OInrnpU ICam ^rljnnl ICtbraty .,_ Cornell University Library KF 386.R66N6 ^ Notes on elementary law / 3 1924 018 811 426 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018811426 NOTES ON ELEMENTAEY LAW. BT WILLIAM C.^^BIKSON, PROFESSOR OF ELEMENTARY LAW IN YALE COLLE&E. New HAVEN: l^feESS OF WOGGSON &• JlOBINSON, '875- ?,^99^<^ Entered, according to Act of Congress, in the year 1875, Bt WILLIAM C. EOBINSON, In tlie office of the Librarian of Congress at Washington. Pkiktep for the Law Department of Taxe CoiXEffE; TO HENDRICK BRADLEY WRIGHT, OF Pennsylvania, in bbmembbance of his kindness as an in8tkuct0e and his fidelity as a fbeend, This Tbeatise IS Respectfully Insceibed. PREFACE This work is intended to serve three purposes: (1) To be used as notes to the lectures on Elementary Law delivered by the author to the students in the Law Department of Yale College; (2) To guide the private student in his investigation of the rules and doctrines of the common law; (3) To familiarize the student, to some extent, with the leading text-books on the principal topics of the common law. An experience of several years in the direction of legal studies has convinced the author that the progress of the student, in the different branches of the common law, is vastly facilitated by a previous examination of those branches collectively and with reference to their relations to each other. It is for this purpose that a course of lectures on Elementary Law is annually de- livered to the students of the Yale Law School at the com- mencement of their studies. The notes of these lectures, which the students have hitherto been required to take in writing and commit to memory, are here, for their grfeater convenience and to economize their time, presented in a more permanent and avail- able form. Regarding the matter in these pages chiefly as notes for the use of his students, the author has adopted a style as didactic PEBFACB. and concise as possible. Nearly every sentence is intended to be an answer to a question, and to embody some maxim, princi- ple, or definition. Illustrations, as well as explanations, have generally been omitted, the student having access to such aids in the text-books to which he is constantly referred. Conjectures and expressions of private opinion have also been scrupulously avoided, and the beaten track of authority has been followed as nearly as the author could himself discern it. If he has made any mistake therein, it is his consolation that the careful student will correct the error by an examination of the works to which the marginal references continually direct him. In the preparation of this work the author has also had in mind the wants of those students who, deprived of the advan- tages of a law-school and possibly of every other mode of instruc- tion worthy of the name, are endeavoring, in private, to acquire a knowledge of the law. Hence, in the selection and citation of authorities, he has attempted not merely to direct attention to those passages which support or illustrate the positions taken in the text, but to map out, by means of these references, a com- plete course of study on the several branches of the common law, and, as far as possible, to present those branches in their historical development as well as in their present condition. This will be especially apparent in respect to the subjects of Real Property and" Criminal Law. In the use of these notes by the private student the followinTTCTI02ir. Op Muhicipai, Law, its nature, origin, divisions, and interpretation, 1 book: I. OF PBIVATE RIGHTS. CHAPTER I. Of the rights op Personal Secuhitt, Personal LiBEETr, and Private Property, . . . ■ . 5 CHAPTER II. Of the nature and divisions of Real Property, ... .7 CHAPTER III. Of Real Estates in Real Property, .... 7 CHAPTER IV. Of Pbrsonax Estates in Rbai Property, .... n CHAPTER V. Of the Tenure of Estates in Real Property, . . . 13 CHAPTER VI. Of the time of the enjoyment of Estates in Real Property, . 1.5 CHAPTER VII. Of the Number and Connexion of the Tenants in Estates in Real Property, 17 XIV. TABLE OF CONTENTS. CHAPTER VIII. Of the Titlb to Real Estates in Real Pkopekty, . . 19 CHAPTER IX. Or Estates in Peksonai Propektt, .... . .27 CHAPTER X. Of Relative Rights, 37 BOOK II. OF PBIVATE ■WRONGS. CHAPTER I. Of Wbongs which violate the eights of Personal SscnBiTr and Peesonal Libektt, . . . 45 CHAPTER II. Of Weongs which violate the Right of Peivate Pbopebty, . . 48 CHAPTER III. Of Weongs which violate Relative Rights, . . . ,53 CHAPTER IV. Of Legal Remedies, 55 BOOK III. OP PUBLIC SIGHTS. CHAPTER I. Of the Natueb and Functions of a State, . 65 CHAPTER II. Of Subjects and theik Relation to the State, . . 69 CHAPTER III. Of the Rights of a State ovee its Subjects, 71 TABLE OF CONTEXTS. XV. CHAPTEE IV. Of the Rights of the SnB.TECT in ok against the State, . 73 BOOK IV. OF PTTBLIO 'WHO^SaS. CHAPTER I. Op the EiiEMENTS and Degrees of Crime, ... 78 CHAPTER II. Of Treason, . . 82 CHAPTER III. Of Felonies against the Persons of Indivihuai-s, . . . 84 CHAPTER IV. Of Felonies against the Property of Individuals, ... 89 CHAPTER V. Of Misdemeanors and Statute-Felonies, 97 CHAPTER VI. Of the Relation of the Criminai, Actor to the Criminal Act, . 108 CHAPTER VII. Of Criminai, Pboobdure, . . 110 Index, .... 137 NOTE. By the word State (spelled with a capital) is meant one of the States of the American Union. Spelled otherwise it refers to political societies or states in general. EREAT A. Page 8, line 16, reference 2 Bl. Comm., " 104-386," read " 104, 386." " 23, line 7, " states," read " States." " 24, line 26, " is," read " are." USTTRODUCTIODS^. Law , in its widest sense , is a rule of action , prescribed by a superior and which the inferior is bound to obey. In its techni - cal sense , it is a rule of civil conduct , prescribed by competent political authority, commandipg certain things as necessary to, and forbidding other certain things as inconsistent with, the peace and order of society. Law , in this latter sense, is of two kinds: International and Municipal . International law is that rule of civil conduct, which is prescribed by the common consent of christian nations, and regulates their intercourse With one another. Municipal law is that rule of civil conduct, which is prescribed by the supreme power in a state, and regulates the intercourse of the state with its subjects and of those subjects with each other. American municipal law is, as to its object, of two kinds ; Federal and State . Federal law is that rule of civil conduct, which is prescribed by the supreme power in the United States, and regulates, in matters of a national character, the intercourse of the federal government with the people, and of such people with each other or with citizens of foreign states. State law is that rule of civil conduct, which is prescribed by the supreme power in each individual State, and regulates, in all matters not of a national character, the intercourse of such State with its own people and of such people among themselves. American municipal law is, as to its ori gin, of two kinds : Un- written and Written. Unwritten law, (known also as customary law, or common law,) is that rule of civil conduct, which springs from the common wisdom and experience of society, in time becomes an established custom, and finally receives judicial sanction and affirmance in the decision of the courts of last re- sort. Written law is that rule of civil conduct, Avhich is pre- scribed directly, in so many words, by the supreme power of the state itself. 2 1 Bl. Coram., Int. Uh., Sec. 2. Auelin's Juris- pi-udence, Lcct. Wooleey ' s Int. Law, Int. Ch. § 5. 1 Kent Com. Parti, Lect. i. CoDBtitution ' of the U. S. 1 Kent Comm., Part II, Lect. xi. 1 Bl. Comm., Int. Ch. Sec. 3. Austin's Juris- prudence, Lcct. x£viii,xxix,xxx 1 Bl. Comm., Int. Cli.,Sec. !), 1 Abbot's tr. 8. Prac. p. 195. Wheaton m. Poters, 8 Pet. 591. 1 KentComm., Part III, Lect. xxi. Neee vs. Pac- ard, 2 Pet. 137. 1 Eoot, Pre- face. Bishojj's First Book of Law, Book II, Ch. vi, and notes. 1 Bl. Comm., Int. Ch., Sec. 8. Austin's Juris- prudence, Lect. xxviii,xxix,six 1 Bl. Comm., Int. Ch., Sec. 3. 1 Swift. Dig. p. 10. 1 Bl. Comm., Int. Ch., Sec. 2. 1 Bl. Comm., Int. Ch., Sec. 2. . 1 Bl, Comm., Int. Ch., Sec. 3. 1 Bl. Comm., Int. Ch., Sec. 3. 1 Swift Dig., p. 11, (where see numerons rules for construing statutes.) Sedgwick on Construction of Statutes, Ch. vi. The United States , as such, has ho oommop . or unwritten, law; and when its courts are called upon to administer the principles of that law, they are guided by it as it exists in the State where the cause arose. In Louisiana the Koman or Civil law is the source and depository of unwritten law. In the other States, the courts have assumed, or the legislatures or constitutions have declared, the written and unwritten law of England, as it exist- ed at the revolution, to be the common law of such States, so far as it was applicable to the situation of their people. Unwritten law is constantly developing by the recognition, as law, of customs hitherto unrecognized. That a custom may be so recognized it must be immemorial, continued, peaceable, reason- able, certain, compulsory, and consistent with other customs. • The written law of the United States consists of the Federal Constitution, the Acts of Congress and the treaties made by its authority. The written law of the individual State consists of its Constitution and its Statutes. Statutes are either public or private. Public statutes are those which either concern the government, or the public interest, or all persons, or the whole of any class of persons ; and of these the courts of the same state take judicial notice. All other statutes are private and must be pleaded and proved. Every la w consists of three parts : the declaratory, or that which specifies what is to be done and what is to be avoided ; the directory, which commands and forbids; and the remedial or vindicatory, which prescribes the mode in which a wrong shall be redi-essed or an offender punished. The. meaning of a la w is ascertained from its words. Where these are obscure, regard is to be had to its (1) context, (2) sub- ject matter, (.3) effects and consequences, (4) reason and spirit. Statutes are either declaratory or remedial of the unwritten law. When declaratory their operation is limited by th,at of the common law which they declare. When remedial they are con- strued in the light of the old law, the mischief, and the necessary remedy. Statutes which treat of things or persons of inferior rank can- not be extended by general words to those of a superior. Penal statutes are construed strictly. Statutes against frauds are construed liberally. Statutes are construed, one ps^rt by another, siq that the whole may, if possible, stand. A saving, totally retjugnant to the body of an act, is void. vatteiLawof „ , ./lo J 1 -, ^ ^ . . Nations, B. II, Common law sives way to a statute, and an old statute to ch. xrii, see. " "^ S62-810. a new one. When a repealing statute is repealed, the old statute revives. Statutes limiting the power of future legislatures, or com- manding impossible things, are void. Law protects rights and redresses wrongs. Rights, at law, are of two kinds : Private and Public. Private rights are those rights which belong to individuals, as such, and to public bodies When acting in a private capacity. Public rights are those tvhich the state possesses over its own subjects and which the subjects, in their turn, possess in, or against, the state. Wrongs, at law, are also of two kinds: Private and Public. ^3 Bi.comm., Private wrongs (known also as Torts,) are those by which the rights which belong ^ individuals as such, or to public bodies acting in a private capacity, are violated. Public wrongs (known also as Crimes,) are those by which the rights of the state over its people, or those of the people in, or against, the state, are either diminished or destroyed. Ch. i. ELEMENTARY LAW. BOOK I. Of Private Rights. Private rights are of two kinds : Absolute and Relative. Ab- solute rights are those which belong to man, as man, whether out of society or in it. Relative rights are those which belong to man, as a member of society, and standing in certain relations to other men. . Absolute rights are three : The right of Personal, Security ; The right of Personal Liberty ; The right of Private Property. Relative rights are four — growing out of these four relations: Husband and Wife ; Parent and Child ; Guardian and Ward ; Master and Servant. ■ 1 Bl. Comm., 123. IKentComm., Part IV, Lect. xxiv. 1 Bl. Comm., 130. 1 Bl. Comm., 433. 3KentComm., Part rv", Lect. sxv. CHAPTER I. The Rights op Personal Secueitt, Personal Liberty AND Private Property. The right of personal security consists in the right to the legal and uninterrupted enjoyment of life, limbs, body, health, and reputation. Life begins whenever the infant can stir in its mother's womb, and ceases at the instant of physical death. The limbs are those members which are useful in fight, and the body includes all but the limbs. In defence of life or limb a man may take life, but not in defence of his body. Contracts, made under fear of injury to life or limb, are void ; not so, when made under fear of injury to body only. 1 Bl. Comm., 129. IKent Comm,, Part IV, Lect. 1 Bl. Comm., 130. 6 ^he law protects life, limbs, and body : (1) By giving to everf man the right of self-defence ; (2) By securing general peace and order in society ; (3) By treating injuries to them as crimi- nal ofiences ; (4) By giving to the injured party compensation in damages. The law supports life, limbs, and bod y : (1) By compelling private persons, when necessary, to support those standing in certain relations to them ; (2) By making public provision for the destitute ; (3) By laws protecting trade and labor. The law protects health : (1) By giving the injured party the right to remove the cause of his injuiy ; (2) By general social regulations ; (3) By penal enactments ; (4) By affording private remedies. The law protects and vindicates reputation : (1) By presump- tion of good character ; (2) By penal enactments ; (3) By afford- ing private remedies. 1 Bi. comm., The right of personal liberty consists in the right of a man 1 jcentcomm., to move his person to whatever place his inclination may direct. without restraint, except by due course of law. Part rv, Lect. xxiv. Hurd on Ha- The law. protects this right : fl) By ffivina; a man the right beas Corpus, '^ ,.iif.T/\Ti Book I. to free himself whenever unlawfully confined ; (2) By regulating legal imprisonment with great strictness ; (3) By delivering the person, illegally confined, upon Habeas Corpus ; (4) By penal enactments ; (5) B^ affording private remedies. 1 Bi, Comm., The right of private property consists in the right of a man freely to use, etijoy, and dispose of all his own property without control or diminution, save only by the laws of the land. Property is whatever a man owns, whether visible or invisible ; 1 Bi. Comm., purchased or inherited ; possessed or expected. So sacred is this 2KentComm ''ig^^j thikt not even the government itself can take the property xx2v^' '"""'' "^^ ^"^ individual for public use without making due compensation. The law protects this right : (1) By giving to every man the right to defend his property against injury or destruction ; (2) By so ordering society that property should generally be safe ; (3) By penal enactments ; (4) By affording private remedies, in which the owner of certain kinds of property, when dispossessed of it, can recover his possession ; and in which the owner may recover damages for injury to, or dispossession of, any kind of property. 7 CHAPTER II. Of the Nature and Divisions of Real Peopeety. Property is of two kinds : Real and Personal. Real property is such as is permanent, fixed and immovable ; and is so called, because the owner thereof, when dispossessed of it, can, by an action at law, recover the real property itself. Personal property is such as is neither permanent, fixed, or immovable ; and is so called, because the owner thereof, when dispossessed of it, can recover, by an action at law, not the i-eal property itself, but damages against the person of the dispossessor. This mobility or immobility of property is legal, not physical. Real property is of two kinds : Corporeal and Incorporeal. Real property corporeal (known also as Corporeal Hereditaments,) is such as is visible and substantial. Real property incorporeal (known also as Incorporeal Hereditaments,) is such as is invisible and unsubstantial. Real property corporeal is known in law as land. Land embraces the soil with all that is peimanently affixed thereto, whether above the surface or below it. Real property incorporeal is a right issuing out of, or concerning, or annexed to, or exercisable within, corporeal property. It is of many kinds of which the following are the chief : (1) AJvowson, the right of presentation to a benefice ; (2) Tithe, the right to a tenth part of the yearly increase ; (3) Common, the right to take a profit from the land of another ; (4) Waj', the right to cross the land of another ; (5) Offices, the right to exercise some public employment ; (6) Dignities, the right to a title of honor ; (7) Franchises, the right to exercise powers belonging to the government ; (8) Corodies and Pensions, the right of support from another ; (9) Annuities, the right to a certain annual in- come from another; (10) Rents, the right to a certain yearly profit out of the lands of another. Only Ways, Franchises, and Rents are of much practical imjjortanoe in the United States. 3 Bl. Comm., 15. Will.Eeal Pr., 6. Washl). Real Pr., B. I, Oh. i, §2- a Bl. Comm., 15. Washb. Eeal Pr., B. I, Ch. 1, §§ 3-34. 3 Bl. Comm., 17. Will.Eeal Pr., 11. Washb . Real Pr., B. I, Ch. i, §37. Washb. Eeal Pr., B. I, Ch. 1. §3- 2 Bl. Comm., 111. Will.Rcal Pr., 297. Washb. Real Pr., B. II, Ch. i. Sec. i, §§ 1-2. Washb. Eas- mcuts and Ser- vimdes. CHAPTER III. Op Real Estates in Real Peopeety. Real property presents five points for consideration : (1) The estate which may be had therein ; (2) The tenure by which such 103. 8 estate may be holden ; (3) The time when such estate is to be enjoyed ; (4) The relations with other men, into which the ownership of the estate brings the owner thereof; (5) The title by which such estate may be acquired. 2 Bi. Comm., An estate in real property is such interest as the owner has Wiii.ReaiPr., therein. It is not the real property itself. ^Vashb Eeai Estates in real property are of two kinds : Real and Personal. Pr., B. I, Ch. iii, Real estate in real property is such as is permanent and without end. Personal estate in real property is such as is not permanent, and without end. An estate is permanent and without end, in contemplation of law, when the date of its termination is not de- Washb. Heal . , , ■ , , n , • r , Pi'., B. I, Chap, termmed by, or ascertainable from, or at tlie time oi, the act / 2 Bi. Comm., whioh creates it. An estate is not permanent and without «nd, "*^' when the date of its termination is determined by, or ascertain- able from, or at the time of, the act which creates it. 2 Bi. Comm. Real estates in real property are known also as frfipAolrhj being 104-386. ^Yie only estates anciently considered worthy to be held by free- Washb. Real j j j j Pr.,B. I, Cb. ii, men. Personal estates in real property are known also as chattels w'iii.EeaiPr., real: the estate being a chattel though the property be real. ^" Real estates in real property are of two kinds : Estates of in- heritance and Estates for life. An estate of inheritance (known 2 Bt. Comm. ^^^'^ ^^ ^" estate in fee,) is an estate, so created as that it may !"*• survive the original owner, and, at his death, descend to his heir- Wa8hb. Real ^ . ... . Pr. B. I. Cb. Hi, at-law. An estate for life is an estate, so created as that it must §31. ... Waebb. Real terminate with the life of the owner or of some other specified Pr., B. I, Ch. V, „„„„„„ Sec. 1, § 1. person. Estates in fee are of two kinds: E states in Fee Simple and wiii.Reai Pr., Estates in Fee Tail. An estate in fee simple is an estate granted Washb. Real ^^ ^ ™*° ^""^ '^'^ hcirs in general. An estate in fee, tail is an §§ s&o.' ^'''' "'' '^^^^^^ granted to a man and certain particular heirs. Estates 2 Bi. Comm., tail are called General, when granted to a man and the heirs of Wiii.Rcai Pi., hiis body in general: Special, when granted to a man and certain ^^' special heirs of his body: Male, when granted to a man and the male heirs of his body: Female, when granted to a man and the female heirs of his body. An estate in fee simple is the largest possible estate in lands. WiU.Eeai Pr., It includes all other estates and is the sum of all. The owner ^Vashb. Real niay freely alienate it, or he may create lesser estates out of it; S'37^51.' °''' "'' at the end of which the fee simple will still rest in him or his ^^wiiiEeaiPr., )jgj,.g_ An estate tail is also called & conditional fee. It was ttviginally an estate for the life of the donee, enlarging to a fee upon the birth of heirs capable of inheriting, and shrinking again into a life estate when the possibility of issue, able to inherit, became extinct. During its continuance the owner could use the property as freely as if his estate were a fee simple, but he could alienate it only for his own life. These estates lost their chief value with the decline of the feudal system, could be defeated by various devices, and, in this country, are of little practical importance. Estates for life are, as to their duration, of two kinds: Estates for the life of the grantee and Estates ^:>er auter vie. Estates for the life of the grantee a re such as are so granted as to exist dur- ing the life of the grantee, and to expire at his death. Estates per aider vie are such as are granted to one man during the life of another. The grantee is then called tenant joer auter vie, and - the jjei'son, for whose life they are granted, is the cestui que vie. If the cestui que vie dies before the tenant per awter vie, the estate, of course, ceases. If the tenant per auter vie dies before the cestui que vie, the estate still endures, and, formerly, might have been taken possession of, and enjoyed, by any person as a " gen- eral occupant." Later, it went to the heir-at-law, executor, grantee or devisee of the tenant ^xr auter vie as " special occu- pant." In some States it is now regarded as a chattel interest in the hands of the personal representatives of the deceased ten- ant per aider vie. Estates for life are, as to their origin, of two kinds: Conven- tional and Legal. A conventional estate for life is such as is created by an express grant from one person to another. A leg al estate for life is such as is ci-eated by operation of law. Legal estates for life are of three kinds : Estates Tail after possibility of issue extinct; Estates by Curtesy; and Estates in Dower. An estate tail after possibility of issue extinct is an estate originally granted in special tail, but which, because no heirs exist or can exist who could inherit it, is now reduced, by the operation of law, from a fee to a life estate in the present holdei*. The possibility of issue becomes thus extinct only upon the death, without living issue, of some person to whose issue the estate is confined by the grant. An estate by curtesy is the estate which a surviving husband has, by operation of law, in the real property of a deceased wife, 3 Washb. Real Pr., B. I, Ch. iv, §§ 1-5. 2 Bl. Comm., 110. Washb. Kea1 Pr., B. I, Oil. iv, §43 Washb. Real Pr., B. I, Ch. iv, §§ 17-21. Waahb. Real Pr., B. I, Ch. iv, §§80-61. 2 Bl. Comm., 120. Will.Real Pr., 17. Will.Real Pr., 20. 2 Bl. Comm., 258. Washb. Real Pr., B. I, Ch. V. §§ 20-23. 2 Bl. Comm., 120. 2 Bl. Comm., 124. a Bl. Comm., 126. 10 wiii.KeaiPr., who, during their married lifetime, was seised of an estate in fee ^"washb. Keai in such real property, and who also, during their married life- fs'iJ'''*^'''"'' time, had by him a child, born alive, and capable of inheriting Washb. Eeai her estate. The marriage must have been lawful, or, if voidable, T'r.,B.i,'ch.vi, j^Q^ voided during the life of the wife. The estate of the wife Washb Eeai '""'^^ have been a fee, either legal or equitable. She must have T'l'-^B.i, Ch.vi, i3gg,^ seised, or legally possessed, of it; and entry must have been made by her upon it, during coverture, if it were subject Washb. Real to entry. Though the child must be born alive, the duration of §§'4448.' ■^'' its life is immaterial. This estate vests in the husband imme- Washb. Eeai cliatelv upon the death of the wife, without further proceedings: Pr., B. I, Ch. vi, ■' >■ ' - i i §56. and any circumstance, which would have determined her estate Pl^^ R^t'ci^Ti! if slie were living, will determine his. If not so determined, it '^ ^*' ceases with his life, and the inheritance then goes onward as if no curtesy had existed, lal'"'' ''"'""■' An estate in dower is the estate which a surviving wife has, g,^^"'^'*"' ^''•' by operation of law, in one tliird of the real property of a de- Pi\^B*!'ch^v?i! "eased husband, who, during their married life time, was seised '^'wiisiX'^ Seal ^^ such an estate in fee, in such real property, as her children sec'ii^'*^'^'^"' could have inherited. This estate resembles that by curtesy- Washb. Real The rule as to marriage is the same. That as to seisin differs Pr., B. I, Ch. vli, . , . , ^ . , _ Sec. iii. in this; that to create an estate in dower' the husband need only have had seisin in law with right to immediate actual Washb. Real scisin. A widow has no right to take specific land as dower Sec. v. ' ' ' until the same is set out to her, and till this is done she is usu.ally entitled to support out of the est.ate. In some States the widow has dower only in the real property of which her husband was seised in fee at the time of his death. 2 Bi. comm,, Dower may be barred or prevented in several ways ; principally. Will. Eeai Pr., by jointure, or by testamentary dispositions in lieu of dower. Washb. Real A jointuro is an estate granted by tlie husband, or by some third Pr„ B. I, Ch. vii, ,. , . , . , ,. ^ ,. . ., „ Sec. It. person lor huii, to himself and his wife, for their joint lives and Washb Real . . ' j Pr.,B^ i,ch.Tiii. for the life of the survivor of them, and in lieu of dower. If this estate be created and accepted by the wife before the marriage, it will bar dower. If created after marriage, and accepted by the wife after her husband's death, it will bar dower. When a devise or bequest has been made by a deceased husband to liis wife in lieu of dower, she may elect which to take: if she take Washb. Eeai , .i -n i • i t Pr., B.i,ch. ri, under the will, dower is barred. viif l'ec!'?v, I b!' DJyorce a vi/^nilo bars estates in dower and estates by curtesy. 11 The owner of an estate for life has a right to the full LMijoy- a bi. Comm., ment and use of the property and all its profits, during his e^siate; ^'wnuteaiPr., , but, (with the exception of tenant in tail after possibility ol' issue washii. Real extinct,) has no right to so use it as to impair the value of the sw.f.'/ia;"^' "' estates which succeed his own. He may take from the land pj^bT t;"°v! such wood as he needs for his fire and for the necessary repairs ^ washb. Real of his tools, fences and buildings. He may also take minerals |cc' «' ^' *""'' ^' and ores from mines already opened. He has a right to the an- pi^^g^i^' cu ** v^ nual crops, and, if his estate determines between planting and' Sec. Hi. harvest otherwise than by his own act, his executors may gather them. The same rights vest in his under-tenants; who do not lose their crops even though the estate of the tenant for life be terminated by his voluntary act. CHAPTER IV. Of PERSOisrAL Estates iist Real Property . Personal estates in real property are four: Estates for years; sBi.Comm. 140„ ' Estates at will; Estates from year to year; Estates by sufferance. ■'4'Kentcomni., An estate for years is an estate created to begin and end at '^ wa8hb."*^Rcai certain specified periods of time. It is also called a term (from g^;; ^j ^'se'^i^' terini/iufi) on account of its predetermined duration. It is usually ""^fjl^iieaiV/' created by a contract, called a lease, and may be limited to en- 359. 301, 363. dure for a day, a year, a century, or any other fixed jjeriod. It may be created to take effect either- immediately or at some wiii.RoaiPr., future day, but the estate vests in the lessee only when he begins ^'^' to occupy the land. Although strictly a personal estate it is sometimes regarded as possessing attributes of realty. The lessee does not own the soil, but, within the limits created by his contract, he does own all the profits of it and the use that can be made of it. He has a right to take necessary wood for 2 bi. Comm;, his fuel and repairs; to gather and remove the crops whenever his estate terminates, without his own concurrence, before its specified end and between planting and harvest; to work mines already open; to erect buildings and remove them; and other- wise to employ and appropriate the current products of the land, washb. Bcai TT 1 ■ J 1 • I. 1 i * * i-T n- B. I, Ch. X, lie may also assign and convey his whole estate to others, or gee v. underlet a part thereof. 373, 37a, 12 ' This estate is practically one of the most important known to our law. 4KentComm. An estate at will is an estate granted to continue during the w. ' "'' ' will of the grantor. It may be created by express grant, or by Washb. Real , ,. . ' ^ , -, n i • i 4. :„♦.„ Pr., B. I, Ch. xi, miplioation of law ; and, generally, whenever a person is let mto Sec. 1, §§ 1, 3, 22, ^3^ ^^ i^y ^]^Q owner thereof, without the grant of a freehold inter - est or a certain term, and not under circumstances showing aa intention to create an estate from year to year, the person so let Washb. Real in has an estate at will. The estate may be determined at the Sec. i,' §§ 8-18. ' will of either party. Any acts of the lessor in assertion of his right of possession, any acts of abandonment of possession on the part of the lessee, or the death of either party, put an end to this Washb. Real estate. While it exists it is a mere nointiUa of interest, entitling Pr., B. I, Ch. XI, . ° ^'^Sv*',!'''- ,. the lessee only to the usufruct of the land. He has nothing that Washb. Real •' ° Pi-., B. I. Ch. xi, ]]e ^;xn assign, though he may underlet. He is entitled to take Sec. 1, §§ 2, fi, 7. o 7 o J Washb. Real necessary wood for his fire and repairs: and when his estate is Pr., B. I, Ch. xi, •' .... «ec. i, §§ 7, 35. determined by his lessor, without his consent, between planting and harvest, he can harvest and carry away the crops which he lias planted. Washb. Real The liability of these estates to sudden termination was long Pr., B, I, <;h. xi, r — T-. ; r— : t-—-—. -^ r-. ; rr~^ Sec. i, §§ 35-42. ago restricted by tnc adoption ot a rule, requiring that either party should g ive notice to the other of his intention to determine the estate. The time. when this notice should be given was left uncertain; in some cases it being required to be given on the rent day preceding the cessation of the estate, in other cases within a reasonable time. This rule, of course, destroyed the essential cJiaracteristic of an estate at will wherever it was applied, al- though there still may be estates so created that this rule canuot apply, and which will be therefore strictly estates at will. 4Keiiicomm. An estate from year to year is an estate so granted that the PartVI,Lect.lvi. , ! ~. ~ , "^^ , 2 Bi. Comin., law implies, from the terms ot tlie grant, an agreement that the Washb. Real estate shall cease one year from the dale of its beginning. These Pr., B. I,Ui. xi, ^ ^ — J— T —r— j— ; -, — ^^ rr=- Sec. ii, §§ 1^. estates grew out or the uncertainty ot the rule requiring notice to quit as a means of determining estates at will, and were the result of judicial legislation. They exist wherever an estate is created by a parol lease, reserving rent, payable yearly or at aliquot parts of a year, and fixing no time for the termination of the estate. Such an estate is also implied from the occupation by one of the land of another, and the payment and acceptance of rent yearly or at aliquot parts of a year, without any agree- 13 ment. This estate, once created, continues until determined by notice to quit, or by some other sufficient legal cause. If the, tenant hold, without such notice, into a second year, the law im- plies an agreement that the estate shall continue, upon the same terms as before, during that year ; and so on. The necessity of washb. Eeai notice, in order to determine this estate, binds the lessee as well gJc. u' §§ loi ia! as the lessor. This notice may be by parol, unless the agreement p,y^B''|'c(,^|f of the parties or some local statute or custom otherwise requires. Sec. u, 5§ ib-^a. It must clearly indicate when the tenancy is to cease, and must be made so as to expire at the end of the time during which the tenant may lawfully hold. At common law, this notice must be given six months before the designated end of the estate; but this rule is varied by statute in different localities. The notice, washb. Heal once given, may be revoked by mutual consent or by an act of seo. ii, 5' ii. ' ' waiver, in which case the estate continues as before. This estate, unlike the ordinary estate at will, may survive the p,.^B'\''cif if lessee, and vest in his personal representatives. It is also assign- See. ii, § 8. able. An estate by sufferance is an estate implied by law to exist in * ui- Comm.iso. ^ . '^ Kent Comm,, one who continues in wrongf ul possession of l ands af ter the estate, Pait vi, Leot. by virtue of which he obtained rightful possession, has deter- Washb. Eeai *' . , . , Pi'-. B. I. Ch. ,xii, mined. Such estates are those 01 the tenant per auter vie who See. i, §5 i-o. holds after the death of cestui que vie, of a tenant for years or at will whose possession continues after his estate has been deter- mined; of undertenants who occupy after the term of the ori- ginal tenant has expired ; of grantors who agree to deliver pos- session by a day certain and lieglect to do so. These estates rest on no privity of contract or estate between the owner and the tenant. The tenant has no right to any notice to quit, but may be expelled at any moment by the entry of the owner, and, if so expelled between planting and harvest, has no rigliL to the crops which may then be growing. CHAPTER V. Of the Tenube of Estates in Real Pboferty . Estates , as to the right of the holder thereof to their existence, are of two kinds : Absolute and Conditional . An absolute estate is an estate whose existence is independent and un- Waahb. Eeal Kinff, as lord paramount, or 01 some j;tt;.svt6 lord, upon condition Pi-;, B. I, Ch. ii, ,. J. . , . . 1 ■ ^ • ^ ■^ ^ § 11, Ch. xiv, 5. 3. or periormmg certain services or rendeiing certain tribute. 108. ' '' This mode of holding estates was called Teuurn. Under the feudal system there were various tenures, differing Pr., R I.' ch.H, in t'i« dignity of the estates held thereby and the burdens im- posed upon the tenant. With the 'decay of that system these various tenures were reduced in number, and, with one exception , have now, even in England, ceased to exist . 3 Kent Comm. In thjs country, tenure, in the feudal sense , never has been re- (38-42. liii. ' ■ cognized . There is here no lord ijaramount , no mesne lord, to Pr.. B. i,'ch. ii, whom service is to be rendered or tribute paid. All tenure is ^ ■ allodial (from ul, the whole and od, ownership), and the holder of an estate has the entire ownership thereof residing in him. Conditional estates indeed exist, and are both numerous and important; but the conditions are of contract , not of feudal ori- , gin, and characterize or qualify the existence of estates, and not the tenure by which they are held. 2 Bi. Comm., Conditions qualifyinir the existence of estates are, as to their ikentcomm. origin, of two kinds : Implied and Exin-essed. An imnlied con- Part VI, Lect. _. . T '. '. , , . ' ivii. dition is such as the Jaw annexes to the existence of certain Washb. Eeal , ,... ,.,. Pr.,B. i,uh.xiv, estates. An expressed condition is one which is stated in so ' ' ■ many words, in the grant by- wliich the estate is created. 2 Bi. Comm., Conditions tiualifying,- the existence of estates, are, as to their 4'KentComm. effect, of two kinds : Precedent and Subsequent . A condition ^ wIshb.™Elai precedent is one which must be fulfilled before an estate can vest xiv,' 55 a-s-' '^''' °^' ^° enlarged. If such a condition be impossible, or unlawful, ^Wa^hb.^ Erai jj ^^^ never be fulfilled, and the estate can never vest or be en- xiv, 5§6-8. larged. A condition subs e quent is one whose fulfillment will defeat an estate already vested. If such a condition be impossi- ble, or unlawful, the estate can never be defeated. 155. ^^' '^''™"-' Akin to a condition subsequent is a conditional limitation, i. e., Pa1f™i,*^S.' ^ qualification annexed to an estate, with the cessation of which '""washb. Eeal ^'"^ estate also ceases. It differs from a condition proper in this: ^iv', ^''dh')^^' ^^""^^ *'^® fulfilment of the condition does not defeat the estate unless the person, in whose fi^vor it is to be defea,ted, so elect • . 15 while the cessation of the qnaliincation, ipso facto, determines! the estate. Instances of conditional estates are: Estates in fee tail, (condi- 2 bi. Comm., tion precedent) : Qualified fees, estates during widowhood or *°4Ktl"t'comm. residence, (conditional limitation) : Estates in living pledge, in "^ wThb.^eli mortgage, by statnte merchant or staple and by elegit, (condi- tion subsequent.) Pr. B. I, Ch.xv. CHAPTER VI. Of the Time of the E^.toyment of Estates in Real PltOPERTY. Estates, as to the time when they are to begin to be enjoyed, a bi. Comm., are of two kinds: Estates in Possession and Estates in Expect - ancy . An estate in possession is an estate so created as to vest iPrest. onEst. in the owner thereof a present right of present enjoyment. An craiae Dig., estate in expectancy is an estate so created that the enjoyment 55 i^f^nd Title thereof is postponed until some future day. f_^3'' ^^- '» §* Estates in expectancy arc of three kinds : Estates in Reversion ; .^ -g, po^^ instates in Remainder; and Executory Interests . An estate in ^^^m\ea?'Pr reversion is that residue of his oriffhial estate which remains in a '^\f'''\„ f _ 4 Kent Comm. grantor after he has granted to another a less estate than his f?*''* ^''' ^'''^^■ own. An estate in remainder is an estate created by the same „ ^S^ij!?- R?"! '^"— — — ^ ^ _ "^ Pr., B. II, Ch. IV, grant which creates another estate .and limited to take effect See. i, ~ §5 e, 7, ^^ ... ^^^ Ch. V, and a'fter that other estate has determined. An executory interest is cu. viii. an estate created to take effect at some future time without re- ference to any precedent or intermediate estate. This classification of estates is based upon the principle that Washb. Eeai . . ■ 1- ■ 1 • • f ■ 1 .1 Pr.,B. II, Cli.lv, an estate in fee simple in every piece 01 real property always sec. i, U 2-5, resides somewhere, and tliat out of such estate all lesser estates viii, 5§i, .3. are carved. Thus if A. own a fee simple in Blackacre and grant an estate for life to B., the residue of A.'s fee simple still resides in him as a reversion. If by the same deed he grant to B. an estate for life, and to C. either the whole, or any part, of hi.s reversion, the estate granted to C. is a remainder ; and, if the remainder do not exhaust the reversionary estate, the residue of that estate in A. is a reversion still. So if, without granting any estate to B., he covenant to stand seised to the use of C. after a specified event, the whole fee simple will reside in him till that 16 evertt occurs, and then will shift into C. and remain in hira as his estate. The difference between these three estates is thus apparent. 2 Bi. Comm., To the existence of a reversion or remainder a precedent, or ^5ar- wm. Ecai Pr. ticular, estate is necessary, but not so to an executory interest: 8 Bi. Comm., while a reversion and remainder are distinguished from each ' cinise Dig., Other by the mode of their creation, the former arising by opera- TiHe xvii,ch.i, ^j^^ ^j j^^^^^ ^^^ latter, like an executory interest, by some act or Will. Real Pr., ... p ^i, ,.■ 223. agreement oi the parties. ^. C"^^'"'?. J.'S:- An estate in reversion is a present vested estate and has all Title xvii.Ch.i, — ^^— — — — ^— — 1 '' \vii R IP ^^^^ properties of the original estate, except the right of imme- ^^'' ,., T, , di.ate possession. It may be alienated by deed, or executory in- Wai-hb. Heal ^^ •' _ / ' J Pr., B. II, ch. terests may be created out of it. a Bi. Comm., Estates in remainder are of two kinds : v ested and C ontmgent . Cruise Dig., A vested r emainder is a remainder so created that from its com- ^i^.L'xvi, . 1, j^fiprigyfiigp^ to i{f5 close it is always ready to take effect in posses- Pait ''vi, "i"™.'. sion should the particular estate be determined. This can be the "\v ill. Real Pr., case only whcn the remainder is limited to a definite person in. ^wasiiii. Real being at the time of the grant. Such a remainder is not, how- Soc.ti^s 15-17!' ever, certain to result in the possession of the estate. A grant to A. for life, remainder to B. for life, creates a vested remain- der in B., yet B. may die before A., .and so never enjoy the estate. Cruise Dio- " ^^ '* ^^^ present capacity of taking effect in possession, if the pos- Titie xvi, Ch. i, session were to become vacant, .and not the certainty that the possession will become vacant before the estate limited in remain- der doti'imines," which charaetei-izes a vested remainder. Cruise Die A contingent rem.ainder is a remainder so created th.at the s'544,45!' *^''' '' particular estate may be determined before the remainder is Part^'vi,'"""™' '"Pa-'^y to fake effect. This is the case wherever the remainder is ''"will ReaiPr I'm'ted to a person not in being, or to a person not at present "^Washb Real ''■^P'^^^l'" of tnking the estate, or when it is made dependent upon J''''^?;.^i'Ch. iv, n, future and uncertain event. A grant to A. for life, remainder oGC 111, ^1- ilD 7 to B.'s eldest son, B. having no son, is a contingent remainder, for A. may die before It. has any son. So a grant to A. for life, remainder to B. in fee, if C. survive A., is a contingent remainder. Will. Real Pr., f"r A. may outlive C. If, however, before the particular estate ^wasiii). Real ("ef ^es, the person, to whom the contingent remainder is limited, Sec'.^.' fae!'"' '"' ^^e«''™es capable of t.aking it, or the event on which the remain- der depends actually happens, the contingency is extinguished and the remainder becomes a vested one. li A vested remainder is alienable by any form of conveyance which does not necessitate delivery of possession. A contingent remainder is also alienable when the contingency is one of event and not of person ; in the latter case, of course, there is no one able to convey. Executory interests arise either under the Statute of Uses or by Will. The effect of the Statute of Uses is to vest the estate in real property in the person to whose use such estate is given. Thus a grant to A. and his heirs, to the use of the grantor for life and then to the use of B., vests the estate in the grantor during his life, and, at the end thereof, shifts it from him to B., in whom it remains. By means of this statute estates may be made to com- mence infuturo without any particular or precedent estate; and estates, so created, are not liable to defeat, as are contingent re- mainders, but arise, when their time comes, of their own inherent strength. The rule against perpetuities, however, forbids the creation of estates so limited as to take effect at a day more dis- tant from the date of the grant than during a life or lives in being, and twenty-one years, (with the addition of the usual period of gestation,) after such lives have ceased. Executory interests created by will are called executory de- vises. They are governed by the same general rules as those created under the Statute of Uses. Washb. Real Pr., B. II, Ch. iv. Sec. i, § 20. WasKb. Real Pr.,B. II, Ch.iv, Sec. iii, 6 4. Will. Real Pr., 243. Will. Real Pr.. Will. Real Pr., 267, 270. Washb. Real Pr.,B. II,Cti.vii Sec. ii, § 2. 4 KentComm. Part vi, Lect. Ix. Will, Real Pr., 289. Washb. Real Pr., B.U,Ch.vii. CHAPTER VII. Of the NtTMBER AND CoNNBXIOlSr OF THE TENANTS IN E.STATES IN Reai, Property. Estates, as to the number and connexion of their tenants, are of three kinds: Estates in Severalty; Estates in Joint-Tenancy; and Estates in Common. An estate in severalt y is an estate granted to, or vested in, one person only. This is the usual form of estate. An estate in joint-tenancy is an estate granted to two or more persons jointly. An estate in common is an estate vested in one person, but the possession of which is united with that of other estates, held by other persons, in the same property. 3 2 Bl. Coram., 179. Cruise Dig,, Title xviii, Cli, i,§l. Cruise Dig,, Titlexviii,Ch,i, 5 3. 4 KentComm. PartVI,LectlxiT 2 Bl. Comm,, 191. Cruise Dig., Title XX. is 3 Bi, Coram., An estate in joint-tenancy is characterized by the four unifMH ^^''craise Dig., and the right of survivorship. The four unities are: (1) Unity ^tw"'' *'''■''' of estate; (2) Unity of title; (3) Unity of time; (4) Unity of p™ch.lStl possession. ^^wiii.EeaiPr., There is said to be unity of estate, because th«re is but one ^^- estate created, and because, whatever the number of persons to whom such estate is granted, they together constitute but one tenant. There is said to be unity of title, time and possession, because all the persons have their estate by the same act of the same grantor, enter upon its enjoyment at the same time, and possess it together as if they were but one person. All these unities a're however reducible to the one unity of estate, since every estate is essentially a unit, and presupposes unity of title, time and possession. 4Kentoomm. The right of surv iyprship is another result of this unity of Part VI, Lect. ^ ^ •' ixiv. estate, b or an estate, granted to two or more persons as one will. Real Pr., , . , , . , „ , laa. tenant, can never be without a tenant as long as either of such persons surviye. In contemplation of law, therefore, the death of one joint-tenant works no change in the estate. It still inheres in the survivors , to the exclusion of the heirs or representatives Titie™vm, ch"i', of the deceased co-tenant, and only ceases to exist when, in the $28, Ch.u, §4H. j^g^ survivor, it becomes an estate in severalty. 4Kcntcoinm. The same unity of estate leads to other rules, viz.: that occu- Sv." ^ '' ^'"'*' pation by one joint-tenant is occupation by all: thai if one pur- PrT'B!'''i,^Ch^ chases an adverse title it accrues to all, if they so elect: that one xiii, §5 11-13, ai. Qa^jj neither sue or be sued alone in respect to the joint-estate: that the estate is not subject to dower or curtesy, nor can one of tlie joint-tenants devise his share therein. washii. Real A jojnt-tcnant may, however, alienate his share of the estate . Sii, im. \\ ^ri: either to his co-tenants or to a stranger. If to a stranger, the stranger thereby becomes tenant in common w ith the other joint- tenants: if to a sole co-tenant, he becomes tenant in severalty: if to one of several co-tenants, he becomes tenant in common as to the share aliened and remains joint-tenant as to the rest. Ciuiso Di"., Estates in ioint-tena ney may be destroyed bv dest.vnvino- mtlior Title xviii Ch li £ at, * • j" 4 Kent comm! ot the unities ot estate, title or possession, by alienation to a ^*wiih ReaVpr.T Stranger, by voluntary partition, or by vesting in a sole survivor. '''aBi. Comm., Estates in common are characterized by unity of possession, "'cruise Dig., Though tliey may have the other unities of time and title, yet Title XX. they are not necessary, the community of occupation being the 19 only essential feature of the estate. The interest of the ten- 4Kentcomm. ^ . ... -I-, 1 , , . Part VI, Lect, ants IS not a ioint interest, iiacn has his own separate estate, jxiv. which he can manage as he pleases provided he does not injure isj7. his co-tenants in so doing, and which he can convey by deed or pr,, b. i, ch. will or which may descend to his heirs. From this severalty of ^"k '"^' '"' estate it results, that between tenants in common there is no sur- vivorship. This estate may be created either by grant, devise^ descent^ or the destruction of one of the unities of a ioint-tenanc v. Any estate granted to two or more persons will be considered an estate in common in each, unless it is expressly declared to be joint in all. The same rule applies to a devise. The descent of an estate to two or more persons was formerly held to create a peculiar estate in them, called coparcetiery, but in this country no distinc- w 1,1, r i tion between such estates and estates in common has been recos:- ^l-: b- i.,. ch. ° xiu, Sec. 11, § 6. nized. An .estate in common may be destroyed by the union of all the estates in common in one person, or by a partition of the property between the different tenants. While the estates continue in Washb. Koai -I -, , rr., B. I, Oh. common, the possession of one tenant is usually regarded as the xUi, sec.iii, 5§ 2, possession of all, though, if he erect buildings, or make improve- ments on the land, he cannot charge his co-tenants with any part of the expense thereof. Necessary repairs to existing buildings, however, he may make, and can claim contribution from his co- tenants on payment for the same. 7, 17, CHAPTER VIII. Op the Title to Real Estates in Real Pkopeety. Title is the means whereby an estate is acquired. A real estate in real property becomes complete in the owner ^^ ^j Comm., thereof only when be has the right of property , the right of pos- Tufefx, oh^i,' session , and actual possession . ^Vlen't comm. Title, therefore, is the means whereby the owner of such an estate Part vi, Lect. in real property acquires his right of property, his right of pos- p^'^^l'i'b^ ^^ session and his actual possession. Such titles are of two kinds ; Se'c. i,' |§ 2-4. ' Titles by Descent and Titles by Purchase . 20 2 Bl. Comm., 201. Cruise Dig., Title -xzix, Ch. ii, § 1. 3 Bl. Uomm., 202-207. Cruise Dig., Title x.tix, Ch. ii. §§5-T. 4 KentComm. Part VI, Lect. Ixv. Washb. Real Pr., B. Ill, Ch. i,Sec.ii,§§ 11.12. 2 Bl. Comm., 22T. • Cruise Dig., Title xxix., ch. iii., §§52-'54. 2 Bl. Comm., 508-240. Will., Real Pr,, 92-107. 4 Kent Comm. Part VI, Lect. Ixv, Washb. Real Pr. B. III., Ch. i„ Sec, ii, and notes, 2 Bl, Comm,241, a Bl. Comm., 144, Title by descent is that title by which the heir-at-law acquires the estate upon the death of his ancestor. Title by purchase is any other title than that by descent, whether it be by operation of law, or by act of the paities. The descent of estates is governed by rules growing out of the doctrine of consanguinity. Consanguinity is the connection or relation of persons who are descended from the same stock, or common ancestor. It is of two kinds: Lineal and Collateral. Lineal consanguinity is the relation between persons, one of whom is descended in a direct line from the other. Collateral consan- guinity is the relation between persons, who are descended from the same stock, but not one from the other. The degree of con- sanguinity between two persons is computed, either by counting from the common ancestor to that one of the two persons who is most remote from him, or by adding together the number of degrees existing between each of the two persons and the com- mon ancestor. The latter is the method usually adopted in this country. Kindred of the whole blood are they who are descended, not only from the same ancestor, but from the same pair of ances- tors. Kindred of the half blood are they who, though descended from the same ancestor, are descended from him through differ- ent marriages. Kindred of the half blood were anciently unable to inherit from each other. The seven canons of descent , as contained in Blackstone's Commentaries are no longer in force, either in this country or in England. Each of the States has its own laws of descent , sub- ject, of course, to occasional changes, and the only reliable source of information concerning them is the statute-books in which they are contained. Title bv purchase is of two kinds : Title by operation of law; and Title by act of the parties. Title by operation of law is either by operation of law alone, acting suo motu, or by operation of law, acting with reference to some precedent act of one of the parties. It is of ten kinds Title by Escheat ; Title by Accretion ; Title by Abandonment Title by Forfeiture; Title by Prescription ; Title by Possession Title by Marrijige; Title by Execution ; Title by Judicial Decree and Title by Eminent Domain. Title by escheat is the title by which the state acquires an 21 estate in the real property of such persons as die intestate and cruise Dig., without lawful heirs. Theoretically, all owners of estates in real '^4Ke™omm., property originally derive their right thereto from the state, of Efvil ^'" ^'""' whose territory that property forms a part; and, on failure of uwig/*''''' ^'' such owners, the property itself returns into the common owner- Pr^''^ nt^^Ch' ship of the state. Before the state takes actual possession, how- "iKratbomm ever, there is usually an investigation by suit, of its right to do Jj"'' ^^■' ^'''''• so, called an "inquest of office," or "office found." When a state acquires property by escheat it takes only the estate of the former owner, and holds it, or transmits it, subject to all the burdens which attended it in his hands. Title by accretion , is the title by which the owner of land ^ ^'- Comm., . ' — *' 261 . acquires an estate in other land, which has been gradually added J Kent Comm., . ^ -'. Part VI,, Lect. thereto by the operation of natural causes. Thus alhmion. or i"- •1 TTi 11 ■• •!.,,, ,., Washb. Heal soil gradually washed upon and united with the shore of the sea Pr., b. hi, cu. " ii Sec. iv. or of a river, becomes the property of the owner of the land on ' which it forms. So islands formed in unnavigable I'ivers, belonar to the owners of one or both banks, according to their situation in reference to the central line of the stream. So when a stream running between two estates gradually changes its course, the boundary line changes with it, and one proprietor loses what the other gains. But avulsion, or the sudden removal by water of large quantities of soil, and their deposition on, or annexation to, the land of another, does not confer title or change the owner- ship of the soil thus suddenly removed. And where a stream suddenly changes its course, so as to leave a body of land, be- longing to one, annexed to that of another without the former intervening current of water, the ancient boundary is not changed, but the whole stream becomes the property of the one through whose land it now flows. Title by aba ndonment is the title whereby the owner of an SKentComm., 1~. : ,, ,., " . , . , PartVI, Lect.lii. estate, subject to an incorporeal hereditament, acquires the right, WasW). Eeai without his own act, to hold his estate free from the burden of sec. v. ' ' ' such incorporeal hereditament. This title can arise only where the owner of the incorporeal hereditament does some act incon- sistent with the further existence of the same. Mere non-user, is not enough, unless continued for a period sufficiently long, (usually twenty years,) to raise a presumption of abandonment. Even then thiis presumption is of little force, and, when not aided by acts of the owner of the hereditament, can generally be ex- plained away. t Bl. Comm., 267. 4KentComni, Part VI., Lect, 3 Bl. Comm., 26.3. Cruise Dig., Titlexxxi, Ch.i. 3 Kent Comm. PartVI, Lect.lii. Wash1). Keal Pr. B. Ill, Ch. ii. Sec. iii. Cruise Dig., Title xixi,Cli.ii. Washb. Real Pr., B. Ill, Ch. ii, Sec. vii. SKentComm., Part IV, Lect. xxviii. Will. Real Pr., 20.5-219. WaBlib. Real Pr., B. I, Ch. ix. Title by forfeiture is the title by which the grantor of an es- tate upon condition subsequent, or his heirs or assigns, on fulfil- ment of such condition, again acquires an estate in the property in which such conditional estate was granted. The condition, whose fulfilment gives rise to this title, may be either express or implied. Title by prescription is the title by which the possessor of an incorporeal hereditament, after a certain period of possession, acquires an estate in such hereditament. This title rests upon the rule of law, that such continued possession raises a conclusive presumption that there has been a grant of such hereditament to the possessor thereof. The time during which such possession must have continued is usually fixed by statute. It must have been adverse, under a claim of right, exclusive, continuous, un- interrupted, and with the knowledge and acquiescence of the owner of the land, in, concerning, or annexed to, which the incor- poreal hereditament is alleged to exist. Title by possession is the title by which the possessor of land, after a certain period of possession, acquires an estate in such land. This title rests upon the theory that such continued pos- session is inconsistent with actual ownership in any one else, and upon the rule that after such a lapse of time no antagonistic ownership shall be asserted; but there is no presumption of a transfer of the estate from the former to the present owner. definite, notor- Possession, to give rise to t itle, must be actual, ions, continued, adverse, exclusive, and with an intent to claim ownership ; that is, it must be such as justifies the presumption of acquiescence, on the part of the real owner, in the assumption of ownership by him who assorts the title by possession. The time during which possession must continue is usually fixed by statute. It is not necessary that the possession, during the whole period, should be in one individual. It may be in a series of individuals, holding in privity of estate with each other or with the one who claims title by possession. Title by marriage is the title by which a husband acquires an estate in the real property of his wife, or a wife acquires an estate in the real property of her husband. The nature and extent of this estate, during the coverture, differs in the different states and is to be ascertained by the examination of their statutes. Estates in dower and by curtesy, which arise at the termination 23 6i coverture, if at all, are held by this title, the law vesting such estates in the husband or wife immediately on the death of the other party to the marriage. Title by execution is the title by which a creditor, or other 4KentComm., . . -, ^ n ■, , • n Part "VI- Lect. person, acquires an estate in such property of a debtor as is sold , ixvi. ~ -. o , ■ .■■■;■ "^ . ;: ~ T^, Waslib. Real or set on, under process ot law, in satisfaction of a debt, in all Pr., b. i, ch. xy, c , , . . , , , . , and B. Ill, Oh. ot the states the estate ot a ]udgment-debtor m real property iu. Sec. ii. may be seized and levied on in execution, and, in most of them, a judgment creates a lien on such estate without the issue or levy of an execution. The mode of levying an execution on real property differs very greatly in different states. In some the land itself is set off and deeded to the creditor by the officer levying the execution. In others the land is sold at auction by the officer and deeded by him to the party purchasing. In others the land maybe placed by the sheriff in the possession of the creditor until the rents and profits pay the debt. By this title also are lands acquired which are sold at tax sales to satisfy the duty owing to the state, or at sales under a decree enforcing a lien or an assessment. In all these cases the estate taken by the creditor or purchaser is subject to all the burdens existing upon it in the hands of the debtor, unless there be some spaoial provision of law to the contrary. Title by judicial decree is the title by which a person acquires an estate in real property as the direct result of judicial action. In some oases a Court of Equity has the power to pass an estate from one person to another without any act or voluntary ac- quiescence on the part of him from whom the estate passes. So, by the decree of a court foreclosing a mortga ge, the equitable estate of the mortgagor is divested and the whole estate vests in the foreclosing mortgagee. So also, by the decree of a court having jurisdiction in bankruptcy , the estate of the bankrupt is vested in his trustee. The estate of a guardian in the real prop- erty of his ward, or of an executor or administrator receiving power from a Court of Probate to convey the land of the intes- tate, is of substantially the same origin. In these cases, as in those of preceding titles, the estate ac- quired is only that of the former owner, with its attendant bur^ dens and liabilities. Title by eminent domain is the title by which the g overnment acquires an estate in the property of an individual when the same is necessary for public use. 24 SEentcomm. The light of eminent domain , or the right to take private xSv.^' ^'"'*' property for public use, is inherent in every government. A Pr^B.*'i!'ci?'i'i! government also has power to exercise this right in favor of cii^'«rsM.'ii! individuals or corporations engaged in prosecuting works of a ^^^bnion, Man. Quasi public nature, such as railroad, turnpike and canal com- ^'^T'K^df ^Eaii- panies. But, when property is so taken, full compensation must ways, Ch. xi. {jg made therefor to its owner, and the mode of taking it pre- scribed by law must be strictly followed. Title by act of the parties is of two kinds : Title by Grant; and Title by Devise. Title by Grant is the title by which a person acquires an estate in real property through the present, voluntary act of the pre- vious owner of such property. It is of two kinds: Title by Public Grant; and Title by Private Grant. Washb. Real Title by public grant is the title by which a person acquires iii.'sec. i. ' ' an estate in real property which had previously belonged to the government, either of the United States or of one of the indivi- dual States. The foe of all unsold lands is either in the United States, or in the State where the lands are situated; and such lands may be granted by the government to which they belong, either by spe- cial act of the legislature, or by a proceeding authorized by the general statutes. In the latter case, the transfer is usually by an iusti'ument called a Patent, signed by a person duly author- ized for that purpose, and sealed with the great seal of the state. The terms of this patent, when doubtful, is construed in favor of the government and against the grantee, except when the lands have been granted upon valuable consideration, in which case the rule is reversed. A patent, regularly issued, is conclusive evidence of title, and, when two legal patents conflict, the elder will prevail. Title by priv.ate grant is the title by which one man acquires an estate from another, during the lifetime of that other and 2 Bl. Comm., by his voluntary act. 895-298, 304-308. "^ •' Cruise Dig 1 he mode by which an individual conveys an estate to an- ii- ' ' ' Other, to take effect during the lifetime of the grantor is bv 4 Kent Comm. i i . ■ , ■ . . ' ° '- Part VI, Lect. cleed. A docd IS a writing sealed and delivered between the Will. Real Pr., parties, llie material npon winch it is written must be paroh- wasiib. Real ment Or paper. It must be made by a party able to contract iv,"sec. i. ' ■ and to a party able to be contracted with. It must be upon 25 some cobsideratlon, either good {aslove and affection), or valuable (as money or other property). The terms of the deed must be legally and orderly set forth. It must be free from any erasures and interlineations which are not explained in writing on the face of the deed itself. It must also be sealed and delivered. In some of the states, sierning by the grantor, the attestation washb. Keai „,..,, ' s a J * , V- , , J Pr, B. Ill, Ch. ot nis signature by one or more witnesses, and his acknowledg- iv, see. ii, §§ s, ment of the instrument as his deed before a magistrate, are necessary. A deed may be made by the grantor himself or by his duly washb. Real authorized agent. When the grantor is unable to read, the deed iv'se^. iffjSi^ should be read to him before its execution, though a grantor is ^^' always presumed to know the contents of his deed, and cannot avoid it, after delivery, except for fraud practiced upon him in procuring it. The estate passes by the delivery of the deed , and unless the washb. Real deed be delivered during the lifetime of the grantor it will be of iv's^. iff 55 ^-i no effect. Bat the delivery may be made either to the grantee *^' himself, or to some third person with instructions to deliver the deed to the grantee upon the fulfilment of some condition, or at some future time, or at the death of the grantor; and, when it is finally delivered to the grantee and accepted by him, the delivery is regarded by law as having taken place at the date of its de- livery to the third person by the grantor. The public recording of a deed is not essential to its validity, washb. Keai but is usually necessary to protect the grantee against the claims ix'sS. i?§§5i- of the grantor's creditors, or his subsequent bonajide purchasers ^'^' or mortgagees. Deeds, as to their parties, are of two kinds : Indentures, and ^ashb Real Deeds-Poll. An indenture is a deed executed by two or more ^'''g^' ™; S^- parties and by which they contract reciprocal obligations to- ward each other. A deed-poll is a deed executed by but one party. Deeds, as to their effect, are of two kinds: Original and De- ^ bi. Comm . rivative. An original deed is a deed which creates an estate cruise djk.. Title xxxii Ch A derivative deed is a deed which modifies an estate already iv-xi. ■' Washb. Real created. Pr.^ b. iii, ch. Original deeds are of eight kinds : Feoffment, creating a fee- simple ; Gift, creating a fee-tail ; Grant, creating an estate in in- corporeal real property; Lease, creating any estate less than that 4 , Sec. i and ii. of the grantor ; Exchange, creating mutual estates in considei'a,- tion of each other; Partition, creating estates in severalty out of estates in joint tenancy or in common ; Bargain and sale, cre- ating any freehold estate ; Covenant to stand seised to uses, also creating any freehold estate. Of these the first six were known to the common law, the last two arose under the statute of uses. Derivative deeds are of five kinds :' Release, which conveys to the present particular tenant the estate in remainder or rever- sion; Surreilder, which conveys the present particular estate to the remainder man or reversioner; Confirmation, which renders a voidable estate sure and unavoidable; Assignment, which transfers the whole of an existing estate; Defeazance, which accompanies another deed, and declares certain conditions upon which such deed is to be defeated. waehb. Eeai In the Unite d States the mode of grantins estates is by no Pr., B. Ill, Oh. — ^ , , V, Sec. iii. means uniform. Many oi the common law conve yances are practically obsolete . In some States the ancient form of a feoff- ment, or a release, are alone employed. In others, a conveyance by bargain and sale, or lease and release, is still practised. The tendency is toward great simplicity of form, and to a reduction of the number of instruments as far as consistent with the safety and certainty of estates. 2 Bi. oomm., The parts of a deed are eight : The Premises, describing the *^Wasi!h. Real parties, the consideration and the property; the Habendum, v,'^'sec.' iv. ' describing the estate granted; the Tenendum, declaring the tenure on which the estate is to be held; the Reddendum., describing the matters reserved out of the estate to the grantor; the Conditions; the Covenant of Warranty; the other Cove- nants; the Conclusion, embracing the execution, attestation and acknowledgment. Not all these parts are necessary in every deed, but, when necessary, should occupy their proper relative positions. 2 Bi. Coram., A deed is construed accordina; to the intent of the parties, so cmi'se Dip:., far as the same can be ascertained from the terms of the deed Title .xxxii,(Jh xix-xxv. Washb. Real Pr.,.B. IIT, Ch.v Sec. iv, §§21-36, xix-xxv. itself. When the terms are doubtful , it is construed in favor of Pr.,.B°iiT,ch.v, the grantee and against the grantor. A grant of a principal 37 thing carries also whatever incidentals may be necessary to its enjoyment. 2 Bi. Coram., Title bv devise is the title by which one man acquires an estate in the real property of another, after the death of that other and by his voluntary act. 27 The instrument upon which this title rests is called a Will. Ti?[e'lTOm' A will devising lands must be in writing, and signed by the *^4'^j^J^"^n, testator. In nearly all the States it must be witnessed by per- j^^j'.j"^^' ^''^• sons who subscribe their names as such witnesses in the testator's ,„!"''■ i^'^^i^''' " 186-204, , presence. In some of the States it must also be sealed. „ ^'',?'''i-„ ^^?' ^ Pr., B. Ill, Oh. The testator himself must, when the will is made, be of sufR- vi, ss 6-9, 13-15. ' ' 1 iledf . WillB, oient age, of sound and disposing mind and memory, and not Part t, ciiap. vi, =" ' re J> Sec. i, iii, iv, V. under legal disability. Any estate may be devised which could descend to the heir , TpUa^xxxT^fi' whether it be legal or equitable, or even an executory interest. ^^Vaskb Beai The estate of the devisee vests immediately on the death of ^fv^g™' '^^■ the testator, and when the will is probated it relates back to that p^ B^'iii'^ch' time. vi' 5 si- ' - A will is construed acc ording to the intent of the testator, and, Tuie^^xxxvui' to do this, courts will sometimes change the words of the will "^ washb^'^Eeai by substituting one for the other. The construction is also made F/'afl™' ''''• ^'' upon the entire will, not merely upon disjointed parts of it, and where there are two clauses repugnant to each other the latter will'control. A will may be revoked by the testator, during his lifetime, by t 1 1 1 e'^xxxvui, destroying it, by making a later will containing words of revoca- '^asiib. Eeai tion, or by his marriage and the birth of a child. The devise of vf,''&f '32^2. ^'^' specific property is also revoked if the testator alienate such p^ro ci^ii.^' property before his death. Neither a devise or a grant are of any force unless accepted p^^B '^jji ^0^^ by the grantee or devisee. rnlch."vf,'f it: 1 Kedf. WillB, Parti, Ch. ix, X. CHAPTER IX. Of Estates in Pbesonal Pkopeety. Personal property is such as is neither permanent, fixed, or 3^g§°°™™' immovable. The mobility or immobility of property is determined by legal p^^'^v'^'T™;' rules. Land, as such, is both physically and legally immovable. ^^^^£f- \^^ Obiects wholly severed from the land, such as animals, clothing, Pr., b. i,' cii. i, or money, are both physically and legally movable. But there Gibbons on are many cases where articles, in themselves movable, are so Lib. related to, or connected with, the soil as to be legally immovable; Will. Pers.Pr. Will. PerB.Pr. / 28 and there are many other oases where articles, though firmly- fixed in the soil, are legally movable. Such cases are governed by a system of rules known as "the law of Fixtures." Personal property is also called Chattels , and is of two kinds: Chattels Real and Chattels Personal. A chattel real i s a personal *• estate in real property. A chattel personal is any property whatever, except real property or some estate therein. Chattels personal are also called Chases , and are of two kinds: Choses in Possession , and Choses in Action. A chose in posses- sion is a chose of which the owner has the actual possession and enjoyment. A chose in action is a chose of which the owner has *■ the right of possession only, but not the actual possession. It is so called, because an action, or suit at law, may be necessai'y to bring it into the actual possession of its owner. 2 Bi. comm., Estates in chattels personal are of two kinds : Absolute and 389—397 Qualified. An absolute estate in chattels personal is such an estate as cannot be lost without the act or default of the owner. A qualified estate, in chattels personal is such an estate as may be lost without the act or default of the owner. Estates in chattels personal may be qualified either by the nature of the chattel itself or by the existence of other estates in the same chattel. Certain kinds of j)ersonal property are, in their very nature, incapable of absolute ownership. Such are the elements of air, light and water, and animals f'erce natures. These belong to a man while they are in his actual possession, but, in the course of nature or by their own volition, they m,ay escape from him, and when they do so his estate in them is gone. Certain other kinds of personal property are capable of absolute ownership. In these one man may have an absolute estate, which he may, at any time, assert to the exclusion of all others, while another man has, temporarily, a special estate therein liable to be defeated by the assertion of the absolute estate. Such special, or qualified, estate is that of the borrower, hirer or pledgee of a chattel personal, of a common carrier in the goods cai-ried, or of a sheriff in chattels attached or levied on in execution. Wiii.Per8.Pr. A chattel, whether real or personal, is not inheritable , and no 2 Bi Comm., estate in fee, as such, can be created therein. The absolute 398, 399. , , 2Kentcomm., ownership 01 a personal chattel is, however, analosoiis to an Part V, Lect. . „ . . ° XXXV, Sec. iii, V. estate 01 tee simple in lands, and the person having such owner- ship may grant to another an estate in such chattel, for life, for 29 years, or at will. Particular estates, with remainder following, wm.Pers.Pr., may also be created in chattels personal wherever the use of such ^^^"'^'■ chattels does not consist in their consumption. Estates in chat- tels personal may also be held in severalty, joint tenancy, or in wm.Pers.Pr., common, in the same manner, and subject to the same general *'^' rules, as in estates in real property. Title iQ (^.^ttat fis in chattels, real or personal, is of three kinds: Title by operation of law; Title by the sole act of the present owner; and Title by the joint act of the present and the former owner. Title by operation of law is of five kinds : Title by Prerogative ; Title by Forfeiture; Title by Succession; Title by Marriage; and Title by Jndicial Decree. Title by prerogative , is the title by which the government ac- , ^ b'- Comm., - rf— t B 7 ^ J o 408-42(1, quires an estate in such private personal property as may be nee- aKontComm., essary for the public use. By a right, akin to that of eminent xxxvi, sic. i. ■'. ^ , , Wanhh. Real domain, a jjovernment may take personal property wlienever Pr., b. iit. oh. wanted tor public use, upon making due compensation therefor, ii. By the right of taxation, a right also inherent in every govern- ment, imposts and duties may be levied upon its subjects, so far as may be necessary to carry on the functions of such govern- ment. Goods taken from the enemy in time of war, goods waived or scattered by a thief in his flight when no owner can be found, wrecks found at sea or on shore when no owner appears, estrays or cattle whose owner is unknown, also usually vest in the state. All such property is acquired by prerogative. Title by forfeiture is the title by which an estate in personal 420.^'*^°°""' property is acquired in consequence of some fault or crime on pan'^v'^^Le'^t' the part of its fonner owner. By this title fines and penalties for ^Addison"' 'on crime, and in some cases the implements thereof, vest in the gov- Torts, 132-1.55. ernment. Conditional estates in chattels, as in real property, may be forfeited by breach of condition, and the misuse of a chattel, by a person having a qualified estate therein, will some- times determine his estate in favor of the absolute owner. Title by succession is the title by which the personal represen- 2 bi. Comm.. tatives, or successors, of a former owner of personal property ac- ''iKantComm., quire an estate in the same. Such is the title by which the sue- xxxvii7scc.1v!' cessive members of a corporation acquire its property and fran- chises from their predecessors. In judgment of law a corporation never dies, and property, once vested in it, continues to belong 30 to it although the persons, who composed it .at the time sucli property was acquired, have ceased to be its members. When new members succeed the old, they therefore succeed to the pro- perty and corporate rights which their predecessors, as such members, obtained and enjoyed, and the title of such new mem- bers is a title by succession. By the same title also are the remaining goods and chattels of a deceased intestate vested in his personal representatives after administration on his estate and the distribution thereof. 433 515 ^°'°"' Title by marriage is the title by which a husband acquires an plrt'^'iV?°S: estate in the personal property of the wife, or by which the wife v'^ect'xxxvii' acquires an estate in the personal property of her husband. The ^Reeve^'i) m entire personal estate of the wife was formerly vested, by her R«'-g l^' 55, 80, rnarriage, in the husband. Her chosos in possession became ab- solutely and immediately his. Her choses in action became his if reduced by him to possession, or in some other way converted by him to his separate use. Her chattels real he could dispose of at his pleasure, or they might be taken for his debts. The rents and profits of her real estates were also his, as well as all the avails of her personal skill and labor. The wife, on the other hand, acquired no rights in the personal property of the husband during the coverture, except to those articles of clothing and or- nament (called her paraphernalia)^ which were purchased by him for her use. After the cessatioy of the coverture by his death, she became entitled, if he died intestate,, to succeed to a certain proportion of his personal estate, as one of his next of kin. In most of the States these rules of the common law have been greatly modified by statutes. 2 Bi. Comm., Title by judicial decree is the title by which a person acquires ^zKent comm., an estate in personal property, as the direct result of judicial xxxvii,^Secs.''Hi action. When the owner of personal property has recovered '''' "• damages in an action of trespass or trover from one who has wrongfully dispossessed him of such property, the defendant in such action becomes the o>Yner of such property by virtue of the judgment and execution against him. Damages recovered in an action of tort, and costs or penalties recovered in any form of action, are acquired by the same title. Upon the involuntarj' bankruptcy of a tradesman his personal estate is transferred to his assignee by the judicial action which determines him to be bankrupt and appoints his assignee. The administrator of the §1 estate of a deceased intestate becomes, for the time being, tlie ownei- of such decedent's personal property by virtue of the de- cree of the probate court appointing him to administer thereon, and a guardian appointed by a court derives his title to the pei*- sonal estate of his ward from the same source. Title by the sole act of the present o wner is of three kinds : Title by Occupancy; Title by Accession; and Title by Creation. Title by occupancy is the title by which a person acquires an 2 Bi. Comm., estate in such personal property as, at the time of such acquisi- aKentComm., tion, belonged to no one. The elements of light, air and water, xxxvi, see. i. animals ferce. naturce, goods abandoned and found on the sur- face of the earth, are the principal classes of property acquired by occupancy. Title by accession is the title by which the owner of personal j gj comm., property acquires an estate in such other personal property as is ''^Kentcomm., naturally or artificially produced by, or united to, his own. The ^vi ^'ec.'ii!'*' owner or hirer of animals is entitled to their progeny produced during his ownership or term. When the materials of one per- son are used in the construction of an article, by another person who furnishes the principal materials, the article constructed be- longs to the latter. If an artist paints a picture on the canvas of another, the whole belongs to the artist. In these, and all other instances, the owner of the principal article becomes the owner of the accession. Akin to accession is confusion , which occurs when one person wilfully so mingles his own goods with those of another that they cannot be distinguished from each other. In such case, if the intermixture was by consent, each has his pro rata interest therein. But, if the intermixture was not by consent, the wrong- doer loses his property and the otlier becomes entitled to the whole. Title by creation i s the title by which a person acquires an 2 Bi. comm., estate in such personal property as owes its existence or value to akentcomm., his skill and labor. The principal classes of property acquired xxxvi, s'ee. iu.' ,.., . .,,. ^'^j.^. Curtis on Pat- by this title are inventions and hterary property. An invention ents, Ch. i. is any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement on any art, machine, manufacture, or composition of matter, not before known and used. Literary property consists of the senti- ments and language of books or other writings, the original 32 designs of maps, charts, prints, cuts or engravings, and the arrangement and composition of pieces of music. Both in- ventions and literary property belong solely to the author as long as they are kept within his exclusive possession, but when circulated abroad with his consent become common property and subject to the free use of the community. For the protection and encouragement of authors, however, the law now so pro- vides that the benefits of their inventions or literary compositions may be secured to them and that the public may, at the same time, enjoy the results of their literary or inventive skill. This is done, in the case of inventions, by what is called a, 'patent, which is a grant by the state of the exclusive privilege of making, using and vending, and authorizing others to make, use and vend, an invention; and, in case of literary property, by what is called copyright, which is a grant of the exclusive right of printing, reprinting, publishing and vending the productions in which such literary property is contained. In this country both patents and copyrights are granted by the United States under the provisions of the Acts of Congress relating thereto. Title by the joint act of the present and the former owner is of three kinds : Title by Gift; Title by Testament; and Title by Contract. 9 Bi. Comm.j Title by gift is the title by which a person acquires an estate akentcomm., in personal property through the immediate, voluntary and gra- xxxviii,' ' tuitous transfer thereof to him by its former owner. Gifts are of B.I, Ch.'xv. ' two kinds; gifts inter vivos and gifts causa mortis. A gift ititer Part 11, ch. xii! vivos has no reference to the future, but goes into immediate and absolute effect. A gift causa mortis is a gift made by the donor in his last illness, or in contemplation and expectation of death, to be effective if he then dies, but, if he recovers, to be void. To both these kinds of gifts delivery is essential. If the property is subject to actual delivery, it must be so delivered. If not sub- ject to actual delivery, there must be some act equivalent to it whereby the donor parts, not only with the possession, but with the dominion, of the property. If the gift be a chose in action it must be transferred by an assignment, or some equivalent in- strument, actually executed. When a gift is once perfected, it is irrevocable, unless prejudicial to creditors, or unless the donor was under a legal incapacity or circumvented by fraud. 9 Bi. Comm., Title by testament is the title by which one person acquires 33 an estate in personal property from another, after the death of 4Kentcomm., that other, and by his voluntary act. A testament is a will op- \^m^ sec. iv"*' erating upon personal property alone. Such a will was formerly parfi,'cii^!vi', good when made by parol, in which case it was called a nuncir ""■ ' ' pative will. In later times, parol wills were discouraged, and justified only in cases of great necessity, as of a soldier in actual 2Redf. wms military service, or of a sailor while at sea. Part ii, oh. xm. The property disposed of in a testament is called a legacy , and the person to whom it is given is known as a legatee. Although given absolutely by the will such legacy is nevertheless condi- tional in its character. If the debts due by the testator exceed the amount provided by him for their payment, the legacies may be abated, in part or entirely, according to the amount required to pay the debts. If a legatee dies before the testator the legacy is lost or lapsed, and sinks into the residue of the estate. The assent of the executor is necessary to perfect the legal title of the legatee, and, where the executor unreasonably withholds such assent, he may be compelled to yield it by decree of a court of equity. Legacies are ordinarily payable one year after the de- cease of the testator. The requisites of a will of personal proper ty, as well as the mode and time of the vesting and payment of legacies, are now usually determined by statute in the different States. The rules concerning the execution and construction of a written testament are generally the same as those governing a devise. Title by contract is the title by which a person acquires an s bi. Comm., estate in personal property through the transfer thereof to him by sK:etitComm., another person for a valuable consideration. A contract is an Sxix!^' ^^'"' agreement between two or more persons, upon sufficient consid- pirfi^Preiimi'- eration, to do or not to do a particular thing. Four things are "'"'^ chapter, necessary thereto. (1) Parties able to contract; (2) A suffi- cient consideration ; (3) A subject matter to be contracted for; (4) An actual contracting by proposal on the one side and ac- ceptance on the other. Contracts mav be made by any persons who are not by law i Pars, cont., debarred therefrom. Infants, married women, and persons not irii-xii.' ' of sound mind are usually so debarred. The consideration of a contracj; must be both valuable and j p^^ p^m lawful. Any benefit arising to the party promising, or any pre- P'"'ti.B.ii,ch. judiee to the party to whom the promise is made, is a suflScient 5 34 1 ParB. Cont., Parti, B. II, Ch. 2 Pai'B. Cont. Part II, Ch. i li. 2 Bl. Comm., 446. 2KeDtComm., Part V, Lect. xxxix, Sec. iv. 1 Para. Cont., Part I, B. ni. Ch. iv-vi. consideration. Mutual promises made at the same time, at6 sufficient considerations for each other; and a subsisting legal obligation to do a thing is a sufficient consideration for a promise to do it. The subject matter of a contract may be either some estate in real property, some visible and tangible chattel, some exercise of skill and labor, some forbearance of an existing right, or any other matter beneficial to the person to whom it is to be given or for whom it is to be done. In all cases this subject matter is prop- erty, whether it be a material object or a mere right and obligation. The actual contract consists in the meeting of the minds of the parties upon the same thing in th« same sense. Contracts may be either oral or in writing. Where they are in writing and under seal they are called specialties / when not under seal they are called simple contracts. Contracts are said to be express when the mutual promises of the parties are declared, in so many words, either orally or in writing. They are implied when the law presumes the existence of such pi'omises from the circumstances of the parties. Contracts are said to be executed when the thing agreed to be done has actually been performed. They are executory when the thing to be done has not been performed. A mutual con- tract may thus be executed as to one party, and remain exe- cutory as to the other. The validity and construction of contracts is governed by the lex loci contractus, or the law of the place where the contract is made and is to be performed. If made in one State and to be performed in another, the general rule is that the law of the State, where it is ^ be performed, will govern it. When a con- tract is broken the rsmedy for such breach is governed by the lex fori, or law of the place where the suit is brought. The principal contracts , by which estates in personal property maybe acquired, are the following: Contracts of Sale; Contracts of Bailmen_t; Contracts of Agencj; Contracts of Partnership; Contracts of Insurance; Contracts of Indorsement; and Con- tracts of Guaranty or Suretyship. A contract of sjle is a contract by which the ownership of some specific existing chattel is transferred from one person to another, in consideration of some specific price or recompense in value. Whei'e this price or recompense is in money the contract 35 is a sale proper; where it is in goods it is exchange or barter. All personal property bought and sold or manufactured to order, and all loaned property, whose .use consists in its consumption and for which a like quantity of the like property is to be re- turned, are acquired by this title, A contra ct of bailment is a contract by which the possession 2 bi. comm., of some specific existing chattel is transferred from one person 2Kentcomm., ,. .., . , , ,,,,11 Part V, Leot. xi. to another in trust, in consideration that the trust shall be duly 2 Pars, cont., executed, and the chattel itself shall be restored to the owner by ch. si.' the bailee as soon as the purposes of the bailment shall be ful- filled. This contract is of five kinds: Depositum, a bailment of a chattel to be kept for the bailor and returned upon demand without a recompense; Mandatum . a bailment of a chattel to one who undertakes, without recompense, to do some act for the bailor in respect to the thing bailed; Commodatum. a bailment of a chattel, for a certain time, to be used by the bailee without paying for its use; Pignus , a bailment of a chattel by a debtor to his creditor to be kept by the creditor till the debt be dis- charged ; Ziocatio , a bailment of a chattel to one, who is to enjoy the temporary use thereof, and pay, for such use, a reasonable compensation to the bailor, or who is to expend labor or services thereon, and receive, for such labor or services, a reasonable compensation from the bailor. A contract of a gency is a contract by which one person ap- 2Kentcomm,, n ■' ' . '' . . . Part V, Lect. Doints another to act for him in the transaction of some business, xii. •^ ■ T 1 , •■ . 1 V&rg. Cont,, and bv which that other undertakes to transact such business Parti, B.i.oh. iii. properly and to render an account thereof. Agents are of two kinds: ffenerct^ agents, who are appointed to do all the business of the principal of a particular kind or at a particular place, and whose acts bind the principal so long as they are within the gen- eral scope of his authority even though they are contrary to his private instructions; and special agents, who are appointed for a particular purpose and under a limited power, and whose acts do not bind the principal when they exceed that power. The contract of agency may arise from an express agreement or it may be implied from the conduct of the parties. A contract of partnership is a contract by which two or more aKentcomm., persons unite their property or labor in some lawful business and xiiii agree to divide the profits, or bear the loss, in certain proportions, parti* b", i^%h. J3y this contract each partner acquires an interest in all the part- ^'" 36 2 Bl. Comm., 458. 3 Kent Comm., Part V, Lects, jlviii and 1. 2 Pars. Cont,, Part I, B. Ill; Ch. xvii-xix. 2 Bl. Comm., 466. 3 Kent Comm., Part V, Lect. xliv. 1 Pars. Cont, Part I, B. I, CU, XYi. 3 Kent Comm., Part V, Lect. xliv. Sec. ix. 2 Pars. Cont. , Part I, B. in, eb. vU, nership property, becomes responsible for the partnership en. gagements, and is empowered, in transactions relating to the partnership, to bind by his acts the other partners as well as himself. A^contract^f insiirance^is a contract by which one person, in consideration of a stipulated premium paid to him by another, undertakes to indemnify that other against certain injuries to his property, or to pay to him, or his legal representatives, a certain sum of money upon the occurrence of some specified event. Fire and marine insurance are contracts to indemnify the assured against loss or damage to his property from fire, or from the perils and dangers of the sea. Life and accident in- surance are contracts to pay certain sums of money upon the death or accidental injury of some particular pei'son. Besides these there are other forms of contract, resulting in the existence of annuities or endowments, which are usually classed under the general name of insurance. A contract o f indorsem ent is a contract by which the holder of a negotiable bill or note agrees with another person, to whom, at the same time, he transfers the right to the sum of money named in such bill or note, that he will himself pay that sum to such person or his assigns, in case the prior parties to the bill or note fail to pay it when it becomes due. A bill of exchange and a promissory note are both, in effect, "written promises to pay a definite sum of money after a definite period of time. Such a bill or note is negotiable when made payable " to bearer," or " to order," in the former case the rights arising under it being trans- ferred by mere delivery of the instrument itself, in the latter by its indorsement and delivery. Indorsement consists in the writ- ing, by the holder, of his name across the back of the bill or note, and from this, when followed by delivery, the law implies, (unless the contrary appears in writing in connection with the indorsement,) an agreement, on his part, with all subsequent bona fide holders of the bill or note that it shall be paid at ma- turity, provided the requisite demand be made, and notices given, by the person who shall then be the holder thereof. A contract of guaranty-' or suretyship is a contract by which one person agrees with another to pay a debt, or discharge p,n obligation, due from some third person to that other, in case such third person shall fail to pay or discharge the same. This con. 37 tract somewhat resembles that of indorsement, but it is not re- stricted, like that, to negotiable paper, nor are the rights and liabilities of the parties thereto, in all respects, the same. In addition to these contracts by which an estate in personal property may be originally acquired, there are others collateral to, or resulting from, these, by which additional though not in- dependent, rights may be obtained. Such is the contract of warranty, by which the vendor of chattels agrees with the ven- j p^^^ ^^^^ dee that the chattels sold are of agiven quality and quantity, and ^^^^ ^' ^'^• which is collateral to the contract of sale. Such also is the con- tract of debt, by which one person agrees to pay to another a * Bi. comm., certain sum of money, and which results from a contract of sale where the price is not immediately paid, from any contract of bailment whereby compensation becomes due to either party, or from any other contract the fulfillment of which on one side creates an obligation on the other to pay a definite sum of money. 1 Bl. Comm., CHAPTER X. Of Rblatiye Rights.^ Relative rights are the reciprocal rights which grow out of the four relations of husband and wife, parent and child, guardian and ward, and master and servant. , The relation of husband and wife is created by tr,a.rr).a.g i>. In 433^^5.^ the eye of the law marriage is a civil contract, and, like any other i?an''iv'''Lect.' contract, it requires parties able to contract, a sufficient consid- ^^eeve Dom. eration, a subject matter to be contracted for, and an actual con- ^gciiou'kii^Doni tracting. .. ch!l ^"' "' Any person may contract in marriage who is not debarred ParfT'^B'"!!!' therefrom by law. Persons so debarred are of four classes: (1) '-'n-^,, •I \ / DiSiiop on Those under asre, i. e. males under fourteen and females under Marriage aua o ' Divorce. twelve; (2) Those who have another lawful husband or wife living; (3) Those within certain degrees of relationship, i. e. all related lineally, and all related collaterally within the third degree; (4) Those who are not of sound mind. The mutual promises of the parties are the consideration of the CO]}trq.(!t of marriage. 38 2KentComm., Part IV, Lect. xxvii. Reeve Dom. Kel., 319-334. SchoulerDom. Eel., Part II, Ch. xvii. 3 Kent Coram., Part IV, Lect. xxviii. Reeve Dom. Rel.. .'iO, 138,1.39, 14.i-156, 107-306. SclioulerDom. Rel.. Part II, Ch. ii-xvi. 1 Para. Cont., Parti, B.I, Cll. xviii. Reeve Dom. Bel., 139, 141, The subject matter of the contract is the relationship of hus- band and wife with its entire duties and responsibilities as de- fined by law. To the actual contract no specific form is made necessary by the common law. Both parties must freely consent thereto, and must express that consent per verba de presenti, or by words which denote an actual and present acceptance of each other as husband and wife. Public policy, however, requires that some fixed mode of celebrating marriages should be observed, and the several States have, therefore, provided by statute for the form in which the contract should be made. T he relatio n o f husband an d wife can be d issolved either by death or by divorce. The death of either party puts an end to the relation, and leaves the survivor free to enter into another contract of marriage. The form of divorce known as divorce a vinculo has the same effect. Divorce a mensa et thoro is only a legal separation of the parties, leaving the relation itself intact. The methods and grounds of divorce, and its effect upon the mutual rights of property of the husband and wife, are matters generally regulated by statute. By marriage the husband and wife become one person .it 1.q.w , and, for most purposes, her legal existence and authority are merged in his. Noicontracts can be made between them with- out the intervention of trustees, and the contracts, which sub- sisted between them prior to tlie marriage, are dissolved. The wife cannot bind herself by any contract made without her hus- band's consent, nor can she sue, or be sued, separately and apart from him. The* husband is responsible for all debts due from the wife at the time of the marriage, and for all the torts and frauds committed by her during coverture. Any invasion of her right of personal security or personal liberty is an injury to him for which he is entitled to redress in a suit at law ; and her pri- vate property, as we have already seen, vests in him either ab- solutely or temporarily, according to its nature or the mode in which he deals therewith. Courts of equity, however, recognize, to some extent, the separate legal existence of the wife, and re- gard as valid the exercise by her of powers which at law she does not possess. The rights of a husband, in and over his wife, are two : Obe- dience and Service, The husband has the legal control of tRe person of his wife, and may put moderate restraints upon her liberty, if her conduct be such as to require it. If he changes his domicil it is her duty to follow him. If she elope and aban- don him without cause, he may seize upon her and compel her to return. But he has no right to chastise her or to use physical vio- lence toward her, except so far as is necessary to prevent her from doing violence to himself or others. The services of the wife, and the result thereof, also belong to the husband. The rights of the wife in and from the husband are also two : Eeeve Dom. Protection and Support. Whatever he may lawfully do in his 300.' own defense he may do, and is naturally obliged to do, in de- fense of her. It is his duty to provide her with necessaries ac- cording to her station in life, and, if he refuse to do so, she may contract for them in his name and he will be bound thereby. If he abandon her, or drive her from him, he leaves or sends his credit with her, and she may still contract debts for her neces- saries in his name. This right will be forfeited by the wife if she elope with an adulterer, or if she abandon her husband without cause, and does not repent and oflFer to return to him. But the husband is not bound to support the wife out of his family if he provide for her and treat her properly there; and, in all cases, persons supplying a wife with necessaries, without the consent of the husband, are bound to make inquiries, and, even after such inquiries, if they supply her they do it at their peril. The reciprocal rights of parent and child depend, in the first 1 gj comm instance, upon the character of the child as legitimate or illegiti- '^^Kenicomm. mate. A child is legitimate when it is born during, or within ^^'^ ^' ^^"*' the usual period of gestation after, the covertui-e of its mother, r gf^^gg^^' and is not the offspring of an adulterous intercourse. A child ^^^(jhoaier Dom is illegitimate when it is not born during, or within a competent g^'-. p.*''' ™' time after, the coverture of its mother, or is born during such coverture as the result of an adulterous intercourse. The riffhts of pai-ents in and over their legi timate children are ^eeve Dom. = '^ '^ — " Eel., 420. 42a, two: Obedience and Services. The father has control of the per- 43i. . Schouler Dom. son of his legitimate mmor child, and may compel its obedience Eel., Part in, by any reasonable exercise of force, but has no right to abuse it or to inflict any permanent injury upon it. The same rule ap- plies to schoolmasters and all those who stand in loco parentis. The father is also entitled to the services of his legitimate minor child and to all the results thereof, and such results are subject i6 to tiie debts of the father like any other portion of his estaW: But a father may relinquish to his child the right to such services, after which they become the property of the child even as against the creditors of the father. SchouierDora. The rights of legitimate children in and from their parents ch.ii. "^ ' are also two: Protection and Support. A parent is the natural guardian of the person of his child. As such it is his duty to protect it from external injury, and, in its defence, he may law- fully do anything that he might do in defence of himself. He is also bound to support his minor child and provide it with nec- essaries suitable to his own rank and condition in life. In these necessaries are included not merely shelter, food, and clothing, but medical attendance to the child when sick, and instruction in such branches of learning as are deemed essential for children of the same station. If the father fail to supply these necessaries to his children living under his protection, or if by his cruelty he drive his children from him, a third person may supply them and charge the father with the amount. In this case, however, as in that of a wife, the third person is bound to make due inquiry, and even after such inquiry, if he supplies the child, will do so at his peril. After the death of the father, the mother has control of the persons of the minor children to the same extent as the father would have done had he been living. She is not, however, en- titled to the scrvioos of the children nor usually under a legal obligation to support them. The rights of an illegitimate child in and fi'om its parents are that of support only. An illegitimate child is said to be nullius filius, or the son of nobody. At common law he has no inherit- able blood, and no name until, by reputation, he acquires one of his own. Both the mother and the putative father are liable for the support of such a child so far .as may be necessary to keep it from becoming a public burden, and this liability may be en- forced against the father, either at the suit of the mother, or of the town or parish upon which the child has been thrown for support. The reciprocal rights of parents and children generally cease E^*«8 «i""' ^° ®^'** ^'^ ''^® !H'''ival of tlie children at tlie age of twenty-one years. Yet, if a child should,'- after that time, become a pauper and chargeable to the public, the parents would again be liable 41 for its support, and the liability of an adult child, in case its parents become paupers and chargeable, is the same. The relation of guardian and ward is of legal origin, and is i bi. Comm., intended partly to supply the place of, and partly to supplement, aKentComm., that of parent and child. A guardian is one upon whom the xxx. care of the person or estate of a minor child has been conferred Eel., 449. ■,, oi- i-iT* iiT 7 SchoulerDom. by law. Such minor child is called a ward. Eei., Part iv Ch i ' Guardians are of two kinds : Guardians by nature; and Guar- 1 Pare, cont., J- V • . . Part I, B. I, Ch! dians by appointment. ix. A guardian by nature has the care both of the person and of Reeve Dom. the estate of the ward. The father of a child, and after his 465.' death its mother, is its guardian by nature. Their control over the estate of the child and, in some cases, that of the mother over its person, may be determined by the act of a court of equity or a probate court. Guardians by appointment are such as are appointed by some Reeve Dotn. T ■ T^ , PI P Kel., 460^63. competent authority to take charse 01 the person or estate 01 a SchoulerDom. . ... Rel Part IV minor child. In some States a father may, by his will, appoint ch.'ii. such a guardian for his children, who is then called a testament- ary guardian. Courts of probate and courts of equity also have the power to appoint guardians; and every court, before which civil or criminal proceedings against an infant, who has no parent suii^l&io. "^ or guardian, may be pending, is bound to appoint a guardian ad litem over him to counsel and protect him in matters pertain- ing to the suit. All guardians by appointment are under the con- trol of the court by which they were appointed or which has jurisdiction over the estates of wards, and may at any time be called to account by such court or removed by it for cause. The reci procal rights of guardian and ward depend upon the schonler Dom. e-, V T^ \ T- ^..1, 7 Eel- Part IV, nature 01 the guardianship. A guardian 01 the person has a ch. iv, v. right to the obedience of the ward but not to its services, and owes it the duty of protection but not of support. A guardian of the estate is bound to support and educate the ward out of the estate in a manner suited to its station in life, but is not bound to protect it or entitled to its obedience or services. His general duty is to manage the property of the ward with reason- able care and skill, and to account for and restore such prop- erty to the ward when his guardianship has ceased. This management of the ward's estate, though left largely to -^^X^^^^' the discretion of the guardian, is in some respects strictly regu- E^e'i'^°'p|rt^w' Ch.'Vl-iXi ' o 43 Reeve Dom. Eel., 470. Schouler Dom. Eel., Part IV, Ch. iii. 1 Bl. Coram., 428-433. 2KentComra., Part IV, Lect. ssxii, aud Part V, Lect. xli. Reeve Dom. Eol.,482. Schouler Dom. Kel, Part VI, Ch. i. 2 Pars. Cont.. Part I, B. Ill, Ch. ix. Reeve Dom,, Eel., 484-402. 2 Pars. Cont., Pact I, B. Ill, Ch. viii, Sec. ii. lated by law. A guardian has power to lease the real propert y of the ward and receive the rents and profits thereof, but no power to sell it unless directed so to do by an order of court. He may sell the personal property without an order of court. He is not permitted to reap any benefit to himself from the ward's estate other than is allowed him by the court as a re- muneration for his services. If he make an advantageous specu- lation with the ward's money, or settle a debt due from the estate on beneficial terms, the advantage accrues to the ward. If he suffers any waste or damage to the real property or is guilty of negligence in regard to the personal property, he must make good the loss resulting therefrom. If he mingles the ward's money with his own, or lets it lie idle without cause, or pur- chases land therewith, he will be liable to pay over the same to the ward with interest when his guardianship determines. The relation of guardian and ward ceases on the arrival of the ward at the age of twenty-one years. The guardianship of a female ward ceases as to both her person and estate when she marries an adult, and as to her person when she marries a minor. The guardianship of a male wai-d continues after his marriage as to his estate, but not as to his person. The relation of master and servant is practically the most im- portant known to our law. A master is one who has a legal right of authority over another by virtue of a contract subsisting between them. A servant is one who, by virtue of such contract, is subjected to authority. Servants are of two kinds : Aj)prentices; and Hired Servants. An apprentice is one who is bound out to a master to learn some art or trade. When the person so bound out is an infant, the contract with the master must generally be made by the parent or guardian with the consent of the infant, though there are cases in which an infant can bind himself. An apprenticeship can be created only by a deed to which the infant is a party, and ceases at the death of the master or on the arrival of the appren- tice at the age mentioned in the deed. It may also be deter- mined by the decree of a competent court, or by a deed in whijch the parties mutually release each other. During the continuance of the apprenticeship the master has the control of the person of the apprentice, and may command his time and labor to any extent within the terms of the contract. All results of the ser* Ch. viii, Sec. i. Reeve Dora. 43 vices rendered by the apprentice, whether with or without the master's consent, also belong to the master. But the master cannot assign to another his rights over the apprentice, nor send him abroad, nor employ him in labor not contemplated by the contract. The apprentice, on his part, has a right to be sup- ported and instructed by his master in the manner specified in the deed. Although the master cannot assign his rights to ano- ther, yet the contract as a whole may be assigned by consent of all parties, and a new master thus be substituted for the old. A hired servant is one who enters into the service of another under a contract to render certain specific services in considera- tion of the payment of certain wages. The master has a right to the obedience of such servant in all Eeeve Dom., matters within the scope of the contract, and may have redress schmiierDom. at law against the servant for any negligence or misfeasance of ch!!!.^"'' ^^' which he may be guilty. Such servant has a right to continue Pifrt'1:'*B^°iii' in the employment of the master during the time for which he was hired and to receive the wages or recompense which the contract of service ^jrovides. The master is bound by the acts of his hired servant within the scope of his authority and is liable f^VsA '^^~®^^' for the injuries committed by hitn when iu pursuit of the mas- Ee'i'"'"p'^' P vi' ler's business. The relation between the master and the hired *-"ii''- „ ^ 1 Pars. Cont, servant may be terminated by the death of the master, by mu- ^^'t i- ^- !> ^h, tual consent, or by the completion of the term of service. Hired servants are of three kinds: Menials; Day -laborers; and „ Reeve Dom. '^ — ' "^ ' Rel., 493. Agents. ' A menial is one who dwells in the household of the master and is employed about domestic concerns, under a con- tract, express or implied, to continue in service for a certain time. A day -laborer is one who is hired upon occasion to continue in service while occasion serves. An agent is one who is emj)loyed to transact business for, and in the stead of, another. Agents may be divided into four classes : Agents commonly i Pars. Cont., so called; Factors and Brokers; Auctioneers; and Attorneys, iii."^ ' ' ' Agents commonly so called include clerks, salesmen, and others, whose services are devoted for the time being to the business of one master. These are governed by the ordinary rules which control the relation of master and servant. A factor or broker is one who is employed in the management '■^^^l^^_^™- of mercantile afiairs, and usually acts for a number of persons at „i ff ?; cont the same time. He is bound entirely by his instructions and is iv. 44 Reeve Dom. Eel^500. 1 Pars. Cont., Part I, B. Ill, Ch. ii. Reeve Dom. Rel., 601-5»7. 1 Pars. Cont., Part I, B. I. Ch. vi. liable for any negligence, want of punctuality, breach of orders or fraud. He has a lien on the goods of his principal for his commission, but cannot pawn them so as to change the property. An auctioneer is one who is employed to sell the goods of another to the highest bidder. He is the agent of both vendor and vendee. He is liable to the vendor for any negligence in the discharge of his duty and for any credit he gives to the vendee. When he does not disclose the name of the vendor he is liable to the vendee as if he were himself the vendor. He has a right to charge a commission for his services and has a lien on the goods therefor. An attorne y is one who is appointed to do a thing in the name of another. Attorneys are of two kinds: Attorneys in fact; and Attorneys at law. An attorney in fact is one who is appointed by some special act for some special purpose. Any person of suiBcient under- standing may be such an attorney. The mode of appointment is usually by letter or jjower of attorney, which must be under seal when the attorney is to execute a covenant or deed. Such an attorney is bound to act with due diligence, and at the conclu- sion of the business to account to the principal. An attorney at law is a sworn officer of a court of justice, who is employed by a party in a cause to manage the same for him. The authority of an attorney extends to all matters necessary to the progress and determination of the cause, but he cannot re- lease damages or settle the points in controversy without his client's consent. His duty is to be true to the court and his client, to manage the cause of his client with care, skill, and integrity, to preserve his client's secrets, and to keep his client informed of the state of his business. He has a right to reasonable compen- sation for his services, and, to secure this, generally has a lien upon such papers of his client as are in his hands as well as on the judgment and costs which he may obtain, BOOK II. Of Private Wkongs. A private wron g, or tort, consists in the wrongful act or ch.i™'i-3,°Ch.' omission {injuria) of one person resulting in actual or legal "''j^dm'aon^^'on damage (damnum) to another. Such wrong may be committed 22"43" '^''' ^^' in three ways: (1) By nonfeasance, or the not-doing of that p/ac*^*^^'' ^^''' which the non-doer was under a legal obligation to do; (2) By misfeasance, or the doing' in an improper manner of that which the doer was either bound to do or had a right to do; (3) By malfeasance, or the doing of that which the doer had no right to' do. Private wrongs are of two kinds: Wrongs which violate abso- lute rights^ and Wrongs which violate relative rights. The wrongs which violate absolute rights are those which violate the rights of personal security, personal liberty and private property. The wrongs which violate relative rights are those which violate the rights which the superior in each of the four relations of husband and wife, parent and child, guardian and ward, and master and servant, has in the inferior. CHAPTER I. Of Weongs which Violate the Rights of Peesonal Secueity and Peesonal Liberty. The wrongs which violate the right'of personal security are those by which a man is disturbed in the lawful enjoyment of his life, limbs, body, health, or reputation. Wrongs by which a man is disturbed in the lawful enjoyment 3 bi. comm,, of his life, limbs, and body, are of two kinds: Threats; and i Hiii Torts, Violence. A threat is the manifestation by one person of an Addison on , CI , -c Torts, 166-186, latent to do actual violeace to another, buch raamfesta- ^u-m, 46 tion may be in two ways: (1) By words, or menaces; and (2) By acts, or assaults. Menaces arc torts whenever they cause acttial loss or damage to the person menaced. Assaults are al- ways torts, damage from them being implied by law. Violence is any wrongful act of one person whereby either he or his instrument of wrong-doing is brought into contact with the limbs or body of another person. From such wrongful con- tact the law always implies damage. When such contact pro- duces either no actual damage, or but slight damage, it is called a battery. When it results in serious injury it is called a wounding. When it causes the loss of a limb it is called a mayhem. The wrong, by which a man is disturbed in the lawful enjoy- ment of his health, is Nuisance, jvadisonon Nuisance, as a wrong against personal security, is any act or 83-81. ' ' omission of one person, not amounting to violence, by which another is unlawfully annoyed or rendered uncomfortable. The production of offensive noises, the exposure and sale of unwhole- some provisions, the leaving unguarded of wells, mining shafts, or cellars, and the keeping of ferocious animals, are instances of nuisance. 3 Bi. Comm., The wrongs which disturb a man in the lawful enjoyment of ''^I'^Hiu Torts, his reputation are three: Libel; Slander; and Malicious Prose- Ch. vii-xvi. .- Addison on CUtlon. sia-m ^^'^'^' A libel is the wilful and malicious publication, in a permanent te^md Slander' and visible form, of some matter tending to injure the reputation smnderand''LS oi another. Anything which tends to disgrace or degrade a ^^^- person or to render him ridiculous is libellous matter. If it be expressed either by printing, writing, signs, effigies or pictures, it is libellous in form. Sending or exhibiting such libellous mat- ter to any third person, or printing it in a book, newspaper, or handbill which is intended for general circulation, is a sufficient publication. Malice is presumed from the fact of publication, but this presumption may be rebutted by showing that the pub- lisher acted in good faith and upon lawful occasion. All per- sons concerned in the publication ar^e pai'ticipators in the wrong. Slander is the wilful and malicious publication, by spoken words, of some matter tending to injure the reputation of ano- ther. Slanderous words are of two kinds: Words from which the law implies damage, called words actionable per sey and 47 Words from whicli the law does not imply damage, called words not actionable per se. Words actionable per se are of four kinds : (1) Words which charge a crime; (2) Words which impute an infectious disease; (3) Words derogatory to a person in his trade or profession; (4) Words derogatory to a person in his official character. Words not actionable per se become actionable when they are maliciously spoken and produce actual damage. Malice is implied by law from the utterance of the words, Unless the circumstances of the speaking are such as to show that the speaker did not intend to attack the reputation of the person spoken of. This presumption of malice may be rebutted by proof that the occasion justified the speaking or that the words themselves were true. Malicious prosecution consists in the malicious preferment of a groundless criminal charge Against another, without probable cause, and to his actual damage. The falsehood of a criminal charge is established by the determination of criminal proceed- ings in favor of the accused, either by a verdict of acquittal or by the voluntary act of the public prosecutor. Probable cause is the existence of such facts and circumstances as would lead a reasonable and prudent ma.tt to believe in the guilt of the ac- cused. Malice may be presumed from the want of probable cause, but the presumption may be rebutted by showing that the accuser acted in good faith and in the reasonable belief that the charge was true. Actual damage to person, property or reputa- tion must result from the preferment of the charge, for the law does not imply damage either from its malice, falsehood or want of probable cause. The preferment of a true charge, however malicious, is no wrong. The wrong by which the right of personal liberty is violated is that of False Imprisonment. False imprisonment is the unlawful detention of the person of a Bi. Comm., another. Every confinement or restraint of the person of ano- i' Hill Torts, ther, in anyplace, in any manner, and for any period of time what- Aadisonon Torts 222-235 ever, if unlawful, is a false imprisonment. Such confinement or restraint is unlawful in every case where it is not expressly authorized by law, and, even where so authorized, it is unlawful unless it be in the mode, in the place, and at the time, prescribed by law. All persons voluntarily aiding and assisting in a false imprisonment are responsible for the wrong committed thereby. 48 CHAPTER II. (Dp Wrongs which Violate the Right op PeivatE Peoperty. Wrongs wliich violate the right of private property are those whereby the owner of such property is disturbed in the lawful use, enjoyment or disj)osal thereof. The wrongs whereby a man is disturbed in the lawful use, enjoyment and disposal of his estates in real property ^re of two kinds: (1) Those which involve ouster or dispossession; ('2) Those which destroy or decrease the value of the estate without disturbing the possession. The wrongs involving dispossession are also of two kinds : (1) 161-174. °"™'' Those which consist in the entering of ope person ijjto lands already in the lawful occupation of another and the excluding that other from the enjoyment of the same; (2) Those which consist in the exclusion from the possession of lands of a person who has the right of enjoyment but has never had the actual enjoyment thereof. Bac. Abr. tit. The former of these wrongs is called disseisin. Disseisin is Disseisin. ......,,, . i 4KentComin., the privation of seisin. It takes the possession of the estate from Part VI, Lect. ^ ; ; . . , ™ . . , ixvii.Sec.v, §1. one man and places it in another, lo constitute it there must Washb. Real , , ' , i , , Pr., B. Ill, Oh. not only be an entrj' upon lands, but tbe entry must be open, 11, Sec. vii, 5§-i Tici 1.1. -IT ■, I 6-14. adverse, and unlawlul, and with intent to exclude, and actual exclusion of, the lawful owner. It may be committed either by a stranger against the tenant or by one of several tenants in com- mon against his co-tenants. By it the disseisor acquires a right to the land as against all persons except the lawful owner, and, if his disseisin continue for a sufficient period, he gains a title by possession. The wrongs which consist in the exclusion from possession of a lawful owner who never had possession are of four kinds: Abate- ment; Intrusion; Discontinuance; and Deforcement. Abatement is the unlawful entry of a stranger into lands held in fee, after the death of the tenant in fee and before the entry of the hoir or devisee. Intrusion is the unl.awful entry of a stranger into lands held in remainder or reversion, after the determination of the particu- lar estate and before the entry of the remainder-man or rever- sioner. 3fB]. Comm., 4& Discontinuance is the occupation of lands held in fee-tail, aftei- the death of a tenant-in-tail, by a person to whom such tenant- in-tail has granted an estate for a longer period than during the life of such tenant-in-tail. Deforcement is any exclusion, from the possession of lands, of a lawful owner never in possession, otherwise than by Abatement, Intrusion, and Discontinuance. Withholding her dower from a widow, the retention of possession by a grantor or by a tenant upon condition subsequent after the condition is fulfilled, are in- stances of deforcement. The wrongs which destroy or decrease the value of the estate without disturbing the possession are five: Trespass; Nuisance; Waste; Subtraction; and Disturbance. Trespass is the unlawful entry of one person into the lands of 208-215. ~, ■ ^ ,.,.•'„ ,f , , 1 Hill Torts, another, trespass to land is usually called trespass quare riau- Ch. xviii, ^ 5, sum fregit, every such trespass being, in the eye of the law, a 's'mii 'tohs, forcible breaking into the enclosure of another. Any entry, how- 2. 6, I8-27, a.ni ever slight, and whether resulting in actual damage or not, if it 9, is^u^' ' be unlawful, is a trespass, and from it the law implies damage. Torts, 110-128°° Such entry is unlawful unless made by consent of the person in pr., "1. i, cil. possession of the land, or in pursuance of some legal right or ^'"' ^™-"''8^' privilege. Trespass may be committed either by the personal entry of the trespasser himself, or by that of his servants acting under his orders, or by that of his cattle. resulting from his act or neglect. It may be committed by a stranger against the tenant, or by one tenant in common against his co-tenants, or by a land- lord against his own tenant. It can be committed only against a person who is in actual possession of the land, or, if there be no adverse possession, against one who has the right of immediate possession. A person, whose original entry was by license of the possessor or by authority of law, becomes a trespasser ah initio if he abuses such license or authority. A nuisance is any act or omission of one person, not amounting 3 Bi. Comm., to a trespass, whereby another is disturbed in the enjoyment of 1 mil Torts, his lands, or of incorporeal hereditaments annexed thereto. The a Hill ^Torts, methods by which land may be subjected to this injury are al- A^'ison"™ most innumerable. The erection of adjacent buildings over- hanging and discharging water upon it, the obstruction of an- cient lights or watercourses, the excavation of adjoining and sup- porting lands, the removal of party w'alls, the production or main- 1 Torts, 48-98. 50 tenance of injurious or offensive substances in proximity theretOj are instances of such nuisance. Nuisances to incorporeal here- ditaments annexed to land consist in any act or omission of another which renders them less useful to the owner of the laud. The obstruction of a way or common, the erection and main- tenance of rival ferries or markets, are instances of such nui- sance. Every continuance of a nuisance is itself a wrong, and a person omitting to remove a nuisance, which he did not create but over which he has control, is a wrong-doer, and responsible for the injury occasioned thereby. 3 Bi. Comm., Waste is any act or omission of the tenant of a particular es- 381-284. . •' . \ 3 Bi. Comm., t^te bv which the estate of the reversioner or remainder man is 223—235. ~ 2 mil Torts, diminished in value. It is of two kinds: Voluntary and Per- ch, xxvii. -,-r , -1 .w 1 CI Washb. Eeai missive. V oluntarv waste is the wiliuL act or the tenant perma- Pr. B. I, Ch. V, , , . / -n • ■ . • .i, i- ■. Sec. iT. nently damaging the property. Jf ermissive waste is the negligent omission of the tenant to repair and preserve the property. Cut- ting down timber trees, destroying or removing buildings, open- ing new mines or quarries, are instances of voluntary waste. Suffering buildings or fences to become ruinous, or to be des- troyed by fire for want of care, are instances of permissive waste. Waste may be committed by tenant for life or for years against the owner of the fee, but not by tenant in fee-simple against his heir or by tenant in fee-tail against the next donee, each of these latter tenants being owners, for the time being, of the entire in- heritance. Subtraction i.s the withholding by the tenant of some rent or service wliich is due to the lord by virtue of the tenure whereby the tenant holds the land. Disturbance is any act of one person by which another is dis- turbed in the enjoyment of an incorporeal hereditament. If the incorporeal hereditament is annexed to an estate in lands such disturbance is also a nuisance. A common is said to be disturbed where a person, who has no right to the common, pastures his cattle therein, or where a person, who has such a right, puts more cattle therein than he ought, or where the common itself is wrongfully enclosed so that it cannot be used by the commoners. A franchise is disturbed by any act of another which diminishes its profits. Tenure is disturbed by any fraud or threat which induces a tenant to abandon his land. A way is disturbed by obstructing it. Subti'action and Disturbance are wrongs practically but little S Bl. Coram. 3 Bl. Comm. 836. 51 known in this country: the former being here substantially a breach of contract, and the latter being usually classetl with and treated under the head of nuisance. The wi'ongs whereby a man is disturbed in the lawful use, en- joyment and disposal of his choses in possession are of two kinds: (1) Those whi(!h involve dispossession; (2) Those which destroy or decrease the value of the chose without disturbing the posses- sion. The wrongs involving dispossession are two: Asportation; and Detention. Asportation is the unlawful taking of a chose in possession out of the possession of another. It may be committed either by the removal and destruction of the chose or by its removal without destruction. It may be committed against any one who has the lawful possession of the chose, and by any one, even the owner, who has not the right of immediate possession. Detention is the unlawful keeping of a chose in possession out of the possession of another. Every asportation includes a de- tention, but detention may exist where the original taking was lawful. This injury may be committed by any person, even the owner of such chose, and against any person who has a right to its immediate possession. Asportation and Detention are sometimes classed together un- der the name of conversion, which is any wrongful usurpation of dominion over the personal property of another, whether by an original wrongful removal, by a subsequent wrongful detention, or by an appropi'iation of the property to a use not consented to by the lawful owner. The wrongs which destroy or decrease the value of a chose in possession without disturbing the possession are of two kinds: (1) Those in which the destruction or decrease of value results directly from the wrongful act of another; (2) Those in which such destruction or decrease results indirectly or consequentially from the wrongful act or omission of anotlier. The particular wrongs which are embraced in these two classes are almost without number, and generally are without specific names. To the former class belong all injuries resulting from the. wrongful application of any degree of force to the object in- jured. To the latter belong all injuries resulting from negligence, or from secondary causes which have been set in operation by a force, wrengfuUy pjcerpised^ but; not applied to the object injured. 3 Bl. Comm., 144, 151. 2 Hill Torts, Ch. xxiv, XXV. Addison oUv Torts, 138-165. 3 Bl. Comm., 153. 1 Hill Torts, Ch.xvii, § 1&-20. a Hill Torts, Cli. xxiii, xxiv. Addison on Torts, 131. 3 Bi. Comm., The wrongs by which a man it disturbed in the lawful use, en- i' Hill Torts, joyment, and disposal of his choses in action, are known as breaches *^ Addison on of contract. All choses in action arise from or are founded in Torts, n-82, contract, and the fuliillment of such contract is the reduction of such choses into the possession of their owner. This is as strictly true in contracts to render services, or to forbear a right, as in contracts to deliver goods. When the goods are delivered, when the right is forborne, when the services are rendered, the chose or property which during the pendency of the contract was in ac- tion becomes a chose in possession, and is as fully possessed and enjoyed by its owner as in the nature of things it can ever be. The non-fulfillnient or breach of a contract is thus the wrongful retention in action of a chose which should be vested in posses- sion, and contains all the elements of a private wrong. Breaches of contract are as numerous in kind as the contracts which may be violated thereby. Any contract is broken by the failure of either party to do or to refrain from doing the thing which he agreed to do or not do, in the manner, time, and place in which it was agreed to be done or not done. Such failure is itself in the eye of the law a wrongful act unless excused or jus- tified by the conduct of the other party, and from such wrongful act the law implies dam'age. 164 ™' *^°™°'-' The law presumes that the parties to every contract deal fairly Oh ?''' Torts, j^jj^ honestly with each other, and authorizes each of the parties Ch Svi '''™'^' ^° assume such fairness and honesty on the part of the other. Trtsss'swMn Whenever, therefore, one of the parties wilfully deceives and iPars. Cont., thereby damages the other, a wrong is committed, additional to, Part n. Oh. in, j o ' s j j Sec. xii. and distinct from, a breach of that contract in which such fair- ness was presumed. This wrong is called fraud, and consists in any false representation, by word or act, made knowingly by one party to a contract with intent to mislead the other party to such contract in some matter connected therewith, and resulting in actual damage to such other party. 3 Bi. Comm., Where two or more persons conspire together to do an act in 2 Hill Torts, violation of either absolute or relative rights, and do such act in 16-19. ' pursuance of such conspiracy to the damage of the party con- Torts, 240. "" spired against, such conspiracy itself becomes a wrong additional to, and independent of, the particular injuiy sustained by the unlawful actj anii renders all parties tp such conspiracy liable therefor, f 6a CHAPTER III. Of Wbongs which Violate Relative Rights, Wrongs which violate relative rightB are such acts or omissions jg| B|^ Cotnm,, of persons, outside of a relation, as disturb the superior in such relation in the enjoyment of those rights which, by virtue of that relation, he has in the inferior. The wrongs, by which the parties to a relation may violate the reciprocal rights of each other, are included in the wrongs against absolute rights. Thus if one party to a relation abuse, or unlawfully confine, the other, it is a wrong against the right of personal security or personal liberty, and, in the eye of the law, is an injury of the same nature as if committed against a person outside of such relation. So if one party to a relation withhold from the other some duty or service, which, by virtue of such relation, should be rendered to that other, the law, so far as it takes notice of such withholding, regards it as a breach of con- tract and a violation of the right of private property The wrongs which violate relative, as distinguished from absolute, rights, are therefore those committed by persons outside of the relation from which such rights arise. Wrongs which violate relative rights are also wrongs which violate the right of the superior in a relation as distinguished from the inferior. An inferior in a relation, as a wife, child, ward, or servant, has, by the common law, no rights in the su- perior which can be violated by third persons; and though a husband, parent, guardian, or master be prevented by third persons from fulfilling the duties of his relation, yet the other party to such relation, sustains, at the hands of such third per- sons, no legal wrong. On the other hand, if the inferior in a relation be prevented by a third person from fulfilling his or her duties, the superior in such relation does sustain a legal wrong at the hands of that third person, and such wrongs are therefore said to violate relative rights. The wrongs which violate the rights of a husband to the 3 bi. coram., '^ , 139. obedience and services of his wife are three: Abduction; Crimi- 3 nni Tons, Ch. xlii. nal conversation; and Battery. Addison on Abduction is the unlawful taking or detention of a married Reeve 'Dom, woman from her husband, The taking or detention niay be Rxl., 138-HO, 54 SchonJer Dom. Kel.,Part Il.Oh, ii, IT, 3 Bl. Comm., 140. 2 Hill Torts. Ch. xlili, §5 12, 13. Reeve Dom. Rel., 420. Schouler Dom. Eel., Part III, Ch. iv. 3 Bl. Comm,, 141. 3 Bl. Comm,, 142. 3 Hill Torts, Ch. xl, §§ 28-31, Ch.xliii, §§ 1-11. Addison on Torts, 412-424. Eeeve Dom. Kel.,424-426.536, 587. Schouler Dom. Eel., Part III, Ch. iv, and Pari VI. Cb. iv, either by fraud, by persuasion, by Yiolenoe, or even by harbor- ing the wife against the will of her husband; and is unlawful in all ca.ses when not done in obedience to legal process, or in the necessary protection of the wife from the abuse of the husband. Criminal conversation is the carnal knowledge of a married woman to the damage of her husband. In this wrong, as in ab- duction, the law presumes the injury to have been accomplished by violence, since the wife has no legal power to consent thereto. If the husband consent to the intercourse he sustains no wrong, and such consent may be presumed if he suffer his wife to live as a prostitute. So if they be separated, by agreement, be sus- tains no injury, for the legal rights which are violated by this wrong have been relinquished by him. Battery is the unlawful exercise of violence toward the person of a married woman to the damage of her husband. Any threat or violence offered to a wife is a violation of her right of personal security, and renders the wrong-doer liable to her. If such violence so far injure her as to deprive her husband of her society or services, it becomes a violation of his rights in her, and ren- ders the wrong-doer liable to him. The wrong which violates the right of a parent in his child is Abduction. Abduction, as a wrong against this relation, is the unlawful taking or detention of a child from the custody and control of its parent. The taking or detention may be either by foice, by fraud, by persuasion, or by harboring a fugitive child with in- tent to encourage him in his disobedience. It is unlawful unless done in pursuance of legal process, or in the necessary shelter or protection of the child, or after a voluntary I'elinquishment by the parent of his right to the control of the child. The wrong which violates the right of a guardian of the per- son of a ward in such ward is the same as that which violates the right of a parent in his child. The wrongs which violate the rights of a m.aster in his servant ai-e three: Retainer; Battery; and Seduction, Retainer is the unlawful taking or detention of a known ser- vant from his master during the period of service. This taking or detention may be by fraud, by persuasion, by force, or by har- boring a fugitive servant with intent to encourage him in with- holding his services from his oiivster, Anyperso^ ip the employ of another, whether as a menial, laborer, or agent, may he thil^ unlawfully taken or detained, and every such taking or detention is unlawful unless it is done in obedience to legal process, or in the necessary protection of the servant from the abuse of his master. Batter y is the unlawful exercise of violence toward the servant of another to the damage of that other. Threats or violence toward a servant arc a violation of his absolute rights and render the wvong-doer liable to him. If the violence be so extreme as to imjjair the value of his services to the master, it is a violation of the rights of the master, and renders the wrong-doer liable to him. Seduction is the unlawful carnal knowledge of the female ser- vant of another to the damage of that other. The carnal knowl- edge may be procured by means of fraud, by persuasion, or by consent of the servant seduced. It must be unlawful, or by a person other than the husband of such servant. It must damage the master by impairing the value to him of the services of such servant. The relation of master and servant is implied by law between persons who stand in loco parentis and the minors to whose ser- vices they are thus entitled. A parent, or guardian of the person, as well as a master, may thus be injured by the retainer, battery, or seduction of a minor daughter or ward, whether she resided with him or not, provided he was entitled to her services. If an adult daughter reside with her father and render services to him, the relation of master and servant exists also between them, and her retainer, battery or seduction become an injury to the father, which renders the wrong-doer liable to him. CHAPTER IV. Of Legal Remedies. For every violation of a legal right the law, in some form. g ives redress . This principle is expressed in the maxim ubi ju^ Broom's Legal ibi remedium : the jus being a right recognized or created by i.j,w ; Addison " on the remedium consisting either in a restoration of the ifjJQred " ' party to his former condition so far as that can be done, or the payment to him of a compensation for his injury out of the prop- erty of the wrong-doer. broom's Legal There a re, however, certain cases of violated legal rights in Haximri, 255. — -^ ' ■ -~ TT^ 1 Bill Torts, which the law refuses to apply its remedies. These are (1) Ch. iv. - — ^ i-v:-^ ^ — _ _ Addisoa on Where the injury results from the joint act of the injured party .and another; (2) Where the injury results from negligence, and the injured party by his own neglect has directly contri- buted thereto; (3) Where the injury results from the engage- ment of the injured party in an illegal transaction; (4) Where the injury results from an act which the wrong-doer was pre- vailed upon or iiifluenced to do by the words or conduct of the injured party; (5) Where the injured party fails to pursue his remedy within the proper period of time. In all these cases the law recognizes the existence of the right and has a remedy by which the injury could be redressed, but refuses to apply that remedy on account of the encouragement to negligence and wrong- doing which the application of such remedy would afford. 3B1. Comia..8. Legal remedies are of four classes : (1) Those which the in- jured party may himself apply; (2) Those which are applied by the joint act of both the injured and the injurer; (.3) Those which are applied by the act of the law alone; (4) Those which are applied by the joint act of the parties and the law. The remedies which the injured party may himself apply are five: Self-defence; Recaption or Reprisal; Entry; Abatement; and Distress. .?Bi.Comm.,3. Self-defence is the act of a party forcibly resisting a forcible 4 Bl. Coram., ' ~ r J ■> o 183. attack upon his own person or property, or upon the persons or 1 Hill Torts, ., , 7 1111 -1 1 ch. V, §§ 11-15. property ot those whom by law he has a right to protect and defend. Tlie degree of force permissible in self-defence depends upon the force of the attack and the object against which that attack is directed. In defence of life or limb a man m.ay, if ne- cessary, destroy life. To prevent or resist certain felonious at- tacks upon his property he may also, if necessary, take life. In defence of his body against ordinary assault or battery, or of his property against a trespass or a misdemeanor, he has no right to take life or do serious injury to limb. And whenever the force used in defence is unnecessary or excessive, the person using it becomes hiaiself a wrong-doer, and liable for the injuries which such excess occasions. aBic m 4 Recaption or reprisal is the act of a party, whose wife, child, 57 Servant, or goods, have been unlawfully taken or detained from him, whereby he retakes possession of the same. This he may do wherever he can find them, provided he does not thereby en- danger the public peace or trespass on the lands of any person who is not privy to the unlawful detainer. Entr y is the act of a party entitled to the immediate posses- g n^-ng""""'' sion of lands whereby he takes possession of the same. Any act which assumes in the doer thereof a dominion over the land is a sufficient entry. Entry may be made either by a landlord upon lands held by his tenant at will or tenant by sufferance, or by any person who has been ousted by the wrongful entry of an abator, intruder, or disseisor. Where the original entry of the present possessor was lawful, as in discontinuance and deforcement, or where the right of entry has been tolled or taken away from the owner of the land by the death of the disseisor and the vesting of possession in his heir, entry cannot be made, and the remedy is by action or suit at law. Entry cannot be made where it will endanger the public peace. Abatement is the act of a party suffering from the wrongs 3Bi.Comm.,5. called nuisance, whereby he removes the cause of his injury, oh. ^x'j^a*'' This remedy must also be so pursued as not to endanger the public peace. Distress is the act of a party who has sustained some legal 3 bi. comm., wrong whereby he seizes the goods of the wrong-doer and re- "3Bi.Comm.,5. tains them until satisfaction be made. This remedy may be cii.CTU,'5{2i-a»'. applied in two cases; (1) by landlords, who may distrain the DUtrcsf^'"^' '"' goods or cattle of their tenants for non-payment of rent; (2) by possessors of land, who may disti-ain cattle found damage feasant or doing damage in their land. This remedy was anciently guarded by strict rules and in this country is now generally reg- ulated by statute. The remedies which are applied by the joint act of the injured 3 gi comm and the injurer are two: Accord and Satisfaction; and Arbitra- ^^'*^' tion. Accord and satisfaction is the agreement of the injurer to give, 2 p.^g ^^^^ and of the injured to receive, some valuable thing as a satisfae- ^^'iy' '^^- '"* tion for the wrong done, followed by the actual giving and re- ceiving of such valuable thing. Arbitration is the agreement of the injurer and injured to sub- „ ^ ^l*?^-,,?*"!?:' — =■ J J Part II, Ch. iii, mit to the decision of a third person all questions as to the Sec v. 8 wrong alleged to have been done, followed by tbe decision ot such third person and the compliance of both parties therewith. The agreement to submit is called the submission, and the de- cision of the third person is called the award. The award must be conformable to the terms of the sxibraission, must specify without ambiguity what is to be done by the parties, must be possible, reasonable, and leave no point, that is contained in the submission, open to further controversy or discussion. When such an award has been performed by the parties the remedy of the injured party is complete. 3 Bi. Comm., The remedies which are applied by the act of the law alone are two: Retainer; and Remitter. 2Reaf. Wills, Retainer is the remedy which the law eives to a creditor who Part II, Ch ix, , ~; . ^ ■' , . . Sec. ill, § 7. has been appointed executor or administrator upon the estate of his deceased debtor, whereby he retains out of the estate a sum sufficient for the payment of his debt, in pireference to other creditors of the same degree. This remedy is usually now ap- plied only where the estate of the deceased debtor is solvent. Remitter'^' '"'" Remitter is the remedy which the law gives to the rightful owner of an estate in real property who has been ousted of pos- session but afterwards has the freehold cast upon him under a defective title, whereby he is presumed to hold both his estate and his possession under his former and perfect title. This remedj' is applied only where the defective estate is cast upon the disseisee by operation of law. If he purchase such an estate no remitter takes place. The remedies which are applied by the joint act of the parties and the law are called actions, or suits at law. B2?2?'' ''"™°''' An action is the pursuit of a legal remedy in a court of justice. The person pursuing the remedy is called the plaintiff; the per- son against whom the remedy is sought is called the defendant. The mode by which the defendant is brought into court to answer to the claim of the plaintiff is called the process. The mu- tual formal allegations of the parties in court, in aiSrmance or denial of the cause of action, are called the pleadings. The decision of the court is called the judgmetit. The proceeding by which the judgment is enforced is called the execution. ^^3 Bi. Comm., Actions at common law are of three classes: Real Actions; ^ ohitty PL, Mixed Actions; and Personal Actiona. iM-w? '^"""^•' A real action is an action brought to recover the possession of 59 a freehold estate in real property from which the plaintiff has been ousted. These actions were formerly numerous and con- stituted a large portion of the business of the courts of common law. In later times they have given place to mixed actions. A mixed action is an action brought to recover the possession of real property, from which the plaintiff has been ousted, to- gether with damages for such ouster. The only mixed action, now of practical importance, is the 3 g, comm action of disseisin or ejectment. This action may be brought for ^^J"f?^itty pi the recovery of any real property upon which entry can be made ^^l^'-s,e,m b and of which a sheriff can deliver the actual possession. It can- H- not be brought to recover an incorporeal hereditament or a per- sonal chattel. Any person, who has a right to enter upon land and hold the exclusive possession thereof, may maintain this ac- tion, whether his estate therein be personal or real. Ejectment will lie against any person who has wrongfully taken or retained possession of the land to the exclusion of the lawful possessor, and under a claim of right. Certain acts of trespass may also be treated as an ouster at the election of the lawful ' possessor, and this action sustained thereon. The plaintiff in ejectment must recover, if at all, by the strength of his own title, not by the weakness of that of the defendant, for actual possession of land gives the possessor a right thereto, as against every one but the lawful possessor. The damages recovered in this action are either nominal, (in which case an action of trespass lies to re- cover the value of the rents and profits during the period of dis- possession,) or are measured by the amount of such rents and profits. The judgment, if for the plaintiff, is that he recover quiet and peaceable possession of the land with damages, which judgtaent the sheriff enforces by delivering the land into his possession, and collecting and paying over the damages out of the defendant's estate. A personal action is an action brought to recover the posses- sion of personal property or to recover damages for some viola- tion of absolute or relative rights. Personal actions are of two kinds : Actions ex delicto; and ^^1 chitty pi.. Actions ex contractu. Actions ex delieto are actions brought to recover the possession of personal property or to recover damages for some wrong other than a breach of contract. Actions ex contractu are actions, |?rouglit to recoygr damages for a breach of contract. m Actions ex delicto are five : Trespass; Case; Trover; Replevin; and Detinue. 3 Bi. Comm., ^ Trespass i s an action brought to recover damages for an in- lii^an'/^^' ^^^' jury to person or property directly resulting from the wrongful 135-132,^166-186! ^^^ of another. It is sometimes called an action of trespass vi et liPcif^^'vu' uTiiiis, from the fact that the wrongs which it is intended to re- IX, X, xi. dress, involve the application of force to the object injured. Hence where the injured object is incorporeal, and not capable of being affected by force, this action will not lie. It is a proper remedy for threats or violence to the person, for false imprison- ment, for trespass quare clausum fregit, for asportation of, or forcible damage to, personal property, for abduction, criminal conversation, or battery of &• wife, for abduction of a child or ward, and for the battery or seduction of a servant. 3 Bi. Oomm., ^ Case is an action brought to recover damages for an injury to i65!i66,'22oi82'r; person or property indirectly aud consequentiallj' resulting from i' Chi'tty PL, the wrongful act or omission of another. It is sometimes called 132-145. . n 7 ^ , r , 1 Hill Eem.,B. an actiou 01 trespass on the case, from the tact that the wrongs viii, ix,xi.' ' which it is intended to redress do not necessarily involve the doing of a specific wrongful act in reference to the object injured, but grow out of the circumstances of the case, among which cir- cumstances is some wrongful omission of the defendant leading to the injury, or some wrongful act of his by which are set in operation other and secondary causes, which, in their turn, pro- duce the injury. Hence this action is a proper remedy for nuis- ance to the person, for libel, slander, and malicious prosecution, for nuisances to land, for waste, subtraction, and disturbance, for damage without force to personal property, for the retainer of a servant, for conspiracy, and for fraud. 3 Bi. Comm., <' Trover is an action brought to recover damages for the wrong- 1 Chitty PI., f ul detention of goods from tbe possession of another. It is also Hill item., B. ti^l\^b^i conversion, since every unlawful detention of goods is a III, Ch.Yi. . .• X- J ■ ■ 1. T ■ conversion, or usurpation of dominion over the same. It is a proper remedy for asportation or f()r detention, wdiere the taking or detaining of the property is the sole element of injury. 3 Bi. Comm., <' Replevin is an action brought to recover the possession of per- 1 Chitty PI., sonal property which is unlawfully taken or detained, and, in Hill kem,, B. some cases, damages for the unlawful asportation or detention. In ancient times this remedy was principally used in cases of dis- tress, but has, in many of the States, been so extended as to lie in 99-108. 61 all Cases where goods are in the possession of one party and ought to be in that of another. The property to be replevied, must be capable of actual delivery, and must be distinguishable from all other property. < Betinue is also an action brought to recover the possession of 3 ^j comm personal property which is unlawfully taken or detained. This '^J- cjjjfty pj remedy is of the same nature as replevin, and is designed to afford l*i-i*5. the same redress. When the action of replevin was confined principally to cases of original wrongful taking, this was the only remedy whereby goods lawfully taken, but unlawfully de- tained, could be recovered. The extension of the action of re- plevin has taken from, the action of detinue much of its impor- tance, and in some of the States it i s now scarcely known. Actions ex contractu are three : Assumpsit; Debt; and Cove- nant. <' xVssumpsit is an action brought to recover damages for the 3 bi. Comm, ,,..,... /, 161-166. breach ot an imphed contract, or 01 an express contract not ichittyPi., under seal. Implied contracts are of two classes: (1) Those im- plied between the state and its subjects from the nature of the relation between them; (2) Those implied between individuals from the nature of their dealings with each other. The first class includes the implied contracts to pay all legal taxes and imposts, to fulfil or submit to all judgments legally rendered, and to pay all fines and forfeitures legally incurred. The second class includes the following: (1) The contract called quantion meruit, or the implied agreement of every mas- ter to pay his servant what the services are reasonably worth ; (2) The contract called quantimi valebat, or the implied agree- ment of the vendee to pay the vendor what the property sold is reasonably worth; (3) The contract of 'money had and received, or the implied agreement of one who receives another's money, without giving valuable consideration for it, to pay it over to that other on demand; (4) The contract of money laid out and eiBjoewcfec?, or the implied agreement of one, for whom another, at his request, has expended money without himself receiving valuable consideration for it,, to pay it to that other on demand; (5) The contract of money lent and advanced, or the implied agreement of one, to whom another has loaned money, to pay it to that other on demand ; (6) The contract on account stated, or the implied agreement of two merchants, who have adjusted 69 3 Bl. Comm., 154. 1 ChlttyPl., 109-115. 3 Bl. Comm., 155 l' Chitty PI., 115-120. 3 Bl. Comm., 168. 3 Bl. Comm., 416, 421. Bac. Abr. tit. Scire Facias. 1 Swift Dig., Drake on At- tachment, Ch. ;tviii-xxxvi. their accounts with each other, that the balance due from eithei* to the other shall be paid upon demand; (7) The contract /br fidelity and skill, or the implied agreement of one who undertakes to perform any service for another that he will discharge his duties with the requisite diligence and skill, and the implied agreement of all contracting parties that fairness and honesty shall be observed between them. "^ Debt is an action brought to recover a specific sum of money due and owing by one man to another. This action will lie when- ever by any contract, whether under seal or not, and whether ex- press or implied, a certain sum of money has become due and payable. It also lies upon judgments and records, to recover the amount due thereon. <" Covenant is an action brought to recover damages for the breach of a contract under seal. In cases where by such breach a sf)ecific and ascertained, or liquidated, sum becomes due as damages, covenant is a concurrent remedy with debt. In oases where such damages are unliquidated, covenant is the only remedy. In addition to the ordinary common law actions there are certain special actions, which are intended to apply to certain special cases, or to supplement and enforce the remedies already mentioned. These are the following: i'' (1) Account , which is an action brought by a principal against his agent, or by one cojjartner against another, or by a ward against a guardian, to compel him to account for money or prop- erty entrusted to his care. (2) Scire-f aoias ; which is an action brought uj^on some re- cord, as a judgment or recognizance, to compel a party inter- ested in such record to show cause why the mandate of the re- cord should not be fulfilled or vacated; (3) Foreign attachment or Garnishment; which is an action brought to compel a debtor of the plaintiff's debtor to pay to the plaintiff so much of the debt due to the plaintiff's debtor as will satisfy the plaintiff's claim; (4) Actions on Statutes ; which are brought to recover some debt or penalty provided by statute and are peculiar to the States on whose statutes they ai-e founded. Finally, there is a class of legal remedies known as Prerogative Writs, extraordinary \n tbeir character and Resigned to afford JJei'eiTlptory I'elief in cases where no action fcould give adequate redress. These are the following: (1) The Writ of Mandamus; which is an order issued by some 3 Bi. Comni., . ■ . •* 110 superior court to ao inferior court, or to a corporation, or to an MoeesonMan- officer, commanding such court, corporation, or officer, to dis- """ ' charge some legal duty; (2) The Writ of Prohibition ; which is an order issued by a 3 bi. comm., superior court to an inferior court forbidding it further to take ' High Ex. Leg. cognizance of a given action then pending before such inferior ^'""•' '-"'■ ^^'• court, but either beyond its jurisdiction or proceeded with in an improper manner; (3) The Writ of Quo Warranto ; which is an order issued by ^ ^^- Comm., a superior court requiring a person or corporation to show by ^^^^n^'^^^' what authority it discharges certain duties or enjoys certain franchises; (4) The Writ of Habeas Corpus: which is an order issued s Bi. Comm., V / ^ ^ . —tL ) 129-137. by a court directing a person in confinement to be brought be- Hurd on Ha- . . „ beaa Corpus, B. fore it that the legality of the confinement may be determined. n. These four great writs issue either upon the application of the counsel for the government or the party aggrieved, and com- pliance with the orders contained therein may be enforced, if necessary, by fine and imprisonment. This entire subject of Legal Remedies, including the forms of action and the pleadings therein, the necessary parties plaintiff and defendant, the qualifications of witnesses, the modes of trial, the effect of judgments, and the enforcement thereof, is in some of the United States regulated by statute. No knowledge of these remedies can therefore be complete Svhich is not based upon a thorough examination of such statutes, and of the changes they have wrought in the procedure of the common law. Although a consideration of the principles of Equity Jurispru- dence is not within the scope of this treatise, yet a mention of the redress accorded by courts of equity is necessary to complete the present subject, and afford a view of the entire field of reme- dies for legal wrongs. Equitable remedies are those which are applied by courts of equity in cases where the only proper legal remedies would fail to give adequate relief. These are of two classes : (1) Those which are designed to prevent wrong-doing; (2) Those which u are designed to relieve against a wrong done." The first-clasfi are usually called injunctions. An injunction is a writ issuing out of a court of equity, and enjoining the respondent, under penalty, to refrain from the commission of some wrongful act, or to prevent the continuance of some wrong actually in opera- tion. Where the injunction simply forbids the doing of a wrong- f ui~ act it is said to be vroTdhitorv : where it necessitates the doing of some act in prevention of a wrong, it is said to be mandatory. Equitable remedies of the second class are very numerous. The principal matters to which they are applied are these: (1) to compel the specific performance of contracts; (2) To relieve a.gainst fraud, oppression, or wrong, practiced by one contracting party on the other; (3) To set aside contracts against public policy ; (4) To relieve in case of mistake or accident ; (5) To re- lieve against penalties, forfeitures, and lapse of time; (6) To control the separate living, separate maintenance, and separate property of married women ; (V) To give to contracts a different meaning or construction from that which they bear at law ; (8) To foreclose mortgages; (9) To adjust partnership accounts; (10) To decree offsets of mutual debts ; (11) To protect the as- signment of choses in action; (12) To compel parties to inter- plead; (13) To compel the principal to indemnify the surety; (14) To compel a trustee to give security; (15) To marshal funds or securities; (16) To enforce or set aside awards; (17) To compel title deeds to be delivered to persons entitled to them; (18) To compel void or satisfied instruments to be delivered up; (19) To appoint receivers ; (20) To perpetuate testimony; (21) To compel a discovery and the production of books and papers ; (22) To aid the execution of a judgment of a court of law. Courts of admiralty and maritime jurisdiction, coui-ts having cognizance of bankrupt or insolvent estates, courts of claims, and other special courts also aff.ird redress in certain cases, which, either on account of their peculiar natui'e or the character of the property which they concern, cannot find adequate remedies in courts of equity or law. BOOK III. Of Public Rights. Public rights are the rights which a state possesses over its subjects, and which the subjects, in their turn, possess in or against the state. The extent and character of these rights de- pends mainly upon the nature of the state, and upon the theory of civil government which underlies its institutions. CHAPTER I. Op the Nature and Functions of a State. Accordinff to the theory which forms the basis of American VatteiLa« . ,. • , ■ , -11, of Nations, B.l, institutions, a state is a political society, organized by the com- ct. i-v. mon consent of the inhabitants of a certain territory, for purposes 304 312, 426-467! of mutual advancement, protection and defence, and exercising Um°iJ , , , . , . J Declaration of whatever powers are necessary to that end. independence. The United States is such a political society. It was organ- iKentcomm.. . , , , ^ , ,.,,... . Part II, Lect. X, ized by the common consent 01 the people inhabiting its territory xviii, xix. , „ , ,, -, 1 Vi T I /-I • • ■. Frotlilngham's to the terms of the compact called the b ederal Constitution, and "Eise of the is endowed with those powers, and those only, which are essential Brownson's to its accomplishment of the purposes for which it was created, public." The original thirteen States are societies of the same nature, jameson Const. Their existence, as communities, began in the common consent of J^^^'g^''""' ^^ the colonists of whom they were composed, and, at the Revolu- tion, they came into being, as independent political societies, not more by their deliverance from the English crown than through the tacit acceptance of them by their members, as the states to which they respectively belonged. Even though no precise act could be designated as the formation of such States by their people, yet the fact that the people of each State, by 9 6Q '"■'^J»»adf)pting the Federal Constitution, stripped their State of Its chief attributes of sovereignty, and lodged them in another poli- tical society, would demonstrate that the individual State, as well as the United States, regards its organization as derived from the common consent of its members, and that it owes to them all its prerogatives and powers. The formation of those States, which, since 1789, have been created within the territories of the United States, and the mode c nst ^"'^ conditions of their organization and admission to the Union, 'IPPL"?"""' ^^ are still clearer illustrations of the same theory. A political society which derives its existence from the com- mon consent of its members may by the same consent be re-or- ganized or dissolved. The people of the United States thus have the right to modify its fundamental law, to change the character Oonet. u. s., of its govei'nment, or even to abolish it altogether. The people Art. IV, VI, A- of the individual States have the same power over their organi- i ill,' Amend! zation, tliough subject to the limitations voluntarily accepted by them in their adoption of the Federal Constitution. Such act, „ , , , however, must be the act of the whole people, not of any frac- Ooolcy Const. ' r r ' j Lim., 598, tional part thereof; and the whole people act only when such change or abolition is made in the manner previously provided by law, or where all actually unite in the measures which modify or overthrow the state, or when those, who have withheld them- selves from active participation in such measures, submit, either willingly or unwillingly, to the result. D clarationof '^^^ State is thus, in the American idea, entirely in the hands in^pendence. gf the people. It derives all its just powers from the consent of Part rv, Lect the governed. It exists only to secure to its subjects the enjoy- ment of their unalienable rights; and when it fails to protect, or becomes destructive of, those rights " it is the i-ight of the peo- ple to alter or abolish it, and to inistitute a new government, laying its foundation on such principles, and organizing its pow- ers in such form, as to them shall seem most likely to effect their •safety and happiness." , cooiey Const. This idea lies at the foundation of every correct interpretation "' of American public law, whether it be the law of public right» or the law of public wrongs, and must especially be regarded in compai-ing the public law of other nations with our own, and in attempting to apply to American institutions, or the American people, the principles which regulate and govern foreign states. 67 The functions of a state are of three kinds : Legislative; Ex- i wiison, ecutive; and Judicial. In discharge of its legislative functions ' 2Buriamaqui, the state makes law. In discharge of its executive functions it enforces law. In discharge of its j udicial functions it interprets and applies law. The exercise of these three functions is gov- ernment; and the persons or bodies, by whom they are exercised, taken collectively, are sometimes called the government. In ancient times, as in most countries in our own day, these three functions were centered in one man or body of men, who thus became the supreme ruler of the state. But in the United States, and in each individual State, the legislative, executive, and judicial powers are separated from each other, and lodged in persons, or in public bodies, who are entirely distinct from one another, and, at the same time, are so constituted that each shall serve as a salutary restraint upon the others. All these persons and public bodies are representatives of the people, are chosen by the people, and are answerable to the people for any breach of duty or abuse of power. The legislative function, in the United States, is exercised by iKentComm., Congress , and, in the individual States, by their respective legis- ^ooiey Const, latures. Both Congress and these legislatures are again divided '"' ^^' into two bodies or houses, feach of which has its separate powers and duties, but yet can make no law without the sanction of the other. These houses can exercise their legislative powers only when in actual and lavi^ful session. The executive function is exercised by the President of the j ^^^^ comm United States and by the Governors of the individual States. Partn.Lect.iiii'. Each has control over the military resources of his state, and is bound to use them whenever it is necessary in order to enforce the law. Each has the power to veto any measure of the legis- lature, and thereby compel it to reconsider, and either repeat or rescind, its action. Each also has a power, differently limited in different states, over the reprieve or pardon of convicted crimi- nals. These powers belong to the executive, as such, and are derived, not by delegation from a superior authoiity or by any legislative act, but from the constitution and organization of the state itself, and cannot be usurped or modified by either of the other branches of the government. Certain subordinate executive functions are exercised by other officeFS, either in pursuance of some legislative enactment, or in obedience to some mandate of judicial or executive authority. Such officers are marshals, sheriffs, jailers, constables, and others, by whatever name they may be known, whose duty it is to ex- ecute and enforce the laws. - .-. - 1 Kent Coram The judicial function is exercised by the courts of the United Part II, Lect. States and of the individual States. XiV-XVll. The courts of the United States are three : The Supreme Court; the Circuit Courts; and the District Courts. The Supreme Court 1 Abbott U.S. consists of a chief justice and associate justices, and has juris- diction over all cases in which an ambassador, a public minister, a consul, or a State may be a party, or which may lawfully be brought before it by appeal. This coiu-t sits only in Washington. The 'Circuit Courts each consist of three judges; a justice of 1 Abbott U.S. the Supreme Court; the judge of the Disti-ict Court for the Prac, 300-M8. ,. . ' . ,. , ' ^.. . ,^ . , ,i i , ^• district in which the Circuit Court is held; and the Circuit judge. These courts have jurisdiction over civil causes, involv- ing five hundred dollars or upwards, which are brought by a citi- zen of one State against a citizen of another State, or in which the United States is plaintiif, or in which an alien is a party. They also have jurisdiction over matters in bankruptcy, over cer- tain cases arising under the revenue laws, over all cases lawfully brought before them by appeal from thfe District Courts, and over all crimes cognizable under the authority of the United States, unless the Acts of Congress otherwise direct. 1 Abbott U.S. The District Courts each consist of one judge, resident in the Prac, 284-203. (jigtrict. These courts have jurisdiction over all admiralty and maritime causes and all matters in bankruptcy, and overall penal and criminal matters cognizable under the laws of the United States, exclusive jurisdiction over which is not vested either in the Supreme or Circuit Courts. There is no uniformity among the individual States, either as to the number or the organization of their courts. In every State there is some supreme tribunal, by which all questions as to the interpretation of laws, and their applicability to given states of fact, are finally and conclusively determined. Under these are one or more inferior courts, in which all cases, civil or criminal, which are not within the exclusive jurisdiction of the courts of the United States, may be heard and decided. But the mode in which these courts may be created, their particular jurisdiction, the appointment or eleetiw of their judges, their terms of office. and their duties, are matters upon which each State has legislated for itself, and still, from time to time, exercises its re-organizing powers. Judicial functions can be exercised by courts only when in ac- tual session at the times and places specified by law, and in the manner which the law provides. Proceedings at another time and place, or in another manner, though in the personal presence and under the direction of a judge, are coram non judice, and void. These several governmental functions can be lawfully exercised jof/^'^^n '^'*''" only by officers duly elected or appointed thereunto. Such an ii9-it9. officer is called an officer dejure. Yet if a person should usurp an office and exei;cise its functions, under color of an election or appointment in itself not legal, he becomes an officer de facto, and his official acts are valid in reference to the rights which in- nocent third persons may acquire thereby. CHAPTER II. Or Subjects and thbie Relations to the State. A subiect is a person who is under legiil obligationtosiibrait Vattei Law of " ■ ■ " I '- — — --" -^ =fc— ~- «~_«.~«»-~.. j(fafjoQg_ B^ 1^ to the authority of a state , in matters relating to the public ch. i § s, ch. "^ ~~ , ,. . xix. B. II, Ch. welfare. The extent of this obligation depends upon the politi- viii. B. ly, ch. V, vii, viii. cal character of the subject, and the duties he may owe to other 2Buriamaqui, 247. States. The tie which binds the subject to the state is called allegiancn. wooiaey int. It originates in the compact which is presumed to have been iv.Vos- ' made, between the subject and the state, at the commencement of their political relations with each other, and is at once the foundation and the measure of the rights which the state has in its subjects, and which they, in their turn, possess in, or against the state. Allegiance is of t\yo kinds : N atural and Local. Natural al- ggj^^'j. Comm., legiance is universal and perpetual. It cannot be forfeited, can- celled or released by any change of time, or place,or circumstance. Only his own death, or the act of the state, can discharge the subject from its obligations. Local allegiance is territorial and temporary. It binds the subject while actually within the state, but may at any time be terminated by bis removal from it. 70 1 Bl. Comm,, 366. 2 Kent Comm,, Part IV, Lect. XXV. Const. U. S., Amend. XIV, Sec. i. Slaughter- House Cases, 16 Wall, 36. Minor vs. Hap- per8ett,21 Wafi, 162. 3 Kent Comm., Part' IV, Lect. XXV. Woolsey Int. Law, Parti, Cli. iii,§66,andApp. Ill, Note 3. Act, July 37, 1868. Brightly'sDig. Laws. U. S. tit. Aliens, Citizen- ship. Subjects are of two kinds : Citizens and Aliens. A citizen is one who owes to the state, of which he is a citizen, au universal and perpetual allegiance. Citizens of the United States are of two classes : Native-born, and Naturalized. A native-born citizen is one who was born within the jurisdiction and allegiance of the United States. The jurisdiction of the United States is co-extensive with its territory, and embraces all persons resident therein, except Indians, and the official representatives of foreign states. The allegiance of the United States includes all its citizens, whether at home or abroad, and all other persons (except Indians, and the official representatives of foreign states), who are permanently domiciled within its jurisdiction. The persons born within this jurisdiction and allegiance are the following: (1) Those born, either at home or abroad, of parents who are citizens; (2) Those born, within the territory of the United States, of alien parents, (Indians, and the official representatives of foreign states excepted,) who are permanently domiciled within the United States. A naturalized citizen is one , who was originally a citizen of a foreign state, but by the act of the United States has been adopt- ed as its citizen. The right of a citizen thus to determine his allegiance to the state in which he was born, and assume the ob- ligations of natural allegiance toward another state, has been al- ways controverted, and, even in the United States, seems oj)posed to the current of judicial opinion. The right, however, has been practically exercised for many years, and has been expressly af- firmed by Acts of Congress. It has also recently obtained a legal sanction by means of treaties between the United States and certain foreign powers. The subject of naturalization is regulated by the statutes of the United States . Those statutes recognize four classes of persons as entitled to become adopted citizens: (1) Those who have re- sided in the United States since June ISth, 1812; (2) Those who have resided in the United States for a period of at least five years, and legally declared their intention to become citizens of the United States more than two years before. their naturaliza- tion; (3) Those who have resided in the United States for a con- tinuous period of five years, three of which was during their minority; (4) Those who have served in the military forces of the United States and have been honorably discharged therefrom. n Any such persons appearing before a court o^ record, {jrovittg their compliance with these conditions, and taking the requisite oaths of allegiance, are admitted, together with such of their minor children as are resident in the United States, to all the privileges and responsibilities of citizenship. An alien is a person born outside of the iurisdiqtion and alle- giance of the United States and not naturalized therein. Such persons, (Indians, and the representatives of foreign states ex- cepted,) when within the territory of the United States, owe thereto a local and temporary allegiance. They are of two classes : Alien-friends and Alien-enemies. An alien-friend is an alien, resident in the United States, and with whose state the United States is at peace. An alien-enemy is an alien, resident in the United States, and with whose state the United States is at war. All citizens of the United States are citizens of the individual State, in which they were born or naturalized, or in which they may have become permanently domiciled. They are entitled to enjoy, during their residence in or transit through any other State, all the immunities and privileges which belong to its own citizens. CHAPTER III. Of the Rights ov a State ovee its StrB.iECTs. The nature and extent of the rights, which the state has over the subject, depends upon the character of the state, and the re- lations which the subject may sustain to other states. The United States, and each individual State, was constituted solely for the protection and defence of its own subjects, and its rights over them are limited, by its organization, to such measures as are necessary to that end. Moreover, the United States derives its powers entirely from the Federal Constitution, and has no rights except such as are expressly granted therein or necessar- ily implied thereby. Each individual State has also its own Constitution, by which, as well as by the Federal Constitution, the powers originally inherent in such State are limited. The subjects, b oth of the United States, a nd of e ach individ- ual State , consist of citizens and aliens . Over its citizens, a sKentComia., state has all the rights which its own character and Constitution ^xv. ''^^^' Vatteltawof jpermit it to possess. Over the alien, residing in ot passing ^a ioiis,___ . ^^ througli its territory, it has such rights as may be necessary ^"wooisey^'int. *" its own peace and order, and at the same time are consistent Jii.lse^es''''''' wi*'i the duty of the alien to his native state. Subject to these different limitations, the rights of the United States, and of each individual State, are those which every state has over its own subjects, and which are necessarily contained in the idea of sovereignty. These rights are two: Obedience and Support. Obedience to the state includes: (1) Obedience to the lawa. whether enacted by the -legislature or recognized by the courts as part of the common law; (2) Obedience to all legitimate com - mands of executive officers; (3) Obedience to all valid judicial orders and decrees. The right to o b edienc e imp lies the right to compel it . For this purpose the state has, and must have, supreme power over the lives, the persons, and the property of its subjects, and may enforce compliance with its laws, commands, and orders, by any means that may be legally established therefor. The right of Support includes : (1) The right to the personal services of the subject whenever the same are needed for the public welfare; (2) The right of eminent domain; (3) The right of taxation. The citizen is liable at all times to render personal service in the military or naval forces of the state, to aid in the arrest and pursuit of criminals, to render assistance to executive officers whenever legally summoned so to do, to serve on juries, and to do any other act in the public interest which the law may, from time to time, require. The alien, on the contrary, is usuall y exempt f rom military or naval service, from jury duty, and from any other liability which is antagonistic to his natural allegiance. Vatteltawof The right of emine>it domain is the right of the state to take jNatlons, a. 1, .^^^■~"'' . M— - .._, o *^c^f'^o*nt P''iv^''^ P™P^''t'y lor pubhc use upon making due compensation Lira., 528-671. therefor. Every species of property, except money and choses in action, is subject to this right. It can be exercised only in accordance with legislative enactment. All proceedings under it are stricti juris, and the property taken must be necessary for, and appropriated to, some public, or quasi public, use. Vattei Law of The right of taxation is the right of the state to impose bur- Nations, B. I, -, , ^, » . Oh. XX, 5§ dens or charges upon the persons or property of its subiects in S40-943. r r J j t3 order to raise money for public purposes. Taxation may be sBuriamaqnl, eithe r direct , as upon polls and land, ovindireot, . as in duties and cooiey const. imposts upon articles of consumption. In all cases it -must be ^™-i ^'''S-ssiS- in strict accordance with legislative authority, and for public pur- poses alone. The United States has no power to tax the means by- which the States perform their governmental functions, and the same limitation rests upon the taxing power of States in reference to the governmental agencies of the United States. Aliens as well as citizens are liable to taxation and subject to the exercise of the right of eminent domain. CHAPTER IV. Op the Rights ok the Subject in oe against the State. The rights of the subject in or against- the state are two: j g, comm Protection and Vindication. These rights are due to the sub- ^"vattei Law of ject in return for the allegiance which binds him to the state, ch.'n''|§ imt'' and constitute the obligation which the state assumed in that original compact by which they became politically related to each other. The protection , which is due to the subject from the state, in- cludes : (1) Protection against wrongs at the hands of co-sub- jects ; (2) Protection against wrongs at the hands of the state itself; (3) Protection against wrongs at the hands of foreign states. The wrongs which one co-subject can inflict upon another are either torts or crimes. These, it is the duty of the state, as far as possible, to prevent, and this it does when it so discharges the three governmental functions as to secure the highest prac- ticable degree of public peace and order, and, at the same time, places no unnecessary restraint upon the property or persons of its subjects. Of wrongs committed against the subject by the state itself some are mere torts or crimes, others involve the usurpation and abuse of power. Most wrongs committed by executive , and some of those committed by j udicial, ofiScers are among the former, and against these the state protects the subject in the same manner as against wrongs committed by co-subjects. Unwar- 10 74 rantable acts of legislation and corruption or incompetency in the courts lie, however, outside of the ordinary domain of wrongs. Against these the state can protect the subject only by its con- stitutional safeguards and by the restrictions which, it tlirows around the action of its courts and legislatures. Vattei Law of Wrongs m ay be committed against the subiect by a foreign Nations, B. II. ^ ' — ~ — : — ': — ~ ^ ; i — : — ^ — — : =-„ rh, vi. sjate either by its direct governmental act, or by its sanction of some wrong done bj^ its own subject. A tort or crime, commit- ted against the subject of one state by the subject of another, becomes the act of that other state if it protects the wrong- doer from punishment or denies to the injured j)arty his appro- priate redress. In that event it is the duty of the state, whose subject has been injured, to demand satisfaction from the state, which, first by its subject and finally by its own act, has com- mitted the wrong. A firm and persistent policy, in thus demand- ing and enforcing full regard for their rights, is a duty which every state owes to its subjects, and is the only means by which such rights can be protected against invasion at the hands of foreign states. The vindication which is due to the su b ject from the state is the complement of thi s protection . Entire protection of the sub- ject by the state against the commission of legal wrongs is im- possible, and, when protection fails, it is the duty of the state to redress the injuries which it could not prevent. This redress or vindication includes: (1) Redress of wrongs committed by co- subjects; (2) Redress of wrongs committed by the state itself; (3) Redress of wrongs committed by foreign states. Vattci Law of The redress of wrong s committed by co-subiects is principally Nations, B. I, ~ ,. , , ; ; ' — r— '^ z — <'h, liii. .apcomphshed through the agency of courts . It is, therefore, the duty of the state to establish courts, and to so regulate the pro- cedure therein as to give redress with certainty, with justice, .and without unnecessary expense or delay. It is also the duty of the state, by appropriate legislation, to provide against such fraudu- lent concealments of person or property as tend to defeat the ends of justice, to punish as crimes those torts which are either grievously injurious to the subject or of dangerous example, and to adopt all other measures necessary to secure that remedy for wrong which the state, by its organization, pledges itself to af- ford. Il!£,Srong,odLisl?JiI£.£2IEI!l!ij£!L^I^^ Jtself, through 75 its executive or iudicial officers, and which are properly either torts or crimes, demand the same redress against the persons who commit them as do other wrongs received from a co-subject. In certain cases also, the state, by its own permission, may be sued in its own courts, as if it were a private citizen. But when the legislature passes laws which are unwarranted by its constitu- tional authority and oppressive to the subject, there is no remedy against the legislative body or the individuals of whom that body is composed. It is the duty of the courts to treat such laws as invalid, and (o decline to aid in their enforcement. When offi- cers, judicial or executive, become corrupt or incompetent, it is the duty of the state to remove them and fill their places with competent and honest men. When all the branches of the gov- ernment unite in an abuse or usurpation of power, the supreme duty devolves upon the people to overthrow the government and establish a new one, " peaceably if they can, forcibly if they must." The wrong committed by the subject of one state against the wooieey int. subject of another is in its elf merely a tort or crime, and the C^\n-iuf ' remedy therefor is to be sought, in the first instance, in the courts of the state of which the wrong-doer is a subject. If such state refuse redress, and thereby adopts the act of the wrong- doer as its own, it is the duty of the state, of which the injured party is a subject, to demand of the other state a reparation for the injury, and to enforce its demand by retorsion, reprisal, or, when necessary, even by actual war. This also is the only rem- edy when the subject of one state is injured by the direct action of a foreign state. These rights of the s ubject in or against the state are qualified by the relations which the subject himself occupies toward other states. To the citizen they belong in their widest extent. Com- i bi. Comm., / ^ , , ' 370. plete protection and vindication at all times, in all places, in all his legal rights, and at all hazards, is due to him, and the state, which withholds it, breaks the compact out of which its own ex- istence sprang, and forfeits the allegiance of the citizen. The i bi. comm., . . . . 371-373 alien, on the other hand, has no right to protection or vindica- vatteiLawof tion against a foreign state. If he be an alien-friend, the state ch. viii^ {'io4l is bound to protect him against wrongs from itself or his co-sub- 76, 77.' ' ^' jects, and to afford to him the usual remedies in courts of justice. part^i"*Lec™iiil If he beoome m g-Uen^enemy these rights, as matters of stric t paft^'n^Tect! 76 wooieey int, law, are forfeited, and he may be regarded as a prisoner of war, ii?,"§6 61-65, 76" and all Ms property be confiscated- by the state. Gustom, how- im' ' ' ' ever, of long standing and continuous observance sufficient almost to have the force of- law, has recognized the equitable rights of alien-enemies, and nowacoords to themthe rights of alien-friends so long as they are permitted to remain within the tert'itory of the state. An^'iU°^t. In tJie United States these different rights and their' modes of ^'i^bbottu s exercise are further qualified by the character of the United f^aso^'^' ■"^' States or of the individual State, and by the relations which the Federal Constitution has established between them. It is the duty of each individual State to protect its own subject against wrongs at the hands of his co^subjeot, and to afford redress, for the wrongs committed by its subject, to all persons whatsoever. It is the duty of the United States to protect its subject against certain wrongs at the hands of any state or person, and against all wrongs at the hands of any person except his co-subject of the individual State. It is also the duty of the United States to redress those wrongs whose commission it is its duty, so far as practicable, to prevent. II 530-550, BOOK IV. Of Public Wrongs. Pttblic- wrongs are those by which the ri^bts of the state ove r ^ * ^^- Comm., the subject, or the rights of the subiect in or against the state, Austin's Jmis- * *- o J => > prudence. Lect. are either diminished or destroyed . There is a sense in which all ^™v??"'o ^^ J 3Wilson,3-46. wrongs are public wrongs, since they involve an interruption of Keeve's Hist. the duties of the subiect to the state or interfere with that pro- dex, crim. Law, ■" '■ andEefercnces ) . teetion which the state owes to the subiect. But there are cer- Beccaria, ch. ... VI. vii. tain wrongs which do not terminate upon the individual whose Broom. Com., property or person they assail, but reach through and beyond i Bisii. c. L., him to tb© social fabric of which he forms a part, and violate the peace and order of the state. Such wrongs contain an ele- ment of evil which is wanting to the mere private injury. They strike at the foundations of all civil government, and justly are regarded by the law as wrongs of a far different nature, and de- manding a far different redress. What special wrongs do thus invade the majesty and security of the state largely depends upon the condition of society and the character of the state itself. An act, which under a free government would work no public evil, might, if committed un- der a despotic government, convulse or overthrow the state. An \./ ^.s 1750-1868. to Steal. Taking is the forcible and wrongful prehension or gi'astJing of s Archb., dt. an object . Carrying away is the wrongful removal of the ob- ^i'ii^^', l., ject taken, from the place where it was when taken. The tak- 5S™-830. ing and carrying away, in larceny, are usually considered • to- gether under the name of taking, and, so considered, they consist in the forcible severance of the property from the possession of the owner against his will. This severance must be complete, but need be only for an instant and to the shortest distance pos- sible ; the mere lifting of an article out of its place being a taking. It must also be accomplished by some direct act of the taker ap- plying force to the object taken, either in the removal or reception thereof. But the degree and kind of force are immaterial; to lead or entice away a horse, or to accept a chattel which is delivered up through fear, are alike a taking. The severance must be from the possession of the owner. An article abandoned by its owner is not the subject of theft. But if he lose it by accident, or place it in the custody of another for a temporary purpose, it is still in his possession. Thus goods in the charge of a servant, as such, are in the possession of his master, and a taking and carrying away of them by the servant, with intent to steal, is theft. A bailment of goods by the owner, however, confers a special property there- in upon the bailee, and vests the possession of them in him as against all other persons, including the bailor. A bailee, there- fore, cannot steal the property of the bailor, unless by some mis- feasance he first determine the bailment and, after that, take and carry away the goods. The severance, finally, must be invito domino, or against the owner's will. If the owner consent there- to, even though his consent be obtained by fraud, it is no taking. But such consent must be to the severance of the property from his possession, as distinguished from a consent to the transfer of its temporary/ custody. For one, who by fraud or by persuasion, procures the owner to deliver him an article, the owner not in- tending thereby to transfer the possession thereof, is guilty of a taking, if, after receiving it into his custody, he detains it against the owner's will. The property taken must be personal property . Real property, i Blsh. c. L., and things permanently annexed thereto, are not subjects of 55 3S7-S59, sia. theft. If portions of the realty are severed from the mass there. of and are thereby changed into personal property, such act of severance is not a theft, for, in their movable condition, these ob- §4 jects never were in the possession of their owner. JBut if tiiis severance takes place at one time, and afterward such objects pass into the possession of their owner, a subsequent removal of them, with intent to steal, will be a theft. Thus if a person pluck apples from a tree, or tear a shutte r from a house and carry it immediately away , it is a trespass and no theft. But if he lay the shutter or the apples on the gr ound of the owner f or a single instant after such severance, they pass into the possession of the owner in their movable condition^ and the taking of them then, with felonious intent, will be a the ft. The property must not only be personal property, it must also be personal property in possession, as distinguished from such property in action. A chose in action is incapable of being stolen. Its very name im- plies it to be that which is not in, and therefore cannot be taken out of, the possession of the owner. Bills, notes, bonds, and other instruments which evidence the existence of such choses, are, however, frequently called choses in action, even by law- writers. Such instruments are not, at common law, subjects of theft though generally made so by statute. The property taken must also be of some intrinsic value. Ownership, in larceny as in other crimes, consists in the legal right of possession , and must reside in some one other than the taker. Things which can have no owner, as the corpse of a human being, animals of a base nature, or animals ./eroe naturae and unreclaimed, cannot be stolen. Ownership is not devested either by the accidental loss of the property or by the toi'tious and unlawful act of another. One person may have a general, and another a special, ownership in the same chattel. In such cases, the taking of the property by the general owner, with in- tent to steal, will be a theft from the special owner, and the tak- ing of it, with that intent, by a third person will be a theft from both owners. Joint-tenants and tenants in common have no ownership as against each other, nor has a husband any owner- ship as against his wife. The ownership of property attached, or held under an execution before sale, is still in the general owner, and property in the possession of an agent belongs, as against all third parties, to the principal. Clothing worn by children is owned both by them and by their parents. The intent to steal is that which distinguishes theft from a mere trespass. This intent is called the animus fur andi, and has 95 been said to characterize the taking as a taking lucri causa, or for the sake of gain. The intent to steal embraces two intents: (1) The intent to permanently deprive the owner of his posses- sion of the property; and (2) The intent to derive some benefit, aetnal or imaginary, to the taker. A taking with intent to return after using is not the intent to steal. Thus where a servant took his master's goods and pawned them for his own benefit, but with the intention to redeem and restore them, it was held to be no theft. So where a thief, without permission, takes a horse merely to aid him in his flight with other property which he has stolen, and with the intent to abandon the horse and suifer him to be returned to the owner, it is not a stealing of the horse. The taker must also intend some advantage to himself, but such advantage need not be of a pecuniary character, nor need it be a real advantage as distinguished from an imaginary .one. Thus where, a woman took and destroyed the letter of another which r. she feared might injure her character, where a servant took his master's beans to save himself the trouble of preparing other food for the master's horses, where a man killed the horse of an- other to prevent it from being used as an evidence against him, where one stole a towel to make a present of it to another; in all these cases, and in many others similar thereto, it has been held that the taking was for the sake of gain, and that a complete in- tent to steal existed. This doctrine of luuri causa has, however, been the subject of much discussion by law-writers; and the courts, in which it has been considered, are not harmonious in their decisions. The intent to steal must exist at the time of the taking. If the taking bo without intent to steal, that is, if the intent to steal is first formed in the mind of the taker after the severance of the object from the possession of the owner, there is no theft. And; on the other hand, if the taking be with the intent to steal, the theft is complete even though afterwards the thief renent and return the property. The intent to steal is a specific i Bish. c. L., intent, and must be alleged and proved like any other part of the criminal act. Robbery is the theft of property from the person or in tbe-.^^ ^- comm., presence of the owner, accomplished by violence or by putting ,.i h. p. c, him in fear . Three things are here to be regarded: (1) The i Euss. Cr., theft; (2) The person or presence of the owner; and (3) The vio- swhai-t.c.L., lence or puttmg him m tear. 96 i Archb. Cr. Pr., 506-536. 2 Bisli. 0. L. IS 1108-1122. Broom Com. 974. Eex. V6. Fran- cis, 2Str.,]01S. Rex. vs. Gray, 2 East, P.C.rvi, The theft, in robbery, consists of the same elements, and is , governed by the same rules, as when perpetrated out of the pres- , ence of the owner, and without violence or putting him in fear. There must be a taking and carr yin g awa y, from the possession of the owner and against his will, of personal property, with the intent to steal. In robbery, however, t he property must be taken from the per - son, or in the presence of the owner. How far the limits of this pre- sence extend is not easily determined. It includes all property which is in the sight of the owner and under his immediate and per- sonal «are and protection. It is also held that property, however near to him, if not actually in his sight or under his control, is not in his presence. Thus where a master's goods were stolen by violence from his servant in the master's presence, where a traveler was assaulted by a thief who then took away his horse .standing by him, and where a person under fear threw his .purse by the wayside, and his assailant, immediately and in his sight, picked it up: in all these cases the act was adjudged to be a tak- ing from the presence of the owner. And, on the other hand, where thieves struck money from the owner's hand and it fell upon the ground, whence they immediately took it up, it not ap- pearing that he saw them do so, or that the money remained within his control, it was held to be no robbery. The property must be taken either by violence or by putting in fear. When the taking is by violence, the violence must be some other exercise of physical force than that which is necessa- rily involved in the act of taking. It consists in an attack upon the person of the owner in distinction from a mere attack upon his property. Thus where an object is snatched from the hand of the owner, or is stealthily extracted from his pocket, there is no robbery. But if it be attached by a chain to his neck so that the taking of it applies force to his person, or if there be a strug- gle for its possession before the taking, there is sufficient violence to make the theft a robbery. The violence, as well as putting in fear, must, however, either precede or accompany the taking; for a personal injury, committed after a taking without violence, does not alter the original character of the theft. To put in fear is to excite in the mind of the owner a reasonable apprehension that physical injury will be committed upon him, or that he will be prosecuted for the crime of sodomy. This fear may be excited 97 by threats or by acts which manifest the intent to commit vio- lence. The property must be parted with by the owner^while he is under the influence of such fear, but it need not be^at the same time that the threats were made against him. Thus where a thief compelled a man to swear that he would bring a sum of money to him at a certain place, and threatened him with death if he failed to do so, the delivery of the money at a subsequent time under such fear, and its acceptance by the thief, was held to be a robbery. So where, under fear of a prosecution for sodomy, a man promised to pay money, and afterwards, under the influ- ence of the same Tear, actually paid it, the taking of the money was considered robbery. It has been also decided that the threatened injury need not be to the person of the owner only, but that threats of violence to his child, if made in his presence and for the purpose of theft, are of the same effect as if the threat, had been of violence to him. A larceny from the person, w ithout violence or pu|,^;ipgjn„fjia.r, is usually regarded as a higher ci-jme tha n simple theft, and meriting a severer punishment . §§684-887. CHAPTER V. Of Misdbmeanobs and Statute-Felonies. All crimes, which are neither treason or felony, are misde- meanors. Statute-felonies are either misdemeanors whose prose- , iBish. c. cation and punishment are by statute made to follow the proced- ure in felony, or are acts, not before known as crimes, which by statute are made felony. No crime, however, can be a felony unless it is such at common law, or is expressly declared to be so by a statute. Misdemeanors and statute-felonies have been divided into nine classes: (l) Crimes against Public Justice; (2) Crimes against Public Peace ; (3) Crimes against Public Trade; (4) Crimes against Public Health; (5) Crimes against Public Policy; (6) Crimes against the Persons of individuals ; (7) Crimes against the Property of individuals; (8) Attempts; and (9) Solicitations. This classification is not entirely accurate, for there are several offenses which attack piore than one publip iptprest pr right, and 4 Bl. Comm., 127-141. 1 Bish. C. L., §5 904-935. a Knss. Cr., B86-603. 2 Whart.C.L., §§ 2198-2287. 2 Archb. Cr. Pr., 949-979. 1 Bish. C. L., §5 396, 524. 2 Bi8h. C. L., 51 980-1016. Broom Com., 010, 1 KuBB. Cr., 164-160. 2 Whart.C.L., 5§ 2814, 2815. 2 Archb. Cr., Pr., 903-806. 2 Bish. O. L., {§95-98. therefore .belong to two or nxore of these divisions. With this exeeptioa, however, it presents, as well as any other that can be devised, the .distinctive characteristics by which these crimes are separated from each other. Crimes ayainst public ^astice are those crimes by which the course of legal proceedings is perverted, impeded, or prevented. The principal crimes of this class are the following: Perjury; Bribery; Escape, Prison-Breach, and Rescue; Receiving stolen goods; Compounding; Falsifying Records; Obstructing Process; Barratry, Maintenance, and Champerty; Conspiracy; Embracery; OflScial Negligence ; Oppression ; Extortion ; Misprision of Felony. Perjui-y is the wilful giving of false t estimony under oath, be- fore a competent tribunal, upon a point material to the issue. Testimony is wilfully false when the person testifying wilfuUy misrepresents the matter as it lies in his own mind, as when he testifies to what he knows is not true, or to what he does not know to be true, or to what he believes to be false. It is the cor^ rupt intention which constitutes this crime; and one who states the fact as it really is, if he believe that in so doing he is stating falsely, gives false testimony. But no statement, however un- true, if made under a bona fide mistake, is false testimony, even if such mistake were the result of great carelessness. A person is under oath whenever he has been sworn or affirmed in legal form by an officer duly empowered so to do. A competent tri- bunal is one which by law has cognizance of judicial proceedings, though in some States it includes all authorities by whom the truth of any issue involving temporal disadvantage may be in- vestigated and decided. Testimony is upon a point material to the issue whenever it is calculated to influence the tribunal in its decision of the issue, whether such influence be great or small. Subornation of perjury is the procnring of another person to com- mit perjury. Bribery is the giving or receiving of any yaluable_thing in or- der that the receiver may be corruptly influenced thereby in the discharge of some public dut y. This crime is committed equally by the giver and by the receiver. The acts which it is designed to influence need not be judicial acts: to procure a public ap^ pointment by means of an undue reward, and to corruptly obtain votes for a public office, are bribery. Ksca-pe is the fliaht foam (jostodV of a p erson who k- tin der i h. p. c, lawful arrest and imprisoiament . It may also be eomniitted by ^'i"*kuss. cr., an officer who either connives at the flight of a person from his ^^tjS-hb. cr., custody, or negligently permits him to escape. The person escap- ^VBiehT^c^i., ing, and the officer who negligently permits it, are guilty of a ^^ wss-ioes. misdemeanor, but an officer who connives at an escape becomes guilty of the same degree of crime as that with which his pris- oner was charged. Prison-Breach is the forcible breaking out of a lawful place of imprisonment hj a person who is lawfully con- fined therein, and who, by means of such breaking, effects his escape therefrom. The breaking, though actual, need not be in- tentional, but it must result from the force used in escaping. It must also be performed by the prisoner himself or by others through his procurement, for if he escape through an aperture which was broken without his consent, it is not prison-breach in him; nor is it prison-breach if he himself break and do not escape. To break from prison through necessity, as if the building be on fire, is not a crime. Rescue is the freeing of another by force from a lawful arrest or imprisonment. The rescuer thereby be- comes guilty of the same degree of crime as that with which the person rescued was charged. Receiving stolen goods, knowing them to h a ve Ijeen stolen, is a crim e whenever such receiving was for the purpose of conceal- ^I"?^?- 2 Enss. Cr., 2 Whart.C.L., ment or of profit. The receiver must have had manual posses- §§ 1888-1903. ^ , , -r 3 Archb., Cr., svon of, or an actual control over, the goods, and must also have ^^-^ 6S3-fi74. received them from the thief himself and not from some other l§ 1092-1095! intermediate receiver. Compounding is the agreement of the injured party n ot to j jj^g r, prosecute for the offense, in consideration of some pecun iary ad- ^^2 Wha^t vantage. Thus where the owner of stolen goods receives the ^^'^: ,_,. „' ' ' ^ — , ^ . n Arcao. Cr. same from the thief under a contract not to inform or appear P'-Wss. against him, or where he takes a note in consideration that he 1 Bish. c. l. will not prosecute, it is a compounding. The gist of this offense ^^ 8*6-651, is the concealment of the crime, and abstaining from prosecution to the detriment of the public. Falsifying Record s is the wilful and fraudulent removal, sup- jRussCr 414 p ression, or alteration of any public record. The law gives the ss^sS'^^a^' '"• highest credit to all public records, whether of a judicial or min- isterial character; and any alteration thereof, not made under competent authority and for the purpose of properly correcting 100 the same, Is a crime of great magnitude. ThUs to irisett in, or erase names from, an indictment, to make or use a false aifidavit, to change the parties or descriptions in the record of .a deed, are such falsifications as amount to crime. Some writers treat this crime under the head of forgery. 1 Enss. Cr., Obsti'ucting Process consists in any act which is designed to, SArckb. Cr. and actually does, prevent or hinder the officers of the law in iBiBh. c.L., the performance of their duties. This obstruction may be 88 627, 635, 636, - '-^^■^-"-'™'-"- r' ■--'■ . . r ■ • i 918,919. offered to the service either or civil or oi criminal process; and, when offered to the service of criminal process, makes the actor a participant in the original crime and liable to its penalty. 1 Enss. Cr., Barratrv is the habitual moving or exciting o f quarrels be - 175-181 184. a i . ij .ii . ii i i . iii» i i / . i *-^ ' ' . " ■■ "■' .ici, N ... » .. .. i Ti . .* ■■ ■ Il l SBish. c'. L., tween other persons, whether at law or otherwise. This crime §§80-84,is6-i«. ; ■= — 1^ f-! : — ; ; :— cannot be committed by a single act, or by a series or acts con- stituting but one transaction. At least three instances are nec- essary, but whether three are always sufficient is still a question. The person guilty of this crime is called a common barrator, and if he be an attorney-at-law is liable to be disbarred. Maintenance is the giving of aid, to either party in a suit, by a thii'd person who has no legitim ate interest thei'ein. Such aid may be by the furnishing of money, or by the hiring of counsel, or by giving to the party public countenance and support. The existence of certain relationships between such third persons and the party to the suit will, however, justify such assistance. Thus a father may aid the son, or a son the father, a husband may as- sist his wife, and a master his servant; and any one may aid a poor man in a suit to regain his right. Champerty is the giving of aid to either party in a suit by a third person, under an agreement with such party that the proceeds of the suit, if any there be, shall be divided between them. Thus the agreement of an attorney to collect by suit a claim or claims and take a certain proportion of the amount col- lected, or a bargain that the expense of the suit being borne by a third person he shall have a percentage of the result, is cham- perty. Such agreements are void, and the recompense contracted for cannot be recovered by law. Akin to champerty is the buy- ing or selling at a discount of a doubtful or pretended title to lands, in order that the buyer may carry on the suit when the seller does not think it worth his while so to do. Such purchase and sale must be with knowledge of the impediment. 101 CotlspifaCy is the agreement of tw6 fti* niore t)fers6il8 to d o an ^'iHiast^tir'., unlawful act, or to do a lawful act in an unlawful manner. A awh'art.c.L., conspiracy cannot be committed by one person alone, nor by bus- '2 Archb.cr. band and wife alone for they are legally but one. There must ^a'suhTc^L., be between the conspirators a concert of will and endeavor, not a ^^ i'''*'-^''!- mere coincidence of intention or attempt. The agreement must; be to do some act in itself a crime, or some act which becomes a crime by the manner in which it is undertaken. Thus an agreement to do an act which is immoral but not illegal, or to effect a purpose not immoral or illegal in itself but prejudicial to the public when done by the confederation of many, or to extort money or injure reputation by acts which in an individ- ual are not criminal, or to cheat and defraud or impoverish and ruin a person by means not indictable in an individual, is a con- spiracy, because, whatever the character of the act agreed to be done, the combination of numbers to effect it is a thing danger- ous to the public, and not to be permitted by the law. Embracery is the attempt of any person to corruptly influence 1 Rnas. Or., a jury . Any influence which is exerted by any person, whether aBisii. 0. L., himself a juror or not, either upon single jurors or on the whole panel, by means of any promises, threats, persuasions, gifts, en- treaties, or in any other way than by the evidence and arguments of counsel in open court, is a corrupt influence. The giving of a reward to a juror or jurors after verdict partakes of the same character. OfBcial negligence is the voluntary failure of justices, sheriffs, 2 Archij. cr. constables, coroners and other civil ofiicers. to discharge those a'-Bish. 0." L., public duties which are imposed on them by the law. Where the 1 Biah. b. l., duties are judicial in their character the oflicer is not criminally " • " • liable unless he is corrupt, but where the duty is ministerial only the neglect of it is always indictable. Legislators, judges of courts of record acting judicially, jurors, and such high officers of government as are entrusted with responsible discretionary ^ • duties, are not civil officers within the definition of this crime. • Oppression is the tyrannical partiality of any judge, justice, or 1 Buss, cr,, other magistrate in the administration of his oftice. To constitute this crime the acts of partiality must be corrupt and proceed from dishonest motives, as from fear or favor, and not from a mere error of judgment or mistake of law. Extortion is the corrup t demanding or taking b y an office r, pr., sgs-eoa. '' i Siak id. L., 55 376-391. 1 Btsh. C. L., §5 652-656. 4 Bl. Coram . 142-153. 1 Bish. C. L. 5§ 974-983. 1 EUBB. Of., 26B-390. 2Whart.0.L., §§ 2473-2504. 2 Archb. Cr. Pr., 934-945. 2 Bish. C. L,, §5 1096-1107. ttader eolor of his office, of any fee which is not due to hrm of which exceeds what is due. Any officer, whether a justice, sheriff, attorney, tax-collector, or clerk of courts, and whether dejure or de facto, may commit this crime. The thing extorted must be taken as a fee, that is, demanded or received by the officer under color of his office. The extortion may be either by claiming a reward where the service is by law made gratuitous, or by demanding an amount greater than the law fixes for the service, or by refusing to perform the service till the fee is paid in cases where the law does not entitle the officer to be paid in advance. The motive must be corrupt; for where the reward is paid voluntarily in return for real benefits conferred by extra exertions of the officer, or where th« officer acts in good faith under a mistake, there is no extortion. Extortion may be com- mitted against a county or a corporation as well as against an individual. Misprision of^ f elony is the neglect of any p erson, who know^ that a felony has been OLJ^I about to_be_commijt£g^,to,gi,xajjlfii information as may prevent such felony or bring the felon to justice. Mere knowledge of the felony without assent to it is enough to make the concealer guilty of this crime. If by his assent he contributes thereto he becomes a partaker in the felony. Crimes against public peace are those crimes by which the peace and security of the public are disturbed . The principal offenses of this class are the following: Riot, Rout, and Unlaw- ful Assembly ; Carrying Arms; Challenging and Duelling; Af- fray; Disturbing Meetings; Forcible Entry and Detainer; Libel. Riot is the doing of some unlawful act of violence, or of some lawful act in a violent and tumultous manner, by three or more persons who are congregated together for that purpose. The act must be one calculated to create apprehension of danger in the minds of persons other than the rioters. It need not be un- lawful; for, if it be ever so lawful, the doing of it in a turbulent manner calculated to excite terror amounts to riot. Nor is it necessary that the intent to do the riotous act exist before the actual assembling of the rioters ; for a peaceable and lawful as- sembly may, by the subsequent formation of a riotous design, and the commission of the riotous act in pursuance thereof, be- come a riot. All persons who join the assemblage while it is engaged in a riot, and assist therein, are as truly rioters as if 103 they had eo-operated with it from the beginning. All pei'- fions who are present, and concur in the acts of the assem- bly, are also responsible therefor. Rout is the congre- gating together of three or more persons for the purpose of doing sonje act which, if done, would amount to riot, and the doing by them of something in reference thereto. It agrees in all respects with riot, except that it may be a complete offense without the commission of the intended act. Unlawful Assembly is the congregating together of three or more per- sons for the purpose of doing some act which, if done, would amount to riot. Such an assembly need not intend any specific mischief; if it is of a character calculated to excite public terror and alarm it is unlawful. Carrying Arms is the going about armed with dangerous or asisii. c. L., unusual weapon s to the terror of the public . The Constitution §§^20-125. of the United States secures the right to keep and bear arms, such as are used for purposes of war, in defence of the citizens or the state. It gives, however, no right to carry unusual weapons, or to carry any weapon in a tumultuous manner and to the dis- turbance of the public peace. Challenging; is the excitin g, invitingj_qr provoking of another 1 Archb. cr. to fight. Duelling is the agreement of two or more persons to ^g'sfsh^^oi L fight and tbeir actual fighting in pursuance of such agreement. ^^ 3iO-3is. A challenge may be verbal or written, and may be expressed in any words which are intended to be understood, and are under- stood, as an invitation to fight. Mere words of abuse, however, do not constitute a challenge. Where death results from a duel it is murder in the person killing; and all persons present and giving countenance to the duel are guilty of the same crime. Afiray is the fighting of two or more persons in a public place to the t e r ro r of tb e public. A public place is a place to which peo- ple in general are, at the time, privileged to resort without an invitation. A fight in a private place, though in the presence of others, is not an affray. Mere words are not such fighting as to constitute an affray; actual or attempted violence is necessary. The terror may be actual, or it may be presumed by law from the fighting itself if calculated to excite it. An affray may be aggravated by the circumstances under which it is committed, as if it be dangerous in its tendency, or occur in a court of justice. Disturbing Meetings is th e wrongful interraption of persons 1/2%^*^,^'^'" 1 Bubs. Or., 291-296. a Archb. Pr., 945-948. 1 BiBh. C. T,, §315. 2 Blah. C. 1.., §§32-37. 104 1 KuBB. Cr. 304-316. 2 Whart.C.L., 5§ 2013-2055. 2 Archb. Cr., Pr., 330-340. 2 Bish. C. L., ,|§ 463-490. 1 EnBS, Cr., 220-265. 2Bish. C. L., 5i 897-9.32. 4 Bl. Comm., 154-180. 1 Bish. C. L., 55 936-9.38. 953- 971. 2 Rubs. Cr., 274-286. 2 Whart.O.L., f.J 2056-2068. 2 Archb. Cr. Pr., 644-652. 2Bieh. C. L., H 144-165. 1 B & H. L. C, C, }-22, who are assembled for a lawful purpose. All persons have a right peaceably to assemble for worship, for political discussion, or for any other purpose not in itself unlawful, and the invasion of this right by others is an indictable ofEense. What amounts to a disturbance depends upon the circumstances of each individ- ual case, for what is proper in one kind of meeting would not be permissible in another. But the interruption must be wilful and designed, and not th'e result of accident or mistake. Forcible Entry is an entry upon land which is in the peaceable possession of another , with such an array of force as to cause terror in those who are present opposing. Forcible Detainer is the detaining of the possession of land, from a person rightfully entitled thereto, by such force as to excite terror in those who are present claiming possession. The premises entered upon must be in the peaceable possession, as distinguished from the bare cus- tody, of another and the act of entry or detainer must be accom- panied by such violence of conduct or language, or be effected by such an array of numbers, as to excite a reasonable apprehen- sion, in the minds of those who oppose it, that bodily harm to themselves or a breach of the public peace will result, if they do not cease to hold or claim their possession. But the violence may be offered either to the property or to the person, and either upon the premises or apart therefrom, provided it is coupled with a claim to the possession of the land and with a design thereby to enforce such claim. Libel is t he wilful and galiciouj_£i3Jblication, in a permanent and visible form, of some ma tter tending to injure the reputation of another . It involves the same acts as the private wrong of the same name. Crimes against public trade are crimes by which the free - dom and security of public trade are restricted or impaired . The principal crime of this class is Cheating. Cheating is the perpetration of a fraud, iniurions to the person or estate o f another, by means against which common prudence cannot guard. Mere words whether spoken or written, however false, do not amount to a cheat. There must be some visible symbol or token of such a nature that, according to the customs of society, all persons are supposed to place confidence therein. Thus false weights or measures, false dice, worthless bank-bills, forged- instruments SHch fts deeds, orders, notes or receipt?, are tokeiis; the use of wHicli, ib defi-^uding another, makersutfli-fteWf* a cheat. The person defrauded must have acted in odnseqttie'iice of his i-ellatice on the truth of such token or sytnbol, for if hia consent to the transaction was induced by other motives it iS riot a cheat. Embezzlement and False Pretences are fraudulent acts r-n^k'si a* of one person by which injury is done to another, but which do ^^g^^wtort^c*. not amount to cheats at common' law. They are made criminal ^jlij^a^r'**' both by Euglish and American statutes, and the details of the jl^^l^jftli^l' crimes must be gathered from the statutes themselves. In geri- ,A^}^h'iP-' ^-^ ° ^^ §§ 5,85.^566. eral terms, however, embezzlement may be defined as the fraudu- ss^slftS^e'^s^ lent conversion of property by a person to whom it hais beenen- *8a.= trusted by the owner; and false pretences as the obtaibiug of the personal chattels of another by means of such false respre- seutations, in regard to existing facts, as induce the owner tb part with his firoperty. Crimes against public health are those crimes by which the i bi. comm., physical health of the people at largfe-is endangered or impaired , i Bish. c. l.. The sale of unwholesome provisions, the defilement of wells- or springs of drinking-water, the bringing into a public place of persons or 'animals afdicted with infectious diseases,, are the prin- cipal crimes of this class. Crimes against p ublic policy are those crimes b y which th e * bi. Comm., decency, morals, or good order of society are violated : The i Bisk a 4, principal crimes of this class are: Bigamy; Blasphemy and Pro- M3i fanity; and Public Nuisances. Bigamy consists in the contracting of a marriage d uring th& 1 Rasa, cr., continuance of a prior lawful marriage relation. The prior mar- s Whart. c. l., C S^ f 55:2627-8688. riage must have been valid or, if voidable, not avoided, and a Arfcbu.jCR . T . Pr., 1023-1033. must not have been dissolved either by death or by divorce. Af- ter seven years absence unheard-from of one party to a marriage, the other may presume the death of the one absent, and may contract another marriage without incurring the guilt of bigamy. The second marriage must have Been so coatracted that it would have been valid but for the existence of the former. Blasphemy is any reproach, oral or written, wilfully cast upon « WhiiH! Of E;, . God, his name, attributes, or religion. Any words calculated' ^^a^^^Ar^S^'cr! and designed to impair and destroy the reverence, respect,' and a-Buii^o.^: confidence- due to God as the creator, governor, and judge of the wo'rldi such as a denial of his being or providence, or any- profane- and'myicibus scofiing at the Holy Scriptures exposing them to 14 ) 8T-S&" 106 1 EufiB. Cr., 81t-407, 2 Whart. C. L., 55 2362-2463. 2 Archb. Cr. Pr., 980-1021. 1 Bish. C. L., IS 392. 426. 540- 542, 1030-10S3. 2 Bish. C L., 56 305-309. 570- 60!),945-949,1124- H58,"'1232-1256. 4 Bl. Comm., 805-219. 1 Bish. C. L., §5 984-1001. 1 Euss. Cr., 750-TO3. 2 Bieh. C. L., 4§ 48-'!'8, 85, 86, {69-9V4. a Archb. Cr. Pr.. 11-17. 1 Bubs. Cr., B98-TO0. 2 Bish. 0. L., , 55 1172-1174. 1 EuBS. Cr., 716-718. 1 Whart. C. L., 651202-1213 2 Archb, Cr, Pr., 134-140. cftnteinpt and ridicule, or any other declarations which tend to subvert religion and piety, are blasphemy. Profanity consists in tl)e use of words which import an imprecation of future divine vengeance. A Public Nuisance is any act or omission which unlawfully annoys or injures the public . An annoyance or injury is public when it is committed in a public place or against a number of persons, and is,. in its nature, calculated to injure or annoy all who come within its influence. The number of persons or fami- lies necessary to constitute the public is at least three. The prin- cipal acts or omissions which are indictable as nuisances are these: Keeping a bawdy-house or house of ill-fame; Keeping a disor- derly-house or house where people resort to the disturbance of the public; Eaves-dropping; Wilful exposure of the person in a public place; Keeping a public gaming-house; Public Drunken- ness; Public Lewdness; Immoral Exhibitions; Carrying on trades injurious to the public; Obstructing public highways or navigable waters. Crimes against tlie persons of individuals are thOse crimes by which the rights of personal security and persona l liberty are violated. They are principally the following: Assault, Battery, and Mayhem; Sodomy; False Imprisonment and Kidnapping. An Assault is a manifestation by acts of a present purpose to do unlawful physical violence to another. Battery is the actual doing of unlawful physical violence to another. These crimes involve the same acts as the private wrongs which are called by the same names. Mayhem is the doing of such physical violence to the person of another as to render him less able, in fighting, to defend himself or annoy his enemy. To put out the eye, to cut off the hand or foot or any part thereof, to break a bone in the hand, to crush the mouth or head, to pull out the tongue, to break the fore-teeth, to castrate a man, to burn or sear a limb so as to ^vither and weaken it, are mayhems. But to cut off the nose or ears, or destroy the back-teeth, are not mayhems. Sodomy is the sexual intercourse of human beings with each other against nature or of a human being with a beast. False Imprisonment is the u nlawful detention of the person of another. It involves the same acts as the tort which is known by the same name. Kidnapping is the unlawful removal of a person from his own state or country against his will. Actual 107 force is not necessary ; if the removal be accomplished by threats 2 Bish.^ c. t., it is sufficient. Nor is resistance on the part of the person kid- napped necessary; the carrying away of a child too young to consent, or of any person while in a state of insensibility and unable to resist or whose resistance is overcome by menaces, constitutes the crime. Crimes against the property of individuals are those crimes by 229-^0."°*'' which the right o f private proper ty is violated . The principal jj't^^'i'oaj; ^' crimes of this class are: Forgery and Counterfeiting; Malicious Mischief; and Piracy. Forgery is the false and fraudulent making or alteration of any gi|,5f8°°^' ^'" writin g which , on its face, imports a legal obligation . Any form ,| J^j'^jgi^' ^■• of instrument by which one person can become legally obligated ^^ ^"^i '^'' to another is a writing subject to forgery. Any alteration of such .j^S'^^o'Voos' an instrument, in any particular whereby its legal effect is varied, i^'^j,. ^ ^ , is a sufficient alteration to constitute a forgery. Such alteration §§495-569, is false when made by any person having no lawful right so to do; and is fraudulent when made with intent that the false in- strument shall be used or received as valid. The crime is com- pleted by the making or alteration of the instrument with intent to defraud, although no one may be in fact defrauded. Counter- feiting is the making of false coin in the similitude of the gen- si^gi^^^*' ^''■' nine. The coin need not be uttered or used as money, but it s(v^2^S7 '^" ^■' must be so far finished as to be capable of such use. It must be base or spurious, and its resemblance to the genuine miist be so close as to be likely to deceive a person using ordinary caution. Malicious Mischief is the wilful and malicious injury or de - ^ gS"°' *^'''' strnction of the property of another . It was anciently held that o? mo^2012' ^■' real as well as personal property was subject to this crime, and „2 Archb. Cr. ^ ^ ^ ' ■' Pr., 708-796. in some modern cases the same doctrine has been declared. The 1 Bisii. 0. L., 55 1005, 1006, current of judicial opinion, however, favors its confinement to 1026,1027. personal property. The injury done must be serious, and must §§955-9(i6. be prompted by actual ill-will or resentment against the owner c. C, '22-30.' of the property injured. Piracy consists in the doing, on the high s eas, of any act of 1 eusb. Cr., robbery or depredation which, if done upon the land, wo uld be a 2 Bi'su. c. l., —I I ■ ^' -i-.ii III — ■ — — I— ■ . ■! I I * ■ I ■■ II . — — ~ — -__„__,-____ gg 1017—1023 felon y. The high seas are the uninclosed waters of the ocean 1 Abbot u.s. outside of the general line of the coast. Tide-waters, flowing in 42™"' * ^' harbors or basins that are enclosed between headlands, are not high seas. But the raoutb of a river a mile and a half wide, or a road- 108 ,Bte;ad open to, the sea and not land-locked, is the high sea. In this country the crime is chiefly, if not altogether, a statutory one, :^iid the description of its limits and characteristics;is to-t>e .sought in the Acts of Congress. 1 Eus8 Cr AnAttep pt consi sts in the inte nt to commit a. crime, combined ^'whart V L "^^^^ ^^^ doing of some act adapted to, but falling short of, its i^^^c'-L actual , commission. An g,tteinpt always includes a speciflc in- *S& s«5^tei*693. tent, without which the act done would either be.no crime, or a different crime fi-om that attempted. This intent, therefore, jiiiist be both alleged and proved. The act done must be, in its nature, •adapted to accomplish the crime intended. It is not necessary :tbat the. intended crime should have been actually possiblejto the one attempting, provided it were apparently so; for if it were evidently, in its own nature, impossible, the intent to commit it .could not legally exist. Thus, it has been held that a boy under fourteen cannot intend to commit rape, or a forger intend to de- fraud, a person or corporation which does not exist; while, on the other hand, it has been decided that there may be an attempt, to pick a pocket though the pocket contains nothing, or an attempt to kill although the intended victim is not within actual reach of the weapon. Thu intent must subsist during the entire commis- sion of the act, for only such a part thereof is an attempt as pro- ceeds from the intent to commit the crime. 1 Bish. c, L., A Solicitation is the inciting or persuading of another to coin- mit a felony or other serious crime. The solicitation is. complete though the person solicited refuse. OPl AFTER VI. Qj TPB Relation .op the Criminal Actor to the Criminal Act. I Bi. comm., Criminal actors are of two classes, according to the relation ^^^%. p. c, which they sustain to the criminal act; Principals and Accegso- ■'^I'^pulsi^'cr,' "s^- A principal is one who participates in the commission of *?^art.c. L. *^ criminal act. An accessory is one who does not partioip,ate ^^r Archb. Or. Ji-Ae Commission of the criminal act, but who concurs in or ^I'KBh^'c L •sections the act and in some way contributes to its commission j§ 691-645, .Qj. attempts to prevent its punishment. 109 This distinction between principals and accessaries is recog- nised oiily irj a-egard to felony. In treason all who ai'e engaged .s'ltra^ga/'" ^" are principals , -whether they merely procure and encouirage -the treasonable act to be done or actually participate in its coni- .mission, or harbor or assist -the traitor; while those who conceal the act after its commission are gu,ilty oi misprision. In misda- jneanor also, all, of'Whose guilt the law takes notice, are princi- pals. i Principals are of two kinds : Principals in the Titst Degree, ■and Principals in the Second X)egree. A principal in the first degree is one who commits the act either directly by himself or through an innocent agent. Where several acts are necessary to ^ Bish. c. L. complete a crime, and each act is done by a different person, each 5 598. of such persons is a principal in the first degree. "Where one commits a criminal act by means of an inanimate object, or by means of another person who is without criminal intent, he is -.princjipal in the first degvee, eyen though absent ^at the do^pg of the a<5t. A principal in the second degree is one who does not himself commit the act, but who is actvially or constructively , present. at itg commission, aiding and abetting therein. ,Any assistapoe or readiness to assist, however manifested, is an aiding and abetting. A person is actually present at the commission, of a crime when iBish. c. l., ^ ', , , , . ■ .,■,•,-•' §§601,602. he 18 at the place where such ci;ime is committed, while it ig being committed. He is cpnstructiyely present when he is so situated with reference to the p^pe whei^e the criine is commit- ted, wbJle it is being cqnimitted, ^s ,to ,be able, if necessary, to personally assist tlierein. Accessories are also of two kinds : Accessories Be^pire rthe Fact, and Accessories After the Fact. A;n ^ ^ccessory before the fact is one who dqes not participate in the commission pf the act, but who concurs in and contributes to its commission. Any ;0ne who procures, adyises, or encourages another guilty person to cornmit a criminal act is suqh an apcesspry, whether he be tbe .pi-iginal contriver of the crime or not. But the crime must be 5 gj^x '^'^^ '^" .actually committed ; for wliere tiieive is no act there can be no accessory. An acqesspry after the fact is pne who does not participate in "the commissipn ijf the act, but who sancticns it after it has been oommitted apd ^pdeavors to prevent its pupishment. Any pne no who knows a crime to have been committed, and, with such knowledge, in any manner assists the criminal to escape from justice, becomes thereby an accessory after the fact. A father may not assist the son, nor may the husband assist the wife. If a wife assist her husband she is pi-esumed to do it under coercion and is not an accessory. A person does not, however, become an accessory by acts of charity or mercy to a criminal, such as feeding him when in prison, or procuring bail or counsel for him. An accessory, whether before or after the fact, cannot be tried, without his consent, before the trial and conviction of his principal. 4 Bl. Comm., 889-406. 1 Bish. C. P., 55 1-9, 3S-69. IChittyC.L., 11-72. 1 Rnss. Cr., 692-635. 1 Whart. C.L., §5 1030-1042. 1 Archb. Cr. Pr., 87-147. 1 Bish. C. P.. 55 612-681. 1 B. & H, L. C. C. nT-«28. CHAPTER VII. Of CjaiMiJiTA L Feocedpbe. The acts which enter into the prosecution and punishment of crime, taken collectively, are known as criminal procedure. In its general character this procedure is everywhere the same, though its details are largely dependent upon local usages and statutes. It consists of the following parts or stages: (1) Ar- rest; (2) Commitment and Bail; (3) Prosecution; (4) Process; (5) Arraignment; (6) Plea and Issue; (7) Trial and Verdict; (8) Motion for a New Trial; (9) Motion in Arrest of Judgment; (10) Judgment; (11) Reversal or Vacating of Judgment; (12) Pardon ; (13) Execution. Many of these parts may not, and the whole cannot, be present in any given proceeding, nor is it neces- sary that those which do occur should succeed each other in the order above mentioned. In discussing them only the general rules in reference to each can be ^examined, and the student is referred to the authorities, and especially to local statutes, for exact and detailed information. An arrest is the apprehension, or taking into custody, of an alleged offender in order that he may be brought to trial for the crime. It may be made: (1) By an officer or indifferent person with warrant ; (2) By an officer or private person without war- rant ; (3) By any person under a hue and cry. A warrant is a written mandate, issued by a proper magistrate and directed to a proper officer or indifferent person, command- ing him to arrest the alleged offender and bring him before the Ill proper authority to toswer for the crime. It should describe the person to be arrested, the crime for which he is to be arrested, the tribunal before which he is to be brought, the person by whom it is to be served, and be dated and signed by the magis- trate who issues it. Armed with this warrant, the person to whom it is directed may arrest the alleged ofiender, whoever he may be, at any time or place, and, in many cases, may break i Bi«h. c. P., open the doors of any house when such breaking is necessary in order to effect the arrest. An officer may arrest without warran t: (l) When a felony or any crime in violation of the public peace is, at the time of the arrest, actually being committed in his presence; (2) When he has probable cause for believing that a felony has been commit- ted and that the person arrested is the felon. A private person may arrest without warrant: (1) When a felony or any crime in violation of the public peace is, at the time of the arrest, being committed in his presence ; (2) When a felony has actually been committed, and he has probable cause for believing that the per- son arrested is the felon. A hue and cry is a general alarm raised by a magistrate or i Arehb. cr., other officer, and in some cases by a private person, for the pur- '' suit and capture of a felon or of one who has committed a dangerous assault. All persons who are called upon to assist in the arrest under a hue and cry are bound to do so, and each of them has the same authority, and may employ the same methods to effect the arrest, as an officer acting under a warrant. Actual physical prehension of the body of the accused is ne- i sieh. c. p. cessary to constitute an arrest in all cases where he does not H6H-820. knowingly and voluntarily submit himself to custody . Yet any act of taking, > such as a touch with the end of the finger or the locking up of the accused in a house, is a sufficient prehension and the arrest is not vacated though the arrested person imme- diately escape therefrom. It is the duty of the person makino' the arrest to disclose his official character and purpose to the accused, unless the circumstances sufficiently declare it, and to inform him, if he desires it, of the crime with which he is charged, and of the tribunal before which he is about to be conveyed. It is also his duty to use no unnecessary violence, and, as soon as he reasonably can, to present the accused before the court havinrr cognizance of the offense. ■ Wli^re a ertiaintfl ffees into a state- other than that in -which ' the crime vyas committed, no ordinary methods of arrest can reach hini. The state, iilto which he flees, has no jurisdiction over him, ' because the crime was not committed against its people or its- laws; and the state, whose law has been violated, is powerless^ because a warra'nt issued by its magistrates is valid only within ConSt.-U: K i''® territory. To meet this difficulty the Constitution of the Art. IV, Sec. u. United States has provided that such fugitives from justice shall be delivered, by the authorities of the State into which they flee,, to the authorities of the State where the crime was committed, upon demand of the executive authority of the latter State. This L^°§'79?' ^°'' demand is called a requisition. By similar proceedings, under L^s^ul^si^tfi'. ^he extradition treaties of the United States, persons who have Extradition. committed heinous crimes within the territory of the United. States, and have fled into the territory of certain foreign states;, may also be arrested and returned. 1 chittyc L When the magisti-ate, before whom the alleged offender is pre- ''I'^Archb Cr ^^n'^d, has final jurisdiction over the offense, the trial may either M9^225 ^'*^'^^*'' be immediately begun or be postponed until a future day^ M'B^Tife'*^" ^'' Wli®'"® ^^^ magistrate has not such jurisdietion the examination c^c^'smJbo'^' "^f *'^* evidence may be postponed, or it may be proceeded with and' the accused discharged or held to answer as the facts re- quire. If the trial or hearing is postponed, or if after a hearing the accused is held to answer, he must in some way be detained in^ custody until the trial is at an end. This is accomplished either by commitment or by bail. CoinmiUnent is a written mandate, issued by the magistrate before whom' the alleged offender is presented , and directed both to a- proper officer and to the keeper of a lawful place of impris- onment, commanding the officer to carry and deliver, and the keeper to receive and safely keep, the body of the accused during the time- specified therein, or until' he is released by due course- of law. In pursuance of this mandate the alleged offendei', if not duly bailed, is taken to such place of imprisonment and there confined. A commitment is also called a mittimus. It must describe the alleged offender by his full name or the name he gives as his;, it must set out with convenient certainty the crime with which he is charged; and it must be dated and signed by the magistrate who issues it. Sail is the delivery or bailment of the arrested ' person to per- lis tain sureties u pon their giving sufficient security for his appear- ance in court. The person so delivered or bailed is thereafter in the custody of his sureties, and may, at any time and at any place, be arrested by them and surrendered to the court in dis- charge of their liability; or they may sue out a warrant, called a bail-piece, and upon this warrant he may be arrested by the person to whom it is directed. In all bailable cases the accused has the right to be enlarged on reasonable bail at any time between his arrest and his final sentence. If he appear in court at the time specified his sureties are discharged. If he fail to appear the security given for his appearance becomes forfeited, and may be appropriated or collected in the same manner as any other property belonging or due to the state. Prosecution is the formal accusation of the alleged offijnder. It , ichittyC.L., , __ n 161-336. may take place before the arrest, and a warrant maybe issued iwhart. c.L., ■' . T r T S§sn-5i2. thereupon; or it may be made after the arrest and when the i Archb. Cr. accused is brought into the court which has final iurisdiction i'sisb. o'. P., §§40-411 720-764 over his ofiense. It is of three kinds: Information; Indictment; and Presentment. An information is a written accusation pi'esented under oath by a proper public prosecutor to a court having -jurisdiction of the offense c harged therein. This is the mode of prosecution usually adopted in cases of small magnitude, though in some States it is used almost to the exclusion of evei'y other. An indictment is a written accusation presented by a grand - jury, under oath and upon the suggestion of the public prose - cutor, to a court having jurisdiction of the offense charged there - in. A grand-jury is a body of men legally selected from among the people of a county to inquire what offenses have been com- mitted therein. When assembled in court they are duly sworn and instructed in their duty by the judge. An indictment, fram- ed by the public prosecutor against the alleged offender, is then laid before them together with the evidence in support thereof. If twelve of the grand-jury agree that the evidence is sufficient to put the accused upon his trial, the foreman endorses the in- dictment as a true hill, and it is returned to court in order that tlie offender may be tried thereon. If twelve do not agree that the evidence is sufficient, the indictment is endorsed and returned as not a true hill, and the accused is either discharged or held to await action on a new indictment. 15 114 IChittyC. L.. 203-211. 1 Whart. C. L., 5§ 233-249. 1 Arclb. Cr. Pr., 261-264. 1 Bieh. C. P., IS 117-130. IChittyC.L., 177-202. 1 Whart. C. L., 55 277-284. 1 Archb. Cr. Pr., 230-264. 1 Bish. O. P., JS 63-116. Apres entment is a written accusation -presented by a ^rand - j gi-y, under oath and of their own motion, to a court having j'uris - diction of the 'offenses charged t herein . It is rarely employed except in cases of public nuisance or of some dangerous and wide- spreading evil. Upon the preferment of such an accusation the court usually orders an indictment to be framed, and issues a warrant thereon for the arrest of the alleged offender. ' Excejit that one is presented by the public prosecutor and the other by a gi-and-jury an indictment and an information are substantially the same. Each must contain a statement of all the facts and circumstances, necessary to constitute the crime, with such particularity and certainty that the accused may know the nature of the crime with which he is charged and what he has to answer, that the jury may be warranted in their conclu- sion of guilty or not guilty upon the premises delivered to them, that the court may see upon the record a definite offense upon which judgment may be rendered, and that the record of convic- tion or acquittal may be pleaded in bar to a subsequent prosecu- tion for the same offense. In order to attain this degree of par- ticularity and certainty the following rules have been established: The name of the accused must be stated at length, if it be known, and should be repeated in every distinct allegation. If he be known by different names, they should be stated under an alias. If his name be not known he should be described under some name, and if he plead under that name, it will be taken as his true one. His place of residence should also be stated if known; if not known, he may be described as a transient per&on. Any mistake in these matters can be taken advantage of only by plea in abatement, which will result in the correction of the error. The venue, or place of trial of the accused, must be in the same county where the crime was committed, and tliis must ajD- pear on the face of the indictment. If it does not so appear the indictment may be quashed for want of jurisdiction, or a plea to the jurisdiction may be successfully interposed. It will also be invalid on demurrer, motion in arrest of judgment, or writ of error. If the mortal blow in murder be given in one county and the victim die in another, the venue must be laid either in the county where the blow was given or in that where the death occurred. If goods are stolen in one county and carried into another, the venue may be laid in either. 115 When the criminal act consists in some injury to property, the i whart. c. L., property injured rnnst be particularly described . In arson and ^ i Arciib. , a. burglary ihe house, the town in which it is situated, the name 879-2S2. ^^^^•'^ of its owner, and other particulars suiBcient to distinguish it from jj^gj-gg^' *^' ^'' every other house, must be clearly stated. In theft and robbery the articles stolen must be described in detail, with their value and the name of the owner. If his name be not known the in- dictment should so declare. Some particular day, month, and year must be alleged as the . ajL^'*^ ^' ^' d^te of each particular independent act involved in the crime sxIaJ'o™*'"'^' charged, and this date must show the act, as allesjed, to have „i -^P'S- **• ' ^ " _ _ . ° -Pr., 275-279. been committed within the time allowed by the statutes of limi- i Bish. c. P., „, . . ' " . §§237-260. tation. Where the crime is created by a statute it must also be laid as committed after the enactment of the statute. In burglary the act must be alleged to have been at or between such hours as are within the night season. In murder the day of the stroke and of the death must both be stated, and the death must appear to have been within a year and a day after the mor- tal blow. The party injured by the crime must be described by his name , i Whart. o. L., ■'-—- — : 5- ago^aeo: II known ; otherwise as a person unknown . An indictment may contain one or more counts. Each count icwttyC. L., ■ ' ~_ 248-255. must be of itself a full and complete charge of crime and be iwhart. c.l., §§ 414-428. sufiicient to sustain a verdict, for no number of defective counts i Ai'ciib. Cr. , 1 • T -ir 1 . Pr., 308-314. can make a sood indictment. Matter stated in one count may i Bish. c. P., by reference thereto, without re-stating it at length, be made a part of another count. Different counts for different offenses may be joined in one indictment in cases of misdemeanor, though not in felony; but two distinct offenses cannot be charged in the same count. If^two or more distinct offenses are joined in one count, the count is bad for duplicity . If material allegations in a count contradict each other, the count is bad for repugnancy. If the allegations are in the disjunctive, or in any other way fail to specify precisely what crime was committed, the count is bad for uncertairitij. Immaterial allegations are surphisage, and in- consistencies therein do not vitiate the count. If one count in „\,S'!,oi *^- ^•' an indictment be good, a verdict on such count will be sustained though other counts are defective. Different offenders may be joined in one indictment where they ^^^^^^'^'' are alleged to have been joint actors jn the commission of the .J S?^' '-'■ ■'^■' 116 1 Arohb. cr. Crime . Different persons may also be prosecuted for different 'i'Bish. c. p., offenses of the same nature in the same indictment, but there lis, ■ can be no joinder of offenders wliere the crime is, in its nature, several. leL'iw'aa^'^s Each and every a ct necessary t o constitute the crime mu stjj^ *JVh^' t c i' so particularly and accurately stated as to fix and define, beyond 55 285-396. any doubt, the exact charge of -the state against the accused. If Pr., 282-299. the crime is an offense at common law only, the common law 1 Bleh. c. P., . T ■ §5 261-385. forms of indictment should be followed. If it is created or modi- fied by statute it is sufficient to allege it in the words of the statute, where such words contain a full and complete descrip- tion of all the acts necessary to constitute the offense; otherwise, in addition to the words of the statute, such words must be em- ployed as do define and specify the precise nature of the crime. The statement of the acts must be positive and assertive, not laid with a whereas, or by way of recital, or argumentatively. .J CMttyc.L., Technical words, where necessar y, must be used. In all crimes 239-245. II ■ H ill 1 m il— — MJMMQ— ^BgL , ! ^ I Mi llllll l ll l — MW— B1» 1 ^hart. c. L., involving violence or a breach of the peace the act must be al- «^ ^}^'^\ ^- leged to have been committed loith force a nd arms. In felonies Pr., 30O-3O3. ° ~-"~— ^- - • — ~ — it must be alleged to have been Aone feloniously ; in treason, trait - orouslxi; in burglary, hurglaripusly ; in robbery, against th e will; in piracy, piratically ; in murder, toith malice aforeth ought^ Also in murder it must be charged that the accused did Mil and murder ., and, in murder by wounding or beating, t hat he stnuik ^ and that the wound was mortal. In rape it must be alleged that the accused ravished and carnally htiew . In indictments for mayhem it must be stated that the accused ^t'(^ maim, and in those for barratry that he is a common barrator . For these words and such others as, at common law or by statute, are made tech- nically descriptive of the whole crime or of any element therein, there are no substitutes, and an indictment, from which they are absent, cannot be sustained. 1 Chitty c. L., Process is a warrant issued for the apprehension of the offend- 837-870. — r -~-~^-. ~-JiC_™_ — _ 1 Archb. Cr. er alter prosecution in cases where he has not already been ar- Pr 343-360 ' ' i ■ i V iiii ~ I§lte£tj;!li.!k}L2HS3iJM!2i!®*^'''^^'"''- This warrant and the arrest 1 thereon are subject to the same rules as those which govern a war- rant and arrest before prosecution. 1 Chitty c. L., Arraignment is the formal demand upon the accused for his 1 Whart. c. L., answer to the pro secution. A person accused of any crime, fot 580-533. — -r~; ^. ~ — , . „. , , 1 Archb. Cr. which a corporal pumshment may be inflicted, must be present 117 in court during all such proceedings as are material to his case, and, if the charge against him be of felony, he must both appear and plead in person. Whenever he is to be ai-raigned and plead in person, he is called to the bar of the court during its open session, the indictment is read to him, and he is required to state whether he is guilty or not guilty of the offense charged therein. If he makes no answer to this arraignment, he is said to stand mute. This may occur either through his obstinacy, or because he is dumb, or is insane, or is ignorant of the language in which the proceedings are conducted. When an accused stands mute through obstinacy, or is dumb, the court will order a plea of not guilty to be entered. When he is ignorant of the language, an interpreter will be provided to acquaint him of the charge and inform the court of his answer. When he appears to be insane, a jury will be appointed to try the question of his sanity, and, if they find him to be of an unsound mind, he Mali be remanded for safe-keeping. In some States it is the practice, before sufferin g the accused to answer, to provide him with counsel if he i s himself unable to procure any , and where he is an infant, and without a guardian . to appoint for him a guardian ad litem. . A motion to quash the indictment, if to be made at all, should also be made before or at the time of the arraignment, though the court has power to allow such motion at any time before verdict. This motion is a re- quest, addressed orally or in writing to the court, praying that no further proceedings be had upon the indictment. It may be based either upon matters apparent on the face of the record or upon extrinsic matters if properly brought before the court. A plea is the answer made by the accused to the charge con- tained in the indictment. Pleas are of five kinds: (1) Plea of Guilty; (2) Plea to the jurisdiction; (3) Pleas in abatement; (4) Demurrer ; (5) Pleas in bar. A plea of guilty is the formal acknowledgment of the accused in open court that the allegations of the indictment are true . It is not necessarily a confession of guilt; it is merely an admission that he has done what is legally and properly charged against him. If the indictment is bad, the admission has no effect; if it is good, the admission is a waiver of the trial and the court may forthwith proceed to judgment. A plea to the jurisdiction is an allegation that the court before 1 Bish c. p., §§ 682-692. 1 B. & H. L. C, 0., 433-439. 1 BiBh. 0. P., 5§ 1008-1018. IChittyC. L., 299-304. 1 Whart.C. L., 5§ 518-524. 1 Archb. Cr. Pr., 336-341. 1 Bish. C. P., §5 443-453. IChittyC. L., 432-480. 1 Whart.C. L., §§ 526-691. 1 Ai-chb. Cr. Pr., 365-383. 1 Bish. C. P., W 4la-421, 429- 482. 1 Bish, C, P,, -^414. 118 1 Bish. 0, il 416-418. 1 BiBh. C. P., |§ 456-463. 1 B. & H. L. C. C, 884-288. ICWttyC.L., 452-463. 1 Whart. C. L., S's 539-591. 1 Archl). Cr. Pr., 360-373 1 Bish. C. P., 55 571-68T. 1 Bish. C. L., 5§ 824-897. 3 Greenl. Ev., 1 B. & H. L. C. C, 513-542, '^hll?]Lilj?_£g:lg. J^ pend ina ; has noaathor it^rt o hear and determinfi the same . When this want of jurisdiction appears on the face of the record, the indictment may be quashed on motion. Where it depends upon extrinsic circumstances, advantage can be taken of it only by plea. A plea in abatement is an allegation that the proceedings are void by reason of some defect or irregularity therein . This plea may be based either upon matters apparent on the record or on extrinsic facts. A demurrer is an alleoation that the acts described in the in- dictment do not constitute a crim e. It may be based either up- on matters of substance or upon such formal matters as are essen- tial to the sufficiency of the indictment. When a demurrer is sustained a new iadictment must be presented, or the accused must be discharged. If it is overruled, judgment will go against him as on a plea of guilty, except in cases of felony. A plea in bar is either an allegation that the averments of the indictm ent are untrue^ or it is a denial that the accused is liable to punishment for the acts therein described . Pleas in bar are of four kinds: (1) Former conviction; (2) Former acquittal; (3) Pardon ; (4) Not guilty. The plea of former conviction, (called also autrefois convict,) is an allegation that the .accused has already been convicted of the offense charged in the indictment. It is a rule of law that no person shall be put in jeopardy more than once for the same criminal act; and when such jeopardy is evidenced by a convic- tion or acquittal, that conviction or acquittal may be pleaded in bar to any subsequent prosecution for the same offense. This plea must set out the record of the former case, and must aver that the accused and the crime were the same as in the present indictment. It must also appear that the former conviction was regular and was upon a sufficient indictment. The offenses are the same when the evidence necessary to support the second indict- ment would have been admissible and sufficient to procure a legal conviction on the first. A conviction of a minor offense is a bay to a prosecution for the same act, charged as a higher offense , when the evidence necessary to support the latter indictruent was necessary and sufficient to sustain the former. A conviction of a higher offense is a bar to a prosecution for the same act, charged as a lesser offense , when the evidence necessary to sup- 11^ J)ort the former indictment is necessary and sufficient to sustain the latter. But the offenses must be the same in law as well as in act, for when the same act constitutes two or more distinct offenses a conviction of one will not bar a prosecution for the others. A former conviction or acquittal, obtained by the fraud- ulent act of the accused, will not be a bar to another prosecution for the same offense. A plea of former acquittal , (called also autrefois acquit), is an allegation that the accused has already been acquitted of the par- ticular offense charged in the indictment. This plea is based on the same principle, and governed by the same rules, as that of former conviction. A plea of pardon is an allegation that the accused has been re- c_ 1 . _Q — ^ ' , . ; : : ^, IChittyC. L., leased by competent authority from liabili ty to pros ecution and 466^70. , * ' ' ^ ' ^ — ' ' ' " ^ Archb Cr p unishment for the offense charged in the indictment . The pow- Pr., 374-380. er to pardon offenses against the laws of the United States, except §§588-603. ' '' in cases of impeachment, is vested in the President. In most of the States the governors have the same power in regard to offenses against the laws of their respective States. A pardon is a matter of pure discretio n , and may be ei ther absolute or conditional. It takes effect only from the delivery of the charter of pardon to, and its acceptance by, the offender, and its operation is limited to the particular offense which the charter describes. A plea of pardon must set out the charter and make profert of the same, and the charter itself, duly verified, must be produced in court. A plea of not guilty denies all the allegations in the indict - lOhittyC.L,, rnent as well as the sufficiency of the alleged matters to constitute i Bis'ti. o. p., a crime . Under this plea, any excuse or justification may be shown, or any other matter which does not admit the existence both of the criminal act and the criminal intent. A trial is a legal investigation of the issues created by the i chitty o. l., prosecution and the plea . No trial upon the merits c^n be had ^l^whart. o.l. except under the plea of not guilty , and this trial is usually con- ^V Arcifi?' cr. ducted before a petit-jury, acting under the direction, and with ^'i'lish^^c. p. the assistance, of the court. A petit-jury is a body of men legal - ly selected from the people of the county , and duly impannelled and sworn to try and decide the issue between the state and the accused. Before this jury are sworn, both the state and tlie accused have a right to object to such of them as, for sufficient reasons, ought not to participate in the trial of the case. An objection so made is called a challenge. S 755-843. 1^0 IChittyC.L, challen ges are of two kind s: (1) Challenges to the afray; and KDQ KK't ■ " ■ ^ " .fc^iiiiiiMi I II n »- ■ ^1 II nu ll II ^^^^^— 2 Whart. c. L., (2) Challenges to the polls. A challenge to the array is an ob-^ 1 Archb. "cr. jection made to the whole body of jurors, on account of some VBish^^ti. p.. defect in their summons or of some partiality in the officer who ,§ 764-806. selected them. A challenge to the polls is an objection made to an individual juror. Challenges to the polls are either for cause, as on account of some personal bias or disqualification on the part of the juror, or peretnptori/, as on account of some distrust or dislike on the part of the challenger. The number of peremptory ' challenges is usually limited by law . The challenges being completed and the jury sw;orn, the in- dictment together with the plea is read to them, and the trial begins. The proceedings which constitute a trial are of four kinds: (1) The production of evidence; (2) The arguments of coun⪙ (.3) The charge of the court; (4) The deliberations of the jury. . I'^'WyC-l'' The general rules whic h govern the production of evidence 1 Whart, c. L., are the same in criminal as in civil cases . The principal special ^^ 4J?^'?,-o '^^- rules applicable to criminal cases are the following: Pr., 384-508. "^^ ° 1 Bish. c. P., The state must prove affirmatively, and beyond a reasonable 5H83-639. !-- — - — — : — -: f-' . ■' doubt, every material allegation in the indictment; The testimony must be such as to exclude every reasonable hypothesis but that of the defendant's guilt; Circumstantial evidence is equally admissible, and may be equally conclusive, with direct evidence; In ca pital cases the evidence must be that of two competent witnesses or its equivalent; 2 B. & H. L. In homicide , the declarations of the victim, made under the c. c. 393-408. apprehension of impending death, are admissible to show the cause of the death and the person of the slayer; 2 B. & H. L. The volu ntary confession of the accused, when made without c. c, 484-«30. £gg^j, Qj. j^gpQ of favor, is competent evidence against him; An accomplice is admissible as a witness against the accused , though the jury should be instructed not to oonvict on his uncor- roborated testimony. The evidence of one accomplice is not corroborated by that of another; 2 B & H L Evidence of the character of the accused may be given in hia ■c. c, 383-358. beha lf, but never against him except in reply to such evidence first introduced in his favor ; Th e accused is always presumed innocent till be is proved to 121 be guilty, and if, Upon the whole evidence, there is reasonable doubt of his guilt, he is entitled to an acquittal . The arguments of counsel take place in the order prescribed by statute or by local usage. At the opening of the case , and icwttyc. l., before the production of any evidence, the counsel for the state ^^i TrchbJ' Cr. may, and generally does, explain to the jury the nature of the ^'-'^^^'S**- charge and the testimony which he intends to bring forward to sustain it. The counsel for the accused, before introducing his evidence, usually explains, in the same manner, what he himself expects to prove. The remaining arguments consist of, and should be confined to, a discussion of the evidence and the law aj^plicable thereunto. In some States the counsel for the accused , and in others the counsel for the state, has the right to close. The charge of the court to the jury consists of an explanation esa.'^'""^ ^' ^'' of the law gove rning the case, and of such a review of the evi- p/ ^^^^^' ^'^' dence as may be necessary in connection therewith . If counsel on either side desire that particular propositions should be stated, as law, by the court to the jury, it is their duty to inform the court of their desire in proper season. If any mistake is made by the court in stating the law to the jury, the attention of the court should be called thereto forthwith and an exception noted. The deliberations of the jury upon the law and the evidence i CMtty c. L., « il—i 682-BS5- are conducted in private, while thev are under the charge, though i Archb. Cr. not in the presence of, an officer of th e court . If, after due con- i'Bish. o. P., 5^ : ~ -*— ■ ' TT^ ^, ' , T §§8S0-«38. sultation, they cannot agree upon a verdict, tliey may be dis- charged, and the accused remanded for another trial. If they are in doubt upon any question of law or fact in the case, they may call upon the court for further instructions. When they are all agreed, either for conviction or acquittal, they return into court, their names are called, and the foreman delivers their con- clusion of guilty or not guilty upon the matters alleged in the indictment. This conclusion is called the verdict, and when once i chitty c. l., pronounced by the foreman, ratified by the acquiescence of the ^^rArchb. Cr. other jurors, and duly recorded, it cannot be altered or ^I'lish^^c, p., amended, nor can any juror dissent therefrom. When the jury cannot agree to a general verdict, as that of guilty or not guilty, they may render a partial verdict, co nvicting the accused on one count in the indictment, or on one part of a divisible count, and acquitting him as to the residue; or they may render a special verdict, finding thg facts of the case, and leaving the legal infer- ence from those facts to the decision of the court. 16 J 839-843. 123 IChlttyCL., 851-663. 2 Whart. C. L., 8S 3043-3046, 3053-3235. 1 Arclib. Cr. .Pr., 610-674. 1 Bish. C. p., iS 844-855. IChlttyC. L., 694-722. 1 Archb. Cr. Pr., 674-710. 1 Bish. C. P., M 856-880. IChlttyC.L., 743-778. 2 Whart, C. L., 5§ 3047-3052. 1 Archb. Cr. Pr., 717-731. 1 Bish. C. P. 5§ 933-948. 4 After a verdict of conyiotion^ and before judgment or sentence by the court, ther e are two procee dings of which the accused, if he iiave occasion, may avail himself. These are: (1) Motion for a New Trial; and (2) Motion in Arrest of Judgment. A motion, for a new trial ma y be based upon any material irregularity in the course of the ijrooeedings, such as defects in summoning or impannelling the jury, the misconduct of the jury, misrulings or misdirections of the court, the discovery of new and material evi- dence, the illegality of the verdict, or its non-conformity to the evi- dence, or the invalidity of the verdict itself. If this motion be granted, the accused will again be put upon his trial on the same indictment, but before another jury. A motion in arrest of judgmen t may be based upon any ma- terial defect which appears on the face of the record, and which makes the proceedings apparently erroneous, such as repugnancy or uncertainty in the indictment, or variance between the indict- ment and the verdict. If the judgment be arrested upon mo- tion, all the proceedings will be set aside, and judgment of ac- quittal given; but this judgment will be no bar to a subsequent prosecution. If neither of these motions are made, or having been made are denied, the court proceeds to judgment. Judgment is the order of the court directing the kind and measure of punishment to be inflicted on the accused. This judgment must be pro-, nounced in open court, and must be in conformity with the law prescribing the punishment. The court has power over the judgment after it has been pronounced, and may respite or suspend its execution for any reasonable cause, as if the offender should become insane or desire to apply for a reprieve or pardon. The court also has power to correct or change the judgment at any time during the same term of court and before the execution of the judgment has begun. There are two methods by which, even after judgment, the accus ed may be relieved against any error or mistake in the proceedings, whereby injury has been, or is about to be, inflicted on hiin . These are: (1) By Reversing or Vacating the Judg- ment; and (2) By Pardon. A judgment may be reversed on writ of erro r for any mistake of law apparent on the face of the record. This writ is a matter of right. It does not lie until final judgment has been rendered , and does not reach preliminary 123 matters and such as are pleadable only in abatement. But er- rors which would be fatal on demurrer, or on motion in arrest of ' judgment, are grounds of reversal upon writ of error. A petition for a neio trial may sometimes be brought after judgment and, if it be sustained, the I'udgment will be v a cated and a new trial granted . This petition, when available at all under the local usage, will lie for the same causes as a motign for a new trial. But where the matters on which it is based wer6 known, or by the use of reasonable diligence could have been known, to the accused before judgment the petition will be de- nied. Both the writ of error and the petition for a new trial are, in form, independent proceedings. A petition for a pardon is addressed to the executive or other pardoning power, and may be based upon any matters which render the execution of the judgment inexpedient or inequit- able. These different measures being untried or unsuccessful, the iCMttyc. l., : . . — -== ; — ; i— T?9-814. iudgment is carried into effect by execution . JE}xecution is the i Archb, Cr. J a — — —i _ Pf^ 732-744. infliction upon the offender of the punishment imposed and or- i Bish. c. P., dered by the court. Where the punishment is a fine , the courj; directs, in the judgment, that the offender stand committed till the fine be paid; a nd thereupon, in default of payment, a mittimus will issue, *nder which the offender will be imprisoned till he paj-s the fine, or is discharged by due course of law. When the punishment is imprisonment, he will be confined under a similar mittimus during the time specified in the judgment. In both these cases the provisions of the mittimus must be strictly complied with. It must be executed only by the persons to who m it is directed, the confinement must be in the place and manner speci - fied , and at the end of the term of imprisonment the offender must be released. Any violation of these provisions will subject the person violating them to an action for false imprisonment. In capital cases there are two causes which operate to delay or i ChUtjC.L., prevent execution. When a woman is sentenced to death while pregnant, or becomes pregnant after such sentence, the court by whom the sentence was pronounced, upon suggestion of the preg- nancy, will cause an investigation to be instituted, and, if the i Bish. c, p., pregnancy be proved, will stay the execution of the sentence till the child be born. If, after the birth of one child, a second pregnancy occur, a further stay will not, according to the pre- 769-762. 5 867. 124 vailing rule, be granted. Also, when a person under sentence of death becomes insane, or where the fact of his insanity first becomes apparent after sentence, the execution will be stayed till his recovery. Execution, in capital cases, is usually done by a warrant, issu- 1 Chitty c. L., ing from the court in which the judgment was pronounced, and directed to the sheriff of the county, commanding him to hang the offender by the neck till he be dead. This warrant will pro- tect only those to whom it is directed, and will protect them only when they strictly follow its comnaands. If an unauthor- ized person take upon himself to execute a death-warrant he will be guilty of murder. If the authorized officer execute it in an unauthorized manner, as by changing the mode of death, he will be guilty of manslaughter, if not of murder. The warrant must also he fully executed, and if, through any accident or mistake in the mode of hanging, the offender should revive, he must be hanged again and until his life is actually extinct. END. iisrr)Ex Abahdonmbnt, title by, Abatkhent of nuisances, . ouster by, plea of in criminal cases, Abduction of a child or ward, remedy for, wife, . remedy for, Accession, title by, AccBSSOBiES in crime, before the fact, after the fact. Accomplices, evidence of. Accord and Satisfaction, Account, action of, ... AccBBTioN, title by. Acquittal Fokmer, Actions, defined, classes of, ... real, personal, mixed ex delicto, ex contractu, of account, assumpsit, covenant, . debt, detinue, disseisin or ejectment, foreign attachment or garnishment, replevin, . scire facias, trespass, . on the case, trover, on statute, Adhering to the Public Bnbmt, 21 57 48 118 54 60 53 60 31 108 109 109 120 57 63 21 119 58 58 58 59 59 59 59 63 61 62 63 61 59 62 60 63 60 60 60 62 128 ADMrNlsTRATOR, retainer of debt by, . title of to property of decedent, Advo^wson, defined, ... . . Afpkat, . . . . Agency, contract of, . AflBNTS, defined, . general and special, . powers of, . . AiiENATiosr OF Estate in Fbe Simple, Aliens defined, ... cannot commit treason, duty of to state, rights of from state, .Allegiance defined, ... right of citizen to change. Allodial Tbndkb, .... Alluvion, Animals FER.a; NATDB.a), title to increase of, . Animus Fukandi, defined, •■ Annuity, defined, . .Apprentices, rights and duties of, Arbitration and Award, . Arguments, of counsel in criminal trials, Arms Carrying, when a crime, . ..Arraignment, . . . . . .Arrest for Crime by warrant, . without warrant, by hue and cry, by private person, escape from, . .Arrest of Judgment in criminal cases, ■Arson, defined, . burning in, . . . unlawfulness of, house in, . . ownership of, . Asportation of Chattels, remedy for Assault, defined, .... as a crime, ... Assembly, right of, ... unlawful, defined. Assignee in Bankruptcy, title of. Assignment, deed of, . Assumpsit, action of, 58 33,31 7 103 35 43 35 35 8 71 84 73 . 75, 76 69 70 14 31 28,31 31 94 7 42 57 121 103 116 lit) ill 111 111 111 123 89 89 90 90 90 51 60 46 106 104 103 30 26 61 129 Attempt to commit crime, Attorneys at law, in fact, powers and duties of, AucTioNBBBS, riglits and duties of, . AUTEBFOis acquit, convict, AvuLsioiir, ... . . Bail in criminal cases, forfeiture of, rights of sureties in, . Bailment, contract of, Bail-pieob, . ... Bankrtjptoy, effect on lands of bankrupt title of assignee in, Bargain and Sale, conveyance by, . Barratry, ... . . Battery, defined, . . . . as a crime, . of a servant, .... remedy for of a wife, .... remedy for, . Bawdy-house, keeping a. Bigamy, Bill of Exchange, defined, how transferred, indorsement of, BLA.SPHEMY, Body, defined, protection and support of by law. Bribery, Brokers, rights and duties of, Burglart, defined, breaking in, by owner, tenant, . entering in, house in, ownership of, night season in, specific intent in. Burning, what is, . ^ unlawful when, by owner, . by tenant, 17 PAOI!. 108 44 44 44 44 119 118 31 113 113 113 35 113 23 30 26 100 46 106 55 60 54 60 106 105 36 36 36 105 5 6 98 43 90 90 93 93 91 91 93 93 93 89 90 90 130 • PAGB. Caknal KNOwiiEDGEjTdefined, . . ... 88 wben lawful, 88 unlawful, . 88 rape, . . 88 Cakrting Arms, when a crime, . . . . 103 Cakkying Away, in robbery what is, 96 theft what is, . 93 Case, action on the, ... . . .60 Cestui que vie, defined, . . 9 Challenge op Jury, . . . 130 Challenging, . 103 Champerty, . . , loO Chance, act done by no crime, ... 80 Chancery, power of to pass title to land, ... .33 Character, evidence of . 130 Charge or Court to Jury, . . . . 131 Chattel-real, defined, . 8 38 Chattels, classes of . . . .38 estates in .... 38 absolute and qualified, 28 in remainder, . . 39 tenancy of . . . . 28, 39 title to by accession, . , .31 confusion, . 31 contract, ... 33 creation, .... 31 forfeiture, . 39 gift, ... . 32 judicial decree, . 30 marriage, . 30 occupancy, . . .81 prerogative, 39 succession, . . . 39 testament, . . .32 remedies for injury to ... . gO Cheating, . . .... 104 Children, defence and support of by parent, ... .40 legitimate and illegitimate, .... 39 rights of parents over . 39 40 support of pauper parent by . . 40 Ohoses in Action, defined, ... .28 founded on contract, . 53 not subject to theft, . . 94 ?8 Choses in Possession Circuit Court op United States, Citizens, duties of to state, . . • ... 71 78 131 Citizens, rights of from sta^e, of United States, native born, naturalized, rights of in different States, Commitment, . . . ... OoMMODATrnkt, defined, ... ... Common, defined, how disturbed. Common Law, defined, . ... of individual States, . Louisiana, . . . . United States, Compounding Informations, .... Compulsion, act done by no crime, CoNDiTiONAi Feb, defined. Conditional Limitation, defined, . Condition, estates upon, express and implied, precedent and subsequent. Confessions of crime, . . . . Confirmation, deed of Confusion, title by, . Congress, divisions and powers of Consanguinitt, collateral and lineal, how computed. Consideration of Contracts, Conspiracy, ... . . as a crime, remedy for, Construction of deeds, statutes, . ... wills. Contracts, breach of, how committed, damage implied from, remedy for, choses in action, founded on, consideration of consist in meeting of minds, conspiracy in regard to, construction of, . executed and executory, express and implied, fraud in . ... implied, classes of ... of quantum meruit, valebat, FAOE. 74, 75, 76 70 70 71 113 35 7 50 1 2 3 2 99 80,81 14 14 14 14 120 26 31 67 20 20 33 53 101 60 36 3,3 37 53 52 61 52 33 34 53 34 34 34 53 61 61 61 132 CoNTBACTS, implied of money had and received, laid out and expended lent and advanced, account stated, fidelity and skill, of agency, .... bailment, guaranty and suretyship, indorsement, insurance, partnership, sale, . . . . parties to, . . . requisites of, . . . simple and special, subject matter of, title by, . void for duress, CoKTRiBUTORY Negligbncb, effect of. Conversion of Chattels, remedy for, . Conviction Former, . Coparcenary, Copyright, defined. Coram non Judige, ... Corodies, defined. Corporations, title to property of, Costs, title to, . . . . . Counsel, appointment of for accused, arguments of in criminal trials, Counterfeiting, Counts, several in an indictment, Courts, charge of in criminal trials, of individual States, the United Stales, . Covenant, action of, to stand seized to uses. Creation, title by Crimen LiES^ Majbstatis, Crimes against persons, property, public health, justice, . peace, policy, . trade, . FAQS. 61 61 61 61 62 35 35 36 36 36 35 34 33 33 34 34 33 5 56 51 60 118 19 33 69 7 29 30 117 121 107 115 121 68 68 62 15,26 31 82 84, 106 89, 107 . 105 98 102 105 104 133 PAGE. Crimes, defined, . . 3, 78 degrees of . . . . 81 elements of . . . . ... 78 how created, ... . 77 identity of . .... ... 118 of drunkards, .... .79 who inay commit, . . . . . 79, 80, 81 CnniiNAL Act, defined, . . . 73 how described in indictment, . . . 1I6 Criminal Actors, classes of, . 108 how described in indictment, . . . . 114 presence in court of , . ... 116 Criminal Conversation, defined, 54 remedy for . . ... 60 Criminal Intent, defined, . . . .78 how presumed and rebutted, . . 79, 80, 81 Criminal Law, why not uniform, . . . .77 Criminal Procedure, . . . . . no Customary Law, defined, ... .1 Customs, when recognized as law, . . . 2 Damage-Fbasant, distress for cattle, . . . . 57 Damages, liquidated and unliquidated, . . .63 title to, ... . .30 Damnum, defined, . . . .45 Daughter, seduction of, . . . . 55 Day-labokers, defined, ... . . 43 Death, presumption of from absence, . . 105 Debt, action of, . '. , 63 contract of . . .... 37 retainer of by administrator, ... . 58 Deed-poll . 25 Deeds, constructioii of, . . . . , .36 delivery of, . .... . . 35 kinds of , . . . 25, 26 original and derivative, . .... 35, 36 parts of, . . .... . . 26 requisites of , . . . . . . 24, 25 take effect when, ... ... 25 De Facto, defined ... 69 Dbpeazance, deed of, ... . 36 Defendant, defined, ... .... 58 Deforcement, .... . 49 De Jure, defined, . . 69 Delivery, necessary to gift, 33 of deed, effect of 35 Dbpositum, defined, . . . 35 Descent, title by, 30 134 IJETAiNEK Forcible, defined, Detention of Chattels how and by whom committed, remedy for, .... Detinue, action of, Devise, subjects of, . takes effect when, . title by, Dignities, defined. Discontinuance, Diseases, spreading of infectious, DisoRDEKLT HousE, keeping a. Disseisin, action of, effect of, . how and by whom committed. Distress, for rent, . . . . of cattle damage feasant. District Court op United States, .... Disturbance of incorporeal hereditaments, remedy for. Disturbing Meetings, . . . . Divorce, effect of in general, .... on estates in dower and by curtesy. Drunkenness no excuse for crime, public . . .... when rebuts specific intent. Duelling, ... killing in is mUrder, . . . . Duplicity, in indictment, defined. Dying Declarations, when evidence, . Eaves-Dropping, . . . . Ejectment, action of, ... . Elements, title to, . . . . . Embezzlement, Embracery, ... ... Eminent Domain, right of and title by. Entering, in burglary, what is, . ... Entry, effect of, how and by whom made, when barred, Equitable Remedies, when applied, Error, writ of Escape, ...... . . Escheat, title by, . Estate, defined, Estates, absolute and conditional, .... at will, 10,4 51 60 61 27 27 26 7 49 105 106 59 48 48, 57 57 68 50 60 103 10 79 106 79 103 103 . 115 120 . 106 59 31 105 101 23, 34, 39, 73 91 57 57 57 63,64 122 99 30 ■'8 13,14 19 135 Estates, by curtesy, .9 sufferance, ... 18 executory, . . , . . . . . 16, 17 for life, . . 9 legal and conventional, . . .9 of grantee and per auter vie, .... 9 rights of tenant In, . . H years, . . . . u- from year to year, . . , 12 in common, . 17 destruction of, 19 incidents of, , ... . 19- dower, .... . . 9 10 how barred, . , . . . 10 expectancy, ... . 15 fee-simple, . . . ... 8 fee-tail . . . . 8 joint-tenancy, I7 destruction of, . ... 18 incidents of, . . . 18 survivorship of, 18 unities of , . . . .18 possession, 15 remainder, . 15, 16 17 reversion, ... . . 15^ ig severalty, I7 number and connexion of tenants in, ... 17 tail after possibility of issue extinct, ... 9 tenure of, feudal and allodial, ... 13 14 time of enjoyment ef, ig title to, by abandonment, . . .31 accretion, . . . .31 descent, . . . . 19, 30 devise, . . . . 26 eminent domain, ... 24 escheat, .... ... 30 execution, .... 23 forfeiture, .... 22 judicial decree, 23 marriage, . . .33 possession, , . . .33 prescription, . . . . . 33 private grant, ... . .34 public grant, . . .34 purchase, . . . . 19, 20 upon condition precedent and subsequent, . 14 186 ESTRAYS, title to, .... Evidence in Ckiminal Cases, Exchange, deed of ExECDTioN, defined, in capital cases, how delayed, in criminal cases, levy of on land, title by, what subject to, ExEGUTOB, title of to land, Executory Devises, Executory Interests, Exhibitions Immoral, Exposure of Person in Public, Extortion, Extradition of Criminals, Factors, rights and duties of. False 'Imprisonment, defined, remedy for. False Pretences, Falsifying Eecords, . . . . Federal Law,' defined, Feb, defined, Feb Simple, estates in, . . alienation of, include all other estates, Fee-Tail, estates in, . . . ancient character of, decline of, rights of tenant of. Fees, illegal taking of. Felony, defined, .... at common law and by statute, against the person, propertJ^ misprison of, principal and accessoiy in, Feoffment, deed of, . . . . Fines, how collected, title to, ... . Fixtures, law of, ... Forcible Entry and Detainer, Foreign Attachment, action of, . Forfeiture, title by. Forgery, PAGE. 29 130 26 58 123 133 123 23 23 33 33 17 . 15, 17 106 106 101 . 112 43 47, 106 60 105 99 1 8 9 9 103, 81' 81,97 84 89 103 108 33 133 39 27, 28 104 63 33, 89 107 137 Former acquittal, . .... conviction, Franchises, defined, Fraud, in contracts, .... remedy for, Freeholds, defined, G-AMiNG-HoTJSE, liceping a, ... Garnishment, action of, General-Ocodpant, defined. Gift, causa mortis, defined, delivery in. . , deed of, inie?- vivos, defined, irrevocable, of chose in action how made, title by, . . . GoTEnUORS OP THE INDIVIDUAL STATES, pOWCrS of, Grand Jcky, composition and duties of, Grant, deed of. Guaranty, contract of. Guardian, defined, ad litem, by appointment, nature, of the estate, person, rights and duties of, title of to estate of ward. Guardian and Ward, relation of, ceases whan, Habeas Corpus, writ of. Health, crimes against, protection of by lair. Hereditaments, corporeal and incorporeal, HiGHVfAT, obstruction of, . . High-Seas, defined Homicide, from cruel or wanton act, felony, lawful act, . . . . misdemeanor, . negligence, .... in actual combat, .... duel is murder, upon provocation, sought by slayer, when excusable or justifiable, 18 PAGE. 11!) 118 52 60 8 106 63 35 •Si 33 32 33 67 113 35 36 41 41, 117 41 41 41 41 ''A, 43 23,31 41 43 63 105 6 7 . 106 107 86 86 88 88 88 87 . 103 87 87 80 I3g Homicide, with dangerous weapon, .... without provocation, HoDSE, In arson, burglary, . . ... Hue AN0 Cry, arrest by, . . . . . HiiSB.4.ND, defence and support of wife by, wlien forfeited liability of for debts and torts of wife, remedy of for injury to wife, rights of over person and property of wife, wrongs by against rights of a wife. Husband and wife, contracts between, relation of how created, how dissolved, rights of at law and in equity, . Ignokancb, of fact rebuts criminal intent, law is no excuse for crime, Illegal Fees, taking of, .... Ill-Fame, keeping house of. Imprisonment, when false, In Being, who is, . .... In the Peace, who is, . . ... Incoeporeal Hereditaments, efiFect of non-user of, Indenture, deed of, . . . Indictment, defined, requisites of, .... Indorsement, contract of, ... Infant, incapable of crime when, cannot contract, unborn, killing of not murder Information, defined, ... requisites of, iNjUBfeTiONS, in equity, In.iuria, defined, ... .... Injuries from an illegal transaction, . joint act of injured and injurer, to chattels, direct and consequential, remedy for, . . . . with consent of injured party. Innocence, presumption of, . ... Inquest of Office Insane Person cannot commit crime, cannot contract, Insolvency, title of trustee in, Insukance, contract of, Intent, criminal. PASS. 86 87 90 . 91, 93 . Ill 39 39 88 38 30,38 53 38 37 38 38 80 80 103 . 106 47 ■ 83 85 21 25 . 113 114, 115, 116 36 79 33 85 113 114, 115, llO 64 45 56 56 51 60 56 120 21 80 33 30 36 78 139 PAGE. Intent, specific; . . , . 78 how proved and rebutted, 70 to steal, defined, . . . . 95 International Law, defined. 1 Intrusion, ouster by, . .... 48 Inventions, defined. 31 title to, . . . 31 how protected. 33 Islands, In rivers belong to whom, . . , . 21 Jeopardy Former, . ... 118 Joinder of Offenders, . ... . 115 Joint-Tenancy, estates in, . 17 rights and liabilities of tenants in. 18 Jointure, defined, . .... 10 Judoment, defined, . . .... 58, 133 correction of, 133 motion in arrest of, . . . . 123 nature of lieu of, . . . 33 reversal and vacating of. 133 Judicial Decree, title by, . . 23,80 Judicial Functions, how exercised, ... 69 Jurisdiction of United States Courts, 68 Jury, attempt to corrupt, . . . . '. 101 grand, duties of, 113 petit, . . . . 119 challenge of . 120 deliberations of . 131 verdict of, . . . ... 131 Jus, defined, 55 Kidnapping, . .... 106 Killing, defined, . 85 when excusable or justifiable, .... 86 Kindred, of half blood. 30 whole blood, 30 Land, defined, . . . . . . 7 how granted, . ... . 34 unsold, owner of . ' . . . . 34 Larceny, defined, . .... 93 carrying away in .... 93 from the person, . . . . . 97 property in, . ... 93 ownership of, ... 94 specific intent in, ... 94 taking in, .... 93 Law, defined, 1 common, 1 140 Law, customary, federal, international, interpretation of municipal, .... parts of a .... State, .... unwritten, development of, written, ... of United States, individual States, Lease, deed of Legacy, defined, .... lapses when, payable when, .... Legal, Ebmedies, Legislatures of States, divisions and powers of. Levying War, defined, Lbwdkess Public, Lex Fom, . .... Lex Loci Contractus, . . ' Libel, defined, . . . . remedy for, LiBBiiTT Personal, right of, .... protection of by law. Life, begins and ceases when, estates for, protection and support of by law, Limbs, defined, defense of, duiess by fear of loss of, protection and support of by law. Limitation, statutes of. Literary Property, defined, title to, how protected, LocATio, defined, Louisiana, common law of, LucRi Causa, defined, .... Maintenance, Malfeasance, defined. Malice, in libel murder, implied, presumed, 1 1 1 2 1 2 1 1 2 1 2 2 . 11,25 33 33 33 55 67 83 106 34 34 46, 104 60 6 5 9, 10, 11 6 5 . 5,56 5 6 56 31 31 32 85 2 95 100 45 46 86 86 87 141 Malice, in slander, . . . . Maliciods Mischief, Malicious Prosecdtiob-, remedy for, Mandamus, -writ of , . . . Makdatum, defined, Manslaughter, defined, . . . . distinguished from murder, involuntary, voluntary, Makriage, consideration of, contract of, effect of, form of, parties to, subject matter of, title by, Married Women, cannot contract, Master, defined, rights of over apprentice, . hiied servant, Master and Servant, relation of, when implied. Mayhem, defined. Meetings Disturbing, Menace, defined. Menials, defined, . . ... Military Forces, by whom controlled. Military Service, liability of citizen to, Misdemeanor, includes what. Misfeasance, defined, . ... Misfortune, act done by not crime, MisPKisiON of felony, treason. Mittimus, Mixed Actions, Mortgage, effect of foreclosure of, . Motion in arrest of judgment, for a new trial, to quash, Municipal Law, defined, Murdbr, defined, degrees of, distinguished from manslaughter, malice in, .... Natubalization, mode and effect of, PASS. 47 107 47 60 63 35 87 87 88 87 37 37 23, 30, 38 38 37 38 32,30 33 43 42 43 43 55 . 46, 106 103 46 43 67 73 . 81, 97 45 80 103 84 113 59 23 . 123 133 117, 118 1 84 87 87 86 70 142 Necessity, act done by, no crime, what is, ... . Negligence, contributory, official. New Tkiai, motion for, petition for, Night-season, in burglary. Nonfeasance, defined, Non-user of Eight, eflFect of, Notice to Quit, Nuisance, defined, . continuance of, who liable for, public, remedy for, to incorporeal hereditaments, land, how committed. Nuncupative Will, when valid. Oath, who is under, OsEDiENCE, of subject to state, Obstkucting Process, Occupancy, title by, Offenders, joinder of. Office Found, . ... Officer, de facto and de jure, duty of, in making arrests, Offices, defined, . Official Negligence Oppression, . Ouster, defined, ... Pardon, petition of, ... . plea of, .... power of, where lodged. Parent, defense of child by, emancipation of child by, rights of, over child, . support of child by. Parent and Child, relation of, rights of, cease when. Partition, deed of, . ... of estates in common, joint-tenancy, Partners, rights and liabilities of, Partnership, contract of, ... Patent, defined, ... of lands, PA&I. 80 . 80, 81 51 56 101 122 123 92 45 21 12,13 46,49 50 106 60 50 49 33 98 72 100 31 115 21 69 111 7' 101 101 48 123 119 67 40 40 40 40 39 40 . 26 19 18 35 35 33 - 143 Patekt of lands, effect of, . Penalties, title to, . . . Pensions, defined. Per Atttee Vie, Per Verba de Pkesbnti, Perjury, subornation of. Person, crimes against the, injured by crime, how described in iudiclment, of the owner, in robbery, defined, of sound memory and discretion, defined, Personal, Actions, Personal Liberty, right of, how protected, Personal Property, defined, why so called, Personal Security, right of, Petit-jury, ... PiGNUs, defined. Piracy, .... Plaintiff, defined. Plea, . ... in abatement, .... bar, Ji^ of former acquittal, former conviction, guilty, not guilty, . . . . pardon, , to the jurisdiction. Pleadings, defined, . ... Policy Public, crimes against. Possession, adverse, nature of, effect of, gives title to land when, Prerogativb, title by, ... Prerogativb Writs, Prescription, title by, what possession necessary to. Presence, actual and constructive, .... of criminal in court, .... owner in robbery, . Presentment, defined, ... . . President of the United States, powers of, . Pretended Titles, sale of, .... Principal, when bound by acts of agent, . 24 29 7 9 38 98 98 84, 106 115 9G 84 59 6 6 7 7 5 . 119 35 . 107 58 . 117 118 118 119 . 118 117 119 119 . 117 58 . 105 22 22 22 29 62 33 33 109 116 96 114 67 lOU 35 144 PAGE. pRlUCrPALS in crime, .... . . lOS, 109 Prisojst-brbach, ... 99 Private Grant, title by, ... , 24 Private Wrongs, defined, 45 Probable Cause, defined, 47 Process, civil, 58 criminal, 118 obstructing, 100 Profanity, . . . . . 106 Prohibition, writ of 63 Promissory Notes, defined, . 36 indorsement of, 36 transfer of, 86 Property abandoned, title to, 31 attached, ownership of, . . 94 constructed from another's materials, title to, 31 crimes against, . 89, 107 defined, • 6 in larceny, what is, . 93 in robbery, what is, 96 injured by crime, how described in the indictment, 113 mobility of, is legal not physical 7,27 ownership of property in theft, 94 personal, defined. . 7 private, right of. ^ protection of, . C real, defined. ■ 7 corporeal, defined. n 1 incorporeal, defined, 7 kinds of, . 7 estates for life in, . 8,9 of inheritance in, 8 personal estates in, 11 title to, 29 by accession. 31 confusion, 31 contract, 33 creation, 31 forfeiture, 29 gift, . 33 judicial decree, 30 marriajre, 30 occupancy, 31 prerogative, 29 succession, 29 testament, 32 146 Pkoperty, real, real estates in, complete vrhen, . title to by abandonment, accretion, , descent, -. devise, eminent domain, escheat, execution, forfeiture, judicial decree, marriage, possession, prescription, private grant, public grant, purchase, special, . subject to theft, what is, taken in war, title to, . . . thrown away by thief, title to, . Pbosecution in crime, . . . . . malicious, . . . . Provisions, sale of unsound Publication, of hbel, Public, defined, Public Enemv, defined, Public Grant, title by, Public Place, what is, ... . . . Public Rights, defined, .... Public Wrongs, defined ■ PuRCHASB, title by, Putting in Fear, in robbery, what is, ... . Qualified Property, Qualified Estate in personal property, .... Quash, motion to, Quo Warranto, writ of, . . . . Rape, defined, emission unnecessary to, . . . . penetration necessary to, . . . . want of consent in, . who cannot consent, .... woman a witness in, Real Actions Real Pbopbrty, defined, 19 fAita. 7 19 19 31 81 19,20 36 34 30 33 33 33 33 32 33 24 34 . 19, 30 38 . 93, 94 39 39 113 47 105 46 100 83 34 103 65 77 30 96 38 38 117, 118 63 88 88 88 88,89 89 89 58 7 146 Real Propertt, personal estates in title to, by accession, . confusion, contract, creation, . forfeiture, . gift,. . judicial decree, marriage, occupancy, prerogative, succession, . testament, . real estates in. title to, . by why so called, Rbasonabi^b Creature, defined, Recaption, riglit of, JSeceiving Stolen Goods, Records, falsifying, .... Release, deed of, . . . Remainder, .... contingent, vested, Remedies Legal, classes of, ^ when not applied, Pembdium, defined, . Remitter, of freeholder to perfect title. Rent, defined, distress for, .... abandonment, accretion, descent, devise, eminent domain, escheat, . execution, . forfeiture, grant, , judicial decree, marriage, possession, prescription, purchase. PAOfi. 11 39 31 31 38 31 29 32 30 30 31 29 29 32 7 19 21 21 19,20 26 24 20 23 22 31 33 23 22 22 19,20 7 85 56 99 99 26 15 16,17 16,17 55 56 56 55 58 7 57 147 in, Repletin, action of, property subject to, Reprieve, power of, in whom. Reprisal, right of, REPDGNAxcr, in indictment. Reputation, protection of by law, Requisition, of fugitive criminals. Rescue, Retainer, of debt by administrator, servant, . remedy for. Reversion, Right, absolute, of personal liberty, property, security, private, . public, relative, Riot, ... River-bed, belongs to whom. Robbery, defined, . person of owner in, presence of owner in, theft in, ... violence and putting in fear Rout, Bale, contract of, .... Schoolmaster, rights of over pupil, SciRE-FACiAS, action of, ... Seduction of daughter, remedy for, servant, remedy for, Sblf-Dbfbnse, right of, . how exercised, Servant, defined, .... battery of, ... , remedy for, retainer of, . remedy for, rights and duties of, 43, seduction of, remedy for, Slander, defined, remedy for, ....,,..,, 6, 60 Cl 67 ; 56 115 6 112 99 58 54 '69 is; 16 5 6 6 5 3 3,65 3.7 "' " 102 21 95 96 96 96 96 103 84 39 62 55 60 55 60 56,86 56,86 42 55 60 54 60 43,44 55 60 46 ■ 60 148 SoDoirr, Solicitation, .... SpeciaI/-Occupant, defined, 8p*CIal Property, in chattels how lost, . Specialitibb, Bpecifio Ihtent, defined, how proved and rebutted, in burglary, theft; Btasding Mdtb, ... State, defined, protection of subject by, ... rights of over subject, citizen, alien, vindication of subject by, . . . . wrongs of against subject, of another state. States or the American Union, executive functions of, how organized, dissolved, judicial functions of, law of, ... legislative functions of, vindication of subjects by, treason against. Statute oif Limitations, efiect of. Statute op Uses, efiect of. Statute-felonies, defined, Statutory Crimes, how described in indictment. Statutes, actions on, . ... construction of, declaratory, judicial notice of penal, private, defined, . public, defined, remedial, ' . Stolen Goods, receiving of, Subject, defined, duties of, to state, protection of, by state, right of, to change allegiance, rights of, in or against state, vindicatioii of, by state, rASE, 106 108 9 28 29 34 78 79 92 94 117 65 74,75 71 71 73 ,75,76 73,74 74,75 67 65,66 66 67 1 67 76 83 56 17 97 116 63 . 2,3 2 2 3 2 2 2 99 65 71 73 70 73 74 149 *t.a*. Subornation op Pbrjtubt, ... . .98 Subtraction, defined, 50 remedy for, 60 Succession, title by, ' , . . 29 Supreme Court 6f the United States, jurisdiction'of, . 68 Suretyship, contract of 36 Surplusage, in indictment, . ... . 115 Surrender, deed of, ......... 26 Taklno, in robbery, . 96 theft, . 93 Tax-sales, 23 Taxation, 29 right of 72 of State functions by United States, ... 73 United States functions by States, ... 73 Taxes, direct and indirect, 73 Technical Words, in indictment, 116 Tjinant, arson by, 90 at will, rights of 12 burglary by, 92 by sufferance, rights of 13 for life, rights of, . . . ... 11 years, rights of, 11 from year to year, rights of 12, 13 in common, rights of, 19 joint-tenancy, rights of, 18 notice to, ... . .... 12, 13 Term, defined, ... 11 Testament, defined, 33 execution and construction of, 33 title by,. 32 Testimony, when false, . 98 material to the issue, 98 Theft, defined, 92 canning away in, ... 93 from the person, 97 property in, . 93 ownership of, 94 specific intent in, ..._...>.. 94 taking in against owner's will, 93 by bailee, . . 93 consent, 93 fraud, 93 servant, 93 Threats, defined, ^ remedy for, 60 150 PASS. Time of ORmiNAL Act, how laid in indictment, . 115 Tithe, defined, . 7 Title, defined, 19 to personal estates, . .... 29 by accession, .... 31 confusion. 31 contract. 33 creation, .... 81 forfeiture. 39 gift, 32 judicial decree. 30 marriage, .... 30 occupancy. 31 prerogative. 29 succession, 29 testament, . • . 83 to real estates, .... 19 by abandonment. . 21 accretion, .... 21 descent. 19, 20 devise 26 eminent domain. 24 escheat, 20 execution 23 forfeiture, .... 22 grant, . .... 24 judicial decree, 23 marriage. 32 possession, .... 22 prescription, .... 22 Ijurchase, . 19, 20 Titlks-prbtendhd, sale of, .... . 100 Tokts, defined, • 3,45 Trades, injurious, . 106 Treason, defined 82 a degree of crime, 81 against individual States, .... 83 United States, 83 alien cannot commit, 84 how committed, 84 misprision of, . 84 Treasonable Purpose, defined, . ... 83 Trespass, ab initio, 49 action of, ... . ... 60 defendant in, when entitled to the property injure ;d, . 30 on the case, action of, . , 60 151 Tkkbpass, quare clausum, . . . . by and against whom commilled, remedy for, .... to chattels, .... . . remedy for, .... vi et armis. Trial, . .... ... Trover, action of, . . . .... defendant in, when entitled to the property converted Ubi jus ibi remedidm, .... . . Uncertainty in indictment, United States, common law in courts of, executive functions of, how organized, dissolved, judicial functions of, jurisdiction of courts of, legislative functions of, protection and vindication of subjects by, treason against. Unlawful Assembly, Unsolp Lands, how granted, ownership of, Unwritten Law, defined. Venue, Verdict, general, Verdict, partial, _ . special. Ward, defined, . . . . effect of marriage of, rights of. Warrant, Warranty, contract of, ... Waste, defined, how and by whom committed, permissive remedy for, voluntary, Waters Navigable, obstruction of, . Way, defined, disturbance of, . Wife, abduction of, remedy for, battery of, .... remedy for, fAO£. 49 49 60 51 60 60 119 60 30 55 115 2 67 65 66 68 68 67 76 83 103 24 24 1 114 121 121 131 121 41 43 41,43 110 37 50 50 50 60 50 106 7 60 63 60 54 60 153 Wife, criminal acta of, in presence of husband, power of husband over, to contract sue or be sued, FASS. 81 38 38 38 rights of, in husband 80, 39 how forfeited, 39 27 37 . 33-33 . 26-37 37 Wiii, how and by whom made, revoked, of cliattels, lands requisites of, WoKDS, actionable per se not actionable per se, 'Wounding, defined Wrecks, title to Writ of Erkob, Whits, prerogative, .... of habeas corpus, .... mandamus, prohibition, .... quo warranto, .... Written Law, defined, .... Wrongs, absolute and relative, against personal liberty, property, security, committed by parties to a relation against each other, of state against its subjects, . . . ^ . subjects of another state, private, .... public, ... . . ■ . 46, 47 47 46 29 . 133 63 63 63 63 63 1 45 47 48 45 53 73,74 74,75 . 3,45 3,77