CJorn^U ^£m ^rlinol ICtbraty Cornell University Library KF 390.F2H14 1893 Our rights and duties :manual of law and 3 1924 018 798 805 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018798805 MANUAL 1 FARM LAW o o Z w r r c z m H _>< H > o > UNIVERSITY OF 10\¥A, IOWA CITY. MAIN BUILDTNG, UNIVERSITY OF MICHIGAN, ANN ARBOR, OUR RIGHTS AND DUTIES. HRanual °t Law AND BUSINESS FORMS. BY . Henry A. Haigh, Cownielor at Law. DARLING PUBLISHING CO., Publishers, DJETBOIT, MICBI&AN, AND ST. LOUIS. MO. 1893. ^rA^//U COPTRIGHTBD, 1881 BY HHJNRY A. HAIQH. COPYRISHTBD, 1887, BY fi>. S. DAREjIBIQ, Dbtroit, Mioh. till- M13 PKEFACE. For several years the writer conducted in The Michigan ^Farmerj_and_ subsequently in The_Am.ej:i£an_A£yicuiiuris(, a department in which the Law of the Farm was set forth in a series of short articles, and answers were given to inquiries by subscribers upon legal questions arising in the experiences of farm life. During that time the suggestion was frequently made to iiim that if the articles and the questions with their answers cu^d be embodied in connected form they would mak« a book of practical use to farmers and the industrial classes generally. The present volume is in part the result of that suggestion and while it is sought to give special prominence to those si:bjects which are of most common importance among farmers and artisans, still effort has not been spared to make the work useful to the general reader. The book is not intended to obviate the necessity for the assistance of a lawyer. Such a claim for it ,would be neither reasonable nor candid. But it is hoped that its suggestions may be found useful in preventing mistakes of ignorance or care- lessness, and thus help to keep its readers out of some of the entanglements of the law. And if it shall serve to throw some light upon that subject of paramount importance, namely — the laws of the land — among classes so numerous that they constitute the great mass of the population, the author will feel that he has not labored in vain. HENRY A. HAIGH. r STATE NORMAL AND TRAINING SCHOOL, OSWEGO, N. Y. IOWA STATE NORMAL. CEDAR FALLS. TABLE OF CONTENTS. PART I. CHAPTER I. PRELIMINARY CONSIDERATIONS. Definition of I, aw — Sources of Law — The Federal Constitution — Acts of Congress — State Constitutions — State Statutes — The Common Law — General Principles — Contracts — Requisites of Contracts — Legality — Contracts in Restraint of Trade — Parties to Contracts — Mutual Assent — Valid Considerations — Fraud and Deceit — Written and Verbal Contracts. Pages 1-8. CHAPTER II. REAL ESTATE LAW. Property in General — Land — Title to Land — Ownership of Land — Fee Simple — Estate Tail— Estates for Life — Emblements, etc. — Estates for Years — Estates at Will— Estate in Dower— Estate by Curtesy. Pages 9-16. CHAPTER III. THE ACQUIREMENT OF REAL ESTATE. Title by Possession — Accretion — Prescription — Estoppel — Public Grants — How to Get a Farm from Uncle Sam — By Purchase — By Pre-emption — Under the Home- stead Act — Soldiers' Homesteads — The Timber Culture Acts — Mining Claims — Land OflSce Fees— List of— Land Patent— Title by "Office Grant" — Sheriffs Sales— Tax Sales, etc.— Title by Private Grant (How to Buy a Farm)— Agree- ment to Sell Land. Pages 17-36. CHAPTER IV. OF DEEDS. Definition of Deed — Requisites of Deeds — Parties to Deeds — The Consideration — The Description — Covenants in Deeds — Execution of Deeds — Delivery — Record- ing Deeds — Deeds Poll and by Indenture — Forms of Deeds. Pages 37-45. CHAPTER V. OF EXAMINING TITLE. Searching the Records — Abstracts of Title — Suggestions as to what defects of title to look out for — Useful information for real estate dealers and others. Pages 4^53- TABLE OF CONTENTS. CHAPTER VI. OF MORTGAGES. Definition — Doctrines Concerning — Requisites of a Mortgage — Equitable Mort- gage — Form of Mortgage — Execution — Delivery and Recording — Power of Sale — Insurance Clause — Taxes — Interest — Legal Rates of Interest in the several States — Compound Interest— Usury — Assignment of Mortgages — Payment and Discharge — Foreclosure of Mortgages — Redemption, etc. Pages 54-66. CHAPTER VII. DEEDS or TRUST. Instruments sometimes used instead of Mortgages — Form of Trust Deeds — Pagei 67-68. CHAPTER VIII. FIXTURES. Things that go with the Farm — What is included in s sale of Lands— Rules for Determining What are Fixtures — Things held to be Fixtures— Buildings House- hold Furniture Not — Fences — Growing Crops — Nursery Trees Manure— Agri- cultural Machinery — Pumps, Sinks, etc. — Machinery in General— Farm Bells Gas Fixtures — Stones, Statues— Title Deeds — Heir Looms. Pages 69-76. CHAPTER IX. APPURTENANCES, ETC. These are interests or rights connected with real estate. Pages 77-78. CHAPTER X. FARM SURVEYING. Boundaries of a Farm — How to determine them— Monuments— Courses and Dis- tances — Quantity of Land — Parol Evidence — Streams, etc. — Artificial Ponds Lakes — The Sea — Highways — Surveys — Acquiescence — Meander Lines— Pages 79-87. CHAPTER XL EASEMENTS — WHAT ARE THEY? Light— Air— Water— Rights in— Ways— How Ways Axe Acquired— Ways of Necessity— Ways by Long Use— Ways by Purchase— How Ways May be Used —Obstruction of Ways— Termination of Ways— Lateral Support— Subjacent Sup- port—Water as a Support— Mining Leases— Side Support for Houses— Party Walls— Rights in Party Walls — Miscellaneous Easements. Pages 8&-104. CHAPTER XII. OF WATER RIGHTS AND DRAINAGE. Three Conditions in which Water Naturally Exists— Brief Statement of General Rule— Streams or Natural Water Courses— Rights in a Water Course— Use of Water for Running Mills— Acquirement of Mill Privileges— Use of Water for Irrigation— Artificial Water Courses— Public Drains, etc.— Rights in Surface Waters— Rights in Underground Waters— Right to Eaves Drip— The Right of Passage in Streams. Pages 105-111, tAJJLE OF CONTENTS. '* CHAPTER XIII. OF RIGHTS IN THE ROAD. What is a Highway — Hour Roads May be Used — Moving Buildings Along Roads — Travel with Teams, etc.— Which Way to Turn — Crossing a Road — Passing in the Highway — Horseback Riders — Foot Passengers — Rate of Speed- -Vehicles must be Roadworthy — Stopping by the Wayside — Leaving Horses Untied — Fractious Horses — Misconduct in the Road — Obstructions and Nuisances — Abate- ment of Nuisances in Highway — Rights of Adjacent Owners — How Roads are Made — By Legislative Authority — Right of Eminent Domain — Dedication of Streets — Repair and Maintenance of Highways — Liability for Failure to Repaii — Discontinuance of Highways. Pages Ii2-ia6. CHAPTER XIV. OF RIGHTS ON THE FARM. Right of Exclusive Possession — Implied License to Enter Lands — License Given by Law — Express License — Trespasses on Real Estate — How Committed — Trespasses by Servants — Trespasses by Domestic Animals — Trespasses by Dogs — Trespasses by Persons Hunting and Fishing — Who Owns Wild Game — Pos- session of Land. Pages 127-137, CHAPTER XV. CONCERNING WASTE. Important to Persons Leasing Land — No General Rule as to what Waste is — Cut- ting Down Trees, etc. — Manure Made on the Farm — Must be Used there by Tenant — Rule as to Composted Manures — Purpose of the Leasing Important — Permissive Waste — Failure to Repair Buildings — Injuries from Fires — Remedies for Waste. Pages 13S-141. CHAPTER XVX. FFNCE LAW. Common Law of the Subject — Statute Law of the Subject — Division Fences — Duties of Fence Viewers — Fence Laws Apply only to Improved Lands — When Division Fences not Necessary — Exterior or Road Fences — Railroad Fences — What is a Legal Fence? Pages 142-150. CHAPTER XVII. CATTLE IN THE HIGHWAY. A Question of Expediency — A Question of Right— Statutes on the Subject — Sum- maiy. Pages 151-155. CHAPTER XVIII. PARMER'S LIABILITY FOR THE ACTS OF HIS ANIMALS, General Rule as to Trespasses— Exceptions to the General Rule— Injuria by Vicious Animals — Owner Liable if Negligent — Contributory Negligence Excuses — Keeping Wild Anknals— Injuries by Dogs — Dog Laws — Dog Fights — Wh* Liable for Injuries. Pages 156-16' TABLE OP CONTENTS. CHAPTER XIX. LEGAL REMEDIES FOR IN;URIES BY ANIMALS. Remedies for Trespasses— Impounding Animals— Turning Trespassing Beasts into the Highway— Damages Done by Fowls, etc.— Remedy for Vicious Injuries— When Vicious Animals May be Killed. Pages 164-168. CHAPTER XX. NUISANCES ON THE FARM. What are Nuisances— Kinds of— Obstructing or Encroaching Upon a Highway- Dangerous Excavations, etc.— Old and Unsafe Structures— Oyerhanging Trees— Cess-pools, Privy Vaults, and Filthy Sewers— Discharge of Water— Ponds, Sloughs, Swamps, etc.— Diseased Cattle, etc — Careless Setting of Fires— Legal Remedies for Nuisances— Abatement of Nuisances — Injunctions— Actions for Damages. Pages 169-183. CHAPTER XXI. OF HIRING HELP. Fights and Liabilities of the Employer and the Employe— Importance of the Sub- ject—The Relation of Master and Servant — Who Owns a Minor's Wages- Apprentices — Contracts of Hiring — Implied Contracts. Pages 184-193. CHAPTER XXII. THE master's LIABILITY TO HIS SERVANTS. The Employer's Duties— Injuries by Fellow Servants— Injuries by Defective Machinery — Injuries by Defective Buildings — Risks not Incident to the Employ- ment Pages 194-198. CHAPTER XXIII. THE employer's LIABILITY FOR THE ACTS OF HIS EMPLOYERS. Statement of the Rule— Illustrations. Pages 199-201. CHAPTER XXIV. TAXATION. Definition of Taxes— Power to Tax Limited— "Is the Tax Valid?"— If Pud, Taxes Cannot be Recovered— Tax Deeds— Tax Sales— Land Sharks and Tax Titles. Pages 202-208. CHAPTER XXV. THE LAW OF SALES. Its Application to the Purchase and Sale of Farm Products — What is a Sale ? — The Thing Sold — Sales of Things not yet made, or owned by the Seller — Contracts of Sale — These Must Sometimes be in Writing — Memorandum of Sale — Forms — Goods, Wares, and Merchandise — Acceptance and Receipt — AVhen the Title to Property Sold Passes — Cases where Title Does not Pass — Cases where Title Does Pass — Illustrations— Conditions— W«wi»bSj a{ Goed»— Express Warranties TABLE OF CONIENTS. — General Warranties — Warranty of Horses — Written Warranties — Implied Warranties — Purchase of Spurious Seeds — Sale of Fruit Trees and other Nursery Stock — Remedies for Breach of Warranty — Rights and Remedies of the Sellei of Goods —Stoppage of Goods in Transitu — Rights and Remedies of the Buyer. Pages 209-225. CHAPTER XXVI. COMMON CARRIERS. Duties of Persons Engaged in Carrying Goods and Passengers — Who is a Common Carrier — Duty of » Carrier — Carrier of Goods Insures tlieir Safe Delivery — Limitation of the Rule — Special Contracts Limiting Carrier's Liability — When Carrier's Liability Begins — When Carrier's Liability Ceases — Duty of a Carrier of Persons — Rule of Liability for Carrier of Persons — Evidence of Negligence of Carrier — When Liability to Passenger Begins and Ceases— Carrier Must Carry all Impartially — What Excuses are Valid. Rules Adopted by Carriers. Pages 326-233. CHAPTER XXVII. LAWS CONCERNING FARM ANIMALS. As to Horses— 'Horse Breakers, their Rights and Duties — Horse Breakers' Lien Stallions — Veterinary Surgeons and Farriers — As to Cattle — Sale of Diseased Cattle — Brands and Ear Marks — As to Slieep— Diseases of Sheep — Taking Sheep on Shares— The Sale of Wool — > s to Bees— As to Hogs. Pages 232- 237- CHAPTER XXVIII. PASTURING ANIMALS. General Rule Applicable to the Case — The Agistor is not an Insurer — Duty of the Agistor — Has no Lien at Common Law — Statutory Lien — Trespasses by Animals Pastured — Agistor Cannot Use Animals Pastured. Pages 238-241, CHAPTER XXIX. HIRING OF ANIMALS. Rights and Duties of the Owner — The Owner Warrants Title — Abuse of Hired Animals — Rights and Duties of the Hirer — Borrowing Animals. Pages 241- 344. CHAPTER XXX. LANDLORD AND TENANT. Importance of the Subject — Leases of Land — The Duties of the Landlord — Land- lord Must Pay the Taxes — The Rule as to Repairs — Repairs of Farm Property — Repairs of Fences — The Tenant's Duties — What Alterations the Tenant May Make — Collecting Rent — Landlord's Title Cannot be Disputed by the Tenant — Tenant Must Guard the Property — What the Tenant May Remove — Termina- tipn of » Tenancy — The Rulb in Michigan. Pages 244-259. xii TABLE OF CONTENTS. CHAPTER XXXI. RAISING CROPS ON SHAKES. Farming on Shares is not Leasing— The Cropper on Shares U not a Laborer— The Duties of the Crop Grower— How the Crop Shall be Divided. Pages 350-253. CHAPTER XXXII. ARBITRATION AND AWARD. How to Proceed by Arbitration —Arbitration Bond— Duties of Arbitrators — ^The Award— Statutory Arbitration— The Method in Michigan. Pages 253-255. CHAPTER XXXIII. THE DESCENT OF REAL PROPERTY. The Common Law of Descent — Statutes of Descent — General Summary of— The Widow's Right of Dowar — Illegitimate Children — Advancements, etc. Pages 256-361. CHAPTER XXXIV. TH« DISTRIBUTION OF PERSONAL PROPERTY. Administration of Estates — Payment of Debts— Distribution of Residue— Is Administration Necessary ? Pages 261-264. CHAPTER XXXV. or WILLS. Ways of Disposing of Property at Death — Definition of a Will— Common Law as to Wills— Statutes on the Subject— Kinds of Wills— Who May Make a Will?— Avoiding a Will— Form and Requisites of Wills— Signing the Will— Witnessing the Will— Form of Attestation— Codicils— Revocation of Wills. Pages 264-271. CHAPTER XXXVI. EXECUTORS AND ADMINISTRATORS. Duties of Executors — Duties of Administrators — Inventory of Assets — Appraisers. Payment of Debts — Commissioners on Claims — Distribution of Assets— The Probate Court. Pages 272-277. PART II. CHAPTER I. NOTABIXS FCBIiIO — THEIB DUTIBS AND IiIABILITIBS. The Office of NoUry Public— How to Get the Office-Qualifying— Taking Affi- davits — The Jurat — Depositions — Administering the Oath — Acknowledgments — — Wife's Acknowledgment — Seals — Certificate of Acknowledgment — Rules of Conveyancing — Protesting Commercial Paper — Days of Grace — Bills of Ex- change — Place of Payment — Form of Protest — Shipping or Marine Protests — Protests as Evidence — Special Duties of Notaries. Pages 377-389^ TABLE OF CONTENTS. >"» CHAPTER II. BriiBS FOB DBUBBBATITB BODIBS. Sources of Parliamentary Law — The Organization of a Meeting — An Occasional or Mass Meeting — A Political Meeting — A Caucus or Primary Meeting — A Con- vention or Meeting of Delegates — A Town Meeting — A Permanent Society — Constitution, By-Laws, etc. — Procedure, Motions, Questions, etc. — Introduction of Business — Principal Motions — Subsidiary Motions — Incidental Motions — Privileged Motions — Order of Precedence of Motions — List of Motions arranged in the Order of their Precedence — Committees — Reports of Committees — Debate — Decorum in Debate — Punishment of Members — Voting, Methods of, etc. — What is a Quorum — Order of Business — Trial of Memben. Pages 289-308. CHAPTER III. OI.OSBABX OF IiAW TERUB. This Chi^er f>vM careful definitions and explanations of all the legal terms and phrases commonl^r met with. Pages 309-346. PART III. FORMS. The forms are arranged alphabetically by titles. Pages 374-461. PASE. General Index 463 Index to Forms 487 APPENDIX. CHAPTER I. General Rights and Duties of Employer and Employe... 4g5 CHAPTER II. Liens for the Protection of Mechanics and Laborers 499 CHAPTER IIL The Law of Garnishment 5°" CHAPTER IV. The Law as to Strikes, Boycotts, Etc 5" CHAPTER V. Arbitration in Labor Troubles 5i6 CHAPTER VI. Laws Favoring the Organization of Labor 519 CHAPTER VII. Special L^ws Relating to Labor 522 CHAPTER I. PRELIMINAR T CONSIDER A TIONS. I. Definition of Law. 6. State Statutes. a. Sources of Law. 7 The Common Law. 3. The Federal Constitution. 8. A General Principle. 4. Acts of Congress. 9. A Contract. 5. State Constitutions. 10. Requisites of a Contract 1 . Definition of Law. By the term law in this book is m«ant municipal or civil law, or " the law of the land," as distinguished from natural law, or the law of God. It is said to be " the rules by which society compels or restrains the action of its members;" or, " the rules of civil conduct prescribed by the supreme power in a. State ;" or, " the aggregate of those rules and principles of conduct which the governing power in a community recognizes as the rules and principles which it will enforce and sanction, and according to which it will regulate, limit and protect the conduct of its members." These definitions have been given by law writers. No one of them is perfect. It would be almost impos- sible to lay down in concise terms a faultless definition of law, Its complexity renders conciseness of definition difficult; yet the idea is not a difficult one to grasp. It may be written and formal, as constitutions, statutes, etc.,' or it may be unwritten, as the com- mon law of England and those long established customs which have acquired with us the force of positive law. Nor does it consist any more of those solemn expressions of legislative will called «• statutes," than it does of the constructions placed upon those statutes by the courts. A little reflection, however, will enable the reader to see that, viewed as a whole, the law is as near as we can perhaps express it, simply the properly constituted regulations of a country for the MANXJAL OP THE LAW. control of its people, and the protection of their property and their rights. 2. SoHrces of Law. There are five sources to which we must look for the laws which obtain in each of the American States. These arc: The United States Constitution, the Acts of Con- gress, the State Constitution, the Acts of the State Legislature, and the Common Law. It will be well to consider each briefly. 3. The Federal Constitution. This is the supreme law of the United States, the highest law of the land. It is a document, consisting of seven articles, which was framed by a convention of the representatives of the people which met in Philadelphia in 1787, and adopted the constitution on the 17th of September in that year. It went into force on the first Wednesday in March, 17S9. It vests certain powers in the Feder.1l Government, limits to a certain extent the powers of the various States, and declares certain rights and privileges to the people. Being the funda- mental law of the land, all other laws must conform to it, other- wise they are unconstitutional and void. It cannot be changed 01 amended except by consent of two-thirds of all the States. Fifteen amendments have thus been made to it at various times since its adoption. 4. Acts of Congress. The Federal Constitution gives Con- gress power to legislate on certain subjects. The control of most things which are of national importance — like the declaring of war, raising of armies, coining of money, establishing post-offices, granting patents to inventors, regulating commerce, etc., is given to Congress. Concerning these subjects thus placed under its care, and only these, it can enact such laws as seem to it wise. Its enactments must conform to the United States Constitution; but it is not necessary that they be in harmony with State laws, for they are superior to those. Congress consists of the Senate and House of Representatives. There are 86 Senators, and 325 Representatives. 6, State Constitutions. These are to the respective States what the Federal Constitution is to the United States, with this difference: The general government is one of delegated powers. It can do only what it is given authority to by the Federal Consti- tution. The State governments have more nearly unlimited powers. They can do everything which is not prohibited by their constitutions or by the Federal Constitution. The States PBEIiIMlNABY C0NSIDEKA.TI0N8. possess all the sovereign power, that is all the power by which the people are governed, except what they have given to the general government in the Federal Constitution. The people adopted the Federal Constitution for the purpose of creating and of giving certain powers to the general government. The State constitutions are adopted by the people of the various States for the purpose not only of establishing their own State governments but of placing certain checks and limits upon the power of their own legislatures. The Constitutions of the several States are not uniform, but are quite similar. They usually set forth the general frame-work of the State government, give the general qualification of the right of suffrage, divide and define the powers of government and the duties of State officials, and contain usually a bold declaration of rights for the protection of individuals and minorities. There are 38 States and hence 38 State Constitutions in force in this country. A State Constitution can only be amended by the properly expressed will of the people of the State. 6. State Statutes. These are the formal and solemn enact- ments of the different State Legislatures. They bear upon a very great number of subjects. They must conform to the Federal and State Constitutions, but need not necessarily be in harmony with every Federal Statute. Where they are not, they are so far simply superseded. For example: The Federal bankruptcy law, recently repealed, made uniform regulation on the subject of bankruptcy throughout the hind. The various States at the same time had laws for the benefit of insolvent debtors, etc., designed for the same purpose as the bankrupt law. The State Statutes were not rendered void by the Federal law, but were simply placed in abeyance. The repeal of that law has left them again in full force. Any subject or matter not touched upon by the laws so far enumerated, is regulated by what is called the com- mon law. 7. The Common Law. This is the great mass of unwritten laws, the '■'■leges non scripce" as they are called, or the general customs of the people which have been so long honored and observed as to have acquired the force of positive law. "The common law consists of all those principles, usages, and rules of action, applied to the government and security of persons and property, which do nat rest for their authority upon any express MANXJAL OF THE LAW, and positive declaration of the will of the Legislature." (i.) It is based for the most part upon the common law of England, which was transplanted to this country by the early colonists. « The common law of England consisted of those maxims of freedom, order, enterprise, and thrift, which had prevailed in the conduct of public affairs, the management of private business, the regulation of the domestic institutions, and the acquisition, control, and transfer of property from time immemorial. It was the out- growth of the habits of thought and action of the people, and was modified gradually and insensibly from time to time as those habits became modified, and as civilization advanced, and new inventions introduced new wants and conveniences, and new modes of business. Springing from the very nature of the people themselves, and developed in their own experience, it was obviously the body of laws best adapted to their needs, and as they took with them their nature, so also they would take with them these laws whenever they should transfer their domicile from one country to another." (3.) The common law of Louisiana is derived partially from that of Spain, and is modified somewhat by that of France, that State having been at one time a Spanish, and at another, a French colony. 8. A General Principle. Having thus briefly taken a gen- eral view of the subject and sources of the law, let us see if we cannot discover some general principle running through it which may aid us in our investigations. It is not meant by this to refer to any general law of morals, or principle of right or wrong, for the study of ethics is no part of our present purpose. What is needed is something, not of theoretical, but of practical application. It must be confessed that jurisprudence is not an exact science and that there is no one fundamental principle that will explain all its provisions; but the principle of the contract will be found to be of wonderfully wide application, and to underlie and deter- mine very many of our rights and obligations in our dealings with each other. 9. A Contract is an agreement between two or more persons; — " an agreement in which a party undertakes to do or not to do iii I Kent's Commentaries, 492. Coolej'i Constitutional Limitations, page 31, PEELIMESrABT 00NSIDEKATI0N8. a particulu' thing;" (i.) — "an agreement upon sufficient consider- ation to do or not to do a particular thing." (a.) The foundation rule in regard to contracts is that every man must fulfill every agreement he makes ; every person must keep his promises. There are a few exceptions to this, but still it is the general rule; and so important is it that the United States Consti- tution forbids the States from passing any law which will relieve any one from the obligation of performing the contracts he has made. (3.) It is not needful here to prove the justice of this rule. That is obvious. Our civilization is built upon it. If men were not obliged to live up to their agreements we could not carry on business, for nearly every business act is the fulfillment of some agreement. No one would be willing to sell goods, for there would be no way of collecting pay for them ; no one would be willing to do work, for he would have no valid claim for his wages. 10. Requisites of a Contract. Being of so much impor- tance it will be well to here consider this matter of contracts. There are seven requisites generally necessary to the validity of a contract. These are: (i.) Possibility. The thing to be done must be possible. Few people are foolish enough to depend on an impossible agreement; if they are they must generally bear the consequences of their folly. But it is not every sort of impossible contract that its maker is relieved from performing; for if the thing agreed to be done is not in its nature impossible, but is only impossible to him who agrees to do it, then the party so agreeing must pay for his foolishness in attempting what he could not do. For example: If A agrees to take B across the ocean in a day, B will have no remedy if he fails to do it; but if A agrees to furnish B 1,000 bushels of wheat at a certain time, and he finds it impossible to get the wheat, he must answer in damages for his failure. It is the duty of every one making a contract to foresee and provide against every circumstance which might render it impossible, and the other party has the right to rely upon his doing so. Sickness does not generally excuse one, nor lack of money ever. Even death does not always annul a contract, for unless it involves some personal skill, the executor must carry it out. fl.) Chief Justice Marshall in 4 Wheat., 197. (2.) 2 Blackstone's Commentaries, 446. (j.) U. S. Constitution, Art. i. Sec. 10. MANUAL OF THE LAW. (2.) Legality. A contract the law forbids is void. The law will not compel a man to do that which it prohibits him from doing. The thing agreed to be done must be legal and also the consideration or thing paid for it must be legal. There are not many contracts of this class. Bets, bribery, and gambling agree- ments, contracts to smuggle goods, etc., — in fact any contract which has for its purpose the carrying out of any object contrary to justice or common morality — these are void because they are regarded in law as hurtful to the public ; they are against public policy as it is termed. The law will not therefore enforce them, even though one party has performed his part or paid money. Usury is in most States illegal, — people are prevented from agree- ing to pay or take more than a certain rate of interest. This mat- ter is referred to further on. A contract in restraint of trade, like agreeing to give up one's trade, profession or business, is regarded as against public policy and is void. This applies only to a general surrender, an agreement to give up trade entirely. A contract not to carry on a trade in a certain locality is valid. It has been held in several cases that a contract to give up trade in a certain State of the United States is good. • Contracts made on Sunday are generally invalid. Contracts between citizens of one country and citizens of another are as valid and binding as any, unless the two countries come to war. War puts a stop to all commercial relations and renders all such contracts void. If part of a contract is illegal and part not, and it is capable of being divided, and the consideration can also be separated into corresponding parts, then the part which is legal is valid and can be enforced. This seldom occurs. (3.) Proper Parties. There must be cornpetent parties to every valid contract. A contract with a minor, or idiot, or drunken person, is not binding upon him. The minor can enforce his contract but it cannot be enforced against him, unless he rati- fies it on coming of age. Neglecting to then disaffirm it, or continuing to receive benefits from it, would generally amount to ratification. Contracts for necessaries, however, made by any of the above are binding upon them. These are for food, raiment, shelter, education, etc. A contract bv an infant, for instance, for men necessaries as are neeaful for him, taking into account ms * See Chase vs. Beal, 24 Mich., 492. PKELIMJINAET CONSIDERATIONS. station in life, etc., is binding upon him, and may be collected out of his estate. (4.) Mutual Assent. A proposition not assented to by both parties is not binding on either. Assent is implied by the word agreement. It is absolutely essential to the validity of a contract. Assent may be manifested in various ways. Anything which indicates it with certainty is sufficient. An offer may be with- drawn any time before it is accepted. If it is accepted by letter the contract is regarded as complete the moment the letter is put into the office, if properly directed. (5.) Valid Consideration. A promise which does not rest upon some substantial consideration cannot be enforced. Some- thing must be given, or done, or promised, in order to make the agreement binding. The value of the consideration is not gener- ally important. The law will not protect a man against a poor bargain, but it will not compel him to do that for which he has received absolutely nothing. A debt of honor, therefore, cannot be enforced. The law does not attempt to make men faithful or even just; it only attempts to prevent injury, and a man is not regarded as injured by the breaking of a promise for which he has paid nothing. A consideration may consist of money paid, or anything else given, or work done, or anything promised. In a marriage contract the woman's promise of marriage is the consid- eration for the man's, and vice versa. Considerations are said to be valuable when they have a money value, as labor, or lands, or chattels. They are g'ood when they consist of something which does not possess a money value, as love, affection, or filial duty. These latter are sufficient to support a promise in some cases. In deeds, and promissory notes, drafts, and bills of exchange, the consideration is ■presumed, that is, it is regarded as existing whether it does or not. The first of these being solemn written instruments, it is presumed that they would not be undertaken except upon consideration; the latter three being used and intended for circulating medium, to pass from hand to hand, would be deprived of much of their value for that purpose did the law allow the consideration for which they are given to be inquired into. So the consideration is in these cases presumed or implied. 8 MANUAL Of Xfifi LAW. (6.) Fraud and Deceit. A contract obtained by fraud is void as against the party using the fraud, but may be enforced by the innocent party if he sees fit. Fraud may consist in stating false- hoods or suppressing important facts. Mistake also sometimes has the same effect. (Too technical to be gone into further here.) (7.) Written Contracts. Certain contracts must be in writing in order to be binding. What is known as the Statute of frauds^ an English law enacted in the 29th year of the reign of Charles the Second', the provisions of which have been enacted in most of the States of the American Union, requires that certain contracts must be written and signed. These include contracts relating to the sale of real estate, leases for mere than a year, promises of executors and administrators to pay the debts of the estates for which they act out of their own funds, all promises to answer for the debts or defaults of another, all agreements not to be per- formed within a year from the time of their making, and contracts for the sale of goods amounting to over $50. All these must be in writing and signed by the party to be charged ; otherwise they cannot be enforced. In case of the sale of goods, the payment of earnest money or the acceptance of part of the goods does away with the necessity for a written contract. If the reader will keep in mind these elementary requisites in entering his various contract relations he may avoid trouble; and it is in the avoidance »f trouble that his legal knowledge will benefit him more than in remedying that which has come about CHAPTER II, REAL ESTATE. 1. Pioperty in General. 8. Estates for Life. 3. T^nd. 9. Emblements. 3- Real Estate Law. lo. Estates for Years. 4- Tide to Real Estate. II. Estates at WiU. s Ownership of Real Estate. 13. Estate in Dower, 6. Fee-Simple or Full Ownership. «3- Estate by Curtesy. 7- Estate TaiL 1. Property in General. Property consists of lands and chattels, or of Real Estate and Personal Property. The term property is broad, and may be said to include everything which is the subject of ownership. It is commonly divided into the two kinds above mentioned, and these are governed by quite distinct systems of jurisprudence. Real property, or, as it is usually called, real estate, includes lands, tenements, and hereditaments. These terms constantly recur in real estate law, and it should be borne in mind that land means any portion of the earth's surface, tenements means this and also anything else which may be leased or held by the same title that land is, and hereditaments includes both the above and everything else which may be inherited. All of these are, by statute, in some States included in the term land. Real estate may also be corporeal, as land and those tangible and substantial things attached to it and regarded as a part of it, — such as trees, buildings, and the like; or it may be incorporeal, as certain rights and profits arising out of or annexed to land. The former is always included in the familiar term land. 3. Land. This then is any soil, ground, or earth, as fields, meadows, pastures, woods, waters, marshes, furzes, heaths, etc., which constitute the surface of the earth. It extends upwards indefinitelj, and downwards to the centre of the earth. It therefore indudea all things growing up>on or affixed to it,- MANUAL OF THE LAW, trees, crops, fences, and houses, and everything else which has become so attached to it as to be what are caileA Jixtures ; (See chapter on Fixtures,) and also everything contained beneath the surface, as coal, ores, stone, and mines of iron, and other metals including silver and gold, (i.) It will be seen that land thus includes things which in them- selves are of a chattel nature. For example, trees growing or coal in the mine are real property, but when the trees are cut down or the coal is mined they become personal property or chat- tels. A fence post just purchased is a chattel, but when it is set in the ground it is regarded as part of the land. Some articles are considered as real property though they are never physically attached to the land, but are only constructively or theoretically annexed to it, — as the keys of a house, the deeds and other evidences of ownership, and some other similar articles called heir looms. 3. Real Estate Law. The law regulating this very important subject of real estate, has been of long and gradual growth. It was the first to receive the attention of the law-making power, and has always been the subject of the profoundest study of students of jurisprudence. Many of its incidents and provisions originated in the old feudal system of tenures, which was the system of holding real property that prevailed in England and in the countries of Western Europe during the middle ages. That system arose from the peculiar political condition of those coun- tries, by which it came about that real property was held by tenure, which was something like a lease, from the great lords and barons, who in turn held the land similarly from the King; and the King theoretically if not practically held the absolute and ultimate ownership of the land. The feudal system has long since become extinct, but many of the terms and expressions so often recurring in real estate law there took origin; and it is to that system that we must look for the explanation of many things' which otherwise seem very senseless and difficult. Reference will I (I.) At the common law mines of silver and gold did not belong to the owner of the surface. These were reserved by the Crown, the King being obliged to defend the realm, and to coin and furnish money necessary for that purpose and for the uses of trade and commerce, asserted the right to all mines of predons metals ■s an indispessible necessity. I BUckstone's Comm., Z94. A similar right has been claimfd by some of the States. In New York such mines are, by statute, reserred to Ac peoftle of the State. N. Y. Revised Statute, 6 Ed., VoL 1. 735. BEAL ESTATE. H therefore occasionally be made in the following pages to this old feudal system. Question is sometimes made as to why in our forms of deeds and other legal documents, old fashioned phraseology and odd terms which possess no popular meaning are still retained. The answer is that these expressions and words have, by their long use for their particular purposes, acquired a settled and definite mean- ing, the Courts have in most instances cleared up all obscurity surrounding them, and they are therefore safer and hence better than more modern expressions which might be more easily under- stood by the masses. The law is properly conservative, and inno- vations even in forms of expression are not favored. The real estate law of this country is contained very largely in the Statutes of the different States, which have gone into more of detail in this than in most other subjects. Among these statutes there is a general similarity, at least in the main features, and these main features will be in the following pages pointed out and exceptions to them, when such occur, referred to. 4. Title to Real Estate. It is a principle of our law, founded upon the old feudal maxims, that the Government — which with us takes the place of the Crown — is the true and only source of title to real estate. All valid individual claims, therefore, to land in the United States must be derived from the grant of our Federal or State governments, except certain grants from the Crown, or contained in Royal Charters, which became vested before the time of the American Revolution. A title to land from any other source would not be valid. The ordinary meaning of the word title is the one that is given to it in law. It is the means by which the owner has the posses- sion of his land, the thing that gives him the right to his interest there; and the expressions which we often hear, "good titles" "doubtful title" "clouded title," "bad title" etc., popularly express the legal significance which is attached to them. Title to land may be obtained in two ways, namely, by Descent, and by Purchase. By descent is meant where an heir takes property on the death of his ancestor, or wherever land is acquired by inheritance. By purchase is meant every other method by which title to land may be acquired. It will be seen thus that the word «« purchase " has in law a very much broader meaning than the one ordinarily given it It includes not only buying land but J 3 MANTJAIi OF THE LAW. acquiring it by gift, grant, prescription and every other way except inheritance. 6. Ownership of Real Estate. There is much variety in the kinds of interest or ownership which a person may possess in land. It may be full, absolute, and complete, or it may be partial or con- ditional. It may be for all time, or to end when a certain event happens. It may be for the lifetime of the owner, or some one else. It may not commence until a future time, it may be for a definite period or merely during the pleasure of some person. This idea of ownership, or the right which man has in real property, is expressed in law by the word estate. That word has, also, even in the law, a broader meaning than that, signifying anything of which property may consist, as real estate and per- gonal estate ; but its proper and technical meaning when used as it generally is in connection with a qualifying word is the degree, quantity, nature, and extent of interest which one has in real property. These different kinds of interests or ownership above referred to are indicated and distinguished as different kinds of estates, — as for example: Estate in Fee-Simple, Estate in Fee- tail, Estate in Dower, Estate by the Curtesy, Estate in Joint Ten- ancy, Estate in Common, Estate in Expectancy, Estate in Posses- sion, Estate in Remainder, Estate for Life, Estate for Years, Estate at Will, etc., etc. The incidents, conditions, and characteristics of these different estates, or at least of such of them as obtain to any extent in America, will be here considered. Not all are of equal import- ance. Some have been done away with by statute, as estate in tail, and some as estates at will have been by statute or decisions of Courts modified or turned into other estates. The first, because most important, is: 6. Fee-Simple or Full Ownership. In the United States almost all the land is held by this the fullest and most complete title or ownership. It is the largest possible estate which a man may have in land. It is where lands are given to a man and his heirs, absolutely without any end or limitation put to the estate. (i.) The wordyi* is of feudal origin, signifying a feud or land holden of a superior lord, in distinction from allodial lands, or those not so held. This title gives to the own«r the fullest power (l.) 2 Bl. Cem., io6. KEAL ESTATE. of doing with or disposing of his estate ia iiny way he may see fit — even to destroying it if he chooses, as for instance, in tearing down a house ; and on failing to dispose of it, it descends, upon his death, to such of his kindred, no matter how remote, as the law marks out as his heirs, (i.) It was formerly always necessary that the word » heirs " should occur in the grant or deed in order to create this estate. If land were granted not to John Smith and his heirs, but only to John Smith, no fee-simple would be created, but only an estate for life. The same would be true if the deed said John Smith " and his heir" or John Smith "or his heirs" or ^^ his assigns forever " or " his successors" or " his offspring ;" in all of these cases it ha« been held that only a life estate was created. (2.) A deed to "J. M. and his generation to endure so long as the waters of the Delaware run" was held to convey a life estate only. (3.) But in Vermont a lease for 1,000 years or so long as wood grows and water runs, was held to be a fee. (4.) The use of this word " heirs " is still necessary to create a fee- simple, except in those States where this rather arbitrary rule has been abolished by statute. It has been so abolished in New York, Michigan, and elsewhere, (5.) and in quite a number of the States there are statutes designed to remedy defects and mistakes in con- veyances, but it is doubtful whether such statutes do more good than harm. (6.) The wisdom of disturbing a well defined rule of conveyancing is very questionable. In wills it is not necessary to use the word " heirs " in order to create and give an estate in fee-simple. If the intention of the testator, or person making the will, is clearly expressed other- wise, it will be sufficient. (7.) But to prevent any question of this there are statutes in England, and in many of the States, whereby a devise or will of lands carries whatever estate the devisor or testator had in them, unless the same is restricted by the language of the will. (8.) (i.) I Washburn, Real Prop., 66. 9 Allen, 525. i2.) See cases cited in i Washburn Real Prop., 71. 3.) Foster vs. Joice, 3 Wash. C. C, 498. 4.) Arms vs. Burt, I Vermont, 303. 5.) Laws of Mich., 1881, page 227. 6.) The word " heirs " not necessary to create a fee in the following States : Alabama, Arkansas, Georgia, Illinois, Iowa, Kentucky, Mississippi, Missouri, New York, Tennessee, Texas, Virginia, Maryland, and Michigan. (7.) Jarman on Wills, page 229. (8.) There are such SUtutes in all the States mentioned in note (6) except Michigan. 14 MANUAL OP THE LAW. 7. Estate Tail, This is an estate of inheritance, like a fee- simple, except that instead of descending to the heirs generally, it goes only to the heirs of the grantee's body; that is, to his children and through them to his grandchildren, and so on as long as the line continues. It is an estate given to a man and the heirs of his body. He cannot, therefore, cut off their inherit- ance, nor sell or mortgage anything more than his interest in the land, which really only amounts to a life estate. This form . of estate was much favored in early days in England among the great landed families; but it was early found to be objection- able for many reasons. Children were largely independent of their parents, and they grew disobedient. Creditors could not enforce payment out of the lands of their debtors. Estates-tail are now practically abolished in England, and they are entirely so in this country. In most of the States they are by express constitutional or statutory provision turned into fees-simple. In others there are simple legal methods of accomplishing this. The genius of our people has always been strongly against primogeniture and entailment, and neither now exist here. 8. Estates for Life. These include all estates in land which last during the life of the owner or some other person, but which then terminate and do not descend to heirs. An estate tail becomes an estate for life when the possibility of issue is extinct Such estates are common in America; many arise by operation of law as estates in Dower, and by the Curtesy, and others arise by the act of the parties, as where lands are given to one to use dur- ing his life. Property is often left this way by will, as where a man leaves his lands to his wife to use during her life, and then to go to his children, etc. The important thing to remember about life estates is that the owner is entitled to what are called estovers and emblements, and that he must not commit waste. The term estovers is the legal expression for timber or wood necessary for use, as fuel and for repairing the house, barns, and fences of the farm. The tenant for life or owner of a life estate in lands is entitled to a reasonable quantity of this — if the land is capable of supplying it — for the use of himself and his family upon the premises. It has been held, also, to include a reasonable supply for the use of necessary servants employed upon the farm, BEAL ESTATE, 15 living in the same or in another house upon the premises, (i.) Only so much timber as is necessary for present use upon the farm can Be taken, and it must be cut in a proper and careful manner, and only that can be taken which is fit for the purpose Intended. (2.) Wood cannot be cut and sold, even though the money is used for the purchase of fuel which would otherwise come from the farm (3), nor' can clay be dug for the purpose of making bricks for sale. (4.) An owner of a life estate may sell or lease his interest, and all his rights in the land will pass to his grantee or tenant. (5.) 9. Emblements are the profits of the land which are the result of the tenant's industry. The term in a strict sense is applied to the right which a tenant has to take away certain crops after his tenancy or estate is terminated. It is a privilege which the law gives to those whose estates may be suddenly terminated for the purpose of encouraging husbandry. The crops are only such as are the growth of annual planting, as corn, wheat, peas beans, potatoes, and the like. These the owner of a life estate which has been suddenly terminated, by his own death or by the death of some one else, may, or his representative may, take away when they, are ripened; and may enter upon the land for the purpose of continuing their cultivation until the harvest time. The owner of a life estate or of an estate for years must not commit luaste. That is, he must not do or suffer to be done upon the premises anything which essentially injures the interests of whoever owns the inheritance or future estate. He must use the land as a prudent farmer would use it, keep the buildings in fair repair, and take away only the annual crops. For a full consideration of this subject of waste and incidentally of estovers and emblements, see Chapter XV. 10. Estates for Tears, These are interests in lands usually arising out of contracts called leases for the possession of land during a definite number of years. They are somewhat similar in character to estates for life, except where they expire at a definite (I.) Smith vs. Jewett, 40 N. H., 532. (2.) Simonson vs. Norton, 7 Bing., 640, (3.) Phillips vs. Allen, 7 Allen, 117. (4.) Livingston vs. Reynolds, 2 Hill, 1 57. (5.) Cook vs. Cook, II Gray, 123. 1 6 MANUAL OF THE LAW. and known time the right to emblements does not attach. See Landlord and Tenant, Chapter XXXI. 11. Estates at Will. These are interest* in land which last during the will or pleasure of the parties in interest. They are created sometimes by lease; sometimes by operation of law, as where the tenant holds over after the time specified in his lease has expired. Either party can terminate the estate, whether it is so specified in the lease or not. A tenant at will is entitled to estovers, and when the estate is terminated by the landlord, to emblements, (i.) The death of either party or any act done denoting a clear intention to determine the estate will generally end it. 12. Estate in Dower. Dower is the provision which the law makes for a widow out of the property of her husband, for her support and the nurture of her children. It is a life estate which the wife takes by law out of the husband's lands and tene- ments immediately upon his death. In Michigan the widow's dower consists of one-third of the husband's property, both real and personal. She is entitled to this in any event. If he wills her something in lieu of dower she need not so accept it unless she sees fit. 13. Estate by Curtesy. This is a life estate which the husband takes upon the death of the wife in the lands of whicli the wife was possessed during their coverture, providing they have had issue. Four things are essential to create this estate, viz.: Marriage, possession of real estate by the wife, birth of a child alive during the life of the wife, and the death of the wife. Curtesy has grown into practical disuse in England, and has been abolished or modified in many of the States. (I.) Sherbom vs. Jones, 20 Me., 70. CHAPTER III. THE ACQUIREMENT OF REAL ESTATE. I. Two Ways of Obtaining Title 9. Pre-emption. to Land. 10. The Homestead Act, 3. Title by Possession. 11. Soldiers' Homesteads. 3. By Accretion. 12. The Timber Culture Act. 4. Prescription. 13. Mining Claims. 5. Estoppel. 14. Fees of Land Offices. 6. Public Grant. 15. Title by Office Grant. 7. A Farm from Uncle Sam. 16. Title by Private Grant. 8. Purchase from the Government. Having in the preceding chapter considered somewhat the nature and incidents of real property, it will now be well to examine briefly some of the different methods by which such property can be acquired. This is a matter of importance, spec- ially to those contemplating an agricultural pursuit since they must possess themselves of land before they can follow their pro- fession. 1. The Two Ways of Obtaining Land. There are two ways of acquiring the title to land, namely, by Descent, — as where a man upon the death of his ancestor inherits his property as heir at law, — and by Purchase, which in a broad meaning given to that term by law writers, includes every other legal method except desceht. The first is of use only to those fortunate individuals who happen to be the heirs of landed ancestors not likely to make wills. See Chapter on Descent of Real Property. The second includes not only what is commonly meant by the term purchase, namely, buying land, but a dozen or more other ways, only a few of which it is necessary now in America to consider. Among these are possession and linjitation, accretion, prescription, and estoppel. 3 MANUAL OF THE LAW. 2. Title by Possession. The mere naked possession of land will under certain circumstances give absolute title to it in fee- simple. That is to say, the man who is in possession of land — who is living on it or exercising control over it — is regarded by the law as the owner of it, to the extent at least that no one can dispossess him without showing a tiile of a higher and better char- acter. This must be done within a certain time, for in all of the States there is what is called a statute of limitations, which for the peace and quiet of community does not allow an action to be brought or the title to land to be disturbed after the lapse of a certain number of years. If, therefore, one claiming title does not properly assert it within the time limited, he loses the right to do so, and thus the mere possession m.ay develop into perfect title, " Squatters " sometimes get title to land in this way, and their title when thus perfected is as good as any. But it must be remem- bered ,that in order to get title by possession merely, certain condi- tions must be complied with. The possession must be actual, open, notorious, and under a claim of right. It must have been continuous during the whole of the period prescribed by the statute of limitatioBS. and it must not have been under license or a lease for that would obviously defeat the title. The period fixed by the statute of limitations is not the same in all States. It is generally twenty years; in some States fifteen, and in a few only ten. The limitation will not apply as against one who is under any legal disability, as one who is insane or one who is under tw^enty-one years of age. If the land belongs to such a person it must be adversely held during the period prescribed by the statute after such disability is removed in order to get a title that will hold against him. Neither will the limitation apply as against a State or the United States, so that title to public lands can not be acquired by possession. Those who "squat" on the public domain therefore have to "move on" when the lands they occupy are sold by the government. It is to this class of people that the term " squatters " is most commonly applied. It will be seen that mere possession is rather a precarious means of acquiring title to lands; and it will become more so as lands become more valuable. In an early day when lands were very cheap speculators sometimes bought large tracts, portions of which they sometimes abandoned. Lumbermen often "let their lands go " after having taken off the timber. Such lands were gener- ACQUIREMENT OF REAL ESTAl B. ^9 ally sold by the State for non-payment of taxes, and the pur- chasers took possession, and by that possession got good title. Theoretically their tax deeds g^ave them good title; but practi- cally it has been found that tax deeds in most of the States are generally worthless, (see Chapter XXIV) hence possession as a means of getting title has been often resorted to in aid of the title given by tax deeds. 3. Accretion. Title to land may also be acquired by accre- tion, which is the gradual addition, through natural causes, of particles of soil to that already possessed by the owner. If one owns a farm bordering on a body of water which gradually deposits alluvion or sediment upon his shore, the additions so made belong to him even though they amount to many acres in the course of his life. Farms lying along many of the western streams have been in many cases largely added to as well as taken from by this means. Such gain or loss falls upon the owners of the farms. But the additions so made must be gradual and imper- ceptible or the rule will not apply. If they come by any sudden convulsion, as by the entire change in the course of a liver caused by a flood or the like, then the boundary line remains where it was before. As a general rule farms lying along fresh water streams are held to extend to the middle or thread of the channel. That is, the land under the water belongs to the owners of the adjacent farms. In such case if an island forms between the middle of the stream and the shore, it belongs to the farm on that shore. If an island forms directly in the middle of the stream) then it belongs equally to the two opposite owners. Questions of much nicety have arisen upon this point concerning the lands along the Mississippi river. They have been decided so far as possible according to the doctrine as stated above. 4. Prescription. Title to real estate may be acquired by prescription, w^hich is very much like possession and limitation, except that this term is strictly only used with reference to incor- poreal interests in land — like easements or rights of way, water privileges, etc. — and not to the land itself. If one has used and claimed to own an easement for a long period of time, such use of it under claim of right will give him title to it by prescription. The period of time is fixed by the statutes of the various States, and is the same as that fixed for all real estate claims. 20 MANUAL OF THE LAW. 6. Estoppel. Title by estoppel is rather too technical a sub- ject for full consideration in a popular treatise, and nothing more than a brief attempt to give a general idea of it will be under- taken here. Estoppel may be said to be a preclusion, in law, which prevents a man from asserting or denying a fact because of his previous acts or statements. It is the principle of law which will not allow a man to defeat his own acts or deny his own words to the injury or prejudice of another who may have been influenced thereby. An actual case will best illustrate the matter. Thus a Mr. Spiller once wished to purchase a certain lot of land in Vermont, and he went to a Mr. Scribner who owned the land adjoining and inquired where the boundary line ran. Mr. Scrib- ner, knowing that the inquiry was made with a view of purchas- ing, pointed out the boundary. Mr. Spiller bought the land and put a fence on the line as it had been pointed out. Afterwards Mr. Scribner sought to show that the boundary line as so established v/as not correct, and that Mr. Spiller had fenced in a strip of his land which he wanted back. But the court said that Mr. Scrib- ner must not go back on his word like that, and that he was estopped from asserting that the line pointed out by him was not the true line. So he lost some of his land by his careless or erroneous statements about the boundary, and Mr. Spiller got the title to it by estoppel. ( i.) This one case will illustrate, as well as a hundred that might be cited, the idea involved in estoppel. 6. Public Grant. By this is meant the method of creating title in an individual to lands belonging to the government. The United States Government has possessed, and does now possess, an enormous amount of lands. At the time of the adoption, of the Federal Constitution, all the territory within the present limits of the Union which had belonged to the British Government, became the property of the general government as successor to the British Crown. Large regions claimed by New York, Virginia, Con- necticut, and other States, including all that country l}'ing north of the Ohio river, formerly known as the "northwest territory," and other tracts, were ceded to the general government, and these, with the more recent acquisitions made by the purchase of Louisi- ana, Florida, and Alaska, have made up the vast quantity of lands which the government has been gradually disposing of. A great amount of these lands has been given to the States for educational (l.) Spiller V. Scribner, 36 Vennont, 245. ACQUIKEilENT OF SEAL ESXAXE. purposes; enormous grants have been made to various railroad com- panies to encourage the building of railways; very many have been sold at public sale; others by private entry as it is called, upon appli- cation made to the Registers of the land offices in the various dis- tricts where the lands lie; still others have been selected by the hold- ers of warrants from the government, given for meritorious service, or as bounties, etc., while an immense amount of them have been disposed of under the homestead, pre-emption, and tree-culture acts. As the last mentioned methods are specially important to those wishing a small portion of the public domain for agricultural purposes, it will be well to consider pretty fully the question of 7. How to Get a Farm from Uncle Sam. This kind hearted old fellow is very generous with his lands. He will sell them cheap, usually at $1.25 per acre, and if the purchaser doesn't want to pay " cash down," he will give him time and not charge any interest; or if the purchaser hasn't any money or doesn't want to spend any money, he will give him a farm outright, and a very good one, too. In addition to this he will give him another farm of 160 acres out on some of the prairies if he will plant and make grow a certain number of trees upon it. What greater generosity could be wished? Let us see how to take advantage of it: 8. By Purchase from the Government. The lands com- prising the public domain are classed, by the laws relating to their disposal, under several heads as follows: Agricultural lands, mineral lands, saline lands, desert lands and co.; tain the usual formal ^arts^ which are as follows : i . Thff ii ^rnises, which embraces the names of the parties and usually their residences, the consideration for which the deed is given, and a careful description of the prop- erty granted. 2. The habendum, which defines the nature and extent of the estate which the grantee is to take. 3. The redendum, which is used when something is to be reserved to the grantor out of the estate granted, as where land is conveyed subject to mortgage, or a right of way across the land sold is reserved, etc. 4. The condi- tion, when any is to be imjjosed upon the purchaser, as for instance that he shall not put a slaughter house, or tannery, or bone yard, 01 sell intoxicating liquors, upon the premises. 5. The covenants, when such are agreed upon, which in the ordinary warranty deed are three, viz, : that the grantor is well seized of the premises in fee-simple ; that the premises are free from all incumbrances, and that he will forever warrant and defend the same, 6, The conclu- sion, which mentions the execution of the instrument, its date, and contains the signatures of the grantors, their seals, the signatures of the witnesses, and the certificate of the acknowledgment of the deed. No particular form of words or expressions are essential in deeds, only that apt words for the conveyance of title should be used, and the intention of the parties should be clear and distinct (l.) ■ Sharswood Blackitone, 294. OF DKEDS. 39 At the close of this volume the various forms of deeds in common use are given, and it is perhaps sufficient to say that one of these established forms should be used. They may sound rather odd and quaint, and there may seem to be some useless things in them, but after all it is unsafe to depart from old established forms and phrases that have been the product of many years, even centuries, of use, have survived by reason of their natural fitness, and have so many times passed before the courts that their meaning is clearly anil certainly known. One does not want to try experiments in literary style or composition at the risk of losing his money or his farm. Even in those few States ( i ) that have by statute provided very simple forms of deeds it is safer to follow the old stand-bys. 3. Parties to Deeds. These are the person selling who is called the grantor, and the person buying called the grantee. The grantor should be of full age (21 or over) and of sound mind, otherwise his deed will not be binding as against him. Not so with -the grantee. A deed to him, even though he be a minor or an insane person, will be good as against the grantor. If the grantor be a married man his wife should always join in his deed. Her name should appear following his at the beginning of the deed, she should sign and acknowledge the deed, and the certificate of acknowledgment should state that she is the wife of the grantor. It is necessary that the wife should join in her husband's deed in order to cut off her right of dower in his property. This right of dower is an inchoate interest which springs into existence upon the death of the husband. It is the right to the use of one-third of the husband's real estate during the time which the wife survives the husband. In the absence of a special statute enabling the wife to bar her dower by separate deed, she can only do so by joining in her husband's deed. Some of the States have such statutes. (2.) In some of the States the "homestead laws" have had the effect of making it necessary for the wife to join in her husband's deed, not merely to convey her dower, but to make the husband's (1.) The Legislature of Michigan has enacted that a deed worded u follows: "A. B. conveys and warrants to C. D. the following premises," — shall, if duly signed, sealed, and acknowledged by the grantor, operate the same as a full war- ranty deed. It is also provided that it is not necessary to use the word " heirs " to create an estate of inheritance. There is a similar provision concerning mortgage*. L*ws Mich., 1881, page 127. The expediency of such legislation is questioned. (a.) Sec hwi Michigaa, HoweU's Statutes, {;745. 4® MANUAL OF THE LAW. deed effectual to pass the property to the grantee. These home- stead laws, so-called, of course only affect the family home. The husband's deed of any other land need not be joined in by the wife except for the purpose of releasing her dower therein. If the wife does not join in the husband's deed the property conveyed passes to the grantee subject to the wife's dower. If she survives her husband she can, immediately upon his death, institute proceed- ings to have her third of the land, so conveyed, set off to her own use during the remainder of her life. If the grantor of the deed is a married woman, it is now not generally necessary for the husband to join in the deed of her own property. The " married women's acts," as they are called, which have been passed in moat of the States, enable married women to deal with their own property, that which they had before they were married and that which they subsequently acquire, just the same as though they were unmarried. At the old common law this could not be done, as the husband had an interest in the wife's real estate, and possessed the full ownership of all her personal property which he reduced to his possession. The deed of a corporation should contain the legal name of the corporation at the beginning, and should he signed by its trustees, president or other officer or agent appointed for that purpose, or by its duly authorized attorney, and should bear the corporate seal. Where a deed is made by an agent or attorney for another per- son, the capacity in which such agent or attorney acts should appear upon the instrument, and the authority necessary to enable such agent or attorney to execute the instrument should be given with the same formalities required in the execution of the deed itself. That is to say, there must be a power of attorney duly signed, sealed, witnessed, acknowledged, delivered, and recorded. i. The Consideration. It is the custom to recite in the deed the consideration upon which it is given, usually the price paid for the land. It is not absolutely essential, however, that the exact amount paid be inserted in the deed, or that any consideration be expressed. An instrument under seal proves its own consideration, so that a deed is good even though there be no actual considera- tion, as is the case with a deed of gift. See page 7. If the price agreed upon is inserted as the consideration in the deed, and the receipt thereof is acknowledged, the grantor is not bound by such a receipt; for if as a matter of fact the money. was OF DEEDS. . 41 not paid at l.'.e time of delivery of the deed, the grantor may sue for it notwithstanding his receipt. The fact, however, that the money was not paid would not invalidate the deed. Only tl-.at part of the deed which is a receipt would be open to denial. 6. The Description. The description of the land conveyed by the deed should be as minute and accurate as it is possible to make it. It is well in giving the description to refer to previous deeds by which the grantor obtained title. A deed thus referred to becomes for most purposes a part of the deed referring. If the description in previous deeds is not entirely correct, it may be referred to and a correct description also given. If the land is described by metes and bounds, and said to contain a given num- ber of acres, the number of acres actually contained within the boundaries as given, will govern even though they are less or more than the number mentioned in the deed. So, too, if the land is described as a certain quarter section containing 160 acres, the num- ber of acres actually found within the quarter section according to the government survey, will be the amount of land conveyed, no matter whether it contain 170 acres or only 130 acres. While per- fect accuracy in the description is very desirable, an imperfect or loose description will not invalidate the deed if the intention of the parties can be arrived at; and parol or verbal and extrinsic evidence upon this point is generally admissible. 6. COTenantS in Deeds. If a deed contains only the clauses necessary to effect a transfer of the title to the land, it amounts to only a quit-claim deed. It conveys the land, or all the right, title, and interest which the grantor has in the land; but it does nothing more than this. It does not warrant the title to the land, nor enable the purchaser to recover anything from the seller in case the title proves defective or worthless, and he losts the land. Hence purchasers always desire a warranty deed if they can get it. A warranty deed is one that contains, in addition to the clauses necessary to work a transfer of title, certain personal undertakings on the part of the grantor called covenants. These covenants are generally as follows: The grantor agrees for himself, his heirs, administrators, and assigns, that at the time of ensealing the deed he is lawfully seized of the premises about to be conveyed in fee- simple; that the premises are free from all incumbrances whatever; that he, the grantor, has good right to sell the same to the grantee, and that he will and his heirs, executors and administrators shall MANUAL OF T-HE LAW. warrant and defend the same to the grantee, his heirs and assigns forever, against the lawful claims of all persons. The effect of these covenants is to give the grantee or any person claiming under or through him the right to fall back on the grantor for damages if the title warranted by him proves worthless and the land is lost. The covenant against incumbrances and the covenant that the grantor is- well seized of the premises are broken as soon as the deed is given if at all. The grantee could not recover anything more than nominal damages, however, until he had suffered some actual damage. If the grantee, therefore, in a warranty deed, were to discover an outstanding mortgage or other valid claim against the property, his proper course would be to either pay the mortgage or other claim, in which case he could recover the amount so paid from the grantor, or else let the mortgage be fore- closed, or the other claim mature into a paramount title, and he be evicted or put off the land, in which case he could recover possibly the purchase money he had paid with interest, or the value of the land with the improvements he had put on and lost. The question of the precise measure of damages in such cases, however, is not very uniformly settled, differing somewhat in different States. The covenant to warrant and defend has the effect of extending the personal liability of the grantor into the future. He agrees for himself and his heirs to defend the title conveyed against all law- ful claims; and this agreement is made not only to the grantee but to his heirs and assigns. The covenant " runs ivith the land^'' as it is termed, and it binds the grantor and his representatives to all subsequent holders of the land. 7. Execution of Deeds. This includes the sealing, signing, witnessing, and acknowledgment. At the old common law the sealing was the most important thing in the execution of a deed. When the seal was properly affixed the instrument was regarded as done, that is, it had become a deed. The matter of sealing was then of much greater importance than it is now, because there were no public systems of recording deeds, and the instruments themselve'i had to be preserved as evidence of title, and proved in case of controversy. In the eastern States the formality of seal- ing is still required, and nothing short of a paper or wax seal wafered on will satisfy the law; but in the western and southern States generally a simple scroll of the pen or the letters L. S. are •ufficient. It ii even enacted in some of the States that no deed OF DEEDS. 43 shall be deemed invalid for want of a seal or scroll. The blank forms of deeds kept for sale by the newsdealers have in the west- ern States a printed seal upon them, which is ample to fulfill the requirements of the law. There should be a seal opposite the name of each person sign- ing the deed; if, however, there is but one seal and several parties signing, all of whom should also have sealed, this one seal will be tSken as the seal of each, and the deed will be good. The deed should be witnessed in the manner required by the local statute. Generally, two witnesses are required. They should sign their names as such opposite the signatures of the grantors in the manner shown in the forms. The object of witnessing is to have some person whose attention has been called to the signing, who may be called upon to prove the grantor's signature if it ever becomes necessary to do so. Any person, therefore, of sufficient age and capacity to understand the nature of the act, can be a competent witness. It is not good form, however, to have a per- son who has an interest in the land conveyed, either present or future, witness the deed. A wife should not witness the husband's signature, nor should the husband the wife's. But these would not be serious errors. Witnesses are not i-equired in all of the States, and some require but one. The acknowledgment should be made before the proper official; usually the statute designates any magistrate, justice or notary pub- lic, who affixes a certificate to the deed that the party executing it personally appeared before him and acknowledged the same to be his free act and deed. In some States if the wife joins with her husband in a deed the officer taking the acknowledgment is required to examine the wife separately and apart from her hus- band and ascertain if she has signed the deed of her own accord, and without fear or compulsion from any one; and he must attach to the instrument his certificate to that effisct. This is a relic of bar- barism which should be and happily is being abolished. 8. Delivery. After the deed has been entirely completed it must be delivered to the grantee or his agent. It has no effect until it is delivered, and it amounts, until delivery, to no more than so much blank paper. If a man makes a deed and has it already for delivery, and intends to deliver it at the first opportunity, but suddenly dies before doing so, it is of no effect. Nor would it be even though he had received the pay for the land intended to be 44 MANUAL OF THE LAW, conveyed. If the deed is lost or stolen it become* void. So, like- wise, if it is taken from the grantor by force or fraud, compulsion or deceit. The force, however, must be of a physical nature, as moral force might not invalidate the delivery, as, for example, I have a large claim against a man and I say to him " I must be paid at once." He says " I can't pay — I have no money." I say, " You have property ; if you will give me a deed of a certain farm which you own I will call the matter square; if you will not I shall sue you at once and put you to much iv'imble," Thus forced he gives me the deed; and it is a valid deed, though obtained by a sort of force. A deed may be delivered in escrow, as it is called, that is, given to a third party to be turned over to the grantee when certain con- ditions have been fulfilled, or certain acts have been performed or certain time has transpired. When the condition, whatever it may be, has been performed, the deed belongs to the grantee, and it takes effect upon his receiving it the s,"ime as though the grantor had delivered it to him personally. 9. Recording Deeds. In all of ths States there are systems for making a public record of all instruments affecting the title of real estate, established and maintained for the purpose of giving certainty and notoriety to title. Any dee>J which has been duly and properly executed is admitted to record. It is the grantee's business to see to the recording, and he should see to it as soon as he receives his deed. If he does not do this, he may lose his land in consequence; for an unrecorded deed is generally not good as against a subsequent purchaser in good faith. To explain: If a knave deeds me his farm and I do not put the deed on record, nor do not take immediate possession of the land, and a little while afterwards he deeds it to another who, finding it still standing of record in his name buys in good faith, my deed would probably not be good as against his. True, I would have a claim against the knave for the money I had paid him, or I might put him in limbo for his fraud ; but in all probability my claim would be worthless, and if I attempted to proceed against him criminally, I would probably find that he had run away. So, too, if A deeds me his farm and I put the deed on record at lo o'clock, and B, who is a creditor of A's, levies an attachment on the same same property which he pre- sents for record at ten minutes before ten, I would probably lose the land. And the same is true regarding mortgages. If I loan A OF DEEDS. 45 $1,000 on his farm and neglect to record the mortgage, and B afterwards loans $2,000 on the same farm and puts his mortgage on record ahead of mine, B would probably have the first claim on the land, and if the land were not valuable enough to satisfy both mortgages, I might lose my money. But a deed that is not recorded is always good as against the grantor and his heirs. This would be true, also, were the deed not witnessed, or were it incomplete in other technical requirementj. And it may be stated, as a general rule, that a deed which has not been recorded is just as good as one which has, against any one who knows of its execution and delivery. Even if one takes the land by subsequent deed and pays full value for it, it will give him no title if he had notice or knowledge of the unrecorded deed. As to what amounts to notice the courts, have generally held that pos- session on the part of the grantee, if open and notorious, will give the world notice of his rights there. But this is not always the case, and it is not safe to rely upon it. 10. Deeds Poll and by Indenture. There are two general forms of deeds which should be explained. A deed poll is the deed of one party only. It is worded in this form : " I, John Doe, of Dearborn, do hereby grant, bargain, and sell to Richard Roe, etc." This is the form in most common use in the New England States. In the other States the general form of deed is an indent- ure, so-called, which is a deed between two or more parties, com- mencing in the manner following: "This indenture, made this day of , between John Doe, of Dearborn, party of the first part, and Richard Roe, of the same place, party of the second part, witnesseth as follows, etc." This difference is one only of form. In a deed by indenture the wife of the grantor is made a party to the deed ; she is made one of the grantors if she wishes to release her dower. In a deed poll the wife is not men- tioned as a grantor, but in the closing clause of the deed her name is mentioned, and it is stated that she signs the deed in token of her relinquishment or release of dower. The forms will illustrate this. Enough forms are given to show the difTerences in deeds in use in different portions of the country, and also to satisfy the various wants of parties in ordinary transactions. If no form suiting the exact requirements of any given transaction can be found the one nearest that desired can be readily altered to suit the emergency. See index of forms. CHAPTER V. OF EXAMINING TITLK, I, General outline of the subject In the preceding chapter the statement was made that every person should, before accepting or giving a deed, be certain that the title to the land in question is straight and clear; or, if in any way defective, just what the defects are. The importance of this to the grantor rests in the fact that if he convey by the ordinary warranty deed he becomes personally liable to the grantee, and lo all persons claiming under the grantee, if the title is not good. If any valid claim is outstanding against the property the grantee may fall back upon the grantor for all the damage that he is put to because of it. If the grantor is dead, the grantee, or those claiming under him, may proceed against the grantor's estate. To the grantee the importance of this matter rests in the fact that if the title prove defective, and the grantor at the time is pecuniarily irresponsible, he must bear the loss himself. Even il the grantor be responsible he may have removed from the State, or gone through bankruptcy, or other circumstances may make it difficult or impossible to collect anything from him. All things considered, it is more important for the grantee than for the grantor to be positive that the title is good. The examination of a title in order to be valuable is a task requiring not only a great deal of painstaking care and laborious diligence, but a thorough knowledge of real estate law. It is a labor that the novice should not, as a rule, attempt. Better will it be to employ the best lawyer of your acquaintance than to take your chances on an uncertain title. I know that this is a matter that has been much disregarded by purchasers, especially in the western States, where real estate has been cheap, the source of title OF EXAMINING TITLE. near, and the conveyances affecting any particular piece of property generally few and simple. People have quite naturally come to believe that anybody of ordinary intelligence could determine with certainty the validity of a title. Not infrequently, however, have men lost much of their hard earned savings by this over-confi- dence, and the fact that sharpers have long successfully taken advantage of it, is sufficient indication of the correctness of the above statement that the task of examining a title is one that should be confided only to capable and experienced hands. The work of looking up a title consists, in the first place, of examining the records of the various instruments affecting the ownership of the land in question, — the deeds from the govern- ment patent down; and the mortgages, attachments, liens, tax claims, notices lis pendens, etc., etc., if any there are, — to see that the same are all properly discharged. In the second place the work involves a looking into many extraneous facts — which do not appear of record — for, as we shall presently see, a title may appear perfectly clear of record, which in truth is very defective or altogether void. The first part of the work is greatly facilitated by what is called an abstract of title. This is a brief memorandum, taken from the records, showing the various instruments on record affecting the title to the land in question. Abstracts of title are generally prepared by the recording officers, or by other persons familiar with the records who make it a business to do such work. They are not official documents, and they have no weight in deter- mining a title. If they bear a certificate, as many of them do, that the title is clear, such statement is really only the opinion of the person making it, and has no legal weight. The abstract is a valuable and almost indispensable help in the investigation, but it is by no means conclusive evidence of what it discloses. The following will illustrate the form of an ABSTRACT OF TITLK to the northwest quarter of section ten, town four south, of range six east, Indiana. United States 1 Patent. Dated January 4, 1838; re- to \ corded January 15, 1838, in Liber William Smith. ) 4 of Deeds, page 769. William Smith 1 Warranty Deed. Dated June 5, 1840; to > recorded June 6, 1840, in Liber 10 Jacob Browning. \ of Deeds, page 769. Duly executed.. ♦8 MANUAL OF THE LAW. Jacob Browning and Susan Browning, his wife, to David Wilkins. David Wilkins to Paul Jones, Paul Jones By Herbert Harvey, His attorney in fact, to John Brown. Paul Jones to Hiram Hamlin. "^ Warranty Deed. Dated January 15, 1845, recorded January 20, 1845, in Liber 15 of Deeds, page 69. Duly executed. *| Quit-claim Deed. Dated December I 21, 1865; recorded Dec. 30, 1865, in Liber 75 of Deeds on page 78. Executed in the State of Kentucky and duly certified. Warranty Deed. Dated February 10, 1875; recorded February 15, 1875, in Liber 197 of Deeds, on page 42. Duly executed. Hiram Hamlin to Paul Jones. [Mortgage, $1,000. Dated June 7, 1867; recorded same day in Liber 49 of mortgages on page 88. Satisfaction of above mortgage. Dat- ed June 7, 1869; recorded June 9, 1S69, in Liber 7 of Discharges, page 77. I hereby certify that the above are all of the instruments affect- ing the land in the caption which are on record in my office. The title seems to be perfect m John Brown. PETER PORTER, Register of Deeds. The above abstract of title is much shorter and simpler than the majority of them are. It is so straight forward, and shows with such apparent certainty that the title in John Brown is clear and perfect, that probably most purchasers would regard it as conclusive, and would accept a deed from John Brown, and pay him the money on it without the least suspicion of risk. Yet it is per- fectly possible that such an abstract, and the record which it refers to, should exist, while John Brow^n's title is defective or even void. Further investigations will be necessary in order to insure entire certainty. What these investigations shall be depends upon the circumstances of each case; but taking the title, of which the above is an abstract, a careful investigation would involve some- thing like the following: Inquiries should be made from every available source concerning the several grantors mentioned, with a view of learning their connection with the land, and of establishing beyond doubt their identity with the several grantees of the same OF EXAMINING TITLE. 49 name. For it may be stated as a rule to which there is no exception that the record never identifies the parties. Outside inquiry is abso- lutely essential for this. There are many persons of the same name, and it is very easy for one man to assume another's name. For instance, in the above case, the land was entered by William Smith, who received the government patent therefor. If anj other William Smith than the one to whom the government con- veyed should give a deed of it, or if any one should falsely assume that name and so deed it, and the deed should be duly put on rec- ord, it would of course pass no title to the land. The deed or patent from the government seems to be all straight, and such an instrument may generally be assumed to be correct. Yet it is possible for a government patent to be void. The gov- ernment may have previously deeded the land to some one else and this patent may have been issued through mistake. If so, it would convey no title. It will be observed that in several of the deeds the wife of the grantor, if he had one, did not join in the execution of the instru- ment. Inquiry should be made as to whether William Smith and David Wilkins were married, and if so, whether their wives were living at the time the deeds were made. If they were, it is possi- ble that there is a dower interest outstanding against the land. The statute of limitations might not run as against a dower interest until twenty years after the death of the husband. It is a very long lived right, and it needs to be carefully looked out for in examining title. And it should be remembered that where a dower interest is released, as it appears to be in the deed from Browning, it is essential that the execution and acknowledgment of the deed by the wife are in due form, as required by the statute. A married woman has, at common law, no general power to sell her contingent right of dower during her marriage. It is only by virtue of some statute that she can do this, and the statute must be strictly followed or the deed may be void. See page 39. The deeds of Smith, Browning, and Jones are referred to in the abstract as " warranty deeds," but it is not safe to depend entirely on that statement. They should be carefully examined all through to see just what covenants they contain. If either contains only a covenant against the grantor's own acts (as is the case with some warranty deeds so-called), it amounts really to but little more than a quit-claim deed. 50 MANUAL OF THE LAW. The deed from David Wallace is a quit-claim deed. Although such a deed is, as we have seen, just as effectual to pass title, it gives the grantee no remedy against the grantor in case the title falls. If the grantor has perfect title it is all right, but if he has not, it may be all wrong. The fact of there being a quit-claim deed is at least a suspicious circumstance, and should put the inves- tigator on his guard. If the grantor has no doubt of the validity of his title he will generally not hesitate to give the ordinary war- ranty deed, and if the purchaser is paying full value for the land he will insist on receiving one. If a quit-claim deed is taken, there- fore, it usually indicates that either the grantor is afraid of his title or the purchaser is buying for less than full value and taking his chances. The Wilkins deed, it will be observed, was executed in the State of Kentucky. Care must be taken to see that the provisions for the recording of such deeds have been complied with. The laws of the State where the land lies govern the methods and formali- ties of its transfer, and it is possible that a deed may be perfectly good in the State where it is made and still may be defective in the State where the land it attempts to convey lies. In each of the States there are statutory provisions for the authentication and recording of deeds, etc., executed in other States or foreign countries. These provisions must be substantially complied with. The deed from Paul Jones is executed by his attorney in fact. The question arises, was the attorney duly authorized? It will be remembered (see page 40) that a power of attorney, in order to enable the attorney to legally sell and deed a certain piece of land, must be executed with all the formalities required for the execution of the deed itself. It must be signed, sealed, witnessed, acknowl- edged, delivered, and recorded. Its terms must be such as to authorize the execution of this particular deed. It must be in force at the time of making the deed, and care must be taken to see that it has not been terminated. This may be done by an instru- ment for the purpose, called a revocation of power of attorney, and such an instrument may be found to have been duly executed and recorded. If not so revoked, other things may have worked b revocation, — as, for instance, the death of Jones, or his bank- ruptcy or insanity. The abstract shows but one mortgage upon the land, which appears to be fully paid and discharged, and the Register certifies OF EXAMINING TITLE. 5« that there are no others. But it may be that there are mortgages which are not recorded, which still may be valid claims against the land. If any of the deeds refer to any unrecorded mortgages the purchaser would be bound by the information or notice so given; for it is a general rule that a man is regarded as duly notified of whatever appears in the deeds or other instruments which consti- tute his claim of title. And it makes no difference whether or not he ever read the documents, or that he did not actually know their contents. If, therefore, any of the deeds in the foregoing abstract refers to an unrecorded mortgage or any other valid outstanding claim against the land, the purchaser will probably take the prop- erty subject to such claim. All the deeds likewise need to be carefully looked through to see that each of them contains the words necessary to pass full title. As we have seen (page 13), it is necessary that the words " and his heirs " should follow the name of the grantee, in order to create an estate in fee-simple. If land is conveyed to "John Doe and his heirs," he will take a complete estate of inheritance or the full ownership of the land; if it is conveyed to "John Doe" simply, the word " heirs " not being used, he will take an estate for life merely, and at his death the land will revert to the grantor or his heirs. This is the old common law rule, and it is still in force in most of the States, (i.) If any of the deeds do not con- tain this word " heirs " it is possible that the property may, on the death of some old party, vest at once in a stranger who will claim his rights. The record of all the deeds in the abstract needs to be examined to see that the execution clause, and particularly the acknowledg- ment and attestation of each, complies with the recording laws in force at the time each was made. These recording laws provide that deeds which are executed in accordance with the statute may be recorded. If a deed, not executed in accordance with the statute be recorded, such record cannot be used as evidence. The deeds themselves may or may not be valid, but the record is a mere nullity. If any be found defective in this regard the original docu- ments should be obtained and either properly corrected or new ones made. The examination of a title upon this single point as to whether (i.) Michigan »nd some other Sutes have changed this by itatute. Laws Mish- igan, 18B1, page 227. 53 MANUAL OP THE LAW. the deeds conform to the laws governing their execution and rec- ord is one requiring much labor and oftentimes research. The laws bearing- upon the point are not uniform in all the States, and in each State they have been gradually changed from time to time. For example, in Michigan these laws have been changed in some particular every few years since I'jS'J. Up to September i, 1838, two witnesses were required; from that time till May 20, 1839, ^° witnesses were required; since then two witnesses have been required. The acknowledgment must be before a judge of a court of record, justice of the peace, or notary public; but from time to time since 1850, other officials have been empowered to take acknowledgments. Married women could only convey their lands prior to 1855 by the joint deed of themselves and husbands. Since that time they could convey their own property as if they were unmarried. See page 40. Prior to 1877, a wife could bar her dower only by joining in the deed of her husband; since that time she could do so by separate deed to one who holds the husband's title, provided the intent to bar dower is expressed in such deed. Curtesy was abolished in Michigan in 1855, prior to which time the husband had to join in the wife's deed to make it effectual. The wife's acknowledgment prior to 1840 had to be that she executed the deed freely and without fear or compulsion from her husband, and the acknowledging officer had to examine the wife separate and apart from her husband. From 1840 to 1855 she had to acknowledge that she executed the deed freely and with- out fear or compulsion from a'ly one. From 1855 down, the acknowledgment to conveyances of her own property was to be taken as if she were unmarried. From 1875 down, her acknowl- edgment to all instruments was to be taken as if she were unmar- ried. This enumeration of statutory provisions and changes might be much longer continued, but the foregoing is sufficient to show the extent of information and research necessary to pass with cer- tainty upon the validity of the execution of a series of deeds con- stituting a chain of title running over a number of years. No tax claims, liens, notices lis pendens, or attachments are referred to in the foregoing sample abstract; but these should nevertheless be looked to, as the abstractor may not have thor- oughly done so. A tax history or statement from the tax coUec- Of EXAMINING TITLE. 53 tor's office showing whether or not all taxes assessed against the land have been paid should be procured. It is customary for the grantor to furnish this. In addition to all that has so far been said, it is possible that there may be other valid claims against the property, and claims, too, which do not in any way appear on the record or in any of the instruments constituting the clairti of title. An easement, like a right of way, or right of drainage, or right to flow water over or dam it back upon the land, if such exists and is still in use, will be good as against any purchaser. In fact, any valid claim which is protected by actual use will not be lost by not appearing on record or in any instrument. And claims which in their origin were not valid may become so by being long enough actually used. For instance, in the foregoing case, the abstract shows that the deed from David Wallace was executed more than twenty years after he obtained title. Wilkins does not seem to have had actual pos- session of the land, as he resided in another State. Now suppose that during that time some one under some pretext, good or bad, had taken an adverse possession of the land and had kept it for 20 years? The effect would probably be to extinguish Wilkins's title; and all the deeds from that point down might be worthless. All this illustrates the importance of making inquiry concerning all persons who have ever been in possession of the land, and under what claim of right. A full discussion of this subject of the examination of title would fill a volume, but the foregoing, it would seem, is sufficient for a treatise of this character. It will at least indicate the cor- rectness of what was said at the beginning of the chapter, namely, that the labor of looking up a title is one that should be trusted only to a good lawyer. CHAPTER VI. OF MORTGAGES. 1 . Definition of i. Mortgage. 9. Interest : Legal ra'.es In different 2. Requisites of a Mortgage. States. 3. Equitable Mortgages. lo. Compound Interest. 4 Form of a Mortgage. 11. Usury. 5. Execution, Delivery, and 12. Assignment of Mortgagei. Recording. 13, Payment of Mortgages. 6. Power of Sale. 14. Discharge of Mortg^es. 7. Insurance. 15. Redemption of Mortgages. 8. Taxes. 16, Foreclosure of Mortgages. When a farm is bought or sold it very often happens that it i« mortgaged back to the granter by the purchaser for a part of the purchase price. It is desirable, therefore, whether one is buying or selling, that he know something of the legal character and inci- dents of these instruments, to the end that he may protect himself in his rights therein. 1. Definition of a Mortgage. A mortgage is a means of securing the payment of a debt. It is a conveyance of property to secure the payment of a debt or the performance of some other act to become void if the debt is paid or the other act is performed. A definition given by an eminent author is as follows: "A mort- gage at common law may be defined to be an estate created by a conveyance absolute in form but intended to secure the perform- ance of some act, such as the payment of money or the like, by the grantor or some other person, and to become void if the act is per- formed agreeably with the terms prescribed at the time of making the conveyance." (i.) There are in this country at the present time two opposite theories or doctrines as to the nature of a mortgage, holding about (l.) Washburn on Real Property, Chap. 16, {i. OF MOKTGAGES. 55 equal sway. According to one view, called the comnaon law doctrine, a mortgage, like a deed, conveys to the one taking it the legal title to the land. It gives him the right of immediate pos- session, and he really owns the land just as though it had been deeded to him, except that his title is subject to be terminated by the performance of some act, — usually the payment of money with interest. If this act, whatever it may be, is duly performed, then his estate ends and reverts to the party who gave the mortgage. According to the other view, called the equitable doctrine, the debt to be paid is regarded as the main thing. The land is security merely. The person giving still retains the right of possession, still holds the legal title and virtually owns the land but subject to a claim which the party taking the mortgage has upon it to the extent of the money he has loaned, or to the extent of the amount mentioned in the instrument. Now these are only two ways of looking at a mortgage. The instrument is really the same which- ever way it is viewed. Under either view it is now necessary to take certain legal steps before a mortgage can vest the full and complete title in the one who takes it. The parties to a mortgage are called the mortgagor and mort- gagee; just as the parties to a deed are called the grantor and grantee. Mortgages may be given of personal property as well as of real estate; but in this chapter we will consider only real estate mortgages. The common law doctrine regarding mortgages prevails in the eastern part of this country generally, and the equitable doctrine prevails in the west. In all of the States east of the Mississippi river, except New York, Michigan, Indiana, and Wisconsin in the North, and South Carolina, Georgia and Florida in the South, the old English doctrine that a mortgage conveys the legal title and the right of possession prevails. It is also the doctrine of Missouri and Arkansas. But in all the other States of the Union, including New York, Michigan, and the rest of the excepted States above mentioned, the equitable doctrine, that a mortgage gives simply a lien on the land, but not the legal title nor the right of possession, is everywhere in force. It may seem strange that there should be this difference in the theory of a mortgage, but it came about quite naturally. In early times in England, where the common law doctrine was enforced, often great hardships resulted from it. If the mortgagor failed to 56 MANUAL OF THE LAW. perform the condition, failed to pay the money on the day speci- fied, he lost his right to do so. He may have borrowed but a small amount of money on a very valuable piece of land, but if by over- sight or misfortune he failed to repay it on the appointed day he lost all his rights in the land. So the Courts of Equity, which were early established for the purpose of giving relief in cases where the law was harsh and unjust began to give relief in these cases. Those courts looked upon a mortgage just as it really was — a security for a debt; and they held that if the debtor could pay the debt with interest he should be allowed to do so even if he were a little late ; that the creditor could not complain if he got back his money with interest in a reasonable time, and that if he did so receive it he must give back the security. In process of time this relief granted by the courts of equity became generally recognized as a legal right, and hence two views or doctrines concerning mortgages sprang into existence. This right was called the right to redeem, or the equity of redemption, and so carefully was it guarded that a man was not permitted to lose it even by his own agreement. And at the present time if a man agrees in the most express terms that he will forfeit his right of redemption the courts will not enforce such an agreement, but will give him the usual time to redeem. The only way in which this right to redeem can be lost, is by giving what is called a power of sale moijtgage. This gives the mortgagee, in case the mortgage is not paid at the time it expires, the right, after a certain number of days, to sell the land (providing he takes precautions to secure a fair price for it) and to retain out of the proceeds enough to pay the mortgage debt, with interest and costs, and pay the balance over to the mort- gageor. The courts have sanctioned this procedure. In this country some of the States have by statute adopted the equitable view of mortgages, while others, as we have seen, have retained the old common law doctrine. The right to redeem is recognized in all of them, and the period of redemption is fixed in most at three years from the expiration of the mortgage, but in some it is only one. 2. Requsites of a Mortgage. Any sort of a conveyance of land which is made for the purpose of securing a debt or the per- formance of some act. is a mortgage, and it matters but little what the form of it is. If it is made in the form of an absolute deed, and the grantee executes upon a separate piece of paper a defers- OP MORTGAGES. 57 ance or agreement to reconvey, the two instruments together con- stitute a mortgage. If an absolute deed is given, and a mere verbal promise is made by the grantee to deed back again when something is done, it may even then be but a mortgage. In this latter case it is called an equitable mortgage. 3. Equitable Mortgage. There are many of this kind. For instance if one attempts to make a mortgage, but fails to make it properly so that it will hold in law, and receives a consideration for it, it will be held to be an equitable mortgage. An agreement to give a mortgage has many times been held to constitute an equitable mortgage, (i.) A deposit of title deeds for the pur- pose of securing a debt creates in England an equitable mortgage, and the doctrine has been adopted to a limited extent in America. A man who has sold land but has not received his pay for it, or taken a formal mortgage back for the amount of it, has, in most States, an equitable mortgage for whatever balance may be due him. This is usually called a vendor's lien. It obtains in Ala- bama, Arkansas, California, Colorado, District Columbia, Florida, Illinois, Indiana, Iowa, Kentucky, Maryland, Michigan, Minne- sota, Mississippi, Missouri, New Jersey, New York, Oregon, Ten- nessee, Texas, and Wisconsin. When a man pays for land before he gets his deed for it, he has, as to all persons who know of it, an equitable mortgage on the land. A contract to sell land sometimes amounts to an equitable mortgage of it. This list of things which may constitute an equitable mortgage might be extended, but the foregoing will illustrate the principle. The design of this chapter is to treat of formal and legal mortga- ges. All the above cases are, really and strictly speaking, not mortgages but only what the courts of equity will hold as such for the purpose of promoting justice or preventing injury or fraud. 4. Form of Mortgage. In form a mortgage is usually just like a deed, with an additional clause called the defeasance which provides that if the grantor pays a certain sum of money, or per- forms some other obligation named, then it shall be void. The style of this defeasance is usually like this: " Provided, however, that if the said A. B. (the grantor), his heirs, executors, or admin- istrators, shall pay to the said C. D. (the grantee), his executors, administrators or assigns, the sum of $ , with interest (I.) ao Ohio, 464; 21 N. Y., 581 ; 31 Cal. 321. 5S MANUAL OF THE LAW. (semi-annually or otherwise, as agreed upon), on or before the .... day of 1 88.., then this deed and also a certain prom- issory note (or bond, as the case may be) signed by the said A. B. and bearing even date herewith, shall be null and void, but other- wise shall remain in full force. It will be seen that so far as the form of a regular mortgage is concerned it is really a deed upon condition, the condition being the failure of the grantor to pay to the grantee a certain sum of money. If the money is paid the deed becomes void. Mortgages being so much like deeds, very much that was said respecting those instruments in the chapter devoted to them applies with equal force as to mortgages. Like a deed, a mortgage should be written -or printed on paper or parchment. The parties to it should pos- sess the same legal capacity, as to age, etc., that is required of the parties to a deed. The wife should join in her husband's mort- gage the same as in his deed. There should be in a mortgage the same formal parts that are in a deed, the same careful description of the mortgaged property, the same covenants for title, and in addition to these, the defeasance clause above mentioned, and gen- erally a power of sale clause, and often a tax, interest, and insur- ance clause, referred to further on. The consideration, or the debt secured by the mortgage, should be carefully described, though it is not essential that it be described with great particularity. A general description will do, and a mortgage for an unknown sum, or an unliquidated indebtedness, is good. For instance, a mortgage is often given to secure a run- ning open account on which the amount due is constantly increas- ing, and such mortgages are perfectly valid. But when the amount is certain it is almost universally the custom to have a note or bond accompany the mortgage. The note or bond are really a part of the mortgage, they are construed together, and each may be used in throwing light upon the other in case of doubt as to the meaning of either. The note or bond is used also to secure the personal liability of the mortgagor, so that if in case of foreclosure the property should sell for an amount less than the debt, the mort- gagor would be personally liable for the deficiency. He would be liable for this deficiency anyway if the amount of it could be clearly proved; but the note or bond places the matter beyond all question, and does away with the necessity of other proof. Besides, if the note or bond be assigned its consideration cannot OP MORTGAGES. 59 generally be inquired info; the amount of the mortgage is thus fixed beyond dispute. 6. Execution, Delivery, and Kecording. The same obser- vations are to be made concerning these sub-heads that occurred under similar sub-heads in the chapter on deeds. Like a deed, a mort- gage should be signed, sealed, witnessed, and acknowledged, and the same formalities in doing each of these things should be observed. It should be delivered, and as soon as delivered should be placed on record. The recording is for the protection of the mortgagee, and he should see to it and bear the expense of it. 6. Power of Sale. It is now the general custom in this coun- try to insert a power of sale in mortgages. In England all mort- gages contain this power by virtue of a statute to that effect, and the States of Virginia and West Virginia have similar statutes. A power of sale authorizes the mortgagee, on default in the con- ditions of the mortgage, to sell the land, keep the amount of his claim out of the proceeds, and turn the balance, if any there be, over to the mortgagor. The main object of this is to do away with the expense and delay of a suit in chancery, and to afford a more ready and expeditious way of cutting off the mortgagor's equity of redemption. The validity of these powers of sale is everywhere recognized. There are statutes in most of the States governing the manner in which the sale shall be made. 7. Insurance Clause. It is very common now, where the mortgaged property consists largely of buildings or other improve- ments which may be destroyed by fire, to have a clause inserted in the mortgage which provides that the mortgagor shall keep the premises insured in a certain sum for the benefit of the mortgagee. This is a valid provision, and a failure to comply with it will, if so expressed in the instrument, amount to a default which will give the mortgagee the right to foreclose. If there is no such clause inserted, the mortgagee would have no right in case of loss to any insurance wliich the mortgagor may have procured. (8 Paige, N. Y., 437; 20 Ohio, 185.) When a policy is taken out pursuant to the provisions of an insurance clause, it should be assigned at once to the mortgagee. If this is not done, however, the mortgagee will, if there is an insurance clause in the mortgage, have an equit- able lien on the proceeds of the policy. (44 N. Y., 42 ; 52 111., 442.) If the policy of insurance provides, as is quite often the case, that the loss, if any, shall be payable to the mortgagee, that 6o MANUAL OF THE LAW. will amount to the same as an assignment of the policy. (17 N. Y., 395-) If a loss occurs and the amount of the policy falls due, the mort- gagee is obliged to receive it and apply it to the reduction 01 extinguishment of the mortgage debt. (45 Me., 447.) If it will more than pay the debt the balance must go to the mortgagor. 8. Taxes. As it is as much for the interest of the mortgagee as for the mortgagor that the taxes on the mortgaged property be promptly paid, it is quite customary to insert in the mortgage a clause providing that the mortgagor shall pay all taxes and assess- ments levied upon the land, and that a failure to do so shall amount to a default. Such a provision is valid. Sometimes it is provided that if the mortgagor fails to pay the taxes the mortgagee may do so and may add the amount so paid to the principal of the mort- gage. Some courts have held that the mortgagee may do this even if there is no provision to that effect, and that all amounts'so paid for taxes may be included in any judgment afterwards obtained on the mortgage. (11 Kansas, 48.) Astipulation in the mort- gage that a failure to pay taxes, procure and keep up insurance, and to pay interest when due, shall cause the whole mortgage debt to become immediately due and payable, is proper and valid. (44 Barb., N. Y., 336.) 9. Interest. The rate of interest which the mortgage is to bear, and the time and place of paying it should be carefully stated in the mortgage, and in the note or bond. It is a matter of much importance to have these things definitely settled and stated in the mortgage. If nothing is said about interest, the mortgage will not bear interest till after it is due. If it simply says with interest, but no rate of interest is mentioned in the mortgage, it will bear inter- est at the rate provided by law. The law which governs will in most cases be the law of the State where the parties live, though if the parties live in one State and the land lies in another, and the nortgage is to be paid in the latter State, the law of the latter State might govern. But the fact that the land, which is given as security for a debt, lies in another State, would not of itself take the transaction out of the operation of the laws of the State where the mortgage is made and the parties reside. (Story's Conflict of Laws, §287; 44 N. Y., 303.) If nothing is said about the place of re-payment, the presumption is that the mortgage is to be paid in the State where it is made, although the land mortgaged may OF MOETGAGES. 6i lie in another State, and the laws of the State where the mortgage is made will govern as to the rate of interest, etc. (53 Barb, N. Y., 350- ) The law in force at the date of the mortgage will govern the rate. If tlie law is changed after the mortgage is made, the change will not affect it. (22 N. J., Eq., 444.) The following are the legal rates of interest in the different States : Alabama. — 8 per cent Arizona. — 10 per cent; but parties may contract for any rate. Arkansas. — 6 per cent. Parties may contract for any rate under 10 per cent. California. — 10 per cent. Parties may contract for any rate, simple or compound Colorado. — 10 per cent. Coimecticut. — 6 per cent Usury forfeits the interest Dakota. — 7 per cent. Parties may contract for any rate under 12 per cent Delaware. — 6 per cent. Usury forfeits whole loan. District of Columbia. — 6 per cent. Parties may contract for any rate under ic per cent Florida. — 8 per cent where no rate is agreed upon, but any rate is allowed. Georgia. — 7 per cent. Parties may contract for any rate under 12 per cent. Idaho. — 10 per cent; but parties may contract for any rate under 24 per cent Illinois. — 6 per cent. Parties may contract for any rate under 8 per cent Indiana. — Same as Illinois. Iowa. — Same as Illinois. Kansas. — 7 per cent; but parties may contract for any rate under 12 per cent. Kentucky. — Same as Illinois. Louisiana 5 per cent. Parties may stipulate for 8 per cent and k higher rate under certain circumstances. Maine. — 6 per cent ; but parties may agree in writing for any rate. Maryland. — 6 per cent; any charge above that cannot be collected. Massachusetts. — Same as Maine. Michigan. — 6 per cent Parties may agree in writing upon any rate not above 10 per cent. Minnesota. — 7 per cent. Parties may agree in writing for any rate under la per cent. * Mississippi. — Same as Illinois. Missouri. — Same as Illinois. Montana.— 10 per cent. Parties may contract for any rate. Nebraska. lo per cent. Parties may contract for any rate under 12 per cent Nevada. — Same as Montana. New Hampshire.— 6 per cent. To charge more forfeits three times the excess. New Jersey.— 7 per cent. Usury forfeits all interest. New Mexico.— 6 per cent; but parties may agree upon any rate. New York.— 6 per cent. Usury makes void the mortgage and note. N»rth Carolina.— 6 per cent; but pardes may stipulate for 8 per cent Ohio. — Same as North Carolina. Oregon.— 10 per cent; but parties may contract for 12 per cent 63 MANUAL OP THE LAW. Pennsylvania.— 6 per cent If a higher rate is charged it may be recovered bact Rhode Island. — 6 per cent ; but parties may agree upon any rate. South Carohna.— 7 per cent ; but parties may agree upon any rate. Tennessee. — 6 per cent. Parties may contract for any rate not exceeding 10 pa cent. Texas. — 8 per cent; but parties may contract for 12 per cent Utah. — 10 per cent. Parties may contract for any rate. Vermont. — 6 per cent. Anything above that cannot be collected. Virginia. — Same as Vermont. Washington Ter. — 10 per cent ; but any rate may be agreed upon. West Virginia. — Same as Virginia. Wisconsin. — 7 per cent ; but parties may contract for 10 per cent. Wyoming Ter. — 12 per cent; but any rate may be agreed upon. If the mortgage does not state the time of paying interest, none will fall due until the expiration of the mortgage, even though that may be for a number of years. It has been held however, that where there was an understanding or parol agreement that interest should be paid annually, it would so become due, even though the mortgage itself was silent upon the subject. But it is customary and proper to have stated in the mortgage the times at which interest shall be paid, as annually or semi-annually, or the like. When there is such a provision, a failure to pay interest at the time stated will amount to a default, which will give the mort- gagee the right to foreclose. This is the general rule. (2 Verm., 135.) There may be some exceptions to it. If the mortgage does not state the place where interest shall be paid, the general rule is that the mortgagor must find the mort- gagee and pay him where he is. This is the reason why it is best to have the mortgage provide where interest shall be paid. Such a provision may save the mortgagor a great deal of trouble. 10. Compound Illtei'est cannot be enforced. The usury laws of the different States generally prShibit it. If the interest is not paid when it falls due, interest on that unpaid interest is not generally collectible. Still if an interest bearing note is given for that interest it will be good. Hence it is quite often the case that persons loaning money have interest coupons attached to the mort- gage, or to the note or bond accompanying it, which coupons are in effect promissory notes, and are held to draw interest after their maturity. In some States there are statutory provisions that if interest is not paid when it falls due it may be added to the prin- cipal. This the Ohio law. (260^0,59.) It amounts to com- pound interest. In Michigan interest is allowed on unpaid install- OF MORTGAGES. 63 ments of interest at the same rate that the principal bears. (Comp. Laws, Mich., page 541 •) This is not compound interest, for only simple interest can be computed on unpaid interest. 1 1 . Usury. If a rate of interest higher than the law allows is provided for in the mortgage, it is usurious and cannot be col- lected. Formerly to charge usury worked a forfeiture of the whole debt, and was punishable otherwise besides ; but the laws in this respect have undergone a great change, and now about all that remains of their former stringency is a forfeiture merely of the usury above the legal interest. Indeed, in some of the States there are now no usury laws whatever, and parties may charge any rate of interest they may see fit to agree upon. Such is the case in Maine, Massachusetts, Rhode Island, South Carolina, Florida, California, Nevada, Utah, Arizona, Montana, New Mexico, Wyom- ing, and Washington Territory. In the States of Georgia, Con- necticut, Indiana, Kansas, Maryland, Michigan, Minnesota, Missis- sippi, Ohio, Pennsylvania, Tennessee, Texas, Vermont, West Vir- ginia, any charge of interest above the legal rates simply forfeits the excess. In Alabama, Illinois, Kentucky, Lousiana, Nebraska, New Jersey, Virginia, Wisconsin, Dakota, and District of Colum- bia, usury forfeits all interest. In New York, Delaware, North Carolina, Arkansas, and Oregon, usury makes void the security. In Missouri and Iowa to charge usury forfeits all interest and also ten per cent of the principal. In Idaho three times the amount of the interest is forfeited, and a fine of $100 is imposed for charging usury. In North Carolina and Tennessee double the whole loan is forfeited for charging usury, and the act is made punishable as a misdemeanor. 12. Assignment of Mortgages. A mortgage, like any other property, may be sold, and the transfer of the title to it is accom- plished by what is called an assignment. A formal assignment is accomplished by a short deed after the form given at the end of this book. Such a document duly executed and delivered will place the assignee or purchaser of the mortgage in exactly the same position that the mortgagee occupied. The note or bond should be endorsed over or made payable to the assignee. The assignment should be recorded the same as a mortgage. 13. Payment of Mortgages. A payment of the amount due on a mortgage at the time the mortgage expires has the effect 64 MANUAL OF THE LAW. of discharging it. If the payment, or tender of payment, is not made until after the mortgage expires it does not have the same effect. A reconveyance is then necessary in order to vest the estate in the mortgagor. But in New York, Michigan, and some other States a payment after the day named does discharge the mortgage and no reconveyance is necessary. ^Payment cannot be made before the mortgage is due, unless both parties agree to it, as neither has the light to enforce it. The place of payment ought to be mentioned in the mortgage. If it is not, the mortgagor is obliged to seek. out the mortgagee and make payment where he can find him, the same as in the case of interest. If no time of payment of the mortgage is mentioned, the debt is payable on demand of either party. If a legal tender of payment is made and refused interest will ceass to run from that time. (42 Md., 193.) A tender to be good must be absolute, unconditional, and strictly within the terms of the mortgage. That is to say, the full amount due and no more must be offered in lawful money at just the right time, and it must be offered unconditionally. If it is refused, interest will cease at once. But the tender must be kept good, for if the mort- gagee changes his mind he can still claim his money. If it is then not ready for him, interest will commence again. When a pay- ment is made on a mortgage which is not sufficient to liquidate the debt, it is to be first applied to the payment of the interest due, and the balance is to be applied on the principal. ( i Clark N. Y., 470- ) If payment of the mortgage debt is not made within twenty years from the time it fell due the mortgage expires by operation of law and payment cannot then be collected. The mortgage " outlaws " as it is termed. The statute of limitations operates and prevents any action being brought upon it. The presumption is that it has been paid. This presumption, however, does not arise if there has been any admission of the debt any time during the twenty years, — as, for instance, the paj'ment of any interest or principal within that time, or the commencement of a foreclosure suit. In some of the States a period less than twenty years is fixed by statute, and even without any statute nineteen years has several times been held as such a lapse of time as created a pre- sumption of payment. (10 Johns, N. Y., 381; 15 Fla., 180.) 14. Discharge of Mortgages. When the mortgage has been OF M0ETGAGE8. 65 paid it is the duty of the mortgagee to execute the proper instru- ment discharging it. Payment, if properly made, will of itself discharge the mortgage in equity; but this alone does not give the means of discharging it on the records. Provision is generally made by statute for the discharge of the mortgage when paid either by a brief entry on the margin of the record of the mort- gage signed by the holder of it, or by his executing an instrument called a satisfaction of mortgage, which is recorded at length in the public records. If the mortgagee or holder of the mortgage refuses to thus dis- charge a mortgage which has been paid, he is made liable for the payment of a penalty to the mortgagor, varying in amount in the different States from $100 to the full amount of the mortgage. 1 5. Redemption of a Mortgage. As has already been stated, it used to be the rule that if a mortgage was not paid at the time it was due the mortgagor had no right to pay it afterwards. No matter how small the mortgage debt or how great the value of the property, if the mortgagor did not pay on the day named he lost his property. The title to it became by operation of law absolute in the mortgagee the moment there was a default. During the last two hundred years the hardship of this rule has been greatly modified. A period is now always allowed in which the mort- gageor may redeem his property on payment of the mortgage debt with interest and expenses. This right or equity of redemp- tion is so zealously guarded by the courts that a man is not per- mitted to lose it even by- the most deliberate and strongly expressed agreement. It can only be cut off by lapse of time and by fore- closure. The time varies in the different States. In New York and Wisconsin it is ten years. After a foreclosure and sale there is in some of the States a further period of redemption varying from sixty days to six years. 16. Foreclosure of Mortgages. A foreclosure of a mort- gage is a proceeding in a proper court by which the mortgagor's right of redemption is barred or forever closed. It is usually done by filing a bill in chancery calling upon the mortgagor to come into court and redeem his mortgaged premises, on failure of which he loses his right to do so. If the mortgage is not paid when it matures, or if the interest is not paid at the time specified, or if the mortgagor fails to pay taxes or insurance as agreed upon, this right 66 MANUAL OF THE LAW. to foreclose generally accrues to the mortgagee. A foreclosure of a mortgage now in many States includes a sale of the mortgaged property under the direction of an officer of the court, out of the proceeds of which sale the mortgage debt with costs is paid, and the balance, if any, is turned over to the mortgagor. Formerly a foreclosure simply cut off the right to redeem, and vested the prop- erty in the mortgagee. Where a power of sale is given in the mortgage it is now possible in many of the States to avoid the delay and expense of a bill in chancery by foreclosing by adver- tisement. That is, the mortgagee, by virtue of a power of sale given him in the mortgage, simply advertises the property for sale, and in accordance with the provisions of the statute, has the land sold at public auction by the proper officer (usually the sheriff), bids on it himself if he chooses, and from the proceeds receives the amount of the mortgage debt with costs, and the balance is turned over to the mortgagor, whose rights are then entirely cut off. If the land does not sell for as much as the mortgage debt, the mortgagee can get judgment for the deficiency if there is a note or bond accompanying the mortgage. If there is no note or bond, , judgment for the deficiency may be had if it can be clearly shown that the actual debt was more than the amount realized by the sale of the property. The foreclosure of a mortgage is a piece of work requiring accuracy and care, and it should be given only into the hands of a tjood attorney. CHAPTER VII. DEEDS OF TRUST. Sometimes instead of giving a mortgage to secure the payment of money, property is deeded to a third person in trust, as it is called, with directions that if the money is not paid as agreed upon he shall sell the property and pay the debt out of the proceeds. The deed in such a case is called a trust deed, and as will be seen it serves the same purpose as a mortgage. The person to whom the land is so deeded is called the trustee. He becomes the agent of both parties, and he must perform his duties with the strictest impartiality. A trust deed when used in place of a mortgage becomes, in legal effect, really a mortgage. It generally, however, vests the legal title in the trustee, even in those States where the equitable doctrine concerning mortgages is adopted. (Dillon, J., in 2 Am. L. Reg., n. s., 655.) Deeds of trust are very often preferred to mortgages, and in some States they have entirely superceded mortgages as a means of security. They are by some thought to be better on account of the intervention of a disinterested person as trustee. Trust deeds are used for other purposes than for the security of debts, but we speak of them now only in that capacity. The fol lowing form of a trust deed will explain this use of such instru- ment: SIMPLE FORM OF TRUST DEED. This deed of trust, made this day of by of Witnesseth : That for the purpose of securing to a note of this date, due in twelve months with interest from date at , I do hereby convey to in trust the following property (describing it.) And if the note is not paid at maturity, 68 MANUAL OF THE LAW. I hereby authorize and direct the said to sell the property herein conveyed (state manner, place, time, and notice of sale, etc.), and to execute a deed to the purchaser, pay the amount hereby secured with interest and costs, and to hold the remainder subject to my order. Witness my hand and seal, etc., etc. CHAPTER VIII. FIXTURES— THINGS 7 HAT GO WITH THE SALE. I. t - What are Fixtures. lO. Agricultural Machinery, 2. Application of the Principles. II. Pumps, Sinks, etc. 3- Things held to be Fixtures. 12. Machinery in General. 4- Buildings. «3- Farm Bells. S- Hoasehold Furniture. 14. Gas Fixtures. 6. Fences. IS- Stones, etc. 7- Growing Crops. 1 6. Ornamental Statues. 8. Nursery Trees. 17. Title Deeds. 9- Manure. 1 8. Heir Looms. If you have bought a farm or any other piece of real estate, and are about to move on to it, it is desirable to know what things in the shape of improvements which your grantor may have placed on it you are entitled to have remain there for your use. Or, if you have sold your farm and are about to remove from it, it is equally desirable to know what things of a removable nature you are entitled to take away with you, and what things the law requires you to leave there for the use of the man to whom you sold. Whether you have bought or sold it is important to know just what things, which in their nature are capable of being removed, are still to be regarded as part of the land, the title to which passes to whoever owns the land. 1. What are Fixtures? When any article or thing has become so annexed or affixed to the land that it has in law become a part of it, it is called a fixture. The most general rule to be applied in determining what things are fixtures and what are not, is that fixtures are any chattels tvhich have become substantially and permanently annexed to the land or to buildings or other things which are clearly a fart of the land. 70 MANUAL OF THE LAW. For example: All houses, barns, fences, bridges, trees, growing crops, etc., are fixtures; they are a part of the land and pass to whoever buys the land. The means by which the fixture is annexed may be either physical, as is the case with buildings and trees, or it may be purely theoretical or constructive as is the case with the keys of a house which may be on a key ring in the own- er's pocket, or the title deeds of the place which may be locked up in some safe, both of which are really a part of the land. It is said that the fixture must be so annexed that it cannot be severed without injuring the freehold. For example: A range or grate set in brick work is a fixture (7 Mass., 432), while a stove with loose pipe is not. (24 Wend., 191.) ^ Mantel pieces attached to the chimney so that they cannot be removed without marring the plastering are a part of the house and go with it; but if merely resting on brackets they are not, and may be taken away by the person selling the place. (102 Mass., 517.) Frescoes on the walls of a house could not be removed on a sale of it, but pictures hang- ing on the walls which could be removed without hurting the walls are personal property, and may be carried away by the former owner. Yet there are many things so frailly attached to the realty that they could be removed without injuring it, which are still clearly a part of it, so that this last rule will be found not to work in many cases. For example: Doors, windows, blinds, shutters, etc., which may be removed without the slighest damage to the house, and which may at the time of sale be actually detached from the house, would still be deemed a part of it, and would pass with the land. (4 Metcalf, 306.) So, too, on the other hand, mirrors, wardrobes, and other heavy articles of furniture which may be tightly screwed to the walls, and which possibly could not be removed without slight injury to the house, must be regarded as chattels belonging to the former owner. (4 Metcalf, 306.) We see, therefore, that the foregoing rules are not decisive in all cases of the question of what constitutes a fixture. It hence becomes necessary to add that the intention of the party making the annexation often determines whether the thing annexed shall be part of the real estate or still remain a chattel. INTENTION DETERMINES. If a chattel is annexed to the freehold, with the intention oj making it c permanent accession and improvement to it, it then becomes a part of the land. (40 N. Y., 287.) This criterion will THINGS THAT GO WITH THE PABM. 7 1 be found of more controlling importance in determining this ques- tion of fixtures than the others that have been mentioned; vet the true criterion, says the New York Court of Appeals in the case above cited, is the united application of all these requisites. Apply- mg the principle of intention it has been held that rails placed along the line of a proposed fence for the purpose of being laid into the fence, though not at once actually applied to that use, must be regarded as fixtures, and pass by deed of the land. The intention to appropriate the rails to the use of the land is sufficient to make them a part of it. (i Chandler's R., 240.) Likewise when a thing has once become a fixture it will not lose its character as such and become personal property again by being severed from the soil, unless there is the intention to perma- nently detach it from the land. So the materials which have been once used in a fence but have been taken down and piled up for future use in the same place are regarded as still a part of the land. (2 Hill, 142.) 2. Application of tlie Principles. These rules regarding what constitutes a fixture are applied with considerable strictness as between the seller and the purchaser of a farm. Every thing which belongs to the farm goes with it — everything which the seller erected there, whether for purposes of trade and manufac- ture or for convenience or ornament, unless they have been specially reserved in the deed. (6 Cow. N. Y., 663.) As between mortgagor and mortgagee these rules are applied with even more strictness. They are always construed most strongly in favor of the mortgagee. Everything which the mort- gagor affixes to the land after he has mortgaged it will, in case of foreclosure, pass with the land to the party purchasing. ( 15 Mass., '59-) But as between a landlord and his tenant, the strictness of these rules is much relaxed. All that is required of a tenant is to leave the land occupied by him in as good condition as it was when he rented it. Everything, therefore, which he annexes to the land for the purpose of ornament, domestic convenience, or to carry on a trade, may be removed by him at the expiration of his tenancy, pro- vided he can do it without materially injuring the freehold. (16 Mass., 449; 7 Barb., 263.) The presumption in these cases is that it was not the intention of the tenant to make the things which he annexed to the premises for the above purposes permanent acces- 72 MANUAL OF THE LAW. sions to the freehold. He is presumed to act naturally, and for his own interests, and to have intended such annexations only for tem- porary use during his tenancy, (i Ohio N. S., 5II-) These general observations will be illustrated by the following enumeration of things which the courts have held to be fixtures, and as such to pass by deed of the land: 3. Things Held to be Fixtures. As between the seller and the buyer of land the following are regarded as fixtures: 4. All buildings of whatever nature standing upon the land go to the purchaser. It is customary to mention buildings in the deed, but it is not necessary to do so; being a part of the land they would pass with it. And it has been held that the materials of any old building which has been taken down or has been blown down, and have been packed away for future use upon the farm would pass with it. (41 N. H., 505.) The reason of this is that there has never been any intention to sever the materials which composed the building -from the soil to which they belonged. Had there been such an intention, as for instance, had the materials been piled up for sale or to remove to another farm, they would then have become personal property, and would not pass with the land. It may seem strange that the mere thought in the mind of the owner at the time he handles the materials should make all the difference between real estate and personal property, but a little reflection will show it" to be good common sense. The intention of the mind is a very potent thing. If I kill a man because I think he will at once kill me if I don't, it is justifiable homicide; if I kill him because I hate him and want him out of the way, it is willful murder. In one case I am excused, or possibly applauded; in the other I am hanged. Of course it is possible for buildings to be personal property, and not a part of the land on which they stand. The owner of land may allow any one to put buildings on it, and may agree that the buildings when erected shall belong to the man who builds them. Such buildings would then be personal property, and the title to them would not pass with the title to the land. In case of a sale of the land, the owner of the buildings could move them oS, even though the purchaser supposed he had bought them. (38 N. H., 429; 19 Conn., 154.) But the purchaser would have a claim against his grantor under his covenant of seizin, and could proceed against him for the damages caused by the removal of the build- THINGS THAT GO WITH THE SALE. 73 ings. For he had a right to suppose that buildings which were attached firmly to the land were in fact part of it, and if he found they were not, such fact would constitute a breach of covenant. (17 Vt, 403.) Everything which is a part of any building on the land goes with it, as the doors, blinds, shutters, keys, furnaces (either brick or portable, see 75 111., 385), grates, and in fact everything which was intended by the owner to be a permanent part of the building. Any of these things which are removed temporarily at the time of sale are still a part of the building; though new articles which have been bought but are not yet attached at the time of sale are not fixtures. (4x3 Vermont, 233.) . 5. Household Furniture, curtains, carpets, pictures, stoves, etc., are personal property, and may be carried away by the owner on a sale of the land. But a range or grate is, as we have seen, when set in brick work, a part of the house. (7 Mass., 432.) 6 . Fences of all kinds and fence materials which have been once used, but which may be taken down and piled up for future use in the same place, are a part of the land and go to the pur- chaser. (43 N. H., 306; 2 Hill, 142.) New fence materials which had never been built into a fence would not pass as part of the land. (16 111., 480.) 7. Growing Crops are fixtures and pass with a sale of the land. (9 Cow., 39; 46 Barb., 278.) If they are not specially reserved in the deed they become the property of the purchaser, notwithstanding there may have been a verbal agreement that the grantor should retain them. Being a part of the land, they pass by a deed of it, and a mere verbal agreement to the contrary will not be allowed to set aside the deed, which is a written agreement. ( 19 Pick., 315; 22 N. H., 538.) This is because of the rule that parol, verbal, or spoken evidence is not admissible to contradict or vary the terms of a written instrument. The same is true regarding any fixture which it is desired to reserve to the grantor. It must be done by so stating it in the deed, as a verbal reservation will not be binding upon the grantee. As soon as a crop is gathered or sev- ered from the ground it becomes personal property. See Chap. xxx. 8. Nursery Trees growing upon the land are fixtures, and pass to the grantee unless specially reserved in the deed. ( 39 111., 28.) If they belong to a tenant, however, he may remove them it the expiration of his lease. 74 MANUAL OF THE LAW. Hop poles when standing in the field with hops growing upon them are a part of the land. And if at the time of sale they are taken down for the purpose of gathering the crop and are piled up in the yard with the intention of being replaced the next season, they still go with the land, (ii N. Y., 123.) Trees of all kinds growing upon the land are a part of it. If they are blown down or cut down and are still lying where they fell, they are yet a part of the land. (54 Me., 309.) If cut and corded up for sale they then become personal property. 9. Manure. AH manure made in the ordinary course of car- rying on a farm passes on a sale of it as a part of the land. It makes no difference whether it is scattered in the fields or lying in the barnyard, or in heaps under the barn windows, or piled under' cover. (22 N. H., 538.) This rule is applied also between landlord and tenant. Good husbandry requires that the manure made on a farm remain there, and it is universally held to be a part of it as soon as it is dropped. ( See many cases in Tyler on Fixtures, 340, 355.) If at time of sale manure had been sold to a third party and had been piled up ready to be carried away, then possibly it would not pass with the land. (43 Vt., 95.) 10. Agricultural Machinery. Farm implements of all sorts, such as wagons, plows, harrows, mowers, reapers, rakes, and all similar articles of a movable nature, are of course chattels, and may be carried away by their owner upon a sale of the farm. But there is a class of machines generally actually annexed to the land, but sometimes only constructively annexed, which from their char- acter in subserving an important and permanent use upon the farm, are held to be a part of and to pass with a deed of it. In this class are cotton gins. These, with the gearing connected with them, are in the southern States generally held to be a part of the land on which they are located. (7 N. C, 369; 2 Strobhart, S. C, 478; 48 Miss., I.) A carding machine standing on the bank of a river and run by a water wheel, and which was very heavy, requiring several men to move it, though not fastened to the house in which it was used, was held to be a fixture. (72 N. C, 5^^.) A ■portable grist mill which had been fastened in a building on a farm, which was designed to be a permanent public grist mill for the neighborhood about it, was held to be a fixture and to pass with the land. (40 N. Y., 287.) Dye kettles secured in brick work are a part of the realty. ( 15 Mass., 159.) A still put up for distilling, THINGS THAT GO WITH THE FARM. 75 encased in brick, is a fixture; so is a large copper kettle, put up for cooking food for hogs, encased in brick and mortar. ( 5 Jones, 337. ) A cider mill was held to go with the land. (41 N. H., 504.) 1 1 . Pumps, sinks, etc., fastened to a building are a part of it in law; also water pipes bringing water from a distant spring. (97 Mass., 1 33; 99 Mass., 457.) 1 2 . Machinery in General. The rule in regard to this is that the motive power of machinery, and generally the connecting power, like the shafting, etc., both of which are in their nature stationary, are, as between vendor and vendee, always fixtures. The machinery impelled is sometimes a fixture and sometimes per- sonal property, according to the way it is annexed, etc. The cases bearing upon the subject are very numerous, and cannot be referred to here. (See Tyler on Fixtures, 546.) All the machinery of a cotton mill which is necessary to its use as such was held to be a part of the realty. ( 15 Penn., 507.) The saws belonging to a saw mill go with the mill. (43 N. H., 390.) A steam engine, though not fastened down, but which could not be taken out without tearing down part of the building in whicli it was placed, was held to be a fixture. (12 N. H., 205.) In fact all stationary machinery by which other portable machinery, such as lathes, etc., is impelled, are fixtures. (26 Ala., 493.) All the machinery of a flouring mill goes with it as a part of the land. (9 Cal., 119.) But it was held out in Nevada where a saw-mill had been built upon timbers lying loose on the ground and constructed with the object, after sawing the timber near at hand, of removing it to another place, that such a mill was personal property and could be removed by the grantor. (6 Nev., 244.) 13. Farm Bells, It was held in Texas that a bell, though used for farm purposes, was not a fixture, if it only sets on posts and is not permanently affixed. (37 Tex., 413.) But in Massa- chusetts a bell in the cupola of a barn hung in a frame which was nailed down, was held to be a fixture. (102 Mass., 514.) 14. Gas Fixtures. No definite rule can be laid down con- cernmg gas fixtures. They are sometimes regarded as fixtures and sometimes as personal property, according to the circumstances of each particular case. (4 Daly, 359.) As between landlord and tenant they are almost always regarded as chattels; and between vendor and vendee they have often been so regarded, being so much like ordinary lamps, brackets, etc., which are clearly chattels 76 MANUAL OF THE LAW. in their nature. (2 R. I., 157.) Still the courts have frequently held that gas fixtures are a part of the realty (40 Mo., 91; 3 Stockt., 84), and it is perhaps only safe to say that their character will depend on the circumstances of each case. 15. Stones, etc. All stones, ores, and other minerals, whether lying loose upon the land or in ledges, mines, or quarries, are of course a part of the land; but a stone split out from its original place in a ledge does not necessarily pass by deed of the land. If it was severed with the intention and for the purpose of being used on the land, it is then regarded as still a part of it; but if sev- ered in order to be I'emoved and used elsewhere, it has become personal property and will not pass on a sale of the land. (42 Vt., 146.) 16. Statues erected as ornaments in the grounds, and sun dials fixed upon stone foundations, are fixtures. (12 N. Y., 170.) 17. The Title Deeds which constitute the evidence of owner- ship of land are regarded as a part of it, and pass with it. In this country deeds, after being recorded, are generally not in themselves worth much. 18. Heir-looms, etc. There are certain articles which, as between the heir of an estate and the executor or administrator, are regarded as fixtures, and go to the heir along with the land. These are fieir-looms (old family articles of furniture or plate or pictures or the like which have been handed down from one gen- eration to another); also the deer in a park, the fish in a pond, doves in a dove-house, and the conies in a warren. It may be again observed in concluding this chapter that the things above enumerated are what have been declared to be fixtures as between the seller and buyer of land, so that they will pass to the one who buys along with the land. They would certainly all be held to be fixtures as between mortgagor and mortgagee; but as between landlord and tenant many of them would not be, and the tenant would probably have the right to take many of them away along with his other personal property. This matter is more fully explained in the chapter on " Landlord and Tenant." CHAPTER IX. APPURTENANCES, ETC, Beside the land itself, and beside the fixtures which are annexed tc it, the deed of it covers and conveys to the grantee certain othei things. Some of these things are regarded as appurtenances , that is, tilings w^hich are appendant, or related to, or dependant upon, the land conveyed ; and some are regarded as parcels of the land itself. Both pass to the grantee, whether they are specifically referred to in the deed or not. There is a very old legal maxim to the effect that -whoever grants a thing is held also to grant that ■without which the gravt itself would be of no effect. (Broom's Maxims, 362.) The object is in all cases of doubt to arrive at what must have been the intention of the parties, so in construing a deed, the courts will itnply a grant — if it is not expressed — of whatever is necessary to carry the direct grant into effect. To illustrate: If I sell a thing I am held to sell also the means of attaining that thing, providing I own the means, and common sense would indicate from the surrounding circumstances an inten- tion to convey them. Thus if I sell Smith a piece of land in the center of or entirely surrounded by my other land, I thereby sell Smith the right to pass over my other land to get to that which I sold him. This right of way over my land becomes appurtenant to Smith's land, and passes to whoever Smith sells to. The right becomes a servitude, as it is called, upon my land, and my land continues subject to it after I have sold it. Among the things which thus go with land to whoever buys it are all the easements which are appurtenant to it. Easements are the rights which a person, as the owner of one piece of land, has in the lands of another. These easements pass on a sale of the land /S MANUAL OF THE LAW. to the grantee, as is illustrated in the above case. We shall learn more about them when we come to the chapter on the subject of easements. (Chapter XI.) But there are many other appurtenant rights which pass as inci- dents of the ownership of land, and which it is not possible to group under general heads. They are to be inferred or implied from the circumstances of each particular case. Thus the sale of a mill carries the use of the water by which it is worked, the flood- gates, dam, and all things necessary for its use, as well as the land on which the mill stands, and the right to maintain the dam. (43 N. H., 540.) The sale of a "dwelling house and outbuildings belonging thereto " was held to carry the land on which the house stood, and also a barn which was used with the house and the land under it. (53 Me., 81.) The sale of a "house," "cottage," "wharf," "pit" or « pool," when these words were used as general terms of description in the deed, was held to carry the land upon which they were located as well as the things themselves. (6 Gray, 107.) The sale of the right to dig a trench in which to lay water pipes carries the right to enter, dig, and keep the same in repair. So a sale of mines on one's lands carries the right to dig for and work them. But a grant or deed of anything of this sort, or of a "way" or "road" only carries the right to the use of the thing, but conveys no title to the fee of the soil composing it. The fee of the land will not be conveyed unless that is necessary to fulfill the intention of the parties or the object of the grant. (44 N. H., 464; 22 Pick., 333.) A grant of land carries all mines in it ( i ), but a grant of mines does not carry the land. As has been said, grants which are not expressed in the deed are sometimes implied from those which are. This doctrine is well illustrated by a case in Connecticut where a man, through whose land a stream flowed, granted to the owner above a right to throw the washings of ore into the stream, and to deposit themselves on the grantor's meadow below. In time the meadow became so raised that the washings flowed off on to his adjoining pasture. It was held that the right to continue to throw the washings into the stream, and to have them thus deposited, passed as an incident to. the principal grant. (31 Conn., 150.) (l.) See note on page 10, as to mines of gold and silver. K J-H ^■•.f^l . \ 2f' Si,»^47i^ CHAPTER X. FARM SURVBriNG~THE BOUNDARIES 01' A FARM. 1. Monuments. 7. Lakes, etc. 2. Courses and Distances. S. The Sea. 3. The Quantity of Land. 9. Highways. 4. Parol Evidence as to Boundaries. 10. Surveys. 5. Streams, etc. 11, Acquiescence. 6. Artificial Ponds. 12. Meander Lines. Having purchased a farm and obtained possession of it, together with all that goes with it, it is desirable to know just how far it extends or just what its true boundaries are; or if these or any of them are uncertain or in dispute, what rules to apply in determin- ing them. The most general rule that can be laid down in this connection is that where visible objects, such as trees, streams, stones, or posts, mark the boundaries, they are to govern in determining loca- tion, no matter whether the boundaries so located agree with or conform to those marked by other indications. If there are no visible objects, or monuments as they are called, then the directions and lengths, or the courses and admeasurements of the boundary lines as given in the deed, are to be resorted to, and are to govern in determining the boundary, whether they correspond with the other indications, such as the number of acres mentioned in the deed, etc., or not. If there are no monuments nor admeasure- ments, -then the number of avres, the quantity of land, or any other means which may exist, may be made use of in determining the true extent of the farm. If none of these are given and there are no means of determining the true boundaries of the farm, why, then of course the whole deed must fail for want of certainty. 8o MANUAL OF THB LAW. 1. Monuments. These are permanent landmarks established or made use of for the purpose of indicating boundaries. They may consist of natural or artificial objects, streams, stones, stakes, springs, trees, posts, etc. (7 Cow., N. Y., 723.) When these exist they must govern, although they do not correspond with the dis- tances as given in the deed, nor do not include the number of acres mentioned. (2 Mass., 380.) To illustrate : In the descriptions of land as given in deeds it is very common to mention the bound- ary line as commencing at a certain point and running in a certain direction or along a certain stream a certain distance to another point, as a tree or stone, then in another direction a certain dis- tance to still another point, as a post or corner of a building, then in another direction a certain distance to some other point, as the corner of a street, then in another direction a certain distance to the place of beginning. This is sometimes called a description by metes and iounds, and it is customary to mention the number of acres contained in the land. Now if the deed after running the boundary line as above indicated adds this expression: " contain- ing one hundred acres of land," and it is found by actual measure- ment that there are only eighty acres within those boundaries, then only eighty acres will be conveyed. The monuments must govern. (42 Me., 209.) And a deficiency of this sort in the number of acres mentioned in the deed does not give the buyer any remedy against the seller for any return of part of the purchase money, unless, perhaps, the land was bought at a stated price per acre. (19 Pick., 387.) Indeed, of so much less importance is the number of acres mentioned in the deed than the boundaries marked by known monuments, that it has been held that a fraudulent over-statement of the quantity by the seller in order to deceive the buyer will give the latter no redress if the boundaries be truly pointed out in making the trade (102 Mass., 217); but a fraudulent statement as to the boundaries would release the purchaser from the sale. (9 N. Y., 183.) So, likewise, if the number of acres are found to be more than those mentioned in the deed; they all pass if included within the boundaries as set forth in the deed. In further illus- tration of the law that visible monuments must govern, it may be said that if the deed describes the boundary line as running from monument to monument in given directions and distancesi and it is found on actual measurement that both the directions and distances are wrong, the monuments must still govern JAJIM SUliVEXINQ. Hi and the land within them will pass. The reason of this is obvious. Surveys are often loosely made; measurements, especially in uneven or forest lands, are liable to be inaccurate; directions, which are determined by instruments liable to be affected and rendered variable by temperature and electrical conditions, may not always be exactly true, so that it is only sensible and proper that both should be required to give way to known and visible monuments. A boundary line as given in a deed was said to run westerly, but the monuments showed it to be northiuesterly, and the latter was properly held to be the true line. (22 Cal., 469.) If monu- ments are referred to in the deed which are not in existence at the time the sale is made, but the parties then go upon the premises and fix those monuments, and the purchaser takes possession, they will then ever after be bound by them, and neither can complain or have the monuments changed, though it may be found that they were not just accurately placed. (7 Gushing, 381.) 2. Courses and Distances. If the land is described in the deed as bounded by a line commencing at a certain point and run- ning, for example, west four degrees and seven minutes north, six chains and ten links to another point, thence south nine degrees and eight minutes west, forty chains to another point, and so on around to the place of beginning, these are called the courses and distances. And as has been stated, courses and distances govern if there are no visible monuments. (20 Pick., 62.) 3. The Quantity of Land. It is very common to mention in the deed the number of acres or quantity of land which the farm conveyed is said to contain. This is generally regarded only as a part of the description of the land, and it affords only the weakest means of determining the true extent of the farm. As we have seen, it is subordinate in importance to every other means of ascer- taining the boundaries. It aids but does not control the description. (5 Mass., 357.) Therefore, it was held in Kentucky that where a grant of land described by metes and bounds as containing 174 acres was found by actual measurement to contain 214 acres that the whole land would pass. (4 Met., Ky., 103.) And a failure in the number of acres does not generally give the grantee any right to fall back upon the grantor for any deficiency unless there is an express covenant as to quantity. 4. Parol Eridence as to Boundaries. The boundaries of « 82 MANUAL OF THE LAW. farm may sometimes be determined by parol or verbal evidence. It is a general maxim in law that parol or spoken testimony is not admissible to contradict or vary the terms of a written instrument. This is true of deeds. Their provisions cannot be set aside or even changed by parol evidence, but they may generally be explained in this manner if explanation is needed. The circumstances under which they were made may always be shown by parol. (20 Ohio, 147.) The meaning of vague or unusual words which may occur in the description clause of the deed, may be thus explained. (15 N.J. Ch., 418.) So may technical terms be explained, and also what are called latent ambiguities. (36 N. H., 569.) For the purpose of determining boundaries parol is admissible to show where monuments were; if they have been lost, or if there are two or more objects which would answer for the monument (as where a deed mentioned a « pine tree " and it was found there were two) parol is admissible to show which was meant. (2 N. H,, 369; 22 Cal., 496.) And where the deed leaves the boundaries doubtful, it is proper to show by parol the construction which the parties gave to the language used. (i. Met., 378.) Boundaries may sometimes be determined by actual occupation, ancient reputation, the admissions of the grantor against his inter- est, old maps, the lines of adjoining surveys, etc., and by other such considerations too tedious and too technical for full treatment here. (See Greenleaf on Evidence, § 145.) 6. Streams, etc. The general rule regarding monuments is that the boundary line runs to the center of them unless otherwise expressed in the deed. This is generally true of streams, rivers, creeks, and artificial ponds or lakes when these serve as monuments of boundary. At the old English law a farm bounded by a navi- gable stream extended only to high-water mark; but navigable streams were held to be only those in which the tide ebbed and flowed. All others were regarded as not navigable, as such was no doubt in almost all cases the fact in England, and farms along them were held to extend to the middle or thread of the stream. This doctrine has been adopted in America. Farms on streams in which the tide ebbs and flows extend only to the high-water mark. Farms on all other streams, no matter how large, nor whether navigable or not, extend to the middle of the stream — not necessarily to the middle of the water, but the middle or thread of the current. (9 N. H., 461 J 17 Mass., 289; 26 Wend., 404; 20 Wis., 433.) This ii JABM SDRVETING. S3 the general doctrine in America, and it has been applied to farms along the Mississippi river which are held to extend to the middle of that great stream, subject to the right of navigating its waters by the public. (39 Miss., 109.) It has also been applied to the Detroit river, farms along which are held to extend to the national bound- ary. (8 Mich., 18.) But there are a few exceptions to this gen- eral rule. For instance, it was held that the Mohawk should be regarded as in this sense a navigable stream, and that farms lying along its margins should be bounded by the lor:-water mark. (33 N. Y., 461.) And a similar rule was adopted by the courts of Pennsylvania with respect to the Monongahela and other large rivers of that State. (14 Pa. St., 120.) And also in North Caro- lina and Tennessee a similar doctrine was announced. (2 Dev., 30; I Head., 650.) The general rule being that^ farms bordering on fresh water streams extend to the thread of the current, it follows that if an island forms between the margin and the middle of the stream it belongs to the owner of the bordering farm. If the island existed there at the time the farm was sold it would not pass to the grantee for the farm would only extend down to the first thread or Jilu>n aquce, that is to the middle of the current between the island and the shore. 6. Artificial Ponds. A similar rule regarding boundaries applies to all artificial bodies of water, as mill-ponds, reservoirs, etc., as to fresh water streams. Farms bounding upon them extend to the center. (13 Me., 198; 9 Gray, 269.) It would seem but natural that if a stream be dammed up so as to turn it into a lake or large pond, that this should not interfere with the bound- aries of farms on either side, but that such farms should remain as before extending to the middle of the water. 7. Lakes, etc. But with lakes and large natural ponds the rule seems to be that farm boundaries are at low- water mark (13 Pick., 261), though there are some decisions to the effect that on our small inland lakes and ponds there is no exception to the gen- eral rule, and that farms along them extend to the center. This is the rule in Michigan. 8. The Sea. A farm bordering on the ocean or sea, or an arm of the sea, like a bay or strait, extends only to the high- water mark. The space between high and low-water mark, called the shore, belongs to the public. (3 Kent. Com., 431.) This is the law 84 UASVUj or THB LAW. exGBfit m MaM«jfeiuett», vrhere by an ancient ordinaace farnw oti the sea-ahore MCtend t« low-water mark if that is not over loo rods from high- water mark. If the owner of one of these Massacliu- scttn farms sells it and describes it in the deed as bounding en the sea, the grantee will take the land to the low- water mark; if he describee it as bounded by the shore it will extend only to high- water mark, (6 Mass., 435.) While if he uses the expression " to the sea shore," er " to the beach or sea," the grantee takes ta the low-water mark, 9. Bighways. If a farm is bounded by a public road, street, or alley, it •xtends to the middle of the way. It is almost the universal doctrine that the land in a highway belongs to the owb- ers of adjacent land, (19 Wend,, 659; 16 Mass,, 33,) And ii a farm is sold and described as bounded by a highway, or lying along a highway, it extends to the njiddle of the same unless the description clearly excludes the soil of the highway, (37 N, Y,, 624; 20 Wis,, 433.) If the land is described by lot, which lot fronts on a street, the line will extend to the center of the street, although the plan of the lot and the admeasurements extend only to the edge of the street, (10 C, B., n, s., 400.) The Vermont court held that land described as "bounding south on a high- way" extended to the centre of the road (30 Vt,, 118), and the Wisconsin court went so far as to hold that in all cases the land will extend to the centre of the road unless the road or street it expressly excluded in the deed, (4 Wis,, 33 1^) Of course the land in the highway is not of great value to the adjacent farmer, being burdened as it is with the public easement or right of travel there. But every beneficial use to which it can be put, which does not interfere with the public right of passage and of keeping the way in repair, belongs to the adjacent owners, and may be utilized by them. The trees and grass belong to them, and may be cut and carried away ; and if valuable mines are there discovered they may be worked. Then, too, if the road were ever discontinued the land in it would revert free of all incumbrances to the adjacent owners. So that it is a matter of much importance where the boundary of a street front really is. The doctrine that farms extend to the centre of the highway is applied to streets which have been dedicated but not yet opened, as well as to those which are open and in use. (2 Wall., U. S., 57.) And it is FARM suBVEima. 85 applied to streets in New York City (2a How. Pr«c., 115) and other cities of the Union. 10. Sui'TeyS. Where land is deeded according to the suryey of it, the original survey is the one that generally must govern. All of the land in this country, outside ef the original thirleea colonies, is supposed to have been surveyed by the general govern- ment, and permanent monuments fixed to determine the boundaries. And, as has been stated, it is the well settled rule that no matter how erroneous the original survey may have been it must govern j the monuments then established must determine the boundaries, even though the effect be to make one quarter section contain 180 acres, and the adjoining quarter section but 140. Parties buy with reference to these monuments, and are entitled to whatever is within them. (4 Wheat., 444; 93 111., 233.) The public lands are divided by the government survey into townships six miles square, and the townships are divided into thirty-six sections containing, as near as may be, 640 acres each. Where the deed refers to a survey the grantee takes in con- formity therewith, though the boundaries mentioned in the deed do not agree with those of the survey. (14 Mass., 149-) So, also, where the deed refers to a certain map or plan, the lines laid down on such map or plan are to be regarded as much a part of the description as they would be if expressly recited in the deed. (17 Mass., 211.) Where the boundary lines are known, the adjoining proprietors cannot change them by verbal agreement, because it would work a parol transfer of land which would be void under the statute of frauds. (4 Yerg., Tenn., 456.) But if a boundary or dividing line is unknown in dispute or in doubt, it is then proper and admis- sible for the parties to establish it by parol agreement (4 Wheat., 513), because the law always allows parties to settle their own dis- putes, ^nd an agreement of this sort respecting boundaries becomes binding upon the pa;'ties and upon the land. The peace of the community requires this rule. (26 Mich., 332.) • 11. Acquiescence. We see, therefore, from the above, that boundaries may be determined by acquiescence. Where the origi- nal line is unknown, and the adjoining owners have accepted a par- ticular line as their boundary, and all parties concerned have acqui- esced in it, and have cultiTated and rlaimed up to it, it then become* 86 MANUAL' OP THE LAW. the true boundary. And no particular time is necessary to accom- plish this. The boundary so established becomes binding though not acquiesced in for twenty years or any particular number of years. (S2 111., 49S; 43 Mich., 542.) So, therefore, if on buying a farm the purchaser finds that one or more of its boundaries have been thus settled by acquiescence, he may generally rest assured that the line so established will be held to be the correct one, and that it is needless for him to trouble further about it. 12. Meander Lines. These are lines traced along the shores of lakes, ponds, and rivers for the purpose of ascertaining the quantity of land in a section where the same is made fractional by such waters. It was these lines that determined the price of such sections when they were sold by the government, and for this reason it is perhaps natural to suppose that they form the boundary line, and that the land in front them extending out under the water, remains unsold and still owned by the government. This, as we have seen, is not generally the case. Except where such lines run along the margins of large navigable streams, or those in which the tide ebbs and flows, or along large lakes, they do not mark the boundary, for the boundary is at the middle of the stream. In small lakes which are the mere expansion of the rivers which pass through them, this rule of centre boundary has been applied. (10 Mich., 125.) But questions of great nicety have arisen as to just how the side boundaries of farms or other parcels of land shall be extended from the meandered line to the centre boundary. If the side boundaries were extended straight to the centre line it would work well enough providing the stream were straight; but, if tlie stream were curving, such a rule would make the side lines cross each other in some cases, and in others have the effect of practically cutting off the river front of some farms and of giving an undue advantage to others. It cannot be, therefore, and has not been recognized in the law. The rule which has been found to work with greatest justness, and which has therefore been approved by the courts and applied in man}' instances, is this: Extend the side boundaries or dividing lines between the parcels from the meander line to the center of the river as nearly as possible at right angles to the general course of the river at that point. This rule is applied not only to sections and other subdivisions of the govern- ment survey, but also to town lots fronting on such bodies of FAKM SUEVETINa. 87 water as carry the boundary to the centre. (28 Mich., 182.) On a circular body of water this rule would make the lines converge to the centre like the spokes of a wheel. On a very crooked stream or a very irregular body of water, this rule would be inca- pable of strict application; and it is impossible to explain here, in fact impossible to state with certainty at all, just what would he the legal rights of the riparian owners on one of our irregular inland lakes if it should dry up or be drained away. (See Angell on Water Courses, §55.) CHAPTER XI. EASEMENTS. 1. What are Easementi. ii. How Ways may be used. 2. Light. 12. Obstruction of Ways. 3. Air. 13. Tennination of Ways. 4. Purity of Air. 14. Lateral Support. 5. Water. 15. Water as a Support. 6. Water Right 16. Mining Leases. 7. Ways. 17. Side Support for Houses. 8. Ways of Necessity. 18. Party Walls. 9. Ways by Long Use. 19. Rights in Party Walls. 10. Ways by Purchase. 20. Miscellaneous Easements. Of the many rights incident to real estate, and growing out of the ownership thereof, there are few of greater importance than those which arc called, in the language of the law, Easements. It is the purpose of this chapter to set forth, as plainly as possible, a brief statement of the law governing them, to the end that the reader, if he be the owner of real property, may understand some- what his rights in relation thereto. 1 . What are Easements. An easement has been defined as a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for some special purpose not inconsistent with a general property in the owner. (3 Washb., Real Prop. 25.) The right which one owner has in the land of the other is called an easement; the burden which is thus imposed upon the property of the second owner is called a servitude. Easements and servi- tudes are then really the same things looked at in two ways. They are incorporeal hereditaments, that is, permanent rights in real property, and they are regarded in law the sairie as real estate, and pasi to the owner's heirs or assigi>» a. ♦h*. same manner. They SASSMSNTS. always involve the existence of two estates, — the dominant estattc to which the right belongs, and the servient estaite upon which the obligation rests. (38 Cal., 1 16.) A servitude thus resting upon land is an incumbrance, and in deeding such land the owner should mention it or make an exception of it, if he deeds by warranty deed, otherwise he will be liable under his covenant against incumbrances. If one buys a farm by warranty deed and finds it burdened with the obligation of maintaining an easement in favor of an adjoining farm, he may collect of his grantor such damages as that servitude causes him, if it were not excepted out of the covenants in his deed. But if one buys a farm even by quit-claim deed, all the easements v/hich are appurtenant to it will pass to him whether they are mentioned in the deed or not. Easements must not be confused with licenses, though they may both consist of the same thing ; for while an easement always im- plies an interest in the land on or over which it is enjoyed, a license carries no such interest and is generally revokable at will by the owner of the land in which it is enjoyed. (4 Sandf., Ch. 72.) Easements are of numerous kinds; in fact, it is said, they may be as numerous as the exigencies of domestic convenience and necessity, or the uses to which land may be put. But practically they are not so numerous, and we shall here only consider the more important and universal ones, namely, light, air, water, ways, and support, referring in only a general way to others which may exist. 2. liight. Light and air in many respects resemble each other. They are provisions of nature necessary to the ex- istence and well being of all mankind, and every person has a natural right to use them in any way he may think proper, pro- viding he does not thereby cause damage to other persons. Every person who owns a house or other building has the undoubted right to open as many windows in it as he pleases for the admission of light and air; and if such house or building immediately adjoins another's land, such owner cannot com- plain that the light flows in from over his property. No legal injury is thereby caused. (13 Wend., 261.) But if such windows interfere with his privacy, or if for any other reason he does not wish to have the right to an uninterrupted flow of light into such windows to be by any means acquired, he may exer- cise his superior right of building on his own land and thus may shut the light off. But when such a right to an uninterrupted MANTJAL OF THB LA.W. flow of light is once acquired, he can not interfere with it. It is then an easement which his adjoining neighbor has in his property, and the law will protect it as perfectly as though the neighbor owned the land over which it is enjoyed. At common law, and in England by force of statute also, such a right may be acquired by prescription, or long uninterrupted use. If the windows of one's building have received the light which comes across and over another's land for twenty years or more, an easement has been acquired in that land to have the light continue to flow; and the owner of the land can not erect any buildings or do any act which will intercept the flow. This is the law in England, but it exists there only in favor of "ancient lights" or old windows; so that if one has no buildings wilh windows on his land, he cannot gain the right by prescription to have the light flow on his land alone or on to anything else that may be there. In America this easement or right to an uninterrupted flow of light can not be acquired by prescription or long use. In some of the States such a mode of gainmg the right has been abrogated bj statute, and in others it has been denied by the courts. Notwith- standing some early decisions to the contrary it can not now be safely said that the doctrine that a right to light may be gained by mere prescription prevails in a single State, unless Delaware be an exception. We can not here examine the causes which brought about this change from the old law. Suffice it to say that all things considered, the change was a wise one. The only way, then, that a right to a flow of light over another's land can be acquired in this country is by giant, that is by buying it and having it properly deeded. If therefore one wishes to build his house right at the edge of his lot, he must either buy the right to an uninterrujjted flow of light over the adjoining land, or else take his chances on having the light cut off when his neighbor gets ready to build. But having acquired such a right, his flow of light cannot be interfered with; for if it is obstructed by the adjacent owner, tlie obstruction may be abated, or damages recovered for the injury. In order, however, to maintain an action for such an injury there must be a substantial privation of light, sufficient to render the occupancy of the house uncomfortable, or to prevent the owner from carryiuL;- on his accustomed business. (7 C. and P., 410.) A mere shading of the premises would not entitle the owner to any relief. EASEMENTS. 91 The disturbance of one's privacy by the opening of windows overloolving his grounds is not, as has been intimated, an injury which the law will recognize. If one is thus annoyed, his only remedy is to erect a building or wall which will obstruct the view, and this he has a right to do unless he has granted an easement in his lands to the uninterrupted flow of light over them. At the common law, if one sells a house, the windows of which receive light from over land w hich he still owns, he cannot obstruct the continued free passage of light to those windows; for he is held to have impliedly granted an easement to that effect, the windows being necessary to the enjoyment of the house. Upon this point the American decisions do not agree. The doctrine is denied in Ohio, and it is not safe to depend upon it being the law anywhere. The proper way to do would be to have the grantor of such a house include in his deed of it the easement of light over the adjoining land. 8. Ail'. The rules of law relating to the right to free passage of air are practically identical with those relating to light. The right to have it flow into one's windows or blow against one's wind- mill is, when acquired as against an adjoining owner, an easement. Such an easement cannot, in this country, be acquired by long use or prescription merely. It must be acquired by grant. 4. Purity of Air. Every owner of land has the natural right that the air which passes to his land shall not be polluted by any person, and if any person does pollute or befoul it without having gained the right to do so, he is guilty of a wrongful act. (6 Gray, 473.) Of course one has the right to pollute the air passing from his premises to a certain limited extent, for he could not keep fires in his stoves, or even use the air for breathing, if this were not the case. But, what is meant by the above rule is, that the air, being for the common good of all, may be used by each in any way which does not prevent others from deriving that common benefit, even though such use may render it a little less pure than it otherwise might have been. A right may be acquired to pollute the air which passes from the land of one owner to that of another, and such a right is an easement. An easement of this character may be acquired by pre- scription or by grant. When the air, which passes from the premises of one person to those of another, has been habitually polluted by smoke, smells, noises, vapors, water, etc., continuously MANUAL OF XHB LAW. for a period of twenty years or more, the right has probably been acquired in favor of the first owner and against the second to con- twue such pollution. (4 Bing., N. C, 138.) This is an acquire- ment of the easement by prescription. It may be acquired by grant, and a grant will, under certain circumstances, be implied. For instance, if I sell a glue factory, the odors from which flow oyer my remaining land, I am held to impliedly grant to my pur- chaser the right to have such odors continue to flow as they did when I owned it. (5 Met, 8.) After one has acquired the right to pollute the air in a certain vicinity he may be compelled to cease to do so, or to move on, if by reason of the increase of population near by it becomes dele- :erious to the public health. 6. Water. In respect to the rights which the owner of lands abutting on a stream of water, or through which a stream passes, a distinction is made as to whether the stream is a natural or an arti- ficial one. A natural stream or water-course is one which arises at its source from natural causes and flows in a natural and well- defined channel. An artificial stream is one that arises by the agency of man, or if arising from natural causes, flows through a channel made by man. In natural streams all persons owning land upon them have certain natural rights as below described. In artificial streams no such rights exist. Similar ones may be acquired in them, and when acquired they are easements. Natural rights in natural streams cannot be interfered with without liabilitj', unless a right has been acquired to do so. Such a right is an easement. 6. Water Rights. These are called Riparian rights. Land bordering on natural streams is called riparian land, and the own- ers of it riparian owners. Every riparian proprietor has the right (unless he has lost it) to have the water continue to flow in his stream as it would do by nature. First, he has the right to have it continue to come down from above without marked diminution or appreciable increase in vol- ume. The owner above can, of course, make such reasonable use of the water as his domestic necessities may require, and he can increase it by the drainage of surface waters from his farm; but further than that he cannot go unless he has acquired the right to do so. In the second place, a riparian owner has the right to have the water flow down in its naturally pure condition without being in EASEMENTS. 93 any way polluted or befouled, and also to flow in its natural chan- nel without being diverted from its course. In the third place, a riparian owner has the right to such reason- able use of the water as his domestic necessities and convenience may require. That is to say, he may use it for watering his stock, supplying his household, irrigating his land, turning his water- wheels (see Chapter XI for limitations on this), and for any other purpose which will not interfere with his neighbor's rights below. Lastly, a riparian owner has the right to have the water flow down the stream below him in its natural manner and in its natural channel without being impeded or set back by the lower owner. These are his natural rights. If the owner above or below has acquired the right to interfere with any of them, such right, if permanent, is an easement. Easements of this kind may be acquired by prescription or by grant. If a riparian owner has for a period of twenty years or more, continuously and under a claim of right, dammed the water of his stream back upon the land of his neighbor above, or if for a like period and under like circumstances, has turned the refuse of his dye-house into it, or has otherwise polluted it so as to render it unfit for the domestic use of his lower neighbor, or has used all the water of the stream, or has diverted it from its natural couree and turned it on to his neighbor below in a different place from where it would naturally enter, if he has done any of these things, or anything else of a similar nature, for such a period, adversely, and under claim of right, then he has gained by prescription an easement in the stream, and he may continue such use of it, and the right passes to whoever becomes the owner of his land. As to surface waters the rules of law are quite different. These may be defined as being all waters not contained in natural water- courses, that is — all that falls as rain or comes from melting snows, all that oozes from the ground but does not flow away in a natural channel, all that comes from the eaves and all that may be con- ducted on to one's premises by artificial means. These belong absolutely to the owner of the land on which they happen to be. No one else has any rights in them, and the owner must take care ©f them as he does of his other property. He must dispose of them on his own premises, for he cannot collect them in drains and turn them upon his neighbor's land, unless he has gained the right to 8 94 MANUAL OF THE LAW. do so, and such a right would be generally an easement. He cannot even allow his eaves to drip on another's land unless he has gained the right to do so either by grant or prescription. ( loi Mass. 539.) Nor has he any right to surface waters on adjoining land which percolate through the soil and so supply his wells, etc. His neighbors have the right to drain their lands, though the effect may be to make his wells go dry. [62 Me., i75-) The matter of water rights and drainage is one of too great importance to be fully considered here. The reader is referred to the chapter next following. 7. Ways. A very important class of easements, known as rights of way, are the rights which land owners have, in some cases, of passing over other persons' land for the purpose of getting to or from their own premises. Where the owner of a piece of land has the right by reason of such ownership of crossing the land of an adjoining owner, he has an easement in such land which passes to whoever succeeds him in the ownership of his land. Where a person who is not the owner of real estate has the right to pass over another's land, or where he possesses such a right not because of his ownership in adjoining land, such right is called an easement in gross. This is very like a regular ease- ment, except that it cannot be sold or assigned by the owner, and does not pass to his heir. Highways are in this last sense fuhlic easements, the rights of the public in them being very similar to the rights of owners of private easements of way. Rights of way are public and private. The former include high- ways and are treated of in Chapter XIII. The latter include foot ways, carriage ways, and drift ways. The grant of a "way, with- out specifying what kind of a way, has been held to mean a way for all purposes. (Com. 114.) The grant of a " carriage way " was held to include the right to use the way for foot travel ; but a foot- way cannot be used as a carriage way, nor can a drift way (which is a way for driving cattle) be used as a carriage way though it may be used for the passage of teams. (41 Me., 320.) How Ways are Acquired. Easements of way over land may be created by express grant, that is by being purchased and deeded like any other interest in real estate ; or they may be acquired by prescription or long adverse use, which in theory supposes an ancient grant which has been lost; or they may be created b, necessity-. EASEMENTS. 95 8. Ways of Necessity. A way of necessity arises where one sells land to which there is no other means of access except over land which he still owns. For example: If I sell the back part of my farm and there is no way of getting to it without going over the land of a stranger, except by crossing the front part, a way of necessity arises in favor of my grantee ; he has, by reason of that fact, an easement of way over the land which I reserve. (23 Pick., I02.) As to what degree of necessity will create a right of way the rule is that it must be absolute. There must be no other possible legal way by which the grantee can get to his land. Consequently where a man sold land which was surrounded on on all sides by water except the side which he reserved, and there was no means of access to it by land except over the grantor's land, it was held that such a necessity would not create a right of way over the grantor's land. The grantee could get to it by water. (3 Mc- Cord, 131.) Convenience is not the test; there must be an abso- lute necessity. (27 Verm., 460.) The same rule applies, as to ways of necessity, if you sell the front part of your farm, reserv- ing the rear portion, to which there is no means of access except over the part which you have sold. You are held to have retained the right to cross such land, though your deed said nothing about it, but on the contrary said the land was free and unincumbered. (4 Gray, 297.) A right of way is a right to pass over another's land in a par- ticular line. A right to pass over in any direction or all directions is not an easement, and cannot be acquired by prescription. (11 Gray, 246.) When a right of way is created by necessity the person over whose land it passes must designate the line on which it shall run, as soon as requested by the owner of the way. And he must do so in a fair and reasonable manner, though he may pick out such a line as will least inconvenience himself. (24 Barb., 44.) If he does not do so on being requested, the owner of the right may select a suitable route for the way, and having once selected it he cannot make a change. (24 Pick., 102.) A way of necessity terminates as soon as the necessity which occasioned it is removed. (18 Conn., 321.) Consequently where one owned a mill to which there was a private way over another's land which was used as a way of necessity, and the highway som- MANTJAL OP THE LA.W. naissioners after a time opened a public road by the mill which gave free access thereto, it was held that the private way was thereby terminated. (47 N. H., 230.) 9. Ways by Immemorial Use. Rights of way may be created by prescription, that is by continuous, adverse use for twenty years or more. The use must have been continuous, not necessarily every minute of the time, but practically continuous according to the cir- cumstances of the case, and without any abandonment or entire interruption for twenty years or more. It is not necessary that the use be by the same man during the whole period. If successive owners of the land so use it for that period the right will accrue, (2 Allen, 277.) The use must have been open, notorious, peace- able, without license, and it must have been adverse or against the owner's interests and without his permission ( 24 Pick., 106.) If it were secretly or covertly used, so that the owner could not know about it, no right would accrue; or if it were forcibly used, or against the owner's protests (11 Gray, 148) it would avail nothing, no matter how long used. Likewise if used by permission, as for a rent paid, nothing would be gained. (13 N. H., 360.) And the use must be always under a claim of right. So important is this that the New York court said: "A single lisp of acknowledg- ment by the defendant that he claims no title, fastens a character upon his possession which makes it unavailable for ages." (17 Wend., 564.) And if it complies with all the above conditions the use must have been of a way in some regular and defined line. No right can be acquired by prescription to wander over a man's farm in any manner or direction that the party's whim or con- venience may suggest. That can give no rights at all. (5 Pick., 485.) 10. Ways by Purchase. Rights of way may lastly be acquired by grant or purchase. In order to gain a permanent right by this method the grant must be by a regular deed, duly executed, signed, sealed, delivered, etc., with all the formalities required in a deed of land. An easement being an interest in real estate cannot be created or transferred by mere oral agreement. If the right were given only verbally, though duly paid for, it would amount to only a license, subject to be revoked. (2 Allen, 578.) Where a right of waj' is given by grant, and the deed does not specify the location of the way or the line on which it shall run, the selection of the line is then left to the grantee or owner of the EASEMENTS. 97 way; and it is his duty to make such a selection as will be of least detriment to the owner of the land over which it goes. (3 Burge Col. and F. Law, 441.) 11. How Ways may be Used. If the farmer finds that his neighbor has a right of way across his farm, or if he thinks of sell- ing such a right, or of buying one across his neighbor's farm, it is important to know to just what uses such a way may be put. And first, it is to be observed, that if the way was granted for any special purpose it cannot be used for any other purpose. {31 N. Y., 366.) Thus the grant of a way " on foot for horses, cattle and sheep," does not autho'^ize the use of it for carrying manure in a wheel barrow. ( i Q. B., 792.) The grant of a way " for agri- cultural purposes " does not include the right to draw coals over it nor to transport lime from a quarry. (Hqlt, N. P., 455.) But where a general right of way is granted, or acquired by any other means, it gives the right to use the surface of the soil on a -par- ticular line for the purpose of passing and repassing, in an orderly and reasonable tnanner, by any proper and customary method, and also the right to properly fit the soil for such pur- pose, by leveling, grading, graveling, etc., or such other means as the necessities of reasonable use may require. (3 Met., 457.) The owner of the w^ay may, of course, keep it in repair; but he can do nothing more than this. He does not own, and of course cannot take away any of the soil, stones, etc., that may be lying in the way (9 Allen, 164), though he may use them for preparing or repairing it. (44 N. H., 539.) It is usually the duty of the owner of the way to keep it in repair (12 Mass., 65), but the owner of the soil may use the way, and may agree by covenant to keep it in repair, or he may be bound by the terms of his deed or by prescription to do so. (12 Mass., 65.) The owner of the land over which the way passes is entitled to every reasonable use to which the way or the soil under it may be put, which does not interfere with the right of passage and repaii which belongs to the owner of the way. (24 Pick., 71.) He may maintain a fence or fences across the way if he sees fit to, pro- vided he places suitable bars or gates for the convenience of the owners of the way (31 N. Y., 366), and the owner of the way must open and close the same unless an open way was expressly granted. (44 N. H., 339.) He may even put a building over and tx oss the way if he leaves an archway through it large enougfa 9* MANUAL OF THE LA"W. to admit of the free passage of its owner with any reasonable load of materials that he may have need to carry. (2 Met., 457.) He may sink a drain under it, whether it be a private or public way, provided he does not interfere with the easement (6 Mass., 454); and he may maintain trespass against any one who injures it or trespasses upon it. (8 Allen, 467.) If the way gets out of repair so as to become impassable, the owner of the way has no right to travel outside of the limits of the way in order to get around the impaired part. His business is to fix the way so that he can use that instead of going on to other land. (31 N. Y., 372.) In this respect a different rule applies to public ways. If they become impassable the public has the right to enter upon adjacent land in order to get around the barrier. (44 N. H., 631.) But they must occasion no unnecessary injury to such adjacent land in so doing. (7 Barb., 309.) If the owner of the land unlawfully obstructs a private wav the owner of the way may then pass over adjacent land to avoid the obstruction (53 Me., 162), though a New York court held that an obstruction so placed there would give the owner of the way no right to deviate from the way, his remedy being either to abate the nuisance or to bring an action for damages. (7 Barb., 309.) As to how wide a right of way should be, the rule is that if the matter is not settled in the grant, by having the way specifically defined, the way need only be such as is necessary and convenient for the purposes for which it was granted. If the grantee has been using a very broad way, the grantor or owner of the soil may narrow it, or put buildings upon it, so long as he leaves it of suffi- cient width for the grantee's legitimate use. (2 Pick., 291.) If a dominant estate, to which a right of way is appurtenant, is divided, the owner of each part has the right to the use of the way, (15 Minn., 142.) Thus if I, as owner of my farm in Utopia, have the right to pass to and from it over my neighbor's land, and I leave the farm to my two sons or sell it to two men or a dozen men, each will have the right to the use of the way. This might work quite a hardship if I were to divide my farm into a great many small lots and sell them to as many different men, each with large families. What was originally supposed to be a way for my individual use might become really a thoroughfare over which hundreds of people have the right to travel; but such is undoubtedly the law. (i Cush., 285.) But this rarely occurs. EASEMENTS. $9 13. Obstruction of Ways. If a way is obstructed unlawfully by the owner of the land over which it runs, the owner of the way may remove the obstruction if he chooses and can do so peace- ably, or he may sue the owner of the land for the damages caused by the obstruction, and if the owner persists in obstructing, he may get a perpetual injunction restraining him from interfering with the way. If any stranger obstructs the way, it is a trespass; and he may be proceeded against accordingly by either the owner of the way or the owner of the land. 13. Termination of Ways. Rights of way may be termi- nated in several ways. A way of necessity ceases or the right to it terminates, as we have seen, the moment the necessity which occasioned it disappears. (47 N. H., 230.) If the necessity return it is doubtful if the way would revive. Probably it would not. ,(9 Gray, 421.) The union of the two estates in the same proprietor destroys all easements. (108 Mass., 203.) That is to say, if the owner of the right of way should become the owner of the land over which the land passes, the way would cease to be an easement, but would become an ordinary property right. The subsequent sale of eithei of the estates would not revive the easement. (16 Gray, 471-) Abandonment of the way will work an extinguishment of the right under many circumstances. If the owner of the way declares that he abandons it, that ends his rights; and if he ceases to use it that may have the same effect. Mere failure to use a right of way which has been acquired by grant will not, how- ever, of itself amount to an abandonment, unless there was an adverse enjoyment of it by the owner of the land over which it ran. (112 Mass., 231.) A right of way may terminate by agreement of the parties, that is by formal release of the right. 14. Lateral Support. Every land owner has the right to have his land supported in its natural position by the adjoinmg land of his neighbors. This is a natural right; and if any one of the neighbors removes this natural support by digging away the adjacent land, or by making excavations near the line so that the land is allowed to fall from its natural position, such neighboi becomes liable for the damage so done. (122 Mass., 199.) But this right to support afforded by adjacent land extends only to the land which is supported, and does not include the right to MANUAL OF THE LAW. have any buildings, or other weighty improvements, which the owner may place thereon, supported also. So that should the support be wrongfully removed and the land fall from its natural position, damages could be recovered only for the injury to the land, and nothing could be recovered for the injury to any -building that might be on it. That is to say, the natural right of lateral support extending only to the land supported, a man cannot add to his natural right, or increase his neighbor's burden, by placing buildings or other weighty objects near the line. Of course he can place them there if he sees fit, but if they fall when his neigh- bor removes the lateral support, he can not recover any damages for them. If one is not content to enjoy his land in its natural condition, but wishes to put large or heavy buildings directly upon the edge of it, he must either make an agreement with his neigh- bor to have them supported laterally, or else lay his foundations so deep or take such other precautions as will insure their safety, no matter what excavations his neighbor may afterwards make on his _own land in the exercise of his rights. But it is said that a right or easement to this additional lateral suppoit which a building near the line may require from adjacent land, can be acquired by prescription or uninterrupted use for twenty years or more. So that if a building has so stood for twenty years, the adjoining land has become burdened not only with the lateral support of the land, but of the building also. Such is the English rule, and such is the doctrine laid down by American text writers. But it is doubtful now whether such is the law in this country, and it would at any rate be safest if one wishes such an easement to get it by purchase from his neighbor. (49 Ga., 19.) Subjacent Support. What has been said regarding adjacent support is true also of subjacent support, or the support which land receives from the rocks and other minerals underneath it. The owner of land has the right to have it supported in its natural position by that which lies below, so that if one man owns the surface and another the subsoil or the mines underneath, the latter cannot remove the support naturally afforded by his land to that above it without rendering himself liable for the injury caused. {66 Penn. St., 430; 80 Id., 81.) }f, therefore, the farmer sells the coal mines that may underlie *is farm, the purchaser must see to it that in excavating for and removing the coal he does not disturb the support to the land above. EASEMENTS. ^oi He may change the natural support, and substitute artificial props, piers, arches, or the like; but they must be permanent and sub- stantial, and must furnish the same absolute support that the natu- ral substrata did. (Bell v Reed, 31 Legal Int., 389.) But this right of subjacent support like the right of lateral sup- port, extends only to the land supported, and does not include the right to have buildings so supported unless such additional right has been specially acquired in some way. This is perhaps the best way that the law of the subject can be state's generally. There are some exceptions to it. For instance, an implied right to sup- port arises in favor of any buildings that may be standing upon the land at the time the subsoil is granted. (2 Allen, 131; 122 Mass., 199.) 16. Water as a Support. Where underground waters afford the support for overlying land, the owner of such land has no natural right to the support so afforded, and if the subsoil is owned by another party he can drain that water off, though it cause the land to subside somewhat. (38 L. J. Exch., 126.) But if these underground waters support surface w^aters which lie in a defined body or stream, then they cannot be removed without liability. (L. R., 6 Ch. App., 483.) When any right of support, which does not exist as a natural right, is acquired by any means, it is an easement. So when a right is acquired to interfere with any natural right of support, such right is an easement. Easements of support are acqiiired by grant and by prescription. Grants of easements of this sort are often implied. If the farmer sells his farm, reserving the mines underneath it, he impliedly sells the right to support of that farm and the buildings standing upon it at the time, but not to any additional buildings that may be put upon it. Likewise if he sells the mines under his farm he impli- edly reserves similar rights of support. [66 Penn. St., 429.) If anything further than or different from this is desired it must be expressly granted or reserved in the deed. 16. Mining Leases. These are grants generally for the express purpose of removing the subjacent soil, and it is customary to specify in them the respective rights of the parties in regard to the removal of support from the surface soil. But it seems that if there is nothmg said upon this point that there is in the case of these leases an exception to the general rule that the surface must '02 MANUAL OF THE LAW. be supported, and that the lessee in the absence of any agreement to do so is under no obligation to leave any support whatever for the surface soil. (Goddard on Easements, 223.) 17. Side Sxipport for Houses. The owner of a house may acquire the right by grant or prescription of having it supported by an adjoining house, and this right is an easement. If a man builds two or more houses together, constructed in such a manner that each requires the support of the other, and then sells one of them, or sells them to different parties, a right to have this mutual support continue becomes incident to the property; the law pre- sumes a grant of this easement in favor of each house. (15 N. Y.,6ii.) The owner of such a house cannot remove it or tear it down without shoring up the other building, or otherwise replacing the support which his building afforded. But no easement of support arises as in favor of one building against another because the two happen to be standing in juxtapo- sition, no matter how long. Nor does it arise if one building totters over and leans against another which stands erect. (5 Rich., 311.) Notwithstanding this one should not recklessly or negligently take down his own building in a way to cause injury to his adjoining neighbor. He must be careful how he does such work, and must give his neighbor notice of what he intends to do, so that such neighbor may have opportunity to protect his premises by props and guards, otherwise he may be liable for the injury caused. (22 Mo., 566.) 18. Party Walls. These are walls built on the line between two adjoining owners, and are generally owned jointly by the twa proprietors and are for their common use. Party walls usually come Into existence by the mutual agreement of the parties, or under the operation of local statutes which have been enacted in many of the States regulating this matter. These statutes some- times provide that where one wishes to build on a city lot, for instance, he may build the wall half on the adjoining lot, and when his adjoining neighbor gets ready to build he may make use of half the wall by paying half its cost. If one owner builds two houses or stores with a common wall between them, and then sells one of the buildings, the wall becomes a party wall. It may be said that whenever two buildings stand together with only onr wall between them into which they are both built, and from whicli EASEMENTS. I03 they both receive support, such wall is presumed to be a party wall, and the rights accruing from such a wall will appertain to it unless there is some clear showing to the contrary. (4 Johns, Ch. 334.) And when such a wall needs repairing or rebuilding, it is the duty of each party to contribute an equal share of the expense. (15 N. Y., 601.) 1 9. Rights in Party Walls. When a party wall once gets into existence the following are as near as can be stated the respec- tive rights of the parties in it: Each party has the right to the support of his building, the joists, roof, etc., on the party wall ; and this right continues as long as the wall remains sufficient for that purpose or the building continues to need such support. If one of the buildings becomes dilapidated, and to repair it necessitates a tearing down of the party wall, the owner may, after reasonable notice to the other party, take down the party wall and erect a new one in its place which will provide the same or better support than the old one. And if he takes no unreasonable time in doing this and uses due skill and care, he is not responsible for the injury he may have caused the other party by reason of his building being exposed to the weather, or his loss of rent or intermission of business. But if the house is not dilapidated or the party wall needs no repair, the owner simply wishing to build his part higher or make other additions to it, then he must do so at his peril and be liable for any injury he causes the other party. (15 N. Y., 601.) 20. Miscellaneous Easements. Though the above are prac- tically the only easements commonly met with, many others may exist, and some are clearly recognized. Still the law will scrutinize any novel right of this sort which may be granted by a land owner, and will not attach to it all the incidents of an easement, so that it will become binding on his heirs and assigns forever, unless it seems clearly proper and best that this should be done. The policy of the law is decidedly and properly against allowing novel modes of holding real estate, or of permitting fanciful interests in lands to be created. Of course, a grant of any sort of an interest of this nature is perfectly valid and binding as against the grantor and between the original parties to it; but it is doubtful whether it would partake of the full nature of an easement so as to become binding on subse- quent holders of the grantor's land, or to pass to the heir* or assigns of the grantee. I04 MANUAL OF THE LAW. Among the few other rights which the courts have adjudicated to be easements are that of piling logs and lumber on land for the accommodation of a mill; the right of floating logs in a private stream (24 Mich., 284), which right is given to lumbermen by statute in Michigan and other lumbering States ; and also the right to lay gas pipes through another's land {38 Mich., 154), which is" similar to the right to lay and maintain a drain there. CHAPTER XII. OP WATER RIGHTS AND DRAINAGE, 1. Conditions in which Water Exists. 8. A.rtificial Water- Courses. 2. Brief Statement of General Rule. 9. lublic Drains, etc. 3. Streams or Natural Water- Courses. 10. Surface Waters. 4. Rights in a Water-Course. 11. Underground Waters. 5. Use of Water for Running Mills. 12. Right to Eaves Drip. 6. Acquirement of Mill Privileges. 13. Right of Passage in 7. Use of Water for Irrigation. Streams. The matter of the rights and duties of a land owner, in connec- tion with the water that may flow through or be upon his land, is one of such importance that in addition to what was stated upon the subject in the chapter on Easements, it seems well to give the following review here in a chapter by itself: 1. Conditions in whicii water exists. With respect to the condition it may be in, water will be found to exist in three forms, namely, as running streams, surface waters, and underground waters; and the lights of a land ow^ner therein will be found to depend largely upon which of these conditions the water may be in, 2. Brief Statement of General Rule. Briefly stated a land owner has the right to have a running stream or natural water- course remain as nature made it, without being interfered with by the owners above or below him. Surface waters, like the soil of his land, are his, and he may do as he pleases with them; but he has no right to drain them upon another's land, while the waters under the earth follow one or the other of the above rules accord- ing to whether or not they are known to exist there as well- defined underground currents. to6 MANUAL OP THE LAW. It becomes necessary, therefore, to define, with accuracy, thes* different conditions in which water may exist. 3. Streams or Natural Water-Courses. A natural water- course is a strea?n of water flowing in a defined channel, and having well-defined banks or sides, and discharging itself into some other body of water. (9 Cush., 171; 26 Penn. St., 407.) Its size is unimportant. It makes no difference how small it is, nor is il necessary that its flow be constant. But it must be something more than mere surface drainage over the face of a tract of land, or a flow of water occasioned solely by some extraordinary cause, as the melting of an unusual fall of snow or a very heavy shower. All creeks, brooks, rivers, and streams having a continual flow are water-courses ; but swales, marshes, ponds, and stagnant pools are not. Where water rose from a spring and ran off for a few rods in a well-defined channel, and then came to marshy ground where it spread out considerably, but still flowed sluggishly in a depression, but not with sufficient current to break down the grass till it reached another's land, who had a watering place in it for his cattle, which was supplied by this water, the court said it was a water-course, and that the upper proprietor had no right to stop its flow. (II Cush., 195.) 4. Rights in a Water-Course. The owner of land, through which a water-course flows, has the right to have it continue to flow substantially as it would do by nature, without being unreason- ably diminished or befouled by the owner above him, or set back by the owner below him. He has the right to put it to all reason- able and proper uses for domestic purposes, watering his cattle, or supplying power to his mill, his use in all these respects being limited to what is reasonable. (50 Me., 604.) As to what is a reasonable use will depend upon the circumstances of each partic- ular case. No general rule can be laid down for all cases. Any use which prevents the lower proprietor from making a reasonable use of the water will be unreasonable. If the stream were a very small one it would be unreasonable, and hence unlawful, to throw the refuse of a dye-house into it so as to pollute the waters as they flow down, (i Washburn on Easements, 288.) On the other hand, if the stream were larger this might be a proper use. (44 N. H., 584.) On very small streams or in times of drouth, the rule seems to WATEE EIGHTS AND DEAINAGE. lO? be that each proprietor may use what water is necessary for those absolutely necessary purposes, such as supplying his household and watering his cattle. He may do this even though it takes all the water in the stream. But he cannot use any aside from what these natural wants require if it diminishes the water to the detri- ment of those below. (3 Scamm., 492.) He cannot, under such circumstances, use the water for irrigating or manufacturing pur- poses. Such is the rule laid down in Illinois, followed in Califor- nia, and aflirmed in Texas and Pennsylvania. (31 Texas, 335; 68 Penn., 123.) If the upper proprietor put the stream to unreasonable use, divert it, befoul it, or diminish it, except in the case above stated, he is liable to an action for the damage occasioned, or to an injunc- tion restraining him from continuing it. As one has the right to have the water flow down to him in its natural state from the upper proprietor, so he has the right to have- it continue on its course, and to flow down unobstructed on to the proprietor below. Consequently, the lower owner cannot dam it back without becoming liable for the injury. (3 Verm., 308.) Of course, if the stream below becomes clogged or obstructed by natural causes, as by a deposit of leaves, and the water sets back upon one's land, he has no remedy but to clear the stream, and he has an implied license to enter and do this, and such obstruc- tions may be left on the bank of the stream. (21 Pick., 341.) These are the natural rights that the land owner has in the stream passing through his land. He may acquire others or lose these by grant or adverse use. When so acquired or lost they become ease- ments, as was explained in the chapter on that subject. 6. Use of Water for Mills. We have seen in the precedin;^ section that one may use the force of water flowing through his land for the purpose of propelling his machinery. The same gen- eral rules apply in this case as in those above indicated. The mill owner may put a dam across the stream for the purpose of getting a head of water, but he must not thereby back the water on to his upper neighbor's land without permission; nor can he unreasonably interrupt the flow of water on to his neighbor below. A right to do both of these things may be acquired by long use. In most States at least twenty years, or it may be acquired by purchase. In the latter case it must be conveyed by deed, as it amounts to an interest in land. If such a right be granted orally it amounts to a mere license, revocable at the pleasure of the giver. «»8 MANUAIi OF THE LAW. If the stream will only supply the natural wants of those living along its course, no one of them can apply it to any artificial pur- pose, as the turning of a mill. An important question often arises as to whether the first occu- pant of a mill site gains any rights by reason of such priority, which would prevent others above him from erecting dams across the stream. Though there is conflict of opinion, the general doctrine is, that such prior occupancy gives no rights. Mill owners have no rights beyond those of any other owners along the stream. That is, their rights to use the water are to be measured by the same rule of reasonableness as applies to other persons. While a mill owner has the right to flow his own lands up to the line of his neighbor, he must, in constructing his dam, take into account the annual floods or freshets which may occur in the stream, and must see to it that these floods or freshets do not raise the water above such line. But this extends only to those periodical freshets which he can anticipate, and not to any unusual or extraordinary flood, or breaking away of an upper dam. (9 Watts, 119.) 6. Acquirement of Mill Privileges. The right to set the waters of a stream back upon the lands of an upper proprietor may be acquired by adverse enjoyment for a term of twenty years or such period as is prescribed by the statute of limitations of the State wherein the mill privileges are situated. By a continuous and uninterrupted use for such period the mill owner acquires an easement or right to obstruct such stream to the extent to which it has been enjoyed. (102 Mass., 454.) Such a right may also be acquired by purchase, as above indi- cated, and where parties cannot agree for the purchase of such a right, or where owners refuse to sell such a right, there are statutes providing for taking of the land for mill privileges under the right of eminent domain. These statutes are similar to those which provide for the taking of land for railways or other public uses. It must be made to appear that the proposed mill is in some sense a public necessity, otherwise these statutes will not apply. Such statutes are always strictly construed, and must be followed to the letter, 7. Use of Water for Irrigation. The use of water for irri- gating lands comes within the class of artificial, rather than natural, uses; and whether or not a man can divert the waters of his stream for this purpose, depends upon whether it will deprive lower pro- prietors of reasonable use of the water in its natural channel. If WATEK EIGHTS AND DRAINAGE. 109 it does interfere with such reasonable use,, it cannot be taken for such purpose. As to what is a reasonable use depends upon the circumstances, and is to be determined by a jury. (11 Cush., 191; 12 Wend., 330.) 8. Rights in Artificial Water-Course*. The streams thus far spoken of have been such as exist by nature; but with respect to streams that are artificial in their construction the rules above laid down do not apply. Artificial streams generally belong entirely to the person who makes them. For example: Suppose my farm has no natural drainage outlet. I obtain from my neigh- bor who owns the land between mine and the river the right to put a drain or artificial water-course through his land. Such drain when constructed is mine. My neighbor has none of the rights in it that he would have were it a natural water-course. I may stop the water whenever I please, or flow it down at intervals, or roil it, or beioul it, and he cannot complain, so long as I do not commit a nuisance or violate the terms of the agreement under which the drain was constructed. 9. PaWic Drains, Town and County Ditches, etc. We have seen that there is no natural right on the part of a land owner to drain his lands upon or across the lands of an adjoining owner. If there is no natural outlet for his drainage he must, if he desires to drain his land, procure from the owner of land intervening between his and the natural water way the right to make one. It may happen that this cannot be done. The parties may not be able to agree; or it may happen that there is a large tract of low land belonging to several owners, which has no good natural drainage outlet, or there may exist large swamps and low marshy places which for the health of the community should be drained. For the purpose of supplying these necessities there are in most of the States fublic drain laws, by virtue of which large artificial water- courses are constructed at public expense. The benefits which have been derived from the operation of these laws can hardly be estimated. In Michigan alone many thousands of acres of her best lands have been thus reclaimed from a nearly worthless con- dition of low-land or swamp. The details of these statutes, of course, cannot be given in this treatise. In brief, they provide for the appointment or election of an officer called a " Drain Commis- sioner," who has the general supervision of the construction of public drains. When it is desired to construct a public drain, lio MANUAL OF THE LAW. any five or more freeholders residing or owning land along its proposed course, may make application to the commissioner, who proceeds at once to examine the line of the proposed drain. If in his opinion it is necessary for the public good that the application be granted, he proceeds to carry out the provisions of the law for the construction of the drain. The reader who is interested in this subject should study carefully the statutory provisions of his State relating to it.* 10. Rights in Surface Water. By surface water is meant not only that which comes from falling rains and melting snows, but also that which oozes out of the ground from springs or marshy places and finds its way over the surface. If it becomes collected into a defined stream with a bed and banks, it loses its character as surface water; but until it does so, it belongs abso- lutely to the owner of the soil, and he may do with it what he pleases. If surface waters naturally find their way, by percolation, upon the lower lands of adjacent owners, such owners may prevent such flow by raising their lands or by building dykes, without liability. Or, if one, by raising his land, causes the surface water to settle upon adjacent lands in a manner differently from what it originally did, he is not liable for the injury resulting; in other words, there is no principle which will prevent the owner of land from filling up the wet and marshy places upon it, though such filling may put an end to its being the receptacle of the surface waters of adjacent lands, or may cause the waters that fall upon it to find their way upon such adjacent lands. (29 N. Y., 467.) But surface waters cannot be collected into a drain and turned upon a lower proprietor without liability. If it is necessary to do so, permission must be obtained from such proprietor to run the drain through his premises, and such permission should be given in writing duly signed and sealed, in which case it will be an ease- ment. If such proprietor refuses to give such an easement the only recourse is a petition to the drain commissioners or proper *The Michigan statute relating to public drains constitutes chapter 40 of Howell's Statutes, commencing at page 474. The State of Michigan has published for dis- tribution to officials a book relating to the duties of township officers by Judge Green of Bay City. In this book the duties of Drain Commissioners are very amply set forth. Every such official should carefully study it. The book may be got from the county cl«rk, and should be in the office of every township clerk. WATER BIGHTS AND DRAINAGE. 1 1 1 officials for the establishment of a public drain as heretofore set forth. 11. Rights in Underground Waters. In underground waters the law does not seem to recognize any rights unless they flow in a well-known and well defined channel. (43 N. H., 573.) Consequently, if in digging a well upon your land you tap the veins which supply your neighbor's well, or cut off the supply of all the wells in the community, you are not liable for the injury. (18 Pick., 117.) 12. Rights to Eaves Brip. A land owner has no right to so erect a building as that the drip from its eaves will fall upon his neighbor's land, though it seems that he may acquire the right by prescription, or by grant or license. The right to have water drop from a roof upon another's land does not include the right to collect such water in a spout or gutter and discharge it upon such other's land; and it seems that one has no right to discharge his eaves drip so near the boundary line that it will flow into his neigh- bor's cellar. (15 Barb., 96.) 13. The Right of Passage on Streams. At the English common law streams in which the tide ebbs and flows were regarded as public, and the public had the right to navigate them. In this country any stream which is capable of being put to prac- tical use for purposes of navigation is regarded as so far public, that it may be used for that purpose. (8 Mich., 18.) Thus logs may be floated on any stream which will carry them. (43 Maine, 150.) This rule extends only to streams which in their natural state are capable of valuable floatage, but not to those which may be so used only during floods or by artificial means. (28 Ind., 270.) CHAPTER XIII. OF RIGHTS IN THE ROAD. 1. What Is > Highway? 2. How Roads may be Used. 3. Travel with Teams. 4. Which way to Turn. S- Crossing a Road. 6. As to Passing. 7. Horseback Riders. 8. Foot Passengers. 9. Rate of Speed. 10. Vehicles must be Roadworthy. 11. Stopping by the Roadside. 12. Leaving Horses Untied. 13. Fractious Horses. 14. Misconduct in the Itoad. IJ. Obstructions and Nuisances. i6. Abatement of Nuisances. 17. How Roads are Made. 18. By Legislative Autliority. 19. Right of Eminent Domain. 20. By Dedication. 21. By Prescription. 22. Repair and Maintenance of Roads. 23. Liability for Failure to Repair, 24. Discontinuance of Highways. The farmer makes so much and such constant use of the high- ways leading to and from his farm that it seems proper to consider his rights and duties in them here in connection with rights upon his own land, rather than defer the subject to the latter part of this book where personal rights and liabilities are considered. 1. What is a Highway? A highway is defined as a road which every citizen has the right to use (16 Mass., 33), and the term is applied not only to ordinary streets and roads, but also to toll roads, railroads, canals, and navigable streams. In this chapter, however, the law of the subject will be considered with reference only to our ordinary public roads, first setting forth what should be the proper conduct of persons using them, and then touching upon the matter of their construction, maintenance, and the ways in whfch they may be discontinued. 2. How Boads may be Used. Roads may be used by all per- OF EIGHTS IN THE ROAD. 113 sons for the purposes of travel, in an orderly and proper manner, either on foot or by any reasonable mode of conveyance. Gener- ally stated, the law gives to the public the right to pass and repass through the highway in an orderly manner, and to keep the way in repair. Of country roads this statement of the law is perhaps strictly true. The public has no other right in them, save that of travel and repair; but in the streets of cities and villages the public has somewhat larger rights. Under proper municipal authority the public may put such streets to other uses besides those of travel, uses which are necessary for the comfort, health, and pros- perity of the community, like the laying of water mains, gas pipes, drains, sewers, etc. (15 Barb., 210.) But the individual has but little more than the right of travel. He must travel in a customary or at least a reasonable manner, either on foot, horse- back or in any vehicle drawn by animal power. As to whether he could travel there with a steam road carriage or a self-propelling farm engine depends upon whether such a use of the road is reasonable. At the present time travel in highways by such means cannot be regarded as improper or unreasonable. The develop- ment of civilization necessitates gradual innovations of this sort. (114 Mass., 350.) Nor is it longer unlawful to proceed along the highway with an elephant or a train of wild animals, and if one's horse gets frightened at such things he has no remedy against their owner. (38 Barb., 14.) In Michigan the court held that persons using horses for travel on the highways have no superior rights over those traveling by other permissible means, and that the fact that a horse was fright- ened by a steam road engine is not of itself sufficient to render the owner of the engine liable for the injury resulting. The steam engine in the highway is not necessarily a nuisance. (34- Mich., 212.) The Illinois court uses this language: " To say that a new mode of passage shall be banished from the streets, no matter how much the general good may require it, simply because the streets were not so used in the days of Blackstone, would hardly comport with the advancement and enlightenment of the present age." (21 111., 516.) It has been held that the highways may be used for the purpose of moving buildings in them, providing such use does not neces- sarily or unreasonably obstruct the free passage of the public over and upon it. The law will justify such obstructions if of a partial 'H MANUAL OF THE LAW. and temporary nature, if they arise from necessity and are for the convenience of mankind, particularly if they occur in the custom- ary or contemplated use of the highway. The question of their necessity and reasonableness, and of the customary use, are for the consideration and determination of a jury under all the circum- stances of each paticular case. But a person moving a building through the street must see to it that he does not injure the shade trees growing upon either side, nor damage other objects, for he will be liable if he does. (35 N. H., 257.) The street may be used for temporarily depositing goods, for loading or unloading, if necessary, and the work is done with des- patch and caution. (43 Iowa, 199.) Likewise a street may be temporarily used for the purpose of erecting or repairing a build- ing. If the use of the street is necessary for that purpose and the obstruction is not unreasonable and caution is observed to prevent injury and inconvenience, the law will permit a temporary and limited use of it for that purpose, (i Serg. & Rawle, 219; I Denio, 530.) Of course no one can throw sticks or stones or deposit rubbish in the highway. That is a nuisance and an indictable offense. 3. Trayel with Teams, etc. The rules of law respecting the conduct of travelers on the road have reference mainly to travelers with vehicles drawn by horses. Foot passengers and equestrians really need no rules save those which reason and prudence sug- gest, and for the most part the law provides no other. The injury resulting from collisions between footmen are at most only trivial, but a collision between vehicles often results in serious destruction of property if not injury to life and limb. Hence it becomes neces- sary to provide rules for the prevention of such catastrophies, and it may be laid down as a general principle that the one who is guilty of a violation of such rules which results in injury to another party who is in no way blamable is responsible for the damage done. i. Which Way to Turn. To prevent collision and secure travel from interruption it is necessary that there be certain well- known rules in regard to the meeting of vehicles and teams. These rules have been called the law of the ro*d, and the most important one of them is that when two travelers with teams coming from opposite directions meet in the highway each shall OF KIGHTS IN THE KOAD. 1 15 turn to the right in passing. In England the rule, based on long honored custom, is to keep to the left, which is just the opposite of our rule. The American rule is enforced by statute in, I think, all of the States. The statutes of, the different States upon this point are quite similar, the one in Michigan, which may be given as a sample, being as follows: "Whenever any persons shall meet each other on any bridge or road, traveling with carriages, wagons, carts, sleds, sleighs or other vehicles, each person shall seasonably drive his carriage, or other vehicle, to the right of the middle or traveled part of such bridge or road, so that the respective car- riages or other vehicles aforesaid may pass each other without interference." A penalty of twenty dollars is provided for a vio- lation of this provision, and the offending party is made liable for all damage caused by the offense. A traveler is not obliged to keep on the right side of the road all the time. He may drive where he pleases, or where the going is best, so long as he turns to the right when he meets another team. If his load be so heavy or his vehicle so cumbersome that he cannot seasonably turn out so as to yield the left side of the road to an approaching team or vehicle, then he had better keep to his own side. (4 Esp., 273; 14 N. H., 307.) Yet it should be observed that this rule of the road is not an absolute or inflexible one. Circumstances may and often do arise in which a deviation from it is not only justifiable but even necessary. In the crowded streets of a large city reason and prudence may often dictate a departure from the rule, and reason and prudence should in such case prevail. If one were driving on his right side of the street and should see ahead of him a team or horse coming at a furious rate on its wrong side, he would not be justified in remaining there. It would be his duty to turn out so as to avoid an accident though he had to turn the wrong way. (8 Car. & Payne, 103.) If a trav- eler meets another who does not seem to understand the rule about turning to the right, he is not justified in permitting himself to be injured and then seeking to recover damages therefor from his fel- low traveler who was wrongfully on the wrong side of the road. (11 Gray, 418.) Reason and prudence would indicate that he should use due care to get out of the way, though in so doing he had to sacrifice his right to that side of the road. In Maine when persons meet and pass each other upon the public highways it is the duty of each to pass to the right of the middle of the traveled ii6 MANUAL OJ' THE LAW. part of the read when practicable. And when it is not practicable, that is when it would be difficult or unsafe for a traveler to do so, on account of his vehicle being heavily loaded, or for other cause, he should stop a reasonable time at a convenient part of the road to enable the other to pass. (25 Me., 39.) A person may turn to the left of the road for the purpose of going up to a, house or store, but he must be careful not to obstruct a traveler lawfully using that side; he should wait till such person has passed on. (11 Me., 338.) These rules of the road apply to all roads or waysj used by the public as such whether they have been legally laid out or not. If the public makes use, even wrongfully, of any way which is not a public street, these rules for their conduct in highways attach to it. (23 Pick., 201.) 6. Crossing a Eoad. Where roads cross each other at right angles the rule, as formerly laid down, was that persons traveling on the side road should take care not to interfere with persons lawfully using the main road; they should wait before crossing till they can pass without interfering with travel upon the main street, (i Pick., 345.) But inasmuch as there may be misunderstanding or dispute as to which is the main road, the better doctrine now seems to be that parties on each road must use due care and pru- dence. 6, As to Passing. When travelers are driving in the same direction on the same street and one wishes to pass ahead of the other, the rule in England is that the foremost traveler shall bear to the left and the other shall pass on the off side. In this country there is no rule upon this subject. Any traveler may use the mid- dle or either tide of the road at his pleasure without being bound to turn aside for another traveling in the same direction, providing there is room enough to pass on one side or the other. If there is not sufficient room it is the duty of the foremost traveler to afford it by yielding up an equal share of the road on being requested to do so. If he refuses he becomes liable for the injury or delay so caused, though such refusal would not give the other party a right to force his passage and so cause a collision, as he has redress by due course of law. ( i Watts, 360. ) Where a street railway runs through a street it is the duty of the traveler to yield the way to the horse cars. The owners of the road have the right of way, or right to the unrestricted use of OF lUGHIS IN THE KOAD. n? their tracks; but it is not unlawful or negligent for others to drive on the tracks with common carriages so long as they do not unnecessarily obstruct them. (15 N. Y., 3S0.) 7. Horseback Eiders. In England persons riding on horse- back are subject to the same rules, respecting conduct in the high- way, as are persons driving in vehicles. (8 Car. & Payne, 103.) But in this country it is held that there is no law of the road respecting equestrians. A man on horseback meeting a horse or vehicle is not with us required to turn to any particular side, as to the right or left; but he must govern himself in this respect accord- ing to his notions of prudence at the time and under the circum- stances. ( 24 Wend., 465. ) There is, however, an almost univer- sal custom which is sanctioned by common consent and imme- morial usage — giving it the force of positive law — that a person on horseback should yield the traveled path to one who is traveling in a wagon or other vehicle. (24 Id., 465.) In fact, common sense and propriety would indicate such to be a fair rule. Though a foot passenger or an equestrian has without question a right of way as well as the driver of a vehicle, still the enjoyment of the right is to be regulated by reason and justice, and it certainly would not be either to compel a teamster with a heavy load to leave the beaten track of the road if there is room enough for them to pass on either side. 8. Foot Passengers. AH persons have the same right to walk in the street that they have to ride or drive there. And they have the same right to walk in the middle of the street that they have to walk in the foot paths at the side. When one is walking in the wagon track, however, he must observe greater care and caution to avoid collision with vehicles; but the fact of his being there is not of itself negligence. (5 Car. & Payne, 407.) It i» his duty to turn out for teams, especially if heavily laden; but teamsters have no right to run over him simply because he happens to be in the way. (45 Mich., 62.) Foot passengers have the undoubted right to cross the street at any time or place, and persons driving along it must take due care not to run into them. The foot passenger must also exercise due care to avoid injury. If he sees a team coming at rapid rate he is not justified or warranted in attempting to run across ahead of it, nor should he ever attempt crossing a crowded thoroughfare with- out first carefully looking each way. For, be it remembered, no ii8 MANUAL OP THE LAW. one can recover damages for an injury which due care on his part would have prevented. (8 Car. & Payne, 373.) 9, Bate of Speed. It has been remarked that persons using the highway must exercise due care for the prevention of collisions or other injuries. This includes an observance of the duty to drive at a moderate rate of speed. To drive faster than an ordinary reasonable traveling pace upon the highway, and especially upon the streets of a city, is not only culpable negligence, but is gen- erally prohibited either by statute or by municipal ordinance. As to what is an immoderate rate of speed is a question for the jury to decide. It is such a rate that the horses cannot be seasonably stopped or properly directed, or as the Supreme Court of the United States puts it, " such rapid driving as under the circum- stances amounts to rashness." (13 Peters, 181.) In Pennsyl- vania it was held that driving at a rate of fifteen miles an hour, or a mile in four minutes, on a public highway, was unlawful, and that if death resulted from a collision caused by such driving, without any fault of the injured party, it would amount to murder in the second degree. 10. Tehicles Must Ibe Roadworthy. Another precaution which the observance of due care imposes on the traveler is that of having and keeping his vehicle, tackle, and harness in a good roadworthy condition. Negligence on the road consists not alone in careless or immoderate drivlng,"but in having a coach or other vehicle of insufficient strength, or having an improper harness. (8 Car. & Payne, 691.) If injury results from this cause the owner of the defective and unroad worthy vehicle will be liable for it. 11. Stopping by the Wayside. Travelers may stop tempo- rarily by the roadside for any legitimate purpose connected with their travel, as the loading or unloading of goods, watering of horses, etc. But this stopping must be at such a place and in such a manner as not to interfere with the primary use and purpose of the highway as a thoroughfare of travel. If the street were nar- row and there were much travel in it the law would not justify a habitual use of a portion of it for purposes of loading and unload- ing. Thus where a street was only thirty-seven feet wide in front of one Mr. Russell's warehouse, and he kept three large wagons standing there much of the time, and piled the sidewalk full of his goods, it was held to be an unreasonable interference with the free OF EIGHTS IN THE KOAD. passage of the public, and to be indictable as a nuisance. (6 East, 427.) 12. Do not Leave your Horses Untied. If a horse is left standing untied in the highway the owner of it is liable if it runs away and does damage. If a third person carelessly frightens it, and it runs away and does damage, not only such third person but also the owner of the horse which he left untied will be liable for the injury caused. (2 E. D. Smith, 414.) If a horse runs away in the streets of a city the owner of it is presumed to be guilty of negligence. Of course if the horse runs away, without the fault of the driver, such driver or owner is not answerable for the injury done; but he must show that he was not in fault as the presump- tion is against him. (Bright, Pa., 186.) If two persons driving along the highway strive to get to the same place at the same time, that one is in the wrong who first uses force. (27 Cow., 585.) 13. Fractious Horses. To knowingly drive an unbroken or vicious horse on the public highway has been held to be negli- gence. No man should drive into the street, where people are traveling, where children may be, and have a right to be, with a horse which he knows to be fractious, unmanagable, or vicious. If he does he is liable for any injury which may be thereby caused. In view of this it would seem that farmers should think twice before committing the very common imprudence of going upon the street with a team of colts which they are just breaking. Sup- pose the colts were to break away and dash over a little child on its way to school and kill it. The farmer might find himself con- victed of manslaughter. 14. Liability for Misconduct on tlie Road. There are in most of the States legal penalties provided for the violation of statutory rules concerning travel in the highway. For instance, in Michigan there is a penalty of a sum not exceeding one hundred dollars, or imprisonment fornot more than thirty days, inflicted for the willful running of one's horses in the highway. There is also a similar penalty for employing a drunken driver to drive one's carriage on the road. (C. L., Mich., C. 30.) But independent of and in addition to any of these statutory punishments there is a liability which rests upon every careless driver, which may be stated as follows: "Whenever in consequence of a viola- tion of any of these rules of the road, or the want of proper care I20 MANUAL OF THE LAW. and diligence m any other respect, x collision ensues, or some other accident happens, the party through whose fault it happens is liable for the injury, unless the injured party, through his own neg- ligence or misconduct, contributes to the result." If it appears that the damage was occasioned partly by the negligence of one traveler and partly by that of another who is injured, no action will lie, no damages can be recovered, because of the general and very proper principle which underlies the law of negligence, that if one contributes in any way to the negligence which results in his injury he is not entitled to recover. (See Angell on High- ways, page 429, and many cases there cited.) 15. Obstructions and Nuisances. Any act or thing which unnecessarily impedes the free passage and lawful use of the high- way by the public is a nuisance. Nuisances are either positive, like actual barriers or other obstructions placed in the highway, or else they are negative, like those resulting from want of repair. The latter kind can only be committed by those upon whom rests the obligation of repairing the highways ; the former can be com- mitted by anybody. A nuisance, being an offense against the pub- lic, can only be proceeded against by indictment, unless some indi- vidual has suffered special damage, over and above the rest of the public, in which case he may seek redress by private action against the one who caused it. To put the highway to any use except that of travel, and those incidental uses connected with travel which were mentioned in the subhead on that subject, is, if it interferes with the free passage of the public, a nuisance. The many things that have been held to be nuisances cannot be enumerated here, but among them may be mentioned buildings which protrude upon the highway ( 19 Pa., 412); overhanging boughs which incommode the passage; to put a fence or gate across the highway (ii S. & R., 345); or build a fence alongside it inside of its outer line (37 Barb., 301); to deposit lime or gravel in it ( i B. & P., 404) ; to leave logs or lum- ber in it (5 Ad. & E., 469); to leave any object in it or alongside it which will frighten horses of ordinary gentleness (30 Conn,, 129); or to leave a loaded wagon standing in it for an unreason- able length of time. (10 Abbott, Pr., 365). These have been regarded by the courts as nuisances, and the lists might be extend- ed. There is no doubt that the leaving of farm implement* by the roadside, as is often done, or the turning of the road into a barn- OF RIGHTS IN THE ROAD. yard, as some farmers do, is in most instances a nuisance, and the farmers who practice it arc not only guilty of very bad taste, but are running the risk of having to pay dearly for their slovenness, if on some dark night somebody is injured by it The law is well settled that whoever places an obstruction or nuisance upon or across a public highway is liable for the injuries that result from it. (2 111., 229; 53 Barb., 629.) 16. Abatement of Nuisances. It is the duty of the officers having charge of the highway to remove the obstructions and abate the nuisances that may be upon it, and the township or city may be liable for any resulting injury if they fail to do this ( 14 Gray, 249) ; but any individual, who has occasion to use the highway in a lawful way, may remove any obstruction that he may find upon it, and if necessary to do so may go upon the land of the person who erected the obstruction, doing as little damage as possible to the land. (10 Mass., 70; 18 Wis., 265.) But he must do this at some peril, for if he fails to establish the fact that the thing removed is a nuisance, he will be liable for trespass. (35 N. H., 257.) Trespasses on Kiglits of Adjacent Owners. Uses of the highway which may not be nuisances may still be unlawful as being trespasses upon the rights of adjacent owners. As has been observed, persons owning land on either side of a highway own to the middle of the road, subject to the public right of pass- age and rights incidental thereto. Every other use to which the highway can be put, which does not interfere with the public rights, belongs to the adjacent owners. An injury to these rights of adjacent owners is a trespass just as much as though it were committed on the enclosed land of such owners. 'The mines, quarries, springs of water, timber, earth, gravel, grass, etc., belong to the adjacent owner, and he may maintain the action of trespass, ejectment or waste, as the case may require, against any one who unlawfully interferes with them. ( 15 Johns, 447.) Trespass has thus been successfully maintained against one who dug up and removed the soil (12 Wend., 98); also against one who cut down the trees in the highway (i Cow., 238); also against one whose horse gnawed and injured a tree there ; also against one who stood in the street and used abusive language to the adjacent owner ( 1 1 Barb., 390), for while so engaged he was not using the street for the lawful purpose of traveling, but was a trespasser. 122 MANUAL OP THE LAW. 17. How Roads Are Made. Highways come into existence in one of the three following ways : They are either laid out and constructed by legislative authority under the provisions of State laws upon the subject; or are given to the public by individual land owners, which is called dedication; or else they are acquired by prescription, that is by long adverse use by the public, 18. By Legislative Authority. The provisions of the various State statutes for the construction and maintenance of pub- lic highways are or ought to be familiar to all freeholders. The details of them cannot be given here. In general the work, so far as country roads are concerned, is entrusted to certain township officials, often called commissioners of highways, who, on applica- tion of a certain number of freeholders, pass upon the necessity of the proposed highway, determine the exact route, location, and direction of it, and ascertain and designate the just compensation to be given to those whose lands are to be thus taken for the purpose. The main thing to be remembered in the method of making roads by legislative authority is that the necessity for the proposed high- way be in some way judicially determined, and that just compen- sation must be made to those whose private property is thus taken for public use. 1 9. Right of Eminent Domain. This right which the State Legislatures possess of taking or of authorizing the taking of pri- vate property for the public use which is called the right of emi- nent domain, may be and often is delegated to individuals or to corporations like railroad or turnpike companies, who under and by virtue of such power may condemn and take private property. ( 2 Peters, 251.) It is in this way that railroads, turnpike, and toll roads are usually laid out and constructed. When private property is thus taken, under and by virtue of the right of eminent domain, only so much or such an interest in the property can be acquired as the exigencies of the use it is taken for demand. (15 Conn., 318.) In the case of public highways only the use of the land for the purposes of travel is required, and that is all that generally can be taken. When, therefore, the road is discontinued or abandoned, the land reverts to the original owner or his heirs and assigns freed from the incumbrance. (2 Iowa, 28S.) 20. By Dedication. When an owner of lands lays out a street through them and appropriates the land in the street to the OF RIGHTS IN THE ROAD. 1 23 use of the public, such street when accepted by the public becomes a highway by dedication. Dedication, then, is a gift of land to some public use which becomes complete on being accepted by the public. Dedications are either by deed, by express declaration, or are presumed from long acquiescence by the owner in the public use. No particular formality is necessary. They may be written, oral or evidenced by the acts of the owner. If the intention to dedi- cate is in any way clearly expressed and the public accepts the gift, it will conclude the donor from ever asserting any right in opposition to or incompatible with the public use. (5 Taunt., 125; 19 Pick., 405.) A dedication is presumed after from ten to twenty years use by the public with the owners' knowledge (22 Ala., 290), and in some cases after a shorter use if the circumstances favor the presumption. (4 Cal., 114.) Acceptance by the public is essential to make the dedication complete. Inasmuch as the public must assume certain responsi- bilities in connection with streets like the duty of repairing and the liability resulting from failure to repair, it is essential that it in some way accept the gift of a street before these responsibilities can be thrust upon it. Acceptance, it is said, may be indicated by the public using the street. The English doctrine, which is recog- nized by a few of the older American decisions, is that mere use by the public is sufficient to bind the township, or other body having charge of the streets, with the duty to repair and to impose upon it the liability for want of repair. (23 Wend., 103.) But the great weight of authority in America is to the effect that towns are not liable for repairs, or for injuries resulting from want of repairs, until they have in some way„officially adopted the street, either by formal accejjtance or by indirectly recognizing it in some way as by repairing it or exercising some authority over it. (13 Vt., 424; 16 Barb., 251.) 21. By Prescription. Prescription, when applied to the acquirement of public rights of way, is but another name for pre- sumed dedication. When streets which have never been regularly laid out and opened have been long and uninterruptedly used by the public, a conclusive legal presumption arises that they were at some early period regularly established. The public can gain a right of way by long use just as an individual can thus gain a pri- vate way. , (13 Pick., 94.) '24 MANUAL OP THE LAW. 22. Repair and Maintenance of Highways. In England the duty of caring for and repairing the public roads rests by com- mon law upon the parishes, and the duty of constructing and caring for bridges devolves upon the counties. In this country we have no political divisions corresponding with parishes, and so in the several States there are statutes assigning the duty to cities, villages, and townships of maintaining the public highways within their respective jurisdictions. Country roads are then in America under the general care of the townships. Toll roads of course are under the care of the corporations having the franchise of collecting toll, but the town- ships are in some States given the duty and authority of seeing that they are kept in repair. Townships are by statute made liable to any one who is injured in person or property by reason of their neglect to keep their highways in a state of good repair. 23. Liability for Failure to Repair. This liability which townships and other municipal corporations are in this country placed under in respect to their highways, is a purely statutory one, and its precise measure depends upon the wording of the respective statutes of the various States. In Massachusetts, Maine, and Rhode Island the obligation is to keep the highways in repair " so that the same may be safe and convenient for travelers with their teams, carts, and carriages, at all seasons of the year." In Vermont and Connecticut the duty imposed is to keep the highways "in good and sufficient" repair. The Michigan statute says: "Highways, bridges, cross-walks, and culverts shall be kept in good repair and in a condition reasonably safe and fit for travel." What is meant by these statutes is that public roads must be kept in such a state of repair as in view of their location, the kind and extent of travel upon them, and all circumstances con- nected with them, seems reasonably convenient and safe. A road should be kept fit for travel by the usual and ordinary modes which are customary in the community. A main and much trav- eled thoroughfare should be kept in better condition than a side road but little frequented. A road which would be perfectly safe and convenient in the country might be totally unsafe and incon- venient in the city. Regard must constantly be had to the usual *nd probable uses to which the road will be put, and it must be tept in a condition suitable for such use. If an injury occurs and »uit is brought to recover damages for it, it is for the jury to deter- or EIGHTS IN THE EOAD. 125 mine under proper instructions from the court whether, in view of all the circumstances, the road was reasonably safe and convemeiu. (17 How., 161.) And in determining the question the jury are to consider the location of the road, the geographical features of tho country, the difficulty of keeping the road in a better condition without unreasonable expense, the season of the year, the kind and amount of travel having occasion to pass over it, etc. (12 Cush., 48S.) A road running up the rocky side of a mountain might be reasonably safe and convenient if it were but wide enough for a single team with places fixed for passing only at intervals, but a road over the level prairie might not be reasonably safe and convenient unless it were kept smooth and free from obstructions for the full width of two or four rods. Bridges and culverts are to be subjected to the same rule. They must be kept reasonably safe and convenient, and strong enough to bear the heaviest loads that it is usual and customary to bring upon them, or that might reasonably be expected would be brought upon them. The Supreme Court of Massachusetts said that a town would be liable for an injury to an elephant, driven with due care along the road, occasioned by a defect in the highway, if in the opinion of the jury an elephant was an animal which it was proper and reasonable to take over a highway kept for the reasonable use of the public; and under this instruction the jury disagreed. (14 Gray, 242.) In a grazing country like Vermont a bridge should be kept sufficiently strong to sustain a drove of cattle, if passed over with common care and prudence. (6 Verm., 496.) It is the duty, likewise, of towns to remove obstructions from their highways, and here again the same rule of reasonableness applies. What would be a serious obstruction in a much traveled and crowded street might possibly amount to nothing in a quiet country by-road. Towns have been held liable for injuries result- ing from a log lying outside of a traveled path (18 Me., 286), and objects at the side of the road which frighten horses have been held to be nuisances, and as such indictable (30 Conn., 229), though where an injury was caused by large loose stones lying outside the gutter seven feet from the traveled wagon way it was held that the township was not liable. (16 Pick., 189.) The duty of caring for the highways includes also that of pro- tecting travelers from dangerous places, pit-holes, precipices, and the like. Down in Maine a horse was once drowned in a deep 10 •26 MANUAL OF THE LAW. mud hole at the side of the road which had the appearance of being a convenient watering place. And the court said that " although towns are not obliged to furnish watering places for the public convenience, but when they are provided by nature in the highway they ought not to be allowed to become pit-falls, first to allure and then to destroy horses or other animals turned aside to partake of the refreshment to which they are thus invited." (12 Me., 198.) If a road pass along the edge of a steep bank or along the verge of a precipice it is the duty of the town to prop- erly guard the edge of the road by walls or railings (13 Pick., 102; 6 Wis., 377), and if they fail in this duty they are liable for the consequences. In cities sidewalks are regarded as part of the street, and as such are to be kept in repair through their entire width. 24. DisCOntinnance of Highways. Streets maybe discontin- ued by formal action on the part of the towns, cities, and villages having the same in charge, when they are given authority to do so, which they generally are by statute; or they may be vacated by the courts in certain cases (a matter not necessary to advert to here), or they may be lost by abandonment. Whenever the pub- lic easement or right of passage is in any way relinquished, the land in such highway reverts to the original owne» or their heirs or assigns freed from the incumbrance. lllllllP"i'fflilllIil- •■-■-*■- +^ IT" AIM CHAPTER XIV. OF RIGHTS ON THE FARM. 1. Dominion over one's Land. 8. Trespasses by Servants. 2. Right of Exclusive Possession. 9. Trespasses by Domestic Animals 3. Implied License to Enter Upon 10. Trespasses by Dogs. Lands. 11. Trespasses by Persons Hunting 4. License Given by Law. and Fishing. 5. Express License. 12. Who Owns Wild Game, 6. Trespass Upon Land. 13. Possession of Land. 7. How Trespasses May be Committed. 1. Dominion Oyer One's Land. The ownership of land carries with it very large rights. As we shall see, the control which a man may exercise over his property is well-nigli absolute, for with very few exceptions, which are herebelow pointed out, a man may do what he pleases with his own land. The govern- ment, the community, and in a few instances certain individuals have certain limited rights in all lands; but aside from this every man is the autocrat of his own premises. 2. Right of ExcIusIto Possession. Among the most import- ant of the rights incident to the ownership of real property is that of exclusive and undisturbed possession of the land. No man can so much as put his foot upon another's land unless by permission, express or implied, or under authority of law, without committing a trespass for which an action will lie. The mere crossing of one's boundary or walking over one's fields, without permission, is a trespass for which damages may be recovered. Of course the damages would be merely nominal, (that is a very small sum, as six cents), unless the owner could prove some special damage or could show malice on the part of the trespasser, and no reasonable man would sue another for innocently stepping upon his land. Still ia8 MANUAL OF THE LAW. the law gives him the right to do so. It holds his premises sacred to him. His boundary, hke that between nations, is not to be crossed without permission. This permission, called in law a license, is iometimes given by law, more often expressly by the owner, and it is in some cases implied from custom and other circumstances. In order to know, then, whether a given entrance upon lands is a trespass, we must ascertain whether it was licensed in any of these ways. 3. Implied License to Enter upon Lands. All business men, merchants, dealers," professional men, and all persons having any business to transact with the public, impliedly invite any and every one to enter upon their lands or premises for the purpose of transacting business in their respective lines. (5 Watts & S., 141.) But the invitation is extended only to those who may wish to enter for the purposes for which the various places are thrown open. It would be an abuse of it to enter for any idle, ulterior or mis- chievous purpose, and one who did so would be a trespasser; though it is possible that one may visit, out of mere curiosity, any place of business which is thrown open to the public, without incurring liability. Certainly one may enter a shop for the pur- pose of looking at the goods or inquiring their price though he does not intend to buy. Likewise every person extends to others a license, by implica- tion, to enter his grounds and come to his house by the proper way and at proper times, for social courtesy, business, information, etc., and the custom of the community determines the limit of this implied license. (65 Penn. St., 273.) If a person leaves anything exposed to view, which would be likely to tempt or attract children, it has been held that he extends an implied license for them to enter and see it or use it (21 Minn., 207; 44 Iowa, 27); and the leaving of meat exposed so that dogs can come and get it has been held to amount to an implied invita- tion to the dogs to help themselves, and no action would lie as against their owners for the trespass. If one baits traps upon his premises for dogs he is liable to their owners for their value if they are killed. (4 East, 277.) If one sells goods which are in his possession, as cattle in the pasture or crops in the field, and nothing is said about their being delivered, he impliedly licenses the purchaser to enter his premises to get them. (39 Ind., 267.) Other instances of implied lisense might be given, but these are lufficient to iUustrate the. orinciole. OF RIGHTS ON THE FAKM. 129 4. License Giyen by Law. The law gives persons a license to enter upon private lands in certain instances of which the fol- lowing are illustrations: If an officer have a summons, warrant, or other process from a court, and it becomes necessary to go upon private grounds or into buildings to serve it, the law licenses him to do so. He may go wherever the man is, to serve the paper upon him, except into his dwelling if he finds that closed and locked. « Every man's house is his castle." .This familiar maxim means that a man's house is held in law sacred from intrusion, and that the owner may close, lock, and defend it, not only against private persons but against the officers of the law. If the latter attempt to force their way unlawfully they become trespassers, and may be repelled to any extent necessary. This privilege extends only to the outer walls of the castle, that is the outer doors or windows of the house. If the officer finds these open he may break down inner doors in order to serve writs without committing trespass. He may break open the outer doors of barns, store houses, etc., as the castle means only the dwelling or habitation. Even the outer doors of the dwelling may be broken open for five purposes, as follows : To arrest for treason, felony, breach of the peace, serve a search warrant, and to dispossess the occupant when the possession has been by a proper court awarded to another. (Cooley on Torts, 314-) Another case where license is given by law is that of entering private lands to abate a nuisance. If a person maintains or per- mits a nuisance to exist upon his premises, and such nuisance specially injures some particular individual, such individual may, on the owner's refusal to remove it after notice, go upon the land and abate it himself. If he is resisted he is not justified in persisting and committing a breach of the peace in order to accomplish the abatement. In such case he must resort to the ordinary legal remedies. ( 32 Texas, 208. ) A person who thus takes upon him- self the abatement of a private nuisance takes also upon himself the responsibility of establishing that the thing abated is a nuisance. If he fails in this, he becomes liable for the trespass; or if he suc- ceeds in this, but does unnecessary injury in abating the nuisance, he becomes liable for the excess. (27 Ind., 394.) If the nuisance is of such a character that the security of lives and property requires its abatement at once, no notice is then required. The 13° MANUAL OP THE LAW. individual may abate it without first requesting the owner to do so. (Cooley on Torts, 48.) A common instance of license given by law is where a fire breaks out in a city. In such case the public authorities or private individuals may enter upon adjacent premises for the purpose of destroying or arresting the progress of the flames. This license is based on overruling necessity, and it extends to whatever may be necessary to do in order to stop the conflagration. Property may even be destroyed — whole blocks of buildings blown up if neces- sary — without liability. The owner has no claim on the officials. All that he can do is to seek redress from the State, and accept what the State sees fit to give him, if anything. (31 N. Y., 164.) Where a highway becomes obstructed or impassable, the law gives travelers license to pass over adjacent land in order to get around the obstruction, but they must do no unnecessary injury to the land. (18 Tex., 858.) So where it is proposed to take property under the right of emi- nent domain there are statutes giving license to certain persons to enter and make preliminary surveys, etc., without incurring liabil- ity. (25 Mo., 277.) If a license given by law is abused, that is if advantage is taken of it to gain an entry, and then unlawful or unlicensed conduct is indulged in, it has the effect of at once revoking it, and the party becomes a trespasser from the beginning. (8 Cow., 290.) 5. Express License. Where one person gives another per- mission or authority to enter upon his lands for any purpose, with- out at the same time giving him any interest in the lands them- selves, such permission is an express license; and it may be given verbally or in writing. A license is a personal matter between the parties. When given to one it cannot be by him assigned to another. (24 Pick., 187.) It can be revoked by the one who gave it at any time. That is to say, further acts under it may be at any moment prohibited, and if they are then done they are tres- passes; but all acts done under the license before its revocation are justified and protected by it, even though it is afterwards revoked. (14 111., 446; 20 Wis., 531; 26 Mich., 186.) It is revoked by a sale of the land. (51 N. Y., 246.) If not acted upon within » Tffasonable time such fact has the effect of revoking it. (54 N. H., 109.) One acting under a license must use due care not to do anything which will injure the land. (20 Mich., 156.) The one OS" EIGHTS ON THE FARM. IJl giving the license assumes no particular duty toward the licensee except to refrain from acts wilfully injurious to him. There may be some exceptions to this, as where a railroad company give a license to the public or to private individuals to cross their premises. They are under obligation to use a high degree of care to prevent injury. (65 Penn. St., 269.) If the license is coupled with an interest it cannot then be revoked at the pleasure of the licensor. That is to say, if a legal interest has been conveyed to a man in connection with a license, to the enjoyment of which the license is necessary, the license will live as long as the necessity. (11 Conn., 525.) Thus if I give a man license to erect and live in a house on my land I cannot revoke the license so as to deprive him of the house. I may ter- minate his right to live there, but he will still Jiave the right to go upon the land and take away his building. (10 Barb., 496.) A license, coupled with an interest in land, can only be created by deed or such other writing as will satisfy the Statute of Frauds. (See Ante., p. 35.) There are a few exceptions to this, of which a license to flow lands is one. (24 N. H., 474.) 6. Trespass Upon Land. We have seen that every entrance upon the lands of another which is not licensed in some of the ways above enumerated is a trespass. It makes no difference whether the lands trespassed upon were enclosed with fences or not. If there are no fences the law encircles the land with an imaginary inclosure to pass through which is to break through the close and commit a trespass. For the mere entering upon the land only nominal damages can be recovered, and there are some trespasses which are said to be excusable altogether. Of these are trespasses in self-defense in order to escape from some danger or appre- hended peril, or in defense of the possession of one's goods and chattels, or to recover his cattle or other domestic animals which have escaped from him ; but these belong really with the class of implied licenses above referred to. If, however, an entry upon land is made after notice or warning not to trespass, it then may become a very serious offense, and if it amounts to a wilful and insulting invasion of proprietary rights, heavy exemplary damages may be recovered. (33 111.,' 473.) 7. How Trespasses May be Committed. Trespasses may be committed not only by a person going himself unlawfully upon another's land, but by sending his servants there, allowing his '32 MANUAL OF THE LAW. domestic or other animals to escape there, or by casting inanimate objects upon the land. This latter kind of trespasses are not of very frequent occurrence. If one throws sticks upon another's land, or dumps his rubbish on the side of the highway next to another's land, or throws stones at another's buildings, it is a tres- pass. So, too, if one cuts trees so that they fall upon another's land, even though he did not intend or suppose that they would fall that way, or reach so far, it is a trespass. (2 Ired., 42.) Or if one is blasting rocks and the fragments fly and fall upon another's land it is a trespass, and for any of these trespasses an action will lie. (58 N. Y., 416.) 8. Trespasses by SeryantS. If a master directs his servant to commit a trespass, the master is liable. Or if the servant in the prosecution of his master's business, and within the scope and limit of that business, commits a trespass, though not specifically directed by the master to do so, but is given general authority to do what he thinks proper, the master will be liable (19 Wend., 345); and the master may be liable if the trespass is committed contrary to his express orders if it is not done in wilfull disregard of those orders. (14 How., 468; 10 111., 509.) But if the servant goes outside of his master's business and commits a trespass on his own account, the master is not liable. 9. Trespasses by Domestic Animals. If one's cattle, horses, sheep or swine go upon the lands of another and there do damage, it is a trespass for which the owner is liable. And it does not make any difference whether the lands are enclosed by fences or not. This is the common law rule to which some exceptions are made by statute in America, as is pointed out in Chapter XVI on Farm Fences. It is, in the absence of a statute or regu- lation to the contrary (and such statutes are of doubtful validity), just as much a trespass for one's cattle to cross an invisible bound- ary line as to leap over a stone wall. (19 Johns, 385.) And the liability on the part of the owner does not depend on his being careless or negligent in letting his cattle escape, for it is his duty at his peril to keep them upon his own premises. There is possibly one exception to the rule last above mentioned, and that is in the case of cattle escaping while being driven along the highway. If one is driving his cattle along the highway and they escape from him, without any fault or negligence on his part, he is not liable for their trespasses on private grounds, if he removes OF RIGH-^S ON THE FABM. '33 them within a reasonable time; and what would be a reasonable time would depend upon all the circumstances of the case. (4 H. &N.,63i.) Trespasses may be committed by one's animals in other ways than by tramping over another's fields. It has been held that if one's horse reaches over a division fence and bites and injures another's horse, it is a trespass which renders the owner liable, (10 C. P., 10.) 10. Trespasses by Dogs. At common law the trespasses com- mitted by dogs, unlike those committed by other domestic animals, are not chargeable to their owners. The dog does not seem to have been regarded as such a valuable kind of property as that its owner became responsible for its acts. The mere running of a dog across one's fields, too, is generally so harmless a thing that the law does not regard it as an actionable trespass. But if a dog becomes mischievous and inclined to injure property, then its owner is bound to restrain it as soon as he has notice of such mischievous disDOsition, and if he fails to do so he then becomes liable for its trespasses. If the owner of the dog were himself trespassing and the dog were going along with him and doing injury, though unbidden, the owner would then be liable, — the dog's trespasses being in such case regarded as a part of his own. There are statutes in many States fixing the liability of owners of vicious and mischievous dogs, particularly of sheep-stealing dogs and dogs which bite and injure persons or animals. Gener- ally these statutes do away with the necessity of proving a scienter, that is, that the owners of the dog knew of their vicious disposi- tions. They often provide for the recovery of double damages for such injuries, and make it the duty of the owners of such dogs to put them out of the way. 11. Trespasses by Persons Hunting and Fishing. It is so very common in this country for land owners to permit anybody and everybody to enter their lands for the purpose of hunting and fishing that many persons act as though they had a perfect right to do so. And indeed some American courts have gone so far as t'« hold that, because of the universality of this custom, persons may, in the absence of any notification to the contrary, suppose that they have implied license to do so, and that they may enter, par- ticularly to take fish in small lakes and streams, with immunity. »34 MANUAL or THE LAW. (Marsh v Colby, 39 Mich., 626.) This, however, is not the common law, nor is it the general rule in this country. It is a trespass to enter for the purpose of hunting and fishing. But it would be well for those who wish to prevent or to prosecute such trespassers to give notice to them not to enter. This notice might be given by posting placards, though there might be difficulty in proving that such notices were brought to the attention of the tres- passers. If one enter another's land with dogs for the purpose of hunt- ing, and the dogs do damage by way of chasing sheep, or the like, their owner is liable for the injury, though he had no knowl- edge of the dog's propensity to do such things. ( i N. Y., 515.) The right to take fish in the fresh water streams of this country belongs, without doubt, to the owners of the soil under them to the exclusion of every one else. (17 Johns, 195; 43 111., 447.) This right, however, is one which, because of the relation of riparian owners, may be regulated by statute. Each riparian owner has the same right as every other; but if one near the mouth of the stream were to put a net across which would stop the fish from running up, he would spoil the fishing for all those above. Laws have therefore been enacted in most of the States regulating the enjoyment of this right, forbidding the use of seines in certain waters, and the taking of fish at all seasons of the year, and pro- viding that an open way shall be kept for the free passage of the fish up and down the streams. Such legislation is valid and bind- ing upon the riparian owners. (119 Mass., 300; 57 Ind., 119.) The right to fish in small lakes and ponds, like the right of fishery in fresh water rivers belongs to the riparian owners (32 N. J., 369); but in the larger lakes and tide-water streams the right belongs to the public, and all citizens have the right to fish in them. (60 N. Y., 56.) The exclusive right of fishery in small streams and lakes belonging to the bordering owners, it follows that for others to fish in them is a trespass. But as the mere entry upon water can do no harm, there may be some reason for regard- ing it as different from an entry upon lands. If the owner does not himself make any particular use of the right of fishery for purposes of profit, and has been in the habit of permitting persons to fish in his waters at their pleasure, it would seem that this cus- tom would create an implied license for them to do so, and as above indicated some courts have so held. (39 Mich., 626.) Cer- OF BIGHTS ON THE FARM. 135 tain it is, that if one does not wish to have others fishing in his streams he should give them notice not to enter for such purpose, before he proceeds against them for trespass. 12. Who Owns Wild Game. While, as we have seen, it is unquestionably a trespass for a person to enter another's lands, with- out permission, for the purpose of hunting or fishing, still when he has entered and taken fish or game upon another's land such fish 01 game belongs to him. No action can be maintained for recover- ing it, or recovering its value, or recovering damages for its con- version. The law does not recognize any private property in fish, game, or wild animals, until they have been subjected to control. If one tames them, or secures them and keeps them confined or under his control, they then belong to him; but the mere fact that they are roaming over his land or swimming through his waters, does not constitute them his private property. (10 John, 102.) If, then, some fancy crack shot from the city, with his well trained setters, comes into the farmer's cornfield or wheat stubble and shoots a score of partridges or prairie hens that have grown fat upon the farmer's wheat, nothing can be recovered for the loss of the birds, (i Sprague, 315.) Trespass is the only action that will lie, and for this probably only nominal damages can be recov- ered, unless notice were given not to enter for such purpose. 13. Possession of Land. Trespass upon real property is always an injury to the rights of the one in possession of it, and generally only one who is in possession can sue a trespasser. But if the land is leased to a tenant, and a trespass is committed upon it and permanent injury done, like destroying a building, cutting timber, or the like, not only the tenant who is in possession, but the owner, may maintain an action. So that two actions may be based upon one trespass. Possession of land is a matter of great importance, as many valuable rights often depend upon the question of possession. Possession may be actual or constructive, and it may be rightful or wrongful. It is actual when the owner or one entitled to pos- session actually occupies or lives upon the land. It is constructive where the land is not actually occupied, but is, in contemplation of law, in the possession of the owner or person entitled to possession. If the owner does not live upon the land, nor no one else, it is constructively in the owner's possession. (11 Vt., 129.) Actual possession is not lost by a temporary absence from the 13^ MANUAL OF THE LAW, premises. If the occupant goes away upon business or pleasure, his possession will be kept for him by his family, his servants, his domestic animals, or even by his goods and chattels. A person who is in peaceful possession of premises is presumed to be in rightful possession until the contrary is proved ; and peace- ful possession is of itself sufficient to enable one to successfully maintain the action of trespass or ejectment against one who has no title. (38 Mich., 729.) If the owner, or person entitled to the occupancy, loses or is deprived of possession by any means, he may regain it in several ways. At common law he could regain it by force, — ^by going himself and putting the intruder off. But as this led to breaches of the public peace, it was early prohibited in England, and it has always been against the laws of this country. It cannot be per- mitted, because one who attempts a forcible entry makes himself judge in his own cause and enforces his own judgment. Conse- quently there are statutory methods for having any one who has made a forcible entry upon a peaceful possession summarily put off. It makes no difference whether he owns the premises or has the right to possession or not. If he takes possession forcibly from one who has it peaceably, though possibly wrongfully, the law will compel him to give back the premises, and will not inquire into his title or rights in the matter until he has done so. (12 Wend., 488; 32 Vt., 82.) But if one entitled to possession can make a peaceable entry upon his premises while they are occupied by another, that is to say, if he can get in and dispossess the other party by stealth, by taking him when off his guard, while temporarily absent, or the like, then such act is permissible, and it restores him to his full and complete possession. (50 Me., 325.) And he may resort to any means short of the employment of force in order to attain this end. (59 Me., 568.) A person lawfully in possession may use any necessary force t* repel or expel an intruder. An assault and battery may be law- fully committed in defense of one's property, or the possession of one's property, either personal or real, if undue or excessive force be not used. (80 111., 92.) A trespasser may be repelled, sr if he has gained an entrance, he may be removed, by force. If he gained entrance quietly and without force he must be requested t« leavo before he can be legally put off by force; kut if he entered OP RIGHTS ON THE FARM. 137 violently and with force, no previous request to depart is necessary. (4 Denio, 448.) Only so much force can be used as is necessary to put the trespasser off, and no more. (43 Vt., 417.) Although in the language of the law a man " must lay hands gently " on a ■ trespasser, still if he is assaulted in his own house he is not obliged to retreat, but may defend his possession to the last extremity. ( 8 Mich.. 150.) And he may even kill a burglar who is breaking in. (22 Ga., 478.) But where force is used, it must be used promptly and without delay. If there is any acquiescence on the part of the party who is dispossessed, he loses his right to use force. (8 Ohio, 40.) A person is permitted to defend a right by force, but he cannot recover in that way. CHAPTER XV. CONCERNING WASTE. ' 1. General Rule as to Waste. 6. Permissive Waste. 2. Cutting Trees, Etc. 7. Failure to Repair Buildings. 3. Manure Made on the Farm. 8. Injuries from Fires. 4. Composted Manures. 9. Remedies for Waste. 5. Purpose of the Occupancy. Among the injuries to land is the not uncommon one known in the law as waste. Waste, like trespass, is a harm done to real property, but unlike trespass which is committed by an intruder against the rights of the occupant, waste is committed by the per- son in possession of the land against the rights of the owner who is not in possession, or of some one else who has some future inter- est in the land. Waste is either voluntary, as where it consists of some positive act by the occupant which causes injury to the premises, or it is permissive, as where it consists of some omission or neglect of duty which results in like injury. 1. General Rule as to Waste. It is impossible to lay down any single definite rule as to what in all cases shall constitute waste. What might be waste in one instance or one period and place, might in others be good husbandry. Perhaps whatever causes lasting and permanent injury to the premises is an act of waste, or possibly any unusual or unreasonable use of the premises by the tenant or occupant might be waste. 2. Cutting Trees, Etc. The foregoing is well illustrated by the law regarding the felling of timber. It is almost always an act of waste for a tenant to destroy timber or cut down trees, except as the same may be needed for fuel or repairs upon the premises. A tenant, whether for life or for years, is entitled to CONOEENING WASTE. 139 take only so much wood as is needed for fuel and the repair of fences, agricultural implements, and buildings, and he is limited to what is reasonable for these purposes. (33 N. H., 18.) This rule is strictly enforced in those States or communities where tim- ber is scarce. If the tenant takes more than is necessary, or for any other purpose, it is an act of waste; and it was even held that where a tenant took wood which was unfit for these uses on the premises and exchanged it for that which was, it amounted to waste. (17 Pick, 248.) But in many of the newer States, and especially where timber is very abundant, different views have been expressed. In Ohio, a widow holding lands under a dower right — which is a life estate — was held to have a right not only to her estovers, that is wood for fuel and repairs, but also to have a right to cut wood to sell for the purpose of paying taxes and tak- ing care of the premises (2 Ohio, N. S., iSo), and where the dower consisted mainly of wild lands, it was held that she might cut and clear off all the timber from a portion of them for the pur- pose of getting land for cultivation. (8 Ohio, 418.) 3. Manure Made on the Farm. It is waste for the tenant to sell or remove manure made on the premises if they are leased for agricultural purposes, for it is implied, if not expressed, in leasing lands for such purpose, that all manure made on them in the ordi- nary course of farm procedure shall be used on them for the pur- pose of keeping up the fertility of the land. (21 Pick., 367; 17 Pa. St., 262.) A tenant on leaving the farm at the expiration of his lease cannot take with him any of the manure made by his cat- tle during his tenancy, though fed on his fodder. (6 Me., 222.) Even if he bought the fodder elsewhere he could not take away the manure. Indeed the manure made on the farm in the ordi- nary manner is regarded as a part of the land itself, and must not only be left by the tenant, but will pass with the land on a sale of it, unless specially reserved in the deed. (44 N. H., 120.) 4. Composted Manures. It is probable that not only manures made in the ordinary way by animals, but also that made by com- posting, if mixed with that made by the animals, must be used by the tenant on the farm or left there by him when he departs. It was held that where eel grass was gathered from a river and mixed and composted with the other manure that it must be left by the tenant. (48 N. H., 90.) It would be waste for the tenant to dis- pose of it otherwise than by using it on the farm. If it were not 11 HO MANUAL OF THE LAW. so mixed, or if it were made by some means entirely out of the ordinary course of husbandry, it would then probably belong to the tenant if it could be distinguished and separated from the other. (24N.H.,355.) 5. Purpose of the Occupancy. The purpose or object for which the possession of lanas was given has much to do with determining the question of waste. Of course it can never be waste for the tenant to do on the premises that for which they were specially leased, or any thing that he is specially authorized to do in his lease. But in the absence of any special agreement of this sort, the tenant can only put the premises to fair and reasonable use, and this depends often upon the previous use that the premises have been put to. It has been held to be v^^aste for a tenant of farming lands to go digging them over in search of minerals or ores. So it is waste for the tenant to sell clay or gravel off the premises; though if they had been used in these ways before it might make a difference. (6 Mumf., 134.) Likewise it is waste for the tenant to turn a dwelling house into a shop or stable. He must use the buildings also for their legitimate purpose. He can, of course, make slight changes or necessary alterations, and can even tear down old buildings which have become worthless or danger- ous. The principle in all these cases seems to be that the tenant must so use the premises as not to injure them or unfit them for their ordinary and legitimate use, and must take nothing from them except. his reasonable estovers. (16 Conn., 322.) Still it must be remembered that waste depends largely upon circumstances. Where timber was blown down by a tempest it was held not to be waste to cut up and sell it. (6 B. Monroe, 281.) Where land let for farming purposes was largely covered with timber it was held not to be waste to cut some of the timber and clear up more land, leaving sufficient for the purposes of the farm. (6 Barb., 9.) But this can now rarely be done. Where a farm in New York State was leased as a dairy farm the clearing of woodland upon it was held to be an act of waste. ( 10 N. Y., 114.) 6. Permissive Waste. This consists not in the occupant's doing any positive wasteful act upon the premises, but his allowing some one else to do so, or in his omitting to perform some doty toward the land which results in its permanent damage, or in suf- fering injuries to come to it which ordinary care would prevent. It often arises from failure to repair buildiners, etc. CONOEENINQ WASTE. H' 7. Failure to Repair Buildings. In respect to repairs upon premises the general rule is that the tenant is under obligation to make only such as are necessary to preserve the premises. He must exercise reasonable care and diligence for the preservation of the premises, and if he fails in this and injury results it is permis- sive waste. His duty is to use the premises with care and return them in as good condition as he got them, ordinary wear and tear excepted. It is waste for him to permit any stranger or trespasser to injure the premises, (i Taunt., 183.) 8. Injuries from Fires. If fire breaks out upon the premises by reason of the carelessness or negligence of the tenant or occu- pant, it is a waste for which he is liable; but for accidental fires for which he is not to blame, he is not liable unless he has agreed to be. (14 Johns, 210.) 9. Remedies for Waste. Where waste has been actually committed, the usual remedy is an action on the case for the dam- ages that have resulted from it. In some of the States, however, there are special statutory remedies for this wrong, the object in all being the same. But where waste has been only just begun or threatened, an injunction may generally be obtained to prevent it. These remedies may be had not only by the ovvner of the premi- ses which are injured or threatened to be injured, but by any one who has a lien upon them or other interests in them which may be jeopardized. Thus a mortgagee who has loaned his money on the land can generally restrain by injunction the mortgagor or occupant from committing acts of waste, though there is some variation In the laws of the different States upon this point owing to the different doctrines which obtain in respect to the nature of a mortgage. (See Ante., p. 55.) A purchaser at an execution sale has likewise these remedies for actual or threatened acts of waste by the debtor while still in possession. (2 Doug. Mich., 184.^ CHAPTER XVI. FENCES. 1. Common Law as to Fences. 6. When Division Fence not 2. Statutes Respecting Fences. Necessary. 3. Division Fences. 7. Exterior or Road Fences. 4. Fence Viewers' Duties. 8. Railroad Fences. '5. Fence Laws apply only to 9. What is a Legal Fence. Improved Lands. Perhaps there is no single legal subject that gives rise to more petty annoyances and disputes in a rural community than the law regarding fences. Fences are expensive. It is said that the fences of an average agricultural community cost more than the houses. People do not wish to build more than they are obliged to. These facts make the subject one of considerable importance. An under- standing of the legal aspects of the matter is desirable as a means of saving trouble and preventing litigation. 1. Common Lair of the Subject. At the English common law, as w^e have seen, a farmer is not obliged to fence his lands at all. He is not obliged to fence against his adjoining neighbor noi against the public in the highway. And he may maintain the action of trespass against the owners of any cattle or other domestic animals which enter and injure his premises although they are entirely unfenced; for it is just as much a trespass for them to cross his invisible boundary line as to leap over the most substantial stone wall. (19 Johns., 385.) He must, of course, see to it that he restrains his own cattle, for he is in turn liable for their trespasses. He is not obliged to keep his neighbor's cattle out, but he must keep his own cattle in. In brief, at common law every one must keep his cattle on his premises at his peril. FENCES. '43 This statement of the common law is necessary, because the common law is in force in many American States so far as it is not changed by statute. In some of the States, however, the com- mon law is held never to have prevailed, not being adapted to the circumstances of the people. 2. Statute Law of the Subject. The legislatures of practi- cally all the States have passed laws upon this subject of fences, which bear principally upon two points. They provide usually that partition or division fences between adjoining farms shall be maintained in equal shares by the adjacent owners; and tliey take from the owner of lands his right to sue the owner of trespassing cattle, unless the lands are enclosed with fences of legal bight and strength. The most succinct and accurate general statement of the fence law in America that the writer can make is that no one is obliged to fence his lands, unless his adjoining neighbor has gained the rio-ht either by agreement, prescription, or under the statutes above referred to, to have him maintain the whole or a portion of the partition fence between them. Another w^ay of stating the same law is that the owners of domestic animals which enter and do damage to lands because they are unfenced, are liable for the tres- passes, unless they can protect themselves by some agreement, pre- scription, or statutory obligation on the part of the complaining party to maintain a fence. The statute law of this subject is voluminous, and there is lack of harmony in the provisions of the several States. We can not point out the differences nor even dwell long upon the main fea- tures of these statutes. Were we to go into details, this subject alone would fill the book. But every owner of land should inform himself in this regard concerning the statutes of his particular State. The statutes can usually be found with any justice of the peace, or at the township clerk's office. In most states there is a provision for keeping a copy of the State statutes deposited with some offi- cial, usually the township clerk, for the use of the township; and any person having need of them has a right of access to them there. This fact is alluded to because every one having occasion to look up any point of law should ascertain the statutory provis- ions concerning it from some official source. Do not depend upon this book or any book for them, because they are liable •» change, 144 MANUAL OF THE LAW. and do change from year to year, but go to your town clerk or justice of the peace and examine the statutes themselves. 3. Division Fences. Where adjoining owners wish to improve their lands, especially if they wish to use them for pastur- age, it is necessary that there be a division fence between them. But as it would be foolish to require each to maintain such a fence, thus making two fences running parallel along the dividing line, there is, as above stated, statutory provision in the several States, requiring adjoining owners to maintain one division fence in equa] shares. That is, each must build half the fence, and if they can not agree as to which half each shall build, or if either refuses to build his share, these statutes provide a u:ethod by which the respective portions to be maintained by each may be determined, and by which either may- compel the other to build his share. Of course adjoining owners may agree between themselves as to who shall build the division fence, and as to how such fence shall be built. Such an agreement is valid, notwithstanding the law; and while it remains in force it supersedes the law. In many States there is a provision that if such an agreement is put in writ- ing and filed with the township clerk it shall become binding upon the parties always, and upon all subsequent holders of the land. Such a provision is a valid one, and the agreement in such case becomes in the nature of a covenant running with the land. (41 Wis., 671.) A mere parol or verbal agreement of this sort is not, however binding upon subsequent owners, and it will not bind the parties to it any longer than they wish to proceed under it. If either wishes to throw it up and proceed under the statute he may do so. (3iN.H.,24i.) One adjoining owner may, under certain circumstances, gain the right by prescription to have the other maintain the fence between them, but this is not of very frequent occurrence. i. Fence Viewer's Duties. When one of two adjoining owners refuses to build his half of the partition fence, or when they cannot agree as to which portion each shall maintain, then the fence viewers may be called upon to decide the matter. The fence viewers are officers elected or appointed in each township whose duty is, when called upon, to assign to each adjoining owner his respective portion of the division fence, and to decide whether FENCES. 145 or not any given fence, which may be in controversy, is a legal - fence, whether or not it complies with the requirements of the law. The office of fence viewer is often vested ex-offlcio in some other officer. In many States the overseers of highways, the path- masters as we call them, are by virtue of that office the fence viewers for their respective townships.* Any land owner or occupier, whose adjoining neighbor refuses to build half the division fence, or with whom he cannot agree as to which portion they shall respectively maintain, may call in the fence viewers. Upon being so requested, the fence viewers, after viewing the premises, determine and assign the respective portions of the fence to be maintained by each. The assignment when' so made and recorded with the proper officer, becomes binding upon the present and all subsequent owners of the land. (2 Wis., 14.) When the fence viewers have made the assignment, if either adjoining owner refuses to build the portion of the fence assigned to him, there is usually a means provided for compelling him to do so. Generally the other owner can go on and build the whole fence himself and can then recover from the owner who declines to build the cost of building half of it. And the same thing may be done in the case of a partition fence which is out of repair. Adjoin- ing owners have the same rights and duties with respect to repairing and keeping up a partition fence as in the case of building one. After the respective portions of the fence to be maintained by each adjoining owner have been determined, either by agreement or by action of the fence viewers, then neither owner ^can recover any damages for the trespasses committed by the other's cattle unless his portion of the division fence is in good repair and of legal hight and strength. If the injured party has failed to build his share of the fence, or if he has failed to keep it in repair, it is presumed that the cattle entered because of such failure, and his right to damages is taken away because of his neglect of duty. If he can show that the cattle did not enter over his part of the fence, or that they entered notwithstanding the insufficiency of his fence, then he could probably- recover damages. There is an early decision in Massachu- setts to that effect. (4 Mass., 471 ; 6 Mass., 90.) In some States * Such is the law in Michigan. The Michigan reader should carefully examine Chapter XXI of Howell's Statutes, which embraces the statute law of this subject, and refers, by foot-note, to the leading cases.— H. A. H. H<> MANUAL OF THE LAW. the duty to repair division fences is laid indiscriminately on both adjoining owners. This has been held to have the effect of depriv- ing each of his right to damages against the other for the tres- passes occasioned by failure to repair. (8 Ala., 492.) Division fences may be put along the dividing line and may extend half way on each side of it; and they are, when built and maintained by each of the owners, the common property of both; but when the respect- ive portions to be maintained by each have been duly assigned, then such portions belong to the owners who built them. An owner of improved land is only obliged to fence against cat- tle which are lawfully in the adjoining field. (37 N. H., 331.) If the cattle of a third person break into or unlawfully enter an adjoining field and from there enter the first party's land, said first party can recover damages from the owner of the cattle, no mat- ter whether the division fence is out of repair or is totally wanting. The division fence laws apply only as between adjoining owners, and third persons cannot take advantage of the provision depriv- ing the owner who fails to maintain his fence of his action for damages. (29 Me., 282; 6 Mass., 90; 17 Mich., 417.) 6. Fence Law Applies only to Improved Lands. The stat- utes relating to division fences apply only to improved lands. They do not require the owners of uninclosed, unoccupied or wild lands to build and keep up division fences. (31 Wis., 194.) Nor can one owner or occupant, who improves his land, compel his neighbor who does not, to unite with him in the maintenance of a fence between them. Both parties must improve their lands in order to make the statutes apply. Of course one owner can not evade the law by leaving a strip of unimproved land along the line of the division fence, or by purposely making his fence a few feet inside of the dividing line instead of on it. (22 Iowa, 572.) Such dodges are too palpably evasive of the law to be effective. In some States these provisions are held to apply to the occu- pants, and in others to the owners of improved lands. In Wiscon- sin, for example, it was held that a decision of the fence viewers requiring an occupant to erect or pay for a portion of the division fence was void, as the occupants of improved lands, unless they are the owners, are under no obligation to maintain fences. ( 19 Wis., 49. ) While in other States the obligation to fence is laid upon occupants, no matter what their title; and it seems that in such case any occupant, no matter what his rights as to ownership FENCES. H7 are, may enforce the law against an adjoining occupant (17. Wend., 320), if the latter has sufficient title to authorize him to construct the fence. (36 Mich., 417.) 6. When Division Fences not Necessary. The provisions for the maintenance of division fences are for the mutual benefit and protection of adjoining owners or occupants who desire to improve their lands. Whenever one owner does not improve his land, the necessity for him to contribute toward the maintenance of R division fence ceases. The obligation does not arise, at least, until he improves his land. Even after the respective portions to be maintained by each have been assigned and the fence has been built, either party may, in some States, withdraw from the arrange- ment. If he wishes to throw open his land and cease improving it, he may, on giving notice to that effect to the adjoining proprietor, remove his portion of the fence. (3 Wend., 142.) Adjoining parties may also, by agreement, dispense with the fence between them; being for their mutual benefit only, no one can complain if they choose to do without it. In both the above cases, or in any other case When the dTvision fence has been dispensed with or never built, the common law pre- fails between the adjoining proprietors. Each is presumed to fall Jack upon his common law liabilities and to be satisfied with his ,.ommon law protection. Each must keep his beasts upon his own premises, or become liable for the damage caused by their tres- passes. (17 Mich., 417; 45 111., 76; 9 Ind., 290.) When a division fence is thus dispensed with, the adjoining own- ers ought, as a matter of precaution, to make an agreement that neither shall be liable for the trespasses of his beasts upon the other's land. 7. Exterior or Road Fences. With respect to outside fences, we have seen that at common law there is no obligation on the part of land owners to maintain them. There is no obligation to maintain such fences imposed by the statutes of the American States. All that is done is to take away the right of action for trespass from such owners as fail to inclose their lands with fences, and this is done only in a portion of the States. Where it is done, however, or where under a general law the people of a township by vote allow cattle to go at large in the highways, or where as in Illinois, Iowa, Mis£o:jri, Oregon, and some other States, it has been held Uwful for cattle and other domestic animals to go at h8 manual of the law. large, there the owners of land are left to protect their premises against the trespasses of such animals by such means as they may think best. They are in effect required to fence their lands if they wish to cultivate them. This subject is closely connected with that of cattle in the highway, which is treated in the next chapter, and to which the reader is referred. If one had upon his premises any dangerous pit or miry spring, he would be required to either fence it or take such precautions as would prevent harm from it to other persons or their cattle. ■ The fact that the owner must guard a dangerous place of that sort may occasionally add to the obligation of fencing, and it consequently is referred to here. 8. Railroad Fences. The statutes of many of the States require that railroad companies shall maintain good and legal fen- ces on both sides of their tracks. Where there are no such statutes such companies are under no obligations to fence their roads. If cattle or other domestic animals enter because there are no fences they are trespassers, and if while there they are killed or injured by th*e cars, their owners cannot recover damages unless the rail- road company is guilty of very gross negligence or intentional wrong. This is the general rule, and there are many cases in which it has been appHed. (5 Denio., 255; 29 Me., 307; 17 111., 131; 19 Pa., 298.) Where cattle are lawfully in the highway, under provisions allowing cattle to run at large, and from there they stray upon the railroad and are killed, the rule is also applied. There can be no recovery of damages, because it is regarded as negligence for a person to allow his cattle to go at large in the highway in the immediate vicinity of a railroad, whether the rail- road is fenced or not. (14 Barb., 364; 11 ib., 112.) Where, however, there is an obligation to fence, there the rule of liability is changed. Until such fence is duly made the railroad company is liable for all resulting damage to live stock, and it in some States cannot show in defense any contributory negligence on the part of the owner of the live stock, the statute requiring fences being a police regulation, and the action for damages being based upon it, the negligence of the plaintiff cannot generally con- stitute a defense. (28 Mich., 510; 13 N. Y., 43; 30 Ind., 321.) When the railroad company has built the required fence its lia- bility then ceases, unless it is guilty of some other negligence. If the fence is blown down by violent wind, and before the company FENCES. 149 has notice of it cattle enter and are injured without other fault on the company's part, the company is not liable. It is not obliged to keep a night patrol to see that its fences are not blown or broken down. (27 111., 55.) So if the fence gets out of repair without the company's fault, it is entitled to reasonable time in which to repair it, and if, before it has had reasonable time, injury results, there is no liability. (33 111., 289.) But the company is held to a high degree of diligence in all such matters. So, also, if some stranger wrongfully opens the fence, or if an adjoining owner carelessly leave the gate open, the company will be relieved from liability, if not itself grossly negligent. If cattle get upon the track, even unlawfully and wrongfully, the engine driver is not for that reason warranted in running them down and wantonly killing them. If he does so the company will be liable. (37 Ark., 563.) But the engineer is not necessarily required to stop his train or even slacken his speed if he reasonably believes that by blowing the whistle he will frighten the cattle off. (37 Ark., 593.) Under the statutory provisions requiring railroad companies to fence their tracks, it is not necessary or even proper that the tracks should be fenced at all places. The statutes obviously do not require the enclosing of railroads at places where the public neces- sity or convenience demands that they be left open, as at the cross- ings of streets and spaces in front of mills, elevators, depots, or freight houses. (28 Mich., 510.) But under this exception com- panies have no right to throw open their tracks throughout the entire length of a city or village, as they often do, as the exemption only extends to places where it would be obviously improper and unreasonable to fence. (29 Ind., 471.) While a railroad company which has failed to build or maintain its required fence cannot generally escape liability by showing that cattle injured or killed were unlawfully in an adjoining field, or negligently allowed to go at large in the highway (29 Barb., 64.), still a statute making railroad companies absolutely liable for such injuries under all circumstances would not be good law. Consequently a law in Alabama making railroad companies abso- lutely liable for all stock killed on the tracks was held to be uncon- stitutional. (66 Ala., 85.) 9. What is a Legal Fence? The statutes of the several States define in most instances specifically what shall be deemed a legal and sufficient fence. The provisions are far from uniform, '50 MANUAL OP THE LAW. and, being so numerous, of course cannot be given here. In some States, as in New York, the electors of each town may, by vote, decide for themselves as to how fences shall be made and what shall be deemed sufficient, though it has been held in that State that it is a part of their common law that adjoining owners may erect crooked or Virginia fences as division fences, placing them equally on each side the line. (i8 Barb., 397.) In Michigan all fences four and one-half feet high, and in good repair, consisting of rails, timber, boards, or stone walls, or any combination thereof, and all brooks, rivers, ponds, creeks, ditches, and hedges, or other things which shall be considered equivalent thereto in the judgment of the fence viewers within whose juris- diction the ^ame may be, are deemed legal and sufficient fences.* In Missouri a legal fence may be a hedge, or any " fence suffi- ciently close, composed of posts and rails, posts and palings, posts and planks, posts and wires, palisades, or rails alone laid up in the manner commonly called a worm fence, or of turf with ditches on each side, or of stone or brick." Hedges must be four feet high, post fences four and one-half feet high, turf four feet high with ditches on each side three feet deep in the middle and three feet wide, worm fences must be five and one-half feet high to the top of the rider, or if not ridered five feet to the top of the top rail, and must be locked with strong rails, poles, or stakes. Stone or brick fences must be four and one-half feet high. (Laws, Mo., 1877, p. 8.) For detail information concerning the requirements of a legal fence in any particular State, the reader is referred to the statutes of that State, to be found, generally, with any justice of the peace or township clerk. *See HowcU'i SUtutci, Vol. I, pace 36a. CHAPTER XVII. CATTLE IN THE HIGJ^WAT. I. A Qnestion of Expediency. a. A Question of Right 3. Summary. 1. A Question of Expediency. Whether it is proper ana expedient to allow cattle and other domestic animals to roam at large and pasture in the public highways of the country, is a question that has occasioned much discussion among farmers. On one hand it is claimed that to allow them there necessitates the maintaining of strong exterior fences, the constant watching of gates, the endless annoyance of persons using the roads, besides occasional injuries to crops in spite of all precautions. In addition to these it is claimed to be an injustice to adjacent proprietors who own really to the center of the roads, and who are justly entitled to every benefit and use that can be got out of them, subject only to the public easement or right of travel and the right to repair. On the other hand it is claimed, with possibly equal force, that were cattle not allowed to depasture the highway, the grass and other herbage growing there would be practically lost; that it is no detriment to the adjacent owner to have such herbage grazed off, as he would never utilize it himself; that he would be obliged to maintain exterior fences anyway (because cattle, being lawfully driven along the roads, would otherwise escape into his fields and injure his crops, and the owners of such cattle would not be liable for such injuries if the cattle escaped without their fault); and further that it is a great benefit to community and especially the poor to have cattle thus feed upon what would oth- erwise be lost, — many a poor widow is thus enabled to keep a cow, 15* MANUAL OF THE LAW. and so support herself and family, who otherwise might be reduced to want. It is asserted further that in many communities, especi- ally those but newly settled and yet undeveloped, it is a matter of absolute necessity that domestic animals have the freedom of the highways and neighboring uninclosed lands. There is not enough land enclosed in many such communities to pasture half the cattle, and indeed it is not possible for farmers to enclose more than they actually cultivate. These two opinions have led to a diversity of legislation upon the subject, and consequently to a lack of uniformity in the law of the matter in this country at the present time. 2. A Question of Right. As has been repeatedly stated, it is at the English common law a trespass for cattle to roam unat- tended or pasture in the highway. Every man must keep his domestic animals upon his own premises at his peril. This may be said to be the fundamental law of this country, except so far as it is modified by statute; and the validity of such statutes as delib- erately provide for the running at large of domestic animals has been seriously questioned. However there are such statutes in nearly all the States, as only a few of the eastern and older States have seen fit to retain or return to the common law provisions upon this point, and while we cannot go into details, we shall endeavor to so group the general outlines of these statutes that the reader may get a fair idea of their scope and effect, and for particulars may refer to the detail provisions in force in his own State. Remembering the fundamental right of every man, over whose farm a highway runs, to every use of the highway which does not interfere with the public right of travel, we find that this right is guaranteed and protected only in Massachusetts, Maine, New Hampshire, and possibly a few other of the older States which have become more or less completely settled and developed. But even in these States there does not seem to have been a case reported in which damages have been awarded simply because cattle trespassed upon land in the highway. It has been held only that it is unlaw- ful for them to be there, except for purposes of travel, and if they are there unlawfully and escape into adjoining land because the fence is deficient or altogether wanting, their owner is liable for all the damage they cause. (4 N. H., 516; 19 Johns, 385.) So stringently has the rule, that every man must keep his cattle upon his own premises, been enforced, that it was held that where a OA.TTLE IN THE HIGHWAY. 153 stranger roaming over one's farm left the gate open and his cattle escaped into the highway, and from there went into another's com field, that the owner was responsible for and must pay the dam- ages, though not himself at fault. (30 N. H., 143.) But this was rather an extreme case. 3. Statutes on the Subject. The most common statutory modification of the common law rule on this matter is that which takes away the action of trespass from every land holder who does not erect and maintain sufficient exterior fences about his land. These statutes do not legalize the presence of cattle in the highway, but they simply deprive the farmer of his remedy for trespasses by cattle unless his lands are fenced. The validity of these laws does not seem to have ever been questioned, though they have been very generally enacted in the Middle, Western, and many Southern States. The people seem to have acquiesced ' in them without complaint, for the reason, possibly, that they have not been put thereby to much extra trouble or expense. Exterior fences are practically necessary any way. It is lawful to drive cattle along the road, and if without the owner's fault they break away and injure adjoining crops, he is not responsible, if he drives them out as soon as he reasonably can. (114 Mass., 466.) Another modification of the common law rule, which has been adopted in many of the Middle and Western States, is that embod- ied in statutes providing that the electors of any town may decide by vote whether cattle shall be allowed to run at large in the highways. The validity of these provisions has been questioned in several instances, thougli as a rule they have been accepted and acted upon by the people without serious objection. In several New York cases, however, their propriety has been doubted. In Tona- wanda R'y Co. v. Munger (5 Denio, 253) the court say that the legislature has no power to authorize towns to vote that cattle may depasture the highway unless compensation is made to the owner of the fee of the way; otherwise the towns would be giving away something that they do not own, and depriving people of their rights without paying for them. In another case (4 Barb., 56) the court held incidentally that the power of the town in this direc- tion could not be extended beyond allowing the adjacent owners to graze their own cattle upon such portions of the highway as "54 MANUAL OF THE LATV. they respectively own. Such a construction of the law of course defeats its main purpose, which is to benefit the poorer inhabitants rather than the great land owners. In still another case a contrary view was taken, it being held that sucli power could be authorized, because when the highways were laid out and paid for, compensa- tion was made for all rights and interests which the public could make use of under the law, and the right of pasturage being pro- vided for by law must have been contemplated and included when payment was made, and hence has become a public right like that of travel. (19 Johns, 385.) In Michigan there is a provision that the board of supervisors may by resolution regulate the time and manner in which domestic animals may run at large, but the supreme court of that State question its constitutionality. What- ever rights the public may have in the highway, a common pas- turage is not among them. (39 Mich., 365.) In some States where the common law on this point has been thus modified, and where it may be said to have lapsed by reason of the universal custom of disregarding it, statutes have been enacted providing, in express terms, that it is unlawful for domes- tic animals to roam in the highways. The efiect of such statutes is presumably to restore the incidents of the common law. In Michigan, for instance, there is a statute providing " that from and after the year 1867 it shall not be lawful for cattle, horses, sheep, and swine to run at large in any highway of this State." * The act is made inoperative in any county in which the board of supei-vis- ors see fit, by resolution, to make it so. The act provides that it shall be the duty of all overseers of highways to seize and take into custody all such animals found at large in their respective dis- tricts contrary to the provision of the law ; also that it shall be lawful for any person to seize and take up any such animals found at large in the highway opposite land owned or occupied by him, or found trespassing anywhere on his premises. When so taken up such animals are to be advertised for sale, and, if not redeemed by the owner within a certain time, are sold, and from the pro- ceeds compensation is made to the person taking the animals up for his trouble and for any injury that he may have suffered. The balance, if any, is turned over to the township treasurer for the use of the town. The statute has been pronounced constitutional by the supreme court. (39 Mich., 451.) * See Howell's Statutes, J 2106. CATTLE IN THB HIGHWAY. 155 3. Summary, To put this matter into a single paragraph, it may be said: In the Eastern States generally it is a trespass for domestic animals to depasture the highway, and unquestionably an actionable trespass for them to enter upon land from the high- way whether such land is fenced or not. In the Middle and some of the Western and Southern States, while their presence unat- tended in the highway is probably an intrusion upon the rights of adjacent land owners, there are provisions for the electors of towns to allow them there, and while such provisions are in theory not valid, still the people have in the main submitted to them without serious complaint and without definitely establishing their invalid- ity in a single State. In many of the States included in the last mentioned group, and in the newer States generally, there are pro- visions which, while not expressly permitting the presence of cattle in the highway, deprive the f arrner who fails to fence his land along the road of his remedy against the owner of cattle that escape therefrom and injure his crops, which amounts practically to about the same thing. Finally there is a growing disposition, as the country becomes developed, to return to and enforce the common law requirement that every man shall keep his domestic animals upon his own premises. 12 CHAPTER XVIII. LiAmLJTY FOR THE ACTS OF ANIMALS. 1. General Rule as to Trespasses. « 6. Keeping Wild Animali. 2. Exceptions to General Rule. 7. Injuries by Dogs. 3. Injuries by Vicious Animals. 8. Dog Laws. 4. Owner Liable if Negligent. 9. Dog Fights. 5. Contributory Negligence Excuses. 10. Who Liable for Injuries. 1 . General Rule as to Trespasses. We have seen that it is the owner's duty to keep his domestic animals upon his own premises. If he fails in this duty, and they escape upon other people's premises and there do injury, it is a trespass for which an action will lie and for which damages may be recovered. 2. Exceptions to General Rule. Like all legal rules, this has its exceptions, and the principal one is that where the trespass is committed because of the failure of the injured party to main- tain some fence, which he is under legal obligation to maintain, either by force of some statute, or some agreement, or some pre- scriptive right, then the right to recover damages is cut off. Or where the trespass is committed without any possible fault on the part of the owner, as where he is driving his cattle lawfully along the highway, and they escape into adjoining lands in spite of his precautions to the contrary, and he takes diligent and speedy steps to get them back, then there is no liability. This matter of tres- passes by animals has been so fully considered indirectly in the last two preceding chapters that it seems proper to drop it here and proceed at once to the more important matter falling under the title of this Chapter, namely: LIABIIilTT FOR ACTS OF ANIMALS. 157 3. Injuries by Ticions Animals. For the vicious acts of domestic animals, like kicking, hooking, or biting, the owner is liable, but his liability depends upon some knowledge on his part of their disposition or propensity to do such things, and upon his failure to take such precautions to prevent an injurious exercise of that propensity as such knowledge would cause a prudent man to observe. From this statement of the law, we see that the liability is really simply a question of negligence. 4. Owner is Liable if Negligent. If a man owns or has charge and keeping of any animal which he knows has a dispo- sition to do harm, it is his duty to so restrain that animal or to take such reasonable precautions as will prevent others from being mjured by it. If he fails of this duty, and the injured party is in no way at fault, then he is liable for such injury as is directly traceable to his neglect. Some knowledge of the animal's, evil propensity is of course necessary in order that the owner may be put on his guard. And, as to what will constitute sufficient knowl- edge or notice in this respect, it is said that it must be such as would satisfy a reasonable and prudent man. It is not necessary that the animal should have previously, to the owner's knowledge, com- mitted mischief, but if it has exhibited a disposition or propensity to do so it is enough (5 Strob., 196), though if, on a single previous occasion the animal has committed a vicious act and the owner knows it, that is said to be sufficient to charge him with liability. (25 Conn., 92.) Still the notice must be- of a propensity to do the act which did the harm. Notice that a dog will worry sheep is not notice that he will attack a person, nor is notice that a horse will run away notice that he will kick or bite (66 111., 309), though it is held that knowledge that a bull attacks and gores other ani- mals is sufficient warning that he would in like manner injure per- sons. (27 Pa. St., 331.) Consequently if one owns an ugly bull it is his duty to so restrain as that it cannot injure anybody. But even if he fails in this, and somebody else, knowing the bull's evil nature, recklessly puts himself in its way, and so is injured, there is no liability. 6. Contributory Negligence Excuses. It is obvious that it would not be right to allow one to recover damages for an injury which he himself helped to brmg about. So if one needlessly ventures too near a bull which he knows is ugly or a horse which ■58 MANUAL OF THE LAW. he knows will kick, he can recover no damages if he is injured^ though the owner was guilty of gross negligence in allowing the animals to be unrestrained. But if a little child incapable of obser- ving and guarding against danger, or too young to be guilty of contributory negligence, goes near and is injured, without fault on the part of its parent or guardian, then the owner is liable. (4 Allen, 431.) The owner should not have left it unrestrained in any place where small children would be likely to come near it. It has been repeatedly held that it is no defense, to an action for damages caused by a vicious animal, that the injury complained of was committed on the owner's premises and that the person injured was at the time a trespasser (17 Wend., 496); unless the trespass amounts to contributory negligence it cannot be set up as a defense; for a man cannot defend his premises by such means as a ferocious animal, any more than by setting man traps or spring guns. ( 14 Conn., I.) If a man keeps a ferocious bull upon his farm and allows it the freedom of his pastures, and persons casually crossing the farm, with no other fault or carelessness on their part save that of being upon the land without permission, are injured by the bull, the owner is unquestionably liable (3 C. & P., 138); or if one keeps an ugly and savage dog, and persons hunting in his woods, even on Sunday, are bitten by it, he will have to pay for the injury, though he did not set the dog on. (17 Wend., 497.) Doubtless one may defend his premises against burglars by such means as a savage dog; but if the dog bites any one coming to the house on any innocent purpose, even in the night time, the owner will be liable. One may drive trespassing cattle off his premises by setting a dog upon them, and he will not be liable unless the dog unnecessarily worries or seiiously injures them (9 Mich., 158; 23 Vt., 236), nor will he be liable if after being driven off the cattle stray away and are lost. (18 Pick., 227.) But if he were to kill the cattle simply because they were trespassing, he would be liable for their value (4 Tex., 493); and the same would be true if he killed hens simply because they were in his garden (107 Mass., 406), or dogs simply because he thought they had been interfering with his hen's nests. (5 Ind., 216.) The law affords him another and more civilized remedy in all these cases. There are many cases holding that if a man turns his animals into the highway he becomes liable for all the damage they do there, no matter whether he knows they have vicious dispositions LIABILITY FOE ACTS OP ANIMALS. 159 ■i. or not. (4 Allen, 444.) Aside from the illegality of so doing, the act is deemed gross negligence, and such as will of itself charge the owner with liability. (39 N. Y., 400.) In one case this doctrine was carried so far that a man who turned his horse to feed in a public place, where some little children were playing, one of whom began switching the horse and was by it kicked and killed, was convicted of manslaughter. ( 10 Cox., 102.) But this extreme doctrine can not be said to be the law of America at the present day, as the weight of authority vests the liability only upon some negligence — or failure to exercise such care and precaution as a prudent man would under the circumstances. Still it is not safe to say that where breechy animals break into a field in spite of the legal fences that may enclose it, that the owner is not liable for anything more than the herbage they destroy if he does not know them to be vicious. There are so many cases holding the owner liable under such circumstances, not only for herbage destroyed, but for injury done to other stock, like goring, kicking, etc., and this, too, irrespective of his knowl- edge of the viciousness of his beasts, that it may be said they con- stitute this class of cases an exception to the general rule above laid down. (5 N. J., S15; 7 W. & S., 367; 16 Conn., 200; 44 Me., 322.) Some of the law writers and many of the older decisions hold that the mere keeping of an animal which the owner knows to be vicious and dangerous, is of itself in theory unlawful; and upon this ground they hold such owners liable whether they are guilty of any other negligence or not. (3 C. & P., 138.) But this can not now be said to be good law. It is not unlawful to keep vicious animals. If one has such animals he simply must take such care, and observe such precaution as a reasonable and prudent man would to prevent their doing injury. And if in spite of these pre- cautions the animals escape and do harm, there is then no liability. 6. Keeping Wild Animals. The keeping of wild animals like lions, tigers, bears, etc., was formerly regarded as unlawful and the owner was held responsible for any harm done by them without any proof of negligence on his part. (9 Q. B., (N. S.) loi.) But this, like the keeping of vicious domestic animals, can not longer be regarded as unlawful. The necessities, tastes and habits of modern civilization have changed this, and the keeping of such animals for the entertainment and instruction of the people is now i6o MANUAL OP THE LAW. not only lawful but is a recognized legitimate business. And all that can now be required of the persons who keep such animals for any such legitimate purpose, is the exercise of that careful pre- caution and watchfulness which the necessities of the case demand. (Cooley on Torts, p. 350.) They must of course take note of the natural propensities of such animals to do harm, and of any pecu- culiar individual viciousness they may manifest, and they must provide such safeguards against the injurious exercise of these dis- positions as the reason of a prudent man would dictate. Having done that, community must be satisfied. They can not be held to be insurers of the lives and safety of all persons against every pos- sible harm that their beasts may do, for if despite their great care, and notwithstanding their ample precautions, such animals manage to escape from them and do harm, the case must be referred to the category of accidental injuries for which no action will lie and no damages can be recovered. (8 Barb., 360; 34 Mo., 199.) Possibly if a farmer should attempt to keep a lion or panther on his farm, this more liberal doctrine would not be applied. It would be so obviously frivolous and foolhardy for him to under- take such a thing that he ought to be held an insurer against all injuries resulting from it, and there would be no impropriety nor injustice in enforcing the old common law liability upon him. But in the case of one legitimately in the business — like the proprietor of a menagerie or zoological garden — nothing more can be prop- erly required than the exercise of adequate care and prudent cau- tion. Nor can it be longer held unlawful to exhibit such animals under certain proper circumstances in the public highways; tlie frequency of menagerie processions — the propriety of which is so generally acquiesced in and applauded by the public — having mod- ified the stringency of the old doctrine that it is unlawful to bring such animals into the public streets. Consequently when in New York State a horse took fright at an elephant, which was being driven along the highway, and injury resulted, the owner of the elephant was held not to be responsible. (38 Barb., 14.) 7. Injuries Iby Dogs. As almost every farmer keeps one dog, and some farmers two or three, it will be well to look a little further and examine a little more particularly than we have so far done as to their standing in the law. Primarily, and in the absence of statutes, they stand upon the same legal footing as other LIABILITY FOK ACTS OF ANIMALS. l6l domestic animals, so far as injury done by them is concerned. Their owners are liable for, and only for, such damages done by them as from their general nature and individual character and dispo- sition they may be expected to do. A dog which has exhibited no vicious propensity can not be reasonably expected to do any harm by being allowed to go at large. Consequently it is not negligence to give a right minded dog the freedom of the master's premises, nor is it an actionable trespass if the dog, of his own accord, crosses or enters upon the premises of a neighbor. But when the dog exhibits any vicious disposition or evil propensity, then an additional duty at once devolves upon its owner. That duty is to take adequate steps to prevent any harm from resulting from such disposition or propensity, and on failure to perform such duty, the owner becomes liable for the injury if the injured party is blameless. If the owner is notified that the dog has the habit of worrying sheep, or that he will attack persons or animak, he becomes liable from that time, if he keeps the dog, for all such damage as he may do. (75 111., 141; 19 Pa. St., 359.) 8. Dog Laws. It is not safe to state that the law as above laid down is the law of this country generally, because there are stat- utes in many of the States fixing the liability of owners of dogs for injuries done by them. We can not analyze or even group these statutes because they are too numerous. Their most common provision is to remove the necessity of proving scienter, that is, that the owner of the dog which did the damage knew of the dog's evil propensity. In the absence of statute such proof is nec- essary, but our legislators seemed to have believed that every one should feel the force of good Dr. Watts's quaint couplet: " Let dogs delight to bark and bite For 'tis tlieir nature to." Consequently it has been quite generally provided that the owner of a dog shall be responsible for its bites and other vicious acts, whether his attention has been called to any particular pro- pensity m that direction or not. Another very common provision of these dog statutes is to make it the duty of every one, as soon as he finds that his dog has become savage and dangerous, or has become addicted to sheep stealing or sheep worrying, to kill it at once. The mere keeping of such a dog is made unlawful, and the fact that the owner endeavors to keep it so restrained that it can l6» MANUAL of THE LAA^. not do harm will not protect him. By keeping the dog he assumes all risks, including possibly that of being prosecuted under these statutes for so doing. In some of these States the statutes provide for the recovery of double damages by the owners of stock injured by dogs. Other statutes provide for a remedy against the town for injuries to sheep by dogs whose owners can not be ascertained; still others that where the dogs of several proprietors unite in a sheep-stealing expedition, each owner shall be liable for all dam- age done. But the details of these statutes, or the provisions of those for each particular State, can not be here given. For such information the reader is referred to the statutes of his own State. 9. Dog Fights. Question has sometimes arisen as to who is responsible for the consequences of a dog fight. Dogs are noto- riously liable to fall to fighting just for the sake of the thing itself, with apparently no particular provocation or just cause. They often thus do great damage to each other, not infrequently fighting to the death. They are now, with us, unquestionably the subjects of property, and their owners can recover their value if they are unlawfully killed. It is therefore not a frivolous question to ask who, if any one, shall be liable when they kill each other. The scarcity of reported cases in point upon the matter renders it diffi- cult to speak with certainty ; but it is probably safe to say that the general rules of liability applicable to the case of the keeper of vicious animals generally apply to that of the owner of a dog which viciously kills or injures another dog. If a man owns a dog having a propensity to wantonly attack and kill other and especially smaller dogs, it is his duty to guard against the injurious exercise of that propensity. Still it cannot be said that because a dog is unwilling to have other dogs trespassing upon its master's premises _it is therefore to be regarded as a dangerous animal. To attack and drive off dogs suffered to go at large to the annoyance and danger of the public might be a virtue. It is at least a very differ- ent thing from attacking persons who are trespassers, and the cases where dogs have attacked human beings who were trespassers, and the owners were held liable are not applicable. (22 Barb. 5o6-) Owners of valuable dogs must take care of them in proportion to their value, and keep them upon their own premises or at least under their own eyes. If they allow them to go at large they must take the risks of such dog fights as they may get into. The law can not attempt to go into t*^* merits of a dog fight and say LIABILITY FOK ACTS OF ANIMALS. 163 which dog is blamable and which is not. The proprieties of dog conduct cannot be determined by the judicial tribunals of the land. Consequently if dogs get to fighting without fault on the part of the masters there is no liability for the consequences. In Mich- igan there w^as a statute requiring the owners of all dogs to pro- cure licenses for them and keep them collared, and making it law- ful for any person to kill any dog found going at large not licensed and collared. While this statute was in force a large dog meet- ing a small but valuable one, and observing that it was not collared as required, proceeded to execute the law^ upon it by killing it forthwith. The owner of the small dog brought suit against the owner of the large one who endeavored to shield himself under the provision of the statute making it lawful to kill unlicensed dogs. But the Supreme Court of that State said (34 Mich. 283) that a statute under which a party in so summary a manner is to be deprived of his property by having it destroyed cannot be extended by such a construction. The power of the legislature to pass the act was not questioned, but it was held that it must be strictly construed. If it allowed persons to kill unlicensed dogs the authority could be held to extend to animals also. 10. Who Liable for Injuries. The duty of guarding against injuries by vicious animals rests upon the one having the care and custody of them, whether he is the owner or not. (16 Ind., 251; 32 Cal., 102.) If a farmer takes horses or cattle to pasture he becomes liable for their trespasses and for their vicious acts. And the same is true of dogs. They are presumed to belong to the person who harbors or keeps them, and such person is liable «•■ their owner. (3 Allen 191.) CHAPTER XIX. INJURIES BY DOMESTIC ANIMALS. 1. Legal Remedies for Injuries by 5. Damages Done by OiickeBi Animals. and other Fowls. 2. Remedies for Trespasses. 6. Remedy for Vicious Injuries. 3. Impounding Cattle. 7. When Vicious Animals may 4. Turning Trespassing Cattle into be Killed. the Highway. 1. Legal Remedies for Injuries by Animals. When a wrong has been committed, through the agency of a domestic animal, there are several ways in which it may be righted. In the first place it may be forgiven. We are admonished by the good book to forgive our neighbor's trespasses, and although it says nothing about forgiving the trespasses of his breechy cows or long nosed pigs, I know of no Christian grace more becoming a rural gentleman, or more essential to suburban peacefulness, than that of clemency in this direction. Many a bitter country quarrel, with all its black accompaniment of vindictive acrimony, has ensued because of a little lack of forbearance, when, for the fourth time within an hour, perchance, one has rushed out on a hot summer afternoon to drive his careless neighbor's pigs out of the potato patch. Still there are times, unquestionably, when forbearance certainly ceases to be a virtue, and when not only propriety, but duty and necessity compels one to proceed to extreme measures. Our pro- gress towards a higher type of agriculture, towards rural order and tidiness, and proper respect for property, is aided often by people taking occasionally a bold stand upon their legal rights. When the time arrives therefore to do so, it becomes necessary to know not only those rights but the proper remedies for an infringement of them. INJ-UEIES BY DOMESTIC ANIMALS. 1^5 3. Remedies for Trespasses. For the trespasses of domestic animals, that is for their unlawful breaking into or entry upon lands, their owner or "agister" — as the person charged with their keep- ing is called — may be proceeded against by a suit at law in the action of trespass for a recovery of the damage done. In such a suit, if successful, a judgment may be had against the defendant for the amount of the damages and costs. But this remedy will be found jn many instances to be ineffectual. The defendant may be pecuniarily irresponsible, the very cattle that committed the tres- pass may be exempt from execution, and consequently the judg- ment can never be collected. Or it may not be known to whom the trespassing animals belong, and the difficulty of ascertaining may, in many cases, cost the injured party more than the damages amount to; or if this be known, and a suit for damages be insti- tuted, such suit will not prevent another trespass the next day, and hence another suit may be necessitated. For these and other reasons the law has long afforded the farmer a more summary and uncererhonious method of relief for trespasses by domestic animals, namely, that of distraining them and impounding them in the town pound. 3. Impounding Animals. When domestic animals, such as cattle, horses, sheep, or swine, unlawfully break into and enter upon one's lands and there do injury, they may generally be impounded in the town pound and there be detained until their owner pays the amount of the damage they have done. This is now purely a statutory remedy, the old common law method of taking cattle damage feasant having been superseded, and great care must be taken whenever the proceeding is made use of to conform strictly to the terms of the statute authorizing it. Being an ex parte proceeding, the owner of the animals having little or no voice in the matter, the letter as well as the spirit of the law must be observed. The varying details of the statutes regulating this method in the different States cannot, because of their length, be given here. Reference must be had to the statutes of the State in which the reader lives, before he takes any steps in the matter, for if anything is omitted, or wrongly done, the whole thing may fail. (35 111., 417,) The general outlines of the method are as follows: When any person finds any horses, cattle, sheep, swine, goats, or asses (in Mass. hens also) unlawfully upon and doing damage to hi* l66 MANUAL OF THE LAW. premises, he may at once drive them to the town pound, leaving with the pound keeper a memorandum in writing, stating the cause of the distraining and the sum demanded for the damage done by the beasts. If the owner comes for them he rflay have them on paying said amount and the poundmaster's fees, etc. If he does not come within twenty-four hours, notice must be given to him or left at his house, giving a description of the beasts and the time place and cause of impounding. If the owner is not known or cannot be found such notice must usually be posted in three or four conspicuous places in the township, and also published in some local newspaper. If the owner does not then come and pay the amount within a specified time, the animals are advertised and sold, and from the proceeds payment of the damages is made to the injured party, and the balance put into the .town treasury. If the owner comes and is dissatisfied with the amount claimed by the person impounding, the just amount of damages may be determined by two discreet persons appointed and swrorn by a justice of the peace. If the amount so determined is not forthwith paid, the animals are advertised and sold at auction. The proceeds of the sale, after paying the damages, fees, and expenses, are turned over to the township treasurer for the use of the owner of the beasts, who may get them any time within two years. If the beasts escape from the pound, or are rescued by the owner, the pound- master may retake them whenever and wherever he can find them; and in case they are forcibly rescued, the owner is subjected to a heavy fine. In many States there is a provision that whenever one's beasts are distrained and impounded he can bring the action of replevin against the person distraining, on the trial of which cause the dam- ages sustained by the defendant may be ascertained and judgment given him therefor, together with the costs and expenses, which judgment must be paid before the beasts are delivered; or if they are delivered before judgment, a bond must be given to secure payment of such damages and costs as are awarded. 4. Turning Trespassing Beasts Into the Highway. Another way in which a farmer can proceed when he finds ani- mals trespassing upon his land is to quietly turn them out into the road. It is lawful for him to do this, and he is not responsible to their owner Jf they then stray away and are lost (i8 Pick., 227)1 nor will he be liable if they there meet with an accident and are INJUBIES BY DOIIESTIO ANIMALS. 167 injured. (32 Pa. St., 68.) Nor if they there do injury to other animals or persons in the hig-Iiway will he usually be responsible. In driving cattle off from one's premises he may use a dog to hasten their departure, and he will not thus render himself liable if the dog does not unnecessarily worry them or do them bodily harm. (23 Vt., 236; 9 Mich., 158.) But he will not be justified in inflicting injury upon them because of their trespasses; nor in set- ting a ferocious dog upon them. In Indiana a man set a large fierce dog upon a mare which had jumped over a secure fence into his cornfield. The dog so chased the mare that she ran against a snag and was injured so that she afterward died. The court held the man liable, and he had to pay the value of the mare (6 Blackf., 258.) Nor can one set traps or spring guns for trespassing ani- mals to fall into or be injured by without being liable if they are so injured, and as we have seen, he cannot ever take their lives merely because they are trespassing. (2 E. D. Smith, 90.) 6. Beraedy for Damage Done Iby Fowls, etc. The above remark applies also to trespassing chickens, custom to the contrary notwithstanding. One cannot shoot his neighbor's hungry hens because they keep coming upon and scratching up his newly made garden. In one case in Connecticut a man who had been sorely pestered by the trespasses of his neglectful neighbor's chickens, prepared Indian meal mixed with arsenic and scattered it upon his land, having first informed his neighbor of what he was going to do. The neighbor still neglected to confine his fowls and ten of them ate of the meal and died. The man, after paying the expen- ses of carrying the case to the Supreme Court of the State, had to pay the value of the fowls. (14 Conn., i.) There are other cases of like import. The proper remedy is an action for damages. The law for impounding does not usually include fowls, 6. Remedy for Ticious Injuries. The usual legal remedy for damages caused by the vicious acts of domestic animals, is an action on the case, as it is called, for damages. This is the action for all injuries which result from the negligence of the defendant in not properly restraining his animals. The action is sometimes brought for the recovery of a penalty instead of damages, as where a penalty is provided by law for the doing or omitting of some act which has resulted in the injury of the plaintiff. For example there are, in many States, statutes providing that the owners of »68 MANUAL OF THE LAW. bulls, stallions, rams, and boars shall keep them within their inclo- sures at their peril, and that they shall forfeit the sum of $io or $20, or some other sum for every failure to do so. This penalty is usually made recoverable by the owners of any cows, mares, sheep or swine that may be damaged in consequence, in addition to such damage. And here it may be remarked that aside from any statutes upon the subject, the owners of male animals, such as are above referred to, are under obligation to guard against injury resulting from their peculiar masculine propensities. A failure in this duty is such negligence as generally renders them liable for the resulting injury. (26 Ind., 334.) 7. When Ticious Animals may be Killed. Vicious animals may sometimes be lawfully killed, and often under circumstances where their owners could not be sued. Any person may kill a mad dog at any time or place, or a dog that he has good grounds for believing mad, or that he knows has been bitten by a mad dog. (26 Vt., 638; 21 Wend., 406; 27 Ala., 480.) So a savage and vicious dog actually found doing mischief may be killed whether the owner knows of its disposition or not. (13 Johns, 312.) A ' dog caught in the act of killing or worrying sheep may be killed on the spot (52 Bark., 15), but the mere fact that the dog is chasing cattle will not of itself justify the owner of the cattle in killing it. (4 Cow., 351.) It has been held that a dog which comes prowling around one's house at night, howling and annoy- ing the family, may be killed. (23 Wend., 554.) Animals which are regarded as property at common law — such as cattle, horses, sheep and swine— can not generally be killed, however vicious or dangerous they may be, unless it is absolutely necessary to protect human beings, or to protect more valuable property, (31 Conn., 121; Cooley on Torts, 346); and as we have seen no domestic animals can be killed merely because they are tresoassiner. CHAPTER .XX. NUISANCES. 1. Wliat are Nuisancei. 8. Discharge of Water. 2. Kinds of Nuisances. 9. Ponds, Sloughs, Swamps, EtS, 3. Encroaching upon a Highway. 10. Diseased Cattle, Etc. 4. Dangerous Excavations, Etc. 11, Careless Setting of Fires. 5. Old and Unsafe Structures, 12. Legal Remedies for Nuisancei. 6. Overhanging Trees. 13. Abatement of Nuisances. 7. Cesspools, Privy Vaults, and 14. Injunctions. Filthy Sewers. 15. Action for Damages. 1. What are Nuisances. A not uncommon liability, under which some farmers are placed, is that of causing or maintaining a nuisance upon their farms. Though it is difficult to state in con- cise terms what a nuisance is, the popular idea of it, namely, some- thing which annoys and disturbs people, is not far from legally correct. Judge Cooley says it is " anything done or permitted which injures or annoys another in the enjoyment of his legal rights." (Cooley on Torts, 565.) This definition may include some things which are not nuisances, but is as good as can be given. Nuisances often consist of such uses of one's own property as cause inconvenience, discomfiture, or harm to others. 2. Kinds of Nuisances. Nuisances are public or private. The former injure the community at large, and are punishable by indictment, that is by a criminal proceeding brought in the name of the people; the latter are such as result from the violation of private rights and do damage to only one or a fevv^ persons. The nuisances most likely to be met with in rural communities are encroachments upon and obstructions of public highways, danger- ous places near highways, rickety and unsafe structures, overhang- ing trees, discharge of surface waters, percolating filth, cess-pool^, slaughter-houses, diseased stock, dangerous animals, etc., etc, 13 17° X MANUAL OF THE LAW. Who Responsible For. Any person who creates or keeps up a nuisance is liable to any one who is injured or damaged in con- sequence, and he may be subject to indictment if the nuisance causes general injury to the public. The liability generally rests upon the one who has possession and control of the premises upon which the nuisance is situated, though there are a few instances in which a person may be liable for a nuisance which he has created upon the premises of a third party, though he has no right to enter and abate it. (7 M. & W., 456.) As between landlord and ten- ant the tenant is presumptively responsible for any nuisances that may exist upon the leased premises (59 N. Y,, 28), though the facts when shown may remove this presumption and show that the landlord is the proper party to proceed against. (53 Ind., 21.) When the tenant covenants to keep the premises in repair he becomes liable for any nuisances that may exist or arise upon them. (115 Mass., 86.) When a person comes into possession of prem- ises upon which a nuisance exists, either by purchasing or leasing them, he is not liable for the continuance of the nuisance until his attention has been called to the matter and he has been requested to abate it. The injured party cannot bring suit without lirst requesting the owner to abate the nuisance, nor can he recover damages for injuries occasioned by a nuisance which the owner did not know of. (13 Conn., 307; 51 N. Y., 573.) 3. Obstructing or Encroacliing Upon a Higliway, If the farmer puts his road fence outside of the line of the street it is a nuisance. (37 Barb., 301.) So also if he builds a building which extends over the street line. If the building is just upon the line and in its second story there are bay windows or verandas project- ing out into and over the street they are not necessarily nuisances unless they interfere with travel in the street. The same is true of trees overhanging the highway. The overhanging limbs are not nuisances unless they obstruct travelers; though if the limbs were dead and liable to fall and injure persons in the street they would be nuisances. It has been held that a building so erected that its roof overhangs the street, so that rain, snow, and ice descending therefrom may fall upon and injure persons or property lawfully in the highway, is a nuisance. The owner of it is liable for all damages that may be thereby caused. And it makes no difference that the owner is not in possession, or that he has no right to enter and remove the ice and snow that may accumulate. NUISANCES ON THE FARM. !?» The roof itself in that position is a nuisance. (55 N. H., 55.) As stated in the chapter on highways, persons traveling with ordinary care along a highway have the right to absolute safety, not only against accidents from defects in the street, but from obstructions there, and insecure objects placed above or near the street. (loi Mass., 251.) Gates swinging out into the street have been held to be nuisances if left open. No harm might ever come from them in quiet country roads, still it would be better for farmers to have their gates jpen in upon their own land. Leav- ing anything in the road that unnecessarily obstructs public travel is a nuisance. Thus leaving logs or wood piled there, as we often see it in the country, is unquestionably a nuisance. (6 Cow., 189.) To leave a loaded wagon, or an empty one, standing over night in the road in front of one's house, or anywhere else in the road, is a nuisance. To drive in the highway with an unreasonable or outlandish vehicle, or with an unwarrantable load is a nuisance. (3 Salk., 183.) To so drive in the road as to purposely obstruct the passage of another traveler, as by constantly interposing one's wagon as an obstacle, or to " tail " his team, as it is called, keeping just in front of him no matter which way he turns, is a nuisance and an indictable offense. (14 Gray, 69; I Watts, 360.) Things may amount to an obstruction of the highway, and hence be nuisances, though they are not in the road at all, but only near it. Thus an establishment for the manufacture of gun pow- der or nitro-glycerine, or a magazine for storing such compounds, if near enough to a highway to endanger the lives of people there, is a nuisance. (56 Barb., 72.) So is a building which is in such a ruinous condition as to be liable to fall into the street. (6 Salk., 357.) Or the leaving of any object near the road calculated to frighten horses and thus endanger travelers. (107 Mass., 164.) In one case a party had a derrick on his premises the boom of which swung over the highway. It was an ugly looking object and it frightened Mr. Jones's horses so that they ran away and injured him. The court said that such a thing or anything else placed near the highway the natural tendency of which is to frighten passing horses, is a nuisance, and that the person placing it there must pay all the damages. (107 Mass., 261.) In Con- necticut a water-wheel so near the highway as to frighten passing horses was held to be a nuisance. (30 Conn., 129; 27 Id., 631.) In Illinois the reckless blowing of a steam whistle near the road «72 MANUAL OF THE LAW. was held to be a nuisance. (47 111., 298.) In Massachusetts the" reckless discTiarge of a gun near a highway was held to be a nuis- ance, (ii Mass., 137.) Again in Connecticut an unsightly pile of stones was held to be a nuisance (42 Conn., 295); also a steam whistle on a mill near a highway_(38 Conn., 438), and a steam roller left beside the road. (39 Conn., 435.) But in Michigan a steam engine on wheels passing along a highway was said not to be an unreasonable use of the street, and hence not a nuisance. (34 Mich., 212.) A foul smelling hog-pen close by the way side is and of right ought to be a nuisance, (37 Me., 361), or an unclean cow-yard, or anything that emits an offensive smell to the discomfort and detri- ment of travelers. (59 Mo., 321.) Any noxious concern, like a slaughter house, bone boiling establishment, glue factory, tannery, or the like, if so near the highway as to deprive the traveling pub- lic of its right to reasonably pure air is a nuisance, and may be abated. 4. Dangerous Excavations, Etc. If a farmer or other land- owner makes an excavation so near the highway that persons passing along may by slipping fall into it, he will be liable for the harm done them if without their fault they do fall in. (12 111. 20; 51 N. Y., 224.) And the same is true if the excavation is near the path leading to his house, or upon any other part of his premises vf here he has extended an invitation either directly or by implication for people to come. It is his duty in all such cases to provide proper safeguards against danger and accident, and a fail- ure in this duty renders him liable for the consequences. Not only should he keep excavations adjoining a highway or near the path- way to his house surrounded with proper safeguards, but any other dangerous object or obstacle there should be properly and ade- quately guarded against. By providing an approach to one's house or place of business, he gives implied permission and invitation to all persons, having occasion to go over it, to do so, and he places himself under obligations to keep the pathway in a safe condition. And it is said that if a person is injured because of the unsafe con- dition of such a pathway the owner can not shield himself from liability on the ground that the injured person was a trespasser, or had no business there (11 Moore, 354), his liability being the same as that of a shop-keeper who invites the public at large to enter his shop and then leaves trap doors open or other places NUISANCES ON THE FARM. 173 insecure and unsafe. Wells by the roadside or hear the approach, or cisterns near the door of one's house should therefore be kept properly curbed or otherwise guarded. But while the farmer must thus use care to keep his premises in a safe condition for the visits of persons who are expressly or impliedly invited upon them (68 N. Y., 283), including also his servants and employes (56 N. Y., 124), it must not be understood that he is under any such obligation to person who comes without any invitation, or to trespassers, or wrongdoers* (30 Md., 179; 20 Pa. St., 3S7.) If one goes without permission upon another's premises he cannot recover damages if he there falls into an unguarded pit, or runs, without carelessness on his part, into any other kind of danger. It is only when he goes by invitation, express or implied, that he is entitled to care and watchfulness from the owner. And he can not be regarded as invited simply because his entrance is not opposed. Thus if a farmer leaves his field uninclosed and people cross it without objection he is not liable to one who falls into an unguarded cistern there. (25 Mich., I.) And what is true in this respect regarding persons is true also of their beasts. Thus if one's cattle trespass upon another's land and there fall into a pit or a well and are injured, there can be no recovery of damages. Or is one's breechy cow breaks into another's sugar bush and there drinks so much maple syrup that, she dies, he can not recover damages because the syrup was negli- gently left there. ( 1 Cow., 78.) 5. Old and Unsafe Structures. A rickety old buildmg, or an unsafe structure of any kind may be, and often is, a legal nuis- ance. If it is near a public highway and liable to fall and injure travelers, it is a public nuisance and may be abated by public authority. If it stands near the premises of an adjoining neigh- bor and is blown down by a high wind, and injury is done to the neighbor, like crushing his farm implements or killing his stock, the owner is clearly liable. One can not erect or maintain so weak and unsafe a structure that it will fall in ordinary times from its mere insufficiency of strength, and so injure the property of his neighbor, without being liable for the injury so done. And if his neighbor claims damages he can not excuse himself by saying that the neighbor had no business to leave his property where the building could fall on it. (28 How. Pr., 511.) Of course a man is not required to keep his structures so strong that they will with- '74 MANDAL OF THE LAW. stand any and every gale. He must use a high degree of care to make them reasonably safe, and if they are then blown down, or a chimney is blown off, by any extraordinary force, like the force of a whirlwind or a tornado, and harm is done, he will not be liable. The liability in all these cases depends on some negligence or want of proper care to make and keep the structures safe. If in spite of such care they fall, and harm is done, no one is liable. And it is said that the owner is not responsible if he has employed competent contractors or mechanics to build or examine his struc- tures, and is guilty of no fault on his own part. (3 H. & C, 511; 46 Cal., 409.) 6. Overhanging Trees. If the farmer has fruit trees or other trees, the branches of which extend over his line and into his neighbor's premises, such branches so far as they extend beyond the line are nuisances. They may be treated as such by the neigh- bor, who may sue for damages, or he may abate the nuisance him- self by cutting the overhanging branches off. He cannot destroy the tree, though it derives sustenance from his soil, for that belongs wholly to him on whose land it grows, nor can he cut the branches back further than to the line. He can dig down and cut off the roots which extend into his soil and the owner of the tree would probably have no claim upon him if the tree died in consequence; but if he deliberately killed or poisoned the tree he would prob- ably be guilty of a criminal offense. The fruit borne by overhang- ing branches belongs to the owner of the tree, and not to the owner of the soil over which it hangs (11 Conn., 177; 25 N. Y., 126), and the owner of the tree has the right to reach over and pick it, or if it falls upon the ground he has an implied license to enter and get it, doing no unavoidable harm. (113 Mass., 376; 46 Barb., 337; 4SN. Y., 201.) If a tree stands directly on the line between two farms it is then not a nuisance. It belongs equally to each owner. Both own it audits fruit in common, ar.J neither can destroy it, or injure it, without being responsible to the other. (34 Barb., 547; 25 N. v., 123.) This is the general rule, but there are some conflicting cases. Bay windows and other projections extending over a neigh- bor's land are nuisances and may be abated. (51 Cal., 142.) 7. Cesspools, Privy Vaults, and Filthy Sewers. If the farmer has cesspools, piivy vaults, sewers, or other places where filth la collected upon his premises, it is his duty to keep such filth NUISANCES ON THE FARM. 175 from becoming a nuisance to his neighbors. (44 Ga., 324.) If it escapes from such places and percolates through the soil and so reaches his neighbor's well or cellar, it is a nuisance. (1 Salk., 360; 99 Mass., 5S2; 36 Wis., 50.) And it is held that in this class of cases the law requires such precaution as will be certain of excluding the filth from the neighbor's land. The farmer can not deposit his filth and then claim immunity because the forces of nature, and not he, carried it to the neighbor's well. Only una- voidable accident will excuse in such a case. (99 Mass., 5S2.) 8. Discharge of Water. In the chapter on drainage rights it was stated that while it is not unlawful for the owner of one tract of land to allow the surface waters which collect upon it, the rain, melted snow, etc., to flow by percolation and other natural causes upon the land of a lower proprietor, still if he collects such waters in drains and discharges them at one place upon another's lands, it is a nuisance, and an actionable wrong, (22 Ohio St., 247.) He may divert all the surface waters and prevent their reaching another's land, and for this he will not be liable though serious damage is done, for the surface waters are his (47 N. Y., 73); but if he turns them upon his neighbor in any other, way than that in which they naturally go, he commits a nuisance, and is liable for the damage done. If the waters from the roof of one's house are discharged in such a manner that they fall upon another's land, or so near the boundary line that they must escape upon adjacent premises, it is a nuisance. (33 Mich., 232.) Or if waters are gathered into cisterns or reservoirs which leak, and they so escape upon other people's premises, it is, a nuisance and the owner is responsible for the harm that may ensue. (108 Mass., 261.) When we reflect that water stealthily finding a hidden way upon a tract of lower land may render such land cold and unproductive, or the build- ings that may be there damp and unhealthf ul, we see that these damages may be far from insignificant, and that it behooves the farmer to take care that he does not become responsible for them. 9. Ponds, Sloughs, Swamps, Etc. Swamps and marshes existing by nature can not be regarded as nuisances for which the owner of the land in which they exist is in any way responsible. Unhealthful and damaging as their exhalations may be there still seems to be no power or authority to compel their owners to drain them or otherwise remove their baneful influences. They are a '76 MANUAL OF THE LAW. part of nature for which man is not accountable. ( Cooley on Tax- ation, 510.) Public authorities can assume the duty of removing them, and this is done under the operation of the various county, township, and local drain laws, by making special levies for the purpose. (8 Ohio, N. S., 333.) But as soon as man does any- thing to swamps, bogs, etc., which increases their bad effects, or changes their deleterious influences in any manner so as to make them offensive in a new or different way from what they were by nature, then he commits a nuisance and it is his duty to abate it, and if he does not he will be liable for all the consequences that can be traced to his acts. (43 Verm., 525; 47 Pa. St., 155.) Thus if a man has a low, boggy place upon his premises which he thinks by dyking up and draining into he can change into a fine artificial lake, and the result of his operations is only to create a much worse frog pond than the original, the increased miasms of which set the surrounding community into fits of fever and ague, it is a nuisance, and the owner will be liable if he continues it. Likewise if a man makes a pond anywhere and for any pur- pose upon his premises, or a brick-maker by removing clay leaves an excavation which collects water, and such places become foul and spread a poisonous effluvia over the neighborhood, then they are nuisances and must be removed or remedied, or their owner will become liable. In all these cases if the evil results from some lawful act, but is due to the negligent and slovenly manner in which the act is done, then the party is liable for all the injury directly traceable to his negligence. If the act is lawful and is carefully performed, but the evil is not apprehended or discovered until afterward, then the party is not liable for what he has done, but only for continuing it after he found or was notified that it was a nuisance and was injuring others. But if the act was unlaw- ful, like the damming of a stream and setting the waters back on to the lands of the owner above, then he is liable for all conse- quences, whether the act was negligently done or not (See Cooley on Torts.) 10. Diseased Cattle, Etc. The keeping of domestic ani- mals which are affected with any contagious or infectious disease in such a way as to expose other animals to the contagion is a nuisance. It is not necessarily a nuisance to keep such animals upon one's premises or in one's stables. The keeping of them is not of itself unlawful (a Barb., 104), in fact one might turn his NUISANCES ON THE FARM. '77 stables into a hospital for sick horses if he saw fit. But the nuis- ance and the wrong consists in negligently keeping diseased ani- mals there, and in not exercising such care over them as will pre- vent injury to other persons. For instance, if one should allow such animals, knowing them to be diseased, to have the freedom of his premises and to go at large in the public highway, or should water them at a public trough used for watering the sound ani- mals of other pei'sons, he would be clearly liable for the conse- quences. (2 Rob., 326.) The farmer who knows that his cattle, or sheep, or horses, have an infectious and contagious disease must exercise all the care over them to prevent the disease from being communicated to the animals of other persons, that a prudent man would exercise under the circumstances, or that a rightful regard for the interest oi others would require. He must keep them securely by themselves, and so far away from the partition between his land and that of his neighbor that the latter's stock can not become infected. If he fails of this he will be guilty of maintain- ing a nuisance, and he will be liable. So likewise if the farmer sells diseased animals without informing the purchaser of their condition, he will be responsible not only for the damage caused by the disease to the animals sold, but for the damage caused to such other animals as the disease may be by them communicated to. (13 Wend., 518.) And when animals which are infected are allowed to trespass upon other person's land and they there com- municate the disease to the animals belonging to the owner of such land, it is held that the owner of such animals is liable for the tres- pass and for the damage caused by the infection, and that it is not necessary to prove that the owner knew his animals were diseased. (16 Conn., 207.) There are statutes in many of the States making it a misde- meanor to drive diseased animals, particularly glandered horses and sheep having the foot-rot, along the public highways, and also preventing railroad companies from transporting them in their cars. 11. Careless Setting of Fires. Fire is such a dangerous element, and its consequences when beyond control are often so disastrous, that common prudence dictates the use of great care in the use of it. To make proper use of it is lawful ; but to use it without observing the degree of care corresponding to 'its danger is an actionable wrong, (16 Me., 326.) The act of setting a fire l?^ MANUAL OP THE LAW. under proper circumstances not being in itself unlawful, the lia- bility for injury depends upon some negligence or want of proper care. The care required, it is said, is "that degree of carefulness which a discreet, prudent, and careful man would exercise in the possession of his own premises." (^8 Wis., 255.) If therefore the farmer, on a calm day, sets fire to his log heaps or brush piles and while carefully tending them a sudden rise in the wind or an unforeseen blast takes the sparks into his neighbor's stubble and injury results he will not be liable. But he must not suppose that having used proper care in starting his fires, in selecting a suitable time, place, and method, that his responsibility then ceases. He must watch them until they are out, and must use proper precau- tions to prevent their getting beyond his control and spreading to adjacent land. If, because of any negligence on his part, they do spread, it will make no difference whether they spread by running along the ground or by sparks being carried through the air by the wind, he will be liable for the damage done in either case. ( 107 Mass., 494.) The liability for injury depending upon neg- ligence on the part of the person setting the 'fire, it is for the per- son injured to prove such negligence; he must make it clear that the other was to blame. (44 Barb., 434.) Not only will the farmer be responsible for the results of his own negligence in this matter of fires, but also for the negligence of his servants or hired men in the ordinary scope of their employ- ment. It is not necessary to the master's liability that he should direct his men to set the fires, though of course if he does so, and they do it carelessly and injury results, he will be liable. But if the men set the fire without the employer's direction or permis- sion — but still do it within the scope of the master's business — because they think it the proper thing to do, then the master will be liable. When, however, the men embark on an enterprise of their own and carelessly start a fire, or if they set the fire out of sheer malice or wantonness, then the owner will not be liable; nor well he be liable if they deliberately disobey him. (10 111., 425; 509-) There may sometimes be cases in which a man will not be liable for fires which result from his own or his servants' carelessness; as for instance, where he carelessly but unintentionally sets fire to his own buildings and the fire spreads from them to his neighbor's premises and does damage. The New York courts hold that m KUISANCES ON THE FAEM. 179 such cases the damage doije to the neighbor will be too remote to be charged to the first man's careless act. (37 Barb., 15; 35 N. Y., 210.) But the courts of other States and the Supreme Court of the United States have asserted another and probably better doctrine, namely, that all the damage directly traceable to the care- lessness of the man setting the fire is chargeable to him, no matter whether he intentionally set the fire or not. (93 U. S.) If, fire is set by a trespasser, no matter whether he , does it carefully or not, he is liable for all the damage it does. He had no business to set the fire at all and no degree of care on his part will excuse him. (21 Pick., 37S; 43 Cal., 437.) Therefore if a careless hunter fires the farmer's woods he will probably be liable for all the damage done, though he does his best to extinguish the flames. In some of the States the setting of fires under certain circum- stances is prohibited by statute. Those States which contain large tracts of prairie land, where fires in dry times often result most disastrously, have generally prohibited entirely the setting of fires in such places. Where such statutes exist one who unlawfully sets a fire so prohibited must take all the consequences. (3 111., 431; 12 Mo., 120.) 12. Legal Remedies for Nuisances. There are three ways in which a man whose property is being injured, or rights jeop- ardized, or whose life is made miserable by the existence of some nuisance, may proceed to get satisfaction. He may abate the nuis- ance himself; that is he may go personally and with strong hand remove the nuisance, or prevent its doing further harm. He may apply to a court of equity for an injunction to prevent the use or continuance of the nuisance. And he may bring an action' at law for the recovery of damages resulting from the nuisance, 13. Abatement of Nuisances. It is only rarely that a man is permitted to take the law into his own hands and to himself rigiu the wrongs that are done him. But when a nuisance is elected or maintained which does him special injury, he is allowed to go and peaceably remove it. When the nuisance is a public one, doing injury to the public at large, then the proper public authorities have this right; though if a public nuisance specially injures an indi- vidual it becomes as to him a private nuisance and he may abate it. For example, if an obstruction is placed across a private way, it is a private nuisance, and the owner of the way may remove it i8o MANUAL OF THE LAW, at once, whether he wishes to use the way or not. If an obstruc- tion is placed across a public way or street, it is a public nuisance, aYid it is for the public authorities to remove it. But if an indi- vidual wishing to use the public way is thereby specially incom- moded, then he may remove it. (56 Me., 197.) Unless, however he has occasion to make use of the highway, he has no right to touch it; he must leave it to the public authorities. (12 Gray, 98.) . There are several restrictions placed upon this right to abate a nuisance. In the first place one must not commit a breach of the peace in order to accomplish it. If the abatement is resisted the proper method is to go to the courts for a remedy. (82 111., 162.) In the next place before one proceeds to such an extreme measure as the abatement of a nuisance, he should give notice to the party responsible for it, and request him to remove it, and should then give him a reasonable time in which to do so. ( 15 Wend., 397.) This notice and request, however, is not always essential to justify one in abating a nuisance. If the nuisance is of serious character and is the intentional and willful act or design of the party, or if the safety of life and property requires an immediate remedy, then no notice and request is required. (34 Conn., 529.) One who abates a nuisance must do it with as little injury to property as pos- sible. If he causes any unnecessary loss he will be liable for it. (27 Ind., 394.) Lastly one who thus takes the law into his own hands and abates a nuisance of his own motion, must see to it that he keeps strictly within legal bounds. It is for him to show that the thing abated is a nuisance, and if he can not do this he will be liable as a trespasser from the beginning. ( 13 Vt., 394; 12 Mass., 311; 25 Mo., 209.) From what has been said it will be seen that this remedy by private abatement is a dangerous one. The man who makes use of it is handling sharp edged tools, which may get him into trouble. Unless he is sure that the thing complained of is a nuisance, and unless the case is one which can not admit of delay, he better not attempt to remove it himself, but proceed by the slower and safer methods provided by law. In one case a man had some horses sick with a contagious disease which he kept on his own land. His neighbors, claiming that the horses were a nuisance in the com- munity, spreading a bad disorder among other stock, entered with- out notice and abated the nuisance by killing the horses. The NUISANCES ON THE FARM. i8i court held that the act was not justifiable and that the owner of the horses might recover their value. (45 Mo., 121.) 14. Injunctions. Where a legal right is violated by an act that amounts to a nuisance which is of a continuous or perma- nent nature, an injunction can generally be had by applying to a court of equity. This is a writ or mandate from the court prohibiting the defendant from domg some act which is deemed unjust to the complainant. A pi-eliminary injunction is usually first granted restraining the defendant from continuing the act complained of until the proceeding for determining the rights of the parties in the premises is terminated. The final or perpetual injunction is then granted if it appears to the court proper that it should be. Injunctions are used for preventing or restraining many things besides the continuance of nuisances. Common among these are the following: To stay proceedings at law; to prevent the transfer of stocks, notes, etc., and of personal and real property; to restrain the infringement of a patent, or a copyright, or the pirating of a trademark; to prevent the removal of prop- erty out of the jurisdiction of the court; to restrain the committing of waste, etc., etc. Injunctions will only be granted in cases where there is no ade- quate and complete remedy at law; nor will they be gi'anted while the rights between the parties are undetermined, unless it appears that serious and irreparable injury will be otherwise done. The injunction is only to prevent or to stop the nuisance or other wrong. It never gives damages for the injury done. 15. Action for Damages. Where money damages are sought by way of compensation for the injury caused by a nuisance, an action on the case, as it is called, may be brought in the name of the person or persons injuriously affected, against the party erecting or maintaining the nuisance. If the nuisance is one which prevents or injures the comfortable enjoyment of property, the suit must generally be brought by the owner of the property, though if the property is rented, and the nuisance is an injury merely to the present enjoyment of property, like that caused by smoke, vapors, smells, noises, etc., the suit may be brought by the tenant of the property without proving any title in himself save that of mere present possession, (i East., 244.) The rule seems to be that unless the injury is a permanent one the suit should be brought by MANUAL OP THE LAW. the tenant. (4 Met., 477.) But we cannot go into technicalities liere. In bringing this action facts should be set forth sufficient to show that the act or thing complained of is in fact and in law a nuisance. The manner in which the nuisance was created need not be set forth, but the nuisance as it exists, and the injury pro- duced thereby, and the liability of the defendant should be specific- ally set up, otherwise the declaration will be insufficient. (23 Barb., 444.) In all actions for nuisances which consist of the neg- ligent doing of some lawful act, or the negligent use of some thing which is not of itself a nuisance, the negligence which is really the gist of the action must be alleged; and where the nuis- ance consists of the keeping of a dangerous domestic animal, it is usually necessary to set forth m the declaration and prove at the trial that the ovVner knew of the animal's propensities. (42 Vt., 343-) The amount of money awarded in an action for a nuisance must be limited by ihe.' actual damages sustained. (10 Ohio, 161.) In some instances these will be easy to admeasure, as for instance, if the injury complained of is the loss of a tenant the damages will be the rental value of the premises during the time they have been unoccupied because of the nuisance. (53 N. Y., 152.) But in the great majority of cases the damages will be difficult to com- pute. Nuisances so generally affect the senses merely, and are so intangible and uncertain, that it is hard to put a money value on the injury they occasion. For instance, what money shall be paid to a man for having a disagreeable smell pervading his premises, or a continual racket kept up just over his garden fence, or in fact anything done which interferes with the pleasant enjoyment of his property ? No precise rule can be laid down for computing such damages. They may be so great as to entirely destroy the prop- erty or they may be only so fanciful and frivolous as not to be worth considering. All that can be done in these cases is to leave the matter to the sound discretion of a jury. It is for them to say in view of all the facts of the case what in their best judg- ment the plaintiff ought to receive for the annoyance and discom- fort he has been put to, and what the defendant ought to pay for the injury he has caused. It is to be obsei'ved that the action for damages does not prevent the nuisance from being continued. That is done by an injunc- tion. A proceeding for an injunction and an action for damages KUISANCEtf OX THE FAltM. 1 83 may both be maintained against the same party on account of the same nuisance, But after one suit has been finislicd and damages have been awarded, if the nuisance is not abated anollier may be commenced. In fact a nuisance continued is a fvi-sli nuisance every day that it is allowed to remain unabated, and new suits for the damage caused by its continuance may be commenced from day to day. (29 Barb., 291.) CHAPTER XXL OF HTRTNG HELP. RIGHTS AND DUTIES 0I< THE EMPLOYER AND THE EMPLOYE. 1. Importance of the Subject. 5. Articles of ApprenticesMp. 2. Relation of Master and Servant. 6. Contract of Hiring. 3. Hiring Infants. 7. Implied contracts. 4. Apprentices. 1. Importance of the Subject. One of the most important and oftentimes perplexing tasks of the farmer is the procuring and employment of necessary farm help. Misunderstandings arise, and much litigation has ensued because of imperfect knowledge as to the law governing the subject, — the relation of master and servant as it is called. In the present chapter, therefore, we shall endeavor to set forth, as clearly as possible, the legal rights both of the laborer and hirer, as well as the duties and liabilities of each, though the subject being so comprehensive cannot, of course, be exhaustively treated here. 2. Relation of Master and Servant. This relation or the relation existing between the one who employs and the one who is employed arises now only by contract of the parties. Indeed the modern legal definition of an employe or servant is one who, by reason of some contract, express or implied, becomes subject to the authority and control of another in some trade or occupation. In other times and other countries there were and are other meth- ods by which one person can become entitled to the services of another; but in this country' there is now no way in which one party can make another work for him except by the free will and consent of the person doing the work. As the relation rests upon contract it follows that the capacity of parties to make contracts is an important consideration in this matter. OF HIKING HELP. 185 3. Hiring Infants. A great many farm hands are persons under the age of twenty-one years. Such persons are, in law, infants or minors, and they cannot, except for necessaries, make a contract which can be enforced against them. Upon grounds of public policy persons of immature age, lacking often that experi- ence in the sharp conflicts of business necessary to prevent theit being imposed upon, are protected from the harm that might come to them were they required to perform all the contracts that they may be induced to make. Consequently all contracts made by infants or minors, especially if not beneficial to them, are either void as to them or may be rescinded or avoided by them any time before or within a reasonable time after they become of age (13 Mass., 237. ) Therefore if a minor hires out to work for a definite period of time, as one year, and for a definite rate of wages, as $15 per month, he is not obliged to carry out his agreement if he does not want to. If he does do it his employer is bound by the contract and will have to pay him accordingly. Or if he works three months or six months and then leaves without just cause, he will be entitled to his wages for the time he has worked, notwith- standing he has broken his contract. And he can recover either the amount of his wages at the rate he hired, or he can renounce the contract and recover the actual value of the services that he has rendered (2 Pick., 332); and his employer cannot deduct from such amount any damages that he may have suffered by reason of the breach of contract. (11 Vt., 273.) This is contrary to the rule where the employe is of age, for in such case if he leaves without cause before his time is up he cannot recover anything for the services rendered, or at most can only recover the actual value of his services over and above the damage caused to his employer by his breach of contract, as we shall see more fully further on. There is another consideration, more important than the fore- going, to be borne m mind with respect to hiring minors. The father being charged with the duty of supporting and educating his children is entitled to their services during the period of their minority. (23 Me., 569.) He is entitled to such reasonable and proper labor as they can perform at home or elsewhere, and if they are hired out to other persons he is entitled to either their wages or the actual value of the services rendered. When, there- fore, a person under the age of twenty-one is engaged to work upon the farm, the farmer should not only remember that such 14 MANUAL OF THE LAW. person is not bound, except in honor, to fulfill his engagement, but that the wages he earns belong to his father, and that payment to him may not cut off the father's right to recover payment also. Too great dependence should not be placed upon the minor's promise, for if after agreeing to work during thft season he leaves just at harvest time the farmer cannot keep back any of his wages; and inquiry should always be made as to whom the wages are to be paid. If the father claims the wages, they should be paid directly to him or to the son only upon direction to that effect by the father. It is to be observed, however, that where the father seeks to recover for the services of his son rendered under a contract which the son has made, he is so far bound by the son's contract that he cannot recover under it unless he shows a performance of it by the son or a legal excuse for non-performance (24 Vt., 513.) Nor can the son recover under such a contract, if he had no right to make it, but the father on discovering the fact may put an end to the contract and recover the actual value of the child's services, or he may ratify it, in which case he must see to it that the contract is performed or no recovery can be had. If the minor has been emancipated, or as we commonly say, if he has "had his time given him," then his father loses the right to the son's wages, the son becomes entitled to his earnings, can sue for them if necessary, and payment to the son entirely discharges the debt. (6 Gushing, 458.) This emancipation may be brought about by a written instrument, or by a verbal agreement, or by the conduct of the parties. If the father simply says to the child " you may go and hire out and have the wages you .earn," that is sufficient authority to enable the child to make a contract and receive his pay therefor (39 Conn., 270); and such authority once given cannot be withdrawn so as to injure the person who has hired the child. (74 Pa. St., 470.) But if the child falsely rep- resents himself to be emancipated, as where he tells his employer that his father has given him the right to his wages, that will not affect the father's rights. The fraud of the son does not estop the father from collecting the son's earnings. (32 Vt., 780.) If the father casts the child off and leaves him to shift for him- self, that works his emancipation and gives him the right to his earnings. The father, by neglecting to discharge the natural duties of a parent, loses the right to his child's earnings, and the OF HIKING HELP. 1S7 courts are liberal in such cases in granting to such children the right to their own earnings, thus encouraging them to earn an honest living for themselves. (Schouler on Domestic Relations, p. 370-) Or if the parent becomes unable, by reason of poverty, to provide for the child, he then loses the right to the child's earn- ings (15 N. H., 490) ; also if the parent absconds to parts unknown it has the same effect. (2 Met, 92.) As has been stated, if the parent authorizes the child to receive his wages, payment to the child is then legal, and such authority may be implied from cir- cumstances. (10 Barb., 300.) American courts are inclined to favor such arrangements between father and son, as they accord with the spirit of our free institutions. A New York Court, fol- lowing a Massachusetts decision, held that if a son goes out and contracts his services on his own account with his father's knowl- edge and without objection from him, a payment to the son cuts off the father's claim. (10 Barb., 300; 2 Pick., 202.) There are statutes in some of the States providing that the wages may be paid to the minor unless the father, within a certain time after the hiring gives notice to the employer that he claims the son's wages. The N. Y. statute requires that such notice be given within thirty days, — otherwise the father loses his right. The reader can examine for himself the provisions of the statutes of his particular State on this point. If there is no statute then what is above laid down will hold true. In any event it will be safest for all parents to give prompt notice to employers of claims they may have to their minor children's wages, and it will be safest for all employers to ascertain from the parents of such minors as they employ how and to whom the wages are to be paid. That will avoid all difficulty. The marriage of a minor with the consent of the parent works his emancipation, and entitles him to his wages, because, as it is said, he needs his earnings to support his family. But if he mar- ries without the parental consent no such legal result follows^ though it would seem that the alleged reason is equally applicable, for his family is equally in need of support. A court in Maine, however, reasoned otherwise and gave the erring young Benedict's wages to his father, leaving the poor wife without a penny. ( 24 Me., 531.) If a minor's father is dead the mother is entitled to his services or wages during the time that she supports him. It is not neces» «88 MANUAL OF THE LAW. sary that she should afford him his entire support. If she afford him a home to which he may go when he pleases and discharges her natural parental duties toward him to the best of her ability^ that will entitle her to his earnings. (37 Conn., 435.) A step-father, not being bound to support his wife's children by a former husband, is not entitled to their custody, nor to their services, nor wages. (14 Pick., 510.) The rules above laid down apply to adopted children the same as to natural children, provided that they have been adopted in conformity to the provisions of the law. (25 Ga., 612.) The mother of an illegitimate child is entitled to its earnings if she supports it, but the putative father is not. (15 Barb., 247.) It should be remarked before leaving this subject that if a child runs away from his parents and is taken into service the father can not afterwards recover of the employer for such service without allowing a reasonable and proper deduction for the support of the child during the time he was so employed. (20 N. H., 388.) i. Apprentices. An apprentice is a person bound to another for a certain time to learn a certain trade or business. The rela- tion is not as common upon farms and in agricultural communities as in the mechanical trades, but it is equally applicable to any legitimate employment, and is a matter of considerable import- ance. In England, after the time of Queen Elizabeth, it was nec- essary for every artisan to have served an apprenticeship of seven years, otherwise he was not allowed to follow his trade. The law there requiring this, though for the professed purpose of prevent- ing injury to the public from the employment of quacks and unskilled artisans, was really enacted in the interests of certain guilds and trades unions which had existed there for centuries. In America there has never been any restriction of this sort placed on labor, everybody being left free to follow any trade or occupation he pleases, whether he has served an apprenticeship in it or not Experience has shown that it is best to open wide the door for the free exercise of inventive genius, to allow every one to do as best he can, leaving it for the public to decide by its bestowal of pat- ronage whether or not the individual is worthy. The system of apprenticeship is therefore much less employed here than it for- merly was in England. But the right of parents and guardians to •'bind out" their minor children is fully recognized here, and in most, if not all the States, there are statutes regulating the matter. ON HIRING HELP. 189 In determining any question relating to this matter, reference should always be had to the statutes of the State in which the question arises, and the provisions of such statutes should be strictly followed, especially in drawing the articles of apprenticeship, other- wise the contract may be void or voidable by the apprentice at any time. The minor or person being apprenticed must consent to the arrangement, and the consent must appear in the articles of appren- ticeship; though under the statutes of many States minors who are paupers may be apprenticed without their assent by the proper authorities. (32 Me., 299.) Any person, who is capable of making a binding contract and of carrying on a trade or business, can take an apprentice; and any person who if a minor is willing to unite with his parent or guardian in entering into articles of apprenticeship, or if of age and otherwise competent is willing to enter into such articles on his own account, can become an apprentice. At common law an infant can bind himself as an apprentice, it being regarded as for his benefit, but this cannot now be done because of the liability of the abuse of such power if it were granted. (8 Johns, 328.) When a father or guardian binds out a minor, such father or guardian becomes responsible for the performance of the contract by such minor; but he will be relieved if the master is cruel and drives the apprentice away, or if he changes the trade which the minor was apprenticed to learn. (4 Mass., 480.) The contract of apprenticeship must be in writing, and it con- tinues usually until the apprentice, if a boy, becomes of age, or if a girl, until she is eighteen. It is the duty of the master to instruct the apprentice in all the knowledge of the art, craft, or business which he has undertaken to teach him ; to watch over the conduct and morals of the appren- tice, giving him good advice and setting him good example, to treat the apprentice kindly and not put him to menial or other employments unconnected with the trade he is to learn. It is said he can moderately correct the apprentice for negligence or misbe- havior (i Ashm, Pa., 267), but here he had better let his modera- tion be known to all men, and especially to the apprentice. He must perform all the covenants entered into by him in the articles of apprenticeship, and he can not dismiss the apprentice except by consent of all parties interested (12 Pick., no), or else by the sanction of a proper court. (8 Conn., 14.) Nor can he remove J9<^ MANUAL OP THE LAW. the apprentice out of the State in which he was apprenticed unless the removal was provided for in the articles, or can be implied from the nature of the employment. (13 Met., 80.) It is the duty of the apprentice to serve the master and obf.y all his lawful and proper commands, to protect and promote the master's interests, to endeavor to well learn his trade or business, to keep all the covenants entered into by him in the articles of apprenticeship, and not to leave the master's service during the term of the apprenticeship. The master is entitled to all the earnings of the apprentice, and to recover the same from others for whom the apprentice works during the term, just as a father can recover for his son's services, and payment to the apprentice will not bar the master's right of action, unless it can be shown that the master has abandoned his rights. (107 Mass., 419.) Of course if the master consents to the apprentice's working for others and receiving his pay, that alters this rule. Where the master consented that the apprentice should enlist, such consent entitled the apprentice to his bounty and wages (39 Vt, 3S3), and a similar ruling was made where the master consented to the apprentice's going on a sea voyage. (12 Pick., 115.) The apprentice is also entitled to pay for extraor- dinary services, when promised by the master, or even without such promise under certain circumstances, (i Whart. Pa., 113.) Upon the death of the master, the apprenticeship, being a per- sonal trust, is dissolved, and the master's estate is liable for a return of a proportionate amount of the money paid for the apprentice's instruction, if the fee covered the whole term. And the same is true where the apprenticeship is terminated for any cause for which the master is at fault. (18 M. R., 759.) But now-a-days it is not common for the master to receive a fee for the appren- tice's instruction, the services of the apprentice being usually deemed sufficient. The following is a common form of articles of apprenticeship, but, as has been observed, before making use of this or any form the Statutes of the State where it is to be used should be examined "■o ■uni that it conforms to them. o. Articles of Apprenticeship:— This Agreement Witnesseth : That A B. of , , does by these presents bind out his (or, if the father is not living, her^ son C. B,, and that the said C. B. does hereby bind himself out as an apprentice to E. F. of , , to learn the ait (business, or trade) of (state what) ON HIRING HELP. 191 That the said C. B. is at the date hereof aged years. That said C. B. shall dwell with and serve said E. F. as such apprentice from the date hereof till day of . That during said term said apprentice shall faithfully serve his said master, keep his secrets, and at all times readily obey his lawful commands. He shall do no damage to his master, nor wilfully suffer any to be done by others. He shall at all times diligently promote his master's interests, shall not absent himself from the service of his master, but in all things shall demean and conduct himself as a good and faithful apprentice ought. That the said E. F., in consideration thereof, does hereby covenant, promise, and agree to instruct and teach said apprentice, or cause him to be Instructed and taught in all the ways of the art (business, or trade, etc.,) aforesaid to the best of his ability and means ; to instruct and teach said apprentice, or cause him to be instructed and taught to read, write, and cipher, to find and provide said appren- tice good and sufiicient food, clothing, and lodging, and other necessaries during said term, and at the expiration thereof to give him dollars (clothes, etc., as the parties may agree). In witness whereof the parties hereto have here set their hands and seals this day of , A. D. . {E}} ■ & & 6. Contracts of Hiring. The relation of master and servant always arises out of contract, but it is not always necessary that the contract be in express terms, nor is it necessary that it be in writing unless the hiring is for more than one year. We see therefore that contracts of hiring may be implied or they may be express, and we also see that some of them must be in writing. 7. Implied Contracts. Where services have been rendered by one party for another, and there has been no agreement as to the price to be paid for them, the law will imply a promise on the part of the employer to pay the current rate of wages for that class of service. If the services are of such a kind that no current rate of wages exists, then it will be implied that the contract was for the actual value of the services, and the party doing the work will be entitled to what it was reasonably worth in view of all the cir- cumstances of the case. (Wright, Ohio, 242.) Where a person is engaged to work, and no term of service is agreed upon, no time at which the service is to terminate is agreed 192 MANUAL OP THE LAW. to, then either party is at liberty to put an end to the relation at any time, and the master will be bound to pay what the services amount to at the rate agreed upon, or if no rate was agreed upon he must pay what the services were reasonably worth during the time they were rendered, without reference to any damage he may have been put to by reason of the servants' leaving. (5 Bing., 37.) Where services are rendered without there being any under- standing at all concerning them, but under such circumstances as lead the laborer to expect pay for them, it is for a jury to say — in case of dispute — whether the person for whom the services were rendered expected, or ought to have expected to pay for them, and if so the laborer is entitled to the actual value of the services. (41 Mo., 441 ; 17 Wall., 123.) If a person for whom services are rendered has reason to believe that the person rendering the ser- vices expects pay therefor, and he allows him to continue laboring under that expectation, the law will imply a promise to pay what the services are reasonably worth. One can not get out of paying for such labor by saying that he never agreed to pay for it. He should have told the laborer that he did not expect or intend to pay. But it must not be understood from this that a person can recover pay for services that he obtrudes upon another. There must be either a request for the services, or a promise to pay for them, or something from which the law will imply either a request or a promise. For example : If without being requested, I assist my neighbor in saving his goods from a fire, I cannot afterwards charge him for the service (20 Johns., 28); nor if I nail boards on his fence to prevent his cattle from escaping, or having the privi- lege of getting water from his well I put a new sweep and bucket in it, can I recover pay therefor, no matter how necessary the work. (12 Mass., 65.) Nor can I recover pay for work for which I had no intention of charging nor expectation of receiving pay for, not even though I hoped that the man for whom I labored would leave me something in his will, or give me some other ben- efit. Though if there was an agreement to leave me a legacy and that agreement was not fulfilled, the law will imply a promise to pay, and I can recover the actual value of my service out of the man's estate. ( 13 Johns., 379; 14 La., 5S1.) There is one exception to the rule that no pay can be recovered for services that are not reguested, and that is in the case of lost on ttlBING HELP. 193 goods. The finder of lost property, who cares for and keeps the same until the owner reclaims it, is entitled to reasonable pay for the labor he has expended in so doing. (106 Mass., 286.) There are statutes upon this subject in most of the States. If one compels another to work for him, or induces him to do so by fraud, he becomes liable to pay what the services are reason- ably worth. (3 Yeates, 250.) Where services are rendered for near relatives, as where one works for his father, or brother, or grandfather, the law will not imply a promise to pay for them ; so that if there is no express promise or agreement, no recovery can be had therefor (44 N. H., 293) ; but the presumption that such services are gratuitous does not apply where the parties do not live together in the same fam- ily. (33 Ala., 501.) It may be remarked in passing that a simi- lar rule applies where board is furnished to near relatives. Thus if a son boards with his father or father-in-law, or vice versa, in the absense of an express understanding or agreement that it is to be paid for, there is no liability. CHAPTER XXII. THE MASTER'S LIAblLITT TO HIS SERVANTS 1. The Employer's Duties. 4. Injuries from Defective Buildings, 2. Injuries Caused by Fellow-servants. Etc. 3. Injuries by Defective Machinery. 5. Risks not Incident to the Employ- ment. Much litigation has taken place over this subject. Employes are constantly bringing suit against their employers for injuries received in the employment, and while many of the suits are ill- advised, and hence fruitless, there are many cases in which employ- ers have been compelled to pay roundly for injuries resulting from their negligence and failure of duty toward those in their employ. While the decisions of the courts are not harmonious upon this subject, the following may be laid down as a safe doctrine for the guidance of those interested: 1. The Employer's Duties. A person who hires others to work for him is under obligation to discharge faithfully the duties resting upon h'm as master. If he fails to perform these duties, or performs them negligently, and such failure or negligence causes injury to an employe, he is liable for the damage done. He is not liable for the injuries which one servant receives from another, as will be explained, but his duties as master he must personally perform or must be responsible for. If he delegates them to some one else, if he hires a man to perform them for him, he still remains responsible for their faithful performance. This distinc- tion must be kept clearly in view. The master's obligations are: I. To exercise proper care in'the employment and retention of servants. MASTER'S LIABILITY TO HIS SERVANTS. 195 2. To exercise proper care in purchasing and retaining imple- ments and machinery. 3. To exercise proper care in putting and keeping the premises in safe and proper condition. 4. To exercise proper care not to expose the servant to risks not incident to the employment for which he hired. To illustrate the first of these general duties, suppose that a farmer employs a young boy, unskilled in farm work and espec- ially in the management of horses, and sets him to work with a spirited team. Through the negligence or inability of the boy the team runs away and injures another employe. The farmer will be liable for the injury, for although the boy was negligent, it is still the farmer's failure to exercise care in hiring the boy for the work that really caused the injury. Had such care been exercised and a competent man been hired to drive the team, the employer would not be liable, even though the same accident were to happen. Having exercised proper care in this direction the employer is relieved. If, notwithstanding such care, a man is hired who becomes negligent and careless, and injury results to another workman, there is no responsibility on the part of the employer, unless he failed to exercise care in retaining the man. 2. Injuries Caused by Fellow-servants. One of the risks which a man voluntarily assumes when he enters any employment is that due to the carelessness of his fellow-workmen. If he is injured because of any negligence on the part of a fellow-work- man he has no claim therefor upon his employer unless the employer is guilty of negligence in hiring or keeping the negli- gent workman, or unless some one to whom the employer has delegated his duties is negligent in this regard. This may be illustrated by the case of a farmer who should hire two wood- choppers to chop in his woods. He exercises proper care to ascer- tain that they are both competent to do such work, and sets them to work. One of them negligently falls a tree upon the other and injures him, or negligently injures him in some other way. The farmer is not liable. 3. Injuries by Defective Machinery. The second obli- gation of the employer to his employes is that of exercising proper care in the purchase and retention of machinery to be used in his employment. If an employer purchases machinery which 19^ MANUAL OF THE LAW. he knows is defective, or if he keeps and continues to use machinery after it has become defective and is not reasonably fit for use, and an employe is thereby injured, the employer will be liable for the damage caused. To illustrate: Suppose a farmer has an old and rickety sawing machine which he uses winters to saw up his stove wood. He continues to use it after it has become unsafe and unfit for use. The saw, perchance, has become rusty and full of flaws, and, while in high motion, it flies to pieces and cuts off a work- man's arm or leg. The farmer must pay for the damage done. The master's duty to keep his machinery in proper condition does not require that he keep it in the best possible condition or that he purchase only the most approved or most expensive machinery. His duty is complied with if he procures such machinery and keeps it in such a condition as an ordinarily prudent and careful man would under the circumstances. He can use new or old machinery, latest improved or oldest fashioned, without being liable for injuries resulting therefrom to his servants, unless there are defects in them which are not apparent to his servants. If there are latent defects which he knows about or which proper care on his part would disclose he might be liable if he continued to use them, when if the defects were open and apparent he might not be liable. The servant is required to use due care to prevent injury to himself, for if he contributes toward the negligence which causes his injury he cannot recover, though the master may have been also negligent. If he is given a machine to work with that has a secret flaw in it, the very fact that the defect is latent and unknown to him may prevent his using that care necessary to avoid injury. In other words the servant must see defects which are open and notorious and avoid danger from them, the rule being that the employer is not hable to the servants for injuries from defects known to the servants, unless he has been notified of thf defects and has failed to remedy them. 4. Injuries from Defective Buildings, Etc. The third obligation of the employer to his workmen is that of exercising proper care in securing and keeping in a safe condition the premi- ses in which the employment is carried on. To illustrate this, suppose that a farmer allows the sills under his barn to get so weak and rotten that they break and the building falls and maims a workman, or suppose that a miller allows the beams and supports under his mill to become so defective as that the mill falls and MASTER'S LIABILITY TO HIS SERVANTS. 197 injures an operative, in each case the employer will be liable. (24 N. Y., 410.) But here again, as in the case of machinery, if the defect is one which is open and apparent to the workman, and the injury is one which the exercise of care on his part would prevent, there can be no recovery. In all of these cases the employer does not warrant that his machinery or premises shall be absolutely safe, nor does he insure the servant's safety. His duty is to use proper care to see that his premises and machinery are reasonably fit and safe. It is for the jury to determine whether he has used proper care. If he has and notwithstanding it an injury has occurred he is not liable. Nor is he liable if the injury might have been prevented by the exercise of care on the servant's part. The fact however that the premises are known by the servant to be defective, does not necessarily require him to leave the service. If the defects do not indicate immediate danger, and he calls the employer's attention to them, he may continue at work, and if the employer neglects to remedy the defects and an accident happens, he will be responsible for it. (106 Mass., 282.) But if the defects are glaring and indicate immediate danger, the workman should refuse to continue the work, and if he does continue under such circumstances he takes his chances on being hurt, (no Mass., 240.) 5. Risks not Incident to the Employment. The fourth and last duty of the master to his men is that of shielding them from risks not incident to the employment for which they hired. When a man hires out in any particular business he voluntarily assumes the ordinary risks to which that business exposes him. A sailor takes the chances of wind and wave, a miner the risk of being choked by fire damp, a builder the risk of falling from the scaffold, and a painter the chances of getting the painter's colic. The contract of hiring is presumed to have been made with refer- ence to the ordinary danger of the work to be done, and the com- pensation to have been arranged accordingly. If an injury result- ing from one of these risks is sustained by the servant, it can only be regarded as an accident, a mere casualty, and the misfortune must rest on him. (28 Vt, 59.) But the employe does not undertake to run the risks incident to other employments than that for which he hired, and if he is put to other employment the master becomes responsible for the injuries he receives without fault on his part from the ordinary risks and dangers of that 198 MANUAL OF THE LA^Vf. employment. To illustrate: Suppose a farmer hires a man as an ordinary farm laborer. He is afterwards put to work in a saw mill which the farmer also runs, and is injured by one of the ordinary dangers incident to the latter employment. The farmer is liable for the damages caused by the injury. It is true the man could have refused to work in the mill, but his primary duty was obedience and he undertook no additional risks by obeyisg the master's orders. CHAPTER XXIII. THE EMPLOYER'S LIABILITT FOR THE ACTS OF HIS EMPLOYES. I. Statement of the Rule. There is an old maxim of the law — ^ui facit fer alium facit fer se, — or, " He who acts by another acts himself," which is the key-note of the master's liability for the acts of his employes. The acts of the servant, in the scope and line of his employment, are always regarded in law as the acts of the master himself, and it is for this reason that employers are so often called upon to respond in damages for injuries resulting from carelessness, negli- gence, or willfulness on the part of their employes. 1. Statement of the Rule. The employer is responsible not only for those acts which he actually directs his employes to per- form, but for everything that they do in carrying on his business. It matters not whether the acts are performed intentionally or unintentionally on the part of the servant, if injury results from them to third persons who are themselves blameless, the master is responsible. But if the employe, while in the general employ of the master, steps aside and does any act outside of his employment, then of course the master is not liable. So far as that act is con- cerned he is not in his master's employ. For example: Suppose the farmer sends his man with a team to mill and on the way the man carelessly runs over a little child, the roaster will be liable; but if while waiting for his grist the man takes one of the horses and runs a horse race with the miller's son, the farmer will not be liable for any injury that may result therefrom. If on the way Jjooie, however, the man deviates from the regular way and takes 200 MANUAL OF THE LAW. a somewhat circuitous route in order to call on his sweetheart and carelessly runs over a child, the master will be liable. He is still on the master's business sufficiently to render the master liable. While it matters not to the master's liability whether the wrong- ful act of the servant be performed by him intentionally or unin- tentionally, yet the statement should be modified by the remark that character of the intent will frequently determine the question of liability. For instance : If the servant intends by the act to further some object of his own, as to gratify a personal spite, and does not intend to promote his master's interests, then the master is not liable. To illustrate : Suppose the man on the way to the mill viciously and intentionally runs into a cow straying in the road, to gratify a personal spite which he has against the owner of the cow, then in accordance with the above principle the master is not responsible. On the other hand if the willful act in the scope of the servant's employment is done with the intention 6n his part of furthering his master's business, then the master is liable. To illustrate: Suppose the man, as he approaches the mill, willfully runs into the wagon of another farmer for the purpose of getting ahead with his grist and so to promote his master's interests, then according to the above principle the master will be liable. (See Cooley on Torts, pp. 531-541.) It matters not whether the effect of the act is really to promote the master's inter- ests or not, if the employe thinks it will and does it under that belief, then the master is responsible for it. But if the act is not within the scope of the servant's employment, then, as has been stated, it matters not what the intention or motive is, it is then not the master's act and he is not responsible for it For example: If on the way home from the mill the man meets some boys whom he mistrusts have been foraging in his master's orchard, and thinking that it will promote his master's interests he gives one of them so sincere a floggmg as to seriously injure him, the master can not be held responsible for that act, unless he directed it, for it was clearly outside of the servant's employment. Of course if the sei-vant is given any discretionary powers, as indeed most farm hands are, and in the exercise of those powers injury is done to third persons, either intentionally or unintentionally, the master is liable. For instance, if the farmer goes away from home, leaving his farm in charge of his hired man, he will be responsible for everything the man does in the general conduct of the place during his EMPLOYEE'S LIABILITY. 20l absence. The fact of his placing the man in such a position of trust justly renders him liable for the man's acts in carrying out the trust. Consequently if the man, through lack of judgment or ability, does an act which injures a third person the farmer will be liable. Nay, more, even if the man while under the influence of high temper or uncontrollable passion, steps beyond the line of his authority and inflicts an unjustifiable injury upon another, the farmer may be required to respond in damages. (69 N. Y., 129; 169.) It is thus seen that the wrongful act may be in direct disobedi- ence of the master's orders and still the master be held liable. If the act is within the scope of the employment, and is committed in the exercise of a discretion which has been given to the employe, that is sufiicient to make the master responsible. In other words, the master must not only give proper directions, but he must see to it that they are carried out. (14 How., 468; 46 N. Y., 23.) The illustrations made use of in the case of negligent fires (page 177), aptly illustrate this principle. Another familiar illustration would be the case of a farmer who directs his employe to drive trespassing cattle out of his fields, but expressly forbids him from worrying or injuring them, and the employe, directly disobeying the master, goes after them with a savage dog, or chases them with sticks or stones, and makes them jump a deep ditch by which means one of them breaks its legs. It needs no ghost to tell us that the master would be responsible. (See 16 111., 313; 49 N. Y., 255; 28 Mich., 496; 106 Mass., 105; 50 Mo., 10^, for cases in point.) It should be remarked before leaving this subject that these rules of liability apply the same where the injurious act is com- mitted by the master's son, if he works for his father, or by his wife if she has charge of the premises 15 CHAPTER XXIV. TAXATION. 1. Definition of Taxes. %. Tax Deeds. 2. Power to Tax Limited. 6. Tax Sales. 3. Is the Tax Valid. 7. I^and Sharks and Tax Titles, 4. If Paid Taxes Cannot be Recovered. Every man who owns property has to perform the not ovc. pleasant duty of paying taxes. Government is a necessity of civil- ization, and money is necessary to enable government to exist and perform its functions. The power of government therefore to tax the property or individuals within its jurisdiction is unques- tioned, resting as it does upon the highest law, that of absolute necessity. In raising its revenues the government endeavors to secure justice and equality, and to place a burden upon the indi- vidual as near as may be in proportion to the benefit he receives. As a person owning much property receives more benefit from the government in the way of protection for his property than the person owning but little, it is right that he should pay more toward the support of government. For this reason taxes are usually assessed, not against the individuals, but against the prop- erty in a State. In spreading taxes upon property the design is to distribute them equally upon all property of whatever kind within the taxing district. Of course there are a few exemptions, includ- ing the property of religious and educational institutions and a few household chattels and goods covering the bare necessities of life. But aside from these limited exemptions the law provides for the equal assessment of all property, real and personal, lands, chattels, securities, and investments^ to the end that every thing of value may contribute its proportionate share toward the burden of its TAXATION. 203 own protection. But much personal property — like stocks, bonds, notes, and other similar securities — is of such an intangible nature that in spite of the law it often escapes taxation. The searching eye of the most vigilant assessor fails often to discover its where- abouts, so that as a matter of fact in this country the principal part of the burden of supporting government falls upon the real estate, or upon the owners of the land. Land is tangible, immovable, and impossible of concealment, while much personal property can be easily hid away. Money, for instance, rarely gets assessed, and secured debts, like mortgages, generally escape. Indeed, except in the cities where the expense of local government is high, there is not much effort made to get them represented upon the assessment roll. And where effort is made to do so, where the records are examined for the purpose of finding who owns mortgages, it is not difficult to evade the assessor's eye. For instance a person taking a mortgage can have it made to some friend in whom he has confidence living in another State or country, who gives him an assignment of it. He puts the mortgage on record, but does not record the assignment. The record then shows only a mort- gage made to a person in another State beyond the tax collector's reach. There are other devices for avoiding taxation which might be mentioned. All of them involve a certain degree of dishon- esty, and a shirking of the plain duties of citizenship. In this country taxes are comparatively light, and they are generally levied with justice and equality. Patriotism requires their prompt and willing payment. When they become oppressive or unjust there is generally means of legally avoiding them as we shall see. 1. Definition of Taxes. Taxes are the enforced proportional contribution which the State requires of persons, or levies upon property for the support of the government and for the public needs. That government must have means to enable it to dis- charge its manifold functions is obvious; that the discharge of these manifold functions and duties is necessary to the protection and well-being of citizens is also obvious, hence as we have seen the power w^hich is given to government to enforce payment of taxes is justified by the necessity which compels it. 2. Power to Tax Limited. While this power of govern- ment is great and imperative it is not arbitrary, but rests upon fixed principles of justice. These principles majr be enumerated as follow?; 204 MANUAL OF THE LAW. 1. The tax must be raised for a public purpose, and not for a private purpose. To illustrate: Suppose an industrious farmer meets with misfortune by having his house burn down, and the township with generous sympathy votes to repay him his loss. The amount is included in the tax to be raised that year and js spread upon the roll. The effect is to vitiate the entire tax for that year. It is a defect sufficient to warrant the restraining of the collection of the tax; or if the tax is not paid on any particular piece of land, and it is sold by the State, the tax deed will be void. 2. The tax must be levied upon a principle of equality and uni- formity. There must be some systematic apportionment of the tax among those who receive the benefits to pay for which the tax is raised. To illustrate: A State tax must be apportioned to all the property and persons throughout the State, a county tax throughout the county, and a town tax throughout the town. To secure this uniformity two things are essential, i. In each taxing district taxation must be confined to objects within its jurisdiction and limits. 2. There must be a uniformity in the manner of assessment. The legislative power in each State, to secure uniformity and equality in taxation, has prescribed a way in which taxes shall be raised. To determine whether any particular tax is properly lev- ied, so as to impose a legal obligation upon the tax payer to pay it, a comparison must be made between the method pursued in levy- ing the tax and the method prescribed by law. If any require- ment of the statute intended for the benefit of the tax payer has been omitted, the tax is void and its payment cannot be enforced. 3. Is the Tax Yalid. To answer this we must not only know that the laws authorizing the tax are valid but that they have been faithfully carried out by the taxing officers. Tax laws must embody or be in accordance with the general principles above laid down, and they must conform to any other hmitations that may be contained in the constitution of the particular State. If they do not they are not good laws, and a tax levied under them is not valid. But suppose that the tax laws are all right, it is then necessary to see that in the case of the particular tax in question they have been properly executed. If it is found that there has been any substantial variation from the method they lay down, and especially if any requirement obviously intended for the bene- fit of the tax payer has been omitted, the tax, as we have seen, is TAXATION. Z05 void. For example: The tax laws generally require that the assessment rolls, as prepared by the supervisor or assessor, shall be placed open to the inspection of the tax payers, in order that an opportunity for complaining of grievances may be had before the assessment is finally fixed. This is a requirement obviously for the tax payer's benefit, and if it be omitted the tax v^ill be void. Again the amount to be raised in any given taxing district for certain purposes, as bridges, roads, etc., is usually limited to a certain amount. If an amount in excess of the limitation is spread upon the rolls, the tax is void. In general, it may be said, that if any portion of the amount claimed for taxes is illegal, vv^hether by being for an unauthor- ized purpose or for an amount in excess of that allowed by law, the whole tax is thereby rendered void. To illustrate; The stat- utes of Michigan provide that the electors of a township may vote a tax not exceeding in any year one per cent of the assessed value of the taxable property in the town, for the purpose of building a town hall. Suppose they disregard this limitation and vote an amount, in excess of the one per cent, which is included in the general tax. The effect will be to invalidate the entire tax. (40 Mich., 627,) 4. If Paid, Taxes Cannot be RecoTered. As a matter of fact, owing to the many statutory requirements to insure just tax- ation and to the inexperience and inaccuracy of taxing officers, a large proportion of the taxes levied in this country are invalid. But as the tax payer generally receives substantial benefits from them, or from most of them, it is the nearly universal custon to pay them without question or protest. Indeed the expense and trouble of discovering the defects and proving their existence is in general greater than any one individual's tax will warrant. Hence unless there is some serious injustice or hardship in the tax, or some other special reason for avoiding payment of it, it is usually and quite properly paid without complaint. When it is so paid it cannot generally be recovered back, unless paid under protest. If people illegally taxed acquiesce and pay their taxes they can not afterward be heard to complain, but if they refuse the courts have no power to compel them. (17 Mich., 218; 40 Id., 628.) This is the general rule. In some of the States there is provision made by statute for paying the tax under protest and then recov- ering back if it proves illegal, in an action against the township. 2o6 MANUAL OF THE LAW. 6. Tax Deeds. The power of taxation necessarily implies the power to collect the tax. If the one did not include the other the State would be left without certain means of getting its revenues. If the tax is not voluntarily paid, the law can and generally does authorize the subject on which the tax is levied to be sold for its payment. Thus land is sold for non-payment of taxes, and the conveyance by which it is sold is called a tax deed. This instru- ment, executed by the proper official in the name of the State, undertakes or purports to convey the title to the land described in it to the purchaser at a tax sale. But it is not a warranty deed; its recitals bind no one, and its validity depends upon the regular- ity of the proceedings prior to it. It does not even create a pre- sumption that the facts upon which it is based are true, nor does it estop the former owner from setting up any defense he may have. The purchaser takes his chances of getting title, and upon him rests the burden of proof. When, however, it is shown that the public officials have properly performed every duty imposed upon them in the premises, and that every condition essential to its validity has been complied with, the tax deed becomes conclusive evidence of title in the grantee or purchaser, according to the extent and purport of the deed. (Blackwell on Tax Titles, 430.) We see from this that if the tax, for the non-payment of which the land is sold, is invalid for any of the reasons hereinbefore stated, the tax deed will be of no value. 6. Tax Sales. These are sales of lands for the non-payment of the taxes assessed upon them. The power to sell does not attach till every other means of collecting the tax is exhausted. All the proceedings prior to the sale — the assessment, levy, attempt of collection, and everything connected with them — must have been regular. The lands must have been duly entered upon the tax roll by plain and legal description ; they must have been duly assessed according to law, and the custom of assessing them delib- erately at one-half or one-third their cash value when the statutes require them to be assessed at their full cash value, is sufficient to cast grave doubts upon the validity of the sale. The assessment roll must have been placed in the hands of the proper officer with authority to collect the tax; the tax must have been demanded, all means for collecting it exhausted, the list of delinquent lands prop- erly returned, a judgment rendered (when judicial proceedings are necessary), the necessary warrant or authority delivered to thi; Taxation. i'-'l officers entrusted with the power of sale, and the sale advertised in due form of law. The sale must be at public auction, at the exact time and place fixed by law and mentioned in the notice, to the highest bidder (which in many of the States means the person who will pay the tax and expenses due on the tract offered for the least quantity of it), and the sale must be for cash. The statutes authorizing the sale must be closely followed. We, of course, cannot give even an outline of these statutes. Each reader must, as he has occasion, look up the statutes of his particular State him- self. 7. Land Sharks and Tax Titles. In almost every com- munity there may be found a few individuals Delonging to a peculiar class of human cattle popularly called ♦• land sharks." They subserve a not unuseful purpose as affording a means for venting the superfluous spleen of the neighborhood and as being invulnerable objects for the imprecations, maledictions and general abuse of the public at large. Their special delight is the worthless tax title, and their traditional victim the defenseless widow. I do not think they deserve all the abuse they receive; but it does not seem to do them any harm. They aid the government in collecting its taxes, because when people neglect or refuse to pay the taxes assessed upon their lands they are always ready and willing to pay the taxes for them by buying the lands at the tax sale. With the tax title they thus acquire they proceed to harrass the owner, and they invariably succeed in getting their money back with a goodly allowance for " interest and expenses." People are thus rightfully afraid of them, and it is safe to say that were it not for their pres- ence everywhere there would be more taxes unpaid than there is. Let us suppose, what often happens, that owing to some mis- fortune or neglect, a farmer or other landowner finds one of these " sharks " in possession, for an insignificant sum, of a tax deed to his farm. What, under the circumstances, and in the light of what is above set forth, is it best to do? The tax deed gives its possessor the right to commence an action of ejectment against the party in possession of the land. In that action the validity of the tax deed is determined. If the deed is found to be valid its owner will be given possession of the land. But as the chances are decidedly against such a result the holder of the deed will rarely commence suit. He is generally content to hold the deed without putting it to any valid test, hoping that ?o8 MANUAL OF THE LAW. sometime before his deed outlaws the owner of the land will find it necessary to buy his title in order to perfect his own. As the existence of the tax deed is, to say the least, a flaw in or cloud upon the title of the land, which in case of a sale of the land would be objectionable to the purchaser, it is, of course, desirable to buy it if possible. If the holder of the tax title will take anything reasonable for it, that is if he will take what it cost him, with interest and a fair amount for his trouble, it will be best to buy it. If the tax title is obviously invalid it will still be policy to buy it if can be bought at a reasonable figure, for it would cost considerable to get it set aside. An invalid title may be set aside by filing a "bill to quiet title," as it is called, and this will cost generally from $25 to $50, or probably more. If the "shark" is very unreasonable and demands an enormous figure for his claim, it will be best to let him wait awhile. He may calm down in time. His claim will expire by limitation in fifteen years in most States, and in some States less. If the " shark " commences suit against you put your case in the hands of the best attorney in your community, and the probabilities are that the " shark " will compromise. CHAPTER XXV. THE LAW OF SALES. t. As Applied to the Purchase and Sale of Fann Products, Etc. a. What is a Sale. 3. The Thing sold. 4. Contracts of Sale Must Sometimes be in Writing. 5. Form of Memorandum of Sale. 6. Form of Contract of Sale. 7. Goods, Wares, and Merchandise. 8. Acceptance and Receipt. 9. When Title to Property sold Passes. 10. Cases Where Title Does Not Pass. 11. When the Title does Pass. 12. Condition. 13. Warranty of Goods. 14. Express Warranties. 15. General Warranty. 16. Warranty of Horses. 17. Written Warranties. 18. Implied Warranties. 19. Purchase of Spurious Goods. 20. Sale of Fruit Trees and Other Nursery Stock. 21. Remedies for Breach of War- ranty. 22. Rights and Remedies of the Seller of Goods. 23. Stoppage of Goods in Transitu. 24. Rights and Remedies of the Buyer. 1. As Applied to the Purchase and Sale of Farm Pro- ducts, Etc. This branch of law is of great importance to traders and commercial men generally, being the legal basis of all their transactions, but it is scarcely less important to farmers and mechanics, for it underlies and determines many of their rights and liabilities. In the purchase of farm supplies, the sale of farm products, and the sale of mechanics' and craftsmen's wares, it is of constant application; and perhaps of the entire business transac- tions of an average community, more are regulated by the princi- ples of this department of law than by those of any other. The subject is therefore well worthy of study by the mdustrial classes. Note. — The writer desires to express his grateful acknowledgment to Mr. Wil- liam L, Carpenter of Detroit, for valuable assistance in the preparation of this Caiapter.— H. A. H. 4IO MANUAL OF THE LAW. 2. What is a Sale. To constitute a valid sale there must be a concurrence of the following elements, viz.: i. Parties com- petent to contract. 2. Mutual agreement or assent. 3. An arti- cle or thing the property or title of which is transferred from the seller to the buyer. 4. A price in money, paid or promised. That it requires competent parties and mutual assent to effect a sale is manifest from the general principles governing all contracts as set forth in the first chapter of this book. The third and fourth essentials require some explanation. A sale is a transfer of a £^en- eral or absolute interest in, or title to, the thing sold, and not a i'^ecz'a/ or particular interest. For example: A farmer borrows a plow to use, or he has the custody of a horse with power to sell it, or property is left with him as security for a debt, he has only a s fecial interest in such property, and the transaction by which he acquires that interest is not a sale. In regard to the element of price, it must be money, either paid or promised. If the consideration for which the thing is sold be anything else it is not a sale. If property be exchanged for prop- erty it is a barter, and if property is exchanged for work or rent it is not a sale, though the legal effect of such special contracts are generally the same as in the case of sales. 3. The Thing Sold. The thing sold must be something in existence or capable of being brought into existence. If it is sup- posed to be in existence and as a matter of fact it is not, then the sale is void, and no rights or liabilities arise or attach to either the seller or buyer. For example: If I sell a ship that is on the ocean at the time of sale, and it turns out at that time the ship was lost, the sale is void. I cannot be required to deliver the ship or pay damages, nor can the buyer be required to stand the loss. The transaction is simply void. If money has been paid it must be paid back. (9 Exch., loi.) Sales of Things not yet Made or Owned by the Seller. Unlike the case just mentioned where the thing sold has passed out of existence, sales of things not yet in existence are valid. These things the law divides into two classes, one of which may be sold, the other can only be the subject of an agreement to sell. The class which may be sold embraces all things which are the natural product or increase of something already owned by the seller, as, for instance, the crops that will grow on his fields, the wool to be clipped from his sheep, the apples to be picked from his THE LAW OF SALES. an trees, and the like. But only an agreement to sell and not an actual sale can be made of those things which are to be afterwards acquired by the seller, — as the wool of any sheep he may buy, oi any goods that he may purchase at a future time. The import- ance of this distinction between these two classes rests on this fact that, if the seller of goods, respecting which only an agreement to sell can be made, refuses to carry the sale into effect when the property reaches the condition to be sold, then the buyer will acquire no title or interest in them. All that he can do is to sue the seller for breach of contract. But in the case of the first class, the sale being absolute, the title passes at the time of sale, and no new act by the seller is necessary to complete the sale. If the seller refuses to deliver, the buyer can take possession just as he could of any other property belonging to him. (no Mass., 303.) To illustrate : A farmer sells a crop of growing wheat, both parties to the contract intending that the title shall be transferred at once, the property in the wheat at once passes to the buyer, and when the crop ripens he has a right to harvest it without any further consent on the part of the seller. But on the other hand suppose a farmer sells a crop of wheat on a farm that he contemplates buy- ing; he afterwards buys the farm, the crop ripens, and he refuses to allow the purchaser to harvest it. In this case the property in the wheat not having passed, the only remedy the purchaser has is to sue the seller for damages. 4. Contracts of Sale Must Sometimes be in Writing. At common law a verbal contract of sale was always valid and bind- ing. But among the requirements of the Statute of Frauds (pre- viously referred to, page 35), which is now in force in all the States, is one which provides that " no contract for the sale of any goods, wares or merchandise, for the price of $50 or more shall be allowed to be good, unless 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 payment, or some note or memorandum in writing of said bargain be made and signed by the parties to be charged by such contract, or by their agents thereunto lawfully authorized." If the contract price of the articles sold is less than $50 an oral or verbal contract is binding; but if it is $50 or over, then the con- tract must be in writing, or the articles must be delivered, or paid 212 MANUAL OP THE LAW. for in whole or in part, otherwise the contract can not be enforced and no rights or liabilities attach to either party. The following forms will be found sufficient to cover the require- ments of this statute in ordinary cases: 6. Form of Memorandum of Sale: — John Brown and Peter Jones agree as follows: John Brown is to sell to Peter Jones 300 bushels white winter wheat at $1 per bushel, and to deliver the same at the mill of Peter Jones, between the first and twenty-fifth day of September next. Peter Jones is to pay for the said wheat on or before the first day of October next Dated August I, 1884. JOHN BROWN, PETER JONES, 6, Contract of Sale: — GENERAL FORM. This agreement, made this day of , 188 — , between A B , of , and C D , of , Witnesseth : That the said A B , in consideiation of the agreement hereinafter contained to be performed by the said C D , agrees to sell and deliver to the said C D , at his store-house in , (here describe goods, their quantity and quality), on or before day of . That the said C D , in consideration thereof, agrees to pay the said A — B the sum of dollars per for the said immediately upon the delivery thereof. Witness our hands this day of , 188 — , A B C D . An important question arising under this enactment is whether contracts for, the manufacture of articles are required to be in writing, if for over $50. The authorities are almost hopelessly in conflict on this question, but the following may be regarded as the most reasonable rule, and the rule which seems to be fast gaining the assent of our highest courts: If the contract is intended to result in transferring, for a price, a thing or chattel in which the purchaser had no previous property, it is a contract within the statute, and must be in writing or the statute in some other manner complied with, otherwise the contract will not be binding. But if the purchaser furnishes the material out of which the chattel is to be made, then it is a contract for work and labor, and is not covered by the statute, (i Best & Smith, 272; 14 Mich., 271.) To illus- trate: A farmer orders a wagon made according to certain speci- fications, for which he agrees to pay $80. By the above rule this is a contract for the sale of a chattel, and neither party is bound by it unless the statute of frauds is complied witli. A blacksmith, THE LAW OF SALES. 2i3 therefore, who takes a farmer's order for a wagon should have the order reduced to writing and signed by the farmer; or it would be better if both should sign it, then it will be mutually binding. 7. Goods, Wares, and Merchandise. Questions sometimes arise as to what things are included under the above terms. Chat- tels of all kinds fall under such a description, and all of the crops grown by the farmer which are the result of his yearly labor; that is all annual crops which are sown and gathered each year, such as wheat, corn, potatoes, and oats. These are " goods, wares, and merchandise," and their sale is governed by the principles abo, e laid down. On the other hand those crops which are the natural growth of the soil, such as grass, timber, fruit on trees, to which the annual labor of man only contributes partly, are not " goods, wares, and merchandise," but are while still on the soil interests in the land itself, and a transfer of title to them can be accomplished only by such formalities as are necessary for transferring title to the land. The moment however that they are severed from the land they become chattels and pass under the former rule. To illustrate this, suppose that a farmer desires to sell a crop of apples still on the trees, or the timber standing in a certain wood-lot. He must do it by giving a regularly executed deed of the apples or the timber, just as he would of the land itself, otherwise no binding or enforcible sale will be made. But were he to sell a crop of corn, which is of annual growth, no writing would be required at all, unless the price exceeded $50. 8. Acceptance and Receipt. By receiving and accepting the goods sold, or any part of them, the statute is complied with and the contract rendered binding, but there must be both acceptance and receipt. There may be an acceptance without a receipt, or a receipt without an acceptance, and in neither case will the contract be binding. To constitute a receipt and an acceptance the goods, or some part of them, must come into the possession of the buyer, and he must do some act in relation to them after he has had the opportunity of rejecting them. If after he has had such an oppor- tunity he exercises any act of ownership over them it amounts to an acceptance. To illustrate: A farmer delivers wheat to a miller at his mill. That is a receipt. The miller examines the wheat and empties the bags into his bin. That is an acceptance. After that is done, and not till then, or until some other similar act is done, the contract is binding, the sale is made. This rule 2 '4 MANUAL OF THE LAW. applies whether the contract comes within the Statute of Frauds or not, (3 Gray, 333; 118 Mass., 145.) The contract will be binding if the requirements of the statute are complied with at any time after it is, made. Though not bind- ing when made, it will become binding when reduced to writing and properly signed, or when part payment is made and accepted, or when receipt and acceptance take place. To illustrate: A farmer sells 1000 bushels of wheat at $1 per bushel by a verbal contract; 10 bushels are delivered and accepted by the buyer, the whole contract then becomes binding. Or if a memorandum is made the contract becomes binding upon the one who signs. If but one signs, only the one who signs can be sued; therefore in order to make the contract mutually binding each party should insist on the other's signing it. 9. When Title to Property Sold Passes. It is often very important to know just at what moment the title to property being sold passes from the seller to the buyer. If, for instance, the prop- erty is suddenly destroyed the question as to who shall stand the loss depends upon who owns the property at the time. For the purpose of determining this, contracts of sale are divided into two classes, — executed and executory. In an executed contract the moment the contract is concluded the property in the thing sold passes to the buyer; while in an executory contract the title of the property remains in the seller till the contract is executed. The first is really a sale, the other only an agreement to sell. To dis- tinguish these classes and to determine when the contract is con- summated the following rules may be made use of. i. If it is the intention of the parties that the transaction shall be a sale, then it will be such, and the title will pass at once, and if such intention is clearly manifest it matters not what situation the property may be in. The title to it will pass, though there may be no actual delivery of it, or though it may be located in a distant part of the country or the world. If the intention is not expressed in words or writing it may be gathered from the acts of the parties or from surrounding circumstances; but it must be made clearly manifest or this rule will not apply. Perhaps in the great majority of cases the intention is not clearly manifest, hence rules for determining it are needed. 2. Where there has been no manifestation of inten- tion, if a specific thing has been agreed upon and is ready for delivery, the law presumes that the contract is an actual sale; but if THE LAW OF SALES. 215 the goods are not specific, or if when picked out or specified, any- thing remains to be done by the seller to put them in a deliverable shape, or to ascertain their value or price, then the lavsr presumes that the transaction is a contract of sale and is not to become a sale until delivery and acceptance. To illustrate; If the farmer says to the drover, as they stand looking at the farmer's cow, " I will sell you that cow for $25," and the drover says, " I'll take her,' that concludes the sale; and if while the drover is counting out his money the cow is suddenly killed by lightning, it will be the drover's loss. It is seen from this that payment of the money is not essential to pass the title. But if it is understood that the sale is to be for cash, the purchaser, though he may acquire title, will have no right to take the property without payment or tender. It would be otherwise of course if by the terms of the contract credit was given. The mere fact that after the property has been appropriated, that is, pointed out in a deliverable condition, the duty remains on the seller to deliver the same at some place agreed upon, will not prevent the title from passing. A lumberman once sold a bill of lumber in his yard, the lumber being selected and paid for, the seller agreeing to deliver the same at the railway station. Before he could so deliver it, it took fire and burned up, and the court held that the title had passed and that the loss fell upon the buyer. (25 N. Y., 530.) In another case lumber was sold at a price to be afterward determined ; it was duly inspected and set aside awaiting delivery upon the purchaser's boat when it should arive. While so situated it was destroyed by fire without fault on the seller's part, and the court held that the title had passed and the loss was the buyer's. (24 Mich., 486.) In these and all similar cases title passes at time of sale. As further elucidating this subject we per- haps can not do better than to group the instances where title does not pass at time of sale. 10. Cases Where Title Does Not Pass. i. There is first the case above referred to where something remains to be done by the seller to put the property in shape for delivery as required by the contract. This is illustrated by a case in Massachusetts where R. bought of F. a large quantity of fish lying in two piles. They were to be paid for 30 days after delivery and F. was to dry the fish before delivery. It was held that the fish remained the prop- erty of F. (ill Mass., 10.) Or take the case of a farmer who 16 2l6 MANUAL OF THE LA^. should sell a bin of wheat which is to be cleaned before delivered. It would remain the farnrier's property until cleaned and ready. 2. Where something remains to be done to the goods by the seller, or by botli parties, for the purpose of ascertaining the price of the goods, where the price is to depend upon their quantity or quality, the title will not pass until that thing has been done. To illustrate this another actual case may be cited. L. bought of E. all the prime lumber in his yard at certain specified prices for each quality, and paid $500 on the purchase price. L. was to pay the balance at a future date. Before the assortment, inspection or delivery of the balance it was burned. Held that the property in it had not passed, and the loss fell on the seller. (27 Mich., 324.) Or suppose a farmer sells a bin of beans, at $1.56 per bushel for the choice, and 15 cents per bushel for the culls, after sorting. The title to the beans would not pass until the beans were sorted and ready for delivery, and if in the meantime they burned it would be the farmer's loss. 3. Where the thing is not specified or definitely pointed out at time of sale, as a wagon to be made, or 100 bushels of wheat out of a bin containing a larger amount, the title will not pass. W. bought of B. 15 of the best^ sheep in his flock. The sheep were not picked out at the time, and before they were selected a con- troversy arose as to whether the title had passed to the seller, and the court held that it had not. (24 N. H., 336.) 11. When the Title Does Pass. If the title does not pass at the time the sale is made it is important to know just when it does pass, so that in case the property is lost it may be known upon whom the loss falls, and trouble thus be avoided. So much depends upon the circumstances of each particular case that it is difficult to give any general rule of great practical value. The title will pass when, and not till when the goods have been selected and set apart for the purchaser in accordance with the terms of the contract. The difficulty in applying this rule is to deterftiinc who by the terms of the contract is to make the selection. It may be the buyer who has this authority, or it may be the seller, or it may be both. To determine who is to make the selection the. follow- ing rule may be of service. The party who by the terms of the contract is to do the first act, which can not be done till after the selection is made, has authority to make the selection. To illustrate: A farmer orders from a seed merchant a pack- THE LAW OF SALES. 21? age of turnip seeds, to be sent by mail. It is obvious that the mail- ing of the seeds is the first act to be done after the sale is made. This act by the terms of the contract is to be done by the seller, and he therefore is to make the selection. Consequently the selec- tion of the seeds and mailing of them by the seed merchant passes the property to the farmer, and if they are lost in the mails it is the farmer's loss'. And, generally, it may be stated, that where goods are ordered from a distance to be shipped by a carrier, as by freight, mail or express, delivery to the carrier by the seller, passes the title to them. Of course if the goods do not comply with the order no title passes, unless they are accepted by the buyer after he has inspected them, all of which is explained fur- ther on. On the other hand a farmer sells to his neighbor a barrel of apples to be picked by the neighbor from the tree on which they are growing. Here the buyer is to do the first act, and there- fore he is to make the selection. When the apples are picked the title passes. 12. Conditions. By a condition in a contract of sale is meant some stipulation, the non-performance of which will justify a repudiation of the contract. There is, for instance, in the case of a sale by suTnple an implied condition that the goods delivered shall correspond with the sample. If they do not the buyer is justified in repudiating the contract and refusing to take the goods. Or if the goods are ordered by description they must substantially conform to the description or the buyer can not be compelled to accept them. Again if goods are sold on trial or approval, the buyer has a reasonable time in which to try them, and until he accepts, or until the lapse of this reasonable time, the title remains in the seller. To illustrate: A farmer buys a mowing machine with a stipulation that if the machine does not, on ten days trial, meet his approval he shall not be bound to keep it. During the ten days the machine remains the property of the seller. The farmer can change his mind as often as he chooses about keeping it, and he can refuse to accept it for any reason satisfactory to him- self. But if he continues to use it after the ten days have tran- spired, it will be an acceptance and he will be bound to pay for it. So, too, in the case of sale by sample or description, if the non- compliance of the goods with the sample or description can be ascertained by inspection, the purchaser is bound to so ascertain it at otice and refuse to accept the goods, otherwise his retention of 2i8 MANUAL OF THE LAW. the goods will be an acceptance of them. To illustrate : A farmer orders from a distant factory a four spring buggy ; a three spring buggy is shipped to him. He takes it from the depot and uses it for several days. This amounts to an acceptance and it becomes his. In the case of a " Sale or Return" that is where property is bought with the privilege of returning it if the purchaser does not like it, the title passes at once to the purchaser with the right of revesting it in the seller at his option. As for instance where the farmer buys a pair of boots with the privilege of returning them if they do not fit; they become his boots as soon as he takes them. There is thus a distinction between the cases where the purchaser has an option to keef the goods if he likes them and those where he has an option to return them if he does not like them. In one class of cases the buyer does not own until he approves, in the other he does own until he disapproves. (loo Mass., 198.) To illustrate: A farmer buys a harvester under a contract authorizing him to return the same if it does not work to his satisfaction. If the harvester is destroyed by any accident it is the farmer's loss, but as has been illustrated in the case of a sale on approval, if the harvester were bought with the privilege of trying it and keeping it if satisfactory, it would remain the prop- erty of the seller until the buyer had done some act signifying approval. Reflection will be necessary to determine under which of these two classes any particular sale falls. (104 Mass., 362; 50 Ala., 329.) 13. Warranty of Goods. A warranty is an agreement that the article sold possesses some stated qualities. It is an agreement the breach of which entitles the purchaser to damages; it differs thus from a condition which if broken sets aside the contract and prevents the sale from taking place. Non-compliance with a war- ranty leaves the contract of sale still standing and binding, while non-compliance with a condition renders the sale void. Warran- ties are either express^ that is stated in words or writing, or they are implied, that is raised by the law. 14. Express Warranties. No special form of words is nec- essary to make an express warranty. Any statement made by the seller at the time of sale will be a warranty, if so intended. The seller of a piano stated at time of sale that the piano was " well made and would stand up to concert pitch," This was held to be THE LAW OP SALES. »I9 a warranty. (6 Allen, 413.) A decisive^ test to determine whether a statement will amount to a warranty is whether the statement is of a fact of which the buyer is ignorant, or is only an opinion or a judgment which either party can give. The former is a warranty, the latter not. Of course the ordinary bandinage of trade, and the customary chaffing or praising which sellers sometimes indulge in are not warranties. The maxim, Caveat emptor^ " let the pur- chaser beware," is the general rule ; but when the seller states as a fact something which the buyer is not in a position to know, then he is as much bound to see that such statements are fulfilled as if he in words says he warrants them true. It is seen therefore that it is not necessary to use the words " I warrant," or " I guaran- tee,". or any similar expression in order to create a warranty, it being sufficient if there is a statement of facts intended as war- ranty. An excellent illustration of this is an English case (5 M. & R., 124), in which the seller of a horse had told the buyer that « the horse was sound to the best of his knowledge," but refused to warrant, saying, " I never warrant. I would not even warrant myself." It was afterwards found that the horse w^as unsound and that the seller knew it, and it was held that the language used constituted a warranty of soundness and that the seller was liable. 15. General Warranty. Where the seller simply says, "I warrant the thing," or « I warrant it sound," that is a general war- ranty. Such a warranty does not extend to defects apparent on a simple inspection, nor to defects known to the buyer. To illus- trate: A general warranty, or warranty of soundness of a horse would not be broken by the fact that the hoise could not see out of an eye that was obviously gone, and the buyer knew it was gone. If, however, the apparent defect is one which may or may not be an indication of serious consequences, the warranty will be broken if those serious consequences develop. To illustrate: A horse was once sold, warranted " sound wind and limb." The horse afterwards proved to be permanently lame from the effects of a splint on the fore leg, which was apparent at time of sale. It appeared in evidence that there were two kinds of splints, one of which caused lameness and the other not. It was held that as the result could not be told from an inspection of the splint at the time of sale that the seller was responsible under his warranty. (8 Bing., 454.) 1 6. Warranty of Horses. It is very common for horses to MANUAL OF THE LAW. be sold warranted " sound." It is therefore innportant to know what will be a breach of this warranty of soundness in horses. The rule laid down is that any disease or accident which makes the animal less capable of work, or which diminishes his natural usefulness, or which will in its ordinary progress have these effects, is an unsoundness, and hence a breach of the warranty. Such for instance as " bone spavin in the hock," " ossification of the cartil- ages," "thick wind" and "roaring," have been held to be "unsound- nesses;" but "crib biting," "mere badness of shape," "hocks which render the animal liable to curb," and " thin soled feet," have been held not to be unsoundnesses. 17. Written Warranties. If the contract of sale is in writ- ing, the warranty, if any, must be contained in it, for it cannot be shown that any warranty not contained in the writing was made. If the contract of sale is not in writing the warranty need not be, and whether or not there was a warranty will be gathered from all the circumstances, the acts, sayings, and conduct of the parties at the time of sale. Unless the language of the warranty expressly includes it, the waranty will only cover defects which exist at the time the war- ranty is made. But defects which do not exist at the time of sale may be guaranteed against by express words, as where a watch is warranted to run for five years, or anything else is warranted for a definite time. 18. Implied Warranties. \. Of title. When one sells goods which are in his possession at the time of sale, he by so doing war- rants that the title which he conveys is a valid and perfect title, and if the purchaser loses the goods, by reason of the title prov- ing defective, he can recover from the seller the price paid for the goods and damages for breach of contract. If the goods at the time of sale are in the possession of a third party there is no implied warranty of title, and the purchaser must take his chances. If the title fails he has no remedy, unless there was fraud or an express warranty. 2. Implied Warranty of Quality. As has been stated, Caveat Emptor — "let the purchaser beware" — is a maxim of the common law. The buyer, in the absence of any fraud practiced upon him by the seller, takes his chances upon the quality of the goods he buys, unless there is an express warranty, except in certain cases THE LAW OF SALES. 221 as below set forth. Under the following circumstances the law will raise an implied warranty of quality: 1. In the case of sale by sample there is an implied warranty that the quality of the goods delivered shall be equal to that of the sample. 2. Where goods are sold by description and there is no oppor- tunity for the buyer to inspect them, there is an implied warranty that they are salable and merchantable. To illustrate this point: A farmer orders a sack of Java coffee. It is shipped to him, opened, and after using it he discovers that it has been spoiled. Under these circumstances the merchant from whom it was ordered will be held to have warranted that the coffee was good and salable, and he will have to pay the damage caused. 3. Where an article is sold for a specific purpose known to the seller, who undertakes to supply it for that purpose, there is an implied warranty that it is reasonably fit for the purpose. To illustrate: A coach maker furnished a carriage pole; the pole broke because not reasonably fit for the purpose, though from a defect not apparent; it was held that the coachmaker was respon- sible for the damage. (Law Reports, 2 Q. B., 102.) This princi- ple fixes the liability of manufacturers who furnish machinery to perform a certain purpose. To illustrate: A farmer orders from a manufacturer a pump for use in a well 80 feet deep. By send- ing a pump to fill this order the manufacturer impliedly warrants that the pump will answer the required purpose. If, after the pump is put to use, the farmer finds that it will not work, that it will not raise water that distance, or for some other reason will not answer, it is then the manufacturer's duty to remedy the defect or pay for the trouble and damage caused. 19. Purchase of Spurious Seeds. The farmer is often most seriously damaged by buying worthless farm and garden seeds. Many seeds will not grow well if kept over one year, and an inspec- tion of them will not show whether they are good or whether they are old and worthless. There is no test which the farmer can read- ily apply to determine whether they are good or bad. Consequently if the seed merchant sells him old seeds, which have been left over from the last year's stock, the farmer may have the trouble and expense of preparing his land and sowing his crop for nothing. Again, some kinds of seeds are difficult to distinguish from others. Cabbage and turnip seeds are very similar in appearance. If the 222 MANUAL OP THE LAW. farmer prepares his soil for a crop of turnips and the merchant sells him cabbage seed, which he can not by inspection distinguish from the turnip seed, it will probably result in a loss of his entire labor and expense in getting the soil ready, and of course it will cut off his expected profits. His damages may amount to many dol- ars, and it is therefore desirable to kriow his rights in the matter. The sale of seeds falls under the second principle above laid down, namely the sale of goods by description. Goods so sold where there is no opportunity of inspection, or w^here an inspection will not reveal their worth, are impliedly warranted to be good and merchantable. Very few seeds are of such a character that the most careful inspection will reveal their true worth. Where, therefore, they are labeled and sold for a given variety there is usually an implied warranty that they are as represented and that they are good. (69 N. Y., 65.) The usual measure of damages for breach of w^arranty is the difference between the value of the thing as furnished and the value it would have if as warranted. This rule generally works justice, — but in the case of a sale of worthless seeds, a recovery of the difference in intrinsic value of good and bad seeds, or even a recovery of all that had been paid for the seeds, would fall far short of the farmer's actual loss, whose labor for the entire season upon a given field may have, for that reason, practically come to naught. On this account the decisions have made exceptions in the case of seeds to the general rule, and the measure of damages in such cases seems now to be the value of the crop that would have grown had seeds been as warranted, less the expenses of raising the crop and the value of the crop actually produced. (34 N. Y., 634.) Profits which certainl)' would have been realized except for the seedman's default may be shown and recovered as damages. In other words, one may now recover the reasonable profits of his crop had the seeds been good. To avoid this liability seedsmen now generally print upon their packages a notice that they do not warrant the seed. If this notice is brought to the attention of the buyer, and is given in good faith by the seedman, it may have that effect. But if the seller knows that the seed is bad, and he sells it with such notice, he will be liable for fraud and the measure of damages will be the same, or greater. 20. Sale of Fruit Trees and other Nursery Stock. Simi- ilar to the sale of spurious seed is the sale of young fruit trees or other nursery products which are not of the kind represented. A THE LAW OF SALES. 223 farmer decides to plant an orchard. He buys the young trees from a neighboring nurseryman; sets them out, and carefully keeps them tilled, primed, and trained for ten or twelve years until they begin to bear. If he then finds that they are not the kind ordered, but are of a totally worthless variety, his loss is serious indeed. But by ordering a given variety from the nurseryman, who under- took to fill the order, he obtained from the nurseryman an implied warranty that the trees were good and merchantable, and of the kind ordered, and the nurseryman is bound to make good the loss. The measure of damages would be similar to that used in the case of the sale of worthless seeds. 21. Kemedies for Breach of Warranty. Where the goods sold do not turn out to be as warranted, the buyer, as a remedy, can sue the seller and recover such damages as equal the difference between the value of the goods as delivered, and the value of them if they had been as warranted. This, as above stated, is the general rule. To illustrate it: A horse is sold warranted sound. It turns out that the horse has an ailment rendering him perma- nently lame. As warranted, he would be worth $200. In his actual condition he is worth but $50. The buyer can recover the difference as damages, namely, $150. In certain cases it has been held that where an article has been sold to answer a certain pur- pose, with an agreement that if it does not it shall be made to do so, and it does not, on trial, answer the purpose, and the seller fails to make it so, the buyer can return the article and recover, as damages, the contract price and also the actual damage sustained, (35 Mich., 310.) 22. Eights and Remedies of the Seller of Goods. If the buyer refuses, without legal cause, to accept goods properly ten- dered him in fulfillment of the contract, the seller can sue him and get as damages the difference between the value of the goods at the contract price and the value at which the seller can then dis- pose of them. To illustrate: A farmer contracts his wheat at $1.10 per bushel. At the time fixed for delivery wheat has fallen to 96c per bushel, and the buyer notifies the farmer that he won't take it. The farmer can sue and get as damages 14c on each bushel of wheat contracted for, (12 Met, 482; 5 N. H., 307.) Or to illustrate further: Suppose a farmer contracts to buy ten tons of plaster at $5 a ton, which is duly shipped to him by freight. Upon its arrival at the time of delivery, the farmer declines to take 224 MANUAL OF THE LAW. it. He perhaps may have lost faith in plaster and concluded that he rather pay damages than to have the stuff on his place. The dealer can recover as damages the difference between the contract price and the value of the plaster at the place where it then is. If it has no market value there the damages will include what it will cost to take it to some place where it has a market value, unless he can sell it for more where it is. The seller is always bound, under such circumstances to do the best he can with the goods, and to make his damages as small as possible; and if he fails to do so, he will have to stand the increased loss himself. If the property in the goods has passed to the buyer, and the goods remain in the custody and possession of the seller, and the buyer refuses to per- form any condition required to be performed by him before the goods are delivered, the seller can refuse to deliver the goods, and can sue the buyer for the price of them, keeping the goods for the buyer until the termination of the suit; or he can resell them, and hold the buyer for the difference between the price at which he sold them and the price the buyer agreed to pay; or he can keep the goods as his own, and recover the difference between the contract price and the price at which he can again sell them. To illustrate : A farmer sells 200 cords of wood in a deliverable con- dition at $3.00 a cord, to be drawn away by the buyer within two weeks, the buyer to pay for the same before drawing them away. The buyer refuses to make the payment. After the lapse of the two weeks, the farmer can sue the buyer for the price of the wood, keeping the wood subject to the buyer's order till the termination of the suit, and collect the full contract price as damages; or he can sell the wood to another buyer, taking care to sell it at the best possible price, and recover as damages the difference between the price at which he sold and the $3.00 per cord; or if he prefers to keep the wood himself he can recover the difference between the $3.00 per cord and what the wood will bring. 23. Stoppage of Goods in Transitu. In general the delivery of goods by the seller to a railroad company, steamboat line, or other carrier, in conformity with the buyer's orders, passes the property to the buyer beyond the control of the seller. But if the buyer becomes insolvent while the goods are on the way and before they pass out of the carrier's hands, the seller may retake them or stop them and hold them until they are paid for. This is what is called " stoppage in transitu" It can only be exercised THE LAW OF SALES. 225 when some part of the price of the goods remains unpaid, and when the buyer becomes insolvent (by which is meant a general inability to pay his debts), and also while the goods are in transit. To illustrate: A farmer, in conformity with a contract of sale, ships a car of wheat to a merchant in a distant city. The price of it is to be paid at a future day. While the wheat is still in posses- sion of the carrier, the merchant fails, or becomes insolvent. The farmer may and should at once telegraph the agent of the carrier to hold the wheat subject to his order, and the carrier will be obliged to do so. (106 Mass., 67.) 24. Rights and Remedies of the Buyer. If the property in, or title to, the goods, still remains in the seller, and he refuses to deliver the same under a valid contract of sale, the-only remedy of the buyer is to sue him for damages. And, in general, he will recover as damages the diiference between the contract price and the market value of the goods, that is, the price at which he can get them elsewhere. To illustrate: A farmer contracts to buy from a brickmaker 50 thousand brick, at $4.00 per thousand, to be delivered in February. Before that time brick go up to $6.00 a thousand, and the brickman, having, perhaps, in the meantime, sold all his brick at the advanced figure, cannot complete his con- tract. The farmer can recover as damages $2.00 per thousand for the brick contracted. The fact that the article bought has been, in reliance upon the contract, sold at a higher price, or the fact that its non-delivery occasions increased damages — as if it were part of the machinery of a mill which must lie idle in consequence — will not usually alter the general rule. These damages are regarded as accidental, and the law does not charge them to the seller. But if the seller knows when the contract is made that the non-delivery of the goods bought will result in such extra or acci- dental damages to the buyer, though there is some conflict among the cases upon the point, the weight of authority is that they can be recovered as part of the damages. (40 N. Y., 422.) If the goods tendered by the seller to fill an order do not answer the required description, the buyer, as has been stated, can reject them, and if the seller has no further time to comply with his con- tract, the buyer can sue him and recover damages according to the general principles above laid down. CHAPTER XXVI COMMON CARRIERS. DUTIES OF PERSONS ENGAGED IN CARRYING GOODS AND PASSENGERS. 1. Who is a Common Carrier. 2. Duty of a Carrier of Goods. 3. Carrier of Goods Injures their Safe Delivery. 4. Limitation of the Above Rule. 5. Special Contracts Limiting Car- rier's Liability. 6. When Carrier's Liability Begins. 7. When Carrier's Liability Ceases. 8. Duty of a Carrier of Persons. 9. Different Rule of Liability for Carriers of Persons. 10. Evidence of Negligence of Carrier. 11. When Liability to Passenger Commences and Ceases. 12. Carrier Must Carry all Impartially. 13. What Excuses for not Carry- ing are Valid. 14. Rules Adopted by Carriers. 1 . Who is a Common Carrier. Judge Cooley in his work on "Torts" (page 638) gives this definition of a common carrier: "One who regularly undertakes for hire, either on land or water, to carry goods, or goods and passengers, between different places for such as may offer." This includes express companies, railway companies, steamboat companies, etc., but it does not include those carriers who have no regular route and who only carry under par- ticular contracts. A common carrier may be a carrier of all kinds of goods or only of one or more particular kinds. Thus an express company is not a common carrier of grain in bulk, nor a railway company of money packages. 2. Duty of a Carrier of Ooods. In general a common car- rier is required to carry all goods of the classes which he has been accustomed to carrying, or which he proposes to carry. He must receive and carry for all who offer, without discrimination or par- COMMON CAEKIEES. 227 tiality. He may make special bargains in exceptional cases for carrying at reduced rates, but he must not carry for one on terms which he will not give to all. He may carry at a reduced rate for persons who will relieve him of some of his liabilities as a common carrier, providing he will do the same with all; but he cannot carry at a reduced rate for one who ships more freight than another. To allow discrimination in favor of the larger ship- per would disable the smaller shipper from competing with him. and would practically result in giving a monopoly of trade to the larger shipper. This is why the courts have decided that such discrimination is illegal. The farmer therefore has a right to insist that a railway company shall carry his single car load of wheat on the same terms on which it carries each of the hundreds of car loads shipped by the wheat buyer from the same place of shipment. 3. Carrier of Goods Insures Their Safe Delivery. In the absence of a special contract the obligation of a common carrier is to accept and promptly transport all goods of the class which he car- ries and deliver them without damage, unless prevented by the act of God or of the public enemy. He becomes in fact an insurer of the goods against all losses except such as result from " the acts of God " — like violent storms, lightning, sudden floods, etc., — or the invasion of a public enemy. If the goods are lost or injured the carrier must pay for them, whether he is to blame or not, unless the loss resulted from these two causes. 4. Limitation of the Ahore Rule. But this extreme liabil- ity does not extend to those slight losses which are occasioned by the natural wear and chaffing in transportation, nor to losses result- ing from frost, fermentation, evaporation, decay of perishable articles, and other such natural causes. The carrier must exercise all reasonable care to prevent losses from such causes, and having done that his liability ceases. Nor does the carrier insure against losses which result from the goods not being in a condition fit for transportation, nor from not being properly packed or put up for shipment. Losses from such causes are clearly the fault of the shipper and upon him they fall. Likewise there is an exception to the rule in the case of the transportation of live stock. The carrier does not insure against injuries arising from their nature and propensities, which could not be prevented by foresight, vigilance, and care. Animals may die 228 MANUAL OF THE LATf. from fright, they may injure each other, they may refuse to eat or drink, or they may sicken and die without apparent cause. In all of these cases the carrier will be relieved of liability if he can show that he has exercised that degree of care and diligence which the nature of the animals required, and that he provided suitable means of transportation, etc. 5. Special Contracts Limiting Carrier's Liability. Car- riers may limit their liability by making special contracts with ship- pers to that effect. An agreement that the carrier shall not be held to the strict rule of an insurer is valid, and unless there is a statute requiring it to be in writing, it may be made verbally. But a notice posted up in the place or business of the carrier, or handed to the shipper, and to which the shipper has not given his assent, is not sufEciiint to limit liability. Though a receipt, given upon the delivery of the goods, which contains the terms of the contract of carriage has been held to be sufficient. The acceptance of a receipt may not therefore be always a wise precaution. The receipt will in most cases be found to contain a contract of carriage which in legal effect exempts the carrier from everything except the conse- quences of his own negligence. The depositor of a package with an express company who procures a receipt for it, has, according to very many authorities, entered into the contract set forth in the receipt, which contract usually so limits the carrier's liability that the shipper is left at his mercy. This doctrine that the taker of a receipt limiting the carrier's liability is bound by it, is a harsh one, and one that the growth of the law should and no doubt will modify. The Supreme Court of the United States has taken the correct view of this matter, which is that where the receipt is taken merely as a receipt^ to preserve evidence of delivery, the liability of the carrier can not be thereby limited. (Railway Co. V. Manufacturing Co., i6 Walace.) 6. When Carrier's Liability Begins. The responsibility of a carrier begins when the goods are placed in his hands for car- riage. If they are sent to his warehouse or depot for shipment to a certain point, and are there destroyed by fire, he is liable as an insurer. But if the goods are in the carrier's hands awaiting orders from the shipper, the carrier is only responsible for loss or injury resulting from his negligence. 7. When Carrier's Liability Ceases. If the carrier is to transport the goods only over a part of the distance to their point COMMON OABEIERS. 229 of delivery, his responsibility ceases when the goods are turned over to the connecting carrier. If he is to transport them to the point of delivery, his liability ceases when they are delivered according to the custom of business at that point. If, according to that custom, the delivery is made at the place of business of the consignee, then the liability will not cease until they are so deliv- ered. But if the custom is to deliver them at the warehouse of the carrier, the weight of authority is that the liability continues until the consignee is notified and has a reasonable time and oppor- tunity to come and get his goods. For instance, if a carrier, like an Express Co., notified a consignee in the evening or after bank- ing hours, that a package of money had been received for him, he would not be obliged to get it until the next morning. If thieves broke in and stole it meanwhile, the carrier would be responsible. In all cases where goods remain in the hands of a carrier after his liability has ended, he is responsible for the damages resulting from his or his servant's negligence, but for those only. 8. Carriers of Persons, Their Liability, Etc, When we turn our attention from those who are engaged in carrying goods to those who are engaged in carrying passengers, we naturally expect to find the liability for safe carriage not decreased. As a matter of fact, however, we do find that while the carrier practi- cally insures the safe transit of a car load of wheat, he is bound only to use due care in the transit of a car load of passengers. He insures the safety of your bushel of potatoes; he need only be careful of your wife and child. If the one be lost through the unavoidable breaking of a rail, he must pay for it. If the health or life of the other be destroyed by the same cause, no compensa- tion can be obtained. The duty of a carrier of persons is to use that degree of care which the nature of his business requires. This, especially in the case of carriers by steam power, is the very highest degree of care, skill, and foresight for the safety of the passengers. All reasonable precautions in the conduct of the business, the securing of the most approved appliances, etc., must be observed. If an injury occurs and it can be shown that it was in any degree owing to any omission, neglect, or want of highest care on the part of the carrier or his servants, he will be held liable for the damage sustained. (Redfield on Ry's, § 149.) But where the injury occurs by reason of a defect which no degree of watch- fulness on the part of the carrier could have prevented, he is clearly 230 Manual of the law. not liable. (Angell on Carriers, § 534.) If the injury results in any degree from the negligence of the passenger, that is, if there is any contributory negligence on the part of the passenger, then there can be no recovery of damages. (Redfield Ry's, § 330.) 9. Eeason for Different Kule of Liability of Passenger Carriers. The reason for this distinction in the rule of liability in the case of carriers of persons, is found in the fact that the law fixing the liability of carriers of goods grew up at a much earlier time and under very different circumstances from that fixing the liability of carriers of passengers. The liability of the carriers of goods was legally determined so long ago that no one knows when the first decisions were made. It was at a time, no doubt, when the roads of England were so beset by robbers and high- waymen that to have allowed the carriers to excuse themselves by simply showing due care would have tended to bring about con- spiracies between them and the robbers. Such conspiracies were in many cases supposed to exist. It became necessary, therefore, to hold carriers to the strict rule of insurers in order to give any security to shippers of goods. Tlie law determining the liability of passengers is of modern origin, the first decision being in 1791, and its growth is hardly yet completed. The reasons which existed for imposing the onerous liability on carriers of goods do not exist with respect to -carriers of passengers, and the liability of the lat- ter has therefore been placed upon the broad principle of negli- gence, above stated. 10. Evidence of Negligence of Carrier. In all countries and States where the common law is in force, with the single exception of the State of Michigan, the occurrence of an injury to a passenger in transit is prima facie evidence of negligence of the carrier. In a suit brought by an injured passenger all that need be proved is that the passenger was injured through the breakage of some instrumentality over which the carrier had control. When such proof is made it devolves upon the carrier to show that such breakage was in no manner due to his fault or negligence. 11. When Liability to Passenger Commences and Ceases. The obligations of the carrier to the passenger commence when the passenger enters upon the grounds of the carrier for the pur- pose of being carried, and they do not terminate until the journey is completed £ind 9, reasonable opportunity to leaye the preiriisss of COMMON CAEEIESS. 23' the carrier has been afforded. The carrier must therefore provide reasonable and safe means of access to and exit from whatever means of transit he furnishes liis passengers. 12. Must Carry all Impartially. Like a carrier of goods he must carry impartially everyone who presents himself as a pas- senger, unless he has a valid excuse for not doing so. He must receive, carry, and bestow equal care upon every one who offers, no matter what his race, class, color, or previous condition may have been, and he will be liable for any damage resulting from a violation of this duty. 13. What Excuses for Not Carrying are Valid. There are certain reasons which will excuse carriers for refusing to take passengers. Among these are; i. That there is a great and unexpected press of travel which has exhausted all their present means of transit. 2. That the would-be passenger will not con- form to the reasonable regulations enacted by the carrier or other competent authority for the conduct of passengers; or 3. That he is grossly intoxicated, or is for any other reason unfit to be in a car with respectable people. It is not a sufficient excuse that the proposed passenger is a colored person, or a Chinese, or Indian. All races have equal rights in America. Nor is it a valid excuse that the traveler is possessed of a low moral character. Such per- son has the right to be carried, though the carrier must exercise vigilance to maintain good order and guard passengers from vio- lence, danger, theft, or any other evil that may naturally be expected. Carriers have been held liable for moneys which a gambler defrauded of a minor while traveling. (31 How. P. R., 272.) But they are not liable for the acts of a mob which could not have been anticipated. 14. Rules Adopted by Carriers. Carriers may adopt rea- sonable regulations respecting their business and the conduct of passengers. Such rules must be observed by passengers, and a failure to do so gives the carrier a right to remove the offending passenger from the vehicle. (67 Me., 103.) Among such rules, and regarded as reasonable, is the rule that the passenger shall procure a ticket; that he shall show it when called upon to do so; that the ticket shall be used for only one continuous journey, etc. Though a passenger may be removed for a non-compliance with any proper rule, the carrier must see to it that no unnecessary force is used or injury committed. 17 CHAPTER XXVII. LA WS CONCERNING ANIMALS. I. As to Horses. 7. Sale of Diseased Cattle X. Horse Breakers, Their Rights 8. Brands and Ear Marks, and Duties. 9. As to Shaep. 3. Horse Breakers' Lien. 10. Diseases of Sheep. 4. Stallions. 11. Taking Sheep on Shares, 5. Veterinary Surgeons and Far- 12. On the Sale of Wool. riers. 13. As to Bees. 6. As to Cattle. 14. As to Hogs. The farm being the basis of our material prosperity has received constant and careful attention from our legislators. There are many legal provisions of great interest to the agriculturist which have not been included in the preceding chapters. Some of the most important of these vsrill be found grouped in this chapter. 1. The Law as to Horses. From its high position in man's esteem the horse has been given a definite legal status by our laws. In the chapter on the Hire of Animals, the law governing the letting of horses for use will be found fully set forth, and the reader who is interested in this subject is referred to that chapter. Among other things equally important concerning the matter of horses are the following ; 2. Horse Breakers, their Rights and Duties. One who employs a person to train or break his horse, is, in the absence of an express agreement between them, obliged to do everything reasonable on his part to accomplish that object, to hide no defects or peculiarities of temperament that might render the task difficult or dangerous, to accept the animal, when broken or trained, and pay the price agreed upon, or if none has been mentioned, to pay LAWS CONOEENING FARM ANIMALS. 233 a fair compensation. The trainer is bound to exercise due care, and he is liable for any negligence or for a lack of the skill required for the undertaking. The law implies a contract on his part, not only that he will use care and diligence, but that he possesses that degree of skill and knowledge which will enable him to properly perform the service. If he fails, and the animal is injured because of his ignorance or carelessness, he is bound to pay the damage done. (40 111., 210.) He w^ill not be responsible for any injury resulting from any inevitable accident, or theft, or by reason of any disease, or from any -fault or vice of the horse. 3. Lien of Horse Breaker. There is some conflict of author- ity as to whether, in the absence of a special statute, the horse breaker is entitled to any Hen upon the horse for the amount of his services. The general rule is that he is. No lien will attach unless the horse has been given into the possession of the trainer. The same is true regarding the owner of a stallion, or in regard to veterinary surgeons and farriers; where the animals are given into their possession, they have a lien upon them for a reasonable charge for their respective services. Whenever the animals are voluntarily allowed to be taken from their possession the lien ceases. i. Stallions. The owner of a stallion who keeps the same for use, is bound to possess and exercise such a degree of care and skill in the business as will prevent injury to mares which may be entrusted to him. If the stallion is vicious, and so known to be by the owner, and by his viciousness a mare is injured, the owner is liable. So also if the mare is injured through lack of the peculiar care and skill required of the one who " tends " the stallion, the owner is liable. The owner of the stallion has a lien upon the mare for the value of the service, and where the mare is delivered into his possession he may retain the same until his charge is paid. (4 Mees. & Wels., 283.) 6. Veterinary Surgeons and Farriers. The principles applicable to horse trainers apply to the case of veterinary sur- geons and farriers. They are held to the exercise of ordinary care and diligence, and must possess sufficient skill and learning to properly discharge their duties. A veterinary surgeon impliedly holds himself out to the public as being skilled in his business and competent to care for sick or injured animals. His contract is not 234 MANUAL OF THE LAW. that he will cure all animals entrusted to him, but that he will use all the known and reasonable means to effect a cure. If he does not do so he is liable in damages for the injuries resulting from his failure. Such damages are generally determined by a jury. A farrier is held also to the same rules. He impliedly contracts in taking a horse to shoe, to do the work in a proper manner, and he IS bound to possess the degree of skill, and exercise that care which will enable him to do so. If he lames the horse in shoeing it, an action will lie against him for the injury caused. He is regarded as being in the- nature of a public agent, and he is bound to serve the public without discrimination. He has a lien upon the animal for his service. 6. Tlie Law as to Cattle. There are many special statutes for the protection of cattle from disease. There have been acts of congress preventing the importation of cattle from foreign countries at various times when dangerous diseases have been known to prevail among cattle in other parts of the world. The statutes of the various States usually provide for the regulation or prohibition of the introduction into, or transportation through, the respective States of cattle affected by infectious diseases. Many of the States have commissions whose duty it is to make exami- nation and to prohibit the importation of these cattle. These commissions usually have full power to enforce their regula- tions. Statutes of this character are constitutional, being for the general good. They can not be avoided on the ground that they are an infringement of the right of a citizen to acquire, use, and dispose of property. They come within what is called the police power of the State. Under this power the destruction of diseased animals is provided for, and the sale of animals affected by contagious diseases is prevented or made a misdemeanor and punishable as such. The reader should examine carefully the stat- utes of his own State upon this general subject. 7. Sale of Diseased Cattle. Apart from any statute, if one sells diseased cattle, fraudulently representing them to be free from disease, or concealing the fact that they are unhealthy and dan- gerous, he will be liable to the purchaser for the consequences. Whenever property is sold for any purpose, especially ff it be sold for food, the seller in making false representations concerning it will be held to have accepted the consequences that may reason- LAWS CONCEKNING FARM ANIMALS. 235 ably result from such sale, and he will be held to a strict account- ability. 8. Brands and Ear Marks. There are statutes in the west- ern States generally providing that the owner of stock may adopt any distinctive mark or brand for his cattle, and such mark when properly adopted becomes his special property and can not be used by another without grave liability. Such marks must be recorded with some official, usually the county clerk, and they become evi- dence of ownership when branded upon cattle. Upon the sale of the cattle the mark must be counter-branded, which indicates that the transfer from the original owner has been valid. The alteration of marks or brands upon cattle for the purposes of theft is made a serious offense. 9. The Law as to Sheep. Sheep are protected by the stat- utes in most of the States from the ravages of dogs. It is made lawful for their owners to kill any and all dogs caught in the act of worrying them, and the owners of such dogs are made liable, not only for the actual damage done, but often for a much larger amount, inflicted as a sort of penalty for the harboring of such dogs. This matter was touched upon under the sub-head " Dogs," found on page 160. When several dogs, belonging to several owners, unite in doing mischief to sheep, they are not jointly liable for the injury, but each is liable for the injury committed by his own dog. (2 Con., 206.) In determining what damage was caused by each the presumption is, in absence of proof to the contrary, that one dog did as much damage as another (20 Barb., 479)» though the jury may consider the size, ferocity, and habits of each dog. (35 Barb., 303.) There are some cases holding that each owner is accountable for the whole damage caused by a sheep stealing expedition in which his dog is engaged. (63 Penn. St., 341.) 10. Diseases in Sheep. A person owning sheep affected with any contagious disease must see to it that the disease is not communicated to other sheep. If he knowingly sells a diseased sheep, concealing the fact of the disease, he will be liable not merely for the difference in value of the diseased sheep and a healthy one, but for the other damages that necessarily follow from it, which, if the disease were communicated to the whole flock of the purchaser, might be very large. (13 Wend., 518.) There are laws for the protection of sheep from infectious diseases 236 MANUAL OF THE LAW. similar to those for the protection of cattle. The reader should acquaint himself with the statutes of the several Slates. 1 1 . Taking Sheep on Shares. When sheep are " taken on shares " the question of the ownership of the increase may become important. The general rule is, that the increase of animals belongs to the person who owns the mother, but this is not the case when sheep are pastured, as they sometimes are, for a certain proportion of the lambs and the wool. In such case the owner and the agistor are tenants in common of the increase and of the wool until it is divided. Until the respective share of each is set apart to him they own the whole in common. The right of the agistor to his proportion, however, may depend upon the fulfill- ment of his contract. The condition, where none is expressed, upon which he is entitled to a share of the increase, is that he will exercise reasonable care and diligence in his keeping of the sheep, and he is held to a fair showing before any title vests in him. (16 Vt., 382.) 13. On the Sale of Wool. Because of the peculiar manner in which wool is packed it is difficult for the purchaser to make a thorough examination of it at the time of sale. The rule caveat emptor does not apply with so much strictness in sales of this kind as in others. The purchaser is not required to lay open each pack- age to its center, but is allowed to rely upon the statements made by the seller. Such statements amount to a warranty; and if he remains silent when he possesses information which he ought to disclose he will be responsible for damages. (43 Cal., 1 10.) 13. La'ff' as to Bees. Bees have become the subject of very important property rights, the industry of keeping them having grown to one of great proportions. When domesticated, the ordi- nary rules applicable to personal property apply to them. They are property and as such are taxable the same as other property. If they swarm and escape from their owner they are still his if he piusues them with reasonable promptness. (15 Wend., 550.) As to whether he would have the right to enter upon another's land to claim them seems to be established the same as in the escape of other domestic animals. ( 15 Wend., 550.) Judge Cooley says: "Possibly it might be held — as we think it certainly ought to be — that the owner of the bees might enter to retake them if he could do so without doing injury to the land, but the lavr would give LAWS CONCERNING FARM ANIMALS. 237 him no implied license to cut a tree for the purpose." (Cooley on Torts, p. 435, n. 5.) As to wild bees the rules regarding wild animals are modified. Generally no one owns a wild animal until it has been subjected to the control of man. But bees have a local habitation usually in a tree and consequently are, in a sense, under the control of the owner of the tree. The right to cut the tree rests solely in the owner of the soil, and therefore such property as wild bees may be the subject of rests in him. Though bee-hunters may claim a right to the tree on the part of the first finder, the law does not recognize any such right, and one who enters without permis- sion to cut it will be a trespasser. (20 Johns, 75-) The owner of bees should not hive them so near the highway as that they will be likely to sting horses or other animals pass- ing. If there they become irritable, and the owner knows it, and they do damage to a passer by, the owner will probably be liable. (8 Barb., 630; 24 Mo., 199.) 14. Law as to Hogs. The general principles applicable to domestic animals apply also to hogs. If known to be diseased when sold, the seller is obliged to make known the fact to the pur- chaser, and if he does not do so he will be liable for all the dam- ages caused. (14 Allen, 20.) But where hogs and other domestic animals are sold without an express warranty the buyer takes them as they are. If he has an opportunity to examine them he will be held to take his chances on losses which may result from their being unsound, provided there is no fraudulent concealment of facts which render them worthless or dangerous. The rules governing the matter of trepasses by hogs are touched upon in the chapter on Trespasses. At the old common law a hog found trespassing might be killed damage feasant, but this has passed away with other ancient and harsh laws and has been replaced by statutory methods of obtaining summary relief in the several States. CHAPTER XXVIII. PASTURING ANIMALS. 1. General Rule Applicable to the 5. Statutory Lien. Case. 6. Trespasses by Animals Pastured. 2. The Agistor is not an Insurer. 7. Agistor can not use Animals Pai- 3. Duty of the Agistor. tured. 4. Has no Lien at Common Law. The custom of taking horses and other domestic animals to pasture is so common in many parts of the country that the liabil- ity of the farmer engaged in this should be understood. 1 . General Rule Applicable to the Case. One who takes animals to pasture for a certain price is what is called in law a bailee for hire or custody, and he falls within the general rule applicable to bailments. His contract with the owner of animals is that he will give them that care and attention which their value, liability to injury, etc., require. He is bound to use ordinary dili- gence, and he must make good all losses which result from both gross and ordinary negligence. One who takes animals to pasture is called an agistor of them, and the term having this definite sig- nificance will be made use of here. 3. The Agistor is not an Insurer. While the agistor must bestow upon the animals entrusted to him a degree of care com- mensurate with their value and their likelihood to be injured, and while he is liable for the injuries which result from a failure to use such care, he is not an insurer of them. If they stray away from his premises, or are stolen, or injured through no fault of his, the loss must fall upon their owners. 3. The Duty of the Agistor. As to what will amount to the care required of one who takes animals to pasture, the rule is PASTUEING ANIMALS. 239 that it must be such care as a prudent person would give to his own animals of a similar character and under similar circum- stances. The rule goes further than the maxim laid down by the moralists, that " he who undertakes another's business, makes it his own " — that is, agrees to bestow the same care and attention upon it that he does upon his own, for he may be a careless and improvident person and habitually give to his own affairs a less amount of skill and care than is required. He must exercise the care of a prudent man, and he must possess such skill and knowl- edge of the business as will enable him to do so. He need not necessarily be a veterinary surgeon, but he should understand the habits and needs of the animal, and possess and exercise the ordi- nary common sense of a good farmer. Among the instances of negligence for which a liability would arise, are over stocking of land so that proper pasturage for all the animals is not provided, failure to provide water in constant and sufficient quantities, allow- ing the fences to become insecure or to remain out of proper repair, negligently leaving the gates open so that the animals stray and are lost. i. The Agistor has no Lien at Common Law. At com- mon law there is no lien given to the one who pastures animals. The agistor has no right to keep the beasts until his claim for pasturage is paid unless there is some local statute authorizing it. Where a person is obliged, by law, to do certain things, upon or about the property of others, he has a lien upon such property, that is a right to keep it until his legitimate charges are paid. Thus common carriers, inn-keepers, farriers, and the like, had a lien because they were bound in their respective lines to serve the public, but an agistor is not required to take in the animals of any or every one that comes along; he can pasture only such animals as he pleases. Nor can he claim a lien on the ground that his skill and labor have added to the value of the property; he has' therefore no lien for the animals' pasture, but must look solely to their owners for his pay. 6. Statutory Liens. But the statutes of some of the States have given a lien to agistors. The statutes of Michigan provide that " whenever any person shall deliver to * * * • any person any horse, mule, neat cattle, sheep, or swine to be kept or cared for, such other person shall have a lien thereon for the just value of the labor and skill applied thereto by him, and for any materi- 2^0 MANUAL OF THE LAW. als which he may have furnished for the keeping and care of such animals, and may retain possession of the same until such charges are paid." The additional expenses occasioned by the keeping of the animals after the lien has accrued constitutes an additional lien under the Michigan statute. (Howell's Statutes §§ 8399 and 8407.) The statutes of other States will be found to contain somewhat similar enactments. 6. Trespasses by Animals Pastured. When animals which are out at pasture escape from their inclosures through the negli- gence of the agistor and trespass upon adjoining lands and there cause injury, the injured party could at common law recover dam- ages for such injury from either the owners of such animals or from the agistor. The statutes of many of the States, and the rulings of American courts, have established the rule that the action lies only against the agistor, or that when the owner of the animals is proceeded against he is entitled to recover from the agis- tor the amount which he has been obliged to pay if the trespass can be traced to any neglect on the latter's part to use the care required of him. 7. Agistor Can Not Use Animals Pastured. Of course in the absence of an agreement, the one who takes animals to pas- ture has no right to put them to work, though if a horse required a certain amount of exercise it would be proper to give it to him. This would not extend to using him for plowing or other farming purposes, and if so used and injured thereby the farmer might be liable for his full value. (46 N. Y., 490.) CHAPTER XXIX. HIRING OF ANIMALS. 1. Wights and Duties of the Owner. 4. Rights and Duties of the Hirer. 2. The Owner Warrants Title. 5. Borrowing Animals. 3. Abuse of Hired Animals. It is not uncommon in all communities to let out animals for hire. This is the principal business of livery stable men and is not an unusual transaction among farmers. It will be well there- fore to learn something of the law respecting such transactions. 1. Rights and Duties of the Owner. In the hiring of ani- mals it is the duty of the lessor, to him who is to have the use of the animals, to deliver them at the time agreed upon, in proper condition for the contemplated use, with suitable appendages, such as harness, etc., for the service intended, and to refrain during the time that the hirer is to have the animals, from doing any act which will interfere with the use and employment of them. If the animal is not in a proper condition for the use required of him the hirer is not bound to take it, and if after being taken the owner sells it or allows it to be attached or in any way taken from the hirer, it is a violation of the contract and the owner is responsible for the damage. The owner must see that he loans only an ani- mal fit for the service required. If he loans a vicious or runaway horse and injury results without fault of the hirer the owner must not only stand the loss but pay for all the damage done. 2. Owner Warrants Title. It follows that the owner war- rants the title and the right of continued possession to the hirer, but he warrants only against the rightful and legal claims of third persons and not against the acts of any wrong doer who may dis- turb the hirer's possession. 24a MANUAL OP THE LAW. 3. Abuse of Hired Animals. But should the hirer greatly abuse the animal hired, or otherwise violate the terms of the hiring, it may give the owner the right to terminate the contract and to reclaim the animal at once. The owner will of course have an action for the injury resulting from any cruel treatment or negli- gent use of the animal by the hirer, but there are authorities hold- ing that any improper use or abuse of the animal will of itself terminate the contract of letting and give the owner the right to retake the animal, if he can do so peacably. It will at any rate give him the right to maintain an action for its recovery. (12 Pick., 135; 3 id., 492.) A Minnesota case holds that where a horse was overdriven that the Owner was not only authorized to go and retake it, but that he could recover all his expenses in going to the place where the horse was and of bringing it home. (13 Minn., 335.) 4. Rights and Duties of the Hirer. It is the duty of one w^ho hires animals to use them as a prudent man would use his own under the circumstances. He must provide them with suitable and sufScient food, shelter, and care during the time he has them unless there is an express understanding otherwise. If he does this his obligations will be discharged, he will not be responsible for damages resulting from accidents, or injuries, or illness of the animals, or any other cause. The expenses involved in the ordi- nary keep and care of the animals must be met by the hirer. But extraordinary expenses which are incurred by any inevitable acci- dent or sickness of the animals must be paid by the owner. If, for instance, a livery horse should fall sick without fault of the hirer, the expenses of caring for him would fall upon the owner, and if paid by the hirer may be recovered back. So, too, if the animal is stolen the rule is the same, if there is no negligence or lack of the care of a prudent man, the loss falls upon the owner. The hirer does not insure the safe return of the animal, but only agrees to take that care of it which a prudent man would of his own. It is the duty of the hirer to return the animal at the time agreed upon, or failing in this to show that it is lost or delayed by some means which the care of the prudent man could not have pre- vented. 6. Borrowing Animals. There is a distinction between " hir- ing" and "borrowing" animals. The borrower is held to a HIRING OP ANIMALS. 243 higher degree of care and responsibility. If the loan is made gratis, the borrower, while he does not become an insurer, must see to it that the animals are treated with the highest degree of care. He must not put them to any other use than that agreed to by the lender (5 Mass., 103), nor should he allow third persons to have the custody or control of them. The lender, however, must not be too careless in lending his property. If he should loan a spirited animal to a boy, or to a person whom he knows to be incapable of handling it, he must do it at his own risk. CHAPTER XXX. LANDLORD AND TENANT. 1. The Importance: of the Subject. 9. What Alterations Tenant May 2. Leases of Land. 10. Collecting Rent. 3. The Duties of the Landlord. II. Landlord's Title Can Not be 4. Landlord Must Pay the Taxes. puted by the Tenant. 5. The Rule as to Repairs. 12. Tenant Must Guard the Property. 6. Repairs of Fann Property. 13. What the Tenant May Remove. 7. Repairs of Fences. 14. The Termination of a Tenancy. 8. The Tenant's Duties. 1. Tlie Importance of the Subject. There is hardly a busi ness relation more frequent, and hence more important, in th< modern community than that of landlord and tenant. This rela- tion is created by a contract, either express or implied, between the parties. It is implied whenever one man owns the land and another is in possession of it by permission. The law, in such case, presumes that the one is the tenant of the other, whether there is any agreement to that effect or not. The relationship is said to be express whenever there is a contract regarding the matter between the parties. 2. Leases of Land. This contract is called a lease; it is a sort of a conveyance either for a certain number of years, for life, or at the will of one of the parties. The lease is usually made on condition that certain money, called rent, shall be paid by the per- on taking the lease, though payment of rent is not an essential part of the contract. Leases may be written or they may be verbal, that is by mere word of mouth. Verbal leases, however, are valid only where premises are leased for a short time. The statute of frauds of most of the States provides that " no estate or interest LANDLOED AND TENANT. 245 in lands, other than leases not exceeding a term of one year, shall be created, granted, assigned, or surrendered, unless by act or operation of law, or by a deed of conveyance in writing subscribed by the party granting, etc." A verbal lease, then, for more than one year is void, and as the lease is void so an agreement to make such a lease is void, unless the agreement is in writing, conse- quently it will not be safe for one to depend on a verbal promise to lease for more than a year, as he will be without remedy if after having gone to expense and trouble, the person who prom- ised him the lease declines to make it. Leases from mouth to mouth and for one year may be made verbally and, though noth- ing is said except that the tenant shall occupy aind shall pay a cer- tain rent, all the mutual obligations and rights belonging to the relationship of landlord and tenant at once arise. Where the lease is for more than a year one of the appended blanks (see index of forms) may be followed, and when a promise to rent for more than a year is made it should be done in writing, by the form given further on. The questions most commonly arising between landlord and tenant, are those as to the duties of the land- lord and the mutual rights between the parties. It will be well here to determine what the landlord must do in connection with the premises, and what things must be done by the tenant. 3. The Duties of the Landlord. It is the duty of the land- lord to see that his tenant has the quiet enjoyment and possession of the premises. By the mere act of leasing them he has assumed to own them, and his right to collect rent depends on the undis- turbed possession of the premises by the tenant. If the tenant is put off by any person having a valid claim on the premises, that of course terminates the relation. (56 111., 417.) Of course a mere dis- turbance of the tenant by a trespasser, or the act of any stranger to the title, will not relieve the tenant from payment of rent; it must be a disturbance by one who has a superior title to the landlord. If the landlord willfully enter upon the land and expell the tenant from even a small portion of the premises, it has been held to relieve the tenant from all further payment of rent, though he continue in possession of the residue. 4. Landlord Must Pay the Taxes. As the landlord agrees that the tenant shall have quiet enjoyment of the premises it becomes his duty to pay the taxes and lawful assessments in order 246 MANUAL OP THE LAW. that the tenant's possession may not be disturbed ; and if the ten- ant is obliged to pay out money for this purpose to protect his quiet possession he may deduct it from the rent due. It is not unusual for the tenant to agree in the lease that he will pay the taxes; in which case, as in any other, where the tenant agrees to assume part of the landlord's duties, he must do so. The duties here referred to are those which the law imposes in the absence of an agreement by the parties. A tenant for life, however, is bound to pay the taxes. 5. The Rule as to Repairs. As to repairs, -the rule is that unless the landlord binds himself by an agreement to make them, the burden of repairing will fall upon the tenant, and if the prem- ises get out of repair, or even burn down, the rent may be col- lected by the landlord. Even if they were insured in favor of the landlord the tenant can not compel him to use the insurance money for rebuilding. The statute of some of the States, including New York, have changed this rule, and have provided that the land- lord must keep the premises in repair, but there is no such pro- vision in Michigan. As in other cases the parties may make such agreements in their leases respecting repairs as they may see fit. And if the landlord assumes the duty, and fails to perform it, it is said that the tenant may deduct from his rent as much as he has been compelled to pay out for such repairs as the landlord agreed to make. In order, however, to do this he must have given due notice to the landlord of the necessity for the repairs. Where the tenant specially covenants to repair, he is obliged to do so, even to the extent of rebuilding the buildings should they burn down, and he is in any event required to repair such defects as are occasioned by his own negligence, and to return the premises at the expiration of the lease in as good a condition as he received them, ordinary wear and tear excepted. In making a lease, the parties should come to a definite understanding regarding this matter of repairs, and should have the agreement concerning it fully written out in the lease. 6. Repairs of Farm Property. In the case of agricultural leases the tenant's duty to repair extends only to the dwelling house. In the absence of any agreement, or any local statute upon the subject, the tenant must keep the house in repair, but is not obliged to repair the barns, stables, other buildings, nor fences. Of course he must use the farm in a husband-like manner, and LANDLORD AND TENANT. 247 must repair the damage resulting from his not doing so, but that is all. The importance of this subject of repairs rests largely in the fact that if an innocent per-^on is injured by reason of the fail- ure to repair the premises, a liability for such injury rests upon the person whose duty it was to repair. If, for example, a tenant fails to repair a warehouse, or store, or other building he had rented, and they should fall down, or a chimney should topple over, and a passer-by should be injured, the tenant might be linblc for the injury unless the landlord had agreed to repair. 7. Repair of Fences. As stated, the obligation to repair the out-buildings and fences of a farm rests with the landlord ; but with respect to division fences the statutes of Michigan and other States provide that the respective occupants of adjoining lands shall maintain the division fence between them in equal shares so long as both parties continue to improve the land. If the occupant hap- pens to be a tenant this obligation will fall upon him. As an occupant he will have to build his share of the fence, but he will have a claim upon his landlord for the expense thereof if there is no agreement in the lease that he shall maintain the fences. 8. The Tenant's Duties. The tenant of farm property usu- ally agrees in his lease as to the manner in which he shall use the farm, the course of cropping, the amount of manure, the num- ber and kind of stock to be fed there, etc. All this is generally provided for in the lease itself, but if nothing has been said con- cerning this the tenant impliedly promises upon taking the farm to use it in a husbandlike manner. As to what is a " husbandlike" use of land depends upon the custom of the community, character of the land, etc. It is such a use of land as a good, prudent farmer would put his own land to. In Dakota a husbandlike use of land might permit its being sown to wheat continuously for a series of years, in New York three, or even two, continuous crops might be considered as wasteful of the land's fertilities. The tenant must not commit waste, as was fully explained in the chapter upon that subject, see page 138. He must pay the rent provided for in his lease, promptly and strictly in accordance with his agreement. No accident to the property or misfortune to himself will relieve him from this obligation. Though the land should be rendered useless by unavoidable accident of fire, or flood, or tempest, or the invasion of the public enemy, he will still be liable upon his promise to pay the rent. Every tenant should therefore 18 248 MANUAL OF THE LAW. provide in his lease for a suspension of the rent during the time the premises are untenable by reason of any of these causes. The only thing which will relieve the tenant from this duty is his being evicted or put out by some one having a superior title, or having his quiet enjoyment of the premises molested through the fault of the landlord. An agreement is sometimes inserted in the lease that the tenant shall insure the premises. • Without such an agree- ment he is under no obligation to procure insurance, though it might be prudent for him to do so for his own protection. The tenant often agrees in the lease not to assign or sub-let the prem- ises without permission of the landlord. In the absence of such an agreement he may do so, but he will still be liable for the pay- ment of the rent if the sub-tenant does not pay it. It is the ten- ant's duty also to put the premises only to the uses contemplated by the letting. It is customary to insert special agreements as to this. In the absence of any such agreements the tenant may put the premises to any use in keeping with the general object of the letting, but if he should put them to any other use, or to any illegal or immoral use, it will have the effect of terminating his lease. 9. What Alterations the Tenant May Make. The tenant has no right to make any unwarranted alterations in the premises, or to change or to add to them in any manner which will injure the landlord, but he may put such new structures, or improve- ments, on the property as his business may demand, provided he does nothing to injure or impair the value of the premises. A farm tenant may make such slight changes in the way of fencing, or putting up barns or sheds, as his needs may require, but he could not pull down a building because he had no use for it, or because it was in his way, or meddle in any other manner with the existing state of things so as to permanently change the nature of the property, or make it impossible for him to restore the prem- ises to their original condition at the expiration of the lease. 10. Collecting Rent. The old method of collecting rent where it was not paid when due was by distress. By this pro- cedure a landlord seized the tenant's chattels, or goods of any kind, and held them for a specified time; if the rent remained unpaid he then sold them and applied the proceeds in payment of the debt. This method has been abolished by statutes in Michigan and in most of the States, though it still, in effect, exists in some of LANDLOED AND TENANT. 249 the New England and eastern States. The modern tendency is to place a rent debt on the same footing as other debts, and to pro- vide only those methods for collection that are applicable to all debts. In Michigan the statute provides that if the tenant neg- lects or refuses, for seven days, after demand for possession of the premises, made in writing, to deliver up the possession of the premises or to pay the rent due, the landlord may recover the pos- session of the premises and judgment for the rent dje in an action before a circuit court commissioner. 11. Landlord's Title Can Not toe Disputed toy the Tenant. When a person rents property from another he recognizes such other as his landlord and he is precluded from disputing the title. This rule is rigidly enforced and it extends to a tenant who holds over after his time has expired, as well as to all under tenants, assignees, and all other persons claiming under the lease. 12. Tenant Must Guard the Property. A tenant of farm- ing lands is bound to protect the property from injury the same as though it were his own. While he is not an insurer against casualities, he still agrees to exercise that care over the property which a prudent man would over his own. The landlord having no control over the premises himself may look to his tenant to make good all injuries to the premises, whether those injuries were caused by the negligence of the tenant or by a stranger. In fact the only injuries to the premises which the tenant is not liable for are those which result from the act of God, like storms or floods, by the acts of the public enemies, or of ordinary wear and tear. 13. What the Tenant May ReniOTe. When the tenancy has expired and the tenant i^ about to move away, he may take with him certain fixtures which he could not remove if he were the owner and had recently sold the land. In the chapter on fixtures it was explained that anythmg so fastened to the soil as to become a fixture was regarded in law as a part of the soil, and could not be removed by the seller on a sale of the premises. It was there also explained that, as between landlord and tenant those fixtures which were put in by the tenant for the purpose of ena- bling him to carry on a trade might be removed. The privilege, however, has not been extended to the tenants of farm lands to remove those fixtures which have been erected for agricultural purposes. It is difficult to perceive why farm tenants should not be upon the same footing with trade tenants, but the distinction 35° MANUAL OF THE LAW. has existed, though the tendency of late years has heen to ignore it. (Taylor's L. & T., § 548.) 14:. The Termination of a Tenancy. When a lease has expired, the lessee, if he does not remove from the premises, becomes a tenant at will, and his right to possession can not be cut off except by " notice to quit." If he has been a tenant from year to year the law will imply, in the absence of an express agreement, that the parties have renewed the previous agreement for at least another year. In this and in all cases where the tenancy is for an indefinite time, a " notice to quit " is necessary. This notice, the length of time that it must be given, the manner of giving it, etc., is provided for by the statutes of the several States. 15. Rule in Michigan. In Michigan whenever an occupant, after his right has ended, continues to hold by consent of the owner, he is a tenant at will. All the tenancies at will may be terminated by a three months' notice, and the same for tenancies at sufferance. The notice to quit may be served upon the lessee or upon any person holding under him. The notice should simply state that the premises are demanded and that the tenant must remove. A tenant wrongfully holding over for a short time is not thereby entitled to a three months' notice to quit. It is only when the occupant holding over has some equities or rights which would render it unjust to require him to remove immediately, that the law gives a right to a three months' notice, (40 Mich., 285.) CHAPTER XXXI. RAISING CROPS ON SHARES. i. tavming on Shares is Not Leas- 3. The Duties of the Grop- ing. Grower. 2. The Cropper on Shares is Not m 4. How the Crops Shall ba Laborer for Hire. Divided. It is not uncommon in many parts of the country to farm land on shares ; the owner of the land receiving a portion of the crop and the farmer the balance. When the relations of these parties are not such as to make them landlord and tenant there are certain mutual rights and duties which require notice here. 1. Farming on Shares is not Leasing. When a person lets out his land on shares for the purpose of having a crop raised it does not amount to a leasing of the land. The owner still retains possession, subject to the right of the other party to enter for the purpose of carrying out his contract. So soon as the crop is raised and harvested, the right of the cropper to enter ceases.- When the crop upon one portion of the land is harvested the right of the cropper to enter upon that por- tion ceases, though he still has the right to enter upon the other portion. (47 111., 344.) The relation of landlord and tenant does not arise unless the person growing the crop is given the exclusive possession of the land and pays for it by a portion of the crop. The distinction is a rather fine one, yet it is important. The intention of the parties will govern the matter, if the owner simply intends to allow another person to raise a crop upon his land, and does not contemplate giving up the full possession and control of the land, there will be no tenancy created. Pae parties to a contract for raising^ crops on shares are tenants !^5' MANtJAL OF THE LAW. in common of the crop while it is growing. Either party may at any time sell his interest in the crop as he might sell any other chattel, and it may be seized on legal process unless growing crops are exempt from seizure. 2. The Cropper on Shares is not a Laborer for Hire. Nor is one who farms on shares a laborer who receives for his hire a portion of the crop and the amount of his wages depending on his own industry. The law regards him as a contractor hav- ing full control of his own labor, and not being in any way under the orders of a master. (49 Ga., 581.) If he does hot attend to his work he may be liable for breach of his contract, but not as a servant who neglects his duty. 3. The Duties of the Crop-Grower. When a crop is grown on shares the owner of the land and the cropper, being tenants in common of the crop, are each entitled to go upon the land, but the technical possession of the crop, so far as its care, culture, and protection are concerned, is in the cropper. (17 Cal., 542.) The cropper must farm in a good, workmanlike manner, and if noth- ing is said upon this point in the contract he must pursue the methods customary in the vicinity. (33 Iowa, 24.) 4r. How the Crop Shall be Divided. The contract should specify definitely the respective shares that each shall have in the crop when it is divided, the method of dividing it, the time and place of delivery, etc., but if the contract is silent upon all these points, the land being simply " let upon shares," the parties will be held to have contracted with reference to the custom of the neighborhood in this regard, and they will be bound by that cus- tom in these particulars. (40 Ga,, 511.) CHAPTER XXXII. ARBITRATION AND AWARD, I. How to Proceed by Arbitration. 4. The Award. a. Arbitration Bond. 5. Statutory Arbitration. 3. Duties of Arbitrators. 6. The Method in Michigan, The law favors any method by which persons may settle their own disputes. If persons can not agree between themselves as to the settlement of any difference between them, it is lawful, proper, and commendable to refer it to arbitrators, and if properly so referred the parties will be bound as firmly by the decision of such arbitrators as by the result of a suit at law. Settling a matter in dispute in this manner is called an arbitration, the finding or the determination of the arbitrators is called the award. 1. How to Proceed Iby Arbitration. Having agreed to refer matters to arbitrators, the first step will be to reduce such agree- ment to writing; this is called an agreement of submission. It should state the names of the arbitrators selected by each party, »nd how they are to settle points upon which they are unable to agree. This may be done by empowering them to call in another person, chosen by themselves, or to choose an umpire to act in their stead when they fail to agree. It should distinctly and definitely set forth the particular controversies desired to be settled, and how and by whom the expenses of the abitration are to be met. If this latter point is not set forth the arbitrators are entitled to look to the prevailing party to pay them the same fees that are allowed to referees in courts of record. An agreement to arbitrate may be revoked by either party at any time before an award is made. Death of cither party previous to the award works a revocation. 254 MANtTAL VV THE LAW. 2. Arbitration Bond. The agreement of submission should be supplemented by an arbitration bond, executed by each party, and delivered to the other after the manner set forth in the form. (See Part III.) If no bonds are given the arbitration is still binding, though if the failing party is irresponsible there might be difficulty in enforcing the award. 3. Duties of Arbitrators. The arbitrators must strictly con- fine themselves within the powers conferred by the submission. Only the precise controversy submitted to them should be deter- mined. If the award goes farther it will be void, unless the portion which exceeds the submission can be separated without affecting the merits of the rest, in which case that portion only will be void. The arbitrators must appoint a time and place for the hearing, must take the proper oath before the proper officer before pro- ceeding to take testimony, and must proceed in all matters in accordance with the local statute upon the subject. All the arbi- trators must meet and hear the allegations and proofs of the par- ties. They may compel the attendance of witnesses, usually by summons from a justice of the peace. 4. Tlie Award. The award or finding of the arbitrators should state clearly and distinctly the determination arrived at. It should settle all the matters submitted to the arbitrators, and be complete and final so as to terminate the controversy. It should be signed and sealed in duplicate and delivered to each party. 6. Statutory Arbitration. The statutes of most of the States have regulated this matter of arbitration and award, and have provided that the award may be brought into court and judg- ment entered thereon. It will be best to follow the statutory method where one is provided, though if it is not followed the proceeding would still be valid and binding in most States, though no judgment can be entered on the award. 6. Method in Miclligan. In Michigan all disputes, excepting those afTecting the title to real estate, may be referred to and set- tled by arbitrators. And a claim to an interest in lands for a term of years, or for a year or less, as well as controversies respecting the partition of land between tenants in common, or concerning the boundaries of lands, may also be submitted to arbitration. The agreement to arbitrate must be acknowledged the same as a deed. The arbitrators must appoint & definite time, as well at « AEBITEATION AND AWARD. 255 place of hearing. The arbitrators must be sworn to faithfully hear and examine the matter in controversy. They have power to administer oaths to witnesses. The witnesses may be com- pelled to appear by subpcsna issued by any justice of the peace. An award made by a majority of the arbitrators is valid, unless the submission required the concurrence of all of them. If the award is not paid or complied with it may be filed with the clerk of the court, designated in the submission, any time within a year after the making of it. Such award may be affirmed by an order in open court, unless it be vacated or modified. It may be vacated upon the ground 1. That it was procured by fraud or corruption. 2. That there was evident partiality shown by the arbitrators. 3. That the arbitrators were guilty of misconduct in refusing to postpone the hearing on sufficient cause shown, or refusing to hear material evidence, or in any other way prejudicing the rights of a party. 4. That the arbitrators exceeded their powers, or imperfectly executed them, or made an award that was not mutual, final, and definite. The award may be modified by the court 1. When there is a miscalculation of figures, or mistake in the description of a person or property. 2. When the arbitrators have awarded upon a matter not sub- mitted to them. 3. When the award is imperfect in matter of form not affecting the merits. When an award is affirmed or modified the court renders judg- ment in favor of the party to whom the award was given. If the award was a sum of money, or damages, the judgment is that he recover the same. If it ordered any act to be done, the judgment is that the act be done according to the order. Neither party has power to revoke a submission made under the statute without the consent of the other, and if either party fails to appear before the arbitrators after notice, they may deter- mine the matter upon the evidence produced by the «»ther party. See Howell's Statutes, §§ 8474-8496. CHAPTER XXXIII. THE DESCENT OF REAL PROPERTT. In the preceding chapters the rights and duties of the average citizen have been considered specially with reference to the acquire- ment and use of land. It will now be interesting to examine as to how land may be disposed of, and particularly to see just what will become of a man's property when he dies. With respect to the sale of land, what was said early in the book in Chapter III in regard to the purchase of it will be equally applicable, but the descent, or inheritance, of real property remains to be more fully considered. 1. The Common Law as to Descent. By the English com- mon law all of the landed property of a person goes, upon his death, to his oldest male child. This is called the law of primo- geniture, and is in force in England at the present time. Not being conformable with the genius of the American people, this law has not been recognized in this country. In a spirit of equal- ity our law seeks to divide property equally among the children or other heirs, where there has been no disposition made of it by will. 2. Statutes of Descent. The common law, as above set forth, not being applicable to this country, it has been necessary in each of the States to enact statutes providing for the descent or inherit- ance of real property. While these statutes are not identical in all their provisions, there is a general similarity in their main features. The following general statement will be found of interest to the casual reader, while those who are specially and personally inter- ested must, for details, examine the statutes of their respective States DESCENT OF KEAL PEOPEBTT. ^57 The rules or canons of descent of real property, as they are in force in the various States, may be set forth substantially as fol- lows: First. If a person dies intestate, that is, without a will, and is possessed of real property, it will go to his children and to the issue of any deceased child, by right of representation, in equal shares. To illustrate: A man dies intestate leaving two children living and three grandchildren, the issue of a third child who is dead. His real property will be divided into three equal shares, each of the two children will take one share, and each of the grandchildren will take a third of the remaining share. Second. When the intestate leaves no living children, if there is issue of deceased children, his real property will go to such issue in proportion to their right of representation. That is to say, such issue will take in equal shares whatever portion their parents would have received if living. To illustrate: A man dies intes- tate leaving one grandchild, the issue of one deceased son, and seven great-grandchildren, the descendents of his only other child, deceased. His real property will go half to the grandchild and half to the seven great-grandchildren by right of representation. Third. If the intestate leaves no issue, then the real property goes to his father. Fourth. If the intestate leaves no issue, and no father, his real property goes to his mother, his brothers and sisters and to the issue of any deceased brothers and sisters. This, however, is not the rule in many of the States, for the husband or wife of the deceased at this juncture is sometimes given a share. Fifth. If the intestate leaves no issue, nor father, nor brother, nor sister, his real property goes all to the mother, or in some States to the mother and widow. Sixth. If the intestate leaves no issue, nor father, nor brother, nor sister, nor widow, his real property will go to the next of kin whoever they may be. • Seventh, If the intestate leaves a widow and no kindred, his real property goes all to the widow, or if the intestate is a married woman and leaves no kindred, her estate goes to the husband. ^ Eighth. If the intestate be a woman, her real property will • To ascertain who is the next of kin is oftentimes a very difiScult matter. In Cooley's Blackstone's Commentaries, book two, page 203, may be found a table of consanguinity with rules for determining title by descent. 258 MANUAL OP THE LAW. descend as above indicated, except in those States which still recognize an « estate by the curtesy," the husband, if a child has been born, takes the rents and profits of the wfiole, or a portion of the property during his life. * Ninth. If the intestate leaves no widow, or husband, and no kindred, then the real property goes to the State. It must be remembered that the foregoing is only an outline of the general provisions respecting the descent of real property in America. It does not attempt to state the law accurately with respect to any single State. 3. The Widow's Right of Dower, The rules of descent of real property are all subject to the widow's right of dower, which is the right to the use of one-third of her deceased husband's real property during the remainder of her life. Under the statutes of all the States she has this right, nor can she be deprived of it except by her own free act. It can not be taken from her by her husband even though he give her other land instead. If he wills her property in lieu of dower, she need not so accept it unless she chooses to do so. If he wills her property and does not specify that it is in lieu of dower, she will take that property and her dower interest beside. But the dower interest is only a life estate, and upon the death of the widow the property goes to the heirs the same as if there had been no widow. Dower does not extend to all the interests in land, of which a man may die possessed. It does not attach to an estate held in joint tenancy, for that goes to the survivor, nor does it attach to partnership lands purchased by partnership funds for partnership purposes. (4 Mete, 537.) A mortgage given for the purchase money of lands, though not joined in by the widow, takes prece- dence of her dower rights (15 Johns., 458), and in some of the States dower will be defeated by a sale of lands on execution for the husband's debts (8 Penn. St., 120; 22 Wend., 498,) and it is generally cut off by a sale of lands for non-payment of taxes. (8 Ohio St., 430.) Likewise, an exercise of the right of eminent domain during the life of the husband will cut off the right of dower though no compensation be made therefor. And the same is true where lands are dedicated by the husband for any public use. (3 Ohio St., 24; 9 N. Y., no.) Upon the death of the hus- *The " married woman's acts," however, have had the efifect of abolisliing the " estate by curtesy " in many of tjie States, as was shown on page l& DESCENT OF REAL PEOPEBTT. »59 band the dower lands are set apart to the widow by commissioners acting under the authority of the probate or surrogate courts. 4. Homestead Laws. These are provisions designed to secure to the widow and minor children of a deceased person the undis- turbed possession of- the homestead during a certain period. They usually provide that the home and an amount of land shall be exempt from execution, and their effect is, in many cases, to set aside, or to hold in abeyance for a time, the laws of descent of property above laid down. 5. Illegitimate Children. A person bom out of wedlock will inherit froni his mother under the foregoing rules of descent, but he is given no share in his putative father's estate. If an illegitimate child die without lawful issue his estate goes to his mother, or if she be dead, it goes to his relatives on his mother's side; but neither the putative father nor the paternal relatives are given any share in the estate. When, after the birth of an illegitimate child, his parents inter- marry, such marriage has the effect of making the child legitimate. And in some States there is a provision that if the father of an illegitimate child shall, by writing, in due form acknowledge such child to be his own, such child shall be considered legitimate and shall inherit from the father under the rules of descent the same as though he were born in lawful wedlock. Posthumous children are considered as living at the death of their parents, and inherit property accordingly. 6. Adyancements. When property has been given to any child or other descendent by the intestate during his lifetime, and the intention was to make such gift an advancement in whole or in part of the share such child or descendent would otherwise receive, then such gift must be deducted, on the death of the intes- tate, from the share of such child or descendent. It must be made clearly manifest, however, that the gift was intended as an advancement or this rule will not apply. If the amount of the advancement exceeds the share that the heir would otherwise have received, he is not required to refund any portion of it, he simply is excluded from any further share. If the advancement is less than his share, he is entitled to as much more as will give him his full share of the estate of the deceased. All gifts and grants are deemed to be advancements if they are >6o MANUilL OF THE LAW. SO expressed in the deeds making them, or if they are charged in writing by the intestate as advancements, or if they are acknowledged as such by the ciiild or descendant receiving them.* *Tlie Michigan reader is referred to Chapter 219, ol Howell'* Compiled Statutes, conuuencing on page 1503. CHAPTER XXXIV. THE DISTRIBUTION OF PERSONAL PROPERTT. I, Administration of Estates. 3. Distribution of Residue. a. Payment of Debts. 4. Is Administration Necessary. In the preceding chapter we have seen how the real property of an intestate is disposed of among the heirs by the operation of the statutes of descent. It remains to consider what will become of the personal property of one dying without a will. 1. Administration of Estates. The law provides for the administration of the personal property of an intestate by proceed- ings in the probate court. A petition for administration is pre- sented to the court, and upon the appointment of an administrator the title to all the personal property vests in him, and such prop- erty is by him disposed of as the law directs. 2. Payment of Debts. The administrator, out of the per- sonal estate, must first pay the debts of the deceased. These take precedence over all other claims and must be first discharged. The residue is then distributed by the administrator to whoever is designated by the statutes as being entitled thereto. 3. Distribution of Residue. In general it may be said that the residue of the personal property of an intestate is distributed to about the same persons and in about the same proportion* as is real property under the statutes of descent, as set forth in the pre- ceding chapter. The statutes of distribution of the various Stateg like the canons of descent, are similar, but not identical, in all their provisions. A striking difference between the statutes of descent and the 19 »<53 MANUAL OF THE LAW. statutes of distribution is that while under the former the widow takes, during her lifetime, the right merely to use one-third of the real property, under the latter she takes the full title to one-third of the personal property. If there be no issue the widow takes generally one-half, and in some of the States the whole of the personal property. But the detailed provisions of any particular State can only be learned by an examination of its statutes, (i.) 4. Is Administration Necessary. If a man dies leaving but a small estate and having no debts, and there is no question as to who is entitled to his property under the law, the question may arise whether it is necessary or important that his estate be admin- istered upon by the probate court. The proceeding involves some trouble, expense, and delay, and it is often dispensed with under such circumstances. But it is safe to say that in almost all cases it is better that these proceedings be had. The advantageous results of the probate proceedings are that the title to the property is fixed in the legitimate heirs beyond any peradventure, and that all claims which are not presented within a given time during the proceedings are forever barred and cut off, thus giving the heir a possession and ownership which can never be disputed. These steps having been taken there is no obstacle in the way of selling the property, for the most careful buyer need not doubt the title, and need have no fears that at any future time some creditor of the deceased may come forward and establish his right. This security of title results from the fact that all persons, (l.) The following is the provision of the Michigan statute relating to the dis- tribution of personal property : " The residue, if any, of the personal estate shall be distributed as follows : One- third thereof to the widow of the deceased, and the remaining two-thirds to his children, or the issue of any deceased child or children, if any there be, except that if there be but one child, or the issue of such child, living, then to the widow one-half of such residue, and such child, or the issue thereof, the other half; in case the deceased shall leave a widow and no children, or the issue of a deceased child him surviving, th'in such residue, if it shall not exceed the sum of one thou- sand dollars, shall go to such m idow, and if it exceed the sum of one thousand dol- lars, such excess shall be distributed one-half to such widow, and the other half to the father of the deceased, if living ; if not, such other half shall be distributed equally to the mother, and the brother, and sisters, and the issue of any deceased brother or sister in equal proportions, share and share alike ; and if there shall be neither father, nor mother, nor brother, nor sister, nor issue of such brother or sis- ter surviving, then such residue shall go to the widow ; in any other case the resi- due, if any, of the personal estate shall be distributed in the same proportions and to the same persons, and for the same purposes as prescribed for the descenl *Bd disposition of the real estate." See Howell's Statutes, Sep. 5S47. DISTEIBT3TI0N OF PKESONAL PEOPEKTY. 263 whether heirs or creditors, are bound to take note of the proceed- ings in the probate court, and to establish their claims during those proceedings, or not at all. It may be remarked before leaving this subject, that while the law of the place where the land lies governs the manner of its descent, the law of the place where the deceased lived governs the distribution of the personal property. CHAPTER XXXV. OF WILLS. 1. Ways of Disposing of Property 7. Avoiding » Win. at Death. 8. Form and Requisites of WUU, 2. Definition of a Will. 9. Signing the Will. 3. Common Law as to Wills. 10. Witnessing the Will. 4. Statutes on the Subject. II. Form of Attestation. 5. Kinds of Wills. 12. Codicils. 6. Who May Make a Will. 13. Rerocation of Will. We have seen what disposition the law will make of a person'i property if he dies without leaving a will. If he is not satisfied with that disposition, he has, if he is of sound mind and dispoiing memory, full power to change it in any way he sees fit. 1. Ways of Disposing of Property at Beatk. The owner of property can provide for its disposition at his death in three ways: 1. By deed, to take effect at his death. 2. By gift made in apprehension of immediate death. (But this applies only to personal property.) 3. By will. The first two methods are not in very common use. The law applicable to them does not differ materially from that governing the general subject of deeds and gifts. A deed to take effect at death differs only from a common deed in that it does not take effect till death. A gift made in apprehension of death differs from an ordinary gift only in this particular, that the recovery of the donor trom the threatened death revokes the gift. But the method by will is the safest and best way of disposing of property OF WILLS. 265 at death; because a deed fetters one's property while he is still living as it in effect disposes of it at once, and where a gift is made, all is left to verbal proof and everything is involved in uncertainty. Where it is possible, therefore, a will should always be made, unless one wishes his property to take the course prescribed by law, and even then it is desirable in many cases. 2. Definition of a Will. A will is defined to be ««the dispo sition of one's property to take effect after death." The dispo- sition by deed above referred to takes effect at once, so that the grantor cannot revoke it, though the possession of the grantee iif postponed till the grantor's death. The disposition by gift alse takes effect at once, but is liable to be revoked by the grantor'r recovery. 3. Common Law as to Wills. According to the principles 0/ Ihe common law, only personal property could be disposed of bj wilL The real estate went to the heir-at-law, no matter what the wishes of its owner might be. 4. Statutes on the Subject. The common law provision respecting wills being obviously not in harmony with the Ameri- can spirit, has been supplanted by statutes in the several States, which provide in the main that a man may do practically whatever he wishes with his property, and which regulate with more or less detail the whole matter of making wills. To determine, therefore, the exact formalities for the execution of a will, one must look to the statutes of the State in which the will is to be enforced. 6. Kinds of Wills. Wills are either written, or unwritten. An unwritten will should never be used if it is possible to ma'ke a written one, for such an instrument is even more uncertain than a verbal gift of property, for its validity depends not upon any act of the testator, but merely upon what he said. At common law an unwritten will was as valid as a written one, and could be used for all purposes that written wills could. But the statutes of the American States limit this privilege to those cases where death is «o imminent as to prevent the making of a written will. 6. Who May Make a Will. In general, a person in order to make a valid will must possess — ist, full age; 2nd, freedom of action, and 3rd, a sound mind. By full age is meant the age required by statute, which is usually twenty-one years. ^^S MANUAL OF THE LAW. By freedom of action is meant that the will must be the will of the testator, and not simply the registering or writing out by him of the will of some one else. If the will is the result either of physical or moral compulsion it cannot be allowed to stand. The mere fact, however, that suggestions were made and acted on, or that solicitations were yielded to, does not avoid the will. The testator has a perfect right to act on suggestions and to yield to solicitations. The question in all such cases is, did he act himself or was he the mere tool in the hands of another, in short, is it his will? By " sound mind and disposing memory," is meant the possession of sufficient intelligence to act understandingly, A less degree of intelligence is required to make a will than is required to make a valid contract. To make a binding contract the mind must be sufficiently strong to cope with another intellect. To make a valid will the mind need be only strong enough to understand the property to be given, and to know its own desires as to who shall have that property. In making a contract the weaker mind is the prey of the stronger; in making a will there is presumed to be no strong mind ready to take such advantage. Among persons not possessed of sound minds may be mentioned idiots, drunkards, and insane persons. By idiots is meant persons entirely devoid of understanding. Persons may have weak minds and still be able to make wills. If they have some memory and a general knowledge of their property and a tolerably clear desire as to who shall have it, that is sufficient. Drunkards need no definition. As to whether their wills shall stand depends upon whether, at the time they were made, the testators possessed sufficient power and understanding to control their actions. The wills themselves, both in the case of idiots and drunkards, might throw much light upon the question of their validity. By insane persons is meant persons in such an abnormal con- dition of mind that the reason is either partially or wholly incapa- ble of performing its functions. Insane persons are subject to delusions, either permanent or temporary, which may or may not affect their conduct. These delusions may extend to one or to all subjects. There is no rule by which one's sanity may be easily tested. One may be so clearly insane that everybody will know it. Another may be equally insane on some single subject and his Of WILLS. 267 most intimate friends may never suspect it. Hence it sometimes happens that a community will be about equally divided on the question of the sanity of one of its principal members; each basing his views on what he has seen. It is not evidence of insanity that a man is odd or queer, or that he holds views at variance with the prevailing ones. Insanity is more than an error in judgment. It is a whole or partial dethrone- ment of the reason. And there is really no single test that can determine its presence. Those who call themselves experts upon the subject unfortunately have done much to bring their calling into contempt. The readiness and ability with which they testify for the party who employs them, and the hopeless contradictions of each other in which they invariably become involved, has cast suspicion on all expert testimony on this subject. The superior opportunities of friends and neighbors to form an accurate judg- ment has inclined the Courts to attach more weight to their testi- mony than to that of experts. The every day ordinary life of a man affords really the best means of determining his sanity. 7. ATOiding a Will. When it is sought to set aside a will, some cause legally sufficient to invalidate it must be alleged, and it must be shown that such cause operated in the making of the will. For instance, tomvoid a will because of the insanity of its maker, it must not only appear that the testator was insane, but that his insanity affected the will. Now, the ordinary condition of insanity is a partial and not a complete dethronement of the reason. The evidence may show that the testator was insane only on one sub- ject, or that he was insane only a part of the time. In the former case the will would be valid if th«i subject on which the testator was insane did not influence his will. In the latter it would be valid if made during a "lucid interval" or period of sanity. Here, as in the case of persons of weak minds, the will itself will be important as determining whether the insanity of the testator had any thing to do with its being made. But it is not in keeping with our purpose to go fully into this matter of avoiding wills. 8. Form and Requisites of Wills. It is a difficult thing to make an unobjectionable will. As a rule, good trustworthy legal assistance should always be secured before attempting it. But if one is called upon to make his own will, or the will of a neighbor, under circumstances which will not admit of delay, the following^ may be of service: 268 MANUAL OF THE LAW. The will must ist, be written; 2nd, it must be signed, and 3rd, it must be witnessed. It may be written either with pencil or ink. Generally no par- ticular form or arrangement of words is necessary. If the instru- ment clearly indicates the testator's desires it will be sufficient. It will be well for the testator to state at the beginning that it is his last will. The appended forms illustrate this. In the body of the will the testator should express his wishes just as accurately and simply as possible, and he had better dispose of his property in as simple and plain a way as he can, and not attempt any complications, like the creating of trusts, etc., unless he has the services of a good lawyer in drawing his will. There are certain words used in wills which have a peculiar legal significance. " Bequeath" applies only to personal property; " devise " applies only to real estate. If this expression is used, " I give, bequeath, and devise my estate and property as follows: that is to say," (and then state plainly what shall be done with each piece of property or sum of money) it will be safe and sufficient. Words of inheritance should be used in any devise of land, as was explained in the Chapter on Real Estate, page 13; that is to say the expression " and his heirs " should follow the name of every person to whom land is given, unless it is desired to give simply a life estate. • If the testator has children, and does not provide for them or make any mention of them in his will, the law presumes they were forgotten; and it generally, in such cases, gives them the same share they would have received if there were no will. If the children have been provided for by " advancements " during the lifetime of the testator, that fact should be stated in the will. The testator should always name his executor, though the will is good without it, as the court will appoint an " administrator with the will annexed." 9. Slirning^ the Will. By signing is meant the attestation of the instrument by the testator's name. If the name is put any- where on the instrument, with the intent of signing, it will be a good signature, unless the statute requires the name to be signed in some particular place. If the testator is unable to write he may sign with a mark, or his hand may be guided by another. The following attestation clause is generally and very properly used: " (a witness whereof I have hereunto signed and sealed this instru- OF WILLS. 369 ment, and published and declared the same as my last will at .... on the .... day of . . . ., 1885." Then follows the signature. No seal is required. 10. Witnessing thft Will. There are three reasons why a will should be witnessed, ist, That the instrument may be iden- tified. 2d, That there may be evidence on the instrument of its proper execution, and 3d, That there may be persons designated who can testify as to the testator's condition, and as to his compli- ance with requisite formalities. The will should be witnessed in the testator's presence, and by presence is meant both physical and mental presence. That is it must be when the testator can see the act done, and the testator must have such a control of his faculties as to know what is going on. The witnesses should be persons who are competent to tes- tify. They should not be persons who are to receive anything under the will. At common law a will so witnessed was void. Under our statutes such wills are valid, but the witnesses can not receive their legacies. They should be requested, either actually or impliedly, by the testator to sign as witnesses. They need not see the testator sign the will, nor need they read the will, but they should know, either by his statements or conduct, that he has signed it and that the instrument is his will. Care should be exer- cised in the selection of witnesses, for if any question arises as to the testator's sanity, or anything of the kind, their evidence is first to be taken and is very important. Two subscribing wit- nesses are usually required, and in some States three are required. It will be best in all cases to have three disinterested persons sign the will as witnesses. 1 1. Form of Attestation. Over the witnesses' names should be written their attestation, no particular form of words is required for this, but the following will be found a safe guide: "On this day of , 188 — , the »bove named rigned and sealed this instrument, and published and declared the same to be his last will ; and we, the undersigned, in his presence and at his request, and in the presence of each other, have hereunto subscribed our names as witnesses." All the statutory requirements respecting the execution of wills should be carefully complied with. A failure in this regard may render the will void, (i.) 12. Codicils. A will may be changed whenever the testator (l.) The Michigan reader should consult chapter 220 of Howell's Statute*. 27<^ MANUAL OF THE LAW, desires. It may be done by adding what is called a " codicil," or it may be done by revoking the will. A codicil is really a little additional will, not revoking but only varying the former will in some way. It must be executed with the same formalities as the will itself. There can usually be but one will in force, and that is the last one; but there maybe any number of codicils, and all valid. The changes made by a codicil in the will, or in former codicils, should be very clearly and distinctly stated, and it will be well always to state that the former will is expressly confirmed except- ing so far as changed by the codicil. If the codicil gives a leg- acy to one who has already received one in the will itself, the cod- icil should state whether the second legacy is given instead of the first, or in addition to it. Codicils are sometimes added to wills for the purpose of stating that some legacy provided for in the will has been given during the lifetime of the testator as an advancement, 13. Revocation of Wills. Wills may be revoked in several ways, as follows: ist. By an instrument executed for that express purpose. This instrument should be of the same nature as the will, and must be executed in the same manner, 2d, By making a sub- sequent will inconsistent with the former one. So far as the later will is inconsistent with the earlier one it revokes the earlier one. But the earlier one will stand so far as it is not inconsistent, unless there is a clause, as there usually is in the later one, expressly revoking the former one. It is well to make every will complete in itself so that it will provide for an entire distribution of the tes- tator's property, and to insert in it a clause revoking all former wills, 3d. By a destruction of the will. This, in order to oper- ate as a revocation of the will, must be intended to have that effect. Tearing off the name of the testator is said to be suffi- cient, but it is safest to completely destroy the will, as by burning it. If a mutilated will is found among the papers of the testator the presumption is that it was mutilated with the intent of destroy- ing and revoking it. If such a will is found elsewhere the pre- -sumption is that it is still a good will. But the matter in both cases is to be determined by proof, 4th, By a change in the ch- cumstances of the testator. If the will disposes of a specific piece of property and the testator before his death sells or makes some other disposition of that property, such fact revokes that part of the will, 5th. By operation of law. If, after making a will, the OP WILLS. 371 testator marries and has a child, such fact revokes the will. The testator must make another will after the birth of his child if he wishes it to stand. Or if the testator wills away property which his widow may claim as dower, or if he leaves her nothing in lieu of dower, she may still claim her dower right, and that will in part at least revoke the will. So likewise if the testator makes no pro- vision for his children, or makes no mention of some one child, such child may claim the share that he would have received had there been no will, and thus the will may be in part revoked. The forms of wills given in the concluding portion of the book are of a simple nature and may be followed with safety in the majority of cases; but where it is desired to create trust estates, remainders, executory devises, etc., the aid of a competent lawyer shoula always be secured. CHAPTER XXXVI. EXECUTORS AND ADMINISTRATORS. t. Duties of Executora. S. Payment of Debts. 2. Duties of Administraton. 6. Commissioners on Claimt. 3. Inventory of Assets. 7. Distribution of Assets. 4. Appraisers. 8. The Probate Court Many persons who are not lawyers are called upon to act either as executors of wills or as administrators of the estates of deceased persons; and in closing this portion of this book it seems well to give some direction to those who are thus entrusted by their friends with the settling of estates. 1. Duties of Executor, An executor is a person named in the will of a deceased pei-son as the one who is to execute the will and settle his or her estate. There may be more than one execu- tor, and any one who is competent to make a will is legally quali- fied to be an executor. If the will does not name an executor, or the one named will not act, or he dies or resigns, the Court appoints one who is then called the " administrator with the will annexed." Usually the husband of a deceased wife or the wife of a deceased husband, and after them the next of kin in the order of relationship, has the right to be so appointed ; but the Court has discretion in the matter and will not make the appointment unless it seems best. The executor is the personal representative of the deceased, and in him is vested, immediately upon the death of the person making the will, the title to all the personal property of the deceased, for the purpose of discharging his liabilities, fulfilling his contracts, if they are of such a nature that they can be carried out, and of exe- EXECUTORS AND ADMINISTBA.TOBS. 373 curing the will in every particular so far as possible. He is liable only 80 far as the means or assets in his hands extend, and does not become personally liable except upon hig written promise to that effect, duly signed by him. As soon as the will is proved and allowed, the Court issues to the person who is named in it as executor " letters testanientary," if he is competent and can give the required bond. A bond is required usually in all cases, even if the testator specially directs in his will that no bond be given, though in this case the penalty of the bond is made merely nominal, otherwise it is put at about twice the amount of the property involred. The bond is con- ditional on the faithful discharge of the duties of the office. These duties of the executor may, in a general way, be stated as follows : First. To see that the deceased is buried in a suitable manner. Unreasonable expense must be avoided, and if the estate is insol- vent, the amount to be so expended is sometimes limited by stat- ute. (14 Serg. & R., 64.) Second. To offer the will for probate within a reasonable time. In proving the will, filing his bond, giving notices, making and returning inventories, etc., the executor must conform to the laws of his State and the rules of the Court. The Clerk of the Court will generally give him full instructions upon all these points. Tfiird. To make and return to the Court within the required time a true and perfect inventory of all the goods, chattels, rights, credits, and estate of the deceased, which, shall come to his posses- sion or knowledge. Fourth. To collect all the property of the estate of whatever nature, pay the just and legal debts in their proper order (sec page 275), and dispose of the remainder as the will directs. Fifth, To render a true account to the Court within the required time, and at any other time when so directed by the Court. Directions will be given at the Probate Office as to the manner and form of making the account. If the executor dies before closing the estate his executor has no authority over the first estate. An administrator, with the will annexed, must be appointed. 2. Duties of Administrator. An administrator is a person authorized by the court to manage and distribute the estate of an intestate or one who has died without leaving a will. He derives all his authority from the court, but his duties arc substantially the 274 MANUAL OP THE LAW. same as those of an executor, except that instead of disposing of the residue of the estate after the debts are paid as the will directs, he must distribute it as the law requires. He has no will to guide him unless he is an administrator with the will annexed. Ordi- narily tlie same persons are appointed general administrators as are appointed " with the will annexed," and in the same order, namely: ist. The husband or wife of the deceased. 2d. The next of kin; and 3d. The creditors of the estate, the largest cred- itor taking precedence. But the court need not appoint any one of these unless he is competent. The administrator must give a bond the same as an executor, and he must prepare and return an inventory of the estate, collect the assets, pay the debts, distribute the residue, and file an account as required by law. In doing these things he should be guided by the directions given at the probate office; though if the estate is large, or important rights are involved, a good attorney should always be employed to supervise the work. 3 . Inventory of Assets. The executor or administrator must make and return an inventory of the estate. It should contain a full and complete description of all the real estate, goods, chattels, rights and credits of the deceased. Real estate lying in another State need not be inventoried, for that must be administered upon in the State where it lies ; put personal property situated in another State should be inventoried. (38 N. Y., 397.) And the executor or administrator should make diligent search and inquiry for all property belonging to the estate. Produce, growing crops, fruit, and provisions, should be inventoried. Every article of personal property, including animals, should be described separately, except sheep, swine, and poultry. These may be described by lots. Household furniture may be, for convenience, grouped in sets. In describing mortgages, notes, and judgments, give their dates, amounts, rate of interest, names of persons against whom they are held, dates and amounts of indorsements, etc. All the real estate should be accurately described. The descriptions can usually be got from deeds or other papers. If the real estate is incumbered the incumbrances should be fully described. It will be well to procure and attach to the inventory an abstract of title to the real estate. If the deceased was a member of a partnership the surviving partner is entitled to the possession and management of the firm assets for the purpose of selling them and closings the business. BXECUTOKS AND ADMINISTBAT0B8. 275 (27 Mich., 537.) But the administrator may insist that the assets be sold and the business closed. (9 Paige, 178.) 4. Appraisers. After the inventory has been prepared there is generally provision in the several States for having the items composing it appraised by two or more disinterested persons appointed by the court for that purpose. After being duly sworn their duty is to set down opposite each item in the inventory the just value thereof in money. For the purpose of arriving at a fair estimate of the value of assets, the appraisers should examine the same if necessary. They should make their appraisal at what they regard as a fair cash value. The inventory and appraisment, when duly certified, should be returned to the court or to the administrator. A separate inventory and appraisment should usu- ally be made and returned of the household furniture and such Other property as may be allowed the widow under the local stat- ute. Such property is not regarded as assets in the hands of the executor or administrator. 6. Payment of Delbts. The next duty of the executor or administrator, is to pay the debts of the deceased. These are paid out of the personal estate, including the growing crops, fruit, etc., and if not enough can be got from such source to liquidate the indebtedness, a portion or the whole of the real estate may be sold for the purpose, under the direction of the court. The debts must be paid in a certain order; that is to say, certain claims take precedence of others, and must be paid in full, though there are not sufficient assets to pay all. The order of payment of debts is not exactly the same in all the States, hut is substantially as follows: First. Funeral expenses. Second. Expenses of last sickness. Third. Debts due the United States. Fourth. Debts due the State. Fifth. Claims of creditors generally. It should be remarked that if the estate has not sufficient assets to pay all its debts, the executor or administrator should, as soon as he finds such to be the case, report the estate as insolvent to the Court, and thereafter he should follow the requirements of the law of the State and the rules of the Court regarding insolvent estates. 6. Commissioners on Claims. Where the estate is large and there are many debts, 'here is usually a provision for the 27^ MANUAL OF THE LAW. appointment, by the Court, at its discretion, of two or more dis- interested and suitable persons as commissioners, to receive, exam- ine, and adjust the claims of all persons against the estate. The appointment is generally made on the application of the executor or administrator, and it is best for him to have it done, as it relieves hina from much responsibility. The Commissioners may receive instructions from the Court at the time they receive their commission. They are required to give certain notice of the time and place of holding meetings, and they are given a certain length of time in which to hear the claims. Claims that are not presented within the time limited become barred. Six months is the time usually allowed to creditors to pre- sent their claims, though the Court may extend the time if it seems necessary up to two years, after which no claim can be presented. The Commissioners then make and return a report of their doings duly verified. An appeal may be taken from the action of the Commissioners to the Court. Commissioners are paid, out of the estate, usually from two to five dollars per day. 7. Distribution of Assets, Etc. When the report of the Commissioners on Claims is confirmed, and the executor or admin- istrator has paid the claims in the order heretofore given, he then pays the legacies, or distributes the residue, as the case may be, under the direction of the Court. Having done this, he makes and files a final account of his transactions. Notice of the hearing of this account is then given. Any one interested may appear at the hearing and object to its allowance. But if the account is allowed, and no appeal is taken, the executor or administrator is given his discharge, and the estate is closed. 8. The Probate Court. The tribunal having jurisdiction over the estates of deceased persons is generally styled the Probate Court. In some States it is called the Surrogate Court, and in others the Orphan's Court, but its powers are very similar all over the country. It is a purely statutory court and derives all of its powers from the statute. Its judge is generally a county officer and his jurisdiction is limited to the county. It is a court of record and has a seal. Statutes conferring power upon it are to be lib- erally construed. (31 Barb., 544.) Where authority for its action can be reasonably inferred from the language of the statute the authority is regarded as granted ; but where the Court assumes powers not plainly conferred by law its acts are void. (12 Wend. 49»-) PART II. 1. CONCERNING NOTARIES PUBLIC. 8. PARLIAMENTARY PRACTICE. i, GLOSSARY OF LAW TERMS. 20 CHAPTER I. NOTARIES PUBLIC, THEIR DUTIES AND LIABILITIES. I. The Office of Notary Public. 14- The Certificate of Acknowledg. 2. How to get the Office. ment. 3- Qualifying. «S- Rules of Conveyancing. 4- Jurisdiction. i6. Protesting Commercial Paper. S- Duties of a Notary. 17- Protesting Promissory Notes. 6. Liability of a Notary. i8. Days of Grace. 7- Taking Affidavits, '9- Bills of Exchange. 8. The Jurat. 20. Place of Payment. 9- Depositions. 21. Protest, Form of, etc. 10. Administering the Oath. 22. Notice of Protest. II. Acknowledgments. 23- Shipping Protests. 12. Wife's Acknowledgment. 24. Protests as Evidence. '3- Seals. 25- Special Duties of Notaries. 1. The Oiflce of Notary Public is the most common one ol a legal character, as well as the most indispensable one in the com- munity. Hardly any important business transaction can be com- pleted without a notary's aid. In the commercial world his most frequent duty is that in regard to protesting commercial paper. In business and farming communities he is called upon principally to take acknowledgments, administer oaths, and attest written instruments. In rural communities he is often called upon to draw contracts and deeds, or to give legal advice, and he should be at least well qualified to draw such instruments and to see that they are executed accurately and legally. 2. How to Get the Office. No qualification is required as a condition to holding the office of notary public, except that the candidate be of age and able to give the required bond that he will faithfully discharge his duties. The governor of the State makes 38o MANUAL OF THE LAW. the appointment, which, like all executive appointments, must be confirmed by the State senate, if in session. If not in session the appointment holds only till the close of the next session, otherwise the appointment is for four years. Application should be made in writing to the governor, either directly or through a member of the legislature, which latter is the more frequent and better method. The applicant should present his full name carefully written out with his full address, including the county in which he lives. It is discretionary with the governor whether he will grant or refuse the appointment, and if he refuse, even without cause, the applicant has no redress. But it is customary to grant commis- sions to every competent person who may make application. The commission when duly signed is sent to the county clerk for the county in which the applicant resides, who gives notice of its arrival to the appointee. Within twenty days after such notice the applicant must " qualify " or he will forfeit his commission. 3. Qualifying. The process of qualifying consists in taking the required oath of ofSce and giving a bond conditioned on the faithful discharge of the duties and paying the required fee, which in Michigan is one dollar. The oath is to support the Federal and State constitutions and faithfully discharge the duties of the office. The bond is made to the People of the State, usually in the sum of one thousand dollars, and must be signed by the appointee and one or more sureties approved by the clerk. 4:. Jurisdiction. A notary may act in any part of the State, but he must continue to reside in the county for which he was appointed. He forfeits his office by removing to another county. Any records which a notary may have relating to his office, must, upon his resignation or removal from office, be deposited with the clerk of his county, and the executor of any deceased notary must so deposit them within three months after his appointment. 6. Duties of a Notary. We shall briefly go over the princi- pal duties of notaries in the State of Michigan, setting them forth in such plain language as will enable every citizen to discharge the duties creditably and safely. By an act of Congress, notaries are authorized, wherever the federal jurisdiction extends, to exercise the same powers as United States Circuit Court Commissioners in respect to taking affidavits and depositions, and the taking of testi- mony to be used in the United States Courts. In Michigan and many other States they are specifically empowered to administer CONCEKKING NOTARIES PUBLIC. 2^1 oaths and take affidavits in any matter or cause pending or to be commenced or moved into any court of the State, and they are given the pow^ers exercised by notaries under the law of Nations, commercial usage, or the laws of any other State or country. It will be thus seen that the duties and powers of a notary are very important and are by no means the trifling matter they are some- times supposed to be. 6. Liabilities of a Notary, The notary is a ministerial offi- cer. He has no discretionary powers. He is bound to understand his duties and to perform them w^ith diligence and care, and he is liable for any injury that may result from his negligence or mis- conduct in office. Any person who is aggrieved by any delinquency or misconduct of a notary may prosecute him on his official bond. For his willful misdoings he is sometimes. punishable criminally. When we reflect that the value of note or bill often depends upon its proper protest, we see that the responsibilities of a notary may be very large. 7. Taking Affidavits. One of the most common duties of notaries is that of taking affidavits; this they are authorized to do by the statutes of most of the States. The notary should write out the affidavit in due form after learning the facts from the per- son who is to sign it. This person is called the affiant or deponent. The notary should use great care to express clearly the facts given him, and while stating fully those facts, to state no more than the deponent knows and can swear to. The affidavit should then be read to the affiant and he should sign the same, after which the notary should administer the oath ; that is, " swear " the affiant, and should then affix the jurat or official certificate that the affi- davit has been duly sworn to. The affidavit should be commenced by giving the State and the name of the county wherein it is made, followed by the letters » ss," thus : State of Michigan, ) County of Oakland. \ Then should be given the name of the affiant, thus: John Doe, being duly sworn, deposes and says that [here set forth clearly the facts.l After the signature the jurat should be attached in this form: Subscribed and sworn to before me, this twentieth day of March, A. D. 1S85. Richard Roe, Notary Public, Oakland Co., Michigan, If there are several affiants the affidavit shoul.) --ead « being severally Bworn, each for himself respectively deposes." 2 Si MANUAL OF THE LAW. If the affidavit relates to a matter in litigation, it should be pre- ceded by the name of the Court and the title of the cause. The names of all the parties to the suit should be given in full. If the affidavit is one that is required by law to be made by a certain per- son, as by an attorney or an agent, it is not enough to simply describe the deponent as such attorney or agent; but the fact that he is such must be specifically set forth and sworn to, and gen- erally any material fact must be specifically set forth and not merely incidentally set forth by way of description. The affidavit should always be signed by the person making it. An affidavit should never be made before a notary who is the attorney in the case in which it is to be used. Partnership names cannot be signed to an affidavit. The affiants must sign and be sworn separately. 8. The Jurat. The form of jurat above given would be sufficient in most instances, but more formal jurats are required to some instruments like bills of complaint, petitions, etc., see forms in Part III. 9. Depositions. A deposition is the testimony of a witness reduced to writing, in due form, under authority of some court, and to be used in a trial. When taken by a notary he first admin- isters an oath to the witness that in the proceedings pending in the court (naming it) between the parties to a cause (naming it) he will tell the truth, the whole truth, and nothing but the truth. He then writes down the testimony, either by giving it as a con- tinuous narrative, or by giving the questions made by the exam- iner and the answers to them. The deposition must be read to and signed by the witness, and the notary must attach his jurat 10. Administering the Oath. After the affidavit or deposi- tion has been signed by the officer and person swearing, each rais- ing their right hands, the officer uses the following words : «' you do solemnly swear that the contents of the affidavit subscribed by you are true, so help you God," To which the afliant or depon- ent must say, « I do." If he is a Quaker, or is conscientiously opposed to taking an oath, the following form may be used: "you do solemnly affirm under the pains and penalties of perjury, etc." 11. Acknowledgments. A common duty of notaries is that of certifying acknowledgments. Deeds, mortgages, and other instruments relating to real property are required to be acknowl- edged before they can be put upon record. The certificate of «cknowledgment is placed at the end of the instrument. In out CONCEEKlNG NOTARIES PUBLIC 283 modern conveyancing blanks the formal parts of it will invariably be found printed there. For forms see Part III. The notary's duty is to fill in the blanks and attach his signature, office, and seal. The seal is not required in many of the States. When a husband and wife join in the execution of a deed it was formerly, and in some States is still, required that the notary exam- ine the wife separate and apart from the husband, and ascertain from her that she executed the instrument of her own free will and without fear or compulsion from any one. In this case there must be a separate certificate of the wife's acknowledgment, as shown in the forms. In all cases the notary should ask of the person acknowledging whether he acknowledges the instrument as his free act and deed. An acknowledgment must never be taken by a notary who is the grantee in the instrument, but there is nothing to prevent it being taken by a relative of the parties to the instrument. The acknowledgment is not a part of the instrument so far as the trans- fer of property is concerned, and the deed or instrument will usu- ally be valid without it. See page 45. The certificate should show that the officer was one authorized to take acknowledg- ments, that the grantor was personally known to him, and appeared personally before him and acknowledged the deed to be free and voluntary. No particular words are necessary, but it will be well to follow the forms given, nor is it necessary that the officer should have long known the grantor, though he should take pre- caution to identify the person acknowledging w^ith the grantor. 12. Wife's Acknowledgment. When the acknowledgment is taken of an instrument conveying lands in another State, the form of the acknowledgment must comply with the requirements of that State, as the law of locality governs the transfer of lands. Many States still require that the wife's acknowledgment shall be taken separately and apart from her husband, and that she should acknowledge that she executes the deed freely, and without fear or compulsion from any one. In this respect the notary should examine the statutes of the different States and be certain that he complies strictly with their requirements in making his certificate of acknowledgments. The certificate of acknowledgment should always be so headed as to show the State and the county in which it is made. The officer should not only sign his name in full, but also write the title of his office at the end of the certificate, and he 284 MANUAL OF THE LAW. should describe himself in his oiEcial character in the body of the certificate. 13. Seals. Formerly notaries authenticated their certificateg by their offic"ial seals, but in many States seals are not now required. They are not required in Michigan nor in Massachu- setts. Though an acknowledgment taken abroad before a com- missioner for Michigan must be authenticated by his seal. It is well, however, for notaries to have seals and to use them whenever they take an acknowledgment of an instrument to be used in another State. 14. The Certificate of Acknowledgment should be on the same piece of paper as the deed, and should not be on a separate piece of paper from the deed, or watered or attached by other means. Certificate of Regularity. The laws of many States require that when deeds of property within their borders are executed in any other State, such deed will be valid if executed in accord--, ance with the requirements of that State; but in such cases there must be attached to the certificate of acknowledgment a certi- ficate signed by the county clerk and impressed with the seal of the circuit court, stating that the acknowledging officer is what he assumes to be; that he is authorized by the laws of the State to take the acknowledgment, and that the signature attached to the certificate is genuine. Such a certificate is required in Dakota, Florida, Illinois, Nebraska, New York, Ohio, Oregon, Wisconsin, Wyoming, and Canada. j IB. Rules of Conveyancing. The notary should know enough of these rules to be able to draw a deed or mortgage accurately. In the chapter on deeds will be found many directions which, with the forms appended and the exercise of care, will enable the notary to avoid many errors commonly met with. 1 6. Protesting Commercial Paper. A most important and delicate duty required of notaries public is that of protesting prom- issory netes, and bills of exchange. This consists in certifying to the fact that the note was not paid or the draft was not accepted on a. proper demand. The value of commercial paper often depends up«D its being properly protested and every notary should prepare himself to atteno 10 tnis formality, f«r 9 blunder in the performance of it may result in a loss of the debt secured bv the paper, for which loss the notary may be liable. COHCEENINa NOXASIES PUBLIC. 285 17. Promissory Notes. When a note, duly endorsed, falls due, demand of payment must be made to the maker of the note, and if payment is refused the note must be protested and notice thereof at once given to the endorser, otherwise he will not be obliged to pay it, 18. Days of Grace. In paying commercial paper a certain time, called " days of grace," is allowed by commercial law after the time of the paper expires. Three days are usually allowed for grace. The notary should acquaint himself with the statutes of his State upon this subject. In Michigan three days of grace art allowed on all bills of exchange payable at sight or at a day cer- tain, and on all notes, orders, and drafts, payable at a future day, unless there is an express stipulation to the contrary ; but bills of exchange, notes, or drafts, payable on demand, are not entitled to grace. In computing the days of grace, Sundays and legal holi- days are counted in, and the demand of payment is made on the third day unless it falls on a Sunday or a legal holiday, in which case the demand is made on the day preceding. The legal holi- days in Michigan are January first, February twenty-second, May thirtieth, July fourth, the day appointed for Thanksgiving, and December twenty-fifth. 19. Bills of Exchange. A bill of exchange is a written order from one person to another, directing the person to whom it is addressed to pay to a third person a certain sum of money therein named. The person making the bill is called the drawer, the per- son to whom it is addressed is called the drawee, and the person to whom it is given is the payee. The drawer must pay the bill if the drawee refuses to accept it, provided the bill is properly pre- sented for acceptance. The drawee is not liable until he has accepted, which is done by writing the word " accepted " on the face of it and signing his name beneath it. If he declines to do this, or if after having done it he fails to pay the bill at maturity, it must be protested for non-acceptance or non-payment, as the case may be, in the method above laid down for promissory notes. What has been said regarding the protest of notes, and the forms given in the connection therewith will apply, with a slight modifi- cation, to the protest of inland bills of exchange. - 20. Place of Payment. If the place of payment is desig- nated on the pap er it may be presented at that place, if not, it 286 MANUAL OP tHE LAW. should be presented at the residence or place of business of the maker, or payment may be demanded of him personally where- ever he is found. The demand, however, should be made during business hours. It should be actually made by pi'esenting the note and demanding its payment. If the maker is not found at the ■place designated for payment, or if he refuses payment when jdemanded, the notary at once makes protest. This is done by " noting the protest," that is marking upon the face of the note the fact of the demand, the time of making it, the cost or charges, . and the name of the party on whom the demand was made, signed / by the notary's initials. The actual protest is a formal paper set- ting forth all the facts. 2 1 . Protest, Form of, Etc. This is an instrument in which the notary certifies that on the day of its date he presented the original note to the maker thereof and demanded payment, which was refused, and thereupon he protests against the endorser for damages, costs, and interest. This is the form in common use: certificate of protest, State of Michigan, ) County of , J Be it Known, That on the . . , day of . . , . in the year of our Lord one thousand eight hundred and eighty- , at the request of . . . ., I .... a Notary Public, duly admitted and sworn, dwell- ing in county and State aforesaid, did present the origina which is hereto attached, at the .... and demanded thereof, which was refused. Whereupon, I, the said Notary, at the request aforesaid, die protest, and by these presents do solemnly protest, as wel'. against the Drawers, Makers and Endorsers of the said ai against all others whom it doth or may concern, for exchange, re-exchange, and all costs, charges, damages and interest already incurred and to be incurred by reason of the non- of the said And I, the said Notary, do hereby certify, that on the same day and year aforesaid, due notices that said .... had thus been pre- sented for .... and that .... thereof had been thus demanded and refused, and that the holders of the said .... did and would look to the Drawers, Makers, and Endorsers thereof for payment of the same, were put into the postoffice at .... with the full OOKCEENlHa NOTARIES PUBLIC. 2^7 legal postage paid thereon, and directed as follows, after diligent inquiry being made for the residence and place of business of the Drawers and Endorsers: Notices for directed And I further certify that notices were left as follows: Notice left for at Each of the above named places being the reputed place of resi- dence or business of the person to whom the notice was directed, or to whom it was left aforesaid. In Witxess Whereof, 1 have hereunto subscribed my name and affixed my seal of office. Notary Public. 22. Notice of Protest. Immediately after "noting the pro- test" the indorser should be notified of the demand and protest. The notice should state, first, that the paper was not paid at matur- ity; second, that it has been protested for non-payment, and third, the notice should identify the paper in some way, usually by a copy. The following is a form in common use: Mr , , , i88.. Take Notice, That the for $ made by , dated , payable after date at , and endorsed by you, has this day been presented and demand made for thereof , which has been refused; said has been duly PROTESTED for non-payment, and the holder now looks to you for payment of the same. Yours, &c., Notary Public. This notice should be served personally upon the endorser if he resides in the same town; or, if he lives elsewhere, by the earliest available mail. In Michigan the statute provides that if the endorser has his residence in the city, village, or township where the paper is payable, the notice of protest may be deposited, postage prepaid in the postoffice at such place, properly directed. If pay- able elsewhere, notice may be sent to him prepaid and properly directed. Still it is better to serve the notice personally if possible. The service will be good if the notice is left with the person in 2i>8 MANUAL OF THE LAW. charge of the endorser's place of business; or it may be left at his residence with the person in charge theicoi. If sent by mail it will be sufficient if sent to the office where the endorser is in the habit of receiving his letters. Where an endorser lived in the woods, twenty miles from any postoffice, it was held that notice should be given to him personally or by special messenger. 23. Shipping Protests. A marine or shipping protest is made by a vessel master or by a merchant who ships goods or who charters a vessel, and the notary's office is simply to authenti- cate the instrument, just as he would attest an affidavit or take an acknowledgment to a deed. Such a protest is a declaration or narrative of the particulars of the voyage, storms encountered, the accidents that may have occurred, and the conduct which, in cases of emergency, have been pursued. It is a sort of precaution taken to perpetuate evidence in cases involving loss or damage which are likely to become the subject of litigation. If any thing in the course of a voyage occurs which is at all unusual or may affect claims for marine insurance, or furnish a basis for claims against the ship owners, the vessel owner as soon as he reaches a port where he can do so makes a protest of the facts as above set forth. 24. Protests as Evidence. As has been stated, the making of a protest is a precaution taken for the purpose of preserving evidence. To be admissible as such, marine protests should be made as soon as possible after reaching a port where there is authority empowered to receive them. A protest has been held inadmissible unless made within twenty-four hours after reaching the port of destination. (9 Penn. St., 390.) 25. Special Duties of Notaries. The statutes of the differ- ent States have granted other and special powers to notaries, and under the federal bankrupt act they were authorized to take proofs against the estates of bankrupts. In Michigan proof of claims against insolvents, who have made assignments for' the benefit of creditors, may be made before notaries. Notaries may also act as circuit court commissioners in certain cases on an order from the circuit judge of the county. Any ^notary who is an attorney of the supreme court may act as a circuit court commicsioner in any particular case where it is shown that there is no such officer in the county, or where the regular commissioner is disqualified by being connected with the case. CHAPTER II. RULES OF ORDER FOR DELIBERATIVE BODIES. Importance of the Subject. In this democratic country some knowledge of parliamentary procedure is necessary for every one. The worliman in the guild, the capitalist in the stockholder's meeting, the citizen in the town meeting, the politician in the political convention, and the law maker, in the halls of legislation, have a common need of knowledge as to the proper conduct of a deliberative assembly. The humblest citizen is likely to be called upon to use this knowledge in any or all of the above capacities, and he should prepare himself for the emergency. A Ready Reference. For the sake of quick reference, the subjects treated are here enumerated by sections, with the page indicated upon which each may be found: Page. 1. Sources of Parliamentary Law . ....... ................. 290 2. The Organization of a Meeting ...... . . ........ .. 290 3. An Occasional or Mass Meeting 292 4. Apolitical Meeting . 292 5. A Caucus or Primary Meeting . ..... ........ . 292 6. A Conventionor Meeting of Delegates . 293 7. A Town Meeting ........... .................. ...... 294 8. A Permanent Society 294 9. Constitutions, By-Laws, Etc 296 10. Procedure, Motions, Questions, Etc .... . 298 11. Introduction of Business 298 12. Principal Motions , ... 298 13. Subsidiary Motions . . .. 298 14. Incidental Motions., . . — ....... 299 IJ. Privileged Motions 299 29° MAIJUAL OF THE LAW. i6. Order of Precedence of Motions ......... . ........ 299 17. To Fix the Time to Which to Adjourn 299 18. The Motion to Adjourn 299 19. The Rights of Members, Questions of Privilege .................... 3°° 20. The Orders of the Day.. 300 21. Appeals, Questions of Order 300 22. Objections to the Consideration of a Question .... 300 23. For the Reading of Papers . .. . ...... 301 24. Suspension of the Rules .... .... 301 25. The Motion to Lie on the Table . . 301 26. The Previous Question 301 27. To Postpone to a Certain Day .... . 302 28. To Refer to a Commiuee . 302 29. The Motion to Amend ... .. . 302 30. To Postpone Indefinitely 303 31. To Reconsider 303 32. Committees ._ 303 33. Reports of Committees ... 304 34. Debate 305. 35. Decorum in Debate . 305 36. Punishment of Members 306 37. Voting, Methods of. Etc 306 38. What is a Quorum? 307 39. Order of Business .. ... 307 40. Trial of Members 307 1. Sources of Paiiiamentary Law. As the name indicates, parliamentary law or practice is the law or rules governing the Parliament of England. It is the body of rules and regulations developed with the growth of that great deliberative assemblage. Most of it there took origin, and its general principles were there long ago settled. In the United States the practice of the National House of Representatives, which is based upon the usages of the English House of Commons, is the source of our law^ upon this subject. Of course not every matter of detail can be settled by the rules of Congress, nor does every rule of Congress apply to the conduct of every assembly. But the great parliamentary questions, such as what motions can be made, what can be debated, what their effect, what their order of precedence, etc., are all set- tled by the rule of the House of Representatives. Many minor questions not arising in Congress have been settled by the long practice of other assemblies, as will be seen. 2. Orgw^nization of a Meeting. Whenever people come together for the purpose of deliberating upon any matter, it is PARLIAMENTARY PRACTICE. 29' necessary that they proceed in an orderly manner, in accordance with definite rules of procedure, otherwise there would be no prog- ress nor accomplishment. The first thing in order is to organize the meeting. Generally such a meeting is called by some self- constituted committee, or by some person whose position or influ- ence gives him a semblance of authority. Shortly after the time appointed for the meeting, some one interested in calling it, or any person present, rapping upon a table or otherwise attracting atten- tion, says: "The meeting will please come to order. I move that Mr. A. act as chairman of this meeting." Any one else pres- ent may say : " I second the motion." The first speaker then puts the question to vote by saying: "It has been moved and seconded that Mr. A. act as chairman of this meeting, those in favor of the motion will say aye." When the affirmative vote has been taken he says: "Those opposed will say no." If it seems that a majority of those present said aye, he says: " The motion IS carried, Mr. A. will please take the chair." If the motion was lost, he announces the fact and calls for the nomination of some one else for chairman, with which nomination he proceeds as in the first case. This is the most approved method of getting a pre- siding officer, though there are others less formal. In large meet- ings the person wlio thus nominates the chairman may appoint a committee, or may act himself as a committee to conduct the chair- man to the chair. On assuming the chair the chairman may, if he chooses, make a short speech, thanking the assembly for the honor conferred upon him, and if proper, touching briefly upon the objects of the meet- ing. He then says : " The next business in order is the election of a secretary." Some person present should then say: "Mr. Chairman, I nominate Mr. B. as secretary." The chairman then puts the question. If several nominations are made, the chairman should announce as he hears the names: « Mr. B. is nominated," "Mr. C. is nominated," etc. He then puts the question on the first name mentioned, saying: "As many as are in favor of Mr. B. acting as secretary will say aye." After the « ayes " have voted he says, " those opposed will say no." If the " ayes " have it he announces the fact and requests the secretary to take a seat near the chair. If the motion is lost the question should be put upon the next name mentioned, and so on until one is elected. The sec- retary should keep a careful record of all the proceedings. *9» MANUAL OF THE LAW. "When no other officers are needed, and usually in ordinary meetings none are, the chairman here inquires: •♦What is the further pleasure of the meeting?" If the meeting is one called simply to consider and pass upon some special subject, some one interested in the matter, having previously prepared a set of reso- lutions should at this point say: "Mr. Chairman, I move the adoption of the following resolutions," — which he then reads and hands to the chairman. The meeting having been thus organized may proceed to debate the resolutions, and may amend, adopt, or otherwise dispose of them in accordance with the rules hereafter set forth. 3. An Occasional or Mass Meeting. This is a meeting the call or invitation to which is extended to the people generally. Any member of the community may feel at liberty to attend and take part in its deliberations. It is organized in the manner above set forth. Mass meetings are often called when it becomes import- ant to know the sense or feeling of the community upon any ques- tion that may arise. They are usually called by a self-constituted conamittee. i, A Political Meeting. A political meeting is like a mass Kneeting, except that its object, instead of being to gather the views «of tlie community upon any given subject, is to spread the views >of some individual upon some question of politics. Political meet- ings are generally arranged by a local committee who select the officers and provide a programme of exercises, — the principal fea- ture of which is usually a speech from some prominent politician. The officers selected are a president, secretary, and often a large number of vice-presidents appointed merely for complimentary purposes. The latter occupy seats on the platform beside the president, and when he is absent or vacates the chair, the first vice- president on the list should act in his stead. When the meeting is not previously organized by a committee it should be organized in the manner indicated for a mass meeting, except that when the officers have been duly elected the chairman, instead of inquiring " the further pleasure of the meeting," should announce the speaker or speakers of the occasion in their regular order. 5. A Caucus or Primary Meetiug. This is a meeting of the members of « political party lield for the purpose of electing dele- gates to a convention. It is really the only place vheie the American citizen ^cts directly in politics, Tlae meeting- >« ^en?r» PARLIAMENTAKY PBACTICE. 293 ally called by a standing committee. It is organized in the man- ner indicated for an occasional meeting. The voting is usually by ballot, but may be by acclamation if there is no objection. The tellers are appointed by the chairman. The delegate receiving the largest number of votes is elected. Where there are several delegates to be chosen the vote is taken upon the first, then upon the second, and so on in their regular order. The clerk of the meeting should provide them with proper credentials. 6. A ConTention or Meeting of Delegates. In a conven- tion, or assembly composed of delegates, it is necessary to first' form a preliminary organization in order to ascertain who are properly the members of the assembly and entitled to vote. The temporary organization is effected in the manner described for an occasional meeting, by the election of a temporary chairman and .secretary. The first business in order is the appointment of a com- mittee on credentials. This committee consists of three or more members, according to whether the convention is a small or large one, and it is usually appointed by the chair. In large State con- ventions the committee is generally made to consist of one mem- ber from each county delegation, and his name is announced by the chairman of each county delegation as the secretary calls the roll of the counties. It is now customary to also appoint at this time a committee on "permanent organization and order of busi- ness," and a committee on " platform " or « resolutions." These committees in State conventions are generally appointed as above. After the committees are appointed the convention should take a recess for an hour or so to give the committees an opportunity to prepare their reports. On the re-assembling of the convention the first business in order is the report of the committee on credentials. This report consists of a list of the names of the delegates who are entitled to seats. After its adoption only those named in it are entitled to vote. The next business in order is the report of the committee on permanent organization, etc. This report should contain the names of those nominated for permanent officers, and also a programme of business. Its adoption has the effect of elect- ing the permanent officers; upon which the temporary officers withdraw, and the permanent officers assume their duties and carry out the programme as reported. That programme should first provide for the report of the committee on resolutions, if it does not, that will be the first order of business any way. 21 294 MANUAL OP THE LAW. 7. Township Meetings. Town meetings are provided for by the statutes of the several States. For the most part these meet- ings are for the election of township officers, and the statutes relat- ing thereto must be consulted and closely followed. There is, however, usually provision for deliberation at such meetings by the qualified electors of the township, upon many matters affecting the general welfare, especially as to the amount of money to be raised for various purposes by the township. At such delibera- tions the supervisor of the township presides, and the town clerk acts as secretary. The rules of parliamentary procedure apply to such deliberations, and the results arrived at have the force of binding law. Here is an example of the necessity for every citi- zen's possessing some knowledge of parliamentary law. 8. A Permanent Society. When it is desired to form a permanent society, those interested in it should invite the proper persons to meet at a certain time and place. A few minutes after the time appointed some one should step forward and say : " The meeting will please come to order; I move that Mr. A. act as chairman." Some one else should say: "I second the motion." The one who made the motion should put the question, as described in section two, and as there indicated, the chairman, when elected, should announce the first business in order, the election of a secre- tary. After the election of a secretary the chairman should call upon some member interested in organiziilg the proposed society to state the object of the meeting. When such member addresses the chair, and is recognized, he is then at liberty to speak upon that subject. Exact formality is not required. The chairman may call upon other members to give their opinion, or the names of particular persons may be called out by members. The chairman should observe the wishes of the members so expressed. After lliere has been sufficient explanation in this informal way, some one should offer a resolution substantially like the following: " Resolved, that it is the sense of this meeting that a society for ( here state the name or object of the society) should be formed in this town." The resolution, when stated by the chairman, would be open to debate and should be treated the same as any motion. It is not necessarj' in all cases that such a resolution be adopted. A constitution and by-laws of the proposed society may have been previously prepared and may be submitted for adoption in the same manner as a resolution is; or .some one may move that » PAKLIAilENTAKY PRACTICE. 295 committee of five be appointed by the chair to draft a constitu- tion and by-laws for the proposed society. Such a motion is debat- able, and may be amended or adopted as the meeting may desire. Generally such a committee would not make its report until an adjourned meet;ing. After such a committee has been appointed the chairman should inquire: "Is there any other business before the meeting?" or "what is the further pleasure of the meeting?" Usually a motion would then be made to adjourn to a certain time. Such a motion, when seconded and stated by the chair, is open to debate and amendment. Sometimes a motion is made at an earlier stage of the meeting to fix the time and place of the next meeting. If such a motion has been carried, the motion at the close of the meeting would simply be " to adjourn." This motion cannot be amended or debated, and if carried the chairman declares that "the meeting stands adjourned to meet at ," the time and place agreed upon. At the second meeting the same officers serve until the perma- nent officers are elected. At the hour of meeting the chairman announces: "The meeting will please come to order. The sec- retary will read the minutes of the last meeting." If there are any errors in the secretary's minutes any member may call attention to the fact; if there is no objection the chairman, without waiting for a motion, directs the secretary to make the correction, and announces: "If there is no objection the minutes will stand approved as read (or as corrected, if corrections have been made)." The chairman next announces: "The hearing of the report of the committee on constitution and by-laws is now in order." The chairman of that committee, after addressing the chair and being recognized, reads the report and hands it to the chairman, or he may hand it to the chairman without reading it, in which case tlie chairman hands it to the secretary and directs him to read it. After the reading of the report the chairman says: "You have heard the report of the committee, what shall be done with it?" Some one should move " the adoption of the constitution as reported by the committee." If such motion is seconded the chairman says: " The question is upon the adoption of the constitution reported by the committee." The constitution may be adopted as a whole or article by article; the latter is perhaps the safer way. If that 296 MANUAL OF THE LAW. course is followed, the chairman or secretary reads the first article of the constitution. The chairman asks: "Are there any amend- ments proposed to this article?" If none are offered the next arti- cle is read and the same question is asked, and so on. When the last article has been read, the chairman says: "The whole consti- tution having been read, it is open to amendment." Any one can now move amendments to any part of the constitution. Motions 'to amend are debatable, and when adopted the secretary should ch.inge the constitution accordingly. When it has been thus mod- ili-cl the chaiiman inquires: "Are you ready for the question?" If no one speaks the chairman says: "As many as are in favor of adopting the constitution as amended will say ' aye,' and (after a pause) as many as are opposed will say 'no.'" The chairman then, and in all cases after a vote, announces the result. The chairman should, if the constitution has been adopted, state that it will now be necessary for those who wish to become mem- bers of the society to conform to whatever conditions the new con- stitution imposes upon membership. These conditions are usually that the members shall sign the constitution and pay an initiation fee. If the society is a large one it will be well to take a recess for this purpose, and a motion to that effect should be made and carried. The chairman, at the end of the recess, calls the meeting to order, and says: " The next business in order is the adoption of the by-laws." Some one should move the adoption of the by-laws reported by the committee, and they are then treated the same as the constitution. On the motion to adopt the by-laws, only those are permitted to vote who have become members. The next business in order will probably have been determined by the by- laws just adopted; if so, the chaii man should announce it. Usually it will be the election of permanent officers of the society. In that case some one should move the appointment of a committee to nom- inate such officers, or, if the by-laws provide a different method that should be followed. As the officers are elected they replace the temporary ones, and when the election is completed the society is organized. 9, Constitutions, By-Laws, Rules, Etc. It is a matter of much importance that the constitution and 1 y-laws of any perma- nent society be correctly framed. If the society is one that will be likely to own real estate or much personal property, or will be likely to contract debts, it should be incorporated, that is, it should PAELIAMENTABT PEACTICB. 297 be made a corporation under the laws of the State where it exists. For the reason that if this is not done the society will be, so far as its debts are concerned, in law, a partnership, and each member will be liable for the entire indebtedness; and so far as its real property is concerned the members will be tenants in common thereof, and difficulties will be encountered in case a sale is desired or any member should die. The incorporation is usually effected by having articles of asso- ciation duly executed and acknowledged and filed with the proper official. The statute providing for incorporation must be carefully followed and the services of a lawyer would be needed in the mat- ter. If it is desired to have the society incorporated it will be well to instruct the officers, or a committee, to take steps to that end. A form for articles of association or charter, will be found in Part III. In forming a constitution it will be well to procure copies of those adopted by other similar societies, or to get some approved form and follow it so far as its provisions are applicable. The form given in Part III. is drafted to suit the needs of a literary and debating society; but it can be modified to suit other kinds of associations. It may be observed that constitutions should contain only the frame-work or fundamental parts of the organization, and for stability should be made difficult of amendment. Previous notice of amendments should be required, and a two-thirds or three-fourths vote be necessary for their adoption. Constitutions generally need contain only five articles, providing for the follow- ing subjects: i. Name and object of the society; 2. The qualifi- cation of members; 3. The officers, their election and duties; 4. Meetings of the society; and 5. Amendment of the constitution. The by-laws should be more specific in their provisions. They should cover those points not provided for in the constitution which it is deemed necessary to have definitely settled. Where the character of the society is such that the common parliamentary rules will not apply to all its proceedings, such proceedings should be regulated by by-laws. The form of by-laws given in Part III. may be found useful to those who wish to draft a set of by-laws for any society. In addition to the constitution and by-laws, it will be well to adopt some manual of procedure as a standard of authority. Having done so, nearly every contingency will be provided for. But it should be remembered that these rules of 29^ MANUAL OB" THE LAW. procedure have not the force of positive law, and that if they are not followed the action of the society is not thereby rendered void. 10. Motions, Questions, Etc. When a proposition is made to a deliberative assemblj', it is called a motion^ when stated to the assembly by the chairman, it is called a question; and when adopted it becomes the resolution, order, or vote of the assembly, as the case may be. Business should be brought before the assem- bly by a motion of a member, who, having addressed the chair and been recognized, is said to have " obtained the floor " for that purpose. When two or more members rise at the same time the chairman decides who is entitled to the floor by announcing the member's name. Usually the one first to arise should be recog- nized. The motion, having been seconded, is stated by the chair and then becomes the question. 11. Introduction of Business. Business may also be brought before the assembly by the presentation of a communication, in which case a motion should be made to receive the communication, or if it has been received without the formality of a motion, a motion should be made to dispose of it in some manner. The question having been stated by the chair, is in the possession of the assembly for debate, and cannot be withdrawn or modified without leave of the assembly or by moving an amendment. If several members rise to speak upon a question the chairman should first recognize the member upon whose motion the question was brought before the assembly. A member who has once had the floor is not entitled to it again while the same question is before the assembly, if the floor is claimed by any one who has not spoken to that question. After the floor is assigned to a member he cannot be interrupted by calls for the question, or by motion to adjourn, or for any other purpose except i. A call to order; 2. An objection to the consideration; 3. A call for the order of the day (if such has been made), or 4. ]iy a motion of privilege requiring immedi- ate action. A member arising for any of these four purposes sliould state at once his reason for interrupting. 1'2. Principal Motions. These are motions bringing before the assembly new matters for consideration. They can not be made when any other question is before the assembly. They take precedence of nothing and yield all privileged, subsidiary, and inci- dental motions. 13. Subsidiary Motions. These are such as are applied to PAELIAMENTARt tRACTlCfi. ' ^99 other motions for the purpose of disposing of them. They take precedence of a principal question, that is, they must be decided before a principal question can be acted upon. They yield only to privileged and incidental questions. Subsidiary motions and their order of precedence among themselves are: i. To lie on the table; 2. The previous question; 3. To postpone to a certain day; 4. To refer to a. committee; 5. To amend; and 6. To post- pone indefinitely. 14. Incidental Questions. These are such as arise out of other questions and consequently must be decided before such questions. They can not be amended, and yield only to privileged questions. They are as follows: " i. To appeal; 2. Objection to the consideration of the question; 3. For the reading of papers; 4. For leave to withdraw the motion; and 5. Suspension of the rules. 16. PrlTileged Questions. These are such as because of their importance, take precedence of all others. They are usually undebatable and must be voted upon at once. They are: i. To fix the time to which to adjourn; 2. To adjourn; 3. Any question relating to the rights of the assembly or of its members; 4. To proceed with the order of the day. 1 6. Order of Precedence of Motions. A motion that may be made while a question is before the assembly is said to take prece- dence of that question. The following motions are arranged in the order in which they take precedence of each other. 17. To Fix the Time to Which to Adjourn. This takes precedence of all others, and is in order even after a vote to adjourn has been taken, if the the chairman has not announced the result of that vote. It is undebatable if made ' when another question is before the assembly. It can be amended only by altering the time. 18. To Adjourn. This motion takes precedence of all except the motion above mentioned. It can not be debated, or have any motion applied to it, or be reconsidered. If lost it can not be repeated unless there has been intervening business. Its effect is to adjourn the assembly to the next regular time of meeting. And unfinished business is the first in order at the next meeting after the reading of the minutes, unless the next time of meeting is more than a year from then, in which case an adjournment puts an end to all unfinished business. 300 MANUAL OF THE LAW. 1 9. Rights of Members. Questions relating to the rights of the assembly or its members takes precedence of all excepting the two last mentioned. When such a question is raised the chairman must decide whether it is a privileged one or not, and from his decision an appeal may be taken by any two members. Such questions may be referred, or laid upon the table, or have any other subsidiary motion applied to them. As soon as they are disposed of the assembly resumes the consideration of the ques- tion interrupted. 20. Orders of the Day. When any matter has been set for consideration at any particular day or hour, it becomes " the order of the day " for that time, and it cannot be considered before unless by a two-thirds vote. When the day or hour arrives the motion calling the matter up takes precedence of all others but the three last mentioned. It is customary for many bodies to adopt a regu- lar order of business for the day. 21. Appeals and Questions of Order. When a point of order is raised by a member, it takes precedence of the question giving rise to it, and must be decided promptly by the chairman without debate. If any member objects to the decision, he may say: "I appeal from the decision of the chair." If the appeal is seconded, the chairman at once states the question, "Shall the decis- ion of the chair stand as the decision of the assembly ?" A tie vote sustains the chair. Any privileged motion, if made pending an appeal, takes precedence of it. An appeal can not be amended nor debated if it relates simply to indecorum, or to transgressions of the rule, or if made while the previous question is pending. In other cases it can be debated, and in all cases the chairman can state the reason upon which he bases his decision. The vote on an appeal may be reconsidered. A member desiring to raise a point of order should say: " Mr. Chairman, I arise to a point of order." The chair requests the member to state his point of order. Which he may then do *nd the chair at once pronounces his decis- ion. If no appeal is taken the first member resumes his speech, unless the decision was that he is out of order, without a vote of the assembly to that efTect. 22. Objection to the Consideration of a Question. When any principal motion is put and the question upon it stated, any member may object to its consideration, and the objection need not be seconded. It can not be debated or amended, but the chair- PAKLIAMENTAEX PEAOTICE. 3°' man imtnedtately puts the question: " Shall the question be con- sidered?" If decided in the negative by a two-thirds vote the whole matter is dismissed for that session, otherwise the discussion continues as if the objection had not been made. 23. Reading Papers. Where a motion is made relating to any papers which have been laid before the assembly, every mem- ber has the right to hear such papers read at least once before hav- ing to vote upon them. And the chairman should direct them to be read when it has been asked for information, and not for delay. If an objection is made a motion is necessary, which motion takes precedence of -the principal question and can not be debated or amended. 24. Suspension of the Kules. Where rules of debate have been adopted they can not be suspended, except for a definite pur- pose, and only by a two-thirds vote. When for any purpose it is desirable to suspend them, the motion should be made in this form: "I move to suspend the rules which interfere with (supply the object)." Such motion is not debatable, it can not be amended or reconsidered. 25. To Lie on the Table. This is a subsidiary motion and takes precedence of all others of its class, yielding only to privi- leged and incidental questions. It is not debatable, can not be amended, and if decided affirmatively can not be reconsidered. Its effect is to remove the subject from consideration until the assem- bly votes to take it from the table. It carries with it everything pertaining to it, so that if an am'endment be laid upon the table the subject which it amends goes there with it. 26. The PreTious Question. The object of this motion is to suppress debate and bring the assembly to a vote upon the princi- pal question. Free debate is always desirable, and is allowed upon all motions which have the effect of adopting or finally disposing of any original question. Yet a minority may make improper use of this privilege and so may obstruct and delay business. It is necessary, therefore, to have methods by which debate may be closed. If it seems that a member or faction is talking just to consume time, any member obtaining the floor may "call for the previous question." If the call is seconded, the chairman instantly puts the question: " Shall the main question now be put?" If it is carried by a two-thirds vote all debate must stop, unless the pending measure is one which has been reported from a commit- $oi MANUAL Of THE LAW. tee, in which case the committee man reporting it has, as in other cases, a right to close the debate. The chairman then puts the matter to vote, first on the motion to amend, if that has been made, and then on the main question as amended. The previous question takes precedence of every debatable question, and yields only to privileged and incidental motions, and the motion to lie on the table. The previous question is sometimes called the "gag" law. It should require a two-thirds vote to carry it, though in the house of representatives the practice is to have it seconded by a majority, and it is then carried by a majority vote. It is not allowed in the U. S. senate. The previous question can be called for on an amendment, in which case, if it carries, it leaves the main question open for debate. Many societies have a rule limit- ing the time allowed for debate. In such societies the object of the previous question may be accomplished by simply insisting on the rule. Usually a member can not proceed beyond the limit of the rule unless he obtains unanimous consent. 27. To Postpone to a Certain Day. The effect of this motion is to carry the whole matter it refers to over to the time specified, and it can not be considered before that time except by a two-thirds vote. The motion takes precedence of the motion to commit, or amend, or to indefinitely postpone, and it yields only to the motion to lie on the table and to privileged and incidental questions, and the previous question. It is not in order to postpone to a day beyond the end of the session. 28. To Refer to a Committee. Very many assemblies have regular standing committees appointed to consider various subjects, and it is customary to refer most matters to one of these commit- tees before they are considered in the assembly. This is done by a motion " io commit" which takes precedence of the motions to amend or to postpone indefinitely. It may be amended by altering the committee or by giving instructions, and it is debatable. In societies having no committees it is sometimes desirable to create one for the purpose of referring to it some difficult or delicate subject that may have arisen. The motion then is " to refer to a committee to be appointed by the chair," or " to be elected," as the case may be. 29. The Motion to Amend. This is one of the most common motions. It takes precedence only of the question it proposes to tAELIAMEiJTAUY PfiACTICE. 303 amend, yielding to all other motions. It may be made by moving to " add to" to " insert" to " strike out and insert" to " substi- tute" another motion for the one pending, or to '■'■divide tlic ques- tion" Any amendment is in order which has a direct be.iiing on the principal quebtion, though its effect may be to make the prin- cipal question have an exactly opposite meaning. For example: A motion for a vote of censure may be amended by inserting the word "thanks" in place of the word "censure." All motions may be amended except the motions to adjourn, to lie on the table, for the order of the day, for the previous question, to postpone indefi- nitely, to reconsider, and all incidental questions. An amendment of an amendment cannot be amended. 30. To Postpone Indefiuitely. The effect of this motion is to remove the question from before the assembly during that ses- sion. It takes precedence only of the question to which it relates. It cannot be amended, but it opens to debate the entire question which it proposes to postpone. 31. To Reconsider. When any principal question has been acted upon by the assembly it cannot be taken up again during the same session, except by a motion " to reconsider T The motion to adjourn, and privileged and incidental motions (except a motion for the orders of the day and for a suspension of the rules), may be renewed after the transaction of intervening business, or the intro- duction of any motion which changes the state of affairs; but any main question, when once finally acted upon, is beyond the power of the assembly except on a motion to reconsider the vote. Such a motion may be made at any time during the day on which the vote was taken, but can only be made by one who voted with the prevailing side. It can be made even when another member has the floor, but is then only "entered on the minutes," and cannot be considered until the pending measure is disposed of. If then called up it takes precedence of every motion except to adjourn and to fix the time at which to adjourn. It cannot be amended, and is debatable or not, just as the question it calls up is or is not. If that question is debatable it opens the entire merits of the origi- nal matter, and if carried, places the original question in exactly the same position that it had before the first vote upon it was taken. 32. Committees. Most deliberative bodies have regular com- mittees who do the preliminary work by way of preparing mat- 304 MANUAL OF THE LAW. ters for formal action by the assembly. These committees are either " Standing Committees," which hold during the session, " Select Committees," appointed for a special purpose, or the " Committee of the Whole," consisting of the entire assembly. Committees usually proceed informally, and allow the greatest freedom of debate. Any member may speak as often as he wishes, and the only way to close or limit debate, is for the assem- bly, in case of the Committee of the Whole, to vote that debate in committee shall cease at a certain time. Committees are usually appointed by the chairman who should observe this rule in his appointments. If the committee is one for action (as a committee of arrangement) only those should be placed upon it who are favorable to that action, and the person moving for the appointment of the committee should generally be made its first member. If, however, the committee is for deliber- ation and investigation, it is important that all parties be repre- sented upon it, so that the fullest discussion may take place and thus the chances of unpleasant debate in assembly be diminished. The first person named on the committee acts as its chairman, unless the committee by vote elect another. When the assembly resolves itself into the committee of the whole, the chairman calls upon any member to preside, and then vacates the chair. It can only consider the questions referred to it, and the only motions in order are to " amend " and " adopt." When it is through with the consideration of the subject refered to it, or wishes to adjourn, a motion must be made that " the committee rise and report." If the motion carries, the chairman resumes his seat, and the member who presided over fhe committee reports the progress made by it. 33. Reports of Committees. When a committee has com- pleted its consideration of a question it embodies the results of its deliberations in a report. The report can only contain what is agreed to by a majority of the committee. The minority may also make a report, but it can only be considered by the assembly vot- ing to substitute it for the report of the committee. A majority report commences: "Your committee on to which was referred, etc., respectfully report, etc." A minority report com- mences: " The undersigned, a minority of the committee to which was referred, etc." The chairman of the committee usually reads the report to the assembly. This may be done after a vote to « receive the report," or without that formality. When the report PARLIAMENTAET PRACTICE. 305 has been read, the committee, unless it is a " standing committee," is thereby dissolved, though it is revived by a motion to " recom- mit." When the assembly is ready to consider the report a motion should be made to " accept," " adopt," or *' agree to " it. All of these have the same effect when carried, that is to make the action of the committee become the action of the assembly. When the report has been thus adopted it may be debated, amended, or treated just as though the matter had been introduced by a mem- ber and there had been no committee. 34. Debate. When a motion has been made and seconded, it is stated by the chair. It then becomes the " question," and if debatable, is open for discussion. A member desiring to speak upon it should rise in his seat and address the chairman by his proper title, as "Mr. Chairman," "Mr. President," « Mr. Speaker," " Mr. Moderator," etc., as the case may be. Parliamentary cour- tesy requires the presiding officer to first recognize the member who made the motion, or if the subject before the house is the report of a committee, the member who presented the report is first entitled to the floor. This member is also entitled to close the debate. Even after the previous question has been ordered, if the matter under discussion is the report of a committee, the commit- tee man who made the report is entitled to close the debate, and is at once assigned the floor by the Chairman. With this exception, no member can speak more than once to the same question, nor longer than fifteen minutes at one time without leave of the assem- bly, and the question of granting leave shall be decided by major- ity vote without debate. The above limit may be changed by rule if circumstances require. 35. Becorum in Debate. A member, in debating, should confine himself strictly to the matter before the assembly. He should avoid all personalities. He should not reflect upon the motives of any member, but should confine himself to measures. He should not refer to other members by name, but should describe them in some other way, as " the gentlemen who have opposed this measure," or " the member who spoke last," etc. He must not use disorderly or discourteous words. When called to order he should sit down till the question of order is decided. If decided to be out of order he can not proceed, without leave of the assem- bly, expressed by a vote, upon which question there can be no debate. Disorderly words should be taken down by the clerk. 3"6 MANUAL OF THE LAW. While they are behig considered by the assembly the person hav- ing used them should retire from the room. 36. Punisliiiient of llemlbers. An assembly has the right to enforce its own laws, and to punish its members, but the punish- ment can only extend to the expulsion from the society. The soci- ety may, if necessary, give notice to the public that the member has been expelled, but it has no right to publish the charges against him. If it does its officers may render themselves liable for libel. The assembly, also has the right to decide by vote or rule who may be present during the sessions, and to eject any person who disobeys such regulation, using only such force as is necessary, and the chairman may detail members to remove the person without calling upon the police. 37. Methods of Toting. There are several methods of voting in common use, as by word of mouth, or viva voce, by holding up the hand, by rising, by calling the " yeas " and " nays," and by ballot. The most common method is as follows: After the ques. tion has been stated, or if debatable, after it has been debated, the chairman says: "As many as are in favor of [here state the ques- tion] will say ayef after the affirmative vote has been expressed he says : "As many as are opposed say «o." Or if the question is upon the adoption of some resolution or report, the chairman may say: "You have heard the resolution (or report} read; those in favor of its adoption will say ayef " those opposed will say noP The chairman should always distinctly announce the result of the vote, as "the motion is carried — the resolution (or report) is adopted." If he is uncertain which side has prevailed he may put the question a second time. When he announces the vote, if any member doubts his accuracy he may call for a " division." The chairman then says: "A division is called for; those in favor of the motion will rise." After counting these and announcing their number, he says: "Those opposed will rise." He then counts these, announces their number, and declares the result. If neces- sary he can appoint tellers to make the count. They should be selected from both sides of the question. Any member can change his vote before the result has been announced. The method of taking a vote by " yeas and nays " is for the chairman to state both sides of the question at the same time; the clerk calls the roll of the members, and as the name of each is called he rises and says "aye" or "no," according to whether he favors or opposes PAELIAMENTAKT PKACTICE. 307 the motion. When the roll call is completed the clerk reads the names of those voting in the affirmative, and afterwards those voting in the negative, that mistakes may be corrected. He then gives the numbers to the chairman who announces the result. This method is used in legislative bodies, but is not practical for mass meetings, or for ordinary societies. If there is a tie vote the question is usually decided by the casting vote of the chairman. A majority vote is sufficient to decide all questions except the following: i. To Amend the Rules; 2. To Suspend the Rules; 3. To Make a Special Order; 4. To take up a Question out of its Order; 5. To Sustain an Objection to the Consideration of the Question; 6. To Order the Previous Question. These require a two-thirds vote. 38. What is a Quorum? A quorum of an assembly is such a number as is competent to transact business. Unless there is a special rule upon the subject a majority constitutes a quorum. It is not unusual, however, to adopt a much smaller number, some- times as small as one-tenth or one-twentieth of the members. Tlie English House of Lords consists of about 500 members, but three members constitute a quorum. The House of Commons numbers about 650 members, and 40 constitutes a quorum. The U. S. Constitution provides that a majority shall constitute a quorum in the Senate or House of Representatives. 39. Order of Business. When a society or an assembly has no regular order of business, the following will be found useful as a guide: 1. Reading minutes of previous meeting. 2. Reports of committees. 3. Unfinished business. 4. New business. 40. Trial of Members of Society. Every assembly has the right to purify its own body, and may therefore investigate the character of its members, and may require them to testify in a trial for that purpose, and expel them if they refuse. Any mem- ber who feels that the conduct of any other member has been improper, may prefer charges against such other member. Such charges should be referred to a committee of investigation. Some societies have a regular standing committee whose duty is to receive complaints and report cases for discipline. The report of such committee need not go into details, but should contain a 3o8 MANUAL OF THE LAW. recommendation of such action as the committee thinks proper, If the charges are trifling, they so report them and the matter drops. If serious, the report may recommend that the member be expelled, and the report should in such case close with a resolu- tion fixing the time to which to adjourn, and instructing the clerk to cite the member to appear before the society at the adjourned meeting and show cause why he should not be expelled upon the following charges, stating the charges in full. After a member has been thus cited to appear for trial he is theoretically under arrest, and is deprived of his rights as a member until his case is disposed of. At the adjourned meeting the trial takes place. If the accused does not appear, after receiv- ing a written notice and copy of the charges from the clerk, that is usually a sufficient cause for expulsion. The report of the com- mittee and the charges should be read. No other evidence may be necessary. The chairman of the cornmittee acts as the prose- cutor. He may introduce such other evidence as he thinks proper. The accused may appear with counsel if he desires, may make an explanation, may bring in witnesses, and either party may cross- examine the others' witnesses and introduce rebutting testimony. When the evidence is presented the accused should retire from the room. The assembly may then deliberate upon the matter and take a vote upon the question of expulsion, or such other pun- ishment as is thought best. A two-thirds vote is necessary to expel a member. This is the rule of congress. Some assemblies, of an ecclesiastical nature, like church tribunals, often settle important property rights in the above manner, and their decisions are fol- lowed and enforced by the civil courts. CHAPTER III. GLOSS ART OF LAW TERMS. Abandonment. The relinquishment or surrender of rig;-hts oi property by one person to another. In insurance by " abandon- ment " is meant the transferring of the property of the insured, oi v/hat is left of it, to the insurers. Abate. A reduction made by the creditor for the prompt pay- ment of a debt due by the payer or debtor. The removal of a nuisance. Abduction. Forcibly taking away a man's wife, or his child. Abet. To encourage or set another on to commit a crime. Abscond. To go in a clandestine manner out of the jurisdic- tion of the court. Acceptance. The receipt of a thing offered by another with an intention to retain it, indicated by some act sufficient for the purpose. An assent and engagement to pay a bill of exchange when due. See page 285. Accessary. One who is not the chief actor in the perpetration of the offence nor present at the performance, but is in some way concerned therein, either before or after the fact committed. Accession. The right to all which one's own property pro- duces, and the right to that which is united to it either naturally or artificially. Accommodation Paper. Promissory notes or bills of ex- change, made, accepted, or indorsed, without any consideration therefor. Accord. A satisfacdon agreed upon between the party injur- ing and the party injured, which, when performed, is a bar to all actions upon this a<:count< SIO MAHTJAIi OF THE LAW. Accretion. The increase of real estate by the addition of por- tions of soil by gradual deposition through the operation of nat- ural causes to that already in possession of the owner. See Chap- ter III., on page 19. Accrue. To grow; to be added to as the interest or profit added to the principal. Acknowledgment. The act of one who has executed a deed in going before some competent officer or court and declaring it to be his act and deed. See page 282. Act of God. An accident arising from some cause which oper- ates without the influence or aid of man, as the winds, waves, lightnings, etc. Action. A formal demand of one's right from another person or party made and insisted on in a court of justice. Ad litem. For the suit. Guardian ad litem is a guardian appointed to attend to a suit against a minor. Administrator. A person authorized to manage and distri- bute the estate of an intestate, or of a testator who has no exe- cutor. See page 273, 277. Admirality. A court having a very extensive jurisdiction of marine causes, civil and criminal. Adultery. The voluntary sexual intercourse of a married per- son with a person other than the offender's husband or wife. Advancement. A gift by anticipation from a parent to a child of a whole or a part of what is supposed such child would inherit on the death of the parent. See Chapter XXXIII., page 259. Adverse Possession. The enjoyment of land under such cir- cumstances as indicate that such enjoyment has been commenced and continued under an assertion or color of right on the part of the possessor. Affidavit. A statement or declaration reduced to writing and sworn or affirmed to before some officer who has authority to administer an oath. Affinity. The connection existing, in consequence of marriage, between each of the married persons and the kindred of the other. It is distinguished from consanguinity, which denotes relationship by blood. See page 281. ' Affirm, To make affirmation; to make a solem promise, before an authorized magistrate or tribunal, by persons who conscien- tiously decline taking an oathj which declaration is in law equiva- lent to an oath. GLOSSAKY OF- LAW TERMS. 311 A Fortiori. By the weightier reason. Agency. A relation between two or more persons by which one party, usually called the agent or attorney, is authorized to do certain acts for or in relation to the rights or property of the other, who is called the principal. Agent. One who undertakes to transact some business or to manage some affair for another by the authority and on account of the latter, and to render an account of it. Alias. A second or further writ; another name; an assumed name. Alilbi. Presence in another place than that described. Being m another place at the time of the commission of the crime. Alien. A foreigner; one of foreign birth and unnaturalized. Alimony. The allowance which a husband, by order of court, pays to his wife living separate from him for her maintenance. Allegiance. The tie which binds the citizen to the govern- ment in return for the protection which the government affords him. Ambiguity. Duplicity, indistinctness, or uncertainty of mean- ing of an expression used in a written instrument. A mensa et thoro. From bed and board; a limited divorce. Aml)assa(lor. One sent abroad by the government to repre- sent it at the court of another nation. A public minister. Public ministers are of different ranks: i. Ambassadors; 2. Ministers Plenipotentiary, and Envoys Extraordinary; 3. Ministers resident; 4. Charges des affaires; 5. Commercial agents or consuls. We havCT^ ambassadors in America. Ancestor. One who has preceded another in a direct line of descent. Ancillary. Auxiliary, subordinate; used of an administi;ii;on taken out in the place where assets are situated, which is subor- dinate to the principal administration. Animus. The intention with which an act is done. Annuity. A yearly sum stipulated to be paid another in fee, or for life, or years, and chargeable only on the person of the grantor. Anonyraoi^s. Without name. Ante-Nuptial. Before marriage; with a view to entering into marriage. A priori. From the former. 3I» MANUAL OP THE LAV?. Appeal. The removal of a cause from a court of inferior to one of superior jurisdiction for the purpose of obtaining a review and retrial. Appraisement. A just valuation of property. Appraiser. A person appointed by competent authority, to appraise or value goods or real estate. Apprentice. A person bound in due form of law to a master to learn from him his art, trade, or business, and to serve him dur- ing the term of his apprenticeship. See page i8S. Appurtenances. Things belonging to another thing as prin- cipal, and which pass as incident to the principal thing. Arraign. To call a prisoner to the bar of the court to answer the matter charged in the indictment. Arrears. The remainder of an account, or sum of money in the hands of an accountant. Any money due and unpaid at a given time. Arrest. To deprive a person of his liberty by legal authority. Arrest of Judgment. The staying or stopping of a judg- ment after verdict for legal cause. The motion for this purpose is called a motion in arrest of judgment. Arson. The malicious burning of a dwelling-house of another person. Articles. The distinct portions of a document in writing; as Articles of Agreement, an account consisting of many articles. Assault. An attempt or offer to beat another, accompanied by a degree of violence, but without touching his person, as by lift- ing the fist, or a cane in a violent manner, or by striking at him- and missing him. If the blow aimed takes effect it is a battery. Assign. To transfer or make over to another. To transfer to, and vest in, certain persons called assignees, for the benefit of creditors. Assumpsit. He undertook (promised). Attachment. A seizure, or taking by virtue of a legal pro- cess. Attorney. One put in the place or stead of another to manage his affairs. Attorney i?i fad: A person to whom the authority of another who is called the constituent, to transact any business for him out of court. Attorney at-Iazv : An officer in a court of justice who is employed by a party in a cause to manage the same for him. GLOSSAEY OF LAW TEllilS. 3' 3 A Tinculo matrimonii. From the bonds of matrimony. Award. The judgment or decision of arbitrators or referee? on a matter submitted to them. See Chapter XXXII, page 254. Bail. To set free, on giving security for appearance at a cer- tain day and place. Bailment. A delivery of something of a personal nature by one party to another to be held according to the purpose or object of the delivery, and to be returned or delivered over when thai purpose is accomplished. Bail-peace. A slip of parchment, or paper, containing a recog- nizance of bail above^ or bail to the action. Bankrupt. A trader who breaks or fails, or becomes unable to pay his debts in the ordinary course of trade; an insolvent trader. In strictness no person but a trader can be a bankrupt. Bankruptcy is applied to merchants and traders, insolvency to other persons. Bankrupt Law. A law which upon a bankrupt's surrender- ing all his property to commissioners for the benefit of his cred- itors, discharges him from the payment of his debts, and all liabil- ity to arrest or suit for the same, and secures his future acquired property from a liability to the payment of his past debts. Bans of Matrimony. Notice of a marriage proposed, or of a matrimonial contract, proclaimed in a church, or other place pre- scribed by law, that any person may object, if he knows of any kindred between the parties, of any pre-contract, or other just cause why the marriage should not take place. Bar. I. The whole body of lawyers licensed in a court; the legal profession. 2. A special plea, constituting a sufficient answer to the plaintiff's action. 3.' The railing that incloses the place which counsel occupy in courts of justice. Hence the phrase, at the bar of the courts signifies in open court 4. The place in court where prisoners are stationed for arraignment, trial or sentence. Barrister. A counsellor learned in the laws, qualified and admitted to plead at the bar. Barter. A contract by which parties exchange goods for goods. Battery. The unlawful beating of another. It includes every angry and violent touching of another's person or clothes, or any- thing attached to his person or held by him. Spitting in one's face may be a battery. It is distinguished from an assault, inasmuch as 3 '4 MANUAL OP THE LAW, the latter does not necessarily imply a hitting or a blow. There may be an assault without battery, but there can not be a battery without an assault. Bequeath. To give by will; applied to personal property. Devised is applied to a gift by will of real estate. See Chapter on Wills, page 268. Bigamy. The offense of contracting a second marriage during the life of the first husband or wife. Bill. A declaration in writing, to an equity court, expressing some wrong the complainant has suffered from the defendant. Bill of Costs. A statement of the items which form the total amount of the costs of a party to a suit or action. Bill of Credit. Among merchants it is a letter sent by an agent or other person to a merchant desiring him to give credit to the bearer for goods or money. Bill of Entry. A written account of goods entered at the Custom House, whether imported or intended for exportation. Bill of Exchange. A written order or request from one per- son to another, desiring the latter to pay to some person designated a certain sum of money therein named. Bill of Lading. A written account of goods shipped by any person on board of a vessel, signed by the master, who acknowl- edges the receipt of the goods, and promises to deliver them safe at the place directed, damages of the sea excepted. A similar instrument made by a carrier by land. Bill of Sale. A formal instrument for the conveyance or transfer of goods and chattels. Blasphemy. In law, any false statement or language intended as a reviling of God. Blockade. In International law, the right to blockade the ports of an enemy in war, and to exclude neutral vessels. To stop all vessels from entering or leaving a port. Bona Fide. In good faith, honest. Bond. A writing under seal by which a person binds himself, his heirs, executors, and administrators, to pay a certain sum, or perform some act. Bonus. A premium paid to a grantor or seller. Bottomry. A contract by which the owner of a ship, or the master as his agent, binds the ship as security for the payment of money advanced for the use of the ship. GLOSSARY OF LAW TEEMS, S'S l»OUntj\ A premium offered to induce men to enlist into the public service. Breacll. A breaking, or infraction, as of a law, or any obliga- tion; non-fulfilment of a contract; a breach of promise of marriage. Burglary. The breaking and entering the dwelling-house of another in the night-time, with intent to commit a felony therein, whether the felonious purpose be accomplished or not. In Ameri- can law the crime includes offenses committed by day as well as by night, and in other buildings than dwelling-houses; there are various degrees of the crime in several of the States. By-LaiV. A private law made by a corporation for its own government; a law aside from the general or public law. Capias. " You may take;" a writ of process commanding the officer to take the body of the person named in it; also called Writ of Capias. Causa Mortis. On account of death. Caveat. Let him beivare. A notice given to an officer not to do a certain act until the party is heard in opposition. In patent laws, a description of some invention, designed to be patented, lodged in the office before the patent right is taken out, operating as a bar respecting the same invention from any other quarter. Certiorari. A writ directing the proceedings or record of a cause to be brought before a superior court. Chancellor. A judicial officer; the president, or chief judge of a court of chancery. Chattel. Every kind of property except the freehold, or the things which are a parcel of it; it is a more extensive term than good or effects. Chattels are personal or real. Check. An order for money, drawn on a banker or bank, payable on sight. Chose in action. A personal right to a thing not reduced to possession, but recoverable by suit at law. Chose in Possession. A thing in possession, as distinguished from a thing in action. Civil Death. In law, that which cuts off a man from civil soci- ety, or its rights and benefits, as banishments, outlawry, etc. Civil Law. In a general sense, the law of a State, city or country. Clearance. A certificate that a vessel has been cleared at the Custom House; permission to sail. 3i6 MANUAL OF THE LAW. Code. An orderly collection or digest of laws- Codicil. A supplement to a will which in some way modi- fies the will without repealing it. See Chapter on Wills, page 269. Collusion. An agreement between two or more persons to defraud a person of his rights by the forms of law. Common Carrier. One who undertakes for hire to transport goods from one place to another. See chapter on carriers, page 226. Common Law. The unwritten law, the law which receives its binding force from immemorial usage and universal reception. See page 3. Competency. Legal capacity or qualifications; fitness; as the competence of a witness. Compos Mentis, " Of sound mind." Compounding a Felony. To accept a consideration for for- bearing to prosecute. i Condonation. Forgiveness, either expressed or implied, by a husband or wife, for a breach of marital duty, with an implied condition that the offense shall not be repeated. Confidential Communication. One made by a client to his counsel, solicitor, or attorney, or vice versa, in professional confi- dence, and which he is not permitted to divulge, and cannot be required to divulge. \ Confiscate. To appropriate property as a penalty to the public , use. Consanguinity. Kindred by blood and birth between persons descended from the same stock or common ancestry. Consideration. The material cause of a bargain without which it is not binding on either party. See page 7. Consignee* The person to whom goods or other things are shipped. Consignment. The sending or delivering over of goods to another person for sale. Contempt. In law, disobedience of the rules, orders, or process of a court of justice, or of the rules of a legislative body. Contingent. Dependent for effect on something that may or may not occur; as, a contingent estate; contingent use. Continuance. The postponement of the proceedings in a cause from one stated term of a court to another. GLOSBAKT OF LAW TERMS. 317 Contract. See page 5. Contribution. Two or more persons being jointly liable for a debt, and one should pay more than his share, he may demand that the others contribute their shares respectively. Conveyance. An instrument in writing by which property, or the title to property, is conveyed or transmitted from one person to another. ConTCyancer. One whose business it is to draw and prepare the necessary paper for conveying property. Conrict. A person found guilty, after trial, of a crime alleged against him. Coparcenary. Partnership in inheritance; joint heirship; joint right of succession to an estate of inheritance. Copyright. The legal right which an author has in his own original production; the exclusive right to print, publish, and sell his own literary, scientific, or artistic productions, for his own benefit, during a certain period. Counsel. One who gives advice in legal matters; also, collect- ively the legal advocates united in the management of a case. Court. I. The hall, chamber, or place where justice is admin- istered. 2. The persons officially assembled under authority of law for the administration of justice. 3. A judge or judges sitting for the hearing or trial of causes. Covenant. A mutual agreement of two or more persons or parties, in writing and under seal, to do or to refrain from some act or thing ; a contract. Covert. Married. Crime. Any violation of law punishable in the name of the people, or which the State or Government will take notice of and punish. Crim. Con. Criminal conversation; illicit connection. Custom. Such a usage as by common consent and uniform practice has become the law of the place. Damages. The indemnity recoverable by a person who has sustained injury, either in person, property, or rights, through the act or default of another. Days of Grace. Certain days allowed to the acceptor of a bill or the maker of a note in which to make payment, in addition to the time contracted for by the bill or note itself. See page 285. Declaration. The paper, filed in an action at law, which 3i8 MANUAL OF THE LA'VT, states the facts and circumstances upon which the plantiff bases his claim. Dedication. Giving land to the public for some public use. De Facto. Actually ; in fact. Decree. The judgment or sentence of a court of equity. Deed. A written instrument under seal containing a contract or agreement, which has been delivered by the party to be bound and accepted by the obligee. See Chapter on Deeds, page 37. Default. The non-performance of a duty. Defeasance. An instrument which defeats the force or opera- tion of some other deed or estate. Defense. A forcible resistance of an attack by force. The denial of the truth or validity of a complaint. Defendant. A party sued in a personal action. De jure. From the law; by the law. Demise. A conveyance, either in fee, for life, or for years. Demurrer. An allegation that, admitting the facts of the pre- ceding pleading to be true as stated by the party making it, he has yet shown no cause why the party demurring should be compelled by the court to proceed further. De novo. Anew; afresh. Deponent. One who makes a deposition under oath; who gives written testimony to be used as evidence in a court of justice; affiant. Deposition. Testimony taken down in writing before some competent authority, and in reply to interrogatories and cross- interrogatories. See page 283. Derelict. A thing voluntarily abandoned or utterly forsaken by its proper owner. A tract of land left dry by the sea, and fit for cultivation. A ship deserted by its crew. Dernier resort. The last resort. Descent. Hereditary succession to an estate. The ordinary succession from parents. See Chapter XXXIII, page 256. Detainer. Keeping possession of that which belongs to another. Deviation. The voluntary departure of a ship, without neces- sity, from the regular course of the voyage insured, thus releas- ing the insurers from their responsibilities. Disable. To deprive of legal right or qualification; to render legally incapable. Disbar. To expel from tlie b.ar. GLOSSAEY OF LAW TERMS. 319 Dispossession. Deprivation of possession of property, by some process of law, and an order from the court. Disseizee. A person disseized, or put out of possession of an estate unlawfully. Dissolve. To annul; to rescind; as to dissolve an injunction. Distress. The act of distraining; taking possession of per- sonal chattels, without process of law, from one who does not pay rent; that which is taken by distraining to procure satisfaction. See page 248. Divorce. A dissolution of the marriage contract by a court or other body having competent authority. This is properly a divorce, and called technically, divorce a vinculo matri?nonti — from the bans of matrimony. The separation of a married woman from the bed and board of her husband — a mensa et thoro — from bed and board. Domain, i. Ownership of land; 2. Absolute proprietorship; 3. An estate or patrimony which one has in his own right; 4. Public Domain^ the territory belonging to a State or to the gen- eral government; public lands. 5. Right of Eminent Domain, Right which the State has to take private property for the public use. Domicile. A permanent home and principal establishment where one always returns after absence. Dominant Estate. The tenement or estate to which a servi- tude or easement is due from another estate, the estate over which the servitude extends being called the servient estate. See page 88, Dormant Partner. A partner who takes no share in the active business of a company or partnership, but is entitled to a share of the profits, and subject to a share in losses; — called also silent partner. Dower, i. The property with which a woman is endowed; especially that which a woman brings to a husband in marriage. 2. That portion of the real estate of a man which his widow enjoys during her life, or to which a woman is entitled after the death of her husband. See page 258. Due-Mil. A brief written acknowledgment of a debt. Duress. The state of compulsion in which a person is induced by the unlawful restraint of his liberty, or threatened violence, to make a deed or contract, or to discharge one, or to commit an oSense. $2& MANUAL OF THE LAW. Earnest. Money advanced as a pledge to bind the parties to the performance of a bargain. Easement. A liberty, privilege, or advantage without profit, which one proprietor has in the estate of another proprietor, dis- tinct from the ownership of the soil, as, a way through his lands, water-course, etc. See Chapter XI. Embezzlement. The fraudulent appropriation of anything that has been entrusted to one's care and management. Emblement. The right to the produce or fruits of land sown or planted. See page 15. Eminent Domain. (See Domain.) Enceinte. Pregnant, with child. Encumbrance. Every right to, or interest in, an estate to the diminution of its value, as a mortgage, a lien for taxes, a judg- ment, etc. Entail. An estate entailed, or limited in descent to a particular heir or heirs. Enter. To go into or upon lands, and take actual possession of them. Equity. A system of jurisprudence administered in Courts of Equity, supplemental to lav/, the object of which is to supply the deficiencies of the courts of law, and render the administration of justice more complete. Equity of Redemption. The advantage allowed to a mort- gagor of a> certain time to redeem lands mortgaged, after they have been forfeited at law by the non-payment of the sum of money due to the mortgagee at the appointed time. See Chapter VI. Error. A mistake in the proceedings of a court of record in matters of law or of fact. Escheat. The falling or reverting of real property to the State. Escrow. A deed or bond delivered to a third person, to hold till some act is done or some condition is performed, and which is not to take effect until then. Estate. The interest which any one has in lands, tenements, or other effects; as an estate for life, for years, at will, etc. See page 12. Estoppel. The stopping one's setting up a fact or denying one, where his previous conduct has implied the contrary. See page 20. GLOSSARY OP LAW TEKMS. S^' Eviction. Dispossessing a person of lands or tenements by due process of law. Evidence. That which is legally submitted to a competent tribunal, as a means of ascertaining the truth of any alleged mat- ter of fact under investigation before it. Exception. An objection taken in the course of a trial, or as to the decision of a judge in the course of a trial, or in his charge to a jury. Excise. The taxes or duties levied on commodities consumed at home; distinct from customs, which are duties levied on imports and exports. Execution. A judicial process for obtaining possession of anything recovered by judgment of law; execution of a will or deed. Executor, Executrix. One appointed by a person's last will to manage his estate and execute his will. See chapter on wills, page 264. Exemption. Free from that which binds others in respect to duty, taxes; exempt from service on jury, military service, etc. Ex officio. Officially; by virtue of the office. Ex parte. A statement is called Ex parte where only one of the parties gives an account of a transaction in which two or more are concerned. Ex post facto. Something done after another thing com- mitted before, or where a law is made to meet a particular offense committed previously. Ex post facto l^ws are prohibited by the U. S. constitution. Extempore. Off-hand; without delay or premeditation. Extortion. The unlawful taking, by a public officer, under pretense of his office, of any money or other gift, wlien none is legally due. Extradition. An international law, the delivering up of a party charged with crime, a fugitive from justice, to the foreign government to which he belongs. Eac-Simile. Do the same; a close imitation. False Imprisonment. The deprivation of a man's liberty in an unlawful manner. Fee. An estate of inheritance. Fee-Simpl9, When th? egtate is Iree and unconditional. An 3^2 MANUAL OF THE LAW. estate of inheritance. This is the completest ownership which a man can have in lands. Fee-tail. When the estate is hmited to certain heirs according to the will of the first donor. Felo de se. A self-murderer; a suicide. Felony. A heinous crime; including generally, all crimes for which the punishment is hanging or imprisonment in the State prison. Feme Covert. A married woman, under covert or protection of her husband and not liable to action. Feme Sole. A single or unmarried woman. Fiat. Let it be done. A short order or warrant of some judge for making out and allowing certain processes. Fiction. In law, a supposition that a thing is true, so that it may have the effect of truth as far as is consistent with equity. Fiduciary. One who holds property or other goods in trust for another; a trustee. Fieri Facias. That you cause to be made; a writ of execution. Finding. The result of a judicial examination or inquiry, especially into some matter of fact; that which is found by a jury; a verdict. Fine. A penalty for an offense committed. Fixture. Personal chattels attached or aflixed to real property. See Chapter VIII. FlaTV. Any error or omission in indictments, or declarations, which invalidates the proceedings. Forcible Entry and Detainer. The entering upon and tak- ing and withholding of land and tenements by actual force and violence, and with a strong hand, to the hindrance of the person having the right to enter. Foreclosure. The act or process of foreclosing, or depriving a mortgagor of the right of redeeming a mortgaged estate, or, as it is said, cutting him off from his equity of redemption. See Chapter VI, Sec. i6. Foreign Bill. A bill drawn in one country or State, and pay- able in another. Forfeiture. The losing of some right or property as a pen- alty for some misdeed or negligence. Forgery. The fraudulent making or alteration of any record, deed, or writing, to the prejudice of another man's right, particu- GLOSSAET OF LAW TERMS. 323 larly counterfeiting the signature of another with intent to defraud ; the making of a thing in imitation of another thing. Foruni. A court; a place of justice. Franchise. A particular privilege conferred by grant from a sovereign or a government, and vested in individuals. Fraud. An act or instrumentality by which unfair or unlaw- ful advantage is sought to be gained deceitfully. Using fraud in making contracts; a fraudulent bargain. Fraud vitiates every- thing. Freehold. Land and tenements held in fee-simple, fee-tail, or for life. Fugitive. One who has fled or deserted, and taken refuge under another power, or one who has fled from punishment. Fugitive from Justice. One who, having committed a crime in one jurisdiction, flees or escapes into another to avoid punish- ment. Garnishee. One in whose hands the property of another has been attached, in a suit against the latter by a third person; and who is garnisheed or warned of the proceedings, and has notice of what is required of him in reference to it. Garnishment. Warning, or legal notice to one to appear and give information to the court on any matter. Gift. A voluntary transfer of real or personal property, from one to. another, without any consideration. It can be perfected only by deed in case of real property, or by an actual delivery of possession in case of personal property. Good-will. The custom of any trade or business; the tendency or inclination of persons, old customers, and others to resort to an old established place of business; the advantage accruing from such tendency or inclination. Grant. A transfer of property by deed or writing; especially an appropriation or conveyance made by the government; as a grant of land. Gratis. Without reward or consideration. Guardian. One who lawfully has the care and custody of the person, or estate, of another. Guardian ad litem. A guardian appointed simply to attend to a suit for a minor or other person. Guaranty, i. To undertake or engage that, another person shall perform what he has stipulated; 2. To undertake to be 3^4 MANUAL or THE LAW. answerable for the debt or default of another; 3. To engage to answer for the performance of some promise or duty by another in case of a failure by the latter to perform. Habeas Corpus. Tou may have the body. A writ having for its object to bring a party before a court or judge; especially, one to inquire into the cause of a person's imprisonment or detention by anotlier, with the view to protect the right of personal liberty. Mabendum. To have. One of the principal parts of a deed, so called because it begins with this word, signifying to have. See chapter on deeds, page 38. Habitual Drunkard. One so given to the use of intoxicating drink that he has lost the power of controlling his appetite for it. (18 Pa. St., 172.) Half-blood. The relationship existing between persons who have but one common parent. A man's two sons by different wives are brothers of the half blood. At common law they never inherit from each other. By the statutes of many of the States they do. Hearsay Evidence. The testimony that a witness may give upon what he may have heard, but of which he has no personal knowledge. Heir. One who receives, inherits, or succeeds to the owner- ship of any real property after the death of its owner. Heir Apparent. One whose right to an estate is indefeasible if he survives the ancestor, in distinction from Presumptive Heir. Heir at Law. One who after his ancestor's death has a right to inherit his estate. Heir by Devise. One who has no other right or interest in the lands devised to him by will than the will of the testator gives him. Heir Presumptive. One who, if the ancestor should die immediately, would be his heir, but whose right to the inheritance may be defeated by the birth of a nearer relative, or by some other contingency. Heiress. The female heir to a man having an estate of inher- itance in lands; and where there are several joint heirs they are called Co-Heirs or Co-Heiresses. Heirloom. A chattel whidi, contrary to the general rule regarding chattels, descends to the heir instead of going to the jidministrator. See page 10. GLOSSARY or LAW TEEMS. S^S Hereditament. All the property that may be inherited or come to the heir; lands, tenements, all movable things, whether corporeal or incorporeal, which go to the heir. Highway. A public or free street, road, or way by land or water, open to all. Homicide. The killing of any human being by the act of man, of which there are three kinds: Justifiable^ if caused by unavoidable necessity; excusable^ if it happened by misadventure; and felonious, if done without excuse. Homestead. A person's dwelling-place, with that part of his landed property which is about and contiguous to it. Hnsll Money. A bribe to secure silence; money paid to a per- son not to reveal information or disclose facts. Householder. The head of a family living with him in the same house. Housekeeper. One who occupies a house. He must occupy the whole of it. If he has simply a suite of rooms he is not a housekeeper. Hue and Cry. A pursuit of one who has committed felony. Husband. A man who has a wife. Hypothecate. To confer on a creditor a right in or to a thing, by which the creditor obtains the power to cause that thing to be sold for the discharge of a debt or engagement out of the pro- ceeds; to subject, as property, to liability for a debt or engage- ment without delivery of possession; to mortgage, as ships or other personal property. Idiot. One who has no understanding or intelligence from his birth, and therefore is presumed by law never likely to attain any. The law declares that a man is not an idiot if he has any glimmer of reason, so that he can tell his parents, his age, or such common matters; but a man who is born deaf, dumb, and blind is looked upon by the law in the same light as an idiot. Ignoramus. "We are ignorant" — written on a bill of indict- ment by a grand jury, when the evidence is not sufficient to put the person on trial. Illicit. Not allowed or permitted by law; as an illicit trade; an unlawful and mischievous transaction. Illegitimate. Contrary to law. Usually applied to children born out of wedlock. See page 259. Illusion. A species of insanity. 23 3*6 MANUAL OF THE LATf, Imbecility. A species of insanity, usually congenital or exist- ing from birth. Immemorial. " Time whereof the memory of men runneth not to the contrary." Applied to the possession of land, etc. Impanel. The writing down of the names of a jury; to com- plete, or enroll, as a list of jurors in a court. Impeach. To charge with a crime or misdemeanor; to accuse; especially to charge an officer with misbehavior in office; to cite before a tribunal for judgment of official misconduct; to impeach a judge, etc. Impeachment. The act of impeaching. The accusation of a person for crimes and misdemeanors, and impropriety of official conduct. A written accusation by the House of Representatives to the Senate of the United States. Impose. To lay as a charge; obligation, tax, duty; to enjoin; to impose, as a tribute. Imports. Duties or taxes laid, on goods imported into a country, by the government. Imprisonment. The act of imprisoning; confinement in a prison; deprived of liberty. False imprisonment is confinement of the person, or restraint of liberty, without legal or sufficient authority. Improvement. In Patent laws, the term applied when an addition of some useful thing to a machine, manufacture, or com- position of matter is made. Incapable. Unqualified in a legal sense ; not having the con- stitutional qualifications. Incendiary. Any person who sets fire to a building. Incident. Something appertaining to, and depending on an- other, called the principal. Incompetency. Want of legal fitness to be heard or admitted as a witness, or to act as a juior, in the trial of a cause. Incorporeal. Existing only in contemplation of law; not capable of actual visible possession. Incorporeal Hereditament, a right issuing out of a thing corporeal. Something that is inher- itable, but is not visible, like a right of way or other easement. Incumbrance. A burden or charge upon property ; a legal claim or lien upon an estate. Indemnity. Exemption from damages or loss; security to save harmless. Act of Indemnity, a law passed in order to relieve p*"'- GLOSSAllY OF LAW TEEMS. 337 sons from some penalty to which they are liable in consequence of acting illegally, or in consequence of exceeding the limits of their strict constitutional powers. Indenture. An agreement or contract made between two or more persons; so called because originally the papers or parch- ments were indented or cut scallopwise, so as to correspond with another writing containing the same words. Indicia. Discriminating signs; marks; badges; tokens; indi- cations. Indictment. A written accusation and formal charge of a crime preferred to a court by a grand jury. Indorse. To write one's name upon the back of a paper, for the purpose of transferring it, or to secure the payment of a sum of money ; to guarantee the fulfilment or performance of an obli- gation. Inducement. Any matter stated by way of explanation, pre- amble, or introduction to the main allegations of a pleading. In esse, in being. In extremis. In the last moments; near death. Infamy. The loss of character, or public disgrace, which a convict incurs, and by which a person is at common law rendered incompetent as a witness. Infancy. The state or condition of one under age; or under the age of twenty-one years; nonage; minority. Infringement. In Patent law, the act of violating the right of another; the unlawful interference with a patent or copyright Inherit. To take as heir at the death of the ancestor. Inheritance. A perpetual right to an estate in a man and his heirs; an estate which a man has by descent as heir to another; an estate derived in due course of law. Injunction. A writ granted by a court of equity, and, in some cases, under statutes, by a court of law, whereby a party is required to refrain from certain acts. In propria persona. In his own person. Inquest. An examination under authority of a court; an inquiry into any matter, civil j>r criminal, by a jury. The grand jury is often called the grand ipquest. Inquiry. Seeking for information; examining into facts. iVri^ of Inquiry is an instrument in writing issued in certain 3^8 MANUAL OF THE LAW. actions at law, where the defendant has suffered judgment to pass against hitn by default. Insanity. This is very hard to define. It is a dethronement of the reason. A departure from the states of feeling and modes of thinking usual to persons in health. See Chapter on Wills. Insolvent. One who can not pay his debts; a condition of bankruptcy. Insolvent Law. A law affording relief to insolvent debtors. Insurance or Assurance. A contract between parties, for a stipulated premium, to make good any loss which another may sustain by fire, shipwreck, or other cause specified in the policy of insurance. , Interdict. An order of a court prohibiting some act, having the like purpose and effect with a Wmt of Injunction. Interlocutory Order. An order which does not decide the cause itself, only some intervening matter relating to it. International Law. The law that pertains to the friendly relations between nations. It is founded upon moral right. Civ- ilized nations acknowledge it to be binding upon them. Inter nos. Between ourselves. Interregnum. A space between two reigns. In terrorem. By way of warning. In transitu. On the passage. Interest. The right which a man has in a thing. The price which is paid for the use of money. For lawful rales of interest the different States see pages 60-61. Intervention. The act by which a third person, to protect his own interest, interposes and becomes a party to a suit pending between other parties. Intestate. A person who dies without making a valid will. Not devised or bequeathed. Inventory. A schedule of all the goods and chattels, and sometimes the real estate of a deceased person. Investiture. The action of investing; giving possession. The grant of land or a feud was perfected by tue ceremony or corpo- real investiture, or open delivery of possession. Invoice. In commercial law, a written account of goods sent by a merchant to a purchaser, with the value and charges appended. Ipso Jure. By the law itself. Issue. The children begotten between a man and his wife. GLOSSARY OF LAW TERMS. 32$ In pleading, an issue is a material point affirmed by one party and denied by tlje other. JeOf ardj. Peril or danger. Jettison or Jetsam. The throwing out of a vessel, from necessity, of a part of the cargo. The thing thrown out. Jointure. A settlement of lands and tenements made over by the husband to the wife, to be enjoyed after his decease. Judgment. The decision of the court pronounced by the judge as the final result of proceedings before him. An interlocutory judgment is one given in the middle of the cause, as distinguished from a final judgment or one that puts an end to the action. Judicature. The power of distributing justice by legal trial and determination. A court of justice. Extent of jurisdiction of a judge or court. Judiciary. That branch of government in which judicial power is vested. Jurisdiction. The legal power or authority invested in any individual or court, of doing justice in the causes brought before them. The territory within which the court acts. Jurisprudence. The science of law; a knowledge of the laws, or skill in interpreting and applying them; also the laws themselves. Jury. A body of men, selected according to law, and sworn to inquire into and try any matter of fact, and to declare the truth of it on the evidence presented. Jury bf Inquest. Commonly called a Coroner's Jury. Sum- moned in cases of sudden or violent death, to try into the cause. Jure gentium. By the law of nations. Justiiialble Homicide. The intentional killing of a human being, but under such circumstances as the law holds sufficient to excuse the person who commits it. Justification. The showing of a sufficiently good reason in a court why one has done the thing for which he is called to answer. Kidnapping. The forcible abduction of a person from his own country. It is not now essential that he be carried out of the country. (8 N. H., 550.) Kindred. Blood relations. Laches. Neglect to do a thing at the proper time. Negli- gence from which damages may arise. S3<^ ilANtJAL 0*- Tll£ Law. Landing Charges. Fees paid on goods unloaded from a ves- sel. Landlord and Tenant. See Chapter XXX., page 244. Land. Ground, soil, earth. See page 9, Sec. 2. Lapsed Devise, or Legacy. A devise or legacy which fails or takes no effect, in consequence of the death of the devisee before that of the testator, or for other cause. Larceny. The felonious and fraudulent taking away the per- sonal goods of another. Grand and Petit Larceny are distinctions depending on the nature and value of the property taken. Law Merchant. The body of rules and usages in force in matters of commerce. Law of Nations. Same as international law. Lease. A letting of lands or tenements to another for a term of years, or at will, for a rent or other compensation. See Chap- ter XXX. Leasehold. Lands or tenements held by virtue of a lease, or conveyance, from the party having a right so to dispose of them. Legacy. A bequest or gift by will of any personal effects; the person bequeathing is called the testator^ and the person to whom it is bequeathed the legatee. Legal Tender. Money which the law makes legal. Legitimate. Lawfully begotton or born; born in wedlock; as, legitimate heirs or children. In accordance with established law. Letter of Advice. A letter written by a merchant to his cor- respondent advising or giving him notice of what bills he has drawn upon him. Letter of Attorney. A writing whereby a person constitutes another to do a lawful act in his stead, as to receive debts, etc. Letters of License. An instrument or writing granted by a person's creditors, allowing him a certain time for the payment of his debts, by which means he is enabled to prosecute his business 1','ithout legal molestation. Letter of Credit. A letter from one merchant or banker to anotlier, in another country, directing the latter to giVe credit to the bearer, for which the former becomes responsible. Letters of Marque and Ileprisal. A commission granted by a government to an individual to take the property of a foreign QLOSSARt OF LAW TERMS. 33 1 State, or of its subjects, as a reparation for some injury committed by such State. Letters Testamentary. An instrument granted by the Judge of Probate to an executor after probate of a will, authorizing him to act as executor. Levari Facias. That you cause to be levied; a writ of exe- cution. Leyy. The taking or seizure of property on executions to satisfy judgments, or on warrants for the collection of taxes. Lex Loci. The law of the place. Lex Talionis. The law of retaliation in kind. Libel. A written and published false statement calculated to injure another by bringing him into ridicule or contempt. Lien. A legal claim; a charge upon real or personal property for the satisfaction of some debt or duty ; the right which a credi- tor has to retain the property of his debtor, until the debt has been paid. Life Estates. Estates not of inheritance, but simply during the life of the possessor. Limitation. A certain period limited by statute after which the claimant shall not enforce his claims by suit. It is generally six years for personal actions and 20 years for real actions. Loan. A bailment without reward. Loco Parentis. In the place of the parent. L. S., Locus Sigilli. The place of the seal. Lode. A metallic vein, or any regular vein or course. Lynch Law. The practice of punishing men for crimes by private, unauthorized persons, without a legal trial. This term is derived from a Virginia farmer, named Lynch, who thus took the law of punishing offenders into his own hands. Maihem^ or Mayhem. A corporal wound or hurt, by which a man loses the use of a limb or member of the body ; deprivation of something essential. Mainprise. The surrendering a person into friendly custody, upon giving security that he shall be forthcoming at the time and place required. Maintenance. In Criminal law, an officious intermeddling between others, by assisting either party with money or means to prosecute or defend. Majority. Being of age, i. e., twenty-one years or more. 332 MANUAL OF THE LAW. Malfeasance. The doing of some act which a. person ought not to do. Malicious. With wicked or mischievous intentions or motives. Maluin in se. Bad in itself; an evil in its own nature. Mandamus. "We command." A writ issued by a superior court and directed to some inferior tribunal, or to some corporation or person exercising public authority, commanding the perform- ance of some specified duty. Mania. A kind of insanity. Manifest. A list or invoice of a ship's cargo, containing a description by marks, numbers, etc., of each package of goods, to be exhibited at the Custom House. Manslaughter. The unlawful killing of a man without malice, express or implied. Manumission. Making a slave free. Mayor. The chief executive magistrate of a city. Maxim. A principle of law universally admitted. Mesne Process, An intermediate process, issuing pending the suit, upon some collateral matter; also, all such processes as inter- vene between the beginning and end of a suit. Messuage. A dwelling-house with its adjoining land, appro- priated to the use of a household. Misdemeanor. An offense less than a felony. Crimes and Misdemeanors are synonymous terms, though, in common usage, the word crime is made to denote such offenses as are of a more atrocious kind; while smaller faults and omissions of less conse- quence are comprised under the name of Misdemeanors. Misfeasance. The improper doing of an act which a person might lawfully do. Mitigation of Punishment. Remitting the severity of sen- tence. Moiety. One-half, or one of two equal parts; as a Moiety of an estate, of goods, or of profits. Mortgage. A conveyance' of property, upon condition, as security for the payment of a debt or the performance of a duty, and to become void upon payment or performance. See, Chapter VI. Motion. In law, an application in court either by the parties themselves or their counsel, in order to obtain some order or rule of court. fiLOSSAKt OP LAW TEEMS. 333 Movables. Property not fixed or real ; personal chattels ; goods that may be moved from place to place. Municipal. Pertaining to city. Municipal Law, The law of a nation or State as distinguished from international law. See page i. Murder. The act of willfully and feloniously killing a human being with malice prepense. Mutatis Mutandis, Changing what ought to be changed. Mutiny. A revolting from lawful authority, particularly among sailors and soldiers; to rise against one's superior officer. Navigable, Capable of being navigated. See page 82. Naturalization. The act by which an alien is made a citizen of the United States. Next of Kin. This term is used to signify the relations of a person who dies without a will. Nisi Prius. Unless before. Applied to terms of court; held generally by a single judge, with a jury, for the trial of jury causes. Nolle Prosequi. An entry made on the record by the plain- tiff, or prosecuting attorney, that he will not further prosecute the suit, Nole Contendre. A plea, by the defendant, in a criminal prosecution, equivalent to that of guilty, for all the purposes of that prosecution. Non-age, An age less than twenty-one. Non Compos Mentis. Not of sound mind, memory, or under- standing. Non est factum. The general issue in an action of debt on bond. Non est inventus. The return of a sheriff on a writ, when the defendant is not found in his county. Nonfeasance. An omission of what ought to be done. Non pros. A judgment entered against the plaintiff in a suit where he does not appear to prosecute; a discontinuance of further proceedings in criminal cases. Non-suit. The name of a judgment given against the plaintiff when he is unable to prove his case, or when he refuses or neglects to proceed to the trial of a cause after it has been put at issue. Non-user. Neglect to make use of a thing. Notary Public. A public officer who attests, or certifies, 3o4 Manual OJ? tilfi LaW. deeds, and other writings, usually under his official seal, and to make them authentic in another country. His duties chiefly relate to instruments used in commercial transactions. See Chapter on Notaries, page 278. Note of Hand. A popular name for a promissory note. Nuildum pactum. A contract not binding in law from want of consideration. Nuncupative Will. An oral or verbal will made in expecta- tion of death, before witnesses, and afterwards reduced to writing. Nuisance. Any annoyance which tends to the hurt or incon- venience of another. See Chapter XX., on Nuisances, page 170. Nulla Bona. The return made to a writ of execution by the sheriff when he can find no goods upon which to levy. Nunc pro tunc. This means that a thing is done at one time which ought to have been done at another. Orders and judg- ments are sometimes entered nunc fro tunc. Oath. A pledge given by the person taking it that his attesta- tion or statement is made under an immediate sense of his respon- sibility to God. A solemn invocation to Deity. Oath of Allegiance. The oath which the person takes when about to become a citizen of the .United States. Obligation. A bond containing a penalty on condition of not performing certairt covenants annexed. Onus Prohandi. The burden of proof. Ordeal. An ancient form of trial to determine guilt or inno- cence practiced by the rude nations of Europe, and still practiced in many parts of the East. Ordinance. A statute or law; a rule established by authority Usually applied to the laws of a city. Ordinary. An officer who has original authority and powers in his own jurisdiction. A judicial officer having powers such as a surrogate or judge of probate. Original Writ. The beginning or foundation of a suit; and is a mandatory order from the court or judge. Overt Act. An open act, capable of being sustained by legal proof. Oyer and Terminer. A commission directed to the judges and other gentlemen of the courts to which it is issued, by virtue whereof they have power to hear and determine treasons, felonies, etc. GtOsSAbt of Lwv ti:fe5ia. 33!> «» ■ ■ Oyez. Hear ye. An expression with which crier opens court. Pains and Penalties. In English law, an act of Parliament to inflict pains and penalties beyond or contrary to the common law, in the particular cases of great public offenders. Pandects. An abridgment of Roman Law made by order of the Emperor Justinian in A. D. 533. Par. Equal. " Worth 100 cents on the dollar." Stocks are at par when they sell for their nominal value. Parcenary. Holding lands and tenements in copartnership by two or more persons. A joint tenancy or tenancy in common. Pardon. An act of Grace. Freeing a prisoner from penalty. Parliament. The legislative branch of the Government of Great Britain. It is composed of the House of Lords and House of Commons. Parol. By word of mouth; an oral declaration; as Parol evi- dence. Parol Contract. Any contract not of record or under seal, whether oral or written. Parricide. One who murders his parent. Particeps Criminis. A partaker in the guilt of another, not as a principal, but an accessory. Parties. Persons. Those who take part in the performance of an act, pai'ties to a contract, parties to a suit. Partition. The division of lands, tenements, etc., among co-heirs or parceners. Partnership. An association of two or more persons to carry on some branch of business in common; a firm or house. Silent ■partnerships one in which capital only is furnished by one or more partners, having no action, direction, or co-operation in the busi- ness. Passport. A license or letter from one government to another granting liberty to a person to pass through a foreign country. Patent. A privilege from the government granted by Let- ters Patent, conveying to the individual or individuals therein specified, the sole right to make, use, or dispose of some new invention or discovery, for a certain specified time. Patentee. One to whom a patent is granted. Paternity. The state or condition of a father. Patricide. One who kills his father. Patroon. In N. Y. the lord of a manor. 33S MANtAL OF THE LAW. Pauper. One so poor that he must be supported at public expense. Payment. The fulfillment of a promise. The performance of an agreement. Penal Code. A code of laws concerning the punishment of crimes. Penalty. A fine or forfeiture by way of punishment. The law inflicts Penalties, sometimes pecuniary and sometimes per- sonal. The non-fulfillment of a bond or other agreement sub- jefts the party to the penalties therein expressed. Per capita. By the head. A division equally among indi- viduals. Peremtoi'y Challenge. A challenge or right of challenging jurors, without showing cause. Perjury. The act of knowingly and willfully taking a false oath in a court of justice, by a witness lawfully required to depose the truth in a matter of some consequence to the point in question- A false oath, therefore, taken before no court, or before a court incompetent to try the issue in question, does not constitute the offense of perjury. Per se. By itself. Piracy. The act or crime of robbing on the high-seas; the taking of property from others by open violence, with intent to steal, and without lawful authority, on the sea. Placer. A gravelly place where gold is found. Plaintiff. The person who commences an action or suit at law. Plea. That which is alleged by a party in support of his cause; the defendant's answer to the plaintiff's declaration. Pleadings. The mutual altercations between the plaintiff and defendant, or written statements of the parties in support of their claims. Pledge. Personal property delivered to, or deposited with, another as security for a debt or engagement. Dead Pledge, a mortgage. Living Pledge, the conveyance of an estate to another for money borrowed, to be held by him until payment out of the rents and profits. Pluries. Very often a third writ after two have issued against a defendant. Police. That branch of administrative justice which extends GLOSSABT OP LAW TEBM8. 337 to the prevention of crimes, by watching over public order, pre- venting breaches of the peace, removing' nuisances, etc., of a city or incorporated town. Policy of Insurance. The instrument by which a contract of indemnity is effected between the insurer and the insured; the writing containing the terms or conditions of a contract of insur- ance against loss by fire, at sea, or on life. Poll. An old word signifying head. Thus a poll tax is a tax on each person. Posse Comltatus. The armed power of the country, or the attendance of all persons charged by sheriff to assist him in the suppression of riots, etc. Postea. Afterward; the endorsement of the verdict upon the record. Post-Mortem. After the death. Pound. A place where stray animals may be placed until reclaimed according to law. Practice. The form, manner, and order of conducting and carrying on suits and prosecutions through their various stages, according to the principles of law, and the rules laid down by the courts. Precedent. A judicial decision which serves as a rule for future determination in similar or analogous cases; an authority to be followed in courts of justice. Precept. A command in writing, sent out by a magistrate for bringing a person or a record before him. Pre-emption. The right given to settlers upon the public lands of the United States to purchase them at a limited price in pref- erence to others. See page 23. Premium. The consideration for a contract of insurance. Prescription. The mode of acquiring property by long con- tinued use. See page 19. Presentment. A declaration or report made by a grand jury or others, of any offense to be inquired of in the courts to which it is presented. Presumption. An inference made by law of certain facts from certain other facts. Presumptiye Evidence. That which is derived from circum- stances which necessarily or usually attend a fact, as distinct from direct evidence or positive proof. 338 MANUAL OP THE LAVT. Presumptiye Heir. One who would inherit an estate if the ancestor should die with things in their present state, but whose right of inheritance may be defeated by the birth of a nearer heir before the death of the ancestor. Prima Facie. On its face. At first appearance. Prima Facie Evidence. That evidence which is sufficient to establish the fact, unless rebutted or contradicted. Primogeniture. A right by which the estate goes to the eldest son or male heir, in preference to the other children or heirs. It does not exist in the United States. See page 256. Probate. Official proof before a competent officer that the instrument offered, purporting to be the last will and testament of a person deceased, is indeed his lawful act. Probate Court. A court for the probate of wills. See page 276. Process. The whole course of proceedings in a cause, real or personal, civil or criminal, from the original writ to the end of the suit. Original Process is the legal method of compelling the defendant to appear in court. J\fesne Process is that which issues, pending the suit, upon some collateral or interlocutory matter. Final Process, a writ of execution in an action of law. Proctor. An officer employed in Admiralty causes, answering to an Attorney at common law, and to a sohcitor in equity. Pro Rata. According to a proportion. Prosecution. The institution and carrying on of a suit in a court of law or equity, to obtain some right, or to redress or pun- ish some wrong; the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing him to final judg- ment on behalf of the State or government, as by indictment. Pro TantO. For so much. Protest. In Maritime law, a declaration made by the master of a vessel, before a notary, consul, or other authorized officer, upon his arrival in port after a disaster, stating the particulars of it, and showing that any damage or loss sustained was not owing to the fault of the vessel, her officers, or crew, but to the perils of the sea, etc. The act of a notary public on behalf of the holder of a bill or note, protesting against all parties liable for any loss or damage by the non-payment of the bill or note. See Chapter on Notaries Public. Proxy. One who acts or stands for another in his absence. GLOSSAKY OP LAW TERMS. 339 Puberty. The age in boy of 14 and in girls of 12 years. Putative. Reputed, supposed. The word is applied to the father of an illigitimate child. See page 259. Quare Clausuiu fregit. " Why he broke the close." An action for damages to real estate. Quarantine. The period of forty days, or less, during which time the crew and ship infected with contagious disease are obliged to remain in some appointed place, without holding intercourse with the shore. The time of quarantine varies in different coun- tries. Quash. To abate, to annul, or to make void ; as to quash an indictment Quasi. A Latin word meaning, almost, similar to. Quit Claim. A form of deed, explained on page 41. Quid pro quo. A mutual consideration. Quo animo. With what intent. Quo Warranto. A writ to inquire by what authority, right, or title, any person or corporation holds a franchise, exercises an office, and the like. Quorum. The number of persons needed to legally transact business in an assembly. See page 3(7. Ratification. The confirmation of an act, or decision. Giving force to a contract. Confirmation of a treaty. Ileal Property. Land and the things fixed thereto, perma- nent, or immovable, real estate as opposed to personal or movable property. Realty. Same as real property. Real Action. An action for the recovery of real property. Receiver. A person appointed to take charge of the estate and effects of a corporation, and to do other acts necessary to the winding up of its affairs. Recognizance. A bond or obligation acknowledged in a court before a judge, with a condition which requires the one making it to do some specified act. Recoupment. Reduction of the plaintiff's damages in an action because of some claim which the defendant has against the plain- tiff. Reference. The act of submitting a matter in dispute to the judgment of one or more persons for decision. The process of 34° MANUAL OF THE LAW. sending any matter for inquiry to an officer in order that he may ascertain facts and report to the court. See Chapter XXXII. Remainder. An estate in lands, tenements, etc., to be enjoyed after the expiration of another estate. lleilt. Price paid for use of land, etc. See page 248. Replevin. An action to recover possession of goods and chat- tels which have been wrongfully taken or detained. Replication. The plaintiff's answer to the defendant's plea. Reprieve. A warrant for suspending the execution of sentence upon a criminal. Rescission. The act of annulling a decree, judgment, or con- tract. Rescue, The violent taking away or causing to escape one that is taken by lawful authority. Residuary Clause. That part of the testator's will in which the residue of his estate is disposed of. Residuary Devisee. The person to whom the residue of real estate is devised by a will. Residuum. The remainder. Res Integra. An entire matter. Res Judicata. That which has been already decided by the Coui't. Respondent. The party who makes an answer to a bill or other proceeding in chancery. Retainer. The act of a client by which he engages an attor- ney or counselor to manage a cause, either by prosecuting it when he is plaintiff or defending it when he is defendant. The retaining fee. Riot. A tumultuous disturbance of the peace by three persons or more, assembling of their own authority, with an intent mutually to assist each other against any one who shall oppose them in the execution of some enterprise of a private nature, and afterward actually executing the same in a violent and turbulent manner to the terror of the people, whether the act intended were itself law- ful or unlawful. Riparian. Relating to rights in natural watercourses. See pa;:;os 105-1 1 1. Robbery. The felonious and forcible taking from the person of another goods or money to any value by violence or putting him in fear. GLOSSARY OF LAW TERMS. 341 Sale. An agreement by which one of two contracting parties, called the seller, gives a thing and passes the title to it in exchange for a certain price in current money to the other party, who is called the buyer or purchaser, who on his part agrees to pay such price. See Chapter XXV, page 209. Salrage. A compensation given by the maritime law for ser- vices rendered in saving property or rescuing it from impending peril on the sea, or wrecked on the coast of the sea, or in the Unitd States on a navigable river or lake where interstate or for- eign commerce is carried on. Scintilla. A spark; a very small quantity. Scienter. An allegation of knowledge on the part of the defendant which is necessary to render him liable. See page 161. Scroll. A mark, intended to supply the place of a seal, made with a pen or other instrument of writing. Seal. An impression upon wax, wafer, or some other tenacious substance capable of being impressed. Search Warrant. A warrant requiring the officer to whom it is addressed to search a house or other place therein specified for property therein, alleged to have been stolen, and, if the same shall be found upon such search, to bring the goods so found, together with the body of the person occupying the same, before the justice or other officer granting the warrant, or some other justice of the peace or other lawfully authorized officer. Sedition. The raising commotions or disturbances in the State. Seisin. Possession with an intent on the part of him whe holds it to claim a freehold interest. Seryient. The term applied to the estate upon which an ease- ment exist. The estate to which the easement belongs is called the dominant estate. See Chapter on Easements, page 88. Separation. A cessation of cohabitation of husband and wife by mutual agreement. Set-off. A demand which a defendant makes against the plaintiff in the suit, for the purpose of liquidating the whole or a part of his claim. Sine die. "Without day." Applied to an adjournment Slander. Words spoken which are injurious to the character of another. Solicitor. A person whose business is to be employed hi th« care and management of suits in courts of chancery. 84 342 MANUAL OP THE LAW. Specialty. A written agreement sealed and delivered. Specification. A particular and detailed account of a thing. SS. Scilicet: that is to say. See page 281. Statute. A law established by the act of the legislative power. Stoppage in Transitu. A resumption by the seller of the possession of goods not paid for, while on their way to the vender, and before he has acquired actual possession of them. See Chap- ter on Sales. Page 209. Sub-Lease. A lease by a tenant to another person of a part of the premises held by him. Subpoena. A process to cause a witness to appear and give testimony, commanding him to lay aside all pretences and excuses and appear before a court, or magistrate therein named, at a time therein mentioned, to testify for the party named, under a penalty therein mentioned. Suffrage. Vote; the act of voting. Suicide. Self-destruction. Suit. An action. Summon. To notify the defendant that an action has been instituted against him, and that he is required to answer to it at a time and place named. Surety. A person who binds himself for the payment of a sum of money, or for the performance of something for another who is already bound for the same. Surrogate. Same as Probate. See Chapter XXXVI. Tenant. One who holds lands by any right, particularly one who occupies lands or tenements at a yearly rent, for life, a term of years, or at will. See Chapter XXX. Tenure. The condition on which lands and tenements are held. Testament. The solemn act whereby a man declares his last will as to the disposal of his estate after his death. Another name for a will. Title. A right which a person has to the possession of prop- erty. See page 11. Tort. Any private wrong or injury; a wrongful act for which an action will lie. It is not the breach of a contract. Trade-Mark. A symbol, emblem, or mark used by a manu- facturer on his goods, the legal right in which is recognized V*< law. GLOSSABY or LAW IEEM3. 343 Trespass. Any wrong done by one man to another, either to his person or his property. See Chapter XIV for trespass upon real property. Trust. A right of property, real or personal, held by one party for the benefit of another. Trustee. One who has an estate or money put into his hands for the use of another. Turnpike. A highway over which the public have a right to travel upon payment of toll, and on which the parties entitled to the toll have the right to erect gates to insure its payment. (i6 Pick., 175.) Usury. The taking more interest for the loan of money than is allowed by law. Yagrants. Beggars, strolling and idle persons, who wander from place to place, without any regular settlement. Tenue. The county in which the cause i» tried. The place from which the jury come. Terdict. The determination of a jury upon any cause, civil or criminal. Yice rersa. On the contrary; on opposite sides. Yi et armis. By force and arms; by unlawful means. Yiya TOCe. Verbally. Yinculo Matrimonii. From the bonds of matrimony. A complete divorce. Yoir dire. A term applied to the examination of a witness previous to his examination in chief, to ascertain whether he is in any way incompetent to give evidence in relation to the matter on trial. Wairer. A relinquishment of, or a refusal to accept a right Ward. A person placed under the care of a guardian. Warrant. A writ issued by a justice of the peace or other authorized officer, directed to a constable or other proper person, requiring him to arrest a person therein named, charged with committing some offense, and to bring him before that or so other justice of the peace. Warranty. See Chapter on Sales. Waste. Injury done to land by the tenant. See Chapter XV. Will. The disposition of one's property, to take effect after death. 314 MANUAL OF THE LAW. Witness, One who testifies under oath to what he knows. Writ. A mandatory precept issued by the authority and in the name of the Sovereign or the State, for the purpose of compelling she defendant to do something therein mentioned. PART III. FORMS FOR DRAWING THE VARIOUS IN- STRUMENTS IN COMMON USE. FORMS IN COMMON USE. Importance of HaTing Correct Forms. The importance ,t having proper forms to follow in the drafting of legal instru- ments can hardly be over estimated. The validity of a contract may often depend upon the w^ords with which it is expressed. Valuable property rights may be lost by carelessness or inaccuracy in drawing a document. Uncertainty wii always prevail where new and untried forms are made use of. It will be best, therefore, always to follow the old and well-tried precedents even though they may sound a little queer. Abstracts of Title. An abstract of title is a document pre- senting in connected form the substance of the various instruments on record affecting the ownership of a given piece ul reai estate. It is a brief history of the title which the seller proposes to convey. It should commence, if possible, with the patent from the United States, though it may be sufficient if it dates back to the title in some person known to have held the land for a long series of years or whose title has been pronounced good in the courts. It should, from that time down, state every matter of record affecting the land. Of course there may be many facts affecting *he title to lands which are not evidenced by the records. The abstract may eachibit a good title and yet there may be serious defects. Mar- riage may have created an undisclosed right of dower or a seller may have been kept out of possession by an adverse claimant who may have gained title, hence absolute dependence cannot be placed upon an abstract, though it will greatly aid in determining the question of title. See Chapter on Examining Title, page 46. There are numerous styles of drawing these initruments differing in order of arrangement, but the following form will be found, perhaps, as useful as any: 348 MANUAL OV THE LAW, ABSTRACT OF TITLE to Lots /, 2, and j, in Block jj, of the Labrosse Farm, in the City of Detroit, State of Michigan. Patent. Dated April i, 1819. Conveys land described by metes and bounds, known as Private Claim 46, Wayne County, Michigan. Recorded in the office of the Register of Deeds for said County April 14, 18 19, in Book 5 of Deeds, page 74. The United States to Peter Labrosse. Peter Labrosse and Jennette, his wife, to Lucius Abbott and Charles C. Trowbridge. Warranty Deed. Dated Dec. 17, 1829. $3,500. Conveys Private Claim 46, known as the Labrosse Farm. -Re- corded Dec. 18, 1829, in Book 12 of Deeds, page 786. Plat of the Subdivision of the Labrosse Farm, showing the sub- division of the same into City Lots. Acknowledged by Lucius Abbott and Charles C. Trowbridge. Recorded Dec. 12, 1835, in Book 13 of Deeds, on page 85. Charles C. Trowbridge and wife, Lucius Abbott and wife, to EJoti }?'arn?worth. Elon Farnsworth and wife, to Thomas G. Mower, Thomas G. Mower and wife, to William T. Jacobs. William C. Jacobs to William L. Carpenter. Deed of Bargain and Sale with cove- nant against grantors' own acts. Da- ted Dec. 17, 1835. $1,850. Conveys Lots I, 2, and 3, in Block 35, of the Labrosse Farm and other property. Recorded in Book 25 of Deeds, page 370- Warranty Deed. Dated May 30, 1836. $2,000. Conveys Lots I, 2, and 3, in Block 35, as above described. Re. corded in Book 29 of Deeds, on page 73- Mortgage. Dated Oct. 3, 1837. $i)000. On lots I, 2, and 3, as above des- cribed. Recorded Oct. 4, 1837, ^^ Liber 21 of mortgages, page 376, Power of Attorney Dated Oct. 3, 1837. Recorded same date in Liber 15 of Deeds, page 94, The instrument represents that Jacobs lives in Bridgeport, Conn., and it empowers Carpenter to do all acts necessary to discharge any and all mortgages that may be held by Jacobs on property in Michigan. fOBMS m COMMOK UBB. 349 William T. Jacobs, by William L. Carpenter, his Att'y in fact, to Thomas C. Mower. t Sarah C. Mower, widow,^ Anna J. Mower, Frederick F. Mower, and Thomas Mower, only surviving children and heirs-at-law of Thomas G. Mower to Sands F. Moore. State of Michigan to Thomas Farrell. Thomas Farrell to Sands F. Moore. Discharge of Mortgage Executed Oct. 3, 1837. Recorded in Liber 6 of Discharges, page 78. Warranty Deed. Dated July 6, 1S48. $3,000. Conveys Lots i, 2, and 3, bl'k 35, above described. Recorded July lo, 1848, in Liber 91 of Deeds, page 3. The records of the Probate Court show no administration of Thomas G. Mower's estate. Tax Deed. Dated February 6, 1840. Conveys Lots i, 2, and 3, Bl'k 35, as above described, and other lands. Recorded Feb'y 10, 1840, in Liber 58 of Deeds, page 765. Quit-claim Deed. Dated June 4, 1841. $50. Conveys Lots i, 2, and 3, bl'k 35, as above described. Re- corded June 4, 1841, in Liber 59 of Deeds, on page 349. I find nothing else of record in the Register's Office for the County of Wayne, affecting the title to the land described in the caption. Detroit, January 2, 1850. DAVID ANSON. [The above form shows a very simple title, much simpler than most abstracts will show. It is not infrequent that a knowledge of facts which do not appear of record is necessary to show good title. When such is the case such facts may be shown by affidavit attached to the abstract. For instance, in the above form there appears to be nothing of record showing that Anna J. Mower, Frederick F. Mower, and Thomas Mower are the only surviving children and heirs-at-law of Thomas G. Mower, deceased. It will be well, therefore, to have the facts of the matter set forth in aa affidavit, and attach the affidavit to the abstract.! SS'* UkStAJj OF THB LAW. Albstract Tax Statement. It is desirable always to know that the taxes upon property which one is about buying have always been paid. Even though no tax deed appears of record, or has never issued, there may still be valid tax claims which should be known of. This knowledge is afforded by a statement from the records of the offices charged with the collection of taxesj usually the State, county, and city treasurers' offices. "The follow- ing is a form of Tax Statement from the Wayne county Treas- urer's office: Waynk County Treasurer's Office, ) Detroit^ January 28, 1884. J Tax Statement of Lots 11 and 12, Bl'k i, Jos. Bushey's sub. of pt. of P. C. 171 N, of Chicago Road, Springwells. This is to Certify that the above described property has not been sold (if sold has been redeemed) for State and County Taxes since the year 1846, up to and including the year 1880, as appears from the records of this office. 1 88 1. Paid. 18S2. Due $2.05, charges to be added. Wm. d. fox. A similar statement respecting city taxes can be had from the city treasurer's office, and a statement as to State taxes is usually furnished for a small fee by the State Treasurer or Auditor Gen- eral. The latter statement is generally called a Tax History, Acltnowledgrnents. Many instruments must be ackfiowl- edged\)y the person executing them in order to make them bind- ing agaipst such person, and in order to admit them to public record. This is done by the person executing them coming before the proper officer and admitting to him that they are genuine and voluntarily made, and by the officer affixing his certificate, in proper form, upon the instrument. AH instruments affecting the title to real estate must usually be acknowledged. In general, the func- tion of acknowledgment is to admit the instrument to record, but is not essential to its validity. In Md., New Mex., N. C, and Va., the acknowledgment is absolutely necessary and should always be insisted upon in all of the States. Deeds of married women are in many of the States required to be acknowledged separate and apart from her husband, but are not, however,^ in Ala., Ind,, Kaa., FORMS IN COMMON USE. 35' Me., Md., Mass., Mich., Vt., Wis., and in some other States. The tendency of modern legislation is to dispense with this requirement. In Michigan acknowledgments may be taken by notaries pub- lic, justices of the peace, and judges of all courts of record. No seal is required in Michigan of the acknowledging officer. If the deed is to be recorded outside of the State the acknowledgment had better be under seal, although it is not required in all States. The notarial seal is every where recognized, and a scroll or scrawl can not be substituted for it. All acknowledgments should commence with the statement of the locality where they are taken, called the venue, as follows: State of Michigan, ) County of Wayne. J "ss." means «to-wit." In Canada the words "to- wit" thould be used instead of " ss." form of acknowledgment of deeds in usb in michigan. State of Michigan, ) County of Wayne. j On this tenth day of March, in the year one thousand eight hundred and eighty-five, before me, a notary public in and for said county, personally appeared John Jones, to me known to be the same person described in and who executed the within instrument, who acknowledged the same to be his free act and dtod. GEORGE A. CHASE, Notary Public, Wayne Co., Michigan. form of acknowledgment where wife is to bb examined separately. State of Michigan, ^ County of Charlevoix. J On this twenty-eighth day of August, in the year one thousand eight hundred and eighty-five, before me, the subscriber, a Justice of the Peace in and for said county, personally appeared John Jones and Mary Jones, his wife, to me known to be the same per- sons described in and who executed the within instrument, who severally acknowledged the same to be their free act and deed; and the said Mary Jones, wife of the said John Jones, on a private examination by me, separate and apart from her said husband, acknowledged that she executed the same freely, and without any fear of or compulsion from any one. W. G. HUNT, Justice •fthe Peace^ Charlevoix Co., Michigan, 35» MANUAL OP THE LAW. roru of acknowledgment by wife in use in pennsylvania. Commonwealth of Pennsylvania, ss. Before me, the subscriber, one of the judges of the Court of Common Pleas of Susquehanna County (or the required officer"), in the Commonwealth aforesaid, personally appeared the above- named Esther C. Cummings, and acknowledged the foregoing written instrument of consent, signed by her, to be her act and deed, and that the same was done without any coercion of her hus- band, Gamaliel Cummings, and desired that the same might be recorded as such: and I certify that the same was done and exe- cuted before me, previously to the signing and execution of the wilhin indenture or deed of conveyance. In testimony whereof, I have hereunto set my hand and seal this twentieth day of August, A. D. one thousand eight hundred and • DAVID R. STOKES, President Judge of Court of Common Pleas of Sus. Co. acknowledgment of power of attorney. Gallatin County, ss. Before me, the subscriber, one of the Justices of the Peace within and for said county, personally came the above-named Thomas Smith, and in his own name, and in the name of his constituent, the above-named Richard Ray {according to the power of attor- ney), in due form of law acknowledged the above-written inden- ture to be his own act and deed, and the act and deed of his con- stituent, the said Richard Ray, by him, the said Thomas Smith done and executed, by virtue of a power of attorney to him for that purpose granted [to the end that the same might, as such, be recorded ]. In testimony whereof, etc by a deputy sheriff, of a deed executed by him in the name of the sheriff. Knox County, ss. On the thirteenth day of October, A. D. i8 — , Owen Spencer came before me, and personally acknowledged that he, as a general deputy of Abner Wise, Esq., the Sheriff of the County of Knox, had executed the within conveyance, in the name, and as the act and deed of the said Sheriff: and I certify that I know the said Owen Spencer, who made the said acknowledgment, to be the individual described in, and who executed the said conveyance. LEWIS MASON, Commissioner of Deeds of Knox County, FORMS IN COMMON USE. 853 ACKNOWLEDGMENT OF DEEDS BY A CORPORATION. State of County of- ■'Iss. On this day of , A. D. 188 — , before me [here state official title], personally appeared A. B., known to me to be the president of the Company ; and C. D., known to me to be the Secretary of said company, and they severally acknowledged the execution of the foregoing instrument of writing to be their free act and deed and the free act and deed of the said Company. (Signature and official title of acknowledging officer.) general form of acknowledgment in use in new england. Commonwealth of Massachusetts. ) Suffolk, ss. J [Date.] Then personally appeared the above named (A. B. and C. D.) and (severally) acknowledged the foregoing instrument to be his (their) free act and deed, before me, (Signature and title.) acknowledgment of husband and wifk. Commonwealth of Massachusetts, ) County of . J Then personally appeared the above named A. B. and C. B., his wife, and acknowledged the foregoing instrument to be their free act and deed, before me this day of , 18 — . (Signature and title.) certificate of acknowledgment by husband and wife for use in MINNESOTA. State of Minnesota, ) ^^ County of J Be it known, that on this day of , A. D, 18 — , before me personally appeared A. B. and C. B., his wife, to me known to beu the individual persons described in and who executed the foregoing instrument, and they acknowledged that they executed the same freely and voluntarily for the uses and purposes therein expressed. Witness my hand and official seal the day and year before writ- tgg^ (Signature and title.) 354 MANUAL OF THE LAW. general form of acknowledgment for use in missourl State of Missouri, , ' >■ ss. County of- ^:-\ On this day of , i8 — , personally appeared before me, A. B., to me known to be the person described in, and who exe- cuted the foregoing instrument, and acknowledged that he executed the same as his free act and deed. In witness whereof I have hereunto set my hand and affixed my official seal the day and year aforesaid, [Seal.] (Signature and title.) The above form will answer for the acknowledgment of hus- band and wife, except that she must be described as his wife. acknowledgment by grantor for use in new YORK. State of New York, ) County of . J On this day of , A, D. i8 — , before me personally came A. B., to me personally known, and to me known to be the individual described in and who executed the within (or above, or annexed) conveyance (or instrument), and acknowledged that he executed the same. (Signature and title.) Wife acknowledges the same as if she were unmarried. FORM OF acknowledgment BY HUSBAND AND WIFE FOR USB IN OHIO. State of Ohio, ) County of , J Be it remembered, that on this day of , A. D. i8 — , before me, the subscriber, a (here insert title of officer) in and for said county, personally came A. B. and C. B., his wife, and acknowledged the signing and sealing of the foregoing instrument to be their act and deed for the uses and purposes therein expressed. And the said C. B., wife of the said A. B., being examined by me separate and apart from her said husband, and the contents of said instrument made known and explained to her by me, did declare that she did voluntarily sign, seal, and acknowledge the same, and that she was still satisfied therewith as her act and deed. In witness whereof I have hereunto set my hand and affixed my official seal on the day and year last above written. [Seal.] (Signature and title.) The above form will answer for a general form by omitting what is said in reference to the wife. F0BM8 IN COMMON USB. 355 rtificate of acknowledgment by husband and wife for use in indiana. State of Indiana, ) County «f . \ *'• Be it remembered, that on this day of , A. D. iS — , before me (here insert name and title in full of the official taking the acknowledgment), duly commissioned and qualified, personally appeared A. B. and C. B., his wife, the grantors in the foregoing deed, and severally acknowledged the execution of the same. In witness whereof I have hereunto set my hand and affixed my official seal the day and year aforesaid. [Seal.] (Signature and title.) certificate of acknowledgment by husband and wife for use in illinois. State of Illinois, ^ County of— \ I (name and title of officer), do hereby certify that A. B. and C. B., his wife, personally known to me to be the same persons whose names are subscribed to the foregoing instrument as having executed the same, appeared before me this day in person, and acknowledged that they signed, sealed, and delivered the said instrument as their free and voluntary act, for the uses and purposes therein set forth, including the release and waiver of the right of homestead. Given under my hand and official seal, this day of , A. D. 18S-. (Signature and title.) Notaries public and other acknowledging officers should acquaint themselves with the provisions concerning the matter of acknowl- edgments in their respective States. (See Chapter on Notaries, page 278.) Acknowledgments of mortgages, land contracts, leases, and other instruments that may require acknowledgment, are practi- cally the same in form as those for deeds above given. AiBdayitS. An affidavit is a written statement of facts sworn to by the person making it before an officer authorized to admin- ister an oath. If the affidavit is for use iri a SMit or proceeding ^\ 15 35* MANUAL OF THE LA^. law, it should be accurately and properly entitled in the cause. The venue or place where it is taken must be stated. The person making it must sign it at the end, and the jurat must be signed by the officer taking the affidavit with the addition of his official title. The affidavit must describe the deponent with certainty, and this should be done not by way of mere description, but as a direct allegation in the body of the affidavit. In the Chapter on Notaries Public, page 278, will be found some useful hints. The following forms are adapted for general use: common form. State op , ) County of . J A. B. being duly sworn (or affirmed) says (here set forth a statement of the facts.) (Signature of person making the affidavit. Subscribed and sworn to (or affirmed) before me this ..,, day of • • • •, 18. •• (Signature and title of officer.) LEGAL FORMS. A. B. 1 V. \ The Circuit Coukt for the c. d. ) countv of , State of Michigan, ) County of . \ ®*" A. B. being duly sworn (or affirmed) says (here set forth the allegations intended to be sworn to.) A B . Sworn (or affirmed) before me ) this — day of , A. D. 18—. \ James Gordon Bennett, Notary Public^ Ingham County, Michigan. affidavit OF service of papers. [Title of case. J State of , ) County ef . \ *** A. B. being duly sworn (or affirmed), deposes and saya: that he in above the age of 18 years, and that on the .... day of Missing Page Missing Page Missing Page Missing Page Missing Page Missing Page tOtCMS IK COMMON tJbfi. 553 — ■- The obligations of this contract are hereby made binding upon the legal representatives of the parties hereto. In Witness whereof the said parties hereto set their hands and seaU. Another method of making sure of the performance of an agree- ment to sell a farm or a parcel of land is for the purchaser to take from the seller a i>ond for a deed. This is an obligation for the payment of a certain sum of money to become binding on the obli- gor, as he is termed, unless he shall, upon a certain date, duly deed to the obligee the premises in question upon the terms agreed to. BOND FOR CONVEYANCE OF LAND. Know all men by these presents, That I, John Smith, of Smithville, Jones County, in the State of New York, am held and firmly bound unto Thomas Brown, of Thomastown, Brown County, in said State, in the sum of four thousand dollars, to be paid to the said Thomas Brown, his heirs, 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 this second day of January, A. D. 1884. The Condition of this Obligation is. That if the said John Smith, upon payment to him by the said Thomas Brown of the sum of three thousand dollars in three annual payments of one thousand dollars each, to be made on the second day of January in each year with interest on the amount remaining unpaid, at seven per cent per annum, shall convey to the said Thomas Brown and his heirs forever a certain tract or parcel of land situ- ated in the county of Jones in the State of New York, described as follows, to wit: (Here describe the land) and in the mean- time shall permit said Thomas Brown to occupy and improve said premises for his own use and benefit, then this obligation shall be void, otherwise to remain in full force and effect. In Testimony whereof, I have hereunto set my hand and seal the day aad year first above written. John Smith, I *" *" f IH MAJNtJAL 0» TUB LAW. If a bond for a deed is given the purchaser he can recover from the seller such damages as he has been put to if the deed is not given, but he cannot compel the seller to give a deed if the sellei does not choose to. If, however, a contract of sale is duly executed in writing and the seller refuses or neglects to give the deed as agreed upon, the purchaser can obtain from a court of chancery a decree of specific performance, as it is called, which will compel him to do so. SHORT AGREEMENT FOR BUILDING A HOUSK. This agreement for building, made the eighteenth day of March, one thousand eight hundred and eighty-five, by and between A. B. of the city of Detroit, in the county of Wayne and State of Michigan, of the first part, and C. D. of the township of Dearborn in the county -of Wayne and State of Michigan of the second part, witnesseth: That the said party of the second part cove- nants and agrees to and with the said party of the first part to make, erect, build, and finish in a good, substantial, and work- manlike manner, on the vacant lot of the said party of the first part situate on Fourth avenue in said city of Detroit, a dwelling house, agreeable to the draft, plan, and explanation hereto annexed, of good substantial materials, [if the materials are to be furnished by the party of the first part, say: of such materials as the said party of the first part shall find or provide for the same], by the first day of August next. And the said party of the first part covenants and agrees to pay unto the second part for the same the sum of five thousand dollars, lawful money of the United States, as follows: two thousand dol- lars in thirty days from the date hereof, and the remaining sum of three thousand dollars when the said dwelling house shall be com- pletely finished, flf necessary add: And also that he will fur- nish and procure the necessary materials for the said work in such reasonable quantities and at such reasonable time or times as the said party of the second part shall or may require.] And for the true and faithful performance of all and every of the covenants and agreements above mentioned the parties to these presents bind themselves, each unto the other, in the penal sum of ten thousand dollars, as fixed and settled damages to be paid by the failing party. In Witness, etc., (as in preceding form.) FORirs IK COMMON tJSfil. 3^ ANOTHER AGRKKMENT FOR BUILDING A HOUSE. Articles of agreement made and concluded the .... day of . . . ., one thousand eight hundred and , between A. B. of .... County of .... and State of , of the first part, and C. D. of the same place, of the second part, as follows, viz.: The said A. B., for the considerations hereinafter mentioned, doth, for himself, his heirs, executors, and administrators, covenant with the said C. D., his executors, administrators, and assigns, that he, the said A. B., shall and will, within the space of .... next after the date hereof, in a good and workmanlike manner, and according to the best of his knowledge and skill, well and substan- tially build, set up, and finish one house or messuage, on [describ- ing the location] in such place as the said C. D. shall direct at .... aforesaid, of the dimensions following, viz.: [describe the house in full; if apian be used, add afterwards, according to the draft or plan hereto annexed], with such stone or brick, lumber and other materials, as the said C. D., or his assigns, shall provide and fur- nish for the same. In consideration whereof, the said C. D. doth, for himself, his executors and administrators, covenant and promise with and to the said A. B., his executors, administrators, and assigns, well and truly to pay, or cause to be paid, unto the said A. B., his executors, administrators, and assigns, the sum of five thousand dollars, in manner following, to wit: five hundred dollars, part thereof at the beginning of the said work; one thousand dollars more thereof on the first day of July next; two thousand dollars more thereof on the fifteenth day of August next, and fifteen hundred dollars in full for the said work at the time the same shall be fully com- pleted, [varying these terms according to the agreement]. And also, that he, the_said C. D., his executors, administrators, and assigns, shall and will at his and their own proper expense, find and provide all the stone, brick, tile, timber, and other material necessary for the making and building of the said house. And for the true and faithful performance of each and all of the covenants and agreements aforesaid, each of the said parties bindeth himself, his heirs, executors, and administrators unto the other, his executors, administrators, and assigns, in the penal sum of dollars [or, « in the sum of dollars, to be taken as liquidated and stipulated damages,"] firmly by these presents. In witness whereof, we have hereunto set our hands and seals the day and year first above written. A. B., [SKAL.] Sealed and delivered ) in presence of J C. D. [seal.] Daniel Dorman, William Lyell. 366 MAKtJAli Of THE LAW. AGREEMENT FOR BRICKLAYEr's AND PLASTEREr's WORK. Memorandum of an Agreement made this first day of May, A. D. i8 — , between A. B. of the .... of . , . ., County of . . . and State of ., of the one part, C. D. of the same . . . ., of the other part, as follows : The said A. B. for the consideration hereinafter mentioned, doth covenant, promise and agree with, and to the said Thomas Ewing, that he, the said A. B., shall and will do and per- form all the work belonging to the bricklayer and plasterer, in and about the erection and building of a certain house [describing the location] in a sufficient and w^orkmanlike manner, at his own charge and expense, with the materials to be provided for that purpose by the said C. D.; that he will build the same with the thickness of walls, height or number of stories, and the number and kind of lights, chimneys, and conveniences, together with the ornamental work in and about the said building as the said C. D. shall direct him, paying and discharging all the said workmen by him employed in and about the same; and, that he will completely finish all the work herein by him agreed and covenanted to be by him done and performed on or before the .... day of .... next. And the said C. D., for and in consideration of the true and faith- ful performance of the work to be done as aforesaid, doth agree and covenant to and with the said A. B., that he shall and will well and truly pay, or cause to be paid, unto the said A. B., for all such work, ornamental work excepted, to be by him done and performed in and about the building aforesaid, at and after the rate of .... for every yard which said work shall measure, reck- oning three feet square for every yard; and for all the said orna- mental work to be performed as aforesaid, the sum of .... dollars in full: and the said C. D. will pay all the said money as follows, viz. : [insert the terms. ] And it is further covenanted and agreed, by and between the parties hereunto, that each and all of the fore- going covenants and agreements are to apply to, and bind, the heirs, executors, and administrators of the respective parties hereto. In witness whereof, etc., [as in foregoing.] Sealed and delivered ) -. • •> L "J in presence of J C. D. [seal.] Robert Ray, Kenneth Kite. agreement to buy a merchant's stock, etc. This agreement, made this day of . . . ., A. D. i8 — , by and between A. B., of , County of and State of . . . ., and C. D. of the said . , . . : Witnesseth, that in coosideratioa of FOEIIS IN COMMON USB. 367 the covenants on the part of the said C. D. hereinafter contained, the said A. B. doth hereby covenant and agree to and with the said C. D., that he wUl purchase of the said C. D. all his stock of goods, wares, and merchandise, now being and contained in his, the said C. D.'s store, in said . . . . , together with all the fixtures thereto belonging, an account of such goods, wares, and merchan- dise being taken by the parties hereto in the presence of each other; and the said A. B. agrees to pay for the same at the invoice price thereof; but, if any of the said goods be damaged, such dam- aged goods, together with the fixtures aforesaid, are to be appraised and valued by three disinterested persons, each party hereto select- ing one, and the two so selected to select a third, and the said A. B. agrees to pay for the same the price which the three appraisers aforesaid shall set thereon in their valuation and appraisal of the same; and, that within ten days after the value of said goods, wares, merchandise, and fixtures can be ascertained as aforesaid, the said A. B. is to pay the valuation thereof to the said C. D. And the said C. D., in consideration of the foregoing covenants by the said A. B. to and with him the said C. D. made, covenants and agrees to and with the said A. B., that he, the said C. D., will sell to him, the said A. B., the said goods, wares, and merchan- dise at the invoice price, and the fixtures and such goods as may be damaged, at such price as the appraisers aforesaid may fix and determine; and to make, execute, and deliver unto the said A. B. a good and sufficient bill of sale and conveyance thereof, and to yield and deliver to him, the said A. B., quiet and peaceable pos- session thereof upon payment to him, the said C. D., by the said A. B., within the time before specified, of the invoiced and appraised value of the goods, wares, merchandise, and fixtures aforesaid. In witness whereof, etc Sealed and delivered ) ^- ^•' [seal.] in presence of J C. D. [seal.] Levi Merriam, Enos Drake, [If desired, the form for appraising damaged goods can be made applicable to the entire stock.] AGREEMENT FOR THE SALE OF GRAIN. It is agreed this fourth day of June, A. D. 18 — , by and between A. B., of , . . . , Count}' of . . . , and State of , and C, D., of . , . ., County of and State of , as follows: The said C. D,, in consideration of five hundred bushels of wheat, to him this day sold by the said A. 6-, and by the said A- B. agreed 368 MANUAL. OF THE LAW. to be delivered to him, the said C. D., on or before the dav of , free of all charges, agrees to pay to the said A. B. within one month after such delivery, the sum of three hundred and seventy-five dollars. And the said A. B., in consideration of the aforesaid agreement of the said C. D., doth hereby agree to for- ward and deliver to the said C. D., at aforesaid, free of all charge, the said five hundred bushels of w^heat, so to him sold as aforesaid, hereby warranting the same to be good, clean and mer- chantable grain. Witness our hands and seals, day and year first written. Sealed and delivered ) A, B. [seal.] in presence of f ^, j^ .^. Egbert Richter, l ■* John Davy. AGREEMENT FOR LEASE OF HOUSE. It is agreed this . day of . . . ., A. D. i8. ., between A. B., of , County of .... and State of . . . ., of the one part, and C. D., of .... aforesaid, of the other part, as follows: The said A. B. doth agree to let unto the said C. D., all that certain lot of ground with the house thereon, being and situate [here describe the premises] for one year from the first of February next, and for such longer time after the expiration of the said year as both the said parties shall agree, and until the end of three months after notice shall be given by either of the said parties, to the other of them, for leasing the said premises, at and for the yearly rent of four hundred dollars, payable quarterly on the first days of May, August, November, and February, in equal portions; which said yearly rent, payable quarterly as aforesaid, the said C. D., for him- self, his executors, and administrators, doth hereby covenant and agree to pay to the said A. B., his executors, administrators, and assigns, accordingly, for so long a time as he shall hold and enjoy the said premises as aforesaid, and until the end of the said three months next after notice shall have been given by either of the above parties to the other, for leasing the said premises as afore- said. Witness our hands and seals, day and year first above written. Signed, sealed and delivered ) A. B. [seal.] in presence of us, J f. ^ [seal.] Joseph Close, *■ •* Barclay Thomas. CONTRACT WITH A CLERK OR WORKMAN FOR SERVICES. Memorandum of agreement made this .... day of . FORMS IN COMMON USE. Z^9 i8. ., between A. B., of County of , State of of the first part, and C. D., of County of , State of , of the second part, witnesseth: That the said A. B. agrees faith- fully and diligently to serve the said C. D., as [insert position to be held] at for the period of .... from and after .... day of . . . ., iS. . In consideration of which service so to be performed by the said A. B., the said C. D. agrees to pay to the said A. B. the sum of .... dollars, to be paid as follows: .... dollars on the day of iS. ., and dollars on the day of each and every month following during the said term, and the bal- ance, if any, at the expiration of the said term. And it is understood and agreed, that the death of either party during the said term shall terminate this contract. In witness whereof we have hereunto set our hands and seals this .... day of , i8.. A. B. Signed, sealed and delivered in presence of C. D. [Signatures of witnesses.] CONTRACT FOR SALB OF GOODS. This agreement, made this . day of . . . ., 18 — , between A. B., of . , , . and C. D., of ., witnesseth: That it is hereby agreed by the said parties, that all the stock of goods, wares, and merchandise, which are the property of A. B., and contained [state wrhere goods, etc., are] which are mentioned in the schedule hereunto annexed, together with the furniture and fixtures thereunto apper- taining, shall, at the joint afld equal charge of the said parties, be appraised by M. N. and O. P., on or before the .... day of .... next, when the said M. N. and O. P. shall, in writing by them signed, give in their appi'aisement to the said parties; and in case the said appraisers shall differ in such valuation, then a third indif- ferent person chosen by them as an umpire shall determine the same, whose valuation in writing by him signed shall be given in to the said parties, within three days after his election. And the said A. B. covenants with the said C. D. that, immediately after such valuation being made, he will make and deliver an absolute bill of sale, of all the said goods and stock in trade, and will give possession thereof unto the said C. D., at the price the same shall be appraised at as aforesaid. And the said C. D. hereby covenants with the said A. B., that he will accept the said property at such price, and, on the delivery thereof with the bill of sale, will pay to the said A, B. the sum of money at which the same shall be appraised as aforesaid. In witness, etc., as in previous forms. A. B. [seal.] C. D. [seal.] Signed, sealed, and delivered in presence of [Signatures of witnesses]. MANUAL or THE LAW. The following is a schedule of the goods and chattels referred to on the preceeding page: 1 dozen cane seat chairs @$ $ 2 sofas @$ $ Etc., etc., etc A. B. .C. D. AGREEMENT TO CULTIVATE LAND ON SHARKS. This agreement made the .... day of . . . . , one thousand eight hundred and eighty-five, between A. B., of the township of Dear- born, in the county of Wayne, and State of Michigan, and C. D,, also of the same township, county and State, witnesseth: That the said A. B. agrees that he will break up, properly fit, and sow with wheat, all that field belonging to the said C. D. lying immediately north of the dwelling house and garden of the said C. D. in the Township aforesaid, and containing twenty acres or thereabouts, on or before the twenty-fifth day of September next; that when the said crop, to be sown as aforesaid, shall be in fit condition, he will cut, harvest, and safely house it in the barn or barns of the said C. D., and that he will properly thresh and clean the same, and deliver one-half of the wheat, being the produce thereof, to the said C. D. at the granary near his dwelling-house as aforesaid, on or before the day of . . . . , in the year i8 . . . It is understood between the parties that one-half of the seed wheat is to be found by the said C. D. ; that the said A. B, is to perform all the work and labor necessary in the premises or cause it to be done; and that the straw is to be equally divided between the parties within ten days after the crop of wheat shall have been threshed as aforesaid. In witness, etc. [See preceding forms.J Apprentices. In the Chapter on Hiring Help, will be found a general statement of the law governing the matter of appren- ticeship. (See page 190.) The following is a general form of apprentice's indenture: This agreement witnesseth: That A. B., of , , does by these presents bind out his (or, if the father is not living, her) son C. B., and that the said C. B. does hereby bind himself out as an apprentice to E. F. of , ^ to learn the art (business, or trade) of (state what.) POBMS IN COMMON USB. 37' That the said C. B. is at the date hereof aged .... years. That said C. B. shall dwell with and serve said E. F. as such apprentice from the date hereof till .... day of That during said term said apprentice shall faithfully serve his said master, keep his secrets, and at all times readily obey his law- ful commands. He shall do no damage to his master, nor willfully suffer any to be done by others. He shall at all times diligently promote his master's interests, shall not absent himself from the service of his master, but in all things shall demean and conduct himself as a good and faithful apprentice ought. That the said E. F., in consideration thereof, does hereby cove- nant, promise, and agree to instruct and teach said apprentice, or cause him to, be instructed and taught in all the ways of the art (business, or trade, etc.,) aforesaid to the best of his ability and means; to instruct and teach said apprentice, or cause him to be instructed and taught to read, write, and cipher, to find and pro- vide said apprentice good and sufficient food, clothing, lodging, and other necessaries during said term, and at the expiration thereof to give him dollars (clothes, etc., as the parties may agree). In witness whereof the parties hereto have here set their hands and seals this .... day of . . . ., A. D lilt CONSENT OF FATHER OR MOTHER. I do hereby consent to, and approve of, the binding of my son, C. B., as in the above (or within) indenture mentioned. Dated the .... day of . . . . , 1 88 . . A. .... x>..... justice's certificate WHERE MOTHER GIVES CONSENT. I, G. H., justice of the peace of the town of , in the County of and State of , do certify that A. B., the father of the infant named in the within indenture, is dead (or is not legally competent to give his consent thereto, or has abandoned or neg- lected to provide for his family). P?\t?d thp day of ...., 188.. 26 G H..,., justice of the Pcact<, 37* MANUAL OF THE LAW. CONSENT OF GUARDIAN. I, J. K., the guardian duly appointed of C. B., in the within indenture named, do certify that the father and mother of the said C. B. are dead, (or that the father of the said C. B. is dead, and that his mother refuses her consent to the said indenture of apprenticeship, or is not in legal capacity to give her consent;) and I do hereby consent, as his guardian, that he, the said C. B., may bind himself in and by said indenture. Dated the .... day of . . . . , i88 . . y. K.f Guardian of the said C. B, ASSIGNMENT OF FOREGOING INDENTURE. Know all men by these presents, that I, the within named E. F., for and in consideration of the sum of .... dollars, have assigned and set over, and by these presents do assign and set over, the within indenture together with the apprentice therein named, unto C. D., of . . . ., his executors, administrators, and assigns, for the residue of the term within mentioned; he and they performing all and singular the covenants therein contained on my part to be kept and performed, and indemnifying me from the same. In witness whereof I have hereunto set my hand and seal, the .... day of ...., iS8.. E. F. "[L. S.J In the presence of G. H. L. M. An indenture of apprenticeship is not assignable as a marter of right, though it would be valid against the one wlio made it as a promise of the services of the apprentice. (19 Johnson, 113.) Arbitration. The law governing the matter of arbitration and award is set forth in the chapter on that subject, commencing on page 253. The following general forms can be modified to suit the special requirements of the cases' that may arise: SUBMISSION TO ARBITRATORS. Whereas, * controversy is now existing and pending, between A. B. of, etc., ai»d Q. D., etc., in relation [ here state the substance FORMS IN COMMON USB. 373 of the controversy]. Now, therefore, we, the undesigned, A. B. and C. D. aforesaid, do hereby submit the said controversy to the arbitrationment of E. F., L. M., and S. T., of, etc., or any two of them, and we do mutually covenant and agree, to and with each other, that the award to be made by the said arbitrators, or any two of them, shall, in all things by us and each of us, be'well and faithfully kept and observed: provided, however, that the said award be made in writing under the hands of the said E. F., L. M. and S. T., or any two of them, and ready to be delivered to the said parties in difference, or such of them as shall desire the same, on the .... day of .... next. Witness our hands and seals this .... day of , A. D. i88. . In the presence of A. B. [seal.] C. D. [seal. J SHORT FORM OF GENERAL SUBMISSION. We, the undersigned, hereby mutually agree to submit all our matters in difference, of every name or nature, to the award and determination of E. F., L. M., and S. T., for them to hear and determine the same, and make their award in writing, on or before the .... day of .... next. Witness our hands and seals this .... day of . . . ., A. D. 1885. In the presence of A. B. CD. AGREEMENT FOR JUDGMENT, TO BE INSERTED IN THE SUBMIS- SION, IF NECESSARY. And it is hereby further agreed between the said parties, that judgment in the court of [here state what court] may be rendered upon the award to be made pursuant to this submission, to the end that all matters in controversy between them shall be finally con- cluded. ARBITRATION BOND. Know all Men by these Presents, That I, A. B., of ...., County of .... and State of ...., am held and firmly bound to C. D., of etc.. In the sum of .... dollars, good and law- ful money of the United States, to be paid to the said C. D., his executors, administrators, or assigns, for which payment well and truly to be made, I bind myself, my heirs, executors, and adminis- trators, fit-mly by these presents. Sealed with my seal, and dated the .... day of A. D. 18 . .. 374 MANUAL OF THE LAW. The condition of this obligation is such, that if the above bounden A, B., his heirs, executors, and administrators, shall and do, in all things, well and ti'uly abide by, perform, and fulfill in all things the award, decision, and final determination of E. F., L. M., and S. T., appointed and named on the part and behalf of the said A. B., as well as the said C. D., to arbitrate, award, order, and determine of and concerning all, and all manner of action and actions, cause and causes of actions, suits, controversies, claims, and demands whatsoever, now pending, existing, or held by and betv/een said parties, so that the said award be made in writing under the hands of the said E. F., L. M., and S. T., or any two of them and ready to be delivered to the parties in difference, or to such of them as shall desire the same, on or before the .... day of . . . ., A. D. i8. ., then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered ) A. B. [seal,] in presence of f /-■ -n. r t •do ' cd. i seal. i Rudolph Shaffer, L -■ Augustus Pope. (Each party to the arbitration should give to the other a bond like the above.) NOTICE TO ARBITRATORS OF THEIR APPOINTMENT. To E, F.^ L. M.^ and S. T., Esquires : You are hereby notified that you have been nominated and chosen arbitrators, as well on the part and behalf of the under- signed, A. B., of etc., and C. D., of etc., also imdersigned to arbi- trate, award, etc. [here insert as in the submission as well as Bond, specifying the time within which the, award must be made], and you are requested to meet the said parties at the house of O. R., in the of , county of , and State of Michigan, on the day of ., A. D. i8. ., at . . o'clock in the . . .noon of that day, for the purpose of fixing upon a time and place where and when the proofs and allegations of the said parties shall be heard. Dated the day of , A. D. i8. .. A. B. Yours, etc., C. D. arbitrator's OATH. We, the undersigned, arbitrators, appointed by and between A. B., and C. D., do swear respectively, that we will faithfully hear and examine the matters in controversy between the parties above FOEMS IN COMMON USE. 375 named, and will make a just award therein, according to the best of our understanding. Sworn to this .... day of , ) E. F. A. D. i8S.. Before me, C L. M. S. T. NOTICE OF HEARING FOR OPPOSITE PARTY, IF NECESSARY. In the matter of an arbitration,"" of and concerning matters in difference between A. B. of the one part and C. D. of the other part. Sir: You will please take notice that a hearing in the matter above specified, will be had before the arbitrators, at the house of O. R. in the .... of . . . . , etc., on the .... day of . . . . , etc. Yours, etc., A. B. OATH OF WITNESS BEFORE ARBITRATORS. You do solemnly swear (or affirm) that the evidence you shall give to the arbitrators here present, on a controversy between A. B. and C. D., shall be the whole truth and nothing but the truth: So help you God (or and so you do affirm). REVOCATION. To E. F., L. M., and S. T., Esquires: Take notice, that I do hereby revoke your powers as arbitrators under the submission made to you by C. D. and myself, in writing for as the case may be] on the .... day of i88.. ■■ A. B.* NOTICE OF REVOCATION. To CD.: You are hereby notified that I have this day revoked the pow- ers of E. F., L. M., and S. T., arbitrators chosen to settle the mat- ters in controversy between us; and that the following is a copy of such revocation. Dated the day of , i88.. Yours, etc., A. B. » If the submission be under seal, the instrument revoking it should likewise be. 376 JFOEMS IN COMMON USE. AWARD BY ARBITRATORS. To ALL TO WHOM THESE PRESENTS SHALL COME, OR MAY concern: Send greeting, E. F., L. M., and S. T., to whom were submitted as arbitrators, the matters in controversy existing between A. B., of . . . ., county of .... and State of . . . ., and C, D., of etc., as by their submission in writing, dated the .... day of . . . ., A. D. i8. ., more fully appears. Now, therefore, know ye, that we, the arbitrators mentioned in said submission, having first been 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 : [Here insert the conclusions of the arbitrators as to all the mat- ters submitted for their decision.] And we do further award, adjudge, and decree, that the said A. B. and C. D. shall, and do, within ten days next ensuing the date hereof, seal and execute unto each other, mutual and general releases of all actions, cause and causes of actions, suits, contro- versies, and demands whatsoever, for, or by reason of, any matter, cause or thing, from the beginning of the world down to the date of the said submission. In witness whereof we have hereto subscribed these presents, this .... day of .. .., A. D., i8... Signed, sealed and delivered ) in presence of J Samuel Rood, Abram Wingall. E. F. 'seal. L. M. seal. S. T. SEAL. Assignments. When one person turns over to another any right which he may possess he is said to assign it, and the instru- ment by which he does it is called an assignment. The term is applied to the transfer of some right already in existence as dis- tinguished from the creation of a new right. Thus we speak of the assignment of a contract or the assignment of a lease. The person making the assignment is called the assignor, the one to whom it is made the assignee. All assignments affecting the title to land should be acknowl- edged and recorded, as in the case of conveyances. In order to render an assignment of a policy of insurance valid, it must be made to one having possession of the premises or thing insured at the time, and be allowed by the insurers. If an assign- ment be made after loss, and without consent of the insurer, the assignee, although in possession before the loss, cannot recover. FOE-SIS IN COMMON tJSE. 377 An assignment of a bond or book-account may be effected by a simple delivery of the evidence of debt for a valuable consideration thereby giving an assignee permission to sue for the same in the name of the assignor. As this assignment, however, gives the assignee no better title than the assignor had, it is alwrays prudent to give the debtor notice of the proposed assignment, that it may be ascertained whether he has any defense to the claim. In some of the States, assignees are allowed by statute to sue in their own name, when the bond is for payment of money, and drawn to order or assigns, and the assignment is in writing under seal, and executed in the presence of two or more credible wit- nesses. An assignment is valid only when made in good faith. Any party interested in testing its validity, can do so in an action; if it can be shown before a jury that the assignment was made to evade debts due to creditors, they will set it aside; if such fraud cannot be proved, then it will stand. An assignment by a debtor for the benefit of his creditors must be an unconditional surrender of all his effects. If he secretly hold back any property, such withholding is fraudulent, and punishable by statute. An insolvent debtor has the right to prefer one creditor to the exclusion of all others, in case it be done in good faith. All assignments for the benefit of creditors must be accompanied by immediate delivery of the property. Assignments of leases and other instruments affecting the title to real estate, as well as assignments of mortgages, must be acknowledged and recorded, hke all other conveyances of such property. The proper words to constitute an assignment are, " assign, transfer, and set over." ASSIGNMENT OF A DEED. Know all Men by these Presents, That A. B., the gran- tee within named, and , his wife, for and in consideration of the sum of .... dollars, to them in hand paid by C. D., of , County of , and State of , at and before the enseal- ing and delivery hereof, the receipt whereof is hereby acknowl- edged, have granted, bargained, sold, assigned, and set over unto the said C. D., his heirs and assigns, all that the within messuage, tenement, and tract of land, (describing it,) containing twenty acres, more or less, being the same premises which E. F., by the 378 MANUAL OP Tv^ LAW. within written indenture, dated the .... day of A, D. i8. ., and recorded in, etc., granted and conveyed unto the said A. B., his heirs and assigns; [or, as the case may be,] together with all and singular the rights, members and appurtenances whatsoever thereunto belonging, or in any wise appertaining; and the rever- sions, remainders, rents, issues, and profits thereof; to have and to hold the said messuage, tenement, or tract of land, hereby granted and assigned, with the appurtenances, unto the said C. D., his heirs and assigns, to his and their only proper use and behoof forever. And the said A. B., and his heirs, shall and will warrant and for- ever defend by these presents, the said hereby granted and assigned premises with the appurtenances, unto the said C. D., his heirs and assigns, against the said A. B., and his heirs, and against all and every other person or persons whatsoever, lawfully claiming, or to claim, by, from, or under him, them, or any of them. In witness whereof, the said parties have hereunto set their hands and seals this .... day of . . , . , in the year of our Lord one thous- and eight hundred and Signed, sealed, and delivered ) A. B. { ^ '■ } in presence of J '"^ William Gray ' "^ Richard Jonbs, William Gray, C D. j ^ I ASSIGNMENT OF DEMAND FOR WAGES OR DEBT. In Consideration of dollars, to me in hand paid by C. D., of the .... of , the receipt whereof is hereby acknowl- edged, I, A. B., of the same place, have sold, and by these presents do sell, assign, transfer, and set over, unto the said C. D., a certain debt due from E. F., amounting to the sum of dollars, for work, labor, and services by me performed for the said E. F. (or for goods sold and delivered to the said E. F.), with full power to sue for, collect, and discharge, or sell and assign the same in my name or otherwise, but at his own cost and charges; and I do hereby covenant that the said sum of .... dollars is justly due as aforesaid, and that I have not done, and will not do any act to hin- der or prevent the collection of the same by the said C. D. Witness my hand, this April loth, 1863. A. B. ASSIGNMENT OF ACCOUNT ENDORSED THEREON. In CONSIDERATION of One dollar, value received, I hereby sell and assign to C. D. the within account, which is justly due from the within named E. F., and I hereby authorize the said C. D. to collect the same. A. B. New York, April 10, i86^ rOEMS IN COMMON TJSE. 379 ASSIGNMENT OF A LEASE. Know all Men by these Presents, That I, the within- named A. B., for and in consideration of the sum of .... dollars, to me in hand paid by' C. D., of , County of .... and State of , at and before the ensealing and delivery hereof, the receipt whereof I do hereby acknowledge, have granted, assigned, and set over, and by these presents do grant, assign and set over imto the said C. D., his executors, administrators, and assigns, the within indenture of lease, and all the messuage therein described, with the appurtenances ; and also all my estate, right, title, term of years yet to come, claim and demand whatsoever, of, in, to, or out of the same; to have and to hold the said messuage and appurte- nances unto the said C. D., his executors, administrators, and assigns, for the remainder of the within-mentioned term, under the rents and covenants within reserved and contained, on my part and behalf to be done, kept and performed. In witness whereof, etc. A. B. Tseal.] Signed, sealed, and delivered in presence of GENERAL FORM OF AN ASSIGNMENT, TO BE ENDORSED UPON ANY INSTRUMENT. Know all Men by these Presents, That I, the within named A. B., in consideration of the sum of dollars, to me paid by C. D., have assigned, transferred, and set over unto the said C. D., and his assigns, all my interest to and in the within- written instrument, and every clause, article, or thing therein con- tained; and I do hereby constitute the said C. D., my attorney, in my name, but to his own use, and at his own risii and costs, to take all legal measures which may be necessary for the full recov- ery and enjoyment of the assigned premises, with power of substitution. In witness whereof, etc. A. B. [shal.J Executed and delivered in presence of ASSIGNMENT OF A DEBT. Know all Men by these Presents, That I, A. B., of .. .., County of and State of , in consideration of dollars, to me in hand paid by C. D., of the same place, the receipt whereof I hereby acknowledge, have assigned, transferred, and set over unto the said C. D., a certain debt due and owing to me from E. F., of , County of and State of , for (here state the nature of the debt), amounting to one hundred and 380 mancal 6f the LAtr, fifty dollars; hereby authorizing the said C. D., in my name or otherwise, but at his own cost, to sue for, collect, receive, sell, transfer, settle or discharge the said debt. And I do covenant to and with the said C. D., that the said sum of dollars is justly due and owing to me from the said E. F., and that I have neither done, nor will do, any thing to diminish or discharge the said debt, or hinder the said C. D., or his assigns, from collecting the same. In witness whereof, etc. A. B. fsHAL.] Executed and delivered in presence of DECLARATION TO ACCOMPANY ABOVE, I, C. D., of , County of and State of do hereby declare that 1 have no claim or set-off to make to the pay- ment of a certain debt due and owing by me to A. B., of , County of and State of , for (stating its nature), amounting to dollars; but, that the whole of the said sum of money (with interest from A. D., 18..), remains unpaid and owing by me. C. D. Witness: ANOTHER FORM FOR ASSIGNMENT OP A DEBT. Know all Men by these Presents, That I, A, B., of . . . ., County of and State of , in consideration of the sum of dollars, now justly due and owing by me to C. D., of the same place, and for the better securing the payment of the same to the said C. D., have bargained, sold, assigned, and trans- ferred to him, all that debt or sum of eight hundred dollars, now due and owing to me from E. F., of the and County of , in the State of , for goods sold and delivered by me to the said E. F., or his order, before the day of the date hereof, and all my right, title, and interest, claim and demand, of, in, and to the said debt or sum of ..... dollars, or any part thereof; to hold to the said C. D., his executors, administrators, and assigns, from henceforth, to his and their sole use and behoof forever. In witness whereof, etc. A. B. [seal.] Signed, sealed, and delivered in presence of ASSIGNMENT OF A CLAIM FOR MONEY DUE ON ACCOUNT, COL- LECTIBLE at law IN THE NAME OF THE ASSIGNOR FOR THE USE OF THE ASSIGNEE. Know all Men by these Presents, That I, , of FOEMS IN COMMON USE. S^' « • County of and State of , in consideration of the sum of one hundred dollars, to me in hand paid by , of aforesaid, do hereby assign and set over unto the said , to his own proper use, without any account to be given for the same, the sum of dollars, and any and all other sum or sums of money that are remaining due and payable upon and by reason of the annexed account of moneys due me by , of the .... and County of , State aforesaid, and all my right, title, interest, and demand, to and in the same; and do give and grant unto the said , full power and authority to demand and receive the same to his own use, and upon receipt thereof, or of any part, to give discharges for the same. And I, the said , do hereby covenant and agree to and with the said , that the said sum of dollars is justly due and owing; and that I have not received or discharged the same, or any part thereof. In witness whereof, etc. [SSAL..J Signed, sealed, and delivered in presence of ASSIGNMENT OF POLICY OP INSURANCE. Having sold and conveyed the premises within mentioned to , of , County of , and State of , his heirs and assigns forever, I do hereby, for and in consideration of the sum of one dollar, to me in hand paid by the said assign and transfer the within policy of insurance to him, his exec- utors, administrators, and assigns. The said , by sub- scribing this assignment, makes himself responsible for all the covenants to which I have bound myself by the within policy. Witness our hands and seals, etc Signed, sealed, and delivered ) A. B. [seal.] in presence of \ ^ j^ [seal.] ASSIGNMENT OF SHARES IN A COMPANY. For Value Received, I, , of , County , and State of , assign the whole of my right, title, and interest of, in, and to shares in the Company, of , to of , County of , and State of , and constitute him, his assigns and substitutes, my attorney and attorneys, with full power to execute, in his or their name or names, certificates for the said shares; hereby obliging myself, at his or their request, to do all necessary matters and things for the more effectual trans- fer of said shares to him or them. — Witness my hand, etc. [SBAL.J 38a MANUAL OP THE LAW. Acknowledged before me, a Notary Public in and for tl« County of , State of this fifth day of May, A. D. i8, .. Notary Public. ASSIGNMENT OF A SBAMAn's WAGES. Know ALL Men by these Presents, That I, , of , County of , and State of , for and in consid- eration of the sum of .... dollars, in which I am justly indebted to , of the same place, have assigned, sold, transferred, and set over, and do hereby, by these presents, assign, sell, transfer, and set over, unto the said , all such sum or sums of money as are now due and owing to me, the said , for wages or services on board the ship called " ," from the master or owner of said vessel, as mariner on her voyage from , to the port of , which has recently terminated. And I do hereby constitute the said my attorney irrevocable, with full power in my name, but at his own charge, to prosecute, recover, receive, and give discharges for the same. And I, the said , do hereby covenant and agree, to and with the said , that I have never released or discharged, and that I will not release or discharge, the claim or demand arising and acci'uing as aforesaid. Witness my hand, etc. C. D. [SEAL.j Signed, sealed, and delivered in presence of [Signatures of witnesses]. ASSIGNMENT OF PARTNERSHIP PROPERTY AND DEBTS, BY ONE partner to another, in TRUST, TO CLOSE THE CONCERN. Whereas, A co-partnership has heretofore existed between and , both of the city of . . . ., which co partnership has been known under the name of , and which it is the intention of the said co-partners forthwith to dissolve and deter- mine: Now, this indenture of two parts, made this .... day of ..,., in the year i8. ., by and between the said , of the one part, and the said , of the other part, witnesseth: First — That the co-partnership aforesaid, is hereby, by the mutual consent of the said parties, dissolved and determined. Second — The said doth hereby sell, transfer, assign and set over unto the said , his moiety of all the stock in trade, goods, merchandise, effects, and property of every description belonging to or owned by the said co-partnership, wherever the same may be, together with all debts, causes of action, and sums of rOEMS IN COMMON USB. 383 money due and owing to the said firm from any and all persons whomsoever, to hold the same to the said , and his assigns forever, in trust for the following purposes, namely: That the said , shall sell and dispose of all the goods, property, and effects belonging to the said firm, at such time and in such manner as he may think prudent; and shall, with reasonable diligence, collect all the debts and sums of money due and owing to the said firm; and shall, out of the proceeds of the said sales, and with the maney thus collected, pay and discharge all the debts and sums of money now due and owing from the said firm, as far as the pro- ceeds of said sales and the sums of money collected will go; and, after fully satisfying all demands against the said firm, if there be any surplus, shall pay over one moiety thereof to the said or his assigns. Third — The said , doth hereby constitute and appoint the said , his attorney irrevocable, in his, the said own name, or in the name of the said firm, to demand, collect, sue for and receive any and all debts and sums of money due and owing to the said firm; to institute and prosecute any suits for the recovery of the said debts, or to compound the same, as he may judge most expedient; to defend any and all suits against the said firm; to execute all such proper writings and acquittances as may be necessary ; and generally to do all such acts and things as may be necessary or proper for the full and complete settlement of all business and concerns of the said co-partnersliip. Fourth — That said , for himself and his heirs, executors, and administrators, hereby covenants to and witli the said , and his assigns, that he will sell and dispose of all the partnership property and effects to the best advantage; that he will use his best diligence and endeavors to collect all debts and sums of money due and owing to the said firm; and that he will truly and faith- fully apply the proceeds of said sale, and the moneys collected, to the payment, discharge, and satisfaction of all debts and demands against the said firm, as far as the same will go; and, after dis- charging all such debts, will pay over to the said , or his assigns, one moiety of any surplus that may remain; and further, that he will keep full and accurate accounts of all moneys received by him for goods sold, or debts collected, as well as of moneys paid out, and will render a just, true, and full account therefor to the said Fifth — The said , for himself, etc., covenants to and with the said , etc., that, upon settlement of accounts, if it shall be found that the debts due and owing from the said firm exceed the amount of moneys received from the sale of the said goods, and the debts collected, he will pay unto the said , or his assigns, one moiety of any balance that may then be due and owing from the said firm. In testimony whereof, etc., (as in general form of assignment.) 3% MANUAL OF THE LA^Vf. ASSIGNMENT OF PARTNERSHIP PROPERTY AND DEBTS DUB BY ONE PARTNER TO ANOTHER FOR A CERTAIN SUM. This Indenture of two parts, made and concluded this day of , in the year iS.., by and between , of , , of the first part, and , of , , of the second part — witnesseth: That, whereas, the said parties were lately co-partners in the business of , which partnership was dissolved and deter- mined on the day of last; and whereas many debts due and owing to the said parties on account of their said co-part- nership, are still outstanding, and debts due by the said firm are yet unpaid; and whereas it is aigreed that the said party of the second part shall assign and release to the said party of the first part all his interest in the stock in trade, goods, and effects, belong- ing to the said firm, and in the debts now owing to the said firm, and that the said party of the first part shall assume all the debts and liabilities of the said firm, and shall discharge and indemnify the said party of the second part from all liabilities and losses arising from the said partnership. Now, therefore, in pursuance of the said agreement, and in con- sideration of the sum of , paid and secured to the said , he, the said , doth hereby fully and absolutely sell, assign, release, and rtiake over to the said , all his right, title, interest, and share, in and to all the stock in trade, goods, merchandise, machinery, tools, books, leasehold premises, and effects, belonging to the said partnership, of whatever kind or nature, and whereso- ever situated ; also, all his right, title, and interest in and to all the debts and sums of money now due and owing to the said firm, whether the same be by bond, bill, note, or account, or otherwise; and the said , doth hereby m ake and appoint the said his executors, administrators, and assigns, to be his attorney and attorneys, to receive all and several the debts and sums of money above mentioned, to his and their own use and benefit; and doth hereby authorize the said his executors, etc., to demand, col- lect, and sue for the said debts and sums of money, and to use his, the said name in any way or manner that the collection, recovery, and realization of the said debts and demands may ren- der necessary, as well in court as out of court, but at their own proper costs and charges, and without cost or damage to the said And the said doth hereby further authorize the said to convey and transfer to his own name, and for his own use and benefit, any and all sums of money and effects, real and personal estate, which may be taken or received in the name of the said firm, and to hold the same free from all claims by the said , his executors, administrators, or assigns. And these presents further witness, that, in pursuance of the said agreement, the said , for himself, his executors, and F0BM8 IN COMMON USB. S^S administrators, doth hereby covenant to and with the said , his executors and administrators, that he, the said , and his, etc., shall pay and discharge, and at all times hereafter save harm- less and indemnify, the said , his, etc., from and against all and every the debts, duties, and liabilities, which, at the dissolu- tion and termination of the said partnership, were due and owing by the said firm to anj' person or persons, for any matter or thing touching the said partnership, and of and from all actions, suits, costs, expenses, and damages, for, or concerning the said debts, duties, and liabilities, unless the said shall have contracted any debts or incurred any liabilities, in the name, and on account of the said firm, which are unknown to the said , and do not appear in the books of the said firm, for which, if any such exist, the said does not hereby intend to make himself responsible. In testimony whereof, etc. (as in general form of assignment). ASSIGNMENT OF A BOND BY ENDORSEMENT. Know all Men by these Presents, That I, the within- named , for, and in consideration of the sum of , to be paid by of , at or before the sealing of these presents, (the receipt whereof is hereby acknowledged), have granted, bar- gained, sold, assigned, transferred, and set over, and by these pres- ents do grant, bargain, sell, assign, transfer, and set over, unto the said , his executors, administrators, and assigns, the within- written bond or obligation, and the sum of , mentioned in the condition thereof, together with all interest due and to grow due for the same, and all my right, title, interest, claim and demand, whatsoever, of, in, and to the same. And I authorize the said . . . . , in my name to demand, sue for, receive, have, hold, and enjoy the said sum of , and interest, to his own use absolutely forever. In testimony, etc. (as in general form of assignment). assignment by a debtor to trustees, for the benefit of his creditors. This Indenture, made the day of , eighteen hun- dred and by and between , of , merchant, of the first part, , of , of the second part, and the sev- eral persons, creditors of the said party of the first part, who hare executed or shall hereafter execute or accede to these presents, of the third part — witnesseth: That, whereas, the party of the first part is indebted to divers persons in considerable sums of money, which he is at present unable to pay in full, and he is desirous to convey all his property 386 MANUAL OF THE LAW. for the benefit of all his creditors, without any preference or pn- ority other than that provided by law. Now, the party of the first part, in consideration of the premises, and of one dollar paid to him by the party of the second part, hereby grants, bargains, sells, assigns, and conveys, unto the party of the second part, and his heirs and assigns, all his lands, tene- ments, hereditaments, goods, chattels, property, and choses in action, of every name, nature, and description, wheresoever the same may, except such property only as is exempted by law from attachment. To have and to hold the said premises unto the said party of the second part, and his heirs and assigns. But in trust and confidence, nevertheless, to sell and dispose of the said real and personal estate, and to collect the said choses in action, using a reasonable discretion as to the times and modes of selling and disposing of said estate, as it respects making sales for cash or on credit, at public auction or by private contract, and with the right to compound for the said choses in action, taking a part for the whole, where the trustees shall deem it expedient so to do; then in trust to dispose of the proceeds of the said property in the manner following, viz.: Pirsi — To pay all such debts as by the laws of the United States or of this State are entitled to a preference in such cases; Second — To pay the costs and charges of these presents, and the expenses of executing the trusts declared in these presents; Third — To distribute and pay the remainder of the said pro- ceeds to and among all the parties of the third part, ratably, in proportion to their respective debts; (or, if there is a statute regu- lating the distribution, say,) according to the true intent and mean- ing of an act entitled "An act," etc.: And, if there should be any surplus, after paying all the parties of the third part in full, then in trust; Fourth — To pay over such surplus to the party of the first part, his executors, administrators, or assigns. And the party of the first part hereby constitutes and appoints the party of the second part his attorney irrevocable, with power of substitution, authorizing him, in the name of the party of the first part, or otherwise, as the case may require, to do any and all acts, matters, and things, to carry into effect the true intent and meaning of these presents, which the party of the first part might do if personally present. And the party of the second part, hereby accepting these trusts, covenants to and with each of the other parties hereto, to execute the same faithfully. And the party of the first part hereby covenants with the said trustee, from time to time, and at all times when requested, to give him all the information in his power respecting the assigned prop- erty, and to execute and deliver all such instruments of further assurance as the party of the second part shall be advised by coun- FOBMS IN COMMON USE. $87 gel learned in the law to be necessary in order to carry into full effect the true intent and meaning of these presents. And the parties of the third part, by signing and sealing these presents, express their assent to this assignment, and accept the provision for them made herein, pursuant to the statute aforesaid. In testimony whereof, etc. (as in general form of assignment). ASSIGNMENT OF A JUD01»NT. Title of I the \ Cause, ) Judgment and costs, $50.00. Judgment roll filed in the office of the clerk of .... on the .... day of ...., 18. .. For and in consideration of .... dollars to me in hand paid, I hereby sell, assign, and transfer to A. B. the judgment above mentioned, for his use and benefit, and authorize him to collect and enforce the payment thereof in my name or otherwise, but at his own expense, and covenanting that the sum of .... dollars, with interest from the .... day of , . . ., 18. ., is due thereon. In witness, etc. [Signature.] [Seal.] ASSIGNMENT OF TAX BID. For a valuablk considkration, to in hand paid, the receipt whereof is hereby acknowledged do by these pres- ents, assign, transfer and set over to of""**^"""'^""""l^l\""".""'"""'"!!!'!!!!^!!!! all claim, right, title, and interest, in and to the within cer- tificate of tax sale No , issued by the Treasurer of County, for taxes of tbe year 18. .. In testimony whereof, have hereunto set hand «nd seal this day of , iS. .. liit Pf In presence of "^^ 37 388 MANUAL OF THE LAW. State of Michigan, ) County of J On this day of , A. D. i8 . . , personally came before me, a in and for said County, the above named and acknowledged the foregoing assignment to be free act and deed. County, Mich. ASSIGNMENT OF MORTGAGE. 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, in hand paid by 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 eighty made and recorded in the Register's OiEce of the County of , State of Michigan, in Liber ". . . . of Mortgages, at page . . . , with all and singular the premises therein mentioned and described together with the or obligation therein also mentioned, and the moneys now due, and the interest that may hereafter grow due thereon ; to have and to hold the same unto the said part .... of the second part, heirs and assigns, forever, subject only to the proviso in the said indenture of mortgage mentioned. And do hereby authorize and appoint the said part .... of the second part, true and lawful attorney, irrevocable in name, or otherwise, but at proper costs and charges, to have, use, and take all lawful ways and means for the recovery of the sum or sums of money now due and owing, or hereafter to become due and owing, upon the said and mortgage ; and in case of payment to give acquittance or other sufficient discharge, as fully as might or could do if these presents were not made; and do hereby for heirs, executors, and administrators, covenant, promise, and agree to and with the said part. ... of the second part, that there is due uponthe said and mortgage the sum of ; 1 ^. — J l BIMM I ■ ■■■-■ f ^V^VJ ' * ^ "^ 3 » ^^ ^^ -!^ ^ .' • - f - if "' '"^^''"JI -""' **>,^.' H s J ffl ><■ fofi,Ms IN cokMoij tjst. and that ha . , good, right, and lawful authority to grant, bargain and sell the same in manner aforesaid. Sealed and delivered the day of , i88. .. I-! In presence of ) '"''^' State of Michigan, > County of y^' On this day of A. D. one thousand eight hun- dred and eighty , 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. Bills of Exchange and Promissory Notes. A Bill of Ex- change is a written order or request made by one person to another for the payment of money. A promissory note is a written prom- ise to pay a certain sum of money, at a future time, unconditionally. When payable to order or to bearer these instruments are nego- tiable, and are transferred by endorsement. The parties to a bill •f exchange are the drawer^ or one who makes it; the drawee or cne to whom it is payable, and the acceptor or one to whom it is directed. If the drawee indorses over to another person he becomes an endorser^ and the person to whom it is indorsed becomes the holder. If the bill on being presented to the drawee is not by him " accepted " it must be protested for non-acceptance, in order to hold the indorser. See Chapter on Notaries, page 285. The parties to a Promissory Note are the maker^ the payee, and 4he indorser. When duly indorsed a promissory note becomes in legal effect almost identical with a bill of exchange, and must like that instrument be " protested for non-payment " in order to hold liie endorser. For form of protest see page 286. The following are the forms in common use: BILL OF EXCHAXGB. |io,ooo. Detroit, Aug. 31, 1885. Thirty days after sight pay to the order of Messrs. Z. H. & Co. ten thousand dollars, and charge to the account of jj^ ^ T« Messrs. A. S. B. & Co., New York. 3d^ MANtlAL Of THE. LAW. ACCEPTANCE OF A BILL OF EXCHANGE. The usual form of accepting a bill of exchange is to write the word « accepted " with the name of the acceptor, across the face or on the back of the bill or draft. ANOTHER FORM OF BILL OF EXCHANGE. $i,ooo. New York, May i, i8... At sight [or days after sight, or days after date, or on the day of , i8 — ], pay to the order of C. D., one thou- sand dollars, and charge the same to account of Yours, etc., A. B. To Messrs. E. F. & S. H., New Haven. Bills of Exchange are of two kinds, J^'oreign and Inland. A Foreign Bill is one of which the drawer and drawee are residents of countries foreign to each other. In this respect the States of the United States are held foreign to each other. (3 Peters, 589). An Inland Bill is one of which the drawer and drawee are residents of the same State or country. A SET of foreign BILLS OF EXCHANGE. Ex. JCiooo Stg. New York, May I, 18... Ten days after sight of this my first of exchange (second and third unpaid), pay to E. F. or order one thousand pounds sterling, value received, and charge the same to the account of A. B. To Messrs. E. Bond & Co., London. Ex. jCiooo Stg. New York, May i, 18... Ten days after sight of this my second of exchange (first and third unpaid), pay to E. F. or order one thousand pounds sterling, value received, and charge the same to the account of To Messrs. E. Bond & Co., London. A. B. Ex. jC 1 000 Stg. New York, May I, 18... Ten days after sight of this my third of exchange (first and second unpaid), pay to E. F. or order, one thousand pounds ster- ling, value received, and charge the same to the account of A. B. T« Messrs. £. Bond & Co., London. fOUMS m COMMON USfe. ^9* COMMON FORM OF PROMISSORY NOTE. $990oa Lansing, Mich., Sept. i, 1885. Sixty days after date I promise to pay to the order of Jame» Gordon Bennett nine hundred and ninty-nine dollars at Lansing National Bank, with interest at seven per cent per annum. Value received. Oliver Cromw^zlu No. Due note not negotiatable. $450.00. ^^"^ ^°^''' J*"- '' '^^4- Ninety days after date, for value received, I promise to pay to James Brown four hundred and fifty dollars. John Curtis. The introduction of the words " or order " into the above note would render it negotiable. A negotiatable note. $1,000. Harrisburg, June 4, 1884- Sixty days after date, I promise to pay to James Brown, or order, one thousand dollars (insert interest if intended), without defalcation or discount, for value received. John Curtis. NOTE WITH SURETY. $7oa Albany, March 3, 1884. Ninety days after date, I promise to pay to A. B., or order, seven hundred dollars, for value received. C. D. E. F., Surety. A NEGOTIATABLE NOTE. $2oa Thirty days after date, for value received, I promise to pay to A. B., or order, two hundred dollars. C. D. 39* MANUAL OF THE LAW. A JOINT NOTE. $i,6oo. Peoria, 111., Sept i, 1885. Thirty days after date we jointly, but not severally, promise to pay to Carter Harrison, or order, sixteen hundred dollars, for value received, with interest at six per cent per annum. Miles Standish, Thomas Jones. If the above note were worded ^* jointly or severally " it would be a joint and several note, and could be collected from either of the makers. INDORSEMENT TO ORDER. Pay to the order of G. H. A. B. INDORSEMENT TO AGENTS, FOR COLLECTION. Pay to the order of the cashier of the First National Bank of New York, for collection. A. B. INDORSEMENT WITHOUT RECOURSE. Pay to the order of G. H., without recourse. A. B. DRAFT. $500. . New York, May i, 18... Three days after sight, pay to the order of A. B. five hundred dollars, value received, which charge to the account of Yours, etc., F. Keys & Ca Messrs. H. Smith & Co., Boston. CHECK. New "Vork, June i, 18... First National Bank of New York: Pay to John Smith or order, three hundred and fifty dollars ($35°)' James Brown. FORMS IN COMMON UsE. 393 Bills of Lading. A bill of lading is the written evidence of a contract for the carriage and delivery of goods, sent by water, for a certain freight. It is signed by the captain or master of the ship or vessel, and states, among other things, the names of the parties by whom the goods are shipped, and where and to whom they are to be delivered. There are generally three copies of the instru- ment, one of which is sent to the consignee of the goods by the ship which carries the goods, another by some other conveyance, and the third is kept by the merchant or shipper. The following is a common form: BILL OF LADING. Shipped, in good order and well conditioned, by [name the con- g signor of the goods], on board the [describe vessel] called « the [name vessel], whereof M. N. is master, now lying in tf the port of and bound for the port of ...., [here "I r-i designate the merchandise] being marked and numbered as ^ a in the margin, and are to be delivered in the like order and ^^ condition at the port of , (the dangers of the seas "o-gi only excepted), unto [name the consignee] or to hit .S S [or their] assigns, he or they paying freight for the said g „ .... with .... primage and average accustomed. In wit- "•3 NKSS WHEREOF, The master or purser of the said vessel * hath affirmed to (three) bills of lading all of this tenor and ^ date; one of which being accomplished, the others to stand ^ void. Dated in .... the .... day of . . . ., i8. .. [Signature of Master.] BILL OF LADING. Shipped, in good order and well conditioned, by A. B., on board the steamship called the Bothina, commanded by E. F., now lying in the port of Boston and bound for the port of Liverpool [here des- ignate the merchandise], being marked and numbered as in the margin, and are to be delivered in the like order and condition at the port of Liverpool (the dangers of the sea only excepted) unto C. D., or to his assigns, he paying freight for the said .... with .... primage and average accustomed. In witness whereof the master or purser of the said vessel hath affirmed to (three) bills of lading, all of this tenor and date; on« of which bemg accomplished, the others to stand void. Dated in .... the ... . day of . . . ., i8. .. E. F. The instrument given by the carrier of goods by land is some- what similar to a bill of lading, but is called a Shipping Rectift. 394 Manual of tke law. Bills of Sale. A bill of sale is an agreement in writing, under seal, by which one person conveys to another the right and title which he has in goods and chattels. Its most common use is to eflFect a transfer of personal property of which immediate pos- session cannot be given, By the maritime law, the transfer of a ship must generaly be done by a bill of sale. A bill of sale is usually sufficient to pass a title to personal property, even against creditors of the seller, provided it be made for a good consideration, and free from taint of fraud. A bill of sale, executed in fraud of creditors, is absolutely void. SHORT FORM OF BILL OF SALS. Know all Men by these Presents, That I, of , County of and State of , in consideration of dollars, to me paid by , of the same place, have bar- gained and sold to said , the following goods and chattels, to wit: one gray horse, one wagon, and three cows. In witness whereof I have hereunto set my hand and seal, this day of , A. D. i8. .. Signed, sealed, and delivered ) [seal.] in presence of J BILL of sale of GOODS. Know all Men by these Presents, That I^ of , County of and State of , for and in consid- eration of the sum of dollars to me in hand paid by , of the same place, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have bar- gained, sold, and delivered, and by these presents do bargain, sell, and deliver unto the said (insert a list of the goods sold): To have and to hold the said goods unto the said , his executors, administrators, and assigns, to his and their sole use and behoof, forever. And I, the said , for mysplf, my execu- tors and administrators, will warrant and defend the said bargained premises unto the said , his executors, admim^trators, and assigns, from and against all persons whomsoever- In witness whereof, etc Signed, sealed, and delivered ) fsxA!.] in presence of J f OEMS m COMMON VSt. 395 BILL OF SALE OF HOUSEHOLD GOODS, WITH SCHEDULE, ETC. Know all Men by these Presents, That I, .......... of , parish of and State of , in consideration of the sum of one thousand dollars, to me in hand paid by , of the same place, at and before the ensealing and delivery hereof, the receipt whereof I do hereby acknowledge, have bargained, sold, released, granted, and confirmed, and by these presents do bargain, sell, release, grant, and confirm unto the said , all the stock, goods, household stufl, implements of household, and all other goods and chattels whatsoever, mentioned and expressed in the schedule hereunto annexed, now remaining and being in the house lately occupied by me in said , and upon the plantation on which said dwelling house stands; to have and to hold all and singular the said stock, goods, and chattels, and every of them, by these presents bargained, sold, released, granted, and confirmed, unto the said , his heirs, executors, administrators, and assigns, to his and tJneir only proper use and behoof, forever. In witness whereof, etc. Signed, sealed, and delivered ) [seal,] in presence of J Schedule. The following is a schedule of the goods and chattels granted in the foregoing bill of sale: [The schedule should set forth each article sold and signed by the seller in the annexed bill of sale.] BILL OF SALE OF A HORSE, WITH WARRANTY. Know all Men by these Presents, That I, , of , County of and State of , for and in consid- eration of the sum of dollars to me in hand paid by , of the same place, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have bar- gained, sold, and delivered, and by these presents do bargain, sell, and deliver unto the said (here describe the horse fully): To have and to hold the same, unto the said , his executors, administrators, and assigns, forever. And I do hereby warrant the said horse to be sound in every respect, to be free from vice, well broken, kind and gentle in single and in double harness, and under the saddle; and I do cove- nant for myself,- my heirs, executors, and administrators, with the said , to warrant and defend the sale of the said horse unto the said , his executors, administrators, and assigns, from and against all and every person or persons, whomsoever, lawfully claiming, or to claim the same. In witness whereof, etc. Signed, sealed, and delivered ) [seal.] in presence of ) 39^ Manual oj- tab law. BILL OF SALE COMMONLY USED IN MICHIGAN. Know all Men by these Presents, That of the of in the County of and State of , of the first part, for and in consideration of the sum of dollars, lawful money of the United States, to paid by of of the second part, the receipt whereof is hereby acknowledged, ha., bargained and sold, and by these presents do grant and convey unto the said part . . of the second part, executors, administrators, or assigns, all the belonging to and now in possession at To have and to hold the same unto the said part.^ of the second part, executors, administrators, and assigns, forever. And the said part ... of the first part for heirs, executors, and administrators, do covenant and agree to and with the said part. . . of the second part, executors, administrators, and assigns, to warrant and defend the sale of the said property, goods, and chattels hereby made, unto the said part. .. of the sec- ond part, executors, administrators, and assigns, against all claim or claims, and every person or persons whatsoever. In witness whereof, .... have hereunto set .... hand and seal this .... day of . . . . , one thousand eight hundred and Signed, sealed, and delivered ) [seal.] in presence of V [seal.] [seal.] BILL OP SALE OF A VESSEL. To ALL TO WHOM THIS BiLL OF SaLE SHALL COME ! KnOW ye. That part ... of the first part for and in consideration of th« sum of to in hand paid, at or before the enseal- ing and delivery of these presents, by part. . . of the second part, the receipt whereof is hereby confessed and acknowl- edged, ha... granted, bargained, sold, assigned, transferred, and delivered unto the said part. . . of the second part, the good together with all and singular, her anchors, chains, cables, masts, rigging, tackle, apparel, and furniture of every name, kind, and description whatever, the certificate of whose last enrollment is in the words and figures following, viz.: FORMS IK COMMOK USB. 397 ENROLLMENT No. Enrollment in conformity to Title Z, ^'■Reg- ulation of Vessels in Domestic Com- merce" of the Revised Statutes of the United States. OFFICIAL NUMBU. l7lTUI1tAIil. LZTTBB*. having taken and subscribed the required by law, and having that he . . , together v?ith .citizen., of the United States, sole owner., of the ship or vessel called the , of , whereof is at present Master, and as he hath is a citizen of the United States, and that the said ship or vessel was built at in the year i8 . . , as appears by And having certified that the said ship or vessel has deck . . and mast . . , and that her length is TTT feet her breadth................ ....... . . . ...... . nr feet her depth . . nr feet her height nr feet that she measures and .... hundredths tons, viz. : TONS. lOOTHS. Capacity under tonnage deck ....... ............. Capacity between decks above tonnage deck Capacity of inclosures on the upper deck, viz. i ....... Total Tonnage ... That the following described spaces, and no others, have been omitted. : that she is a , has a stern and head. And the said having agreed to the description and measurement above specified, and sufficient security having been given according to the said title, the said ship or vessel has been duly enrolled at the port of Given under my hand and seal, at the Port of [l. S.1 in the District of this day of , in the year one thousand eiffht hundred and seventy- ^ [!"«•] Naval Officer, Collector ej Customs. 39* MAITOAIi OF THE LAW. To have and to hold, the said and the appurtenances thereunto belonging, unto the said part. . of the second part heirs and assigns, to sole and only proper use, benefit, and behoof, forever. And the said part. . of the first part, do .... hereby covenant, promise and agree, to and with the said part . . of the second part, heirs and assigns, that at the time of the ensealing and delivery of these presen's, , the said part. . of the first part, sole, true, and lawful owner of the said vessel and of the appurtenances thereunto belonging; that they are free from all liens and incumbrances, and that will forever warrant and defend the same against the lawful claims or demands of all persons whatsoever. In witness whereof, the part . . of the first part hereunto set hand . . and seal . . at the city of .... this day of , A. D. 1S7... In presence of ) [seal.] J [SHAL.I Bonds. A bond is a written instrument, under seal, by which the maker acknowledges some debt, liability, or duty, which he agrees to discharge or in default to pay a penalty therein named. The maker of a bond is called the obligor, the person to whom it is made, the obligee. A bond for the payment of money at an appointed day, without expressing any condition which may render the bond void, is called a single bond. It is very much like a note. It is usual, however, to add a condition that if the obligor performs some particular act, the obligation shall be void; other- wise it shall remain in full force and virtue. The penalty in a bond is usually fixed at double the amount of the real debt, for the purpose of securing the full debt with inter- est, and costs if necessary. If the debt secured is not paid, or the obligation, whatever it may be, is not perfermed, the penalty becomes due; but all that can be recovered out of it is the actual debt with interest and costs, or the actual damages that have been occasioned by the breech. The maker of a bond binds himself, his heir, executors, and admin- istrators. The effect of this is to render the heirs liable up to the extent which they inherit from the obligor. It is customary to have one or two sureties to bonds. Sureties are bound the same as the obligee, unless the bond expresses otherwise. They are relieved if the obligee alters the obligation without their consent. POEMS IN COMMON USB. 399 Bonds are used to secure the payment of money, or the perform- ance of some act, or the faithful discharge of the duties of some office, etc. Bonds are often made with one or two sureties whose names appear as such in the body of the instrument and who sign and seal the bond the same as the principal does, and who thus become liable to pay the bond if the principal does not. Bonds may be witnessed and acknowledged. Though this is not necessary to their validity it is sometimes desirable to have it done. It may be well to explain here that a bond is an obligation under seal to pay money. It is sometimes used simply to secure the payment of money, like a promissory note is. But it is gen- erally used to secure the doing of some thing else (anything that the obligor may contract to do) on the ■penalty of paying a certain sum of money if the thing is not done. The thing to be done is called the "condition " of the bond. If it is performed the bond becomes void. If the condition is not performed the bond becomes payable; and under the early common law the whole amount of the bond, no matter how large or how greatly in excess of the damages occasioned by the failure to perform the condition, became payable to the obligee. But the courts have in modern times endeavored to mitigate the severity of such a contract, and now the law will allow only a recovery under a bond of such an amount as will indemnify the obligee for the loss and damage he has sustained by reason of the obligor's failure to perform the con- dition of the bond. COMMON FORM OF BONp. Know all Men by these Presents, That I, , of . . . ., County , and State of , am held and firmly bound unto , of the same place, in the sum of ... . dollars, lawful money of the United States, to be paid to the said , his certain attorney, executors, administrators, or assigns; to which payment well and truly to be made, I do bind myself, my heirs, executors, and administrators, firmly by these presents: sealed with my seal, and dated this .... day of . . . . , A. D. one thousand eight hundred and The condition of this obligation is such, that if the above- bounden , his heirs, executors, administrators, or any of them, shall and do well and truly pay, or cause to be paid, unto the aforesaid , his executors, administrators, or assigns, the 400 MANUAL OP THE LAW. full and just sum of dollars, lawful money, as aforesaid, with legal interest for the same, on or before the day of next, without fraud or further delay, then this obligation to be void and of none effect, otherwise to be and remain in full force and virtue. Signed, sealed, and delivered ) Fsbal,'] in presence of \ JUDGMENT BOND. If a judgment bond be desired, add to the above, after the con- dition, as follows: And further, I do hereby empower any attor- ney of any of the Courts of Record, of this State, or elsewhere, to appear for me, and after one or more declarations filed for the above penalty, thereupon to confess judgment, or judgments, against me, as of the then last, next, or any subsequent term, with release of errors, costs of suits, etc. BOND FOR THB FIDELITY OF A CLERK, TREASURER, CASHIER, TELLER, ETC. Know all Men by these Presents, That we, A. B., of the town of . . . . , in the county of .... and State of, and C. D., of, etc., are held and firmly bound unto E. F., of the town of . . . ., in the county of, and State of , merchant, in the sum of dollars, lawful money of the United States, to be paid to the said C. D., his executors, administrators, or assigns, for which pay- ment, well and truly to be made, we do bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated this .... day of . . . ., i8. .. Whereas, the above named E. F. has employed H. M. as (here insert the position to be held), in their business of. ... : Now, the condition of this obligation is such, that if the said H. M. shall well and faithfully (or with honesty and in good faith) discharge his duties as such , and shall also account for all moneys and property, and other things which may come into his possession or under his control therein, then this obligation is to be void, other- wise to remain in full force. [Signature and seal.] Signed and sealed in presence of fName of witnesses.! FOKMS m COMMON USE. 40 1 CONDITION OF A BOND OF THE TREASURER OF A COMPANY. Whereas, The above-bounden has been chosen Treas- urer of the Company, and by reason thereof will receive into his hands divers sums of money, goods, chattels, and other things, the property of the said Company. Now, therefore, the condition of this obligation is such, that if the said , his executors or administrators, at the expiration of the term of his said office, shall, upon request to him or them made, make and give unto such auditor or auditors, or other officers, as shall thereto be appointed by the said Company, a true and correct account of all such sums of money, goods, chattels, and other things, as have come into his possession, by virtue of his office as Treasurer aforesaid, and shall and do pay over and deliver to his successor in the aforesaid office, or any other person duly authorized to receive the same, all such balances or sums of money, goods, chattels, and other things which shall remain on his hands and be by him due to the said Company, then this obligation to be void, otherwise to be and remain in full force and virtue. CONDITION OF A BOND TO INDEMNIFY LESSEE ON PAYMENT OF RENT. The CONDITION of this obligation is such, that, whereas the above-bound , by indenture of lease bearing date even here- with, hath demised and to farm let unto the said , all that certain messuage or tract of land (describing it), to hold the same to the said for the term of three years, he, the said , yielding and paying therefor the sum of four hundred dollars, in equal quarterly payments for each and every year of the term aforesaid, as in and by the said indenture appears; and whereas a certain claims title to the premises aforesaid with' the appurtenances. Now, therefore, if the said shall and do, from time to time, indemnify and save harmless the said , his heirs, executors, and admmistrators, and his and their goods, chattels, lands and tenements, of and from all actions, suits, costs, charges, payments, and damages, for or by reason thereof, then this obligation to be void, otherwise to be and remain in full force and virtue. CONDITION OF A BOND OP INDEMNITY TO DIECHAROK ENCUMBRANCES. The CONDITION of this obligation is such, that, whereas, the above-bound , by indenture bearing even date herewith, hath granted, bargained, and sold unto the said , a certain massuage or piece of land, situate (describing as in the deed), with 38 4^02 MANUAL OF THE LAW. the appurtenances; and whereas the said piece of land is subject to the Hen of a mortgage made by the said to , of said , and recorded in the ofKce for recording deeds in said county of , in Mortgage Book . . ., page 364, conditioned for the payment by the said , his heirs, executors, and administrators, unto the said , his heirs and assigns, of the sum of dollars, on or before the day of next, together with interest upon the same, as by a reference to said deed of mortgage will more fully appear. Now, therefore, if the said do and shall, on or before the said day of , pay the said sum of five hundred dollars, together with interest and costs, if any, in full, and procure full and complete satisfaction of said mortgage to be entered of record in said ofRce, and do and shall, from time to time, and at all times hereafter, well and sufficiently indemnify and save harmless the said his heirs, executors, and administrators, of and from the said mort- gage, and of and from all suits, payments, costs, charges, and" damages, for or by reason thereof, then this obligation to be void and of none effect, otherwise to remain in full force and virtue. BOND OF INDEMNITY ON PAYING LOST NOTB. Know all Men, etc., (as in Common Bond.) Whereas, the said , on the day of August, 18.., did make, execute, and deliver unto the above-bounden , for a valu- able consideration, his promissory note, for the sum of one hun- dred dollars, written due and payable on or before the day of , then next, with interest, which said promissory note the said , since the delivery of the same to him as aforesaid, has in some manner, to him unknown, lost out of his possession; and whereas, the said hath this day paid unto the said the sum of dollars, the receipt whereof the said doth hereby acknowledge, in full satisfaction and discharge of the said note, upon the promise of the said to indemnify and save harmless the said in the premises, and to deliver up the said note, when found, to the said , to be cancelled. Now, therefore, the condition of this obligation is such, that if the above-bounden , his heirs, executors, or administrators, or any of them, do and shall, at all times hereafter, save and keep harmless the said , his heirs, executors, and administrators, of, from, and against the promissory note aforesaid, and of and from all costs, damages, and expenses, that shall or may arise therefrom; and also deliver, or cause to be delivered up the said note, when found, to be cuncelled, then this obligation to be void, else to remain in full force and virtue. Sealed, etc., (as in common bond.) JOKMS IK COMMON USE. 4^3 BOND OF INDEMNITY FOR TAKING GOODS ON EXECUTION, SOME- TIMES REQUIRED BY CONSTABLES AND SHERIFFS. (As in common form to and including the date, and then as follows) : Whereas, the said, the said O. R. (the constable or sheriff), as constable (or sheriff) as aforesaid, is about to seize and levy upon certain goods and chattels, to wit: (describe the property ) by virtue of an execution issued upon a judgment in favor of the said A. B. against C. D., by L. M., Esquire, a justice of the peace of the township of .•....., in the county of , with intent to sell the same, which said property is alleged by the said A. B. to be the property of the said C. D.; and whereas, the said O. R. requires to be indemnified in the premises. Now, therefore, the condition of this obligation is such, that if the said A. B. shall at all times keep the said O. R. harmless and indemnified from and against all damages, costs, charges, trouble, and expense, of what nature soever, which he may be put to, sus- tain or suffer by reason of such levy and seizure, or of the subse- quent proceedings thei eon, then this obligation is to be void, other- wise of force. [Signatures and seals.] MONEY BOND. Know all Men by these Presents, That held and firmly bound unto in the sum of dollars, to be paid to the said , or to certain Attorney, Executors, Administrators, or Assigns. For Which Payment, well and truly to be made, bind and Heirs, Executors and Administrators, jointly, and severally, firmly by these presents. Sealed this 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, Adminis- trators, shall and do well and truly pay or cause to be paid, unto the above named certain Attorney, Executors, Administrators, or Assigns, the sum of without fraud or delay, then the preceding obligation to be void, otherwise to remain ip full force and virtue. [Signature and seal]. Sealed, and delivered in presence of \ 404 MANUAL OF THE LAW. MEGOTIABLE BOND OF A CORPORATION. [_Tiiie of the Corporation.'^ No. $ This certifies that the Railroad Company has received the sum of one thousand dollars from Y. Z., and in consideration thereof doth hereby promise and agree to pay to him, or to the bearer (or to his assigns), the said sum of one thousand dollars, on the day of , 188-; and also interest on the same at the rate of per centum per annum, on the day of in each and every from the date hereof until the said principal sum shall be paid, upon presentation of the annexed interest warrants, as they severally become payable, at the office of the company, in the city of In witness whereof, and in pursuance of a resolution of the Board of Directors, passed on the day of , [seal. J 188., the corporate seal of said corporation is hereto affixed, and these presents duly signed by the President and Treasurer of the said Company this ... day of . . . . , 18S.. l\easurer. President. KORM OF COUPONS, OR INTEREST WARRANTS, ANNEXED TO NEGOTIABLE BONDS. No. $ The Company promise to pay fifty dollars, semi- annual interest, due on the day of , 188—, upon their bond number on presentation hereof at their office in the city of [Signature.] BOND OF TENANT, WITH SURETY, FOR THE PAYMENT OF RENT. (The penal clause may be the same as in common form.) Whereas, The above named Y. Z., by indenture of lease bearing even date with the above written obligation (or, bearing date the day of ) for the consideration in the said lease mentioned, hath demised to the above bounden A. B. certain premises with the appurtenances situate in , for the term of years from thence next ensuing (determinable, neverthe- less at the end of the first years of the said term, if the said , his executors, administrators, or assigns, shall give months' notice thereof in manner therein mentioned), at and for the yearly rent of dollars, payable (quarterly) as therein expressed. FOEMS IN COMMON USE. 4O5 Now the condition of this obligation is such, that if the above bounden A. B. and C. D., their heirs, executors or administrators, or any of them, shall, during the continuance of the said lease, well and truly pay, or cause to be paid, to the said Y. Z., his executors, administrators or assigns, the yearly rent or sum of dollars in equal quarter yearly payments, on the days of (designating the month), or within days next after every of the said quarter days, according to the true intent and meaning of the said recited lease (subject, nevertheless, to the determination thereof, in manner as aforesaid), then the above written obligation is to be void; but if default shall be made in any of the said quarterly payments, then this obligation shall remain in full force. ^Signatures and seals.] administrator's bond. State of Michigan, ) dzj/-j^ j^^ County of Wayne. \ ''' ^''°^''*' ^°"''* f""" '"^^ County. In the Matter of the Estate of , deceased. Know all Men by these Presents, That we, within the State of Michigan, are holden, and stand firmly bound and obliged unto , Esq., Judge of Probate in and for said County of Wayne, in the full sum of dollars, lawful money of the United States of America, to be paid unto the said , his successors in the said office, or assigns ; to the true payment whereof we do bind ourselves, and each of us, our and each of our heirs, executors, and administrators, jointly and severally, for the whole and in the whole, firmly by these presents. Sealed with our seals. Dated the day of , Anno Domini one thousand eight hundred and eighty- Whereas, The above bounden ha., been appointed by the Probate Court of said County, administrat . . . . of the estate of late of said County, deceased: Now the condition of this present Obligation is such. That if the above bounden shall well and truly perform, observe, and keep the conditions following, to wit: 1st. That he shall make and return to the Probate Court afore- said, within three months, a true and perfect inventory of all the goods, chattels, rights, credits, and estate of the said deceased, which shall come to possession or knowledge, or the pos- session of any other person for 2d. That he shall administer according to law, all the goods, chattels, rights, credits, and estate of the said deceased which shall at any time come to possession, or to the possession of any io6 MANUAL 6f the La^. Other person for and out of the same pay and discharge all debts and charges, chargeable on the same, or such dividends thereon as shall be ordered and decreed by the Probate Court aforesaid. 3d. That he shall render a true and just account of administration to the Probate Court aforesaid, within one year, and at any other time when required by such court. And, 4th. That he shall perform all orders and decrees of the P.robate Court aforesaid, by the said administrat to be performed in the premises. Then this obligation to be void and of no eflfect, or eke to abide and remain in full force and virtue. Signed, sealed, and delivered ) [l. s.' in presence of > f l. s.° EXECUTOR'S BOND. State of Michigan, ) t> i t r- t j- -j r^ j r^ , jr rj/ y ss. Probate Lourt for said County, Lounty of Wayne. \ -' -^ In the Matter of the Estate of , deceased. Know ALL Men~by THESE Presents, That we, within the State of Michigan, are holden, and stand firmly bound and obliged unto , Esq., Judge of Probate in and for the said County of Wayne, in the full sum of dollars, law- ful money of the United States of America, to be paid unto the said , his successors in the said office, or assigns, to the true payment whereof we do bind ourselves, and each of us, our and each of our heirs, executors, and administrators, jointly and severally, for the whole and in the whole, firmly by these presents. Sealed with our seals. Dated the ; . . day of , Anno Domini one thousand eight hundred and eighty- Whereas, The above bounden ha., been appointed by the Probate Court of said County of liite of said County, deceased: iVbw the condi- tion of this present Obligation is such, That if the above bounden shall well and truly perform, observe, and keep the conditions following, to wit: 1st. Th it he shall make and return to the Probate Court afore- said, within tlircc months, a true and perfect inventory of all the goods, chattels, rights, credits, and estate of the said deceased, which shall come to possession or knowledge, or the pos- session of any other person for 2d. That he shall administer according to law, and the will of the «aid te>tat.... all the goods, chattels, rights, credits, and estate f'oidts li,' coiiiioi^ use. 4^? of the said deceased which shall at any time come to pos- session, or to the possession of any other person for , and out of the same pay and discharge all debts, legacies and charges chargeable on the same, or such dividends thereon as shall be ordered and decreed by.the Probate Court aforesaid. 3d. That he shall render a just and true account of administration to the Probate Court aforesaid, within one year, and at any other time when required by such court. And, 4th. That he shall perform all orders and decrees of the Probate Court aforesaid, by the said to be performed in the premises. Then this obligation to be void and of no effect, or else to abide and remain in full force and virtue. Signed, sealed, and delivered ) in presence of J L. s. L,. s. L. S. WAYNE COUNTY, ss. At a session of the Probate Court in and foi said County, holden at Detroit, on the day of , A. D. 188-. I have examined and do approve of the foregoing bond, and order the same to be filed and recorded in the Probate Office of said County. , Judge of Probate. Certificates. The term «« certificate " is most commonly applied to the written statement of some fact made by some public officer in an official capacity. Thus a notary makes a certificate of the acknowledgment of a deed, the clerk of a court certifies to the correctness of copies from the court records, etc. CKRTIFICATB OF ACKNOWLEDGMENT BY A NOTARY. ^'|S9. State of Michigan, County ef On this day of , in the year one thousand eight hundred and eighty- , before me, the sub- scriber, a notary public in and for said County, personally appeared , to me known to be the same person described in and who executed the within instrument, and acknowl- edged the same to be free act and deed, , Notary Public, County, Michigan. 4o8 maktjal op the law. certificate to copy of paper on file. State of , County of , ) Clerk's Office, , 188-. \ ^^ I do hereby certify that I have co.mpared the foregoing copy of a (name the instrument), and of the indorsements thereon, with the original now on file in this office, and that the same is a correct transcript therefrom, and of the whole of said original. In testimony whereof, I have hereunto set [official seal.] my hand and affixed my official seal this .... day of ...., 188-. [Signature and title of officer.] certificate of county clerk as to official capacity AND authority OF NOTARY PUBLIC, ETC. 8S. State of Michigan, ) County of . J I, Clerk of said County, and Clerk of the Circuit Court for the County of , which is a Court of Record, having a seal, do hereby certify that , whose name is sub- scribed to* the certificate or proof of acknowledgment of the annexed instrument, and therein written, was, at the time of taking such proof or acknowledgment, a notary public in and for said County, duly commissioned and qualified, and duly auth- orized to take the same. And further, that I am well acquainted with the hand writing of such notary public, and verily believe that the signature to the said certificate or proof of acknowledg- ment is genuine. I further certify that said instrument is executed and acknowledged according to the laws of this State. In testimony whereof, I have hereunto set my hand [seal.] and affixed the seal of said court and county, at ...., tliis .... day of 18S-. [Signature and title.] Charter Parties. A charter farty is a contract of affreight- ment in writing, by which the owner of a ship or vessel lets the whole, or a part of her, to a merchant or other person, for the con- veyance of goods, for a particular voyage, or period of time, in consideration of the payment of freight. CHARTER PARTY GIVING POSSESSION TO THE HIRER. These articles of agreement, made and entered into this POBMS IN COMMON USE. 409 .... day of . . . ., A. D. i8. ., by and between A. B., of , of the fane part, Y. Z., of the city of , of the other part, witnesseth: the said party of first part has this day chartered and hired unto the said party of the second part the steamboat , of , (designating her port), and of the burden of .... tons, or thereabouts, with all the appurtenances, cables, anchors, chains, etc., which belong to said steamboat, for the term of .... months from the .... day of to be delivered at the port of But in case the said A. B. shall deliver the said boat at any time before said day, the said term shall take date from the time of delivery. For the use of said steamboat, said Y. Z. agrees and binds himself to pay to the said A. B. . . . . dollars, the payments to be made as follows : dollars on the delivery of said boat ; dol- lars on the day of . . . . , and dollars at the expiration of said .... months. And it is further understood, that the said Y. Z. shall be at all the expense of manning and furnishing said boat for the time above stated, and shall return the same to the said A. B. at the port of in as good condition as it now is, with the exception of the ordinary use and wear; and if the said Y. Z. shall at any time fail to fulfill on his part the said A. B. shall have the right to take possession of the said boat wherever the same be found. In witness w^hereof, the said parties have hereunto interchang- ably set their hands and seals, the day and year above written. Signed, sealed, and delivered ) [Signatures and seals.] in the presence of ) Chattel Mortgages. A chattel mortgage is a transfer of the title to chattels or personal property, with or without possession, as security for a debt or liability, and upon condition that the trans- fer shall be void if the debt or liability is paid or discharged. The general rules and doctrines governing real estate mortgages apply also to chattel mortgages. (See Chapter VI., page 54.) CHATTEL MORTGAGE. i Know all Men by thesb Presents, That party of the first part, being justly indebted unto party of the second part, in the sum of dollars, has, for the purpose of securing payment of the said debt and the interest thereof, granted, bargained, and sold, and by these presents do grant, bargain, and sell unto the said party of the second part the following goods and chattels, to wit: (carefully describe the articles). To have and to hold the same unto the said party of the second part, executors, administrators, and assigns for- 4iO MAilUAL 01" I'HE LAW. ever, which said goods and chattels, at the date hereof, are situate at , in the of , County of , State of , and are hereby warranted to be free and clear from all liens, conveyances, incumbrances, and levies (here mention any claims that the mortgage is made subject to). Provided always, and the condition of these presents is such, that if the said party of the first part shall pay or cause to be paid to the said party of the sec- ond part the debt aforesaid with interest, at the time, and in the manner following: (here state the time and manner of payment), then this instrument shall be void and of no effect, otherwise to be and remain in full force and virtue. And the said party of the first part hereby agree . . to pay the same at the time and in the manner aforesaid. And if default be , made in such payment, either in whole or in part, the said party of the second part is hereby authorized to take possession of and sell at public auction, after (state length of notice required), the goods and chattels hereinbefore mentioned, or so much thereof as may be necessary to satisfy and pay the whole of the said debt, interest, and reason- able expenses, and to retain the same out of the proceeds of such sale, the overplus, or residue, if any, to belong and to be returned to the said party of the first part. And the said party of the second part is hereby authorized at any time when he shall deem himself insecure, to take possessior^ of the said goods and chattels, and the same retain in some convenient place, at the risk and expense of the said party of the first part, until the said debt is fully paid, or the said goods and chattels are sold at auction in the manner herein- before specified. In witness whereof, the said party of the first party has here- unto set his hand and seal the . day of . . . . , in the year of our Lord one thousand eight hundred and Signed, sealed, and delivered ) I^*"} in presence of J ^~^ :::::::::;::::::::::: I^t CHATTEL MORTGAGE, SHORT FORM, WITHOUT WARRANTY. Know all men by these presents, that I, A. B., of , hereby sell and assign to Y. Z., of , all the tools and materials now in my shop at This grant is intended as a security for the payment of .... dollars, with interest, on or before the expiration of from the date hereof, which pay- ment, if duly made, will render this conveyance void, (Conclude as in preceding form.) "•^■— — --- - - - — Contracts. See agreements, page 358. See also the first chapter of this book, page 5? Coroners. The duties of coroners are prescribed in detail by the statutes of the several States. It would be impractical to give forms here, as they might not be of very general application. Commissioners of Highways. The duties of highway com- missioners are also prescribed by statute. They are charged with the general duty of laying out and discontinuing highways. They act usually upon petitions to them presented by interested free- holders. The following forms of petitions may be of use to the general public: APPLICATION TO LAY OUT A HIGHWAY. To the Commissioner of Highways of the Township of ., . ..., County of : The undersigned, freeholders of the said township of , do hereby make application to you to lay out a highway in a part of said township not included within tlie corporate limits of any city or village, and respectfully ask that you will proceed to lay out a highway as follows: Commencing at (here insert a description of the route of the proposed highway. ) Dated the day of . . . ., A. D [To be signed by seven freeholders of the township.] APPLICATION FOR DISCONTINUANCE OF HIGHWAY. To the Commissioner of Highways of the Township of , County of : The undersigned, freeholders of said township of , hereby make application to you, the said commissioner, to discontinue tlie highway in said township, running as follows: (describe the road to be discontinued), which said highway is not included within the corporate limits of any city or village. Dated at , the .... day of . , A. D. . . . ^ . (To be signed by seven freeholders of the township.) (If the application be for an alteration of highway, the above form can be changed accordingly.) 4.1 a MANUAL OS" THE LAW. Corporations. Corporations are formed either by virtue of special charters granted by the Legislature of tne State or by Con- gress, or under general laws which have been enacted in most of the States by which voluntary associations are permitted to assume corporate existence for special purposes. Private corporations are almost always formed under these general laws, and their charters or articles of incorporation should conform perfectly with the par- ticular statutes authorizing them. The following forms are drawn so as to have general application, but before making use of any one of them an examination should be made to see that it conforms to the requirements of the local statute. articles of incorporation for business company. State of , ) County of- . J We, the undersigned (naming at least three corporators), do by these presents, pursuant to and in conformity with the act of the Legislature of the State of , passed on the , entitled " An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes," (or whatever the title of the act may be), and the several acts of the said Legislature amendatory thereof, associate ourselves together, and form a body politic and corporate, and do hereby certify: 1. That the corporate name of the said company is (here insert name in full. ) 2. That the objects for which the said corporation is formed are as follows: (here state them with precision, but in general terms.) 3. That the capital stock of the said corporation shall be dollars, which shall be divided into shares of dollars each. 4. That the said corporation shall commence on the day of , in the year one thousand eight hundred and and shall continue in existence for the term of years. 5. That the number of trustees of the said corporation shall be , whose names are as follows, and who shall manage the concerns of the said corporation for the first year. (Names.) 6. That the names of the town and county (or, towns and counties) in which the operations of said company are to be carried on are (here designate them, and if more than one is named, add:) and the principal place of business of the said corpo- ration shall be the of in the County of and State of [Signatures.] FOEMS IN COMMON USE. 413 ARTICLES OF ASSOCIATION FOR A LITERARY OR SCIENTIFIC CLUB. The undersigned, residents of the State of , desiring to become incorporated under Act No. ... of the laws of . . , as amended, hereby adopt the following Articles of Association : First — The names of the parties associating in the first instance, and their residences, are as follows (state names and residences of incorporators. ) Seconds — The name of this association is the Club, and the place where its office for the transaction of business is located, is , , and the period for which it is incor- porated is thirty years. Third- — The object for which this association is organized is the promotion of the study of political and social science, the collection and dissemination of knowledge concerning the civil and political institutions of the State and Nation, and the establishment and maintenance of a library and reading room wherein may be col- lected and kept the current political literature of the times, and the standard works bearing upon the general subject of social science. In witness whereof we have hereunto set our hands this day of , A. D. 188.. [Signatures and incorporators. J CERTIFICATE OF ACKNOWLEDGMENT TO FOREGOING. State of • County of - -]' On this day of , A. D. 188 . , before me, the sub- scriber, a Notary Public in and for said County, personally appeared to me known to be the same persons described in and who executed the foregoing Articles of Association, and severally acknowledged the same to be their free act and deed, and that they executed the same for the intents and purposes therein named. , Notary Public. ARTICLES OF ASSOCIATION FOR A RELIGIOUS CORPORATION. We, the undersigned, two of the elders (or, churchwardens) of the church (or, two of the members of the church, or, of the con- gregation or, society) hereafter mentioned, hereby certify that, on the day of , 18 . '. , at a meeting of the male persons of full age, belonging to the church (or, congregation, or, society) for the purpose of incorporating the same, which meeting was held at , in the house where they statedly assemble for divine worship, and pursuant to notice duly given, upon the 4^4 MANUAL OF THE LAW. day of , and the day of , at the stated meetings of said congregation for public worship by M. N., the minister, (or, in the absence of the minister, by M. N., one of the elders, or, other officer or member according to the statute) of said church, the undersigned were nominated by a majority of the members present as returning officers; and that said male members did then and there elect, by plurality of voices (naming the trus- tees, not less than three nor more than nine), as trustees of the said church, congregation or society; and the said persons did then and there also determine by the like plurality of voices, that the said trustees and successors should forever hereafter be called and known by the name or title of (here designate title). In witness whereof, we have affixed our hands and seals at , this day of , i8. .. Signed and sealed in ) FSignatures and seals.l the presence of J [Signature of witness.] ENGAGEMENT TO TAKE STOCK IN A CORPORATION TO BS FORMED. The undersigned hereby engage with A. B. & C. D., proprietors of the Bank, and with each other, that they will take the number of shares in the Bank Company proposed to be formed, set opposite their respective names, and pay for them as stipulated. It is understood that the capital of the said company is to be dollars, in . , , . shares, of dollars each. It .is also understood and agreed that the representation to us that the profits of the business, viz. : . , . . dollars per annum, shall be sustained by an examination of the books of the present pro- prietors, or our obligations to take stock are null and void. [Date.] [Signatures and number of shares.] TRANSFER OF STOCK. Know all men that I, A. B., of for value received, do bargain, sell, assign, and transfer unto C. D., of . . . ., shares of capital stock, standing in my name, on the books of the company; and I do hereby constitute and appoint the said C. D. my true and lawful attorney, irrevocable, in my name or otherwise, but to his own use and benefit, and at his own expense and charges, to take all lawful ways and means for the recovery and enjoyment thereof. Witness my hand and seal the , . . . day of . . . ., A. D. i8. .. [Signature.] [Seal.] Signed, sealed, and delivered in the presence of [Signature of witness.] FOEMS IN COMMON USE. 415 PROXY. Know all men, that I, A B , of , do hereby appoint C D , of , my attorney, for me and in my stead to vote, as my proxy, at any election of the (designate the association and the officers to be voted for), according to the number of votes I would be entitled to cast, if I were then and there present. Witness my hand and seal the .... day of , 188.. [Signature and seal.] Signed, sealed, and delivered in presence of [Signatures of witnesses,] Deeds. In the chapter on deeds, page 37, may be found a pretty full consideration of the general requisites of these instru- ments. It will be well before making use of the forms to read that chapter A BARGAIN AXD SALB DEED. This indenture, made this .... day of in the year one thousand eight hundred and , between A, B., of , in the county of and State of , farmer (and C. B. his wife), of the first part, and E. F., of in said County, merchant, of the second part: Witnesseth, that the said party (or parties) of the first part, in consideration of the sum of dollars, to him (or them) paid by the said party of the second part, the receipt whereof is hereby acknowledged, has (or have) granted, bargained, and sold, and hy these presents does (or do) grant, bargain, and sell unto the said party of the second part, and to his heirs and assigns forever, all (here insert description of premises), together with all and singular the tenements, heredita- ments, and appurtenances thereunto belonging, or in any wise appertaining; and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof; and also all the estate, right, title, interest (dower and right of dower), property, pos- session, claim, and demand whatsoever, as well in law as in equity of the said party (or parties) of the first part, of, in, and to the above granted premises, and every part and parcel thereof. To have and to hold all and singular the above named premises, together with the appurtenances and every part thereof unto the said party of the second part, his heirs and assigns, forever. In witness whereof, the said party (or parties) of the first part has (or have) hereunto set his hand and seal (or their hands and seals) the day and year first above written. [Signature and seal.] Signed, sealed, and delivered in presence of [Signature of witness.] ^'6 MANUAL OP THE LAW. WARRANTY DKHD — LONG FORM. This indenture, made this day of in the year of our Lord one thousand eight hundred and ...,., between of the first part, and of the second part. Witnesseth, that the said part. . of the first part, for and in consideration of the sum of dollars, to in hand paid by the said part. . of the second part, the receipt whereof is hereby confessed and acknowledged, ha., granted, bargained, sold, remised, released, aliened, and confirmed, and by these presents do .... grant, bar- gain, sell, remise, release, alien and confirm unto the said part., of the second part, heirs and assigns, forever, all th. . . cer- tain piece or parcel of land situate and being in the of in the County of and State of known and described as follows, to wit: (insert description of the premises), together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining; and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof; and all the estate, right, title, interest, claim, and demand whatsoever, of the said part ... of the first part, either in law or equity, of, in, and to the above bargained premises, with the heredit- aments and appurtenances ; to have and to hold the said premises as above described, 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, for . . . .msel 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 the ensealing and delivery of these presents, . . . , well seized of the premises above described as of a good, sure, perfect, absolute and indefeasible estate of inheritance in the law, in fee simple and that the said lands, hereditaments, and appurtenances are free from all incum- brances whatever , and that 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 person or persons lawfully claiming, or to claim, the whole or any part thereof, will forever warrant and defend. In witness whereof, the said part. . . of the first part ha. . here- unto set hand . . and seal . . , the day and year first above written. ^^ i^i s\ ' Signed, sealed, and deliv- ) , -I l. s. j- ered in presence of JI..S.I FOEMS IN COMMON USE. 417 WARRANTY DEED SHORT FORM. This indenture, made this day of in the year of our Lord one thousand eight hundred and between .•T'. of the first part, and of the second part. Witnesseth, that the said part.. . of the first part, for and in consideration of the sum of dollars, to in hand paid by the said part ... of the second part, the receipt whereof is hereby confessed and acknowledged, do . . . by these presents grant, bargain, sell, remise, release, alien, and confirm unto the said part ... of the second part, and to heirs and assigns, forever, all certain piece or parcel of land, situate, lying and being in the of in the County of and State of , known and described as fol- lows, to wit: (insert description of premises), together with'all and singular the hereditaments and appurtenances thereunto belong- ing or in anywise appertainingjj To have and to hold the said premises as described, 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, for sel heirs, executors, and administrators, do ... covenant, grant, bar- gain, and agree, to and with the said part ... of the second part, heirs and assigns, that at the time of the ensealing and delivery of these presents w^ell seized of the above granted premises, in fee simple; that they are free from all incum- brances whatever, and that will, and heirs, executors, and administrators shall warrant and defend the same against all lawful claims whatsoever (here mention any claim that the deed is given subject to). In witness whereof, the said part. . . of the first part ha. . here- unto set .... hand., and seal., the day and year first above written. \B & Sealed and delivered | . . , j l. s. [ in presence of J '~'~ : {ti\ FORM OF WARRANTY DEED IN USE IN NEW YORK AND THE MID- DLE STATES. This indenture, made the day of in the year one thousand eight hundred and .,,..,.., between ....... 39 41 8 MANUAL OP THE LAW. part. . . of the first part, and of the second part. Wit- nesseth, that the said part. . . of the first part, for and in consider- ation 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, for- ever, released and discharged from the same, by these presents ha . . . granted, bargained, sold, aliened, remised, released, con- veyed, and confirmed, and by these presents do. . . grant, bargain, sell, alien, remise, release, convey, and confirm, unto the said part. . . of the second part, and to heirs and assigns, for- ever, all (insert description of the premises), together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and rever- sions, 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, tha t 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 grant, bargain, sell, and convey the same, in manner aforesaid; and that the said part ... of the second part, heirs and assigns, shall and may at all times hereafter, peaceably and quietly have, hold, use, occupy, possess, and enjoy the above granted premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, molestation, eviction, or disturbance of the said part ... of the first part, heirs or assigns, or of any other person or persons lawfully claiming or to claim the same. And that the same now are free, clear, discharged, and unencumbered, of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and encumbrances of what nature or kind soever; and also, that the said part. . . of the first part, and heirs, and all and every person or persons whomsoever, lawfully or equitably derivmg any estate, right, title, or interestj_^ of, in, or to the hereinbefore granted premises, by, from, under or in trust for them, shall and will, at any time or times roKMs m COMMON USE. 419 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 reasonable 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 sec- ond 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 hereunto set hand. . . and seal. . . the day and year first above written. Sealed and delivered in the presence of certificate of acknowledgment of above. State of , ) OF , I 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. A DEED POLL OF WARRANTY, IN USE IN NEW ENGLAND. Know all Men by these Presents, That I (insert grantor's name), of (insert town. County and State), in consideration of (insert amount paid), to me paid by (insert grantee's name), of (give grantee's residence), the receipt whereof is hereby acknowl- edged, do hereby give, grant, bargain, sell, and convey unto the said (grantee) the following described premises, to wit: (insert accurate and complete description of the property conveyed). To have and to hold the above granted premises to the said (insert grantee's name) his heirs and assigns, to his use and behoof for- ever. And I, the said (insert grantor's name), for myself, and for my heirs, executors, and administrators do covenant with the said 4^20 MANUAL OF THE LAW. (insert gp-antee's name), and with his heirs and assigns, that I am lawfully seized in fee simple of the aforegranted premises; that the same are free from all incumbrances (if there be any incumbrance subject to which the premises are bought, as a mortgage or a lien or right of way, etc., add the word excepting, and then describe the incumbrance); that I have good right to sell and convey the same to the said (insert grantor's name), and to his heirs and assigns forever as aforesaid ; and that I will, and my heirs, execu- tors, and administrators shall warrant and defend the same to the said (insert grantee's name), and his heirs and assigns forever, against the lawful claims and demands of all persons. In witness whereof, I, the said (insert grantor's name) and (insert his wife's name), wife of said (grantor) in token of her release of all right and title of and to dower in the said premises, have hereunto set our hands and seals this day of , A. D. i88.. r.^.r T , I SEAL.] Signed, sealed, and delivered ) [seal.] in presence of i' Commonwealth of . . County of On this day of , A. D. i88., personally appeared before me, a justice of the peace in and for said County, the above named , to me known as the persons who executed the above instrument and acknowledged jthe same to be their free act and deed before me. yustice of the Peace. QUIT-CLAIM DEED — LOXG FORM. This indenture, made the day of , in the year of our Lord one thousand eight hundred and between of the first part, and of the second part, Wit- nesseth, that the said part ... of the first part, for and in consider- ation of the sum of , to in hand paid by the said part ... of the second part, the receipt whereof is hereby confessed and acknowledged, do . . . by these presents grant, bargain, sell, remise, release, and forever quit claim unto the said part. . . of the second part and to heirs and assigns, forever (insert description of property), together with all and singular the heredit- aments and appurtenances thereunto belonging, or in anywise appertaining; to have and to hold the said to the said part ... of the second part, and to heirs and assigns, to the sole and only proper use, benefit and behoof of the said part, , , of the second part . , . . . heirs and assigns, forever. POBMS m COMMON USE. 421 In witness whereof, the said part. . . of the first part ha. . here- unto set hand and seal the day and year first above written. Signed, sealed, and delivered " in presence of \ m CIRTIFICATE OF ACKNOWLHDGMKNT TO FOREGOING. ::! ss. State of .... County of . , On this day of , one thousand eight hundred and , before me, in and for said County, per- sonally came the above named , known to me to be the person who executed the foregoing instrument, and acknowl- edged the same to be free act and deed [Signature and title of acknowledging officer] QUIT-CLAIM DEED WITH WARRANTY AGAINST THE GRANTOR's own acts This deed is the same in form as the preceding one, except that it contains the following clause, which should be inserted just before the attestation: And the said A. B. for himself, his heirs, executors, and admin- istrators, does hereby covenant, promise, and agree to and with the said party of the second part, his heirs and assigns, that he has not made, done, committed, executed, or suffered any act or acts, thing or things whatsoever, whereby or by means whereof, the above mentioned and described premises, or any part or parcel thereof, now are, or at any time hereafter, shall or may be impeached, charged, or encumbered, in any manner or way whatsoever. Where a homestead right is to be released by the wife a para- graph like the following should be inserted just before the clause commencing " In witness whereof : " "And I (name the wife), wife of the said (name the grantor), in consideration of one dollar to me paid oy the said (name grantee), the receipt whereof is acknowledged, do hereby release and assign to the said (name the grantee) and his heirs and assigns all my right, interest, claim, and estate in and to the premises above granted, under the homestead laws of this State, or any other statutory provisions thereof." Where it is required that the wife shall acknowledge the deed separate and apart from her husband, a form of acknowledgment like the following may be uf ^ 423 MANUAL OP THE LAW. ::1 ss. State of . . Ceunty of On this .... day of , in the year one thousand eight hun- dred and , before me, the subscriber, a in and for said County, personally appeared , to me known to be the same person. . described in and who executed the within instrument, who acknowledged the same to be free act and deed. And the said , on a private examination by me, separate and apart from said husband, acknowledged that executed the same freely, without any fear of, or compulsion from any one. , [Signature.] [sbal.] ATTESTATION OF A DEED IN WHICH ERASURES OR INTER- LINEATIONS APPEAR. In witness whereof the said party of the first part has hereunto set his hand and seal the day and year first above written. Sealed and delivered in the pres- ^ ence of [the word " seven " on the first page was erased, the words " be the same more or less " writ- ten over an erasure on the third page, and the words "dower and right of dower " cancelled on third page before execution.] [Signatures of witnesses.] DEED BY A CORPORATION. This indenture, made this day of in the year one thousand eight hundred and , between the (insert the legal title of the corporation), of .... parties of the first part, and E. F., of the same place, party of the second part, witnesseth, that the said parties of the first part, in consideration of the sum of dollars (thence proceeding as in other deeds to the covenants, each of which will begin thus : ) And the said parties of the first part (or name the corporation), for themselves and their successors, do covenant (etc., continuing as in other cases). In witness whereof the said par-^ ties of the first part have hereunto caused their corporate seal to be affixed and these presents to be subscribed by (insert president, cashier, or officer, as the corpora- tion may order). [Corporate seal.] [Signature of officer.] FOEMS IN COMMON tfSE. 423 DEED BY ATTORNEY. This indenture, made the day of in the year of our Lord one thousand eight hundred and , between A. B., of , County of and State of , and C. B., his wife, of the first part, by E. F., their attorney in fact, specially thereto constituted by power of attorney, dated the day of , 18. ., and recorded in (reciting the proper office), as by reference thereto will more fully appear, and E. J., of . . . ., County of .... and State of , of the second part, witnesseth, etc. (proceed- ing as in foregoing, and concluding as follows) : In witness whereof, the said parties of the first part, by E, F., their attorney in fact, have hereunto set their hands and seals the day and year first above written. Signed, etc., A. B. [seal.J C. D. [seal. By E. F., their attorney^ DEED OF GIFT. This indenture made this day of , one thousand eight hundred and , between A. B., of , in the County and State of (and C. B. his wife), of the first p;irt, and E. J. B., of the same place, son of the said A. B., of the second part: Witnesseth, that the said A. B., for and in consideration of the natural love and affection which he has unto the said E. J. B., by these presents does give, grant, alien, enfeoff, and confirm unto the said E.J. B., his heirs and assigns, forever, all (here insert description of the premises): Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in any wise appertaining; and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and all the estate, right (dower and claim of dower), title, interest, prop- erty, claim, and demand whatsoever, of the said party (or parties) of the first part, of, in, and to the said premises, will the appurte- nances, and every part thereof. To have and to hold all a:nd sin- gular the above-granted premises, with the appurtenances, unto the said E. J. B., his heirs and assigns, forever. In witness whereof the party (or parties) of the first part has (or have) hereunto set his hand and seal (or their hands and seals), the day and year above written. [Signatures and seals.j Signed, sealed, and delivered ) in presence of \ [Signature of witnesses.] 424 MANUAL OP THE LA^. TRUST DEED. This indenture made the .... day of . . . ., in the year one thousand eight hundred and . . . ., between A. B., of , in the County of , and State of , (and C. B. his wife), of the first part, and C. D., of , in the said County, as trustee tor of the second part, witnesseth: that the said party (or par- ties) of the first part, in consideration of the sum of dollars to him (or them) paid by the said party of the second part, the receipt whereof is hereby acknowledged, has (or have) granted, bargained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents does (or do) grant, bargain, sell, alien, remise, release, convey, and confirm unto the said party of the second part, and to his heirs and assigns, forever, all (here insert description). To have and to hold all and singular the above-granted premi- ses, together with the appurtenances and every part thereof, unto the said party of the second part, his successors and assigns, tor- ever, in fee, upon the trusts, nevertheless, and to and for the uses, interests, and purposes hereinafter limited, described, and derlared — that is to say, upon trust to receive the issues, rents, and prorits of the said premises, and apply the same to the use of E. F., during the term of his natural life, and, after the death of the saia E. F., to convey the same by deed to S. T., in fee. In witness whereof the parties to these presents have hereunto interchangeably set their hands and seals the day and year lirst above written. [Signatures and seals.] Signed, sealed, and delivered ) in presence of J [Signature of witness.] DEED OF A RIGHT OF WAY. This indenture made this .... day of . . . , , in the year . . . . , between A. B., of , County of and State of , part. . of the first part, and C. D., of , party of the second part: Witnesseth, that the said A. B. for and in consideration of the sum of .... dollars, lawful money of the United States, unto him well and truly paid by the said C. D., at and before the ensealing and delivery hereof, the receipt whereof is hereby acknowledged, hath granted, bargained, and sold, and does grant, bargain, and sell unto the said C. D., his heirs and assigns, the free and uninterrupted use, liberty, and privilege of, and passage in and along a certain alley or passage, of ten feet in breadth by one hun- dred feet in depth, extending out and from (describing the direction FOEMS IN COMMON USE. 425 of the way). Together with free ingress, egress, and regress to and for the said C. D., his heirs and assigns, and his and their ten- ants, under-tenants (if, for a cariage-way, here add, "with carts, vehicles, carriages, horses, or cattle, as by him or them shall be necessary and convenient") at all times and seasons forever there- after, into, along, upon, and out of the said alley or passage-way, in common with him, the said A. B., his heirs and assigns, and his and their tenants or under-tenants. To have and to hold all and singular the privileges aforesaid to him the said C. D., his heirs and assigns, to the and their only proper use and behoof, in common with him, the said C. D., his heirs and assigns, as aforesaid. (Here add, if desired, "Subject nevertheless, to the moiety or equal half part of all necessary charges and expenses, which shall, from time to time, accrue in paving, amending, repairing, and cleansing the said alley or pas- sage-way.") In witness whereof I have hereunto set my hand and seal this .... day of , 18. ., Signed, sealed, and delivered ) A. B. in presence of J [Signatures of witnesses.] executor's, administrator's, or guardian's deed. Know all Men by these Presents, That (insert name of executor, administrator, or guardian and the name of the estate for which he acts), pursuant to an order of the Judge of the Court of Probate for the County of and State of , held at the probate office in the in said County and State, on the day of in the year of our Lord one thousand eight hundred and , authoriz- mg, enapowering, and licensing him to sell at public auction, in conformity to the statute in such case made and provided, sufficient of the real estate whereof said (name of deceased or ward) was seized, for the purpose in said order mentioned, did sell at public auction, held at . . . . , in the .... of in the County of .... and State aforesaid, pursuant to legal notice, all the estate, right, title, and interest of said . . . . , in and to certain real estate and premises in said order set forth and hereinafter described, to (name of purchaser), he being the highest bidder therefor, which said sale was made by an order of said Judge of Probate, on the day of . . . . , in the year one thousand eight hundred and seventy- . . . ., duly confirmed, and the said directed therein to execute, acknowledge, and deliver a proper conveyance or con- veyances of said real estate so sold, to the purchaser thereof, agreeably to the statute in such case made and provided. 4^6 MANUAL OF THE LAW. Now know ye, that in pursuance of said several orders, and pro- ceedings above referred to, and in consideration of the sum of .... dollars, paid to me by said (name of purchaser), the receipt whereof I do hereby acknowledge, have sold, and do hereby give, giant, sell, and convey unto the said (name of purchaser), his heirs and assigns, forever (insert description of the premises); to have and to hold the above granted premises, wfith the appurtenances, to the said , his heirs and assigns, forever. And do hereby covenant with the said that will warrant and defend the said granted premises, with the appurtenances unto the said heirs and assigns, forever, against the lawful claims and demands of all persons claiming by, from or under , but against no other persons. In testimony whereof, .... have hereunto set .... hand and seal at . . . ., in the County of .... and State aforesaid, this day of . . . ., A. D. one thousand eight hundred and seventy-. Signed, sealed, and delivered ' in presence of I ::::::::: [ii] certificate of acknowledgment to foregoing. State of , ) County of J On this day of , A. D. one thousand eight hundred and , before me, a in and for said County, personally came the above named . . . . , known to me to be the person who executed the foregoing instrument, and acknowledged the same to be .... free act and deed, as executor (guardian or administrator) of .... as in said instrument described. ("Signature and title of acknowledging ofBcer.] Depositions. See affidavits. Divorce. Divorce is absolute or limited. Absolute divorce is a total dissolution by law of the marriage relation. Limited divorce is a legal separation which leaves the parties with none of the rights of marriage. It grows less frequent as the laws of divorce grow more liberal. Divorce is granted in all of the States for adultery, and also for impotency where it existed at the time of the marriage. The other causes for divorce are not the same in the several States. Generally willful desertion for more than two FORMS IN COMAION UsE. 4^7 years, habitual and long continued drunkenness, extreme and long practiced cruelty and the conviction of an infamous crime are made causes for divorce. The forms relating to the subject w^ould not be of general use, and are therefore omitted. Dower. See pages 16 and 258. Blank forms for use in assign- ment of dower, etc., can usually be got at the probate offices. Drafts. See Bills of Exchange and Promissory Notes. Division Fences. See Fences and Fence View^ers. Easements. See Chapter XI., page 88. Estrays. The statutes of the States generally provide simple proceedings for the disposal of straying domestic animals. See Chapter XIV., page 127. NOTICE TO TOWNSHIP CLERK, OF FINDING A STRAY ANIMAL. To the Townshif Clerk of the County of : Notice is hereby given, that on or about the .... day of , A. D one black horse, of the age of six years or thereabouts, and marked with a white star in the forehead, strayed upon my inclosed land in the said township of . . . ., and now remains there- upon, and that I reside in the said township of Dated this .... day of . . . ., A. D A. B. NOTICE OF SALE WHERE ESTRAY IS NOT REDEEMED. By virtue of the statute in such case made and provided, I shall expose to sale at public auction, to the highest bidder, on the day of .... instant (or next), at .... o'clock in the noon, at the house of R. F., in .., one chestnut horse of the age of seven years, or thereabouts, and marked with a star in his forehead, the same being a stray found upon my inclosed land in the town of . , and remaining unredeemed according to law. Dated the .... day of . . . ., 18.. A. B. Fences and Fence Tiewers. See Chapter XVI., page 142. This matter is regulated entirely by statute. The following forms are adapted to the statutes of Michigan, but will be found appli- cable by slight modification to those of many other States: 428 MANUAL OP THE LAW. COMPLAINT TO FENCE VIEWERS OF NEGLECT OR REFUSAL TO REPAIR OR REBUILD PARTITION FENCE. To B, O. and A. S., two of the Fence Viewers of the Township of : The undersigned, A. B., of said township, makes complaint and says that this complainant and C. D., of the same township, are occupants of adjoining lands therein, and that a partition fence has been constructed on the line between said lands, which are inclosed by the occupants thereof respectively, and that of right the said C. D. ought to maintain that portion of said partition fence on said line described as follows, to wit: (describing the same), that such portion of said fence has become decayed, broken down and out of repair, and ought to be rebuilt or repaired by the said C. C, but that he, the said C. D., hath neglected and still doth neglect to repair or rebuild the same, whereby this complainant is aggrieved, and he therefore prays that you, the said fence viewers, will pro- ceed to examine and determine the same, after due notice to the said C. D., as required by law. Dated this .... day of , A. D A. B. DETERMINATION OF FENCE VIEWERS ON COMPLAINT. Whereas, Complaint has been made to the undersigned, two of the fence viewers of the township of . . . ., in the county of . . . ., by A. B., of said township, setting forth that he, the said com- plainant, and C. D., of the same township, are occupants of adjoining lands therein, and that a partition fence has been con- structed on the line between said lands, which are inclosed by the occupants thereof respectively, and that of right the said C. D. ought to maintain that portion of said partition fence on said line described as follows, to wit: (describing it as in the complaint), and that such portion of said fence has become decayed, broken down and out of repair, and ought to be rebuilt or repaired by the said C. D., but that the said C. D. hath neglected, and still doth neglect to repair or rebuild the same, whereby he, the said A. B., is aggrieved, and praying that we, the said fence viewers, would proceed to examine and determine the same, after due notice to the said C. D., as required by law; and we having thereupon given notice to both of said parties that we would proceed to examine the same on the .... day of . . . ., at nine o'clock in the forenoon; and, whereas, on the day and year last aforesaid we were attended by the said A. B. and C. D., (or as the fact may be), and did pro- ceed to examine that portion of the said partition fence hereinbefore described, and found the same to be decaj^ed, broken down and out of repair: now- therefore, we do determine accordingly, and that FOBMS m COMMON USE. 429 the same ought to be rebuilt or repaired, and we do hereby direct the said C. D. to rebuild or repair the same within .... days from the date thereof. In testimony whereof, we have hereto subscribed our names, this .... day of . . . ., A. D ■p' q"' licence Viewers. CERTIFICATE OF VALUE OF REBUILDING OR REPAIRING PAR- TITION FENCE. We, the undersigned, two of the fence viewers of the township of . . . . , in the county of . . . . , having heretofore, on the complaint of A. B., examined that portion of the partition fence between the lands occupied by the said A. B. and C. D., respectively, in said township, and having determined the same to be out of repair, and to require repairing or rebuilding, and having certified the same to the said C. D., on the day of . . . ., and directed him to repair or rebuild the same within .... days from that date; and he, the said C. D., having neglected so to do, and the said A. B. having since the expiration of said last mentioned time rebuilt (or " repaired ") the same, we do, upon inspection thereof, adjudge the said fence so rebuilt (or "repaired") as aforesaid, to be good and sufficient, and we hereby certify that we have ascertained the value of such repairing (or "rebuilding") by the said A. B., to be the sum of dollars, and that the fees for our services in the premises amount to .... dollars. Given under our hands this .... day of . . . . , in the year •p ■ f-^'' > Fence Viewers. ASSIGNMENT BY FENCE VIEWERS OF SHARES OF DIVISION FENCE TO BE ERECTED OR REPAIRED BY OCCUPANTS. A. B. and C. D., being the occupants of certain adjoining lands in the township of , in the county of . . . . , and disagreeing concerning the respective portions of a division fence to be made (or "kept in repair ") by them respectively, and we, the under- signed, two of the fence viewers of the said township, having been applied to by them for that purpose, (or "having been applied to by the said A. B. for that purpose, and having given due notice to the said A. B. and C. D. of our present meeting for the determina- tion thereof,") do hereby certify that we have examined the premises, and heard the allegations of the said parties, (*) and after due deliberation thereon have determined, and do hereby deter- 43° MANUAL OF THE LA^. mine, that the said division fence be built as follows, to wit: (insert description), and that one-half of said fence, on the east end of said division line is the proper portion thereof to be built (or "to be repaired and kept in repair") by the said A. B., and that the remain- der of said fence is the proper proportion thereof to be built (or "repaired and kept in repair") by the said C. D. And we do hereby direct that each of the said parties build (or "repair") his proportion of said fence within .... months from this date. And we further certify that our fees for our services herein amount to the sum of .... dollars. Given under our hands, this . , , . day of . . . ., A. D Tj' q*' > -Pence Viewers. APPRAISEMENT OF FENCE WHEN ONE OCCUPANT HAS BUILT MORE THAN HIS SHARE. (As in preceding form to the (*), and then as follows): And it appearing to us that the said C. D. had, before any com- plaint made to us, voluntarily erected (or "become the proprietor of") the whole of the said division fence (or " more than his just share of said division "fence"), we do hereby certify that we have ascertained and determined the value of said division fence so built by said C. D., over and above his just share thereof, to be the sum of .... dollars, which sum is to be paid by the said A. B, to him, the said C. D., on account thereof. Given under our hands, this .... day of . . . ., A. D ■d' o"' [• Fence Viewers. NOTICE TO PARTIES OF MEETING OF FENCE VIEWERS TO DHTER- MINE CONTROVERSY. 7o A. B. and C. D. : The said A. B., having made complaint to the undersigned, two of the fence viewers of the township of ., in the county of , that the said C. D. has neglected and refused to rebuild or repair his proportion of the division fence between the lands occu- pied by you respectively, which he alleges to be out of repair, and having required us to view the same, and determine the matter of said complaint; now, therefore, you are hereby notified that we will meet for that purpose at the place where the said fence is sit- uated, on the .... day of next (or " instant"), at o'clock in the forenoon . Dated this . day of . , . , , A. D ■d" o"' [• Fence Viewers. rOBMS IN COMMON USE. 431 DETERMINATION OF FENCE VIEWERS WHHRE LAND IS DIVIDED BY WATER, Whereas, A. B., of the township of , in the County of , hath applied to the undersigned, two of the fence viewers of said township, to view the brook (or " river," or " pond," or " creelt," as the case may be,) which divides the land of the said A. B. fiom the land of the said C. D., and determine whether the same answers the purpose of a sufBcient fence, and if not, and if it should be impracticable, without unreasonable expense, to build a fence on the true boundary line between said parties, then to deter- mine how, or on which side thereof such fence shall be set up and maintained, or whether partly on one side and partly on the other; and whereas, after due notice to the said A. B., and C. D., we have, on this day of . . . ., A. D , proceeded to examine the premises, and have found and determined that the said brook (or "river," etc.) does not answer the purpose of a sufficient fence, and that it is impracticable, without unreasonable expense, to build a fence on the true boundary line between the lands of the said parties, we do therefore determine that the said division fence be built (state how, or on which side, or whether partly on one side and partly on the other, with sufBcient particularity so that its loca- tion can be easily ascertained). And we do hereby certify that our fees for our services herein amount to .... dollars. Given under our hands this .... day of . . . . , A. D -r.' q'' > J^ence Viewers, DIVISION OF LINE BETWEEN LANDS OCCUPIED IN COMMON. [In case of a disagreement between parties owning lands in severalty, which have been occupied in common, the proportion of partition fence to be built by each may be determined by fence viewers, and their determination wrill be substantially as in the form of assignment of shares of division fences generally.] DETERMINATION OF VALtJfi OP ONE-HALF OF PARTITION FENCE WHEN UNINCLOSED LANDS HAVE BEEN INCLOSED. Whereas, A. B. and C. D., being the owners of certain adjoin- ing lands in the township of , in the county of , and the said A. B. having, on or about the . day of , A. D. . . . ., erected a division fence between the land belonging to him and that of the said C. D., who allowed his own lands to lie open ; and, whereas, the said C. D. has recently inclosed the said land 433 MANUAL OF THE LAW. belonging to him; and a disagreement having arisen between the said parties as to the just proportion of the value of said division fence to be paid by the said C. D., and we, the undersigned, two of the fence viewers of said township, having been applied to for that purpose; having made due inquiry into the facts and circum- stances, and examined the premises, have determined, and do hereby determine, that the following is a correct description of the fence built by the said A. B., as aforesaid, to wit: (describe the fence); that the value of the said fence is the sum of ($60), and that the just proportion of the said value to be paid by the said C. D. to the said A. B. is the sum of ($30). And we hereby certify that our fees for our services herein amount to .... dollars. Given under our hands, this .... day of . . . . , A. D. L. M. H. R., :;1 Fence Viewers. AGREEMENT BETWEEN OWNERS OF ADJOINING LANDS TO DIVIDE AND MAINTAIN A PARTITION FENCE. This agreement, made this .... day of , A. D. 18.., between A. B., of the township of . . . ., in the county of , and State of Michigan, of the one part, and C. D., of the same township, of the other part, witnesseth, that whereas, the said A. B. has heretofore erected a fence on the division line between his lands and the lands of said C. D., in said township, which said fence commences at (describe the line of fence), and whereas, after the erection of said fence, the said C. D. erected a fence on the east side of said division line, so that .... rods of said fence, com- mencing at, etc. (describe the portion of fence) has become and now is a partition fence between the respective fields of the said A. B. and C. D,; and whereas, the said C. D. has paid to said A. B dollars, being in full for one-half of the value of said .... rods of fence, it is therefore agreed, in consideration of the premi- ses between the said parties, that the .... rods of fence on the north part of said .... rods, being the north half thereof, shall be well and sufficiently maintained and kept in repair by the said A. B., and the remainder of said .... rods shall be kept in like repair by the said C. D. In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written. In presence of A. B., E. F. C. B., rL.s.] D., [i..s.] FORMS IN COMMON USE. 433 NOTICE OF INTENTION NOT TO IMPROVE LANDS ADJOINING PARTITION FENCE. To CD.: You are hereby notified that I have determined not to improve any part of my lands adjoining the partition fence between our adjoining lands in the township of , in the County of , which said fence has been divided by two of the fence viewers of the said township (or "by agreement in writing between us"). Dated this .... day of . . . . , A. D Yours, etc., A. B. Foreclosure. Mortgages are foreclosed either by a proceeding in the Court of Chancery, or by advertisement under the pro- visions of the local statute where the mortgage contains a power of sale. See Chapter VI., page 65. The following form of advertisement will be found adaptable to the statutes of many of the States: MORTGAGE SALE. Whereas, default having been made in the conditions of a cer- tain mortgage made and executed on the thirtieth day of Novem- ber, A. D. 1877, by Frederick Klatte and Margaretta Klatte, his wife, of Wayne County, Michigan, to Collins B. Hubbard, of same County and State, which mortgage was recorded in the office of the Register of Deeds for Wayne County, Michigan, on December 24th, 1877, in Liber 136 of Mortgages, on page 303. And whereas, the amount claimed to be due and unpaid on said mortgage at the date of this notice is the sum of two thousand one hundred and eight dollars and thirty-six cents ($2,108.36) princi- pal and interest, and an attorney's fee of $50, as provided in said mortgage. And whereas, no suit or proceeding at law or in equity has been instituted to recover the debt secured by said mortgage, or any part thereof; Now, therefore, notice is hereby given that by virtue of the power of sale contained in said mortgage, and in pursuance of the statute in such case made and provided, the said mortgage will be foreclosed by a sale of the premises therein described, at public auction to the highest bidder, at the easterly front door of the City Hall, of the city of Detroit (that being the building in which the Circuit Court for the County of Wayne is held), on the twenty- seventh day of August, 1884, at 12 o'clock noon. Said premises are described as follows. All that parcel of land situated in the township of Greenfield, Wayne County, Michigan, known as the 8« 434 MANUAL OF THE LAW. east half of the southwest quarter of section five (5) in town one (i), south of range eleven (11) east, containing eighty (80) acres more or less. COLLINS B. HUBBARD, HENRY A. HAIGH, Mortgagee. Attorney for Mortgagee. Detroit, May 27, 1884. Guaranty. A guaranty is an undertaking to answer for another's liability, and is collateral thereto, or, in other words, it is a contract by which one person is bound to another for the fulfill- ment of a promise or engagement of a third party. It differs from a warranty, which is given in reference to the title, quality, or quantity of a thing sold. No special words are necessary to constitute a guaranty. If the party clearly shows that it is his intention to guaranty, it is sufficient. In order that the guarantor may be held, the guaranty should be in writing, signed by him. If the guarantor pays his principal's debt he is entitled to all the securities of the creditor. The conditions of the guaranty must be strictly followed, other- wise the guarantor will not be held. The guaranty must be founded on a consideration, otherwise it is of no force. It is a sufficient consideration if the party for whom the guaranty is given derives a benefit, or the party to whom it is given suffers an injury, because of his acting on the faith of the guaranty. No consideration need pass from the party receiving the guaranty to the guarantor. The agreement of both parties is necessary to make a guaranty binding on the guarantor. The guarantor can be held only for the amount agreed upon, or for the time men- tioned in the guaranty. If the principal fails to pay the debt, the guarantor should be notified. A guaranty is always revocable until it has been acted upon. GUARANTY OF PAYMENT OF NOTK. For value received, I hereby guarantee the payment of the within note. [Date.] [Signature.] FOEMS IN COMMON USE. 435 GUARANTY OF PAYMENT OF BOND. In consideration of the sum of one dollar to me in hand paid lay C. D., I hereby guarantee the payment of the foregoing bond. Witness my hand (and seal), the day of , 18.. [Signature, with or without seal. J GUARANTY OF RENT TO BE ATTACHED TO A LEASE. In consideration of the letting of the premises above mentioned to the above named A. B., and of the sum of one dollar to me paid by the said party of the first part, I do hereby covenant and agree, to and with the party of the first part above named, and with his legal representatives, that if default shall at any time be made by the said A. B. in the payment of the rent and performance of the covenants above contained on his part to be paid and performed, that I 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 my hand and seal this .... day of . . . . , in the year of our Lord one thousand eight hundred and [Name of witness.] fSignature.J GUARANTY OF COLLECTIBILITY, ETC. For value received, I hereby guarantee that the within is good (or, collectible). [Signature.] Highways. See Chapter XIII., page 112. The forms relat- ing to highways are for use mainly by highway officials, and are not therefore of service to the general reader. Some will be found under the title "Commissioner of Highways," page 411. The following will show the general style of these forms: RELEASE OF DAMAGES BY OWNER OF LAND. For and in consideration of one dollar to me paid, and hereby acknowledged, I, M. A., of the township of ...., Michigan, do hereby consent that a highway, running as follows: ( here describe the route) may pass over the following described lands and premises owned by me; (describe the lands, etc.) Aad I do +3<5 MANUAL OF THE LAW. hereby release to said township of ...., all claim to damages by reason of said highway running through my land and premises as aforesaid. Witness my hand and seal, this .... day of . . . ., A. D. i8.. M. A. [l. s.] ( This is usually to be filed in the office of the township clerk, and should be recorded by him). NOTICE TO PERSON IN FAULT TO REMOVE BUILDING IN PROCESS OF MOVING. ToA.B.: Sir — You are hereby notified and required to remove the build- ing, now in process of moving, from the highway, which is now obstructed thereby, to wit: (describing the highway) within two days after service of this notice, and in default thereof,' you will be liable to a penalty of five dollars per day for each and every day thereafter that said building shall remain unremoved. Dated this .... day of . , . . , A. D Commissioner of Highways of the Township of NOTICE TO TOLL ROAD COMPANY TO REPAIR ROAD. To the Company : You are hereby notified that a portion of your plank road (or "gravel road," or, as the case may be), has become defective and out of repair, to wit: that portion thereof (describing it), and that you are required to repair the same within thirty days from the receipt of this notice, and that in default thereof you will be liable to a penalty of fifty dollars. Dated this .... day of . . . ., A. D is. ,••• o...., Commissioner of Highways of the Township of. .... NOTICE BY OVERSEER TO OWNER OR I-OSSESSOR OF LAND, TO CAUSE CANADA THISTLES TO BE CUT. To O. P.: You are hereby notified that Canada thistles are now growing and in danger of going to seed on the land owned (or " possessed " or " occupied ") by you in the township of . . . ., that is to say, on the .... (describing the plage with sufficient certainty), and you F0EM8 m COMMON USE. 437 are hereby required to cause the same to be cut down within five days from the service on you of this notice. Dated this .... day of . . . . , A. D ^\. • • • • AJ • ■ ■ • y Overseer of Highways of District No overseer's list of persons liable to work on the highways. ■:\ County of . Township of . I, G. H., overseer of highways for road district number , of the said township, do hereby certify that the following is a true and correct list of all the inhabitants w^ho are liable to work on highways in said road district number . . . . , viz. : G. M., H. C, W. T. Y., H. S., J. B., A. E. Dated the .... day of , A. D G. . .. H. , . ., Overseer of Highways. Horses. See pages 219 and 232. The only blank form likely to be needed in connection with horses is that for a warranty of soundness, or other warranty. The warranty may be readily included in the receipt for the purchase price, as follows: receipt with warranty. New York, Nov. 10, 1884. Received of William Wilson two hundred and fifty dollars for gray mare Jennie, seven years old, and warranted sound, kind, and true in all harness, and free from vices. (Signed), J. B. RECEIPT WITH QUALIFIED WARRANTY. New York, Nov. 10, 1884. Receiyed of John Williams one hundred and twenty-five dollars for bay mare, nine years old, and warranted sound in every way, except a quarter-crack in one foot. (Signed), A. B, 438 MANUAL OF THI liAW, ANOTHER, New York, Nov. 12, 1SS4. Received of John Jones seventy-five dollars for roan horse Dick, twelve years old. Said horse has recently recovered from an attack of Pink Eye, and I warrant him for one month against a return of the disease, and also warrant him kind and true in all harness. (Signed), J. B. Leases. See Chapter on Landlord and tenant, page 244. LEASE OF A FARM FOR A TERM OF YEARS. This indenture, made the .... day of ....,in the year of our Lord one thousand eight hundred and , between , of . . . . , County of and State of , of the one part, and . . . ., of the same place, of the other part, witnesseth: that the said , for and in consideration of the yearly rent and covenants hereinafter mentioned and reserved, on the part and behalf of the said . , . . , his heirs, executors, and administrators, to be paid, kept and performed, hath demised, set, and to farm let, and by these presents doth demise, set, set, and to farm let, unto the said , his heirs and assigns, all that certain messuage or tenement, tract, piece or parcel of land, situate in .... aforesaid, adjoining lands of (naming the owners of the adjoining tracts), and now in the tenure and occupancy of , (or, as the case is), containing acres, be the same more or less, (or, if preferred, describe the premises by metes and bounds as in a deed), together with all and singular the buildings, improvements, and other the premises hereby demised, with the appurtenances. To have and to hold the same unto the said , his heirs and assigns from the day of ensuing the date hereof, for and during the term of .... years, thence next ensuing, and fully to be completed and ended; the said yielding and paying for the same unto the said , his heirs and assigns, the yearly rent or sum of dollars, on the day of . . . ., in each and every year during the term aforesaid, the first payment of which said yearly rent or sum of is to be made on the first day of , A. D. 18. .. (If the rent is payable in produce, after the words "yielding and paying," proceed as follows: " thereout unto the said , his heirs and assigns, for the yearly rent as follows: one-half of all the winter grain, one-third of all the summer grain, raised and grow- ing upon the premises, etc.," following the agreement.) And, at the expiration of the said term, he, the said , his heirs and vVAGHING'i'ON AND JEFFERSON COLLEGE, WASHINGTON, Pi^i, UNIVERSITY OF VIRGINIA, FOUNDED BY THOMAS JEFFERSON, 1819. J'OKMS IN COMMON USE. 439 issigns, shall and will quietly and peaceably surrender and yield up the said demised premises, with the appurtenances, unto the iaid . . . ., his heirs and assigns, in as good order and repair as the same now are, reasonable wear, tear, and casualties which may happen by fire or otherwise only excepted. In witness whereof, the said parties have hereunto set their hands ann seals, the day and year aforesaid. Signed, sealed, and delivered ) | l. s. | in presence of J ^-^ :::::•::::::::::::::: 1^1 LEASE WITH CHATTEL MORTGAGE SECURITY. This indenture, made this day of , A. D. 1 8 . . . , between .... of .... of the first part, and of of the second part, witnesseth as follows, to wit: The party of the first part does hereby demise and let unto the party of the second part, the premises known and described as follows (insert description), together with all the buildings and appurtenances thereunto belong- ing, for and during the term of . . . years, commencing on the . . . day of . . . . , A. D. 1 8 . . . , and ending on the day of . . . . , A. D. i8. . . ; the party of the second part yielding and paying there- for the yearly rent of . . . ., dollars, as hereinafter specified. And the party of the second part does hereby covenant and agree to and with the party of the first part to pay the said rent in the manner and at the times following to wit: (State the times of payment as agreed upon. ) And further, to deliver up the said land, buildings, and appurtenances at the end of the said term, peaceably, and in as good condition as at present, reasonable wear and damage by the elements excepted. And further, that he will not sublet the said land, or any part thereof, nor assign the lease thereof, without the consent in writ- ing of the party of the first part. And it is mutually agreed by the parties hereto, that in case the party of the second part shall make default in any of the forego- ing covenants, then the party of the first part may re-enter the said land and take possession of the same with its buildings and appurtenances. And the party of the second part, in considera- tion of the premises and of one dollar to him in hand paid by the party of the first part, has granted, bargained, and sold, and by these presents does, grant, bargain, and sell unto the party of the first part, the following goods and chattels, to wit: (describe the chattels to be mortgaged,) which said goods and chattels are now in the possession of the party of the second part, at (state where). 440 Manual OS" fSB LA^.* Provided however. That if the party of the second part shall well aad truly perform and fulfil all and singular the covenants herein- V)efore contained on his part to pay moneys, either for rent, taxes, repairs, improvements, or for any other purpose or account what- soever, then this conveyance be void. But in case he shall fail to perform the said covenants, or any of them, then the said convey- ance shall be and remain in full force and virtue; and the party of the first part, his agents, attorneys, executors, administrators, and assigns, may, at any time after such default, and either before or after the determination of the foregoing lease, enter into any place where tlie said goods and chattels may be located, and seize the same, and sell and dispose of them, or any of them at public vendue, giving six days previous notice of such sale, by written or printed notices posted at three or more public places in the said township, and out of the proceeds pay and retain the charges of such seizure and sale, and all sums of money due andJowing by virtue of the said covenants, if so much there shall be, rendering the surplus, if any, to the 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. , 81 Gi In presence of . , j 'l?' ) :;::::::::::::::: Sl\ LEASE — SHORT. It is hereby agreed, between , party of the first part, and . . . ., party of the second part, as follows: The said party of the first part, in consideration of the rents and covenants herein specified, does hereby let or lease to the said party of the second part, the following described premises (describe them), for the term of . . . ., from and after the .... day of . . . ., i.S. ., on the terms and conditions hereinafter mentioned, to be occupied for (state pur- pose), and in no case to be used for any business deemed extra hazardous on account of fire. Provided, That in case any rent shall be due and unpaid, or il default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first party, his cer- tain attorney, heirs, representatives, and assigns, to re-enter into, FOEMS m COMMON USB. 44' repossess the said premises, and the said party of the second part, and each and every other occupant to remove and put out. And the said party of the second part does hereby hire the said premises for the term of as above mentioned, and does cove- nant and promise to pay to the said party of the first part, his representatives and assigns, the annual rent of ... . dollars, in .... installments, to wit: (state times of payment), and that he will not assign Hor transfer this lease, or sub-let said premises, or any part thereof, without the written assent of said party of the first part. And also, that he will at his own expense, during the continu- ance of this lease, keep the said premises and every part thereof in as good repair, and at the expiration of the term, yield and deliver up the same in like condition as when taken, reasonable use and wear thereof and damage by the elements excepted. And the said party of the first part does covenant that the said party of the second part, on paying the aforesaid installments and performing all the covenants aforesaid, shall and may peacefully and quietly have, hold, and enjoy the said demised premises for the term aforesaid. Witness our hands and seals this .... day of ., i8. , ESEAL.] SEAL.] AGREEMENT OF SURETY FOR RENT. In consideration of the letting of the premises in the foregoing instrument described, and for the sum of one dollar, to me paid, I do hereby become surety for the punctual payment of the rent and performance of the covenants in said instrument mentioned, to be paid and performed by the second parties therein named ; and if any default shall at any time be made therein I do hereby promise and agree to pay unto the party of the first part named in said instrument, the said rent and arrears thereof that may be due, and fully satisfy the condition of said instrument, and pay all damages that may occur by reason of the non-fulfillment thereof, without requiring notice or proof of the demand being made. Witness . . . hand . . . and seal . . . this . . . day of , i8. .. [Signature of surety and seal.] Letter of Credit. A letter of credit is a letter (usually unsealed) from a person, generally a banker, addressed to his cor- respondent in another country, requesting him to extend to the bearer credit for a certain sum of money, as the following ionn will illustrate: 44* MANUAL OJ" THE LAW. Detroit, Mich., Sept. 25, 1885. Messrs. Morton., Rose <& Co., London: Gentlemen — We take pleasure in introducing to you Mr. Israel T. Cowles, who purposes visiting England and France, and desires us to open a credit with you for him for one thousand pounds sterling. You will please honor his drafts to an amount not exceeding in the aggregate the above named sum, and charge the same to us, with advice. The signature of Mr. Cowles accompanies this. Very respectfully your obedient servants, Signature of Case & Carpenter. Israel T. Cowles. Marriage. Marriage in the United States is a ciril contract, which may be entered into by a simple declaration of the contract- ing parties, made in the presence of one or more witnesses, that they, the said parties, do respectfully contract to be man and wife. No particular form of ceremony is requisite, nor is it imperative that it should be performed by a particular person; yet, from long usage, and from a consciousness of the vast importance of the con- tract to the parties thereto, the ceremony is, almost universally, performed by, or in the presence of, a clergyman or magistrate. As to the proper parties to enter into this contract, it is requisite: 1st, that they be willing to contract ; 2d, that they be of sound mind, and have arrived at the age which the law considers as enti- tling them to join in such contract ; 3d, that neither of the parties is married already to another, who is living, and from whom such party has not obtained a divorce from the bonds of matrimony ; and 4th, that the parties are not related by consanguinity or affinity within the degrees prohibited by the laws of the State in which the marriage is consummated. CERTIFICATE OP MARRIAGE BY A MAGISTRATE. This is to certify that on the day of , in the year of our Lord one thousand eight hundred and . . ., before me, the sub- scriber, one of the Justices of the Peace within and for the county of . . . . , . . . . , of the town of . . . . , in said county, merchant, and , of the same place, were joined in marriage; each taking the other for husband and wife, according to law. In witness whereof, I have hereunto set my hand and seal, at . . "foresaid, the day and year above written. , [seal.] yustict of the Peace. FORMS IN COMMON USE. 443 BY A CLERGYMAN. This is to certify, that on the day of , in the year of our Lord one thousand eight hundred and , . , , , of , County of . . . . , and State of , and , of the same place, were by me united in the bonds of marriage, at aforesaid, according to the ordinance of God and the laws of the State of Given at aforesaid, the day of , A. D. i8. .. > Minister of the Gospel, Mortgages. See chapter on mortgages, pages 54-66. SHORT FORM OF MORTGAGE. This indenture, made the .... day of in the year one thousand eight hundred and ., between A. B., of . . . ., in the County of . and State of . , of the first part, and C. D., of , in said County, of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of .... dollars, grants, bargains, sells, and confirms unto the said party of the second part, and to his heirs and assigns, all (here insert description), together with all and singular the heredita- ments and appurtenances thereunto belonging or in anywise appertaining. This conveyance is intended as a mortgage, to secure the payment of the sum of dollars, in (here state terms of payment), according to the condition of a certain bond, dated this day, and executed by the said party of the first part to the said party of the second part; and these presents shall be void if such payment be made. But in case default shall be made in the pay- ment of the principal or interest, as above provided, then the paity of the second part, his executors, administrators, and assigns are hereby empowered to sell the premises above described, with all and every of the appurtenances, or any part thereof, in the manner prescribed by law, and out of the money arising from such sale, to retain the said principal and interest, together with the costs and charges of making such sale; and the overplus, if any there be, shall be paid by the party making such sale, on demand, to tlie party of the first part, his heirs or assigns. In witness whereof, the said party (or parties) of the first part has (^or have) hereunto set his hand and seal (or their hands and seals), the day and year first above written. [Signature and seal, J Signed, sealed, and delivered in the presence of [Signature of witness.] 444 MANUAL OF THE LAW. LONG FORM OF MORTGAGE. This indenture, made this day of in the year of our Lord one thousand eight hundred and eighty- , between A. B., of . . . . , party of the first part, and C. D., of . . . . , party of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of .... dollars, to in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, ha... granted, bargained, sold, remised, released, enfeoffed, and confirmed, and by these presents do . grant, bargain, sell, remise, release, enfeoff, and confirm unto the said party of the second part, and to heirs and assigns forever, all .... certain piece or parcel of land, situate and being in the of , in the county of .... and State' of known and described as (insert description of premises), together with the hereditaments and appurtenances thereunto belonging or in anywise appertaining; to have and to hold the above bargained premises unto the said party of the second part, and to his heirs and assigns, to the sole and only proper use, benefit and behoof of the said party of the second part, his heirs and assigns forever: Provided^ always, and these presents are upon the express con- dition, that if the said party of the first shall and do well and truly pay or cause to be paid to tlie said party of the second part, the sum of (state the amount and times of payment of principal and interest), according to a certain promissory note (or bond) bearing even date herewith, executed by ... to the said party of the second part, as collateral security, then these presents and said note (or bond) shall cease, and shall be null and void. But in case of non- payment of the said sum of . . . ., or of the interest thereof, or any part of said principal or interest, at the time, in the manner, and at the place above limited and specified for the payment thereof, then, and in such case, it shall and may be lawful for the said party of the second part, his heirs, executors, administrators, or assigns, and the said party of the first part does hereby empower and authorize the said party of the second part, his heirs, executors, administrators, or assigns, to grant, bargain, sell, release, and con- voy the said premises, with the appurtenances 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 deed or deeds of conveyance in law, pursuant to the statute in such case made and provided, rendering the sur- phis moneys (if any there should be), to the said party of the first part, his heirs, executors, or administrators, after deducting the amount then due, the costs and charges of such vendue and sale aforesaid, and also .... dollars as an attorney fee, should any' pro- ceeding be taken to foreclose this indenture by such sale and con- vey n nee. FOEMS IN COMMON USE. 445 In witness whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written. l^i --. l^i livered ) _;^ of \ |l. s. t Sealed and delivered in presence ASSIGNMENT OF MORTGAGB. Know all Men by these Presents, That A. B., party of the first part, for and in consideration of the sum of dollars, , lawful money of the United States of America to him in hand paid by C. !>., party of the second part, at or before the ensealing or delivery of these presents, the receipt whereof is hereby acknowledp;ed, has granted, bargained, sold, assigned, trans- ferred, and set over, and by these presents, does grant, bargain, sell, assign, transfer, und set over unto the said party of the second part, a cei"tain indenture of mortgage, bearing date the day of . . . ., one thonsanil eight hundred and . . ., made by (state who and to whom made), and recorded in the Register's office of the county of , State of in liber of mortgages, at page ....,with all and singular the premises therein mentioned and described, together with the note or obligation therein also mentioned, and the moneys now due, and the interest that may hereafter grow due thereon ; to have and to hold the same unto the said par<^y of the second part, his heirs and assigns, forever, subject only to the proviso in the said indenture of mortgage mentioned. And I do hereby authorize and appoint the said party of the sec- ond part, my true and lawful attorney, irrevocable in my name, or otherwise, but at his proper costs and charges, to have, use, and take all lawful ways and means for the recovery of the sum or suns of money now due and owing, or hereafter to become due anr* owing, upon the said note and mortgage; and in case of pay- roz-nt to give acquittance or other sufficient discharge, as fully as I might or could do if these presents were not made ; and I do hereby for myself, my heirs, executors, and administrators, covenant, prom- ise, and agree, to and with the said party of the second part, that there is now due upon the said note and mortgage the sum of (state what), and that I have good, right, and lawful authority to gr?nt, bargain, and sell the same in the manner aforesaid. Wealed and delivered, the day of , i88 . . . In preseqcc ol , , , [l. s.] 446 MANUAL OF THE LAW. DISCHARGE OF MORTGAGE. Know all Men by these Presents, That I, A. B., of .... do hereby certify that a certain indenture of mortgage, bearing date the day of . . , one thousand eight hundred and . . ., made and executed by C. D., party of the first part, to myself, as party of the second part, and recorded in the Register's ofBce for the county of , in liber of mortgages, on page .... on the . day of , one thousand eight hundred and . . . , i» fully paid, satisfied, and discharged. In witness whereof I have hereunto set my hand and seal., the . . day of , one thousand eight hundred and Signed, sealed, and delivered ' in presence of } ::::::::: [tt] CHATTEL MORTGAGE. Know all Men by these Presents, That A. B., of ...., party of the first part, being justly indebted unto C. D., of ...., party of the second part, in the sum of dollars, has, for the purpose of securing payment of the said debt and the interest thereof, granted, bargained, and sold, and by these presents does grant, bargain, and sell unto the said party of the second part the following goods and chattels, to wit: (describe them.) To have and to hold the same unto the said party of the second part, his executors, administrators, and assigns forever; which said goods and chattels, at the date hereof, are situate at . . . . , and are hereby warranted to be free and clear from all liens, conveyances, incum- brances, and levies. Provided always, and the condition of these, presents is such, that if the said party of the first part shall pay or cause to be paid to the said party of the second part the debt afore- said, with interest, at the time, and in the manner (state method and times of payment of principal and interest), then this instru- ment shall be void and of no effect, otherwise to be and remain in full force and virtue. And the said party of the first part hereby agrees to pay the same at the time and in the manner aforesaid. And if default be made in such payment, either in whole or in part, the said party of the second part is hereby authorized to take possession of and sell at public auction, after due and legal notice, the goods and chattels hereinbefore mentioned, or so much thereof as may be necessary to satisfy and pay the whole of the said debt, interest, and reasonable expenses, and to retain the same out of the proceeds of such sale; the overplus, or residue, if any, to belong and to be returned to the said party of the first part. And the said party of the second part is hereby authorized at any time when he (h%ll deem himself insecure, to take possession of the said good* FOBMS IN COMMON USE. 447 and chattels, and the same retain in some convenient place, at the risk and expense of the said party of the first part, until the said debt is fully paid, or the said goods and chattels are sold at auction in the manner hereinbefore specified. In witness whereof, the said party of the first part has hereiinto set his hand and seal the day of in the year of our Lord one thousand eight hundred and Signed, sealed, and delivered ) , [l. s.J in the presence of J [l, s.J » Partnership. ARTICLES OF COPARTNERSHIP. Articles of agreement, made the day of , one thou- sand eight hundred and . . . ., between A. B., of . . . ., and C. D., of . . . . , witnesseth, as follows : 1. The said parties above named have agreed to become copart- ners in business, and by these presents do agree to be copartners together under and by the name or firm of B. & D., in the busi- ness of (here designate it briefly, but accurately), in the buying and selling all sorts of goods, wares, and merchandise to the said business belonging. The partnership to commence on the day of . . . ., and to continue .... years. 2. To that end and purpose the said A. B. has contributed th» sum of .... dollars in cash, and the said C. D. has contributed tha lease of the store in .... to be occupied by them, and the stock of goods and good will of the business there heretofore carried on by him, which are together estimated and valued by the parties at the like sum of .... dollars, the capital stock so formed to be used and employed in common between them, for the support and manage- ment of the said business, to their mutual benefit and advantage. 3. At all times during the continuance of their copartnership, they and each of them will give their attendance, and do their and each of their best endeavors, and to the utmost of their skill and power exert themselves for their joint interest, profit, benefit, and advantage, and truly employ buy, sell, and merchandise with their joint stock, and the increase thereof, in the business aforesaid. And also, that they shall and will at all times during the said co- partnership, 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, profits, and increase that shall come, grow, or arise from or by means o£ their said business, shall be divided between them equally; and all losses that shall happen to their said joint business by ill commodities, bad debts, or otherwise shall be borne and paid between them equally. 4. And it is agreed by and between the said parties that there hi MANUAL OF THE LAW. shall be kept at all times during the continuance of their copart- nership, 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 business, as also all goods, wares, commodities, and merchandise by them or either of them bought or sold, by reason or on account of the said business, and all other matters and things whatsoever, to the said business and the management thereof in anywise belonging; which said books shall be lised 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 (designating the times), or oftener, if necessary, shall make, yield, and render, each to the other, a true, just, and perfect account of all profits and increase by them or either or 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 when the account is so made shall clear, adjust, pay, and deliver, each to the other, at the time, their just share of the profits, and pay and bear their just share of the expenses and losses so made as aforesaid. 5. And the said parties hereby mutually covenant and agree, to and with each other, that during the continuance of the said co- partnership neither of them shall 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 copartnership, the said copart- ners, each to the other, shall 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, the parties thereto have hereunto inter- changeably set their hands and seals the day and year first above written. A. B. [seal.] C. D, [SEAL.] Signed, sealed and delivered in presence of j [Signature of witness.] ADVERTISEMENT OF DISSOLUTION. Noticfe is hereby given, that the partnership lately subsisting between A. B. and C. D. of under the firm of ^. and D., expired on the .... day of , (or, was dissolved on the day of .... by mutual consent, or, pursuant to the terms of the FORMS IN COMMON USB. 449 articles.) All debts o-wing to the said partnership are to be received by said A. B., and all demands on the said partnership are to be presented to him for payment (or, A. B. is authorized to settle all debts due to and by the firm). [Date.] [Signatures of partners.] ADVERTISEMENT OF A PARTNER S RETIRING. Notice is hereby given, that the partnership between A. B., C. D., and E. F., was dissolved on the day of so far as relates to the said E. F. All debts due to the said partnership, and those due by them, will be settled with and by the remaining part- ners (who will continue the business under the firm of B. & D). [Date.] [Signatures of the partners.] Petitions. PETITION TO THE CONGRESS OF THE UNITED STATES. To the Honorable the Senate and House of Representatives of the United States in Congress assembled. The petition of the subscribers, citizens of , in the State of , respectfully showeth: (stating the subject of the peti- tion). And your petitioners will ever pray, etc. TO THE LEGISLATURE OF A STATE. To the Honorable the Senate and House of Representatives of the Commonwealth of (or. State of) , in General Assem- bly met (or in General Court assembled; or, in Legislature con- vened). The petition of the subscribers, citizens of , in the County of , respectfully showeth: (stating the subject of the peti- tion). And your petitioners will ever pray, etc. TO THE EXECUTIVE OF A STATE. To his Excellency , Governor of the State of (or Com- monwealth of) The petition of, etc., (as in foregoing). Power of Attorney. A power of attorney is a written instru- 450 MAKTJAIi OF THE LATf. ment by which one person is empowered to act for another. A person acting under a power of attorney is called an attorney in fact. The power of attorney to authorize a person to execute a sealed instrument for his principal, should be under seal, executed, attested, and acknowledged the same as a deed. These powers are general and special, and empower the holders thereof to act the same as general or special agents, and are subject to the same laws of revocation as are the powers of agents. A SHORT FORM OF POWER OF ATTORNEY. Know all men that I, John Smith, of the town of , in the County of , State of , do hereby make, constitute, and appoint James Brown, of the town of ,, coiinty of . . . ., State of . . . . , my true and lawful attorney for me and in my name to -j- [here insert what the attorney is authorized to do] and to do and perform all acts or things in the execution of the aforesaid busi- ness, as fully and completely as I might do were I present. In witness whereof, I have hereunto set my hand and seal this .... day of .. . ., iS. .. [Signed by person granting the power.] Signed, sealed, and delivered in the presence of [Signatures of witnesses.] POWER TO COLLECT RENTS. (Use preceding form, and place the following after f ) to ask, demand, destrain for, collect, and receive all such rents and arrears of rent as are now due, or may fall due, or owing to me at any time hereafter, from . . . ., of . . . ., or such tenants or persons as may be occupying any lands, tenements, or hereditaments as may belong to or be claimed by me, lying in the town of . . . ., County of , State of , or which may be due from, or payable by, any person or persons as tenements, occupiers, lessees, or assignees of any term or terms of such lands, or any part of such lands, tenements, or hereditaments, and upon such payment to give a proper receipt and discharge thereof (then continue with what fol- lows the bracket in first form). POWER TO COLLECT DEBTS. ( Use first form, inserting the following at f) to ask, demand, sue for, collect, receive, and give receipts for all moneys, debts, and demands of any kind which now are due, or shall become due, owing and belonging to, or kept from me by (names of persons fiom whom the debt is due) or any person or persons residing (continue with what follows the bracket in first form). FORMS IN COMMON USS. 45' POWER TO SELL AND CONVEY LANDS. (Use first form, and insert the following at f) to grant, bargain, and sell all or any such part of it, for such sum or price, and on whatever terms that shall seem to him just and proper, and for me and in my name to make, execute, and acknowledge and deliver good and sufficient deeds for the same, either with or without cov- enants and warranty (continue as in first form after the bracket). POWER TO MORTGAGE LAND. (Use first form, and insert after -j- the following) to borrow money upon the security of my land in to an amount not greater than ....... and to sign, seal, and deliver a bond or bonds for the payment of such sums (insert the terms upon which the payment is to be made, if there is to be a limitation), and to sign, seal, and deliver as security a mortgage or mortgages upon my said real estate, with the usual power of sale, and insurance and inter- est clauses, and such other covenants and provisions as are custom- ary (continue as in first form after the bracket). REVOCATION OF POWER OF ATTORNEY. Know all men that whereas, I, John Smith, in and by my letter of attorney made the day of . . . ., i8. ., did make, constitute, and appoint James Brown, to be my true and lawful attorney for me and in my name, to (copy the letter of attorney) as by said letter may more fully appear. Know all that I, the said John Smith, have revoked, recalled, annulled, and made void, and do revoke, recall, annul, and make void the said letter of attorney mentioned above, and all powers or authorities therein granted, or intended -to be granted, to the said James Brown. In witness whereof, etc. (as in first form). Beceipts. RECEIPT FOR MONEY. Received from A. B. the sum of .... dollars. [Date.] C. D. RECEIPT FOR CHATTELS. Received from Y. Z. one cart, one wagon, one plow, one har- row, one black horse five years old, known as Jack, and a yoke of oxen, heretofore kept by said Y. Z. on his farm in [Date.] A. B. 452 MANUAL Of THE LAW. RECEIPT FOR PAPERS. I hereby acknowledgfe that I have recdved from Y, Z. the sev- eral notes (or deeds, or contracts), and other papers, which are enumerated and described in the schedule annexed. [Date.] A. B, (Annex list, identiiying papers by dates, parties' names, etc). RECEIPT FOR CASH PAYMENT, IN FULL OF ALL DEMANDS. Received from A. B. the sum of dollars, in full of all demands against him. C. D. [Date.] RECEIPT FOR MONEY PAID BY A THIRD PERSON. $ Received from A. B., by the hand of E. F., the sum of .... dollars. C. D. [Date.] RECEIPT FOR MONEY ON BEHALF OF A THIRD PERSON. $.... Received from A. B. the sum of .... dollars. C. D. per E. F. A RECEIPT TO BE ENDORSED ON A WRITTEN INSTRUMENT. $ Received from A. B. the sum of dollars, being (a part of) the amount due upon the written bond (or contract, or policy of insurance, etc.). C. D. RECEIPT ON ACCOUNT GENERALLY. $ Received from A. B. the sum of dollars, on account. C. D. [Date.] RECEIPT FOR A QUARTER'S RENT. $ Received of A. B. the sum of .... dollars, being one quarter's rent, due this day, for my dwelling-house and estate. No street, now occupied by said A. B. C. D. [Date.] fOEMS IK COMMON DsS. 453 RECEIPT FOR PAYMENT FOR PROFESSIONAL SERVICES. $ Received from A. B. the sum of .... dollars, for pro- fessional services rendered by me in (state the nature of the ser- vices). [Date.] C. D. RECEIPT FOR MONEY TO BE PAID OVER. $ Received from A. B. the sum of . . . dollars, to be paid to the bank of .... on their surrendering a note which they hold, made by said A. B., dated the .... day of , i8. ., for dollars payable .... days after date. C D. RECEIPT FOR MONEY TO BE DISBURSED. $ Received from A. B. the sum of dollars, to be expended in necessary traveling expenses and disbursements in going to .... for him to obtain letters patent (or othervrise state the nature of the disbursements intended). C. D. [Date.] RECEIPT FOR MONEY TO BE REPAID. $ Received from A. B., of . . . . , the sum of .... dollars, which I promise to repay to him on demand (or, in .... days, or, months; or, on the .... day of . . . ., i8. . ). CD. [Date.] RECEIPT IN FULL OF A PARTICULAR DEMAND. $ Received from A, B. the sum of .... dollars, in full of all demands for (state nature of claim) up to date (or, to the .... day of ...., i8. .). C. D. [Date.] RECEIPT FOR STOCK PUT OUT TO WINTER. Received from A. B. .... head of horned cattle, viz.: . . . cows and .... young oxen, together with .... horses and . . . . swine, which I promise to keep through the winter 'and feed with good hay, etc., and return in good condition on the first day of next, casualties excepted, he paying me dollars each, for the cattle and horses, and . . , . dollars each for the swine. C. D. Witness my hand. 454 MANtJAL Of TflE LAW. Releases. GENERAL RELEASE OF ALL DEMANDS. Know all men by these presents, that I, A. B., of the city ol , for and in consideration of the sum of one dollar to me in hand paid by C. D., of . . . . , do hereby release and forever discharges the said C. D., his heirs, executors, and administrators, of and from all actions, causes of action, suits, controversies, claims, and demands whatsoever, for or by reason of any matter, cause, or thing, from the beginning of the world down to the .... day of • • . ., lo. .. In witness whereof, I have hereunto set my hand and seal this .... day of . . . ., one thousand eight hundred and In presence of [Signature and seal.] [Witness' signature.] MUTUAL GENERAL RELEASE. This indenture, made this day of , 18.., between A. B., of . . . . , of the one part, and C. D., of , of the other part, witnesses, that the said A. B. and C. D. have this day can- celled and delivered up to the other certain covenants, bonds, notes, and written contracts, upon which he claimed to have demands on the other; the said claims and instruments so cancelled and deliv- ered up being supposed and intended to be all the claims and evi- dence of claims by either of the parties hereto on the other. And in consideration thereof, each of them, the said A. B. and C. D., does hereby, for himself and his legal representatives, release, and absolutely and forever discharge the other of and from all claims and demands, actions, causes of action, of every name and nature, so that neither of them shall have any claim on the other, directly or indirectly, on any contract, or supposed liability, or thing under- taken, done, or omitted to be done, from the beginning of the word to this day. In testimony whereof, the said parties have hereto interchange- ably set their hands and seals the day and year first above written. In presence of [Signatures and seals.] [Signature of witness.] SPECIAL RELEASE. Know all men by these presents, that I,* A. B., of the ... ., city of . . . ., for and in consideration of the sum of one dollar to me in hand paid by C. Dt, of , do hereby release and forever dis- charge the said C. D., his heirs, executors, and administrators, of and from all actions, caus.es of action, suits, controversies, claims, and all demands whatsoever by reason (here state the nature of the matter released). Witness my hand. A. B. foBMs m coMMoi< Lisk 455 m — — Societies, etc. The following forms may be of service in the organization of various kinds of associations, as agricultural societies, debating societies, etc CONSTITUTION FOR A STATE AGRICULTURAL SOCIETY. Article i. The name of this association shall be " The Mich- igan State Agricultural Society," and its object shall be to promote the improvement of agriculture and its kindred arts, throughout the State of Michigan. Art. 2. The officers of this society shall be a President, one Vice President in each organized county in the State, a Recording Secretary and a Treasurer, and the Corresponding Secretary of esch organized County Agricultural Society shall be the Corres- ponding Secretary of this Society for their county; and any county not having an organized County Agricultural Society shall not be entitled to a Corresponding Secretary of the State Society; and an Executive Committee, consisting of the President, Treas- urer, and Recording Secretary, and twenty other members to be chosen for that purpose, and also the ex-Presidents of the society. These officers shall be elected by a majority of the votes at the annual meeting of the society, and shall, except the twenty mem- bers of the Executive Committee, hold their office for one year, and until the annual meeting of the Executive Committee. There shall be thirteen members of the Executive Committee elected at the meeting of the society in 1871, ten of which members shall be chosen to serve two years from January, 1872, and three members for one year from the same date; and at the next annual meeting of the society, and annually thereafter, ten members of the Execu- tive Committee shall be elected to hold for two years, and until the annual meeting of the Executive Committee: Provided, That the officers named upon the organization of the society shall be deemed members, and shall remain officers only until others shall be duly elected at the first annual meeting; and if a vacancy happen, it may be filled by appointment of the Executive Com- mittee. Art, 3. The duties of the President, Vice President, Record- ing and Corresponding Secretaries shall be such as usually pertain to their respective offices, and such also as may be prescribed by the order of the Executive Committee, as hereafter provided. Art. 4. The Treasurer shall receive and keep an accurate account of all moneys belonging to the society; he shall pay out its money only on the order of the Executive Committee, and at each annual meeting of the society he shall make a full report of its financial transactions and conditions. Art. 5. The Executive Committee shall determine the place for holding each annual meeting and fair of the society, and it shall call that meeting and fair at such times as it ghall judge best, 45^ MANtJAL Of TSa LAW. between the first Monday in September and the third Monday in October, giving at least sixty days' public notice thereof. Art. 6. The Executive Committee shall direct the money appropriations of the society, and have the control of its property; it shall make the necessary preparations for the annual fair, and issue all proper public notices and circulars in relation thereto, or to the general object of the society ; it shall prepare the necessary by-laws of the society, and may prescribe such duties to the other officers of the society as are not inconsistent with the usual business of their respective offices. It shall itself obey the instructions which may be given to it at the annual meeting of the society, and at the expiration of its term of service shall make a full report of its pro- ceedings. It shall be competent for the Executive Committee, or a majority of them, to appoint a Chairman and Secretary, who may transact such business as they may be authorized to do by said committee; and said Secretary shall sign, and said Chairman shall countersign, all orders on the Treasurer for the payment of any money directed by said committee to be paid for any purpose, and said Secretary shall keep an accurate account of all orders so drawn. Art. 7. It shall be the duty of the Executive Committee annually to regulate and award premiums on such articles, produc- tions, and improvements as they may deem best calculated to pro- mote the agricultural and household manufacturing interests of the State, having special reference to the most economical or profitable mode of competition in raising the crops or stock, or in the fabri- cation of the articles offered : Provided, always. That before any premium shall be delivered, the person claiming the same, or to whom the same shall be awarded, shall deliver to the Recording Secretary of the society, in writing, an accurate statement and description, verified in such manner as the Executive Committee may direct, of the character of the soil, and the process in prepar- ing it, including the quantity and quality of the manure applied in raising the crop, or the kind and quality of food in feeding the animal, as the case may be; also the kind and cost of labor employed, and the total expenses and total productions of the crop, or the increase of value of the animal, with a view of show- ing accurately the exact resulting profit. Art. 8. The Executive Committee shall meet annually, at such place as it may itself choose, on or before the second Monday in January, and shall then immediately prepare a report and abstract of the transactions of the society during the preceding year, embracing such valuable reports from committees, statements of experiments, cultivation and improvement, proceedings of county societies, correspondence, statistics, and other matters, the publica- tion of which will exhibit the condition of the agricultural inter- ests of Michigan, and a diffused knowledge of which will, in the judgment of the committee, add to the productiveness of agricult- ural and household labor, and therefore promote the general pro*- FORMS m COMMON USS. 457 perity of the State; and, as soon as practicable, the committee shall transmit such report and abstract to the President of the Senate for the use of the Legislature. Art. 9. No officer of this society, except the Recording Sec- retary, shall receive any compensation for his services. The Exec- utive Committee shall allow said secretary such sum for past and future services as they may deem advisable. Art. 10. Any person may become a member of the Michigan State Agricultural Society, for one year, by paying one dollar into its treasury. Any officer of the society may receive and forward to the treasurer the fee requisite to a membership. By paying ten dollars into the treasury of the society, any person may become a life member, and shall be entitled to a certificate of such member- ship, signed by the president and recording secretary. Art. II. The several County Agricultural Societies that now exist, or may hereafter exist in this State, shall be deemed auxilia- ries of the State Society, and it shall be the duty of the Executive Committee to invite and receive reports and abstracts of the County Societies, to be used in preparing the annual report to the Legisla- ture, which is provided for by article eight of this constitution. Art. 12. The president and recording secretary of each County Agricultural Society, and all life members of this society, may attend the annual meeting of the Executive Committee, and freely participate in all discussions which shall occur at said meeting. Art. 1 3. This constitution shall be altered only by a vote of two-thirds of the members present at an annual meeting of the society. ARTICLES OF ASSOCIATION FOR A COUNTY AGRICULTURAL SOCIETY. 1. This society shall be called the County Agricultural Society. . 2. The particular business and object of the society shall be the encouragement and advancement of agriculture, manufactures, and the mechanic arts in County. a. Any person, a resident of County, may become a member by paying to the Treasurer one dollar, and subscribing to the articles of the association. And he shall annually thereafter, on or before the first day of the annual fair, pay one dollar into the treasury so long as he shall continue a member. A The officers shall consist of a President, Secretary, Treas- urer and nine Directors, who shall be elected by ballot at the annual meeting, to be held on the third day of each annual fair. Their term of office shall commence on the first day of January then next ensuing, and they shall hold the same for one year there- after and until their suacessors are elected and accepted. 45^ MAHtAL 6t fS£ LAlf. -- — "" 5. The said President, Secretary, Treasurer, and Directors, a majority of whom shall constitute a quorum, shall constitute a board for the management of the concerns of the society, as pro- vided by law. 6. The President, or in his absence such one of the Directors as the members present may select, shall preside at all meetings. 7. The Secretary shall keep a record of the members of the society and of its proceedings, and shall perform the duties usually pertaining to such office, and such duties as the board may from time to time prescribe. 8. The Treasurer shall receive and take charge of all moneys of the society, and shall pay out the same only by direction of the board, or the order of the President, countersigned by the Secre- tary. He shall keep a correct account of the receipts and expend- itures and render an account thereof to the board when requested. And he shall give a bond with sureties in such sum as the board may require, conditioned for the faithful performance of his duties. 9. It shall be the duty of the board to adopt and publish such rules, regulations, and by-laws as may be considered necessary to regulate and carry out the object and business for which the society was formed. 10. These articles of association may be amended at any annual meeting by a two-thirds vote of the members present and voting thereon. CONSTITUTION FOR A DEBATING SOCIETY. AETICLE L NAME AND OBJECT. Sbc. I. The name of this society shall be the "Rouge Glen Literary Society." Sec. 2. The object of this society shall be the study of litera- ture, composition, and criticism, and practice in the art of debate. ABTICLE n. MEUBEBSHIP. Sec. 1. Any citizen of Rouge Glen may become a member of this society by paying to the treasurer an initiation fee of fifty cents and signing his name to the roll of members. AETIOLE IIL OFFIOEBS. Shc. I. The officers of this society shall be a President, Vice President, Secretary, and Treasxirer. They shall be elected by vote of the members, and shall hold office for one year, or until their successors are duly elected. FOKMS IN COMMON USB. 459 Skc. 2. It shall be the duty of the President to preside at all meetings, maintain order, decide tie votes, and have general care and supervision over the interests and affairs of the society. Sec. 3. It shall be the duty of the Vice President to assume and perform the duties of the President in the absence of that officer. Sec. 4. It shall be the duty of the Secretary to make and keep careful minutes of all meetings, to have the caie and custody of the property of the society, to keep true accounts of all business trans- actions of the club, and to attene to all correspondence. Sec. 5. It shall be the duty of the Treasurer to collect and take care of all moneys of the society or due the society, and pay the same out on the order of the Secretary endorsed by the President. ARTICLE IV. Sec. I. The meetings of this society shall occur once in two weeks, at such place and time as may be decided upon by the members. ABTICLE V. The members of this society shall have power to adopt such by- laws for the regulation of their affairs as they deem expedient. AETICLE VI. This constitution may be amended by a two-thirds vote of all the members. Notice of proposed amendments shall be given in writ- ing to the Secretary, and read by him to the members at the meet- ing next preceding the one at which the vote on such amendments is taken. SET OF BY-LAWS FOR A DEBATING SOCIETY. 1. The meetings of this society shall be held in the .... school house once in two weeks on each alternate Tuesday evening at 8 o'clock P. M. 2. The following shall be the order of exercises observed at the meetings, unless otherwise ordered by the society : 1. Call to order by the President. 2. Reading of minutes of previous meeting by the Secretary. 3. Communications from the President. 4. Reports of Committees. 5. Debate upon the question of the evening. 6. Statement of the question for next discussion. 7. Adjournment a. There shall be a standing committee of three members appointed by the President, whose duty it shall be to select ques- tions for discussion, and to name the chief disputant upon each «idc ol the c^uestioa. 4^ MANUAL OF THE LAW. 4. After the question for discussion has been stated, and the names of the chief disputants have been announced, the chief dis- putants shall each select in turn six assistants from among the members. 5. Debate shall be limited to five minutes speeches, excepting those of the chief disputants, who may have ten minutes for their opening- speeches. 6. All of the members present at any meeting, who are not selected as debaters, shall act as judges of the debate, and shall decide the question by a majority vote. 7. Cushing's Manual of Parliamentary Procedure shall be the standard of authority upon all questions of procedure. Note. — By-laws, such as the foregoing, may be continued to any extent deemed necessary. The above will sufficiently illustrate their general form. Wills. See Chapter on Wills, pages 264-271. WILL OF BOTH REAL AND PERSONAL ESTATX. I, A. B., of . . . ., in the County of — . and State of . . . ., being of sound and disposing mind and memory, do make, publish, and declare this to be my last will and testament, hereby revoking all former wills by me at any time heretofore made. My will is, that all my just debts and funeral expenses shall, by my executors hereinafter named, be paid out of my estate, as soon after my decease as shall by them be found, convenient. I give, devise, and bequeath to my beloved wife, C. B., all my household furniture, my horses and carriages and the harness: and also . . . dollars in money, to be paid to her by my executors, hereinafter named, within months after my decease; to have and to hold the same to her and her executors, administrators, and assietns forever. I also give to her the use and income of my dwelling house, land, and its appurtenances, situated in .... afore- said (describing the same), and my land situated in (describing the same), to have and to hold the same to her for and during the term of her natural life. I give and bequeath to my honored mother, E. B., .... dollars in money, to be paid to her by my executors hereinafter appointed, within months after my decease; to be for the sole use of herself, her executors, administrators, and assigns. I give and bequeath to my daughter, L. B„ my shares of the stock of the Bank, in , County of .... and State of , which are of the par value of .... dollars; to have and to hold the same, together with all the profits and income thereof, to her, the said L. B., her heirs, executors, administrators, and assigns, to her and their use and benefit forever. FOKMS IN COMMON USE. 461 I give, devise, an'd bequeath to my son, H. B., the reversion or remainder of my dwelling or mansion house and its appurtenances, situate in aforesaid (describing it), and dll profits, income, and advantage that may result therefrom, from and after the decease of my beloved wife, C. B. ; to have and to hold the same to him, the said H. B., his heirs and assigns, from and after the decease of my said wife, to his and their use and behoof forever. I give, devise, and bequeath to my son, J. B., the reversion or remainder of my land situated in (describing it), and its appurte- nances, and all the profits, income, and advantage that may result therefrom, from and after the decease of my beloved wife, C. B., to have and to hold the same to the said J. B., his heirs and assigns, from and after the decease of my said wife, to his and their use and behoof forever. All the rest and residue of my estate, real, personal, and mixed, of which I shall die seized and possessed, or to which I shall be entitled at my decease, I give, devise, and bequeath, to be equally divided between and among my said sons, H. B. and J. B. And, lastly, I do nominate and appoint my said sons, H. B. and J. B., to be the executors of this my last will and testament. In witness whereof, I, the said A. B., have to this, my last will and testament, consisting of sheets of paper, subscribed my name and affixed my seal this .... day of . , . . , in the year of ,our Lord one thousand eight hundred and Signed, sealed, published, and de-" clared by the said A. B., as and for his last will and testament, in the presence of us, who, at his request and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto. , A. B. [SEAL.J [Signatures of witnesses.] residing at residing at residing at County. County. County. T"^ [■I - ' . - ' - 11 L? r- L DRAKE UNIVERSITY, DES MOINES, IOWA. GENERAL INDEX. A. Abatement of nuisances, general remarki........ , 179 when proper .. .. 129 Abstract of title, does not identify parties ..... 47 utility of . .... . . ..... 47 Abuse of hired animals . . . __. ._. 242 Acceptance and receipt, what constitutes... . ..... .... 213 Accretion, title obtained by .. ..... ... .. 19 Acknowledgment of deeds ...... 43 by wife 43, 283 how taken, etc ...... . 282 Acquiescence in boundaries ..... 85 Acquirement of real estate, chapter on . .. 17 Acquirement of mill privileges . .... 108 Adjacent owners, rights of in streets . iji Administration of estates 261 is it necessary .... . ... . .... 262 Administering an oath, form of ... . 282 Administrators, duties of . ... .... ..... . 272 Advancements, defined 259 must be made known 259 Affidavits, remarks on form of. ........... 281 jurat to . . . . 282 taking of by notaries 281 Agents, cannot act for pre-emptors or homesteaders 28 "Agistor," person having custody of animals . ... 238 duties of . 238 is not an insurer 238 cannot use animals pastured.............. . 240 has ho lien at common law.... 239' Agresment to buy land not binding unless written 34 to sell as distinguished from a sale . ..... 211 Agricultural machinery, what is a fixture 74 Air, law concerning — 91 Alterations that may be made by tenant — 24% Animals, borrowed, law as to 243 duties of hirer of .... 24} 82 4^ GENERAL INDE?. Animals, farm, laws concerning , - 232 hired, abuse of . . 242 hired, rights of owner . .... 241 hiring of, chapter on ......... 241 law as to impounding ... ......................... '^S liability for acts of . 15' pastured, cannot be used . 240 pastured, trespasses by ........ . ..... 240 pasturing, law concerning 238 trespassing, may be turned into highway ... 166 vicious, injuries by '. .. 157 vicious, may sometimes be killed ...... . .. 168 wild, must be kept with great care 159 Appeals in deliberative bodies 300 Appraisers of estates of deceased persons . 275 Apprentices, law as to 188 Appurtenances, what are they ... ................. ... 77 Arbitration and award ............................. ... .... 253 bond for..^ 254 how to proceed by 253 method in Michigan 254 statutory methods of 254 Artificial pounds, rule as to, concerning boundaries . . . 83 Articles of apprenticeship, form of .. . . .... 190 Assets of estate, inventory of. ... 274 Assignment of land certificate .... 32 of mortgages .... . ..... ...... 63 general remarks upon law of. .... ....... 376 Attachments, etc., as affecting title .... ..... 47 Attestation of wills, form of 269 Attorney in fact, deed by . 40 Attorney, power of, how executed . ....... . 50 B. Bees, law as to . 236 care required in keeping . . ... 236 should not be hived near highway .... .... ....... 237 wild, rule as to ownership of . . .......... 237 Bills of exchange, remarks concerning ... 285 Bills of lading, remarks on . . . . 393 Bills of sale, law of 394 Bond in arbitration ............................. 254 Bonds, law conceiaing . 358 borrowing animals, law as to .... 242 Boundaries, acquiesence .. gj inland lakes, meander lines, etc 86 of the farm y^ rule as to highways g^ r^e as to lakes ....,..^... . ^, _._^_ gi GENEKAL INDEX. 465 Boundaries, rule as to surveys .. . 85 rule as to the sea 83 Brands and ear-marks on cattle . 235 Breach of warranty, remedies for 223 Buildings, failure to repair 141 defective, injuries by, liability for Ig6 old and unsafe, may be nuisances 173 Bull, ferocious, must be restrained 158 Business, how to bring before a meeting ................... 298 Buyer of goods, rights and remedies of 225 By-laws, constitution, etc., for a society... 296 c. Care required of carriers of persons . . 229 Careless setting of fires unlawful 177 Carriages, must be roadworthy . 118 Carrier of goods, duties of.. . 226 insures their safe delivery . 227 Carriers of persons, must carry all impartially .. ............ 231 their liability . 229 Carriers, liability of, contracts limiting 228 negligence of, evidence...... . . ................ 230 rules adopted by 231 Castle, every man's house is his............ . . , .. 129 Cattle, brands and ear-marks on . ............. .... 235 diseased, sale of . ..... ........ 234 diseased, when nuisances, liability for .. 176 in the highway, chapter on . ....... 151 law as to, generally.. ......... . . 234 must not be injured because trespassing 158 " Caveat emptor," maxim illustrated 220 maxim in law of sales . ............. .... 219 Caucus or primary meeting, how conducted 292 Certificate of regularity. .. 2S4 Cess-pools, privy vaults, etc., when nuisances 1 74 Children, illegitimate, how they inherit 259 who owns their wages 186 Circulars of instructions from land office 30 Claims, commissioners on 275 Clay, when it may not be sold by tenant 140 Codicils to wills - 269 Collecting rent - 248 Commercial paper, protesting of 284 Commissioners on claims - - 275 Common carriers, chapter on ."'26 Judge Cooley's definition of... ...... .... 326 ♦6« GENEEAL IKDEX. Common law, tenn explained......... ... . ... 3 as to descent of property . . 2^6 as to fences .... , 14* as to cattle in highway ....... 154 Committees in deliberative bodies... . . . 303 reporti of, how made ... .... 304 Composted manures, rules respecting................................ .... 139 Compound interest ..... ...... .. ...................... 62 Conditions, sale made upon.... . ...... 217 Congress, acts of . ...... S Considerations in contracts, remarks on ....... ... 7 in deeds . , . ..... 40 Constitution, by-laws, etc., for a society .. .. 296 of a State .... 3 the federal ..... . 2 Contagious diseases in cattle, must be restricted . . . 176 Contracts, against public policy . ....... ... 6 defined and explained ... ... 4 for purchase of land 35 in restraint of trade illegal . 6 limiting carrier's liability . 228 mutual assent to, necessary . 7 of hiring, by minors.. . ......... 185 of hiring, kinds of. ............... 191 of hiring, when implied........ ..... ..... ....... 191 of sale, form of .... 212 of sale must sometimes be written .. an proper parties to . .. ...... 6 requisites of .... ... ... 5 to sell land, verbal, not enforceable ... 35 valid consideration necessary .. ................. ... 7 what must be in writing ..... . 8 Convention, how conducted .. ...... 293 Conveyancing, rules of, notaries should know . 284 Corporation, deed of ..... ..... 40 how to form . , .. 296 Cottonwood, recognized as a timber tree by government ... 30 Courses and distances in surveying . . ..... .. 81 Court, probate, remarks upon ,, 2y6 Covenants, in deeds __^ ii Cow-yard, near highway, held to be a nuisance 172 Crops, how those raised on shares are divided 252 raising them on shares 2 '^7 savage, maybe set upon burglars 158 traps must not be set for 128 trespasses by 133 statute law concerning 161 Dominion over one's land 127 Dower, right of, described 39 right of, how transferred 39 how it may be released 49 a long lived right 49 widow's right of , 258 Discharge of mortgages 64 Discharge of water, may be a nuisance 175 Diseased cattle, sale of 234 when nuisances, liability for . 176 sheep, duties of owner . 235 District land office, fees of 31 Distribution of personal property 261 Ditches, drains, etc., rights in . . 109 Division fences, general remarks on . . 144 when not necessary . 147 Divorce, law as to 426 Domestic animals, injuries by, chapter on . . ... ... 164 if vicious may sometimes be killed 168 Doctrines, concerning mortgages . .. 54 Drainage, law of 105 Drains, public, town and county ditches . . 109 Drunkards, when they cannot make wills 266 Duties of employer of help 184 of employer to employe .... ..... 194 of farm tenants ..... ... .. 247 of fence viewers . ... 144 of horse breakers . ... 233 of landlord , ..... . . 245 of notary public . aSo E. BiriMurks and brands on cattle ^ GENEBAL INDEX. 469 Pass. Easements, chapter on 88-104 as affecting title ...... . 53 miscellaneous ....... . 103 what are they 88 Eaves drip, rights to m Effect of unrecorded instruments 51 Elephant, horse frightened at, no liability 160 Emancipation of minor, what amounts to 186 Emblements, what are they 15 Employer, duties of. . . 184 his duty to employe 194 liability of for employe's acts 199 Entailment, defined and explained 14 Escrow, delivery in, explained 44 Estates, administration of. .. 261 Estate at will, defined and explained 16 by the curtesy, defined 16 for life, defined and explained . 14 for years, defined and explained IS in dower, referred to ... 16 of deceased persons . 272 Estate tail, defined and explained 14 Estoppel, title by, explained 20 Estovers, owner of life estate entitled to 14 Evidence, as to boundaries . . 81 protests as.. .... ^ 288 Examination of title 4^ Excavations, dangerous, when nuisances 172 Execution of deeds 42 Execution sales, titles under 30 Executors and administrators 277 Executors, duties of 272 Ex-parte proceeding, explained 34 must be regular 34 Ex-parte sales, law must be strictly followed 34 Express license, observation upon 130 Express warranties, what amount to....' ai8 F. Farm «nim«li, Uwf eonceminj;..., 23a Farm bells, when held to be fixtures 75 Farm, boundaries of. - - 79 how to get one from Uncle Sam 21 leased, rule as to repairs M^ nuisances on, chapter concerning 169 prodncts of, purchase and sale of, «09 4?o gExNeHal index. Pass. Farm, rights on, Chapter XIV 127 surveying of, chapter on .. 79~°7 tenants of, duties, etc 247 Fanner, his liability for his animals, chapter on 15^ Farming on shares, not leasing ....... .- - — --- *S' Farriers and veterinary surgeons *33 Fast driving, what is . .... "' Father is entitled to minor child's wages , '85 Fees of district land offices 3' Fee-simple, or full ownership, explained ............. • 12 Fellow-servants, injuries by, master not liable '95 Fences, chapter on . 142 common law as to ,.....— '4* along railroads...................... . ......... .... 148 division ......... ....... . ...... ......... '44 exterior or road .............. ......... ..... •-. '47 held to be fixtures. .....,,.........-- 73 rule as to repairs of, on leased Umd . .... ... 247 statutes relating to.. ...... . ............. .... '43 when not necessary...,. . . . ........ •- '47 what are legal ....... '49 Fence law, applies to improved lands... .... ... 146 Fence viewers, their duties.. 144 Fires, careless setting of unlawful, liability for. 177 injuries from may be waste 141 when property may be destroyed to prevent 130 statutes as to setting 178 Fish, right to in private waters 134 Fishing, when it is a trespass , 133 Fixtures, things that go with a farm 69-76 principles governing 70 growing crops held to be....... ..................... 73 fences held to be .. 73 hop poles usually are . 74 rule as to agricultural machinery . 74 rule as to farm bells 75 rule as to heir-looms, etc.......... .................. Ji rule as to manure. . .... 74 rule as to pumps, sinks, etc. .... ...... 7$ tole as to title deeds..... yS rule as to statues.................. .......... 76 rule as to stones, etc............. 76 Foot passengers, rules as to..... .................. .. ...... 117 Force, when it may be used for protection ............. . ......... 137 Foreclosure of mortgages, remarks on ..-...,,..,. ... 6j titles under . ... .. .. 30 Fom of contract »f ndo..... aia 6ENEKAL INDEX. 4?! Form of memonindam of sale 212 of articles of appenticeship.. igo of protest 286 for drawing legal instruments 346 Fowls, injuries by, remedies for 167 Fractious horses, do not drive them in streets 119 Fraud and deceit vitiate contracts. 8 Frauds, statute of, explained 35 Fruit, on overhanging trees, who owns it 174 Fruit trees, sale of, implied warranty 322 G. Game, wild, who owns it ., .. 135 Gates, swinging into street, when a nuisance 171 Gas fixtures, rule as to 75 General land office at Washington .... 30 General warranty, what it covers 219 Goods and passengers, duties of carriers of 226 Goods, stoppage of, in transitu.. 224 "Goods, wares, and merchandise," defined 213 Glossary of law terms 3°9-34S Grace, days of 285 Growing crops are fixtures 73 Gun powder and nitro-glycerine factories, when nuisances 17' Guaranty, law as to . .. 434 H. Hamilton, Alexander, originator of homestead law . . 2< Help, hiring of, chapter on .... 184 Heir-looms, etc., are fixtures 76 Heirs, a word necessary to create fee simple 13, S' Highway, cattle in, chapter on .... IS' cow yard near, held to be a nuisance '72 encroachments upon, a nuisance . 170 gates swinging into, a nuisance '7' hog-pen near, held to be a nuisance '7* how it may be used "4 water wheel near, held to be a nuisance '7' what is it? "2 mle as to boundaries upon . 84 discontinuance of .--. 126 how they may be used by adjacent owners... . . . 121 how made ... — '22 lawful rate of speed in "8 kw of "» liability for failure to repair 124 4? 2 GENERAL INDEX. Pass. Highway, nuisances in 120 obstructions in 120 repair and maintenance of. .. 124 rule as to crossing . -• "6 rule as to passing teams in ........ .... ..- "6 Hired animals, duties of hirer 242 rights and duties of owner . .. 241 Hiring help, chapter on — 184 Hiring of animals, chapter on ... ... ., . .. 241 Hog-pen, near road side, a nuisance . 172 Hogs, laws applicable to . 237 Homestead act, acquiring land under.. . 25 history of 26 Homestead laws, referred to 259 Homestead land, not liable to execution for certain debts . 28 Homestead right, how released 39 Homesteads, soldiers', how acquired ... . . 28 Honor, debt of, not enforcible.. ...... , 7 Hop poles are usually fixtures,.... . .. 74 Horseback riders, law as to . . 117 Horse breakers, lien for services 233 rights and duties of 232 Horses, fractions, keep out of public highways 119 frightened at elephant 160 the law as to 232 must not be left untied in streets 119 warranty of soundness in 220 Household furniture, not fixtures . . ... ,. .. 73 House of Lords, members, quorum, etc . 307 House of Representatives, U. S., members, quorum, etc 307 Houses, side support for 102 Hunting and fishing, trespasses while . 133 I. Illegitimate child, mother entitled to earnings of . . 188 Illegitimate children inherit from mother 259 Implied contract* of Iwing ......... . 191 Implied license to enter lands ........... 12S Implied warranties , 220 Impounding animals, law as to 165 Incidental questions, in debate 299 Incumbrances, covenant against in deeds 42 Infants, their rights when hired out 185 lajwictions, only granted when there is no other remedy 181 to prevent nuisances igl Ii^nricaby defective machinery. 105 GEN^EAii INBEX. 4?S Pass. Injuries by dogs, liability for l6o by fellow-semuits, rule of liability 19S Interest, clause in moitgagei 60 compound , 62 legal rates in different States 61 Insurance clause in mortgages 59 Intelligence, amount required to make a will 26S Introduction of business in an assembly 298 Insane persons, cannot make wills . 266 Instructions for getting land from government, how procured 30 Inventory, administrator or executors '. 274 Irrigation, law as to . .. loS J- Jurat to affidavits ..'. . 282 Jurisdiction of notary public 280 L. Lakes as boundaries 83 Land, amount mentioned in deed not always binding 41 certificate, when may be assigned 32 contract for purchase of 3S described by metes and bounds 41 Districts, U. S., number of 31 fees for obtaining at District Land Offices 31-32 how to obtain by tree culture 29 how acquired under homestead act 25 how the government acquired 20 leased, law concerning ..... .- 244 mineral, how obtained ; 30 office at Washington 30 office fees . 3'-32 patent, referred to ". 22 patent, form •£.. 33 purchase of, precautions to observe 34 purchase of, from government 21 pre-emption of .. S3 sharks and tax titles 207 two ways of obtaining ... ... 17 quantity of, as determining boundaries.. 81 what constitutes possession of 135 what this term includes 9 Landlord and tenant, chapter on 244 and tenant, collecting rent 248 and tenant, law of waste important to 138 4H ftENSSAL INDEX. Fme. Landlord, must pay taxes -- ^S title of cannot be disputed by tenant *49 duties of *45 Latent support as an easement -. -— 99 Law applicable to hogs *37 as to apprentices .. . '°' as to air ... 9' as to cattle generally .... . .-> *34 as to cattle in public streets........ ^SS as to descent of property.. . 257 as to foot passengers ......... .......... — .......... — I '7 as to horseback riders.. "7 as to horses . 23' as to light 89 as to real estate .. ... . "* as to sheep . . . *35 definition of • license to enter upon lands, given by 128 of the road I" of sales, chapter on 209 of wills . . 264 sources of. .... . . . . . 2 terms, glossary of 309-345 the common, remarks on . ....... 3 where land lies governs deeds . 37 changes in, affecting title 52 concerning farm animals, chapter on . 232 Leased property, rule as to repsirs .. 246 Leased land, law concerning 244 Leases for mining purposes, easements concerning .. 101 verbal, when valid . . 245 when must be in writing . 245 Legal fence, what constitutes 149 Liability, of master to servants 194 of carrier, when it begins . 228, 230 of carriers, what excuses will relieve , 231 of carrier, when it ends 228, 230 of carriers of persons ... 229 for animals, chapter on .... .. 156 of employer for employe's acts . . l^ for trespasses upon lands . 131 for injuries from unsafe structures..... 173 of farmer for careless setting of fires.... ..... ...... 178 License coupled with an interest in land 131 express, remarks concerning....... ...... ....... 130 to enter land, implied ,, 128 lien, agistor has none at common law...... 339 GEKEEAL INDEX. 475 lien, of horse breaker! for services _ 233 Light, law concerning 0^ limitation of liability of carrier ^_ j,. Limitations, statute of, referred to __^__ _ ,g Lions, tigers, bears, etc., is it lawful to keep them? 150 Lis pendens, notices of, effect npon title ...... 47 Live stock in the public streets...... . ^___ _ _ ,-, M. Machinery, defective, liability for injuries by ... 155 what is a fixture...... ...... ........................... 75 Manure, composted, rule respecting .......... ..... 139 is usually a fixture. . yj when removing it constitutes waste . . ... 130 Man-traps and spring-guns, must not be set icg Marri^e, law as to ^2 Marriage of minor works his emancipation . 187 Married women, deeds by ., ......... . . ... 40 "Mairied women's acts," referred to . . ^o Mass meeting, how to organize . . 2^2 Master and servant, law as to . . _^ ig^ Master, duty of, toward apprentice 189 his liability to his servants ig^ Majority vote, questions that it will not decide 307 Meander lines as boundaries . ....... . 86 Meeting, township, rules for..... 2C4 how to organize 290 political, rules for . . 292 primary, how conducted ...... 292 Members of deliberative bodies, punishment of .... 306 rights of 300 of societies, trials of. . 307 Memorandum of sale, form of . 212 Metes and bounds, description of land by .... ^.i Michigan, method of arbitration in 254 termination of tenancy in .. . 250 Mining claims, remarks concerning 30 Mining lands, how obtained from government 30 Mining leases loi Minors, contracts for labor by 185 who owns tlieir wages 185 Misconduct in the road 119 Mortgages, assignment of ... — 63 chapter on, begins 54 definition of 54 discharge of 64 execution, delivery, and recording of. 59 476 GENERAL IKDEX Pxea. Mortgages, foreclosure of .. '5 Insurance clause in ... 59 payment of . . '3 power of sale in - 59 redemption of .-- '5 Motions, questions, etc., in debate 29S principal, enumerated 298 order of precedence of . ...... . 299 for reading of papers . — 3°' to amend 302 to 5x time to which to adjourn 299 to postpone to a day certain 302 to postpone indefinitely . — .... 303 to reconsider .. 3°3 to refer to a committee 302 to lie on the table 301 subsidiary, explained . 298 Mother entitled to minor child's wages if father is dead . 187 Monuments for determining boundaries ........ .... .... 80 Moving buildings through public streets 114 N. Necessaries, contracts for binding upon minors . ................ 4 Negligence, contributory, excuses for injuries by animals IS7 of carrier, evidence of.. ........... 230 by owner of animals, makes him liable • 157 Nets, must not be set across streams 134 Notaries public, chapter on .. 27S duties of. .... ..... 280 remarks on office of 279 jurisdiction of . ........... 280 should have seals . 284 liability of . 281 how to become . . 279 qualifying for office of . 280 special duties of 28S Notice, of protest 287 to abate nuisance . . ............. 170 should be given to trespassers ....... 134 to quit in Michigan . 3jo Nuisances, on the farm, chapter on .... 169 Judge Cooley's definition of... 169 kinds of 165 abatement of 179 abatement of in streets . , 121 GENEBAL INDEX. 47? Fas> Nuisances, action for dunces for .. ... iSi dangeroni excavations may be ., 17a injunctions to prcTcnt 181 in highway, what constitutes 170 in streets 120 old and unsafe structures sometimes are 173 privy vaults, cesspools, etc., may be 174 remedies for 179 overhanging trees 174 steam whistle near public road held to be ... 172 when private person may abate . . 129 who responsible for.. 170 Nursery stock, is warranted to be of kind sold for .... 222 o. Oath, how to administer . ..... 282 Objections to question in debate ..... 300 Obstruction of ways ... 99 in highways 120 Office grant, title by 33 OflScers having papers to serve may enter lands 129 Organization of a meeting 290 Ordei of business for deliberative bodies 307 Overhanging trees, when nuisances 174 who owns fruit on 174 P. Parliamentary practice, chapter on ....... aSj Parol evidence as to boundaries 81 Parties to a contract . 6 to deeds 39 Party walls, law as to .... 102 Partition fences .. 144 Parliamentary law, sources of 290 Passage on streams, right to ... . .... lii Pasturing animals, law concerning . . 238 Passing in highways, rules applicable 116 Payment of debts by administratora 275 of mortgages 63 of commercial paper, place of 285 Permanent society, how formed 294 Personal property, descent of 261 Place of payment of commercial paper 285 Political meeting, how to organize 292 Ponds, slough, swamps, etc., when nuisances _ 175 Power of attorney, remarks concerning , 449 47* GENERAL INDEX. Fasx. Possession, acquiring title by - •* exclusive right of to farm ....... ..... 127 how it may be regained . • — 'S^ of land, what constitutes '35 of lands, protects all rights S3 of property, may be protected by force .... ... ..... 13^ Power of attorney, requisites of . S° how revoked . S° Power of sale in mortgages . . ..-. 73 Power to tax limited ^. . ... --.- 203 Pre-emption of public lands............ .. ... 23 lands subject to . 24 who entitled to right of. 23 Prescription, title by, explained 19 as applied to streets . 123 Previous question . 3°' Principle, a general, running through law 4 Princip:;l motions, explained ' . 298 Primary meeting, how conducted . 292 Private grant, title by „. 34 Privy vaults, cesspools, etc., when nuisances ... 174 Probate court, remarks upon. . 276 Privileged questions, enumerated . . .. 299 Promissory notes, referred to ... 285 Property, descent of . . ... 256 Property in general, how divided .... ... ....... ....... 9 personal, distribution of . ........................... 261 ways of disposing of at death . 264 when may it be destroyed to prevent fire ... 130 Protests as evidence ..... 288 forms of . . . 286 notice of 287 shipping, explained .... 288 Protesting commercial paper . .. 284 Public drains, town and county ditches...... .. . ... ....... 109 Public grant, title given by government . . ....... ...... 20 Public highways, — see highways, streets, and roads ... ...... 122 Public lands, how obtained by government . ... ............. 20 Pumps, sinks, etc,, when fixtures 75 Purchase of farm products . 209 of land from the government . .... .. 21 of spurious seeds... .......... ... 221 Purity of air, right to . 91 Q. Quality of goods, when impliedly warranted , aao GENEBAL INDEX. 479 Quantity of land as indicating boundaries 8i Qualifying for office of notary public 280 Question, the previous 301 Questions, incidental _ 299 in debate, privileged 299 motions, etc., in debate . 298 of order in debate 300 Quit-claim deeds 41 Quorum, what constitutes... . 307 R. Railroad fences, statutes concerning 148 Railway companies, liability of. ..... . 229 Raising crops on shares ..... .. .... . 251 Rate of speed in highways.. ....... . . n8 Rate of w^es in absence of agreement.. ... , 192 Reading of papers, motion for 301 Real estate, acquirement of, chapter on 17 in general, chapter on . ...... g law of, generally lo ownership of, degrees of 12 title to, kinds of II descent of.. . 256 Recording of deeds 44 Redemption of mortgages 65 Relatives, rule as to services rendered for 193 Release of dower, how accomplished 49 Remedies, for breach of warranty 223 for nuisances ... 178 for vicious injuries . 167 for waste 141 legal, for injuries by animals 164 of buyer of goods 225 of seller of goods 223 Rent, methods for collecting 248 Repairs of buildings, general rule as to — . 141 of leased property, rule as to 246 to fences on leased land 247 Requisites of a contract S of a deed .. 3^ of wills 267 Reports of committees, how made 304 Revocation of wills. 270 1 of exclusive possession of farm 127 in the road, chapter on ; - 112 of adjacent owners in streets I2I 33 480 GENERAL INDEX. Rights, of buyer of goods .--- 225 of members of deliberative bodies .- 3°° of owner of hired animals.. .- 241 of seller of goods - 223 of way, law concerning.... 94 on the farm. .. 127 to eaves drip -. . '" Risks, assumed by employes I9S> '97 not incident to employment - - '97 Road, fences along '47 rights in, chapter on "2 how made -.- '22 Rules adopted by carriers 23' as to gas fixtures -.. 75 for deliberative bodies 289 of conveyancing should be known by notaries --• 284 suspension of, in debate . -.- ..--. 3"' s. Sales, law of, chapter on -.-.... ......... 209 contract of, form of - ----- -- 212 memorandum of, form of .. 212 cases where title passes at time of contract . 216 cases where title does not pass at time of contract ... 215 of bad seed, who must stand the loss ... 222 of fruit trees, law concerning 222 of lands for non-payment of taxes.. . . . 206 of thing not yet owned by seller . 210 of wool, " caveat emptor" does not apply 236 upon condition 217 the thing sold 210 " Sale or return," term explained . 218 Sea as a boundary ......... j ... ..... 83 Seals, well for notaries to have . ..- 284 when and when not necessary --... 42 Seeds, spurious, purchase of .... .. :.-.. . 221 Seines, statutes forbidding use of - 134 Servant and master, law as to 184 Services, when rendered for near relatives, rule - .. ... ... 193 Side support for buildings .......--...- -.... . ... 102 Signing of wills . . . .... 268 Silver and gold, mines of, who owns.,... .... 10 Sheep, diseases in, duties of owner 235 taking on shjires.-.. .......... 236 special laws as to 23S Shipping protests defined .. .... „ ..,^ $ii GENEBAL INDEX. 481 Pagk. Society, permanent, how formed 294 Soldiers' homesteads, how acquired.. 28 Soldiers, beware of swindling land agenu 28 Sources of law _. _ 2 " Sound mind and disposing memory," meaning of 266 Special duties of notaries 288 Speed, lawful rate of _ 118 Stallions, special laws concerning 233 State constitutions . . 2 State statutes 3 Statues are usually fixtures . j6 Statute of frauds explained 3 J as aflfecting sales 211 Statutes of limitations, referred to . . 18 Statutes as to descent of property 256 as to setting fires 178 concerning arbitration . 254 concerning railroad fences 148 giving liens to agistors . 839 regulating fishing rights 134 relating to wills 265 relating to fences 143 respecting minors' wages - 187 respecting cattle in highway '53 Steam road engine on highway, not unlawful . 172 Steam whistle, reckless blowing near road, a nuisance . I77 Stones, etc., when fixtures 76 Stoppage of goods in transitu 224 Stopping by the wayside J 18 Streams as boundaries 82 Streams or natural water-courses I06 light to passage on m Streets, discontinuance of 126 how they may be used 114 liability for failure to repair - — 124 made by legislative authority I2i obstructions in i-o repair of. '24 rule as to crossing them 116 stopping by side of --- "° tise of right of " eminent domain " in making... 122 Subjacent support, an easement — - 99 Subsidiary motions, explained 20b Support for buildings, an easement -- 100 Surface waters, rights in • "° rule as to ownership of .- 'OS Surveying the farm ...... .. ..........79-07 iSa G£NEJIAL INDEX Surveys as determining boundaries 85 Suspension of rules in debate 301 Swamps, sloughs, pools, etc., when nuisances 175 T. Taxation, chapter on 202 devices for escaping it ., 203 exemptions from 202 falls mainly upon land 203 principles governing power of 203 Tax claims, etc., as aftecting title 52 Tax deeds, why so often worthless 34 observations upon . .... 206 Tax history, necessity for 52 Tax sales, referred to . 34 must be regular, etc, .. 206 Tax titles, land sharks, etc 207 Taxes, definition of 203 are they valid ? how determined 204 if paid cannot be recovered 205 landlord must pay 245 must be for public purpose 204 must be levied upon principle of equality 204 stipulation in mortgages concerning 60 Teams, traveling with in streets II4 Tenant, and landlord, chapter on 244 alterations that may be made by . . 248 duties of 247 must guard property. 249 what things may be removed by 249 Tenancy, termination of 250 Things held to be fixtures 72 Timber culture act, history of 29 how to proceed under 29 Title, abstract of, necessity for 47 by private grant . ..... 34 by prescription, explained 19 by estoppel, explained 20 how acquired by possession 18 of landlord, tenant cannot dispute 249 to real estate, kinds of 11 to land, examination of . ... 46 when do it pass on sale of chattels 214 when impliedly warranted 220 to hired animals warranted by owner . 24a deedn are fixture*......... ..,..,,,., ........................ 76 GENillAL INDJiX. 4'>3 Town meetings, how conducted 294 Traps should not be set for dogs .,. 128 Traveling in highway with teams.. 114 Trees, kinds that may be planted under timber culture act 30 overhanging, who owns their fruit 174 when cutting them is waste..,.. . ... . .. 138 Tree claims, how acquired . . . ....... 29 Trespasses, how committed ._ .. 131 by animals, general rule of liability . 156 by dogs 133 by domestic animals, remedies for 165 by servants, liability for .. .... 132 by persons hunting and fishing 133 by animals pastured ....... . 240 beasts may be turned into highway ...... ....... l66 no liability to for injuries from nuisances 173 Trial of members of a society .... . 307 Trust deeds, used as mortgages 67 "Turn to the right," rule of the road 115 Turning out, rule as to, in highways 114 u. Uncle Sam, how to get a farm from . . .... • 21 Underground waters, rights in no Unrecorded mortgage, effect of ... 5' Usury, laws concerning in different States ... ..... ... 63 V. Verbal bargain for land not binding . 34 Verbal contract to sell land, not valid . 35 Vehicles, must be roadworthy . ....... 118 Veterinary surgeons, farriers, etc 233 Vicious animals, injuries by. . 157 when lawful to kill them 168 Voting, methods of 306 w. Wages, of minors, statutes respecting 187 who owns those earned by minors. 1S5 rate of when no agreement is made 19^ Wagons, must be roadworthy "8 standing in road, maybe a nuisance I7' "Warranty," term defined 218 as distinguished from condition ... .- 218 general 219 484 GENERAL INDEX. Warranty, of horses 220 express, how made 218 implied, of title 220 implied, of quality...... 220 of title to hired animals 241 breach of, remedies .. 223 covenant of in deeds ............. ....... 4' when to be in writing ...... .... .. 2ao Walls, party, law concerning ..... . ........ .. 102 Waste, general rule as to 138 chapter concerning 138 by removing manure from the farm 139 permissive, what is 140 remedies for ........ 141 by cutting trees, etc . . 138 purpose of the occupancy as determining .... .......... 140 owner of life estate must not commit 15 Water as an easement 92 for running mills ........ . ...... ........ 107 three legal conditions of 105 unlawful discharge of, a nuisance.. .... 175 use of for irrigation , . . 108 underground, rights in HI as a support for land 100 Water courses, artificial, rights in 109 natural, rights in . ... ... 106 Water-wheel, near highway, held to be a nuisance 171 Water rights and drainage, chapter on... 105-112 Water rights or riparian rights 92 Ways, how acquired, etc .. 94 obstruction of. 99 by purchase 96 how they may be used 96 by immemorial use ... 96 of necessity .......... i .... .. 95 termination of. ... . . 99 WTiich way to turn 114 Widow's dower right 258 Widows of soldiers, rights under homestead law 28 Wife's acknowledgment, remarks on .....43, 52, 283 Wife should join in the husband's deed, when , .. 39 Wild animals, not unlawful to keep them 1J9 Wild bees, who owns them 237 Wild game, who owns it 135 Wills, definition of 265 the law of. 264 common law as to..... .." 26; GENEHAL INDEX. 4^5 Fagb. Wills, different kinds of. 265 atte^tation of 269 signing of . .» 268 witnesses to . . 269 codicils to . 269 revocation of . .. 270 form and requisites of ..... • 267 what causes will avoid ... ..... . .. 267 Witnessing of deeds, object of 43 Witnesses, to deeds, number required, etc, 43 to wills 269 Wool, sale of, "caveat emptor" daes not apply .. 236 INDEX TO FORMS. A. /■ASK. Abstract of title, simple form of 347 Acknowledgments, general form of 350 of power of attorney. ...... ... ... 352 by a corporation 353 by a deputy sheriff 353 for use in New England 353 for use in other States 353-355 Affidavits, common form of 355 legal form of 356 of service of papers . .. 356 to a petition .... . . ... 357 of regularity............. ...... 357 Agreements, or contracts 358 general form of. 358 with provision for liquidated damages 359 memorandum of, to seU land . 359 for sale of land 360 land contract, installment plan 361 bond for sale of laud 363 for building a house . 364-365 for bricklayers' and plasterers' work 366 to buy a merchant's stock . .... 367 for the sale of grain 367 for leasing a house 368 with a clerk or workman for services 368 for the sale of goods, etc 369 to cultivate land on shares 370 Apprentices . 3 70 indenture of apprenticeship 370 consent of father or mother 371 justice's certificate, where mother consents 371 consent of guardian 372 assignment of indenture 372 ArlHtration and award 372 488 INDEX TO FOEMS. Paqs. Arbitration and submission to arbitrators 37^-373 agreement for judgment 373 arbitration bond. 373 notice of appointment to arbitrators - 374 arbitrators' oath 374 notice of hearing 375 oath of witnesses . 375 revocation of submission 375 notice of revocation 375 award by arbitrators . . 37^ Assignments 376 of deeds ,. 377 of demands for wages.. . ......... 37^ of accounts ... .... . ........ 37^ of leases ..... 379 of debts, generally.. . . ...............379-3^° of policies of insurance. 381 of shares of stock................ .. . 381 of seamen's wages . . 382 of a partnership interest 382 by one' partner to another 384 of a bond by indorsement .. 3^5 by a debtor for benefit of creditors 385 of a judgment .- -- 387 of a tax bid 387 of a mortgage ........... . 388 B. Bills of exchange and promissory notes ...... 389 bill of exchange, common form ..... .. ......... 39° acceptance of bill of exchange . 39" foreign bills of exchange 390 inland bills of exchange 390 promissory note, general form of ' 391 note, not negotiable 391 note, with surety ......... . ........ 39' negotiable note .... 391 joint note . ... . . . 392 indorsement to order 392 indorsement for collection 392 indorsement without recourse . 392 drafts, checks, etc 392 Bills of lading, common forms of 393 Bills of sale, short form of . . 394 •f goods generally . . ... 394 of household goods . . . 395 INDEX TO FOKMS. 4^9 Paoh. BiDi of uJe, of horse Tfith wananty....... 395 of a Tessel . 396 Bonds, law as to . . .... 398 common fonn of ... . ........... 398 judgment bond . 399 for the Bdelity of a clerk . . . 399 of the treasurer of a company .. ... ... .... 400 to indemnify lessee ..... . 400 of indemnity to discharge incumbrances . .. 400 of indemnity on paying lost note .. . ..... 401 of indemnity on taking goods on execution 403 money bond ............ . . 403 of a corporation, negotiable 404 of tenant, with surety, for rent . 404 of administrator ............ ....... . ... 405 of executor ...... . 406 c. Certificates, of acknowledgment by notary ...... ... 4°? to copy of paper on file . 408 by county clerk as to capacity of notary 408 Charter parties, general form of 4°^ Chattel mortgages, general form of.... . 409 Contracts — see agreements. Commissioners of highways, application to lay out highway 411 application to discontinue highway 411 Corporations, articles of association for business company 412 for literary society . . 413 for religious corporation . 413 engagement to take stock 414 transfer of stock . ...... . .. ..... . 414 proxy to Tote in . . . 4'S D. Deeds, of bargain and sale 4'5 of warranty, long form 416 short form 4'7 used in New York and Middle States 417 poll, in use in New England 4^9 of quit-claim, long form 4^° quit-claim, with warranty against grantor's acts 421 by a corporation 422 by an attorney - 4^3 of gift.... 423 of trust 424 •f a right of way - - 4^4 49° INDEX TO FOKMS. Pagi. Deeds, by executor, administrator or guardian 4^5 Depositions — see affidavits. Divorce . -. 426 Drafts — see bills of exchange. Division fences — see fences and fence viewen. E. Estiays, notice to town clerk of finding......... . .. 427 notice of sale of ..... . . . . 427 F. Fences and fence viewers, complaint to, of neglect to repair 428 determination by, on complaint 428 certificate by, as to value of rebuilding 429 assignment by, of shares of division fence 429 appraisement by, where one occupant has more than his share 430 notice of meeting of fence viewers 430 determination, where land is divided by water . . 43 1 determination of value of half of partition fence ... 43 1 agreement between adjoining owners, as to fence . . 432 notice of intention not to improve land 433 Foreclosure of mortgages, notice of mortgage sale ... 433 G. Guaranty, of payment of note..... ................ ..... ...... 434 of payment of rent 435 of collectibility 435 H. Highways, release of damages by owner of land .... 435 notice to persons to remove buildings from 436 notice to toll road companies to repair road 436 notice by overseer to owner to cut Canada thistles 436 overseer's list of persons liable to work on... 437 Horses, receipt for with warranty .. 437 with qualified warranty 437 L. Land contract, general form of .. . ... 361 Leases, of a farm for term of years _ 438 with chattel mortgage security. 439 short form of 440 agreement of surety for rent 441 Letters of credit . . ^__ ^i INDEX TO FOKMS. 491 M. Ti.BX. Marriage, certificate of by a magistrate 442 by a clergyman 443 Mortgages, short general form of; 443 long form of 444 assignment of. 445 discharge of 446 chattel mortgage . , _,__ 445 P. Partnership, articles of copartnership 447 advertisement of dissolution of . _. 448 of a partner's retiring 449 Petitions, to the U. S. Congress 449 to the Legislature of a State. ........ . ..... ..... 449 to the Executive of a State 449 Power of attorney, short general form of . 450 to collect rents 450 to collect debts 450 to sell and convey lands 451 to mortgage lands 451 acknowledgment of 352 revocation of .............................. 451 Promissory notes — see bills of exchange. R. Receipts, for money . . . 451 for chattels 451 for papers, etc , 452 for cash payment in full of all demands 452 for money paid by a third person 452 for money on behalf of a third person 452 to be indorsed on a written instrument 452 on account generally 452 for a quarter's rent 452 fcr payment for professional services, 453 for money to be paid over 453 for money to be repaid 453 for stock put out to winter 453 ReleaMi, general of all demands - 454 KBtual, general 454 special - ,,.,. 4S4 49^ INDEX TO FOEMS. S. Societies, eonstitation for State Agricultural .,; . 455 constitution for County Agricultural.......... .... 457 constitution for debating society .... 458 by-laws for a debating society................................ 459 T. Tax history and tax statement . . 350 Title, form of abstract of . 347 w. Wills, general form of both real and personal estate 460 APPENDIX CHAPTER I. THE GENERAL RIGHTS AND DUTIES OF EMPLOYER AND EMPLOYE. I. Impertuice of the Subject 5. Juit Cauie for Learlng. t. Relation of Employer and 6. Employer's Dutlei. Employe. 7. Employe'i Compenuition. J. Effect of Custom. 8. Liability for Labor Debts. 4. Breach of Contract 1. Importance of the Subject. The serious difficulties which have arisen in various parts of the country over the adjustment of the mutual rights of labor and capital have made this subject one of great importance. A w^idespread movement on the part of labor looking toward its complete organization seems to be taking place. In some respects it is a revolution, but proceeding by peaceful means. Its aim is, or should be, to proceed under the lawr where the law is adequate ; and where the Jaw is not adequate, by awakening the agitation necessary to bring about its amendment. How important, therefore, it is to have clear understanding as to the present status of the law, to the end that evasions and transgressions of it may be avoided, and where found insufficient it may, by wise legislation, be so amended that right and harmony may prevail. 2. Relation of Employer and Employe. The relation existing between one who employs and the one who is em- ployed arises by contract of the parties. There is no way now with us by which one person can become entitled to the services of another except by the free consent of the person performing the service. It follows that the capacity of parties to contract may affect this relation. Contracts of hiring with minors may not always be enforced against then). Upon this point see th^ 496 MANUAL OF THB LAW. ' paragraph on the subject in another part of the book. The relation of master and workman is one involving mutual confi- dence and good faith. The employe agrees to discharge his service to the best of his ability and to protect and advance his employer's interests. The employer agrees likewise to g^ard the welfare of his employes, and he will be liable to them for failure in this regard. Upon the questions of the liability of the employer to his employes and to others for the acts of his em- ployes, see chapters on these subjects in another part of the book. 3. Effect of Custom. In entering the relation of employer and employe, parties are presumed to contract with reference to the custom in vogue in the particular occupation in that part of the country where the service is to be performed. Contracts of hiring are not often written; they are generally made verbally, and in either case but few words are used. The rest is left to the custom of the trade, and the parties are bound by it. Thus in hiring by the day, if nothing is said as to the number of hours to be worked, the parties are presumed to have contemplated the number of hours customary for a day's work in that locality and trade. If the statute determines this, as it does in some States, that will govern, unless a special agreement is made to the contrary and is permissible — as it is in most cases. If the hiring is by the month, the custom as to hours and work in the way of chores or the like on Sundays and holidays, will govern. But in all cases it is well to have every point covered by a definite agreement. 4. Breach of Contract. If the contract of hiring is for a definite time, as for one month or one year, neither party can terminate it before the time ha^ expired, except for good cause, without becoming liable to the other for the injury resulting. A farm laborer, for instance, cannot hire out for the season and then leave with immunity at harvest time because he can get higher wages elsewhere. If he does so, many decisions hold that he cannot recover anything for the work already done, {19 Mo., 60; 25 Conn., j88),but the better doctrine seems to be that he can recover what is due him over and above the damage done his employer by leaving before his time is out. So if an employer turns his employe away without just cause, he will be liable for an amount sufficient to indemnify the employe for lo;.* RIOHTS AND DUTIES. ^gy of wages during the time spent In getting new employment and for loss of excess of wages contracted for above those obtained at the new employment. 5- Just Cause for Leaving. It is difficult to state with accuracy what will in all cases justify the employe in leaving before his time is out. In general if the employer requires the employe to perform immoral or illegal service, or if he fails to pay him according to contract, or to furnish him proper food or other necessaries when such are included as compensation, or if he willfully misuses or maltreats him, the employe may leave and may recover the amount due him and damages. If the employe is guilty of immoral conduct, willful disobe- dience, habitual neglect of duty, or does not possess the skill com- mon among workmen of his class, the employer may discharge him. 6. Employer's Duties. It is the employer's duty to use diligence and care in the selection of skillful, competent and trusty employes. He must then furnish them with safe and suitable means for performing the service contracted for. Having does this he will not, be liable to any one of them who is injured through the carelessness of another if both are engaged in the same service. (42 Me., 269). Nor will he be liable for injuries which result from conditions incident and unavoidable in the employment contracted for. Risks necessarily incident to the employment are assumed by the employe when he enters the service. But upon these points see the chapter on the " Liability of the Employer," in another part of this book. The employer will be responsible to third parties for all acts of his employes performed in the scope of the employment, and also contracts made by them within the scope of their authority will be binding upon the employer. 7. Employe's Compensation. One of the first duties of the employer is to pay his workmen for their work. The pay- ment of labor debts is more carefully provided for by the law than that of any other class. They are usually exempt from garnishment, when due to householders, up to $25, as is explained in the chapter on that subject. They may most always be secured by liens upon real or personal property, as is set forth in the chapter on liens ; and they take priority over other debts in very many cases. For example, the voluntary assignment an^i 498 MANUAL OF THX LAW. bankruptcy laws of the several States usually provide that labor debts shall be paid in full -whether anything remains for other creditors or not. A judgment when obtained upon a labor debt cannot usually be stayed for ninety days as in other cases, but execution will issue thereon at once if it is not paid. Such is the law of Michi- gan. (Howell's Statutes, § 7091 a.). In some States no prop- erty is exempt from execution, when the execution is issued on a judgment obtained for a labor debt, except such as the State Constitution positively requires. In Michigan a female plaintiff in a suit for a labor debt is allowed to recover an attorney's fee of five dollars in Justice Court in addition to other costs. (Howell's Statutes, § 7091). 8. Liability for Labor Debts. The liability for labor debts is more extended than that for other claims. In the case of limited partnerships, for instance, a special partner may put in a certain amount of capital into a partnership and by comply- ing with certain provisions have his general liability limited to that amount. But it will be found on examining the statutes providing for the^e limited partnerships, that the limitation does not extend to labor debts. Such debts may usually be collected from any partner, whether special or general. So lilcewise in the case of corporations, the individual members or stockholders are not personally liable. Their stock may be sequestered and sold if necessary, in certain cases, but individually they are not generally responsible for the debts of the company. Labor debts, however, against corporations will be found to be placed on a better footing and may be collected from any stockholder, if the corporation has become insolvent. Such is the law of most if not all the States; even in the case of railroad, mining and manufacturing corporations, where the owner of a single share of stock may become responsible for labor debts aggre- gating many thousands of dollars. Mechanics liens cannot attach to public buildings of any kind; but most States have provisions for securing payment of wages earned on public buildings. In Michigan, the contractor and sub-contractors are required to give a bond for the payment of •11 labor debts or debts for materials furnished in the construc- tion of public buildings. (Howell's Statutes, | 841 1 m.) CHAPTER 11. LISNS FOR THE PROTECTION OF ME CHAN. /CS, LABORERS AND OTHERS. t. Vte of Liens. 9- The Michigan Statute. t. What li a. Lien. 10. Notice to be Given. 3. Common Law Llent. II. Priority of Liens. 4. Statutory Liens. 13. Enforcement of Liens. 5. Mechanics' Liens. 13- Other Statutory Liens, 6. Requisites of n Lien. 14- General Principles. 7. Equitable Liens. «S- A Precaution. 8. HoMT to Secure a Lien. 1. Use of Liens. It has sometimes happened that unscru- pulous contractors and others have secured the valuable services of workmen in the erection of buildings or other structures, and having received their pay for the same have made off leaving the workmen without pay for their work. For the sake of pre- venting such kinds of injustice, and of making persons who furnish labor and materials secure in their compensation, the law gfives them in certain cases a claim on the product of their labor, and when that product is a structure of any kind, upon the land on which it is erected also. It is important that work- men should know how to take advantage of this wise and jtist provision. 2. What is a Lien? A lien is a claim which one person has upon the property of another as a security for some debt. The security given by a lien is very much the same as that afforded by a mortgage. Liens are of two kinds, common law and statutory liens. $• Common Law Liens. At common law a lien consists in the mere right to retain in one's possession the property of another until the debt is paid. It may be the right to keep any property of the debtor on account of a general balance due; but in most cases the lien attaches only to the particular piece of property upon which labor or money has been expended. Foi JOO MANUAL or THE JUAW. example, whenever a workman or mechanic takes into his own possession a piece of property, like a wagon or watch, etc., to do some work upon it, he is entitled to keep it until he is paid for his work. (14 Pick., 332; 7 Barb., 113). This is particu- larly the case with mechanics, tradesmen and others who are obliged by law to receive the property of others and be at some trouble or expense concerning it. As for instance, carriers, per- sons who have repair shops of any kind, etc., and who are re- quired to serve the public generally, are entitled to a lien upon the particular property concerning which the service was rendered. Thus: An express company can keep a package of goods until the express charges are paid. A tailor may keep a suit of clothes made from of his customer's cloth until the making is paid for. In all of these cases the lien is lost as soon as the possession of the goods is voluntarily given up. ♦. Statutory Liens. It will be seen that the common law Hens do not give protection to the great majority of workmen and mechanics, because most of them are employed upon or about property which remains in the owner's possession. Per- sons employed in the erection of buildings of all kinds, have no protection of this sort at common law. The legislatures of the several States have therefore endeavored to supply the deficiency by enacting laws which give protection to contractors, laborers, and in many cases to persons furnishing material, by giving them a lien upon the result of their efforts. 5. Mechanics' Liens. The most important of these statu- tory liens is that given to mechanics, laborers and material men for work or material used upon the buildings or other struct ures which their labor and materials have brought into exist- ence. Each State has its own laws upon this subject, all of which have the same object, but are not identical in their provisions. To secure the advantage afforded by these statutes it is usually necessary for the mechanic or laborer to give the owner some previous notice. Having done this he secures a claim not unlike a mortgage upon the structure which is being erected, and also upon the land under it. Such a lien when secured, attaches to the buildings and to their appurtenances, as for instance, the outhouses and other buildings necessary to the enjoyment of the pNmisea. Of Lli£NS. got Where a wing is being built on to a structure already built, the lien will attach to the main building, and the whole structure will stand as security. A material man cannot secure such a lien until the material he has furnished actually goes into the building. One who furnishes lumber, for instance, must wait until it is attached to the building before he can claim a lien. A building erected for any unlawful purpose cannot be made subject to the lien, if the contractor or laborer or other person seeking the lien, had knowledge of that fact. No lien can attach to any government building. 6. Requisites of a Lien. In order to secure a common law lien, the property upon which it is claimed must have passed lawfully into the hands of the person claiming the lien. No lien exists if the possession was acquired by wrong or misrepre- sentation, or by act of the owner's agent, unless fully authorized. Lawful possession being the necessary element of all common law liens, it follows that if the creditor once parts with that pos- session, the lien is gone, (ii Gushing, 231). Of course, by agreement the property can be returned to its owner and the lien extended, though not so as to affect third persons. (36 Wend., 467). 7- Equitable Liens. These are such as exist in equity and of which the courts of chancery alone take notice. They are for the most part too complicated for treatment in this work. The most common liens of this character are those for pur- chase money. For instance, if a man sells land, he has an equit- able lien upon it for the unpaid purchase price. So where the purchase money has been deposited in the hands of a third per- ion to cover incumbrances or the like, the seller will have a lien upon it. 8. How to Secure a Lien. It follows from what has been stated that Common Law liens are secured by the mere possession of the property upon which they exist. The benefits of the statutory liens can only be secured by carefully comply- ing with whatever conditions the statute prescribes. The mechanic or workman or the person furnishing materials must carefully examine the provisions of the statute in force in his particular State, and see to it that he complies with th»m in every particular. §03 MANUAL Oir THS LAW. As these statutes are not identical in the several States, it i* impossible to lay down with accuracy any set of rules to be fol- lowed which will be safe to depend upon generally. It will only be possible to throw out such hints as will enable the reader to secure the protection afforded by his local statute. The statutes of the different States can usually be found in the ofHces of all Justices of the Peace, township officers and the clerks of the various courts, and provision is usually made whereby any citizen may have the privilege of examining them in those places. The reader therefore, if he does not possess • copy of his State statutes, should either examine them in one of the places above indicated, or should consult his attorney. For the sake of showing, in a general way, the operation of these statute liens, the Michigan statute will be examined and the method to be followed under it indicated. 9. The Michigan Statute. In Michigan the statute pro- vides (see Laws Mich. 85, pg. 293), that every person who shall in pursuance of a contract between himself as contractor and the owner, part owner, lessee, or person having other interest in real estate, build, alter, improve, repair, or furnish labor or materials for so doing, any building, wharf, machinery, or other structure, and every person who shall as sub-contractor, laborer or mater- ial man, perform labor or furnish materials to the original con- tractor for so doing, shall have a lien therefor upon the structure being erected or repaired, and also upon the interest of the owner, part owner, or otherwise, in the land under such struc- ture; — not exceeding one quarter section of land in the country, or one city or village lot if the land lies within the limits of any incorporate city or village. The lien is upon the interest which the owner has in the structure and land at the time the work is commenced, and also upon any subsequently acquired interest The aggregate of all such liens shall not exceed the amount due or to become due from the owner. Where the materials and labor are furnished for a structure erected on the lands of a married woman in pursuance of a contract with her husband, but with her knowledge and consent, the lien attaches just the same. 10. Notice to be Given. _ Every person who wishes to avail himself of the provisions of the act, must make and file im the oflSce of Register of Deeds for the county in which the land upon which the structure being erected or repaired is situated, a 6F LISNS. 503 juat and true statement of the demand due to him over and above all legal set-ofEs; stating the time when the material was fur- nished or labor performed, and when completed and for whom, and containing a correct description of the property to be charged with the lien, and the name of the owner, part owner, lessee or otherwise if known, which statement must be verified by affidavit This statement if made by the principal contractor must be filed within ninety days, and if by a sub-contractor, material man, or laborer, within thirty days from the date on which the l»8t material was furnished or the last of the labor was per- formed. This statement may be in the following form: form of statement. State of ) County of \^' A. B. of , being duly sworn, says, that on the .... day of , 18 . . . , he furnished certain labor (or material) in and for building (or altering, improving, repairing, erecting or ornamenting) a certain situated on the following described land, ,in pursuance of a cer- tain contract with C. D. the owner, (or the contractor or a sub- contractor or other person, as the case may be), and that the last of such labor was performed (or material was furnished) on the .... day of , 18. . ., and that there is justly and truly due deponent therefor from the said C. D. over and above all legal set-off the sum of dollars, for which amount deponent claims a lien on said land (or building) of which .... is the owner (or part owner, etc., as the case may be). ■A..... ll..«. Subscribed and sworn to before me, this .... day of 18.. A failure to file such statement within the time will not de- feat the lien except as against purchasers or incumbrances in good faith without notice whose rights accrue after the ninety or thirty days, as the case may be, and before the claim of lien was filed. To preserve the lien against the owner and prevent payment by him to the principal contractor, the sub-contractor or laborer must within thir«v davs serve upon such owner, a written notict 504 fiJAMOAt OF TH« LAW. of the filing of such claim. Such notice may be served by an officer or by the party himself. Every person claiming such lien shall, if required by the owner, vrithin three days after demand therefor, furnish to him a written statement of the amount of work or material furnished to the date of the state- ment and not paid for, as nearly as he can ascertain, and every owner when requested by any sub-contractor or laborer, must within three days produce the contract between himself and the contractor or sub-contractor, and allow such laborer or sub-con- tractor to make a copy thereof, and also furnish any claimant of a lien a written statement of the amount due and unpaid on such contract A failure to comply with this provision is punished by a penalty of one hundred dollars and all actual damages occasioned by his refusal. 11. Priority of Liens. The liens provided for in the act take priority as follows: ist. All liens for work, labor or ma- terials furnished, shall be deemed simultaneous mortgages. They shall take priority of all garnishments for the contract debt, whether made before or after the commencement of the work or the furnishing of materials. They shall be preferred to all other liens or incumbrances which may be put upon the building or structure, or the land upon which the same are situated, made subsequent to the commencement of said building or other structure. They shall take priority over any other title, claim, lien or incumbrance or mortgage to or upon the land except any mort- gage which secures money advanced for the building of the structure of which said lien is claimed. 12. Enforcement of Liens. The only remedy or use of the common law Hen is to allow the creditor to i^tain possession of the goods. He cannot enforce or foreclose such a lien by selling the goods and retaining from the proceeds of such sale the amount of his claim, excepting by virtue of some statute. There will be found in most of the States statutes governing the foreclosure of commbn law liens, and these must be looked to for guidance in all such cases. The statutory liens are enforced by a method somewhat simi- lar to that by which a mortgagee is foreclosed. In Michigan such liens continue for sixty days after the affi- davit of amount due is filed. They then cease unless proceedings OJf LIKNS. . eoe we begun to enforce them. These proceedings consist of a bill or petition in chancery. Persons claiming liens are complain- ants, and all persons having rights in the property affected, and all persons l^olding other like liens are made defendants. The enforcement of a lien is a matter which should not be undertaken except by an attorney, and the details of the method to be pursued are therefore not necessary to be given in a popu- lar treatise. 13. Other Statutory Liens. Aside from the common law liens and statutory mechanic's liens heretofore described, there are other liens given by statute for the benefit of mechanics and laborers. For instance, these will be found in most of the States statutes which supersede or reinforce the common law liens already referred to. The following provision from the Michigan statutes (see Howell's Mich. Statutes, Sec. S399) is given as a sample of this kind: " Whenever any person shall deliver to any mechanic, artisan or tradesman, any materials or articles for the purpose of con- structing in whole or in part, or completing any furniture, jew- elry, implements, utensils, clothing, or other article of value, or shall deliver to any person any horse, mule, neat cattle, sheep or swine, to be kept or cared for, such mechanic, artisan, trades- man, or other person shall have a lien thereon for the just value of the labor and skill applied thereto by him, and for any materials which he may have furnished in the construction or completion thereof, and for the keeping and care of such animals, and may retain possession of the same until such charges are paid." Another somewhat similar provision of the Michigan statutes (see Howell's Mich. Statutes, Sec. 8400) is as follows: «• When any person shall deliver to any mechanic, artisan or tradesman, any watch, clock, article of furniture or jewelry, implements, clothing, or other article of value to be altered, fitted or rep^red, such mechanic, artisan or tradesman shall have a lien thereon for the just value of the labor and skill applied thereto by him, and may retain possession of the same until such charges are paid." In these cases, if the owner of the property shal' "