Cornell University Law Library. the gift of lillian huffcut BINGHAMTON, N. Y. November 27, 1915 9181 Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018876981 KF 889.3.B6T" """"*">' '■"'"^ „ Business law / BUSINESS LAW BY MYKON T. ELY, ESQ. OF THE KOCHESTER (N. Y.) BAR WILLIAMS & ROGERS Rochester, N. Y., and Chicago, III. 1899 ibs71> Entered according to Act of Congress, in the year 1891, Bv WILLIAMS & K0GEK3, In the OfDee of the Librarian of Congress, at Washington, D. C. E. B. ANDREWS, PRINTER AND BOOKBINDER, ROCHESTER, N. Y. PEEFAOE. The importance of the subject of Business Law as a feature of a course of commercial studies is too generally recognized to need enforcing here. To what extent it shall be taught and what is the best way of teaching it, are the only questions to be settled. This book has been prepared with a view to providing those schools which desire to teach the more important topics in this subject a suitable text-book. The work is brief, yet, owing to the terseness with which the principles are stated, it is fairly comprehensive. It is believed that no other work now in print contains so much information on the subject of commercial law in so compact a form. - Legal technicalities have been avoided, except in the list of definitions at the end of the book, and the illustrations are of the most practical character. OOXTEI^TS. Introdtiction - 5 Contracts ■. - 6 Negotiable Paper 33 Sales ob' Personal Property 55 Agency 66 Partnership 72 Corporations 77 Guaranty and Suretyship . 84 Common Carriers 89 Innkeepers 98 Contracts op Hire 95 Insurance 98 Liens . _ 103 Pledging op Personal Property 104 Interest and Usury 106 Master and Servant 109 Husband and Wipe 114 Telegraph and Telephone Companies 117 Patents, Copyrights and Trade Marks 120 Landed Property 124 Contracts for the Sale of Land 144 Landlord and Tenant 148 Fixtures 156 Nuisance 158 HiG HWATS 160 Definitions of Legal Words and Phrases 166 Business Forms 185 Index to Business Forms 196 General Index _ , 197 II^TEODUOTIOI^. The Reason for Commercial Law. — Nations have rules governing their conduct with each otlier, called International Laws. Each nation enacts laws, called Statute Laws, govern- ing the conduct of its citizens, toward each other as citizens, and toward the State. For the same reason, men, in their private business transactions and dealings with each other, find it necessary to have law to go by. Tlie Source of Commercial Law. — It came from Eng- land. The colonists brought it with them, and when they finally reduced the whole country to English sway the Common Lata of England became the law of the United States of America. The Origin of Commercial Law. — Custom brought it about. Merchants transacted their business in an accustomed way so long that the custom gradually became the law from which no man could depart. Men exercised rights in an ac- customed way, over articles of personal property or over land, for so long a time, that their rights began to be respected by others, and finally those rights, including the manner in which they had exercised them, became recognized law. Statute Law. — It is frequently found that the rules of the common law, while adapted to the condition of things in Eng- land, will not answer for the United States. The remedy is by statute laws. They are laws enacted by the Legislature of a State and they overrule the common law. The rules of law given in this book are mainly common law rules. There are some statutes, however, which have been so universally enacted by the several States, as to constitute almost uniform laws. Whenever the common law has thus been abrogated, altered or supplemented, a knowledge of the subject matter of the stat- ute law is equally necessary. COWTRAOTS. Wlien You Make a Contract. — When you buy or when you sell, when you make any kind of a bargain or agreement, it is a contract. In short, whenever for a sufficient considera- tion, you agree to do or not to do a particular thing, you make a contract. You may say that you have made a purchase, or haye accepted a position, or call it what you may, you have simply made a contract. The only question is the particular kind. In the first case, it is a contract of sale. In the last case, it is a contract of hiring of service. Division of Contracts.— Contracts are divided into : 1. Contracts by specialty, always written. f 1. Written, always express. 3. Parol contracts, ■( i 2. Oral, either, \t ^:r HO\V YOU MAY MAKE A CONTRACT. By TTord of Mouth. — The vast majority of contracts are made by means of spoken words and are called oral contracts. By Writing. — When the terms of agreement are put in writing or printed or otherwise expressed on paper and signed, it is a written contract. By Specialty. — If seals are affixed after the signature on a written contract, as in a deed or mortgage, it becomes a con- tract ly specialty. In our day the seal adds very little weight to a contract. In the days of old, when men could not read or write, and they put their names to a contract by impressing their seal in melted wax, it had some practical use. Never- theless, the statutes of most States require seals on certain classes of instruments, like deeds and mortgages, and when- ever required they must be affixed. In some States a scroll made with a pen will answer. CONTRACTS. 7 KINDS OF CONTRACTS. Oral and Parol Contracts.— Observe the difference between oral contracts and parol contracts. Well educated people some- times confound them, owing to the similarity in the derivation of the two terms. A parol contract is any agreement not sealed. It may be written or oral. Express and Implied Contracts. — Observe the terms ea;- press and implied, as applied to contracts. If all the terms and conditions of the contract are fully spoken or written it will be express. If something is left unsaid, which ought to be said in order to make a complete contract, the law will im- ply what is unsaid and the contract will be an implied contract. If you say to the grocer : "Send me a pound of full cream cheese at twenty-five cents per pound and I will pay for it on delivery, " you make an express contract. If you say : " Send me a pound of cheese " there is to be implied that you will pay for it, at the market price when it is delivered, and that the cheese shall be merchantable cheese. Executed and Executory Contracts. — Observe the difEer- enee between executed and executory contracts. If you pay for the cheese and take it away with you, that is a finished trans- action. It is an executed contract. If it is to be sent to your house, it is an unfinished contract, or an executory contract. It still depends upon the cheese being actually delivered. Something remains to be done, and that makes it an executory contract. THE FOUR ELEMENTS OF A CONTRACT. Meaning of Elements. — This means simply, that there are four things, or conditions, which must exist in order to form a valid contract. These necessary conditions are : 1. Parties. 3. Their consent. 3. A lawful consideration. 4. The subject matter. PARTIES. Their Age. — The parties to a contract must be of full age. The law had to fix upon some arbitrary age, before which a SUSTJ^ESS LAW. person must be considered an infant or minor, and after which an adult, and the age of twenty-one was selected. Some States, liowcTer, have enacted statutes whereby females, resident there, cease to be infants at eighteen. Infants or minors, therefore, belong to the class of incompetent persons. Incompetent Persons, are persons haying no legal capacity to make a contract. The reasons for such incapacity and their divisions are : r 1. Infants. 1. By reason of legal disability, < 2. Married women. ( 3. Alien enemies. 1. Idiots. By reason of natural disability, \ 2. Lunatics, 3. Drunken persons. CONTRACTS BY INFANTS, MARRIED WOMEN AND ALIEN ENEMIES. An Infant's Contracts for ^Necessaries. — An infant is said to be incompetent to make a contract. Contracts for nec- essaries are an exception. (1) An infant may buy such articles of food and clothing as are proper and necessary for the station in life in which he has been brought up and to which he be- longs. He may contract for such, (2) board, (3) medical attendance, and (-i) schooling as are suitable and proper, and all such contracts will be binding, to the extent of the fair market value of what is furnished. All this is providing his parents or guardian unjustly fail to support him. But if he run away from home without cause, he is unable to make a binding contract. The tradesman who takes advantage of a- minor and charges him an exorbitant price, cannot lawfully collect his bill, even though the minor agrees to pay it; nor can the tradesman keep more than the reasonable value, if the minor has paid it. The articles purchased must be suitable to the minor's station in life. It doesn't stand to reason that the son of a day laborer could buy a five hundred dollar watch and bind his father to pay for it, notwithstanding his father had turned him adrift in the world. CONTRACTS. 9 An Infant Disaffirms or Ratifies his contracts on coming of age. The law doesn't say he shall not make any contracts except those for necessaries. It says that if he does they are voidable at his election. Within a reasonable time after coming of age he must repudiate them. If it is in his power he must restore to the other party whatever he has received from him. If he fails to do this he takes the chance of ratifying the con- tract by his silence; and he always ratiiies it, (1), by expressly recognizing it; (2) by partly performing it; and (3) by retain- ing the benefit or proceeds of it. " Pleading tlie Baby Act " is the rather inelegant expres- sion used by lawyers, when a man who is sued for failing to keep an agreement, defends the suit on the ground that he was under age when he made it. It is not considered manly or honest. The adult person dealing with a minor is bound by the agree- ment, and cannot back out on the ground that the other is a minor. The minor cannot waive his rights of infancy by any possible form of agreement. An Infant's "Wrong Doings are just as punishable as the wrong doings of an adult. For instance, if the infant induce an adult to make a bargain with him by fraudulently represent- ing to him that he is of age, even though the bargain might not be good in law, he is not only bound by it, but is punish- able for making it. If he commits an assault and battery he is liable in a civil action for damages, and is liable to be pun- ished for the crime. Contracts of Married Women. — The common law of England, as brought over and established by our forefather colonists, forbade a married woman to make a contract. An unmarried woman of full age could be a party to a contract, and so could a widow. A married woman's interests were con- sidered to be so thoroughly joined to those of her husband as to give her no power to make a contract. It was the disability of coverture. 'The woman's legal personality was united and merged in that of her husband. The Legislatures of most States have since enacted statutes doing away with this disability of the wife, to a greater or less extent. In nearly all the States a married woman can now 10 BUSINESS LAW. transact and carry on whatever business she chooses in connec- tion with her estate and her affairs. Alien Enemies. — Under the same class as infants and married women are alien enemies. Citizens of nations which are at war with each other are not allowed to carry on business intercourse. The policy of this is to keep the citizens of each nation attached to their own country, and to keep their interests adverse to the interests of the citizens of the other nations. CONTRACTS BY IDIOTS, LUNATICS AND DRUNKEN PERSONS. Natural Disability is said to be the cause why these per- sons cannot make a valid contract. They cannot understand the effect of the agreement and consequently ought not to be bound by it. Observe the difference between the contract of an idiot and the contract of a lunatic. In the eye of the law the idiot is wholly deficient in understanding. He is not sup- posed to have a glimmer of reason. It is not always so with a lunatic. It is sometimes a pretty nice question, as to when a person is a lunatic and incapable of transacting business and when he has sufficient reason to understand the nature and effect of an agreement, although his mind may not be as clear as an ordinary mind. This is the distinction : An idiot is devoid of understanding from birth ; a lunatic is born with understanding, but has afterward lost it. There is a way, therefore, of legally fixing the time when the lunatic has be- come such, while such a way is not necessary in the case of an idiot. The idiot is incompetent from birth. A lunatic is not incompetent until adjudged so by due process of law. His contracts and obligations bind him until then. They are valid until his insanity has been judicially established, and thence- forth he can make no valid bargain. Therefore, contracts made before a person has been adjudged insane are not absolutely void, but are voidable. They remain in full force and effect until they have been disaffirmed by the lunatic or his guardian. Necessaries. — The same remarks apply to the contracts of an idiot or a lunatic, for necessaries, as in case of an infant. CONTRACTS. 11 The law will hold such contracts valid. The same may be said of contracts which a lunatic may make during a period called a lucid interval, which occurs in some forms of insanity when the person is sane for a short time. Drunken Persons. — Complete intoxication destroys the reason just as much as lunacy or idiocy. The drunken person is just as incapable of making a valid bargain, as the lunatic or idiot. The drunkard may make a bargain, but it is voidable as in the case of a lunatic. It may be ratified or disaffirmed when the drunkard becomes sober ; bu.t after he has been ad- judged an habitual drunkard, he is as completely incompetent as an adjudged lunatic. Drunkenness as in case of infancy, is no defense for wrong doing. While partial drunkenness does not render one incapa- ble of making a contract, yet it is always material when the question arises whether the drunkard has been defrauded. Committees or Guardians. — The law provides for the appointment of representatives of infants, idiots, lunatics and drunkards who are called committees or giiardians. The prop- erty and business of the incompetent person is placed in the hands of such committees or guardians who are lawful ofiicers of the court, and make bargains for the incompetents by and under the direction of the court. THE CONSENT OF THE PARTIES. It takes Two to Make a Bargain. — This is the popular way of saying that all tlie parties to the contract must mutually assent to its terms. Mutual assent is the second condition of a valid contract. When the parties mutually consent, then their minds are said to meet. If one party is misled, intention- ally or unintentionally, by the other, or, if there is a clear misunderstanding of the terms of the agreement, their minds do not meet. There is no assent. One is thinking one way while the other thinks another way. This will not make a con- tract. Both must think the same way. How Minds Meet. — One party makes a proposition ; the other accepts it. There is (1) a proposition ; (2) its accept- ance or, the assent to it. They are called the offer and ac- 13 BUSINESS LAW. ceptance. The offer is not binding — it has no effect — until it is accepted. The Acceptance Must be Unqualified. — The minds of the parties do not meet if the acceptance is in any way qualified. If there are any conditions imposed by the person accepting there is no assent, until the conditions have been met or per- formed. The parties must assent to the same thing in the same sense. How tlie Proposition May be Made and Accepted. — (1) By word of mouth, (2) by writing, (.3) by signs, (-i) by silence. Silence gives consent very frequently in every day affairs. When the Proposition is Accepted. — If the proposition is made by mail or telegraph, it is accepted when a letter of ac- ceptance is posted or when a telegram of acceptance is left at the telegraph oflBce to be forwarded. It may be hours or days before the man who makes the offer knows that it has been accepted. He must keep it good, even though the letter or telegram goes astray and does not reach him. That is his risk. If the offer is conditional on an acceptance by return mail, the acceptance must be sent by the next mail. If there is no time for acceptance stated in the offer, the letter must be posted within a reasonable time. If the offer is made by word of mouth it should be accepted then and there. If the party who makes it goes away, it may be withdrawn, unless time is given to think about it. Tlie Assent Must be Free-will One who is threatened with bodily harm or with illegal imprisonment, or stands in fear of personal danger, is not bound by his agreement. It is dit- ress, and he is said to be wider duress. He does not make the contract of his own free will. Money paid under du-.ess may be recovered. Legal imprisonment or confinement, oi the fear of such, is not duress. The Assent Must be Fairly Obtained.— Fraud vitiates or makes void every agreement. A contract or the assent to a con. tract, obtained by fraud, is voidable. The minds of the parties do not meet, when fraud is practiced. The party upon whom the fraud has been practiced, may disaffirm the contract immedi- CONTRACTS. 13 ately on discovering the deceit, or he may overlook the fraud or deceit and ratify the contract if he chooses. Where there is a mutual mistake as to the terms of a contract, the law will declare it void on the application of either party. Definition of Fraud. — Fraud is any act, sign or language which one person uses to obtain an unfair advantage over another. It may consist in silence or concealment where an explanation ought to be made. It is more frequently active misrepresentation. A vendor or seller has no right to remain silent about a defect in the property he is selling, which is well known to him and cannot be known to the vendee or buyer. Especially is this so if the vendee relies on the vendor to com- municate the true state of facts. Ignorance of Fact and of Law. — The validity of an agree- ment depends on whether the parties know what they are agree- ing to do. If there is any misunderstanding, there is no assent. Their minds do not meet. By misunderstanding is meant, ignorance of what a party is agreeing to do, which is ignorance of fact. It does not mean ignorance of the legal liability which lie incurs. That is ignorance of law. Illustration. — Suppose that you have a rich uncle in South America and you are his only heir at law. He dies but you are ignorant of it, and a speculator offers you iive hundred dollars for your interest in your uncle's estate. It is worth thousands. You think that a certainty is better than an uncertainty and accept the oJier. Your ignorance of your uncle's death is ignorance of fact, and you can refuse to carry out the bargain. If you know he is dead and that you are his only relation, but do not know that you inherit his property, it is ignorance of law. You are bound by your agreement. Ignorance of fact excuses. Ignorance of law does not excuse. " Every man is presumed to know the law." THE CONSIDERATION OF A CONTRACT. A Lawful Consideration is another necessary condition or element of a contract. It is the reason why the parties make the contract, or it is the inducement which leads them to bind themselves by the contract. An agreement without any con- 14 BUSINESS LAW. sideration to support it, is void. Tlie payment of money by one party to the other is most frequently the consideration of an agreement. A Sufficient Consideration, is not necessarily the transfer of money. It is either 1. Good, or 2 V 1 hi i ■*■■ "^ benefit to the promisor, 2. A loss, or inconvenience to the promisee. A Good Consideration, consists in natural love and affec- tion, between near relatives. When natural love and affection impels a father to deed a house and lot to his child, there is a good consideration for the deed. Wlien Sufficient. — A good consideration is sufficient, as between the parties, to uphold a contract which has been finished. After the father has delivered the deed, he cannot get the property back. Wlien Insufficient. — (1) A good consideration is insuffi- cient when other persons would be defrauded if the contract were allowed to stand. The father might deed the place to his child, just to put it out of his hands so that his creditors could not get it. In that case they could have the deed set aside. The rights of third persons intervene. (2) A good considera- tion is insufficient to uphold a mere promise to do something. It will not uphold an executory agreement. The father may promise to deed the place to the child at some future time, but he cannot be compelled to keep the p)romise. A "Valuable Consideration is either 1. A benefit to the person making the promise, or, 2. A loss or inconvenience to the person to whom the prom- ise is made. The Benefit may be anything of value given or promised to be given to, or done or promised to be done, for, the person who makes the promise. I may make a bare promise to give you a horse. I am not bound to keep it, for there is no con- sideration. But if I promise to give you a horse if you will cure one of my other horses, I am bound by my part of the con- tract, when you perform yours. You may not do the work yourself. You may hire a veterinarian. If I am benefited it is a consideration for the bargain. CONTRACTS. 15 The Lioss or Inconvenience may be anything which costs you time, trouble or money. Curing my horse is a loss to you, if nothing more than of the time it takes you. "Time is money." The cure may be effected in an hour, while the other horse I promised you may be a valuable one. I cannot shirk my bargain for that reason. It makes no difference how small the benefit I receive, or how insignificant the loss you sustain, as compared with the thing I promise you. So long as I receive the benefit I calculated upon, or so long as you sustain any loss whatever of time, trouble or money, there is a valuable consid- eration for the contract and I must keep it. "The slightest consideration is sufficient for the greatest undertaking, " is a legal maxim. Observation on Sufflcient Considerations. — There are many instances of sufficient considerations which do not arise in every day business affairs. They are not discussed here, but the student should know that there are such. Some of them are : The prevention of litigation by compromise ; forbearance of legal proceedings ; offering a reward ; trust and confidence imposed ; mutual promises ; assignment of chose in action ; subscriptions for religious or charitable purposes. They are discussed in Kent, Vol. II, marginal page 463. The student who desires more information on them can find them there. Invalid Considerations. — The fact that you are morally bound to carry out an agreement — that there is a moral consid- eration or obligation, — does not create a legal obligation. The law does not assume to enforce every promise which a man of nice honor or strict integrity would feel bound to perform. If you voluntarily promise, in good faith, to pay debts which your brother has already contracted, you are not legally bound to keep the promise except it be in writing. There is no con- sideration. But you are under a moral obligation to carry out your promise. Nor are you bound by a promise which has an illegal or impossible consideration. Failure of Consideration. — Where the consideration total- ly fails and what is supposed to be a sufficient consideration, proves to be a nullity and of no value, the contract may be avoided. At the time of the great blizzard of 1886, an Easterp 16 BUSINESS LAW. capitalist had a cattle ranch in Western Kansas. He sold his five thousand head of cattle. The cattle had already perished in the blizzard, but it was not known in Kew York. There was a total failure of consideration and the purchasers were entitled to have their money refunded. There is a failure of consideration in all cases of purchase and sale when — un- known to the parties— the thing sold is dead or destroyed at the time of the sale. There is a failure of consideration, also, when the title to the things sold, fails. For illustration, no man can give or get good title to an article which has been stolen from the rightful owner, for the title totally fails, and with it the consideration. THE SUBJECT MATTER. Observation. — You have learned, (1) who must be the par- ties to a contract, (2) about their assent, and (3) the consid- eration. You have learned, also, that the parties must be such as can lawfully contract, that their assent must be fully and freely given, and fairly obtained, and that there must be either a good or a valuable consideration. One thing more and you have the four elements or necessary conditions of a contract. The fourth element is the subject-matter. The Definition. — It is the thing to be done or omitted. A short definition, but it tells the whole story. What it May Be. — It may be anything lawful. It cannot be anything unlawful. It goes without saying that a man can- not lawfully agree to do anything unlawful. If he agrees to do anything which the law prohibits, or agrees not to do any- thing which the law says he must do, the subject matter of the agi-eement is unlawful. The contract is illegal and void. Why Illegal.— Because courts are created for the purpose of administering law and justice. Their business is to uphold private and public morality. They will not enforce an agree- ment which is destructive of public or private morals, or which is contrary to public policy or fraudulent. Instances of lUeg-al Subject Matter.— Most of the in- stances in which a subject matter is illegal, belong to one of the following three classes. These three classes— three reasons CONTRACTS. It why the subject matter is illegal and their subdivisions — are as follows : r 1. In restraint of marriage. 1 a™- „j- «„w,-„ ^«k„„ ] 3- In restraint of trade. 1. Against public policy. ^ 3^ p^.^e.^i^e ^f justice and gov- (^ ernment. 1. Immoral life or publications^ 2. Immoral. -j 2. Sunday desecrati,on. 3. Bets or wagers. 1. Fraudulent upon either party. 3. Fraudulent. \ 2. Fraudulent upon third par- ties. In Restraint of Marriage. — The law makes marriage an easy contract to enter into and a hard one to break. It does so because it favors marriage, and because it encourages marriage, it discourages everything in restraint of marriage. It says that no contract which wholly restrains one from marrying, shall bo valid. A contract may partially restrain one from marrying and not be illegal, but the partial restraint must be reasonable. Your father's will may give you a legacy, provided you do not marry, say, until you are twenty-five. By that time you ought to be able to choose well and avoid a mesalliance. It would be a reassnable restraint and the will would be valid. But if it left you the legacy provided you never married, it would be void as to that provision. On the other hand, a man can leave a legacy to his wife on condition that she remain his widow. The law seems to be satisfied if a person marries once. In Restraint of Trade. — All kinds of lawful trade conduce to the public welfare. Just as the law favors marriage as a social institution, so it favors the establishment of diversified industrial interests. Contracts which wholly restrain the car- rying on of a lawful trade, injure the public welfare. They are against public policy, and therefore the law says they are void. But just as marriage may be limited or partially re- strained, so it is about restraining a trade. The partial restraint must be reasonable. It is for a court of justice to say, in view of the particular facts, what is a reasonable restraint. Suppose you wanted to buy out a coal business, and wanted to fix it so that the seller could not go on supplying the same 2l 18 BUSINESS LAW. customers, after you had paid him the consideration. Now you may bmd him in the contract never to sell coal in the same town or city; never to sell coal anywhere for five years; never to sell coal to the same customers. He may agree to one of these conditions or to all of them. The restraint would be legal. But if you bind him never to sell coal anywhere, at any time, to any persons, it is a complete restraint upon his engaging in his trade again, and the contract is void. He may commence delivering coal to the same customers, the next day, and you cannot stop him. " Corners," "trusts," and "strikes" to control trade or labor are unlawful because in restraint of trade. They may be only in partial restraint, but the courts usually say they are unrea- sonable. If not reasonable they are unlawful. Perversive of Justice and Government. — Courts and governments are instituted, primarily, for the administration of justice and the promotion of the welfare of society. The law, therefore, without stultifying itself, could not counte- nance contracts which had for their object the perversion of the administration of justice and government. Any bargain or agreement which has for its direct or indirect object the "packing" or "bribing" of a jury, the bribing of g, judge, or in any other way interfering with the due course of litigation, is illegal. For the same reason, a contract is illegal which seeks to influence the acts or deliberations of a legislative body. An agreement made with a lobbyist, having for its end the improper influencing of legislation, is illegal. Contracts Illegal for Immorality. — To this class belong agreements for the performance of any immoral act. Agree- ments which tend to further the leading of immoral lif e j agreements for the distribution or publication of obscene books or pictures; agreements made on Sunday, since they are regarded as a desecration of the Lord's Day. In some of the States, however, the statutes against worldly labor or business on the Sabbath, prohibit only the open transaction of business. By the common law, wagers on a prize fight or a dog fielivery of Deeds. — A deed may be dated and executed a long time prior to its delivery. Until delivered it has no force -or effect. Courts are frequently called upon to decide what constitutes a delivery, and to say when a deed has been deliv- •ered. A deed may be delivered to the grantee himself, or to his agent. It may be delivered by the grantor or by his agent. Moreover, it may be in the hands of the grantee or his agent for some time and yet not be delivered, because not accepted, or because the consideration has not been paid. The delivery is governed by the intention of the parties. There can be no delivery until the grantor or his duly authorized agent has passed it over with the intention that it shall take effect, beyond recall, and it is accepted with like intent. Delivery in Escrow, is the delivery of a deed to a third person, with instructions and power to deliver it to the grantee "when some act has been performed or event taken. place. The grantor cannot recall the deed from the third person, nor is the grantee entitled to it until the conditions under which it is held by the third person have been complied with. Proof or Acknowledg-ment of Deeds. — A deed is binding upon the person who signs it as soon as it is executed and deliv- ■ered. An acknowledgment of it is not necessary to its validity. Acknowledgment is only necessary in order to entitle it to be recorded in the public office where deeds are recorded. An -acknowledgment is the formal admission by the grantor before an officer empowered to take acknowledgments, to the eilect that the grantor executed it, and that it is his deed. Acknowl- ■edgments are usually made before a justice of the peace, notary public, or commissioner of deeds. In some States the officer "taking the acknowledgment is obliged to examine the grantor's -wife separately from the husband, in order to ascertain whether 136 BUSINESS LAW. she executed the deed of her own free will. In some States a. deed may be " proved " hy the affidavit of a witness who saw it signed, so as to entitle it to record. Recording of Deeds. — The practice of recording deeds or other real estate conveyances is of comparatively modern origin. It is wholly regulated by statutes. Such statutes are frequently referred to as the recording acts. A deed is not invalid be- cause not recorded, unless the statute says it must be recorded. The statutes are usually permissive. They allow the holders to- record their deeds if desired. As between the grantor and the grantee, excepting in States where recording is required, a deed is perfectly valid whether recorded or not. The prime object of recording is to give notice to third persons of the change of title and to make the conveyance valid as to third parties. The practical advantage of recording arises in case a deed or conveyance is lost. A copy, certified by the officer with whom it is recorded is as good evidence of title as the original. Illustration. — If you purchase a piece of property in a State- where the statute does not compel you to record your deed, you may conclude not to record it, but instead file it away in a safe place. As against your grantor, your title to the land is good. If he were dishonest, however, he might sell the land again, or mortgage it, to a third person, without knowledge of your interest. If such person purchases in good faith without knowledge that you hold a deed, and should record his deed or mortgage before you record your deed, he would have a better title than you. Your grantor, it is true, might commit a crime, but he could cheat you out of your property. The better prac- tice is to record all deeds or real estate conveyances, as soon as delivered. If the conveyance is recorded all persons are pre- sumed to know of it. Abstracts of Title, or "searches "as they are frequently called, are written documents showing the conveyances which have been made of a piece of land, during a specified period. They show also what, if any, incumbrances there are on the property by way of mortgage, judgment, or otherwise. If' there is a deed which some careless owner has failed to record,. LANDED PROPERTY. 13? ttere is said to be a break in the chain of title, and the ab- stract will show that also, as well as any defe'cts arising from the failure of persons having an interest in the property to execute deeds. Abstracts of title are made either by the pub- lic ofiBcer having charge of the office in which deeds are re- corded, or by title abstract, or title insurance companies. The compensation is frequently fixed by statute. In these days it is quite customary for the purchaser of property to demand an abstract of title and for the purchaser to give it. MORTGAGES. Their Nature. — A mortgage is a conveyance of land to a creditor as security for the payment of a debt. Upon the pay- ment of the debt, the conveyance becomes void. It is the pledging of land for the payment of a debt. The debtor, or person who gives the mortgage, is called the mortgagor. The creditor, or person to whom the mortgage is given, is called the mortgagee. What has been said regarding the parties to a deed is equally true as to the parties to a mortgage. Tlie Defeasance. — An ordinary mortgage is in the form of an ordinary deed. It contains the usual requisites of a deed. It appears on its face to be an absolute conveyance of the prop- erty, with the exception that it contains a clause stating the terms of payment and a defeasance. It is called the defeasance clause. It is a recital that the conveyance shall be void, if the money, for the payment of which the mortgage is given, is paid according to the terms specified. It is sometimes provided by statute that a conveyance intended to operate as a mortgage, shall be void unless the defeasance clause is incorporated in the mortgage or recorded with it. This is intended to reach grasp- ing creditors, who demand a deed of property as security for a debt, thereby vesting the title in them, and perhaps making it difficult for the debtor to secure restitution. The courts how- ever hold that a conveyance given as a security, is a mortgage even though it appears on its face to be an absolute deed. Power of Sale and Redemption. — Mortgages usually con- tain a clause empowering the mortgagee to sell the property according to law, and out of the proceeds to pay the debt and 138 BUSINESS LAW. costs. At any time before the sale the grantor or his repre- sentatiTes, have the power of redeeming the property by pay- ing the debt with interest and costs, if any. For that reason the grantor's interest in land on which he has given a mort- gage, is called the equity of redemption. A sale of mortgaged property to satisfy a mortgage must be conducted according to the statutes which are provided for such cases. It is called the foreclosure of the mortgage. In some States the mortgagor is allowed by statute a specified time after a sale in which to re- deem. In other States a sale cuts off his interest entirely. Execution and Delivery. — "What has been said relative to the execution and delivery of deeds applies to the execution and delivery of mortgages. The rules relating to the acknowl- edgment and recording of deeds are also applicable to the acknowledgment and recording of mortgages. Usual Form of a Mortg-age. — The following is an ordinary form of a mortgage : MORTGAGE. Made this First day of June, in the year of our Lord one thoiw sand eighthundred and ninety-one, '^ziXOUnMartiii Hunlcley and Kittie Hunlcley, his wife, of the City and County of Neio York, of the first part, andHalton Davis, of the Toiun of Brighton, X. T., of the second part, WxXm^uVo., That the said fart' es of the first fart, ill consideration of the sum of One Thousand Dollars (SIOOO), part purchase price of the premises hereinafter de- scribed, to them duly paid, the receipt whereof is hereby achnoivl- edged have sold, and ^j) i\it§t ^Xt^mi^, do grant and convey to the said party of the second part, his heirs and assigns, gkU that ©art ox "g'AXSid nt ^attft, situate in the Town of Brighton, County of Monroe and State of Neio York, and being part of Town lot S5, bounded southerly by Highland Avenue, easterly and tuesterly by the easterly and westerly lines of said lot S5, and northerly by a line piarallel with Highland Avenue, and so far distant northerly as to contain three acres of land. SHJtijS ^rattt is intended as a security for the piayment of the siim of One Thousand Dollars of principal, payable §100 on the first LANDED PROPERTY. 139 day of January next, and $50 quarterly thereafter until said principal is fully paid ivith interest from the date hereof at the rate of six per cent, per annum, payable semi-annually on all sums remaining unpaid at the times of payment, according to the con- ditions of a ^and this day .executed and delivered iy the said Martin HunJdey to the said party of the second part. And in case default shall he made in the payment of the principal sum herely intended to he secured, or in the payment of the interest thereon, or any part of such principal or interest, as above pro- vided, or of the taxes, assessments or insurance hereinafter men- tioned, it shall be laivful for the party of the second part, his executors, administrators, or assigns, at any time thereafter, to sell the premises hereby granted, or any part thereof, in the man- ner prescribed by law, and out of all moneys arising from such sale, to retain the amount then due for principal, interest, taxes, assessments, or insurance, together with the costs and charges of malcing such sale, and the overplus, if any there be, shall be paid iy the party making such sale, on demand, to the said Martin Hunlcley, his heirs and assigns. And this conveyance shall ie void if full payment of the aforesaid moneys, both 23rinci2}al and interest, be made as hereinbefore specified, and if the aforesaid covenants and each of them be well and truly hept and performed as hereinbefore specified and provided. ^tt W\iUt^& W\l,tussi, The parties of the first part, have here- unto set their hands and seals the day and year first above ivritten. Sealed and delivered m the presence of Geo. C. Jon"es, S. E. Mc]SrALL. MAETIlSr HUNKLEY. [seal.] KITTIE HUNKLEY. [seal.] ^tate of lew M, \ ,, City and County of jNew York, j On this first day of June, in the year one thousand eight hun- dred and ninety-one, before me, the subscriber, personally appeared Martin Hunkley and Kittie Hunlcley, his wife, to me personally known to be the same persons described in and who executed the within instrument, and they severally acknowledged that they executed the saine. GEO. C. JONES, Notary Public. 140 BUSINESS LAW. The above mortgage is called a purchase money mortgage, because it is given to secure part of the purchase price of the land. It is not necessary for the wife to sign a purchase money- mortgage, although the execution of it by her, can do no harm. Additional Clauses. — We have seen that the requisites of a mortgage are substantially the same as those of a deed, except- ing as to the defeasance and power of sale clauses, and the statement of the terms of payment. There are three additional clauses which are sometimes inserted, however : (1) The inter- est clause, (2) the insurance clause, and (3) the tax clause. (1) The interest clause provides that if the interest is not paid when due, the entire mortgage debt shall become due, although by the terms specified in the mortgage the princijial might not- become due until long afterwards. (2) The insurance clause provides that the mortgagor shall keep the property insured and assign the insurance policy to the mortgagee, and if he fails to do this the mortgagee may effect the insurance and add the premium paid to the amount of the mortgage. (3) The tax clause provides that the mortgagor shall pay the taxes promptly, and if he fails to do so, the mortgagee may pay them, and add the sums paid to the amount secured by the mortgage. Bonds or Notes. — It is customary for the grantor at the time of executing the mortgage to execute either a bond or a, note of the same amount, to go with the mortgage. The bond or note represents the debt, and strictly speaking, the mortgage is given to secure the payment of the bond or note. The mortgagee may sue on the bond or note to collect his debt, or he may elect to foreclose the mortgage against the land. A bond, following an ancient form, is always made for twice the amount of the debt. That is called the penal sum or penalty. Form of the Bond. — Following is the form of the bond going with the above mortgage : BOND. gnow all ^m % \)xm ^xmnXr* That we, Martin Hunhley and Kittie Himhley, of the City of Neil) Yorh, are held and firmly lound unto Halton Davis of the Town of Brighton. 2^. Y., in the sum r CONTKACT. Article of agreement, made this first day of June, 1891, he- tween Franh P. Kelsey, of the city of Detroit, Michigan, owner, of the first part, and John A. Barhite of the same place, of the second part, Witnesseth, That, in consideration of the sum of five thous- and dollars {$50000), to te to him duly paid, the first parly hereby agrees to sell to the party of the second part, all that tract and parcel of land situated in said city and State, knoio7i and' described as block ten in Kelsey'' s addition to the city of Detroit, reference being had to a map of the said addition, filed in the- Register's office in said city, for the siim of five thousand dollars: {$6000), which the second party hereby agrees to pay to the first party as follows : One hundred dollars {$100) upon the execu- tion and delivery of this agreement, and the balance on or before the third day of September next ; and the piarty of the first part %ipon receiving such payment, at the time, and in the manner above mentioned, shall, at his own proper cost and expense, exe- cute and deliver to the party of the second part, a good and suffi- cient warranty deed of said premises, with official abstract of title, shoioing said premises free and clear of all incumbrances, and free from clouds on the title. It is agreed that the stipulations aforesaid, are to apply to, and bind the heirs, executors, administrators and assigns of the respective parties. In witness vihereof, the parties have hereunto set their hands and seals, in the day, and year, first above written. FRANK P. KELSEY (Seal). JOHN A. BARHITE (Seal). CONTRACTS FOR THE SALE OF LAND. 147 Other Conditions. — If the contract is to be recorded it must be witnessed, executed and acknowledged according to the laws of the State where it is to be -recorded. It may also contain any other peculiar terms or conditions which the parties may agree upon. The purchaser upon receiTing the contract may safely make payments upon it. If it is recorded his rights will be protected as against the seller or creditors of the seller, or as against future incumbrances. His risk lies in the fact that the seller may become bankrupt and unable to clear the in- cumbrances, if any, which are on the land when the contract is executed, or, for any other reason be unable to give good title. QUESTIONS. Page 144. — What agreements must precede a deed ? What is the result if the preceding agreements are not valid ? Why must they he in writ- ing ? Who must sign the writing ? What is a sufficient writing ? Page 145. — What is an insufficient writing 1 What is the usual defect in a contract by correspondence ? What is the effect of part payment of the purchase price ? What is the effect of a receipt ? When will a mere verbal agreement be enforced ? What are formal contracts for the sale of land called ? Page 147. — What is said regarding the acknowledgment and recording of land contracts ? LA^DLOED A.'ND TEI^AK'T. Leases, are grants of the use of real property. They convey, for the time or period for which they are given, an interest in real estate. The interest conveyed may be designated as the right to the exclusive possession of the land leased or granted for the time specified in the lease. A lease gives rise to the relations of landlord and tenant. The Parties. — There must be at least two parties to a lease. There must be an owner who leases or rents the land, and who is called the landlord or lessor, and there must be the person to whom the land is rented, who is called the tenant or lessee. There may be any number of lessors or lessees. The landlord, or lessor, must be a party competent to contract, although the land of an incompetent person may be leased by the guardian or by an order of the court. The tenant, or lessee, must also be a person competent to contract. The tenant agrees to do something, if nothing more than to pay the rent, and therefore must be competent to make an agreement. Formation of the Contract. — If the lease is for one year or less the contract of leasing may be made verbally. In law, a verbal contract, m cases where the contract may be made ver- bally, is always spoken of as a lease, although there is no writ- ing. If a lease is for more than a year, we have seen that in compliance with the statute of frauds, it must be in writing. There must be a written lease. In some States the statutes provide that a lease need not be in writing unless it is for more than three years. A A^erbal Lease. — In case a lease is made verbally, the agree- ment must be sufficiently definite to express the intentions of the parties, as to the time the land is to be leased, and the rent. If the rent is not specified the tenant is bound to pay what is a reasonable sum for the use and occupation of the premises. If the parties do not expressly agree upon the time of the lease, 148 LANDLORD AND TENANT. 149 or the period for -w^hich it is to continue, the law will usually presume that it is a lease from year to year. The landlord cannot remove the tenant until the expiration of the year. Leases in Writing, do not necessarily require a particular form of words. It is sufficient if they indicate the intentions of the parties. An ordinary form of lease is something like this : A Lease made and executed June 1, 1891, letween Clarencs H. T. Bly, of the town of Southold, New York, of the first part, arid Epher WhitaTcer of the same 'place, of the second part, WIT- NESSETH ; In consideration of the rents and covenants herein expressed, said party of the first part has demised and leased, and does herely demise and lease to the said party of the second part, all that tract and parcel of land situated in said town, known and de- scribed as Pine Neck and Old Orchard, consisting of about fifty (50) acres of land, more or less, in said town of Southold, in the county of Suffolk, in the State of New York, with the privi- leges and appurtenances, for and during the term of one year from the date herein, which term will end on the thirty-first day .of May, 1892. And the said party of the second part covenants that he will pay to the party of the first part, for the use of the-said premises, the annual rent of one hundred dollars {$100), to be paid in quarterly payments of tiuentyfive dollars {$25) each, to be paid at the Southold Savings Batik in said town. And, provided the said party of the second part shall fail to pay said rent, or any part thereof when it becomes due, it is agreed that the said party of the first part may sue for the same, or re-enter said premises, or resort to any legal remedy. It is agreed that the party of the second part, in addition to said rent reserved, shall pay and discharge the taxes and assess- ments levied upon said premises for school or highway purposes during said term. Tlie party of the second part covenants that at the expiration of said term he will surrender said premises to the party of the first part in as good condition as now, necessary wear and dam- aae by the elements excepted. 150 BUSINESS LAW. Witness the hands and seals of the said parties in duplicate, the day and year first above written. CLARENCE H. T. ELY (Seal). EPHER WHITAKEE (Seal). Kinds of Tenants. — The word tenant is deriTed from a Latin word tenere, meaning "to hold;" and tenants are divided into several classes according to the power or authority under which they hold or possess the property. They are (1) Ten- ants by sufferance ; (3) Tenants at will ; (3) Tenants from year to year ; (4) Tenants for years, and (5) Tenants for life. The holding of a tenant, having reference to its manner and author- ity, is called the tenancy. Tenants toy Sufferance. — They are tenants who hold over or remain in possession of the land after the expiration of their lease. The tenant at sufferance must have originally been in possession of the land by right and by lawful lease, although his holding possession after the expiration of his lease, is wrong- ful. In most States it is provided by statute that a tenant by sufferance is entitled to notice to quit or give up possession. Tenants at Will, are persons who lawfully enter into the possession of land, but for no definite term or period. They are subject to be jmt off at any time at the will of the landlord, and are therefore called tenants at will. The possession is always right and lawful, whereas the possession of a tenant by sufferance is wrongful. It is sometimes provided by statute that a tenant at Avill is entitled to notice to quit. Ordinarily he can be put off without notice, although he is entitled to the crops he may have planted. Tenants From Year to Tear, are those who have a lease for one year certain, and if they hold over after the expiration of the year they have a tenant's rights for another year. They are always entitled to notice to quit. It is important for both landlords and tenants to understand the result if the tenant does not move at the end of his year. By holding over he may secure the right to remain another year, or the landlord may compel him to pay the rent for another year. Tenants for Years, are quite similar to tenants from year to year. They are all persons who rent or lease land for some LANDLORD AND TENANT. 151 determinate period, and if the lease is only for half a year, or a quarter, or any less time, the lessee is regarded as a tenant for years. In any event, if an annual rent is paid, the tenant is a tenant from year to year. If no definite time is agreed upon, and the rent is not an annual rent, but is to be so much a week, month or quarter, the tenant is a tenant for years in law, although his tenancy may be weekly, monthly or quarterly. Tenants for Liife. — Eeference has already been made to this form of tenancy under the discussion of the interests in land. A tenant for life is entitled to the use and occupation of the land during his life time. In this connection the tenancy fre- quently arises from what is called a life lease. This is a lease in writing for the period of the life time of the lessee. He may or he may not pay rent. The Term of JJeases. — In addition to what has already TDeen said regarding the duration of leases attention should be called to the fact that the statutes sometimes limit the time for ■which leases may be giyen. In the State of New York, for instance, it is proyided by the constitution that no lease of agricultural land shall be made for a longer period than twelve years. The Rent, is the compensation paid by the tenant for the use of the land and the privilege of occupying it. If the lease, "whether verbal or written, specifies when and where it shall be paid it must be paid accordingly. If the lease is by the week, month or year, the rent is not due until the end of the week, month or year, unless it is expressly agreed that it shall be payable in advance. It is payable on the land unless it is ex- pressly agreed that it shall be paid elsewhere. The statutes of many States provide that if the premises are wholly or partially destroyed by fire or otherwise, there shall be an abatement of the rent accordingly. Where there is no statute on the sub- ject the tenant is bound to pay the rent to the end of the term of his lease, although he receives no benefit from the property. As already intimated if the parties have never agreed upon the rent to be paid, the tenant is bound to pay the reasonable rental value of the premises or what they will rent for at the time and place. 152 BUSINESS LAW, A Sub-Tenant, is a tenant or lessee holding a lease from a prior tenant or lessee. When a lease contains no covenant or stipulation against the sub-letting of the premises, a tenant in possession under it, may sub-let the whole or a part of the premises, to another. The person to whom he sub-lets is a sub-tenant. The premises cannot be sub-let to be used for a purpose inconsistent with the original lease. A tenant may also assign his lease and the assignee is virtually a sub-tenant. If the premises are sub-let for a wrongful purpose, or a pur- pose inconsistent with the original lease, the landlord may restrain the tenant or sub-tenant from using or occupying the premises for any other purpose than that originally contem- plated. It IS customary in cases where the landlord does noii sanction sub-letting by his tenant, to insert in the lease a clause to the effect that no part of the premises shall be sub-let, and that the lease shall not be assignable, and fujther, that the lease shall become void if the tenant assigns it or sub-lets. If such a condition is not made part of the contract, however, the tenant may always sub- let the premises or assign his lease, whether the lease is verbal or in writing. Conveyance During the Lease. — The landlord may always' sell or mortgage the premises during the term of the lease, unless the contract of leasing contains a condition to the con- trary. The conveyance, however, is subject to the tenant's rights. A sale cannot effect his right to possession. He holds until the expiration of his lease, although the ownershij) of the property has changed. If the property is encumbered by mortgage, however, at the time the lease is made, the tenant's rights are subject to the mortgagel If the landlord fails to pay the mortgage, and it is properly foreclosed, the lease is forfeited. The tenant may be put off by the purchaser at the mortgage sale. The tenant has a right of action, however, against the landlord for damages. Kenioval of the Tenant. — If the tenant fails to pay the rent agreed upon, there is a method usually provided by statute whereby the landlord can summarily remove him from the premises and annul the lease. If the tenant is entitled to notice to quit, that must be given, or the rent must be de- LANDLORD AND TENANT. 153 manded before the landlord can commence proceedings to recover possession. It used to be the custom, both in England and the United States, to allow the landlord to seize the per- sonal property o£ the tenant which might be on the premises, in payment of the rent. This was called distress for rent. It is seldom allowed now. Notice to Quit. — "We have seen that there are circumstances under which a tenant in possession of land is entitled to notice to quit before he can be ejected by process of law. The statutes frequently define what shall constitute a lawful notice, and how it shall be given. It is best to have the notice m writing, and to have it so drawn that it requires the tenant to remove from the premises within a period corresponding to the period of the lease. If the lease is by the week or month, a week's or a month's notice is ordinarily required. The following is an ordinary form of notice : NOTICE TO QUIT. To John Doe, tenant ; tahe notice that you are herely required to surrender possession of the premises now occupied 'by you at No. 65, on the southerly side of Magnolia A venue, in the town of Arcadia, and I demand possession of said premises. Dated June 1, 1891. Eichabd Eoe, Landlord. At the expiration of the proper time, after the service of the notice, the landlord may commence the proceeding at law to remove the tenant. ^Waste, is a permanent injury to the property, committed by the tenant, such as the cutting down of growing timber, the tearing down of fences, the removal of partition walls in a house, or the removal of doors or windows. It is also waste if the tenant without committing any act on his part, passively allows the fences and buildings to fall down or decay, except- ing through natural wear and damage by the elements. If he permits the natural condition of the premises to change in character, contrary to the dictates of good husbandry, he is guilty of waste. A common instance of waste is the occurence of fires negligently started by the tenant or his servants. In 154 BUSINESS LAW. case a tenant is guilty of -waste, the landlord may sue him for damages or resort to the courts for an injunction restraining him from a further commission of it. Repairs. — JSTothing more frequently gives rise to disputes between landlords and tenants than the question of repairs. There is much popular misapprehension as to the law of repairs. When leases are made, the parties seldom go sufficiently into details as to provide by whom, and how, repairs shall be made. The general rule is, that the landlord is not bound to make repairs unless he expressly agrees to do so at the time the lease is made. But the rule does not stop here. If nothing is said regarding repairs, and no agreement reached, the tenant is usually bound to make ordinary repairs, such as putting up fences, or replacing or repairing doors or windows which are broken, or become out of repair during the tenancy. As the law books say, the tenant is bound to "keep the premises wind and water tight." But the tenant is not liable for the ordinary and natural wear of the premises. He is not bound to repair damages caused by the elements, without his fault. He is not bound to renew materials worn through natural decay. He is bound to so use the property as to make future repairs unnec- cessary, as far as possible, but his liability does not extend to damages arising from accident. Moreover, a tenant cannot stop paying rent so long as he occupies the premises, no matter what state of disrepair they are in. He may remove, and annul the lease if the premises become untenantable without his fault, and by reason of disrepair which he is not bound to remedy. Generally, however, so long as he continues in pos- session he must pay rent, ff the landlord, however, is under agreement to make repairs, the tenant can enforce that liability by offsetting damages against the rent. If the tenant expressly agrees to make repairs, or as it is frequently put in the lease "to keep the premises in repair" he is bound to do more than in case nothing is said about repairs. If the premises are new and in good condition when the lease commences, the tenant IS then bound to keep them in as good condition, although he is not charged with the duty of replacing buildings destroyed by the elements. If the premises are old, the tenant is not LANDLORD AND TENANT. 155 necessarily bound to restore tliem to an improved state, but must keep them in substantial repair. It will be seen, there- fore, that the liability to repair falls generally on the tenant, and that the landlord is bound to do nothing unless he has made his agreement to repair. Eviction, is any actual expulsion of the tenant, or disturb- ance of his possession during the term of the lease. The ten- ant has an absolute and exclusiTS right to the possession and enjoyment of the land. He must not be disturbed in that possession. If he is disturbed so as to compel him to abandon the premises, it amounts to an eyiction. Eviction may, there- fore, be actual or constructive. Actual Eviction, is the forcible removal of the tenant from the premises by the landlord, or by any one acting under the landlord's authority. Constructive eviction is the intentional disturbance of a tenant's possession by the landlord or by any one acting under the landlord's authority, whereby the premises become untenantable, or the tenant is compelled to abandon them. The Kesult of an Eviction, is to suspend the rent. It ■does not forfeit the rent already due at the time of the evic- tion, nor IS the rent forfeited if the tenant remains in posses- sion in case of constructive eviction. He may off-set his dam- ages against the rent, but if he continues to occupy the prem- ises, although he might abandon them on account of tlie con- structive eviction, he must pay the rent. QUESTIONS. Page 148. — What are leases, and who may be parties to them ? When must a lease be in writing. When may it be verbal ? Page 150. — What is a tenant by sufferance ? At will ? From year to year ? Page 151.— What are tenants for years, and for life ? What is rent, and how is it payable ? Page 152. — What is a sub-tenant, and what is sub-letting ? How may a tenant be removed ? Page 153.— What is waste ? Page 154. — When must a tenant make repairs, and when a landlord ? Page 155. — Distinguish between actual and constructive eviction ? FIXTTJEES. Definition. — Fixtures are articles of a personal nature which, have been affixed to land. Before becoming affixed to the land they are personal property. After becoming affixed to the land they cannot be removed, but are a part of the land, and go with it when it is sold or leased. All articles are fix- tures which are so annexed to the land, and connected with it, as to be incapable of removal without injury to the land or buildings. A pump in a well, a fence, a heating furnace, boilers, machinery, chandeliers, gas fixtures, store shelving, are common instances of fixtures. A Grantee's Fixtures. — A question of what constitutes a fixture may arise between a jierson selling and a person pur- chasing land, or it may arise between a landlord and a tenant. The grantee of land is entitled to all the articles which have become fixed to it, or to the buildmgs, so as to be permanently and habitually attached. He is entitled to anything which is a component part of the land, or which is a part of the build- ings, for the purpose for which they are designed, and without which they would be imperfect, or incomplete for the use for which they are designed. The fact that the articles can be removed without injuring the land or buildings is not control- ling. A j)ortable furnace in the cellar, may be easily removed. It may have no permanent attachment to the house, and yet if it was i)ut there with the intention of making it a part of the house, and without it the house would be incomplete, as if there was no other method of heating, the furnace would be a fixture, and would go with the house on a sale. If the seller of land desires to take away articles of the nature of fixtures, the safe and projjer course is to have an agreement to that efliect, and have the right to remove the articles reserved in the deed, providing they are not removed prior to its delivery. 156 FIXTURES. 157 A Tenant's Fixtures. — The law is more liberal in allowing a tenant to remoYe articles of the nature of fixtures, which he has himself put upon the premises. Of course, he has no right to remoTe anything which was there when he took possession. When a tenant makes improvements of a permanent character Tvithout the knowledge or consent of the landlord, they ordi- narily become fixtures which he has no right to remove. If the tenant makes improvements, however, with the landlord's consent and authority, the presumption is that the tenant is to liave the benefit of them at the expiration of his term. Locks, keys, shutters and doors and other such things put up by the tenant for the security of the premises, ordinarily belong to the landlord and must be left in place, if the premises would lae left in an insecure condition by taking them away. The Intention of the Parties, has much to do in deciding -whether an article is a fixture. For instance, if the owner of land, or a tenant, makes an improvement or erection with the intention of making it a part and parcel of the land, and of permanently employing it in the use of the land or buildings, that intention will be operative in causing the erection or im- provement to be a fixture. It is quite as material as the manner in which the article is fastened. Landlord's Fixtures. — All improvements or additions made by the tenant during his lease, which the tenant has no right to remove, belong to the landlord. Leases of business property frequently provide that all improvements or additions made by the tenant shall remain on the premises and become the property of the landlord. QUESTIONS. Page 156.— What are fixtures ? "What are a grantee's fixtures ? Page 157. — What are a tenant's fixtures ? What are landlord's fix- tures ? How does the intention of the parties afEect the question of Axtures 1 J^UISAITOE. Definition. — A nuisance is anything that annoys or incom- modes a person in the enjoyment of life and property. Every man is entitled to enjoy life, and enjoy the use of his property without any unlawful restraint or inconvenience. Every man is entitled to light, to pure air, to pure water, to freedom from unusual and unnecessary noise. Anything which infringes upon these rights is a nuisance. Using One's Own Property. — It follows that a man cannot use his own property so as to unreasonably injure the property of his neighbor by rendering it less habitable and enjoyable. He cannot conduct any business on his own property which creates unusual smoke, or noisome smells, or unusual noises. Instances of Nuisance are forges or noisy workshops, soap factories, dye houses, lime-kilns, tanneries, hog-stys, cesspools, the construction of a cornice or water spout so as to cast aa unnatural quantity of rainwater into a neighbor's building or on his land, the corruption of a brook or water course by de- positing foul substances in it. The only condition is that these things result in a permanent, substantial and material damage and injury to the use and enjoyment of the adjoining property, or the enjoyment of life there. Nice Sensibilities. — Every disagreeable noise or annoyance does not constitute a nuisance. The wellfare of mankind de- mands that certain kinds of business shall be prosecuted, although productive of some annoyance. The question, there- fore, is not whether the thing is an annoyance to people of extraordinarily fine sensibilities, but does it materially disturb the quiet and repose, or substantially interfere with the com- fortable enjoyment of the neighboring premises by people of ordinary tastes and sensibilities. Substantial Damage. — The thing complained of must be a substantial injury to the enjoyment of life and property. For 158 NUISANCE. 159 instance, the inhabitants of a great city must expect to sufEer the consequences which come from the ordinary bustle and noise incident to ordinary business pursuits, conducted in an ordinary and usual manner. Such things become nuisances when they are conducted in such an extraordinary manner as to render life physically uncomfortable, or materially injure property. Smoke from a factory may be a nuisance if unusual quantities of soot are deposited on the adjoining property, or the health of the occupants materially affected. Public and Private Nuisances. — If the nuisance is injuri- ous to a large number of people, to a neighborhood or commu- nity, it is a public nuisance, and may be repressed by the public authorities, although any one especially injured may do so. A thing which injures only a particular piece of property, or in- terferes with the material enjoyment of life there, is a private nuisance. Kemedies. — The person who authorizes or maintains a pub- lic nuisance may be indicted and punished as for a crime, or any person who is especially injured by it may have an action for damages, or injunction to restrain its further maintenance. In case of a private nuisance there is always an action for dam- ages, or for restraining it, by the individual injured. QUESTIONS. Page 158. — What is a nuisance ? How must a man use his own prop- erty ? Give some of the instaaces of nuisance. To what extent must the enjoyment of life and property be afEected in order to constitute a nuisance ? Page 159.— Distinguish between public and private nuisances. What are the remedies against a nuisance ? HIGHWAYS. Definition. — A highway is any thoroughfare used by the public generally, whether it be a carriage-way, a horse-way, a footway or a navigable riyer. It is not a private way used by one or two persons for particular purposes and on which only certain persons have the right to pass. As the old English books say, it is a thoroughfare " common to all the king's sub- jects." It is used by any one and every one who may have occasion to pass over it. Establishing of Highways. — Highways are usually estab- lished (1) by deed, (2) by dedication, (3) by prescription, (4) •or by being opened and laid out according to statute. Highways by Deed. — The owner of land who is willing to have a highway over it, whether for the benefit which will arise to himself, or from the desire to accommodate the public, may execute a deed of the land, to the city, town or village in which it is located, to be used for the purpose of a public highway. The -city, town or village is the grantee. If the grantee accepts the deed, the land thenceforth becomes a public highwa}-, for the use of the pubhc at large, and the grantee, which as we have seen is a kind of corporation, owns the soil for the use of the public. By Dedication. — A dedication of land for the purpose of a highway is a voluntary donation by the owner of the land fol- lowed by an acceptance on the part of the public. A dedication diiiers from a deed in that it need not be in writing. More- over, in case of a deed oi land for a highway, the grantee secures the ownership of the soil. In case of a dedication, the soil remains the property of the owner. He simply donates the right to use it for the purposes of a highway. If the owner of a tract of land cuts it up into lots and streets, and causes a map, showing the lots and streets, to be filed in the usual pub- lic office, he thereby dedicates that portion of the tract laid out on the map as streets. The act of the owner in filing the map 160 fflGRWArS. 161 must be followed by an acceptance on the part of the public. The public must signify its acceptance by using the street. If the acceptance does not follow, and the street is not used or worked for a reasonable length of time, a dedication does not result, and the owner may enclose it, and thereby recall or re- voke the dedication. An owner of land may dedicate land for a highway, by himself laying it out, grading it and enclosing it with boundary fences, or by any act of his whereby he evinces a willingness to dedicate it to the public use. Highways Iby Prescription. — Under the discussion of title to real estate it was stated that a man might acquire title by twenty years use and occupation. It is called title by prescrip- tion. In the same way the public may acquire a right of thor- oughfare by long continued use of land for highway purposes. The land so used in time becomes a public highway. The owner of the soil cannot close it or obstruct it. If an owner of land does not wish to have a highway established upon it, he must not acquiesce in its use by the public. He must take active measures and means to prevent the public passing upon and crossing it, otherwise after a lapse of time, usually twenty years, it will be presumed that he has dedicated it and he will then be unable to enclose it. Higliways Laid Out by Statute. — In nearly every State there is a statute for the laying out of highways. It is pro- Tided that if a highway is needed at any particular point the officers charged with the duty may have a jury of the inhabit- ants summoned. If the jury decide that a highway is needed it may assess the damages to be paid to the owner of the land. Ownersliip of the Soil. — It will be seen that in none of the instances of the formation of highways just specified does the owner of the land lose his ownership of the soil of the highway, except in case of highways by deed. In each of the other in- stances the owner of the land through which the highway runs owns the soil itself of the highway. His ownership is subject to the public right of passage and use. If the highway is abandoned, or closed, the soil reverts to the owner. Even in case of a highway by deed, the soil may revert to the original •owner, if the highway is discontinued. 11 L 162 SUSTNIISS LAW. Closing of Highways. — The lav is tenacious of the rights of the public to the use of a highway, and when a highway is once established it cannot be closed except by process of law. There is in each State, usually, a statute providing a method by which a highway may be discontinued or closed, proTiding it is no longer needed. As in case of laying it out, it is closed by a decision of a jury of the inhabitants. Conveyance of Highways. — We have seen that the original owner of the land may own the soil of the highway, subject to the public use. He may, therefore, sell and convey the highway, subject to the public use. It is important to know, therefore, when a deed of land includes the highway on which it fronts. If the land deeded lies on both sides of the highway or street,. and the boundaries used m the description, include the high- way, the deed will convey the highway. It may be said gen- erally, that a deed of land includes the highway on which it fronts, unless the wording indicates a contrary intention. In all cases where a deed bounds land "on," "upon," "by" or " along " a highway, the deed includes to the centre of the highway. If the deed, however, bounds the land by the " line" of the highway, it does not convey any part of the street. A deed of a lot describing it by its number with reference to a map, does not usually convey to the centre of the street on which the lot fronts. If the grantee in a deed does not get title to any part of the street, he simply has the right to use the street as a means of access to his property, or the same right to use it as the public at large. On the other hand, the owner of the soil of the highway has an absolute right to use it for his individual purposes, so long as he does not hinder or obstruct the public use. He may prevent or restrain any ap- plication or use of it not properly pertaining to a highway, such as the laying of a street-railway track, or the erection of buildings or structures upon it. He may restrain the removal of shade trees upon it, provided they do not interfere with the public use. If the owner of adjoining land does not own the soil of the highway he cannot object to any use of it by the public, or by individuals, unless such use materially interferes with the access to his adjoining property. HIGHWAYS. 163 Obstructions in Higliways. — Highways being for the use and accommodation of the public, any obstruction which inter- feres with the free use of the whole road is unlawful. It is immaterial that only a part of the road is obstructed, and that travelers may pass along the other side,— they are entitled to the free and undisturbed use of the whole. N"o one has a law- ful right for instance, to use the highway for the purpose of loading or unloading goods ; for the erection of a booth or any object calculated to frighten horses, or for the purpose of de- positing building materials or goods. No one has a right to make any excaTation in the surface, or beneath a highway, or overhang an awning or other structure. If such unauthorized use of the highway infringes the public right of use, it is a public nuisance, and may be punished by the public authorities. Any individual who is especially injured may restrain the en- croachment or may sue for damages. The Liaw of the Boad. — It is the rule in this country that vehicles meeting on the highway must turn to the right. In England and in some other countries the rule is to turn to the left. Each vehicle is entitled to one half of the traveled portion of the road. The driver of a vehicle has no right to obstruct the passage of another vehicle, going in the same direction at a greater rate of speed. Vehicles of every description must be driven with that care and caution which the condition of the highway and the number using it, demands. "Vehicles Having a Eight to the Highv^ay. — It is now a settled rule that a bicycle is a vehicle and the rider has the same right to enforce the law of the road, as in case of any of the well known kinds of vehicles. A person may go upon the highway with any form of vehicle used for the transportation of goods or passengers and demand his lawful right to the reas- onable use of the highway. He may take a self-propelling or traction engine upon it if he chooses, although in such case he does so at the risk of paying damages for injuries which he may cause, providing the engine or such other object as he takes upon the highway, is an unusual or extraordinary object, and calculated to frighten horses. Eepalr of Highways. — A person who owns land adjoining 164 BUSINESS LAW. a highway is under no obligation to repair a defect which may arise in it, and is not liable for a state of disrepair, unless caused by his own act. By the common law there is no obli- gation resting upon individuals or the public autliorities to keep higliways in repair. The duty is regulated by statute. The highway statutes of eacli State impose the obligation upon the town, city or village in which a highway is located, to keep it in a proper state of re^Dair. For a failure to perform its duty, or for a failure of the highway commissioners or other proj)er officers to perform their duties, the town, city or village is lia- ble for damages to any one injured. The general rule, there- fore, is this : it is the duty of every town, village or city in which a highway is located, to keep the same in a proper state of repair, and in a reasonably safe condition for all who may have occasion to use it in an ordinary and usual manner. Tlie obligation does not extend to the use of the highway for extra- ordinary loads or burdens. For instance, if a culvert or bridge on a country highway goes down under the weight of an ele- phant, passing with a menagerie, tlie town is not liable, pro- Tiding the bridge was in a reasonably safe condition. Vehicles and Pedestrians. — The relative rights of vehicles and pedestrians in a public highway, or city street, is a fre- quent matter of dispute and is frequently misunderstood. The invariable rule is that each has equal rights. Each is bound to exercise that degree of care and prudence which the circum- stances of the case demand. Vehicles cannot rush along re- gardless of pedestrians, nor can pedestrians demand that vehi- cles give way to them. The obligations are mutual. It is the duty of drivers to turn aside or stop their teams to avoid in- juring people who may be crossing the street. At the same time, it is the duty of a pedestrian to look in either direction for approaching teams, and to use ordinary care and prudence in avoiding them. If a pedestrian makes a mistaken estimate as to his ability to cross in front of an approaching team, and is injured by reason of his mistake, he cannot recover damages. Pedestrians are under the same obligation to watch for street cars, and street car drivers are in duty bound to exercise the jsame degree of care to avoid pedestrians. HIGHWAYS. 165 Vehicles and Street Cars. — The law of the road which, as we have seen, requires Tehicles meeting each other, to pass to the right of the center of the traveled road and to use ordinary care and caution in passing, does not apply to vehicles meeting street ears. A vehicle is bound to give the street car the right of way, as the track is set apart for the exclusive use of the car. But on the other hand, a vehicle meeting a car may turn, either to the right or to the left, and if a collision occurs, the mere fact that the driver of the vehicle turned to the left in- stead of the right, will not afiect the case. It is held that the driver of a vehicle on a street car track must be constantly on the look out for the coming of a car, and that it is his duty to turn o3 the track upon the approach of the car. Rate of Speed. — Vehicles or street cars cannot be driven at an immoderate rate of speed. Immoderate speed imposes an obligation to pay damages for injuries to others, although the injured person may have been negligent. If a collision occur between vehicles where each has been negligent, the injured party is not entitled to damages, unless the accident could not have been averted by him by the exercise of ordinary care. Every person using a street, whether as a pedestrian or as the driver of a vehicle, has a right to expect from others, ordinary care and prudence. He may rely upon the fact that every one is supposed to' exercise that care in determining his own man- ner of using the road. QUESTION'S. Page 160. — What is a highway ? Define highway by deed. By dedi- cation. Page 161. — ^Define a highway by prescription, A highway by statute. Who is the owner of the soil of highways ? Page 163. — How are highways closed ? When does the grantee of land on a highway get title to the center ? What are the rights of the owner of the soil of a highway ? Page 163. — What are unlawful obstructions in highways? What vehicles have the right of way ? Upon whom does the obligation to re- pair a highway rest ? Page 164.— What are the relative rights of vehicles and predestiians ? Page 165 — What are the relative rights of vehicles and street cars 2 What is said in regard to the rate of speed in highways ? DEFII^ITIOI^S. Abandonment. la marine insurance, the giving up of property partly destroyed, by the owner to the insurer. Abatement of a Nuisance. The remedy which the common law allows a party injured by a nuisance, of destroying or forcibly removing it, so long as he occasions no damage beyond what the abatement neces- sarily requires. Abatement Among Legatees. The proportionate reduction of lega- cies, where the estate bequeathed by a will is not sufficient to pay all legacies in full. Abjuration of Allegiance. The declaration under oath required of every alien before naturalization, renouncing all allegiance to any other sovereign. Absolute Conveyance. A transfer of property free of any condition or reservation. Abutting'. Bordering upon. Lands bounded by a highway or fresh water stream abut on the stream or road, and the owners are called abutting owners. Acceptance. In mercantile law : (1) The act by which the person upon whom a bill of exchange or other order is drawn, engages to pay it. (2) The bill after it has been accepted. Acceptor. One who accepts an order, draft, or bill of exchange. Accommodation Paper. Commercial paper for which no consideration passed between the original parties. Accord. Agreement. Account Stated. An account balanced and rendered, and assented to by the parties although not paid. Acknowledgment. The act by which a party who has executed an in- strument declares or acknowledges it before a competent officer to be his or her act and deed. Action, The formal means of recovering one's rights in a court of jus- tice — a suit. Act of God. Any accident produced by a physical cause which is irre- sistible, such as lightning, tempest, etc. Ad Valorem Duties. Customs duties imposed upon imported articles according to either the value or the actual cost. Adjudication. The act of a court In giving judgment in suit or con- troversy. Admeasurement of Dower. The setting apart for the use of the widow of such a portion of land as will amount to her dov"»r or "third;" called also assignment of dower. 166 DEFINITIONS. 167 Administrator. One who administers on the property or estate of a person dying intestate, and is accountable for the same. Affldarit. A statement in -writing, signed by the person making it, called the affiant, and sworn to before a notary public or officer authorized to take oaths. Affinity. Relationship by marriage. Affreightment. The hiring of a ship for the conveyance of goods. Agency. The relation existing between two parties, by which one is authorized to do certain acts for the other, with other parties. Agent. Any person who is employed by another to do any act for the employer's benefit or account. Age of Consent. The age at which infants are capable of making a valid contract of marriage. Alien. One born out of the jurisdiction of the United States and owing allegiance to a foreign sovereign. Alien Enemy. An alien who is the subject of a hostile power. Alimony. An allowance made to a wife out of her husband's estate during a suit for divorce or separation, or at its termination, for her life or for a shorter period. Alteration. The changing of the words or figures of a written instru- ment by the holder after it has been executed and delivered. If the change is not sufficiently material as to mislead anyone, it is not usually called an alteration. Amotion. Removal of an officer of a corporation. Ante-dated, Dated at a time earlier than the actual date. Annulment. The act of making void. Appurtenance. In a deed or lease, anything which will go with the land, as a right of way or a yard which has always been used with it. Arbitration. The investigation and determination of a cause or matter in controversy by an unofficial person, or arbitrator. Arbitrator. A disinterested person selected by parties in dispute to decide the controversy. Articles of Copartnership. The written agreement by which a copart- nership is formed. Assault. An illegal and forcible attempt or ofEer to do a bodily harm to another. Assent. Act of agreeing to anything; consent. Assets. Property available for the payment of debts. Assignee. The person to whom the failing debtor transfers all his re- maining property for the purpose of having it distributed among his creditors ; one to whom anything is assigned. Assignment. A transfer by a failing debtor of his property to an assignee. A transfer by one person to another of any property, personal or real. Assignor. One who assigns property. Assurance and Assured. Same as Insurance and Insured. 168 BDSIJfJi-SS LAW. Attachment. The seizure of a clefendant's property by legai process^ in order to satisfy any jv.dgment which may be rendered against him in the suit. Attorney in Fact. An agent appointed by power of attorney. Award. The decision of arbitrators. Bailment. A delivery of goods in trust upon a contract, express or im- plied, that the trust shall be faithfully executed on the part of the bailee. The bailor is he who delivers; the bailee, he to whom delivery is made. The hire of personal property, of services, of custody and of carriage are species of bailments. Banlc Bill. A written promise to pay to the bearer on demand a certain sum of money, issued by a bank and used as money. Bank Note. Same as Bank Bill. A note payable at a bank. Bankruptcy. The condition of one who is unable to pay his debts. Bargain. A common synonym of contract. Barratry. Any breach of duty committed by the master of a vessel or the seamen, without the consent of the owner, by reason of which the ship or cargo is injured. Barter. To trade by exchange of goods, in contra-distinction from trading by the use of money. Battery. An unlawful assault committed by one person upon another. Beneliciary. (1) In life insurance, the person to whom a policy is made payable. (2) The person for whose benefit another holds the legal title to real estate. Betterments. Improvements made to real estate which render it better than mere repairs. Beyond Seas. Denotes absence from the country, and generally held to mean absence from the particular State. Bigamy. The wilfully contracting a second marriage while a husband or wife is still living. Bill of Exchange. A direction in writing, by the person who signs it, ordering the one to whom it is addressed to pay a third person a definite sum of money at a specified time. Bill of Lading. A document delivered by a carrier to one sending goods by him, acknowledging that they have been received by him for trans- portation to a certain place. It is both a receipt and a contract. Bills Receivable. Notes, drafts or other securities for money, which a merchant holds. Bill of Sale. An agreement in writing by which one person sells his interest in personal property to another. Blank Indorsement. One in which no particular person is named as the one to whom payment is to be made. It consists of the indorser's name alone. Blockade. The closing of communication with a port or place by hostile forces. DEFINITIONS. 169 Body Corporate. A corporation. Bona Fide. In good faith, as distinguished from Mala Fide, in bad faith. Bond. A written and sealed instrument by which one agrees to pay to another a certain amount of money, unless something else specified therein is done. Bonus. An additional premium paid for the use of money beyond the legal interest. Bottomry Bond. An obligation given for a loan upon a vessel and accruing freight. Bought and Sold Note. A written memorandum of sale, delivered by a broker effecting a sale, to the buyer. Breach. In the law of contracts, the violation of an agreement or obligation. Bribery. Eeceiving or oflEering a reward to affect the conduct of a public officer. Broker. One engaged in negotiating contracts for the purchase or sale of property in which he has no interest. Bullion. Any kind of gold or silver in the mass or lump. By-Bidder. A person employed to bid at auctions in order to raise the price of articles to be sold. By-Laws. The private laws or regulations made by a corporation for its own government. Cancellation. The manual act of erasing or destroying a writing. Capita. By the head. Capital Stock. The fund or property, as a whole, contributed or sup- posed to have been contributed to a corporation at its organization, as its property. Caveat. In the patent law, a notice from an inventor not to issue a patent of a particular description to another. Caveat Emptor. Latin phrase, meaning "let the purchaser beware," and applies to a case in which the thing sold is before the buyer and he examines it. Certificate of Deposit. A certificate issued by a bank or banker, show- ing that a certain sum of money has been deposited there, payable to a certain person, or to his order, or to the bearer. Certificate of Stock. A certificate given by the proper officers of a cor- poration, showing that a certain person owns a certain number of shares of the capital stock. Certification (of check). The signature of the proper officer of the bank written across its face, sometimes with and sometimes without the word "certified," or " good." It is a recognition of the check by the bank as good in two particulars, viz. : (1) That the drawer's signature is genuine, and (2) that he has that amount of money in the bank. Charter. (1) A special act of legislature creating a particular corpora- tion. (2) To hire or let a vessel or part of it. 170 BUSIN'ESS LAW. Chartered Ship. One let wholly or in part. Charter Party. The written instrutaent by whicli tlie owner of a vessel lets it, or a part of it, to another. Chattel Mortgage. A conditional sale of personal property, one which is to become void if a certain thing happens. Chiefly used as a se- curity for the payment of money. Chattel Real or Keal Chattel. An interest connected with real estate, as a lease. Chattels. Commonly means goods of any kind, or every species of per- sonal property. Check. A written order for money drawn upon a bank or banker, and payable immediately. Chose in Action. A thing of which one has not the possession, but only a right to demand it by action at law. Chose in Possession. Personal property of which one has the actual possession. Civil Law. The system of law of ancient Kome, Civil Remedy. The method of redressing an injury inflicted by one person upon another. Clearing House. An office where bankers settle daily with each other the balances of their accounts. Codicil. Some addition to, or qualification of a will, executed after the will. Collateral. Property pledged as security for the performance of a contract. Common Carrier. One who, as a business, undertakes for hire to trans- port from place to place, passengers or goods of all who choose to employ him. Common Law. The unwritten law as distinguished from written or statute law. The old law of England that derives its force from long usage and custom. Common Seal. The seal of a corporation. Compact. An agreement between parties similar to a contract. Competency. The legal fitness of a witness to give evidence on the trial of an action. Composition Deed. An agreement between an insolvent debtor and his creditors by which upon payment to each of some fixed proportion of his claim, they all agree to release the debtor from the balance of their claims. Compromise. An agreement between a debtor and his creditors, by which they agree to accept a certain proportion of the amounts due, and discharge him from the remainder. Concurrent. Existing together. A consideration is concurrent when the acts of the parties are to be performed at the same time. Condition Precedent. An act which must be performed by one person before another is liable, or in order to make him liable. DEFINITIONS. 171 Coiiflrmation. The ratification of a contract which was voidable, where- by it is made valid. Conflict of Laws. The difference between the laws of two or more States. Confusion of Goods. A mixture of the goods of two or more persons so that they cannot be distinguished. Consanguinity. Relation by blood. Consent. A concurrence of the wills of two or more contracting partiDs. Consideration. The reason or inducement in a contract upon which the parties consent to be bound. Consignee. One to whom merchandise, given to a carrier by another person for transportation, is directed. Consignment. The goods shipped through a common carrier by the consignor to the consignee. Consignor. One who gives merchandise to a carrier for transportation to another. Contract. An agreement between two or more persons to do or not to do a particular thing. Conversion. An unlawful exercise of ownership over goods or personal property belonging to another. Conveyance. (1) The act of carrying by land or water. (3) The means of conveyance. A written instrument by which an estate in land is transferred from one to another. Copartnership. Same as partnership. Corporation. An artificial being or person endowed by law with the capacity of perpetual succession, and of acting in certain respects like a natural person. When it consists of one individual it is termed a corporation sole, and when composed of a collection of several individuals it is called a corporation aggregate. Copyrigllt. The exclusive privilege secured from a government foi printing, publishing and selling copies of writings or drawings. Counter-claim. Same as Set-off. Course of Exchange. The current price of bills of exchange between two places. Covenant, Any promise contained in a sealed instrument. The person to whom the promise is made is the Covenantee. The person malting the promise is the Covenantor. Coverture. The legal state and condition of a married woman. Criminal Eemedy. The method of punishing a wrong-doer for some wrong committed by him against society. Curtesy, The estate a man has in the lands of his wife upon her death, in case a living child has been born to them during their marriage. Damages. Compensation in money to be paid by one person to another for an injury inflicted by the former upon the latter, or for the failure to keep a contract. 17a BUSINESS LAW. Day. Twenty-four hours. An entire day. Days of Grace. Days (usually three) allowed by custom for the payment of bills and notes beyond the day expressed for payment on th& face of them. Declaration of Intention. The act of an alien who goes before a court of record and formally declares his intention to become a citizen of the United States. Dedication. An appropriation of land made by the owner to some public use, usually for a highway, and accepted for such use by the public. Default. Omission; neglect or ftiilure. Defeasance. An instrument which defeats the effect of another instru- ment. If it is in the same deed it is an addition; if by itself, it is a defeasance. Defense. The answer made by the defendant to the plaintifE's action, by demurrer or plea at law. Delivery, The transfer of a written instrument from the person execut- ing it, or the grantor, to the person entitled to receive it, or the grantee. Demand. Presentment for payment. Demurrage. The allowance to be made by the shipper to the vessel owner as damages for detention of the vessel beyond the time specified in the charter party. Deposit. A bailment or delivery of goods to be kept and returned with- out recompense. Deposition. The testimony of a witness reduced to writing to be used in court. Descent. Inheritance of real property. Deviation. In the law of marine insurance, a voluntary departure without necessity from the regular course of the specific voyage insured. Devisee. A person to whom real property is devised or wUled. Disability. Want of qualification; incapacity to do a legal act. Disafftrinance. The annulling or cancelling of a voidable contract. Discount. (1) The taking of interest in advance. (2) A deduction from a price asked, or from an account, debt, or demand. Disfranchisement. Expulsion of a member from a corporation. Dislionor. The non-payment of negotiable paper when it is due. Distress. The taking of personal property to enforce the payment of something due, as rent. Distribution. The division among those entitled, called the next of kin, of the personal property of one dying without a will. Divorce. The separation of husband and wife by the sentence of the law. Dollar. The money unit of the United States. Domestic Relations. The relations of the members of a household or famii^' DEFINITIONS. 173 Domicile. The place where a man has his permanent home, and to which he intends to return if absent. Dower. The right of a widow to the use or ownership of some portion of the real estate owned by her husband. Draft. Same as bill of exchange. Drawee. The person upon whom a bill of exchange is drawn, who is directed to make the payment. Drawer. The person who draws or malses a bill of exchange. Duress. Personal restraint or compulsion. Easement. The right to use another's land. Effects. All kinds of personal property. Ejectment. A form of law suit to regain possession of real property. Embezzlement. The fraudulent removal or secretion of personal prop- erty by one who is intrusted with it. Emblements. Growing crops of any kind produced by expense and labor. Embracery. The attempt to corrupt or influence a jury. Eminent Domain. The right of the sovereign power to take private property to public purposes. Enact. To make a law or to establish by law. Equitable Estate. An interest in land not evidenced by a deed, but of which a Court of Equity will take notice. Equity of Eedemption. The right which a mortgagor has to redeem his estate after the mortgage has become due. Escheat. The reverting of land to the State upon the death of the owner without lawful heirs. Escrow. A deed or bond delivered to a third party to be held and de- livered to the grantee or creditor upon the performance of some condition. Estate. An interest in real property. Estate by Curtesy. See Gwtesy. Estate for Life. An interest in land for life. Estate in Fee-Simple. The interest which a man or his heirs have in land without end or limit. Eviction. The forcible removal of a tenant from land leased by him or the doing of any act by the landlord which deprives the tenant of the of the use of the land. Executed, (of a contract). Finished. Execution. (1) A written command issued to a sheriff or constable, after a judgment, directing him to enforce it. (3) The act of signing and sealing a legal instrument, or giving it the form required to make it a valid act. Executor. One to whom is committed the execution or carrying out of the terms of a will. Executory (of a contract). Unfinished. 174 BUSINSISS LAW. Exemplary Damages. Damages allowed as a punishment for a wrong- ful act deliberately or maliciously committed. Such damages are in addition to actual damages. Ex Post Facto Law. A statute which renders an act punishable in a manner in which it was not punishable when it was committed. Extradition. The surrender by one government to another of a person charged with crime. Factor. An agent employed to sell goods on commission. Fee Simple. Full ownership in lands. Feud, An estate in land, held of a superior by service; a fief. Feudal System. The system of feuds or fiefs. Firm. All the members of a partnership taken collectively. Fixtures. Articles of personal property which have become affixed to land. Foreclosure. The process of cutting off the right or interest of the mortgagor and his assignees in mortgaged premises. Forfeiture. A loss of property, right, or office, as a punishment for some illegal act or negligence. Sometimes applied to the thing for- feited. Forgery. The fraudulently making or altering of a written instrument. Franchise. A privilege, or right, conferred by grant from government upon individuals. Fraud. Any cunning, deception, or artifice used to circumvent, cheat, or deceive another. Freight. The compensation to be paid a carrier for the transportation of goods, or the goods themselves while being transported. General Average. A contribution made by the owners of a vessel and cargo toward the loss sustained by one of their number, whose prop- erty has been sacrificed for the general safety. General Ship. A vessel navigated by its owner, receiving and carrying freight indifferently for all who apply. Goods. Same as chattels and effects. Good Will. Benefit arising from the successful conduct of business by a certain person or firm, usually in a certain place; it is a property subject to transfer. Guaranty. A contract whereby one person engages to be answerable for the debt or default of another person. Quarantor is he who makes the guaranty. Guardian. One who is entitled to the custody of the person or property of an infant. Guest. A person received and entertained at an inn or hotel. Habeas Corpus. A direction signed by a judge or officer of a court directing a person detaining another to produce the prisoner at a certain time and place. Heir. One who inherits land unon the death of the owner. DEFINITIONS. 175 Highway. A passage, road or street, which every citizen has the right to use. Hire. A bailment in which the compensation is to be given for the use of a thing, or for labor and services performed upon it. Holding Over. The act of a tenant in remaining in possession of land after the expiration of his lease. Idiot. One who never had reasoning power. Importation. The act of bringing goods and merchandise into the United States from a foreign country. Imposts. Duties on imported goods. Inchoate. Incipient; incomplete. Incompetency. Lack of necessary legal qualifications. Incorporate. To form into a corporation. Incumbrance, A lien upon land as by judgment or mortgage. Indemnity. Compensation for damage suffered, or that which is given or promised to a person to prevent his suffering damage. Indorsement (of commercial paper). (1) A name, with or without other words, written on the back of the paper. (2) The agreement implied in one's writing his name on the back of commercial paper, to pay it if the principal debtor does not. The one who makes the indorse- ment is called the indorser. The person in whose favor the indorse- ment is made is called the indorsee. Infant. In law, is one under the age of twenty-one years. Injunction. An order or direction of the court compelling a certain person to refrain from doing some particular act or thing. Insolvency. Same as Bankruptcy. Insurable Interest. Such an interest in the thing insured that the person possessing it may be injured by the risk to which the thing insured is exposed. Insurance. A contract of indemnity against loss from certain causes. The insurer is the party agreeing to make the insurance. Interest. Compensation allowed by the borrower of money to the lender .for its use, or compensation paid by a debtor to his creditor, as recompense for the detention of the debt. Invalid. Of no legal force. Inventory. (1) An account or catalogue of goods or movables. (3) In law a list or schedule in writing of the goods, chattels, and credits (and sometimes of the real estate) of a testator or intestate, made by an executor or administrator. Jettison, The casting out from a vessel of a part of the cargo, in order to avoid a ship-wreck. (3) The cargo thus cast out. If the goods float it is called flotsam. Joint Stock Company. A species of partnership. Joint Tenants. Two or more persons to whom land is conveyed by deed or devised by will. 17f) BUSIA''ESS LAW. Judgment. The sentence of the law pronounced by the court upon any matter contained in the record, or in any case tried by the court. Judgment Debtor. Party against whom a judgment is obtained. Judgment Note. A promissory note in the usual form, and containing in addition a power of attorney on the part of the maker authorizing the holder to take judgment for the amount due, if the note is dis- honored. Judicial Sale. A sale directed by a court; as a sale on the foreclosure of a mortgage. Landlord. (1) One who owns and rents or leases lands or houses. (2) The host or keeper of an inn; an inn-keeper. Law. The rules and methods by which society compels or restrains the action of its members. Law Merchant. The general body of usages in matters relative to commerce. Lay Corporation. A corporation composed of lay persons, or for lay purposes, as distinguished from religious or charitable corporations. Lease. A contract by which one person grants to another for a period, the use of certain real estate. Legacy. A gift by will; commonly applied to money or personal property. Legal Tender. That kind of money which by law can be offered in payment of a debt. Lessee. A person to whom a lease is made. Letter of Attorney. Another name for power of attorney. Letters of Administration. An instrument issued out of the court having jurisdiction, granting power to settle the estate of one dying without leaving a will. Letter of Credit. A written direction by some well-known banker authorizing the party to whom it is addressed to draw upon him in a particular manner for any amount he chooses up to a specified limit. Letters Testamentary. An instrument out of the court having juris- diction, granting power to the person named as executor in a will to carry out the provisions of the will. Libel. To defame by published writing, printing, signs, or pictures. License. A permission or right granted to another, by one having au- thority, to do an act which would be il egal if unauthorized. Lien. A right which one person has to retain the property of another by way of security for a debt or claim. Liquidate. To pay; to settle an account. Liquidated Damages. Damages agreed upon by the parties to a con- tract, at the lime of the making of the contract, to be paid by the party failing to perform it. Litigation. The act of litigating; judicial contest; a suit at law. DEFINITIONS. 177 Xoan. A bailment of an article for use or consumption without reward. If the loan is for consumption, the article is to be returned in time; if the loan is for use, the article is to be returned without compen- sation for the use. Xogr-book. A ship's journal containing a minute account of the ship's course, and a reference to every occurrence of the voyage. Lottery. A scheme for the distribution of prizes by chance. Low Water Mark. That part of the shore of the sea to which the waters recede when the tide is lowest. Lncid Intervals. Periods from time to time in cases of lunacy in which the person afflicted becomes sane. Lunatics. Persons who have lost their reason. Maintenance. Support by means of food, clothing, and other necessaries. Malicious Mischief. The wanton or reckless destruction of property or injury to the person. Malicious Prosecution. The willful institution of a law suit or criminal proceeding without probable cause. Mandate. A bailment of personal property in which the bailee under- takes without compensation to do some act for the bailor in respect to the thing bailed. The bailor is generally termed the mandator, and the bailee the mandatary. Mania. A form of insanity. Manifesto. A declaration by a nation stating the reasons for its acts toward another nation. Maritime Law. That branch of the law which relates to the affairs of navigation and shipping. Marriage Settlement. An agreement made by parties contemplating marriage by which the title to real or personal property is changed. Martial Law. The military rule existing in time of war. Material Men. Persons who furnish materials to be used in the con- struction of ships or buildings. Maturity. The time at which commercial paper legally becomes due. Measure of Damages. The rule by which the damages sustained by the plaintifiE in a law suit is to be estimated. Merger. The absorption or extinguishment of one contract in another. Minor. Same as Infant. Misdemeanor. A lower kind of crime; an indictable offense not amount- ing to felony. Misnomer. In contracts a mistake in the name of a party; it does not avoid the contract if the proper party can be ascertained. A mis- nomer of a legatee in a will does not generally avoid the legacy. Misrepresentation. A false and fraudulent statement made by a party to a contract relative to a particular fact, knowing that the statement is untrue. Misuser. The abuse of any liberty or benefit. 12 L 178 BUSINESS LAW. Money. The common medium of exchange in civilized nations. Mouth. Generally in this country, where used in contracts, means a calendar month. Monuments. Permanent land-marks indicating the boundaries of land. Mortgage. A grant or conveyance of an estate or property to a creditor, for the security of a debt, and to become void on payment of such debt. The mortgagor is the one who gives the mortgage upon his property; the mortgagee the one to whom the mortgage is given. Municipal. Of or belonging to a city; but municipal law is the name given to the system of law of any one nation or state. Municipal Corporation. A public ci)rporation created by the govern- ment for political purposes, as a county, town or city. National Currency. National Bank bills. Necessaries. Such things as are proper and necessary for the sustenance of man. Negotiable Paper. An instrument as a bill or note, which may be transferred from one to another by assignment or indorsement. Negotiation. In mercantile law, the act by which negotiable paper is put into circulation by being passed from one of the original parties to another. Nominal Damages. Those given for the violation of a right from which no actual loss has resulted. Non-Suit. The name of a judgment given against a plaintiff when he is unable to prove his case. Nonuser. A failure to use rights and privileges. Notary Public. An officer appointed variously under the laws of dif- ferent States, whose acts are respected by the law-merchant and the law of nations, and hence have force out of their own State or country. Notice of Protest, also called Notice of Dishonor. The notice given to a drawer or indorser of a bill, or an indorser of a negotiable note, by a subsequent party that it has been dishonored either by non- acceptance or non-payment. Notice to Quit. A request of a landlard to his tenant to quit the premises. Nuisance. Anything that unlawfully injures or damages a person in the enjoyment of life and property. Nuncupative Will. An oral will declared by a testator at the point of death, before witnesses, and afterwards reduced to writing. The power to make nuncupative wills is usually confined to persons in the army or navy service. Oath. A pledge given by the person taking it, that Ms promise is made under an immediate sense of his responsibility to God. Open Policy. One in which there is no valuation of the thing insured. Oral Contract. An agreement made by means of spoken words. Ordinance. A rule, or order, or law. Usually applied to the acts or laws passed by the common council of a city. DEFINITIONS. Vt^ Outlawed. A debt is said to be outlawed that has existed for a certain length of time, after which the law on that ground alone prevents its being enforced. Par. Equality of value. Bills of exchange and stocks are at par when they sell for their face value. They are above or below par when they are worth more or less than their face value. Parol Contract. Any agreement not under seal. It is often used as synonymous with oral contract. Partners. The members of a firm or partnership. Dormant partners are those whose names are concealed from the public; ostensible partners are those whose names are held out to the public as the members of the firm; nominal partners are those who appear to the public as members of the firm but have no real interest. Partnership. The relationship resulting from an aj;reement between two or more persons to place their money, effects, labor and skill, or some or all of them, in some enterprise or business, and divide the profits and bear the losses in certain proportions. Party-Wall. A wall common to two adjoining estates. Pawn. Same as Pledge. Payee. The person to whom the payment of any kind of commercial paper is directed to be made. Payment. The fulfillment of a promise, or the performance of an agree- ment, usually by the delivery of a sum of money. Penalty. Forfeiture, or sum to be forfeited, for non-performance of an agreement. Per Centum or Per Cent. By the hundred. Perils of the Sea. All the dangers naturally incident to navigation. Perjury. A willfully false statement, by one who is lawfully required to depose the truth, and who is lawfully sworn, made in a judicial proceeding, and in relation to a matter that is material to the point in question. Personal Property. Consists of such things as are movable, and may be taken by the owner wherever he goes. Pledge. A bailment of personal property to secure the payment of some debt or the fulfillment of some agreement. The bailor is called the pledgor, and the baUee the pledgee. Pledgee. A person in favor of whom some obligation is contracted, whether to pay money or to perform some act. Pledgor. The person entering into an obligation to pay money or per- form some act. Policy. The written contract of insurance. Poor Debtor. A person arrested or imprisoned for debt, and entitled to discharge upon making oath that he has no property with which to pay the debt. There are but few States in which arrest is allowed for an ordinary contract debt. 180 BUSINESS LAW. Post-Dated. Having a date subsequent to that at which it is actually- made. Power of Attorney. A -written instrument under seal by -which one party appoints another to be his attorney, and empowers such attorney to act for him. Premium. The consideration or price paid for insurance. Prescription. The right to a thing derived from immemorial usage. Presumption. An inference of the law, from certain facts, of the ex- istence or truth of some other fact or proposition. Price. The consideration given in money for the purchase of a thing. Prima Facie. Literally, at the first appearance. Prima facie evidence is that which is sufBcient to establish a fact, unless it be rebutted or contradicted. Principal. (1) A party for whom another is authorized to do certain acts with third parties. (2) A sum of money at interest. Privity of Contract. The relation which exists between two parties who have made a contract. Probate of a Will. The proof given before a court or judge that an instrument produced as the will of a deceased person, is in fact what it purports to be. Promissory Note. A written promise, signed by the person promising, to pay a certain sum of money at a certain time to a person named, or to his order, or to the bearer. Prosecute. To proceed against by legal measures. Protest. A formal declaration in writing by a notary public of the de- mand and refusal to pay a note or bill. Proxy. (1) One who represents another. (3) A writing by which one authorizes another to vote in his place. Public Enemies. Those who belong to a nation at war with another. Puffer. Same as By-Bidder. Quasi. As if ; as though. Quasi Corporation. A public body or municipal organization which is not vested with the general powers of corporations, but is recog- nized by a statute or usage as persons or aggregate corporations with the power of suing and being sued. Quit Claim Deed. A form of deed in the nature of a release without covenants of any kind. Katiflcation. Giving force to a contract made by the person in ques- tion, but not now in force, or by another man as his agent. Real Covenant. A covenant connected with the conveyance of land, and which runs with the land, and which any owner of the land can enforce, although he be not a party to the instrument in which the covenant is contained. Beal Estate. Same as real property. Keal Property. That which is fixed or immovable, and includes land DEFINITIONS. 181 and whatever is erected or growing upon it, with what is beneath or above the surface. Realty. Same as real property. Receipt. Awritten acknowledgment by one receiving money or other property that it has been received. Receiver. Usually means a person appointed by a court to lake and hold property in dispute, or the property of a bankrupt. Recoupment, A reduction or diminution of damages in an action on contract for breach of warranty or defects in performance. Recovery. The amount of the judgment which the party to an action recovers. Re-enact. To enact anew. Registry. The entering or recording of real estate conveyances in books of public record. Reinsurance. Insurance effected by an insurance company to protect itself against insurance risks which it has assumed. Release. An instrument in the general form of a deed that in distinct terms remits the claim to which it refers; and being under seal, although reciting only a nominal consideration, extinguishes the debt. Remedy. The legal means employed to enforce a right or redress an injury. Rent. Compensation for the use of real property. When stated in a lease it is called rent reserved. Rescission. The annulling or dissolution of contracts by mutual con- sent, or by one party because of a breach of the contract by the other. Respondentia Bond. The obligation given for a loan made upon the cargo of a vessel. Revert. To fall again into the possession of the donor, or of the former proprietor. Right of Survivorship. This means that the survivor or survivors take the right or interest of their deceased joint tenant, which in other cases would go to his heirs. Riparian Owners. Those who own land bounded by a water course. Salvage. Property saved from wreck or loss at sea; or compensation given for service rendered in saving it. Satisfaction. Payment of a legal debt or demand; the discharging or cancelling of a judgment or a mortgage, by paying the amount of it. Scrip. Certificate of stock. Seal. An impression upon any impressible substance; or a piece of paper pasted on with intent to make a seal of it. Sea-worthiness. The sufficiency of a vessel in materials, construction and equipment for the service in which it is employed. Sea-worthi- ness is an implied condition of marine insurance; unsea- worthiness defeats insurance. 183 BUSINESS LAW. Set of Excliangre. The different parts of a bill of exchange taken to- gether. Each part is a perfect instrument by itself, and the payment of any one avoids the others. Set-Off. A claim -which one party has against another who has a claim against him ; a counter-claim. Severalty, A state of separation. An estate in severalty is one held by one person in his own right. Severance. The removal of fixtures from land. Shipper. One who gives merchandise to another for transportation. Shipping Articles. The agreement between the master of a vessel and the seamen determining the nature of the contract. Slander. Injurious words spoken of another, but not published. Slander of Title. A statement tending to injure the title of another by minifying or cutting it down. Smart Money. Damages beyond the thing sued for, allowed on the ground that the offense may be so great that the offender ought to be made an example of. Specialty. A contract under seal. Specific Performance. The actual performance of a contract by the party bound to fulfill it. Statute. An act of the Legislature. Statute of Frauds. An English statute, generally re-enacted in this country, requiring certain contracts to be made in writing, designed to prevent fraud and perjury. Statute of Limitations. A statute requiring an action to be com- menced within a certain time after the demand has arisen. It limits the time to sue, hence its name. Stock. Same as Capital Stock. It is also used to denote the shades into which the Capital Stock is divided. Stockholder. The owner of one or more shares of the stock of a cor- poration. Stoppage in Transitu. A stoppage, by the seller, of goods sold on credit before reaching their destination upon learning of the buyer's insolvency. Stranger. In contracts a person who is not one of the parties to the contract. Sub-Agent. A person appointed by an agent to perform some duty relating to the agency. Sub-Contract. A contract made by one who has agreed to perform labor or service with a third party for the whole or part performance of that labor or service. Subject-Matter. The thing to be done or omitted in a contract. Subornation of Perjury. Inducing or procuring another to commit perjury. Subrogation. The substitution of one person or thine in the place of DEFINITIONS. 183 another, particularly the substitution of one person in the place of an- other as a creditor, with a succession to the rights of the latter. Suit. The prosecution of some claim or demand in a court of justice. Surety. One who has agreed with another to make himself responsible for the debt, default, or misconduct of a third party. Similar to guarantor. Suretyship. The liability or contract of a surety. Surrender Talue. The amount which an insurance company will pay foi an unexpired policy. Tare. An allowance in the purchase and sale of merchandise for the weijht of the package in which the goods are contained. It may also be an allowance for the waste or diminution in the quality or quartity of the goods. Tax Deed. A deed given by the officer of the law charged with the collection of taxes to the purchaser of land sold for taxes at a tax sale. Tenant. One to whom another has granted for a period, the use of cer- tain real estate. Tender. An offer of a sum of money in satisfaction of a debt or claim, by producing and offering the amount to the creditor and declaring a willingness to pay it. Testator. One who has died leaving a will. Tonnage. The carrying capacity of a vessel. Tort. A private wrong or injury other than the breach of a contract. Trade Maik. The symbol, emblem or mark which a manufacturer puts upon tie goods he manufactures. Trespass. Any wrongful act of one person whereby another person is injured Trustee. One who holds property for the benefit of another. Ultra Vires. The acts or proceedings of a corporation done beyond the scope of its powers. Underwriter. Same as Insurer. United States Note. A written promise to pay to the bearer on demand a certain sum of money, issued by the United States Government and used as money. Usage. In mercantile law the well known uniform practice, or the manner of performance of an act or contract. Use and Occupation. The liability of a tenant to pay a reasonable rent for the ise and occupation of premises in case an agreement has been made for the use, but the rent not fixed. Usury. Illegal interest. Validity. Legal strength or force; the quality of being good in law. Valued Policy. One which fixes the value of the property insured. Vassal. One who held property of a superior or lord. Vendee. One to whom anything is sold; a purchaser; a buyer. Vendor. A seller; the person who sells a thing. 184 BlTSIlfBSS LAW. Tender's Lien. The equitable lien allowed the seller of land until tli& whole purchase money is paid. Void. Of no force or effect. Voidable. That may be avoided; not absolutely void. Wager Policy. A policy of insurance in which the insured person has no insurable interest. Waiver. The abandonment of a right, or a refusal to accept it. Ward. A minor under guardianship. Warranty. An agreement to hold one's self responsible, if a certain thing does not turn out as represented. Waste. Spoil or destruction done or permitted to land or the baildings by a tenant. Wharfage. The compensation paid the owner of a wharf for thQ privi- lege of landing goods upon it, or loading from it. Wharfinger. The owner of a wharf who maintains it for the purpose of receiving and shipping merchandise. BUSIS'ESS FOEMS. PROMISSORY NOTE— NON-INTEREST BEARING. $125^^. Detroit, Mich., June 30, 1891. Sixty days after date, I promise to pay to the order of E. R. Andrews, One Hundred Twenty five -^^^ Dollars, at the Fourth National BanTc, value received. S. B. Wilder. PROMISSORY NOTE— JOINT AND SEVERAX. $6000. Geneva, N. Y., Aug. 5, 1891. One year after date, tve jointly and severally promise to pay to the order of J. B. Ford, Six Thousand Dollars, value received, with interest. S. B. Martin, H. 0. Parker. PROMISSORY NOTE- NOT NEGOTIABLE. $246,^. Dayton, Ohio, June 4, 1891, Six months after date, I promise to pay Horace G. Barton, Two Hundred Forty-six -^-^ Dollars, value received, with use. J. E. Kline. PROMISSORY NOTE— DEMAND. $3000. Clifton, N. Y., Sept. 1, 1891. On demand I promise to -pay S. B. Smith, Three Thousand Dollars, value received, with interest. W. S. Hamilton. JUDGMENT NOTE. $800. Burlington, Vt., Oct. 2, 1891. Thirty days after date, I promise to pa.y R. W. Bradley, or order. Eight Hundred Dollars, with interest; and I do hereby confess judgment for the above sum, with interest and cost of suit, a release of all errors and waiver of all rights to inquisi- tion and appeal, and to the benefit of all laws exempting real or versonal property from levy and sale. R. J. Conwat. 185 186 BUSINESS FORMS. CHATTEL, NOTE. $300. NEWT017, Iowa, Feb. 16, 1891. On or hefore July 1, 1891, for value received, I promise to pay Walter L. Jones, Tliree Hundred Dollars; to le paid said Jones at my warehouse hy the delivery to Mm of wheat, corn and oats, at current prices. One Hundred Dollars worth of each of the Tcinds of grain mentioned. Julius R. Chambeklain. promissory note— indorsed. $100. St. Paul, Minn., May 1, 1891. Sixty days after date, I promise to pay to the order of H. W. Banning, One Hundred Dollars, at Fourth National Bank, Neio Yorh City, value received. "William H. Winslow. x" § '« -S 1 'A ;^ ri m 1 la !8 ^ < t— ) j::> "O < 'A ►— ( 1 — 1 >^ Ss^-^ pa 1 a at a % 'A 'A w 1 4J a a 1 ■4^ a e s v in S 8 2 P4 notice of xyment on Eh" ■a a -A pq .-3 '^Ph s H "^ S a § t5 S B M a 9 ■a a M ^ Tl -2 4) <1 a h ^ a a 3 4) S 1^ 1 'u to 5^ I, protest otice of n 2? 6. 2^ <:; 1 ? 1 5 1 1 8 SIGHT DKATT. $553^. Beockpoet, N. Y., June 30, 1891, At sight pay Edivard Klix, or order, Five Hundred Fifty- two T^-i. Dollars, value received, and charge to my account. Geo. Geaves. To M. L. Culver, Eichmond, Va. BUSINESS FOBMS. 187 ACCOMMODATION NOTE — WITH INDORSEMENTS. $175.00. Portland, Me., July 18, 1891. Three months after date I promise to pay to the order of myself, _ One Hundred Seventy-five t^ Dollars, value received. Payable at Commercial Bank. F. D. Livingston. Written across the back: F. D. Livingston, W. C. Ooddard. TIME DKAET - ACCEPTED. $321^. Buffalo, N. Y., July 10, 1891. At ten days' sight pay to Robert Thompson, or order. Three Hundred Twenty-one -^^ Dollars, value received, and charge to my account. To Amos Demmg, John D. Marvin. Syracuse, ISf. Y. "Written across the face of the draft: Accepted, July 15, 1891, payable at First National Banh, Amos Deming. CHECK — CERTIEIED. No. 1041. Springfield, Mass., July 25, 1891. FIEST NATIONAL BANK of Springfield. Pay to Cunningham & Co., or order. One Hundred Seventy- one ^0 Dollars. $171^. Edwards & "Wheeler. Stamped or written across the face of the check- Good, A. B. Allen, Teller. GUARANTY OF PAYMENT. For value received, I hereby guarantee the payment of the ■within note, "W. B. "Wilson. GUARANTY OF COLLECTION. For value received, I hereby guarantee the collection of the within note. E. C. Spanton. 188 BUSINESS FORMS. RECEIPT — TO APPLY ON ACCOUNT. $35.00. Datton, 0., June 30, 1891. Received of Henry B. Kane, Thirty-five Dollars, to apply on, account. Upton & Faikchild. receipt — in fuix of ai.i. demands. $113^j^. Chaelestost, S. 0., April 1, 1891. Received of Milton Barton, One Hundred Thirteen ^Jj Dollars in full of all demands against Mm. Enos X Spinning. nmrk. RECEIPT — TO APPLY ON NOTE. $150.00. BiNGHAMTON, N. Y., Sept. 5, 1891. Received of Myron T. Ely, One Hundred Fifty Dollars to apply on Ms note, dated June 1, 1891, given to me, being the same payment zcMch I have indorsed on said note. E. E. Peitchabd. DUE BILL — PAYABUE IN MONET. $75.00. Syracuse, N. Y., Sept. 13, 1891. Due Sam uel R. Whitney, or order, Seventy-five Dollars. W. B. Faenham. DUE BILL — PAYABLE IN GOODS. $17tV(T- Newaek, N. J., Oct. 3, 1891. D^ie F. G. Henderson Seventeen Dollars in goods from my store. C. B. Cheesman. EMPLOYMENT CONTRACT. 77iis agreement made and entered into at Richland, Wisconsin^ this ttoentieth day of February, 1891, by and between Jerome B. Green, farmer, and Clayton HopTcins, laborer, both of Richland, Wis. , provides as follows : First. — That said Hopkins shall toork as a farm hand on the premises of said Green, and as directed, in the usual manner, and for the usual hours accustomed in farm business, for the veriod of one year from date hereof. BUSINESS FORMS. 189 Second. — For the services provided for, said Green agrees that during said year the said Hopkins may become as one of said Green's family, loarding and lodging therewith, and hav- ing all the usual privileges of farm laborers, and at the comple- tion of the year's labor Green shall pay to Hopkins the sum of two hundred and forty {2Jfi) dollars in full for his services. Third. — Neither party hereto shall have a right to terminate this contract before the expiration of the time, except for cause. Witness, Signed, Jeeomb B. GEEEisr, Louis H. Baenes. Clayton Hopkins. STOCK CERTZFICATB. ^"o. 185. Shares, 100. ^W i» to i&ttixiVi, that Elmer Sherwin is entitled to One Hundred (100) shares of the Capital Stock of The Ameeican Buggy Co., of Hartford, Conn., transferable in person or by attorney, on the hooks of said Company only upon the surrender of this Certificate. Pk W\iU§$ ^KJheteof, the said Company has caused this Cer- tificate to be signed by its President and Treasurer. Dated, Hartford, Conn., July 11, 1891. Byeon Lloyd, Feank L. Jennings, Treasurer. President. TRANSFER OF STOCK. ( Back of Certificate.) For value received, I hereby assign and transfer to M. E. Jones 100 shares of the Capital Stock represented by the within Certificate, and do hereby constitute and appoint Daniel Osboene, Attorney, to transfer the said stock on the books of the within-named Company, with full power of sub- stitution in the premises. Elmee Sheewin. Date, July U, 1891. Signed in the presence of M. D. Beown. 190 BUSINESS FORMS. PROTEST. ss. ^tate at 'gm fotfe, ) Un"ited States of Ameeica. j SCo «U to whom these presents shall come. %t'xi ^ttoWtt, That 011 the tenth day of July, in the year of our Lord one thousand eight hundred and ninety-one, at the request of ©he ^oltlJifjS thereof, I, 0. B. Banning, Notary PuMic, duly commissioned and sworn, divelling in the City of Albany, did present the original note, hereunto annexed, to the teller at Traders National Bank, in this City {ivhere the same is payable) and did demand •payment thereof, which luas refused. ^HJJtetfMpOtt, /, the said Notary, at the request aforesaid, did '^XOtt^i, and by these presents do publicly and solemnly ^tattiSt as well against the Maker and Indorsers of the said note, as against all others whom it doth or may concern, for exchange, re-exchange, and all costs, charges, damages and interest, already incurred, and hereafter to be incurred, for want of payment of the said note. ®huji ^one and ^xaiUitA, at Albany, N. Y., the day and year first above written. ^tt ©fiStimonittm ?l!Initatiji : 0. B. Banning, Notary Public. PUase give notice of this Profit to all partis to } the within Note as soon as you receive this. ) Back of Protest. ■^ Oi oo "^ ^--l s^ ^'^ ^' ^ % Sr^ ,— J . 1 s § ~ g TJ Si CA C c IQ 3- 3D u I 9) >< o o 3 ^ B) ta < "^' 1 a 1 1 1 1^ 2 > 7Z cn ~o o z Co o •z m m 03 > z o □ m z > H O z Not Negotiable. 1 1 5^ O m CO o :5 o z o -n > H O r- m 03 CD c m o ^^ O I S ■H O z ta 2.^ S;gS. CD c •-tsp 50 ". " n A r- 5° ■d-o5'» 8L o o o 3" (S 0) r* CD "D H— -. S. m" Qj ■■?■ o ^ S C S o o I 3 g 5 5:m 2..^ S g. T 3 5" 2 era „. o o 5 rt, g. E' a wpg-g. Bod's SooQ^g-.g-S Q.P'-i^r-h'^Bo f^ !?o 3 rt <" o p B- a g"S. P s° o i3 0'^.„Ss-e' ? j= g o i§ „ g. ffl B e o g_ » » S (0 CD O <^ ^ pUrt p $ M B CD _ P EJ ' — '."^ 1-1 CD c« ^^ o St «. ^ s^ » I.g^S-0 5^ 2 CO K.-2 o •5 g JiS. ►O CO 2 •— ' S'CD O O CO is ^ a O Ms o o 3 ■D Q) 3 til D- i C -J (Q H 3- 3J I' a) ^ $ o Q) ^ < ^ 193 strsiN:Ess foRirs. ABSTRACT OP TITIE. Examination of Title to part of section No. SB, Township Xo. 32 S., Range No. Slate of Florida. 1. E., Land Patent Certificale No. 10715. Dated, March 30, 1875. Con.iidcralion S10,uao.OO. Eecordcd, April ~'0. 1S75, in booh J of deeds, at page 35. Conveys said section 35, with otlier piropertij. TJie United States of America to Ilamilton Disston. Hamilton Disston and wife to Tlie Florida Land and Lmprore- mcnt Companij. Quit Claim deed. Dated Mail 2, 1880. \- Consideration 85,000.00. Recorded, May ~0, 1880, in look K of deeds, at page 53. Conveys said Sec. 35, with other property. 3. Jlie Florida Land and Lmprove- ment Company to Arthur G. Clement. Warirnit)/ deed. Dated. April 1, 1885. Cans ideration 9500. 00. Recorded, April 10. 1885, in hook Kof deeds, at p. 351. Conveys the N. W. quarter of tJie S. W. quarter of said section 35, containing Jfi acres according to the gocermnent survey. I, Geo. W. Hendry, Clerk of the Circuit Court, in and for the County of DeSoto, State of Florida, hereby certify that I have carefully examined tlie records in my office, and L find noth- ing of record affecting the title of tlie premises described in No. 3, in tlie foregoing abstract , from and including March 30, 1875, in the names of Hamilton Disston, Tlie Florida Land and Im- provement Co., and Arthur G. Clement, other than is set forth in the foregoing three abstracts, and I further certify that I find no judgments, mortgages or liens, or incumbrances, from and including said date, against said persons and premises, excepting as is hereinbefore set forth, to and including this date. Dated, June 1, 1891. GEO. AV. HENDRY, [seal.] Clerk of the Circuit Court. BUSIlfESS FORMS. 193 akticl.es of copaktnekship. gmticleiS at (JopartttetSltip made this 1st day of June, 1891, ietween Daniel R. Clark and Charles F. Crandall, both of the City of Bufialo, N. Y., witnesseth: I. The parties above named have agreed to become copartners in business, and do hereby agree to be copartners under the firm name of Clarh and Crandall, in the business of manufacturing, Jmying and selling paints, oils and painters' supplies, and con- ducting a general paint and oil store in said City of Buffalo. II. The partnership hereby formed shall commence at the date hereof and continue for the term of five years, unless sooner dis- solved by the operation of laio. III. Said Crandall shall contribute to the partnership capital the sum of Twenty five (26) Thousand Dollars in cash, and said Clarh shall contribute the stim of Five (5) Thousand Dollars in ■cash, and his skill and knowledge of the business, and the con- tribution of said Clark as aforesaid is deemed equal to the con- tribution of said Crandall. I V. It is agreed that said Clark shall devote his whole time ^DEX TO BUSIITESS FORMS. Abstract of title 192 Accommodation note 187 Acknowledgment ' 58 Articles of copartnership 193 Assignment of note _ . 48 Bank check _ 46 Bill of exchange, foreign . _ 41 Bill of exchange, inland 40 Bill of sale 58 Bond, debt secured by mortgage 140 Certificate of stock 189 Certified check 1 87 Chattel note 186 Chattel mortgage 194 Contract of guaranty 84 Deed, warranty 130 Deed, quit claim 133 Discharge of mortgage 143 Draft 40 Draft, accepted 187 Due bill 188 Employment contract 188 Guaranty of payment 187 Guaranty of collection 187 Indorsements ._ 186 Judgment note 185 Land contract 146 Lease 149 Memorandum of sale 57 Mortgage, land. 138 Note, promissory 38, 185 Notice of protest 44 Notice to tenant 153 Notice of stoppage in transitu 64 Power of attorney 66 Protest for non-payment 190 Receipt 188 Shipping receipt 191 Sight draft 186 Time draft 187 Transfer of stock 189 Waiver of protest 185 lor. Il^DEX. A. PAGE. Abandonment 160 Absence of debtor 28 Acceptance of proposition 11 must be unqualified 13 how accepted 12 when accepted 12 Acceptance of draft 41 definition 42 presentment for 42 time of presentment 42 conditional acceptance 43 Absolute acceptance 43 non-acceptance _. 48 form of acceptance 43 Acceptance of dedication 160 acceptor 43 Accident insurance 100 accommodation paper 53 Acknowledgment, of deeds 135 of mortgages 138 Act of God, definition - 90 excusing carriers __ 90 Administrator, definition 167 transferring paper - 49 Affidavit, definition 167 Agent, definition. 66 appointment of -_ -..66, 67 authority of 67, 68 proof of authority .- 68 liability of.. 69 general and special agents... 68 Agency, definition 66 termination of 70 Agistor, definition 98 liability of 98 Alien, definition 167 incompetency of 10 Amount, of negotiable paper 84 how stated 84 Application of payments, definition 25 by the creditor _ _ 25 by the debtor 25 by the law 25 Appurtenance, defined 167 Application for insurance, untruths iu 100 Articles of copartnership 73 Assent, mutuality of 11 requisites of _ 11 how effected 11, 12 must be free will 12 fairly obtained 12, 13 Assignment, fraudulent 20 of negotiable paper. 48 of mortgage 141, 142 of lease 152 of insurance policies. _ 100 Attorney in fact, defined. 168 Auctions, pufEers and by-bidders at 30 197 198 INDEX. B. PAGE. Baggage, of passengers 93 of guests _ 93, 94 Bailee, defined 1G8 Bailment, defined 168 Bank note, defined 168 Bankruptcy, definition. _ -_ 168 effect on agency. TO Beneficiary, in insurance 98 Bets 18, 19 Beyond seas, defined 168 Bill of exchange, definition __ 40 foreign and inland 40, 43, 44 form of -40, 41 maturity of 41 presentment of 41, 42 acceptance of 42, 43 protest of- 43 notice of protest of 44, 45 Bill of lading, defined 168 Bill of sale, form of .57, 58 Bills receivable, defined -- 168 Blank indorsement 50 Blockade, defined 168 Boarding-house, distinguished from inn 94 Boarding-house keeper, rights and liabitities . . - 94 Bona fide holder, definition -- 50 requisites of - 50, 51 result of - 51 Bond, definition 169 ■with mortgage 140 Broker, defined 109 Body corporate,see Corporation. Breach of contract, definition 29 action for 29 Breach of warranty 29, 64, 65 By-bidder, see Auction. By-laws, see Corporations. C. Capital of partnership 72, 75 Capital stock, defined - 80 transfer of 80 liability of owner 80 Carrier, defined 89 inland 89 by sea 89 see common carriers -- 170 Caveat emptor, defined 169 application.- --- 63 Certificate of stock, defined 169 transfer of 80 Certification of check, definition 47 liability of bank 47 Charter, of corporation 78 Charter party, defined 170 Chattel, defined 170 Chattel real, defined 170 Chattel mortgage, definition 105 filing of - 105 Checks, definition — 45 post dated --. 45 form of 46 liability of drawer 46 presentation of 46, 47 certification of 47 hints about use of 47 transfer of-- 48 indorsement of 49 stopping payment of 47 Children, earnings of 116 duties of to parents 116 guardian of 116 INDEX. 199 PAOH. Collateral, definition 170 promise 85 Collection, guaranty of 87 Commercial Law, reasoQ for 5 source of 5 Commercial paper, see Negoti- able paper. Commission er of deeds 135 Common carriers, definition of 89 obligations of 89 obligation to carry 89 compensation of 89, 90 the contract of 90 liabilityof 90 limitation of liability 91 deliveryby 91 lien of 91, 92 Common law 5 Company, see Corporation. Compound interest, definition 108 when allowed .- 108 Concealed partner, defined 74 Concealment of facts, affecting contracts 13 affecting insurance -- 100 Conditional sale, definition 60 instances of 60 Conflict of Laws, affecting contracts 32 affecting interest 108 affecting marriage and di- vorce 114 Consent, see Assent. Consideration, elements of a contract 7 definition -- 13 sufficient consideration 14 good consideration 14 valuable consideration 14 PAGE. consideration of guaranty 86 invalid consideration 15 failure of consideration 15, 16 Constructive delivery, defined- 61 Contracts, definition of 6 oral 6 written 6 by specialty 6 oral and parol distinguished. 7 express and implied 7 executed and executory 7 elementsof 7 parties to 7, 8 contracts by infants 8 by married women 9 by alien enemies 10 by idiots and lunatics. 10 by drunken persons 11 mutual assent in 11 consideration of 18 the subject matter of 16 in restraint of marriage 17 in restraint of trade _. 17 perversive of justice 18 immoral 18 gambling 19 fraudulent 19 hints about making. 22 rescission of 64 Copartnership, see Partnership. Copyrights, distinguished from patents.. 120 how obtained 121 to whom granted 121 duration 121 transfer of 122 infringement of __ 123 validity of 122 Corporate seal, see Corpora- tions. Corporations, definition 77 object of 77 300 INDEX. PAGE. kiudsof.. 77 description of 78 powers of 78 government of 79 capital stock of 80 seal of__ 80 administration of 81 Course of exchange, defined 171 Covenants, definition of 139 efEectof 129 personal 129 running, with land 129 Coverture, disability of 9 D. Damages, definition of 171 for breach of contract _ 30 for breach of warranty 65 liquidated __. 30 exemplary 30 Date of negotiable paper 34, 45 Days of grace, definition 39 when allowed 39, 41, 45 Death, effect on agency 70 effect on partnership 75 effect on corporation. 77 effect on joint stock com- pany 81, 82 Debtor, absence of 28 Deceit, effect on contract. 19 Debts, outlawed 27 Deed, title by. 126 definition _. 127 parties to 128 form of _. 138 requisites of 128 PAGE. covenants in _ _ 129' kinds of .- 129 warranty 129, 130 form of warranty.- 130 full covenant 131 quitclaim 13& execution of 134 delivery of 135 acknowledgment of 13& recording of 136. deed of highway ..-160, 162 Defenses _._ 29 Delivery, of property sold 60 time of_._ 60, 61 fraudulent 61 constructive 61 by carrier 91 Demand of payment, of notes.. _ _ 39 of drafts 41 of checks 46 Demurrage, defined 172 Deposit, definition '. . 173 Description in deed 128, 163 Deviation, defined 172 Director of corporation, defini- tion 79 Disability to contract, legal disability 8 natural disability 8, 10 Disaffirmance of contracts 9 Discharge of mortgage 142 Discharge of employee 110 Discount 39 Dishonored paper. 43, 44, 172 Dissolution of agency 70 Dissolution of partnership 75 effect of 75 Dissolution of corporations 81 Distress for rent 153, 173 Divorce 114 Domestic bill of exchange 40 Domestic relations, defined 17a INDEX. 201 PAGE. Dormant partner 74 Dower 125, 173 Draft, see Bill of Exchange. Drawer and Drawee 37 Drawer's contract 37 Drawee's contract 43 Drunken persons, contracts by 11 wrongs committed by 11 guardiansfor 11 Duress, definition _. 173 effect on contracts 13 legal imprisonment not 12 E. Easement, definition ...124, 173 instances of 137 Emblements, defined 173 Eminent domain, defined 173 Employer and employee... 109-113 the contract between 109 employee's compensation. 109, 110 employee's obligations 110 employer's obligations 110, 111 employee's risks Ill employee's liability 113 employer's rights against third persons 113 employer's liability for em- ployee's acts ..113, 113 Estates in land, see real prop- erty. Estates for life 134, 125 Estates for years. 150 Eviction of tenant, actual 155 constructive 155 result of 155 Executed and executory con- tracts 7 Executed and executory sales.. 60 Execution, of instruments generally .... 173 PAOE. of deeds 134 of mortgages 138 Executor, definition 173 transferring negotiable paper 50 Exemplary damages, see Dam- ages. Express contract 7 F. Factor, defined _ 174 Failure of consideration 15 False representations, in sales 63 in insurance 100, 101. Fee-simple 134, 174 Fire insurance, definition 98 the contract of 98 usual conditions of 99 fraud and concealment affect- ing 100 Fixtures 156,157 definition of 156 instances of _ . 156 a grantee's fixtures 156 a tenant's fixtures 157 a landlord's fixtures 157 Foreclosure of mortgage... 137, 138 Foreign bill of exchange, definition 40 drawn in sets 41 protest of 43, 44 Forgedpaper 53 Found paper 52 Forwarders , definition 96 liability of 97 Fraud, affecting contracts 12, 19 definition of 13 affecting sales 64 affecting insurance . 100 fraud of agent 69 of employee 113 Frauds, statute of.,,.- 30, 38 203 INDEX. ft. PAGE. Gambling contracts, when void 18, 19 stock and grain gambling — 19 Gifts 14 Good consideration 14, 15 Good -will, defined 174 Gratuitous services 109, 110 Guaranty and suretyship 84-8S definition 84 formation of contract 84 parties to 85 consideration of 86 liability of sureties 86 rights of sureties 86 rights between sureties 86, 87 discharge of sureties. 87 Guaranty of payment and col- lection 87, 88 Guardians 11, 116 Guest, definition of 93 rights of -.93, 94 baggage of 94 H. Highways 160-1G5 definition of 160 how established 160 highways by deed 160 bydedicatiou — 160 by prescription 161 by statute 161 ownership of soil of 161 closing of 162 when included in deed 162 obstruction of 163 right of way in 163 repair of 163, 164 vehicles and predestrians in. 164 vehicles and street cars in 165 rate of speed in 165 Hiring of things, definition 95 hirers liability 95 PAGE. Hiring of services, definition. 96 workman's liability 96 Hiring of custody, definition 96 duty undertaken 96, 97 Hotel, see Inkeeper. Husband, duties and liabilities of 114 rights of 115, 116 I. Idiots, definition 175 incompetency of _ 10 necessaries purchased by 10 committees of ._ 11 Ignorance of fact and law 13 Illegal contracts 16, 18, 19 Implied contract 7 Imprisonment for debt, see Poor debtor. Indemnity bond, see Guaranty. Indorsement of negotiable paper, without recourse 48 usual method of transferring 48 definition of 49 the liability assumed 49 steps to charge the indorser.. 49 indorsement in blank 50 restrictive indorsement 50 Indorser, definition. 36 entitled to notice 37 liability of 49 conditions of liability 49 Infants, incompetent to contract 8 contracts for necessaries 8 what are necessaries 8 disaffirmance by. _ 9 wrong doings by 9 guardians for 11,116 INDEX. 203 PAGE, ■wages of 109 Injunction, defined 175 Inland bill of exchange, see Domestic bill of exchange, Inkeepers 93-94 definition of 93 liability to receive guests 93 liability for baggage.. 93 limitation of liability 94 lien of 94 Insolvent laws, contracts per- versive of , void _. 30 Insurable interest, defined 175 Insurance, definition of 98 life insurance, definition 98 fire insurance, definition 98 policies of insurance _98, 99 conditions of fire insurance. 99 conditions of life insurance. . 99 fraud and concealment in ap- plication for 100 accident insurance 100 Insurer 98 Insured 98 Intention of parties, affecting contracts 22 affecting fixtures 157 Interest and usury. 106-108 definition of interest 106 rate, how fixed 106 when interest allowed _ . 106 definition of usury 106, 107 interest upon interest 108 result of usury 108 J. Joint stock companies, definition of - 81 liability of stockholders in.. 81 distinguished from corpora- tions ..82, 83 Joint tenants, defined 175 Judgment, defined 176 L. PAQH. Land contract 144^147 must be in writing I44 signed 144 a sufficient writing 144, 145 insufficient writing 145 contract without writing 145 form of land contract. 146 eiecutionof 147 Landlord, see Innkeeper. Landlord and tenant 148-155 definition of landlord 148, 176 definition of tenant 148, 183 the contract between 148 formation of the contract 148 kinds of tenants 150 the rent 151 sub-tenants 152 sale subject to lease 152 removal of tenant 152 notice to quit 153 waste 153 repairs 154 eviction of tenant 155 Law, source of commercial law ... 5 statute law 5 Law of place, see Confiict of laws. Law merchant, defined 176 Lay corporation, defined 176 see also Corporations. Lease, definition 148 the parties to 148 verbal lease 148 when must be in writing 20, 21 term of lease 151 assignment of lease. 152 lease compelling repairs 154 Legal capacity to contract 8 Letter of credit, defined 176 Letters patent 120, 123 see also Patents. 204 INDEX. PAGE. Liens, definition 102, 176 when possible 103 creation of 103 created by law _ 103 by usage 103 by agreement of the parties.. 103 general and special 103 requisites of 103 waiver of 104 Life insurance 98, 101 definition 98 the contract of 98 policy of 98, 99 usual conditions of 99 fraud and concealment in... 100 representations and warran- ties 100 hints about 100, 101 Life tenant 151 see also Estates for life. Limitation of time to sue, see Statute of limitations. Limited partnership _ 74 Liquidated damages, see Dam- ages. Loans, see Interest and usury. Lobbyists, contracts for services of_.._ 18 Lost negotiable paper 53 Lucid intervals, defined __ 177 Lunatics, definition 177 incompetent to contract 10 necessaries for 10, 11 committees of 11 M. Malier of note _ 36 Manner of making payments, see Payments. Marine insurance, definition 98 see also Insurance. PAGE. Maritime law, defined 17T Marriage, promises in consideration of. 23 contracts in restraint of 17 contract of 114 law of place affecting 114 Married women, contracts by 9 services of 115 Master and servant 109-113^ see also Employer and em- ployee. Material men, defined 17T Maturity of negotiable paper. 39, 41 see also Days of grace. Merger, defined . _ _ 177 Minors, see Infants. Mistake of law and fact 13 Mortgages, real estate 137-1 4S their nature 137 defeasance of 137 power of sale and redemp- tion 137, 138 execution and delivery of 138 usual form of. 138 interest clause 140 tax and insurance clause 140 bonds with 140 assignment of 141 priority of 148 discharge of 142 chattel mortgage, see Chattel. Mortgagee, defined.. 187,178 Mortgagor, defined 137, 178 Mutual assent, see Assent. N. Necessaries, of infants 8 of idiots and lunatics 10 of wife 114 Negligence, of carriers 9(> INDEX. 305 PAGE. of agents 70 of employees 110 of co-employees 111 of hotel keepers 93, 94 Negotiable words 33, 38, 46 JSTegotiability, test of 83 result of 83 INegotiable paper 33-54 its origin. _ 33 amount of 34 absolute payment of 34 date of 84 time of payment of 34, 35 non-essential parts of 35 assignment of _ 36 parties to 36 holderof 87 transfer of 1 48 indorsement of 49 bona fide holder of 50 lost and stolen 52 forged -- - 53 guaranty of 52, 53 accommodation paper 52 non-negotiable paper 35, 36 New promise, to pay outlawed claim -- 28 Nominal damages, defined 178 Non-acceptance, of bill of exchange . _ _ 43 steps to be taken on 43, 44 Non-negotiable paper. __- 35 assignment of 36, 48 non-payment of notes and bills 40, 43,44, 45 Non- user, defined ITO Notes, definition 37 form of 38 negotiable words in 38 interest on 39 maturity of 39 presentment of 39 PAGE. lost ---- 52 accommodation 53 guaranty of 53 Notice of non-payment,see Non- payment. Notice to agent 68 Nuisance, definition 158 instances of -_ 158 damage by 158, 159 public and private. 159 abatement of 159 O. Obligation, moral 27 Obscene publications 18 Offer and acceptance _ 11 how made 12 by mail 12 see also Acceptance of propo- sition. Officers of corporations, see Corporations. Offset .--- 28 On approval sales ..59, 60 Oral contract 6, 7 Order, notes and drafts... 33, 38, 46 Ostensible partner 74 Outlawed debts, reason for them _ - _ 37 when outlawed 27 computation of time 27 absence of debtor affecting.. 28 new promise reviving _ 28 Ownership of real estate. ..124, 125 P. Par, defined 179 Barents, duties of 115 rights of 116 Partners, contract of 73 206 INDEX. PAGE. dormant 74 ostensible 74 liability of 74 power of 74, 75 Partnership, contract of 72 formation of 72, 73 articles of 72 testof 73 dissolution of 75 effect of dissolution, 75 Party -wall, defined 179 Par value, see Par, Passengers, right to transportation 89 fare of 89, 90 contract with 90 baggage of _ __ 92 Patents, definition of 120 patentability 120 how obtained 121 to whom granted 121 duration of _ 121 transfer of 122 validity of _. 122 Pawn and pawn broker, see Pledging of personal prop- erty. Payee, definition of 36 Payment, in money 23 in property 28 by note _ 23 manner of making 23, 24 presumption of 24, 25 application of 25 tender of 25, 26 Per cent., defined 179 Performance of contract, as a defense 28 specific performance 30 Perils of the sea, defined 179 PAGE. Personal property, definition of 55 see Sales of. Piracy, defined 179 Pledging of property, definition of 104 contract of 104 enforcement of 104, 105 Policy of insurance, see Insur- ance. Post dated checks, see Checks. Power of attorney, definition of ___ 66 form of .66, 67 acknowledgment of 67 Power of agent, see Agent. Powers of corporations, see Corporations. Powers of partners, see Partners. Premium, defined 180 see also Insurance Prescription, title by 126 distinguished from deed 126 highways by 161 Presentment for acceptance, see Acceptance. Presentment for payment, of notes 39 of checks 46 Price, defined __ _55, 180 in sales ._ 56 Primary liability, see Guaranty. Principal and agent, see Agent. Principal, see Interest. Principal, see Guaranty. Private road, see Easement. Promise, to pay another's debt. 21 Promissory note, see Notes. Profits, see Partnership. Property, personal, defined __ 55 real, defined. _ 124 tender of 126 INDEX. 207 PAGE. Proposition, see Offer. Proof of deed _ 135 Protest, see Notice of protest. Public policy, contracts against 16 Q. Qualified acceptance 43 Quasi corporation, defined 180 Quit claim deed, defined 180 effect of 133 R Ratification, by infants 9 by principal 69 Real covenants, defined 180 Real estate, defined 134 title to 135 kinds of interest in 134 Receipt, as proving payment 24 check as receipt __ 47 Recording, of deeds and mortgages.. 136, 138 object of recording 136 Recoupment 28 Redemption, by mortgagor 137 of property pledged 105 Receiver, defined 181 Reinsurance, defined 181 Release, defined 181 Remedy, defined 181 for breacb of contract 29 Rent, see Landlord and tenant, and Lease. Renunciation by agent 70 Rescission of contracts, defined 181 Rescission of sale 64 Repairs, see Landlord and tenant. Revocation of agency 70 Right of lien, see Lien. PAGE. Right of survivorship, defined. 181 Right of way 124 Riparian owners, defined 181 S. Sales of personal property 55-65 definition 55 requisites to the contract 55 when must be in writing... 20, 22 parties to 55 subject matter of _ . _ _ _ 56 when contract must be in writing 57 bill of sale... 57, 58 sales on trial 59 of goods to arrive __ 59 by sample 59 conditional sales 60 executory sales 60 warranty in sales 62, 63 rescission of sales 64 Salvage, defined 181 Seal, definition 181 affixed to contracts 6 Servant, see Employer and em- ployee. Set-off. __ 28 Sharing of profits, see Partners. Sight draft 41 Signature, forgery of 53 Skill of employee 110 Slander, defined 183 Slander of title, defined 183 Smart money, defined 182 see also Exemplary damages. Special agent, see Agent. Special partner, see Partners. Specialty, contracts by 6 Statute law __ 5 Statute of frauds, definition 20 its requirements _ 20 what is a sufllcient writing.. 21 208 INDEX. PAGE. Stockholders, see Corporations. Stolen paper _ 53 Stoppage in transitu, definition. 63, 64 exercise of the right 64 Stopping payment of check 47 Streams, see Riparian owners. Street, see Highways. Strikes, unlawful 18 Subject matter of contracts, definition __ 16 what it may be 16 illegal subject matter 16 Sub-agent, defined 183 Subrogation, defined 183 Sub-tenant 153 Sunday, desecration of _ 18 contracts made on 18 Surety, see Guaranty and surety- ship, T. Telegraph and telephone com- panies 117-119 nature of the business 117 the contract undertaken. 117, 118 liability of the company 118 limitations of liability 119 Tenant,see Landlord and tenant. Tender of payment, definition 35 requisites of ._ 26 Tender of property . . _ _ 26, 27 Trade, in restraint of 17 Trade marks 120-123 definition 120 how obtained 121 object of 121 to whom granted 121 infringement of 122 validity of 122 Transfer, • of negotiable paper 48 of non-negotiable paper 36, 48 U. PAGE. Usage, defined 183 Usury, definition 106 what is not usury 107 result of usury 108 Use and occupation, defined 183 V. Valuable consideration, definition 14 the benefit of 14 Value received, meaning 35 Valued policy, defined 183 Vendor and vendee, see Sales of personal property. W. Wagers, law of 18, 19 Ward, see Guardian Waiver of notice of protest 45 Waiver of lien, see Lien. Warehouseman, definition 96 duties of 96 liabilityof 97 Warranty in sales of personal property, definition 62 representation of sale in 63 what may constitute 63 express warranty 63 implied warranty 63 warranty of title 63 breach of warranty 65 Warranty in insurance. 100 Warranty deeds, see Deeds Way, see Right of way. Wharfinger, definition 96, 184 duties of 96 liabilityof 97 Widow, dower of, see Dower. Withdrawal of ofier 12 when possible _ 12 KF 889 .3 B66 Author Bly, Myron T Vol. Title Copy Business law Date Borrower's Name