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/cu31924018848170 CJorn^U Ham frl^ool Htbtary Cornell University Library KF 889.P27 1879 Laws of business for all the states of t 3 1924 018 848 170 LAWS OF BUSINESS ALL THE STATES OF THE UNION, AND THE DOMINION OF CANADA. FORMS AND DIRECTIONS FOR ALL TRANSACTIONS. ABSTRACTS OF THE LAWS OF ALL THE STATES ON VARIOUS TOPICS. BY THEOPHILUS PARSONS, LL.D., LATE PROFESSOR OF LAW IN HARVARD UNIVERSITY, CAMBRIDGE, AND AUTHOR OF TREATISES ON THE LAW OF CONTRACTS, ON MERCANTILE LAW, ON THE LAW OF PARTNERSHIP, ON THE LAWS OF PROMISSORY NOTES AND BILLS OF EXCHANGE, ON THE LAW OF INSURANCE, AND ON THE LAW OF SHIPPING AND ADMIRALTY. GREATLY ENLARGED AND IMPROVED. Jones Brothers & Company; CINCINNATI, PHILADELPHIA, CHICAGO. 1879. Copyright, 1879, by THEOPHILUS PARSONS. CONTENTS. CHAPTER I. THE PURPOSE AND USE OF THIS BOOK. To bring the laws of Business within the Reach of all Persons, . . 23 PAGE, CHAPTER n. BUSINESS LAW IN GENERAL. The Principles on which it rests, 27 CHAPTER HI. INFANTS OR MINORS. Form I. — Promise in Writing, 34 CHAPTER IV. APPRENTICES. Forms. Form 2. — A General Indenture of Apprenticeship as sometimes used in New England, 35 3. — Shorter Indenture of Apprenticeship, 36 CHAPTER V. MARRIED WOMEN. Abstract of the Law of Husband and Wife in the Several States, . 40 (3) CONTENTS. Forms. Form 4. — Indenture to put in Trust the Property of an Unmarried Woman, .......••• 01 5. — Another Form of Indenture in Trust, for Property of Un- married Women, 65 CHAPTER VI. AGREEMENT AND ASSENT. Section I. — The Legal Meaning of Agreement, .... 69 II. — What is an Assent, 71 III.— Offers made on Time, 72 IV. — A Bargain by Correspondence, 73 V. — What Evidence may be received in Reference to a Written Contract, 74 VI. — Custom or Usage, 76 Forms. Form 6. — General Agreement, sufficient for many Purposes, . . 79 7. — General Agreement, as used in the Western States, . . 79 8. — General Contract for Mechanic's Work, .... 80 9. — Agreement for Purchase and Sale of Land, in Use in the Middle States, . .81 10. — Agreement for Sale of Land, in Use in the Western States, 81 II. — Agreement for Warranty Deed, used in the Western States, 84 12. — Contract to convey Real Estate, in use in the Middle States, 84 13. — Agreement for the Purchase of an Estate, in use in New England, .......... 86 14. — Agreement for the Sale of an Estate by Private Contract, 89 15. — Agreement to be signed by an Auctioneer, after a Sale by Auction 89 16. — Agreement to be signed by the Purchaser, after a Sale by Auction, .......... 90 17- — Agreement to make an Assignment of a Lease, ... 90 18. — Agreement for making a Quantity of Manufactured Articles, 90 19. — Agreement between a Trader and a Bookkeeper, ... 91 20. — Agreement for Damages in laying out or altering Road, . 92 21. — Agreement between a Person who is retiring from the Active Part of a Business, and Another who is to con- duct the same for their Mutual Benefit, .... 92 CONTENTS. Form 22. — Brief Building Contract, 94 23. — Full and Minute Building Contract, 95 24. — Specification to be annexed to the Building Contract, . 99 CHAPTER VII. CONSIDERATION. Section I. — The need of a Consideration, 1 1 1 II. — What is a sufficient Consideration, 112 III. — Illegal Consideration, 115 IV:; — Impossible Consideration, 115 V. — Failure of Consideration, 116 CHAPTER VIII. BONDS. Essentials of a Bond, 118 " Condition " of the Bond, 119 Fo7-ins. Form 25. — Simple Bond, without Condition, . ~. . . .120 26. — Bond for Payment of Money, with a Condition to that Effect, with Power of Attorney to confess Judgment annexed, . . . . . . . . . .120 27. — Bond for Conveyance of a Parcel of Land 121 28. — Bond for a Deed of Land, with Acknowledgment before Notary Public, 122 29.— Bond in Another Form, for Conveyance of Land, with Acknowledgment, 123 30. — Bond to Corporation for Payment of Money due for Con- tribution to Capital Stock, with Power of Attorney to confess Judgment, 124 CHAPTER IX. ASSIGNMENTS. Instruments to which the term is particularly given, . . . ,126 CONTENTS. Forms. Form 31. — Brief Form of an Assignment to be indorsed on a note, or any Similar Promise or Agreement, ..... 127 32. — General Assignment, with Power of Attorney, . . . 127 33. — Assignment of a Bond, 128 34. — Assignment of a Bond, with Power of Attorney, and a Covenant, .......... 128 35.^Assignment of a Judgment, in the Form of an Indenture, 129 36. — Assignment of Wages, with Power of Attorney, . . 129 CHAPTER X. SALES OF PERSONAL PROPERTY. Section L— Wliat constitutes a Sale, 130 n. — Delivery and its Incidents 135 in. — Contracts Void for Illegality or Fraud, . . . .140 IV. — Sales with Warranty, 142 For7ns. Form 37.— Bill of Sale of Personal Property 145 38. — Bill of Sale of Personal Property, with a Condition to make it a Mortgage with Power of Sale, . . . .146 Section V. — The Sale of One's Business, 147 CHAPTER XL STOPPAGE IN TRANSITU. Derivation and Meaning of the Term, 148 Rights of Parties in Goods in Transitu, 148 CHAPTER xn. GUARANTY. ForiHs. Form 39.— Guaranty to be indorsed on Note iz/^ 40.— Guaranty of a Note on Separate Paper, . . . .154 CONTENTS. 7 PAGK. Form 41. — Guaranty in Another way, 154 42. — Letter of Guaranty, 155 43. — Guaranty with Collaterals, authorizing Sale, . . . 155 44. — Guaranty with Collaterals, promising Additional Security, or authorizing Sale, 155 CHAPTER XIII. THE STATUTE OF FRAUDS. Section I. — Its Purpose and General PKOvisions, .... 156 II. — Promise to pay the Debt of Another, .... 157 III. — Agreement not to be performed within a year, , . . 159 IV. — The Form and Subject-Matter of Agreement, . . . 160 CHAPTER XIV. PAYMENT AND TENDER. Section I. — How Payment may be made, 161 II. — Appropriation of Payment, 163 CHAPTER XV. RECEIPTS AND RELEASES. Remarks on the Nature of Receipts, and Degrees of Fullness thereof, 164 Forms. Form 45.— Receipt for Money, 164 46. — Another Form of Receipt for Money, .... 164 47. — Receipt for Papers or other Articles, 164 48. — General Release, 165 49. — Mutual General Release by Indenture, . . . .166 50.— Release from Creditors to a Debtor, under a Composition, 166 51. — Release of all Legacies, 166 52. — Release of a Bond, it being lost, 167 53. — Release of a Judgment, 168 54. — ^Release of a Condition, 169 ^j. — Release of a Covenant contained in an Indenture of Lease, 169 56.— Release in Extinguishment of a Power, . . . .170 8 CONTENTS. P'CE. Form 57.— Release from a Lessor to a Lessee (upon his surrendering liis Lease) from the Covenants therein, . . . .170 58. — General Release of Dower, 171 59. — Release of Dower to the Heir, 171 60. — Release of Dower in Consideration of an Annuity given by Will, 172 61. — Release of Dower when the Husband of the Widow joins in the Deed, 172 62. — Release of a Trust, '73 63. — Release of Right to Lands, 174 64. — Release between two Traders in Settling Accounts, . . 174 CHAPTER XVI. NOTES OF HAND AND BILLS OF EXCHANGE, DRAFTS, AND CHECKS. Section L — The Purpose of, and the Parties to, such Papers, . . 175 Forms. Form 65. ^Common Form of a Bill of Exchange, . . . .176 66. — Common Form of a Promissory Note, . . . .177 Section II. — What is Essential to a Negotiable Note or Bill, . . l83 For7ns. Form 67. — Form of a Note given for a Chattel sold, with a Condition preserving the Ownership of the Seller, . . . 184 Section III. — Consideration of Negotiable Paper, .... 190 IV. — Rights and Duties of the Malier, 193 V. — Rights and Duties of the Holder of Negotiable Paper, . 193 A'l. — Rights and Duties of the Indorser, 205 Vll. — Rights and Duties of the Acceptor, .... 209 VIII. — Acceptance or Payment for Honor, 210 Forins. Form 68. — Judgment Note, with Waiver, 212 69. — Judgment Note, with Waiver and Power of Attorney, . 212 70.— Judgment Note, with Fuller Waiver and Power of Attorney, 213 Abstract of Days of Grace and Holidays in all the States, . . .215 CONTENTS. g CHAPTER XVII. AGENCY. PAGB. Section I. — Agency in General, 219 11. — How Authority may be given to an Agent, . . .221 III. — Extent and Duration of Authority, 224 IV. — Execution of Authority, 226 V. — Liability of an Agent, 227 VI. — Rights of Action growing out of Agency, .... 227 VII. — How a Principal is affected by the Acts of his Agent, . 228 VIII. — Mutual Rights and Duties of Principal and Agent, . . 229 IX. — Factors and Brokers, 232 Eorms, Form 71. — Power of Attorney, 235 72. — Power of Substitution, 236 73. — Power of Attorney in a Shorter Form, .... 236 74. — Full Power of Attorney to Demand and Recover Debts, . 237 75. — Power of Attorney to Sell and Deliver Chattels, . . 238 76. — Power of Attorney given by Seller to Buyer, . . . 238 77. — Power of Attorney to sell Shares of Stock, with Appoint- ment by Attorney of Substitute, 238 78. — Power of Attorney to subscribe for Stock, .... 239 79. — Proxy or Power of Attorney to Vote, 239 80. — Proxy Revoking all Previous Proxies, .... 239 81. — Proxy with Affidavit of Ownership, in use in New York, . 239 82. — Power to receive Dividend, 240 CHAPTER XVIII. PARTNERSHIP. Sef'ion I. — What a Partner.ship is, 240 II. — How a Partnership may be Formed, 241 III. — How a Partnership may be Dissolved, .... 243 IV. — Property of the Partnership, 245 V. — Authority of each Partner, and the Joint Liability of the Partnership, 246 VI.— Remedies of Partners against each other, . . . 251 VII. — Right of the Firm against Third Parties, . . . 252 lO CONTENTS. PAGE. Section VII I.— Rights of Creditors in Respect to Funds, . . -253 IX. — Effects of Dissolution, 255 X. — Limited Partnership, . . • 256 Forms. Form 83. — Articles of Copartnership between two Tradesmen, . . 257 84 — Short Form of Articles of Copartnership, 259 85. — Certificate of a Limited Partnership, with Acknowledgment and Oath, 261 CHAPTER XIX. ARBITRATION. Section I. — The Submission and Award 262 II. — Revocation of a Submission to Arbitrators, . . . 266 For7ns, Form 86. — Simple Agreement to Refer, 268 87. — Arbitration Bond. One or more Arbitrators, . . . 268 88. — Award of Arbitrators, 269 CHAPTER XX. THE CARRIAGE OF GOODS AND PASSENGERS. Section I. — A Private Carrier 269 II. — The Common Cafrier, ....... 270 III. — Obligation of Common Carrier to receive and carry Goods and Passengers, 273 IV. — The Lien of the Common Carrier, 278 V. — Liability of the Common Carrier, 278 VI. — The Carrier of Passengers, ...... 280 VII. — Notice by the Carrier Respecting his Liability, . . . 281 VIII. — The Carrier's Liability for Goods carried by Passengers, . 283 Forms. Form 89. — Steam Packet Company's Receipt, 286 90. — Express Company's Receipt, co/vr£jvTs 1 1 CHAPTER XXI. PAGE. HOTEL-KEEPERS, INN-KEEPERS, AND BOARDING-HOUSE- KEEPERS. The Rights, Duties, and Liabilities of, and the distinction between, Hotel-keepers and Boarding-house-keepers, 288 CHAPTER XXH. LIMITATIONS. Section I. — Statute of Limitations, 290 II. — Construction of the Statute, 291 III. — The New Promise, 292 IV. — Part Payment, 293 V. — Some Statutory Exceptions, 294 VI. — Whtn the Period of Limitation begins, .... 295 VII. — The Statute does not affect Collateral Security, . . 296 Abstract of the Statutes of Limitation of all the States, . . . 296 CHAPTER XXni. INTEREST AND USURY. Section I.— What Interest is, and When it is Due, .... 307 II. — Charge for Risk or for Service, 312 III.— Sale of Notes, . . . .■ 313 IV. — Compound Interest, 314 Abstract of the Usury Laws of the States, 31S CHAPTER XXIV. THE LAW OF PLACE. Section I. — What is meant by the Law of Place, 318 II. — General Principles of the Law of Place, . . . .318 III.— Place of the Contract, 320 IV.— Domicil, 321 12 CONTENTS. CHAPTER XXV. THE LAW OF SHIPPING. PAGE, Section I. — Ownership and Transfer of Sliips, 324 II. — Transfer of Property in a Ship, 327 III. — Part-Owners, 329 IV. — Liability of Mortgagees, 331 V. — Contract of Bottomry, 331 VI. — Employment of a Ship by tlie Owner, .... 333 VII. — Charter Parties, 340 VIII. — General Average, 344 IX. — Salvage, .......... 348 X. — Navigation of the Ship, 352 XI. — Seamen, 356 XII.— Pilots, 359 XIII.— Material-Men, 360 Form 91 92 93 94, 9S 96. 97. 99. 100, Forms. — Bill of Sale of Vessel, 361 — Mortgage of a Vessel, 363 — Charter Party, 365 — Bill of Lading, 366 — Shipping Articles in Common Use, 367 — Bottomry Bond, ......... 370 — ^Oath or Affirmation of Consignee or Agent, . . .371 Custom-House Power of Attorney, No. 201, . . . 372 Maritime Protest, . . . . . . . -373 Steamboat Warrant, as used in the Western States, . 375 CHAPTER XXVI. MARINE INSURANCE. Section I. — How the Contract of Insurance is made, .... 375 II. — Interest of the Insured, 378 III. — Interest which may be insured 380 IV. — Prior Insurance, 383 V. — Double Insurance and Re-insurance 3S4 VI. — Memorandum, 385 VII. — Express Warranties, 385 VIII. — Implied Warranties, 387 CONTENTS. 13 Section IX. — Representation and Concealment, . X. — What things should be communicated, XI. — Premium, XII. — Description of the Property Insured, XIII. — Perils covered by the Policy, XIV.— Perils of the Sea XV. — Collision, XVI.— Fire, XVII.— Piracy, Robbery, or Theft, . ^ XVI 1 1.— Barratry, XIX. — Capture, Arrest, and Detention, XX. — General Clause, .... XXI.— Prohibited Trade, .... XXII.— Deviation, XXIII. — Termini of the Voyage, and of the Risk, XXIV. — Total Loss and Abandonment, PAGB. 391 392 393 394 395 395 395 396 396 397 397 398 400 402 Form. Form loi. — Abandonment, 405 Sectioni XXV. — General Average, 408 XXVI.— Partial Loss, 409 CHAPTER XXVII. FIRE INSURANCE. Section I. — Usual Subject and Form of the Insurance, . . .411 II. — Construction of Policies against Fire, .... 414 III. — Interest of the Insured, 420 IV. — Double Insurance, 422 V. — Warranty and Representation, 423 VI. — Risk incurred by the Insured, 427 VII.— Valuation, 428 VIII.— Alienation, 429 IX.— Notice and Proof, 43° X. — Adjustment and Loss, 43 1 Forms. Form 102. — Immediate Notice of Loss, 4-32 103.— Notice, with Certificate of Magistrate, . . . .433 104.— Assignment of a Policy to be indorsed thereon, . . 434 105.- Transfer and Assignment of Policy, . . , .435 H CONTENTS. CHAPTER XXVIII. LIFE INSURANCE. Section I. — Purpose and Method of Life Insurance, . II. — Premium, III. — Restrictions and Exceptions in Life Policies, IV. — Interest of tlie Insured, .... V. — Assignment of a Life Policy, VI. — Warranty, Representation, and Concealment, VII. — Insurance against Accident, Disease, and Dishonesty of Servants, 445 PAGE. 436 437 438 440 440 441 CHAPTER XXIX. DEEDS CONVEYING LAND. Section I. — What is Essential to such Deeds, 446 II. — Usual Clauses in Deeds, 451 Forms. Form 106. — Deed Poll of Warranty, in Common use in New England, 458 107. — Deed of Gift by Indenture, without any Warranty whatever, 459 108. — Deed of Bargain and Sale, without any Warranty, , . 460 109. — Quit-Claim Deed, without any Warranty, .... 461 no. — Deed Poll of Release and Conveyance ; short Form, . 462 III. — Deed, with Special Warranty against the Grantor only, . 463 112. — Quit-Claim Deed (long Form), Homestead Waiver, . . 464 113. — Deed, with Covenant against Grantor, without Release of Homestead or Dower, 465 114. — Separate Relinquishment of Homestead and Dower in Land sold under Execution, 467 115. — Full Warranty Deed, by Indenture, without Release of Homestead or Dower, 468 116. — Warranty Deed (short Form), with release of Homestead and Dower, 470 117. — Warranty Deed, with Covenant against Nuisances, without Release of Homestead or Dower, .... 471 1 18-142. — Forms of Deeds in use in various States, . . 473 — 506 143. — Bond for a Deed, _ . . 507 144. — Contract for Sale of Land, with Penal Obligation, . . 507 CONTENTS. IS PAGE. Form 145. — Power of Attorney to sell Lands, 508 146. — Trust Deed for the Benefit of a Wife, or some other Person 510 147. — Trust Deed to secure Payment of a Note without Re- lease of Homestead or Dower, 511 148. — Deed of Trust to secure a Debt (fuller Form), and with Release of Dower, ■ 513 149. — Trust Deed to secure a Note (shorter Form), but with Warranty, and Release of Homestead and Dower, . . 516 150. — Deed from Trustees, 518 i5i.-^Deed of Master in Chancery, 519 152. — Sheriff's Deed on Execution, in use in the Western States, 520 153. — Sheriff's Deed, in use in New England, .... 521 154. — Sheriff's Tax Deed, in use in the Western States, . . 523 155. — Deed of Executor, in use in the Eastern States, . . 524 156. — Deed of Executor, in use in the Middle States, . . 525 158. — Deed of Administrator of Intestate, 527 159. — Deed Poll of Guardian of a Minor, .... 530 160. — Deed of Referee on Foreclosure, in use in the Middle States, 531 161. — Deed of Collector of Taxes, 533 162. — Deed of Assignee, in use in the Western States, . . 534 163. — Acknowledgment of Grantor and Wife identified before Commissioner for another State, ..... 536 164-168. — Deeds in use in Canada, S37-543 Abstract of the Laws of all the States Relating to Deeds and their Requirements, 545 CHAPTER XXX. MORTGAGES OF LAND. Purpose of a Mortgage, 548 Rights of Mortgagor and Mortgagee, 549 Forms. Form 169.— Promissory Note, to be secured by Mortgage, . . .552 170.— Bond, to be secured by a Mortgage, . . . ■ S'i'^ 171. — Mortgage, without Power of Sale and without Warranty, but with Release of Homestead and Dower, . . . 553 1 6 CONTENTS. PAGE, Form 172.— Mortgage, with Power of Sale, to secure a Bond, without Release of Dower, . 554 173. — Mortgage to secure a Debt, with Power of Sale— short Form, .......... 556 174. — Mortgage to secure a Debt (fuller Form), with Power of Sale, 557 . 175. — Deed Poll of Mortgage, with Power to Sell, and Insurance Clause, and Release of Homestead and Dower, . . 558 176.— Mortgage by Indenture, with Power of Sale, and Interest and Insurance Clause, to secure a Bond, . . . 560 177. — Mortgage to Executors, with Power of Sale, . . . 563 178. — Mortgage of a Lease, ....... 565 179. — Mortgagee's Deed, under a Power of Sale, . . . 567 180-199. — Mortgage Deeds in use in several States, . . 567-595 200. — Assignment of Mortgage — short Form, .... 596 201. — Assignment of Mortgage, with Power of Attorney, . . 596 202. — Assignment of Mortgage by a Corporation, . . . 597 203. — Discharge of Mortgage — short Form, .... 598 204. — Release and Quitclaim of Mortgage, as used in the West- ern States, 599 205.— Discharge of Mortgage, as used in the Middle States, . 599 206. — Discharge and Satisfaction of Mortgage by a Corpo- ration, 600 207. — Release of a part of the Mortgaged Premises, . . 600 208. — Deed Extending a Mortgage, ...... 602 209, 210, 211. — Mortgage Deeds in use in Canada, . . 603-606 CHAPTER XXXI. LEASES. Definition of the Term, 610 Rights and Obligations of the Parties, 611 Fixtures, 614 Digest of Leases, 615 For?ns. Form 212. — Short Form of a Lease, 616 213. — Fuller Form, with a Provision for Abatement of Rent, . 616 214. — Short Form of Lease, in use in the Western States, . . 618 215. — Lease of City Property, in use in Chicago, . . . 619 216. — Lease, with Provisions for Taxes and Assessments, . 621 CONTENTS. 17 PAGB. ForiD 217. — Lease, with Covenants about Water Rates, and Injury by- Fire, in use in New York, 623 218. — Lease by Grant, in use in the Western States, . . . 625 219. — Lease by Certificate, with Surety, 626 220. — Lease of City Property, in use in St. Louis, . . . 627 221. — What is called a Country Lease, in use in the Western States 62S 222. — A Ground Lease, 630 223. — Assignment of Lease, and Ground Rent, .... 633 224. — Lease containing Chattel Mortgage Covenants to secure Rent 635 225. — A Building Lease, 638 226. — A Mining Lease, 639 227. — Lease of Land supposed to contain Oil, Salt, or other Minerals 640 228.— Assignment of a Lease, <543 229. — Landlord's Notice to quit for Non-Payment of Rent — short Form, 642 230. — Landlord's Notice to quit for Non-Payment of Rent — another Form, C43 231. — Landlord's Notice to pay Rent due, or quit, . . .643 232. — Landlord's Notice to leave at End of Term, . . -643 233. — Landlord's Notice to determine a Tenancy at Will, . . 644 234. — Receipt for Rent, in use in New York, .... 644 235 -239. — Leases in use in Canada, .... 644-653 CHAPTER XXXII. MORTGAGES OF GOODS AND CHATTELS, OR PERSONAL PROPERTY. The Pledge of Personal Property, ^53 Forms. Form 240.— Mortgage of Personal Property, 655 241.— Mortgage of Personal Property, with Warranty, . . 655 242.— Mortgage of Personal Property, with Power of Sale, . 657 243.— Mortgage of Personal Property, with Power of Sale — another Form, 658 Abstract of the Laws of the States respecting Chattel Mortgages, . 659 2 l8 CONTENTS. CHAPTER XXXIII. LAW OF PATENTS. PACE. What m:iy be Patented, 663 Who is Entitled to a Patent, 663 What will Prevent th« Granting of a Patent, 664 Mode of Proceeding to obtain a Patent, 665 Forms. Form 244. — Form of Petition, 665 245. — Specification to accompany a Petition, .... 665 246. — Form of Oath 667 Drawings, 667 Model, 668 Completion of the Application, 669 Examination, 669 Protests, 670 Withdrawals, 670 Appeals, 670 Form 247. — Appeal to the Examiner-in-chief, .... 670 Interferences, 672 Re-Issues, . . • 674 Form 248. — Surrender of a Patent for Re-issue 675 249. — Oath to be appended to Application for Re-issue, . 676 Disclaimers, 676 Form 250. — Disclaimer by an Assignee, 676 Extensions, 677 Designs, 679 Form 251. — Application for Patents of Designs, .... 680 252. — Specifications for Designs, ...... 680 253. — Form of Oath, 68 r Foreign Patents, 681 Caveats, 681 Form 254. — Form of a Caveat, 683 Repayment of Money, 683 Assignments and Grants, 683 Form 255. — Assignment of the Entire Interest in Letters-Patent before obtaining the same, and to be recorded pre- paratory thereto, 684 CONTEJVrS. ig FAGB. Form 256.— Grant of a Partial Right in a Patent, . . . .685 The Office Fees, and how Payable, 685 Taking and Transmitting Testimony, 687 Form 257. — Magistrate's Certificate 688 258. — Form in Taking of Depositions, 689 Filing and Preservation of Papers, 690 Amendments, 601 Form 259.— Amendment of Specification, 6gi- Canada, Patent Law of, 692 Trade-Marks, 692 Canada, Law of Trade-Marks, 695 CHAPTER XXXIV. LAW OF COPYRIGHT. Rerised Statutes of tlie United States relating to Copyright, Sections 4948 to 4971, 695 Copyright Law of the Dominion of Canada, 700 Forms. Form 260. — Agreement between Author and Publisher — short Form, . 700 261. — Agreement between Author and Publisher — fuller Form, 701 262. — Assignment of a Copyright, 703 CHAPTER XXXV. MEANS PROVIDED FOR THE RECOVERY AND COLLECTION OF DEBTS. I. — Arrest and Imprisonment, 703 2. — Trustee Process, 703 3. — The Homestead, 704 Abstract of Laws relating to the Collection of Debts, , . •. . 705 CHAPTER XXXVI. LIENS OF MECHANICS AND MATERIAL-MEN FOR THEIR WAGES AND MATERIALS. What is a Lien, 743 20 CONTENTS. Forms. PAGE. Form 263.— Notice under Mechanic's Lien Law, 744 264. — Bill of Particulars of Mechanic's Claim, . . . -745 265. — Release and Discharge of a Mechanic's Lien, . . .745 266. — Release and Discharge of a Mechanic's Lien, another Form, 746 Abstract of the Laws of all the States relating to Mechanics' Liens, . 746 CHAPTER XXXVII. THE DISPOSAL OF PROPERTY BY WILL. Section I. — Wills 755 II. — Codicils, 758 III. — Revocation of Wills, 759 Form 267. — A Will, 760 268. — Copy of a fuller form of a Will, 761 269. — Another form of a Will, . . . ... . . 763 CHAPTER XXXVIII. EXECUTORS AND ADMINISTRATORS. Powers and Duties of Executors and Administrators, . , . . 770 Forms. Form 270. — Petition to be appointed Executor, without further Notice, 774 271. — Executor's Bond, 774 272. — Bond of Executor, who is also Residuary Legatee, . . 775 273. — Administrator's Bond, 776 274. — Administrator's Petition for leave to sell a Part of the Real Estate, 776 275. — Administrator's Petition for leave to sell the Whole of the Real Estate, 777 276. — Bond of Administrator licensed to sell Real Estate, . 778 277, — Account of Executor, 779 CONTENTS. 2 J CHAPTER XXXIX. GUARDIANS. PAGS. The Rights and Duties, Powers and Liabilities, of Guardians, . . 780 CHAPTER XL. CONSTRUCTION AND INTERPRETATION OF CONTRACTS. Section I. — General Purpose and Principles of Construction, . . 782 II. — Some of the General Rules of Construction, . . . 783 III. — On Presumptions of Law, 7^7 IV.— Of the Effect of Custom and Usage, . . . .788 V. — On the Admissibility of Extrinsic Evidence, . . . 791 NOTE. In preparing this edition of my Laws of Business, I have spared no effort to make the book a safe guide in every business question which is likely to arise in any State of the Union. I have made large additions to the former edition, especially of Abstracts of tlTe Laws of all the States, in relation to such matters as Deeds of all kinds, Chattel Mortgages, Leases, Wills, Mechanics' Liens, Days of Grace and Holidays, Statutes of Limita- tions, Actions, Recovery and Collection of Debts, Attachment, Arrest, Garnishment, or Trustee Process, Judgment, Exemptions, Stay Laws, Homestead Rights, etc., etc. I have greatly multiplied the Forms. Some of these Forms will be found brief and simple ; others of them, especially those in relation to real estate, are fuU and minute. No one but a lawyer knows how necessary it is to use the technical, customary, and established language of Forms, every phrase of which has passed through repeated liti- gation, and has thus acquired a certain meaning. Much in such Forms will seem, to those ignorant of law, to be wordy and fuU of repetition ; but, if the Forms are made apparently more simple by omissions and abbrevia- tions, they vtay be good, and they may not; and whether they are or not cannot be known except by litigation. And he must be a bold lawyer who would undertake to prefer Forms of his own make to those which the Courts and common use have sanctioned. Wherever I could, I have given Forms which were thus sanctioned, because the very object of this book is to enable persons who use it to conduct their business affairs with ease, safety, and certainty. I think such a book possible, and I venture to hope that I have made such a book. I know only that whatever labor and care could do to make the book useful and safe, has been done. In nothing that I have published have I labored more strenuously to make my work satisfy the just require- ments of those to whom it is offered. In this edition I have brought the law down to the present time, have revised the whole work, and, as I have already said, have made large additions which will, I hope, increase its use- fulness and value. THEOPHILUS PARSONS. ' THE LAWS OF BUSINESS. CHAPTER I. THE PURPOSE AND USE OF THIS BOOK. The title of this work indicates, to some extent, its purpose and character ; but, as they are in certain respects peculiar, it is thought that some remarks respecting them may make the volume more useful. Many years ago, after more than twenty- five years of practice at the bar, I accepted the office of Dane Professor in the Law School of Harvard University. I employed whatever leisure the duties of that office left me, in preparing a series of text-books on Commercial Law. I have published many volumes ; and the manner in which they have been re- ceived by my professional brethren, calls for my most grateful acknowledgments. One of those works was entitled " The Ele- ments of Mercantile Law," and was intended as a general epitome of Commercial Law. I began it mainly for the use of lawyers, but at the same time hoping that it might be so written as to be useful to others, who were not lawyers. Before I had made much progress in it, the hope that one book could answer these two purposes faded away ; and I finally made that work exclusively for lawyers. But the circum- stance that many persons who were not lawyers, and did not intend to be, have bought my works, — the remarks that have reached me in relation to them, and particularly in reference to that above mentioned, and many other kindred facts, — have given additional strength to a belief that led me to prepare this vol- ume, for wide and general use. That belief is, that there is a strong and growing disposition, (23) 24 PURPOSE AND USE OF THIS BOOK. among the men of business of this country, to understand the laws of business. This disposition, and the actual diffusion of this knowledge, have both greatly increased of late years, and I believe could not have been arrested ; for this progress is one element of advancing and improving civiUzation ; and I think it cannot now be prevented. The institutions and characteristics of this country have their bearing upon this question. We have no sovereign but the law; or rather the people is the sovereign, and the law is their only utterance. It is a sense of this that has here transferred, in some degree at least, the loyalty which in the kingdoms of the Old World attaches to a person, to the law itself, using this word in its most comprehensive sense. This is a good thing; not because the law is always wise and good, but because it will more probably become wise and good, if the whole com- munity recognize it as entitled to obedience, and therefore enti- tled to their constant, earnest, and vigorous endeavors to cure its defects, and bring it into harmony with those principles of truth and justice of which it should be the expression. This great duty rests upon us with the stronger obligation because of our greater intelligence and activity of mind, or more general education and wider extent of common knowledge ; all which are none the less facts, although they are sometimes used as mere food for vanity, or as topics for adulation. And all these things together seem to lead to the conclusion, that here and now proper efforts should be made to supply all of the community who ask for it, — with accurate and practical information con- cerning those laws which are of the most immediate concern to them. So far as concerns the whole people, their wish, if expressed in the simplest terms, would undoubtedly be, to know the laws which must regulate their conduct and determine their rights. This wish admits of but one question ; it is, How far is this thing practicable } for so far as it is, its propriety and expediency can hardly be denied or doubted. Indeed, they who would most strenuously oppose any effort to teach the people the law, would do so only on the ground that it is impossible to give to the public any knowledge of this kind which would be wide enough PURPOSE AND USE OF THIS BOOK. 25 and accurate enough for use. They would think that the very- endeavor to learn the law, by persons the main ' business of whose lives must be of a very different kind, would lead only to a superficial and erroneous view of the subject; and this, under the name of knowledge, is only the most dangerous ignorance. We should, however, remember, that the people generally, here and elsewhere, must necessarily know a certain amount of law, for without this they cannot live safely in society. For example, men in business must know something of the most general laws of business ; as how to conduct their sales, how to make notes, how to collect them, and the like ; and all men must know so much of ordinary law as protects and defines their common and universal rights. Moreover, it will probably be admitted that important mistakes, leading to much loss and difficulty, are every day made, because many do not know those general principles or rules of law which some do know, and which every man in business might know. The question, there- fore, can only be, how much of law it is possible and desirable for- men in business to learn ; and what is their best way of learn- ing it. Here let me remark, that few persons, who have not had occasion to study and to teach Commercial Law as a whole, ar^ aware of that unity and harmony of its principles, which make it indeed a system of laws ; or of the prevailing simplicity and rea- sonableness of its rules. An eminent English lawyer has said, that it was astonishing within how small a space all the princu pies of commercial law may be compacted. It is equally true, that the laws of business are generally free from mere techni- cality and obscurity ; and the reason is, that they are for the most part, and substantially, nothing more than the actual prac- tice of the business community, expressed in rules and maxims, and invested with the authority of law. The knowledge which a trader acquires of the laws of trade need not, at all events, be superficial; for a knowledge of princi- ples, and an intelligent appreciation of them, however limited it may be, should not be regarded as superficial. And these limits need not be narrow. The extent of this knowledge, and its accuracy, thoroughness, and utility, must obviously depend 26 PURPOSE AND USE OF THIS BOOK. upon the books from which it is acquired, and upon the manner of using those books. Considerations of this kind led me to the belief, that it was possible to make a book, which should place within the appre- hension of every intelligent trader, and of every young man who proposes to engage in any department of business (and this now means almost every man in the community), at the cost of no more time than every one can conveniently give to it, a useful knowledge of all the elements, or general rules and principles, of the Laws of Business. In other words, I thought it an undeserved reproach of our Laws of Business, to say that they were not intelligible by all, if stated with simplicity and accuracy ; and an equally undeserved reproach of our Men of Business, to say that they could not comprehend laws, which were made for them, and were intelli- gible in themselves, and plainly stated. It seemed to me, there- fore, that the time had come, in this country, for a book which no one has ever attempted to rhake anywhere heretofore. This book should contain all the principles of all the branches of the laws which regulate the common transactions of life, stated with all the accuracy that care and labor could insure in any book, and so stated that any man of good capacity, with reasonable effort, might understand all of them ; and might, with the help of the Index, find in the volume a true and intelligible answer to the questions which every day arise ; and might, if he were willing to make a regular study of the whole book in course, become acquainted with, the rules, and the reasons of the rules, by which all business may be safely conducted. And this book I have endeavored to make. I have compiled it, mainly from the law- books I have already made for the profession. If they are accu- rate and trustworthy, this is so ; and I may be permitted to say, that whatever earnest endeavors could do to make those books trustworthy was done ; and that accumulated testimony, which I have no right to disregard, encourages me to hope that I have not labored in this respect in vain. I have made changes which seemed to be required by the intended adaptation of this book to merchants and not to law- yers. These are, first, the omission of citations and references BUSINESS LAW IN GENERAL. 27 to reports and authorities ; next, the addition of some element- ary rules and principles and definitions, whieh would not be nec- essary in a book for lawyers only ; and lastly, the use of com- Tnon or non-professional language, the general omission of merely technical words, and the full explanation of such words when they are used. If there are those who are preparing for a life of business, or are now engaged in it, who will study this volume, in course, — • dwelling on what seems most important, and examining with care what seems obscure, — I venture to hope that they will find the work so arranged, and the meaning so expressed, that what comes before explains what follows, and every part of it will be intelligible. At the same time, I have labored to make every- thing plain by itself, as far as that was possible, that it might not disappoint those who, without reading it in course, look into it for an answer to questions as they arise. And for such per- sons I have endeavored to have the Index of Subjects (at the end of the book) exceedingly full and minute. I have added a great variety of Forms. Of course no col- lection of Forms could be made large enough to meet the exact facts of every case that can arise. But it is possible to give accurate Forms of all sorts; and any person can select the Form nearest to his particular need, and easily make the altera- tions which the facts of his case require. CHAPTER II. BUSINESS LAW IN GHNERAL. All law is divided into what it called, in law books, common law and statute law. We have legislatures, and our fathers had them; and a very large proportion of the laws now binding upon us were made by those legislatures in a formal and regular way. All these are Statutes ; and taken altogether, they com- pose the Statute Law. Besides this, however, there is another very large portion of our law which was not enacted by our 28 BUSINESS LA W IN GENERAL. legislatures ; and it is called the Common Law. In fewer words, all law was regularly enacted, or it was not. If it was, it is statute law; if it was not so enacted, it is common law. The common law of the several States of this country con- sists, in the first place, of all the law of England — whether statute or common there — which was in force in that State at the time of our independence, and recognized by our courts, and which has not since been repealed or disused. And next, of all those universal usages, and all those inferences from, or applications of, established law, which courts in this country have recognized as having among us the force of law. For this common law there is no authority excepting the decisions of the courts ; and we have no certain means of knowing what is or is not a part of the common law, excepting by looking for it in those decisions. Hence the value and importance of the reported decisions, which are published by official reporters in most of our States. A very important part of the common law, especially to all men in business, is what is called, by an ancient phrase, the Law-Merchant. By this is meant the law of merchants; or, more accurately, the law of mercantile transactions; and by this again is meant all that branch- of the law, and all those principles and rules, which govern mercantile transactions of any kind. This great department of the law derives its force in part from statutory enactments, but in far greater part from the well-established usages of merchants, which have been adopted, sanctioned, and confirmed by the courts. For example, a large proportion of the law of factors and brokers, most of that of shipping and of insurance, and nearly all the peculiar rules applicable to negotiable paper (or promissory notes -and bills of exchange payable to order), belong distinctly to the Law-Merchant. The courts of this country have always acknowledged that a custom of merchants, if it were proved to be so nearly uni- versal and so long established that it must be considered that all merchants know it and make their bargains with reference to it, constitutes a part of the law-merchant. And the law- merchant is itself a part of the common law, and therefore has BUSINESS LA W IN GENERAL. 29 the whole obligatory force of law. This would not be true, if the custom was one which violated statute law, or the obvious principles of public policy or common honesty. But we may suppose that no custom of this kind would ever be so generally adopted and established as to come before the courts with any claim for recognition as law. A great deal of the language of every art or science or pro- fession is technical (indeed, technical means belonging to some drt), and is peculiar to it, and may not be understood by those who do not pursue the business to which it belongs. This is as true of law as of everything else. In this work, however, I have avoided as far as possible mere law-words ; and when I have used them have explained them at the time. There are some, however, which cannot be dropped : they express exactly what is meant, and we cannot express it without them, unless by long and awkward sentences. A good instance of this is in those words which end in er (or or) and in ee. As for example, promisor and promisee, vendor and vendee, indorser and indorsee. These terminations are derived from the Norman-French, which was, for a long time, the language of the courts and of the law in England. And it might seem that we' had just as good terriiinations in English, in er and ed, which mean the same thing. But it is not so. Originally they meant the same thing, but they do not now ; for both er and ee are applied in law to persons, and ed to things ; so that we want all three termina- tions. For example, indorser means the man who indorses ; indors^^ means the man to whom the indorsement is made ; but the note itself we say is indorse*/. So vendi^r means the man who sells, vend^^ means the man to whom something is sold, and the thing sold is vend^<£ And the promisor makes the promise, the promis?^ receives it, and the thing to be done is promis^fl?; We have retained not only this phraseology, but some other words or phrases, of which similar things might be said. 20 OF INFANTS, OR MINORS. CHAPTER III. INFANTS, OR MINORS. SECTION I. Generally, all persons may bind themselves by contracts. But some are incapacitated. The incapacity may arise from many causes ; as from insanity ; or from being under guardian- ship ; or from alienage in time of war ; or from infancy ; or from marriage. All persons are infants, in law, until the age of twenty-one. But in Vermont, Maryland, Ohio, Maine, Missouri, Texas, and perhaps one or two other States, women are considered of full age at eighteen, for some purposes. The rule of law is, that a person becomes of age at the beginning of the day before his twenty-first birthday. This rule opposes the common notion, and it rests on no very good reason, but on ancient authority and constant repetition. The reason assigned is, that the law takes no notice of parts of a day. The effect of the rule is, that a person born on the 9th of May in the year 1840, becomes of age at the beginning of the 8th of May, 1861, and may sign a note, or do any thing, with the full power of a person of age, on any hour of that day. The contract of an infant (if not for necessaries) is voidable, but not void. That is, he may disavow it, and so annul it, either before his majority, or within a reasonable time after it. As he may avoid it, so he may ratify and confirm it. He may do this by word only. But mere acknowledgment that the debt exists is not enough. It must be sitbstantially, if not in form, a new promise. In England, and a few of our States, it is pro- vided by statute, that this confirmation can only be by a new promise in writing, signed by the promisor. The rule seems to be useful, and we think it will be more widely adopted. It must be a promise by the party, after full age, to pay the debt ; or such a recognition of the debt as may fairly be under- OF INFANTS, OR MINORS. 31 stood by the creditor as expressive of the intention to pay it ; for this would be a promise by implication. There are no par- ticular words or phrases which the law requires or favors as a confirmation. No ratification or confirmation can be used in any action which was brought before the ratification was made. It must also be made voluntarily, and with the purpose of assuming a liability from which he knows that the law has dis- charged him. And if it be a conditional promise, the party who would enforce it must prove the condition to be fulfilled. Thus, if the plaintiff relies on a new promise, and asserts and proves that the defendant said, after full age, " I will pay when I am able," he must also prove that the defendg.nt was able to pay when the action was brought. If an infant's contract is not avoided, it remains in force. And it may be confirmed without words; and the question sometimes occurs, whether confirmation by mere silence, after a person arrives at full age, prevents him from avoiding his con- tract made during his infancy. As a general rule, mere silence, or the absence of disaffirmance, is not a confirmation ; because it is time to disaffirm the contract when its enforcement is sought. But if an infant buys property, any unequivocal act of owner- ship after majority — as selling it, for example — is a confirmation of the purchase. And, generally, a silent continued possession and use of the thing obtained by the contract is evidence of a confirmation ; therefore, if an infant buys a horse, and gives his note for it, and after he is of age the seller puts the note in suit, the buyer may return the horse and refuse to pay the note ; but if he keeps the horse, this is considered evidence of a con- firmation of the note. The evidence of confirmation is much stronger if there be a refusal to re-deliver the thing when it can be re-delivered; and is generally conclusive, when the conduct of the party must either be construed as a confirmation, or, if not so construed, must be regarded as fraudulent, or wrongful. Thus, where an infant purchased a potash-kettle, and gave his promissory note for the price, it being agreed by the parties that he might try the kettle, and return it if it did not suit him ; and the vendor, after the infant became of age, requested him to 32 OF INFANTS, OR MINORS. return the kettle if he did not intend to keep it ; but he retained and used it a month or two afterwards. The court held that this was a sufficient ratification of the contract, and that an action might be sustained on the note. The great exception to the rule that an infant's contracts are voidable, is when the promise or contract is for necessaries. The rule itself is for the benefit and protection of the infant, and the same reason causes the exception ; for it cannot be for the benefit of the infant that he should be unable to purchase food, raiment, and shelter, on a credit, if he has no funds. The same reason, however, enlarges this exception, until it covers not only strict necessaries, or those without which the infant might perish, or would certainly be uncomfortable, but all those things whith are certainly appropriate to his person, station, and means. There is no exact dividing line which could make this defini- tion precise. But it is settled that mercantile contracts, as of partnership, purchase and sale of merchandise, signing notes and bills, are not necessaries, and that all such contracts are voidable by the infant. So, if he gives his note even for neces- saries, he is not bound by it ; but may defend against it on the ground that it was for more than their true value ; and the jury will be instructed to give against him only a verdict for so much as the necessaries were worth. If he borrows money, to be expended in the purchase of necessaries, and gives his note, the debt, or the note, has been held, at law, voidable by the infant. But our courts would now hold an infant liable for such a debt ; and it is well settled that an infant is liable for money paid at his request for necessaries for him ; and if he give a note for necessaries with a surety who- pays it, the surety may recover against the infant. If an infant avoid a contract, he can take no benefit from it; thus, if he contracts to sell, and refuses to deliver, he cannot demand the price ; or if he contracts to buy, and refuses the price, he cannot demand the thing sold. An infant is as liable for torts (by torts or tortious acts the law means wrongs or offences) as an adult ; and therefore, if he fraudulently represented himself as of age, when he was not, OF INFANTS, OR MINORS. 33 and so made a contract which he afterwards sought to avoid, this fraud will not prevent his avoiding the contract, but for the fraud itself he is answerable just as an adult would be. So if he disaffirms a sale, for which he has received the money, he must return the money ; because keeping it would be a wrong, or a confirmation of the sale. So if after his majority he destroys or puts out of his hands a thing bought while an infant, he cannot now demand his money back, as he might have done on tendering the thing bought ; for by his disposal of it he has acted as owner, and confirmed the sale. In general, if an infant avoids a contract on which he has advanced money, and it appears that he has received from the other party an adequate consideration for the money so advanced, which he cannot, or will not restore, he cannot recover back the money which he advanced. But if an infant has engaged to labor for a certain period, and, after some part of the work is performed, rescinds the contract, he can recover for the work he has done, as much as that work was worth. The contract of an infant is voidable only by him, or by those having a right to act for him, and not by the other party. The election to avoid or confirm belongs to the infant alone ; and his having this right does not affect the obligation of the other party. Therefore, one who gives a note to an infant, or makes any other mercantile contract with him, must abide by it, unless the infant annuls it, which he can do if he chooses to. But if the note were given or the contract made by a fraud' on the part of the infant, the injured party has the same right of defending against it on this ground as if the fraudulent party were not an infant. And it is a universal rule of the law, that - no contract which is tainted with fraud is valid against an inno- cent party ; therefore, a wilfully false representation of the infant that he has reached his majority would be a fraud, and would enable the party dealing with him to set the contract aside. A father is bound to supply an infant child with necessaries ; and, if he does not, is liable for their value to any person who supphes them. And for these, as we have seen, the child him- self is also liable. Although in most of our States the law does not require that 34 APPRENTICES. the confirmation or new promise of an adult, of a promise which he may avoid because it was made by him when an infant, must be in writing, it would always and everywhere be better and safer to have this new promise in writing. It should be in sub- stantially this form : (1.) I, Henry Thompson, having promised Nathan Green, io {here describe ihe promise, whether by a note, or verbally, for goods bought, or the like, briefly, but so that there may be no mistake about it) and at the time of making that promise I was a minor, within the age of twenty-one years, now, in consider- ation of said promise, I do hereby confirm and acknowledge the same, and promise a full performance and execution thereof. Henry Thompson. It would often be easier, if both parties assented, simplj," to give a new note for the amount due. But it might, in m; ny cases, be better that the new promise should tell the story of the old promise for which it is given. CHAPTER IV. APPRENTICES. The contract of apprenticeship is generally in writing, and is also most frequently by deed, (or writing under seal,) and is to ■be construed and enforced as to all the parties by the common principles of the law of contracts. Usually, the apprentice, who is himself a minor, and his father or guardian with him, covenant that he shall serve his master faithfully during the term. And the master covenants that he will teach the appren- tice his trade ; but the instrument is not made invalid by the omission to specify any trade or profession as that to be taught. He also covenants to supply him with all necessaries, and at the end of the term, give him money or clothes. Slight informali- ties would not make the instrument void. Even if they are of sufficient magnitude to have this effect, the instrument will prescribe and measure the claim of each of the parties against the other, if they have lived under this instrument as master APPRENTICES. 35 and servant. But the apprentice's consent will not be inferred from his mere signature, but must be expressed. In case of sickness the master is bound to provide proper medicines and attendance. The master cannot transfer his trust, or his rights over the apprentice. He has no right to employ the apprentice in menial services not connected with the trade or business which he has agreed to teach him. And when he neglects to take due charge of the apprentice, the parent's or guardian's authority will revive. The sickness of the apprentice, or his inability to learn or to serve, without his fault, does not discharge the master from his covenants, because he takes this liability on himself. Nor will such misconduct as would authorize a master to discharge a common servant, release the mastfer of an apprentice from his liability on his contract. But if the apprentice deserts from his service, and contracts a new relation which disables him from returning lawfully to his master, the latter is not bound to receive him again if he offers to return. Not only a party who seduces an apprentice from his service is liable, but where one employs an apprentice without the knowledge and consent of his master, the employer is liable to the master for the services of the apprentice, although he did not know the fact of the apprenticeship. It may be added that if an action be brought for harboring an apprentice against the will or without the consent of his master, the plaintiff is bound to prove that the defendant had a knowledge of the apprentice- ship. But a defendant who did not know the apprenticeship when he hired or received the apprentice, and who being informed thereof continued to retain and harbor him, thereby makes himself liable. (2.). A General Indenture of Apprenticeship, as sometimes used in Ne^w England. This Indenture, Made the day of by and between A. B. of and C D. his son, of the age of years, of the one part, and E. F. of of the other part, witnesseth, that the said C. D., by and with the consent of the said A B. (testified by his signing and sealing these presents) hath bound out h1«mself as an apprentice, to of to be taught in the said trade, science or occupation 36 APPRENTICES. of a which the said R. J. now uses, and to live with, continue, and serve him as an apprentice from the day of the date hereof (or from the day of next coming) unto the full end and term of seven years from thence next ensuing and fully to be complete and ended. During all which said term of seven years, the said A. B. doth covenant and promise to and with the said R. J. that he, the said C. D., shall and will well and faithfully serve and demean himself, and be just and true to him the said R. J. as his master, and keep his secrets, and everywhere willingly obey all his lawful commands ; that he shall do no hurt or damage to his said master in his goods, estate, or otherwise, nor willingly suffer any to be done by others, and whether prevented or not, shall forthwith give notice thereof to his said master; that he shall not embezzle or waste the goods of his said master, nor lend them without his consent to any person or persons whatso- ever ; that he shall not traffic, or buy and sell, with his own goods, or the goods of others, during the said term, without his master's leave ; that he shall not play at cards, dice, or any other unlawful games, whereby his said master may sustain any loss or damage, without his consent ; that he shall not haunt or frequent play-houses, taverns or ale-houses, except it be about his master's business there to be done ; and that he shall not at any time, by day or night, depart or absent himself from the service of his said master without his leave ; but in all things, as a good and faithful apprentice, shall and will demean and behave himself to his said master, and all his, during the said term. And for and in consideration of the sum of to him in hand paid, etc., the receipt, etc., the said R. J. doth covenant, promise, and agree to teach and instruct his said apprentice, or otherwise cause him to be well and sufficiently taught and instructed, in the said trade of a after the best way and manner that he can; and shall and will also find and allow unto his said apprentice meat, drink, washing, lodging, and apparel, both linen and woolen, and all other necessaries in sickness and in health, meet and convenient for such an apprentice, during the term afore- said ; and at the expiration of the said term, shall and will give to his said apprentice (over and above his then clothing) one new suit of apparel, viz., coat, waistcoat, and breeches, hat, shoes, and stockings, and linen, fit and suitable for such an apprentice. In Witness Whereof, The said parties have interchangeably set their hands and seals hereunto. Dated the day of in the year of our Lord one thousand eight hundred and {Signatures^ (Sea/s.) {Witnesses.) (3.) Shorter Indenture of Apprenticeship. This Indenture Witnesseth, That by and with the consent of hath put himself, and by these presents doth voluntarily, and of his own free will and accord, put himself Appi^ntice to to learn the art, trade, and mystery of and after the manner of an Apprentice to MARRIED WOMEN. 37 serve the said for and during, and to the full end and term of next ensuing. During all which time the said Apprentice doth covenant and promise, that he will serve his master faithfully, keep his secrets, and obey his lawful command ; that he will do him no damage himself, nor see it done by others, without giving him notice thereof — that he will not waste his goods, nor lend them unlawfully — that he will not contract matrimony within the said term — that he will not play at cards, dice, or any other unlawful game, whereby his master may be injured — that he will neither buy nor sell, with his own goods or the goods of others, without license from his master — and that he will not absent himself day nor night from his master's service, without his leave — nor haunt ale-houses, taverns or play- houses, but in all things behave himself as a faithful Apprentice ought to do during the said term. And the said master on his part doth covenant and promise, that he will use the utmost of his endeavors to teach, or cause to be taught or instructed, the said Apprentice in the art, trade, or mystery of and will procure and provide for him sufficient meat, drink, clothing, lodging, and washing, fitting for an Apprentice, during the said term, and will give him quarters schooling during the said term. And for the true performance of all and singular the covenants and agreements aforesaid, the said parties bind themselves each unto the other, firmly by these presents, In Witness Whereof, The said parties have interchangeably set their hands and seals hereunto. Dated the day of in the year of our Lord one thousand eight hundred and Executed and delivered before (^Witnesses.) (^Signatures) {Seals) CHAPTER V. MAERIED WOMEN. By the original common law of this country, a married woman is wholly incapable of entering into mercantile contracts on her own account. By the fact of marriage, her husband becomes possessed of all her real estate during her life, and if a living child be born of the marriage, he has her real estate during his own life, if he survive her. This life-right in her real estate is called, in law, his tenancy by the curtesy. All the personal property which she has in actual possession 38 MARRIED WOMEN. becomes by common law, absolutely his, as entirely as if she had made a transfer of it to him. But by property in possession the law means only her goods and chattels; or things which can be handled ; and which actually are in her hands, or under her direct and immediate control. If she have notes of hand, money due her, or shares in various stocks, these are not con- sidered as things in possession, but as things in action. Thifigs in possession are those things which one has now in his hands, and things in action (called in law choses in action), those which are so called because he who owns them cannot get possession of them without an action, if other persons choose to resist him. All debts, and evidences of debt, as bonds, notes, and all shares in stocks, whether national or State, or of incor- porated companies or other companies, are things in action. But bank-bills are usually regarded as money, and therefore as things in possession. The common law makes a wide difference between things in possession and things in action in many respects. The common law of husband and wife as to things in action is this. The husband may, if he pleases, reduce them to his possession, and so make them absolutely his own. In general, he does this by any act which is distinctly an act of ownership; as if he demands and collects the debts due to her, or indorses her notes — which he can do in his own name — and sells them, or has the stock transferred to his own name, or, in general makes any final and effectual disposition of these things in action. Then they have become absolutely his own. If, however, he does not reduce them to possession, and dies, and she survives him, her whole right and property revive at his death, without any interest whatever in his representatives. And even if he disposes of them by will, this is ineffectual, unless he had reduced them into his possession while he lived. If, however, he survives her, he will be made, if he wishes it, her administrator, and then can collect all her things in action, and hold them or their proceeds as his own. And if she dies, and then he dies before he has collected these things in action, administration on his wife's effects will be granted to his next of kin, and not to hers ; and when collected, they will belong to his estate. MARRIED WOMEN. 3^ On the other hand, the husband is liable, by the common law, with her, for all the debts for which his wife was liable when he married her. This is true whether they were then payable, or did not mature until after the marriage; and whether he received anything with her or not. If he does not pay them, and dies before the creditor has obtained a judgment against him, his estate is not liable, even if he had a fortune with her, and that fortune goes to his heirs or his creditors, and her creditors get nothing. So it is if the wife dies before the creditor recovers a judgment against the husband, and the husband then retains all her fortune. But her responsibility revives at his death, and she is liable as before marriage, even if she carried him a fortune, and all her fortune went, as above stated, to his representatives. But if she dies, leaving thiyigs in action not reduced by the husband to possession, and he reduces them to his possession as her administrator, he must apply them to the payment of her debts, and can hold for himself only what is left after such payment. Such, we have said, is the common law of England and of this country. We have stated it, because it is the origin and common foundation of the law everywhere. But it is not just or right ; and there are few, perhaps no one of our States, in which it remains wholly unqualified by statutory provisions. But these provisions are very various ; and in some of the States they change with almost every year. In nearly all the States a married woman conveys her own real estate, and releases dower- by joining in a deed with her husband ; but she is not generally bound by covenants therein, and, in many, must be separately examined. In most, she has a certain time, after removal of the disability of coverture, to- assert her different rights, otherwise barred. Generally, devises or conveyances to husband and wife create a joint-tenancy, unless the terms of the devise or conveyance are expressly otherwise. And, upon the marriage of a woman who is plaintiff or defendant, the suit does not abate, but the husband may be admitted to prosecute or defend with her. I give here an Abstract of the law of husband and wife, as it stands on the Statutes of the several States. 40 MARRIED WOMEN. ALABAMA. In Alabama, the wife's separate estate is alone liable for her antenuptial debts, and the husband is not liable. Code (1876), § 2704. All her property held before, or acquired after, marriage, is secured to her separate use. Id. § 2705. The husband is her trustee, but not liable to account for the profits. Id. § 2706. She need not be of full age to release dower. Id. § 2236. The proceeds of a sale of her property are her separate estate, which the husband may use as most beneficial for her. They cannot contract with each other for the sale of any property. Id. § 2709. He may receive property coming to her. Her estate is liable for necessaries for the family. If a suit therefor is brought against a husband, and execution is not satisfied, her separate estate may be sold by order of court. She may dispose of her property by will. Id. §§ 27 1 1-27 13. If the husband is unfit to manage her estate (or his estate, or abandons her, or has no property exempt from execution), she may be vested with the powers of 3. feme sole. Id. §§ 2717-2718. The homestead consists of l6o acres, if not in a city, town, or village, or if therein, any lot not exceeding $2,000 in value. If the wife die intestate, the husband is entitled to one-half of the personalty abso- lutely, and to the use of the realty during life, unless incapacitated. Stat. 1876. ARKANSAS. In Arkansas, 2^ feme covert may be seized in her own right of any property not coming from her husband. Dig. of Ark. Stat. (1874), § 4193. The homestead of 160 acres of land, or a town or city lot, of the value of $5,000, occupied by the husband while living, or by widow or child of deceased husband, and certain specified personal property, are exempt from execution. § 2625. A married woman cannot be execu- trix. Id. ch. I, § 9. Her real and personal property are her sole property, and are not liable for her husband's debts, but may be controlled by her, and she may sue or be sued on account thereof as if unmarried. But the private property of no mar- ried woman is exempt from the payment of debts contracted by her husband pre- viously to the filing of a schedule of such separate property in the office of the recorder of the county where she lives. May make a will ; may insure her husband's life for her own benefit ; may manage and carry on business with her separate estate; and is not liable for her husband's debts. Gault's Digest, Ark. Stat., 1874. CALIFORNIA. In California, all property owned before marriage, or subsequently acquired by gift, bequest, devise, or descent, by either party, is the separate property of each; but all otherwise acquired by either after marriage is common property. An inven- tory of the wife's separate property, acknowledged or proved, as for a conveyance of land, must be recorded; and this shall be notice of the wife's title : and her property included therein is exempt from seizure or execution for the debts of her husband. He has the management and control of her separate property during marriage ; but no alienation can be made, nor lien nor encumbrance created, unless she joins in the deed, and acknowledges upon a separate examination. But when she sells her separate property for his benefit, or he uses the proceeds with her written consent, it is deemed a gift ; and neither she nor those claiming under her can recover. In cer- tain cases, a trustee may be appointed to manage her property. The husband has MARRIED WOMEN. 41 the entire control and management of the common property, with like absolute power of disposition as of his own separate property; and the rents and profits of the sep- arate firoperty of both are deemed common property, unless with respect to the wife, the terms of the bequest, devise, or gift, are otherwise. Dower and curtesy are abol- lished. Upon the death of either party, one-half the common property goes to the survivor, and the other half to the descendants of the deceased, suliject to the pay- ment of his or her debts ; if there are no descendants, the whole to the survivor, subject to such payment. Upon divorce, the common property is equally divided. The separate property of the wife is alone liable for her antenuptial debts. But the parties may control these provisions by marriage contract, which must be in writing and recorded, or otherwise shall not affect third parties. It may be entered into by a minor, but cannot alter the legal order of descent, nor derogate from the husband's rights over the persons of his wife and children as head of the family, or the surviv- or's rights as guardian of the children. Civil Code of Cal., 1872, §§155-181. When a married woman is party to a suit, her husband is to be joined : except, if the action concerns her separate property, she may sue alone ; and, if between herself and her husband, she may sue and be sued alone. If both are sued together, she may defend in her own right. Code of Civil Pro., § 370. There is also a homestead law, exempting the homestead to the amount of $5,000 from final process of court ; and it cannot be alienated without the wife joins in the conveyance, and acknowledges apart from her husband. Its other provisions are substantially similar to those before referred to. § 1242. By complying with certain requirements, she may carry on, in her own name, any business, trade, profession, or act ; and the property, etc., invested belongs exclusively to her ; and she has all the legal privileges and disabilities of debtor and creditor, and becomes responsible for the maintenance of her children. Her husband is not liable for her debts thus contracted without special written promise ; and she must take an oath that not more than JS500 of the amount invested proceeded from him. Code of Civil Pro., §§ 18 1 1-182 1. She may cause the life of her husband to be insured for her benefit. § 2763. The personal property of the wife can be sold or transferred only when husband and wife join in the sale or transfer, excepting only what she holds as 2^ fane sole. She may dispose of her separate ijrop- erty by will, in like manner as any other person. § 1273. Her earnings are her separate property. COLORADO. All property coming to the wife before or after marriage, except from her husband remair 3 her sole and separate property. She may bargain and sell, and enter into any contract in regard to the same as if she were sole. She may sue or be sued in regard to her property, person, or reputation, the same aS if sole ; may make a will, but she cannot bequeath away from her husband more than one-half her property without his consent in writing. She may carry on business on her own account, and her earnings are her separate property. The husband is liable for the debts of his wife, contracted before marriage, to the extent of the property he may receive through her, but no further; and the wife may contract debts, sign bonds, bills, and notes, and sue and be sued in regard to the same as if she were sole. Gen. Laws of Col., 1877, §§ 1747-1761. Dower is abolished. jp, MARRIED WOMEN. CONNECTICUT. In Connecticut, all real estate conveyed to a married woman, in consideration of property acquired by her personal services during coverture, shall be held by her to her sole and separate use; and the avails of all sales of the real estate of a married woman, if invested in her name, or in the name of a trustee for her, belong to her. When any man abandons his wife for a continuous period of three years, with total neglect of duty, she may petition the Superior Court, as a court of equity, in any county where she owns real estate, and such court shall pass a decree empowering her to execute all conveyances necessary to dispose of such real estate, as if she were a feme sole. All the personal property of any woman, married since the 22d of June, 1849, '^'^^ ^1' "^^ personal property acquired there- after by a married woman, and the avails of any such property if sold, shall vest in the husband in trust, to receive and enjoy the income thereof during his life, subject to the duty of expending therefrom so much as may be necessary for the support of his wife during her life, and of her children during their minority, and to apply such part of the principal thereof as may be necessary for the support of the wife, or otherwise, with her written assent; and upon his decease the remainder of such trust property shall be transferred to the wife, if living, otherwise as she may by will have directed, or in default of such will to those entitled by law to succeed to her intestate estate ; but if the husband shall have paid liabilities incurred by her before marriage, a proper court of equity may, upon his application, discharge said trust, and vest absolutely in him such portion of said property as may be equiva- lent in value to the amount of such liabilities so paid. General Statutes, Revision of 1875, pp. 185, 187. Chapter 114, of the Laws of 1876-1877 (approved i6th of March, 1877), makes important changes in the relations between husband and wife. It leaves, however, the provisions above stated, in full force as to existing marriages, unless the persons now married agree to substitute the provisions of this latest statute. By this statute, neither husband nor wife acquires by marriage any interest in the property of the other, except as provided in this statute. Her earnings are her own property. She may contract with third persons or convey property to them as if unmarried. The property of either is not liable for the debts of the other, incurred before or after marriage. The purchases of either are presumed to be on his or her own account, unless they have gone to the support of the family, or for her reasonable apparel, or for her support when abandoned by her husband, in which cases he is liable. He is bound to support the family. On the death of either, the survivor has the use for life of one-third of the property, real and personal, of the other, which right is not to be defeated by any will of the other. If there be no will the survivor takes the third absolutely, and if no issue one- half. If eiiher leaves a legacy to the other, that legacy is to be taken instead of this right; but the legatee may elect whether to accept the legacy or his or her statutory share. The judge of probate may make the wife a reasonable allowance for the support of herself and family during the settlement of the estate. They may con- tract before or after marriage for a provision in lieu of this statutory share. Neither party abandoning the other is entitled to this share. The provisions of this statute apply only to marriages hereafter contracted ; but parties now married may enter into a contract to substitute for their rights under other statutes, or at common law, the rights given by this act. All property hereafter acquired by any married woman shall be held by her to her sole and separate use. Pub. Acts, 1878, chap. 6i. MARRIED WOMEN. DELAWARE. 43 In Delaware, the widow of one who made his will before marriage takes the same share as if he died intestate. Rev. Stat, 1874, c. 84, § 23. Insurance on life for her benefit is secured to her, if the premiums do not exceed iiii5o. Id. C.-76, § 3. If her husband abandon her, the court may provide for the support of herself and her children out of his property. Id. c. 48, § 15. She cannot make a power of attorney. Id. c. 83, § 13. Real estate, mortgages, stocks, and silver plate belonging to her at marriage, or acquired during coverture, are not subject to his disposition, or liable for his debts, except judgments recovered against him for his liabilities before marriage ; but she may not dispose of such property nor create any incum- brance on her real estate, nor dispose of the rents thereof, nor of the interest of her stock and mortgages, without his consent in writing under seal. This provision does not affect him as tenant by curtesy ; but with his consent, as aforesaid, the proceeds of such sale as above authorized may be invested in her own name as her sole property, subject to the laws governing the principal. Rev. Stat , 1874, p. 478. All money and other property acquired by a married woman, living separate from her husband and not supported by him, remains her separate property so long as they live apart. Rev. Stat., 1874, pp. 478-479. Real and personal property belonging or coming to the wife before or after mar- riage, except what comes from the husband, remains her separate property; she is not liable for his debts ; she may receive and control her separate earnings, and may sue and be sued in regard to her separate property. If twenty-one years of age, she may, with the written consent of her husband signed and sealed and attes- ted by two witnesses, make a will, but it shall not affect her husband's right of cur- tesy; and if she die intestate, her property goes to her heirs. Ibid. pp. 479-480. The real and personal property acquired by a married woman at any time, from any one except her husband, remains her sole and separate property, not subject to his disposal, or liable for his debts. A married woman may be executrix or admin- istratrix the same as if 2i feme sole. In purchasing real estate she may give any bond, mortgage, or security, as if sole, and her husband need not join. Laws of 1875, p. 289. She may make a power of attorney as if sole. Laws of 1877, p. 604. FLORIDA. In Florida, the husband or wife administers in preference to others. Thompson, Dig., 2 Div., Tit. 3, ch. 2, § l, T S- Their rights, by marriage, under the Spanish law when in force, are preserved. Id., 2 Div., Tit. 3, ch. I, § 4; 2 Div., Tit. 3, ch. i, § 2, T I. The wife retains independent of her husband, and is not liable for his debts (if inventoried and recorded ; but failure to record confers no rights upon him. Id., 2 Div., Tit. 3, ch. 1, § 2, "T 8), all property owned before, or obtained after marriage ; but he has the management of it. She cannot sue him for rent, nor can he sue her for management. Her property alone is liable for her antenup- tial debts; and upon her death, he takes the same interest in her property as a child; but if she leaves no child, the whole. Id. 2 Div., Tit. 5, ch. I, § 2. A homestead pf fifty acres, or a lot in any city, town, or villagfe, not exceeding five hundred dol- lars in value. " Every person of the age of twenty-one years," of sound mind, may make a will. Id. 2 Div., Tit. 3, ch. i, § i, IT l. Certain provisions of the crim- inal code are extended to married women. Laws 1868, ch. 4, § 6. See Bush's Dig., X872, chap. 118, p. 580. 44 MARRIED WOMEN, GEORGIA. In Georgia, marriage settlements, if not recorded within three months after execution, are invalid as to bond fide purchasers, creditors, or sureties without actual notice, becoming so before actual recording. Code, ed. of 1867, p. 354. The hus- band takes administration, and is sole heir of his deceased intestate wife. Id. p. 351. On the death of the husband without issue, the wife is the sole heir. Id. p. TCI. The wife of an idiot or lunatic is generally entitled to the guardianship. Id. p. 370. If deserted, her earnings vest in herself. Id. p. 351. By an act, approved February 28, 1S56, Laws of 1855-6, Tit. 19, No. 176, p. 229, <•. husband married thereafter is not liable for his wife's debts, further than the property received through her will satisfy; and such property is not liable for his debts existing at the time of the marriage. A married woman may deposit in any savings institution any sum not more than ;f 2,000, the earnings of herself or children, as her own separate property, as if she were unmarried, Laws of Georgia, 1865-66, Tit. 26, §§ i, 2. The property of the wife coming to her before or after marriage remains her separate property, and is not liable for the debts of the husband. All acquisitions of the wife when living separate from her husband are her own. She may be a free-trader with the consent of her husband. May sue and be sued alone in regard to her separate estate , and may make a will with the consent of her husband. Code of 1873, §§ 1754-1762. ILLINOIS. In iLLiNors, there is a homestead law, similar in its purposes to those before mentioned, exempting the homestead to the value of $1,000. It continues after the death of the householder, for the benefit of the widow and family, if one of them occupies the same until the youngest child is twenty-one years of age, and the death of the widow. Rev. Stats., 1S77, p. 4J3. An Act was passed in 1874, entitled " An Act to revise the law in relation to husband and wife." Its principal provisions are, that she may own in her own right, real and personal property obtained by descent, gift, or purchase, and manage, sell, and convey the same to the same extent and in the same manner that the husband can property belonging to him. Neither husband nor wife shall be liable for the debts of the other contracted before marriage, nor for the separate debts of each other. Contracts may be made, and liabilities incurred by a wife, and the same enforced against her, to the same extent and in the same manner as if she were unmarried ; but she cannot enter into or carry on a partner- ship without the consent of her husband, unless he have abandoned her, or is idiotic or insane, or in the penitentiary. She may sue and be sued alone, as if she were unmarried. Neither he nor she can recover any compensation for any labor per- formed or services rendered for the other. Provisions are made for the protection and support of the wife in case of her abandonment by the husband. By another Act, tenancy by the curtesy is abolished, and husband and wife are put on the same footing as to dower. Rev. Stats., 1877, p. 552, et scq. Married woman may sue alone in regard to her separate property, and when the suit is between husband and wife ; may be executrix if her husband file his consent ; she may make a will. Stats. 1876, vol. 2, pp. 36, 491, 570. MARRIED WOMEN. INDIANA. 45 In Indiana, the husband is liable for her antenuptial debts only to the extent of the personal property he received with her, or from the sale or rent of her lands. Stats. Ind., 1876, vol. I, p. 550. And such liability is not extinguished by her death. Id. § 2. Her Christian name is sufficient in a suit against them jointly. Cox v. Runnion, 5 Blackf., 176. Her admissions subsequent to marriage are not admissible in a suit against them jointly for a debt of hers while single. Brown v. Lasselle, 6 Blackf., 147 ; Lasselle v. Brown, 8 id. 221. Process need only be served on the hus- band when subsequent jiroceedings are against both. Campbell v. Baldwin, 6 id. 364 ; King v. McCampbell, id. 435, The husband is a proper fiarty to a scire facias, on a judge's transcript of judgment against the wife while single. Campbell v. Bald- win, supra. The plaintiff must prove marriage, in assumpsit against both on a note of wife before marriage, when non-assumpsit is pleaded. Wallace v, Jones, 7 id. 321. They should sue separately in an action for libel upon both. Hart V. Crow, id. 351. As to the wife's agency, see Casteel v. Casteel, 8 id. 240. Judg- ment against them jointly for tort of wife must be satisfied first from her lands, if she have any Stats. 1876, p. 550. Her lands are not liable for ker husband's debts, but remain her separate property; but she cannot encumber or convey them except by deed, in which her husband must join. Id. p. 550. Barnett v. Goings, 8 Blackf., 284. Suits relative thereto should be in the name of both ; if sep- arated, in her name, in which case the husband is not liable for costs. Id. p. 551. The wife cannot sue, or defend by guardian or next friend, unless under twenty-one. Id. p. 553. There are special provisions as to powers of a wife if abandoned by her husband. Id. p. 551. If a husband die, testate or intestate, one-third of his real estate goes to his wife in fee simple, free from all demands of creditors ; but if the real estate exceeds in value ten thousand dollars, she takes, as against creditors, only one-fourth; and if it exceeds twenty thousand dollars, only one-fifth. Id. p. 411. If she die, one third of her real estate goes to him. Id. 412. If a husband or wife die intestate and without a child, the whole estate goes to the survivor. Id. p. 413. She may elect to take under his will or by law. Dower and curtesy are abolished. Stats. Ind., 1876, pp. 41 1-413. IOWA. In Iowa, a married woman owns in her own right all property, real or personal, which came to her by descent, gift, or purchase, and may manage and dispose of the same without the interference of her husband. Neither the husband nor wife is liable for the debts or contracts of the other, made or incurred before marriage or after. For all civil injuries by the wife, damages may be recovered from her alone. In case of abandonment of either by the other, the party abandoned may petition the court, who may, on sufficient proof of the facts, authorize the petitioner to manage or encumber the property of the abandoning party for the support of the family. Each may constitute the other his or her attorney in fact. She may sue for and recover wages for her personal services, and hold what she recovers as her own property. She may make contracts and incur liabilities in the same manner as if unmarried. Code of 1873, PP- 397 a" scriptions, incurs actual expense or loss, or enters into valid contracts with other parties which will occasion expense or loss. As the objection to these promises or the doubt about them, comes from the want of consideration, it may be cured by a seal to each narae, or by one seal which is declared in the instrument to be the seal of each. It is to be regretted that the law does not regard a merely moral consideration as a sufficient legal consideration ; but so it is. Thus, it has been held in this country, that a note given by a father to a party who had given needful medicines, food, and shelter to his sick son, who was of full age, was void in law, because there was no legal consideration. And the same doc- trine was applied where a son made a similar promise for food and support to his aged father. If, in either case, the promise had been made before the food or other articles were supplied, or even a request made before the supply, then the supply of the food and support would have been a good consideration. But they had all been supplied before any request or promise, and nothing was left but the moral obligation of a father to compen- sate one who had supported his son, or of a son to support his father ; and this the law does not deem sufficient to make even an express promise enforceable at law. AN IMPOSSIBLE CONSIDERATION. 115 SECTION III. AN ILLEGAL CONSIDERATION. If the whole of a consideration, or if any part of the con- sideration of an entire and indivisible promise, be illegal, the promise founded upon it is void. Thus, where a note was given in part for the compounding of penalties and suppressing of crim- inal prosecutions, it was held to be wholly void and uncollecti- ble. And where a part of the consideration of a note was spirituous liquors, sold by the payee in violation of a Statute, such note was held to be wholly void. But if the consideration consists of separable parts, and the promise consists of corres- ponding separable parts, which can be apportioned and applied, part to part, then each illegality will affect only the promise resting on it ; for in fact there are many considerations and many promises. If the consideration be entire and wholly legal, and the prom- ise consists of separable parts, one legal and the other illegal, the promisee can enforce that part which is legal. SECTION IV. AN IMPOSSIBLE CONSIDERATION. No contract or promise can be enforced by him who knew' that the performance of it was wholly impossible ; and therefore a consideration which is obviously and certainly impossible is not sufficient in law to sustain a promise. But if one makes a promise, he cannot always defend himself when sued for non- performance by showing that performance was impossible ; for it may be his own fault, or his personal misfortune, that he cannot perform it. He had no right to make such a promise, and must answer in damages ; or if he had a right to make it in the expectation of performance, and this has become impossible subsequently, — as by loss of property, for example, — this is his misfortune, and no answer to a suit on the 'promise. There are, however, obviously, promises or contracts, which, from their very nature, must be construed as if the promisor had said, " I will do so and so, if I can." For example, if A promises to 1 1 6 CONSIDERA TION. work for B one year, at ;^20 a month, and at the end of six" months is wholly disabled by sickness, he is not liable to an action by B for breach of his contract ; and he can recover his pay for the time that he has spent in B's service. A mere want of money, which makes a pecuniary impossibility, is not regarded by the law as a legal impossibility. SECTION V. FAILURE OF CONSIDERATION. If a promise be made upon a consideration which is appar- ently valuable and sufficient, but which turns out to be nothing ; or if the consideration was originally good, but becomes wholly valueless -before part performance on either side, there is an end of the contract, and the promise cannot be enforced. And if money were paid on such a consideration, it can be recovered back, but only the sum paid can be recovered without any increase or addition as compensation for the plaintiff's loss and disappointment, unless there were fraud or oppression. If the failure of consideration be partial only, leaving a sub- stantial, though far less valuable, consideration behind, this may still be a sufficient foundation for the promise, if that be entire. The promisor may then be sued on the promise ; but he will then be entitled, by deduction, set-off, or in some other proper way, to due allowance or indemnity for whatever loss he may sustain as to the other parts of the bargain, or as to the whole transaction, from the partial failure of the consideration. Thus, if he promised so much money for work done in such a way, or as the price of a thing to be made and sold to him, if no work is done, or the thing is not made or sold, there is an end of the promise, because the consideration has failed. But if the work was done, but not as it should have been, or the thing made and sold, but not what it should have been, and the promisor accepted the work or the thing, he may now show that the consideration for his promise has partially failed, and may have a proportionate reduction in his promise, or in the amount he must pay. And if the promise be itself separable into parts, and a distinct part or proportion of the consideration failed, to which part some FAILURE OF CONSIDER A TION. ' ny distinct part or proportion of the promise could be applied, that part of the promise cannot be enforced, although the residue of the promise may be. If A agrees with B to work for him one year, or any stated time, for so much a month, or so much for the whole time, and, after working a part of the time, leaves B without good cause, it is the ancient and still prevailing rule, that A can recover nothing in any form or way. It has, however, been held in New Hampshire, that A can still recover whatever his services are worth, B having the right to set off or deduct the amount of any damage he may have sustained from A's breach of the con- tract. This view seems just and reasonable, although it has not been supported by adjudication in other States. If A agrees to sell to B five hundred barrels of flour at a certain price,.and, aftefr delivering one-half, refuses to deliver any more, B can certainly return that half, and pay A nothing. But if B chooses to retain , that half, or if he has so disposed of or lost it that he cannot return it, he must pay what it is worth, deducting all that he loses by the breach of the contract. And this case we think analogous to that of a broken contract of service ; but B's lia- bility to pay,- even in the case supposed as to goods, has been denied by some courts. A difficulty sometimes arises where A, at the request of B, undertakes to do something for B, for which he is to be paid a certain price ; and in doing it he departs materially from the directions of B and from his own undertaking. What are now the rights of the parties .? This question arises most frequently in building contracts, in which there is usually some depai"ture from the original undertaking. The general rules are these: If B assent to the alteration, it is the same thing as if it were a part of the original contract. He may assent expressly, by word or in writing ; or constructively, by seeing the work, and approv- ing it as it goes on, or being silent; for silence under such circumstances would generally be equivalent to an apprbval. But if the change be one which B had a right, either from^ the nature of the change, or the appearance of it, or A's language respecting it, to suppose would add nothing to the cost, then no promise to pay an increased price would be inferred from either ii8 BONDS: an express or tacit approval. Generally, as we have seen, if A does or makes what B did not order or request, B can refuse to accept it, and, if he refuses, will not then be held to pay for it. But if he accepts it, he must pay for it. This consequence results, however, only from a voluntary acceptance. For if A choose, without any request from B, to add something to B's house, or make some alteration in it, which being done cannot be undone or taken away without detriment to the house, B may hold it, and yet not be liable to pay for it ; and A has no right to take it away, unless he can do so without inflicting any injury whatever on B. This rule would apply whether the addition or alteration were larger or smaller. It is sometimes provided in building contracts that B shall pay for no alteration or addition, unless previously ordered by him in writing. But if there be such provision, B would be liable for any alteration or addition he ordered in any way, or voluntarily accepted after it was made, when he could have rejected it. So it is sometimes agreed that any additions or alterations shall be paid for at the same rate as the work contracted for. The law would imply this agreement if the parties did not make it expressly. CHAPTER VIII. BONDS. A BARGAIN where both parties make promises, and come under obligations, each to the other, may b*e made without seal, and would then be called an Agreement. If made under seal, it would generally be in the form of, and bear the name of, an Indenture. If a promise by one only, is made in writing, with- out a seal, it is a simple promise ; but if it be made with a seal, then it would generally be in the form of, and bear the name of, a Bond. The essentials of a bond are only that one party should acknowledge himself "held, bound, and obliged" unto another party, to pay to him a sum of money ; and neither of the words BONDS. 119 "held," or "bound," or "obliged," are strictly necessary, al- though usual and proper : other words of the same meaning will have the same effect. In such a bond, the party bound i^ called the obligor, and the party to whom he is bound is called the obligee. The sum for which the obligor is bound is called the penal sum, or the penalty. Such a bond is simply an obligation to pay so much money. But a bond is not often given only for this purpose. It is usually intended to be, in fact, ah obligation to do something else, on the penalty of paying so much money if it be not done. This something else may be anything what- ever which the obligor may contract to do. All this is contained in an addition, which is written on the same paper immediately after the bond itself; that is, after the words of obligation. And this is called the " Condition " of the bond. It begins with saying, This bond is on the condition following ; and then recites the things which the obligor has undertaken to do ; and then adds, that if all -these things are fully done and performed, then the bond shall be void and of no effect, and otherwise shall remain in full force. The meaning and effect of all this is, that if the obligor fails, in any respect, to do what the condition recites, then he is bound to pay the money he acknowledges himself, in the bond, bound to pay. But now the law comes in to mitigate the severity of this contract. And whatever be the sum which the obligor acknowledges himself, in the bond, bound to pay, he is held by the courts to pay to the obligee only that amount which will be a complete indemnification to him for the damage he has sus- tained by the failure of the obligor to do what the condition recites. For example : suppose A B makes a bond to C D, acknowl- edging himself bound to C D in the sum of ten thousand dol- lars. The condition recites that one E F has been hired by C D as his clerk, and that A B guarantees the good conduct of E F ; and if E F does all his duty honestly and faithfully, then the bond is void, and otherwise remains in full force. Then suppose E F to cheat C D out of some money. A B is sued on the bond ; C D cannot recover from him, in any event, more than the ten thousand dollars ; and he will in fact recover from 120 BONDS. him only so much of this as will make good to C D all the loss he has sustained by E F's misconduct. As the obligee can recover from the obligor only actual compensation for what he loses, it is usual, in practice, to make the penal sum in the bond large enough to cover all the loss that can happen. There need be no "consideration," alleged or asserted in the bond, or proved, because, in the language of the law, the seal is (or implies) a consideration. The following forms are those of bonds frequently given ; and it will be easy to frame from some one of them any bond that is wanted for other purposes. (26.) A Simple Bond, without Condition. Know all Men by these Presents, That I {the obligor) am held and firmly bound unto {the obligee) in the sum of lawful money of the United States of America, to be paid to the said or his certain attorney, or assigns : to which payment well and truly to be made, I bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal. Dated the day of in the year of our Lord one .thousand eight hundred and In Testimony wEereof, I have set my hand and seal to this instrument, on the day of , in the year of our Lord eighteen hundred and {Witnesses) {Signature) {Seal.) Executed and Delivered in Presence of (26.) Bond for Pajment of Money, with a Condition to that Effect, with Power of Attorney to confess Judgment annexed. Know all Men by these Presents, That held and firmly bound unto in the sum of lawful money of the United States of America, to be paid to the said or his certain attorney, executors, administrators, or assigns : to which payment well and truly to be made, heirs, executors, and administrators, firmly by these presents. Sealed with seal Dated the day of in the year of our Lord one thousand eight hundred and FORMS OF BONDS. I2i The Condition Of this Obligation is such, That if the above bounden heirs, executors, administrators, or any of them shall and do well and truly pay, or cause to be paid, unto the above-named certain attorney, executors, administrators, or assigns, the just sum of dollars, without any fraud or further delay, then the above obligation to be void, or else to be and remain in full force and virtue. {Signature) {Seal.) Sealed and Delivered iti the Presence of To , Esq., Attorney of the Court of Common Pleas, at in the County of , in the State of , or to any other Attorney of the said Court, or of any other Court, there or elsewhere. "Whereas, {the obligor) in and by a certain obligation bearing even date herewith, do stand bound unto {the obligee) in the sum of lawful money of the United States of Amer- ica, conditioned for the payment of These are to desire and authorize you, or any of you, to appear for heirs, executors, or administrators, in the said court or elsewhere, in an action of debt, there or elsewhere brought, or to be brought, against me, or my heirs, executors, or administrators, at the suit of the said ifhe obligee) executors, administrators, or assigns, on the said obligation, as of any term or time past, present, or any other subsequent term or time there or elsewhere to be held, and confess judgment thereupon against me, or my heirs, executors, or administrators, for the sum of lawful money of the United States of America, debt, besides costs of suit, in such manner as to you shall seem meet : and for your, or any of your so doing, this shall be your sufficient warrant. And I do hereby for myself, and for •my heirs, executors, and administrators, remise, release, and forever quit claim unto the said {the obligee) or his certain attorney, executors, administrators, and assigns, all and all manner of error and errors, mispris- ions, misentries, defects, and imperfections whatever, in the entering of the said judgment, or any process or proceedings thereon or thereto, or an3rwise touching or concerning the same. In Witness Whereof, have hereunto set hand and seal , the day of , in the year of our Lord one thousand eight hundred and {Signature) {Seal.) Sealed and Delivered in the Presence of (?n.) Bond for Conveyance of a Parcel of Land. Know all Men by these Presents, That we, as principals, and as sureties, are holden and stand 122 BONDS. firmly bound unto in the sum of dollars, to the payment of which to the said or executors, administrators, or assigns, we hereby jointly and severally bind ourselves, our heirs, executors, and administrators. The Condition of this obligation is such that whereas the said obligors have agreed to sell and convey unto the said obligee a certain parcel of real estate situated and bounded as follows, namely : The same to be conveyed by a good and sufficient {warranty or other) deed of the said obligors, conveying a good and clear title to the same, free from all incumbrances. And whereas, for such deed and conveyance it is agreed that the said obligee shall pay the sum of dollars, of which dollars are to be paid in cash upon the delivery of said deed, and the remainder by the note of the said obligee, bearing interest at per cent, per annum, payable semi-annually, and secured by a mortgage in the usual form upon the said premises, such note to be (describe the note) Now, therefore, if the said obligors shall upon tender by the said obligee of the aforesaid cash, note , and mortgage at any time within from this date, deliver unto the said obligee a good and sufficient deed as aforesaid, then this obligation shall be void, otherwise it shall be and remain in full force and virtue. In Witness Whereof, We hereunto set our hands and seals this day of A.D. l8 . Signed and Sealed in Presentee of (28.) Bond for a Deed of Land, with Acknowledgment before Notary Public. Know all Ken by these Presents, That of the County of and State of held and firmly bound to of in the sum of dollars, to be paid to said his executors, administrators, or assigns, to the payment whereof bind sel heirs, executors, and administrators, firmly by these presents, sealed with seal, and dated the day of A.D. i8 . The Condition of this Obligation is, That if the said upon payment of dollars, and interest, by said within years from this date, agreeably to note of even date herewith, shall convey to said and heirs forever, a certain tract of land, situ- ated in the County of and State of to wit : FORMS OF BONDS. 123 by a deed in common form duly executed and acknowl- edged, and in the meantime shall permit said to occupy and improve said premises for own use, then this obligation shall be void, otherwise to remain in full force and effect. In Testimony Whereof, have hereunto set hand and seal , the day and year first above written. {Signature.) {Seal.) State of ^ [■ss. County of ) Be it Remembered, That on this day of eighteen hundred and , before me, the undersigned. Notary Public in and for said County and State, duly commissioned and qualified, came who to be the same person whose name subscribed to the foregoing instrument of writing, as party thereto, and acknowledged the same to be act and deed for the purpose therein mentioned. In Testimony Whereof, I have hereunto set my hand and afiixed my ofilcial seal, at my ofiif e, in the City of , the day and year last aforesaid. Notary Public. (29.) Bond in another Form, for Conveyance of Land, with Acknowledgment. Know all Ken by these Presents, That of in the County of and State of held and firmly bound unto of in the County of and State of in the penal sum of dollars, for the payment of which sum, well and truly to be made to heirs, executors, and administrators, I bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal and dated this day of A.D. 18 The Condition of the above Obligation is such., That whereas the said this day has given the said promissory note of even date herewith Now, if, on payment of the said note being made on or before the time shall become due, and all taxes on the land hereinafter described having been paid by the said and no right of pre-emption having been established or claimed on the said land, or any part thereof, the said or his legal represen- tatives, shall, whenever thereunto afterwards requested, execute and deliver to the said or legal representatives, a good 124 BONDS. and sufficient deed, conveying to the {here describe the land) free and clear of all incumbrance then this obligation to be null and void, otherwise of full force and effect, it being distinctly understood and agreed by and between the parties hereto that the time of payment herein above fixed material and of the essence of this contract, and that in case of failure therein, the intervention of equity is forever barred. (Signatures (Seals.) Signed, Sealed, and Delivered in Presence of State of ^ )■ FS. County of ) Ij in and for the said county, in the State aforesaid, do hereby certify that personally known to me as the same person whose name subscribed to the above bond for deed, appeared before me this day, in person, and acknowledged that te signed, sealed, and delivered the said bond as free and ■joluntary act, and for the use and purpose therein set forth. Given under my hand and seal, this day of A. D. i8 . Notary Ptiblic. (30.) Bond to Corporation for Payment of Money due for Contri- bution to Capital Stock, with Power of Attorney to confess Judgment. Know all Men by these Presents, That held and firmly bound unto {name of the corporation) in the sum of lawful money of the United States of America, to be paid to aforesaid, their certain attorney, successors or assigns. To which payment well and truly to be made, firmly by these presents. Sealed with seal . Dated the day of in the year of our Lord one thousand eight hundred and The Condition of this Obligation is such, That if the above bounden heirs, executors, and administrators, or any of them, shall and do well and truly pay, or cause to be paid unto the above-named their certain attorney, successors or assigns, the just sum of such as abovesaid, at any time within years from the date hereof, together with lawful interest for the same, in like money, payable monthly, on the of each and every month hereafter, and shall also well and truly pay, or cause to be paid unto aforesaid, their successors or assigns, the sum of dollars, on the said of FORMS OF BONDS. I2S each and every month hereafter, as and for the monthly contribution on share of the capital stock of aforesaid, now owned by the said without any fraud or further delay ; provided, however, and it is hereby expressly agreed, that if at any time default shall be made in the payment of the said principal money when due, or of the said interest, or the monthly contribu- tion on said stock, for the space of after any payment thereof shall fall due, then and in such case, the whole principal debt aforesaid shall, at the option of aforesaid, their successors and assigns, immediately thereupon become due, payable^ and recoverable, and payment of said principal sum and all interest thereon, as well as any contribution on said share of stock then due, may be enforced and recovered at once, anything hereinbefore contained to the con- trary thereof notwithstanding. And the said for heirs, executors, administrators, and assigns, hereby expressly waive and relinquish unto aforesaid, their successors and assigns, all benefit that may accrue to by virtue of any and every law, made or to be made, to exempt the premises described in the indenture of mortgage herewith given, or of any other premises whatever, from levy and sale under execution, or any part of the proceeds arising from the sale thereof, from the payment of the moneys hereby secured, or any part thereof, then the above obligation to be void, or else to be and remain in full force and virtue. (Signatures) (Seals.) Executed aitd Delivered in Presence of To Esquire^ Attorney of the Court of Common Pleas at in the County of in the State of or to any otJier Attorney, or to the Prothonoiary of the said Court, or of any other Court, there or elsewhere. Whereas, in and by a certain obligation, bearing even date herewith, do stand bound unto in the sum of lawful money of the United States of America, conditioned for the payment of the just sum of such as abovesaid, at any time within years from the date thereof, together with lawful interest for the same in like money, payable montiily, on the of each and every month thereafter, and should also well and truly pay or cause to be paid unto aforesaid, their successors or assigns, the sum of dollars, on the of each and every month thereafter, as and for the monthly contribution on share of the capital stock of aforesaid, now owned by the said without any fr^ud or further delay ; provided, however, and it is thereby expressly agreed, that if at any time default should be made in the payment of the said principal money when due, or of the said interest, or the monthly contribu- tion on said stock, for the space of after any payment thereof should fall due, then and in such case the whole principal debt aforesaid should at the option of 126 ASSIGNMENTS. aforesaid, their successors and assigns, immediately thereupon become due, payable, and recoverable, and payment of said principal sum, and all interest thereon, as well as any contribution on said share of stock then due, might be enforced and recovered at once, any- thing thereinbefore contained to the contrary thereof notwithstanding. And the said heirs, executors, administrators, and assigns, thereby expressly waive and relinquish unto aforesaid, their successors and assigns, all benefit that might accrue to by virtue of any and every law, made or to be made, to exempt the premises described in the indenture of mortgage therewith given, or of any other premises whatever, from levy and sale under execution, or any part of the proceeds arising from the sale thereof, from the payment of the moneys thereby secured, or any part thereof. These are to desire and authorize you, or any of you, to appear for heirs, executors, or administrators, in the said court or elsewhere, in an action of debt, there or elsewhere brought or to be brought, against heirs, executors, or administrators, at the suit of aforesaid, their successors or assigns, on the said obligation, as of any term or time past, present, or any other subsequent term oi* time, there or elsewhere to be held, and confess or enter judgment thereupon against heirs, executors, or administrators, for the sum of lawful money of the United States of America, debt, besides cost of suit, in such manner as to you shall seem meet ; and for your or any of your so doing this shall be your sufficient warrant. And heirs, executors, and administrators, remise, release, and forever quit claim, unto aforesaid, their certain attorney, successors, and assigns, all and all manner of error and errors, mis- prisons, misentries, defects, and imperfections whatever, in the entering of the said judgment, or any process or proceedings thereon or thereto, or any- wise touching or concerning the same. In Witness Whereof, have hereunto set hand and seal the day of in the year of our Lord one thousand eight hundred and Sealed and Delivered in Presence of {Signatures.) (Seals.) CHAPTER IX. ASSIGNMENTS. The word "assign" usually occurs in almost all forms of transfer and conveyance ; but there are certain instruments to which the name of "Assignment" is more particularly given. FORMS OF ASSIGNMENTS. 127 They are instruments by which other instruments or debts or obligations, as bonds, judgments, wages, and the like, are trans- ferred. Sometimes they are written on the backs of, or elsewhere on the same paper with, the instruments to be transferred by the assignment. Some of these, as assignments of deeds of grant and conveyance, of mortgages, of leases, will be given in the chapters which treat of those topics. Here are given such forms as will enable one to make an assignment for any of the purposes for which assignments are usually made. (31.) Brief Form of an Assignment to be indorsed on a Note, or any Similar Promise or Agreement. I Hereby, for value received, assign and transfer the within written {pr the above written) , together with all my interest in and all my rights under the same, to (name of the Assignee). (Signature) (33.) A G-eneral Assignment, with Power of Attorney. Know all Men. by these Presents, That I for value received, have sold, and by these presents do grant, assign, and con- vey unto (name of the assignee and description of the things assigned.) To Have and to Hold the same unto the said executors, administrators, and assigns forever, to and for the use of hereby constituting and appointing my true and lawful attorney irrevocable in my name, place, and stead, for the purposes aforesaid, to ask, demand, sue for, attach, levy, recover, and receive all such sum and sums of money which ntfw are, or may hereafter become due, owing and payable for or on account of all or any of the accounts, dues, debts, and demands above assigned giving and granting unto the said attorney, full power and authority to do and perform all and every ^ct and thing whatsoever requisite and necessary, as fully, to all intents and purposes, as might or could do, if personally present with full power of substitution and revocation, hereby ratifying and confirming all that the said attorney or substitute shall lawfully do or cause to be done by virtue hereof. ' In Witness Whereof, I have hereunto set my hand and seal the day of , one thousand eight hundred and (Signature.) (Seal.) Executed and Delivered in the Presence of , 128 ASSIGNMENTS. (33.) Assignment of a Bond. Know all Men by these Presents, That in the hereunto annexed obligation named, for and in consideration of the sum of lawful money of the United States of America, unto well and truly paid by at the time of the execu- tion hereof, the receipt whereof hereby acknowledge, have assigned, transferred, and set over, and by these presents, do assign, transfer, and set over unto the said {assignee) his executors, administrators, and assigns, to and for his and their only proper use and behoof, the said hereunto annexed obligation, which is given and executed by to bearing date the day of Anno Domini i8 , to secure the payment of the sum of with lawful interest therein expressed, and all moneys, both principal and interest, thereon due and payable, or hereafter to grow due and payable, with the warrant of attorney to the said obligation annexed : together with all rights, remedies, incidents, and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and all right, title, and interest therein. In Witness Whereof, the said have hereunto set hand and seal , this day of Anno Domini one thousand eight hundred and Sealed and Delivered in the Presence of us, (34.) Assignment of a Bond, with Power of Attorney, and a Covenant. Know all Men by these Presents, That of the first part, for and in consideration of the sum of lawful money of the United States of America, to in hand paid by of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, ha bargained, sold, and assigned, and by these presents do bargain, sell, and assign, unto the said party of the second part, executors, administrators, and assigns, a certain written bond or obligation and conditions thereof, bearing date the day of one thousand eight hundred and executed by and all sum and sums of money due, and to grow due thereon : and the said party of the first -part do covenant with the said party of the second part, that there is now due on the said bond or obligation, according to the condi- tions thereof, for principal and interest, the sum of and do hereby authorize the said party of the second part, in name to ask, demand, sue for, recover, receive, and enjoy, the money due and that may grow due thereon, as aforesaid. FORMS OF ASSIGNMENTS. 1,29 In Witness Whereof, have hereunto set hand and seal the day of one thousand eight hundred and Sealed and Delivered in the Presence of (35.) Assignment of a Judgment, in the Form of an Indenture. This Indenture, Made the day of one thousand eight hundred and between {assignor) of the first part, and {assignee) of the second part. Whereas, The said part of the first part one thousand eight hundred and recovered by judgment in the {name of court) against one the sum of Now this Indenture Witnesseth, That the said part of the first part, in consideration of to duly paid, ha sold and by these presents do assign, transfer, and set over urito the said part of the second part, and assigns, the said judgment, and all sum and sums of money that may be had or obtained by means thereof, or on any proceedings to be had thereupon. And the said part of the first part, do hereby constitute and appoint the said part of the second part, and assigns, true and lawful attorney, irrevocable, with power of substitution and revocation for the use, and at the proper costs and charges of the said part of the second part, to ask, demand, and receive, and to sue out executions, and take all lawful ways for the recovery of the money due or to become due on the said judgment : and on payment to acknowledge satisfaction, or discharge the same. And attorneys one or more under , for the purpose aforesaid, to make and substitute, and at pleasure to revoke ; hereby ratifying and confirming all that said attorney or substitute shall lawfully do in the premises. And the said part of the first part do covenant, that there is now due on the said judg- ment the sum of and that will not collect or receive the same, or any part thereof, nor release or discharge the said judgment, but will own and allow all lawful proceedings therein, the said part of the second part saving the said part of first part, harmless of and from any costs in the premises. In Testimony Whereof, The part of the first part, ha hereunto set hand and seal the day and year first above written. {Seats.} Sealed and Delivered in the Presence of (36.) Assignment of Wages, with Power of Attorney. Know all Men by these Presents, That I of in the County of in consideration of to me paid by of the receipt whereof I do hereby 1 30 SALES OF PERSONAL PROPERTY. acknowledge, dO hereby assign and transfer to said all claims and demands which 1 now have, and all which, at any time between the date hereof and the day of next, I may and shall have against for all sums of money due, and for all sums of money and demand which, at any time between the date hereof and the said day of next, may and shall become due to me, for services as to have and to hold the same to the said his executors, administrators, and assigns forever. And I, * do hereby constitute and appoint the said and his assigns to be my attorney irrevocable in the premises, to do and perform all acts, matters, and things touching the premises, in the like manner to all intents and purposes as I could if personally present. In Witness Whereof, I have set my hand and seal, this day of i8 . {Seal.) Signed, Sealed, and Delivered in Presence of CHAPTER X. SALES OF PERSONAL PEOPERTT. SECTION L WHAT CONSTITUTES A SALE. It is important to distinguish carefully between a sale and an agreement for a future sale. This distinction is sometimes overlooked ; and hence the phrase " an executory contract of sale," that is, a contract of sale which is to be executed here- after, has come into use ; but it is not quite accurate to speak of this as if it were a sale. Every actual sale is an executed contract, although payment or delivery may remain to be made. There may be an executory contract for sale, or a bargain that a future sale shall be made ; but such a bargain is not a present sale ; nor does it confer upon either party the rights or the obligations which grow out of the contract of sale. A sale of goods is the exchange thereof for money. More precisely, it is the transfer of the property in goods from a seller to a buyer, for a price paid, or to be paid, in money. It differs from an exchange, in law ; for that is the transfer of WHAT CONSTITUTES A SALE. 131 chattels for other chattels ; while a sale is the transfer of chat- tels for money, which is the representative of all value. Here we must pause to speak of the legal meaning of the word " property." It is seldom or never used in the law as it is in common conversation, to mean the things themselves which are bought, or sold, or owned. Because in law it means the ownership of the things, and not the things themselves. If a bargain transfers the property in (which means the ownership of) the thing to another person for a price, it is a sale ; and if it does not transfer the property, it is not a sale ; and, on the other hand, if it be not a sale, it does not transfer the property. As soon as a thing is sold the buyer owns it, wherever it may be. And to constitute a sale at common law, all that is necessary is the agreement of competent parties that the property in (or ownership of) the subject-matter shall then pass from the seller to the buyer for a fixed price. The sale is made when the agreement is made. The com- pletion of the sale does not depend upon the delivery of the goods by the seller, nor upon the payment of the price by the buyer. By- the mutual assent of the parties to the terms of the sale, the buyer acquires at once the property and all the rights and liabilities of property ; so that, in case of any loss or depre- ciation of the articles purchased, the buyer will be the sufferer ; and he will be the gainer by any increase in their value. It is, however, a presumption of the law, that the sale is to be immediately followed by payment and delivery, unless other- wise agreed upon by the parties. If, therefore, nothing appears but a proposal and an acceptance, and the vendee departs with- out paying or tendering the price, the vendor may elect to consider it no sale, and may, therefore, if the buyer comes at a' later period and offers the price and demands the goods, refuse to let him have them. But a credit may be agreed on expressly, and the seller will be bound by it ; and so he will be if the credit is inferred or implied from usage or from the circumstances of the case. And if there be a delivery and acceptance of the goods, or a receipt by the seller of earnest, or of part payment, the legal inference is that both parties agree to hold themselves 133 SALES OF PERSONAL PROPERTY. mutually bound by the bargain. Then the buyer has either the credit agreed upon, or such credit as from custom or the nature or circumstances of the case is reasonable. But neither deliv- ery, nor earnest, nor part-payment, is essential to the com- pletion of a contract of sale. They only prevent the seller from rescinding the contract of sale without the consent of the purchaser. Their effect upon sales under the provisions of the Statute of Frauds will be considered in the chapter on that sub- ject. It may also be said that no one can be made to buy of another without his own assent. Thus, if A sends an order to B for goods, and C sends the goods, he cannot sue for the price, if A repudiates the sale, although C had bought B's business. The seller (if no delivery with credit for the price is agreed on) has a right to retain possession of the property sold until the price is paid. This right is called a lien, which means the right of retaining possession of property until some charge upon it, or some claim on account of it, is satisfied. It rests, there- fore, on possession. Hence the seller (and every other person who has a lien) loses it by voluntarily parting with the posses- sion, or by a delivery of the goods. And it is a delivery for this purpose, if he delivers a part without any purpose of sever- ing that part from the remainder ; or if he make a symbolical delivery which vests this right and power of possession in the buyer, as by the delivery of the key of a warehouse in which they are locked up. If the seller delivers the goods to the buyer, as he thereby loses his lien, he cannot afterwards, by virtue of this lien, retake the goods and hold them. But if the delivery was made with an express agreement that non-payment of the price should revest the property in the seller, this agreement may be valid, and the seller can reclaim the goods from the buyer if the price be not paid. If the buyer neglect or refuse to take the goods and pay the price within a reasonable time, the seller may resell them on notice to the buyer, and look to him for the deficiency by way of damages for the breach of the contract. The seller, in making such resale, acts as agent or trustee for the buyer ; and his proceedings will be regulated and governed by the rules WHAT CONSTITUTES A SALE. 133 usually applicable to persons acting in those capacities; and the principal one of these is, that he will be held to due care and diligence, and to perfect good faith. Certain' consequences flow from the rules and principles already stated which should be noticed. Thus, if the party to whom the offer of sale is made accepts the offer, but still refuses or neglects to pay the price, and there are no circum- stances indicating a credit, or otherwise justifying the refusal or neglect, the seller may, as we have said, disregard the accept- ance of his offer, and consider the contract as never made, or as rescinded. It would, however, be proper and prudent on the part of the seller expressly to demand payment of the price before he treated the sale as null ; and a refusal or neglect would then, give him at once a right to hold and treat the goods as his own. So, too, if the seller unreasonably neglected or refused to deliver the 'goods sold, and especially if he refused to deliver them, the buyer thereby acquires the right to consider that no sale was made, or that it has been avoided (or annulled). But neither party is bound to exercise the right thus acquired by the refusal or neglect of the other, but may consider the sale as complete ; and the seller may sue the buyer for non-pay- ment, or the buyer may sue the seller for non-delivery. If the seller has merely the right of possession, as if he hired the goods ; or if he has the possession only, as if he stole them, or found them, he cannot sell them and give good title to the buyer against the owner ; and the owner may therefore recover them even from an honest purchaser who was wholly ignorant of the defect in the title of him from whom he bought them. This follows from the rule above stated, that only he who has in himself a right of property can sell a chattel, because the sale must transfer the right of property from the seller to the buyer. The only exception to the above rule is where money, or negotiable paper transferable by delivery (which is considered as money), is sold or paid away. In either case, he who takes it in good faith, and for value, from a thief or finder, holds it by good title. But if the owner once sold the thing, although he was deceived and induced to part with . his property through fraud, he cannot reclaim it from one who in good faith buys it from the fraudulent party. 134 SALES OF PERSONAL PROPERTY. If anything remains to be done by the seller, to or in rela- tfon to the goods sold, for their ascertainment, identification, or completion, the property in the goods does not pass until that thing is done, and there is as yet no completed sale. There- fore, if there be a bargain for the sale of specific goods, but there remains something material which the seller is to do to them, and they are casually burnt or stolen, the loss is the sell- er's, because the property (or ownership) had not yet passed to the buyer. So, if the goods are a part of a large quantity, they remain the seller's until selected and separated ; and even after that, until recognized and accepted by the buyer, unless it is plain from words or circumstances that the selection and separation by the buyer are intended to be conclusive upon both parties. If repairing or measuring or counting must be done by the seller before the goods are fitted for delivery or the price can be determined, or their quantity ascertained, they remain, until this be done, the seller's. And where^ part is measured and delivered this part passes to the vendee, but the portion not so set apart does not. But if the seller delivers them and the buyer accepts them, and any of these acts remain to be done, these acts will not be considered as belonging to the contract of sale, for that will be regarded as completed, and the owner- ship of the goods will have passed to the buyer, and these acts will be taken only to refer to the adjustment of the final settle- ment as to the price. Thus, a purchaser offers a nurseryman a dollar apiece for two hundred out of a row of two thousand trees, which are all alike, and the offer is accepted. This is no sale, because any two hundred may be delivered, and therefore the property or owner- ship of any specific two hundred does not pass. But if the purchaser or seller had said the first two hundred in the row, or the last, or every third tree, or otherwise indicated the specific trees, there would have been a sale, and by the sale those specific trees would have become at once the trees of the buyer. The seller would dig up and deliver them as the buyer's trees, and if they were burned up by accident an hour after the sale, and before digging, the buyer would lose the trees. If not specified,. DELIVER Y AND ITS INCIDENTS. 1 3 5 however, even if they were paid for, they remain the property of the nurseryman, because, instead of an actual sale, there is only a bargain that he will select two hundred from the lot, and take up and deliver them. And if they are destroyed before delivery, this is the loss of the nurseryman. Moreover, it is to be noticed that a contract for a future sale to take place either at a future point of time, or when a certain event happens, does not, when that time arrives, or on the hap- pening of the event, become of itself a sale, transferring the property. The party to whom the sale was to be made does not then acquire the property, and cannot by tendering the price acquire a right to possession ; but he may tender the price, or whatever else would be the fulfillment of his obliga- tion, and then sue the owner for his breach of contract, if he will not deliver the goods. But the property in the goods remains in the original owner. For the same reason that the property in the goods must pass by a sale, there can be no actual sale of any chattel or goods which have no existence at the time. It may, as we have seen, be a good contract for a future sale, but it is not a present sale. Thus, in contracts for the sale of articles yet to be manu- factured, the subject of the contract not being in existence when the parties enter into their engagement, no property passes until the chattel is in a finished state, and has been specially appropriated to the person giving the order, and approved and accepted by him. As there can be no sale unless of a specific thing, so there is no sale but for a price which is certain, or which is capable of being made certain by a distinct reference to a certain standard. SECTION II. DELIVERY AND ITS INCIDENTS. When a sale is effected, the buyer has an immediate right to the possession of the goods, as soon as he pays or tenders the price ; or at once, without payment, if the sale be on credit. And the seller is bound to deliver the goods. What is a sufficient delivery is sometimes a question of 136 SALES OF PERSONAL PROPERTY. difficulty. In general, it is sufficient, if the goods are placed in the buyer's hands or his actual possession, or if that is done which is the equivalent of this transfer of possession. Some modes and instances of delivery we have already seen. We add, that if the goods are landed on a wharf alongside of the ship which brings them, with notice to the buyer, or knowledge on his part, this may be a sufficient delivery, if usage, or the obvious nature of the case, make it equivalent to actually giving possession. And usage is of the utmost importance in determining questions of this kind. In general, the rule may be said to be, that that is a sufficient delivery which puts the goods within the actual reach or power of the buyer, with immediate notice to him, so that there is nothing to prevent him from taking actual possession. When, from the nature or situation of the goods, an actual delivery is difficult or impossible, as in case of a quantity of timber floating in a boom, slight acts, as touching the timber, or even going near it and pointing it out, are sufficient to con- stitute a delivery, if they sufficiently indicate the transfer of possession. So if the property which is the subject of the sale is at sea, the indorsement and delivery of the bill of lading, or other instrument of title, is sufficient to constitute a delivery, and by such indorsement and delivery of the bill of lading the property in the goods immediately vests in the buyer; and he can transfer this to one who buys of him., by his own indorse- ment and delivery of the bill of lading. Where goods at sea are sold, the seller should send or deliver the bill of lading to the buyer within a reasonable time, that he may have the means of offering the goods in the market. And it has been held that a refusal of the bill of lading authorized the buyer to rescind the sale. Until delivery, the seller is bound to keep the goods with ordinary care, and is liable for any loss or injury arising from the want of such care or of good faith. But if he exercises ordinary care and diligence in keeping the commodity, he is not liable for any loss or depreciation of it, unless this arises from some defect which he has warranted not to exist. Thus, in a case in New York, A sold to B a certain quantity of beef, B DELIVERY AND ITS INCIDENTS. 137 paying the purchase-money in full ; and it was agreed between them that the beef should remain in the custody of A until it should be sent to another place. Some time after, B received a part, which proved to be bad, and the whole was found, on inspection, to be unmerchantable. The court held that, as the beef was good at the time of its sale, the vendee (or buyer) must bear the loss of its subsequent deterioration. If the buyer lives at a distance from the seller, the seller must send the goods in the manner indicated by the buyer. If no directions are given, he must send them in such a way as usage, or in the absence of usage, as reasonable care would require. And generally all customary and proper precautions should be taken to prevent loss or injury in the transit. If these are taken, the goods are sent at the risk of the buyer, and the seller is not responsible for any loss. But he is responsible for any loss or injury happening through the want of such care or precaution. And if he sends them by his own servant, or carries them himself, they are in his custody, and, generally, at his risk, until delivery. But if the buyer distinctly indicates the way or means by which he wishes that the goods should be sent to him, as by such a carrier, or such a line, if the seller complies with his directions, and exercises ordinary care over the goods until they are' delivered to the person or line so pointed out, his responsibility ends with this delivery, in the same manner as it would if he delivered the goods into the hands of the owner. This question of delivery has a very great importance in another point of view ; and that is, as it bears upon the honesty, and therefore the validity, of the transaction. As the owner of goods ought to have them in his possession, and as a transfer of possession usually does, and always should, accompany a sale, the want of this transfer is an indication, more or less strong, that the sale is not a real one, but a mere cover. The prevail- ing rule may be stated thus : Delivery is not essential to a sale at common law ; but if there is no delivery, and a third party, without knowledge of the previous sale, purchases the same thing from the seller, he gains an equally valid title with the first buyer; and if he completes this title by acquiring posses' 138 SALES OF PERSONAL PROPERTY. sion of the thing before the other, he can hold it against the other. So, also, unless delivery or possession accompany the transfer of the right of property, the things sold are subject to attachment by the creditors of the seller. And if the sale be completed, and nevertheless no change of possession takes place, and there is no certain and adequate cause or justification of the want or delay of this change of possession, the transac- tion will be regarded as fraudulent and void in favor of a third party, who, either by purchase or by attachment, acquires the property in good faith, and without a knowledge of the former sale. This fact, that the thing sold remained in the possession of the seller, might be explained, and if shown to be perfectly consistent with honesty, and to have occurred for good reasons, and especially if the delay in taking possession was brief, the title of the first buyer would be respected. If goods are sold in a shop or store, separated, and weighed or numbered if that be necessary, and put into a parcel, or otherwise made ready for delivery to the buyer, in his presence, and he request the seller to keep the goods for a time for him, this is so far a delivery as to vest the property in the goods in the buyer, and the seller becomes the bailee of the buyer. And if the goods are lost while thus in the keeping of the seller, without his fault, it is the loss of the buyer. (In law the word bail means "to deliver." Thus a "bailor" is one who delivers a thing to another; the "bailee" is the party to whom it is delivered; and "bailment" is the delivery. The "bail" of a party who is arrested, is he or they to whom the arrested person is delivered or given up, on their agreement that he shall be forthcoming when required by law.) In a contract of sale there is sometimes a clause providing that a mistake in description, or a deficiency in quality or quantity, shall not avoid the sale, but only give the buyer a right to deduction or compensation. But if the mistake or defect be great and substantial, and affects materially the availability of the thing for the purpose for which it was bought, the sale is nevertheless void, for the thing sold is not that which was to have been sold. If the buyer knowingly receives goods so deficient or so DELIVERY AND ITS INCIDENTS. 135 different from what they should have been that he might have refused them, he will "be held to have waived the objection, and to be liable for the whole price ; unless he can show a good rea- son for not returning them, as in the case of materials innocently iised before discovery of the defects, or the like. Thus, where a man bought a chandelier warranted sufificient to light a certain room, and kept it six months, the court did not permit him to return it and refuse payment, although it was not what it had been warranted to be. Sometimes two or three months, or even less, is held too long a keeping to permit a subsequent return. ■ But though the buyer cannot return the thing, yet, when the price is demanded, he may set off whatever damages he has sustained by the seller's breach of contract, and the seller can recover only the value to the buyer of the goods sold, even if that be nothiiag. But a long delay or silence may imply a waiver of even this right on the part of the buyer. One who orders many things at one time, and by one bargain, may, generally, refuse to receive a part without the rest ; but if he accepts any part, he severs that part from the rest, and rebuts (or removes) the presumption that it was an entire contract ; the buyer will then "be held as having given a separate order for each thing, or part, and as therefore bound to receive such parts as are tendered, unless some distinct reason for refusal attaches to them. If many several things are bought at one auction, but by different bids, and especially if the name of the buyer be marked against each, there is a separate sale to him of each one, and it is independent of the others ; so that he must take and pay for any one or more, although the others are not what they should be, or cannot be had. If, however, it could be shown by the nature of the case, or by evidence, that the things were so connected that one was bought entirely for the sake of the other, he would not be obliged to take the one unless he could have the other. This rule applies also when the things sold are lots of land. Indeed, the general rule may be stated thus. The question whether it is one contract, so that the buyer shall not be bound to receive any part unless the whole be tendered to him, will be determified by ascertaining from all the facts whether the parts so belong together that it may reasonably be 140 SALES OF PERSONAL PROPERTY. supposed that none would have been purchased if the whole had not been purchased, or if any part could not have been pur- chased. The buyer may have, by the terms of the bargain, the right of redelivery. For sales are sometimes made upon the agree- ment that the purchaser may return the goods within a fixed, or within a reasonable time. He may have this right without any condition, and then has only to exercise it at his discretion. But he may have the right to return the thing bought, only if it turns out to have, or not to have, certain qualities ; or only upon the happening of a certain event. In such case the burden of proof is on him to show that the circumstances exist which are necessary to give him this right. In either case the property vests in the buyer at once, as in ordinary sales; but subject to the right of return given him by the agreement. If he does not exercise his right within the agreed time, or within a reasonable time if none be agreed upon, the right is wholly lost, the sale becomes absolute, and the price of the goods may be recovered in an action for goods sold and delivered. And if during the time the buyer so misuse the property as to materially impair its vsr.lue, he cannot tender it back, but is liable for the price. SECTION III. CONTRACTS VOID FOR ILLEGALITV OR FRAUD. As the law will not compel or require any one to do that which it forbids him to do, no contract can be enforced at law which is tainted with illegality. It may, however, be necessary to consider whether the contract be entire or separable into parts, and whether it is wholly or jDartially illegal. If the whole consideration, or any part of the consideration, be illegal, the promise founded upon it is void, whether thd promise is legal or not. But if the consideration is legal, and the promise is in part legal and in part illegal, it is valid for the legal part and may be enforced for that part. Thus, if a master of a vessel agreed to smuggle goods, and in consideration of his doing so the owner promised to pay him one-fourth of his profits, and also to advance twenty dollars a month to his family during a certain CONTRACTS VOID FOR ILLEGALITY OR FRAUD. 141 time, the master could enforce no part of this promise, and recover no damages for any breach of it, because the considera- tion is illegal. But if, for one thousand dollars paid, the receiver agreed to sell and deliver a quantity of merchandise, and also to assist the buyer in some contemplated fraud, he would be bound to sell and deliver the goods, because the consideration was legal, and this part of the promise was legal, but not to assist in the fraud, because this part of the promise is illegal. I mean to say, that if a whole promise, or any part of a promise that cannot be severed into substantial and independent parts, is illegal, the whole promise is void. But if the consideration is legal, and the promise is legal in part and illegal in part, and that part of the promise which is legal can be severed from that part which is illegal, and then be a substantial promise having a value of its own, this legal part can be enforced. For further remarks upon this subject, however, I refer to the previous chapter on Con- sideration. Formerly, an agreement to sell at a future day goods which the promisor had not at the time, and had not contracted to buy, and had no notice or expectation of receiving by consignment, was considered open to the objection that it was merely a wager, and therefore void. But later cases have admitted it to be a valid contract. We have already , said, in a preceding chapter, that fraud vitiates and avoids every contract and every transaction. Hence, a wilfully false representation by which a sale is effected; or a purchase of goods with the design of not paying for them ; or hindering others from bidding at auction by wrongful means ; or selling at auction, and providing by-bidders to run the thing up fraudulently; or selling "with all faults," and then purposely concealing and disguising them, as when a man advertised a ship for sale at auction " with all faults," but purposely put her in a situation where an important fault could not be easily detected ; or any similar act, will avoid a sale. No title or right passes by such sale to the fraudulent party; but the innocent party, whether buyer or seller, may waive the fraud, and insist that the fraudulent party shall not take advantage of his own fraud to avoid the sale. 142 SALES OF PERSONAL PROPERTY. A buyer who is imposed upon by a fraud, and therefore has a right to annul the sale, must exercise this right as soon as may be after discovering the fraud. He does not lose the right necessarily by every delay, but certainly does by any consid- erable and unexcused delay. A seller may rescind and annul a sale if he were induced to make it by fraud. But he may waive the right and sue for the price. If, however, the fraudulent buyer gets the goods on a credit, and the seller sues for the price before the credit expires, this suit is a confirmation of the whole sale, including the credit ; or rather it is an entire waiver of his right to annul the sale, and the suit cannot be maintained until the credit has wholly expired. If a party who has been defrauded by any contract brings an action to enforce it, this is a waiver of his right to rescind, and a confirmation of the contract. Or if, with knowledge of the fraud, he offers to perform the contract on conditions which he had no right to exact, this has been held so effectual a waiver of the fraud that he cannot set it up in defense, if sued on the contract. SECTION rv. SALES WITH WARRANTY. A SALE may be with warranty ; and this may be general, or particular and limited. A general warranty does not extend to defects which are known to the purchaser ; or which are open to inspection and observation, unless the purchaser is at the time unable to discover them readily, and relies rather upon the knowledge and warranty of the seller. A warranty may also be either express or implied. It is not implied by the law gen- erally merely from a full, or, as it is called, a sound price. The rule of law, caveat emptor {let the buyer take care), prevents this. But this rule never applies to cases of fraud. As a general rule, however, mere silence on the part of the seller is not fraud; but the usage of the trade will be considered, and if that require a declaration of certain defects whenever they exist, the absence of such a declaration is a warranty against such defects. Mere declarations of opinion are not a warranty. Thus, in England, SALES WITH WARRANTY. I^j an action was brought on a warranty that certain goods were fit for the China market. The plaintiff produced a letter from the defendant, saying that he had goods fit for the China market, which he offered to sell cheap. But the court held that such a letter was not a warranty, but merely an invitation to trade, it not having any specific reference to the goods actually bought by the plaintiff. If these declarations are intended to deceive, and have that effect, they may avoid the sale for fraud. And affirmations of quantity or quality, which are made pending the negotiations for sale, with a view to procure a sale, and have that effect, will be regarded as a warranty; thus, in New York, it was held that a representation made by a vendor, upon a sale of flour in bar- rels, that it was in quality superfine or extra-superfine, and worth a shilling a barrel more than common, coupled with the assur- ance to the buyer's agent that he might rely upon such repre- sentation, was a warranty of the quality of the flour. So in England, where upon the sale of a horse the vendor said to the vendee, "You may depend upon it, the horse is perfectly quiet and free from vice;" this was held to amount to an express warranty that he was quiet and free from vice. Goods sold by sample are warranted by such sale to conform to the sample ; but there is no warranty that the sample is what it appears to be. Thus, in England, there was a sale of five bags of hops, with express warranty that the bulk answered the samples by which they were sold. The sale was in January ; at that time the samples fairly answered to the commodity sold, and no defect was at that time perceptible to the buyer. In July following, every bag was found to have become unmer- chantable and spoiled, by heating, caused probably by the hops having been fraudulently watered by the grower, or some other person, before they were purchased by the defendant. The seller knew nothing of this fact at the time of sale, and the samples were as much damped as the rest ; and it was then impossible to detect it. It "was held by the court that there was here no implied warranty that the bulk of the commodity was merchantable at the time of sale, although a merchantable price was given. 144 SALES OF PERSONAL PROPERTY. A breach of warranty does not always authorize the buyer to return the article sold, unless there be an agreement to that effect, or fraud ; but only to sue on the warranty, and recover damages for the breach of it. But if one orders a thing for a special purpose known to the seller, he may certainly return it if it be unfit for that purpose, if he does so as soon as he ascertains its unfitness. The seller of goods actually in his possession as owner is held to warrant his own title by the fact of the sale. But if the property be not in the possession of the vendor, and there be no assertion or ownership by him, no implied warranty of title arises. If a thing is ordered for a special purpose, and is supplied, there is an implied warranty that it is fit for that purpose. In one case, the defendant was a dealer in ropes, and represented himself to be a manufacturer of the article. The buyer, a wine- merchant, applied to him for a crane-rope. The seller's foreman went to the buyer's premises, in order to ascertain the dimen- sions and kind of rope required. He examined the crane and the old rope, and took the necessary admeasurements, and was told that the new rope was wanted for the purpose of raising pipes of wine out of the cellar, and letting them down into the street ; when he informed the buyer that a rope must be made on purpose. The seller did not make the rope himself, but sent the order to his manufacturer, who employed a third person to make it. It was held that, as between the parties to the sale, there was an implied warranty that the rope was a fit and proper one for the purpose for which it was ordered. And the seller was held responsible, not only for the rope, which broke, but for a pipe of wine which was thereby lost. This principle must not be applied to those cases where an ascertained article is purchased, although it be intended for a special purpose. For if the thing itself is specifically selected and purchased, the purchaser takes upon himself the risk of its effecting its purpose. This is illustrated in an English case thus : " If a man says to another, ' Sell me a horse fit to carry me,' and the other sells a horse which he knows to be unfit to ride, he will be liable for the consequences ; but if a man says, FORMS OF BILLS OF SALE. I45 ' Sell me that gray horse to ride,' and the other sells it, knowing that the buyer will not be able to ride it, that would not make him liable." If he said, " Sell me that gray horse «/he is fit to ride," and the seller sold it knowing he was not fit, he would be liable. It has been much discussed whether a bill of sale, describing the article sold, amounts to a warranty that the article conforms to the description. It seems now to be well settled that it does. In a recent Massachusetts case, there was a bill of sale as follows : " H. & Co. bought of T. W. & Co. two cases of indigo, $2'J2." The article sold was not indigo, but principally Prussian blue. No fraud was imputed to the seller, and the article was so pre- pared as to deceive experienced, and skilful dealers in indigo. The naked question was presented, whether the bill of sale con- stituted a warranty that the article sold was indigo. And the court held that it did. Here the warranty implied by the bill of sale was as to the kind of goods. In another case the bill was, " Sold E. T. H. 2,000 gallons prime quality winter oil." The thing sold was oil, and winter oil ; but not prime quality. And the Court held that the bill of sale amounted to a warranty that it was of that quality. In an English case, a vessel was advertised for sale as " copper fastened ; " and that was held to be a warranty that she was so fastened according to the usual understanding of merchants. One who sells provisions is always considered in law as war- ranting that they are good and wholesome. (37.) Bill of Sale of Personal Property. Know all Men by these Presents, That I {^name of the seller) in the county of for and in consideration of the sum of to in hand well and truly paid, at or before signing, sealing, and delivery of these presents, by (?iame of the buyer) the receipt whereof I the said do hereby acknowledge, have granted, bargained, and sold, and by these presents do grant, bargain, and sell unto the said To Have and to Hold the said granted and bargained unto the said heirs, executors, administrators, and assigns, to only proper use, benefit, and behoof forever, and the said does vouch himself to be the true and lawful owner of the 10 146 . SALES OF PERSONAL PROPERTY. goods and effects hereby sold, and to have in himself full power, good right, and lawful authority to dispose of the said in manner as aforesaid, and I do, for myself, my heiis, executors, and administrators, hereby covenant and agree to warrant and defend the said (the goods sold) imto the said heirs, executors, and administrators, and assigns, against tlie lawful claims and demands ol all persons whomsoever: In Witness "Whereof, the said have hereunto set hand and seal this day of in the year of our Lord one thousand eight hundred and Execzcted and Delivered in Presence of (38.) Bill of Sale of Personal Property, with a Condition to make it a Mortgage, with Power of Sale. Know all Men by these Presents, That in consideration of paid by the receipt whereof is hereby acknowledged, do hereby grant, sell, transfer, and deliver unto the said the following goods and chattels, namely : To Have and to Hold all and singular the said goods and chattels to the said and executors, administrators, and assigns, to their own use and behoof forever. And hereby covenant with the grantee that the lawful owner of the said goods and chattels ; that they are free from all incumbrances, that have good right to sell the same as aforesaid ; and that will warrant and defend the same against the lawful claims and demands of all persons. Provided Nevertheless, that if the grantor , or executors, administrators, or assigns shall pay unto the grantee or, executors, administrators, or assigns, the sum of in from this date, with interest semi-annually at the rate of per cent, per annum, and until such payment shall not waste or destroy the same, nor suf- fer them or any part thereof to be attached on mesne process ; and shall not, except with the consent in writing of the grantee or representa- tives, attempt to sell or to remove from the same or any part thereof, — then this deed, as also note of even date herewith, signed by the said whereby promise to pay to the grantee or order the said sum and interest at the times aforesaid, shall be void. But upon any Default in the performance of the foregoing condition, the grantee , or executors, administrators, or assigns, may sell the said goods and chattels by public auction, first giving day's notice in writing of the time and place of sale to the grantor or representa- THE SALE OF ONE'S BUSINESS. M7 tives. And out of the money arising from such sale the grantee , or representatives shall be entitled to retain all sums then secured by this mort- gage, whether then or thereafter payable, including all costs, charges, and expenses incurred or sustained by them in relation to the said property, or to discharge any claims or liens of third persons affecting the same, rendering the surplus, if any, to the grantor or executors, administrators, or assigns. And it is Agreed, that the grantee , or executors, administrators, or assigns, or any person or persons in their behalf, may purchase at any sale made as aforesaid ; and that, until default in the performance of the condition of this deed, the grantor and executors, administrators, and assigns, may retain possession of the above-mortgaged property, and may use and enjoy the same. In "Witness Whereof, the said hereunto set hand and seal , this day of in the year one thousand eight hundred and Signed, Sealed, and Delivered in Presence of SECTION V. THE SALE OF ONE's BUSINESS. Such sales are not unfrequent in this country ; and the seller always agrees and promises that he will not pursue that trade, business, or occupation again. There are numerous cases, both in English law-books and in our own, which have arisen from bargains of this kind. The law seems now to be settled, that such a contract is wholly void and inoperative, pro- vided the seller agrees to give up his business and never resume it again, at any time or anywhere ; that is, without any limita- tion of space or time ; because it is against the public interest that a man should be permitted to cast himself out from his business or trade for the rest of his life. But the contract is good, if for a fair consideration the seller agrees not to resume or carry on that business within a certain time, or within certain limits. What these limits must be is not certain. The courts say they must be " reasonable," and made in good faith. A contract not to carry on a business in a certain town would undoubtedly be good. So, we should say, would be a bargain not to do so within a certain State. In one case in Massachu- setts, a contract not to use certain machines in any of the 148 . STOPPAGE IN TRANSITU. United States except two (which were Massachusetts and Rhode Island) was held valid, all of the States but two being considered as a sufficiently defined or limited place ; but this was unusual. The courts generally would sanction such a bargain, if it were limited to only a part of the United States ; as to all New England, for example. In such a contract, it would be better for the parties to agree upon the amount which the seller should pay by way of damages, if he violated his bargain, because it might be very difficult to prove specific damages ; and such a bargain, if it were reasonable, would be enforced by law. Such damages, agreed on beforehand, are called liqicidated damages. In all cases where damages are demanded, and are not agreed on, they are called unliquidated damages, and it is the duty of the jury to determine, from the evidence before them, what damages the injured party has suffered, and what amount would indemnify him. CHAPTER XL STOPPAGE IN TRANSITU. Here is an instance where a Latin phrase has become English, by general adoption and use. In transitu means "in the transit," and the English phrase may just as well be used; but the Latin one is used much oftener. What the whole IDhrase Stoppage in transitu means, is this. A seller, who has sent goods to a buyer at a distance, and after sending them learns that the buyer is insolvent, may stop the goods at any time before they reach the buyer. His right to do this is called the right of Stoppage in transitu. If the goods are sent to pay a precedent and existing debt, they are not subject to this right. The right exists only upon actual insolvency ; but this need not be formal insolvency, or bankruptcy at law ; an actual inability to pay one's debts in the usual way being enough. If the seller, in good faith, stops the goods, in a belief of the STOPPAGE IN TRANSITU. I^g buyer's insolvency, the buyer may at once defeat this stoppage, and reclaim the goods, by payment of the price. So he may, by a tender of adequate security, if the sale be on credit. The stoppage must be effected by the seller, and evidenced by some act ; but it is not necessary that he should take actual possession of the goods. If he gives a distinct notice to the party in possession, whether carrier, warehouseman, middleman, or whoever else, before the goods reach the buyer, this is enough. But a notice of stoppage in transitu, to be effectual, must be given either to the person who has the immediate custody of the goods ; or if to the principal whose servant has the custody, then at such a time, and under such circumstances, as that he may, by the exercise of reasonable diligence, com- municate it to his servant in time to prevent the delivery to the consignee. Goods can be stopped only while in transitu ; and they are in transitu only until they come into the possession of the buyer. But this possession need not be actual, a constructive possession by the buyer being sufficient to prevent this stop- page ; as if the goods are placed on the wharf of the buyer, or on a neighboring wharf with notice to him, or in a warehouse with delivery of the key to him, or of an order on the ware- houseman. But the entry of the goods at the custom-house, without payment of duties, does not terminate the transit. If the buyer has demanded and marked them at the place where they had arrived on the termination of the voyage or journey, per- sonally or by his agent ; or if the carrier still holds the goods, but only as the agent of the buyer ; in all these cases the transit is ended. But if the carrier holds them by a lien for his charges against the buyer, the seller may pay these charges and discharge the lien, and then stop the goods in transitu. If the buyer has, in good faith and for value, sold the goods, "to arrive," before he has received them, and indorsed and delivered the bill of lading, this second purchaser holds the goods free from the first seller's right to stop them. But if the goods and bill are transferred only as security for a debt due from the first purchaser to the transferee, the original seller I50 GUARANTY. may stop the goods, and hold them subject to this security, and need pay only the specific advances made on their credit, or on that very bill of lading, and not a general indebtedness of the first purchaser to the second. A seller who stops the goods in transihi does not rescind the sale, but holds the goods as the property of the buyer ; and they may be redeemed by the buyer or his representatives, by paying the price for which they are a security ; and if not redeemed, they become the seller's, only in the same way as a pledge might become his ; that is, he may sell them at a proper time, and in a proper manner, and with due notice, so that the buyer may protect his interests. And if the seller then fails to obtain from them the full price due, he has a claim for the balance upon the buyer. If he gets more than the amount due to him, he must pay over the balance to the buyer or his assignees. An honest buyer, apprehending bankruptcy, might wish to return the goods to their original owner; and this he could undoubtedly do, if they have not become distinctly his prop- erty, and the seller his creditor for the price. But if they have, the buyer has no more right to benefit this creditor by such an appropriation of these goods, than any other creditor by giving him any other goods. CHAPTER XII. GUAHANTY. A GUARANTOR is One who is bound to another for the fulfil- ment of a promise, or of an engagement, made by a third party. This kind of contract is very common. Generally it is not negotiable ; that is, not transferable so as to be enforced by the transferee as if it had been given to him by the guarantor. No special form or words are necessary to the contract of guaranty ; and if the word " guarantee " be used, and the whole instru- ment contains all the characteristics of a note of hand, payable to order or bearer, then it is negotiable. Thus, in a case in GUARANTY. I^j New York, the instrument was as follows : " For and in con- sideration of thirty-one dollars and fifty cents received of B. F. Spencer, I hereby guarantee the payment and collection of the within note to him or bearer. Auburn, Sept. 25, 1837. (Signed) Thomas Burns." And it was held negotiable. What negotiable means will be more fully explained in the chapter on Notes of Hand and Bills of Exchange. The guaranty may be enforced, although the original debt cannot ; as, for example, the guaranty of the promise of a wife or an infant ; and sometimes the guaranty of a debt is requested, and given, for the very reason that the debt is not enforceable at law. But, generally, the liability of the principal measures and limits the liability of the guarantor. And if the creditor agree that the principal debt shall be reduced or lessened in a certain proportion, the obligation of the guarantor is reduced by law in an equal proportion. A conti-act of guaranty is construed somewhat strictly. Thus, a guaranty of the notes of one, does not extend to notes which he gives jointly with another. A guarantor who pays the debt of the principal may demand from his creditor the securities he holds, although not an assignment of the debt itself, or of the note or bond which declares the debt, for that is paid and discharged. And some- times the creditor will not be permitted to resort to the guar- antor until he has collected as much as he can from these securities. Unless the guaranty is by a sealed instrument, there must be a consideration to support it. If the original debt or obliga- tion rest upon a good consideration, this will support the promise of guaranty, if this promise was made at the same time with or prior to the original debt. But if that debt or obliga- tion be first incurred and completed before the guaranty is given, there must be a new consideration for the promise to guarantee that debt or the guaranty is void. But the consid- eration need not pass from him who receives the guaranty to him who gives it. Any benefit to him for whom the guaranty is given, or any injury to him who receives it, is a sufficient consideration if the guaranty be given because of it. 152 GUARANTY. A guaranty is not binding unless it is accepted, and unless the guarantor has knowledge of this. But the law presumes this acceptance in general, when the giving of the guaranty and any action on the faith of it, by the party to whom it is given, are simultaneous. In New York, wherever the giiaranty is absolute, notice of its acceptance is unnecessary, unless expressly or impliedly required by the offer of guaranty. But, generally, an offer to guarantee a future operation, especially if by letter, does not bind the offerer unless he has such notice of the acceptance of his offer as would give him a reasonable opportu- nity of making himself safe. If the liability of the principal be materially varied by the act of the party guaranteed, without the consent of the guar- antor, the guarantor is discharged. Many interesting cases have arisen which involve this question. Thus, where a bond was given conditioned for the faithful performance of the duties of the office of deputy collector of direct taxes for eight certain townships, and the instrument of appointment, referred to in the bond, was afterwards altered so as to extend to another township without the consent of the surety, the Supreme Court of the United States held that the surety was discharged from his responsibility for moneys collected by his principal after the alteration. Again, in an English case, the facts were, that, in a bond by sureties for the careful attention to business and the faithful discharge of the duties of an agent of a bank, it was provided "that he should have no other business of any kind, nor be connected in any shape with any trade, manufacture, or mercantile copartnery, nor be agent for any individual or copart- nery in any manner or way whatsoever, nor be security for any individual or copartnery in any manner or way whatsoever." Th£ bank subsequently, without the knowledge of the sureties, increased the salary of the agent, he undertaking to bear one- fourth part of all losses which might be incurred by his dis- counts. It was held that this was such an alteration of the contract, and of the liability of the agent, that the sureties were discharged, notwithstanding that the loss arose, not from dis- counts, but from improper conduct of the agent. The guarantor is also discharged if the liability or obligation- GUARANTY. 1 5, be renewed or extended by law. As if a bank, incorporated for twenty years, be renewed for ten more, and the officers and business of the bank go on without change ; the original sure- ties of the cashier are not held beyond the first term. So a guaranty to a partnership is extinguished by a change among the members, although neither the name nor the business of the firm be changed. But a guaranty, by express terms, may be made to continue over most changes of this kind. A specific guaranty, for one transaction which is not yet exhausted, is not revocable. If it be a continuing or a general guaranty, it is revocable, unless an express agreement, founded on a consideration, makes it otherwise. A creditor may give his debtor some accommodation or indulgence without thereby discharging his guarantor. It would seem just, however, that he should not be permitted to give him any indulgence which would materially prejudice the guarantor. Generally, a guarantor may always pay a debt, and so acquire at once the right of proceeding against the party whose debt he has paid. On this ground, it has been held, that where a surety requested the creditor to proceed against the principal debtor, and the creditor refused to do this, and afterwards the debtor became insolvent and the surety was without indemnity, still the surety (or guarantor) was not discharged, because he might have paid the debt, and then sued the party whose debt he paid. In New York, it seems to be the law, that, if the surety requests the creditor to proceed against the principal debtor and he refuses, and the principal debtor afterwards becomes insolvent, the surety will be discharged. If, by gross negli- gence, the creditor has lost his debt, and has deprived the surety of security or indemnity, the surety must be discharged unless he was equally negligent. If a creditor gives time to his debtor by a binding agreement which will prevent a suit in the mean- time, this undoubtedly discharges the guarantor (unless the surety consents to the delay) because it deprives him of his power of acquiring a right of proceeding against the debtor, by paying the debt ; for the debtor cannot during that time be sued. If there be a failure on the part of the principal, and the 154 GUARANTY. guarantor is looked to, he should have reasonable notice of this. And, generally, any notice would be reasonable which would be sufficient in fact to prevent his suffering from the delay. And if there be no notice, and the guarantor has been unharmed thereby, he is not discharged. If a guaranty purport to be official, that is, if it be made by one who claims to hold a certain office, and to give the promise of guaranty only as such officer, and not personally, the general rule is, that he is not liable personally, provided he actually held that office and had a right to give the guaranty officially. But he would still be held personally, if the promise made, or the relations of the parties indicated that credit was given person- ally to the parties promising, and not merely to them in their official capacity ; or if he had no right to give the promise in his official capacity. A guaranty was given for the price of a cargo of iron, and the buyer bargained with the seller to pay him more than the fair price, the excess to go towards an old debt. The guaranty was held to be altogether void, because fraudulent ; and could not be enforced even for the fair price. FORMS OF GUARANTY. (39.) Guaranty to be Indorsed on a Note. For value received I guarantee the payment of the wilhin-written note. (Date) {Signature^! (40.) Guaranty of a Note on Separate Paper. For value received I guarantee the due payment of a promissory note dated whereby promises to pay to , doUars, in months. {Date.) (Signature) (41.) Guaranty in Another "Way. For value received I guarantee that the within (note or hill, or that such a note or bill, describing it) will be collected and paid if demanded in due course of law. (Date.) (Signature.) FORMS OF GUARANTY. 1 55 (42.) Letter of Guaranty. Sir, — If you will sell to Mr. of the goods he wishes to buy {or the goods may be described) to the amount of (this may be omitted if the guaranty is intended to be of any amount), within year {pr days or months, or the time may be omitted if it is not intended to limit ?V)from the date hereof, I, for value received, hereby promise and guarantee that the price thereof shall be duly paid. {This letter should also state on what terms the goods should be sold, as to credit, delivery, etc., nnless it is intended to leave all this to the buyer and seller. {Date.) {Signature) When goods or stocks or other securities are given as col- lateral security for borrowed money or any other debt, an instrument is sometimes given, the intention of which is to guarantee that the collaterals should be and remain sufficient to secure the indebtedness. It may be in one of the following forms, as the bargain requires. These are sometimes called "margin guaranties." (43.) Guaranty with Collaterals authorizing Sale. Whereas, I {or we) have deposited with as collateral security for payment at maturity of the following {here describe the debt guaranteed) Now this Witnesseth, That in the event of the non-payment at maturity of any or all of these hereby authorize or assigns, to sell the above {the collaterals) at public or private sale, or at the brokers' board, without notice to and apply proceeds to payment of said and all necessary expenses, holding responsible for any deficiency. In Witness Whereof, have hereunto set hand and seal , this day of one thousand eight hundred and {Signattire^ (Witness^ (44.) Guaranty with Collaterals, promising Additional security or authorizing Sale. Having Borrowed this Day of {the sum borrowed) on the following collaterals (Jiere describe the collaterals) I Hereby Agree, in case the market-price of the said stock should fall at any time during the continuance of the loan to an amount insufficient to 156 THE STATUTE OF FRAUDS. cover the sum loaned, with per cent, margin added thereto, that in such event I will, on demand, deposit additional security to be approved by him, which shall be sufficient to keep the collaterals thus deposited equal to a sum per cent, above said loan, and so as often as said collaterals shall diminish ; and that, in default thereof, the said shall have power to sell at public or private sale, without notice, all, or any of the said securities (as well as any others he may hold), to pay the amount of the said loan, with all interest and charges thereon, and for so doing, I fully release him of all claims, actions, and causes thereof. CHAPTER XIII. THE STATUTE OF FKAUDS. SECTION I. I ITS PURPOSE AND GENERAL PROVISIONS. The Statute of Frauds, so called, was passed in the 29th year of Charles II. (1677) for the purpose of preventing frauds and perjuries, by requiring in many cases written evidence of a contract. In nearly all our States a similar statute has been enacted. But no two of the statutes of the different States agree exactly in all their provisions. They do, however, agree substantially; and we shall give in this chapter the prevailing and nearly universal rules for the construction and application of this statute. It is often of very great importance in com- mercial transactions. Those provisions which especially relate to business law are contained in the fourth and seventeenth sections. By the fourth section, it is enacted that "no action shall be brought whereby to charge any executor or administrator, upon any special promise, to answer damages out of his own estate ; or whereby to charge the defendant, upon any special promise, to answer for the debt, default, or miscarriages of another per- son ; or to charge any person upon any agreement made upon consideration of marriage; or any contract for sale of lands, tenements, or hereditaments, or any interest in or concerning them; or upon any agreement that is not to be performed A PROMISE TO PA V THE DEBT OF ANOTHER. 157 within the space of one year from the making thereof : unless the agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other per- son thereunto by him lawfully authorized." By the seventeenth section, it is enacted that " no contract for the sale of any goods, wares, and merchandises, for the price of ;^io sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memo- randum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." The second and fifth clauses of the fourth section, and the whole of the seventeenth, relate to our present subject. The second clause prevents an oral guaranty from being enforced at law ; but if money be paid on one, it cannot be recovered back. SECTION II. A PROMISE TO PAY THE DEBT OF ANOTHER. It is very often difficult tb say whether the promise of one to pay for goods delivered to another is an original promise, as to pay for one's own goods, and then it need not be in writing, or a promise to pay the debt or guaranty the promise of him to whom the goods are delivered, and then it must be in writing. If it be a promise to pay the debt of another, it is said to be a collateral promise, and not an original promise. The question may always be said to be : To whom did the seller give, and was authorised to give, credit? This question the jury will decide, upon consideration of all the facts, under the direction of the court. If a seller sues one to whom he did not deliver the goods, on the ground that this other promised to pay for them, then the question is, Did this other promise to pay for them as for his own goods .'' for then the promise need not be in writing. Or did he promise to pay for them as for the goods of the party receiving them .' and then it is a .promise to pay the debt of 1 5 8 THE ST A TUTE OF FRA UDS. another, and must be in writing. If, on examination of the books of the seller, it appears that he charged the goods to the party who received them, it will be difficult, if not impossible, for the seller to maintain that he sold them to the other party. But if he charged them to this other, such an entry would be good evidence, and, if confirmed by circumstances, strong evidence that this party was the purchaser. But it cannot be conclusive ; for the party not receiving the goods may always prove, if he can, that he was not the buyer, and that he promised only as surety for the party who was the buyer; and, consequently, that his promise cannot be enforced if not in writing. And, in general, in determining this question, the court will always look to the actual character of the transaction, and the intention of the parties. The courts, both in England and in America, have often endeavored to illustrate this question. Thus, in an early Eng- lish case, the court said : "If two come to a shop, and one buys, and the other, to gain him credit, promises the seller, 'If he does not pay you, I will,' this is a collateral undertaking, and void, without writing, by the Statute of Frauds. But if he says, 'Let him have the goods, I will be your paymaster,' this is an undertaking as for himself, and he shall be intended to be the very buyer, and the other to a'ct but as his servant." So, in a case in Maryland, the court said : " If B gives credit to C for goods sold and delivered to him, on the promise of A to 'see him paid,' or 'to pay him for them if C should not,' m that case it is the immediate debt of C, for which an action will lie against him, and the promise of A is a collateral undertaking to pay that debt [and must be in writing], he being only liable as a surety. But where the party undertaken for is under no liability himself, the promise is an original undertaking of the party promising, and binding upon him without being in writing. Thus, if B furnishes goods to C, on the express promise of A to pay for them, and if A says to him, ' Let C have goods to such an amount, and I will pay you,' and the credit is given to A, in that case C being under no liability, there is nothing to which the promise of A can be collateral ; but A bemg the immediate debtor, it is his original undertaking, and not a promise to AGREEMENT NOT TO BE PERFORMED IN A YEAR, ijg answer for the debt of another ; " and therefore need not be in writing. Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some purpose of his own, his promise is not within the statute, although it may be in form a promise to pay tlie debt of another, and although the performance of it may incidentally have the effect of extinguish- ing the liability of another. If an old debt is extinguished by a new promise, this promise is considered as an original one, and not within the requirement of the statute. If there be an oral promise to pay the debt of another, and also to do some other thing, this last can be enforced at law, if this other thing, and so much of the promise as relates to it, can be severed from the debt of the other and the promise relating to that debt ; for although that promise must be in writing, the other may be oral. SECTION III. AN AGREEMENT NOT TO BE PERFORMED WITHIN A \'EAR. Under the fifth clause in the fourth section, it is held that an agreement which, may be performed within the year is not affected by the statute, as the words, " that is not to be performed within one year," do not apply to an agreement which, when made, was, and by the parties was understood to be, fairly capable of complete execution within a year, without the inter- vention of extraordinary circumstances, — although in point of fact its execution was extended much beyond the year. So where one agreed orally, for one guinea, to give another a num- ber of guineas on the day of his marriage, it was held that this promise was not within the statute, that is, not one which the statute required to be in writing, because he might be married within a year, and the promisor was therefore bound by it. So where one agreed orally never to go into the staging business in a certain place, as this contract could last only while the promisor lived, and he might die within a year, he was held to be bound by it. l60 THE STATUTE OF FRAUDS. SECTION IV. THE FORM AND SUBJECT MATTER OF THE AGREEMENT. The '•agreement" must be in writing; but generally, in this country, the writing need not contain or express the considera- tion, which may be proved otherwise. Nor need it be all on one piece of paper. For it is sufficient if on several pieces, as in several letters, which, however, relate to one and the same business, and may fairly be read together as the statement of one transaction. But it must appear from the papers that they are so connected. The "signature" may be in any part of the paper, — the beginning, middle, or end, except in those of our States in which the statute has the word "subscribed" instead of "signed;" ill which case it should be in the usual place at the bottom. If the name and the agreement be printed, it is sufficient ; hence, a printed shop-bill, with the name of the seller, as usual, at the beginning, if delivered to the buyer, is generally sufficient to charge the seller in an action for refusing to deliver the goods. Shares in railroad companies, in manufacturing companies, and, generally, in all corporations and joint-stock companies, are " goods, wares, or merchandises," within the meaning of the stat- ute, in this country, and an agreement for their purchase and sale rnust therefore be in writing. It may be further remarked, that the operation of the statute has been always limited to such contracts as have not been executed in any substantial part, and therefore remain wholly executory. For if they had been executed substantially in good part, they are binding, although only oral. In Massachusetts, the Statute of Frauds also provides (3d section) that no action shall be brought to charge any person upon, or by reason of, any representation or assurance made concerning the character, conduct, credit, ability, trade, or deal- ings of any other person, unless it be made in writing, and signed by the party to be charged. And there are provisions substantially similar to this in the statutes of Maine and Ver- mont. HOW PA YMENT MA Y BE MADE: i6r Instead of the " £,\o" in the seventeenth section of the English Statute, the sum mentioned in the Statutes of Frauds of the different States, is, generally, from thirty to fifty dollars. CHAPTER XIV. PAYMENT AND TENDER. SECTION I. HOW PAYMENT MAY BE MADE. The obligations which arise out of most mercantile contracts are to be satisfied by payment of money. The parties may always agree to any specific manner of payment, and then that becomes obligatory on the creditor as well as the debtor. As, by deducting the amount to be paid from a debt due to the debtor either from the creditor or from any one else. Or the amount may be made, by agreement, payable by a bill or note. If the debt is to be paid by a bill, it must be such a bill as is agreed upon, and this must be tendered by the debtor. But the word "bill" does not necessarily mean an "approved bill ; " and if this phrase be itself used, it means only a bill to which there is no reasonable objection; that is, one which ought to be approved. In the absence of any especial agreement, the only payment known to the law is by cash, which the debtor must pay when it is due, or tender to the creditor. The tender should, properly, be in cash, or in bills made a legal tender by law, and must be so if that is required ; but a tender in good and current bank-bills is sufficient, unless it be objected to because they are not money. Generally, if the tender be refused for any express and specific reason, the creditor cannot afterwards take advantage of any informality, to which he did not object at the time of the tender. The tender may be of a larger sum than is due. But a tender 11 1 62 PAYMENT AND TENDER. of a larger sum, if made with a requirement of change or of the balance, is not good. Nor must it be accompanied with a demand or condition that any instrument or document shall be delivered ; nor that the sum tendered shall be received as all that is due ; nor that a receipt in full shall be given. But a simple receipt for so much money paid may be demanded. We have already seen that, if a receipt be given, it is only strong evidence of payment, but not conclusive. And even if it be "in full of all demands," it is still open to explanation or denial by evidence. A lawful tender, and payment of the money into court, is a good defense to an action for the debt. But the creditor may break down this defense by proving that, subsequently to the tender, he demanded the money of the debtor, and the debtor refused to give it. If the buyer or debtor give, and the seller or creditor receive, a negotiable note or bill for the sum due, this is not anywhere absolute and conclusive payment. In Maine and in Massachu- setts the law presumes that such note or bill is payment of the debt, unless a contrary intention is shown. In nearly all the States of this Union but those two, and in the Supreme Court' of the United States, it is not payment, unless the intention of the parties that it should be so is shown. In New York, it has been held that the debtor's own promissory note is not payment, even if it be intended or expressly agreed that it should be. If a creditor, who receives from his debtor any bill or note, nego- tiates or sells it for value to a third party, without making himself liable, the bill or note was payment, although it be dis- honored, because it has been good to the debtor, and he has received the avails of it ; and if the law did not hold that the bill had paid the debt, he could sue the original debt, and then he would have the value of the bill, or payment, twice. Not so, however, if he negotiates it in such a way that he is himself liable upon it ; for if he pays it, he loses what he sold it for, unless he can recover his debt from his debtor. APPRQPRrATION OF PA YMENT. SECTION II. 163 APPROPRIATION OF PAYiyiENT. If one who owes several debts to his creditor makes to him a general payment, it may be an important question to which of those debts this payment shall be appropriated ; for some of them may be secured, and others not, or some of them may carry interest, and others not, or some of them be barred b^ the Statute of Limitations, and others not. There is no doubt that the payor may appropriate his pay- ment, at the time of the payment, at his own pleasure. And if he does not exercise this right, the receiver may, at the time of payment, make the appropriation. But if neither party does this at that time, and at a future period the question comes up as to which party may then make the appropriation, or rather, how the law will then appropriate the payment, it is then the better and prevailing rule, that, if the court can ascertain, either from the words used, or from the circumstances of the case, or from any usage, what was the intention and under- standing of the parties at the time of the payment, that inten- tion will be carried into effect. And if this cannot be ascertained, then the court will direct such appropriation of the payment as will best protect the rights and interests of both parties, and do justice between them. And one reason for this conclusion would be, that the law would presume that this was the original intention of the parties. A very general rule, which would indeed be always adopted in the absence of especial reason to the contrary, is, to apply the payment first to the oldest debt, until that is satisfied, and then go on applying the payment to the other debts in the order of their age. If A owes a debt to B, on B's own account, and another debt to B as trustee for somebody, and A pays B asum of money without appropriating it, B cannot apply it all to the debt, due him on his own account ; but must divide it between that debt and the debt due to him as trustee, in proportion to their respective amounts. Because it is his duty as trustee to take as good care of the debts due to him for another, as of those due to him on his own account. l64 RECEIPTS AND RELEASES. We have spoken of a " bill or note ; " and notes are some- times called bills ; so bank-notes are often called bank-bills. But the legal meaning of " bill " is always a draft or order on somebody to pay money. A note is a promise to pay. See chapter on notes and bills. CHAPTER XV. RECEIPTS AND RELEASES. A RECEIPT is only an acknowledgment that a sum of money has been paid. It may be in one word, as when, under a bill of parcels, the seller writes the word "paid," and signs it. More commonly the words are, " Received Payment." Formerly it was usual to add the words " Errors Excepted." Then it grew customary to write the initial letters "E. E." instead of the words ; but all this is unnecessary. If there be an error in the receipt, or in the paper receipted, the law permits the party injured by it to explain and correct the error, although there be no express reservation or exception of errors. Receipts are of all degrees of fulness, from the single word "paid," to those which relate the particulars for which the receipt is given, and the manner in which the money was paid, or the thing delivered. I give the following forms : (46.) (Date) This day I have received from dollars. (46.) {Date) This day I have received from . . dollars, on account of {Signature.) (47.) {Signature.) {Date) This day the following {papers, or other articles, enumerating and describing them) were delivered to me by , {add, on account of, or in execution of the promise or bargain, describing its and, if they are delivered for any particular purpose, describe that), and I hereby acknowl- edge the receipt of them. {Signature^ FORMS OF RELEASES. 165 Every receipt is open to evidence, not only to explain it, but to contradict it. Herein releases differ from receipts. A release gives up some right or claim which the releasor had against the releasee. It is in the nature of a contract, and therefore cannot be controlled or contradicted by evidence, unless on the ground of fraud. But if its words are ambiguous, or may have either of two or more meanings, evidence is receivable to determine the meaning. Like every other contract, it requires a consideration, and is of no force without one. But here comes in the rule of law as to a seal. The general rule is, as has been stated before, a seal implies, or is the same as, the assertion of a consideration ; and therefore it is always customary to put a seal to a release. But a release, even with a seal, if it can be shown to have been given without any consideration whatever, can be set aside. It is always best to state in the release itself that it was given for a consideration, and what the consideration is. A release properly drawn, and duly signed and sealed, is a complete defeijce to an action grounded on any of the debts or claims released. The following forms are for releases of various kinds : (48.) A General Release. Know all Men by these Presents, That I, {the name of the releaser) of for and in consideration of the sum of , to me paid by of , have remised, released, and forever discharged, and by these presents do, for me, my heirs, executors, and administrators, remise, release, and forever discharge the said his heirs, executors, and administrators, of and from all and all manner of action and actions, cause and causes of action, suits, debts, dues, sum and sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, damages, judgments, extents, executions, claims, and demands whatsoever, in law and in equity, which against the said I ever had, now have, or which I, my executors or administrators hereafter can, shall, or may have, for, upon, or by reason of, any matter, cause, or thing whatsoever, from the beginning of the world to the day of the date of these presents. In Witness "Whereof, &c. l66 RECEIPTS AND RELEASES. (49.) A Mutual G-eneral Release by Indenture. This Indenture, Made between of and of , witnesseth, that the said doth, by these presents remise, release, and forever quit claim, untp the said , all and all manner of actions, {as before ); and this indenture further witnesseth, that the said by these presents, doth remise, release, and forever quit claim, unto the said all and all manner of actions (as before). In "Witness Whereof, &c. (50.) A Release from Creditors to a Debtor, under a Composition. To all Persons to whoni these Presents may come, we who have here- unto set our hands and seals, creditors of of , send greeting. Whereas the said is indebted to us his said creditors, in several sums of money^ which he is not able fully to satisfy and discharge ; we therefore have agreed, and do hereby agree, to accept of the sum of in full payment and satisfaction of all the debts, owing to us respectively at the date hereof, by and from the said which is paid by or for the said {the name of the debtor) to {the names of the ■persons to ■who?n the money is to be paid for the creditors releasing)* and assignees by virtju of a commission, of bankrupt awarded against the said , for the use of, and to the intent that the same may be shared and divided amongst us his said creditors, seeking relief under the said commission, in proportion and according to the debts to us severally due and owing : Now therefore know ye, that for the consideration aforesaid, each of us, the said creditors who have hereunto set our hands and seals, for him and herself, his and her heirs, executors, and copartners, doth by these presents, remise, release, and forever discharge the said his heirs, executors, and administrators, of and from our said several debts, and all and all manner of action and actions which against the said , each and every of us the said creditors now hath, or which each and every of our heirs, executors, or administrators, respectively, hereafter may, can, or ought to have, claim, or demand for, upon, or by reason of the said several and respective debts to us severally due and owing, or for or by reason of any other matter, cause, or thing whatsoever from the beginning of the world. In "Witness Whereof, &c. (61.) A Release of all Legacies. Know all Men by these Presents, That I of widow, have remised, released, and forever quit-claimed, * The YiOTis following in Italic may be omitted according to circumstances. FORMS OF RELEASES. 1 67 and by these presents do for me unto of , gentleman, executor of the last will and testament of late of , deceased, and to the heirs, executors, and administrators of the said , all legacies, gifts, bequests, sum and sums of money and demands whatsoever, bequeathed and given unto me the said , in. and by the last will and testament of , deceased, and all manner of actions and suits, sum and sums of money, debts, duties, reckonings, accounts, and demands whatsoever, which I the said ever had, now have, or that I, my executors or administrators, can or may, at any time or times hereafter, have, challenge, or demand against the said his executors, administrators, or assigns, for or by reason of any mat- ter, cause, or thing whatsoever, from the beginning of the world until the day of the date hereof. In Witness Whereof, etc. (62.) A Release of a Bond, it being Lost. To all to whom these Presents may come, {name of releaser) sendeth greeting. Whereas by his bond or obligation, bearing date {recite the bond), as by the said bond or obligation, and the condition thereof may appear : And whereas the sum of mentioned in the said bond, with all the interest for the same, is paid and satisfied unto me the said , in full discharge for the said bond or obligation : And whereas the said bond or obligation is lost, or at present mislaid, so that it cannot be found to be delivered up to the said , to be cancelled : Now know ye, that I the said for the consideration aforesaid, have remised, released, and quitclaimed, and by these presents do, for me, my executors and administrators, remise unto the said his heirs, executors, and administrators, as well the said recited bond or obligation, as all such sums of money as therein are mentioned to be due and payable, unto me the said my executors, administrators, or assigns ; and also all actions, suits, cause and causes of action, accounts, debts, reck- onings, sums of money, judgments, executions, and demands whatsoever, which I, the said ever had, now have, or that I, my executors, administrators, or assigns, or any of us, can or may have, for or against the said his executors or administrators, for, or by reason of, the said recited bond or obligation, or any other matter, cause, or thing whatsoever, concerning the same, from the beginning of the world to the day of the date hereof. In Witness Whereof, I the said have hereunto set my band and seal this day of {Signatures.) {Seals.) In Presence of l68 RECEIPTS AND RELEASES. ( The foUmiiing covenant may be inserted before " In ■witness!') And I, the said for me ray executors , do covenant , to and with the said , his that if I the said , my executors, , or any of us, at any time hereafter, do find or can obtain the said recited bond or obligation, then I, the said , my executors , or some of us, shall and will, within two months next after the said obligation shall be found as aforesaid, deliver, or cause to be delivered, the said bond or obligation, unto the said his (53.) A Release of a Judgment. This Indenture, Made the day of in the year one thousand eight hundred and between of the second part. Whereas, Judgment was rendered on the day of in the year one thousand eight hundred and in an action in the between plaintiff and defendant in favor of the said against the said for the sum of as appears by the Now this Indenture Witnesseth, That the said part of the first part, in consideration of the sum of to duly paid at the time of the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, ha granted, released, discharged and set over, and by these presents do grant, release, discharge and set over, unto the said part of the second part, the following described premises, to wit : Together with the hereditaments and appurtenances thereto belonging ; and all the right, title and interest of the said part of the first part, of, in and to the same to the intent that the lands hereby conveyed may be released and discharged from the said above-mentioned judgment, and from all lien or incumbrance that has attached to the same, by reason of the recovery of the said judgment, as free and clear in all respects as though said judg- ment had not been rendered. To have and to hold, the lands and premises hereby released and conveyed, to the said part of the second part heirs and assigns, to their only proper use, benefit and behoof forever, free, clear and discharged of and from all lien and claim, under and by virtue of the judgment aforesaid. In "Witness "Whereof, The said part of the first part ha hereunto set hand and seal the day and year first above written. {Signatures.) {Seals.) In Presence of FORMS OF RELEASES. 169 (54.) A Release of a Condition. Know all Men by these Presents, That I, of , for divers good considerations me liereunto moving, have remised, released, and quit-claimed, and by these presents, for me, my executors, administrators, and assigns, do unto of , his lieirs, executors, administrators, and assigns, as well one proviso or condition, and all and every the sum and sums of money, specified in the same proviso or condition, contained or comprised in one pair of indentures of bearing date , made between me, the said of the one part, and the said of the other part, and also all and all manner of actions and suits, cause and causes of actions and suits, for or concerning the said proviso or condition. In Witness Whereof, I the said have hereunto set my hand and seal this day of {Signature.) (Seal.) In Presence of (56.) A Release of a Covenant contained in an Indenture of Lease. To all Persons to whom these Presents may come, {name of releaser) sendeth greeting. Whereas in and by an indenture of lease, bearing date made between , of the one part, and the said of the other part, there is contained a covenant in these words following, viz. {recite the covenant verbatim, as therein contained) whereunto relation being had, it doth at large appear : Now know ye, that I, the said , for divers good causes and considerations, me hereunto moving, have remised, released, and quit-claimed, and by these presents for me do unto the said , his the said covenant, grant, clause, agreement, and article, before rehearsed or recited, and all and every other matter, thing and things specified, declared, and contained in the same covenant, clause, and agreement, and all the benefit, profit, advan- tage, and commodity, that by any manner of means, may or might arise, grow, come, or happen to me the said , for or by reason of the same covenant, clause, article, or agreement, or any word, sentence, matter, thing, or things therein contained, so that the said his executors and assigns, and every of them, from henceforth forever, shall be fully acquitted, released, and discharged against me the said my executors and administrators, and every of us, of, from, and for the said covenant, grant, clause, article, and agreement before rehearsed or recited, and of, from, and for, everything and things, touching the same (but this present release shall not in anywise extend to any othef covenant, clause, or article in the said indenture contained). 170 RECEIPTS AND RELEASES. In Witness "Whereof, I the said have hereunto set my hand and seal this day of (^Signature.) (Seal.) In Presence of (56.) A Release in Extinguishment of a Po-wer. To all Persons to whom, these Presents may come, Now know ye, that I, the said , pursuant to the said agreement, and for divers good causes and considerations me hereunto moving, have released, extinguished, and discharged, and by these presents do fully and absolutely release, extinguish, and discharge, the said recited powerfor raising the said sum of as aforesaid, and all the lands therein comprised, or subject thereto, so that I, the said shall not, nor will, at any time or times hereafter, raise the same, or any part thereof, or hereafter charge the said lands with the payment thereof, or any part thereof. In Witness Whereof, I the said have hereunto set my hand and seal, this day of (Signature^ (Seal.) In Presence of (57.) A Release from a Lessor to a Lessee (upon his stirrendering his Lease) from the Covenants therein. To all Persons to whom these Presents may come, (iiame of releaser) sends greeting : Whereas the said by his indenture of lease, bearing date , did demise unto a messuage in at a certain rent, for a cer- tain term of years, of which about years are yet to come and undetermined, in which said lease are contained covenants for repairing the said premises, and other covenants, on the part of the said to be performed. And whereas, by agreement between the said and the said hath delivered up the said recited lease,, and surrendered the same, and all his interest and term in and to the said house and premises : Now therefore know ye, that the said , , in consideration thereof, doth hereby, for himself, his heirs, executors, and administrators, remise, release, and forever discharge the said his executors and admin- istrators, of and from all and every the covenants and agreements, in the said recited lease contained, by and on the part and behalf of the said his to be done and performed, 'and from all actions, suits, costs, charges, payments, damages, claims, and demands whatsoever, in law and equity, for or concerning the same in any manner of wise. In Witness Whereof, I the said have hereunto set my hand and seal this day of (Signature) (Seal^ In Presence of FORMS OF RELEASES. 171 (58.) A General Release of Dower. To all to whom these Presents shall come, {name of releaser) send greeting : Know ye, that the said the party of the first part to these presents, for and in consideration of the sum of lawful money of the United States, to her in hand paid at or before- the ensealing and delivery of these presents, by of the second part, the receipt whereof is hereby acknowledged, hath granted, reriiised, released, and forever quit-claimed, and by these presents doth grant, remise, release, and forever quit-claim, unto the said party of the second part, heirs and assigns forever, all the dower and thirds, right and title of dower and thirds, and all other right, title, interest, property; claim and demand whatsoever, in law and equity, of her, the said party of the first part, of, in, and to {here describe the estate the dower in which is released) so that she, the said party of the first part, her heirs, executors, administrators or assigns, nor any other person or persons, for her, them, or any of them, shall not have; clafm, challenge, or demand, or pretend to have, claim, challenge, or demand, any. dower or thirds, or any other right, title, claim, or demand whatsoever, of, in, or to the same, or any part or parcel thereof, in whosesoever hands, seisin, or possession, the same may or can be, and thereof and therefrom shall be utterly barred and excluded forever by these presents. In Witness Whereof, The said party of the first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and {Signature) {Seal.) In Presence of (59.) A Release of Dower to the Heir. Know all Men hy these Presents, That I relict o£ late , as well for and in consideration of to me paid, at or before , by my son , the receipt whereof I do hereby acknowledge, and for the love and affection which I have to my said son, have granted, remised, released, and forever quit-claimed, and by these presents do unto the said his heirs and assigns forever, all the dower and thirds, right and title of dower and thirds, and all other right, title, inter- est, property claim, and demand whatsoever, in law and in equity, of me the said of, in, and to {a description of the parcel of land in which dower is released) so that neither I, the said my heirs, executors, or administrators, nor any other person or persons for me, them, or any of them, shall have, claim, challenge, or demand, or pretend to have any dower or thirds, or any other right to claim or demand of, in, or to the said premises, but thereof and therefrom, shall be utterly debarred and excluded, forever, by these presents. i;2 RECEIPTS AND RELEASES. In Witness Whereof, The said party of the first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and (Signature) {Seal.) In Presence of (60.) A Release of Dower in Consideration of an Annuity given by Will. To all Persons to whom these Presents may come, {name of releaser) widow, reh'ct and residuary legatee of late of , deceased, sendeth greeting. Whereas the said , in and by his last will and testament, duly signed, sealed, published, and declared in my pres- ence and with my approbation, bearing date , did settle and secure unto and upon me the said , an annuity of to be paid unto me half-yearly, by equal payments, in lieu and full satisfaction of the dower or thirds at common law, which I might otherwise have, claim, or be entitled unto, out of all and every the lands, tenements, and hereditaments whatsoever, of my said late husband, deceased, or of, in, to, or out of the reversion or remainder, rents, issues, and profits thereof : Now know ye, that I the said for and in consideration of the said annuity so secured to me as aforesaid, and in pursuance and part performance of the said last will and testament of my said late husband, do hereby declare myself fully satisfied and con- tented therewith, and do hereby remise, release, and forever quit-claim unto of , and of , trustees, appointed in and by the said last will and testament of my said late husband (in their actual possession and seisin now being) their executors all and all manner of dower in and to the said premises, but thereof and therefrom, shall be utterly debarred and excluded, forever, by these presents. In Witness Whereof, The said party of the first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and {Signature.) {Seal.) In Presence of (61.) A Release of Dower where the Husband of the "Widow joins in the Deed. MSS. Know all Men by these Presents, That {name of husband) of and {name of wife) his wife, in her right, in consideration of paid them by of the receipt whereof they hereby acknowledge, have granted, remised, released, and forever quit-claimed, and by these presents do unto the said his heirs and assigns forever, all the right which the said hath to dower or thirds, of and in {here FORMS OF RELEASES. 173 describe the estate)-^\\txtoi her late husband (name of former husband) late ' died seized, situate, , which she claims as of the endowment of the said deceased, and all the right, title, interest, and claim whatsoever, which the said and have, or either of them hath, or by law might have, of, in, and to the same : To have and to hold the same to the said and his heirs and assigns forever ; and the said and for themselves, their heirs, executors, and administrators, do hereby covenant with the said and his heirs and assigns, that he and they shall henceforth forever, have and quietly enjoy the released premises, without any claim or demand had or made, or to be had or made by them, or any persons, claiming, or who may claim the same or any part thereof, by, from, or under them or their heirs. In "Witness Whereof, The said party of the first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and {Signature^ (Seal.) In Presence of (63.) A Release of a Trust. To all to ■whom these Presents may com.e, (name of releaser) sendeth greeting. Whereas, by indenture bearing date , made between (here recite the deed) in which said indenture the said doth hereby declare, that his name was only used in trust, for the benefit and behoof of of : Now know ye, that I, the said , in discharge of the trust reposed in me, at the request of the said , have remised, released, and surrendered, assigned, and set over, and by these presents, for me, my executors and administrators, do freely and absolutely remise, unto the said his executors all the estate, right, title, interest, use, benefit, privilege, and demand what- soever, which I the said have, or may have or claim, of, or to the said premises, or of and in any sum of money, or other matter or thing whatsoever, in the said indenture contained, mentioned, and expressed, so that neither I the said my executors or administrators, or any of us, at any time hereafter, shall or will ask, claim, challenge, or demand any interest or other thing, in any manner whatsoever, by reason or means of the said indenture, or any covenant therein contained, but thereof and therefrom, and from all actions, suits, and demands, which I, my executors, administrators, or assigns, may have concerning the same, shall be utterly excluded and forever debarred, by these presents. In "Witness "Whereof, The said party of the first part to these presents hath hereunto set her hand and seal, the day of in the year of our Lord one thousand eight hundred and (Signature:) (Seal.) In Presence of 174 RECEIPTS AND RELEASES. (63.) A Release of Right to Lan an agent acts gratuitously, without an agreement for compensation, or any legal right tO' compensatibn growing out of his services, he will not be held responsible for other than gross negligence. A strictly gratuitous agent will be held re- sponsible for property intrusted to him, if it be lost or injured by his gross negligence. For any breach of duty, an agent is responsible for the whole injury thereby sustained by his principal; and, generally, a verdict against the principal for misconduct of the agent measures the claim of the principal over against the agent.' The loss must be capable of being made certain and definite; and then the agent is responsible, if it could not have happened but for his misconduct, although not immediately caused by it. Thus, where an insurance-broker was directed to effect insurance on goods "from Gibraltar to Dublin," and caused the policy to MUTUAL RIGHTS OF PRINCIPAL AND AGENT. 231 be made, "beginning from the lading of the goods on board," and they were laden on board at Malaga, and went thence to Gibraltar, and sailed for Dublin, and were lost on the voyage, so that the policy did not cover them because they were not laden at Gibraltar, this was held to be gross negligence on his part, and he was held responsible for the value of the goods. If any agent embezzles his employer's property, it is quite clear that the employer may reclaim it whenever and wherever he can distinctly trace and identify it. But if it be blended indistinguishably with the agent's own goods, and the agent die or become insolvent, the principal can claim only as a common creditor, as against other creditors ; but as against the factor or agent himself, the whole belongs in law to the principal ; because the factor or agent had no right thus to mix up the property of another with his own, and if he chooses to do so, he must lose all of his own property that cannot be separated from that which is not his own. An agent employed to sell property cannot buy it himself ; nor, if employed to buy, can he buy of himself ; unless expressly ■ authorized to do so. Nor can a trustee purchase the property he holds in trust for another. But the other party may ratify and confirm such sale or purchase by his agent ; and he will do this by accepting the proceeds and delaying any objection for a long time after the wrongful act is made known to him. And if a trustee or agent to sell property buys it, not in his own name, but through somebody else, the sale is void. Among the obvious duties of all agents is that of keeping an exact account of their doings, and particularly of all pecuniary transactions. After a reasonable time has elapsed, the court will presume that such an account was rendered, accepted, and settled. Otherwise, every agent might always remain liable to be called upon for such account. Moreover, he is liable not only for the balances in his hands, but for interest; or even, where there has been a long delay to his own profit, he might be liable for compound interest, on the same ground on which it has been charged in similar cases against executors, trustees, and guardians. No interest whatever would be charged, if such were the intention of the parties, or the effect of the 232 AGENCY. bargain between them; and this intention may be inferred either from direct or circumstantial evidence, — as the nature of the transaction, or the fact that the principal knew that the money lay useless in the agent's hands, and made no objection or claim. The general rule is, that a principal mdy revoke his agency, and an agent may throw up the agency, at pleasure. But neither would be permitted to exercise this power in an unfair and injurious manner which circumstances do not require or justify, ■ without being responsible to the other party for any damages caused by his wrongful act. Insanity revokes authority, especially if legally ascertained. But if the principal, when sane, gave an authority to his agent, and a third party acts with the agent in the belief of his authority, but after the insanity of the principal has revoked it, the insanity not being known to this third party, this revocation will not be permitted to take effect to the injury of this third party. SECTION IX. FACTORS AND BROKERS. All agents who sell goods for their principals, and guarantee the price, are said in Europe to act under a del credere commis- sion. In this country, this phrase is seldom used, nor is such guaranty usually given, except by commission-merchants. And where such guaranty is given, the factor is so far a surety, that his employers must first have recourse to the principal debtor. Still his promise is not "a promise to pay the debt of another," within the Statute of Frauds. Nor does he guarantee the safe arrival of the money received by him in payment of the goods, and transmitted to his employer, but he must use proper caution in sending it. And if it is agreed that he shall guarantee the remittance, and charge a commission for so doing, he is liable, although he does not charge the commission. If he takes a note from the purchaser, this note is his employer's ; and if he takes depreciated or bad paper, he must make it good. A broker or factor is bound to the care and skill properly belonging to the business which he undertakes, and is responsi- ble for the want of it. FACTORS AND BROKERS. 233 A factor intrusted with goods may pledge them for advances to his principal, or for advances to himself to the extent of his lien for charges and commissions. And his power to pledge them, which grows out of the law-merchant, has been much enlarged by statute in many of our States. The mere wishes or intimations of his employer, if suffi- ciently distinct, have the force of instructions. Thus, in New York, a principal wrote to his factor, stating that he thought there was a short supply of the goods he had consigned, and giving facts on which his opinion was founded, and concluded, " I have thought it best for you to take my pork out of the market for the present, as thirty days will make an important change in the value of the article." This was considered by the court to be a distinct instruction, binding upon the factor; and he was therefore held liable for the loss caused by selling the pork within the thirty days. All instructions the agent or factor must obey; but may still, as we have already stated, depart from their letter, if in good faith, and for the certain benefit of his employer, in an unforeseen exigency. Having possession of the goods, he may insure them; but is not bound to do so, nor even to advise insurance, unless requested, or unless a distinct usage makes this his duty. He has much discretion as to the time, terms, and manner of a sale, but must use this discretion in good faith. For a sale which is precipitated by him without reason and injuriously is void, as unauthorized. If he send goods to his principal without order, or contrary to his duty, the principal may return them, or, acting in good faith and for the benefit of the factor, may sell them as the factor's goods. Although a factor charges no guaranty commission, he is liable to his principal for his own default; so he is if he sells on credit, and, when it expires, takes a note to himself; but if he takes at the time of the sale a negotiable note from a party in fair credit, and the note is afterward dishonored, this is the loss of his employer, unless the factor has guaranteed it. If he sells the goods of many owners to one purchaser, taking a note for the whole to himself, and gets it discounted for his own use or accommodation, he is then liable without any 234 AGENCY. guaranty for the payment of that note. So he is if he gets discounted for his own use a note taken wholly for his princi- pal's goods. But he may discount the note to reimburse himself for advances, without making himself liable. If he sends his own note for the price to his employer, he must pay it. As a factor has possession of the goods, he may use his own name in all his transactions, even in suits at law : but a broker can buy, sell, receipt, &c., only in the name of his employer. So, a factor has a lien on the goods in his hands for his advances, his expenses, and his commissions, and for the balance of his general account. And the factor may sell from time to time enough to cover his advances, unless there be something in his employment or in his instructions from which it may be inferred that he had agreed not to do so. But a broker, having no possession, has no lien. The broker may act for both parties, and often does so. But, from the nature of his employment, a factor should act only for the party employing him. A broker has no authority to receive payment for the goods he sells, unless that authority be given him, expressly or by usage. Nor will payment to a factor discharge a debtor who has received notice from the principal not to make such j^ay- ment. Generally, neither factor nor broker can claim their com- missions until their whole service be performed, and in good faith, and with proper skill, care, and industry ; and their negligence may be given in evidence either to lessen- their compensation or commissions, or to bar them altogether. But if the service begins, and is interrupted wholly without their fault, they may claim a proportionate compensation. If either bargains to give his whole time to his employer, he will not be permitted to derive any compensation for services rendered to other persons. Nor can either have any valid claim against any one for illegal services, or those which violate morality or public policy. A principal cannot revoke an authority given to a factor, after advances made by the factor, without repaying or securing the factor. The distinction between a foreign and a domestic factor is FORMS OF POWER OF ATTORNEY, ETC. 235 quite important, as they have quite different rights, duties, and powers, by the law-merchant generally. A domestic factor is one who is employed and acts in the same country with his principal. A foreign factor is one employed by a principal who lives in a different country ; and a foreign factor is as to third parties — ^for- most purposes and under most circumstances — a principal. Thus, they cannot sue the principal, because they are supposed to contract with the factor alone, and on his credit, although the principal may sue them ; and a foreign factor is personally liable, although he fully disclose his agency, and his principal is known. The following forms of powers of attorney are those most frequently required ; and from them, by suitable alterations, powers of attorney may be framed for any purpose : (71.) Power of Attorney. Know all Men ty these Presents, That I {the name of tka-. principal or party appointing of {residence) have constituted, ordained, and made, and in my stead and place put, and by these presents do constitute, ordain, and make, and in my stead and place put {name of attorney) to be my true, sufficient, and lawful attorney for me and in my name and stead to {here set forth the pttrposes for which the power is given) Giving and hereby granting unto him, the said attorney, full power and authority in and about the premises ; and to use all due means, course, and process in law, for the full, effectual, and complete execution of the busi- ness afore described ; and in my name to make and execute due acquittance and discharge ; and for the premises to appear, and the person of me the constituent to represent before any governor, judges, justices, officers, and ministers of the law whatsoever, in any court or courts of judicature, and there on my behalf, to answer, defend, and reply unto all actions, causes, matters, and things whatsoever relating to the premises. Also to submit any matter in dispute, respecting the premises, to arbitration or otherwise ; with full power to make and substitute, for the purposes aforesaid, one or more attorneys, under him, my said attorney, and the same again at pleasure to revoke. And generally to say, do, act, transact, determine, accomplish, and finish all matters and things whatsoever relating to the premises, as fully, amply and effectually, to all intents and purposes, as I the said constituent, if present, ought or might personally, although the matter should require more special authority than is herein comprised, I 236 AGENCY. the said constituent ratifying, allowing, and holding firm and valid all what- soever my said attorney or his substitutes shall lawfully do, or cause to be done, in and about the premises, by virtue of these presents. In Witness Whereof, I have hereunto set my hand and seal this day of in the year of our Lord eighteen hundred and (Signature.) (Seal.) Signed, Sealed, and Delivered in Presence of us Sometimes a power of attorney is given without any power of substitution. This may be by inadvertence, or because it was not intended that the attorney should substitute anybody in his place. Afterwards, it is desired to give him this power to substitute others. And this may be done by a separate instrument, as follows : (72.) Power of Substitution. Know all Men by thesa Presents, That I by virtue of the power and authority to me given, in and by the letter of attorney of (tJie principal) which is hereunto annexed (or described without being annexed), do make, substitute and appoint {name of sub- stitute) as well for me as the true and lawful attorney and substitute of the said constituent named in the said letter of attorney, to do, execute, and perform all and everything requisite and necessary to be done, as fully, to all intents and purposes, as the said constituent or I myself could f!o if personally present; hereby ratifying and confirming all that the said attorney and substitute hereby made shall do in the premises by virtue hereof and of the said letter of attorney. In Witness Whereof, I have hereunto set my hand and seal the day of in the year of our Lord one thousand eight hundred and (Signature^ (Seal.) Executed and Delivered in the Presence of (73.) Power of Attorney in a Shorter Form. Know all Men by these Presents, That I (name of principal) have made, constituted and appointed, and by these presents do make, con- stitute and appoint (name of attorney) my true and lawful attorney for me and in my name, place, and stead to (here describe the thing to be done) giving and granting unto my said attorney full power ar.d authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes, FORMS OF POWER OF ATTORNEY, ETC. 237 as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney or his substitute shall lawfully do or cause to be done by virtue hereof. In Witness Whereof, I have hereunto set my hand and seal the day of in the year one thousand eight hundred and {Signature.) {Seal.) Executed and Delivered in the Presence of (74.) Full Power of Attorney to demand and recover Debts. Know all Men by these Presents, That I {name of principal) have constituted, ordained and made, and in my stead and place put, and by these presents do constitute, ordain, and make, and in my stead and place put {name of attorney) to be my true, sufficient and lawful attorney for me and in my name and stead, and to my use, to ask, demand, levy, require, recover and receive of and from all and ^very person or persons whomso- ever the same shall or may concern, all and singular sum and sums of money, debts, goods, wares, merchandise, effects and things, whatsoever and wheresoever they shall and may be found due, owing, payable, belong- ing and coming unto me the constituent, by any ways and means whatsoever. Giving and hereljy Grranting unto my said attorney full and whole strength, power and authority in and about the premises ; and to take and use all due means, course and process in the law, for the obtaining and recovering the same ; and of recoveries and receipts thereof, and in my name to make, seal and execute due acquittance and discharge ; and for the premises to appear, and the person of me the constituent to represent before any governor, judges, justices, officers and ministers of the law whatsoever, in any court or courts of judicature, and there, on my behalf, to answer, defend and reply unto all actions, causes, matters and things whatsoever, relating to the premises. Also to submit any matter in dispute to arbitration or otherwise, with full power to make and substitute one or more attorneys and my said attorney, and the same again at pleasure to revoke. And generally to say, do, act, transact, determine, accomplish and finish all matters and things whatsoever, relating to the premises, as fully, amply, and effectually, to all intents and purposes, as I the said constituent if present, ought or might personally, although the matter should require more .special authority than is herein comprised, I the said constituent ratifying, allowing and holding firm and valid, all and whatsoever my said attorney or his substitutes shall lawfully do, or cause to be done, in and about the premises, by virtue of these presents. In Witness Whereof, I have hereunto set my hand and seal, this day of in the year of our Lord one thousand eight hundred and {Signature.) {Seal.) Signed, Sealed, and Delivered in presence of us, 238 AGENCY. (75.) Power of Attorney to sell and deliver Chattels. Know all Men by these Presents, That I, the undersigned, for value received, do hereby irrevocably constitute and appoint to be my true and lawful attorney, for me and in my name and behalf, to sell, transfer, and deliver unto or any other person or persons {here describe the things to be sold) And further, one or more persons under him to substitute with like power. In Witness "Whereof, I have hereunto set my hand and seal this day of l8 {Witnesses.) {Signature.) {Seal.) (76.) Power of Attorney given by Seller to Buyer. Know all Men by these Presents, That I for value received, have bargained, sold, assigned, and transferred, and by these presents do bargain, sell, assign, and transfer, unto {name of the buyer) the following articles, namely, {describe the articles) and I do hereby constitute and appoint the said {the buyer) my true and lawful attorney irrevocable, for me and in my name and stead, but to my use, to sell, assign, transfer, and set over all or any part of the said {the goods) and for that purpose to make and execute all necessary acts of assignment and transfer, and one or more persons to substitute with like full power, hereby ratifying and confirming all that my said attorney or his substitute or substitutes shall lawfully do by virtue hereof. In Witness Whereof, I have hereunto set my hand and seal, the day of one thousand eight hundred and {Signature) {Seal.) Signed, Sealed, and Delivered in Presence of (77.) Power of Attorney to sell Shares of Stock, with Ap- pointment by Attorney of Substitute. Know all Men by these Presents, That, for value received, I {name of the principal) oi do hereby make, constitute, and appoint irrevocably, ■ my true and lawful attorney (with power of substitution), for and in my name and on my behalf, to sell, assign, and transfer unto {name of buyer) share now standing in my name in the capital or joint stock of the And my said attorney is hereby fully empowered to make and pass all neces- sary acts for the said assignment and transfer. Witness my hand and seal, i8 {Signature) {Seal.) Signed, Sealed, and Delivered in the Presence of FORMS OF POWER OF ATTORNEY, ETC. 239 For value received, I appoint, irrevocably, {na7ne of the substitute) as my substitute, witli all the powers above given to me. Witness my hand and seal, 18 (Signature^ (Seal) Signed, Sealed, and Delivered in the Presence of (78.) Power of Attorney to Subscribe for Stock. Know all Men by these Presents, That l,the undersi<>;ned, do hereby irrevocably constitute and appoint to be my true and lawful attorney, for me and in my name and behalf to subscribe for shares in the capital stock of the And further, one or more persons under him to substitute with like power. In Witness Whereof, I have hereunto set my hand and seal, this day of 18 Witnesses present, {Seal.) (79.) Proxy, or Power of Attorney to Vote. Know all Men by these Presents, That I (name of the principal) of do hereby appoint to be my substitute and proxy for me, and in my name and behalf to vote at any election of directors or other officers, and at any meeting of the stockholders of the , as fully as I might or could were I personally present. In Witness Whereof, I have hereunto set my hand and seal, this day of 18 Witnesses present, (Signature) (80.) Proxy, Revoking all Previous Proxies. Know all Men by these Presents, That I, the undersigned, stock- holder in the {name of the company) do hereby appoint my true and lawful attorney, with power of substitution, for me and in my name to vote at the meeting of the stockholders in said company, to be held at or at any adjournment thereof, with all the powers I should possess if personally present, hereby revoking all previous proxies. 18 Witness, (Signature.) (81.) Proxy, with Affidavit of Ownership, in Use in New York, Know all Men by these Presents, That I, do hereby constitute and appoint my attorney and agent for me and in my name, place, and stead, to vote as my proxy at any election of directors of the according to the number of votes I should be entitled to vote if then personally present. 240 PARTNERSHIP. In Witness Whereof, I have hereto set my hand and seal, this day of one thousand eight hundred and (Signature^ {Seal.) Signed, Sealed, and Delivered in Presence of I do swear {or affirm) that the shares on which my attorney and agent in the above proxy is authorized to vote, do not belong, and are not hypothecated to the said company, and that they are not hypothecated or pledged to any other corporation or person whatever ; that such shares have not been transferred to me for the purpose of enabling me to vote thereon at the ensuing election, and that I have not contracted to sell or transfer them upon any condition, agreement, or understanding, in relation to my manner of voting at the said election. Sworn to this day of i8 , before me, (Signature^ (82.) Power to Receive Dividend. Know all Men by these Presents, That I, of do authorize, constitute, and appoint to receive from the (na7ne of the company) the dividend now due to me on all stock standing to my name on the books of the said company, and receipt for the same ; hereby ratifying and confirming all that may lawfully be done in the premises by virtue hereof. Witness may hand and seal, this day of i8 (Signature.) (Seal.) Signed, Sealed, and Delivered hi the Presence of CHAPTER XVIII. PARTNERSHIP. SECTION I. WHAT A PARTNERSHIP IS. When two or more persons combine their property, labor, or skill, for the transaction of business for their common profit, they enter into partnership. Sometimes the word "firm" is used as synonymous with partnership ; sometimes, however, it means only the copartnership-name. HOW A PARTNERSHIP MA Y BE FORMED. 241 A single joint transaction, .out of which, considered by itself, neither profit nor loss arises, will not create a partner- ship, If a joint purchase be made, and each party then takes his distinct and several share of the goods, this is no part- nership. Any persons competent to transact business on their own account may enter into partnership for that pufpose, and no others. SECTION II. HOW A PARTNERSHIP MAY BE FORMED. No especial form or manner is necessary. It may be by oral agreement, or by a written agreement, which may have a seal or not. But the liability and authority of the partners begin with the actual formation of the partnership, and do not wait for the execution of any articles. In general, if there be an agreement to enter into business, or into some particular trans- action, together, and share the profits and losses, this constitutes a partnership, which is just as extensive as the business pro- posed to be done, and not more so. The parties may agree to share the profits in what proportion they choose ; but in the absence of any agreement, the law presumes equal shares. They may agree as to any way of dividing the losses, or even that one or more partners alone shall sustain them all, without loss to the rest. And this agreement is valid as between themselves ; but it will not protect those partners who were to- sustain no loss from responsibility to third parties, unless the third parties knew of this agreement between the partners, antf gave credit accordingly. If A, B, & C, being partners, agree that A should not lose anything by their business, and a person knowing this bargain dealt with the firm on the credit of B & C, he could not call on A. But an agreement exempt- ing partners from loss generally, or from loss beyond the amount invested, will only operate between the partners, unless it can be shown that the third party not only knew the agree- ment, but contracted with the firm on the basis of this agree- ment. And, generally, stipulations in articles of copartnership limiting the power of a partner, are not binding on third parties 16 242 PARTNERSHIP. who are ignorant of them. Each partner is absolutely responsi- ble to every creditor of the copartnership for the whole amount of the debt. And if thereby obliged to suffer loss, his only remedy is against the other partners. Although partners may agree and provide as they will in their articles, a long neglect of these provisions will be regarded as a mutual waiver of them. Persons may be liable as partners to third parties or strangers, who are not partners as between themselves. Whether they are partners as to each other would generally be determined by the intention of the parties, as drawn from their contract, — whether oral or written, — under the ordinary rules of evidence and construction. But whether one is liable as a partner to one who deals with the firm must depend in part upon his intention, but more upon his acts ; for if by them he justifies those who deal with the firm in thinking him a partner in that business, he must bear the responsibility ; as if he declare that he has a joint interest in the property, or conducts the business of the firm as a partner, accepting bills, or suffers his name to be used upon cards, or in advertisements, or on signs, or in any similar manner. The declarations or acts of one person cannot, however, make another person liable as partner, without co-operation or consent, by word or act, on his part. The rule is this : that one who thus holds himself out as a partner, when he really is not one, is responsible to a creditor who on these grounds believed him to be a partner ; but not to one who knew nothing of the facts, or who, knowing them, knew also that this person was not a partner. A secret partner is one who is actually a partner by partici- pation of profit, but is not avowed or known to be such ; and a dormant partner is one who takes no share in the conduct or control of the business of the firm. Both of these are liable to creditors (even if the creditors did not know them to be members of the firm), on the ground of their interest and participation in the profits, which constitute, with the property of the firm, the funds to which creditors may look for payment. A nominal partner is one who holds himself out to the world as such, but is not so in fact. He is liable to creditors of the firm, HOW A PARTNERSHIP MA Y BE DISSOLVED. 243 on the ground that he justifies them in trusting the firm on his credit, and, indeed, invites them to do so by declaring himself to be a partner. The principal test of membership in a mercantile firm is said to be the participation in the profits. Thus, if one lend money to be used in a business, for which he is to receive a share in the profits, this would make him a partner ; and if he is to receive lawful interest, and, in addition thereto, a share of the profits, this would generally make him liable as a partner to a creditor of the firm. Sometimes a clerk or salesman, or a person otherwise employed for the firm, receives a share of the profits, instead of wages. Formerly it was held, that if such person received any certain share, say " one-tenth part of the net annual profits," this made him liable as a partner; but if he received "a salary equal in amount to one-tenth of the net profits," this did not make him a partner. Now, the courts would look more at the actual intention of the parties, and their actual ownership of an interest in the funds of the partnership, and not be governed by the mere phraseology used. If in fact he works for wages, although these wages are measured by the profits, he is no partner, and therefore not liable for the debts, as every part- ner is. Hence, factors and brokers for a commission on the profits, masters of vessels who engage for a share of the profits, or seamen employed in whale-ships, are none of them partners. A partnership usually has but one business name ; but there does not seem to be any legal objection to the use of two names, especially for distinct business transactions ; as A B & Co. for general business, and the name of A C & Co. for the purpose of making or indorsing negotiable paper. SECTION III. HOW A PARTNERSHIP MAY BE DISSOLVED. If the articles between the partners do not contain an agreement that the partnership shall continue for a specified time, it may be dissolved at the pleasure of either partner. 244 PARTNERSHIP. But no partner can exercise this power wantonly and injuriously to the other partners, without making himself responsible for the damage he thus causes. If there be a provision that the pai-tnership shall continue a certain time, this is binding. If either partner were to undertake to assign his interest, for the purpose of withdrawing from the firm, against the will of the partners, without good reason, and in fraud of his express agreement, a court of equity would interfere and prevent him. For the assignment of a partner's interest, or of his share of the profits, operates at once a dissolution of the partnership. Such assignment may transfer to the assignee the whole interest of the assignor, but cannot give him a right to become a member of the firm. There seems to be an exception to this rule where the partnership is very numerous, and the manner of holding shares, by scrip or otherwise, indicates the original intention of making the shares transferable. Such a partner- ship is in effect a joint-stock company; which form of associa- tion is not usual here, because incorporation is better, and is easily obtained. Death of a general or even of a special partner operates a dissolution ; and the personal representatives of the deceased do not take his place, unless there be in the articles an express provision that they shall. And such provisions are construed as giving the heirs or personal representatives the right ol electing whether to become partners or not. If either party is unable to do his duty to the partnership, as by reason of insanity or a long imprisonment, or if he be guilty of material wrong-doing to the firm, a court of equity will decree a dissolu- tion. And if the original agreement were tainted with fraud, the court will declare it void, from its beginning. Whenever a court of equity decrees a dissolution of the partnership, it will also decree that an account be taken between the partners, if requested by either partner. And if necessary to do justice, it will decree a sale of the effects and a distribu- tion of the proceeds, after a consideration of all the facts of the case and the whole condition of the firm. Such a decree will be made if a partner die or become bankrupt. If the whole interest of a copartner is levied upon and sold THE PROPERTY OF THE PARTNERSHIP. 245 cn execution, this makes a dissolution, and the purchaser becomes, — like every other assignee of a partner, — not a part- ner, but only a tenant in common (that is, a joint owner) with the other partners ; but if the levy and sale are only of a part, which may be severed from the rest, this may not operate a! dissolution except as to that part. If one partner retires, this operates in law a dissolution, and the remaining partners constitute in law a new iirm, although in fact the old firm frequently continues and goes on with its business, with or without new members, as if it were the same firm. The partner retiring should withdraw his name from thei firm, and give notice, by the usual public advertisement, of his retirement, and also, by personal notice, by letter or otherwise, to all who usually do business with the firm ; and after such notice he is not responsible, even if his name be retained in the firm by the other partners, if this is done without his consent. Nor is he responsible to any one who has in any way actual knowledge of his retirement. A dormant or secret partner is not liable for a debt con- tracted after his retirement, although he give no notice, because his liability does not rest upon his giving his credit to the firm, but upon his being actually a partner. SECTION IV. THE PROPERTY OF THE PARTNERSHIP. A PARTNERSHIP may hold real estate as well as personal estate, and a partnership may be formed to trade in land, or to cultivate land. But the rules of law in respect to real estate, as in relation to title, conveyance, dower, inheritance, and the like, make some difference. As far, however, as is compatible with these rules, it seems to be agreed that the real estate of the partnership is treated as if it were personal property, if it have been purchased with the partnership funds and for part- nership purposes. There is some difficulty in explaining this matter to those who are not acquainted with the peculiar law of real estate. 246 PARTNERSHIP. Thus, no sale of land is valid except by deed, recorded ; and only one who is thus a grantee under seal by record has a legal title. But a court of equity acknowledges and protects an equitable title in those who really possess all the interest in the land, as partners do who have paid for it, though it stands in the name of one partner only. But a court of equity cannot disre- gard the laws of conveyance and record, and therefore say that this partner is the only legal owner, but that he owns the land as tnistee for the firm. And then they compel him to sell it, or otherwise dispose of it, as the interests of the firm or of their creditors require. So land thus purchased does not go to the heirs of the part- ner or partners in whose name it may stand, but is first subject to the debts of the firm, and then to the balance which may be due to either partner on winding up their affairs. But when these debts and claims are adjusted, any surplus of the real estate will then descend as real estate, and not as personal estate. Improvements made with partnership funds on the real estate of a partner will be regarded as partnership property. The widow has her dower only after the above-mentioned debts and claims are adjusted. And while the legal title is pro- tected, as it must be for the purpose of conveyance and other similar purposes, the person holding this legal title will be held as a trustee for the partnership if the partnership be entitled to the beneficiary interest. But a purchaser of partnership real property, without notice or knowledge, from a partner holding the same by legal title, is protected against the other partners. If, however, the purchaser has such knowledge, the conveyance may be avoided as fraudulent, or he may be held as trustee, the land being in his hands chargeable with the debts and claims of the partner- ship. SECTION V. THE AUTHORITY OF EACH PARTNER, AND THE JOINT LIABILITY OF THE PARTNERSHIP. This authority is very great, because the law-merchant makes each partner an agent of the whole partnership, with full AUTHORITY OF EACH PARTNER, ETC. 247 power to bind all its members and all its property, in transac- tions which fall within the usual business of the firm ; as loans, borrowing, sales — even of the whole stock, pledges, mortgages, or assignments ; and this last extends even to an honest and prudent assignment of the whole stock and personal property to trustees to pay partnership debts. It extends to the making or indorsing negotiable paper, and to transactions out of the usual business of the firm, if they arose from and were fairly con- nected with that business. Nor is any party dealing with a partner affected by his want of good faith towards the partnership, unless he colluded with the partner, and participated in his want of good faith, by fraud or gross negligence. But a holder of a note or bill signed or indorsed by a partner without authority, has no claim against the partnership, if he knew or should have known the want of authority. A partner cannot, in general, bind the firm by a guaranty, a letter of credit, or a submission to arbitration, without author- ity, because these things do not belong generally and properly to commercial business. But anything so done by a partner may be adopted and ratified by the partnership, and then it has the same force as if originally authorized. And this ratification may be formal and express, or consist only of acts which dis- tinctly imply it ; such as assenting to and acting with reference to it ; and especially receiving and holding the beneficial results of it ; as, for example, taking and holding money paid for it. By the earlier and more stringent rules of law, a partner could not bind his copartners by an instrument under seal unless he was himself authorized under seal ; and their subsequent acknowledgment of his authority did not cure the defect. Now, however, a partner may bind his firm by an instrument under seal, if it be in the name and for the use of the firm, and in the transaction of their usual business, provided the other copart- ners consent thereto before execution, or adopt and ratify the same afterwards ; and they may assent or ratify by word as well as by seal ; or provided he could have made the same convey- ance, or done the same act effectually without a deed. And a 248 PARTNERSHIP. deed executed by one partner in the presence and with the assent of the other partners, will bind them. A partnership has no seal at law, and can have none ; only a person or a corporation can have a seal. Instruments are some- times executed "A. B. & Co.," and a seal is affixed to the name. This is, strictly speaking, no seal at all ; and if the instrument needs a seal to make it valid, as if it were a deed of land, it would, at law, be wholly void. But the courts in some of our States are somewhat lax on this subject, and might construe it as the seal of each one of the partners to give the instrument validity. A majority of the members cannot conclusively bind the minority, unless in reference to the internal concerns of the firm ; as, for example, the salary or appointment of a clerk, the hiring or fitting-up of a counting-room, the manner of keeping accounts, and the like. But one member may, so far as he is concerned, arrest a negotiation which was only begun, and pre- vent a bargain which would be binding on him, by giving notice to the third party of his dissent and refusal in season to enable him to decline the bargain without detriment. Partners must act as such, to bind each other. Thus, if a partner makes a note, and signs it with his own name and his partner's name, as a joint and several note, it does not bind his partner, for he had no authority to make such a note. If the name of one partner be also the name of the firm, — for John Smith and Henry Robinson may do business as part- ners under the name of "John Smith," — this name is not neces- sarily the name of the firm when used in a note or contract ; and if the partner whose name is used carries on mercantile business for himself, it will not be supposed to be used as the name of the firm without sufficient proof. Persons may give a joint order for goods without becoming jointly liable, if it appear otherwise that credit was given to theni severally. Nor will one have either the authority or the obli- gation of a partner cast upon him by an agreement of the firm to be governed by his advice. Nor shall one be charged as partner with others unless he has incurred the liability by hig own voluntary act. A UTHORITY OF EA CH PARTNER, ETC. 249 The reception of a new member constitutes, in law, a new firm; but the new firm my recognize the old debts, as by- express agreement, or paying interest, or other evidence of adoption, and then the new firm is jointly liable for the old debt. But there must be some fact from which the assent of the new member to this adoption of the old debt may be inferred, for his liability is not to be presumed. A notice in legal proceedings, abandonment to insurers by one who was insured for himself and others, a notice to quit of one of joint lessors or lessees who are partners in trade, notice to one partner of the dishonor of a note or bill bearing the name of the firm, a release to one partner, or by one partner, — will bind all the partners, and render them jointly liable. But a service of legal process should be made upon each partner personally. If money be lent to a partner for partnership purposes, it creates a partnership debt ; but not if lent expressly on the individual credit of the person borrowing; and not if the bor- rowing partner receives it to enable him to pay his contribution to the capital of the firm. Though the money be not used for the firm, if it was borrowed by one partner on the credit of the firm, in a manner and under circumstances justifying the lender in trusting to that credit, it creates a partnership debt. And if a partner uses funds in his hands as trustee, for partnership purposes, the firm are certainly jointly bound, if it was done with their knowledge. And if it was done without their knowl- edge, and the partners are distinctly and directly benefited by the transaction, they will be deemed to have authorized it. If in any case a person, knowing the existence of the firm, gave credit to a single partner only, then he can look only to that partner, and not to the firm, although the money was applied to, and used for, partnership purposes. But if the partner held himself out as borrowing for the firm, and the lender without any want of due care gave credit to the firm, and the transac- tion was a fair business transaction on the part of the lender, the firm will be liable, although the money is fraudulently appro- priated by the partner to his own use. In the absence of evidence showing to whom the credit was 250 PARTNERSHIP. given, the fact that money lent to one partner was applied to the use of the firm will make the firm liable for the payment ; but not if the partner employed it as his contribution to increase the capital of the firm. If the purchaser of goods or the borrower of money have a dormant and secret partner, and the goods were bought or the money borrowed for partnership purposes, the seller or lender may look to both partners for payment, unless the seller or lender, knowing all the partners, gave credit to one only. The firm is liable only to one who deals with a partner in good faith. Thus, if one receives negotiable paper bearing the name of a firm, knowing that it is not in the business of the firm, and is given for no consideration received by the firm, he cannot hold the firm. And if a creditor of one partner receive for his separate debt a partnership security, this would be a fraud, unless the partner had, or was supposed by the creditor to have, the authority of the rest. If he supposed the partner had this authority, he cannot hold the partnership if the partner had not the authority, unless the partnership had caused him to believe it. And if the partner- ship security be transferred for two considerations, one of which is private and fraudulent, and the other is joint and honest, the partnership is bound for so much of it as is not tainted with fraud, and only for that. The partnership may be liable for injury caused by the crim- inal or wrongful acts of a partner, if these were done in the transaction' of partnership business, and if it was the partnership which gave to the wrong-doer the means and opportunity of doing the wrong. But an illegal contract will not bind the copartners, for the parties entering into it must be presumed to know its illegality ; and the law enforces no bargain that is con- trary to law. The acknowledgment of one who had been a partner, after the dissolution of the partnership, may take the debt out of the statute of limitations as to him, but not so as to restore the liability of all the partners without their assent. HEMEDIES OF PARTNERS AGAINST EACH OTHER. SECTION VI. 251 REMEDIES OF PARTNERS AGAINST EACH OTHER. It is seldom that a partner can have a claim against another partner, as such, which can be examined and adjusted without an investigation into the accounts of the partnership, and, per- haps, a settlement of them. Courts of law have ordinarily no adequate means of doing this ; and therefore it is generally true that no partner can sue a copartner at law for any claim growing out of partnership transactions and involving partnership inter- ests. But the objection to a suit at law between partners goes no further than the reason of it ; and, therefore, one may sue his copartner upon his agreement to do any act which is not so far a partnership matter as to involve the partnership accounts. If the accounts are finally adjusted, either partner may sue for a balance ; and so it would be if the accounts generally remained open, but a specific part of them were severed from the rest, and a balance found on that. The rule is generally laid down, that an action cannot be sustained by a partner against a part- ner for a balance, unless there is an express promise to pay it. But such promise would be inferred in all cases in which an account had been taken, and a balance admitted to be due. In general, any action at law between partners can be main- tained, only when a rendering of judgment in this action will completely terminate all partnership matters, so that no further cause of action can grow out of them. ' What a court of law cannot do as to actions between part- ners, a court of equity can ; and, generally, a court of equity has a full jurisdiction over all disputes and claims between partners, and may do whatever is necessary to settle them in conformity with justice. A partner may sue his copartner for money advanced before the partnership was formed, although the loan was made to pro- mote the partnership. And for work done for the firm before he became a member of it, he may sue those who were members when he did the work. And he may sue a copartner on his note or bill, although the consideration was on partnership account ; but, in general, no action at law can be maintained for work and labor performed, or money expended for the partnership. 252 PARTAERSHIP. A partner who pays more than his proportion of a debt of the partnership cannot demand specific contribution from his copartners, but must charge his payment to the firm. The reason is, that they may liave claims against him on other accounts, and they must be all settled together to strike the balance. If one of a firm be a member also of another firm, the one firm cannot sue the other ; for the same person cannot be plain- tiff and defendant of record. A cannot sue A ; and therefore A, B, & C cannot sue C, D, & E. In all these cases an adequate remedy may be found in a court of equity. If a firm have a negotiable note which it cannot sue, because one of its own firm is liable upon it and must be made defendant, it can indorse the note over, and the indorsee may sue it in his own name, as we have before stated. The partners are entitled to perfect good faith from each copartner ; and a court of equity will interfere to enforce this. No partner will be permitted to treat privately, and for his own benefit alone, for a renewal of a lease, or to transfer to himself any benefit or interest properly belonging to the firm. And so careful is a court of equity in this respect, that it will not permit a copartner, by his private contract or arrangement, to subject himself to a bias or interest which might be injurious to the firm, and conflict with his duty to them, but will declare void any contract of this kind. SECTION VII. RIGHTS OF THE FIRM AGAINST THIRD PARTIES. If a partner sells the goods of the firm in his own name, the firm may sue for the price. But the rights of one who deals in good faith with a copartner, as with him alone, are so far regarded, that he may set off any claim, or make use of any other defences against the suit of 'the firm, which he could have made had the person with whom he dealt sued alone. Therefore, if A honestly bought goods of a firm from a part- ner whom he supposed to be sole owner of them, and paid him the price, the firm cannot recover this price from the buyer, although the seller sold the goods fraudulently, and cheated the RIGHTS OF CREDITORS IN RESPECT TO FUMnii. 253 firm out of the money, but must charge the price to the selling partner. A guaranty to a copartner, if for the use and benefit of the firm, gives to them a right of action. A new firm, created by some change in the mehibership of an old firm, is entitled to the benefit of a guaranty given to the old firm, even if sealed, provided it shall distinctly appear that the instrument was intended to have that effect, and extend to the new firm. SECTION VIII. RIGHTS OF CREDITORS IN RESPECT TO FUNDS. The property of a partnership is bound to pay the pai tner- ship debts ; and, therefore, a creditor of one copartner has no claim to the partnership funds until the partnership debts are paid. If there be then a surplus, he may have that copartner's interest therein, in payment of his private debt. If a private creditor attaches partnership property, or in any way seeks to appropriate it to his private debt, the partnership debts being unpaid, he cannot hold it, either at law or in equity. Such attachment or appropriation is wholly subject to the para- mount claims of the partnership creditors, and is wholly defeated by the insolvency of the partnership, although the partnership creditors have not brought any actions for their debtS; Hence, if a creditor of A attaches his interest in the property of A, B & Co., and a creditor of A, B & Co. attaches the same property, the first attachment is postponed to the second ; that is, it has no effect until the debt of the second creditor is fully satisfied, and then it is good for the surplus of property. If, however, one partner is dormant and unknown, the creditor of the other attaching the stock is not postponed to the creditor who discovers the dormant partner and sues him with the other ; unless the first attaching creditor's claim has no reference to the partnership business, and that of the second attaching creditor has such reference. The partnership creditors are restrained from appropriating the private property of the copartners until the claims of their private creditors are satisfied in courts of equity. And some 254 PARTNERSHIP. recent adjudications indicate that the rule will become estab- lished at law. I think the law ought to be, and that it is uow tending to become, this. A partnership is a kind of body by itself, some- what like a corporation. It has its own funds, and its own debts. The individual members may also have each his own funds and his own debts. The funds of the partnership should first be applied to the debts of the partnership ; and, if there be any surplus, the mem- bers have it, and their creditors get it. So the private funds of each member should first be applied exclusively to the payment of that person's private debts ; and, when they are wholly paid, the surplus should go to the partnership creditors, because each partner is responsible for the partnership debts. This rule pre- vails on the continent of Europe very generally. It is now quite certain that the levy of a private creditor of one copartner upon partnership property can give him only what that copartner has ; that is, not a separate personal possession of any part or share of the stock or property, but an undivided right or interest in the whole, subject to the payment of debts and the settlement of accounts ; including also the right to demand an account. As to how such levy and sale of the interest of one copartner shall be. made by the sheriff, there is much diversity both of practice and authority. Upon principle, we think the sheriff can neither seize, nor transfer by sale, either the whole stock or any specific portion of it. He should, we think, without any actual seizure, sell all the interest of the defendant partner in the stock and property of the partnership ; much in the same way in which he would sell his right to redeem a mortgage, or any other incorporeal right, subject to attachment. The pur- chaser would then have a right to demand an account and settlement, and a transfer to himself of any balance or prop- erty to which the copartner whom be sued would have been entitled. Where the trustee process, or process of foreign attachment, is in use, the better way would be for the sheriff to return a general attachment of all the interest of the debtor in the part- THE EFFECTS OF DISSOLUTION. 255 nership property, and summon the other partners as the trustees of the debtor. It must be stated, however, that the rules of law in regard to the liability of partnership property for the private debts of part- ners, and as to how any such liability may be enforced, are, at present, somewhat obscure and uncertain. SECTION IX. THE EFFECTS OF DISSOLUTION. If the dissolution is caused by the death of any partner, the whole property goes to the surviving partners. They hold it, however, not as their own, but only for the purpose of settle- ment ; and therefore they have, in relation to it, all the power which is necessary for that purpose, and no more. If they carry on the business with the partnership funds, they do so at their own risk ; and the representatives of the deceased may require their share of the capital, and choose between calling on them, in addition, for interest, or for a share of the profits. The survivors are not partners, but tenants in common (joint owners) with the representatives of the deceased of the stock or property in possession ; and have all necessary rights to settle the affairs of the concern and pay its debts. After a dissolution, however caused, one who had been a partner has no authority to make new contracts in the name of the firm, as to make or indorse notes or bills with the name of the firm, even if he be expressly authorized to settle the affairs of the firm. There must be a distinct authority to sign for the others who were formerly partners. A parol authority will be sufficient, even if the general terms of the partnership had been reduced to writing. It is common, where a partnership is dissolved by mutual consent, to provide that some one of the partners shall settle up the affairs of the concern, collect and pay debts, and the like. But this will not prevent any person from paying to any partner a debt due to the firm ; and, if such payment be made in good faith, the release or discharge of the partner is effectual. If all the debts were assigned and transferred to any person, 256 PARTNERSHIP. as his property, any debtor who had notice of this would be bound to make payment to this person alone ; and, if he paid anybody else, he would be obliged to pay the money over again. It is frequently provided, that one partner shall take all the property and pay all the debts ; but this agreement, though valid between the partners, has no effect upon the rights of third parties against the other partners ; for they have a valid claim against all the partners, of which they cannot be divested without their consent. This consent of the creditor may be inferred, but not from slight evidence ; thus, not from receiving the single partner's note as a collateral security, nor from receiving interest from him on the joint debt, nor from a mere change in the head of the account, charging the single partner and not the firm. Still, as the creditor certainly can assent to this arrangement, and accept the indebtedness of one partner instead of that of the firm, so it must be equally clear that such assent and intention will bind him, if distinctly proved by circumstances. SECTION X. LIMITED PARTNERSHIPS. These have been introduced into some of our States, by statutes, which differ somewhat in their provisions. Generally, they require, first, one or more general partners, whose names shall be known ; secondly, special partners, who do not appear as members, nor possess the powers or discharge the duties of actual partners ; thirdly, the sum to be contributed by the special partners shall be actually paid in ; lastly, all these arrange- ments, with such other information as may be needed for the security of the public, must be verified under oath, signatures of all the parties, and acknowledgment before a magistrate, and correctly published. When these requisites are complied with, the special partners may lose all they have put in, but cannot be held to any further responsibility. But any neglect of them, or any material mistake in regard to them, even on the part of the printer of the advertisement, wholly destroys their effect ; and then the special partner is liable for the whole debt, precisely like a general partner. ARTICLES OF COPARTNERSHIP. 257 In a New York case, the amount contributed by the special partner was, by mistake of the printer, stated at ;^S,ooo, instead of ^2,000, and it was held that the associates were liable as gen- eral partners, although the plaintiff did not show that he was actually misled by the error. In another New York case, it was held that an assignment of the partnership property, providing for the payment of a debt due to the special partner, ratably with the other creditors of the firm, or before all the other cred- itors are satisfied in full for their debts, is void as against the creditors ; but it would be valid as against the assignor and those creditors who think proper to affirm it. (83.) Articles of Copartnership between two Tradesmen. Articles of Agreement, Had, made, concluded, and agreed upon, this day of A.D. between of trader, and of trader. First of all, the said and have agreed, and by these presents do agree, to become copartners together in the art or trade of and all things thereto belonging, and also, in buying, selling, vending, and retailing all sorts of wares, goods, and commo- dities belonging to the said trade of which said copartnership, it is agreed, shall continue from for and during, and unto the full end and term of years, from thence next ensuing, and fully to be complete and ended. And to that end and purpose he the said hath the day of date of these presents, delivered in as stock, the sum of and he the said the sum of to be used, laid out, and employed, in common trade between them, for the management of the said trade of to their utmost benefit and advantage. And it is hereby agreed between the said parties, and the said copartners, each for himself respectively, and for his own particular part, and for his executors and administrators, that each doth covenant, promise, and agree, to and with the other of them, his executors and admin- istrators, by these presents, in manner and form following (that is to say) that they the said copartners shall not nor will, at any time hereafter, use, exercise, or follow the trade of aforesaid, or any other trade ■whatsoever during the said term, to their private benefit and advantage ; but shall and will, from time to time, and at all times, during the said term (if they shall so long live), do their and each of their best an^ utmost endeavors, in and by all means possible, to the utmost of their skill and power, for their joint interest, profit, benefit, and advantage, and truly employ, buy, sell and merchandise, with the stock aforesaid, and the increase thereof in the trade of aforesaid, without any sinister intentions or fraudulent endeavors whatsoever. And also that they the said copartners 17 258 PARTNERSHIP. shall and will, from time to time, and at all times hereafter, during the said terra, pay, bear, and discharge, equally between them, the rent of the shop, which they the said copartners shall rent or hire, for the joint exercising or managing of the trade aforesaid. And that all such gain, profit, and increase, as shall come, grow, or arise, for or by reason of the said trade, or joint business as aforesaid, shall be from time to time, during the said term, equally and proportionably divided between them the said copartners, share and share alike. And also that all such losses as shall happen in the said joint trade, by bad debts, ill commodities, or otherwise without fraud or covin, shall be paid and borne equally and proportionably between them. And further, it is agreed by and between the said copartners, that there shall be had and kept from time to time, and at all times during the said term and joint business and copartnership together as aforesaid, perfect, just, and true books of account, wherein each of the said copartners shall duly enter and set down, as well all money by him received, paid, expended and laid out, in and about the management of the said trade, as also all wares, goods, commodities, and merchandises, by them or either of them bought and sold by reason or means or upon account of the said copartnership, and all other matters and things whatsoever, to the said joint trade, and the management thereof, in anywise belonging or appertaining, which said books shall be used in common between the said copartners, so that either of them may have free access thereto without any interruption of the other. And also that they the said copartners, once in three months, or oftner if need shall require, upon the reasonable request of one of them, shall make, yield, and render, each to the other, or to the executors or administrators of the other, a true, just, and perfect account of all profits and increase, by them or either of them made, and of all losses by them or either of them sustained, and also of all payments, receipts, and disbursements whatsoever, by them or either of them made or received, and of all other things by them or either of them acted, done, or suffered in the said copartnership and joint business as aforesaid ; and the same account being so made, shall and will clear, adjust, pay, and dehver, each unto the other, at the time of making such account, their equal shares of the profits so made as aforesaid ; and at the end of the said term of or other sooner determination of these presents (be it by the death of one of the said partners or otherwise), they the said copartners, each to the other, or in case of the death of either of them, the surviving party to the executors or administrators of the party deceased, shall and will make a true, just, and final account of all things as aforesaid, and divide the profits aforesaid, and in all things well and truly adjust the same, and that also upon the making of such final account, all and every the stock and stocks, as well as the gains and increase thereof, which shall appear to be remaining, whether consisting of money, wares, debts, shall be equally parted and divided between them the said copartners, their executors or administrators, share and share alike. In Witness Whereof, &c. (JSi^natures^ ARTICLES OF COPARTNERSHIP. 259 Various Covenants and Clauses which may be intropucep ij^ Articles of Copartnership according to circumstances. Not to trust any one ivhom the Copartner shall forbid. And that neither of the said parties shall sell or credit any goods or merchandise belonging to the said joint trade, to any person or persons, after notice in writing from the other of the said parties, that such person or, persons are not to be credited or trusted. Not to release any Debt -without Consent, &'c. And that neither of the said parties shall, without the consent of the other, release or compound any debt or demand, due or coming to them on account of their said copartnership, except for so much as shall actually be received, and brought into the stock or cash account of the said partnership. Not to be bound, or indorse Bills, Sr'c, for any one without Consent^ Gr'c. And that neither of the said parties shall, during this copartnership, without the consent of the other, enter into any deed, covenant, bond, or judgment, or become bound as bail or surety, or give any note, or accept or indorse any bill of ejfchange for himself and partner, without the consent of the other first had and obtained, with or for any person whatsoever. Neither Party to assign his Interest, Gr'c. And it is agreed between the said parties, that neither of the said parties shall, without the consent of the other, obtained in writing, sell or assign his share or interest in the said joint trade, to any person or persons whatso- ever. Principal Clerk to be Receiver of Moneys, dir'c. That the principal clerk for the time being shall be the general receiver of all the money belonging to the said joint trade, and shall thereout pay all demands, ordered by the said parties, and shall from time to time pay the surplus cash to such banker as the said partners shall nominate. Parties to draw quarterly, dr'c. That it shall be lawful for each of them to take out of the cash of the joint stock the sum of quarterly, to his own use, the same to be charged on account, and neither of them shall take any further sum for his own separate use, without the consent of the other in writing; and any such further sum, taken with such consent, shall draw interest after the rate of per cent., and shall be payable together with the interest due, within days after notice in writing given by the other of the said parties. (84.) Shorter Form of Articles of Copartnership. Articles of Agreement, Made the day of one thousand eight hundred and between 26o PARTNERSHIP. (the names and residences of the two parties) as follows : The said parties above named have agreed to become copartners in business, and by these presents do agree to be copartners together under and by the name or firm of in the buying, selling, and vending all sorts of goods, wares, and merchandise to the said business belonging, and to occupy the their copartnership to commence on the day of and to continue and to that end and purpose the said ijiere state the contributions of each of the parties) to be used and employed in common between them for the support and management of the said business, to their mutual benefit and advantage. And it is agreed by and between the parties to these presents, that at all times during the continuance of their copartnership, they and each of them will give their attendance, and do their and each of their best endeavors, and to the utmost of tlieir skill and power exert themselves for their joint interest, profit, benefit, and advantage, and triily employ, buy, sell, and merchandise with their joint stock, and the increase thereof, in the business aforesaid. And also that they shall and will at all times during the said copartnership bear, pay, and discharge equally between them, all rents and other expenses that may be required for the support and management of the said business ; and that all gains, profit, and increase that shall come, grow, or arise from or by means of their said business, shall be divided between them {state whether equally, or in what proportions) and all loss that shall happen to their said joint business, by ill commodities, bad debts, or otherwise, shall be borne and paid between them. And it is agreed by and between the said parties, that there shall be had and kept at all times during the continuance of their copartnership, perfect, just, and true books of account, wherein each of the said copartners shall enter and set down, as well all money by them or either of them received, paid, laid out, and expended in and about the said blisiness, as also all goods, wares, commodities, and merchandise, by them or either of them, bought or sold by reason or on account of the said business, and all other matters and things whatsoever to the said business and the management thereof in any wise belonging ; which said books shall be used in common between the said copartners, so that either of them may have access thereto, without any interruption or hindrance of the other. And also the said copartners, once in or oftener if necessary, shall make, yield, and render, each to the other, a true, just, and perfect inventory and account of all profits and increase by them, or either of them, made, and of all losses by them, or either of them, sustained ; and also all payments, receipts, disbursements, and all other things by them made, received, disbursed, acted, done, or suffered in this said copartnership and business, and the same account so made shall and will clear, adjust, pay, and deliver, each to the other, at the time, their just share of the profits so made as aforesaid. ARTICLES OF COPARTNERSHIP. 261 And the said parties hereby mutually covenant and agree to and with each other, that, during the continuance of the said copartnership, neither of them shall nor will indorse any note, or otherwise become surety for any person or persons whomsoever, without the consent of the other of the said copartners. And at the end, or other sooner determination of their copart- nership, the said copartners, each to the other, shall and will make a true, just, and final account of all things relating to their said business, and in all things truly adjust the same ; and all and every the stock and stocks, as well as the gains and increase thereof, which shall appear to be remaining, either in money, goods, wares, fixtures, debts, or otherwise, shall be divided between them. In Witness Whereof, (Signatures^ (85.) Certificate of a Limited Partnership with Acknowledgment, and Oath. This is to Certify, That the undersigned have, pursuant to the pro- visions of the Statutes of the State of formed a limited partnership, under the name or firm of that the general nature of the business to be transacted is {describe the business) and that the general partner and is the special /ar/««?- and that the said {the special partner') hath contributed the sum of dollars, as capital towards the common stock, and that the said partnership is to commence on the day of and is to terminate on the day of 18 Dated this day of one thousand eight hundred and {Signatures^ County of ss. On the day of one thousand eight hundred and before me came to be the individuals described in, and who executed the above certificate, and they severally acknowledged that they executed the same. County of ss. the general partner named in the above certificate, being duly sworn, doth depose and say, that the sum specified in the said certificate to have been contributed by the special partner' to the common stock has been actually and in good faith paid in cash. Sworn this day of 18 before me, In some of the States, the oath should be madte by the general partner ; and it would always be safe for all the partners, general and special, to take the oath, and be included in the certificate. 262 ARBITKA TTOJV. CHAPTER XIX. ABBITRiTION. SECTI02Sr I. OF THE SUBMISSION AND AWARD. [By the Submission (or reference) is meant the submission of the question or questions to arbitrators.] The law favors arbitration in many respects as a peaceable and inexpensive mode of settling difficulties. Parties may agree to refer a question by an oral agreement, or by a written agreement. The form is not essential. But it is always best to reduce the agreement to writing, and to express it carefully. But parties may, in many of our States, go before a magistrate and agree to refer in the manner pointed out by the statute. In all of them a case may be taken out of court and submitted to referees under an order of court. The first essential of an award, without which it has no force whatever, is, that it be conformable to the terms of the submission. The authority given to the arbitrators should not be exceeded ; and the precise question submitted to them, and neither more nor less, should be answered. Neither can the award affect strangers (or those who are not parties to it) ; and, if one part of it is that a stranger shall do some act, it is not only of no force as to the stranger, but of no force as to the parties if this unauthorized part of the award cannot be taken away without affecting the rest of the award. Nor can it require that one of the parties should make a J)ayment, or do any similar act, to a stranger. But if the stranger is mentioned in an award only as agent of one of the parties, which he actually is or as trustee, or as in any way paying for, or receiving for, one of the parties, this does not invalidate the award. And in favor of awards, it has been said that this will be supposed, where the contrary is not indicated. If the award embrace matters not included in the submis-. sion, it is fatal. If, however, the portion of the award which SUBMISSION AND A WARD. 263 exceeds the submission can be separated from the rest without affecting the merits of the award, it may be rejected, and the rest will stand ; otherwise the whole is void. If the submis- sion specify the particulars to which it refers, or if, after general words, it make specific exceptions, its words must be strictly followed. If these words are very general, they will be construed liberally, but yet without extending them beyond their fair meaning. On the other hand, all questions sujjmitted must be decided, unless the submission provides otherwise ; and either party may object to an award, that it omits the decision of some question submitted; but the objection is invalid if it be shown that the party objecting himself withheld that question from the arbitrators. Nor is it necessary that the award embrace all the topics which might be considered within the terms of a general submission. It is enough if it pass upon those ques- tions brought before the arbitrators, and they are so far dis- tinct and independent that the omission of others leaves no uncertainty in the award. If the award does not embrace all of the matters within the submission which were brought to the notice of the arbitrators, it is altogether void. In the next place, an award must be certain ; that is, it must be so expressed that no reasonable doubt can be entertained as to the meaning of the arbitrators, the effect of the award, or the rights and duties of the parties under it. For the very purpose of the submission, and the end for which the law favors arbitration, is the final settlement of all questions and disputes ; and this is inconsistent with uncertainty. In the next place, the award must h& possible ; for an award requiring that to be done which cannot be done is senseless and useless. But the impossibility which vitiates an award is one which belongs to the nature of the thing, and not to the acci- dental disability of the party at the time. Thus, if he be ordered to pay money on a day that is past, this is void ; so if he be required to give up a deed which he neither has nor may expect to have ; but if he be directed to pay money, the award is good, although he has no money, for it creates a valid debt against him. Nor can a party avoid an award on the ground of 264 ARBITRATION. an impossibility created by himself, after the award, or indeed beforehand, if he created it for the purpose of evading an expected award. This impossibility may be actual, or it may be that created by law ; for an award which requires that a party should do what the law forbids him to do is void, either in the whole, or else for so much as is thus against the law, if that illegal part can be severed from the rest. An award must be reasonable ; if it be of things in them- selves of no value or advantage to the parties, or out of all proportion to the justice and requirements of the case, or if it undertake to determine for the parties what they should deter- mine for themselves, as that the pities should intermarry, it is void. Lastly, the award must bejfw^/and conclusive. This neces- sity springs also from the very purpose for which the law favors arbitration, namely, the settlement and closing of disputes. It is not a valid objection to an award, that it is upon a condition, if the condition be clear and certain, consistent with the rest of the award, in itself reasonable, and such that there could be no doubt whether it were performed or not, or what were the rights or obligations dependent upon it. An award may be open to any or all of these objections in part, without being necessarily void in the whole. So much of it as is thus faulty is void ; but if this can be severed dis- tinctly from the residue, leaving a substantial, definite, and unobjectionable award behind, this may be done, and the award then will take effect. It is therefore void in the whole because bad in part, only where this part cannot be severed from the residue ; or where, if it be severed and amended, leaving the residue in force, one of the parties will be held to an obligation imposed upon him, but deprived of the advantage or recompense which it was intended that he should have. Gen- erally, in the construction of awards, they are favored and enforced, wherever this can properly be done. If the submission be in the most general terms, and the award equally so, covering " all demands and questions " between the parties, either party may still show that a particular demand SUBMISSION AND AWARD. 265 either did not existy or was not known to exist, when the sub- mission was entered into, or that it was not brought before the notice of the arbitrators, or considered by them ; and then the award will not be permitted to affect this demand. If, by an award, money is to be paid in satisfaction of a debt, this implies an award of a release on the other side, and makes this release a condition to the payment. There is no especial form of an award necessary in this coun- try. If the submission requires that it should be sealed, it must be so. And if the submission was made under a statute, or under a rule of court, the requirements of the statute or the rule should be followed. But even here mere formal inaccuracies would seldom be permitted to vitiate the reward. If the submission contains other directions or conditions, as that it should be delivered to the parties in writing, or to each of the parties, such directions must be substantially followed. Thus, in the latter case, it has been held that it is not enough that a copy be delivered to one of the parties on each side, but each individual party must have one. It may happen, where an award is offered in defence, or as the ground of an action, that it is open to no objection whatever for anything which it contains or which it omits ; and yet it may be set aside for impropriety or irregularity in the conduct of the arbitrators, or in the proceedings before them. Awards are thus set aside if "procured by corruption or undue means."" This rule rests, indeed, on the common principle, that fraud vitiates and avoids every transaction. So, too, it may well be set aside if it be apparent on its face that the arbitrator has made a material mistake of fact or of law. It must, however, be rather a strong case in which the court would receive evidence of a mere mistake, either in fact, or in law, which did not appear in the award, and was not supposed to spring from or indicate corruption. Another instance of irregularity is the omission to examine witnesses ; or an examination of them when the parties were not present, and their absence was for good cause ; or a concealment by either of the parties of material circumstances ; for this would be fraud. So if the arbitrators, in case of disagreement, were 266 ARBITRA TION. authorized to choose an umpire, but drew lots which of them should choose him. But it has been held enough that each arbitrator named an umpire, and lots were drawn to decide which of these two should be taken, because it might be considered that both of these men were agreed upon. And if an umpire be appointed by lot, or otherwise irregularly, if the parties agree to the appointment, and confirm it expressly, or impliedly by attending before him, with a full knowledge of the manner of the appointment, this covers the irregularity. SECTION II. THE REVOCATION OF A SUBMISSION TO ARBITRATORS. It is an ancient and well established rule, that either party may revoke his submission at any time before the award is made ; and by this revocation render the submission wholly ineffectual, and of course take from the arbitrators all power of making a binding award. And, generally, this power exists until the award is made. In this country, our courts have always excepted from this rule submissions made by order or rule of court ; for a kind of jurisdiction is held to attach to the arbitrators, and the submis- sion is quite irrevocable, except for such cases as make it nec- essarily inoperative. There is a strong reason why a submission by order of court, or before a magistrate, should be preferred where it can be had, from the fact above stated, that the law permits any party who finds an award is going against him to revoke his submission or reference when he will, before the award is made ; provided the award was only by agreement out of court, or not before a mag- istrate. In some of our States, the statutes authorizing and regulating arbitration provide for the revocation of the submis- sion. It should be stated, however, that, as an agreement to sub- mit is a valid contract, the promise of each party being the con- sideration for the promise of the other, a revocation of the agree- ment or of the submission is a breach of the contract, and the other party has his damages. And damages would generally REVOCATION OF SUBMISSION TO ARBITRATORS. 267 include all the expenses the plaintiff has incurred about the submission, and all that he has lost by the revocation, in any way. If either party exercise this power of revocation, he must give notice in some way, directly or indirectly, to the other party ; and until such notice, the revocation is inoperative. Bankruptcy or insolvency of either or both parties does not necessarily operate as a revocation, unless the terms of the agreement to refer, or the provisions of the insolvent law, required it. But the assignees acquire whatever power of revocation the bankrupt or insolvent possessed, and, generally,, at least, no further power. The death of either party before the award is made vacates the submission, if made out of court, unless that provides in terms for the continuance and procedure of the arbitration, if such an event occur. But a submission under a rule of court is not revoked or annulled even by the death of a party. So the death or refusal or inability of an arbitrator to act would annul a submission out of court, unless provided for in the agreement ; but not one under a rule of court, unless for especial reasons, satisfactory to the court, which would make an appointment of a substitute, if it saw fit to continue the reference. It may be well to add, that, after an award is fully made, neither of the parties without the consent of the other, nor either nor all of the arbitrators without the consent of all the parties, have any further control over it. If the submission provides for any method of delivering the award, this should be followed. If not, it is common for the referees to deliver the award to the prevailing party or his attor- ney, on payment by him of the fees of arbitration. Then the prevailing party looks to the losing party, for the whole, or a part, or none of the costs, as the award may determine. The award should be sealed, and addressed to all the parties ; and it should not be opened except in presence of all the parties, or of their attorneys, or with the consent of those absent indorsed on the award. If the submission is under a rule of court, it should be returned to court by the arbitrators, or the counsel receiving it, sealed, and opened only in court, or before the clerk, or with the written consent of parties. 268 ARBITRATION. The submission, or agreement to refer, may be made by exchange of Bonds, each party executing and delivering a Bond to the other party. This would be a formal proceeding. But, as has been already said, no especial form is necessary ; and often a very simple one, like that below, would suffice. (86.) Simple Agreement to Refer. Know all Men, That we, of and of do hereby, promise and agree, to and with each other, to submit, and do hereby submit, all questions and claims between us (or any specific question or claim, describing it) to the arbitrament and determination of [here name the arbitrators) whose decision and award shall be final, binding, and conclusive on us ; (add if there are more arbitrators than one, and it is intended that they may choose an umpire) and, in case of disagreement between the said arbitrators, they m?,y choose an umpire, whose award shall be final and conclusive ; (or add, if there be more than two arbitrators) and, in case of disagreement, the decision and award of a majority of said arbitrators shall be final and conclusive. In "Witness "Whereof, &c. (Sig7iatures^ (81.) Arbitration Bond. One or more Arbitrators. Know all Men by these Presents, That I, (one of the parties) am held and firmly bound unto (the other party) in the sum of dollars, lawful money of the United States of America, to be paid to the said (the other party) executors, administrators, or assigns; for which payment, well and truly to be made, I hereby bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal. Dated the day of one thousand eight hundred and The Condition of the above Obligation is such, That if the above bounden shall well and truly submit to the decision of (the referee) named, selected, and chosea arbitrator as well by and on the part and behalf of, the said as of the said between whom a controversy exists, to hear all the proofs and allegations of the parties of and concerning (here set forth the claims or questions referred) and all matters relating thereto, and that the award of the said arbitrator be made in writing, subscribed by him (or them) and attested by a subscribing witness, ready to be delivered to the said parties oa or before the day of next. A PRIVATE CARRIER. 269 But before proceeding to take any testimony therein, the arbitrator shall be sworn, "faithfully and fairly to hear and examine the matters in controversy between the parties to these presents, and to make a just award according to the best of his (or their) understanding." And the said parties to these presents do hereby agree, that judgment in the case (in question) shall be rendered upon the award which may be made pursuant to this submission, to the end that all matters in controversy in that behalf, between them, shall be finally concluded. Then the above obligation to be void, otherwise to remain in full force and virtue. (Signature) {Seal.) Signed, Sealed, and Delivered in Presence of [To make the contract complete, the other party should execute and deliver a counterpart of this Bond.] (88.) Award of Arbitrators. To all to -wlioin these Presents shall come, We {names of the arbi- trators), to whom was submitted as arbitrators the matters in controversy existing between as by the condition of their respective bonds of submission, executed by the said parties respectively, each unto the other, and bearing date the day of one thousand eight hundred and more fully appears. Now, therefore, know ye, That we the arbitrators mentioned in the said bonds having been first duly sworn according to law, and having heard the proofs and allegations of the parties, and examined the matters in controversy by them submitted, do make this award in writing ; that is to say, the said {here follows the award) In Witness Whereof, have hereunto subscribed these presents, this day of one thousand eight hundred and {Signatures) In Presence of CHAPTER XX. THE CARRIAGE OF GOODS AJiTO PASSENGERS, SECTION I. A PRIVATE CARRIER. One who carries goods for another is either a private carrier or a common carrier. A private carrier is one who carries for others once, or some- times, but who does not pursue the business of carrying as his 270 THE CARRIAGE OF GOODS AND PASSENGERS. usual and professed occupation. The contract between him and the owner of the goods which he carries is one of service, and is governed by the ordinary rules of law. Each party is bound to perform his share of the contract. Such a carrier must receive, care for, carry, and deliver the goods, in such wise as he bargains to do. If he carries the goods for hire, whether actually paid or due, he is bound to use ordinary diligence and care ; by which the law means such care as a man of ordinary capacity would take of his own property under similar circumstances. If any loss or injury occur to the goods while in his charge, from the want of such care or diligence on his part, he is responsible. But if the loss be chargeable as much to the fault of the owner as of the carrier, he is not liable. The owner must show the want of care or diligence on the part of the private carrier, to make him liable ; but slight evidence tending that way would suffice to throw upon him the burden of accounting satisfactorily for the loss. And if there is such negligence on the part of the carrier, or of a servant for whom he is responsible, the carrier is liable, although the loss be caused primarily by a defect in the thing carried. If he carries the goods without any compensation, paid or promised, he is, in the language of the law, a gratuitous bailee, or mandatary : he is now bound only to slight care ; which is such care as every person, not insane or fatuous, would take of his own property. For the want of this care, which would be gross negligence, he is responsible, but not for ordinary negli- gence. We sum up what may be said of the private carrier in the remark, that the general rules which regulate contracts and mutual obligations apply to the duties and the rights of a pri- vate carrier, with little or no qualification. But it is otherwise with a common carrier. SECTION II. THE COMMON CARRIER. The law in relation to the rights, the duties, and the respon- sibilities of a common carrier is quite peculiar. The reasons for THE COMMOM CARRIER. 27 1 it are discernible, but it rests mainly upon established usage and custom. And, as these, usages have changed considerably in modern times, this law has undergone important modifications. He is a common carrier " who undertakes, for hire, to trans- port the goods of such .as choose to employ him from some known and definite place or places to other known and definite place or places." He is one who undertakes the carriage of goods as a business ; and it is mainly this which distinguishes him from the private carrier. The rights and responsibilities of the common carrier may be briefly stated thus : He is bound to take the goods of all who offer, if he be a carrier of goods, and the persons of all who offer, if he be a carrier of passengers ; and to take due care and make due transport and delivery of them. He has a lien on the goods which he carries, and on the baggage of passengers, for his com- pensation. He is liable for all loss or injury to the goods under his charge, although wholly free from negligence, unless the loss happens from the act of God, or from the public enemy. ' These three rules will be considered in the next section. The important thing to be remembered is, that a private ■carrier is not liable for injury to persons, or loss of or injury to goods, without fault or negligence on his part ; but a common carrier is liable, without any fault or negligence on his part. Truckmen or draymen, porters, and others who undertake the carriage of goods for all applicants from one city or town to another, or from one part of a city to another, are chargeable as common carriers. So, proprietors of stage-coaches are charge- able as common carriers of passengers, and of the baggage of passengers ; or the baggage of others, if they so advertise them- selves. So are hackney-coachmen within their accustomed range. If drivers of stages, or omnibuses, commonly carry and receive pay for goods or parcels which are not the baggage of passengers, and are held out or advertised, or generally known, as so carrying them, they are common carriers of goods, and the proprietors are liable for the loss of such parcels, although neither they nor the drivers were in fault. But if there is no such habit or usage, and the driver receives such a parcel to be 272 THE CARRIAGE OF GOODS AND PASSENGERS. carried somewhere, and is paid for it, the driver carries it as a private carrier, and not as a common carrier, and is chargeable only for negligence or fault. And if the line of carriages is established for passengers, and the driver does not account for what is paid him for occasional parcels, but takes it as his own perquisite, the proprietors are not answerable even for the driver's fault or negligence, unless circumstances in some way bring the fault home to them. In this country, in recent times, the business of carrying goods and passengers is almost monopolized by what are called expressmen, by railroads, or by lines of steam-packets along our coasts, or upon our navigable streams or lakes. All these are undoubtedly common carriers ; and although their peculiar method of carrying on this business is new, and will require from us especial consideration in another chapter, there can be no doubt of their being, to all intents and purposes, common carriers. Ordinary sailing vessels are sometimes said to be common carriers. We should be disposed to restrict this term, however, to regular packets ; or, at most, to call by this name general freighting ships. It is not, however, necessary to consider this question, as water-borne goods are now almost always carried under bills of lading, which determine the relations and respect- ive rights of the parties ; and these we shall consider in our chapter on the Law of Shipping. The boatmen on our rivers and canals are common carriers, and ferrymen are common carriers of passengers by their office, and may become common carriers of goods by taking up that business. A steamboat usually employed as a carrier may do something else, as tow a vessel out of a harbor, or the like; and the character of common carrier does not attach to this special employment, and carry with it its severe liabilities. Therefore, for a loss occurring to a ship in her charge while so employed, the owner of the steamer is not liable without negligence on his part, or on the part of those whom he employs. The same person may be a common carrier, and also hold other offices or relations. He may be a warehouseman, a wharfinger, or a forwarding merchant. The peculiar liabilities of the common carrier do not attach to either of these offices OBLIGATION OF THE COMMON CARRIER. 273 or employments. Thus, a warehouseman is liable for the loss of the goods which he takes for storage, only in case of his own negligence ; he is not, as a common carrier is said to be, an insurer of the goods. The question then arises, when the lia- bility of such a person is that of a warehouseman, and when it is that of a carrier. If a carrier receives goods to be stored until he can carry them, — a canal-boatman, for example, — or if, at the end of the journey, he stores them for a time for the safety of the goods or the convenience of the owner, while thus stored he is liable only as warehouseman. But if he puts them into his store or office only for a short time, and for his own convenience, either at the beginning or end of the transit (or journey), they are in his hands as carrier. Where these relations seem to unite and mingle in one per- son, it may be said to be the general rule, that, wherever the deposit, in whatever place or building, is secondary and subor- dinate to the carriage of the goods, which is, therefore, the chief thing, the party taking the goods is a carrier ; and otherwise a depositary only of .some kind. If, therefore, goods are deliv- ered to a carrier, or at his depot or receiving-room, with direc- tions not to carry them until further orders, he is only a depositary, and not a carrier, until those orders are received ; but when they are received he becomes a carrier ; and if the goods are afterwards lost or injured before their removal, he is liable as a common carrier without negligence or fault on his part. SECTION III. THE OBLIGATION OF THE COMMON CARRIER TO RECEIVE AND CARRY GOODS OR PASSENGERS. He cannot refuse to receive and carry goods offered, with- out good cause ; for, by his openly announcing himself in any way as engaged in this business, he makes an offer to the public which becomes a kind of contract as to any one who accepts it. He may demand his compensation, however, and, if it be refused, he may refuse to carry the goods ; nor is he bound to carry them if security be offered to him, but not the money. But if the freight-money be not demanded, the owner of the 18 274 ^-^-^ CARRIAGE OF GOODS AND PASSENGERS. goods, if he is able, ready, and willing to pay it, has all his rights although he does not make a formal tender of the money. A carrier may refuse if his means of carriage are already fully employed. But, in a case where a railway company, being com- mon carriers, had issued excursion-tickets for a journey, it was held that they were not_ excused from carrying passengers according to their contract, upon the ground that there was no room for them in their conveyance ; and that, in order to avail themselves of this answer, they should make their contract condi- tional upon there being room. If the common carrier cannot carry the goods without danger to them, or to himself or other goods, or without extraordinary inconvenience, or if they are not such goods as it is his regular business to carry, he is excused for not carrying them. He is always entitled to his ustial charge, but not to extraordinary compensation, unless for extraordinary service. The common carrier of goods is bound to receive them in a suitable way, and at suitable times and places. If he has an office or station, he must have proper persons there, and proper means of security. During the transit, and at all stopping- places, due care must be taken of all goods, and that means the kind and measure of care appropriate for goods of that descrip- tion. If he have notice, by writing on the article or otherwise, of the need of peculiar care, — as, " Glass, with great care," or " This side uppermost," or " To be kept dry," — he is bound to comply with such directions, supposing them not to impose unnecessary care or labor. If he carry passengers he must receive all who offer, unless he has some special and sufficient reason for refusing. In a case tried before the Supreme Judicial Court of Massa- chusetts, it was held that if an inn-keeper, who has frequently entered a railroad depot and annoyed passengers by soliciting them to go to his inn, receives notice from the superintendent of the depot that he must do so no more, and he nevertheless repeatedly enters the depot for the same purpose, and after- wards obtains a ticket for a passage in the cars, with an actual intention of entering the cars as a passenger, and goes into the depot on his way to the cars, and the superintendent, believing OBLIGA TION OF THE COMMON CARRIER. 275 that he has entered the depot to solicit passengers, orders him to go out, and he does not exhibit his ticket, nor give notice of his real intention, but presses for\yard towards the cars, and the superintendent and his assistants therefore forcibly remove him from the depot, using no more force than is necessary for that purpose, such removal is justifiable, and not an indictable assault and battery. A common carrier is bound to carry his passengers over the whole route, and at a proper speed, or supply proper means of transport ; to demand only a reasonable or usual compensation ; to notify his- passengers of any peculiar dangers ; to treat all alike, unless there be actual and sufficient reason for the dis- tinction, as in the filthy appearance, dangerous condition, or misconduct of a passenger ; and to behave to all with civility and decorum. He must also have proper carriages, and keep them in good condition, and not overload them; and suitable horses and drivers ; stop at the usual places, with proper intervals for rest or food ; take the proper route ; and drive at proper speed ; and leave the passengers at the usual stopping-places, or wherever he agrees to. In none of these things can he depart from what is usual and proper at his own pleasure. And if by any breach of these duties a passenger is injured, the carrier is responsible. So if he puts his passengers in peril, and one of them be hurt by an effort to escape, as in jumping off, it is no defence for the carrier to show that he would have been safe if he had remained. In one case it was held that a common carrier who had received a pickpocket as a passenger on board his vessel, and taken his fare, could not put him on shore so long as he v/as not guilty of any impropriety. But this may be doubted. The common carrier must certainly employ competent and well- behaved persons for all duties, and for failure in any of the par- ticulars of his duties and obligations, he is responsible not only to the extent of any damage caused thereby, but also, in many cases, for pain and injury to the feelings. He is also bound to deliver to each passenger all his baggage at the end of his jour- ney, and is held liable if he delivers it to a wrong party on a forged order, and without personal default. 2/6 THE CARRIAGE OF GOODS AND PASSENGERS. Lastly, he must make due delivery of the goods at the proper time, in the proper way, and at the proper place, and to the proper person ; and this person should be some one who was authorized by the owner or sender to receive the goods. If a party authorized to receive the goods refuse, or is unable to do so, the carrier must keep them for the owner, and with due care ; but now under the liability of a warehouseman, and not of a carrier ; that is, he is now liable only for fault of some kind. So the carrier must keep the goods for the owner, if he has good reason to believe that the consignee is dishonest, and will defraud the owner of his property. As to the time when goods should be delivered, it must be within the proper hours for busi- ness, when they can be suitably stored ; or if the goods are deliv- ered to the sender himself, or at his house, then at some suitable and convenient hour. There must be no unnecessary delay, and the goods must be delivered as soon after a detention as may be with due diligence. As to the way and the place at which the goods should be delivered, much must depend upon the nature of the goods, and much also upon the usage in regard to them, if such usage exists. The goods should be so left, and with such notice, as to secure the early, convenient, and safe reception of them by the person entitled to have them. Something also must depend on this point, on the mode of conveyance. A man may carry a parcel into the house and deliver it to the owner or his servant; a wagon or cart can go to the gate, or into the yard, and there deliver what it carries. A vessel can go to one wharf or another, and is bound to go to that which is reasonably convenient to the consignee, or to one that was agreed upon ; but a vessel is not always bound to comply with requirements of the consignee as to the very wharf the goods should be left at, but may leave the goods at any safe, convenient, and accessible wharf at which such goods are usually left. Where the goods are not delivered to the owner personally, OBLIGATION OF THE COMMON CARRIER. 277 flff to his agent, immediate notice should be given to the owner. The carrier is generally obliged to give notice of the delivery of goods, and if the owner has in any way designated how the goods may be delivered to himself, he is bound to obey this direction. The notice must be prompt and distinct. And if the goods are delivered at an unsuitable or unauthorized place, no notice will make this a good delivery. Railroads terminate at their station, and although goods might be sent by wagons to the house or store of consignees, this is not usually done, as it is considered that the railroad carrier has finished his transit at his own terminus. Usually, the consignee of goods sent by railroad has notice from the consignor when to expect them ; and this is so common, that it is seldom necessary, in fact, for the agents of the railroad to give notice to the consignee. But this should be given where it is necessary; and should be given as promptly, directly, and specifically as may be necessary for the purpose of the notice. A railroad company may be compared to owners of ships in this respect, that neither can take the cars or the ships farther than the station or the wharf, and therefore may deliver the goods there. But a carrier by water is bound to give notice that the goods are on the wharf, and is not exonerated as carrier until he gives such notice ; whereas, a railroad company is not bound to give notice. It may happen that some third party may claim the goods under a title adverse to that of the consignor or consignee. If the carrier refuse to deliver them to this third party, and it turns out that the claimant had a legal right to demand them, the carrier would be liable in damages to him. But the carrier may and should demand full and clear evidence of the claimant's title ; and if the evidence be not satisfactory, he may demand security and indemnity. If the evidence or the indemnity be withheld, he certainly should not be held answerable for any- thing beyond that amount which the goods themselves would satisfy, for he is in no fault. If he delivers the goods to such claimant, proof that the claimant had good title is an adequate defence against any suit by the consignor or consignee for non- delivery. 278 THE CARRIAGE OF GOODS AND PASSENGERS. SECTION IV. THE LIEN OF THE COMMON CARRIER. The legal meaning of this word, as we have said before, when we have had occasion to use the word in preceding chap- ters, is the right of holding or detaining property until some charge against it, or some claim upon the owner on account of it is satisfied. The common carrier has this right against all the goods he carries, for his compensation. While he holds them for this purpose, he is not liable for loss or injury to them as a common carrier; that is, not unless the injury happen from his own fault. He may not only hold the goods for his compensation, but may recover this out of them, by any of the usual means in which a lien upon personal chattels is made productive. That is, he holds them just as if they were pledged to him by the owner as a security for the debt. Therefore, if the debt be not paid in a reasonable time after it is due and demanded, the carrier may have a decree of a court of equity for their sale ; or" may sell them himself at auction, retaining his pay from the proceeds, and paying over the remainder. But to make this course justifiable and safe, the carrier must wait a reasonable time, and give full notice of his intention, so that the owner may have a convenient opportunity to redeem the goads ; and there must be proper advertisement of the sale, and every usual precaution taken to insure a favorable sale; and the carrier must not himself buy the goods, and must act in all respects with entire honesty. SECTION V. THE LIABILITY OF THE COMMON CARRIER. This is perfectly well established as a rule of law, although it is very exceptional and peculiar. It is sometimes said to arise from the public carrier being a kind of public officer. But the true reason is the confidence which is necessarily reposed in him, the power he has over the goods intrusted to him, the ease with which he may defraud the owner of them, and yet make it LIABILITY OF THE COMMON CARRIER. 27Q appear that he was not in fault, and the difficulty which the owner might have in making out proof of his default. This reason it is important to remember, because it helps us to con- strue and apply the rules of law on this subject. Thus, the rule is that the common carrier is liable for any loss or injury to goods under his charge, unless it be caused by the act of God, or by the public enemy. The rule is intended to hold the com- mon carrier responsible wherever it was possible that he caused the loss, either by negligence or design. Hence, the act of God means some act in which neither the carrier himself, nor any other man, had any direct and immediate agency. If, for example, a house in which the goods are at night is struck by lightning, or blown over by a tempest, or washed away by inundation, the carrier is not liable. This is an act of God, although man's agency interferes in causing the loss ; for without that agency, the goods would not have been there. But no man could have directly caused the loss. On the other hand-, if the building was set on fire by an incendiary at midnight, and the rapid spread of the flames made it absolutely impossible to rescue the goods, this might be an inevitable accident if the carrier were wholly innocent, but it would also be possible that the incendiary was in collusion with the carrier for the purpose of concealing his theft ; and there- fore the carrier would be liable for such a loss, however innocent. As a general rule, the common carrier is always liable for loss by fire, unless it is caused by lightning, an accidental fire not being considered an act of God, or a peril of the sea ; and this rule has been applied to steamboats and other vessels. So, it may be true that after the lightning, the tempest, or inunda- tion, the carrier was negligent, and so lost the goods which might have been saved by proper efforts, or that he took the opportunity to steal them. If this could be shown, the carrier would-, of course, be liable ; but the law will not suppose this without proof, if the first and main cause were such that the carrier cotild not have been guilty in respect to it. So, a com- mon carrier would be liable for a loss caused by a robbery, however sudden, unexpected, and irresistible, or by a theft, 28o THE CARRIAGE OF GOODS AND PASSENGERS. however wise and full his precautions, and however subtle and ingenious the theft, although either of these might seem to be unavoidable by any means of safety which it would be at all reasonable to require. The general principles of agency extend to common carriers, and make them liable for the acts of their agents, done while in the discharge of the agency or employment. So, the knowledge of his agent is the knowledge of the carrier, if the agent be authorized expressly, or by the nature of his employment, to receive this notice or knowledge. But an agent for a common carrier may act for himself, — as a stage-coachman in carrying parcels, for which he is paid personally and does not account with his employer, — and then the employer, as we have said, is not liable, unless the owner of the- goods believed the stage- coachman carried the goods for his employer, and was justified by the facts and apparent circumstances in so believing. A carrier may be liable beyond his own route. It is very common for carriers, who share between theni the parts of a long route, to unite in the business and the profits, and then all are liable for a loss on any part of the route. .If they are not so united in fact, but say they are so, or say what indicates that they are so, they justify a sender in sup- posing they are united, and then they are equally liable. If a carrier takes goods to carry only as far as he goes, and then engages to send them forward by another carrier, he is liable as carrier to the end of his own route ; he is liable also if he neglects to send the goods on ; but he is not liable for what may happen to them afterwards. SECTION VI. THE CARRIER OF PASSENGERS. The carriers of passengers are under a more limited liability than the carriers of goods. This is now well settled. The reason is, that they have not the same control over passengers as over goods ; cannot fasten them down, and use other means of securing them. But while the liability of the carrier of passengers is thus mitigated, it is still stringent and extreme. NOTICE BY CARRIER RESPECTING LIABILITY. 281 No proof of care will excuse the carrier if he loses goods com- mitted to him. But proof of the utmost care will excuse him for injury done to passengers; for the carrier of passengers is liable for injury to them, unless he can show that he took all possible care, — giving always a reasonable construction to this phrase ; and in the case of railroad companies there is authority for using the words in almost their literal meaning ; that is, for holding them liable for all injury to passengers which could have been possibly avoided. SECTION VII. A NOTICE BY THE CARRIER, RESPECTING HIS LIABILITY. The common carrier has a right to make a special agree- ment with the senders of goods, which shall materially modify, or even wholly prevent, his liability for accidental loss or injury to the goods. The question is. What constitutes such a bargain .' A mere notice that the carrier is not responsible, or his refusal to be responsible, although brought home to the knowledge of the other party, does not necessarily constitute an agreement. The reason is this. The sender has a right to insist upon sending his goods, and the passenger has a right to insist upon going himself with customary baggage, leaving the carrier to his legal responsibility ; and the carrier is bound to take them on these terms. If, therefore, the sender or the passenger, after receiving such notice, only sends or goes in silence, and with- out expressing any assent, especially if the notice be given at such time, or under such circumstances, as would make it inconvenient for the sender not to send, or for the passenger not to go, then the law will not presume from his sending or going an assent to the carrier's terms. But the assent may be expressed by words, or made mani- fest by acts ; and it is in each case a question of evidence for the jury whether there was such an agreement. But a notice by the carrier, which only limits and defines his liability to a reasonable extent, without taking it away, as one which states what kind of goods he will carry, and what he will not ; or to what amount only he will be liable for passen- 28 i THE CARRIAGE OF GOODS AiXD PASSENGERS. gers' baggage, without special notice ; or what information he will require, if certain articles, as jewels or gold, are carried; or what increased rates must be paid for such things, — any notice of this kind, if in itself reasonable and just, will bind the party receiving it. No party will be affected by any notice, — neither the carrier, nor a sender of goods, nor a passenger, — unless a knowledge of it can be brought home to him. In a case in Pennsylvania, where the notice was in the English language, and the passenger was a German, who did not understand English, it was held that the carrier must prove that the passenger had actual knowledge of the limitation in the notice. But the knowledge may be brought home to him by indirect evidence. As by showing that it was stated on a receipt given to him, or on a ticket sold him, or in a newspaper which he read, or even that it was a matter of usage, and generally known. This question is one of fact, which the jury will determine upon all the evidence, under the direction of the court. And if the notice is ambiguous, they will be directed to give it the mean- ing which is against the carrier, because it was his business to make it plain and certain. Any fraud towards the carrier, as a fraudulent disregard of a notice, or an effort to cast on him a responsibility he is not obliged to assume, or to make his liability seem to be greater than it really is, will extinguish the liability of the carrier so far as it is affected by such a fraud. If a carrier gives notice which he is authorized to give, the party receiving it is bound by it, and the carrier is under no obligation to make a special inquiry or investigation to see that the notice is complied with, but may assum^'that this is done. It should, however, be remarked that such notice affects the liability of the common carrier only so far as it is peculiar to him, that is, his liability for a loss whic^ occurs without his agency or fault ; for he is just as liable as he would be without any notice, for a loss or injury caused by his own negligence or default. Perhaps a common carrier might make a valid bargain which would protect him against every thing but his own wilful or CARRIER'S LIABILITY FOR GOODS OF PASSEIVGERS. 283 fraudulent misconduct. But no bargain could be made to pro. tect him against this. SECTION VIII. THE carrier's liability for goods carried by passengers. A CARRIER of goods knows what goods, or rather what parcels and packages, he receives and is responsible for. A carrier of passengers is responsible for the goods they carry with them as baggage ; what that is, the carreer does not always know ; and he is responsible only to the extent of what might be fairly and naturally carried as baggage. This must always be a question of fact, to be settled as such by the jury, upon all the evidence, and under the direction of the court. But there can be no precise and definite standard. A traveller oij a long journey needs more money and more baggage than on a short one ; one going to some places and for some purposes needs more than one going to other places or for other pur- poses. Thus in New York it was decided that baggage does not properly include money in a trunk, or any articles usually carried about the person. And in another New York case, it was held that, where the baggage of a passenger consists of an ordinary travelling-trunk, in which there is a large sum of money, such money is not considered as included under the term baggage, so as to render the carrier responsible for it. But generally a passenger may carry as baggage, money not exceeding an amount ordinarily carried for travelling-expenses. So in Massachusetts it was held that common carriers are responsible for money bond fide included in the baggage of a passenger, for travelling-expenses and personal use, to an amount not exceeding what a prudent person would deem proper and necessary for the purpose. In Pennsylvania, carriers have been held responsible for ladies' trunks containing apparel and jewels. And in Illinois, a common carrier of passengers has been held liable for the loss of a pocket-pistol, and a pair of duelling-pistols, contained in the carpet-bag of a passenger, which was stolen out of the possession of the carrier. But in Tennessee, it has been held 284 THE CARRIAGE OF GOODS AND PASSENGERS. that "a silver watch, worth about thirty-five dollars, also medicines, handcuffs, locks, &c., worth about twenty dollars," were not included in the term baggage, and that the carrier was not responsible for their loss. In Ohio, it has been held that a gold watch, of the value of ninety-five dollars, was a part of the traveller's baggage, and his trunk a proper place to carry it in. In another New York case it has been held that the owners of steamboats were liable as common carriers for the baggage of passengers ; but, to subject them to damages for loss thereof, it must be strictly baggage ; that is, such articles of necessity and personal convenience as are usually carried by travelers. And it was accordingly held, in that case, that the carrier was not liable for the loss of a trunk containing valuable merchan- dise and nothing else, although it did not appear that the plain- tiff had any other trunk with him. But in a case in Pennsylva- nia, where the plaintiff was a carpenter moving to the State of Ohio, and his trunk contained carpenters' tools to the value of fifty-five dollars, which the jury found to be the reasonable tools of a carpenter, it was held that he was entitled to recover for them as baggage. There is some diversity, and perhaps some uncertainty, in the application of the rule ; but the rule itself is well settled, and a reasonable construction and application of it must always be made ; and, for this purpose, the passenger himself, and all the circumstances of the case, must be considered. The purpose of the rule is to prevent the carrier from becoming liable by the fraud of the passenger, or by conduct which would have the effect of fraud ; for this would be the case if a passenger should carry merchandise byway of baggage, and thus make the carrier of passengers a carrier of goods without knowing it and without being paid for it. Generally, a common carrier of passengers, by stage, packet, steamer, or cars, carries the moderate and reasonable baggage of a passenger, without being paid specifically for it. But the law considers a payment for this so far included in the payment of the fare, as to form a sufficient ground for the carrier's liability to the extent above stated. The carrier is only liable for the goods or baggage delivered CARRIER'S LIABILITY FOR GOODS OF PASSENGERS. 285 to him and placed under his care. Hence, if a sender of goods send his own servant with them, and intrust them to him and not to the carrier, the carrier is not responsible. So, if a pas- senger keeps his baggage, or any part of it, on his person, or in his own hands, or within his own sight and immediate control, instead of delivering it to the carrier or his servants, the carrier is not liable, as carrier, for any loss or injury which may happen to it ; that is, not without actual default in the matter. Thus, in an action brought in New York to charge a railroad company, as common carriers, for the loss of an overcoat belonging to a passenger, it appeared that the coat was not delivered to the defendants, but that the passenger, having placed it on the seat of the car in which he sat, forgot to take it with him when he left, and it was afterwards stolen ; and it was held that the defendants were not liable. But if the baggage, of a passenger is delivered to a common carrier, or his servant, he is liable for it in the same way, and to the same extent, as he is for goods which he carries. In this country the rules of evidence permit the traveller to maintain his action against the carrier by proving, by his own testimony, the contents of a lost trunk or box, and their value. And the testimony of the wife of the owner is similarly admissi- ble. But it is always limited to such things — in quantity, quality, kind, and value — as might reasonably be supposed to be carried in such a trunk or valise. The rule, with this limitation, seems reasonable and safe, and is quite generally adopted. In Massa- chusetts it was distinctly denied by the Supreme Court, but was afterwards established by statute. The common carrier of goods or of passengers is liable to third parties for any injury done to them by the negligence or default of the carrier, or of his servants. And it would seem that he is liable even for the wilful wrong-doing of his servants, if it was committed while in his employ, and in the management of the conveyance under his control, although the wrong was done in direct opposition to his express commands. So he is for injury to property by the wayside, caused by his fault. But the negligence of the party suffering the injury, if it was mate- rial and contributed to the injury, is a good defence for the carrier, unless maHce on the carrier's part can be shown. 286 THE CARRIAGE OF GOODS AND PASSENGERS. Where the party injured is in fault, the common carrier has still been held liable, if that fault was made possible and injurious through the fault of the carrier. If passengers are carried gratuitously, that is, without pay, the common carrier is still liable for injury caused by his negligence. Whether a railroad company is responsible for fire set to buildings or property along the road, without negligence on its part, has been much considered in this country. In some of our States they are made so liable by statute provision. And this fact, together with the general principles of liability for injury done, would seem to lead to the conclusion that they are not liable, unless in fault, or unless made so by statute. (89.) Steam Packet Company. Makks and Numbers. Received from the following articles, being marked and numbered as in the margin, in apparent good order, the con- tents and value unknown, to be transported from to on one of the company's steamers, and to be delivered on their wharf in , in like good order and condition, the dangers of the sea, of fire on board or on wharf, collision, and all other accidents excepted. Dated at g C For the company. The following form will show the terms and conditions on which our express companies carry their freight. This paper, given and received, constitutes a contract. Duplicate. (90.) •Express Company. fast freight line. i8 Received from the following packages, in apparent good order, contents and value unknown : FORMS OF COMMON CARRIER'S RECEIPTS. 287 Express Company. Advanced Charges, $ RATES. Marked and numbered as in the margin, D'ble 1st Class cts. per 100 ibs. to be forwarded by railroad and delivered at upon payment of freight therefor, 1st Class cents per 100 lbs. as noted in the margin, subject to the condi- tions and rules on the back hereof, and 2d Class cents per 100 lbs. those of the several railroads over which the property is transported, which consti- 3d Class cents per 100 lbs. tute a part of this contract. 4th Class cents per 100 lbs. A<'ent. As per Classification on back. On the back of this receipt is a minute and very full classi- fication of all articles likely to be offered for transportation, followed by the Conditions and Rules. The destination, name of the consignee, and weight of all articles of freight, must be plainly and distinctly marked, or no responsibility will ba taken for their miscarriage or loss ; and when designed to be forwarded, aftei transportation on the route, a written order must be given, with the particu- lar line of conveyance marked on the goods, if any such be preferred oJ desired. The companies will not hold themselves liable for the safe carriage or custody of any articles of freight, unless receipted for by an authorized agent ; and no agent of the line is authorized to receive, or agree to transport, any freight, which is not thus receipted for. No responsibility will be admitted, under any circumstances, to a greater amount upon any single article of freight than $200, unless upon notice given of such amount, and a special agreement therefor. Specie, drafts, bank- bills, and other articles of great intrinsic or representative value, will only be taken upon a representation of their value, and by a special agreement assented to by the superintendent of the receiving road. The companies will not hold themselves liable at all for injuries to any articles of freight during the course of transportation, arising from the weather, or accidental delays, or natural tendency to decay. Nor will their guaranty of special despatch cover cases of unavoidable or extraordinary • casualties, or storms, or delays occasioned by low water and ice ; and may be stored at the risk and expense of the owner. Nor will they hold themselves liable, as common carriers, for such articles, after their arrival at their place of destination at the company's warehouses or depots. Carriages and sleighs, eggs, furniture, looking-glasses, glass and crockery 288 HOTEL KEEPERS, INNKEEPERS, ETC. ware, machinery, mineral acids, piano-fortes, stoves and castings, sweet potatoes, wrought marble, all liquids put up in glass or earthen ware, fruit, and live animals, will only be taken at the owner's risk of fracture or injury during the course of transportation, loading and unloading, unless specially agreed to the contrary. Gunpowder, friction matches, and like combustibles, will not be received on any terms ; and all persons procuring the reception of such freight by fraud or concealment, will be held responsible for any damage which may arise from it while in the custody of the company. It is further stipulated and agreed, that goods shipped to points west of shall be subject to a change in classification and cor- responding change of rates beyond those points. Cases or packages of boots and shoes, and of other articles liable to peculation or fraudulent abstraction, must be strapped with iron or wood, or otherwise securely protected, or the companies will not be liable for diminu- tion of the original contents, and the companies will hold the freighter, in all cases, to bear the loss arising from improper packing. It is also agreed between the parties that the said companies, and the railroads and steamboats with which they connect, shall not be held account- able for any deficiency in packages if receipted for to them in good order. All articles of freight arriving at their places of destination must be taken away within twenty-four hours after being unladen from the cars, — each com- pany reserving the right of charging storage on the same, or placing the same in store at the risk and expense of the owner, if they see fit, after lapse of that time. CHAPTER XXI. HOTEL KEEPERS, INNKEEPERS, AND BOARDING-HOUSE KEEPERS. Hotel keepers and innkeepers are, in law, the same. An inn has been judicially defined as a house where the traveller is provided with everything which he has occasion for while on his way. There need not be a sign to make it an inn. A coffee- house or eating-room is not an inn, nor is a boarding-house. An innkeeper has a lien upon all the goods of a guest, for the price of his entertainment, or that of his servants and horses. This lien covers the goods brought to him by a guest, though they belong to another person. Thus he has a lien on a stolen horse which the thief brings to him. But he has no lien on the clothes or goods which a guest actually has upon his person. HOTEL KEEPERS, INNKEEPERS, ETC. 289 He must receive every guest who offers, unless his house is full, or there is good reason to believe that the guest will be disorderly. A guest has a right to reasonable accommodations, but not to choose his apartment, or use it for other purposes than those for which it was designated. Public policy imposes upon an innkeeper a severe liability. In strict law, he is an insurer of the property committed to his care, against every- thing but the act of God, the public enemy, or the fraud or neglect of the guest. But there seems to be of late some disposition in the courts to hold him thus liable only where there has been some kind or measure of negligence on his part. A boarder at a boarding-house neither holds the keeper of the house to this liability, nor has the keeper a lien on the boarder's goods. It is sometimes difficult to say whether a person in the house is a guest at an inn, or a boarder. From all the cases we infer this distinction : A boarder is one who makes a bargain for a certain time. A guest comes and goes when he likes, paying only for what he receives. Though he stays a long time at an inn or hotel, without any bargain on time, he is still a guest ; holding the keeper of the inn to his liability, and having his goods under a lien to the keeper. But, if he makes a bargain on time, he becomes a boarder, and the liability and lien of the keeper cease. It is a good defence by an innkeeper against his liability for a loss, that it was caused by a servant of the owner, or by one who came with him as his companion, or by the owner's own fault. It is also a good defence if the owner retained, personally and exclusively, the custody and care of the goods ; but it is not enough to make this defence sufficient, that the owner exercised some choice as to where his goods should be placed, nor that the Itey of the room was given him. But an innkeeper may require of his guest to place his goods in a particular place, under lock and key ; or to give notice to guests that he will not be responsible for money, or especially valuable goods, unless placed in the innkeeper's safe. If such precautions are reasonable, and the guest neglects them, the innkeeper is not liable. Some articles of this kind a guest needs to have within his immediate reach ; and such things he need not deposit in 19 290 LIMITATIONS. the safe, and the innkeeper would be liable if they were lost without the guest's own fault. The innkeeper is liable for the loss of the goods while fairly in his custody, though not specially delivered to him : as if lost while the innkeeper's servant was carrying them to an inn, or from the inn to the cars, or in a hack in which the innkeeper undertook to carry the guest " free" from a station to his inn. Some cases hold that the innkeeper is liable for the loss of goods placed in an inn although the owner does not himself lodge or eat there. But other cases, and we think with better reason, hold that the innkeeper is liable only for the goods when the owner comes and stays with them. He is not liable per- manently for goods left by a guest who has gone away. He would, however, still be held liable for them for a reasonable time, which, in one case, was said to extend over " some days." For a guest may leave for a reasonable time, — which must not be long, — with the purpose of return ; and while he is absent his goods are under the same responsibility of the innkeeper as if the owner were in the house. If a horse or carriage is put into a distant barn, or a horse into a pasture, by the innkeeper, without the knowledge or con- sent of the owner, the innkeeper is liable for their loss. We hold that a boarding-house keeper is liable for loss caused by the negligence of his or her servants, as he or she is for his or her own; but not, like an innkeeper, for a loss without negligence. CHAPTER XXn. LIMITATIONS. SECTION I. THE STATUTES OF LIMITATIONS. All of our States have what are called Statutes of Lim.ita- tions. They are not the same everywhere ; but they provide different periods of time within which the actions specified in CONSTRUCTION OF THE STA TUTE. 291 the Statutes must be brought. These periods vary from twenty years to one. Generally, they are longer for real actions, or for actions on judgments or on contracts under seal, and shorter for simple contracts of various kinds. An abstract of these statutory provisions in all the States is given at the close of this chapter. All actions of account, and all which can be brought for indebtedness or damages, and all actions of debt grounded upon any lending, or contract without seal, and all actions for arrearages of rent, shall be commenced and sued within six years next after the cause of such actions or suit arises, and not after. In few words, all claims which do not rest on a seal or a judgment must be sued within six years from the time when they arise. In some States, a statute provides, in substance, that, if a debt or promise be once barred by the Statute of Limitations, no acknowledgment of the debt or new promise shall renew the debt, ard take away the effect of the statute, unless the new promise is in writing, and is signed by the party who makes the promise. But this statute expressly permits a part-payment either of principal or interest of the old debt to have the same effect as a new promise. And this statute also provides, that if there be joint contractors or debtors, and a plaintiff is barred by the statute against both, but the bar of the statute is removed as to one by a new promise or otherwise, the plaintiff may have judgment against this one, but not against the ether. Such statutes have been passed in Maine, Massachusetts, Vermont, New York, Indiana, Michigan, Arkansas, and Cali- fornia. SECTION 11. CONSTRUCTION OF THE STATUTE. For the law of limitation there is a twofold foundation : in the first place, the actual probabihty that a debt which has not been claimed for a long time was paid, and that this is the reason of the silence of the creditor. But, besides this reason, there is the inexpediency and injustice of permitting a stale and neglected claim or debt, even if it has not been paid, to be set up and enforced after a long silence and acquiescence. 293 LI MIT A TIOA'S. Before inquiring into the rules of law which now apply to the case df an acknowledgment or new promise, it should be remarked that a prescription, or limitation, of common law, much more ancient than the statutes above quoted, is still in force. This is the presumption of payment after twenty years, which is applicable to all debts ; not only the simple contracts to which the Statutes of Limitation refer, that is, contracts which are merely oral, or which if written have no sea^ but to specialties, or contracts or debts under seal or by judgment of court. Of these it will not be necessary to speak here, except- ing to remark, that in a few of our States the Statute of Limi- tation excepts a promissory note which is signed in the presence of an attesting witness, and is put in suit by the original payee, or his executor or administrator ; such a note in those States, as in Maine and Massachusetts, may be sued any time within twenty years after it is due. Bank-bills and other evidences of debt issued by banks, are everywhere excepted from the operation of the statute. SECTION III. THE NEW PROMISE. What is the new promise which suffices to take a case out of the statute.'' A mere acknowledgment, which does not con- tain, by any reasonable implication or construction, a new promise, is not sufficient, and still less so if it expressly excludes a new promise. In the leading American case upon this point, before the Supreme Court of the United States, it was proved, in answer to the plea of the Statute of Limitations, that the defendant, one of the partners of a firm then dissolved, said to the plaintiff, " I know we are owing you ; " "I am getting old, and I wish to have the business settled :" it was held that these expressions were insufficient to revive the debt. So, in New Hampshire, in an action on a promissory note, the defend- ant, on being asked to pay the note, said "he guessed the note was outlawed, but that would make no difference, he was willing to pay his honest debts, always." As he did not state in direct terms that he was willing to pay the note, this was held not sufficient to revive the debt. A new promise is not now implied by the law itself, from a mere acknowledgment. PART-PA YMENT. 293 The new promise need not define the amount of the debt. That can be done by other evidence, if only the existence of the debt and the purf)ose of paying it are acknowledged. Still, the new promise must be of the specific debt, or must distinctly include it ; for if wholly general and undefined, it is not enough. A testator who provides for the payment of his debts, gen- erally, does not thereby make a new promise as to any one of them. If the new promise is conditional, the party relying upon it must be prepared to show that the condition has been fulfilled. Thus, if the new promise be to pay "when I am able," the prom- isee must prove not only the promise, but that the promisor is able to pay the debt. As the acknowledgment should be voluntary, it follows that one made under process of law, as by a bankrupt, or by answers to interrogatories which could not be avoided, should never have the effect of a new promise. SECTION IV. PART-PAYMENT. A PART-PAYMENT of a debt is such a recognition of it as implies a new promise, even if it was made in goods or chattels, if they were offered as payment, and agreed to be received as payment, or by negotiable promissory note or bill. Thus, in a case where one was sued for money due for a quantity of hay, and pleaded that it had been due more than six years, which was a good defence, the plaintiff proved in reply that defendant had given him within six years a gallon of gin as part-payment for his debt, and it was held that this took the case out of the Statute of Limitations, and the plaintiff recovered. But a pay- ment has this effect only when the payment is made as of a part of a debt. If it is made in settlement of the whole, of course it is no promise of more. And a bare payment, without words or acts to indicate its character, would not be construed as car- rying with it an acknowledgment that more was due and would be paid. If a debtor owes several debts, and pays a sum of money, 294 LIMIT A TIONS. he has the right of appropriating that money to one debt or another as he pleases. If he pays it without indicating his own appropriation, the general rule is, that the creditor who receives the money may appropriate it as he will. There is, however, this exception. If there be two or more debts, some of which are barred by the statute, and others are not barred by it, the creditor cannot appropriate the payment to a debt that is barred, for the purpose of taking it out of the statute by such part- payment. SECTION V. THE STATUTORY EXCEPTIONS. As persons may have a right of action without being able to begin the action within the period required by the statutes, because they are disabled by infancy, or by absence from the State, or by unsoundness of mind, or imprisonment, or in some States by being a married woman, it is generally provided in the statutes that the limitations there prescribed do not apply to persons so disabled. The more common of these disabilities and the most universal in our State laws, are infancy and absence from the State. But these disabilities must exist when the cause of action arises to prevent the statutes of limita- tion from applying. And after the disabilities are removed, the persons who have been disabled may bring their action within certain periods of time. These periods are stated in the abstract of the Statutes of Limitation at the close of this chapter. The effect of these is, that the disability must exist when the debt accrued ; and then, so long as the disability continues to exist, the statute does not take effect. But it is a general rule, that, if the six years begin to run, they go on without any interruption or suspension from any subsequent disability. Thus, if a creditor be of sound mind, or a debtor be at home when the debt accrues, and one month afterwards the creditor becomes insane, or the debtor leaves the country, nevertheless the six years go on, and after the end of that time no action can be commenced for the debt. Or if the disability exists when the debt accrues, and some months afterwards ceases. WHEN THE PERIOD OF LIMITA TIOJV BEGINS. oQ? SO that the six years begin to run when it ceases, and after- wards the disability comes a^ain, it does not interrupt the six years. If, when a debt is due, the debtor is out of the State, the six years do not begin to run. If afterwards he returns to the State, they then begin to run, and, having begun, they continue to run, although he goes out of the State again, and returns no more. In this country, a rational construction has been given to the disability of being out of the State, and its removal ; and it is not understood to be terminated merely by a return of the debtor for a few days, if .during those days he was not within reach. If, however, the creditor knew that he had returned, or might have known it by the exercise of reasonable care and diligence, soon enough to have profited by it, this, removal of the disability bring the statute into operation, although the return was for a short time only. SECTION VI. WHEN THE PERIOD OF LIMITATION BEGINS. It is sometimes a question from what point of time the six years are to be counted. And the general rule is, that they begin when the action might have been commenced. If a credit is given, this period does not begin until the credit has expired. If a note on time be given, the six years do not begin until the time has expired, including the additional three days' grace; if a bill of exchange be given, payable at sight, then the six years begin after presentment and demand ; but if a note be pay- able on demand, or money is payable on demand, then the limi- tation begins at once, because there may be an action at once. If there can be no action until a previous demand, the limitation begins as soon as the demand is made. If money be payable on the happening of any event, then the limitation begins after that event has happened. If several successive credits are given, as if a note is given which is to be renewed ; or if a credit is given, and then a note is to be given ; or if the credit is longer or shorter, at the purchaser's option, as if it be agreed that a note 296 LIMITA TIONS. shall be given at two or four months, then the six years begin when the whole credit or the longer credit has expired. SECTION VII. THE STATUTE DOES NOT AFFECT COLLATERAL SECURITY. It is important to remember that the Statute of Limitations does not avoid or cancel the debt, but only provides that " no action shall be maintained upon it" after a given time. There- fore, it' does not follow that no right can be sustained by the debt, although the debt cannot be sued. Thus, if one who holds a common note of hand on which there is a mortgage or pledge of real or of personal property, without valid excuse neglects to sue the note for more than six years, he can never bring an action upon that note ; but the pledge or mortgage is as valid and effectual as it was before ; and, as far as it goes, his debt is secure ; and for the purpose of realizing this security, by fore- closing a mortgage, for example, he may have whatever process is necessary, although he cannot sue the note itself. And the debtor cannot redeem the property pledged or mortgaged except by payment of the debt. ABSTRACT OF THE STATUTES OF LIMITATIONS OF ALL THE STATES. ALABAMA. — Judgments of courts of records, twenty years. Actions to recover real property, contracts or writings under seal, actions against sheriffs, coroners, constables, and other public officers, for malfeasance in office, ten years. Trespass to real or personal property, detinue, trover, all promises and writings not under seal, actions on an account stated, actions for the use and occupation of land, actions against sureties of public officers, and sureties of executors, administrators, and guardians, and judg- ments of justices of the peace, six years. Actions to recover money due on open and unliquidated account, the time of accrual of the right of action to be computed from the date of the last item, three years. Assault and battery, false imprisonment, malicious prosecutions, criminal conversation, seduction, breach of promise, and libel and slander, actions against steam- boats begun by attachment, one year. AEEABTSAS. — Actions to recover real property, seven years. But persons under legal disabilities may bring their action within three years after the removal of such disability. Judgments, ten years. Actions on bonds of executors and administrators, eight years. On official bonds of ABSTRA CT OF ST A TUTES OF LIMITA TIONS. 297 sheriffs, coroners, and constables, four years. Promissory notes and other instruments in writing, five years. Contracts not in writing, trespass on lands, trover, three years. Actions against sheriffs and coroners except for escape, two years. Actions for crim. con., assault and battery, false imprisonment, slander, actions against sheriffs for escape, one year. In all cases except actions to recover real property, the limitation in regard to persons under disabilities begins to run from the removal of the same. In actions on an account current, the cause of action accrues from the last item proved in the account. Any new promise must be in writing, and signed by the party to be charged. Actions which survive may be brought by and against executors and administrators within one year from the death of the party, or the granting letters testamentary or of administration. Any action failing for any cause not affecting the right of action may be recommenced within one year year after such failure. CALIFORITIA. — Actions to recover real property. Jive years. But persons under legal disabilities may begin such action within five years after the removal of such disability. Judgments of courts of record, five years. On contracts, obligations or liabilities in writing, four years. Actions on statute liabilities, other than penalties and forfeitures, trespass on real estate, trover, detinue, and replevin, actions in case of fraud, the time beginning to run from discovery of the same, three years. Contracts not in writing, actions against sheriffs, coroners, and constables, for acts done in official capacity, except for escapes, two years. Actions for statute penalties or forfeitures, libel, slander, assault, battery, false imprisonment; actions against sheriffs and constables for escapes, one year. In actions on mutual, open, and current accounts, the cause of action is deemed to have accrued from the last item proved on either side. The time of Hmitation is not to run against persons out of the State. The limitation in case of per- sons under disabilities begins to run from the removal of the same. Actions by representatives within six months from death of creditor, actions against the same within six months after granting letters testamentary or of admin- istration. Disabilities must exist at the time of the accrual of right. CODTNECTICUT. — Actions to recover real property, fifteen years. But persons under legal disabilities may bring such action within five years after removal of the disability. Suits on specialties and promissory notes not negotiable, seventeen years; and persons under disabilities, within four years after removal of the same. Actions on all simple contracts, book debts, debt on simple contract, contracts in writing not under seal, except notes not negotiable, six years. Persons under disabilities three years after removal of the same. In cases of settlement of partnership, or joint occupancy of real or personal estate or joint accounts, courts will take into consideration all the joint transactions since the time of the last settlement, though more than six years have elapsed since said settlement. Trespass on the case, six years. Except the cases mentioned above, an action founded on any express contract or agreement not reduced to writing, or of 298 LIMITA TIOKS. which there is some memorandum, an action o£ trespass, or slander, must be brought within three yeais. Scire facias against garnishee, one year. Suits against railroad companies for damages for loss of life, eighteen months after death. Any action properly begun, and failing for a cause not affecting the right of action, may be recommenced within one year 2iit!tx such failure, except actions against executors and administrators, which may be begun again within six months. When cause of action is fraudulently con- cealed, the limitation shall begin to run from discovery of the right of action by the person entitled. COLORADO.— (Revision of 1S68 and year books to 1S74.) Actions to recover real ^ro'^&xX.y, five years. Contracts, waste, trespass on real estate, replevin, trover, and detinue, and actions on the case, except libel and slander, six years. Assault and battery, f ilse imprisonment, slander and libel, one year. Actions against sheriffs and coroners as such, except for escape, one year. Actions against sheriffs for escape, six months. Limita- tions in case of persons under disabilities begin to run from the time of removal of the same. DACOTA. — Actions to recover real property, twenty years j but persons tmder legal disabilities may begin such actions within ten years zivcx rt.xnov2\. of the same. Judgments and sealed instruments, twenty years. Contracts other than above, trespass on real estate, trover, detinue, and replevin, statute liabiUties other than for forfeitures and penalties, six years. Actions against sheriffs, coroners, and constables as such, except for escapes, tliree years. Libel, slander, assault, battery, false imprisonment, two years. Against sheriffs, etc., for escapes, one year. In actions on mutual, open, and current accounts, the cause of action is deemed to have accrued from the date of the last item proved. Persons under disabilities, except infants, may bring action within one year after removal of the same, provided the time is not extended more than five 3'ears, and infants may bring their action within o«£_j'^^r after attaining their majority. A new action may be begun within one year after the reversal of judgment in the old case. Any new promise must be in writing, in order to take the case out of tlie statute. DELAWARE. — Real actions, twenty years ; but persons under disabih- ties may bring a real action within ten years from removal of the same. On official bonds of sheriffs, executors, and administrators, six years. On guardian's bonds, three years from determination of guardianship. Trespass, replevin, detinue, debt other than specialty, account, assumpsit and case, three years. In mutual and running accounts, the limitation does not begin to run while the account is open. Promissory notes, bills, and acknowledg- ments in wnting, six years. Waste, th?-ee years. Persons under disabili- ties may begin personal actions within three years after removal of disability. FLORIDA. — Real actions, seven years. Judgments and writings under seal, twenty years. Writings not under seal, fi%)e years. Statute liabilities other than penalties and forfeitures, trespass on real property, trover, detinue, and replevin, and contracts not in writing, three years. Statute penalties and ABSTRACT OF STATUTES OF LIMITATIONS. 299 forfeitures, libel, slander, assault, battery, false imprisonment, and actions on open accounts, two years. In actions to recover a balance due dn mutual, open and current accounts, the cause of action is deemed to have atcrued from the date of the last item proved on either side. Mew promise must be in writing. GEORGIA. — Actions to recover real property, twenty years j foreign \Oi&.^cs\tvA&, five years J domestic judgments, seven years. Sealed instruments, twenty years ; statutory rights, twenty years ; contracts in writing, includ- ing bills and not'&%, six years j open accounts and contracts not in writing, four years ; other actions ex contractu, four years. Limitations in case of persons under disabilities begin to run from the removal of the same. Any new promise must be in writing. Trespass on realty, four years ; on personalty, four years ; injuries to person, except libel and slander, two years; libel and slander, one year. ILLINOIS. — Actions to recover real property, twenty years. Bonds, promissory notes, bills, written leases, written contracts, and other indebted- ness in writing, ten years. Unwritten contracts, damages to real or personal property, detinue, and trov&r, five years. Injuries to person, fal.^e imprison- ment, malicious prosecution, statutory penalties, abduction, ard seduction, two years. Slander and libel, one year. Actions by representatives of deceased persons, one year from death ; against the same, one year from« issuing letters testamentary or of administration. Persons under disabili- ties may bring personal actions within two years from the remov.il of the same. If any person liable to an action conceals the same, action may be begun within five years after the discovery. Any action defeated for any cause not affecting the right of action, may be begun again within one year from such defeat. New promise must be in writing. INDIANA. — Real actions, judgments of a court of record and contracts in writing, twenty years. Accounts and contracts not in writing ; use, rents and profits of real estate, injuries to property, trover, replevin, and for relief against fraud, six years. Injuries to person or character, two years. In mutual, open and current accounts, the cause of action is deemed to have accrued from date of last item proved. Persons under disabilities at the time of accrual of right may bring their action within two years after removal. Actions by or against executors and administrators, eighteen months after death. An action failing for a cause not affectins; the right maybe recommenced within y?7/« j/^arj. New promise must be ia writing. IOWA. — ^Judgments of court of record, twenty years. Real actions, judgments other than of courts of record, and v/ri;ten contracts, ten years. Contracts not in writing, and injuries to property, five years. Actions against sheriffs and public officers, three years; injuries to person or reputa- tion, two years. In open accounts, the cause of action accrues from the date of the last item proved. Persons under disabilities may begin action within one year from the removal of the same. New promise must be in writing. 300 LI MIT A TIONS. KANSAS.— Real actions,^/^^«j/eizrjy but persons under disabilities may bring action within two years after removal. Contracts and agreements in writing, five years. Contracts not in writing, three years. Trespass on lands, trover, detinue, and replevin, two years. Libel, slander, assault, bat- tery, malicious prosecution, false imprisonment, one year. Actions on bonds of executors, administrators, guardians, and sheriffs,_;f7/^ years. Per- sons under disabilities may begin action witliin one year aiter removal thereof. After failure of an action for any cause not affecting the right of action, new action may be begun within one year. AcI6cj, ten years. Other con\.Ta.cts, five years. Current accounts, three years. Actions on recognizances, other than bail in a civil suit and judgments, ten years. Recognizance of bail in civil suit, three years. All other actions which 5Vir\'\yc, five years; which do not survive, one year. "WISCONSIN. — Real actions, twenty years ; persons under disabilities, five years after removal of the same. Judgments of courts of record cf the State of Wisconsin and sealed instruments, when the cause accrues within the State, twenty years. Judgments of other courts of record and sealed instruments accruing without the State, ten years. Other contracts, statute liabihties other than penalties and forfeitures, trespass on real property, trover, detinue, and replevin, six years. Actions against sheriffs, coroners, and constables for acts done in their official capacity, except for escapes, three years. Statutory penalties and forfeitures, libel, slander, assault, battery, and false imprisonment, two years. Actions against sheriffs, etc., for escapes, one year. Persons under disabilities, except infants, may bring action after the disability ceases, provided the period is not extended more 'Cn'a.vi five years, and infants one year ?Aifc coming of age. Actions by representatives of deceased persons, one year from death ; against the same, o}ie year from granting letters testamentary or of administration. New promise must be in writing. IVJfA T INTEREST IS, AND WHEN IT IS DUE. CHAPTER XXIII. INTEREST AND USURY. 307 SECTION I. WHAT INTEREST IS, AND WHEN IT IS DUE. Interest means a payment of money for the use of money. In most civilized countries the law regulates this ; that is, it declares how much money may b6 paid or received for the use df money ; and this is called legal interest ; and if more is paid or agreed to be paid than is thus allowed, it is called usurious interest. By interest is commonly meant legal interest ; and by usury, usurious interest. Interest may be due, and may be demanded by a creditor, on either of two grounds. One, a bargain to that effect ; the other, by way of damages for withholding money that is due. Indeed, it may be considered as now the settled rule, that wherever money is withheld which is certainly due, the debtor is to be regarded as having promised legal interest for the delay. And upon this implication, as on most others, the usage of trade, and the customary course of dealings between the parties, would have great influence. Thus, in New York, it was held, that, where it was known to one party that it was the uniform custom of the other to charge interest upon articles sold or manufactured by him after a certain time, the latter was allowed to chai^ge interest accord- ingly. In general, we may say that interest is allowed by law as fol- lows : on a debt due by judgment of court, it is allowed from the rendition of judgment; and on an account that has been liquidated, or settled, from the day of the liquidation ; for goods sold, from the time of the sale, if there be no credit, and if there be, then from the day when the credit expires ; for rent, from the time that it is due, and this even if the rent is payable other- wise than in money, but is not so paid ; for money paid for another or lent to another, from the payment or loan. 308 INTEREST AND USURY. Interest is not generally recoverable upon claims for unliqui- dated damages, nor in actions founded on tort. By tmliqin- dated damages is meant damages not agreed on, and of an uncertain amount, and which the jury must determine. By torts is meant wrongs, or injuries inflicted. But although inter- est cannot be given under that name, in actions of this sort, juries are sometimes at liberty to consider it in estimating the damages. It sometimes happens that money is due, but not now pay- able ; and then the interest does not begin until the money is payable. As if a note be on demand, the money is always due, but it is not payable until demand ; and therefore is not on interest until demand. But a note payable at a certain time, or after a certain period, carries interest from that time, whether it be demanded or not. The laws which regulate interest and prohibit usury are very various, and are not perhaps precisely the same in any two of our States. Formerly, usury was looked upon as so great an offence, that the whole debt was forfeited thereby. The law now, however, is — generally, at least — much more lenient. The theory that money is like any merchandise, worth what it will bring and no more, and that its value should be left to fix itself in a free market, is certainly gaining ground. In many States there are frequent efforts so to change the statutes of usury that parties may make any bargain for the use of money which suits them ; but when they make no bargain, the law shall say what is legal interest. And, generally, the forfeiture is now much less than the whole debt. At the close of this chapter will be found a statement of the usury laws of the states. There is no especial form or expression necessary to make a bargain usurious. It is enough for this purpose if there be a sub- stantial payment, or promise of payment, of more than the law allows, either for the use of money lent, or for the forbearance of money due and payable. One thing, however, is certain : there must be a usurious intention, or there is no usury. That is, if one miscalculates, and so receives a promise for more than legal interest, the error may be corrected, the excess waived. WHAT INTEREST IS, AND WHEN IT IS DUE. 309 and the whole legal interest claimed. But if one makes a bar- gain for more than legal interest, believing that he has a right to make such a bargain, or that the law gives him all that he claims, this is a mistake of law, and does not save the party from the effect of usury. It may be well to remark, that the law makes a very wide distinction between a mistake of fact and a mistake of law. Generally, it will not permit a party to be hurt by a mistake of fact ; but it seldom suffers any one to excuse himself by a mis- take of law, because it holds that everybody should know the law, and because it would be dangerous to permit ignorance of the law to operate for any one's benefit. The question has been much discussed, whether the use of the common tables which are calculated on the supposition that a year consists of 360 days, in usurious. In New York, it has , been held that it is ; but in Massachusetts, and some other States, it is held that the use of such tables does not render the transaction usurious. We think this latter the better opinion. If a debtor requests time, and promises to pay for the forbear- ance legal interest, and as much more as the creditor shall be obliged to pay for the same money, this is not a usurious con- tract. And, even if usurious interest be actually taken, this, . although strong evidence of an original usurious bargain and intent, is not conclusive, but may be rebutted by adequate proof or explanation. When a statute provides that a usurious contract is wholly void, such a contract cannot become good afterwards ; and there- fore a note which is usurious, if it be therefore void by law in its inception, is not valid in the hands of an innocent indorsee. But it is otherwise where the statute does not declare the con- tract void on account of the usury. If a note, or any securities for a usurious bargain, be delivered up by the creditor and can- celled, and the debtor thereupon promises to pay the original debt and lawful interest, this promise is valid. New securities for old ones which are tainted with usury are equally void with the old ones, or subject to the same defence. Not so, however, if the usurious part of the original securities be expunged, and not included in the new ; or if the new ones are 3IO INTEREST AND USURY. given to third parties, who were wholly innocent of the original usurious transaction. And if a debtor suffers his usurious debt to be sued, and a judgment recovered against him for the whole amount, it is then too late for him to take any advantage of the usury. So, if land or goods be mortgaged to secure a usurious debt, and afterwards conveyed to an innocent party, subject to such mortgage, the latter cannot set up the defence of usury, and thereby defeat an action to enforce the mortgage. Usurers resort to many devices to conceal their usury ; and sometimes it is very difficult for the law to reach and punish this offence. A common method is for the lender of money to sell some chattel, or a parcel of goods, at a high price, the bor- rower paying this price in part as a premium for the loan. In England, it would seem from the reports to be quite common for one who discounts a note to do this nominally at legal rates, but to furnish a part of the amount in goods at a very high val- uation. In all cases of this kind, or rather in all cases where questions of this kind arise, the court endeavors to ascertain the real character of the transaction. Such a transaction is always suspicious, for the obvious reason that one who wants to borrow money is not very likely to desire at the same time to buy goods at a high price. But the jury decide all questions of this kind; and it is their duty to judge of the actual intention of the par- ties from all the evidence offered. If that intention is substan- tially that one should loan his money to another, who shall therefore, in any manner whatever, pay to the lender more than legal interest, it is a case of usury. " Where the real truth is a loan of money," said Lord Mansfield, "the wit of man cannot find a shift to take it out of the statute." If this great judge meant only that, whenever legal evidence shows the transaction to be a usurious loan, the law pays no respect whatever to any pretence or disguise, this is certainly true. But the wit of man does undoubtedly devise many " shifts," which the law cannot detect. There seems to be a general rule in these cases in ref- erence to the burden of proof ; the borrower must first show that he took the goods on compulsion ; and then it is for the lender to prove that no more than their actual value was received or charged for them. IVHA T INTEREST IS, AND WHEN IT IS DUE. 311 If one should borrow stock at a valuation much above the market rate, and agree to pay interest on this value for the use of the stock to sell or pledge, this would be usurious. One may lend his stock, and may, without usury, give the borrower the option to replace the stock, or to pay for it at even a high value, with interest. But, if he reserves this option to himself, the bargain is usurious, because it gives the lender the right to claim more than legal interest. So, the lender may reserve either the dividends or the interest, if he elects at the time of the loan ; but he cannot reserve the right of electing at a future time, when he shall know what the dividends are. A contract may seem to be two, and yet be but one, if the seeming two are but parts of a whole. Thus, if A borrows one thousand dollars, and gives a note promising to pay legal interest for it, and then gives another note for (or otherwise promises to pay) a further sum, in fact for no consideration but the loan, this is all one transaction, and it constitutes a usurious contract. But if there be a loan on legal terms, with no promise or obligation on the part of the borrower to pay any more, this might not be invalidated by a mere understanding that the borrower should, when the money was paid by him, make a present to the lender for the accommodation. And if, after a payment has been made, which discharged all legal obligation, the payer voluntarily adds a gift, this would not be usurious. But in every such case the question for a jury is, What was this additional transfer of money, in fact ; was it a voluntary gift, or was it the payment of a debt .'' If an honest gift, it w^s not usurious ; if a payment, it was usurious. A foreign contract, valid and lawful where made, may be enforced in a State in which such a contract, if made there, would be usurious. But if usurious where it was made, and, by reason of that usury, wholly void in that State, if it is put in suit in another State where the penalty for usury is less, it cannot be enforced under this mitigated penalty; but it is wholly void there also. 312 INTEREST AND USURY. SECTION II. A CHARGE FOR RISK OR FOR SERVICE. It is undoubtedly lawful for a lender to charge an extra price for the risk he incurs, provided that risk be perfectly dis- tinct and different from the merely personal risk of the debtor's being unable to pay. If anything is paid for this last risk, it is certainly usury. So, one may charge for services rendered, for brokerage, or for rate of exchange, and may even cause a domestic loan or discount to be actually converted into a foreign one, so as to charge the exchange; and this would not be usurious. But here, as before, and indeed throughout the law of usury, it is necessary to remember that the actual intention, and not the apparent purpose or form of the transaction, must determine its character. So, if one lends money to be used in business, and lends it upon such terms that he becomes a partner in fact with those who use it, taking his share of the profits, and becoming liable for the losses, this is not usurious. So, if one enters into a partnership, and provides money for its business, and the other party is to bear all the losses, and also to pay the capitalist more than legal interest as his share of the profits, this is not usurious, because there is no loan, if there be in fact a partnership ; for then there is a very impor- tant risk, as he becomes liable for all the debts of the partner- ship. The banks always get more than legal interest by their way of discounting notes and deducting the whole interest from the amount they give. This is perfectly obvious if we take an extreme case ; as it a bank discounted a note of a thousand dollars at fifteen years, in Massachusetts, the bank would dis- count the interest of all the fifteen years ; the borrower would receive one hundred dollars, and at the end of fifteen years he would pay back one thousand dollars, which is equivalent to paying nine hundred dollars for the use of one hundred for fifteen years, whereas the legal interest would be but ninety dollars. But this method is now established by usage and sanctioned by law. It should, however, be confined to dis- THE SALE OF NOTES. 313 counts of negotiable pa.per, not having a very long time to run. For the rule is founded upon usage, and the usage goes no further. SECTION III. THE SALE OF NOTES. There are, perhaps, no questions in relation to interest and usury of more importance than those which arise from the sale of notes or other securities. In the first place, there is no doubt whatever that the owner of a note has as good a right to sell it for the most he can get, as he has to sell any goods or wares which he owns. There is here no question of usury, because there is no loan of money, nor forbearance of debt. But, on the other hand, it is quite as certain that if any person makes his own note, and sells that for what he can get, this, while in appearance the sale of a note, is in fact the giving of a note for money. It is a loan and a borrowing, and nothing else. And if the apparent sale be for such a price that the seller pays more than legal interest, or, in other words, if the note bear interest and is sold for less than its face, or is not on interest, and more than interest is discounted, it is a usurious transaction. Supposing these two rules to be settled, the question in each case is, under which of them does that case come, or to which of them does it draw nearest. We are not aware of any general principle so likely to be of use in determining these questions as this : if the seller of a note acquired it by purchase, or if it is his for money advanced or lent by him to its full amount, he may sell it for what he can get ; but if he be the maker of the note, or the agent of the maker, and receives for the note less than would be paid him if only a lawful discount were made, it is a usurious loan. In other words, the first holder of a note (and the maker of a note is not and cannot be its first holder) must pay to the maker the face of the note, or its full amount. And after paying this, he may sell it, and any subsequent purchaser may sell it as merchandise. The same rule must apply to corporations, and all other bodies or persons who issue their notes or bonds on interest. If sold by brokers for them, for less than the full 314 INTEREST AND USURY. amount, it is usurious. Nor can such notes come into the market free from the taint and the defence of usury, unless the first party who holds them pays for them their full value. But then comes another question. If a note be offered for sale, and be sold for less than its face, and the purchaser sup- poses himself to buy it from an actual holder and not from the maker, can the maker interpose the defence that it was actually usurious, on the ground that the seller was only his agent.' I should say that he could not ; that there can be no usury unless this is intended ; and that the guilty intention of one party cannot affect another party who was innocent. I should say, also, that one who, having no interest in a note, indorses or guarantees it for a certain premium, vi'ill be liable for its face ; he does not now add his credit to the value of his property and sell both together, as where he indorses a note which he h Ms himself, but sells his credit alone. This trans- action I should not think usurious. And if it was open to no other defence, as fraud, for example, and v/as in fact v.-hat it purported to be, and not a mere cover for a usurious loan, we know no good reason why such indorser or guarantor should not be held liable to the full amount of his promise. SECTION IV. COMPOUND INTEREST. Compound interest is sometimes said to be usurious ; but it is not so ; and even those cases which speak of it as " savoring of usury " may be thought to go too far, unless every hard bar- gain for money is usurious. As the authorities now stand, however, a contract or promise to pay money with compound interest cannot, generally, be enforced. On the other hand it is neither wholly void, nor attended with any penalty, as it would be if usurious ; but is valid for the principal and simple interest only. Nevertheless, compound interest is sometimes recognized as due by courts of law, as well as of equity ; and sometimes, too, by its own name. Thus, if a trustee be proved to have had the money of the party for whom he is trustee (who is A BSTRA CTS OF USUR Y LA WS. 3 , 5 called in law his ce^ttii que trust) for a long time, without accounting for it, he may be charged with the whole amount, reckoned at compound interest, so as to cover his unlawful profits. If compound interest has accrued under a bargain for it, and been actually paid, it cannot be recovered back, as money usuriously paid may be. And if accounts are agreed to be settled by annual rests, which is in fact compound interest, or are actually settled so in good faith, the law sanctions this. Some- times, in cases of disputed accounts, the courts direct this method of settlement. Where money due on interest has been paid by sundry instalments, the mode of adjusting the amount which has the best authority, and the prevailing usage in its favor, seems to be this : Compute the interest due on the principal sum to the time when a payment, either alone or in conjunction with preceding payments, shall equal or exceed the interest due on the princi- pal. Deduct this sum, and upon the balance cast interest as before, until a payment or payments equal the interest due;' then deduct again, and so on. ABSTRACTS OF THE USURY LAWS OF THE STATES. These laws are stated from the latest information ; but are constantly undergoing change and are likely to be so, until restrictions upon interest are abolished, as they now ai'e in some States. ALABAMA. — Legal interest, eight per cent. Usurious interest cannot be recovered, and, if paid, is to be deducted from the principal. AKKANSAS. — Legal interest, six per cent. Parties may agree, by con- tract, written or verbal, for whatever amount they will. CALIFORIIIA. — Legal interest, seven per cent. Ten per cent, on money overdue on any written instrument. CANADA, DOMINION OF. — Legal interest, generally six per cent., with the right to agree on what parties will ; but with exceptions in different provinces, especially as to banks and other corporations, and loans on differ- ent kinds of security. CONNECTICUT. — Legal interest, six per cent., in the absence of any ao-reement to the contrary, and no more can be recovered. In computing interest, three hundred and sixty days may be considered a year. Money paid for insurance or taxes on property mortgaged to secure a loan, may be recovered if the borrower has agreed in writing to pay the same. DISTRICT OF COLUMBIA. — Legal interest, six per cent. Ten per cent, may be paid on agreement. Any excess forfeits the whole interest. 3i6 INTEREST AND USURY. DELAWARE.— Legal interest, six per cent. Penalty for taking more- forfeiture of the money lent ; half to the prosecutor, half to the State. FLORIDA.— Legal interest, six per cent. But the usury laws are expressly aboHshed. GEOKGIA.-^Legal interest, seven per cent. Not exceeding twelve per cent, piay be recovered if agreed upon in v/riting. ILLINOIS. — Legal interest, six per cent. Parties may agree upon ten per cent, orally, or in writing. If more is agreed on or is taken, only the principal can be recovered. INDIANA. — Legal interest, six per cent. Ten per cent, may be agreed upon in writing. It may be taken in advance. Excess cannot be recovered, and, if paid, shall be considered as paid on account of the principal. lOV/-' . — Legal interest six per cent. Parties may agree in writing for ten per cent. If contract be for more, the creditor recovers only the princi- pal, and interest at ten per cent, is forfeited to the State. KAKTCAS. — Legal interest, seven per cent. Parties may stipulate for any rate not exceeding twelve per cent. Contract for more forfeits all inter- est. Usurious payments held to be made on account of principal. KENTUCKY. — Legal interest, six per cent., but eight per cent, may be agreed upon. Extra interest forfeited ; if paid, may be recovered back. LOUISIANA.— Legal interest, five per cent. Conventional interest shall in no case exceed eight per cent., under penalty of forfeiture of entire interest. Owner of negotiable paper discounted for more than eight per cent., may recover eight per cent. Usurious interest may be recovered back, but must be sued for within twelve months. MAINE. — Legal interest, six per cent. ; but not to apply to letting cattle, or other similar contracts in practice among farmers ; nor to maritime con- tracts, as bottomry or insurance ; and not to course of exchange in practice among merchants. Excessive interest not recoverable, and, if paid, may be recovered back, if sued for within a year. MARYLAND — Legal interest, six per cent. Excess forfeited. MASSACHUSETTS.— Legal interest, six per cent. Any rate of interest or discount may be made by agreement; but if greater than six per cent., it must be in writing. MICHIGAN. — Legal interest, seven per cent. Parties may agree in writing upon any rate not exceeding ten per cent. If more interest is agreed for, only legal interest recoverable. MINNESOTA. — Legal interest, seven per cent. Parties may agree in writing for more, but agreement not valid for any excess over twelve per cent. Interest on judgments', six per cent. MISSISSIPPI. — Legal interest, six per cent. Parties may agree in writing for ten per cent. If more be taken or agreed for, the excess is for- feited. MISSOURI. — Legal interest, six per cent. ; but parties may agree in writ- ing for any rate not to exceed ten per cent. If more be taken or agreed for, • ABSTRA CTS OF USURY LA IFS. 3 1 7 the creditor recovers only the principal, and interest at ten per cent, is for- feited to the State. Parties may contract in writing for the payment of, interest upon interest; but the interest shall not be compounded oftenef than once a year. NEBHASKA. — Legal interest, ten per cent. Parties may agree on any rate not exceeding twelve per cent. On proof of illegal interest, plaintiff shall recover only principal. NEVADA. — Legal interest, ten per cent. But parties may agree in writing for any rate. NEW HAMPSHIHE.— Legal interest, six per cent. A person re- ceiving more forfeits threefold the excess ; but contracts are not invalidated by securing or taking more. Exceptions as to contracts of farmers and merchants as in Maine. NEW JERSEY. — Legal interest, six per cent. ; on usurious contract, principal only can be recovered. NEW YORK. — Legal interest, seven per cent. A contract for more than legal interest is wholly void. If more than legal interest is paid, it may be recovered back within a year by payer, or within the next three years by the overseers of the poor. No corporation can interpose the defence of usury; nor can a joint-stock company having the powers of a corporation. NORTH CAROLINA.— Legal interest, six per cent. Eight per cent, may be recovered for loan of money by written agreement. On usurious contracts no interest is recoverable. OHIO. — Legal interest, six per cent. Any rate not exceeding eight per cent, may be agreed upon in writing. Excess cannot be recovered. Banks can charge or take by discount only six per cent. Railroad companies may borrow money at seven per cent. OREGON. — ^Legal interest, ten per cent. Parties may agree for one per cent, a month. Usurious interest works a forfeiture of the principal and interest. PENNSYXjVANIA. — Legal interest, six per cent. Excess cannot be recovered. If paid, may be recovered back if sued for within six months. RHODE ISLAND. — Legal interest, six per cent. Any higher rate may be agreed upon. SOUTH CAROLINA.— Legal interest, seven per cent. More than legal interest may be agreed upon by the parties. TENNESSEE.— Legal interest, six per cent. Parties may agree in writing for more. TEXAS.— Legal interest, eight per cent. Parties may agree in writing for twelve per cent. If more than this is agrfeed for, no interest can be ■ recovered. VERMONT.— More than six per cent, prohibited ; and a person paying more may recover excess ; but this is not to extend to usage of farmers or merchants, as in Maine and New Hampshire. VIRGINIA. — Legal interest, six per cent. All contracts for a greater rate void. Excess, if paid, may be recovered back. 3l8 THE LAW OF PLACE. WEST VIRGINIA.— Legal interest, six per cant. Contracts for a greater amount are void as to the excess. WISCONSIN. — Legal interest, seven per cent. ; but parties may agree upon a rate not exceeding ten per cent. Usurious contracts are void, and if excessive interest be paid, treble the amount thereof may be recovered back. CHAPTER XXIV. THE LAW op PLACE. SECTION L WHAT IS MEANT BY THE LAW OF PLACE. If either of the parties to a contract is not at home, or if both are not at the same home, when they enter into the con- tract, or if it is to be executed abroad, or if it comes into litiga- tion before a foreign tribunal, then the rights and the obligations of the parties may be affected either by the law of the place of the contract, or by the law of the domicil or home of a party, or by the law of the place where the thing is situated to which the contract refers, or by the law of the tribunal before which the case is litigated. All of these are commonly included in the Latin phrase lex loci, or, as the phrase is trans- lated, the Law of Place. It is obvious that this law must be of great importance wherever citizens of distinct nations have much commercial intercourse with each other. In this country it has an especial and very great importance, from the circumstance that, while the citizens of the whole country have at least as much business connection with each other as those of any other nation, our country is composed of thirty-eight separate and independent sovereignties, which are, for most commercial purposes, regarded by the law as foreign to each other. SECTION II. THE GENERAL PRINCIPLES OF THE LAW OF PLACE. The general principles upon which the law of place depends are four. First, every sovereignty can bind, by its laws, all per- GENERAL PRINCIPLES OF THE LAW OF PLACE. 319 sons and all things within the limits of the State. Second, no law has any force or authority of its own, beyond those limits. Third, by the comity or courtesy of nations, — aided in our case as to the several States, by the peculiar and close relation between the States, and for some purposes by a constitutional provision, — the laws of foreign States have a qualified force and influence. The fourth rule is perhaps that of the most frequent appli- cation. It is, that a contract which is not valid where it is made is valid nowhere else ; and one which is valid where it is made is valid everywhere. Thus a contract made in Massachusetts, and there void because usurious, was sued in New Hampshire and held to be void there, although the law of New Hampshire would not have avoided it if it had been made there. But courts do not take notice of foreign revenue laws, and will enforce foreign contracts made in violation of them. If contracts are made only orally, where by law they should be in writing, they cannot be enforced elsewhere where writing is not required ; but if made orally where writing is not required, they can be enforced in other countries where such contracts should be in writing. The rule, that a contract which is valid where it is made is valid everywhere, is applicable to contracts of mar- riage. As contracts relate either to movables or immovables, or, to use the phraseology of our own law, to personal property or to real property, the following distinction is taken. If the contract refers to personal property (which never has a fixed place, and is therefore called, in some systems of law, movable property), the place of the contract governs by its law the construction and effect of the contract. But if the contract refers to real property, it is construed and applied by the law of the place where that real property is situated, without reference, so far as the title is concerned, to the law of the place of the contract. Hence, the title to land can only be given or received as the law of the place where the land is situated requires and determines. And it has been said that the same rule may properly apply to all other local stock or funds, although of a personal nature, or so made by the local law, such as bank stock, insurance stock, 320 THE LA W OF PL A CE. manufacturing stock, railroad shares, and other incorporeal property, owing its existence to, or regulated by peculiar local laws ; and therefore no effectual transfer can be made of such property, except in the manner prescribed by the local regula- tions. As to the capacity of a person to enter into contracts, it is undoubtedly the general rule, that this is determined by the law of his domicil ; and whatever that permits him to do he may do anywhere. SECTION III. THE PLACE OF THE CONTRACT. A CONTRACT is made zuhcii both parties agree to it, and not before. It is therefore made where both parties agree to it, if this is one place. But if the contract be made by letter, or by separate signatures to an instrument, the contract is then made where that signature is put to it, or that letter is written, which in fact completes the contract. But this rule is subject to a very important qualification, when the contract is made in one place, and is to be performed in another place ; for then, in general, the law of this last place must determine the force and effect of the contract, for the obvious and strong reason, that parties who agreed that a certain thing should be done in a certain place intended that a thing should be done there, which was lawful there, and therefore bargained with refer- ence to the laws of the place, not in»which they stood, but in which they were to act. This principle has been applied to an ante-nuptial contract, and it was held, that when parties marry in reference to the laws of another country as their intended domicil, the law of the intended domicil governs the construction of their marriage contract as to the rights of per- sonal property. But, for many commercial transactions, both of these rules seem to be in force ; or rather to be blended in such a way as to give the parties an option as to what shall be the place of the contract, and what the rule of law which shall apply to it. Thus, a note written in New York, and expressly payable in New York, is, to all intents and purposes, a New York note ; and if more DOMICIL. 321 than seven per cent, interest was promised, it would be usurious, whatever was the domicil of the parties. If made in New York, and no place of payment is expressed, it is payable and may be -demanded anywhere, but would still be a New York note. But if made in New York, but expressly payable in Boston (where any amount of interest may be agreed for), and promised to pay ten per cent, interest, when payment of the note was demanded in Boston, the promise of interest would be held valid. So, if the note were made in New York, payable in Boston, and prom- ising to pay ten per cent, interest, it would not be usurious. In other words, if a note is made in one place, but is payable in another, the parties have their option to made it bear the interest which is lawful in either place. If the contract be entered into for money, and is made in one place but is payable at another place on a day certain, and no interest be stipulated, and payment be delayed, interest by way of damages shall be allowed, according to the law of the place of payment, where the money may be supposed to have been required by the creditor for use, and where he might be supposed to have borrowed money to supply the deficiency thus occurring, and to have paid the rate of interest of that country. If a note made in New York and payable in Massachusetts were demanded in Massachusetts and unpaid, and afterwards put in suit in Mas- sachusetts, and personal service made on the promisor there, I should say that any interest which it bore should be recovered, provided it were lawful in Massachusetts. And indeed, generally, that such a note, being made in good faith, might always bear any interest lawful where it was payable. But a note made in a State where the law permitted only a low interest, and intended in fact to be paid in that State, but written payable in some State permitting higher interest, merely to get this higher inter- est, could not by this trick escape the usury laws of the State where it was made, and get the higher interest. SECTION IV. DOMICIL. It is sometimes very important to determine where a person has his domicil, or Home. In general, it is his residence ; or 21 325 THE LAW OF PLACE. that country in which he permanently resides. He may change it by a change of place botli in fact and intent, but not by either alone. Thus, a citizen of New York, going to London and remaining there a long time, but without the intention of relin- quishing his home in New York, does not lose that home. And, if he stays in New York, his intention to live and remain abroad does not affect his domicil until he goes in fact. He may have his legal domicil in one place and yet spend a very large part of his time in another. But he cannot have more than one domicil. His words or declarations are not the only evidence of his intent ; and they are much stronger evi- dence when against his interest than when they are in his favor. Thus, one goes from Boston to England. If he goes intending not merely to travel, but to change his residence permanently, and not to return to this country unless as a visitor, he changes his domicil from the day that he leaves this country. Let us suppose, however, that he is still regarded by the assessors as residing in Boston, although travelling abroad, and is heavily taxed accordingly. If he can prove that he has abandoned his original home, he escapes from the tax which he must other- wise pay. Now, his declarations that he has no longer a home here, and that his residence is permanently fixed in England, and the like, would be very far from conclusive in his favor, and could indeed be hardly received as evidence at all, unless they were confirmed by facts and circumstances. But if it could be shown that he had constantly asserted that he was still an American, that he had no other permanent residence, no home but that which he had temporarily left as a traveller, such declarations would be almost conclusive against him. In general, such a question would be determined by all the' words and acts, the arrangement of property at home, the length and the char- acter of the residence abroad, and all the acts and circumstances which would indicate the actual intention and understanding of the party. Two cases have occurred in the city of Boston which illus- trate this question. In one, a citizen of Boston, who had been at school in the city of Edinburgh when a boy, and formed a pre- dilection for that place as a residence, and had expressed a DOMICIL. 323 determination to reside there if he ever should have the means of so doing, removed with his family to that city in 1836, declar- ing, at the time of his departure, that he intended to reside abroad^ and that, if he should return to the United States, he should not live in Boston. He resided in Edinburgh and vicin- ity, as a housekeeper, taking a lease of an estate for a term of years, and endeavored to engage an American to enter his family for two years as instructor of his children. Before he le& Boston he made a contract for the sale of his mansion-house and furniture there, but shortly afterward procured said con- tract to be annulled (assigning as his reason therefor, that, in case of his death in Europe, his wife might wish to return to Boston), and let his house and furniture to a tenant. Held, that he had changed his domicil, and was not liable to taxation as an inhabitant of Boston in 1837. In the other case, a native inhab- itant of Boston, intending to reside in France with his family, departed for that eo,untry in June, 1836, and was followed by his family about three months afterwards. His dwelling-house ■ and furniture were leased for a year, and he hired a house for a year in Paris. At the time of his departure he intended to return and resum.e his residence in Boston, but had not fixed on any time for his return. He returned in about sixteen months, and his family in about nine months afterwards. Held, that he continued to be an inhabitant of Boston, and that he was nightly taxed there during his absence, for his person and per- sonal property. This last case was distinguished from the for- mer by the different intent of the parties upon their departure from home. It is a general rule, that, if one has a domicil, he retains it until he acquires another. Thus, if a seaman, without family or property, sails from the place of his nativity, which may be considered his domicil of origin, although he may return only at long intervals, or even be absent for many years, yet, if he does not, by some actual residence or other means, acquire a domicil elsewhere, he retains his domicil qf origin. It seems to be agreed that one may dwell for a consider- able time, and even regularly during a large part of the year, 324 THE LA W OF SHIPPING. in one place, or even in one State, and yet have his domicil in another. A woman marrying takes her husband's domicil, and changes it with him. A minor child has the domicil of his father, or of his mother if she survives his father ; and the surviving parent, with whom a child lives, by changing his or her own domicil in good faith, changes that of the child. And even a guardian has the same power. CHAPTER XXV. THE LAW OF SHIPPING. SECTION I. THE OWNERSHIP AND TRANSFER OF SHIPS. The Law of Shipping may be considered under three divis- ions. First, as to ownership and transfer of ships. Second, as to the employment of ships as carriers of goods, or of passen- gers, or both. Third, as to the navigation of ships. I begin with the first topic. Ships are personal property ; or, in other words, a 'ship is a chattel ; and yet its ownership and transfer are regulated in this country by rules quite analogous to those which apply to real property. The Constitution of the United States gives to Congress the power to enact laws for the regulation of commerce. In execu- tion of this power, acts were passed in 1792, and immediately after, which followed substantially the Registry and Navigation Laws of England, some of which had been in force about a cen- tury and a half. The English laws were intended to secure English commerce to English men and English ships ; and it was supposed that the commercial prosperity of England wag in a great measure due to them. To secure the evidence of the American character of 3i vessel, the statute of 1792 provides for an exact system of regis- tration in the custom-house. There is no requirement of regis- THE OWNERSHIP AND TRANSFER OF SHIPS. 325 tration. The law does not say that a ship shall or must be registered, but that certain ships or vessels may be ; and, if they are registered, they shall have certain privileges. And the dis- advantage of being without registry operates as effectually to make registration universal, as a positive requirement with a heavy penalty could do. The ships which may be registered are those already regis- tered December 31st, 1792, under the act of September, 1789; those built within the United States, and owned wholly by citi- zens thereof ; and those captured and condemned as prizes, or adjudged forfeited by violation of law, if at the time of registry they are owned wholly by citizens of this country. No ship can be registered if an owner or part-owner usually resides abroad, although he is a citizen, unless he is a consul cf the United States, or agent for, and a partner in a mercantile liouse established and doing business here; nor if the master Ic not a citizen of the United States ; nor if the owner or part- owner be a naturalized citizen, and reside in the country whence he came more than a year, or in any foreign country more than two years, unless he be consul or public agent of the United States. But a ship which has lost the benefits of registry by the non-residence of an owner, in such a case may be regis- tered anew if she become the property of a resident citizen, by bond fide purchase ; nor can a ship be registered which has been, at any time, the property of an alien, unless she becomes the property of the original owner or his represen- tative. Sometimes Congress, by special acts, permits the registra- tion, as an American ship, of a vessel which has become, by purchase, American property. If a registered American ship be sold or transferred, in whole or in part, to an alien, the cer- tificate of registry must be delivered up, or the vessel is forfeited ; but if, in case of a sale in part, it can be shown that any owner of a part not so sold was ignorant of the sale, his share shall not be subject to such forfeiture. As soon as a reg- istered vessel arrives from a foreign port, her documents must be deposited with the collector of the port of arrival, and the owner, or, if he does not reside within the district, the master, 326 THE LA W OF SHIPPING. must make oath that the register contains the names of all persons who are at that time owners of the ship, and at thq same time report any transfer of the ship, or of any part, that has been made within his knowledge since the registry ; and also declare that no foreigner has any interest in the ship. If a register be issued fraudulently, or with the knowledge of the owners, for a ship not entitled to one, the register is not only void, but the ship is forfeited. If a new register is issued, the old one must be given up ; but where there is a sale by process of law, and the former owners withhold the register, the Secre- tary of the Treasury may authorize the collector to issue a new one. If a ship be transferred while at sea, or abroad, the old register must be given up, and all the requirements of law, as to registry, etc., must be complied with, within three days after her arrival at the home port. Important exclusive privileges have been granted to regis- tered vessels of the United States. By the statute of 1817, it is provided, that no merchandise shall be brought from any for- eign country to this, except in American vessels, or in vessels belonging to that country of which the merchandise is the growth. Also, that no merchandise shall be carried from port to port in the United States, by any foreign vessel, unless it formed a part of its original cargo. A ship that is of twenty tons burden, to be employed in the_ fisheries, or in the coasting trade, need not be registered, but must be enrolled and licensed accordingly. -If under twenty tons burden, she need only be licensed. If licensed for the fisheries, she may visit and return from foreign ports, having stated her intention of doing so, and being permitted by the collector. And if registered, she may engage in the coasting trade or fishery, and if licensed and enrolled, she may become a registered ship, subject to the regulations provided for such cases. A ship that is neither registered nor licensed and enrolled can sail on no voyage with the privilege or protection of a national character or national papers. If she engages in foreign trade, or the coasting trade, or fisheries, she is liable to for- feiture ; and if she have foreign goods on board, must at all THE TRANSFER OF PROPERTY IN A SHIP. 327 events ^pay the tonnage duties leviable on foreign ships. In these days, no ship engaged in honest business, and belonging to a civilized people, is met with on the ocean, without having the regular papers which attest her nationality, unless she has lost them by some accident. SECTION II. THE TRANSFER OF PROPERTY IN A SHIP. The Statute of Registration provides, that, " in every case of sale or transfer, there shall be some instrument in writing, in the nature of a bill of sale, which shall recite at length the said certificate; otherwise the said ship or vessel shall be incapable of being registered anew," It follows, therefore, that a merely oral transfer, although for valuable consideration, and followed by possession, gives the transferee no right to claim a new register setting forth his ownership. But this is all. There is nothing in this statute to prevent the property from passing to and vesting in such transferee. It is, however, unquestionably a principle of the maritime law generally, that property in a ship should pass by a written instrument. And as this principle seems to be adopted by the statute, the courts have sometimes almost denied the validity of a merely parol transfer. The weight of authority and of reason is, however, undoubtedly in favor of the conclusion stated by Judge Story, that " the reg- istry acts have not, in any degree, changed the common law as to the manner of transferring this species of property." It would follow, therefore, that such transfer would be valid, and would pass the property. In 1850, Congress, however, passed an act "to provide for recording the conveyances of vessels, and for other purposes." By this statute it was provided " that no bill of sale, mortgage, hypothecation, or conveyance of any vessel or part of any vessel of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and per- sons having actual notice thereof; unless such bill of sale, mortgage, hypothecation, or conveyance be recorded in the office of the collector of the customs where such vessel is registered or 328 THE LA W OF SHIPPING. enrolled." Then follows an exception in favor of liens^by bot- tomry, and in subsequent sections are provisions for recording by the collector, and giving certificates, etc. This statute has no effect, that I perceive, upon oral trans- fers, excepting that, as they cannot be recorded, their operation is limited to the grantors and those who have actual notice. Where the transfer is by bill of sale, the record of this, under the late statute, is notice to all the world. But in most of our States there are already provisions for the record of mortgages of personal property, and the question arises how these are affected by this statute of the United States. I should say that it controlled and superseded the State statute, so as to make that unnecessary and ineffectual ; and therefore a record in the custom-house only would be sufficient, and a record under the State Law would affect only those who had actual knowledge of it. As a ship is a chattel, a transfer of it should be accompanied by a delivery of possession. Actual delivery is sometimes im- possible where a ship is at sea; and the statute of 1850 makes the record of the transfer equivalent to change of possession. If there be no record, possession should be taken as soon as possible ; and prudence would still require the same course in case of transfer by writing and record. By the word "ship," and still more by the phrase "ship and her appurtenances," or "apparel," or "furniture," everything would pass which was distinctly connected with the ship, and is on board of her, and fastened to her if that be usual, and needed for her navigation or for her safety. Kentledge, a valuable kind of permanent ballast, has been held to pass with the ship ; so have a rudder and cordage prepared for a vessel, but not yet attached to her, and not quite finished ; and so would a boat, anchors, etc., generally. But the answer to the question. What IS part of the ship? must always depend somewhat upon the words of the instrument, and upon the circumstances of the case and the intention of the parties. A sale by the decree of any regular court of admiralty, with due notice to all parties, and with proper precautions to protect the interests of all, and to guard against fraud or precipitancy. PART-OWNERS. 329 Would yndoubtedly be acknowledged by courts of admiralty of every other nation as transferring the property effectually. SECTION in. PART-OWNERS. Two or more persons may become part-owners of a ship, in either of three ways. They may build it together, or join in purchasing it, or each may purchase his share independently of the others. In either case their rights and obligations are the same. If the register, or the instrument of transfer, or other equiv- alent evidence, do not designate specific and unequal pro- portions, they will be presumed to own the ship in equal shares. Part-owners are not necessarily or usually partners. But a ship, or any part of a ship, may constitute a part of the stock or capital of a copartnership ; and then it will be governed, in all respects, by the law of partnership. A part-owner may at any time sell his share to whom- he will. But he cannot sell the share of any other part-owner, without his authority. If he dies, his share goes to his representatives, and not to the surviving part-owners. A majority of the part-owners may, generally, manage and direct the employment of the property at their discretion. But a court of admiralty will interfere and do justice between them, and prevent either of the part-owners from inflicting injury upon the others. One part-owner may, in the absence of the rest, and without prohibition from them, manage the ship, as for himself and for them. And the contracts he enters into, in relation to the employment or preservation of the ship, bind all the part-owners in favor of an innocent third party. In general, all the part-owners are liable, each one for the whole amount, for all the repairs of a ship, or for necessaries actually supplied to her, in good faith. If one pays his part of what is due, or even more than his share, and it is agreed be- tween him and the creditor that he shall not be held further, still, if the others do not pay, he must pay, unless there is a 330 THE LA W OF SHIPPING. better consideration for the promise not to call on him than his merely paymg a part of what he was legally bound to pay ; for where a man is bound to pay all, his paying a part is no consid- eration whatever for a promise to him. If he had a discharge under seal, it might protect him at law, but would not in admi- ralty, unless the circumstances of the case made this just. If it can be clearly shown, however, that especial credit was given, and intended to be given, to one part-owner personally, to the exclusion of the others, then the others cannot be holden. If the goods were charged to "ship" so and so, or to "ship and owners," this would tend strongly to show that it was intended to supply the goods on the credit of all the owners. If charged to some one owner alone, this would not absolutely prove that credit was intentionally given to him exclusively. But it would raise a presumption to that effect which could be rebutted only by showing that no other owner was known ; or by some other evidence which disproved the intention of dis- charging the other part-owners. So, if the note, negotiable or otherwise, of one part-owner were taken in payment, if the promisor refused to pay, the others would be liable, unless they could show a distinct bargain by which they were exonerated. Commonly, the "ship's husband," as the agent of all' the owners for the management of the ship has long been called, is one of the part-owners. He may be appointed in writing or otherwise. His duties are, in general, to provide for the com- plete equipment and repair of the ship, and take care of her while in port ; to see that she is furnished with all regular and proper papers ; to make proper contracts for freight or passage, and collect the receipts and make the disbursements proper on these accounts. For these things he has all the necessary powers. But he cannot, without special power, insure for the rest, nor buy a cargo for them, nor borrow money, nor give up their lien on the cargo for the freight, nor delegate his authority. Where he acts within his powers, a ship's husband binds all his principals, that is, all the part-owners. But a third party may deal with him on his personal credit alone ; and if the part-owners, believing this, and authorized to believe it by any THE CONTRACT OF BOTTOMRY. 331 acts or words of the third party, settle their accounts with the ship's husband accordingly, this third party cannot now estab- lish a claim against them to their detriment. If a ship's husband is not a part-owner, all the part-owners are liable to him, each for the whole amount. If he is a part-owner, each of the others is liable to him for his share of the expense incurred. The " ship's husband " is called in the Statutes of the United States the " managing, owner." SECTION IV. THE LIABILITy OF MORTGAGEES. A MORTGAGEE of a ship, who is in possession, is, in general, liable for supplies, repairs, etc., in the same way as an owner. But if he has not taken possession, he is not liable for supplies or repairs merely on the ground that his security is strength- ened - by whatever preserves or increases the value of the vessel. Nor can he be made liable, except by some act or words of his own, which show that credit was properly given to' him, or that he has come under a valid engagement to assume this responsibility. SECTION V. THE CONTRACT OF BOTTOMRY. By this contract, a ship is hypothecated (which means pledged) as security for money borrowed. The form of this contract varies in different places, and, indeed, in the same place. Its essentials are : — First, that the ship itself is bound for the payment of the money. Second, that the money is to be repaid only in case the ship performs a certain voyage, and arrives at its destined termination in safety ; or, as it is some- times- provided in modern bottomries, in case that the ship is in safety on a certain day ; therefore, if the ship is lost before the termination of the voyage or the expiration of the period,, no part of the money is due, or, as is sometimes said, the whole debt is paid by the loss. As the lender thus consents that the repayment of the money shall depend upon the safety of the ship, he has a legal right to charge " marine interest," which means as much more than legal interest as will serve to cover his risk. 332 THE LA W OF SHIPPING. The lender may require, and the borrower pay, this marine interest, which may be much more than lawful interest, on a bottomry bond, without usury. If the interest be not expressed in the contract, it will generally be presumed to be meant and included in the sum named as principal. If, by the contract, the lender takes more than legal interest and yet the money is to be paid to him whether the ship be lost or not, this is not a contract of bottomry, and it is subject to all the consequences of usury. But the lender may take security for his debt and marine interest, additional to the ship itself, provided the security is given, like the ship itself, to make the payment certain when it becomes due by the safety of the ship, but is wholly avoided if the ship be lost ; for then the lender takes the risk of losing the whole, principal and interest, by the loss of the ship, and may therefore charge more than simple interest. The most common contracts of bottomry are those entered into by the master in a foreign port, where money is needed and cannot otherwise be obtained. Therefore the security goes with the ship, and the debt may be enforced, as soon as it is payable, against the ship, wherever the ship may be. But in this country, these contracts are frequently made by the owner himself, in the home port. And sometimes they are nothing else than contrivances to get more than legal interest. Thus, if A lends to B ^2C,030 on B's ship for one year, at fifteen per cent, interest, conditioned that, if the ship be lost, the money shall not be paid, and the lender insures the ship for three per cent., he gets twelve per cent, interest, which may be much more than the legal interest, and yet incurs no risk. If such a contract were obviously and certainly merely colorable, and only a pretence for getting usurious interest, the courts would probably set it aside ; but it might be difficult to show this. If the money is payable at the end of a certain voyage, and the owner or his servant, the master of the ship, terminate the voyage sooner, — either honestly, from a change in their plan, or dishonestly, by intentional loss or wreck, — the money becomes at once due. EMPLOYMENT OF A SHIP BY THE OWNER. 333 A bottomry bond made abroad would override all other liens or engagements, except the claim for seamen's wages, and the lien of material men for repairs, and supplies indispensable to the safety of the vessel. The reason is, that a bottomry bond is supposed to be made from necessity, and to have provided the only means by which the ship could be brought home. For the same reason, a later bond is sustained as against an earlier, and the last against all before it. The lien of bottomry depends in no degree on possession, for the ship may go all over the world with the bottomry security attached to her ; but the lender ought to collect the sum due, and so discharge the bond as soon as he conveniently can ; and therefore an unreasonable delay in enforcing it will destroy the lien ; and any connivance by the lender at any fraud on the part of the master avoids the bond entirely, SECTION VI. THE EMPLOYMENT OF A SHIP BY THE OWNER. An owner of a ship may employ it in carrying his own goods, or those of another. He may carry the goods of others, while he himself retains the possession and direction of the ship ; or he may lease his ship to others, to carry their goods. In the first case, he carries the goods of others on freight ; in the second, he lets his ship by charter-party. We shall con- sider first the carriage of goods on freight. He may load his ship as far as he can with his own goods, and then take the goods of others to fill the vacant space ; or he may put up his ship as " a general ship," to go from one stated port to another, and to carry the goods of all who offer. It may be remarked, that the word "freight" is used in different ways ; sometimes to designate the goods or cargo that is carried ; sometimes to denote the money which the shipper of the goods pays to the owner of the ship, for their transporta- tion. Not unfrequently, when the word is used in this latter sense, the word "money" is added, and the phrase "freight- money " leaves no question as to what is meant. Sometimes a ship-owner who lets the whole burden of his ship to another 334 THE LA W OF SHIPPING. is said to carry the shipper's goods on freight. But the most common meaning of the word, especially in law proceedings, is the money earned by a ship not chartered for the transportation of the goods ; and in this sense we shall use it. Nearly the whole law of freight grows out of the ancient and universal principle that the ship and the cargo have reciprocal duties or obligations towards each other, and are reciprocally pledged to each other for the performance of these duties. In other words, not only is the owner of the ship bound to the owner of the cargo, as soon as he receives it, to lade it properly on board, take care of it while on board, carry it in safety .(so far as the seaworthiness of the ship is concerned) to its destined port, and there deliver it, all in a proper way, but the ship itself is bound to the discharge of these duties. That is to say, if, by reason of a failure in any of these particulars, the shipper of the goods is damnified, he may look to the ship-owner for indem- nity ; but he is not obliged to do so, because he may proceed by proper process against the ship itself. This lien, like that of bottomry, is not dependent upon possession, but will be lost by delay, especially if the vessel passes into the hands of a pur- chaser for value without notice. On the other hand, if the ship discharges all its duties, the owner may look to the shipper for the payment of his freight ; but is not obliged to do so, because he may keep his hold upon the goods, and refuse to deliver them until the freight is paid. The party who sends the goods may or may not be the owner of them. And he may send them either to one who is the owner ; for whom the sender bought them, or to one who is only the agent of the owner. In either of these cases, the sender is called the consignor of the goods, and the party to whom they are sent is called the consignee. The sending them is called the consigning or the consignment of them ; but it is quite common to hear the goods themselves called the consignment. The rights and obligations of the ship-owner and the shipper are stated generally in an instrument of which the origin is lost in its antiquity, and which is now in universal use among com- mercial nations, with little substantial variety of form. It is called the Bill of Lading. It should contain the names of the EMPLOYMENT OF A SHIP BY THE OWNER. 335 consignor, of the consignee of the vessel, of the master, of the place of departure, and of the place of destination ; also the price of the freight, with primage and other charges, if any there be, and either in the body of the bill or in the margin, the marks and numbers of the things shipped, with sufficient precision to designate and identify them. It should be signed by the master of the ship, who, by the strict maritime law, has no authority to sign a bill of lading until the goods are actually on board. There is some relaxation of this rule in practice ; but it should be avoided. Usually one copy is retained by the master, and three copies are given to the shipper ; one of them he usually retains, another he sends to the consignee with the goods, and the other he sends to the consignee by some other conveyance. The delivery of the goods promised in the bill is to the con' signee, or his assigns ; and the consignee may designate his assigns by writing on the back of the bill, " Deliver the within^ named goods to A B," and signing this order ; or the consignee may indorse the bill with his name only in blank, and any one who acquires an honest title to the goods and to the bill may write over the signature an order of delivery to himself. The consignee has this power, if such be the usage, even if the word " assigns " be omitted. Such indorsement not only gives the indorsee a right to demand the goods, but makes him the owner of the goods. As the bill of lading is evidence against the ship-owner as to the reception of the goods, and their quantity and quality, it is common to say " contents unknown," or " said to contain, " etc. But without any words of this kind, the bill of lading is not con- clusive upon the ship-owner in favor of the shipper, because he may show that its statements were erroneous through fraud or mistake. But the ship-owner, or master, is bound much more strongly by the words of the bill of lading, in favor of a third party, who has bought the goods for value and in good faith, on the credit of the bill of lading. In a case which occurred in New York, the court said, that, as between the shipper of the goods and the owner of the vessel, a bill of lading may be explained or corrected as far as it is a recei\pt ; that is, as to the 336 THE LA W OF SHIPPING. quantity of the goods shipped, and the like ; but as between the owner of the vessel and an assignee of the bill, for a valuable consideration, paid on the strength of the bill of lading, it may not be explained or corrected ; because the master, by signing the bill, authorizes the purchaser to believe the goods are what the bill says they are. The law-merchant gives to the ship, as we have seen, a lien on the goods for the freight. The master cannot demand the freight without a tender of the goods at the proper time, in the proper way, to the proper person, and in a proper condition ; but then the consignee is not entitled to the goods without pay- ing freight. ' The law gives this lien, whether it be expressed or not. But it may be expressly waived. The bill of lading, or other evidence, may show the agreement of the parties that the goods should be delivered first, and the freight not be payable until a certain time afterwards ; and such an agreement is in general a waiver of the lien. Nevertheless, if it seemed that the ship-owner did not intend to give up his security on the goods, a court of admiralty would so construe such an agreement as to give the consignee pos- session of the goods, for a temporary purpose, as to ascertain their condition, or, possibly, that he might offer them in the market, and by an agreement to sell raise the means of paying the freight ; and yet would preserve for the master his security upon the goods for a reasonable time, unless, in the meantime, they should actually become, by sale, the property of a bond fide purchaser. The contract of affreightment is entire ; therefore no freight is earned unless the whole is earned, by carrying the goods quite to the port of destination. If by wreck, or other cause, the transportation is incomplete, no absolute right of freight goes out of it. We say no absolute right, because a condi- tional right of freight does exist. To understand this we must remember, that, as soon as the ship receives the goods, it, on the one hand, comes under the obligation of carrying them to their destination, and on the other, at the same time or on breaking ground and beginning the voyage, acquires the right of so carrying them. Therefore, if a wreck or other interruption ^EMPLOYMENT OF A SHIP BY THE OWNER. 337 intervenes, the ship-owner has the right of trans-shipping them, and sending them forward in the original ship or another ship, to tlie place of their original destination. When they arrive there, he may claim the whole freight originally agreed on ; but if forwarded in the original ship, he can claim no more ; for then the extra cost of forwarding the goods is his loss. If the master or owner of the ship forwards them in another ship from necessity, and at an increased cost, the shipper must pay this increased cost. The ship-owner not only may, but must, send forward the goods, at his own cost, if this can be done by means reasonably within his reach. He is not, however, answerable for any delay thus occurring, or for any damage from this delay. The shipper himself, by his agent, may always reclaim all his goods, at any intermediate port or place, on tendering all his freight ; because the master's right of sending them forward is merely to earn his full freight. If, therefore, the goods are damaged and need care, and the master can send them forward at some time within reasonable limits, and insists upon his right to do so, the ship- per can obtain possession of his goods only by paying full freight. If, however, the master tenders the goods there to the shipper, and the shipper there receives them, this is held to sever or divide the contract by agreement, and now what is called a freight /w rata itineris, or for that part of the voyage which is performed, is due. This is quite a common transaction. Difficult questions sometimes arise as to what is a reception of the goods by their owner. The rights of the master and of the shipper are apparently opposed to each other, and neither must be pressed too far. The master must not pretend to hold the goods for forwarding, to the detriment of the goods or their value, when he cannot forward them, but merely uses this pre- tence to compel a payment of full freight. And the shipper must not refuse to receive the goods, when the master can do no more with them, and offers their delivery in good faith. If freight for a part of the voyage is payable, the question arises by what rule of proportion shall it be measured. One is purely geographical, and was formerly much used ; that is, the whole freight would pay for so many miles, and the freight for . 22 338 THE LA IV OF SHIPPING. a part must pay for so many less. Another is purely commer- cial. The whole freight being a certain sum for the whole dis- tance, what will it cost to bring the goods to the place where they are received, and how much to take them thence to their original destination. Let the original freight be divided into two parts proportional to these, and the first part is the freight for the part of the voyage through which they were carried, or, as it is called, the freight /w rata, and is to be paid by the ship- per who receives the goods. Neither of these, nor indeed any other fixed and precise rule, is generally adopted in this country. But both courts and merchants seek, by combining the two, to ascertain what proportion of the increase of value expected from the intended transportation has been actually conferred upon the goods by actual partial transportation, and this is to be taken as the freight that is due pro rata iti7ieris. If the bill of lading requires delivery to the consignee or his assigns," he or they paying freight," — which is usual, — and the master delivers the goods without receiving freight, which the consignee fails to pay, the master or owner cannot in the absence of express contract fall back on the consignor and make him liable, unless he can show that the consignor actually owned the goods, or by his words or acts made himself responsible therefor, in which case the bill of lading, in this respect, is nothing more than an order by a principal upon an agent to pay money due from the principal. Under the usual bill of lading the goods are to be delivered . to the consignee or his assigns on the payment of freight. If goods are accepted under this bill of lading, the party receiving them, whether the consignee or his assignee, becomes liable for the freight. . If the master delivers goods to any one, saying that he shall look to him for the freight, he may demand the freight of him unless that person had the absolute right to the goods without payment of freight ; which must be very seldom the case. If the consignee is not liable for the freight, his indorse- ment of the bill of lading does not make him so. And if the consignee is liable, and the goods are received by any one only as agent of the consignor, this agent does not thereby become liable. EMPLOYMENT OF A SHIP BY THE OWNER. 339 If freight be paid in advance, and not subsequently earned, it must be repaidj unless it can be shown that the owner took a less sum for ready cash than he would otherwise have had, and for this or some other equivalent reason the money paid was as a final settlement, and was to be retained by the owner at all events. If a consignee pay more than he should, he may recover it back, if paid through ignorance or mistake of fact ; but not if, with full knowledge of all the facts, he was ignorant or mistaken as to the law. If one sells his ship after a voyage is commenced, he alone can claim the freight of the shipper of goods, although by the contract of sale the seller is to pay it over to the pur- chaser. A mortgagee of a ship who has not taken posses- sion, has not, in general, any right to the freight, unless this is specially agreed. Neither has a lender on a bottomry bond. No freight, of course, can be earned by an illegal voyage, as the law will not enforce any illegal contract, or sanction any illegal conduct. The goods are to be delivered, by the bill of lading, in good condition, "excepting the dangers of the seas," and such other risks or perils as may be expressed. If the goods are dam- aged to any extent by any of these perils, and yet can be and are delivered in specie (that is, if the goods are actually deliv- ered although hurt or spoilt, as corn or hides although rotten, flour although wet, fish although spoilt),' the freight is payable. The shipper or consignee cannot abandon the goods for the freight, if they remain in specie, although they may be worthless ; for damage caused by an excepted risk is his loss, and not the loss of the owner. If they are lost by a risk which the ship-owner does not except in the bill of lading, he is answerable for that loss, and it may be charged in settlement of freight. If they are lost in substance, though not in form, that is, although the cases or vessels are preserved, as if sugar is washed out of boxes or hogsheads, or wine leaks out of casks, by reason of injury sustained from a peril of the sea, though 340 THE LA W OF SHIPPING. the master may deliver the hogsheads or boxes or casks, this is not a delivery of the sugar or of the wine, and no freight is due. If the goods are injured, or actually perish and disappear from internal defect or decay or change, that is, from causes inher- ent in the goods themselves, with no fault of the master, freight is due. But if it can be shown that the loss or injury might have been avoided by the use of proper precautionary measures, and that the usual and customary methods for this purpose have been neglected, the master or ship-owners may be held liable for the damage. If they are lost from the fault of the ship-owner, the master, or crew, the ship-owner must make the loss good ; but in this case may have, by way of offset or deduction, his freight, because the shipper is entitled to full indemnification, but not to make a profit out of this loss. If goods are delivered although damaged and deteriorated from faults for which the owner is responsible, as bad stowage, deviation, negligent navi- gation, or the like, freight is due ; the amount of the damage being first deducted. The rules in respect to passage-money are quite analogous to those which regulate the payment of freight. Usually, how- ever, the passage-money is paid in advance. But it is not earned except by carrying the passenger, or pro rata, by carrying him only a part of the way with his consent. And if paid in advance, and not earned by the fault of the ship or owner, it can be recov- ered back. SECTION VII. CHARTER-PARTIES. The owner may let his ship to others, and the written indorsement by which this is done is called by an ancient name, a Charter-Party. The form of this instrument varies consider- ably, because it must express the bargain between the parties, and this of course varies with circumstances and the pleasure of the parties. An agreement to make and receive a charter, though not itself equivalent to a charter, will, if the pur- poses of the proposed charter are carried into effect, be CHARTER-PARTIES. 34I considered as evidence that such a charter was made and com- pleted. Generally, only the burden of the ship is let, the owner holding possession of her, finding and paying her master and crew and supplies and repairs, and navigating her as is agreed upon. Sometimes, however, the owner lets his ship as he might let a house, and the hirer takes possession, mans, navigates, supplies, and even repairs her. In the latter case, bills of lading are not commonly given by the ship-owner to the hirer ; but if the hirer takes the goods of other shippers, bills of lading are given by him to them ; but in the former, which we have said is much more common, bills of lading are usually given by the ship-owner to the charterer (or hirer), as they are in the case of a general ship. They are then, however, little more than evidence of the delivery and receipt of the goods, for the charter-party is the controlling contract as to all the terms or provisions which it expresses. The master is not authorized to sign bills promising to carry and deliver the goods for less freight than has been stipulated for. And if he signs such bills, and goods are shipped by the charterer, neither the charterer nor any person shipping the goods with a knowledge of the charter-party, could defend on account of the bills of lading, against the owner's claims under the charter-party. There is no particular form required for a charter-party. It should, however, designate particularly the ship, the voyage, the master, and the parties ; should describe the ship generally, and particularly as to her tonnage or capacity; should designate especially what parts of the ship are let, and what parts, if any, are reserved to the owner, or to the master, to carry goods, or for the purpose of navigation ; should describe the voyage, or the period of time for which the ship is hired, with proper par- ticularity ; should set forth the lay-days, the demurrage, the obligation upon either party, to man, navigate, supply, and repair the ship, and all other particulars of the bargain, for this is a written instrument of an important character, and cannot be varied by any external evidence. Finally, it should state, dis- tinctly and precisely, how much is to be paid for the ship, — 342 THE LA W OF SHIPPING. whether by ton, and if so, whether by ton of measurement or ton of capacity of carriage, or in one gross sum for the whole burden, — and when the money is payable, and how ; that is, in what currency or at what exchange, especially if it be payable abroad. The charter-party usually binds the ship and freight to the performance of the duties of the owner, and the cargo to the duties of the shipper. But the law-merchant would create this mutuality of obligation if it were not expressed. If the hirer takes the whole vessel, he may put the goods of other shippers on board (unless prevented by express stipula- tion) ; but whether he fills the whole ship or not, he pays for the whole ; and what he pays for so much of the ship as is empty is said to be paid for dead freight ; and if the master brought back the cargo because it could not be disposed of, the owner of the cargo would pay freight for bringing it back, although the char- ter-party said nothing about a return cargo. The freight is calculated on the actual capacity of the ship, unless she is agreed to be of a specified tonnage. If either party is deceived or defrauded by any statement in the charter-party, he has, of course, his remedy against the other party. If a charterer takes the goods of other shippers, payment by one of them to the master or ship-owner is a good defence against the claim of the charterer against him, for so much as the charterer was bound to pay the owner, but no more. The voyage may be a double one ; a voyage out, and then a voyage home ; or a voyage to one port, and thence to another. The question sometimes arises, whether any freight is payable if the ship arrives in safety out, and delivers her cargo there, and is lost on her return with the cargo that represents the cargo out. Of course, the parties may make what bargain they please, and the law respects it ; but in the absence of an agree- ment on this point, the courts would generally consider each voyage, at the termination of which goods are delivered, as a voyage by itself, earning its own freight. As time has become of the utmost importance in com- mercial transactions, both parties to this contract should be punctual, and cause no unnecessary delay; and for such delay the party injured would have his remedy against the party in CHARTER-PARTIES. 343 fault. The charter-party usually provides for so many "lay- days," and for so much "demurrage." Lay-days, or working- days, are so many days which the charterer is allowed, without paying for them, or paying only a small price, for loading or for unloading the vessel. These lay-days are counted from the arrival of the ship at her dock, wharf, or other place of discharge, and not from her arrival at her port of destination, unless other- wise agreed on by the parties ; and the usage of the port is often adverted to, to determine the place and manner of loading. In the absence of any custom or bargain to the contrary, Sun- days are computed in the calculation of lay-days at the port of discharge; but if the contract specifies "working lay-days," Sundays and holidays are excluded. If more time than the agreed lay-days is occupied, it must be paid for ; and " demur- rage " means what is thus paid. Usually, the charterer agrees to pay so much demurrage a day. If he agrees only to pay demurrage, without specifying the sum, or if so many working days are agreed on, and nothing more is said, it would, generally, be considered that the number of lay-days determined what was a reasonable and proper delay, and that for whatsoever was more than this the party in fault must pay a reasonable in- demnity. If time be occupied in the repairs of the ship, which become necessary without the fault of the ship-owner or master, or of the ship itself, that is, if they do not arise from her original unseaworthiness, the charterer pays during this time. The charterer or hirer must not abandon the vessel while he can keep her afloat, and suitably provided for the employment and destination for which she was hired ; and the ship-owner must be ready to pay all expenses and damages necessarily incurred for the purpose. But the charterer will not be bound by the charter-party to wait for the repair, unless the vessel can be repaired within a reasonable time. Many cases have arisen where the ship was delayed by differ- ent causes, and the question occurred, which party should pay for the time thus lost. I should say that no delay arising from the elements, as from ice, or tide, or tempest, or from any act of government, or from any real disability of the consignee 344 THE LA W OF SHIPPING. which could not be imputed to his own act, or to his own wrongful neglect, would give rise to a claim on the charterer for demurrage. Demurrage seems essentially due only for the fault or volun- tary act of the charterer ; but if he hires at so much on time, that is, by the day, week, or month, then, if the vessel be delayed by seizure, embargo, or capture, and the impediment is removed, and the ship completes her voyage, the charterer pays for the whole time. If she be condemned, or otherwise lost, this terminates the voyage and the contract. The contract may be dissolved by the parties, by mutual consent, or against their consent by any circumstance which makes the fulfillment of the contract illegal ; as, for example, by a declaration of war, on the part of the country to which the ship belongs, against that to which she was to go. So, either an embargo, or an act of non-intercourse, or a blockade of the port to which the ship was going, may either annul or suspend the contract of charter-party. And we should say they would be held to suspend only, if they were temporary in their terms, and did not require a delay which would be destructive of the purposes of the voyage. In reference to all these points, it is to be understood, that if the parties know or expect the circumstance when they make their bargain, and provide for it, any bargain they choose to make in relation to it would be enforced, unless it required one or other of the parties to do something prohibited by the law of nations, or the law of the country in which the parties resided, and to whose tribunals they must resort. SECTION VIII. GENERAL AVERAGE. Whichever of the three great mercantile interests — ship, freight, or cargo — is voluntarily lost or damaged for the benefit of the others, if the others receive benefit therefrom, they must contribute ratably to the loss. That is to say, such a loss is averaged upon all the interests and property which derive advantage from it. The phrase "general average" is used. GENERAL AVERAGE. 345 because a loss of a part is thus divided among all the other parts, and is sustained by all in equal proportion. This rule is ancient and universal. It would be held to apply to all our inland navigation, whether of river or lake, steam or canvas. There are three essentials in general average without the concurrence of all of which there can be no claim for a loss. First, the sacrifice must be voluntary ; second, it must be neces- sary; third, it must be successful. Or, in other words, there must be a common danger, a voluntary loss, and a saving of the imperilled property by that loss. The loss must not only be voluntary, but, what is indeed implied in its being voluntary, it must be for the purpose and with the intention of saving something else. And this inten- tion must be carried into effect ; for only the interest or property which is actually saved can be called on to contribute for that which was lost. The reason of what has been said must be distinctly under- stood, because the whole law of general average rests upon it. It is simply this : if any man's property be destroyed for the benefit of his neighbors, they who are helped by his loss ought to make up his loss. The law supposes that all who are interested in the ship or the cargo, or any part of either, agree together beforehand, that, if a sacrifice of a part can save the rest, that sacrifice shall be made, without stopping to ask who it is that suffers in the first place ; and that afterwards, if the sacrifice be beneficial to any for whom it was made, such persons shall bear their share of it, by contributions to him whose property was purposely destroyed for their good. And theif contributions shall be in proportion to the value of the property saved for them by the sacrifice. Any loss which comes within this reason is an average loss ; as ransom paid to a captor or pirate; not so, however, if he take what he will, and leave the ship and the rest ; for this there is no contribution. So, cutting away bulwarks or the deck, to get at goods for jettison, is an average loss. As is also the cutting away of the masts and rigging, or throwing overboard a boat to relieve the ship, or the loss of a cable and anchor, or either, by cutting the cable to avoid an impending peril. So is 346 THE LA W OF SHIPPING. a damage which, though not intended, is the direct effect and consequence of an act which was intended ; as, where a mast is purposely cut away, and by reason of it water gets into the hold, and damages a cargo of corn, this damage is as much a general average as the loss of the mast. But if a ship makes all sail in a violent gale to escape a lee shore, and so saves ship and cargo, but carries away her spars, etc. ; or if an armed ship fights a pirate or enemy, or beats him off at great loss ; the first is a common sea risk, the second a common war risk, and neither of them is a ground for average contribution. It is not considered prudent to lade goods on deck, because they are not only more liable to loss there, but hamper the vessel, and perhaps make her top-heavy, and increase the com- mon danger for the whole ship and cargo. Therefore, by the general rule, if goods on deck are jettisoned (which old mercan- tile word means cast overboard), they are not to be contributed for. But there are some voyages on which there is a known and established usage to carry goods of a certain kind on deck. This justifies the carrying them there, and then the jettison of them would entitle the owner to contribution. The repairs of a ship are for the benefit of the ship itself. But if a ship be in a damaged condition, at a port where she cannot be permanently repaired, and receive there a temporary repair, which enables her to proceed to another port where she may have a thorough repair, and thereby the voyage is saved, the cost of all of the first repair which was of no further use than to make the permanent repair possible, is to be contributed for by ship, freight, and cargo, because all these were saved by it. If a ship put into a port for necessary repair, and receive it, and the voyage is by reason thereof successfully prosecuted, the wages and provisions of the crew, from the time of putting away for the port, the expense of loading and unloading, and every other necessary expense arising from this need of repair, are an average. As to the expenses, wages, etc., during a capture, or a deten- tion by embargo, the claim for contribution is limited to those GENERAL AVERAGE. IA7 expenses which are necessarily and successfully incurred in saving or liberating the property. The loss or sacrifice must be necessary or justified by a reasonable probability of its necessity and utility. In former times the law guarded with much care against wanton and unnecessary loss by requiring that the master should formally consult his officers and crew, and obtain their consent before making a jettison. But this rule has passed away, and the practice is almost unknown ; and it has been held that where a consultation is had this merely proves that the jettison was delib- erately made, but does not prove the necessity of it. An "Adjustment of Average" means an account stated, which exhibits accurately all the losses to be contributed for, and all the property or interests bound to contribute, and all the persons entitled to receive contribution, and the amounts they should each receive, and all persons bound to pay contribu- tion, and the amounts they should each pay. It is the master's duty to have an average adjustment made at the first port of delivery at which he arrives. And an adjustr ment made there, especially if this be a foreign port, is generally held to be conclusive upon all parties. For the purpose of this rule, our States are foreign to each other ; as they are indeed for most purposes under the Law of Admiralty, or the Law of Shipping. And we should state the rule to be that an adjust- ment, when properly made, according to the law of the port where it is made, is binding everywhere. But a foreign adjust- ment might doubtless be set aside or corrected, for fraud or gross error. The master has the right of refusing delivery of the goods, until the contribution due from them on general average is paid to him. That is, he cannot hold the whole cargo, if it belong to different consignees, until the whole average is paid ; but he may hold all that belongs to each consignee, until all that is due from that consignee is paid. And the master may retain public property belonging to the United States until the average con- tribution due upon it has been paid. As the purpose of average and contribution is to divide the loss proportionably over all the property saved by it, the 348 THE LA W OF SHIPPING. whole amount which any one loses is not made up to him, but only so much as will make his loss the same percentage as every other party suffers. Thus, if there be four shippers, and each- has on board $S,ooo, and the ship is worth ^15,000, and the freight ^S.ooo, and all the goods of one shipper are thrown over, and everything else saved ; now the whole contributing interest is ^40,000, and the loss, which is $5,000, is one-eighth of this contributory interest. The shipper whose goods are jettisoned therefore loses one-eighth of his goods, and the remaining seven- eighths are made up to him, by each owner of property saved giving up one-eighth. There are usually in every commercial place persons whose business it is to make up Adjustments. As the losses usually consist of many items, some of which are general average, and some rest on the different interests on which they fell, and as the contributory interests must all be enumerated, and the value of each ascertained according to the general principles of law, and then the average struck on all these items, it is obvious that this must be a calculation requiring great care and skill ; and as the adjustment affects materially persons who may not be pres- ent, nor specially represented, — for all these reasons only those who are known to be competent to the work should be employed to make this adjustment. With us this work is generally done by insurance brokers. SECTION IX. SALVAGE. In the Law of Shipping and the usage of merchants, the word " salvage " has two quite different meanings. If a ship or cargo meets with disaster, and the larger part is destroyed or lost, and a part be saved, that which is saved is called the "salvage." Thus, if a ship be wrecked, and sold where she lies because she cannot be got off, her materials, wood and metal, her spars, sails, cordage, boats, and everything else about her which has any value, constitute the "salvage." And all of this, or the proceeds of it if it be sold by the master, belong to the owner or to the insurer, accordingly as circumstances may indi- cate ; and this question will be considered in the chapter on the Law of Insurance. SALVAGE. 34g Besides this, which is the primary meaning of the word, salvage has quite another signification. By an ancient and uni- versal law, maritime property which has sustained maritime disaster, and is in danger of perishing, may be saved by any person who can save it, whether they are or are not requested to do so by the owner or his agent. And the persons so saving it acquire a right to compensation, and a lien or claim on the property saved for compensation. The persons saving the property are called " salvors ; " the amount paid to them is paid for saving the property, or, as it was called, for the " salvage," meaning at first by this word the act of saving it ; but the habit of -paying so much for "salvage" led to understanding by "sal- vage " the money paid. Then it was said, the money was paid as salvage. This is now the more common use of the word. Thus a party bringing a saved vessel in demands " salvage," and estimates the salvage as so much ; and the owners are said to lose so much by salvage, or so much money is charged to salvage, and insurers are said to be liable for salvage, meaning in all these and similar cases the amount paid for saving, or for the act of salvage. This law is not only applicable to all maritime property, but is confined to that ; and is nearly unknown in reference to prop- erty saved from destruction on land. Because this principle is wholly and exclusively maritime, no court but that of Admiralty acknowledges and enforces it. The way in which it is enforced is this. Salvors have a lien on the property saved for their compensation ; that is, they have pos- session of it, and have a right to keep possession of it until their claim be satisfied. For this purpose they bring the ship or goods into the nearest port, and then make their claim of the owner or his agent, if they can find him, and he is within reach. If he cannot be found, or if he refuses what they think proper to demand, they employ counsel who are acquainted with the prac- tice in Admiralty courts, who present to the court in the district where the property is a libel, as it is called in Admiralty law, setting forth the facts, and the demand for salvage. Thereupon the court takes possession of the property, and orders notice to the owners, if possible. The owners thereupon appear, and 350 THE LA W OF SHIPPING. either resist all the demand for salvage, on the ground that no services were performed which entitled the party to salvage, or, admitting the service, they go to trial to determine whether any salvage, and, if so, how much, shall be paid. On this question, evidence and argument are heard, and the court then issues such decree as the case seems to require. Although services were rendered to the ship or cargo, or both, it does not follow that they were salvage services in the legal sense of the word. For certainly every person who helps another at sea does not thereby acquire a right to take posses- sion of the property in reference to which his assistance was given, and carry it into port. To give this right, the property, whether ship or cargo, must have been in the proper and rational sense of the term saved ; that is, there must have been actual disaster and impending danger of destruction ; and from this danger the property must have been rescued by the exer- tions of the salvors, either alone, or working together with the original crew. It is to be noticed, however, that neither the master nor officers nor sailors of the ship that is saved can be salvors, or entitled to salvage. The policy of the law-merchant forbids the holding out such a reward for merely doing their duty. It considers that sailors might be induced to let the vessel get into danger, if they could expect a special reward for getting her out of it. They are already bound by law to do all they possibly can do to save the ship and cargo under all circum- stances. But courts of admiralty have sometimes allowed gratuities to seamen for extraordinary exertions and very meritorious conduct. A passenger may be a salvor of the ship he sails in, because he has no especial duty in regard to it. If the Court of Admiralty find it to be a case for salvage, there are no positive and certain rules which determine how much shall be given, or in what proportions, to the different salvors. In every case the court are governed by the circum- stances of that case ; and even if a ship or cargo be entirely abandoned at sea, or, in maritime phrase, derelict, those who find it and take possession of it, and bring it in, take according to their merits, and not one-half, as used to be the rule. More SALVAGE. 351 than one-half is very seldom given ; but this has been done in a few extraordinary cases. If the property is not entirely derelict or deserted, and all hope of recovering it by the original crew given up, then less than half is usually given by way of salvage. How much less depends on the circumstances. It may be very little, or nearly half. The court will inquire how much time was lost by the salvors, how much labor the saving of the property required, and, most of all, how much exposure the salvors underwent, or how much danger they incurred. For it is an established rule, that in addition to a fair compensation for time, labor, and loss of insurance (for which see the chapter on Insurance), the court will give a further sum by way of reward, and for the purpose of encouraging others to make similar exertions and incur similar perils to save valuable property. And, in this point of view, all necessary exposure and danger are considered as entitled to liberal reward. If the court have not restored the property to its owners on their giving bonds with sureties to pay the salvage and costs, they order the property sold ; and they may do either of these things at any period of the proceedings. At the close, they decree the whole amount of salvage, and also direct particularly its distribution. A large part, usually about one-fourth, of the whole salvage, is allowed to the owners of the saving ship or ships ; another large part to her master, less parts to the officers, in proportion to their rank, and the residue is divided among the crew, with such discrimination between one and another as greater or less exertions or merit require. The trial is had, and the whole decree and this distribution of the salvage made, by the court alone, without a jury. But the statute of the United States, which gives our courts of Admiralty (which are exclusively United States courts, no State court having any Admiralty power) jurisdiction in Admi- ralty over our inland lakes and rivers, provides that disputed facts shall be tried by a jury, in most cases, at the request of either party. 352 THE LA W OF SHIPPING. SECTION X. THE NAVIGATION OF THE SHIP. I. Of the Powers and Duties of the Master. — The mas- ter has the whole care and the supreme command of his vessel, and his duties are co-equal with his authority. He must see to everything that respects her condition ; including her repair, supply, loading, navigation, and unloading. He is principally the agent of the owner ; but is, to a certain extent, the agent of the shipper, and of the insurer, and of all who are interested in the property under his charge. Much of his authority as agent of the owner springs from necessity. He may even sell the ship in a case of extreme necessity ; so he may make a bottomry bond which shall pledge her for a debt ; so he may charter her for a voyage or a term of time ; so he may raise money for repairs, or incur a debt therefor, and make his owners liable. All these, however, he can do only from necessity. If the owner be present, in person or by his agent, or is within easy access, or can be con- sulted, by telegraph or otherwise, without a loss of time which would be seriously injurious, the master has no power to do any of these things unless specially authorized. If he does them in the home port, the owner is liable only where, by some act or words, he ratifies or adopts the act of his master. If in a foreign port, even if the owner were there, he may be liable, on his master's contracts of this kind, to those who neither knew nor had the means of knowing that the master's power was superseded or qualified by the presence of the owner. The master being by the law-merchant the gejieral agent of the owner of the ship, no one dealing with him can be prejudiced by any private or secret limitations to his authority by the owner. Beyond the ordinary extent of his power, which is limited to the care and navigation of the ship, he can go, as we have said, only from necessity. But this necessity must be greater to justify some acts than for others. Thus, he can sell the ship only in a case of extreme and urgent necessity ; that is, only when it seems in all reason impossible to save her, and a sale THE NA VIGATION OF THE SHIP. 353 is the only way of preserving for the owners or insurers any part of her value. We say " seems ; '" for if such is the appearance at the time, when all existing circumstances are carefully considered and weighed, the sale is not void, if some accident, or cause which could not be anticipated, as a sudden change in the wind or sea, enables the purchaser to save her easily. Several such cases have occurred. So, to justify him in pledging her by bottomry, there must be a stringent and sufficient necessity ; but it may be far less than is required to authorize a sale. It is enough if the money is really needed for the safety of the ship, and cannot otherwise be raised, or not without great waste. So, to charter the ship, there must be a sufficient necessity, unless the master has express power to do this. But the necessity for this act may be only a mercantile necessity ; or, in other words, a certain and considerable mercantile expediency. So, to bind the owners to expense for repairs or supplies, there must also be a necessity for them. But here it is suffi- cient if the repairs or supplies are such as the condition of the vessel, and the safe and comfortable prosecution of the voyage, render proper. So the master — unlike other agents, who have generally no power of delegation — may substitute another for himself, to discharge all his duties, and possess all his authority, if he is unable to discharge his own duties, because, in that case, the safety of the ship and property calls for this substitution. Generally, the master has nothing to do with the cargo between the lading and the delivery. But, if the necessity arises, he may sell the cargo, or a part of it, at an intermediate port, if he cannot carry it on or transmit it, and it must perish before he can receive specific orders. So, he may sell it, or a part, or pledge (or hypothecate) it, by means of a respondentia bond, in order to raise money for the common benefit. A bond of respondentia is much the same thing as to the cargo that a bottomry bond is as to the ship. Money is borrowed by it, at maritime interest, on maritime risk, the debt to be discharged by a loss of the goods. But it can be made by the master only on even a stronger necessity than that required for bottomry ; 23 354 THE LAW OF SHIPPING. only when he can raise no money by bills on the owner, nor by a bottomry of the ship, nor by any other use of the property or credit of the owner. Indeed, it seems that, when goods are sold by the master to repair the vessel, it is to be considered as in the nature of a forced loan, for which the owner of the vessel is liable to the shipper, whether the vessel arrive or not. The general remark m.ay be made, that a master has no ordinary power, and can hardly derive any extraordinary power even from any necessity, except for those things which are fairly within the scope of his business as master, and during his employment as master. Beyond this he has no agency or authority that is not expressly given him. The owner is liable also for the wrong-doings of the master; but with the limitation which belongs generally to the liability of a principal for the torts of his agent, or of a master for the torts of his servant. That is, he is liable for any injury done by the master while acting as the master of his ship, but not for the wrongful acts which he may do personally when he is not acting in his capacity of master, although he holds the office at the time. Thus if, through want of skill or care while navi- gating the ship, he runs another down, the owner is liable for the collision. But the owner is not liable if the master embezzles goods which he takes on board to fill his own privi- lege, to have himself all the freight and profit. 2. Of Collision. — The general rules in this country in respect to collision are that the party in fault suffers his own loss and compensates the other party for the loss he may sustain. If neither is in fault, the loss rests where it falls. If both parties are in fault, the loss rests, where it falls, by the rules of the common law, but is equally divided in Admiralty. There are certain rules in regard to sailing, founded on the princi- ple that the ship which can change its course to avoid collision with least inconvenience must do so; and therefore that the ship that, has a fair or leading wind shall give way to one on a wind, or go under her stern ; and if vessels are approaching each other, both having the wind on the beam, or so far free that either may change its course in either direction, the vessel on the larboard tack must give way, and each pass to the right. THE NAVIGATION OF THE SHIP. 355 The same rule governs vessels sailing on the wind, and approach- ing each other, when it is doubtful which is to the windwar^L But if the vessel on the larboard tack is so far to windward, that, if both persist on their course, the other will strike her on the lee side, abaft the beam, or near the stern, in that case the vessel on the starboard tack should give way, as she can do so witji greater facility, and less loss of time and distance, than the other. Again, when vessels are crossing each other in opposite directions, and there is the least doubt of their going clear, the vessel on the starboard tack should persevere on her course, while that on the larboard tack should bear up, or keep away before the wind. It is also held that steam-vessels are regarded in the light of vessels navigating with a fair wind, and are always under obliga- tions to, do whatever a sailing-vessel going free or with a fair wind would be required to do under similar cii^cumstances. Their obligation e;ctends still further, because they possess a power to avoid the collision not belonging to sailing-vessels, even if they have a free wind, the master having the steamer under his com- mand, both by changing the helm and by stopping or reversing the engines. As a general rule, therefore, when meeting a sailing-vessel, whether close-hauled or with the wind free, the latter has a right to keep her course, and it is the duty oi the steamer to adopt such precautions as will avoid her. Vessels in tide-ways, or otherwise in , danger of collision, should hang out lights, but there is no positive rule or usage requiring the master, always, in the night-time, to keep a light exhibited on his vessel. In each case, whether common pru- dence required of the plaintiffs to have a light, and whether the omission of it amounted to negligence, must depend upon the darkness of the night, the number and situation of the vessels in the harbor, and all other circumstances connected with the transaction. This is a question of fact, within the province of the jury. A United States statute requires lights in the case of certain steamboats, and directs where they shall be placed on the vessel. All these rules should be observed, and neglect of them 356 THE LA W OF SHIPPING. would go far to imply a want of care or skill. But none of these rules are in this country so positive as to bind masters or ship- owners in all cases with the force of law. For any misdeed of the master, for which the owner is liable, this liability is limited in our own country, as well as in many others, to the value of the ship and freight. SECTION XI. THE SEAMEN. The law makes no important distinction between the officers, or mates, as they are usually called, and the common sailors. Our statutes contain many provisions in behalf of the seamen, ^nd in regulation of their rights and duties, although the con- tract between them and the ship-owner is in general one of hiring and service. They relate principally to the following points: ist, the shipping articles; 2d, wages; 3d, provisions and subsistence; 4th, the .seaworthiness of the ship; 5th, the care of seamen in sickness ; 6th, the bringing them home from abroad ; 7th, regulation of punishment. First. Every master of a vessel bound from a port in the United States to any foreign port, or of any ship or vessel of the burden of fifty tons or upwards, bound from a port in one State to a port in any other State, is required to have shipping articles, which articles every seaman on board must sign, under a penalty of twenty dollars for every person who does not -sign, and they must describe accurately the voyage, and the terms on which each seaman ships. Courts will protect seamen against uncertain or catching language, and against unusual and op- pressive stipulations. And the shipping articles ought to declare explicitly the ports of the beginning and of the termination of the voyage. If a number of ports are mentioned, they are to be visited only in their geographical and commercial order, and not .revisited unless the articles give the master a discretion. Admiralty courts enforce the stipulations if they are fair and legal, or disregard them if they are otherwise, and exercise a liberal equity on this subject; but courts of common law are more strictly bound by the letter of the contract. The articles SEAMEN. ,35- are generally conclusive as to wages ; but accidental errors or omissions may be supplied or corrected by either party, by parol. Second. Wages are regulated as above stated, and also by limiting the right to demand payment in a foreign port to one- third the amount then due, unless it be otherwise stipulated. Seamen have a lien on the ship and on the freight for their wages, which is enforceable in Admiralty. By the ancient rule, that freight is the mother of wages, any accident or misfortune which makes it impossible for the ship to earn its freight destroys the claim of the sailors for wages. The reason is, to hold out to the seamen the strongest possible inducement to enable the ship to carry the goods and earn the freight. Third. Provisions of due quality and quantity must be fur- nished by the owner, and double wages are given to the seamen when on short allowance, unless the necessity be caused by some peril of the sea, or other accident of the voyage. The master may at any time put them on a fair and proper allowance to prevent waste. Fourth. The owner is bound to provide a seaworthy vessel, and our statutes provide the means of lawfully ascertaining her condition at home or abroad, by a regular survey, on complaint of the mate and a majority of the seamen. But this very sel- dom occurs in practice. If seamen, after being shipped, refuse to proceed upon their voyage, and are complained of and arrested, the court will inquire into the condition of the vessel, and if the complaint of the seamen is justified, in a greater or less degree, v/ill discharge them, or mitigate or reduce their punishment. Fifth. As to sickness, our statutes require that every ship of the burden of one hundred and fifty tons or more, navigated by ten persons or more in the whole, and bound on a voyage without the limits of the United States, and also that vessels of seventy-five tons or more, navigated by six or more persons in the whole, bound from the United States to any port in the West Indies, shall have a proper medicine-chest on board. Moreover, twenty cents a month are deducted from the wages of every seaman to make up a fund for the maintenance of marine hospitals, to which every sick seaman may repair with- 358 THE LAW OF SHIPPING. out charge. In addition to this the general law-merchant requires every ship-owner or master to provide suitable medicine, medical treatment, and care, for every seaman who becomes sick, wounded, or maimed, in the service of the ship, at home or abroad, at sea or on shore ; unless this is caused by the miscon- duct of the seaman himself. The right to these things extends to the officers of the ship. Sixth. The right of the seaman to be brought back to his own home is very jealously guarded by our laws. The master should always present his shipping articles to the consul or commercial agent of the United States, at every foreign port which he visits, but is not required by law to do this unless the consul desires it. He must, however, present them to the first boarding officer on his arrival at a home port. And if, upon an arrival at a home port from a foreign' voyage, it appears that any of the seamen are missing, the master must account for their absence. If he discharge a seaman abroad with his consent, he must pay to the American consul of the port, or the commercial agent, over and above the wages then due, three months' wages, of which the consul gives two to the seaman, and remits one to the treasury of the United States to form a fund for bringing home seamen from abroad. This obligation does not apply where the seaman is discharged because the voyage is necessarily broken up by a wreck, or similar misfortune. But proper measures must be taken to repair the ship if possible, or to obtain her restora- tion, if captured. And the seamen may hold on for a reasonable time for this purpose, and if discharged before, may claim the extra wages. Our consuls and commercial agents may authorize the dis- charge of a seaman abroad for his gross misconduct, and he then has no claim for the extra wages. On the other hand, if he be treated cruelly, or if the ship be unseaworthy by her own fault, or if the master violate the shipping articles, the consul or commercial agent may direct the discharge of the seaman ; and he then has a right to these extra wages, and this even if the seaman had deserted the ship by reason of such cruelty. They hlay also send our seamen home in American ships, which are bound to bring them for a compensation not to exceed ten dol- PILOTS. 3S9 krs each, and the seamen so sent must work and obey as if originally shipped. It is of great importance that the powers and duties of our consuls abroad should be distinctly defined and well known. And Congress has recently enacted an excel- lent statute on this subject. If a master discharges a seaman against his consent, and without good cause, in a foreign port, he is liable to a fine of five hundred dollars, or six months' imprisonment. And a seaman may recover full indemnity or compensation for his loss of time, or expenses incurred by reason of such discharge. Seventh. As to the regulation of punishment, flogging has been abolished and prohibited by law. Flogging means the use of the cat, or a similar instrument, but not necessarily blows of the hand, or a stick or a rope. Desertion, in maritime law, is distinguished from absence without leave, by the intention not to return. This intention is inferred from a refusal to return. If he returns and is received, this is a con- donation (or forgiving) of the offence, and is a waiver of the forfeiture. If he desert before the voyage begins, he forfeits the advanced wages, and as much more ; but he may be apprehended by a warrant of a justice, and forcibly compelled to go on board, and this is a waiver of the forfeiture. By desertion on the voyage, he forfeits all his wages and all his property on board the ship, and is liable to the owner for all damages sustained in hiring another seaman in his place. Desertion, under the statute of the United States on this subject, is a continued absence from the ship for more than forty-eight hours without leave, and there must be an entry in the log-book of the time and circumstance. But any desertion or absence without leave, at a time when the owner has a right to the seaman's service, is an offence by the law-merchant, giving the owner a right tO' full indemnity. s:ection XII. PILOTS. An Act of Congress authorizes the several States to make their own pilotage laws, and questions under these laws are 36o THE LA W OF SHIPPING. cognizable in the State courts. No one can act as pilot, and claim the compensation allowed by law for the service, unless duly appointed. And he should always have with him his commission, which should always designate the largest vessel he may pilot, or that which draws the most water. If a pilot offers himself to a ship that has no pilot, and that is entering or leaving a harbor and has not already reached certain geo- graphical limits, the ship must pay him pilotage fees, whether his services are accepted or not. As soon as the pilot stands on deck, he has control of the ship. But it remains the mas- ter's duty and power, in case of obvious and certain disability, or dangerous ignorance or error, to disobey the pilot, and dis- possess him of his authority ; but the master should interfere with the pilot only in extreme cases. If a ship neglect to take a pilot when it should and can take one, the owners will be answerable in damages to shippers or others for any loss which may be caused by such neglect or refusal. Pilots are themselves answerable for any damage resulting from their own negligence or default, and have been held strictly to this liability. SECTION XIII. MATERIAL MEN. Maritime law calls by this name all persons employed to repair a ship or furnish her supplies. Such persons, and indeed all who work upon her, have a lien on the ship for their charges. There is, however, this important distinction. Material men, by Admiralty law, have a lien only on foreign ships, and not on domestic ships. But many of our States have by statute given this lien to material men on all ships without distinction ; as in New York, Pennsylvania, Massachusetts, Maine, Illinois, Indiana, Missouri, Alabama, and Michigan ; and in Louisiana the same lien exists imder the general Spanish law. It has been held that such a lien extends beyond mere repairs, — certainly to alterations, and perhaps to reconstruc- tion, — but not to original building, unless the statute includes ship-building. A laborer, employed in general work by a ship- wright or mechanic, and by him sometimes employed on the COMMERCIAL FORMS. 3S1 vessel, and sometimes elsewhere, gets no lien on the vessel for that part of the labor performed about it. These statute liens take precedence of the claims of all other creditors. It has been said in previous pages, that our States are for- eign to each other for most purposes under the law of Admi- ralty ; and they are so as to the lien of material men. There- fore, in States in which there is no statute on the subject, mate- rial men would have a lien for supplies or repairs for a vessel belonging to any other of our States, but not for a vessel belonging to the State in which the supplies were furnished or the repairs were made. See the chapter on Liens. (91.) Bill of Sale of Vessel. To all to whom these Presents shall come, Greeting : Know ye, that {name of seller) of the (town or city and county where he resides) in the State of owner ' (if the seller owns only a part of the vessel, here say what pari) oi the (ship, or what elsi it is) or vessel called the of the burden of tons, or thereabouts, for and in consideration of the sum of dollars, lawful money of the United States of America, to me {pr us, if more sellers than one) in hand paid, before the ensealing and deliv- ery of these presents, by (name of the buyer) the receipt whereof I (or we) do hereby acknowledge, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said (jiame of the buyer) and his executors, administrators, and assigns, the whole (or name the part) of said or vessel, together with the masts, bowsprit, sails, boats, anchors, cables, tackle, apparel, and furni- ture, and all other necessaries thereunto appertaining and belonging. The certificate of the enrollment of which said or vessel, is as follows : No. ENROLLMENT. In conformity to an Act of Congress of the United States of America, entitled " An Act for enrolling and licensing Ships and Vessels,'' etc., passed the i8th of February, 1793 ; and " An Act to regulate the Foreign and Coast- ing Trade on the Northern, North-eastern, and North-western Frontiers of the United States, and for other purposes,'' passed the 17th of June, 1864, and all the acts of the 7th July, 1838, 29th July, 1850, and 6th May, 1864 (name of the owner) having taken or subscribed the oath required by the said acts, and having sworn that he citizen of 362 THE LA IV OF SHIPPING. the United States, and sole owner of the or vessel, called the of whereof is at present master ; and as he ha citizen of the United States, and that the said or vessel was built at in the year i8 , as appears by And having certified that the said vessel has deck, mast , and that her length is feet, her breadth feet, her depth feet, her height feet, and that she measures tons and hundredths. Capacity under tonnage deck, Capacity between decks above tonnage deck. Capacity of enclosure on upper deck, . . Tonnage. jj,) that she has a figure-head {describing it). And the said having, agreed to the description and admeasurement above specified, and sufficient security having been given, in conformity with the terms of the said acts, the said has been duly enrolled at the port of Given under my hand and seal of office, at the port of this day of in the year one thousand eight hundred and Collector. To Have and to Hold the said or vessel, and appur- tenances thereunto belonging, to him [or them), the' said {name of the buyer) and his {or their) executors, administrators, and assigns, to the sole and only proper use, benefit, and behoof of him {or them), the said {name of the buyer) and his {or their) executors, administrators, and assigns forever; and I {or we) the said {name of tlie seller) ha and by these pres- ents do promise, covenant, and agree, for myself {or ourselves') tlwA my {or our) heirs, executors, administrators, and assigns, to and with the said {name of buyer) and with his {or their) heirs,, executors, administrators, and assigns, to warrant and defend the said or vessel, and all the other before-mentioned appurtenances against the lawful claims and demands of all and every person or persons whomsoever, and that I- {or we) ha good right and authority to sell and dispose of the same in manner aforesaid. In Testimony Whereof, The said has hereunto Set his hand and seal, this day of one thousand eight hundred aiid. (Signature^ (Seal.) Sealed and Delivered in the Presence of COMMERCIAL FORMS. 363 State of '\ •ss. County. I, a Notary Public in and for the in the County of and State of , do hereby certify, that personally known to me as the same person whose name subscribed to the annexed instrument of writing, appeared before me this day in person, and aclcnowledged that signed, sealed, and delivered the said instrument or writing as frde and voluntary act, for the uses arid purposes therein set forth. Given under my hand and notarial seal, this day of A.D. r8 Notary Public. (92.) Mortgage of a Vessel. Know all Men Tjy these Presents-, That I {or we, giving the names and residence of all the mortgagors) am {or are) held and firmly bound unto {the names and residence of the mortgagee) in the just and full sum of dollars, lawful money of the United States of America, to be paid to the said or his (or their) executors, administrators, or assigns; for which payment well and truly to be made, I bind myself, my heirs, executors, and administrators firmly by these presents. Dated at this day of in the year one thousand eight hundred and Wliereas, {jiame of the mortgagee) has this day lent and advanced unto the said {name of the mortgagor) the sum of dollars on the body, tackle, and appurtenances of the or vessel called the of the burden of tons, or thereabouts; the said {name of the mortgagor) being the {owner) of the same. Now the Condition of this Obligation is sucii. That if the said {name of the mortgagor) shall pay of cause to be paid to the said {name of the Mortgagee) the surti of dollars (the amount loaned), and interest thereon on of before the day of in the year 18 then this obligation to be void ; otherwise, to femain in full force and virtue. And in consideration of and as security for said loan as aforesaid, the said {vessel, or ship, or steamer, as it may be) is by these presents assigned, pledged-, mortgaged, set over, and conveyed to the said heirs and assigns ; the certificate of the enrollment of which vessel is as follows, v\i. : {Enrollment as in the frevioics form of a Bill of Sale of a Vessel.) 364 THE LA IV OF SHIPPING. It being' Mutually trnderstood and Agreed, That in case the amount of said loan and interest, or any part thereof, according to the terms of these presents, shall remain due and unpaid to said {name of mortgagee) after the expiration of , the said {name of mortgagee) may take possession of said and appurtenances, and sell the same at public auction, in order to satisfy the amount then due, without any proceedings in court or otherwise, for the purpose of authorizing such sale, and thereupon may execute and deliver a sufficient bill of sale to transfer completely to any purchaser or purchasers all title and property in and to the said and appurtenances, to the said {name of mortgagor) as {owner) thereof, now belonging. The said {name of the mortgagee) thereupon to account to the said {name of the mortgagor) for any surplus of such sale, after paying all charges and expenses. And in case of such sale as aforesaid, the said {iiame of the mort- gagor) executors, administrators, or assigns, shall, whenever thereto re- quested, make, execute, and deliver to such purchaser or purchasers, another bill of sale of said and appurtenances, in which the enrollment shall be recited as above, for the transferring completely to said purchaser or purchasers all the {right), {interest), and {claim)., of said executors, administrators, or assigns, as {owner) of said . And in default of the prompt execution and delivery of such other bill of sale to such purchaser or purchasers, by the said when thereto requested, the said is hereby constituted and appointed the legal attorney of the said for the purpose of making, executing, and delivering such bill of sale, and the said hereby ratifies and confirms the act of the said as attorney for said purpose. And it is hereby further Agreed, That insurance shall be made at some office in on the said for the security of the said {name of the mortgagee) to an amount not less than the sum loaned as aforesaid, and the said {name of the ?iiortgagee) is hereby authorized to procure such insurance, at the expense of the said {name of the mort- gagor) if not seasonably obtained by him. {Signatured) {Seal.) Signed, Sealed, and Delivered in Presence of { Witness^ State of ■> >-ss. County of ) On the day of in the year one thousand eight hundred and before me personally came the individual described in, and who executed the foregoing instrument, and acknowledged that he executed the same. COMMERCIAL FORMS. 365 (93.) A Charter-Party. This Charter-Party, Made and concluded upon in the day of in the year one thousand eight hundred and between (name of the owner) owner of the of of the burden of tons or thereabouts, register measurement, now lying in the harbor of of the first part, and (name of the hirer) of the second part, witnesseth, that the said part of the first part, for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by the said part of the second part, do covenant and agree on the freighting and chartering of the said vessel unto the'said part of the second part, for the voyage from the port of on the terms following ; that is to say, — First. The said part of the first part do engage that the said vessel in and during the said voyage shall be kept tight, stanch, well-fitted, tackled, and provided with every requisite, and with men and provisions necessary for such a voyage. Second. The said part of the first part do further engage that the whole of said vessel (with the exception of the cabin, the deck, and the necessary room for the accommodation of the crew, and of the sails, cables, and provisions) shall be at the sole use and disposal of the said part of the second part during the voyage aforesaid ; and that no goods or merchandise whatever shall be laden on board, otherwise than from the said part of the second part, or agent, without consent, on pain of forfeiture of the amount of freight agreed upon for the same. Thi7d. The said part of the first part do further engage to take and receive on board the said vessel, during the aforesaid voyage, all such lawful goods and merchandise as the said part of the second part, or 'agents, may think proper to ship. And the said part of the second part, for and in consideration of the covenants and agreements to be kept and performed by the said part of the first part, do covenant and agree with the said part of the first part, to charter and hire the said vessel as aforesaid, on the terms following, that is to say : — First. The said part of the second part do engage to provide and furnish to the said vessel Second. The said part of the second part do further engage to pay to the said part of the first part, or agent, for the charter or freight of the Said vessel during the voyage aforesaid, in the manner following, that is to say: — It is further agreed between the parties to this instrument, that the said 366 THE LA W OF SHIPPING. part of die second part shall be allowed, for the loading and discharging of the vessel at the respective ports aforesaid, lay days as follows, that is to say: — and in case the vessel is longer detained, the said part of the second part agree to pay to the said part of the first part, deinurrage at the rate of Spanish milled dollars per day for each and every day so detained, provided such detention shall happen by default of the said part of the second part, or agent. It is further understood and agreed, that the cargo shall be received^ad delivered alongside within reach of the vessel's tackles. It is also further understood and agreed, that this charter shall commence when the vessel is ready to receive cargo at her place of loading, and notice thereof is given to the part of the second part, or to agent . To the true and faithful performance of all the foregoing covenants and agreements, the said parties, each to the other, do hereby bind themselves, their executors, administrators, and assigns, and also the said vessel, freight, tackle, and appurtenances; and the merchandise to be laden on board, each to the other, in the penal sum of In Witness Whereof, The said parties have hereunto interchangeably Bet their hands and seals, this day of i8 {Signatures) {Seals.) Signed, Sealed, and Delivered in the Presence of (Witnesses.) (94.) A Bill of Lading. Shipped, in good order and well conditioned, by {natne of the ship- per) on board the called the whereof is master, now lying in the port of and bound for To say -.-^{here describe or enumerate the parcels) being marked and numbered as in the margin, and are to be delivered in the like good order and condition, at the aforesaid port of (the dangers of the seas only excepted), unto {the name of the consignee) or to assigns, he or they paying freight for the said {here specify the rate of freight agreed to be paid) with primage and average accustomed. In Witness Whereof, The master or purser of the said vessel hath aflSrmed to bills of lading, all of this tenor and date ; one of which being accomplished, the others to stand void. Dated in the day of i8 {Signature^ COMMERCIAL FORMS. 367 (95.) Shipping Articles, in Common Use. TJnited States of America. It is agreed, between the master and sea- men, or mariners, of tlie (name of the vessel) of whereof is at present master, or whoever shall go for master, now bound from the port of , to And it is hereby expressly agreed, that should the said ship on the said voyage be seized, detained, or fined, for smuggling tobacco, or any other article, by one or more of the undersigned sailors, cooks, or stewards, they shall all be responsible for the damages thence resulting, and shall severally forfeit their wages, and all their goods and chattels on board, to the amount of such damage, and that the certificate of the person or persons who may seize, detain, or fine the said ship for smuggling, signed by him or them, and verified by the American consul at under his seal of office, shall be conclusive evidence of the facts therein stated, in all courts whatsoever, especially and as to the fact that smuggling had been committed, the indi- vidual or individuals by -whom the same had been committed, the amount of the fine imposed therefor upon the said ship, the incidental expenses thereon, and the number of days the said ship was detained in consequence thereof. No grog allowed, and none to be put on board by the crew ; and no profane language allowed, nor any sheath-knives permitted to be brought or used on board. That, in consideration of the monthly or other wages against each respec- tive seaman or mariner's name hereunder set, they severally shall and will perform the above-mentioned voyage : And the said master doth hereby agree with and hire the said seamen or mariners for the said voyages, at such monthly wages or prices, to be paid pursuant to this agreement, and the laws of the Congress of the United States of America : And they, the said seamen or mariners, do severally hereby promise and obhge themselves to do their duty, and obey the lawful commands of their officers on board the said vessel, or the boats thereunto belonging, as become good and faithful seamen or mariners ; and at all places where the said vessel shall put in, or anchor at, during the said voyage, to do their best endeavors for the preser- vation of the said vessel and cargo, and not to neglect or refuse doing their duty by day or night, nor shall go out of the said vessel on board any other vessel, or be on shore, under any pretence whatsoever, until the above-said voyage be ended, and the said vessel be discharged of her loading, without leave first obtained of the captain or commanding officer on board ; that in default thereof, he or they will be liable to all the penalties and forfeitures mentioned in the Marine Law, enacted for the government and regulation of seamen in the merchants' service, in which it is enacted, " That if any sea- man or mariner shall absent himself from on board the ship or vessel, with- out leave of the master or officer commanding on board, and the mate or other 368 THE LA W OF SHIPPING. officer having charge of the log-book shall make an entry therein of the name of such seaman or mariner, on the day on which he shall so absent himself ; and if such seaman or mariner shall return to his duty within forty-eight hours, such seaman or mariner shall forfeit three days' pay for every day which he shall so absent himself, to be deducted out of his wages ; butif any seaman or mariner shall absent himself for more than forty-eight hours at ' one time, he shall forfeit all wages due to him, and all his goods and chattels which were on board the said ship or vessel, or in any store where they may have been lodged at the time of his desertion, to the use of the owner or Owners of the said ship or vessel, and moreover shall be liable to pay him or them all damages which he or they may sustain by being obliged to hire other seamen or mariners in his or their place." And it is further agreed, that in case of desertion, death, or imprisonment, the wages are to cease. And it is further agreed by both parties, that each and every lawful com- mand which the said master or other officer shall think necessary hereafter to issue for the effectual government of the said vessel, suppressing immor- ality and vice of all kinds, shall be strictly complied with, under the penalty of the person or persons disobeying forfeiting his or their whole wages or hire, together with everything belonging to him or them on board the said vessel. And it is further agreed on, that no officer or seaman belonging to the said vessel shall demand or be entitled to his wages, or any part thereof, until the arrival of said vessel at the said vessel's final port of discharge, and her cargo delivered. And it is hereby further agreed, between the master, officers and seamen of the said vessel, that whatever apparel, furniture, and stores each of them may receive into their charge, belonging to the said vessel, shall be accounted for on her return ; and in case anything shall be lost or damaged, through their carelessness or insufficiency, it shall be made good by such officer or seaman, by whose means it may happen, to the master and owners of the said vessel. And whereas, it is customary for the officers and seamen, while the vessel is in port, or while the cargo is delivering, to go on shore at night to sleep, greatly to the prejudice of such vessel and freighters, be it further agreed by the said parties, that neither officer nor seaman shall, on any pretence what- ever, be entitled to such indulgence, but shall do their duty by day in dis- charge of the cargo, and keep such watch by night as the master shall think necessary to order relative to said vessel or cargo ; and whereas it frequently happens that the owner or captain incurs expenses while in a foreign port, relative to the imprisonment of one or more of his officers or crew, or in the attendance of nurses, or in the payment of board on shore for the benefit of such person or persons : now it is understood and agreed by the parties here- unto, that all such expenditures as may be incurred by reason of the forego- ing premises shall be charged to, and deducted out of the wages of, any offi- COMMERCIAL FORMS. jgn cer or such one of the crew by whose means or for whose benefit the same shall have been paid. And whereas, it often happens that part of the cargo is embezzled after being safely delivered into lighters, and as such losses are made good by the owners of the vessel, be it therefore agreed by these presents, that whatever officer or seaman the master shall think proper to appoint, shall take charge of her cargo in the lighters, and go with-it to the lawful quay, and there deliver his charge to the vessel's husband, or his representative, to see the same safely landed. That each seaman or mariner who shall well and truly perform the above- mentioned voyage (provided^always that there be no desertion, plunderage, embezzlement, or other unlawful acts committed on the said vessel's cargo or stores) shall be entitled to the payment of the wages or hire that may become due to him pursuant to this agreement, as to their names is severally affixed and set forth : Provided, nei ertheless, that if any of the said crew disobey the orders of the said master or other officer of the said vessel, or absent himself at any time without liberty, his wages due at the time of such dis- obedience or absence shall be forfeited ; and in case such person or persons so forfeiting wages shall be reinstated or permitted to do further duty, it shall not do away such forfeiture. It being understood and agreed, by the said parties, that parol proof of the misconduct, absence, or desertion of any officer or any of the crew of said vessel, may be given in evidence at any trial between the parties to this contract, any act, law, or usage to the contrary thereof notwithstanding. In Testimony Whereof, and for the due performance of each and every of the above-mentioned articles and agreements, and acknowledgment of their being voluntarily, and without compulsion or any other clandestine means being used, agreed to and signed by us, we have each and every of us here- unto affixed our hands, the month and day against our names as hereunder written. And it is hereby understood and mutually agreed, by and between the parties aforesaid, that they will render themselves on board the said vessel, on or before the day of i8 at o'clock in the noon. This is signed by all the officers and crew, under seventeen columns, which give the following particulars : Date of entry, names, stations, birthplace, age, height in feet and inches, wages per month, advance wages, advance abroad, hospital money, time of service in months and days, whole wages, wages due, sureties, witness. On the back of this instrument is usually a receipt in full in the following words. It should be remarked, however, that the sailor's discharge of all demands for assault and battery, or imprisonment, etc., is of little, if any, legal force. 24 370 THE LA W OF SHIPPING. We, tlie undersigned, late mariners on board the on her late voyage described on the other side of this instrument, and now perlormed to this place of payment, do hereby, each one for ourselves, with our signatures, acknowledge to have received of agent or owner of said the full sum hereunder set against our names ; being in full amount of our wages for our services, and all demands for assault and battery, or imprisonment, of whatever name or nature, against said her owners or officers, to the day or date here- under also set against our names. {Signatures^ (96.) « A Bottomry Bond. Know all Men by tliese Presents, That I (name of the master or of the owner if the Bond is made by him), now master and commander of the or vessel called the of the burden of tons, or thereabouts, now lying in the port of am held and firn.ly bound unto {name of the lender who is the obligee of the Bond) in the sum of lawful money of the United States of America, to be paid to the said or to certain attorney , executors, administrators, or assigns ; for which payment, well and truly to be made, I bind myself, my heirs, exec- utors, and administrators, and also the said vessel, her tackle, apparel, and furniture, firmly by these presents. Sealed with my seal, at this day of in the year of our Lord one thousand eight hundred and Whereas, The above bounden {name of the obligor) has been obliged to take up and borrow, and hath received of the said for the use of the said vessel, and for the purpose of fitting the same for sea, the sum of lawful money of the United States of America, which sum is to be and remain as a lien and bottomry on the said vessel, her tackle, apparel, and furniture, at the rate or premium of {state the rate of the maritime interest) for the voyage. In consideration whereof, all risks of the seas, rivers, enemies, fires, pirates, &c., are to be on account of the said {name of the lender). And for the better security of the said s\im and premium, the said master doth, by these presents, hypothecate and assign over to the said heirs, executors, administrators, and assigns, the said vessel, her tackle, apparel, and furniture. And it is hereby declared, that the said vessel, is thus hypothe- cated and assigned over for the security of the money so borrowed, and taken up as aforesaid, and shall be delivered for no other use or purpose' whatever, until this bond is first paid, together with the premium hereby agreed to be paid thereon. COMMERCIAL FORMS. 371 Now the Condition of this Obligation is such, That if the above bounden {the borrower) sljall well and truly pay, or cause to be paid, unto the said (the lender) the just and full sum of lawful money as aforesaid, being the sum borrowed, and also the premium aforesaid, at or before the expiration of days after the arrival of the said vessel at then this obligation, and the said hjrpothecation, to be void and of no effect, otherwise to remain in full force and virtue. Having signed and executed two bonds of the same tenor and date, one of which being accomplished, the other to be void and of no effect. {Signature) (Seat.) Signed, Sealed, and Delivered in the Presence of I do not give the form of a Respondentia Bond. This con- tract is now unusual, and is made only when some special emergency calls for it, and must then be framed to suit that emergency, and express the special terms of the bargain. The foregoing form, in connection with what is said of Respondentia Bonds in the text, and the points in which they resemble Bottomry Bonds and those in which they differ from them, will enable any one to frame a Respondentia Bond suited to most cases. (97.) Oath or Affirmation of Consignee or Agent. District and Port of Philadelphia. I (name of the consignee) do solemnly and truly swear (or affirm) that the invoice and bill of lading now presented by me to the collector of , are the true and only invoice and bill of lading by me received, of all the goods, wares, and merchandise, imported in the (name of the vessel) whereof is master, from for account of any person whomsoever, for whom I am authorized to enter the same : that the said invoice and bill of hding are in the state in which they were actually received by me, and that I do not know nor believe in the existence of any other invoice, or bill of lading of the said goods, wares, and merchandise 5 that the entry now dehvered to the collector contains a just and true account of the said goods, wares, and merchandise according to the said invoice and bill of lading ; that nothing has been, on my part, nor to my knowledge, on the part of any other person, concealed or suppressed, whereby the United States may be defrauded of any part of the duty lawfully due on the said goods, wares, and merchandise, and that if, at any time hereafter, I discover any error in the said invoice, or in the account now rendered of the said goods, wares, and merchandise, or receive any other 372 THE LA W OF SHIPPING. invoice of the same, I will immediately make the same known to the col- lector of the district And I do further solemnly and truly swear {or affirm) that, to the best of my knowledge and belief, {name and residence of the owner of the goods) is owner of the goods, wares, and merchandise, mentioned in the annexed entry ; that the invoice now produced by me exliibils the actual cost, or fair market-value, of the said goods, wares, and merchandise, all the charges thereon, and no other or different discount, bounty, or drawback, but such as has been actually allowed on the same. this day of i8 {Signature^ Before me, Collector. (98.) Custom House Power of Attorney. No. 201. Know all Men by these Presents, That I {name of principal) do make, constitute, and appoint {name of attorney) my true and lawful attorney for me, and in my name and stead, to enter in due form of law, at the Custom House in the city of all goods, wares, and merchandise, which have been imported or may hereafter be imported, by or which have arrived, consigned, or may hereafter arrive, consigned to , or in which or may be inleresied or concerned. And for me and in my name and stead to sign, seal, execute, and deliver aH and every bond and bonds which may be required to secure the duties thereon, or for the transportation or exportation of the same ; or any other bond or bonds requ red by the revenue laws or the regulations of the Treasury Department of the United States, or the collector of the customs of the district of relative to any such merchandise ; or which may be necessary to obtain the debenture and debentures, upon such of the said goods, wares, and merchandise as may be exported for me or on my account. To have, take, and receive all debenture certificates to be issued thereupon for me and in my name to indorse, assign, and transfer the same ; or have, take, and receive the mmeys due and to grow due thereon : And generally, as my attorney to do, transact, and perform all custom-house business, of what kind soever, in which I am or may be interested or concerned, as fully and effectually, to all intents and purposes, as I if present there in person could do ; also to set my seal to any instrument which may be necessary in the premises, and the same to acknowledge for me to be my deed ; and generally to do and perform all things relating to the premises, which I could 1 nrfully do, if personally present, and as fully and effectually to every intent artd pu'pose, although the same should seem to require more precise or special aulhurity than is herein expressed. And especially authorzini; and empowering my said attorney, for me and in my name and stead to sign, seal, execute, and COMMERCIAL FORMS. 373 deliver all bonds of indemnity and otiier specialties, and also all other documents which may be necessary for effecting the premises ; hereby ratify- ing all and whatsoever my said attorney may lawfully do by virtue hereof. And I hereby further authorize my said attorney at any time, and fiom time to time at his discretion, by proper letters of attorney, to substitute any other person or persons for himself in my place, and the same at his pleasure to revoke ; hereby giving to the substitute or substitutes, as fu'.l power and authority in the premises as is hereby given to my said attorney. And also hereby ratifying and confirming all and every act, matter, and thing that my said attorney or his substitute or substitutes may do in the premises, by virtue of these presents. And it is hereby declared and understood, that this power shall be and remain in full force and virtue until revoked by written notice given to the collector. In "Witness Whereof, I have hereunto set my hand and seal this day of 18 {Signature) {Seal.) Signed, Sealed, and Delivered in Presence of State of Be it Known, That on the day of 18 personally appeared and acknowledged before me the foregoing power of attorney to be free act and deed. In Testimony Wiereof, I have hereunto set my hand and seal of office the day of i8 (99.) Maritime Protest. UNITED STATES OF AMERICA. Notary. State of County of By this Public Instrument of Protest, Be it known, that on the day of in the year of our Lord one thousand eight hundred and before me, a Notary Public in and for the State of County of and dwelling in the city of , State of , duty commissioned and sworn, personally came and appeared {names of all the parties who make the protest, with a description of each of them, as to occupation and residence) which said appearers, after having been duly sworn by me^ihe said notary, upon the Holy Evangelists of Almighty God, voluntarily, freely, and solemnly declare and depose as follows, to wit: that the (name of the vessel, describing her generally), on the day of in the year 18 sailed from the port of 374 THE LA W OF SHIPPING. bound for the port of with a cargo of that when they started, as aforesaid, the said was stout, stanch and strong ; had her cargo well and sufficiently stowed and secured ; was well manned, tackled, victualled, apparelled and appointed ; and was in every respect fit for the voyage she was about to undertake : And thereafter, on the day of in the year i8 {Jiere must be set forth with some ininuteness the place of any accident or loss, and the circum- stances of the occurrence) Now, therefore, because of the premises, and as all the loss, damage and injury which already have or may hereafter appear to have happened or accrued to the said or her said cargo, has been occasioned solely by the circumstances hereinbefore stated, and cannot nor ought not to be attributed to any insufficiency of the said or default of him, the said his officers or crew ; he now requires me, the said notary, to make his protest and this public act thereof, that the same may serve and be and remain in full force and virtue, as of right shall appertain. And thereupon the said doth protest, and I, the said notary, at his special instance and request, do, by these presents, publicly and solemnly protest against winds, weather (az/^^a'^a/- ever else caused the loss, as fire, pirates, &r'c.), and against all and every accident, matter and thing, had and met with as aforesaid, whereby or by means whereof the said or her cargo, already has, or hereafter shall appear to have suffered or sustained damage or injury, for all losses, costs, charges, expenses, damages, and injury, which the said the owner or owners of the said or the owners, freighters or shippers of her said cargo, or any other person or persons concerned in either, already have or may hereafter pay, sustain, incur, or be put unto by, through, or on account of the premises, or fof which the insurer or insurers of the said or her cargo, is or are respectively liable to pay, or make contribution or average, accord- ing to custom, or their respective contracts or obligations ; so that no part of such losses and expenses already incurred, or hereafter to be incurred, do fall upon him, the said his officers and crew. We, (repeat here the names of the appearers) do solemnly swear that the foregoing statement is correct, and contains a true account of all the facts and circumstances of the case, to the best of our knowledge. (Signatures of all the appearers^ Thus Done and Protested, at my office, in the city of , this day of in the year or our Lord one thousand eight hundred and Notary Public, County of State of To all to whom these Presents shall come, I, Notary Public, duly commissioned and qualified, residing at , in the County of and State of , do hereby certify HOPV THE CONTRACT OF INSURANCE IS MADE. 375 that the foregoing, purporting to be a copy of the protest of the master and a part of the crew of the bearing date the day of last, is a true and correct copy of said protest, which was made before me, examined and compared with the original draft of the same, drawn up and recorded in my office, in Book page and following : In Testimony "Whereof, I have hereunto set my hand, and affixed my notarial seal, this day of A.D. 18 {Sigjtature) {Seal.) (100.) A Steamboat "Warrant, as used in the "Western States. Know all Men by these Presents, That we {name of debtor) as principal, and {names of owners of the stcatnboat) owners of the steamboat as security, are held and firmly bound unto {name of creditor) in the sum of dollars, for the payment of which we bind ourselves, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals, and dated this day of eighteen hundred and The Condition of the above Obligation is such, That, whereas, the said {name of creditor) as plaintiff has sued out of the office of justice of the peace, a warrant against the steamboat {name of the steamboat) returnable forthwith ; being on a demand for the sum of dollars, and cents. Now, if the said {jiavie of the debtor) shall satisfy the amount which shall be adjudged to be owing and due to the said plaintiff in the determina- tion of said suit, together with all costs accruing, then this obligation to be void, otherwise to remain in full force. {Signatures' {Seals.) Approved, {Sheriff or Constable.) CHAPTER XXVI. IHAEINE INSURANCE. SECTION I. HOW THE CONTRACT OF INSURANCE IS MADE. At the present day insurance is seldom made by individuals. Formerly, this was the universal custom in our commercial cities. Afterwards, companies were incorporated for the purpose of 376 MARINE INSURANCE. making insurance on ships and their cargoes ; and the manifold advantages of this method have caused it to supersede the other. But an insurance company is not bound to insure for all who offer, and it has been held that an action will not lie against insurers for combining not to insure for a certain person, how- ever malicious their motive may be. The contract of insurance binds the insurer to indemnify the insured against loss or injury to certain property or interests which it specifies, from certain perils which it also specifies. The consideration for this obligation on the part of the insurer is the premium paid to the insurer, or promised to be paid to him, by the insured. The instrument in which this contract is expressed is called a Policy of Insurance. But no instrument is essential to the validity of the contract ; for if the proposals of the insured are written in the usual way in the proposal book of the insured, and signed by their officer with the word "done," or "accepted," or in any usual way to indicate that the bargain is made, it is valid, although no policy be delivered ; and it would be construed as an insurance upon the terms expressed in the policy com- monly used by that company. If proposals are made, on either side, by letter, and accepted by the other party, also by letter, this is a valid contract of insurance as soon as the party accepting has mailed his letter to that effect, if he have not previously received notice of a with- drawal of the proposals. The form of the policy is generally that which has been used for many years both in England and in this country, with such changes and modifications only as will make it express more accurately the bargain between the parties. And for this pur- pose it may be and is varied at pleasure. It is subscribed only by the insurers ; but binds both parties. The insured are bound for the premium, although no note is given. The date may be controlled by evidence showing when it was made and delivered ; but if delivered after its date, it takes effect at and from its date, if that were the intention of the parties. It may be effected on application of an agent of the insured. HOIV THE CONTRACT OF INSURANCE IS MADE. 377 if he have full authority for this purpose ; which need not be in writing. But a mere general authority, even if it related to commercial matters, or to a ship itself, as that of a " ship's hus- band," is not sufficient. A party may be insured who is not named, if "for whom it may concern," or words of equivalent import, are used. But a party who seeks to come in under such a clause must show that he was interested in the property insured at the time the insur- ance was made, and that he was in the contemplation of the party asking insurance. The phrase " on account of owners at the time of loss," or an equivalent phrase, will bring in those who were intended, if they owned the property when the loss occurred, although there were assignments and transfers between the time of insurance and the loss. Each person whose several interest is actually insured by any such general phrase may demand or sue in his own name. If the nominal insured is described as "agent" generally, this is equivalent to "for all whom it may concern." And an insurance " for " will be read as for all whom it may con- cern, if that were intended. So, if the designation of the insured be common to many persons, the intention of the parties must decide for whom it is made. Whatever is written on any part of the sheet containing the policy, or even on a separate paper, if referred to or signed by the parties as a part of the policy, is thereby made a part of it. But things said by either party while making their bargain, or written on other paper, and not so referred to or signed, form no part of it. The policy may expressly provide that its terms shall be made definite, especially as to the property insured, by subsequent indorsements or additions. Thus, it is very common to insure property to a certain amount, "from A to B, on board ship or ships, as shall hereafter be indorsed on this policy." And when this or any equivalent phrase is used, the insured requests the insurers to indorse on the policy the name of the vessel, and the amount shipped, as soon as he has notice of it. Alterations may be made at any time by consent. But a material alteration by either party, without the consent of the other, renders the contract void ; although it was made honestly, 378 MARINE INSURANCE. in the hope or behef of its being assented to. A court of equity will correct a material mistake of fact. A policy may be assigned, and the assignee may sue in the name of the assignor. If the loss is made by the policy payable "to order" or "to bearer," it will then by negotiable by indorse- ment or delivery, but it is not certain that the transferee can even then sue in his own name. In New York and some other States, not only these assignees, but other assignees of debts or contracts, may sue in their own names. If the insured transfers the property, unaccompanied by a transfer of the policy with consent of the insurer, this dis- charges the policy, unless it was expressly made for the benefit of whoever should be owner at the time of the loss, as before stated. There is usually a clause to the effect that the policy is void if assigned without the consent of the insurers. But this does not apply to an assignment by force of law, as in a case of insolvency, or in a case of death. And after a loss has occurred, the claim against the insurers is always assignable like any other debt. And a seller who remains in possession of the property as trustee for the purchaser, or a mortgagor retaining possession, may retain the policy, and preserve his rights. SECTION II. THE INTEREST OF THE INSURED. The Contract of Insurance is a contract of indemnity for loss. The insured must, therefore, be interested in the prop- erty at the time of the loss. The value to be paid for may be agreed upon beforehand, and expressed in the policy, which is then called a valued policy ; or left to be ascer- tained by proper evidence, and the policy is then called an open policy. This valuation, if in good faith, is binding qji both parties, even if it be very high indeed. But 2, -wager policy, that is, one without interest, is void ; and although there be some interest, the valuation may still be so excessive as to be open to the objection that the interest is a mere cover, and that the contract is void because only one of wager. The valuation THE INTEREST OF THE INSURED. 370 is void if fraudulent in any respect ; as if it cover an illegal interest or peril. And in this case the fraud vitiates and avoids the whole contract, and the insured recovers nothing. And if the valuation is gross and excessive, fraud may be presumed. The insured may apply his valuation to the whole property, or to that part of it which he wishes to insure ; thus he may cause himself to be insured for one-half of a cargo, the whole of which is valued at ^20,000, or for one-half, which half is valued at ^20,000; and if the policy says, "Insured ^15,000 on half of the ship Scipio (or on her cargo), valued at ^20,000," whether it is meant that the whole ship (or cargo) is valued at ;^20,ooo, or the half only that is insured, will be determined by a reasonable construction of the language used. If he owns the whole, the valuation, in general, will be held to apply to the whole ; and only to a part, if he owns only a part. He may value one thing insured, and not another ; or may value the same thing in one policy, and not in another ; ' and then the valuation does not affect the policy which does not contain it. If only a part of the goods included in the valuation are on board and at risk, it applies to them in due proportion to their value. A valuation of an outward cargo may be taken as a valu- ation of a return cargo, substituted for the other by purchase, and covered by the same policy. And a valuation will cover the insured's whole interest in the thing valued, including the premium, unless a different purpose is expressed or indi- cated. A valuation of freight applies to the freight of the whole cargo, and if a part only be at risk, it applies in proportion. And it applies either to the whole voyage, or to freight earned .by voyages which form parts of the whole, as may be intended and expressed. If profits are insured as such, they are generally valued, but may be insured by an open policy. If they are valued, the loss of the goods on which the profits were to have been made, implies in this country a loss of the valued profits, without proof that there would have been any profit whatever ; it seems to be 38o MARINE INSURANCE. necessary in England to show that there would have been some profit, and then the valuation attaches. It is very common to insure profits, in fact, without saying anything about them, by a valuation of the goods sufficiently high to include all the profits that can be made upon them. In an open policy, where the value insured is to be deter- mined by evidence, the value of the property — whether ship or goods — which is insured, is its value when the insurance took effect, including the premium of insurance ; as the law of insurance intends indemnifying the assured as accurately as may be for all his loss. If a ship be insured, its value throughout the insurance is the same as at the beginning, with- out allowance for the effect of time upon it. And all its appurtenances, in a mercantile sense of this phrase, enter into its value. While the value of the property does not vary with time, the interest of the insured at the time of the loss (which may be the whole, or half, or any other part) is that on which he founds his claim. Thus, if an owner of a ship is insured ;^20,ooo on ship A. B., valued at $30,000, and afterwards sells half of the ship, and it is subsequently lost, he recovers only $10,000. But if he owned half originally, and insured that, and before the loss acquired the other half, he recovers only for the half insured. Generally, the value of goods is their invoice price, with all those charges, commissions, wages, etc., which enter into the cost to the owner when the risk commences. The drawback is not deducted ; and the expenses incurred after the risk begins, as for freight, etc., are not included. And the rate of exchange at the beginning of the risk is taken. SECTION III. THE INTEREST WHICH MAY BE INSUREP. A MERE, possibility or expectation cannot be insured, but any actual interest may be. If one has contracted to buy goods, he may insure them, and will recover if the property be in him at the time of the loss ; for if they are then destroyed, it will be THE INTEREST WHICH MA Y BE INSURED. 381 his loss. (For what is meant by the property being in him, see the chapter on Sales.) If one has taken on himself certain risks, or agreed to indem- nify another for them, he may insure himself against the same risks. The policy may express and define the interest in such a way that any change in the nature of it will discharge the insurance. If it is not so defined and declared, a change, as from the interest of an owner to that of a mortgagor, or of a mortgagee, will not defeat the policy. A mere indebtedness to a party on account of property gives the creditor no insurable interest; thus, one who repaired a house or a ship cannot insure the house or ship merely because the owner owes him ; but if the creditor has a lien on the prop- erty, this is an insurable interest. And, generally, every bailee or party in possession of goods, with a lien on them, may insure them. And a lender on bottomry or respondentia may insure the ship or goods. And any persons who have possession of property, or a right to possession, and may legally make a profit out of it, as factors on commission, consignees, or carriers, may insure their interest. If a mortgagee be insured, and recovers from the insurers, he, generally, at least, transfers to them the security for his debt, or accounts with them for its value ; because, to the extent of that security, he has met with no loss, and, if he did not transfer it, would recover his money twice. It should, however, be added that where a mortgagee, or one having a lien, insures his own interest in property, a payment of a loss to him by the insurers does not discharge the debt for which the mortgage or the lien is the security. Where, however, the mortgagee is trustee for the mortgagor, as where the mortgagor causes insur- ance to be made on the premises, payable to the mortgagee in case of loss, or where the mortgagee effects insurance at the expense of the mortgagor, with his consent, payment by the insurers would go in discharge of the debt. A poUcy usually adds to the description of the property, " lost or not lost." This phrase makes the policy retrospective ; and attaches it to the property if that existed when, by the terms of the policy, the insurance began, whether this were for a 382 MARINE INSURANCE. voyage or for a certain time, although it had ceased to exist when the policy was made. An interest which was originally valid and sufficient cannot be defeated by that which threatens, but does not complete an actual divestment of the interest in property ; therefore, not by attachment, or an execution for debt; nor by liability to seizure by government for forfeiture ; nor a right in the seller to stop the goods iti transitu ; nor capture ; because, after all these, the property may remain in or return to the insured. But sale on execution, actual seizure by government and for- feiture, stoppage in transitu, or condemnation by court as lawful prize, divest the property, and therefore discharge the insurance. The insurance never attaches if the interest is illegal origi- nally; and it is discharged if the interest becomes illegal subsequent to the insurance, or if an illegal use of the subject- matter of the insurance is intended. And any act is illegal which is prohibited by law, or made subject to a penalty. The effect would be the same if the policy opposes distinctly the principles and the purposes of law, as wagering policies do. Mariners, or mates, are not permitted by the law-merchant to insure their wages, but may insure goods on board, bought with their wages ; and one legally interested in the wages of a mariner may insure them ; as one to whom they are assigned by order or otherwise. A master may insure his wages, commis- sions, or any profit he may make out of his privilege. An unexecuted intention of illegality, if not distinctly acted upon, will not defeat a policy ; nor a remote and incidental ille- gality ; as smuggling stores on board, or not having on board the provisions required by law ; nor a change from legality to illegality, which cannot be proved or supposed to be known to the insured. And upon these questions, the court, if the case be balanced, will incline to the side of legality. A cargo may be insured which is itself lawful, but was purchased with the proceeds of an illegal voyage. If a severable part of a cargo or a voyage is legal, it may be insured, by itself, although other parts are illegal. But if a part of the whole property insured together is illegal, this avoids the whole policy. PRIOR INSURANCE. 383 A compliance with foreign registry laws is not necessary, and with our own probably is not, to sustain the insurance of an actual owner in good faith. Freight is a common subject of insurance. In common con- versation, this word means sometimes the cargo carried, and sometimes the earnings of the ship by carrying the cargo. The latter is the meaning in mercantile law, and especially in the law of insurance. It includes in insurance law the money to be paid to the owner of a ship by the shipper of goods, and also the earnings of an owner by carrying his own goods ; and the amount to be paid to the owner by the hirer of his ship, and also the profits of such hirer, either by carrying his own goods, or by carrying, for pay, the goods of others. An interest in freight begins as soon as the voyage is deter- mined upon, and the ship is actually ready for sea, and goods are on board, or are ready to be put on board, or are promised to be put on board by a contract which binds the owner of the goods to put them on board, for that voyage. If a ship is insured on a voyage which is to consist of many ' passages, and sails without cargo, but a cargo is ready for her, or contracted for her at the first port she is to reach and sail from, the owner has an insurable interest in the freight from the day on whifh she sails from his home port. If one makes advances towards the freight he is to pay, and this is to be repaid to him by the ship-owner if the freight is not earned, the advancer has no insurable interest in what he advances ; but if he is to lose it, without repayment, if the ship be lost or the freight not earned, he has an insurable interest. SECTION IV. \ PRIOR INSURANCE. Our marine policies generally provide for this by a clause to the effect that the insurer shall be liable only for so much of the property as a prior insurance shall not cover. The second covers what the first leaves, the third what the second leaves, and so on ; and as soon as the whole value of the property is covered, the remainder of that policy, and the subsequent poli- 384 MARINE INSURANCE. cies, have no effect. This priority relates not merely to the date of the instrument, but to the actual time of insurance. Sometimes the policy provides that the insured shall recover only the same proportion of the virhole loss which the amount insured in that policy is of the whole amount insured by all the policies on the whole property. Where no provision is made in the policies as to priority, all are insurers alike, but all together only of the whole value at risk. The insured, therefore, may recover of any one insurer at his election, and this insurer may compel the others to con- tribute to him in proportion to their respective insurances. Insurances may be not successive, but simultaneous, and then no clause as to prior policies has any application, for then no policy is prior to another, and all the insurances are liable pro rata. They are simultaneous, if said to be so in the policies, which is common ; or if made on the same day, and bearing the same date, and there is no evidence as to which was, in fact, first made. SECTION V. DOUBLE INSURANCE AND RE-INSURANCE. If there be double insurance, either simultaneously or by successive policies in which priority of insurance under these policies. Most of the phrases commonly used have been construed by the courts ; and generally quite strictly. A liberty to " enter" a port, or "touch " at a place, permits a ship to go in and come out, but, it, permits little delay, because for delay the word " stay" or "remain " is necessary. It is certain that no permission is necessary for any change of course or risk that is made for the saving of life, or even for the purpose of helping the distressed. Always provided, how- ever, that the change of course, or the delay, was' no greater and no longer continued than this cause for it, actually and ration- ally-considered, required. It is, however, equally well settled, that a change of course or of risk for the purpose of saving property is a deviation not justified by its cause. A delay for the purpose of towing a vessel is certainly a deviation, unless there are persons on board the vessel which is towed, and they can be saved in no' other way. Sometimes it is intended that a ship shall visit many ports, and even go backwards and forwards, at places between the port from which she- sails and that at which the voyage is finally to terminate. Such purposes as this are sometimes provided for by a policy on time ; and sometimes by express permission to go to and trade; at certain ports. If permission be given to enter and stop at a dozen differ- ent ports, the vessel may omit any of them, or the whole, but must visit: in the proper order all to which she does go. She cannot go back and forth. The substitution of a new voyage for that agreed upon is of course a deviation, and one thatcan seldom or never be justi- 4CO MARINE INSURANCE. fied by any necessity, so as to carry the insurer's liability on the new voyage. If an entirely new voyage is intended, and a vessel sails upon it, but in the same direction in which she would have gone on the insured voyages, the policy never attaches, and the premium is never earned, because the ship never sails on the insured voyage. But if the ship is intended to pursue the insured voyage to its proper terminus, but at a certain point of the voyage to deviate by going into another port, there is no deviation until that point is reached, and the deviation actually begun ; because it is certain that no mere intention to deviate discharges the insurers until it is carried into execution ; and they are liable for a loss happening before the deviation. SECTION XXIII. THE TERMINI OF THE VOYAGE, AND OF THE RISK. These must be distinctly stated, whether they be termini of time or place. A policy from to , or from B to , or from to B, would be void. Nor would it be any better if the termini were named with apparent distinctness, but in such wise as to mean nothing, or nothing sufficiently cer- tain. A policy takes effect from its date, if the bargain was then complete, although not delivered until afterwards. And it may be remarked, that, if there be an unreasonable delay in the sail- ing of the vessel, the policy never attaches, for the bargain is considered as annulled. A policy on a vessel " at " such a place attaches when she is there in safety. But if there were a policy " to " a place, and another was made out between the same parties "at," or "at and from," the same place, the law would presume that the par- ties intended that the second policy should attach whenever the first one ceased by the arrival of the ship, without reference to the condition of the ship or her peril at the time. A policy on goods attaches to them at the time when it would have attached to the vessel had she been insured. The extent which should be given to the meaning of the word " port " is sometimes a question of some difficulty ; but in general all TERMINI OF THE VOYAGE, AND OF THE RISK. 40 1 places are within a port which belong to it by mercantile usage and acceptance, although not within the same municipal or legal precinct. " At and from " covers a vessel in a port, as well as after she leaves it. " From " only covers the vessel after she gets under way. " At and from," applied to goods, does not cover them in the port when they are on shore and warehoused, nor until they become subject to marine risk, by being water-borne. They are, however, covered, not only when they reach the ship, but as soon as they are put on board of boats or lighters, or any other visual water conveyance to the ship. And if insured to a port, they continue covered after they leave the ship by any usual conveyance for the shore, until they are safely landed. The word " at," applied to an island or a coast, may embrace all the ports therein, and cover the ship while sailing from one to another. " To a port and a market," covers a voyage to the port, and thence to every place to which, by mercantile usage or reasonable construction, a ship may go thence in search of a market ; and even to return to that port, if honestly with intent to learn there where a market could be found. If the insurance be to " a port of discharge," this does not terminate if the vessel goes to a port for inquiry, or for needful refreshment or repair. If it be "a final port of discharge," the insurance ceases upon such parts of the cargo as are left at one port or another, and continues on the ship, and on all the goods on board, until arrival at the port where they will be finally dis- charged. It is generally provided in time policies, that, if the vessel be at sea at the expiration of the time agreed on, the risk shall con- tinue until her arrival at a port of discharge, or at her port of destination. If then, before the expiration of the time, she is actually at sea, or has broken ground for the voyage, or if, when the time expires, she is in a port of necessity or restraint, she is considered at sea, but not otherwise. The English policies and our own contain a provision that the insurance continues on the ship " until she shall be arrived ■ and moored twenty-four hours in safety ; " and on the goods until they be "landed," or " safely landed." 26 402 MARINE INSURANCE. Under this clause, the ship is insured until moored in safety, so far as the perils insured against are concerned, but not against the peculiar and local dangers of the port, or the possi- bility that a tempest there might injure her when moored; for these dangers continue to exist as long as she stays there, and the liability of the insurers would never terminate. If she enters the harbor, and, before she is moored, is blown off, or ordered into quarantine, she is insured until this delay ceases and she is safely moored in port. And if before or within the twenty-four hours a dangerous storm begins, but does no dam- age to her until after the expiration of the twenty-four hours, the risk has terminated, and the insurers are not liable. SECTION XXIV. TOTAL LOSS AND ABANDONMENT. The law of insurance recognizes an actual total loss, and also a constructive total loss. It is actual when the whole prop- erty passes away, as by submersion or destruction by fire. It is a constructive total loss when the ship or goods are partially destroyed, and the law permits the insured to abandon the salvage or whatever is saved, to the insurers, and claim from them a total loss. By "abandonment" is meant, in insurance law, the transferring of the property insured, or what is left of it, to the insurers. The word is used, because originally the insured gave up, renounced, or abandoned the property, saying to the insurers, we will have nothing more to do with it, and you may do with it what you like. And the word is still always used, although now it means a transfer. And in the law of insur- ance, a constructive total loss is a partial loss made total by an exercise of the right of abandonment. That is, the actual loss took from the insured a part, and the abandonment took the rest, and so they have lost all. A constructive total loss is some- times called a "technical" total loss. The abandonment, we say, transfers all that remains of the property to the insurers. If nothing remains, or if that which remains has no value, there need be no abandonment, and this is an actual total loss. TOTAL LOSS AND ABANDONMENT. 403 The insured never need make an abandonment if he chooses not to do so. And if from such choice or neglect he makes no abandonment, his claim against the insurers is still valid ; but it is a different claim from that which it would have been if he had abandoned, because it is now to be settled as a par- tial loss, of which we shall speak hereafter. For it is the purpose and effect of an abandonment to convert an actual partial loss into a constructive total loss. And if he makes an abandonment when he has no right to make it, such aban- donment is wholly inoperative, unless the insurers choose to accept it ; but if they accept it, they must settle the loss as a total loss. The topics in relation to this subject which we will consider are : — i. The necessity of abandonment. 2. The right of aban- donment. 3. The exercise of this right. 4. The acceptance of the abandonment. 5. The effect of the abandonment, or of the absence of abandonment. 1. Of the Necessity of Abandonment. — It is said, that if a ship be completely wrecked and reduced to "a mere congeries of planks and iron," or if she has not been heard from for a sufficiently long time, there need be no abandonment, and the insured may claim as for a total loss, without one. In either case, or any other case, if the insurers pay a total loss, they are entitled to whatever shall come to hand of the property insured. And it is usual, and we think more proper, to abandon in both of these cases. 2. Of the Right of Abandonment. — The insured cannot convert every partial loss, however small, into a total loss, by abandonment, transferring the damaged property to the insurers. But by a rule which is nearly universal in this country, and not unknown abroad, if the damage by a peril insured against exceed one-half of the value of the property insured, — whether ship, goods, or freight, — he may abandon the property to the insurers, and claim as for a total loss. But if the vessel actually reaches her destined port, she cannot be aban- doned, although the repairs would cost more than half of her value. When we speak in another section of partial loss, it will be 404 MARINE INSURANCE. seen that, by the established usage of this country, an allowance of " one-third, new for old," is always made. This means, that if a new thing were given for an old one because the old one had been injured, the insurer would be more than indemnified. The sails, for example, might be so new that they had lost little of their value ; or so old, that they were of no value. To avoid inquiring into each case, usage has adopted, as a fair average to apply to all cases, that the thing injured has lost one-third of its value. When it is replaced by repairs, the insured therefore loses one-third of the cost of repair, and the insurers pay two- thirds. Now our policies provide that there shall be no total loss by abandonment unless the injury exceed fifty per cent, when " esti- mated as for a partial loss ; " that is, one-third off. Consequently, the repairs necessary to restore the vessel to a sound condition must amount to more than seventy-five per cent, of her value when repaired (one-third of which, twenty-five per cent., being cast off, leaves fifty per cent.) before there can be an abandon- ment, which the insurers are bound to accept, and settle the loss as a total loss. The valuation in the policy, if there be one, generally determines the value on which this estimate is to be made. In New York and in Massachusetts, this seems to be distinctly held ; but the courts of the United States and of some of our States, incline to say that, whether the policy be valued or open, the value of the ship, the loss of one-half of which authorizes abandonment, is the actual value of the ship at the time the loss occurs, and that this value is to be proved by proper evidence. A loss by jettison, by salvage, by general average contribu- tion, by wages of sailors paid while they assisted in making the repairs, should be included in the fifty per cent. If the insured have lost a part of his goods by jettison, and have a claim for contribution which is not yet paid, the whole of his loss is to be included to make up the fifty per cent., and the insurers take the claim to contribution by abandonment. Thus, if his loss be by jettison of eight-tenths of his goods, it is eighty per cent, and if he has a claim for contribution in general average for FOI^M OF ABANDONMENT. 405 thirty-five per cent., this does not reduce his loss to forty-five per cent., so that he cannot abandon ; but lie may call his loss eighty per cent, and abandon, and by the abandonment transfer to the insurers his claim for thirty-five per cent. The expense of repairs is to be taken at the place where actually made, or where they must have been made, if made at all. If a sale be lawfully made by the master, under the authority from necessity which we have considered in the chapter on the Law of Shipping, this is a total loss, and the insured must account for the proceeds. 3. Of the Exercise of the Right of Abandonment. — As an abandonment has the effect of an absolute transfer of the property to the insurers, and is intended for this pu?^ose, it is obvious that it cannot be made by one who is not possessed of such title to the property, or such interest therein, as would enable him to make a valid transfer. There is no especial form or method of abandonment. But the proper and safe way is to do it in writing, and to use the word "abandon," or "abandonment," although other words of entirely equivalent meaning might suffice. It must be distinct and unequivocal, and state, at least in a general way, the grounds of the abandonment. The following would be a good and sufficient form : (101.) Abandonment. New York, January 9, 1878, 10 o'clock A. M. I have this day learned that my {or the) ship {or whatever the vessel is), insured by you {or of which you have insured the cargo or freight or ;profits, as the case may be), has been wrecked on her voyage from to {or has met with such or such a disaster, describing it generally), and that she now lies at {or that said cargo or what remains of it is now at )• And I do now and tereby abandon to you the ship, with her cargo and freight {or whichever of these interests was the subject of insurance), and shall claim payment of you as for a total loss. To the Insurance Company. {Signature^ If the abandonment be deficient in form, the insurers will 406 MARINE INSURANCE. waive any objection of this kind if they call for further proof, and otherwise act as if the abandonment were altogether sufficient. The insured may abandon at any time when the ship by a peril insured, is taken for an uncertain period from the master's control, and the voyage is broken up and cannot be renewed, unless at a cost which of itself gives this right. The existence of the right depends upon the actual state of facts at the time, and not upon the supposed facts. Nothing, however, gives the right of instant abandonment, without a faithful endeavor of the master to find, if he can, and use, if he can, some means of deliverance and safety. But if, when deliverec^ and restored to the master or owner, her damage amounts to more than half of her value, estimated as above stated, " as a partial loss," she may then be abandoned. If the precise voyage insured be broken up by a peril insured against, this justifies an abandonment, although the vessel might be put in condition to pursue a different voyage or render a different service. As the insurers, who take the salvage (or saved) property by abandonment, have a right to every possible opportunity to make the most of it, it follows as an invariable and universal rule, that the insured imist make an abandonment immediately after he receives the intelligence which justifies it; and if he does not, he will be regarded as having elected not to abandon, and no subsequent abandonment will have any effect. The abandonment may be made on information of any kind, if it be entitled to weight and credence. So even a general rumor, without specific intelligence to the insured, will authorize an abandonment, if the rumor seems to be well grounded and altogether credible. 4. Of the Acceptance of the Abandonment. — As there is no especial form or method of making an abandonment, so there is no regular and established form of accepting an aban- donment. Indeed, an acceptance, merely as such, or in so many words, is seldom made. And as the insurer's accepting is not necessary to give full effect to an abandonment which has been made on proper grounds, and in the right way and time, it is seldom asked for. TOTAL LOSS AND ABANDONMENT. am The acceptance of the abandonment may be inferred from words, or acts. The question has arisen whether it could be inferred" from mere silence ; and, in general, it cannot. " An insurer is not bound," says Mr. Justice Story, "to signify his acceptance. If he says nothing, and does nothing, the proper conclusion is, that he does not mean to accept it." The rule may be stated thus. If the insurer, with a suffi- cient knowledge of the facts, says or does that which induces an honest insured to believe that he has accepted the abandon- ment, and will pay the loss, and to act on that belief, it is an acceptance, and is so far binding on the insurer. But if he neither says nor does what ought to produce this belief, then he is at liberty to say and prove if he can that the insured had no right to make an abandonment, and that the claim is only one for a partial loss. 5. Of the Effect of Abandonment. — We regard it is an ancient, reasonable, and well-established rule, that, if insurers pay a§ for a total loss, this payment entitles them to full posses- sion of all that remains of the property insured, and also of all rights, claims, or interests which the insured has in or to or in respect of the property lost, and which, if he valued or enforced them himself, would, if added to the amount paid by the insurers, give him a double indemnity. Hence, if the insured has lost his goods by jettison, and has a claim for a general average contribution, and the insurers pay him for all his goods, they stand in his place, and acquire that claim for contribution which the loss of the goods gave him. And we should, very generally at least, extend this rule to the claim which a mort- gagee has on the mortgage for his debt. That is, if the insurers pay for the loss of the property which secures the debt, they acquire, to the extent of their payment, the mortgagee's claim against the debtor. By the abandonment, both the owner and the master become, to some extent, the trustees and agents of the insurers, in respect to the property abandoned ; and are bound to act, in relation to it, with care and honesty. Still, if the property, after abandonment, or after a loss for which there is to be an abandonment, be further lost or wasted, by the bad faith or 408 MARINE INSURANCE. neglect of the master, or of the consignee of the owner, while they continue to act as such, this loss must be made up by the owner, because, although they are, in a certain sense, agents of the insured, they are then agents of the owner, and he is responsible for them to the insured. Goods are totally lost if destroyed, or if so injured as to have little or no value for the purpose for which they are intended ; or if the voyage upon which the insurance on the goods was effected is entirely broken up. But a mere delay gives no right of abandonment. And, in addition to all this, the rule which permits abandonment if more than fifty per cent. be lost, of which we have already spoken, is applicable to goods, in this country ; subject, however, to the important qualification, that it does not apply if any substantial portion of the goods arrive at their destination uninjured ; or if the goods are insured "free from average." And the rule of abandonment, salvage, and transfer to the insurers, is the same in relation to goods as to the ship. If there be many several shipments all insured, there may be a total loss of one, a partial loss of another, and no loss of a third. SECTION XXV. GENERAL AVERAGE. This subject belongs primarily to the law of shipping, and is treated of in the chapter on the Law of Shipping. It comes within the scope of the law of insurance only when any of the property which is lost or saved is insured. If an owner of property is insured, and other property is sacrificed to save the insured property from a peril common to it and to the sacrificed property, the insured property must pay such indemnity to the owner of the sacrificed property as will make them suffer alike. And the amount thus paid or contribu- ted by the insured property is a loss by a sea-peril, for which the insurers are liable. On the one hand, the insurers of the sacrificed property are under an obligation to pay for the loss thus made or incurred voluntarily, because it was not only the right, but the duty, of PARTIAL LOSS. 409 the master and crew to destroy a part rather than let the whole perish. It was therefore a loss by a peril of the sea, although purposely caused for the benefit of others; and the insurers must pay fof it. On the other hand, the owners of the property sacrificed, acquire by its sacrifice a claim for contribution and indemnity ; and if the insurers pay them for their loss, they acquire their claim for contribution. And this they take advantage of, in some cases, by deducting it from the amount they pay, and in other cases by first paying all the loss, and then collecting all the contribution for their own benefit. We have already seen that the insurers cannot deduct the contribution for the purpose of bringing the loss below fifty per cent., and thereby prevent- ■ ing an abandonment. SECTION XXVI. PARTIAL LOSS. A PARTIAL loss is simply a loss of a part, and not of the whole. The principal questions relating to it arise out of the rule of one-third off, new for old, which has been already spoken of. We repeat the rule, with the reason of it. A ship sails to-day with new copper. Another sails with her copper nearly worn out. Both meet with peril which requires new coppering. The first is new coppered, and the insurers pay for it, and the insured gains nothing, because the copper on her was worth as much as it is now. The second is also coppered, and the insurers pay for it. But this ship gains nearly the whole value of the copper put on, because the old copper was worth very little. Now the whole purpose and principle of the law of insurance is to indemnify the insured, or make his loss good, and no more. Formerly they tried to do it by finding out in each case how much the old materials had lost of their value. But this was found so difficult, that it was agreed upon by merchants and insurers to average all the cases, and consider that all old materials had lost one-third of their value. And the rule is found to work well in practice. The first effect of this rule is, that the thing or the part lost or injured, whether it be new or old, worn out or not worn at 4IO MARINE INSURANCE. all, must be replaced or repaired in adaptation and conformity with the vessel, in the same way in which it would be if she were properly repaired at the owner's port, by his orders. This third part is generally deducted from dockage, moving the ship, and similar expenses, provided they are incidental to the main purpose of repair. The value of the old materials should be deducted from the expense of repair, before the third " new for old " is taken off. If a sea-peril makes it necessary to recopper a vessel, and the cost will be ^9,000, and her old copper is worth ^3,000, we should say that this should be deducted, leaving ^6,coo, for two-thirds of which only (^4,000), one-third b«ing off, new for old, the insurers would be liable. The other way v/ould be, to say the cost of repair is ^9,000, of which the insurers v/ould pay two-thirds ("one-third off"), or ^6,000; and then the insurers would be entitled to the $3,000 which her old copper brings. Then the loss of the insurers would be only ^6,000 less ;^3,ooo, or $3,000, instead of $4,000, which the insurers would lose on the first way. Insurers have tried to make the second way the law ; but the first way is now pretty well established. If an owner effects insurance on a part only of the value of the property insured, — as if for $5,000 on a ship valued at $10,000, — he is insured for half, and is his own insurer for the other half, and he recovers in the same proportion from the insurers in case of a partial loss. Thus, if there be a partial loss of sails and rigging, or of repairs, amounting, after one- third is deducted, to $2,000, one-half of this is the loss of the insurers, and they pay it to him, and one-half is his own loss. The insurer takes no part of the risk of the market, and his liability is the same whether that rises or falls, although this may make a great difference as to the amount lost by the insured. What goods have lost from their original invoice value is the amount which the insurer pays. Thus, if he insures $10,000 on goods of which that is the original value, and they are so far damaged by a sea-peril, that at the port of discharge they bring, or are worth, only half of what they would have brought if they had not been damaged, the insurers are liable for $S,ooo, or that half, although the goods thus damaged USUAL SUBJECT AND FORM OF THIS INSURANCE. 411 may bring in the market of arrival the whole of their invoice cost or more. And if they bring but a quarter of it, the insurers pay no more than one-half, because the rest of the loss is caused by the falling market. If the goods have sustained damage or loss by leakage, or by breakage, or by natural decay, or from inherent defect in quality, — that is, not by a sea-peril, — before the partial loss occurs, a proportional deduction should be made from the partial loss, as the insurers are liable only for the injury resulting from that loss, and not for any part of that which already existed when the loss took place, or which has occurred since from causes against which they did not insure. CHAPTER XXVII. FIRE INSURANCE. SECTION I. THE USUAL SUBJECT AND FORM OF THIS INSURANCE. This kind of insurance is sometimes made to indemnify against the loss by fire of ships in port ; more often of ware- houses, and mercantile property stored in them ; or of personal property in stores or factories, in dwelling-houses or barns, as merchandise, furniture, books and plate, or pictures, or live stock. But by far the most common application of this mode of insurance is to dwelling-houses. Like marine insurance, it may be effected by any individual who is capable of making a legal contract. In fact, however, it is always, or nearly always, in this country, and we suppose elsewhere, made by companies. There are stock companies, in which certain persons own the capital and take all the profits by way of dividends ; and mutual companies, in which every one who is insured becomes thereby a member, and the net profits, or a certain proportion of them, are divided among all the members in such manner as 412 FIRE INSURANCE. the charter or by-laws of the company may direct. Sometimes both kinds are united, in which case there is a capital stock provided, as a permanent guaranty fund, over and above the premiums received, and a certain part or proportion of the net profits is paid by way of dividend upon this fund, and the residue divided among the insured. Of late years the number of mutual fire-insurance compa- nies has greatly increased in this country, and much the largest amount of insurance against fire is effected by them. The principal reason for this is, undoubtedly, their greater cheap- ness ; the premiums required by them being, in general, much less than in the stock offices. For example, if the insurance is effected for seven years, which is a common period, an amount or percentage is charged, about the same as that charged by the stock companies, or a little more. Only a small part of this is taken in cash ; for the rest a premium note or bond is given, promising to pay whatever part of the amount may be needed for losses which shall occur during the period for which the note is given. More than this, therefore, the insured cannot be bound to pay, and it frequently happens that no assessment whatever is demanded ; and sometimes, where the company is well established and does a large business upon sound princi- ples, a part of the money paid by him is refunded when the insurance expires, or credited to him on the renewal of the policy, if such be his wish. The disadvantage of these mutual companies is, that the premiums paid and premium notes constitute the whole capital or fund out of which losses are to be paid for. To make this more secure, it is provided by the charter of some companies, that they shall have a lien on the land itself on which any insured building stands, to the amount of the premium. But while this adds very much to the trustworthiness of the premium notes, and so to the ' availability of the capital, it is, with some persons, an objection, that their land is thus sub- jected to a lien or incumbrance. There is another point of difference which recommends the stock company rather than the mutual company. It is that the stock company will generally insure more nearly the full value USUAL SUBJECT AND FORM OF THIS INSURANCE. 413 of the property insured ; while the mutual companies are gen- erally restrained by their charters from insuring more than a certain proportion, namely, from one-half to three-fourths of the assessed value of the property. It would follow, therefore, that one insured by a mutual company cannot be fully indemni- fied against loss by fire ; and may not be quite so certain of getting the indemnity he bargains for as if he were insured by a stock company. The method and operation of fire insurance have become quite uniform throughout this country ; and any company may appeal to the usage of other companies to answer questions which have arisen under its own policy ; only, however, within certain rules, and under some well-defined restrictions. In the first place, usage may be resorted to for the purpose of explaining that which needs explanation, but never to con- tradict that which is clearly expressed in the contract. And no usage can be admitted even to explain a contract, unless the usage be so well established, and so well known, that it may reasonably be supposed that the parties entered into the con- tract with reference to it. And not only the terms of the con- tract must be duly regarded, but those of the charter or act of incorporation. In regard to the execution of a fire policy, amd what is necessary to constitute such execution, we say that delivery is not strictly necessary, and a signed memorandum may be suffi- cient, or, indeed, an oral bargain only, and that this insurance may be effected by correspondence, and that the contract is completed when there is a proposition and assent, as we hav6 already said in reference to marine insurance. It has been held in an action on a fire policy, as doubtless it would be on a marine policy, that a memorandum made on the application book of the company by the president, and signed by him, was not binding, where the party to be insured wished the policy to be delayed until a different adjustment of the terms could be settled, and after some delay was notified by the company to call and settle the business, or the company would not be bound, and he did not call ; because there was here no consummated agreement. So, too, a subsequent adop- 414 FIRE INSURANCE. tion or ratification of a policy made by an agent is equivalent, either in a fire or marine policy, to the making originally of the contract. SECTION II. THE CONSTRUCTIOX OF POLICIES AGAINST FIRE. It is sufficient if the words of the policy describe the persons, the location, and the -property, with so much distinctness that the court and jury have no difficulty in determining their iden- tity with a certainty which prevents any real and substantial doubt. In the construction of this as of other contracts, the inten- tion of the parties is a- very important and influential guide; but it must be the intention as expressed; for otherwise, a con- tract which was not made would be substituted for that which Was made ; and evidence from without the contract would be permitted to vary and to contradict it. Thus, where stock in trade, household furniture, linen, wearing-apparel, and plate were insured in a policy, the court held that the term "linen" must be confined to "household linen," and would not include linen drapery goods purchased on speculation. In a case where the ' policy required that the houses, buildings, or other places where goods are deposited and kept, shall be truly and accurately described, and the place was described as the dwelling-house of the insured, whereas he occupied only one room in it, as a lodger, this description was held sufficient. It was held in another case, that the insurance by an inn- keeper against fire of his "interest in the inn and offices," does not cover the loss of profits during the repair of the damaged premises. And in another, the words "stock in trade," when used in a policy of insurance in reference to the business of a mechanic, as a baker, were held to include not only the materials used by him, but the tools, fixtures, and implements necessary for the carrying on of his business ; and the words in question were held to have a broader application to the business of mechanics than to that of merchants. A policy upon wearing-apparel, household furniture, and the stock of a grocery, covers linen sheets and shirts actually laid in CONSTRUCTION OF POLICIES AGAINST FIRE. 415 for family use, and such as were laid in for sale or traffic in the usual way, in the store ; but not such as, being smuggled, were concealed and intended for secret sale. There is no material difference in respect to mistake, or the correction of it, between fire-policies and marine-policies ; and the law on this subject in relation to the latter has already been stated. And the same remark may be extended to the rule respecting the admission, as a part of the contract, of a memo- randum on the back of the policy, or attached to it by a wafer, and neither referred to in the policy itself, nor signed by the insurer. It is a general rule with our mutual insurance companies, that every one who is insured becomes a member of the com- pany. And it follows, necessarily, that every insured party is bound by all the laws and rules of the company, as by laws and rules of his own making. The mutual fire-insurance companies, by a law or rule which is perhaps universal, require that an application shall be made in writing; and this written application is after a peculiar form, prescribed by the rules. It always contains certain definite statements, which relate to those matters which affect the risk of fire importantly. In each form of application sundry ques- tions are put, which are quite numerous and specific, and are those which experience has suggested as best calculated to elicit all the information needed by the insurers for the purpose of estimating accurately the value of the risk they undertake. Specific answers must be given to all these questions. And this application, with all these statements, questions, and answers, is expressly referred to in the policy, and made a part of the contract. It is common to state in the printed part of the formal appli- cation, that it is made on such and such conditions ; and these usually follow those statements which are deemed the most material in estimating the risk. These would be considered as express conditions, and therefore the substantial truth of all of them is a condition precedeiit to any right of indemnity in the insured party. By the legal phrase condition precedent, is meant 4i6 ' FIRE INSURANCE. a condition which must be fully complied with before the con- tract can take effect. Hence, if any of these statements are false, the policy will be void. Sometimes there is no distinct application in writing, but the policy itself states the facts relied upon. For this purpose it contains many blanks, which are filled up according to the cir- cumstances of each case. It may happen that what is written in these places may be inconsistent with what is printed ; and then it is a general rule that what is written prevails, as that is more immediately and specifically the act of the parties, and may be supposed to express their precise purpose better than the printed phrases which were prepared without especial refer- ence to any particular case. But this rule would not be applied where it would obviously operate injustice. Policies of fire insurance, especially of mutual companies, often contain a scale of premiums, as calculated upon different classes of buildings, of stocks in trade, or other property, in conformity with what is thought to be the greater or less risk of fire in each case. This is a matter of special importance ; and if a statement were made by an applicant which put his building or property into a class of which the risk and premium were less than for the class to which the building or property actually belonged, and in that way an insurance was effected at such less premium, the policy would undoubtedly be void, even if the false statement were made innocently. When certain trades or occupations, or certain uses of build- ings, or kinds and classes of property, are enumerated as " haz- ardous," or otherwise specified as peculiarly exposed to risk, the rule, TJie expression of one tiling excludes what is not expressed, is applied, and sometimes with severity. This is better illus- trated by marine insurance. Thus, in a case in New York, precisely in point, dried fish were enumerated in the memoran- dum clause as free from average, and " all other articles perish- able in their own nature." It was held that the naming of one description of fish implied that other fish were not intended ; and that the subsequent words, " all other articles perishable in their own nature," were not applicable, and did not repel this implication. The same rule would be applied, for the same reason, and in the same way, to cases of fire insurance. CONSTRUCTION OF POLICIES AGAINST FIRE. 417 If the printed conditions represent one class of buildings, or goods, or property, as more hazardous than another, it would not be competent for the insured, whose property was of that kind, to prove by other testimony that it was not more hazardous in fact. Moreover, a description of the property insured, as it is a description for a contract on time, is held to amount to an agreement that the property shall continue within the class where it is put, or at least shall not enter into another that is declared to be more hazardous, during the operation of the policy. There must, however, be a rational, and perhaps a lib- eral, construction of this rule. Thus, it does not apply where a single article, or one or two, are kept in a store as a part of the stock of goods, although that article, as cotton in bales, is among those enumerated as hazardous. So if the "storing of spirituous liquors " is prohibited, the keeping of wine or brandy in a private house for consumption, or even for sale by retail to boarders, would not discharge the insurers. In New York it was held that where oils and turpentine, which were classed among hazardous or extra-hazardous articles, were introduced for the purpose of repairing and painting the dwelling insured, and the dwelling was burned while being so repaired, the insurers were liable. But if the building is gen- erally appropriated to a more hazardous occupation than the proposals or the policy indicate, or if the jury find that the introduction of these goods materially increased the actual risk, evidence would be received as to the intention of the parties to the contract. And the true meaning of the contract and the intent of the parties would be considered. Thus, where the " storing " of certain goods was prohibited, as " hazardous," it was held that the having a pipe or two of such articles in the cellar, from which smaller vessels in the store were replenished, did not come within the meaning of the word "storing" in the policy, any more than would the keeping of such articles for home consumption in a dwelling-house insured by a similar policy. So a description of a house as " at present occupied as a dwelling-house, but to be hereafter occupied as a tavern, and privileged as such," is only permission that it should be a tavern, and creates no obligation to occupy and keep it as a 27 41 8 FIRE INSURANCE. tavern on the part of the insured. But ii the language is, " to be occupied as so or so, but not" in some other certain way, this restriction is a part of the bargain ; and, if the building is occupied in the way prohibited, the insurers are discharged. So if the premises are described as a " private residence," the insurance is not avoided by the fact that the. occupants moved out of the house, leaving it vacant, and not the " residence " of any one, unless the jury find that the risk was thereby materi- ally increased. But where the property was represented as a " tavern barn," and the insured permitted its occupation as a livery-stable, the policy was held to be discharged, although the keeper of the livery-stable was removable at the pleasure of the insured. Where a building insured by a company was rep- resented, at the time of effecting the insurance, as connected with another building on one side only, and before the loss happened it became connected on two sides, the policy was held not to be avoided unless the risk thereby became greater. The general subject of alterations of property under insur- ance against fire is not without difficulty. On the whole, how- ever, mere alterations, although expensive and important, do not necessarily and of themselves avoid the insurance or discharge the insurers ; but they have this effect, if they are found by the jury to increase the risk materially; or if they are specifically prohibited in the policy. Still other questions may arise where material alterations are. made, all of which are not easily disposed of. The following are instances. Suppose^ one gets his dwelling-house insured for seven years, truly describing it as having a shingled roof. After two or three years he determines to take off the shingles, but says nothing to the insurers about it. If he now puts on slates,. or a metallic covering which does not require soldering, he does not increase the risk ; nor is the work of putting on the new covering hazardous, and we see no grounds for its having any effect on the policy. But suppose the new metallic covering is secured by soldering. This is certainly a hazardous operation. And if the building takes fire in consequence of this operation, the insurers are certainly discharged. If the operation is conducted safely through, and the work CONSTRUCTION OF POLICIES AGAINST FIRE. 419, is entirely finished, we consider it clear that thisgrieater hazard for a time has no effect whatever on the policy after That time,, and after all the greater hazard has expired. But let us suppose that while this operation is going forward, and the house is thereby certainly exposed to an increase of risk, the house is set on fire by an incendiary, — without the slightest reference to this alteration, — and burns down. It is not, perhaps, settled, either by authority or practice, whether the insurers are or are not dis- charged. I am, however, of opinion that the principles of insur- ance would lead to the conclusion, that, if the house be burned frora a perfectly independent cause, during an increase of rislc incurred for good cause and in good faith, the insurers are not thereby discharged. It is, however, certain, that it is always* prudent to obtain the consent of the insurers to any proposed' alteration. If such consent be asked, and refused, we do not see that the insurers stand on any better footing, or the insured' on any worse one ; and if the alterations are made and a loss occurs, we should say that the insurers would not, generally at least, be discharged because of their refusal, unless they would have been discharged if the alteration had been rriade without their knowledge. For if they have a right to object or refuse, it could only be because the contract in effect prohibited this alteration ; and then their refusal was not wanted for their defence. And if they have no right to refuse, they can acquire no rights by the refusal. If the alteration be of a permanent character, and causes a material increase of the danger of fire, then it is a substantial breach of contract ; and we should hold that the insurers were discharged as soon as the alteration was made, and indeed as soon as the making of it, or preparations for it, as scaffolding or carpenter's work, materially increased the risk. And they are discharged equally, whether the fire be caused by the alteration, or by the work done, or by some wholly independent matter. The insured may make reasonable repairs without especial leave, and the insurers are liable, although the fire take place while the repairs are going on ; and even if it be caused by the repairs. 420 FIRE INSURANCE. It may be added, that our fire-policies now in use frequently give the insured the right of keeping the property in repair. The failure of the insured to repair a defect in the building, arising after the contract is made, does not prevent the insured from recovering unless he was guilty of gross negligence. SECTION III. THE INTEREST OF THE INSURED. Any legal interest is sufficient. And if it be equitable in the sense that a court of equity will recognize and protect it, that is sufficient ; but a merely moral or expectant interest is not enough. So one has an insurable interest in a house placed on another's land with that other's consent, but not if placed there without license or shadow of title. So, too, one who has made only an oral bargain with another to purchase the other's house, cannot insure it ; but if there be a valid contract in law, or if by writing or by part performance it is enforceable in a court of equity, the purchaser may insure. So, if a debtor assign his property to pay his debts, he has an insurable interest in it until the debts are paid, or until the property be sold. A partner may have an insurable interest in a building pur- chased with partnership funds, although it stands upon land owned by the other partner. A mortgagor may insure the whole value of his property, even after the possession has passed to the mortgagee, if the equity of redemption be not wholly gone. So he may if his equity of redemption is seized on execution, or even sold, so long as he may still redeem. And in case of loss he recovers the whole value of the building, if he be insured on it to that amount. A mortgagor and a mortgagee may both insure the same property, and neither need specify his interest, but simply call it his property. The mortgagee has an interest only equal to his debt, and founded upon it ; and if the debt be paid, the inter, est ceases, and the policy is discharged ; and he can recover no more than the amount of his debt. It has been held, that if a mortgagor is bound by his contract THE INTEREST OF THE INSURED. 42 1 with the mortgagee to keep the premises insured for the benefit of the mortgagee, and does Iceep them insured in his own name, the mortgagee has an equitable interest in or lien upon the pro- ceeds of the policy. One who holds property only in right of his wife may insure the property, even if his wife be only a joint tenant. And a tenant for years, or from year to year, may insure his interest, but would recover only the value of his interest, and not the value of the whole property. We have said that, generally, any one having any legal interest in property may insure it as his own. But there is one important exception to or modification of thi^ rule. By the charters of many of our mutual insurance companies, the com- pany has a lien, to the amount of the premium note, on all prop- erty insured. It is obvious, therefore, that no such description can be given, or no such language used, as would induce the company to suppose they had a lien when they could not have one, or would in any way deceive them as to the validity or value of their lien. In all such cases all incumbrances must be stated, and the title or interest of the insured fully stated in all those particulars in which it affects the lien. A trustee, agent, or consignee may insure against fire, as he* may against marine loss. Generally, the consignee is not bound to insure against fire, but may, at his discretion. He may insure, expressly, his own interest in them for advances, or the owner's interest. It has been held that a consignee may, by virtue of his implied interest and authority, insure, in his own name, goods in his possession against fire, to their full value, and recover for the benefit of the owner. And if the interest be not expressed, the policy will be construed as not covering the interest of the owners, if, upon a fair construction of the words and facts, it seems to have been the intention of the parties only to secure the consignee's interest. And an insurance against fire upon merchandise in a warehouse, "for account of whom it may concern," protects only such interests as were intended to be insured at the time of effecting the insurance. It is now common for a commission merchant to cover in one policy, in his own name, all the goods of the various owners 422 FIRE INSURANCE. who have consigned goods to him. It has been held, that the words "goods held on commission," in fire-policies, have an effect equivalent to the words " for whom it may concern," in marine-policies. A person having a lien on a building under a State law has an insurable interest in the building. A consignee of goods, sent to him, but not received, may insure his own interest in them. So, any bailee (which means any person to whom property has been delivered for any pur- pose) who has a legal interest in the chattels which he holds, although this be temporary and qualified, may insure the goods against fire. Thus a common carrier by land, who has a lien on the goods, and is answerable for them if lost by fire (unless it ;be caused by the act of God or the public enemy), may insure the goods to their full value against fire. The insurers must know whom they insure, for they may .have a choice of persons, and it is important to them to know whether they are to depend on the care and honesty of this man or that man. The insured must so describe the owner as not to deceive them on this point, and so he must the kind of owner- ship. Thus, if he aver an entire interest in himself, he cannot support this by showing a joint interest with another ; and if in his action he declare the latter, proof of the former is not sufficient. So, too, there must be actual authority to make the insur- ance. This may be express, or implied, in some cases, as it seems to be implied with the consignee, or the carrier, and per- haps, generally, with any one who has an actual possession of, interest in, and lien on, the property. But a tenant in common does not derive from his cotenancy authority to insure for his cotenant ; nor could a master of a ship or a ship's husband, merely as such, insure the owner's interest against fire. SECTION IV. DOUBLE INSURANCE. By this, the party originally insured becomes again insured. If, by a double insurance, the insured could protect himself over JVARRANTV AND REPRESENTA TION. 423 and over again, he might recover many indemnities for one loss. This cannot be permitted, not only because it is opposed to the first principles of insurance, but because it would tempt to fraud, and make it very easy. In this country, fire-policies usually contain express and exact provisions on this subject. They vary somewhat, but, generally, they require that any other insurance must be stated by the insured, and indorsed on the policy ; and it is a frequent condition, that each office shall in that case pay only a ratable proportion of a loss ; and it is often added, that, if such other insurance be not so stated and indorsed, the insured shall not recover on the policy. And it has been held that such a condi- tion applies to a subsequent as well as to a prior insurance ; or to an insurance of any part of the property covered by the other policy. Nor will a court of equity relieve, if sufficient notice and indorsement have not been made. But it has been held that a valid notice might be given to an agent of the company, who was authorized to receive applications and survey property pro- posed for insurance. In some instances the charter of the company provides that any policy made by it shall be avoided by any double insurance of which notice is not given, and to which the consent of the company is not obtained, and expressed by their indorsement in the policy. But this would not apply to a non-notice by an insured of an insurance effected by the seller on the house which the insured had bought, if this policy were not assigned to the buyer. SECTION V. WARRANTY AND REPRESENTATION. A WARRANTY is a part of the contract ; it must be distinctly expressed, and written either in or on the policy, or on a paper attached to the policy, or, as has been held, on a separate paper distinctly referred to and described as a part of the policy. Then it operates as a condition precedent ; that is, as a condition of the policy, which if it be not performed, the policy never takes effect ; if it be not performed, there is no valid contract ; nor can the non-performance be helped by evidence that the thing 424 FIRE INSURANCE. warranted was less material than was supposed, or, indeed, not material. It may be a warranty of the present time, or, as it is called, affirmative, or of the future, and then it is promissory. And it may be, although of the present and affirmative, a continuing warranty, rendering the policy liable to avoidance by a non- continuance of the thing which is warranted to exist. Whether it is thus continuing or not must evidently be determined by the nature of the thing warranted. A warranty that the roof of a house is slated, or that there are only so many fire-places or stoves, would, generally, at least, be regarded as continu- ing ; but a warranty that the building was five hundred feet from any other building, would not cause the avoidance of the policy if a neighbor should afterwards put up a house within one hundred fee.t, without any act or privity of the insured. We have seen, that statements made on a separate paper may be so referred to as to make them a part of the policy. And it is usual to refer in this way to the written application of the insured, and to all the written statements, descriptions, and answers to questions, which he makes for the purpose of obtaining insurance. But a fair and rational, or, in some cases, a liberal construction, will be given to such statements. It is quite certain that the word warranty need not be used, if the language is such to import unequivocally the same mean- ing. And an indorsement made upon the policy before it is executed may take effect as a part of it. A statement may be introduced into the policy itself, and be construed not as any warranty, but merely as a license or per- mission of the insurers that premises may be occupied in a certain way, or some other fact occur without prejudice to, the insurance. A representation, in the law of insurance, differs from a war- ranty, in that it is not a part of the contract. If made after the signing of the policy or the completion of the contract, it cannot of course affect it. If made before the contract, and with a view to effecting insurance, it is no part of the contract ; but if it be fraudulent, it makes the contract void. And if it WARRANTY AND REPRESENTATION. 425 be false, and known to be false by him who makes it, it is his fraud. To have this effect, however, it must be material ; and there is no better test or standard for this than the question, whether the contract would have been made, and in its present form or on its actual terms, if this statement had not been made and believed by the insurers. If the answer is, that the con- tract would not have been made if this statement had not been made, it is material ; otherwise, not. The general rule is, that the statements in the application on a separate sheet, have the effect only of representations, and do not avoid the policy unless void in a material point, or unless the policy makes them speci- ally a part of itself, and gives them the effect of warranties. A representation may be more certainly and precisely proved if in writing ; but it will have its whole force and effect if only oral. In some instances, by the terms of the policies, any mis- representations or concealments void the policy. And it is held that the parties have a right to make such a bargain, and that it is binding upon them ; and the effect of it would seem to be to give to representations the force and influence of war- ranties. There seems to be this difference between marine-policies and fire-policies. In the former, a material misrepresentation avoids the policy, although innocently made ; in the latter it has this effect only when it is fraudulent. This distinction seems to rest upon the greater capability, and therefore greater obli- gation, of the insurers against fire to acquaint themselves fully with all the particulars which enter into the risk. For they may do this either by thfe survey and examination of an agent, or by specific and minute inquiries. If a warranty is broken, however innocently, it avoids all policies, whether material or not. And this difference between a warranty and a representa- tion is very important. Concealment is the converse of misrepresentation. The insured is bound to state all that he knows himself, and all that it imports the insurer to' know, for the purpose of estimating accurately the risk he assumes. A suppression of the truth has the same effect as an expression of what is false. And the 426 FIRE INSURANCE. rule as to materiality and as to a substantial compliance is the same. Even the rumor of an attempt to set fire to a neighboring building should be communicated ; because the insurer should be informed of any unusual fact, or any circumstance relating to the building materially enhancing the risk. Insurers must be understood as knowing all those matters of common information that are as much within their reach as in that of the insured ; and these need not be especially stated. But any special circumstance, as a great number of fires in the neighborhood, and the probability or belief that incendiaries were at work, should certainly be communicated ; and silence on such a point — especially if the place of business of the insurers was at a considerable distance from the premises — would operate as a fraud, and avoid the policy. And any ques- tions asked must be answered, and all answers must be as full and precise as the question requires. If there were a provision in the policy that a certain fact, if existing, must be stated, silence in reference to it would avoid the policy, however imma- terial the fact. Concealment in an answer to a specific question can seldom or never be justified by showing that it was not material. Thus, in general, nothing need be said about title. But if it be inquired about, full and accurate answers must be made. Where the insurance company has, by the terms of the policy, a lien upon or interest in the premises insured, to secure the premium note, here it is obvious that any concealment of incumbrance or defect of title would operate as a fraud, and defeat the policy. But in all such cases it is probable that specific questions are put respecting the estate and title of the insured. It is often required that all buildings standing within a cer- tain distance of the property insured shall be stated ; but this might not always be considered as applicable to personal and movable property. Still, an insurance of chattels, described as in a certain place or building, would be held to amount to a warranty that they should remain there ; or rather it would not cover them if removed into another place or building, unless, by THE RISK INCURRED BY THE INSURERS. 427 some appropriate phraseology, the parties expressed their inten- tion that the insured was to be protected as to this property wherever it might be situated. It is not uncommon to insure goods that are in course of transit, against fire ; but then it is usual to name the places from which and to which the goods are passing. SECTION VI. THE RISK INCURRED BY THE INSURERS. At the time of the insurance, the property must be in existence, and not on fire, and not at that moment exposed to a dangerous fire in the immediate neighborhood ; because the .insurance assumes that no unusual risk exists at that time. The risk taken is that of fire.. And therefore the insurers are not chargeable if the property be destroyed or injured by the indirect effect of excessive heat ; or by any effect which stops short of ignition or combustion, when this heat is pur- posely applied, and the injury is caused by the negligence of the person in charge of it. Where, however, an extraordinary :fire occurs, the insurers are clearly liable for the direct effects of it, as where furniture or pictures are injured by the heat, although they do not actually ignite. And they are liable for the injury from water used to extin- guish the fire ; and for injury to or loss of goods caused by their removal from immediate danger of fire ; but. not if removed from a mere apprehension from a distant fire, even if it be reasonable; and not if the loss or injury might have been avoided by even so much care as is usually given in times of such excitement and confusion. In some instances, the policies require that the insured should use all possible diligence to preserve their goods ; and .such a clause would strength'en the claim for injury caused by an endeavor to save them by removal. So the insurers are liable for injury or loss sustained by the blowing up of build- ings to arrest the progress of a fire. Lightning is not fire ; and if property be destroyed by lightning, the insurers are not liable, unless there was also ignition ; or unless the policy expressly insures against light- ning. 428 FIRE INSURANCE. An explosion caused by gunpowder is a loss by fire ; not so is an explosion caused by steam. Whether, when the negligence of the insured or his servants is to be considered as the sole or direct cause of the fire or loss, the insurers can be held, has been somewhat considered. And as this is the most common and universal danger, and the very one which induces most persons to insure, there has been some disposition to say that no measure or kind of mere negligence can operate as a defence. And in effect this is almost the law. But if the loss be caused by negligence of the insured himself, of so extreme and gross a character that it is hardly possible to avoid the conclusion of fraud, the defence might be a good one, although there were no direct proof of fraud. That the fire was caused by the insanity of the insured should be no defence. SECTION VII. VALUATION. Valuation, precisely as it is understood in a marine policy, seldom enters into a fire-policy, — never, perhaps, in a policy made by any of those mutual companies who now do a very large part of the insurance of this country. And quite seldom is a building valued when insured by a stock company. If a loss happens, whether it be total or partial, the insurers are bound to pay only so much of the sum insured as will indemnify the assured. But, as care is always taken — and sometimes required by law — not to insure upon any house its whole value, it seldom happens, and, if the proper previous precautions are taken, should never happen, that any question of value arises in a case of a total destruction of a building by fire. But mutual companies are usually forbidden by their charter to insure more than a certain proportion of the value of a build- ing ; and this requires a valuation in the policy, which is con- clusive, for some purposes, against both parties. Of course, the insurers can never be held to pay more than the sum insured. And if their charter or by-lavvs permit a company to insure only a certain proportion of the value, as three-fourths, — on the one hand, if the company insure more than that proportion, as ALIENATION. , 429 $3,500 on property valued at ;^4,ooo, they are held to pay only 1^3,000, and the assured cannot show that the building was really worth more than ^4,000 ; and, on the other hand, the valuation, if not fraudulent, is conclusive against the insurers if the building is destroyed, and they cannot show, in defence, that the building was worth less. I know nothing to prevent the parties from making a valued policy, if they see fit to do so, although this has been questioned. It is not uncommon for companies who insure chattels, — as plate, pictures, statuary, books, or the like,^to agree on what shall be the value in case of loss. Sometimes the policy reserves to the insurers the right to have the valuation made anew by evidence, in case of loss. Then if a jury find a less valuation, the insurers pay the same proportion of the new value which they had insured of the former valuation. The value which the insurers or goods must pay is their value at the time of the loss. And it has been held, that £i fair sale at auction, with due precaution, will be taken to settle that value after the fire, provided the insurers have reasonable notice or knowledge that the auction is to take 'place. The valuation determines the amount which the insurers must pay only in case of total destruction. If the building is only injured by fire, the insurers may either repair it, or pay the cost of repairing it. SECTION VIII. ALIENATION. PoLrciES against fire are personal contracts between the insured and the insurers, and do not pass to any other party, without the express consent of the insurers. It is essential to the validity and efficacy of this contract, that the insured have an interest in the property when he is insured, and also when the loss takes place ; for otherwise it is not his loss, and he can have no claim for indemnity. If, therefore, he alienates the whole of his interest in the property before the loss, he has no claim ; and if he alienates a part, retaining a partial interest, he has only a partial and propor- tionate claim. 430 FIRE INSURANCE. After a loss has occurred, the right of the insured to indem- nity is vested and fixed ; and this right may be assigned for value, so as to give an equitable claim to the assignee, without the consent of the insurers. Policies against iire contain a provision that an assignment of the property, or of the policy, shall avoid the policy. So, generally, it is hardly worth while to inquire what right an assignee, without consent, would acquire at common law, or in equity, where there is no such provision. A dissolution of the partnership before loss, and a division of the goods, so that each partner owned distinct portions, was held to be in violation of a condition against "any transfer or change of title in the property insured." A conveyance by one insured, intended to secure a debt, will be treated in a court of equity as a mortgage, and there- fore it does not terminate the interest of the insured. A contract to convey is not an alienation. Nor is a conditional sale, where the condition must precede the sale, and is not yet performed. Nor is a mortgage, not even after breach, and perhaps entry for a breach, and not until foreclosure. Nor selling and iimnediately taking back. Sometimes alienation by mortgage is directly prohibited. If several estates are insured in one policy, and one or more are aliened (or conveyed away), the policy is void as to those only which are aliened. If many owners are insured in one policy, a transfer by one or more to strangers, without the act or concurrence of the other owners, will avoid the policy for only so much as is thus transferred. In practice, care should be taken to have all such transfers regularly made and notified, and the consent of the insurer obtained, fully authorized, and duly indorsed or certified, and all the rules or usages of the insurers in this respect complied with. SECTION IX. NOTICE AND PROOF. Where the policy requires a certificate of the loss, the pro- duction of it is a condition precedent to any claim for payment. ADJUSTMENT AND LOSS. 43 1 And it must be such a certificate as is required ; but a substan- tial compliance with its requirements is sufficient. So, too, if the notice is to be given fortliwith, there must be no unrea- sonable or unnecessary delay. And all the circumstances of the case are considered, in determining whether there was or was not due diligence. Where a certificate is required to be furnished " as soon as possible," it is still sufficient if it be. furnished within a reasonable time. But where the fire took place in November, and the account of loss was not furnished till the March following, it was held not to be a compliance with the conditions. Generally, this is a question for the jury. In fire-policies, as the premises may be supposed always apen to the inspection of the agents of the insurers, a. general notice of the fire will be enough. SECTION X. ADJUSTMENT AND LOSS. Insurers against fire are not held to pay for loss of profits, gains of business, or other indirect and remote consequences of a loss by fire. We do not know, however, why profits may not be expressly insured against fire, where it is not forbidden by, or inconsistent with, the charter of the insurers. There is one wide difference between the principle of adjust- ment of a marine policy and of a fire-policy. In the former, if a proportion only of the value is insured, the insured is con- sidered as his own insurer for the residue, and only an equal proportion of the loss is paid. Thus, if, on a ship valued at ;^,io,ooo, ^5,000 be- insured, and there is a loss of one-half, the insurers pay. only one-half of the sum they insure, just as if some other insurer had insured the other $5,000. But in a fire- policy, the insurers pay in all cases the whole amount which is lost by fire, provided only that it does not exceed the amount which they insure. Most of the fire-policies used in this country give the insurers the right of rebuilding or repairing premises destroyed or injured by fire, instead of paying the amount of the loss. If, under this power, the insurers rebuild the house insured, at a 432 FIRE INSURANCE less cost than the amount they insure, this does not exhaust their liability ; they are now insurers of the new building for the difference between its cost and the amount they have insured. And if the new building burns down, or is injured while the policy continues, the insured may claim so much as, added to the cost already incurred, shall equal the sum for which he was insured. It may be important to add, that, under our common mutual policies, the insured will also be liable for assessments for losses after the destruction of his building by fire, during the whole term of the policy. There is no rule in fire-insurance similar to that which makes a deduction, in marine-insurance, of one-third, new for old. Still, the jury, to whom the whole question of damages is given, are to inquire into the greater value of a proposed new build- ing, or of a repaired building, and assess only such damages as shall give the insured complete indemnity. Where insurers reserved a right to replace articles destroyed, if the insured refused to permit them to examine and inventory the goods that they might judge what it was expedient for them to do, such conduct on the part of the insured would be evidence to the jury of great weight, to prove an overstate- ment of loss. I have not thought it would be useful to give Forms of various policies. Applicants never make them, as they are always furnished by the insurance companies; each one having its own form, and using no other. But the following Forms, of immediate notice of loss, of a later and fuller statement under oath, with a magistrate's certificate, and assignments of policies, may be found useful. They must be all adapted, in practice, to the peculiar circumstances of each case. (102.) To the Fire-insurance Company. Take Notice, That on the day of inst. (or last) a fire broke out in the building No. in Street, in the city of {or otherwise describe the location), whereon I am insured by you, by your policy, No. the sum of dollars. I have not yet learned and do not know, in what way the fire was caused ; but as soon as I FORMS USED IN FIRE INSURANCE. 433 am able, I will give you further information on the subject. {If the insured or his agent knows, or has reasonable cause for supposing, how the fire was caught, he should say so, atid state what particulars he can.) The house was wholly {or partially) destroyed by fire ; and I shall claim a payment from you undfer your policy. Written and sent this day of in the year {Signature.) {Seal.) Witness to the signature and sending. {Signature of IViiness.) Some insurance companies, and, indeed, the express provi- sions of some policies, require that a sworn statement of the facts and circumstances of the loss, and the particulars of the claim, be given to the insurance company, with the certificate of a magistrate. I do not know that this course might not be always prudent. The form in which it is done must vary in each case, and be adapted to the peculiarities of that case. But the following Form will generally be a safe guide. (103.) To the Insurance Company. Whereas the said Insurance Company, by their policy numbered , and dated on the day of in the year caused me to be insured in the sum of dollars against loss or damage by fire to the following-described building ; that is to say {here describe or designate the building sufficiently to show cledrly where and what it was, taking the description from the policy, but not copying it at length). Now, I, the said {name of the assured) having been solemnly sworn, do depose and say,^- 1. That on the day of now last past, between the hours of and a fire broke out in said building, whereby the same was greatly damaged {or destroyed), and the said fire was, according to my best knowledge and belief, caused by {here set forth the catises so far as they are kftow?i, or supposed on reasonable grounds), and I aver that the said fire was not caused by me, or by my design and occurrence, or with any previous knowledge on my part, or in any manner attributable to me or to my agency, direct or indirect. 2. That I was interested in the said property in the following manner ; that is to say {here say whether the insured owned the property himself, or was a tenant of it, or a landlord, or mortgagor or mortgagee, or trustee, or how otherwise he was ititeresied). 3. That there was no other insurance against fire of the said property (or, if there was any other, stale what it was). 28 434 FIRE INSURANCE. 4. That the occupants of the building at the time of the fire were, so far as is known to me, the following persons {set forth the names of the occu- pants, the parts of the building occupied by each one, and the purpose for •which it was occupied ). 5. That the actual value of the building in dollars at the time of the fire, was, according to my best belief and judgment, dollars. i^If the property was personal, as goods, ftcrnititre, or the like, say, as may appear by the 'schedule annexed.) 6. That the whole of said value was lost by the lire ; and being more than the sum insured thereon, I now claim of said insurance company said sum of dollars. [Or if the building was injured, and not destroyed, then say that so much of the value — stating the amount — of said building was lost by the fire, inasmuch as the building, if repaired, cannot be restored to as good condition as before, for a less amount than that sum.) "Witness my hand at this day of in the year {Signature.) (Certificate to be appended to the foregoing^ State of ■ ss. County of I {name of the magistrate) a justice of the peace in and for said county {or what else may be his office), dwelling near to the property above mentioned, in the town (or city) of have investigated the circumstances attending the said fire, and am personally acquainted with the said {name of insured), whose character is good ; and I believe that the above statement to which the said {name of insured) has made path in my presence is true ; that the loss cannot be imputed to fraud or mis- conduct on his part ; and that he has suffered by the fire a loss of dollars. I am not in any way interested in the said property, or in the said policy, or any claim under the same. la Witness of all of which I have hereunto set my hand and my seal {of office, if he has an official seal), at this day of in the year {Signature of Magistrate.) {Seal.) (104.) Assignment of a Policy to be indorsed Thereon. I {name of insured) insured by the within policy, in consideration of a dollar paid to me by {name of theassign,ee)^.-ad.iQxoi\\^x%oa&. con- siderations, do hereby assign, and transfer to the said {name of the assignee) this policy, together with all the right, title, interest, and claim which I now have or hereafter may have, in, to, or under the same. FORMS USED IN FIRE INSURANCE. 435 Witness my hand this day of in the year {Signature^ {Witness.) It is always best to write this assignment on the policy itself ; but it may sometimes happen that this is not convenient or pos- sible ; the insured who wishes to make the assignment not hav- ing the policy within his possession or easy reach. Then the assured may use the following Form : (105.) Wliereas, the Insurance Company, by the policy, numbered and dated on day of in the year caused me to be insured against loss or damage by fire on a certain buildmg, being {designate the building by location or otherwise) in the sum of dollars ; now, I the said {natnex)/ the insured), in consideration of one dollar paid to me by {name of the assignee) and for other good consid- erations, have transferred and assigned, and do by these presents transfer' and assign unto the said {name of the assignee) the said policy of insurance, and all the right, title, interest, or claim, which I now have or ever may have, in, to, or under the same, and in and to any sum of money which now is or shall ever be payable thereon. Witness my hand this day of in the year {Signature.^ {Witness^ If the policy be on goods, or if it be not a fire-policy, but a marine-policy, or a life-policy, then the assignment must be made to conform to the facts. It is always best to get the assent of the insurance company to the transfer before it is made. And always the assignment, when made, should be exhibited without loss of time, to them or to their agent authorized to give their assent, and this assent to the assignment be obtained and written upon the policy, or, if that cannot conveniently be, on the assignment, and in the books of the insurance company. 436 LIFE INSURANCE. CHAPTER XXVIII. LIFE-INSXniANCE. SECTION I, THE PURPOSE AND METHOD OF LIFE-INSURANCE. If a insures B a certain sum payable at B's deatli to B's representatives, we have only the insurer and insured, as in other cases of insurance. But if A insures B a sum payable to B or his representatives on the death of C, although C is often said to be insured, this is not quite accurate ; more properly, B is the insured party and C is the life-insured. Life-insurance is usually effected in this country in a way quite similar to that of fire-insurance by our mutual companies. That is, an application must be first made by the insured ; and to this application queries are annexed by the insurers, which inquire, with great minuteness and detail, into everything which can affect the probability of life. These must be answered fully ; and if the insurer be other than the life-insured, there are usually questions for each of them There are also, in some cases, questions which should be answered by the physician of the life-insured, and others by his friends or relatives ; or other means are provided to have the evidence of the physician and friends. These questions are not precisely the same in the forms given out by any two companies ; and we do not speak of them in detail here. The rules as to the obligation of answering them, and as to the sufficiency of the answers, must be the same in life-insurance that we have already stated in the chapters on •Fire and Marine Insurance ; or rather must rest upon the same principles. And the same rules and principles of construction therein set forth would doubtless be applied to the question whether a contract had been made, or at what time it went into effect. THE PREMIUM. 437 SECTION II. THE PREMIUM. If the insurance be for one year only, or less, the premium is usually paid in money, or by a note, at once. If for more than a year, it is usually payable annually. But it is common to provide or agree that the annual payment may be made quar- terly, with interest from the day when the whole is due. Notfes are usually given ; but if not, the whole amount would be consid- ered due. If A, whose premium of ^loo is payable for 1878 on the 1st day of January, then pays ^25, and is to pay the rest quar- terly, but dies on the ist of February, the ^75 due, with interest from the ist of January, would be deducted from the sum insured. If the policy provides that the risk shall " terminate in case the premium charged shall not be paid in advance on or before the day at noon on which the same shall become due and payable," and the day of payment falls on Sunday, the premium is not payable until Monday, although the assured dies on Sun- day afternoon. Provision is sometimes made that a part of the premium shall be paid in money, and a part in notes, which are not called in unless needed to pay losses. The greater the accommoda- tion thus allowed, the more convenient it is, obviously to the insured, but the less certain will he be of the ultimate payment of the policy, because, in the same degree, the fund for the pay- ment consists only of such notes, and not of payments actually made and invested. There is a great diversity among the life- insurance companies in this respect. But even the strictest, or those which require that all the premiums shall be paid in money, usually provide also that an amount may remain overdue, with- out prejudice, which does not exceed a certain proportion — say one-half or one-third — of the money actually paid in on the policy^ This is considered, under all ordinary circumstances, safe for the company, because every policy is worth as much as this to the company. Or, in other words, it would always be profitable for the company to obtain a discharge of its obligation on a policy, by repaying the insured so small a proportion of what has been received from him. 438 LIFE INSURANCE. Taking a note would certainly be a waiver of immediate pay, meat, if not itself a payment. The premiums, after the first, must be paid on the days on which they fall due. If no hour be mentioned,, then it is believed that the insured would have the whole day, even to midnight. It is possible, however, that he might be restricte'd to the usual hours of business, and perhaps even to those in which the office of the insurers is open for business. Practically, the utmost care is requisite on the part of the assured, to pay his premium as soon as it is due ; and it is a wise precaution to pay it a little before. This is the only proper and safe course. But we believe it to be not unusual for the insurers to accept the premium if offered them a few days after, and continue the policy as if it were paid in season, provided no change in the risk has occurred in the mean time. And sometimes the rules of the company, and in some States the statutes, provide, that, if a policy be defeated by a non-pay- ment of the premium, the insured does not lose all that he has paid ; but a certain proportion of the value which the policy then had shall be paid to him. . The time of the death is sometimes very important. If the policy be for a definite period, it must be sh,own that the death occurs within it. If there were an insurance on a man's life for a year, and some short time before the expiration of the term he received a mortal wound, of which he died one day after the year, the insurer would not be liable. And the terms of the policy may possibly make it necessary to determine which of two persons lived longest ; as if a sum were insured on the joint lives of two persons, to be paid to the representatives of the survivor. SECTION III. THE RESTRICTIONS AND EXCEPTIONS IN LIFE-POLICIES. Our policies usually contain certain restrictions or limita- tions as to place ; the life-insured (he whose life is insured for his own or another's benefit) not being permitted to go beyond cer- tain limits, or to certain places. But there is nothing to prevent a bargain permitting the life-insured to pass beyond these bounds, RESTJilCTIONS AND EXCEPTIONS IN LIFE-POLICIES. 4.39 either in consideration of new and further payments, or of the common premium. So certain trades or occupations, as of persons engaged in making gunpowder, or of engineers or firemen about steam- engines, are considered extra-hazardous, and as therefore pro- hibited, or requiring an extra premium. The exception, however, which has created most discussion, is that which makes death by suicide an avoidance of the policy. The clause respetting duelling is plain enough ; a:nd no one can die in a duel without his own fault. But it is otherwise with regard to self-inflicted death. This may be voluntary and wrong, ful, or the result of insanity and disease, for which the suffering party should not be held responsible. v The general principles of the law of contracts, and of the law of insurance particularly, would lead to the conclusion that " death by his own hands," but without the concurrence of a responsible will or mind, would not discharge the insurers, without a positive provision to that effect. We should put such a death on the same footing with one resulting from a mere accident, brought about by the agency, but without the intent, of the life-insured. As if poison were sent to him by mistake for medicine, and he swallowed it under the same mis- take. Much question has been made, wJien a man may be believed to be dead, simply because nothing is known about him, or has been known for a long period. But there is not and cannot be any other presumption of law on the subject than that, after a certain period of absence and silence, there is a presumption of death ; and seven years has been mentioned in England and in this country as this period, and even sanctioned by legisla- tion in New York. But all questions of this kind we regard as pure questions of fact. Whichever party rests his case upon, the death or the life of a certain person, at a certain time, must satisfy the jury upon this point by such evidence as may be admissible and sufficient. 440 LIFE INSURANCE. SECTION IV. THE INTEREST OF THE INSURED. Every one insured in any way must have an interest in the subject-matter of the insurance. A person may effect insurance on his own life in the name of a creditor, for a sum beyond the amount of the debt, the balance to enure to his family, and the policy will be valid for the whole amount insured. Any one may insure his own life ; but if the insured and the life-insured are not the same, that is, if the insured be insured on some other life than his own, interest must be shown. A father has an insurable interest in the life of his minor son. And the general rule is, that any substantial pecuniary interest is sufficient, although not strictly legal nor definite. This has been held in the case of a sister dependent on a brother for support ; and the rule would be held to apply not only to all relations, but where there was no relationship, if there were a positive and real dependence. That is, any one may insure a sum on the life of any other person on whom he or she really depends for support or for comfort. And gener- ally, it is said to be enough, if, according to the ordinary course of events, pecuniary loss or disadvantage will naturally and probably result from the death of the one whose life is insured. So an existing debt gives the creditor an insurable interest in the life of a debtor. But if the debt be not founded on a legal consideration, it does not sustain the policy. And if the debt be paid before the death of the debtor, the insurers are dis- charged. . • SECTION V. THE ASSIGNMENT OF A LIFE-POLICY. Life-policies are assignable at law, and are very frequently assigned in practice. And the assignee of a policy is entitled on the death of the party insured, to recover the full sum insured without reference to the amount of the consideration paid by him for the assignment. A large proportion of the policies which are effected are made for the purpose of assign- ment ; that is, for the purpose of enabling the insured to give WARRANTY, REPRESENTATION, ETC. 441 this additional security to his creditor. If the rules of the com- pany or the terms of the policy refer to an assignment of it, they are binding on the parties. On the one hand, an assignment would operate as a discharge of the insurers, provided a rule or expressed provision gave this effect to the assignment. And, on the other, if the agreement were that the policy should con- tinue in favor of the assignee, even after an act which discharged it as to the insured himself, — as, for example, his suicide, — the insurers would be bound by it. It is an important question what constitutes an assignment. The general answer must be, any act distinctly importing an assignment. And, therefore, a delivery and deposit of the pol- icy, for the purpose of assignment, will operate as such, without a formal written assignment. So will any transaction which gives to a creditor of the insured a right to payment out of the insurance. It seems, however, that delivery is necessary. And where an assignment was indorsed on the policy, and notice given to the insurer, but the policy remained in the possession of the insured, it was held that there was no assignment. Where, however, the assignment is by a separate, deed, which is duly executed and delivered, this is an assignment of the policy, without actual delivery of the policy itself. SECTION VI. WARRANTY, REPRESENTATION, AND CONCEALMENT. The general principles on this subject are the same which we have already stated in reference to other modes of insurance. In life-policies, however, the questions which must be answered are so minute, and cover so much ground, that difficulty seldom arises except in relation to the answers. One advisable precau- tion is for the answerer to discriminate carefully between what he knows and what he believes. If he says simply "yes" or ' " no," or gives an equivalent answer, this is in most cases a strict warranty, and avoids the policy if there be any material mistake in the reply. But where the answerer adds the words "to the best of my knowledge and belief," he zmrrants only the 442 J:-rFE INSURANCE. fact of his belief, or, in other words, nothing but his own entire honesty. The cases which turn upon the answers to the questions are very numerous ; but they necessarily rest upon the especial facts of each case, and hardly permit that general rules should be drawn from them. Some, however, may be stated. The first is, that perfect good faith should be observed. The want of it taints a policy at once, and the presence of it goes far to protect one. Thus, where the life-insured was beginning to be insane, but was wholly unconscious of it, the policy was not vitiated by the concealment, although two doctors in attendance upon him knew how the case stood. Most of the policies of the present day provide that the policy is made on the faith of the statem.ents in the applica- tion for insurance with the stipulation, and that, if they shall be found in any respect untrue, the policies shall be avoided. Then the stipulations are considered as warranties, and if untrue, even in a point immaterial to the risk, avoid the policies. There is a warranty, or statement, usually making a part of nearly all life-policies ; it is that the life insured is in good health. But this d-oes not mean perfect health, or freedom from all symptoms or seeds of disease. It means reasonably good health, and loose as this definition, or rule, may be, it would be difficult to give it any other. And if a jury on the whole are satisfied that the constitution of one warranted to be "in good health" is radically impaired, and the life made unusu- ally precarious, there is a breach of the warranty, although no specific disease is shown which must have that effect. On the other hand, this warranty is not broken by the presence of a dis- ease, if that be one which does not usually tend to shorten life (in one English case dyspepsia was said to be such a disease), unless it were organic, or had increased to that extreme degree as to be of itself dangerous. Consumption is the disease which is most feared in this country, as well as in England. And the questions which relate to the symptoms of it, as spitting of blood, cough, and the like, are exceedingly minute. But here also there must be a reasonable construction of the answers. Thus, if spitting of blood be posi- WARRANTY, REPRESENTATION, ETC. 443 lively denied, there may be no falsification in fact, though liter- ally speaking the life-insured may have spit blood many times, as when a tooth was drawn, or from some 'accident. If there be an action on the policy, and the insurers rest their defence on any falsification of this kind, the question usually put to the jury is. Was the party affected by any of these or similar symp- toms, in such wise that they indicated a disorder tending to shorten life ? And any symptom of this kind, however slight, — as a drop or two of blood having ever flowed from inflamed or congested lungs, — should be stated. Statements materially untrue on these points avoid the policy, although the insured, at the time of his application, did not believe that he had any pulmonary disease, and the statement made by him was not intentionally false, but, according to his belief, true. The insurers always ask who is the physician of the life^ insured that they may make inquiries of him if they see fit. And his name must be stated fully and accurately. It is not enough to give the name of the usual attendant; but every^ physician really consulted should be named, and every one con- sulted as a physician, although he is an irregular practitioner or quack. If the warranty be that the life-insured is a person of sober and temperate habits, it has been held, in an action on such a policy, that the jury are not to inquire whether his habits of drinking are such as might injure his- health ; for if he has any "habits of drinking," this would discharge the insurers, because they have a perfect right to say that they will insure only those who are temperate. But it may be answered, that although the insurers have this right, and there may be good reasons why this should be the general practice, yet unless they use the word "abstinence," or something equivalent, they have no right to say that any one is not "temperate" who does not drink enough to affect his health ; for as, generally, all intemperance must affect health injuriously, if there be no such injury, the presump- tion would be that there was no intemperance , and there is clearly a broad distinction between temperance and total absti- nence. An answer, "not subject to fits," is not necessarily falsi- 444 LIFE INSURANCE. fied by the fact that the life-insured has had one or more fits. But if the question had been, " Have you ever had fits ? " then it is said that any" fit of any kind, and however long before, must be stated. But if a man had a fit when a young child, and forgot to mention it, or considered it wholly unimportant, and it had nothing to do with his state of health, it would hardly be held a falsification which would avoid the policy. As there is always a general question as to any facts affect- ing health not particularly inquired of, a concealment of such a fact goes to a jury, who are to judge whether the fact was mate- rial, and whether the concealment were honest. As when a life- insured was a prisoner for debt, and so without the benefit of air and recreation, and this was not told; and where a woman whose life was insured had become the mother of a child under disgraceful circumstances some years before, and this fact was concealed, the plaintiff was non-suited. If the policy, and the papers annexed or connected, put no limits on the location of the life-insured, he may go where he will. But if, when applying for insurance, he intends going to a place of peculiar danger, and this intention is wholly withheld, it would be a fraudulent concealment. If facts be erroneously but honestly misrepresented, and the insurers, when making the policy, knew the truth, the error does not affect the policy. Nor does the non-statement of a fact ■which diminishes the risk. If upon a proposal for a life insurance, and an agreement thereon, a policy be drawn up by the insurers and presented to the insured and accepted by them, which differs from the terms of the agreement, and varies the rights of the parties concerned, equity will interfere and deal with the case on the footing of this agreement, and not of the policy. But it may be shown by evidence and circumstances, that it was intended by the insurers to vary the agreement, and propose a different policy to the insured, and that this was understood by the insured, and the policy so accepted. INSURANCE AGAINST ACCIDENT, ETC. 445 SECTION VII. INSURANCE AGAINST ACCIDENT, DISEASE, AND DISHONESTY OF SERVANTS. Of late years both of these forms of insurance have come into practice, but not so long or so extensively as to require that we should speak of them at length. In general, it must be true, that the principles already stated as those of insur- ance against marine peril, or fire, or death, must apply to these other — and, indeed, to all other — forms of insurance, excepting so far as they may be qualified by the nature of the contract. From one interesting case which has occurred in England, it seems that, when an application is made for insurance, or guaranty against the fraud or misconduct of^an agent, questions are proposed, as we should expect, which are calculated to call forth all the various facts illustrative of the character of the agent, and all which could assist in estimating the probability of his fidelity and discretion. But a declaration of the appli- cant as to the course or conduct he was to pursue was distin- guished from a warranty. He may recover on the policy, although he changes his course, provided the declaration was honest when made, and the change of conduct was also in good faith. In this case the application was for insurance of the fidelity of the secretary of an institution. There was a ques- tion as to when, and how often, the accounts of the secretary would be balanced and closed ; and the applicant answered that these accounts would be examined by the financial committee once a fortnight. A loss ensued from the dishonesty of the secretary, and it appeared to have been made possible by the neglect of the committee or the directors to examine his accounts in the manner stated in the policy. But the insurers were held on the ground that there was no warranty. 446 DEEDS CONVEYING LAND. CHAPTER XXIX. DEEDS CONVEYING LAND. SECTION I. WHAT IS ESSENTIAL TO SUCH DEEDS. By the old law, no instrument was considered made until it was sealed ; then it was thought to be done, and the word deed, which literally means only something done, was given to every written instrument to which a seal was affixed ; and that is the legal meaning now. But the common meaning of the word is an instrument for the sale of lands ; and it is of this that we would now treat. By the statutes and usage of this country generally, no lands can be transferred excepting by a deed, which is signed, sealed, acknowledged, delivered, and recorded. In some States seals are abolished. We give annexed to this chapter an Abstract of the Laws of all the States relating to deeds and their requirements. What the deed should be, that is, in what words it should be expressed, we can best show by the forms appended to this chapter, and do not propose to say more about it than this. It is not safe to depart from forms, and established phrases, which have passed before the courts so often that their exact meaning is certainly known. There are things which seem to be and perhaps are vain repetitions ; and for the usual words it may be thought that others of the same or better meaning may be sub- stituted. Such changes may be made perJiaps, without detri- ment ; but perJiaps, also, with ruinous results ; and it is not wise to run the risk. It should be signed ; and this means, properly, that the seller or grantor should write his name in the usual way, in the proper place, and with ink. If the grantor cannot write his name, he may merely make his marlt. It has been said that writing with a lead pencil is enough, but it would not be safe to trust to it. The name of the grantee should be distinctly WHAT IS ESSENTIAL TO SUCH DEEDS. 447 written in the proper place, in ink. Sometimes, in our large cities, an agent buys land for a principal who does not wish to be known, and the agent's name is inserted as grantee, m pencil, and the deed is so executed and acknowledged and delivered ; and some time afterwards the agent rubs his name out, and writes the name of his principal, the actual buyer, instead. But this is a very unsafe and reprehensible practice, and the deed cannot be considered satisfactory. The deed of a corporation must be signed by an agent or attorney, who should be careful to execute it in the manner indicated in some of the forms appended. In one case, in Massachusetts, where a deed was written throughout as the deed of a corporation, and their treasurer signed it thus : " In witness whereof, I, the said C C, in behalf of the said company, and as their treasurer, have h'ereunto set my hand and seal," — ■ it was held that this was the deed of the treasurer, and not the deed of the corporation, and did iiot transfer the lands. This is an extreme case, and the law might not always be applied with so much severity ; but it is best not to incur any such risk. So, to, the rule that a person who is to be authorized to affix the seal of another should be authorized under the seal of the principal, is so general, that, although it has important excep- tions, it should always be observed. The seal is properly a piece of paper wafered on, or sealing, " wax pressed on. In the New England States generally, and in New York, nothing else satisfies the legal requirement of a seal. In the Southern and Western States generally, a scrawl, intended for a seal, usually made by writing the word "seal" within a square or diamond, is regarded in law as a seal. If there be but one seal on an instrument, and many parties, all of whom should seal it, this seal will be taken generally for the seal of each one ; although, properly, each signer should put a seal against his own name. The deed should be delivered. If a man makes a deed, and acknowledges it, and keeps it in his possession, and dies, the deed has no effect whatever ; no more than if the grantor had put it in the fire. Even where it was recorded, and then taken back by the grantor and kept by him, with words going to show 448 DEEDS CONVEYING LAND. that the grantor did not wish the grantee to know of it, it was held not to have been delivered. But there are no especial words or form necessary for delivery. If the deed, in any way whatever, gets into the possession of the grantee, with the knowledge and consent of the grantor, it is a delivery. The grantor may deliver it by his agent, and it may be delivered to the agent of the grantee, authorized by him to receive it. Moreover, the law permits a kind of conditional delivery. Thus, the grantor may deliver the deed to a third person, to be delivered by him to the grantee on a certain con- dition, or when a certain thing is done ; and when that condition is performed, or the thing is done, the deed belongs to the grantee, and takes effect in the same way as if it had been delivered to him personally. In legal language, the deed is said to be delivered to the third person, as an escrow. So the grantor may put the deed in the hands of the third person, with directions to give it to the grantee after the death of the grantor, provided the grantor does not reclaim it in the mean time. Then the grantor can reclaim it whenever he will, which he cannot do after he has delivered it to the grantee ; but if he does not reclaim it during his life, at his death it becomes the property of the grantee, and the law now considers that it was delivered to him when first delivered to that third party. So that deed is good even against creditors, provided that the grantor was perfectly solvent when he put the deed in the hands of the third party, and acted altogether in good faith. If a deed to a married woman be delivered either to her or to her husband, it is sufficient. As there must be delivery to the grantee, or to some one for him, so there must be assent and acceptance on his part. The law will help any evidence tending to show such assent, by presuming in favor of the grantee's assent if the deed be wholly and only favorable to him. But not if there is money to be paid by him, or anything important to be done if he accept the deed. It is usual and proper that the execution of the deed should be attested by witnesses. In many of our States, two witnesses are required by statute. In New York, one is enough. In the WHAT IS ESSENTIAL TO SUCH DEEDS. 449 greater number, witnesses are not absolutely required by- statutes, nor by strict law of any kind; but even there it is usual and safer to have them. The witness should see the party sign ; but if the deed is signed near him, and is immediately brought to him by the grantor, who tells him that is his signature, and asks him to witness, this would be sufficient in law. It is desirable that witnesses, when called on to testify, should remember the signature, sealing, etc. ; but it is sufficient in law that they are certain of their handwriting, and can declare under oath that they should not kave attested the execu- tion and delivery if they had not seen it. If witnesses are dead, proof of their handwriting is sufficient ; and if this cannot be offered, then proof of the handwriting of the grantor is enough. If witnesses attest the signing, sealing, and delivery, in the common form, proof of their handwriting, in case of their death or absence, is proof of the execution and delivery of the deed. The witness should, properly, be of sufficient age and under- standing, but may be a minor. He should have no interest in the deed. Hence a wi fe is not a p rnrff witnfisi; gf a -fl'^"'4-4ft.i her husband. Jjut tne courts, and especially a court of equity, would se!3om permit a deed to be avoided through the incompe- tence of a witness, if there were no suspicion' of wrong. Generally a deed is valid as between the parties, although not acknowledged ; but, to entitle it to be recorded, it must be acknowledged. For this purpose the grantor must go before a person qualified by law to receive acknowledgments, and exhibit the deed to him, and acknowledge it as his free act and deed ; and the person receiving the acknowledgment then certifies that he has received this acknowledgment, under the proper date. In general an acknowledgment may- be made before any justice of the peace, or a commissioner appointed for the State in which the land to be conveyed is situated, if the deed is executed in another State, or any consul or consular agent of the United States if the deed is executed in a foreign country. This acknowledgment must be made, or the deed cannot be recorded. And the deed is invalid, as notice, if the acknowl- edgment is defective, although it is actually recorded. 29 450 DEEDS CONVEYING LAND. Formerly, all the grantors acknowledged the deed ; and this continues to be usual in most places, and is the safest practice. But, in some places, it is now sufficient in law, if either of the grantors acknowledge it. In many States, if a wife, separately or joining with her husband, conveys away her land, a particular form and mode of acknowledgment is required, in order to ascertain that she does it of her own free will ; and any such directions or requirements should be followed with great care. The Forms added to this chapter will show how this is done. An attorney, A B^ who executes a deed for another, C D, should acknowledge it as "the free act and deed of the said C D," and not as his own. The justice taking the acknowledgment must be careful to state it in his certificate, exactly as it was made before him. In some of our States, recent laws have in effect required the assent of the wife to a transfer of the husband's real estate ; not merely to convey her dower, but to pass the property to the grantee. We do not enumerate or specify these States here ; having given previously an abstract of the law of husband and wife in all the States. In all our States, we have the excellent system of registering (or recording, as it is more frequently called) all deeds of land in the public registers of the county in which the land lies. This was adopted for the purpose of giving certainty and noto- riety to title, and it works admirably well. The investigation of title is usually easy to those accustomed to this mode ; and every purchaser of land should ascertain that the deed will give him good title before he takes it. The law generally requires that a deed of lands should be acknowledged and recorded, to have full effect ; but judicial decisions have everywhere qualified the force of these words, and in some instances the language of the statutes varies. But the rules of law in reference to the recording are quite uniform in all the States, and are as follows : In the first place, every acknowledged deed is considered as recorded as soon as it is in the hands of the recording officer ; and therefore he generally -minutes upon it the day, hour, and THE USUAL CLAUSES IN DEEDS. .v^ minute when it was received by him. This may be very import- ant ; for if A makes his deed and delivers it to B, who presents it for record at five minutes past noon, and C, a creditor of A, attaches the same estate at four minutes past noon of the same day, the grantee loses the land and the creditor gets it ; but the grantee saves it, if he presents it to the office three minutes and fifty seconds after noon. In the next place, as the purpose of public registration is general notoriety, a deed is perfectly good without record against the grantor himself and his heirs, because the grantor himself could not but know of the deed, and, as all title passed out of him by it, his heirs could take none from him. And finally, a deed not recorded is just as good as if it had been recorded, against any parties, or the heirs of any parties, who took the land from the grantor by a subsequent deed, even for a full price, if they had at the time notice or knowledge of the prior and unrecorded deed. Many wise persons have doubted the expediency of this last rule, because it tends to raise troublesome questions, and to make grantees careless about recording their deeds. But the rule itself is universally and firmly established, and in some statutes requiring record this exception is expressed. A deed should be dated ; but, if it have no date, it will take effect from delivery. Any erasures or alterations should be noticed and stated above the names of the witnesses, as having been made before the execution of the instrument. Any mate- rial alteration by a grantee, or by his procurement, makes the deed void in most cases, so far as he is concerned. It is usual, and therefore proper, to name executors, admin- istrators, etc., as in the forms appended ; but, generally, the rights and obligations of the deceased fall by law on their legal representatives. SECTION ir. THE USUAL CLAUSES IN DEEDS. It is customary to recite in all deeds the consideration on which they are made. This is usually the price paid for them. Sometimes it is this price in part, and other things in part. 452 DEEDS CONVEYING LAND. Sometimes there is no price paid, the land being either a gift, or conveyed for other considerations. In the great majority of deeds, the language used is, "in consideration of (so much money) paid me by the said (grantee), the receipt whereof I acknowledge." Or it is, "in consideration of one dollar paid me, the receipt of which I acknowledge, and divers other con* siderations ; " or, " in consideration of one dollar to me paid, the receipt of which I acknowledge, and of the love and good- will I bear to the said (grantee)." It is always customary, although not necessary, to put in " one dollar," or some other nominal sum, although no price is paid. Although the price is inserted, and the receipt thereof be acknowledged, the seller is not bound by his' receipt. It is a general rule, as has been stated, that all written receipts of money are open to evidence, as written contracts generally are not. Under this rule, the seller may sue for the whole or any part of the money of which he has acknowledged the receipt, if he can prove that the money he demands has not been paid to him. He cannot, however, say that the money has not been paid, and therefore the deed is void, and the land has not passed to the grantee. For only that part of the deed which is a receipt is open to denial or evidence. Of the words of conveyance, which are usually " give, grant, sell, and convey," it needs only be said, that it is best to use them, because it is usual, but that other words, or these with some change, would be sufficient in law. The description of the land should be minute and accurate, to an extreme degree. In this country, it is customary and well to refer to the previous deeds by which the grantor obtained his title. This is done by describing them by their parties, date, and book and page of registry. It may be well to remark, that a deed referred to in a deed becomes, for most purposes in law, a part of the deed referring. By the law of England and of America, if land is conveyed by deed to "A B," the grantee takes it for his life only. Nor will he take it in full property (or, to use the technical law-term, in fee simple), that is, with full power of disposing of it during his life or at his death, with a right on the part of his heirs to it if THE USUAL CLA USES IN DEEDS. 453 he does not dispose of it, unless it is given to "A B and his heirs." These last words, which are commonly called words of inheritance, must always be added ; for although there are some qualifications to this rule, which might help those who take such a deed inadvertently, there are none to which it would be safe to trust. The deed is terminated by this clause of execution : " In witness whereof, I, the said A B, on the day of in the year , have hereunto set my hand and seal," or " subscribed (or written) my name and affixed my seal." And there should be no departure from this, although an exact adherence to this formula may not be necessary to the validity of the deed. This clause is often ca:lled the " In Testimonium clause." If the deed contains nothing but what has now been said, it will convey the land, or all the right, title, and interest in and to the land, possessed by the grantor. But it is only what is called a qidtclaim deed. That is, it is not a warranty deed. These phrases, which are in common use, explain themselves. Originally, a quitclaim deed was intended, and indeed operated, only where the grantee already held possession of the land, or some title to it, and the grantor intended to renounce all his right or title in favor of the grantee. But it was soon used where a man intended to sell and convey land, but not to give any warranty. And now, because there is some question, in some of our States, as to the effect of the words "give, grant, sell, and convey," although there be no express warranty in the deed, it is best, and it is usual, when only a quitclaim is intended, without any warranty whatever, to substitute for the words of conveyance above, mentioned the words " grant and quitclaim," or, more accurately, "release and quitclaim." Then, if the grantee afterwards loses the land because the grantor had no title to it, the grantor is nevertheless under no responsibility, provided the transaction was an honest one on his part. All purchasers, therefore, desire to have a warranty deed if they can get one. And a deed becomes a warranty deed, when clauses like those which follow are inserted just before the clause of execution : " And I, the said A B (the grantor), for myself, my heirs, 454 DEEDS CONVEYING LAND. executors, and administrators, do covenant with the said C D (the grantee), his heirs and assigns, that I am lawfully seized in fee of the aforegranted premises ; that they are free from all incumbrances ; that I have good right to sell and convey the same to the said C D as aforesaid ; and that I will, and my heirs, executors, and administrators shall, warrant and defend the same to the said C D, his heirs and assigns forever, against the lawful claims and demands of all persons. It will be noticed that this paragraph contains four different agreements or warranties, — covenants the law calls them. The cases are multitudinous, and the law excessively nice, as to their exact meaning and operation. None of this technical learning is it worth while to spread before the general reader. But the general purpose and effect of all of them together should be stated. It is, that if "the said C D," that is, the grantee, or his heirs or assigns, are turned out of that estate (ousted or evicted, the law says), on the ground that the grantor had no title, or an incumbered title, and could not convey any good and clear title, he or they may fall back on the grantor or his heirs, and demand damages for the loss of the land. It is a question how much damage a grantee thus ousted shall recover. In most of our States, it seems to be the money paid for it, with interest (deducting rents and profits), and the legal costs and charges (not including counsel fees) for defend- ing against the suit which has ousted him from the land, and no more. But in other States, as generally in New England, the party ousted recovers the actual value of the land, with his improvements, which he loses by the delect of the grantor's title ; although this may be much more than he paid for it. It is not, however, settled uniformly what the measure of damages is. In forms of deeds there is usually a blank of a few lines left after the words "incumbrances;" and this is intended for the insertion of any mortgage, or other incumbrance, which may exist; thus, "excepting a mortgage to, etc., dated, etc., to secure the sum of, etc." Or, "excepting a right in the owners of the adjoining land to have and maintain a drain running, etc." Sometimes quitclaim deeds are made with this warranty : " And I will, and my heirs, etc., shall, warrant and defend, etc.. THE USUAL CLA USES IN DEEDS. 45 S to the said C. D, etc., against all claims and demands of myself, or of any persons deriving title by or through me." Such a warranty will hold the grantor and his heirs liable for any incumbrance made or suffered by him, but not for any other. As the usual covenants of a warranty deed are made with the grantee, " his heirs and assigns," if such grantee conveys the land only by grant and quitclaim, without warranty, his grantee takes the benefit of all the previous warranties to which this last grantor was entitled. Thus, A sells with warranty to B ; B quitclaims to C ; C is ousted by D, who proves that he has a better title than A. C cannot sue B because he got no warranty from B ; but he can sue A on A's warranty to B, which was transferred to C. Sometimes estates are conveyed on condition ; but this is a very catching thing, and nobody should ever take such a deed if he can help it. It is hardly safe to have the word conditioji in any deed but a mortgage. The reason is, that if an estate is conveyed on condition, and the condition is broken, the estate is lost. Thus if land is sold on a certain street with this clause: "And the land aforesaid is sold on condition that neither the grantee, nor any one deriving title from or through him, shall build within ten feet of the street." If any owner build six inches over the line, by mistake, or extend his building by an addition of a foot or so in any part, the whole land, house and all, might be lost and forfeited to the grantor. And the grantor can always secure the proper effect of such a condition by a clause like this : " Provided, however, and it is agreed, that if the said C D, etc., shall build, etc., the said A B, or his heirs or assigns, may enter upon the land hereby conveyed, and abate and remove any and all buildings or parts of buildings, which stand nearer said street than the limit of ten feet afore- said ; " — or some similar clause, as might be framed to suit the case. This would be just as good for the grantor and a great deal safer for the grantee. By a rule of law which originated in this country, and is now universal here, if a married woman holds lands, the hus- band and the wife, joining in one deed, may convey them. In some of our States such a deed is regulated by statutes, which 456 DEEDS CONVEYING LAND. of course ai-e to be followed. And in many of them the wife now has peculiar powers by statute, as stated in Chapter V. on Married Women. It may be necessary that she should renounce or release certain rights, as of homestead, etc., under these statutes, if it is intended that the grantee should take a clear title; and in such case proper words should be inserted. This is now the custom, for example, in Massachusetts. She should always release her right of dower, unless it is intended that she should preserve it. In some States her signing the deed with her husband does not release anything, even if it could be proved that such was her intention, unless the deed contain words expressing her intention to release or convey such or such a right or interest. In most printed forms there is a blank left to be filled up for this purpose. As this differs in different States I shall refer to it again. It may be well to remark that bargains are often made for the purchase and sale of real property. If the contract be oral only, it has no force in any court. If it be in writing, either party may, in a court of law, recover damages from the other if he refuses to perform his contract. Or, in a court of equity, he may compel the other to execute his contract. Not, however, if there was fraud in the contract, or oppression, or gross misrepresentation, or intentional and important concealment. But a mere inadequacy of price — all things being honest — will not prevent a court of equity from enforcing such an agreement. Deeds conveying land are of vast variety. They not only differ that they may suit the particular purposes of the parties and the terms of their bargain, but those used in each section of the country differ somewhat in form from those used in another; and different conveyancers in the same State prefer one form to another. But these differences are generally, if not always, differences only of form, and are seldom essential to the meaning and effect of the deeds. I give here forms of all the kinds most in use; and in such variety, and so selected and prepared, that it is believed that any person in any part of this country will be able to find a form, which, either as it stands, or with such alterations as can be readily seen to be required by the use he would make of it, will be safe, and suffi- cient for his purpose. THE USUAL CLAUSES IN DEEDS. 457 As acknowledgments differ much in form, enough of them are given to show the kinds that are used. The fuller and more particular are the safer, although the shorter and more general might be sufficient. In New England, a deed of land is usually what is called in law a Deed Poll ; by which is meant a deed of one party, and from him to another. In the other States generally, a deed of lands is more commonly in the form of an Indenture, which, as has been said before, is an instrument between two or more parties. The difference between them will be seen in the forms given. The first one is a Deed Poll. But most of them are Indentures, as they are most frequently used ; although a Deed Poll that was satisfactory in other respects would generally suffice to give good title to land anywhere. A form of a Deed Poll may be converted into an Indenture by changing the beginning of it in the manner shown in the ■ forms, and, whenever the word "grantor" comes, changing that into "the party of the first part." And a deed by Indenture is made a Deed Poll by changes of an opposite kind. How to make these changes will be seen by comparing the deeds of the two kinds as herein given. Another difference between the Deeds Poll in common use in the New England States, and the deeds by Indenture in use elsewhere, must be noticed. If the grantor by a Deed Poll has a wife, and it is intended that she shall relinquish her dower, she is not mentioned as grantor, but in the "In Testimonium," so called, which is that part of the deed which begins with " In witness (or in testimony) whereof," her name is mentioned, and it must be distinctly said that she signs the deed in token of her relinquishment or release of dower. This is shown in Form 106. But where deeds by Indenture are used, there she is joined with her hus- band, and named as grantor; he and she being "parties of the first part." It is, however, not necessary that anything should be said in the deed about her release of dower, or homestead ; but she signs and seals the deed, and, in the acknowledgment, express mention is made of her release of dower and home- stead, and also that she was separately examined. Some 458 DEEDS CONVEYING LAND. of the forms are drawn in this way. Other forms are written as if the grantor was unmarried, or as if his wife, if he had one, did not intend to give up her dower. But all these forms can be readily altered, and made to resemble either of the forms according as there is or is not a wife, or as, if there be a wife, it is intended that she should join in the conveyance and relinquish her dower, or that the husband should convey subject to the wife's dower. If this last be the intention, it is not necessary to say so, as the mere fact that she is not a party to the deed preserves for her the right of dower. (106.) A Deed Poll of "Warranty, in Common Use in New England. Know all Men by these Presents, That I, {the grantor) of {residence, town or city, county and State), {occupation), in consideration of {the amount paid) to me paid by {here name the grantee or purchaser, giving in like manner his residence and occupation), tlie receipt whereof is hereby acknowledged, do hereby give, grant, bargain, sell, and convey unto the said {name the grantee, and then describe the prem- ises granted, miimtely and accurately) : — To Have and to Hold the above-granted premises, to the said {name the grantee), his {or hers or their) lieirs and assigns, to his {or hers or their) use and behoof forever. And 1, the said {name of the grantor), iox {myself) and {my) heirs, executors, and administrators, do covenant with the said {name of the grantee), and with his heirs and assigns, that I am lawfully seized in fee simple of the aforegranted premises ; that they are free from all incumbrances {if there be any incumbrances, as a mortgage or lien, or right of luay, or drain, or air, or light, say excepting, and tlien describe the incumbrance), that I have good right to sell and convey the same to the said {name of the grantee), and his {or her) heirs and assigns forever as afore- said ; and that I will, and my heirs, executors, and administrators shall, war- rant and defend the same to the said {name of the grantee), and his heirs and assigns forever, against the lawful claims and demands of all persons. In Witness Whereof, I, the said {name of the grantor), and {najne of his wife), wife of said grantor, in token of her release of all ri;ihtand title of or to dower in the granted premises, have hereunto set our hands and seals this day of in the year of our Lord eighteen hun- dred and {Signature.) {Seal.) Signed, Sealed, and Delivered in Presence of In those States in which a homestead law exists, the signa- ture of the wife, with a clause like that above, would not release FORMS OF DEEDS. 45 g che homestead. To effect this the following clause should be inserted before the words, " In token of : " — " In token of her release -to the said {iiame of the grantee), of all her right, interest, and estate to or in the premises herein conveyed, under the homestead laws of this State ; and also," etc. Some conveyancers think this hardly sufficient, and prefer the following method, which would undoubtedly be effectual in every one of these States. Insert before the paragraph begin- ning " In witness whereof," this paragraph : — "And I, {jtajne of the wife) ^Mt. oi ^^ ^sSA. {the name of the grantor), in consideration of one dollar to me paid by the said {the naine of the gratitee), the receipt whereof is acknowledged, do hereby release and assign to the said {the name of the grantee), and his heirs and assigns, all my right, interest, claim, and estate in or to the premises within granted, under the homestead laws of this State, or any other statutory provisions thereof." It is to be remembered that, whether the deed be a warranty deed like that above given, or a release or quitclaim, or a mort- gage deed, it is equally necessary and proper that the wife should release her homestead right and her dower, unless it is intended that she should retain them. Below the deed comes the acknowledgment, of which the briefest form is as follows, which is sufficient in a few States : Commonwealth {or State) of {County) SS. {Town, Month, and Date) Then personally appeared the above-named and acknowl- edged the above instrument to be free act and deed ; before me, Justice of the Peace. If the wife is a party to the deed, she should make her sep- arate acknowledgment. A full Form of acknowledgment, by both parties, sufficient anywhere, may be found in Form 112, page 464. (107.) Deed of G-ift by Indenture, witliout any "Warranty •whatever. This Indenture, Made the day of in the year one thousand eight hundred and between 46o DEEDS CONVEYING LAND. {tiamc, residence, and occnpatioji of the grantor) of the first part, and {name, residence, and occupation of the grantee) of the second part, witness- eth, that the said {the grantor) as well for and in consideration of the love and affection which he has and bears towards the said {the grantee) as for the sum of one dollar, lawful money of the United States, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has given, granted, aliened, enfeoffed, released, conveyed, and confirmed, and by these presents does give, grant, aliene, enfeoff, release, convey, and con- firm, unto the said party of the second part and his heirs and assigns forever, all {here describe carefully the land or premises granted, by metes and bounds, and di?nensions, contents or quantity, or boundary marks or monu- ments, and refer by volume and page to the deed of the land to the grantor, under which he holds it). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also, all the estate, right, title, interest, pro;:erty, pos- session, claim, and demand whatsoever, of the said party of the first part, of, in, and to the same, and every part and parcel thereof, with their and every of their appurtenances. To have and to hold the said hereby granted and described premises and every part and parcel thereof with the appurtenances unto the said party of the second part, and his heirs and assigns, to his and their only proper use, benefit, and behoof forever. In Witness Whereof, The said party of the first part has hereunto set his hand and seal the day and year first above written. {Signature') {Seal) Sealed and Delivered z« the Presence of (108.) Deed of Bargain and Sale without any Warranty. This Indenture, Made the day of in the 3'ear one thousand eight hundred and between {name, residence, and occupation of the grantor) of the first part, and {name, residence, and occupation of the grantee) of the second part, witness- eth, that the said party of the first part, for and in consideration of the sum of lawful money of the United States of America, to him in hand paid, by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, remised, released, conveyed, and con- firmed, and by these presents does grant, bargain, sell, aliene, remise, release, convev, and confirm, unto the said party of the second part, and to his and assigns forever, all {here describe carefully the land or premises grajited, as directed itt Fonn 107). FORMS OF DEEDS. 461 Togetlier -with all and singular the tenements, hereditaments, and appur- tenances thereto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also all the estate, right, title, interest, property, possession, claim, and demand vi^hatsoever, as well in law as in equity, of the said party of the first part, of, in, or to the above-described premises, and every part and parcel thereof, with the appurtenances. To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said party of the second part, and his heirs and assigns forever. In "Witness Whereof, The said party of the first part has hereunto set his hand and seal the day and year first above written. {Sigitatttre.) {Seal.) Sealed and Delivered in the Presence of State of ) County of ) On this day of in the year one thou- sand eight hundred and before me personally came {the name of the paj'ty of the first part who is the grantor) who is known by me to be the individual described in, and who executed the foregoing in- strument, and then and there acknowledged that he executed the same as and for his own deed. {Signature) (109.) Quitclaim Deed without any "Warranty. This Indenture, Made the day of in the year one thousand eight hundred and between (name, residence, and occupation of the grantor) of the first part, and {name, residence, and occupation of the grantee) of the second part, witness- eth, that the said party of the first part, for and in consideration of the sum of lawful money of the United States of America, to him in hand paid, by the said party of the second part, at or before the ensealing and dehvery of these presents, the receipt whereof is hereby acknowledged, has remised, released, and quitclaimed, and by these presents does remise, release, and quitclaim, unto the said party of the second part, and to his heirs and assigns forever, all (Jtere describe carefully the land or premises granted, as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, or to the above-described premises, and every part and parcel thereof, with the appurtenances. To have and to hold all and singular the 462 DEEDS CONVEYING LAND. above mentioned and described premises, together with the appurtenances, unto the said party o£ the second part, and his heirs and assigns forever. In Witness Whereof, The said party of the first part has hereunto set his hand and seal the day and year first above written. (Signature^ {Seal.) Sealed a?id Delivered in the Presence of State of County of On this day of in the year one thou- sand eight hundred and before me personally came (the name of the grantor) who is known by me to be the individual described in, and who executed the foregoing instrument, and acknowledged that he executed the same. {Signature^ (110.) Deed Poll of Release and Conveyance, Short Form. Know all Men by these Presents, That I, {the najne of releasor) of the County of and State of for and in consideration of one dollar to me in hand paid, and for other good and valuable considerations, the receipt whereof is hereby confessed, do hereby grant, bargain, remise, convey, release, and quitclaim unto {the name of the releasee) of the County of and State of all the right, title, interest, claim, or demand whatsoever, I may have acquired in, through, or by a certain indenture or deed, bearing date the day of A. D. 18 , and recorded in the office of County, and State of in book of page to the premises therein described, to wit {here describe carefully the land or premises granted, as directed in Form 107). Witness my hand and seal, this day of A. D. i8 {Signature.) {Seal.) State of ) )-ss. County. ) I, in and for said county, in the State aforesaid, do hereby certify, that {the name of the releasor) personally known to me as the same person whose name is subscribed to the foregoing deed, appeared before me this day, in person, and acknowledged that he signed, sealed, and delivered the said instrument in writing, as his own free and voluntary act, for the uses and purposes therein set forth. Given under my hand and seal, this day of A. D. 18 {Signature^ {Seal) FORMS OF DEEDS. g (111.) Deed, with Special "Warranty against the Grantor only. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and between (the name of the grantor) and {name of the •wife of grantor) wife of the said {iiame of the grantor) of the County of and State of parties of the first part, and (name and residence of the grantee) party of the second part : Witnesseth, that the said parties of the first part, for and in consideration of the sum of to them paid by the said party* of the second part, the receipt of which is hereby acl ss. County.) I, in and for said county, and the State aforesaid, do hereby certify, that {name of the grantor') being personally known to me as the same person whose name (is) subscribed to the foregoing instrument of writing, appeared before me this day, in person, and acknowledged that (he) signed, sealed, and delivered the said instrument of writing as (Iiis) free and voluntary act, for the uses and purposes therein set forth. Given under my hand and official seal this day of A.D. 18 {Signature^ {Seal^ FORMS OF DEEDS. .g- (114.) Separate Relinquishment of Homestead and Dower in Land sold under Exeoution. Know all Men by these Presents, That we {name and residence of the debtor) and (name of his wife) wife of the said of the County of and State of , parties of the first part, for tlie sum of one dollar to us paid by {name of the purchaser) of the County of and State of party of the second part, the receipt whereof is hereby acknowledged, do hereby agree and consent to let the said party of the second part levy and sell, under a certain execution, in favor of him, the said party of the second part, and against {name of the creditor, or the defendant in the suit in ■which the execution issued^ now in the hands of the sheriff of the County of and State of and dated the day of A.D. i8 , the following-described tract of land, situated in the County of and State of to wit {here describe carefully the land or premises granted, as directed in Form 107), (and being the same land heretofore held, used, and occupied by the said parties of the first part, as a homestead) hereby waiving, releasing, relin- quishing, and surrendering to and in favor of said party of the second part, under the said levy and sale on said execution, all the right, title, claim, interest, and benefit which we, the said parties of the first part, and each of us, have in and to said premises, by virtue of any and all homestead-exemp- tion laws, now or heretofore in force in the State of , and more especially " An Act to exempt Homesteads from Sale on Execution," now in force in the State of Witness our hands and seals this the day of 18 . {Signature) {Seal) {Signature) {Seal) State of , ^ [■ss. County. ) I, in and for said county, in the State aforesaid, do hereby certify that personally known to me as the same person whose name is subscribed to the annexed instrument, appeared before me this day in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. And the said [the name of the wife) wife of the said having been by me examined, separate and apart, and out of the hearing of her husband, and the contents and rrreaning of the said instrument of writing having been by me fully made known and explained to her, and she also by me being fully informed of her rights under the Homestead Laws of this State, acknowledged that she had freely and voluntarily executed the same, and relinquished her dower to the lands and tenements therein mentioned, 468 DEEDS CONVEYING LAND. without compulsion of her said husband, and that she does not wibh to retract the same. Given under my hand and seal this day of A.D. i8 . (Signature^ (Seal.) (115.) Full "Warranty Deed, by Indenture, without Release of Homestead or Dower. This Indenture, Made the day of in the year one thousand eight hundred and between {name, residence, and occupation of the grantor) party of the first part, and {iiaine, residence, and occupation of the grantee) party of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of lawful money of the United States, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged. and the said party of the second part, and his heirs, executors, and admin- istrators, forever released and discharged from the same, by these presents, has granted, bargained, sold, aliened, remised, released, conveyed, and con- firmed, and by these presents does grant, bargain, sell, aliene, remise, release, convey, and confirm, unto the said party of the second part, and to his heirs and assigns forever, all (here describe carefully the land or premises granted, as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof with the appurtenances : To have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, and his he'rs and assigns, to his and their own proper use, benefit, and behoof forever. And the said {name of the grantor) for himself and his heirs, executors, and administrators, does covenant, grant, and agree to and with the said party of the second part, and his heirs and assigns, that the said {flame of grantor) at the time of the sealing and delivery of these presents, is lawfully seized, in his own right, of a good, absolute, and indefeasible estate of inheritance, in fee simple, of and in all and singular the above granted and described premises, with the appurtenances thereunto belonging, and has good right, full power, and lawful authority to grant, bargain, sell, and convey the same, in manner aforesaid. And that the said parly of the second part, and his heirs and assigns, shall and may at all times hereafter, peaceably and quietly, have, hold, use, occupy, possess, and enjoy the above-granted premises, and every part and parcel thereof, with FaRMS OF DEEDS. ^-gg the appurtenances, without any let, suit, trouble, molestation, eviction, or disturbance of the said party of the first part, or his heirs or assigns, or of any other person or persons lawfully claiming or to claim the same ; and that the same now are free, clear, discharged, and unincumbered, of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and incumbrances cif what nature or kind soever. And also that the said party of the first part, and his heirs, and all and every person or persons whomsoever, lawfully cr equitably deriving any estate, right, title, or interest, of, in, or to the hereinbefore granted premises, by, from, under, or in trust for him or them, shall and will, at any time qr times hereafter, upon the reasonable request, and at the proper costs and charges in the law, of the said party of the second part, his heirs and assigns, make, do, and execute, or cause to be made, done, and executed, all and every such further and other lawful and reasonable acts, conveyances, and assurances in the law, for the better and more effectually vesting and con- firming the premises hereby granted or so intended to be, in and to the said party of the second part, his heirs and assigns, forever, as by the said party of the second part, his heirs or assigns, or his or their counsel learned in the law shall be reasonably advised or required. And the said party of the first part, for himself and his heirs, the above-described and hereby granted and released premises, and every part and parcel thereof, with the appur- tenances, unto the said party of the second part, and his heirs and assigns, against the said party of the first part, and his heirs, and against all and every person and persons whomsoever, lawfully Claiming or to claim the same, shall and will warrant and by these presents forever defend. In Witness Whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written. {Signature) {Seal.) Sealed and Delivered in the Presence of •y State of County of On the day of in the year one thousand eight hundred and before me personally came {the name of the grantor) who is known to me to be the individual^ described in, and who executed, the foregoing instrument, and acknowledged that he executed the same, as his own free act and deed. {Signature.) 470 DEEDS CONVEYING LAND. (116.) Warranty Deed, Short Form, with Release of Homestead and Dower. This Indenture, made this day of in the year of our Lord one thousand eight hundred and ' between {name, residence, and occupation of grantor, and name of his •wife) of the first part, and {name, residence, and occupation of grantee) of the second part, witnesseth, that the said party of the first part, in con- sideration of the sum of dollars in hand paid (the receipt whereof ; is hereby acknowledged), have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said party of the second part, his heirs and assigns, all that piece or parcel of land situate in • in the County of and State of to wit Qiere describe carefully the land or premises granted, as directed in Form I07). Together with the appurtenances thereunto belonging ; and all the estate, right, title, interest, claim, and demand of the said party of the first part herein. And the said {name of grantor and of his wife) parties of the first part, hereby expressly waive, release, relinquish, and convey unto the said party of the second part, and his heirs, executors, administrators, and assigns, ■ all right, title, claim, interest, and benefit whatsoever, in and to the above- described premises, and each and every part thereof, which is given by or results from any and all laws of this State, pertaining to the exemption of homesteads. And the said {naine of grantor and of his wife) for themselves and their heirs, executors, and administrators, do covenant, grant, bargain, and agree to and with the said party of the second part, and with his heirs and assigns, that the above-bargained premises in the quiet and peaceable pos- session of the said party of the second part, and his heirs and assigns, the said party of the first part shall and will warrant and forever defend. In Witness Whereof, The said parties of the first part have hereunto set their hands and seals the day and year first above written. {Signature of grantor >) {Seal.) {Signature of wife of grantor.) {Seal.) Signed, Sealed, and Delivered in Presence of State of 'ss. County. }■ I, in and for said county, do hereby certify that {name of grantor) who is personally known to me as the same person whose name is subscribed to the annexed deed, appeared before me this day, in person, and acknowledged that he signed, sealed, and delivered FORMS OF DEEDS. 47 1 the said instrument of writing, as his free and voluntary act, for the uses and purposes therein set forth. And the said {name of the wife of grantor) wife of the said {name of the grantor) having been by me examined separate and apart, and out of the hearing of her husband, and the contents and meaning of the said instrument of writing been by me fully made known and explained to her, and she also by me having been fully informed of her rights, under the Homestead Laws of this State, acknowledged that she had freely and volun- tarily executed the same, and relinquished her dower to the lands and tene- ments therein mentioned, and also all her rights and advantages, under and by virtue of any and all laws of this State relating to the exemption of home- steads, without compulsion of her said husband, and that she does not wish to retract the same. Given under my hand and official seal, this day of A.D. 18 . {Signature^ {Seal.) (117.) "Warranty Deed, with Covenant against Nuisances, without Release of Homestead or Dower. This Indenture, Made the day of in the year one thousand eight hundred and between {name, residence, and occupation of the grantor) party of the first part, and {name, residence, and occupation of the grantee) party of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of lawful money of the United States, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the said party of the second part, his heirs, exerutors, and administrators, forever released and discharged from the same, by these presents, has granted, bar- gained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents does grant, bargain, sell, aliene, remise, release, convey, and confirm, unto the said party of the second part, and to his heirs and assigns forever, all {here describe carefully the land or premises granted, as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof : And also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to' the same, .and every part and parcel thereof, with the appurtenances : to have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the sec- 472 DEEDS CONVEYING LAND. ond part, and his heirs and assigns, to his and their own proper use, benefit, and behoof forever. And the .said party of the third part, for himself and for his heirs, execu- tors, and administrators, does hereby covenant, grant, and agree to and with the said party of the second part, and his heirs and assigns, that the said party of the first part, at the time of the sealing and delivery of these pres- ents, is lawfully seized in his own right of a good, absolute, and indefeasible estate of inheritance, in fee-simple, of, and in all and singular the above- granted and described premises, with the appurtenances to them belonging; and has good right, full power, and lawful authority, to grant, bargain, sell, and convey the same, in manner aforesaid. And that the said party of the second part, and his heirs and assigns, shall and may at all times hereafter, peaceably and quietly have, hold, use, occupy, possess, and enjoy the above-granted premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, moles- tation, eviction, or disturbance of the said party of the first part, or his heirs or assigns, or of any other person or persons lawfully claiming or to claim the same : And that the same now are free, clear, discharged, and unincum- bered, of and from all former and other grants, titles, charges, estates, judg- ments, taxes, assessments, and incumbrances of what nature or kind soever. And also that the said party of the first part, and his heirs, and all and every person or persons whomsoever, lawfully or equitably deriving any estate, right, title, or interest, of, in, or to the hereinbefore granted premises, b)', from, under or in trust for him or them, shall and will, at any time or times hereafter, upon the reasonable request, and at the proper costs and ■charges in the law, of the said party of the second part, his heirs and assigns, make, do, and execute, or cause to be made, done, and executed, all and every such further and other lawful and reasonable acts, conveyances, and assurances in the law, for the better and more effectually vesting and con- firming the premises hereby granted, or go intended to be, in and to the said party of the second part, his heirs and assigns, forever, as by the said party of the second part, his heirs or assigns, or his or their counsel learned \r\ the law, shall be reasonably advised or required. And the said party of th& first part, for himself and for his heirs, the above-described and hereby granted and released premises, and every part and parcel thereof, with the appurtenances, imto the said party of the second part, and his heirs and assigns, against the said party of the first part, and his heirs, and against all and every person and persons whomsoever, lawfully claiming or to claim the same, shall and will warrant and by these presents forever defend. And the said party of the second part, for himself and for his heirs and assigns does hereby covenant to and with the said party of the first part, and with his heirs, executors, and administrators, that neither the said party ci the second part, nor his heirs or assigns, shall or will at any time hereafter erect or permit upon any part of the said lot, any slaughter-house, smith- FORMS OF DEEDS. 473 shop, forge, furnace, steam-engine, brass-foundry, nail or other iron factory, or any manufactory of gunpowder, glue, varnish, vitriol, ink, or turpentine, or for the tanning, dressing, or preparing skins, hides, or leather, or any brewery, distillery, livery-stable, or buildings for any noxious or dangerous trade or business. In Witness Whereof, the parties to these presents have hereunto inter- changeably set their hands and seals the day and year first above written. {Signature^ {Seal.) Sealed and Delivered in Presence of {Signature.) {Seal.) State of ) [-SS. County of ) On this day of in the year one thousand eight hundred and before me personally came {(he name of the party of the first part, who is the grantor) who is known by me to be the individual described, and who executed the foregoing instrument, and then and there acknowledged that he executed the same as and for his own deed. {Signature^ (118.) Brief "Warranty Deed in use in Kentucky. This Deed, made the day of 18 between {name, description, and resideiice of grantor, and name of grantor''s wife if her relinquishment of dower is intended) of the first part, and of the second part, Witnesseth, That said first party, in consideration of ha bargained and sold and hereby convey unto said second party, {fiere describe the premises granted as directed hi Form 107) to have and to hold said property unto said second party, heirs and assigns forever, " with Covenant of General Warranty," releasing all rights of homestead and dower. Witness the hand of the parties, date above. {Signatures^ {Seals.) Logan County, Sct: I, , Clerk of the County Court, do certify that the foregoing Deed was this day produced to me in my and acknowledged by to be act and dec4. Given under my hand, this day of 18 . Clerks- By D. C- 474 DEEDS CONVEYING LAND. (119.) Brief Deed of "Warranty in use in Arkansas. Know all Men by these Presents, That we (iiame, description, and residence of grantor) and {name of grantor'' s wife) liis wife, for aiid in consideration of the sum of dollars, to paid by do hereby grant, bargain, and sell unto the said and h heirs and assigns forever, the following lands, lying in the county of and State of Arkansas, to wit; {describe the premises granted as directed in Form 107,) to have and to hold the same unto the said and unto h heirs and assigns forever, with all appurtenances thereunto belonging. And hereby covenant with the said that will forever warrant and defend the title to said lands against all claims whatever. And I, wife of the said for and in con- sideration of the said sum of money, do hereby release and relinquish unto ,the said all my right of dower in and to the said lands. Witness our hands and seals on this day of 18. {Signatures.) {Seals.) State of Arkansas, County of Be it Remembered, That on this day came before the undersigned, a within and for the county aforesaid, duly commissioned and acting to me well known as the grantor in the foregoing deed, and stated that he had executed the same for the consideration and purposes therein mentioned and set forth. And, on the same day, also voluntarily appeared before me, the said wife of the said to me well known, and in the absence of her said husband, declared that she had of her own free will signed and sealed the Relinquishment of Dower in the foregoing deed, for the purposes therein contained and set forth, without compulsion or undue influence of her said husband. "Witness my hand and seal as such on this day of 18 . {Signature.) (120.) Brief "Warranty Deed in use in Florida. This Indenture, Made this day of A.D., 18 , between {name, residence, and occupation of tJie gra7itor)oiiih& first part, and {natne, residence, and occupation of the grantee) of the second part, witnesseth. That the said part of the first part, for and in FORMS OF DEEDS. 475 eonsideration of the sum of dollars, paid by the said part of the second part, the receipt of which is hereby acknowledged, ha granted, bargained, sold, conveyed, and confirmed, and by these pres- ents do grant, bargain, sell, convey, and confirm unto the said part of the second part, heirs and assigns, certain tract or parcel of land, situated in and described as follows, to wit : {Jure describe the land or premises granted, carefully, as directed in Form 107), to- gether with all and singular, the hereditaments, rights, privileges, and appur- tenances thereunto belonging, or in any wise appertaining, to have and to hold the said premises, as above described, with the appurtenances, to the said part of the second part, heirs and assigns forever. And the said part of the first part, for sel and heirs, executors, and administrators, do hereby covenant to and with the said part of the second part heirs, executors, administrators, and assigns, that well seized of the premises above conveyed, as of a good and indefeasible estate in fee-simple, and ha good right to sell and convey the same in manner and form as aforesaid ; that they are free from all encumbrances, and that the above bargained premises, in the quiet and peaceful possession of the said part of the second part, heirs or assigns, against the claims of all persons whomsoever, will warrant and for- ever defend. j In Witness "WTiereof, The said part of the first part ha hereunto set hand and seal the day .and year first above written. (Signature^ (Seal.) {Signature) {Seal.) Signed, Sealed, and Delivered in Presence of State of Florida, 1 > ss. County. ) I, wife of do hereby declare that I have joined with my said husband in the execution of the above deed for the purpose of relinquishing and renouncing my right of dower, and all my right, title, interest, in and to the above described premises and lands, or parcels of land. And I do hereby declare that I executed the same freely and voluntarily, and without any compulsion, constraint, apprehension, or fear of, or from, my said husband ; and that this acknowledgment is taken and made, signed, and sealed, separately and apart from my said husband, this day of A.D. 18 {Seal.) State of Florida, ^ >-ss. County. ) I, a in and for the said county, do hereby certify that the foregoing declaration was taken and made by the said before me separately and apart from her husband — the said ; and that, having been, by 476 DEEDS CONVEYING LAND. me, made acquainted with the contents cf the said deed before the signing thereof by hcr,.and being, by mc, examined separate and apart from her said husband, acknowledged that she had executed the same, and relinquished and renounced her dower, and all her ri^jht, lille, and interest in and to the prem- ises conveyed, freely and voluntarily, and without any compulsion, constraint, apprehension, or fear of, or from, her said husband. In Witness Whereof, I have hereunto set my hand and affixed my offi- cial seal, this day of A.D. 18 (Signature^ State of Florida, ^ >-ss. County. ) I, for said county, do certify that, on this day, personally appeared before me whose name appear signed to the foregoing deed of conveyance, and who personally known to me to be the identical person whose name subscribed to said deed as having executed the same, and acknowledged that had executed the same, as voluntary act and deed, for the uses and purposes therein expressed. In Witness W hereof, I have hereunto set my hand and affixed ray official seal this day of A.D. 18 {Signature) (121-.) BriefWarranty Deed in use in North Carolina. This Deed, Made this day of rS , by {name and occupation of grantor), of county, and State of to {jiame and occupation of grantee), of county, and State of Witnesseth : That said in consideration of dollars, to paid by , tlie receipt of which is hereby acknowledged, ha bargained and sold, and by these presents do bargain, sell, and convey to said and heirs, a tract of land in county, State of adjoining the lands of and others, bounded and described as follows, viz : Qier^ describe carefully the land or premises granted, as directed in Form 107). To Have and to Hold the aforesaid tract and all privileges and appurtenances thereto belonging, to the said heirs and assigns, to only use and behoof. And the said covenant that seized of said premises in fee, and ha right to convey the same in fee-simple, that the same are free from all incumbrances, and that will warrant and defend the said title to the same, against the claims of all persons what- soever. FORMS OF DEEDS. 477 And I wife of the said grantor, for tlie aforesaid con- siderations do hereby grant and release to the said grantee and heirs, all my right of dower and all other my right, title, and interest in and to the premises above granted. In Testimony Whereof, The said {name of grantor and his wife) have hereunto set our hands and seals, the day and year above written. (Seals) Attest: State of North Carolina, Y >-ss. County, ji I, Clerk of the. Court, do hereby certify that and his wife, appeared' before me this day, and acknowledged the due executionof the-annexed deed of ; and the said being by me pri- vately examined, separate and apart from.hersaid husband, touching her vol- untary execution of the same, doth state that she signed the same freely and voluntarily, without fear or compulsion of her said, husband or any other person, and that she doth still voluntarily assent thereto. Let the same, with this certificate, be registered. Witness my hand and official seal, this day of A.D. 18 . Clerk Court. State of North Carolina, ■) >-ss. County. ) I, Justice of the Peace, do hereby certify that and his wife, personally appeared before me this day, and acknowledged the due execution of the within deed of ; and the said being by me privately exam- ined, separate and apart from her said husband, touching her voluntary exe- cution of the, samej doth, state that she signed the same freely and volunta- rily, without fear or compulsion of her said husband or any other person, and that she doth still voluntarily assent thereto. Witness my hand and private sfeal, this day of A.D. 18 . ,J.P. (Seal.) State of North Carolina, ") [-SS. County. ) The foregoing certificate of , a Justice of the Peace of County, is adjudged to be in due form and accord- ing to law. Therefore, let the same, with this certificate, be registered. This day of 18 . Clerk Court. 478 DEEDS CONVEYING LAND. (122.) Brief "Warranty Deed in use in Mississippi. This Indenture, Made and entered into this day of in the year of our Lord, one thousand eight hundred and between {name, residence, and occupation of the grantor), the part of the first part and {name, residence, and occtipation of the grantee), part of the second part, witnesseth : That the said part of the first part, for and in consideration of the sum of the receipt whereof is hereby acknowledged, ha this day granted, bar- gained, sold, and conveyed, and by these presents do grant, bargain, sell, and convey unto the said part of the second part, and to heirs and assigns, all and singular the following described of land situate, lying, and being in the {here describe the land or premises granted, carefully, as directed in Forin 107). To Have and to Hold the said of land together with all and singular the rights, privileges, and appurtenances thereunto legally and of right belonging, to the said part of the second part, and to heirs and assigns in fee-simple, absolute forever, and the said part of the first part, for heirs, executors, administrators, and assigns, covenant and agree to warrant and forever defend the right, title, interest, and possession of the estate herein granted, to the said part of the second part, heirs and assigns, against the claim or claims of any and all persons claiming or to claim the same whatsoever either in law or equity. In Testimony Whereof, The said part of the first part ha here- unto set their hands and seals the day and year first above written. {Signatures:) {Seals) The State of Mississippi, [■ ss. Personally Appeared, Before me the above named signed, sealed, and delivered the foregoing deed, on the day and year therein written, as their act and deed, for the purposes therein set forth. (123.) "Warranty Deed in use in Missouri. This Indenture, Made on the day of A.D. one thousand eight hundred and by and between {name and occupation of the grantor, and name of his wife if she relinqitishes dower), of {residence of the grantor), part of the first part, and {name and occupation of the grantee), of the county of in the State of part of the second part ; Witnesseth, That the said part of the first part, in consideration of the sum of dollars, to paid by the said part of the FORMS OF DEEDS. 479 second part, the receipt of which is hereby acknowledged, do by these presents, grant, bargain, sell, convey, and confirm unto the said part of the second part, heirs and assigns, the following described lots, tracts, or parcels of property, lying, being, and situate in the county of and State of to-wit : {here describe the premises granted, as directed in Form 107). To Have and to Hold the premises aforesaid, with all and singular the rights, privileges, appurtenances, and immunities thereto belonging, or in anywise appertaining, unto the said part of the second part, and unto heirs and assigns forever : the said (name of the grantor), hereby covenanting that lawfully seized of an indefeasible estate in fee in the premises herein conveyed ; that ha good right to convey the same ; that the said premises are free and clear of any encum- brances done or suffered by or those under whom claim ; and that will warrant and defend the title to the said premises unto the said part of the second part, and unto heirs and assigns forever, against the lawful claims and demands of all persons whomsoever. In Witness Whereof, The said part of the first part ha here- unto set hand and seal the day and year first above written. {Signatures.) {Seals.) Signed, Sealed, and Delivered in the Presence of State of ■) County of ) Be it Kemembered, That on this day of , A.D. 18 , before the undersigned, a within and for the county of and State of personally came who are personally known to me to be the same persons whose names are subscribed to the foregoing instrument of writing, as parties hereto, and acknowledged the same to be their voluntary act and deed for the purposes therein mentioned. And the said being by me first made acquainted with the contents of said instrument, upon an examination separate and apart from husband , acknowl- edged that executed the same, and relinquishes dower in the real estate therein mentioned, freely without fear, compulsion, or undue influence of said husband . And I certify that I qualified as Notary Public and my term expires In Testimony Whereof, I have hereunto set my hand and affix my offi- cial seal, at my office, in the day and year first above written. (Seal^ 48o DEEDS CONVEYING LAND. form of acknowledgment if the grantor is single and unmarried. State of ) Vss. County of ) Be it Remembered, That on day of A.D. l8 , before the undersigned, a within and for the county of aforesaid, personally came who is personally known to me to be the same person, whose name is sub- scribed to the foregoing instrument of writing, as a party thereto, and acknowledged the same to be act and deed for the purposes therein mentioned. And the said further declared to be single and unmarried. And I certify that I qualified as Notary Public and my term expires la Testimony Whereof, I have hereunto set my hand, and affixed my official seal, at my ofSce, in the day and year first above written. {Seal.) (124.) Brief "Warranty Deed in use in "Wisconsin. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and between {name a7id occtipaiioic of the grantor), of the county of State of of the first part, and {name and occupation of the grantee) of the county of and State of of the second part. Witnesseth, That the said part of the first part, for and in consideration of the sura of dollars, to in hand paid by the part of the second part, the receipt of which is hereby acknowledged, ha given, granted, bargained, sold, remised, released, ahened, and confirmed, and by these presents do give, grant, bargain, sell, reraise, release, aliene, and confirra unto the said part of the second part heirs and assigns forever, the following described premises, real estate, lying and being in the county of State o£ to-wit ; {liere describe the land granted, as directed in Form 107). Together with all and singular, the hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversion or rever- sions, remainder and remainders, and the issues and profits thereof, and all the estate, right, title, interest, claim or demand whatsoever of the said part of the first part, either in law or equity, o£ and to the above bargained premises, with the hereditaments and appurtenances thereto belonging. To Have and to Hold the said premises above bargained, and described with the appurtenances, unto the said part ' of the second part. FORMS OF DEEDS. 481 heirs and assigns forever. And the said for and heirs, executors, and administrators, do covenant, grant, bargain, and agree, to and with the said part of the second part, heirs and assigns, that at the time of ensealing and delivery of these presents, well seized of the premises above conveyed, as of good, sure,, perfect, absolute, and indefeasible estate of inheritance in the law in fee-simple, and ha good right, full power, and lawful authority to grant, bargain, sell, and convey the same in manner and form aforesaid, and that the same is free and clear of all former and other grants, bar- gains, sales, liens, judgments, taxes, assessments, and incumbrances of what kind and nature soever, and the part of the first part, the above bargained premises, in the quiet and peaceable possession of the said part of the second part, heirs and assigns, against all and every per- son or persons lawfully claiming or to claim the whole or any part thereof, will warrant and forever defend. In "Witness Whereof, The said part of the first part ha hereunto set hand and seal the day and year first above written. [Signatures.) (Seals.) Signed, Sealed, and Delivered in Presence of State of ) >- ss. County of ) Be it Eemem'bered, That on the day of A.D. 18 personally came before me the above named to me known to be the person who executed the foregoing deed, and acknowledged the execution thereof to be . free act and deed for the uses and purposes therein mentioned. {Signature^ (126.) "Warranty Deed in use in Pennsylvania. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between (iianie, residence, and occufation of the grantor) and {nayne of the •wife of the grantor), parties of the first part, and {name, residence, and occupation of the grantee) party of the other part, Witnesseth, That the said parties of the first part, for and in consideration of the sum of lawful money of the United States of America, unto them well and truly paid by the said party of the second part, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, granted, bargained, sold, aliened, enfeoffed, released, and confirmed, and by these presents do grant, bargain, sell, aliene, enfeoff, release, and confirm unto the said (name of grantee) his heirs and assigns, the following described parcel of land ; that is to say, (here describe carefully the premises granted, as directed in Form 107.) 31 482 DEEDS CONVEYING LAND. Together with all and singular the , ways, waters, water courses, rights, liberties, privileges, hereditaments, and appurtenances what- soever thereunto belonging or in any wise appertaining, and the reversions and remainders, rents, issues, and profits thereof ; and all the estate, right, title, interest, property, claim, and demand whatsoever of the said parties of the first part in law, equity or otherwise howsoever, of, in, and to the same and every part thereof. To have and to hold the said hereditaments and premises hereby granted, or mentioned and intended so to be, with the appurtenances unto the said , his heirs and assigns, to and for the only proper use and behoof of the said , his heirs and assigns forever. And the said parties of the first part, their heirs, executors, and administrators, do by these presents, covenant, grant, and agree to and with the said , his heirs and assigns, that they, the said parties of the first part, tlieir heirs, all and singular the hereditaments and premises herein above described and granted, or mentioned and intended so to be, with the appurtenances, unto the said party of the second part, his heirs and assigns, against the said parties of the first part, and tlieir heirs, and against all and every other per- son or persons whomsoever lawful claiming or to claim the same or any part thereof, shall and will warrant and forever defend. In V/itness "Whereof, The said parties to these presents have hereunto intercliangeably set their hands and seals, the day and year first above written. (Signatures^ {Seals.) Sealed and Delivered in Presence of Received, The day of the date of the within or aforegoing Indenture of the within named On the day of Anno Domini, 18 before me personally appeared the above named {names of yrantor and grantee) and in due form of law acknowledged the above Indenture to be their and each of their act and deed, and desired the same might be recorded as such, and the said being of full age and separate and apart from said husband by me thereon privately examined, and the full contents of the above Deed being by me first made known unto did thereupon declare and say that did voluntarily and of own free will and accord, sign, seal, and as act and deed, deliver the above written Indenture, Deed or Conveyance without any coercion or compulsion of said husband. Witness my hand and seal, the day and year aforesaid. {Signature^ {Seal.) (120.) Full Warranty Deed in use in New Jersey. This Indenture, Made the day of in the year one thousand eight hundred and between {name, residence, FORMS OF DEEDS. 483 and occupation of ike grantor or grantors) part of the first part, and {name, residence, and occtipation of the grantee or grantees) part of the second part, witnesseth, that the said part of the first part, for and in con- sideration of the sum of lawful money of the United States of America, to in hand paid by the said part of the second part, at or before the ensealing and delivery of these presents, the receipt . whereof is hereby acknowledged, and the said part of the second part, heirs, executors, and administrators, forever released and discharged from the same by these presents, ha granted, bargained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents do grant, bargain, sell, aliene, remise, release, convey, and confirm unto the said part of the second part, and to heirs and assigns forever, all {fiere describe carefully the land or premises granted, substantially as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also, all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said part of the first part, of, in, or to the above described premises, and every part and parcel thereof, with the appurtenances. ■ To have and to hold all and singular the above-mentioned and described premises, together with the appurtenances; unto the said part of the second part, heirs and assigns, to own proper use, benefit, and behoof forever. And the said for heirs, executors, and administra- tors do covenant, grant, and agree, to and with the said part of the second part, heirs and assigns, that the said at the time of the sealing and delivery of these presents, lawfully seized in of a good absolute and indefeasible estate of inheritance in fee- simple, of and in all and singular the above granted, bargained, and de- scribed premises, with the appurtenances, and ha good right, full power, and lawful authority to grant, bargain, sell, and convey the same in manner and form aforesaid. And that the said part of the second part, heirs and assigns, shall and may at all times hereafter, peaceably and quietly have, hold, use, occupy, possess, and enjoy, the above granted premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, moles- tation, eviction, or disturbance, of the said part of the first part, heirs or assigns, or of any other person or persons lawfully claiming, or to claim the same. And that the same now are free, clear, discharged, and unincumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and incumbrances of what nature or kind soever. And also, that the said part of the first part, and heirs, and all 484 DEEDS CONVEYING LAND. and every other person or persons whomsoever lawfully or equitably deriving any estate, right, title, or interest, of, in, or to the hereinbefore granted premises, by, from, under, or in trust for them, shall and will at any time or times hereafter, upon the reasonable request, and at the proper costs and charges i.i the Uw, of the said part of the second part, heirs and assigns ; make, do, and execute, or cause or procure to be made, done, or executed, all and every such further and other lawful and reasonable acts, conveyances, and assurances in the law for the better and more effectually vesting and confirming the premises hereby intended to be granted, in and to the said part of the second part, heirs and assigns forever, as by the said part of the second part, heirs or assigns, or counsel learned in the law, shall be reasonably devised, advised, or required. And the said heirs, the above described and hereby granted and released premises, and every part and parcel thereof, with the appurtenances, unto the said part of the second part, heirs and assigns, against the said part of the first part, and heirs, and against all and every person and persons whomsoever, lawfully claiming or to claim the same, shall and will warrant, and by these presents forever defend. In "Witness Whereof, the said part of the first part ha hereunto set hand and seal the day and year first above written. {Signatures.) {Seals.) Signed, Sealed, and Delivered in the Presence of ss. State of County. Be it Remembered, Tliat on this day of in the year one thousand eight hundred and before me personally appeared who, I am satisfied, the grantor in the within Indenture named ; and I having first made known to the contents thereof, did acknowledge that signed, sealed, and delivered the same as voluntary act and deed for the uses and purposes therein expressed. And the said being by me privately examined, separate and apart from said husband did further acknowledge that signed, sealed, and delivered the same as voluntary act and deed freely, and without any fear, threats, or compulsion of or from said husband. (127.) A Brief "Warranty Deed in use in Ohio. To all people to whom these Presents shall come, Greeting : Know ye, that I {or we), {name, residence, and occupation of grantor) for the consideration of received in full satisfaction of FORMS OF DEEDS. .g^ {iiame, residence, and occupation of grantee) do give, grant, bargain, sell, and confirm unto tlie said tlie following described tract or lot of land, situate in the of in the County of and State of {here describe carefully the land or premises granted, as directed in Form loy) be the same more or less, but subject to all legal highways. To have and to hold the above granted and bargained premises, with the appurtenances thereto belonging, unto the said {name of grantee) heirs and assigns forever, to {him, or them) and {his, or their) own proper use and behoof. And I {or we) the said {name of grantor, or grantors) do for heirs, executors, and administrators, covenant with the said heirs and assigns, that at and until the ensealing of these presents, well seized of the premises, as a good and indefeasible estate in fee-simple, and have good right to bargain and sell the same in manner and form as above written, and that the same be free from all encumbrance whatsoever. And furthermore, the said do by these presents bind heirs forever to warrant and defend the above granted and bargained premises to the said heirs and assigns, against all lawful cliims and demands whatsoever. And 1, (wife of) the said do hereby remise, release, and forever quitclaim unto the said heirs and assigns, all my right and title of dower in the above described premises. In Witness Whereof, have hereunto set hand and seal the day of in the year of our Lord one thousand eight hundred and {Signatures.) {Seals.) Signed, Sealed, and Delivered in the Presence of The State of Ohio, ) Vss. County of ) 187 Before me, a within and for said County, personally appeared the said and acknowledged that did sign and seal the foregoing instrument, and that the same is free act and deed. I further Certify that I did examine the said separate and apart from her said husband, and did then and there make known to her the contents of the foregoing instrument, and upon that examina- tion she declared that she did voluntarily sign, seal, and acknowledge the same, and that she was still satisfied therewith. In Testimony Whereof, I hereunto set my hand and official seal this day of A.D. 18 {Signature^ 486 DEEDS CONVEYING LAND. (128.) Brief "Warranty Deed in use in Minnesota. This Indenture, Made this day of A.D. one thousand eight hundred and between {najiie and occupation of the grantor) of the County of and State of .part of the first part, and {na7ne and occupation of the grantee) of the County of and State of part of the second part, Witnesseth, That the said part of the first part, in consideration of the sum of dollars, to in hand paid by the part of the second part, the receipt whereof is hereby acknowledged, do by these presents grant, bargain, sell, and convey, to the said part of the second part, heirs and assigns forever, all Ihe following described piece or parcel of land, lying and being in the County of and State of Minnesota, to wit (here describe carefully the land or premises granted, as directed in Form 107). To Have and to Hold the Same, Together with all the heredita- ments and appurtenances thereunto in any wise appertaining. And the said part of the first part, do covenant with tl>e said part of the second part heirs and assigns, as follows : That lawfully seized of said premises, in fee-simple, and that good right and power to grant and convey the same ; that the same free from all incumbrances, and that the said part of the second part, heirs and assigns, shall quietly enjoy and possess the same ; and that the said part of the first part will warrant and defend the title to the same against all lawful claims. In Testimony "Whereof, The said part of the first part hereunto set hand and seal , the day and year above written. {Signatures.) {Seals.) Signed, Sealed, and Delivered in Presence of State of Minnesota, County of On this day of A. D. 18 , before me the undersigned personally came to me personally known to be the identical individual described in, and who executed the foregoing deed, and acknowledged that executed the same freely and voluU' tarily, for the uses and purposes therein expressed. {Signature^ FORMS OF DEEDS. .gl (129.) "Warranty (or Gu^ranty) Deed in use in Louisiana. STATE OF LOUISIANA, Parish and City of New Orleans. Be it Known, That on this day of in the year of our Lord one thousand eight hundred and and of the Independence of the United States of America, the one hundred and , before me, , a Notary Public in and for the Parisli of Orleans, State of Louisiana, duly commissioned and qualified, and in the presence of the witnesses hereinafter named and under- signed, personally came and appeared {name, resilience, and occupation of grantor or grantors) who declared that for the consideration and on the terms and conditions hereinafter expressed (he or they) by these presents grant, bargain, sell, convey, transfer, assign, and set over, with a full guarantee against all troubles, debts, mortgages, liens, evictions, alienations, or other incumbrances of every nature and kind whatsoever, unto (name, residence, and occupation of grantee or grantees) here present heirs and assigns, and acknowledging delivery and possession thereof. Lot of land, together vfith the improvements thereon, and all rights, ways, privileges, and appurtenances thereunto belong- ing or in any wise appertaining, situate in the (here describe the land or premises granted, fnlly and accurately and substan- tially, as directed in Fonn 107.) To Have and to Hold the said property and appurtenances unto the said purchaser , heirs and assigns forever. And the said vendor hereby bind and heirs forever to warrant and defend the property and appurtenances herein conveyed, against all legal claims and demands whatever. The said vendor moreover transfer unto the said purchaser all the rights and actions of warranty to which or mny be entitled, against all the former proprietors of the property herein conveyed, subro- gating said purchaser to the said right and actions to be by enjoyed and exercised in the same manner as they might have been by the said vendor. This Sale is Hade and Accepted, for and in consideration of the price and sum of And in order to secure the punctual payment of the said promissory note , at maturity, as well as of all interest to accrue thereon, and in order, furthermore, to secure the payment and reimbursement of any and all law- yers' fees that may be expended or incurngd in the event of suit being insti- tuted to enforce the payment of said note in principal or interest, or any part thereof (which lawyers' fees, however, are fixed at five per cent, on the amount so in suit, and said purchaser consent and 488 DEEDS CONVEYING LAND. agree to pay and allow the same), the said purchaser hereby specially mortgage , affect , and hypothecate -the herein described and conveyed property unto and in favor of the said vendor , as well as of any and all future owner or owners of the said note ; promising and binding and heirs not to alienate, deteriorate, nor encumber the said property to the prejudice of this mortgage, nor of the special lien and vendor's privilege which the said vendor hereby retain on said property until the full and final payment of said note. And the said declared that do by these presents, bind and obligate to cause all and singu- lar the buildings and improvements on the herein described and conveyed property to be insured and kept insured against the risk of fire, by one of the insurance companies of this city, in the sum of dollars, until the full and final payment of the afore described , and to transfer and deliver unto the said vender or any and all future owner or owners of the said the policy or policies of the said insurance or insurances ; in default whereof, said vendor or any and all future owner or holders of said is and are hereby authorized to cause such insurance or insurances to be made and effected at the cost, charge, and expense of the said purchaser . But this clause shall not be construed as obligatory on such holder or holders, or as making them liable for any loss, damage, or injury which may result from the non-insurance of said buildings. According to the several certificates of the Recorder of Morlgaces and the Register of Conveyances in and for this City and Parish, bearing even date herewith, and hereto annexed for reference, it appears that the said vendor has not alienated the herein described and conveyed property, and that the same is free from all mortsrages or other incumbrances in his And now to these Presents, personally came and appeared. Madam who after having taken cognizance of the foregoing act, which I, the said Notary, carefully read and explained to declared and said that approve and ratif the same, and that it is wish and intention to release in favor of the said purchaser , the property herein described, from the matrimonial, dotal, paraphernal, and other rights, and from any claims, mortgages, or privileges to which may be entitled, whether by virtue o£ marriage with said husband, or otherwise. Whereupon, I, the said Notary, did inform the said apart, and out of the presence and hearing of her husband, and before re- ceiving her signature hereto, that by the laws of this State, the wife has a legal mortgage on the property df her husband : First. For the restitution of her dowry, and for the reinvestment of the dotal property soLl by her husband, and which she brought in marriage, reckoning from the celebra- FORMS OF DEEDS. 489 tion of the marriage. Secondly. For the restitution and reinvestment of the dotal property by her acquired since marriage, whether by succession or donation, from the day the succession was opened or the donation perfected. Thirdly. For nuptial presents. Fourthly. For debts by her contracted with her husband. And Fifthly. For the amount of her paraphernal prop- erty alienated by her and received by her husband, or otherwise disposed of for his individual interest : That in malting her intended renunciations she would deprive herself irrevocably and forever of all the rights of reclamation against the property herein described, whether under mortgage privilege or otherwise. And the said did thereupon declare unto me. Notary, that she was fully aware of and acquainted with the nature and extent of the matrimonial, dotal, p:iraphernal, and other rights and privileges thus secured to her by the law on the property of her said husband, and that s"he never- theless did persist in her intention of renouncing, and does formally re- nounce, not only all the rights, claims, and privileges hereinbefore enumerated and described, but all others of any nature and kind whatever to which she is, or may be entitled, by any laws now or heretofore in force in the State of Louisiana. And the said being now present, aiding and authorizing the said in the execution of these presents, the said did again declare that did and do hereby make a formal renunciation and relinquishment of all said matrimonial, dotal, paraphernal, and other rights, claims, and privileges, in favor of said purchaser , binding and heirs at all times to sustain and acknowledge the vahdity of this renunciation. Thus Done and. Passed, in my office, at New Orleans aforesaid, in the presence of and witnesses, both of this city, who hereunto sign their names with the parties, and me, the said Notary, the day and date aforesaid. (^Signatures' (Seals.) (130.) Deed of G-rant and Quitclaim of Property and Mining Rights, in use in California and other Mining States. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between (name, residence, and occupation of the grantor) the party of the first part, and (name, residence, and occupation of the grantee) the part of the second part, Witnesseth, that the said part of the first part, for and in considera- tion of the sum ot dollars, of the United States of America, to in hand paid by the said part of the second part, the receipt whereof is hereby acknowledged, ha 490 DEEDS CONVEYING LAND. granted, bargained, sold, remised, rele:ised, and forever quitclaimed, and by tliese presents do grant, bargain, sell, remise, release, and forever quit- claim unto the said part of the second part and to heirs and assigns (here describe carefully the la>id or premises granted, as directed in Eorm 107). Together with all the dips, spurs, and angles, and also all the metals, ores, gold, and silver-bearing quarlz, rock, and earth therein ; and all the rights, privileges, and franchises thereto incident, appendant, and appur- tenant, or therewith usually had and enjoyed ; and, also, all and singular the tenements, hereditaments, and appurtenances thereto belonging, or in any wise appertaining, and the rents, issues, and profils thereof ; and, also, all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said part of the first part, of, in, or to the said premises, and every part and parcel thereof, with the appurtenances. To Have and to Hold, all and singular the said premises, together with the appurtenances and privileges thereto incident, unto the said part of the second part, heirs, and assigns forever. In "Witness Whereof, the said part of the first part, ha hereunto set hand and seal the day and year first above written. {Signatures.) {Seals.) Signed, Sealed, and Delivered in the Presence of (131.) "Warranty Deed made ^^nder the Statute of Illinois. This Indenture Witnesseth, That the grantor , {name and occupation of the grantor) of the {residence of the grantor) in the County of and State of for and in consideration of the sum of dollars, in hand paid. Convey and Warrant to {name and occupation of grantee) of the {residence of grantee) County of and State of the following described real estate, to wit, {]te7-e describe carefully the land or premises granted, as directed in Form 107) situated in the County of in the State of Illinois, hereby releasing and waiving all rights under and by virtue of the Homestead Exemption Laws of this State. Dated this day of A.D. 18 . {Signatures^ {Seals.) State of ') Vss. County of ) I, in and for said County, in the State aforesaid, do hereby certify, that personally known to me to be the same person whose name subscribed to the foregoing instrument, ajjpeared before me this day in person, and acknowledged that he signed, sealed, and delivered the said instrument as free and voluntary act, for the uses FORMS OF DEEDS. 401 and purposes therein set forth, including the release and waiver of the right of homestead. Given under my hand and seal, this day of 18 . (^Signature.) (132.) Warranty Deed in use in South Carolina, THE STATE OF SOUTH CAROLINA. , Know all Men by these Presents, That {name, residence, and occupation of grantor) in the State aforesaid, in consideration of the sum of to in hand paid at and before the sealing of these presents, by {name, residence, and occupation of grantee) in the State aforesaid (the receipt whereof is hereby acknowledged) have granted, bargained, sold, and released, and by these presents do grant, bar- gain, sell, and release unto the said (name of grantee) {here describe the land or pretnises granted, carefully, as directed in Form 107). Together with all and singular the -rights, members, hereditaments, and appurtenances to the said premises belonging, or in anywise incident or appertaining. To Have and to Hold all and singular the premises before mentioned unto the said heirs and assigns forever. And do hereby bind (myself), and heirs, executors, administrators, to warrant and forever defend all and singular the said premises unto the said , heirs and assigns, against and heirs, and all and every other person or persons liwfully claiming or to claim the same, or any part thereof. And , the said , for scl and heirs, executors, and administrators, do covenant, promise, grant, and agree to and with the said _ heirs and assigns, by these presents, in manner and form following : that is to say. That the said now at the time of the sealing and delivery of these presents, lawfully and absolutely seized of and in the said and all and singular other the premises hereinbefore mentioned, and intended .to be hereby granted and released, and every part and parcel thereof, with their and every of their appurtenances, cf a good, sure, perfect, and absolute state of inheritance, in iee-simple, without any manner cf condition, trust, proviso, power of revocation, or limitation, or any use or uses, or other restraint, matter, or thing whatsoever, to alter, change, charge, defeat, or evict the same. And also, that the said now ha in sel good right, full power, and lawful and absolute authority to grant, release, and confirm the said and all and singular other the premises hereinbefore mentioned, and intended to be hereby granted and released, and every part and parcel thereof, with their and every of their appurtenances, unto the said heirs and assigns forever, as aforesaid. And also, that it shall and may be lawful to and for the said heirs and assigns, from time to time, and at all times, forever 492 DEEDS CONVEYING LAND. hereafter, peaceably and quietly to enter into, have, hold, occupy, possess, and enjoy the said and all and singular other the premises hereinbefore mentioned and intended to be hereby granted and released, and every part and parcel thereof, with their and every of their appurtenances, without any of the lawful let, suit, trouble, molestation, eviction, or inter- ruption of the said executors or administrators, or any other person or persons whatsoever : And that free and clear, and freely and clearly and absolutely acquitted, exonerated, and discharged of and from all and all mar.ner of former and other J^ifts, grants, bargains, sales, uses, wills, initials, jointers, dowers, juc'gments, executions, charges, and incumbrances whatsoever, had, made, done, committed, or suffered by the said or any other person or persons whatsoever. And lastly, that the said and heirs, and all and every other person or persons lawfully claiming cr to claim any estate, right, title, trust, or interest of, in, or to the said , and all and singular other the premises hereinbefore mentioned, and intended to be hereby granted and released, or any part or parcel thereof, shall and will, from ar.d at all times hereafter, at the reasonable request and proper costs and charges of t!ie law, of the said heirs and assigns, make, do, acknowledge, and execu'e, or cause and procure to be made, done, acknowledged, and executed, a'l and every such further and other lawful and reasonable act and acts, thing and tilings, conveyances and assur- ances in the law whatsoever, fcr the further,'belter, and more perfect and absolute granting, conveying, and assur'nj tlie said and all and singul:.r other the premises hereinbefore mentioned, and intended to be hereby granted and released, and every part and parcel thereof, with their and every of their appurtenances, to and for the use and behoof of the said heirs and assigns forever, as by him or them, or by his or their counsel, learned in the law, shall be reasonably devised, or advised and required. "Witness hand and seal this day of in the year of our Lord one thousand eight hundred and and in the year of the Independence of the United States of America. (Signature^ Signed, Sealed, and Delivered in the presence of The State of South Carolina, County. Personally appeared before me, and made oath that saw the within named sign, seal, and as act and deed, deliver the within written deed ; and that with witnessed the execution thereof. Sworn to before me, this day cf i8 . (Signature^ FORMS OF DEEDS. .g. The State of South Carolina,'] County. I, do hereby certify unto all whom it may concern, that Mrs. wife of the within named did this day appear before me, and upon being privately and separately examined by me, did declare that she does freely, voluntarily, and without any manner of compulsion, dread, or fear of any person or persons whomsoever, renounce, release, and forever relinquish unto the within named heirs and assigns, all her interest and estate, and also all her right and claim of dower of, in, or to all and singular the premises within mentioned and released. Given under my hand and seal, this day of Anno Domini 18 . {Signattire^ (133.) Brief "Warranty Deed in use in California. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between (name, residence, and occupation of grantor or grantors), part of the first part, and {name, residence, and occupation of the grantee or grantees), the part of the second part, witnesseth, that the said part of the first part, for and in consideration of the sum of dollars of the United States of America, to in hand paid by the said part of the second part, the receipt whereof is hereby acknowledged, do by these presents, grant, bargain, sell, convey, and confirm unto the said part of the second part, and to heirs and assigns, forever {here describe carefully the land or premises granted, substantially as directed in Forjn 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging, or in any wise appertaining, and the rents, issues, and profits thereof. T0| Have and to Hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said part of the second part, and to heirs and assigns forever. And the said part of the first part, and heirs, the said premises, in the quiet and peaceable possession of the said part of the second part, heirs and assigns, against the said part of the first part, and heirs, and against all and every person and persons whomsoever, lawfully claiming or to claim the same, shall and will warrant, and by these presents forever defend. In Witness Whereof, the said part of the first part ha hereunto set hand and seal the day and year first above written. {Signatures^ {Seals.) Signed, Sealed, and Delivered in the Presence of 494 DEEDS CONVEYING LAND. (134.) Trust Deed, by way of Mortgage, in use in Virginia and "West Virginia, This Deed, made this day of in the year i8 , between {name, residence, and occupation of grantor or grantors) part of the first part, and {name, residence, and occupation of the grantee or grantees) -piiXt of the second part, witnesseth : That the said part of the first part do grant unto the said part of the second part, the following property, to wit, (here describe carefully the land or premises granted, as directed in Form 107). In Trust to secure to of the the payment of the sum of in the event that default shall be made in the payment of either of the above-mentioned as they become due and payable, then the trustees, or either of them, on being required to do so by executors, administrators, or assigns, shall sell the property hereby con- veyed. And it is covenanted and agreed between the parties aforesaid, that in case of a sale the same shall be made after first advertising the time, place, and terms thereof, for days, in some newspaper published in the , and upon the following terms, to wit : for cash as to so much of the proceeds as may be necessary to defray the expenses of execut- ing this trust, the fees for drawing and recording this deed, if then unpaid, and to discharge the amount of money then payable upon the said and if at the time of such sale any of the said shall not have become due and payable, and the purchase money be sufficient, such part or parts of the said purchase money as will be suEficient to pay off and dis- charge such remaining shall be made payable at such time or times as the said remaining will become due ; the payment of which part or parts shall be properly secured ; and in case the net proceeds of sale shall be insufficient to pay off all of the said in full, then the same shall be applied towards the payment of the said in the order of their maturity, intending hereby to create a priority in favor of each of said over any other which may become due and payable subsequent thereto ; and if (here be any residue of said purchase money, the same shall be made payable at such time, and secured in such manner as the said pnrt of the first part executors, adminis- trators, or assigns shall prescribe and direct, or in case of failure to give such direction, at such time and in such manner as the said Trustees, or either of ihem, shall think fit. The said part of the first part covenant to pay all taxes, assessments, dues, and charges upon the said property hereby conveyed, so long as or heirs or assigns sha'l hold the same, and hereby waive the benefit of Homestead Exemption as to the debt secured by this deed. If no default shall be made in the payment of either of the above-men- tioned then upon the request of the part of the first part, a FORMS OF DEEDS. 4^5 good and sufficient deed of release shall be executed to at own proper costs and charges. "Witness the following signature and seal . {Signatures?) {Seals^ State of Virginia. of to wit: I, for the aforesaid, in the State of Virginia, do certify that whose name signed to the writing above, bearing date on the day of 18 , ha acknowledged the same before me in my aforesaid. Given under my hand, this day of iS . Memo. — To be acknowledged before a yitsiice or Notary PicbHc. State of Virginia, of to wit : for the of in the State of Virginia, do certify that the wife of whose names are signed to the writing above, bearing date on the day of 18 , personally appeared before in the aforesaid, and being examined by privily and apart from her husband, and having the writing aforesaid fully explained to her, she, the said acknowledged the said writing to be her act, and declared that she- had willingly executed the same, and does not wish to retract it. Given under hand this day of 18 . Memo. — Before two Justices or a Notary Public. (136.) Deed of Trust to Secure a Debt, Payable in Gold Coin, in Use in California. This Deed of Trust, made this day of A. D. eighteen hundred between {najiie, residence, and occupation of the debtor and grantor) of the first part, and {name, residence, and occupation of the grantee or grantees, trustee or trustees) of part of the second part, and {name, residence, and occupation of creditor, for 'whose security the trust is created) of the third part, witnesseth : Whereas, the said ha borrowed and received of the said in gold coin of the United States, the sum of dollars, and ha agreed to repay the same on the day of A. D. eighteen hundred and to the in like gold coin, with interest, according to the terms of a certain promissory note, of even date herewith, executed and delivered there- for by the said Now this Indenture Witnesseth, That the said part of the first part, 496 DEEDS CONVEYING LAND. in consideration of the aforesaid indebtedness to the and of one dollar to in hand paid by the part of the second part, the receipt whereof is hereby acknowledged, and for the purpose of securing the payment of said promissory note, and of any sum or sums of money, with interest thereon, that may be paid or advanced by, or may otherwise be due to the part of the second or third part, under the provisions of this in- strument, do by these presents grant, bargain, sell, convey, and confirm unto the part of the second part in joint tenancy, and to the survivor of them, their successors and assigns, the piece or parcel of land situate in the , county of , State of , described as follows : {here describe carefully the land or premises conveyed substantially as directed in Form 107.) And also, all the estate and interest, homestead, or other claim or demand, as well in law as in equity, which the said part of the first part now ha or may hereafter acquire of, in, and to said premises, with the appurte- nances ; To have and to hold the same to the parties of the second part, as joint tenants (and not as tenants in common), with right of survivorship as such, and to their successors and assigns (said parties of the second part and their successors being hereby expressly authorized to convey, subject to the trusts herein expressed, the lands above described), upon the trusts and con- fidences hereinafter expressed, to wit : First, During the continuance of these trusts, the party of the third part and the parties of the second part, their successors and assigns, are hereby authorized to pay, without previous notice, all taxes, assessments, and liens now subsisting, or which may hereafter be imposed by national, state, county, city, or other authority, upon said premises, and on the money so borrowed as aforesaid, to whomsoever assessed, and all or any incumbrances now sub- sisting, or that may hereafter subsist thereon, whicli may in their judgment affect said premises or these trusts, at such time as in their judgment they may deem best; or in their discretion, for the benef.t and at the expense of said part of the first part, to contest the payment of any such taxes, assess- ments, liens, or incumbrances, or defend any suit or proceeding instituted for the enforcement thereof; and in like manner to prosecute or defend any suit or proceeding that they may consider proper to protect the title to said premises, and these trusts shall be and continue as security to the party of the tiiird fr.rt, and their assi;;ns, for the repayment, in gold coin of the United States, cf the moneys so borrowed by the and the interest thereon, and of all amounts so paid out, and costs and expenses incurred as aforesaid, whether paid by the part cf the second or third j crt, with interest en such payments at the rate cf per cent, per month until final repayment. Secondly, In case the said sha'l v.-cll and truly pay, or cause to be paid at maturity, in gold coin as aforesaid, all sums of money so borrowed as aforesaid, and the interest thereon, and shall FORMS OF DEEDS. 4^7 upon demand repay or deposit all other moneys secured, or intended to be secured hereby, and also the reasonable expenses of this trust, then the par- ties of the second part, the survivor of them, their successors and assigns, shall reconvey all the estate in the premises aforesaid to them by this instru- ment granted unto heirs and assigns, at request and cost. Thirdly, If default shall be made in the payment of any of said sums of principal or interest, when due, in the manner stipulated in said promissory note, or in the reimbursement of any amounts herein provided to be paid, or of any interest thereon, then the said parties of the second part, or the sur- vivor of them, their successors or assigns, on application of the party of the third part, or their assigns, shall sell the above granted premises, or such part thereof as in their discretion they shall find it necessary to sell in order to accomplish the objects of these trusts, in the manner following, namely : They shall first publish the time and place of such sale, with a descrip- tion of the property to be sold, at least a week for weeks, in some newspaper published in the county of and may from time to time postpone such sale by publication ; and, on the day of sale so advertised, or to which such sale may be postponed, they may sell the property so advertised, or any portion thereof, at public auction, in any county where any part of said property may be situated, to the highest cash bidder ; and the holder or holders of said promissory note, their agent or assigns, may bid and purchase at such sale. And the part of the second part or assigns, shall establish as one of the conditions of such sale, that all bids and payments for said property shall be made in like gold coin as aforesaid, and upon such sale shall make, execute, and after due payment made, shall deliver to the purchaser or purchasers, his or their heirs and assigns, a deed or deeds of grant, bargain, and sale, of the above granted premises, and out of the proceeds thereof shall pay; First, The expenses thereof, together with the reasonable expenses of this trust, including counsel fees of dollars, in gold coin, which shall become due upon any default made by the in any of the payments aforesaid. Second, All sums which may have been paid by the said or the part of the second part, successors or assigns, or the holders of the note aforesaid, and not reimbursed, and which may then be due, whether paid on account of incumbrances or insurance, as afore- said, or in the performance of any of the trusts herein created, and with whatever interest may have accrued thereon ; next the amount due and unpaid on said promissory note, with whatever interest may have accrued thereon ; and lastly, the balance or surplus of such proceeds, if any, to said heirs or assigns. And in the event of a sale of said premises, or any part thereof, 32 498 DEEDS CONVEYING LAND. and the execution of a deed or deeds therefor, under these trusts, then the recitals therein of default and publication shall be conclusive proof of such default and of the due publication of such notice ; and any such deed or deeds, with such recitals therein, shall be effectual and couclusive against the said part of the first part, heirs or assigns, and all other persons ; and the receipt for the purchase-money contained in any deeds executed to the purchaser, as aforesaid, shall be a sufficient discharge to such pur- chaser from all obligation to see to the proper application of the purchase- money, according to the trusts aforesaid. In Witness "Whereof, the said part of the first part ha hereunto set hand and seal the day and year first above written. (Signatures.) {Seals.) Duly Signed, Sealed, and Delivered.in the presence of (136.) Trust Deed to Seciire Payment of a Promissory Note, in use in Colorado. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and between {^ame and occupation of grantor or grantors), oi the county of (residence) and State of Colorado, part of the first part; and (name and occupation of grantee or grantees) of the county of (residence) and State of Colorado, party of the second part, witnesseth, That Whereas, The said part of the second part, ha executed promissory note bearing even date herewith, for the sum of dollars, payable to the order of with interest thereon, from until paid, at the rate of per cent, per payable or to be counted as principal. And whereas, the said part of the first part desirous of secur- ing not only the prompt payment of said promissory note and the interest that. may accrue thereon, in whose hands soever the same may be. Now therefore, the said part of the first, in consideration of the prem- ises and for the purpose aforesaid, and in the further consideration of one dollar to in hand paid by the said party of the second part, the receipt whereof is hereby confessed, ha and hereby do grant, bargain, sell, and convey unto the said party of the second part, in trust, forever, all the lands and premises situate in the county of and State of Colorado, known and described as follows, to wit : (here describe carefully the land or premises granted, as directed in Form 107.) To Have and to Hold the same, together with 3II and singular the tenements, hereditaments, privileges, and appurtenances thereunto belong- ing, to the said party of the second part, or upon his failure to act, to his successor, in trust forever : In trust, nevertheless, that in case of default in FORMS OF DEEDS. ^go the payment of the said promissory note or any part thereof, or the interest thereon, according to the tenor and effect of said note or in case of the breacli of any of the covenants or agreements, herein mentionedj then on the application of the legal holder of said promissory note or either of them, to sell and dispose of the said, premises, and all the right, title, benefit, and equity of redemption of the said part of the first part heirs and assigns therein, at public auction, at the in the county of and State of Colorado, or on said premises, or on any part thereof; as may be specified in the notice of such sale, for the highest and best price the same will bring in cash, weeks' notice having been previously given of the- time and place of such sale, by advertisement in any newspaper at that time published in said last-named' county, and to make, execute, and deliver to the purchaser or purchasers at such sale, good and sufficient deed or deeds of conveyance for the premises sold ; and out of the proceeds or avails of such sale and the purchase-money paid thereon, after first paying all costs of advertising, sale, and conveyance, including the reasonable fees and commissions of said party of the second part, and all other expenses of this trust, including all moneys advanced for insurance, taxes, and other liens or assessments, with interest thereon, at per cent, per then to pay the principal of said note whether due and payable by the terms thereof or not, and interest due on said note up to the time of such sale, rendering the overplus (if any) unto the said part of the first part legal representatives or assigns, on reasonable request (and it shall not be obligatory upon the purchaser or purchasers at any such sale to see to the application of the purchase money); which sale or sales so made shall be a perpetual bar, both in law and equity, against the said part of the first part, heirs and assigns, and all other persons claiming the premises aforesaid, or any part thereof, by, from, through, or under said part of the first part, or any of them; And in case of any suit or proceeding at law or in equity wherein said party of the second part shall be made a party by reason of his trusteeship under this deed, he shall be allowed and paid his reasonable costs, charges, attorney's and solicitor's fees, in such suit or proceeding by said part of the first part, and the same shall be a further charge and lien upon said, premises under this deed, to be paid out of the proceeds of sale thereof, as aforesaid, with interest thereon at the rate of per cent per if not otherwise paid by said part of the first part. And the said party of the second part, or his successor in trust, with or without re-advertising, is hereby authorized and empowered to postpone or adjourn said sale from time to time, or any length of time, at his discretion; and also to sell the said premises en masse or in separate parcels, as he may prefer or think best. And the said for and heirs, executors, and administrators covenant and agree to and with the said party of the second part, and his successor in trust 500 DEEDS CONVEYING LAND. hereinafter named, that at the time of the ensealing and delivery of these presents well seized of said premises in fee-simple, and ha good right, full power, and lawful authority to grant, bargain, and sell the same in manner and form as aforesaid ; that the same are free and clear of all liens and incumbrances whatsoever. And the said part of the first part will in due season pay all taxes and assessments on said premises ; and at the request of the party of the second part will keep all buildings that may at any time be on said premises, during the continuance of said indebtedness, insured in such company or companies as the holder or holders of said note may from time to time direct; for such sum or sums as such company or companies will insure for, not to exceed the amount of said indebtedness, except at the option of said part of the first part, and will assign, with proper consent of the insurers, the policy or policies of insurance to said party of the second part, as further security for the indebtedness aforesaid. And in case of the refusal or neglect of said part of the first part, or either of them, thus to insure, or assign the policies of insurance, or to pay such taxes or assessments, said party of the second part, or his successor in trust, or the holder of said note or either of them, may procure such insurance, or pay such taxes or assess- ments, and all moneys thus paid, with interest thereon at per cent, per shall become so much additional indebtedness, secured by this deed of trust, and to be paid out of the proceeds of sale of the lands and premises aforesaid, if not otherwise paid by said part of the first part, and the said premises in the quiet and peaceable possession of the party of the second part or successor in trust against all and every other person lawfully claiming or to claim the whole, or any part thereof, the said part of the first part shall and will warrant and forever defend. And it is stipulated and agreed, that in case of default in any of said pay- ments of principal or interest, according to the tenor and effect of said prom- issory note aforesaid, or either of them, or any part thereof, or of a breach of any of the covenants or agreements herein by the part of the first part executors, administrators, or assigns, then and in that case, the whole of said principal sum hereby secured, and the interest thereon to the time of sale, may at once, at the option of the legal holder thereof, become due and payable, and the said premises be sold in the manner and with the same effett as if the said indebtedness had matured. And it is further agreed and especially understood that in case of the death, resignation, removal, or absence from the of or refusal, or failure, or inability of said party of the second part to act, then shall be and hereby is appointed and made successor in trust of the said party of the second part, and in such event the said lands and premises shall become vested in such new trustee and all the power and authority by this indenture granted to the said party of the second part shall accrue to and be exercised by the said FORMS OF DEEDS. tOI the same to all intents and purposes as if he had been made the party of the second part herein. In Witness Whereof, The said part of the first part ha hereunto set hand and seal the day and year first above written. {Signatures) {Seals.) {Witness) State of Colorado, ) [-SS. County op ) I> in and for said county, in the State aforesaid, do hereby certify that personally known to me as the person whose name subscribed to the annexed deed, appeared before me this day in person and aclcnowledged that signed, sealed, and delivered the said instrument of writing as free and voluntary act, for the uses and purposes therein set forth. Given under my hand and seal, this day of in the year of our Lord one thousand eight hundred and {Signaizire) (137.) Deed of Grant with "Warranty against Claimants through the Grantor, in use in Delaware. This Indenture, made the day of in the year of our Lord one thousand eight hundred and between {name and occupation of grantor), and his wife, of the county of and State of , of the first part, and {name and occupation of the grantee), of the same county and State, of the second part, Witnesseth : that the said parties of the first part, for and in consideration of the sum of dollars, lawful money of the United States of America, to them well and truly paid, by the said party of the second part, at and before the sealing and delivery of' these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, aliened, enfeoffed, released, conveyed, and confirmed, and by these presents doth grant, bargain, sell, aliene, enfeoff, release, convey, and confirm unto the said and to his heirs and assigns, all that lot, piece, or parcel of land, {here describe the premises granted as directed in Form 107), Together with all and singular the buildings, improvements, ways, woods, waters, water-courses, rights, liberties, privileges, hereditaments, and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and the reversions and remainders, rents, issues, and profits thereof ; and all the estate, right, title, interest, property, claim, and demand whatsoever of them, the said parties of the first part, in law, equity, or otherwise, howsoever, of, in, and to the same, and every part and parcel thereof. 502 DEEDS CONVEYING LAND. To Have and to Hold the said land, messuage, hereditaments, and prem- ises hereby granted or mentioned, or intended so to be, Avith the appurte- nances, unto the said , his heirs and assigns, to and for the only proper use and behoof of the said , his heirs and assigns, forever, and the said {here insert the names of the grantor and his wife), lor themselves, their heirs, executors, and adminis- trators, do by these presents covenant, grant, and agree to and with the said , his heirs and assigns, that they, the said , and their heirs, all and singular, the hereditaments and premises hereinbe- fore described and granted or mentioned, or intended so to be, with the appurtenances, unto the said , his heirs and assigns, against them, the said , their heirs, and against all and every other person or persons whomsoever, lawfully claiming or to claim the same or any part thereof, through, by, from, or under them, shall and will by these presents warrant and forever defend. In Witness Whereof, The said have hereunto set their hands and seals. Dated the day and year first above written. (Signatures^ (Seals.) Sealed and Delivered in the Presence of $ Received, the day of the date of this indenture, of the above named > full satisfaction for the consideration money. (Signattere.) (Witness at signing) )■ mentioned. (138.) Brief Quitclaim Deed in iise in Indiana. This Indenture Witnesseth, That I (na7ne and occupation of the grantor) of county, in the State of release and quitclaim to (name and occtipation of the grantee), of county, in the State Of for the sum of dollars, the following real estate in county, in the State of Indiana, to -wit : (here describe the land or premises granted, carefully, as directed in Form I07). In Witness Whereof, The said ha hereunto set hand and seal , this day of l8 Executed in the Presence of State of Indiana, (Signatures^ (Seals.) ■ ss. County. Before me, , a in and for said county, this day of 18 , acknowledged the execution of the annexed deed. Witness my hand and seal. (Signature^ (Seal!) FORMS OF DEEDS. 503 (139.) Brief Quitclaim Deed in use in Nebraska. Know all Men by these Presents, That I {or we) (jiajne, residence, and occupation of grantor or grantors), in consideration of dollars, in hand paid, do hereby grant, sell, remise, release, and forever quitclaim, unto {name, residence, and occupation of the grantee or grant- ees), the following described real estate, situate in the county of and State of {Jiere describe the land or -premises granted, substantially as directed in Form 107). Together with all the tenements, hereditaments, and appurtenances to the same belonging, and all the estate, tight, title, interest, dower, claim, or demand whatsoever, of the said of, in, and to the same, or any part thereof. To Have and to Hold the above-described premises, with the appurte- nances, unto the said and to 'heirs and assigns for- ever. Signed this day of A. D. eighteen hundred and (Signatures.) [Seals.) In Presence of Css. The State of Nebraska, County. On this day of A.D. eighteen hundred and , before me, a Notary Public, in and for said county, person- ally came the above-named who personally known to me to be the identical person whose name affixed to the above deed as grantor , and acknowledged the instrument to be voluntary act and deed. Witness my hand and notarial seal the date aforesaid. (Signature) Notary Public. (140.) Quitclaim Deed in use in Delaware. Know all Men by these Presents, That I (name, resi- dence, and occupation of grantor), for and in consideration of the sum of to me in hand paid, or secured to be paid by (name, residence, and occupation of grantee), the receipt whereof is hereby acknowledged, have remised, released, and quitclaimed, and by these pres- ents do remise, release, and quitclaim unto the .said and to his heirs and 'assigns, forever, all that lot, piece, or parcel of land, (here describe the land or premises quitclaimed, as directed in Form 107). ■ Together with all and singular the hereditaments and appurtenances 504 DEEDS CONVEYING LAND. thereto belonging or in anywise appertaining, and the reversions, remainders, rents, issues, and profits thereof ; and all the estate, right, title, interest, claim, or demand whatsoever of me the said either in law or equity, of, in, and to the above or aforesaid bargained premises. To Have and to Hold the same to the said and to his heirs and assigns forever. In Witness Whereof, I have hereunto set my hand and seal the day of in the year of our Lord eighteen hundred and {Signature.) {Seal.) Signed, Sealed, and Delivered in the presence of (141.) Quitclaim Deed in use in Alabama. Be it Known, That {name and occupation of the grantor), of the county of State of for and in consideration of the sum of dollars, lawful money of the United States of America, to in hand paid, by {name, residence, and occupation of the grantee^ at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, ha remised, released, and forever quit- claimed, and by these presents do remise, release, and forever quitclaim unto the said (the grantee), in full and actual possession now being and to heirs and assigns forever, all and singular the estate, right, title, interest, use, trust, property, claim, and demand whatsoever, at law as well as in equity, in possession as well as in expectancy of, in, to, or out of all and singular the following described premises. That is to say, {here describe with sufficient care the land or premises granted, as de- scribed in Form 107). To Have and to Hold the said released premises unto the said {the grantee) heirs and assigns, to own proper use, benefit, and behoof for ever, so that neither the said {fhe grantor), heirs or assigns, nor any other person or persons in trust for or in name or names, or in the name, right, or stead of any of them, shall or will, can or may, by any ways or means whatever, hereafter have, claim, challenge, or demand any right, title, interest, or estate, of, in, to, or outof the said premises above described and hereby released, but that the said heirs and assigns, each and every of them, from all estate, right, title, interest, property, claim, and demand whatsoever of, in, to, or out of the said premi- ses, or any part thereof, are, is, and shall be, by these presents, forever excluded and debarred. In Witness Whereof, The said ha hereunto set hand and seal this day of in the year of our Lord one thousand eight hundred and {Signature.) {Seal.) Sealed, Signed, and Delivered in the Presence of FORMS OF DEEDS. 505 State of Alabama, ^ )■ ss. County. ) I, hereby certify that whose name signed to the foregoing conveyance, and who known to me, acknowl- edged before me, on this day, that being informed of the contents of the con- veyance, he executed the same voluntarily on the day the same bears date Given under my hand and seal, this day of A.D. 18. ' {Signature^ (142.) "Warranty Deed in use in New York. This Indenture, Made the day of in the year one thousand eight hundred and between {name, residence, and occupation of the grantor) of the first part, and {name, residence, and occupation of the grantee) of the second part, witness- eth, that the said part of the first part, for and in consideration of the sum of lawful money of the United States, to in hand paid by the said part of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the said part of the second part, heirs, executors, and administrators, forever released and discharged from the same, by these presents, ha granted, bargained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents do grant, bargain, sell, aliene, remise, release, convey, and confirm, unto the said part of the second part, and to heirs and assigns forever, all {here describe the premises granted as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said part of the first part, of, in, and to the same, and every part and parcel thereof, with the appurtenances. To Have and to Hold the above granted, bargained, and described premises, with the appurtenances, unto the said part of the second part heirs and assigns, to their own proper use, benefit, and behoof forever. And the said for heirs, executors, and administrators, do covenant, grant, and agree to and with the said part of the second part, heirs and assigns, that the said at the time of the sealing and delivery of these presents, lawfully seized in of a good, absolute, and indefeasible estate of inheritance in fee-simple of and in all and singular the above granted and described premises, with the appurtenances and ha good right, full power, and lawful authority to 506 DEEDS CONVEYING LAND. I grant, bargain, sell, and convey the same in manner aforesaid: And that the said part of the second part, heirs and assigns, shall and may at all times hereafter, peaceably and quietly have, hold, use, occupy, possess, and enjoy tlie above granted premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, molestation, eviction, or disturbance of the said part of the first part, heirs or assigns, or of any other person or persons lawfully claiming or to claim the same : And that the same now are free, clear, discharged, and unencumbered, of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and encumbrances of what nature or kind soever. And also, that the said part of the first part, and heirs, and all and every person or persons whomsoever lawfully or equitably deriving any estate, right, title, or interest, of, in, or to the hereinbefore granted premises, by, from, under, or in trust for them, shall and will, at any time or times hereafter, upon the reasonable request, and at the proper costs and charges in the law, of the said part of the second part, heirs and assigns, make, do, and execute, or cause to be made, done, and executed, all and every such further and other lawful and reason- able acts, conveyances, and assurances in the law, for the better and more effectually vesting and confirming the premises hereby granted or so intended to be, in and to the said part of the second part, heirs and assigns forever, as by the said part of the second part, heirs or assigns, or their counsel learned in the law, shall be reasonably advised or required : And the said heirs, the above described and hereby granted and released premises, and every part and parcel thereof, with the appurtenances, unto the said part of the second part, heirs and assigns, against the said part of the first part, and heirs, and against all and every person and persons whomso- ever, lawfully claiming or to claim the same, shall and will warrant and by these presents forever defend. In Witness "Whereof, the said part of the first part hereunto set hand and seal the day and year first above written. (And (name of the wife of grantor) signs and seals this deed in token of her relinquishment and release to the party of the second part of all h'er right of dower in the premises hereby granted.) (Signature of grantor^ [Seal.) {Signature of grantor^ s wife) {Seal.) Sealed and Delivered in the Presence of State of ) OF >- SS. County of ) On the day of in the year one thousand eight hundred and before me personally came to be the individual described in, and who executed the foregoing instru- ment, and acknowledged that he executed the same. {Signature.) FORMS OF DEEDS. S07 (143.) Bond for a Deed. Know all Men by these Presents, That I, {name of the obligor) of the County of and State of am held and firmly bound to [name of the obligee) of the County of and State of in the sum of dollars, to be paid to said {naine of obligee) or his executors, administrators, or assigns, to the payment whereof I bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal and dated the day of A.D. 18 The Condition of this obligation is that if I tlie said {name of the obligor) upon payment of dollars, and interest thereon, as agreed and promised by said {name of the obligee) agjeeably to his promissory note, dated 18 , and made payable as follows, to wit {liere set forth the note. If there be no note fro7n the obligee, omit this part), shall convey to said {name of the obligee) or his heirs, executors, or assigns, forever, the following described real estate, situate, lying, and being in the County of and State of to wit {Jure describe carefully the land or premises granted, as directed in Form 107), deed or deeds in common form, duly executed and acknowledged, and in the ,_ meantime shall permit said {name of the obligee) to occupy and improve said premises for his own use, then this obligation shall be void, otherwise it shall remain in full force. {Signature^ {Seal.) Signed, Sealed, and Delivered in the Presence of State of ^ >-ss. County of ) Be it Remembered, That on this day of A.D. 18 , before the undersigned, a Notary Public {or other magistrate), within and for the County of aforesaid, personally came {name of the obligor) who is personally known to me to be the same person whose name is subscribed to the foregoing instrument of writing, as the obligor therein, and acknowledged the same to be his free act and deed, for the purposes therein mentioned. In Testimony Whereof, I have hereunto set my hand and affixed my official seal at my office in the day and year first abova written. {Signature^ {Seal.) (14=4.) Contract for Sale of Land, with Penal Obligation. Articles of Agreement, Made and concluded this daj of A.D. 18 .between of the County of joS DEEDS CONVEYING LAND. and State of of the one part, and of the County of and State of of the other part, as follows : Tlie said {name of the party of the first part) for the considera- tion hereinafter mentioned, does for himself and for his heirs, covenant and agree with the said {name of the party of the second part) and his heirs and assigns, by these presents, that he, the said party of the first part, shall and will, on or before the day of A.D. l8 , at the proper costs and charges of the said party of the first ■p?LX\.{or of the second part, if that is agreed), his heirs and assigns, by good and lawful deed or deeds, well and sufficiently grant, convey, and assure unto the said party of the second part, his heirs and assigns, in fee-simple, clear of all incumbrances, all that certain tract cr parcel of land lying, being, and situate in the County of State of as follows, to vi\\.{here describe carefully the land or premises granted, as directed in Form 107). In Consideration Whereof, The said {here the name of the party of the second part), for himself and his heirs, does covenant and agree with the said party of the first part, and with his heirs and assigns, by these presents, that he, the said party cf the second part, and his heirs, or some of them, shall and will on the execution and delivery of the said deed or deeds as aforesaid, well and truly pay, or cause to be paid, unto the said party of the first part, or his heirs and assigns, the sum of dollars, in the manner following, to wit {set forth the terms and times of payment as agreed on). And upon {set forth the time agreed on) the said party of the first part shall give to the said party of the second part possession of the afore- said premises. And for the true performance of all and every the covenants and agree- ments aforesaid, each of the said parties bindelh himself, his heirs, executors, and administrators unto the other, his executors, administrators, and assigns, in the penal sum of dollars. In "Witness "Whereof, The said parties have hereunto set their hands and seals the day and year first above written. {Signatures^ {Seals.) Signed, Sealed, and Delivered in Presence of us, {If it is intended that this contract should be recorded, as in almost all cases it should be, an acknowledgment by both parties should follow ; and the record should be like that in the next Fortn.) (145.) Po"wer of Attorney to Sell Lands. Know all Men "by these Presents, That 1, the undersigned {name of the selling party) of the town {or city) of , County of , and State of , have this day made, constituted, and appointed, and do by these presents make, constitute, and appoint {name of FORMS OF DEEDS. 509 attorney) of the town {pr city) of , in the County of , and State of , my true and lawful attorney, for me and in my name to sell and dispose of, absolutely, in fee-simple, the follow- ing described lot, tract, or parcel of land, or any part thereof, situate, lying, and being in the County of and State aforesaid, to wit ijiere describe carefully the land or premises granted, as directed in Form 107) for such price or sum of money, and to such person or persons as he shall think fit and convenient ; and also for me and in ray name, and as my act and deed, to sign, execute, acknowledge, and deliver such deed or deeds, and conveyance or conveyances, for the absolute sale and disposal thereof, or of any part thereof, with such clause or clauses, covenant or covenants, and agreement or agreements, to be therein contained, as my said attorney shall think fit and expedient ; hereby ratifying and confirming all such deeds, conveyances, bargains, and sales which shall at any time hereafter be made by said attorney touching or concerning the premises. In Testimony Whereof, I have hereunto set my hand and seal, on this day of , A.D. 18 {Signature.) {Seal.) State of '.h County of Be it Remembered, That on this day A.D. 18 , before the undersigned, a notary public {or other magistrate) within and for the County of and State of , personally came (the name of the principal), who is personally known to me to be the same person whose name is subscribed to the foregoing instrument of writing, and acknowledged the same to be his free act and deed, for the purposes therein mentioned. In Witness Whereof, I have hereunto set my hand and affixed my official seal, at my office in the day and year first above written. {Signature^ {Seal.) State of ) > SS. IN THE recorder's OFFICE. County of ) I, , Clerk of the Circuit Court, and ex-officio Recorder of said county {or whoever else is the recording officer), do hereby certify that the within instrument of writing was, on the day of A.D. 18 , duly filed for record in this office, and is recorded in the Records of this office in Book at page In Witness Whereof^ I have hereunto set my hand and affixed the seal of said court, at this day of A. D. 18 . Recorder. ' Per Deputy, 510 DEEDS CONVEYING LAND. (146.) Trust Deed for the Benefit of a "Wife, or some other Person. This Deed, Made and entered into this day of eighteen hundred and by and between {name, resi- dence, and occupation of the grantor) party o£ the first part, and ifhe name, residence, and occupation of the trustee) party of the second part, and {name of the wife or any person, who is to have the benefit of the trttst) party of the third part, witnesseth : That the said party of the first part, in consideration of the sum of dollars, to him in hand paid by the said party of the third part, the receipt of which is hereby acknowledged, and the further sum of one dollar to him paid by the said party of the second part, the receipt of which is hereby also ac- knowledged, do, by these presents, give, grant, sell, transfer, convey, and assign unto the said party of the second part, the following described tract or parcel of land, that is to say {here describe the premises carefully, as di- rected in Form 107). To Have and to Hold the Same, With all the rights, privileges, and appurtenances thereto belonging, or in any wise appertaining unto him, the said party of the second part, his heirs and assigns forever : In trust, how- ever, to and for the sole and separate use, benefit, and behoof of wife of {or the name of the son or daiighter, or any other person, may be substituted for that of the wife) and the said party of the second part hereby covenants and agrees to and with the said the party of the third part, that he will suffer and permit her {or hi?n), without let or molestation, to have, hold, use, occupy, and enjoy the aforesaid premises, with all the rents, issues, profits, and pro- ceeds arising therefrom, whether from sale or lease, for her own sole use and benefit, separate and apart from her said husband, and wholly free from his control and interference, debts and liabilities, courtesy, and all other in- terests whatsoever ; and that he will at any and all times hereafter, at the request and direction of the said {name of the ■party of the third part) expressed in writing, signed by her {or him) or by her {or his) authority, bargain, sell, mortgage, convey, lease, rent, convey by deed of trust for any purpose, or otherwise dispose of said premises, or any part thereof, to do which full power is hereby given, and will pay over the rents, issues, profits, and proceeds thereof to the said party of the third part, and that he will, at the death of the said party of the third part, convey or dispose of the said premises, or such part thereof as may then be held by him under this deed, and all profits and proceeds thereof, in such manner, to such person or per- sons, and at such time or times, as the said party of the third part shall, by her {or his) last will and testament, or any other writing signed by her, or by her authority, direct or appoint ; and in default of such appointment, that he will convey such premises to {here state what it is intended shall be done with the property at the death of the party of the third part if he or she die FORMS OF DEEDS. 5 1 j intestate). And the said party of the third part-shall have power at any time hereafter, whenever she {or he) shall from any caus e deem it necessary or expedient, by an instrument in writing under her {or his) hand and seal, and by her {or him) acknowledged, to nominate and appoint a trustee or trustees, in the place and stead of the party of the second part above named ; which trustee or trustees, or the survivor of them, or the heirs of such survivor, shall hold the said real estate upon the same trust as above recited ; and upon the nomination and appointment of such new trustees, the estate in trust hereby vested in said party of the second part shall thereby be fully transferred and vested in the trustee or trustees so appointed by the said party of the third part. And said party of the first part hereby covenants to warrant and defend the title to the said real estate against the lawful claims of all persons whomsoever, to the said parties of the second and third parts, their heirs and assigns. And the said party of the second part cove- nants faithfully to perform and fulfil the trust herein created. In Testimony Whereof, The said parties have hereunto set their hands and seals the day and year first above written. ' {Signatures) {Seals.) The State of '\ > ss. County of ) Be it Eemembered, That on the day of eighteen hundred and , before me, the undersigned came. {the persons who execute the instrument) who are personally known to me to be the same persons whose names are subscribed to the foregoing instrument of writing, as parties thereto, and severally acknowledged the same to be their free act and deed for the purposes therein mentioned. {Signature) (147.) Trust Deed to Secure Payment of a Note without Releasb of Homestead, or Dower. « This Deed, Made and entered into this day of eighteen hundred and by and between {natne and occupation of the grantor who is the debtor) of the County of State of ; party of the first part, and {name and occupation of the trustee) of the County of State of party of the second part, and {name and occupation of the creditor for whose benefit the deed is made) of the County of State of party of the third part : Witnesseth., That the said party of the first part, in consideration of the debt and trust hereinafter mentioned and created, and of the sum of one dollar to him paid by the said party of the second part, the receipt of which 512 DEEDS CONVEYING LAND. is hereby acknowledged, does by these presents grant, bargain, and sell, convey and confirm unto the Said party of the second part, the following described real estate, situate, lying and being in the County of and State of , to wit {here describe carefully the land or premises granted, as described in Form 107.) To Have and to Hold The same, with the appurtenances, to the party of the second part, and to his successor or successors in this trust, and to him and his heirs, and his and their grantees and assigns forever. In Trust, However, for the following purposes : Whereas the said party of the first part has this day made, executed, and delivered to the said party of the third part, his promissory note , of even date herewith, by which he promises to pay to the said {name of the creditor) or order, for value received, Yfftr dollars, in {the days or months when the note is payable). Now Therefore, If the said party of the first part, or any one for him,, shall well and truly pay off and discharge the debt and interest expressed in the said note and every part thereof, when the same becomes due and pay- able according to the true tenor, date, and effect of said note , then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of the said party of the first part ; but, should the said first party fail or refuse to pay the said debt, or the said interest, or any part thereof, when the same or any part thereof shall become due and payable, according to the true tenor, date, and effect of said note , then the whole shall be- come due and payable, and this deed shall remain in force ; and the said party of the second part, or in case of his absence, death, refusal to act, or disability in any wise, the (then) acting sheriff of County, , at the request of the legal holder of the said note , may proceed to sell the property hereinbefore described, or any part thereof, at public vendue, to the highest bidder, at in the of County, , for cash, first giving days' pubhc notice of the time, terms, and place of sale, and of the property to be sold, by advertisement in some newspaper printed and published in the of , and upon such sale shall execute and deliver a deed in fee-simple of the property sold to the pur- chaser or purchasers thereof, and receive the proceeds of said sale ; and any statement of facts or recital by the said trustee, in relation to the non-pay- ment of the money secured to be paid, the advertisement, sale, receipt of the money, and the execution of the deed to the purchaser, shall be received as primi facie evidence of such fact; and such trustee sliall, out of the pro- ceeds of said sale, pay, first, the cost and expenses of executing this trust, including legal compensation to the trustee for his services, and next shall apply (he proceeds remaining over to the piyment of said debt and interest, or so much thereof as remains unp lid, and tlie remainder, if any, shall be paid to the said party of the first part, or his legal representatives. And the said party of the second part covenants faithfully to perform and fulfil the FORMS OF DEEDS. 5 1, trust herein created, not being liable or responsible for any mischance occa- sioned by others. In "Witness Whereof, The said parties have hereunto set their hands and seals the day and year first above written. {Signature of party of the first part^ {Seal) {Signature of party of the second part) {Seal) {Signature of party of the third part) {Seal) Signed, Sealed, and Delivered in Presence of us State of >-ss. County of Be it Remembered, That on this day of A. D. 18 , before the undersigned, a within and for the County of and State of , personally came {names of all the parties execziting the deed) who are personally known to me to be the same persons whose names are subscribed to the foregoing instrument of writing, as parties thereto, and acknowledged that they executed the same for the uses and purposes therein mentioned. In Testimony Whereof, I have hereto set my hand and affixed my ofR- cial seal at my office in the day and year first above written. {Signature) {Seal) (148.) Deed of Trust to Secure a Debt; Fuller Form, and with Release of Dower. This Deed, Made and entered into this day of eighteen hundred and , by and between {name and occupation, of the debtor who is grantor) and {name of the wife of the grantor) of {residence) parties of the first part, and {name of the grantees who are the trustees) of {residence) parties of the second part, and {name, residence, and occupation of the creditor for whose benefit the trust is created) of party of the third part, wit- nesseth, that the said parties of the first part, in consideration of the debt and trust hereinafter mentioned and created, and of the sum of one dollar to them paid by the said parties of the second part, the receipt of which is hereby acknowledged, do by these presents grant, bargain, and sell, convey and confirm, unto the said parties of the second part, the following described real estate, to wit : (here describe carefully the land or premises granted, by metes and bounds, as directed in Form. 107.) To Have and to Hold the same, with the appurtenances, to the said par- ties of the second part, and to the survivor of them, and to their successor hereinafter designated, and to the assigns of the said parties of the second part, or of said survivor, or of said successor and his heirs forever. In Trust, however, for the following purpose : Whereas the said 33 514 DEEDS CONVEYING LAND. {name of the grantor) {here describe the debt, and if a promissory note is given, describe that, or set forth a copy of it) and lias also agreed and covenanted to and with the said party of the third part, and his indorsees or assignees, to cause all taxes and assessments, general and special, to be paid within the times required by law, whenever imposed upon said property, and has also further covenanted and agreed to and with said party of the third part, his indorsees or assignees, that he will keep the improvements upon said property constantly insured in some good and responsible insurance office or offices, to be approved by said party of the third part, his indorsees or assignees, in a sum not less than dollars, until said notes are {or note is) fully paid, and will assign the policy or policies of insur- ance to said party of the third part, his indorsees or assignees, with full power to demand, receive, and collect any and all moneys accruing under said insurance, and the same to apply to the payment of said notes and the Interest that may accrue thereon, unless otherwise paid, when the same become due, and has also covenanted and agreed to and with said party of the third part, his indorsees or assignees, that there shall not, at any time while said notes remain unpaid, be any mechanics' hens filed or taken upon the real estate herein described, or upon the buildings which now are, or may hereafter be, erected upon said real estate, and that should said party of the first part fail or neglect to pay said taxes, when the same are by law due and payable, or fail or neglect to effect insurance and assign the policy or policies as above provided, or fail or neglect to keep said real estate free from mechanics' liens, the said party of the third part, his indorsees or assignees, may, at his option, consider the notes above mentioned and described, as having each and all become due and payable, though not then due by the tenor and effect thereof, and may require the said parties of the second part, or the survivor of them, or their successor in trust, to sell the property above described as hereinafter provided, or may pay said taxes, or the premium for such insurance, or the amount of said mechanics' liens, and the amount or amounts so paid, together with interest thereon, at the rate of (ten) per cent, per annum, shall be taken and considered as a part of the amount secured hereby, and to be paid and refunded out of the proceeds of sale, should such sale be made, as hereinafter provided. Now, if the said notes be well and truly paid, as the same severally become due and payable, according to the tenor and effect of said notes, and each of them, and if the said covenants and agreements in regard to taxes, insurance, and mechanics' liens be faithfully kept and performed, and all moneys paid by said third party, his indorsees or assignees, on account of said taxes, insurance, and mechanics' liens, are refunded, with the interest thereon, as above provided, then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of the said parties of the first part ; but should default be made in the payment of the said notes, or either of them, or any part of either of them, or of the interest that may accrue thereon, or any part thereof, a$ the same severally become due and FORMS OF DEEDS. jlj payable, or if the said parties of tlie first part fail or neglect to pay said taxes, when due and payable, or to insure the buildings on said property, or to Iteep the same free from mechanics' liens, as provided in the foregoing covenants and agreements, or to refund to said party of the third part, his indorsees or assignees, the amount paid by him or them for said taxes, insur- ance, or mechanics' liens, with interest thereon, as above provided, then this deed shall remain in force, and the said parties of the second part, or either of them, or the survivor of them, or in the event of the death of both of them, or absence from this State, or their refusal to act, or other disqualification for the performance of the duties of this trust, then, at the request of the holder of said notes, the sheriff of the county of for the time being (who shall thereupon become the successor of said trustees, and of the sur- vivor of them, to the title of said .property, and the same become vested in him, in trust for the purposes and objects of these presents, with all the powers, duties, and obligations thereof), may proceed to sell said described property, or any part thereof, at public vendue, to the highest bidder, for cash, at the {state the place of sale) first giving twenty days' public notice of the time, terms, and place of said sale, and the property to be sold, by advertisement in some newspaper printed in the English language, and published in the county of and upon such sale, the said parties of the second part, or either of them, or the survivor of them, or their suc- cessor in trust, the sheriff of said county, as the case may be, shall execute and deliver a deed or deeds, in fee-simple, of the property sold, to the pur- chaser or purchasers thereof (a recital wherein of the request of the holder of said notes that they should proceed to sell, of the publication of said notice, and in case of sale by the sheriff of said county, of the happening of any or either of the events making him successor in this trust, shall be received in all courts of law or equity, and to all intents and purposes, as full and sufficient proof thereof), and shall receive the proceeds of said sale, out of which shall be paid, first, the cost and expenses of executing this trust, including compensation to said trustee, or said sheriff, for their or his services, next the amount paid by said party of the third part, or his indorsees or assignees for taxes, insurance, or mechanics' liens, with (ten) per cent, per annum interest thereon, from the date-of the payment thereof, and next, the amount remaining unpaid upon the principal note above described, together with all the interest notes then due, and so much of the interest note, next falling due, as may be necessary to satisfy the interest on said principal note at the rate of per cent, per annum from the date when the preceding interest note became due, up to the day of sale, it being distinctly understood and agreed between the parties hereto, that the failure to pay any one of said notes, principal or interest, when due and payable, shall cause the principal note to become immediately due and payable, though not then due by the terms, tenor, or effect thereof, and the remainder, if any, shall be paid to the said parties of the first part or their legal representatives. And the said parties of the second.part covenant faithfully to perform and fulfil the trust herein created. Sl6 DEEDS CONVEYING LAND. In "Witness Whereof, The said parties have hereunto set their hands and seals the day and year first above written. {Signature of grantor^ {Seal.) {Signaltire of grantor's wife.) {Seal.) {Signature of trustee.) {Seal.) {Signature of other trustee^ {Seal.) {Signature of creditor.) {Seal.) Signed, Sealed, and Delivered in Presence of State oe ) vss. County of ) Be it Remembered, That on this day of eighteen hundred and before me, the undersigned, came {name of the parties who execute the deed) who are personally known to me to be the same persons whose names are subscribed to the foregoing instrument of writing, as parties thereto, and acknowledged the same to be their act and deed for the purposes therein mentioned. And the said having been by me first made acquainted with the contents of said instrument, on an examination separate and apart from her husband, acknowledged that she executed the same freely and without compulsion or undue influence of her said husband. In Testimony "Whereof, I have hereunto set my hand and seal of office the day and year first above written. (149.) Trust Deed to Seciire a Note, Shorter Form, but with "Warranty, and Release of Homestead and Do"wer. This Indenture "Witnesseth, That {name, residence, and occupation of grantor) and {name of the wife of grantor) wMe of the grantor herein, in consideration of the indebtedness hereinafter mentioned, and one dollar ($i) to them paid by {name, residence, and occupation of the trustee) grantee , the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, remise, release, and convey unto the said grantee , the follow- ing described lot , piece , or parcel of land, situate in the county of and State of to wit : {here describe carefully the land or premises granted, as directed in Form 107). To Have and to Hold the same, with all the privileges thereunto or in anywise appertaining, and all the estate, right, title, interest, claim, or demand in and to the same, either now or which may be hereafter acquired, unto the said grantee, his heirs and assigns. In trust, nevertheless, for the following purposes : "Whereas, The said {na7ne of the grantor) gr2.TiXor\\&r!t\n,\i, ]vL%'i\y indebted upon a certain promissory note, bearing even date herewith, pay- able to the order of {here describe the note) FORMS OF DEEDS. 517 Now, in case of default in the payment of said note, or any part thereof, or the interest accruing thereon, according to the tenor and effect thereof, or in the payment of any taxes or assessments, ordinary or special, which may be levied or assessed against said premises during the continuance hereof, on the application of the legal holders of the said note, the said grantee (full power being hereby given), or his legal representatives, after having advertised such sale days in a newspaper published in or by posting up written or printed notices in four (4) public places in the ' county where said premises are situate (personal notice being hereby expressly waived), shall sell the said premises, or any part thereof, and all the right and equity of redemption of the said grantor, or his heirs, executors, administrators, or assigns therein, at public vendue, to the highest bidder for cash, at at the time appointed in the said advertisement, or may adjourn the sale from time to time at discretion and as the attorney of said grantor, for such purpose hereby constituted irre- vocable, or in the name of the said grantee or his legal representatives, shall execute and deliver to the purcl^aser or purchasers thereof, deeds for the conveyance in fee of the premises sold, and shall apply the proceeds of sale (ist) to the payment of all advances made by the said party of the second part for taxes and assessments ; apd expenses for advertising, selling, and con- veying as aforesaid, including attorney's fees, and (2d) the arnount due on said note, (3d) rendering the overplus, if any there be, to the said grantor or legal representatives, at the office of the said grantee in and it shall not be the duty of the purchaser to see to the application of the purchase money. And the said {iiaines of the grantor and of his wife) parties of the first part, hereby expressly waive, release, and relinquish unto th£ said party of the second part, the said grantee, his heirs, executors, administrators, and assigns, all right, title, claim, interest, and benefit whatever, in and to the above-described premises, and each and every part thereof, which is given by or results from all laws of this State pertaining to the exemption of home- steads : Provided, that the said grantor and his heirs and assigns may hold and enjoy said premises, and the rents, issues, and profits thereof, until default shall be made as aforesaid, and that when the said note and all expenses accruing hereby s\all be fully paid, the said grantee or his legal representatives, shall reconvey all the estate acquired hereby in the said premises, or any part thereof, then remaining unsold, to (and at the cost of) the said grantor, or his heirs or assigns. And the said grantor covenants with the said grantee and with his legal representatives and assigns that he is seized in fee of the said premises, and has good right to convey the same in form aforesaid, that they are free from all liens or incumbrances of whatever name or nature, and that *he will warrant and defend the same against all claims whatsoever, and will pay all taxes or assessments If vied or assessed on the said premises, or any part thereof, during the continuance hereof, and pay the same ten days before the day of sale tliereof. 5 1 8 DEEDS CONVE YING LAND. Witness the hands and seals of the said {names of the grantor and his wife) this day of A.D. 18 . {Signature of grantor^ {Seal.) {Signature of wife of grantor.) {Seal.) In Presence of State of .\ •ss. County. On the day of eighteen hundred and before me of the County of in the State of appeared {name of the grantor) personally known to me to be the real person whose name is subscribed to the foregoing deed of trust, as having executed the same, and then acknowledged the execution thereof as his free act and deed for the uses and purposes herein mentioned. And the said {name of the wife of grantor) (who is personally known to me to be the same person who subscribed the said instrument of writing), having had the contents of the said instrument made known and fully explained to her, and she also by me being fully informed of her rights under the Homestead Laws of the State, and being by me examined, sepa- rate and apart from her said husband, did acknowledge said instrument to be her free act and deed ; that she executed the same, and relinquished her dower in the lands and tenements therein mentioned, and also all her rights and advantages under and by virtue of all laws of this State relating to the exemption of homesteads, voluntarily and freely, and without the compul- sion of her husband, and that she does not wish to retract. Given under my hand and official seal, this day of A.D. 18 T {Signature^ \Seal^ (160.) Deed from Trustees. This Deed, Made and entered into this day of A.D. eighteen hundred and by and between {»ames of trustees) party of the first part, and {name, residence, and occupation of grantei) party of the second part, witnesseth, that whereas {name of tJie party who conveyed the estate to the trustees) by deed dated the day of 18 , recorded in the Recorder's office of County, State of in book conveyed the property hereinafter described in trust to said {name of trustees) to secure the payment of certain promissory notes in said deed described, and whereas ijiere describe the non-paymetit or other defatdt which has authorized the sale by the trustees) and the party herein of the first part, at the request of the legal holder of said promissory notes acting in pursuance of the provisions of said deed of trust, and having first given .days' public notice of the time, terms, and place of sale, and of the property to be sold, by an advertise- FORMS OF DEEDS. 519 ment iaserted on the day of A.D. in the a daily newspaper printed in the city of and continued to the day of sale (as will appear by the copy of said adver- tisement and affidavit of publication thereof hereto annexed as a part of tills deed) did proceed to, sell the property described in said deed at public YenduB to the highest bidder for cash at in the city of on the day of ■ 18 , between the hours of ten o'clock ip the morning and five o'clock, in the afternoon of said day, when and where the same was struck off to (fhe name of the purchaser who is the grantee) as the highest and last bidder therefor, at the price and sum of dollars, full payment whereof is hereby acknowledged ; now, said party of the first part, by virtue of the proceedings aforesaid, and in consideration of the sum of dollars to him in hand paid by said party of the second part, does by these presents bargain, sell, and convey to said {name of the grantee) all the right, title, and interest (which by virtue of said trust deed and the pro- ceedings aforesaid he may or can bargain, convey, or sell) in and to the property described in said deed of trust, to wit {here describe the land or ■pre7nises granted in the same way in which they are described in the deed of trust under which the trustees act) To Have and to Hold the said described premises unto said {name of the purchaser) and unto his heirs and assigns forever. In Witness Whereof, the said party of the first part has hereto set his hand and seal the diy and year first herein above written. {Signatures) {Seals) In Presence of State of , ) County. ) Be it B.emem'bered, that on this day of A.D. 18 , before me, the undersigned, personally came who are to me personally known to be the same persons whose names are subscribed to the foregoing instrument of writing as parties thereto, and they acknowl- edged the same to be their act and deed for the purposes therein mentioned. {Signature) (151.) Deed of Master in Chancery. This Indenture, Made this day of A.D. 18 , between \name of grantor) Master in Chancery, in and for the County of and State of , of the first part, and {name of grantee) of the second part, witnesseth : That whereas, at the term of the court of the said County of and State of , in the year of our Lord A.D. 18 , in a certain suit and proceedings in chancery, pending in said court, wherein were complainants, 520 DEEDS CONVEYING LAND. and were defendants, to obtain a decree for the sale of the property hereinafter described, and for other relief, it was ordered, adjudged, and decreed by the court, that {here set forth the decree under which the sale IS made) and the Master in Chancery, in and for the County of and State of was appointed to execute the said decree, and to make, execute, and deliver to the complainants a deed to the said premises as aforesaid, conveying to (the name, residejice, and occupation of the grantees') all the interest and title of the defendant to said premises. Now, therefore, Kno-vsr all Men by this Deed, That I, Master in Chancery as aforesaid, in consideration of one dollar, to me paid by the said party of the second part, the receipt whereof 1 acknowledge before the execution hereof, and by virtue of the decree aforesaid, have granted, bargained, and sold, and do hereby grant, bargain, and sell unto the said party of the second part, his heirs and assigns forever, the follow- ing-described real estate, lying in the County of and State of to wit (here describe carefully the land or premises granted, as directed in Eorm 107). To Have and to Hold the said premises, with all the appurtenances thereto belonging, unto the said party of the second part, his heirs and assigns forever. In Testimony Whereof, The said Master in Chancery of County, in the State of , has hereto set his hand and seal the day and year first above written. In Presence of State of iSignature.) (Seal.) ■ ss. County. ' I, clerk of the county court in and for the County of and State of , do hereby certify, that the above-named whose name appears signed to the foregoing deed is personally known to me to be the same person described therein, and acknowledged to me that, as master in chancery aforesaid, he executed the said deed freely for the uses and purposes therein mentioned. Given under my hand and official seal at this day of A.D. 18 . (Signature.) Clerk. (Seal.) (152.) Sheriff's Deed on Execution, in use in the "Western States. Whereas, (the name of the plaintiff in the suit in which the execu- tion issued) did at the term, A.D. eighteen hundred and of the court for the County of in the State of , recover a judgment against {name of the defendant FORM'S OF DEEDS. 52 1 in that suit) for the sum of and costs of suit, upon which judgment and execution was issued, dated on the day of A. D. eighteen hundred and directed to the sheriff of County, to execute, and by virtue of said execution {name of the sheriff) of then sheriff of said county, levied upon the lands hereinafter described, and the same were struck off and sold to {name of the purchaser at the sheriff's sale) he being the highest and best bidder therefor, and the time and place of the sale thereof having been duly adver- tised according to law. And the said {name of the purchaser) having duly assigned his certificate of purchase to {name of the grantee) Now therefore. Know all by this Deed, That I, {name of the sheriff) sheriff of said County of in consideration of the premises, have granted, bargained, and sold, and do hereby convey to the said {tiame of the grantee) his heirs and assigns, the following described tract of land, to wit {here describe carefully the land or premises granted, as directed in Form 107). To Have and to Hold the said described premises, with all the appurte- nances thereto belonging, to the said {name of the grantee) and his heirs and assigns forever. Witness my hand and seal this day of in the year of our Lord one thousand eight hundred and {Signature.) {Seal.) Sheriff of County. In Presence of State of \ ,-ss. County of I, clerk of the court of County, do certify that sheriff of County, personally known to me to be the real person whose name is sub- scribed to the within annexed deed, this day acknowledged before me that he executed the said deed, as such sheriff, voluntarily and freely, for the use and purposes therein set forth. • Given under my hand, and the seal of said court, this day of eighteen hundred and {Signature) Clerk. {Seal.) (163.) Sheriff's Deed, in use in New England. Know all Men by these Presents, That I {name of. the deputy sheriff selling of in the County of and State of , and a deputy sheriff under {name of the sheriff), Esq., sheriff of said county, having, on the day 522 DEEDS CONVEYING LAND. of in the year of our Lord one thousand eight hundred and , by virtue of a writ of execution, which was issued upon a judgment, recovered at the term of the court holden at within and for the Co inty of on the in the year of our Lord eighteen liundred and , by {name of the plaintiff 171 the suit) of in the County of against {na7ne of the defendant in the suit) of in the County of for the sum of dollars and cents damage and costs of suit taxed at dollars and cents, seized and taken all the right in equity which the said had on the day of in the year of our Lord eighteen hundred and being the time when the same was attached on mesne process of redeeming the following-de- scribed mortgaged real estate, to wit : {here describe carefully the land or prei7iises granted, as directed in Eonn 107) and having on the day of last, being thirty days at least before the time of the sale hereinafter mentioned, given notice in writing to the said {name of the defendant) of the time and place of sale, and having posted up nolificalions thereof in one public place in said town of and in one public place in each of the towns of and being two towns adjoining said town of and also having caused an advertisement of the time and place of sale, to be published three weeks successively, before the day of sale, in the public newspaper called the printed at in said county of on the day of in the year of our Lord eighteen hundred and made sale of said right in equity of redemp- tion at public auction, to {fiame of the purchaser) of in ; he being the highest bidder for the same, for the sum of dollars. Now, therefore, in consideration of said sum of dollars to me paid by the said (iiame of the purchaser) the receipt whereof I do hereby acknowledge, I have given, granted, bar- gained, and sold, and do, by these presents, give, grant, bargain, sell, and con- vey to the said {name of the purchaser) his heirs and assigns forever, all the right in equity which the said {name of the defendant) had of redeeming the aforesaid mortgaged real estate, at the time aforesaid. To have and to hold the same to the said {name of purchaser) his heirs and assigns, to his and their use forever ; subject, however, to be redeemed agreeably to the law in such case made and provided. And I, the said {name of grantor) in my said capacity of deputy sheriff, do covenant with the said {name of purchaser) as aforesaid, that, in making said sale, and in every* thing concerning the same, I have complied with, and observed the rules and requisitions of the law for making sales of rights in equity to redeem real estate. But I do not warrant or defend to the said {ttame of the pur- chaser) that the said {name of the defendant) had any right, title, or interest in said estate at the time aforesaid. FORMS OF DEEDS. eja In "Witness Whereof, I, the said in my said capacity of deputy sheriff, have hereunto set my hand and seal this day of in the year of our Lord one thousand eight hundred and (^Signature.) (Seal.) Signed, Sealed, and Delivered in Presence of ss. i8 . Then the above-named personally appeared, and acknowledged the above instrument by him signed, to be his free act and deed. Before me, Jusiice of the Peate. (154.) SheriflF's Tax Deed,, in use in the Western States. Know all Men by these Presents, That whereas, at the Term , A.D. i8 , of the Court of County, a judgment was obtained in said court, in favor of the State of against the following-described lot , piece , or parcel of land, for the sum herein specified, to wit, the sum of (here state in writing the amount of the tax); said sum being the whole amount of taxes, interest, and costs assessed upon said lot , piece, or parcel of land, for the year i8 And whereas, on the day of A.D. i8 (name of the collector of taxes) then collector of taxes of the county afore- said, by virtue of a precept or order issued out of the Court of the county aforesaid, dated the day of A.D. i8 , and directed to the said as aforesaid, did expose at public sale^ at the Court-House, in the county aforesaid, in conformity with aJl the requirements of the statutes in such case made and provided, the said lot , tract , or parcel of land above described, for the satisfaction of the judgment so rendered, as aforesaid. And whereas, at the time and place aforesaid (name of the purchaser) of the County of and State of having offered to pay the afore- said sum, amounting to the sum of dollars and cents, for the (here state what' part or portion of the land was sold) of said lot , piece, or parcel of land, as follows, to wit, the sum of dollars cents, which was the least quantity of said lot , piece, or parcel of land bid for the said lot , tract , or parcel of land was stricken off to (name of the purchaser) at that price. And whereas, the said purchaser has now made and delivered to me an affidavit of having complied with all the requirements of the statute and constitution of the State of necessary to entitle said purchaser to a deed for the premises so sold to him as aforesaid; and whereas the said (name of the purchaser) has duly assigned the cer- tificate of purchase of the land above describedi unto (the name of the grantee): Now, therefore, I, sheriff of the county of for aad in consideration of the said above-named sum, 524 DEEDS CONVEYING LAND. amounting to the sum of dollars and cents, paid to (the collector of taxes) of said county of by the said (the name of the purchaser) 3.\. the time of the aforesaid sale, and in consideration of (the amount of costs and fees) yj^ dollars to me jjaid by said {name of grantee) and by virtue of the statute in such case made and provided, have granted, bargained, and sold, and by these presents do grant, bargain, and sell unto the said {name of the grantee) his heirs and assigns, the premises so sold as aforesaid, situated in the County of and State of to wit {here describe carefully the land or premises granted, by inetes and bounds, and contents or quantity, or boundary marks or monuments). To Have and to Hold unto him, the said {the naine of the grantee) his heirs and assigns forever, subject, however, to all the rights of redemp- tion provided by law. In Witness Whereof, I sheriff as aforesaid, by vir- tue of the authority aforesaid, have hereunto subscribed my name and affixed my seal this day of A.D. i8 . {Seal:) Sheriff of County. ss. State of County of I, in and for said County and State, do certify that sheriff of said county, who is personally known to me to be the real person who executed and subscribed his name to the fore- going deed, appeared before me this day, and acknowledged that he had executed the same as such sheriff, freely and voluntarily, for the uses and purposes therein set forth. In attestation whereof, I have hereuntoset myhand and attached the seal of our said court, at my office in in said County and State, this day of A.D. i8 {Signature) Clerk. {Seal.) (166.) Deed of Executor, in. use in the Eastern States. Know all Men by these Presents, That whereas {jiame of the executor) in the County of and State of executor of the last will of {name of the testator) late of deceased, by an order of the Court of Probate, held at within and for the County of on the day of in the year one thousand eight hundred and was licensed and empowered to sell and pass deeds to convey certain real estate of the said deceased ; and whereas, the said executor having given public notice of the intended sale, by causing notifications FORMS OF DEEDS. 525 thereof to be published once a week, for three successive weeks prior to the time of sale, in the newspaper called the printed at and having first taken the oath and given the bond by law in such cases required, did on the day of in the year one thousand eight hundred and pursuant to the order and notice aforesaid, sell by public auction the real estate of the said deceased hereinafter described, to (name, residence, and occupation of the purchaser) for the sum of dollars j^j he being the highest bidder therefor. Now, therefore, Know ye, That I, the said executor as aforesaid, by virtue of the power and authority in me vested as afore- said, and in consideration of the aforesaid sum of dollars yjj paid by the said {name 0/ the purchaser) ^hs receipt whereof is hereby acknowledged, do, by these presents, give, grant, sell, and convey unto the said [here describe carefully the land or premises granted, by metes and bojinds, and contents or quantity, or boundary marks or monuments, and refer to the deed of the land to the testator, under which he held it). To Have and to Hold the afore-granted premises, with all the privileges and appurtenances to the same belonging, to him the said (name of pur- chaser) and his heirs and assigns, to his and their use and behoof forever. And I the said {name of executor) for myself and ray heirs, executors, and administrators, do hereby covenant with the said {name of purchaser) and his heirs and assigns, that in pursuance of the order aforesaid, I gave public notice of the said intended sale, in manner aforesaid, and that I took the oath and gave the bond by law required, previous to fixing on the time and place of sale. In Witness Whereof, I, the said executor as aforesaid, have hereunto set my hand and seal this day of in the year of our Lord one thousand eight hundred and {Signature^ {Seal.) Signed, Sealed, and Delivered in presence of ss. A.D. 18 . Then personally appeared the above-named executor and acknowledged the foregoing instru- ment to be his free act and deed. Before me, Justice of the Peace. (156.) Deed of Executor, in use in the Middle States. This Indenture, Made the day of in the year one thousand eight hundred and between {name of executor) executor of the last will of {nai7ie and residence of testator) of the first part, and {name, residence, and occupation of the purchaser, who is the grantee) of the second part, witnesseth, that 526 DEEDS CONVEYING LAND. the said party of the first part, by virtue of the power and authority to him given in and by the said last will and testament, and for and in consideration of the sum of lawful money of the United States of America, to him in hand paid at or before the ensealing and delivery of these presents, by the said party of the second part, the receipt whereof is hereby acknowledged, and the said party of the second part, his heirs, executors, and administrators, forever released and discharged from the same by these presents, have granted, bargained, sold, aliened, released, conveyed, and confirmed, and by these presents do grant, bargain, sell, aliene, release, convey, and confirm unto the said party of the second part, and his heirs and assigns forever, all (here describe carefully the land or j>re>mses gra/tied, by metes and bounds, and contents er quality, or boundary marks or monuments, and refer to the deed of the land to the testator, under •which he held it.) Together with all and singular the edifices, buildings, rights, members, privileges, advantages, hereditaments, and appurtenances to the same belong- ing, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also all the estate, right, title, interest, claim, and demand whatsoever, both in law and equity, •which the said testator had in his lifetime, and at the time of his decease, and which the said party of tlie first part hath, by virtue of the said last will and testament, or otherwise, of, in, and to the same, and every part and parcel thereof, with the appurtenances : To have and to hold the said premises above mentioned and described, and hereby granted and conveyed, or intended so to be, with the appurtenances, unto the said party of the second part, and his heirs and assigns, to his and their only proper use, benefit, and behoof forever. And the said party of the first part, for himself and for his heirs, executors, and administrators, does for himself and for his heirs, executors, and administrators, covenant, grant, promise, and agree to and with the said party of the second part, and his heirs and assigns, tbat the said party of the second part, his .heirs and assigns, shall and lawfully may from time to time, and at all times forever hereafter, peaceably and quietly have, hold, use, octupy, possess, and enjoy all and singular the said hereditaments and premises liereby granted and conveyed, or intended so to be, with their and every of their appurtenances, and receive and take the rents, issues, and profits thereof, to and for his and their own use and benefit, without any lawful let, suit, hindrance, molestation, interruption, or denial whatsoever, of, from, or by them the said party of the first part, his heirs or assigns ; or of, from, or by any other person or persons whomsoever lawfully claiming, or who shall or may lawfully claim hereafter, by, from, or under him, or by, from, or under his riglit, title, interest, or estate. And that free and clear, and freely and clearly discharged, acquitted, and exonerated, or otherwise well and sufficiently saved, defended, kept harmless, and indemnified by them, the said party of the first part, his heirs and assigns, of, from, and FORMS OF DEEDS. 527 against all and all manner of former and other gifts, grants, bargains, sales, mortgages, judgments, and all other charges and incumbrances whatsoever, had, made, committed, executed, or done by him the said party of the first part, or by, through, or with his acts, deeds, means, consent, procurement, or privity. In. Witness Whereof, the parties to these presents have hereunto inter- changeably set their hands and seals the day and y&ax first above written. {Signature of party of file first part.) (Seal) {Signature of party of the second part.) (Stal.) Sealed and Delivered i?i the Presence of State of , ■) >-ss. County. ) This day personally appeared before the \xaA.^'c%\g-at&,ijftime and office-of the magistrate) within and for the county and State aforesaid, {name of the executor) executor of the estate of {jzame of deceased) deceased, who is per- sonally known to me to be the person whose name a-s such is subscribed to the foregoing deed, as having executed the same, and acknowledged that he had as such executor subscribed to the foregoing deed, as having e^cecuted the same and acknowledged that he had as such executor executed th« same for the uses and purposes therein expressed. In "Witness Whereof, I have hereunto set my hand and seal, at my office in said county, this day of ' A.D. 18 {Signature.) {Seal.) (ISS.) Deed of Administrator of Intestate. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and ' between (name and residence of admimstrator) administrator of the goods and estate of (name of intestate) of . who died intestate, party of the first part, and (name, residence, and occupation of the grantee) of the County of and State of party of the second part : Whereas, at the term, A.D. 18 of the court, within and for the County of and State of in a certain petition or cause therein pending, in which the said (natne of the grantor) administrator of the goods and estate of (name of the deceased) deceased, was petitioner, and (names of the defendants who are minor children of the deceased, and of the widow of deceased, and of the guardian of the minors) were defendants, the following order and decree were rendered, that is to say : 528 DEEDS CONVEYING LAND. State of :{^ ,• ss. County. In Court Term, A.D. i8 (name of the administrator) administrator of the goods and estate of {name of deceased) deceased, vs. {names of the defendants, who should be the widow and heirs of the deceased.) And now comes the petitioner by his solicitor and presents his petition herein, and it satisfactorily appearing to the court that the defendants have been duly served with summons herein by the sheriff of county, and that the defendants are non-residents of the State of and have been duly notified of this proceeding by publication as required by law, it is therefore ordered by the court, that the said defendants be called. And they, being three times solemnly called, came not, nor any one for them, but herein failed and made default ; which it ordered to beentered of record ; and it further appearing to the court that the said {names of defendants who are minors) are minors, and have a guardian, to wit, the said {name of the guardian). And afterwards the said {name of guardian) as such guardian comes and files his answer herein, neither admitting nor denying the allegations in said petition contained, but reserv- ing the right of said minor by requiring proof. And this cause having been brought on to be heard upon the petition herein taken as confessed by the answer of said guardian and the exhibits and proofs, and the testimony of {name of the witness or witnesses called in the case) witness duly sworn, who testified herein in open court, and 'it satisfactorily appearing to the court from the evidence that the said {name of the deceased) departed this life on cr about the day of A.D. i8 , leaving {name of his widow) his widow and {name of his children) his children and only heirs at law; that the petitioner herein was duly appointed administrator of the goods and estate of said {name of deceased) deceased, and that letters of administration were duly granted to him by this court, bearing date on the day of A.D. 1 8 , and the court having ascertained that said petitioner as aforesaid has made a just and true account of the condition of the estate of said deceased to this court, and that the personal estate of said deceased is not sufficient for the payment of the debts of the said {name of the deceased) deceased ; and the court having found the amount of the deficiency aforesaid to be the sum of dollars, besides interest and costs, and it further appearing to the court that the said {name of the deceased) died seized of the following described real estate, situate in the County of and State of , to wit : {here describe carefully the latid or premises granted, by metes and bou7ids, and contents or quantity, or boundary marks or momnncnts, and refer to the deed of the land to the deceased, under which he held it) and the court having ascertained that it will be necessary to sell the said real estate FORMS. OF DEEDS. 529 to pay the deficiency aforesaid, with the expenses of administration now due and to accrue ; it is therefore ordered, adjudged, and decreed, that the said petitioner proceed, according' to law, to advertise and make sale of the real estate above described, or as much thereof as may be necessary to pay the debts now due from said estate, and the costs of administration now due and to accrue. And it is ordered and decreed by the court, that said sale shall be made on the following terms, viz. : {here sei forth the terms, place, time, and jitaitner of the sale as prescribed in the decree) which terms shall be distinctly set forth in all the advertisements of said sale. It is further ordered that upon such a sale being made, that said {name of said administrator) shall make and execute to the purchaser or pur- chasers of said real estate, good and sufficient deed or deeds to convey the interest of said deceased therein at the time of his decease, and that said. {name of the administrator) report his action in the premises with all con- venient speed. And it is further ordered, that his cause stand continued^ for said report. And Whereas, In pursuance of said order and decree,, the said party of the first part did, on the day of A.D. 18 , between the hours of ten o'clock in the forenooa and five o'clock in the afternoon of such day, at {place of sale), expose to sale by public vendue, to the highest bidder, the lands and real estate so ordered to be sold, in said decree, having first given notice of the time, terms, and place of such sale, with a description of such lands and real estate, according to the terms and requirements of said order and decree, and of the statute regulating such sales, as will more fully and at large appear by the report of such sale, made by said party of the first part, as administrator as aforesaid, to the said court. And Whereas, At such sale, the said party of the second part became the purchaser of the following described lands and real estate, being the highest bidder therefor, at the following price ; that is to say {here state, •what part, or the whole, of the above-described lands were sold, and at what pirice). Now Therefore, This indenture witnesseth, that the said party of the first part, by virtue of the order and decree aforesaid, and in consideration of the premises, and for the further consideration of the sum of dollars, to him in hand paid by the said party of the second part, the receipt of which is hereby acknowledged, has granted, bargained, sold, and conveyed, and by these presents does grant, bargain, sell, and convey unto the said party of the second part, his heirs and assigns, the lands and real estate last above described as having been sold to the said party of the second part, to have and to hold the same with all the appurtenances thereunto belonging, or in anywise appertaining, to the only proper use, benefit, and behoof of the said party of the second part, and his heirs and assigns forever. And the said party of the first part, for the consideration aforesaid, covenants with the said party of the second part, and his heirs and assigns, that he has in all respects" 34 530 DEEDS CONVEYING LAND. complied with the order and decree aforesaid, and with the directions of the law generally in such case made and provided. In "Witness Whereof, The said party of the first part as administrator as aforesaid, has hereunto set his hand and seal the day and year first above written. (Signature^ (Seal.) Administrator of {name of deceased) as aforesaid. In Presence of State of ) |-ss. County.) This day personally appeared before the undersigned, within and for the county and State aforesaid, executor of the estate of (fiame of deceased) deceased, who is personally known to me to be the person whose name as such is subscribed to the foregoing deed, as having executed the same, and acknowledged that he had as such execu- tor subscribed to the foregoing deed, as having executed the same, and acknowledged that he had as such executor executed the same for the uses and purposes therein expressed. In Witness Whereof, I have hereunto set my hand and seal, at my office in said county, this day of A.D. i8 {SigJtature.) {Seal.) (159.) Deed Poll of Guardian of a Minor. Know all Men by these Presents, That whereas {name of guardian and grantor) of in the County of and State of , guardian of {name of the ward) a minor child of {name of the father of the minor) by an order of the Probate Court, held at within and for County of on the day of in the year one thousand eight hundred and was licensed and empowered to sell and pass deeds to convey certain real estate of the said minor ; and whereas, I the said guardian, having given pub- lic notice of the intended sale, by causing notifications thereof to be pub- lished once a week, for three successive weeks, prior to the time of sale, in the newspaper called the printed at and having first taken the oath and given the bond by law in such cases required, did on the day of in the year one thousand eight hundred and pursuant to the order and notice aforesaid, sell by pubhc auction the real estate of the said minor hereinafter described, to {the name, residence, and occupation of the purchaser and grantee) for the sum of dollars ^5^ he being the highest bid- der therefor. Now, Therefore, Know ye, That I, the said {name of the guardian and grantor) guardian as aforesaid, by virtue of the power and authority in FORMS OF DEEDS. 53 1 me vested as aforesaid, and in consideration of the aforesaid sum of dollars jTrn to me paid by the said the receipt whereof is hereby acknowledged, do, by these presents, give, grant, sell, and convey unto the said {name of the purchaser and grantee) a certain lot or parcel of land, situated, bounded, and described as follows {here describe the premises as directed in Form 107.) To Have and to Hold the aforegranted premises, with all the privileges and appurtenances to the same belonging, to him the said {purchaser's name) and his heirs and assigns, to his and their use and behoof forever. And I, the said {name of guardian) for myself, my heirs, executors, and administrators, do hereby covenant with the said {name of purchaser) and his heirs and assigns, that in pursuance of the order aforesaid, I gave public notice of the said intended sale, in manner aforesaid, and that I took the oath by law required, previous to fixing on the time and place of sale, and gave the bond previous to said sale. In Witness Whereof, I, the said guardian as aforesaid, have hereunto set my hand and seal, this day of in the year of our Lord one thousand eight hundred and {Signature.) {Seal.) Signed, Sealed, and Delivered in Presence of ss. A.D. 18 . Then personally appeared the above-named guardian, and acknowledged the foregoing instrument to be free act and deed. Before me, fustice of the Peace. (160.) Deed of Referee on Foreclosure, in use in the Middle States. This Indenture, Made the day of in the year one thousand eight hundred and between {name and resi- dence of the referee and grantor), a referee duly appointed as hereinafter mentioned, of the first part, and {name, residence, and occupation of the grantee) of the second part. Whereas at a Terra of the {name of the court) court, on the day of one thousand eight hundred and it was among other things ordered and adjudged by the said court, in a certain action then pending in the said court, between {names of plaintiff and defendant in the action). That all and singular the mortgaged premises mentioned in the complaint in said action, and in said judgment described, or so much thereof as might be sufficient to raise the amount due to the plaintiff for principal, interest, and costs in said action, and which might be sold separately, without mate- rial injury to the parties interested, be sold at public auction, according to the course and practice of said court, by or under the direction of the said 532 DEEDS CONVEYING LAND. party of the first part as referee thereby, duly appointed for that purpose ; that the said sale be made (here state the directions in the order of court as to the place and time of the sale) that the said referee give public notice of the time and place of such sale, according to the course and, practice of said court, and that any of the parties in said action might become a purchaser or purchasers on such sale ; that the said referee execute to the purchaser or purchasers of the said mortgaged premises, or such part or parts thereof as should be sold, a good and sufficient deed or deeds of conveyance for the same. And Whereas, the said referee, in pursuance of the said judgment of the said court, did on the day of one thousand eight hundred and sell at public auction at (the place of sale) the premises in the said judgment mentioned, due notice of the time and place of such sale being first given, agreeably to the said judgment ; at which sale the premises hereinafter described were struck off to the said party of the; second part for the sum of dollars, that being the highest sum bidden for the same. Now this indenture witnesseth, that the said referee, the party of the first part to these presents, in order to carry into effect the sale so made by him as aforesaid, in pursuance of the judgment of said court, and in conformity to the statute in such case made and provided, and also in consideration of the premises, and of the said sum of money so bidden as aforesaid, being first duly paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath bargained and sold, and by these presents doth grant and convey unto the: said party of the second part, the premises aforesaid, situate, bounded, and described as follows [describe here the premises sold as directed in Form 107). To Have and to Hold all and singular the premises above mentioned and described, and hereby conveyed, or intended so to be, unto the said party of the second part, his heirs and assigns, to and for his and their only proper use, benefit, and behoof. In Witness Whereof, The said referee as aforesaid, hath hereunto set his hand and seal, the day and year first above written. (Signature.) (Seal.) Sealed and Delivered in the Presence of State of '•ss. County. ' :f On the day of one thousand eight hundred and before me came known to me to be the individual described in, and who executed the above conveyance, and acknowledged' that he executed the same. (^Signature>) FORMS OF DEEDS. ^23 (161.) Dedd of Collector of TaXes, To all Persons to whom these Presents shall come, I, {name of collector), of in the County of and State of collector of taxes lor said town of duly chosen and qualified at the last annual meeting of the inhabitants of said town, held on the day of last past sends greeting : Whereas, the assessors of said town of {name of the town) in their list of assessments committed to me, the said {name of the collector) to collect, have assessed {name of the party for whose taxes the land is sold) a resident owner of a certain tract of land situated in said bounded and descfibed as follows, viz. {describe the premises as directed in Form 107) the sum of {amount of tax) and j^j dollars, as a tax on said premises for the year eighteen hundred and And Whereas I, the said {name of collector) have demanded payment ef said tax of [ftatne of party taxed) more than fourteen days before proceeding to advertise and sell as hereinafter set forth. And Whereas, the said {name of the party taxed) has given no written authority to any inhabitant of said town, as his attorney to pay the tax im- posed on said land, and no niortgagee of said land has given written notice to the clerk of said town, that he the said mortgagee holds a mortgagfe thereon, nor given written authority to any inhabitant of said town as his attorney, to pay said tax. And Whereas, I, the said having given public notice of the time and place of sale of the said land, for the non-payment of said tax, by an advertisement thereof three weeks successively, in the newspaper called the printed and published in in said county, the last publication of said advertisement being one week before the time of said sale : also by posting a like notice on said land three weeks before the time of said sale ; and also by posting a like notice {here state whatever other places the notice was posted at) being two public places in said town, three weeks before the time of said sale. Which notices severally contained _ the name of the said {name of the party taxed) and the amount of the tax assessed on said land; also a substantially accurate description of said-land^ did, on the day of instant, pursuant to the authorit})- and notice aforesaid, no person appearing to pay said tax, aiid it being the Opinion of me, that the said land could not be conveniently divided and a part thereof set oil withoift injury to the residue, and judging it to be most for the pubKc interest to sell the whole of said land, sell, at public auction, fhe said land above described, to {name of purchaser and grantee) for the sum of and y^ dollars, he being the highfest bidder therefor. Now T?herefore KnOw Ye, that 1, the said {name of the collector) by virtue of the authority in me vested as aSoresE^id, and in consideration of the aforesaid sum of and ^rnr dollars, to me paid by the said {name 534 DEEDS CONVEYING LAND. of the purchaser) the receipt whereof is hereby acknowledged, do hereby give, grant, bargain, sell, and convey unto the said all that said tract or parcel of land above mentioned and described, with the appurte- nances thereto belonging. To Have and to Hold the same to him, the said grantee, his heirs and assigns, to his and their use and behoof forever; subject, nevertheless, to the right of redemption, according to law. And I, the said grantor, do covenant with the said grantee, his heirs and assigns, that in malcing the said sale as above set forth, I have complied with, observed, and obeyed all the provisions of law for the sale of real estate for the non-payment of taxes. In Witness Whereof, I, the said collector, have hereto set my hand and seal, this day of in the year eighteen hundred and Executed and delivered in presence of State of (Signature) (Seal.) ■ ss. County.) A.D. i8 Then personally appeared the above-named collector, and acknowledged the above instrument to be his free act and deed. Before me, Justice of the Peace. (162.) Deed of Assignee, in use in the Western States. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and (A.D. i8 ) between («a;«^, residence, a7id occupation of the assignee who is the grantor) as assignee of (name, residence, ajid occupation of assignor) of the one part, and (name, residence, and occupation of the purchaser who is grantee) of the other part: Whereas, The said (name of the assignor) being lawfully seized in his demesne, as of fee, among other things, of and in a certain lot, piece, or parcel of ground, situate in the County of and State of known and described as follows, to wit (here describe the premises as in Form 107). And being so thereof seized, did, on or about the day of A.D. one thousand eight hundred and (A.D. 18 ), enter into a written contract with the said party of the second part for the ■ sale of the above-described premises for the sum of dollars. And Whereas, The said (name of the assignor) did, by his certain deed of assignment, bearing date the day of A.D. 18 , grant, bargain, sell, aliene, remise, release, convey, assign, transfer, and set over (with other property) the above-described lot, piece, or parcel of ground unto the said party of the first part, his successors, FORMS OF DEEDS. S3S executors, administrators, and assigns forever, in trust nevertlieless, to and for tlie uses and intent and purposes in said deed of assignment mentioned and set fortli, reference tliereto being had may fully and at large appear ; ■which said deed of assignment is recorded in Book page of deeds, in the office of (the clerk of the Circuit Court of said county, and ex-officio recorder of deeds). And Wliereas, The said assignor did not comply with the said contract before the execution and delivery of the said deed of assignment to the said party of the first part. No-w this Indenture "Witnesseth, That the said {iiajtie of the assignee and grantor) assignee of said {name of the assignor) for and in con- sideration of the sum of dollars (being the balance of the purchase money and interest due on said contract), unto him in hand paid by the said party of the second part, at and before the ensealing and delivery hereof, the receipt whereof is hereby acknowledged by these pres- ents, does grant, bargain, sell, aliene, release, and confirm unto the said party of the second part, and his heirs and assigns, all the above mentioned and described lot, piece, or parcel of grouiid, together with all and singular the rights, hereditaments, and appurtenances thereunto belonging or in ar.ywise appertaining, and all the estate, right, title, interest, property, claim, and demand whatever, that he the said assignor had and held at and immediately before the execution and delivery of the said deed of assignment to said party of the first part, and also all the right, title, interest, property, claim, and demand whatever, that the said party of the first part acquired in, under or by virtue of the said deed of assignment by said assignor, to him, the said party of the first part. To have and to hold the same, together with all and singular the appurtenances and privileges thereunto belonging, or in anywise appertaining, and all the estate, right, title, interest, and claim what- soever, either in law or equity, that said assignor had and held at the time of and immediately preceding the execution and delivery of said deed of assignment to the said party of the first part, and all the right, title, interest, and claim whatsoever of the said party of the first part, either in law or equity, to the only proper use, benefit, and behoof of the said party of the second part, his heirs and assigns forever. In Witness "Whereof, The said party of the first part has hereunto set his hand and seal, the day and year first above written. {Signature of Assignee^ (Seal.) State of ) County. ) I, a in and for said county, in the State aforesaid, do hereby certify that who is personally known to me as the real person whose name is subscribed to the within deed, appeared betore me this day, in person, and acknowledged that he executed 53(6 DEEDS CONVEYING LAND. and delivered the said deed, as his free and voluntary act, for the uses and purposes therein set forth. Given under my hand and seal this day of in the year of our Lord one thousand eight hundred and {Signat7i/re.) (Seal.) (163.) Aeknowledgment of Grantor and Wife identified, before Commissioner for another State. State of ■) > ss. County of ) Be it Bemembered, That on the day of one thousand eight hundred and before me, commissioner for the State of {name of the State of which he is commis- sioner) resident in the of , duly appointed, commissioned, and sworn to take acknowledgments and proof of deeds and other -writings in the State of , to be used or recorded in the said State of {name of the State cf which he is commissioner) and to administer oaths and affirmations, and to take depositions in said State of , to be used -within the said State of appeared {name of grantor) and {name of wife of grantor) his wife, who are satisfactorily proven to me to be the individuals described in, and who exe- cuted the within deed, from said {name of grantor) ■zxA wife to {name of grantee) by the oath of {witnesses to their identity) who being by me duly cautioned and sworn, deposed that he knew them, the individuals, then present, to be the persons described in, and who executed the within deed. The said and his wife, then and there acknowledged to me that they executed the said deed for the purposes therein mentioned ; and the said {name of the wife) being exam- ined by me privily, and apart from her said husband, and the contents and effect of the said deed being by me first duly explained to her, did then and there acknowledge that she executed the same for the purposes therein mentioned, freely and without compulsion of or from her said husband. In Witness Whereof, I have hereunto set my hand and affixed the seal of my office, on the day of in the year of our Lord one thousand eight hundred and {Signature^! {Seal.) Dominion of Canada. The two Canadas were separated as to civil rights in 1791, and the French laws were allowed to remain in force in Lower ■Canada, while the civil laws of England were declared to be in force in Upper Canada. Now, both of these provinces, and with FORMS OF. DEEDS. 537 them nearly all the other British provinces in North America, are consolidated into the Dominion of Canada. But the same distinction of law continues to a considerable extent. In the Province of Quebec, formerly Lower Canada, the principles, -forms, and usages of the French law prevail largely ; while, in the other provinces, the common law of England prevails, as in the United States generally, and the forms and usages are sub- stantially similar in all of them. We give selected forms of deeds of grant and sale, mort- 'gages, and leases, from different provinces, which we believe will suffice for practice generally throughout the Dominion. There are certain provisions, which, though not universal, are prevalent, and would always be safe and prudent. Deeds con- veying land are now almost universally registered, and there should be a subscribing witness, who declares in an affidavit his name, residence, and occupation, and makes oath : i. To the exe- cution of the original, and of the duplicate, if there be one. 2. To the place and date of execution. 3. That he knew the parties to the instrument, or one or more of them, as the case may be. If the deed be made in Quebec, it should be executed before ^ judge, or prothonotary, or the clerk of the Circuit Court, or a ■commissioner empowered to take affidavits, or a notary public. (164.) Deed of Land in use in the Province of Ontario. This Indenture, Made (/« duplicate) the day of one thousand eight hundred and in pursuance of the Act respecting short forms of conveyances, between {Jiere insert the name, occu- J)ation, and residence of the grantor or grantors) of the first part, and {here insert the name, occupation, and residence of the grantee or grccntees) of the second part, Witnessetli, That in consideration of {here insert the price paid) of lawful money of Canada, now paid by the said part of the second part to the said part of the first part (the receipt whereof is hereby by acknowledged), the said part of the first part do grant unto the said part of part, heirs and assigns forever, all and singular th certain parcel or tract of land and premises situate, lying and being .{here insert a description of the premises sold, substantially the same as in Form 107). To Have and to Hold unto the said part of the partj 538 DEEDS CONVEYING LAND. heirs and assigns, to and for their sole and only use forever ; subject, nevertheless, to the reservations, limitations, provisos, and condi- tions expressed in the original grant thereof from the Crown. And the said part of the first part release to the said part of the part all claims upon the said lands. In Witness Whereof, The said parties hereto have hereunto set their hands and seals. {Signatures^ {Seals.) Signed, Sealed, and Delivered in the Presence of County of to wit: I, make oath and say : i. That I was personally present and did see the within instrument and duplicate duly signed, sealed, and executed by the part thereto. 2. That the said instrument and duplicate were executed at the . 3. That I, know the said part . 4. That I am a subscribing witness to the said instrument and duplicate. Sworn before me at the of in the County of this day of in the year of our Lord 18 . A Cotn?nissioner for taking affidavits in B. R., &-=£. (1G5.) Deed of Land with Mortgage Back to secure the Price, in use in the Province of Quebec. On This Day, the of in the year of our .Lord one thousand eight hundred and before the undersigned public notar , duly commissioned and sworn, in and for the heretofore Province of Lower Canada, now the Province of Quebec, in the Dominion of Canada, residing in the city of Montreal, in the said Province, personally appeared {name, residence, and occupation of the grantor or grantors) who acknowl- edged and confessed to have bargained, sold, assigned, transferred, and made over, and by these presents do bargain, sell, assign, transfer, and make over, from henceforth and forever, with promise of warranty against all gifts, dowers, mortgages, substitutions, alienations, and other hindrances whatsoever, to {name, residence, and occupation of the grantee or grantees') part to these presents, and accepting thereof, for heirs and assigns, {the description of the premises conveyed substantially as in Form 107,) with all and every the members and appurtenances thereunto belonging, of all which the said purchaser declare to have a perfect knowledge, as having seen and viewed the same, and therewith content and satisfied. Which said vendor lawfully seized thereof, by virtue of a good and sufficient title, the same having been acquired {here give a brief but accurate accottnt or abstract of the title). The aforesaid hereby bargained and sold lot , piece , or parcel of land and premises. FORMS. OF DEEDS. 53^ To Have, Hold, Use, and Enjoy the aforesaid bargained and sold and premises, with their rights, members, and appur- tenances, unto the said heirs and assigns, as their own proper freehold forever, by virtue of these presents, to enter upon and take possession of the aforesaid and premises . The present bargain and sale is made in manner as aforesaid, for and in consideration of the sum of And for Security of the due and faithful payment of the said balance of consideration money and interest, the hereby bargained and sold lot of and premises, are, by these presents, specially, and by privilege of bailleur de fonds, mortgaged and hypothecated. And, as further security, the said purchaser do hereby bind and oblige immediately to insure and to keep constantly insured at own cost and expense against loss by fire, with such insurance com- pany or companies as the said vendor or representatives may approve of, for a sum of money equal to the amount of the present obligation, the house and other buildings erected on the above-described piece and parcel of land, and to transfer to the said vendor and representatives the policy or policies of such insurance and insurances, together with the sum of money thereby insured, the whole as long as any part or portion of the said amount in principal or interest may remain unpaid. Failing which, the said vendor heirs and assigns, shall have the right to do so, and the said pur- chaser heirs and representatives, shall be bound to repay on demand to the said vendor heirs and assigns, all such sum and sums of money which he or they may have expended in so doing; and for security thereof the said premises are hereby further hypothecated to the extent of And in consideration of the premises, the said vendor do hereby trans- fer and set over to the said purchaser all right of property, claim, title, interest, demand, seizin, possession, and other rights whatsoever, which the said vendor can have, demand, or pretend in or upon the aforesaid hereby bargained and sold lot ; piece , or parcel of land and premises of which hereby divest in favor of the said purchaser heirs and assigns consenting and agreeing, that the said purchaser be, and remain seized and invested with the full and entire possession thereof, and for that purpose, do hereby constitute the bearer of these presents Attor- ney, to whom give all necessary power and authority to that effect, — For thus, &"€. And at the making and passing of these presents also personally appeared and intervened Dame wife of the said by her said husband duly and specially authorized for all and every the effects /ind purposes hereof; who, after having had and taken communication of the foregoing deed of sale, declared to have renounced, as by these pres- ents, she doth, as well in her own name and behalf, as for and in the name and on behalf of her child or children born or to be born, issue of her mar- riage with the said renounce to all dower and all right and title of dower, soit coutumier ou prefix which she, the said 540 DEEDS CONVEYING LAND. might or of right ought to have or claim in or upon the above-described and -hereby bargained and sold lot, piece, or parcel of land and premises, of which she hereby divests herself and her said children, declaring the said property and every part thereof, hereby freed, cleared, and discharged of and from all her said rights of dower, and all other her matrimonial rights and claims, whether legal, stipulated, or customary. And for the execution of these presents, and of every the premises, the said parties have elected their domicil at the place above mentioned. Where, etc. — Notwithstanding, etc. — -Promising, etc. — Obliging, etc. — Re- nouncing, etc. Done and Passed at the said city of Montreal, in the office of the said Notary, on the day, month, and year first before written, in the noon, and signed by the said with, and in the presence of said Notary, also hereunto subscribing, these pres- ents having been first duly read and executed under the number thousand hundred and (166.) Deed of Land with Covenants and Release of Dower, in use in the Province of Ontario. Tliis Indenture, Made {in duplicate^) the day of in the year of our Lord one thousand eight hundred and in pursuance of the Act respecting short forms of conveyances, between {here insert the naine, residence, and occupation of the grantor or grantors) of the first part {here insert the name of the wife of the grantor), wi of the said part of the first part ; of the second part ; and {here insert the name, residence, and occupation of the grantee or grantees) of the third part. "Witnesseth, That in consideration of of lawful money of Canada, now paid by the said part of the third part, to the said part of the first part (the receipt whereof is hereby by acknowledged), he the said part of the first part, do grant unto the said part of the third part, heirs and assigns forever, aiU and singular th certain parcel or tract of land and premises situate, lying, and being (here insert the description of the premises conveyed, stibstantially as in Form 107). To Have and to Hold unto the said part of the third part, heirs and assigns, to and for and their sole and only use forever ; subject, nevertheless, to the reservations, limitations, provisos, and conditions ex- pressed in the original grant thereof from the Crown. The said part of the first part covenant with the said part of the tliird part that he ha the right to convey the said lands to the said part of the third part, notwithstanding any act of the said part of the first part. And that the said part of the third part shall have quiet possession of the said lands, free from all incumbrances. FORMS OF DEEDS. 541, And the said part of the first part covenant with the said part of the third part, that will execute such, further assurances of the said lands as- may be requisite. And the said part of the first part covenant with the said part of, the, third part, that he ha done no act to encumber the said lands. And the said part of the first part release to the said part of the third, part all claims upon the said lands. And the said part of the second part, wi of the said part of the first, part, hereby bar dower in the said lands. In Witiiess "Whereof, The said parties hereto have hereunto set their hands and seals. Signed, Sealed, and Delivered in the. Presence of Received, on the day of the date of this Indenture, from the said part of the third part, the sum of beihg the full consid- eration therein mentioned. {Witness^ County OF to wit: I, of the in the County of makei oath and say: i. That I was personally present and did see the within in- strument and duplicate thereof duly signed, sealed, and executed" by the part theretOi 2. That: the said instrument and duplicate- were executed at the 3. That I, know the said' part . 4. That I am a subscribing' witness to the said iiistrument and^ duplicate. Sworn before me at in the County, of this day of in the year of our Lord 18, A Commissioner for taking A ffldavitsin B, R., etc. (167.) Deed of Grant and Quitclaim, for General Use. Th.is Indenture, Made the day of in the year of our Lord one thousand eight hundl-ed and between \nam^, residence, and occupation of the grantor) of the one part, and {name, residence, and occupation of the -grantee) of the other part, witnesseth that for and in consideration of the sum of of lawful money of to the said in hand well and truly paid by the said at or. immediatejy before the. sealing and delivery of these presents (the receipt whereof the said do hereby acknowledge, and of and from the same, and every part thereof, do acquit, release, and discharge the said heirs, executors, administrators,, and assigns forever by these presents) the said hath granted, released, and confirmed, and by these presents doth grant, release, and confirm to the said party of the first part. {Here describe carefully the premises conveyed). 542 DEEDS CONVEYING LAND. Together with all and every the rights, privileges, easements, advant- ages, and appurtenances whatsoever, to the said hereditaments belonging, or in anywise appertaining, or thereunto now or heretofore holden, used, occupied, or enjoyed. To Have and to Hold the said messuages and tenements, land and hereditaments, and all and singular other the premises hereinbefore granted, appointed, and released, or expressed and intended so to be, with their ap- purtenances, unto and to the use of the said heirs and assigns forever. Subject, nevertheless, to the quit-rents to become due, exceptions, reservations, covenants, and conditions in the original grants or letters-patent of the said premises reserved and contained. And the said do hereby for heirs,, executors, and administrators, covenant, promise, and agree with and to the said heirs and assigns, in manner and form following ; that is to say, that it shall and may be lawful to and for the said heirs and assigns, from time to time, and at all times hereafter, peaceably and quietly to enter into and upon, and to have, hold, occupy, possess, and enjoy the said messuages, lands, and other heraditaments hereinbefore granted and released, or expressed and intended so to be, with their appurtenances, and to receive and take the rents, issues, and profits thereof, and of every part thereof, to and for his and their proper use and benefit, without the lawful let, suit, trouble, denial, eviction, interruption, claim, or demand whatsoever, of or by the said . heirs or assigns, or of or by any other person, lawfully or equitably claiming or to claim, by, from, or under, or in trust for him, them, or any of them. In Witness Whereof, I, the said {name of the grantor), have hereunto subscribed my name and affixed my seal, at on the day of in the year of our Lord {Name of Grantor^ {Seal.) Executed and Delivered in Presence of {Names of witnesses^ % Received, on the day of the date of the within written Indenture, of and from within named, the sum of of lawful current money of being the full consideration money within men- tioned, to be paid by to Witness. This Deed was acknowledged before me by therein named apart from her husband, to have been voluntarily executed by her, and that she was aware of the nature of the contents thereof. Dated this day of A.D. i8 J. P. for County. FORMS OF DEEDS. 543 (168.) Deed of Grant of Sale of Land, in use in Prince Edward Island. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between {name, residence, and occupation of the grantor) of the one part, and {name, resi- dence, and occztpation of the grantee) of the other part, Witnesseth, That for and in consideration of the sum of of lawful money of Prince Edward Island, to the said in hand well and truly paid by the said at or immediately before the sealing and delivery of these presents (the receipt whereof he the said ' doth hereby acknowledge, and of and from the same, and every part thereof, doth acquit, release, and discharge the said heirs, executors, administrators, and assigns, and every of them, forever, by these presents) he the said hath granted, bargained, sold, aliened, released, and confirmed, and by these presents, doth grant, bargain, sell, aliene, release, and confirm (and the said {name of the wife of the grantor) doth hereby release all her right of dower) unto the said heirs and assigns, all that tract, piece, or parcel of land, situate, lying, and being {describe carefully the premises sold and conveyed). Together with all woods, underwoods, ways, waters, watercourses, houses, outhouses, yards, buildings, stables, gardens, fences, profits, com- modities, privileges, easements, and advantages whatsoever, to the said lands, hereditaments, and premises belonging, or in anywise appertaining, or there- with usually held, used, occupied, possessed, enjoyed, reputed, taken, or known as part, parcel, or member thereof, or of any part thereof ; and the reversion and reversions, remainder and remainders, rents, issues, and prof- its thereof, and of every part thereof ; and all the estate, right, title, trust, interest, property, claim, and demand whatsoever, both at law and in equity, of the said of, in, to, or out of the said lands, hereditaments, and premises, or any part thereof : To Have and to Hold the said lands, hereditaments, and premises hereby granted and released, or intended so to be, with their and every of their rights, members, and appurtenances, unto the said heirs and assigns, to the use of the said heirs and assigns forever ; subject, nevertheless, to all taxes, assessments, and other public burdens now imposed or hereafter to be imposed on the said premises men- tioned to be hereby granted, or any part or parcel thereof. And the said heirs, executors, and administrators, covenant, promise, and agree to and with the said heirs and assigns, by these presents, in manner following; that is to say, that the said at the time of the sealing and delivery of these presents, lawfully, rightfully, and absolutely seized of and in, or well and sufficiently entitled unto, 544 DEEDS CONVEYING LAND. the said land, hereditaments, and premises hereby granted and released, or intended so to be, with the appurtenances to the same belonging, of or for a good, sure, perfect, lawful, absolute, and indefeasible estate of inheritance in fee-simple in possession, without any manner of condition, use, trust, power of revocation, limitation of use or uses, or any other restraint, cause, matter, or thing whatsoever, to alter, change, charge, abridge, defeat, encum-- ber, revoke, or make void the same : and that he the said how ha in good right, full power, and lawful and absolute authority to grant, release, and convey all and singular the said lands, hereditaments, and premises, with the appurtenances, to the use of the said' heirs and assigns, in manner aforesaid, according to the true intent and meaning of these presents : and also, that the said lands, hereditaments, and premises hereby granted and released, or intended so to be, and every of them, and every part thereof, with the appurtenances to the- same belonging, shall and lawfully may from time to time, and at all times hereafter, remain, continue, and be to the use of the said heirs and assigns, and shall and may accordingly be peaceably and quietly held and enjoyed by the said heirs and assigns, without any lawful let, suit, trouble, molestation, or interruption whatsoever, of, from, or by the said heirs or assigns, or any other persons whomso- ever lawfully or equitably claiming, or to claim, by, from, or under, or in trust for him or them, or any of their ancestors ; and that freely, clearly, and absolutely saved, defended, kept harmless, and indemnified by the said heirs, executors, or administrators, of, from, and againstl all former and other estates, rights, titles, liens, charges, and encumbrances whatsoever, had, made, done, committed, executed, or suffered by the said or any of their ancestors, or any other person or persons whomsoever lawfully or equitably claiming, or to claim by, from, or under, or in trust for him, them, or any of them, or by or through his, their, or any of their wilful means or default, consent, privity, or procurement ; and, further, that the said heirs, and all and every other person or persons whomsoever having or lawfully, claiming, or who shall or may have or lawfully claim, any estate, right, title,, . trust, or interest whatsoever, at law or in equity, of, in, to, or out of the said lands, hereditaments, and premises hereby granted and released, or intended so to be, or any of them, or any part thereof, by, from, or under, or in trust for or any of ancestors, shall and will from time to time, and at all times hereafter, upon the request and the cost and charges of the said heirs or assigns, make, do, perform, acknowledge, suffer, and execute, or cause and procure to be made, done, performed, acknowledged, suffered, and executed, all and every such further and other lawful and reasonable act and acts, thing and things, devises,, conveyances, and assurances in the law whatsoever, for the further, better, more perfect, and absolute settling, conveying, and assuring of all and singu- lar the said' lands, hereditaments, and premises hereby granted and released,- ABSTRACT OF DEEDS. 545 with their appurtenances, to the use of the said heirs and assigns, as by the said heirs or assigns, or his, their, or any of their counsel learned in the law, shall be reasonably devised, advised, or required. And the parties aforesaid have hereunto set their hands and seals, at on the day of in the year of our Lord (Name of grantor^ {Seal.) (Name o/grantee.) (Seal.) Exectited and Delivered in Presence of (Name of witnesses.) $ Received, on the day of the date of the within written Indenture, of and from within named, the sum of of law- ful current money of being the full consideration money within mentioned lo be paid by to Pf^iiness. This Deed was acknowledged before me by therein named apart from her husband, to have been voluntarily executed by her, and that she was aware of the nature of the contents thereof. Dated this day of A.D. i8 y. P. for County. ABSTRACT OF THE LAWS OF ALL THE STATES RELATING TO DEEDS AND THEIR REQUIREMENTS. AIiABAMA. — Every deed must be in writing or printed, and on parch- ment or paper, signed at the foot and attested by a witness or else acknowl- edged, arid recorded ; and if they purport on their face to be sealed instruments, they have such force. ARKANSAS. — Deeds are construed to pass the whole estate of the grantor, unless specially limited. They must be executed in the presence of two witnesses, or acknowledged before two witnesses who subscribe their names as such, and acknowledged before the proper officer, and must be recorded, to be effectual against third parties. CALIFOBITIA.— Deeds are known under the Code as " grants." They pass the whole title and one in fee-simple, unless an express reservation is made, and must be acknowledged or proved, and recorded in the office of the Recorder for the County where the land is situated. There is no dis- tinction between sealed and unsealed instruments. COLOE.ADO.— The whole estate conveyed passes unless there is an express limitation. The deed must be acknowledged and recorded in the County where the land is situated. No witnesses are required, and a scroll answers for a seal. 35 546 DEEDS CONVEYING LAND. CONirECTICTJT.— The deed must be in writing, signed, sealed, and acknowledged by the grantor, attested by two witnesses, and It must be recorded in the town where the lands lie. DELAWARE. — A deed in order to be recorded must be acknowledged, and it must be recorded in the office for the County where the land lies, within a year. Only one witness is necessary, and a scroll answers for a seal. FLOIIIDA.— Deeds must be in writing, sealed and delivered in presence of at least two witnesses ; must be acknowledged before a proper officer, and recorded in the County where the land is situated, within six months after the execution of the same. A scroll answers for a seal. GEORGIA. — A deed must be in writing, signed and sealed by the grantor ; attested by at least two witnesses ; acknowledged before the proper officer, and recorded in the Clerk's office of the Superior Court for the County where the land lies, within one year. It maybe recorded afterward, but loses priority over a subsequent deed which is recorded within the year. A scroll answers for a seal. ILZilNOIS. — Deeds convey the whole interest unless there be a limita- tion ; must be acknowledged and recorded in the County where the land is situated. No witnesses are required, and a scroll answers for a seal. INDIANA. — The word " heirs " is not necessary in deeds, and seals and scrolls are abolished. The deed must be in writing, signed and acknowl- edged, and recorded in the County where the lands are. IOWA. — Every deed passes the grantor's whole interest unless a con- trary intent appears. Seals are not necessary, neither are witnesses. Deeds must be acknowledged before a Judge or Clerk of a Court having a seal, a Notary Public or Justice of the Peace, and recorded in the County where the lands lie. KANSAS. — Deeds must be in writing, subscribed by the grantor, or his agent or attorney, acknowledged and recorded in the County where the land is. Private seals, except of corporations, are abolished. KENTUCKY. — The deed must be in writing, acknowledged, and recorded in the office of the clerk of the Court for the County where the land is. Seals are abolished. XiOTJISIANA. — Deeds should be acknowledged and attested by the person taking the acknowledgment, and two others, and should be recorded in the Parish where the property is. No seal or scroll is necessary. MAINE. — Deeds must be in writing, signed and sealed, acknowledged by the grantor, and recorded in the County where the land is. A scroll is sufficient for a seal. MARYLAND. — All deeds must be signed and sealed. They require at least one witness, and must be acknowledged and recorded within six months in the County where the lands lie. A scroll answers for a seal. MASSACHUSETTS.— Conveyances are made in writing, signed and sealed by the grantor or his attorney, and acknowledged and recorded in the County or District where the lands lie. No witnesses are necessary. A scroll is not sufficient. ABSTRACT OF DEEDS. 547 MICHIGAN.— Deeds must be signed and sealed, and witnessed by at least two persons, and acknowledged and recorded in the County where the property is. A scroll answers for a seal. MINNESOTA. — Two witnesses are necessary to every deed. It must be acknowledged and recorded in the County where the land is. A scroll answers for a seal. MISSISSIPPI. — Deeds must be sealed and acknowledged, or proved by one or more of the subscribing witnesses, and recorded in the office of the Clerk of the Chancery Court for the County where the lands are. If the deed is not acknowledged, two witnesses are necessary. A scroll answers for a seal. MISSOURI. — Witnesses are not necessary. The deed should be signed and sealed, acknowledged and recorded in the County where the land is. A scroll is equivalent to a seal. NEBBrASKA. — The deed must be signed in the presence of at least one witness, who must also subscribe as such, and acknowledged or proved, and recorded in the County where the land is. Seals are abolished. NEVADA. — Deeds must be signed, acknowledged, and recorded in the County where the land is. Witnesses are unnecessary, and a scroll answers for a seal. NEW HAMPSHIRE.— Deeds must be signed and sealed, attested by two or more witnesses and recorded in the County where the land is. A scroll is not sufficient. NEW JERSEY. — Deeds must be signed, sealed, acknowledged, and recorded in the county where the land is. A scroll answers for a seal, and witnesses are not necessary, though usually taken. NEW YORK. — Every deed must be subscribed and sealed — and a scroll is not sufficient — and if not duly acknowledged previous to its deliv- ery, must be attested by at least one witness. It must be acknowledged before the proper officer, and recorded in the County where the land is. NORTH CAROIilNA. — A scroll answers for a seal. Deeds must be acknowledged, or proved by one or more witnesses, and recorded Within two years in the County where the land is. OHIO.— Deeds must be in writing, signed, sealed, and acknowledged in the presence of two attesting witnesses ; acknowledged before the proper officer, and recorded in the County where the land is. A scroll is sufficient for a seal. OREGON. — Deeds must be signed and sealed (a scroll is sufficient), acknowledged, and recorded in the County where the land is. Two wit- nesses are necessary. PENNSYLVANIA.— The deed must be sealed, acknowledged, and recorded in the County" where the property is. One or more witnesses are usually taken. A scroll answers for a seal. RHODE ISLAND. — A scroll is insufficient, the seal must be affixed. The deed must be in writing, signed, sealed, and delivered ; acknowledged 548 MORTGAGES OF LAND. before the proper officer, and recorded in the office of the Cerk ,.f the Town where the property Is. S0T7TH CAROLINA.— The deed must be in writing, signed, sealed, and acknowledged, and recorded in the office of the Register of Mesne Conveyances for the County where the land is. A scroll answers for a seal. Two witnesses are necessary. TENNESSEE. — Deeds must be acknowledged by the vendor, or proved by two witnesses, and registered in the County where the land lies. Seals are abolished. TEXAS. — A scroll answers for a seal. The deed must be signed and sealed, and acknowledged, or proved by two witnesses, and recorded in the office of the Clerk of the County Court where the land lies. VEKMONT. — Deeds must be signed and sealed (and a scroll is not sufficienl) in the presence of two witnesses, acknowledged, and recorded in the Clerk's office of the town where tlie property is. VIRGINIA. — A deed must be signed and sealed by the grantor, and recorded within sixty days. A scroll is sufficient. WEST VIRGINIA. — Deeds must be executed under seal or scroll, acknowledged, or proved by two witnesses, and recorded in the County where the land is. WISCONSIN. — Deeds must be signed and sealed in presence of two witnesses, acknowledged, and recorded in the County where the lands are. A scroll answers for a seal. CHAPTER XXX. MORTGAGES OF LAND. The purpose of a mortgage is to give to a creditor the security of property. It is very similar to a pledge, although i)ot the same thing. Mortgages are now made of personal property, as well as of real property; but we will consider in this chapter a mortgage of real property ; or, as it is usually called, a mortgage deed. This is a deed conveying the land to the creditor as fully, and in precisely the same way, as if it were sold to him outright; but with an addition. This consists of a clause inserted before the clause of execution, to the effect that if the grantor (the mortgagor) shall pay to the grantee (the mortgagee) a certain amount of money at a certain time, then the deed shall be void. It is usually expressed in words substantially like these : MORTGAGES OF LAND. 545 " Provided, nevertheless, that if the said A B (the grantor), his heirs, executors, or administrators, shall pay to the said C D (the grantee), his executors, administrators, or assigns, the sum of $ -■ with interest (semi-annually, or otherwise as agreed on), on or before the day of , then this deed, and also a certain promissory note signed by said A B, whereby said A B promised to pay said C D, or his order, the said sum at the said time, shall both be void; and otherwise shall remain in full force." In some states it is more frequent to make a bond, instead )f a note, to be secured by the mortgage; and the proviso ihould be altered accordingly ; and it should also be made to ,2xpress any other terms agreed on. Some of these will be spoken of presently. In law, everything is a mortgage which consists of a valid' conveyance, and a promise, or agreement, which may be on the same or on a different piece of paper or instrument, providing that the conveyance shall be void when a certain debt is paid, or the act performed for which the mortgage is security. The mortgagee has now a title to the land; but it is subject to avoidance by payment of the debt. Until such payment, the land is his ; and all the mortgagor owns in relation to it is a right to pay the debt and redeem theland. Hence, a mortgagee has instantly as good a right to take possession of the land (unless, as is now common, the deed provides that the mortgagor may retain possession) as if he were an outright purchaser. Formerly, a mortgagor had a right to redeem his land only before or when the debt became due ; for if he did not pay the money when it was due, he had no further right. But courts of equity, deeming this too hard, allowed him a further time to redeem it. And courts of law adopted the same rule, which is also contained in the statutes of all our States. This right to redeem is called a right in equity to redeem, or, more briefly and comjnonly, an equity of redemption ; which all courts now regard and protect. The mortgagor may sell this equity of redemption, or he may mortgage it by making a second or other subsequent mortgage of the land, and it may be attached 550 MORTGAGES OF LAND. by creditors, and would go to assignees as a part of his property if he became insolvent. The time within which a mortgagor may thus redeem his land is usually three years. The law regards this equity as so important that it will not permit a party to lose it by his own agreement. Thus, if a mortgagor agrees with the mortgagee, in the most positive terms, or in any way he can contrive, or for any consideration, that he will have no equity of redemption, and that the mortgagee may ha-ve possession and absolute title as soon as the debt is due and unpaid, the law sets aside all such agreements, and gives the debtor his equity of redemption for three years. Within a few years, however, a way has been found to effect this purpose indirectly, which the law sanctions. Many persons object to lending their money on mortgage, because they will have to wait three years after the debt is due before the land can be certainly theirs. But it is now quite common for the mortgage deed to contain an agreement of the parties, that, if the money is not paid when it is due, the mortgagee may, in a certain number of day^ thereafter, sell the land (providing also such precautions to secure a fair price as may be agreed on), and, reserving enough to pay his debt and charges, pay over the balance to the mortgagor. This is called a power of sale mortgage. The three years of redemption do not begin from the day when the debt is due and unpaid, unless the mortgagee then enters and takes possession for the purpose of foreclosing the mortgage, as the legal phrase is ; by which phrase is meant extinguishing the equity of redemption. If the debt has been due a dozen years, the mortgagor may still redeem, unless the mortgagee has entered to foreclose, and three years have elapsed afterwards. He may make entry for this purpose in a peaceable manner, before witnesses, as pointed out in the statutes regulating mortgages, or by an action at law. If the mortgagor redeems, he must tender the debt, with interest, and the lawful costs and charges of the mortgagee ; but he will be allowed such rents and profits as the mortgagee has actually received, or would have received but for his own fault. MORTGA GES OF LAND. 551 It is commonly thought that the mortgagor .has a right to retain possession until the debt is due and unpaid, and in fact he usually does so. But we have seen that the mortgagee has just as much right of immediate possession as a buyer; and therefore, if it is not intended that he should have possession at once, the mortgage deed ought to contain a clause to the effect that the mortgagor may retain possession as long as he pays instalments and interest as due, and complies with his other agreements. One of these other agreements, which is now very common, is that the mortgagor shall keep the premises insured in a cer- tain sum for the security of the mortgagee; and, if there be such an agreement, it should be expressed in the deed. Other- wise, if the mortgagee insures the house, he cannot charge the premium to the mortgagor. If a mortgagor erects buildings on the mortgaged land, or puts fixtures there, and the mortgagee takes possession of the land, and forecloses the mortgage, he gets all these additions. If the mortgagee puts them on the land, and the mortgagor redeems, he gets the benefit of them all, without paying the mortgagee for them. Such is the effect of the law if there be no bargain between the parties about these things. But they may make any bargain about them they choose to make. In the Forms appended to this chapter are many Forms of release and discharge of mortgages. In some states it is com- mon to release a mortgage by a quitclaim deed from the holder of the mortgage to the holder of the land or of the equity or right of redemption. And not unfrequently it is done by an acknowledgment of satisfaction, release, or discharge drawn by the Register or Recorder of Deeds on the margin of the record of the mortgage, and duly signed by the mortgagee or holder of the mortgage. Any instrument will have the effect of discharging and annulling a mortgage, which declares with sufficient definiteness that the debt, obligation, or covenant, which that mortgage was intended to secure, is paid, satisfied, or performed; the instrument being duly signed, sealed, and acknowledged, and placed on record. It takes effect like other deeds from the time it is placed in the Recorder's hands. 552 MORTGAGES OF LAND. Whenever a mortgage is discharged in any way, the Recorder makes an entry to that effect on the margin of the record of the mortgage. The remarks which were made at the close of the preceding chapter (just before the Forms) concerning the various Forms of deeds conveying land, apply with equal force to deeds of mort- gage of land ; and I refer to them now because they are equally necessary to the proper understanding and use of the following Forms. (169.) A Promissory Note, to be Secured by Mortgage. i8 for value received promise to pay to dollars, at with interest at the rate of per cent, per annum. This note is secured by a deed of mortgage of even date herewith from to % (Signature) (170.) Bond, to be Secured by a Mortgage. Know all Men by these Presents, That I {name of obligor) of in the County of and State of , am held, bound, and obliged unto {name of obligee) of in the County of and State of in the sum o£ {penalty usually twice as much as the actual debt) to be paid to the said {the obligee) his executors, administrators, heirs, or assigns, and to this payment I hereby bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal, this day of in the year The Condition of the above obligation is such, that if I the said {name of the obligor) or my heirs, executors, or administrators, shall pay or cause to be paid unto the said {name of the obligee) the sum of {here insert the amount of the debt or sjtm to be secured) on the day of in the year , with interest at per cent., payable six months from the date hereof, and every six months afterwards, until the said sum is paid, then the above obligation shall be void and of no effect, and otherwise it shall remain in full force. And I further agree and covenant, that if any payment of interest be withheld, or delayed for days after such payment shall fall due, the said principal sum and all arrearage of interest thereon, shall be and become due immediately on FORMS OF MORTGAGES, ETC. 553 the expiration of days, at tlie option of said {name of the obligee) or his executors or administrators. {Signature.) {Seal.) {Witness.) (171.) Mortgage without Power of Sale and without ■Warranty, but with Release of Homestead and of Dower. This Indenture, made this day of in the year of our Lord one thousand eight hundred and between {name, residence, and occupation of mortgagor) and {name of wife) wife of said {name of mortgagor) parties of the first part, and {name, residence, and occupation of jtwrtgagee) party of the second part. Whereas, The said party of the first part is justly indebted to the said party of the second part, in the sum of secured to be paid by a certain promissory note {or bond) {describe the note or bond). Now, Therefore, this Indenture Witnesseth, That the said parties of the first part, for the better securing the payment of the money aforesaid, with interest thereon, according to the tenor and effect of the said note (pr bond) above mentioned, and also in consideration of the further sum of one dollar to us in hand paid by the said party of the second part, at the delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, and conveyed, and by these presents do grant, bargain, sell, and convey unto the said party of the second part, his heirs and assigns forever, all that {here describe the premises as directed in Form 107). To Have and to Hold the Same, Together with all and singular Ihe tenements, hereditaments, privileges, and appurtenances thereunto belonging; or in anywise appertaining. And also all the estate, interest, and claim whatsoever in law as well as in equity, which the parties of the first part have in and to the premises hereby conveyed unto the said party of the second part, and his heirs and assigns, and to their only proper use, benefit, and behoof. And the said parties of the first part hereby expressly waive, re- lease, relinquish, and convey unto the said party of the second part and his heirs, executors, administrators, and assigns, all right, title, claim, interest, and benefit whatever, in and to the above-described premises, and each and every part thereof, which is given by or results from all laws of this State pertaining to the exemption of homesteads. Provided Always, and these Presents are upon this Express Con- dition, That if the said party of the first part, or his heirs, executors, or administrators, shall well and truly pay, or cause to be paid to th? said party of the second part, or his heirs, executors, administrators, or assigns, the aforesaid sum of money, with such interest thereon, at the time and in the manner specified in the above-mentioned note {or bond) according to the true intent and meaning thereof, then, in that case, these presents and everything herein expressed shall be absolutely null and void. SS4 MORTGAGES OF LAND. In Witness Whereof, The said parties of the first part hereunto set their hands and seals, the day and year first above written. (Sigtiature of mortgagor.) (Seal.) {Signature of wife of mortgagor) {Seal) Signed, Sealed, and Delivered in Presence of State of 1 S-ss. County. ) I, in and for the said county, in the State aforesaid, do hereby certify that {name of mortgagor) personally known to me as the same person whose name is subscribed to the foregoing mortgage, appeared before me this day in person and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. And the said {name of wife) wife of the said {name of mortgagor) having been by me examined, separate and apart, and out of the hearing of her hus- band, and the contents and meaning of said instrument of writing having been by me made known and fully explained to her, and she also by me being fully informed of her rights under the homestead laws of this State, acknowledged that she had freely and voluntarily executed the same, and re- linquished her dower to the lands and tenements herein mentioned, and also all her rights and advantages under and by virtue of all laws of this State relating to the exemption of homesteads, voluntarily and freely, and without the compulsion of her said husband, and that she does not wish to retract the same. Given under my hand and official seal, this day of A.b. i8 {Signature) {Seal) (172.) Mortgage, with Pow.er of Sale, to Secure a Bond, without Release of Dower. This Indenture, Made the day of in the year one thousand eight hundred and between {name, residence, and occupation of ?>iortgagor) party of the first part, and {name, residence, and occupatioji of mortgagee) party of the second part : Whereas, the said {name of mortgagor) is justly indebted to the said party of the second part in the sum of lawful money of the United States, secured to be paid by a certain bond or obligation bearing even date with these presents, in the penal sum of dollars, lawful money as aforesaid, conditioned for the payment of the said first-mentioned sum of {here state the amount due on the bond, and the time and tertns of payment) as by the said bond or obligation, and the condition thereof, reference being thereunto had, may more fully appear. Wow this Indenture Witnesseth, That the said party of the first part, FORMS OF MWRTGAGES, ETC. 555 for the better securing the payment of the said sum of money mentioned in tlie condition of the said bond or obligation, with interest thereon, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, released, conveyed, and confirmed, and by these presents does grant, bar- gain, sell, aliene, release, convey, and confirm unto the said party of the second part, and to his heirs and assigns forever, all {here describe the prem- ises as directed in Form 107). Together with all and singular the tenements, hereditaments, and ap- purtenances thereunto belonging, or in anywise appertaining, and the rever- sion and reversions, remainder and remainders, rents, issues, and profits thereof ; and also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof with the appurtenances : To have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, and his heirs and assigns, to his and their own proper use, benefit, and behoof forever. Provided Always, and these presents are upon this express condition, that if the said party of the first part, or his heirs, executors, or adminis- trators, shall well and truly pay unto the said party of the second part, or his executors, administrators, or assigns, the said sum of money mentioned .in the condition of the said bond or obligation and the interest thereon, at the time and in the manner mentioned in the said condition according to the true intent and meaning thereof, that then these presents, and the estate hereby granted, shall cease, determine, and be void. And the said {name of mort- gagor) for himself and his heirs, executors, and administrators, does cove- nant and agree, to pay unto the said party of the second part, or his execu- tors, administrators, or assigns, the said sum of money and interest as mentioned above and expressed in the condition of the said bond. And if default shall be made in the payment of the said sum of money above men- tioned, or the interest that may grow due thereon, or any part thereof, that then, and from thenceforth, it shall be lawful for the said party of the second part, or his executors, administrators, or assigns, to enter into and upon gU and singular the premises hereby granted or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said party of the first part, or his heirs, executors, administrators, or assigns therein, at public auction. And out of the money arising from such sale, to retain the principal and Interest which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the same premises, rendering the overplus of the purchase-money (if any there shall be), unto the said {name of mortgagor) party of the first part, or his heirs, executors, administrators, or assigns, which sale, so to be made, 556 MOR TGA GES* OF LA ND. shall forever be a perpetual bar, both in law and equity, against the said party of the first part, and his heirs and assigns, and all other. persons claiming or to claim the premises, or any i)art thereof, by, from, or under him or them, or any of them. In. 'Witness Whereof, The parties to these presents have hereunto inter- changeably set their hands and seals the daj' and year first above written. (Sii^naUire of inorti(agor.) (Seal.) {Signature of tnorlgagee.') {Seal.) Sealed and Delivered in the Presence of State of ^ )■ ss. County of ) On the day of in the j-ear one thousand eight hundred and before me personally came {name of both parties) who are known to me to be the individuals described in, and who executed the foregoing instrument, and acknowledged that they executed the same, {Signature^ (173.) Mortgage to secure a Debt, witli Power of Sale.— Short Form. This Indenture, Made the day of in the year one thousand eight hundred and between {name., residence, and occupation of mortgagor) party of the first part, and {name, residence, and occupation of mortgagee) ■pzrty oi ihe second part, witnesseth,' that the said party of the first part, in consideration of the sum of {the amount of the debt) to him duly paid before the delivery hereof, has bargained and sold, and by these presents does grant and convey to the said party of the sec»nd part, and his heirs and assigns forever, all {here describe the premises as directed in Form toy) with the appurtenances, and all the estate, right, title, and interest of the said party of the first part therein. This Grant is intended as a security for the payment of {het'e describe the debt) which payments, if duly made, will render this conveyance void. And if default shall be made in the payment of the principal or interest above mentioned, then the said party of the second part, or his executors, admin- istrators, or assigns, are hereby authorized to sell the premises above granted, or so much thereof as will be necessary to satisfy the amount then due, with the costs and expenses allowed by law. In Y/itness Whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written. {Signature.) {Seal.) Sealed ajtd Delivered in the Presence of FORMS OF MORTGAGES, ETC. 557 State of ^ >-ss. County of ) On the day of in the year one thousand eight hundred and before me personally came (name of mortgagor), who is known to me to be the individual described in, and who executed the foregoing instrument, and acknowledged that he executed the same, as his free act and deed. (Signature.) (174.) Mortgage to secure a Debt, fuller Form, with Power of Sale. This Indenture, Made the day of in the year one thousand eight hundred and between {name, residence, a7id occupation of the mortgagor) party of the first part, and (name, residence, and occupation of the mortgagee) party of the second part : Whereas, the said party of the first part is justly indebted to the said party of the second part in (here describe the amount and terms of the debt, or note, or bond). Now this Indenture Witnesseth, That the said party of the first part, for the better securing the debt (or note, or bond) above described, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, remised, r,eleased, conveyed, and confirmed, and by these presents does grant, bargain, sell, aliene, remise, release, convey, and confirm unto the said party of the second part, and to his heirs and assigns forever, all (here describe the premises as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also all the estate,, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof with the appurtenances: To have and to hold the above granted, bargained^ and described premises, with the appurtenances, unto the said party of the second part, and his heirs and assigns, to his and their own proper use, benefit, and behoof forever. Provided Always, and these presents are upon this express condition, that if the said party of the first part, or his heirs, executors, or administrators, shall well and truly pay to the said party of the second part, or his heirs, executors, administrators, or assigns, the above-described debt (or note, or ■bond) according to terms and tenor thereof, then this deed (and also said debt. 558 MORTGAGES OF LAND. or note, or bond) shall be wholly discharged and void ; and otherwise shall remain in full force and effect. And if default shall be made in the payment of the said sum of money above mentioned, or the interest that may grow due thereon, or of any part thereof, that then and from thenceforth it shall be lawful for the said party of the second part, or his executors, administrators, and assigns, to enter into and upon all and singular the premises hereby granted, or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said party of the first part, or his heirs, executors, administrators, or assigns, therein, at public auction, according to the act in such case made and provided. And as the attor- ney of the said party of the first part, for that purpose by these presents duly authorized, constituted, and appointed, to make and deliver to the pur- chaser or purchasers thereof, a good and sufficient deed or deeds of convey- ance in the law for the same, in fee-simple, and out of the money arising from such sale, to retain the principal and interest which shall then be due on the said debt {or note, or bond) together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the purchase-money (if any there shall be) unto the said party of the first part, or his heirs, executors, administrators, or assigns ; which sale, so to be made, shall forever be a perpetual bar, both in law and equity, against the said party of the first part, or his heirs and assigns, and all other persons claim- ing or to claim the premises or any part thereof, by, from, or under him, them, or either of them. In Witness Whereof, The parties to these presents have hereunto set their hands and seals the day and year first above written. {Signature of mortgagor.) {Seal.) {Signature of mortgagee^ {Seal^ Sealed and Delivered in the Presence of State of County of On the day of in the year one thousand eight hundred and before me personally came {name of both par- ties) who are known to me to be the individuals described in, and who exe- cuted the foregoing instrument, and acknowledged that they executed the same. {Signature^ (176.) Deed Poll of Mortgage, with Power to Sell, and Insurance Clause, and Release of Dower and Homestead. Know all Men by these Presents, That I {name, residence, and occu- pation of mortgagor) in consideration of to me paid by {name, residence, and occupation of mortgagee) the receipt whereof is hereby acknowledged, do hereby give, grant, bargain, sell, and convey unto the said FORMS OF MORTGAGES, ETC. 550 {name of mortgagee) all that lot or parcel of land, with all the buildings thereon standing, situated in the town (or city) of County of State of and bounded and described as follows : that is to say {here describe the premises as directed in Form 107). To Have and to Hold the afore-granted premises, with the privileges, easements, and appurtenances thereto belonging, to the said grantee, and to his heirs and assigns, to their use forever. And I, the said grantor, for myself and my heirs, executors, and adminis- trators, do covenant with the said grantee, and his heirs and assigns, that I am lawfully seized in fee of the afore-granted premises ; that they are free from all incumbrances {if any incumbrance exists, say '■'■except as follows,'" and describe the incujnbrance,) that I have good right. to sell and convey the same to the said grantee, and his heirs and assigns as aforesaid ; and that I will, and ray heirs, executors, and administrators shall warrant and defend the same to the said grantee, and his heirs and assigns forever, against the lawful claims of all persons. Provided, Nevertheless, That if the said grantor, or his heirs, execu- tors, or administrators, shall pay unto the said grantee, or his executors, administrators, or assigns, the sum of dollars^j^j in days {or months) from the day of the date hereof, with interest on said sum at the rate of per centum per annum, payable {semi-annually) and until such payment keep the buildings standing on the land aforesaid insured against fire, in a sum not less than dollars, for the benefit of said mortgagee, and payable to him in case of loss, at some insurance office approved by said mortgagee ; or in any default thereof, shall on demand pay to said mortgagee all such sums of money as the said mortgagee shall reasonably pay for such insurance, with interest, , and also pay all taxes levied or assessed upon the said premises, then this deed, as also {a certaiii bond or) a certain promissory note, bearing even date with these presents, signed by the said mortgagor, whereby for value received he promises to pay the said mortgagee or his order, the said sum and interest, at the time aforesaid, shall both be absolutely void to all intents and purposes. But if default shall be made in the payment of the money above men- tioned, or the interest that may grow due thereon, or of any part thereof, then it shall be lawful for the said grantee, or his executors, administrators, or assigns to sell and dispose of all and singular the premises hereby granted or intended to be granted, and all benefit and equity of redemption of the said {name of the mortgagor) the grantor, his heirs, executors, administrators, or assigns therein, at public auction ; such sale to be on or near the prem- ises hereby granted ; first giving notice of the time and place of sale, by publishing the same once each week, for three successive weeks, in {name of the newspaper) a newspaper printed in the county of aforesaid ; and in his or their own names, or as the attorney of the said {name of mort- gagor) the grantor, for that purpose by these presents duly authorized, con- 56o MORTGAGES OF LAND. stituted and appointed, to make and deliver to the purchaser or purchasers thereof, a good and sufficient deed or deeds of conveyance for the same in fee-simple ; and out of the money arising from such sale, to retain the said sum of dollars, or the part thereof remaining unpaid, and also the interest then due on the same, together with the costs and charges of advertising and selling the same premises ; rendering the surplus of the purchase-money, if any there be, over and above said sum and interest as .aforesaid, together with a true and particular account of said sale and charges, to the said (name of the mortgagor) the grantor, his heirs, executors, administrators, or assigns ; which sale, so to be made, shall forever be a perpetual bar, both in law and equity, against the said {name of the mort- gagor) the grantor, and his heirs and assigns, and all other persons claiming or to claim the premises, or any part thereof, by, from, or under him, them, or any of them. And Provided Also, that until some breach of the condition of this deed, the grantee shall have no right to enter and take possession of the premises, and hold the same. In Witness Whereof, We the said {naine of viorigagor) and {name of his wife) wife of the said {name of mortgagor) in token of her release of all right and title of or to both dower and homestead in the granted premises, have hereunto set our hands and seals this day of in the year of our Lord eighteen hundred and {Signature of mortgagor^ {Seal.) {Signature of wife of mortgagor.) {Seal.) Executed and Delivered in Presence of SS. 1 8 Then personally appeared the above-named and acknowledged the above instrument to be free act and deed, before ' me. Justice of the Peace. (I've.) Mortgage by Indenture, with Power of Sale and Interest and Insurance Clause, to secure a Bond. This Indenture, Made the day of in the year one thousand eight hundred and between {natne, residence, and occupation of the mortgagor)'p3.rij of the first part, and {name, residence, and occupation of the mortgagee') party of the second part : Whereas, The said party of the first part is justly indebted to the said party of the second part, in the sum of {amount of debt due on the bond) dol- lars liwful money of the United States, secured to be paid by his certain bond or obligation bearing even date with these presents, in the penal sum of {amount of penalty) lawful money as aforesaid, conditioned for the payment of the said first-mentioned sum of {amount of debt due on the bond) lawful FORMS OF MORTGAGES, ETC. 561 money as aforesaid, to the said party of tlie second part, or his executors, administrators, or assigns, on the day of which will be in the year one thousand eight hundred and and interest thereon to be computed from at and after the rate of per cent, per annum, and to be paid {here set forth the time and terms of the payment). And it is Thereby Expressly Agreed, That should any deftult be made in the payment of the said interest, or of any part thereof, on any day whereon the same is made payable, as above expressed, and should the same remain unpaid and in arrear for the space of days, then and from thenceforth, that is to say, after the lapse of the said days, the aforesaid principal sum oi.{aiitozmt of the debt) \\\ih. all arrearage of interest thereon, shall, at the option of the said party of the second part, or his executors, administrators, or assigns, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired, anything thereinbefore contained to the contrary thereof in anywise notwithstanding : As by the said bond or obligation, and the condition thereof, reference being thereunto had, may more fully appear. Now this indenture witness- eth, that the said party of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged', has granted, bargained, sold, aliened, released, conveyed, and confirmed, ami by these presents does grant, bargain, sell, aliene, release, convey, and con- firm unto the said party of the second part, and to his heirs and assigns for- ever, all {here describe carefully, the land or premises granted, as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof; and also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof with the appurtenances : to have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, his heirs and assigns, to his and their own proper use, benefit, and behoof forever : Provided Always, and these presents are upon this express condition, that if the said party of the first part, his heirs, executors, or administrators, shall well and truly pay unto the said party of the second part, his executors, administrators, or assigns, the said sum of money mentioned in the condi- tion of the said bond or obligation, and the interest thereon, at the time and 36 562 MORTGAGES OF LAND. in the manner mentioned in the said condition according to the true intent and meaning thereof, that then these presents, and the estate hereby granted, shall cease, determine, and be void. And the said {name of the mortgagor) for himself and his. heirs, executors, and administrators, does covenant and agree to pay unto the said party of the second part, or his executors, admin- istrators, or assigns, the said sum of money and interest as mentioned above and expressed in the condition of the said bond. And if default shall be made in the payment of the said sum of money above mentioned, or the interest that may grow due thereon, or of any part thereof, that then and from thenceforth it shall be lawful for the said party of the second part, or his executors, administrators, and assigns, to enter into and upon all and singular the premises hereby granted or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of- the said party of the first part, or his heirs, executors, administrators, or assigns, therein, at public auction, according to law. And as the attorney of the said party of the first part, for that purpose by these presents duly authorized, constituted, and appointed, to make and deliver to the purchaser or purchasers thereof, a good and sufficient deed or deeds of conveyance in the law for the same, in fee-simple, and out of the money arising from such sale, to retain the principal and interest which shall then be due on the said bond or obli- gation, together with the costs and charges .of advertisement and sale of the said premises, rendering the overplus of the purchase-money (if any there shall be) unto the said party of the first part, his heirs, executors, adminis- trators, or assigns ; which sale, so to be made, shall forever be a perpetual bar, both in law and equity, against the said party of the first part, and his heirs afld assigns, and all other persons claiming or to claim the premises or any part thereof, by, from, or under him or them, or either of them. And it is Expressly Agreed by and between the parties to these pres- ents, that the said party of the first part shall and will keep the buildings erected and to be erected upon the lands above conveyed, insured against loss and damage by fire, by insurers approved by the said party of the second part, and in an amount approved by the said party of the second part, and assign the policy and certificates thereof to the said party of the second part ; and in default thereof, it shall be lawful for the said party of the second part to effect such insurance, and the premium and premiums paid for effecting the same shall be a lien on the said mortgaged premises, added to the amount of the said bond or obligation, and secured by these presents, and pa5'able on demand with interest at the rate of per cent, per annum. In Witness "Whereof, the parties to these presents have hereunto inter- changeably set their hands and seals the day and year first above written. {Signature of mortgagor.) {Seal.) {Signature of mortgagee.) {Seal.) Sealed and Delivered in the Presence of FORMS OF MORTGAGES, ETC. 563 State of ■ss. County. On the day of in the year one thousand eight hundred and before me personally came the individuals described in, and who executed the foregoing instrument, and acknowledged that they executed the same as their free act and deed. {Signature.) (177.) Mortgage to Executors, -with Power cf Sale, This Indenture, Made the day of in the year one thousand eight hundred and between {name, resi- dence, and occupation of the viortgagor) party of the first part, and {name and residence of the mortgagee) executor cf the last will and testament of {name and residence of the testator) deceased, of the second part; whereas, the said party of the first part is justly indebted to the said party of the second part in the sum of lawful money of the United States of America, secured to be paid by a certain bond or obligation bearing even date with these presents, in the penal sum of lawful money as afore- said, conditioned for the payment of the ^aid first-mentioned sum {state the terms of the payment, and if the bond was made to the testator, state that) as by the said bond or obligation and the condition thereof, reference being thereunto had, may more fully appear. How this Indenture "Witnessetli, That the said party of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation with interest thereon, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, released, conveyed, and confirmed, and by these presents does grant, bargain, sell, aliene, release, convey, and confirm, unto the said party of the second ■ part, and, his successors and assigns forever, all {here describe carefnlly the land or premises granted, as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof: and also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof with the appurtenances. To have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, his successors and assigns, to their only proper use, benefit, and behoof forever. Provided always, and these presents are upon this 564 MORTGAGES OF LAND. express condition, that if the said party of the first part, or hii \vS.\%, executors, or administrators, shall well and truly pay unto the said party cf the second part, or his successors or assigns, the said sum of money mentioned in the condition of the said bond or obligation, and the interest thereon at the time, and in the manner mentioned in the said condition, according to the true intent and meaning thereof, that then these presents, and the estate hereby granted, shall cease, determine, and be null and void. And the said party of the first part, for himself and his heirs, executors, and administrators, does covenant and agree to pay unto the said party of the second part, his successors or assigns, the said sum of money and interest, as mentioned above, and expressed in the condition of the said bond. And if default shall be made in the payment of the said sum of money above mentioned, or the interest that may grow due thereon, or of any part thereof, that then and from thenceforth it shall be lawful for the said party of the second part, his successors and assigns, to enter into and upon all and singular the premises hereby granted, or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said party of the first part, or his heirs, executors, administrators, or assigns therein, at public auction, according to law. And as the attorney or attorneys of the said party of the first part, for that purpose by these pres- ents duly authorized, constituted, and appointed, to make and deliver to the purchaser or purchasers thereof a good and suificient deed or deeds of con- veyance in the law for the same, in fee-simple, and out cf the money arising from such sale, to retain the principal and interest which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the purchase-money (if any there shall be) unto the said party of the first part, his heirs, executors, administrators, or assigns ; which sale, so to be made, shall forever be a perpetual bar, both in law and equity, against the said party of the first part, his heirs and assigns, and all other persons claiming or to claim the premises, or any part thereof, by, from, or under him, them, or any of them. In. "Witness Whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written. (Signatures) (Seals) Signed, Sealed, and Delivered in Presence of State of ) |- ss. County. ) On the day of in the year one thousand eight hundred and before me personally came the individuals described in, and who executed the foregoing instrument, and acknowledged that they executed the same as their free act and deed. (Signature) FORMS OF MORTGAGES, ETC. 565 (178.) Mortgage of a Lease. This Indenture, Made the day of in the year one thousand eight hundred and between {name, residence, and occu- pation of mortgagor) party of the first part, and {name, residence, and occupation of mortgagee) party of the second part : Whereas, {name, resi- dence, and occupation of the lessor of the lease to be mortgaged) did, by a certain indenture of lease, bearing date the day of in the year one thousand eight hundred and demise, lease, and to farm let, unto the said party of the first part, and to his executors, adminis- trators, and assigns, all and singular the premises hereinafter mentioned and described, together with their appurtenances : To have and to hold the same unto the said party of the first part, and to his executors, administrators, and assigns, for and during and until the full end and term of years, from the day of and fully to be complete and ended, yielding and paying therefor unto the said {name of the lessor) and to his heirs, executors, administrators, or assigns, the yearly rent or sum of {state the rent, and the times, or terms of payments). And Whereas, The said party of the first part is justly indebted to the said party of the second part, in the sum of dollars, lawful money of the United States of America, secured to be paid by his certain bond or obhgation bearing even date with these presents, in the penal sum of dollars, lawful money as aforesaid, conditioned for the payment of the said first-mentioned sum of (Jtere give the amount of the debt to be paid) as by the said bond or obligation and the condition thereof, reference being there- unto had, may more fully appear. Now this Indenture Witneaseth, That the said party of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, accord- ing to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar, to him in hand paid, by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, assigned, transferred, and set over, and by these presents does grant, bargain, sell, assign, transfer, and set over unto the said party of the second part, the estate or premises leased and transferred by said indenture of lease, that is to say {here describe the premises in the same mamier in which they are described in the lease), together with all and singular the edifices, buildings, rights, members, privileges, and -appurtenances thereunto belong- ing, or in anywise appertaining ; and also all the estate, right, title, interest, term of years yet to come and unexpired, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the said demised premises, and every part and parcel thereof, with the appurtenances ; and also the said indenture of lease, and every clause, article, and condition therein expressed and contained. 566 MORTGAGES OF LAND. To Have and to Hold the said indenture of lease, and other hereby granted premises, unto the said party of the second part, his executors, administrators, and assigns, to his and their only proper use, benefit, and behoof, for and during all the rest, residue, and remainder of the said term of years yet to come and unexpired ; subject, nevertheless, to the rents, cove- nants, conditions, and provisions in the said indenture of lease mentioned. Provided Always, And these presents are upon this express condi- tion, that if the said party of the first part shall well and truly pay unto the said party of the second part the said sum of money mentioned in the con- dition of the said bond or obligation, and the interest thereon, at the time and in the manner mentioned in the said condition, according to the true intent and meaning thereof, that then and from thenceforth these presents, and the estate hereby granted, shall cease, determine, and be utterly null and void, anything hereinbefore contained to the contrary in anyv^ise notwith- standing. And the said party of the first part does hereby covenant, grant, promise, and agree to and with the said party of the second part, that he shall well and truly pay unto the said party of the second part the said sum of money mentioned in the condition of the said bond or obligation, and the interest thereon, according to the condition of the said bond or obhga- tion. And that the said premises hereby conveyed now are free and clear of all incumbrances whatsoever, and that the said party of the first part has good right and lawful authority to convey the same in manner and form hereby conveyed. And if default shall be made in the payment of the said sum of money above mentioned, or in the interest which shall accrue thereon, or of any part of either, that then and from thenceforth it shall be lawful for the said party of the second part, and his assigns, to sell, transfer, and set over all the rest, residue, and remainder of the said term of years then yet to come, and all other the right, title, and interest of the said party of the first part, of, in, and to the same, at public auction, according to the act in such case made and provided : and as the attorney of the said party of the first part, for that purpose by these presents duly authorized, constituted, and appointed, to make, seal, execute, and deliver to the purchaser or purchasers thereof, a good and sufficient assignment, transfer, or other conveyance in the law, for the same premises, vi'ith the appurtenances ; and out of the money arising from such sale, to retain the principal and interest which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the same premises, rendering the overplus of the purchase-money (if any there shall be) unto the said party of the first part, or his assigns ; which sale, so to be made, shall be a perpetual bar, both in law and equity, against the said party of the first part, and against all persons claiming or to claim the premises, or any part thereof, by, from, ot under him or them, or any of them. In Witness "Whereof, The said party of the first part to these presents has hereunto set his hand and seal the dayand year first above written, {Signature) {Seal.) Signed, Sealed, and Delivered in the Presence of FORMS OF MORTGAGES, ETC. 567 State of '^ >-ss. County of ) On the day of in the year one thousand eight hundred and before me personally came who is known to me to be tlie individual described in, and who executed the fore- going instrument, and acknowledged that he executed the same as his free act and deed. (Signature^ (179.) Mortgagee's Deed, under a Power of Sale. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and between (name and occupation of the mortgagee) of the County of and State of party of the first part, zudj^name and occupation of the grantee) of the County of and State of of the second part. Witnesseth, That whereas {name and occupation of the owner and mortgagor who gave to the mortgagee the power now exercised) of the County of and State of did, by a certain deed, dated the day of A.D. 18 , which deed is recorded in tlie Recorder's office of the County of in the State of on the day of A.D. 18 , in book of at page , grant, sell, and convey to the s.iid party of the first part all the premises hereinafter described, to secure the payment of a certain debt (or Jioie, or bond) in said deed particularly mentioned, and upon certain terms in said deed particularly declared; and whereas default hath been made in the payment of said debt {note or bond), the s.nid premises were, by said party of the first part, duly advertised for public sale at the door . of the court-house in the County of and State of on the day of A.D. 18 , in the manner prescribed by said deed, and were, upon the day and year and at the place last mentioned aforesaid, in pursuance of said notice, sold at public sale, and at said sale the said party of the second part was the highest and best bidder therefor, and bid for the tract first hereinafter named, the sum of dollars. Now, therefore, These presents witness, that the said party of the first part, in pursuance of the jjower and authority in him vested in and by the said deed, and in consideration of the sum of dollars, to the said party of the first part paid by the -said party of the second part, the receipt whereof is hereby acknowledged, hath released and quitclaimed, and doth hereby convey, remise, release, and quitclaim to the said parly of the second part, his heirs and assigns forever, all the right, title, and interest, as well in law as in equity, which the said party of the first part hath acquired by virtue of the deed above mentioned, of, in, and to all t/.at certain 568 MORTGAGES OF LAND. tract , piece , or parcel of land situated in the County of and State of and described as follows, to wit, {Jure describe the premises as directed in Form 107). Together witli all and singular the tenements, hereditaments, and appur- tenances thereunto belonging or in anywise appertaining, and the reversions, remainders, rents, issues, and profits thereof ; and also all the estate, right, title, interest, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and any and every part thereof, with the appurtenances, which the said party of the first part acquired by virtue of said deed : To Have and to Hold the aforesaid right, title, and interest of the said party of the first part, unto the said party of the second part, his heirs and assigns forever, as full and absolutely as the said party of the first part can, by virtue of the power and authority in him by said deed vested, con- vey the same. In Witness "Whereof, The party of the first part hath hereto set his hand and seal the day and year first above written. {Signature of seller^ {Seal) Signed, Sealed, and Delivered in Presence of State of ) y ss. County.) On the day of eighteen hundred and , before me of the County of in the State of appeared who is personally known to me to be the real person whose name is subscribed to the foregoing instrument of writing, as having executed the same, and then acknowledged the execution thereof as his free act and deed, for the uses and purposes herein mentioned. {Signature) (180.) Mortgage Deed, to Secure a Bond with Warrant, in use in Pennsylvania. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between {name, residence, and occiipatio7i of the debtor who is obligor of the Bond) of the first part, and {name, residence, and occupation of the creditor who is the obligee of the Bond) of the other part, witnesseth, that Whereas, the said in and by obliga- tion or writing obligatory under hand and seal duly executed, bearing even date herewith, stand bound unto the said in the sum of lawful money of the United States of America, conditioned for the payment of the just sum of lawful money as aforesaid, in together with interest thereon, payable at the rate of six per cent, per annum, FORMS OF MORTGAGES, ETC. jgg until such time as a higher rate becomes lawful, and immediately thereafter at the highest rate, not exceeding per cent., legally chargeable. Together with all taxes and charges in nature thereof, that maybe laid or levied upon the said obligation, or this indenture of mortgage, or the principal or inter- est moneys thereby secured, immediately upon their assessment, without any fraud or further delay. Provided, However, and it is hereby expressly agreed, that if at any time default shall be made in the payment of interest as aforesaid, for the space of days after any payment thereof shall fall due, or in the payment of any tax or charge as afore- said, for the space of days after notice in writing of its assessment shall be left upon the premises hereinafter described, then and in such case the whole principal debt aforesaid shall, at the option of the said obligee executors, administrators, or assigns, become due and payable immediately ; and payment of said principal debt, and all interest thereon, may be enforced and recovered at once, anything therein contained to the contrary notwithstanding. And Provided Further, however, and it is hereby expressly agreed, that if at any time thereafter, by reason of any default in payment, either of said principal sum at its maturity, or of said interest or of taxes and charges, within the time specified, a writ of fieri facias is prop- erly issued upon the judgment obtained upon said obligation, or by virtue of said warrant of attorney, or a writ of scire facias is properly issued upon this indenture of mortgage, an attorney's commission for collection, viz.: per cent., shall be payable, and .shall be recovered in addition to all principal, interest, and taxes then due, besides cost of suit, as in and by the said recited obligation and the condition thereof, relation being thereunto had, may more fully and at large appear. Now this Indenture Witnesseth, that the said as well for and in consideration of the aforesaid debt or principal sum of and for the better securing the payment of the same, with interest as afore- said, unto the said executors, administrators, and assigns, in discharge of the said recited obligation, as for and in consideration of the further sura of one dollar unto in hand well and truly paid by the said at and before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, granted, bargained, sold, aliened, enfeoffed, released, and confirmed, and by these presents grant, bargain, sell, ahene, enfeoff, release, and confirm unto the said heirs and assigns, {here describe the land or premises granted, substantially as in Form 107). Together with all and singular the ways, waters, water-courses, rights, liberties, privileges, improvements, hereditaments, and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and the reversions and remainders, rents, issues, and profits thereof. To Have and to Hold the said hereditaments and prem- 570 MORTGAGES OF LAND. Tses hereby granted, or mentioned and intended so to be, with the appurte- nances, unto the said heirs and assigns, to and for the only proper use and behoof of the said heirs and assigns forever. Provided Always, nevertheless, that if the said {name of the creditor and obligor) lieirs, executors, administrators, or assigns, do and shall well and truly pay, or cause to be paid, unto the said executors, administrators, or assigns, the aforesaid debt or principal sum of on the day and time hereinbefore mentioned and appointed for payment of the same, together with interest and taxes as aforesaid, without any fraud or further delay, and without any deduction, defalcation, or abatement to be made of anything, for or in respect of any taxes, charges, or assessments whatsoever, that then, and from thenceforth, as well this present indenture, and the estate hereby granted, as the said recited obligation shall cease, determine, and become void, anything here- inbefore contained to the contrary thereof in anywise notwithstanding. And Provided, Also, that it shall and may be lawful for the said executors, administrators, or assigns, when and as soon as the principal debt or sum hereby secured shall become due and payable as aforesaid, to wit: on the day of Anno Domini one thousand eight hundred and or in case default shall be made for tlie space of days in the payment of interest on the said principal sum, after any payment thereof shall f jU due, or in the payment of any tax or charge as aforesaid, for the space of days after notice in writing of its assessment shall be left upon the above described premises, to sue out forthwith a writ or writs of scire facias upon this indenture of mortgage and to proceed tliereon to judgment and execution, for the recovery of the whole of said principal debt, and all interest and taxes due thereon, together witli an attorney's commission for collection, viz., percent., besides costs of suit, without further stay, any law, usage, or custom to the contrary notwithstanding. In Witness Whereof, The said parties to these presents have hereunto interchangeably set their hands and seals. Dated the day and year first above written. [Seals) Sealed and Delivered in the Presence of us, On the day of Anno Domini i8 , before me the above named personally appeared and in due form of law acknowledged the above Indenture of Morto-ao-e to be act and deed, and desired the same might be recorded as such. Witness my hand and oiBcial seal the day and year aforesaid. (Signature.) (Seal.) FORMS OF MORTGAGES, ETC. 571 (181.) Bond with "Warrant of Attorney, Referred to in the pre- ceding Form 180. Know all Men by these Presents, That {name, residence, and occupa- tion of the debtor) (hereinafter called the obligor ) held and firmly bound unto {name, residence, and occupation of the creditor) (herein- after called the obligee ) in the sum of lawful money of the United States of America, to be paid to the said obligee certain attorney, executors, administrators, or assigns, to which payment well and tjuly to be made, do bind and oblige heirs, executors, and administrators, firmly by these presents. Sealed with seal. Dated the day of in the year of our Lord one thousand eight hundred and The Condition of this Obligation is Such, That if the above boun- den obligor , heirs, executors, or administrators, or any of them, shall and do well and truly pay, or cause to be paid, unto the above named ob- ligee , certain attorney, executors, administrators, or assigns, the just sum of lawful money as aforesaid, in together with interest thereon, payable at the rate of six per cent, per annum, until such time as a higher rate becomes lawful, and immediately there- after at the highest rate, not exceeding per cent., legally chargeable, together with all taxes, and charges in nature thereof, that may be laid op levied upon this obligation, or upon the accompanying indenture of mort- gage, or the principal or interest moneys hereby secured, immediately upon their assessment, without any fraud or further delay ; then the above obli- gation to be void, or else to be and remain in full force and virtue : Provided, however, and it is hereby expressly agreed, that if at any time default shall be made in payment of interest as aforesaid, for the space of days after any payment thereof shall fall due, or in the payment of any tax or charge, as aforesaid, for the space of days after notice in writing of its assessment shall be left upon the premises described in the accompanying indenture of mortgage, then and in such case the whole principal debt aforesaid shall, at the option of the said obligee , executors, administrators, or assigns, become due and payable immediately, and payment of said principal debt, and all interest thereon, may be enforced and recovered at once, anything herein contained to the contrary notwithstanding. And Provided Further, however, and it is hereby expressly agreed that if at any time hereafter, by reason of any default in payment, either of said principal sum at its maturity, or of said interest, or of taxes and charges, within the time specified, a writ of fieri facias is properly issued upon the judgment obtained upon this objection, or by virtue of the warrant of attorney hereto attached, or a writ of scire facias is properly 572 MORTGAGES OF LAND. issued upon the accompanying indenture of mortgage, an attorney's com- mission for collection, viz., per cent., shall be payable, and shall be recovered in addition to all principal, interest, and taxes then due, besides costs of suit. And it is hereby declared and agreed that the said debt or principal sum of is the same which, by an inden- ture of mortgage of even date herewith, made between the above-named obligor and obligee is secured upon {Signature) {Seal.) Sealed and Delivered in the Presence of us. To Attorney of the Court of Common Pleas at Philadelphia, in the County of Philadelphia, in the State of Pennsylva- nia, or to any other Attorney of the said Court, or any other Court there or elsewhere. Whereas, in and by a certain obligation bearing evert date here- with, do stand bound unto in the sum of lawful money of the United States of America, conditioned for the payment of the just sum of lawful money as aforesaid, in together with interest thereon, payable at the rate of six per cent, per annum, until such time as a higher rate becomes lawful, and immediately thereafter at the highest rate, not exceeding per cent, legally chargeable. To- gether with all taxes and charges in nature thereof that may be laid or levied Upon said obligation, or upon the accompanying indenture of mortgage, or the principal or interest moneys thereby secured, immediately upon their assessment ; it being the same debt or principal sum which, by an indenture of mortgage of even date herewith, made between the above-named obli- gor and obligee is secured upon Provided, however, and it is hereby expressly agreed, that if at any time default shall be made in payment of interest as aforesaid, for the space of days after any payment thereof shall fall due, or in the payment of any tax or charge, as aforesaid, for the space of days after notice in writing of its assessment shall be left upon the premises described in the accompanying Indenture of Mortgage, then and in such case, the whole principal debt aforesaid shall, at the option of the said obligee, executors, administrators, or assigns, become due and payable immediately, and payment of said principal debt, and all interest thereon, may be enforced and recovered at once, any- thing therein contained to the contrary notwithstanding. And Provided Further, however, and it is thereby expressly agreed, that if at any time thereafter, by reason of any default in payment, either of said principal sum at its maturity, or of said interest or of taxes and charges, within the time specified, a writ of fieri facias is properly issued upon the judgment obtained upon said obligation, or by vir- tue of this warrant, or a writ of scire facias is properly issued upon the FORMS OF MORTGAGES, ETC. 573 accompan) iiig indenture of mortgage, an attorney's commission for collec- tion, viz., per cent, shall be payable, and shall be recovered in addition to all principal, interest, and taxes then due, besides costs of suit. These are to desire and authorize you, or any of you, to appear for heirs, executors, or administrators, in the said court or else- where, in an action of debt there or elsewhere brought, or to be brought, against heirs, executors, or administrators at the suit of the said obligee , executors, administrators, or assigns, on the said obligation, as of anytime present, or any other subsequent term or time else- where to be held, and confess judgment thereupon against heirs, executors, or administrators, for the sum of lawful money of the United States of America, debt, besides costs of suit, and an attorney's commission of per cent, in case payment has to be. en- forced by process of law, as aforesaid, by noti sum informatus. Nihil dicit, or otherwise, as to you shall seem meet ; and for your, or any of your so doing, this shall be your sufficient warrant. And do hereby, for heirs, executors, and administrators, remise, release, and forever quitclaim unto the said obligee , certain attorney, executors, administrators, and assigns, all and all manner of error and errors, misprisions, misentries, defects, and imperfections whatever, in the entering of the said judgment, or any process or proceedings thereon or thereto, or in anywise touching or concerning the same. In Witness Whereof, have set hand and seal this day of in the year of our Lord one thousand eight hundred and {Signatures^ (Seals.) Sealed and Delivered in the Presentee of us, (182.) Mortgage Deed in use in Maryland. This Iffiortgage, Made this day of in the year one thousand eight hundred and by (name, residence, and occupation of the grantor) of County, in the State of Maryland, Witnesseth : Whereas, The said (name of the mortgagor, with his occupation and residence) has given to (iiame, residence, and occtipation of the mortgaged) his promissory note of hand (or bond) (here describe the note or bond or simple obligation to sectire which this mortgage is given, bj date, amount, time of payment, and other terms, if there are any). Now this Mortgage Witnesseth, That in consideration of the prem- ises, and of the sum of one dollar, the said do grant unto the said in fee-simple, all that lot, tract, parcel, or parcels of land situate in the County and State aforesaid (Jiere describe with care the land or premises mortgaged, as directed in Form 107). 5 74 MOR TGA GES OF LA ND. Togetier with the buildings and improvements thereupon, and the rights, ways, waters, privileges, appurtenances, and advantages thereto belonging, or in anywise appertaining. Provided, That if the said executors, administrators, or assigns, shall well and truly pay to the said the said sum of •on or before the day of one thousand eight hundred and together with the legal interest thereon annually, and shall per- form all the covenants herein on part to be performed, then tliis mortgage shall be void. And the said {name of the mortgagor) do covenant and promise to pay to the said on the day of one thousand eight hundred and the said sum of together with the legal interest thereon annually. And the said do hereby further covenant that in case of any default being made in any condition of this mortgage, then the whole mortgage debt hereby intended to be secured shall be deemed due and demandable. And the said do further covenant to insure, and, pending the existence of this mortgage, to keep insured, the im- provements on the hereby mortgaged ground, to the amount of at least dollars, and to cause the policy to be effected thereon to be so framed or indorsed as, in case of fire, to inure to the benefit of the said , representatives, or assigns, to the extent of lien or claim hereunder. Witness, hand and seal the day and year first above written. Test: (Names of the witnesses.) {Signatures.) {Seals.) State of Maryland, ) J- To WIT. ; Harford County, ) I Hereby Certify, That on this day of in the year one thousand eight hundred and .before the sub- scriber, a Justice of the Peace of the State of Maryland, in and for Harford County, aforesaid, personally appeared and acknowledged the foregoing mortgage to be act; and now, at the same time, before me, personally appeared also the within named mortgagee and made oath on the Holy Evangelists of Almighty God that the consideration set forth in the foregoing mortgage is true and bo7td fide, as therein stated. FORMS OF MORTGAGES, ETC. 575 An Assignment of Mortgage. I hereby assiga the above or within mortgage to (the assignee). Witness my hand and seal, this of {Signatttre.) (Seal.) Release on Satisfaction of a Mortgage. I hereby release the above (or within) mortgage. ■Witness my hand and seal, this day of (Signature) (Seal.) (183.) Mortgage Deed to Secure a Bond, in use in South Carolina. The State of South Carolina. To all wlioni these Presents may concern, I (or we) (name, residence, and occupation of grantor or grantors), send greeting : Whereas, the said in and by certain bond or obligation bearing date the stand firmly held and bound unto (name of grantee) in the penal sum of conditioned for the payment of the full and just sum of as in and by the said bond and condition thereof, reference being thereunto had, will moft fully appear. TSovT Know all Men, That the said in consideration of the said debt and sum of money aforesaid, and for the better securing the payment thereof to the said according to the condition of the said bond , and also in consideration of the further sum of three dollars to the said in hand well and truly paid by the said at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, and released, and by these presents do grant, bargain, sell, and release unto the s'aid (describe carefully the land and premises granted, substantially as directed in Form 107.) Together with all and singular the rights, members, hereditaments, and appurtenances to the said premises belonging, or in anywise incident 01 appertaining. To Have and to Hold all and singular the said premises unto the said heirs and assigns forever. And do hereby bind heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto the said heirs and assigns, from and against heirs, executors, administrators, and assigns, lawfully claiming, or to claim the same, or any part thereof. And it is agreed, by and between the said parties, that the said mortgagor, heirs, executors, or administrators, shall and will forthwith insure the house and buildings on said lot, and keep the same insured, from loss or 576 MORTGAGES OF LAND. damage by fire, and assign the policy of insurance to the said executors, administrators, or assigns ; and in case he or they shall at any time neglect or fail so to do, then the said mortgagee, execu- tors, administrators, or assigns, may cause the same to be insured in their own name, and reimburse themselves for the premium and expense of such insurance under the mortgage. Provided Always, nevertheless, and it is the true intent and meaning of the parties to these presents, that if the said do and shall well and truly pay, or cause to be paid, unto the said the said debt or sum of money aforesaid, with the interest thereon, if any shall be due, according to the true intent and meaning of said bond and condition there- under written, then this deed of bargain and sale shall cease, determine, and be utterly null and void, otherwise it shall remain in full force and vigor. And it is agreed, by and between the said parties, that to hold and enjoy the said premises until default of payment shall be made. Witness hand and seal this day of , in the year of our Lord one thousand eight hundred and and in the year of the sovereignty and independence of the United States of America. [Signatures^ (Seals.) Signed, Sealed, and Delivered in the Presence of. State of South Carolina, '\ Vss. County. ) Personally appeared before me, and made oath, that saw the within named sign, seal, and as act and deed, deliver the within written deed : and that with witnessed the execution thereof. Sworn to before me this day of l8 {Signature^ State of South Carolina, ) > Renunciation of Dower. County. ) I, do hereby certify unto all whom it may concern, that wife of the within named did this day appear before me, and upon being privately and separately examined by me, did declare that she does freely, voluntarily, and without any compulsion, dread, or fear of any person or persons whomsoever, renounce, release, and forever relinquish unto the within named heirs and assigns, all her interest and estate, and also all her right and claim of dower, of, in, or to all and singular the premises within mentioned and released. Given under my hand and seal, this day of Anno Domini i8 (Signature^ FORMS OF MORTGAGES, ETC. 577 (184.) Mortgage Deed with Power of Sale, to Secure Debt, in . use in Georgia. Georgia, \ County. \ This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between (name and occupation of grantor or grantors) of the County of of the one part, and {name and occupation of grantee or grantees) oi the County of of the other part : Witnesseth, That the said for and in consideration of the sum of in hand paid, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, ha granted, bargained, sold, aliened, conveyed, and coniirmed, and by these presents do grant, bargain, sell, aliene, convey, and confirm unto the said heirs and assigns, all {here describe the land or premises granted, substan- tially as directed in Form 107). To Have and to Hold the said with all and singular the rights, members, and appurtenances thereunto appertaining, to the only proper use, beneiit, and behoof of the said heirs, executors, admin- istrators, and assigns, in fee-simple ; and the said the said bargained, unto the said heirs, executors, administrators, and assigns, against the said heirs, executors, and administrators, and against all and every other person or persons, shall and will warrant and forever defend by virtue of these presents. Th.is Conveyance is intended to operate as provided by an Act of the General Assembly of said State, approved December 12, 1871, entitled " An Act to provide for sales of property in this State to secure loans and other debts,'' and the Act of 1872, amendatory thereof; the debt hereby secured being and the said hereby agrees that if the debt to secure which this deed is made is not promptly paid at maturity according to the tenor and effect of the said made at the execution of this deed, then the said may, and by these presents authorized to sell at public outcry to the highest bidder, for cash, all of said property, or a suffi- ciency thereof to pay said indebtedness with the interest thereon and the costs of the proceeding, after advertising the time, place, and terms of sale in newspaper for ' days. And the said may make to the purchaser or purchasers of said property good and sufficient titles in fee-simple to the same, thereby divesting out of the said all right, title, and equity that may have in and to said property, and vesting the same in the purchaser or purchasers aforesaid. The proceeds of said sale are to be applied first to the payment of the said debt and interest and the expenses of this proceeding, the remainder, if any, paid to In "Witness Whereof, The said and his wife, who 37 578 MORTGAGES OF LAND. hereby consents to the execution of this deed, have hereunto set their hands and affixed their seals, and dehvered these presents, the day and year first above written. •{Signatures^) (Seals) Signed, Sealed, and Delivered in Presence of us (185.) Mortgage to Seciore a Promissory Note, in use in Kansas. Th.is Indentiire, Made this day of in the year of our Lord one thousand eight hundred and between {name and occu- pation of grantor or grantors') of in the County of {residence) and State of , of the first part, and {name, residence, and occupation of grantee or grantees) of the second part: witnesseth, that the said part of the first part, in consideration of the sum of dollars, to duly paid, the receipt of which is hereby acknowledged, ha sold, and by these presents do grant, bargain, sell, and mortgage to the said part of the second part, heirs and assigns forever, all that tract or parcel of land situate in the County of and State of Kansas, described as follows, to wit : {liere describe accurately the land or pre?nises granted, substantially as directed in Form 107), with the appurtenances, and all the estate, title, and interest of the said part of the first part therein. This grant is intended as a mortgage to secure the payment of the sum of dollars, according to the terms of certain . And this conveyance shall be void if such payment be made as is herein specified. But if default be made in said payment, or any part thereof, as provided, then this conveyance shall become absolute, and it shall be lawful for said part of the second part, executors, administrators, and assigns, at any time thereafter, to sell the premises hereby granted, or any part thereof, in the manner prescribed by law ; and out of all the moneys arising from such sale, to retain the amount then due for principal and interest, and also for statutory damages in case of protest, together with the costs and charges of making such sale, and per cent, on the amount secured by this mortgage, as a reasonable attorney's fee for fore- closure hereof, and the overplus, if any there be, shall be paid by the part making such sale, to the said heirs or assigns ; and for the said consideration, the said part of the first part hereby waive appraisement of said real estate. In Witness WTiereof, The said part of the first part ha hereunto set hand and seal the day and year last above written. {Signatures) (Seals) Signed, Sealed, and Delivered in the Presence of State of Kansas, '\ >-ss. County of ) Be it Remembered, that on this day of A.D. 18 before me, in and for said County and State, came to FORMS OF MORTGAGES, ETC. 579 me personally known to be the same person who executed the foregoing instrument, and acknowledged the execution of the same. In Witness Whereof, I have hereunto subscribed my name and affixed my official seal on the day and year last above written. (Signature.) (Seal.) (186.) Mortgage Deed in use in Missouri. Know all Men by these Presents, That (name and occupation of the grantor or mortgagor and his wife) of the County of , in the State of Missouri, ha this day, for and in consideration of the sum of dollars to the said in hand paid, by (name and occupation of mortgagee) of the County of in the State of , the receipt whereof is hereby acknowledged, granted, bargained, and sold, and by these presents do grant, bargain, and sell unto the said the following described tracts or parcels of land, situate in the County of , in the State of Missouri, that is to sa.y (here describe the premises mortgaged as directed in Form 107). To Have and to Hold the premises hereby conveyed, with all the rights, privileges, and appurtenances thereto belonging, or in anywise appertaining unto the said heirs and assigns forever, upon this express condition : Whereas, the said on the day of 18 , made, executed, and delivered to the said certain promissory note , in words and figures following, to wit : ITo'w, if the said executor , or administrator , shall pay the sum of money specified in said note, and all the interest that may be due thereon, according to the tenor and. effect of said note, then this conveyance shall be void ; otherwise, it shall remain in full force and virtue in law, and the said or executor , or administrator may proceed to sell the property hereinbefore described, or any part thereof, at public vendue, to the highest bidder, at in the County of for cash in hand, first giving days' public notice of the time, terms, and place of sale, and of the property to be sold, by advertisement ; and upon such sale, and the payment of the purchase money, shall execute and deliver a conveyance of the property so sold to the purchaser thereof ; and any state- ment of fact or recital by the said in such conveyance, in relation to the advertisement, sale, receipt of the purchase money, or execu- tion of said conveyance, shall be received as prima facie evidence of the truth thereof, and the said shall, with the proceeds of the sale aforesaid, pay, first, the expenses of this trust, and, next, whatever may be in arrear and unpaid on said note, whether of principal or interest, and the balance (if any) shall be paid over to the said or his legal repre- sentatives. In Witness Whereof, have hereunto subscribed name , and affixed seal this day of 18 (Signatures^ (Seals.) 58o MORTGAGES OF LAND. State of Missouri, County of Be it Bemembered, That and , who personally known to the undersigned, a within and for said county, to be the person whose name subscribed to the foregoing deed, as part thereto, this day appeared before me and severally acknowledged that executed and delivered the same as voluntary act and deed, for the uses and purposes therein mentioned. And the said being by me made acquainted with the contents of said deed, acknowledged, on an examination apart from her said husband, that she executed the same, and relinquishes her dower in the real estate therein mentioned, freely, and with- out compulsion or undue influence of her said husband. Given under my hand this day of A.D. i8 (Signatured) (187.) Short Deed of Mortgage in use in Indiana. This Indenture Witnesseth. : That I {name and occupation of grantor or grantors) of {residence) County, in the State of do hereby mortgage and warrant to {name and occjcpation of grantee or grantees) of {residence) County, in the State of the following real estate, in County, in the State of Indiana, to wit: {here describe the land or premises granted substantially as directed hi Form 107), to secure the pajrment when become due of and the mortgagor expressly agree to pay the sum of money above secured, without relief from valuation laws. In Witness Whereof, The mortgagor ha hereunto set hand and seal this day of A.D. 18 {Signatures.) {Seals.) State of Indiana, ^ [•ss. County. ) Before Me, a in and for said County, this day of , i8 , acknowledged the execution of the annexed mortgage. Witness my hand and seal, this day of ,18 {Signature.) {Seal.) (188.) Mortgage without Release of Dower or Homestead, in use in "Wisconsin. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and between {name and occupation of grantor or grantors) of the County of State of of the first part, and {name and occupation of the grantee or FORMS OF MORTGAGES, ETC. 581 grantees) of the County of and State of of tlie second part, witnesseth, that the said p?.rt of the first part, for and in consideration of the sum of dollars to in hand paid by the part of the second part, the receipt of which is hereby acknowledged, ha granted, bargained, and sold, and by these presents do grant, bargain, sell, and convey unto the said part of the second part, and to heirs and assigns forever, all the following described real estate situate, lying, and being in the County of State of and known as being (here describe with sufficient care the land or premises granted, sttbstantially as directed i7t Form 107). To Have and to Hold the above bargained premises witli the appurte- nances, unto the said part of the second part, heirs and assigns forever, Provided always, and these presents are upon this express condition, that if the said part of the first part, heirs, executors, adminis- trators, and assigns, shall well and truly pay, or cause to be paid, to the said part of tlie second part, heirs, executors, administrators, or assi"^ 3 the sum of according to the condition of ci . . - •. bearing date executed by i' j said part of the first part, to the said part of the second part, as collater '. security, then these presents and the said shall cease and be null and void. And the said do further covenant and agree, that will pay all taxes and assessments of every nature that may be assessed on said premises, previous to the day appointed in pursuance of any law of the State for sale of lands for taxes. And also will pay the sum of dollars, as Solicitor's fees, in case of foreclosure of this mortgage, by reason of the non-performance of any of the conditions hereof by said part of the first part. And in case of the non-payment of said sum, or any part thereof, at the time or times above limited for the payment .thereof, or in case of the non-payment of any taxes that may be assessed on said premises in manner aforesaid ; then, and in either case, it shall be lawful for the said part of the second part, heirs, executors, administrators, or assigns, and the said part of the first part, do hereby covenant and agree, and by these presents empower and author- ize the said part of the second part, heirs, executors, administrators, or assigns, to grant, bargain, sell, release, and convey the said premises, with the appurtenances thereunto belonging, at public auction or vendue, and on such sale to make and execute to the purchaser or purchasers, his, her, or their heirs and assigns forever, good, ample, and sufficient deeds of convey- ance in the law, pursuant to the statute in such cases made and provided ; and out of the moneys arising from such sale to retain the principal and interest which shall then be due on the said together with the costs and charges, and the said sum of dollars. Solicitor's fees, a5 aforesaid ; rendering the surplus money, if any there be, to the part of the first part, heirs, executors, administrators, or assigns, after deducting the costs of such vendue as aforesaid. 582 MORTGAGES OF LAND. In Witness Wliereof, the said part of the first part ha hereunto set hand and seal , the day and year first above written. {Signatures.) {Seals^ Signed, Sealed, and Delivered in Presence of State of ) ^ss. County of ) Be it Remembered, That on the day of i8 , personally came before me the above named to me known to be the person who executed the foregoing mortgage, and acknowledged execution thereof to be free act and deed, for the uses and purposes therein mentioned. (Signature^ (Seal.) (189.) Mortgage Deed, -with Release of Homestead and Dower, to Secure the Payment for Premises Sold, in use in Iowa. Know all Men by these Presents, That ( ^ere insert name and occupa- tion of grantor or grantors) of County and State of in consideration of the sum of dollars, in hand paid, do hereby sell and convey unto {name and occupation of grantee or grantees) of County and State of the following described real estate, situated in the County of and State of to wit : {Jiere describe carefully the land or jiremises granted, substantially as directed in Form 107), containing acres, more or less, and hereby release all right of homestead and dower interest therein, and warrant the title thereto against the lawful claim of all persons whomsoever. The above sale and conveyance is however made upon the following express conditions : That if shall pay or cause to be paid the sum of dollars, according to the tenor and effect of certain promissory note , described as follows : bearing even date herewith and payable to the order of said viith interest thereon from at the rate of per cent, per annum, payable annually, then the above sale and conveyance shall be void, but that otherwise it shall be and remain in full force and effect. And also agree that the failure to pay promptly when due any part of the moneys hereby secured, or any interest accruing thereon, according to the terms of said promissory note , or allowing any taxes assessed upon any part of the premises above described to become delinquent and remain unpaid, or permitting said premises or any part thereof to be sold for taxes, shall cause the entire principal sum hereby secured, and all interest accrued thereon, to become immediately due and payable, and the said may thereupon proceed at once to fore- close this mortgage for such entire principal sum, accrued interest and costs. And further agree in case of such foreclosure to pay a reasonable FORMS OF MORTGAGES, ETC. 583 sum as attorney's fee, to be by the court fixed and determined, for fore- closing the same, which fee shall be included in the judgment in such fore- closure case. This mortgage is given to secure the purchase money of the premises hereinbefore described, and creates a lien for purchase money upon said premises in favor of said mortgagee. Dated this day of A.D. 18 . State of Iowa, ■ ss. County, (Signatures.) {Seals.) Be it Remembered, That on this day of A.D. , before the undersigned, a within and for said County, personally appeared personally known to me to be the identical person whose name affixed to the above mortgage, as grantor thereto, and acknowledged the execution of the same to be voluntary act and deed. "Witness my hand and seaL (Signature.) {Seal.) (190.) Mortgage Deed in use in Louisiana. [This being a peculiar deed, presenting some unusual difficulties m filling up the blanks, it is thought best to give a full copy of a carefully-prepared deed, as the same was drawn and executed in accordance with the law of Louisiana.] State of Louisiana, NS.) Parish and City of New Orleans Be it Known, That on this third day of June, in the year of our Lord one thousand eight hundred and seventy and of the independence of the United States of America, the ninety-fourth. Before Me, Andrew Hero, Jr., a Notary Public in and for the Parish and City of New Orleans, State of Louisiana, duly commissioned and qualified, and in the presence of the witnesses hereinafter named and undersigned, Personally Came and Appeared, — Antonio Corbett, of this city, who declared that he is justly and truly indebted unto James Thompson, also of this city, in the sum of eight hundred dollars, borrowed money this day had : in settlement and as evidence thereof the said Antonio Corbett has made and furnished his promissory note for like sum of eight hundred dollars, drawn to the order of and indorsed by himself, dated this day, and made payable at twelve months after date, w'th interest at the rate of eight per cent, per annum, from and after maturity, if not then paid, until final payment, which said note, after having been paraphed by me, the said Notary, to identify it, herewith, was delivered to the said Thompson, who hereby acknowledges the receipt thereof. Now, in order to secure the full and punctual payment of the said note, 584 MORTGAGES OF LAND. in capital and interest, at maturity, the said Corbett moreover declared that he does by these presents specially mortgage and hypothecate in favor of the said James Thompson, his heirs and assigns, and of any and all such person or persons as may hereafter be the holder or holders of the said note, the following described property, to wit : A certain lot of ground, together with the buildings and improvements thereon, and all rights and privileges thereto belonging, situate in the Faubourg Lafayette, Fourth District of this city, in the square numbered two hundred and eighty five, which is bounded by Liberty {late Ellen), fosephine, St. Andrew (formerly Gormley's Canal), and Franklin (late Fulton Avemie) streets, and designated as lot number six on apian of the former city of Lafayette, and a sketch drawn by Hugh Grant, surveyor, under date of the I'^ih of March, 1S4S, and annexed for reference to an act passed before L, R. Kenny, late a Notary in said parish of yefferson, which said lot measures, in Ameri- can measure, twenty-seven feet front on said Liberty (late Ellen) street, by one hundred and twenty feet in depth, between parallel lines, being the savie property which said mortgagor acquired by purchase frovi the widow and heirs of Henry Mumford, by an act passed before William Shannon, a Notary in this city, 071 the 12th day of March, eighteen hundred and sixty-seven. The said property is so to remain mortgaged and hypothecated until the full and final payment of the aforesaid note in capital and interest; the said mort- gagor hereby binding himself and his heirs not to alienate, deteriorate, nor encumber the same to the prejudice of these presents, which are accepted by said mortgagee. And the said Corbett further declared that he does by these presents bind and obligates himself io cause all and singular the buildings and improvements on the lot of ground ■a.iox^ described, to be insured and kept insured against the risk of fire, by one of the insurance companies of this city, in the sura of one thousand dollars, until the full and final payment of the afore described note, and to transfer and deliver unto the said mortgagee the policy or policies of such insurance or insurances ; in default whereof, said mortgagee, and any and all holders of said note, is and are hereby authorized to cause such insurance or insurances to be made and effected at the cost, charge, and expense of the said mortgagor. But this clause shall not be construed as obligatory on such holder or holders, or as making them liable for any loss, damage, or injury which may result from the non-insurance of the said buildings. And the said mortgagor further declared that he Aoes by these presents consent, agree, and stipulate that in the event of the said note not being punctually paid at maturity, it shall be lawful for and he does hereby author- ize the said mortgagee, or any other holder or holders thereof, to cause all and singular the property hereinbefore described, and herein mortgaged, to be seized and sold under executory process (issued by any competent court) without appraisement, to the highest bidder, payable in cash ; the said mort- gagor herein expressly dispensing with all and every appraisement thereof, and by these presents waiving and renouncing the benefit of appraisement, and of all laws or parts of laws relative to the appraisement of movable or immovable effects, etc., seized and sold under executory or other legal FORMS OF MORTGAGES, ETC. 585 process, the said mortgagor herelDy confessing judgment in favor of said mortgagee, and such person or persons who may be the holder or holders of said note for the full amount thereof, capital and interest, together with all costs, charges, and expenses whatsoever. And the said mortgagor further declares that he does, by these presents, bind and ohXtgzit himself and his heirs to pay and reimburse unto said mort- gagee, and such person or persons as may be the holder or holders of said note, all such lawyer's or attorney's fees, together with all such costs, charges, and expenses as said mortgagee, or any such holder or holders, shall or may incur or pay, in the event of the non-payment of said note at maturity : said attorney's fees, however, to be fixed at five per cent, on the amount so in suit. Now, to secure the faithful performance of the foregoing obligation, and the reimbursement and payment of the said lawyer's or attorney's fees, costs, charges, and expenses aforesaid, and the reimbursement and payment of all premium or premiums as shall be paid by the said mortgagee, or any holder or holders of the aforesaid note, in causing insurance to be effected, on default of said mortgagor as aforesaid, the said mortgagor, by these presents, further specially mortgages and hypothecates the hereinbefore described property unto and in favor of said mortgagee, and all holders of said note. According to the annexed certificate of the Recorder of mortgages in and for this city and parish, of even date /lerewith, the afore described property is free from all mortgages or other incumbrances in the name of said Corbett, save the privilege for drainage, and the mortgage which he granted in favor of his vendors by his said act of purchase, to secure the payment of three hundred dollars and interest. And here the said Campbell declared, that as last holder and owner, he has received paytnent in full, at the execution hereof, of a certain promissory note for the sum of three hundred dol- lars, drawn by said Corbetl, to the order of and indorsed by himself, dated the twelfth day of March, eighteen hundred and sixty-sevett, and made payable at twelve months after date, with interest at the rate of eight per cent, per annum from date until final payment : Said note representing the amount, payment of which is secured by the above recited special mortgage : and said Campbell moreover declared that in cottsideration of the paytnent, he hereby cancels and annuls said mortgage, and authorizes and requires the Recorder of Mortgages in and for this parish to erase the inscription thereof from his books : Said note was defaced and cancelled by me. Notary, at the execution hereof. And now to these presents personally came and appeared Madam Mary Corbett, the wife, of lawful age, of the said Antonio Corbett, who, after hav- ing taken cognizance of the foregoing act, which I, the said Notary, care- fully read and explained to her, declared and said that she approves and rat- ifies the same, and that it is her wish and intention to release in favor of the said mortgagee the property herein described from the matrimonial, dotal, paraphernal, and other rights, and from any claims, mortgages, or privileges to which she is or may be entitled, whether by virtue of her marriage with her said husband ox otherwise. 586 MORTGAGES OF LAND. Whereupon. I, the said Notary, did inform the said Mrs. Corbett, apart and out of the presence and hearing of her husband, that by the laws of this State, the wife has a legal mortgage on the property of her husband : First, for the restitution of her dowry, and for the reinvestment of the dotal property sold by her husband, and which she brought in marriare, reckon- ing from the celebration of the marriage. Secondly, for the rts itut'on and reinvestment of the dotal property by her acquired since marriage, whether by succession or donation, from the day the succession was opened, or the donation perfected. Thirdly, for nuptial presents. Fourthly, for debts by her contracted with her husband. And fifthly, for the amount of her paraphernal property alienated by her, and received by her husband, or oth- erwise disposed of for his individual interest : That in making her intended renunciation she would deprive herself irrevocably and forever of all rights of reclamation against the property herein described, whether under mort- gage privilege, or otherwise. And the said Mrs. Corbett did thereupon declare unto me. Notary, that she was fully aware of and acquainted with the nature and extent of the matrimonial, dotal, paraphernal, and other rights and privileges thus secured to her by law on the property of her said husband, and that she neverthe- less did persist in her intention of renouncing, and does formally renounce, not only all the rights, claims, and privileges hereinbefore enumerated and described, but all others of any nature and kind whatever, to which she is, or maybe, entitled by any laws now or heretofore in force in the State of Louisiana. And the said Antonio Corbett being now present, aiding, and authorizing the said Mrs. Corbett \n the execution of these presents, she, the said Mrs. Corbett, did again declare that she did and does hereby make a formr.l renun- ciation and relinquishment of all her said matrimonial, dotal, paraphernal, and other rights, claims, and privileges, in favor of said mortgagee, binding herself .zxvd. her heirs at all times to sustain and acknowledge the- validity of this renunciation. Thus Done and Passed, in my office at New Orleans aforesaid, in the presence of Paul A. Roberts and George Benson, witnesses, both of this city, who hereunto sign their names with the parties, and me, the said Notary, the day and date aforesaid, said Mistress Corbett not knowing how to -write or sign lie} name, having hereto made her mark, after the same had been read and explained to her by jne, Notary. Original signed : Iter Jas. Campbell, Mary X Corbett, jnark. Ceo. Bay ley, Antonio Corbett, P. A. Winsor. (Seal.) Andrew Hero, Jr., Notary Public. A true copy of the original, on file, and of record in my office. Andrew Hero, Jr., Not. Pub, New Orleans, La., March 31, 1873. FORMS OF MORTGAGES, ETC. 587 (191.) Satisfaction of Mortgage, in use in New Jersey. State of New Jersey, •ss. County of TMs is to Certify, That a certain indenture of mortgage, bearing date the day of one thousand eight hundred and mads and executed by {name, residence, and occupation of mortgagor) to {tiame, residence, and occupation of mortgagee) to secure the payment of dollars, and in the office of the of the County of in Liber of Mortgages, page on the day of in the year one thousand eight hundred and at o'clock in the upon, has been paid and satisfied, and may be discharged of record. "Witness hand and seal the day of A.D. 18 Sealed and Delivered in Presence of State of New Jersey, (Signatures) (Seals.) }■ .ss. County of I, one of the do hereby certify that on the day of A.D. one thousand eight hundred and before me personally appeared who, I am satisfied, the grantor mentioned in, and who executed the within certificate, and to whom I first made known the contents thereof ; that thereupon acknowledged that had signed, sealed, and delivered the same as voluntary act and deed. upon a private examination, apart from her hus- band, before me, acknowledged that she had signed, sealed, and delivered the same as her voluntary act and deed, freely, without any fear, threats, or compulsion of her husband. (Signature.) (Seal.) (193.) Release of Deed of Trust, in use in Colorado. Know all Men by these Presents, That whereas (name, residence, and occupation of the mortgagor) of the County of in the State of Colorado, by his certain deed of trust, dated the day of A.D. 18 and duly recorded in the office of the County Clerk and Recorder of County, in the State of Colorado, on the day of A.D. 18 in book of said County Records, on page con- veyed to the undersigned (name and occupation of trustee in the trust deed) of the County of in the State of Colorado, as trustee certain real estate in said deed of trust described, in trust to secure to the payment of certain promissory note with interest, and all charges thereon, as in said deed of trust mentioned. 588 MORTGAGES OF LAND. And Whereas, The said lia paid and fully satisfied said note together with all interest and charges thereon, according to its tenor ; Now, Therefore, At the request of the said as aforesaid, and in consideration of the premises, and in the further consideration of the sum of one dollar, to me in hand paid by the said the receipt whereof is hereby acknowledged, I trustee as aforesaid, do hereby remise, release, and forever quitclaim unto him, the said and heirs and assigns forever, all the right, title, and interest which I have in and to the said real estate, as the trustee in said deed of trust mentioned ; and more particularly described as follows, to wit : {describe the land or premises mortgaged and now released, as they are described in the trust deed or mort- gage) situate, lying, and being in the County of and State of Colorado. To Have and to Hold the same, together with all and singular the privileges and appurtenances unto the said his heirs and assigns forever. And further, that the said trust deed is, by these presents, to be considered as fully and absolutely released, canceled, and forever discharged. Witness my hand and seal, this day of A.D. i8 [Signature) {Seal.) Signed, Sealed, and Delivered z« the Presence of State of Colorado, ^ > ss. County of ) I, in and for said county, in the State aforesaid, do hereby certify that personally known to me as the person whose name is subscribed to the annexed deed, appeared before me this day in person and acknowl- edged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. Given under my hand and seal, this day of A.D. i8 {Signature) (Seal.) (193.) Brief Release of Mortgage, in use in Kansas. In consideration of the payment of the debt named therein, I release the mortgage made by to me, which is recorded in Book of Mortgages, page of the Records of County, Kansas. Witness my hand and seal, this day of i8 State of /SS. County. ' :}' (Signature.) (Seal.) On this day of A.D. i8 before me, a in and for said County, personally came to me personally known to be the identical person whose name is affixed to the above release as FORMS OF MORTGAGES, ETC. 589 maker, and acknowledged the executioR of the same to be his voluntary act and deed. VTitness my hand and seal the day and year last above written. {Signature) {Seal.) (194.) Belease of a Trust Deed Mortgage at the Request of the Creditor, in use in "Virginia and "West Virginia. This Seed, Made this day of in the year one thousand eight hundred and between {name, residence, and occu- pation of the party of the first part in the original trust deed) of the of the first part, and {name of the party of the second part in the original trust deed) of the of the second part, and {name of the party of tha third part in the trust deed) of the of the third part. "Whereas, The said in order to secure the said the payment of the sum of did, by deed bearing date on the day of 18 recorded in the office of the Clerk of convey to the said heirs and assigns, certain estate described in the said deed as follows : {here describe the land or prem- ises m-ortgaged and now released, in the same way as in the trust deed) and the said sum of money having been fully paid to the said he the said ha requested that the estate conveyed by the said deed of trust to the said in the said property hereinbefore men- tioned and described, be now released to the said This deed, therefore, witnesseth, that for and in consideration of the prem- ises, as well as of the sum of five dollars, the said with the consent of the said signified by signing and sealing this deed, do release to the said all claim upon the said property. Witness the following signatures and seals. {Signatures) {Seals) State of Virginia. of To wit : I, for the aforesaid, in the State of Virginia, do certify that whose name signed to the within writing, bearing date on the day of 18 ha acknowledged the same before me in my aforesaid. Given under my hand this day of 18 {Signature) {Seal) (196.) Satisfaction of Mortgage, in use in Minnesota. Know all Men by these Presents, That t {or we) {name, residence, and occupation of assignee or assignees) do acknowledge full payment and satis- faction of a certain indenture of mortgage executed by to dated the day of 18 , and recorded 590 MORTGAGES OF LAND. in the ofSce of Register of Deeds for the County of State of Minnesota, on the day of i8 , in book of mort- gages, page . Said mortgage was given upon the following described real estate, situate in the County of and State of Minnesota, viz. : {describe the land or premises mortgaged and released, substantially in the same way as they are described in the mortgage). If the mortgage has been assigned, the assignee must insert the following clause in brackets. [Which said mortgage was on the day of A.D. i8 , duly assigned and transferred by the said {name of the mortgagee) to {the name of the assignee) by written assignment, which was on the day of A.D. i8 , duly recorded in said office of Register of Deeds for the said County of in book of mortgages, page {liere enumerate in a similar way any subse- quent assignments of the mortgage so as to show that it is now in the hands of the releasor?^ And do hereby authorize and require the Register of Deeds of the said County of to cancel and discharge the same of record in his office. Witness hand and seal , this day of A.D. i8 . In Presence of State of Minnesota, {Signatures^ {Seals.) . ss. County of On this day of A.D. i8 , came before me to me personally known to be the identical person described in and who executed the within satisfaction deed acknowledged that executed the same freely and voluntarily for the uses and purposes therein expressed. Notary Public, Minnesota. (196.) Assignment of Mortgage, in use in Michigan. Know all Men by these Presents, that I {name, residence, and occu- pation of assignor) of the first part, for and in consideration of the sum of lawful money of the United States of America, to in hand paid by {name, residence, and occupation of assignee) of the second part, at or before the ensealing or delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer, and set over unto the said part of the second part, a certain indenture of mortgage, bearing date the day of one thousand eight hundred and made by and between {here describe carefully the mortgage assigned, giving the names of the parties and the description of the premises mortgaged, as described in the mortgagi). And recorded in the office of the Register of Deeds of the County of , and State of Michigan, in Liber of Mortgages, at page with all and singular the premises therein mentioned and described, together with the {note, bond, or debt) or obligation therein also mentioned, and the FORMS OF MORTGAGES, ETC. 591 moneys now due, or to become due, and the interest that may hereafter grow due thereon. To Have and to Hold the same unto the part of the second part heirs and assigns forever, subject only to the proviso in the said indenture of mortgage mentioned. And do hereby authorize and appoint the said part of the second part, true and lawful attorney, irrevocable, in name, or otherwise but at proper costs and charges, to have, use, and take all lawful ways and means for the recovery of the sum or sums of money now due and owing, or hereafter to become due and owing, upon the said and mortgage ; and in case of payment, to give acquittance or other suiBcient discharge, as fully as might or could do if these presents were not made ; and do hereby for heirs, executors, and administrators, covenant, promise, and agree to and with the said part of the second part, that there is due upon the said and mortgage the sum of and that have good right and lawful authority to grant, bargain, and sell the same in manner aforesaid. Sealed and delivered the day of 18 . In Presence of State of Michigan, County of (Signatures) {Seals.) •ss. On this day of A.D. one thousand eight hundred and before me, a in and for said County, personally appeared to me known to be the same person described in and who executed the within instrument, and acknowledged the same to be free act and deed. (Signature.) (197.) Deed of Mortgage in use in. New York. TMs Indenture, Made the day of in the year one thousand eight hundred and between (name, residence, and occupation of the mortgagor) of the first part, and (iiame, residence, and occupation of the mortgagee) of the second part. Whereas, the said (name of the mortgagor) justly indebted to the said part of the second part, in the sum of lawful money of the United States, secured to be paid by certain bond or obliga- tion bearing even date with these presents, in the penal sum of lawful money as aforesaid, conditioned for the payment of the said first mentioned sum of lawful money as aforesaid, to the said part of the second part, executors, administrators, or assigns, on the day of which will be in the year one thousand eight hundred and and interest thereon to be computed from at and after the rate of per cent, per annum, to be paid . And it is thereby expressly agreed, that should 592 MOR TGA GES OF LAND. any default be made in the payment of the said interest, or of any part thereof, on any day whereon the same is made payable, as above expressed, or should any tax or assessment be hereafter imposed upon the premises hereinafter described and become due or payable, and should the said interest remain unpaid and in arrear for the space of {usually thirty) days, or such tax or assessment remain unpaid and in arrear for {usually ninety days) then and from thenceforth, that is to say, after the lapse of either one of said periods, as the case may be, the aforesaid principal sum, with all arrearage of interest thereon, shall, at the option of the said part of the second part, administrators or assigns, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired, anything thereinbefore con- tained to the contrary thereof in anywise notwithstanding. As by the said bond or obligation, and the condition thereof, reference 'being thereunto had, may more fully appear. Now this Indenture "Witnessetli, That the said part of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar to in hand paid by the said part of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, ha granted, bargained, sold, aliened, released, conveyed, and confirmed, and by these presents do grant, bargain, sell, aliene, release, convey, and confirm unto the said part of the second part, and to and assigns forever, all {Jiere insert a description of the premises mortgaged, as directed in Form 107). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging, or in anywise appertaining, and the rever- sion and reversions, remainder and remainders, rents, issues, and profits thereof. And also, all the estate, right, title, interest property, possession, claim, and demand whatsoever, as well in law as in equity, of the said part of the first part, of, in, and to the same, and every part and parcel thereof, with the appurtenances : To Have and to Hold the above granted, bargained, and described premises, with the appurtenances unto the said part of the second part, heirs and assigns, to their own proper use, benefit, and behoof forever. Provided always, and these presents are upon this express condition, that if the said part of the first part, heirs, executors, or administra- tors, shall well and truly pay unto the said part of the second part, executors, administrators, or assigns, the said sum of money mentioned in the condition of the said bond or obligation and the interest thereon, at the time and in the manner mentioned in the said condition, according to the true intent and meaning thereof, that then these presents, and the estate hereby granted shall cease, determine, and be void. FORMS OF MORTGAGES, ETC. 553 And the said heirs, executors, and administrators, do covenant and agree to pay unto the said part of the second part, execu- tors, administrators, or assigns, the said sum of money and interest as mentioned above, and expressed in the condition of the said bond. And if default shall be made in the payment of the said sum of money above mentioned, or the interest that may grow due tlwreon, or of anypart thereof, or of the taxes or assessments on the premises hereby granted, that then and from thenceforth it shall be lawful for the said part of the second part executors, administrators, and assigns, to enter into and upon ajl and singular the premises hereby granted or intended so to be, and to sell and dispose of th« same and all benefit and equity of redemption of the said part of the first part, heirs, executors, administrators, or assigns therein, at public auction, according to the act in such case made and pro- vided. And as the attorney of the said part of the first part, for that purpose by these presents duly authorized, constituted, and appointed, .to make and deliver to the purchaser or purchasers thereof, a good and suffi- cient deed or deeds of conveyance in the law for the same, in fee-simple, and out of the money arising from such sale, to retain the principal and interest which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the purchase money (if any there shall be), unto the said of the first part, heirs, executors, administrators, or assigns ; which sale, so to be made, shall forever be a perpetual bar, both In law and equity, against the said part of the first part heirs and assigns, and all other persons claiming or to claim the premises, or any part thereof, by, from, or under them, or either of them. And the said do further covenant, grant, promise, and agree, that the said part of the first part, shall and will make, execute, acknowledge, and deliver in due form of law all such further or other deeds or assurances as inay at any time hereafter be devised or required, for the more fully and effectually conveying the premises above described and hereby granted, or intended so to be, unto the said part of the second part executors, administrators, or assigns, for the purposes aforesaid, and unto all and every person or persons, corporation or corpora- tions, deriving any estate, right, title, or interest therein, under this indenture or the power of sale herein contained, and the above granted premises against the said part of the first part, and all persons claiming through them will warrant and defend. And it is expressly agreed by and between the parties to these presents, that the said part of the first part shall and will keep the buildings erected and to be erected upon the lands above conveyed, insured against loss and damage by fire, by insurers, and inan amount approved by the said part of the second part, and assign the policy and certificates thereof to the said part of the second part; and in default thereof, it shall be lawful for the said part of the second part to effect such insurance, and the premium and 38 594 MORTGAGES OF LAND. premiums paid for effecting the same shall be a lien on the said mortgaged premises, added to the amount o£ the said bond or obligation, and secured by these presents, and payable on demand with interest at the rate of per cent, per annum. In Witness Whereof, the said part of the first part ha hereunto set hand and seal the day and year first above written. And (iiaine of wife of mortgagor, if married) signs and seals this deed fn token of her relinquishment and release to the said mortgage of all her right and claim of dower in and to the premises hereby granted. Sealed and Delivered in the Presence of (Signatures) (Seals.) State of ^ OF y ss. County of ) On the day of in the year one thousand eight hundred and before me personally came to be the individual described in, and who executed the foregoing instrument, and acknowledged that he executed the same. (198.) The Bond to be Secured by the Preceding Form of Mortgage. Know all DOCen Tjy these Presents, That (name, residence, and occupa- tion of the mortgagor) held and firmly bound unto (name, residence, and occupation of the mortgagee) in the sum of lawful money of the United States of America, to be paid to the said executors, administrators, or assigns : For which payment well and truly to be made, bind heirs, executors, and administrators firmly by these presents. Sealed with seal . Dated the day of one thousand eight hundred and The Condition of the above Obligation is such. That if the above bounden heirs, executors, or administrators, shall well and truly pay, or cause to be paid, unto the above-named ' executors, adminis- trators, or assigns, the just and full sum of the day of which will be in the year one thousand eight hundred and and the interest thereon, to be computed from at and after the rate of per cent, per annum, and to be paid then the above obligation to be void, otherwise to remain in full force and virtue. And it is Hereby Expressly Agreed, that should any default be made in the payment of the said interest, or any part thereof, on any day whereon the same is made payable, as above expressed, or should any tax or assess- ment be hereafter imposed upon the premises described in the mortgage accompanying this bond, and become due or payable, and should the said interest remain unpaid and in arrear for the space of days, or said FORMS OF MORTGAGES, ETC. 595 tax or assessment remain unpaid and in arrears for then and from thenceforth, that is to say, after the lapse or expiration of either one of the said periods, as the case may be, the aforesaid principal sum of with all arrearage of interest thereon, shall, at the option of the said or legal representatives, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired, anything hereinbefore contained to the contrary thereof in anywise notwithstanding. (Signatures.) {Seals.) Signed, Sealed, and Delivered in the Presence of State of ^ OF V ss. County of } On the day of in the year one thousand eight hundred and before me personally came to be the individual described in, and who executed the foregoing instrument, and acknowl- edged that he executed the same. (199.) Satisfaction, of Mortgage, in use in New York. Staje of New York, ■ss. County of I do hereby Certify, That a certain Indenture of Mortgage, bearing date the day of one thousand eight hundred and made and executed {name, residence, and occupation of mortgagor) or (give the day of the date of the mortgage) to {name, residence, and occupation of mortgagee) for the amount of and recorded in the office of County of in Lib. of Mortgages, page on the day of in the year one thousand eight hundred and o'clock, in the is paid. And I do hereby consent that the same be discharged of Record. Dated the day of 18 {Signature^ (Seal.) In presence of State of New York, >■ ss. County of On the day of in the year one thousand eight hund- red and before me personally came to be the individual described in, and who executed the foregoing instrument, and acknowledged that he executed the same. (Signatures). (Seals.) 596 MORTGAGES OF LAND. (200.) Assignment of Mortgage.— Short Fonn. Know all Men by these Presents, That I {name, residence, and occupa- tion of the assignor-) the mortgagee named in a certain mortgage deed, given by {name, residence, and occupation of the mortgagor) to said {name of assignor) to secure the payment of dollars ■^^, dated the day of in the year of our Lord eighteen hundred and recorded in the registry of deeds for the County of lib. fol. in consideration of the sum of dollars jjnr to rnc paid by {name, residence, and occupation of hiyer and assignee) the receipt v.rhereof is hereby acknowledged, do hereby sell, assign, transfer, set over and convey unto said {name of assignee) and his heirs and assigns, said mortgage deed, the real estate thereby conveyed, and the promissory note, debt, and claim thereby secured, and the covenants therein contained. To Have and to Hold the same to him the said {name of assigned) and his heirs and assigns, to his and their use and behoof forever ; sub- ject nevertheless to the conditions herein contained, and to redemption according to law. In Witness Whereof, I, the said have hereunto set my hand and seal this day of in tlie year of our Lord eighteen hundred and {Signature^ {Seal.) Executed and Delivered in Presence of ss. A.D. l8 Then personally appeared the above-named and acknowledged the above instrument to be his free act and deed. Before me, {Signature^ (201.) Assignment of Mortgage, with Power of Attorney. Know all Men by these Presents, That I, {name, residence, and occti- pation of assignor) party of the first part, in consideration of the sum of lawful money of the United States, to me in hand paid by {name, residence, and occupation of assignee) of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer, and set over unto the said party of the second part, his executors, administrators, and assigns, a certain indenture of mortgage, bearing date the day of one thousand eight hundred and made by (liere state the name of the mortgagor, and briefly describe the mortgage deed, and state the vohime and page where it is registered) to which reference may be made, together with all the right, title, interest, and estate of said party of the first part, in and to the premises described and conveyed in and by said indenture of mortgage. FORMS OF MORTGAGES, ETC. 597 Together with the bond (or note) therein described and the money due and to grow due thereon, with the interest accruing or accrued, to have and to hold the same, unto the s,aid party of the second part, his executors, administrators, and assigns, for his and their use, subject only to the proviso in the said indenture of mortgage mentioned; and 1 do hereby make, con- stitute, and, appoint the said party of the second part, my true and lawful attorney, irrevocably in my name or othervvisej bu,t at his own proper costs ■gjld charges, to have, use, and take all lawful \yays and means for the recovery of the said money and interest; and in case of payment to dis- charge tlie same as fully as I might or could do if these presents were not made. In Witness "Whereof, I have hereunto set my hand and seal the day of one thousand eight hundred and {Signature.) (Sea/.) Signed, Sealed, and Delivered in the Presence ef State of >■ ss. County. On this day of eighteen hundred and personally appeared before me known to me to be the person whq signed and sealed the foregoing assignment of mortgage, and 9.cknowledged the execution of the same for the uses and purposes therein set forth. Given under my hand and seal at in said county aforesaid, [Signature^ {Seal.) (202,> Assignment of Mortgage by a Corporation. Know all Men by these Presents, That the {legal name of the corpo- ration assigning) existing as a corporate body, in and under the laws of the State of of the first part, for and in consideration of the sum of lawful money of the United States, to the said corporation paid by {name, residence, and ecctifiation of assignee) of the second part, at or before the ensealing and delivery of these presents,, the receipt whereof is hereby acknowledged, have granted, bargained, sold,, as- signed, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer, and, set o^er unto the said party of the second part, a certain indenture of mortgage, bearing date the day of one thousand eight hundred and made by {here state the name of the mortgagor, and briefly describe the mortgage deed) the same being duly registered in the office of the register of deeds for the County of aed State of to which said indenture of mortgage reference may be had.. Together with the bond or obligation therein described, and the moneys 598 MORTGAGES OF LAND. due, and to grow due thereon, with the interest : to have and to hold the same unto the said party of the second part, his heirs and assigns, for his and their own use, subject only to the proviso in the said indenture of mort- gage mentioned. And the said parties of the first part do hereby make, constitute, and appoint the said party of the second part their true and lawful attorney, irrevocable, in the name of the said parties of the first part, or otherwise, but at the proper costs and charges of the said party of the second part, to have, use, and take all lawful ways and means for the recovery of the said money and interest, and in case of payment, to discharge the same as fully as the said parties of the first part might or could do if these pres- ents were not made. In Witness WTiereof, the said parties of the first part have caused their common seal to be affixed to these presents, and the same to be signed by their attorney and president {or other officer) the day of in the year one thousand eight hundred and (Signatured) (Seal of the Corporation^ Signed, Sealed, and Delivered in Presence of State of >■ ss. County. On the day of in the year one tliousand eight hundred and , before me came with whom I am personally acquainted, and known to me to be the attorney and of the within named corporation, who, being by me duly examined, says, that the seal which is affixed to the within assignment is the corporate seal of the said corporation, and was so affixed by their authority, and acknowledged that he executed the same as their act and deed. (Signature^ (203.) Discharge of Mortgage.— Short Form. This Debt, secured by the mortgage, dated and recorded with deeds, lib. fol. has been paid to me by (name of tnorigagor) and in consideration thereof I do discharge the mortgage and release the mortgaged premises to said (name of mortgagor) and his heirs. Witness my hand and seal A.D. i8 Executed and Delivered in Presence of {Signature) (Seal.) ss. A.D. i8 . Then said acknowledged the foregoing instrument to be free act and deed. Before me, (Signature) FORMS OF MORTGAGES, ETC. 599 (204.) Release and Quitclaim of Mortgage, as used in the "West- ern States.. Know all Men by these Presents, That I {name of mortgagee) of the County of and State of for and in con- sideration of one dollar, to me ia hand paid, and for other good and vafuable considerations, the receipt whereof is hereby confessed, do hereby grant, bargain, remise, convey, release, and quitclaim unto {name of assignee or releasee) of the County of and State of all the right, title, interest, claim, or demand whatsoever I may have acquired in, through, or by a certain indenture or mortgage deed, bearing date the day of A.D. 18 , and recorded in the recorder's office of County, in book of page to the premises therein described, and which said deed was made to secure a certain promissory note {or bond) bearing even date with said deed, for the sum of dollars and cents. "Witness my hand and seal this day of A.D. 18 {Signature) {Seal.) State of 1 V ss. County of ) I, in and for said county, in the State aforesaid, do hereby certify that who is personally known to me as the same person whose name is subscribed to the foregoing deed, appeared before me this day, in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. Given under my hand and seal this. day of A.D. 18 {Signature.) {Seal.) (205.) Discharge of Mortgage, as used in the Middle States. State of 1 V ss. County. ) I, {name, residence, and occupation of mortgagee) do hereby certify that a certain indenture {or deed) of mortgage, bearing date the day of one thousand eight hundred and made and executed by {Jiere state the name of the jnortgagor, and describe the deed briefly) and recorded in the office of County of in lib. of Mortgages, page on the day of ^ in the year one thousand eight hundred and o'clock in the is paid. And I do hereby consent that the same be discharged of record. Dated the day of 18 {Signature) {Seal.) In Presence of 6oo MORTGAGES OF LAND. State of ■ ss. County of On the day of in Ihe year one thousand eight hundred and before me personally came who is known to me to be the individual described in, and who executed the foregoing' instrument, and aclcnowledged that he executed the same as his free act and deed. (SignaUire) (206.) Discharge and Satisfaction of Mortgage by a Corporation. We, (the legal name of the corporatioii) a corporate body existing within and under the laws of the State of Do hereby Certify, That a certain mortgage, bearing date the day of in the year one thousand eight hundred and made and executed by (fiere state the name of the mortgagor, and describe ihe mortgage briefly) and recorded in the office of the register in and for the County of in lib. of Mortgages, page on the day of is paid. In Witness Whereof, The said corporation has caused its corporate seal to be hereunto affixed, this day of in the year one thousand eight hundred and {Signature of attorney^ (Seal of corporation^ Witnessed by State of 1 >-ss. County of ) On the day of in the year one thousand eight hundred and , before me personally came to me known, who, being by me duly sworn, did depose and say, that he resided in the city ipr town) of that he is the attorney and president [or other officer) of the said corporation ; that he knew the corporate seal of the said corporation, and that the seal affixed to the foregoing instrument was sucli corporate seal; that it was affixed by him by order of the said corporation, and that he signed his name thereto by the like order. {Signature.) (207.) Release of a Part of the Mortgaged Premises. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between {name, residence, and occupation of the mortgagee and releasor) party of the first part, and {name, residence, and occupation of the mortgagor to whom the lease is given) party of the second part. FORMS OF MORTGAGES, ETC. goi Whereas, The said party of the second part, by indenture of mortgage, bearing date the day of one thousand eight hundred and for the consideration therein mentioned, and to secure the payment of the money therein specified, did convey certain lands and tene- ments, of which the lands hereinafter described are part, unto the said party ef the first part. And Whereas, The said party of the first part, at the request of the said party of the second part, has agreed to give up and surrender the lands here- inafter described unto the said party of the second part, and to hold and retain the residue of the mortgaged lands as security for tiie money remain- ing due on the said mortgage : Now this Indenture Witnesseth, That the said party of the first part, in pursuance of the said agreement, and in consideration of to him duly paid at the time of the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, released, quit- claimed, and set over, and by these presents does grant, release,, quitclaim, and set over, unto the said party of the second part, all that part of the said mortgaged land {here describe carefully and accurately all that part of the mortgaged land which it is intended to release, distinguishing it from that •which is retained). Together with the hereditaments and appurtenances thereto belonging ; and all the right,, title, and interest of the said party of the first part, of, in, and to the same, to the intent that the lands hereby conveyed may be dis- charged from the said mortgage, and that the rest of the lands in the said mortgage specified may remain to the said party of the first part as here- tofore. To have and to hold the lands and premises hereby released and conveyed, to the said party of the second part, and his heirs and assigns, to bis and their only proper use, benefit, and behoof forever, free, clear, and discharged of and from all lien and claim, under and by virtue of the inden- ture of mortgage aforesaid. In Witness Whereof, The said party of the first part has hereunto set his hand and seal on the day of in the year {Signature.) {Seal.) Executed and Delivered itt Presence of State op County of On the day of in the year one thousand eight hundred and before me personally came who is known to me to be the individual described in, and who executed the fore- going instrument, and acknowledged that he executed the same as his free act and deed. {Signature.) 602 MORTGAGES OF LAND. (208.) Deed Extending a Mortgage. This Indenture, Made this day of A.D. l8 by and between (name, residence, and occupation of the mortgagee) ihe. owner and holder of a certain promissory note (or bond) for the principal sum of dollars, given by (name of mortgagor) and secured by a mort- gage of certain real estate in in the County of and State of dated day A.D. i8 and recorded in Registry of Deeds for the County of lib. fol. party of the first part, and the said (nav'te of mortgagor) party of the second part, Witnesseth, That the said parties, for themselves and their representa- tives, hereby mutually agree that the time for the payment of the principal of said note and mortgage debt shall be and the same is hereby extended for the term of years from the day of A.D. l8 and that the same is to bear interest from said date at the rate of per cent, per annum, payable on the day of and the day of in every year, until said principal sum shall be fully paid. And the said party of the second part hereby covenants and agrees that he will not require the holders of said note and mortgage to receive payment of said mortgage debt during said extended term ; that he will punctually pay the interest now due, and to grow due thereon, at the times and at the rate aforesaid ; that he will keep the mortgaged premises in good repair, and insured against fire, and the taxes thereon duly paid, according to the provisions of said mortgage, and that at the expiration of said extended term he will pay the said mortgage debt, with all interest then due thereon. It is expressly understood and agreed that nothing herein contained shall be construed to impair the security of said party of the first part, or his executors, administrators, or assigns, under said mortgage, or to affect or impair the lien on the real estate therein described which he has by virtue of said mortgage, nor affect or impair any rights or powers which he may have under the said note and mortgage for the recovery of the mortgage debt, with interest, in case of non-fulfilment of this agreement, or of any ol the provisions hereof, by said party of the second part. In Witness Whereof, The said parties have hereunto set their hands and seals the day and year first above written. (Signature of mortgagee.) (Seal) (Signature of mortgagor.) (Seal.) Signed, Sealed, and Delivered in Presence of Commonwealth of ss. rS . Personally appeared the above-named and acknowledged the above instrument to be their free act and deed. Before me, (Signature.) FORMS OF MORTGAGES, ETC. 603 (209.) Deed of Mortgage in use in the Province of Quebec. On this day, the of ' in the year of our Lord one thousand eight hundred and before the undersigned, public notar duly commissioned and sworn in and for the Province of Quebec, in the Dominion of Canada, residing in the city of Montreal, in the said Province, personally came and appeared {insert the name, 7-esidence, and occu- pation of the mortgagor), who acknowledged and confessed to be well and truly indebted unto {insert the name, residence, and occ7tpation of the mort- gagee) hereto present-and accepting, for heirs and assigns, in the sum of currency, for value which the said do hereby acknowledge to have had and received of and from the said to full and entire satisfaction at the passing of these presents, whereof quit. Which said sum of he the said do hereby promise to well and truly pay, or cause to be well and truly paid, unto the said heirs or assigns, in gold coin, at its present standard of value, and of the same weight and fineness and number of pieces as at the date of the passing of this obligation, in before which time it will not be optional with or competent for the said mortgagor to pay the said sum or any portion thereof without the written consent of said mort- gagee or representatives, with interest thereon till paid, at the rate of per centum per annum, to be accounted from and for security of the due and faithful payment of the said sum of and interest at the times and in the manner herein above agreed upon, the said ha mortgaged and hypothecated, and by these presents do mortgage and hypothecate, specially to and in favor of the said heirs and assigns, the hereinafter described landed property, which he declare well and truly to belong to (insert him, her, or them, as the case may bej then- insert the description of the premises conveyed in mortgage, substantially as in Form 107). Provided always, and it is specially covenanted and agreed by and between the said parties hereto, and this clause and condition is not to be or be held or considered to be penal or comminatory, but is of the essence of the present loan and obligation, and without which the same would not have been made or executed, that should the said mortgagor make default in any of the said interest payments for days after such interest payment shall become due and payable as aforesaid, then the said principal sum shall at once become exigible by the said mortgagee, h heirs or assigns, and that without any judicial demand, notice, or other formality whatsoever. And the said mortgagor do hereby further bind and oblige immediately to insure and to keep constantly insured at own cost and expense against loss by fire, with such insurance company or companies as the said mortgagee or representatives may approve of, for a sum of money not less than the house and other buildings erected on 6o4 MORTGAGES OF LAND. the above described piece and parcel of land, and to transfer to the said mortgagee and representatives the policy or policies of such insurance and insurances, together with the sum of money thereby insured, the whole as long as any part or portion of the said amount in principal or interest may remain unpaid. Failing which, the said mortgagee heirs and assigns, shall have the right to do so, and the said mortgagor heirs and representatives, shall be bound to repay on demand to the said mortgagee heirs and assigns, all such sum and sums of money which he or they may have expended in so doing ; and for security thereof the said premises are hereby further hypothe- cated to the extent of . The said mortgagor to pay all counsel and notarial fees in respect hereof, and for one copy of these presents for the said mortgagee and costs of registration ; and when this obligation shall be paid, the said mortgagor shall bear the expense of drawing and register- ing a discharge. And, at the making and passing of these presents, personally came, appeared, and intervened Dame wife of the said and by her said husband duly and specially authorized for the effects and purposes hereof, as appears by his signature hereto, who, after having had and taken communication of the foregoing deed of obligation and mortgage, doth hereby, until payment and satisfaction of the present obligation and mortgage, renounce, as well in her own name and behalf as for and in the name of the child or children born or to be born of her marriage with the said in favor of the said to all dower and all right or title of dower which she, the said and her said child or children, might or of right ought to have or claim in, to, or upon the hereby mortgaged premises, of which she hereby divests herself and her said child or children, declaring the same and every part thereof hereby freed, cleared, and discharged of and from all her and her said child or children's said rights of dower, and all other her matrimonial rights,, whetlier legal, stipulated, or customary, until payment of the present obligation as aforesaid. And for the execution of these presents the said parties have elected their domicil at their. present place of residence above mentioned, where, etc.. Done and Passed, at the said City of Montreal, in the office of the said notar under the number thousand hundred and on the day, month, and year first above and before written, and signed by the said with and in the presence of said notar these pres- ents having been first duly read to the said parties. (210.) Deed of Mortgage, with Dower, in use in Ontario. This Indenture, Made (?« duplicate) the day of in the year of our Lord one thousand eight hundred and in piu"- suance of the Act respecting short forms of mortgages, between (iiame, resi- dence, and occupation of the mortgagor) hereinafter called the mortgagor of the first part ; {name of the wife- of mortgagor) his wife of the second part j, FORMS OF MORTGAGES, ETC. 605 and {name, residence, and ecctipation of the mortgaged) hereinafter called the mortgagee of the third part. "Witnesseth, That in consideration of of lailvful money of Canada, now paid by the said mortgagee to the said mortgagor (the receipt whereof is hereby acknowledged), the said mortgagor do grant and mort- gage unto the said mortgagee heirs and assigns forever, all and singular th certain parcel or tract of land and premises situate, lying, and being {insert here the description of the premises mortgaged, substa?i- iially as in Form 107). The said party of the second part hereby bars her dower in the said lands. Pifovided, This mortg-age to be void on payment of of lawful money of Canada, with interest at per cent, per annum, as follows : and taxes and performance of statute labor. The said mortgagor covenant with the said mortgagee that the mortgagor will pay the mortgage money and interest, and observe the above proviso. That the mortgagor ha a good title in fee-simple to the said lands ; and that he ha the right to convey the said lands to the said mortgagee ; and that on default the said mortgagee shall have quiet possession of the said lands, free from all incumbrances. And that the said mortgagor will execute suoh further assurances of the said lands as may be requisite. {Title-deeds). And that the said mortgagor ha done no act to encumber the said lands. And that the said mortgagor win insure the buildings on the said lands to the amount of not less than dollars currency. And the said mortgagor do release to the said mortgagee all claims upon the said lands, subject to the said proviso. Provided, That the said mortgagee , in default of payment for months, may, upon giving notice in writing, enter upon and lease or sell the said lands ; provided, that the mortgagee may distrain for arrears of interest; provided, that in default of the payment of the interest hereby secured, the principal hereby secured shall become payable ; pro- vided, that until default of payment the mortgagor shall have quiet pos- session of the said lands. In. "Witness Whereof, The said parties hereto have hereunto set their liands and seals. Signed, Sealed, and Delivered in the presence of Received on the day of the date of this Indenture, County, of to wit : 1, {name of witness) oi the of in the County of make oath and say : i. That I was personally present, and did see the within instrument and duplicate thereof duly signed, sealed, and executed by the part thereto. 2. That the said instrument and 6o6 MORTGAGES OF LAND. duplicate were executed at the 3- That I know the said part 4. That I am a subscribing witness to the said instrument and duplicate. Sworn before me, at of in the County of this day of in the year of our Lord 18 A Commissioner for taking affidavits in B. R., etc. (311.) Full Deed of Mortgage, for General Use. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between {name, residence, and occupation of the mortgagor) of the one part, herein- after called the mortgagor, and {name, residence, and occupation of the mortgagee), hereinafter called the mortgagee, of the other part. Whereas, the said mortgagor seized of, or well entitled to, the inherit- ance in fee-simple, of and in the lands and premises hereinafter described and released ; and having occasion to borrow, and take up at interest, the sum of ha applied to and requested the said mortgagee to lend and advance the same, which he the said mortgagee ha agreed to do, on having the repayment thereof secured to by a mortgage of the said lands, tenements, and hereditaments, in manner hereinafter mentioned. Now this Indenture Witnesseth, That in pursuance of the said agree- ment, and in consideration of the sum of to the said mort- gagor in hand paid by the said mortgagee at or immediately before the sealing and delivery of these presents, the receipt whereof the said mort- gagor do hereby acknowledge, and of and from the same, and every part thereof, do acquit, release, and discharge the said mortgagee heirs, executors, administrators, and assigns, and every of them, forever, by these presents, he the said mortgagor ha granted, aliened, released, and confirmed, and by these presents do grant, aliene, release, and confirm (and the said doth hereby release all her right of dower) unto the said mortgagee heirs and assigns, all tract , piece , and parcel of land, hereditaments, and premises, situate, lying, and being {Jiere describe carefully the premises) Together with all houses, buildings, rights, members, and appurte- nances thereunto belonging, or in anywise appertaining ; and all the estate, right, title, claim, and demand of the said mortgagor in, to, or upon the said lands and hereditaments, or any part thereof. To Have and to Hold the said lands, tenements, hereditaments, and premises hereby released, or intended so to be, with their appurtenances, unto the said mortgagee heirs and assigns, to the only proper use of the said mortgagee heirs and assigns, forever. Subject, nevertheless, to the proviso for redemption hereinafter con- FORMS OF MORTGAGES, ETC. go/ tained; that is to say, provided that if the said mortgagor heirs, executors, or administrators, shall pay unto the said mortgagee executors, administrators, or assigns, the full sum of of lawful money of (Prince Edward Island), without any abatement whaiever, then these presents shall cease, and be void to all intents and purposes whatever. And the said mortgagor heirs, executors, and administrators, covenant with the said mortgagee executors and administrators, that he the said mortgagor heirs, executors, or administrators, shall and will pay, or cause to be paid, unto the said mortgagee executors, ad- ministrators, or assigns, the said principal sum of and interest, at the times and in the manner hereinbefore appointed for pay- ment thereof, without any deduction or abatement whatever, according to the true intent and meaning of these presents. And also shall and will, dur- ing so long as the said sum of or any part thereof, shall remain due on the security of these presents, pay or cause to be paid to the said mortgagee executors, administrators, or assigns, interest for the said sum of or for so much thereof as for the time being shall remain unpaid, after the rate of centum per annum, on the day of in every year. And also that he the said mortgagor now in good right to grant, release, and convey the hereditaments hereby released, unto the said mortgagee heirs and assigns, in manner aforesaid, accord- ing to the true intent and meaning of these presents. And further, that it shall and may be lawful to and for the said mortgagee heirs and assigns, after default shall be made in payment of the said sum of and interest, or any part thereof respectively, contrary to the proviso hereinbefore contained, peaceably to enter upon the said her- editaments, and to hold and enjoy the same, without any interruption, claim, or demand whatsoever. And moreover, that he the said mortgagor and heirs, and all persons whatsoever, having any estate or inter- est in the premises, shall and will at all times hereafter, during the con- tinuance of the said sum of and interest, or any part thereof, on this security, upon every reasonable request of the said mortgagee executors, administrators, and assigns, but at the costs and charges of the said mortgagor heirs, executors, and administrators, make and execute and perfect all such further conveyances and assurances in the law whatsoever, for the further and better conveying and assuring the said hereditaments hereby released, unto and to the use of the said mortgagee heirs and assigns ; subject to the said proviso, according to the true intent and meaning of these presents, as by the said mortgagee heirs and assigns, or his or their counsel in the law, shall be reasonably desired or advised and required, and tendered to be made and executed. And it is hereby further Provided, agreed, and declared, by and 6o8 MORTGAGES OF LAND. between the said parties to these presents, that if default shall be made in payment of the said sum of or the interest thereof, or any part thereof respectively, at the times hereinbefore appointed for payment of the same respectively, then and in any of such cases, and when and so ■often as any such default shall be made, the whole amount of the said prin- cipal money shall, notwithstanding any provision or condition of this mort- gage to the contrary, immediately fall due and become payable, and it shall be lawful for the said mortgage executors, administrators, or assigns, at any time or times after such default shall have been somade, with- out any further consent on the part of the said mortgagor heirs and assigns (without prejudice, however, to the right of the said mortgagee heirs and assigns, to foreclose the equity of redemption, or to maintain any action under the covenants hereinbefore contained), to make sale and dispose of the said messuages, land, and other hereditaments and premises hereinbefore granted and released, or expressed or intended so to be, or any part or i>arts thereof, either together or in parcels, and either by public auction or private contract, with full power upon any such sale or sales to make any stipulations as to title or otherwise, which he or he shall deem necessary ; and also with full power to buy in the said heredita- ments and premises, or-any part or parts thereof, at any sale or sales by pub- lic auction, or to rescind any contract or contracts for the sale of the same hereditaments and premises, or any part or parts thereof, and to re-sell the same hereditaments and premises which shall have been so bought in, or as to which any contract or contracts for sale shall have been rescinded as aforesaid, without being responsible for any loss which may be occasioned thereby. And, for the purposes aforesaid, or any of them, it shall be lawfal for the said mortgagee executors, administrators, or assigns, to make and execute, or cause to be made and executed, all such agreements, deeds, conveyances, and assurances as he or executors, administrators, or assigns shall think fit. And it is hereby also agreed and declared, that upon any sale or sales which shall be made under the power of sale hereinbefore contained by the executors or administrators of the said mortgagee or by any other person or persons who may not be seized of the legal estate in the hereditaments and premises to be sold, the heirs of the said mortgagee or any other person or persons in whom the legal estate of the same hereditaments and premises, or any part thereof, shall be vested, shall make such conveyances and assurances of the same, for the purpose of carrying the sale thereof into effect, as the person or persons by whom the same shall be made shall direct. Provided also, and it is hereby agreed and declared, that the said mort- gagee executors, administrators, or assigns, shall not execute the power of sale hereinbefore contained (if the sale or sales thereunder be by public auction) unless and until he or they shall have first given week's notice of such sale, by publishing such notice at least once in every week for successive weeks, in some newspaper published in FORMS OF MORTGAGES, ETC. 609 Provided also, and it is hereby furtlier agreed and declared, that upon any sale purporting to be made in pursuance of the aforesaid power in that behalf, the purchaser or purchasers thereof shall not be bound to see or inquire whether either of the cases mentioned in the clause or provision lastly hereinbefore contained has happened, or whether any money remains due on the security of these presents, or otherwise, as to the propriety or regularity of such sale ; and notwithstanding any impropriety or irregularity whatso- ever in any such sale, the same shall, as far as regards the safety and pro- tection of the purchaser or purchasers thereat, be deemed and taken to be within the aforesaid power in that behalf , and to be valid and effectual accord- ingly, and the remedy of the said mortgagor heirs or assigns, in respect of any breach of the clause or provision lastly hereinbefore con- tained, shall be in damages only. And it is hereby also agreed and declared, that, upon any such sale as aforesaid, the receipt or receipts in writing of the said mortgagee executors, administrators, or assigns, for the purchase-money of the hereditaments and premises to be sold, shall be an effectual discharge or effectual discharges to the purchaser or purchasers for the money therein respectively expressed to be received, and that such purchaser or purchasers, after payment of or purchase- money, shall not be concerned to see to the application of such money, or be answerable for any loss, misapplication, or non-application thereof. And it is hereby further agreed and declared that the said mortgagee executors, administrators, and assigns, shall hold all and singu- lar the moneys which sliall arise from any sale which shall be made in pursuance of the aforesaid power in that behalf, upon the trusts following ; that is to say, upon trust in the iirst place by, with, and out of the same moneys, to reimburse himself or themselves, and to pay or discharge all the costs and expenses attending such sale or sales, or otherwise to be incurred in or about the exercise of the said power of sale or in anywise relating thereto ; and, in the next place, upon trust to apply such moneys in or towards satisfaction of all and singular the moneys which for the time being shall be due on the security of these presents, and then upon trust to pay the surplus [if any] of the said moneys unto the said mortgagor h heirs or assigns, for h and their proper use and benefit. And it is hereby also agreed and declared that the aforesaid power of sale shall and may be exercised by any person or persons who for the time being shall be entitled to receive and give a discharge for the moneys which for the time being shall be due on the security of these presents. Provided Always, and it is hereby agreed and declared, that the said mortgagee, h executors, administrators, or assigns, shall not be answer- able nor accountable for any involuntary losses which may happen in or about the exercise or execution of the aforesaid power or trusts, or any of them. In Witness .TSThereof, the parties above mentioned have hereunto sub- scribed their names and affixed their seals to two copies thereof, interchange- 39 6lO LEASES. ably, at on the day of in the year of our Lord (Name of mortgagor) {Seal) (Name of mortgagee) (Seal) Executed and interchanged in presence of (Names of witnesses) Received, on the day of the date of the within written Indenture, from the within named mortgagee, the sum of being the consid- eration expressed in the same Indenture, to be paid by him to the within named mortgagor. Witness, This Deed was acknowledged before me by therein named apart from her husband, to have been voluntarily executed by her, and that she was aware of the nature of the contents thereof. Dated this day of A.D. l8 J. P. for County. CHAPTER XXXI. LEASES. A LEASE is a contract whereby one party (the tenant) takes the possession of the land and all that is on it, and the other party (the landlord) gives possession of the land, and reserves (that is, agrees to take) a rent, which the tenant pays him by way of compensation. All things usually comprehended under the words "house," "farm," "land," "store," &c., pass to the tenant, where such words are used, unless there be an express exception. And inaccuracies as to qualities, names, measurements, or amounts, will be corrected, if there be enough in the lease to make the purposes and intentions of the parties certain. And letting to hire anything to be used carries with it all those appurtenances and accompaniments necessary for the proper use and enjoyment of the thing which belong to the letter. A landlord is bound to put his lessee into possession with good title. If he covenants "to renew" generally, this means a renewal of the lease on the same terms, but without inserting in the new lease another covenant of renewal. (.EASES. 6l I A landlord is under no legal obligation to'repair the house, unless he expressly agrees to do so. If the house is never so much dilapidated and disfigured as to paper, paint, etc., and locks and blinds and doors and windows are out of order, and the like, the tenant can claim nothing of the landlord. Even if it becomes wholly uninhabitable by no fault of the house or of the landlord, as if it burns up, or is blown down, or if the overflow of a stream ruins a field or a farm, still the landlord is not bound to do anything, unless by special agreement. But if the house is uninhabitable by its own fault, as if it has a noisome and unwholesome stench, or, according to one case, if it be overrun with rats,, or so decayed as to be open to the weather, it would seem to be the law of this country that the tenant may leave the house ; always provided, however, that the objection or defect be not one which the tenant knew or anticipated, or would have known or expected if he had made r-easonable inquiry and investigation before he took his lease. And perhaps no tenant can leave his house, or refuse or abate his rent, for any objection or difficulty arising after ]\& hires the house. But, strange to say, the important question what the tenant's rights are in such a case is still uncertain. If the house be wholly destroyed, the tenant must still pay rent, under an ordinary lease ; because the law looks upon the land as the principal thing, and the house as secondary. And not only so, but if the tenant covenants "to return and rede- liver the house at the end of the term, in good order and condition, reasonable wear and tear only excepted," he would be bound under this agreement to rebuild the house if it were burned down. But recently all welWrawn leases have clauses providing that the rent shall cease or be abated while the premises are uninhabitable from fire or any other unavoidable calamity. A similar exception is added to the clause about returning the house at the end of the lease. If this exception be in, a tenant is not bound to rebuild, even if the house be burned through the carelessness of himself or his servants. A tenant of a room, or of a suite of chambers, is entitled to the use of all the appurtenances and accommodations which fairly go with it, as of the front door and entry, water-closets, 6i2 LEASES. and of all window's, etc., proper to the enjoyment of what he hires. But an express agreement about all these things, and cellar-room, pump, and the like, is always safest. The tenant is not bound to make general repairs without an express agreement. But he must make such as are necessary to preserve the house from injury, as from rain, if shingles or slates are blown off or glass broken. And he would be bound even for ornamental repairs, as paper and paint, under a -cove- nant to return "in good order." The tenant of a farm is bound, without express covenants, to manage and cultivate the same in such a manner as good husbandry and the usual course of management of such farms in his vicinity would require. The times for payment of rent are usually specified in the lease, if not, they would be governed by the usage of the country, if there were any of sufficient distinctness and force. A tenant under a lease which says nothing about underlet- ting has a perfect right to underlet, remaining himself bound for his rent to his landlord. A tenant is not responsible for taxes, unless it is expressly agreed in the lease that he shall be.- If there be a clause prohibiting him from underletting or assigning, and he agrees not to, nevertheless he may do so without forfeiting the land ; but he will be, as before, liable for rent ; and besides this, he will be responsible in an action for any damages which the landlord can show that he has sustained by such underletting. It is usual to go further in the lease than this, and provide that such underletting shall make a forfeiture of the lease, and authorize the landlord to enter upon the premises and turn the tenant out. Where there is this covenant, if the tenant now underlets, the landlord cannot avail himself of the clause of forfeiture and afterwards hold the tenant for his rent. He may either hold him for his rent, and also for damages, or he may terminate the lease ; but cannot do both. That is, if he con. tinues to hold the tenant responsible for rent, he cannot prevent the tenant's letting somebody else occupy the house and pay to him (the tenant) the rent which he pays over. LEASES. 6l2 A tenant of a farm, if his lease is terminated by any event which was uncertain, and which he could neither foresee nor control, is entitled to the annual crop which he sowed while his interest in and right to the farm continued. If a lease be for a certain time, the tenant loses all right or interest in the land or premises when that time comes, and he must leave, or the landlord may turn him out at once. But he is a tenant at will, if he holds over after a lease with consent, or occupies the land or house or store without a lease but with consent and an oral bargain ; and a tenant at will cannot leave, nor can he be turned out, without a notice to quit. The law on this subject is not uniform. In general, however, it is this. If rent is payable quarterly, or not more frequently, then there must be a quarter's notice. If rent is payable oftener, then the notice must be as long as the period of payment. Thus, if rent is payable monthly, there must be a month's notice ; if weekly, a week's notice. But the notice niust terminate on a day when the rent is payable. It may be given at any time, but operates only after the required interval or period between two payments. Thus, if a tenant whose lease terminates on the .31st of December holds over by consent, and pays rent quarterly, and the landlord wishes that he should leave the house on the last day of September, he may give notice on the preceding 30th day of June, or any day preceding that. But if he gives notice on any day before the 30th of June, the tenant will still have a right to stay until the 30th of September. Properly, the notice should specify the day, and the right day, when the tenant must leave ; and should be in writing. Where the rent is in arrear, the notice to quit may be more brief; the statutes of the different States vary on this point, but a frequent period is fourteen days. And if notice to quit is given because the rent is unpaid, it may be given at any time, and will operate at the end of the period which the law desig- nates ; but it should specify the day on which the tenant must quit. A tenant may give notice of his intention to quit, and generally it will be subject to the same rules already stated in reference to the notice given by a landlord. A tenant should 6 14 LEASES. give his notice to the party to whom he is bound to oay rent, or to an authorized agent of that party. FIXTURES. It is quite important that both tenant arid landlord should have some knowledge of the law of fixtures ; far this tells them what things the tenant may take away and what he cannot. For there are many things which a tenant may add, and after- wards remove, and many which he cannot remove. The method of affixing them may be a useful criterion, as it indicates the purpose of removal or otherwise. If with screws, or in such a way as to show that removal was intended, things may be taken away, when, if the same things were fastened more per- manently, they could not be. In modern times the rule in favor of the tenant seems to extend as far as this : whatever he has added, and can remove, leaving the premises entirely restored and in as good order as if he had not removed it, that he may take away. Among the things held to be removable, in different adjudged cases, are these : ornamental chimney- pieces ; coffee-mills ; cornices screwed on ; furnaces ; fire-frames ; stoves; iron backs to chimneys ; looking-glasses; pumps; gates; rails and posts ; barns or stables on blocks. Among those held not removable are these: barns fixed in the gi;ound ; benches fastened to the house ; trees, plants, and hedges, not belonging to a gardener by trade ; conservatory strongly affixed ; glass windows ; locks and keys. But almost every one of these might be removable, or not, according to the intent of the parties, and the rule above stated, of removableness with or without injury. If a man sells a house, the law of fixtures is construed far more severely against him than against a tenant who leaves a house ; that is, the seller must permit the buyer to hold a great many things which an outgoing tenant might remove. Of course, a seller may take what he will from his house before he sells it, or make what bargain the parties choose to make about the fixtures. But if he makes no such bargain, and sells the house, he cannot then take from the house what a tenant who put them there might take. DIGEST OF LEA SES. 6 1 $ In favor of trade and manufactures, the law permits almost anything which was put in by a tenant for such purposes to be taken away, if the premises can be restored substantially to their original condition. In many States there are laws concerning leases, as in the following digest : COUNECTICtTT. — Leases for any term exceeding one year, must be executed, attested, acknowledged, and recorded in the same manner as other deeds. Stats. 1875, p. 354. DELAWARE. — Leases for more than twenty-one years must be re- corded. Stats. 1875, p. 504, MAINE.— A lease for more than seven years must be recorded. Stats. 1871, p. 560. MABYIjAND.— Leases for more than seven years are recorded. Stats. i860, p. 132, MASSACHTJSETTS.— Leases for more than seven years must be re- corded. Stats, i860, p. 466, §'3. MISSISSIPPI. — Leases for more than one year are executed similarly to deeds, and must be recorded. Stats. 1871, § 2,302. NEW HAMPSHIRE.— Leases for more than seven years must be re- corded. NORTH CAROLINA.— All leases that are required to be in writing must be recorded in the proper county within two years. Battle's Revisal, 1873, p. 356. OHIO. — Leases for more than three years must be recorded. Stats. S. & C, i860, pp. 467-468. OREGON. — Leases for ttiore than one year must be recorded. . Laws of 1872, p. 264. PENNSYLVANIA. — Leases for more than twenty-one years must be recorded. Brightley's Pardon's Dig., 1873, p. 473. RHOBE ISLAND. — Leases for more than one year must be executed like ordinary deeds of land, and recorded. Stats. 1872, p. 349. SOUTH CAROLINA. — Leases for more than one year must be re- corded within three months. Stats. 1871, p. 397. TENNESSEE.— Leases for more than one year must be recorded. Stat 1871, § 2,030. TEXAS. — All leases are recorded. VERMONT. — Leases for more than one year must be recorded. The remarks in respect to the variety of forms which will be found at the close of the chapter on deeds of land, are equally 6l6 LEASES. applicable to form's of leases, and should be read in connection with the following forms. (212.) A Short form of a Lease. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and Witnessetli, That I, {name and residence of the lessor) do hereby lease, demise, and let unto {name and residence of the lessee) a certain parcel of land, in the city (or town) of County of and State of with all the buildings thereon standing, and the appurtenances to the same belonging, bounded and described as follows {or, a certain house in said city, giving the street and number, with the landttnder and adjoining the same.) {The premises need not be described quite so minutely or fully as isproper in a deed or mortgage of land, but must be so described as to identify them perfectly, andmake it certain just what premises are leased^ To Hold for the term of from the day of yielding and paying therefor the rent of And said lessee does promise to pay the said rent in four quarterly payments on the day of {or state otherwise just when the pay?nents of rent are to be 7nade) and to quit and deliver up the premises to the lessor or his attorney, peaceably and quietly at the end of the term, in as good order and condition, reasonable use and wearing thereof, fire and other unavoidable casualties excepted, as the same now are or may be put into by the said lessor, and to pay the rent as above stated, and all taxes and duties levied or to be levied thereon during the term, and also the rent and taxes as above stated, for such further time as the lessee may hold the same, and not make or suffer any waste thereof ; nor lease, nor underlet, nor permit any other person or persons to occupy or improve the same, or make or suffer to be made any alteration therein but with the approbation of the lessor thereto in writing, having been first obtained ; and that the lessor may enter to view, and make improvements, and to expel the lessee, if he shall fail to pay the rent and taxes as aforesaid, or make or suffer any strip or waste thereof. In Witness Whereof, The said parties have hereunto interchangeably set their hands and seals the day and year first above written. {Signatures.) {Seals.) Signed, Sealed, and Delivered in Presence of (213.) A fuller Form, with a Provision for Abatement of Rent. This Indenture, Made this day of in the year of our Lord one thousand eight hundred and by and between (name and residence of lessor) and {name and residence of lessee) FORMS OF LEASES. 617 ■Witnesseth, That the said .{name of lessor) does hereby lease, demise, and let unto the said {name of lessee) {describe the premises as directed in Form 211). To Hold for tlie Term of commencing the day of A.D. one thousand eight hundred and the said lessee or those claiming under him, yielding and paying rent therefor the sum of for each and every year, and after the same rate for any part of a year. And the said lessee, for himself, his heirs, executors, and administrators, does hereby covenant to and with the said lessor, and his heirs and assigns, that he or they will pay the said rent of in equal sums of the first of which payments shall be made on the day of AD. one thousand eight hundred and and that he or they will pay rent after the same rate for such further time as he the said lessee, or those claiming under him, may hold the premises ; that he or they will from time to time, upon request by the lessor, or his heirs or assigns, pay to them such sum or sums of money as shall be equal to the amount of the taxes and duties, and water-taxes, that shall be levied or assessed on the demised premises for each year and part of a year during the term aforesaid, and during such further time as the said lessee and those claiming under him may hold the premises ; that he or they will not suffer nor commit any strip or waste in the premises ; that he or they will not assign this lease, nor underlet the whole or any part of the premises, to any person or persons ; and that no alterations or additions shall be made during the term aforesaid, in or to the same, without the consent of the said lessor, or of those having his estate in the premises, being first obtained in writing, allowing thereof ; and also that it shall be lawful for the said lessor, and those having his estate in the premises, at seasonable times to enter into and upon the same to examine the condition thereof ; and further, that he the said lessee, and hisrepresentatives, shall and will, at the expiration of said term, peaceably yield up unto the said lessor, or those having his estate therein, all and singular the premises, and all future erections and additions to or upon the same, in as good order and condition, in all respects (reasonable wearing and use thereof, and damage by fire, and other unavoidable casualties excepted) as the same now are, or may be put into by the said lessor or those having his estate in the premises. Provided always, and these presents are upon this condition, that if the said rent shall be in arrear, or the said lessee or his representatives or assigns do or shall neglect or fail to perform and observe any or either of the above covenants hereinbefore contained, which on his or their part are to be performed, then and in either of said cases, the said lessor, or those having his estate in the said premises, lawfully may, immediately or at any time thereafter, and while such neglect or default continues, and without further notice or demand, enter into and upon the said premises, or any ■ part thereof, in the name of the whole, and repossess the same as of his 6l8 LEASES. former estate, and expel the said lessee and those claiming under him, and remove his or their effects (forcibly if necessary) without being taken or deemed guilly of any manner of trespass, and without prejudice to any remedies which might otherwise be used for arrears of rent, or preceding breach of covenant. And provided also, that in case the premises, or any part thereof, shall, during said term, be destroyed or damaged by fire or other unavoidable casualty, so that the same shall be thereby rendered u:;fit for use and habi- tation, then, and in such case, the rent hereinbefore reserved, or a just and proportionate part thereof, according to the nature and extent of the injuries sustained, shall be suspended or abated until the said premises shall have been put in proper condition for use and habitation by the said lessor, or these presents shall thereby be determined and ended at the election of the said lessor or his legal representatives. In Testimony Whereof, The said parties have set their hands and seals on the day and year first above written, to this and to another instru- ment of hke tenor and date. (Signatures.) [Seals.) Signed, Sealed, and Delivered in Presence of (214.) A Short Form of Urease, in use in the "Western States. This Indenture, Made this day of i8 , between [iiame and residence of the lessor) party of the first part, and {name and residence of the lessee) party of the second part, witnesseth that the said party of the first part, in consideratiort of the covenants of the said party of the second part, hereinafter set forth, do by these presents lease to the said party of the second part the following-described property, to wit (describe the property as directed in Form 2 1 1 ). To Have and to Hold the same to the said party of the second part, from the day of i8 , to the day of 1 8 . And the said party of the second part, in consideration of the leasing the premises as above set forth, covenants and agrees with the party of the first part to pay the said party of the first part, as rent for the same, the sum of dollars, payable as follows, to wit (here state the times and terms of payment, much as in Form 2ii). The said party of the second part further covenants with the said party of the first part, that at the expiration of the time mentioned in this lease, peaceable possession of the said premises shall be given to said party of the first part, in as good condition as they now are, the usual wear, inevitable accidents, and loss by fire excepted ; and that upon the non payment of the whole or any portion of the said rent at the time when the same is above promised to be paid, the said party of the first part may, at his election, either distrain for said rent due, or declare this lease at an end, and recover FORMS OF LEASES. 6ip possession as if the same was held by forcible detainer : the said party ol the second part hereby waiving any notice of such election, or any demand for the possession of said premises. The covenants herein shall extend to and be binding upon the heirs, executors, and administrators of the parties to this lease. Witness the hands and seals of the parlies aforesaid. (Signaliire of lessor.") {Seal) {Signature of lessee.) {Seal.) (216.) A Lease of City Property, in use in Chicago. This Indenture, Made this day of in the year of pur Lord one thousand eight hundred and between {name of the lessor) of the city of in the County of and State of party of the first part, and {name and residence of the lessee) of the second part, "Witnesseth, That the said party of the first part, for and in considera- tion of the covenants and agreements hereinafter mentioned, to be kept and performed by the said party of the second part, or his executors, adminis- trators, and assigns, has demised and leased to the said party of the second part all those premises situate, lying, and being in the city of Chicago, in the County of Cook, and State of Illinois, and known and described as follows, to wit (here describe the premises as directed in Form 21 1). To Have and to Hold the said above-described premises, with the appurtenances, unto the said party of the second part, and his executors, administrators, and assigns, from the day of in the year of our Lord one thousand eight hundred and for and during, and until the day of in the year of our Lord one thousand eight hundred and the said party of the second part paying rent therefor, as hereinafter stated. And the said party of the second part, in consideration of the leasing the premises aforesaid, by the said party of the first part, to the said party of the second part, does covenant and agree with the said party of the first part, and his heirs, executors, administrators, and assigns, to pay the said party of t-he first part, at the house {or office or store) of the said party of the first part, numbered in Street, Chicago, or at the house or office of his assigns, as rent for the said demised premises, the sum of {st ^te the whole annual rent) payable as follows {here state the times and terms of the pay- ments of rent). And it is further agreed -by the said party of the second part, in consid- eration of the leasing of the premises, that the said party of the second part shall and will pay, or cause to be paid, promptly, as soon as the same becomes due, all assessments for water-rents that may be levied upon said demised premises, during the continuance of this lease, by the Board of Water Com- missioners of the city of Chicago, and save the said premises and the said 620 LEASES. party of the first part harmless therefrom, and that he wi!l keep said premises in a clean and healthful condition, in accordance with the ordinances of the city and the direction of the Sewerage Commissioners. And the said party of the second part hereby covenants and agrees, in case of delay in payment of any water-rent levied upon said premises during said term, to pay said party of the first part, as liquidated damages for such breach of covenant, double the sum of such rent so assessed upon said prem- ises as aforesaid. And the said party of the second part further covenants with the said party of the first part, that at the expiration of the time in this lease men- tioned, he will yield up the said demised premises to the said party of the first part, in as good condition as when the same were entered upon by the said party of the second part, loss by fire or inevitable accident, and ordinary wear excepted. It is further agreed by the said party of the second part, that neither he nor his legal representatives will underlet said premises, or any part thereof, or assign this lease, without the written assent of said party of the first part, first had and obtained thereto. It is Expressly TTnderstood and Agfreed, By and between the parties aforesaid, that if the rent above reserved, or any part thereof, shall be behind or unpaid on the day and at the place of payment whereon the same ought to be paid, as aforesaid, or if default shall be made in any Of the covenants herein contained, to be kept by the said party of the second part, or his executors, administrators, and assigns, it shall and may be lawful for the said party of the first part, or his heirs, executors, administrators, agent, attorney, or assigns, at his or their election, to declare said term ended, and the said demised prenpises, or any part thereof, either with or without process of law, to re-enter, and the said party of the second part, or any other person or persons occupying, in or upon the same, to expel, remove, and put out, using such force as may be necessary in so doing, and the said premises again to repossess and enjoy as in his or their first and former estate ; and it shall be the duty of the said party of the second part, his executors, admin- istrators, or assigns, to be and appear at the said place above specified for the payment of said rent, and then and there tender and pay the same as the same shall fall due from time to time, as above, to the said party of the first part, or his agent or assigns; or in his or their absence, if the party of the second part, or his legal representatives, shall offer to pay the same then and there, such offer shall prevent such forfeiture. And it is expressly understood that it shall not be necessary in any event for the party of the first part, or his assigns, to go on or near the said demised premises to demand said rent, or elsewhere than at the place aforesaid. And in the event of any rent being due and unpaid, whether before or after such for- feiture declared, to distrain for any rent that may be due thereon, upon any property belonging to the said party of the second part, whether the same be exempt from execution or distress by law or not, and the said party of FORMS OF LEASES. 62 1 the second part, in that case, hereby waives all legal rights which he may have to hold or retain any such property, under any exemption laws now in force in this State, or in any other way. Meaning and intending hereby to give to the said party of the first part, and his heirs, executors, administrators, and assigns, a valid and first lien upon any and all the goods, chattels, or other property belonging to the said party of the second part, as security for the payment of said rent, in manner aforesaid, anything hereinbefore con- tained to the contrary notwithstanding. And if at any time said term shall be ended at such election of said party of the first part, or his heirs, execu- tors, administrators, or assigns, as aforesaid, or in any other way, the said party of the second part, for himself and his executors, administrators, and assigns, does hereby covenant, promise, and agree to surrender and deliver up said above-described premises and property, peaceably to the said party of the first part, or his heirs, executors, administrators, and assigns, imme- diately upon the determination of said term as aforesaid ; and, if he shall remain in the possession of the same days after notice of such default, or after the termination of this lease, in any of the ways above named, he shall be deemed guilty of a forcible detainer of said demised premises under the statute, and shall be subject to all the conditions and provisions above named, and to eviction and removal, forcibly or otherwise, with or without process of law, as above stated ; and in order to enforce a forfeiture of this lease for non-payment of rent when due, no demand for rent when due shall be required, any demand being hereby expressly waived. And it is further covenanted and agreed by and between the parties, that the party of the second part shall pay and discharge all costs and attorney's fees and expenses that shall arise from enforcing the covenants of this inden- ture by the party of the first part. In Testimony Whereof, The said parties have hereunto set their hands and seals the day and year first above written. (Signature of lessor) (Seal) (Sigtiature of lessee) (Seal) In Presence of (216.) A Lease with Provisions for Taxes and Assessments. This Indenture, Made the day of in the year one thousand eight hundred and between (name and residence of lessor) of the first part, and (7iaine and residence of lessee) of the second part, witnesseth, that the said party of the first part, for and in consideration of the rents, covenants, and agreements hereinafter mentioned, reserved, and contained, on the part and behalf of the said party of the second part, his executors, administrators, and assigns, to be paid, kept, and performed, has granted, demised, and to farm letten, and by these presents does grant, demise, and to farm let, unto the said party of the second part, and his executors, administrators, and assigns, all (describe the premises as directed in Form 211). 622 LEASES. To Have and to Hold the said above mentioned and described premises, with the appurtenances, unto the said party of the second part, his executors, administrators, and assigns, from the day of one thousand eight hundred and for and during and until the full end and term of thence next ensuing ; and fully to be complete and ended, yielding and paying therefor unto the said party of the first part, his heirs or assigns, yearly, and every year during the said term hereby granted, the yearly rent or sum of lawful money of the United States of America, in equal quarter-yearly payments, to wit : on the first day of {pafne the months) in each and every of the said years : Provided always, nevertheless, that if the yearly rent above reserved, or any part thereof, shall be behind or unpaid on any day of payment whereon the same ought to be paid as aforesaid ; or if default shall be made in any of the covenants herein contained, on the part and behalf of the said party of the second part, his executors, administrators, and assigns, to be paid, kept, and performed, then and from thenceforth it shall and may be lawful for the said party of the first part, his heirs or assigns, into and upon the said demised premises, and every part thereof, wholly to re-enter and remove all persons therefrom, and the same to have again, repossess, and enjoy, as in his or their first and former estate, anything hereinbefore contained to the contrary thereof in anywise notwithstanding. And the said party of the second part, for himself and his heirs, executors, and administrators, does cove- nant and agree, to and with the said party of the first part, his heirs and . assigns, by these presents, that the said party of the second part, his executors, administrators, or assigns, shall and will yearly, and every year during the said term hereby granted, well and truly pay, or cause to be paid, unto the said party of the first part, his heirs or assigns, the said yearly rent above reserved, on the days and in manner limited and prescribed as aforesaid, for the payment thereof, without any deduction, fraud, or delay, according to the true intent and meaning of these presents. And that the said party of the sec- ond part, his executors, administrators, or assigns, shall and will, at their own proper costs and charges, bear, pay, and discharge all such taxes, duties, and assessments whatsoever, as shall or may, during the said term hereby granted, be charged, assessed, or imposed upon the said demised premises. And that on the last day of the said term, or other sooner determination of the estate hereby granted, the said party of the second part, his executors, administrators, or assigns, shall and will peaceably and quietly leave, sur- render, and yield up unto the said party of the first part, his heirs or assigns, all and singular the said demised premises. And the said party of the first part, for himself and his heirs, executors, and administrators, does covenant and agree to and with the said party of the second part, his executors, administrators, and assigns, by these pres- ents, that the said party of the second part, his executors, administrators, or assigns, paying the said yearly rent above reserved, and performing the covenants and agreements aforesaid on his and their part, the said party FORMS OF LEASES. 623 of the second part, his executors, administrators, and assigns, shall and may at all times during the said term hereby granted, peaceably and quietly have, hold, and enjoy the said demised premises, without any manner of let, suit, trouble, or hindrance of or from the said party of the first part, his heirs or assigns, or any other person or persons whomsoever. In Witness Whereof, The said parties have hereunto set their hands and seals, interchangeably, to two copies of this indenture. {Signature of lessor.) {Seal.) {Signature of lessee.) {Seal.) In Presence of (217.) A Lease, with Covenants about "Water-Rate, and Injury by- Fire, in \ise in New York. This Agreement, Made between {name and residence of lessor) party of the first part, and {name and residence of lessee) party of the second part, witnesseth, that the said party of the first part has agreed to let, and hereby does let, and the said party of the second part has agreed to take, and hereby does take, the following-described premises {here describe the prem- ises, as ijiForm 211) for the terra of to commence and to end to be occupied {describe the intended occupation) and not otherwise. And the said party of the sec- ond part hereby covenants and agrees to pay unto the said party of the first part the annual rent or sum of dollars, payable {state the times and terms of the payments). And shall also pay the Croton water-rate, and will keep the plumbing ■work, pipes, glass, and the premises generally in repair, and will surrender them at the expiration of the said term, in as good state and condition as reasonable use and wear thereof will permit. And the said party of the second part further covenants that he will not assign, let, or underlet the whole or any part of the said premises, nor make any alteration therein without the written consent of the said parly of the first part, under the penalty of forfeiture and damages ; and that he will not occupy the said premises, nor permit the same to be occupied for any business deemed extra-hazardous without the like consent, under the like penalty. And the said party of the second part further covenants that he will permit the said party of the first part, or his agent, to show the premises to per- sons wishing to hire or purchase, and three months next preceding the expiration of the term will permit the usual notices of " to let," or " for sale," to be placed upon the windows, walls, or doors of said premises, and remain thereon without hindrance or molestation. And also, that if default be made in any of the covenants herein contained on the part of the party of the second part, or if the said premises or any part thereof shall become vacant during the said term, the said party of the first part may re-enter the same, either by force or otherwise, without being liable to any prosecution therefor ; and re-let the said premises or any part 624 LEASES. thereof in one or more parcels, as the agent of the said party of the second part, and receive the rent thereof, applying the same, first to the payment of such expense as he may be put to in re-entering, and then to the payment of the rent due Ijy these presents ; and the balance (if any) to be paid over to the said party of the second part ; and, in case of deficiency, said party of the second part will pay the same. And the said party of the second part hereby further covenants that if any default be made in the payment of the said rent, or any part thereof, at the times above specified, or if default be made in the performance of any of the covenants or agreements herein contained, the said hiring, and the relation of landlord and tenant, at the option of the Said party of the first part, shall wholly cease and determine ; and the said party of the first part shall and may re-enter the said premises, and remove all persons therefrom ; and the said party of the second i^art hereby expressly waive the service of any notice in writing of intention to re-enter, as provided for in the third section of an act entitled "An Act to abolish Distress for Rent, and for other Pur- poses," passed IVIay 13, 1846. And it is further agreed between the parties to these presents, that, in case the building hereby leased shall be partially damaged by fire, the same shall be repaired as speedily as possible by the party of the first part ; that, in case the damage shall be so extensive as to render the building untenant- able, the rent shall cease until the same be repaired; provided the damage be not caused by the carelessness or negligence of the party of the second part, or his agents or servants. If the building be so damaged that the owner shall decide to rebuild, the term shall cease, the premises be surrendered, and the accrued rent be paid up to the time of the fire. In consideration of the letting of the premises above mentioned to the above named [name of the lessee) and of the sum of one dollar to him paid by the said parly of the first part, the said party of the second part does hereby covenant and agree to and with the party of the first part above named, and his legal representatives, that if default shall at any time be made by the said party of the second part, in the payment of the rent and performance of the covenants above contained on his part to be paid and performed, thathe will well and truly pay the said rent or any arrears thereof, that may remain due unto the said party of the first part, and also all damages that may arise in consequence of the non-performance of said covenants, or either of them, without requiring notice of any such default from the said party of the first part. Witness our hands and seals this day of in the year of our Lord one thousand eight hundred and {Witness^ {Signature of lessor.) {Seal.) {Signature of lessee.) {Seal.) FORMS OF LEASES. 625 (218.) A Lease by Grant, in use in the "Western States. This Indenture, Made and entered into on the day of one thousand eight hundred and by and between {na?ne of lessor) of {residence of lessor) party of the first part, and {name of lessee) of [residence of lessee) party of the second part, witnesseth, that the said party of the first part, in consideration of the rents reserved, and the covenants hereinafter contained, does hereby grant, demise, and to farm let, unto the said party of the second part {describe the premises as in Form 211). To Have and to Hold the Same, With all the rights, immunities, privi- leges and appurtenances thereto belonging, unto the said party of the second part, and his executors, administrators, and assigns, for and during the full end and term of commencing on the day of 18 , and ending on the day of 18 , under and subject to the stipulations hereinafter contained, the said party of the second part yielding and paying to the said party of the first part, for the said premises, the annual rent of payable in equal quarterly {or monthly) payments ; that is to say on the during said term ; which rent the said party of the second part, for himself and his executors, administrators, and assigns, cov- enants well and truly to pay, at the times aforesaid. And the said party of the second part covenants and agrees that if the rent aforesaid should at any time remain due and unpaid, the same shall bear interest at the rate of per cent, per annum, from the time it so becomes due, until paid. And the said party of the second part further cov- enants and agrees that it shall be lawful for the said party of the first part, and those having freehold estate in the premises, at reasonable times to enter into and upon the same, to examine the condition thereof ; and also that the said party of the second part, and his legal representatives, shall and will, at the expiration of this lease, whether by limitation or forfeiture, peace- ably yield up to the said party of the first part, or his legal representatives, the said premises, in the condition received, only excepting natural wear and decay, and the effects of fire ; and that the said party of the second part, for and during all the time that he, or anyone else in his name, shall hold over the premises after the expiration of this lease, in either of said ways, shall and will pay to said party of the first part double the rent hereinbefore reserved. Also the said party of the second part further covenants and agrees that any failure to pay the rent hereinbefore reserved, when due, and within days after a demand for the same, shall produce an absolute forfeiture of this lease, if so determined by said party of the first part, or his legal represen- tatives. Also that this lease shall not be assigned, nor the said premises, or any part thereof, underlet, without the written consent of the said party of the first part, or his legal representatives, under penalty of forfeiture. And that all repairs of a temporary character, deemed necessary by said party of 40 6^6 LEASES. the second part, shall be made at his own expense, with the consent of the said party of the first part, or his legal representatives, and not otherwise. Provided Always, and these presents are on this express condition, that if the said party of the second part, or his legal representatives, shall fail to pay the rent hereinbefore reserved, for the space of days after the same shall have become due, or shall fail to perform any of the covenants hereinbefore entered into on his and their part, then the said party of the first part shall be at liberty to declare this lease forfeited, by serving a written notice to that effect on the said party of the second part, or his legal repre- sentatives, and to re-enter upon and take possession of the demised premi- ses, free from any claim of the lessee or any one claiming under him. And all estate herein granted shall, upon service of such notice, forthwith cease, and said lessor, his heirs, legal representatives, or assigns, shall be forthwith entitled to the possession of the demised premises without any further pro- ceeding at law or otherwise, to recover possession thereof. And the said party of the first part covenants and agrees with the said party of the second part, and his legal representatives, that, the covenants herein contained being faithfully performed by the said party of the second part, he shall peaceably hold and enjoy the said demised premises, during the term aforesaid, with- out hindrance or interruption by the said lessor or any other person. In Witness Whereof, The said parties have executed this indenture in duplicate, signing their names and afExing their seals to both parts thereof, the day and year in this behalf above written. (Signature of lessor.) {Seal.) {Signature of lessee) {Seal.) In Presence of (219.) A Lease by Certificate, with Surety. This is to Certify, That I have let and rented unto {iiame of lessee) {describe the premises, as in Form 21 1) for the term of from the day of 18 at the annual rent of dollars, payable {state time of payment). The premises above mentioned, or any part thereof, shall not be let or underlet without the WTitten consent of the landlord, under penalty of forfeiture and damages ; nor shall the same be used or occupied for any business deemed hazardous on account of fire, without the Hke consent under the like penalty. Given under my hand and seal the day of 18 {Signature) {Seal.) {Witnesses.) This is to Certify, That I have hired and taken from {name of lessor) {describe the premises in the same way as in the preceding part) for the term of from the day of 18 at the rent of dollars, payable And I hereby promise to make punctual payment of the rent in manner FORMS OF LEASES. 627 aforesaid, and to quit and surrender tlie premises, at tne expiration of said term, in as g;ood slate and condition as reasonable use and wear thereof will permit, damages by the elements excepted, and engage not to let or underlet the whole cr any part of the said premises, without the written consent of the landlord, under the penalty of forfeiture and damages ; and also not to use or occupy the said premises for any business deemed extra hazardous, on account of fire, without the like consent, under the like penalty. Given under my hand and seal the day of 18 {Signature.) {Seal.) ( Witnesses.) In Consideration of the letting of the premises above described, and for the sum of one dollar, I do hereby become surety for the punctual pay- ment of the rent, and performance of the covenants, in the above-written agreement mentioned, to be paid and performed by (name of lessee) zxAM any default shall be made therein, I do hereby promise and agree to pay unto {name of lessor) such sum or sums of money as will be sufficient to make up such deficiency, and fully satisfy the conditions of the said agreement without requiring any notice of non-payment, or proof of demand being made. Given under my hand and seal the day of 18 (Witnesses^ (220.) {Signature^ (Seal.) A Lease of City Property, in use in St. Louis. This Indenture, Made the day of in the year of our Lord eighteen hundred and between (name and residence -ss. County' o9' y (Name of landlord) landlord, against {name of tenant) tenknt.' Take libtibe, That you are justly indebted unto me in the sum of for rent of" {home] stored or other premises, describing them generally) from {dhte •when'the'renl'was diie and payable), which you are required to pay on of before ttie expiration of "three days from the day of the service of this notice, oi^'suf-render up the possession of the said premises to in default of which" shall proceed under the' provisiohs of law to recover the possession thereof. Dated this day of , 18 {Name of the landlord) Landlord. To {name of the tenant) Tenant, in possession of- the premises ' above specified. (232.) Landlord's Notice tolekve at End of the Term. To {name and address of the HkttM!) Sir, — Being in the possession of a certain messuage ot tehefffeht, with'tfte appurtenances, situate {describe' the p'remises briefly) which said premises' were demised to you by me' fora ■certain term',"ito"wit, from the day of A.D. i8- uhtilthe day of A.D. iS , and which said term will terminate and expire on the day and year last aieresaid, I hereby give' you BOtide," that it is «iy desire- to have again 644 LEASES. and re-possess the said messuage or tenement, with the appurtenances, and I therefore do hereby require you to leave the same upon the expiration of the said hereinbefore mentioned term. Witness my hand this day of city of A.D. 18 (Signattire^ (Witness^ (233.) Landlord's Notice to Determine a Tenancy at 'Will. State of ss. A.D. 18 To {name of tenant). You being in possession of the following-described premises, which you occupy as my tenant at will {describing them sufficiently to identify them) in the {city and street) aforesaid, are hereby notified to quit and deliver up to me the premises aforesaid {on such a day, stating here the day as far distant as is made necessary by the requisite length of notice) according to law, it being my intention to determine your tenancy at will. Hereof fail not, or I shall take a due course of law to eject you from the same. ( Witness^ {Signature^ (234.) Receipt for Rent, in use in New York. Rent payable The tenant mentioned below hereby agrees to pay the rent of the premi- ses occupied and used by on the first day of the term ; and engages to clean the entries, stairs, stoops, and privy thereof, weekly, in turn with other occupants, and not incumber the same with furniture, fuel, or rubbish, nor keep any hog, dog, or fowl, nor deposit ashes or garbage on said premises, nor in the sinks or privies, nor split wood on the hearth, floor, or yard. New York, 18 Received from {name of tenant paying) dollars, for month's rent, from 18 to 18 for {stone, brick, or other) house. No Street, in the city of New York. % (236.)] Lease in use in the Province of Quebec. On this day, the of in the year of our Lord one thousand eight hundred and before the undersigned Public Notar , duly commissioned and sworn in and for the heretofore Province of Lower Canada, now the Province of Quebec, in the Dominion of Canada, residing in the city of Montreal, in the said Province, appeared {name, residence, and occupation of the lessor) who declared to have let and leased, and by these FORMS OF LEASES, ETC. 64s presents do let and lease, and promise to procure peaceable enjoyment unto {name, residence, and occupation of lessee) present and accepting lessee for for, during, and until tlie full end and term of to be accounted and reckoned on and from the day of the month of in the year {insert a description of the premises leased, as directed in Form 111). With the whole the said lessee con- tent and satisfied, having seen and viewed the same. The present lease is thus made for and in consideration of the sum of current money of the said Province of Canada, per during the said term, which the said lessee do hereby covenant, promise, and agree, and bind and oblige to well and truly pay, or cause to be paid, to the said lessor or legal representatives, in and by even and equal payments of each ; the first payment whereof to become due and payable on the day of now next ensuing, and thus to continue as aforesaid during all the said term ; and, in further consideration, that the said lessee shall and do hereby promise and agree, and bind and oblige to pay the railway tax, the park tax, the school tax, the water tax, the yearly assessments of said leased premises, and every other tax, charge, and burden which may be imposed or levied thereon, during the said term ; and, further, that the said lessee shall furnish the said leased premises with a sufficient quantity of household furniture or goods to secure the payment of the said rent, keep the premises in repairs {reparations locatives), during the said term, and deliver the same at the expiration of the present lease in as good order, state, and condition as the same may be found in at the commencement of the same, reasonable tear and wear and accidents by fire excepted. It is expressly agreed by and between the said- parties that the said lessee shall not transfer right in the present lease, or sublet any part or portion of the above rented premises, without the consent, in writing, of the said lessor or representatives. The said lessee shall not make any alteration in the said leased premises without the consent of the -said lessor or representatives ; and, in case any such alterations should be made, then the said lessee shall be bound to put the said leased premises in the same state in which they were at the commencement of the present lease, unless the said lessor prefer that the said alterations should remain, without any compensation being allowed to the said lessee for such alteration. Should any grosses reparations be deemed necessary in the said leased premises, the said lessee shall permit the same to be performed, without pretending or demanding any reduction in the said rent, damages, interest, or compensation ; provided always, that the said repairs be indispensable, and be finished within a reasonable time. The said lessee shall, during the said term, conform to the rules and regulations of poUce, and pay the sweeping of the chimneys of said leased premises during the said term. The said lessee shall, during the last three 646 LEASES. months of the present lease, allow such person or persons as may be desirous of obtaining a lease of the .said premises to visit the same, and will suffer handbills for that purpose to be placarded and left on the said premises. The said leasee shall pay all extra premium of assurance that the com- pany, at which the premises now leased may be insured, .shall exact in con- sequence of the business or works done and carried on therein by the said lessee. And for the execution Jieteof ^he said parties to these presents have elected domiciles; to wit, the said lessee ^t and upon the premises now leased, and the said .lessor at place of residence above described, where, &c. Done and Passed at the said city of Montreal, in the office of the said notar , under the number thousand hundred and on the day,, month, and year first above and before written, and signed by the said with and in the presence of said notar , these presents having (been first duly read to the said parties by said notar . {Signatures^ (Seals.} (236.) Lease in use in the Province of Quebec, known as "Private Lease." This Indentiure of Lease, Made between {name, residence, and occupa- tion of lessor), of the first part, and {name, residence, and occupation of lessee) of the second part, "Witnesseth, That the said do hereby lease for .the term of year , from the iinto the said hereby present and accepting for that is to say {here describe the premises leased ■with sufficient distinctness) the said leased premises being well known to the said lessee having seen and examined the same before the execution of these presents, and with the said leased premises content and satis- fied. This lease is thus made subject to the following stipulations: viz., that the lessee shall make all repairs customarily made by tenants, during the present lease, and at the termination thereof shall peaceably surrender the said premises in the like condition as when taken possession of, reason- able tear and wear being allowed ; that shall constantly keep the hereby leased premises furnished according to law for the security of the rent hereinafter stipulated ; that shall not make over interest in the present lease, or sublet the whole or any part of the premises hereby leased, without the consent of the lessor being first obtained in writing for that purpose. The said lessee promise to pay the yearly taxes or assessments for and during the said.term, at whatever rate or amount or for whatever purpose the same may be levied, school tax and all other taxes and assessments, and perform all the requirements of the police and fire departments, to the per- fect exoneration of the lessor ; and during the last three months of the FORMS OF LEASES, ETC. 6^7 present lease shall allow such person or persons as may be desirous of obtaining a lease of the said prfemises, to visit the same at seasonable hours; and shall also permit notices of such intended lease to be put up on the premises. The les'see shall also pay any and all extra premiums levied in conse- quence of the business thatmay be carried on by It is especially and distinctly understood and agreed by ahd betweeii the .parties, that the furniture, goods, chattels, and eifects of every kind and ■description belonging to the lessee shall be security for the payment of the rent for the entire term, and shall not be removed from 'the said leased .premises until the rent for the -whole term be paid, even if Hot due, any law, usage, or custom to the contrary notwithstanding, for without this condition the present lease would hot have beeti made ; liothitig herein contained to ■be deemed or construed as comminatory or evasive, but of rigor. This lease is further made in consideration of the sum Of current money of this Province, which the said lessee bind and oblige to well and truly pay to the said lessor or lawful representatives, in equal payments of the first payment whereof to be due and payable on the next. Signed in duplicate, at Montreal, this day of in the year of our Lord one thousand teight -hundred and in thepresence of {Signatures.) {Seals.) (237.) Lease of Land in use in Ontario and Other Provinces. This Indenture, Made the day of in the j'e&.r of our Lord one thousand eight hundred and -, between {name, residence, and occupation of the lessor), the party of the first pSrt, and (name, residence, and occupation of lessee) the party of the second part, Witnesseth, That in consideiratioti of the rent, covenants, and agree- ments hereinafter reserved and contained, and to be paid, observed, and performed by the said part of the second part, executors, adminis- trators, and assigns, the said part of the first part ha demised and leased, and by these presents do demise knd lease, unto the said pa'i-t of the second part executors, administrators, aftd assigns, all th certain parcel or tract of latid and premises situate, lying, and being {describe .premises leased with sufficient distinctness to identify them per- fectly). To Have and to Hold the said parcel Or tract of land, with the appur- tenances, unto the said part of the second part executors, administrators, iand assigns, from the day of one thousand eight'hundred and for the term of from thence next ensuing, and fully to be completed and ended, yielding and paying therefor unto the said part of the first part executors, administrators, and assigns, the yearly rent or sura of of lawful money of Canada, by equal 648 LEASES. payments, on the in each and every year during the said term, the first payment to be made on the day of next ensuing the date hereof. And the said part of the second part doth hereby for heirs, executors, administrators, and assigns, covenant, promise, and agree with and to the said part of the first part, heirs, executors, administrators, and assigns, that the said part of the second part executors, administrators, and assigns, shall and will well and truly pay, or cause to be paid, to the said part of the first part, executors, administrators, or assigns, the said yearly rent hereby reserved, at the times and in manner hereinbefore mentioned for payment thereof, without any deduction or abatement whatsoever thereout, for, or in respect of, any rates, taxes, and impositions, assessment, or otherwise ; and will, during said term, discharge and pay all rates, taxes, assessments, and impositions now payable or here- after to become payable in respect of said premises ; and also shall and will perform all statute labor in respect of said premises, during the whole of the term hereby granted. Provided always, and it is hereby agreed by and between the said parties hereto, that if, at any time or times during the said term, the said rent, or any part thereof, shall be in arrear and unpaid for the space of thirty days after any of the days or times whereon the same ought to be paid as aforesaid, then it shall be lawful for the said part of the first part, heirs, executors, administrators, or assigns, to enter into and take possession of the premises hereby demised, whether the same be lawfully demanded or not, and the said premises to have again, repossess, and enjoy, as if these presents had never been executed, without the let, hindrance, or denial of the said part of the second part, heirs, execu.to.rs, admin- istrators, or assigns ; and, further, that the non-fulfilment of the covenants hereinbefore mentioned, or any of them, on the part of the lessee or lessees, shall operate as a forfeiture of these presents, and the same shall be con- sidered null and void to all intents and purposes whatsoever ; and also, that the said part of the second part, executors, administrators, and assigns, shall not nor will, during the said term, grant or demise, or assign, transfer, or set over, or otherwise, by any act or deed, procure or cause the said premises hereby demised or intended so to be, or any part thereof, or any estate, term, or interest therein, to be granted, assigned, transferred, under- let, or set over unto any person or persons whomsoever, nor carry on any offensive trade or business on the premises, without the consent in writing, of the said part of the first part, heirs or assigns, first had and obtained. And the said part of the second part do hereby for heirs, executors, administrators, and assigns, covenant, promise, and agree, with and to the said part of the first part, heirs, executors, administrators, or assigns, that the said part of the second part, heirs, executors, administrators, or assigns, will, at the end of the term hereby FORMS OF LEASES, ETC. g^O granted, peaceably and quietly surrender and deliver up possession of the said premises hereby demised to the said part of the first part heirs, executors, administrators, or assigns. In Witness Whereof, The parties to these presents have hereunto set their hands and seals the day and year first above written. (^Signatures' {Seals.) Signed, Sealed, and Delivered in the Presence of (238.) Short House Lease in Use in Ontario and other Provinces. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and in pursuance of the act respecting short forms of leases between (name, residence, and occupa- tion of the lessor) hereinafter called the lessor of the first part, and (name, residence, and occupation of the lessee) hereinafter called the lessee of the second part, Witnesseth, That in consideration of the rents, covenants, and agree- ments hereinafter reserved and contained on the part of the said lessee executors, administrators, and assigns, to be paid, observed, and performed, he the said lessor ha demised and leased, and by these presents do demise and lease unto the said lessee, executors, administrators, and assigns, all th certain (describe the premises leased with sufficient minute- ness to define thetn perfectly). Together with all the rights, members, and appurtenances whatsoever to the said premises belonging or appertaining. To Have and to Hold the said demised premises, with their appur- tenances, unto the said lessee, executors, administrators, and assigns, for and during the term of to be computed from the , day of one thousand eight hundred and and from thenceforth next ensuing, and fully to be completed and ended, yielding and paying therefor yearly and every year, during the said term hereby granted unto the said lessor, heirs, executors, administrators, or assigns, the sum of dollars of lawful money of Canada, to be payable on the following days and times ; that is to say, on the days of and in each year during the said term, the first of such payments to become due, and be made, on the day of next, and the last of such payments to be made in advance, on the day of payment of rent preceding the expiration of the said term. And the said lessee covenant with the said lessor to pay rent, and to pay taxes, and to repair (reasonable wear and tear, and accidents by fire or tempest excepted), and to keep up fences, and not to cut down timber ; and that the said lessor may enter and view the said repair ; and that the said lessee will repair according to notice, and will not assign or sublet without leave and will not carry on any business that shall be deemed a nuisance 6so LEASES. on said premises ; and that he will leave the premises in good repair. {If there are any other agreements between the parties, they should be inserted here.) And also, that if the term hereby granted Shall be at any time seized, or taken in execution, or in attachment, by any creditor of the said lessee, or jf the said lessee shall make any assignment for the benefit of creditors, or, becoming bankrupt or insolvent, shall take the benefit of any act that maybe in force for bai.krupt or insolvent debtors, the said term shall immediately become forfeited and void, and the full amount of the current rent shall be at once due and payable ; and also, that if the said premises be destroyed, or so much injured as to become unfit for occupation, by fire or other casualt)', not caused by the wilful default or neglect of the- said lessee, his executors, administrators, or assigns, the said term hereby demised sh^l' cease, and the current rent shall be fully apportioned, and the due proportionate part thereof shall be at once due and payable. Proviso for re-entry by the said lessor on non-payment of rent or non- performance of covenants, or seizure or forfeiture of the said term for any of the causes aforesaid ; the said lessor covenant with the said lessee for quiet enjoyment. In Witness Whereof, The said parties to these presents have hereunto set their hands and seals. Signed, Sealed, and Delivered in the Presence of ■ (239.) Xease of Land in use Generally. This Indenture, Made the day of in the year of our Lord one thousand eight hundred and between [iiaini, residence, and occupation of the lessor) of the one part, and {name, residence, and occupation of the lessee) of the other part, Witnesseth, That for and in consideration of the rents, covenants, agree- ments, and provisos hereinafter reserved and contained, and which by and on the part and behalf of the said executors, administrators, and assigns, are to be paid, kept, done, and performed, h* the said ha granted, demised, leased, set, and to farm letten, and by these presents do grant, demise, leas.e, set, and to farm let, unto the said exec- utors, administrators, and assigns, all that tract, piece, or parcel of land situate, lying, and being on lot or township number in the County of and the Province of bounded and described as follows ; that is to say {fiere describe the premises leased) containing, by estimation, acres, be the same a little more or less, together with all buildings, woods, underwoods, ways, waters, watercourses, profits, com- modities, privileges, advantages, and appurtenances whatsoever to the said premises belonging, or in anywise appertaining. To Have and to Hold the said tract, piece, or parcel of land, and prein- FORMS .OF LEASES, ETC. gc-I ises hereby demised, Vith their appurtenances, unto ithe said : executors, .adnunistratots,,and assigns, from.the day of for and during and until the full end and term of years from -thence next ensuing, and fully to he complete and ended ; ^subject, neverthe- less, to the quit-rents to become due, exceptions, reservations, covenants, easements,. and conditions in the originaligrant or letters-patent of the said reserved and contained. Yielding and paying therefor yearly, and in every year during the said term hereby granted, unto the said heirs or assigns, the clear yearly rent, or sum of without making any deduction or abatement whatever for or in respect of any present or future quit-rents, land taxes, pr other parlian»entary, legislative, colonial, or , parochial taxes, assessments, payments, .or inipositions whatsoever, by yearly payments ; that is to say, on the day of in every year, the -first payment to become due and be' paid on day of . And the said do rfor heirs, exec- utors, and administrators, covenant, promise, and agree to and with the said heirs and assigns, in manner following ; that is to say, that the said executors, administrators, and assigns, shall and will, from time to time, and at all times during the continuance of the term hereby granted, well and truly pay, .or cause to be paid, unto the said heirs and assigns, the said yearly rent hereby reserved, upon the days and times, and in the manner hereinbefore mentioned for the payment of the same, according to the true intent and meaning of these presents. And also, " itbe ^aid executors, administrators, and assigns, shall and will pay, satisfy, and discharge, or cause to be paid, satisfied, and dis- charged, all and all manner of quit-rents, land taxes, and other pariiamen- tary, legislative, or parochial taxes, rates, assessments, payments, or irnpp-- «itions whatsoever, now or at anytime hereafter during the said term hereby demised, payable, or to become payable, for or in respect of the said prem- isesj or any part of them, or the said yearly rent or any part thereof. Provided al-ways, nevertheless, and these presents are upon this express condition, that if the said yearly rent hereinbefore reserved, or any part thereof, shall be in arrear for the space of after the same ought to have been paid as aforesaid (although no legal or formal demand shall have been made for the same), that then, and in every such case, and at all times heceafter, it shall and may be lawful to and for the said heirs and assigns, either to sue or distrain for the same, or into or upon the said demised premises, or into any part thereof, in the -name of the whole, wholly to re-enter, and the same to have again, retain, repossess, and enjoy, as in former state ; and the said and other occupiers and possessors thereof, thereout and from thence utterly to expel, put out, and remove, anything hereinbefore contained to the contrary thereof in any, wise notwithstanding. And the said for heirs and assigns, do hereby covenant, promise, and agree to and with the said executors, administrators, and assigns, that paying tlie said yearly rent 652 MORTGAGES OE PERSONAL PROPERTY. hereby reserved, and performing the covenants and agreements hereinbefore mentioned and contained, and which on part and behalf are or ought to be paid, done, and performed (subject, nevertheless, as aforesaid), shall and may peaceably and quietly have, hold, use, occupy, possess, and enjoy the said hereby demised premises, with the appurtenances, for all the term hereby granted, without the lawful let, suit, trouble, denial, eviction, ejection, interruption, or disturbance whatsoever, of, from, or by the said heirs or assigns, or of, from, or by any other person or persons lawfully claiming or to claim the said hereby demised premises, or any part or parcel thereof. In Witness Whereof, I, the said (name of lessor), have hereunto sub- scribed my name and affixed my seal, at on the day of in the year of our Lord {Name of grantor^ (Seal.) Executed attd Delivered in the Presence of CHAPTER XXXII. MORTGAGES OF GOODS AND CHATTELS, OR PERSONAL PROPERTY. Mortgages are now often made of personal property. Any Instrument will answer the purpose, which would suffice as a bill of sale of the property, and which contains, in addition to the words of sale and transfer, a clause providing for the avoid- ance of it when the debt is paid. I append to this chapter forms for this purpose. When the mortgagor of personal property retained possession, it was formerly doubtful what security the mortgagee had. Now, however, it is generally provided by statute, that the mortgagor may retain possession, if the mortgage be recorded. These instruments should always be recorded according to the provisions of the statute of the State in which they are made ; although the general rule would apply to them, that they would operate without record as to all parties having notice or knowledge of them. The statutes respecting mortgages of personal property always provide for an equity of redemption, which is usually very much shorter than that of land. A frequent period is sixty days. The requirements of the statute in respect to notice, foreclosure, etc., must be strictly followed. MORTGAGE OR PLEDGE OF PERSONAL PROPERTY. 653 It used to be thought that a personal mortgage might be made to cover property subsequently acquired by the mortgagee. Thus, a dealer in dry goods would mortgage all his stock to secure some creditor, and provide in the mortgage that it should operate upon all his goods and merchandise subsequently acquired by him. But it has been held that such a clause has no effect ; because no man can make a mortgage of property which he does not own at the time. We give annexed to this chapter the laws of all the States relating to mortgages of personal property. THE PLEDGE OF PERSONAL PROPERTY. A PLEDGEE is bound to take ordinary (not extreme) care of the thing pledged; and, if it be lost or injured for want of such care, he is answerable. He cannot use it, except at his own peril; that is, he is liable for any injury caused by using it, even if it was not his fault. If the thing — as a horse — needs use for its own safety, then the pledgee may use it for this pur- pose, and is liable only for an injury caused by his negligence. He must account with the pledgor for the income, increase, or profits. One difference between a mortgagee and a pledgee is this : A mortgagee need not take possession, for the mortgagor may retain it, and now this is provided for, as we have seen, by recording the mortgage. But if a thing is given in pledge, the pledgee must ha^le and keep possession of it. The most important difference is this. A mortgagee may sell and transfer his mortgage, and his transferee may transfer it again, and so on ; and when the debt is paid, the mortgagor reclaims it from whonisoever has it then. But if a pledgee sells the pledge before the debt is due, it is held that he is at once answerable to the pledgor for its full value, although the debt be not paid. Some cases of this kind have been carried very far in New York. It is held there, — and on grounds which may perhaps suffice to make it law everywhere,— that if A lends money to B, and takes stocks in pledge, A cannot sell these stocks and keep the proceeds, and replace the stock and return it when 654 MORTGAGES OF PERSONAL PROPERTY. the debt is paid. He can do nothing, but keep the stock ; and if he sells it^ the pledgor may recover at once its full value, and the pledgee will have no security for his debt. In such a case, a pledgee, being sued« offered the testimony of brokers and others to prove a uniform and established usage in the city of New York thus to sell or use pledged stock until the debt was paid ; but the court said the usage was illegal^ and refused to receive the evidence. It is certain that after the debt is due and payable, and after demand if it be payable on demand, the pledgee may have a decree in chancery for a sale of the pledge, or may sell it Yivxis^A: provided^x^ first gives a reasonable notice to the pledgor, and then sells it, after a reasonable delay, in a proper manner, by a public sale at auction ; and uses all reasonable precautions to get its value, as by advertisement, etc. ; and does not buy it himself, directly or indirectly; and conducts himself in all respects honestly ; and then he must account for the proceeds. Sometimes the parties agree, when the pledge is given, or afterwards, how the pledge shall be treated, or how sold if not • redeemed, etc. ; and such agreements, if fair and reasonable, would undoubtedly be binding on both parties. It is agreed that negotiable paper is excepted from the common rule; and the pledgee of that may sell or discount it- before the debt is due ; and must account for it, or its proceeds, if the debt' is paid and the paper redeemed, or for the balance if he applies it to payment of the debt. A loan of stock is not like a fledge of stock, because it authorizes the borrower to sell or pledge it, or use it in any. way, at any time ; but he must replace and return the same quantity of the same stock; when it is called for. If he could not thus make use of the stock, the loan of it would be of no benefit whatever to the borrower. But he cannot thus use stock pledged to him, unless by a special agreement which permits this use. A pledgee, who receives a pledge to secure one or more specific debts, cannot retain it to secure other and further debts of the pledgor, unless with his consent. This consent • may be express, or implied from words or circumstances which show that such was the understanding of the parties. FORMS OF MORTGAGES OF PERSONAL PROPERTY. 655. '(240.) A' Mortgage of Personal Property. Know ftU Men by these Presents, That I {name of mortgagor) of tha t6wn of' County of and State of foi: and in consideration of dollars, to me in hand'paid by {nami of mortgagee) of the'townof County of and State aforesaid, do sell and convey to tKe said {name of mortgagee) the following goods and chattels, to wit {list or schedule of the articles, specifying them with sufficient distinctness to make it certain what they are) warranted free of incumbrance; and against any adverse claims : Upon condition, that if the said {nameof the mortgagor) pay to thie said («aw«^ of the mortgagee) dollars and interest; in year' , agreeably to a promissory note of this date, for that sum, payable to the said {name of mortgagee) or order, on demandj ■with interest, this deed-shall bevoid; otherwise in full force and effect. The aforesaid Parties Agree, That, until the condition' of this instru- ment is broken, the said property may remain in possession of the said {name of mortgagor), but after condition broken the said {name of 7nortgagee) may at his pleasure take and remove the same, and'may enter into any building or premises of the said {name of the mortgagor) for that purpose. Witness our hands and, seals this, day. of A.D. (Signature of mortgagor^ {Seal.) {Signature of mortgagee.) {Seal.) Sealed and Delivered in the Ptesence of State of ■> xss. County opj ) Bie it Remembered; That on this dayof ' eighteen hundred and before me, the undersigned. Notary Pub- lic in and for said County and State, duly commissioned and qualified, came who is 'known to me to be the same person whose name is sub- scribed to the foregoing instrument of writing; as party thereto, and he aeknowledged the same to be his act and deed, for the purpose therein men- tioned. In Testimony Whereof, I have hereunto set my h^nd and affixed my official seal, at office, in the city of the day and year last afore- said. Notary Public. (241.) A Mortgage of Personal Property, with "Wajranty. Know all Men by these Presents, That I, {name and residence of mortgagor) in consideration of the sum of to nje in hand paid by {name and residence of mortgagee) 'Cci^ receipt whereof is hereby acknowl- 6$6 MORTGAGES OF PERSONAL PROPERTY. edged, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said {name of mortgagee) the following articles of personal property ; that is to say {list or schedule as in Form 240). To Have and to Hold all and singular, the said goods and chattels, unto the said {name of the mortgagee) and his executors, administrators, and assigns, to his and their use forever. And I the said mortgagor, for myself and for my executors and administrators, do covenant to and with the said mortgagee, and with his executors, administrators, and assigns, that I am lawfully pos- sessed of the said goods and chattels, as of my own property ; that the same are free from all incumbrances, and that I will, and my execu- tors and administrators shall, warrant and defend the same to the said mort- gagee, his executors, administrators, and assigns, against the lawful claims and demands of all persons. Provided Nevertheless, That if the said mortgagor, his executors or administrators, shall well and truly pay unto the said mortgagee, his execu- tors, administrators, or assigns, the sum of dollars, in months from the date hereof {or on a certain day, stating the day when the money is to be paid) with interest at per cent., then this deed, as also a certain promissory note bearing even date herewith, signed by the said mortgagor, whereby he promises to pay the said mortgagee the said sum and interest at the time aforesaid, shall both be void ; otherwise shall remain in full force and virtue. And Provided Also, That until default by the said mortgagor, or his eyecutors and administrators, in the performance of the condition aforesaid, or of some part thereof, it shall and may be lawful for him or them to keep possession of the said granted property, and to use and enjoy the same ; but in case of such default, or if the same or any part thereof shall be attached, at any time before payment as aforesaid, by any other creditor or creditors of the said mortgagor, or if the said mortgagor, or his executors or adminis- trators, shall attempt to sell the same, or any part thereof, without notice to the said mortgagee, or his executors, administrators, or assigns, and without his or their assent to such sale in writing expressed, or shall remove the same, or any part thereof, from the place in which they now are, without such notice and assent, then it shall be lawful for the said mortgagee, or his executors, administrators, or assigns, to take immediate possession of the whole of said granted property, to his and their own use. In Testimony Whereof, I have hereunto set my hand and seal this day of in the year of our Lord one thousand eight hundred and {Signature.) {Seal.) Executed and Delivered in the Presence of FORMS OF MORTGAGES OF PERSONAL PROPERTY. 657 (242.) A Mortgage of Personal Property, •with a Power of Sale. Know all Men by these Presents, That I, {name of mortgagor) of the town {or city) of in the County of and State of , in consideration of dollars, to me paid by {name of mortgagee) of the town {or city) of in the County of and State of the receipt whereof is hereby acknowledged, do hereby grant, bargain, and sell unto the said (name of mortgagee) and his assigns, forever, the following goods and chattels, to wit {list or schedule, as in Form 240). To Have and to Hold, All and singular the said goods and chattels unto the mortgagee herein, and his assigns, to their sole use and behoof forever. And the mortgagor herein, for himself and for his heirs, executors, and administrators, does hereby covenant to and with the said mortgagee and his assigns, that said mortgagor is lawfully possessed of the said goods and chattels, as of his own property ; that the same are free from all incumbrances, and that he will warrant and defend the same to him the said mortgagee and his assigns, against the lawful claims and demands of all persons. Provided, Nevertheless, that if the said mortgagor shall pay to the mort- gagee, on the day of in the year the sum of dollars, then this mortgage is to be void, otherwise to remain in full force and effect. And Provided Further, That until default be made by the said mort- gagor in the performance of the condition aforesaid, it shall and may be law- ful for him toTetain the possession of the said goods and chattels, and to use and enjoy the same ; but if the same or any part thereof shall be attached or claimed by any other person or persons at any time before payment, or the said mortgagor, or any person or persons whatever, upon any pretence, shall attempt to carry off, conceal, make way with, sell, or in any manner dispose of the same or any part thereof, without the authority and permission of the said mortgagee or his executors, administrators, or assigns, in writing expressed, then it shall and maybe lawful for the said mortgagee, with or with- out assistance, or his agent or attorney, or his executors, administrators, or assigns, to take possession of said goods and chattels, by enterins; upon any premises wherever the same may be, whether in this county or State, or else- where, to and for the use of said mortgagee or his assigns. And if the moneys hereby secured, or the matters to be done or performed, as above specified, are not duly paid, done or performed at the time and according to the condi- tions above set forth, then the said mortgagee, or his attorney or agent, or his executors, administrators, or assigns, may by virtue hereof, and without any suit or process, immediately enter and take possession of said goods and chattels, and sell and dispose of the same at public or private sale, and after satisfying the amount due, and all expenses, the surplus, if any remain, shall be paid over to said mortgagor or his assigns. The exhibition of this raort- 42 658 MORTGAGES OF PERSONAL PROPERTY. gage shall be sufficient proof that any person claiming to act for the mort- gagee is duly made, constituted, and appointed agent and attorney to do what- ever is above authorized. In Witness Whereof, The said mortgagor has hereunto set his hand and seal this day of in the year of our Lord one thou- sand ei^ht hundred and (Signature of mortgagor) {Seal.) Signed, Sealed, and Delivered in the presence of State of ^ V ss. County. ) This mortgage was acknowledged before me, by {the mort- gagor), this day of A.D. 18 (243.) Mortgage of Personal Property, -with Power of Sale- another Form. Kno-w all Men ty these Presents, That I (name and residence of mort- gagor) in consideration of the sum of to me paid by (name and residence of mortgagee) the receipt whereof is hereby acknowledged, have granted, bargained, and sold, and by these presents do grant, bargain, and sell unto the said (name of mortgagee) the following named and described articles of personal property ; that is to say (here follows the list or schedule and description of the articles mortgaged, as in Form 240). To Have and to Hold, All and singular, the said goods and chattels, unto the said (name of mortgagee) and his executors, administrators, and assigns, to his and their sole use forever. And I, the said mortgagor, for myself and my executors and administrators, do covenant to and with the said mortgagee and his executors, administrators, and assigns, that I am lawfully possessed of the said goods and chattels, as of my own property : that the same are free from all incumbrances ; and that I will, and my exec- utors and administrators shall, warrant and defend the same to the said mortgagee and his executors, administrators, and assigns, against the lawful claims and demands of all persons. Provided Nevertheless, That if the said mortgagor, or his executors or administrators, shall well and truly pay unto the said mortgagee, or his exec- utors, administrators, or assigns, the sum of then this deed, as also a certain promissory note bearing even date herewith, signed by the said mortgagor, wherebyhepromises topay the said mortgagee the said sum and interest at the time aforesaid, shall both be void, and otherwise they shall remain in full force and virtue. And Provided Also, That until default by the said mortgagor or his executors and administrators, in the performance of the condition aforesaid, or of some part thereof, it shall and may be lawful for him or them to keep ABSTRACT OF CHATTEL MORTGAGES. 659 possession of the said granted property, and to use and enjoy the same ; but in case of such default, or if the same or any part thereof shall be attached at any time before payment as aforesaid, by any other creditor or creditors of the said mortgagor, or if the said mortgagor, his executors or administra- tors, shall attempt to sell the same or any part thereof without notice to the said mortgagee or his executors, administrators, or assigns, and without his or their assent to such sale in writing expressed ; or shall remove the same, or any part thereof, from the place where they now are, without such notice and assent, then it shall be lawful for the said mortgagee, his executors, administrators, or assigns, to take immediate possession of the whole of said granted property to his or their own use, and to sell and dispose of the whole, or of so much of said granted property at public auction, as shall produce a sum of money sufficient to pay and discharge the above-mentioned debt or liability, with interest, and all costs and charges of keeping and selling the same, and all just and equitable liens then existing thereon, without further notice or demand, except giving day's notice of the time and place of said sale to said mortgagor or his legal representatives ; and after the said debt or liability, with interest, costs, charges, and liens, shall be so discharged and satisfied, the surplus of the money arising from said sale and the resi- due of said granted property, shall be paid and restored to said mortgagor or his legal representatives, discharged from all claim under this mortgage. In Testimony Whereof, I the said {name of mortgagor) have hereunto set my hand and seal this day of in the year of our Lord one thousand eight hundred and {Signature.) {Seal.) Executed and Delivered in Presence of ABSTRACT OF THE LAWS OF THE STATES, CON- CERNING CHATTEL MORTGAGES. ALABAMA. — Personal property may be mortgaged, but, to be good against creditors and purchasers without notice, it must be recorded in the county where the grantor lives, and also in the county where the property is at the lime of conveyance. Mortgages of personal property usually contain powers of sale, and are foreclosed according to the provisions of the mortgage. 66o MORTGAGES OF PERSONAL PROPERTY. ABKANSAS.— Chattel mortgages must be acknowledged before some person authorized by law to take acknowledgments, and recorded in the county where the mortgagor resides ; and are liens on the property mort- gaged only from such time. After condition broken, suit may be brought on the mortgage, and judgment rendered for the sale of the property and the recovery of the debt against' the defendant personally ; and the sale shall be on three months credit, the purchaser to execute a bond with good surety. CAIilFOMTIA. — The following property may be mortgaged : i. Loco- motives and rolling stock of a railroad company. 2. Steamboat machinery, and machinery u.sed by machinists, foundrymen, and mechanics. 3. Steam- engines and boilers. 4. Mining machinery. 5. Printing presses and mate- rials. 6. Professional libraries. 7. Instruments of surgeons, physicians, and dentists. 8. Upholstery and furniture used in hotels and boarding- houses, for the purchase-money of the articles mortgaged. 9. Growing crops. 10. Vessels of more than five tons burden. The mortgage is void against creditors, unless accompanied by an affidavit of all the parties that it is' made in good faith, and without any design to defraud creditors, and unless it is acknowledged and recorded in the same manner as a deed of real property, in the ofiRce of the Recorder for the county where the mort- gagor resides, and also where the property is situated. Chattel mortgages may be foreclosed as in the case of pledges, after demand ; the mortgagee must give notice of the time and place of sale, which must be by public auction, and after deducting the amount due on the mortgage, he must return the balance to the mortgagor. Or he may foreclose by action, and the court, by its judgment, may direct a sale of the property or of so much as may be necessary, and the application of the proceeds of the sale to the payment of the amount due, and all costs and expenses ; and any surplus is to be returned to the court ; and the mortgagee may be authorized to purchase at the sale. COLORADO. — The property must be delivered to the mortgagee, or the mortgage acknowledged before an officer in the precinct where the parties reside, or where the property is, and recorded in the county where the prop- erty or a greater part is, and it is then valid for two years. When chattel mortgages are in the form of trust deeds, theycontain a power of sale by the Trustee at public auction, on giving certain days notice. Otherwise there is no statute provision in regard to foreclosure. CONNECTICUT.— Where the property is retained by the mortgagor, the mortgage, to be valid, must be executed, acknowledged, and recorded in like manner as a deed of real property. The mortgage must be foreclosed by a suit in equity, and the court may order the same or any part thereof to be sold, and the excess is to be paid to the mortgagor. DELAWAEE. — Chattel mortgages must be acknowledged and recorded within ten days, and the lien continues for three years. Mortgages are ABSTRACT OF CHATTEL MORTGAGES. 66o* -foreclosed by intervention of court, and there is no redemption of the prop- erty sold. FLORIDA. — Unless the property mortgaged is delivered to the mort- gagee, the deed must be executed in the same manner as deeds of real property (see Deeds, etc.), and recorded in the office of records for the county where the property is at the time of the execution of the mortgage. The mortgage is foreclosed by petition to t!ie Circuit Court for the county where the property is, two months before the term of the court, at which judgment may be rendered. When the properiy remains with the mort- gagor, the mortgagee may, by making an affidavit of the amount due, have a writ of attachment, the officer to hold the property until the decree of fore- closure is entered. GEOP.GIA. — The mortgage must clearly indicate the creation of the lien, specify the debt and the property to be secured. It must be executed in presence of, and attested or i^roved by or before, a Notary Public, or a Judge or Clerk of Court, and recorded within three months in the county where the mortgagor resides, or if a non-resident, in the county where the property is; but record at any time is due notice. In order lo foreclose, the mortgagee must go before a proper officer (any Notary, Justice of tlie Peace, or Commissioner for Georgia, if he be a non-resident), and make an affidavit of the amount due, which affidavit shall be affixed to the mortgage, and the mortgage filed in the office of the Clerk of the Superior Court for the county where the mortgagor resides ; and the clerk shall there issue an execution directing the sale of the property. The Sheriff shall levy on the property, and after advertising weekly for eight weeks may sc'.l the same. IlilillTOIS. — Mortgages of personal property are not' valid unless the property is delivered to the mortgagee, or unless the instrument is acknowl- edged before a justice of the peace in the district where the mortgagor resides, and recorded in the county where he resides, or if he is a r.on-resi- dent, in the county where tlie property is. Chattel mortgages usually con- tain a power of sale by the sheriff of the county where the property is, in which case the sheriff may execute the power by giving legal notice of thirty days, and selling the same as therein directed, and he may execute all proper conveyances ; and the mortgagee is authorized to purchase at such sale. INDIANA.— If the goods are not delivered, the mortgage must be acknowledged in the same manner as deeds of real property, and recorded in the county where the mortgagor lives. The mortgage is deemed of record from the time it is left with the recording officer. There is no strict fore- closure. The mortgagee is entitled to possession of the property on breach of the condition, and may bring an action to recover the same. IOWA. — The mortgage is not valid unless it is in writing, signed, acknowledged, and recorded in the county where the holder of the property resides. Chattel mortgages for the payment of money only, and where the 66l ABSTRACT 0*F PERSONAL PROPERTY. time of payment is fixed, may be foreclosed by notice and sale. The notice must contain a full description of the property, and the time and place of sale, with the terms of the same ; such notice to be served on the mort- gagor, and afterwards published in the same manner as in case of sale of property on execution, and the purchaser takes all the title and interest in the mortgaged property. KANSAS.— Unless the property be delivered to the mortgagee, the mortgage, or a copy of it, must be deposited in the office of the Register of Deeds for the county where the mortgagor resides, or where the property is if he is a non-resident, and an affidavit must be filed each year by the mort- gagee, stating that his interest is a continuing one. The mortgage need not be acknowledged. After condition broken, the mortgagee or his as- signee may proceed to sell the mortgaged property, or so much thereof as is necessary to satisfy the mortgage, having first given notice of the time and place of the sale by written or printed handbills posted in at least four different places in the township or city in which the property is to be sold, at least ten days before the sale. KENTUCKY. — Chattel mortgages must be acknowledged and recorded in the office of the clerk of the court for the county where the property is. They may be foreclosed by bill in equity, the mortgagee taking possession; and the mortgagor has five years to redeem. liOXJISIANA. — Chattel mortgages are unknown. MAINE. — Mortgages of personal jsroperty for more than thirty dollars are not valid unless the pro'perty is delivered, or the mortgage is recorded by the clerk of the town where the mortgagor resides, or, if he is a non-resi- dent, in the town where the property is when the mortgage is made. After condition broken, the mortgagee or his assignee may give the mortgagor written notice of his intention to foreclose, by leaving a copy thereof with the mortgagor, or by publishing a copy once a week for three successive weeks, in one of the principal papers of the town where the mortgage is recorded. The notice, with an affidavit of service, or copy of the publica- tion, must be recorded where the mortgage is recorded ; and all right of redemption is forfeited within sixty days after such notice is recorded. MABYIjAND. — Mortgages and bills of sale must contain the names of the parties, the consideration, and a description of the property mortgaged ; they must be signed, sealed, and dated, and acknowledged and recorded in the coj^nty or city where the vendor resides, within twenty days after the date of the mortgage. The mortgage may be foreclosed in accordance with the terms therein expressed. The mortgagee shall first execute a bond to the State to abide by and fulfil any decree made by any Court of Equity in regard to the property. He must give notice in accordance with the terms of the mortgage, or if none are expressed in the mortgage, then twenty days notice of the time and place and terms thereof, by advertisement in a paper printed in the County where the property is. The sale shall be reported*to the Court and confirmed by it. ABSTRA CT OF CHA TTEL MOR TCA GES. 66 1 * MASSACHUSETTS.— Chattel mortgages must be recorded within fif- teen days after execution, on the records of the city or town where the mort- gagor resides, and also in the city or town in which he principally transacts- his business. If a non-resident, the mortgage may be recorded in the city or town where the property is. The mortgagee or his assigns, after condi- tion broken, may give to the mortgagor written notice of his intention to foreclose the same, which notice shall be served by leaving a copy with the mortgagor, or by publishing it at least once a week for three successive weeks, in one of the principal newspapers published in the town or city where the mortgage is jaroperly recorded. The notice with an affidavit of service shall be recorded wherever the mortgage is recorded, and the prop- erty may be sold in accordance with the terms of the instrument. The mortgagor may redeem, at any time within sixty days after the recording of the notice. MICHIGAN.— If not accompanied by delivery of the property mort- gaged, the mortgage, or a copy thereof, must be recorded in the office of the clerk of the city or town where the mortgagor resides, or, if he is a non-resident, where the property is ; and before the expiration of each year, the mortgagee must file an affidavit setting forth his interest in the property. There are no statute provisions in regard to foreclosure. Each mortgage should contain provisions as to its own foreclosure ; and such provisions will be carried into effect. MINNESOTA. — The mortgage must be made in good faith, and without intent to defraud creditors ; it must be acknowledged, and it, or a copy, filed in the city or town where the property is and also where the mortgagor re- sides. The mortgagee or his assigns, afler condition broken, may give written notice of his intention to foreclose, which may be served personally, or by publication once a week for three successive weeks in a newspaper printed and published in the county where the mortgage is recorded. The notice with affidavit of service shall be filed when the mortgage is filed, and foreclosure is complete, if no redemption is made within sixty days. Uut the mortgage may always be foreclosed and the projierty sold in accorc^ance with the special terms therein stated. MISSISSIPPI. — Mortgages of personal property must be recorded in the office of the clerk of the Court of Chancery for the county where the property is, and are notice to third parties from the date of record. In order to be recorded, they must be acknowledged. The mortgage should contain provisions as to foreclosure, sale, etc , and may be foreclosed in accordance with the terms expressed in the same. MISSOURI.— Unless the property is delivered, the mortgage must be acknowledged or proved, and recorded in the county where the mortgagor resides. Mortgages with power of sale may be foreclosed in accordance with such power, and such sale bars the right of redemption. All mortgages in which the debt, exclusive of interest, does not exceed one hundred dol- 662 MORTGAGES OF PERSONAL PROPERTY. lars, may be foreclosed by sale of the property by the mortgagee, he first giving sixty days notice after default that the property will be sold, and thirty • days notice of the time and place of sale. All other mortgages may be fore- closed by petition to the Circuit Court, and the court may give judgment and decree a sale of the incumbered property. NEBHASKA. — The property must be delivered, or else the mortgage, or a copy, filed in the office of the county clerk, and each year within thirty days before the expiration thereof the mortgagee must file in the same office a copy of the mortgage, and a statement showing his intere.st in the same. A mortgage with power of sale may be foreclosed after condition broken by giving notice of the time and place of the sale, at least twenty days before such sale. The notice shall specify the mortgage, parties, the amount due, and description of the property, and shall be published in some newspaper in the county where the property is, or, if no newspaper is published in said county, then by posting up notice in at least five public plices in the county. The sale shall be by public auction. NEVADA. — Chattel mortgages are allowed, but the property must be delivered to the mortgagee. The mortgage is foreclosed by auction, with judgment for the amount due, and a decree of sale of the property and appli- cation of the proceeds to the payment of the debt. NEW HAMPSHIRE.— Possession must be delivered to and retained by the mortgagee, or thejnortgage recorded with the clerk of the town where the mortgagor resides ; and both parties must make affidavit that the mort- gage is made in good faith, and to secure an existing debt. The mortgagee at any time after thirty days from the time the condition is broken, may sell the mortgaged property at auction, notice of the time, place, and purposes of the sale, "being posted at two or more public places in the town in which the sale is to be, at least four days prior thereto. The mortgagee shall notify the mortgagor at least four days prior to the sale. He may purchase at such sale ; and the mortgagor may redeem at any time before the sale. NEW JERSEY. — Unless accompanied by delivery of the property, the mortgage, or a copy thereof, must be filed in the clerk's office for the county where the mortgagor resides, or, if he is a non-resident, in the county where the property is. If there is a Registry of Deeds in the county, the mortgage must be filed in such Registry; and every year, within thirty days next pre- ceding its expiration, the mortgagee must file, in the same office, a true copy of the mortgage and a statement showing his interest in the property. The foreclosure is by suit in equity; and there is no redemption. NEW YORK.— The mortgage, or a true copy, must be filed in the office of the county clerk, registrar, or town clerk, as the case may be, where the mortgagor resides, or, if a non-resident, where the property is; and every year, within thirty days before the expiration of the same, the mortgagee must file a copy of the mortgage, and an affidavit showing his interest in the property. The mortgage need not be under seal. The mortgagee may take ABSTRACT OF CHATTEL MORTGAGES. 662* possession of the property after condition is broken, and sell the same either at private sale or by public auction. Any sale fairly made will be upheld by the court. It is customary to give three days public notice, if the sale is by auction, and the mortgagor may redeem at any time before sale, but not after. If the mortgage contain terms or provisions as to foreclosure, sale, etc., the foreclosure will be governed by them. WORTH CAROLINA.— Mortgages are not valid unless recorded in the county where the mortgagor resides, or if he is a non-resident, in the county where the property is. On breach of condition the mortgagee may proceed to sell at auction, first giving twenty days notice in three public places ; and he must return any surplus money to the mortgagor. OHIO. — If the property is not delivered, the mortgage is absolutely void, unless it is filed in the ofHce of the clerk of the township where the mort- gagor resides, or where the property is if he is a non-resident ; and the mort- gagee must file a statement of his claim in dollars and cents, and that it is unpaid ; and a copy of the mortgage and affidavit must be filed each year. There are no provisions in regard to foreclosure of chattel mortgages as dis- tinguished from other mortgages. Any provisions or terms in the mortgage would be carried into effect. The mortgagee is entitled to possession any use of the property. OREGON. — The mortgage, or a copy thereof, must be recorded in the office of the county clerk, and every year, within thirty days before the expi- ration of the same, a copy must be filed, and a statement of the mortgagee's interest. After condition broken the mortgagee is entitled to possession, and he may recover the same by suit, on making an affidavit of all the facts and the value of the property ; and the sheriff will hold the property to await the disposition of the suit. The mortgage may provide how it shall be fore- closed, in which case that method and no other, shall be followed. PENNSYLVANIA.— With the following exceptions, personal property mortgaged must be delivered to the mortgagee. The exceptions referred to are : Leases of collieries, factories, and other premises, saw-logs, sawed lumber, lath, pickets, shingles, hewn timber, spars, and petroleum, or coal-oil, crude and refined, in tanks, reservoirs, barrels, and other receptacles, in bulk ; iron tanks and tank-cars ; iron ore mined and prepared for use, pig- iron, blooms, rolled or hammered iron, in sheets or bars ; manufactured slate, and canal boats. The mortgage must be for not less than five hundred dol- lars, in writing, signed by the grantor, and acknowledged and recorded in the county where the mortgagor resides, or where the property is if he is a non- resident; and every year, within thirty days before the expiration thereof, the mortgagee must file a statement specifying the amount due. After the money is due the mortgagee may, after thirty days notice to the mortgagor, either personally or by public advertisement, inserted four times at intervals of one week, in some daily newspaper, if any, or if not, in a weekly paper published in the county where the mortgage is recorded, proceed to sell the 663 MORTGAGES OF PERSONAL PROPERTY. property at public auction. The mortgagor may redeem at any time before the sale. RHODE ISLAND. — Unless the properly is delivered to and retained by the mortgagee, the mortgage must be recorded in the office of t'le clerk of the town wheie the mortgagor resides, or where the property ij if he be a non-resident. The mortgagee may take possession after condition broken. If there are any provisions in the instrument, the property may Le sold in accordance therewith. Redemption at law may be had at any time v/ithin sixty days after breach, unless the property has been sold as above. The equity may be foreclosed by bill, and the Court of Chancery will decide as in any suit in equity. SOUTH CAROLINA.— The mortgage must be recorded, within sixty days, in the office of the Register of Mesne Conveyances in the county where the mortgagor resides, or, if he be a non-resident, where the property is. The mortgagee may take possession of the property after breach of con- dition, and sell the same. The equity of redemption is lost unless the prop- erty is redeemed within two years after breach. TENKTESSEE. — Mortgages must be proved and registered in the county where the mortgagor resides. If the mortgage contains a power of sale, it may be foreclosed in accordance therewith; if not, it is foreclosed by bill in equity and decree therein. TEXAS. — The mortgage must be recorded in the office of the clerk of the court for the county where the property shall remain. The mortgage is fore- closed by suit. The mortgagee must make affidavit of the amount due, which is annexed to the mortgage ; and thereupon execution is issued. The sheriff may then levy and sell, after giving sixty days notice in some public gazette. There is no redemption after the sale. VERMONT. — Machinery attached and used in any shop, mill, printing office, or factory, may be mortgaged by deed executed, acknowledged, and recorded in the same manner as deeds of real estate (see Deeds, etc.); other personal property must be delivered to the mortgagee. The mortgage may be foreclosed by bill in equity, or by petition to the Court of Chancery, on which after hearing the court may order that the equity be foreclosed, unless the mortgagor pay the debt and all costs within a certain time, not more than one year. A copy of the record or decree of foreclosure must be tiled in the town clerk's office where the property is, within thirty days after the time for redemption has expired. VIRGINIA. — Chattel mortgages are executed, acknowledged, and recorded in the same manner as deeds of real estate (see Deeds). A scroll answers for a seah Chattel mortgages are usually given as deeds of trust, in which case they may be foreclosed by the trustee according to the terms of the mortgage, without the intervention of the courts. WEST VIRGINIA. — Chattel mortgages require the same formalities as deeds of real estate ; must be executed under seal or scroll, acknowledged, JVIfO IS ENTITLED TO A PATENT. 663* or else proved by two witnesses, and recorded in the county where the prop, erty is. Chattel mortgages are seldon used, but are foreclosed in Court ol Equity after decree. Deeds of trust usually take their place, and after default, the trustee may sell the property, after due notice, without recourse to the courts. WISCONSIN. — The mortgage, or a copy, is to be filed in the office ol the clerk of the town or city where the mortgagor resides, or, if he is a non- resident, where the property is ; and each year, within thirty days before the expiration thereof, the mortgagee must file a statement showing his interest in the same. After condition broken the property becomes the property ot the mortgagee, and he may reduce it to possession. He may sell the same, and any surplus over the debt and costs, must be returned to the mortgagor. CHAPTER XXXIII. THE LAW OF i>ATENTS. WHAT MAY BE PATENTED. Any new and useful art, machine, manufacture, or composi- tion of matter, or any new and useful improvement thereof not before known or used by others in this country, and not at the time patented or described in any printed publication in this or any foreign country. And any new and original design for a manufacture, bust, statue, alto-relievo, or bass-relief, or any new and original im- pression, ornament, pattern, print, or picture to be placed on or worked into any article of manufacture ; or any new and original shape or configuration of any such article, the same not having been known or used by others before the application for a patent. WHO IS ENTITLED TO A PATENT. Any person, whether citizen or alien, may obtain a patent for any invention or improvement made by him, and not before known. In case of the death of the inventor, the patent may be applied for by, and will issue to, his legal representatives. 664 THE LA IV OF PA TENTS. Joint inventors are entitled to a joint patent; but neither can claim one separately. WHAT WILL PREVENT THE GRANTING OF A PATENT. Although an applicant may have actually made an invention, a patent therefor will not be granted him if the whole or any part of what he claims as new has been patented, or described in any printed publication in this or any foreign country, or been before invented or discovered in this country, nor if he has once abandoned his invention to the public, nor if it has been for more than two years in public use or on sale ; but the mere fact of prior use, invention, or discovery abroad, will not prevent the issue of the patent, unless the invention has been there patented, or described in some printed publication. Merely conceiving the idea of an improvement or machine is not such an "invention" or "discovery" as is above contem- plated. The invention must have been reduced to a practical form, either by the construction of the machine itself or of a model thereof, or at least by making a full drawing of it, or in some other manner equally descriptive of its exact character, so that a mechanic would be enabled, from the description given, to construct a model thereof, before it will prevent a subsequent inventor from obtaining a patent. Mode of Proceeding to Obtain a Patent. APPLICATION. All applications must be completed for examination within two years after the filing of the petition ; and in default, all such will be regarded as abandoned, unless it be satisfactorily proved to the office that such delay was unavoidable. The application must be made by the actual inventor, if alive, even if the patent is to issue to an assignee ; but, where the inventor is dead, the application and oath may be made by the executor or ad- ministrator. The application must be in writing, in the English language, signed by the applicant, and addressed to the Com- missioner of Patents, Washington, D. C. The following is a suitable form, which may serve as a useful guide, but must be varied according to circumstances : FORM OF SPECIFICA TION. 65^ (244.) Form of Petition. To THE Commissioner of Patents : Your petitioner prays tliat a patent may be granted to him for the inven- tion set forth in the annexed specification. (Signature^ SPECIFICATION. The applicant must set forth in his specification the precisa. invention for which he claims a patent. In all applications for mere improvements, the specification must distinguish between what is admitted to be old and what is described and claimed to be the improvement, so that the office and the public may understand exactly for what the patent is granted. Two or more distinct and separate inventions may not be claimed in one application ; but where several inventions have a necessary and dependent connection with each other, so that all cooperate in attaining the end which is sought, they may be so claimed. If more than one invention is claimed in a single application, and they are found to be such that a single patent may not be issued to cover the whole, the inventor must divide the application into separate applications, or confine the claim to whichever invention he may elect. The specification must be signed by the inventor (or by his executor or administrator, if the inventor be dead). It should describe the sections of the drawings (where there are draw- ings), and refer by letters and figures to the different parts. The following may be taken as a specimen of the proper form of a specification to accompany the petition : (245.) Form, of a Specification to Accompany the Petition. To ALL WHOM IT MAY CONCERN : Be it known that I, of in the County of in the State of have invented a new and improved mode of preventing steam boilers, from bursting ; and I do hereby declare that the following is a full and exact description thereof, reference being had to the accompanying drawings, and to the letters of reference marked thereon. 666 THE LA W OF PA TENTS. The nature of my invention consists in providing the upper part of a steam boiler with an aperture in addition to that for the safety-valve, which aperture is to be closed by a plug or disk of alloy, which will fuse at any given degree of heat, and permit the steam to escape, should the safety-valve fail to perform its functions. To enable others skilled in the art to make and use my invention, I will proceed to describe its construction and operation. I construct my steam boiler in any of the known forms, and apply thereto gauge-cocks, a safety- valve, and the other appendages of such boilers ; but, in order to obviate the danger arising from the adhesion of the safety-valve, and from other causes, I make a second opening in the top of the boiler, similar to that made for the safety-valve, as shown at A, in the accompanying drawing ; and in this opening I insert a plug or disk of fusible alloy, securing it in its place by a metal ring and screws, or otherwise. In general, I compose this fusible metal of a mixture of lead, tin, and bismuth, in such proportions as ■will insure its melting at a given temperature, which must be that to which it is intended to limit the steam ; it will, of course, vary with the pressure the boiler is intended to sustain. I surround the opening containing the fusible alloy by a tube, B, intended to conduct off any steam which may be discharged therefrom. When the temperature of the steam in such a boiler rises to its assigned limit the fusi- ble alloy will melt and allow the steam to escape freely, thereby securing it from all danger of explosion. What I claim as my invention, and desire to secure by letters-patent, is the application to steam boilers of a fusible alloy which will melt at a given temperature and allow the steam to escape, as herein described, using for that purpose the aforesaid metallic compound, or any other substantially the same, and which will produce the intended effect. {Signature) ( Witnesses) When the application is for a machine, the specification should begin thus : Be it known that I, {name of inventor) in the County of ' and State of having invented a new and useful machine for [stating the use and title of the machine ; and* if the application is for an improve- ment, it should read thus : a new and useful improvement on a or on the machine, etc.] and I do hereby declare that the following is a full, clear, and exact description of the construction and operation of the same, reference being had to the annexed drawings, making a part of this specification, in which Figure i is a perspective view; Figure 2 a longitudinal elevation; Figure 3 a transverse section, etc., (thus describing all the sections of the drawings, and then referring to the parts by letters. Then follows the de- scription of the construction and operation of the machine, and lastly the claim, which should express the nature and character of the invention, and DRA WINGS. (£j identify tne parts claimed separately or in combination. If the specification is for an improvement, the original invention should be disclaimed, and the claim confined to the improvement). The specification must be signed by the inventor, and at tested by two witnesses. The applicant must make oath or affirmation, to be substan tially as follows : (246.) Form of Oath. City (or Town) of County of ) >- ss. State of 3 On this day of i8 , before me, the subscriber, a personally appeared the within named and made solemn oath (or affirmation) that he verily believes himself to be the original and first inventor of the mode herein described for preventing steam boilers from bursting, and that he does not know or believe the same was ever be- fore known or used ; and that he is a citizen of the United States [or citizen of other country, as the case may be]. {Signature^ Justice of the Peace. Citizens of the British Provinces should state specifically the provinces of which they are citizens, and not merely that they are subjects of the crown of Great Britain. The oath may be taken before any person authorized by law to administer oaths. The oath may be taken in a foreign country before any min- ister plenipotentiary, charg^ d'affaires, consul, or commercial agent, holding commission under the government of the United States, or before any notary public of the country in which the oath is taken, being attested in all cases by the proper official seal of such notary. Applicants for patents, upon paying the final fee, should notify the office how many copies of the specifi- cations they desire to have furnished them. DRAWINGS. The applicant for a patent is required by law to furnish a drawing or drawings, where the nature of the case admits of them. They should be neatly and artistically executed, in fast colors, generally in perspective, and with such detached sec- tional and plain views as to clearly show what the invention is, 668 THE LA W OF PA TENTS. its construction and operation. Each part must be distinguished by the same number or letter wherever it appears in the several drawings The name of the invention should be written at the top, the shortest side being considered as such. Each sheet should be fifteen inches from top to bottom, and ten inches across, that being the size of the patent, or it may be twenty inches across, so as to be folded. One of the drawings should be on thick drawing-paper, sufficiently stiff to support itself in the portfolios of the office, for which it is intended. Tracings upon cloth pasted on thick paper are not allowed. This must be signed by the applicant, and attested by two witnesses, and must be sent with the specification. The other duplicate need not be forwarded until the patent is ordered to issue, to which it is to be attached. It must have, for that purpose, a mar- gin of one inch on the right hand, and should be on tracing- muslin, which will bear folding and transportation, and not on paper. The above are the rules imposed by the office, being found necessary for the convenient transaction of their business. And applicants are advised to employ competent artists to make the drawings, as they will be returned if not executed in con- formity with these rules. Thick drawings should never be folded for transmission. MODEL. A model is required in every case where the nature of the invention admits of such illustration. It must be neatly and substantially made of durable material, and not more than one foot in length or in height. If made of pine or other soft wood, it should be painted, stained, or varnished. Models filed as exhibits, in interference and other cases, may be returned to the applicant, at the discretion of the commissioner. A working model is always desirable, in order to enable the office fully and readily to understand the precise operation of the machine. The name of the inventor, and also of the assignee (if assigned), and also the title of the invention, must be affixed upon it in a permanent manner. ,^ When the invention is a composition of matter, a specimen of each of the ingredients and of the composition must accom- OF THE EXAMINATION. 669 pany the application, and the name of the inventor and of the assignee (if there be one) must be permanently affixed thereto. When a work of design can be sufficiently represented by a drawing, in the judgment of the commissioner, a model will not be required by him. If photographs are used by the applicant for the illustration of works of design, they should be pasted upon thick drawing- paper, or thin Bristol-board, of the size prescribed for drawings ; but, in every case where this mode of illustration is employed by an applicant, he will do well to deposit in the office the glass or other " negative " from which the photograph is printed, so that exact official copies may be made therefrom when desirable. COMPLETION OF THE APPLICATION. No application is examined, nor is the case placed upon the files for examination, until the fee is paid, the model or speci- men deposited, and the specification, with the petition, oath, and drawings (when required), filed. It is desirable that every- thing necessary to make the application complete should be deposited in the office at the same time. OF THE EXAMINATION. All cases in the Patent Office are arranged in classes, which are taken up for examination in regular rotation ; those in the same class being examined and disposed of, as far as practicable, in the order in which the respective applications are completed. When, however, the invention is deemed of peculiar importance to some branch of the public service, and when, for that rea- son, the head of some department of the government specially requests immediate action, the case will be taken up out of its' order. These, with applications for re-issue, and for inventions for which a foreign patent has been issued, are the only excep- tions to the rule above stated in relation to the order of examination. When an application has been once rejected, either in whole or in part, and the applicant desires a second examination, either with or without amendment, he will be entitled to it with as little delay as may be practicable, so that he may be in con- 43 670 THE LA IV OF PA TENTS. dition to appeal, if desirable, without loss of time. When an application has been finally decided, the office will retain the original papers, furnishing the applicant copies — if he desires them — at the usual expense. When a patent is granted, it will be transmitted to the patentee, or to his agent, having a full power of attorney authorizing him to receive it. PROTESTS. The office cannot stay the regular proceedings on applica- tions for letters-patent in consequence of protests founded upon mere ex parte statements; but, where affidavits of disinterested persons are received, they will be considered and allowed such weight as they may seem entitled to. WITHDRAWALS. Although an application be rejected, no money paid thereon, nor for a design, nor for a re-issue, can be withdrawn from the patent office by the applicant. APPEALS. After an application for a patent has been twice rejected by the examiner having it in charge, it may, at the option of the applicant, be brought before the board of examiners-in-chief, on payment of a fee of ten dollars. For this purpose, a petition in writing must be filed, signed by the party or his authorized agent or attorney. (247.) Form of Appeal to the Examiners-in-Chief. To THE Commissioner of Patents. Sir, — I hereby appeal to the examiners-in-chief from the decision of the principal examiner in the matter of my application for a patent for an improvement in (here state the subject of the invention) rejected a second time on day of Respectfully, {Signature^ The examiners-in-chief will consider the case as it was when last passed upon by the primary examiner, merely revising his decisions so far as they were adverse to the applicant. APPEALS. 671 All cases which have been acted on by the board of examiners- in-chief may be brought before the commissioner in person, upon a written request to that effect, and upon the payment of the fee of twenty dollars required by law. A decision deliber- ately made and approved by one commissioner will not be disturbed by his successor. The only remaining remedy will be by appeal in those cases allowed by law to the judges of the Supreme Court of the District of Columbia. The mode of appeal from the decision of the ofifice to the judges of the Supreme Court of the District of Columbia is by giving written notice thereof to the commissioner, filing in the patent office, within thirty days after notice of the decision, reasons of appeal, and paying to him the sum of twenty-five dollars. Printed forms of notice of appeal, of the reasons of appeal, and of the petition, will be forwarded from the patent office to any one wishing to make an appeal, on his request. The following rules were adoptedby the Supreme Court in appeals from the decisions of the Commissioner of Patents, and they are given. here, as they may be useful guides to the appli- cant or his counsel. The party desiring to appeal from the decision of the Com- missioner of Patents must give written notice thereof to the commissioner, accompanied with his petition to the Supreme Court of the District of Columbia to grant him a hearing, and file the reasons of appeal, and pay the fee of twenty-five dollars. The appellant, previous to any action on, and preparatory to the hearing of any appeal, must comply with the requisites of the law in the patent office, and his petition must state con- cisely — 1. The- application for the patent ; 2. Its nature, and, if a case of interference, 3. The residence of the party interested ; 4. The commissioner's refusal; 5. The prayer of appeal ; •6. Notice thereof to the commissioner ; 7. The filing of the reasons of appeal in the patent office ; and, 8. The payment into the office of the sum required by law. 6/2 THE LA IV OF PA TENTS. To every petition must be annexed a certificate of the proper officer that the requisitions of the law have been com- plied with, or an affidavit of the truth of the facts stated in the petition. No notice to the commissioner will be issued until such certificate or affidavit be made or produced. The appeal will be tried upon the evidence which was in the case and produced before the commissioner. The appellant must file his argument, in writing, within five days after the commissioner shall send in his report, and the papers, models, and drawings or specimens, or within five days after the day of hearing, which argument must state the facts and law relied on, together with the authorities in support of the same. In contested cases the appellee shall file his argument, in writing, within ten days after the appellant shall have filed his argument. At the hearing, oral arguments may be made, not to occupy more than one hour for each counsel engaged, and not more than two counsel in each case will in any case be heard, and in no case will oral argument be heard unless the opposite party shall have reasonable notice thereof, through4he mail or otherwise, from the party desiring to be heard orally ; or where oral arguments are ordered by the court, the appellant shall give the notice. The court, having fully heard the appeal, shall return all the papers to the commissioner, with a certificate of its proceedings and decisions, which shall be entered of record in the patent office, and such decision, so certified, shall govern the further proceedings of the commissioner in such case. INTERFERENCES. When each of two or more persons claims to be the first inventor of the same thing, an " interference " is declared between them, and a trial is had before the examiner. Nor does the fact that one of the parties has already obtained a patent prevent such an interference ; for, although the commis- sioner has no power to cancel a patent already issued, he may, if he finds that another person was the prior inventor, give him INTERFERENCES. 673 also a patent, and thus place them oii an equal footing before the coufts and the public. If an applicant 'for a re-issue embraces in his amended specification any new or additional description of his invention, or enlarges his daim, or makes a new one, -and thereby Includes therein anything which has been claimed in any patent granted subsequent to the date of his -original application, as the invention of another person, an -interference will be declared between the application and any unexpired patent, or pending application, in which the same thing is claimed ; but not where such pending application for re-issue claims only what was granted in the original patent. When an application is found to conflict with a caveat, the caveator is allowed a period of three months withiii which to present an application, when an interference may be declared. In cases of interference, piatentees have the same remedies by -appeal as applicants in pending applicatrons. In contested cases, whether of interference or of •extension, parties may have access to the testimony on file, prior to the hearing, in ■presence of the officer in charge ; or, when practicable, copies may be obtained by them at the usual charges. 'in cases of interference, the party who first made oath to the invention will be deemed the first inventor in the absence of all proof to the contrary. A time will be assigned in which the other party shall Complete his direct testimony, and a further time in whicli the adverse party shall complete the testimony on his side ; and a still further time in which the first party shall close his rebutting testimony, but shall take no other. If there are more than two parties, the times for taking testimony shall be so arranged that each shall have a like oppor- tunity in his turn, each being held to go forward and prove his case against those who made oath to their applications before him. If either party wishes the time for taking his testimony, or for the hearing, postponed, he must make application for such postponement, and must show sufficient reason for it by affidavit filed before the time previously appointed has elapsed, if practicable; and must also furnish his opponent with copies of his affidavits, and with seasonable notice, of the time of hearing his application. 674 ^-^^ ^^ ^ ^^ ^^ TENTS. When an interference has been declared, and a new applica- tion claiming the invention in controversy comes into the office before the final determination of such interference, the new application will be included in the case, and the proper means will be taken to allow all the parties a fair hearing. The testimony taken by the original parties will be retained in the case, provided that due opportunity can be given the new appli- cant to cross-examine the witnesses. If, however, on the original interference, an appeal has been taken to the examiners- in-chief, before the new application is filed, such new applica- tion will be suspended until the decision in the original case, after which a new interference may be declared with the suc- cessful party. After an interference has been declared, another interference will not be declared upon a new application filed by either party unless it is shown to the satisfaction of the office that such party has new testimony which he could not have procured in time for the hearing, and which might change the decision. When an application is adjudged to interfere with a part only of another pending application, the interfering parties will be permitted to see or obtain copies of so much only of the specifications as refers to the interfering claims. And either party may, if he so elect, withdraw from his application the claims adjudged not to interfere, and file a new application therefor. In such case, the new application will be examined without reference to the interference from which it was with- drawn. RE-ISSUES. A re-issue is granted to the original patentee, his heirs, or the assignees of the entire interest, when, by reason of an insufficient or defective specification, the original patent is invalid, provided the error has arisen from inadvertence, acci- dent, or mistake, without any fraudulent or deceptive intention. The petition for a re-issue must show that all parties owning any undivided or territorial interest in the patent (irrespective of licenses) concur in the surrender. And a certified statement of the title of the party surrendering must be filed with the application. Whatever is really embraced in the original inven- FORM OF SURRENDER OF PA TENT FOR RE-ISSUE. 67S tion, and so described or shown that it might have been embraced in the original patent, may be the subject of a re-issue ; but an applicant will not be allowed th^ benefit of proof that there was more in his invention than is shown in his original' application, model, or specimens. Re-issued patents expire at the same time that the original patent would have done. For this reason, applications for re-issue will be acted upon immediately after they are com- pleted. A patentee may, at his option, have in his re-issue a sepa- rate patent for each distinct part of the invention comprehended in his original application, by paying the required fee in each case, and complying with the other requirements of the law, as in original applications. Each division of a re-issue constitutes the subject of a separate specification descriptive of the part or parts of the invention claimed in such division ; and the draw- ing may represent only such part or parts. One or more divisions of a re-issue may be granted, though other divisions shall have been postponed or rejected. In all cases of applica- tions for re-issues, the original claim is subject to re-examina- tion, and may be revised and restricted in the same manner as in original applications. The following are appropriate forms of application for re-issue : (248.) Form of Surrender of a Patent fdt Re-issue. To THE Commissioner of Patents : The petition of , of , in the County of and State of , Respectfully represents : That he did obtain letters-patent of the United States, for which letters-patent are dated on the first day of March, 1850; that he now believes that the same are inoperative and invalid by reason of a defective specification, which defect has arisen from inadvertence and mistake. He therefore prays that he may be allowed to surrender the same, and requests that new letters-patent may issue to him, "for the same invention, for the residue of the period for which the original patent was granted, under the amended specification herewith presented, he having paid thirty dollars into the treasury of the United States, agreeably to the requirements of the act of Congress in that case made and provided. (Siguaiure.) e^6 THE LAW OF PATENTS. (249.) Form of Oath to be appended to Applications for Re-issue. t City (or Town) of County of State of On this day of 18 , before the subscriber, a personally appeared the above-named and made solemn oath (or affirmation) that he verily believes that, by reason of an insufficient or defective specification his aforesaid patent is not fully valid and available to him, and that the said error has arisen from inadvertence, accident, or .mistake, and without any fraudulent or deceptive intention, to the best of his knowledge or belief. (Signature^ {Signed.) Applications for re-issues will not be kept secret ; and in- formation respecting the same will be furnished upon inquiry, as well as copies of the proposed claims for publication. DISCLAIMERS. Where, by inadvertence, accident, or mistake, the original patent is too broad, a disclaimer may be filed either by the original patentee or by any of his assignees. The following is a sufficient form for a disclaimer : (330.) Form for a Disclaimer by an Assignee. To THE Commissioner of Patents: The petition of of in the County of acd State of . Respectfully represents : That he has, by grant, duly recorded in the patent office, become the owner of a right for the several States of Massachusetts, Connecticut, and Rhode Island, to certain improvements in the steam-engine, for which letters- patent of the United States were granted to of in the State of dated on the day of 18 ; that he has reason to believe that through inadvertence and mistake, the claim made in the specification of said letters-patent is too broad, including that of which the said patentee was not the first inventor. Your petitioner, there- fore, hereby enters his disclaimer to that part of the claim in the aforenamed specification which is in the following words, to wit : " I also claim the par- ticular manner in which the piston of the above-described engine is constructed, so as to insure the close fitting of the packing thereof to the cylinder, as set forth;'' which disclaimer is to operate to the extent of the EXTENSIONS. (f-j-j interest in said letters-patent vested in your petitioner, who has paid ten dollars into the treasury of the United States, agreeably to the requirements of the act of Congress in that case made and provided. {Signature^ The above form is for disclaimer by an assignee. When the disclaimer is made by the original patentee, it must, of course, be so worded as to express that fact. EXTENSIONS. The applicant for an extension must file his petition and pay in the requisite fee at least ninety days prior to the expira- tion of his patent. The commissioner has no power to renew a patent granted since March 2, 1861; but he may extend one granted before, for seven years. The questions which arise on each application for an exten- sion are: Is the invention novel? Is it usefulf Is it valuable and important to the public } Has the inventor been adequately remunerated for his time and expense in originating and perfecting it t Has he used due diligence in introducing his invention into general use .■• The first two questions will be determined upon the result of an examination in the patent office ; as will also the third, to some extent. To enable the commissioner to come to a correct conclusion in regard to the third point of inquiry, the applicant should, if possible, procure the testimony of persons disinterested in the invention, which testimony should be taken under oath. In regard to the fourth and fifth points of inquiry, in addition to his own oath showing his receipts and expenditures on account of the invention, by which its value is to be ascertained, the applicant should show, by testimony on oath, that he has taken all reasonable measures to introduce his invention into general use ; and that, without default or neglect on his part, he has failed to obtain from the use and sale of the invention a reason- able remuneration for the time, ingenuity, and expense bestowed on the same, and the introduction thereof into use. 6'jZ THE LA W OF PA TENTS. In case of opposition by any person to the, extension of a patent, both parties may take testimony, each giving reasonable notice to the other of the time and place of taking said testi- mony, which shall be taken according to the rules prescribed by the Commissioner of Patents in cases of interference. A monopoly of his invention is secured by the law now in force to the inventor for the term of seventeen years, with a view to compensate him for his time and expense in originating and perfecting it. At the end of the time for which his patent runs his monopoly should cease, and the invention become public property, unless he can show good reason for the contrary. The presumption is always against his application ; and if he cannot show that his invention is novel, useful, and valuable, and important to the public, and that having made all reasonable effort to introduce it into general use, he has not been ade- quately remunerated for his time and expense in discovering and perfecting it, the applicant cannot have an extension. Therefore, the applicant for an extension must furnish to the office a statement in writing, under oath, of the ascertained value of the invention, and of his receipts and expenditures. This statement should be made particular and in detail, unless sufficient reason is set forth why such a statement cannot be furnished. This statement should be filed within thirty days after filing his petition. Any person who intends to oppose an application for exten- sion may, at any time after such application has been made, give notice of such intention to the applicant. After this he will be regarded as a party in the case, and be entitled to notice of the time and place of taking testimony, as well as to a list of the names and residences of witnesses whose testimony may have been previously taken ; but he must file his reasons in the patent office at least twenty days before the day of hearing. The person opposing the extension will be entitled to a copy of the application, and of any other papers on file, upon paying the costs of copying. In contested cases, no testimony will be received, unless by consent, which has been taken within thirty days next after the filing of the petition or the extension. In the notice of the DESIGNS. 670 application for an extension, a day will be fixed for the reception of testimony ; a day ten days later for the recejotion of argu- ments ; and a day ten days after this for a hearing. Applications for a postponement of the hearing must be made and supported according to the same rules as are to be observed in the case of interferences. But they will not be granted in such manner as to cause a risk of preventing a decision in season. DESIGNS. , Designs are provided for by the Act of July 8, 1870, Sects. 71 to y6, as follows: Any person, who by his own industry, genius, efforts, and expense, has invented or produced any new and original design for a manufacture, bust, statue, alto-relievo, or bas-relief; any new and original design for the printing of woolen, silk, cotton, or other fabrics ; any new and original impression, ornament, pattern, print, or picture, to be printed, painted, cast, or other- wise placed on or worked into any article of manufacture ; or any new, useful, and original shape or configuration of any article of manufacture, the same not having been known or used by others before his invention or production thereof, or patented or described in any printed publication, — may, upon payment of the duty required by law, and other due proceedings had the same as in cases of inventions or discoveries, obtain a patent therefor. And the commissioner may dispense with models of designs when the design can be sufficiently represented by drawings or photographs. Patents for designs may be granted for the term of three years and six months, or for seven years, or for fourteen years, as the applicant may in his application elect. And patentees of designs issued prior to March 2, 1861, shall be entitled to exten- sion of their respective patents for the term of seven years, in the same manner and under the same restrictions as are pro- vided for the extension of patents for inventions or discoveries issued prior to the second day of March, 1861. The following are the rates of fees in design cases : For three years and six months, ten dollars. For seven years, fifteen dollars. 68o THE LA W OF PA TENTS. For fourteen years, thirty dollars. For all other cases in which fees are required, the same rates as in cases of inventions or discoveries. All the regulations and provisions which apply to the obtain- ing or protection of patents for inventions or discoveries, not inconsistent with the provisions of the statute, apply to patents for designs. The following forms are proper to be observed in applica- tions of this nature : (251.) Form of Application for Patents for Designs. To THE Commissioner of Patents : The petition of of , in tlie County of and State of , Respectfully represents : That your petitioner has invented or produced a new and original design for , which he verily believes has not been known prior to the production thereof by your petitioner. He therefore prays that letters-pat- ent of the United States may be granted to him therefor, for the term of years, vesting in him and his legal representatives the exclu- sive right to the same, upon the terms and conditions expressed in the act of Congress in that case made and provided, he having paid dollars into the treasury, and complied with the other provisions of the said act. {Signature^ The following may be used as a form of specification for designs : (262.) Form of Specification for Designs. To ALL WHOM IT MAY CONCERN: — Be it known that I , of the city of , in the County of , and State of , have originated and designed a new pattern for carpets or other fabrics (or design for a trade- mark), of which the following is a full, clear, and exact description, reference being had to the accompanying specimens or drawings, making part of this specitication. [Here follows a description of the design, with reference to the specimen or drawing, the specification to conclude, as follows :] {Signature^.) ss. FOREIGN PATENTS. 68 1 Claim. What I claim as my invention and desire to secure by letters-patent is the design or pattern for carpets or other fabrics (or design for a trade- mark) herein set forth. Witnesses. (253.) Form of Oath. City (or Town) op and County of State of ■ . On this day of , i8 , before the subscriber, a , personally appeared the within-named and made solemn oath (or affirmation, as the case may be) that he verily beheves him- self to be the original and first inventor or producer of the design for a com- positiofi in alto-relievo, and that he does not know or believe that the same was ever before known or used, and that he is- a citizen of the United States. {Signai7ire.) FOREIGN PATENTS. The taking out of a patent in a foreign country does not prejudice a patent previously obtained here ; nor does it pre- vent obtaining a patent here subsequently, if the invention has not been in public use in the United States for more than two- years. When application is made for a patent for an invention which has been already patented abroad, the inventor will be required to make oath, that, according to the best of his knowl- edge and belief, the same has not been introduced into public and common use in the United States for more than two years prior to the application. An applicant who has obtained a for- eign patent, should state that a foreign patent or patents have been obtained, and should'givethe date of the patent having the shortest term. The reason of this is, that the statute provides, that the patent granted in this country should expire with the foreign patent, or, if there be more than one, at the same time with that having the shortest term ; and in no case can it be in force more than seventeen years. CAVEATS. Any citizen of the United States, or alien \ Arrest for debt is abolished. ABSTRACT OF THE COLLECTION OF DEBTS. 711 Attachments may issue, i. When the debtor resides out of the State. 2. When he is actually removing oris about to remove without the limits of the county. 3. When he absconds. 4, When he conceals himself. 5. When he resists legal arrest. 6. When he is causing his property to be removed beyond the limits of the State, on the affidavit by a judge of the superior court, or county court, a justice of the peace, or a notary public, setting forth one of the above causes, and the amount of the debt claimed. Plaintiff must give a bond to the defendant to prosecute his suit, and the defendant may dissolve the attachment by giving bond. Garnishment may issue in all cases where an attachment issues, by a summons directed to any person who has the property or effects of the de- fendant in his hands, or who is indebted to him. Judgment is a lien on all property, real or personal, except promissory notes and choses in action. Judgments draw interest provided the original claim would do so. The judgment lien continues for four years on real property, and two years on personal property sold to a bona fide purchaser for a valuable consideration. Stay-Law. — If the debtor gives a bond with good security, execution may be stayed sixty days. Exemptions. — Fifty acres of land and five acres additional for every child under sixteen years, including the dweUing-house, if such house and improvements do not exceed in value two hundred dollars, such homestead not to be in any city, town, or village ; or in lieu thereof, real estate in a city, town, or village, not exceeding five hundred dollars in value, one farm horse or mule, one cow and calf, ten head of hogs, and fifty dollars' worth of pro- visions, and five dollars' worth additional for every child, beds, bedding, and common bedsteads sufficient for the family, one loom, one spinning-wheel, and two pairs of cards and one hundred pounds of lint cotton, common tools of trade of the debtor and his wife, equipments and arms of a militia soldier, and a trooper's horse, ordinary cooking utensils and table crockery, wearing apparel of the debtor and his family, family Bible, religious works, and school- books, family portraits, library of a professional man in actual practice not exceeding in value three hundred dollars, to be selected by the debtor. ILLINOIS. — Actions are begun by a summons issued under the seal of the court ten days at least before the return of the writ. Attach.ment. — The creditor may have an attachment against the prop- erty of the defendant when the debt exceeds twenty dollars, i. Where the debtor is a non-resident. 2. Where the debtor conceals himself, or stands in defiance of the officer so that process cannot be served. 3 and 4. Where the debtor has departed, or is about to depart from the State with the intent to have his effects removed from the State. 5. Where the debtor is about to remove his property from the State. 6, 7, and 8. Where the debtor has fraudulently conveyed, or concealed, or is about so to convey or conceal his property within two years after contracting the debt. 9. Where the debt sued for was fraudulently contracted. The creditor must file an affidavit 712 ABSTRACT OF THE COLLECTION OF DEBTS. ■with the clerk of the court, stating the nature ar.d amount of the in- debtedness, and any one of the preceding causes ; must give a bond to the defendant to prosecute his case and to pay costs if not successful. Arrest. — The defendant may be arrested on mesne processor execu- tion from a court of record, in actions of contract and on judgments, on an affidavit setting forth the cause and amount due, and facts showing that the defendant fraudulently contracted the debt ; or, in actions sounding in damages merely, the facts of the case, and that the plaintiff believes that the benefit of the judgment vi'ill be lost unless the defendant is required to give bail, or that he has concealed, assigned, or disposed of property with the intent to defraud his creditors. Garnishment. — When the officer is unable to find property of the de- fendant, he may summon any persons designated by the plaintiff, who have property of the defendant, or who owe debts to the defendant, the same as if they were inserted in the writ. He may also summon such persons after judgment and return by the officer of " no property found," on affidavit by the plaintiff. The wages of defendant, who is the head of a family, and residing with the same, to the amount of twenty-five dollars, are exempt. Judgment is a lien against real estate in the county for seven years, and bears interest at six per cent. There is no priority of judgments ren- dered at the same term of the court. Stay- Law. — There is no stay of execution in Illinois. Exemptions. — A householder, having a family, is entitled to a homestead in a farm or lot of land and the buildings to the value of one thousand dol- lars ; of personal property, the necessary wearing apparel, Bibles, school- books, family pictures, one hundred dollars' worth of other property to be selected by the debtor, and, where the debtor is the head of a family, three hundred dollars' worth of such property. INDIANA. — Actions. — All distinctions of actions are abolished, and there is but one form for law and equity; must be prosecuted in the name of the real party to the suit, and are begun by fihng with the clerk a com- plaint and causing a summons to issue thereon. Arrest. — The defendant may be arrested and held to bail at any time before judgment, on an affidavit on behalf of the plaintiff, -specifying his right to recover an existing debt or damages, and stating that affiant believes that the defendant is about to leave the State, taking his property with him, with intent to defraud his creditors. Plaintiff must give bond to pay to the defendant all damages if the order be wrongfully obtained. Attachment. — Plaintiff may have a writ of attachment at any time where the action is for the recovery of money, i. Where the defendant is a foreign corporation or a non-resident of the State. 2. Where the defendant, or one of them, is secretly leaving the State, or has left it, with intent to defraud his creditors. 3. So conceals himself that the summons cannot be served upon him. 4. Is removing, or about to remove, his property from the State, not leaving enough to satisfy the plaintiff's claim. 5. Has sold, ABSTRACT OF THE COLLECTION OF DEBTS. 713 conveyed, or otherwise disposed of his property with intent to defraud or delay his creditors. 6. Is about to do so. On filing with the clerk an affida- vit showing, I. The nature of his claim. 2. That it is just. 3. The amount, and that he believes he ought to recover the same; and 4, one of the grounds of attachment mentioned above. Garnishment. — If an affidavit is filed at anytime stating that the affiant has good reason to believe that any one has property of the defendant which cannot be attached, or is indebted to him, the clerk may issue a summons to such person or persons to appear as garnishee. He may be arrested on afiidavit filed, that it is believed that he is about to abscond, with intent to defraud creditors, and that he has property of the defendant. Judgment for the recovery of money or costs is a lien on the real estate arid chattels real of the defendant in the county where judgment was ren- dered, for ten years, and becomes such a lien in other counties at the filing therein of a certified copy. Judgments bear interest from the date of sign- ing, at a rate not exceeding six per cent. Exemptions. — An amount of property not exceeding three hundred dol- lars is exempt for any debt growing out of or founded on contract. The debtor may select the property that he wishes to have exempt. There is no home- stead exemption. Stay- Law. — On giving bond with good surety, execution may be stayed as follows : On sums, excluding costs, not exceeding six dollars, thirty days ; on all sums between six and twelve dollars, sixty days ; between twelve and twenty dollars, ninety days ; between twenty and forty dollars, one hundred and twenty days ; between forty and one hundred dollars, one hundred and fifty days ; over one hundred dollars, one hundred and eighty days. IOWA. — ^ Actions. All distinctions of forms are abolished ; they must be prosecuted by and in the name of the real party in interest, except in the case of executors, administrators, guardians, and trustees, and are begun by serving the defendant with a notice that a suit will be brought on or before a certain day. Arrest. No arrest on mesne process. Debtor may be arrested on execution for examination, when satisfactory proof is made that he is about to leave the State, or conceal himself. Attachment. There may be an attachment at any time on a sworn petition, stating, i. That defendant is a foreign corporation ; 2. Non-resi- dent. 3. Is about to remove his property from the State. 4. Has disposed of his property with intent to defraud his creditors. 5. Is about to do so. 6. Has absconded. 7. Is about to remove permanently from the county, and has property therein not exempt and that he refuses to pay to the creditor. 8. Is about to remove permanently from the State and refuses to pay the debt. 9. Is about to remove his property out of the county with intent to defraud creditors. 10. Is about to convert his property into money with intent to place it out of reach. 11. Has property concealed. 12. That the debt is for property obtained under false pretences. 714 ABSTRACT OF THE COLLECTION OF DEBTS. Garnishment may issue against any person supposed to have prop' erty of the defendant or to owe him a debt. Judgment is a lien on real estate for ten years, in the county where it was rendered, from the date of such rendition, and in other counties from the date of filing an attested copy therein ; bears interest at six per cent, unless a different rate was expressed in the contract, in which case it shaU bear such rate of interest, not exceeding ten per cent. Stay Law. On contracts made since September i, 1873, execution may be stayed by giving bond with good security, as follows : On sums not exceeding one hundred dollars, three months ; on sums exceeding one hundred dollars, six months. On contracts made previous to September i, 1873, execution is stayed as follows : On sums not exceeding five dollars, one month ; between five and twenty dollars, two months ; between twenty and forty dollars, three months ; between forty and sixty dollars, four months ; between sixty and one hundred dollars, six months ; between one hundred and one hundred and fifty dollars, nine months ; over one hundred and fifty dollars, twelve months. All judgments on which execution is stayed, bear interest at ten per cent. Exemptions. To a debtor, resident of the State and head of a family, the wearing apparel for himself and his family and trunks to contain the same, one musket or rifie and shot gun, private libraries and family Bibles, portraits, pictures, musical instruments, paintings, not kept for sale, seat or pew in church and interest in burying-ground, not exceeding one acre, two cows and calf, one horse, fifty sheep and the wool thereon, six stand of bees, five hogs and all pigs under six months, the necessary food for all animals exempted, for six months, all the flax raised on ground not exceeding one acre and the manufactures therefrom, one bedstead and bedding for every two persons, cloth manufactured by the debt or not exceeding one hundred yards, household and kitchen furniture not exceeding two hundred dollars in value, spinning-wheel and looms, one sewing machine and other instruments of domestic labor kept for actual use, necessary provisions and fuel for six months, tools, instruments, or books of the debtor, if a farmer, mechanic, surveyor, or professional man, horse or team and wagon or other vehicle with the harness and rigging, by the use of which the debtor earns his living, and, if the debtor is a printer, types, furniture, and materials necessary for his business not exceeding twelve hundred dollars in value. The homestead of the debtor is also exempt, embracing the house used by him as a home, and if in a town plat, not exceeding one-half an acre in extent, or not exceeding forty acres if not in any town plat ; but in either case it may amount to five hundred dollars in value, though exceeding the above amount. KANSAS. — Actions are brought in the name of the real party inter- ested, and begun by filing with the clerk a petition, and causing a summons to issue thereon, directed to sheriff. Arrest. Debtor may be arrested before or after judgment — on filing ABSTRACT OF THE COLLECTION OF DEBTS. 715 with the clerk an affidavit, stating the nature and amount of the claim, and that it is just, and one of the following reasons : i. That defendant has or is about to remove his property out of the jurisdiction of the court with intent to defraud creditors. 2. That he has begun to convert his property into money for the purpose of placing it beyond the reach of his creditors. 3. That he has property fraudulently concealed. 4. That he has assigned or disposed of his property, or begun to do so, with intent to defraud his creditors. 5. That he fraudulently contracted the debt. The affidavit must also state the facts claimed to justify the belief in the above causes for arrest. Attachment. Writ of attachment may issue for one of the following causes : i. That the defendant is a foreign corporation. 2. That he has absconded with intent to defraud creditors. 3. That he has left the county with intent to avoid service. 4. So conceals himself that summons cannot be served on him. 5. Is about to remove his property with intent to defraud. 6. Is about to convert his property into money in order to conceal it. 7. Has property concealed. 8. Has assigned or disposed of, or is about to dispose of, property to defraud or delay his creditors. 9. That he fraudu- lently contracted the debt. 10. Where the damages sought to be recovered are for injuries resulting from the commission of a felony or misdemeanor or the seduction of a female. 11. Where the debtor failed to pay the price of any article delivered, when by the contract he was bound to pay for on delivery. ' An affidavit must be filed stating the nature and amount of the claim, and that it is a just one, and also one of the above causes. Attach- ment may be dissolved by the defendant by giving bonds. Garnishment issues on fihng with the clerk an oath, in writing, of belief that the person or persons named have property of the defendant, or are indebted to him. Judgment is a lien on real estate in the county where it was rendered from the first day of term in which it was so rendered, and in other counties from the filing therein an attested copy of the judgment, and such lien continues for five years ; and it bears interest at the rate of seven per cent., unless there was a special agreement in the contract, in which case it bears interest at such rate, not exceeding twelve per cent. Stay Law. There is no stay of execution in the District Courts except on appeal. In justices' courts stay is granted on filing a bond with good security, as follows : on amounts not exceeding twenty dollars, thirty days ; between twenty and fifty dollars, sixty days ; between fifty and one hundred dollars, ninety days ; over one hundred dollars, one hundred and twenty days. ' Exemptions. A homestead of one hundred and sixty acres of land with the improvements, or one acre in an incorporated city or town, occupied as the residence of the debtor and his family. Personal property of a debtor who is the head of a family, consisting of i, family Bible, school- books, and family library ; 2, family pictures, and musical instruments used ; 7l6 ABSTRACT OF THE COLLECTION OF DEBTS. 3, seat or pew in church and lot in burying-ground ; 4, wearing apparel, beds, bedding, and bedsteads used in the family. One cooking stove and appendages, all other cooking utensils and stoves and appendages necessary for the use of the debtor and his family, one sewing-machine, all spinning- wheels and looms, and all other implements of industry not enumerated, not exceeding in value five hundred dollars ; 5, two cows, ten hogs, one yoke of oxen, one horse or mule, or in lieu of one yoke of oxen and one horse or mule, a span of horses or mules, twenty sheep and the wool of the same ; 6, the necessary food for the support of the stock mentioned, for one year, one wagon, cart, or dray, two plows, one drag, and other farm utensils not exceeding three hundred dollars in value ; 7, grain, meat, and other provisions necessary for one year, and fuel for one year ; 8, necessary tools of mechanic, miner, or other person used for trade or business not exceeding four hundred dollars in value ; 9, library, implements, and office furniture of a professional man. If the debtor is not the head of the family, his wearing apparel, seat or pew in church, and lot in burying-ground, and as above in 8 and 9. The earnings of the debtor for personal service for three months are exempt. EENTUCKy. — Actions. There is only one form for civil actions, which are begun by filing with the clerk of the court a petition, and causing a summons to issue thereon. Arrest. The defendant may be arrested and held to bail at any time before judgment, on filing with the clerk an affidavit showing, i, the nature of the claim ; 2, that it is just ; 3, the amount, and 4, that the affiant believes either that the defendant is about to leave the State, and with intent to defraud his creditors has concealed or disposed of his property, so that there will not be enough left to satisfy the plaintiff's claim, or that the defendant has property, and is about to leave the State, without leaving, enough to satisfy the plaintiff's claim. Attachment. Writ of attachment issues against the property of a defendant or garnishee, in an action for the recovery of money, in the follow- ing cases : I. Where the defendant, or one of them, is a foreign corporation, or a non-resident of the State. 2. Or has been absent from the State four months. 3. Has departed from the State with intent to defraud his creditors. 4. Has left his county to avoid service. 5. Conceals himself so that sum- mons cannot be served on him. 6. Is about to move his property from the State, not leaving enough to satisfy the claim or claims. 7. Has sold or disposed of, or suffered to be disposed of his property with intent to defraud or delay his creditors, or 8, Is about to sell or dispose of his property, with such intent. Plaintiff must file an affidavit showing the nature of the claim, that it is just, the amount of the same, and one of the foregoing causes. Garnishjient. On return of the execution with return of " no property found," the plaintiff may bring a suit against the defendant for discovery, and bring in any parties indebted to the defendant, or who have property of the defendant, as parties to the suit. ABSTRACT OF THE COLLECTION OF DEBTS. 717 Judgment is not a lien on defendant's property, Stay Law. Wiien the execution is not in tlie hands of the officer, defendant may replevy the judgment for three months by giving bond with surety. Exemptions of a householder with a family resident in the State, two work beasts, or one and yoke of oxen, two cows and calves, five sheep, wearing apparel, and the usual household and kitchen furniture to the value of one hundred dollars. Also on debts and liabilities created after June i, 1866, land and house not exceeding in value one thousand dollars, also, one sewing-machine, one two-horse wagon or cart, with harness and gear, school- books, prayer-book and hymn-book, and a small amount of furniture, and on liabilities created since May i, 1870, the libraries of preachers, lawyers,, physicians, and surgeons, to the amount of five hundred dollars in value, and tools of a mechanic, not exceeding in value one hundred dollars. Also the homestead of the debtor, consisting of land and the buildings thereon, to the value of one thousand dollars. LOUISIANA.— Actions are begun by petition, stating all the facts necessary to the cause and identification of the parties on which a citation issues addressed to the defendant. Arrest. The defendant cannot be arrested to secure payment of a debt, but only to secure his person to answer to the suit. A non-resident cannot be arrested unless it appear on oath that he has absconded from his residence in his own State. Attachment. Writ of attachment issues when the defendant resides out of the State or has left or is about to leave the State permanently ; or ■when he conceals himself to avoid service of summons ; or when he has assigned or disposed of, or is about to assign or dispose of, his property with intent to defraud his creditors or give an unfair preference ; or when he has converted, or is about to convert, his property into money, with intent to conceal the same ; or when he is about to remove his property from the State before the debt becomes due. The plaintiff must file a sworn petition, setting forth the facts which render the writ necessary and the nature and amount of the claim. Writs of sequestration and provisional seizure issue in certain cases. Garnishment. In cases of attachment, where the creditor believes that any other parties have property of the defendant, or are indebted to him, he may cite them in as parties. Judgment acts as a mortgage on all real estate of the debtor, from the date of record in the office of the Parish Recorder. It is prescribed, and ceases to be a lien in ten years. There is no stay of execution in Louisiana. Exemptions. One hundred and sixty acres of land with the buildings, occupied by the debtor as a residence and owned by him, when he has a family dependent on him ; together with a certain amount of stock ; but the property in no case to be worth more than two thousand dollars, and no 46 7l8 ABSTRACT OF THE COLLECTION OF DEBTS. homestead is allowed i£ the wife, in her own right, owns property to the amount of one thousand dollars. Also are exempt the clothes and linen of debtor or his wife, his beds, bedding, and bedsteads, his arms and militar}' accoutrements, the ,tools, instruments, books, and sewing-machines necessary for the trade or calling by which the debtor makes a living, cook- ing-stove and utensils, dining-table, dishes, knives, forks, etc., wash-tubs, smoothing-irons and ironing-furnaces, family portraits, belonging to the debtor, and musical instruments in use, and a few other minor articles. MAINE. — Actions are begun by original writ, framed to attach the goods and estate of the debtor, and for want thereof his body, or by sum- mons with or without an order of attachment, in the county where either party lives, unless it be a real action, when it must be brought where the land lies. Attachment. All property not exempt may be attached, and it con- tinues under lien for thirty days after judgment. Arrest. Defendant may be arrested in an action of tort, and in an action of contract, when the debt is over ten dollars, and the debtor is about to depart permanently from the State, with his property, on affidavit by the creditor or his agent to the above effect, and on execution, when he is com- pelled to disclose his property. Garnishment in this State is called Trustee Process. Personal actions may be begun by such process, when the trustee has any property or effects of the defendant, or is indebted to him, but the wages of the defendant for the month preceding, not exceeding twenty dollars, are exempt. Judgment. There is no lien of judgment, its place being supplied by the lien of attachment. Exemptions. The homestead of a householder to the value of five hundred dollars. Of personal property, the debtor's wearing apparel, neces- sary household furniture not exceeding in value fifty dollars, one bed, bed- stead and bedding for every two persons, family portraits. Bibles and school- books, and a copy of the Statutes, and library not exceeding one hundred and fifty dollars in value, a pew in a meeting-house, and a lot in burying- ground, one cooking-stove, and iron stoves used for heating, charcoal, five tons of anthracite coal, fifty bushels of bituminous coal, twelve cords of wood, ten dollars' worth of lumber, wood, or bark, produce until harvested, one barrel of flour, thirty bushels of corn and grain, potatoes, flax raised on ,an acre of ground, and articles manufactured therefrom for the family, tools of trade, sewing-machine, one pair of working cattle, or pair of mules, or one or two horses, not exceeding in value three hundred dollars, and hay for the winter, one cow and heifer, ten sheep, and the lambs and wool from them, and hay for the winter ; a plow, cart, harrow and rigging, and one boat of two tons. MARYIiAND. — Actions are begun as at common law, and the com- mon \pN forms of actions remain as simplified by the Code of Procedure. ABSTRACT OF THE COLLECTION OF DEBTS. 719 Attachment may issue against the property of the defeadant in the hands of any person, where tlie defendant is a non-resident, or where he absconds, on affidavit before a judge or justice of the peace that the debt is a bond, fide one, and that he has absconded, together with the evidences of the debt. It may also issue on an original process based on an account, note, or bond, on an affidavit that the defendant is really indebted, and is about to leave the State, or that he has, or is about to assign or dispose of his prop- erty with the intent to defraud his creditors, or that he fraudulently con- tracted the debt for which the action is brought, or that the defendant has, or is about to, remove his property out of the State with intent to defraud bis creditors. Attachment may issue where two summonses have been returned " non est" on proof by the plaintiff of his claim by affidavit and the production, if any, of written evidence of the debt, also in case of actions for false imprisonment or illegal arrest, for the amount of damages claimed. Wages and salary not due at the time of attachment, cannot be attached, and one hundred dollars is exempt out of what is due. Arrest for debt is abolished. Garnishment may issue against the property of the defendant in the hands of any person, by attachment. {See Attachment.) Judgment is a lien on real estate of defendant acquired after judgment, as well as what was owned by him at the date of rendition, and becomes a lien in other counties by transferring it to such counties ; bears interest at six per cent. Judgments remain a lien for twelve years. Stay Laws. On all judgments rendered the second term after the defendant has been summoned, he is entitled to stay of execution until the first Thursday of the following term. Exemptions. Wearing apparel, books, and tools used for trade or earn- ing a living, and one hundred dollars' worth of other property, selected by the debtor. There is no homestead exemption. MASSACHUSETTS.— Actions are begun by original writ, framed to attach the goods or estate of the defendant, or for want thereof, to take his body, or by summons, with or without an order of attachment, in either case accompanied by a separate summons to be served on the defendant, may be brought in the county where either party lives unless it is to recover real estate, when it must be brought where the land lies. Arrest. Defendant may be arrested on mesne process on the plaintiff making affidavit before the proper officer,— (i) that he has good cause of action, and expects to recover more than twenty dollars, and (2) that the defendant, to the best of his belief, has property not exempt, that he does not intend to apply to the payment of the debt, and (3) that he believes that the defendant intends to leave the State. Or (instead of 2 and 3), that the defend- ant is an attorney at law, and that the debt is for money collected on behalf of the plaintiff, and that the defendant neglects to pay the same. And, in an action of tort, by 1 making affidavit that the plaintiff expects to recover at least one-third the damages named in the writ, and that he believes the defendant 720 ABSTRACT OF THE COLLECTION OF DEBTS. is about to remove beyond the jurisdiction of the court. Defendant may be arrested on execution, in an action of tort, without an affidavit, and in an action of contract, where the damages, exclusive of costs, amount to twenty dollars or more, on affidavit (i) that the debtor has property not exempt which he does not intend to apply to the payment of the debt; (2) that since the debt was contracted, or the cause of action accrued, the debtor has fraud- ulently conveyed or concealed his property ; (3) that since the debt was con- tracted, or cause of action accrued, the debtor has lost one hundred dollars or more in illegal gambling ; (4) that since the debt was contracted the debtor has wilfully misspent his property so as to be able to swear that he has no property not exempt ; (5) that the debtor contracted the debt with an inten- tion not to pay it ; (6) that the debtor is an attorney at law, and neglects unreasonably to pay money collected by him for the creditor. Attachment. All goods and estate, real and personal, may be attached without any affidavit, and the attachment continues as a lien for thirty days after judgment. Attachments may be dissolved, by the defendant, by giving bond to pay all damages recovered, with costs. Garnishment same as Trustee Process. All actions except tort for malicious prosecution, libel and slander, and assault and battery, may be begun by trustee process; and any one, including a corporation, who is indebted to the defendant, or who has property of the defendant, may be summoned. Judgment is not a lien, but {see Attachment) bears interest from the date of rendition, at six per cent. There is no stay of execution. Exemptions. The homestead of a householder having a family, to the value of eight hundred dollars in the farm or lot of land and buildings owned and occupied by him as a residence. Necessary wearing apparel for the family, one bedstead and bedding for every two persons, one iron stove used for warming the dwelling-house, and fuel for the same not exceeding twenty dollars in value, other necessary household furniture not exceeding three hundred dollars in value ; Bibles, school-books, and library used by himself or family, not exceeding fifty dollars in value ; one cow, six sheep, one swine, and two tons of hay ; tools, implements, and fixtures necessary for business or trade, not exceeding in value one hundred dollars ; materials and stock designed and necessary for his trade or business, not exceeding one hundred dollars in value ; provisions necessary and procured for debtor and his family, not exceeding fifty dollars in value ; one pew in church ; the boats, tackle, and nets of fishermen actually used by them for their business, to the value of one hundred dollars ; the uniform, arms, and accoutrements of a militia man ; rights of burial and tombs. MICHIGAN.— Actions are begun (i) by original writ, or (2) by filing in the office of the clerk of the court a declaration, entering a rule requiring the defendant to plead within twenty days after service, and the service of a copy of the declaration and notice of the rule upon the defendant. Arrest. Personal actions on contract may be begun by a writ of capiax ABSTRACT OF THE COLLECTION OF DEBTS. 721 ad respondendwn, only to recover damages for breach of promise, or for money collected by a public officer, or for misconduct or neglect in office, or in any professional employment, on an affidavit being attached to the writ on behalf of the plaintiff, stating that he has a good cause of action, and believes that he is entitled to recover more than one hundred dollars. Personal actions may also be begun by capias in cases of claims for damages other than those arising on contract, where an order for bail is indorsed on the writ by a judge of the court from which the process issues, or a circuit court commissioner. Attachmext. The creditor may proceed at any time before judgment, by attachment, in the circuit court for the county where either party lives, if the defendant have property therein, subject to attachment, and in case he has not property therein, in the county where the property lies, on filing an affidavit stating the indebtedness, the amount, and that it is due on a contract, together with one of the following causes ; i. That the defend- ant has absconded, or is about to abscond, or is concealed, to the injury of his creditors. 2. That defendant has assigned, concealed, or disposed of, or is about to assign or dispose of his property with intent to defraud his cred- itors. 3. That the defendant has or is about to remove his property from the State, with intent to defraud his creditors. 4. That the defendant fraud- ulently contracted the debt. 5. That he is a non-resident, and has been so for three months previous to making the affidavit. 6. That he is a foreign corporation. Attachment is a lien on real estate from the date of depositing a certified copy in the registry of deeds for the county where the land lies. Garnishment. In all actions in justices' courts, circuit courts, or dis- trict court of the upper Peninsula, at the commencement of the suit, or at any time, the plaintiff may have a writ of garnishment on filing with the clerk an affidavit that he believfes that any person (naming him) has property, effects, or credits of the defendant, or is indebted to him, and that he is in danger of losing the same, unless garnishment issues. Judgment bears interest at the rate of seven per cent., unless it is on a written instrument embodying a different rate, in which case such rate is followed, not exceeding ten per cent. Judgment becomes a lien on real property from the levy of execution, and from the time of filing a notice of such levy, containing the names of the parties, description, and date of the levy, in the office of the registry of deeds for the county where the land lies. Stay Laws. Defendant may have a stay of execution in justices' courts within five days after the justice is authorized to issue execution, by filing a bond with good surety, as follows : for four months where the execution does ■ot exceed fifty dollars ; and six months where it does exceed fifty dollars. Exemptions, i. Spinning-wheels, weaving-looms, and stoves put up and kept for use. 2. Seat or pew in church. 3. Cemeteries, tombs, and rights of burial while in use. 4. Arms and accoutrements required by law, and all wearing apparel. J. Library and school-books of each member of the family, not exceeding in value one hundred and fifty dollars, and family 722 ABSTRACT OF THE COLLECTION OF DEBTS. pictures. 6. To every householder, ten sheep and fleeces, or the yam or cloth from the same, two cows, five swine, and the provisions and fuel for the comfort of the family for six months. 7. To a householder, all house- hold goods, furniture, and utensils, not exceeding in value two hundred and fifty dollars. 8. Tools, implements, materials, stock, apparatus, team, vehicle, horses, harness, or other things which enable a person to carry on the busi- ness in which he is engaged, not exceeding in value two hundred and fifty dollars. 9. Sufficient grain, hay, feed, and roots, whether growing or other- wise, for keeping all animals, exempt for six months. 10. Sewing-machine, also a homestead of forty acres, and the dwelling-house and appurtenances not included in a recorded town plat, city, or village, or instead, one lot in a town plat, city, or village, and the dwelling-house thereon, owned and occu- pied as a residence, not exceeding fifteen hundred dollars in value. HINNESOTA. — Actions. All distinctions are abolished, and there is but one form for all actions, which are begun by summons signed by the plaintiff and directed to the defendant, and must be prosecuted by the real party in interest. Attachments may be had at any time in actions for the recovery of money, and are sued out on affidavit specifying the cause and amount and grounds for the action, and that the defendant is a foreign corporation, or a non-resident, or has departed from the State with intent to defraud or delay creditors, or to avoid the service of the summons, or that defendant keeps himself secreted with like intent, or has assigned, secreted, or disposed of his property, or is about to do so, with intent to defraud his creditors, or that the debt was fraudulently contracted. Arrest for debt is abolished. Garnishment is allowed in actions on contracts, on filing an affidavit at any time before or after judgment, stating that it is believed that any person (naming him) has property of the defendant, or is indebted to him in a sum exceeding twenty-five dollars. Judgment is a lien, in the county where the cause was tried, from dock- eting the same, and in other counties from the date of filing a transcript in the office of the District Court, and continues a lien for ten years. Stay Laws. Stay of execution may be had in justices' courts, as fol- lows : On sums not exceeding ten dollars, one month ; not exceeding twenty- five dollars, two months ; between twenty-five and fifty dollars, three months ; between fifty and seventy-five dollars, four months ; and over seventy-five dollars, six months. Debtor must file a bond, with good surety, within ten days after judgment is rendered. Exemptions, i. Family Bible. 2. Family pictures, school-books, or library, and musical instruments in use. 3. Seat or pew in church. 4. Lot in burying-ground. 5. Wearing apparel, beds, bedsteads, and bedding kept and used in the family, stoves and apparatus put up or kept for use, and cooking utensils, and all other household furniture not enumerated, and not exceeding five hundred dollars in value. 6. Three cows, ten swine, one ABSTRACT OF THE COLLECTION OF DEBTS. 723 yoke of oxen, and one horse, or in lieu of oxen and horse, a span of horses or mules twenty sheep and the wool therefrom, either raw or manufactured, food for the stock for one year, either provided or growing, or both, one wagon, cart, or dray, one sleigh, two plows, one dray, and other farm utensils, not exceeding three hundred dollars in value. 7. Provisions and fuel for debtor and his family for one year. 8. Tools and instruments of mechanic, miner, or other person, and kept for trade, and in addition, stock-in-trade, not exceeding four hundred dollars in value, and library and implements of a professional man. Also a homestead of eighty acres, and the dwelling- house and appurtenances, not in an incorporated city, town, or villagCj or in lieu thereof, one lot in an incorporated city, town, or village, with the house thereon. MISSISSIPPI. — Actions are begun by a summons, and the forms of actions, and modes of proceeding are as at common law. Attachment. Remedy by attachment applies to all liquidated debts, and to all claims for damages for breach of contract, and issues on an affi- davit filed by the creditor or his agent, stating the nature and amount of the claim, and one or more of the following causes : i. That defendant is a for- eign corporation, or a non-resident. 2. That he has removed, or is about to remove, himself or property out of the State. 3. Or so absconds or conceals himself that service cannot be made on him. 4. Or that he has property which he conceals, and refuses to apply to the payment of his debts. 5. Or that he has assigned or disposed of, or is about to assign or dispose of, his property with intent to defraud creditors, or to give a preference. 6. Or that he has or is about to convert his property into money in order to place it beyond the reach of his creditors. 7. Or that he fraudulently contracted the debt. Arrest. There is no arrest for debt. Garnishment. The writ of attachment may be levied on all property of the defendant wherever it is found, and if any third person has any prop- erty, effects, or credits of the defendant, or is indebted to him, he may be summoned as garnishee. Judgment bears interest at six per cent., unless there was a stipulation in the contract for a different rate, in which case such rate, not exceeding ten per cent., is allowed. Judgment is a lien on all property in the county where rendered, from the date of rendition, if enrolled, and in other counties from the date of filing an abstract in the office of the clerk of the court for such county. The time of limitation for judgments is seven years. Stay Laws. Stay of execution is allowed in justices' courts on giving bond with surety as follows: On sums not exceeding fifty dollars, thirty vdays : on sums over fifty dollars, sixty days. Exemptions, i. Tools of a mechanic necessary for his trade. 2. Ag- ricultural implements of a farmer necessary for two male laborers. 3. Implements of a laborer necessary for his usual employment. 4. Books of student for educational purposes. 5. Wearing apparel. 6. Library of an 724 ABSTRACT OF THE COLLECTION OF DEBTS. attorney, physician, or minister, not exceeding two hundred and fifty dollars in value, and instruments of a surgeon or dentist to a like value. 7. Arms and accoutrements of militia men. 8. Globes, books, arid maps of a teacher. And also of the property of each head of a family, one yoke of oxen, or one work horse or mule, two cows and calves, five head of stock hogs, five sheep, fifty bushels of corn, ten bushels of wheat or rice, two hundred pounds of pork or other meat, one cart or wagon not exceeding one hundred dollars in value, and household and kitchen furniture not exceeding one hundred dol- lars in value. And a homestead not exceeding eighty acres, or with the buildings not exceeding in value two thousand dollars. MISSOXJBI. — Actions are begunyfrj/, by filing with the clerk a petition setting forth the cause of action, and the remedy sought, and the voluntary appearance of the other party, or, second, by filing such petition, and suing out thereon a summons against the person, or an attachment against prop- erty. Arrest. There is none for debt. Attachment maybe had, i. Where the defendant is a non-resident. 2. Where the defendant is a foreign corporation. 3. Where the defendant conceals himself so that service cannot be had on him. 4. Where he has absconded or absented himself so that summons cannot be served on him. 5. Where defendant is about to remove his property from the State with intent to defraud his creditors. 6. Where defendant is about to remove out of the State. 7. Where defendant has fraudulently conveyed his property so as to avoid payment of his debts. 8. Where defendant has fraudulently concealed his property with a like intent. 9, 10. Where he is about to fraud- ulently convey or conceal his property with like intent. II. Where cause of action accrued out of the State, and the defendant has absconded, or removed his property to this State. 12. Where the damages sought are for injuries arising from commission of a felony or misdemeanor, or the seduction of a female. 13. Where the defendant has failed to pay the price of an article delivered, which by contract he was bound to pay for on delivery. 14. Where the debt was fraudulently contracted. Plaintiff must file an affidavit stating the nature and amount of his claim, and his belief that one or more of the above causes are true. Garnishment. The writ of attachment may be served on any one hav- ing property of, or who is indebted to the defendant, or who may be named by the plaintiff as a garnishee. The same may be done on execution, where insufficient property of the defendant is found to satisfy the claim. Judgment becomes a lien on real estate in any county by filing a trans- cript in the office of the clerk of the circuit court for such county, and it extends to real estate acquired after the rendition or filing of transcript, as well as to what was owned at the time, and it continues for three years. Judgments bear interest at six per cent., unless there was another rate expressed in the contract, in which case such rate is taken, not exceeding ten per cent. There is no stay of execution. ABSTRACT OF THE COLLECTION OF DEBTS. 72s Exemptions. To every head of a family, i. ten head of choice hogs, ten head of choice sheep, and produce in wool, two cows and calves, two plows, one axe, one hoe, one set of plow gears, necessary farming imple- ments for one man. 2. Working animal to the value of one hundred and fifty dollars. 3. Spinning-wheels and cards, one loom and appliances for manufacturing cloth in and for the private family. 4. Spun yarn, cloth, and thread manufactured for family use. 5. Hemp, flax, and wool, not exceed- ing twenty-iive pounds each. 6. Wearing apparel, four beds and bedding, other household and kitchen furniture, not exceeding in value one hundred dollars. 7. Necessary tools and implements of trade of a mechanic. 8. Arms and accoutrements of a militia man. 9. Provisions for the family, not exceeding one hundred dollars in value. 10. Bibles and other books, lettered grave-stones, and pew in church. 11. Lawyers, physicians, and clergymen may select necessary books in place of other property exempt, and doctors may select medicines. 12. A homestead not exceeding one hundred and sixty acres in extent, or fifteen hundred dollars in value, or, in cities of forty thousand inhabitants or more, a lot of eighteen square rods to the value of three thousand dollars, or in cities or other incorporated towns or villages of less than forty thousand inhabitants, thirty square rods of ground to the value of fifteen hundred dollars. IfEBRASKA. — There is but one form for all civil actions, which must be prosecuted by the real party in interest, and which are begun by filing a petition with the clerk of the court, and causing a summons to issue thereon. Arrest. An order for arrest may issue before or after judgment, on filing an affidavit with the clerk of the court, stating the nature and amount of the claim, that it is just, and one of the following grounds : i. That the defendant has removed, or begun to remove his property out of the jurisdic- tion of the court, with intent to defraud creditors. 2. That he has begun to convert his property into money to place it beyond the reach of his creditors. 3. That he has property or rights of action which he fraudulently conceals. 4. That he has assigned or disposed of, or begun to assign or dispose of, his property with intent to defraud creditors. J. That he fraudulently contracted the debt. The affidavit must also contain a statement of the facts claimed to justify the belief. Attachment may issue on filing with the clerk an affidavit stating the nature and amount of the claim, that it is just, and one of the following grounds : I. That defendant is a foreign corporation, or non-resident. 2. That he has absconded with intent to defraud creditors. 3. That he has left the county of his residence to avoid service of the summons. 4. That he so conceals himself that service cannot be made on him. 5. That he is about to remove his property beyond the jurisdiction of the court with intent to defraud. 6. That he is about to convert his property into money to place it beyond the reach of creditors. 7. That he has property concealed. 8. That he has removed or disposed of his property, or is about to do so, with intent to defraud. 9. That he fraudulently contracted the debt. 726 ABSTRACT OF THE COLLECTION OF DEBTS. Garxishmext. I£ the plaintiff makes an oath in writing, that he believes that any person or corporation to be named, and within the county, has prop- erty (describing it) of the defendant, and if the ofBcer cannot come at such property to attach it, he may leave a notice with the garnishee to appear at court. Also o\ return of an execution, unsatisfied, the judgment creditor may have a writ of garnishment. Judgment is lien on lands within the county where it was rendered, from the date of rendition, and in other counties from the filing a transcript with the clerk of the court, and the lien continues for five years. All other lands, as well as goods and chattels are bound, from the time of seizure on execu- tion. Judgments bear interest at ten per cent., unless they are on written contracts which name a different rate ; in which case such rate, not exceed- ing twelve per cent , is taken. Stay Laws. Stay of execution is allowed as follows : In the probate court ; on sums over one hundred dollars, i;i the same manner as in the dis- trict court; on sums of one hundred dollars and under, as in courts of jus- tices of the peace. In the district court, execution may be stayed one year, if defendant within twenty days after judgment shows that he owns real property in the county of sufficient value over incumbrances to pny the judgment, or if he gives bond with surety to pay the debt. In justices' courts on giving a similar bond as follows : On silms not exceeding five dol- lars, sixty days ; between five and fifty dollars, ninety days ; between fifty and one hundred dollars, six months. ExEi^PTioxs. To heads of families having no homestead, there is exempt five hundred dollars' worth of personal property. Homestead of one hundred and sixty acres not in an incorporated city or village, or in lieu thereof, two contiguous lots on a recorded plot in a city, town, or village, or a lot of twenty acres within the limits of an incorporated city, town, or v'.lbge, but not cut up into lots or squares. Of personal property : i. Family Bible. 2. Family pictures, school-books, and library for use in the family, 3. Seat or pew in church. 4. Lot in burying-ground. 5. Necessary wearing apparel, beds, bedding, and bedsteads necessary for the family, all stoves and apparatus, not exceeding four, cooking utensils and other household furniture not enumerated, not exceeding one hundred dollars in value. 6. One cow, three hogs, and all pigs under six months, and if the debtor be actually engaged in agriculture, one yoke of oxen, or in lieu thereof, one pair of horses, ten sheep, and the wool therefrom, raw or manufactured, necessary food for stock for three months, one wagon, cart, or dray, two plows, and one drag, necessary gear, and farming implements, ret exceeding fifty dollars in value. 7. Provisions and fuel for six months. 8. Tools, instruments of a mechanic or miner, or other person used for carrying on his trade or business, library and implements of a professional man. NEVADA. — AcTioxs. There is only one form of action, which is pros- ecuted by the real party in interest, and is begun in the district court by fihng a complaint with the clerk, and issuing a summons thereon. The defendant may appear voluntarily, when he waives notice of the summons. ABSTRACT OF THE COZLECTION OF DEBTS. 727 Arrest. Defendant may be arrested and held to bail i. In an action for the recovery of money, or damages in an action on contract, where he is about to leave the State with intent to defraud his creditors, or where the action is for libel or slander. 2, In an action for a fine or penalty, or for embezzlement, or fraudulent misappropriation of money by a public officer of a corporation, or an attorney, agent, broker, etc. 3, In an action to recover property unjustly detained, where the property has been removed or con- cealed. 4. Where the defendant fraudulently contracted the debt. 5. Where the defendant has or is about to dispose of his property fraudulently. Plain- tiff must make affidavit of one of the above grounds. Attachment may be had 3,1 any time — i. In an action of contract for the direct payment of money payable in Nevada, and not secured. 2. In an action of contract against a non-resident, on an affidavit filed with the clerk of the court, stating one of the grounds mentioned under arrest. Garnishment. Debts and credits of the defendant in the hands of third parties may be attached on original process ; and on receiving infor- mation from the plaintiff the sheriff may summon them to appear. Judgment is a lien in the county where it was rendered from the time of docketing, and in other counties from date of filing a transcript, the lien continues for two yea.rs. The legal rate of interest on judgments is ten per cent., but parties may stipulate for any rate by contract, which is fol- lowed in the judgment. There is no stay cf execution except on appeal. Exemptions, i. Chairs, tables, desks, and books to the value of one hundred dollars. 2. Necessary household, table, and kitchen furniture, including stove and stove utensils, wearing apparel, beds, bedding, and bed- steads, provisions and firewood for one month. 3. Farm utensils, also two oxen, or horses, or mules and their harnesses, two cows, one cart or wagon, and food for stock for one month, seed grain or vegetables for planting or sowing within six months, to the value of two hundred dollars. 4. Tools and implements of mechanic or artisan necessary to their trade, and instru- ments and chests of a surgeon, physician, surveyor, or dentist, necessary for their profession, with their scientific or professional libraries, and library of an attorney or clergyman. 5. Cabin of a miner not exceeding five hun- dred dollars in value, also all mining apparatus and tools to the value of five hundred dollars, and two horses, mules, or oxen, and their harness. 6. Two oxen, horses, or mules, and their harness, and cart by which a carter or teamster, etc., earns his living, one horse, vehicle, and harness necessary for a physician or clergyman, and food for one month. 7. Sewing-machine to the value of one hundred and fifty dollars and in actual use. 8. Fire engines and apparatus, etc. 9. Arms and accoutrements of a militia-man. 10. A homestead not exceeding in value five thousand dollars. NEW HAMPSHIRE. — Actions are begun by a summons, attachment, and capias, trustee process, or replevin, in forms which are prescribed by statute. Attachment. All property not exempt from being taken on execution 728 ABSTRACT OF THE COLLECTION OF DEBTS. may be attached, of right, without any affidavit, and the lien continues for thirty days after judgment. Arrest. The defendant may be arrested on an action of contract if the debt or damage, exclusive of all costs, amounts to thirteen dollars and thirty- three cents, on an affidavit made before a justice of the peace that the aflSant believes that the defendant is justly indebted to the plaintiff, and that he conceals his property so that no attachment can be made, or that he has good reason to believe that he is going to leave the State to avoid payment of his debts. Garnishment, called Trustee Process. All actions except replevin, trespass to the person, and defamation and malicious prosecution, may be begun by trustee process. It is in the form of an attachment and summons, and the names of other parties may be inserted in the writ as trustees, at any time before service on the defendant. Judgment is not a lien. (See Attachment.) There is no stay of exe- cution. Exemptions, i. Wearing apparel necessary for the debtor and his family. 2. Comfortable beds, bedding, and bedsteads for himself and his family. 3. Furniture to the value of one hundred dollars. 4. Bibles, school- books, and library to the value of two hundred dollars. 5. One cow. 6. One hog, one pig, and the pork of the same when slaughtered. 7. Tools of his occupation not exceeding one hundred dollars in value. 8. Six sheep and their fleeces. 9. Cooking-stove and necessary furniture for the same- 10. Provisions and fuel to the value of fifty dollars. 11. Uniform and accoutrementsof a'militia man. 12. Pewinachurch. 13. A lot in aburying- ground. 14. One sewing-machine. 15. Beasts of the plow not exceeding one yoke of oxen or a horse, and hay not exceeding four tons. Also a home- stead of the head of a family not exceeding in value five hundred dollars. NEW JERSEY. — Actions under the provisions of the common law, as modified by statute, are begun by writs of summons, capias, or warrant, attachment, etc. Arrest. A writ of capias issues on an affidavit before a Judge of the Supreme Court or a Supreme Court Commissioner, specifying the nature and particulars of the debt, and one or more of the following causes : i. That the defendant is about to remove any property out of the jurisdiction of the court with intent to defraud creditors. 2. That the defendant has property or rights which he fraudulently conceals. 3. That he has, or is about to assign, remove, or dispose of his property with intent to defraud his creditors. 4. Or that the debt was fraudulently contracted. Defendant may be arrested on execution for one of the preceding causes, or that he has in his posses- sion or under his control property to the value of fifty dollars, which he refuses to pay over on the execution. Attachment. A writ may issue on affidavit on behalf of the creditor that the defendant has < absconded, and is not, to his belief, a resident of the State, or against a defendant living out of the State. ABSTRACT OF THE COLLECTION OF DEBTS. 729 Garnishment is allowed. Judgment is a lien on real estate from tlie time of entry of judgment, and remains a lien for the period of limitation, twenty years, and bears interest at seven per cent. Stay Laws. Stay of execution is allowed only in justices' courts, where defendant appears on the day judgment is given and gives a bond with surety,— on sums not exceeding fifteen dollars, one month ; between fifteen and sixty dollars, three months ; and over sixty dollars, six months. Exemptions. Goods and chattels of every kind (not including wearing apparel) to the value of two hundred dollars, and wearing apparel of the debtor having a family. Also the lot and building owned and occupied by the debtor, if he is head of a family, to the value of one thousand dollars. NEW YORK. — Actions are begun by the service of a summons, specify- ing the names of all parties, on the defendant personally, if within the State. Arrest. The defendant may be arrested on mesne process. I. To recover a fine or penalty. 2. Or damages for injury to person or property, other than the taking, detaining, or conversion of the same, breach of promise to marry, misconduct or negligence in an official or professional employment, fraud, and deceit. Also, i. When the action is to recover a chattel, concealed or disposed of in order to prevent the plaintiff from obtaining the same. 2. To recover on a contract other than a promise of marriage, when the defendant has been guilty of fraud in contracting the debt, or has, or is about to dispose of his property with intent to defraud his creditors. Attachment may issue where the complaint demands judgment for a sum of money only, and one of the following causes : i. For breach of con- tract other than a promise to marry. 2. For wrongful conversion of personal property. 3. For the loss of, or damage, or injury to, personal property by fraud, negligence, or other misconduct, on an affidavit showing sufficient cause and that defendant is a foreign corporation or a non-resident, or that he has departed from the State with intent to defraud creditors, or to avoid service, or keeps himself concealed with like intent, or has or is about to remove his property from the State with intent to defraud creditors, or has, or is about to assign or dispose of his property with like intent. Judgment is a lien on the real estate of defendant from the time of docketing in the county where the land is situate, and remains a lien for ten years. There is no stay of execution in New York. Exemptions. Of a householder : i. Spinning-wheels, weaving-looms, and stoves put up and for use in the dwelling-house, and one sewing machine and appurtenances. 2. Family Bible, family pictures, school-books, and other books not exceeding fifty dollars in value. 3. Seat or pew in church. 4. Ten sheep and their fleeces, and yarn or cloth manufactured therefrom, one cow, two swine, necessary food for animals, and for the household, and fuel, oil, and candles for sixty days. 5. Wearing apparel, beds, bedding and 730 ABSTRACT OF THE COLLECTION OF DEBTS. bedsteads necessary for the family, necessary cooking utensils, one tabk, six chairs, six knives and forks and spoons, six plates, six teacups and saucers, one sugar dish, milk pot, teapot, crane and appendages, pair of andirons, coal-scuttle, shovel, pair of tongs, lamp, and candlestick. 6. Tools and implements of a mechanic and necessary for carrying on his trade not exceeding twenty-five dollars in value. In addition, necessary household furniture, working tools and team, professional instruments, furniture and library, together with necessary lood for the teamfor ninety days. A burying- ground actually occupied and not exceeding a quarter of an acre. Home- stead of a householder having a family, owned and occupied by him, to the value of one thousand dollars. NOBTH CABOLINA.— Actions. The distinctions between law and equity and the forms of actions are abolished, and there is but one form of action, which is begun by issuing a summons from the clerk of the court, and which is prosecuted in the name of the real party in interest, except in case of executors, etc. Arrest. Defendant may be arrested and held to bail in an action of contract where the defendant is a non-resident or is about to remove from the State ; and in an action for damages not on contract, for injury to the person or character, or for the wrong-taking, detaining, or converting of property. 2. In an action for a fine or penalty, or for breach of promise of marriage, or for money received, or property embezzled, or fraudulently misappropriated by a public officer, attorney, solicitor, officer of a corpora- tion, factor, agent, or broker, or for misconduct or negligence in office. 3. In an action to recover personal property unjustly detained and concealed so that the sheriff cannot find it. 4. Where the debt was fraudulently con- tracted, or where defendant fraudulently conceals or disposes of the prop- erty for which action is brought, or when the action is for damages for fraud or deceit. 5. Where defendant has removed or disposed of his property, or is about to do so, with intent to defraud creditors. Plaintiff must make affidavit of the cause of action, and showing one of the above grounds. Attachment is allowed at the time of issuing summons, or at any tims thereafter, in an action on contract for the recovery of money only, or in an action for the wrongful conversion of personal property, or against a foreign corporation or a non-resident, or against a defendant absconding or conceal- ing himself, or who is about to remove his property from the State, or who has assigned, secreted, or disposed of his property, or is about to do so, with intent to defraud creditors, on an affidavit specifying the cause of action, the amount, grounds, and one of the above reasons. Garnishment. There is no distinctive process of garnishment ; it is only allowable by original attachment. Judgment is a lien on real estate in every county from the time of dock- eting or filing a transcript thereof, and remains a lien for ten years ; bears interest at six per cent., or at a rate not exceeding eight per cent., if speci- fied in the agreement sued upon. ABSTRACT OF THE COLLECTION OF DEBTS. ;3i Stay-Laws. Stay of execution is allowed on judgments rendered since May I, 1865, in justices' courts, as follows ; On sums not exceeding twenty- five dollars, one month ; between twenty-five and fifty dollars, three months ; between fifty and one hundred dollars, four months ; over one hundred dol- lars, six months. Defendant must give bond with surety. Exemptions. Homestead occupied by the debtor to the value of one thousand dollars ; also personal property, to be selected by the debtor, to the value of five hundred dollars. OHIO. — Actions. All distinctions are abolished ; must be prosecuted in the name of the real party in interest except in case of executors, etc., and are begun by filing with the clerk of the court a petition, and causing a sum- mons to issue thereon. Plaintiff must also file a precite, stating the names of the parlies and demanding a summons thereon. Arrest. Defendant may be arrested on affidavit made before any judge, clerk of the court, or justice of the peace, stating the nature and amount of the claim, that it is just, and one of the following grounds : i. That the defendant has removed, or is about to remove, his property out of the jurisdic- tion of the court with intent to defraud creditors. 2. That he has begun to convert his property into money with intent to place it beyond the reach of his creditors. 3. That he has property or rights that he fraudulently con- ceals. 4. That he has assigned, removed, or disposed of, or has begun to do so, his property, with intent to defraud creditors. 5. That the debt was fraudulently contracted. The affidavit must also state the facts claimed to justify belief in the ground alleged, and the order may issue at any time before judgment. Officers and soldiers in the revolutionary war, and all females, are privi- leged from arrest or imprisonment on all process, mesne or final, for any debt or demand founded on contract. Attachment is granted on an affidavit stating the nature, amount, and justice of the cause, and one of the following causes : i. That the defend- ant is a foreign corporation or a non-resident. 2. Or has absconded with intent to defraud creditors. 3. Has left the county of his residence to avoid service of the summons. 4. So conceals himself that service cannot be had on him. 5. Is about to remove his property beyond the jurisdiction of the court to defraud his creditors. 6. Is about to convert his property into money to place it beyond the reach of his creditors. 7. That he has prop- erty or rights of action which he conceals. 8. lias assigned or removed, or is about to assign or remove his property with intent to defraud creditors. 9. That the debt was fraudulently contracted. But attachment is not to issue on the ground that the defendant is a foreign corporation or non-resi- dent, for any claim other than a debt or demand arising on a contract, judg- ment, or decree. Garnishment. If the plaintiff, or some one on his behalf, shall make oath in writing that any person or corporation named has any property of the defendant (describing it), such person or corporation may be summoned as garnishee. 732 ABSTRACT OF THE COLLECTION OF DEBTS. Judgment is a lien on real estate within the county where rendered, from the first day of the term, except judgments by confession, which bind from the date of such confession. All other lands and goods and chattels are bound from the date of seizure on execution. Lien continues for five years, but execution must issue on the judgment within one year or the lien is lost. Judgment bears interest at six per cent. Stay-Laws. Stay of execution is allowed only in justices' courts on giving bond with surety within ten days after judgment was given, as follows: On sums not exceeding five dollars, sixty days ; between five and twenty dollars, ninety days ; between twenty and fifty dollars, one hundred and fifty days ; of fifty dollars and over, two hundred and forty days. Exemptions. The homestead of the head of a family to value of one thousand dollars, or if he does not own any homestead, he may select per- sonal or real property to the value of five hundred dollars in addition to the amount exempt below, of personal property: i. Wearing apparel, beds, bed- ding and bedsteads necessary for the family, one cooking-stove and pipe, and one stove and pipe used for warming, and fuel for sixty days actually provided. 2. One cow, or if debtor has no cow, household furniture to the value of thirty-five dollars, two swine or their pork, or in lieu thereof, house- hold property to the value of fifteen dollars, six sheep and the wool and cloth therefrom, or household furniture to the value of fifteen dollars, and food for such animals, if any, for sixty days. 3. Bible, hymn-books, psalm- books, testaments and school-books, and family pictures. 4. Provisions actually provided to the value of fifty dollars, and other articles of house- hold and kitchen furniture to the value of fifty dollars. 5. One sewing-ma- chine, one knitting-machine, tools and implements for trade not exceeding one hundred dollars in value. 6. Personal earnings of the debtor or his minor children for three months previous to the rendition of judgment, on an affidavit that it is necessary for the support of the family. 7. All articles, specimens, and cabinets of natural history or science, unless the same are used for a show or for making money. In addition to the above, to a head of a family who is a drayman, one horse, harness, and dray; or who is engaged in agriculture, one horse or yoke of cattle, the necessary gear and one wagon ; or, if a person practicing medicine, one horse, saddle and bridle, and books, medicines, and instru- ments not exceeding in value one hundred dollars. Of the property of an unmarried woman — wearing apparel to the value of one hundred dollars, sewing-machine, knitting-machine, Bible, hymn- book, psalm-book, and other books to the value of twenty-five dollars. OREGON. — Actions. All distinctions are abolished ; there is but one form, which is prosecuted in the name of the real party in interest, except in case of executors, administrators, etc., and which is begun by filing a com- plaint with the clerk of the court, and causing at any time a summons to issue thereon to be served on the defendant. Arrest. Defendant may be arrested at any time before judgment, on ABSTRACT OF THE COLLECTION OF DEBTS. 711 filing an affidavit with the clerk of the court. I. In an action for the recov- ery of money, or damages on a contract when the defendant is a non-resi- dent, or is about to remove from the State, or when the action is for injuries to the person or character, or injuries to, or wrong-taking, detaining, or con- verting of property. 2. In an action for a fine or penalty, or for money received, or property embezzled or fraudulently misappropriated, or converted by a public officer or attorney, or officer of a corporation, as such, or by a factor, agent, or broker, or for misconduct or neglect in office. 3. In an action to recover possession of personal property detained, when it is con- cealed so that it cannot be found by the officer, with intent to deprive the plaintiff of the use thereof. 4. Where the debt was fraudulently contracted. 5. Where defendant has removed, or disposed of his property, or is about to do so, with intent to defraud creditors. Attachment may issue at any time after entry and before judgment, in an action to recover money or damages, on filing an affidavit stating the cause and grounds of the action, and one of the following : i. That de- fendant is a foreign corporation. 2. Non-resident, or has departed from' the State with intent to delay or defraud creditors, or to avoid service of sum- mons, or keeps himself concealed so that service cannot be had on him. 3. Has removed, or is about to remove h^ property, or any of it, from the State, with intent to delay or defraud creditors. 4. Has assigned or dis- posed of his property, or is about to do so, with intent to delay or defraud creditors. 5. Was guilty of fraud in contracting the debt. Garnishment is allowed on original process by attachment ; there is no distinctive process. Judgment is a lien on real estate in the county where it was rendered, from the date of docketing, and in other counties from the filing a transcript in such county, and continues as such for ten years, and bears interest at ten per cent, unless a different rate was contracted for, when such rate is taken not exceeding twelve per cent. There is no stay of execution in Oregon. Exemptions, i. Books, pictures, and rrusical instruments to the value of seventy-five dollars. 2. Necessary wearing aopar ' of the debtor to the value of one hundred dollars, 01 if a hous h-lder, clothing for each member of the family to the value of fifty doi. .rs. 3. Tool , iinplements, apparatus, team, vehicle, harness, or library necessary for the trade, occupation, or pro- fession of the debtor to the value of four hundred dollars, and sufficient food for the team for sixty days. 4. Of property of a householder ten sheep and one year's fleece, or the yarn or cloth therefrom, two cows, five swine, household goods, furniture and utensils to the value of three hundred dollars, food for animals for three months, and for the family for six months. 5. Seat or pew in a church. There is no homestead exemption. PENNSYIiVANIA.— Actions. Personal actions, except in some special cases, are begun by a summons, and the common law prevails. Arrest. A writ of capias may issue in actions of tort. Special capias 47 734 ABSTRACT OF THE COLLECTION OF DEBTS. issues on an affidavit of the cause of action and that the defendant is about to leave the Commonwealth without leaving sufficient property to satisfy the demand. No person can be arrested in an action to recover money due oa a judgment or contract, or for damages for the non-performance of a con- tract except in process, as for contempt, to enforce civil remedies in actions for fines or penalties, for breach of promise of marriage, for money collected by a public officer, or for misconduct or neglect in office. But after bringing suit, before or after judgment, he may be arrested on affidavit, that defend- ant is about to remove his property beyond the jurisdiction of the court to defraud creditors, or that he has property fraudulently concealed, or rights of action or interest, which he refuses to apply to the payment of his debts, or that he has assigned, removed, or disposed of his property, or is about to do so, with intent to defraud creditors, or that he fraudulently contracted the debt. Attachment. Property of the defendant may be attached, if the plain- tiff makes affidavit that the defendant is justly indebted to him in a sum exceeding one hundred dollars, stating the nature and amount of the claim, and that defendant is about to remove his property out of the jurisdiction of the court, or that he has property or rights that he fraudulently conceals, or that he has assigned, disposed of, Of concealed his property, or is about to do so, with intent to defraud creditors, or that he fraudulently contracted the debt. Garnishment. Attachment may issue after judgment, on the property or debts due the defendant in the hands of third parties, and garnishee may be summoned in. Judgment bears interest at six per cent., and is a lien on real estate in the county where rendered. It may be transferred to other counties and continues a lien for five years, but after that may be revived by scire facias. Stay Laws. Stay of execution is allowed on judgments in actions of contract, by giving bond with surety, or offering sufficient unincumbered real estate, as follows : On sums not exceeding two hundred dollars, six months ; between two hundred and five hundred dollars, nine months ; over five hundred dollars, one year. In justices' courts, as follows : On sums not exceeding twenty dollars, three months ; between twenty and sixty dollars, six months ; over sixty days, nine months. There is no stay on judgments for one hundred dollars or less, for wages of manual labor. Exemptions. Property to the value of three hundred dollars, exclu- sive of wearing apparel of the defendant and his family, and all Bibles and school-books in use in the family, and nothing more. There is no home- stead exemption. RHODE ISLAND.— Actions are begun by original writ of summons, arrest, or attachment. The common law, as modified by statute, prevails. Arrest. Writ of arrest may issue, i. To recover debts which accrued before July i, 1877. 2. In actions on penal statutes or of tort. 3. In any action of contract, on affidavit to be annexed to the writ, that the claim is ABSTRACT OF THE COLLECTION OF DEBTS. 735 just and that the plaintiff expects to recover enough to give the court juris- diction ; and also, either that defendant is about to leave the State without leaving sufficient property to be taken on execution, or that the defendant committed fraud in contracting or in concealing or disposing of it. Plaintiff, after commencement of the action,, may sue out the writ to arrest at any time before judgment, by making a similar affidavit. Attachment. Writ of attachment issues against property of the defendant and personal property in the hands of third parties, as trustees, on an affidavit by the plaintifE that he has a good cause of action and expectation of recovering enough to give jurisdiction to the cotu-t, and either that defendant is a foreign corporation, or non-resident, or is out of the State, not to return in time to be served with process, or that he committed fraud in contracting the debt, or in concealing or disposing of his property, or that since contracting the debt the defendant has had property which he refuses to apply to the payment of the debt. Garnishment issues by original writ of attachment against personal property of the defendant in the hands of a third party. {See Attach- ment.) Judgment is not a lien on real estate. It bears interest at six per cent. There is no stay of execution. Exemptions, i. Wearing apparel of the defendant and his family, if he has one. 2. Working tools of the debtor necessary to his occupation to the value of two hundred dollars. 3. Household furniture and stores of a housekeeper, including beds and bedding, not exceeding three hundred dollars in value. 4. Bible, school, and other books to the value of three hundred dollars. 5. One cow, and one and a half tons of hay of a house- keeper. 6. One hog, one pig, and pork of the same, of a housekeeper. 7. Uniform and accoutrements of a militia man. 8. Pew in church. 9. Lot in burying-ground. 10. Mariners' wages until after the termination ©f the voyage on which they were earned. 1 1. Debts secured by bills of exchange or negotiable promissory notes. 12. Salary or wages to the amount of ten dollars, when the cause of action is not for necessaries. There is no home- stead exemption. SOUTH CAB.OLIITA. — Actions. All distinctions between actions are abolished, and there is but one form for all civil actions, prosecuted in the name of the real party in interest, except in case of executors, administra- tors, etc., and begun by the service of a summons. Arrest. Defendant may be arrested on affidavit on the part of the plaintiff, i. In an action to recover damages other than for breach of con- tract, where defendant is a non-resident, or is about to remove from the State, or where the injury complained of is to the person or character, or for wrong taking, detaining, or converting property. 2. In an action for a fine or penalty, or for money received or property embezzled or fraudulently misappropriated by a public officer or an attorney, or officer or agent of a corporation, as such, or factor, agent, or broker, or for any misconduct or 736 ABSTRACT OF THE COLLECTION OF DEBTS. neglect in official or professional employment. 3. In an action to recover possession of personal property wrongfully detained, when the property is so removed that it cannot be found by the sheriff, and removed with intent to deprive plaintiff of possession of the same. 4. Where the defendant was guilty of fraud in contracting the debt. 5. Where the defendant has removed or disposed of his property, or is about to do so, with intent to defraud creditors. Attachment may issue in an action of contract to recover money only, or for the wrongful conversion of property where the defendant is a foreign corporation or a non-resident, or has absconded or concealed himself, or is about to remove his property from the State, or has assigned, disposed of, or secreted his property, or is about to do so, with intent to defraud creditors, on an affidavit stating one of the above grounds. Garnishment is known only by attachment. Judgment is a lien on real property for ten years ; and judgments for money bear interest; at seven per cent. There is no stay of execution. Exemptions. Homestead of the head of a family not exceeding in value one thousand dollars ; personal property, furniture, beds, bedding, family library, arms, carts, wagons, farming implements, tools, cattle, work animals, swine, goats, and sheep, not to exceed in value five hundred dollars, and all necessary wearing apparel. TENNESSEE. — Actions. There is only one form for all actions which are begun by a summons issued by the clerk of the court and directed to the sheriff. Arrest. There is no arrest for debt in Tennessee. Attachment maybe had at the commencement of the action for a debt or demand due or after action begun, either before or after judgment, for any cause, where, i, the debtor is a non-resident ; 2, or is about to remove himself or his property out of the State ; 3, or has removed out of the county of his resijdence privately ; 4, or has concealed himself so that process cannot be served on him ; 5, has absconded or concealed himself or his property ; 6, has fraudulently disposed of his property, or is about to do so ; 7, where any person liable for a debt, and a non-resident, dies leaving property within the State. The plaintiff or his agent must make an oath in writing of the nature and amount of the debt, and one of the above causes. Garnishment. Where property, choses in action, or effects of the de- fendant are in the hands of a third party, or such party is indebted to the defendant, attachment may issue by garnishment. Also on execution, where the sheriff cannot find sufficient property to satisfy the execution. Judgment is a lien on real estate, in the county where rendered, from the date of rendition, and in other counties from the date of registration of a certified copy ; but the lien is lost unless execution is taken out and the land -Sold .within twelve months after rendition. Judgment bears interest ABSTRACT OF THET COLLECTION OF DEBTS. 737 at six per cent., unless there is a different rate expressed in the contract, when such rate is followed, not exceeding ten per cent. There is no stay of execution. Exemptions. Thirty dollars, wages of a mechanic or laboring man, if the same are due. Personal property of the head of a family, two beds, bedsteads, and bedding, and for every three children one additional !jed, etc. ; all not to exceed twenty-five dollars m value ; two cows and calves, and if the family consist of six persons or more, three cows and calves ; one dozen knives and forks, one dozen plates, six dishes, set of table- spoon;, set of teaspoons, tray, two pitchers, waiter, one coffee-pot, one tea- pot, csmister, cream-jug, one dozen cups and saucers, one dining-table, and two table cloths, one dozen chairs, one bureau, not to exceed forty dollars in value, one safe or press, one wash-basin, one bowl and pitcher, one washing- kettle, two washing-tubs, one churn, one looking glass, one chppping-axe, one spinning-wheel, one loom and gear, one pair cotton-cards, one pair wool- cards, one cooking-stove and utensils, one set ordinary cooking utensils, one meal-sieve, one wheat-sieve, one cradle, Bible and' hymn-book, and all school-books, two horses or two mules, or one horse and one mule, one yoke of oxen and gear, one two-horse or one horse wagon to the value of seventy-five dollars, and the harness, one man's saddle, one woman's saddle, two riding-bridles, twenty-five bushels of corn, twenty bushels of wheat, five hundred bundles of oats, five hundred bundles fodder, one stack of hay to the value of twenty-five dollars ; if the family is less than six per- sons, one thousand pounds of pork slaughtered or on foot, or six hundred pounds of bacon ; or if the family consists of more than six persons, twelve hundred pounds of pork, or nine hundred pounds of bacon, all poultry to the value of twenty-five dollars, homestead carpet manufactured by the wife or a female member of the family for family use, six cords of wood or one hundred bushels of coal, one sewing-machine. If the head of the family is engaged in agriculture, two plows, two hoes, one grubbing-hoe, one cutting- knife, one harvest-cradle, plow-gears, one pitchfork, one rake, three iron wedges, five head of sheep, ten stock hogs, also the tools of a mechanic, one gun to every male person ; to a head of a family, fifty pounds of picked cotton, twenty-five pounds wool, leather for winter shoes, and to each mechanic fifty dollars' worth of lumber and materials. A homestead of the head of a family of the value of one thousand dollars. TEXAS. — Actions are begun by petition filed with the clerk of the court upon which a citation issues to the defendant. Arrest for debt is abolished. Attachments may issue upon an affidavit by the plaintiff or his attorney, stating that the debt is a just one, and the amount of the same, together with one of the following grounds : i. That defendant is a non-resident. 2. That he is about to remove out of the State. 3. Or has abandoned the country. 4. Or that he secretes himself so that process cannot be served on him. 5. That he is about to remove his property out of the State. 738 ABSTRACT OF THE COLLECTION OF DEBTS. 6. That he is about to remove his property beyond the jurisdiction of the court. 7. That he is about to transfer or secrete his property, or has done so with intent to defraud creditors, and that thereby the plaintiff is in danger of losing his debt ; and he must also swear that the attachment is not sued out for the purpose of injuring the defendant, and that the original petition is true. Garnishment may issue after suit brought on affidavit that the amount claimed is just, due, and unpaid ; that he does not know of any property of defendant not exempt, sufficient to satisfy the claim, and that he believes that any parties (naming them) are indebted to the defendant, or have prop- erty or effects of the defendant ; also, where judgment has been rendered, or attachment sued out on affidavit. Judgment is a lien on real estate in the county where it was rendered, and in other counties it becomes such by filing a transcript. The lien con- tinues for ten years, but unless execution issues within twelve months it ceases to bind the property. Stay Laws. Stay of execution is allowed only in justices' courts for three months, on giving bond with good security. Exemptions. A homestead of two hundred acres not in any town or city, or a lot, or lots, in a city, town, or village, not to exceed five thousand dollars in value. Also to every head of a family, all household and kitchen furniture, all implements of industry, tools or apparatus of trade or pro- fession, books of private or public library, five milch cows and calves, two yoke of oxen, two horses and one wagon, o e carri..^e or buggy, one gun, twenty hogs, twenty head of sheep, all provisions and forage for home use, bridles, saddles, and harness necessary for the use of the family; to every person not the head of a family, a horse, bridle, saddle, necessary wearing apparel, tools, apparatus, and books of his private library. VERMONT.— Actions. The common law is in force, and the old actions are in use. Process is by writ of summons or attachment. Writs run into any county, and must be served twelve days at least before the return day. Attachment issues of right on original writ. Personal property attached must be taken possession of by the officer. It is a lien on personal property for thirty days after judgment, and real property for five months from such judgment. Arrest. Defendant may be arrested in any action of tort, and in an action of contract, or on execution issued in an action of contract, on an affidavit that the affiant believes that defendant is about to abscond, and has secreted his property to the amount of twenty dollars not exempt. Garnishment is called Trustee Process. Actions may be begun by trustee process, and any persons having goods, effects, or credits, may be summoned and the property attached. Debts and legacies, absolutely due, may be so attached, and corporations summoned as trustees. ABSTRACT OF THE COLLECTION OF DEBTS. 739 Judgments bear interest at six per cent., and are not liens on real prop- erty. {See Attachment.) There is no stay of execution. Exemptions. Suitable apparel, bedding, tools, arms, and articles of household furniture necessary for the debtor and his family, one sewing- machine, one cow, the best swine, or meat from one swine, ten sheep, and one year's produce in wool, yarn, or cloth, forage for ten sheep and one cow for the winter, ten cords of firewood, twenty bushels of potatoes, military arms and accoutrements of militiamen, all growing crops, ten bushels of grain, one barrel of flour, three swarms of bees, and hives and produce in honey, two hundred pounds sugar, lettered gravestones. Bibles and other books used in the family, one pew in church, live poultry to the value of ten dollars, professional books and instruments of physician, professional books of an attorney or clergyman to the value of two hundred dollars, one yoke of oxen or steers, and forage for the winter, two horses kept and used for team work, and such as the debtor may select in lieu of one yoke of oxen or steers, but not exceeding two hundred dollars in value, and forage for the winter. A homestead of a housekeeper, or head of a family, to the value of five hundred dollars. VIRGINIA. — Actions. The common law forms remain, and actions are begun by original writ and summons, returnable in ninety days. The assignee of a bond or note may sue in his own name. Attachment is allowed — i. On a suit for debt or damages for a breach of contract, on an affidavit stating the amount and justice of the claim, and that there is a present cause of action, and that the defendant is a non-resi- dent, and has property in the county. 2. At any time, where the suit is to recover specified personal property, on an affidavit as above, and stating the value of the property, or where the action is to recover damages for a wrong done, on affidavit stating the amount it is expected will be recovered, and that the defendant is removing his property, or the proceeds of his property, from the State, so that execution, if obtained, cannot be levied on it. 3. On complaint in any claim, showing that the defendant is removing his property out of the State. Arrest. Defendant may be arrested on an affidavit showing the cause of action, and that the defendant is about to quit the State. Garnishment is allowed on original attachment against any person hav- ing goods, effects, or credits of the defendant, or who is indebted to him, and also on writ of fieri facias, on suggestion by the judgment creditor that there is a lien by such writ oi fieri facias on any third party as having projv erty of the defendant. Judgment is a lien on real estate in every county from the time of docker eting in such county, but it must be docketed within sixty days, or fifteen days prior to the purchase of such real estate from the debtor ; execution to issue within one year. The lien may always be enforced in a court of equity. If it appears to the court that the rents and profits of the property subject to the lien will not satisfy the judgment in five years, it may order the prop- 740 ABSTRACT OF THE COLLECTION OF DEBTS. erty, or part of it, to be sold, and apply the proceeds to discharge the judgment. There is no stay of execution. Judgments bear interest at six per cent. Exemptions. To a housekeeper and the head of a family — i. Family Bible. 2. Family pictures, school-books and library for family use, to the value of one hundred dollars. 3. Seat or pew in church. 4. Lot in a bury- ing-ground. 5. Necessary wearing apparel, beds, bedding, and bedsteads, stoves and appendages put up, and necessary for the family, not exceeding three. 6. One cow, one horse, six chairs, one table, six knives, forks, and plates, one dozen spoons, two dishes, two basins, one pot, one oven, six pieces wood or earthen ware, one loom and appurtenances, one safe or press, one spinning-wheel, one pair of cards, one axe, two hoes, live barrels corn, five bushels wheat, or one barrel flour, two hundred pounds of pork or bacon, three hogs, forage or hay to the value of ten dollars, one cooking- stove and utensils, one sewing-machine, mechanic's tools and utensils, to the value of one hundred dollars. If the debtor is engaged in agriculture, one yoke of oxen, or pair of horses or mules, with the necessary gearing, one wagon or cart, two plows, one drag, one harvest cradle, one pitchfork, one rake, two iron wedges, a homestead of real estate or personal property to the value of two thousand dollars. "WEST VIErGINIA.— Actions. The old forms of actions and writs are preserved, and actions are begun by service of summons returnable in ninety days. The assignee of a bond, note, or writing not negotiable, may sue in his own name. Attachment is allowed in actions for executed claim or debt on contract, or for damages for any wrong, on an affidavit on behalf of the plaintiff, stating the nature and amount of the claim, and, i. That defend- ant is a foreign corporation or non-resident. 2. That he has left, or is about to leave, the State with intent to defraud creditors. 3. That he so conceals himself that service cannot be had on him. 4. That he has removed, or is about to remove, his property from the State, with intent to defraud credit- ors. 5. That he has converted, or is about to convert, his property into money with intent to defraud creditors. 6. That he has assigned or disposed of his property, or is about to do so, with intent to defraud creditors. 7. That he has property or rights which he conceals. 8. That he fraudulently contracted the debt. Arrest. Defendant may be arrested and held to bail on an affidavit stating the nature and justice of the claim, and the amount, and, i. That defendant has removed, or is about to remove, his property from the State, with intent to defraud creditors. 2. That he has converted, or is about to convert, his property into money with like intent. 3. Or has assigned, dis- posed of, or removed his property, or is about to do so, with like intent. 4. That he has property or rights in action which he fraudulently conceals. 5. That he fraudulently contracted the debt. 6. That he is about to leave the State permanently. ABSTRACT OF THE COLLECTION OF DEBTS. 741 Garnishment. In the writ of attachment, the plaintiff may designate any third parties as having effects of the defendant in their hands, and such parties may be summoned as garnishees. Judgments bear interest at six per cent.; are hens on real estate in every county fromJ:he date of docketing in the county where the land is, and the lien continues for ten years, if execution is taken out within two years, but the judgment must be docketed within ninety days from the date of rendition, or before any deed from the debtor to a third party is delivered for record. A writ oi fieri facias is a lien on personal property from the time of delivery to the sheriff. Stay Law. In justices' courts, by giving bond with surety, stay of exe- cution is allowed as follows : Where the judgment, exclusive of interest and costs, does not exceed ten dollars, one month ; between ten and twenty dollars, two months ; between twenty and fifty dollars, three months ; over fifty dollars, four months. Exemptions. A homestead of the husband or parent, or of infant chil- dren of deceased parents, to the value of one thousand dollars, and per- sonal property to the value of two hundred dollars, the working tools of a mechanic, artisan, or laborer, to the value of fifty dollars, provided the whole amount of exemptions does not exceed two hundred dollars. WISCONSIN. — Actions. All distinctions have been abolished, and there is now but one form, which must be prosecuted in the name of the real party in interest, except in case of executors, administrators, and trustees, and which is begun by the service of a summons on the defendant, to be answered within twenty days. Arrest. Defendant may be arrested, i. In an action to recover damages not on contract, where the defendant is a non-resident, or is about to remove from the State, or where the action is for injury to the person or character, or for injury to, or wrong taking, detailing, or converting property, or in an action to recover damages for property taken under false pretenses. 2. In an action for a fine or penalty, or for money received, or property embezzled, or fraudulently misapplied by a public officer or attorney, solicitor, or coun- sel, or officer of a corporation as such, or factor, agent, or broker, or for misconduct or neglect in official or professional employment. 3. In an action to recover property unjustly detained, where it is so concealed that the sheriff cannot find the same. 4. Where the defendant was guilty of fraud in contracting the debt, or in concealing or disposing of the property for the taking, detaining, or disposing of which the action is brought. An affidavit must be made on the part of the plaintiff, stating the cause of action, and one of the above causes. Attachment is allowed on an affidavit that the defendant is indebted to plaintiff, and stating the amount, and that it is due on contract, and, i. That defendant has absconded, or is about to abscond, or is concealed to the injury of his creditors. 2. That defendant has assigned, disposed, or concealed his property, or is about to do so, with intent to defraud creditors. 3. That the 742 ABSTRACT OF THE COLLECTION OF DEBTS. defendant has removed, or is about to remove, his property from the State, with intent to defraud creditors. 4. That the debt was fraudulently con- tracted. 5. That he is a non-resident. 6. Or a foreign corporation. 7. That he has fraudulently conveyed or disposed of his property with intent to defraud creditors. The amount sued for must exceed fifty dollars. Garnishment is allowed on an affidavit on behalf of the creditor, that he believes that any third person (naming him), has property, effects, or cred- its of defendant, or is indebted to him, also on execution, on a similar affi- davit. Judgment is a lien on real estate in the county where rendered from the date of docketing, and in other counties from the time of filing a transcript, and the lien continues for ten years. It bears interest at seven per cent., or as high as ten per cent, if stipulated for in the contract. Stay Laws. In justices' courts, on giving bond with surety within five days after judgment was rendered, stay of execution is allowed as follows: On sums not exceeding ten dollars, exclusive of costs, one month ; between ten and thirty dollars, two months ; between thirty and fifty dollars, three months ; over fifty dollars, four months. Exemptions. A homestead not exceeding forty acres, used for agricul- ture, and a residence, and not included in a town plat, or a city or village, or, instead, one quarter of an acre in a recorded town plat, city, or village. Also, I. Family J ible. 2. Family pictures, and school-books. 3. Private library. 4. Seat or pew in church. 5. Right of burial. 6. Wearing apparel, beds, bedsteads and bedding, kept and used in the family, stoves and appur- tenances put up and used, cooking utensils and household furniture to the value of two hundred dollars, one gun, rifle, or fire-arm to the value of fifty dollars. 7. Two cows, ten swine, one yoke of oxen, and one horse or mule, or in lieu thereof, a span of horses or mules, ten sheep and the wool there- from, necessary food for exempt stock for one year, provided or growing, or both, one wagon, cart, or dray, one sleigh, one plow, one drag, and other farm utensils, including tackle for the teams to the value of fifty dollars. 8. Provisions and fuel for the family for one year. 9. Tools and implements, or stock-in-trade of a mechanic or miner, used and kept, not exceeding two hundred dollars in value, library and implements of a professional man, to the value of two hundred dollars. 10. Money arising from insurance of exempt property destroyed by fire. ri. Inventions, for debts against the inventor. 12. Sewing-machine. 13. Sword, plate, books, or articles presented by Con- gress, or legislature of a State. 14. Printing materials and presses to the value of fifteen hundred dollars. 15. Earnings of a married person neces- sary for family support, for sixty days previous to issuing process. LIENS OF MECHANICS AND MATERIAL MEN. 743 CHAPTER XXXVI. THE LIENS OF MECHANICS AND MATERIAL MEN FOR THEIE "WAGES AND MATERIALS. In nearly all our States there are now some provisions for securing to mechanics, and to persons supplying materials (who are called "material men"), their wages and pay for their mate- rials, by means of lietis, as they are called in law. A lien is a hold upon or a valid claim against property. This means that every mechanic employed upon a house, and, in most of the States, upon a vessel, and in pome upon any property whatever, as a railroad or canal, either in the construction or repair of it, has a lien upon the property on which he has labored or for which he has supplied materials, for the amount of his wages and the price of his materials. This lien or claim he has for a certain time ; and during that time he may either sue for his wages, and make an attachment of the property, or, in some States, file a petition with the proper court ; and in either may have the property sold to pay his wages, unless the owner redeems it. The reason of these precautions is obvious enough. The purpose of the law is to assist and protect the mechanic, or material man, but not to enable him to commit a fraud or do an injury to his neighbors. And it would be an injury to a man to let him buy a house and pay full price for it, and then tell him that the mechanics who built it had a lien (which is much the same in effect as a mortgage) upon the house, without his know- ing anything about it. And it would be an injury to an owner, who had contracted with the master-workman to repair or change his house at great expense, to settle with this master workman in due time, and pay him the full amount of his bill, without any notice to the owner that he was under an obliga- tion to pay again for all the labor spent upon his house, or let the house go on execution. Of all these laws for the recovery of debts, and thp enforce- 744 LTENS OF MECHANICS AND MATERIAL MEN. ment of the liens of mechanics, the provisions now in force are quite recent. Only of late years has imprisonment for debt been greatly mitigated or removed, and the trustee or garnishee process made what it now is, exceedingly convenient and useful. The homestead law and the lien law, though now so widely spread, are a modern invention, or, at least, of modern intro- duction. One effect of this recent origin is, that important practical questions still exist as to their construction, applica- tion, and effect, which only time can solve. I give, annexed to this chapter, an abstract of the Laws of all the States relating to Mechanic Liens. In this chapter nothing more has been attempted than, First, to give a general and accurate view of all those principles of the laws relating to creditor and debtor which are now generally agreed upon, and may be regarded as probably permanent. Secondly, to indicate distinctly to the mechanic what rights he may possess and what securities he may hold, and how he may lose the rights and securities he possesses, and to the owner or buyer what liabilities he may incur, unless the one and the other take the proper course which the law has provided for their safety. The forms to be used under the lien laws are not prescribed by statute. Those given below are in use in some of our principal cities; and the same, in substance, would be suitable anywhere. (263.) A Notice under Mechanic's Lien Law. {To be filed with the Clerk of the County^ To Esquire, Clerk of the City and County of Sir, Please to take Notice, That I, residing at No. Street, in have a claim against amounting to the sura of due to me, and that the claim is made for and on account of {here state the work or materials) and that such work was done in pursuance of {here describe the contract) which building is owned by situated in the ward, of the city of on the side of Street, and is Icnown as No. The following is a diagram of said premises {or, the said premises being described as follows). RELEASE AND DISCHARGE OF A MECHANICS LIEN. 745 And that I have and claim a lien upon said house or building, and the appurtenances and lot on which the same shall stand, pursuant to the pro- visions of an act of the Legislature of the State of to secure the payment of mechanics, laborers, and persons furnishing materials towards the erection, altering, or repairing of buildings. Dated, this day of 18 (Signature^ County of '• ss. City of {The 7iame of the j) arty claiming the &«) being duly, sworn, say:!i, that he is the claimant mentioned in the foregoing notice of lien, that he has read the said notice and knows the contents thereof, and that the same is true to his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true. Sworn to before me, this day of 18 (264.) A Bill of Particulars of Mechanic's Claim. (To be served on owner ^ A Bill of Particulars Of the amount claimed to be due from for and on account of {work or materials) and that such work was done {of materials furnished) in pursuance of {state the contract or order) which building is owned by situated in the ward of the city of on the side of Street, and is known as No. of said street. {Date.) {Sigjiature of Claimant.) To {name of owner.) (265.) A Release and Discharge of a Mechanic's Lien. I do Hereby Certify, That a certain mechanic's lien, filed in the office of the clerk of the county of the day of one thousand eight hundred and at o'clock in the noon, in favor of claimant against the building and lot, situate side of street, and known as No. in said street, whereof is owner, and is contractor, is discharged. {Signature^ ss. On the day of one thousand eight hundred and before me came who is known to me to be the individual described in, and who executed the above certificate, and acknowledged that he executed the same. 746 LIENS OF MECHANICS AND MA TERIAL MEN. (266.) Release and Discharge of a Mechanics' Lien— another Form. Whereas, We, the subscribers, have erected and furnished materials for erecting on lot or piece of ground situate And have agreed to release all liens which we, or any or either of us have, or might have, on the said by reason of materials furnished, or work performed, for erecting the same. Now these presents witness, that we, the subscribers, for and in consideration of the premises, and of the sum of one dollar, to each of us at or before the sealing and delivery hereof by the said well and truly paid, the receipt whereof we do hereby acknowl- edge, have remised, released, and forever quit-claimed, and by these presents do remise, release, and forever quit-claim unto the said and to his heirs and assigns, all and all manner of liens, claims, and demands what- soever, which we, or any or either of us, now have, or might or could have, on or against the said and premises, for work done, or for mate- rials furnished, for erecting and constructing the said building, or otherwise howsoever. So that he, the said and his heirs and assigns, shall and may have, hold, and enjoy, the said and premises, freed and discharged from all liens, claims, and demands whatsoever, which we, or any or either of us now have, or might or could have, on or against the same, if these presents had not been made. In Witness Whereof, We have hereunto set our hands and seals the day of the date written opposite our respective signatures. (Date) {Witnesses at signing) {Signatures of Claimants) ABSTRACT OF THE LAWS OF ALL THE STATES RELATING TO MECHANICS' LIENS. ALABAMA.— Every mechanic or other person who performs any work or labor, or furnishes any materials or fixtures, erection, or improvement on land, or does any repairing on the same by virtue of a contract, has a lien on such building or imprpvement, and upon the land on which it is situated, to the extent of one acre. The original contractor within six months, and any laborer within thirty days, must file with the judge of probate a state- ment of the account and description of the property, and action must be brought to enforce the lien within ninety days from such filing. ARKANSAS.— A mechanic or other person performing any work or labor, or furnishing any material or fixture, erection, or improvement on land, or doing any repairing on the same by virtue of a contract, has a lien on such building or improvement, and upon the land on which it is situated. He must file with the clerk of the circuit court of the county where the land is, within ninety days after ceasing to labor, a just and true account of the claim, and description of the property, and suit must be begun within nine months thereafter. ABSTRACT OF MECHANICS' LIENS. 747 CALIFORNIA.— Every person performing labor upon, or furnishing materials to be used in the construction, repairing, or altering any structure, has a lien on the same for his services. The land, or the owner's interest therein, is also subject to the lien, and every original contractor within sixty days from the time of completing his contract, and every other person within thirty days, must file with the county recorder a claim, stating his demand, the owner of the property, employer, and the property on which the lien is claimed, and suit must be begun within ninety days from the date of filing the claim. COLORADO. — A lien is allowed on personal property to the person making, altering, or repairing the same, and if it is not paid in ninety days after the worii is done, it may be appraised and sold. Any person perform- ing work, or furnishing materials to the amount of twenty-five dollars on any building by virtue of a contract, has a lien on the same, and he must, within forty days, file a statement in the county recorder's office containing a notice that he claims such lien, a description of the property, and an abstract of the indebtedness, and the action to enforce the lien must be brought within six months. CONNECTICTTT. — A lien is allowed on every building, in the construc- tion or repairing of which any person has a claim for labor or materials ex- ceeding twenty-five dollars. The lien is dissolved unless within sixty days after ceasing to labor or furnish materials, such person files with the clerk of the town where the building is, a certified description of the premises, the amount of the lien, and an account of the claim, the same being subscribed and sworn to. DELAWARE. — A lien is allowed to any person furnishing materials or labor or both, to the amount of twenty-five dollars, on any building in pursu- ance of a contract. The original contractor must file a statement not sooner than sixty or later than ninety days after completion of the building, and other persons within sixty days. The statement must contain the names of the party claimant, and owner, and contractor, the amount claimed, anci a bill of particulars of the work done, the time when the work was done, the local- ity of the building, and a description thereof. FLORIDA. — Master builders and mechanics have a lien on all build- ings on which they have done work, but to be enforced it must be, firs t, that the contract is reduced to writing and signed by the parties making the same ; and, second, that the amount is liquidated and a net balance struck in favor of the person doing the work or furnishing materials. All con- tracts entered into, liquidated, or net balance struck, must be recorded in the county where they are to be executed, within thirty days. There must be filed in the office of the clerk of the circuit court for the county, within six months after doing the work, or furnishing materials, a just and true account of the demand, and a description of the property. All liens are dissolved unless suit is brought within twelve months after the work is finished. 748 LIENS OF MECHANICS AND MA TERIAL MEN. GEOKGIA. — All mechanics and persons doing any work on a building, or furnishing any materials or machinery, have a lien on the same ; but there must be a substantial compliance with the contract, and the claim must be recorded within thirty days after the work is done, in the office of the clerk of the superior court for the county where the property is situated, contain- ing a description of the property and of the demand. Action to enforce a lien must be begun within twelve months after the claim is due. Mechanics and laborers also have a lien on personal property for work done in manu- facturing or repairing the same, which is enforced by retaining the property, but is lost on delivering it up. ILLIN'OIS. — Any person who by contract, expressed or implied, fur- nishes labor or materials as architect, builder, or workman on any building, has a lien on the same. But there is no lien if, in the contract, the time for the completion is fixed more than three years from commencement of the work, or if the time of payment is more than one year from the time stipu- lated for the completion of the work. Suit to enforce the lien must be begun within six months after completion of the work. INDIANA. — Mechanics and all other persons performing labor or fur- nishing materials or machinery, on any building whatsoever, have a Hen on the same. It must be in pursuance of a contract; and to secure the lien, a notice of the claim must be filed in the record office of the county where the building is, within sixty days after completion of the building or repairs. Suit may be begun to enforce the same within one year. A me- chanic or tradesman has a lien on any personal property for work done, and may sell the same if completed and not paid for within six months after the claim becomes due. IOWA. — Mechanics and other persons who do any work, or furnish materials by virtue of a contract on any building or improvement, have a lien on the buildings and the land on which they are. To avail them- selves of such lien, there must be filed i.'. the office of the clerk of the court for the county where the building is, within ninety days after the work is done or the materials furnished, a true account of the work done, and a description of the property, and suit must be begun within two years. KANSAS. — Mechanics, artisans, and tradesmen have a lien on all articles constructed and repaired by them, and if the same be completed and not taken away, and the fair charges on the same not paid, the property may be sold at any time after three months. Any mechanic or other person who shall furnish, under contract, any labor or materials for erecting, altering, or repairing any building or appurtenance, or any machinery or fixtures in the same, or plant or grow any trees, \-ines, hedges, etc., or shall build a stone or other fence, shall have a lien on the buildings, land, and appurtenances. Sub-contractors must file a statement of their account with the clerk of the District Court for the county within sixty days after the completion of the buildings, etc., or the furnishing the labor or materials. Other workmen must file such an account within four months, and all actions ABSTRACT OF MECHANICS' LIENS. 749 to enforce liens must be begun within one year after completion of the ■work. KENTXTCKY. — Any person who performs any labor or furnishes any material, or fixtures, or machinery in the erection, alteration, or repair of any structure, or who makes any excavation or improvement in any manner on real estate, by a contract with, or written consent of the owner, has a lien on the building and land ; and within sixty days after ceasing to labor or furnish materials, he must file in the office of the clerk of the court for the county where the building is, a statement of the amount due, a descrip- tion of the property, and the name of the owner, and also whether the work was done or the materials furnished by contract with the owner or with a contractor or sub-contractor. Actions to enforce the lien must be begun within six months after filing such account. LOTJISIANA. — Liens in this State are known as privileges. Architects, contractors, and all persons who are employed in constructing or repairing any building, and all persons who have supplied the owner, agent, or sub- contractor with materials to be used on any building, have a lien and privilege on the buildings and lot of land not exceeding one acre. The privilege must be recorded with the i;egister of privileges in the parish where the property is, the act containing the bargain made, or a statement of the account. MAINE. — Any person performing or furnishing labor or materials in erecting, altering, or repairing any house, building, or appurtenance by virtue of a contract with, or by consent of the owner, has a lien on the building and land on which it stands. If the Libor or materials are not furnished by contract with the owner, he may prevent the lien for such labor or materials not yet furnished, from attaching, by giving written notice that he will not be responsible for the same. The lien is dissolved, unless, within thirty days after ceasing to labor, the .claimant shall file in the office of the town clerk where the building is, a true statement of the account, a description of the property and the owner's name, and suit must be begun within ninety days after the last labor was performed or materials furnished. MARYLAND.— lEvery building, machine, wharf, or bridge erected, and' every building, machine, wharf, or bridge repaired, or improved to the extent of one-fourth of its value, is subject to a lien for the payment of all debts contracted, or work done or materials furnished for or about the same. If the contract be made with anyone but the owner, the claimant must within sixty days after furnishing the work or materials, give notice in writino- to the owner, and must within six months file a statement of his demand in the office of the clerk of the Circuit Court for the county where the property is. The lien continues for five years. The counties of Kent, Charles, Calvert, and St. Mary's are not included in the number of those to which the hen laws apply. MASSACHUSETTS.— Any person to whom a debt is due for labor per- formed or furnished, or for materials furnished and actually used in the 48 ;5o LIENS OF M'ECHANICS AND MA TERIAL MEN. erection, alteration, or repair of any building or structure upon real estate, by virtue of an agreement with, or by consent of the owner thereof, or any person having authority from the owner, has a lien on the property and land for his charges'. Unless the labor or materials were performed or furnished by contract with the owner, he may prevent any lien from attach- ing, for work or materials not already performed or furnished, by giving written notice to the person performing the labor or furnishing the materials that he will not be responsible for the debt. Liens are dissolved, unless the claimant, within thirty days after ceasing to work, files in the office of the clerk of the city or town where the property is situated, a true statement of the account, together with a description of the property and the owner's name ; and suit to enforce the lien must be begun within ninety days after ceasing to work or furnishing materials. MICHIGAN. — Every person who, by contract, furnishes labor or ma- terials for the construction of a building, or wharf, or of any engine, machinery, or appurtenance on land, has a lien on such building, wharf, or machinery and appurtenances ; but he must file with the register of deeds for the county where the lands lie, a certificate containing a copy of the contract, if in writing, or else a statement of such contract, a description of the property and the amount due ; and suit to enforce the lien must be begun within six months after ceasing to labor. MINNESOTA. — Whoever performs labor, or furnishes materials or machinery for erecting, altering, or repairing any building or appurtenance, or in constructing, altering, or repairing any boat or vessel by virtue of a contract or agreement, has a lien on the same, and on the land on which the buildings are, not exceeding forty acres, or if in a city or town, the lot on which the building is, not exceeding one acre. The claimant must make an account in writing, of the work done or materials furnished, within one year after furnishing such work or materials, and file the same in the register's office for the county where the work was done, and by virtue of the same the lien is extended one year more. Whoever makes, alters, or repairs any personal property has a lien on the same, and may retain possession of the property until his just and reasonable charges are paid, and if not paid within three months, the property may be sold. MISSISSIPPI.— Every building, bridge, or addition to any fixed machinery or gearing, or fixtures for ^manufacturing purposes, every boat or water-craft, and every paling or enclosure is liable for the payment of any debt contracted and owing for labor performed or materials furnished about the erection, alteration, or repair of the same, and the debt is a lien on the building or structure and the land on which it is. The lien takes effect from the time of filing the contract in the office of the chancery clerk for the county where the land is, or from the commencement of suit to enforce.,it and such suit must be begun within six months after the money claimed is due and payable. MISSOURI — Every person performing any work or furnishing any ABSTRACT OF MECHANICS' LIENS. 751 materials, fixtures, engines, boilers, or machinery for any building, erection, or improvement on land, or for repairing the same, has a lien for his services on the building and land belonging to the owner on which the building is to the extent of one acre. Every original contractor within six months. Every journeyman and day laborer within thirty days, and every other person within four months, must file with the clerk of the circuit court for the county where the property is, a true account of his demand, a description of the property and the owner's name, and action to enforce the lien must be begun within ninety days after filing such account. NEBBASKA. — All persons performing any labor or furnishing any materials or machinery, for erecting, repairing, or removing any building or appurtenance by virtue of a contract with the owner or his agent, have a lien to secure payment for the same, on the building or appurtenance and lot on which it stands. The claimant must make an account in writing, and within four months from the time of doing the work or furnishing the materials, must file the same in the office of the clerk of the county where the work was donp, and the lien continues for two years. NEVADA. — Every person performing labor upon, or furnishing ma- terials of the value of twenty-five dollars to be used in constructing, altering, or repairing any building, railroad, tramway, toll-road, canal, water ditch, fence, or any other structure, or who performs labor on any mining claim, has a lien on the same for his work, labor, or materials, if done at the instance of the owner or his agent. The land occupied by tlie building, structure, or improvement is subject to the lien. Original contractors within sixty days, and all other persons within thirty days, after the completion of the building, improvement or structure, or alteration of the same, must file in the record office for the county where the land is, a statement of the demand, the owner's name and description of the property. Suit must be begun within six months after filing the claim. NEW HAMPSHIRE.— Any person who, by himself or others, performs labor or furnishes materials to the value of fifteen dollars or more, for erect- ing, altering, or repairing a house, or other building or appurtenance, by virtue of a contract with the agent, contractor, or sub-contractor, may have a lien on the same, on giving notice to the owner or person having charge, that he intends to claim such lien, the same to be secured by attachment, and to continue ninety days. Lumberers and railroad contractors have a like lien, to continue sixty days. NEW JERSEY.— Every building constructed, erected, or repaired, and machinery or fixtures put into any building, are liable for the payment of all debts contracted and owing to any person for labor performed or materials furnished for the erection or repair of such building, machinery, or fixtures. But if the work was done by contract, the building is liable to the contractor alone, provided the contract, or a copy, is filed in the county clerk's office, before any work was done or materials furnished. The claimant must, within one year after performing the labor or furnishing the materials, file in the office 752 LIENS OF MECHANICS AND MA TERIAL MEN. of the county clerk a statement containing a description of the building, the owner's name, and the name of the person contracting the debt, the time of beginning the work, and a bill of particulars, and a suit must be brought within the year. NEW YOK.E.^Contractors, laborers, and others, who furnish labor or materials in erecting or improving any building, by virtue of a contract with the owner or his agent, have a lien on the premises to secure the payment of their claim. A specification of the claim, a copy of the contract, if there is one, must be filed from two to three months after ceasingto worker furnish materials, and suit begun within a year after such time. The law differs slightly in the various counties. NORTH CAROLINA.— Every building built, rebuilt, repaired, or im- proved, together with the lot on which the building is, and every lot, farm, or vessel, or any kind of property not enumerated, is subject to a lien for the payment of all debts contracted for work or materials furnished about the same. Claims under two hundred dollars may be filed in the office of the nearest magistrate. Claims over two hundred dollars are to be filed in the office of the clerk of the Superior Court for the county where the work was performed. Notice must be filed within thirty days after completing the work or furnishing the materials. Mechanics and artisans have a lien on personal property made or repaired by them, and they may retain possession of the property. If their charges are not paid within thirty days, if the value of the article does not exceed fifty dollars, or ninety days if the value is over fifty dollars, they may proceed to sell the property. OHIO. — Any person performing any labor, or furnishing any materials or machinery for the construction, alteration, or repair of any vessel or water- craft, any building or appurtenance, bridge, or other structure, by virtue of a contract, has a lien on such structure and the owner's interest in the land on which it stands. He must file an account of his work or materials per- formed or furnished, and a copy of the contract, if it was in writing, in the recorder's oflice for the county within four months after doing the work, and suit must be begun within one year. OREGON.— Any person who, by virtue of a contract with the owner or his agent, performs any labor, or furnishes any materials, engines, or machinery for the construction or repair of any building, has a lien on the building and lot on which it stands for his pay, provided the amount exceeds twenty dollars. He must file in the office of the county clerk, within three months after the completion of the building or repairs, a notice of his inten- tion to claim alien, and specifying the amount due, and the property. Suit to enforce the lien must be brought within one year. Mechanics and artisans have a Hen on personal property made or repaired by them, and if their charges are not paid in three months, they may sell the property. PENNSYLVANIA. — All buildings, wharves, fixtures, engines, machin- ery, etc., erected, repaired, altered, or added to, are subject to a lien for the payment of all debts contracted for work done 5r materials furnished about ABSTRACT OF MECHANICS' LIENS. 753 the same. The lien extends to the land on which the structure is. The claimant must file in the office of the Prothonotary of the Court of Common Pleas for the county where the property is, a statement containing the names of the claimant, owner, and contractor, the amount and nature of the claim, and a description of the property, within six months, and suit may be brought at any time within five years. BHODE ISIiAND.— Every building, canal, turnpike, railroad, or other improvement erected or repaired by contract with, or consent of, the owner, is subject to a lien for all work done or materials furnished in the construc- tion or repair of the same. If the work was done under a written contract, suit must be begun within four months from completion of the work ; if not, within six months from the beginning of the same. The commencement of legal process is by lodging the account or demand, specifying the buildings and owner, in the office of the town clerk for the town where the prop- erty is. SOUTH CAROLINA.— Any person to whom a debt is due for labor performed or materials furnished and actually used in the erection, altera- tion, or repair of any building or structure on real estate, by virtue of a contract with, or consent of, the owner or his agent, has a lien on the build- ings and land for his pay. ' The lien for materials furnished does not attach unless, before furnishing the same, the claimant gives notice to the owner, who is not the purchaser, that he intends to claim a lien. If the owner is not the contracting party, he may prevent any lien from attaching, by giving written notice that he will not be responsible for the debts of the contractor. The claimant, within thirty days after ceasing to labor, must file in the office of the clerk of the Court of Common Pleas, a statement of his account, a description of the property, and the owner's name, and suit must be begun within ninety days after ceasing to labor. TENNESSEE.— There is a lien on any lot of land upon which a house has been built or repaired, or fixtures or machinery furnished or erected, or improvement made by special contract with the owner or his agent in favor of all persons doing any work or furnishing any materials on or about the same. The lien includes the buildings on the land, and continues for one year after completion of the work. Sub-contractors and workmen must, at the time of beginning to work, give notice to the owner of their intention to claim a lien. TEXAS.— Master-builders, and mechanics of all kinds, contracting in v/riting to erect buildings of every description, have a lien in the nature of a mortgage on the buildings and land. Every contract so entered into is to be recorded in the office of the clerk of the county where the building is, within thirty days. All persons doing any work or furnishing any materials on any such building, may,-if their work or materials are not paid for, deliver to the owner a copy of their account, and he is then authorized to retain enough to pay them out of the amount due the contractor. VERMONT.- Any person performing any labor or furnishing any mate- 754 LIENS OF MECHANICS AND MATERIAL MEN. rials for building, repairing, fitting, or furnishing any ship, vessel, or steam- boat, has a lien on the same for eight months after completion of the same. His claim must be due, and he must demand payment of the same. When any contract is made, in writing or otherwise, for the erection, repair, or alteration of any building, or for furnishing any materials about the same, the person proceeding under the contract has a lien on the house and land, which continues for three months after payment of the claim is due ; but the claimant must file in the clerk's ofiice of the town where the building is, a memorandum showing his claim. VIKGINIA. — If any person having any interest in land shall make a written contract with any person to pay him money for erecting or repairing any building on such land, there shall be a lien on the whole property for the money, but suit to enforce the same must be begun within six months. All persons furnishing any work or materials about the same, have the lien. A general contractor must, within thirty days after completion of the work, file in the clerk's office for the county where the property is, a true account of his work, and a statement of his intention to claim a lien. Sub-contract- ors or workmen must give notice to the owner of the labor or materials to be performed or furnished, and within ten days after completion of the work furnish a true account of the amount unpaid. WEST VIRGINIA. — Every person who shall perform any work or labor, or furnisli any materials in the construction, alteration, or repair of any house, building, or appurtenance, by virtue of a contract with the owner or his agent, has a lien on the buildings and land for his pay. He must, within thirty days after the ceasing to labor or furnish materials, file with the clerk of the court for the county where the property is, a true account of the amount due, a description of the property, and the owner's name. Sub-con- tractors must give notice to the owners that the contractors are indebted to them, and the owners may reserve sufficient to pay them. Suit to enforce the lien must be begun within six months. "WISCONSIN. — Every building constructed, erected, repaired, or re- moved, machinery erected so as to become a fixture, and the land on which the same is, not exceeding forty acres, or, if in a town or village, the lot on which such building stands, is subject to the payment of debts contracted for work or materials furnished by any person. If such work was done under a contract with the owner or agent, no person who has done work for the contractor can claim the lien, unless within thirty days after doing such work he give written notice to the owner or his agent that he was employed by the contractor, and that he intends to claim a lien. Suit to enforce the same must be begun within one year. Personal property may be held for six months, and then sold, if charges on the same are not paid. WILLS. 7^ J CHAPTER XXXVII. JF THE DISPOSAL OF PROPERTY BY WILL. SECTION L OF AVILLS. Few persons are aware how very difficult it is to make an unobjectionable will. There is nothing one can do, in reference to which it is more certain that he needs legal advice, and that of a trustworthy kind. Eminent lawyers, not practised in this peculiar branch of the law, have often failed in making their own wills, both in England and in this country. And there are seldom blank forms for wills printed and sold, as there are for deeds and leases. Nevertheless, it may happen that one is called upon to make his own will, or a will for his neighbor, under circumstances which do not admit of delay ; or he may have some interest in the will of a deceased person, and questions may have arisen, which some knowledge of legal principles will answer. We shall try to state here what may be of use in such cases ; and shall append a form for a will. Any person of sound mind and proper age may make a will. A married woman cannot, unless in relation to trust property, whereof the trust or marriage settlement reserves to her this power ; or the statute law of her State gives it, as is the case now in many States. One must be of full age in order to devise real estate. But in most of our States minors may bequeath personal property ; and a frequent limitation of the age for such bequest is eighteen years for males, and sixteen years for females. The testator should say distinctly, in the beginning of the instrument, that it is his last will. If he has made other wills, it is usual and well to say, " hereby revoking all former wills ; " but the law gives effect to a last will always. It should close with the words of attestation : " In witness whereof, I have hereunto signed and sealed this instrument, and published and declared the same as and for my last will, at 756 THE DISPOSAL OF PROPERTY BY WILL. on this day of ." Then should follow the signature and seal ; for this latter, although not always required by law, is usually and properly affixed. The witnessing part is very material. The requirements in the different States are not precisely alike ; but they are all in- tended to secure such attestation as will leave the fact of the execution of the will, and its publication as such, beyond doubt. In a very few States, it is enough if the signature be proved by credible witnesses, although there be no witnesses who sub- scribed their names to the will. In many, two subscribing wit- nesses are enough. It is so in the provinces of the Dominion of Canada, generally. But in some States it is necessary, and in all I recommend, that the testator should ask three disinter- ested persons to witness this will ; and should then, in their presence, sign and seal it, and declare it to be his will ; and they should then, each in the presence of the testator and of the other witnesses, sign his name as witness. See the Abstracts at the close of this chapter. Each should see the execution which he says he witnesses ; and the signing by the witnesses should all be seen by the testa- tor ; but the law is satisfied if the thing is done near the testa- tor, and where he can see if he chooses to look. If the testator is too feeble to write his name, let him make his mark ; and for this purpose any mark is enough, although a cross is commonly made. So, if a witness cannot write his name, he may make his mark ; but this should be avoided if possible. Over the witnesses' names should be written their attesta- tion ; and any alteration in the will should be noticed. If the attestation be in the following words, it will be safe in any part of this country : "At on this day of the above- named signed and sealed this instrument, and pub- lished and declared the same as and for his last will ; and we, in his presence, and at his request, and in the presence of each other, have hereunto subscribed our names as witnesses." Witnesses should be selected with care, where that is possi- ble ; for if any question arises about the testator's sanity, or anything of the kind, their evidence is first to be taken, and is WILLS. 7S7 very important. But any persons competent to do ordinary acts of business may be witnesses. Nor do the usual qualifica- tions for business apply. Thus, married women and minors may be witnesses of wills. But no person should be called upon to witness a will who is a legatee, or an executor, or otherwise interested in the will. If such a person were a witness, it might not avoid the will ; but a legatee would lose or be obliged to renounce his legacy ; and, generally, it might lead to unintended results. What was said in relation to deeds, of witnesses remem- bering, etc., or proof of handwriting in case of their death or absence, is true also of wills. As to the body of the will, the testator must express his wishes as clearly and accurately as possible ; and, unless he has good legal advice, he should make the disposition of his property as simple as possible. The word " bequeath i' applies, properly, to personal estate only ; the word "devise," to real estate only. It is safe enough to begin, " I give, bequeath, and devise my estate and property, as follows : that is to say," — and then go on and tell what shall be done with this and that piece of property, or sum of money. Words of inheritance should be added to any devise of land (if not intended for the life of the devisee only), as was said in reference to deeds ; although they are not required in wills so peremptorily as in deeds. The words of inheritance are, — To A B "and his heirs." If it is intended, as usually is the case, that the will should apply to all the real estate possessed by the testator at the time of his death, although purchased after the will is made, there should be a clause expressing this intention. If children are not provided for in a will, the law sometimes presumes they were forgotten ; and it gives to any such child the same share as if there were no will, unless the omission is explained in the will, or by evidence, and shown to have been intentional. If the child were provided for in the lifetime of the father, the law, generally, would not presume that the child was forgotten ; it is best, however, to guard against any question of the kind, by saying that the omission to give to the child any- thing is intentional. 75 8 THE DISPOSAL OF PROPERTY BY WILL. A testator should always name his executors ; but the will is perfectly good without any executor being named, for the court of probate will appoint an "administrator with the will annexed." If the testator desires that his executor or trustee should not give bonds, he should say so distinctly in his will. Nuncupative wills are wills made by word of mouth. Olographic wills are wills written entirely by the testator's hand. In the provinces of the Dominion of Canada, generally the laws as to the construction, effect, and execution of a will are the same as in the United States : the principal difference being that, in the Province of Quebec, the French rule prevails, and an olograph will is valid without witnesses. SECTION II. A CODICIL is a little additional will. That is, it is a testa- mentary disposition, not revoking the former will, but varying it in some way, or making changes in it. There can be but one will, and that the last ; but there may be any number of codi- cils, all valid. The changes made by a codicil in a will, or in former codicils, should be very distinctly stated ; and some words like these should be used : " I hereby expressly confirm my former will, dated excepting so far as the disposi- tion of my property is changed by this codicil." And the cod- icil should be called, at the beginning and end, a codicil, and executed and witnessed in the same manner as a will. If a codicil gives one a legacy, who has already one by the will, the codicil should state whether it gives the second legacy instead of the first, or in addition to it. And if advances are made to a child during life, there should be an indorsement on the will (but a statement in the will or codicil would be better), stating whether these advances are to be charged to him, and in what way, whether with interest, etc. REVOCATION OF WILLS. 759 SECTION III. REVOCATION OF WILLS. The law concerning the revocation of a will is quite nice and technical. A codicil, we have seen, does not revoke, and a new will does. So might tearing off the name ; but then the question might come, who tore it off .' It is better to leave nei- ther this nor any other question : and therefore to destroy a will which it is intended to revoke. If the will is out of the testator's reach and power, and so cannot be destroyed, it would be best to make a new will, revoking the old one ; which any tes- tator can always do. A will is revoked by the operation of law, if the testator afterwards marry and have a child. If the testator, after this, intends that his will shall take effect, he should expressly con- firm it ; and the correct way to do this would be by making a new will. If he leaves anything to his wife, and intends that she should have it instead of dower, or of the additional rights which recent statutes in some of the States have given her, he should say so. And then she will not have both, but may choose between the provision of the law and that of the will, taking whichever she prefers, and leaving the other. For the rights of the wife or widow in the several States, I refer back to the abstract of the statutes of the several States, in Chapter V. Annexed to this chapter is an abstract of the laws of all the States relating to wills. It is impossible to do niore than to give such forms and rules as will be applicable to all wills, and enable any person to draw a simple will with safety. No one can express accurately provisions for trust estates, remainders, executory devices, etc., without knowing the law on these subjects, — and this is an extensive and difficult department of the law. All that is necessary, and may be relied upon as generally sufificient, is as follows : 760 THE DISPOSAL OF PROPERTY BY WILL. (207.) Form of a 'Will. I, of {place and occ2tpaiion), make this my last will. I give, devise, bequeath my estate and property, real and personal, as follows, that is to say : Then follow all the provisions and disposition of property which the testator intends, stated fully, plainly, and as accu- rately as possible, paying due regard to the rules and prin- ciples laid down in the chapter of this book on this subject. And if these provisions are carefully presented in distinct and intelligible language, the courts will generally supply whatever of technicality is wanting. Then follows, first, the appoint- ment of an executor, and then the execution, and finally the declaration of the witnesses, thus : I appoint [itajne, residence, and occnpaizo?t) executor (or executors if more than one be desired) of this my will. In witness whereof, I have signed and sealed and published and declared this instrument as my will, at {place), on {date). (Signature.) {Seal.) The said at said {place), on said {day), signed and sealed this instrument, and published and declared the same as and for his last will. And we, at his request, and in his presence, and in the presence of each other, have hereunto written our names as subscribing witnesses. {Here follow the names of three witnesses) A codicil should be written thus : I, of {place and occupation), do make this my codicil, hereby confirming my last will made on the {diite of the will), and all my former codicils {if there be any), so far as this codicil is consistent therewith ; and do hereby — Then follows whatever disposition the testator chooses to make, stating and describing it as he would if it were a will, and executing it, and having it attested in the same manner as if it were a will, excepting that, instead of calling it a will, wherever that word occurs, he says, "codicil" instead of "will." If he gives in his will or codicil a legacy to a woman, it is generally best to add "this legacy (or bequest) to be for her sole and separate use, independent of her husband, at all times. FORMS OF WILLS. -gl (368.) _ Copy of a fuller Form ol a 'Will. Be it Remembered, That' I, of the city of in the State of Esquire, do make this my last will and testament, in- manner following. That is to say, — I order and direct that all my just debts shall be paid with convenient speed. • I give unto Mr. of said city, merchant, the amount of moneys due and owing from him to me, according to the tenor and effect of four promissory notes signed by him, viz : one dated October i6, 1S19, for ninety- six hundred and eighty dollars ; one dated August 9, 1822, for five thousand dollars ; another dated August 9, 1822, for forty-five hundred and fifty-eight ■^uV dollars ; and another dated August 15, 1822, for fifty-six hundred dollars : and I order said four notes to be cancelled. To the wife of said I give an annuity of six hundred dollars, to be paid her in two equal and half-yearly payments of three hundred dollars each. It is my will, and I order and direct that a trust fund of ten thousand dollars shall be raised out of my estate and invested at interest, the income and produce of which trust fund I give unto of single woman, to be paid to her half-yearly, during her natural life. And at the decease of the said the principal sum or trust fund shall be paid to and among such person and persons in such shares and portions as she, the said by any writing by her signed in the presence of two or more credible witnesses, shall give, direct, and appoint. And in default of such appointment, then said trust fuiid, or principal sum shall go, as the residue of my estate, to the residuary legatee hereinafter named. I also direct that another trust fund of ten thousand dollars shall be raised out of my estate and invested at interest. And I give the interest and produce of this trust fund, when and as it accrues, unto the wife of . It is my will that the income of this fund, or principal sum shall, during the natural life of said either be paid into her proper hand, or upon her order or receipt, signed by her alone, notwithstand- ing her coverture. And I declare that neither the principal nor income of this fund shall be subject to the control, debts, or engagements of the present or any future husband of said the same being intended for her sole and separate use. At the decease of said I give said principal sum or trust fund to the issue of said and in default thereof to such other person or persons as she, by a last will, or any writing in the nature of a last will, shall give, direct, or appoint the same ; and in default of such appointment, it is my will that said trust fund or principal sum shall be disposed of and pass as part of the residue of my estate. I give to an annuity of three hundred dollars, to be paid by two equal sums to said hilf-yearly, during her natural life. 762 THE DISPOSAL OF PROPERTY BY WILL. To of in the County of widow, I give an annuity of one hundred dollars, to be paid her, during life, in quarter- yearly payments. * I also give unto of in the County of widow, an annuity of two hundred dollars, to be paid in quarter-yearly pay- ments during her life. I order my executor, hereinafter named, to pay of either in money, orstich articles as his comfortable maintenance may require, fifty dollars annually during his life, at such times as said executor shall think proper. To wife of of I give an annuity of one hundred dollars, to be paid during her life quarterly. To wife of of I give three hundred dollars, and direct three notes, held by me, signed by her husband, for one hundred dollars each, to be cancelled. To wife of of there shall be paid in money, or delivered in articles necessary for her support, at the discretion of the executor of this my will, one hundred and fifty dollars annually, dur- ing her life, at such time and in such portions as he shall choose. I give to son of one thousand dollars, and order that he shall be charged with such amount of moneys as he shall be my debtor for, upon promissory notes, at my decease. I devise the wood-lot in which I bought of one to wife of above named, to hold to her for life, the remainder I give to the child or children of said who shall sur- vive her, his, her, or their heirs for ever. If shall be a member of my family at the time of my decease, she shall and may continue to reside in my dwelling-house and participate in the use of the stores and furniture, in common with others of my family, for the terra of six months thereafter. It is my will that a debt of three hundred and thirty-two dollars, due me from of shall be cancelled. To each of those of the following named persons wlio shall be in my service at the time of my decease, I give one hundred dollars, viz : My will is that all annuities hereinbefore given shall take date from the day of the probate of this will ; and all legacies, not annuities, shall be paid within eight months from the same period. It is my will that all the capital or principal sums which shall be requisite to yield the several annuities above mentioned may, by my executor, be paid to to be held and managed by said corporation as trustees under this will : or, if the said executor and the parties beneficially interested therein shall so elect, said capital or principal sums, or any of them, may be placed in the hands of such trustee or trustees as shall, upon application to the Supreme Court of sitting in chancery, be appointed to receive the same, and perform this, my will, in that behalf. FOIiMS OF WILLS. 763 I hereby authorize and empower whoever shall assume the execution of this will, to make sale of, and convey any parcel or parcels of real estate, of which I may die seized, for the purpose of raising any and all such sums of money as shall be required for the trust funds, annuities, and legacies hereinbefore directed to be created, given, and bequeathed. All such sales shall be made by public vendue, after notice thereof shall have been given in two or more newspapers printed in the city of for the term of fourteen days at least prior to such sales being made. All the residue of my estate, real, personal, and mixed, wheresoever it may be found, and of whatsoever it may consist, I give and devise unto to hold to him and his heirs forever. I hereby revoke all wills by me heretofore made, and constitute the said executor of this my last will. In Witness Whereof, I, the above-named testator, have hereunto set my hand and seal, this twenty-sixth day of in the year of our Lord eighteen hundred and [L.S.] Then and there signed, sealed, and published by the testator, as and for his last will, in the presence of us, who, at his request, in his presence, and in presence of each other, have hereto set our names as wit- nesses. (269.) Another Form of a "Will. Be it Remembered, That I of in the county of and State of Esquire, hereby revoking all for- mer wills by me made, do make this my last will and testament, in manner following. That is to say : I direct that my just debts be paid with all convenient speed. To my wife I give and bequeath my library, my horses and carriages, my family stores, all my household furniture wherever found, ex- cepting my silver plate, all my pictures, and also the sum of two thousand dollars, which shall be paid to my said wife within sixty days from the pro- bate of this will. It is my will that the debt due to me from and the interest due and to become due thereof, be suffered to remain unpaid until her marriage or death (whichever event shall first happen), provided she shall, from time to time so acknowledge said debt, that the same shall not be af- fected by the lapse of time or the " Statutes of Limitation ; " and provided, also, that she shall consent that the interest accruing on said debt be com- puted by annual rests. All the rest, residue, and remainder of my estate, real, personal, and mixed, I give, devise, and bequeath unto and all of the city of their successors and assigns, and the survivor of them, his heirs and assigns, forever ; but in trust, nevertheless, for the performance of this my will concerning the same. That is to say : 1st. To deliver and transfer to my daughter when she shall ;64 THE DISPOSAL OF PROPERTY BY WILL. attain the age of twenty-one years, my tea-set of chased silver, gilt, and my set of gilt teaspoons ; and in case my said daughter shall die during her minority, then said tea-set and spoons shall be given to my son when he attains majority ; but in case of his death before that period, the said tea-set and spoons shall, at the decease of the survivor of them, the said and be given to the eldest of my other children who shall then be living, and shall attain the age of twenty-one years. But it is my will that my said wife shall be allowed to use said tea-set and spoons until such event shall happen, if she shall so long remain my widow. 2d. To permit my said wife to use all my other silver-plate during her widowhood, and on her death or marriage, whichever shall first happen, to divide the same among my children who shall then be living. 3d. To pay over the interest and income which, prior to the fifth day of May that will be in the year eighteen hundred and fifty-six, shall be de- clared on the seventeen shares in the Bank, which now stand in the name of my former wife, to of to be by him appropriated to the support of and sisters of my former wife in such shares and proportions as he may think expe- dient. And in case of the decease of said then such appro- priation shall be made by the trustees acting for the time being under this will ; provided, however, that if said trustees shall think it expedient to apply said interest and income towards the support and maintenance of my said daughter they shall appropriate the same to that object in preference to the purposes before mentioned. 4th. To transfer and convey said shares on said fifth day of May that will be in the year eighteen hundred and fifty-six, to my said daughter or to her issue m case of her decease. If neither my said daughter nor her issue shall then be living, then said shares shall go to, and be divided among the heirs of my said former wife, in such shares and proportions -as said trustees shall, with the concurrence of said (if living), think expe- dient and proper ; or the same may be transferred to trustees for the ben- efit of said heirs. 5th. To pay to my said wife during such time as she shall remain my widow, the whole interest and produce of the remainder of the trust premises when and as the same accrues and shall be received; and it is my will that my said wife shall apply such portion of said interest and produce as shall be just and proper to the education and the support of my children ; and if said interest and income shall not be adequate for the com- fortable maintenance of my said wife, and the education and the support of my children as aforesaid, I order and direct the trustees or trustee who shall for the time being be acting under this will, to appropriate such portion of the principal of said remainder of the trust premises to the purposes afore- said as shall be requisite and necessary^ If my wife desires to occupy either of the dwelling-houses of which I may die the owner, I direct said trustees or trustee to permit her to do so. FORMS OF WILLS. -gs 6th. To each of my sons attaining majority in my wife's lifetime, and requesting a sum of money to enable him to commence business, an advanc- ment not exceeding the sum of six tliousand dollars shall be made ; and an advance not exceeding the sum of four thousand dollars shall also be made to each of ray daughters respectively, on the day of her marriage, having the consent of their mother thereto, which advancements shall be charged to each child receiving the same, and be accounted for in the final distribution of my estate as parts of their shares respectively. At the death or marriage of my said wife (whichever event shall first happen), the whole principal sum OLj™stJund, excepting said seventeen shares in the BankjTsliall beconveyeST distributed, and paid over to and among my children, or the issue of a deceased child, who shall take by representation its parent's share j/ provided, however, that the shares to which my daughters shall be respectively entitled shall be so conveyed and passed to a trustee or trustees, to be nominated by my said daughters re- spectively, and appointed by the judge of probate having jurisdiction over this will, as that the income and produce of such shares or share shall be secured to the sole and separate use of my daughters or daughter during their respective lives ; and so also that the capital or principal f imd shall, at the decease of my said daughters respectively, go to their respective issue ; and in default of such issue, to such person or persons, for such estates and ifiterest therein, and in such way and manner as by a last will, or any instru- ment in the nature of a last will, my said daughters shall respectively give and appoint the same ; and in default of such appointment, the same shall go to and be divided between my iSsue ; and- in default: of issue, to his heirs and assigns forever. Tlie share of either daughter in a deceased sister's fund to be added to the fund held for the survivors or survivor. In case neither of my children nor their issue shall be living at the marriage or the death of my said wife as aforesaid, then said principal or trust fund (ex- cepting said seventeen shares as aforesaid) shall go to his heirs and assigns forever. My lot at shall be and remain a family burial-place for all my lineal descendants and" those persons with whom they shall intermarryjr and it is my will that no disposition be ever made of said lot which is incoa- sistent with this provision ; which shall apply also to my tomb, No. in the burying-place of ^ I give and confer to and upon the trustees or trustee acting under this will, full power and authority, by public sale or private contract, in such way and manner, and at such price or prices, as he or they shall deem expedient, to mike sale, of and convey any and all the real estate of which the trust prem- ises are or shall be composed ; and to do all needful acts requisite to convey a title thereto to a purchascror purchasers, and to invest the proceeds arising from such sale or sales in other real estate or in personal property, with like power of disposition over any and all the real estate in which the trust premt ises, or any part thereof, shall be invested. And it is ray will that said 4U •jQS THE DISPOSAL OF PROPERTY BY WILL. trustees shall not be answerable for any losses or damage to the trust prem- ises, unless the same shall happen by their own wilful default or negligence ; not- shall either of them be answerable for the other or others of them, but each for himself only, and then only for such portion of the premises as shall actually be received by him ; and I direct that said trustees shall not be required to give bonds for the faithful execution of the trusts hereby reposed in them. If by refusal to accept said trusts, by resignation, death, removal, or inca- pacity to act, the number of trustees shall at any time be reduced to one, it is my will that one or more trustees shall be appointed to fill such vacancy ; and I authorize my wife, if living, in conjunction with those of my children who shall have attained majority, to appoint and nominate such new trustees or trustee, with the concurrence of the judge of probate for the time being having jurisdiction over this will ; and in case of their neglect or refusal so to do, I refer the appointment to said judge of probate, or to the supreme judicial court sitting in chancery ; and such new trustees or trustee shall have and possess all and the like interest, power, and direction in and over the trust premises, as if he or they had been originally named and appointed in and by this instrument (except the exemption from giving bonds for the due execution of said trusts). I appoint the said and my wife guardians to each of my children during their minority ; and I direct that neither be re7 quired to give bonds for their fidelity as such guardians. I constitute and appoint the said the executor of this will, which shall operate upon all real estate of which at the time of my decease I shall be owner. In Witness Whereof, I, the said have hereunto set my hand and seal, this second day of January, in the year eighteen hundred and forty- seven. {JVame.) {Seal.) Then and there signed, sealed, published, and declared by the said as and for his last will and testament, in presence of us who at his request, in his presence, and in presence of each other, have hereto sub- scribed our names as witnesses. ABSTRACT OF THE LAWS OF ALL THE STATES CONCERNING WILLS. ALABAMA. — All persons of full age and sound mind may make a will. It must be in writing, signed by the testator, attested by at least two witnesses in the presence of the testator. ARKANSAS. — The testator must be twenty-one years or more of age, and of sound mind ; he must subscribe his name at the end of the will, in the presence of hvo witnesses, and acknowledge it to be his will, and the wit' nesses must sign at the request of the testator. ABSTRACT OF WILLS. jQy CALIFORNIA. — Wills, unless olographic, must be subscribed at the end by the testator, or some person in his presence, and by his direction, in the presence of two attesting witnesses, or acknowledged in presence of such witnesses, and must be attested by two witnesses in the presence of, and at the request of, the testator. COLORADO.— All wills must be in writing, signed by the testator or some one in his presence, at his request, and attested in his presence by two or more credible witnesses. CONNECTICTTT. — Every person eighteen years of age, or more, and of sound mind, may make a will, and every devise passes the whole title unless clearly limited ; the will must be in writing, signed by the testator, and at- tested by three witnesses in his presence, and in presence of each other. DELAWARE. — Any person of the age of twenty-one years, and of sound mind, may make a will. Married women, with the consent, in writing, of the husband, signed and sealed in presence of two witnesses, may make a will. The will must be in writing, signed by the testator, and attested by two cred- ible witnesses. FLORIDA. — Every person of the age of twenty-one years, and of sound mind, may make a will, and such will must be signed by the testator, or by some one in his or her presence, and by his or her direction, and attested and subscribed in his or her presence, by three or more witnesses. Nuncu- pative wills must be proved by three witnesses present. GEORGIA. — Persons of fourteen years of age, and sound mind, may make a will. A married woman may make a will of her separate estate. Wills must be in writing,, signed by the testator, or by some person in his presence, and by his express direction, and attested and subscribed by at least three competent witnesses. ILLINOIS. — Any male of twenty-one years, or female of eighteen years, of sound mind and memory, may make a will. It must be in writing, signed by the testator, or by some one in his presence, and by his direction, and attested by two or more credible witnesses in the presence of the testator, who must be able to say they saw the testator sign. INDIANA. — All persons, except infants and persons of unsound mind, may make a will. Every devise passes the testator's whole interest. The will must be in writing, signed by the testator, or in his presence, and by his consent, and attested and subscribed in. his presence by two or more competent witnesses. IO"W A.— Testator must be of full age and sound mind. , Personal prop- erty to the value of three hundred dollars may be bequeathed by a verbal (nuncupative) will, attested by two competent witnesses. All other wills must be in writing, witnessed by two competent witnesses, and signed by the testator, or by some one in his presence, and by his express direction. KANSAS.— Any person of full age and sound mind may make a will. It must be in writing, signed at the end by the testator, or by some one in his presence, and by his direction, and it must be attested in the presence of 768 < THE DISPOSAL OF PROPERTY BY WILL. the testator, by two or more competent witnesses, who saw the testator sign, and heard him acknowledge the will for his last will and testament. KENTUCKY. — The testator must be of sound mind, and not under twenty-one years, nor a married woman ; but married women may make a will of their separate estate. It must be in writing, signed by the testator, or some, one for him, and if not wholly written by himself, must be subscribed or acknowledged in the presence of at least two credible witnesses, who must, sign in the presence cf t!ie testator. liOTJISIANA. — Wills are of thres kinds : i. Nuncupative, or open tes' taments. 2. Mystic, or sealed testaments. 3. Olographic testaments. Nun- cupative testaments, by public act, must be received by a notary pubMc in the presence cf three witnesses, residing where the will is executed, or five witnesses not residing in such place. It must be dictated by the testator, and wrifen by the notary as dictated, then read to the testator in the pres- ence of the witnesses, and signed by the testator, and attested by all the wit- nesses. Nuncupative testaments,, by private act, must be written by the tes- tator himself, or from his dictation, in the presence of five witnesses not residing in the place where the will was made, or it is sufBpient if the testa- tor presents the paper, on which he has written the will, declaring that the paper contains his will. It must be read by the testator to the witnesses, and signed by the testator and all the witnesses. Mystic, or sealed testaments, are made as follows : The testator must sign his dispositions, and the paper then closed and sealed. He shall then present it thus closed to a notary pubhc and seven witnesses ; he shall declare it to be his last will and testament in their presence. The notary must then draw up the act of superscription on the same paper or envelope, and sign it, together with the testator and the wit- nesses. Olographic wills are entirely written, dated, and signed by the testator himself. No woman, male child under sixteen years of age, insane, deaf and dumb, or blind person can make a will. MAINE. — The testator must be of sound mind, and twenty-one years of age, and the will must be signed by the testator, or some one in his pres- ence, and at his request, and subscribed in his presence by three credible witnesses, not interested in the will. MABTIiAND. — The will must be in writing, signed by the testator or some one in his presence, and by his express direction, and attested and sub- scribed in his presense by three or four credible witnesses. MASSACHUSETTS.— Every person of full age and sound mind may make a will, which must be in writing, signed by the testator, or by some one in his presence, and by his direction, and attested and subscribed in his presence by three or more competent witnesses. MICHIGAN. — The testator must be of full age, and sound mind. A devise passes the whole interest, unless specially limited. The will must be in, writing, signed by the testator, or some one in his presence, and by his direction, and attested and subscribed in his presence by two or more competent witnesses. aSstracto'f wills. 769 MINNESOTA.— The reqiiirfeftieftts of a will are the same as in Michi- gan. Mississippi.— The testator m'ust be twenty-one years old, whethfer ■male or female, atid of souiid mind. The will must be signed by the testator, or some one in his presence, and by his direction, and, if not olographic, attested by three credible witnesses, in the case of a devise of real estatfe, and by one or rno'rfe credible witnesses in case of a devise of goods and chat- tels ahd personal estatfe, wh6 sign in presence of the tes'ta'tor. MISSOTJKI.— The will must be in writing, signed by the testator, Or some one by his direction, in his presence, and attested by two or morfe com- petent witnesses, \(rho sign in the presence of the testator. NEBKASKA. — "Wills must be in writing, signed by the testator, or some one in his presence, and by his direction, and attested and subscribed in the presence of the testator by two or more competent witnesses. NEVADA. — The testator must be eighteen years of age and of sound liri*d. The will must be in writing, signed by the testator, and sealed with his seal, 'or by some one in his presence, by his direction, and attested in the presence of the testator, by at least two competent witnesses. NEW HAMPSHIRE.— Any person of twenty-one years of age aiid so not 50 782 INTERPRETATION OF CONTRACTS. CHAPTER XL. CONSTRUCTION AND INTERPRETATION OF CONTRACTS. SECTION I. GENERAL PURPOSE AND PRINCIPLES OF CONSTRUCTION. The importance of a just and rational construction of every contract and every instrument, is obvious. If any one contract is properly construed, justice is done to the parties directly interested therein. But the rectitude, consistency, and uni- formity of all construction, enables all parties to do justice to themselves. For then all parties, before they enter into con- tracts, or make or accept instruments, may know the force and effect of the words they employ, of the precautions they use, and of the provisions which they make in their own behalf, or permit to be made by other parties. It is obvious that this consistency and uniformity of con- struction can exist only so far as construction is governed by fixed principles, or, in other words, is matter of law. And hence arises the very first rule ; which is, that what a contract means is a question of law. It is the court, therefore, that determines the construction of a contract. They do not state the rules and principles of law by which the jury are to be bound in constru- ing the language which the parties have used, and then direct the jury to apply them at their discretion to the question of construction ; nor do they refer to these rules unless they think proper to do so for the purpose of illustrating and explaining their own decision. But they give to the jury, as matter of law, what the legal construction of the contract is, and this the jury are bound absolutely to take. A distinction is to be observed between the construction of a contract and the correction of a mistake. For, if it were in proof that the parties had intended to use one word, and that another was in fact used by a mere verbal error in copying or writing, such error might be corrected by a court of equity upon a bill filed for that purpose, and the instrument so corrected SOME GENERAL RULES OF CONSTRUCTION. 783 would be looked upon as the contract which the parties had made, and be interpreted accordingly. But this jurisdiction is confined strictly to those cases where different langicage has been used from that which the parties intended. For if the words employed were those intended to be used, but their actual meaning was totally different from that which the parties sup- posed and intended them to bear, still this actual meaning would, generally, if not always, be held to be their legal meaning. Upon sufficient proof that the contract did not express the mean- ing of the parties, it might be set aside ; but a contract which the parties intended to make, but did not make, cannot be set up in the place of one which they did make, but did not intend to make. SECTION II. SOME OF THE GENERAL RULES OF CONSTRUCTION. The subject-matter of the contract is to be fully considered. There are very many words and phrases which have one mean- ing in ordinary narration or composition, and quite another when they are used as technical words in relation to some spe- cial subject ; and it is obvious that, if this be the subject-matter of the contract, it must be supposed that the words are used in this specific and technical sense. So, too, the situation of the parties at the time, and of the property which is the subject-matter of the contract, and the intention and purpose of the parties in making the contract, will often be of great service in guiding the construction, be- cause this intention will be carried into effect so far as the rules of language and the rules of law will permit. So the moral rule may be applicable, that a party will be held to that mean- ing which he knew the other party supposed the words to bear, if this can be done without making a new contract for the parties. Indeed, the very idea and purpose of construction imply a previous uncertainty as to the meaning of the contract ; for where this is clear and unambiguous, there is no room for con- struction, and nothing for construction to do. A court would not, by construction of a contract, defeat the express stipulations 784 INTERPRETATION OF CONTRACTS. of the parties. And if a contract is false to the actual meaning and purpose of the parties, or of either party, the remedy does not lie in construction ; but, if the plaintiff be the injured party, in assuming the contract to be void, and establishing his- rights by other and appropriate means ; or, if the defendant be injured by defending against the contract on the ground of fraud or mistake, if the facts support such a defence. A construction which would make the contract legal is pre- ferred to one which would have an opposite effect ; and by an extension of the same principle, where certain things are to be done by the contract which the law has regulated in whole or in part, the contract will be held to mean that they should be done in such a way as would be either required or indicated by the law. The question may be whether the words used should be taken in a comprehensive or a restricted sense ; in a general or a. particular sense ; in the popular and common, or in some unusual and peculiar sense. In all these cases the court will endeavor to give to the contract a rational and just construc- tion ; but the presumption — of greater or less strength, accord- ing to the language used, or the circumstances of the case — is in favor of the comprehensive over the restricted, the general over the particular, the common over the unusual- sense. It is a rule that the whole contract should be considered in determining the meaning of any or of all its parts. The reason is obvious. The same parties make all the contracts, and may be supposed to have had the same purpose and object in view in all of it, and if this purpose is more clear and certain in some parts than in others, those which are obscure may be illustrated by the light of those which are clear. Thus, the condition of a bond may help to explain the obligatory part. And the recital in a deed or -agreement has sometimes great influence in the interpretation of other parts of the instrument. The contract may be contained in several instruments, which, if made at the same time, between the same parties, and in relation to the same subject, will be held to constitute but one contract, and the court will read them in such order of time and priority as SOME GENERAL RULES OF CONSTRUCTION. ^gV Will carry into effect the intention of the parties, as thfe sam'e -may be gathered from all the -instruments taken together.. And the recitals in each may be Explained or corrected by a refer- ence to any other, in the same way as if they \vere only severd parts of one instrument. Another rule requires that the contract should be supported rather than defeated. The court cannot, however, through a desire that there should be a valid contract between the parties, undertake to reconcile conflicting and antagonistic expressions, of which the inconsistency is so great that the meaning of the parties is necessarily uncertain. Nor where the language dis- tinctly imports illegality, should they construe it in a different iand a legal sense, for this would be to make a contract for thfe parties which they have not made themselves. But where there is room for it, the court will give a rational and equitable inter- pretation, which, though neither necessary nor obvious, has the advantage of being just and legal, and supposes a lawful con- tract which the parties may fairly be regarded as having made. So, for the same reason, all the parts of the contract will be ■construed in such a Way as to give force and validity to all of them, and to all of the language used, where that is possible. All legal instrumetits should be grammatically written, and should be construed according to the rules of grammar. But this is hot an absolute rule of law. On the contrary, it is so far immaterial in what part of an instrument any clause is written, that it will be read as of any place and with any context, and, if necessary, 'transposed, iii order to give effect to the certaih meaning and purpose of the parties. Still this will be done only when their certain and evident intent requires it. Inaccuracy or confusion in the arrangement of the parts and clauses of ah "instrument is, therefore, always dangerous ; because the intent %iay in this way be made so uncertain as not to admit of a remedy by construction. Generally, all relative words are read as referring to the nearest antecedent. But this rule of grammar is not a rule of law, where the whole instrument shows plainly that a reference was intended to an earlier antecedent. So, it is a general proposition, that where clauses are repug- nant and incompatible, the earlier prevails in deeds and othei- 786 INTERPRE TA TION OF CONTRA CTS. instruments among the living, if the inconsistency be not so great. as to avoid the instrument for uncertainty. But in the construction of wills it has been said that the latter course pre- vails, on the ground that it is presumed to be a subsequent thought or purpose of the testator, and therefore to express his last will. An inaccurate description, and even a wrong name of a per- son, will not necessarily defeat an instrument. But it is said that an error like this cannot be corrected by construction, unless there is enough beside in the instrument to identify the person, and thus to supply the means of making the correction. That is, taking the whole instrument together, there must be a rea- sonable certainty as to the person. It is also said that only those cases fall within the rule in which the description so far as it is false applies to no person, and so far as it is true applies only to one. But even if the name or description, where erro- neous, apply to a wrong person, we think the law would permit correction of the error by construction, where the instrument, as a whole, showed certainly that it was an error, and also showed with equal certainty how the error might and should be cor- rected. Instruments are often used which are in part printed and in part written ; that is, they are printed with blanks, which are afterwards filled up ; and the question may occur, to which a preference should be given. The general answer is, to the written part. What is printed is intended to apply to large classes of contracts, and not to any one exclusively ; the blanks are left purposely, that the special statements or provisions should be inserted, which belong to this contract and not to others, and thus discriminate this from others. And it is reason- able to suppose that the attention of the parties was more closely given to those phrases which they themselves selected, and which express the especial particulars of their own contract, than to those more general expressions which belong to all contracts of this class. But if the whole contract can be construed together, so that the written words and those printed make an intelligible contract, this construction should be adopted. Because the intention of the parties is presumed to be " alive and active THE PRESUMPTIONS OF LA W. 787 throughout the whole instrument, and that no averments are anywhere inserted without meaning and without use." SECTION III. ON THE PRESUMPTIONS OF LAW. . There are some general presumptions of law which may be considered as affecting the construction of contracts. Thus, it is a presumption of law that parties to a simple con- tract intended to bind not only themselves, but their personal representatives ; and such parties may sue on a contract, although not named therein. Hence, as we have seen, executors, though not named in a contract, are liable, so far as they have assets, for the breach of a contract which was broken in the lifetime of their testator. And if the contract was not broken in his life- time, they must not break it, but will be held to its performance, unless this presumption is overcome by the nature of the con- tract ; as where the thing to be done required the personal skill of the testator himself. So, too, if several persons stipulate for the performance of any act, without words of severalty, the presumption of law is here that they intended to bind themselves jointly. But this presumption also might be rebutted by the nature of the work to be done, if it were certain that separate things were to be done by separate parties, who could not join in the work. It is also a legal presumption that every grant carries with it whatever is essential to the use and enjoyment of the grant. But this rule applies more strongly to grants of real estate than to transfers of personal property. Thus, if land be granted to another, a right of way to the land will go with the grant. Where anything is to be done, as goods to be delivered, or the like, and no time is specified in the contract, it is then a presumption of law that the parties intended and agreed that the thing should be done in a reasonable time. But what is a reasonable time is a question of law for the court. They will consider all the facts and circumstances of the case in determin- ing this, and if any facts bearing upon this point are in question it will be the province of the jury to settle those facts, although ,^^8 INTERPRE TA TION OF CONTRA CTS. the influence of the facts when they are ascertained, upon th.e question of reasonableness of time, remains to be determined' by the court. SECTION IV. OF THE EFFECT OF CUSTOM OR USAGE. We have already had occasion to remark, that a custom which may be regarded as appropriate to the contract and com- prehended by it, has often very great influence in the construction of its language. The general reason of this is obvious enough. If parties enter into a contract, by virtue whereof something is to be done by one or both, and this thing is often done in their neighborhood, or by persons of like occupation with themselves, and is always done in a certain way, it must be supposed that they intended it should be done in that way. The reason for this supposition is nearly the same as that for supposing that the common language which they use is to be taken in its com- mon meaning. And the rule that the meaning and intent of the parties govern, wherever this is possible, comes in and operates. Hence an established custom may add to a contract stipulations not contained in it ; on the ground that the parties may be supposed to have had these stipulations in their minds as a part of their agreement, when they put upon paper or expressed in words the other part of it. So custom may control and vary the meaning of words ; giving even to such words as those of number a sense entirely different from that which they commonly bear, and which indeed by the rules of language, and in ordinary cases, would be expressed by another word. This influence of custom was first admitted in reference to mercantile contracts. And indeed almost the whole of the law- merchant, if it has not grown out of custom sanctioned by courts and thus made law, has been very greatly modified in that way. For illustration of this, we may refer to the law of bills and notes, insurance, and contracts of shipping generally. And although doubts have been expressed whether it was wise or safe to per- mit express contracts to be controlled, or, if not controlled, affected by custom in the degree in which it seems now to be established that they may be, this operation of custom is now THE EFFECT OF CUSTOM OR USAGE. 789 fixed by law, and extended to a vast variety of contracts ; and indeed to all to which its privileges properly apply. And quali- fied and guarded as it is, it seems to be no more than reasonable. In fact, it may be doubted whether a large portion of the com- mon law of England and of this country rests upon any other basis than that of custom. The theory has been held, that the actual foundation of most ancient usages was statute law, which the lapse of time has hidden out of sight. This is not very probable as a fact. The common law is every day adopting as rules and principles the mere usages of the community, or of those classes of the community who are most conversant with the matters to which these rules relate ; and it is certain that a large proportion of the existing law first acquired force in this way. Other facts must be considered ; as how far the meaning sought to be put on the words departs from their common mean- ing as given by the dictionary, or by general use, and whether other makers of this article used these words in various senses, or used other words to express the alleged meaning. Because the main question is always this : Can it be said that both par- ties ought to have used these words in this sense, and that each party had good reason to believe that the other party so under- stood them .' Custom and usage are very often spoken of as if they were the same thing. But this is a mistake. Custom is the thing to be proved, and usage is the evidence of the custom. Whether a custom exists is a question of fact. But in the proof of this fact questions of law of two kinds may arise. One, whether the evidence is admissible, which is to be settled by the common principles of the law of evidence. The other, whether the facts stated are legally sufficient to prove a custom. If one man tes- tified that he had done a certain thing once, and had heard that his neighbor had done it once, this evidence would not be given to the jury for them to draw from it the inference of custom if they saw fit, because it would be legally insufficient. But if many men testified to a uniform usage within their knowledge, and were uncontradicted, the court would say whether this usage was sufficient in quantity and quality to establish a custom, and 790 INTERPRETATION OF CONTRACTS. if they deemed it to be so, would instruct the jury, that, if they believed the witnesses, the custom was proved. The cases on this subject are numerous. But no definite rule as to the proof of custom can be drawn from them, other than that derivable from the reason on which the legal operation of custom rests ; namely, that the parties must be supposed to have contracted with reference to it. As a general rule, the knowledge of a custom must be brought home to a party who is to be affected by it. But if it be shown that the custom is ancient, very general and well known, it will often be a presumption of law that the party had knowledge of it ; although, if the custom appeared to be more recent, and less generally known, it might be necessary to es- tablish by independent proof the knowledge of this custom by the party. One of the most common grounds for inferring knowledge in the parties, is the fact of their previous similar dealings with each other. The custom might be so perfectly ascertained and universal, that the party's actual ignorance could not be given in proof, nor assist him in resisting a custom. If one sold goods, and the buyer being sued for the price, de- fended on the ground of a custom of three months' credit, the jury might be instructed that the defence was not made out unless they could not only infer from the evidence the existence of the custom, but a knowledge of it by the plaintiff. But if the buyer had given a negotiable note at three months, no ignor- ance of the seller would enable him to demand payment with- out grace, even where the days of grace were not given by statute. In such a case, the reason of the law of custom — that the parties contracted with reference to it — seems to be lost sight of. But in fact the custom in such a case has the force of law ; an ignorance of which cannot be supposed, and, if it be proved, it neither excuses any one, nor enlarges his rights. No custom can be proved, or permitted to influence the con- struction of a contract, or vary the rights of parties, if the cus- tom itself be illegal. For this would be to permit parties to break the law because others had broken it, and then to found the rights upon their own wrong-doing. Neither would courts sanction a custom by permitting its ADMISSIBILITY OF INTRINSIC EVIDENCE. ja\ operation upon the rights of parties, which was in itself wholly unreasonable. In relation to a law, properly enacted, this inquiry cannot be made in a country where the judicial and leg- islative powers are properly separated. But in reference to custom, which is a quasi law, and has often the effect of law, but has not its obligatory power over the court, the character of the custom will be considered ; and if it be altogether foolish, or mischievous, the court will not regard it ; and if a contract exist which only such a custom can give effect to, the contract itself will be declared void. Lastly, it must be remembered that no custom, however uni- versal, or old, or known, unless it has actually passed into law, has any force over parties against their will. Hence, in the interpretation of contracts, it is an established rule, that no cus- tom can be admitted which the parties have seen iit expressly to exclude. Thus, to refer again to the custom of allowing grace on bills and notes on time, there is no doubt that the par- ties may agree to waive this ; and even the statutes which have made this custom law, permit this waiver. And not only is a custom inadmissible which the parties have expressly excluded, but it is equally so if the parties have excluded it by a necessary implication ; as by providing that the thing which the custom affects shall be done in a different way. For a custom can no more be set up against the clear intention of the parties than against their express agreement ; and no usage can be incorpo- rated into a contract which is inconsistent with the terms of the contract. Where the terms of a contract are plain, usage, even under that very contract, cannot be permitted to affect mate- rially the construction to be placed upon it ; but when it is ambiguous, a long-continued usage may influence the judg- ment of the court, by showing how the contract was understood by the parties to it. SECTION V. OF THE ADMISSIBILITY OF EXTRINSIC EVIDEXCE IN THE INTERPRETA- TION OF WRITTEN CONTRACTS. It is very common for parties to offer evidence external to' the contract in aid of the interpretation of its language. The 792 INTERPRETATION OF CONTRACTS. general rule is, that such evidence cannot be admitted to con- tradict or vary the terms of a valid written contract ; or, as the rule is expressed by writers on the Scotch law, "writing cannot be cut down or taken away by the testimony of witnesses." The rule is often expressed with sufficient exactness for ordi- nary purposes, in this way : " Evidence may be admitted to ex- plain a written contract, but not to contradict it." There are many reasons for this rule. One is, the general preference of the law for written evidence over unwritten ; or, in other wbrds> for the more definite and certain evidence over that which is less so ; a .preference which not only makes written evidence better than unwritten, but classifies that which is written. For if a negotiation be conducted in writing, and even if there be a distinct proposition in a letter, and a distinct assent, making a contract, and then the parties reduce this contract to writing, and both execute the instrument, this instrument controls the letters, and they are not permitted to vary the force and effect of the instrument, although they may sometimes be of use in explaining its terms. Another is, the same desire to prevent fraud which gave rise to the statute of frauds ; for as that statute requires that certain contracts shall be in writing, so this rule refuses to permit contracts which are in writing to be controlled by merely oral evidence. But the principal cause alleged in the books and cases is, that when parties, after what- ever conversation or preparation, at last reduce their agreement to writing, this may be looked upon as the final consummation of their negotiation, and the exact expression of their purpose. And all of their earlier agreements, though apparently made while it all lay in conversation, which is not now incorporated into their written contract, may be considered as intentionally re- jected. The parties write the contract when they are ready to do so, for the very purpose of including all that they have finally agreed upon, and excluding everything else, and making this certain and permanent. And if every written contract were held subject to enlargement, or other alteration, according to the testimony which might be offered on one side or the other as to previous intention, or collateral facts, it would obviously be of no use to reduce a contract to writing, or to attempt to give it certainty and fixedness in any way. ADM.TSSIS/LJTY OF INTRINSIC EVIDENCE. 703 It is nevertheless certain, that some evidence from without must be admissible in the explanation or interpretation of every contract. If the agreement be, that one party shall convey to the other, for a certain price, a certain parcel of land, it is only by extrinsic evidence that the persons can be identified who claim or are alleged to be parties, and that the parcel of land can be ascertained. It may be described by bounds, but the question then comes, where are the streets, or roads, or neighbors;- or monuments referred to in the description ; and it may sometimes, happen that much evidence is necessary to identify these per- sons or things. Hence, we may say; as the general rule, that as to t\ie fatties or the subject-matter of a contract, extrinsic evi- dence may and must be received and used to make them certain, if necessary for that purpose. But as to the terms, conditions, and limitations of the agreement, the written contract must speak exclusively for itself. Hence, too, a false description of person or thing has no effect in defeating a contract, if the error can be distinctly shown and perfectly corrected, by other mat ter in the instrument. A written contract, of which the memorandum satisfies the statute of frauds, is open to evidence to show that certain essen- tials of the actual contract are not in the memorandum, if the effect of the evidence is, not to vary the written contract, but. to show that no such contract was ever made. Recitals in an instrument may sometimes be qualified or con- tradicted by extrinsic evidence ; by " recitals " are meant the narrative of. the circumstances or purposes which have induced the parties to make the contract. So -the date of an instrument, or if. there be no date, the time when it was to take effect, which may be other than the day of delivery ; or the amount of the consideration paid, may be varied by testimony ; but if a note given for land is sued, the promisor cannot show in defence that the deed described a less quantity of land than had been stipu- lated. And an instrument may be shown to be void and with, out legal existence or efficacy, as for want of consideration, or for fraud, or duress, or any incapacity of the parties, or any illegality in the agreement. In the same way, extrinsic evi, dence may show a total discharge of the obligations of the con 794 INTERPRE TA TION OF CONTRA CTS. tract ; or a new agreement substituted for the former, which it sets aside ; or that the time when, or the place where, certain things were to be done, had been changed by the parties ; or that a new contract, which was additional and supplementary to the original contract, had been made, or that damages had been waived, or that a new consideration, in addition to the one mentioned, has been given, if it be not adverse to that named in the deed. And if no consideration be named, one may be proved. We have already said that a receipt for money is peculiarly open to evidence. It is only primd. facie evidence either that the sum stated has been paid, or that any sum whatever was paid. It is in fact not regarded as a contract, and hardly as an instrument at all, and has but little more force than the oral admission of the party receiving. But this is true only of a sim- ple receipt. It often happens that a paper which contains a receipt, or recites the receiving of money or of goods, contains also terms, conditions, and agreements, or assignments. Such an instrument, as to everything but the receipt, is no more to be affected by extrinsic evidence than if it did not contain the receipt ; but as to the receipt itself, it may be varied or contra- dicted by extrinsic testimony, in the same manner as if it con- tained nothing else. Lastly, no contract will be enforced, as a contract, if it have no plain and natural or legal meaning, by itself; and if admis- sible, extrinsic evidence can only show that the intention of the parties was one which their words do not express. But the supposed contract being set aside for such reasons as these, the parties will be remitted to their original rights and obliga- tions. INDEX. Abandonment, in the law of marine insur- ance, meaning of, 402. not obligatory on insured, 403. necessity of, 403. of tlie right of, 403. of the exercise of the right of, 405. how made, and by whom, 405. must be distinct, 405. if deficient in form, objections, how waived, 406. when insured must elect whether or not to abandon, 406. acceptance of by insurer, 406. of the effect of, 407. masters and owners become trustees for the insurers in respect to the property abandoned, 407. loss after must be made up by owner, 408. Acceptance, of offer, when necessary to make a contract, 6g. of bills of exchange, 209. how may be made, cancelled, etc., 209. can be done only by the drawee, his agent, or some one who accepts for his honor, 210. no holder is obliged to receive an accept- ance for honor, 211. holder may accept or refuse a qualified, 210. presentment for, 194. or payment, for honor, 210, 2ir. of abandonment in insurance, 406. of insurer, not necessary to give full effect to an abandonment, 406. Acceptor, of bill of exchange, 177. of bill, bound to pay the same at maturity, 193- ■rights and duties of, Z09. Accommodation Paper, incidents of, 18S. Acknowledgment, necessary before record- ing deeds, 449. Actions, abstract of the laws of aH the States respecting the commencement of, 705, Adjustment, of average, 347, by whom made, 348. when binding, 347. difference between marine and fire policy in, 431. Administrators, and executors, law of, pow- ers and duties of, 770, Affirmation, of consignee or agent, 370. Agency, in general, 219, 320. may be established by subsequent ratifi- cation, 222. general rules of, 222-226. rights of action, growing out of, 227, 228. Agent, acting under del credere commission^ 232. must obey all instructions, 233. commercial jurisdiction over seamen, 358. extent and duration of authority of, 224- 226. general and particular, 220. binds the principal by his acts, 219. liability of, 224. may receive his authority, how, 221-224. acts of, may be ratified by principal after- wards, 222. may insure against fire, 421. when master of ship is, 352. in general, is entitled to indemnity from principal, 230. cannot appoint a sub-agent unless author- ized, 230. is bound to use all reasonable care and skill, 230. is responsible for any breach of duty, 230. employed to sell property, cannot buy it himself, 231. must keep exact account of all doings, 231. when he may throw up the agency at pleas- ure, 232. authority of, is revoked by insanity, 232. (79S) 796 INDEX. Agreement and Assent (chap, vi), 69. the legal meaning of, and requirement of, 69. when parties understand each other differ- ently, what their rights, 70. in construing, the intention of the parties always a guide, 70. mistakes of fact in, may be corrected by the courts ; mistakes of law cannot be, 70. what a legal assent is, 71. offers made on time, 72. a bargain made by correspondence, 73. what evidence may be received in refer- ence to a written contract, 74. of custom, or usage, 76. to do work, when broken by promisor, without good cause, he cannot recover, 116, rules for determining, when original agree- ment has been somewhat departed from, 117. when may be and when it should be made without seal, 118. when under seal, and so formed that it be- comes an indenture, 118. when by one only, without seal, it is a sim- ple promise, iiS. when by one only, under seal, it becomes a bond, 1 18. to be performed within a year, when not affected by the statute of frauds, 159. form, and subject-matter of, 160. if name be printed to, may be sufficient sig- nature, 160. when it should be written and signed by both parties, 79. not controlled by oral testimony, except in case of fraud, 79. for sale of lands, should always state cov- enants contemplated, 87. for arbitration, not binding on any, unless all have entered into it, 114. Alabama, law as to rights of married women in, 40. days of grace allowed, and legal holidays in, 215. statute of limitations in, 296. usury laws of, 315. number of witnesses and acknowledgment required to deeds of land executed in, 545- abstract of laws relating to collection and recovery of debts in, 705. chattel mortgages regulated by statute in, 659. Alabama, number of witnesses to wills neces- sary in, 766. mechanics' liens, abstract of law of, 746. Alienation, in the law of insurance, what is considered such as to terminate the in- sured's interest, 429. consent of insurer should be obtained to, 429. of policy, 430. Allowance, in the law of insurance, of new for old, 409. . Alterations, of policy of insurance, 377. effect of, on insured property, 418. prudent to obtain insurer's assent to, 419. Apprentices (chap, iv), 34. obligations of the master, 35. obligations of the apprentice, 35. what misconduct of, authorizes a discharge of him by his master, 35. seducing an apprentice away from his mas- ter, liability for, 35. Application, for insurance, how made, 415, Arkansas, law as to rights of married women in, 40. days of grace allowed and legal holidays in, 215. statute of limitations in, 296. usury laws of, 315. number of witnesses and acknowledgment required to deeds of land executed in, 545- abstract of laws relating to collection and recovery of debts in, 705. chattel mortgage regulated by statute in, 660. number of witnesses to wills necessary in, 766. mechanics' liens, abstract of law of, 746. Arbitrators, submission to, when it may be set aside by cither party, before award made, 266. Arbitration, is favored by law, 262. Articles of shipping, 356. Arrest, of vessel, how affecting insurers, 396. abstract of the laws of all the States re- specting, 705. Assignment, definition of, 127. of policy of insurance," 378. of policy, avoids it, when, 430. of policy, should be made on it, 435. always best to secure the insurance com- pany's assent to, 435. of policy, what constitutes, in life-insur- ance, 441 Attachment.— 5irtf Recovery of Debts, 70j- INDEX. 797 Attachment, abstract of the laws of all the States respecting, 705. Authority, extent and duration of agent's, 224. execution of, must be conformed to with strictness, 226. of ship-master, 352. Average, general, 344. when within the scope of insurance, 408. what is not included in, 345. adjustment of, 347. adjustment of, by whom made, when, 349. -Award, essentials of, 262. must be certain, 263. must be possible, 263, wl»en fully made, none of the parties have further control, 267. should be sealed up and delivered to all the parties, 267. must be reasonable, 263. must be final and conclusive, 263. no especial form of, necessary, 265. the directions in submission of, must be strictly followed, 265. set aside, if " procured by corruption or undue means," 265. set aside, if the arbitrator has made a ma- terial mistake of law or fact, 265. B. Sailee, may insure against fire, 422. Banks, receive more than legal interest, 312. Bank Bills, are promissory notes of a bank, payable to bearer, 186. a good tender, unless objected to at the time, 186. Bank Check, is a bill of exchange, 186. requires no acceptance, 187. if drawn when drawer has no funds in the bank, it is a fraud, 187. usually payable to bearer, 187. is not payment till cashed, 187. countermanded by death of drawer, 188. if a bank pay a forged, it is its own loss, 188. Baggage, carrier liable for reasonable amount of, 283, 284. what has been held as, 283, 284. Bargain, naked, is when no consideration is given. III. for real property, void when oral, 456. Barratry, how defined, 396. how provided against in the policy, 396. Bill of Lading, essentials of, 334-336. signed by master of ship, 335. evidence against shipowners, 335. 51 Bill of Lading, how given in case of char- ter parties, 341. Bill, legal meaning of, 163, of exchange, foreign and inland, 189. maker or acceptor of, how bound to pay the same, 193. what is meant by foreign, 200. loss of, no excuse for not protesting it, 200. notarial seal, evidence of dishonor of for- eign, 200, paid at maturity ceases to be negotiable, 209, portion of, cannot be transferred, 209. may be transferred by indorsement of executor, after death of the holder, 209. of sale of vessel, 361. of exchange, is what, 176. di-fference between parties to promissory note and parties to, 180. Blockade, what it is, and law of, 397. when it may be run, 397. Boarders and guests at hotels, distinction between, 289. Bond, essentials of, 118. condition of, 119. of bottomry, 331-333. of respondentia, by whom given, 354. " applies to what, 354. Bottomry, contract of, 331-333. bond of, 331-333. pledge, when justified, 353. Brokers, have generally no authority to receive payment, 234. Business Law, in general, in chap, ii, 27. Buyer, acquires the right to consider no safe as made, if the seller neglects or refuse to deliver the goods in reasonable time, I33- when imposed upon by fraudulent safe must at once exercise right of annulling it, as soon as he knows the frauds 142. c. California, law as to rights of married women in, 40. days of grace allowed, and legal holidays in, 215. statute of limitations in, 297. usury laws of, 315. number of witnesses and acknowledg- ment required to deeds of land executed in, 545- abstract of laws relating to collection and recovery of debts in, 706. chattel mortgages regulated by statute in, 660. 798 INDEX, California, number of witnesses to wills necessary in, 767. mechanics' liens,' abstract of law of, 747. Canada, laws of, 59, 692, 700. usury laws cf, 315. Capture, how affecting insurers, 397. Cargo, a part of the, when legal, may be insured, 3S2. when sold, or pledged by master, 353. Carrier, is liable only for goods delivered to him, 284. is liable only for injuries done by himself or servants to third persons, 285. private, liability of, 269, 270. when gratuitous bailee, 270. private, liable for gross negligence, 270. common, who is a, 271. common, rights and responsibilities of, 271. common, distinction between private and, 271. common, who are chargeable as, 271, 272. common, obligation of, 273-27S. common, cannot refuse goods without good cause, 273. common, is bound to receive goods in a suitable way, and at suitable times and places, 274. common, is bound to comply with direc- tions, 274. common, obligation as to passengers, 274, 275- common, obligation as to delivery of goods, 276, 277, common, immediate notice must be given when not delivered to owner or agent, 276. common, Hen of, on goods, 278. common, liability of, 278-280. common, liable for loss happening under his charge, except for act of God or public enemy, 279. common, liable for loss by fire, 279. common, general principles of agency apply to, 280. common, may be liable beyond his own route, 280. of passengers, is under more limited liability, than carrier of goods, 280. common, has a right to modify his liability by bargain, 281. common, notice by, if reasonable and just, is binding, 281. liability of, for goods carried by passengers, 283-285. liable for necessary amount of baggage, 283, 284. Carrier, may insure against fire, 422. Charter, power of master to, 352. Charterer, of ship, rights of, 340, 341. Charter Party, 365. defined, 340. no particular form for, 341. how suspended or annulled, 344. contract of, may be dissolved, how, 344.^ Chattel Mortgages, abstract of the laws of all the States respecting, 659. Choses IN Possession, a law-term, explained, 38- Choses ix Action, a law-term, explained, 38. Claim, for contribution, 344, of insured, founded on interest, 380. Codicils, meaning of, law of, and rules con- cerning, 758. Collision, who liable for, 354. rules in regard to, 355. a peril of the sea, 395. Colorado, law of as to rights of married women, 41. days of grace allowed, and legal holidays in, 215. statute of limitations in, 298. number of witnesses and acknowledg- ment required to deeds of land exe- cuted in, 545. abstract of laws relating to collection and recovery of debts in, 707. chattel mortgages, regulated by statute in, 660. number of witnesses to wills necessary in, 767. mechanics' liens, abstract of law of, 747. Common Carrier. See Carrier. Common Law, as distinguished from statutes, 27. Commerce, power to regulate, in CongresS| 324- Commercial Agents, jurisdiction of, over seamen, 358. Compound Interest, See Interest. Companies, for effecting fire insurance, 411. mutual, compared with joint stock, 411. usage of each other, may be appealed to in what cases, 413. all insured, become members in mutual fire insurance, 411. Compliance, with terms offered, when it makes a contract, 71. Concealment and misrepresentation, 3S9. converse of representation, 425. effect of, 425. when would operate as fraud, and avoid the policy, 426. INDEX. 799 Concealment, in case of life insurance, 441-445. Condition, of a bond, 119. on which application for insurance is based, 415. effect of, in deed, 455, Confession, of judgment, 211. Connecticut, law as to rights of married women in, 42. days of gitice allowed, and legal holidays in, 213. statute of limitations in, 297. usury laws of, 315. number of witnesses and acknowledgment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery of debts in, 708. chattel mortgages regulated by statute, in, 660. nuniber of witnesses to wills necessary in, 767. mechanics' liens, abstract of law of, 747. Consideration, required to support a prom- ise, III. exceptions to the rule requiring considera- tion for a promise, iii. sufficiency of, 1 1'2. what is a sufficient, 11 2-1 14. cannot be anything by which the public interests are harmed, 113. one promise is sufficient, for another, 113. failure of, 1 16. when failure is partial only, may be foundation for promise, 116. merely moral, is not in law a sufficiently legal, 114. illegal, 115. impossible, 115. implied by seal, 120. need not be alleged in a bond, 120. need not be expressed in agreement, 160. what it may be, valuable, legal, or moral, 192. none sufficient when illegal, 192. may be illegal, in how many ways, 192. for the insurance, 376. Consignee, may assign bill of lading, 335. cannot abandon goods for freight so long as they remain "in specie," 339. oath or affirmation, 371. may insure agwnst fire, 421. may cover in one policy, in his own name, goods of various consignors, 421. not bound to insure, but may in his dis- cretion, 421. Construction, of statute of limitations, 291. Consuls, jurisdiction of, over seamen, 358. Contract, for building, should always be accompanied by specifications, 94. void for illegality or fraud, 140 when "wager,''. 141. is vitiated and avoided by fraud, 141, in general, the law of place governs every, 189. law of the court determines all questions as to remedy on a, 190. for usury, wholly void, 309. foreign, for usury, valid everywhere but in the States where suit is brought, may be enforced there, 311. law of place of, governs construction of, 320. valid where made, valid elsewhere, 319. is made when, 320. is made where, 320. as influenced by law of place, 320, 321. of bottomry, 331-333. of affreightment, is entire, 336. of charter party, how dissolved, 344. of insurance, 376. of insurance, when complete, 413. of insurance must be strictly regarded, general principles of construction of, 782. some general rules of constntction of, 783. Contribution, claim for, during embargo or capture, 344. how made, 344. for ship's repairs, 345. Conveyances, of ships, recorded, 324. by one insured, when treated as a mort- gage, 43°- Covenants, of special or general warranty, should be stated- in agreement for sale of lands, 87. of warranty, in deed, 453, 454. Copyrights, law of, 695. what may be the subject of, 6g5. how copyrights may be obtained, 697. period of time for which they secure the right, 696. punishment for infringement of copyright, 698. agreement respecting copyrights and pub- lishing, 700. Coverture, a law-term, means marriage. Creditors, partnership, cannot attach pri- vate property till private creditors are satisfied, 253. levy of private, on partnership property, confers only what the partner has, 253. 8oo INDEX. Creditors, have an insurable interest in life of their debtor, 440. Custom, of merchants, its force and effect, 28. not valid if illegal, 29. has no force when contract made express- ly to the contrary, 78. or usage, made use of in construing the meaning and effect of a contract, and of the words used, 76, 77. never considered, if parties expressly agree to disregard it, 78. effects of, on contracts, 788. D. Dacotah, days of grace allowed, and holi- days in, 215. statute of limitations in, 298. Damages, when liquidated, when unliquidated, 148, 308. Days of Grace and holidays in all the States, abstract of, 215. Debt, barred under statute of limitations, 291. Debtor may insure his life in favor of creditor, 440. Debts, recovery and collection of, 703. Deed, meaning of legal and common, 446. should be signed, and in what manner, 446. seal of, is what, 447. should be delivered, 447. may be delivered by what persons, 448. execution of, should be attested by wit- nesses, 44S. acknowledgment of, incidents of, 449. must be registered in the proper record- ing office, 450. effect of non recording, 451, should be dated, 451. customary to name consideration in, 451. receipt of consideration in does not bind seller, 452. description of land in, should be minute and accurate, 452. when conferring life-interest, merely, 452. when conferring fee-simple, 453. terminated by clause of execution, 453. of warranty, or of quitclaim, 453. of quitclaim, with warranty, 454. hardly safe to have condition in, 455. as to husband and wife joining in, 455. variety of, 456. deed-poll explained, 457. . of indenture, 457. of mortgage, 54S. abstract of the laws of all the States relat- ing to, 545. Delaware, law as to rights of married women in, 43. days of grace allowed, and legal holidays in, 215. statute of limitations in, 298. usury laws of, 316. number of witnesses and acknowledgment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery of debts in, 709. chattel mortgages regulated by statute in, 660. number of wtnesses to wills necessary in, 767. mechanics' liens, abstract of law of, 747. Delivery, what is sufficient to constitute, 135, 136, 138. as bearing on the validity of the trans- action, 137. of policy, not essential, 413. necessary to assignment of life-policy, 441. essential to validity of deed, 447. of deed, may be made by whom, 448. Demand of Payment, is sufficient, if made at residence or place of business of payee, 197. and refusal, what constitutes, 197. bankniptcy or insolvency no excuse for non demand, 197. should be made at the proper place, 19^ for payments should be made at the placQ designated in the instrument, 199. Demurrage, law respecting, 344. Description, of property msured, 392. in the policy of insurance, 413. of insured property, held to amount to what, 416. Desertion, of seamen, how punished, 359. Deviation, how defined, 398. how affects insurers, 398. District of Columbia, interest and usury laws of, 315. DoMiciL, of person, how determined, 32i,-324_ a person can have but one, 322. first is retained till second is acquired, 323. may be changed, how, 322. woman marrying acquires her husband's,' 324- of the father determines that of chilc^ 324. Drawer, to bill of exchange, 177. Equity of Redemption, of mortgagor, 549- INDEX. Evidence, of death, what must be, 439. may disprove receipt in deed, 453. cannot be received to contradict or change tlie effect of a written contract, but may be received to explain it, 74. adujissibility of exjtrinsic,, to affect con- tracts, 7gi. ExGEPTiam, to commxm law rule, in case of negotiable paper, 190. statutory, under statute of limjtatipnsi 294. Executor, may indorse bill or note after death of holder, 209, EXECUiXaRS, law of, powers and duties of, 770. Execotion, of authority, 226. of fire policy, 4131. Exemption, of property, from aittachment or execution, 704. Exemptions, abstract of statutary provisions respecting in all the States, 705. Explanation, of a written contract, by evi- dence, law as to, 74, 75. P. Factor, may pledge goods for advances to principal, 233. must obey all instructions, 233. liable to principal for default, 233. may insure goods in possession, 233. may use his own name in all transactions, 234- distinction between foreign and domestic, 234. 235- cannot claim his commissions till his whole duty be performedj 234. Feme Covert,, a law-term, means a married woman, Feme'"^Sole, a law-term, means a single woman. Fire Insurance, to what applied, 411. by whom effected, 411. different kinds of companies for, 411. method of, 415. Foreclosure of Mortgage, explained, 550. Foreign and Inland Pills, 1S9, Florida, law as to rights of married women in,43- days of grace allowed, and legal holidays in, 215. statute of limitations in, 298. usury laws of, 316. number of witnesses and acknowledg- ment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery of debts in, 710, I 801 by Florida, chattel mortgages, regulated statute in, 660. number of witnesses to wills necess»ry in, ?67> mechanics' liens, abstract of law of, 747. Fraud, annulsall obligations and all contracts tainted by it, 71. mere silence in sejler, in general, is not, 142. vitiates and avoids all sales, 142. may be waived, when, 142. is waived, when action is brought to enforce the contract, 142. statute of, purposes and provisions, 156- 161. Freight, is not earned unless the goods are carried to place of destination, 336. rule for, " pro rata itineris," 337. cannot be earned by illegal voyage, 339. paid in advance, not afterwards earned, must be repaid, 339. party receiviijg goods becomes liable for, 338- lender on bottomry bond has no right to, 339f mortgagee not in possession has no right to> 339- is payable when goods are delivered, in specie^ though damaged, 339. word used how, 333. law of, 334. meaning of, 383. interest in, 383. subject of insurance, 383. G. Garnishee Process.^^^ Recovery of Debts, 703. Garnishment, abstract of the laws of all the States respecting, 705. General Average, 344. sacrifice must be voluntary, necessary, and effectual, 345. law of, rests on, 345. goods not contributed for, when, 346. held for contribution, 347. when jettisoned, owner entitled to contri- bution, 346. value of insured, 3S0. rules relative to total loss of, etc., 408. General Agency. — See Agency, 319. General Agent, master of ship is, 352. Georgia, law as to rights of married women in,,44- days of grace allowed, and legal holiday) 802 INDEX. Georgia, statute of limitations in, 299. usury laws of, 316. number of witnesses and acknowledgment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery of debts in, 710. chattel mortgages regulated by statute in, 660. number of witnesses to wills necessary in, 767. mechanics' liens, abstract of law of, 748. Guarantor, who is, 150. who pays principal's debt, may demand from the creditor the securities he holds, 151. not bound, unless he has knowledge of the acceptance of his guaranty, 152. discharged, if principal's liability is changed without guarantor's consent, 152. discharged, if the liability is extended by law, 152, 153. not always discharged by creditors giving debtor some accommodation or indul- gence, 153. should have reasonable notice of princi- pal's failure, 154. of a note or bill, is not entitled to as strict notice as indorser is, 204. Guaranty, incidents of, 150-153. not generally negotiable, 150, may be enforced, when original debt can- not be, 151. contract of, construed strictly, 151. unless by sealed instrument, must be sup- ported by a consideration, 151. not binding unless accepted, 152. specific, is not revocable, 153. if by an official, he is notbound personally, 154. margin, what is, 155. oral prevented by law, 157. effect of changing membership in a. firm on, 153. Guardians, law of, powers and duties of, 7S0. H. Holder, what he may do with a bill or note, '93' of negotiable paper, rights and duties of, 193- of bill, it is prudent for him to present the bill for acceptance without delay, 195. ill-health on part of, may excuse delay in presentment, 195. Holder, may refuse a qualified acceptance^ 210, may cancel the acceptance, 210. ' is not obliged to receive acceptance fo( honor, 211. Holidays, in all the States, abstract of, 215. Homestead, law of, 704. Hotel-keepers-, rights and duties of, 288- 290. have a lien on goods of guests for board, 288. must receive every guest, 289. liability of for loss of guests' property, 289. Husband, bound to support his wife while she lives with him, or if he sends her away without good cause, 60. a man is bound to support as his wife one whom he lives with, and represents as his wife, 60. may indorse a note or bill given to the wife before marriage, 209, Ignorance of Law, excuses no one, 70. Illinois, law as to rights of married women in, 44- days of grace allowed, and legal holidays in, 216, statute of limitations in, 299. usury laws of, 316. number of witnesses, and acknowledg- ment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery of debts in, 711, chattel mortgages regulated by statute in, 660. number of witnesses to wills necessary in, 767. mechanics' liens, abstract of law of, 748. Indiana, law as to rights of married women in, 45. days of grace allowed, and legal holidays in, 216. statute of limitations in, 299. usury laws of, 316. number of witnesses and acknowledgment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery of debts in, 712, chattel mortgages regulated by statute in, 660. number of witnesses to wills necessary in, 767. mechanics' liens, abstract of law of, 74S. INDEX. 803 Indorsee, of bill of exchange, 177. Indorsement, is what, 205. by law merchant, bills and notes payable to order are rightfully transferred only by, 206. in full, or in blank, 206. as to special, 207. joint payees who are not partners must join in, 207. Indorsement, the signatures of all previous indorsers are admitted by each, 207. may be restored if struck out by mistake, 208. may be made on the paper before the note or bill be drawn, 209. in blank, or in full, what they are, 185. Indorser, each admits by his indorsement the genuineness of each previous, 207. may make a bill payable to himself alone by special indorsement, 206. of bill of exchange, 1 77. rights and duties of, 205, 206. Infants, or minors, chap, iii, 30. who are, 30. when persons cease to be, 30, promise of, if not for necessaries, voidable by the infant, 30. promise of, for necessaries, not voidable by him, 32. promise of, may be confirmed, without words, 31. liable for frauds of any kind ; therefore lia- ble if he obtains goods or money by representing himself of full age, 32, -^y ratifies his promise to pay by keeping the thing for which he promised to pay, 33. necessaries, what are, 32. if one avoids a contract because made in infancy, he can take no benefit from it, y^. liable for torts, or wrong doing, 32. Inn-keepers, rights and duties of, 288. Iowa, law as to rights of mairied women in, 45- days of grace allowed, and legal holidays in, 216. statute of limitations in, 299. usury laws of. 316. number of witnesses and acknowledgment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery of debts in, 713. chattel mortgages regulated by statute in, 660. number of witnesses to wills necessary in, 767. Iowa, mechanics' liens, abstract of law of, 748. Insanity, of principal or agent, revokes author- ity, 232. Instruments, irregular and ambiguous, 186. Insurable Interest, and how discharged, 378. Insurance, policy of, 376. marine, how effected, 376. how affected by date of policy, 376. proposals for, 376. constructive, 376. who may effect, 376. how it is construed, 377. sustained by compliance with registry laws, how, 383, simultaneous, 384. effect of prior, 383. on freight, 383. double, 3S4. against piracy, 393. against robbery, 393, against theft, 393. terminates when, 402, purpose and principle of the law of, 409. effect of, in case of partial loss, 409. contract for, when complete, 413. application, how obtained, 415. on what conditions made, 415. must be actual authority to make, 422. double, not allowed, 423. double, how avoided by charter of com- pany, 423. evidence of overstatement of loss in, 432, fire, no rule in for deducting one-third new for old, 432. companies require sworn statement of cir- cumstances of loss, 433. against accident, disease, and dishonesty of servants, 445. Insured, must communicate what things, 390. must account for proceeds of sale when made by the master under necessity, 405. may abandon, when, 406. party, bound by what rules, 413. all become members when insured in mu- tual insurance companies, 41 [. must have an interest in the property in- sured, 420, when liable for assessments after loss under mutual policy, 432, must have an interest in life-insurance, 440. Insu RER, how bound by the contract, 376. discharged by concealment or misrepre- sentation, 3S9. liable for what risks, 393. 8o4 INDEX. Insurer, when liable for collision, 395. how far answerable for perils of the sea, 394- held for losses by fire, 395. liable for theft after shipwreck, 395. Uable for misconduct of the crew, when, 396- when liable under the general clause, 397. liabilities in case of prohibited or contra- band trade, 397. liabilities in case of capture, arrest, or de- tention, 396. how affected by detention, 396. how affected by deviation, 398. by payment for loss, acquire the insured's claim for contribution, etc., 409. when discharged by alterations, 419. must know whom they insure, 422. should be informed of what facts, 426. risk incurred by, 427. when not chargeable, 427. whether held for loss occasioned by negli- gence of the insured or his servants, 42S. liable for buildings blown up to check fires, 427. • when liable for property destroyed by lightning, 427. never held to pay more than sum insured, 428. Insurers, against fire, not held to pay for loss of profits, 431. pay whole amount lost, when covered by policy, 431. have a right to rebuild premises when de- stroyed, 431. Intention, in construction of policy, 414. Interest, is what, 307. may be demanded, on what grounds, 307. is allowed by law, how, 307. not generally recoverable, when, 308. laws regulating, 308. when usurious, 308. banks receive more than legal, 312. compound, incidents of, 314, 315. compound, is not strictly usurious, 314. method of computing, 315. insured's claim founded on, 381. insurable, 380. insurable, how discharged, 381. of the insured, 420. of mortgagor and mortgagee, as to insuring mortgaged property, 420. who have an insurable interest, 420, 421. exception as to the rule of any one allowed to insure property as his own in which he has a legal interest, 421. Interest,. of the insured in life insnrance,44a. Interpretation of contracts, the, 78. J. Joint-Tenancy, and Joint-Tenants, law- terms ; when two or more persons own anything jointly, i& joint-tenants, if one dies, the survivor or survivors take the share or interest of the deceased person, 255- Judgment, confession of, 212. Judgments, abstract of the laws of all the States respecting, 705. Jurisdiction, over salvage cases, 351. K. Kansas, law as to rights of married women in, 46. days of grace allowed, and legal holidays in, 216. statute of limitations in, 300. usury laws of, 316. number of witnesses, and acknowledg- ment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery of debts in, 714. chattel mortgages regulated by statute in, 66i. number of witnesses to wills necessary in, 767. mechanics' liens, abstract of law of, 748. . Kentucky, law as to rights of married women in, 46. days of grace allowed, and legal holidays in, 216. statute of limitations in, 300. usury laws of, 316. number of witnesses, and acknowledgment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery of debts in, 716. chattel mortgages regulated by statute in, 661. number of witnesses to wills necessary in, 768. mechanics' liens, abstract of law of, 749. Lands can be transferred by deed only, 44S Law-Merchant, what is meant by it, 28. Law-Terms, some explanation of, 29. Law of Place, 189. what is meant by, 31S. INDEX. Law OS' Place, as influencing contraots, 319. general principles of, 318, 319. of a State binds all persons and things within the limits of the State, 318, 319. has no fgrce beyond tile limits of the State, 319. of foreign States, have, by comity, a quali- fied influence, 319. of contract, governs the effect of the con- tract in regard to personal property, of real property, governs the construction of the contract, 319. Law, of shipping, how considered, 324. of freight, 334. of foreign country is presumed-to be the same as in. the place of suit,, in absence of testimony, 190. Laws, regulating pilotage, 359. regulatmg interest and usury, 308. Lay-Days, are what, 343. Lease, definition of contract of, 610. what passes to tenant under, 610, duties and obligations of landlord under, 610. tights and duties of tenant under, 611- 614. privilege of underletting by tenant under, 612. tenant when entitled to crops sown dur- ing the, 613. tights of tenant after expiration of, 613. what fixtures may be removed at expira* tion of, 614. abstract of the laws concerning, 6t5. Lender may charge extra price for risk in- curred, 3r2. on bottomry bond has no right to freight, 339- Liability of an agent, 227. of carrier for baggage of passengers, 283. of carrier may be modified by notice, 28r. of carrier, to third persons, for injury done them by carrier or servants, 285. of insurers, not affected by risk of the market, 410. none attaches to the insurers for a loss occurring by natural or other causes not insured against, before a loss insured against happens, 41 r. of master for discharging seamen, 359. Lettek, contract by, 73. " " completed when letter of acceptance mailed, 73. Libel, when presented, 349. Liberty Policies, 399., 80s Lien, means the right of the seller to retain the property till some claim he has is satisfledj 132. is lost by the seller, if the goods are deliv- ered, 132. of bottomry bond, depends not on posses- sion, 333- ship has, on goods for freight, 336. of seamen, on ship and freight for wages, 357. of material men, for supplies to ships, 360. of carrier, on goods, 278. of mechanics and material men, law of, with forms and directions, 743. Life-insurance, purpose and method of, 436- how effected, 436. rules of contracts applicable to, 436. premium for, how paid, 437, LiFE-PpLicIES, assignable at law, 440. Limited Partnerships, requisites of, 256. Limitations, statute of, 290. statute of, construction of, 29 x. statute of, new promise under, 292. statute of, part payment under, 293. statute of, when period of limitation be- gins under, 295. statute of, statutory exceptions under, 294. statute of, does not affect collateral secu- rity, 296. of owner's liability for master's misdeeds, 356- abstract of statutes of, in all the States, 296. Loss, how divided for average and contribu- tion, 347. and abandonment, 402, no total, by abandonment, unless the in- jury exceeds fifty per cent., 403. by jettison, salvage, etc., included in esti- mate of the, 404. after abandonment, must be made up by owner, 407. insurers entitled to possession after pay- ment for total, 407. of several insured shipments, there may be total loss of one, partial of another, 408. when partial, 409. rule for averaging, by allowing one-third for new, 409. ' third part of, what deducted from, 410. what would be evidence of overstatement of, 429. So6 INDEX. Louisiana, law as to rights of married women in, 47. days of grace allowed, and legal holidays in, 2 J 6. statute of limitations in, 300. usury laws cf, 316. number of witnesses and acknowledgment required to deeds of land executed in, 546. abstract of laws relating to collection and recovery cf debts in, 7 1 7. chattel mortgages regulated by statute in, 661. number of witnesses to wills necessary in, 76S. mechanics* liens, abstract cf law of, 749. M. Maker, of promissory note, jSo. rights and duties of, of negotiable paper, J93- of a bill, is bound to pay the same at maturity, 193. Mail, putting a letter in, effect of as to con- tract, 73- Maine, law as to rights of married women in, 48. days of gvace allowed, and legal holidays in, 216. statute of limitations in, 300. number of witnesses and acknowledgment required to de^ds of land executed in, 546. usury laws of, 316. abstract of laws relating to collection and recovery of debts in, 718. chattel mortgages regulated by statute in, 661. number of witnesses to wills necessary in, 768. mechanics' liens, abstract of law of, ?49- Marine Insuranxe. — See Insurance, 375- Maryland, law as to rights of married women in, 49. days of grace allowed, and legal holidays in, 216. statute of limitations in, 300. usury laws of, 31O. number of witnesses and acknowledgment required to deeds of land in, 546. abstract of laws relating to collection and recovery of debts in, 718. diattel mortgages regulated by statute in, 661. Maryland, number cf witnesses to wills necessary in, 768. mechanics' liens, abstract of law of, 749- Married Women (chap, v.), 37. rights of the husband at common law, as to. 37- all the property, real or personal, 38, 39. common law as to, not just or right, and changed by statute in nearly all our States, 39. law of, as it stands in the statutes of the several States, Abstract of, 40-59. wife may always be agent of her husband, 60. the frequent necessity of putting their property under trust, and how it can be done, 61. Massachusetts, law as to rights of married women in, 49. days of grace allowed, and legal holidays in, 217. statute of limitations in, 301, usury laws of, 316. number of witnesses and acknowledgment required to dcds of land executed in, 546. abstract of laws relating to collection and recovery cf debts in, 719. chattel mortgages regulated by statute in, 66t. number of witnesses to wills necessary in, 768. mechanics' liens, abstract of law of, 749. Master of Ship, should sign bill of lading, 335- and officers, not salvors, 350. holding goods for contribution, 330. powers and duties of, 352. power to sell the ship, 352. his liability for discharging seamen, 359. duties of repairing ship, 352. Material-Men, lien of, 360. — See Liens of Mechanics and Material-Men. Mechanics, liens of, 743. Michigan, law as to rights of married women in, 51. days of grace allowed, and legal holidays in, 217. statute of limitations in, 301, usury laws of, 316. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relating to collection and recovery of debts in, 720. INDEX. 807 Michigan, chattel mortgages regulated by .statute in, 661. number of witnesses to wills necessary in, 768. mechanics' liens, abstract of law of, 750. Minnesota, law as to rights of married women in, 51. days of grace allowed, and legal holidays in; 217. statute of limitations in, 301. usury laws of, 316. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relating to collection and recovery of debts in, 722, chattel mortgages regulated by statute in, 661. number of witnesses to wills necessary in, 770. mechanics' liens, abstract of law of, 750. Misrepresentation and Concealment, 389- Mississippi, law as to rights of married women in, 52, days of grace allowed, and legal holidays in, 217. statute of limitations in, 301. usury laws of, 316. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relating to collection and recovery of debts in, 723. number of witnesses to wills necessary in, 770. chattel mortgages regulated by statute in, 661. mechanics' liens, abstract of law of, 750. Missouri, law as to rights of married women in, 52. days of grace allowed, and legal holidays in, 217. statute of limitations in, 302. usury laws of, 316. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relating to collection and recovery of debts in, 724. chattel mortgages regulated by statute in, 661. number of witnesses to wills necessary in, 770. mechanics' liens, abstract of law of, 730. Mistakes of fact may be corrected by the courts, but mistakes of law will not be, 70. Mortgage of Land, or real estate, 548. law of, and rules concerning, 549. of the equity of redemption, 549. of foreclosure, 550. of the mortgagor's right to possession, 55'- Mortgage, of vessel, 363. puipose of, 548. how expressed, 549. containing power of sale, 550, Mortgage op Personal Property, not so formal as for land, 652. mortgagor may retain possession if mort- gage be recorded, 652. equity of redemption shorter than in land, 652. cannot be made of property to be after- wards acquired, 653. duties and liabilities of pledgee under, 653- difference between mortgagee and pledgee in, 653. pledgee under, cannot sell the pledge be- fore the debt is due, 653. under, pledgee may sell the pledge when the debt is due, and after notice given, 654. Mortgagee of ship, in possession, liable as owner, 331. of ship, not in possession, no right to freight, 339. insurable interest in property, 420. has what title to land mortgaged, 549. Mortgagor, insurable interest of in prop- erty, 420. right of, in regard to mortgaged land, 549- duty of, in regard to redemption, 550. Mutual Insurance Companies, amount insured in, 413- Nebraska, law as to rights of married women I in, 53- days of grace allowed, and legal holidays in, 218. statute of limitations in, 3':!3. usury laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relat.ng to collection and recovery cf debts in, 725. 8o8 IN^DEX. IIIebbaska, chattel mortgages regulated by statute in, 662. number cf witnesses to wills necessary in, 770. mechanics' liens, abstract of laws of, Negotiable Paper, what is meant by, rules of law en subject of, are technical and exact, 175. what is essential to, 182. difference between what is, and what is not, 182. time cf payment of, must, be certain, 182. must be payable in money, 182. may be written in pen or pencil, on paper or any proper substitute, and in any language, 1S3. as to form cf, 183. omission cf certain words may be supplied, 1S3. contingency apparent on the face of, pre- vents negotiab lity, 183. as to whether certain notes are, 183. exception to common law rule in case of, 190, 191. of transfer after dishonor of, 194. rights and duties of holder of, 193. rights and duties of maker of, 193. payable at a time certain, is entitled todays of grace, 198. in general, all parties to, entitled to notice, are discharged for want of it, 204. bill or note ceases to be, when paid, 209. Neutrality, warranty of, 3S6. Nevada, law as to rights of married women in, 53- days of grace allowed, and legal holidays in, 218. statute of limitations in, 303, usury laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relating to collection and recovery of debts in, 726. chattel mortgages regulated by statute in, 662. number of witnesses to wills necessary in, 770. mechanics' liens, abstract of law of, 751. New Hampshire, law as to rights of married women in, 53. days of grace allowed, and legal holidays in, 217. New Hampshire, statute of limitations in, 302. usury bws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relating to collection and recovery of debts in, 727. chattel mortgages regulated by statute in, 662. number of witnesses to wUls necessary in, 770. mechanics' liens, abstract of law of, 751. New Jersey, law as to rights of married wo- men in, 54. days of grace allowed, and legal holidays in, 217. statute of limitations in, 302. usury laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 547. abstract of laws relating to collection and recovery of debts in, 728. chattel mortgages regulated by statute in, 662. number of witnesses to wills necessary in, 770. mechanics' liens, abstract of law of, 751. New Promise, by one who had made the original promise when an infant, 31. a mere acknowledgment not enough, 31. J may be conditional, 31. if conditional, condition must be performed, 3'- New York, law as to rights of married women in, 54. days of grace allowed, and legal holidays in, 217. statute of limitations in, 302. usury laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relating to collection and recovery of debts in, 729. chattel mortgages regulated by statute in, 662. number of witnesses to wills necessary in, 770. mechanics' liens, abstract of law of, 752, North Carolina, law as to rights of married women in, 55. days of grace allowed, and legal holidays in, 218. statute of limitations in, 303. INDEX. 809 (North Carolina, usury laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relating to collection and recovery of debts in, 730. chattel mortgages regulated by statute in, 662. number of witnesses to wills necessary in, 770. mechanics' liens, abstract of law of , 752. Note, promissory, differs from bill of exchange, 177. indorsed in blank always transferrable by delivery, 185. when incomplete and invalid, 185. to a fictitious payee, with same name in- dorsed by maker, will be held the mak- er's own note, 185. payable to different persons, in the alterna- tive, not good, i86. payable at any place should be demanded there, 199. when not presented for payment, all par- ties but acceptor or maker are dis- charged, 199. sale of, when amounting to usury, 313, 314. Notice, of prdtest, must be given, even to one who has knowledge, 201. no particular form of necessary, 201. if letters be put in the office, any miscar- riage does not affect the party giving notice, 201. should be sent by public post, 201. should be sent to place of business or resi- dence of party notified, 202. of non-payment, should be^sent in reason- 'able time, 202. right to, may be waived by agreement, 204. death or severe illness is excuse for delay of, 205. want of, may be cured by express promise to pay, 205. Notice of Non-Payment, there is no pre- sumption of, 203. each party receiving, has a day before he is to send it forward,' 202. Should be given only by a party liable on the instrument, 203. must be given to every antecedent party who is to be held, 203. may be given to a party personally or his agent, 203. may be given to either of partners jointly > liable ; if not partners, then to each one, 204. Notice of Non-Payment, one transferring, without indorsement by delivery, is not generally entitled to, 204. to agent is notice to the principal, 203. common carrier has a right to modify his liability by, 281. of carrier's ' liability, may be indirectly brought home to a person, 282. general, will be enough to give to agents of insurer in case of loss, 431 . o. Obligee, one to whom the obligor is tnund in a bond, 119. Obligor, one bound by a bond, 119. held to pay so much only as will indemnify the obligee, 12b. Officers of Ship, not salvors, 350. Ohio, law as to rights of married women in, 55- days of grace allowed, and legal holidays in, 218. statute of limitations in, 303. usury laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relating to collection and recovery of debts in, 731. chattel mortgages regulated by statute in, 662. number of witnesses to wills necessary in, 770. mechanics' liens, abstract of law of, 752, Oregon, lawas to rights of married women in, 55- days of grace allowed, and legal holidays in, 218. statute of limitations in, 304. usiu-y law of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relating to collection and recovery of debts in, 732. chattel mortgages regulated by statute in, 662. number of witnesses to wills necessary in, 770. mechanics' liens, abstract of law of, 752. Owner, may recover goods from an honest purchaser who has bought from one with defective title, 133. cannot recover from one who bought in good faith from one who bought fraud- ulently from the owner, 133. 8io INDEX. Owners, when bound by master's acts, 352, 353- when liable for injuries done by master, 352. of sacrificed property acquire claim for con- tribution, 409. P. Partners, liability and authority begin when, 241. may share the profits or losses as they choose, 241. persons may be liable as, to third persons who are not as between themselves, 242. who is a secret, dormant, or nominal, 242. factors, brokers, etc., are not partners with those employing them, 243. may dissolve the partnership at pleasure when working no disadvantage to the others, 243. dissolution occurs by death of a general or special, 244. dissolution also when one partner's whole interest is sold on execution, 245. dormant or secret partner is not liable for debts contracted after his retirement, 245. should give notice of retirement, 245. each one is agent for all, 246. one cannot bind the firm by a guaranty, a letter of credit, or submission to arbi- tration without authority, 247. may bind tlie firm by instrument under seal, 247. must act as such, to bind the firm, 248. reception of a new, makes a new firm, 249. borrowing money for partnership purposes creates a partnership debt, 249. obtaining credit for partnership purposes makes the firm liable, 249. partner in general cannot sue another for claim growing out of partnership inter- ests, 251. either may sue for balance on adjustment of accounts, 251. may sue his copartner for money advanced before partnership formed, 251. who pays more than his share of a debt must charge the firm, 252. the firm may sue for goods sold in the name of one, 252. surviving, are tenants in common only with representatives of deceased, 255. Partnership, is not credited by single joint transaction, 241. Partnership, all persons competent to do business on their ovra account may en- ter into, 241. when created, 240. no especial form is necessary for, 241. may be formed how, 241. usually is but one business name to a, 243, principal test of, is participation in profits, 243- may hold real as well as personal estate, 245. can have no seal at law, 248. money lent one partner for partnership purposes, makes a debt of the, 249. firm is liable only to one who deals with a partner in good faith, 250. may be liable for injury caused by criminal acts of a partner, 250. funds of, must first be applied to partner- ship debts, 253. creditors cannot attach private property till private creditors are satisfied, 253. property goes, in case of death of one part- ner, to the others, only for purpose of settlement, 255. limited, requisites of, 256. effect of dissolution of, 255. dissolution of, held to avoid policy of in- surance, 430. Part Owners of Ships, rights and obliga- tions of, 329. of ships, not necessarily partners, 329. may sell his share of ship, 329. all are liable for repairs to ship, 329. ship's husband, is commonly one of, 330. Passage-money, rules of, analogous to those of freight, 340. Passengers, may be salvor, 350. Patents, the law of, 663. what may be patented, 663. who is entitled to a patent, 663. what will prevent tlie granting of a patent, 664. mode of proceeding to obtain a patent, 664. applications ; what, and how to be made, 664. specifications ; what, and how to be made, 665. oath, or affirmation ; what, and how to be made, 667. foreigners ; what they must do, 667. drawings ; how they must be made and sent to the patent-office, 667. model ; how it must be made and sent to the patent-office, 668, INDEX. 8ii Patents, photographs; when admitted, and how prepared, 669. examination, when, and how made in the patent-office, 669. protests ; what they must be, and their effect, 670. appeals to the examiners-in-chief, 670. appeals to the Supreme Court of the Dis- trict of Columbia, 671. rules regulating the above appeals, 672. interferences, 672. re-issues, and surrender, 674. disclaimers, 676. extensions, 677. designs, how they may be patented, 679. foreign patents, do not prevent taking one here, 681. caveats, 6S1. assignments and grants of patent-rights, 683. fees payable to the patent-office ; what, and how payable, 685. testimony, how taken and transmitted, 687. papers, filing in the office, and preserva- tion there, 6go. amendments in specification and claim, when and how made, 691. Patent law of the Dominion of Canada, 692. Payee, of bill of exchange, 181. of promissory note, 180. must be designated, 184. Payment, how may be made, 161. negotiable bill or note, is not an absolute, 162. appropriation of, among several debts, 163. may be appropriated at time of, by payor, 163- impossibility of presenting a bill for, excuse some delay, 197. time of, in negotiable paper, must net depend on a contingency, 182. of negotiable paper, must be in money, 182. of bills, notes, etc., is to be demanded promptly, though need not be done instantly, 198, demand of, is sufHcient, if made at usual residence or place of business of payer, 197. ■what constitutes demand, and refusal of, 197- , bankruptcy or insolvency no excuse for not demanding, 197. bills on demand should be presented in a reasonable time for, 19S. Payment, every demand for should be mads at tlie proper place, 199. part, talces debt from imder statute of limitation, 293. debtor may appropriate, to any one of several debts, 293. Penalty, of a bond, 119. for not signing shipping articles, 356. for discharging seamen without their con- sent, 359. Pennsylvania, law as to rights of married women in, 56. days of grace allowed, and legal holidays in, 21S. statute of limitations in, 304. usury laws of, 317. number of witnesses and acknowledg- ment req^uired to deeds of land exe- cuted in, 547. abstract of laws relating to collection and recovery of debts in, 733. chattel mortgages, regulated by statute in, 662. number of witnesses to wills necessary in, 771. mechanics' liens, abstract of law of, 752. Perils, of the sea, 394. by fire, 395. Pilots, responsibilities of, 359. Place, what is meant by law of, 31S, general principles of law of, 318, law of, influencing contracts, 320. Policy, of insurance, 376. ' subsequent additions to, 377. of insurance, how affected by assignment, 378- of insurance, assignment of, 378. of insurance, when altered, 377. when open or valued, 378. wager, 378. value insured in an open, 379. memorandum in, 3S5. express warranty in, 385. embraces what perils, 393. providing against barratry by clause in, 396- liberty, 399. as to total loss, in the provisions of the, 404. valuation in the, generally determines the estimate of the loss, 404. of fire insurance, what necessary to exeai- tion of, 413. when delayed, and company not bound, 413- 8l2 INDEX, Policy, subsequent ratification by an agent, what effect, 414. of fire insurance, how constructed as to description, 414. intention must be expressed in, 414. words "stock in trade," include what in, 414. memorandum on back of, 415. mistake in, 415. when some parts written, some printed, 415. containing scale of premiums, 416. when void, for false statement of appli- cant, 416. how affected by greater hazard for a time, 417. when made by consignee will be construed to cover his interest only, when no interest is expressed, 421. by commission-merchant, in his own name, when it may cover goods of various consignors, 421. provisions against double insiu^nce, 422. when separate statements are part of, 423. indorsement made upon, may take effect as part of, though made before executed, 424. when statement not construed as part of, 424. difference between marine and fire, 425. when avoided by misrepresentations or concealments, 425. always avoided by warranty broken, 425. parties may make a valued, 428. is personal contract between the parties, 429. against fire, contains provision against assignment, 430, production of, certificate of loss, is condi- tion precedent to payment, 430. difference of adjustment between marine and fire, 431. assignment of, should be made on it, 435. assent of insurers had best be obtained to assignment of, 435. time of death in case of life insurance has important effect on payment of the, 438- restrictions on the life insured in the, 438. when avoided by death by suicide, 439. takes effect from date, 400. never attaches in case of unreasonable delay in sailing, 400. how affected by the words " at," " to," and " at and from," 400. on goods attaches when, 400. Port, what is meant by, in policy, 400. Power, to sell, implies power to warrant, etc., 221. of ship-master, 352-356. of attorney, custom-house, 372. Premium, when due and how paid, 391, when may be returned, 391. how paid in case of life insurance, 437. in case of life insurance when paid, /^^y. extra required in what cases, 439. Presentment, for acceptance, 194. should be made during business hours, 195. should be made to drawee or his agent, „ 195. for demand of paj-ment, ig6. for demand of payment, same for notes and bills, 196. for demand of payment, universal rule of law merchant in regard to, 198, Presumption of Law, affecting contracts how, 787. Principal, is bound by acts of the agent, 219, 220. may confer authority on agent how, 221. has power of revocation in general, 225, when undisclosed, may show that the nominal party was actually his agent, 228. is responsible for injuries resulting from a fraudulent representation of the agent, 228. is bound by payment of money to an agent only when done in regular course of business, 228. not responsible for criminal acts, unless he expressly commanded them, 229, who accepts the benefit of an act done by his agent discharges him from responsi- bility therefor, 229. general rule is, he may revoke his agent*s authority at pleasure, 232, cannot revoke authority given to factor after advances made, 234. Profits, how valued and insured, 379. Promise, of promissory note, 182. must be supported by a consideration, 111. to pay another's debt when original, when collateral, 157, 15S. in negotiable paper, must be absolute, 182, barred under statute of hmitations, 291. new, sufficient to take case from statute of limitations, 292. new, not implied from mere acknowledg- ment, 292. implied by part payment, 293. INDEX. 813 Promise, can never be enforced by one who knew the performance thereof impossi- ble, 115. cannot be enforced when supported only by a valueless consideration, though it was at first apparently good, 116. when severable, what may or may not be enforced, 116. for work to be done, when broken without good cause by promisor, he cannot recover, 116. Promisor, of promissory note, 180. Promissory Note, differs from bill of ex- change, 180. is what, 181. not negotiable when, 182. on demand is considered as intended as a continuing security, 194. Property, legal meaning of word, 131. of partnership is bound to pay partner- ship debts, 253. insured, description of, 392. insured must contribute to general aver- age when, 408. claim for contribution acquired by owners of sacrificed, 409. under insurance, effect of alterations on, 4,8. f ROPOSALS, of insurance, 376. Protest, and notice, 200-205. demand and, must be made according to law of the place where the bill is pay- able, 200. loss of bill no excuse for not protesting, 200. should be made on day of demand and refusal, 200. Notice of, various incidents of, 200-204. Provision by statute in behalf of seamen, 356- of seamen provided by owner, 357. Public Property, retained for contribution, 347- Purpose and use of this book (chap, i.), 23. K. Real Property, may be held by partner- ship, 245. oral bargain for, of no effect, 456. Reasonable Time, allowed by law for an acceptance of an offer ; what this time is, 72. Receipts, definition of, 164. open to explanation or contradiction, 165. in deed, may be shown not for value, 452. Recording of deeds, essentials of, 450. 52 Recovery of Debts, attachment, trustee process, garnishee process, homestead, and exemption from execution, 703. Recovery of Debts, abstract of the laws of the States respecting, 705. Registration of Ships, 324-326. Release, differs from receipt, 165. in the nature of a contract, requires con- sideration, 165. Repairs, of ship, 346. value of old material should be deducted in case of, 410. how affecting insurer and insured, 419. Representation, and warranty, 423. differs from a warranty, 424. how affecting the policy, 423. if in writing or in parol, 425. in case of life insurance, 440-444. Retract, when and how one may retract his offer, 73. Revocation is in general within the power of the principal, 225. of submission may be made by either party, 266. of submission, the other party has dam- ages for, 266. of submission, notice must be given of, 267. of submission, bankruptcy does not amount to, 267. of an offer, when, how, by whom, 73. Revocation of Wills, 759. Rhode Island, law as to rights of married women in, 56. days of grace allowed, and legal holidays in, 218. statute of limitations in, 304. usury laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 547- abstract of laws relating to collection and recovery of debts in, 734. chattel mortgages regulated by statute in, 663. number of witnesses to wills necessary in, 771. mechanics' liens, abstract of law of, 753. Rights, of action growing out of agency, 227. of the firm against third parties, 252. of creditors in respect to partnership funds, 253. of seamen in sickness, 357. of seamen to be brought home, 358. and duties, of maker of negotiable paper, 193- 8i4 INDEX. Rights, and duties of holder of negotiable paper, 193. and duties of indorser, 205, 206. and duties of acceptors, 209, Risk, common sea, 346. parties may agree as to, 394. when terminated, 401, 402. rules concerning "hazardous," 416, 417. Rules, in respect to passage-money, anslogous to those of freight, 340, regulating salvage, 350 governing collision, 355. for steam-vessels when meeting others, 355- of pilots, 359. concerning " hazardous " risks, 416, 417. s. Sacrifice, in average, how justified, 347. Sale, is to be immediately followed by pay- ment and delivery, unless otherwise agreed upon, 131. is made when the agreement is made, 131. what constitutes a, 130. distinction between agreement and, 130. every actual, is an executed contract, though payment may remain to be made, 130. executory contract for, is not a present, 130. of goods, is exchange thereof for money, 130. when bargain does, or does not become a, 131- is made when the agreement is made, 131- is not complete so long as something re- mains to be done to the goods by the seller, 132-134. is not necessarily complete on the comple- tion of some time agreed on, or happen- ing of some event, 135. can be done, of chattels or goods not in existence, 135. is none, but for a price that is certain or capable of being made so, 135. when once effected, the buyer has a right to possession, on payment, 135. when avoided by mistake, or defect in subject-matter, 138. when many things bought at one, right of buyer as to refusing a part without all, 139- buyer may have right of re-delivery by terms of bargain, 140. witli warranty, 142. Sale, of one's business, when good, when void, 147. of notes, when amounting to usury, 313. of ships, how regulated, 327. when made by master under necessity, proceeds must be accounted for by in- sured, 405. Salvage, what constitutes, 348, 349. how enforced, 349. proceedings for, 349. what proportion of value for, 350, 351. how distributed among salvors, 351. Salvors, who are, 349. passenger may be, 350. Seal, of deed, is what, 447. notarial, evidence of dishonor of foreign bill, 200. Seamen, rights of, in sickness, 357. discharge of, without consent, 35S. if discharged without their consent, have a right to be brought home, 358. desertion of, how punished, 359. punishment of, 359. Seaworthiness, warranty of, 387, 3S8. standard for, 388. Seller, has a lien on goods for payment, 132. may resell goods on notice given the buyer, if the buyer does not pay in a reasonable time, 132, cannot sell and give- good title, if he has only right of possession, 133. liability of, as to keeping goods, 136. obligations of, as to delivery, 136, 137, may annul a sale he was induced to make by fraud, 140. not necessarily bound by receipt in deei^ 452. Sheriff, as to levy and sale by, of partnel ship interests, 244. Ships, are personal property, 324. registration of, 324, 326. transfer of, should be followed by posses sion, 328. what is meant by, in passing property by sale of, 328. have a lien on goods for the freight, 336. when repaired, contribution for, 343. transfer of property in, 327, 328. conveyances of, recorded, 327. mortgagee of, in possession, liable as owner, 331. employment of, by owner, 333-340. Shipper, cannot abandon goods for freight so long as they are in specie, 339. Shipping, articles of, 356. INDEX. 815 Ship-Owner, may let his ship to others, 340. must pay for goods lost by his fault, or the fault of his ship, 340, Ship*s-Husband, is commonly part-owner, 330- powers of, 330. Signature, to agreement, when it may be in any part of the paper, 160. to negotiable paper, how it may be writ- ten, 183. Single Women, how their property may be put safely under trust, and secured to them, in view of their marriage, 61. South Carolina, law as to rights of mar- ried women in, 57. days of grace allowed, and legal holidays in, 218. statute of limitations in, 305. usury laws of, 317. number of witnesses and acknowledgment required to deeds of land executed in, 548. abstract of laws relating to collection and recovery of debts in, 735. chattel mortgages regulated by statute in, 663. number of witnesses to wills necessary in, 771- mechanics' liens, abstract of law of, 753. SpecificatioiJs, should accompany building contracts, 94. Statute of Limitations. — See Limita- tions. Statdtes, as distinguished from common law, 27. provisions respecting seamen, 356. of frauds, purpose, and provisions, 156- 161. Stay Lavi^s, abstract of in all the States, 705. Stoppage in Transitu, 148. exists only in actual insolvency, 148. must be effected by seller, 149. hindered by possession of buyer, actual or constructive, 149. barred by bona fide sale by buyer, 149. a seller exercising right of, does not re- scind the sale, but holds the goods as property of the buyer, 150. Submission, to arbitrators, may be revoked by either party before award made, 266. other party has damages for revocation of, 265. Subscription Papers, law as to them, i'i4. Survey of Vessels, when ordered, 357. T. Tenancy by the curtesy, a law-term, ex plained, 37. Tender, what constitutes a good, 161. lawful, and payment in court, is