; 2. Every special promise to answer for the debt, default or miscarriage of another person ; 3. Every agreement, promise or undertaking, made upon consideration of marriage, except mutual promises to marry. Every contract for the sale of any goods, chattels or things, for the price of fifty dollars, or more, is void, unless : 1. A note or memorandum of such contract be made in writing, and be sub- scribed by the parties to be charged thereby ; or, 2. Unless the buyer shall accept and receive part of such goods, or the evi- dences, or some of them, of such things in action ; or, 3. Unless the buyer shall, at the time, pay some part of the purchase-money. No interest in lands, other than leases for a term not exceeding one year, nor any trust or power relating to lands, can be created, granted, assigned, sur- rendered or declared, unless by act or operation of law, or by a deed or con- veyance, in writing, su bscribed by the party creating, granting, assigning, sur- rendering or declaring the same, or by his lawful agent, thereunto authorized by writing ; but this does not affect wills, implied trusts, etc. Another rule of law having the same object as one of its reasons, is that where parties have reduced their intentions to writing, the terms of the written instrument, if clear and unambiguous in themselves, are deemed to be the best evidence of what is intended. And the writing cannot be contradicted or varied by parol evidence aiming to show that something different was de- signed. A written contract executed by an agent on behalf of a known principal, ought to purport on its face to be the contract of the principal, and to be signed with the name of the principal, and not with that of the agent alone. A per- son may become bound by any mark or designation lie sees fit to adopt, pro- vided he signs it as a substitute for his name, and intends to he bound by it. No technical words, or order of words, are requisite to make a condition pre- cedent or subsequent, but it depends on the good sense and plain understand- ing of the contract, and the acts to be performed. The same words may op- erate as either a condition precedent or subsequent, according to the nature of ■the transaction, and as evincing the intention of the parties. The precedency depends not upon +he order of the clauses, but upon the order of time in which the intent of the transaction requires their performance. It is best, therefore, to have the conditions distinctly expressed, that there may be no doubt of the intention in this respect. (a) The requirement that the consider- pealed in New York. Laws q/1863, 802, Btion be expressed has recently been re- chap. 464. 254 ABBOTTS' FORMS. Contracts. In the case of formal and important contracts, it is usual to affix seals and to have the execution attested by witnesses. The effect of the latter formality is to require the party afterwards seeking to prove the contract in court, to pro- duce the same witness or account for his absence. If the instrument is not attested by a witness, other proof may be resorted to, such as the testimony of the party, handwriting, etc PAGE 557. General form of contract, with provision for liquidated damages in case of breach 254 558. Contract executed by agents or attorneys in fact 255 559. Contract declaratory of the construction of a previous contract 255 560. Contract with a clerk or workman 256 561. Contract to bind a minor to service in payment for his passage-money 256 562. Acknowledgment of the foregoing contract , 256 563. Railroad construction contract 257 564. Contract by officers of a corporation, for construction of a locomotive engine 269 565. Contract for the construction of a steamship 269 566. Contract for the construction of engines for a steamship 270 667. Contract for the right to manufacture a patented article, paying a tariff to the patentee ' 271 668. Contract between author and publisher, for publication of a book upon a copyright 272 569. Contract for sale of manuscript and copyright 27S 570. Contract between printers and publishers, for publication on joint account. . 274 571 . Agreement for sale and purchase of personal property — 275 572. Contract for sale of goods at a price to be fixed by appraisal 275 573. Contract for sale of stock of goods and good-will of business, with covenant in restraint of the vendor 276 574. Agreement to sell shares of stock in a corporation or joint-stock company. . 277 575. Contract for sale of land 277 576. The same; with building loan 278 577. Contract for sale of farm and mill; payment in instalments 281 578. Stipulation as to terms of purchase-money mortgage 282 579. Stipulation as to time of taking possession and inccme 282 580. Stipulation as to possession, taxes, etc 282 581. Provision that existing insurance shall inure to the tenefit of the purchaser. 288 582. Contract of severa^ persons to unite in a purchase 283 583. Agreement for a lease 283 584. Contract for building 2S4 585. Special stipulations which may be inserted according to the nature of the case 284 586. Contract for masons' work of a building 285 687. Contract to build party wall 287 588. Agreement for changing mortgage security 288 55V. General Form of Contract, With Provision for Liquidated Damages in Case of Breach. This agreement, made the day of , one thousand eight hun- dred and , by and between A, B., of the town of , in the county of , manufacturer, of the first part, and Y. Z., of , merchant, of the second part, witnksskth : That the said party of the second CONTRACTS. 255 General Forms. part covenants and agrees to and with the party of the first part, to [here insert the suhjeat-matter of the agreement]. And the said party of the first part covenants and agrees to pay unto the said party of the second part, for the same, the sum of dollars, lawful money of the United States, as follows : the sum of dollars, on the day of , 18 , and the sum of dollars, on the day of , 18 , with the in- terest on the amo int due, payable at the time of each payment. And for the true and faithful performance of all and every of the cove- nants and agreements above mentioned, the parties to these presents bind themselves, each unto the other, in the penal sum of dollars, as liqui- dated damages, to be paid by the failing party. In witness whereof, the parties to these presents have hereunto set their hands [and seals], the day and year first above written. [Signatures, with or without seals.] [If attested hy witnesses, add:] Signed, sealed and delivered in ) the presence of J [Signature of witnesses.] 558. Contract Executed oy Agents or Attorneys in Fact. This agreement, made this day of , 18 , between A. B., of , farmer, of the first part, by C. D., his attorney, and Y. Z., of , merchant, of the second part, by W. X., his attorney, witnesseth: That the said party of the first part [etc., as in other forms to the end, sign- ing thus :] A. B. [Seal] By 0. D., his attorney. Y. Z. [Seal] By W. X., his attorney. 659. Contract Declaratory of the Construction of a Previous Contract. This agreement, made the day of ,18 , between A. B., of , of the first part, and Y. Z., of , of the second part : Whereas a difference has heretofore arisen between the parties to these presents, in relation to their respective rights and obligations under a cer- tain contract, made on the day of , 18 , between them ; and the parties hereto have now come to a mutual understanding and agree- ment respecting all the matters aforesaid, and propose to set forth the same in these presents, as declaratory of their respective rights and obligations from the date hereof, henceforward, for the government of themselves under the same : Now, this indenture WITNESSETH, that the parties of the second part covenant, promise and agree to and with the party of the first part [etc., according to the nature of the case]. In witness [etc., as in Form 557 1 . 256 ABBOTTS' FORMS. Contracts for Personal Services. 5G0. Contract With a Clerk or Workman. This agreement, made this day of , 18 , between A. B., of , of the first part, and Y. Z., of , of the second part, ■witnesseth: That the said A. B. agrees faithfully and diligently to serve the said Y. Z., as clerk, in the store of the said Y. Z. [or otherwise], at , for the period of from and after the day of next, for the sum of dollars per . In consideration of which service so to be performed, the said Y. Z. agrees to pay the said A. B. the sum of per month [payable as follows : on the day of , and on the day of each month following, during said term, and at the expiration thereof, the balance of such sum as has not then been al- ready paid]. And it is understood and agreed that the death of either of them occur- ring prior to the expiration of said term of , shall terminate this agreement. In witness [etc., as in Form 557]. 561. Contract to Bind a Minor to Service in Payment for Sis Passage- Money. This indenture, made this day of , 18 . , between A. B., an infant under twenty-one years of age — to wit : of the age of years on the day of , 18 , coming from in , a foreign country beyond sea, -of the one part, and Y. Z., merchant, of the city of , of the other part, witnesseth : That the said A. B., in pursuance of the statute in such case made and provided, and in consideration of the covenants hereinafter mentioned, does hereby bind himself to serve the said Y. Z. and his executors, administrators and assigns, for the full term of from the date hereof, during all which time the said A. B. shall well and faithfully serve the said Y. Z. and executors, administrators and assigns, in all such lawful business as he shall be put to by him or them, to the best of the power and ability of the said A. B., and that he will at all times behave himself honestly and obediently in said service. In consideration whereof, the said Y. Z. having brought him from beyond sea as aforesaid, also covenants to and with the said A. B. : that he, the said Y. Z., will furnish and allow the said A. B. suitable and sufficient Doard, meat, drink, washing and lodging and apparel and all other neces- saries during the said term. In witness [etc., as in Form 557]. 562. Acknowledgment of the Foregoing Contract. State of , ) County of . ) ' On this day of , 18 , before me came the within-named A. B., to me known to be the person who executed the within contract, and on a private examination before me, acknowledged that the same was made and executed by him freely, for the purposes therein expressed. [Signature of magistrate.] CONTRACTS. 257 Railroad Construction. 563. Railroad Construction Contract. Articles of agreement made this second day of July in the year 1850, hy and between & Company, of the one part, and the Central Railroad Company of Now Jersey, by their president, of the second part. Witness : that for and in consideration of the payments and covenants hereinafter mentioned, to be made and performed by said corporation, the said party of the first part doth hereby promise and agree to execute, con- struct and finish in every respect, in the most substantial and workmanlike manner, and to the satisfaction and acceptance of the engineer of said cor- poration, the grading, masonry, bridging, and railway superstructure of the said railroad, from its present terminus at White House to the village of Phillipsburgh on the Delaware River opposite to Easton, being a distance of about twenty-eight miles. And the said grading, masonry, bridging, and railway superstructure shall be made and completed as described in the following specifications, on or before the first day of January in the year 1852, and sooner if practicable. GRADING. 1. Under the head of grading shall be included all excavations and em- bankments required for the formation of a road-bed for a single track and all turnouts; also the preparation of all such depot grounds, sites for water stations, etc , as shall be required by the engineer ; the digging of all ditches, the foundations for masonry, changing the direction of streams, removing the bottoms in rock and clay cuttings, and all other excavations and em- bankments in any way connected with, or incident to, the construction of the railroad. 2. All grading shall be done and estimated by the cubic yard, measured in excavation, and shall be comprised under the three following heads — viz., "earth," "loose and shale rock" and "solid rock." " Earth excava- tion" shall include all varieties ; also all detached rocks, the dimensions of which shall not exceed one cubic yard; also all decomposed and rotten rocks, and shale rock on the top of cuts that can or may be ploughed, or can or may be excavated by using one pick to one shovel. ''Loose and shale rock" shall include all varieties of shale rock, excepting as above specified, whether loose or solid; and all rock that may be quarried or excavated with "Picks and Bars;" and it is understood that under this class shall be included the whole of the red-shale cuttings, except such part of the top of said cuttings as may come under the classification of earth as above specified. " Solid rock" shall include all rock not shale rock, found in ledge and requiring blasting. 3. The road shall be graded for a single track (except at depots, turnouts and other places hereinafter provided for), with a road-bed of such width, and slopes of such inclination, as the engineer shall designate ; and in con- formity to such depths of cuttings and fillings, and to such demarkations as may have been, or may hereafter be, determined and fixed upon as guides and boundaries for the work. 17 258 ABBOTTS' FORMS. Railroad Construction Contract. 4. The surface of the road, when finished off and at grade, shall — except When the engineer shall otherwise direct — be fifteen feet wide on embank- ments, and twenty feet wide in excavations. 5. All clearing, grubbing, etc., that may be required on the sites of the excavations, embankments, depots, etc., shall be done ; and the trunks, tree- tops, and other rubbish shall be removed to such distance, and disposed of in such manner as the engineer may direct, and no extra charge or allow- ance shall be made therefor ; it being expressly understood that the expenses attendant upon doing all such work are included in the price per yard to bo paid for grading; and in reference to grubbing, it is understood that when not more than three feet below grade, shall be grubbed up and removed beyond the limits of the embankment. 6. The earth, gravel and other materia), except stone suitable for masonry and other purposes, taken from the excavations upon any section,- shall be used and applied in the formation of embankments on the same section; and when the quantity of materials taken from any excavation shall be greater than that required to make the embankment of the usual width, the surplus shall be deposited on one or both sides of the embankments in such manner as to increase their width uniformly, or in such other manner as the engineer shall direct. In cases where the quantity of materials taken from the excavations in any sections shall not be sufficient for the formation of the requisite embankment, the deficiency shall be supplied by materials taken from the adjacent grounds, at such places as the engineer may designate, or from an enlargement of the excavations made equally and uniformly on one side or both sides of the same, or in such other manner as the engineer may deem necessary and proper; and the sides of the excavations, in all such cases, shall be dressed off to such slope as the engineer shall require ; provided that if the contractors shall have sloped such excavations according to the directions of the engineer, before widen- ing the same, they shall receive for sloping the second time, such compensa- tion as said engineer may deem fair and reasonable ; provided, also, that the contractors shall not be required to supply the deficiency of materials last referred to at an expense of haul greater than the average haul of the section. 7. Whenever the route of the railroad is traversed by public or private roads, commodious passing-places shall be kept open for the accommodation of all having occasion to use them ; and whenever excavations or embank- ments may be required in order to establish or maintain such passes or crossing-places, the contractor engaged on the section traversed shall pre- pare such passing-places in such manner as the engineer shall direct, and keep them free from obstructions; and whenever the route of the railroad shall approach so near to any public or private road as to render necessary the discontinuance of the same, and the construction of a new road, all excavation and embankment required in the construction of the same shall be done by the contractors if required by the engineer ; and, in payment for the same, af well as the work done ac the crossing-places above-named, they shall reseive the same price per yard as for other grading on the section. CONTRACTS. 259 Eailroad Construction. 8. All stone taken from excavations shall be removed to such places, within the average haul of the section, as the engineer may designate, and such stone shall be the property of the corporation, excepting such as may be used by said & Company for masonry on the road. 9. The blasting of rocks in the progress of the work shall be at all times at the risk of the contractors, and all damages occasioned thereby shall be paid by them. 10. In filling over culverts and around masonry, the material shall be so hauled and deposited as not to cause improper strain on the arches or walls ; and when rock or other dry material, not subject to be affected by frost, can be obtained on the section, it will be hauled and deposited around the wing, walls and abutments of the bridges and culverts in such manner as the engineers may direct, subject to the same conditions as to extra haul as is provided for in borrowing earth. 11. The location of any part of the road may be altered, whenever the engineer may consider such alteration necessary and expedient ; and if said alteration be made on any section, or parts of a section, before the signing of the contract, the contractor's prices shall remain the same ; if made after- wards, such allowance or deduction shall be made therefor as the engineei may judge fair and equitable to both parties. 12. The length of any sections may be either increased or diminished by the engineer, upon the same conditions that the location of a portion of the road may be altered, as stated in the 11th specification above. 13. Ballasting. — In all cuttings where the bottoms have been removed by directions of the engineer, the same shall, after the road- bed has been graded, be filled in with the best sand and gravel to be found on the line of the road, or bard shale rock free from ' any admixture of clay. The said ballasting to be procured from the nearest cuttings of a suitable character. 14. General Stipulations. — All masonry shall be done and estimated by the cubic yard. 15. The right is reserved to the Central Railroad Company, acting by the engineer of the work, to dispense with any of the designated culverts or bridges, or to modify their dimensions. 16. The abutments, piers, arches, spandrels, parapets, walls and wings shall conform to the plans that may be furnished by the engineer. 17. The price paid per cubic yard shall cover and include every expense incurred in the construction of the masonry — such, for instance, as the cost of the stone, sand, lime, cement, centres, etc., as well as the actual work- manship. 18. The whole of the work shall be executed in the most substantial and workmanlike manner, to the fl and entire satisfaction of the engineer of the company ; and all the materials used shall be subject to his approval and inspection before being used in the work. 19. CuherU. — The box culverts shall be built of rubble masonry, in a 260 ABBOTTS' FORMS. Railroad Construction Contract. strong and workmanlike manner, the stones laid on their hroadest beds, with good joints, aud the work thoroughly bandid with a proper propor- tion of headers and stretchers. The bottom of the vents shall be paved, whenever the enginesr shall consider the same necessary — the stone to be of such size as to make the paving of the required thickness, without pla- cing one upon the top of another — to be very closely laid, and the whole well rammed or hammered down. The tops to be covered with strong stone, at least two feet longer than the vent is wide, and of such thickness as may be designated on the plans. 20. The walls of arch' culverts to be built of the best description of rubble masonry. The arch sheeting to be of such depth as to lay the full thick- ness of the arch. Said sheeting, when of a rubble character, shall be laid in mortar, composed of equal parts of common lime aud Rosendale cement, each mixed with two parts of clean, sharp sand ; and when hammer-dres-ed, the stone shall be cut or shaped so as to range transversely of the arch and conform to the radius of the circle of which the arch is a segment, and shall be laid and grouted in mortar. 21. The beiok baubel oui.vetcts shall be built of the best quality of hard burned weather brick, and shall be well laid in mortar, composed of equa". parts of cement and clean, sharp sand, mixed with a proper proportion of water. 22. Public road and farm bridges. — All the masonry of these bridges shall be of a rubble character, excepting the corner-stones and capping, which shall be hammer-dressed on the beds and tops, and have a chisel draft of one inch round the joints. The whole of the joints on the exposed surface of the abutments, piers and wing walls to be pointed with mortar. The arches of road bridges shall be built in conformity to the specifications for similar work in arch culverts. 23. River bridges. — The masonry of these bridges shall be of the best description of "hammer-dressed work with lock face," in random courses, and shall be well laid in good mortar, composed of equal parts of common lime and Newark cement, or other cement equally good, and which may be approved. The face-stone shall be laid two stretchers to one header, the stretchers to average not less than eighteen inches in width upon the beds, and the headers three feet in length and eighteen inches in width. And there shall be not less than three bond-stones in the interior of wall in each course in height of the piers and abutments, and in the same proportion in the wings — containing at least six cubic feet. The backing shull be laid so as to have proper bond with the face-stcnes, and shall be carried up at the same time; and all irregularities or cavities formed by the irregular ends of the large stones shall be filled up and made solid. The whole of the out- side joints of the piers, abutments and wing-walls shall be neatly pointed with mortar, composed of equal parts of Newark cement and clean, sharp sand, mixed with a proper proportion of water. 24. Mortar. — All the mortar used, when not otherwise specified, shall bo composed of equal parts of common lime and Rosendale cement, each mixed with two parts cf clean, sharp sand. CONTRACTS. 261 Railroad Construction. 25. The superstructure of the public road and farm bridges to be built in a thorough and workmanlike manner, according to such plans, specifica- tions and bills of timber and iron as will be furnished from time to time by the engineer. 26. The superstructure of the four river bridges to be in spans of 130 to 168 feet, and to be built on the plan known as Howes' patent, or the plan known as Pratt's patent, at the option of the engineer. Tlie bridges across the South Branch, Musconetcong and Sohatcong rivers to have truss frames twenty feet in height from the lower edge of the bot- tom chord to the top of the upper chord, and an arch rib to be introduced — said rib to be connected with the lower chord by means of suspension rods. The truss frames of the Lapatcong River bridge to be eighteen feet in height. The width between the trusses, in all the bridges, to be fourteen feet. \\ here the spans are 150 feet, the trusses to have thirteen panels; and, if built on Pratt's plan, the trusses to contain an amount of timber and iron per running loot equal to what is contained in the bridge now building across the Connecticut River at Greenfield. And if built on Howes' plan, the area of the bottom chord to be equal to 364 inches of timber = 13 x 28 inches, and of the top chord, 308 inches = 11 x 28. The main braces to be half 9 by 10 inches and half 8 by 10 inches. The counter braces to be 1 by 10 inches. The lateral and vertical braces to be equal to 6 by 6 inches. The arch rib to have a cross section equal to 180 square inches = 20 x 9 inches. The floi r beams to be 6 by 13 inches and placed 5 in a panel. The track strings to be in two pieces, breaking joints each 6 by 12 inches. The floor plank to be two inches in thickness. The wall plates to be of white oak, 9 by 12 inches. A substantial guard-rail of timber to be placed on each side of the track — say 9 by 12 inches — properly bolted and secured to the floor-beams. And a neat hand-railing to be erected on each side of the bridge of 5 by 5-inch stuff. The sides of the bridges to be covered with dressed clap- boards one inch in thickness, secured to proper furring. The whole of the exposed wood-work and iron to be painted with two good coats of white lead and oil. The entire top or deck of each bridge to he covered with the best quality of I. C. or M. F. lead plate tin, which is also to be painted with two coats of white lead and oil. One-third of the main truss bolts to be of lj-inch round iron. One-third " " " of l|-inch " And one-third " " ol lfinch " The arch rib suspension rods to be of 1^-incL round iron — one to every panel. The lateral bolts to be of l|-inch round iron. 262 ABBOTTS' FOBMS. Eailroad Construction Contract. The intersection bolts to be of f-inch round iron, and placed through every intersection of the braces, etc. The bridges to be secured to each abutment and pier by two anchor bolts of If; -inch iron. The angle blocks and bolt bearings to be of cast iron, and the splicing- pieces, keys and wedges to be of well- seasoned white oak. The whole of the timber used, except as above specified, to be of the best quality of white pine, free from all shakes, injurious knots, and sap. The bolts and suspension rods to be of Banks's best refined iron, best Ulster iron, or other iron equal in quality, and which may be approved by the engineer. It is understood that the above specifications contain only the general dimensions for spans of 150 feet, and that detailed plans will be furnished or approved by the engineer for ench particular bridge. And, notwith- standing any omission or oversight that may be in the specifications or in the plans to be furnished or approved — necessary to complete the bridges in a substantial and workmanlike manner — the contractors shall be bound to complete the same without any addition to the contract price. RAILWAY SUPERSTKTTCTUEE. 27. The iron rails, chairs, spikes and cross-ties to be furnished by the contractors. 28. The following is an approximate estimate of the quantities required for laying one mile of superstructure : 91 tons of iron rails. 3,500 pounds of wrought-iron chairs. 4,500 pounds of spikes. 2,300 cross-ties. 29. The iron rails to be of the pattern adopted by the Central Eailroad Company — the length of the bars to conform to the specifications of the en- gineer — and the quality to be equal to the best rails manufactured by Guest & Co., of South Wales. 30. The chairs to be of wrought iron — to conform to the pattern to be furnished by the engineer — to weigh about six pounds each, and to be made of iron of the best quality, which must stand bending and hammering when cold. 31. The spikes to be made from T s ? inch wire — to be 5| inches in length, and weigh about 6£ ounces each. To be made of the best quality of iron, and the head to be of such form as may be approved by the engineer. 32. The cross-ties to be of good sound chestnut or white oak, 7j feet long, and when cut singly from round sticks to be hewed or sawed on two parallel sides to a width of at least six inches, and to measure not less than six inches in depth or thickness between the faces. The ends to be cut Bquare and the bark removed ; or if sawed with four square edges, they will be received, if they are 6 by 7 inches ; or if sawed or split from round stacks, 12 inches or upwards in diameter, they will be received if they are 5 inches between the faces, thus — CONTRACTS. 263 Knilroud Construction. 83. The cross-ties shall be laid in the track at an average distance of about 2 feet, 3^ inches apart, and shall be fairly, firmly and truly bedded .by thorough ramming. The joint cross-ties to be selected of large size, and, if possible, more carefully and firmly bedded than the others. 34. The ends of the rails shall be gauged to fit the chairs, and notches shall be cut by a suitable and approved machine, to receive the spikes and prevent the rails from sliding endways. 35. The rails, previous to being laid on straight lines, shall be exactly straightened, laterally and vertically. 36. On curves, the outer rail shall be laid as much higher than the inner one as the engineer may direct ; and on all curves of a greater defalcation than li degrees in 100 feet, the rails shall be permanently bent or curved, previous to being laid, to correspond with the curvature of the road ; and as often as may be necessary, rails shall be cut to keep the joints opposite. 37. The ends of the rails shall be placed not further apart than one- eighth of an inch in the coldest weather ; one-sixteenth, when the thermom- eter is at 70°(Far.), and nearly in contact in hot summer weather. 38. The joints shall be made smooth and even on the top and inner side ; and when necessary to obtain a perfect joint, the rails shall be chipped off or filed ; and when their heights vary, a piece of sheet, or hoop iron shall be inserted under the lowest to bring it up to the true level. 39. There shall be eight spikes to each cross-tie on which joints are made, and four to each intermediate cross-tie. Auger holes shall be bored in the cross-ties previous to driving the spikes, if deemed necessary by the engineer. 40. In laying the track, the cross-ties shall in no instance be laid more than 500 feet in advance of the iron rails, without the consent of the en- gineer. 41. It is understood that the base of the rail shall be from two to four tenths of a foot above the grade line.of the road, and that the road-bed shall be graded so as not to vary more than five-tenths from the established grade above or below. 42. After the rails have been laid, the space between the rails and two feet on each side of the same shall in cuts be filled in with clean gravel, coarse 'sand, or hard shale rock, free from any admixture of clay, to the level of the top of the cross-tie ; and on embankments, the space be- tween the rails shall be filled to the same level as in cuts, and the sides formed in a regular slope from the base of the rail to the edge of the bank. The material required to be borrowed for filling in shall be procured by the contractors from the nearest cutting of a suitable character ; and when ma- terial is taken from the side of a cutting, it shall be done regularly, so as to leave the same of a sightly appearance. 43. Side ditches shall be dug or opened of suitable width and depth to carry off water from the road-bed; and all rubbish of earth, timber or stone, shall be cleared off and removed ; and the cuts and embankments formed in a regular declivity, so as to throw the water from the track to the ditches. In fine, the surface of the whole roadway shall be smrothed off and completed in a neat and workmanlike manner. 264 ABBOTTS' FORMS. Railroad Construction Contract. 44. All the necessary turnouts and crossings shall be made by the con- tactors, and in such manner as the engineer may prescribe. GENERAL PROVISIONS. 45. For a more full explanation of the form and dimensions of materials and parts, and of the manner of constructing the work in all its details, plans, and, when necessary, bills of timber and plank will be furnished by the engineer, who will also give such directions, from time to time, during the progress of the work, as may appear to him necessary and proper,' in order to make the work complete and perfect in all respects, as contem- plated in the above specifications; and said plans, bills and directions shall in every respect be complied with. 46. No claims shall be made or allowed for extra work, unless the same shall have been done in pursuance of written contracts or orders, signed by the engineer ; and all claims for work done under such written contracts or orders, or on any other account, shall be presented for settlement, on or about the beginning of the month following that in which said work may have been done ; or at any other time within three days after the engineer shall have demanded the same ; and in case of failure so to present them, the contractors shall forfeit all such claims, and hereby are pledged not to present them in any way afterwards. 47. The corporation will assure a light of way over the premises of land- owners, so far as may be necessary to afford the contractors access to their work ; but the contractors shall be responsible for all damage done to such premises, in consequence of leaving gates or fences open, and also for all depredations upon fences, wood lots or other property, by the workmen in their employ. 48. It is mutually agreed, that the said company shall furnish the right of way on the line of said railroad ; but no claims for damages arising from delay that may in any case occur in obtaining title or possession shall be made by said contractors. But if possession shall not be obtained within three months from the date of this contract, then the said contrac- tors may give notice in writing of such detention, and shall be allowed for the completion of the portion of the work so delayed additional time equal to the period between such notice and the time possession shall be acquired. 49. It is agreed that this contract shall be prosecuted in such order, and at such places and parts of the work, and at such times and seasons, as th« said engineer may direct. And that the mortar masonry shall be laid up between the first day of April and the first day of November, and at no other season, unless by the special permission of the said engineer. 50. It is hereby agreed, that the work, during its progress, and the ma- terials delivered for the same, shall be subject to the inspection of the said engineer and his assistants ; and if any materials brought on for the use ol the work shall be condemned by the said engineer as unsuitable, the con- tractors shall, if required, remove said materials entirely away from the CONTRACTS. 26$ Railroad Construction. line of the work, so as to effectually guard against their introduction into the same. 51. It is further agreed, that if any work is found necessary, of a char- acter not contemplated or provided for in this contract, that the railroad company shall have the right to let the same in a separate contract, pro- vided the prices for doing such work cannot be agreed upon between the said engineer and the said contractors. 52. It is mutually agreed that the Central Railroad Company will be at the expense of transporting the iron rails from New York to White House, and that the transportation of all other materials required under this con- tract shall be at the expense of the said contractors. 53. It is understood and agreed that the contractors shall be allowed to use the iron rails for the purpose of temporary track ; and that a sufficient quantity for this purpose shall be delivered by the railroad company at White House as soon as may be required by the said contractors. 54. It is also understood and agreed, that the railroad company are to furnish the use of a locomotive engine and gravel cars for ballasting the road-bed and filling the track — the said contractors paying all expenses connected therewith. 55. It is also understood and agreed, that the railroad company, by their engineer, may change the location on sections 17 and 21, so as to equalize the excavation and embankment, and that the grading on the road may be increased in either direction two feet per mile ; and that for said changes and alterations no addition or deduction shall be made from the prices spe- cified in this contract. 56. And the said contractors hereby agree that they will perform the work under this contract as before specified ; but any alterations in the form, dimensions or materials of said work, which may be directed in writing by said engineer, shall be made by said contractors as directed ; and if the work shall be rendered thereby more expensive, they shall be en- titled to such extra compensation as said engineer shall estimate to be just and reasonable ; and if such alteration shall make the work less expensive, then a deduction shall be made, as said engineer may estimate to be just and equitable. 57. It is further understood and agreed that the specifications, condi- tions, obligations and prices, specified in this contract, shall regulate and bind the contracting parties, without reference to former proposals or under- standings. And for a failure to make and complete said grading, masonry, bridging and railway superstructure within the time fixed for completion, the engineer shall assess such damages as he may think just and reasonable, and charge said party of the first part with the amount thereof; or the said engineer may employ other help to hasten the completion of the work, within the said specified time, and the expense of such help shall be paid by said party of the first part; or in case it should appear to said engineer that the work had not progressed with sufficient rapidity, he shall have the power to determine that the contract has been abandoned ; and in the event of such determination, this agreement, on the part of said corporation, shall 266 ABBOTTS' FORMS. Railroad Construction Oontrnct. become null and void, and any balance of money due shall be forfeited by the said party of the first part to the said corporation ; and the said engineer shall have full right to contract with any person or persons instead of the said party of the first part, their heirs, executors or administrators, for the completion of said work; and the said party of the first part hereby covenant and agree that they will not molest, hinder or interrupt the said corporation, or those employed by them, in the prosecution of said work. And the said party of the first part may sublet the grading and common masonry, but shall not let or transfer any other part of the work to any other person or persons without tlie consent of the engineer. And to avoid disputes, and interruption., and hindrances to the regular and peaceable progress of the different parts of the work, and to prevent unnecessary injury to the rights, property and persons of residents in the vicinity, or of persons travelling on or near the line of said Central Railroad of New Jersey, said engineer shall have power to dismiss from the service of the said party of the first part, every quarrelsome disorderly person, and such as shall be addicted to habits of intemperance ; and the said party of the first part shall not employ any person who has been so dismissed from the service of any other contractor ; and furthermore, the said party of the first part shall not sell or furnish spirituous liquors, either to persons in their employ, or to any other person or persons on or near the line of said road. This provision is understood as prohibiting entirely the use of ardent spirits as above, and its infringement will subject the said party of the first part to the dismissal and forfeiture hereinafter mentioned. In condition of the fulfilment by the said party of the first part of the foregoing provisions of this contract, the said Central Railroad Company of New Jersey, hereby promises and agrees that they shall and will, foi doing and performing the work, as aforesaid, pay or cause to be paid to the said party of the first part, their heirs, executors or administrators, at the rate of 21| cts. Twenty-one and three-quarter cents for every cubic yard of earth excavation, as described in the specifications. 47 cts. Forty-seven cents for every cubic yard of loose and shale rock as described in the specifications. $1.00 One dollar for every cubic yard of solid rock as described in the specifications. 21f cts. Twenty-one and three-quarter cents for every cubic yard of ballasting. $3.83 Three dollars and eighty-three cents for every cubic yard of dry rubble masonry in box and arch culverts. $5.00 Five dollars for every cubic yard of rubble masonry in box and arch culverts laid in mortar. $7.55 Seven dollars and fifty-five cents for every cubic yard of rubble arch sheeting in culverts and road bridges laid and grouted in mortar. $11.50 Eleven dollars and fifty cents for every cubio yard of hammer- dressed arch sheeting in culverts and road bridges laid and grouted in mortar. CONTRACTS. 267 Railroad Construction Contract. $9.45 Nine dollars and forty-five cents for every cubic yard of brick- work in barrel culverts laid in cement. $5.78 Five dollars and seventy-eight cents for every cubic yard of masonry pointed with mortar in public road and farm bridges. $7.65 Seven dollars and sixty-five cents for every cubic yard of "ham- 1 mer-dressed work with rock face" laid in mortar in the four river bridges. $6.76 Six dollars and seventy-six cents for every cubic yard of " ham- mer-dressed work with rock face" laid dry in the four river bridges. $6.62 Six dollars and sixty-two cents for every cubic yard of rubble masonry laid in mortar in the four river bridges. $6.21 Six dollars and twenty-one cents for every cubic yard of rubble masonry laid dry in the four river bridges. 21 Jets. Twenty-one and three-quarter cents for every cubic yard of earth excavation in foundations for masonry. 47 cts. Forty-seven cents for every cubic yard of loose and shale rock in foundations for masonry. $1.00 One dollar for every cubic yard of solid rook in foundations for masonry. It bting understood- that the railroad company are to pay the actual expense of keeping the foundations clear of water. $5.90 Five dollars and ninety cents for every cubic yard of concrete used in foundations. $35.42 Thirty-five dollars and forty-two cents for every thousand feet, board measure, of hemlock timber and plank, including workman- ship, used in foundations. $47.24 Forty-seven dollars and twenty-four cents for every thousand feet, board measure, of pine timber and plank, including workman- ship, used in public road and farm bridges. $53.14 Fifty-three dollars and fourteen cents for every thousand feet, board measure, of white oak or chestnut timber and plank, in- cluding workmanship, used in public road and farm bridges. 14 cts. Fourteen cents for every pound of wrought iron, including workmanship, used in public road and farm bridges. $37.20 Thirty-seven dollars and twenty cents for every linear foot of bridge superstructure in the four river bridges, built according to the plans and specifications. 4J cts. Four and a quarter cents for every pound of wronght-iron chairs used in the permanent tracks of said road. 4J cts. Four and a quarter cents for every pound of railroad spikes used in the permanent tracks of said road. 35 cts. Thirty-five cents for every cross-tie of white oak oi chestnut used in the permanent tracks of said road. $825.00 Eight hundred and twenty-five dollars for every mile of single railway of two tracks laid ; includes the hauling and distributing of the iron rails, chairs, spikes, and castings from White House ; hauling and distributing the cross-ties from heaps one mile apart; laying the cross-ties; cutting, laying, straightening and spiking 268 ABBOTTS' FORMS. Railroad Construction Contract. rails ; filling track with sand or gravel ; removing surplus eartli ; opening side ditches, and trimming and dressing the road-bed complete according to the specifications contained in this contract. $53.12J Fifty three dollars and twelve and a half cents for every ton of iron rails delivered at White House or used in the permanent track of said road, of the pattern furnished by the engineer of the company, and equal to Guest & Oo.'s iron. And for furnishing seventy thousand dollars ($70,000) in cash, as re- quired, towards payment of the right of way, fencing, engineering, etc., the said & Co. agree to receive in payment full stock of the said Central Railroad Company of New Jersey at par. And in addition to the prices above stipulated, the said Central Railroad Company of New Jersey hereby agree to pay to the said & Co., contractors, a bonus of thirty thousand dollars ($30,000) in the full stock of the company, payable whenever the above sum of seventy thousand dollars shall have been fully paid in cash, the iron rails deposited at White House and the work com- menced to the satisfaction of the engineer of the company. It is also understood and agreed that the stock for the cash, as advanced, and the bonds for the iron rails, as delivered, shall be paid by the said Central Railroad Company of New Jersey to the said contractors, without any with- holding of 1 5 per cent., as is herein stipulated in relation to all other payments. Payments during tbe progress of the work, excepting as above specified, will be made in the following manner — that is to say, each and every month during the progress of the work the company aforesaid shall pay eighty-five per centum of the relative value of such work as may have been done, or materials delivered, to be estimated as to quantity and value by the said engineer, until the whole of the work hereby contracted for shall have been accepted as completed agreeably to contract, when the balance due shall forthwith be paid the said & Co., their heirs, executors or ad- ministrators. Said payments to be made in the seven per cent, mortgage bonds (not convertible) Of the said Central Railroad Company of New Jer- sey, payable July 1st, 1870, with coupons attached, payable semi-annually. And the said engineer shall be the sole judge of the quality and quantity of all the said work herein specified, and from his decision there shall be no appeal. , And it is hereby further agreed, that if the said parties of the first part shall not, on their part, well and truly perform all the covenants herein contained, said engineer may dismiss them from tbe work, and, in that event, this contract shall become null and void ; and any balance for work done on said road, which would have been due the said parties of the first part, shall he forfeited and shall become the right and property of the corporation. And it is hereby further agreed, that all patent rights and fees connected with the superstructure of the bridges embraced in this contract, are to be paid by the contractors, and if not paid by them, may and shall be kept out and from any moneys due, or which may be due from said corporation to said contractors. It is mutually understood that when the word engineer is mentioned in this contract, it is intended and meant to designate the engineer of tha Central Railroad Company. CONTRACTS. 269 Construction of Engine ; — Steamship. In witness whereof, we have hereunto set our hands and seals, this day of , in the year 18 , in duplicate. [Signatures and seals.] 564. Contract by Officers of Corporation, for Construction of a Locomotive Memorandum of agreement between A. B. and C. D., composing the firm of A. B. & Co., of , and W. X., president of the Company, and Y. Z , treasurer of the Company — viz. : A. B. & Co. agree to build for«the said companies one locomotive engine and tender, as described below, and deliver the same at on or before the day of next, for the sum of dollars, payable in the city of [in the draft of W. X., president, accepted by T. Z., treasurer], at months from delivery, interest being added at seven per cent, per annum. DESCRIPTION OF ENGINE AND TENDER. Both engine and tender to be constructed in the best manner, of the best materials, and the power and efficiency of the engine warranted sufficient to carry one hundred tons, of two thousand pounds per ton, of empty cars on an ascending grade, not exceeding forty feet to the mile, with a curve not less than six hundred feet radius, and at a speed not exceeding ten miles per hour. And the said "W. X., president, and T. Z., treasurer, agree to receive the said engine and tender, when ready for delivery as aforesaid, and to pay therefor the said sum of dollars, in the draft so accepted, interest being added as aforesaid. In witness [etc., as in Form 557]. 565. Contract for the Construction of a SteamsMp. Tars agreement, made this day of , one thousand eight hundred and , between A. B. and 0. D. (doing business in the city of , under the firm-name of B. & Co.), shipbuilders, of the first part, and "W. X., of . and Y. Z, of , of the second part, Witnesseth, that the parties of the first part, in consideration of the agreements herein made by the parties of the second part, agree, with the parties of the second part,* I. That they will construct, build and complete, for the said parties of the second part, a steamship of the dimensions and materials mentioned in the specification hereunto annexed, and in all particulars conforming to the said specification and to the directions which may be given by the superin- tendent of such building herein named, for the sum or price of dol- lars, to be paid therefor as hereinafter mentioned ; the said steamship 1 d be launched on or before the day of next, and so soon as launched to be placed at the disposal and under the direction of the said superintend- ent, at , for the purpose of receiving her engines and machinery, and 270 ABBOTTS' FORMS. Contracts for Construction of Vessel*. thereafter to be fully completed as soon as the said superintendent shall re- quire. II. That they will furnish all the materials for the said steamship ac- cording to the said specification, excepting only such as by the express terms of the said specification are to he furnished by the owners (the par- ties of the second part), the whole to be built and constructed of materials of the be-t quality, and in the best and most workmanlike manner ; and, in every particular which is not specifically named and provided for in the said annexed specification, the said steamship shall be built and constructed of such materials, and in such proportions of each, and in such manner, in every respect, as the said superintendent may direct. III. The parties of the second part, upon condition of the true and faith- ful performance of all things herein agreed by the parties of the first part to be done and performed, do hereby agree to pay to the said parties of the first part, for the building of the said steamship, the said sum of dol- lars by instalments, as the materials therefor are delivered and the work progresses; the first payment to be made when the keel is laid, and the 'other payments at the end of every month successively thereafter, and the amount of such payments respectively to be in the same proportion to the whole amount to be paid, which the work done and materials, delivered shall bear to the whole work and materials required for the full perform- ance of this agreement by the parties of the first parti IV. Anil it is hereby mutually agreed, that the above named W. X. shall have the superintendence and direction of the building and construction of the said steamship, as the superintendent herein above and in the said speci- fication named. In witness [etc., as in Form 557]. 566. Contract for the Construction of Engines for a Steamship. [As in the preceding Form to the *, continuing thus ;] I. That they will furnish all the materials for, and will construct, build and complete, finish, set up, secure and perfect in all their parts, and with all their appurtenances ready for sea, for the said parties of the second part, two side-lever low-pressure steam marine engines, with four boilers of the dimensions, materials and workmanship mentioned in the specification hereto annexed, and in all particulars conforming to the said specification and to the directions which maybe given by the superintendent of such construction in the said specification named, and with all the tools, fixtures and appurtenances therein mentioned or referred to, or to the same properly belonging or appertaining. II. That said engines and boilers, with all their said tools, fixtures and appurtenances, shall be put up, secured and fully completed in readiness foi sea, on board. of a steamship now building for the parties of the second part, by Messrs. M. K". & Co., of the city of , and shall be, in every respect, ready for use on or before the day of , one thousand eight hundred and III. That a 1 ! of the materials c or the said engines and boilers, with the CONTRACTS. 271 Patent Rights. tools, fixtures and appurtenances, shall be furnished by them of the descrip- tion in nil respeots conforming to the said specification, and of the best quality ; and that the whole shall be built, constructed, put up, secured and fully completed in the most workmanlike manner. IV. That in every particular which is not specifically named and pro- vided for in the said hereto armexed specification, the said engines, boilers, tools, fixtures and appurtenances shall be built, constructed, put up, secured and fully completed of such materials, and in such manner in every respect, as the said superintendent may direct. V. That they will progress with the said work with such rapidity as shall, in the judgment of , the engineer mentioned in the said specifi- cation, be sufficient to insure the completion thereof by the times above appointed. VI. And the said parties hereto of the second part, upon condition of the true and faithful performance nf all things herein agreed by the parties of the first part to be done and performed, do hereby agree to pay to the said parties of the first part therefor, the sum of dollars, by instal- ments, as follows — to wit: dollars (part thereof) is paid simultaneously with the execution of these presents, and the receipt thereof is hereby ac- knowledged by the parties of the first part; dollars is to be paid on the day of next [etc., etc.] ; and the residue of dollars so soon as the said steamships are in all respects fully completed, and the said engines, boilers, fixtures and appurtenances proved by a satisfactory trial to be constructed, built, put in, secured and completed in all respects ac- cording to the provisions of this agreement and the said specification. VII. And the said parties of the second part, in like manner, further agree to pay the patentee or owner of the patent for the privilege of u^ing which- ever cut-off. mentioned in the said specification, the superintendent may direct to be used on the said ship. VIII. And the said parties of the second part, in like manner, further agree to pay to the parties of the first part, when the ships are completed as aforesaid, for the sheet-iron work in the coal-bunkers and the coal- scuttles to the same, after the rate of cents per pound, of finished work ; and for cast-iron work to the same, per pound, of finished work. Iu witness [etc., as in Form 557]. 567, Contract for the Right to Manufacture a Patented Article, Paying a Tariff to the Patentee. This aokeement, made this day of ,18 , between A. B., of , patentee, of the one part, and Y. Z., of , manufucturer, of the other part, witnesseth : Whereas, A. B. is proprietor of an invention for [h-ere describe it], and of letters patent issued therefoi 1 by the United States of America, "bearing date the day of , 18 ; and whereas the said A. B., for the considerations hereinafter contained, hath agreed with^ the said Y. Z. to license and authorize the said Y. Z., his executors, adminis- trators and assigns, to make and vend the patented articles specified in the 272 ABBOTTS' FORMS. Contracts respecting; Patents and Copyrights. said patent, during the continuance of the said patent, or any renewal thereof, in manner hereinafter particularly specified : Now, in pursuance of the said agreement, and in consideration of the covenants and agreements herein- after entered into on the part of the said Y. Z., and in consideration of dollars paid to the said A. B. by the said Y. Z., the receipt whereof is ac- knowledged, the said A. B. doth hereby give and grant unto the said Y. Z , his executors, administrators and assigns, during all the residue of the term of by the said letters patent granted, and yet unexpired [and also during all such future term or terms, as may be hereafter granted, by way of any new patent, or renewal of the now subsisting patent or otherwise], full and free liberty, license, power and authority to make, vend or sell, either wholesale or retail, within [here specify the limits] the said invented and patented articles, and to receive to his and their own use all profits and advantages which shall or can be made by the making and selling of the said patented articles within the said limits, and that without any let, suit, trouble or hindrance of, from or by him, the said A. B., his executors or administrators, or any other person or persons claiming to hold and use such invention as aforesaid, from, by, under or in trust for him or them, by virtue of the said letters patent, or otherwise. And the said A. B., for himself, Ms executors, administrators and assigns, hereby covenants with the said Y. Z., his executors, administrators and assigns, that he, the said A. B , his executors, administrators and assigns, will not at any time during the residue of the said term, or any such future term, grant any license to any other person to make or vend the said ar- ticles within the aforesaid limits, without the special license and consent of the said Y. Z., his executors, administrators or assigns, in writing, under their hands, first had and obtained. And it is further agreed between the said parties, that in case any person shall infringe the said letters patent [within the said limits], the said Y. Z., his executors, administrators and assigns, may at his or their option, in the name of the said A. B., his executors, administrators and assigns, and for his and their benefit, commence, sue and prosecute all such suits or actions as shall be judged expedient, against any person or persons who shall make such infringement; and for this purpose, the said A. B. constitutes the said Y. Z., his executors, administrators and assigns, the lawful attorney irrev- ocable of the said A. B., at the costs and to- the use of the said Y. Z., his executors, administrators and assigns, to commence and prosecute in the name of the said A. B. all such suits and actions as aforesaid. In witness [etc., as in Form 557]. 568. Contract Between Author and Publisher for Publication of a Booh Upon a Copyright. Memorandum of agreement made this day of , one thousand eight hundred and , between A. B., of , author, party of the first part, and Y. Z. <& Co., of , publishers, parties of the second part. Whereas the party of the first part has in preparation a work entitled for the publication of which the parties are desirous to provide: CONTRACTS. 273 Eespecting Copyrights. It is agkeed by the parties hereto, contracting for themselves and their personal representatives and assigns, respectively, as follows : The party of the first part gives to the parties of the second part the ex- olnsive right to publish, during the full term of the copyright thereof [each volume of] said work, and upon the following terms : The parties of the second part shall take out a copyright [upon each vol- ume] of said work, in due form of law, in the name of the party of the first part, in the district of his residence, and deliver to him the certificate there- of, and receipts for the volumes required by law to be deposited, which copyright he shall hold subject to this contract. They shall deliver to him, free of cost, copies [of each volume] of said work. They shall publish said work in good style, as soon as practicable after receiving the manuscript, and in such manner as they shall deem most ex- pedient, and shall keep the market at all times fully supplied therewith. They shall render to him, semi-annually, as soon as practicable after the day of and the day of in each year, an account of the number of copies [of each volume] of the work which they shall have sold during the six months preceding such day, accompanied by the certificate of the printer to the number printed [or, and shall exhibit to him, on re- quest, their manufacturer's hooks, showing the numbeT printed] during the same period ; and they shall at the same time pay to him for copyright, for all copies sold by them as aforesaid, per cent, of the regular retail price. In case the parties of the second part fail to perform either of the condi- tions of this contract on their part, the right to publish the work shall re- vert to the party of the first part ; and he shall then have the right of pur- chasing the plates [and engravings] then used in publishing the work, at a fair valuation. In witness [etc., as in Form 557]. 569. Contract for Sale of Manuscript and Copyright. Memorandum of agreement made this day of , 18 . between A. B., of , author, party of the first part, and Y. Z., of , pub- lisher, party of the second part, witnesseth: that said party of the first part, in consideration of the sum of dollars, agrees to sell, and does sell, to the party of the second part, the manuscript of a work entitled , written and to be prepared for the press by him ; and he, the said A. B., also agrees to examine and correct the proof-sheets thereof, as they shall be furnished to him from time to time during the printing or stereo- typing thereof. The said Y. Z. and his personal representatives and assigns are to have the exclusive right to take out and own the copyright and the renewals of the copyright thereof. And the said Y. Z., for himself, his per- sonal representatives and assigns, agrees to pay the said A. B. in the man- ner following : dollars on the signing of this contract, dollars when the whole copy, including the index, shall be ready for the printer, and the balance when the proof-sheets shall have all been corrected and returned 18 274 ABB OTTS' FORMS. Contrnct for Publication. to the printer ; and also agrees to furnish to the said A. B. bound copies of the work within a reasonable time after the said A. B. shall have completed his labors; the whole of said proof-sheets to be furnished the said A. B. within a reasonable time after the delivery of the manuscript. And it is further agreed, that in case the said work shall fall short of pages of the size and style of the work known as , exclusive of index and contents, then the said A. B. is to receive, and the said Y. Z. is to pay, a sum so much the less, in proportion to the actual number of pages ; but in case said work shall contain more than pages, the sum to be paid therefor is not to be increased. In witness [etc., as in Form 557]. 570. Contract Between Printers and Publishers for Publication On Joint Account. Memoeaudum of agreement, made this day of , 18 , between A. B., of , printer, of the first part, and Y. Z. and "W. X, composing the firm of Z. & Co., of , publishers, of the second part : "Wiieeeas the party of the first part is the proprietor of the works of , and whereas the parties of the second part are desirous of becoming the pub- lishers of the same, the following points are agreed to, by and between the contracting parties : 1. The profits of each volume shall be equally divided between the two parties to this contract, said profit consisting of the difference between the actual cost of manufacturing each volume, and the wholesale price of the same, said price to be fixed permanently, so far as this contract is con- cerned, at cents, and the party of the second part agrees to sell the books at that price, except in small lots of less than , and on trade account. The cost of manufacturing shall be made up by said party of the first part by charging the paper used at cost, the printing at his usual rates for works of a similar class, and according to numbers ordered, and the regular price for folding, collecting, waste leaves and tissue paper, adding thereto the cost of plate paper, printing plates, cases and any other expense that would legitimately belong to the manufacture of the book. 2. The expense of circulars and advertising of the series to be divided equally between the two parties hereto, an accurate account to be kept o. the same, and rendered on the days of and in each year, the balance due from either party to be paid to the other in cash. The extent of advertising, and the amount to be expended for circulars and advertising, to be regulated by mutual agreement. 3. The party of the first part agrees to abate the copyright and use of plates, on all copies of each new volume given for editorial purposes, to the number of copies, said abatement to be made on settlement of adver- tising accounts, on the days of and of each year, an accurate account to be kept of what copies are presented, and to whom given, by the party of the second part. 4. The party of the second part to take of each new volume as issued, copies and of subsequent editions copies. CONTRACTS. 275 Sales of Chattels. 5. Payments to be made by the party of the second part to the party of the first part, by note at months from average time of the delivery of the books. 6. The books to be made in the same style, and uniform with, and not inferior in quality to, the volun.33 as formerly published by 7. All copies of the books delivered in sheets, or folded and collected, to the party of the second part, to be subject to the proper deductions for binding. 8. The party of the first part, in consideration of the above, agrees to give to the party of the second part the exclusive right to publish the same. It is understood and agreed that this contract shall be in full force and binding for the term of three years from this date, and thereafter, until one party shall have given to the other ono year's notice in writing, signifying their wish to annul this contract ; and in case no satisfactory arrangement can be made for the settlement of each party's interest in the same, an arbitrator shall be chosen by each party, which said arbitrators shall choose a third arbitrator, and their decision in the case shall be final and binding on all parties. In case of the insolvency or death of the party of the first part, or the insolvency or such dissolution of the firm of the party of the second part, as shall unfavorably affect their standing and credit, it shall be considered the same as though the three years had expired, and the one year's notice of desire to terminate the contract had been given, and ar- bitrators shall be appointed to settle the matter as provided above, if the parties or their executors cannot agree to a settlement. In witness [etc., as in Form 557]. 571. Agreement for Sale and Purchase of Personal Property. This agkeement, made this day of , 18 , between A. B., of , farmer, and T. Z., of , merchant, witnesseth : That the said A. B., in consideration of the agreement hereinafter contained, to be per- formed by Y. Z., agrees to sell and deliver to the said T. Z., at his store- house, in [here specify the goods, and if desired the quality as well as quantity], on or before the day of , 18 . And the said Y. Z., in consideration thereof, agrees to pay to the said A. B. the sum of dollars per , for the said , immediately upon the completion of the delivery thereof. In witness [etc., as in Form 557]. 572. Contract for Sale of Goods at a Price to oe Fixed iy Appraisal. Memoeandum of agreement made this day of , 1 8 , between A. B., of , and Y. Z., of , witnesseth : That it is hereby agreed by the said parties, that all and singular the household goods, furniture and stock in trade, which are the property of A. B., and contained in and belonging to the store and dwelling now occupied by the said A. B. [or, which are mentioned in the schedule hereunto annexed], shall, at the joint and equa' charge of the said parties, be appraised by M. N. and 0. P., on 276 ABBOTTS' FORMS. Contracts for Sale of Personal Property. or before the day of next, when the said M. N. and O. P. shall, in writing by them signed, give in their appraisement to the said parties; and in case the said appraisers shall differ in such valuation, then a third indifferent person chosen by them as an umpire shall determine the same, whose valuation in writing by him signed shall be given in to the said parties, within three days after his election. And the said A, B. covenants with the said Y. Z. that, immediately after such valuation being made, he will make and deliver an absolute bill of sale, of all the said goods, furniture and stock in trade, and will give possession thereof unto the said Y. Z., at the price the same shall be appraised at as aforesaid. And the said Y. Z. hereby covenants with the said A. B., that he will accept the said property at such price, and, on the delivery thereof with the bill of sale, will pay tc the said A. B. the sum of money at which the same shall be appraised as aforesaid. In witness [etc., as in Form 557]. 573. Contract for Sale of Stock of Goods and Good-will of Business, With Covenant in Restraint of the Vendor. This agreement, made the day of , in the year 18 , between A. B., of , and Y. Z , of , witnesseth : That the said A. B., for the consideration hereinafter specified, agrees to sell to the said Y Z., and the said Y. Z. agrees to buy of the said A. B , all the stock of goods, wares and merchandise belonging to the said A. B., and now being in the store occupied by him in , together with the furniture and fixtures thereunto appertaining, and also all the merchandise of every name and nature, bought or contracted for by the said A. B., and intended for sale in the said store, and the good-will of the business heretofore carried on there by A. B. The stock of goods, wares and merchandise is to be in- ventoried to the said Y. Z. at the original cost, without including trans- portation expenses ; and deduction is to be made for any depreciation in value on account of damage, wear or tear; and the furniture and fixtures are to be inventoried at their fair cash value. If the parties cannot agree as to such valuation and deduction, the same shall be [here may insert clause as to appraisal, as in Form 572]. Said inventory is to be completed within days from the date hereof, and the property above specified delivered to the said Y. Z. immediately thereupon, or upon the completion and delivery of the appraisal. In consideration thereof, the said Y. Z. agrees to execute and deliver to the said A. B., upon delivery of said goods, as full payment of [or, to secure the payment of] the purchase-money of the same, his promissory note or notes, in such several sums as the said A. B. shall direct, payable at months after date, at the Bank, with interest [and indorsed by M N., of ]. And the said A. B. further covenants and agrees to and with the said Y. Z., that he will not, at any time hereafter, engage, directly or indirectly, or concern himself, in carrying on or conducting the business of , either as principal, agent or servant, within of the aforesaid premises now occupied by him as aforesaid for such purpose. CONTRACTS. 277 Sale of Stool: ; — of Lands. And it in expressly understood that the stipulations aforesaid are to apply to, and to bind the heirs, executors and administrators of the respective parties ; and in case of failure, the parties bind themselves, each unto the other, in the sum of dollars, as liquidated damages, to be paid by the failing party. In witness [etc, as in Form 567]. 574. Agreement to Sell Shares of Stock in a Corporation or Joint-stock Company. This agreement, made the day of , 18 , between A. B., of , merchant, and Y. Z.. also of said place, broker, witnesseth: That the said A. B. agrees to sell and convey to the said Y. Z., on or before the day of next, shares of the capital stock of the Company, now owned and held by the said A. B., and standing in his name on the books of the said company, and to make and execute unto the said Y. Z. all assignments, transfers and conveyances, necessary to assure the same to him, his executors, administrators and assigns. In consideration whereof, the said Y. Z. agrees to pay unto the said A. B., for such stock, dollars per share [or, the average cash market price of the same, for and during days preceding the said day of , to be determined by the sales made in the board of brokers in ], the same to be payable as soon as the said assignment and the scrip of stock so assigned shall be properly executed and delivered to tht- said Y. Z. In witness whebeof, the said parties have hereto set their hands [and seals] tie day and year first above written. {Signatures, with or without seals.] 575. Contract for Sale of Land. Articles of agreement, made the day of , one thousand eight hundred and , between A. B., of , merchant, of the first part, and Y. Z., of , counsellor at law, of the second part, witness- eth : That the said party of the first part, for and in consideration of the sum of dollars, to in hand paid [or, to be fully paid as herein- after mentioned], has contracted and agreed to sell to the said party of the second part, all that certain piece or parcel of land, situate in the town of , in county and State of [here insert brief descrip- tion— e. g.], known and distinguished on a map made by M. N. of the prop- erty of A. B., as lot number . And the said party of the first part agrees to execute and deliver to the said party of the second part a warranty deed for the said land : provided, and u[*n condition, nevertheless, that the said party of the second part, his heirs or assigns, pay to the said party of the first part, his heirs or assigns, for J e same land, the sum of , lawful money of the United States of America, payable as follows : [the sum of dollars to be deposited in the hands of M. N., on signing this agreement, to be paid over to A. B. on the delivery of the deed], the 278 ABBOTTS' FORMS. Building Loan. Bum of dollars on the delivery of the deed, which is to be at the office of , at , between the hours of and on the day of , and the sum of dollars to be secured by a purchase- money mortgage by said T. Z., payable [here insert terms], together with the personal bond of said Y. Z. for said sum, in the penalty of dol- lars : And the said party of the second part, for himself, his heirs, executors and administrators, does covenant and agree to and with the said party of the first part, his heirs and assigns, that the said party of the second part will pay the said several sums as they severally become due, with tbe in- terest thereof, without deduction of any taxes or assessments whatever. And it is further agreed between the parties to these presents, that if default be made in fulfilling this agreement, or any part thereof, on the part of the said party of the second part, then, and in such case, the said party of the first part, his heirs and assigns, shall be at liberty to consider this contract as forfeited and annulled, and to dispose of the said land to any other person, in the same manner as if this contract had never been made. In witness whereof, they have hereunto set their hands and seals the day and year above written. [Signatures and seals.] Sealed and delivered ) in presence of ) [Signature of witnesses.] 576. The Same ; With Building Loan. This aobeement, made the day of , one thousand eight hundred and , between A. B., of the city of , gentleman, party of the first part, and T. Z., of the same place, builder, party of the second part, witnesseth as follows : The said party of the first part agrees to sell, and „ne said party of the second part agrees to purchase from him, all those certain lots, pieces or parcels of land, situate, lying and being in the ward of the city of , and which, taken together, are bounded and described as follows — to wit: [description] for all the sum of dollars, payable as follows, and on the terms and conditions following — that is to say : Said party of the second part shall forthwith commence on said lots of land the erection of good and substantial dwelling-houses, to be of brick, with brown-stone fronts, three stories, basement and sub-cellar, in height, each of which to be of tbe width of the lot upon which it shall stand, by feet in depth, to be built of good materials and workman- ship, and to conform in all respects to the plans and specifications and drawings of M. IS., architect, as the same have been modified and signed by both of the parties hereto. And to enable said party of the second part to erect and finish said dwelling-houses, and the walks and yards in front and rear of the same, the said party o'f the first part does agree to lend to the said party of the second part, tbe sum of dollars towards the erection and finishing of each of the said houses; and that such loan shall be made at the times and in the manner following — to wit : CONTRACTS. 279 "With Building Loan. $ . — 1. When the first tier of beams are on each and every house and the rear walls are up to the same, dollars. $ . — 2. When the second tier of beams are on each and every house and the rear walls are up to the same, dollars [and so on with each stage at which an advance is to be made], $ . — 9. When each and every house shall be completely finished (including the walks in front and rear yards), ready for oc- cupation, the remaining sum of dollars. And it is further agreed, that the said houses shall be so erected and finished under the direction and supervision of 0. P., who is hereby ap- pointed superintendent for that purpose, and whose certificate in writing, certifying that ihe work has been done to his satisfaction, and that the pay- ment demanded is due, shall first be obtained to entitle the said party of the s.econd part, to the several amounts agreed to be loaned as aforesaid. The expenses of the said shall be borne by the party of the first part. And it is further agreed, that if, at any time, when an advance, on ac- count of such loans, is demanded, there shall be any unsatisfied mechanic's lien or liens affecting the title of said premises, or any part thereof, the amount agreed to be loaned shall not be advanced until such lien or liens are satisfied or discharged of record. And it is further agreed, that when the said houses, walks and yards shall be completely finished, ready for occupation as aforesaid, and when the certificate of the said O. P. shall be produced to that effect, and when all taxes, assessments and Croton water rents, assessed or imposed upon said premises, or any part thereof, after the date of this agreement, shall be paid; and when all liens affecting said premises, or any part thereof, incurred by the said party of the second part, shall be discharged of record, then the said party of the first part shall, on the execution and delivery of the bonds and mortgages hereinafter mentioned, convey the said premises to the said party of the second part, by warranty deed, with the ttsual full covenants, in which deed his wife shall join, and by which the said premises shall be conveyed free from all encumbrances ; that to entitle the said party of the second part to such deed, he shall, at the time of the delivering thereof, execute and deliver to the said party of the first part, bonds and mortgages,, each of which bonds shall be conditioned for the payment of the sum of dollars, and secured by a mortgage of or upon one of the said lots, with the house then erected thereon. All of said bonds and mortgages shall bear date on the day of the delivery of said deed of conveyance, and the money secured thereby shall become due and payable in three years from the date thereof, with intere-st at seven per cent, per annum, to be computed from such date, and to be paid semi- annually, and shall contain the usual interest condition of thirty days. All of said mortgages shall be executed by the said party of the second part and his wife, and shall contain usual insurance covenants that the premises shall be kept insured in an amount to be approved by, and the policies to be as- signed to, the party of the first part. And it is further agreed, that interest at the rate of seven per cent, per 280 ABBOTTS' FORMS. Building Loan. annum shall be paid by the party of the second part to the said party of the first part on the amount of the purchase-money above mentioned, from the date of this agreement, and on the amounts agreed to be loaned from the date of their respective advances to the date of said bonds and mortgages, or such interest may be retained by said party of the first part out of and from the last amount so agreed to be loaned. And said party of the second part shall bear and pay all taxes, assessments and Croton water rents that may be assessed or imposed upon said premises after the date of this agree- ment, as also the costs and charges of E. S., counsellor-at-Iaw, for drawing this agreement and the bonds and mortgages aforesaid. And it is hereby made optional with the said party of the first part to have the amount of the purchase -money and loans secured by more than bonds and mort- gages, provided the same do not exceed two mortgages on each of said "houses and loK And it shall also be optional with said party of the first part to mortgage said premises to the amount of said purchase-money and loans, or any part thereof, and then convey said premises subject to such mortgages, taking from the said party of the second part other bonds to make up the deficiency, if any, of the full amount of said purchase-money and loans, secured by mortgages of or upon said houses and lots, and con- taining the same terms and conditions as the bonds and mortgages first above mentioned. And it is further agreed, that when said houses shall be inclosed and roofs on, said party of the second part shall cause the same to be insured against loss or damage by fire, in an insurance company in the city of , and shall assign the policies of insurance to said party of the first part as collateral security for said purchase-money and loans ; that such insurance shall from time to time be increased as said houses progress in the course of erection until they shall be completely finished ; and that at the time of the delivery of said deed policies of insurance shall be effected on each house and assigned to said party of the first part; and that whenever an insurance is to be made or effected as above provided, it shall be in an in- surance company, and to an amount to be designated and approved by said party of the first part; and in case said party of the second part shall fail to effect such insurance or assign such policy or policies, then the said party of the first part shall effect the same, charge the expense thereof to the said party of the second part, and deduct the same from the next advance or instalment of said loan that shall thereafter become due. And it is further agreed, that the said party of the second part shall not sell, assign or dispose of this agreement, or his interest therein, without the written consent of said party of the first part first had and obtained ; and that said party of the first part shall not be required to make said loan, or any part thereof, or said deed to, or accept the bonds and mortgages of any other party or parties, unless he shall elect so to do. And it is further agreed, that said .party of the second part shall forthwith commence the erection of said houses, shall proceed with the same without unnecessary delay, and shall furnish all materials, and completely erect and finish the same, with the walks and yards thereof, on or before the day of , 18 ; and in case the said party of the second part shall fail to CONTRACTS. 281 Sale of Eeal Property. erect and completely finish the said houses, with the walks and yards thereof, on or by the day of 18 , or in case the work of erecting said houses shall, in the opinion of said 0. P., he unreasonably delayed, or in case the said party of the second part shall sell or assign his interest in or under this agreement without the written consent aforesaid, that then, and in either of such events, the said party of the first part shall have the right, and he is hereby expressly authorized and empowered to sell the whole of said premises, together with the unfinished buildings thereon, at public auction, to the highest bidder, on giving to said party of the second part fifteen days' notice thereof, and on advertising the same for fifteen days in one of the public newspapers printed in the city of , and that at such sale said party of the first part shall be allowed to bid ; which sale shall be a perpetual bar against any claim to be made for any of the said buildings or erections, and any claims under this agreement bv the said party of the second part, and all persons claiming under him ; and he, the said party of the second part, shall forthwith quit and abandon said prem- ises ; and this agreement shall thenceforth cease and determine, except that in case the said sale shall produce an amount more than is sufficient to pay the contract price of said lots and loans which have then been made, and interest and expense of insurance, and costs of sale as aforesaid, the excess shall be paid to the said party of the said second part. And if such sale shall not produce sufficient to satisfy said contract price, loans, interest, expense of insurance and costs of sale, then the said party of the second part shaJ forthwith, and on demand, pay such deficiency to the said party of the first part. And it is further and finally agreed, that the stipulations and agree- ment aforesaid shall apply to and hind the heirs, executors and adminis trators of the respective parties thereto. In witness whebeof [etc., as in preceding form], 577. Contract for Sale of Farm and Mill ; Payment in Instalments. Articles of agreement made this day of , 18 , between A. B. of the town of , in the county of , and State of , of the first part, and Y. Z., of the town aforesaid, of the second part, witnesseth That the said party of the first part hereby agrees to sell to the said party of the second part his house, farm and premises, whereon he now lives, situate in the town of , containing about acres, more or less, together with the crops growing on the same ; all the lumber for the house, all the tools belonging to the saw-mill, all the apparatus belonging to the grist-mill, together with all the fixtures and machinery belonging to the fulling-mill and carding-machine, together with every article attached to the freehold, for the sum of dollars, which the said party of the second part agrees to pay as follows — viz. : dollars upon signing this agreement ; dollars by the day of next; dol- lars on the day of next, and giving a mortgage on the farm whereon he now lives, for dollars, in equal annual pay- ments with annual interest on the same; at which time the said party 282 ABBOTTS' JFOEMS. Special Clauses in Contracts for Sale of Lands. of the first part is to make and execute to the said party of the second part a good and sufficient warranty-deed for the premises hereby sold, upon the delivery of which the said party of the second part is to se- cure the remainder— to wit : dollars by a bond and mortgage for the payment of said remaining sum, in equal annual instalments, with interest semi-annually upon the same, interest to commence on the day of next, at which time the said party of the second part is to have full possession of all the premises. And it is agreed by the said parties, that this agreement is to hind themselves, their heirs, executors and admin- istrators, jointly and severally, firmly by these presents. In witness whekeof [etc., as in preceding form?. 578. Stipulation as to Terms of Purchase-money Mortgage. With the privilege to the party of the second part, at any time before the expiration of said ten years, to pay off said mortgage in whole or in sums of thousand or more dollars at a time, on giving months' notice to the party of the first part of intention so to do, and the bond and mortr gage to contain a clause to that effect. 579. Stipulation as to Time of Talcing Possession and Income. It is further agreed between the said parties, that the said Y. Z. shall be let into possession of the premises on the day of next; but that all arrears of rent and other profits, arising from the said premises, which shall be due and payable on or before that day, shall belong to the said A. B., his heirs or assigns, and that he and they shall have full liberty to collect and. receive the same. 580. Stipulation as to Possession, Taxes, etc. It is further agreed that the party of the first part is to have and retain possession of the premises until the day of next, when the same shall be delivered up to the party of the second part, upqn his compliance with the agreements hereinabove contained ; that the said party of the second part shall pay all taxes and assessments, becoming chargeable to, and upon the said premises, after the delivery of the possession thereof to him as aforesaid ; and that, if default be made in fulfilling this agreement, or any part thereof, on the part and behalf of the said party of the seoond part, then, and in such case, the said party of the first part shall be at liberty to consider this contract as forfeited and annulled ; and if the said party of the second part shall be in the possession of the said premises, at the time of making such default, the party of the first part shall have full and ample right to proceed against the said party of the second part, and remove him therefrom, in the manner now provided by law for the removal of persons forcibly entering into the possession of, and detaining, any lands or other possessions. CONTRACTS. 283 Purchase of Land. Building. 681. Provision that Existing Insurance Shall Inure to the Benefit of the Purchaser. And, in case the house on said premises should he injured hy fire before the said day of , the said A. B. shall hold the said insurance in trust for, and will then transfer the same to the said Y. Z. with the deed of the premises. 582. Contract Between Several Persons to Unite in a Purchase, Each to Bear a Proportion of the Purchase-money and Charges. Whereas we, A. B., of , manufacturer, and C. D., of , farmer, and E. F., of , blacksmith, are desirous to purchase the parcel of land situate in , now in the occupation of M. N. Now we severally agree with each other, that if any one or more of us shall purchase the same [or any part thereof], each of the others of us will pay his respective propor- tion of such purchase-money, and that all charges and expenses relating thereto shall he home by us in equal proportions, and that any such pur- chase shall be for the joint and equal benefit of us all ; provided, however, that the purchase-money for the said parcel of land do not exceed dollars [or in that proportion for a part]. Is witness [etc., as in Form 557]. 583. Agreement for a Lease. This memorandum of an agreement, made this day of ,18 , between A. B., of the city of New York, merchant, and Y. Z., ot said city, merchant, witnesseth that the said A. B. agrees, by indenture, to be executed on or before the day of next, to demise and let to the said Y. Z., a certain house and lot in said city, now or late in the occupa- tion of M. N, known as No. , in Street, to hold to the said Y, Z., his executors, administrators and assigns, from the day of afore- said, for and during the term of years, at or under the clear yearly rent of dollars, payable quarterly; in which lease there shall be con- tained covenants on the part of the said Y. Z., his executors, administrators and assigns, to pay the rent [except that in case the premises are destroyed by fire, the rent is to cease until they are rebuilt by the said A. B ], and to pay all taxes and assessments [except the ground-rent] ; to repair the prem- ises [except damages by fire] ; not to carry on any offensive or other business on the premises, without the written permission of the said A. B. ; to deliver the same up at the end of the term, in good repair [except damages by -fire, as aforesaid] ; with all other usual and reasonable cove- nants, and a proviso for the re-entry of the said A. B., his heirs and assigns, in case of the non-payment of the rent for the space of fifteen days after either of the said rent-days, or the non-performance of any of the covenants. And there shall also be contained covenants on the part of the said A. B., his heirs and assigns, for quiet enjoyment; to renew said lease at the expiration of said term, for a further period of years, at the same 284 ABBOTTS' FORMS. Building Contracts. rent, on the said Y. Z., his executors, administrators or assigns, paying tha said A. B., his executors, administrators or assigns, the sum of dollars, as a premium for such renewal ; and that in case of an accidental fire, at any time during the term, the said A. B. will forthwith proceed to put the premises in as good repair as before such fire, the rent in the mean time to cease. And the said Y. Z. hereby agrees to accept such lease on the terms aforesaid. And it is mutually agreed that the cost of this agreement, and of making and recording said lease, and a counterpart thereof, shall be borne by the said parties equally. In witness [etc., as in Form 557]. 584. Contract for Building. Memorandum of agreement made this day of , one thousand eight hundred and , between A. B., of , merchant, of the first part, and Y. Z., of , builder, of the second part. * The said party of the second part covenants and agrees to and with the said party of the first part, to make, erect, build and finish in a good, substantial and workman- like manner, on the lot belonging to the party of the first part, and known as No. , in Street, one brick stable agreeable to the draft, plan and explanation hereto annexed, of good and substantial materials [or, of such materials as the party of the first part may find and provide therefor], by the day of next. And the said party of the first part covenants and agrees to pay unto the said party of the second part, for the same, the sum of dollars, lawful money of the United States, as follows : the sum of [here state terms of payment], [If the oioner is to furnish materials, add : And also, that he will furnish and procure the necessary materials for the said work, in such reasonable quantities, and at such reasonable time or times, as the said party of the second part shall or may require ] And for the true and faithful performance of all and every of the covenants and agreements above-mentioned, the parties to these presents bind them- selves, each unto the other, in the penal sum of dollars, as liquidated damages to be paid by the failing party. In witness [etc., as in Form 557]. 585. Special Stipulations Which May be Inserted According to the Nature of the Case. The said building is to be completed and delivered to the party of the first part entirely finished and ready for the occupation of tenants on the day o f , 18 , unless such delivery be prevented by accidental fire. The party of the first part may make, or require to be made, alterations in the plan of construction from that herein and in said specification and plan expressed, without annulling or invalidating this agreement ; and, in case of any such alterations, the increase or diminution of expense occa- sioned thereby shaL. He estimated according to the price fixed by these CONTRACTS, 285 Masons' Work of Building. presents for the whole work and materials, and allowances shall be made on one side or the other, as the case may be. If there shall be any delay on the part of the party of the second part, in erecting or completing said building, that in the opinion of the superin- tendent will prevent its being completed on the day herein specified, then the party of the first part may, at his option, either employ persons other than the party of the second part to do the whole or any part of said work, and furnish the whole or any part of said materials, and deduct the cost of the same from the sum hereinbefore agreed to be paid by the party of the first part, or leave the completion of said building unto the party of the second part, and enforce his claim for damages, should said building be not completed on the day herein specified. If the said building shall not be finished, completed and delivered in man- ner aforesaid by the said day of next, the said party of the second part shall forfeit the sum of dollars for each and every day from and after that time during which the said building shall remain unfinished, and not completed and delivered as aforesaid, to be deducted from the sum hereinbefore agreed to be paid by the party of the first part. In case of any disagreement between said parties, relating to the per- formance of any covenant or agreement herein contained, such disagreement shall be referred to three disinterested persons, one to be chosen on each side, and they two to choose another; the decision in writing, signed by any two of whom, shall be final. 586. Contract for Masons' Work of a Building. [As in the preceding form to the*, continuing thus:] 1. The said party of the second part doth hereby, for himself, his heirs, executors and administrators, covenant, promise an< agree to and with the said party of the first part, his executors, administrators and assigns, that he, the said party of the second part, his executors or administrators, shall and will, for the considerations hereinafter mentioned, on or before the day of next, well and sufficiently erect and finish the masons' part of stores, on the lots Numbers and , in street, in the city of , agreeable to the several drawings and speci- fications made by M. N., architect, and signed by the parties hereto, within the time aforesaid, in a good, workmanlike, and substantial manner, to the satisfaction and under the direction of the said architect, or such other architect in good standing as the party of the first part shall select for that purpose, to be testified by a writing or certificate, under the hand of the said architect ; and also shall and will find and provide such good, proper and sufficient materials of all kinds whatsoever, as shall be proper and suffi- cient for completing and finishing all the stone-masons, brickl lyers, plaster- ers, brown-stone cutters, excavators, granite and blue-stone cutters, and other works of the said buildings mentioned in the said specifications, for the sum of dollars. And the said parties of the first part do hereby, for themselves, their heirs, executors and administrators, covenant, promise and agree with and to the said party of the second part, his executors and 286 ABBOTTS' FORMS. Contract for Building. administrators, that they, the said parties of the first part, their executors and administrators, shall and will, in consideration of the covenants and agreements being strictly performed and kept by the said party of tha second part, as specified, well and truly pay, or cause to be paid unto the party of the second part, his executors, administrators or assigns, the sum of dollars, lawful money of the United States of America, in man ner following : [here specify terms of payment.] When all the works are completely finished, according to the plans and specifications, dollars. Provided that in each of said cases a certificate be obtained and signed by the said architect. And it is heekbt further agreed by and between the said parties : 1. The specifications and drawings are intended to co-operate, so that any work exhibited in the drawings and not mentioned in the specifications, or vice versa, are to be executed the same as if it were mentioned in the speci- fication and set forth in the drawings to the true meaning and intentions of the said drawings and specifications, without any extra charge whatso- ever. 2. The contractor, at his own proper costs and charges, is to provide all manner of materials and labor, scaffolding implements, moulds, models and cartage, of every description, for the due performance of the several erec- tions. 3. Should the owner, at any time during the progress of the said build- ing, request any alteration, deviation, additions to or omissions from said con- tract, the same shall be made, and shall in no way affect or 1 make void the contract, but will be added to or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation. 4. Should the contractor, at any time during the progress of the said work, refuse or neglect to supply a sufficiency of materials or workmen, the owner shall have the power to provide materials and workmen, after three days' notice in writing being given, to finish the said work, and the expense ^will be deducted from the amount of the contract. 5. Should any dispute arise respecting the true construction or meaning of the drawings or specification, the same shall be decided by the said M. N., or such other architect in good standing as the party of the 1 first part shall appoint to oversee said buildings, and his decision shall be final and conclusive ; but should any dispute arise respecting the true value of the extra work or works omitted, the same shall be valued by two competent person s— one employed by the owner and the other by the contractor — and those two shall have power to name an umpire, whose decision shall be binding on all parties. 6. The owner shall not, in any manner, be answerable or accountable for any loss or damage that shall or may happen to the said works, or any part or parts thereof, respectively, or of any of the materials or other things used" and employed in finishing and completing the same (loss or damage by fire excepted). 7. Should any claim or claims be made by any person for work done, or materials furnished for the said building, upon the employment, or on the, purchase, or alleged employment or purchase, by the party of the second CONTRACTS. 287 Building Party Wall. part, and a notice of such claim be filed, to create a lien upon said building, Tinder any law of the State, now in force, or which may be in force, the party of the first part shall be at liberty to retain in his hands, out of any moneys which might otherwise be payable to the party of the second part, the amount of such claim or claims, and any reasonable costs and expenses to which he is liable to be subjected by reason thereof, until such claim be cancelled and discharged of record by the party of the second part, who hereby agrees to cause such lieu or liens to be forthwith settled, cancelled and discharged without loss, damage or expense to the parties of the first part, and without any delay in the progress of the work aforesaid. In witness [etc., as in Form 557]. 587. Contract to Build a Party Wall. Memoeatoum of ageeement, made this day of , in the year 18 , between A. B., of the city of , merchant, of the first part, and Y. Z., of said city, merchant, of the second part: Wheeeas the said A. B. is the owner in fee of the lot known as No. in street, in-the ward of the city of , and the said Y. Z., the owner in fee of the lot known as No. in said street, immediately adjoining to and on the side of said lot, on which lots respectively the parties are about to erect brick houses. And whereas, it has been agreed between them, that the said Y. Z., in erecting his house may make use of the wall of the said A. B., immediately adjoining the said lot of the said Y. Z., as a party wall, upon the terms, conditions and considerations hereinafter men- tioned, the wall so to be used as a party wall, standing and being entirely on the said lot of the said A. B. Now, theeefobe, this agreement witness- eth, that the said party of the first part, in consideration of the sum of dollars, to him in hand paid by the party of the second part, the re- ceipt whereof is acknowledged, shall immediately build and erect a wall on the side of said lot No. , so that the side of said wall shall adjoin the side of said lot of Y. Z. ; said wall shall be built feet deep easterly from the easterly side of street, and high above the sidewalk ; and the said party of the first part hereby does grant and convey to said party of the second part the right to use said wall as a party wall, in the erection of a house on the said lot No. , and for that purpose to insert the beams of the house on the said lot into the walls so to be built by the party of the first part, to the extent of inches, and to insert two chimney-backs into said wall to the extent of inches each, and, for the same purpose, to insert or tie the courses of the front and rear walls into said party wall as may be necessary, and to keep and maintain such use of said party wall so long as said wall shall stand. And the parties mutually covenant, that if it shall hereafter become ne- cessary to repair or rebuild the whole, or any portion of the said party wall, the expense of such repairing or rebuilding shall be borne equally by them, their respective heirs and' assigns [as to so much and such portion oi said wall as the said Y. Z. his heirs and assigns, shall or may use for the 288 ABBOTTS' FORMS. Contract for Changing. purposes aforesaid] ; and that whenever the said party wall, or any portion thereof, shall be rebuilt, it shall be erected on the same spot where it is to stand, and be of the same size, and the same or similar materials, and of like quality. It is further mutually agreed between the said parties, that this agree- ment shall [be perpetual, and] at all times be construed as a covenant run- ning with the land; but that no part of the fee of the soil upon which the wall of the said A. B., above described, is to stand, shall pass to or be vested in the said Y. Z , his heirs or assigns, by virtue of these presents. Lsr witness [etc., as in Form 557]. 588. Agreement for Changing Mortgage Security. This agreement, made this day of , 18 , between A. B., of , and Y. Z., of , witnesseth : That whereas the said A. B. hath this day sold and conveyed unto the said Y. Z. certain lands, situate in the village of ; and, in order to secure the payment of the sum of dollars, part of the consideration therefor, the said Y. Z. has ex- ecuted and delivered to the said A. B. a mortgage upon said premises, to- gether with his bond for the payment of the said sum : and whereas it is the intention of the said Y. Z. to divide the said premises into village lots, and to sell and convey the same to third persons : Now, theeeeoke, the said A. B., in consideration of the premises, does for himself, his heirs, ex- ecutors, administrators and assigns, covenant and agree to and with the said Y. Z., his heirs, executors, administrators and assigns, that he and they shall at all times hereafter have the right of changing the security above mentioned, by substituting, instead of the same, ,or of any part thereof [here specif y the substituted security allowed]; and that he, the said A. B., his heirs, executors, administrators or assigns, will, upon request to him or them made, forthwith execute and deliver to the said Y. Z., his heirs, ex- ecutors, administrators or assigns, a good and sufficient discharge of the said mortgage [or, good and sufficient releases of the lien upon any portion of the premises therein described], whenever the said Y. Z., his heirs, ex- •ecutors, administrators or assigns, shall furnish the said A. B., or his repre- sentatives, as aforesaid, with such other security as above mentioned. In witness [etc., as in Form 557]. CORONERS. 289 Oaths of Jurors. Subpoena. CHAPTEE XXIV. CORONERS. The duties of coroners are prescribed in detail in the statutes. The follow- ing forms relate to proceedings in cases of inquests held by them. ! PAGE 589. Oatli of the foreman of a coroner's jury 289 590. Oath of other jurors 289 591. Subpoena for witnesses 289 592. Attachment against a witness not appearing 290 598. Oath of witness on coroner's inquest 290 594. Examination before coroner and jury 290. 595. Inquisition 290 596. Warrant of coroner for arrest of person charged by the inquest 291 589. Oath of the Foreman of a Coroner's Jury. You do swear that you will well and truly inquire how, and in what manner, and when and where, the person lying here [or, whose body you have just seen], came to his death [or, was wounded], and who such per- son was, and into all the circumstances attending such death [or, wound- ing], and by whom the same was produced; and that you will make a true inquisition thereof, according to the evidence offered to you, or arising from the inspection of the body. So help you God. 590. Oath of Other Jurors. The same oath which A. B., the foreman of this inquest, hath on his part taken, you, and each of you, do now take, and shall well and truly observe and keep, on your parts. So help you God. 591. Subposna For Witnesses. The People of the State of New York to [here designate the witnesses]. We command you and each of you, that all business and excuses being laid aside, you be and appear before the subscriber, one of the coroners of the county of , at the house of , in the town of forthwith [or, at o'clock ia the noon of the day of , 18 ], to testify and give evidence upon an inquest then and there to be had upon the body of M. N., deceased [or, a person whose name is unknown] [or, upon the examination of J. K , charged upon inquest with the murder of M. N.] ; and hereof fail not at your peril. Witness my hand, this day of , 18 . [Signature of] Coroner 19 290 ABBOTTS' FORMS. Attachment against Witness. Examination. Inquest. 592. A ttachment Against a Witness Not Appearing. The People of the State of New York to the Sheriff or to any Constahle ot the county of : We command you that you attach [name witness], and forthwith briDg him before the subscriber, one of the coroners of said county, at the house i if , in the town of , in said county, to testify and give evidence upon a certain inquest [setting it forth as in the above svbpmna], and also to answer all such matters as shall be inquired of him, for that he having been duly subpoenaed to attend upon such inquest, has refused and neglected to attend in conformity to such subpoena ; and have you then and there this writ. Witness my hand, this day of , 18 . [Signature of} Coroner. 593. Oath of Witness on Coroner's Inquest. The evidence you shall give upon this inquest, touching the death of M. NT. [or, the person whose body has been viewed], shall be the truth, the whole truth and nothing but the truth. So help you God. 594. Examination Before Coroner and Jury. State of , ) > 8S County of . ) Examination of witnesses produced, sworn and examined, on the day of , at , in said county, before me, C. R., one of the coroners in and for the said county, and A. B., 0. D. [etc., naming the jurors], good and lawful men of the said county, duly sworn upon their oaths to inquire into all the circumstances attending the death of one M. IT. [or, a person unknown], then and there lying dead, and by what means the same was produced, and in what manner, and when and where he came to his death. [And then proceed with the testimony of the witnesses]. I do hereby oEETiFT that the foregoing is a correct statement and accoutfe of an examination taken by and before me, and the jurors aforesaid, at the time and place aforesaid, and of the testimony of the several witnesses pro- duced, sworn and examined thereupon. Given under my hand, this day of , 18 . [Signature of] Coroner. 595. Inquisition. State of , ) County of . J An inquisition taken for the people of the State of , at the house of , in the town of , in said county of , on the day A ,18 , before me, C. R., one of the coroners in and for said county, upon the view oi 'he body of M. N. [or, a person unknown], then and there CORPORATIONS. 291 Arrest by Coroner. Formation of Corporations. lying dead, upon the oaths of A. B , 0. D. [etc., naming the jurors], good and lawful men of the said county, who, being duly sworn to inquire, on the part of the People of said State, into all the circumstances attending the death of the said M. N. [or, person unknown], and by whom the same was produced; and in what manner; and when and where the said M. N". [or. person unknown] came to his death, do say, upon their oaths, as afore- said, that [here state the facts as found by the jury]. In witness whereof, as well the said coroner, as the jurors, aforesaid, have to this inquisition set their hands and seals, on the day of the date of this inquisition, as aforesaid. [Signatures and seals of coroner and of jurors.] 596. Warrant of Coroner for Arrest of Person Charged By the Inquest. The People of the State of' , to the sheriff [or, any constable], of the county of , greeting : Whereas, by the inquisition of [he?-e name jurors], good and lawful men of said county, taken upon their several oaths before me, one of the coroners in and for said county, at , in the town of , in said county, Y. Z., is charged with having feloniously murdered and killed M. N., on the day of , 18 , at . Toe ake, theekfohe, hereby commanded, in the name of the People of the State of , forthwith to arrest the said Y. Z., and bring him before me forthwith at , to be dealt with according to law. Given under my hand, this day of ,18 . [Signature of] Coroner. CHAPTEE XXV. OOEPORATIONS. In the United States, corporations are formed either by virtue of special charters granted for each case by the legislature of the State, or by Congress. or under the sanction of general laws such as have been adopted in many oi the States, which permit voluntary 'organizations to assume a corporate exist- ence for particular purposes. The mode of forming corporations in the latter way, is shown in the chapter on Manufacturing Corporations, etc. Proceedings peculiar to Religious Corporations, will be found under that title. L Stock and dividends. paoh 597. Preliminary engagement to take stock in a corporation to be formed. 292 698. Certificate of stock 292 599. Transfer of stock 292 600. Power to transfer 298 601 Power to collect dividend 298 292 ABBOTTS' FORMS. Stock in Corporation. II. Elections. page 602. Oath of inspector 293 60S. Oath of stockholder of a moneyed corporation when challenged . . . 293 604. Proxy 294 605. Affidavit to be annexed to proxy to enable voting at an election in a moneyed corporation 294 I. St) This form is given by statute. Code of 184S, 503, eh. 117, § 1, and will pass all the estate, right, title and interest of the grantor, both at law and in equity. lb., % 2. (j) lr. Vibginia, the conveyance of land, unl„-8P *n exception be made, includes all bui'jirgs, privileges and appurtenances of ev,rv kind. Code, 503, § 7. (r) -t must oe stated in the body of the instrument, or in the attestation of the witnesses, that it is sealed. Austin v. Whitlock, 1 Munf., 487 ; Buohner ». Mao- kay, 2 Leigh, 488. («) This word has the same effect as if it were expressed that the covenant is for his heirs, personal representatives and as- signs, and to and with the covenantee, his heirs, personal representatives and as- signs. Code, 505, § 9. (t) This is equivalent to a covenant that he has not done or executed or know- ingly suffered any thing, whereby any part of the premises may bo affected. lb., §16. 332 ABBOTTS' FORMS. Deeds for Virginia; — Wisconsin. that he will warrant generally the property hereby conveyed(w) [or. -will warrant specially the property hereby conveyed](«) ; that he has the right to convey the said land to the grantee ;(w) that the grantee shall have quiet possession of the said land(a;) [and may add, free from all encumbrances \](y) that he will execute such further assurance of the said lands as may be requisite, (z) 670. Deed of Trust to Secure Debts, etc.{a) This deed, made the day of , in the year , between [the grantor], of one part, and [the trustee], of the other part, witnesseth, that the said [the grantor] doth [or, do] grant unto said [the trustee] the following property : [here describe it], in trust to secure [here describe the debts to be secured or the securities to be indemnified, and insert covenants or any other provisions the parties may agree upon]. Witness the following signatures and seals. [Signatures and seals.] 671. Deed of Life Estate.(b) [As in Form 666 or 667, inserting after the description of the property :] To have and to hold and enjoy all and singular the said lands and appur- tenances, for the natural life of the said Y. Z. ■Wisconsin. [Conveyances may be made by deed, signed and sealed by the person from whom the estate or interest is intended to pass, being of lawful age, or by his lawful agent or attorney, and acknowledged, or proved and recorded. DeedB executed within the State, of lands therein, shall be executed in the presence of two witnesses, who shall subscribe their names to the same as such.(c) Deeds executed without the State may be executed according to the laws of the place. A scroll or device, whether written or printed, if used as a seal, is sufficient in any case, except where official seals are provided by law.]((Z) («) This is effectual as a warranty (y) This is equivalent to the full cove- against the claims of ad persons whomso- nant against encumbrances. lb., § 14. ever. Ode, 505, § 10. («) This is equivalent to the full covo- (v) This is effectual as a warranty nant for further assurance. lb., § 15. against the grantor and all claiming by (o) This form is given by statute. Code or under him. lb., § 11. 07' 1849, 508, § 5. (w) This is effectual as a covenant of (6) This form is sustained by Hum- good right, full power and absolute au- phrey *. Foster, 18 Gratt., 653. The thority to convey the premises and ap- habendum controls the grant, purtenances according to the intent of (c) Rev. Stat., 1858, 587, §§ 1, 8, 9, 11. the deed. /*., 1 13. (&) Rev. Stat., 1858, 543, § 89. Wil- (x) This is equivalent to the full form liams v. Starr, 5 Wise., 584. of the usual covenant for quiet possession. lb.. S 14. DEEDS. 333 Forms Applicable in all the States. IT. Forms Generally Applicable. [These forms, though chiefly based on the law and practice of the State of New York, are appropriate to the practice in many other States ; and are, it is believed, valid and sufficient forms in all of the States for the cases to which they are adapted. Most of the States in which peculiar forms are in vogue are noticed in alpha- betic order above.] 672. Formal Indenture, (e) This nrDBNTtrBB, made the day of , in the year one thousand 1 eight hundred and , between A. B., of , in the county of , and State of , merchant, of the first part, and T. Z., of , in the said county, farmer, of the second part, witnesseth [here will follow the provisions of the instrument, concluding thus:] In witness whereof, to one part of these presents, remaining with the said parties of the first part, the said parties of the second part have affixed their hands and seals; and to the other part thereof, remaining with the said parties of the second part, the said parties of the first part have can-ed the common seal of the said city of to be affixed the day and year first above written. Signed, sealed and delivered ) [Signatures, etc., accordingly.] in presence of i [Signature of witness.] (c) The distinction between deeds in the form of indenture and those in form of deed-poll, has now no essential legal importance. The practice ill some States has adopted one, in some the other form. Technically, an indenture, the form 'of which is given above, was an instrument executed by two or more parties, contain- ing provisions binding each one to the other ; and it was originally deemed es- sential that the instrument be written in two copies upon different parts of the same parchment, and then the parts were cut asunder in a waving or notched line. Hence the name " indenture." One copy was sealed by one party, who delivered it to the other party, and received from the latter in turn the other part, with his seal thereon. In modern conveyancing, indenting is unnecessary ; and with us the term inden- ture does not imply any thing more than that the instrument (being of course under seal) is not a mere grant, but contains matter intended to bind both parties. In- deed, the word is often used in the head- ing of a mere grant, which formerly would have been called a deed-poll. And where an indenture for the conveyance of land is executed by both parties to it, it is usual to make but one instrument, and to deliver it to the grantee ; for the practice of recording deeds leads to dispensing with a counterpart. It is only where two copies are made, one to be signed by each party, and interchangeably delivered, that the above form is used. Where a deed is thus interchangeably executed, each part is the deed of both. Dudley v. Sumner, 5 Maes., 488. 334 ABBOTTS' FOKMS. Deeds Applicable in all the States. 673. Deed-Poll.(f) To all people to whom these presents shall come, A. B., of , and 0. D., of , send greeting: Know te, that the said A. B. and 0. D. [here will follow the provisions of the instrument, concluding thus :] In witness whbeeof, we have hereunto set our hands and seals, this day of , 18 . Signed, sealed and delivered) [Signatures and seals of the grantors.'] in the presence of J [Signature of witness.'] 674. Short Form of Deed in Fee.(g) I, A. B., in consideration of one dollar to me paid by 0. D., do bargain and sell [or, in New York, grant] to C. D. and his heirs [in New York, Vir ginia, etc., the words and his heirs may be omittedQi)] the lot of land [de scribe it]. Witness my hand and seal, etc. 675. Quit-Claim Deed.ii) Know all men by these presents, that I, A. B., of the city of , in the county of , and State of , farmer [or, we, A. B., of, etc., as (/) A deed-poll, as a deed by which but one pnrty made a grant, or bound himself to the other party, was formerly called, was so designated because the parchment was out straight at the top, in- Btead of being indented as a deed inter- changeably executed. The distinction, though anciently insisted on, is no longer of any consequence. The use of printed forms and the practice of recording deeds has resulted in the custom of executing but one instrument, which frequently has the words appropriate to an indenture, without reference to the character of its provisions. (g) This form, which is known as Chan- cellor Kent's deed, is given in his com- mentaries (vol. 4, p. 461), as in his opinion perfectly competent, in any part of the United States, to convey the fee. It is further sustained by Huchina ■». Carleton, 19 M. II., 487; Bridge v. Wellington, 1 Man., 219 ; Fairley s. Fairley, 84 Miss. (Geo.), 18; Humphrey v. Foster, 13 Gratt., 658; Chiles ». Cowley, 2 Dana, SI. (A) As to tno States in which a deed of lands, without words of inheritance, may transfer the fee, see the names of the States in their order above, pp. 816 to 332. (i) The quit-claim deed is generally used where the grantor desires to incur no responsibility as to the title. It was formerly the rule, that an instru- ment by which one merely released or quit-cjaimed to another could pass nothing unless the latter was actually or construc- tively in possession; but the generally received American rule is, that the words "remise, release and quit-claim," or in- deed any equivalent words, such as " re- lease and assign," " make over and con- firm," and the like, are sufficient to raise a use or trust for the bargainee, and amount to a sufficient conveyance, if there is a pecuniary consideration. Beddoe V. Wadsworth, 21 Wend., 120; Lynch v. Livingston, 6 Jf. Y. (2 Seld.), 422; Pray ». Pierce, 7 Mass., 881 ; Russell v. Coffin, 8 Pick., 148. It is enacted in Massachusetts (Gen. Stat., 1860, 466, S8), Miohioan (2 Comp. Laws, 1857, 8*8, % 8), DEEDS. 335 Quit-claim. Deed without Covenants. above, and 0. B. his wife], in consideration of dollars to me [or, us] paid by Y. Z , of , merchant, the receipt whereof is hereby acknow- ledged, have remised, released and forever quit-claimed, and by these pres- ents do, for myself, my [or, ourselves, our] heirs, executors and administra- tors, remise, release and forever quit-claim unto the said Y. Z., his heirs and assigns, forever, all such right, title, interest [dower and right of dower(j)], property, possession, claim or demand as I [or, as we or either of us] have or ought to have, in or to all [here insert description, of premises], to havb and to hold tlie said premises nnto the said Y. Z., his heirs and assigns, to Ids and their only proper use and behoof forever ; so that neither I, the said A. B., or any other person in my name and behalf [or, we, the said A. B. and C. Ii, or either of ns, or any other person in our or either of our names and behalf] shall or will hereafter claim or demand any right or title to the premises, or any part thereof; but they, and every of them, shall by these presents be excluded and forever barred. 1st witness wheheof, I [or, we] have hereunto set my hand and seal [or, onr hands and seals], this day of , in the year one thousand eight hundred and Signed, sealed and delivered) [Signatures and seals of grantors.] in the presenoe of J [Signature of witness.] 676. Deed Conveying Without Covenants. This indenture, made this day of , in the year one thousand eight hundred and , between A. B , of .in the county of , and State of , farmer [and 0. B. his wife], of the first part, and Y. Z., of , in said county, merchant, of the second part: Witnesseth, that the said party [or, parties] of the first part, in consideration of the sum of dollars, to him [or, them] paid by the said party of the second part, the receipt whereof is hereby acknowledged, has [or, have] granted, bargained and sold, and by the^e presents does [or, do] grant, bargain and sell(i) unto the said party of the second part, and to his heirs and assigns Minnesota (Stats., 1851, 211, § 8), Mississippi (Rev. Code, 1857), 309, Art. Mississippi (Hutch. Dig., 610, § 28 ; Kerr 16, and v. Freeman, 83 Miss. (Geo.), 292; and Pennsylvania, Purdon , s Dig., 822, Virginia (Code, 503, § 8), that the words "grant, bargain and that a deed of quit claim and release, of Bell," in conveyances in fee, amount to an the form in common use, shall be suf- express covenant to the grantee, his heirs ficient to pass all the estate which the and assigns, that the grantor was seized grantor could lawfully convey by bargain of an indefeasible estate in fee-simple, and sale. free from encumbrances done or suffered (j) Omit these words, unless a wife from the grantor, except the rents and joins. services that are reserved ; and also for (A) It is enacted in the States of Ala- quiet enjoyment against the grantor, his bama (Code of 1852, § 1314) ; heirB and assigns, unless limited by the Arkansas (Bn. Mat., 1838, 188, § 1), express words or such conveyance. Illinois, S. T. & B. Stat., 961, This implied covenant, however, iu 336 ABBOTTS' FORMS. Deed with Covenant against Gnintor's Acts. forever, all [here insert description of premises], together with all and singular the tenements, hereditaments and appurtenances thereunto belong- ing, or in any wise appertaining; and the reversion and reversions, re- mainder arid remainders, rents, issues and profits thereof; and also all the estate, right, title, interest [dower and right of dower], property, possession, claim and demand whatsoever, as well in law as in equity of the said party [o~; parties] of the first part, of, in and to the above-granted premises, and every part and parcel thereof: To have and to hold all and singular the above-granted premises, together with the appurtenances and every part thereof unto the said party of the second part, his heirs and assigns, forever. In witness whereof, the said party [or, parties] of the first part has [or. have] hereunto set his hand and seal [or, their hands and seals] the day and year first above written. Signed, sealed and delivered ) [Signature and seal.] in the presence of ) [Signature of witness.] 677. Deed with Covenant Against Grantor's Acts. This indentuke, made the day of , in the year one thousand eight hundred and , between A. B., of the city of , and State of construed as merely a covenant against the grantor's own acts. i Kent's Com., 474; Gratz v. Ewalt, 2 Binn., 95 ; Koebuck v. Depny, 2 Ala., 451 ; Rawle on C, 586 ; Prettyman v. Wilkey, 19 Ills., 235 ; Latham v. Morgan, 1 Sm. & M. Gh., 611. In Arkansas the same words, "grant, bargain and sell," are also a covenant for the quiet enjoyment against the claim or demand of all other persons whatsoever, unless limited by express words. Rev. Stat., 1838, 188. In California, these words import a covenant that previous to the execution the grantor has not conveyed any interest to any other than the grantee, and that the premises are free from encumbrances done or suffered by the grantor or any person claiming under him. Wood's Dig., 388. In Delawabe, it is enacted that (< where there is no express covenant in a deed, the words grant, bargain and sell, shall, unless specially restrained, imply a special warranty against a grantor and his heirs, and all persons claiming under him." Rev. Stat., 1852, p. 266, § 2. In Missooki, they are equivalent to express covenants on the part of the grantor for himself and his heirs, to the grantee, his heirs and assigns ; First, That the grantor was, at the time of the execution of such conveyance, seized of an indefeasible estate, in fee-simple, in the real estate thereby granted ; Second, That such real estate was, at the time o1 the execution of such conveyance, free from encumbrance done or suffered by the grantor, or any person claiming under him ; Third, For further assurances of such real estate to be made by the grantor and his heirs, to the grantee and his heirs and assigns. 1 Rev. Stat. (1855), 355, § 1. The provision in the State of Missouri, making these words a covenant for further assurance and to remove encumbrances, embraces such encumbrances only as the grantor can control. Armstrong ». Darby, 26 Misso. (5 Jones), 517. The covenants raised by force of such statutes are regarded as equivalent to an express covenant, and u subsequent express covenant of narrower import does not restrict its effect. Hawk v. MoCul- lough, 21 Ills., 220. These statutory covenants do not bind executors, administrators, etc., personally, when the words are used by them in conveyances in the necessary execution of their trusts. Shontz v. Brown, 27 Pmn. St., 128. DEEDS. 337 Covenant against Grantor's Acts. Warranty. , merchant [and C. B. his wife], of the first part, and Y. Z., of , in said county, farmer, of the second part, Witnessed, that the said party [or, parties] of the first part, for and in consideration of tho ?nm of dollars, lawful money of the United States of America, to him [or, them] in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has [or, have] granted, bargained, sold,(Z) aliened, remised, released, con- veyed and confirmed, and by these presents do grant, bargain, sell, (2) alien, remise, release, convey and confirm, unto the said party of the second part, and to his heirs [or, if a corporation, their successors] and assigns, forever, all [here insert description of the premises], together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining ; and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and also all the estate, right, title, interest [dower and right of dower(m)], property, possession, claim and demand whatsoever, both in law and in equity, of the said party [or, par- ties] of the first part, of, in and to the above-granted premises, and every part and parcel thereof, with the appurtenances. To have and to hold all and singular the above-granted premises, together with the appurtenances and every part thereof, unto the said party of the second part, his heirs and assigns, forever.* And the said A. B. [not naming the wife], for himself, his heirs, execu- tors and administrators, does hereby covenant, promise and agree to and with the said party of the second part, his heirs and assigns, that he has not made, done, committed, executed or suffered any act or acts, thing or things whatsoever, whereby or by means whereof, the above mentioned and de- scribed premises, or any part or parcel thereof, now are, or at any time hereafter, shall or may be impeached, charged or encumbered, in any manner or way whatsoever. In witness whebeof, the said party [or, parties] of the first part, has [or, have] hereunto set his hand and seal [or, their hands and seals], the day and year first above written. Signed, sealed and delivered ) [Signatures and seals.] in presence of j [Signature of witness.] 678. Warranty-I)eed.(n) This indenture, made this day of , in the year one thousand eight hundred and , between A. B., of the city of , and State of , merchant [and C. B. his wife], of the first part, and Y. Z., of , in said county, farmer, of the second part, Witnesseth, that the said party (0 See note (h) preceding. unless otherwise expressed; though this (m) Omit these words, unless a wife joins, rule does not obtain in Pennsylvania, {n) The "warranty in this form is called where such a contract is satisfied by a the general warranty, being against the special warranty — i. «., against the ven- acts of all persons. A contract to give a dor's acts. For a form of which, see No. warranty-deed oalls for a general warranty, 679. 22 338 ABBOTTS' FORMS. Warranty- Deed. [or, parties] of the first part, in consideration of the sum of dollars, lawful money of the United States, to him [or, them] in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the said party of the second part, his executors and administrators, forever released and discharged from the same, by these presents, has [or, have] granted, bargained, sold, aliened, remised, released, conveyed and confirmed, and by these' presents does [or, do] grant, bargain, sell, alien, remise, release, con- vey and confirm unto the said party of the second part, and to his heirs and assigns forever, all [here insert description], together with all and sin- gular the tenements, hereditaments and appurtenances thereunto belong- ing or in any wise appertaining; and the reversion and reversions, remain- der and remainders, rents, issues, and profits thereof; and also all the estate, right, title, interest [dower and right of dower], (o) property, pos- session, claim .and demand whatsoever, both in law and in equity, of the said party [or, partjes] of the first part, of, in and to the above-granted premises and every part and parcel thereof, with the appurtenances. To bave asd to hold the above mentioned and described premises, with the appurtenances and every part thereof, to the said party of the second part, his heirs and assigns, forever.* And the said A. B. and his heirs, the above- described and hereby granted and released premises, and every part and parcel thereof, with the appurtenances, unto the said party of the second part, his heirs and assigns, against the said party [or, parties] of the first part, and his [or, their] heirs, and against all and every person and persons whomsoever, lawfully claiming or to claim the same or any part thereof, shall and will warrant and by these presents forever defend. (p) In witness whereof, the said party [or, parties] of the first part has [or, have] hereunto set his hand and seal [or, their hands and seals] the day and year first above written. Signed, sealed and delivered in] [Signatures and seals.] presence of ) [Signature of witness.] 679. Special Warranty. (q) [As in the preceding form, or as in Form 677, substituting in place oj the paragraph following the *, this clause :] And the said A. B. and his (o) Omit these words, unless a wife joins. 122; Blyd&nbnrgh v. Cotheal, 1 Duer, (p) This is the form of general warranty 176; Mitchell v. Warner, 5 Conn., 497, in use in New York, and it is believed to 510 ; Loomis v. Bedel, 11 N. H., 74 ; Ham- be the same generally throughout the ilton v. Cutts, 4 Mass., 349. country. Bawle. on C, 240. This cov- (g) It has been held, that where the enant is not broken by want of title in deed purports to convey " all the right, the grantor, or an outstanding title in title and interest of the grantor," a special another. Eviction, or a disturbance or warranty, such as the above, is to be surrender of possession, is necessary to deemed to relate to the title, not to the constitute a breach. Kent v. Welch, 7 land itself, and it does not estop the Jbhyis., 258; Miller v. Watson, 5 Co n J., grantor to set up a title subsequently ac- 195 ; Vandekarr r Vandekarr, 11 Johr-*., quired. Comstock*. Smith, 13 Pick., 114. DEEDS. 339 Full C< venants and Warranty. heirs., the above-described and hereby granted and released premises, and every part and parcel thereof, with the appurtenances, unto the said part of the second part, heirs and assigns, against the said part ot the first part, and heirs, and against all and every person and persons whomsoever, lawfully claiming or to claim the same, or any part thereof, by, from or under him, them or any of them, shall and will warrant, and, by these presents, forever defend. In witness [etc., concluding as in preceding form]. 680. Warranty-Deed, With Full Covenants. This indenture, made this day of , in the year one thou- sand eight hundred and , between A. B., of , in the county of , and State of , farmer [and 0. B. his wife], of the first part, and Y. Z., of the same place, merchant, of the second part, witness- eth : That the said party [or, parties] of the first part, in consideration of the sum of dollars, lawful money of the United states, to. him [or, them] paid by the said parly of the second part, at or before the ensealing and delivery of the? e pre-ents, the receipt whereof is hereby acknowledged ; and the said party of the second part, his heirs, executors and administra- tors, forever, released and dischnrged from the same by these presents, has [or, have] granted, bargained, sold, aliened, remised, released, conveyed and confirmed, and, by these presents, does [or, do] grant, bargain, sell, alien, remise, release, convey and confirm unto the said party of the second part, and to his heirs and assigns forever, all [here insert description] ; together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and the reversion and rever- sions, remainder and remainders, rents, issues and profits thereof; and also all the estate, right, title, interest [dower and right of dower], (r) property, possession, claim and demand whatsoever, both in law and in equity, of the said party [or, parties] of the first part, of, in and to the above-granted premises, and every part and parcel thereof, with the appurtenances : Tc have and to hold all and singular the above-granted premises, together with the appurtenances and every part thereof, unto the said party of the second part, his heirs and assigns, forever. [If there is any encumbrance state it thus: subject, however, to a certain indenture of mortgage foi dollars, and dated ,18 , and recorded in the office of in Liber of Mortgages, at page , and also subject, etc.] And the said A. B [not naming the wife], for himself, his heirs, execu tors and administrators, does covenant, promise and agree to and with the said party of the second part, his heirs and assigns, that the said A. B., at But Loomiu v. Bedel (11 N~. H., 74) is to that right. Comstock v. Smith, 13 Pick., the contrary. Compare Frink *. Darst, 116, holds the contrary where the war- 14 Ills., 804 ; Miller v. Ewing, 6 Ousk., 34. ranty is special. But such covenant ex- It was held in Loomis «. Bedel, 11 If. tends only to lands and tenements — that H., 1i, that a covenant to warral.t and is, to what is permanent and immovable — det'end the premises, refers to the lands ,nnd does not include water or casements, described, and not merely to " the right, Mitehel v. Warner, 5 Gorm., 497. title and interest of the grantor," even (r) Omit these words, unless a wife Where the deed only purports to convey joins. 340 ABBOTTS' FORMS. Warranty- Deed. jrhe time of the sealing and delivery of these presents, is lawfully seized in his own right [or otherwise, as the case may be]j of a good, absolute and in- defeasible estate of inheritance, in fee-simple, of and in all and singular the. above granted and described premises, with the appurtenances [if conveyed subject to encumbrance, say, subject as aforesaid] ; and has good right, full power and lawful authority to grant, bargain, sell and convey the same, in manner aforesaid. And that the said party of the second part, his heirs and assigns, shall and may at all times liereafter, peaceably and quietly have, hold, use, occupy, possess and enjoy the above-granted premises,- and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, molestation, eviction, or disturbance of the said party [or, parties] of the first part, his [or, their] heirs or assigns, or of any other per- son or persons lawfully claiming or to claim the same ; * and that the same now are free, clear, discharged and unencumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and encumbrances, of what nature or kind soever * [if conveyed, subject to an encumbrance, say, except as aforesaid]. (s) And also, that the said party [or, parties] of the first part, and his [or, their] heirs, and all and every other person or persons whomsoever, lawfully or equitably deriving any estate, right, title or interest, of, in or to the above-granted premises, by, from, under or in trust for him [or, them], shall and will at any time or times hereafter, upon the reasonable request, and at the proper costs and charges in the law, of the said party of the second part, his heirs and as- signs, make, do and execute, or cause or procure to be made, done and ex- ecuted, all and every such further and other lawful and reasonable acts, conveyances and assurances in the law, for th,e better and more effectually vesting and confirming the premises hereby granted or intended so to be in and to the said party of the second part, his heirs and assigns, forever, as by the said party of the second part, his heirs or assigns, or his or their counsel learned in the law, shall be reasonably devised, advised or required. And the said A. B. [not naming wife] and his heirs, the above-described and hereby granted and released premises, and every part and parcel thereof, with the appurtenances, unto the said party of the second part, his heirs and assigns, against the said parties of the first part and their heirs, and against all and every person and persons whomsoever, lawfully claiming or to claim the same, shall and will warrant, and, by these presents, forever defend. In witness whkeeof, the said party [or, parties] of the first part has [or, have] hereunto set his hand and seal [or, their hands and seals], the day and year first above written. [Signatures and seals.] Signed, sealed and delivered j in the presence of J [Signature of witness ] («) The words between the * * oonsti- enlargement to the covenant for quiet tute the covenant against encumbrances, possession, its connection being that the as it now generally runs in deeds in New grantee and his heirs, etc., should enjoy York and some other States. This cove-' quiet possession, and that, free of all en- nant, however, in its original form, was a cumbrance. Fcr that form of the cove- clause added by way of qualification or nant, see Form S24, supra. DEEDS. 341 Covenant against Nuisances. 681. Deed With Covenant by Grantee Against Certain Kinds of Building and Occupations, and Against Nuisances.^) [As in other full forms to the habendum, thence as follows:] To have and to hold the above-mentioned and described premises, and every part and parcel thereof, with the appurtenances, unto the said party of the second part, his heirs and assigns, forever, subject, nevertheless, to the covenants, conditions and restrictions hereinafter expressed. And the said party of the second part, for himself, his heirs and assigns, doth covenant and agree to and with the said A. B., his heirs, executors, administrators and assigns, as follows — that is to say, that the party of the second part, his heirs or assigns, shall not, at any time hereafter, erect or cause or procure permit or suffer to be erected upon the hereby granted premises, or any part thereof, any building other than a building of brick or stone, with a roof covered with slate, tin, zinc or other metal ; nor at any time hereafter erect, or cause, procure, permit or suffer to be erected, upon the rear of the lot or lots hereby conveyed, or any of them, any building to be used or occupied, or for the purpose of being used or occupied, as a dwelling-house or habitation ; nor at any time hereafter erect or cause or procure, permit or suffer to be erected, upon the premises hereby conveyed, or any part thereof, any building to be used or occupied, or for the purpose of being used or occupied, for any of the purposes herein and hereby prohibited ; nor at any time use or employ, or cause, procure, permit or suffer to be used or employed, by his heirs or grantees, les-ees, or tenants, of said preinises, or any part thereof, or by any other person holding possession of said premises, or any part thereof, under his title, any building erected, or which may at any time hereafter be erected, on said premises or any part thereof, for the use or purpose of, or as, a brewery, distillery, slaughter-house, smith shop, carpenter shop, forge or furnace, steam-engine, brass foundry, nail or other iron foundry, soap, candle, starch, varnish, vitriol, glue, ink, turpentine or bone factory, or manufactory of gunpowder, or any bone-boiling establishment or factory for tanning, dress- ing or preparing skins, hides or leather, or a cow or a livery stable, or cat- tle-yard or hog pen, or for any other dangerous, noxious or offensive pur- pose or establishment whatsoever. And that the said party of the second part, his heirs and assigns, shall not carry on, prosecute, conduct, use or employ or procure, cause, permit or suffer to be carried on, prosecuted, conducted, used or employed on said premises, or any part thereof, by his or their grantees, lessees, tenants or by any person in possession of said premises, or any part thereof, any steam- engine, or any of the said trades, business, machines or employments above specified, or any other noxious, offensive or dangerous trade, busi- ness or employment. And it is. expressly understood and agreed, and this conveyance is made and accepted upon the express condition that if said premises, or any part '■■) For a form of ordinary .ovenant against nuisances, see chapter on Covenant 342 ABBOTTS' FOBMS. Deed with Covenant against NuiBances. thereof, or any building thereon erected or to be erected, or any part thereof, shall, at any time, be used or procured, permitted or suffered to be used by the said party of the second part, his heirs or assigns, or any lessees, tenants or any persons in possession thereof, under him, them or either of them, for any of the purposes above prohibited; or if any of the said machines, trades, business or employments shall be employed, used, carried on, prose- cuted or conducted, or procured, permitted or suffered to be employed, used, carried on, prosecuted or conducted upon said premises, or any part thereof; or if said party of the second part, his heirs and assigns, shall neglect or fail to perform, fulfil and keep the several covenants herein con- tained, or make any default in the performance or fulfilment of said cove- nants, or any or either of them, then and in either of such events it shall be lawful for the said A. B. and his heirs and assigns, and also for the owner or owners of any lot or lots adjoining, or in the neighborhood of the prem- ises hereby conveyed, deriving title from or through the said A. B., and he or they or any of them are hereby authorized and empowered to re-enter into and upon said premises or the particular lot or lots in respect to which such covenant or covenants may have been broken, or neglected or omitted to be performed, fulfilled and kept, and without notice evict all persons therefrom in possession thereof, and to tear down, remove therefrom and sell such building or buildings so used or to be used or employed for the purposes herein and hereby prohibited, or either of them; and also to tear down, remove therefrom and sell all fixtures, utensils and appurtenances used or intended to be used for the purpose of carrying on or conducting any or either of said trades, businesses or employments, such sales to be made in manner and form as sales of personal property, levied on by virtue of an execution ; and the proceeds thereof applied in payment of any expenses incurred in such tearing down, removal and sale, and also in the payment of all damages sustained or occasioned by means of the breach of the covenant or covenants aforesaid, and the surplus, if any, to be returned to the owner or owners of the particular lot or lots aforesaid. And it is expressly understood and agreed, that the said several covenants on the part of the said party of the second part, above specified, shall attach to and run with the land, and it shall be lawful not only for the said A. B., his heirs and assigns, but also for the owner or owners of any lot or lots ad- joining or in the neighborhood of the premises hereby granted, deriving title from or through said A. B., to institute and prosecute any proceeding at law or in equity against the person or persons violating or threatening to violate the same, it being understood, however, that this covenant is not to be enforced personally for damages against the said party of the second part, his heirs or assigns, unless he or they be the owner or owners of the said premises, or of some part thereof, at the time of a violation of the said covenant, or of a threatened or attempted violation thereof; but the said covenant may be proceeded on for an injunction of, and for a specific execu- tion thereof, against the said party of the second part, his heirs or assigns, and for damages against the party or parties violating the said covenant, his or their heirs, executors, administrators or assigns. [Proceed with other covenants, as in other cases.] DEEDS. 343 Warranty. Attestation, In witness whereof, the parties to these presents have hereunto inter- changeably set their hands and seals, the day and year first above written. Signed, sealed and delivered) [Signatures and seals.] in the presence of J [Signature of witness.] 682. Short Form of Warranty-Deed. Know all men by these presents, that I, A. B., of , in the county of . and State of , farmer, in consideration of dol- lars, to me paid by Y. Z., of , in the county of , and State of , the receipt whereof is acknowledged, do grant, bargain, sell and confirm unto the said Y. Z., his heirs and assigns, forever, all [here in- sert description], with the appurtenances. And I do, for myself and my heirs, executors and administrators, covenant with the said Y. Z., his heirs and assigns, that at the time of making this conveyance I am well seized df the premises, as of a good and indefeasible estate in fee-simple, and have good right to bargain and sell the same, as aforesaid, and that the same are free from all encumbrance whatsoever ; and the above-granted premises, in the quiet and peaceable possession of the said Y. Z., and his heirs and as- signs, I will warrant and forever defend. In witness whekeof, I have hereunto set my hand and seal, the day of , in the year one thousand eight hundred and Signed, sealed and delivered ) [Signature and seal.] in presence of J [Signature of witness.] 683. Attestation of a Deed in Which Erasures or Interlineations Appear. In witness wheeeof, the said party of the first part has hereunto set his hand and seal, the day and year first above written. [Signature and seal.] Sealed and delivered in the presence of (the word " five," on the first page, was erased, the words " be the same more or less" written over an erasure; on the second page, the words " or assigns," interlined in three places, and the word "forthwith" cancelled on the third page, before execution). [Signature of witness.] Deeds By or To Particular Classes of Parties, Such as Corporations, Officers, Trustees, etc. 684. Deed By a Corporation. This indenture, made this day of , in the year one thousand eight hundred and ' , between the [here insert the legal title of the 344 ABBOTTS' FORMS. Deeds by or to Corporations. corporation] of , parties of the first part, and Y. Z., of the same place, party of the second part, witnesseth, that the said parties of the first part, in consideration of the sum of dollars [thence proceeding as in other deeds to the covenants, each of which will bggin thus] : And the said parties of the first part [or name the corporation], for themselves and their suc- cessors, do covenant [etc., continuing as in other cases]. In witness whereof, the said parties of the first part have hereunto caused their corporate seal to he affixed, and these [Corporate presents to be subscribed by their president and cashier seal.] [or, secretary, or other officer or officers, as the corporation may order], [Signatures of officers.] 685. The Same; When All the Directors Sign. [As in the preceding form to the attestation, which will be :] In witness wheeeof, the president, directors and company of [naming the corporation], have hereunto set their corporate [Corporate seal by the hands of their president and directors, and the . seal.] president and directors have hereunto subscribed their names this day of ,18 [or, the day and year first above written]. [Signature of] President. [Signatures 1 of > Directors. the] ) 686. The Same ; By a Municipal Corporation. [As in the preceding form to the attestation, which will be :] In witness whekeof, the said parties of the first part have [Corporate hereunto caused the common seal of the said city of seal.] to be affixed, the day and year first above written. [Signature of] Mayor. By the Common Council, [Signature of] Clerk. 687. Deed To a Corporation. This indenture, made this day of , in the year one thousand eight hundred and , between A. B., of , in the county of , and State of , merchant, of the first part, and the [here insert the legal title of the corporation] of , parties of the second part, witness- eth, that the said party of the first part, in consideration of the sum of dollars, to him in hand paid by the said parties of the second part, the receipt whereof is hereby acknowledged, and the said parties of the second part and their successors, forever released and discharged from the same, by these presents, have granted, bargained, sold, aliened, remised, released, conveyed and confirmed, and by these presents do grant, bargain, sell, alien, remise, release, convey and confirm unto the said parties of the second part and to their successors and assigns forever, all [here insert DEEDS. 345 By or to particular Classes of Parties. description, etc., as in other deeds, down to the words to have and to hold, thence continuing thus :] To have and to hold all and singular the above mentioned and described premises, together with the a{ purtenances, unto the said parties of the second part, their successors and assigns, forever. And the said A. B., for himself and his -heirs, executors and administrators, does covenant, promi-e and agree to and with the said parties of the second part, that [etc., con- tinuing as in other cases, out naming "successors" instead of " heirs, executors," etc., of the parties of the second part]. 688. Deed Releasing to Heirs or Devisees. [The habendum may be as follows:] To have and to hold the premises hereby granted, with the appurtenances, unto the said parties of the second part, their heirs and assigns, to the only proper use, benefit, and behoof of the said parties of the second part, their heirs and assigns, forever, accord- ing to their respective estates, rights, titles or interests, as devisees or persons entitled to the real property of the said M. N., deceased. 689. Deed Executed By An Attorney in Fact. This indentube, made this day of , in the year one thou- sand eight hundred and , between A. B. [naming the principally], of , merchant, of the first part, and Y. Z. [etc., proceeding as in case of a deed executed by the principal]. In witness whebeof, the said party of the first part [or name the prin- cipal] has hereunto, by 0. D., his attorney in fact, set his hand and seal the day and year first above written. A. B. [Seal,] by 0. D. his attorney.(») 690. Another Form ; Referring to the Power Annexed. [As in preceding form, concluding thus:] In witness whebeof, 0. D., in pursuance of a letter of attorney, hereunto annexed [or, a copy of which is hereunto annexed], bearing date the day of , 18 , hath set the hand and seal of the said principal A. B. Signed, sealed and delivered) A. B. [Seal,] in presence of ) by 0. D. his attorney. [Signatures of witnesses.] («) It is the general rule, that it is indis- frame of the conveyance, that it is the pensable, to give validity to a deed made deed of the principal. The name of the by an attorney, that it should be made in principal must be signed. Fowler v. the name of the principal. Coombe'sOase, Shearer, 7 Mass., 14 ; Townsend v. Hub- 9 Co., 76 ; El well v. Shaw, 16 Mass., 42; bard, 4 Hill, 851. Spencer v. Field, 10 Wend., 87. It is not This is the appropriate form of sig- enough that it be in name of the agent, de- nature. But it is not material whether scribing him as sfich. This rule however, the sigcature be "A. B. by C. D. his is much relaxed in some of the States. attorney," or, " C. D. for A. B." Worrall tv) It is not sufficient to declare in the v. Munn, 5 N. Y. (1 Seld.), 229. 346 ABBOTTS' FORMS. Deed by Executors, etc. 691. Deed By Authority of the Legislature.(w) This indenture, made this day of , in the year one thousand eight hundred and , between A. B., of the city of , gentleman, if the first part, and T. Z., of the same place, of the second part; whereas the said A. B., by virtue of sundry conveyances, acts of the legislature, and orders of the court of chancery of the State of , has been empo wered(:c) to sell, or mortgage, or convey [in satisfaction of any debt due from him to any person or persons], the estate at , devised by 0. B., deceased, for the benefit of the said A. B. and his children, or any part thereof; and whereas the said A. B. is indebted to the said party of the second part in a large sum of money: Now, therefore, this indenture witnesseth that the said A. B., in consideration of [etc., proceeding as in other cases]. 692. Deed oy Executors. This indenture, made this day of , one thousand eight hundred and , between A. B., of the city of , in the State of , executor [or, sole acting executor; or, sole surviving executor; or, if there are several, say: A. B., of, etc., and C. D., of, etc., executors] of the last will and testament of M. N., late of , in the county of , and State of , deceased, of the first part, and Y. Z., of , in the county of , farmer, of the second part, witnesseth : That the said party [or, par- ties] of the first part, by virtue of the power and authority to him [or, them] given in and by the said last will and testament, and in consideration of the sum of dollars to him [or, them] paid by the said party of the second part, the receipt whereof is hereby acknowledged) has [or, have] granted, bargained, sold, aliened, remised, released, conveyed and confirmed, and by these presents does [or, do] grant, bargain, sell, alien, remise, release, convey and confirm, unto the said party of the second part, his heirs and assigns, forever, all [here insert description], together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining ; and the reversion and reversions, remainder and re mainders, rents, issues and profits thereof; and also all the estate, right, title, interest, property, possession, claim and demand whatsoever, both in law and equity, which the said testator had in his lifetime, and at the time of his decease, and which the said party [or, parties] of the first part [or either of them, have or] has, by virtue of the said last will and testament, or otherwise, of, in and to the above-granted premises, and every part and parcel thereof, with the appurtenances. To have and to hold all and singular the above-granted premises, together with the appurtenances, and (w) Where there is a long-settled usage Pick., 409 ; Cofran v. Cookran, 5N.H., 458. for persons acting under a power from (x) These recitals are not essential to the Government to convey iu their own the validity of the deed, but are a con- name, such n conveyance is valid unless venient method of preserving evidence ; otherwise directed by the authority under and they may be made more full by citing which il is made. Ward v. Bartholomew, 6 the particular acts relied on. DEEDS. 347, By Executors. every part thereof, unto the said party of the second part, his heirs and as- signs, forever. * And the said party [or, parties] of the first part, for himself, his [or, themselves, their] heirs, executors and administrators, does [or, do] cov- enant, promise and agree, to and with the party of the second part, that lie is [or. they are] lawfully the executor [s] of the last will and testament of said M. 1ST., and has [or, have] power to convey as aforesaid, and has [or, have] in all respects acted, in making this conveyance, in pursuance of the authority granted in and by the said last will and testament; and that he has [or, they have] not made, done or suffered any act, matter or thing whatsoever, since he was [or, they were] executor as aforesaid, whereby the above-granted premises, or any part thereof, are, shall or may be im- peached, charged or encumbered in any manner whatsoever. [If a covenant of seisin is inserted, it will be as in Form 619.] Iu witness whereof, the said party [or, parties] of the first part has [or, have] hereunto set his hand and seal [or, their hands and seals] the day and year first above written. Signed, sealed and delivered ) A. B., Executor, etc. [Seal.] in presence of f [Signature of witness.] 693. Deed by Survivors of the Acting Executors. This indenture, made this day of , in the year 18 , between A. B., of the county of , and 0. B., of the county of , as exec- utors, parties of the one part, and T. Z., of the city of , of the other part: Whereas, M. B., late of , deceased, did, by his last will and testament, give, bequeath and devise to his executors therein named all of his estate, real and personal, not otherwise devised, upon trust, for the purposes therein expressed, with power unto them, or such of them as might qualify, and the survivors and survivor of them, to sell any part thereof which might be necessary, and to convey the same to the purchaser or purchasers ; and the said testator, by his said last will aDd testament, gave to his said executors discretionary power and authority, in the case of real estate, to sell for cash, or upon such credit as they might deem most advisable, and conducive to the interest of his estate; taking good security from the purchasers, and also a lien on the said real estate, to secure the payment of the purchase-money ; and he, the said testator, did, by his said will and testament, constitute and appoint 0. P. and his sons, A. B., 0. B. and D. B., executors thereof: And whereas the said will [and a codicil thereafter written] were proved and admitted to record in the Court of , at , on the day of , 18 , and, on the day of , the said A. B., 0. B. and D. B., three of the said executors, qualified as such, by performing what was necessary for obtaining a probate of thu said will and codicil, and the said 0. P. renounced the same; and whereas, alter undertaking the said executorship, the said D. B. departed this life, and the said A. B. and C. B. survived him, and by virtue of the power vested in them, as surviving executors of said will, they, the said A. B. and 0. B., 348 ABBOTTS' FORMS. Deeds by Executors. have bargained to sell to the said Y. Z. the lot or piece of ground herein- after mentioned for the sum of dollars, payable as follows — viz., dollars on the delivery of these presents, and the residue in three equal an- nual instalments, carrying interest from the day of , the punctual payment of the said three sums of money to be secured by negotiable notes with approved indorsers, and a deed of trust on the property sold : Now this indenture witnesseth: That the said A. B. and 0. B., as surviving executors of the last will and testament of the said testator, for and in con- sideration of the said sum of paid and secured to be paid as aforesaid, and also in consideration of the sum of one dollar, to them in hand paid, have [etc., as in other forms]. 694. Deed oy Executors, Eeeiting the Power and the Facts on Which Its Execution Depends. {y) This indenture, made this day of , one thousand eight hun- dred and , between A. B., of , in the county of , and State of [and 0. D., of, etc.], executor [s] of the last will and testa- ment of M. N., late of , aforesaid, deceased, of the first part, and Y. Z., of , in the county of , farmer, of the second part, witnesseth : Whereas the said Y. Z., by his said last will and testament, bearing date the day of , 18 , devised the lands hereinafter mentioned to his executors aforesaid, in trust, to hold the same during the minority of his son, N. N., and on his attaining majority, or on his death, if it should sooner occur, to sell and convert the same into money for the purposes in said will specified, with power in such case to sell in such manner as they should deem proper : and whereas the said M. If. died, on the day of , 18, before attaining majority: Now this indenture witnesseth : That the said party [or, parties] of the first part, by virtue of the power and authority to him [or, them] given in and by the said last will and testament, and in consideration of the sum of dollars to him [or, them] paid by the said party of the second part, the reueipt whereof is hereby acknowledged, has [or, have] granted, bar- gained, sold, aliened, remised, released, conveyed and confirmed, and by these presents does [or, do] grant, bargain, sell, alien, remise, release, con- vey and confirm, unto the said party of the second part, his heirs and as- signs, forever, all [here insert description], Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining; and the reversion and reversions, remainder and remainders, rents, issues and profits thereof ; and also all the estate, right, title, interest, property, possession, claim and demand whatsoever, both in law and equity, which the said testator had in his lifetime, and at the time of his decease, and which the said party [or, parties] of the first part [or, (y) When a deed is made pursuant to not necessary, is advisable, as the recitals a power, it is usual to recite the facts may be evidence after lapse of years, which must take place in order to a valid Ward v. Bartholomew, 6 Hck., 409. ■sxectttion of the power This, though DEEDS. 349 By Executors. sither of them, have or] has by virtue of the said last will and testament, or otherwise, of, in and to the above-granted premises, and every part and parcel thereof, with the appurteuanoes : To have and to hold all and singular the above-granted premises, together with the appurtenances, and every part thereof, unto the said party of the second part, his heirs and as- signs, forever*. [Continue and conclude as in Form 692, from the *.] 695. Deed by Several Executors Covenanting Severally and Each for Him- self Alone. \As in either preceding form to the *, thence continuing thus:] And the said parties of the first part, each for himself, his heirs, executors and ad- ministrators, does severally and not jointly, nor the one for the other, or for the act or deed of the other, but each for his own acts only, covenant, promise and agree, to and with the said party of the second part, that he is lawfully the executor of the last will and testament of the said M. N"., and has power to convey as aforesaid, and has in all respects acted, in mak- ing this conveyance, in pursuance of the authority granted in and by the said last will and testament; and that he has not made, done, or suf- fered any act, matter or tiling whatsoever, since he was executor as afore- said, whereby the above-granted premises, or any part thereof, are, shall or may be impeached, charged or encumbered, in any manner whatsoever. [If a covenant of seizin is inserted, it will be an in Form 619.] In witness whereof, the parties of the first part have hereunto set their hands and seals, the day and year first above written. Signed, sealed and delivered ) A. B., Executor, etc. [Seal] in presence of ) CI. D., Executor, etc. [Seal.] [Signature of witness.] 696. Deed by Executor or Administrator, Selling by Order of Court for Payment of Debts. To aix to whom these presents shall come : I, A. B., of , in the county of , in the State of , executor of the last will and testa- ment [or, administrator of the goods, chattels and credits which were] of M. N" , late of , deceased, send greeting : Whereas, by an order of the surrogate of the county of , made at a court held at , and for the said county of , on the day of last past, upon an application duly made, I, the said A. B., was licensed and empowered to sell, and pass deeds to convey the real estate of the said M. N., hereinafter described; and whereas I, the said A. B., having given due public notice of the intended sale, by causing a notice of the time and place thereof to be posted for weeks at three of the most public places in the town [or, ward], where the sale was had, and also to be published for weeks, successively, in the newspaper called the , printed in • , agreeably to the order and direction of said court ; and having given the bond and taken the oath, by law in such cases required, previous to fixing upon the time and place of 350 ABBOTTS' FOKMS. Deeds by Executors. sale, did, on the day of instant, pursuant to the license and notice aforesaid, sell by public auction the real estate of the said M. N., hereinafter described, to Y. Z., of , in the county of , for the sum of dollars, he being the highest bidder therefor : Now, there- fore, know ye, that I, the said A. B , by virtue of the power and authority in me vested, as aforesaid, and in consideration of the aforesaid sum of dollars, to me paid by the said Y. Z., the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey, unto the said Y. Z., his heirs and assigns, forever, all [here insert description of the premises]. To have and to hold the above-granted premises, to the said E. F., his heirs and assigns, to his and their use and behoof forever. And I, the said A. B., for myself, my heirs, executors and administrators, do hereby covenant with the said Y. Z., his heirs and assigns, that in pursuance of the order afore- said, I took the oath and gave the bond, by law required, and gave public notice of said sale, as above set forth, and in all things observed the require- ments of the law, and of said orders in said sale. In witness whereof, I, the said A. B., have hereunto set my hand and seal, this day of , one thousand eight hundred and Signed, sealed and delivered ) [Signature, title and seal.] in presence of ) [Signature of witness.] 697. The Same; Setting forth the Orders at Large.{z) To all to whom these presents shall come : I, A. B., of , in the county of in the State of , executor of the last will and testament [or, .administrator of the goods, chattels and credits which were] of M. N"., late of deceased, send greeting : Wheheas the surrogate of the county of , at a court held at , on the day of ,18 , upon application duly made by , granted an order for the sale, of certain real property of the said M. ST., which order is as follows [here set forth at large the original order authorizing the sale] ; and whereas, pursuant to law and to the terms of said order, upon giving the bond and taking the oath, and upon due notice, a sale was made by me by public auction, to the said Y. Z:, of the hereinafter-granted prem- ises, being [a part of] the same premises described in said order, for the sum of dollars, he being the highest bidder therefor ; and whereas a return was by me duly made to the said surrogate of my proceedings on said order of sale ; and upon his examining the same, it appeared to the said surrogate that such sale was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold [or, if disproportionate, that a greater sum than above specified can- not be obtained] ; and he thereupon, and on the day of , 18 , made an order confirming the sale and directing a conveyance [or, convey- ances] to be executed, which order is as follows [here set it forth at large]. Now, therefore, know ye, that I, the said A. B., by virtue of the power and authority in me vested as aforesaid, and in consideration of the afore- («) This is required by the Statutes of New York. 2 Rev. Stat., 105, § 81. DEEDS. 351 By Executors. said sum of dollars, to me paid by the said T. Z., the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convej"-, unto the said Y. Z., his heirs and assigns, forever, all [here insert description of the premises]. To have and to hold the above-granted premises, to the said Y. Z., his heirs and assigns, to his and their use and behoof, forever. And I, the said A. B., for my.-elf, my heirs, executors and administrators, do hereby covenant with the said Y. Z., his heirs and assigns, that in pur- suance of the order aforesaid, I took the oath and gave the bond by law re- quired, and gave public notice of said sale, as above set forth, and in all things observed the requirements of the law and of said order in said sale. In witness whereof, I, the said A. B., have hereunto set my hand and seal, this day of , one thousand eight hundred and Signed, sealed and delivered ) [Signature, title and seal."] in presence of j [Signature of witness.] 698. Deed by Executor, Conveying by Order of Court Pursuant to Contract of Testator, Duly Proved and Recorded.{a) This indenture, made this day of , between A. B., of , surviving executor of the last will and testament of M. N., late of the same place, deceased, of the one part, and Y. Z., of , merchant, of the second part; Whereas the saidM. N., by force and virtue of divers good convey- ances and assurances, in the law duly had and executed, became in his life- time lawfully seized in his demesne as of fee, of and in a certain [here de- scribe the premises] with the appurtenances ; and being so thereof seized, did, on or about the year , enter into a contract with a certain J. £., for the sale of a certain tract of land [part of the premises aforesaid] con- taining by computation about acres, be the same more or le-s, bounded [etc., describing it as in the agreement], for the sum of dollars per acre ; part whereof — to wit : dollars were paid by the said J. K. to the said M. N"., in his lifetime, etc. And the said Y. Z. cloth allege, that by divers mesne conveyances and assurances in the law, the right and interest of the said J. K., of, in and to the aforesaid tract of land, is now vested in him the said Y. Z., subject to the payment of the residue of the purchase- money aforesaid with interest. And whereas the said M. N. did not com- ply with the said contract in his lifetime, nor was there any sufficient pro- vision made by him for the performance thereof; and whereas, agreeably to tne provisions and directions contained in the act of general assembly of this commonwealth, passed the day of , a. d. , entitled , the said Y. Z. did, on the day of , cause and procure the said recited contract to be duly proved in the Court of Common Pleas of the said county of , which proof was adjudged by the said court to be sufficient; and , Esq., prothonotary of the same court, on the same day aud year, did annex the same to the said contract, and did certify the same under his hand and the seal of the said court; and thereupon the (o) This form is from Gh-ayd. Forms (Pjcnn.), i ad., 238. 352 ABBOTTS' FORMS. Deeds by Executors. same was, on the day of last past, recorded in (he office for re- cording of deeds of the said county of , in hook , page . And whereas the said A. B., as executor aforesaid, preferred his petition to the said court, praying leave to make and execute a deed of conveyance to the said T. Z. and his heirs, for the said tract of land (which by a survey thereof lately made has been found to contain acres, and is butted, bounded and described as hereinafter mentioned), with the appurtenances, according to the true intent and meaning of the said contract. Whereupon the said court, on the day of last past, having considered the prayer of the said petition, and the evidence of the contract aforesaid, ordered and decreed, that the said A. B., as executor aforesaid, should make and execute a deed to the said Y. Z. and his heirs, of the hereinafter described tract of land, agreeably to the terms of the said contract as by the records of the said court, relation being thereunto had. more fully and at large appears. Now this indenture witnesseth, that the said A. B., for and in consid- eration of the sum of (being the balance of the purchase-money and interest thereon), unto him in hand well and truly paid by the said Y. Z., at and before the ensealing and delivery hereof, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, released and con- firmed, and by these presents by virtue and in pursuance of the said de- cree, does grant, bargain and sell, alien, release and confirm unto the said T. Z., and to his heirs and assigns, all that aforesaid tract or piece of land, bounded and described as follows — to wit: Beginning , etc. To gether [etc., as in other deeds of conveyance without warranty}. 699. Deed oy An Administrator, Conveying by Order of Court, Pursuant to Contract of His Intestate. To all to whom these presents shall come, A. B., of , administrator of the goods and estate which were of M. N., late of , deceased, sends greeting : Whereas the said M. N"., before his death, and on or about the day of , 18 , by a contract bearing date on that day, agreed to and with T. Z., of , in the county and State of , farmer, to sell and con- vey unto him, his heirs and assigns, forever, the premises hereinafter de- scribed, in consideration of the payment by said T. Z. of the sum of dollars, but said M. N". died intestate without performing said agreement; and whereas the justices of the Court, at their term holden at on the day of , did empower and license me to make and execute good and sufficient deed or deeds, to convey the said real estate of the said intestate. Wow know te, that by virtue of the authority and license aforesaid, and in order to fulfil and perform all things in the above-mentioned contract or agreement, on the part of the said A. B. to be performed, in consideration of the said sum of to me paid by the said Y. Z., the receipt whereof is hereby acknowledged, and in consideration that the said Y. Z. has per- formed and fulfilled all things in the above-recited contract or agreement on his part to be performed an*' fulfilled, I, the said A. II, administrator as DEEDS. 353 By Administrators. aforesaid, do hereby grant, bargain and sell to the said T. Z., bis heirs and assigns, forever, the said, etc., with the appurtenances ; to have and to hold the same to the said Y. Z., bis heirs and assigns, to his and their use, for- ever. In witness whereof, I have hereunto set my hand and seal, this day of , 18 .(b) Signed, sealed and delivered ) A. B., Administrator, etc. [Seal] in presence of j [Signatures of witnesses]. 700. Deed by Administrators, for Purpose of Partition, After Valuation and Refusal by the Heirs. This indenture, made this day of , one thousand eight hun- dred and , between A. B., of , and 0. D., of , in the county of , and State of , administrators of the goods and chat- tels, rights and credits, which were of M. N., late of , merchant, de- ceased, of the first part, and Y. Z., of , in said county, of the second part: Whereas the said M. N-, in his lifetime, and at the time of his death, was lawfully seized in his demesne as of fee, of and in the premises hereinafter described ; and whereas, at an Orphans' Court, held at , in and for the county of aforesaid, on the day of last, upon the petition of N. N., eldest son and heir-at-law [or otherwise, as the case may be] of the said M. N , deceased, praying the court to award an inquest to make par- tition of the real estate of the said intestate, in the said petition mentioned, to and among his children and representatives, in such manner, and in such proportions, as by the laws of is directed and appointed, if such par- tition could be made without prejudice to or spoiling the whole, otherwise to value and appraise the same, the said inquest was awarded by the court ac- cording to the prayer of the said petitioner; whereupon a writ of partition or valuation issued out of the said court, bearing date the day of , to the sheriff of the said county directed, commanding him to summon an in- quest to make partition of the said real estate to and among the children and representatives of tli e said intestate, according to law, if such partition could be thereof made without prejudice to and spoiling the whole ; but if such par-' tition could not be thereof made as aforesaid, then to value and appraise the same ; and that the partition or valuation so made he should distinctly and openly have before the justices of the said court at the day of then next ; at which day, before the judges aforesaid, the sheriff of the said county — to wit, O. P., made return of the said writ, with a sched- ule thereunto annexed, by which schedule or inquisition, under the hand and seal as well of the said sheriff as of the inquest therein named, it ap- pears, by the oaths and affirmations of the said inquest, that the real estate in thl said writ mentioned could not be parted and divided to and among (4) If the widow joins to release V cr dower, Kt i: be so expressed here as in Form 655 or 66S. 23 354 ABBOTTS' FOEM8. Deeds bv Administrators. the parties therein named without prejudice to or spoiling the whole there- of; and therefore the inquest aforesaid, upon their oaths and affirmations aforesaid, had valued and appraised the same at the sum of dollars, which return and valuation were, on motion, confirmed by the court; and whereas all the heirs and legal representatives of the said M. N". have sev- erally and respectively refused to take the said premises at the valuation aforesaid, and the said court, upon the application of the said N". N. [or other- wise, as the case may he], did grant a rule upon all the heirs and representa- tives of the said intestate, to show cause at the Orphans' Court to he held at. , on the day of then next ensuing, why the said real estate should not he sold according to the statutes in such case made and provided, at which said time and place, legal notice of the aforesaid rule being proved to have been duly given to all the heirs and legal representa- tives of the said intestate, and no cause having been shown why the said real estate should not be sold as aforesaid, the said court did then and there order the said A. B. and 0. D., administrators as aforesaid, to expose the premises aforesaid to public sale at , on the day of then next ensuing, upon the terms in the said order directed; in pursuance whereof the said administrators, having first given sufficient security according to law for the faithful performance of the trust committed to them ; and after having given due public and timely notice of the time and place of sale, did on the day and at the place and time therein mentioned, expose the prem- ises aforesaid to sale by public vendue, and sold the same to the said party of the second part for the snm of dollars, he being the highest bidder, and that the best price bidden for the same ; whioh sale, on report thereof made to the judges of the said court, was, on the daj of following, by them confirmed ; and it was considered and adjudged by the said court that the said premises, with the appurtenances, so sold as aforesaid, should be transferred and vested in the said Y. Z. as fully as the said M. N. held the same at his decease, subject and liable to the payment of the purchase- money, according to the terms prescribed in the said order, as by the rec- ords and proceedings of the same court, remaining at aforesaid, rela- tion thereunto being had, will more fully appear. Now inis indenture witnesseth : That the said A. B. and 0. D., admin- istrators as aforesaid, for and in consideration of the said sum of dol- lars to them in hand paid by the said Y. Z., at and before the sealing and delivery hereof, the receipt whereof they do hereby acknowledge, and thereof acquit and forever discharge the said Y. Z., his heirs, executors and administrators, by these presents have granted, bargained, sold, aliened, re- leased and confirmed, and by these presents, in pursuance and by virtue of the said order of the court, do grant, bargain, sell, alien, release and confirm unto the said Y. Z., and to his heirs and assigns, all the said premises — to wit [here insert description of the premises], together with all and singular the buildings, improvements, ways, woods, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging or in any wise appertaining, and the reversions and remainders, rents, issues and profits thereof; and also all the estate, right, title, interest, property, claim and demand whatsoever o:" the said M. ST., at and imme- DEEDS. 355 Guardian's Deed of Infants' Land. diately before the time of his decease, of, in, It or out of the same, in law or equity, or otherwise howsoever ; to have and to hold tlie said mes-uage or tenement and tract of land, and the tenements, hereditaments and premises hereby granted, or mentioned or intended so to be, with the ap- purtenances, unto the said Y. Z., his heirs and assigns, to the only proper use and behoof of the said Y. Z., his heirs and assigns, forever. And the said A. B. and 0. D., administrators as aforesaid, do severally, but not jointly, or the one for the other, or for the act or deed of the other, but each for his own act omy, covenant, promise and agree, to and with the said Y. Z., his heirs and assigns, by these presents, that they, the said A. B. and 0. D., have not, nor hath either of them done, committed or wittingly or willingly suffered to be done or committed, any act, matter or thing whatsoever whereby the premises aforesaid, or any part thereof, is, are or shall or may be impeached, charged or encumbered in title, charge or estate, or otherwise however. In witness wjiekedf, the said parties of the first part have hereunto set their hands and seal*, the day and year first above written. Signed, sealed and delivered ) [Signatures, titles and seals.] in presence of [Signature of witness.] 701. Deed of Guardian, Conveying Infant's Estate, oy Leave of Court.(c) Know all men by these presents, that I, A. B., of , gentleman, as I am guardian of C. D. and E. F., minors, under the age of twenty one years, by virtue of the power and authority granted me in my said capacity, by the Supreme Judicial Court, holden at , on , in con- sideration of the sum of dollars, to me paid by Y. Z., of , the receipt whereof I do hereby acknowledge, being the highest sum bid for the premises hereinafter described, at a public vendue leg.illy had and notified, do grant, bargain, sell and convey unto the said Y. Z., his heirs and assigns, a certain messuage [here insert description], and all the privi- leges and appurtenances to the same in any wise appertaining and belong- ing: To have and to hold the granted premises, to him, the said Y. Z., his heirs and assigns, to his and their use and behoof«forever. And I, the said A. B., for myself, my executors and administrators, do covenant with the said Y. Z., his heirs and assigns [that the said minors, at the time ol executing this deed, are seized in fee of the granted premises]; that in making the said sale I have in all things observed the rules and directions of the law [and that I will, and my heirs shall, warrant and defend the granted premises to the said Y. Z. against the lawful claims and demands of the said minors and their heirs, and all persons claiming the same by, from or under them, or either of them]. (c)This form is from Oliver on Convey- cept where the guardian joins in his own ancing. The covenants indicated in the right, in w rich oase the terms Bnould bfl brackets perhaps cannot be required, ex- modified sc as to apply to him. 356 ABBOTTS' FORMS. Deed of Infant by Special Guardian. In testimony whereof, I have hereunto set my hand and seal, this day of , one thousand eight hundred and Signed, sealed and delivered ) [Signature, title and seal.] in presence of ) [Signature of witness.] 702. Deed of Infant, Conveying by Special Guardian, by Leave of Court.(d) This indenture, made the day of , in the year 18 , between A. B., of j in the county of , and State of , an infant under twenty-one years of age, by 0. D., his special guardian, of , in aforesaid, farmer, of the first part, and T. Z., of , the second, part, witnesseth: "Wheekas the above-named infant, by E. F., his next friend [or, guardian], heretofore presented to the Court a petition praying for a sale of the right, title and interest of the said in- fant .in the premises in said petition mentioned and hereinafter described; upon which petition, an order of the said court was made at the City Hall in the city of , and county of , bearing date the day of , 18 , appointing C. D., above named, the special guardian of such infant, for the purposes of the said application, and directing that it be referred to G. H , a referee, to ascertain the truth of the facts in such petition alleged ; and thereupon, after the said special guardian had given the security by law required, such proceedings were afterwards had, that by an order of the said Court, made at the said City Hail, at aforesaid, bearing date the day of , in the year 18 , it was, among other things, ordered, that the above-named C. D., special guardian of such infant, be authorized to contract for the sale and conveyance of the right, title and interest of the said infant, in such real estate, for a sum not less than that specified in the referee's report in said order mentioned; and that such sale, with the name of the purchaser and the terms thereof, be reported to the said court, before the conveyance of such premises should, be executed; and whereas, the said special guardian, upon terms approved by the said referee, contracted for the sale of the said premises with T. Z., for the sum of dollars, that being the highest sum offered for the same; and thereupon the said guardian, on oath, made his report of such agreement to this court, pursuant to the last recited order, upon which an order was made by said court at the City Hall, in said city, bearing date the day of , 18 . confirming said report, approving and con- firming said sale, and directing the same to be carried into effect, and ordering the said guardian to' execute, acknowledge and deliver a. deed of said premises to said party of the second part, on his complying with the terms on which, by said agreement, the same was to ' be delivered ; and whereas, the said party of the second part has complied with the said terms : Now, this indenture witnesseth, that the said ' party of the first part, by 0. D., his special guardian, in consideration of the sum of dollars, to him paid by the said party of the second part, the receipt whereof (d) This form ib agreeable to the. statutes of lnew York, 1 DEEDS. 357 By Committee of Insane Person. is hereby acknowledged, has granted, bargained and sold, and by these presents does grant, bargain and sell unto the said party of the second part, and to his heirs and assigns forever, all [here insert dencription of premises], together with all and singular the tenements, hereditaments and appur- tenances thereunto belonging, or in any wise appertaining ; and the rever- ' sion and reversions, remainder and remainders, rents, issues and profits thereof; and also all the estate, right, title, interest, property, possession, claim and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in and to the above-granted premises, and every part and parcel thereof. To have and to hold all and singular the above-granted premises, to- gether with the appurtenances, and every part thereof, unto the said party of the second part, his heirs and assigns, forever. [Covenant as to regularity of proceedings, if inserted, may be similar to that in Form 696] Is witness whereof, the said party of the first part, by his guardian aforesaid, has hereunto set his hand and seal, the day and year first above written. A. B. [Seal.] Signed, sealed and delivered ) By 0. D., his special guardiaa. in presence of ) [Signature of witness.] 703. Deed by Committee of Idiot, Lunatic or Habitual Drunkard. This indenture, made this day of , 18 , betweea A. B., of , in the county of , and State of , committee of the person and estate of M. N., an idiot [or, a lunatic; or, an habitual drunkard], of the first part, and Y. Z., of aforesaid, of the second part. Wheiieas, upon an application duly made, the Court of , at , on the day of , 18 , by an order bear- ing date on that day, directed the real estate of said M. N., hereinafter described [or, so much of the real estate of said M. N. as might be necessary to rake the sum of dollars], to be sold by the said A. B. at public or private sale, subject to the approbation of the court, as by the terms of ' said order will more fully appear ; and whereas, pursuant to law, and to the terms of said order [after giving the additional security required by "said order], and upon due notice, a sale was made by said A. B.,'by public ' auction, to the said party of the second part, of the hereinafter granted premises, being [a part of] the real estate aforesaid of said M. N., for the sum of dollars, said party of the second part being the highest bid- der therefor [or,jitate sale by private agreement, as in Form 702]; and there- upon the said A. B., on oath, made his report of such agreement to this court, pursuant to the last recited order, upon which' an order was made by said court, at the City Hall in said city, bearing 'date the day of , 18 , confirming said'report, approving and confirming said sale, ' and directing the same to be carried into effect, and ordering the said com- -niittce to execute, acknowledge and deliver a deed of said premises to said party of the second part, on his compl^'ng with the terms on which, by 358 ABBOTTS' EOKMS. By Trustees of Insolvents, etc. said agreement, the same was to be delivered ; and whereas, the said party of the second part has complied with the said terms : Now this indenture witnesseih, that the said party of the first part, committee as aforesaid, in consideration of the snm of dollars, to him paid by the said party of the second part, the receipt whereof is here'jy acknowledged, has granted, bargained and sold, and by these presents does grant, bargain and sell unto the said party of the second part, and to his heirs and assigns forever, all [here insert description of premises], together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any wise apper f aining; and the reversion and reversions, remainder and re- mainders, rents, issues and profits thereof; and also all the estate, right, title, interest, property, possession, claim and demand whatsoever, as well in law as in equity, of the said party of the first part, and of the said M. N., of, in and to the above-granted premises, and every part and parcel thereof. To have and to hold all and singular the above-granted premises, together with the appurtenances, and every part thereof, unto the said party of.the second part, his heirs and assigns, forever. [Covenant as to regularity of proceedings, if inserted, may be similar to that in Form 696.] In witness whereof, the said party of the first part has hereunto set his hand and seal, the day and year first above written. Signed, sealed and delivered) [Signature, title and seal.] in presence of J ' [Signature of witness.'] 704. Deed by Trustees or Assignees of an Insolvent or Bankrupt, or an Absconding Debtor. To all to whom these presents shall come : We, A. B., C. D. and E. F., of , in the county of , and State of , trustees [or, as- signees] of the estate of M. IS., of , a bankrupt [or, an insolvent debtor; or, of the estate of M. IS., late of , an absconding debtor]. Wheiseas [here recite the essential proceedings(e) and the sale made pur- suant thereto, and conclude]. Now, therefore, know te, that we, the said A. B., 0. D. and E. E., by virtue of the power and authority in us vested, as aforesaid, and in considera- tion of the aforesaid sum of dollars, to us paid by the said Y. Z., the re- ceipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey unto the said Y. Z., his heirs and assigns, forever, all the interest which the said M. N. had, on the day of , 18 [naming the day on which the debtor's title was dhested by the proceedings], in and to all [here insert description of the premises], together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining ; and the reversion and reversions, remainder and remainders, rents, issues and profits thereof. To have and to hold the said above-bargained premises, with the appur- («) This may be done by ae ting forth the orders, etc., at large, or by stating their i'lbstance. DEEDS. 359 By Master in Chancery. tenances, and every part thereof, unto the said party of the second part, his heirs and assigns, to his and their only proper use and behoof forever : as fully and absolutely as the said parties of the first part can and ought to do, pursuant to the statute and their authority, as aforesaid. In witness whereof, the said parties of the first part have hereunto se1 their hands and seals, the day and year first above written. Signed, sealed and delivered ) [Signatures, titles and seals.] in presence of [Signature of witness.] 705. Deed By Master in Chancery. This indenture, made this day of , in the year one thousand eight hundred and , batween A. B., one of the masters in chancery in and for the State of , dwelling in the city of , party of the first part, and Y. Z , of the same place, stone-cutter, of the second part. Whereas, at a court of chancery held at the city of , before the vice-chancellor of the first circuit of the State of , on the day of , one thousand eight hundred and , it was, among other things, ordered, adjudged and decreed by the said court, in a certain cause then pending in the said court between M. E"., complainant, and 0. P., defendant, * that all and singular the mortgaged premises mentioned in the bill of complaint in said cause, and in said decree described, or so much thereof as might be sufficient to raise the amount due to the complainant for principal, interest and costs in said cause, and which might be sold separately without material injury to the parties interested, be sold at pub- lic auction, according to the course and practice of this court, by or under the direction of one of the masters thereof residing in the city of ; that the said sale be made in the county where the said mortgaged premises, or the greater part thereof, are situated ; that the master give public notice of the time and place of such sale, according to the course and practice of said court, and that any of the parties in said cause might become a purchaser or purchasers on such sale ; that the said master execute to the purchaser or purchasers of the said mortgaged premises, or such part or parts thereof as should be so sold, a good and sufficient deed or deeds of conveyiince for the same: And whereas a certificate of the enrolment of said decree, signed by the clerk of said court, has been pre- sented to the said master in chancery, the party of the first part : And whereas he. in pursuance of the order and deoree of the said court, did, on the day of , 18 , sell by public auction, at the Merchants' Exchange, in the city of [part of] the premises in the said order mentioned, due notice of the time and place of such sale being first given, agreeably to the said order, at which sale the premises hereinafter described were struck off to said party of the second part, for the sum of dollars, that being the highest sum bid for the same : t Now, this indenture witnesseth, that the said master in chancery, the party of the first part to these presents, in order to carry into effect the sale so made by him as aforesaid, in pursuance of the order and decree of the said court, and in 360 ABBOTTS' FORMS. Sheriff's Deed. conformity to the statute in such case made and provided, and also in con- sideration of the premises, and of the said sum of money so bidden as afore- said being first duly paid 1 by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, and by these presents does grant," bargain, Sell and convey unto, the said party of the second part, his 'heirs and" assigns, all those' two' certain lots, pieces or parcels of land, being [part of] the said 'mortgaged premises, situate, lying and being in the sixteenth" ward of the city of [etc., inserting description], toðee with all and singular the tenements, hereditaments, and appur- tenances to the same belonging, or in any wise appertaining : To have anii to hold all and singular the above-granted premises, with the appurten ances, and every part thereof, unto the said party of the second part, his heirs and assigns, forever. lis" witness whereof, 'the said A. B., master in chancery as aforesaid, hath hereto set his hand and seal, the day and ye,ar first above written. ' Signed, sealed and delivered ) A. B. [Seal.] in presence "of ) Master in Chancery. [Signature of witness.] 706. Sheriff's Deed After Sale On Execution. This indenttfbe, made the day of , in the year one thousand eight hundred and , between A. B., sheriff [or, late sheriff] of the county of , of the first part, and Y. Z., of the city of , party of the second part. Wheeeas, by virtue of a certain writ of execution issued out of the Court of in and for the city and county of , in favor of M. N., plaintiff, against O. P., defendant, to the said sherilf directed and deli7ered, commanding him that out of the personal property of the said O. P., judgment debtor, within his county, he should satisfy the judgment; or if sufficient personal property could not be found in said county, that *hen he should cause the amount of such judgment to be made out of the real property in his county belonging to such judgment debtor on the day when the said judgment was docketed in his county, or at any time there- after, as on reference to the said execution now of record in the said court will more fully appear : And whereas, because sufficient personal property of the said judgment debtor, in the said execution mentioned, could not be found in said county, whereof he, the said sheriff, could cause to be made the money specified in the said execution, he, the said sheriff, did, in obedience to the said command, levy on, take and seize, all the estate, rigl't, title and interest of the said judgment debtor, of, in and to the real property hereinafter particularly set forth and described, with the appur- tenances; and did, on the day of , in the year one thousand eight hundred and , sell the said premises by public auction, at [designating the salesroom], in the city of , in said county, he having first given notice of the time and place of such sale by advertising the same according to law; at which sale the said premises were struck off and sold to Y. Z.* fur the sum of dollars, he, the said Y. Z., * being the highest bidder, and that being the highest sum bidden for the same ; whereupon the said DEEDS. 361 By Sheriff. sheriff, after receiving from the said purchaser the said sum of money so bidden as aforesaid, gave to him such certificate as is by law directed to be given, and a certificate of such sale was duly filed in the office of the clerk of tho county, of ; § and whereas the fifteen months after such sale, and the giving of Sucht certificate thereof, have expired without any re- demption of the said pVemises, having beeri inadft: t Now this indenture WITNESSETH, that the said pavty'of the first part, 'sheriff [or, late sheriff] as aforesaid, by virtue" of the : Said %eciifion, and' in 'pursuance of the statute in such case made and pr6vided,'for and in consideration of the sum of money above mentioned, to him in hand paid as aforesaid, the receipt whereof is hereby 'acknowledged, has granted,- bargained, sold, released, assigned, conveyed and confirmed, and by these presents does grant, bargain, sell, release, assign,' convey and confirm unto the said Y. Z., his heirs or assigns, all the estate, right, title and interest of the said O. P., the judg- ment debtor aforesaid,' whereof he was seized or possessed on the day of , one thousand eight hundred and , or at any time afterwards, of, in and to all [here insert description of the premises] : Together with all and singular the tenements, hereditaments, and appurtenances thereto belonging or in any wise appertaining: To have and to hold the said above-mentioned and described premises, with the appurtenances, unto the said Y. Z , his heirs and assigns, forever ; as fully and absolutely as he, A. B# the said party of the first part, [late] sheriff aforesaid, can, may or ough to, by virtue of the said execution, and of the statute in such case made - and provided, grant, bargain, sell, release, assign, convey and confirm the same. , In witness wheeegf, the said [late] sheriff has hereunto set his hand and seal, the day and year first above written, i Signed, sealed and delivered j A. B. [Seal.] in presence of ) [Late] Sheriff of the County of [Signature of witness.] 707. The Same ; Conveying to an Assignee of the Purchaser. [As in the preceding form, substituting the name of the original pur- chaser in place of that of the party of the first part at the * *, and inserting the following words at the t] ; and whereas the said certificate of sale has been duly assigned by the said [naming purchaser], to the said party of the second part hereto, with directions to the said party of the first part to execute the deed to him the said party of the second part hereto. 708. Deed By Sheriff to Redeeming Creditor. (/) ' [As in Form 706, substituting the name of the original purchaser for that of the party of the fi's* part at the * *, and inserting the following in peace of the words between the § and the t] ; and whereas the said premises (/) This is no longer necessary in New recorded with like effect as a dee 1. Lawi- York. The sheriff's certificate may be of 1847, ch. 410, § 6. 362 ABBOTTS' FORMS. Deeds by Sheriff. were not, within one year, redeemed by any person entitled to make such redemption within that time, according to the statute in such case made ; and whereas Y. Z., a creditor of the said M. N., having, in his own name [or, as assignee, representative, trustee, or otherwise], a judgment in the Court of , of the State of , against the said M. N., for the sum of dollars, rendered before the expiration of fifteen months from the time of such sale, and which is a lien and charge on the premises so sold, presented to the officer making said sale, within three months after the expiration of the year from the time of said sale, a copy of the docket ol the said judgment, duly certified by a clerk of the said court, together with an affidavit, by the said Y. Z., of the true sum due on the said judgment at the time of claiming his right to purchase, and then paid the said officer the said sum of dollars, being the purchase-money at said sale, together with interest thereon, at the rate of per cent, per annum from the time of such sale, and has thereby acquired all the rights of the said [naming the original purchaser] to said premises, within the time, and in the manner and form prescribed by the statute in such case made and pro- vided ; and no other creditor of the said M. N. has acquired the said rights from or against the said [naming original purchaser]. Now, etc. 709. Deed- By Sheriff or Referee on Sale in Foreclosure. This indentuke, made the day of , 18 , between A. B., sheriff of the county of [or, A. B., a referee appointed by the Court, of the State of , dwelling in ], of the first part, and Y. Z., of the city of , in the county of , in the State of , of the second part : Whereas at a [special] term of the Court, of the State of , held at the City Hall, in the city of , on the day of , 18 , before Honorable J. K., one of the justices of said court, in an action then pending in the said court, between M. N"., plaintiff, and 0. P. and Q. B., defendants, it was, among other things, ordered, adjudged and decreed, by the said court* [here recite the substance of the decree and the making oj sale, which will commonly be somewhat as follows], that all and singular the mortgaged premises mentioned in the complaint in said cause, and in said decree described, or so much thereof as might be sufficient to raise the amount due to the complainant, for principal, interest and costs in said cause, and which might be sold separately, without material injury to the parties interested, be sold at public auction, according to the course and practice of this court, and under the direction of the said sheriff [or, referee], party hereto of the first part; that the said sale be made on the day of , then next, at o'clock in the noon of that day, at in the town of , in the county of , aforesaid ; that the said sheriff [or, referee] give [ weeks] public notice of the time and place oi such sale, according to the course and practice of said court, and that any of the parties in said cause might become a purchaser, or purchasers, on such sale; that the said sheriff [or, referee] execute to the purchaser, or purchasers, of the said mortgaged premises, or such part or parts thereof as should be sold, a good and sufficient deed, or deeds, of conveyance, for the DEEDS. 363 In I'nrti'.ion. same ; and whereas the said sheriff [or, referee], in pursuance of the order and decree of the said court, did, on the said day of , a. d. 18 , sell by public auction, at in the town of , aforesaid, the prem- ises in the said order mentioned, due notice of the time and place of such sale being tirst given, agreeably to the said order; at which sale, the premises hereinafter described were struck off to the said party of the second part, for the sum of dollars, that being the highest sum bid for the same : Now this indenture witnesseth,! that the said sheriff [or, referee], in order to carry into effect the sale so made by him, as aforesaid, in pursuance of the said order and decree of the said court, and in conform- ity to the statute in such case made and provided, and also in consideration of the premises, and of the said sum of money so bidden, as aforesaid, being first duly paid to Mm by the said party of the second part, the receipt whereof is hereby acknowledged, hath granted, bargained, sold and con- veyed, and by these presents doth grant, bargain, sell and convey, unto the said party of the second part, his heirs and assigns, forever, all [hire insert description of premises]: Togethek with all and singular the tenements, hereditaments and appurtenances to the same belonging, or in any wise appertaining : To have and to hold all and singular the said premises above mentioned and described, and hereby granted and conveyed, or in- tended so to be, unto the said party of the second part, his heirs and assigns, to the only proper use, benefit and behoof of the said party of the second part, his heirs and assigns, forever. In witness wheeeof, the said sheriff [or, referee] the party hereto of the first part, has hereunto set his hand and seal, the day and year first above written. Signed, sealed and delivered) A. B. [Seal.] in the presence of J Sheriff of County [or referee]. [Signature of witness.] 710. Deed by Sheriff or Referee on Sale in Partition. [As in the preceding form to the *, and then recite the substance of the decree, which will commonly be somewhat as follows:] that all and singular the premises described in the complaint in said action, or so much thereof as are hereinafter particularly described, be sold by or under the direction of A. B., sheriff [or, A. B., a referee appointed by said court], by public auction, in the county where said premises are situated; that the said sheriff [or, referee] do sell, in such separate parcels as he shall deem most for the benefit of the said parties, according to the rules and practice of the said court, and according to the statute in such case made and provided; that he first give week's previous notice of the time and place of such sale, in one of the public newspapers publ'shed in the said county of , and in such other manner as required by law ; that after such sale he make report thereof to the said court; and after such report of sale shall have been duly confirmed, he execute and deliver deeds of conveyance fur the said premise*, in fee-simple, to the purchasers thereof at the said sale ; and whereas the party hereto of the first part, the said sheriff [or, referee], in 36i ABBOTTS' FORMS. Deeds in Partition. pursuance of said order and decree, and having given due notice of the time and place of sale, agreeably to the said order and decree, did, on the day of , 18 , sell by public auction, at , in the town of , aforesaid, the premises in the said decree mentioned ; at which sale, the premises hereinafter described were struck off, and sold to the said party of the second part, for the sum of dollars, that being the highest sum bidden for the same ; and such sale having been reported by the said party of the first part to the said court, and duly confirmed : Now this indentuee witnesseth [continuing- as in preceding form from the t to the end]. ■ ■ * 711. Deed oy Commissioners on Sale in Partition. This indenture, made this day of , one thousand eight hundred and , between A. B., of , in the county. of , and State of , 0. D., of the same place, and E. F., of , in said county, of the first part, and Y. Z., of aforesaid, of the second part. Wheeeas in proceedings duly taken and had in the. Court of , by and between M. N., O. P. and Q. R., for the partition and division of certain premises mentioned in the petition in said proceedings, according to the respective rights of the parties interested therein, or for a sale of such premises, if it should appear that a partition thereof could not be made without great prejudice to the owners, pursuant to the statute re- lating to the partition of lands owned by several perspns, it was by the said court ordered, adjudged and decreed, by an order made on the day oi • . , .18 , at , that a sale of the said premises should be made in order to a division of the proceeds, according to the several rights and interests of the said parties; and thereupon, to make such partition, the parties of the first part to these presents being qualified, were, by the said court, appointed commissioners ; and whereas such proceedings were after- wards had in the said court upon the said petition, that the said commis- sioners so appointed, as aforesaid, were, by a rule of said court, ordered and directed to sell the said premises, with the appurtenances, at public auction, to the highest bidder ; giving notice, according to law, of the time and place of &uchsale; and that they should make report thereof to the said court; and whereas the said commissioners, pursuant to the said order and direction, after giving public notice of the time and place of such sale, did, on the day of , 18 , at , in the town ot , in said county of , expose to sale at public auction, all and singular the said premises, with the appurtenances ; at which sale [a part of] the said premises hereinafter described were sold to the said party of the second part for the sum of dollars, that being the highest sum bid for the same; and whereas the proceedings of the said comiiiis-. sioners in the premises were duly reported to the said court, and the sale approved and confirmed, on the day of , one thousand eight hundred and , as by the records of the said court more fully appears ; and the said commissioners were thereupon, by. an order of said court then made, directed to execute to' the said party of the second part, a convey- ance of said premises, purs;-.ant to the sale so made as aforesaid. Now this DEEDS. 365 On Foreclosure by Advertinement. dstjentuke "WITNESSETH, that the said parties of the first part', pursuant to the direction and authority to them given, and for and in consideration of the sum of money so bid as aforesaid, to them in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, have bargained, sold, aliened, conveyed and confirmed, and by these presents do bargain, sell, alien, convey and confirm unto the said party of the seoond part, all the estate, right, title, interest, claim and demand of the said parties of the first part, and also all the right, title, interest, claim and de- mand of all and singular the several and respective parties to the proceed- ings in partition aforesaid, of, in and to all [here insert description of the premises], together with all and singular the tenements, hereditaments and appurtenances to the same belonging, or in any wise appertaining ; and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and of every part thereof: To have and to hold the said above- bargained premises, with the appurtenances, and every part thereof, unto the said party of the second part, his heirs and assigns, to his and their only proper use and behoof forever; as fully and absolutely as the said parties of the first part can and ought to grant and convey the same, pur- suant to the statute and their authority as aforesaid. In witness whekeof, the said parties of the first part have hereunto set their hands and seals, the day and year first above written. Signed, sealed and delivered ) A. B, ) f [&«£.] in presence of i 0. D., > Commissioners. < [8eul.] [Signature of witness.] E. F., ) ([Seal'i 712. Deed by Mortgagee on Foreclosure by Advertisement. (g) This indenture, made the day of , in the year one thou- sand eight hundred and , between A. B., of , in the county of , and State of , merchant, of the first part, and Y. Z., of , in the said county, farmer, of the second part : "Wheueas, M. N"., by a certain indenture of mortgage, bearing date the day of , one thousand eight hundred and , for the consideration of the sum of dollars, did bargain, sell and convey unto A. B., his heirs and assigns, forever, the premises hereinafter described and granted [or, prem- ises in said mortgage particularly described, and of which the premises hereinafter described and granted are a part], with the appurtenances, sub- ject to a proviso, in the said indenture of mortgage contained, that the same should be void on the payment by the said M. N., his heirs, executors, administrators or assigns, of the sum of dollars, in the manner par- ticularly specified in the condition of a certain bond or obligation, bearing even date with the said indenture or mortgage ; with a special power in the said indenture of mortgage contained [here recite the power — e. g., thus], authorizing the said A. B., his heirs, executors, administrators and assigns, if default should be made in the payment of the said sum of money men- tioned in the condition of the said bond or obligation, with the interest, or of any part thereof, to sell and dispose of the mortgaged premises, or any (g) Tht recitals in this form are agreeable to the Laws of New York. 366 ABBOTTS' FORMS. Deed on Statute Foreclosure. part thereof, by public auction, for payment thereof; and to make and de- liver to the purchaser or purchasers thereof good and sufficient deed or deeds of conveyance in the law for the same, in fee-simple ; and whereas ♦-he said indenture of mortgage has been duly recorded according to law, in the office of , at , in Liber of Mortgages, page , as by the said indenture of mortgage, and the record thereof, and of the power therein contained, will more fully appear. And whereas default having been made in the payment of dollars of the money intended to be secured by the said indenture of mortgage, by which the power to sell became operative, and no suit or proceeding having been instituted to recover the same, the mortgaged premises hereinafter par- ticularly described were, on the day of , one thousand eight hun- dred and , sold under said power by public auction to the said party of the second part for the sum of dollars, being the highest sum bid for the same, due and sufficient notice having been previously given of such sale, by advertisement published for twelve weeks successively, once in each week, in a newspaper entitled the , printed in the town of , in County, being the county [or, one of the counties] iu which the mortgaged premises are situated, and by affixing a copy of such notice twelve weeks prior to the time therein specified for such sale, on the out- ward door of the courthouse in the town of , being the building in which the county courts are directed to be held in said county [nearest to the said premises] ; and by duly serving a copy of said notice at least four- teen days prior to the time therein specified for such sale, upon said M. K. [or, upon 0. P., the executor of said M. N., he being deceased], and upon O. P. and Q. B., grantees [or, mortgagees], of the premises, and on S. T. and U. V., being all the persons having any claim or lien on said premises subsequent to said mortgage, as required by the law. m Now, thebefoee, this indenture witnesseth, that the party of the first part, for and in consideration of the sum so bid, as aforesaid, to him in hand paid by the said party of the second part, the receipt whereof is hereby ac- knowledged, has granted, bargained, sold, aliened, remised, released and confirmed, and by these presents does grant, bargain, sell, alien, remise, re- lease and confirm unto the said party of the second part, and to his heirs and assigns, forever, all [here insert description of the premises] : Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining, as the same are described and conveyed in and by the said indenture of mortgage ; and also, all the estate, right, title, interest, property, claim and demand whatsoever, both in law and equity, of the said M. N., as well as of the said party of the first part, of, in and to the above-described premises, with the appurtenances, as fully, to all intents and purposes, as the said party of the first part hath power and authority to grant and sell the same, by virtue of the said in- denture of mortgage, and of the statute in such case made and provided, or otherwise : To have and to hold the said above-granted premises, with their appurtenances, and every part thereof, unto the said party of the second part, his heirs and assigns, for ver. In witness [etc., as in Form 711]. DEEDS. 367 Under Judicial Sale. 713. Deed by a Referee, Pursuant to a Judicial Sale, ; — An Administra- trix, A Husband and Wife in Right of the Wife, the Wife being also an Executrix, and Infants, by their Guardians, Joining as Parties. Tins indenture, made this day of , in the year one thousand eight hundred and , between M. K, special referee and trustee, ap- pointed by the Supreme Court, party of the first part, A. B., of , ad- ministratrix with the will annexed of 0. B., deceased, and the said A. B., in her own right, C. D., of , and E. D. his wife, in right of the said E., and the said E. as executrix of the last will and testament of G. H., de- ceased, J. H., of , and K. H., of , by J. K., their guardian, parties of the second part, and T. Z., of , of the third part: Whereas, at a special term of the Supreme Court of the State of , held for the county of , at , on the day of , one thou- sand eight hundred and , it was among other things ordered, adjudged and decreed by the said court, in a certain cause then pending in the said court, between [here name the parties to the suit], that the said M. N., as such referee and trustee, for that purpose appointed by the said decretal order, proceed with all convenient speed, to sell for ca^h, all real estate which the said C. B., deceased, died seized or possessed of or entitled to, and that each distinct farm, tract or lot be sold separately, and at public auction, in the county of , by or under the direction of said referee and trustee, and that said referee and trustee give public notice of the time and place of such sale, by advertising the same twice a week, for three weeks, in the city of , and once a week, for three weeks, in any county in this State in which the property may be situated, as in cu-^e of sale of mortgaged premises in suits for the foreclosure of mortgages on lands, and that such referee and trustee execute to the purchaser or pur- chasers, good and sufficient deed or deeds of conveyance therefor ; and it was further ordered, adjudged and decreed, in and by the said decreta. order, that the parties to the said suit, respectively — that is to say, the adult parties, personally, and the said infant defendants by their several guardians ad litem [who were thereby severally appointed and authorized for that purpose] — unite with the said referee and trustee in such deed or deeds of conveyance ; and that the said E. D., if living, unite in the said deed or deeds as such executrix as aforesaid, and in case the said E. D. should die before the snid sale and conveyance, then it was ordered that no proceedings he had towards such sale, until some party to said suit should obtain letters of administration with the will annexed, of the goods, chattels and credits not administered of the decedent, G. H., thereby left without a personal representative, and that the party obtaining such letters of ad- ministration also unite as such in the said deed or deeds of conveyance. And whereas the said M. N., the said party of the first part, as referee or trustee aforesaid, in pursuance of the said decretal order of the said court, did, on the day of , one thousand eight hundred and , sell at public auction, at the Merchant's Exchange, in tlie city of , the premises hereinafter mentioned and described, due notice of the time and place of such sale being first given, ,, v i u^,Z)$fcl4i>, Correct Mistakes in a Prior Gonveijance. . : fljnjs TNDEN'i'ufifi, : rfade' this day of , 18 , between A. B., of iiv , merchant; - of the first part, and T. Z., of , farmer, of the second part, witnesseth : ■ DEEDS. 369 Confirmation. "Whekeas the said A. B. did, on or about the day of , 18 , ex- ecute and deliver to the party of the second part [or, to one Y. Z , under whom the party of the second part hereto claims], for the consideration therein mentioned, a conveyance of certain lands in , hereinafter more particularly described, which said conveyance is recorded in the office of the , of County, book , page , of conveyances. And whereas, in said conveyance, by mistake, the words were written in- stead of the words [or otherwise specify the errors]. And whereas, to prevent difficulties hereafter, it is expedient to correct said errors : Now, therefore, this indenture witnesseth, that the said party of the first part, in consideration of the premises and of one dollar to him paid by the party of the second part, hereby grants, conveys, releases and confirms unto the said party of the second part, his heirs and assigns, forever, all [etc., insert- ing description, and concluding as in other cases]. 715. Deed Confirming a Prior Voidable Deed. This indenture, made this day of , one thousand eight hundred and , between A. B., of , in the county of , and State of , farmer, of the first part, and Y. Z., of , in the said county, merchant, of the second part. "Whereas, by a deed bearing date, on the day of , 18 , and therein mentioned to be made by the party hereto of the first part [with one 0. D.] of the one part, and [or, unto] the said Y. Z., of the other part, and in consideration of , the premises hereinafter described were granted and conveyed, or intended so to be, to the said Y. Z., his heirs and assigns, forever ; and whereas [here recite de- fect which rendered the deed voidable — e. g., infancy, thus :] the said A. B., at the time of the date and making the said in part recited deed, was not of the age of twenty-one years, but has since attained to such age, and has this day, and before the execution of these presents, duly sealed and de- livered the said in part recited deed. Now, this indenture witnesseth : That [as well in the performance of a covenant for further assurance in the said deed contained, as also] for and in consideration of the sum of dollars, to him, the said A. B., in hand paid by the said Y. Z., the receipt whereof the said A. B. does hereby acknowledge, he, the said A. B., has, and now by these presents does, ratify, approve and confirm(A) said deed, and remise, release and quit-claim unto the said Y. Z., in his actual posses- sion now being, by virtue of the before-mentioned deed, and to his heirs and assigns, all [here insert description of premises], together with all the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining. To have and to hold all and singular the above-de- scribed premises, together with the appurtenances, and every part thereof, into said party of the second part, his heirs and assigns, forever. And the said [continuing as in Form 677, from the * to the end].(i) (h) Theae are the appropriate words for (i) A covenant for further assurance such a deed. 2 HilliariH R. P., 315. mav properly be inserted. See Form 626. 24 370 ABBOTTS' PCHiMS. Deed of Release. 716. Short Form of the Same ; By Indorsement on the Prior Deed. Know all men by these presents, that I, A. B., of , the grantor within named, do by these presents grant, ratify and confirm unto Y. Z., of , all the estate which I may have in the premises within described with the appurtenances, to have and to hold unto him, the said Y. Z., and his heirs and assigns, forever. Witness my hand and seal, this day of , 18 . Signed, sealed and delivered / A. B. [Seal,] in presence of f [Signature of witness.] 717. Release by a Trustee to the Grantee of His Cestui que Trust. Know all men by these presents, that whereas M. N". heretofore obtained u judgment against O. P., of , whereon a writ of fieri facias was issued ; and all the estate, right, title and interest of the said O. P. to the premises hereinafter mentioned and described, together with divers other premises, was sold by the sheriff of the county of , under and by virtue of the aforesaid writ ; and whereas all the estate, right, title and in- terest of the said 0. P., so sold as, aforesaid, was his life estate in and to the said premises ; and whereas the said M. N". became the purchaser thereof; and afterwards, by indenture hearing date the day of , in the year one thousand eight hundred and , and which was recorded in the office of the in and for the county of , in liber of convey- ances, page , on the day of , 18 , as by reference thereto more fully appears, conveyed to me, A. B., of , in trust for the benefit of the said 0. P., all his right, title and interest in and to the premises herein mentioned and described, together with divers other premises in the said indenture above referred to, as by reference to the record thereof will appear : Now, theeefoee, know tk, that I, A. B., for the purpose of carrying into effect the said trust, and at the request of the said O. P., which said request is testified by his signature indorsed hereon, and in consideration of one dollar to me in hand paid by Y. Z., of , have, and by these presents do, remise, release and quit-claim to the said Y. Z., and to his heirs and assigns, all my right, title and interest in and to all [describing premises], together with the appurtenances; to hate and to hold, unto the said Y. Z., his heirs and assigns, to his and their only proper use, benefit and be- hoof forever. In witness whereof, I have hereunto set my hand and seal, this day of , in the year one thousand eight handred and Signed, sealed and delivered ) A. B. [Seal.] in the presence of J [Signature of witness.] DEEDS. 371 Voluntary Partition. 718. Deed of Partition. This indenture, made the day of , in the year one thousand eight hundred and , between A. B., of , in the county of , and State of , merchant, of the first part, and 0. D., of , in the said county, farmer, of the second part, and.E. F., of aforesaid, mason, of the third part : Whereas tne parties hereto have and hold as tenants in common [or, as joint tenants] in equal parts [or, viz., the said A. B. two equal undivided sixths, and the said 0. I>. one equal undivided sixth, and the said E. F. three, etc., of] a certain tract, piece or parcel of land situate in , being the same premises conveyed to them by M N. by deed bearing date the day of , 18 [or, devised to them by the will of M. N"., or ulher- wise, according to the fact] ■ and whereas the parties hereto have mutually agreed to make partition of said land and hold their respective shares in severalty: Now this ixdenicjee witnessks — First, the said A. B., party of the first part, shall from henceforth have, hold, possess and enjoy in sev- eralty by himself', and to him, and his heirs and assigns, for his share and proportion of the said lands and premises, all [here insert description of the part allotted to him]; and the said parties of the second and third parts, in consideration of the premises [and of the sum of dollars to them paid by the said A. B. for equality of partition, the receipt whereof is hereby ac- knowledged], do hereby give, grunt, set over, convey, release and confirm unto the said A. B., the party of the first part, his heirs and assigns, for- ever, the last above-described premises: Tooether with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest [dower and right of dower(j)], property, possession, claim and demand whatsoever of the said parties of the second and third parts, both in law and in equity, of, in and to the above-granted premises, with the hereditaments and appurtenances : To have and to hold all and singular the above-granted premises, together with the appurtenances and every part thereof, unto the said party of the first part, his heirs and assigns, for- ever [if there is any encumbrance, add, subject to, etc., specifying it]. And the said parties of the second and third parts do hereby severally, and not jointly, but each for himself, and for his heirs, executors and admin- istrators, covenant, promise and agree, to and with the said party of the firsl part, that he, the said A. B., his heirs and assigns, shall or lawfully may, from time to time, and at all times hereafter, forever, freely, peaceably and quietly, have, hold, occupy, possess and enjoy the said first-described piece or allotment of land, with the appurtenances, and receive and take the rents, issues and profits thereof, without any molestation, interruption or denial of them, the parties of the second and third parts, their heirs or as- signs, or of any other person or persons whatsoever, law fully claiming or (j) Omit these vords, unless a wif: joins to bar her dower as to this allotment. 372 ABBOTTS' FORMS. Deed in Confirmation of Devise. to claim by, from or under them or either of them, or by or with his or their act, privity or procurement. Second. The said C. D., party of the second part, shall from henceforth have, hold, possess and enjoy in severalty by himself, and to him, and his heirs and as^gns, for his share and proportion of the said lands and prem- ises, all [here insert description of the part allotted to him] ; and the said parties of the first and third parts do hereby give, grant, set over, convey, release and confirm unto the said 0. D., the party of the second part, his hoirs and assigns, forever, the last above-described premises: Toðeb with [etc., as above ; and so on with the allotment to the party of the third part] . In witness whekeof, the parties to these presents have hereunto inter changeably set their hands and seals, the day and year first above written. Signed, sealed and delivered \ [Signatures and seals.] in the presence of J [Signature of witness.] 719. Deed Among Heirs in Confirmation of. Devises, With Covenant to Abide By the Will. This indenture, made the day of , in the year one thousand eight hundred and , between A. B., widow of B. B., late of , in the county of , farmer, deceased, of the first part; 0. B., of the same place, and L. B. his wife, of the second part ; E. B., of the same place, and J. B. his wife, of the third part : Whereas the said B. B., late of in the County, farmer, deceased, being in his lifetime seized of the real estate therein mentioned, did, in due form of law, make and publish his last will and testament in writing, containing devises, of which the following are a copy [here set forth the provisions ; or, refer to the will cm record] : And whereas the said testator after making the said will, died seized as aforesaid, without revoking or altering the same ; and whereas the said A. B., party of the first part, is the widow, and the said 0. B. and E. B. are the children, devisees and heirs at law of the said B. B., the testator, deceased [and whereas doubts have been suggested whether the words contained in the said will are sufficient in the law to pass an estate in fee- simple to the said A. B. for the lot of land in Third-street, devised or intended to be devised to her, and also to pass estates in fee to the said 0. ,B. and E. B., in and to' the several premises respectively devised or intended to be devised to them] ; and the said several parties to these presents, being willing and desirous that the real inter tions of the said testator should be carried into effect notwithstanding any errors or imper- fections which may or do exist in the said will, have agreed to make and execute an instrument of writing, under their respective hands and seals, which shall be sufScient for that purpose. Now thkeefohe, this indenture witnesseth, that the said 0. B. and L. B. bis wife, and E. B. and J. B. his wife, for the considerations aforesaid, and for the further consideration of one dollar to them in hand paid by the said A. B., the receipt of which they do hereby acknowledge, have granted, DEEDS. 378 Confirmation of Devise. bargained, sold, aliened, remised, released and confirmed, and by these presents do fully, freely, and absolutely grant, bargain, sell, alien, remise, release and confirm unto the said A. B. in her actual possession now being, and to her heirs and assigns forever, all that lot of land situate in Third- street, in the city of New York, and mentioned in the said will as given to her ; together with the appurtenances, and also all and singular the right, title, interest, dower, claim and demand whatsoever, both at law and in equity, of the said C. B. and L. B. his wife, and E. B and J. B. his wife, of, in and to the same : to have and to hold the said lot of ground in Third- street with the appurtenances, to the said A. B., her heirs and assigns, for- ever ; and the said 0. B. and L. B. his wife, and E. B. and J. B. his wife, do further release and confirm unto the said A. B., the one-half of the dwelling-house at , in which the said B. B., the testator, resided, to have and to hold the same to the said A. B. during the term of her natural life. And this indenture further witnesseth, that the said E. B. and J. B. his wife, for the considerations aforesaid, and also for the further consideration of the sum of one dollar to them in hand paid by the said 0. B., the receipt whereof they do hereby respectively acknowledge, have granted, bargained, sold, aliened, remised, released and confirmed, and by these presents do fully, freely and absolutely grant, bargain, sell, alien, remise, release and confirm unto the said E. B., and to his heirs and assigns forever, the house and land now in his possession, situate in aforesaid, and devised or intended to be devised to him in and by the aforesaid will, together with the appurtenances and also all the estate, right, title, interest, dower, claim and demand whatsoever, both at law and in equity, of them, the said E. B. and J. B. his wife ; to have and to hold the said premises, with the appurtenances, to the said 0. B., his heirs and assigns, to the sole and only proper use, benefit and behoof of the said 0. B., his heirs and assigns, forever. Axd this indenture further witnesseth, that the said 0. B. and L. B. his wife, for and in consideration aforesaid, and for the further consideration of one dollar to them in hand paid by the said E. B., at or before the en- sealing and delivery of these presents, the receipt of which they do hereby acknowledge, have granted, bargained, sold, aliened, remised, released and confirmed, and by these presents do fully, freely and absolutely grant, bargain, sell, alien, remise, release and confirm unto the said E. B. in his actual possession now being, and to his heirs and assigns forever, the dwelling-hou;-e of the said testator [subject to the life-estate of the said A B. in a moiety thereof J, together with the appurtenances; and also all the estate, right, title, intere-t, dower, claim and demand whatsoever, at law and in equity, of the said 0. B. and L. B. his wife, of, in and to the same : to have and to hold all and singular the said premises, with the appurte- nances, unto the said E. B., his heirs and assigns, to the sole and only proper use, benefit and behoof of the said E. B., his heirs and assigns, forever. And this indenture further witnesseth, that the said E. B. for himself, his heirs °ud assigns, doth hereby freely grant and confirm unto the said 374- ABBOTTS' FOEMS. Deeds of Gift. 0. B., his heirs and assigns, forever, the use and privilege of a road to past and repass to and from the river, with wagons, horses and carriages, through the land hereinhefore conveyed to the said E. B., to have and to hold the said use and privilege to the said 0. B., and to his heirs and assigns forever. And the several and respective parties to these' presents, each of them for himself, herself and themselves, his, her and their heirs, executors and administrators, do herehy mutually covenant, promise, grant and agree to and with the other and others of them, his, her and their heirs, executors, administrators and assigns, that in every respect and particular not herein- before especially, agreed upon and provided for, they, the said parties, and each and every of them respectively, and their and each and every of their legal representatives, shall and will in all things abide by the will of the said testator, and carry the same into full execution and effect, agreeably to the intentions of the said testator, and according to the true intent and meaning of the same. In witness whekeof, the parties to these presents have hereunto inter- changeably set their hands and seals, the day and year first above written. Signed, sealed and delivered ) [Signatures and seals,] in presence of ) [Signature of witness.] 1 720. Deed of Oift.(k) This indenture, made this day of , one thousand eight hundred and , between A. B., of , in the county and State of , merchant [and 0. B. his wife], of the first part, and B. B., of the same place, son of the said A. B., physician, of the second part: Witnesseth, that the said A. B., for and in consideration of the natural love and affection, which he • has unto the said B. B., by these presents does give, grant, alien, enfeoff and confirm unto the said B. B., his heirs and assigns, forever, all [here insert description of the premises] : Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining; and the reversion and reversions, remainder and re- mainders, rents, issues and profits thereof, and all the estate, right [dower and claim of dower(Z)], title, interest, property, claim and demand, whatso- ever, of the said party [or, parties] of the first part, of, in and to the said premises, with the appurtenances, and every part thereof: To have and to hold all and singular the above-granted premises, with the appurtenances, unto the said B. B., his heirs and assigns, forever. In witness whekeof, the party [or, parties] of the first part has [or, have] hereunto set his hand and seal [or, 'heir hands and seals], the day and year above written. Signed, sealed and delivered ( [Signatures and seals.] in presence of ) [Signature of witness.] (Is) For the form of a covenant to stand (I) Omit these words, unless a wife seized to uses, see chapter of Covenants, joins. DEEDS. 375 Exchange. 721. Deed of Bxchange.Qn) This indenture, made this day of , in the year one thousand eight hundred and , between A. B., of , in the county ot , and State of , merchant, of the first part, and Y. Z., of , in the said county, farmer, of the second part: Witnesseth, that the said party of the first part has given and granted, and by these presents does give and grant unto the said party of the second part, his heirs and assigns, forever, all [here insert description of pre/nines], together with the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining, in exchange of and for the lands hereinafter mentioned, of the said party of the second part. To have and to hold the said premises, with the appurtenances, and every part thereof, to the said party of the second part, his heirs and assigns, forever, in ex- change for the said lands hereinafter mentioned. ■ [Here may insert the covenants, if any, which are usually the covenants against encumbrances and' for further assurance.] And the said party of the second part has likewise given and granted, and by these presents does give and grant unto the said party of the first part, his heirs and assigns, forever, all [here insert description of premises], together with the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining, in exchange of and for the lands hereinbefore mentioned, of the said party of the fir^t part. To have and to hold the said premises, with the appurtenances, and every part thereof, to the said party of the first part, his heirs and assigns, forever, in exchange for the said lands hereinbefore mentioned. [Here may insert the cneiiants, if any, which are usually the covenants against encumbrances and for fur- ther assurance ; and may, if desired, add the following proviso for re-entry in case of eviction.] Provided always, nevertheless, and these presents are upon this condi- tion, and it is the true intent and meaning of the parties hereunto, that if it shall happen that either of the said parties to.these presents, their execu- tors, administrators or as^gns, shall at any time hereafter, during the said respective terms above granted, by color or means of any former or other conveyance, or otherwise howsoever, be ousted or evirted of and from the possession of either of the said messuages or tenements, and other the premises, so respectively granted in exchange as aforesaid, or any part thereof, then and in any such case the grant and conveyance made by these presents shall be utterly void an^ of none effect ; and thenceforth it shall and may be lawful to and for the party or parties so ousted or evicted, into his or their said former messuage or tenement and premises, with all and singular the appurtenances, to re-enter, and the same to have again, re- possess and enjoy, as of his and their former estate or estates, any thing herein contained to the contrary notwithstanding. (m) This form of conveyance is rarely change to give an ordinary deed to the used in this country. It is commonly other, more convenient for each party to an ex- 376 ABBOTTS' FORMS. Description of Property in Deed. In witness whereof, the parties to these presents have hereunto inter- changeably set their hands and seals, the day and year first above written. Signed, sealed and delivered ) [Signatures and seals.} in presence of j [Signature of witness.] Various Descriptions of Property and Appurtenances; Exceptw Reservations ; Conditions. 722. Description of Land by No. of Lot and Township. All that certain tract or parcel of land known as Lot No. 2 (two), in Township No. 3 (three), in range 4 (four), in the comity of , and State of aforesaid, containing acres, (n) 723. Description by Metes and Bounds.(o) All that certain tract, piece or parcel of land situate, lying and being in the town of , county of , and State of , known and described as follows : beginning at a stake and stones in the northeast cor- ner of the meadow-lot, now or late of M. N, running thence northerly(p) sixteen (16) rods ; thence north twenty-three degrees (23°) ; east, ten (10) rods ; thence south twenty -five degrees, ten minutes (25° 10') ; east, sixteen (16) rods, ten (10) inches ;. thence south by west to the point of beginning, containing acres, (q) -724. The Same of a City Lot. All that certain lot, piece or parcel of land, with the buildings thereon erected, situate, lying and being in the Nineteenth Ward of the city of New York, bounded and described as follows — to wit : beginning at a point on the westerly side of Second Avenue, distant twenty (20) feet and five (5) inches northerly from the northerly side of Fiftieth-street, and running thence westerly through a party wall and parallel^) with Fiftieth-street, seventy (70) feet; thence northerly and parallel with Second Avenue, twenty (20) feet; thence easterly to and through another party wall and parallel(r) with (n) This form conveys the whole lot, due north, due south, etc. Brandt v. and the reference to the area will be con- Ogden, 1 Johns., 156 ; Jackson v. Reeves, trolled by the words referring to the lot. 8 Gai., 298. Hathaway v. Power, 6 BUI, 458. (q) The specification of the number of (o) Where land is conveyed by metes acres oannot control a palpable descrip- and bounds, running from fixed and visi- tion of a larger area by monuments, ble monuments, whether natural or artifi- courses and distances. Jackson v. Me- dal, such monuments or marks appearing Connell, 19 Wend., 175. upon the land must be adhered to, and (r) This word should not be inserted will control the distances, courses and where there can be any mistake, unless it area specified. Wendell v. Jackson, 8 is material, as a line described as parallel Weni., 188; Jackson v. Camp, 1 Cow., may, be so located, though it violates 605. course and distance. Northrop v. Sum- (p) Northerly, southward, etc., if used ney, 27 Barb., 196. with-ut c[.uali ication, are taken to mean DEEDS. 377 Description of Property. Fiftieth-street, seventy (70) feet to the westerly side of Second Avenue, and thence southerly along the said westerly side of Second Avenue, twenty (20) feet to the point or place of heginning. 725. Description by Reference to a Map. All those lots of ground situate, lying and being in the Ward of the city of , known and distinguished on a certain map of the prop- erty of M. N"., made by O. P., city surveyor, and now on file in the office of , in said , by the numbers one hundred and seventeen (117) and one hundred and eighteen (118). (s) 726. Description Bounding by Rivers, Highways and Other Boundaries. All that tract of land situate, lying and being in the town of , in said county of , and bounded and described as follows : on the east by the Ox Bow Creek,(<) on the southeast by the northwest bank of the Salmon River, (u) on the south by land, now or late of M. N.,(«) on the west by [the east side of](io) the highway leading to P. 727. Description of Water-Lot. All that certain water-lot, or vacant ground and soil under water, to be made land, and gained out of the North or Hudson Kiver, and bounded, described and containing as follows : Beginning [here give metes and bounds], («) To this is frequently added the (w) Where a street or highway is given boundaries, as in the preceding form; as a boundary, the centre line of the way but the map will control Buch bounds if is intended, unless the side is expressly there be any discrepancy. Jackson v. fixed upon. Jackson v. Hathaway, 15 Diefendorf, 1 Cai., 493. Johns., 447. Even bounding by a line (t) This will give to the thread of the described as "commencing at the side of stream, if it is not navigable, and the tide the street and running along the street," does not ebb and flow. If it is intended or by courses and distances which pro- not to convey the bed of the creek, the duce a line along the side of the street, or west bank should be specified as the by a map which gives the side as a boun- boundary. Jackson v. Loun, 12 Johns., dary, will convey the land to the centre. ' 252 ; Luce v. Carley, 24 Wend., 451 ; 13 Conn., 23 ; Sizer i. Devereaux, 16 Child v. Starr, 4 Hill, 369. Barb., 160 ; Hammond v. McLachlan, 1 (u) This will give only to high-water Sand/., 328 ; Bissell v. N. Y. Central Kail- mark, if the river is navigable. Halsey road Co., 2S If. T., 61. v. McCormick, 13 N. ¥. (3 Kern.), 296 \ These are the established rules in New Wiswall v. Hall, 8 Paige, 313. There are York. In some other States, such con- local exceptions to this rule, however. veyances do not pass the fee of the road- (v) As to whether this will be taken to way. mean the apparent boundary or the true It is, however, the general rule, that line, in case of a discrepancy, compare bounding the land upon a way amounts Jackson v. Camp, 1 Cow., 605; Doe v. to a covenant that such way exists. Thompson, 5 lb., 871 ; Northrop v. Sum- ney, 27 £arb., 196. 378 ABBOTTS' FOEMS. Description of Property in Deed. 728. Description of Unpatented Land. All that tract or parcel of land, situated [etc.'], containing acres, be the same more or less, surveyed or intended to be surveyed, by virtue of a warrant for the same, bearing date the day of , one thousand eight hundred and , granted to the said A. B. as by the said warrant remaining filed in the office of , will appear, subject to the payment of whatever may be due to the commonwealth for patenting the same. 729. Description of an Undivided Share. The one undivided third part of all [etc., describing the premises as in other forms']. 730. Description of an Equity of Bedemption.(x) All that certain lot, piece or parcel of land [describing it by bounds, or otherwise, as in other forms], the premises above described being subject to a certain indenture of mortgage made by M. N. to O. P. to secure payment of the sum of dollars, bearing date on the day of , 18 [and recorded in the office of the of the county of , in liber of mortgages, page ], on which the sum of dollars, with interest, from the day of , is due. 731. The Same ; Where the Grantee Covenants to Pay the Mortgage. All that certain lot. piece or parcel of land [describing it by bounds, or otherwise, as in other forms] the premises above described, being-subject to a certain indenture of mortgage made by M. N\ to 0. P., to secure payment of the sum of dollars, bearing date on the day of ,18 [and recorded in the office of the of the county of , in liber of mortgages, page ], on which the sum of dollars, with interest, from the day of , is due, which said mortgage forms part of the con- sideration above mentioned, and which the said party of the second part hereby assumes and agrees to pay.(y) (x) A conveyance in these terms does will render the grantee liable to indemnify not render the grantee personally liable his grantor against the uiortgiige. Thoiup- for the mortgage debt. To raise such lia- son v. Thompson, 4 Ohio Stat., 833 ; Hurt- bility, there must be an agreement to pay ley v. Harrison, 24 iK Y., 172 ; and cases the debt, made either with the mortgagee cited, Townsend v. Ward, .27 Conn., 610. or holder of the mortgage, or with some If the grantor is personally liable on tho person legally or equitably bound to pay mortgage, this covenant will render the it. Tillotson v. Boyd, 4 Sand/., 516 ; grantee liable directly thereon ; also for Stebbins v. Hall, 29 Barb., 524. any deficiency on foreclosure. Trotter v. (y) The above form, even without tho Hughes, '.2 JS T . Y., 74. express agreement to pay the mortgage, DEEDS. 379 Land with Easement. 732. Description of a Lot, with a Right of Way, and of Making a Drain. All [etc., bounding the lot as in other forms, and adding :] Together with a right of way in and over a certain strip of land along the west side of the store on the above-granted premises, for the said party of the second part, his heirs and assigns, and his and their servants, and the tenants and occupants from time to time of the premises above granted, and any other person or persons for his and their benefit and advantage [in common with the said party of the first, part, his servants and the tenants and occu- pants of his premises adjoining], at all times freely to pass and repass, on foot or with animals, vehicles, loads or otherwise, to and fro, between the" premises hereby granted and the highway or street, the said strip of land and way being feet wide. And also together with the right to enter a drain from the above-granted premises into the drain now running under the said strip of land, to be used as a way as aforesaid, and the same to use as a sewer or drain from the above-granted land to the common sewer in the street or highway [subject, nevertheless, to the moiety or equal half part of all necessary charges and expenses which shall from time to time accrue, in paving, repairing and cleansing the said way and drain]. 733. Description of a Lot Abutting on An Alley With Sight of Way Therein, Subject to Charges and Covenants. All that certain lot, piece or parcel of land, with the buildings thereon erected, situate in the Fifth Ward of the city of New York, on the westerly side of Broadway, being part of a tract of land formerly called " The Pas- ture Lots," formerly the property of Augustus Van Oortlandt and Frederick Van Cortlandt, and distinguished in maps and conveyances relating thereto as lot No. 16 (sixteen) and the letters F. V. 0., being bounded as follows — to wit: Beginning at a point on the westerly side of Broadway, distant southwardly fifty feet from the southwesterly corner of Broadway and "White-street ; thence running westerly along the lot distinguished on said maps and conveyances by the Number 17 and the letters A. V. C, to a cer- tain alley in the rear thereof that extends from "White-street to the street now called Franklin-strest, lately Sngar-Loaf-street ; thence southerly along said alley to the lot distinguished on i he said maps and conveyances by the Number 15 and the letters A. V. 0. ; then easterly along the said last- mentioned lot to Broadway ; and thence northerly along the said Broad- way to the place of beginning ; containing in front and rear each twenty- five feet, and in length on each side one hundred and fifty feet, be the same more or less. And also the right and privilege to use the said alley as a way or passage from the said lots to the aforesaid streets in common with all the proprietors of the other lots of ground adjoining upon that alley ; which said alley is twenty-five feet in width, and was made by land taken off the rear of- the said lot and the other lots fronting upon Broadway in the same range and block with it ; whereby those lots have become re- duced in length from cne hundred and seventy-five feet (their original length) to one hundred and fifty feet or thereabouts, be the same more or 380 ABBQTTS' FOEMS. Conveyance of Land Subject to Easement. less. And it is understood that all charges and expenses of sustaining the said alley, or relating thereto, are charged and chargeahle upon all and every of the lots adjoining upon that, alley in equal proportions. And it is further understood and agreed, that the lot of ground hereby intended to be granted, bargained and sold, is hereby bargained, granted and sold, sub- ject to that charge or encumbrance, as also to all such covenants, conditions and restrictions as may be contained in any existing deed or writing what- soever establishing the said alley, and for restraining the owners of the said lot of ground hereby granted from erecting any buildings other than a coach-house or stable fronting on the said alley. 734. Grant of Easement Appurtenant to Lot Bounding on a Court or Alley. [Add :] Together with one-half of the part of said court or alley which lies in front of the premises hereby conveyed, subject to a perpetual right of way over the same to all and every the owners and occupants of the premises lying adjacent to and abutting on said court or alley ; and the par- ties of the first part hereby convey to the said party of the second part, his' heirs and assigns, a perpetual right of way from street through the said alley or court to and from the premises hereby conveyed, in common with said owners and occupants, and also a perpetual right and privilege to use in common with them the drain or sewer running through the centre of said court or alley. 735. Premises Subject to Easement for Party-walls. [Add :] Subject, nevertheless, to the use of the walls on the easterly and westerly sides respectively of the said lot, by M. N. and 0. P., their heirs and assigns, the grantees of the said party hereto of the first part of the lots next adjoining the lot hereby conveyed on said sides respectively, as party- walls, (z) 736. Premises Subject to Easement for Drain. [Add:] Subject, nevertheless, to a sewer or drain passing through the premises hereby conveyed for the use and benefit of other premises of the said party of the first part, adjoining the same upon the south, said sewer and drain to remain as at present used for the benefit of the adjoining premises.(a) 737. Description of Water Power.(b) All [etc., describing the land, as in other cases], together with the priv- ilege of bringing water from the dam to the mill thereon [or, a mill to be (2) If the easement is created by a deed (i) For another form, -measuring by on record, it is advisable to refer to it. capacity of flume, see Form 7S5. (o) See preceding note. DEEDS. 381 Exceptions and Reservation. erected thereon], sufficient to keep a saw-mill(e) in operation, at all times when there is so much more than is wanted, by (he party of the first part, his heirs or assigns, to drive a grist-mill with three run of stones, (c) 738. Reservation of Ground for Streets, etc. [Insert immediately after the boundaries :] saving and reserving from and out of the hereby granted premises such streets as are now or hereafter may be laid out through the premises hereby granted; and whenever any such streets may be laid out, over and across the said premises, that the same shall be made at the expense of the said party of the second part, his heirs or assigns, and be and forever remain public streets, in like manner as other public streets are or ought to be. 739. Exception and Reservation of Mines, With Covenant for Payment of Rent and Damages. Excepting and reserving unto the said A. B., his heirs and assigns, all mines, veins, seams and beds of coal, ironstone and other minerals whatso- ever already found, or which may hereafter be found, upon or under the lands hereby assured, or expressed so to be, with full liberty of ingress, egress and regress at all times for him, the said A. B., his heirs and as- signs, and his and their servants, agents and workmen in and upon the said lands, and either with or without horses and other cattle, carts and wagons, and other carriages, for the purpose of searching for, working, get- ting and carrying away the said mines and minerals, and with full liberty also for him, the said A. B., his heirs and assigns, to sink, drive, make and use pits, shafts, drifts, adits, air-courses and water-courses, and to erect and set up fire and other engines, machinery and works, and to lay down railroads and other roads in, upon, under and over the said lands, or any of them, for the purpose of more conveniently working and carrying away the said mines and minerals, and also to appropriate and use any part of the surface of the said lands for depositing, placing and heaping thereon the minerals, waste, rubbish and other substances which may be gotten from the said mine", and generally to do all other acts and things necessary or proper for working and getting the said mines and minerals according to the most approved practice of mining in the district: Peovideo always, that the said A. B., his heirs or assigns, do and shall pay to the said Y. Z., his heirs or assigns, the annual sum of dollars for every acre, and so in "proportion for any less quantity than an acre of land, the surface whereof shall be appropriated or used for any of the purpo=es aforesaid, so long as such appropriation or use shall continue, and until the surface shall be re- stored, as nearly as may be practicable, to its original state and condition before such appropriation or use commenced ; and provided, also, that the (e) Designating thus a particular use than an equivalent power. Cromwell V. will not be construed to exclude by im- Selden, 8 iK Y. (3 Comist. ), 258 ; Wakely plication other uses calling for no more -v. Davidson, 26 N. Y. t 387. 382 ABBOTTS' FORMS. Deed of Various Estates less than Fee. working of the said mines shall be conducted in such a manner as not to endanger any buildings now being on the said lands, or which may here- after be erected on the site of, or within yards of the site of any pres- ent buildings, and generally to do as little damage or injury to the surface of the said lands as shall be consistent with the proper working of the said mines ; and provided, also, that the said A. B., his heirs or assigns, shall pay to the said Y. Z., his heirs or assigns, adequate compensation for all damage or injury which he or they, or his or their tenants may sustain by reason of the working of the said mines, or the exercise of any of the liber- ties and privileges hereby excepted and reserved, the amount of such com- pensation, and all other matters in difference which may arise between the parties in connection with the said excepted mines, minerals, liberties and privileges to be ascertained by arbitration [may state mode of appointing arbitrators, as in a Lease]. Deeds Creating or Conveying Particular Estates Other Than An Absolute Fee. 740. Deed Conveying a Life Estate, With Remainder Over. This indentuke, made this day of , in the year one thousand eight hundred and , , between A. B., of , in the county of , and State of , merchant [and 0. B. his wife], of the first part, and W. X. and Y. Z., of , in the said county, gentlemen, of the second part, Witnesseth: That the said party of the first part, in consideration of dollars to him [or, them] paid by the said parties of the second part, the receipt whereof is hereby acknowledged, has [or, have] granted, bar- gained, sold, aliened, remised, released, conveyed and confirmed, and by these presents does [or, do] grant, bargain, sell, alien, remise, release, con- vey and confirm unto the said parties of the second part, all [here insert description of the premises]. To have and to hold all and singular the above-granted premises, together with the appurtenances and every part thereof, unto the said W. X. and his assigns, for and during the natural life of said W. X., and upon his death then unto the said Y. Z., his heirs and assigns, forever. Together with [etc., as in other forms]. 741. Deed By a Tenant for Life. This indenture, made this day of , in the year one thousand eight hundred and , between A. B., of , in the county of , and State of , merchant, of the first part, and Y. Z., of , in the said county, farmer, of the second part, Witnesseth : That the said party of the first part, in consideration of dollars to him paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, remised, released, conveyed and confirmed, and by these presents does grant, bargain, sell, alien, remise, release, con- vey and confirm, i nto the said party of the second part, and to his executors. administrators' [or his heirs] and assigns, forever, all the estate, right, title DEEDS. 383 Estate for Life ; Assignment of Dower. and interest of the party of the first part — to wit, an estate for and during his natural life in all [here insert description - day of ,18 .) [Signature of] Justice of the Peace. 400 ABBOTTS' FOBMS. Conviction of Vagrants, eto. 768. Record of Conviction of Vagrant, With Commitment to Poorhouse. OOTJNTT OF , 88. Be it remembered, that T. Z. was this day brought before me, the under- signed, a justice of the peace for the town of , in said county, at my office in said town, upon the charge [of A. B., made under oath], that he was in the said town, an idle person, not having visible means to maintain himself, and living without employment [or otherwise, as the case may have teen], and a vagrant within the intent and meaning of the statute in such case made and provided ; and I being satisfied, after due and personal ex- amination of said Y. Z., and upon his confession [or, upon competent testimony] now before me given, that said charge is true, the said Y. Z. is therefore duly convicted before me of being a vagrant [or otherwise], within the true intent and meaning of-the statute;* and it appearing to me that he is not a notorious offender, and is a proper object for relief, I adjudge and determine that he be committed to the county poorhouse of said county [or, the almshouse — or, poorhouse — of the said town] for the term oi [specify time not exceeding six months], there to be kept at hard labor. Given under my hand and seal, this day of , 18 . [Signature, title and seal of jwitice.] 769. The Same; With Commitment to County Jail. [As in preceding form to the *, concluding thus :] And it appearing to me that said Y. Z. is an improper person to be sent to the poorhouse, I do therefore adjudge and determine that he be committed to the bridewell or house of correction of said [Or if there be none, say, to the common jail of said county], for the term of [specify a time not exceeding sixty] days [and to be kept for the first days of said term on bread and water only]. Given [etc., as in preceding form]. 770. Recognizance of a Disorderly Person. County of , ss. We, Y. Z., E. F. and G. H., of , in said county, acknowledge our- selves indebted to the People of the State of ; that is to say, the said Y. Z. in the sum of dollars, and the said E. F. and G. H , each in'the sum of dollars, to be respectively made and levied of our several goods and chattels, lands and tenements, to the use of the said People, if default shall be made in the condition following: The condition of the above recognizance is such, that whereas the said Y. Z., has this day been convicted before , a justice of the peace for said , of being n disorderly person ; now if the said Y. Z shall be and continue of good behavior towards the People of the State of , for DISORDERLY PERSONS, VAGRANTS, ETC. 401 Conviction. Commitment. the space of one year from and after this day, then this recognizance to be void ; otherwise, of full force. Taken, approved, subscribed \ [Signatures and seals.] and acknowledged before me, > this day of , 18 . ) [Signature of] Justice of the Peace. 771. Record of Conviction of Disorderly Person. [Recite charge, examination and conviction — see Form 768 — and conclude :] And inasmuch as the said T. Z., now before me, has made default in finding sureties for his good behavior, as by me required — that is to say, two sufficient sureties, to be recognized with said Y. Z., each in the sum of dollars, and the said Y. Z. in the suit, of dollars : I do therefore, in pursuance of the statute in such case made and provided, make this my record of the conviction of the said Y. Z., of the offence aforesaid. Given [etc., as in Form 768]. 772. Commitment of Vagrant to Poorhouse. To any constable of the county of , greeting : Whereas, Y. Z. [was charged before me, upon the oath of A. B., with being a vagrant, and], upon an examination before me, was this day duly convicted of being a vagrant,(J) and * it appearing to me that he is not a notorious offender and is a proper subject of relief, I did adjudge that he be committed as hereinafter directed : Now, therefore, you are commanded, in the name of the People of the State of , to convey the said Y. Z. to the county poorhouse of said county [or, almshouse, or, poorhouse, of said town], the keeper whereof is required to keep the said Y. Z. therein at hard labor for the term of days. Given [etc., as in Form 768]. 773. The Same ; To County Jail. ■ [As in the preceding form to the *, continuing thus:] it appearing to me that he is an improper person to be sent to the poorhouse, I did adjudge that he be committed as hereinafter directed. Now, therefore, you are commanded, in the name of the People of the State of , to convey the said Y. Z. to the common jail of said county, the keeper whereof is required to detain the said Y. Z. in safe custody therein for the term of days [and to keep him for the first days of said term on bread and water only]. Given [etc., as in Form 768]. (6) It is the better opinion, that the which it is characterized by the statute, commitment need not set forth the par- Case of the Twelve Commitments, 19 ticulars of the offence; it is enough to Abbotts' Pr., 894; Gray's Case, 11 lb., describe it in the general designation with 56 ; S. C, i Park. Or., 616. 26 402 ABBOTTS' FORMS. Dower. 774. Commitment of Disorderly Person in Default of Sureties. . To any constable of the county of , greeting : "Whereas, Y. Z. [was charged before me, upon the oath of A. B., with being a disorderly person, and], upon an examination before me, was this day duly convicted of being a disorderly person, (c) and upon such convic- tion the said Y. Z. was by me required to find two sufficient sureties to be recognized with said Y. Z., the sureties each in the sum of dollars, and the said Y. Z. in the sum of dollars, for his good behavior for the space of one year from the time of his conviction as aforesaid ; and inas- much as said Y. Z. has made default in finding such sureties : Now, titebefobe, you are commanded, in the name of the People of the State of , forthwith to convey the said Y. Z. to the common jail of said county, the keeper whereof is required to detain him in custody in said jail for the term of , or until he shall find such sureties,(i) or shall be thence discharged according to law. Given [etc., as in Form 768]. CHAPTEE XXXI. DOWER. in this chapter are presented the necessary forms for proceeding to compel an admeasurement of dower. If the heirs or other owners of the fee can agree with the widow upon her allotment, they may convey it to her by a deed, for which see the chapter of Deeds. If they do not take this course, either party may apply to the court for an admeasurement. This proceeding does not, however, determine the question of her right to dower ; but only what is a fair third of the lands in which she claims it.(as) PAGE 775. Petition by widow, for the admeasurement of dower 403 776. Verification of foregoing petition 403 777. Notice by heirs requiring widow to demand dower 403 778. Petition by heir or owner for the admeasurement of dower 403 779. Notice of application for dower, to be served with copy petition 404 780. Petition for appointment of guardian 404 781. Order appointing guardian 404 782. Order for admeasurement of dower 405 783. Oath of commissioners 405 784. Report of commissioners 405 (c) See preceding note. (a) Under the New York Code of Pro- (d) As to the requisite of the commit- cedure, the admeasurement may be had ment in this respect, Bee the Case of the in a civil action. Townsend «. Townsend, Twelve Commitments, 1.9 AbbotW Pr., 2 Sand/., 711. S94. DOWER. 403 Proceedings for Admeasurement. 775. Petition by Widow, for the Admeasurement of Dower. To the Court of [or, to the surrogate of the county of ] : The petition of , of the town of , in the county of , respectfully shows : * I. That she is the widow of 0. B., late of said town, deceased, who died on the day of , 18 . It. That the said C. B., at the time of his death, and previous thereto, was seized in fee [or describe other inheritance] of and in certain lands and tenements bounded and described as follows [here insert description]. III. That the said B. lelt him surviving 0. B., jr., D. B. and G. B., his children and heirs at law, of whom the first named is of full age, and the others are minors of the age of fourteen years and upwards [state also whether the minors hare any guardian, and if they have, who he is], all of which said heirs at law are the owners of the said lands, subject to the dower-right of your petitioner. Whekefoke, your petitioner prays that the dower of your petitioner in the said lands may be admeasured pursuant to the statute. [Date.] [Signature.] 776. Verification of Foregoing Petition. County OF A. B. being sworn, says that she has read the foregoing petition by her subscribed, and knows the contents thereof, and that the same is true, ex- cept as to the matters therein stated on information and belief, and as to those matters she believes it to be true. Swobn before me, this day ) [Signature.] of , 18 . J [Signature and title of officer.] 777. Notice by Heirs Requiring Widow to Demand Dower. To A. B., widow of 0. B., late of the town of , deceased : Take notice, that you are required, within ninety days after the service of this notice, to make demand of your dower in the lands below described, which were owned by the said 0. 13. previous to and at the time of his death. The said lands are as follows : [here insert description.] [Date.] [Signature.] 778. Petition by Heir or Owner for the Admeasurement of Dower. [As in Form 775 to the *, continuing thus :] I. That your petitioner is one of the heirs at law of 0. B., deceased, late of , who died on the day of ,18 , leaving your petitioner and his only heirs, and A. B. his widow surviving him. II That during his lifetime and the coverture of said A. B , C B. was 404 ABBOTTS' FORMS. Dower. seized in fee [or designate other estate of inheritance'] in lands situated in County, which are hounded and described as follows [description], in which said A. B. claims dower. III. That all the said heirs are of full age [or state who are minors, and whether they have a guardian, naming him], IV. That the said A. B. has not demanded her dower therein, although one year after her husband's death has elapsed [or, although on the day of , 18 , your petitioner gave to said A. B. notice in writing, pur- suant to the statute, requiring her to demand her dower in said lands]. Wheuefoke, your petitioner prays for the admeasurement of her dower, pursuant to the statute. [Signature and verification, as above.] 779. Notice of Application for Dower, To Be Served With Copy Petition.(l>) To [naming owners], and to all other persons claiming an interest in the lands set forth in the within petition [or, if the application be by the owners, say : To A. B., widow of 0. B., deceased] : Take notice, that a petition, of which a copy is annexed, will be presented to the Supreme [or, County] Court [or, to the surrogate] in County, at the next term thereof, to beheld at , on the day of [Date.] [Signature.] 780. Petition for Appointment of Guardian. To the Snpreme Court [or, County Court "of County ; or, to the surro- gate of County] : The petition of G. B. respectfully shows, that he is an infant of the age of years ; that A. B., widow of C. B., has served on your petitioner her notice of application for the admeasurement of her dower in the lands of which the said C. B. died seized; that your petitioner has no general or special guardian ; and he therefore prays that some suitable person may be appointed the special guardian of your petitioner, to take charge of his in- terest in the premises. [Signature and verification, as above.] ' 781. Order Appointing Guardian. At a special term of the Supreme Court of the State of New York [or, at a term of the County Court of County, or, in the Surrogate's Court of the County of ], held at the City Hall in the city of [Date, and name and title of judge]. In the Matter of the Application of 0. B. for Admeasurement of Dower. (4) The notice must be in writing. Matter of Coo'-ar, 15 Johns., 532. DOWER. 405 Admeasurement. On reading and filing petition of G. B., dated the day of , * and on motion of , for said petitioner : Oedeebd, that , a freeholder of said county, be, and he hereby is, appointed guardian of the said G. B. for the sole purpose of appearing for and taking care of the interest of said infant in the proceedings. [Signature of judge or clerk] 782. Order for Admeasurement of Dower. [As in preceding form to the*, continuing thus:] with proof of service of a copy of the same on all parties interested in the premises described therein [or, on the widow therein named], together with proof of service of notice of this motion ; on motion of , for the said [petitioner], and after hearing [or, no one appearing] for : Okdekeu, that admeasurement be made of the dower of the said A. B., in the lands of her husband, the said C. B., deceased, described in said petition, as follows: [here insert description] ; and it is further ordered, that Q. B., S. T. and U. V., of the town of , in the county of , three reputable and disinterested freeholders, be and they are hereby appointed commis- sioners for the purpose of making such admeasurement, and that they report their proceedings herein to this court [on the day of , 18 ].(«) [Signature of judge or clerk.] 783. Oath of Commissioners. County of , ss. "We [naming them], commissioners appointed by the Court, to make admeasurement of the dower of A. B., in the premises described in the order of said court, by which we are appointed, being duly severally sworn say, each for himself, that he will faithfully, honestly and. impartially dis- charge the duty and execute the trust reposed in him by such appointment. Swokn [etc., as in Form 776]. [Signatures.] 784. Report of Commissioners. To the Court : The undersigned [naming them], commissioners appointed by an order of this court, dated the day of , 18 , f o make admeasurement of the dower of A. B., widow of 0. B., late of said county, deceased, in the lands described in said order, respectfully report, that we have been attended by the said [naming the parties who appeared] ; we have caused a survey cf ', he said lands and premises to be made in the presence of the said parties, a map of which survey is hereto annexed ; that we proceeded to admeasure and lay off the one-third part of the lands designated !n said order, as the dower of A. B., named therein, designating such part with posts [or, with stones; or, with permanent monuments]; and in doing so, we took into view the permanent improvements made on (c) Where the order appointing the confirm their report is necessary. The admp«i»urers specifies the time when they order is in the nature ofan adjournment, ehall report, no other notice of motion to White 1>. Story, 2 Bill, S43. 406 ABBOTTS' FORMS. Entries and Manifests. Estrays. the said lands by any heir, guardian of minors or other owners since the death of [or, since the alienation thereof by] 0. B., the deceased, the husband of the said A. B., and we found it practicable [or, not practicable] to award such improvements within that part of the said lands not allotted to the said A. B. [If reported not practicable, add : and, therefore, we made from the lands allotted to the said A. B. a deduction proportionate to the benefit she will derive from such part of the said improvements as is in- cluded in the portion assigned to her.] We further report, that we em- ployed , a sworn and skilful surveyor, with necessary assistants, to aid us in making the said admeasurement; and we further report, that the land admeasured and allotted to the widow is as follows : [here insert de- scription, stating monuments thereof. State also the items of the commis- sioners' charges."] Given under our hands and seals, at , on the day of , 18 . [Signatures and seals.] CHAPTEE XXXII. ENTRIES AND MANIFESTS. These instruments are, in form, large schedules, exhibiting the packages, marks, contents, quantity, values, ate , etc., of merchandise, etc., to be imported or exported. As they cannot be conveniently exhibited on these pages, and are rarely, if ever, needed, except at ports of entry, where printed blanks can be obtained, we do not give them here. CHAPTEE XXXni. ESTRAYS. The statutes of the States generally provide for simple proceedings foi dw posing of straying domestic animals, if unreclaimed after notice. ^The fo'low ing forms are agreeable to the laws of New York, and will prove convenient guides elsewhere. TAG! 785. N :>tice to be delivered to town clerk 407 786. Notice of sals 4OT 787. Certificate of fence-viewer .... 407 788. Notice of sale of animals straying on the highway 407 ESTEATS. 407 Notice of Sale. 785. Notice to be Delivered to Town Cleric. Tc whom it may ooncern : Take notice, that on the day of , IB [here describe the animal, giving the age, color and marks, natural and artificial, as near as may be], strayed upon my inclosed lands in this town,* and the owner is required to appear and claim them. [Signature, designating [Date.] [also abode.] 786. Notice of Sale of Estray. [As in preceding form to the *, continuing thus:] and the same not hav- ing heen redeemed by the owner thereof: Now, pursuant to the statute, 1 shall expose the same for sale by public auction, to the highest bidder, on the day of , at o'clock in the noon, at , in said town of . [Signature.] [Date.] 787. Certificate of Fence- Viewer. The tjhdeksigned M. S"., fence-viewer of the town of , hereby certifies, after due inquiry, that A. B. is entitled to receive from the owner of the [designate strays] which came upon his inclosed lands in said town, on the day of , 18 , the sum of dollars as his reason- able charges for keeping the same from the day of ,18 , to the day of , 18 ; and that my fees in this matter amount to dollars. [Signature of] Fence- Viewer. [Date.] 788. Notice of Sale of Animals Straying on the Highway. To whom it may concern : Take notice, that on the day of ,18 [here describe the animal], was seized and taken by A. B., being found by him running at large in the public highway, opposite to land owned [or, occupied] by him in the town of , and county of , and State of , con- trary to the provisions of the "Act to prevent animals running at large in the public highways," passed April 23, 1862; and due notice of such seizure having been given by him to the subscriber, a justice of the peace [or, a commissioner of highways] of said town, and in accordance with said act, notice is hereby given, that said animal will be sold by public auction, to the highest bidder, at , in said town, on the day of , 18 , at o'clock in the noon. [Date.] [Signature and title.]. 4:08 ABBOTTS' FORMS. Excise. CHAPTEE XXX1Y. EXCISE. The forms here given are those which are in use under the Excise Laws of New York. The forms necessary in obtaining licenses under the provisions of the Internal Revenue Laws of the United States, may be had on application to the Assessors of Internal Revenue. PAGtt 7S9. Storekeeper's application for a license 408 790. Certificate to character 408 791. Storekeeper's bond 408 792. Justification of sureties ." 409 793. Acknowledgment 409 794. Storekeeper's license 409 795. Innkeeper's petition 410 796. Proof of signatures 410 797. Innkeeper's bond 410 7 98. Innkeeper's license 411 789. Storekeeper's Applicaton for a License. To the Board of Commissioners of Excise, of the [city and] county of The undersigned, being a resident of the [city and] county of , and a storekeeper doing business at No. in street, in said city, applies for a license to sell strong and spirituous liquors and wines, in quantities less than five gallons, hut not to be drank in the house or shop, or in any outhouse, yard or garden appertaining thereto, or connected therewith, in the said house above named. [Signature.} [Date.] 790. Certificate to Character. I am acquainted with the above-named applicant, and believe him to be a person of good moral character. [Signature.'] 791. Storekeeper's Bond. Know, all men by these presents, that we [naming applicant and sureties, with their additions], are held and firmly bound unto the People of the State of New York, each in the sum of five hundred dollars, for the uses, intents and purposes declared and appointed by the 12th Section of an Act of the Legislature of the State of New York, entitled " An Act to suppress intemperance, and to regulate the sale of intoxicating liquors," passed the 16th day of April, 1857, for which payment well and truly to be made, we do bind ourselves, iointly and severally, firmly by these presents. Sealed EXCISE. 409 Bonds. Licenses. with our seals, and dated the day of , one thousand eight hundred and The condition of the above obligation is such, that if the said [naming applicant] will not, during the term for which his license shall be granted, sell or suffer to be sold, any strong or spirituous liquors or wines, to be drank in his shop or house, or in any outhouse, yard or garden appertain- ing thereto, and that he will not suffer any such liquor, sold by virtue of such license, to be drank in his shop or house, or in any outhouse, yard or garden belonging thereto, then the above obligation to be void ; otherwise, to remain in full force and virtue. Sealed and delivered ) [Signatures and seals.] in the presence of, S [Signature of witness.] 792. Justification of Sureties. State of New York, ) r SS City and County of New York. ) M. N., one of the subscribers to the foregoing bond, being sworn, says, that he is a resident and householder [or, freeholder] within this State, and is worth the sum specified by him in the foregoing bond, over all his debts and liabilities, and exclusive of property exempt by law from execution. Sworn before me, this) [Signature.] day of , 18 . f [Signature of officer.] 793. Acknowledgment. State of New York, | City and County of New York, f I certify, that on this day of , 18 , before me personally appeared the above-named [naming obligors] known to me to be the individ- uals described in, and who executed the foregoing bond, and severally acknowledged that they executed the same for the uses and purposes therein mentioned. [Signature of officer^] 794. Storekeeper's License. Excise License, 186. The Commissioners of Excise, for the [city and] county of , whose names are hereunto subscribed, having examined the application of A. B., of No. in street, iu said , and it satisfactorily appearing, by the said application, that lie is of good moral character, do hereby grant to him a license to sell strong and spirituous liquors and wines, in quantities less than five gallons, but not to be drank in his shop, house, outhouse, yard or garden, on the premises above mentioned, according to the act of the Legislature of the State of New York, passed ltith April, 1857, entitled an "Act to suppress intemperance, and to regulate the sale of intoxicating 410 ABBOTTS' FORMS. Innkeepers' Licenses. liquors," from the date hereof until this license shall expire by operation of law, or be revoked for a violation of the provisions of the aforesaid act. |gF° The application for a new license must be made immediately after the third Tuesday of May next. In testimony wheeeof, we have subscribed our names, on this day of , 18 . [Signatures.] (Storekeeper's license ; Bond, No. .) 795. Innkeepers Petition. To the Board of Commissioners of Excise in the [city and county] of The undersigned petitioners, each for himself, declares that he is a free holder of the State of New York, and a resident of the electicn district in the city of , wherein [here name applicant], of No. street, the applicant, proposes to keep an inn, tavern or hotel; and that the said applicant is of good moral character; that he has sufficient ability to keep an inn, tavern or hotel, and the necessary accommodations to entertain travellers, and that an inn, tavern or hotel is required for the actual accom- modation of travellers at the plape where the said applicant resides or pro- poses to keep the same. And these petitioners declare, each for himself, that he'has not signed a petition for any other applicant for a license under this law. Your petitioners, therefore, pray that a license be granted to the said applicant to sell strong and spirituous liquors and wines, to be drank in his house, and on the premises of the said applicant, under the act of the Legis- lature of the State of New York, passed April 16, 1857, entitled, "An Act to suppress intemperance, and to regulate the sale of intoxicating liquors." [Date.] [Signatures of petitioners.'] Signed in presence of [Signature of witness.] 796. Proof of Signatures. CotTNTY OE , SS. M. N. being duly sworn, says that he resides at No. in street, in ; that he is the subscribing witness to the above petition, and that the same was duly signed by the above petitioners. Swobn [etc., as in Form 792]. [Signature of witness.] 797. Innkeeper's Bond. Know all men by these presents, that we [naming applicant and sure- ties, with their additions], are held and firmly bound unto the People of the State of New York, each in the sum of two hundred and fifty dollars, for the uses, intents and purposes declared and appointed by the 7th section of an act of the Legislature of the State of New York, entitled, "An Act to suppress intemperance, and to regulate the sale of intoxicating liquors," passed the 16th fay of April, 1857, for which payment, well and truly to be EXCISE. 411 Innkeepers' Licenses. made, we do bind ourselves, jointly and severally, firmly by these pres- ents. Sealed with our seals, and dated the day of , one thousand eight hundred and The condition of the above obligation is such, that if the said [naming applicant] will not, during the time that he shall keep an inn, taveni or hotel, at No. in street, in the city of , suffer the said inn, tavern or hotel to be disorderly, or suffer any gambling, or keep a gambling-table of any description within the inn, tavern or hotel so kept by him, or in any outhouse, yard or garden belonging thereto, then tbe above obligation to be void ; otherwise, to remain in full force and virtue. Sealed and delivered in ) [Signatures and seals.] the presence of j [Signature of witness.] [Justification and acknowledgment, as in Forms 792 and 793.] 798. Innkeeper's License. EXCISE LICENSE, 186. The Oommissionees of Excise for the [city and] county of , whose names are hereunto subscribed, having examined the petition of A. B., of No. in street, in said , and it satisfactorily appear- ing by the said petition that he is of good moral character ; that he has sufficient ability to keep an inn, tavern or hotel, and the necessary accom- modations to entertain travellers, and that an inn, tavern or hotel is re- quired for the actual accommodation of travellers at the place where he proposes to keep the same, do hereby grant a license to sell strong and spirituous liquors and wines, to be drank in his house and on his premises above mentioned, according to the act of the Legislature of the State of New York, passed 16th April, 1857, entitled, "An Act to suppress intem- perance, and to regulate the sale of intoxicating liquors," from the date hereof until this license shall expire by operation of law, or be revoked for a violation of the provisions of the aforesaid act. |pW* The application for a new license must be made immediately after the third Tuesday of May next. In testimony whebeof, we have subscribed our names, on this day of , 18 . [Signatures.] (Innkeeper's license, Bond, No. .) 412 ABBOTTS' FOEMS. Extradition of Crimiuals. CHAPTEE XXXV. 4 EXTRADITION. The Constitution of the United States provides that a person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having juris diction of the crime.(a) The mode of proceeding to effect this surrender is regulated by the law of the State in which it is sought to arrest the offender and have him delivered up. In respect to fugitives from foreign countries, the law of nations requires that persons charged with felony or other high crimes, and escaping into for- eign and friendly j urisdictions, should be delivered up upon sufficient evidence of their guilt (6) This right is in some cases declared and extended by treaty stipulations — e. g., the treaties of the United States with Great Britain and with France, re- spectively. But in either case the proceeding is a judicial one, to be effectuated through the tribunals of justice, and is not to be earned out by the executive authority upon the mere provision of the treaty, unless power be given to that depart- ment by law.(c) The act of 1848 was passed to providejfor the due execution of the extradi tion treaties with Great Britain and France.(d) By its provisions, the judges of the Supreme Court and those of the District Courts of the United States, and judges of the several State courts, and also commissioners appointed for the purpose by any of the courts of the United States, are severally vested with power and j urisdiction to act, on complaint made under oath, charging a person with having committed any of the crimes enumerated within the foreign j urisdiction ; and to issue a warrant for the ap- prehension of the person charged, so that he may be brought before such judge or commissioner, to the end tiiat the evidence of criminality may be heard and considered ; and if it be deemed sufficient to sustain the charge under the pro- visions of the treaty, then it is made the duty of the judge or commissioner to certify the fact of sufficiency, together with a copy of all the testimony taken before him, to the secretary of state, so that a warrant may issue by the execu- tive, on the requisition of the foreign government, through its proper author- ities, for the surrender of the fugitives. And the person charged is to be com- mitted to jail, and there remain under the warrant of the judge or commis- sioner until the surrender shall be made.(e) PAGE 799. Affidavit to arrest fugitive from another State " 413 800. Warrant by the governor, for surrender 413 801. Commitment by United States commissioner, under extradition treaty 414 B02. Warrant by secretary of state, tor extradition 414 (a) Const., art. 4, see. 2, parag. 2. Matter of Metzger, 5 N. T. L&. Obi., (A) Matter of Washburn, 4 Johns. Ch., 83. 106; Matter of Clark, 9 Wend., 212. (d) 9 Stat, at L., 302. (c) Matter of Metzger, 1 Barb., 248 ; («) See in re Kaine, 14 Sow. S. Ct., 108 EXTRADITION. 413 Governor's Warrant. 799. Affidavit to Arrest Fugitive from Another State. County of , ss. A. B., of , being duly sworn, says: I. That T. Z. is a fugitive from justice from the State of , where he stands charged on oath with felony, committed in that State)/)— viz. [here set forth the crime, and if there is any doubt about its being a felony or other crime at common law, add: which said acts are by the law of the said State of a felony ; or, a crime]. II. That said charge was made on or about the day of by [here state how made], before the [here designate court or magistrate; and if con- venient annex a copy of the charge, and say here : a copy of which is hereto annexed]. III. That the said Y. Z. lias fled from the said State last aforesaid, and has taken refuge in this State of , from the laws and justice of the State of And deponent peats that the said T. Z. may be arrested and held in custody by the proper authorities of this State of until the proper authorities of the said State of shall have sufficient time to require, in manner and form as the law directs, the body of paid Y. Z. from the ex- ecutive and authorities of the State of , and until the said executive of said last above-named State shall make his warrant for the surrender of the body of said Y. Z., to the end that he may be taken to the State of and dealt with as law and justice shall require. Sworn before me, this day) [Signature of deponent.] of , 18 . f [Signature and title of officer.] 800. Warrant by the Governor, for Surrender. A. B., qovbbnoe of the State of , to the sheriff of the city and county of , and the sheriffs, constables and other peace-officers of the several counties in the said State : Whehkas it has been represented to me by the governor of the State of that Y. Z., late of , in the said State, has been guilty of frauds [here designate the crime — e. g., thus :] in abstracting from the Bank, in that State, money, notes and bank-bills, while president of said bank, in a fraudulent manner, which said acts are made criminal by the laws of that State ; and that he has fled from justice in that State, and has taken refuge in the State of ;"and that said governor of has, in pursuance oi the laws and constitution of the United States, demanded of me that I should cause the said Y. Z. to be arrested and delivered into the custody of , sheriff of the county of , in said State, who is duly author- ized to receive him into his custody, and to convey him back to the said (/) The affidavit should allege that the felony wa9 committed in the State referred to, Matter of Heyward, 1 Hamaf., 701. 414 ABBOTTS' FORMS. Extradition of Foreign Criminals. State of ; and whereas the said representation and demand is accom- panied by an affidavit taken before a justice of the peace of the said State of , whereby the said Y. Z. is charged with the said crime, which affi- davit is certified by the said governor of to be duly authenticated : You are therefore eequieed to arrest the said Y. Z. wherever he may be found within the State, and to deliver him into the custody of the said , to be taken back to the said State from which he fled, pursuant to the said requisition. Given under my hand and the privy seal of the State, at the city [Seal.] of , this day of , in the year one thousand eight hundred and . [Signature of governor.] 801. Commitment by United States Commissioner, Under Extradition Treaty. United States of America, District of , ss. In the Matter of This oase having been heard before me, on requisition, through A B., esquire, consul for at the port of , that the said Y. Z. be com- mitted for the purpose of being delivered up, as a fugitive from justice, pur- suant to the provisions of the treaty made between the United States and Great Britain, August 9, 1842, I find and adjudge that the evidence pro- duced against the said Y. Z. is sufficient in law to justify his commitment on the charge of , had the crime been committed within the United States. Wiiehefore, I order that the said Y. Z. be committed pursuant to the provisions of the said treaty, to abide the order of the President of the United States in the premises. Given under my hand and seal, at , this day of , 18 . [Signature, title and seal.] 802. Warrant by Secretary of State, for Extradition. Department of State, Washington, ,18 .To all to whom these presents shall come, greeting : Wherkas [here insert name and title of applicant] has made requisition, in conformity with the 10th article of the treaty between the United States and Great Britain, for the mutual surrender of fugitive criminals, concluded at Washington, the 9th day of August, 1842, for the delivery up to justice of Y. Z., charged with the orime of [designate it], committed in And whereas the said Y. has been found in the State of , within the jurisdiction of the United States, and has, by proper affidavit, and in due form, been brought before M. N., a commissioner duly appointed by the United States Circuit Court for the district of , in the circuit, for examination of said charge of . And whereas the said commis- sioner has deemed the evidence sufficient to authorize the commitment of said Y. Z., and has accordingly committed him, all of which appears by a copy of the proceedings transmitted to this department : Now these pres- ents are to require of the United States marshal for the district of , or of any other public officer or person having charge or custody of said Y. Z., to surrender and deliver hiin up to , consul for at the FENCES AND FENCE- VIE WEES. 415 Decision as to Division Fence. port of , or to any other person or persons duly authorized to receive said fugitive, and conduct him to for trial. In testimony whereof, I have hereunto signed my name, and [Seal.] caused the seal of this department to be affixed, at Washing- ton, this day of , 18 , and of the independence of the United States the . [Signature.] CHAPTER XXXVI. FENCES AND FENCE-VIEWERS. The statutes of several of the States give a summary mpde of determining controversies arising out of the necessity for division fences or walls between the adjoining lands of different owners. Certain local officers — in the State of New York for instance, the assessors and commissioners of highways in each town, who are designated, when acting in this function, as " fence-viewers" — are empowered to decide as to the sharing of the expenses of fences, and damages from neglect to repair them. For the details of the powers of these officers the statutes of the State must be consulted. The same officers are also, in some cases, authorized to determine questions of damage done by cattle,, etc. 808. Decision offence-viewers as to value of fence, and portion to bo maintained by an owner who has previously let his lands lie open 415 804. Decision as to proportion of division fence to be maintained 416 805. Appraisement of damage where one owner has neglected to keep his fence in repair 416 806. Notice of wish to remove portion of division fence 416 807. Permit by fence-viewers 416 808. Appraisement of damage by cattle 417 809. Certificate that sheep were killed by dogs , 417 803. Decision of Fence- Viewers as to Value of Fence, and Portion to oe Maintained oy an, Owner who Previously has Let his Lands Lie Open. Whereas, A B. and T. Z. are the owners of certain adjoining lands in the town of , and the said A. B., on or about the day of , 18 , erected a division fence between the land belonging to him and that of the said T. Z., who allowed his own lands to lie open ; and whereas the said "X. Z. has recently inclosed the land belonging to him, and a disagree- ment has arisen between them as to the just proportion of the value of the said division fence to be pail for by the said Y. Z. ; We, having made due inquiry into the facts and circumstances, and examined the premises, find that the following is a correct description of the fence built by the said A. B., as aforesaid [here describe the fence] ; that the value of the fence, at the time of erecting the same, was dollars ; and that the just pi" -por- tion of said" value to be paid by the said Y. Z. to the Raid A. B., is .416 ABBOTTS' FORMS. Decision of Fence-Viewers. dollars [or, that the proportion of the division fence which should he built by said Y. Z. is as follows [describing it] ; and we certify that the fees for our services amount to dollars. Given under our hands, at , this day of , 18 . [Signatures and titles.'] 804. Decision as to Proportion of Division Fence to be Maintained. Whereas, A. B. and Y. Z. are the owners of certain adjoining lands in the town of , and a disagreement has arisen between them as- to the just proportions of a division fence to be built or maintained by them respect- ively ; We, having examined the facts and viewed the premises, decide that said division fence should be built as follows [here describe the fence] ; that one part of said fence is the proper proportion thereof to be built by the said A. B. ; and that the remaining part is the proper proportion thereof to be built by the said Y. Z. ; and we certify that the fees for our services amount to dollars. Given [etc., as in the preceding form]. 805. Appraisement of Damage where One Owner has Neglected to Keep his Fence in Repair. Whereas application has been made to the undersigned by A. B., the owner of land adjoining the land of Y. Z., in the town of , to ascertain and appraise his damages arising in consequence of the refusal [or, neglect] of the said Y. Z. to keep in repair [or, to build] his proportion of a division fence between the aforesaid lands, we have examined the facts and viewed the premises, and after due notice to said Y. Z., we do decide and determine that the said A. B. has sustained damage to his land, crops, fruit-trees and shrubbery, in consequence of the refusal [or, neglect] of the said Y. Z. to maintain [or, make] his proportion of such division fence, as aforesaid, which said damages we have ascertained, and appraise at dollars ; and we certify that the fees for our services amount to dollars. Given [etc., as in Form 803]. 806. Notice of wish to Remove Proportion of Division Fence and Let Land He Open. Please take notice, that I shall apply to and , two of the fence-viewers of the town of , on the day of instant, for permission to remove the division fence between the land occupied by you in said town and that owned and occupied by me, lying adjacent thereto. [Date.] [Signature.] [Address.] 807. Permit by Fence- Viewers. We, the undersigned, two of the fence-viewers of the town of , hereby certify, that upon the application of A. B., made in accordance with FERRIES. 417 Fence-Viewers Appraisal a notice, of which the above is a copy, duly served upon Y. Z., therein mentioned, more than ten days before this day, we have examined the premises where the division fence named in said notice is situate, and do determine that the same may, with propriety, be removed. Given [etc., as in Form 80S], 808. Appraisement of Damage by Cattle. We, the undersigned, two of the fence-viewers of the town of , hereby certify, that upon the application of A. B., we have examined into the damages done by [give the number and description of cattle as near as may be], distrained by him doing damage on his lands, and having viewed the premises and ascertained the damages, do hereby certify the amount of such damages to be dollars ; and that the fees for our services are dollars. And a disagreement having arisen between the said A. B. and T. Z., the owner of the adjoining land, touching the sufficiency of the fence along [designate it], we having examined the same, and heard the allegations and proofs of the parties, certify that we consider the said fence sufficient [or, insufficient]. Given [etc., as in Form 803]. 809. Certificate that Sheep were Killed by Dogs. We, the undersigned, two of the fence-viewers of the town of hereby certify, that upon the application of A. B., the owner of sheep [or, lambs], alleged to be killed by dogs, we proceeded to inquire into the mat- ter, and to' view the sheep [or, lambs] killed, and examined witnesses in relation thereto ; and that we find that sheep [or, lambs], belonging to the said A. B., were killed by dogs, and in no other manner; and we also certify, that the amount of damages sustained by the said A. B., in consequence of the killing of said sheep [or, lambs], as aforesaid, is dollars ; and that the value of said sheep [or, lambs] is dollars ; and that the fees for our services are dollars. Given [etc., as in Form 803], CHAPTEE XXXVII. FERRIES. In the State of New York the establishment of ferries is, with some local exceptions, regulated by the County Courts. Applications for iicenses are to be made as in the following forms. If the applicant for the license is not the owner of the land, he must give the owner notice (Form 811), at least eight days before the session of the court, of his intention to apply. 27 418 ABBOTTS' FORMS. Licensing Ferries FAGI S10. Application for a ferry 1 jense 418 811. Notice to owner of lands, of application 418 812. Affidavit of service 418 818. Recognizance 419 814. License for a ferry 419 810. Application for a Ferry License. To the County Court of county. The petition of A. B. respectfully shows: I. That he is a resident of the town of , in said county, and that a ferry ought to be established, for the accommodation and convenience of the public, across the River, at the place where the public highway crosses the land of the petitioner [or, of 0. D.] upon the bank of said river. [If the application be made by some person other than the owner of the land, add :] II. That the said 0. D., the owner of the land through which the highway runs, as aforesaid, has neglected to apply for such license, although due service of the notice required by law has been made upon him, as appears by a copy of said notice and the affidavit of service, which are hereunto annexed. III. Wheeefoee, the undersigned hereby applies to the court to grant him a license to establish such ferry, on his compliance with the provisions of the statute in such case made and provided. [Date.} [Signature.] 811. Notice to Owner of Lands of Application for a Ferry License. Sib — Please take notice, that the undersigned will apply to the County Court of the county at the next term thereof, to be held at the court- house in the city of , on the day of , 18 , for a license to keep a ferry across the , from the to the termination of the high- way running through your land [giving a particular description of the location]. [Signature.] [Date.] [Address.] 812. Affidavit of Service. County of , ss. M. N., of , being duly sworn, says, that on the day of , instant [or, last], he personally served on 0. D. within named a notice, of which the above [or, annexed] is a copy, by delivering the same to him personally, and leaving the same with him. [Signature of deponent.] Swoen to before me, this day of , 18 . [Signature and title of officer.] FERRIES. 419 Ko3ogniz;iiiee. Liconse. 813 Recognizance on Applying for Ferry License. State of , ) r SS County of . J Be it bemembered, that I, A. B., of the town of , in said county, do acknowledge myself hereby indebted to the People of the State of New York in the just and full sum of one hundred dollars, to be well and truly paid to the said People, if default shall be made in the condition following : Wheeeas, I, the said A. B., have this day applied to the County Court of said county for a license to keep a ferry upon the River, in the town of , in said county : Now the condition of this recognizance is such, that if I, the said A. B.. shall faithfully attend and keep the said ferry, pro- vided a license be granted for that purpose as aforesaid, with such and so many sufficient and safe boats, and a sufficient number of men to work the same, together with sufficient implements for said ferry, as shall be deemed necessary during the several hours in each day, and at such rates as this court shall direct, then this recognizance to be void ; otherwise, to remain in full force. [Signature 0/ applicant.] Subscribed and acknowledged ) in open court, this day > of , 18 , before me. ) [Signature of] Clerk. 814. License for a Ferry. (a) At a County Court held in the courthouse in the city of , in and for the county of , the day of ,18 . Present [naming him], county judge. "Whebeas, A. B., of the town of , in said county, has appplied therefore [upon due notice] license is hereby granted to tue said A. B. to keep a ferry across the river , at , in the town of , [here describe the place particularly], for the term of years from this date. And the said A. B. is allowed to collect and receive ferriage for the trans- portation of travellers, property and effects, over and across the said ferry, at and after the following rates, but he shall not take or demand any greater sum or sums for such transp Drtation — viz. [state the rates]. [Signature of] Clerk. (a) This is to be entered on the minutes by the clerk, is to be delivered to the of the court. A certified copy, attested licensee. 420 ABBOTTS' FORMS. Foreclosure by Advertisement, CHAPTER XXXVIII. FORECLOSURE. mortgages of real property are commonly foreclosed by a suit brought for the purpose, in which all persons having an interest subject to the mortgage are made parties. But if a mortgage contains a power of sale, which is usually the case, the holder may foreclose the mortgage by selling the property under the powor of sale, by auction, on due notice to all parties interested. This is a common and convenient mode in simple cases where the parties are few in number. The mode in which this may be done, and the necessary method of preserving evidence of the sale, so as to assure the purchaser's title, are pre- scribed by statute. It is not allowable to proceed in both methods of fore- closure at the same time. In general, it may be said that any holder of the mortgage, whether he be the original mortgagee, or an absolute assignee, or an executor or administra- tor, or an officer of a corporation," or other trustee holding the mortgage, may proceed to enforce the power of sale by advertising and selling, pursuant to the statute. Notice of foreclosure. — In order to foreclose a mortgage by advertisement,(a) the mortgage, if not already recorded, should be put on record in the county where the lands lie ; » notice that it will be foreclosed by a sale of the mort- gaged premises, or some part of them, must be prepared, specifying the names of the mortgagor and mortgagee, and the assignee of the mortgage, if any ; the date of the mortgage aud where recorded, or where the power of sale is regis- tered ; the amount claimed to be due thereon, at the time of the first publica- tion of such notice ; and a description of the mortgaged premises, contorming substantially with that contained in the mortgage. This notice must be given as follows : 1. By publishing it for twelve weeks successively, at least once in each week, in a newspaper printed in the county where the premises intended to be sold are situated ; or if such premises are situated in two or more counties, in a newspaper. printed in either of them. If the notice is published once in each week, ior twelve successive weeks, the first publication being made eighty-five days before the sale, and the last, eight days before it, it is sufficient.^) If the printers of the papers in the county refuse to publish the notice at the legal rates, it may be published in the State paper, in which case a copy of the notice must be served, at least six weeks before the time of such sale, on the person in possession of the mortgaged premises, in all cases where the same are occupied ; and when they are not occupied, and the mortgagor, his heirs or personal representatives, reside in the county where such premises lie, then upon such mortgagor, his heirs or personal representatives, as the case may be. 2. Posting. — A copy of the notice must be affixed at least twelve weeks prior to the time therein specified for the sale, on the outward door of the building where the County Courts are directed to be held, in the county where the premises are situated ; or if there be two or more such buildings, then on the outward door of that which shall be nearest the premises. In the computation (a) These directions are according to ch. 846 ; lb., 1857, vol. i, 667, ch. 308 ; 2 the law of New York. 2 Rev. Stat., 545 ; Jiev. Stat., 649, § 50. laws of 1842, 863, ch. 277 ; lb., 1844, 529, (4) Howard v. Hatch 29 Barb., 297. FORECLOSURE. , 421 General Rules. of tlie time of posting, the first day and the day of sale cannot both be included, but only one of them.(c) 8. Recording. — A copy of the notice must be delivered at least twelve weeks, prior to the time therein specified for the sale, to the clerk of the county in which the mortgaged premises are situated, who is to affix the same in a book kept for the purpose. 4. Heroiet. — A copy of the notice must be served at least fourteen days prior to the time therein specified for the sale, upon the mortgagor or his personal representatives (that is, his executors and administrators),^) and upon the subsequent grantees and mortgagees of the premises, whose conveyance and mortgage shall be upon record at the time of the first publication of the notice, and upon all persons having a lien by or under a judgment or decree upon the mortgaged premises, subsequent to such mortgage, personally, or by leaving the same at their dwelling-house, in charge of some person of suitable age, or by serving a copy of such notice upon said persons, at least twenty-eight days prior to tlie time therein specified for the sale, by depositing the same in the post-office, at some place within tlie State,(e) properly folded and directed to the said persons at their respective places of residence. If the notice is sent unsealed, the direction should be upon the paper on which the notice is written. If sent in an envelope, it should be sealed.(/) A mistake in mailing notice, addressed to a party at another place than the resi- dence of such party, renders the foreclosure utterly void as to such party and his grantees.(g') Ad these four modes of notice must be pursued to make a valid sale under the statute.(/t.) Tlie sale may he postponed from time to time, by inserting a notice of such postponement, as soon as practicable, in the newspaper in which the original advertisement was published, and continuing such publication until the time to whicn the sale shall be postponed. If the original advertising and posting was not commenced in time to give the legal notice, the sale may be postponed, and the no. ice continued to make up the denciency(i) of time. Except in case of a postponement for this purpose, the notice of postponement may be by pub- lication alone without posting.( j) Where a postponement is made at the time and place appointed for the sale, by stating to those present the time and place to which the adjournment is made, the subsequent notice, to be inserted and continued in the newspaper until the time of sale, must conform to the adjournment, as thus announced.(fe) Mode of sale. — The person foreclosing the mortgage may act as auctioneer. The sale must be at public auction, in the daytime, in the county where the mortgaged premises, or some part of them, are situated ; except in sales ci property mortgaged to the People of this State, in which case the sale may be made at the Capitol. If the premises consist of distinct farms, tracts or lots, they must be sold separately ; and no more farms, tracts or lots should be sold than necessary to satisfy the amount due on such mortgage, at the time of the first publication of notice of sale, with interest, and the cost and expenses (e) Bunee v. Reed, 16 Barb., 347. may be conducted in the other mode pre- (d) Service upon heirs or devisees is scribed by the statute. Anderson v. Aus- not necessary. Anderson v. Austin, 84 tin, 34 Barb., 819. lb., 819. (») Cole v. Moffitt, 20 Barb., 18. (e) Bunce v. Reed, 16 lb., 347. (j) Westgate v. Handlin, 7 Mow. Pr., (/) Eathbone v. Clarke, 9 Abbotts' Pr., 372. 66, note. (k) Where the announcement, made at (g) Robinson v. Ryan, 25 N. T., 820. ' the time and place fixed for the sale by (A) Van Slyke v. Shelden, 9 Barb., 278 ; the first advertisement, was of an adjourn- Cole v. Moffitt, 20 lb., 18. When there ment to the 10th of the month, but tho are no personal representatives, the pro- printed notice was, by mistake, for tho vision of the statute concerning notice to 16th, — Held, that a sale had on the 16Us them is inoj erative, and the foreclosure was void. Miller t>. Hull, 4 Ben., 104. 4:22 , ABBOTTS' FORMS. Foreclosure by Advertisement. allowed by law. The rule, that if the premises consist of distinct farms, tracts or lots, they must be sold separately, applies only where the premises con- sisted, at the time of the mortgage, of distinct farms, tracts or lots, and not where they were, and were mortgaged as, one farm, tract or lot, and were sub- sequently subdivided by the mortgagor, for more convenient occupation or for sale.(/) The mortgagee, his assigns, and his or their legal representatives, may fairly and in good faith purchase the premises so advertised, or any part thereof, at such sale. Mffect of sale. — A regular foreclosure by advertisement, and the sale made in pursuance thereof to a purchaser, in good faith, is equivalent to a sale under a decree in a court of equity, so far only as to be an entire bar of all claim or equity of redemption of the mortgagor, his heirs and representatives, and of all persons claiming under him or them, by virtue of a title subsequent to the mortgage, and also of any person having a lien, by any judgment or decree, on the premises, or any part thereof, subsequent to such mortgage, and of any person having any lien or claim by or under such judgment or decree, who has been duly served with a copy of the notice of sale. An affidavit of the fact of any sale pursuant to such notice, may be made by the person who officiated as auctioneer at such sale, stating the time and place at which the same took place, the sum bid and the name of the purchaser, and shall be annexed to a printed copy of the notice of sale. An affidavit of the publication of such notice of sale and of any notice of postponement may ba made by the printer or publisher(m) of the newspaper in which the same was inserted, or by his foreman or principal clerk ; and an affidavit of the affixing of a copy of such notice on the outward door of the courthouse, may be made by the person who affixed the same, or by any other person who saw such notice so posted during the time required ; and an affidavit of the affixing a copy of such notice in the book kept by the clerk, may be made by the county clerk, or by any other person who saw such notice so affixed, during the time required ; and an affidavit of the serving a copy of such notice on the persons entitled to service thereof, may be made by the persons who served the same. These affidavits may be taken and certified by any judge of a court of record, or any commissioner of deeds, notary public or j ustice of the peace, and may be filed in the office of the clerk of the county where such sale took place. The affidavits are to be recorded at length by the clerk, in the book kept for the rec- ord of mortgages ; and the original affidavits, the record thereof, and certified copies of such record are presumptive evidence of the facts therein contained. Great care should be taken in drawing the affidavits, where these are relied on as effecting the conveyance ; because it is held that, if defective, they can- not be sustained or amended by parol evidence.(n) When these affidavits are. filed and recorded, they are a substitute for a deed. But until such affidavits be made, filed and recorded, or a deed is given in pur- suance of the sale, no title passes to the purchaser. PASS 815. Notice of sale under power in mortgage 423 816. Another form ; the whole mortgage being due on dotoult in interest 423 817. Notice by assignee, etc 424 818. Affidavit of publication 425 819. Affidavit of affixing notice in county clerk's book , 425 820. Affidavit of posting notice 425 821. Affidavit of service of notice 426 822. Affidavit by auctioneer to the fact of sale 426 {I) Lamersonn. Marvin, 8 Barb., 9. (») Arnot v. McClure, i Den., 41 ; Lay- (m) The publisher is deemed the man v. Whiting, 20 Barb., 559 ; Cohoes printer within the statute. Bunce v. Company v. Goss, 13 lb., 137 ; Bryan v. Seed, 16 Bcub., 347. Butts, 27 lb., 503. FORECLOSURE. 423 Notice of Sale. 815. Notice of Sale Under Power in Mortgage.(o) Whereas, Y. Z., of , on the day of , 18 , made and ex- ecuted a mortgage to A. B , of , to secure dollars, payable [here state the terms], which, mortgage was recorded in the office of the clork oi County on the day of , 18 , at o'clock and minutes in the noon, in liber of mortgages, page ,(p) * and the sum of dollars interest [or, the sum of principal and dollars interest, making together the sum of dollars] is due on said mortgage on the day of ,18 , the day of the first publication of this notice ;(o) and whereas default has be6n made in the payment of the money secured by said mortgage, and no suit or proceeding having been instituted at law to recover the debt now claimed to be due upon said mortgage or any part thereof: the said mortgage will be foreclosed by a sale of said premises by virtue of the power contained in the mortgage,(r) which sale will be made by the subscriber, at public auction, at the Hotel,(s) in , on the day of next, at o'clock in the noon. The following is a description of said mortgaged premises [here insert de- scription.]^) [Signature of mortgagee [Date on the day of first or attorney.] publication.'] 816. Another Form; The Whole Mortgage Being Due Upon Default vn Interest Clause. [As in the preceding form to the *, continuing thvs:] and whereas it was in and by said mortgage expressly agreed, that should any default be made in the payment of the said interest or of any part thereof on any day where- on the same was payable as expressed in said mortgage, and should the same remain nnpaid and in arrear for the space of thirty days, then and from thenceforth — that is to say, after the lapse of the said thirty days — the principal sum of dollars mentioned in said mortgage, with all ar- (o) This form is sustained by Judd v. ally with the statute. Judd v. O'Brien, O'Brien, 21 N. T., 186. 21 N. 71, 186; Jeneks •«. Alexander, 11 (p) The reference to the record of the Paige, 619. mortgage should be accurate, though er- (r) The notice should show that the rors which would not mislead are disre- purpose of the sale is to foreclose the garded ; and it seems that stating the time mortgage, or what is equivalent, that the and place, without naming the book and sale is had by virtue of a power contained page, would be sufficient. Judd v. in the mortgage. Judd •«. O'Brien. 21 O'Brien, 21 XT. 7., 186. N. Y., 186. (j) The amount due up to the day of (») See note («), infra. first publication of the notice should be (t) The property should be distinctly stated accurately ; though if the data for designated. Eathbone v. Clarke, 9 Ab- a precise computation are given, it might botta' Pr., 66, note. The better practice is be regarded as sufficient, if there was no to insert the description given in the bad faith in the omission to comply liter- mortgage. 424 ABBOTTS' FORMS. Notice of Sale under Mortgage. rearage of interest thereon, should, at the option of the said A. B., his ad- ministrators or assigns, become and be due and payable immediately there- after, although the period limited in said mortgage for the payment thereof might not then have expired, any thing thereinbefore contained to the con- trary thereof in any wise notwithstanding. And whereas said Y. 'L. neglects and refuses to pay the interest which became due on the day of , 18 , or any part thereof [except that the sum of dollars, paid on account thereof]. And whereas more than thirty days have elapsed since said interest be- came due and payable, pursuant to the provisions of the said mortgage, and the undersigned has elected and hereby elects that the whole principal sum shall become and be due and payable immediately ; and whereas there is due on said mortgage, at the date of the first publication of this notice, the principal sum of dollars, together with dollars interest thereon, from the day of , 18 , making altogether the sum of dol- lars, and no suit or other proceeding has been instituted at law to recover the debt secured by said mortgage, or any part thereof [except one which has been heretofore discontinued]. Now, pursuant to the statute in such case made, and by virtue of the power and authority vested in the undersigned by said mortgage, I, A. B., the [assignee of the] mortgagee named in said mortgage, do hereby notify all persons whom it may concern, that I shall sell the said premises described in said mortgage, at public auction, at the vestibule of the Oity Hall, (it) in the city of , on the day of , 18 , at o'clock in the noon, to the highest bidder at said sale. The following is a particular description of said premises [here insert de- scription], [Signature of mortgagee [Bate on the first day of or attorney^ publication.'] . 817. Notice By Assignee, etc. [As in preceding forms, inserting at the * a clause like the following :] Which said mortgage, with the power of sale therein contained, was on the day of , 18 , duly transferred and assigned to the subscriber, who is now the holder and owner thereof,(s) said assignment being recorded in the office of the clerk of the county of , on the day of , 18 , at , o'clock in the noon; in liber of mortgages on page («) The place of sale must be truly de- established place for such sales. So of a signated. Burnet v. Denniston, 5 Johns, notice of a sale at the Merchants' Ex- Gh., 35. change. But under either notice the sale A notice which states that the sale will should take place at the usual part of the take place at the City Hall, but does not Hall or Exchange. Hornby 11. Cramer, state in what part of the City Hall, is good, 12 How. Pr., 490. if by usage a well-known part of the (») See Howard v. Hatch, 29 Barb., building, such as the rotunda is the 297. POEEOLOSUBE. 425 Affidavits to Proceedings. 818. Affidavit of Publication of the Notice of Sale.(w) State of , ) County of . J M. JT., of , being duly sworn, says, that he is the [Here attach a printer [or, the foreman of the printer ; or, the principal printed copy of clerk of the printer; or, the only (a) clerk of the printer] the notice.] of the , a newspaper published in , in the county of , aforesaid; and that the annexed notice of mortgage sale has been published in the said newspaper twelve weeks successively, at least once in each week, the said publication commen- cing on the day of , 18 , and ending on the day of , 18 . Swokn before me, this day I [Signature of deponent.] of , 18 . 1 [Signature of officer.] 819. Affidavit of Affixing Notice of Sale in the Proper Booh in the County ClerVs Office. State of , ) County of . ) M. N., of , being sworn, says, that on [Here attach a the day of , 18 , and at least twelve weeks printed copy of prior to the time specified in the annexed printed the notice.] notice for the sale of the mortgaged premises therein described, he delivered a copy of such notice of sale to the county clerk of the county of , who did immediately and on the same day, and in the presence of this deponent, affix the same in the proper book kept by said county clerk for the affixing thereon of notices of sale of the foreclosure of mortgaged premises. Swokn [etc., as in preceding form], [Signature.] 820. Affidavit of Affixing Notice of Sale on the Outward Boor of the Courthouse. State of County of :}■ M. N., of , being duly sworn, says, that on [Here attach a the day of , 18 , and at least twelve weeks printed copy of prior to the time specified therein for the sale, he thenoticeofsale.] affixed a notice, of which the annexed printed notice is a copy, on the outward door of the building where the County Courts are directed to be held in the county of , aforesaid — to wit, the City Hall in Sworn [etc., as in Form 818]. [Signature?] ( !w) This form is sustained by Howard v. that he is the only clerk, is sufficient, Hatch, 29 Barb., 297: though not saying " principal clerk." (x) An affidavit by a clerk, which shows Gray v. Palmer, 9 Oal., 616. 426 ABBOTTS' FORMS. Affidavits to Foreclosure Sale. 821. Affidavit of Service of Copy of Notice of Sale. State of , ) County of . J M. IS., of , being duly sworn, says, that on [Sere attach a the day of ,18 , at [here specifying the printed copy of place particularly], he personally served [here name the the notice.] persons], with a notice of sale of which the annexed printed notice is a copy, by delivering a copy of said notice to each of them individually, and leaving the same with them [or, he served Y. Z. with a notice of sale, of which the annexed printed notice is a copy, by delivering a true copy of said notice to the wife [or, daughter, aged years, or thereabouts], of the said Y. Z., at his dwelling-house in , he being at the time absent therefrom ; or, he served Y. Z., with a notice of sale, of which the annexed printed notice is a copy, by deposit- ing a copy of said notice in the post-office in , properly folded — and if inserted in an envelope . add, and inclosed in a sealed envelope — and directed to him at his place of residence in ]. Swobu [etc., as in Form 818]. [Signature^ ' 822. Affidavit By the Auctioneer to the Fact of Sale. State of , ) County of .) ' M. ST., of , being duly sworn, says, that he sold [Here attach a the premises [below described being a part of the printed copy of premises] described in the annexed printed notice, by the notice.] public auction, at the time and place of sale therein mentioned — to wit, on the day of , 18 , at o'clock in the noon, at the [here designate the place] ; and that C. D. then and there purchased the same, for the price of dollars; he being the highest bidder, and that being the highest sum bidden for the same. And this deponent further saith, that said sale was made in the daytime, and, in all respects, honestly, fairly and legally conducted, according to his best knowledge and belief; and, also, that the said 0. D. purchased the said premises fairly and in good faith, as he verily believes. Sworn [etc., as in Form 818]. [Signature.] [Add description, if the sale was of a part of the land described in the notice.] GIFTS. 427 Guaranties.. CHAPTEE XXXIX. GIFTS. -4 gift of personal property may be made by parol, without any written in- strument, except in respect to such property as requires a writing in order to make a valid sale or transfer for pecuniary consideration. But the appropriate instrument for conveying by gift is an Assignment or Bill of Sale (see those chapters), in which affection or a nominal payment, such as one dollar, may be named as the consideration. Delivery. — Where the subject-matter is capable of delivery, a delivery, actual or symbolical, is essential to constitute a valid gift by parol. There is no dis- tinction, in this respect, between a gift between the living and one made in view of death. The possession, or some means of obtaining possession and control, must be transferred to the donee, or the title does not pass. The de- livery need not be to the donee in person. A delivery to a third person to hold for the donee is sufficient. The making and delivering one's own promissory note as a gift, does not create a valid obligation, even when the note is given as a gift in view of death. But the holder of a note or other obligation made by a third person may give it away. After a gift has been thus executed, it cannot be retracted by the donor ; although in cases of actual or constructive fraud, his creditors may set it aside. A gift in view of death, however, is rev- ocable at the arbitrary will of the donor, if he survives ; and this, notwith- standing the donee has been put in full possession of the subject of the gift. A gift of land is to be made by deed acknowledged and recorded, as in other cases. (See the chapters on Deeds and Acknowledgments.) A nominal consideration may be named, or affection may be expressed to be the considera- tion, as in Form 720. Sometimes the conveyance is made in the form of a covenant to stand seized to uses, as in Form 636. CHAPTEE XL. -GUARANTIES. By the Statute of Frauds, every special promise to answer for the debt, de- fault or miscarriage of another person, is void, unless such agreement, or some note or memorandum thereof, expressing the consideration, be in writing, and subscribed by the party to be charged therewith.(a) The words " for value received, "(b) or even a seal,(c) are a sufficient expression of a consideration to satisfy the statutory requirement. (a) By a recent amendment in New Douglass v. Howland, 24 lb., 35; Cooper York, the necessity of expressing the eon- v. Dedriok, 22 Barb., 516; Miller ». Cook, sideration has been abolished. Laws 'if 23 N. Y., 495 ; Hpward v. Holbrook, 23 1863, 802, ch. 464. In some other States How. Pr., 64. r t never has been required. (c) Livingston v. Tremper, 4 Johns., , (b) Watson «. McLaren, 19 Wend., 557 ; 416 ; Douglass v. Hpwland 24 Wend., 35 ; 428 ABBOTTS' FORMS. .Guaran'des. 824. 825. 827. PASS Guaranty of payment of note 428 Of payment of bond 428 Guaranty of collectibility 423 Guaranty of rent 429 Guaranty given to stop legal proceedings 429 Guaranty of performance of contract 429 823. Guaranty of Payment of Note. For value received, I hereby guarantee the payment of the within note.(. Smith, 415. (d) An absolute guaranty of payment of a .negotiable note renders the guarantor liable on default of the principal, and without proof of demand and notice. Allen v. Rightmere, 20 Johns., 365 ; Mann v. Eekford, 15 Wend., 502; Van Kenssel- laer v. Miller, Bill & 1). Supp., 287. He is liable unless he can show that the omis- sion of demand and notice has been the cause of injury to him. Clark 1>. Burdett, 2 Ball, 197. (e) Where the guaranty of a mortgage was of " the payment and collection of the principal and interest money of the bond and mortgage within assigned,"— Held, that collection meant collection by fore- closure, and that the guarantor was not liableas a party to an action of foreclosure. Baxter v. Smack, 17 Bow. Br., 183. (/) Upon a guaranty of the collection " of the within note," the guarantor is not liable, unless the guara v .ee has used due diligence, not only against the makers bet also as against such as were indorsers at the time of making the guaranty. Love- land v. Shepard, 2 Bill, 139; Moakleyfl. Kiggs, 19 Johns., 69. (g) A guaranty that a note is good, is not a guaranty of payment on demand, but that the maker is solvent, and the amount can be collected by due course of law. Cooke v. Nathan, 16 Barb., 342. (A) A guaranty of the collectibility of a note is a conditional promise, binding only m case of diligence in prosecuting the debt. Gallagher v. White, 31 Barb.) 92. And if the condition be not performed by the guarantee, the guarantor is under no moral obligation to pay the note, and his liability cannot be revived, even by an express promise. Van Derveer v. Wright, 6 lb., 547. And in order to charge the guarantor, it must be proven that the parties to it were not good , and that payment could not be enforced from them. Curtis «. Smallman, 14 Wend., 281. Under a simple guaranty of collection, the creditor is not bound to notify the guarantor of his attempt and failure to collect the debt, before suing on the guar- anty. Unless the guarantor stipulates tor GUARDIAN AND WARD. 429 Guaranties. Guardianship. 826. Guaranty of Bent, etc. In consideration of the letting of the premises above described© [or, for value received], I guarantee the punctual payment of the rent [and per- formance of the covenants] in the above agreement mentioned to be paid and performed by said lessee, without requiring any notice of non-payment or non-performance, or proof of notice or demand being made, whereby to charge me therefor. [Signature.] [Date.] 827. Guaranty Given To Stop Legal Proceedings. A. B. & Co. having, at my request, agreed to discontinue the proceedings instituted. by them against T. Z., to enforce payment of dollars due by him to them, I hereby, in consideration thereof, guarantee the payment of that sum, and of costs, within days from date. [Date.] [Signatured] 828. Guaranty of Performance of Contract. In consideration of the sum of one dollar to me in hand paid by Messrs. A. B. <& Company, the receipt whereof is hereby acknowledged, I do here- by guarantee, promise and agree to and with them, that the above-named M. N. will well and faithfully perform and fulfil every thing by the forego- ing agreement on his part and behalf to be performed and fulfilled, at the times and in the manner above provided. And I do hereby expressly waive and dispense with any demand upon the said M. N., and any notice of any non-performance on his part. [Signature.] [Date.] CHATTEE XLI. GUARDIAN AND WARD. In general, the father is guardian by nature, until the child arrive at tne age of twenty-one ; but by common law this is a guardianship of the person only and gives no right or control over the child's property, real or personal. But notiae, it is not to be implied. Sterns v. depends upon the circumstances of the Marks, 85 Barb., 565. case. Thomas v. "Woods, 4 Cow., 173 ; If the condition of a guaranty is, that and see Mains v. Haight, 14 Barb., 76. the creditor shall proceed by "due course (i) A guaranty, written beneath a lease, of law" for the collection of the debt, it is and stating that it is made " in considcra- enough that he prosecutes all ordinary tion of the demise of the premises above legal measures, with good faith and rea- mentioned," sufficiently expresses a con- sonable diligence, in point of time; the sideration. McKensie ii. Farrell, 4 i?on«., loss of a term does not of necessity dis- 192. charge the guarantor. What is laches 4:30 ABBOTTS' FORMS. Petition for Appointment of Guardian. by statute in New York and some other States, where an infant has real prop- erty, the father, or if he has no father, the mother, or if none, the nearest relative of full age and of capacity, males being preferred, is guardian, and has the custody of the land, and is entitled to the profits, for the benefit of the heirs. But his authority is superseded whenever a guardian is appointed by deed or will, or by the surrogate. The forms for voluntary appointment of guardians are given in the chapter of Appointments. PAGH 829. Petition for appointment of guardian of a minor of the age of fourteen 430 S80. Consent to be annexed 480 831. Affidavit as to property to be annexed 480 882. Bond of guardian 481 833. Afiidavit to sufficiency of surety 431 884. Letters of guardianship 481 835. Petition for appointment of guardian of a minor under the age of fourteen.. 432 83S. Verification of petition 483 837. Consent to be annexed 438 .838. Petition by guardian for allowance out of ward's estate 433 829. Petition for Appointment of a Guardian of a Minor of the Age of Fourteen Years. To M. N., surrogate of the county of : The petition of A. B., of the city of , respectfully shows, that your petitioner is a resident of the county of , and is a minor over fourteen years of age, and was years of age on the day of last past. That your petitioner is entitled to certain property and estate [briefly designating it], and that to protect and preserve the legal rights of your petitioner, it is necessary that some proper person should be duly appointed the guardian of his person and estate during his minority. Whekefoee, your petitioner nominates, subjeot to the approbation of the surrogate, 0. B., of the city of , merchant, to be such guardian, and prays his appointment accordingly, pursuant to the statute in such case made and provided. [Date.} [Signature.] 830. Consent to Be Annexed. I, O. B., of the city of , merchant, hereby consent to be appointed the guardian of the person and estate of the above-named minor during his minority. [Date.] [Signature.] 831. Affidavit as to Property to Be Annexed. County of , ss. M. IS., of the city of , being duly sworn, says, that he is acquainted with the property and estate of the above-named minor, and that the same consists of real and personal estate ; and that the personal estate of said minor does not exceed the sum of dollars, or thereabouts ; and thai GUARDIAN AND WARD. 431 Bond. Letters. the annual rents and profits of the real estate of said minor do not exceed the sum of dollars, or thereabouts. [Signature.] Sworn before me, this ) day of , 18 . J [Signature of officer.] 832. Bond of Guardian. Know all men by these presents, that we, C. B., of the city of , merchant, and E. F., of the same city, physician, are held and firmly bound unto A. B., of the city of , a minor over fourteen years of age, in the sum of dollars, lawful money of the United States, to be paid to the said minor, his executors, administrators or assigns; to which pay- ment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals ; dated the day of , one thousand eight hundred and The condition of this obligation is such, that if the above-bounden 0. B. shall and will faithfully, in all things, discharge the duty of a guardian to the said minor, according to law, and render a true and just account of all moneys and property received by him, and of the application thereof, and of his guardianship in all respects, to any court having cognizance thereof, when thereunto required, then this obligation to be void ; otherwise, to re- main in full force and virtue. Sealed and delivered in j [Signatures and seal.] the presence of J [Signature of witnesses.] 833. Affidavit of Sufficiency of Surety in Bond. County op , ss. E. F., the within-named surety, being duly sworn, says, that he resides at No. street, in said city, and is worth the sum of dollars over and above all his just debts, liabilities and responsibilities, and prop- erty exempt by law from execution. Swokn [etc., as in Form 831]. [Signature.] 834. Letters of Guardianship. The People of the State of , to C. B., of the city of , send greeting : Whereas an application, in due form of law, has been made to our sur- rogate of the county of , to have you, the said 0. B., appointed the guardian of the person and estates of A. 11, a minor, residing in the city of , of the age of fourteen years: And whereas the said 0. B. has agreed and consented to become such guardian, and has duly executed and delivered a bond, pursuant to law, for the faithful discharge of his duty as such guardian, and we being satisfied of the sufficiency of said bond, and 432 ABBOTTS' FOEMS. Petition for Guardian. that said 0. B. is a good and reputable person, and is in every respect com- petent to have the custody of the person and estate of said minor : Now, therefore, we do, by these presents, allow, constitute and appoint you, the said 0. B., the general guardian of the person and estate of said minor during his minority, hereby requiring you, the said guardian, to safely keep the real and personal estate of said minor, which shall hereafter come to your custody, and not suffer any waste, sale or destruction of the same, but keep up and sustain his lands, tenements and hereditaments, by and with the rents, issues and profits thereof, or with such other moneys belonging to him as shall come to your possession, and to deliver the same to him when he becomes of full age, or to such other guardian as may be hereafter appointed, in as good order and condition as yon receive the same ; and also to render a just and true account of all moneys and property se- cured by you, and the application thereof, and of your guardianship in all respects, to any court having cognizance thereof, when thereunto required. In testimony whereof, we have caused the seal of office of our said surrogate to be hereunto affixed, at the city of , [Seal.] the day of , in the year of our Lord one thousand eight hundred and , and of our independence the [Signature of] Surrogate. 835. Petition for the Appointment of a Guardian of a Minor Under the Age of Fourteen.{a) To M. IT., surrogate of the county of The petition of 0. B., of the city of , merchant, respectfully shows . . I. That your petitioner is a paternal uncle of A. B., a minor; that said minor is a resident of the county of , and is under fourteen years of age, and was years of age on the day of last past. II. That the only relatives of said minor residing in the county of , are E. F., his maternal grandfather, G. H. and I. J., his maternal uncles, and D. F. and your petitioner, his paternal uncles. III. That said minor is entitled to personal property [briefly designating it] to the value of about dollars, as your petitioner is informed and verily believes, and that he is also seized of certain real estate [briefly des- ignating it], the annual rents and profits whereof do not exceed the sum of dollars; and that to protect and preserve the legal rights of said minor, it is necessary that some proper person should be duly appointed the guardian of his person and estate. Therefohe, your petitioner prays, that you will appoint him. your peti- tioner, the guardian of the person and estate of said minor, until he shall arrive at the age of fourteen years, and until another guardian shall be ap- pointed. [Date.] [Signature.] (a) An application on behalf of a minor 8 How. Pr., 99. And in this class of under fourteen (2 Rev. Stat., 150, § 5), like cases, notice should generally be given to that made by* a minor over fourteen, the relatives of the minor, should be by petition. Dutton v. Dutton, GUARDIAN AND WARD. 433 Petition for Allowance. 836. Verification of Petition. County of , ss. 0. B., of the city of , the above petitioner, being duly sworn, says, that the foregoing petition is true, to his knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true. [Signature.'] Swoen [etc., as in Form 831]. 837. Consent to be Annexed. I, 0. B., of the city of , merchant, do hereby consent to become the guardian of the above-mentioned minor, pursuant to the prayer of the foregoing petition. [Bate.] [Signature.] 838. Petition by Guardian for Allowance Out of Ward's Estate. To the justices of the Supreme Court of The petition of 0. B., guardian of A. B., an infant, respectfully shows : I. That your petitioner was appointed general guardian of said minor, by an order of this court, made the day of , in the year 18 , and has given the security required by the said order. II. That the property of the said minor consists of {describe it, stating the value]. III. That the said minor is the child of your petitioner, is years of age, and has been supported, educated and maintained 'by your petitioner, out of his own funds, up to the time of the date of the aforesaid order, and subsequently, up to or about the day of , 18 . IV. That your petitioner, since the date last aforesaid, has been unable, and is now unable, to support, maintain and properly educate the said minor, out of his own funds, in consequence of failure in business, and losses in business. V. That your petitioner has, for the last years, resided at , in , and the said daughter has resided in ; that the expense of the support, maintenance and education of the said mL or, since the day of , 18 , has been about the sum of dollars per annum, which your petitioner is wholly unable to defray out of his own funds. Wjierefobb;, your petitioner prays that an allowance may be made to him for the maintenance and education of the said minor, out of the interest accrued and to accrue upon the, said , at the rate of dollars per annum, to date from the day of , in the year 18 , and to be continued until the further order of this court. [Signature.'] [Add Verification, as in Form, 836.] 28 434 ABBOTTS' FORMS. Habitual Drunkards. CHAPTEE XLII. HABITUAL DRUNKARDS. The statutes generally provide proceedings by which the sale of liquors to habitual drunkards may be forbidden and punished, and also proceedings by which habitual drunkards, who are incapacitated from taking care of them- selves and their property, may be placed under the charge of a guardian termed a committee. The latter proceeding, which is akin to that taken in case of in- sane persons, is treated in the chapter of Insane Persons. The excise laws of New York(a) provide that the wife, husband, parent or guardian of an habitual drunkard, may, upon complaint, procure from a justice of the peace, notice to dealers not to furnish liquor. It is provided by another statute,! 6) that the overseers of the poor may des- ignate a person as an habitual drunkard, and give similar notice upon their own motion. Copies of the notice should be personally served on all persona required to obey it. The person designated as a drunkard may contest the fact before a jury. For that purpose he must apply to a justice of the peace for process to summon the jury; immediate notice of which, and of the time and place of the hearing, is to be given to the overseer by the justice. The jury are to be summoned, returned, etc., and witnesses subpoenaed, etc., in the same manner as in ordinary suits before justices of the peace. The verdict o. c the jury is to be entered by the justice in his docket. If the jury find that the person is an habitual drunkard, judgment must be entered against him, and an execution issued for the costs ; if the jury find the contrary, judgment must be rendered accordingly ; but no execution can be issued against the overseer, unless he acted in bad faith, and did not have reasonable cause for making the designation. PAGK 839. Complaint and petition of wife, etc., for notice forbidding sale of liquor.... 484 840. Notice to dealer forbidding sale 485 841. Designation of habitual drunkard, and notice to dealer by overseers of the • poor 435 842. Notice to overseer, by justice 435 843. Execution against drunkard 435 844. Execution against overseers 436 845. Eevocation by overseers 485 839. Complaint and Petition of Wife, etc., for Notice Forbidding Sale of Liquor. County op , ss. 0. B., of , being duly sworn, says, that A. B., of said , is her husband [or, his wife ; or, child under the age of twenty-one years], and that he [or, she] is an habitual drinker of intoxicating liquors [here state tome particulars substantiating the complaint], and that K. L. and M. N., of , are accustomed to furnish such liquors ' to him [or, her] : (a) 2 laws of 1857, 418. (J) 1 Rev. Stat., 686. HABITUAL DRUNKARDS. 435 Proceedings to Prevent Sale of Liquors. Whkkefoee, deponent asks that notices may be issued to said K. L. and M. N., according to the statute, forbidding the sale or giving of such liquors to him [or, her]. Swobn [etc., as in Form ]. [Signature.] 840. Notice to Dealer, Forbidding Sale, etc. To [here name dealer complained of] : You are hereby forbidden to sell or give intoxicating liquors to 0. B., for the term of six months from the date of this notice, under the penalty of fifty dollars and costs for each offence; complaint having been duly made tome, with satisfactory proof pursuant to the statute, that he [or, she] is an habitual drinker of such liquors. [Signature of officer.] [Date.] 841. Designation of Habitual Drunkard, and Notice to Dealer,by Overseen of Poor. Town of , ) County of . V I, the undersigned, overseer of the poor of said town, having discovered A. B., of said town, to be an habitual drunkard, do hereby designate him as such halitual drunkard, and describe him as follows [description] :< And every merchant, distiller, shopkeeper, tavernkeeper, or other dealer in spirituous liquors, and every other person residing within , is required not to give or sell, under any pretence,- any spirituous liquors to the said A. B. ' [Date.] [Signature and title.] 842. Notice to Overseer by Justice. To , overseer of the poor of the town of : You are hereby notified, that A. B., who has been designated by you ae an habitual drunkard, has applied to me for a process to summon a jury to try and determine the fact of such drunkenness; and that I have fixed the day of instant, at o'clock in the noon, at my office in said town, as the time and place for such trial. [Date.] [Signature of] Justice of the Peace. 843. Execution Against the Drunkard. County of ,.ss. To any constable of said county, greeting : Whereas, A. B., of , in said couDty, was designated and described by 0. D. and E. F., overseers of the poor of said town, as an habitual drunkard; and, by the verdict of a jury duly empanelled, drawn and sworn, before me, the undersigned justice, upon the application of the said A. B., * it is found that he is an habitual drunkard; whereupon, I have rendered judgment against the ;ivd A. B., for the costs of the said over- 436 ABBOTTS' FORMS. Habitual Drunkards. seers in attending the trial, amounting to the sum of dollars: Yocr are therefore hereby commanded, in the name of the People of the State of New York, to levy the said costs t of the goods and chattels of the said A. B. [excepting such goods and chattels as are exempt by law from execution], and bring the money which you shall collect, sixty days from the date hereof, before me, at my office in , to render to said over- seers. [If the drunkard is a male person, add here: And if no snch goods and chattels, or not sufficient to satisfy this execution, can be found, you are further required to take the body of the said A. B , and convey him to the common jail of said county, there to remain until this execution shall be satisfied and paid.] "Witness my hand, this day of , 18 . [Signature of] Justice of the Peace. 844. Execution, Against the Overseers. County of , ss. [As in preceding form to the *, and then add:] it is found that he is not an habitual drunkard ; and, inasmuch as it appeared to me that the said overseers of the poor did not act in good faith, and had not reasonable cause to believe the said A. B. to be an habitual drunkard, I have entered judgment agiiinst the said C. D. and E. P., overseers, for the costs of the said A. B., amounting to the sum of dollars: You are therefore hereby commanded, in the name of the People of the State of New York, to levy the said costs [as in preceding form from the t to the end, in- cluding the imprisonment clause, and varying as may be requisite]. 845. Revocation by the Overseers, Where a Drunkard Reforms. Town of , ) County of . ) Being satisfied that A. B., respecting whose drunkenness a notice has heretofore been given by us [or, ly 0. D. and E. F., overseers of the poor of said town], has reformed and become temperate, we do hereby revoke and annul the said notice. [Signatures and titles.] [Date.] HIGHWAYS. 437 Analysis of the Chapter. CHAPTEK XLIH. HIGHWAYS. Highways are roads or streets and bridges, laid out or erected by the public, or by others, and dedicated or abandoned to the public. Roads recorded as highways, according to law, and any roads used as such for a period of twenty years, are highways. By the statutes of New York, whenever any corporation owning a toll-bridge, or a turnpike or plankroad, is dissolved or discontinues the road, the bridge or road becomes a highway. By taking or accepting land for a highway, the public acquires only the right of way, and the incidents necessary to enjoying and maintaining it, sub- ject to the regulation of the towns. All trees within the highway, except only such as are requisite to make or repair the road or bridges, on the same land, are for the use of the owner or occupant of the land. This whole subject, however, and the mode of proceeding to lay out, work, alter and close highways, is so fully regulated by the statutes, and there are so many peculiar local systems in the various States, that the statute-book is a safer guide than any statement which such a work as this could give. The following forms, though taken from the practice pursued in New York, will be found useful guides elsewhere. L Appointment of Officebs and Assessment of Labor, etc. FAOB 846. Bond of commissioners 488 847. Approval 439 848. Appointment of commissioner to fill vacancy 439 849. Order dividing town into road districts 439 850. Appointment of overseer to fill vacancy 440 851. List of persons to be assessed 440 852. List of non-resident lands 440 853. Assessment of highway labor 441 854. Additional assessment by overseer 442 855. Appeal by non-resident 442 856. Notice to commissioners, of the appeal '. 442 857. Notice of non-resident's hinds assessed 442 858. Complaint for refusal to work 443 859. For not furnishing team 443 860. Summons upon foregoing complaints 444 861. Eeturn of constable 444 862. Conviction 444 868. Warrant for collection of fine 444 864. List of non-resident lands and unpaid assessments 445 865. Affidavit thereto 445 866. Annual account of overseer 445 867. Affidavit thereto 446 868. Annual account of commissioners .'....; 446 869. Notice of application for additional appropriation '. 447 870. Complaint of overseer's neglect of duty 447 871. Security for costs of prosecuting 447 872. Assessment of additional persons , 448 B73. Appeal from assessment 448 ±38 ABBOTTS' FORMS. Analysis of the Chapter. II. Proceedings to Lay Out, Altbe or Discontinue Roads. PAGE 874. Application to lay out new highway, with consent of land-owner 446 875. Order thereon 448 876. Application to alter highway, with consent 449 877. Order thereon 449 878. Application to lay out new highway, without consent 449 879. Order thereon ' 449 880. Affidavit of posting 450 881. Oaths of freeholders 450 882. Certificate of necessity 450 883. Notice to occupant of land • 450 884. Order laying out the road 451 885. Order refusing to lay out the road : 451 886. Agreement as to damages 451 887. Release of damages 452 888. Application for assessment of damages 452 889. Order appointing commissioners to assess 452 890. Notice of appointment 452 891. Oath of commissioners 453 892. Oath to witnesses 453 893. Assessment of damages 458 894. Notice of reassessment 453 895. Certificate of drawing of jury 454 896. Summons to jurors 454 897. Verdict 454 898. Certificate thereto ' 455 899. Order describing an old highway 455 900. Determination of controversy between two towns 455 901. Order laying out highway on line betweer two towns 455 902. Application to discontinue road 456 903. Oath of freeholders 456 904. Certificate of propriety of discontinuing 456 905-6. Orders thereon 456, 457 907. Appeal therefrom 457 908. Appointment of referees 457 909. Notice of hearing .' 457 910. Decision of appeal 458 911. Notice to remove fences 453 III. Encroachments. 912. Order to remove fences, etc 458 913. Notice for same 459 914. Denial of encroachment 459 915. Precept to summon jury ". 459 916 Notice of hearing 459 I. Appointment of Officers and Assessment of Labor, eto. 846. Bond of Commissioner of Highways. Know all men by these presents, that we, A. B., O. I). and E. F . of the town of Columbus, county of are held and firmly bound unto Y. HIGHWAYS. 439 Appointment of Highway Officers. Z., supervisor of said town, in the sum of one thousand dollars, to be paid the said Y. Z. or his successor in office, to which payment, well and truly to be made, we bind ourselves, our and each of our heirs, jointly and sever- ally, firmly by these presents. Sealed with our seals, and dated this day of , 18 . Whereas the said A. B. has been duly elected [or, appointed], a com missioner of highways in and for said town, to serve for the period of year , from the day of , 18 [or, appointed to serve until the day of next], and until a successor shall be elected or chosen : Now, therefore, the condition of this obligation is such, that if the said A. B. shall discharge his duties faithfully as such commissioner, and pay over to his successor, within ten days after the expiration of his term of office, what money may be remaining in his hands as such com- missioner of highways, and render a true account to such successor of all moneys received and paid out by him as such commissioner, then the above obligation to be void ; otherwise, to remain in full force. [Signatures and seals.] 847. Approval. I approve of the within bond as to the form and sufficiency thereof. [Date.] [Signature and title of supervisor.] 848. Appointment of a Commissioner to Fill a Vacancy. Town of , ) County of . j ' Whereas , who was duly elected [or, appointed] a commissioner of highways in and for said town, to hold said office until the day of ,18 , has resigned [or, died ; or, removed from said town], and by reason thereof a vacancy exists in the office of commissioner of high- ways : Now we, the undersigned, the supervisor and two justices of the peace [or, three justices of the peace] of said town, do hereby appoint A. B. to serve as such commissioner in the place and stead of the said , until the next annual meeting to be held in said town. Witness our hands, the day of , 18 . [Signatures and titles.] 849. Order Dividing a! Town Into Hood Districts. The undersigned, commissioners of highways of the town of [or, the undersigned, two of the commissioners of highways of the town of , all the commissioners of said town], having met and deliberated on the subject embraced in this order [or say, the undersigned, two of the commissioners of highways of the town of , having met and deliber- ated on the subject embraced in this order, all the commissioners of high- ways of said town having been duly notified to attend the said meeting of the commissioners to deliberate thereon], hereby order that the said town be, and it hereby is, divided into road districts, as follows — to wit : MO ABBOTTS' FOKMS. Appointment of Highway Officers. Road district No. 1 shall include [insert a description including the in- tended highways, and the inhabitants on or near the samel. And all the inhabitants liable to work on highways residing therein shall be, and are hereby, assigned to work on said district No. 1. [And may add, The follow- ing inhabitants residing out of said district are assigned and required to work within the same : here name them.] [In like manner designate district No. 2, etc."] Witness our hands, this day of , 18 . [Signatures and titles^] 850. Appointment of Overseer by Warrant of Commissioners, Where a Vacancy Occurs. Town or , ) County of . ) Wheeeas , overseer of highways for road district No. of said town, has refused to serve [or otherwise], whereby the office is vacant: Now, theeefobe, by virtue of the power vested in us by the statute in sach case made, we, the undersigned commissioners of said town [or, the undersigned, two of the commissioners of highways of said town, all the commissioners of said town], having met and deliberated on the subject em- braced in this warrant [or say, the undersigned, two of the commissioners of highways of said town, having met and deliberated on the subject em- braced in this warrant, all the commissioners of highways in said town having been duly notified to attend the said meeting of the commissioners to deliberate thereon], hereby, in order to fill such vacancy, appoint A B. overseer of highways of and for said road district No. Witness our hands, this day of , 18 . [Signatures and titles.] 851. Overseer's List of Persons in Sis District Liable to Highway Labor, To Be Delivered by Him to the Town Cleric. I, A. B., overseer of highways for road district No. , of the town of , hereby certify that the following is a true list made by me of all the inhabitants on said road who are liable to work on the highways. [Date.] Signature of] Overseer. 852. List and Statement of Non-resident Lands by Commissioners. The commissioners of highways of the town of , at a meeting held on the day of , 18 , of which dne notice was given to all the commissioners of highways of said town, have made out the following list and statement of the contents of all lots, pieces or parcels of land within said town of , owned by non-residents therein, through which any 'oad in said town runs, or which bound upon or join any road, and which HIGHWAYS. 441 Assessment, etc., of Highway Labor and Taxes. in the judgment of the said commissioners will he enhanced in value by the highway labor to be assessed thereon. OWNERS. NUMBER OP ROAD DISTRICT. DESCRIPTION OF LAND. [Date.] [Signatures of] Commissioners. 853. Assessment of Highway Labor. At a meeting of the commissioners of highways of the town of , held in said town on the day of [naming them], the said commis- sioners, having proceeded to ascertain, estimate and assess the highway labor to be performed in their town for the ensuing year [if only two agree to the assessment, insert, the undersigned, two of said commissioners], have made out the estimate and assessment for road district No. , in said town, as follows: [Or, if only two of the commissioners were present, then, instead of the pre- ceding, say : The undersigned, two of the commissioners of highways of the town of , having met in said town on the day of ,18 , and proceeded to ascertain, estimate and assess the highway labor to be performed in their town for the ensuing year, all the commissioners of high- ways of said town having been duly notified to attend the said meeting of the commissioners for the purpose of deliberating thereon, have made out the estimate and assessment for road district No. , in said town, as fol- lows:] 1. The inhabitants of said town assigned to said road district are assessed as follows — to wit : NAMES. NAMES. A B C. D G. H 2. The lands owned by non-residents of said town, and situate therein, are assessed as follows — to wit : ownee's name, IF KNOWN. DESCRIPTION OF LAND. ASSESSMENT. Witness our r.ames, this day of , 18 [Signatures of] Commissioners, 442 ABBOTTS' FORMS. Assessment, etc., of Highway Labor and Taxes. 854. Additional Assessment by An Overseer. The quantity of labor assessed on the inhabitants of road district No. , in the town of , being deemed by the undersigned insufficient to keep the roads therein in repair, I, therefore, in pursuance of the statute, hereby make a further assessment, as follows : NAMES. A. B 0. D Witness my hand, this day of E. F.. G. H. 18 4 days. 1 day. [Signature of] Overseer. 855. Appeal to the County Judge, by Non-Resident Owner of Lands, or His Agent, from the Assessment by Commissioners. Town of , ) County of . ) A. B., a non-resident owner [or, agent of C. D., a non-resident owner] of lands in said town, who considers himself aggrieved in the assessment for highway labor hy the commissioners of highways of said town, upon the following described lands — to wit [here insert the description as in the list or statement made by the commissioners], hereby appeals from the assess- ment of said commissioners to the county judge of said county of [Date.] [Signature^ S56. Notice by Owner or Ms Agent, to the Commissioners, of the Preceding Appeal. To [naming them], commissioners of highways of the town of : You are hereby notified, that considering myself aggrieved by your assessment for highway labor of the land owned by me in said town, I have this day appealed to the county judge of the county of , who will hear and decide on said appeal on the day of , at o'clock in the noon, at . [Signature.] [Date.] 857. Notice by the Overseer as to Non Resident Lands, to be Affixed on the Outer Door of the Building in which the Last Town Meeting was Held. I, the undersigned, overseer of highways for road district No. , in the town of , hereby give notice, that the labor assessed on the several tracts of land hereafter mentioned, which have been assessed as owned by non-residents, is to be performed ou the day of next, BiGHWAYS. 448 Assessment, etc., of Highway Labor »nd Taxes. on the highway of said district, between the dwelling-houses of and ; and the owners of said land, or their agents, are hereby required to cause the said labor to be performed accordingly. owners' names. DESCRIPTION OF LAND OE TEAOT. ASSESSMENT. [Date.] [Signature of] Overseer. 858. Complaint Against a Person for Refusing to Work. Town of , ) Cojnty of . ) I, A. ]}., overseer of highways for road district No. , in said town, hereby make complaint on oath to G. H., a justice of the peace of said town, that I gave Y. Z., who resides in said district, and is assessed to work on highways therein, twenty-four hours' previous notice, to appear with a shovel, on the day of , instant, at o'clock m., at the dwelling-house of E. F., for the purpose of working on the highways in said district, under my direction as such overseer ; and that the said Y. Z. neglected to appear, either in person, or by an able-bodied man as a sub- stitute, and has also neglected to pay the commutation money for said work [or, appeared, pursuant to notice, but worked only hours, and then departed ; or, appeared, pursuant to notice, but remained idle ; or, did not work faithfully; or, hindered others from working]; and has not ren- dered any satisfactory excuse to me for such neglect [or, conduct]. Sworn before me, this ) [Signature of] Overseer, day of ,18 .5 [Signature of officer.] 859. Complaint Against a Person for Not Furnishing a Team. Town of , ) County of . ) I, A. B., overseer of highways for road district No. , in said town, hereby make complaint to G. H., a justice of the peace of said town, that I gave to Y. Z., who resides in said district, and is assessed to work days on the highways therein, and has a cart [or, wagon ; or, plough], with a pair of horses [or, oxen], and a man to manage thein, and who has not commuted for his said assessment, twenty-four hours' previous notice, to furnish, on the day of , 18 , at o'clock m., at the house of E. F., in said district, a wagon with horses [or, a cart with a yoke of oxen], and a man to manage them, for the purpose of working one day on the road in said district, under my direction as such overseer; and the said 4M ABBOTTS' FORMS. Assessment, etc., of Highway Labor and Taxes. T. Z. has neglected to furnish such wagon and horses [or, cart and oxen], and a man to manage them, and has also neglected to pay the commutation money for said work, and has not rendered any satisfactory excuse to me for such neglect. Sworn [etc., as in preceding form]. '[»*. 860. Summons to be Issued by the Justice Upon the Complaint of an Over- seer Against a Person Notified, for Refusing to Work, Town of County of To any constable of said town : Whereas complaint has been made to me, the undersigned, a justice of the peace of said town, by A. B., overseer of highways in road district No. , in said town, that Y. Z., who resides in said district, and is assessed for highway labor, and has been duly notified to perform such work, has neglected to appear in pursuance of such notice, either in person, or by au able-bodied substitute, and perform such labor [or, as in preceding forms]:* Yon ake therefore hereby commanded, in the name of the People of the State of New "York, to summon the said Y. Z. forthwith to appear before me, at my office in said town, to show cause why he should not be fined according to law, for such refusal or neglect, as in said com- plaint alleged. Given under my hand, at , this day of , 18 . [Signature of] Justice of the Peace. 861. Return of Constable. Served personally [or, by leaving a copy at the personal abode of the within-named Y. Z.] i [Signature of] Constable. [Bate.] 862. Conviction Indorsed on the Complaint. Town of , ) County of . j The within-named Y. Z. having been duly summoned to appear betore me, to show cause why a fine should not be imposed on him for the offence charged in the within complaint, and he not appearing [or, having ap- peared], and no sufficient cause being shown to the contrary, I hereby im- pose a fine of upon the said Y. Z. for the said offence, together with costs of this proceeding against him. "Witness my hand, ,this day of , 18 . [Signature of] Justice of the Peace. 863. Warrant for the Collection of a Fine Imposed for Neglect to Work. [As in Form 860 to the * continuing thus :] And whereas, I thereupon Issued my summons, reqi : ring the said Y. Z. forthwith to appear before HIGHWAYS. 445 Assessment, etc., of Highway Labor and Taxes. me, at my office, in the said town, to show cause-why he should not be fined, according to law, for such refusal or negleot ; and whereas the said summons has been duly returned, served by , constable, and the said Y. Z. has not appeared before me, or shown sufficient cause to the contrary, I have imposed on him a fine of for his offence complained of as aforesaid, and ascertained and adjudged the costs of the proceedings on the complaint to be : Now, ti-ierefobe, you are hereby commanded, in the name of the People of the State of , to levy the said fine, together with , the costs and charges aforesaid, of the goods and chattels of the said Y. Z., and bring the moneys which you shall collect before me, with this warrant. Given under my hand and seal, this day of , 18 . [Signature of] Justice of the Peace. [Seal.] 864. List of the Lands of Non-residents and of Persons Unknown, on Which the Labor Assessed is Unpaid, to be Delivered to the Supervisor. A list of all the lands of non-residents and of persons unknown, which were taxed on the lists of the undersigned overseer of highways for road district No. , in the town of , on which the labor assessed by the commissioners of highways has not been paid, and of the amount of labor unpaid. DESCRIPTION OF LAND. DATS ASSESSED. DATS T7NPAID. [Date.] [Signature of] Overseer. 865. Affidavit to be Indorsed on the. Foregoing List. OOTTNTY OF , SS. A. B., overseer of highways for road district No. , in the town of , in said county, being duly sworn, says, that in relation to the lands described in the above fist, he has given the notices required by the thirty -third and thirty-fourth sections of title first, chapter sixteen, of part first of the Revised Statutes, and that the labor for which the said lands are returned has not been performed. Swoen [etc., as in Form 858]. [Signature.] 866. Annual Account of an Overseer of Highways. The annual account of A. B., overseer of highways for road district No. , in the town of , rendered to the commissioners of highways of said town, on the day of , in the year 18 . 446 ABBOTTS' FORMS. Assessment, etc., of Highway Labor and Taxes. 1 . The names of all persons assessed to work on the highways, in said road district No. , of which I am overseer, are as follows : {Here insert names.] 2. The names of all those who have actually worked on the highways, with the number of days they have so worked, are as follows : [Here give names, and the number of days worked.] 3. The names of all those who have been fined, and the sums in which they have been fined, are as follows : [Here give names, and the amount of fines.] 4. The names of all those who have commuted are as follows : [Here give names, and the amount paid by each.] 5. And tlie moneys arising from said fines and commutations have been expended by me, as follows : [Here specify the items of expenditure, and the persons to whom paid.] 6. And the following is a list of all the lands which I have returned to , the supervisor of said town, for the non-payment of taxes, and the amount of tax on each tract of land so returned : [Here give owner's name, description of lands, and amount of tax.] [Date.] [Signature of] Overseer. 867. Affidavit to the Foregoing Account. Ootintt of , ss. A. B., overseer of highways for road district No. , in the town of , being duly sworn, says, that the preceding account is true and correct. Swokn [etc., as in Form 858]. [Signatured] 868. Annual Account of the Commissioners of Highways Rendered to Town Auditors. The undersigned, commissioners of highways of the town of , ren- der this their annual account to the Board of Town Auditors, on the day of , 18 . 1. The labor assessed in said town, during the year ending on the date Iiereof, is days, and the amount thereof performed is days, as appears by the account rendered to us by the several overseers of highways in said town. 2. The said commissioners have received for fines and commutations re- ceived under the statute relative to highways, the sum of dollars, as follows [here state them in some such form as this :] FEOM WHOM EEOEIVED. ON WHAT ACCOUNT. HIGHWAYS. 447 Assessment, etc., of Highway Labor and Taxes. 3. The improvements which have heen made on the roads and bridges in said town, during the year immediately preceding the date of this report, are as follows [specifying them]. And the roads and bridges in said town are [here state their condition, specifying whether they are in good repair or 4. Ihe following improvements are necessary to be made on the roads and bridges in said town [specifying them]. 5. And the expense of making such improvements, beyond what the labor to be assessed this year will accomplish, is by us estimated at dollars. Given under our hands, this day of , 18 . [Signatures of] Commissioners. 869. Notice of Application for Additional Appropriation. Notice is hereby given to the electors of the town of , that the undersigned, commissioners of highways, are of opinion that the sum of dollars, as now allowed, will be insufficient to pay the necessary expenses for the improvement of roads and bridges in said town; and that the addi- tional sum of dollars is necessary [here state for what purpose], and the undersigned will apply at the next annual town meeting of said town for a vote authorizing the said sum of to he raised for the purpose aforesaid. [Signatures of] [Date.] Commissioners of Highways. 870. Complaint to the Commissioners of Highways Against An Overseer for Neglect of Duty. To the commissioners of highways of the town of : The complaint of A. B., a resident of said town, respectfully shows, that Y. Z., the overseer of highways for road district No. , in said town, has neglected and refused to warn the following persons [naming them] to work on the highways in said district, after having been required to do so by the commissioners, or one of them. And the said A. B. nereby requires the commissioners of highways aforesaid to prosecute the said Y. Z. for the said offence. [Signature.'] [Date.] 871. Security To Be Owen by Complainant to Commissioners, To Indemnify Them Against the Costs of Prosecuting the Complaint Against Overseer. We, A. B. and E. F., acknowledge ourselves indebted to the commis- sioners of highways of the town of in the sum of dollars, which wejointly and severally bind ourselijes to pay. [Date.] The condition of this obligation is such, that if the said A. B. does well and truly indemnify the said commissioners of highways against the costs which may be incurred in prosecuting Y. Z., the overseer of highways for road district No. , for the penalty incurred by the said Y. Z. in the re- 448 ABBOTTS' FORMS. Proceedings to Lay Out or Alter Roads. fusal or neglect set forth in the annexed complaint, then this obligation to he void ; otherwise, of full force. [Signatures and seals.] 872. Assessment by Overseer, on Persons Left Out of the List. The following named persons having been left out of the foregoing for, annexed] list for road district No. , in the town of (they having become inhabitants of said district since said list was made), I hereby assess the said persons to work on the highways in said district, as follows — viz.: A. B., 3 days [etc.] [Signature of] Overseer. [Bate.] 873. Appeal to Commissioners from Overseer's Assessment. To the commissioners of highways in the town of , county of : Take notice, that I hereby appeal from the assessment made by the over- seer of road district No. for the following reasons [stating them]. [Date.] [Signature.] II. Proceedings to Lay Out, Altee and Discontinue Roads. 874. Application to Commissioners To Lay Out a New Road Through Un- improved Land, or Through Improved Land With the Consent of the Owner. To the commissioners of highways of the town of , in the county of : The undersigned, a person liable to be assessed for highway labor in said town, and residing therein, hereby applies to you to * lay out a new road of the width of rods, through land which is not inclosed, im- proved or cultivated [except as to land of , who consents to the lay- ing out of said road, and has signified the same by signing this petition] ; beginning at [describing the road by courses and distances, or such objects and boundaries as make the route sufficiently definite and certain]. [Signature.] 875. Order of Commissioners To Lay Out a Highway Through Lands Not Inclosed, Improved or Cultivated, Excepting in Part, and by the Consent of the Owner of That Part. At a meeting of the commissioners of highways of the town of , in the county of , at the town-house in said town, on the day of ,18 , all the said commissioners having met and deliberated on the subject embraced in this order [or, all the said commissioners having been duly notified to attend the said meeting, for the purpose of deliberating upon the subject-matter of this order], * it is oedeeed and determined by the said commissioners^ , that a highway be laid out in the said town, of the width ot rods, on the application of A. B., and by the consent o HIGHWAYS. 449 Proceedings to Lay Out or Alter Roads. , through whose improved land the said highway is to pass for a part of the distance; the residue of said highway being through lands not inclosed, improved or cultivated. And the said commissioners have caused a survey thereof to he made, as follows: [here insert the description.] In witness whereof, the undersigned commissioners of highways of said town have hereunto subscribed their names, this day of , 18 . [Signatures of] Commissioners. 876. Application To Alter a Road, Where the Alteration Passes Through. Land Not Improved, Inclosed or Cultivated, or Through such Land by the Consent of the Owner. To the commissioners of highways of the town of , in the county of : We, the undersigned [names], residents of [or, liable to be assessed for highway labor in] said town, hereby apply to yon to alter the highway [here designate what road, and insert a description of the proposed alteration by courses and distances, or by objects and boundaries, so as to render it suf- ficiently certain and definite]. The proposed alteration passes through lands which are not improved, inclosed or cultivated [or, passes through the improved land of , who consents thereto by signing this petition]. [Date.] [Signatures.] 877. Order of the Commissioners To Alter a Highway. [As in Form 875 to thef, continuing thus:] upon the application and by the consent of , through whose land the alteration hereafter described is to be made, that the highway [designating it, and stating the alteration — e. g., thus :] leading from the house of to the house of , in said town, be altered according to the following survey, which the commis- i sioners have caused to be made thereof — to wit: The centre line of the road as altered is to begin at the centre of the present highway, opposite , and to run thence [etc., etc.], and that the said alteration be of the width of rods. In witness [etc., as in Form 875]. 878. Application to Lay out a Highway Through Improved Land, With- out the Consent of the Owner. ££ [As in Form, 874 to the *, continuing thus :] to lay out a highway in said town, commencing at [here insert a description], which said highway will pass through the improved [or, inclosed, or, cultivated] lands of , who do not consent to the laying out of the same. [Date.] [Signature.] 879. Notice of Application, and of the Meeting of Freeholders, when the In- tended Highway is Through Improved or Cultivated Land. Notice is hereby given, that the undersigned has applied to the Oommis- 29 4:50 ABBOTTS' FORMS. Proceedings to Lay Out or Alter Roads. sioners of Highways of the town of , in the county of , for the laying out of a highway, commencing [here insert description], and which highway will pass through improved land of , [designating it]; and that on the day of , at o'clock in the noon, at the house of , in said town, twelve freeholders, duly qualified for that purpose, will meet to examine the ground and premises, and to certify with respect to the necessity and propriety of such highway. [Date.] [Signature.] 880. Affidavit of Affixing the Notice of Application. County oe , ss. A. B., of , in said , being duly sworn, says, that he caused notices in writing, of which the within is a copy, to be posted up at , , and , three of the most public places in said town, on the day of , being at least six days before the time specified therein hr the meeting of the freeholders. [Signature.] Swobn [etc., as in Form 858]. 881. Oath of 'Freeholder s.(a) You, and each of you, do solemnly swear, well and truly to examine and certify in regard to the necessity and propriety of the highway applied for through the land of , and others. So help you God. 882. Certificate of Necessity. Town or ,) County of . S "We, the undersigned, twelve freeholders of the said town, not interested in the lands through which the road described in the annexed notice is to be laid, nor of kin to any owner thereof, having appeared at the time and place specified in said notice, and having been duly sworn well and truly to examine and certify in regard to the necessity and propriety of the high- way applied for ; and having proceeded to and personally examined the route of such highway, and heard all reasons that were offered for and against laying out the same, hereby certify that we are of opinion that the highway applied for and described in the annexed notice, is necessary and proper. "Witness our names, this day of , 18 . [Signatures.] 883. Notice to be Given by the Commissioners to the Occupant of Land Through which the Road is to Run. To : Please take notice, that on the day of , 18 , at o'clock in (o) For other forms of oaths :-." affirmations, see page 248, ante. HIGHWAYS. 451 Proceedings to Lay Out or Alter Roads. the noon, at the house of , in the town of , we, the under- signed, commissioners of highways of said town, will meet to decide on the application of A. B., for the laying out [is in application], twelve qualified freeholders, pursuant to the provisions of the statute, having cer- tified that the road is necessary and proper. [Date.] [Signatures of] Commissioners. 884. Order by the Commissioners Laying out a Road Tljrough Improved Land. [As in Form 875 to the*, continuing thus:] upon the application of A. B., a resident in said town, and liable to be assessed to work on the highways therein, for the laying out of the highway hereafter described, and on the certificate of twelve reputable freeholders of said town, convened and duly sworn, after due public notice, as required by the statute, certifying that such highway is necessary and proper; and notice in writing, of at least three days, having been given in due form of law to , occupants of the lands through which the highway hereafter described is to run, that the undersigned commi-sioners would meet at this time and place to decide on the application aforesaid, and the undersigned having heard all the reasons offered for and against laying out such highway, it is ordered, determined and certified that a public highway shall be, and the same hereby is laid out pursuant to said application, whereof a survey hath been made, and is as follows : [designating it, as in Form 875]. Witness [etc., as in Form 875]. [Signatures of] Commissioners. 885. Order of Commissioners Refusing to Lay Out or Alter a Highway. [As in Form 875 to the\, continuing thus:] that tho application of A. B., dated the day of , for the laying out [or, altering] of the highway therein mentioned, be, and the same hereby is denied. Witness [etc., as in Form 875]. 886. Agreement as to Damages. It is hereby agreed between the commissioners ot highways of the town of . , of the one part, and Y. Z., of the other part, that the damages sustained by the said Y. Z., by reason of the laying out and opening of a highway through the lands ot the said Y. Z., on the application of A. B and others, by order of the commissioners, dated the day of be fixed and liquidated at the sum of dollars. Witness our hands, this day of , 18 . [Signatures of owner and of commissioners^ 452 ABBOTTS' FORMS. Proceedings to Lny Out or Alter Roads. 887. Release of Damages By the Owner. I do hereby release to the People of the State of , all claim to damages by reason of the laying out and opening of a highway through my .ands in , by the commissioners of highways. Witness my hand and seal, this day of ,18. [Signature and seal.] ■i 888. Application to County Court to Appoint Commissioners to Assess Damages. To the County Court of County : The commissioners of highways of the town of , in said county, by an order dated , having laid out a highway in said town, as fol- lows : [insert description."] Now, thehefoee, we, the said commissioners, hereby apply to the said court to appoint commissioners to assess the damages occasioned by the laying out of said highway, pursuant to the statute in such case made and provided. [Date.] [Signatures of] Commissioners.- 889. Order of Court Appointing Commissioners. At a term of the County Court of the county of , held at the court- house in the city of , on the day of , 18 . Present — , County Judge. On reading and filing the application of , commissioners of high- ways, of the town of , in said county, dated the day of , asking the appointment of commissioners to assess the damages occasioned by laying out a highway, ohdkked, that , and be and they hereby are appointed such commissioners. 890. Notice to the Commissioners of Their Appointment, and of Meeting With Highway Commissioners to Assess Damages. To [names of commissioners] : Please take notice, that you have been duly appointed, by an order of the County Court, a copy of which is hereto annexed, commissioners to assess the damages sustained by reason of the altering [or, laying out and open- ing] the highway mentioned and described in said order; and you are hereby notified to meet with the undersigned commissioners of highways at , in the town of , in said county, on the day of , 18 , at o'clock in the noon, to view the premises and hear and determine the matter. [Date.] [Signatures of] Commissioners of Highways. HIGHWAYS. 453 Proceedings to Lay Out or Alter ltoada. 891. Oath of Commissioners to Assess Damages. County of , ss. I do solemnly swear [or, affirm] that I will support the Constitution of the United States, and the Constitution of the State of New York; and that I will faithfully discharge the duties of commissioner to assess the damages for laying out [or, altering] the highway in the town of , in the county of , commencing at [briefly designating it], according to the best of my ability. Swoen [etc., as in Form 858]. [Signature.] 892. Oath to be Administered by the Commissioners to Witnesses.{b) You do solemnly swear, that the evidence you shall give touching the assessment of damages for the laying out [or, altering] the highway here in question, shall be the truth, the whole truth and nothing but the truth. So help you God. 893. Assessment by Commissioners. The -undersigned having been appointed, by an order of the County Court of County, dated , on the application of the commis- sioners of high nays of the town of , in said county, commissioners to assess the damages occasioned by the laying out [or, altering] of a highway in the said town, beginning at [insert description], which highway passes through the improved lands of , as laid out by said highway com- missioners, by an order dated : Now, thekefoke, the said commis- sioners having been duly qualified, and having all met and acted on the said assessment at , in said town of , this day of , 18 , pursuant to a notice from said commissioners of highways, according to law, and having viewed the premises, and heard the allegations of the parties and the evidence of the witnesses, we, the cndeksignkd, thereupon determine and assess the damages required to be assessed on the said high- way, as follows : the damages of at dollars [etc.] [Date.] [Signatures of] Commissioners. 894. Notice for Reassessment where Party is Aggrieved. Considering myself [or, ourselves] aggrieved by the assessment of damages made by , commissioners appointed by the County Court to assess damages occasioned by the laying ou't of a highway in the town of , which said assessment was filed in the clerk's office of said town, on the day of ,18,1 [or, we] hereby demand a jury to reassess the said damages ; and such jury will be drawn at the clerk's office of the town of , in said county, adjoining said town, on the day of ,18 , by the town clerk of said last-named town. [Date.] [Signature.] (J) For other forms of oaths sea pago 22, ante. i5 * ABBOTTS' FORMS. Proceedings to Lay Out or Alter Rnads. 895. Certificate of Drawing of Jury oy Town Cleric. The undersigned, town clerk of the town of , in the county of , hereby certify that on the day of , 18 , at my office in said town. the following names of twelve persons were drawn by me from a box con- taining the names of all such persons, now residents of said town, whose names are on the last list filed in the town clerk's office of said town, ot those selected and returned as jurors, pursuant to the provisions of the Re- vised Statutes, they not being interested in the lands through which passes the road in the town of , laid out by the commissioners of highways, on the day of , nor of kin to any of the persons interested' in said lands ; the said twelve names being so drawn by me to make a jury to reassess the damages occasioned by the laying out of the said highway — to wit [naming them]. [Signature of] Town Clerk. [Bate.] 896. Summons by the Justice to the Jurors. ' Xss. JOUNTY OF Town of To any constable of the town of , in said county, greeting: Yotr are hereby commanded to summon [name all the jurors drawn], urors regularly drawn by , town clerk of the town of , to re- assess the damages for laying out [or as the case may be] the highway [describe the highway, as in the certificate of drawing], to meet at the house of , in the town of , aforesaid, on the day of next [or, instant], at o'clock in the noon of that day, for the purpose above specified. And have you then there this precept. . Given under my hand, this day of , 18 . [Signature of] Justice of the Peace. 897. Verdict of the Jury. County of , ) Town of . ) We, the undersigned, the jurors drawn, summoned and sworn to re- assess the damages for laying out [or as the case may be] the highway [describe the highway], in pursuance of the order of , commissioner of highways in und for the town of , bearing date the day of' , 18 , having viewed the premises, and heard the parties, and such wit- nesses as were ofibred before us, hereby reassess the damages aforesaid, as follows : To , the sum of dollars, for the damages sustained by him by reason of the laying out [or as the case may be] the said highway; to , tl e sum of, etc. [specifying all the parties to whom damages may be awarded]. In witness whekeof, we have hereunto set our hands, this day of ,18 . [Signatures) Jmm of the] ) HIGHWAYS. 455 Proceedings to Lay Out or Alter Roads. 898. Certificate of the Justice. County of , ) Town of . i I, G. H, one of the justices of the peace of the said town, do certify that the above is the verdict of the jury summoned by my summons, and drawn and sworn by me to determine and reassess the damages for the laying out [or as the case may be] the highway mentioned in the said verdict. Given [etc., as in Form ! 899. Order Ascertaining and Describing an Old Highway. [As in Form 875 to the *, continuing thus :] it appearing to the said com- missioners that the road in said town, used as a highway, leading from to , has been laid out, but not sufficiently described of record [or, has been used as a public highway for twenty years, but has not been recorded] : rr is ordered by the said commissioners, that the said road be ascertained, described and entered of record ; and that the description, courses and dis- tances of said road be according to a survey which they have caused to be made of the same, as follows : [insert survey], and that the line of said survey be the centre of said road, and said road be of the width of rods. Witness [etc., as in Form 875]. 900. Determination on a Subject of Disagreement Between the Commissioners of Two Towns, Relating to a Road Extending Into Both. At a joint meeting of the commissioners of highways of the towns of and respectively, in the county of , held at , on ;he day of , 18 , upon the request of the said commissioners for the town of , for the purpose of making a determination upon the subject of a disagreement between the said commissioners relative to laying out [or, altering] a road hereinafter described, and extending into both the Baid towns, the said commissioners hereby determine that the said road be laid out [or, altered] as follows : [here set forth the manner.] "Witness [etc., as in Form 875]. 901. Order of Commissioners Laying Out a Highway on the Line Between Two Towns. At a joint meeting of the commissioners of highways of the towns of and respectively, in the county of , held at , on the day of , 18 , for the purpose of laying out a highway upon a line between the said town*, two of the commissioners of each of the said towns being present, it is ordered and determined by the said commissioners, that, a highway be laid out upon the line between the said towns, or as near thereto as the convenience of tlie ground will admit, according to a survey thereof, which the said commissioners have caused to be made a? follows : [insert survey] ; and that the said line, as above de- 456 ABBOTTS' FOEMS. Proceedings to Discontinue Koads. scribed, be the centre of the said highway, and that the said highway be of the width of rods. It is further ordered, that the said highway be divided into road districts, as follows : the part from to shall be one of the said road districts, and shall be allotted to the said town of , and the part from to shall be the other of the said road districts, and shall be allotted to the said town of "Witness [etc., as in Form 875]. 902. Application to Discontinue an Old Road. To the Commissioners of Highways of the town of , in the county of : The undersigned, a resident of said town, liable to be assessed for high- x way labor, hereby applies to you to have the old road in said town [here ■ designate it, giving the termini] discontinued, on the ground of its having become useless and unnecessary. [Bate.] [Signature.] 903. Oath of Freeholders, Upon Application for the Discontinuance of a Soad.(c) You, and each of you, do swear, that you will well and truly examine and certify in regard to the propriety of the discontinuance of the road for whioh A. B. has made application. So help you God. 904. Certificate of Freeholders for the Discontinuance of an Old Road. We, the undersigned, disinterested freeholders of the town of , having met at the , on this day of , 18 , pursuant to the summons of the commissioners of highways of said town, in order to examine and certify in regard to the propriety of discontinuing the road described in the annexed application, having been duly sworn, and having viewed said road, certify that the same, in our opinion, is useless and un- necessary. Witness [etc., as in Form 882]. 905. Order of Commissioners for Discontinuing a Road. [As in Form 875 to the *, continuing thus :] upon the application of A. B., of said town, for the discontinuance of the road hereinafter described, and on the certificate of twelve disinterested freeholders duly summoned and sworn, who have in due form certified that said road t is useless and un- necessary, and the said commissioners having caused a survey of said road to be made as follows :> [here insert the survey] ; it is ordered and determined by the said commissioners, that the said road be, and the same hereby is discontinued. In witness [etc., as in Form 875]. (fi) For other forms of oaths and affirmations, see page 248, ante. HIGHWAYS. 457 Appeals. 906. Order Refusing to Discontinue a Road. [As in the preceding form, substituting for the words following thei these words:] is necessary for the accommodati >n of the public and various per- sons living in that part of the town, it iif ordered and determined by the said commissioners that the application to discontinue the said road he re- fused. 907. Appeal to the County Court. To the county judge of the county of : Please take notice, that considering myself aggrieved by the order of the commissioners of highways for the town of , in said county, ot which a copy is hereto annexed, I hereby appeal to you therefrom, and ask that referees be appointed, pursuant to the statute, to hear and determine said appeal. This appeal is brought to reverse said order entirely [or as to a specified part], on the ground that [here state the ground of error]. [Date.] [Signature.] 908. Appointment of Referees. A. B., of [and 0. D., of ], having appealed from the de- termination of the commissioners of highways of , made on the day of , 18 , in laying out [or, refusing to lay out; or, alter- ing; or, discontinuing] a highway therein,* particularly described in the notice of appeal, and sixty days having now elapsed since such determina- tion was filed in the office of the town clerk of : Now, therefore, I, M. N., county judge of said county, hereby appoint [here insert names], residents of the town of , and disinterested freeholders, who have not been named by any of the parties interested in said appeal, as referees, to hear and determine all the appeals that have been brought in relation to said determination. (d) [Signature and title.] [Date.] 909. Notice By the Referees of the Hearing. To the commissioners of highways of the town of : Please take notice, that the undersigned referees, duly appointed by M. N"., county judge of County, to hear and determine an appeal made to the said judge by A. B., of the town of , from the determination of the highway commissioners of , made on the day of , 18 , and filed in the town clerk's* office of said town, on the day of , 18 , laying out [or, refusing to lay out; or, altering; or, dis- continuing] the road in said order described, will meet at , in said town of , on the day of , 18 , at o'clock in the noon, to hear and determine said appeal. [Date.] [Signatures.] [Address to commissioners and to appellants.] (d) Where several persons separately osway v. Winant, 34 Barb., 578 ; S. C, 18 appeal, there should be but one set of ruf- Abbotts' 1 />., 21« erees, one hearing and one order. Dis- 458 ABBOTTS' FORMS. Proceedings to Remove Encroachments. 910. Decision By the Referees Upon the Appeal. [As in Form 908 to the *, continuing thus:] contained in their order of that date, filed in said town clerk's office, a copy of the notice of which appeal is hereto annexed ; and the undersigned having been duly appointed by the county judge, referees to hear and determine the said appeal, at- tended at , in the town of , on the day of , 18 , at o'clock in the noon, pursuant to notice by us duly given to the several parties, according to the statute; and having heard the proofs and allegations of the several parties, and due deliberation thereon being had, we hereby decide, adjudge and determine, that the said order and deter- mination of the said commissioners be, and tlie same is in all things reversed* [or, in all things affirmed ; or, is reversed in part ; or, affirmed in part, as follows: set forth the part reversed']; [and if the road is to be laid out by the referees, add: and we do further order and determine, that the said highway be laid out in accordance with the application of the said A. B., and the same is hereby described as follows : insert description]. Witness [etc., as in Form 875]. 911. Notice to Occupant of the Land to Remove His Fences Please take notice, that the undersigned commissioners of highways of the town of [or, referees appointed by, etc.], having, by an order duly made, and filed with the town clerk, dated the day of , 18 , laid out [or, altered the course of] a public highway through your inclosed lands, hereby require you to remove your fences from within the hounds of said highway within sixty days after the service of this notice. [Bate.] [Signatures of] Commissioners. [Address.] HI. Encroachments. 912. Order by the Commissioners To Remove Fences Encroaching On the Highway, [As in Form. 875 to the *, continuing thus ■] having ascertained that the publio highway in said town, leading from to , is encroached upon and obstructed on the side thereof, along the lands in the occu- pation of A. B., by-a fence which forms part of the inclosure of said land; and having caused the said highway to be surveyed, and having ascertained the true bound and limit thereof on that side to be upon the following line [here insert the suney of the line oner which the encroachment is made], and that the strip of land which lies between the said fence and the line above described is a part of the public highway aforesaid: it is ordered by the commissioners of highways of said town, that the said fence be removed, so that the highway be open and unobstructed, and of the breadth origi- nally intended, which was rods. Witness [etc., as in Form 875]. HIGHWAYS. 459 Encroachments. 913. Notice to Occupant To Remove Encroachment. Please take notice, that an order, of which a copy is hereto annexed, has been duly made by the commissioners of highways of the town of , and you are required, according to the statute, to remove the fence therein mentioned within sixty days after service of this notice. [Date.] [Signatures of] Commissioners. [Address.] 914. Denial of Encroachment by the Occupant. To the commissioners of highways of the town of : Please take notice, that I deny that the highway is encroached upon as stated in the order made by you, dated ,18 , and referred to in your notice to me, dated ,18 , or in any way or manner encroached upon, along the lands occupied by me. [Date.] [Signature.] [Address.] 915. Precept To Summon Jury, in Case of An Encroachment.(e) County of Town of To any constable of the said town, greeting : You are hereby commanded to summon twelve freeholders of the said town of , to meet at the house of , in said town, on the day of instant, at o'clock in the noon, to inquire whether any en- croachment has been made, and by whom, on the highway running by [or, through] the land now occupied by A. B., in said town ; and to give at least three days' notice to the commissioners of highways of said town, and to A. B., of the time and place at which the said freeholders are to meet ; and have you then there the names of the freeholders summoned by you, and this precept. Given under my hand, this day of , 18 . [Signature of] Justice of the Peace. 916. Notice to the Commissioners and Occupant, of the Meeting of Jury. Please take notice, that twelve persons, freeholders of the town of , have been duly summoned to meet at the house of , in said town, on the day of , 18 , at o'clock in the noon, to in- quire in regard to the alleged encroachment upon the highway in said town, where it runs through [or, by] the lands occupied by A. B. [Date.] [Signature of] Constable. '[Address.] («) By a recent statute in New York, be entered and enforced accordingly, the issue in such cases is to be tried as Laws of 1362, 440, ch. 248. issues in civil actions, and judgment to 460 ABBOTTS' FORMS. Homesteads. CHAPTEE XLIV. HOMESTEADS. - The Homestead law of the United States(a) gives to every person who is the head of a family, or who is 21 years of age, and is a citizen of the United States, or has declared his intention of becoming such, and who has done no disloyal act, direct or indirect, and any such person who, though a minor, has served not less than fourteen days in the army or navy of the United States, either regular or volunteer, during actual war, domestic or foreign, has the right to enter one quarter-section, or a less quantity, of unappropriated public land, upon which he may have filed a pre-emption claim, or which, at time of application, is subject to pre-emption at $1.25 per acre ; or eighty acres, or less, of such unappropriated lands at $2.50 per acre. The land must be located in one body, in conformity to the legal subdivisions of the public lands, and after the same shall have been surveyed. Any person owning and residing on U nd may enter contiguous land, which, with that already owned and occupied, shall not exceed in the aggregate one hundred and sixty acres. The application must be filed with the register of the proper Land-office, and designate the tract desired to be entered. The applicant must also file his affidavit, to be taken before the register or receiver, setting forth the facts which bring his case within the requirements of the law. The patent will issue after five years' settlement. Lands acquired under this act are not liable for debts contracted prior to the issuing of the patent. Abandonment of the land for more than six months, at any time within the ■ five years, causes forfeiture. Exemption of Homesteads. — By the laws of some of the States, homesteads owned t>y the heads of families, and occupied by them, are exempt from sale on execution. The statute of New Ycrk(6) enables the householder having a family to se- cure such an exemption by having the conveyance to him drawn so as to show that the property is designed to be held as. a homestead ; or, if already put- chased, or the conveyance does not show such design, a notice that the same is designed to be so held must be executed and acknowledged by the person owning the property, which shall contain a full description thereof, and must be recorded in the office of the clerk of the county in which the property is situated. The exemption does not extend to sales for. non-payment of taxes or assessments, or for a debt contracted for the purchase of the prop- erty, or prior to the recording of the deed or notice, or for any debt contracted on or before the 10th of April, 1850. Nor does the exemption extend to a cause of action for a tort. The exemption is a mere personal privilege, which the statute secures to the debtor, and to his widow and children after his decease ; and does not run wi th the land, and cannot be transferred to another with the land. If, in the opinion of a sheriff holding an execution against such householder, the premises claimed as exempt exceed one thousand dollars in value, he is to summon six jurors to appraise them. (a) Laws of 1862, 12 Stat, at £., 892; (b) Laws o/1850, oh. 260. »nd of 1864, 18 lb., 85. HOMESTEADS. 461 Application to Enter Public Lund. I. Entry of public lands for homesteads. pagb 917. Application to secure a homestead 461 91S. The same ; by absent soldier or sailor 461 919. Certificate of register 462 920. Affidavit of applicant for homestead 462 II. Exemption from execution for debt. 921 . Notice of design to hold homestead exempt 463 922. Acknowledgment of the foregoing 46S 928. Clause in a deed securing exemption 463 924. Waiver of exemption 468 925. Oath of jurors summoned to appraise homestead 463 926. Finding of the jury, setting olf part af the land 464 927. The same ; where the property cannot be divided 464 928. Notice of the foregoing to the debtor 464 I. Entet of Public Lauds for Homestead. 917. Application To Secure a Homestead. Application) Land-office at , No. . S [Date.-] I, A. B., of , do hereby apply to enter, under the provisions of the act of Congress approved May 20, 1862, entitled "An Act to secure home- steads to actual settlers on the public domain," and the acts amending the same, the of section in township of range con- taining acres [in pre-emption cases add, having filed my pre-emption declaration thereto on the day of , 18 ]. [Signature.'] 918. The Same; By Absent Soldier or Sailor. Application) State of , County of No. . \ [Date.] I, A. B., of , being in the military [or, naval] service of the United States, do hereby apply to enter, under the provisions of the act approved March 21, 1864, amendatory of the Homestead act approved May 20, 1862, and for other purposes, a certain tract of land which 0. B. my wife [or other duly authorized representative] is hereby authorized to designate, at the foot of this application, as my homestead, and which I hereby agree to hold as my own selection. [Signature.] Attest: M. N, Commanding Officer at [Rank and service.] I, C. B., wife [or other duly authorized representative] of A. B., as named in the foregoing application, No. , do hereby designate the tract selected for his homestead as the section, township , range •, con- taining acres. Witness my hand, this day of , 18 . [Signature.] 462 ABBOTTS' POEMS. Homesteads. 919. Certificate of Register. Land-office at , [Date.] I, , register of the Land-office, do hereby certify that the above ap- plication is for surveyed lands of the class which the applicant is legally entitled to enter under the Homestead act of May 20, 1862, and that there is no prior, valid adverse right to the same. [Signature of] Register. 920. Affidavit of Applicant for Homestead. Land-offioe at , [Date.] I, A. B., of , having filed [or, being now in the military — or, naval — service of the United States, and proposing to file] my application, No. , for an entry under the provisions of the act of Congress, approved May 20, 1862, entitled "An Act to secure homesteads to actual settlers on the public domain," and the acts amending the same, do solemnly swear that [here state whether applicant is the head of a family, or over twenty-one years of age ; whether a citizen of the United States, or has filed his declara- tion of intention of becoming such; or, if under twenty-one 'years i of age, that he has served not less than fourteen days in the army or navy of the United States during actual war ; and add in all cases :] that he has never borne arms against the Government, or given aid and comfort to its ene- mies ; that said application, No. , is made for his [or, her] exclusive use and benefit ; and that said entry is made for the purpose of actual settle- ment and cultivation, and not, directly or indirectly, for the use or benefit of any other person or persons whomsoever. Sworn to and subscribed, this day > [Signature.] of , 18 , before J [Signature of] Register [or, Receiver] of the Land-office.(c) (c) The act of 1864 (§ 3) relieves parties Then the clerk of the county adrmnister- from personal attendance at the district ing the oath must certify under seal as to land-office, in making homestead entries, the making of the affidavit, and also ns to who are prevented from such attendance the actual residence of the party in the by reason of distance, bodily infirmity, or county. other good cause. This class of persons If the affidavit is made by a person ab- the law allows to make the affidavit re- sent in the service, it may be made before quired by the original statute " before the a commissioned officer, and the jurat will clerk of the court for the county in which be thus : the applicant is an actual resident." The Sworn to and subscribed, this day above form of affidavit may be used in of , before , U. S. Commanding this class of cases by adding, in the body Officer of at [designating rani of the affidavit, the averment, under oath, and service]. stating explicitly the cause of disability. HOMESTEADS. 463 Exemption. II. Exemption from Execution foe Debt. 921. Notice of Design to Hold a Homestead as Exempt from Execution. To whom it may concern : Take notice, that I design to hold as a homestead exempt from sale on execution, according to the provisions of the act entitled " An Act to ex- empt from sale on execution the homestead of a householder having a family"— passed April 10, 1850 — the following described property and premises: [here describe the premises in fall, in the same manner as in a deed], [Date.] [Signature.] 922. Acknowledgment of the Foregoing. OotTNTT OF , SS. On this day of , 18 , before me personally came A. B., to me known to be the individual who executed the above notice, and acknow- ledged that he executed the same for the purpose therein mentioned. [Signature and title of officer.] 923. Clause in Deed Securing the Premises as a Homestead. The premises above described and hereby conveyed, are designed to be held as a homestead, exempt from sale on execution, according to the " Act to exempt from sale on execution the homestead of a householder having a family;" passed April 10, 1850. 924. Waiver of Exemption. [If not contained in a contract or other instrument, commence by reciting the consideration — e. g., thus:] Wiikeeas I am indebted to Y. Z. in the Bum of dollars, for which I have confessed judgment to him [or, he has obtained judgment against me : Now, theeefoee, and in consideration of one dollar to me paid], I do hereby release and waive any and all benefit or advantage, by virtue of the "Act to exempt from sale on execution the homestead of a householder having a family" — passed April 10, 1850 — so that any property held by me as exempt under it or by virtue thereof may be levied upon and sold on any execution issued against me for any demand owing to the aforesaid Y Z. Witness my hand, this day of , 18 . [Signatured] [Acknowledgment as above.] 925. Oath of Jurors Summoned by Sheriff to Appraise Homestead. You and each of you do solemnly swear, that you will well and truly perform the duties of a juror in regard to the matters submitted to you, according to the Homestead law of this State. 464 ABBOTTS' FOKMS. Exemption of Homesteads. 926. Finding of the Jury, Setting off Part of the Land. Couet. y. z. agt. A. B. County of , ss. , We, the undersigned jurors, summoned pursuant to the Homestead law of this State, by the sheriff of said county, who holds an execution against A. B., above named, do hereby certify, that we have examined the follow- ing described premises, situate in the town of , in said county — to wit: [insert here a description of the premises], which said premises are owned by A. 3. aforesaid, and are claimed by him to be exempt from sale on execution according to the act aforesaid, and that in our opinion said premises are worth* dollars, and may be divided without injury to the interests of the parties concerned therein : And we do hereby set off to the said Y. Z. the following described portion of the said premises — to wit: {describe the same], which last-mentioned piece or parcel of land, in- cluding the dwelling-house thereon, and the appurtenances belonging thereto, is, in our opinion, worth dollars. [Bate.] [Signatures of] Jurors. 927. Finding of the Jury Where the Property Gannot be Divided. [As in the preceding form to the*, continuing thus:] more than one thousand dollars, and cannot be divided without injuring the interests of the parties concerned therein. And we do hereby appraise the value of the said premises at dollars. [Date and signatures as above.] 928. Notice of the Foregoing, Given by the Sheriff to the Judgment Debtor. Take notice, that the within [or, foregoing] is a copy of an appraisal this day made by the jurors therein named, duly summoned and qualified, and that unless you pay the undersigned sheriff of the county of the sur- plus therein named over and above $1,000 within sixty days from the date thereof, such premises will be sold by me, by virtue of an execution issued against you in favor of one Y. Z. [Date.] [Signature. [Address.] HUSBAND AND WIFE. 4G5 Articles of Separation. CHAPTER XLV. HUSBAND AND WIFE. The forms for Marriage, and Marriage Settlements, are treated under their respective titles. Husband and wife cannot, in general, make binding executory contracts with each other, but transactions based on such contracts are sometimes upheld in courts of equity for the protection of the parties. By the principles of the common law, a married woman cannot, as a general rule, make a valid contract of any description in relation to either real or personal property. But recent statutes adopted in many of the States have empowered married women to hold separate property and to make contracts in relation thereto, in most respects, as if unmarried. At common law, conveyances of property between husband and wife are not valid, but are sustained in equity in proper cases. But it is competent to a husband and wife to convey land to a third person, and for him to reconvey to either. An agreement for a separation and for a separate allowance to the wife, may be made through the medium of a trustee. But such an agreement is not valid unless the separation has already taken place, or is to take place immediately. But in case of such separation, unless a separate maintenance is given her, the husband will continue to be liable for her contracts for necessaries furnished to her. 929. Articles of Separation. This indenture, made this day of , one thousand eight hundred and , between A. B., of , merchant, of the first part, and 0. B. his wife of the second part, and Y. Z., of , merchant, as trustee of the said 0. B., of the third part: Whereas divers disputes and unhappy dif- ferences have arisen between the said party of the first part and his said wife, for which reason they have consented and agreed, and hereby do con- sent and agree, to live separate and apart from each other during their natural life: Therefore this indenture witnesseth, that the said party of the first part, in consideration of the premises, and in pursuance thereof, does hereby covenant, promise and agree to and with the said trustee, and also to and with his said wife, that it shall and may be lawful for her, his said wife, at all times hereafter, to live separate and apart from him, and that he shall and will allow and permit her to reside and be in such place and places, and in such family and families, and with such relations, friends and other persons, and to follow and carry on such trade or busine-s as she may from time to time choose or think fit ; and that he shall not, nor will at any time, sue, or suffer her to be sued, for living separate and apart from him, or compel her to live with him; nor sue. molest, disturb or trouble any other person whomsoever, for receiving, entertaining or harboring her; and that he will not, without her consent, visit her, or knowingly enter any house or place where she shall dwell, reside or be, or send, or cause to be sent, any letter or message to her; nor shall or will at any time hereafter, 30 4:66 ABBOTTS' FORMS. Imprisoned Debtors. claim or demand any of her money, jewels, plate, clothing, household goods, furniture or stock in trade, which she now has in her power, custody or possession, or which she shall or may at any time hereafter have, buy or procure, or which shall be devised or given to her, or that she may other- wise acquire, and that she shall and may enjoy and absolutely dispose of the same as if she were a feme sole and unmarried ; and further, that the said party of the first part shall and will well and truly pay, or cause to be paid, for and towards the better support and maintenance of his said wife \heve state the provision for maintenance], which the said party of the second part does hereby agree to take in full satisfaction for her support and maintenance, and all alimony whatever. And the said trustee, in con- sideration of the sum of one dollar to him duly paid, does covenant and agree to and with the said party of the first part, to indemnify and bear him harmless of and from all debts of his said wife, contracted, or that may hereafter be contracted by her, or on her account; and if the said party of the first part shull be compelled to pay any such debt or debts, the said trustee hereby agrees to repay the same, on demand, to the said party of the first part, with all damage and loss that he may sustain thereby. In witness whereof, the said parties have hereunto affixed their names and seals, this day of , one thousand eight hundred and [Signatures and seals.] CHAPTEE XLVI. IMPRISONED DEBTORS. The following forms relate to the proceedings given by statute(a) to effect assignments of the estates of imprisoned debtors, for the benefit of their cred- itors, or procure the discharge of a person committed for non-payment of a fine which he is unable to pay. The forms appropriate to assignments by insolvent debtors for the purpose of effecting their discharge, are given in the chapter on Insolvency. I. Proceedings by creditors to compel assignments by debtors imprisoned in CIVIL CASES. PAGK 930. Petition by a creditor . 467 981. Affidavit to be annexed 467 932. Order for creditors to appear ' 467 938. Notice to be annexed 468 934. Affidavit by creditor who uniu-s in the petition 468 935. Order that an assignment be made 468 (o) 2 fir. Stat, of N. T., 15-37. IMPRISONED DEBTORS. 467 Petition by Creditor for Assignment. It. Voluntary assignments by debtors imprisoned in civil oabes. 936. Petition by n debtor 469 937. Affidavit to be indorsed. 469 938. Order to bring the prisoner into court 469 939. Order that assignment bo made , 470 940. Assignment 470 941. Discharge 47C [11. Debtors confined for crimes. 942. Affidavit on applying for appointment of trustees of estate 471 943. Appointment of trustees 471 944. Application of a person committed for non-payment of a fine 471 L Proceedings by Ckeditoes to Compel Assignments by Debtors Im- prisoned m Civil Cases. 930. Petition by a Creditor of a Debtor Imprisoned on Execution. To.M. N., Judge of The petition of A. B., of , shows that he is a creditor of C. D., of , a debtor who has been actually imprisoned for more than sixty days in the county jail in the city of , upon an execution in civil action, and that your .petitioner is apprehensive that the estate of the said debtor will be wasted or embezzled. Wherefore, your petitioner prays that an order be made requiring the creditors of said debtor to appear before you, at a time and place to be specified, and determine whether they will unite in a petition for an assign- ment of the said debtor's estate. [Date.] [Signature.] 931. Affidavit of Creditor to Be Annexed to the Foregoing. County op , ss. A. B., of , being duly sworn, sayB : I. That C. D , mentioned in the annexed petition, is justly indebted to this deponent in the sum of dollars, now due, and for which a suit might be now brought. II. The said debtor is imprisoned in the county jail, in the county of , and has been so imprisoned for more than sixty days under an execution against him in some civil action ; and that this deponent is ap- prehensive that the estate of the said debtor will be wasted or embezzled. Swokn [etc., as in Form 858]. [Signature.] 932. Order for Creditors to Appear. Before M. N\, Judge of [n the Matter of the Petition of A. B., respecting the estate of a debtor imprisoned on execution. On reading the petition and affidavit of A. B., dated the day of Ordered, that the creditors of C. D., a debtor, now imprisoned in 468 ABBOTTS' FORMS. Discharge of Imprisoned Debtors. appear before me, on the day of , T8 , at , to determine whether they will unite in a petition for an assignment of such debtor's estate. [Date.] [Signature and title of judge!] 933. Notice to Creditors, to he Annexed to the Foregoing Order. Take notice, that above [or, within] is a copy of an order this day made by Hon. M. N., county judge. [Date.] [Signature of petitioning creditor or Tiis attorney!] 934. Affidavit by Creditor Who Unites in the Petition. County of , ss. E. F., of , being duly sworn, says : I. That C. D., of said city, is a debtor who has been actually impris- oned for more than sixty days in the county jail, upon execution ■ in some civil action ; and that deponent is apprehensive that the estate ol such debtor will be wasted or embezzled. II. That he is justly indebted to this deponent in the sum of dollars, now due, and upon which an action might now be brought. III.' That the sum of dollars above specified was due from the said debtor, at the time of granting the order for publication of notice to cred- itors to appear and determine whether they would unite in a petition for an assignment of the said debtor's estate. [Date.] [Signature.] 935. Order That an Assignment be Made. "Whereas it appears to me that the creditors of 0. D., residing within the United States having debts due to them, amounting to two-thirds of all the debts owing by said 0. D., a debtor, who is imprisoned in the county jail, and has been so imprisoned for more than sixty days under an execu- tion against him in a civil action, which creditors reside within the United States, have petitioned in the manner directed by the statute concerning "Proceedings by creditors, to compel assignments by debtors imprisoned on execution in civil cases," for an assignment of the estate of said 0. D., and no good cause to the contrary appears, I hereby order and direct the said D., on or before the day of instant [or, forthwith] to de- liver an account of his creditors and an invertory of his estate to me, upon oath, and to execute an assignment of his estate, or that he show cause why an assignment should not be made by me. [Signature of] Judge. [Date.] IMPRISONED DEBTORS. 469 Voluntary Assignments. II. VoiXNTABY ASSIGNMENTS BY DkBTOES IMPRISONED IN ClVIL OASES. 936. Petition by a Debtor in Prison in a Civil Case, for Discharge on Making an Assignment.(b) To the Court: The i'Ktitiok' of A. B., of , respectfully shows, that your petitioner is imprisoned in the county jail of the oounty of , in execution at the suit of , issuing out of the Court of the State of , for the sum of and interest thereon from , [and if the amount due is $500 or upwards, add, and has been so imprisoned for three months]. AYhkkefobe, your petitioner prays for an order directing the sheriff of said county to bring your petitioner into court, at a time to be appointed for that purpose, and that the judgment creditor in the suit aforesaid may show cause why an assignment of all the said petitioner's estate should not be made, and your petitioner be thereupon discharged from his imprisonment in the said suit, in pursuance of the provisions of the statute concerning '-' Voluntary assignments by a debtor imprisoned in execution in civil causes." And your petitioner, in conformity to the directions of the said statute, states that the following is a just and true account of all his estate, real and personal, in law and equity, and of all charges affecting the same, both as such estate and charges existed at the time of his imprisonment, and as they exist at the time of presenting this petition [state the real estate, and if subject to encumbrance, designate it, and give amount due thereon, and also specify the personal estate]. [Date.] [Signature.] 937. Affidavit to be Indorsed on the Foregoing Petitionee) COUNTY OF , SS. I, the within-named petitioner, do swear [or, affirm] that the within pe- tition and account of my estate and of the charges thereon, are in all re- spects just and true ; and that I have not, at any time or in any manner, disposed of or made over, any part of my property, with a view to the fu- ture benefit of myself or my family, or with an intent to injure or defraud any of my creditors. Sworn [etc., as in Form 858]. [Signature!] 938. Order to Bring the Prisoner Into Court. [Title of cause.] At a special term [etc.] On beading and filing the petition of A. B., dated , and proof of the due service of a notice of presenting said petition to this court, and a (6) This petition must be first presented (c) All the facts to entitle the applicant to the court at a regular special term. It to a discharge must be sworn to in the cannot be heard at Chambers, nor in the petition ; and the affidavit must be sworn first instance at general term. Matter of to at the time of presenting the petition. Walber v 2 Duer, 655; Mather's Case, 14 Bowne v. Bradley, 5 Abbotts' fk, 141. Abbotts Pr., 45. 470 ABBOTTS' FORMS. Assignments by Imprisoned Debtors. true copy of t"he inventory of his estate, as set forth and stated in such pe- tition, according to the directions of the said statute, and on motion of ,. of counsel for said petitioner, oedeeed, that the sheriff of the county of hring up the said prisoner before this court on the day of 38 , at o'clock in the noon of that day. [Signature of] Clerk. 939. Order That Assignment Be Made. [Title of the cause.} At a special term [etc.'] The above-named defendant having been brought before this court pur- suant to the order of the court, and the court having heard and examined the allegations and proofs of the said parties, and being satisfied that the petition and account of the petitioner are correct, and that his proceedings herein are just and fair, and on motion of , for the said prisoner, OEDBHKD, that the estate of the said prisoner, contained in the account stated and set forth in his petition [or specify so much of it as may be suf- ficient to sutify the debt wherewith the prisoner stands charged, together with the jail fees thereon], but his arms and accoutrements, and necessary wearing apparel and bedding, and the tools and instruments of his trade, and team, not exceeding $150 in value in the whole, excepted, be assigned to , for the benefit of the creditors above named. [Signature of] Clerk. 940. Assignment by Imprisoned Debtor. Know all men by these presents, that I, A. B., of , the prisoner named in the foregoing petition, in consideration of the premises therein contained, and in pursuance of the statute, have assigned, transferred and set over, and by these presents do assign, transfer and set over unto , all the estate, real and personal, in law and equity, contained in the ac- count within set forth and stated, my arms and accoutrements, and neces- sary wearing apparel and bedding, and tools or instruments of my trade and team, and other articles exempt from execution excepted [or specify the part directed to be assigned], and to his assigns, to have and to hold the same for the benefit of the creditors, and to satisfy the debt, in said petition men- tioned, wherewith I, the said prisoner, stand charged in execution, together with jail fees as aforesaid. Signed, sealed and delivered ) [Signature and seal.] in presence of j [Signatures of witnesses!] 941. Discharge. [Title of the cause!] At a special term [etc.] Whereas an assignment of all the estate, real and personal, in law and equity, contained in the account of the above-named defendant as set forth in his petition addressed and presented to this court, stating the cause of his imprisonment by virtue of an execution issued out of this court, at the suit of the above-named plaintiff, and praying to be discharged from his impris- IMPRISONED DEBTORS. 471 Discharges. onment in the above aotion, according to the directions of the statute " O* voluntary assignments by a debtor imprisoned in execution in civil canses," has been made by said defendant pursuant to an order of this court ; now, on motion of , for the defendant, ordered, that the said defendant be discharged out of custody of the sheriff of the county of , at the suit of the plaintiff in the above cause. [Signature of] Clerk. III. Debtors Confixed for Crimes. 942. Affidavit on Applying for Appointment of Trustees of Estate of Debtor Confined for Crime. State of , ) County of . J A. B., of said county, being duly sworn, says that Y. Z., the person named in the annexed copy of sentence of conviction, is now actually imprisoned in the at , in this State, in pursuance of the said sentence of conviction; and that the said Y. Z. is indebted to in the sum of dollars [xtating the ground of indebtedness], and deponent therefore applies for the appointment of trustees of the estate of the said Y. Z., according to the statute. [Signature.] Swoen [etc., as in Form 858]. 943. Appointment of Trustees on the Foregoing Application. Before the Hon. M. N., one of the justices of the Court of the State of Whereas, A. B., a creditor [or relative] of C. D., a debtor confined in for crime, on the day of , applied to me for the appoint- ment of trustees to take charge of the estate of the said C. D. ; and pro- duced a copy of the sentence of couviction of the said 0. D., duly certified by 0. P., clerk of the court of , under his seal of office, by which said court the said sentence of conviction was passed ; together with an affidavit of the said A. B., that the said 0. D. is actually imprisoned under the said sentence ; and that he is indebted to , in the sum of dollars : Now, therefc irk, I do, pursuant to the statute concerning "Attachments against debtors confined for crimes,'' appoint and , two fit per- sons, to be trustees of the estate of the said C. D., with such powers con- cerning his estate as are conferred by the said statute. Given under my hand and seal at , this day of , 18 . [Signature and seal.] 944. Application of a Prisoner Committed for Non-Payment of Fine for a Misdemeanor. To the County Court of County. The petition of A. B. shows : 1. That he is now and has been for forty-five days last past, a prisoner in the jail in said county, under a sentence passed by the Court of . held 472 ABBOTTS' FORMS. Keturns of Income. in and for said county on the day of , 18 , for a misdemeanor— namely [here state the crime], and by which sentence he was fined a sum not exceeding $250— to wit, dollars for his offence, and committed till the same should be paid. II. That he was unable at the time such sentence was passed, and has been unable ever since his said conviction, to pay such fine. Whekefoke, your petitioner prays that he may be discharged from his said imprisonment, pursuant to the statute. [Date, signature and verification.] CHAPTBE XLVII. INCOME TAX. By the act of June 30, 1864, as amended by the first section of the act of March 2, 1867, (a) it is made the duty of any person liable to annual tax, on i.r before the first day of March in each year, to make a return to the assistant assessor of the district wherein he resides, of his income, and of the articles in Schedule A owned or kept by him on the first day of March. Every person failing to make such return by the day specified will be liable to be assessed by the assistant assessor according to the best information which he can obtain; and in such case the assistant assessor will add fifty per cent, to the amount of the tax, and from the valuation and enumeration so made there can be no appeal. In case any person shall deliver to an assessor any false or fraudulent list or statement, with intent to defeat or evade the valuation or enumeration required by law, the assistant assessor will add one hundred per cent, to the tax. .Guardians, trustees, executors and administrators, and persons acting in any other fiduciary capacity, are required to make returns of the income belonging to minors or other persons for whom they act, and the income tax will be assessed upon the amount returned, after deducting such , sums as are exempted by law ; provided that the exemption of one thousand dollars shall not be "allowed on ac- count of any minor or other beneficiary of a trust, except upon the statement of the guardian or trustee, made under oath, that the minor or beneficiary has no other income from which the said amount may be exempted and deducted. . When coupons of United States bonds, or gold received as interest on bonds, are sold within the year, the amount of legal tender currency received therefor should be returned as income under paragraph 9. When any person has gold, or coupons payable in gold, on hand at the close of the year, its value should be returned at the value of gold at the close of the year. Trustees, guardians, executors, etc., should make a separate return for each estate represented by them, and a separate return of their own private estate. Where any articles named in Schedule A are owned, possessed, or kept by a partnership, firm, association, or corporation, they must be returned to the assistant assessor of the district in which such partnership, firm, association, or corporation has its office or principal place of business. When such articles are held by an individual, the return will be made in the district iu which he or she resides. (a) 13 U. S. Stat, at L., 225, 479, 480. INCOME TAX 473 Return. 945. Beturn of Income. Detailed Statement of Income, Gains, and Profits of A. E., of , county of , and State of , during the year 18 , and of Carriages, 2 Rev. Stat., 52. 476 • ABBOTTS' FOKMS. Insane Persons. and habitual drunkards, as well as those which are used in commitment of the insane to the public asylums, or poorhouses. I. INQUISITION AND APPOINTMENT OF COMMITTEE. PAGE 946. Petition for a commission of inquiry 476 947. Order that a commission issue 477 948. Commission of inquiry as to luDacy, idiocy or habitual drunkenness. 477 949. Frecept requiring the sheriff to summon a jury 47S 950. Notice to lunatic, idiot or habitual drnukard of executing com- mission 478 951. "Warrant to produce the alleged insane person 479 952. Subpoena to testify before commissioners 479 953. Inquisition of lunacy, idiocy or habituul drunkenness 479 954. Return of the commission to be indorsed thereon 480 95"). Order confirming the inquisition, and appointing committee 480 956. Bond of committee 480 957. Approval of bond by the judge ; 481 958. Commission to the committee of an insane person 481 II. Custody of indigent lunatics. 959. Information of lunatic before justices of the peace 482 960. Warrant to confine a lunatic 482 961. Warrant to bring lunatic, before magistrate 48; 962. Order sending lunatic to the asylum 483 963. Petition to county judge for examination 483 964. Affidavit of physicians 483 965. Subpoena to examine in regard to lunacy 483 966. Certificate of county judge 484 I. Inquisition and Appointment of Committee. 946. Petition for a Commission Supreme Court. In the matter of A. B., a supposed lunatic [or, idiot, or, habitual drunkard]. To the Supreme Court of the State of The petition of A. B., of , in the county of , respectfully shows : That C. B., a resident of , and [here state occupation, age, relaiion to the petitioner, etc., etc.] is now an idiot [or, is now and for past has been a lunatic and of unsound mind ; or, is now and for past has been an habitual drunkard], and is incapable of conducting bis own affairs in consequence thereof, as more fully appears by the affidavit hereto annexed. (J) (b) Subjoin affidavits, etc., showing the income, etc., and setting forth some evi- facts in detail, ii. forming the court as to deuces of tlu incapacity alleged, and the the family and relatives of the person and opinion of a p ysiciau. specifying the property, its value, annual INSANE PERSONS. 477 Commission of Inquiry. "Whekefobk, your petitioner prays that a commission, in the nature of a writ de lunatioo inquirendo may issue, to inquire of the alleged lunaoy [or otherwise] of the said 0. B. [Signature.] [ Verification as in Form .] 947. Order That a Commission Issue. [Title as above.] At a special term [etc.] On beading and filing the petition of A. B., of , dated the day of , 18 , and the affidavits thereto annexed, and on motion of for the petitioner, ordehed, that a commission in the nature of a writ de lunatico inquirendo he issued out of this court, under its seal and in the usual form, directed to [names of commissioners], of , to inquire, hy a jury of said county and of the neighborhood where the said 0. B., men- tioned in said petition, resides, of the lunacy [or. idiocy; or, incapacity by habitual drunkenness] of the said 0. B. ; and that in the said commission b6 inserted a command to the sheriff of the said county of , requiring hiin to summon such jury. And it is further ordered, that the said com- mission be executed at , and that days' previous notice of the time and place of such execution he given to the said 0. B., and to the person or persons having the charge of and care of him. And it is further ordered, that upon the execution of the said commission, the person or persons having the charge and custody of the said 0. I!., do produce him before the said commissioners and jury, to be inspected and examined hy them, whenever required so to do by said commissioners. [Signature of] Clerk. 948. Commission of Inquiry as to Lunacy, Idiocy or Habitual Drunkenness. The People of the State of to [here name the commissioners], of , greeting: Know te, that we have assigned to you, or any two or more of you, to inquire, by the oaths of good and lawful men of our county of , hy whom the truth of the matter may be the better known, whether 0. B., of , is a lunatic [or, an idiot], so that he is not sufficient for the government of himself, or the management of his property, or condnct of his affairs [or, is incapable of conducting his own affairs in consequence of habitual drunkenness]; and if so, from what time, after what manner, and how he became so, and if the said 0. B., being in that condition, has alienated any lands and tenements, or not ; and if so, what lands and tene- ments, to what person or persons, when, where, after what manner and how, and what lands and tenements, goods and chattels as yet remain to him ; and of what value the lands and tenements by him alienated, as well as those by him retained are, and how much the issues and profits thereof are by the year, and what is the value of his goods, chattels and personal estate, and who are the nearer heirs and next of kin of the said 0. B., who will be entitled to his estate in case of his death ; and of what age he is. 478 ABBOTTS' FORMS. Inquest Concerning Insanity, etc. And therefore we command you, or any two or more of you, that at certain days and places, which you shall for that purpose appoint you diligently' make inquisition in the premises ; and that you cause reasonable notice of the time and place by you appointed for that purpose, to be given to the said B., and that you send the inquisition which you shall thereupon cause to be made, under your seals, or the seals of any two or more of you, and the seals of those persons by whom it shall be made, distinctly and plainly, and without delay, to our Supreme Court, together with this writ. And we command the sheriff of the county of , that at certain days and places which you shall make known to him, he cause to come before you, or any two or more of you, so many, and such good and lawful men of your county as you shall direct, by whom the truth of the matters afore- said may be the better known and inquired into. Witness, M. N., one of the justices of our Supreme Court, at , the day of , one thousand eight hundred and [Seal.] [Signature of] Olerk. [Signature of] Attorney. [Indorsed] " By the court." [Signature of] Clerk. 949. Precept Requiring the Sheriff to Summon a Jury. By virtue of a commission in the nature of a writ de lunatico inquirendo, issued out of and under the seal of the Supreme Court of the State of , dated the day of , to the undersigned, directed to inquire if C. B., of , be a lunatic [or otherwise], you are hereby required * to cause to come and appear before us twenty-four honest and lawful men of the county aforesaid, and of the neighborhood where the said O. B. resides, on the day of , 18 , by o'clock in the noon of the same day, at the in the City Hall in said city, then and there upon their oaths to inquire of the lunacy [or other incapacity] of the said C. B. ; and of all such matters and things as shall be given them in charge by virtue of said commission ; and hereof fail not at your peril. Given under our hands and seals, the day of , one thousand eight hundred and . [Signatures and seals of commissioners.] To the sheriff of the county of 950. Notice to Lunatic, Idiot or Habitual Drunkard, of Executing Com- mission. [Title.] Please take notice, that a commission to inquire as to your alleged lunacy [or other incapacity], issued out of and under the seal of the Supreme Court, and direct 3d to us as coinn issioners, will be executed at , in , ot. the instant, at )'clock in the noon. [Date. j [Signatures of ] Commissioner'. [Address.] INSANE I ERSONS. 479 Inquisition. 951. Warrant to Produce the Person of the Alleged Insane Person. [As in Form 949 to the *, continuing thus :] to produce the said 0. B. before us, at the execution of the said commission, at , in , on the instant, at o'clock in the noon, there to he examined touching the matters aforesaid ; and you are to give him notice accordingly ; as also to any other person or persons who are guardians of him, or trus- tees of his estate, that they may appear in his behalf if they shall think fit. Given under our hands and seals, this day of , 18 . [Signatures and seals of] Commissioners. To M. N., or such other person or persons as now have the said 0. B. in their custody. 952. Subpmna to Testify Before Commissioners. [As in Form 949 to the *, continuing thus :] to personally be and appear before us at the execution of the said commission, at , in said city, on the day of , 18 , at o'clock in the noon, upon oath to testify touching the lunacy [or other incapacity'] of the, said 0. B., and of all such matters as shall be demanded of you by virtue of the said com- mission ; and thereof fail not at your peril. Given under our hands and seals, the day of , 18 . [Address to witnesses.'] [Signatures and seals of] Commissioners. 953. Inquisition of Lunacy, Idiocy or Habitual Drunkenness. An inquisition taken at , in the city of , on the day of , 18 , hefore [here name the acting commusionern], commissioners appointed by virtue of a commission in the nature of a writ de hinatieo in- quirendo, issued out of, and under the seal of the Supreme Court of the State of , dated , directed to and commanding them the said commissioners, to inquire, among other things, of the lunacy [or other in- capacity] of C. B., of . [Here insert names of jurors], good and lawful men of the said county, who being summoned, sworn and charged, upon their oath say that the said C. B., at the time of making this inquisition, is a lunatic, and of unsound mind, and does not enjoy lucid intervals [or, is an idiot], so that he is incapable of the government of himself, or of the man- agement of his lands, tenements, goods and chattels ; and that he has been in the same state of lunacy for the space of last past, and upwards [and here state how he became such], [or, of idiocy from his birth]. [Here state ar.y transfers of property, and any contracts, which it is found the insane person has made while under such incapacity ; also what property he has, etc., his heirs, etc., according to the requirement of the commission.] In testimony whereof, as well the said commissioners as the jurors afore- said, have set their bands and seals to this inquisition, the day and year first above written. [Names and seals of commissioners and of jurors.] 480 ABBOTTS' FOKMS. Committee of Lunatic. 954. Return of the Commission to be Indorsed Thereon. To the Supreme Court: The execution of this commission appears in the schedules hereunto annexed. [Signatures of] Commissioners. [Date.] [Annex the proceedings, marked as schedules.] 955. Order Confirming the Inquisition and Appointing Committee.(c) [Title as in Form 946.] At a special term [etc.] On beading and filing the inquisition in this matter, dated the day of , 18 , and on motion of , of counsel for the petitioner, and after hearing , of counsel [or, and no one appearing] in opposition thereto ; oedeeed, that the finding of the jury, upon the execution of the said commission as set forth in the said inquisition, be, and the same is hereby confirmed ; and that [names of committee] be, and they are hereby appointed, the committee of the person and estate of the said C. B., upon their giving a bond with two sufficient sureties, to be approved by one of the justices of this court, in the penalty of dollars [doulile the value of the property as found by the inquisition] conditioned for the faithful per- formance of their trust, according to the statute, and to account whenever required, in conformity with the rules and practice of this court. And it is further ordered, that upon filing such bond, a commission may be issued to such committee, under the seal of this court. 956. Bond of Committee. [Penal clause as in other cases, running to the People of the State. See Form 443.] "Whkkeas, by an order of the Supreme Court of the said State, made this day of , 18 , the above-bounden [names of committee] were ap- pointed a committee of the person and estate of 0. B., who, by an inquisi- tion taken under a commission issued out of said court, had previously thereto been found to be a lunatic [or state other incapacity], upon their giving the bond required by the said order : Now, thekefore, the condition of this obligation is such, that if the above-bounden [names of committee] shall faithfully perform the trust reposed in them as such committee, ac- cording to the statute, and shall render an account whenever required, in conformity with the rules and practice of the said court, and shall observe the orders and directions of the said court in relation fr> such trust, then this obligation to be void ; otherwise, to be and remain in full force and virtue. [Signatures and seals.] In presence of [Signature of witness.] [Add acknowledgment, and affidavit of sureties, as in Forms792 and 793.] (c) To be moved for on notice, as in otlier cases of motions iu court. INSANE PERSONS. 481 CommiftKiori. 957. Approval of Bond by the Judge. * approve of the within bond, as to its form and manner of execution. [Date.'] {Signature.'] 958. Commission to the Committee of An Insane Person. The People of the State of New York, to all to whom these presents shall come, greeting: Whereas, by an inquisition taken at , in the city of , on the day of , 18 , by virtue of our commission, in the nature of a writ de lunatico inquirendo, in that behalf duly made and issued, it was found, among other things, that the said 0. B., at the time of taking the said inquisition, was a lunatic, not having lucid intervals [or state other in- capacity], so that he was incapable of the government of himself, or of the management of his lands, tenements, goods and chattels, and of the conduct of his affairs, as by the said inquisition remaining of record in our Supreme Court may more fully appear; for the care and custody of whom, and for the management of whose estate, it belongs to ns, in our Supreme Court, to provide. And whereas sufficient security is given to us on behalf of the snid C. B. by [here name committee] : Now, tukbefohe, know ye, that we have given, granted and committed, and by these presents do give, grant and commit, unto the said'frcame committee] the care and custody of the person, and the possession, care and management of the estate, as well real as per- sonal, of the said C. B. until otherwise ordered by the court. And the said [naming committee] are hereby required, within six months from the date of these presents, to return and file in the office of the clerk of the county of , a just and true inventory, under oath, of the whole real and per- sonal estate of the said C. B., stating the income and profits thereof, and the debts, credits and effects of the said C. B., so far as the same shall have come to the knowledge of the said committee, or either of them, and that out of the said estate, or the rents, issues and profits thereof, they provide for the maintenance, sustenance and support of the said C. B. and his fam- ily; and that annually thereafter the said committee file in the office of the said clerk a similar inventory, and an account, under oath, of the manage- ment of the said trust, and of all other property or effects belonging to the said estate, which they shall have since discovered, as required by the statutes and the rules of this court. And the said committee are, and each of them is, further required to abide and obey all and every such order or orders in the premises as may hereafter be made in our said court, and to render a full and just account of the execution of the said trust, and of the estate, property and effects which shall have come to their hands, or the hands of either of them, when and as often as required by our said court. "Witness [etc., as in Form 948], 31 482 ABBOTTS' FORMS. Lunatics. II. Custody of Indigent Lunatics. 959. Information of Lunatic Before Justices of the Peace. County of A. B., being duly sworn, says, that Y. Z., of said town, is so far disordered in his mind as to endanger his own person, or the person or property ot others if permitted to go at large, and that said Y. Z. is now permitted to go at large by his friends, and that no committee of his person has been appointed [or, that said Y. Z. has no property or parents or children] to the knowledge or belief of this deponent. Subscribed and sworn before us, ) [Signature.] this day of , 18 . ) [Signatures of two] Justices of the Peace. 960. Warrant to Confine a Lunatic. To the constables and overseers of the poor of the town [or, city] of , in the county of : Y. Z., a lunatic, having been found in said town, so far disordered in his mind as to endanger his own person, and the person or property of others, if permitted to go at large, and no provision having been made, either by the relatives or any committee, for confining or maintaining such lunatic, the undersigned, two of the justices of the peace of said town [or, city], on the application of the overseers of the poor of said town [or, upon our own view], being satisfied upon examination [or, upon information on oath to us given], that the said Y. Z. should be forthwith confined; you are, therefore, hereby commanded to cause the said lunatic to be safely locked up in such secure place as said overseers may provide, in conformity to law. Given, under our hands, at , this day of , 18 . [Signatures of two] Justices. 961. Warrant to Bring Lunatic Before Magistrate. To any constable of the town [or, city] of , in the county of Application having been made to the undersigned, two of the justices of the peace of the said town [or, the county judge of said county], by A. B. [or, by the overseers of the poor of said town] alleging that Y. Z., an in- habitant of said town, is so far disordered in his mind as to endanger his own person, or the person or property of others, if suffered to go at large : Yon aee, thehefoee, commanded, in the name of the People of the State oi , to apprehend the said Y. Z. and bring him before us forthwith, at , in said , that we [or, I] may examine in regard to the said Y. Z , and make sue furl, er order in the premises as maybe proper. [Signature and title.] INSANE PERSONS. 483 Custody of Indigent Lunatics. 962. Order Sending Lunatic- to the Asylum. OoUNTY OF , SS. "We, the undersigned, county superintendents of the poor of the county of , hereby order that Y. Z., a lunatic, who is chargeable to the [town of , in] said county, be sent to the lunatic asylum in the city of , the expense of which support at the asylum is to be paid by the treasurer ol said county of Given under our hands, at , this day of , 18 . [Signatures of the] Superintendents of the Poor. 963. Petition to County Judge for Examination. To the Hon. M. N., county judge of the county of : The petition of A. B., of the town of , in said county, respectfully shows, that T. Z., a resident of said town, is a lunatic, and is now in the care and custody of , of said town [or, is wandering about in such manner as to endanger his own person, or the person and property of other persons], that he is in indigent circumstances, and has no property either in his own possession, or held by any person in trust lor him, sufficient for the support of himself [and his family] in the condition of insanity aforesaid. Wherefore, your petitioner prays that an examination of the case may be had according to the statute. [Signature.] [Date.] [Add verification, as in Form 836.] 964. Affidavit of Physicians. (JOUNTT OF , SS. M. N. and O. P., physicians of the town of , being severally sworn, each for himself, says, that he has carefully examined into the mental state and condition of Y. Z., particularly in reference to his alleged lunacy or in sanity, and that in bis opinion, derived from such examination, the said Y. Z. is a confirmed lunatic, and that his going at large would endanger his own person and the person and property of others. [Signatures.] Sworn [etc., as in Form 965. Subpana to Examine in Regard to Lunacy. State of , ss. [Address to witnesses.] In the name of the People of the State of , you are hereby com- manded to appear before the undersigned, at in the city of , immediately [or, on the day of , 18 , at o'clock in the noon], to give evidence touching the mental condition and the circum- stances of Y. Z., of ; and hereof fail not at your peril. Witness my hand, at , this day of , 18 . [Signature and title of county judge.] 484 ABBOTTS' FORMS. Insolvency. 966. Certificate of County Judge. In the matter of Y. Z., an alleged indigent lunatic. County of , ss. Application having been made to me by A. B. [or, by the overseers of the poor] of the town of _ , for an examination in regard to the mental state and alleged indigence of Y. Z , of said town ; I thereupon directed [naming them] two reputable physicians of said town to examine the said Y. Z. in regard to his mental condition ; and they having made snch ex animation, and having certified to me that the said Y. Z. is a confirmed lima tic, and that his going at large would endanger his own person and the per sou and property of others ; and having received proof that he is in indi gent circumstances : I hkeebt oehtift that it satisfactorily appears to me, from said evidence and proof, that the paid Y. Z. is a lunatic, and that ha has not sufficient estate of any kind for the support of himself [and hia family] in his aforesaid state and condition. Witness 'etc., as in preceding form]. CHArTEE XLIX. INSOLVENCY. Under the statutes of New York, an insolvent debtor may in certain cases ob- tain a discharge from his debts, upon executing an assignment of all his estate for the benefit of his creditors. The petition for that purpose must be signed by the debtor and by so many of his creditors residing in the United States as have debts [owing to them in good faith by such debtor], either due or to become due, and amounting to at least two-thirds of all the debts owing by him to creditors residing within the United States. Executors and adminis- trators may become petitioning creditors by obtaining leave of the surrogate, themselves then becoming liable only for such portion as they receive. Trus- tees, receivers and assignees of the estate of any creditor of an insolvent may also apply by leave" of the Supreme Court. Creditors of any copartnership firm or of any joint debtors may unite with any one or more of such firm or joint debtors for the discharge of such partner or joint debtor. Such petitions are to be presented to a j ustice of the Supreme Court, a county judge or the recorder of a city. The things necessary to give the officer jurisdiction, so as to make his pro- ceedings and his discharge conclusive, are as follows :(a) — 1. A petition signed by the debtor and two-thirds in amount of his creditors residing within the United States. 2. The affidavits of the petitioning creditors, taken before an officer authorized to take affidavits to be read in courts of record, to the (a) Basher v. Sherman, 28 Barb., 416. INSOLVENCY. 485 Petition. amount, nature and consideration of the debt, and that the creditor has re- ceived nothing to become a petitioner. 3. A full and true account of creditors, the amounts due, the consideration, a statement of any security, and a full in- ventory. 4. An affidavit by the petitioner, before the officer to whom the pe- tition is made,(o) of the correctness of his petition, etc. 5. Proof of residence within the county where the officer resides. PAGH 967. Petition for discharge 485 968. Affidavit to the insolvent's residence 486 969. Affidavit of a petitioning creditor 486 970. The same; by a copartner 486 971. Affidavit of residence of the creditors 487 972. Schedule of insolvent's debts 487 973. Inventory of assets 847 974. Affidavit of the insolvent to his proceedings 488 975. Order requiring creditors to show cause 488 976. Notice for publication 489 977. Affidavit of publication 489 978. Notice for service on creditors 489 979. Affidavit of service 490 980. Order directing assignment to be made 490 981. Assignment by insolvent 490 982. Certificate that it lias been made 491 983. Discharge 491 984. Oath of assignee 492 985. Notice to creditors, etc 492 986. Petition after action commenced, or pending proceedings under non-impris- meut act 498 967. Petition for Discharge.fc) To Hon. M. N., county judge in and for the county of : The petition of A. B., of the city of , county of , an insolvent debtor, now actually an inhabitant of the said city, and so many of his creditors, residing within the United States, as hare debts in good faith owing to them by the said insolvent, amounting to at least two-thirds of all the debts owing by him to creditors residing within the United States, prays that the estate of the said insolvent may be assigned unto [here name the] assignee nominated by the said creditors to receive the same for the benefit of his creditors ; and further, that the said insolvent may be discharged from his debts, according to the provisions of the statute for the discharge of an insolvent from his debts. [Signature of insolvent.] [Date.] [Add signatures of petitioning creditors, with the sums due them set oppo- site their names.(d)] (b) It is indispensable that the affidavit charge was void. Small v. Wheaton, 2 required to be made by the petitioner, AbboM Pr., 175 ; S. C, 4 E. D. Smith, and annexed to his petition, Bhould be 306. sworn to before the cfficer to whom the (c) This and the following sixteen forms petition is presented. Where it appeared are sustained by Soule v. Chase, 19 Ab- that the affidavit was sworn before a com- bottt Fr., missioner of d«"ids, Held, that the dis- (<. If any one holds amcrtgage, judg- 486 ABBOTTS' FORMS. Insolvency. 968. Affidavit to the Insolvent's Pesidence.(e') OoUNTY OF , SS. I, 0. P., do swear that A. B., in the annexed petition named, is an in- habitant actually residing within the city of , county of Swoest before me, this day ) [Signature.] of , 18 . f {Signature of] County Judge. 969. Affidavit of a Petitioning Creditor. County op , ss. C. D., of , one of the petitioning creditors of A. B., an insolvent debtor, being duly sworn, says, that the sum of dollars, lawful money of the United States, being the sum annexed to the name of this deponent, subscribed to the petition, is justly due to him from the said insolvent for goods, wares and merchandise, sold and delivered [or,, for cash lent and ad- vanced] by deponent to said A. B. [and if any security has been taJcen there- for, specify it — e. g., thus:] secured by the note of A. B., dated the day of , 18 , and due after date [or, by note of . dated, etc., etc., and indorsed by said A. B.] ; and that neither he, nor any person to his use, has received from the said insolvent, or any other person, payment of any demand, or any part thereof, in money or in any way whatever, or any gift or reward whatsoever, upon any express or implied trust or con- fidence, that he should become a petitioner for the said insolvent. Swoen [etc., as in Form 858]. [Signature.] 970. Affidavit of a Partner, Where a Firm Unite in the Petition. County of , ss. C. D., of , a partner of the firm or copartnership of C. D. & Co., of , and who, as one of the copartners, and in their behalf, has sub- scribed to the petition the name or firm of their said copartnership, as pe- titioning creditors of A. B., an insolvent debtor, being duly sworn, says, that the sum of dollars, lawful money of the United States, being the sum annexed to the name of the said copartnership subscribed to the peti- tion, is justly due to them from the said insolvent, for [here state the debt, and security, if any, as in preceding form, continuing :] and that neither he, nor any member of said firm, nor any person to his or their use, hath received from the said insolvent, or any other person, payment of any de- mand, or any part thereof, in money, or in any other way whatever, or any gift or reward whatsoever, upon any express or implied trust or confidence, ment or other security on the real or per- note the security] for the benefit of all the sonal property of the debtor, he must add creditors of such debtor." to his signature, " And I hereby relinquish («) This affidavit is commonly made by to the assignees who shall be appointed the assignee. pursuant to this petition tho [here desig- INSOLVENCY. 487 Insolvent's debts. Assets. that he or they should become a petitioner or petitioners for the said insol- vent. [Signature of the partner.] Swoen [etc., as in Form 855]. 971. Affidavit of Residence of the Creditors. Before the Hon. M. N., county judge of County. In the matter of the application of A. B., an insolvent debtor, together with his creditors, for a discharge from his debts. County of , ss. A. B., the above-named insolvent, being duly sworn, says that the places of residence of the creditors of this deponent residing in the United States, where such place is known to deponent, are as follows — that is to say : [Names of creditors.] [Places of residence.] Swoen [etc., as in Form 858]. [Signature.] 972. Schedule of Insolvent's Debts. A full and true account of all the creditors of A. B., an insolvent debtor, with the place of residence of each, the sum owing to each of them by the said insolvent, the nature of each debt, with the true cause and consideration thereof, and the place where the same accrued. CREDITORS. Smith &Co Taylor & Co.... John Kobinson. . John Cox Lucian Roberts. RESIDENCE. New York., Boston Philadelphia Montgomery Co. NATURE OF DEBT, AND THE TRUE CAUSE AND CON- SIDERATION THEREOF $269.42 402.84 5,699.19 425.00 583.82 Promissory notes for merchandise sold and delivered Promissory notes for merchandise sold and delivered and a book aocount Endorsement on promis- sory note for goods, wares and merchan- dise Book account for mer- chandise sold and de livered Judgment docketed Sep- tember 26, 1860, for cash loaned and ad- vanced ACCRUED AT New York. Boston . New York. u Montgomery Co. [Etc., setting forth all, and adding signature of insolvent.] 973. Inventory of Insolvent's Assets. A pult, and true inventory of all the estate, both real and personal, in law and equity, of A. B., of , an insolvent debtor, of the encum- 488 ABBOTTS' FORMS. Insolvency. brances existing thereon, and of all the books, vouchers and securities re- lating thereto, and the value of such estate. Real estate, none [or, if any, describe it; and specify other property thus :] Necessary wearing apparel, all of which is exempted by law from execu- tion. Book debts amounting to dollars, not collectable. Check of B. 0. on the Bank for dollars, due last , and protested for non-payment. , [Date.] [Signature of insolvent.] 974. Affidavit of the Insolvent to His Proceedings. I, A. B., do swear, that the account of my creditors, and the inventory of my estate, which are annexed to my petition and herewith delivered, are in all respects just and true; and that I have not, at any time or in any manner whatsoever, disposed of or made over any part of my estate, for the future benefit of myself or my family, or in order to defraud any of my creditors ; and that I have in no instance created or acknowledged a debt for a greater sum than I honestly and truly owed ; and that I have not paid, secured to be paid, or in any way compounded with any of my cred- itors, with a view fraudulently to obtain the prayer of my petition. Sworn to and subscribed in the ) [Signature.] presence of and before me, this day of 18 . [Signature of the judge.] 975. Order Requiring Creditors to Show Cause. It is heeebt oedkbed, that all the creditors of A. B., an insolvent debtor, be required to show cause, if any they have, before me, on the day of next, at o'clock in the noon, at , at the City Hall in the city of , why an assignment of the said insolvent's es- tate should not be made, and he be discharged from his debts, pursuant to the provisions of the statute for the discharge of an insolvent from his debts. Notice of which is to be published for ten weeks in the State paper, and in the newspaper printed in the city of , entitled the , and the newspaper printed in the city of , entitled the . And I hereby direct that notice of this order be served either in person or by letter, on each of the creditors of the said A. B., insolvent, residing in the United States, and whose place of residence is known to the said A. B., in- solvent. And the service of the notice of this order shall be made on each of the said creditor's, in person or by letter, addressed to him by mail, at his known and nsual place of residence. If such service shall he personal, then it shall be at least twenty days, and if by mail, then forty days, hefore the said , day of next. [Date.] [Signature of] County Judge, County. INSOLVENCY. 4S9 Publication of Notice. 976. Notice for Publication. Notice of application for the discharge of an insolvent from his debte, pursuant tc the provision of the 3d article of the 1st title of the 5th chapter of the 2d part of the Revised Statutes. A. B., of the city of , county of . Notice first published the day of , 18 . Creditors to appear before the Hon. M. N., county judge, in and for the county of , at his chambers, at the City Hall, city of , on the day of next, at o'clock in the noon. [Signature and address of the insolvent or his attorney.] 977. Affidavit of Publication. County of , ss. R. S., of , being duly sworn, says, that he is a clerk in the office of the , a daily paper printed and published in the city of , and that the notice, of which a printed copy is annexed, has been regularly published in the said , once a week for ten weeks suc- cessively, commencing on the day of , 18 . Swoen [etc., as in Form 958]. [Signature.] 978. Notice for Service on Creditors. Before the Hon. M. N., county judge of County. In the Matter of the application of A. B., an insolvent debtor, to- gether with his creditors, etc., pursuant to art. 3, chap. 5, title 1, part 2, of the Revised Statutes. J Please take notice, that on the day of , in the year one thou- sand eight hundred and , an order was granted by M. N., county judge, in and for the county of , on the petition of A. B., of , an insolvent debtor, and so many of his creditors, residing within the United States, whose debts amounted to at least two-thirds of all the debts owing by the said A. B. to creditors residing within the United States, requiring all the creditors of the said A. B. to show cause before said judge at his chambers, at the City Hall, city of , on the day of , 18 , at o'clock in the noon of that day, why an assignment of the es- tate of said A. B. should not be made, and he be discharged from his debts, pursuant to the provisions of the third article of the fifth chapter of the . first title of the w -ond part of the Revised Statutes. [Date.] [Signature and address of insolcent or his attorney.] 490 ABBOTTS' FORMS. Order for Assignment. 979. Affidavit of Service. County of , ss. G. H., of said city, being duly sworn, says, that Le served a notice a; writing, of which, the foregoing is a true copy, on each of the follow: ng named persons, on the days and in the manner next herein specified — that is to say : Day of Service. Names of Creditors. Manner of Service. June 29, 1866 Smith & Co Served personally. " 30, " "Williamstown Manufactming Co By mail. {Thus setting forth a list of all.'] And deponent further says, that the notices referred to above, as being sent by mail, were served on the said several parties, by being deposited in the post-office, in the city of , and paying the legal postage thereon, and by being addressed to the said several and respective parties at their usual and known places of residence, and the places of residence mentioned in the schedule in these proceedings. Swobn [etc., as in Form 858]. {Signature.] 980. Order Directing Assignment to Be Made. Whereas, A. B., an insolvent debtor, did, in conjunction with so many of his creditors, residing within the United States, as have debts in good faith owing to them by the said insolvent, amounting to at least two-thirds of all the debts owing by him to creditors residing within the United States, present a petition to me for the purpose of being discharged from his debts, pursuant to the provisions of the third article of the first title of the fifth chapter of the second part of the Revised Statutes ; upon hearing which it satisfactorily appeared to me that the said insolvent is justly and truly in- debted to the petitioning creditors in the sums by them respectively men- tioned in their affidavits annexed to the petition ; that such sums amount in the aggregate to two-thirds of all the debts owing by him, at the time of presenting his petition, to creditors residing within the United States, and that he has honestly and fairly given a true account of his estate, and has in all things conformed to the matters required of him by the said article. I do therefore direct that an assignment be made by the said insolvent to Y. Z., assignee, nominated by the said creditors, of all his estate, both in law and equity, in possession, reversion or remainder, excepting wearing apparel and bedding as is reasonable and necessary for the said insolvent and his family to retain, and also his arms and accoutrements. {Date.] {Signature of] County Judge of County. 981. Assignment by Insolvent. Know all men by these presents, that I, A. B., having become insolvent, did, in conjunction with so many of my creditors, residing within the United States, whose debts in good faith amount to two-thirds of all the INSOLVENCY. 491 Discharge. debts owing by me to creditors residing within the United States, present a petition to the Hon. M. N., county judge in and for the county of , praying for relief, pursuant to the provisions of the statute authorizing an insolvent debtor to be discharged from his debts; whereupon the said judge ordered notice to be given to all my creditors to show cause, if any they had, before him, at a certain day and place, why the prayer of the petitioner should not be granted ; which notice was duly published, and no good cause appearing to the contrary, he being satisfied that the proceed- ings were just and fair, and that I had in all things conformed to those matters required by the said statute, directed an assignment of all my es- tate to be made by me for the benefit of all my creditors : Now, therefore, know te, that in conformity to the said direction, I have granted, released, assigned and set over, and by these presents do grant, release, assign and set over unto Y. Z., assignee, nominated to receive the same, all my estate, real and personal, both in law and equity, in possession, reversion or remainder, and all hooks, vouchers and securi- ties relating thereto, to hold the same unto the said assignee to and for the use of all my creditors. In witness whereof, I have hereunto set my hand and seal, this day of , in the year one thousand eight hundred and Signed, sealed and delivered ) [Signature and seal.] in the presence of ) [Signatures of witnesses.} [Add acknowledgment or proof by subscribing witness, as in case of a deed . seepages 55, 59 and 60.] 982. Certificate That the Assignment Has Been Made. I, Y. Z., do hereby certify, that A. B., an insolvent debtor, has this day granted, conveyed, assigned and delivered to me for the use and benefit of all his creditors, all his estate, real and personal, both in law and equity, in possession, reversion or remainder, and all books, vouchers and securities relating to the same, except such articles of wearing apparel and bedding as are- reasonable and necessary for the said insolvent and his family to retain, and also his arms and accoutrements. In witness [etc., and acknowledgment or proof, as in form above]. 983. Discharge of Insolvent. To all to whom these presents shall come or may concern : I, M. N., county judge in and for the county of , send greeting Whereas, A. B., of the city of , an insolvent debtor, residing within the said city, did, in conjunction with so many of bis creditors, residing within the United States, as have debts in good faith owing to their by vne said insolvent, amounting to at least two thirds of all the debts owing by him to creditors residing within the United States, present a petition to me, 4:92 ABBOTTS' FORMS. Discharge in Insolvency. praying that the estate of the said insolvent might he assigned for the benefit of his creditors, and he he discharged from his debts, pursuant to the pro- vision of the statute authorizing an insolvent debtor to be discharged from his debts ; whereupon, I ordered notice to De given to all the creditors ot the said insolvent to show cause, if any they had, before me, at a certaiu time and place, why an assignment of the said insolvent's estate should not be made, and he be discharged from his debts, proof of the due publi- cation and due service whereof hath been duly made to me. And whereas it satisfactorily appears to me, that the doings on the part of the insolvent and the creditors are just and fair, and that the said insol- vent has conformed in all things to those matters required of him by the said statute, I directed an assignment to be made by the said insolvent, of all his estate, real and personal, both in law and equity, in possession, reversion, or remainder, to T. Z., assignee nominated by the creditors to receive the same, and the said insolvent having, on the day of ,18, made such assignment, and produced to me a certificate thereof, executed by the said assignee, and duly proved, and also a certificate of the clerk of this county, that such assignment is duly recorded in his office : Now, therefore, know ye, that by virtue of the power and authority in me vested, I do hereby discharge the said insolvent from all his debts and from imprisonment, pur- suant to the provisions of the said statute. In witness whereof, I have hereunto set my hand and seal, the day of , in the year of our Lord one thousand eight hundred and [Signature and seal of] County Judge, County^ 984. Oath of Assignee. County of , ss. I, Y. Z., having been appointed assignee of A. B., an insolvent debtor, do swear that I will well and truly execute the trust by that appointment reposed in me, according to the best of my skill and understanding. Sworn [etc., as in Form 858]. [Signature.] 985. Notice oy the Assignees to the Creditors, etc. Notice is hereby given, pursuant to the statute, that the undersigned has been appointed assignee of A. B., an insolvent debtor. All persons indebted to the said debtor are hereby required on or before the day of , 18 , to render an account of all moneys owing by them respectively, to the undersigned assignee, and to pay the same; and all persons having in their possession any property of such debtor, to deliver the same to the undersigned by said day ; and all creditors of such debtor to deliver the~ respective accourts and demands to the undersigned by said day. [Signature and address of assignee.] [Bate.] INSURANCE. 493 General Principles. 986. Petition After Action Commenced, or Pending Proceedings, Under Non-Imprisonment Act.(f) To the Hon. M. N., judge [etc., as the case may be]. The petition of A, B., of the town of , in the county of , respectfully shows : I. That an action has been commenced against him in a court of record, in which, by the provisions of the act to abolish imprisonment for debt, and to punish fraudulent debtors, he cannot be arrested or imprisoned [or state proceedings had under the statute]. . II. That the said action is brought by Q. R., in the Court of this State, and was commenced by summons, served upon the said petitioner on the day of , 18 . Whehefoek, your petitioner prays that his property may be assigned, and that he may have the benefit of the provisions of the said act. [Signature.] CHAPTEE L. INSURANCE. Companies for transacting the business of insurance are formed either by special charter, or by organization under general laws of the State in which they are formed, authorizing such companies to become incorporated. The statutes must be taken as the guide for this purpose ; but the general form of certificates for forming corporations under such laws will be seen on referring to the chapter on Manotactuiung Corporations. The forms of policies of insurance are settled and printed by the companies issuing them. The blanks ought to be so filled as to specify the parties, the rate of premium, the subject or thing issued, the risks insured against, the period during which the insurance is to continue ; and in general it is desirable that the interest of the insured should be specified. When the name of the person intended to be insured is specified in the policy, the insurance can apply only to his own proper interest. But the fact that the person named acts as agent or triiBtee, and that his principal or beneficiary is the real party in interest, is sufficiently shown by describing the person named as agent or as trustee, and it is not essential to name the principal or beneficiary. Where a partner or part owner is named, the terms of the policy should be such as are applicable to the joint interest, if it is desired to cover the interest of his co-tenants. Where the owner of property mortgaged effects insurance in his own name, providing that the loss, if any, is payable to the mortgagee, or assigns to him a policy with the insurers' assent, the insurance is still deemed to be upou the (/) The verification schedules and other the preliminary recitals, and declaring proceedings except notice will be similar the debtor merely " exonerated from being to the preceding forms, and the discharge proceeded against by any creditor entitled witf be in similar form, varying, however, to a dividend of his eBtate." 494 ■ ABBOTTS' FORMS. Insurance interest of the mortgagor, and any act of his which will render the policy void will have the same effect as against the mortgagee. Notices of Abandonment and Protests relating to marine losses form the subject of separate chapters. Fire policies usually contain a condition requiring in substance that persons sustaining loss or damage by fire shall forthwith give written notice thereof to the company, and as soon after as possible deliver as particular an account of their loss and damage as the nature of the case will admit, signed with their own hands ; and accompany the same with their oath or affirmation, declaring the account to be true and just ; showing, also, the ownership of the property insured ; what other insurance, if any, existed on the same property, and giving a copy of the written portion of the policy of each company ; what was the whole cash value of the subject insured ; what was their interest therein ; in what manner (as to trade, manufactory, merchandise, or otherwise) the build- ing insured, or containing the subject insured, and the several parts thereof, were occupied at the time of the loss ; who were the occupants of such build- ing ; and when and how the fire originated, so far as they know or believe. And also produce a certificate, under the hand and seal of a magistrate, or notary public, most contiguous to the place of the fire, and not concerned in the loss as a creditor or otherwise, or related to the insured or sufferers, stating that he has examined the circumstances attending the fire, loss, or damage alleged ; and that he is acquainted with the character and circumstances of the insured, and that he verily believes that they have, by misfortune, and without fraud or evil practice, sustained loss and damage on the subject insured, to the amount which such magistrate or notary public shall certify. The condition that notice of loss be given " forthwith," is satisfied by due and reasonable diligence. Notice on the same day is not absolutely necessary The condition that the insured shall deliver a particular account of loss, etc., is to be construed as requiring only as full and accurate an inventory and statement as the party, free from fraud or fault, is able to furnish. Where all his means for making an accurate statement and inventory are consumed with the merchandise insured, a statement, verified by oath, showing this fact, and that the property covered by the policy and destroyed was at least of the value of a sum named, is a sufficient compliance with the condition. Nor does the fact that he afterwards attempted, at the request of the company, to make a more particular statement from recollection and estimate, tend to invalidate the truth of the statement. If, when the preliminary proofs are presented, the insurer does not object to their sufficiency, but places a refusal to pay the loss, specifically on some other ground, it is an admission of their sufficiency, or a waiver of proof. Good faith on the part of the insurers requires that if they mean to insist upon a merely formal defect in the preliminary proofs, they should apprise the insured of the nature of the objection, so as to give him an opportunity of supplying the defect. PAGE 987. Immediate notice of loss 494 988. Preliminary proofs : 495 9S9. Certificate of magistrate 496 990. Schedule of property, and appraisal 497 987. Immediate Notice of Loss. to the Insurance Company of : My , situated on • street, in , insured by your company by policy No. , was injured [or, destroyed] by fire this morning. The origin of the fire [or, is to me unknown]. Full proofs of the loss will be duly forwarded to you, as soon as they are prepared. [Signatured [Date.] INSURANCE. 495 Proofs of loss. State of County of 988. Preliminary Proofs of Loss. 'is*. To the Insurance Company of : Be it known, that on this day of , a. d. 18 , before me [here insert name and title of magistrate] duly commissioned and sworn, and re- siding in the town [or, city] of , in the county and State aforesaid, personally appeared [name of insured or assignees](d) who being duly sworn, depose and say, and each for himself says, that the following state- ment and the papers therein referred to and signed with his [«?■, their] own hand contains a particular, just and true account of his [or, their] loss in the words and figures following — to wit: I. That on the day of , a. d. 18 , the Insurance Company of , by their policy of insurance, numbered , issued by them [or, by M. N., their agent] at , in the State of , did insure the party herein and therein named against loss or damage by fire to the amount of [here gii:e the written portion of the policy in full] for the term of from the day of , a. d. 18 , to the day of . a. d 18 , at noon [which said policy was subsequently continued in force by renewal, until the day of , a. d. 18 , at noon]. II. That in addition to the amount covered by said policy of said com- pany, there was no other insurance thereon [or, if any, say, there was other insurance made thereon to the amount of dollars, as specified in the accompanying schedule(J), showing the name of each com- pany, and the written portions of each policy, besides which there was no other insurance thereon]. III. That the actual cash value of the property so insured amounted to the sum of dollars [if the loss i* on buildings, give their value, exclu- sive of land, cellar and foundations] at the time immediately preceding the fire, as will appear by the annexed schedule, showing a full and accurate description .of each kind of property, and the value of the same, with the damage or loss on each stated separately. IV. That the property insured belonged to [if real estate, state whether it is owned in fee-simple or held on lease. If the property be held in trust or on commission, state in the schedule the names of the owners, marks and numbers, and the insurance, if any, by the owners or consignees]. V. That the building insured, or containing the property destroyed or damaged, was occupied in its several parts by the parties hereinafter named, and for the following purposes — to wit [designating them], and for no other purposes whatever. (a) One holding the policy as assignee, (b) If there beany additional insurance, with consent of the insurer, is the proper annex a schedule of it, giving the name of person to give notice of loss, under the each company, the date and term of policy, clause requiring notice of the loss from the rate of premium, and the entire writ- persons insured. Cornel'. ». Le Eoy, 9 ten portion of each policy. Wend., 168. 496 ABBOTTS' FORMS. Insurance. VI. That on the day of , a. n. 18 , a fire occurred by which the property insured was injured or destroyed to the amount of dol- lars, as set forth in the statement, and the several schedules and papers hereunto annexed, which the deponent declares to be a just, true and faith- ful account of his [or, their] loss as far as he has [or, they have] been able to ascertain the same. And the insured claim of the Insurance Company, the sum ot $ , as follows : $ on $ on [etc., making the subdivisions of the amount claimed to correspond with the subdivisions of the policy.'] $ Total amount claimed. VII. That the fire originated [here state all you know about the origin oj the fire]. And the said deponent further declares that the said fire did not originate by any act, design or procurement on his [or, their] part, or in consequence of any fraud or evil practice done or suffered by him [or, them], and that nothing lias been done by or with his [or, their] privity or consent to violate the conditions of insurance, or render void the policy aforesaid. Witness my hand [or, our hands], at , in the county of , and State of , this day of , a. d. 18 . [Signature.] Subscribed and sworn to before me, ) this day of , a. d. 18 . J [Signature of officer.] 989. Certificate of Magistrate. State op , 1 $ County of . J ' I [here insert name and title of magistrate], residing in , most con- tiguous to the property hereinbefore described,(c) hereby certify that I am not concerned in the loss or claim above set forth, either as a creditor or otherwise, or related to the insured or sufferers^); that I have examined the circumstances attending the fire, or damage as alleged ; and that I am well acquainted with the character and circumstances of the insured, and do verily believe that he has [or, they have], by misfortune, and without fraud or evil practice, sustained loss and damage on the property insured to the amount of dollars. 1m testimony whereof, I have hereunto set my hand and [official] seal, this day of , a. d. 18 . [Signature, title and seal.] (c) The office of the magistrate, rather (d) The certificate of the magistrate as than his dwelling, may be considered as to the loss, stating that he was not inte- determining his contiguity ; Mid a certifi- rested, etc., is prima-facie evidence of the cate of a magistrate is sufficient, though a fact. Slight evidence that he was the notary lives a few feet nearer to the place nearest justice suffices. Cornell v. Lo of the fire. Turley v. North American Eoy, 9 Wend., 163. Fire Ins. Co., 25 Wend., 874. INTEREST. 497 Eules for the Computation of Interest. 990. Schedule of Property, and Appraisal. The undebsigned hereby certify that the annexed is a schedule of the property of , damaged by on the day of , a. d. 18 , at ,the damage on which was fixed by the undersigned on the day of , a. d. 18 . QUANTITY. NAMES OF ARTICLES AND MARKS. AOTUAL CASH VALUE AS SOUND. APPRAISED DAMAGES. Particular. Aggregate. Particular. Aggregate. [Signatures of appraisers.] CHAPTEE LI. INTEREST. Computation. — When interest is to be computed by months, a month is to be taken to be one-twelfth of a year ; and the first table given below is appro- priate for computing the interest in such cases. But when interest is expressed to be computable by days, each day is re- garded as the 365th part of a year, and in such cases the second table is the appropriate one. In commercial affairs, the calculation of interest on cents is not generally practised, the usage being to increase the number of dollars by one, when there are fifty or more cents, and to disregard the cents when there are less than fifty. Partial Payments. — The rule for casting interest when partial payments have been made, is to apply the payment, in the first place, to the discharge of lie interest then due. If the payment exceeds the interest, the surplus goes iowards discharging the principal, and the subsequent interest is to be com- puted on the balance of principal remaining due. If the payment is less than the interest, the surplus of interest must not be taken to augment the principal : but interest continues on the former principal until the period when the pay- ments, taken together, exceed the interest due, and then the surplus is to be applied towards discharging the principal, and interest is to be computed on the balance. Compound interest, or interest calculated upon unpaid interest, is not in general collectable, unless there is an express agreement made after the interest has become due, that it shall bear interest. 32 4:98 ABBOTTS' FOEMS. Tables for Computing Interest. 991. Table, Showing the Interest on Sums from $10 to $5,000, for Fifteen Days, One Month, and for- One Tear, at Six and at Seven per Cent. 15 DATS. 1 MONTH. 1 YKAR. 6 per ct. 7 per ct. 6 per ct. 7 per ct. 6 per ct. 7 per ct. $10. . .$0.03. ..$0.03 $10. ..$0.05. ..$0.06 $10. . $0 60.. . . $0.70 20. . . 0.05. .. 0.06 20. . . 0.10. .. 0.12 20. . 1.20.. . . 1.40 30. . . 0.08. .. 0.09 30. . . 0.15. .. 0.18 30. . 1.80.. .. 2.10 40. . . 0.10. .. 0.12 40. . . 0.20. .. 0.23 40. . 2.40 . . . . 2.80 50. . . 0.13. .. 0.15 50. . . 0.25. . 0.29 50. . 3.00 . . .. 3.50 60. . . 0.15. .. 0.18 60. . . 0.30. .. 0.35 60. . 3.60.. . . 4.20 70. . . 0.18 .. 0.20 70. . . 0.35. .. 0.41 70. . 4.20.. . . 4.90 80. . . 0.20 . .. 0.23 80. .. 0.40. .. 0.47 80. . 4.80.. . . 5.60 90. . . 0.23. .. 0.26 90. . . 0.45. .. 53 90. . 5.40.. 6.30 100. . . 0.25. .. 0.30 100. . . 0.50.. .. 0.58 100. . 6.00.. . . 7.00 200. . . 0.50. .. 0.58 200. . . 1.00.. .. 1.18 200. . 12.00.. . . 14.00 300. . . 0.75. .. 0.87 .300. . . 1.50 .. 1.75 300. . 18.00.. . . 21.00 400. . . 1.00. .. 1.17 400. . . 2.00.. .. 2.33 400. . 24.00.. . . 28.00 500. . 1.25. .. 1.46 500. . 2.50.. .. 2.92 500. . 30.00.. . . 35.00 1,000. . . 2.50. .. 2.91 1,000. . 5.00.. .. 5.83 1,000. . 60.00.. .. 70.00 2,000. . . 5.00. .. 5.83 2,000. ..10.00.. ..1167 2,000. .120.00.. .140.00 3,000. . . 7.50.. .. 8.75 3,000. .15.00.. ..17.50 3,000. .180.00.. ..210.00 4,000. .10.00. ..11.66 4,000. ..20.00. ..23.33 4,000. .240.00.. ..280.00 5,000. .12.50. ..14.58 5,000. .25.00.. ..29.17 5,000. .300.00.. ..350.00 992. Table, Showina the Interest per Day, on Sums from. $100 to $20,000 at Six and Seven per Cent. 6 per ct. 7 per ct. $100 0.02 0.02 200 0.03 0.04 300 0.05 0.06 400 0.07 0.08 500 0.08 0.10 600 ...0.10 0.12 700 0.12 .....0.13 800 0.13 0.15 900 0.15 0.17 1,000 0.16 0.19 ONE DAT. 6 per ct. $2,000 $0.33.. 3,000 0.49.. 4,000 0.66.. 5,000 0.82.. 6,000 0.99.. 7,000 1.15.. 8,000 1.32.. 9,000 1.48.. 10,000 1.64.. 20,000 3.28.. 7 per ct. . . $0.38 .. 0.58 .. 0.77 .. 0.96 .. 1.15 .. 1.34 .. 1.53 .. 1.73 .. 1.92 .. 3.84 JUSTICES OF THE PEACE. 499 Election, etc. CHAPTEE LII. JUSTICES OF THE PEACE. In the United States, justices of the peace, in addition to their common-law powers as conservators of the peace, generally have jurisdiction in civil cases. Their civil jurisdiction is different in the different States, but is usually limited to actions for the recovery of debts not exceeding a certain amount, or of damages for injuries to property, and to suits on promises, express or implied, or for trespasses, where the title to real estate does not come in question. The forms for various special statutory proceedings of which they have jurisdiction, are contained in the chapters relating to the various subjects. PAGK 993. Certificate of election 499 994. Supervisor's notice of drawing 499 995. Certificate of the drawing 499 993. Certificate of the Election of a Justice of the Peace. County of , ) Town of . f I, M. N"., clerk of the annual town meeting, held in the town of aforesaid, on the day of , 18 , hereby certify that the following persons were chosen justices of the peace for said town, at such town meeting — viz. : A. B. for four years ; C. D. to fill the unexpired term of E. F. [Date.] M. N., oierk of the annual town meeting in the town of 994. Supervisor's Notice of Drawing. Please take notice, that I will meet the justices elected for the town of , and the town clerk of said town, at the house of • , in said town, on the day of , 18 , at , in the noon, to deter- mine by lot the classes of such justices. [Date.' O. P., Supervisor of the Town of 995. Certificate of the Drawing. County as Town of "We, M. N. and O. P., the supervisor find town clerk of the said town of , hereby certify that on the day of instant, at the house of , in said town, a drawing was had in our presence, according to :! 500 ABBOTTS' FORMS. Landlord and Tenant. statute, to determine by lot the respective classes of A. B., 0. D. [etc., etc.]. elected justices of the peace for said town, at a general [or, special] election held therein, on the day of last past; and that the following ir the result of such drawing : A. B. drew for the term of four years ; 0. D. drew for the term of three years [etc.] [Bate.] [Signatures and titles.] CHAPTEE LIII. LANDLORD AND TENANT. The contract. — The appropriate instrument for creating and denning the relation of landlord and tenant is a Lease, and matters concerning the contract are treated in the subsequent chapter under that title. It is not essential, however, that a contract of hiring real estate be reduced to writing if it do not exceed the term of one year. The agreement is not only often verbal, but is sometimes not even express, but implied from the circumstances under which the tenant has possession of the landlord's property. Notice to quit. — Where a tenant, with consent of the landlord, enters into possession, without any express bargain, he is a tenant at will. A tenancy at will may be determined by the will of either party, but only after reasonable notice given by the party intending to terminate the tenancy. The rule is not uniform in the various States, as to what this notice should be. In some instances, a notice of six months may still be necessary, as it is in England. One of three months is more generally sufficient ; and in some States the notice must be at least equal to the interval between the periods of payment of rent. In the absence of a statute rule, the general custom is that the notice should cover the whole of one of the regular intervals between payments. Thus if the rent is paid quarterly, so that three months' notice would be sufficient, the notice, even if given in the middle of a quarter, does not expire till the end of the following quarter. The statutes of some of the States (among others New York) makes one month's notice sufficient. Where the tenancy is under a lease having a definite termination, or where it is a tenancy from year to year, a notice to quit is not necessary to enable the landlord to take summary proceedings under the statute. No particular form of notice is necessary ; but there must be reasonable cer- tainty in the description of the parties, of the premises, of the p lrpose, and of the time. I. Notices. page 996. Notice to terminate a lease 501 997. Notice to quit, by landlord, to tenant from year to year , . 501 998. Notice to quit, by tenant from year to year, to landlord 501 999. Notice to tenant to quit in one month (under the statute) 502 1000. Notice to quit in fifteen days (where .ease reserves right of re-entry). 502 .II. Proceedings to dispossess. 1001. Affidavit by landlord to obtain possession of deserted premises 502 1002. Notice to teuaut who hasj deserted premises , 503 LANDLORD AND TENANT. 501 Notices. PAOB 1003. Notice to deliver possession on default in rent 508 1004. Affidavit to remove a tenant at will 5U3 1005. Affidavit of holding over after expiration of term 503 1006. Affidavit to remove tenant for non-payment of rent 504 1007. Summons to tenant to show cause 504 1008. Affidavit of service 504 1009. Warrant to dispossess tenant, who holds over after expiration of lease 505 1010. Warrant to dispossess tenant at will or at sufferance after notice... 505 1011. Warrant to dispossess, on default in rent 506 1012. lieturn of officer. 506 1013. Affidavit of denial by tenant 506 1014. Precept to summon a jury 506 1015. Warrant to dispossess, after verdict against the tenant 507 III. Forcible entry and detainer. 1016. Complaint 507 1017. Affidavit 507 I. Noi'IOES. 996. Notice to Terminate a Lease. I hereby give yon notice, that in pursuance of the power for this purpose given to me by the indenture of lease, dated the day of , and made between you, of the one part, and me. of the other part, it is my in- tention to determine the lease thereby made, on the day of next, and I shall therefore quit and deliver up possession to you [or, require you to quit and deliver up possession to me] of the messuage [etc., here briefly describe the premises]. [Signature.] [Date.] [Address.] 997. Notice to Quti by a Landlord to a Tenant from Tear to Year. I hereby give you notice to quit and deliver up, on the day of next [if the current year of your tenancy expires on that day, or otherwise on the day on which the current year of your tenancy will expire, next after the end of half a year [or, of a quarter year ; or, of a month] from the time of your being served with this notice],(a) the possession of the mes- suage [etc., here briefly describe the property] which you now hold of me as a yearly tenant. [Signature of landlord.] [Date.] [Address to tenant.] 998. Notice to Quit, by Tenant from Year to Year, to Landlord. ' I hereby give you notice, that I shall quit and deliver up, on the day of next [if the current year of my tenancy expires on that day, or (a) The words in brackets will be inserted wherever there is fc^y doubt as to the day on which the tenancy commenced. 502 ABBOTTS' FORMS. Notices to Quit. Dispossessing Tenants otherwise on the day on which the current year of my tenancy will expire next after the ei:d of half a year [or, a quarter year ; or, of a month], - from the time of your being served with this notice],(6) the possession of the messuage [etc., here briefly describe the property] which I now hold of you as a yearly tenant. [Signature of the tenant.] [Date.] [Address to the landlord.] 999. Notice to Tenant to Quit in One Month, Under the Statute. Please take notice, that you are hereby required to surrender and de- liver up possession of the [here briefly describe premises], and to remove therefrom, on the day of next, pursuant to the provisions of the statute relating to the rights and duties of landlord and tenant. [Date.] [Signature of landlord.] [Address to tenant.] 1000. Notice to Tenant to Quit in Fifteen Days.(c) Please take notioe, that you are hereby required to surrender and de- liver up possession of the [here briefly describe the premises], and that I intend to re-enter and take possession of the said premises, on the day of next (which is at least fifteen full days from the service of this notice), pur- suant to the provisions of an act, entitled "An Act to abolish distress for rent, and for other purposes," passed May 13, 1846. [Date.] _ [Signature of landlord.] [Address to tenant.] II. PEooEEDmes to Dispossess. (d) 1001. Affidavit by Landlord to Obtain Possession of Deserted Premises. County of , ss. A. B., of , being duly sworn, says, that he demised to T. Z., of , the premises lately occupied by the said Y. Z., on street, in the village of , in said county, for the term of , from the day of , 18 , at the yearly rent of dollars, payable quarter- yearly; that the said T. Z. entered into the possession of the said premises, as tenant thereof, by virtue of the said demise,* and is now indebted to your petitioner in the sum of dollars, for one rent of the said premises, due the day of , 18 ; and that he has deserted the same, leaving the said rent in arrear, and the premises unoccupied and un- cultivated. [Signature.] Swoen [etc., as in Form 858]. (J) See preceding note. is reserved in default of sufficient goods (o) This is allowed by the New York whereon to distrain. Statute since the abolition of distress for (d) These proceedings to obtain pos- rent, in case of default in payment of session are regulated, in New York, by 2 rent on a lease in which a right of r j-eutry Rm. Stat., 512. LANDLORD AND TENANT. f>0£ Proceedings to Dispossess. 1002. Notice to Tenant Who Has Deserted the Demised Premises. Please take notice, that, at the request of A. B., your landlord, and upon due proof made to me that he had demised to you the premises upon which this notice is affixed, and that you were in arrear for one quarter's rent, amounting to dollars, and that you had deserted the premises, leaving such rent in arrear, and had left them unoccupied and uncultivated, I have viewed the said premises, and am satisfied, upon such view, that the same have heen so deserted : therefore, you are hereby required to ap- pear, on the day of , 18 , at o'clock in the noon, at the place where this notice is affixed, and pay the rent due, or the landlord will be put in possession of the premises. [Date.] [Signature of] Justice of the Peace. [Address to tenant.] 1003. Notice to Deliver Possession on Default in Bent. Take notice, that you are justly indebted unto me in the sum of dollars for rent of [here briefly describe the premises], from the day of , which you are required to pay on or before the expiration of three days from the day of the service of this notice, or surrender up the possession of the said premises to me, in default of which I shall proceed under the statute to recover the possession thereof. [Date.] [Signature of landlord.] [Address to tenant.] 1004. Affidavit to Remove a Tenant at Will. County of , ss. A. B., of , in said county, being duly sworn, says, that since the day of , in the year 18 , Y. Z., of , has held and occupied the [here designate the premises definitely], as the tenant of this deponent, and at his will, and without any certain time agreed on for the termination of said tenancy. And this deponent caused a notice in writing to be served on the said Y. Z., in due form of law, on the day of last, requiring him to remove from said premises within one from the day of service thereof. That the said time has expired, and that the said Y. Z. or his assigns, hold over and continue in possession of the said premises after the expiration of said time, without the permission of this deponent. [Signature.] Swokn [etc., as in Form 858]. 1005. Affidavit of Holding Over After Expiration of Term. [As in Form 1001 to the *, concluding thus:] which said term has ex- pired, and that he or his assigns hold over and continue in possession of the said premises without the permission of this deponent. Swoen [etc]. [Signature.] 504 ABBOTTS' FORMS. Proceedings to Dispossess Tenant. 1006. Affidavit to Sememe Tenant for Non-payment of Sent.(e). [As in Form 750 to the * continuing thus :] that on the day of , deponent demanded the said rent from the said Y. Z., at , by deliver- ing to him personally [or, by leaving, in the absence of Eaid tenant, at his last — or, usual — place of residence, with his wife — or, son of mature age — residing on the premises, a notice, of which a copy is annexed]. That the said Y. Z. has not yet paid the said rent, in pursuance of the agreement under which the premises were demised to him, or delivered up possession of the said premises ; but he has made default in the payment of the said rent ; and holds over and continues in possession of the said prem- ises without the permission of this deponent, and that satisfaction of the said rent cannot be obtained by distress of any goods or chattels. Swoen [etc., as in Form 868]. [Signature.] 1007. Summons to Tenant, to Show Cause. To Y. Z., of : Whereas, A. B., of said of , has made oath in writing, and presented the same to me, that on or about the day of [here recite the complaint stated in the affidavit] : Therefore, in the name of the People of the State of New York, you -are hereby summoned and required forth- with to remove from the said premises, or show cause before me, at my office in , on the day of , at o'clock in the noon, why possession of the said premises should not be delivered to the said landlord. Witness my hand, the day of , 18 . [Signature of] Justice of the Peace. 1008. Affidavit of Service of the Summons. County of , ss. O. P., of the town of , in the said county, being sworn, says, that on the day of instant, he served the annexed summons upon Y. Z., the tenant therein named, by delivering to him personally a true copy there- of, at the same time showing him the original [or, by leaving, in the absence of said tenant, at his last — or, usual — place of residence, with his wife, re- siding on the premises, a true copy thereof — or, by leaving, in the absence of said tenant, at his last — or, usual — place of residence, with , of mature age, residing on the premises, a true copy thereof]. Swoen [etc., as in Form 858]. [Signature.] (e) This affidavit must state facts show- rent is due, and how it was demanded, ing the conventional relation of landlord and also should distinctly designate th« and tenant, and should show how much premises. LANDLORD AND TENANT. 505 Proceedings to Dispossess. 1009. Warrant to Dispossess Tenant Who Holds Over After Expiration of Lease. To the sheriff ol the county of [or, to any one of the constables, or marshals, of the city of , or, of the town of , in the county of ], greeting: "Whereas, A. 13., of the of , in said county, made oath in writing, and presented the same to me, * that on or about the day of ,18 , he rented unto Y. Z., of , the house and lot known as No. , in street, in said , for the term of from the day of then next ensuing, and that the said T. Z. held over and con- tinued in possession of said premises, after the expiration of the aforesaid term therein, without the permission of the said landlord; whereupon I issued a summons, requiring the said tenant forthwith to remove from the said premises, or show cause before me at a certain time, now past, why the possession of the said premises should not be delivered to the landlord ; t and no sufficient cause having been shown to the contrary, and I, being satisfied, by due proof, of the service of the said summons, did render judg- ment in the said matter in favor of the said A. B., against the said Y. Z., and that the said premises should be delivered to the said A. B., as the landlord, and did enter the said judgment in my docket, and did include in said judg- ment the sum of dollars as the costs of such proceedings to the said A. B. : I do, therefore, in the name of the People of the State of New York, command you to remove all persons from the said premises, and to put the said A. B. in full possession thereof; and you are further commanded to collect the said sum of dollars, costs, of the goods and chattels of the said Y. Z. Witness [etc., as in Form 1007]. 1010. Warrant to Dispossess Tenant at Will, or at Sufferance, After Notice. [As in preceding form to the *, continuing:'] that since the day of , in the year , Y. Z., of , had held and occupied the house and lot in the of , in street, where he then resided, as his tenarit and at his will, without, any certain time agreed on for the termination of said tenancy ; and that he caused a notice in writing to be served on him, the said tenant, in due form of law, on the day of last, requiring him to remove from said premises Within one mouth from the day of the service thereof; and that the said time had expired, but that the said tenant held over and continued in possession of said premises after the expiration of said time, without the permission of said landlord ; where- upon I issued a summons, requiring the said tenant to remove from said premises, or show cause before me, at a certain time now past, why the landlord should not be put in possession of said premises [continue as in form preceding from the to the end}. 506 ABBOTTS' FORMS. Proceedings to Dispossess Tenant. 1011. Warrant to Dispossess, in Default of the Payment of Sent. [As in Form 1009 to the*, continuing:'] that Y. Z. was justly indebted to him in the sum of dollars, for rent of the house and lot known as No. , in street, in aforesaid; that he demanded the said rent from the said Y. Z., who had made default in the payment thereof pursuant to the agreement under which the premises were let ; and that the said Y. Z. held over and continued in possession of the same without the permission of the said landlord, after such default; whereupon 1 issued a summons requir- ing the said tenant forthwith to remove from the said premises, or show cause before me, at a certain time now past, why the possession of the said premises should not be delivered to the landlord [continue as in Form 1009 from the t to the end}. 1012. Return of Officer to Warrant. Pursuant to the command of the above warrant, I have this day put A. B., therein named, in full possession of the premises therein mentioned. [Date.] [Signature of] Constable [or, Marshal] of, etc. 1013. Affidavit of the Tenant Denying Some Material Fact Stated in the Landlord's Affidavit. County of , ss. Y. Z., of , being duly sworn, says, that he does not owe to the said A. B. the sum of for the rent of the house mentioned, nor any rent whatever therefor, as is alleged by the said A. B., in an affidavit lately made before , on which proceedings have been had to remove deponent from the premises. [Signature.] Swoen [etc., as in Form 858]. 1014. Precept to Summon a Jury. Cot/sty of , ss. To the sheriff [or, as in Form 1009], greeting : Whereas I, the undersigned [title of magistrate], for the purpose of forming a jury to try certain matters in controversy between A. B., land- lord, and Y. Z., tenant, have in due form of law nominated [here name the jurors] twelve reputable persons, qualified to serve as jurors in courts of record: You are, therefore, hereby commanded, in the name of the People of the State of New York, to summon the above-named persons so nominated, to appear before me, at my office in , , on the day of , 18 , to try the said matters in difference. [Date] [Signature.] LANDLORD AND TENANT. 507 Forcible Entry. 1015. Warrant to Dispossess After Verdict Against the Tenant. [This may be framed substantially as Forms 1009 to 1011, inserting the following recital:] And whereas, on [or, before] the time appointed in such summons, the said Y. Z. being in [or, claiming] possession of said premises, having filed an affidavit with me, the undersigned, who issued said summons, denying [some of] the facts upon which said summons was issued ; and a jury having been regularly nominated, summoned, drawn and sworn, in pursu- ance of the statute, to determine the matters controverted between the said parties ; and the said jury after hearing the proofs and allegations of the parties, and being kept together by a proper officer duly sworn until they were agreed on their verdict, having found a verdict in favor of the said A. B. III. FoBOIBlE EnTBY AND DETAINEE. 1016. Complaint for Forcible Entry and Detainer. OoiTNTY OF , SS. A. B., of , in said county, complains to [here insert name and title of magistrate], and shows that T. Z., of aforesaid, on the day of , in the year 18 , at , in the county aforesaid, unlawfully made a forcible entry into the lands and possessions of this complainant — to wit [here describe the premises], and then and there with a strong hand and with a multitude of people, did violently, foroibly and unlawfully eject and expel the complainant from his said lands and possessions, wherein this complainant had at the time aforesaid an estate of freehold [or other estate or right of possession, «s the case may be], then and still subsisting; and that the said Y. Z. still holds and detains the said lands and possessions from the complainant unlawfully, forcibly and with a strong hand, and against the statute. [Signature.] [Date.] 1017. Affidavit Accompanying the Foregoing Complaint. County of , ss. A. B., of , the complainant above named, being duly sworn, says that the matters stated in the foregoing complaint are true to his knowledge, and that he had an estate of freehold [or other estate or right of possession] in the said at the time of the said forcible entry and detainer, which then was and still is subsisting. [Signature.] Swoen [etc., as in Form 858], 508 abboits' forms. Leases. CHAPTEE LIV. LEASES. Writing and recording. — By the Statute of Frauds, leases of lands for a period exceeding three years must be in writing, subscribed by the party sought to be chai'ged thereby, or by his agent authorized in writing. This statute has, however, been modified in some of the States in respect to the number of years of leases to which it is to apply. Thus, in New York, leases for a period exceed ing one year must be in writing. In the same way, the rule as to what leases should be recorded varies in the different States. In New York, a lease for a period exceeding three years should be recorded. In some other States, the rule only applies to leases for seven years and upwards. In the State of New York, leases of agricultural lands for more than twelve years are prohibited. Covenants. — The obligation to repair depends upon the terms of the lease. Under the ordinary covenant, in a lease to keep the premises in good and suf- ficient repair, the lessee is bound to do substantial repairs ; but if the house was dilapidated at the commencement of the lease, the lessee is not bound to. restore it in an improved state ; but he must keep it in the state in which it was at the commencement of the lease by the timely expenditure of money and care. In the absence of any special stipulation, the lessee is not bound to rebuild a house accidentally burnt down ; but if he enters into a general covenant to repair, without any exception, he is liable to restore any house or building which may be destroyed by fire, 'tempest, lightning or any other accident. A tenant who is under no obligations to do substantial repairs cannot require the landlord to do them. But by a recent statute, in New York the rent ceases, if the premises are de- stroyed by fire.(a) If it is intended that the lessee shall insure the premises, there should be an express covenant to that effect on his part, which should specify in whose name the insurance is to be, and the amount of the insurance. It is best also to name the company, or provide that the company shall be one approved by the lessor. The lessee should be bound to deliver or produce to the lessor the insurance policy and the receipts for the premiums. A lease often contains a covenant by the lessee not to assign or underlet without the lessor's license. Such a covenant does not prevent a bequest of the term. And a deposit of a lease by way of security is not a forfeiture of a condition "not to underlet, alien, sell, assign, transfer, and set over or other- wise part with" the lease or premises without the license of the' lessor. A sovenant not to underlet is not broken by an assignment ; and a covenant not to assign or otherwise put away the lease or premises does not prevent the lessee from granting an underlease. A covenant not to grant, let, assign, charge or dispose of the premises, is not broken by the lessee giving a warrant of attorney to enter up judgment against him by way of security for bona-fide debts. Conditions. — Where matters on either side are intended to be conditions, so (a) See note («). LEASES. 50tf Analysis of Chapter. that a non-performance will give the other party a right to annul any obliga- tion imposed upon him, it is best that such obligation should he expressly stated to be conditioned upon the performance of the matter in question. paob 1018. Landlord's certificate of renting 509 1019. Tenant's certificate of hiring 510 1020. Security for rent 510 1021. Landlord's certificate, where tenant is not to underlet nor occupy for cer- tain business 510 1022. Tenant's certificate in same case 511 1028. Provision that the tenant may surrender if the premises become unten- antable 511 1024. Provision as to repairs 511 1025. Provision for forfeiture and damageB 512 1026. Tenant's certificate pledging his chattels on the premises as security 512 1027. Security for rent and performance of covenants 512 1028. Short form of lease 512 1029. The same ; with restrictions on occupancy and subletting, and with fire clause 513 1030. Another form ; with provision for re-entry and reletting, tenant to pay water-tax and fire-risk, and have privilege of renewal 514 1031. Indenture of lease '. 515 1032. Landlord's certificate of letting farm with stock and tools 517 1033. Lease of mill ; with proviso suspending rent in case of its ceasing to run. . 517 1034. Lease of a manufactory and premises for carrying on the business of mak- ing and selling cements 517 1035. Lease by tenants in common of wharf, machinery, etc., with covenants by lessee for repairs, and proviso for determining the term at the end of fourteen, twenty-eight or forty-two years by lessee, on his giving pre- vious notice t 518 1036. Mining lease 522 1037. Covenant not to assign, etc 522 1038. Covenant to renew 522 1039. Covenant to buy fixtures at a valuation 523 1040. The same; another form 523 1041. Stipulation for renewal by indorsement 523 1042. Proviso as to re-entry, with waiver of notice 524 1043. Lease for lives at a nominal rent ; 524 1044. Under lease 525 1045. Ground lease, twenty-one years, with covenants to build, and for renewals. 525* 1046. Renewal lease 529 1047. Lease by a municipal corporation for purposes of a fair, lessees covenant- ing to erect building 530 1048. Covenants in -a farm lease on shares 531 1049. Surrender of a lease indorsed thereon 531 1018. Landlord's Certificate of Renting. (b) This is to certify, that I have, this day of , 18 , let and rented unto Y. Z., of [here insert brief description of premises — e.g., thus:] the dwelling-house known as No. in street, in the (J) These forms of certificate are com- of the certificates and delivers it to the mouly used in jeurly Wrings in the city other party. of>";w York. Each party executes one 510 ABBOTTS' FORMS. Short Leases, or Certificates of Letting and Hiring. town of , with the appurtenances, and the sole and uninterrupted use and occupation thereof for year , to commence the day of ,18 , at the yearly rent of dollars, payable quarterly on the usual quarterly days [or, on the first days of May, August, November and February, in each year] — [add, if so agreed, and all taxes and assess, ments are to be paid by him].* [Signature of landlord.] 1019. Tenant 1 8 Certificate of Hiring. Thts is to oektify, that I have, this day of , 18 , hired and taken from A. B., of , the dwelling-house and lot known as No. in street, in the of , with the appurtenances, for the term of year , to commence the day of next, at the yearly rent of dollars, payable quarterly on the usual quarterly days [or, on the first days of May, August, November and February, in each year]. And I do hereby promise to make punctual payment of the rent in' manner aforesaid * [except in case the premises become untenantable, from fire or any other cause, when the tenancy and the rent is to cease](c) : And I do fur- ther promise to quit and surrender the premises at the expiration of the term or tenancy, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted. [Signature of tenant.] 1020. Security for Bent. In considekation of the letting of the premises above described, and for the sum of one dollar, I do hereby become surety for the punctual payment of the rent, in the above-written agreement mentioned, to be paid by Y. Z. as therein specified ; and if any default shall at any time be made therein, I do hereby promise and agree to pay unto the landlord in said agreement named, the said rent, or any arrears thereof that may be due, without re- quiring notice or proof of demand being made. Given under my hand and seal, the day of , 18 . [Signature and seal.] 1021. Landlord's Certificate, Where Tenant is Not to Underlet nor Occupy for Certain Businesses. This is to certify, that I have, this day of , 18 , let and rented unto Y. Z., of [here insert brief description of premises — e. g., thus :] the dwelling-house known as No. in street, in the town of , with the appurtenances, and the sole and uninterrupted nse and occupation thereof for year , to commence the day of ,18 , at the yearly rent of dollars, payable quarterly on the usua. quarterly days [or, on the first days of May, August, November and February, in each year] — [add, if so agreed, and all taxes and assessments (c) This clause v» not always inserted. See note («), infra. LEASES. 511 Certificates jf Hiring. are to be paid by him].* The premises are not to be used or occupied, ex- cept as a private boarding-house [or, for any business deemed extra hazard- jus on account of Are, or otherwise, as may be agreed] ; nor shall the same jr any part thereof, be let or underlet, except with the consent of the land- lord, in writing, under the penalty of forfeiture and damages. [Signature of landlord.] 1022. Tenant's Certificate in Same Case. This is to certify, that I have, this day of , 18 , hired and taken from A. B., of , the dwelling-house and lot known as No. in street, in the of , with the appurtenances, for the term of year , to commence the day of next, at the yearly rent of dollars, payable quarterly on the usual quarterly days [or, on the first days of May, August, November and February, in each year]. And I do hereby promise to make punctual payment of the rent in manner aforesaid* [except in case the premises become untenantable from fire or any other cause, when the tenancy and the rent are to cease.( stipulation on the subject this rule ap- See note («), infra. plies by statute. Laws cf 1860, 592, ch. («) In New York, such a provision as 345. this need not be expressed ; for if there is 512 ABBOTTS' FOKMS. Chattel Mortgage. Security. retain the first quarter's rent, laying it out in painting the outside of the house, and the overplus, if any, otherwise in necessary repairs and about the house. 1025. Provision for Forfeiture and Damages. [Insert at the end of tenants certificate the following :] And in case of not complying with any of the covenants contained herein, the lessor, in his option, shall have the power and the right of terminating and ending this lease immediately, and I agree to pay to the said lessor the sum of dollars, as and for liquidated damages. [Signature of tenant.^ 1026. Tenant's Certificate Pledging Sis Chattels on the Premises as [As in Form 1019, inserting the following at the end :] And I do herehy pledge and mortgage to the said A. B. all my personal property of what kind soever which is or may be on the premises aforesaid, for the faithful performance of the covenants herein, hereby authorizing the said A. B., in case of a failure on my part to perform all or any of said covenants, to take said property so pledged, and sell the same, and out of the proceeds of such sale to pay and discharge all rent, damages and expenses, which may at such time be due, and to pay over to me or my assigns the surplus mbneys arising from such sale, [Signature of tenant.] 1027. Security for Sent and Performance of Covenants. In consideration of the letting of the premises above described, and for the sum of one dollar, I do hereby become surety for the punctual pay- ment of the rent, and performance of the covenants in the above- written agreement mentioned, to be paid and performed by Y. Z , as therein speci- fied ; and if any default shall at any time be made therein, I do hereby promise and agree to pay unto the landlord in said agreement mimed the said rent, or any arrears thereof that may be due, and fully satisfy the con- ditions of the said agreement, and all damages that may accrue by reason of the non-fulfilment thereof without requiring notice or proof of demand being made. Given under my hand and seal, the day of , 18 . [Signature and seal.] 1028. Short Form of Lease. This rNDENTUEE, made the day of , in the year one thousand eight' hundred and , between A. B., of , in the county of , and State of , merchant, of the first part, and Y. Z., of , in the said county, farmer, of the second part, wir- nesseth : That the party of the first part has hereby let and rented to LEASES. 518 Short Form. the pnrty of the second part, and tihe party of the second part has hereby hired, and taken from the party of the first part [here insert brief descrip- tion of the premises — e. g., thus]: all those three brick warehouses and premises known as Nos. 9, 11 and 13 King-street, in the city of , with the appurtenances, for the term of , years, to commence the day or , 18 , at the yearly rent of dollars, payable in equal qnarteily payments on the usual quarterly days [or, on the first days of May, August, November and February], in each year.* And it is agreed that if any lent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the firs*, part to re-enter the said premises, and to remove all persons there- from [may add, the party of the first part hereby waiving any notice to quit or nf intention to re-enter, under the statute]. And xhe said party of the second part covenants to pay to the said party of the first part the said rent, as herein specified, and that at the expiration of the said term, or other determination of this lease, the said party of the second part will quit and surrender the premises hereby demised in as good state and condition as reasonable use and wear thereof will permit, dam- ages by the elements excepted : and the said party of the first part cove- nants tbat the said party of the second part, on paying the said yearly rent, and performing the covenants aforesaid, shall and may peaceably and quietly have, hold and enjoy the said demised premises for the term afore- said. In witness whereof, the parties hereto have hereunto interchangeably set their hands and seals, this day of , one thousand eight hun- dred and Signed, sealed and delivered ) [Signatures and seals.] in the presence of 1 [Signature of witness.] 1029. The Same ; With Restrictions on Occupancy and Subletting, and With Fire Clause. [As in the preceding form to the *, continuing thus:] And the party of j the second part hereby covenants to and with the party of the first part to j make punctual payment of the rent, in the manner aforesaid, and quit and j surrender the premises at the expiration of said term, or other determina- tion of this lease, in as good state and condition as reasonable use and wear i thereof will permit, damages by the elements excepted , and further cove- nants, that he, the party of the second part, will not use or occupy said premises for any business or purpose deemed extra hazardous on account J of fire. And the said party of the second part further covenants, that he will per- mit the said party of the first part or his agent, to enter said premises, for j the purpose of making repairs or alterations, and also to show the premises/ to persons wishing to hire or purchase ; and on and after the first day of . February next will permit the" usual notice of "to let" or "for sale" to be placed upon the walls of said premises, and remain thereon, without hin- 33 514: ABBOTTS' FORMS. Short Forms of Lease. drance or molestation ; and also, that if the said premises, or any part there- of, shall become vacant during the said term, the said party of the first part may re-enter the same, hy either force or otherwise, without being liable to any prosecution therefor; and relet the said premises as the agent of the said party of the second part, and receive the .rent thereof, applying the same, first to the payment of such expense as he may be put to in re- entering, and then to the payment of the rent due by these presents; and the balance, if any, to be paid over to the said party of the second part. And the said party of the second part further covenants, that he will not assign this lease or underlet the said premises, or any part thereof, to any person or persons whomsoever, without first obtaining the written consent of said party of the first part ; and in case of not complying with this cove- nant, the party of the second part agrees to forfeit and pay to the party of the first part the sum of dollars, as and for liquidated damages, which iare hereby liquidated and fixed as damages and not as a penalty. 'I his lease is made and accepted on this express condition, that in case the party of the second part should assign this lease or underlet the said premises, or any part thereof, without the written consent of the party of the first part, that then the party of the first part, his heirs or assigns, in his option, shall have the power and the right of terminating and ending this lease immediately, and be entitled to the immediate possession of said premises, and to take summary proceedings against the party of the second part, or any person or persons in possession as tenant, having had due and legal notice to quit and surrender the premises, holding over their term. And it is further agreed, that in cafe the building on said premises shall, without any fault or neglect on his part, be destroyed, or be so injured by the elements, or any other cause, as to be untenantable and unfit for occu- pancy, the tenant shall not be liable or bound to pay rent to the lessors or owners thereof, for the time after such destruction or injury, and may thereupon quit and surrender possession of the premises.(/) In witness [etc., as in Form 102S]. [Security, if any, as in Form 1020 or 1027.] 1030. Another Form ; With Provision for Re-Entry and Reletting, Tenant to Pay Water-Tax and Fire-Risk, and Have Privilege of Renewal. [As in Form 1028 to the *, continuing thus:] Provided, nevertheless, that if the rent, or any part thereof, shall be unpaid, on any day whereon the same ought to be paid, as aforesaid, or if the said premises shall become vacant during the term hereby granted, or if default shall be made in any of the covenants herein contained, on the part of the tenant, then it shall be lawful for the lessor or assigns, into and upon said demised premises, to re-enter and remove all persons therefrom, and to recover the possession thereof by legal proceedings ; or to re-enter the same, and use such force for the purpose as he or they shall think fit, without being liable to any (/) See note (e), supra. LEASES. 515 Indenture prosecution or indictment therefor, and, the same repossess as in former estate; or, in case lie or they shall think proper, may relet the same as agent of the tenant, in the name of the tenant, or of the lessor, applying the avails thereof first to the payment of the expenses of re-entering, and then to the payment 6f the rent reserved hy this lease, and the balance, if any, to pay over to the tenant; and the tenant covenants to pay to the lessor any deficiency between the amount received on such reletting ami the rent reserved by this lease. And it is further agreed, that in case of re-entry by the lessor, and whether he shall relet as agent of the tenant or not, that the tenant shall be liable to the lessor for a sum equal to the rent hereby reserved, and payable at the same periods, less any sum that shall be received by the lessor as rent of said premises for the said periods. And the tenant covenants not to assign or underlet the said premise.?, nor any part thereof, nor make any alterations therein, nor follow nor suffer to be carried on therein, any business other than , and to keep the Oroton fixtures on said premises in repair at his own expenses ; and that after the day of , he will permit the lessor, or any person by his order, to put a notice on said premises that the same are for sale or to let, and to keep the saice on so long as the lessor shall think necessary; and after said day to permit applicants for the said premises freely to enter, examine and leave on week days, from a. m. till p. m. And he further covenants to pay to the lessor as rent, in addition to that herein- before reserved, on the first day of August, in every year, a sum equal to that which shall be imposed as tax or rent for the Croton water; and in case the fire-risk on said premises shall be increased above what the insur- ance companies of the city of term hazardous, to pay a further sum, on the first day of , in every year that this shall occur, equal to the increased charge of insurance on a value of dollars. It is further agreed, that the lessor shall not be liable for any repairs to said premises, nor for any change in their condition ; and that on the last day of the said term, or other sooner determination of the estate hereby granted, the tenant will peaceably and quietly leave and surrender the said demised premises' in as good condition as they now are or hereafter shall be put, damage by fire and the elements excepted. And it is further agreed, that the tenant shall have the option of extending this lease for a further period of years, if the ground is not required by the lessors for their own use. In witness [etc., as in Form 1028]. [Security, if any, ax in Form 1020 or 1027.] 1031. Indenture of Lease. This rNDENrr/EE, made the day of , in the year one thousand eight hundred and , between A. B., of , in the county of , and State of , merchant, of the first part, and Y. Z., of , in the said county, farmer, of the second part, witnksseth : That the said party of the first part, fo ■ and in consideration of the rents, covenants and agree- ments hereinafter mentioned, reserved and contained, on the part and 516 ABBOTTS' FORMS. Indenture of Lease. behalf of the party of the second part, his executors, administrators and assigns, to be paid, kept and performed, * has leased, demised and to farm let, and by these presents does lease, demise and to farm let, unto the said party of the second part, his executors, administrators and assigns, all [here Insert description of premises] : To have and to hold the said above men- .ioned and described premises, with the appurtenances, unto the said party cf the second part, his executors, administrators and assigns, from the dny of , one thousand eight hundred and , for and during, and until the full end and term of years thence next ensuing, and fully to be complete and ended, yielding and paying therefor, unto the said party of the first part, his heirs or assigns, yearly, and every year, during the said term hereby granted, the yearly rent or sum of dollars, lawful money of the United States of A merica, in equal quarter [or, half] yearly payments — to wit, on the day of [naming the months intended], in each and every year during the said term: Provided always, nevertheless, that if the yearly rent above reserved, or any part thereof, shall be behind or unpaid, on any day of payment whereon the same ought to be paid, as aforesaid; ^ or if default shall be made in any of the covenants herein contained, on the part and behalf of the said party of the second part, his executors, adminis- trators and assigns, to be paid, kept and performed, then and from thence- forth it shall and may be lawful for the said party of the first part, his heirs, or assigns, into and upon the said demised premises, and every part thereof, wholly to re-enter, and the same to have again, repossess and enjoy, as in his or their fir^t ■md former estate, any thing hereinbefore contained to the contrary thereol in any wise notwithstanding. And the said pahty of the second pakt, for himself and his heirs, ex- ecutors and administrators, doth covenant and agree, to and with the said ■ party of the first part, his heirs and assigns, by these presents, that the said party of the second part, his executors, administrators or assigns, shall and will, yearly, and every year, during the term hereby granted, well and truly pay, or cause to be paid, unto the said party of the first part, his heirs or assign-, the said yearly rent above reserved, on the days, and in the manner, limited and prescribed, as aforesaid, for the payment thereof, without any deduction, fraud or delay, according to the true intent and meaning of these presents : [if so agreed, add, and that the said party of the second part, his executors, administrators or assigns, shall and will, at their own proper costs and charges, bear, pay and discharge all such taxes, duties, and assessments whatsoever, as shall or may, during the said term hereby granted, be charged, assessed or imposed upon the said described premises:] and that on the last day of the said term, or other sooner determination of the estate hereby granted, the said party of the second part, his executors, administrators or assigns, shall and will peaceably and quietly leave, sur- render and yield up, unto the said party of the first part, his heirs or assigns, all and singular the said demised premises. And the said paett of the west paet, for himself, his heirs and assigns, doth covenant and agree, by these presents, that the said party of the second part, his executors, admin- istrators or assigns, paying the said yearly rent above reserved, and per- forming the covenants and agreements aforesaid, on his and their part, the LEASES. 517 Of Farm. Of Mill. said party of the second part, his executors, administrators and assigns, shnll and may at all times during the said term hereby granted, peaceably and quietly have, hold and enjoy the said demised premises, without any let, suit, trouble or hindrance, of or from the said party of the first part, his heirs or assigns, or any other persou or persons whomsoever. In witness [etc., as in Form 1028]. 10S2. Landlord's Certificate of Letting Farm With Stock and Tools. This is to cebtut, that I have, this day of , 18 , let and rented unto Y. Z., of , in the county of , a certain farm situate in the town and county aforesaid, and bounded as follows [descri/ilwn] ; with the appurtenances, and also with the use, profits and behoof of the following named stock an.l farming ute isils, cattle, horse? and stock now being or to be on the said premises within described, on and from the day of , 18 , during the time below stated — viz., one span of horses and two set of harness, one pair cattle, one lumber-wagon, and all the farming utensils on the said farm now remaining and being, and the sole and uninterrupted use and occupation thereof, for the term of from the day of , 18, , at the yearly rent of dollars, payable on the first day of January [with the refusal of the same for five years more at the same rent, upon said Y. Z. giving me notice in writing of his intention to renew the lease on or before the day of , 18 ]. [Signature.] [Date.] 1032. Tenant's Certificate of Same. This is to certify, that I have, this day of , 18 , rented ot A. B., of , his farm [describing it], and have agreed to the following covenants — viz., that I will seed well with timothy and clover seed all the land we^t of the brook which is broken up ; that I will leave the manure on the farm ; that I will pay for the sawing of such lumber as' may be needed on the farm, the logs being at the mill; that I will draw said lum- ber, and at my own expense construct a good fence therewith the whole length of the new road on the west side, on or before the day of 18 ; that I will pay or cause to be paid,, the road and land tax on the same. I also promise to use the horses, oxen, wagons, sleighs and other tools carefully, and to return them in as good condition as they are now the necessary wear excepted, together with possession of the farm and buildings, on the day of , 18 . [Signature.] [Date.] 1033. Lease of Mill, With Proviso Suspending Sent in Case of Its Ceasing to Sun. [As in other forms to the description of the premises, continuing thus:] the mill of the party of the first part, now run by M. & N., which is feet in length, and contains looms, being one of the mills knov n and designated as the Ida Mills, in the city of ; together with SI 8 kBBOTiS' FORMS. Lease of Mill. Of Cement Works. all the machinery now in the same belonging to the said party of the first part, and all stoves, boilers and fixtures, and every article now in the said mill which appertains to the same, and is necessary to its successful opera- tion ; and also all the dwelling-houses and storehouses used in connection with said mi 1 !, which now belong to the said party of the first part. And the said party of the first part further agrees to pay all taxes and insurances on said premises, and to furnish water-power, water-wheels, main-shafting and gearing sufficient at all times to keep in constant and full operation said mill, and all the running works of the same, and all machinery driven by water-power now in said mill. And the said party of the first part fur- ther agrees to secure to the said party of the second part the quiet and peaceable possession of all and every part of said premises, machinery ind tools, and all grounds appertaining to said mill, and all passage-ways to and from the same which are now used and may be necessary for the ae- commqdation of the same, for years from the first day of next. It is mutually understood and agreed between the parties hereto, that in case said mill should be necessarily stopped from casualty, or in case there shall be a want of or failure of water-power, the rent above mentioned to be paid shall cease, and not be chargeable during the continuation of such stoppage, want or failure. 1034. Lease of a Manufactory and Premises for Carrying On the Business of Halting and Selling Cements. This indenture, made this day of , 18 , between A. B., of , of the first part, and Y. Z., of , of the second part, witnesseth : That in consideration of the rent and royalties hereinafter reserved, and of the covenants hereinafter contained, and on the part of the said Y. Z., his executors, administrators and assigns, to be observed and performed, he, the said A. B., hereby grants and demises unto the said Y. Z., his executors, administrate" i and assigns — First, all that tenement chiefly used as an en- gine-house, sii date in and fronting street in the city of , which said premises are more particularly delineated ' in the map or plan hereto annexed, and therein colored blue ; and the use and enjoyment of all the machinery, fixtures, implements, utensils and things which now are in or upon the said premises. And secondly, all and singular the manufactories, buildings, boiler-houses, kilns, erections, offices, buildings and premises situate between street and quay in the said city of , which said premises secondly hereinbefore described are more particularly deline- ated in the said map or plan, and therein colored red ; and the use and enjoyment of all the machinery, fixtures, implements, utensils and things which now are in or upon the said premises secondly hereinbefore de- scribed (excepting, nevertheless, and reserving unto the persons in favor of or to whom the same have previously to the date of these presents been excepted and reserved, their executors, administrators and assigns, all the rooms which form the upper story of the several buildings hereby demised, and the absolute use and enjoyment thereof, whether for the purposes of business or otherw : se, and unto the same persons, their executors, adminis- LEASES. 519 Of Cement Works. trators and assigns, and unto their servants, workmen or any other persons 4 on their "behalf; and, as to the piece of land colored brown in the said map, either on foot or by means of carts or other vehicles, horses or other ani- mals, full and free right and liberty of ingress, egress, regress, passage and way at all times over the said piece of land colored brown on the said plan from the point at which the said piece of land .-idjoins the wharf, and by all the other internal and external passages and ways by whicli the said rooms respectively are or can be now approached from the said street from the point aforesaid) : To have and to hold all the said premises hereby de- mised, or expressed so to be, unto the said Y. Z., his executors, adminis- trators and' assigns, for the term of years from the day of next : Yielding and paying in respect of the premises hereby demised every year during the said term of years the clear yearly rent of dol- lars, and yielding and paying every year during the said term a royalty of per bushel in respect of all cements which shall be made or manu- factured and sold by the said Y. Z., his executors, administrators or assigns, or any person or persons on his or their behalf, either on the premises here- by demised or on any part thereof, or on any other premises or in any other place or places whatsoever, such rent and royalties to be paid by equal quar- terly payments on the day of , the day of , the day of , and the day of , clear of all deductions, the first quar- terly payment of the said rent and royalties respectively to be made on the day of next. And the said Y. Z. hereby, for himself, his heirs, executors, administrators and assigns, covenants with the said A. \\., his ex- ecutors, administrators and assigns, that the said Y. Z., his executors, ad- ministrators and assigns, shall and will, during the said term, pay the said rent and royalties respectively on the said days of payment whereon the same respectively are hereinbefore made payable without any deduction, and also pay and discharge all present and future taxes, charges, rates and assessments upon the said premises hereby demised, or on the occupier or occupiers thereof in respect of the same, and will at all times keep indemni- fied the said A. B., his heirs, executors, administrators and assigns, from the payment thereof respectively; and further, that the said Y. Z., his execu- tors, administrators and assigns, shall and will, at all times during the said term of years, carry on, within the said city of , the business of making or manufacturing cements and selling the same there and elsewhere to the best possible advantage ; and shall and will at all times during the said term keep proper books of account on the said premises hereby de- mised, or on some part thereof, and shall from time to time make such en- tries therein as shall clearly show the quantity of cement which shall from time to time be manufactured and sold by liim or them, or any person or persons on his or their behalf, and also the amount of royalties which shall from time to time become payable in respect thereof, and also all other matters which ought to be entered in such books in relation to the said busi- ness ; and shall and will on the first day of every month during the said term, at his or their own expense, supply the said A. B., his executors, ad- ministrato-s and assigns, with a proper and faithful account, in writing, of all the cements which shall have been manufactured or sold as afore- 520 ABBOTTS' FORMS. Lease ofWliarf and Machinery. said (luring the then preceding month, together with all vouchers and such other evidence as may he required in order clearly to show the accuracy of such account; and shall and will, if and when required so to do hy the said A. B.. his executors, administrators or assigns, further evidence the accuracy of every such account by the oath or affirmation of the said Y. Z., his executors, administrators or assigns; and shall and will on every quarter day during the said term during which the royalties hereby reserved are made payable by these presents, pay the full amount of the royalties which shall have become payable in respect of all the cements which shall have been manufactured or sold during the then preceding quarter of a year. And further, that in case the said rent and royalties hereby reserved, or any of them, or any part thereof respectively, shall at anytime or times during the said term, fail to be paid at the times and in the manner hereinbefore provided for this purpose, then (in addition to the powers of distress and entry which he or they m ay possess independently of any special clause to this effect) it shall be lawful for the said A. B., his ex- ecutors, administrators or assigns, into or upon the said premises hereby demised, or expressed so to he, or any part thereof, or any other premises wherein or whereupon the said business may for the time being he carried on, to enter and distrain for the same rent and royalties so in arrear, and the distress or distresses there found to impound and detain, sell and dispose of in such manner as landlords are bylaw authorized to do in respect of ar- rears of rent reserved upon common demise, to the intent that the said A. B . his executors, administrators or assigns, may by such distress or dis- tresses be from time to time satisfied, all such rent and royalties as may be so unpaid as aforesaid, and all costs and expenses occasioned by non- payment or default in payment thereof. In witness [etc., as in Form. 1028]. 1035. Lease by Tenants in Common, of Wharf, Machinery, etc., With Cove- nants by Lessee for Repairs, and Proviso for Determining the Term at the End of Fourteen, Twenty-eight or Forty-two Years by Lessee on His Giving Previous Notice. This indentuee, made the day of , between A. B., of, etc., lessor of one moiety of the premises, of the first part, 0. D., of , lessor of other moiety of premises, of the second part, and Y. Z., of , lessee, of the ■ third part. Whereas the said A. B and 0. D. are seized of and absolutely entitled to the messuage or dwelling-house, piece or parcel of ground, warehouses, offices, erections, wharf, fixtures, machinery and things hereinafter men- tioned, and intended to be hereby demised, as tenants in common in equal shares : And whereas, the said A. B. and O. D. have agreed to grant to the said Y. Z. a lease of the said premises, upon the terms and in the manner hereinafter expressed: Now this indenture witnesseth, that in considera- tion of the rent hereinafter reserved and of the covenants hereinafter con- tained, and on the part ol the said Y. Z., his executors, administrators and LEASES. 521 Of Wharf and Machinery. assigns, to be observed and performed, they, the said A. B. and 0. D. (ac- cording to their respective moieties in the property intended to be hereby demised), do, and each of them does, hereby grant and demise unto the said Y. Z., his executors, administrators and assigns, all that messuage or dwelling-house, etc, and also all that piece or parcel of ground, etc., with the warehouses, offices or buildings, and other erections now standing and being thereon ; and also all that wharf adjoining thereto, now called and known by the name of Wharf, situate, lying and being in , in the county of , and bounded [here give boundaries], and now in the occupation of , and all which said hereditaments and premises are more particularly described or delineated in the map or plan drawn in the margin of {or, annexed to] these presents. And also the use and en- joyment of all the machinery, cranes, fixtures, implements, utensils and things which now are in or upon the said premises, and the particulars whereof are specified in the schedule hereto annexed: To have and to hold the said premises hereinbefore demised or expressed so to be, unto the said T. Z., his executors, administrators and assigns, from the day of , 18 , for the term of sixty years thenceforth, yielding and paying therefor yearly, and every year during the said term of sixty years, the rent of dollars, by equal half-yearly payments, on the day of and the day of . And the said Y. Z. hereby for himself, his heirs, executors, administrators and assigns, covenants in manner following: That the said Y. Z., his executors, administrators and assigns, shall and will [insert cove- nant, to pay rent and taxes, as above], and also shall and will at all times, during the said term, at his and their own costs, as often as occasion shall require, well and sufficiently repair, support, maintain and keep in good and substantial repair and condition the messuage, wharf, machinery and premises hereby demised, or expressed so to be, and also all other the erec- tions and buildings which shall at any time during the said term be erected and set up in or upon the said demised premises, and the same in such good and substantial repair and condition, shall and will, at the expiration or other sooner determination of the said term of sixty years, peaceably and quietly surrender and give up unto the said A . B. and C. D., their heirs and assigns, the reasonable use and wear thereof in the mean time only ex- cepted. Provided always, and it is hereby agreed and declared, that if the said Y. Z., his executors, administrators or assigns, shall be desirous of de- termining the said term of sixty years, at the expiration of the first fourteen, twenty-one or forty -two years of the said term, and of such his or their de- sire shall for that purpose deliver to the said A. B. and 0. D., respectively, or their respective heirs or assigns, months' previous notice in writing, and shall pay and discharge all arrears of rent, and perforin all the cov- enants hereinbefore contained, and on his and their part to be observed and performed, then and in such case, at the expiration of the said term of fourteen years, this present lease, and every thing herein contained shal absolutely cease and determine to all intents and purposes. 1st witness [eta., as in Form 1028J. 522 ABBOTTS' FORMS. Mining Lease. Covenants. 1036. Mining Lease. [As in Form 1031 to the *, continuing thus :] do grant and convey to the said party of the second part, his heirs, executors, administrators and as- signs, the right of entering in and upon the lands hereinafter described, for the purpose of searching for mineral and fossil substances, and of conduct- ing mining aud quarrying operations, to any extent he may deem advisable [for the term of years, from the day of ,18], (but not to hold possession of any part of said lands for any other purpose whatsoever), paying for the site of buildings [or, designate other works] necessary thereto, a reasonable rent. The said lands are situated [here insert description]. And the said party of the second part hereby agrees that he, his heirs, executors, administrators or assigns, will pay or cause to be paid to the said party of the first part, his heirs or assigns [here state payments'], and also covenants that no damage shall be done to or upon said lands and premises, other than may be necessary in conducting said operations. And the said parties of the first and the second part, each for themselves, their heirs, ex- ecutors, administrators and assigns, covenant and agree, and this indenture is made with this express proviso, that if no mineral or fossil substance be mined or quarried, as now contemplated by said parties, within the period of years, from the day of , 18 , then these presents, and every thing contained herein, shall cease, and be forever null and void. In witness [etc., as in Form 1028]. 1037. Covenant Not to Assign, etc. And also that he, the said party of the second part, himself, his executors, administrators or assigns, or any of them, shall not, nor will, at any time or times hereafter, during the term hereby granted, lease, let or demise all or any part of the said premises hereby demised, nor assign, transfer or make over the same, or this present lease, or any of his or their term or time therein to any person or persons whomsoever, without the consent of the said party of the first part, his heirs or assigns, in writing, under his or their seal, for that purpose first had and obtained, any thing hereinbefore contained to the contrary thereof in any wise notwithstanding. 1038. Covenant to Sinew. It is further agreed, that at the expiration of the term [in the annexed lease mentioned], the said party of the first part hereby agrees to let and lease to the said party of the second part all the premises, machinery and appurtenances in said lease mentioned, for another term of . years, at the same annual rent, and on the same conditions under which said party of the second part now holds said premises under and by virtue of the present lease ; provided said party of the second part shall, at least one yeai LEASES. 523 Various Covenants. before the termination of the present lease, notify the said party of the first part of his intention to hire said premises and appurtenances for such additional term. 1039. Covenant to Buy Fixtures at a Valuation. And the said party of the first part hereby covenants and agrees to and with the said party of the second part, that at the expiration of the present lease, or of the renewed lease, if the same shall be accepted, he will pur- chase of the said party of the second part all the machinery that shall have been placed by him in or upon the said premises during the whole time he shall have occupied the same, allowing therefor to the said party of the second part the full valuation at which such machinery shall then be esti- mated, in the buildings, and not for purpose of removal. And in case the parties hereto shall not agree upon such valuation, then the same shall be made by three disinterested persons, one of whom is to be chosen by each of said parties, and the other to be selected by the two so chosen. 1040. The Same ; Another Form. That if said company shall put into said buildings steam-boiler pipes and apparatus for heating of said buildings by steam, and also shall put into that part of said buildings to be occupied by said company gas-pipes and fixtures for lighting the same, then at the termination of said lease said ex- ecutors shall, on demand, pay to said company, for said gas-pipes and fix- tures, the original cost thereof, without interest ; and for said boiler, steam- pipes and apparatus the then value of the same, as such value shall be determined by three competent and disinterested appraisers, one chosen by said executors and one by said company, and the third by the two so chosen. In default of such payment for any of said property so to be paid for as aforesaid, said company may at its election remove the same, but without causing unnecessary damage to said buildings. Said value of the boiler, steam-pipes and apparatus shall be determined by their value in said buildings, and not their value when removed therefrom. 1041. Stipulation for Renewal by Indorsement. And it is further agreed, that in case the said party of the second part shall, with the written consent of said party of the first part, indor>ed hereon or on the duplicate hereof, at any time hold over the said premises beyond the period above specified as the termination of this lease, then said party of the second part shall hold said premises upon the same terms and utider the same stipulations and agreements as are in this instrument contained, and no holding over by said party of the second part shall op- erate to renew this lease without such written consent of said party of the first part. 524: ABBOTTS' FORMS.' Lease for Lives. 1042. Proviso as'to Re-entry, With Waiver of Notice. Peovidkd, however, and it is further agreed, that if the said rent shall remain unpaid days after the same shall become payable as aforesaid, or if the said party of the second part shall assign this lease, or underlet or otherwise dispose of the whole or any part of said demised premises, or use. the same for any purpose but that hereinbefore authorized, or make any alteration therein, without the consent of the party of the first part in wri- ting, or shall commit waste or suffer the same to be committed on said premises, or injure or misuse the same, then this lease shall thereupon, by virtue of this express stipulation therein, expire and terminate, and the party of the first part may at anytime thereafter re-enter said premises, and the same have and possess as of his formei estate, and, without such re-entry, may recover possession thereof in the manner prescribed by the statute relating to summary process ; it being understood that no demand for the rent, and no re-entry for condition broken, as at common law, shall be necessary to enable the lessor to recover such possession pursuant to said statute relating to summary process, but that all right to any such de- mand or any such re-entry is hereby expressly waived by the said party ot the second part. . And it is further agreed between the parties hereto, that whenever this lease shall terminate, either by lapse of time or by virtue of any of the ex- press stipulations therein, the said lessee hereby waives all right to any no- tice to quit possession, as prescribed by the statute relating to summary process. 1043. Lease for Lives, at a Nominal Rent. This htcientuee, made the day of , in the year one thousand eight hundred and , between A. B., of , in the county of , and State of , merchant, of the first part, and Y. Z , of , in the said county, and W. Z. his wife, of the second part, witnesseth : That the said party of the first part, for and in consideration of the rents hereinafter mentioned, and also in consideration of love and affection, doth hereby grant, demise and let unto the said parties of the second part the brown- stone house and the land on which the same is located, being forty-four feet front, and also the two vacant lots of ground adjoining thereto ; the said premises being in street, between and avenues ; and also the stable in the rear of slid house, and fronting on street : To have and to hold the said described premises with the appurtenances, in- cluding the household furniture therein, and also the library, fixtures, plate, paintings, statuary and household furniture now in said house, unto the said parties of the second part jointly while they both shall live, and to the survivor while he or she shall live, they, he or she paying therefor unto the said party of the first part the yearly rent of one dollar per annum on the first day of in each and every year during said term, and com- mencing on the day of , in the year one thousand eight hundred and And for he consideration aforesaid, the said party of the first part, for LEASES. 525 Ortder Lease. Ground Lease. his heirs, executors and administrators, further covenants and agrees to pay all taxes and assessments that may be imposed upon and he chargeable against the said premises, during the continuance of this lease, from year to year as the case may be, and will also keep the said house and stable, and the goods and household furniture therein, at all times adequately insured. And the said party of the first part, for his executors and administrators, doth covenant and agree to and with the said parties of the second part, that the said parties of the second part, on paying the said yearly rent, shall jointly while they both live, and the survivor while he or she shall live, at all times during the continuance of this lease, peaceably and quietly have, hold and enjoy the said demised premises without any manner of suit, trouble or hindrance of or from the said party of the first part, his heirs or assigns, or any other person or persons whomsoever. . In witness [etc., as in Form 1028]. 1044. Under Lease. [Follow other forms, except that offer describing the premises, say :] being the same premises demised by M. N. to the party of the first part, by a lease bearing date the day of ,18 [and among the covenants, add:\ And the said [naming lessee], for himself, his heirs, executors and adminis- trators, hereby covenants with the said [lessor], his executors, admiuistra- tors and assigns, that he and they will truly pay, or cause to be paid, the yearly rent, reserved by the said lease so granted by the said H. N., as afore- said, and observe and perform the covenants, conditions and agreements therein contained, and will keep the said [lessor], his executors, administra- tors and assigns, indemnified against the payment of the same rent, and the performance of the same covenants, conditions and agreements, except so far as such covenants, conditions and agreements are conformable to the covenants, conditions and agreements hereinbefore contained on the part of. and which ought to be observed and performed by the said lessor, his executors, administrators and assigns. 1045. Ground Lease, Twenty-one Years, With Covenants to Build, and for Renewals. This indenture, made this day of , 18 , between the A. B. corporation of the city of , of the first part, and Y. Z. of the city of , of the second part, witnbsseth: That the said parties of the first part, in consideration of the rents and covenants hereinafter reserved and contained, have granted, demised and to farm let, and by these presents, do grant, demise and to farm let, unto the said party of the second part, all that certain lot of land, situate, lying and being in the Ward of the city of New York; being part of the lauds of the said parties of the first part, and distinguished [here insert description of the premises]: To have and to hold the said lot of land, unto the said party of the second part, his executors, administrators and assigns, from the day of , 18 , for and during, aud until the full end and term of years the: ce 526 ABBOTTS' FORMS. Ground Lease. next ensuing, and fully to be complete and ended; yielding and paying for the same, yearly and every year during the said term, unto the said parties of the first part, their successors or assigns, the sum ol dollars, of lawful money of the United States, in two equal half-yearly payments; that is to say, on the first day of May and on the first day of November, in each and every year during the term hereby granted; the first payment to be made on the first day of May now next ensuing : Peovided, always, that if it shall happen that the said yearly rent, or any part thereof, shall not be paid on any day on which the same ought to be paid as aforesaid, then and at all times thereafter, it shall and may be lawful to and for the said parties of the first part, their successors or assigns, into the said demised premises, or any part thereof, in the name of the whole, to re-enter and to repossess, have and enjoy the same again as of their former estate and interest therein, any thing herein contained to the contrary in any wise notwithstanding. And the said party of the second part, for himself, his executors, adminis- trators and assigns, does hereby covenant and agree, to and with the said parties of the first part, their successors and assigns, that the said party of the second part, his executors, administrators and assigns, shall and will, half yearly, and every year during the term hereby granted, well and truly pay unto the said parties of the first part, their successors or assigns, the said rent hereby reserved, at the days and times hereinbefore limited for the payment thereof, without fraud or delay: And also, that the said party of the second part, his executors, administrators or assigns, shall and will, at his and their own proper costs and charges, bear, pay and discharge all such duties, taxes, assessments and payments, extraordinary as well as ordinary, as shall, during the term hereby granted, be imposed or grow due and payable, out of or for the said demised premises or any part thereof, by virtue of any present or future law of the United States of America, or of the State of , or of the corporation of the city of . And also, that the said party of the second part, his executors, administrators or assigns, or any of them, shall not, nor will, at any time or times hereafter during the term hereby granted, lease, let or demise, all or any part of the said premises, nor assign, transfer or make over the same, or this present lease, or any of his or their term or time therein, to any person or persons whomsoever, without the consent of the said parties of the first part, their successors or assigns in writing, under their seal for that purpose first had and obtained, any thing hereinbefore contained to the contrary thereof in any wise notwithstanding; and also, that the said party of the second part, his executors, administrators or assigns, or any of them, shall not, nor will, at any time hereafter, during the term hereby granted, erect, make, establish or carry on, nor cause or suffer to bo erected, made, estab- lished or carried on, in any manner, on any part of the above-described and hereby demised premises, any stable, slaughter-house, tallow chandlery, smith-shop, forge, furnace or brass-foundry, nail or other iron factory, or any manufactory for the makiug of glass, starch, glue, varnish, vitriol, tur- pentine or ink ; or for tanning, dressing, preparing or keeping skins, hides or leather; or any distillery, brewery, sugar bakery, or any other manu- factory, trade, businesf or calling whatsoever, which may be in any wise LEASES. 527 Ground Lease. noxious or offensive to the neighboring inhabitants; and lastly, that the said party of the second part, his executors, administrators or assigns, shall and will, on the last day of the term hereby granted, or other sooner deter- mination thereof, well and truly surrender and deliver up the said hereby demised premises into the possession of the said parties of the first part, their successors or assigns, 'without fraud or delay. Provided always, that it shall be lawful for the said parties of the first part, their successors and assigns, when and as often as default shall be made in the payment of the said rent, or any part thereof, to distrain for the same, any thing herein contained to the contrary notwithstanding. And provided further, and this present lease is upon this express condition, that if the said party of the second part, his successors or assigns, shall at any time during the term hereby granted, erect, make, establish or carry on, or cause or suffer to be erected, made, established or carried on, in any manner, on any part of the above-described and hereby demised premises, any stable, slanghter-house, tallow chandlery, smith-shop, forge, furnace or brass-foundry, nail or other iron factory, or any manufactory for the making of glass, starch, glue, var- nish, vitriol, turpentine or ink; or for tanning, dressing, preparing, or keeping skins, hides or leather ; or any distillery, brewery, sugar bakery or any other manufactory, trade, business or calling whatsoever, which may be in any wise noxious or offensive to the neighboring inhabitants; or shall fail in the performance of any or either of the covenants, conditions or provisoes in these presents contained, which, on the part and behalf of the said party of the second part, his executors, administrators and assigns, are or ought to be observed, performed, fulfilled and kept, then and from thence- forth, this present indenture and the estate hereby granted, and every clause, article and thing herein contained, on the part and bthalf of the said parties of the first part, to be performed, fulfilled and kept, shall cease, determine and be utterly void, to all intents and purposes whatsoever, any thing herein contained to the contrary thereof in any wise notwithstanding. And the said party of the second part, for himself, his executors, adminis- trators and a?signs, hereby further covenants and agrees, to and with the said parties of the first part, their successors and assigns, that he, the said party of the second part, his executors, administrators or assigns, shall and will, within years from the commencement of the term hereby granted, erect and build, or cause to be erected and built, on the premises hereby demised, so as to cover the whole front thereof, a good and sub- stantial dwelling-house, stories high, to be covered with slate or metal, and the front thereof to be finished in such style as may be approved of by the said parties of the first part, their successors or assigns. And it is hereby mutually covenanted and agreed, by and between the parties to these presents, that if the said party of the second part, his executors, ad- ministrators or assigns, shall and do, within years from the com- mencement of the term hereby granted, erect and build, or cause to be erectej and built on the premises hereby demised, such dwelling-house as is above described, then the said parties of the first part, their successors or assigns, shall and will, at the end and expiration of the term hereby demised. Krant and execute unto the said party of the second part, his executors, 528 ABBOTTS' FOEMS. Ground Lease. administrators or assigns, at bis or their expense, a renewal of this lease, for the further term of twenty-one years thence ensuing, at such annual rent as shall be agreed upon by the said parties, their executors, adminis- trators, successors or assigns, respectively, in half-yearly payments (but not less than the rent above reserved); and in the event of their not agreeing upon such rent, each party shall choose a disinterested person to ascertain the same, which persons so chosen shall themselves .respectively be owners, in fee-simple, of one or more lots of land in the neighborhood of the one hereby ■ demised, and shall, in making their award or determination in the said premises, under oath, appraise and value the said lot of land hereby demised, at its full and fair worth or price at private sale, considering the same as an unencumbered vacant lot, and per cent, on the amount of their said appraisement or valuation shall be the annual rent of the said lot of land' for such further term; and in case the arbitrators should differ in the amount of their appraisement or valuation, as aforesaid, they shall then choose an umpire, qualified as aforesaid, whose decision, under oath, shall fix and determine the same, and per cent on the amount of the ap- praisement or valuation so fixed and determined shall be the annual rent of the said lot of land for such further term. And it is further mutually covenanted and agreed, by and between the parties aforesaid, that at the expiration of the term to be granted by such renewed release as aforesaid, the said parties of the first part, their successors or assigns, shall have the full liberty and choice either to grant a second renewal of this lease for the further term of years thence ensuing, at such annual rent, payable half yearly (but net less than the rent of the preceding term), as shall be ascertained and determined in the manner aforesaid, or to pay unto the said party of the second part, his executors, administrators or assigns, the value of the said house to be built and erected as aforesaid, which value shall be ascertained by three disinterested persons on oath, to be chosen as aforesaid. And it is further mutually covenanted and agreed, by and between the parties aforesaid, that in case the said parties of the first part, their successors or assigns, shall and do elect and choose to grant a second renewal of this lease as aforesaid, they, the said parties of the first part, their successors or assigns, shall still have and retain the full liberty and choice at the expiration of the term to be granted by such second renewal, either to grant a third renewal of this lease for the farther term of twenty-one years thence ensuing, at such annual rent, payable half yearly (but not less than the rent of the last preceding term), as snail be ascer- tained and determined in the manner aforesaid, or to pay unto the said party of the second part, his executors, administrators or assigns, the value of the said house, which value shall be ascertained as aforesaid ; and in this manner, at the expiration of the term to be granted by the first renewal of this lease, and at the expiration of each and every term which may be thereafter granted by each and every subsequent renewal of this lease, the said parties of the first part, their successors or assigns, shall still have and retain the full liberty and choice, either to grant a further renewal of this lease fur the further term of twenty-one years, at such annual rent payable half yearly (but not less than the rent of the last preceding term), LEASES. 529 Kenewnl Lease. as shall be ascertained and determined in the manner aforesaid, or to pay unto the said party of the second part, his executors, administrators or assigns, the value of the said house, which value shall be ascertained as aforesaid. And it is further mutually covenanted and agreed, by and be- tween the parties aforesaid, that whenever the said parties of the first part, their successors or assigns, shall refuse to grant a renewal of this lease as aforesaid, the said house shall be valued and paid for as aforesaid : Provided always, that the party of the second part, his executors, administrators or assigns, shall not be compelled to surrender the premises until such pay- ment be made or tendered. And it is further mutually covenanted and agreed, by and between the parties aforesaid, that in case the said parties of the first part, their successors or assigns, shall at the expiration of the term to be granted by the first renewal of this lease, or at the expiration of any term which may be granted thereafter, by any subsequent renewal thereof, elect and choose to pay unto the said party of the second part, his executors, administrators or assigns, the value of the said house to be ascer- tained as aforesaid, and shall actually make such payment or tender the same, he, the said party of the second part, his executors, administrators or assigns, shall then deliver up the said house in the same order and con- dition in which it was at the time of its valuation as aforesaid, and also all and singular other the premises hereby demised, into the hands and posses- sion of the said parties of the first part, their successors or assigns, without fraud or delay. And lastly, it is mutually covenanted and agreed, by and between the parties aforesaid, that each renewed lease shall contain the like covenants, provisoes and conditions, as herein contained, except as regards the erection of any house or building on the said demised premises. In witness [etc., as in Form 1028]. 1046. Renewal Lease. "Whereas the said parties of the first part, by indenture dated the day of i 18 i did grant and demise unto , all that certain lot of land hereinafter described for the term of twenty-one years, from the day of then next, subject to certain rents, covenants and con- ditions therein reserved and expressed. And among other things it was thereby agreed, that in case of the erection on the said lot of land of a building of such description as is therein specified, the said parties of the first part should, at the expiration of the said term, grant a new lease of the said lot for the further term of twenty-one years, at an annual rent to be agreed upon or ascertained as is therein mentioned, and with such cov- enants, conditions and provisoes to be therein inserted as are hereinafter contained. And whereas a building has been erected on the said lot of land of the description mentioned in the said lease, according to the terms thereof, whereby the said party of the second part is entitled to a renewal of the said lease for such further term, at an annual rent hereinafter re- served, and now in the manner prescribed by the said lease, payable half yearly, and subject to the covenants, conditions and provisoes hereinafter contained. Now, therefore [proceeding as in preceding form]. 34 530 ABBOTTS' FORMS. Building Lease. 1047. Lease by a Municipal Corporation for Purposes of a Fair, Lessees Covenanting to Erect Building. This indenture, made this day of , one thousand eight hun dred and , between the mayor, aldermen and commonalty of the city of New York, parties of the first part, and Y. Z., of said city, party of the second part. Wheeeas a certain resolution was heretofore adopted by the common council of said city, and approved by the mayor of said city, on the day of , which said resolution is as follows: "Resolved, that thefree use and sole occupation of the ground known as Reservoir Square, belong- ing to the corporation of the city of New York, and bounded [etc.], be, and the same is hereby granted to Y. Z. and his associates for the term of five years, if required and used by them for the purpose hereinafter mentioned for that period ; if not for the period of time, tbey may use the same not beyond five years from the adoption of this resolution, said Y. Z. and his associates paying therefor the rent of one dollar per annum, whereon to erect a building of iron and glass for the purpose of an Industrial Exhibi- tion of all Nations, in pursuance of the prayer of the petitioner, annexed, provided that the price of admission to said building for individual-! shall at no time exceed fifty cents. Now this indentuee witnesseth, that the said parties of the first part have letten, and by these presents do grant, demise and to farm let unto the said party of the second part, the free use and sole occupation of that part of the ground known as Reservoir Square, which is particularly designated, being colored pink on a map hereto an nexeil, drawn by , city surveyor, dated [etc.], which said map is considered a part of this indenture, said portion of said ground measuring [etc.], for the purpose of erecting thereon a building of iron and glass fcr the purpose of an Industrial Exhibition of all nations, pursuant to the prayer of said Y. Z. heretofore presented to the said common council, and. on file in the office of the clerk of said common council, for the term of five years, if required and used by the said party of the second part for the purpose hereinbefore mentioned for that period ; if not for the period of time he may use the same for said purpose, not beyond five years from the said day of , one thousand eight hundred and , at the yearly rent or sum of one dollar per annum, to be paid in equal quarter-yearly payments ; and it is agreed, that if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said parties of the first part to re-enter the said premises, and to remove all persons therefrom. And the said party of the second part doth hereby covenant to pay to the said parties of the first part the said yearly rent as herein specified ; and it is expressly understood and agreed, and this indenture is upon the express condition that the said party of the second part and his associates, shall and will erect upon the said premises, such a building as is described in the petition and resolution aforesaid, and that the price of admission to said building for individuals shall at no time exceed fifty cents ; and that at the expiration of the said term, the said party of the second part shall quit and surrender the premises LEASES. 531 Farm Lease on Shares, Surrender. hereby demised, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted; and the said par- ties of the first part do covenant, that the said party of the second part, on paying the said yearly rent, and performing the covenants and agreements aforesaid, shall and may peaceably and quietly have, hold and enjoy the said demised premises for the term aforesaid. In witness [etc., as in Form 1028]. 1048. Covenants in a Farm Lease on Shares. And the said party of thv deoond part hereby covenants and agrees, to and with the party of the first part, that he will occupy, till and in all re- spects cultivate the premises above mentioned, during the term aforesaid, in a husbandlike manner, and according to the usual course of husbandry practised in the neighborhood ; that he will not commit any waste or damage, or suffer any to be done ; that he will keep the fences and build- ings on the said premises in irood repair, reasonable wear thereof and dam- ages by the elements excepted ; and that he will deliver to the said party of the first part, his heir*, executors or administrators, or to his or their order, one equal half of all the proceeds and crops produced on the said farm and premises aforesaid, of every name, kind and description, — to be divided on the said premises, in the mow, stack, or half-bushel, according to the usual course and custom of making such divisions in the neighbor- hood, and within a reasonable time after such crops shall have been gath- ered and harvested. It is further agreed between the parties hereto that the party of the first part shall provide one equal half of all seed or seeds necessary to be sown or planted on said premises, and pay all taxes and assessments upon the same; that the party of the second part is to do, or cause to be done, all necessary work and labor in and about the cultivation of the said premises ; that he is to have full permission to inclose, pasture or till and cultivate the said premises, so far as the same may be done without injury to the reversion, and to cut all necessary timber for firewood, farming purposes and repairing fences ; and that he is to give up and yield peaceable posses- sion of the said premises at the expiration of his said term. 1049. Surrender of a Lease Indorsed Thereon. Know all men by these presents, that I, Y. Z., the within-named lessee [or, assignee of the within -named lessee], in consideration of dollars, to me in hand paid, do, for myself, my executors and administrators, bar- gain, sell, surrender and yield up, from the day of the date hereof, unto the within-named Y. Z., lessor [or other owner of the reversion], and his heirs [or, his executors and administrators], the within indenture of lease, and the lands and premises therein mentioned, and the term of years therein yet to come, with all my right, title and interest thereto, and that free and clear of all encumbrances of what kind soever, at any time, by me, or by my privito consent or procurement, done, committed or suffered. In witness [etc., as in Form 1028]. 532 ABBOTTS' FORMS. Legislation. CHAPTEE LV. LEGISLATION. Notice of application. — By the statutes of New York/a) it is required that all persons applying to divide or alter the bounds of any county, city or vil- lage ; or to erect a new county ; or to incorporate a new city or village ; for the removal of any courthouse ; or the imposing of a tax for making or improving a road ; or for any other local purpose, in any county, where all or any of the inhabitants of such county are proposed to be taxed ; for a release of lands es- cheated to the State ; for the passage of laws authorizing the construction of dams in or across the streams or waters of this State, which are, by law, public highways ; — shall give notice of such intended application by advertisement, to be published for at least six weeks successively, immediately before such appli- cation or before the first day of the session at which the same is to be made, in a newspaper printed in the county, or in each of the counties where the objects of such application are intended to be carried into effect, and also in case of in- tended application for the imposition of any tax as aforesaid, in the State paper. Every association intending to apply to the Legislature for an act of incor- poration, and every corporation intending to apply for an alteration, amend- ment or extension of its charter, shall cause the like notice of such application to be published in the State paper, and also in a newspaper printed in the county in which such corporation is intended to be, or shall have been established. If no newspaper be printed in a county in which any notice is required to be published, such notice shall be published in like manner, in the place nearest thereto in which a newspaper shall be printed. If the application be for an act of incorporation, the notice shall specify the amount of the capital stock requisite to carry the objects of such incorporation into effect ; and if the application be for an alteration in any charter already granted, the notice shall state specifically the alteration intended to be applied for. The notice of all other applications, of which notice is required to be given, shall specify the nature and objects of such intended applications. It is held, however, that the omission to give such notice does not affect the validity of such an act, if it be passed by the Legislature without the notice ; and if it could, the notice might be presumed to have been given, in the ab- sence of evidence to the contrary .(b) Private bills. — The constitution(c) provides that no private or local bill shall embrace more than one subject, and that shall be expressed in the title. The intent of this is to prevent the uniting of various objects having no neces- sary or natural connection with each other in one bill, so as to combine various interests in support of the passage of the whole bill.((?) Where the object of a bill is single and entire, provisions incidental thereto need not be expressed in the title, but the title should indicate the general scope and object.(e) (a) 1 Rev. Stat., 155. («) Brewster v. City of Syracuse, 19 N. (b) Smith v. Helmer, 7 Barb., 416. T., 116; Mosier v. Hilton, 15 Barb., 657; (c) Const, of N. Y , art. 3, § 16. People v. Lawrence, 86 11., 177. (d) Conner v. Mayor, etc., of N. Y., 5 ST. T. (1 titld.), 285. LETTERS OF CREDlf. 533 Notice of Applying to Legislature. PAGR 1050. Notice of application to Legislature 533 1051. Petition for enactment of i 'iw 583 1052. Remonstrance against a pending bill 533 1050. Notice of Application to the Legislature. Notice is hereby given, that an application will be made to the Legis- lature of the State of New York, at the session commencing on the day of , 18 , for [Jiere state the nature and objects, as alone required], [Date.] A. B., of O. D., of 1051. Petition for the Enactment of a Law. To the Legislature of the State of : The petition of the undersigned, citizens [and taxpayers] of said State, respectfully shows. [Here state facts.] Wherefore, your petitioners ask the enactment [here state what is de sired]. [Date.] [Signatures.] 1052. Remonstrance Against a Pending Bill. To the Legislature of the State of New York : The undersigned, citizens [and taxpayers] of the city of New York, re- spectfully remonstrate against the passage of any bills now pending before the Legislature, by which the franchise or right of constructing railroads in the city of New York is granted to private individuals. This remonstrance is on the ground that [setting forth the reason]. [Date.] [Signatures.] CHAPTEE LVL LETTERS OF CREDIT. Letters op credit are of two kinds, general and special. A special letter of credit is addressed to a particular individual by name, and is confined to him, and gives no other person a right to act upon it. A general letter, on the contrary, is addressed to any and every person, and therefore gives any person to whom it may be shown, authority to advance upon its credit. A privity of contract springs up between him and the drawer of the letter and it becomes, in legal effect, the same as if addressed to him by name.(a) (a) Uoior Bank v. Coster, 3 N. Y. (3 Comet.), 20S. 534 ABBOTTS' FOEMS. Letters of Credit. The language of a letter of credit should be well considered in reference to the point whether the writer intends to confine it to one or more transactions amounting to a specified sum, and beyond that extent, to cease, or whether he will allow it to stand as a continuing guaranty, so that the person for whose benefit it is given may continue to make new transactions under it, by paying what he first incurs. If the writer desires that notice should be given him of transactions had under the guaranty, it is best to express that condition in the letter. If ex- pressed, the condition must be steadily pursued. There is some conflict of authority as to whether notiee is necessary, if not required by the tenor of the letter.(ft) In order to render the writer liable, the terms of the letter must be strictly pursued. If it specifies the amount or the time of credit, he cannot be held foi a greater amount, or for a debt incurred at a longer credit. FAOB 1053. General letter of guaranty 534 1054. General letter of credit and guaranty 534 1055. Special letter 584 1053. General Letter of Guaranty. I hereby guarantee to any person advancing money or selling goods to A. B., not exceeding dollars, the payment thereof, at the expiration of the credit which shall be given. [Date.] [Signature,] [Address] to A. B.(c) 1054. General Letter of Credit and Guaranty. (d) Sir — We hereby agree to accept, and pay at maturity, any draft or drafts on us at sixty days' sight, issued by Messrs. 0. T>. &, Co., of your city, to the extent of $25,000, and negotiated through your bank. We are [etc.] [Date.] [Signature.] I hereby guarantee the due acceptance and payment of any draft issued in pursuance of the above credit. [Signature of guarantor.] [Date.] 1055. Special Letter. To A. B. — Sir — I will be responsible' for goods [limiting the hind, if de- sired] to be sold [or, money to be lent] by you to 0. D., to an amount not exceeding in the aggregate dollars [or, if desired to give a continuing guaranty, not exceeding an indebtedness of dollars at any one time]. [Date.] [Signature.] (6) Compare Adams v. Jones, 12 Pet. advances, etc., on the faith of it, giving S. Ct., 207 ; Douglass v. Reynolds, 7 lb., notice to the writer. Adams v. Jones, 12 126 ; 12 lb., 497 ; Louisville Manuf. Co. v. Pet. S. Ct., 207 ; Kussell ». Wiggin, 2 Story Welch, 10 How. S. Ct., 461 ; and Smith v. C. Ct., 218. Darin, 6 Hill., 543; Union Bank v. Cos- (d) This form is sustained by Union ter, 8 N. Y. (3 Comst.), 208. Bank ■«. Coster, 8 W. Y. (3 Cumit.), 208. (e) Such a letter, though addressed to Such an instrument, not addressed to any the party for whose benefit it is given, particular bank, is a general letter, not enures as a contract with any person to limiting the party for whose benefit it is whom it is shown, and who makes the issued, to one bank or to one transaction. MANUFACTURING COMPANIES. 535 Licenses. CHAPTEE LVII. LICENSES. A license is an authority or permission to do some act affecting one's prop- erty, without granting any interest or right in the property. It is distinguished from a power, which involves to some extent the idea of the relation of prin- cipal and agent ; and from a grant, which transfers some interest in the prop- erty. A license, relating even to real property, may be given by parol ; but if it is desired to give any interest in the property, or any permanent right, the appropriate instrument is a Deed. A license is revocable at the will of him who grants it ; and though it is a justification for acts done meanwhile, yet when revoked, the protection which it gave ceases. It is only where a license is annexed as an incident to a valid grant, that it is deemed irrevocable. Hence, if a mere temporary permission is sought, such as to go upon the land and cut wood, an oral liceUse will suffice to protect from a charge of trespass ; but if any continuous right is desired, a grant should be made. The subject of Licenses under the Excise Laws is treated of in the chapter of Excise. CHAPTEE LYIH. MANUFACTURING COMPANIES. In many of the States, general laws have been adopted authorizing com- panies formed for various business purposes, chiefly Manufacturing and Min- ing, to become incorporated without special charters, by complying with cer- tain conditions. The general law of New York authorizes the incorporation in this way of companies for carrying on any kind of manufacturing, mining, mechanical or chemical business ;(a) for the purpose of raising vessels or other heavy bodies ;(&) collecting and selling ice(c) and mineral waters ;(d) and for the purpose of printing and publishing books, pamphlets and newspapers.(e) The forms used under the laws of Pennsylvania will be found in the chapter of Mining and Oil Companies. 1056. Certificate of incorporation for business within the State 536 1057. The same ; for business to be carried on wholly or partly without the State. 536 1058. Acknowledgment - 536 (a) Laws of 1848, 54, eh. 40 ; 1853, 705, (J1 Laws e/1851, 16, oh. 14. ch. 333; 1854, 469, eh. 201; 1 Laws of (6) Laws of 1855, 516, eh. 801. 1857, 46, oh. 29 ; Laws of 1861, 467, oh. (d) Laws of 1863, 87, ch. 68. 170. <«" Laws of 1857, 549, ch. 262. 536 ABBOTTS' FOEMS. Formation of Manufacturing Companies. 1056. Certificate of Incorporation for Business Within the State. State of New York, ) County of ) We, the undersigned [naming at least three corporators], do by these presents, pursuant to and in conformity with the act of the Legislature of the State of New Tork, passed on the seventeenth day of February, one thousand eight hundred and forty-eight, entitled "An Act to authorize the formation of corporations for manufacturing, mining, mechanical or chemi- cal purposes," and the several acts of the said Legislature amendatory there- of, associate ourselves together, and form a body politic and corporate, and do hereby certify : 1. That the corporate name of the 'said company is [here insert name in full]. 2. That the objects for which the said corporation is formed are as fol- lows [here state them with precision, out in general terms]. 3. That the capital stock of the said corporation shall be dollars, which shall l*e divided into shares of dollars each. 4. That the said corporation shall commence on the day of , in the year one thousand eight hundred and , and shall continue in ex- istence for the term of years. 5. That the number of trustees of the said corporation shall be , whose names are as follows, and who shall manage the concerns of the said corporation for the first year. [Names ] * 6. That the names of the town and county [or, towns and counties] in which the operations of said company are to be carried on are [here desig- nate them, and if more than one is named, add:] and the principal place of business of the said corporation shall be in the , of , in the county of , and State of New York. [Signatures.] 105T. Certificate of Incorporation, Where Business, or a Part of It, is to be Carried On Out of the State. [As in preceding form to the *, concluding thus:] 6. The said company is formed for the purpose of carrying on some part of its business out of the State of New York — namely, at [insert name of place], and the names of the town and county in which the principal part of the business of the said company is to be transacted are [insert names of town and county]. [Signatures.] 1058. Acknowledgment of Certificate of Incorporation. Counit of ; ss. On this da)' of , a. d. 18 , before me personally appeared [insert names of subscribers to the certificate], to me known to be the indi- viduals described in the foregoing certificate, and they severally before me signed the said certificate, and acknowledged that they signed the same for the purposes therein mentioncil. [Signature and title of officer.] MARRIAGE AND MARRIAGE SETTLEMENTS. 537 General Principles. CHAPTER LIX. MARRIAGE AND MARRIAGE SETTLEMENTS. Marriage, in the eye of the Ian is simply a civil contract, differing from other contracts only in this, that it cannot be rescinded at the will of the par- ties. Formal solemnization by a clergyman or magistrate is not essential. An agreement by the parties, made in words relating to the present (as distin- guished from a contract to marry in the future) has been declared by high authority to constitute a valid and complete marriage without either consum- mation or official solemnization. I a) In some of the States, however, the statutes require notice of intended mar- riages to be given, and licenses to be taken out ; the details of the regulations adopted in this regard varying very much in different States. By the common law, infants may marry — in the case of males, at the age of fourteen, and females at twelve — and the consent of parents is not necessary to the validity of the marriage.(6) Solemnization. — For the more convenient preservation of evidence of mar- riage, the statutes^) provide, that for the purpose of being registered and authenticated, marriages must be solemnized only by the following persons : 1. Ministers of the gospel and priests of every denomination. 2. Mayors, re- corders and aldermen of cities ; and, 3. Judges of the County Courts and jus- tices of the peace. When solemnized by a minister or priest, the ceremony is to be according to the forms and customs of the church or society to which he belongs. When solemnized by a magistrate, no particular form is necessary except that the parties shall solemnly declare, in the presence of the magistrate and the attending witness, that they take each other as husband and wife. In either case, there must be at least one witness present at the ceremony. He by whom the marriage is solemnized must furnish, on request, to either party, a certificate signed by him, specifying : 1. The names and residences of the parties, and that they were known to him, or were satisfactorily proved by the oath of a person known to him, to be the persons described in such cer- tificate, and that he had ascertained that they were of sufficient age to contract marriage. 2 The name and residence of the attesting witness or witnessess. 3. Tue time and place of the marriage. The certificate shall also state that, after -iue inquiry made, there appeared no lawful impediment to such marriage. Su^h certificate (which, if signed by a minister, must be acknowledged be- fore a magistrate) may be filed with the clerk of the city or town of the mar- riage, and entered by him ; and the original certificate, and the entry thereof, and a copy of either, are presumptive evidence of the fact of the marriage. As to contracts between husband and wife, and articles of separation, see the chapter on Husband and Wipe. (a) Fenton v. Reed, 4 Johns., 52 ; Starr This rule ia in force in the State of New v. Peck, 1 Bill, 270; Clayton v. Wardell, York, except that by the Laws of !841, 4 N. Y. (4 Comet.), 230 ; Caujolle v. Ferrie, chap. 237, a marriage against the consent 26 Barb., 177 ; Cheney v. Arnold, 15 N. Y. of the parent of the female may bo ad- (1 Smith), 345 ; Jackson ». Winne, 7 judged void, if the female was, at the time Wend., 47. See, however, to the con- of the marriage, under the ago of four- trary, Jaques v. ,'ublic Administrator, 1 teen. Bennett o. Smith, 21 Barb., 439. Brad/., 499. («) 2 Hev. Stat, of N. Y., 189, §§ 8, (b) 1 Bl, Com 348 ; 2 Kent's Com., 78. 19. 538 ABBOTTS' FOKMS. License. Solemnization. Certificate. PAGE 1059. Marriage license 538 1060. Short form of solemnization for magistrates 538 1061. Marriage certificate 538 1062. Ante-nuptial settlement 589 1059. Marriage License. State of , ) County of . ) License ia hereby granted to any person authorized to solemnize mar- riages according to the laws of said State, to join in marriage A. B. and O. L\, of the county aforesaid ; and the person joining them in marriage is also required to make due return of the certificate annexed, to , within days, of the names of the parties, time and place of marriage and by*whom solemnized. In testimony whereof, I have hereunto set my hand and official seal, at , in said county, this day of , a. d. 18 . [Seal.] [Signature and title.] 1060. Short Form of Solemnization of Marriage, for Magistrates. The magistrate may direct the parties to join their right hands, and will then say : " By this act you do take each other for husband and wife, and solemnly promise and engage, in the presence of this witness [or, these witnesses], to love, honor, comfort and cherish each other, as such, so long as you both shall live : Therefore, in accordance with the laws of the State of , I do hereby pronounce you husband and wife." 1061. Marriage Certificate. This certifies, that, on the day of , in the year of our Lord one thousand eight hundred and sixty , A. B., of , in the State oi , and O. L\, of , in the State of , were by me united in marriage, at [naming the town or city], in the county of , ac- cording to the laws of the State of , and in presence of the witness [or, witnesses] below named. And I do further certify, that the said A. B. and 0. D. are known to me [or, were satisfactorily proved, by the oath ot O. P , known to me], to be the persons described in this certificate ; that I ascertained, previous to the solemnization of the said marriage, that the said parties were of sufficient age to contract the same ; and that, after due inquiry by me made, there appeared no lawful impediment to ouch marriage. [Signatures of witnesses.] [Signature and title.] [If certified by minister, add acknowledgment or proof as in Form on p. 55, 59 or 60.] MARRIAGE AND MARRIAGE SETTLEMENTS. 539 Settlement Before Marriage. 1062. Ante-nuptial Settlement of Real Estate of Intended Wife, Reserving General Power of Disposition, the Legal Estate Being Vested in the Trustee.{d) This indenture, made the day of , 18 , between A. B. [the intended husband], of , of the first part, 0. D. [the intended wife], of , of the second part, and Y. Z. [the trustee], of , of the third part, witnesseth : That, whereas a marriage is intended to be had between the said parties of the first and second parts ; and the said party of the second part is seized and possessed of a large estate situate in , and it is agreed by and between them and the party of the third part, that the said estate should be settled upon the trusts and for the purposes berein- after declared: Now, thebefoee, in consideration of the said intended marriage, and of the sum of o n e dollar to the said party of the second part, by the said party of the third part paid, the receipt whereof is hereby confessed and acknow- ledged, the said party of the second part hath granted, bargained and sold, and by these presents doth grant, bargain and sell unto the said party of the third part, his successors and assigns, all that [here describe Oie property] : To have AJ.D to hold the said tenements and hereditaments, with their appur- tenances, unto the said party of the third part, his successors and assigns, +o such uses and purposes as are hereinafter mentioned — to wit : For the use and benefit of the said party of the second part, until her said intended marriage shpll take place, and from and after the solemnization thereof, then upon trust from time to time to apply to the use of the said party of the second part, all the interest, dividends and annual produce thereof, during the joint lives of the said parties of the first and second parts, to her own proper use and benefit, and upon her own proper receipt for the same, notwithstanding her coverture, to the intent that the same may not be at the disposal or under the control of the said party of the first part, or in any manner subject to his debts and engagements ; and from and imme- diately after the decease of the said party of the first part, in case the said party of the second part shall survive him, then upon trust for the use and benefit of the said party of the second part, her executors, administrators and assigns ; and upon trust in such case to grant and convey the trust estate, and every part thereof, to the said party of the second part abso- lutely, or to grant and convey the same to such person or persons as she, by any writing to be by her duly executed, may limit, direct and appoint. But in case the said party of the first part shall survive the said party ot the second part, then upon trust from and immediately after her decease, to apply to the use of the said party of the first part, all the interest, divi- dends and annual produce thereof, from time to time, during his Datura] life, to and for his own use and benefit; and on the decease of the said party of the first part, to pay and divide the capital or principal of the said trust-fund, and to grant and convey all her real estate to and (d) This form, which we take from Willard on Beat Estate, etc., 627, is sustained oy Wright v. Tallmage, 15 N. Y., 807. 5iO ABBOTTS' FORMS. Mechanics' Lien. among the lawful children of the said party of the second part, and their issue, in such proportions, shares, manner and form as she, by any writing, under her hand subscribed in the presence of two or more witnesses, shall direct and appoint; and for want of such appointment, to and among the said children of the said party of the second part, and the lawful issue of such of them as may be deceased, according the rules of descent and of dis- tribution in cases of intestacy. But if there be no issue of the said party of the second part then surviving, then, upon trust, to pay and dispose of the said capital or principal, and grant and convey the said real estate accord- ing to the direction and appointment of the said party of the second part, and for want of such appointment, to arid among her then surviving nephews and nieces, children of her sisters and the lawful issue of such of them as may be deceased, according to the like rule of descent and distri- bution. {Power to sell and reinvest, if added, may oe as follows :] And the said party of the second part doth hereby grant and agree that the said party of the third part, upon the written request of her, the said party of the second part, may grant and convey the whole or any designated portion of the said estate upon such terms as she shall direct, and receive the con- sideration money therefor, and invest the same for the like uses and pur- poses hereinbefore declared, with respect to the original trust. In witness whekeof, the parties to these presents have hereunto inter- changeably set their hands and seals, the day and year first above written. S'gned, sealed and delivered ) [Signatures and seals.] in the presence of > [Signature of witness.'] CHAPTEE LX. MECHANICS' LIEN". By the statutes of New York, a proceeding is afforded in many of the coun ties of the State, whereby mechanics and material men may secure a lien for their services, etc., upon the land and buildings for which the same are fur nished. The proceedings vary in different counties. The following notice is the form in use under the act of 1863 (p. 859, ch. 583), which relates to the city of New York. PAGB 1063. Notice of lien 541 1064. Verification 64: MINING ANI> OIL COMPANIES. 541 Notice of Lien. Formation of Company. 1063. Notice Under Mechanics' Lien Law. To , Esquire, clerk of the city and county of New York : Sie — Please to take notice, that I, A. B., residing at No. , in street, in , have a claim against Y. Z., of , owner [or, contractor] amounting to the sum of dollars, due to , [or if not due, state ■when it will become due], and that the claim is made for and on account of [here state the ground of claim] furnished and done before the whole work on said building was completed, and which work and materials were done and furnished within three months of the date of this notice ; and that Buch work and materials were done and furnished in pursuance of a con- tract for , between and , which building is owned by , and is situated in the Ward of the city of New York, on the side of street, and is known as No. . The following is a diagram of said premises [here insert diagram]. And that I have and claim a lien upon said house or building, and the appurtenances and lot on which the same shall stand, pursuant to the provisions of an act of the Legislature of the State of New York, entitled *' An Act to secure the pay- ment of mechanics, laborers and persons furnishing materials towards the erection, altering or repairiug of buildings in the city of New York," passed May 5, 1863, and of the acts amending the same. [Signature.] [Date.] 1064. Verification. Oitt and County of New Yokk, ss. A. B. being duly sworn, says, that he is the claimant mentioned in the foregoing notice of lien ; that he has read the said notice, and knows the contents thereof; and that the same is true to his own knowledge, except as to the m itters therein stated on information and belief, and as to thot'-e matters he believes it to be true. [Signatured] Swoen [etc., as in Form 858]. CHAPTEE LXI. MINING AND OIL COMPANIES. '1 «B statutes of several of the States authorize associations'of persons for carrying on manufacturing, mechanical, mining and other businesses, to become incorporated for the purpose, by making and filing u certificate in a manner prescribed. The following forms are drawn for Mining Companies and Oil Companies under the Law of Pennsylvania. They may easily be adapted to the case of any other business authorized by the statute. They will serve as a sufficient guide in drawing certificates of association under the laws of any other State, taking care to insert whatever other particulars the laws in question require 542 ABBOTTS' FORMS. Certificate of Association of Mining Company. PASS 1065. Certificate of association of mining corporation, under the general statute of Pennsylvania of 1851 : 542 1066. Acknowledgment of the same 543 1067. Certificate of attorney-general 543 1068. Certificate of association of an oil company, formed under the statute of 1 863 548 1069. Certificate of business and of capital paid in, to be filed before commencing operations 544 1065. Certificate of Association of Mining Corporation Under the General Statute of Pennsylvania of 1854.(a) To all to whom it may concern : We. the undersigned [here insert names] citizens of the United States of America, joint owners and tenants in common of the mineral lands in Penn- sylvania hereinafter described, desiring to form a company under the pro- visions of an act of the General Assembly of the State of Pennsylvania, en- titled "An Act to enable joint tenants, tenants in common and adjoining owners of mineral lands in this Commonwealth to manage and develop the same," passed on the 21st April, 1854, and the various supplements there- to, for the purpose of [here state the ooject — e. g., thus :] developing and im- proving the said mineral lands, and of engaging in and carrying on the mining and preparing for market, coal, fire-clay and other minerals found on or in thu said lands, manufacturing the products of the same, and selling or conveying the same, and the products thereof, to market, in compliance with the provisions thereof: Do certify as follows: First. The corporate name of the said company shall be [stating name of it], and the term of its existence years [not exceeding twenty]. Second. The objects for which the company is formed are the developing and improving the mineral lands hereinafter particularly described, and mining of and preparing for market coal, fire-clay and other minerals found on or in the said lands, manufacturing the products of the same, and the selling or conveying the same, and the products thereof, to market. Third. '1 he lands owned by us consist of tracts, and are located in the counties of and , in the State of Pennsylvania, and contain together acres, or thereabouts, and the same are described as follows [here insert a full description, as in a deed]. Fourth. The said lands have been divided into shares, and the par value or amount of each share is dollars. Fifth. The residences of the owners and the number of shares owned by each of us is as follows — viz. : (o) This and the following Pennsylva- edition of the Mining Laws of Pennsyl- oia foruio are ftom Nettleton's pamphlet vania. MINING AND OIL COMPANIES. 548 Certificates of Formation. Sixth. The chief operations of the company are to be carried on in County aforesaid. Seventh. The number of directors shall be , and the said [here insert names] shall he directors, who shall manage the affairs of the company until the next annual election. In testimony whereof, we have hereunto set our hands and seals, this day of , a. d. 18 . [Signatures and seals. (&)] State of County of 1066. Acknowledgment of the Foregoing. 'j-ss. Be it kemembeked, that on this day of , a. d. eighteen hundred and , before me, M. N., one of the justices of the peace in and for said county [or, a commissioner of the State of Pennsylvania, duly appointed and qualified according to the laws thereof, to take acknowledgments, etc., to be used and recorded therein], personally appeared the foregoing named [names of the signers}, who in due form of law severally acknowledged the foregoing certificate to he their act and deed, and desired that the same might be recorded as such. In witness wheeeof, I have hereunto set my hand [and affixed my official seal] the day and year first above written. [Signature and title.] [Seal, if any.] 1067. Certificate oy Attorney- General. State of Pennsylvania, Office of the Attorney-General. I, M. M., attorney-general of the State of Pennsylvania, certify that the above certificate has been submitted to and examined by me, nnd is properly drawn and signed, and that the same is in conformity with the constitation and laws of this commonwealth. In testimony wiiebeof, I have hereunto set my hand, this day of , A. r. 18 . [Signature and title.] 1068. Certificate of Association of an Oil Company, Formed Under the Statute of 1863. To all whom it may conoern: We, the undersigned [inserting names], citizens of the United States of America, desiring to form a corporation under the provisions of an act of the General Assembly of the State of Pennsylvania, entitled "An Act relating to corporations for mechanical, manufacturing, mining and quarrying purposes," passed on the eighteenth day of July, a. d. eighteen hundred and sixty-three, and the various sup- plements thereto, have associated ourselves together, and do hereby associate ourselves together, under the provisions of the said acts and the supplements thereto, in the manner following : (6) A scroll is a sufficient seal for Pennsylvania. 544 ABBOTTS' FORMS. Certificates of Oil Companies. First. The corporate name of the said corporation or company shall he 'stating the name}. Second. The purposes for which the said corporation is established are [here state the object— e. g., thus :] the carrying on the mining, boring and digging for, or otherwise obtaining from the earth, petroleum, rock or car- bon oils, coal, salt and other minerals ; manufacturing and vending the same in the crude and refined state; and the manufacturing, forwarding . and vending lumber and barrels, in compliance with the provisions of the said act and the supplements thereto. Third. The place within which said corporation is established is the township of , in the county of , in the State of Pennsylvania. Fourth. The amount of the capital stock of the said corporation shall be, and is dollars, which shall be divided into shares of the par value of dollars each. In testimony whereof, we have hereunto set our hands and seals, the day of , a. d. eighteen hundred and [Signatures and seals.](c) [Add acknowledgment as in Form 1066.] 1069. Certificate of Business and of Capital Paid In, to oe Filed, Before Commencing Operations.(d) Cebthtoate of the Company of To whom it may concern: Be it known that the undersigned, the presi- dent, treasurer and directors of the Company of , a corporation organized under the provisions of an act of the General Assembly of the State of Pennsylvania, entitled " An Act relating to corporations for mechanical, manufacturing, mining and quarrying purposes." parsed on the eighteenth day of July, a. d. 1863, and the various supplements thereto, do hereby, in compliance with the provisions of the said act and of the various supplements thereto, certify in manner following: First. The corporate name of the said company is Second. The purposes of the said corporation or association are [here state them as in the articles — e. g., thus :] the carrying on the mining, boring and digging for, or otherwise obtaining from the earth, petroleum, rock or carbon oils, coal., salt and other minerals ; manufacturing and vending the same in the crude and refined slate; and the manufacturing, forwarding and vending lumber and barrels, in compliance with the provisions of the said act and the supplements thereto. Third. The principal office of business of the said corporation or as- sociation is in the city of , in the State of ; the lands belonging to the said corporation are situated in the township of , in the county of , in the State of Pennsylvania, and the mining and other aforesaid operations of the said corporation are to be conducted and carried on in the township of (c) A soroll is a sufficient seal for Penn- (d) Required by the act of July 18, 1863, sylvauia. § 81. It must be sworn to. MORTGAGES. 545 General Principles. Fourth. The amount of the capital stock of the said corporation or association is dollars, and the amount of such capital stock already paid in is dollars. Fifth. The number of shares of capital stock in the said corporation or association is , and the par value of each one of the shares in the said corporation is dollars. Sixth. The officers of the said corporation, duly chosen under the said act and the supplements thereto, are the following — viz., A. B., president; C. D., E. F., G. H., directors ; and J. K., clerk, secretary and treasurer. In testimony whereof, we, the undersigned, the president, treasurer and directors aforesaid of said corporation or association, have hereto set our respective hands, this day of , a. d. 18 . [Signatures and titles.} CHAPTER LXII. MORTGAGES. A mortgage is the conveyance of an estate by way of pledge for the security of debt, and to become void on payment of it. According to the old view, the legal ownership was vested in the creditor ; but in equity, and the courts of law adopt the same rule now, the mortgagor remains the actual owner, until he is debarred by his own default or by judicial decree. In this chapter, mortgages of real property only are treated ; those relating to personal property, being subject to somewhat different rules, are treated under Chattel Mortgages. The usual form of a mortgage is a deed, with terms purporting to convey the land absolutely, followed by other terms expressing that it is to be void if the grantor pays a cprtain sum. This condition is called the defeasance. A power of sale, in case of default, is usually inserted, which enables the mortgagee to enforce payment. The manner of foreclosure of the mortgage may be either by an action, or by advertisement according to the statute, as is stated in the chapter of Foreclosure. A mortgage may be made either with or without a perspnal promise to pay the debt. If no such promise is expressed, the mortgage does not render the mortgagor liable for the sum secured, but only gives a lien on the property, It is usual not only to insert a covenant in the mortgage to pay the debt, but to give a bond or note for it, and to recite the fact in the mortgage, and state that the mortgage is given as collateral to the personal security. A mortgage may be made to secure a contingent liability or future advances but in such case it ought to be so expressed. A mortgage on which the principal or interest is payable in instalments, may contain a provision that in case of any default the mortgagee may elect to re- quire payment of the whole interest and principal at once. This provision is usually termed an interest clause. Where a considerable part of the value of the mortgaged premises consists in buildings, it is usual to provide that the mortgagor shall keep them insured in a specified sum and assign the policy to the mortgagee. This is called the insurance clause. 35 546 ABBOTTS' FORMS. Mortgages of Ren] Property. * It is not necessary for the wife of a mortgagor to join in executing the mort- gage, if it he given at the same time that the property is conveyed to Mm, and for the purpose of securing purchase-money. In these cases it is usual to state *he fact in the mortgage, by a clause inserted at the end of the description of the premises. Mortgages by peculiar parties, corporations, executors, etc., should be modi- fied slightly, according to the forms given for deeds by such parties. Mortgages should he acknowledged or proved as deeds are, for the forms of which see the chapter of Acknowledgment. PAGE 1070. Short form 546 1071. Another form to secure note 547 1072. Mortgage, with interest and insurance clause 547 1073. Mortgage on lease 549 1074. Mortgage on building lease to secure advances 551 1075. Mortgage to secure purchase-money 554 1076. Mortgage to secure indorser 554 1077. Mortgage to Becure an unliquidated demand 554 1078. Mortgage in exercise of a power of appointment 555 1079. Stipulation in a mortgage given to trustees, that it shall be deemed purely collateral 555 1080. Stipulation as to paying off in advance 556 1070. Short Form. This indenture, made the day of , in the year one thousand eight hundred and , between A. B., of , in the county of , and State of , merchant, of the first part, and Y. Z., of , in the said county, farmer, of the second part, witnesseth : That the said party of the first part, for and in consideration of the sum of dollars, grants, bargains, sells and confirms unto the said party of the second part, and to his heirs and assigns, all [here insert description ; see Forms 722-739] ; together with all and singular the hereditaments and appurte- nances thereunto belonging or in any wise appertaining.* This conveyance is intended as a mortgage, to secure the payment of the sum of dol- lars, in [here state terms of payment, as in Forms 370-374], according to the condition of a certain bond, dated this day, and executed by the said party of the firtt part to the said party of the second part; and these pres- ents shall be void if such payment be made. But in case default shall be made in the payment of the principal or interest, as above provided, then the party of the second part, his executors, administrators and assigns, are hereby empowered to sell the premises above described, with all and every of the appurtenances, or any part thereof, in the manner prescribed by law ; and out of the money arising from such sale, to retain the said prin- cipal and interest, together with the costs and charges of making such sale ; and the overplus, if any there be, shall be paid by the party making such oale, on demand, to the party of the first part, his heirs or assigns. I« witness whereof, the said party [or, parties] of the first part has [or, have] hereunto set his hand and seal [or, their hands and seals], the day uud year first above written. [Signature and seal.] Signed, sealed and delivered) in the presence of J [Signature of witness.] MORTGAGES. 547 Common Forms. 1071. Another Form; To Secure Note. {a) To all People to whom these presents shall come, greeting : Know ye, that I, A. B., of , for the consideration of dol- lars, received to my full satisfaction, of Y. Z., do give, grant, bargain, sell and confirm unto the said Y. Z. [here insert .lescription of premises): To have and to hold the above-granted and bargained premises, with tho appurtenances thereof, unto the said grantee, his heirs and assigns, forever, to his and their proper use and behoof. And also, I, the said grantor, do, for myself, my heirs, executors and administrators, covenant with the said grantee, his heirs and assigns, that at and until the ensealing of theae pres- ents, I am well seized of the premises as a good indefeasible estate in fee- simple; and have good right to bargain and sell the same in manner and form as above written ; and that the same are free from all encumbrances whatsoever. And furthermore, I, the said grantor, do, by fhe;e presents, bind myself and my heirs forever, to warrant and defend the above-granted and bar- gained premises to him, the said grantee, and his heirs and assigns, against all claims and demands whatsoever. In witness whereof, I have hereunto set my hand and seal, this day of , a. d. 18 . The condition of this deed is such, that whereas the said grantor is justly indebted to the said grantee in the sum of dollars, as evidenced by his promissory note for said sum, of even date herewith, payable to the said grantee or order after date, with interest : Now, therefore, if said note shall be well and truly paid, according to its tenor, then this deed shall be void ; otherwise, to remain in full force and effect. Signed, sealed and delivered ) [Signature and Seal] in presence of J [Signatures of witnesses.] 1072. Mortgage With Interest and Insurance Clause. This indenture, made the day of , in the year one thousand eight hundred and , between A. B., of the city, county and State of , and C. B., bis wife, parties of the first part, and Y. Z„ of the same place, party of the second part: Whereas, the said A. B. is justly indebted to the said party of the second part, in the sum of dollars, lawful money of the United States, secured to be paid by his cer- tain bond or obligation, bearing even date with these presents, in the penal sum of dollars, lawful money, as aforesaid, conditioned for the pay- ment of the said first-mentioned sum of dollars, lawful money, as aforesaid, to the said party of the second part, his executors, administrators or assigns, on the day of , which will be in the year one thousand eigh* hundred and , and interest thereon to be computed from (o) This is the form in use in Connecticut. 548 ABBOTTS' FORMS. Mortgage with Interest and Insurance Clause. the date thereof, at and after the rate of seven per cent, per annum, and to be paid semi-annually — to wit: on the day of and on the day of in each and every year, until the whole of the said principal sum he paid; and it is thereby expressly agreed, that should any default be made in the payment of the said interest, or of any part thereof, on any day whereon the same is made payable, as above expressed ; and should the same remain unpaid and in arrear for the space of days,(J) then, and from then"eforth — that is to say, after the lapse of the said days — the aforesaid principal sum of dollars, with all arrearage of interest thereon, shall, at the optiun of the said party of the second part, his execu- tors, administrators or assigns, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired, any thing therein before contained to the contrary thereof in any wise notwithstanding, as by the said bond or obligation, and the condition thereof, reference being thereunto had, may more fully appear. Now, this indenture witnesseth, that the said parties of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, accord- ing to the true intent and meaning thereof, and also for and in considera- tion of the sum of one dollar, to them in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, released, conveyed and confirmed, and by these presents do grant, bargain, sell, alien, release, convey and confirm unto the said party of the second part, and to his heirs and assigns forever, all \here insert description] : Togethkk witii all and singular the tenements, hereditaments and appur- tenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and also all the estate, right, title, interest, dower, right of dower, property, possession, claim and demand whatsoever, as well in law as in equity, of the said parties of the first part, of, in and to the same, and every part and parcel thereof, with the appurtenances: To have and to hold the above-granted and described premises, with the appurtenances, unto the said party of the second part, his heirs and assigns, to his and their own proper use, benefit and behoof forever ; provided always, and these presents are upon this express condition, that if the said parties of the first part, their heirs, executors or administrators, shall well and truly pay unto the said party of the second part, his executors, administrators or assigns, the said sum of money mentioned in the condition of the said bond or obliga- tion, and the interest thereon, at the time and in the manner mentioned in the said condition, according to the true intent and meaning thereof, that then these presents, and the estate hereby granted, shall cease, determine and be void. And the said A. B., for himself, his heirs, executors and ad- ministrators, does covenant and agree to pay unto the said party of the second part, his executors, administrators or assigns, the said sum of money (J) Usually twenty or thirty days. MORTGAGES. 549 Mortgage on Lease. and interest, as mentioned above and expressed in the condition of the said bond. And if default shall be made in the payment of the said sura of money above mentioned, or the interest that may grow due thereon, or of any part thereof, that then and from thenceforth it shall be lawful for the said party of the second part, his executors, administrators and assigns, to enter into and upon all and singular the premises hereby granted or intend- ed so to be. and to sell and dispose of the same, and all benefit and equity of redemption of the said parties of the first part, their heirs, executors, ad- ministrators or assigns therein, at public auction, according to the act in such case made and provided ; and as the attorney of the said parties of the first part, for that purpose by these, presents duly authorized, consti- tuted and appointed to make and deliver to the purchaser or purchasers thereof, a good and sufficient deed or deeds of conveyance in the law for the same, in fee-simple, and out of the money arising from such sale, to re- tain the principal and interest which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the purchase-money (if any there shall be) unto the said A. B., party of the first part, his heirs, execu- tors, administrators or assigns; which sale, so to be made, shall forever be a perpetual bar, both in law and equity, against the said parties of the first part, their heirs and assigns, and all other persons claiming or to claim the premises, or any part thereof, by, from or under them, or either of them. And it is expressly agreed by and between the partie-i to these presents, that the said A. B., party of the first part, shall and will keep the buildings erected and to be erected upon the lands above conveyed, insured against loss and damage by fire, in at least the sum of dollars [or, in an amount] and by insurers approved by the said party of the second part, and as- sign the policy and certificates thereof to the said party of the second part; and in default thereof, it shah" be lawful for the said party of the second part to effect such insurance, and the premium and premiums paid for effecting the same shall be a lien on the said mortgaged premises, added to the amount of the said bond or obligation, and secured by these presents, and payable on demand, with interest, at the rate of seven per cent, per annum. In witness [etc., as in Form 1070]. 1073. Mortgage on Lease. This indenture, made the day of , in the year one thousand eight hundred and , between A. B., of , in the county of , and State of , merchant, of the first part, and Y. Z., of , in the said county, farmer, of the second part : Whebkas, M. K, of , did, by a certain indenture of lease, bearing date the day of , in the year one thousand eight hundred and , demise, lease and to farm let unto the said A. B., and to his executors, administrators and assigns, all and singular the premises hereinafter mentioned and described, together with their ap- purtenances: To have and to hold the same unto the said A. B., and to his executors, administrators -and assigns, for and during and until the full 550 ABBOTTS' FORMS. Morteasre on Lease. end and term of years, from the day of , and fully to be complete and ended, yielding and paying therefor unto the said M. K., and to his heirs, executors, administrators or assigns [or, if the lessor be a, corpo- ration, say, to their successors or assigns], the yearly rent or sum of dollars [here set forth the terms of the lease, or, better, refer to the instru- ment upon record], And whereas the said party of the first part is justly indebted to the said party of the second part, in the sum of dollars, lawful money of the United States of America, secured to be paid by his certain bond or obligation bearing even date with these presents, in the penal sum of dollars, lawful money as aforesaid, conditioned for the payment of the said first-mentioned sum of dollars, as by the said bond or obligation and the condition thereof, reference being thereunto had, may more fully appear. Now, this indentuee witnesseth, that the said party of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, accord- ing to the true intent and meaning thereof, and also, for and in considera- tion of the sum of one dollar, to him in hand paid, by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, as- signed, transferred and set over, and by these presents does grant, bargain, sell, assign, transfer and set over unto the said party of the second part, all [here insert description of premises as in lease]. Togethee with all and singular the edifices, buildings, rights, members, privileges and appurte- nances thereunto belonging or in any wise appertaining. And also, all the estate, right, title, interest, term of, years yet to come and unexpired, prop- erty, possession, claim and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in and to the said demised premises, and every part and parcel thereof, with the appurtenances. And also, the said indenture of lease, and every clause, article and condition therein ex- pressed and contained : To hate and to hold the said indenture of lease, and otlier hereby granted premises, unto the said party of the second part, his executors, administrators and assigns, to his and their only proper use, benefit and behoof, for and during all the rest, residue and remainder of the said term of years yet to come and unexpired; subject, nevertheless, to the rents, covenants, conditions and provisions in the said indenture of lease mentioned. Provided always, and these presents are upon this ex- press condition, that if the said party of the first part shall well and truly pay unto the said party of the second part, the said sum of money men- tioned in the condition of the said bond or obligation, and the interest thereon, at the time and in the manner mentioned in the said condition, according to the true intent and meaning thereof, that then and from thenceforth these presents and the estate hereby granted shall cease, de- termine and be utterly null and void, any thing hereinbefore contained to the contrary in any wise notwithstanding. And the said party of the first part does hereby covenant, grant, promise and agree to and with the said party of the second part, that he shall well and truly pay unto the said party of the second part, the said sum of money mentioned in the condi- MORTGAGES. 551 Mortgage on Lease. don of the said bond or obligation, and the interest thereon, according to the condition of the said bond or obligation. And that the said premises hereby conveyed now are free and clear of all eneumbrauoes whatsoever, and that he has good right and lawful authority to convey the same in manner and form hereby conveyed. And if default shall be made in the payment of the said sum of money above mentioned, or in the interest which shall accrue thereon, or of any part of either, that then and from thenceforth it shall be lawful for the said party of the second part, and his assigns, to sell, transfer and set over, all the rest, residue and remainder of the said term of years then vet to come, and all other the right, title and interest of the said party of the first part, of, in and to the same, at public auction, according to the act in such case made and provided. And as the attorney of the said party of the first part, for that purpose by these pres- ents duly Authorized, constituted and appointed, to make, seal, execute and deliver to the purchaser or purchasers thereof, a good and sufficient assign- ment, transfer or other conveyance in the law, for the same premises, with the appurtenances ; and out of the money arising from such sale, to retain the principal and interest which shall then be due on the said bond or ob- ligation, together with the costs and charges of advertisement and sale of the same premises, rendering the overplus of the purchase-money (if any there shall be) unto the said party of the first part, or his assigns ; which sale, so to be made, shall be a perpetual bar, both in law and equity, against the said party of the first part, and against all persons claiming or to claim the premises, or any part thereof, by, from or under him, them or any of them. In witness [etc., as in Form 1070]. 1074. Mortgage on Premises in Building Lease, to Secure the Repayment of Sums Advanced and to be Advanced to the Lessee, to Enable Him to Com- plete Houses. This indenture, made the day of , between A. B., of, etc., of the one part, and Y. Z., of , of the other part [recite building lease to A. B.]: And whekeas, pursuant to the covenant for this purpose con- tained in the said recited indenture of lease, the said A. B. hath already laid out and expended the sum of dollars in erecting buildings on the said piece or parcel of ground in the said indenture comprised. And wheieas the said A. B. having occasion for the sum of dollars, for the purpose of enabling him to complete the erections and buildings in- tended to be erected on the said piece or parcel of ground, pursuant to the aforesaid covenant as aforesaid, hath applied to and requested the said Y. Z. to lend him the same, which he, the said Y. Z., hath agreed to do in two separate sums — that is to say, the sum of dollars immediately before the execution of the^e presents, and the sura of dollars, being the re- mainder of the said sum of dollars, when and so soon as all the erec- tions and buildings already built, and to be erected and built, pursuant to the aforesaid covenant of the said A. B., as aforesaid, shall have been cov- 552 ABBOTTS' FORMS. Mortgage on Lease. eredin, on having the said several sums of dollars and dollars, with interest thereon respectively, secured in manner hereinafter expressed : Now, this indentuke witnesseth, that in pursuance of the said agreement, and in consideration of the sum of dollars, to the said A. B. paid by the said Y. Z., on or immediately before the execution of these presents, and in consideration of the covenant hereinafter contained on the part of the said Y. Z., to advance the further sum of dollars to the said A. B. on all the said erections and buildings being covered in as aforesaid, he, the said A. B., doth hereby assign unto the said Y. Z., his executors, adminis- trators and assigns, all and singular the piece or parcel of ground, heredit- aments and premises comprised in and demised by the said recited inden- ture of lease, and also all erections and buildings which have been erected and are now standing on the said premises (and all the estate, etc.) : To have and to hold the said hereditaments and premises hereby assigned, or expressed so to be, unto the said Y. Z., bis executors, administrators and assigns, for all the residue now unexpired of the said term of years, created by the said recited indenture of lease, subject, nevertheless, to the proviso for redemption hereinafter contained. Pbovided always, and it is hereby agreed and declared, that if the said A. B., his heirs, executors, ad- ministrators or assigns, shall, on the day of , 18 , pay to the said Y Z., his executors, administrators or assigns, fhe sum of dollars, with interest for the same, after the rate of dollars per cent, per annum, computed from the date of these presents, and shall also pay to the said Y. Z., his executors, administrators or assigns, such further sum as shall be hereafter advanced by the said Y. Z., his executors, administrators or as- signs, pursuant to'the covenant of the said Y. Z., in that behalf hereinafter contained, unto or on account of the said A. B., together with interest for the same, after the rate of dollars per cent, per annum, to commence and be computed from the time of advancing the same, at the expiration of six calendar months next after such sum as aforesaid shall be advanced, then and in such case the said Y. Z., his executors, administrators or assigns, shall, upan the request and at the cost of the said A. B., his executors, ad- ministrators or assigns, reassign the said hereditaments and premises hereby assigned, or expressed so lo be, unto the said A. B., his executors, admin- istrators and assigns, or as he or they shall direct. And the said A. B. doth hereby for himself, his heirs, executors and administrators, covenant with the said Y. Z., his executors, administrators and assigns, that the said A. B , his heirs, executors, administrators or assigns, shall and will, on the said day of , a. d. 18 , pay unto the said Y. Z., his executors, ad- ministrators or assigns, the said sum of dollars, with interest for the same, computed from the date of these presents, after the rate of dol- lars per cent, per annum ; and if the said sum of dollars shall not be paid on the said day of , 18 , then shall and will pay to the said Y. Z., his executors, administrators or assigns, interest on the said principal sum, or on so much thereof as shall for the time being remain unpaid, after the rate aforesaid, by equal half-yearly payments, on the day of and the day of , in every year, until the whole of the said prin- cipal sum shall be paid, and also shall and will pay unto the said Y. Z., his MOKTGAGES. 553 Mortgage on Building Lease. executors, administrators or assigns, such sum as shall be hereafter ad- vanced by the said Y. Z., his executors, administrators or assigns, unto or on account of the said A. B., together with interest for the same, after the rate of dollars per cent, per annum, to commence and be computed from the time of advancing the same, at the expiration of six calendar months next after such sum as aforesaid shall be advanced, and if the last- mentioned sum shall not be paid at the expiration of the said six calendar months, then shall and will pay to the said Y. Z., his executors, adminis- trators or assigns, interest for the same, or so much thereof as shall for the time being remain unpaid, after the rate aforesaid, by half-yearly payments, on the same days as are hereinafter appointed for payment of the interest on the said principal sum of dollars [may insert absolute covenants for title by A. B., as in chapter on Covenants ; and a covenant by A. B. for payment of the rents, and for the observance of the covenants in the lease]. And the said A. B. doth hereby for himself, his heirs, executors and administrators, covenant with the said T. Z., his executors, adminis- trators and assigns, that he, the said A. B., shall and will, before the day of , fully and completely finish the erections and buildings hereby assigned or expressed so to be, and all other the erections and buildings which are to be erected and built on the said piece of ground, pursuant to the covenant for this purpose entered into by the said A. B., by the said recited indenture of lease as therein mentioned; and that, in case default in this respect shall be made by the said A. B., then it shall be lawful for the said V. Z., his executors, administrators or assigns, to enter upon and into the said premises hereby assigned, and to complete the same erections and buildings, and any other erections and buildings which ought to be built on the said piece or parcel of ground, pursuant to the aforesaid cov- enant, in such manner as he or they may think proper ; and that in case the said A. B., his executors, administrators or assigns, shall or will, on demand, pay unto the said Y. Z., his executors, administrators or assigns, all sums of money which he or they shall expend thereon, with interest thereon after the rate aforesaid, from the time or respective times of paying or advan- cing or expending tlie same, and that the said premises hereby assigned, or expressed so to be, shall then stand charged with, and not be redeemed or redeemable until full payment shall be made, as well of the moneys which shall be so expended as aforesaid, together with Interest thereon as afore- said, as also of the several other moneys hereby secured. And the said Y. Z. doth hereby for himself, his heirs, executors and administrators, cov- enant with the said A. B., his executors, administrators and assigns, that he, the said Y. Z., when and so soon as all the erections and buildings al- ready erected and to be erected, pursuant to the covenant for that purpose contained in the said recited indenture of lease shall be covered in; and in case, up to that time, all and singular the covenants hereinbefore contained on the part of the said A. B. shall have been duly kept and performed, shall and will lend and advance the said A. B., his executors, administrators and assigns, the further sum of dollars, at interest after tht rate aforesaid, 0:1 the security of these presents. Its' witness [etc., as in Form 1070]. 554 ABBOTTS' FOEMS. Mortgages. 1075. Mortgage for Purchase-Money. [Insert in either of the forms, after the description of the premises:'] being the same preinises conveyed to the said A. B., by the said T. Z. and wife, by deed bearing even date with these presents ; which are given to secure the payment of [part of] the purchase-money of the said premise! 1076. Mortgage to Secure Indorser. [As in Form 1070 to the *, continuing thus:] "Whebeas the said party of the second part, at the request, and for the benefit of the said party of the first part, has, on the day of the date of these presents, indorsed a cer- tain , made hy the said party of the first part, for the sum of dollars, bearing date , and payahle days after , to the order of , at : Now, therefoee, this conveyance is intended to secure the party of the second part for all principal and interest money, costs, charges and expenses which he may be compelled to pay, in consequence of the failure of the said party of the first part to pay and take up the said at maturity; and if the amount of the said , principal and interest, shall be paid by the party of the first part at maturity, then these presents shall become void, and the estate hereby granted shall cease and utterly determine ; but if default shall be made by the said party of the firs 1, part in the payment of the said sum of money, or the interest, or of an} part thereof, at the time hereinbefore specified, and the same be paid by or collected of the party of the second part, the said party of the first part hereby authorizes and empowers the party of the second part, his heirs, executors, administrators and assigns, to sell the said premises hereby granted, at public auction, and convey the same to the purchaser in fee- simple, agreeably to the act in such case made and provided ; and out of the money arising from such sale, to retain such sum, or sums of money, as may have been paid by or collected of the said party of the second part, as above mentioned, together with all costs and charges, and pay the overplus (if any) to the said party of the first part his heirs, executors, adminis- trators or assigns. In witness [etc., as in Form 1070]. 1077. Mortgage to Secure Unliquidated Amount.ic) [Insert:] To have and to hold the atove-described premises with the ap- purtenances to the said party of the second part, his heirs and assigns, for- ever ; provided always, and these presents are upon the express condition that if the said [debtor], his heirs, executors or administrators, shall well and truly pay, and save harmless and indemnify the said W. X. and Y. Z , and each of them, of and from all liabilities which they or either of them may have at any time contracted to or for said [debtor], either as surety, indorse^ (c) This is the for ■ vliioh was held sufficient in the case of Youngs «. Wilson, 27 N. Z, 351 MORTGAGES. 555 Mortgage under Power. Stipulation in Respect to Sureties. guarantor or otherwise, whether now due or yet to- grow due, and shall save harmless the said \V. X. and Y. Z., and each of them, of and from all damages, costs and charges, on account of the same, according to the con- ditions of a certain bond or writing obligatory bearing even date herewith, executed by the said [debtor] to the said parties of the second part, then these presents shall cease and become of no effect; but in case default shall be made in the payment of all or any part of the said liabilities as the same shall become due, at the time or times limited for the payment thereof, then in suoh case it shall be lawful, etc. 1078. Mortgage of Land in ilxercise of a General Power of Appointment. This indenture, made, etc., between A. B., of , and T. Z., of , of the other part \yecite conveyance to mortgagor, to such uses as he might by deed- appoint, and, subject thereto, to uses in strict settlement, and an agree- ment for loan] : Now, this indenture witnesseth, that in consideration [etc., reciting the receipt, etc.], he, the said A. B., in exercise and execution of the power for this purpose given or limited to him by the said recited indenture as aforesaid, and of all other powers (if any) enabling him in this behalf, doth hereby appoint that all [here insert description], shall go, remain and be to the use of the said Y. Z., his heirs and assigns, subject to the proviso hereinafter contained. [Continuing as in other cases.] 1079. Stipulation in a Mortgage Given to Secure the Payment to Trustees of Outstanding Securities Held by Various Creditors, That It Shall Be Deemed Purely Collateral, and Shall Not Affect the Liability of Sureties. [Imert:] And whereas some of the parties to the notes, hills, accept- ances or other securities which the lenders of the said several sums of money hold for the payment thereof, and which parties are liable to the said lenders therein, may, for any thing that is known to the said parties of the second part, or to the lenders of the said money, stand in the relation of sureties to the said the parties of the first part ; and whereas it is not the intention of the said parties to these presents that the said lenders shall, by the operation of these presents, or of the said bonds, relinquish any security which they now hold for the payment of the said money or any part there- of. It is, therefore, expressly stipulated and agreed that these presents, and the said bonds hereinbefore mentioned and referred to, shall be, and shall be regarded, in all courts and places as collateral to the said notes, bills,. acceptances and other securities; and that none of the said notes, bills, acceptances or securities shall be deemed to be merged or extinguished by the execution of these presents, or of the said bonds, but the same are to remain in full force and effect ; and also in case any of the parties liable, or who may become liable, upon the said notes, bills, acceptances or other securities, shall pay the same or any part thereof before the money hereby secured shall become due and payable according to the periods of payment hereinbefore prescribed, and shall, by such payment, or in any otherwise, benome entitled to prosecute the said the Company, or any 556 ABBOTTS' FORMS. Mortgages. Naturalization. other party or parties, upon the said notes, bills, acceptances, or for such -loney paid or otherwise ; the said parties so paying, and who shall become entitled to prosecute as aforesaid, shall, notwithstanding the credit or time of payment hereinbefore and in the said bond mentioned, be entitled imme- diately to maintain aDy suits or actions at law or in equity, in the same" manner and to the same extent in evt'ry respect as though these presents and the said bonds had not been exscuted, or had been made payable im- mediately, and shall likewise be entitled to the same benefit of subrogation which they would be entitled to if the said time of credit h id not been given, and for that purpose, in all suits and proceedings to be had or taken by any such paity, in his own name or otherwi.-e, the said moneys hereby secured shall be deemed to be, and shall be due and payable immediately, so far only as may be necessary to secure to the said parties who are sure- ties all rights and advantages incident to their relation as such sureties, any thing herein contained to the contrary notwithstanding. 1080. Stipulation as to Paying Off in Advance. [Insert both in the mortgage and the bond, after the, clause fixing the time of payment, such a clause as the following :] with the privilege to the parties of the first part, their executors, administrators or assigns, at any time be- fore said day of , 1 8 , to pay off said mortgage in whole or in sums of or more dollars at a time, on giving notice, in writing, to the party of the second part, his executors, administrators or assigns, of intention so to do. CHAPTER LXIII. NATURALIZATION. An alien applying for naturalization must, with the exception stated below, be a free white person who has resided in the United States for the continued term of five years next preceding his admission, and one year at least within the State or Territory where the court is held that admits him. Two years at least before his admission he must declare on oath or affirmation, before a court of record having common-law jurisdiction and a seal and clerk, or before a circuit or district court of the United States, or before a clerk of either of the said courts, that it is bona fide his intention to become a citizen, and to re- nounce forever all allegiance and fidelity to any foreign prince, potentate, State or sovereignty, and particularly by name the prince, potentate, State or sov- ereignty of which he is at the time a citizen or subject. By a recent statute, it is provided that an alien who has been honorably dis- charged from the military service of the United States may be naturalized on proof if one year's residence. HATTRALIZATrON". 557 General Principles. The declaration of intention is recorded by the clerk, and a certificate, under the seal of the court, and signed by the clerk, that he has made such a dec- laration, is given him, which is received thereafter as evidence of the fact. It the applicant was a minor under the age of 18 years when he came to the sountry, this previous declaration of intention is dispensed with, and he is entitled to be admitted after he has arrived at the age of 21 years, if he has resided five years in the United States, including the three years of his minor- ity, and has so continued to reside up to the time when he makes his application, upon complying with the law in other respects. When the applicant has completed the necessary residence, he must prove the fact before one of the courts previously named, by other testimony than Ms own oath. One witness, if he knows the fact, is sufficient. If entitled to admission without a previous declaration of intention, the alien must declare upon oath, and prove to the satisfaction of the court, that, for the three years next preceding his application, it was bona fide his intention to become a citi- zen ; and every applicant must prove (which may be done by his own oath, un- less the court should require other testimony) that he has behaved, during the period of his residence, as a man of good moral character, attached to the prin- ciples of the Constitution of the United States, and well disposed to the good order and happiness of the same. The mode of admission is as follows : The applicant goes to the clerk of the court, and exhibits the certificate of his having declared his intention. The clerk then prepares a writteu deposition for the witness, setting forth his knowledge of the applicant's residence, and of his good character ; and another for the applicant, declaring that he renounces all allegiance to every foreign Power, and particularly that of which he is a citizen or subject ; and if he has borne any title of nobility, that he renounces it, and that he will support the Constitution of the United States. The parties are then taken before the judge, who examines each of them under oath ; and if he is satisfied that the applicant has resided in the country for the requisite period, and is a man of good character, he makes an order in writing for his admission. The deposi- tions are then subscribed by the parties, and publicly sworn to in court in presence of the j udge ; and the certificate of the declaration of intention, the depositions and the order of the judge are filed, and constitute the record of the proceeding. A final certificate under the seal of the court, signed by the clerk, is then given the alien, declaring that he has complied with all the re- quisites of the law, and has been duly admitted a citizen, which certificate is conclusive evidence thereafter of the fact. In the case of a minor, the previous declaration of intention is dispensed with ; but in all other respects the course of procedure is the same.(a) PAGE 1081. Declaration of intention ■ 557 1082. Certificate by clerk 558 3083. Oath of applicant for naturalization 558 1084. Proof of residence and good behavior 558 1085. Certificate of citizenship 559 1086. Affidavit of resident alien to enable him to hold real property 559 1081. Declaration of Intention, I, A. B., do declare on oath [or, do affirm] that it is bona fide my inten- tion to become a citizen of the United States, and to renounce forever all * allegiance and fidelity to all and any foreign prince, potentate, State and sovereignty whatever, and particularly to [here designate former allegiance — • (o) This summary of the law and prac- subject, from the pen of Hon. Charles P, tiee is «hiefly taken from an article on the Daly, in the New Am. Gycl. 558 ABBOTTS' FORMS. Proceedings for Naturalization. e. . Evans, 20 (d) Ugden v. Astor, iSandf., 311. Wend., 251 ; Pierson v. Hooker, 3 Johns., («) Clement v. Brush, 3 Johns. Gas., 2 68 ; Bulkley i>. Dayton, 14 74., S87 ; Bruen «a., 180; Gree' v. Boals, 2 Cai., 254; «. Marquand, 17 lb., 58. 564 ABBOTTS' FORMS. Dissolution. Limited Partnership. judgment/) ; nor to the making of a general assignment of the assets of the firm for the benefit of creditors, with preferences.^) Dissolution of partnership may l ake place in various ways besides those pro- vided by the articles(A i : as by th« death of a partner ; by his insanity or other abso.u e incapacity ; by liis assignment of his interest to a stranger, etc., etc. Immediately after a dissolution of copartnership, a notice should be pub- lished in the public papers to that effect, for the information of the public sit large, and a special notice should be sent to every correspondent, and every o:her person who has had any dealings with the company. If these precau- tions are omitted, one partner will stilt be liable for the acts of the other, 1o all pei sjiis not having had notice, as before the dissolution. , When the partnership has been once dissolved, no individual member of the firm can do any act by which he can increase or continue the liability of the other members of the partnership. He cannot give a partnership note, or sign any partnership agreement, or do any act to renew any claim against the firm, or to take it out of the eff. ct of the Statute of Limitations. Besides the ordinary or " general" partnerships, to which the foregoing rules apply, the statutes of most of the States now authorize the formation of Limit :d" partnerships. The peculiar feature of this is, that one or more partners aru permitted to put a certain stipulated cai ital at hazard, in the ad- venture ; and are not liable for any losses (provided they have, in all respects, Mil, lied with tiie statute) beyond that amount. in order to form a limited partnership in New York, a certificate must be made and signed by the parties. An affidavit of one or more of the general paitners must also be made, stating that the sums specified in the certificate, as having been contributed by the special partners, have been actually and in good faitn paid in cash. The certificate must be acknowledged and filed, with the arhcavit, in the office of the clerk of the county in which the business is to hi carried on ; and, if such business is to be conducted in more than one county, transcripts of the certificate and acknowledgment must be filed in such other counties. The terms of the partnership, when registered, are to be published for at least six weeks immediately after such registry, in two newspapers, to be designated by tue clerk of the county, and to be published in the senate dis- trict in which the business shall be carried on. in publishing the terms of a limited partnership, they must be in all respects trmy stated, in each newspaper, or the special partners will become liable as general partners. The general partners only may transact the business of a limited partner- ship. A special partner may examine into the state of the partnership con- cerns, and advise as to their management. The use of his name in the firm, and the extent to which he' may take part in the active management of its business, is, in many of the States, regulated in detail by special statutes, which those should consult who wish to secure the exemption. The business is to be conducted under a firm, in which the names of the general partners only can be inserted, without the addition of the word "company" or any other general term.(i) (J) Crane v. Trench, 1 Wend., 811; /V., 442. But it is said one partner may Siantcnbiirgh v. Vatidenburgh, 7 How. make a general assignment mthovt pret'er- Pr., 229. But see Pardee v. Hayne, 10 enees, or an assignment direct to a creditor Wend., 630 ; Kidd v. Brown, 2 Boa. Pr., in payment of his debt. 20 ; Eversou v. Gehrman, 1 Abbotts 1 Pi-., {h) Marquand v. N. Y. Manufacturing 167 ; 10 How. Pr., 301. Co., 17 Johns., 525: Mum ford v. McKay, 8 (g) Haggerty v. Granger, 15 How. Pr., Wend-., 442; Gould v. Banks, 8/6., 562; 243 : Kemp v. Camley, 3 Duer, 1 ; Havejs Berry v. Cross, 8 Sand/. Gh., 1 ; Griswold s. ilussey, 5 Paige, 80; Hitchcock v. St. v. Waddington, 16 Johns., 488. John, Hoffm., oil ; McLelland v. Rem- (i) 1 Jitv. Stat., 764, §§ 1-24; LawsoJ Ben, 38 Barb., 622; 14 Abbotts' Pr., 331 ; 1857,836, oh. 414; lb., 1887,101, ch. 129; lb., Pettee v. Orser, 6 Bosw., 128; 18 Mil. 1858,449, ch. 289; 74., 1862, 880, ch. 476. PARTNERSHIP. 565 Articles of Agreement. L General Partnership, paoe. 1094. Articles of copartnership in commercial business 565 1095. Articles of copartnership in hotel business 567 1H96. Articles of copartnership between lawyers 667 1097. The same ; adapted to a case where one intends to retire in favor of the other 568 1098. Articles of voluntary association, for carrying on a newspaper 569 1099. Limit of amount to be drawn out by partners 571 1100. Another form 571 1101. Provision for increase of capital 571 1102. Provision as to departments of service 572 1108. Restriction on the power of majority 572 1104. Provision as to liquidation by sale at auction 572 1105. Stipulation to refeT disputes to arbitration 572 1106. Provision for offer to buy or sell 578 1107. Provision for dissolution on notice 578 1108. Provision that after a dissolution the retiring partner shall not carry on the trade or disclose secrets .- 578 1109. Agreement to continue the partnership ; indorsed on the articles. . . 578 1110. Notice by one partner to another, to determine a partnership, un- der a power reserved for the purpose 574 1111. Memorandum of dissolution indorsed on the articles 574 1112. Advertisement of dissolution 574 1118. Advertisement <5f a partner's retiring 574 II. LlMITKD PARTNERSHIP. 1114. Certificate of formation of limited partnership 575 1115. Affidavit of payment of capita] 575 1116. Designation of newspapers inwhich publication is to be made 575 1117. Affidavit of publication, by printer of newspaper 575 1118. Certificate of continued use of firm-name 576 1094. Articles of Copartnership in Commercial Business. Aimor.Ks of ageeement, made the day of , one thousand eight hundred and , between A. B , of , and Y. Z., of , witne-seth, as follows: I. The said parties above named have agreed to become copartners in business, and by these presents do agree to be copartners together under and by the name or firm of l>. & Z., in the business of [here designate it briefly, but accural elu]{j), in the [buying and] selling all sorts of goods, wares and merchandise to the said business belonging. [If the location oj the place of business is deemed essen Hal, it may be here specified.] The part- nership to commence on the day of , and to continue years. II. To that end and purpose the said A. B. has contributed the sum of dollars in cash, and the said Y. Z. has contributed the lease of the store in , to be occupied by them, and the stock of goods and good- will of the business there heretofore carried on by him, which are together estimated and valued by the parties at the like sum of dollars, the capital stock so formed to be used and employed in common between them, (j) The scope of the business should beyond the intended scope. Thus if only be distinctly defined, if it is desired to a commission business is intended, the preclude the individual partners from in- word " buying" should be omitted. colving the firm in liability, by dealings 566 ABBOTTS' FOKMS. Article's of Copartnership. for the support arid management of the said business, to their mutual bene- fit and advantage. III. At all times during the continuance of their copartnership, they and each of them will give their attendance, and do their and each of their best endeavors, and to the utmost of their skill and power exert themselves for their joint interest, profit, benefit and advantage, and truly employ [buy], sell and merchandise with their joint stock, and the increase thereof, in the business aforesaid. And also, that they^ shall and will at all times during the said copartnership, bear, pay and discharge equally between them, all rents and other expenses that may be required for the support and management of the said business ; and that all gains, profit and in- crease that shall come, grow or arise from or by means of their said busi- ness, shall be divided between them equally [or state other proportion]; and all loss that shall happen to their said joint business by ill commodi- ties, bad debts or otherwise, shall be borne and paid between them equally [or other proportion]. IV. And it is agreed by and between the said parties, that there shall be had and kept at all times during the continuance of their copartnership, perfect, just and true books of account, wherein each of the said copartners shall enter and set down, as well all money by them or either of them re- ceived, paid, laid out and expended in and about the said business, as also all goods, wares, commodities and merchandise by them or either of them bought or sold, by reason or on account of the said business, and all other matters and things whatsoever, to the said business and the management thereof in any wise belonging ; which said book shall :be used in common between the said copartners, so that either of them may have access there- to, without any interruption or hindrance of the other. And also, the said copartners, once in [designating the times], or oftener, if necessary, shall make, yield and render, each to the other a true, just and perfect in- ventory and account of all profits and increase by them or either of them made, and of all losses by them or either of them sustained; and also all payments, receipts, disbursements and all other things by them made, re- ceived, disbursed, acted, done or suffered in this said copartnership and business; and the same account so made, shall and will clear, adjust, pay and deliver, each to the other, at the time, their just share of the profits, and pay and bear their just share of the expenses and losses so made as aforesaid. V. And the said parties hereby mutually covenant and agree, to and with each other, that during the continuance of the said copartnership neither of them shall nor will indorse any note, or otherwise become surety for any person or persons whomsoever, without the consent of the other of the stiid copartners. And at the end or other sooner determination of their copartnership, the said copartners, each to the other, shall and will make a 1rue, just and final account of all things relating to their said business, and in all things truly adjust the same ; and all and every the stock and stocks, as well as the gains and increase thereof, which shall appear to be remaining, either in money, goods, wares, fixtures, debts or otherwise, shall be divided between them. PARTNERSHIP. 567 Articles. ■{Here add any other special stipulations which may he desired.] In witness whereof, the parties hereto have hereunto interchangeably set their hands and seals, the day and year first above written. Signed, sealed and delivered) [Signatures and seals. ](k) in the presence of J [/Signature of witness.] 1095. Articles of Copartnership in Hotel Business. This agreement, made the day of , 18 , between A. B., of the city of , of the first part, and Y. Z., of the same place, party of the second part, witness That the said parties ETH:to this agreement hereby form with eaoh other a copartnership, and agree with each other to be co- partners, for the purpose of purchasing the lease, furniture, good-will and fixtures of the Hotel in the city of - , situated in street, in the city of , and for the purpose of carrying on and conducting the business of keeping said hotel. The firm and partnership name under which the business of said partner- nership shall be conducted and carried on shall be B. & Co. ; and the said partner -hip shall begin on the day of the date hereof, and continue till the expiration of the term for which M. N has a lease of said hotel, and also till the expiration of any term or time for which the parties to these pres- ents, or either of them, may hereafter obtain a lease of said hotel from the owners thereof daring said present lease. And the said parties to this agreement mutually agree with each other, that tney will purchase the interest of M. N. in the lease of said hotel, and in the furniture and fixtures and good-will thereof, at the best price and on the best terms at which the same may be obtained ; and that each of the parties thereto shall contribute equally the capital, or capital and securities, necessary to purchase said interest of said M. N. in said hotel and furniture, and to carry on said business. And the said parties to this agreement further agree with each other, that each shall devote his whole time, attention, talents and business capa- city to the business hereby agreed to be carried on by them, as copartners as aforesaid. [Covenants as to accounts, restrictions on individual engagements, etc., as in Form 1095 ; and other stipulations as may he agreed; see Forms 1096 to 1108.] 1096. Articles of Copartnership Between Lawyers.Q,") Articles of copartnership. A. B., C. D., E. F. and G. H. hereby form a partnership as attorneys and counsellors under the name of B. & D., to continue for three years from this date ; but either party may retire on one month's notice in writing. (k) Seals are not necessary. the articles actually adopted by one of (I) This form, though very brief and the largest and most extensively em- simple iu its provisions, is founded on ployed firms in the city of New York. 56? ABBOTTS' FORMS. Between Lawyers. Mr. B. shall reoeive one-half, Mr. D. and Mr. F. each one-fifth, and Mr. H. one-tenth of all the business receipts, including counsel fees from at sources, and deducting expenses. Each party shall devote all his working time to the business of the firm. All receipts shall be deposited in a bank to be selected by the firm, in the name of. the firm ; and after current expenses are paid, shall be divided whenever there is a sum on hand exceeding two hundred dollars. All checks shall be drawn by Mr. F. Neither member of the firm shall become indorser or security in any manner for any other person without the consent of all the other members of the firm. [Signatures.] Dated New York, 18 . 1097. The Same; Adapted to a Case Where One Intends to Betire in Favor of the Other. Articles of agreement, made this day of ,18 , between A. B. and Y. Z., both of , attorneys and counsellors. Wheheas, A. B. is desirous to be relieved of the active management and business of his law practice, and to retire therefrom, and Y. Z. is disposed lo undertake the same with the view of succeeding A. B. therein : It is agreed as follows : I. The parties hereto hereby enter into partnership for the general prac- tice of law, in the city [or, town] of II. A. B. places his office at No. street, in said city [or, town] and the furniture and fixtures therein, and the lease thereof, with all privi- leges and expectation of renewals, at the service of said partnership, but subject to all the covenants in said lease contained, during the continuance of this partnership. He farther agrees to give the benefit and aid of his influence, recommendation and general assistance and advice to promote the business of the partnership ; and that he will not be pecuniarily inter- ested in any other law-office in said city [or, town] during the continuance thereof, nor for five years thereafter. But it is understood that his time will not be extensively required in the transaction of the ordinary business of the office. III. Y. Z. agrees to give his whole time and attention to the business of the partnership hereby created. IV. He further agrees to take the whole general charge, management and direction of the office of the firm, and of all professional business in which they may be employed, and to superintend and carry forward the same with activity, industry and professional skill; and to indemnify A. B. and save him harmless of and from all claims and demands arising out of any neglect or mismanagement of any business in which the firm may be employed, excepting any neglect or mismanagement of the said A. B. V. Y. Z. further agrees to keep just ai.d true books of account of all the business of the firm, which shall be at all reasonable times open to the in- spection of A. B. ; and that he will on the first day of each calendar month render to said A. B. a statement in writing of all receipts, earnings, costs PARTNERSHIP. 569 Articles of Voluntary Association. counsel fees, profits or commissions received in or through said business during the month preceding, and that he will at the same time pay to A. B. one-half [or other share agreed on] of the gross amount thereof. VI. Expenses shall he defrayed as follows : A. B. shall pay one-quarter of the rent, and of the expenses of lighting, heating and oleaning of office, and of salary of one clerk, as each grows due; and shall have the occupancy of one-quarter in value of the office, the part to be such as he shall select. All other expenses are to be defrayed by Y. Z. VII. Appearances may be entered in the name of Y. Z. as attorney. VIII. The partnership hereby formed shall continue in force for year from the date of these articles ; but A. B. may at any time withdraw upon giving one month's notice in writing. IX. Upon any dissolution of the partnership hereby created, except one caused by the death or other incapacity to continue business of Y. Z., an ac- count, shall be stated of all sums theretofore earned in and by the professional business of the firm, whether the same be by the usage of the profession immediately chargeable and collectable from the clients of the firm or not ; and sve said dollars shall thereafter be entitled to receive an increased share of the profits — that is to say, in proportion to their original shares, with the addition of such additional contributions. The profits shall be ascertained and divided on the first day of and in each year, or at such other times as may be fixed by the direc- tors. Sixth. Eacl of the parties hereto shall have the right to sell any portion of his shares >f said stock ; but before selling the same to any other per- son, he sha. offer the same to the association, giving them the refusal •PARTNERSHIP. 571 Special Provisions for Articles. thereof for days. But no sale of any such shares shall give to any purchaser thereof any right to interfere in the conduct, management or af- fairs of said newspapers, or either of them; and no such purchaser shall acquire any interest whatever in the profits of said papers till he shall have received a certificate or scrip for his said shares, signed hy all the parties hereto, and duly registered in a book kept for that purpose ; which scrip shall always express from whom the said shares were purchased, and shall certify that the holder of said scrip takes the same with notice of and sub- ject to the articles of association between the parties hereto, and is entitled to participate in proportion to his shares only in that portion of the profits which may be assigned to the party so selling to such purchaser, and shall not be entitled to any voice or agency whatever in the conduct, control, management or affairs of said company or of said newspapers. Seventh. These articles may be altered at any time, hy agreement in wri- ting, to be signed by all the parties hereto, and not otherwise. In witness whekeof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. [Signatures.] In presence of [Signature of witness.] ' 1099. Limit of Amount to be Drawn Out by Partners. Each of the parties may draw from the cash of the joint stock, the sum of dollars quarterly, to his own use, the same to be charged in account, and neither of them shall take any further sum for his own separate use. without the consent of the other in writing; and any such further sum, taken with such consent, shall draw interest at the rate of per cent., and shall be payable, together with the interest due, within days after notice in writing given hy the other party. 1100. Another Form. Neither party shall withdraw from the joint stock, at any time, more than his share of the profits of the business then earned, after payment of expenses and losses, nor shall either party be entitled to interest on his share of the capital ; but if, at the expiration of the year, a balance of profits be found due to either partner, he shall be at liberty to withdraw the said balance, or he may leave it in the business, if the other partner consent thereto, in which case he shall be allowed interest on such balance at the rate of per cent. ; and shall give notice in writing of intention to withdraw it, before he shall withdraw it. 1101. Provision for Increase of Capital. Neither party shall draw oat any part of the profits of the concern, with- er': the consent in writing of the other parties, until the capital exceeds the, sum of dollars, which sum of dollars shall be set apart during the term of the said copartnership as a joint capital for the purposes of the said concern; but when the capital shall exceed the said sum of dollars, then either party may draw out the whole or any part of his share of the profits over and r V>ve that capital. 572 ABBOTTS' FORMS. Special Provisions for Articles. 1102. Provisions as to Departments of Service. The said T. Z. shall devote and give, all his time and attenti( n to the business of the said firm as a salesman, and generally to the fare and superintendence of the store; and the said A. B. shall devote so much of his time as may be requisite in advising, overseeing, and directing the pur- chase and importation of goods necessary to the said business. 1103. Restriction on the Power of Majority. No purchase or other contract, involving a liability of more than dollars, nor any importation from abroad shall be made, nnr any transaction out of the usual course of the retail business, shall be undertaken by either of the partners, without the previous consent and approval of the other partner. 1104. Provision as to Liquidation oy Sale at Auction. Upon the expiration of the afore-aid term, or on the earlier dissolution of this copartnership, if the parties or their legal representatives cannot agree on the division of the assets and the apportionment of the liabilities, and do not refer the same to arbitration, the whole copartnership effects [except the debts due to the firm], shall be sold by public auction, at which each of the parties shall be at liberty to bid and purchase like other persons, and the proceeds shall be divided, after payment of the debts of the firm, in the proportions aforesaid. 1105. Stipulation to Refer Disputes to Aroitration.(m) If at any time hereafter, and before the accounts between the parties concerning the said partnership shall be finally settled and closed, any dis- pute or difference shall arise between them the parties, or any two of them, concerning the true construction of any thing in these presents, or any accounts to be stated or settled in pursuance hereof, or the valuation of the assets, or any thing relating to the partnership, or the concerns thereof, or out of the acts or omissions of either party to this agreement, then and so often as the same shall happen, all such matters in difference shall be sub- mitted and referred to the award and determination of three arbitrators, to be chosen, one by each of the parties to this agreement, and the third ar- bitrator :-hal] be chosen by the two chosen by the parties to this agreement, and the decision and award of any two of the three arbitrators [in writing] shall be binding and final between the parties to this agreement, and b'md- : ag on them, and shall be carried out and performed by them.(ra) {■m) This provision is a very useful one, (n) For fuller provisions as to choosing as the equity of it will generally enable umpire, and as to the time within which the parties to come to a settlement accord- an award must be made, see the chapter mgly, although ii is not specifically en- on Abbitkation. ■ forceable in the c 'urts. PARTNERSHIP. 573 Special Provisions in Articles. 1106. Provision for Offer to Buy or 8ell.(o) On the dissolution of the said copartnership, either party may make, in writing, an offer to the other of the price at which he will buy the interest of the other, or sell to the other his own interest ; and such other party shall thereupon, within days, signify his election whether he will buy or sell at that price ; and if he fails to do so by notice, in writing, within that time, the party making such offer may, within days, buy or sell at Ms own election according to his offer. 1107. Provision for Dissolution on Notice. In case of the violation of any of the foregoing covenants and obligations by either of the parties hereto, the other party may, at his option, dissolve this copartnership by giving the parties written notice of his election so to do, within days after being informed of such violation. After the expiration of the first years of said copartnership, either party may at his election dissolve the partnership, by giving months' previous notice in writing, of his intention so to do. 1108. Provision that After a Dissolution, the Retiring Partner Shall Rot Carry On the Trade, or Disclose Secrets. Upon and after the expiration of the said term, or other sooner termina- tion of the partnership, except it be terminated by reason of the violation, default or death of the other party, the partner retiring shall not at any time, either alone, or jointly with, or as agent for any person either directly or indirectly, set up, exercise or carry on the said trade or business of , within miles from aforesaid ; and shall not set up, make or en- courage any opposition to the said trade or business hereafter to be carried on by the other party or his representatives or assigns, nor do any thing to the prejudice thereof; and rhall not divulge to any person any of the secrets, accounts or transactions of, or relating to the said copartnership. And for any violation of this stipulation, the parties bind themselves to each other in the sum of dollars to be deemed liquidated damages, and in total extinction of this covenant, and not in the nature of a penalty. 1109. Agreement to Continue the Partnership ; to oe Indorsed on Articles. Wheeeab the partnership evidenced by the within articles of agreement has this day expired by the limitations contained herein [or, will expire on the day of next], it is hereby agreed that the same shall be con- tinued on the same terms, and with all the provisions and restrictions therein (o) Such a provision as this affords a affairs, where the shares are exactly de» ."cry convenient mode of liquidating the fined 574: ABBOTTS' FORMS. Dissolution of Partnership. contained, for the further term of years from this date [or, from the day of next]. In witness [etc., as in Form 1094]. 1110. Notice by one Partner to Another, to Determine a Partnership, Under a Power Reserved for the Purpose. Puksuant to the power for this purpose contained in certain articles of partnership, dated the day of , and made between you of the one part and me of the other part, I hereby give you notice that it is my inten- tion to determine the partnership now subsisting between us under the said articles forthwith [or, at the expiration of moaths, to be com- puted from the date hereofj.(p) [Date.] [Signature.] [Address to other partner.] 1111. Memorandum of Dissolution Indorsed on the Articles. By mutual consent of the parties to the within agreement, the partner- ship thereby formed is wholly dissolved, except so far as it may he neces- sary to continue the same for the final liquidation and settlement of the business thereof; and said agreement is to continue in force until such iSnaJ liquidation and settlement be made, and no longer. A..B. only [or, each of the parties] is authorized to sign in liquidation. In witness [etc., as in Form 1094]. 1112. Advertisement of Dissolution. Notice is hereby given, that the partnership lately subsisting between A. B. and Y. Z., of , under the firm of B. and Z., expired on the day of [or, was dissolved on the day of , by mutual consent, or, pursuant to the terms of the articles]. All debts owing to the said partnership are to be received by said A. B., and all demands on the said partnership are to be presented to him for payment [or, A. B. is authorized to settle all debts due to and by the firm]. [Date.] [Signature of partners.] 1113. Advertisement of a Partner's Retiring. Notice is hereby given, that the partnership between A. B , C. D. and E. K, was dissolved on the day of , so far as relates to the said E. E. All debts due to the said partnership, and those due by them, will be settled with and by the remaining partners [who will continue the busi- ness under the firm of B. & D.] [Date.] [Signatures of the partners] (p) If the dissolution is because of a violation of the articles, state it briefly. PARTNERSHIP. 575 Limited. II. Limited or special Partnerships. 1114. Certificate of Formation of Limited Partnership. This is to certify, that the undersigned have formed a limited partner- ship, pursuant to the provisions of the Revised Statutes of the State of New York. That the name or firm under which such partnership is to be con- ducted is . That the general nature of the business to be transacted is [here specify it — e. g., thus :] buying and selling [on commission] hardware and house-furnishing goods, and such articles as are usually dealt in by dealers in such ware and goods. That the names of all the general and special partners are as follows : A. B., who resides at , and 0. D., wLo resides at , are the general partners; and E. F., who res'ule^ at , and Gr H., who resides at , are the special partners; and that the said E. F. lias contributed the sum of dollars, and Gr. II. the sum of dollars, as capital to the common stock; and that the said partner- ship is to commence on the day of , and is to terminate on the day of , 18 . Dated this day of , one thousand eight hundred and [Signatures.'] [Add acknowledgment or proof as if it were a deed of lands. See pp. 65 to 61, ante.] 1115. Affidavit of Payment of Capital. County of , ss. A. B , being duly sworn, says, that he is the general partner [or, one of the general partners] named in the above certificate, and that the sum spe- cified in the said certificate to have been contributed by the [or, each] spe- cial partner to the common stock, has been actually, and in good faith, paid in ca-• 88. [Oity and] County of . ) On this day of , 18 , before the subscriber, a , persor- ally appeared the within-named A. B., and made solemn oath [or, affirma- tion] that he verily believes himself to be the original and first inventor, or producer, of the design for , and that he does not know or believe that the same was ever before known or used, and that he is a * citizen of the United States. [Signature^/ officer] 1128. Oath to Latter Petition, by an Alien who has Taken Steps to Become [As in the preceding form to the*, continuing thus:'] a native of the kingdom of ; that he has resided within the United States for the whole of the past year, and has taken the oath prescribed by law for te- aming naturalized in this country. [Signature of officer.'] 1129. Amendments to Specification-^/) I hereby amend my specification by inserting the following words after the word , in the line of the page thereof [here supply the words that are to be inserted]. (/) The applicant "for a patent has a papers themselves are generally returned right to amend his application of course, by the office to the applicant ; but it is after the first rejection, and he may amend only to enable him to make those amend- after the second, if the examiner therein ments, so as to be in harmony with the present any new references ; and after a context. Even when the amendment second rejection, and before appeal to the consists in striking out a portion of the examiner-in-chief, the applicant may draw specification, or other paper, the same up special amendments, and present the course should be observed. The rules of same to the commissioner, together with the office forbid any erasures to be made. an affidavit showing good cause why the The papers are required to remain forever amendments were not sooner offered, just as they were when filed, so that a true whereupon the commissioner may in his history of all that has been done in the discretion grant leave to make such spe- case may be gathered from them. Where cial amendments, and allow a reconsid- papers are sent to the applicant for amcnd- eration. After an appeal to the exam- ment, the original papers must in all iners-in-ehief no amendment or alteration cases be returned to the office for pres- i.'i allowed, nor are amendments allowed ervation, together with the amendments. \fter a patent has been ordered to issue. In some cases, amendments will be per- All amendments of specifications or mitted to be made by writing out the en- claims are required to be made on Sep- tire paper anew ; but even when this is »rate sheets of paper from the original. done, the original paper must be returned When amendments are required, the and :reserved. PATENTS. 585 Appeal. Surrender for Reissue. Or, I hereby amend my^ specification by striking out the line of the page thereof, or, by striking out the first and fourth claims appended thereto [or otherwise state whatever may oe the amendment desired, by the applicant.'] A. B. [Signatures of two witnesses^ 1130. Appeal to Examiners-in- Chief, from Decision Rejecting Application.{g) To the commissioner of patents : Sir— In conformity with section third of the act of Congress, dated 2d March, 1861, I hereby make application for an appeal from the decision of the principal examiner, in the matter of my application for a patent for an improvement in [describe invention], rejected a second time on the day of , 18 , and request that the same may be heard by the exarainers- in-chief. Respectfully, A. B. 1181. Surrender of a Patent for Eeissue.(h) To the commissioner of patents : The petition of A. B., of the town [or, city] of , in the county of , and State of , respectfully represents : That he did obtain letters patent of the United States for an improve- ment in the boilers of steam-engines, which letters patent are dated on the (g) If the examiners-in-chief confirm as amended subsequently by making the the rejection of the application, the case fee to be paid thirty dollars instead of fif- may be brought before the commissioner teen. It provides that whenever any in person, upon a written request to that patent shall be inoperative or invalid, by effect, and upon the payment of the fee reason of » defective or insufficient de- required by law (thirty dollars). acription or specification, or by reason o If his decision is adverse, a final appeai the patentee claiming in his specification, in certain cases is allowed by law to the as his own invention, more than he had a Supreme Court of the District of Colum- right to claim as new, if the error has or bia. The mode of appeal from the de- shall have arisen by inadvertency, acci- cision of the office to the Supreme Court dent or mistake, and without any fraudu- ofthe District of Columbia is by giving lent or deceptive intention, it shall be written notice thereof to the commie- lawful for the commissioner, upon the sioner, filing in tLu Patent Office, within surrender to him of such patent, and the such time as the commissioner shall ap- payment of the further duty of fifteen point, reasons of appeal, and paying to [thirty] dollars, to cause a new patent to be him the sum of twenty-five dollars, issued to the said inventor for the same in- Printed forms of notice of appeal, of the vention, for the residue of the period then reasons of appeal, and the petition, and unexpired for which the original patent copies of the rules of the Supreme Court was granted, in accordance with the paten- of the District of Columbia will be for- tee's corrected description and specitica- warded, by the Patent Office, to the party, tion. And in case of his death or any as- ' on request. signment by him made of the original (A) Patents which are found to be in- patent, a similar right shall vest in hiB ex- valid by reason of insufficiency or defects editors, administrators or assignees. And in the specification, are allowed to be re- the patent so reissued, together with the issued, the error being corrected under corrected description and specifications, section IS of the act of Congress of 1Sc6, shall have the same effect and operation 586 ABBOTTS' FORMS. Oatli. Disclaimer. 1st day of March, 1850 ; that he now believes that the same is inoperative and invalid by reason of a defective specification, which defect has arisen from inadvertence and mistake. He therefore prays that he may be allowed to surrender the same, and requests that new letters patent may issue to him, for the same invention, for the residue of the period for which the original patent was granted, under the amended specification herewith pre- sented, he having paid thirty dollars into the treasury of the United States, agreeably to the requirements of the act of Congress in that case made and provided. A. B. 1132. Oath to Application for a Reissue. State of , ) [City and] County of . J ' On this day of , 18 , before the subscriber, a , personally appeared the above-named A. B., and made solemn oath [or, affirmation] that he verily believes that, by reason of an insufficient or defective specifi- cation, his aforesaid patent is not fully valid and available to him ; and that the said error has arisen from inadvertence, accident or mistake, and with- out any fraudulent or deceptive intention, to the best of his knowledge or [Signature of officer.] 1133. Disclaimer; By an Assignee.^) To the commissioner of patents : The petition of A. 15., of the town [or, city] of , in the county of , and State of , respectfully represents : That he has, by assignment, duly recorded in the Patent Office, become in law, on the trial of all actions here- of a reissue constitutes the subject of a after commenced for causes subsequently separate specification descriptive of the accruing, as though the same had been part or parts of the invention claimed in originally filed in such corrected form, be- such division ; and the drawing may rep- fore the issuing of the original patent, resent only such part or parts. One or The general rule is, that whatever is more divisions of a reissue may be grant- really embraced in the original invention, ed, though other divisions shall have and so described Or shown that it might been postponed or rejected, have been embraced in the original patent, In all cases of applications for reissues may be the subject of a reissue. the original claim is subject to re-exam- Eeissued patents expire at the same ination, and may be revised and restrict- time that the original patent would have e d in the same manner as in original ap- done. For this reason applications for plications. But in all such cases, after reissue are acted upon in the Patent Office the action of the Patent Office has been immediately after they are completed. ma de known to the applicant, if he pre- A patentee may, at his option, have in fere the patent originally granted to that his reissue a separate patent for each dis- which will be allowed by the decision of tinct part of the invention comprehended the office, he has the privilege of abandon- in his original application, by paying, the ing the latter and retaining the old patent, required fee in each case, and complying (i) Section 7 of the act of Congress of with the other requirements of tlie law, March 3, 1887, enables a patentee, or the as in original applications. Each divis'on executors, or administrators or assignees PATEN IS. 587 Caveat. the owner of a right for the several States of Massachusetts, Connecticut and Rhode Island, to certain improvements in the steam-engine, for which letters patent of the United States were granted to M. N., of , in the State of , dated on the day of , 18 , that he has reason to believe that, through inadvertence and mistake, the claim made in the specification of, said letters patent is too broad, including that of which the said patentee was not the first inventor. Your petitioner, therefore, hereby enters his disclaimer to that part of the claim in the aforenamed specifica- tion, which is in the following words — to wit: "I also claim the particular manner in which the piston of the above-described engine is constructed so as to insure the close fitting of the packing thereof to the cylinder, as set forth" [or, otherwise state what, in the original claim, is disclaimed] ; which disclaimer is to operate to the extent of the interest in said letters patent vested in your petitioner, who has paid ten dollars into the treasury of the United States, agreeably to the requirements of the act of Congress in that case made and provided. A. B. 1134. Caveat. To the commissioner of patents : The petition of A. B., of the town [or, city] of , in the county of , and State of , respectfully represents : That he has made certain improvements in the mode of constructing the boilers for steam-engines, and that he is now engaged in making experi- ments for the purpose of perfecting the same, preparatory to his applying for letters patent therefor. He therefore prays that the subjoined descrip- tion of his invention may be filed as a caveat in the confidential archives of the Patent Office, agreeably to the provisions of the act of Congress in that case made and provided; he having paid ten dollars into the treasury of the United States, and otherwise complied with the requirements of the said act. A. B [Date.] of a patentee, whether owning the whole by one or more witnesses, and recorded patent or a sectional interest therein, in in the Patent Office and a fee of ten dol- case it is discovered that the original lars paid. Such disclaimer shall thereafter patentee, through inadvertence, accident be considered as part of the original speci- or mistake, made his specification of claim fication, to the extent of the interest pos- too broad, claiming more than that of sessed in the patent by the disclaimant, which he was the original or first inventor, subsequent to the record thereof. But it some material and substantial part of the does not affect any action pending at the thing patented being truly and justly his time of its being filed, except so far as own, to make a disclaimer of such parts may relate to the question of unreason- of the thing patented as the disclaimant able ueglect or delay in filing it. shall not claim to hold by virtue of the The above form may easily be modified patent or assignment, stating therein the to adapt it to the case of a disclaimer, by extent of his interest in such patent. The the original patentee. disclaimer must be in writing, attested 588 ABBOTTS' FORMS. Deposition. [Annex a general description of the nature and peculiarities of the inven tion,(j) as far as it has been perfected; also oath of inventor substantially as in Forms and , that the applicant believes himself to be the original inventor of the art, machine or improvement set forth in his caveat, and either that he is a citizen of the United States or is a native of , and has resided for the year last past within the United States, and has made oath of his intention to become a citizen^ 1135. Deposition ;(h) To be Used in Contested Cases in the Patent Office. In the matter of the interference of A. B. with Y. Z. M. N., being duly sworn, doth depose and say, in answer to interrogatories proposed to him by O. P., counsel for A. B., as follows— viz. : (/) The description is not required to possess the fulness and accuracy of a specification ; but should be as complete as tiie progress made by the inventor admits. It is desirable that it should be accompanied by drawings. (A) When, in anticipation of the hearing of a question of interference between two claimants to a patent for the same inven- tion, or in any other contested question, before the commissioner of patents, the nature of the ease demands that the testi- mony of witnesses be taken by deposition, the following rules, prescribed by the office, apply. Before the deposition of a witness or witnesses be taken by either party, rea- sonable notice in writing must be givec to the opposite party of the time and place when and where such deposition or depositions will be taken, so that the opposite party, either in person or by attorney, shall have fall opportunity to cross-examine the witness or witnesses. No peculiarities of form in the notice are required ; it must give reasonable in- formation of what is intended. The or- dinary forms used in proceedings in courts of justice of giving notice that a deposition will be taken, may be followed, designat- ing the proceeding in which the deposition is to be used, correctly. The notice, with a certificate duly sworn to, stating the manner api time of the service, must be attached to the deposition or deposi- tions, whether the party cross-examine or not ; and the notice must be given in sufficient time for the appearance of the opposite party, and for the transmission of the evidence to the Patent Office before the day of hearing. The evidence, etc., must be sealed and addressed to the commissioner of patents by the persons before whom it shall be taken ; and so certified thereon substan- tially as in Form 1136 in the text. No evidence touching the matter at issue will be considered upon the day of hearing which shall not have been taken and filed in compliance with these rules : Provided, That if either party is unable, for good and sufficient reasons, to procure the testimony of a witness or witnesses within the stipulated time, then it is the duty of such party to give notice of the same to the commissioner of patents, accompanied by statements, under oath., of the cause of such inability, and of the names of such witnesses, and of the faots expected to be proved by them, and of the steps which have been taken to pro- cure said testimony, and of the time or times when efforts have been made to procure it; which last-mentioned notice to the commissioner must be received by him previous to the day of hearing. ' The notice for taking testimony must be served by delivering to the adverse party a copy. If he is not found, service may be made upon his agent or attorney PATENTS. 5o'9 Certificate. 1. Interrogatory. What is your name, your residence, and occupation? 1. Answer. My name is M. N. ; I am a carpenter, and reside in Boston, Massachusetts. And in answer to cross-interrogatories proposed to him by Q. R., counsel for Y. Z., as follows — viz. : 1. Oross-interrogatory, etc. M. N. 1136. Certificate to be Annexed by Magistrate. State op , i [City and] County of . j At , in said oounty, on the day of , A. d. 18 , before me personally appeared the above-named M. N"., and made oath that the foregoing deposition, by him subscribed, contains the whole truth, and nothing but the truth. of record, or by leaving a copy at the party's usual place of residence, with some member of the family who has arrived at the years of discretion. The testimony must (if either party desires it) be taken in answer to inter- rogatories — having the questions and answers committed to writing in their regular order by the magistrate, or, under his direction, by some person not inter- ested in the issue, nor the agent or attor- ney of one who is. The deposition, when complete, must be signed by the witness. The magistrate must append to the dep- osition his certificate, stating the time and place at which it was taken, the names of the witnesses, the administra- tion of the oath, at whose request the testimony was taken, the occasion upon which it is intended to be used, the names of the adverse party (if any), and whether they were present. No notice will be taken, at the hearing, of any merely formal or technical objec- tion, unless it may reasonably be pre- sumed to have wrought a substantial injury to the party raising the objection ; nor even then, unless, as soon as that party became aware of the objection, he immediately gave notice thereof to the patent office, and also to the opposite party, in forming him at the same time that, unless corrected, he should urge his objection at the hearing. By section 1 of the act of Congress of March 2, 1861, it is provided that affida- vits and depositions required in cases pending in the Patent Office, and such affidavits and depositions may be taken before any justice of the peace or other officer authorized by law to take dep- ositions to be used in the courts of the United States, or in the State courts of any State where such officer shall reside. To secure the attendance of reluctant witnesses, the same statute provides that, and in any contested case pending in the patent office, the clerk of any court of the United States or any district or territory, may issue subpoenas for any witnesses within the said district or territory, com- manding such witnesses to appear and testify before any above-named officer, residing within the district or territory; if any witness, duly st rved with subpoena, refuses or neglects to tppear, or, appear- ing, refuses to testify (not being privi- leged), any judge of the court whose clerk issued the subpoena, may proceed to enforce obedience, or to punish the dis- obedience as in case of disobedience to a eulpana issued by a court. Witnesses are entitled to the same compensation as witnesses attending tie courts of the United States. But no witness can be required to attend at more than forty miles from the place where he is served, nor lie deemed guilty of contempt for refusing to disclose any secret invention made or owned by him : nor for disobeying a sub- poena, unless his fees are paid or tendered him at the time of the service. 590 ABBOTTS' FORMS. Superscription. The said deposition is taken at the request of A. B , to be nsed upon the hearing of an interference between the claims of the said A. B. and those of Y. Z., before the commissioner of patents of the United States, at his office, on the day of next. The said Y. Z. was duly notified, as appears by the original notice hereto annexed, and attended by Q. E., his counsel [or, but did not attend], certified by me. [Signature of officer.'] [Annex notice with proof of service.] 1137. Superscription to be Written on the Envelope Containing the Deposition. I hereby certify, that the depositions of M. N., S. T, etc., relating to the matter of interference between A. B. and Y. Z., were taken, sealed up, and addressed to the commissioner of patents, by me. [Signature of officer.] CHAPTEE LXIX. PENSIONS. Under the act of Congress approved July 14, 1862,(a) pensions are granted to the following classes of persons : 1. Invalids, disabled since March 4, 1861, in the military or naval service of the United States, in the line of duty. 2. Widows of officers, soldiers or seamen, dying of wounds received, or of disease contracted in the military or naval service, as above. 3. Children, under sixteen years of age, of such deceased persons, if there is no widow surviving, or from the time of the widow's re-marriage. 4. Mothers of officers, soldiers or seamen, deceased as aforesaid, provided the latter have left neither widow nor children under sixteen years of age; and provided, also, that the mother was dependent, wholly or in part, upon the de- ceased for support. 5. Sisters, under sixteen years of age, of such deceased persons, dependent on the latter, wholly or in part, for support, provided there are no rightful claimants of either of the three last preceding classes. The rates of pension to the several classes and grades are distinctly set forth in the first section of the act, which is as follows : " That if any officer, non- commissioned officer, musician or private of the army, including regulars, vol- unteers and militia, or any officer, warrant or petty officer, musician, seaman, ordinary seaman, flotillaman, marine, clerk, landsman, pilot, or other person in the navy or marine corps, has been, since the fourth day of March, eighteen hundred and sixty-one, or shall hereafter be, disabled by reason of any wound received or disease contracted while in the service of the United States, and in the line of duty, he shall, upon making due proof of the fact according to such forms and regulations as are or may be provided by or in pursuance of law, be placed upon the list of invalid pensions of the United States, and be entitled to receive, for the highest rate of disability, such pension as is hereinafter pro- vided in such cases, and for an inferior disability, an amount proportionate to (a) 12 U. S. Slat, at L., 566. PENSIONS. 591 General Principles. the highest disability, to commence as hereinafter provided, and continue during the existence of such disability. The pension for a total disability for officers, non-commissioned officers, musicians and privates, employed in the military service of the United States, whether regulars, volunteers or militia, and in the marine corps, shall be as follows — viz. : Lieutenant-colonel, and all officers of a higher rank, thirty dollars per month ; major, twenty-five dollars per month ; captain, twenty dollars per month : first-lieutenant, seventeen dol- lars per month ; second-lieutenant, fifteen dollars per month ; and non-com- missioned officers, musicians and privates, eight dollars per month. The pen- sion for total disability for officers, warrant or petty officers, and others em- ployed in the naval service of the United States, shall be as follows — viz.. Captain, commander, surgeon, paymaster and chief-engineer, respectively ranking with commander by law, lieutenant commanding and master com- manding, thirty dollars per month ; lieutenant, surgeon, paymaster and chief- engineer, respectively, ranking with lieutenant by law, and passed assistant surgeon, twenty-five dollars per month ; professor of mathematics, master, as- sistant surgeon, assistant paymaster and chaplain, twenty dollars per month ; first assistant engineers and pilots, fifteen dollars per month ; passed midship- man, midshipman, captain's and paymaster's clerk, second and third assistant engineer, master's mate, and all warrant officers, ten dollars per month ; all petty officers, and all other persons before named employed in the naval ser- vice, eight dollars per month ; and all commissioned officers, of either service, shall receive such and only such pensions as is herein provided ft >r the rank in which they hold commissions." Only one full pension in any case will be allowed to the relatives of a de- ceased officer, soldier or seaman, and in order of precedence as set forth above. When more than one minor child or orphan sister thus becomes entitled to pension, the same must be divided equally between them. Invalid pensions, under this law, will commence from the date of the pen- sinner's discharge from service, provided application is made within one year thereafter. If the claim is not made until a later date, the pension will com- mence from the time of the application. Pensions of widows and minors will commence from the death of the officer, soldier or seaman, on whose service the claim is based. Army Pensions. — Declarations (including evidence of identity) are required to be made before a court of record, or before some officer of such court duly authorized to administer oaths, and having custody of its seal. Testimony other than that indicated above, may be taken before a justice of the peace, or other officer having like authority to administer oaths, but in no case will any evidence be received that is verified before an officer who is concerned in prosecuting the claim, or has a manifest interest therein. The forms below numbered, respectively, 1138 to 1142 , wilLguide applicants for pensions, of the army branch, in the several classes. Tha instructions here given are those issued by Government. In support of the allegations made in the claimant's declaration, testimony will be required in accordance with the following rules : 1. The claimant's identity must be proved by two witnesses, certified by a judicial officer to be respectable and credible, who are present and witness the signature of the declarant, and who state, upon oath or affirmation, their belief, either from personal acquaintance or for other reasons given, that he or she is the identical person he or she represents himself or herself to be. 2. Every applicant for an invalid pension must, if in his power, produce the certificate of the captain, or of some other commissioned officer under whom he served, distinctly stating the time and place of the said applicant's having been wounded or otherwise disabled, and the nature of the disability ; and that the said disability arose while he was in the service of the United States and in the line of his duty. 3. If it be impracticable to obtain such certificate, by reason of the death or removal oi said officers, it must be B>> stated under oath by the applicant, and 502 ABBOTTS' FORMS. Pension Laws. his averment of the fact proved by persons of known respectability, who must state particularly all the knowledge they may possess in relation to such death or removal ; then secondary evidence can be received. In such case, the ap- plicant must produce the testimony of at least two credible witnesses (who were in a condition to know the facts about which they testify), whose good character must be vouched for by a judicial officer, or by some one known to the department. The witnesses must give a minute narrative of the facts in relation to the matter, and must show how they obtained a knowledge of the facts to which they testify. 4. The usual certificate of disability for discharge should show the origin, character and degree of the claimant's disability ; but when that is wanting or defective, the applicant will be required to be examined by some surgeon reg- ularly appointed, unless clearly impracticable. 5. The habits of the applicant, and his occupation since he left the service, should he shown by at least two credible witnesses. If the applicant claims a pension as the widow of a deceased officer or soldier, she m ust prove the legality of her marriage, the death of her husband, and that she is still a widow. She must also furnish the names and ages of the decedent's children under sixteen years of age at her husband's decease, and the place of their residence. On a subsequent marriage her pension will cease, and the minor child or children of the deceased officer or soldier, if any be living, under the age of sixteen years, will be entitled to the same in her stead, from the date of such marriage, on the requisite proof, under a new declaration. Proof of the marriage of the parents and of the age of claimants will be re- quired in all applications in behalf of minor children. The legality of the marriage, in either case, may be ascertained by the certificate of the clergyman who joined them in wedlock, or by the testimony of respectable persons having knowledge of the fact, in default of record evidence, which last must always be furnished, or its absence shown. , The ages and number of children may be ascertained by the deposition of the mother, accompanied by the testimony of respectable persons Slaving knowledge of them, or by transcripts from the parish or town registers duly authenticated. A mother, to be entitled to a pension, as having been wholly or partly de- pendent on a deceased officer or soldier, must prove that the latter contributed to her support for a certain period, showing specifically in what manner and to what extent. If the claimant be a dependent sister, like proof will be required of the mar- riage of her parents, and of her relationship to the deceased. Guardians of minor claimants must, in all cases, produce evidence" of their authority as such, under the seal of the court from which their appointment is obtained. Applicants of the last four classes enumerated at the head of this chapter, who have in any manner aided or abetted the rebellion against the United States Government, are not entitled to the benefits of this act. Invalid applicants who are minors may apply in their own behalf, without the intervention of a guardian. Attorneys for claimants must have proper authority from those in whose be- half they appear. Powers of attorney must be signed in the presence of two witnesses, and acknowledged before a duly qualified officer, whose official char- acter must be certified under seal. In all cases the post-office address of the claimant must be distinctly stated, over his or her proper signature. Applications under this act will be numbered and acknowledged, to be acted on in their turn. In filing additional evidence, correspondents should always give the number of the claim as well as the name of the claimant. I. Army pensions. page 1138. Invalid's application for pension 593 1139. Widow's application 594 1140. Guardian's application on behalf of minor children 595 PENSIONS. 593 Army Pensions. PAGB 1141. Mother's application 595 1142. Guardian's application on behalf of orphan Bisters 596 Navy pensions and pkize-money. 1148. Invalid's application for pension 597 1144. Widow's application 597 1145. Guardian's application on behalf of minor ohildren 597 1146. Mother's application 598 1147. Guardian's application on behalf of orphan sisters 598 1148. Application for prize-money .- 598 I. Abmt Pensions. 1138. Invalid's Application for Army Pension. State of [or, District, or, Territory, designating ) County of where the application, is sworn to.] j ss ' On this day of , 18 , personally appeared before me, a [here give name and title of office!' duly authorized to administer oaths], within and for the county and State afoi esaid, A. B., a resident of , in the county of , and State of , aged years, who, being first duly sworn, according to law, * declares that he is the identical A. B. who enlisted in the service of the United States at . , in the State of , on the day of , 18 , as a [here designate rank — e. g., private, or, corporal], in company [designating it Try its letter], commanded by [here give name of captain], in the Regiment of [here name State] volunteers, cavalry [or, infantry, or, artillery], in the war of 1861, and was honorably discharged on the day of ,18 . t That while in the service aforesaid, and in the line of Ms duty, on or about the day of ,, in the year of our Lord 18 , he received the following wound [or other dis- ability, as thr case may be ; and here give a particular and minute account of the wound or other injury, a?id state how, when and wnere it occurred, where the applicant has resided since leaving the service, and what has been his occupation]. He makes this application for a pension, provided by the act of Congress approved July 14, 1862 [and hereby aproints J. K., of , his lawful attorney, and authorizes him to present and prosecute this claim, and to receive and receipt for any orders or certificates that may be issued in satisfaction thereof.](J) My post-office address is as follows 1 [stating it]. [Signature of claimant.] Also personally appeared before me, M. N. and 0. P., residents of , in the county of , and State of , to me well known as credible persons, who, being duly sworn, declare that they were present and saw said A. B. sign his name [or, make his mark] to the foregoing declaration, and that they believe, from the appearance of the applicant and their ac- quaintance with him, that he is the identical person he represents himself to he, and that his character and habits are good, and that his occupation (b) This clause, appointing an attorney, is not essential. 38 594 ABBOTTS' FORMS. Applications for Pensions. is that of a , and they further state that they have no interest in tho prosecution of this claim. [Signatures of witnesses.} Swoen to and subscribed before me, this day of , 18 , and 1 hereby certify that I have no interest, direct or indirect, in the prosecution ° f r t ^! cl f n - 7 ., , [Signature of magistrate.-] {Official seal, if any.] 1139. Widow^ Application for Army Pension. [As in preceding form to the*, continuing thus:] doth on her oath make the following declaration, in order to obtain the benefits of the provision made by the act of Congress, approved July 14, 1862, granting pensions: That she is the widow of 0. B., late of the county of . and State of , who was a [here designate rank — e. g., corporal, or, private] in Company [letter of company], commanded by [here give name of cnptain], in 1he Regiment of [here name State] volunteers, cavalry [or, infantry, or, artillery], mustered into the service of the United States from the State of , in the war of 1861, and who died [or, was killed] at [here specify the cause of death], on the day of ,18 , as this deponent verily believes. She further declares that she was lawfully married to the said 0. B., at , in die State of [by M. K, a clergyman, or other authorized functionary, on the day of , 18 ]; that her husband, the aforesaid C. B., died on the day above mentioned, as she verily believes, and she remained his faithful wife until his decease. She further declares that she has remained his widow ever since the death of her said husband [until the day of , whe- 1 . she married again her present husband, being of , all of whi-i will more fully appear by reference to the proof hereto annexed], t She further declares that she had, by said deceased husband, child now living, under the age of sixteen years, named, aged and residing as follows : , and that she has not, in any manner, been engaged in, or aided or abetted, the rebellion in the United States, and tha,t her maiden name was [and she hereby appoints J. K., of , her lawful attorney, to procure for her the pension mentioned in the above application, and to receive and receipt for any cer- tificate which may iss.ue in her favor in connection with the same, hereby ratifying and confirming whatever her said attorney may do in the premises].(c) My post-office address is [stating it]. [Signature of claimant.] Also personally appeared M. N". and O. P., residents of , in the county of , and State of , persons whom I certify to be respect- able and entitled to credit, and who, being by me duly sworn, say that they were present and saw A. B. sign her name [or, make her mark] to the fore- going declaration ; and they further swear that the- - have known the. parties above described to have lived together as husband and wife for years previous to and up to the time of deceased going into the aforesaid service of the United States, and they have every reason to believe, from the ap- (c) See preceding note. PENSIONS. 595 Application by Guardian. pearance of the applicant, and their acquaintaie* with her, that she is the identical person she represents herself to be, in. tnat they have no interest in the prosecution of this claim. Swoen to [etc., as in preceding form]. [Signatures of witnesses.] 1 140. Guardian's Application on Behalf of Minor Children, for Army Pension. [As in Form 1138 to the * continuing thus:] makes the following declaration, as guardian of the minor child of 0. B. deceased, in order to obtain for the henefit of the act of Congress approved July 14, 1862, granting pensions to minor children under sixteen years of age, oi deceased officers and soldiers. That he is the guardian of [naming the minor child or children, his ward or wards], whose father was a [here desig- nate rank — e. g., corporal, or, private], in Company [letter of company], commanded by [here give name of captain], of the Regiment of [here designate State] volunteers, infantry [or, cavalry, or, artillery], in the war of 1861, t who died [or, was killed] at in the State of , on or about the day of [here state the cause of death], while in the ser- vice aforesaid. That M. B , the mother of said child, was married to said [name the soldier], deceased, at , in the county of , and State of [by M. N., a clergyman, or other authorized functionary], on oi about the day of , 18 ; and that she died on or about the day of ,- 18 ; and that he knows of no record evidence of said mar- riage [or if any, refer to it], and that § his said ward is not in the receipt of any pension under said act, or any other act [and he herehy appoints J. K., of , his lawful attorney, and authorizes him to present and prosecute this claim, and to receive and receipt for any orders or certificates that may be issued in satisfaction thereof], (d) My post-office address is a9 follows [stating it]. [Guardian's signature.] Also personally appeared hefore me, M. N. and O. P., residents of in the county of , and State of , to me well known as credible persons, who, being duly sworn, declare that they were present and saw said A. B. sign his name [or, make his mark] to the foregoing declaration and that they believe, from the appearance of the applicant, and their ac quaintance with him, that he is the identical person he represents himseL to be ; and know that said parents of said ward were recognized as man and wife, and so reputed in the community in which they resided ; and that they have no interest, direct or indirect, in the prosecution of this claim. Swoen to [etc., as in Form 1138]. [Signatures of witnesses? 1141. Mother's Application for Army Pension. [As in Form 1138 to the *, continuing thus:] doth on her oath make the following declaration, in order to obtain the henefit of the provision of the (t See note (6). 596 ABBOTTS' FORMS. Application for Pensions act of Congress approved July 14, 1862. That she is the widow of 0. B. deceased, and mother of [naming the soldier], who was [here state rank — e.g., a corporal, or, a private] in Company [letter of company], commanded by [here give name of captain], of the [number] Regiment of [here designate the State] volunteers, infantry [or. cavalry, or, artillery], in the war of 1 861, t and who died [or, was killed] in the service aforesaid, at , in the State of , on or about the day of , 18 , of [here state the cause of death]. That her said son, upon whom she was wholly or in part dependent for support, left no widow, or minor child under sixteen years of age, surviving; and that she was married to said 0. B. at , in the State of , on or about the day of , 18 [by M. N"., a clergy- man, or other authorized, functionary] • that she knows no record evidence of said marriage [or if any, refer to it] ; that her said husband died on or about the day of ,18 ; that she has not in any way been engaged in, or aided or abetted the rebellion in the United State?; and that she is not in the receipt of a pension under the second section of the aforesaid act, or under any other act. Nor has she again married since the death of her said son. [She hereby appoints J. K., of , her lawful attorney, and authorizes him to present and- prosecute this claim, and to receive and receipt for any orders or certificates that may be issued in satisfaction thereof]. My post-office address is as follows [stating it]. [Signature of claimant.'] Also personally appeared before me, M. N. and 0. P., residents of , in the county of , and State of , to me well known as credible persons, who, being duly sworn, declare that they were present and saw said applicant sign her name to the foregoing declaration, and they believe, from the appearance of the applicant and their acquaintance with her, that she is the identical person she represents herself to be, and know that she was recognized by said C. B. as his lawful wife, and that she was so recog- nized by the community in which they resided; and that they have no interest, direct or indirect, in the prosecution of this claim. Swoen to [etc., as in Form 1138]. [Signatures of witnesses.] 1142. Guardian's Application on Behalf of Orphan Sisters, for Army Pension. [As in Form 1138 to the *, continuing thus :] doth on oath make the following declaration as guardian of the orphan sister of C. B., deceased, in order to obtain for her the benefit of the act of Congress, approved July 14, 1862, granting pensions to orphan sisters, under sixteen years of age, of deceased officers and soldiers. That he is the legally appointed guardian of [here give the name and age of each sister entitled], who is the only sur- viving daughter, under sixteen years of age, of 0. B., and M. B. his wife, both deceased, and sister of [naming soldier], who was a [state rank — e. g., corporal, or, private] in Company [letter of company], commanded by [here give name of captain], of the [number] Regiment of regulars [or, volunteers, designating the State], infantry [or, cavalry, or, artillery], in the war of PENSIONS. 597 Nuvy Pensions. 1861, and who died [or, was killed] in. the service aforesaid, and in the line of duty, at , in the State of , on or about the day of , 18 [here state cause of death]. That said 0. 1!., brother of his said ward, npon whom she is wholly or in part dependent for support, having left no widow, minor children, or mother, the claimant, as guardian and in behalf of said ward, refers to the accompanying evidence, and to such as may be found in the department, to establish this claim. He farther declares that [continue as in Form 1140 from the § to the end]. II. Navy Pensions and Phize-Money. 1143. Invalid's Application for Navy Pension. [As in Form 1138 to the*, continuing thus:] declares that he is the iden- tical who enlisted in the naval service of the United States at , in the State of , on the day of , 18 , as a , on board of the , commanded by , in the , and was honorably dis- charged on the day of , 18 ; that he is feet inches in height [light] complexion[sandy] hair [blue] eyes, and by occupation a [sailor]. [Continue as in Form WZQfrom the t to the end]. 1144. Widow's Application for Navy Pension. [As in Form 1138 to the *, continuing thus:] doth on her oath make the following declaration, in order to obtain the benefits of the provision made by the act of Congress approved July 14, 1862, granting pensions : That she is the widow of 0. B., who was a in the United States navy, and on board the , commanded by , in the , who died [or, was killed] at [here state the cause of death], on the day of , 18 , as this deponent verily believes. She further declares that she was lawfully married to the said C. B. at , in the State of [by M. N"., a clergyman, or other authorized fanctionary, on the day of , 18 ] ; that her husband, the aforesaid 0. B., died on the day above mentioned, as she verily believes, and she remained his faithful wife until his decease, and has remained his widow since the death of her said husband. The personal description of the said 0. B., her deceased husband, is as follows : Age, about years ; height, feet inches ; eyes ; complexion ; hair ; occupation at time of enlistment, a [Continue as in Form M39from the t to the end.] 1145. Guardian's Application, on Behalf of Minor Children,for Navy Pensions. [As in Form 1138 to the *, continuing thus:] makes the following declara- tion, as guardian of the minor child [or, children] of C. B , deceased, in or- der to obtain for him [or, them] the benefit of the act of Congress approved July 14, 1PP2 : That he is the guardian of [naming the minor child or chil- 59 8 ABBOTTS' FORMS. Applications for Pensions. dren, hii ward or wards], child [or, children] of said deceased, who was a in the United States navy, and on board the , commanded by , in the . [Continue as in Form 1140 from the t to the end.] 1146. Mother's Application for Navy Pension. [As in Form 1138 to the *, continuing thus:] makes the following declara- tion, in order to obtain the benefit of the act of Congress approved July 14, 1862: That she is the widow of C. B., deceased, and mother of [naming sailor], who was a in the United States navy, on hoard the , 'commanded by . [Continue as in Form 1141 from the t to the end.] 1147. Guardian's Application on Behalf of Orphan Sisters. [As in Form 1138 to the *, continuing thus :] makes the following declara- tion, as guardian of the orphan sister of 0. B., deceased, in order to obtain for the benefit of the act of Congress approved July 14, 1862, grant- ing pensions to orphan sisters, under sixteen years of age, of deceased offi- cers and soldiers : That he is the legally-appointed guardian of [name the minor child or children, his ward or wardu] who is [or, are] the only sur- viving daughter , under sixteen years of age, of and his wife, both deceased, and sister of [naming sailor], who was a in the United States navy, on board of the , commanded by , of , who died [or, was killed] in the service aforesaid, and in the line of duty, at , in the State of , on or about the day of ,18 [here state the cause of death] ; that said 0. B., brother of his said ward , upon whom she is wholly or in part dependent for support, having left no widow, minor children or mother, the claimant, as guardian and in behalf of said ward , refers to the accompanying evidence, and to such as may be found in the department, to establish this claim. He further declares that [continue as in Form 1140 from the § to the end]. 1148. Application for Prize-money. State [etc., as in Form 1138]. I, A. B., do solemnly swear that I am the identical A. B. who served by that name as a on board the United States , in the year 18 , when she captured the prize , and who is named in the certificate of discharge, dated , 18 , signed by , which is herewith presented and surrendered. I also solemnly swear that I am now years of age ; am a native of ; that I enlisted at , on or about the day of ,18 , in the grade of ; that my ship's number was . 1 also solemnly swear that I have not made any previous assignment of or application for the prize-money now claimed by me ; and further, that I now reside at , and am employed as a , and that I am unable to obtain a certificate from any of the officers under whom I served [and the applicant hereby appoints J. K., of , as his lawful attorney, and PETITION'S. 599 Prize Money Claim. authorizes him to present and prosecute his claim, and to receive and re- ceipt for all orders or moneys that may be issued or paid in satisfaction thereof. [Signature of claimant.] Swoen to and subscribed before me, this day of , a. d. 18 . And I certify that, to the best of my knowledge and belief, the statement of deponent, in regard to his residence and employment, is true, my know- ledge of deponent being derived from the statements of M. N. and O. P , the subscribing witnesses. And I also certify that the above-named de- ponent appenrs to be about the age stated by him ; that be is about feet inches in height, of complexion, hair, and eyes. [Signature and title of notary.] State op [etc., as in Form 1138]. Ojj this day of , 18 , before me, a notary public in and for the State and county aforesaid, duly qualified to administer oaths, personally appeared M. N., residing at , and employed as a ; and also O. P., residing at , and employed as a , who being duly sworn, depose and say : That they reside and are employed as aforesaid ; that they have a personal knowledge of A. B., who signed the foregoing oath of iden- tity in their presence ; and that he is the identical A. B. who served on board the United States as a , from , 18 , to , 18 , and who is named in certificate of discharge, dated ,18 , and signed by , which he affixed in their presence to this original receipt; that their knowledge of him was obtained [here state how]. And they fur- ther depose and say, that they have no interest in the claim of the said A. B. for prize-money. [Signatures of witnesses.] Sworn? to and subscribed, the day and \ year above written, before me, ) [Signature, title and seal of notary.] I oeetift that the signature to the foregoing oath of identity is witnessed by me ; that it was signed in my presence by A. B., who is well known to me as the identical person who served by that name on board the United tStaoes , when she captured the prize [Signature] United States Navy. CHAPTEE LXX. PETITIONS. A Fettctok is a written request addressed to a public official, person, body tn tribunal. No particular form is geteiilty requisite, but the appropriate frame oi commencement and conclusion in the jwb«jS most frequently arising^ fire as follows 600 ABBOTTS' FORMS. Petitions. PAGE 1149. Petition to Congress 600 1150. To the governor of a State 600 1151. Toacourt 600 1152. To a judge of a court 600 1149. Petitior. to the Congress of the United States. To the honoeablb the Senate and House of Representatives of the United States of America, in Congress assembled : The petition of the subscribers, citizens of , respectfully shows [here state the request and the facts upon which it is urged]. And your petitioners will ever pray, etc. . [Signatures.] 1150. Petition to the Governor of a State. To his exoellenoy [naming him] the Governor of the State of : The petition of [etc., continuing as above]. 1151. Caption of a Preliminary Petition to the Court. To the Supreme Court of the State of New York [or other court, giving its full official designation] : The petition of , of the city of , shows. , 1152. Caption of a Preliminary Petition to a Judge. To Hon. James Kent, one of the justices of the Supreme Court [or other court or magistrate, as above] : The petition of [etc., as above]. CHAPTER LXXI. POOR LAWS. Obligation of relatives. — The statute(a) provides that, the father, mother and children who are of sufficient ability, of any poor person who is blind, old, lame, impotent or decrepit, so as to be unable by work to maintain himself, shall, at their own charge, relieve and maintain such poor person in such man- ner as shall be approved by the overseer of the poor of the town where such poor person may be. If such rel itives fail to do so, the overseer of the poor of the town should (a) 1 «,*>. Stat. ofX J., 614. POOR LAWS. 601 Application to Compel Support by Relative. apply to the Court of Sessions, which court, after summarily examining into the matter, may compel such relief, directing the relative or relatives who shall perform the duty, in the following order : The father shall be first re- quired to maintain the poor person ; if there be none of sufficient ability, then the children of such poor person ; and if no children of sufficient ability, then the mother. If it appear that any of the persons so required are able to maintain in part only, the court will direct what proportion or how much each shall sus- tain. Obedience to the order may be enforced by a suit, and the property of the person so ordered to contribute to the support of a poor relative may be taken and sold to enforce compliance with the order. Public relief. — Where there are no relatives able to contribute to such main tenance, a poor person who is blind, lame, old, sick, impotent or decrepit, or in any other way disabled or enfeebled, so as to be unable by his work to main- tain himself, is to be maintained by the county or town in which he may be. The mode in which public relief is to be provided varies very much in the different States, and in some of the States different systems are adopted for different localities. The forms given below are those used in some of the most frequent proceedings in the system most extensively adopted in the State of New York, and will serve, to some extent, as a guide in framing forms appro- priate to peculiar and local statutes. The proceedings in cases of Bastardy and indigent Insane are treated under those titles. PAOZ 1158. Application to compel a person to support a poor relative 601 1154. Notice to the relative, of application 602 1155. Warrant to seize the goods of an absconding father, husband or mother. . . 802 1156. Return of overseer 602 1157. Order by the sessions 602 1158. Notice from one town liable to support its own poor, to another, requiring the overseers to provide for support of a pauper ., 603 1159. Notice contesting alleged settlement .' 60S 1160. Decision by the superintendents as to the settlement of a pauper 603 1161. Superintendent's notice that pauper will be supported at the expense of a town, in a county where the towns support their own poor 604 1162. Justice's order for temporary relief of a pauper 604 1 153. Application to Compel a Person to Support a Poor Relative. To the Court of Sessions of the county of : The application of the undersigned A. B_, overseer of the poor of the town of [or, county superintendent of the poor], in said county, respectfully represents, that 0. D., a poor person, who is blind [or, old, lame, impotent, or, decrepit], so as to be unable by work to maintain him- self [or, herself], is in the said town ; that E. D , who resides at , in the said county, is the father of the said 0. D., and has failed at his own charge to relieve and maintain the said 0. D. in a manner approved by the undersigned : Wherefore, pursuant to the statute of this State, the under- signed hereby applies for an order to compel the said E. D., who is of suffi- cient ability, to relieve and maintain the said 0. D. in the manner to bo in such order specified. [Signature and title.] [Date.] 6°2 ABBOTTS' FORMS. Compelling Support of Pauper Relatives. 1154. Notice to the Relative, of Application. Please take notice, that on the day of , at o'clock in the noon, or as soon thereafter as the application can he heard, the under- signed will apply to the Court of General Sessions of the peace of the county of , at , for an order to compel the relief asked for in the within application. [Signature and title.] [Bate.] [Address U relative of pauper.] 1155. Warrant to Seize the Goods of An Absconding Father, Husband or Mother. County of , ss. To , overseer of the poor of the town of , in said county : It appearing to us, two of the justices of the peace of said county, as well by the application and representation to us made by the said overseer, as upon due proof of the facts before us made, that 0. D., late of said town, has absconded from his wife and children, leaving said wife and children [likely to become] chargeable to the public for support; and that said 0. D. has some estate, real or personal, in said county, whereby the public may be wholly or in part indemnified against said charge : We, thekefohe, au- thorize you to take and seize the goods, chattels, effects, things in action, and the lands and tenements of said 0. D., wherever the same may be found in said county ; and you will immediately thereupon make an inven- tory of the property by you taken, and return the same, together with your proceedings, to the next Court of Session's of said county. Given under our hands, at , this day of , 18 . [Signatures of two] Justices of the Peace. 1156. Beturn of Overseer. CotTNTY OF , SS. To the Court of Sessions of said county : The undersigned, to whom the annexed warrant is addressed, on the day of ,18 , in the said county of , by virtue of the said warrant, seized the property of which an inventory is hereunto annexed, and the pro- ceedings of the undersigned, subsequent to the said seizure, are as follows [here state the proceedings]. All which is herewith respectfully returned. [Bate.] [Signature and title.] 1157. Order by the Sessions. At a Court of Sessions held in and for the county of , at , in the city f , on the day of , present [naming the judges] : POOR LAWS. 603 Public Relief. In the matter of the application for the support of 0. D., a poor person. On reading and filing the application of the overseers of the poor of the town of , and after hearing the proof and allegations of both of said parties ; and it appearing to the court that A. B. is a poor person residing in the town of , is blind [or, old, lame, impotent, or, decrepit], so as to be unable to work, to maintain himself, and E. D., his father [or, his son, he having no father, or otherwise, as the case may be] is of sufficient ability to relieve and maintain the said 0. D., but neglects and refuses to do so, although requested by the said overseers: Orleked, that the said E. D. relieve and maintain the said 0. D. in a manner approved by the said overseers ; and for that purpose shall pay to the said overseers the sum of on day of each week until the further order of the court, which said sum the said court adjudges necessary for the support of the said C. D. And it is further ordered, that the said E. D. pay to the said overseers the sum of , the costs and expenses of this application. 1158. Notice From One Town Liable to Support Itt Own Poor, to Another, Requiring the Overseers to Provide for Support of a Pauper. County of , ss. To the overseers of the poor of the town of : You are hereby notified, that A. B., a pauper, who has gained a settle- ment in your town, to which he belongs, is in the town of , in said county, and is supported at the expense of the said town of , for which the undersigned are overseers. You are therefore required to pro- vide for his relief and support. [Signatures and titles.} [Date.] 1159. Notice Contesting Alleged Settlement. To the overseers of the poor of the town of : You are hereby notified that the undersigned will appear before the su- perintendents of the poor of the county of at , on the day of , at o'clock in the noon, to contest the alleged settlement of A. B., a pauper, stated in your notice of the day of [Date.] [Signature and title.] 1160. Decision by the Superintendents as to the Settlement of a Pauper County of , ss. The undersigned, superintendents of the poor of said county, having con- vened, as required by notfce of the overseers of the poor of the town of , in said county, to lear and determine a controversy between the 604 ABBOTTS' FORMS. Poor Laws. said overseers and the overseers of the town of , in said county, con- cerning the settlement of A. B., a pauper, upon hearing of the facts, hereby decide that the legal settlement of the said A. B., as such pauper, is [notj in the said town of . And we award to the overseers of the poor of the town of , dollars costs of said proceeding, by them ex- pended. Given under our hands and seals, at , this , day of ,18. [Signatures of] Superintendents of the Poor. 1161. Superintendents' Notice that Pauper will he Supported at the Expense of a Town, in a County where the Towns Support Their Own Poor. County of , ss. To the overseers of the poor of the town of : A.,B., a pauper, having been sent to the poorhouse as a county pauper, and the undersigned, superintendents of the poor of said county, having in- quired into the facts, and being of opinion that the said pauper has a legal settlement in the town of, , in said county, pursuant to the statute, you are hereby notified that the expenses of the support of said pauper will be charged to the town of , unless you, within days, after the service of this notice, show that the said town of ought not to be so charged. [Signatures and titles.] [Bate.] 1162. Justice's Order for Temporary Belief of a Pauper. The overseers of the poor of the town of , having applied to the undersigned, a justice of the peace of the said town, relative .to A. B., a person applying to them for relief, and the undersigned having examined into the facts, and it appearing that the said A. H., so applying, requires only temporary relief [or, is sick, lame, or otherwise disabled, so that he can- not be conveniently removed to the county poorhouse], the undersigned hereby orders the said overseers to apply dollars per week for the relief of the said A. B., until they have expended the sum of dollars, or such sum less than that amount as may be found sufficient for the temporary relief of the said pauper. [Signature ar.d title.] [iJxte.] POWERS OF ATTORNEY. tf05 General Principles. CHAPTEE LXXII. POWERS OF ATTORNEY. A power OF attorney is a written delegation of authority, by which one person enables another to do an act for him. An agent acting under a power of attorney is usually termed an attorney in fact, by way of distinction from an attorney at law. No one can appoint an attorney in fact who is not legally capable of acting for himself. Not only all persons who are capable of acting for themselves, but even some who are disqualified from acting in their own capacity, if they have sufficient understanding, as minors of a discreet age, and married women, may act as attorneys in fact for others. The authority given is termed either general or special ; according as it extends to the transaction of all the business of the constituents or grantors of the power, ■ or is confined to doing some special act or business particularly named in the letter of attorney. Where a power is special, and the authority limited, the attorney cannot bind his principal by any act in which he exceeds that authority. The au- thority of the attorney is to be strictly construed ; though it is to be taken to include all necessary means of executing it with effect. Hence a party dealing with the attorney in fact of another should look to the terms of the power to see that the authority given is sufficiently broad. If the power prescribes any condition in its execution, such as for instance the consent of a third person, it must be strictly pursued. Where a power is vested in several persons, jointly, all should unite in exe- cuting it. It is provided, however, by statute in New York, in the case of powers relating to lands, that after the death of one or more such pers ons the power may be executed by the survivors.(a) A power is said to be coupled with an interest when the attorney has, by virtue of it, or of the instrument containing it or otherwisej a present or future beneficial interest in the subject-matter. A naked authority may be revoked at any time by the person who gave it, and expires with his life ; but a power coupled with an interest is not revoked by the death of the grantor, nor is it revocable at his pleasure. A power of attorney which forms part of a con- tract, and is security for money, or for the performance of any act which is considered valuable, is regarded as coupled with an interest, and is irrevocable. One acting under a power giving only a delegated discretionary authority cannot give to another person a general authority to execute the same, unless he is specially authorized to do so by the instrument creating the power. Thus, if a trustee have a power to sell lands, he cannot give a general authority to an agent to sell and convey, or to contract absolutely for a sale ; though ho may empower the agent to contract, subject to his ratification, and to convey after ratification ; but the better practice is for the trustee to executa the conveyance himself. So an attorney, acting under a power, cannot delegate his authority or appoint a substitute, unless the power expressly gives authority to do so. A revocation of a power takes effect, as to the agent, from the time that it, is communicated to him, and, as to third persons, from the time that it is made known to them ; but, as respects third persons, the question of notice depends in each case upon its own peculiar circumstances. The death of an attorney authorized to appoint an attorney under him, and to revoke such appointment at- his pleasure, necessarily revokes the power of a substitute so appointed. , Powers of attorney are usually under seal. If the power is to convey land (a) I Sen. Stat., 785; §112. 606 ABBOTTS' FORMS. Powers of Attorney. or do any other act requiring the execution of an instrument under sea), the power must be executed and attested with the same formalities which the law requires in the execution of the principal instrument, such as acknowledgment, record, etc. The attorney, in a simple power of attorney, must act, not in his own name, but in the name of his constituent ; and hence, if it is to execute a deed, the con- stituent, not the attorney, should be named as the grantor ; and the attorney should sign the constituent's name, adding his own — thus, A. B. by C. D., his attorney. PAGH 1163. Short forn 606 1164. General form, with power of substitution and revocation 606 1165. Power to collect debts 607 1166. Power to collect rents 607 1 167. Power to receive dividends, etc 607 1168. Power to receive a legacy 607 1169. Power to transfer stock 608 1170. Power to sell vessel ? 608 1171. Power to manage real property 608 1172. Power to sell and convey land 608 1173. Power to mortgage land 609 1174. Power to renew lease and sell the term 609 1175. Power to make partition 609 1176. Power to effect insurance 610 1177. Power to carry on business 610 1178. Another form «10 1179. The same ; a fuller form , 611 1180. Power to collect army or navy claim 612 1181. General custom-house power 618 1182. Special custom-house power 618 1183. Confirmation of attorney's act 614 1184. Power to several, to act together, or either one separately 614 1185. Power to several jointly. 614 1186. A power of attorney to two persons ; but in case of the death, absence or refusal of both or either, then to another alone, or with either of them that will act. 614 1187. Substitution of attorney 615 1188. Eevocation of power of attorney 615 1163. Short Form. Know all men by these presents, that I, A. B., of the town of , in the county of , and State of , do hereby make, constitute and appoint Y. Z., of the town of , in the county of , and State of , my true, sufficient and lawful attorney, for me and in my name to [here state subject-matter of power ; see forms below], and to do and per- form all necessary acts in the execution and prosecution of the aforesaid business in as full and ample a manner as I might do if I were personally present. In witness [etc., as in following form]. 1164, General Form, With Power of Substitution and Revocation. Know all men by these presents, that I, A. B., of , in the county rf , and State of , have made, constituted and appointed, and POWERS OF ATTORNEY. 607 Special Authority. by these presents do make, constitute and appoint, T. Z., of , ray true and lawful attorney, for me, and in my name, place and stead, and to my use * [here state the subject-matter of the power ; see f 01 ms below], giving t my said attorney full power to do every thing whatsoever, requisite and neces- sary to be done in the premises, as fully as T could do if personally present, with full power of substitution and revocation, hereby ratifying and con- firming all that my said attorney, or his substitute, shall lawfully do, or cause to be done, by virtue hereof. In witness whereof, I have hereunto set my hand and seal, the day of , in the year one thousand eight hundred and Signed, sealed and delivered ) [Signature of constituent^ in presence of ) [Signature of witness!] 1165. Power to Collect Debts. [As in either preceding form, inserting at the * the following :] to ask, demand, sue for, collect, receive and give acquittance for all sums of money, debts and demands whatsoever, which are or shall be due, owing and be- longing, to me, or detained from me, by C. D., of , his heirs, executors and administrators, or any of them [or, by any person or persons residing or being in ]. 1166. Power to Collect Bents. [As in Form 1163 or 1164, inserting at the* the following:] to ask, demand, distrain for, collect and receive, all such rents, and arrears of rent, as now are or may hereafter be due, or owing to me, from , of , or any of them, as tenants or occupants of any lands, tenements or heredita- ments, belonging to or claimed by me, situate in , in the State of , or which may be due from, or payable by, any other person or persons whomsoever, as tenants, occupiers, lessees or assignees of any term or terms, of such lands, tenements or hereditaments, or any p.irt of them ; and upon receipt thereof, to give proper acquittances and discharges thereof. 1167. Power to Receive Dividends, etc. [As in Form 1163 or 1164, inserting nt the * the following:] to receive the dividends which are or shall be payable, on all the stock standing in my name on the books of the treasury of the United States [or, on the books of the Bank of , ns the case may be], and give receipt therefor. 1168. Power to Receive a Legacy. Know jix men by these presents, that whereas M. N., late of , de- ceased, by his last will and testament did give and bequeath unto me, A. B.,. ot , a legacy of dollars, to be paid unto me on , of which said will, E. F., of , and G. H., of , are joint executors, as by the said will appears: Now know ye, that I, the said A. B., have made, constituted and appointed, and by these presents do make, constitute and appoint T. Z., of , my true and lawful attorney, for me and in my 608 ABBOTTS' FORMS. Powers of Attorney. name, and for my use and benefit, to ask, demand and receive, of and from the said E. F. and G. H., the legacy given and bequeathed unto me, the said A. B., by the said will of the said M. N"., as aforesaid ; and upon receipt thereof by, or payment thereof to my said attorney, to give a general release or discharge for the same ; giving [continue as in Form 1 1 64 from the t to the end]. 1169. Power to Transfer Stoch. [As in Form 1163 or 1164, inserting at the * the following:] to sell, transfer and assign, all stock [or, shares of stock] of the Company standing in my name on the books of the said company. 1170. Power to Sell Vessel. Know aix men by these presents, that we, A. B. (fths), and 0. D. (?ths), owners of bark Mary, of , have made, constituted and ap- pointed, and by these presents do make, constitute and appoint Y. Z., ot , our true and lawful attorney for us, and in our names, places and stead, to sell, convey and transfer our, and each of our aforesaid interests in said bark Mary, her tackle, apparel and furniture, to any person or per- sons, and for such sum or sums of money as he may deem proper, and to execute and deliver to the purchaser, in our and each of our names, good and sufficient bill or bills of sale, or other instrument of conveyance there- , for, and to receive the purchase-money therefor, to our use, giving [continue as in Form 1164 from the\ to the end]. 1171. Power to Manage Real Property. [As in Form 1163 or 1 164, inserting at the * the following :] To exercise the general control and supervision over all my lands, tenements and here- ditaments, in the county of ; to prevent, by all lawful means, the commission of any trespass or waste, or other injury thereupon ; and, at my expense, and under the advice of my counsel, M. N\, Esq., of [or such other counsel as my said attorney .may employ], to sue for protection against any such injury, and to collect, recover and receive, and compound for, any damages which may accrue by means of the commission of any trespass or waste upon the said lands, tenements and hereditaments, or any part thereof, by any person whomsoever. 1172. Power to Sell and Convey Land. [As in Form 1163 or 1164, inserting at the* the following :] To grant, bargain and sell(S) , or any part thereof, for such price, and on such (6) A power to sell and convey does not v. Servoss, 3 Barb., 128; dimming v. in itself confer a power to mortgage. Williamson, 1 Sandf. 04., 17 ; Albany There is a substantial difference between Fire Ins. Oo. v. Bay, i Jf. T. (4 Comst.), raising money by mortgage and sale; and 9. Nor does such a power authorize one a power to raise it by one of these methods to license cutting timber, etc. Hubbard v. merely, puts a negative on the other. Elmer, 7 Wend., 446. Bloomer v. Waldron, 8 Bill, 861 ; Coutant POWERS OF ATTORNEY. 609 Special Authority. terms, as to him shall seem meefc,(c) and for me, and in my name, to make, execute, acknowledge and deliver, good and sufficient deeds and convey- ances for the same, either with or without covenants and warranty.(eZ) 1173. Power to Mortgage Land.[e) [As in Form 1163 or 1164, inserting at the* the following :] to borrow upon the security of my , in , a sv a or sums not exceeding dollars, and to sign, seal and deliver a bond or bonds for the pay- ment of such sums [here state terms of payment, if the attorney is to "be limited in this rexpect], and to sign, seal and deliver, as collateral thereto, a mortgage or mortgages upon said estate, with the usual power of sale, and interest and insurance clauses, and other usual provisions and covenants. 1174. Power to Renew Lease and Sell the Term. [As in Form 1163 or 1164, inserting at the* the following :] to renew or agree for a renewal of the lease, by which I hold the lot whereon stands my house, known as No. , in street, in city, to lease said house, or to sell and convey said house for cash, or in part for a purchase- money mortgage, and in case of such sale to assign the lease whereby I huld or may then hold the lot whereon said house stands. 1175. Power to Make Partition. [As in Form 1163 or 1164, inserting at the* the following :] to make par- tition and division with the other heirs of my late father, deceased, of his real estate [or, of his estate both real and -personal], and to accept and re- ceive my share of his personal estate; and, upon any partition or division, to enter upon and take possession of any lands, tenements or hereditaments, which may be set off to me as my share of the real estate aforesaid ; and to enter into any covenant or agreement respecting my share [and the shares of the other heirs] of his estate [real or personal], which my said attorney shall think reasonable and for my interest ; and, in my name and for my use, to demand, sue for and take possession of, all and singular lands, tene (c) A power to sell land for a certain principal. Nixon®. Hyserott, 5 JoTms., 58; Bum means for ready-money, where there Gibson v. Colt, 7 lb., 390. is nothing in the power, or in the usage of («) A power to mortgage is not implied trade, to manifest a different intention, in an ordinary power to sell. It should Ives v. Davenport, 3 Hi.ll, 378. be expressed. A power to mortgage im- {d) A power to sell, and on snch sale to plies a power to authorize the mortgagee execute in the name of the principal, such to sell in default of payment, for the power conveyances and assurances in the law of to sell is one of the customary and lawful the premises as needful or necessary ac- remedies of the mortgagee recognized by cording to the judgment :f the attorney, statute. Wilson, v. Troup, 2 Cow., 195; does not authorize the att.-rney to execute affirming S. C, 7 Johns. Gh., 25. a deed with covenants st as to bind the 39 610 ABBOTTS' FORMS. Powers of Attorney. ment9 and hereditaments, sum and sums of money, goods and chattels, withheld from me, to which I am entitled, and which I may lawfully claim from the heirs, executors or administrators of my said father, or any other person or persons whatsoever. 1176. Power to Effect Insurance. [As in Form 1163 or 1164, inserting at the* the following :] to effect in- surance on [here briefly designate the property to be insured], with the Insurance Company, in the city of , on such terms as to my said attorney shall seem meet and proper ; to sign any application for said insurance, any representation of the condition and value of said property, articles of agreement, promissory or premium note, and all other papers that may be necessary for that purpose; and also to cancel and surrender any policy he may obtain, and on such cancelling, or the expiration thereof, to receive any dividend, return premium or deposit, that may be due, and on such receipt full discharge to give therefor. 1177. Power to Carry on Business. [As in Form 1163 or 1164, inserting at the* the following :] to conduct and carry on the business of a merchant tailor at ; to buy and sell , to receive on commission and to manufacture , and all goods, and merchandise, appertaining to said business, as he may deem proper; to make and execute, sign, seal and deliver, for me and in my name, all bills, bonds, notes, specialties or other instruments in writing whatsoever, which shall be necessary to the proper conducting of the said business.(/) 1178. Another Form. [As in Form 1163 or 1164, inserting at the* the following :] to take charge of my business as manufacturer and vendor of medicines ; to purchase and sell, either for cash or on credit, all such articles and property as he may deem useful and proper as connected with said business ; sign, accept and indorse notes, drafts and bills; to state accounts; to sue and prosecute, collect, compromise or settle all claims or demands due or to become clue, now existing or hereafter to arise in my favor, and to adjust, settle and pay all claims and demands which now exist against me or may hereafter arise, either as connected with the foregoing business or otherwise; to take the general management and control of my affairs, property and business, and therein to buy, sell, pledge or mortgage, and to execute and enter into (/) This power is often given in broader duct of such business as to my said at- terms. A power of attorney given by a torney shall seem meet in his good discre- merchant "generally to conduct' in my tvon," authorizes drawing bills on drawees place and stead my commercial business, 'ivho had no effects of the principal. Dolus and to sign my name whenever requisits i>. Frosch, 1 Den., 367. or expedient in the transaction and con- POWERS OF ATTORKEY. 611 For Conduct of Business. bonds, contracts, mortgages and deeds connected therewith, and in general do all other acts and things which he may consider useful or necessary con- nected with my business, property and interests. 1179. The Same; A Fuller Form. Bjrow all men by these presents, that I, A. B., of the city of , being about to depart from the said city temporarily, and about to proceed to Europe, have made, nominated, constituted and appointed in my place and stead, and by these presents do nominate, constitute and appoint, and in my place and stead put, Y. Z., of the city of , my true and lawful attorney, for me and in my name, place and stead, and to my use, during my said absence from the said city, to ask, demand, sue for, levy, require, recover and receive, all and all manner of goods, chattels, debts, duties, rents, sum and sums of money and demands whatsoever due. or hereafter to become due and owing, or belonging unto me, on account of the business now carried on by me in the said city of , as , or for or on any other account whatsoever by any person or persons whomsoever, and upon the receipt thereof or of any part or parts thereof to make, give and execute acquittances, receipt, releases or other discharges for the same, whether under seal or otherwise, and to give, execute and deliver, in my own name, or in the name of my said attorney, all checks, acknowledgments, agree- ments and all other instruments in writing of whatever nature, as to my said attorney may seem meet for carrying on the said business; to enter into, and take possession of any lands, tenements or hereditaments of mine that may be unoccupied or become vacant, or to the possession of which I may be or become entitled, and all and every the real estate of me, the said A. B., and for me and in my name and to my use, to receive and take all or any rents, issues and profits of all or any such lands, tenements, hereditaments, or any of them, and to let the same in such manner as my said attorney shall think proper, and from time to time renew leases, but not for a period extending beyond the day of , in the year one thousand eight hundred and ,(g) and also all deeds, leases, agreements, and writings in that behalf requisite and necessary for me and in my name, to make, seal and deliver as my acts and deeds, and for me, and in my name, to take any ejectment or other judicial proceeding, and make or cause to be made, any avowries or cognizances, and for me, and in my name, to commence and prosecute any suits, or actions, or other legal proceedings, for any goods, chattels, debts, duties, demands, matter, cause or thing whatsoever due or belonging, or to he due and belonging unto me, or to be demanded, or th;* may be demanded by me in iny court of law or equity, or elsewhere ; ana the same to prosecute and follow, or to discontinue the (g) If the lease exceeds the term re- sisting term, the residue of the existing Btricted by the power it is void at law. term and the future term must not to- And where, under a power to lease for a gether exceed the power ; if they do, the number of years, a second lease is made lease is utterly void at law. Sinclair r. to commence after the expiration of a sub- Jackson, 8 Cow., 543. 612 ABBOTTS' FOEMS. Power to Collect Pension, etc. same or become nonsuit therein, if he shall see cause, and also to make an end, composition or' agreement of and for such goods, chattels, debts, fluties, demands, matter, cause or thing, or any part thereof; and also for me and in my name to commence, carry on, institute or prosecute any proceeding, civil or criminal, or any other way howsoever, for the infringement of my rights as the proprietor of , and for the punishment of any person or persons for the infringement thereof, or the imitating, counterfeiting, or selling as real, spurious imitations of the said , or of the labels or bills used in the said trade or business; and also for me and in my name, to use and take all such courses, remedies, and carry on and conduct the said trade or business, and for the recovering, receiving, obtaining and getting any lands, tenements, rents, hereditaments, goods and chattels, debts, demands, duties, sum and sums of money, or other things whatsoever, that is, are or shall be, or by my said attorney shall be conceived or thought to be unto me belonging, appertaining, due, owing or payable in my own right or otherwise howsoever, as I myself might use or take if I were present in person ; and also for me and in my name to appear, make answer, and defend in all actions and suits whatsoever, as well real as personal or mixed, which are, or hereafter shall be commenced against me, by any person whatsoever; and also for me and in my name to settle and adjust with each and every person or persons all accounts, dues and de- mands, subsisting or to subsist between them, any or either of them, and me, and to compound, arbitrate and agree to the same in such manner as my said attorney shall think proper; and also for me and in my name, place and stead, to engage, hire and employ all and all kinds, of workmen, elorks, assistants and servants, for the better and more effectually enabling my said attorney to conduct and carry on the said trade and business, and to discharge any or all of such workmen, clerks, assistants or servants now employed, engaged or retained in the said trade or business; and for the better doing, acting, performing or executing of all or any of the premises, I do hereby further give unto my said attorney full power a^d authority to constitute, appoint, authorize, and in his place and stead put and substitute one or more attorney or attorneys for me, and as my attorney or attorneys, or the same, at his pleasure, again to revoke, and other or others in his or their place to substitute and appoint, and to do, execute, perform and finish for me, and in my name, all and singular those things which shall be ex pedient and necessary, or which my said attorney shall judge expedient and necessary in and about, for, touching or concerning the premises, or any of them, as thoroughly, amply and fully as I, the said A. B., could do concerning the same, being personally present; and whatever my said attorney or his substitute shall do or cause to be done, in, about or concerning the premises, and any part thereof, I hereby ratify and confirm. In witness [etc., as in Form 1164]. 1180. Power' to Collect Army or Navy Claw: Know all men by these piesents, that I, A. B., have made, constituted and appointed, and by these presents do make, constitute and appoint Y. Z., POWERS OF, ATTORNEY. 613 Custom-house Power. of , my true and lawful attorney, for me and in my name, place and stead, to prosecute my claim to , filed in the office at Washing- ton, D. 0., under the act of , and also to , and hereby revoking all other powers of attorney, giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney, or his substitute, shall lawfully do or oause to be done by virtue hereof. And I hereby certify that my former attorney has no claim on me for fees or advances of any kind whatever, on account of the claim herewith trans ■ ferred to the aforesaid attorney. In witness [etc., as in Form 1164]. 1181. General Custom-house Power. As in Form 1164 to the *, continuing thus:] to receive and enter at the custom-house of the district of , any goods, wares or merchandise, imported by me, or which may hereafter arrive, consigned to me, to sign my name to, seal and deliver for me and as my act and deed, any bond or bonds which may be required by the collector of the said district, for secur- ing the duties on any such goods, wares or merckandise : Also, to sign my name to, seal and deliver for me and as my act and deed, any bond or bonds, requisite for obtaining the debenture on any goods, wares or mer- chandise, when exported, and generally to transact all business at the said custom-house, in which I am or may hereafter be interested or concerned, as fully as I could if personally present. And I hereby declare, that all bonds signed and executed by my said attorney, shall be as obligatory on me as those signed by myself, and this power shall remain in full force until revoked by written notice given to said collector. In witness [etc., as in, Form 1164]. 1182. Special Custom-house Power. [As in Form 1164 to the *, continuing thus:] to receive and enter at the custom-house of the district of , any goods, wares or merchandise, imported by, or consigned to me, in the [here name vessel], to sign my name to, seal and deliver for me and as my act and deed, any bond or bonds which may be required by the collector of said district, for securing the duties on any such goods, wares or merchandise : Also, to sign my name to, seal and deliver for me and as my act and deed, any bond or bonds, requisite-for ob- taining the debenture on any such goods, wares or merchandise, when ex- ported for me, and generally to transact all business at the said custom- house, in reference to this importation, as fully as I could if personally present. And I hereby declare, that all such bonds signed and executed Sy my said attorney shall be as obligatory on me as those signed by myself. In witness [etc., as in Form 1164]. 614 ABBOTTS' FORMS. Powers of Attorney. 1183. Confirmation of Attorney's Act. Know all men by these presents, that whereas misapprehension nas arisen as to the power and authority of Y. Z., of , in my name and behalf, to execute a certain agreement between M. N., of the one part, and myself of the other part ; and whereas, said agreement has been signed and sealed by the said Y. Z., as my lawful attorney, and the said M. N., respectively. Now, these presents witness, that I, A. B., of , have examined and read said articles of agreement, and that I do hereby ratify and confirm the same, and do declare that the said Y. Z., who did, as my lawful attorney, in my name and behalf, sign and seal the same, did so sign and seal the same by my authority and with my consent ; and 1 do now fully ratify and confirm all his acts and doings, in and about the same, in as full, a manner as if 1, myself, had signed and sealed the same. In witness [etc., as in Form 1164], 1184. Power to Severed, to Act Together, or Either One Separately. Know all men by these presents, that I, A. B., of the city of , have made, constituted and appointed, and by these presents do make, constitute and appoint W. X. and Y. Z., jointly, and each of them severally, my true and lawful attorney and attorneys, for me and in my name, place and stead, and to my use [here set forth the subject of the power, and continue as in other cases, saying, attorneys or either of them, instead of. the word attorney, wherever it occurs afterwards]. 1185. Power to Several Jointly. Know all men by these presents, that I, A. B., of the city of , have made, constituted and appointed, and by these presents do make, constitute and appoint W. X. and Y. Z., jointly, my true and lawful attorneys for me [etc., as in other cases, saying, attorneys, instead of attorney, wherever after wards mentioned]. 1186. A Power of Attorney to Two Persons, But in Case of the Death, Absence or Refusal, of Both or Either, Then to Anothei, Alone, or With Either of Them that Will Act. Know all men by these- presents, that I, A. B., of the city of , have made, constituted and appointed, and by these presents do make, constitute and appoint W. X. and Y. Z., jointly, and each of them severally, my true and lawful attorney and attorneys ; and in case of the decease or absence of the said W. X. and Y. Z., or either of them, or the refusal of them or either of them, to act as my attorneys by virtue hereof, then I make P. V. alone, or together with him of them, the said "W. X. and Y. Z., who PKE-EHPTION. 615 Substitution of Attorney. Revocation of Power. shall be living and present, and will act as my attorney by virtue of these presents, jointly, or either of theifl severally, my true [etc., as in other cases, saying, attorneys or either of them, instead of attorney, wherever afterwards mentioned]. 1187. Substitution of Attorney. Know all men by these presents, that I, Y. Z., by virtue of the power and authority to me given, in and by the letter of attorney of A. B., of , which is hereunto annexed, do make, substitute and appoint M. K, of , as woll for me as the true and lawful attorney and sub- stitute of the said constituent named in the said letter of attorney, to do, execute and perform all and every thing requisite and necessary to be done, as fully, to all intents and purposes, as the said constituent or I could do if personally present ; hereby ratifying and confirming all that the said attor- ney and substitute hereby made shall do in the premises by virtue hereof and of the said letter of attorney. In witness [etc., as in Form 1164]. 1188. Revocation of Power of Attorney. Know all men by these presents, that whereas I, A. B., in and by my letter of attorney, bearing date the day of , one thousand eight hundred and , did make, constitute and appoint W. X., as by the aforesaid letter of attorney may more fully and at large appear. Now know ye, that I, the said A B., have revoked, countermanded, annulled and made void, and by these presents do revoke, countermand, annul and make void the s;iid letter of attorney above mentioned, and all power and authority thereby given, or intended to be given, to the said Y. Z. In witness [etc., as in Form 1164]. CHAPTER LXXni. PRE-EMPTION". The right of pre-emption to the public lands of the United States is granted jibd defined by the act of Congress of September 4, 1841, and the amendatory i,i supplementary acts of March 3, 1843, and May 8, 1846.(a) The individual claiming the benefits of the act must be — 1. A citizen of the United States, or have filed his declaration of intention to become a citizen. (a) 5 XX. S. Slat, at £., 455, 620 ; 9 lb., 9. "616 ABBOTTS' FORMS. Eight :f Pre-emption of Public Lands. 2. Either the head of a family or a widow, or a single man over the age of twenty-one years. » 3. An inhabitant of the tract sought to be entered, upon which, in person, he has made a settlement and erected a dwelling-house(5) since the 1st of June, 1840, and prior to the time when the land js applied for ; which land must, at the date of the settlement, have had the Indian title extinguished, and been surveyed by the United States. A person failing in any one of these requisites can have no claim by virtue of this act. A person bringing himself within each of the above requirements by proof satisfactory to the register and receiver of the land-district in which the lands may lie, taken pursuant to the rules hereinafter prescribed, will, after having taken the affidavit required by the act, be entitled to enter, by legal subdivi- sions, any Dumber of acres not exceeding one hundred and sixty, or a quarter- section, to include his residence ; and he may avail himself of the same at any time prior to the day of the commencement of the public sale including said tract, where the land has not yet been proclaimed. The act of 1841 provided that where the land was subject to private entry at the date of the settlement made since the 1st of June, 1840, and prior to the passage of this act, and the settler was desirous of securing the same under this act, he must give notice of his intention to purchase the same under its pro- visions within three months from the passage of the law. Where the land was subject to private entry at the date of the law, and a settlement shall thereafter be made upon such land, or where the land shall hereafter become subject to private entry, and after that period a settlement shall be made, which the settler is desirous of securing under this act, such notice of his intention must be given within thirty days after the date of such settlement. Such notice, in both [all] cases, must be a written one, describing the land settled upon, and declaring the intention of such person to claim the same under the provisions of this act. (See Forms 1189 and 1190, hereto annexed.) 1 Iu the first case, the proof, affidavit and payment must be made within twelve months after the passage of this act ; and in the second case, within twelve months after the date of such settlement. The tracts liable to entry under this act are some one of the following desig- nations : 1. A regular quarter-section, notwithstanding its quantity, may be a few acres more or less than one hundred and sixty ; or a quarter-section which, though fractional in quantity by the passage of a navigable stream through the same, is still bounded by regular sectional and quarter-sectional lines. 2. A fractional section, containing not over one hundred and sixty acres, or any tract being a detached or anomalous survey made pursuant to law, and not exceeding said quantity. 3. Two adjoining half-quarter-sections (in all cases to be separated by a north and south line, except on the north side of townships, where the surveys are so made as to throw the excess or deficiency on the north and west sides of the township) of the regular quarters mentioned in the first designation ; or two adjoining eighty-acre subdivisions of the irregular quarters lound on the north and west sides of townships, where more than two such subdivisions exist, or the excess may render them necessary, provided, in the latter case, the aggregate quantity does not exceed one hundred and sixty acres. 4. Two half-quarter or eighty-acre subdivisions of a fractional or broken section, adjoining each other, the aggregate quantity not exceeding one hun- dred and sixty acres. 5. A regular half-quarter and an adjoining fractional section, or an adjoining half-quarter subdivision of a fractional section, the aggregate quantity not ex- ceeding oue hundred and sixty acres. (i)Wl'jre a dwelling-house has been erect another house to entitle a claimant previous y built, it is not necessary to Vj pre-emption. PRE-EMPTION. 617 General Rules. 6. If the pre-emptor should not wish to enter the quantity of one hundred and sixty acres, he may enter a single half-quarter section (made by a north and south line), or an eighty-acre subdivision of a fractional section. 7. One or more adjoining forty-acre lots may be entered, the aggregate not exceeding one hundred and sixty acres. 8. A regular half-quarter, a half-quarter subdivision, or a fractional section, may each be taken, 'with one or more forty-acre subdivisions lying adjoining, the aggregate not exceeding one hundred and sixty acres. Only one person on a quarter-section is protected by this law, and that is the one who made the first settlement, provided he shall have conformed to the other provisions of the law. A person who has once availed himself of the provisions of this act can- not, at any future period, or at any other land-office, acquire another right under it. No person who is the proprietor of three hundred and twenty acres of land in any State or Territory of the United States is entitled to the benefits of this act. No person who shall quit or abandon his residence on his own land to reside on the public land in the same State or Territory is entitled to the benefits of this act. No pre-emption right exists by reason of a settlement on and inhabitancy of a tract, unless at the date of such settlement the Indian title thereto had been extinguished, and the land surveyed by the United States. The approval of the plat is the evidence of the legality of the survey ; hut in accordance with the spirit and intent of the law, and for the purpose of bringing the settler within its provisions, the land is to be construed as sur- veyed when the requisite lines are run on the field and the corners established by the deputy-surveyor. No assignments or transfers of pre-emption rights can he recognized. The patents must issue to the claimants, in whose names alone all entries must be made. The following lands are exempted from the operation of the act : 1. Lands included in any reservation by any treaty, law or proclamation of the President of the United States, and lands reserved for salines and for other purposes. 2. Lands reserved for the support of schools. 3. Lands acquired by either of the two last treaties with the Miami tribe of Indians in the State of Indiana, or which may be acquired of the Wyandot tribe of Indians in the State of Ohio, or other Indian reservation to which the title has been or may be extinguished by the United States at any time during the operation of this act. 4. Sections of land reserved to the United States, alternate to other sections granted to any of the States for the construction of any canal, railroad or other public improvement. 5. Sections or fractions of sections included within the limits of any incorpo- rated town. 6. Every portion of the public lands which has been selected at' a site for a city or town. 7. Every parcel or lot of land actually settled and occupied for the purposes of trade, and not agriculture. 8. All lands on which are situated any known salines or mines. Persons claiming the benefit of this act are required to file duplicate affida- vits, such as the law requires ; and to furnish proof by one or more disinter- ested witnesses, to the entire satisfaction of the register or receiver, of the facts necessary to establish the three requisites pointed out in the commencement of these instructions. The witnesses are to be first duly sworn or affirmed to speak the truth, and the whole truth, touching the subject of inquiry, by some officer competent to administer oaths and affirmations ; and, if not too inconvenient, by reason of distance of residence from the office of the register or receiver, or by reason of o'her good cause, must be examined by the register or receiver, and the teati- 618 ABBOTTS' FORMS. Pre-emption of Public Lands. mony reduced to writing in his presence, and signed by each witness, and cer tified by the officer administering the oath or affirmation, who must also join the register or receiver in certifying as to the respectability and credit of each witness. In case adverse claims be made to the same tract, each claimant must be no- tified of the time and place of taking testimony, and allowed the privilege of cross-examining the opposite witnesses, and of producing counter-proof, which should also be subject to cross-examination. The rules of proceeding in such cases are provided by instructions issued by the Government to the land-officers. The affidavit of the claimant in reference to the fact of settlement, etc., need not be required. It is in no case legal evidence on these points, and therefore should not form a part of the proof in reference thereto. The only affidavit required of the claimant is that prescribed by the 13th section of the act, which is to be taken before the register or receiver. No entry must be permitted until this affidavit is taken. Duplicates thereof must be signed by the claimant, and the fact of the oath being taken must be certified by the register or receiver administering it : one copy to be filed in his office, and the other to be transmitted to the GeneralsLand-office at Wash- ington. PAQB 1189. Declaratory statement for cases where, at the date of the law, the land claimed was subject to private entry 618 1190. The sume ; where the land was rendered subject to private entry since the date of the law , 618 1191. Affidavit required of pre-emption claimant 619 1189. Declaratory Statement for Cases Where, at the Date of the Law, the Land Claimed was Subject to Private Entry. I, A. B., of , being the head of a family [or, a widow, or, single man over the age of twenty-one years, as the case may be], and a citizen of the United States [or, having filed my declaration to become a citizen, as required by the naturalization laws, as the case may be]* have, since the first day of June, 1840 — to wit, on the day of , a. d. 18 , settled and improved the quarter-section No. , in township No. , of range No. , in the district of land subject to sale at the land-office at , and containing acres, which land was subject to private entry at the passage of the act of 4th September, 1841 ; * and I do hereby declare my intention to claim the said tract of land as a pre-emption right under the provisions of said act of 4th September, 1841. Given under my hand, this day of , 18 . Ti. presence of [Signature of claimant.] [Signature of witness.] 1190. The Same; Where the Land was Rendered Subject to Private Entry Since the Date of the' Law. [As in the preceding form, substituting the following in place of the words between the * *:] did, on the day of , a. d. 18 , settle and im- prove the quarter of section No. , in township No. , of range No. , in the district of lands subject to sale at the land-office at , and containing acres, which land has been rendered subject to private entry since the passage of the act of 4th of September, 1841, but prior to my settlement thereon. PRIVATE WAYS. 619 General Principles. 1191. Affidavit Required of Pre-emption Claimant. 1, A. B., claiming the right of pre-emption under the provisions of the act of Congress, entitled, " An Act to appropriate the proceeds of the sales of the public lands, and to grant pre-emption rights," approved September 4, 18-tl, to the quarter of section No. , of township No. , of range No. , subject to sale at , do solemnly swear [or, affirm] that I have never had the benefit of any right of pre-emption under this act; that I am not the owner of three hundred and twenty acres of land in any State or Territory of the United States, nor have I settled upon and im- proved said land to sell the same on speculation, but in good faith to ap- propriate it to my own exclusive use or benefit; and that I have not, directly or indirectly, made any agreement or contract, in any way or man- ner, with any person or persons whatsoever, by which the title which I may acquire from the Government of the United States should inure, in whole or in part, to the benefit of any person except myself. [Signature.] I, 0. D., register [or, receiver] of the land-office at , do hereby certify that the above affidavit was taken and subscribed before me, this day of , A..D. 18. [Signature and title.] CHAPTEE LXXIV. PRIVATE WATS. Private rights of way — that is, ways which are for the benefit of particu- lar persons, or the occupants of particular premises — may be created by imme- morial usage, as is common in England ; or by grant, as is the usual method in this country. The forms for such grants will be found in the chapter of Deeds. Where a private way is necessary, the parties may proceed under the statute to have it laid out, and the damages caused by so doing assessed upon the applicants. The proceedings in such cases are analogous to those in respect to laying out highways.(a) PAGE 1192. Application for a private road 620 1193. Notice to be given by the commissioners to the owner of land through which the road is to run 620 1194. Certificate of necessity 620 1195. Older by the commissioners laying out a road through improved land 620 (a) 1 Rev. Stat, of N. 7., 517. 620 ABBOTTS' FORMS. Proceedings to Lay Out Private Eoad. 1192. Application for a Private Eoad. [As in Form 874 to the*, continuing thus:] lay out a private road for my use, commencing [here insert a description of the road applied for}, passing through the lands of . [Signature.] [Date.] 1193. Notice to be Given by the Commissioners to the Owner of Land Through which the Road is to Run. To : Please take notice, that on the day of , 18 , at o'clock in the noon, at the house of in , a jury will be selected for the purpose of determining upon the necessity of the road asked for in the application of which a copy is annexed ; and to assess the damages by reason of opening the same. [Signatures of] Commissioners. [Date.] [Summons to the jurors, and their oath, may be framed with slight altera- tion from Form 896 and 881 respectively.] 1194. Certificate of Necessity. [As in Form 882, substituting the words, "private road" for "highway," wherever it occurs, and adding at the end:] for the use of said A. B. ; and we hereby assess the damages to be paid by him to [owner of land], at dollars. 1195. Order by the Commissioners Laying Out a Road Through Improved Land. [As in Form 875 to the *, continuing thus :] upon the application of A. B., a resident in said town, and liable to be assessed to work on the highways therein, for the laying' out of the private road hereafter described, and on the certificate of twelve reputable freeholders of said town, convened and duly sworn, after due notice to the owner of the lands through which such road is to pass, as required by the statute, certifying that such way is necessary, it is ohdeeed, determined and certified that a private way shall be, and the same hereby is laid out pursuant to said application for the use of said A.. B., whereof a survey has been made, and is as follows [designat- ing it as in Form 875]. Wiinebs their names, this day of , 18 . [Signatures of] Commissioners. PROMISSORY NOTES. 621 General Principles. CHAPTER LXXV. PROMISSORY NOTES. A Pbomissoet Note is a promise in writing to pay ,o a specified person, a certain sum of money, and money only, without condition or contingency. A note payable to one or the other of two persons designated in the alterna- tive, or payable out of a particular fund, or upon an uncertain event, or for pay- ment of an unliquidated amount, or for performance of any other act, has not the qualities of a promissory note. A negotiable note is one which is by its terms either payable to the order of any person, or to the bearer or holder of it, whoever he may be. A sealed note is not barred by the Statute of Limitations until the lapse of twenty years ; and an indorsement of a sealed note gives the holder nothing more than an equitable ownership, subject to all existing claims and defences by the maker. A note payable on demand is payable immediately, if the creditor choose to enforce it ; and whether he make demand or not, the Statute of ijmiiat.iousi begins to run against it from its date ; but he is not bound to make immediate demand in order to charge indorsers. Where a note is to be on interest, it should be so specified in the note by in sening the words " with interest," or " with use," else the note will not draw interest except from maturity. Where the rate of interest is not specified in the note, and it is made payable with interest, if not made payable at a par- ticular place, it draws the rate of interest fixed by law in the State in which it is made ; but if it is made in one State to be paid in another, it draws interest at the rate in the State where it is made payable. A note payable on demand, but not specifying interest, bears interest only from the time of demand. Indorsement. — If the payee or holder of a note writes Ms name upon the back of it, and transfers it to another person, he becomes an indorser, and the person thus taking the note is termed the indorsee. An indorsee may in turn become indorser, by transferring it in the same way. The person who, at any given time, has the right to the note, is termed the holder. An indorsement in blank is where the indorser writes his name only on the back of the note. An indorsement in full is where the person to whom the note is indorsed is named. Indorsement is an agreement to pay in default of payment by the maker, on the usual conditions of demand and notice. If the indorser wishes to transfer the note without making himself liable, he should write before his name the words " without recourse ;" or, if he indorses merely as agent to transfer the nominal title, add the word " agent" to his signature. PAGB 1196. Negotiable promissory note 621 1197. Non-negotiable note 622 1 198. Stock note 622 1196. Negotiable Promissory Note. $1,000. New Yoke, January 1, 186 6. Sixiy days after date [or, on the day of ,18 , or, on demand], I promise [or, wo promise — or, we jointly and severally promise] to pay to 622 ABBOTTS' FORMS. Protests. A. B. or order [or, to A. B. or bearer], one thousand dollars [with interest], for value received. ■ [Signature of maker.] 1197. Non-negotiable Note. $1,000. New Toek, January 1, 1861. Sixty days after date [or otherwise, as above], I promise to pay to A. B. one thousand dollars, for value received [with interest], [Signature of maker.] [Indorsements as in forms on page 160.] 1198. Stock Note: r A* in Form 1196, adding at the end:] having deposited with him, as col- lateral security, with authority to sell the same at public or private sale, on the non-performance of this promise and without notice [here designate the collaterals]. [Signature of maker.] CHAPTEE LXXVI. PEOTESTS. ■ A protest is a notarial act, done to furnish convenient evidence, in com- mercial affairs. A protest of a bill or note is made by the notary taking it to the place for presentment, and demanding acceptance or payment according to the case, and declaring and certifying default. He then gives notice to the indorsers (and other parties, if any, who may be chargeij upon the bill), either directly, or through the holder of the paper, who in turn will notify them. Marine protests are declarations of the master, etc., of a vessel, authenticated by a notary, setting forth a disaster and its causes. This is to be first made within twenty-four hours of arrival, and is entered by the notary in his rec- ords ; and a more extended statement may be afterwards made before him or another notary. [. Pkotests of bills and notes. PAOB 1199. Certificate of protest 623 ■ 1200. Certificate of service of notice 623 1201. Certificate of protest; when the maker, etc., ."*ann5t be found .... 624 1202. Notice of protest of note 624 1 203. Notice of protest of bill for nou-acceptance 624 1204. Notice of protest for non-payment 624 n. Mabine Pkotests. 1205. Notation of protest 625 1206. Protest extended before the same notary 625 1207. Protest extended before another notary 626 PROTESTS. 623 Bills and Notes. I. Protests of Bills and Notes. 1199. Certificate of Protest. [At the head of the paper attach the bill or note, with a wafer or gum.] United States op America, State of , County of On the day of , 18 ,(a) at the request of [here name holder], I, M. N, a notary public of the State of , duly commissioned and sworn, * did present^/) the original bill of exchange [or, promissory note] hereunto annexed, to Y. Z., the maker [or, the drawee — or, the acceptor](c), at [liere state the place of demand](d), and demanded payment [or, acceptance], who refused to pay [br, accept] the same. Whereupon * I, the said notary, at the request aforesaid, did protest, and by these presents do publicly am. solemnly protest, as well against the drawer and indorsers of the said bil [or, note] as against all others whom it doth or may concern, for exchange, re-exehange and all costs, damages and interest already incurred, and to be hereafter incurred, for want of payment [or, acceptance] of the same. Thus dose axd protested in the city of aforesaid, in [Official the presence of John Doe and Richard Roe, witnesses. seal.] In testimonium veritatis. [Signature of] Notary Public. 1200. Certificate of Service of Notice.{e) United States of Amebioa, • State of New York, City and County of New York I, M. X., a notary public of the State of New York, duly commissioned and sworn, do hereby certify, that on the day of , 18 , due notice of the protest of the before-mentioned bill [or, note] was served upon C. D. personally, and upon E: P. by putiing the same into the post-office directed to him at , and upon G. H. by putting the same into the post-office directed to him at , each of the said places being the reputed residence (a) The hour of the presentment need of the firm, it should name the one, and not be stated. It will be presumed that describe him as such— e.g., thus, " to Y. it was at a seasonable hour. Cayuga Z., one of the firm of Y. Z. & Co., the Comity Bank «. Hunt, 2 Mill, 635; De makers." Otsego County Bank v. War- Wolfs. Murray, 2 Sand/., 166. ren, 18 Barb., 290. (6) The certificate must show that the ., has this day been protested for non-accept- ance. [Signature of] Notary Public. [Date.] 1204. Notice of Protest for Nonpayment. To Mr. A. B. : Please take notice, that your bill for dollars, at days from sight, dated , drawn on and accepted by 0. D., has this day been protested (/) This form is sustained by Hodges which it refers, and will, in addition, im- ■11. Shuler, 22 N. Y., 114. port that the bill has been dishonored; No precise form of words, and no par- and it is" usual also to inform tHe party ticular manner, is necessary to be used in notified that he is looked to for payment, giving the drawers notice of dishonor ; {g) This form is sustained by Cowper- but the note or bill should be described thwaite v. Sheffield, 1 Sand/., 416 ; Cayuga in the notice with such distinctness and County Bank v. Warden, 1 N. Y. (Comst.), certainty as will enable the party notified 413 ; Cook a. Litchfield, 9 N. Y. (5 Sela,.), to ascertain from it the particular bill to 279. PROTESTS. 625 Marine Protests. for non-payment [or, that the bill of A. B. for dollars, at days from sight, dated , drawn on and accepted by C. D., and indorsed by you, or by you and by E. F., has this day been protested for non-payment]. [Date.] [Signature of] Notary Public. II. Makine Protests. 1205. Notation of Protest. State of , 1 County of . ) By this public instrument be it known, unto all whom it may concern, that on this day of , 18 , before me, A. B., a public notary in and for the State of , by letters patent under the great seal of the State, duly commissioned and sworn, and dwelling in the city of , personally came 0. T> , master of the ship called the Mary, of , of the burden of tons or thereabouts, now lying in the port of , and said that he sailed in and with the said vessel on the day of last, from the port of , with a cargo of bound to the port of Having, in the due prosecution of the said voyage [here state briefly any ac- cident that may have occurred, or the cause of putting into port], he now enters with me, the said notary, in due form of law, his protest, to serve as occasion may require, reserving to himself the right to extend the same in time and place convenient. In testimony whebeof, the said master has hereunto sub- [Seal.] scribed his name, and I, the said notary, have to these pres- ents set my hand and seal of office, the day of the date first above written. [Signature of] Master. [Signature of] Notary Public. 1206. Protest: Extended Before the Same Notary. By this public instrument of protest, be it known to all to whom these presents shall come, that on this day of , in the year of our Lord one thousand eight hundred and , before me, A. B., a public notary in and for the State of , by letters patent under the great seal of the State, duly commissioned and sworn, personally appeared 0. D., master, E. F., first mate [etc., etc.] of the late brig Mary, of , of the burden of tons, or thereabouts, who, being by me duly sworn, severally declared on oath (protest having been duly noted before me on arrival) that * [here set forth the facts in detaiV\. And that any loss, damage or injury, which has arisen or accrued, or that may arise or be sustained in any manner whatever, is solely owing to the accidents and difficulties herein set forth and declared, and not to any negli- gence, want of skill, vigilance or exertion on the part of the deponents, or any of the officers or men of the said ship. "Wherefore, the said A. B., master and commander as aforesaid, hath re quested me to protest, and I, the said notary, at such, his request, have pro- 40 626 ABBOTTS' FORMS. Marine Protests. tested, and by these protests do publicly and solemnly protest against all and every person and persons whom it doth, shall or may concern, and against all and singular, the accidents, casualties and eireumstances already set forth in the foregoing declaration, on oath, for all manner of losses, costs, damages, charges, expenses and injuries whatsoever, which the said ship and her cargo on board, and the freight by her earned, or to be earned, or either of them, or any part thereof, have already sustained, or may here- after sustain, by reason or means of the foregoing premises. Tiros done and peotested, in the city of , this day of , in the year of our Lord one thousand eight hundred [Seal] and In testimony wheekof, I have hereunto set my hand and affixed my notarial seal. {Signature of] Notary Public. [Signatures of deponents^] County of , ss. I, A. B., a public notary, in and for said county, duly commissioned and sworn, dwelling in said , do certify the foregoing to be a true and exact copy of an original protest on record in my office. In testimony whereof, I hereunto set my hand and notarial [Seal.] seal, this day of , one thousand eight hundred and . [Signature of} Notary Public. 1207. Protest : Extended Before Another Notary. By this public instrument of protest, be it known to all whom it may concern, that on the day of , in the year of our Lord one thou- sand eight hundred and , before M. N., a notary public, of , personally appeared 0. D., master of the ship Mary, of , of the burden of about tons, and noted with him in due time, and in due form of law his protest, for the uses and purposes hereinafter mentibned. And now, on this day of , in the year , before me, A. B., a notary public, in and for the county of , in the State of , duly commissioned and sworn, and residing in the city of , and State aforesaid, comes the said 0. D., and requires me to extend his said protest, and together with him come and appear [naming them] of said vessel, all of whom being by me duly sworn, severally declared on oath that [continuing as in preceding form, from the*]. RECEIPTS. 627 Definition. Effect of. CHAPTEE LXXYII RECEIPTS. A receipt is a written acknowledgment of a delivery, either of money or of other property. It is executed by the party who receives the thing delivered, and operates against him as his admission of the fact, which he will not be allowed, in a court of justice, to contradict without showing some adequate reason. Receipts may occur as clauses inserted in the frame of instrument having an independent character ; as in a deed, in a bill of lading. In this chapter is only considered the form of drawing a receipt when it is to be given separately. A receipt which contains nothing but a simple acknowledgment that a pay- ment of money or delivery of property has been made, without any special clauses, and without a seal, is not treated in law as of very binding or conclusive effect. It is merely presumptive evidence of the fact admitted. It is in general open to explanation. The rule which applies to written agree- ments, that they cannot be varied by parol evidence, does not apply to such a receipt ; but the party may show the circumstances under which it was given, and may avoid its effect not only by showing that he was led to give it by fraud, or by some serious mistake, but generally by any clear proof that the money receipted for was not actually paid.(a) A more conclusive character is impressed upon a receipt, by affixing a seal to it. It will then be deemed to cone] ude the party executing it.(&) Clauses inserted in a receipt which import contract as to the application of the money, or the effect to be attributed to the payment, may render it con- clusive, drawing it within the rule which, forbids the contradiction of written contracts.(c) This is particularly true, when the amount of a debt being honestly contested, a receipt is given for a less sum " in full" of the whole.(d) (a) Thompson *. Faussat, Pel. C. G, Ala., N. S., 59; Thomas*. Austin, i Barb., 182 ; Dobbin „. Perry, 1 Sick., 32 ; Fitz- 265; Tobey v. Barber, 5 Johns., 68; gibbon v. Kinney, 3 Barring, 317; State Brooks v. White, 2 Mete., 283; Putnam v. Robinson, 2 Harring, 5 ; Southwick v. v. Lewis, 8 Johns., 389 ; Van Rensselaer Hayden, 7 Gov)., 834 ; MeCreas. Purmort, v. Morris, 1 Faige, 13; Union Bunk v. 16 Wend., 460; Rollins v. Dyer, 16 Me., Sollee, 2 Strobh., 890. 475; Humphries v. McOraw, 5 Pet., 61; (61 Rountree v. Jacob, 2 Taunt., 141 ; Stackpoleu. Arnold, 11 Mass., 27; Johnson Spiers v. Clay, 2 Hawks., 22. «. Johnson, /*., 863 ; Weed v. Snow, 3 (c) Hillyer v. Vaughan, J. J. Marsh., McLean, 265; Byrne v. Schwing, 6 J3. 583; Eggleston*. Knickerbocker, 6 Marb., Monr., 199 ; Murray v. Governeur, 2 58 ; Paige v. Perno, 10 Vt., 491 ; Reid v. Johns. Gas., 438 ; Farrar v. HutchinBon, Reid, 2 Dev. L. R., 247. 1 Per. & D., 487; Skaife ». Jackson, 8 (d) Ennie v. Gilbert, Wright, 464, Barn.<£G,i2l; House v. Low, 2 Johns:, Bailey v. Day, 26 Me., 88; Palmerston 378; Johnsou «. Weed, 9 Johns., 810, v. Huxton, 4 Den., 166; Thompson v. Pettns v. Roberts, 6 Ala., 811 ; Giddings Faussat, Pet. G. G, 182; Bri9tow v. East- v. Mnnson, 4 Vt., 308 ; Beebee v. Moore, man, 1 Msp., 178 ; Alner v. George, 1 » Mclean, 387; Hogan v. Reynolds, 8 Carwpb., 892; Eve b. Mosely. 2 Strobh., 628 ABBOTTS' FORMS. Analysis. Whenever an innocent person has acted upon faith reposed in a receipt, in such a way that he would be injured by allowing it to be falsified, the rule which permits it to be explained away by parol evidence does not apply as against him. I. General receipts. page 1208. General receipt for money 628 1 2' '9 For chuttels 628 1210. For papers , 628 1211. Receipt for money paid by a third person 629 1212. Eeeeipt for money on behalf of a third person 629 1213. Form for indorsing a receipt on a written instrument G29 II. Receipts fob particular objects. 1214. Receipt on account generally 629 1215. Receipt, for a quarter's rent 629 1216. For interest on a bond 629 1217. For part of the principal of a bond '. 629 1218. For payment for professional services 629 1219. For money to be paid over 630 1220. For money to be disbursed ' 630 122!. For money to be repaid 630 1222. For papers to be safely kept and restored 630 III. Receipts in full. 1223. In full of a particular demand 630 1224. In full of all demands 631 1208. General Receipt for Money, $ . Received from T. Z. the sum of dollars. [Date.] A. B, 1209. For Chattels. Received from Y. Z. one cart, one wagon, one plough, one harrow, une black horse live years old, known as Jack, and a yoke of oxen, heretofore kept by said Y. Z., on his farm in A. B. [Date.] 1210. For Papers. I hereby acknowledge that I have received from Y. Z. the several notes [or, deeds, or, contracts], and other papers, , which are enumerated and described in the schedule annexed. A. B. [Date.] [Annex list, identifying papers oy dates, parties' names, etc.] 20S; Holbrook v. Blodget, 5 Vt., 520; 219; Lessions -o. Gilbert, Brayt., 75; Cunningham v. Batcbelder, 32 Me., 816 ; Benson v. Bennet, 1 Campb., 394, n. Thomas ». Austin, 4 Earb., 265 ; Patter- Snyder v. Findley, Goxe, 48 ; Middleditch Bon v. Atcheson, 1 Edw. Oh., 101, and 2 i>. Sharland, 5 Ves. jr., 87 ; McDowell v lb., 427 ; Derrickson v. Morris, 2 Earring, Lenaitre, 2 McOord, 820; Lawrence v. 392; Trislerti.'WUMamson, lHar. dbMcH., Schuylkill Nav. Co., 4 Wash., 562. RECEIPTS. 629 Keeeipts for Particular Objects. 1211. Receipt for Money Paid by a Third Person, % . Received from Y. Z., by the hand of M. N., , the sum of d)llars. A. B. [Date.] 1212. Receipt/or Money on Behalf of a Third Person. % . Received from Y. Z. the sum of dollars. A. B., per M. N. 1218. Form for Indorsing a Receipt on a Written Instrument. $ . Received from Y. Z. the sum of dollars, being [a part of] the amount due upon the written bond [or, contract, or, policy of insurance, etc.] A. B. [Date.] 1214. Receipt on Account Generally. % . Received from Y. Z. the sum of dollars, on account. [Date.] A. B. 1215. Receipt for a Quarter's Rent.ie) % . Received of Y. Z. the sum of dollars, being one quarter's rent, due this day, for my dwelling-house and estate, No. street, now occupied by said Y. Z. A. B. [Date.] 1216. For Interest on a Bond. $ . Received of Y. Z. the sum of dollars, being the annual interest due on his bond, dated the day of , 18 , given to me [or, to M. N.], and conditioned for the payment of the sum of two thousand dollars, in three years from date, with annual interest [which payment herein acknowledged, I promise to indorse on said bond]. A. B. [Date.] 1217. For Part of the Principal of a Bond. $ . Received of Y. Z. the sum of dollars, to apply on his bond, dated the day of , 18 , given to me [or, to M. N.], being the same payment which I have this day indorsed on said bond. A. B. [Date.] 1218. For Payment for Professional Services. % . Received from Y. Z. the sum of dollars, for professional services rendered by me in [state the nature of the services], A. B. [Date.] (f) A receipt for a sum of money ex- tract, and not liable to be varied by pressed to be " to secure board, and to be parol evidence of previous arrangements, npplied on the first week's board; to be Townsend v. Fisher, 2 EUt., 47. forfeited if not taken," — Held, to be a con- 630 ABBOTTS' FORMS. Receipts in Full. 1219. For Money to be Paid Over. % . Received from Y. Z. the sum of dollars, to be paid to the Bank of , on their surrendering a note which they hold, made by said Y. Z., dated the day of , 18 , for dollars, payable days after date. A. B. 1220. For Money to he Disbursed. % . Received from Y. Z. the sum of dollars, to be expended in necessary travelling expenses and disbursements in going to Washington for him to obtain letters patent [or otherwise state the nature of the dis- bursements intended.} A. B. [Date.] *. 1221. For Money to be Repaid, % . Received from Y. Z., of , the sura of dollars, which I promise to repay to him on demand [or, in days, or, months ; or, on the day of , 18 ]. ' A. B. [Date.] 1222. For Papers to be Safely Kept and Restored. I hereby acknowledge that the several deeds and writings contained in the schedule annexed were this day delivered to me by Y. Z., of, etc., and I hereby undertake to keep them with the same degree of care as I keep my own deeds, writings and papers, or other valuable effects, vud to restore them to the said Y. Z., his heirs or assigns, on his or their, etc. [state the condition, or say, upon request], uninjured and nndefaced, inevitable casualty excepted. A. B. [Date.] [Annex Schedule, as in Form 1210.] 1223. InFull(f) of a Particular Demand. $ . Received from Y. Z. the sum of dollars, in full of all de- mands for printing up to date [or 1 , to the day of ,18 ]. [Date.] A. B. (/) Receipt "in full," — Held, open to refused the wages necessary for his sup- proof that no money was paid, but only a port unless he will sign a receipt of a part- check which was dishonored. Houston payment in full, — is not concluded by it, v. Shindler, 11 Barb., 86. although it is expressed to be in full. A receipt, although in full of all de- Thomas v. McDaniel, 14 Johns., 185; mands, and under seal, is no bar to a Bub- Eourk v. Story, 4 K D. Smith, 524. sequent action, if it was given without The words " in full," occurring in a re- any consideration. If given upon an ac- ceipt at the end of a specification of sev- feual part-payment, it would show an ac- eral demands, are not necessarily confined cord and satisfaction. Riley «. White, 6 to the demand last mentioned, but may N. 7. Leg. Obs., 272. extend to the others Bogart r. Van Vel- One who gives a receipt under compul- sor, 4 Edm., 718. sion, — e. g., where a person employed is RECOGNIZANCES. 631 General Principles. 1224. In Full of All Demands. $ . Received of Y. Z. the sum of dollars, in full of all de- mands against him. A. B. CHAPTER LXXYIIT. RECOGNIZANCES. A recognizance is an obligation of record, entered into before a court or officer duly authorized for that purpose, with a condition to do some act re- quired by law, which is therein specified. In the absence of any statute regulation, the manner of taking a recognizance is that the magistrate repeats to the recognizors the obligation into which they are to enter, and the condition of it, at large, and asks them if they are content. He makes a short memorandum of it in his minutes, which it is not necessary that they should sign. From this short minute, the magistrate may afterwards draw up the recognizance in full form, and certify it to the court ; or, as is the general practice, certify either the original, or a copy, of the short memorandum. By the statutes of New York, it is provided that recognizances authorized to he taken in any criminal proceeding in open court by any court of record, shall be entered into the minutes, and the substance thereof read to the person recognized. All other recognizances in any criminal proceeding, or proceeding under the laws respecting internal police, shall be in writing and subscribed by the parties to be bound thereby.(a) A written recognizance should express that the obligors are bound to the State or commonwealth in a specified sum, and should state the condition It is usual also to state the offence charged, and the circumstances under which the recognizance is taken, so as to show the jurisdiction of the officer.(6) 1225. Short Form of Memorandum of Recognizance.(c) A. B., bound in dollars. C. D., bound in dollars. On condition that A. B. be and appear at the next court in , to answer. [Date.] 1226. Formal Recognizance. State of , j County of . J Be it remembered, that I, A. B., of the town of , in said county, do hereby acknowledge myself to be indebted to the People of the State of , in the sum of dollars, to be well and truly paid, if default shall be made in the condition following : (a) 2 Rev. Stat., 746, § 24. Barb., 511 ; Gildersleeve v. People, 10 /*., (i) It has been held, however, that this 85 ; S. C, 9 If. Y. Leg. Oba., 18. U> not essential to its validity. People v. («) This form is sustained by Cou-mon- Kane, 4 Sen., 530; People ». Willis, 5 wealth v. Emery, 2 Mnn., 43. 632 ABBOTTS' FORMS. Becognizances. Releases. Whereas the said A. B. [here briefly state the circumstances authorizing the exaction of the recognizance] : Now, thebefoee, the condition of this recognizance is such, that if the said A. B. shall [here state what is to be performed by him], then this recognizance shall be void ; else, to remain of force. Subscribed and acknowledged 1 [Signature and seal.] [in open court] this day f of , 18 , before me. ) {Signature and title of magistrate or clerk of court.] CHAPTER LXXIX. RELEASES. The distinction between a release and a receipt is, that the first, by its own operation, extinguishes a pre-existing right, and therefore cannot be contradicted or explained by parol ; the second, has never the effect of destroying a subsisting right, but is merely evidence of a fact — the fact of payment — and therefore, like all other facts given in evidence, may be refuted or explained. A release by one of two or more creditors or claimants, wbomust have joined as plaintiffs had an action been brought, is valid and binding on the others, unless it shows that the consideration was not for their benefit. So a release given to one of several joint debtors who must have been joined as defendants if an action had been brought, is valid, and has the effect of discharging all the debtors, if it be under seal. But it is competent for the parties to prevent this effect by expressing in the release that it is not to discharge the other joint debtors.( [or, if executed by a corporation, say : In witness whereof, the said [naming corporation] have caused their cor- porate seal to be hereunto affixed, this day Of , 18 ]. In presence of [Signature, etc.] [Signature of witness.] [Add acknowledgment or proof by subscribing witness, as in case of a Peed.] 1245. Satisfaction of Mechanic's Lien. I, A. B., do hereby certify, that a certain mechanic's lien, filed in the office of the clerk of the county of , the day of , one thousand eight hundred and , at o'clock in the noon, in favor of A. B., claimant, against the building and lot situate on the side of street, in -, between and streets, and known as No. in said street, M. N. owner and O. P. contractor, is discharged. In presence of [Signature of lienor.] [Signature of witness!] [Add ackncwledgment or proof by subscribing witness, as in case of a Deed.] CHAPTBE LXXXII. SCHOOLS. The Common-school Systems adopted in various States differ so much, and the features and practice are generally so fully set forth in the statute regula- tions, that a full statement of the law should be sought in the statutes and in the instructions, if any issued, by the state officers having supervision of the public instruction. The following forms have reference to tlte most common needs of professional or clerical use under the statutes of New York. PASS 1246. Order altering school districts 642 1247. Order erecting a new district 642 1 248. Consent of trustees indorsed on order 642 1249. Notice of first meeting in a new school district 642 1250. Ordinary notice of district school meeting 642 1251. Tax-list for collection of moneys raised for building a school-house 643 1252. Warrant to be attached to tax-list 643 41 642 ABBOTTS' FORMS. School Laws. PAGE 1253. Rate-bills for sums to be paid by the inhabitants for instruction or for fuel. 643 1254. Renewal of warrant . 648 1255. Collectors' notice to pay taxes 644 1256. Return of the collector 644 1 257. Notice of levy and sale by the collector 644 1246. Order Altering School Districts. It is hereby ordered by the school commissioner of the Assembly District of the county of [and the supervisor and town clerk of the town of ], that * school district No. in said town be enlarged by adding thereto the following described farms and dwellings to be taken from district No. in said town [description]. [Bate.] [Signatures and titles.] 1247. Order Erecting a New District. [As in the preceding form to the*, and continue:] a new school district to be called district No. , be erected in the town of , said district to embrace the following described dwellings, farms and territory which are taken from districts Nos. and ; said territory so set apart for said new district is described as follows [description]. [Date.] [Signatures and titles.] 1248. Consent of Trustees Indorsed on Order. "We hereby consent to the within alteration of school districts. [Date.] [Signatures of] Trustees. 1249. Notice of First Meeting in a New School District. Notice is hereby given, to the inhabitants, qualified to vote at district school meetings of the .district, described in the annexed order, that the first district meeting of said district will be held at the house of , in said district, on the day of ,18 , at o'clock in the noon, for the purpose of electing district school officers, and determining upon the site for the school-house, and the amount of tax to be raised to build the house, and any other business necessary to be done at said meeting. [Date.] [Signature of] School Commissioner. 1250. Ordinary Notice of District School Meeting. Notice is hereby given, that a specia. [or, ar annual, or, adjourned] meet- ing of the freeholders and inhabitants of thi school district, authorized by law to vote therein, will be held at , on , at o'clock in the noon, for [the election of officers] and other necessary business. [Date.] [Signature of clerk.] SCHOOLS. 643 Collection of Taxes. 1251. Tax-list for Collection of Moneys Mouse. Raised for Building a School List of taxes, payable by the following persons, taxable inhabitants o district No. , in the town of , made by the trustees of said dis- trict, on the day of , 18 , in conformity to law. VALUATION OF BEAL ESTATE. PERSONAL ESTATE. AMOUNT OF TAXES. [Here insert them, and add signature of trustees.] 1252. Warrant to he Attached to Tax-list. , in the town of , in the To the collector of School District No. county of , greeting: In the name of the People of the State of New York, you are hereby commanded and required to collect, from each of the inhabitants of said dis- trict, in the annexed tax-list named, the sum of money set opposite to his name in said list, and within thirty days after receiving this warrant, to pay the amount thereof collected by you (retaining your fees for collection), into the hands of the trustees of said district, or some or one of them, and take his or their receipt therefor ; and in case any person named in such list shall not pay the sum therein set opposite to his name, on demand, you are hereby commanded to levy the same by distress and sale of the goods and chattels of the said delinquent, in the same manner as on warrants issued by the board of supervisors to the collectors of taxes. Given under our hands and seals, this day of , 18 . [Signatures, titles and seals.] 1253. Bate-tills for Sums to be Paid by the Inhabitants for Instruction or for Fuel. Rate-bill of the persons liable for teachers' wages [or, fuel], in district No. , in the town of , for the school-term ending the day of , 18 . NO. OF DATS SENT. AMOUNT OF SCHOOL BILL [or, BILL FOB FUEL], INCLUDING COLLECTOR'S FEES. [Mere insert them, and add signatures.] 1254, Renewal of Warrant. The undersigned, trustees :f school district No. , in the town of hereby renew the within [or, foregoing] warrant. [Date^ [Signatures.] o44 ABBOTTS' FOKMS. Collection of School Taxes. Seals. 1255. Collectors Notice to Pay Taxes. The undersigned has received from the trustees of school district No. , town of , the warrant and tax-list to collect the sums therein specified from the persons therein named as liable to pay the same in said district; and all persons who pay their tax to me within two weeks from this date will be charged but one per cent, fees, and five per cent, will be collected from all persons who do not pay their taxes until after the expiration of said two weeks. [Date]. [Signature of] Collector. 1256. Return of the Collector. I hereby certify and return, that, by virtue of the foregoing warrant, I have collected the sum of dollars, being the amount of the several sums tliereon marked by me as paid; and that the following persons have not paid the sums in which they are taxed, nor have I been able to find any property of them upon which I could levy [names.] [Date.] [Signature of] Collector. 1257. Notice of Levy and Sale by the Collector. By virtue of a warrant and tax -list issued to me by the trustees of school district No. of the town of , I have levied upon and taken the following described goods of M. N., which I shall sell at public auction at the house of in said town, on the day of , 18 , at o'clock in the noon [description of goods]. [Date.] [Signature of] Collector. OHAPTEE LXXXIII. SEALS. According to the more strict authorities, a seal is an impression upon wax, wafer or some other tenacious substance affixed to the paper or parchment on which an instrument is written. In many of the Southern and Western States, as well as in Pennsylvania and New Jersey, this kind of seal has been dispensed with, the courts holding a scroll or device, made by .the pen or printed, to be a sufficient seal, if intended as such. In some of the States, the use of private seals has been wholly dispensed with by statute. In others, as in New York, the statutes authorize corporate, official and judicial seals to be made by an impression upon the paper directly, without the use of wax or wafer. The rules which prevail in the several States, in respect to private seals, are SEARCHES. 645 General Rules. for greater convenience, stated in the chapter of Deeds, where the law will be found, in the alphabetic order of the names of the States. The effects of affixing a seal upon a contract are, in general — first, that it im- ports or implies a consideration sufficient in itself to support the contract ; and second, that lapse of time will not bar a right of action on the contract until twenty years have passed, instead of barring it in six years or such other briefer period as the law may prescribe for unsealed contracts. CHAPTEE LXXXIV. SEARCHES. In examining the title to real property, the conveyancer may look through the records himself, or may, by a requisition addressed to the recording officer, procure him to search for and certify the conveyances and encumbrances. The requisition and certificate is termed a search. In drawing it or filling the blanks (which can usually be procured at the law stationer's), particular regard should be had to the time during which the person searched against has owned the premises, so as to cover fully his period of title in seeking for conveyances, etc., and to the times fixed by the statutes regulating other liens, such as judgments, which may affect the property though recovered against him before he became the owner. The clerk who searches for judgments will return those that have been satisfied, as well as those which have not ; and satisfied judgments should be inquired into, for they may have been satisfied by a sheriff's sale of the very property in question. PASS 1258. Search for deeds, etc 645 1259. County clerk's seareli 646 1260. Search for judgments in United States courts 646 1261. Loan commission search 647 1262. Tax search 647 1258. Search for Deeds, etc. Aix that OEETAnsr [etc., inserting a full description of the land; and, if a city lot, it will be convenient to give a diagram of the Mock, showing the position of the lot]. The register of the city and county of New York will please search for mortgages, conveyances, leases and all other encumbrances of record in his office, of, upon or affecting the premises above described, or any part there- of, by the persons whose names are hereto subjoined, and for the periods set opposite their respective names, and certify the result below, for [Date.] [Signature of conveyancer.] 646 ABBOTTS' FOKMS. Searches. For transcripts of [Sere insert names and dates — e. g., thus] : Against A. B., from the day of , 18 , to the day of . 18 . " C. D., from the day of ,18 , to date of your return. [The officer will add his return, thus :] A. B. and wife to 0. D. Deed dated the day of , 18 , and re- corded the day of , in Lib. of Deeds, p. Nothing else found. [Bate.] [Signature of officer.] 1259. County Clerk's Search. The clerk of the city and county of New York will please search his office for judgments and decrees, and also ' Decrees in chancery or equity. Judgments from the late and present Supreme Court. Judgments from the Superior Court. Judgments from the Court of Common Pleas. Judgments from other courts. Also transcripts from the marine and justice's courts against the following: [Here insert names and periods.] • Also for surrogate's decrees, and forfeited recognizances, against the same persons for the same periods. Also, for mechanic's liens affecting property side of street, near , since , against A. B. Also, for unsafe building-notices affecting same property since the passage of the act, against A. B. Also, for bonds of collectors, and their sureties, from April, 1838, to April, 1844, against A. B. • Also, for notices of lispendens. " certificate of sheriff's and marshal's sales. " insolvent assignment. " general assignment. " foreclosures by advertisement. " appointment of receivers, and of trustees of absent debtors. Against the persons following, for the following periods respectively [namet and periods]. [Signature of conveyancer.] 1260. Search for Judgments in United States Courts. To the clerk of the Circuit [or, District] Court : Please search for judgments in the Circuit [or, District] Court of the United States for the district of New York, against the persons whose names are hereto subjoined, and for the periods set opposite their respec- tive names, and certify the result below, for [Date.] [Signature of conveyancer.] [Add names and periods.] SERVICE (and Pbiof ^f). 647 Searches. Certificate of Service. 1261. Loan Commission Search. The commissioners for loaning moneys of the United States in the county of will please search in their office for mortgages upon premises [here briefly designate them], made by [names]. [Date.] [Signature of conveyancer.] 1262. Tax Search. To M. K : Please search for taxes, assessments, water-rents, and sales for the same or either of them, of, upon or affecting the premises laid down on the fol- lowing diagram, or any part thereof, and certify the result below, for [Date.] [Signature of conveyancer.] [Diagram showing Ideation and dimensions of premises.] CHAPTEK LXXXV. SERVICE (AND PROOF OF). Where the law requires written notice to be given to a person, it usually is to be understood to intend a delivery of the notice to Mm personally. This is termed personal service, in contradistinction to service by leaving the notice at the person's residence in the hands of another, or by mailing or by publication. Personal service is in general to be required, if the obiect of the notice is to subject the party to the jurisdiction of a court or magistrate, or if he is to be punished for not regarding the notice, or if it is a condition precedent to some act on the part of others prejudicial to the party to be notrfied.(a) Where a statute giving a special or summary mode of proceeding specifies the manner of service, its directions should be strictly complied with. Forms of proof in such instances will be seen in the chapter on Foreclosure and Insolvency. 1263. Sheriff* certificate of service 647 1264. Affidavit of personal service 648 1263. Sheriff's Certificate of Service. [If in an action, insert here its title.] County of I hereby certify that on the day of , 18 , at ,1 served on T. Z. [one of the defendants above named] the summons in this action [or, the annexed notice], by delivering a copy thereof to him per- sonally, and leaving the same with him. [Signature of] Sheriff. [Date.] (a) See the chapter t n notices. 648 ABBOTTS' FORMS. Affidavit cf Service. Shipping Articles. 1264. Affidavit of Personal Service. [If in an action, insert here its titled] County of M. N., being duly sworn, says that he is [a clerk in the office of plain- tiff's attorney herein] ; and that on the day of , 18 , he served on Y. Z. [one of the defendants above named] at [his place of business] No. , street, in the city of New York, the within summons [or, notice], by delivering a copy thereof to him personally, and leaving the same with him [or, by tendering a copy thereof to him personally, and on his refusal to receive the same, deponent laid them down upon his desk, saying to him: " I hereby deliver these to you."] Deponent further says that he knows the person so served to be the person mentioned and de- scribed in the summons as defendant therein [or, the person to whom said notice is addressed]. [Signature.] Swobn [etc., as in Form 1115]. CHAPTBE LXXXVI. SHIPPING ARTICLES. The Statutes of the United States(a) provide that every master or com- mander of any ship or vessel bound from a port in the United States to any foreign port, or of any ship or vessel of the burden of fifty tons or upwards, bound from a port in one State to a port in any other than an adjoining State, shall, before he proceed on such voyage, make an agreement in writing or in print, with every seaman or mariner on board such ship or vessel (except such as shall be apprentice or servant to himself or owners), declaring the voyage or voyages, term or terms of time, for which such seaman or mariner shall be shipped. Carrying out a seaman without his first signing such articles subjects the master to a penalty, and entitles the seaman, for his service, to the highest wages given at the port, within three months preceding the time of shipment. At the foot of every such contract there must be a memorandum in writing of the day and hour on which the seaman or mariner, who shall so ship and subscribe, shall render themselves on board, to begin the voyage agreed upon. Nothing repugnant to the foregoing requirements can be inserted ; but addi- tional provisions not inconsistent with them may be inserted.(ft) The courts, however, are careful, in protection of seamen, to inquire into harsh or unusual stipulations, and they will not enforce, against seamen, stipulations which operate to their disadvantage, and are inserted in the articles in addition to the stipulations recognized by this act, unless it appear, from evidence outside the articles, that the seamen fully understood the stipulations and received an adequate consideration therefor.(c) (a) 1 V. S. Stat, at L., 131. (e) Brown v. Lull, 2 Summ., 444 ; Har- (i) Webb v. Duckingfield, 18 Johns., den v. Gordon, 2 Mas., 541 ; The Sarah B90. Jane, 1 Shtckf. & H., 401. SHIPPING ARTICLES. 649 General Form. 1265. Form of Shipping Articles. United States of America. It is agreed between the master and seamen, or mariners, of the [name of vessel], of , whereof A. B. is at present master, or whoever shall go for master, now bound from the port of [naming shipping port], to [here designate the voyage definitely].^,) That, in consideration of the monthly or other wages against each respective seaman or mariner's name hereunder set, they severally shall and will perform the above-mentioned voyage: And the said master doth hereby agree with and hire the said seamen or mariners for the said voyages, at such monthly wages or prices, to be paid pursuant to this agree- ment, and the laws of the Congress of the United States of America ; and they, the said seamen or mariners, do severally hereby promise and oblige themselves to do their duty, and obey the lawful commands of their officers on board the said vessel, or the boats thereunto belonging, as become good and faithful seamen or mariners ; and at all places where the said vessel shall put in, or anchor*at during the said voyage, to do their best endeavors for the preservation of the said vessel and cargo, and not to neglect or refuse doing their duty by day or night, nor shall go out of the said vessel on board any other vessel, or be on shore, under any pretence whatsoever, until the above said voyage be ended, and the said vessel be discharged of her loading, without leave first obtained of the captain or commanding officer on board ; that in default thereof, he or they will be liable to all the penalties and forfeitures mentioned in the marine law, enacted for the government and regulation of seamen in the merchants' service, in which it is enacted, " That if any seaman or mariner shall absent himself from on hoard the ship or vessel, without leave of the master or officer commanding on board ; and the mate, or other officer having charge of the log-book, shall make an entry therein of the name of such seaman or mariner, on the day on which he shall so absent himself; and if such seaman or mariner shall return to his duty within forty-eight hours, such seaman or mariner shall forfeit three days' pay for every day which he shall so absent himself, to be deducted out of his wages; but if any seaman or mariner shall absent himself for more than forty-eight hours at one time, he shall forfeit all wages due to him, and all his goods and chattels which were on hoard the said ship or vessel, or in any store where they may have been lodged at the time of his desertion, to the use of the owner or owners of the said ship or vessel, and moreover shall be liable to pay him or them all damages which he or they may sustain by being obliged to hire other, seamen or mariners in his or their place." And it is further agreed, that in case of desertion, (d) Not only the termini of the voyage Europe," since it leaves the master at must be stated, but it must be so stated liberty to make such voyages thither as as to render the voyage or voyages definite he pleases, leaves the seaman at liberty and certain. A clause providing that the to abandon the service. Snow v. Wope, voyage between two ports may be el'.her 2 Curt. 0. Gt., 801. " direct or via ports in tl t East Indies or 650 ABBOTTS' FOEMS. Shipping Articles. death or imprisonment, the wages are to cease. And it is further agreed by both parties, that each and every lawful command which the said mastei or other officer shall think necessary hereafter to issue for the effectual government of the said vessel, suppressing immorality and vice of all kinds, shall be strictly complied with, under the penalty of the person or persons disobeying, forfeiting his or their whole wages or hire, together with every thing belonging to him or them on board the said vessel. And it is fuethek agreed on, that no officer or seaman belonging to the said vessel shall demand or be entitled to his wages, or any part thereof, until the arrival of said vessel at the said vessel's final port of discharge, and her cargo delivered. And it is hereby further agreed, between the master, officers and seamen of the said vessel, that whatever apparel, furniture and stores each of them may receive into their charge, belonging to tlie said vessel, shall be accounted for on her return ; and in case any thing shall be lost or damaged through their carelessness or inefficiency, it shall be made good by such officer or seaman, by whose means it may happen, to the master and owners of the said vessel. And it is heuebt expressly agreed, that should the said ship on the said voyage be seized, detained or fined, for smuggling tobacco, or any other article, by one or more of the undersigned sailors, cooks' or stewards, they shall all be responsible for the damages thence resulting, and shall severally forfeit their wages, and all their goods and chattels on board to the amount of such damage, and that the certificate of the person or persons who may seize, detain or fine the said ship for smuggling, signed by him or them, and verified by the American Consul at under his seal of office, shall be conclusive evidence of the facts therein stated, in all courts whatsoever, and especially as to the fact that smuggling had been committed, the in- dividual or individuals by whom the same had been committed, the amount of the fine imposed therefor upon the said ship, the incidental expenses thereon, and the number of days the said ship was detained in consequence thereof. No grog allowed, and none to be put on board by the crew ; and no profane language allowed, nor any sheath-knives permitted to be brought or used on board. And wheekas, it is customary for the officers and seamen while the ves- sel is in port, or while the cargo is delivering, to go on shore at night to sleep, greatly to the prejudice of such vessel and freighters, be it further agreed by the said parties, that neither officer nor seaman shall, on any pre- tence whatever, be entitled to such indulgence, but shall do their duty by day in discharge of the cargo, and keep such watch by night as the master shall think necessary to order relative to said vessel or cargo ; and whereas, it frequently happens that the owner or captain incurs expenses while in a foreign port, relative to the imprisonment of one or more of his officers or crew, or fii the attendance of nurses, or in the payment of board on shore, for the benefit of such person or persons: Now it is understood and agkeed by the parties hereunto, that all such expenditures as may be in- curred by reason of the foregoing premises, shall be charged to, and de- ducted out of the wages of any officer or such one of the crew by whose means or for whose benefit the same shall have been paid. And whereas, STAMPS. 651 Shipping Articles, it often happens that part of the cargo is embezzled after being safely delivered into lighters, and as such losses are made good by the owner* of the vessel, be it thereeobe agreed by these presents, thtt what- ever officer or seaman the master shall think proper to appoint, shall take charge of her cargo in the lighters, and go with it to the lawful quay, and there deliver his charge to the vessel's husband, or his representative, to see the same safely landed : That each seaman or mariner who shall well and truly perform the above-mentioned voyage (provided always that there be no desertion, plunderage, embezzlement or other un- lawful acts committed on the said vessel's cargo or stores), shall be entitled to the payment of the wages or hire that may become due to him pursuant to this agreement, as to their names is severally affixed and set forth: Provided nevertheless, that if any of the said crew disobey the orders of the said raaster or other officer of the said vessel, or absent himself at any time without liberty, his wages due at the time of such disobedience or absence shall be forfeited ; and in case such person or persons so forfeiting wages shall be reinstated or permitted to do further duty, it shall not do away such forfeiture. It being understood and agreed, by the said parties, that parol proof of the misconduct, absence or desertion of any officer or any of the crew of said vessel, may be given in evidence at any trial between the parties to this contraot, any act, law ■ or usage to the contrary thereof notwithstanding. In testimony whereof, and for the due performance of each and every of the above-mentioned articles and agreements, and ac- knowledgment of their being voluntarily, and withont compulsion or any other clandestine means being used, agreed to and signed by us, we have each and every of ns hereunto affixed our hands, the month and day against our names as hereunder written. And it is hereby understood and mutually agrked, by and between the parties aforesaid, that they will render themselves on board the said vessel, on or before [Saturday] the day of , 18 , at o'clock in the noon. [Here set down in columns the date of entry ; signature by the seamen ;(e) stations ; birthplace; age; height in feet and inches ; wages per month; advance wages ; advance abroad ; hospital money ; time of service in months and days ; whole wages ; wages due ; sureties; and witnesses of the signing of each.] CHAPTEE LXXXYII. STAMPS. It is the duty of the maker of an instrument, upon which a stamp 13 re- quired by the internal revenue law, to affix and cancel the stamp. If he neg- lects to do so, the party for whose use it is made may stamp it before it is used ; but in no case can it be legally used without a stamp. Any failure upon the part of the maker of an instrument to appropriately stamp it, subjects him to a («) Signature by the master is not essential. Baker v. Towner, 3 E. D. Smith, 182. 652 ABBOTTS' FORMS. Stamps. penalty of fifty dollars. The proper method of cancelling is by writing or stamping upon the face of the stamp the initials of the party, and date upon which the staiDT) was attached or used. When two oi more persons join in the execution of a single instrument, the stamp which it requires may be affixed and cancelled by any one of the parties. Recording officers and officers certifying copies of stamped instruments should note upon the copy that the original had a stamp, stating its amount, and that it was cancelled. The various classes of instruments which require stamps, and their respeo> tive rates are prescribed by a part of the internal revenue law, which is known as Schedule B. Repeal of the Stamp Tax. By section 36 of the Act of Congress, approved June 6, 1872, it is enacted as follows . Sec. 36. "That on and after 1st October, 1872, all the taxes imposed by stamps under and by virtue of schedule ' B,' of section 170 of the Act approved June 30, 1864, and the several Acts amendatory thereof be, and the same are hereby repealed, excepting only the tax of two cents on bank ch< cks. drafts or orders: provided, That where any mortgage has been executed and recorded, or maybe executed and recorded before the first day of October, 1872, to secure the payment of bonds or obligations that may be made and issued from time to time, and such mortgage not being stamped, all such bonds or obligations so made and issued on or after the said 1st October, 1872. shall not be subject to any stamp duty, but only such of their bonds or obligations as may have been made and issued bifore the day last aforesaid; and provided further, That in the meantime the holder 6f any instrument of writing, of whatever kind and desei-ip. tion, which has been made or issued without being duly stamped, or with a defunct (deficient) stamp, may make application to any Collector of Internal Revenue, and that upon such application such Collector shall thereupon affix the stamp provided by such holder upon such instrument of writing, as required by law to be put upon the same, and subject to the provisions of section 158 of the Internal Revenue Laws." The list of rates below given is retained in this edition because for a time it has an importance in reference to previously executed instruments. ' 1266. Stamp Duties. Acknowledgment of deeds, or other instruments, made before a justice, notary or other qualified officer Exempt. Affidavit. See note (c) below $0.05 Agreement or contract, other than those specified in this schedule ; any appraisement of value or damage, or for any other pur- pose ; for every sheet or piece of paper upon which either of the same shall be written 0.05 Provided, that if more than one appraisement, agreement or contract shall be written upon one sheet or piece of paper, five cents for each and every additional appraisement, agree- ment or contract. Any renewal of agreement, contract or charter, the same as required on the oiiginal. STAMPS. 653 Appraisements. Bills. Appraisement. See Agreement. Assignment or transfer of lease, mortgage or policy of insurance. See 1 Lease, Mortgage, Insurance, below. Assignment, patent right 0.05 Bank check, draft or order for the payment of any sum of money whatsoever, drawn upon any bank, banker or trust company, or for any sum exceeding $10 drawn upon any other person or persons, companies or corporations, at sight or on de- mand 0.02 Bill of exchange (inland), draft or order for the payment of any sum of money, not exceeding one hundred dollars, otherwise than at sight or on demand, or any promissory note (except bank-notes issued for circulation, and checks made and in- tended to be forthwith presented, and which shall be presented to a bank or banker for payment), or any memorandum, check, receipt or other written or printed evidence of an amount of money to be paid on demand or at a time designated, for a sum not exceeding one hundred dollars 0.05 And for every additional hundred dollars, or fractional part thereof in excess of one hundred dollars 0.05 (A renewal of a promissory note or other contract subjects it to the same amount of stamp duty as an original note.) Mil of exchange (foreign), or letter of credit drawn in, but payable out of, the United States, if drawn singly, or otherwise than in a set of three or more, according to the custom of merchants or bankers, shall pay the same rates of duty as inland bills of exchange or promissory notes. If drawn in sets of three or more: for every bill of each set where the sum made payable shall not exceed one hundred dollars, or the equivalent thereof in any foreign currency in which such bills may be expressed, according to the standard of value fixed by the United States. 0.02 And for every additional hundred dollars, or fractional part thereof in excess of one hundred dollars 0.02 Bill of exchange (foreign), or letters of credit, drawn out of, but payable in the United States, same duty as hill of exchange (inland). Bill of lading, or receipt (other than charter party) for any goods, merchandise or effects, to be exported from a port or place in the United States to any foreign port or place (except of British North America) 0.10 Bil 1 of side, by which any ship or vessel, or any part thereof, sball he conveyed to or vested in any other person or persons, when the consideration shall not exceed $500 0.60 Exceeding $500 and not exceeding $1,000 1.00 Exceeding $1,000, for every additional amount of $500, or frac- tional part U.areof °- 50 654 ABBOTTS' FORMS. Bills. Certificates. Bill of sale of personal property other than ship or vessel. ' (See Agreement.) 0.05 Bond. — For indemnifying any person for the payment of any sum of money, where the money ultimately reeoverahle thereupon is one thousand dollars or less 0.50 Where the money ultimately recoverable thereupon exceeds one thousand dollars, for every additional one thousand dollars, or fractional part thereof in excess of one thousand dollars 0.50 Bond. — For the due execution or performance of the duties of any office 1.00 Bonds. — County, city and town bonds, railroad and other corpora- tion bonds, and scrip, are subject to stamp duty. (See Mort- gage) Bond of any description, other than such as may be required in legal proceedings, or used in connection with mortgage deed and not otherwise charged in this schedule.(a) 0.25 Certificates of loan, in which there shall appear any written or printed evidenoe of an amount of money to be paid on demand, or at a time designated, are subject to stamp duty as bills of exchange inland. Certificate of stock in any incorporated company 0.25 Certificate of profits, or any certificate or memorandum showing an interest in the property or accumulations of any incorpo- rated company, if for a sum not less than $10 and not exceed- ing $50 0.10 Exceeding $50 and not exceeding $1,000 0.25 Exceeding $1,000, for every additional $1,000, or fractional part thereof 0.25 Certificate. — Any certificate of damage or otherwise, and all other certificates or documents issued by any port warden, marine surveyor, or other person acting as such 0.25 Certificate of deposit of any sum of money in any bank or trust company, or with any banker or person acting as such — If for a sum not exceeding $100 0.02 For a sum exceeding $100 0.05 Certificate of qualification of a justice of the peace, commissioner of deeds or r.otary public ; or of school teachers (when re- quired by State law), each 0.05 Certificate of the record of a deed or other instrument in writing, or tbe acknowledgment or proof thereof by attesting witnesses, either on the instrument itself, or upon the book '. Exempt. Certificate : of search of records; that certain papers are on file; (a) Where a bond requires no stamp witnesses, that it was executed in connee- Dy reason of its being given with a mort- tion with a mortgage-deed, and that the gage duly stamped, it is well to note at proper stamp was affixed to the mortgage, he end, and before the signatures of the STAMPS. 655 Certificates. Conveyances. that certain papers cannot be found ; of the sale of land for taxes ; of redemption of land sold for taxes ; of birth, marriage and death (when required by State law), each $0.05 Certified transcripts of judgment, satisfaction of judgment, and of all papers recorded, anil of papers on file, each 0.05 Certificate of any other description than those specified which may have any value in any court of law or equity 0.05 Charter Party. — Contract or agreement for the charter of any ship or vessel, or steamer, or any letter, memorandum or other writing, between the captain, master or owner, or person acting as agent of any ship or vessel, or steamer, and any other person or persons, for or relating to the charter of such ship or vessel, or steamer, or any renewal or transfer thereof, if the regis- tered tonnage of such ship or vessel, or steamer, does not ex- ceed one hundred and fifty tons 1.00 Exceeding one hundred and fifty tons and not exceeding three hundred tons 3.00 Exceeding three hundred tons and not exceeding six hundred tons 5.00 Exceeding six hundred tons 10.00 Confession of judgment (see "legal documents"), for less than $100 0.05 Contract. — Broker's note, or memorandum of sale of any goods or merchandise, stocks, bonds, exchange, notes of hand, real es- tate or property of any kind or description issued by brokers or persons acting as such, for each note or memorandum of sale 0.10 Conveyance. (b) — Deed, instrument or writing, whereby any lands, tenements or other realty sold shall be granted, assigned, transferred or otherwise conveyed to, or vested in, the pur- chaser or purchasers, or any other person or persons by his, her or their direction, when the consideration or value does not exceed $500 0.50 When the consideration exceeds $500 and does not exceed $1,000 1.00 And for every additional $500, or fractional part thereof, in ex- cess of $1,000 0.50 Certificate of acknowledgment of deed, no duty. Conveyance or deed, made in a foreign country to be used in the United States, same duty as if made in the United States. In all cases of " conveyance" of real estate (and when the con- (4) Where there is a sale of land en- the grantee assumes to pay the mortgage cumbered by a mortgage, withcut a cov- debt, or takes the land subject to it, that enant by the grantee, express or implied, debt is properly estimated as a part of the to pay the mortgage debt, the stamp consideration, and the stamp will be such must be appropriate to the consideration as is appropriate to the whole value of of the grant, of which consideration the the land, mortgage will nqt form a part. Where 656 ABBOTTS' FORMS. Entries. Leases. sideration is nominal) the stamps used must answer to the value of the estate conveyed. Entry of any goods, wares or merchandise at any custom-house, either for consumption or warehousing, not exceeding $100 in value $0.25 Exceeding $100 and not exceeding $500 in value 0.50 Exceeding $500 in value 1.00 Entry for the withdrawal of any goods or merchandise from bonded warehouse : 0.50 Onager's returns, if for a quantity not exceeding 500 gallons gross 0.10 Exceeding 500 gallons gross 0.25 Insurance (life). — Policy of insurance, or other instrument by whatever name the same shall be called, whereby any in- surance shall be made upon any life or lives — "When the amount insured shall not exceed $1,000 0.25 Exceeding $1,000 and not exceeding $5,000 in value 0.50 Exceeding $5,000 1.00 Insurance (marine, inland, and eike). — Each policy of insurance or other instrument, by whatever name the same shall be called, by which insurance shall be made or renewed upon property of any description, whether against perils by the sea or by fire, or other peril of any kind, made by any insurance company, or its agents, or by any other company or person, the premium upon which does not exceed $10 0.10 Where the premium exceeds $10 and does not exceed $50 0.25 Exceeding $50 0.50 Assignment or transfer of any policy of insurance must have affixed the same amount of stamp as the original document. Lease, agreement, memorandum or contract, for the hire, use or rent of any land, tenement, or portion thereof, where the rent or rental value is $300 per annum or less 0.50 Where the rent or rental value exceeds the sum of $300 per an- num, for each additional $200, or fractional part thereof in excess of $300 0.50 Upon each and every assignment of any lease, a stamp duty shall be required and paid equal to that imposed on the original in- strument, increased by a stamp duty on the consideration or value of the assignment equal to that imposed upon the con- veyance of land for similar consideration or value. Lease of coal or iron lands are subject to duty under head of " Con- veyance." Perpetual lease subject to stamp duty under head of " Conveyance," the stamp to be measured by resolving the annual rental into a capital sum. Clause of guarantee of payment of rent, incorporated or indorsed, additional duty of. 0.05 STAMPS. 657 Legal Documents. Mortgages. Legal documents.(c) — Writ, or other original process by which any suit is oommenced in any court of record, either of law or equity $0.50 Where the amount claimed in a writ, issued by a court not of record, is $100 or over 0.50 Upon every confession of judgment, or cognovit, for $100 or over (except in those cases where the tax for the writ of a commencement of suit has been paid) 0.50 Writs or other process on appeals from justices' courts or other courts of inferior jurisdiction to a court of record 50 Warrant of distress, when the amount of rent claimed does not exceed $100 0.25 When the amount claimed exceeds $100 0.50 Provided, That no writ, summons or other process issued by and returnable to a justice of the peace, except as hereinbe- fore provided, or hv any police or municipal court having no larger jurisdiction^ to the amount of damages it may render than a justice of the peace in the same State, or issued in any criminal or other suits commenced by the United States or any State, shall be subject to the payment of stamp duties: Manifest for custom-house entry or clearance of the cargo of any ship, vessel or steamer, for a foreign port (except ports in British North America), if the registered tonnage of such ship, vessel or steamer does not exceed 300 tons 1.00 Exceeding 300 tons, and not exceeding 600 tons 3.00 Exceeding 600 tons 5.00 Measurer's returns, if for a quantity, not exceeding 1,000 bushels. . 0.10 Exceeding 1,000 bushels 0.25 Mortgage of lands, estate or property, real or personal, 'heritable or movable whatsoever, where the same shall be made as se- curity for the payment of any definite and certain sum of money lent at the time or previously due and owing; or for- borne to be paid, beiDg payable; also any conveyance of any lands, estate or property whatsoever, in trust, to be sold or (c) Suits are commenced in many States davits, ia held to je a certificate, and sub- by other process than writ — viz., 6um- ject to a stamp duty of five cents. Where, mons, warrant, publication, petition, etc. — however, affidavits are made relative U in which cases these are regarded as the any petition, motion or other proceeding original processes, and severally require in uny suit actually pending in any court, stamps. ' no stamp duty is chargeable thereon, in An appeal or instrument by which a consideration of the fifty cent stump af- suit is transferred from a justice of the fixed to the " original process," by which peace to a superior court is deemed origi- such Buit was commenced. The fifty cent nal process, and subject to stamp duty as stamp affixed to the " original process," such. So are writs of scire facias. in the commencement of a suit, exempts The jurat of an affidavit, taken before all affidavits made or certificates issue*, a justice of the peace, notary public or under it. other officer duly authorized to take affi 42 658 ABBOTTS' FOEMS Mortgages. Powers. otherwise converted into money, which shall be intended only as security, and shall be redeemable before the sale or other disposal thereof, either by express stipulation or otherwise ; or any personal bond given as security for the payment of any definite or certain sum of money exceeding $100, and not exceeding $500 . $0.50 Exceeding $500 and not exceeding $1,000 1.00 And for every additional $500, or fractional part thereof in ex- cess of $1,000 0.50 And whenever any boiid or note shall be secured by a mortgage, but one stamp duty shall be required to be placed on such papers : Provided, that the stamp duty placed thereon is the highest rate required for said instruments, or either of them. On any warrant of attorney accompanying a bond or note, when such bond or note shall have affixed thereto the stamp or stamps denoting the duty required, no stamp will be required. Any assignment or transfer of any mortgage requiws same stamp duty as the original document. Each and every bond or note, secured by a chattel or real estate rnortgage, having paid a duty as prescribed above, no stamp duty is required on the mortgage securing the same. Original process, by which any suit is commenced in any court of record, either law or equity 0.50 The same in courts not of record where the amount claimed is $100, or over $0.50. Passage ticlcet, by any vessel from a port in the United States to a foreign port (except of British North America), not exceed- ing $35 0.50 Exceeding $35 and not exceeding $50 1.00 And for every additional $50, or fractional part thereof, in ex- cess of $50 , 1.00 Pawner's checks 0.05 Pension Papers. — Powers of attorney and all other papers relating to applications for bounties, arrearages of pay, or pensions, or to receipt thereof. Exempt. Power of. attorney for the sale or transfer of any stock, bonds, or scrip, or for the collection of any dividends or interest thereon. 0.25 Power of attorney or peoxt, for voting at any election for officers of any incorporated company or society, except religious, charitable or literary societies, or public cemeteries 0.10 Power of attorney to receive or collect rent 0.25 Power of attorney to sell and convey real estate, or to rent or lease . the same 1.00 Power of attorney, conveyance or document of any kind, made in any foreign country to be used in the United States, same stamp duty as is required on similar instruments made in the United States STAMPS. 659 Powers. Weigher's Returns. Power of attorney, to sell property in case of default of sum cov- ered by and expressed in stamped mortgage Exempt. Power of attorney for any other purpose $0.60 Prolate of will, or letters of administration : where the estate and effects for or in respeot of which such probate or letters of ad- ministration applied for shall be sworn or declared not to ex- ceed the value $2,000 1.00 Exceeding $2,000, for every additional $2,000, or fractional part thereof in excess of $2,000 0.50 Bonds of executors, trustees, administrators and guardians, each. 0.50 Letters of appointment Exempt. Certificate of appointment 0.05 Promissory Note. — See Bills of Exchange (inland.) Protest. — Upon the protect of every note, hill of exchange, ac- ceptance, check or draft, or any marine protest, whether pro- tested by a notary public or by any other officer who may be authorized by the law of any State or States to make such protest 0.23 Quit-cliim deed should be stamped as " Conveyance," except when given as "' Release of Mortgage," in which case it is exempt. Receipts for the payment of any sum of money, or for the pay- ment of any debt due, exceeding $20, not being for the satis- faction of any mortgage or judgment or decree of any court, and a receipt for the delivery of any property, except receipts issued by any persons, firms or companies doing business as an express or express company on the delivery of any prop- erty for transportation: Provided, that when two or more persons shall sign the same receipt, one or more stamps, equal in value to the several stamps required by this act, may be aflixed to said receipt in lieu of said several stamps 0.02 Satisfaction of judgment 0.05 Sheriffs return on writ, or other process Exempt Trust-deed, made to secure a debt, containing a clause of defeas- ance, and operating as a mortgage, is to be stamped as a mortgage. Trust deed, conveying estate to uses, should be stamped as "con- veyance." Warehouse receipt for property, goods, wares or merchandise, not otherwise provided for, in any public or private warehouse, when the property or goods so deposited or stored shall not exceed in, value $500 0.10 Exceeding in value $500, and not exceeding $1,000 .' 0.20 Exceeding in value $1,000, for every additional $1,000 0.10 Warehouse receipts for any goods, merchandise or property of any kind, not otherwise provided for, held on storage in any private or public warehouse or yard 0.25 Weigher's returns, if for a weight not exceeding 5,000 pounds. . . 0.10 Exceeding 5,000 pounds 0.25 660 ABBOTTS' FORMS. Subscriptions. CHAPTEE LXXXVIII. SUBSCRIPTION PAPERS. Subscription papers, like all other contracts, require both a party to con tract with and a consideration, to make them valid and binding; but, from their simple and informal nature, they are often defective in these respects, and sometimes prove entirely nugatory on this account. The object of the subscription should be clearly stated, the party to whom it t is to be paid and the consideration. Where, however, the paper imports a request to the body who are to apply the fund, and they go on and incur liabilities on the faith of the subscription, the consideration may be inferred from the facts ; and in such a case, the subscription becomes binding from the time of the acts constituting the consideration. PAGE 1267. Subscription for a building. . r 660 1268 1 . Subscription to the support of a clergyman 660 1269. Subscription to endow a college 661 1267. Subscription for a Building.(a) We, the subscribers, agree to pay the sums set opposite our respective names, for the purpose of building a Presbyterian church at Glen's Falls ; said church to be built on the lot now occupied by the old Presbyterian church in said village. The amount to be subscribed, in cash, is to bo $5,000 ; the money to be paid to the trustees of said church, or to a build- ing committee to be appointed by the undersigned subscribers. The body of the church to be finished and furnished uniformly ; the pews or slips are to be equally assessed, and rented annually; and said assessments and rents to be paid and applied by said trustees in payment for the stated preaching of the gospel in said church and congregation, and expenses of said church. \Date.] [Signatures and sums.] 1268. Subscription to the Support of a Glergymcm.{V) We, the subscribers, being members of the religious society in , and being desirous of raising a salary for the support of the Rev- (a) This form is sustained by Barnes v. 112. It is binding on the subscribers so Perine, 12 N. T. (2 Kern,.), 18, where it long as S. F. continues to administer the was held binding, upon the ground that gospel, and the subscribers to reside the trustees had ,gone on and removed within the distance of four miles, and the old buihling, and incurred expense could not be dissolved but by mutual on the iaith of the subscription. consent, nor cease to be obligatory, until (A) This form is sustained by Religious the minister ceased to render the service Society in Whitestown «; Stone, 7 Johns., stipulated. SUPERVISORS. 561 Subscription Papers. erend S. F., as a minister of the gospel in said society, do, for this purpose, and for the consideration of one dollar received of the trustees of said so- ciety, before signing this instrument, promise, covenant and engage, each one for himself, individually and severally, to and with the said trustees, that we will each pay to the said trustees, or such person as they shall ap- point to receive the same, the sums respectively annexed to our names, to be paid annually, so long as the said S. F. shall administer the gospel in said society, and so long as we, the subscribers, shall reside within four miles of the meeting-house in said society, to be by the said trustees ap- plied for the sole purpose of paying the salary of Mr. S. F. The first annual payment shall be made at the expiration of one year after he shall be in- stalled or ordained in the said society, and in each and every year there- after. And this instrument shall not be obligatory on us in any manner, until the whole sum subscribed shall amount to the sum of dollars. [Date.] [Signatures and sums.] 1269. Subscription to Endow a College.(c) In consideration of the effort by the trustees of College to raise a fund of dollars, and their agreement to receive, hold and apply such fund as hereinafter provided, we, the subscribers, hereby bind ourselves to pay to the said trustees the sums opposite to our respective names, in four equal annual payments, the first to be made on the day of , 18 . The conditions of the subscription are the following : 1. That the moneys collected on it shall be permanently invested as a pro- ductive fund, the interest of which shall be applied to the payment of the salaries of the officers. 2. That we shall not be holden to pay the sum subscribed by us unless the aggregate of our subscriptions and of contributions to this 1 object shall, by the day of , 18 , amount to dollars, nor until A. B., of , shall certify that, in his judgment, responsible subscriptions or con- tributions amounting to dollars shall have been made. [Date.'] [Signatures and sums.] CHAPTEE LXXXIX. SUPERVISORS. The supervisors of a county, as a board or body, and each supervisor in his own town, are regarded by the law as quasi corporations, so far as is necessary for the discharge of the duties prescribed by law. (c) The statement of the consideration (Oomet.), 581, to obviate the objection we have inserted in this form, which is there held fatal, that no consideration was from the case of Stewart v. Trustees of expressed or could be implied. Hamilton College, 2 Den., 403, 1 N. Y. 662 ABBOTTS' FORMS. Supervisors. Taxes. Their powers and duties are prescribed in detail by the statutes, which are very numerous, and the general regulations are much qualified by local pro- visions for which the session laws must be consulted. Forms for supervisors' use in connection with the subjects treated in this volume, will be found in their appropriate chapters. PAGB 1270. Appointment to fill vacancy 662 1271. Certificate to' correctness of accounts 662 1270. Appointment to Fill Vacancy. Town of , ss. Wheeeas A. B., duly elected supervisor of said town at the annual town meeting held therein on the day of , 18 , has neglected to take the oath of office prescribed in the sixth article of the constitution of this State, and to file the same as the law directs, by reason whereof the said office has become vacant, : Now therefoke we, the undersigned, three of the justices of the peace of said town of , in pursuance of the statute in such case made and provided, hereby appoint 0. D., supervisor of said town of , to hold the said office until a successor be duly elected or appointed. [Signatures and seals.] 1271. Certificate to Correctness of Accounts. We, the undersigned, the justices of the peace and town clerk of the town of , hereby certify that we have this day examined the within [or, foregoing] account of A. B., supervisor of said town; and we find the same in all respects correct and true, and that there is now a balance of dollars due from [or, to] him to [or, from] said town of [Date.] [Signatures.] CHAPTER XO. TAXES. The statutes of New York provide that the assessors of taxes are to use forms of assessment-rolls furnished by the comptroller of the State. Returns of unpaid taxes are also to be furnished by him. PAGH 1272. Notice of completion of assessment 668 1273. Affidavit to reduce tax on real estate 663 1274. Affidavit to reduce tax on personal estate 663 1275. Oath of the assessors to the assessment-roll ' 663 1276. Notice by supervisor to collector, of the amount of taxes 664 1277. Bond of collector 664 1278. Approval by supervisor 664 1279. Warrant for collection of taxes ,664 1280. Collector's notice 665 TAXES. 663 Assessment. 1272. Notice of Completion of Assessment.^) Notice is hereby given, that the assessors of the town of , have completed their assessment-roll for the year 18 , and a copy thereof is left with A! B., one of them at [here specify the place], where the same may be seen and examined by any person interested, at any time between the hours of a.m. and p. m., until the day of ,18 , on which day the undersigned assessors will meet at in said town, at o'clock in the noon to review their assessments, and will then receive the ap- plication of any person conceiving himself aggrieved. [Date.] [Signatures.~\ 1273. Affidavit to Seduce Tax on Seal Estate.Q)) OOTTNTT OF , SS. A. B., of the town of , in said county, being duly sworn, says that the value of [here designate the real estate], which on the assessment-roll of said town, for the year 18 , is assessed to him and valued at dollars, does not exceed in value dollars. [Deponent further says that he is a minister of the gospel, and the valne of his whole real and personal estate does not exceed the sum of dollars.] Swoen before me, this day 1 [Signature.] of , 18 . I [Signature of] Assessor.(c) 1274. Affidavit to Reduce Tax on Personal Estate. County op , s*. A. B., of the town of , in said county, being duly sworn, says that the value of the personal estate owned by him does not exceed the sum of dollars, after deducting his just debts(i) [and his property invested in incorporated companies liable to taxation]. Swoen [etc., as above]. [Signature.] 1275. Oath of the Assessors to the Asssessment Soil. State of , ) J- ss. County of . J "We, the undersigned, do severally depose and swear, that we have set down in the foregoing assessment-roll all the real estate situated in the (o) To be posted in three or more pub- People ». Supervisors of Westchester, 15 lie places in the town. Barb., 607 ; People v. Koss, 15 Bow. Pr., (b) The affidavit as to value must be 63. positive. It is not enough to swear to (d) An affidavit stating that the amount belief. People v. Supervisors of West- of the applicant's property does not exceed Chester, 15 Barb., 607. a certain sum, deducting debts and Ho- le) The New York statute requires the bilities, is defective. Debts are mentioned affidavit to be taken before one of the in the statute, but liabilities are not. assessors. Jt is not satisfied by an affl- People v. Supervisors of Westchester, 15 davit taken before a justice of the peace. Barb., 607. 664: ABBOTTS' FORMS. Taxes. town of [or, Ward of the city of ], according to our best information ; and that, with the exception of those cases in which the value of the said real estate has been changed by reason of proof produced before us, we have estimated the value of the said real estate at the sums which a majority of the assessors have decided to be the full and true value thereof, and at which they would appraise the same in payment of a just debt due from a solvent debtor; and also that the said assessment-roll contains a true statement of the aggregate amount of the taxable personal estate of each and every person named in such roll, over and above the amount of debts due from such persons respectively, and excluding such stocks as are other- wise taxable, and such other property as is exempt by law from taxation, at the full and true value thereof, according to our best judgment and be- lief. [Signatures of assessors.] I certify that the foregoing was severally subscribed and sworn by said assessors before me, this day of , 18 . [Signature of] Justice of the Peace. 1276. Notice by Supervisor to Collector, of the Amount of Taxes. To A. B., collector of the town of : You are hereby notified that the amount of taxes to be collected by you in said town of , for the current year, is dollars and cents. [Date.] [Signature.] 1277. Bond of Collector. [Penal clause tunning to the supervisor of the town (see p. 212), and, in a penalty double the amount of the taxes.] The condition of this obligation is such, that whereas the said A. B. has been chosen [or, appointed] collector of said town, and has received [or, will receive] the assessment-roll of said town, for the purpose of collecting the taxes therein named, amounting to the sum of dollars : now, therefore, if the said A. B. shall faithfully execute the duties of said collect- or, then this obligation to be void ; otherwise, to remain in full force and virtue. In presence of [Signatures.] [Signature of witness.] 1278. Approval by Supervisor. I approve the within bond and the surety [or, sureties] therein. [Date.] [Signature.] 1279. Warrant for Collection of Taxes. County of , ss. The People of the State of New York to A. B., collector of the town of , in said county : You are hereby commanded to collect from the several persons named in the assessment-roll hereunto annexed and herewith delivered to you, the TAXES. 665 Custom-house Power. several sums mentioned in the last column thereof opposite to their respec- tive names [also to colleot the sum of 50 cents, as commutation tax, from every person appearing by said assessment-roll liable to pay the same ; aDd when the name of any person between the ages of eighteen and twenty-one years shall appear in said roll liable to pay said commutation tax, yon are hereby further directed to collect the said sum of 50 cents of the father, master or guardian with whom such person shall reside, or out of any prop- erty such minor may have in the town]. And on all sums of taxes received or collected within thirty days after giving the notices required by the 29th section of the act of May 10, 184o, chapter 180, and the acts amending the same, you are directed to receive and collect, in addition to the taxes named in the said assessment roll, cents on every dollar of tax, for your fees for collecting the same. And on all sums of taxes remaining unpaid after the expiration of thirty days from posting the notices specified in said act, you are directed to receive and collect, in addition to the said tax so re- maining unpaid, five cents on every dollar for your fees for collecting the same. And you are hereby directed out of the moneys so colleoted to pay on or before the day of ,18 [here insert directions as to what officers the moneys are to be paid to, and the amount to be paid to each]. And in case any person named in the assessment-roH shall neglect or re- fuse to pay his taxes or the fees for collecting the same (after the notice allowed by law), you are hereby authorized to levy the said taxes and fees as aforesaid, by distress and sale of the goods and chattels of such person, together with the costs and charges of such distress and sale; and for so doing this»shall he your sufficient warrant. Given under our hands and seals, this day of , 18 . {Signatures, titles and seals.] 1280. Collector^ Notice. Notice is hereby given, that the undersigned, the collector of taxes in and for the town of [or, Ward of the city of ], have received the warrant for the collection of the taxes for the present year ; and that I will attend at [specifying the place], in said town [or, ward], on day of oach week, for thirty days from the date heroof, from nine o'clock in the forenoon until four o'clock in the afternoon, for the purpose of receiving payment of taxes. [Bate.] [Signature.] 666 ABBOTTS' FORMS. Towns. CHAPTBE XCI. TOWNS. Townships, or towns, as they are designated in the laws of New York ar d Bome other States, in contradistinction to cities and other municipalities inco; - porated by special charters, for the most part administer their affairs according to general laws applicable throughout the State at large. There are many exceptions to this, however, arising where local statutes exist affecting one or more towns. The following forms relate to the ordinary cases of proceedings in the ad- ministration of town affairs? Special subjects, such as Disorderly Persons, Estkats, Fences, Highwats, Poor Laws and Schools, are the subject of separate chapters. PAGE 1281. Call for a special town meeting 66G 1282. Notice of intention.to propose resolution to build new town-house 666 1288. Notice to board of supervisors, of resolution to raise money for new town- house 667 1284. Resolution of the board of supervisors 667 1285. Di vision of a town into election districts, or alteration of the districts 667 1286. Notice of supervisor or town clerk, calling meeting to fill vacancy in office of inspector of elections 667 1287. Appointment of an inspector of elections to fill a vacancy 667 1288. Notice of acceptance of resignation of a town officer. 668' 1289. Affidavit to be attached to an account presented for audit 668 1290. Certificate of town auditors 668 1291. Abstract of claims presented to the town auditors for audit 668 1281. Call for a Special Town Meeting. To the clerk of the town of : The undersigned persons, who are by law eligible to the office of super- visor, require a special town meeting to be called for the purpose of [hert state the object], and request you to give due notice thereof, to be held oi the day of , at o'olook in the noon, at the [Date.] [Signatures.] 1282. Notice of Intention to Propose Resolution to Build New Town-Eouse Town of Notice is hereby given that at the annual town meeting, on the day of next, the undersigned will propose a resolution, authorizing the sum of dollars to be raised for the purchase of a site for, and the building of, a town-house, in said town. [Bate.] [Signature.] TOWNS. 667 Election Districts. Inspectors. 1283. Notice to Board of Supervisors, of Resolution to Raise Money for New Town-House. To the board of supervisors of the oounty of : The eleotors of the town of , in which there is now no town-house, ind the number of electors in which town is , adopted the following resolution, after due previous notice, at a meeting held on the day of [Copy of resolution.] [Date.] [Signatures of justices who presided.] 1284. Resolution of the Board of Supervisors. Resohed, That the question of raising the sum of dollars in the town of , for the purchase of a site for, and the building of, a town- house, in said town, voted upon at the last annual town meeting held therein, be again submitted to the electors thereof, at the next annual town meeting. 1285. Division of a Town Into Election Districts, or Alteration of the Districts. Town of , ss. "We, the undersigned, composing the board of town officers of , do hereby certify that we have divided the town into [three] election districts [or, that we have altered the existing election districts in said town, so that it now consists of election districts], which are numbered and bounded as follows — viz. : Number one, bounded [describing each district]. [Signatures and titles.] 1286. Notice of Supervisor or Town Cleric Calling Meeting to Fill Vacancy in Office of Inspector of Elections. You are hereby notified to attend a meeting of the supervisor, town clerk, and justices of the peace, of this town, appointed by me to be held at the office of , on the day of , at o'clock in the noon, for the purpose of filling a vacancy in the office of inspector of elections, in election district number , in said town. [Date.] [Signature.] [Address], 1287. Appointment of an Inspector of Elections to Fill a Vacancy. Town of , ss. A. B. is hereby appointed an inspector of elections in and for election district number , in said town, to fill the vacancy occasioned by here itate cause of vacancy, naming the previous incumbent]. Given under our hands, this day of , 18 . [Signatures.] 668 ABBOTTS' FORMS. Audit of Claims. 1288. Notice of Acceptance of Resignation of a Town Officer. To the town clerk of the town of : You are hereby notified, that we, the undersigned, justices of the peace of the said town, have, for good cause shown, accepted the resignation oi A. B. [here designate also his office], of said town. . [Date.] [Signatures of justices.] [Appointment to foil a vacancy may be as in Form 1270.] 1289. Affidavit to be Attached to an Account Presented for Audit. County op , »s. A. B., of , being duly sworn, says, that the items for services and disbursements mentioned in the foregoing account by him presented [or, claimed], are in all respects correct; that such disbursements and services have in fact been made or rendered, or are necessary to be made or rendered at this session of the board; and that no part thereof has been paid or satisfied. SwfOuN to, this day of \ "*» [Signature of deponent.] , 18 , before me J [Signature of] Chairman of the Board of Auditors of the Town of , 1290. Certificate of Town Auditors.(a) Cot/nty op , ss. We, the undersigned, composing the board of town auditors of saw town, hereby certify, that we have this day audited and allowed to A. B. [desig- nating his office, if any], by whom the foregoing account has been presented to us, the sum of dollars, as and for his services as such [iind the disbursements necessarily paid out by him in the discharge of his duties], up to, and including, the day of , instant; and that we* find a balance of dollars and cents, to be due from [or, to] the said A. B., to [or, from] the town of [Date.] [Signatures.] 1291. Abstract of Claims Presented to the Town Auditors, for Audit. Abstract of the names of all persons who presented accounts to be audited, to the board of town auditors of the town of , on the day (a) This form is sustained by People v. town auditors, be signed with their official Supervisors of Queens, 1 Sill, 195. It is additions, nor state that they met at the not essential that a certificate purporting, the time and place prescribed by law. by its erms, to be made by '-oard of TRUSTS. G69 General Principles. of , 18 , with the amounts claimed by each, and Jlie amounts finally audited. TITLE OF OFFICES, OE NATUEE OF CLAIM OE SEBVIOEB. AMOUNT CLAIMED. AMOUNT AUDITED. We hereby certify that the foregoing abstract is correct. [Date.'] [Signatures.] CHAPTEE XGII. TRUSTS. . A trust is a confidence reposed in one person, who is termed the trustee, for the benefit of another, who is called the cestui que trust ; and it is a confidence respecting property, which is thus held by the former for the benefit of the latter. Out of this confidence arise two estates in the property which is the Bubject of it ; a legal estate in the trustee, which consists essentially in obliga- tion ; and an equitable estate in the cestui que trust, which consists in right and beneficial enjoyment.(a) By the provisions of the Revised Statutes of the State of New York, which have been in substance adopted in some other States, all trusts in real property, except trusts resulting from implication of law, and except also certain enu- merated express trusts, are abolished ; and every person entitled to the possession of land, and to the receipt of its rents and profits, is declared to have a legal estate therein commensurate with his beneficial interest. Express trusts are therein defined, and the purposes for which they may be created, enumerated ; and minute provisions are inserted to guard them and prevent their being abused to the injury of creditors and Duim-fide purchasers. Trusts which are not authorized as trusts by these provisions, operate, if at all, as powers in trust. The objects for which express trusts in lands may be created are thus defined by the statute. 1. To sell lands for the benefit of creditors. 2. To sell, mortgage or lease lands for the benefit of legatees, or for the purpose of satis- fying any charge thereon. 3. To receive the rents and profits of lands, and apply them to the use of any person, during the life of such person, or for any shorter term, subject to the rules of the statute as to the creation of estates. 4. To receive the rents and profits of lands, and to accumulate the same, for purposes and within the limits prescribed by the statute for the suspension of the absolute power of alienation. A trust to receive the rents, profits and income of property, and to pay them to the cestui que trust, is valid as a trust to apply them to his use, within the statute. Express trusts of personal estate may be created for any purpose which is not illegal, for the Revised Statutes have not defined the purposes for which they may be created. By the Statute of Frauds, as generally enacted in this country, assignments of property in trust must be in writing, subscribed by the party or his agent. In other cases than assignments or conveyances in trust, it is not essential to the creation of a trust, even in lands, that a deed or written instrument be executed. A person in the legal possession of money or property, acknowledging a trust, becomes from that time a trustee, if the acknowledgment is founded on {a) BurriWs Law Diet., tit. Thust. 670 ABBOTTS" FOEMS. Declaration of Trust. a valuable or meritorious consideration. But to render the obligation of a trust in real property enforceable, it must be manifested or declared by some writing signed by the trustee. And although it is not essential that the writing by which the trust is manifested and proven should be in any par- ticular form, the nature of the trust, and the terms and conditions of it, must sufficiently appear, so that the court may not be called upon to execute the trust in a manner different from that intended. Trusts are usually created by Assignments for Creditors, Deeds or Wills, and for the forms appropriate to this purpose, the reader is referred to those chapters. 1292. Declaration of trust in personal property 670 1293. Declaration of trust in lands 670 1292. Declaration of Trust in Personal Property. I, A. B., of , in consideration of , hereby acknowledge and declare, that I am possessed of [ten shares of the capital stock of the C. D. Company, numbered from one to ten inclusive], in trust, and for the only benefit and advantage of Y. Z., of , his executors, administrators and assigns, the same having been purchased with the moneys of the said Y. Z., and my name, as to the said shares, and all the income thereof, from hence- forth to grow due or accrue, is used only in trust for the said Y. Z. And I, for myself, my executors and administrators, hereby covenant with the said Y. Z., his executors, administrators and assigns, that I and they shall and will, at any time hereafter, at the request and costs of the said Y. Z., his executors, administrators and assigns, assign and transfer the said shares to him, or them, or order. r „. s [Bate.] Wgnature.] 1293. Declaration of Trust in Lands. To all to whom these presents shall come, I, A. B., of , send greet- ing: Wheeeas, C. D., of , has, by his deed bearing even date herewith, for the consideration of dollars, granted and conveyed to me in fee- simple, all [etc., here insert description], as by said deed will more fully ap- pear : And whereas I have this day executed and delivered to said 0. D. a mortgage upon said premises, as collateral security for the payment of my bond, conditioned for the payment of dollars [here state terms], to secure a part of the consideration money expressed in the said deed. Now, enow tk, that I, the said A. B., do, by these presents, make known, admit and declare, that said premises were so conveyed to me, and that I now hold, and will continue to hold, the same, in trust only, for the use and ben- efit of Y. Z., son and heir-at-law of , deceased, his heirs, executors and administrators, and that I have no beneficial interest therein, except what may arise by Jegal or equitable implication from the circumstance of my having executed the said bond and mortgage. And I do further ad- mit, that the residue of the consideration money expressed in said deed to me — to wrt, fie sum of dollars — was paid by W. X., , for the benefit of said Y. Z. And I do, for myself, my heirs, executors and TURNPIKE COMPANIES. 671 Articles of Association. administrators, covenant and agree to and with said W. X. and Y. Z., and each of them, and with their and each of their executors, and administra- tors and assigns, that I, or my heirs, shall and will convey the said premises, by a good and sufficient deed, to the said Y. Z , or his assigns, as he or they may direct or require, whenever and as soon as the said mortgage, so executed by me, shall have been paid off and discharged, or otherwise fully secured to me, and that free, clear and discharged of and from all and every encumbrance thereon by me or my heirs. And that 1, or my heirs, shall not do, or knowingly suffer or permit, any act, deed, ma-tter or thing, whereby said premises can, shall or may be in any wise impaired, injured jr encumbered, in title, interest, charge, estate or otherwise, however. In witness [etc., as in Form 1228]. CHAPTER XCIII. TURNPIKE COMPANIES. Companies for the construction of turnpikes and plankroads may be formed under the general laws of the State of New York, by any number of persons not less than five. The statutes prescribe in detail the modes of proceeding to form such corporations, and to lay out the road. PAGE 1294. Articles of association 671 1295. Notice that the books are open for subscription 672 1296. Affidavit of directors as to subscription 672 1297. Application to supervisors to lay out road '. 672 1298. Notice of application to supervisors 678 1299. Consent of land owners to use of highway 678 1800. Release of right of way, by supervisor and highway commissioners 673 1294. Articles of Association. Articles of association made this day of ,18 , between the subscribers : 1. The undersigned hereby form themselves into a corporation for the purpose of constructing, owning and keeping in repair a plankroad from to , to be called and known as the Company, and to continue for the period of years from the date hereof. 2. The amount of capital stock of said company shall be dollars, and shall consist of shares, of dollars each. 3. The affairs of the company shall be managed by a hoard of directors ; the first directors, until others are legally chosen, shall be [here insert names]. 672 ABBOTTS' FORMS. Superscription. 4. The said road is to be constructed from [here designate the route, ter- mini, etc.] 5. The bona-flde stockholders owning a majority of the capital stock of said association may, at any legally notified meeting of the members there- of, adopt, alter or amend such by-laws as are proper for the regulation of the affairs of the corporation. 6. The directors shall issue scrip to those entitled to stock in said com- pany when per cent, on the amount of such stock shall have been paid by them thereon ; the scrip to be signed by the president, and counter- signed by the secretary; and the treasurer shall indorse upon the scrip held by any stockholder all sums paid by him thereon, and the time when paid. [Date.] NAMES OF SUBSOKIBEBS. PLACE OF EES1DENOE. NTTMBEE OF SHAKES. 1295. Notice that the BooTcs are Open for Subscription. Notice is hereby given, that books for subscribing to the capital stock of the [name of road] to be constructed from [here specify the termini and route], will be opened at , in the town of , between the hours of and , from the day of to the day of , inclusive. [Date.] [Signature.] 1296. Affidavit of Directors as to Subscription. County of , ss. A. B., 0. D. and E. F. being severally sworn, say, that they are the direc- tors of the Company, and that the amount of capital stock required by the first section of the "Plankroad Act," passed May 7, 1847, being at least $500 for every mile of the road intended to be built by said company, has been subscribed in good faith, and that at least 5 per cent, on such amount has been paid in cash to the directors of said company for the pur- poses specified in said act. Swobn [etc., as in Form 1115]. [Signatures.] 1297. Application to Supervisors to Lay Out Road. To the supervisors of the county of : The directors of the Company hereby apply to you for authority to lay out and construct a plankroad from [specifying route, width and ter- mini], and to take the real estate necessary for such purpose; and that commissioners may be appointed to lay out said road. [Date.] [Signature of] President. [Signature of] Secretary. ■WARRANTS. 673 Eight of Way for Turnpike. 1298. Notice of Application to Superviiors. Notice is hereby given, that application will be made to the Board of Supervisors of the county of , at their [annual] meeting to be held at , in the county of , on the day of , 18 , for their assent to the construction of a plank [or, turnpike] road, from the of to the of , in said county. [Date.] [Sig7iature.] 1299. Consent of Land Owners, to Use of Highway. The t/sdeesioned, owners of land along the highway leading from to , and residing on said highway, hereby consent to the construction of a turnpike [or, plank] road upon the s»id highway. [Date.] [Signatures.] 1300. Release of Sight of Way, by Supervisor and Highway Commissioners. This agreement, made this day of , between A. B., supervisor of the town of , in the county of , and 0. D. and E. F., commis- sioners of highways of said town, of the first part, and the Com- pany of the second part, witnesseth : That the parties of the first part grant and convey unto the parties of the second part, in consideration of dollars to them in hand paid by the parties of the second part, the receipt whereof is hereby acknowledged, the right to use and occupy the highway [describing the route], for the purpose of constructing, owning and using a road thereon, during the time it shall be needed or required therefor by the said company. In witness whereof, the parties of the first part have hereunto set their hands, this day of , 18 . In presence of [Signatures and titles.] [Signature of witness.] CHAPTEE XCIV. "WARRANTS. A wakrant is a written authority from a court or magistrate authorizing and directing the officer to whom it is addressed to do some act. At common law, a seal is deemed essential to a valid warrant ; but the statutes often au- thorize warrants in particular cases without seal. A warrant should be ad- dressed to some officer, but it may designate him by name, or may be directed to any of several officers of a class. Various forms of warrants adapted to particular proceedings will be found in their places in other chapters. 43 674 ABBOTTS' FORMS. General Principles. CHAPTEE XCV. WILLS. The power to make wills and mode of executing them, vary somewhat in the different States. At common law, all persons except infants, married women and persons of insufficient mind, may make wills of real or personal property ; and infants of the age of fourteen, if males, and twelve, if females, may make wills of personal property. But this rule lias been generally modified by statute. In New York, the statutes are to the effect that all persons except idiots, persons of unsound mind and infants, may devise their real estate ; and that males of the age of eighteen, and females of the age of sixteen, of sound mind and memory, may bequeath their personal estate, thus increasing the restriction which the common law laid upon infants, but removing the disability of mar- ried women. Unsoundness of mind does not absolutely disqualify a person. If there is a sufficient degree of mental capacity to exercise the power of legal choice, or if there are lucid intervals, in one of which the will is made, or if the insanity relates only to special subjects not within the scope of the testamentary act, the will may be sustained, if intelligent action in making it is shown. A gift of real property is termed a devise : a gilt of personal property, a bequest or legacy. All persons may take personal property by bequest, and all persons capable in law of holding real property may take real property by devise. Corporations, however, cannot take real property by devise, unless they are specially authorized to do so by their charters or other laws. And by a recent act in New York, it is provided that, no person having a husband, wife, child or parent, shall devise or bequeath to any benevolent, charitable, literary, scien- tific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of debts ; and such devise or bequest shall be valid to the extent of one-half and no more.(as) Form. — No particular words are necessary to constitute a will. With an exception in favor of soldiers and sailors, who from necessity the law allows to make wills verbally — called nuncupative wills — there must be a written statement of the testator's wish, signed by him. Any statement, however, which makes the testamentary character apparent, is sufficient to give the instrument the character of a will. In no case does a will have any operation until the testator's death. And it may be made upon condition, so that even then it will not take effect except under the circumstances specified. Two persons may make a conjoint or mutual will. It is very common to commence wills with a formal preamble, reciting the testator's capacity to make a will, and the feelings which move him to the act. These phrasgs are not, however, of any legal efficacy, and may be. inserted or not at pleasure. Execution. — As to the manner of the execution of wills, the law is precise and stringent. The statutes enacted in the United States generally require that wills must be signed in the presence of two witnesses, and in many of the (a) Laws of 1 ■ 10, «07, oh. 860. WILLS. 675 General Principles. States three witnesses are required. But in a few States an exception to this rule is made where the will is wholly in the handwriting of the testator, especially if it be found among his papers, or disposes only of personal property. A seal is usual, but is not always required by the statutes, and when not so required is not necessary to the validity of the will, except the, will contain an appointment in execution cf a power requiring a seal. A mark may be a. sufficient signature for the testator or for a witness ; but it is preferable to have a witness who can write his name. In general, a beneficial devise or bequest to a subscribing witness is void, unless there are the requisite number of other competent subscribing witnes-srs, so that the will is proved without resort to the testimony ot the interested witness. It is usual and proper, but not essential, to write at the end of the will, be- low or at one side of th3 testator's signature, a statement of the place, time, pur- pose and circumstances of the signatures and execution,, and to let the witnesses sign below. This statement is called the attestation clause. The advantage of such a statement is in facilitating the probate of the will. If a witness has no recollection of his attesting the will, but recpgnizes his name under sucli a statement as written by himself, and testifies that he should not have written it there had he not known the statement to be true, the courts will generally receive this as supplying his defect of me.mory. The attestation must, except in a few States, be in the presence of the testator, but need not necessarily be in the same room, if he is so placed as to see the act. Against the name of every witness his residence or address should be written. In some of the States this is required by law, and in all cases it is convenient ; but the absence of this, even where it is required, does not invalidate the will. The rules prescribed by statute in the various States, for the attestation of wills, are stated in alphabetic order at the end of the chapter. Wills and special clauses. paoe 1801 . Short form 676 1802. A will bequeathing several legacies, and appointing a Tesiduary legatee 676 1808. A will of real and personal estate 677 1304. Pecuniary legacy 678 1805. Legacy of furniture 678 1306. Legacy of dress and ornaments to wife 078 1807. Legacy of furniture, etc., to wife, during life or widowhood 678 1808. Legacy of furniture to be divided amongst children 678 180b). Legacy of a debt 678 1810. Legacy of a share under another person's will 679 1311. Bequest of jewels, etc., to wife, and of estate in household effects for life or widowhood 679 1812. Bequest of the good-will of a business. ., 679 1813. Legacies to children, with directions for investment 679 1814. Legacy to an infant, to be paid to his father 680 1815. Legacies to executors .' 6S0 1816. Pecuniary legacy to a married woman . 680 1817. Bequest in trust for unincorporated society 680 1318. Bequest to a corporation 680 1319. Bequest on condition 681 1820. Direction that legacies shall be paid, free from duty 681 1321. Direction that certain legacies shall be paid in full, in priority to the others 681 1822. Duclaratiou that legacies Bhall not be in satisfaction of debts 681 1823. Provision that, if a legatee is dead, the legacy "dial' go to his execu- 681 tors or administrators 68 1 676 ABBOTTS' FORMS. Wills. PA6B 1824. Declaration that money advanced by the testator during his life, to his children, shall be deducted from their portions or shares of his estate G81 1825. Declaration that advancement shall not he in satisfaction of portions. 682 1826. Authority to executoTs to defer calling in a debt 682 1827. Bequest of an annuity to be purchased 682 18128. Direction as to payment of annuities 6S2 182M. Bequest of fund with power of appointment 682 1880. Devise of house and lands to son on his attaining twenty-one, with power to trustees to apply rents and profits of estate during minority of son for his benefit 683 1831. DevUe to executors in trust, with power to sell, etc 684 1332. Power to arrange and compromise 684 1883. Directions to executors as to winding up testator's partnership business 684 1384. Clause concerning disputes 685 1385. Clause releasing debts due 685 1836. Appointment of executors 685 1837. Attestation clause describing execution 636 1888. Attestation of will according to the laws of England 686 II. Codicils. 1839. Codicil adding a new provision 686 1840. Codicil appointing a trustee and executor in the place of a deceased trustee and executor appointed by the testator's will 686 1841. Codicil revoking the appointment of one of trustees and executors, and appointing a new one in his place 687 1342. Codicil appointing an additional trustee and executor 687 III. Instructions fob execution according to the laws of the various states, ALPHABETICALLY ARRANGED. I. Wills ahd Special Clauses. 1301. Short Form. The will of A. B., of , [merchant]. 1. I give, devise and bequeath all my property, both real and personal, to C. D. [revoking all former wills]. 2. I appoint £. F. the executor of this will. [Date.] [Signature.] \Signa ures of witnesses, with or \ without attestation clause, for which se$ Form 1337.] 1302. A Will Bequeathing Several Legacies, and Appointing a Eesiduary Legatee. I, A. B., of , [merchant], declare this to be my last will and testa- ment. 1. I bequeath to my wife, 0. B., all the fixtures, prints, books, plate, linen, china, wines, liquors, provisions, household goods, furniture, chattels and effects (other than money or securities for money), which shall at my death be in or about my dwelling-house and premises at WILLS. 677 Keal and Personal Estate. 2. I bequeath to my said wife the sum of dollars, to be paid to her within one month after my death, without interest. 3. I also give and bequeath to my said wife the sum of dollars(J). 4. I also bequeath the following legacies to the several persons hereafter named : To my nephew, E. F., the sum of dollars ; to my cousin, G-. H. % the sum of dollars ; and to my friend, J. K., the sum of dol- lars [and so on with other pecuniary legacies]. 5. I al-o bequeath to each of my domestic servants who shall be living with me at the time of my death in the capacity of [state the description of servants to whom the legacies are to oe given] one year's wages, in addition to what may be due to them at that time. 6. All the rest, residue and remainder of my real and personal estate I devise and bequeath to E S., his heirs, executors, administrators and as- signs, absolutely forever. 7. I appoint T. U. and V. W. executors of this my will. In witness [etc., as in Form 1337J. 1303. A Will of Heal and Personal Estate. , I, A. B. of the town of , in the county of , and State of , [merchant], declare this to be my last will and testament : 1. I give and bequeath to my wife, 0. B., dollars, to be received by her in lieu of dower. 2. To my son, E. B., dollars [which said several legacies I direct to be paid within after my decease]. 3. I give and devise to my son, E. B. aforesaid, his heirs and assigns, all [here designate the property], together with all the hereditaments and ap- purtenances thereunto belonging or in any wise appertaining: to have and to hold the premises above described to the said E. B., his heirs and assigns, forever. 4. I give and devise all the rest, residue and remainder of my real prop- erty, of every name ami nature whatsoever, to my said daughter, M. B. [and my daughter, 0. B., to be divided equally between them, share and share alike]. 5. I give and bequeath all the rest, residue and remainder of my personal property, of what nature or kind soever, to my said wife, 0. B. 6. I hereby appoint E. B. the sole executor of this will, revoking all for- mer wills by me made. In witness [etc., as in Form 1337]. (4) The object of leaving two legacies small legacy sufficient for current ex- to the wife is, that the executor will prob- penses, although he might not be able to ably be able to ascertain iu a short time pay the second, which may be made suf- whether the estate be solvent, and may fieient for a permanent provision for the then have the means of paying the wifo a wife. 678 ABBOTTS' FOEMS. Legacies. 1304. Pecuniary Legacy. I bequeath to my said wife the sum of dollars [to be paid to her within month after my death]() Mississippi. A will must be " signed by the testator or testatrix, or by some other per- son in his or her presence, and by his or her express directions ; and moreover, (»■) Rev. Stat. (1857), 453, § 1. cording to the laws of the place where (s) Vol. i., Maryland Code, 665, § SO'.. rande. lb., § 8. (t) Rev. Stat. (1860), 476, § 6. Wills (u) Convp. L. of 1857, 864, § 5. made out of the State may be made ao- (v) Pub. Stat. (1858), 426, § 5. WILLS. 691 Attestation. if not wholly written and subscribed by himself or herself, be attested by three credib.e witnesses, in the case of the devise of real estate, and one or more credible witnesses in case of the devise of goods and chattels, and personal estate, in presence of the testator."^) Missouri. A will must be " signed by the testator, or by some person, by his direction, in his presence ; and shall be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator. "(a) New Hampshire. A will of real or personal estate must be " signed and sealed by the testator, or by some person in his presence, and by his express direction, and attested and subscribed, in his presence, by three or more credible witnesses. "(y) New Jersey. A will must be " signed by the testator, which signature shall be made by the testator, or the making thereof shall be acknowledged by him, and such writing declared to be his last will, in the presence of two witnesses present at the same time, who shall subscribe their names thereto as witnesses, in the presence of the testator, "(a) New York. A will must be executed and attested in the following manner :(a) 1. It shall be subscribed by the testator at the end of the will. This subscription of the testator must be at the end of the will. Additional matter cannot be added after the signature and before the attestation of the witnesses.(6) But it is competent to annex an instrument referred to in the will as an- nexed, and such instrument will be deemed incorporated in the will without being also subscribed by the testator.(c) 2. Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made, to each of the attesting witnesses. The testator's subscription, however, need not be literally by his own hand It may be written by another person in his presence, and by his express direc- tion,(d) and the omission of such other person to add his own name, does not avoid the will.(e) (w) Rev. Code (1857), 432, Art. 34. (o) 2 Rev. Stat, of N. Y, 64, §§ 40, (x) 2 Rev. Stat. (1855), 1567, §4- 41. (y) Gornp. Stat., 1853, 400, § 9, as to (J) McGuire v. Kerr, 2 Brad/., 244. real estate. The same rale is applied to (c) Tounele v. Hall, 4 N. Y. (4 Comst.), wills of personal estate, by Laws of 1848, 140 ; affirming S. C, 5 N. Y. Leg. Obs., ch. 726 with a proviso saving nuneupa- 254; Thompson ». Quimby, 2 Bradf, tive wills. * 49 - («) Pamp. L. of 1851, 218 ; Nimrit Dig., (d) Robins v. Coryell, 27 Barb., 556; 1861 917. As to the previous statute in Campbf 11 v. Logan, 2 Bradf., 90. New Jersey, and the construction of it, (e) E- llenbeok v. Van Valkenburgh. compare Compton v. Mitton, 7 Sals/., 70 ; 5 How. Pr., 281. and Michle v. Matlaek, 2 Harr., 86. 692 ABBOTTS' FOEMS. Attestation of Wills. If the testator does not subscribe in the witnesses' presence, then the signature must be shown to them, and identified and recognized by him, and in some apt and proper manner acknowledged by him as his signature^/) 3. The testator at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed, to be his last will and testament. This declaration is called the publication of the will. It is not enough to acknowledge the signature, but he must make known to the witnesses the testamentary character of the paper, and that he intends it to have effect as his will. This declaration is not required to be in words, nor in any particular form. But he must personally make the fact of his own understanding and intention known to them at the time, by such express words or signs as could leave no doubt in their minds. (g) The declaration must be in the presence of both witnesses.(A) These acknowledgments and declarations need not be in any particular form. They may be by inquiry addressed by the attendant to the testator, and his affirmative response ; they may be made in one sentence or separately ; but it is the better practice to have them distinctly made, and so stated in the attesta- tion that the witnesses shall be distinctly conscious that the acts stated were orderly performed. 4. There shall be at least two attesting witnesses, each, of whom shall sign his name as a witness, at the end of the will, at the request of the testator. It is not necessary that the witnesses shculd subscribe in the presence of each other. It is sufficient that each witness subscribes in the presence and at the request of the testator, although they do so severally and apart as respects each other.(i) The witnesses to any will shall write opposite to their names their respective places of residence ; and every person who shall sign the testator's name to any will by his direction, shall write his own name as a witness to the will. Who- ever shall neglect to comply with either of these provisions shall forfeit fifty dollars, to be recovered by any person interested in the property devised or be- queathed who will sue for the same. Such omission shall not affect the validity of any will ; nor shall any person liable to the penalty aforesaid be excused or incapacitated on that account from testifying respecting the execution of such will. North Carolina. No last will or testament shall be good or sufficient, in law or equity, to convey or give any estate, real or personal, unless such last will shall have been written in the testator's lifetime, and signed by him, or by some other person in his presence and by his direction, and subscribed in his presence by two witnesses at least, no one of whom shall be interested in the devise or be- quest of the said estate. Or, unless such last will and testament be found among the valuable papers and effects of any deceased person, or shall have been lodged in the hands of any person for safe keeping, and the same shall be in the handwriting of such , deceased person, with his name subscribed thereto, or inserted in some part of such will ; and if such handwriting shall be proved by three credible witnesses, who verily believe such will and every (/) Lewis v. Lewis, 11 jf. T. (1 Kern.), Beers, 2 Brad/., 168; Campbell v. Logan, 220 ; affirming S. C, 13 Barb., 17. lb., 90 ;' Brown v. De Seldiug, 4 Sand/., (g) Remsen «. Brinkerhoff, 26 Wend., 10. 825 ; affirming S. C, 8 Paige, 488 ; Torry (h) Seymour «. Van Wyck, 6 N. 7. (2 v. Bowden, 15 Barb., 304; Burritt v. Seld.), 120; Tyler v. Mapes, 19 Barb., Silliman, 16 lb., 198; Nipper v. Groes- 448. beck, 22 lb., 6T0 , Choffee «. Baptist Mia- (i) Hoysradt v. Kingman, 22 Hf. T., 372 sionary Convention, 10 Paige, 85 ; Exp. ■