?tate doUege of JVgtitultute Jftiiara, ^. 1. Cornell University Library HF 1235.P3 Laws of business for all the states and 3 1924 013 818 905 ||| Cornell University 7 Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924013818905 LAWS OF BUSINESS FOR All the States and Territories OF THE UNION AND THE DOMINION OF CANADA WITH FORMS AND DIRECTIONS FOR ALL TRANSACTIONS. AND ABSTRACTS OF THE LAWS OF ALL THE STATES AND TERRITORIES ON VARIOUS TOPICS. BY THEOPHILUS PARSONS, LL.D., LATE PROFESSOR OF LAW IN HARVARD UNIVERSITY, CAMBRIDGE, AND AUTHOR OF TREATISES ON THE LAW OF CONTRACTS, ON MERCANTILE LAW, ON THE LAW OF PARTNERSHIP, ON THE LAWS OF PROMISSORY NOTES AND BILLS OF EXCHANGE, ON THE LAW OF INSURANCE, AND ON THE LAW OF SHIPPING AND ADMIRALTY. NEW ENLARGED EDITION. Revised to date, with valuable fresh chapters ON Recent Business Legislation. r <^ BY ~ ' CHARLES M. REED. f, <'\ "A NEW YORK \ *f GEORGE H. DORAN COMPANY Copyright, 1878, by THEOPHILUS PARSONS. Coryright, 1893, by S. S. SCRANTON & CO. Copyright, 1900, by THE S. 3. SCRANTON CO. Copyright, 1907, by THE S. S. SCRANTON CO. Copyright, 1 90S, by THE S. S. SCRANTON CO. Copyright, 1909, by THE S. S. SCRAXTON CO. Copyright, 1914, by THE S. S. SCRANTON CO. Copyright, T915, by THE S- S. SCRAXTON CO. Copyright, 1930, by THE S. S. SCRANTON CO. S^H ^Q 79 CONTENTS. CHAPTER I. THE PURPOSE AND USE OF THIS BOOK. PAeE. To fully antl clearly explain the laws of Business, 1 CHAPTER II. BUSINESS LAW IN GENERAL. The Principles on which it Rests, 5 CHAPTER III. , , INFANTS OR MINORS. Form 1. — Promise in Writing, 11 CHAPTER IV. MARRIED WOMEN. Abstract of .the Law of Husband and Wife in the Several States, .... 15 CHAPTER V. AGREEMENT AND ASSENT. Section I. — The Legal Meaning of Agreement, 38 II.— What is an As^t, ' 40 III. — Offers made on 'Time, 41 IV. — A Bargain by Correspondence, 42 v. — What Evidence may be received in reference to a Written Contract, 43 VI. — Custom or Usage, 45 Forms.. Form 2. — General Agreement, SuiSeient for many Purposes, 48 3. — General Agreement, Another Form of, 48 4. — General Agreement with Forfeiture Clause, 4& 5. — General Contract for Mechanics ' Work, ■19 6. — Agreement for Making a Quantity of Manufactured Ar- ticles, 50 iii iv CONTENTS. PAGE. 7. — Agreement to revive Debt discharged by Bankruptcy, .... 50 8, — ^Agreement to revive Debt barred by the Statute of Limi- tations, . . . , 51 9. — Subscription to Build a Church, 52 10.— Subscription to a Y. M. C. A. Building, 52 11. — Agreement to Indemnify Corporation for issue, of New Certificate, 53 12. — Party Wall Agreement, 53 13. — Agreeriient as to Encroachment, 54 -■ ' 14. — ^Agreement for Sale of Land with Forfeiture Clause, 55 15.-^Contract to convey Beal Estate with Provision for Liqui- dated Damages, 56 16. — An Agreement for the Sale and Purchase of an Estate, followed by Special Clauses, 57 17. — Covenants, Provisos, and Agreements, which may be in- serted in the preceding form, : 58 18. — Agreement for the Sale of an Estate by Private Contract, 60 19. — Short Agreement for Sale of Egal Estate with Mortgage for part of Purchase-money, /. 60 20. — ^Agreement for -Sale of Eeal Estate subject to Mortgage and Leases, 61^ 21. — Agreement to be Signed l)y an Auctioneer, after a Sale by , Auction, 63 22. — Agreement to be Signed by the Purchaser, after a Sale by Auction, , 62 23. — An Agreement to make an Assignment of a Lease, 62 24. — Agreement for Damages in laying out or altering Boad, ... 63 25. — Agreement between a Person who is retiring from the Ac- tive Part of a Business, and Another who is to conduct the same for their Mutual Benefit, 63 '. 26. — A brief Building Contract, 65 27. — ^A full and minute Building Contract, 66 CHAPTER VI. , CONSIDERATION. Section I. — The Need of a Consideration, 70 , II. — What is a sufficient Consideration, 71 in. — Illegal Consideration, 73 rV. — Impossible Consideration, 74 V. — Failure of Consideration, 74 CHAPTER VII. BONDS. Essentials of a Bond, 77 "Condition" of the Bond, 77 CONTENTS. ^ PAGK Forms. Form 28. — Simple Bond without Condition, 78 29.— Bond for Payment of Money, with a Condition to that Ef- fect, with Power of Attorney to confess Judgment an- nexed, Y9 30. — Bond with Sureties for Conveyance of a Parcel of Land, . 80 31. — Bond for a Deed, 80 32. — ^Bond in Another Form, for Conveyance of Land, 81 33. — Bond to Secure an Option for Purchase of Land, 81 34. — Bond of a Treasurer of a Corporation, with Sureties, .... 82 35. — Bond of a Clerk to a Firm Employing Him, 82 36. — Bond by Contractor for Performance of Building Contract, , 83 CHAPTER VIII. ASSIGNMENTS. Instruments to which the term is particularly given, . . . . , 83 Forms. Form 37. — Brief Form of an Assignment to be indorsed on a Note, or any Similar JPromise or Agreement, 84 38. — Gfeneral Assignment, with Power of Attorney, 84 39. — Assignment of a Bond, ; 84 40. — Assignment of a Bond, with Power of Attorney, and a Covenant. 85 41. — Assignment of a Judgment, in the form of an Indenture, 85 42. — ^Assignment of Wages, with Power of Attorney, 86 CHAPTER IX. SALES OF PERSONAL PEOPERTY. Section I. — What constitutes a Sale, 87 II. — Delivery and its Incidents, 92 III. — Contracts Void for Illegality or Fraud, 96 IV.— Sales with Warranty, ' 98 v.— The Sale of One's Business, 101 Forms. Form 43. — Bill of Sale of Personal Property, 102 44.— BUI of Sale, another Form, 103 45. — Sale of a Physician's Practice, 103 46. — Conditional Sale of Machinery by means of a Lease, . . ; . 104 ■yi CONTENTS. CHAPTER X. STOPPAGE IN- TRANSITU. page. Derivation and Meaning of the Term, ' 105 Rights of Parties in Goods in Transitu, 106 CHAPTBE XI. GUARANTY. Forms. Form 47. — Guaranty to be indorsed on Note, Ill 48. — Guaranty of a Note on Separate Paper, Ill 49. — Guaranty in Another Way, 112 50. — ^Letter of Guaranty, 112 51. — ^Letter of Continuing Guaranty, 112 52. — Guaranty with Collaterals, uuthorizing Sale, 112 53. — Guaranty with Collaterals, promising Additional Security, or authorizing Sale, '. » . . 113 CHAPTER XII. THE STATUTE OE FRAUDS. Section I.— Its Purpose and General Provisions, 113 ■ II. — Promise to pay the Debt of Another, 114 III. — Agreement not to be performed within a Year, 116 IV.— Contracts for Sale of Goods, 117 v. — The Form and Subject-Matter of Agreement, 118 CHAPTER XIII. PAYMENT AND TENDER. Section I. — How Payment may be made, ! ; . . 119 II. — Appropriation of Payment, 120 , CHAPTER XIV. RECEIPTS AND RELEASES. Remarks on the Nature of Receipts, and Degrees of Fulness thereof, . . 122 , Forms. Form 54. — Receipt for Money, '. 122 55. — Another Form of Receipt for Money, 12a 56. — Receipt for Papers or other Articles, 122 57. — General Release, 123 58. — General Release — Short Form, 124 59.— Mutual General Release by Indenture, 124 60. — ^Release from Creditors to a Debtor, under a Composition, 124 61. — ^Release of all Legacies, . . ." 125 CONTENTS. Vii PAGE. 62." — Belease of a Bond, it being lost, 125 63. — Belease of a Judgment Lien-, 126 64. — Release of a Condition, 127 65. — Release of a Covenant contained in an Indenture of Lease, 127 66. — Release from a Lessor to a Lessee (upon his surrendering Ms Lease) from the Covenants therein, , 128 67. — General Belease of Dower, 128 68.— Release of Dower to the Heir, 129 69. — Belease of Dower in Consideration of an Annuity given by Will, 129 70.— Belease of Bight to Lands, 130 71. — ^Belease between two Traders in Settling Accounts, 130 72. — Mutual Beleases, 131 CHAPTER XV. NOTES OP HAND AND BILLS OF EXCHANGE, DRAFTS AND CHECKS. Section I.^The Purpose of, and the Parties to, such Papers, 132 Form for Additions to a Note of Hand, 135 Forms. ^ Form 73. — Common Form of a Bill of Exchange, 133 74. — Common Form of a Promissory Note, 134 75. — Coupon Note, ■ ■■ ■ 136 Section II. — What is Essential to a Negotiable Note or Bill, 137 Forms. Form 76.^ — Form of a Note given for a Chattel sold, with a Condition preserving the Ownership of the Seller, 139 Section III. — Consideration of Negotiable Paper, 146 IV.— Eights an 674 3. — The Homestead, 674 Abstract of Laws relating to the Collection of Debts, 675 CHAPTER XXXVII. LIENS OP MECHANICS AND MATERIAL MEN FOR THEIR WAGES AND MATERIALS. What is a Lien, 740 Forms. Form 333. — Notice under Mechanic's Lien Law, 741 334.— Bill of Particulars of Mechanic's Claim, 742 335. — Release and Discharge of a. Mechanic 's Lien, 742 336. — Release and Discharge of a Mechanic's Lien, another Form, 743 Abstract of the Laws of all the States relating to Mechanics ' Liens, . 748 CHAPTER XXXVIII. BANKRUPTCY. Exclusive Jurisdiction in All Matters of Bankruptcy is vested in the District Courts of the United States, subject to Appeal to the Cir- cuit Court of Appeals, and to the Supreme Court, 760 CONTENTS. xvii PAGE. Acts of Bankruptcy specified, 761 A Partnership may be adjudged a Bankrupt either in Voluntary or Involuntary Proceedings, ; 762 Filing of Petitions and Bonds, 762 Proof of Claims presented and Trustee chosen, 763 Duties of Trustee, 764 Creditors are entitled to Ten Days ' Notice, etc., 765 Priority Debts, \ 765 "When Bankrupt may apply for Discharge, 766 Voluntary Assignments, 767 Forms. Form 337. — General Letter of Attorney-in-Fact, when Creditor is not Represented by Attorney-at-Law, 768 338.— Special Letter of Attorney in Fact, 769 339.— Proof of Unsecured Debt, 769 340.— Proof of Debt due Corporation, 770 341.— Proof of Debt by Partnership, 771 342. — Proof of Debt by Agent or Attorney, 771 343. — ^Assignment for Benefit of Creditors, 772 CHAPTER XXXIX. THE DISPOSAL OF PROPEETY BY WILL. •Section I.— Wills, 775 ir.— Codicils, , 779 III. — Revocation of Wills, 779 Form 344.— A Will, 780 345.— Copy of a fuller Form of a Will, 781 Abstract of the Laws of all States and Territories concerning Wills, . 783 CHAPTER XL. EXECUTORS AND ADMINISTRATORS. Powers and Duties, of Executors and Administrators, 793 CHAPTER XLI. GUARDIANS. The Eights and Duties, Powers and Liabilities, of Guardians, 796 CHAPTER XLTI. CONSTRUCTION AND INTERPRETATION OF CONTRACTS. Section T. — General Purpose and Principles of Construction, ....'.... 798 II. — Some of the General Rules of Construction, 7^9 III. — On Presumption of Law, 802 IV.— Of the Effect of Custom and Usage, 803 V. — On the Admissibility of Extrinsic Evidence, ........... 807 xviii CONTENTS. CHAPTER XLIII. LEGAL RIGHTS AND OBLIGATIONS OF FAEMEBS. PAGE. Section f.— His Title to his Farm, 810 Subsection 1. — Possession, 810 2. — Inheritance, — • 811 3. — Purchase, ■ - 811 4.^Sales of Land at Auction, 812 Section II. — What one Takes by the Deed of his Farm, 813 Subsection 1.— Boundaries and Descriptions, 813 2.— Contents, : 814 3.— Fixtures 814 4.-^ManurB, 1 ' .".-... 816 5. — ^Eocks, Stories, and Soil, 816 ■ 6. — Adjoining Boads, 816 7.— Treesy ,. 817 Section III. — Trespassing on the Farm, 817 Subsection l.-^Who is a Trespasser, 817 2. — Of the Right of a Farmer to Order off Trespassers, . 818 3. — Responsibility to Trespassers, 818 Section IV.— Farm Ways, 819 v.— Water Eights, 819 VI.— Fire, 820 VII.— Game Animals, 821 VIII.— Domestic Animals, ..:....;:: 822 IX. — Sale with Warranty of Animals, Seeds, Fertilizers, .... 824 Subsection 1. — Of Animals, 824 2.— Of Seeds, 825 3.— Of Fertilizers, 825 Section X.— Hiring of Help, 826 Subsection 1. — Eights and Duties of Help, 826 2. — Liability of Farmer for Wrong-doing of Help, .... 828 Section XI.— Hiring of a Farm, 828 Subsection 1. — Hiring by Lease, 828 2. — Eenewal of Lease, 829 3. — Eemedy for Non-payment of Rent, 829 4. — ^Bight to Vacate Premises and Giv.e up Farm, 830 5. — Apportionment of Bent, 831 6. — Cultivation of the Farm, 832' 'Form 346.^ — Form of a Lease Of a Farm, 832 7. — Hiring on Shares, . ; 833 CHAPTER XLIV. PURE FOOD AND DRUG LAW. Provisions of this Law 834 CONTENTS. • xix CHAPTER XLV. . THE AUTOMOBILE. PAGK Bights and Duties of Owners, 83S CHAPTER XL VI. "WOEKMEN'S COMPENSATION LAWS. Pirst — The Scope of the Law, 847 Second— Nature and Extent of Liability, 849 Third — Compensation for Injuries, 855 Fourth — Procedure, 857 Pif th — Insurance, 858 Abstract of Workmen's Compensation Laws, 859 CHAPTER XLVII. DEPOSITIONS AND AFFIDAVITS. Form 347. — ^For Taking Depositions, 901 348.— For Taking AJfidavits, 903 Glossary of Law Terms, 904 Interest Tables 924 THE LAWS OF BUSINESS CHAPTER I. THE f URFOSE AJSm tTSE OF THIS BOOK. The title of this work indicates, to some extent, its purpose and character; but, as they are in certain respects peculiar, it is thought that some remarks respecting them may make the vol- ume more useful. Many years ago, after more than twenty-five years of practice at the bar, I accepted the office of Dane Profes- sor in the Law School of Harvard University. I employed what- ever leisure the duties of that office left me, in preparing a series of textbooks on Commercial Law. I have published many vol- umes ; and the manner in which they have been received by my professional brethren, calls for my most grateful acknowledg- ments. One of those works was entitled "The Elements of Mer- cantile Law," and was Intended as a general epitome of Com- mercial Law. I began it mainly for the use of lawyers, but at the same time hoping that it might be so written as to be useful to others, who were not lawyers. Before I had made much prog- ress in it, the hope that one hooh could answer these two purposes faded away ; and I finally made that work exclusively for law- yers. But the circumstance that many persons who were not lawyers, and did not intend to be, have bought my works, — ^the remarks that have reached me in relation to them, and particu- larly in reference to that above mentioned, and many other kin- dred facts, — ^have given additional strength to a belief that led me to prepare this volume, for wide and general use. That belief is, that there is a strong and growing disposition, among the men of business of this country, to understand the laws of business. This disposition, and the actual diffusion of this knowledge, have both greatly increased of late years, and I believe could not have been arrested; for this progress is one element of advancing and improving civilization ; and I think it cannot now be prevented. 1 2 PURPOSE AND USE Oi THIS BOOK. The institutions and characteristics of this country have their bearing upon this question. "We have no sovereign but the law ; or rather the people is the sovereign, and the law is their only- utterance. It is a sense of this that has here transferred, in some degree at least, the loyalty which in the kingdoms of the Old World attaches to a person, to the law itself, using this word in its most comprehensive sense. This is a good thing ; not because the law is always wise and good, but because it will more probably become wise and good, if the whole community recog- nize it as entitled to obedience, and therefore entitled to their constant, earnest, and vigorous endeavors to cure its defects, and bring it into harmony with those principles of truth and justice of which it should be the expression. This great duty rests upon us with the stronger obligation because of our greater intelligence and activity of mind, or more general education and wider ex- tent of common knowledge ; all which are none the less facts, al- though they are sometimes used as mere food for vanity, or as topics for adulation. And all these things together seem to lead to the conclusion, that here and now proper efforts should be made to supply all of the community who ask for it, with accurate and practical information concerning those laws which are of the most immediate concern to them. So far as concerns the whole people, their wish, if expressed in the simplest terms, would undoubtedly be, to know the laws which must regulate their conduct and determine their rights. This wish admits of but one question; it is. How far is this thing practicable 1 for so far as it is, its propriety and expediency can hardly be denied or doubted. Indeed, they who would most strenuously oppose any effort to teach the people the law, would do so only on the ground that it is impossible to give to the pub- lic any knowledge of this kind which would be wide enough and accurate enough for use. They would think that the very en- deavor to learn the law, by persons the main business of whose lives must be of a very different kind, would lead only to a super- ficial and erroneous view of the subject; and this, under the name of knowledge, is only the most dangerous ignorance. We should, however, remember, that the people generally, here and elsewhere, must necessarily know a certain amount of law, for without this they cannot live safely in society. For example, men in business must know something of the most general laws PURPOSE AND USE OF THIS BOOK. 3 of business ; as how to conduct their sales, how to make notes, how to collect theih, and the like; and all men must know so much of ordinary law as protects and defines their common and universal rights. Moreover, it will probably be admitted that important mistakes, leading to much loss and difficulty, are every day made, because many do not know those general principles or rules of law which some do know, and which every man in busi- ness might know. The question, therefore, can only be, how much of law it is possible and desirable for men in business to learn ; and what is their best way of learning it. Here let me remark, that few persons, who have not had occa- sion to study and to teach Commercial Law as a whole, are aware of that unity and harmony of its principles, which make it in- deed a system of laws ; or of the prevailing simplicity and rea- sonableness of its rules. An eminent English lawyer has said,, that it was astonishing within how small a, space all the princi- ples of commercial law may be compacted. It is equally true, that the laws of business are generally free from mere techni- cality and obscurity ; and the reason is, that they, a^e for the most part, and substantially, nothing more than the actual prac- tice of the business community, expressed in rules and maxims, and invested with the authority of law. The knowledge which a trader acquires of the laws of trade need not, at all events, be superficial ; for a knowledge of princi- ples, and an intelligent appreciation of them, however limited it may be, should not be regarded as superficial. And these limits need not be narrow. The extent of this knowledge, and its accuracy, thoroughness, and utility, must obviously depend upon the books from which it is acquired, and upon the manner of using those books. Considerations of this kind led me to the belief, that it was possible to make a book, which should place within the appre- hension of every intelligent trader, and of every young man who proposes to engage in any department of business (and this now means almost every man in the community), at the cost of no more time than every one can conveniently give to it, a useful knowledge of all the elements, or general rules and principles, of the' Laws of Business. In other words, I thought it an undeserved reproach of our Laws of Business, to say that they were not intelligible by all, if 4 PURPOSE AND USE OF THIS BOOK. stated with simplicity and accuracy ; and an equally undeserved reproach, of our Mefl of Business, to say that they could not comprehend laws, which were made for them, and were intelli- gible in themselves, and plainly stated. It seemed to me, there- fore, that the time had come, in this country, for a book which no one has ever attempted to make anywhere heretofore. This book should contain all the principles of all the branches of the laws which regulate the common transactions of life, stated with all the. accuracy that care and labor could insure in any book, and so stated that any man of good capacity, with reasonable effort, might understand all of them ; and might, with the help of the Index, find in the volume a true and intelligible answer to the questions which every day arise ; and might, if he were willing to make a regular study of the whole book in course, become acquainted with the rules, and the reasons of the rules, by which all business may be safely conducted. And this book I have endeavored to make. I have compiled it, mainly from the law- books I have already made for the profession. If they are accu- rate and trustworthy, this is so ; and I may be permitted to say, that whatever earnest endeavors could do to make those books trustworthy was done; and that accumulated testimony, which I have no right to disregard, encourages me to hope that I have not labored in this respect in vain. I have made changes which seemed to be required by the in- tended adaptation of this book to all men and not to lawyers only. These are, first, the omission of citations and references to reports and authorities; next, the addition of some element- ary rules and principles and definitions, which would not be nec- essary in a book for lawyers only ; and lastly, the use of common or non-professional language, the general omission of merely technical words, and the full explanation of such words when they are used. If there are those who are preparing for a life of business, or are now engaged in it, who will study this volume, in course, — dwelling on what seems most important, and. examining with care what seems obscure, — I venture to hope that they will find the work so arranged, and the meaning so expressed, that what comes before explains what follows, and every part of it will be intelligible. At the same time, I have labored to make every- thing plain by itself, as far as that was possible, that it might BUSINESS LAW IN GENERAL. 5 not disappoint those who, without reading it in course, look into it for an answer to.queStions as they arise. And for such perr sons I have endeavored to have the Index of Subjects (at the end of the book) exceedingly full and minute. I have added a great variety of Forms. Of course no collec- tion of Forms could be made large enough to meet the exact facts of every case that can arise. But it is possible to give accurate Forms of all sorts; and any person can select the Form nearest to his particular need, and easily make the alterations which the facts of his case require. CHAPTEK II. BtrSIKESS LAW IN GENERAL. All law is divided into what it called, in law books, common law and statute law. We have legislatures, and our fathers had them; and a very large proportion of the laws now binding upon us were made by those legislatures in a formal and regular way. All these are Statutes ; and taken altogether, they- com- pose the Statute Law. Besides this, however, there is another very large portion of our law which was not enacted by our legis- latures ; and it is called the Common Law. In fewer words, all law was regularly enacted, or it was not. If it was, it is statute law ; if it was not so enacted, it is common law. The common law of most of the several States of this country consists, in the first place, of all the law of England — whether statute or common there — ^which was in force in that State at the time of our independence, and recognized by our courts, and which has not since been repealed or disused. And next, of all those universal usages, and all those inferences from, or appli- cations of, established law, whiCh courts in this country have recognized as having among us the force of law. For this com- mon law there is no authority excepting the decisions of the courts ; and we have no certain means of knowing what is or is not a part of the common law, excepting, by looking for it in those decisions. Hence the value and importance of the reported 6 BUSINESS LAW IN GENBEAL. decisions, which are published by official reporters in all of our States. In Louisiana, however, the law is based on the French law in force when this State was a French colony, and which is largely derived from the Roman or Civil Law. And in the Phil- ippines and Porto Rico the Spanish law — also derived from the Civil Law— still prevails to a very considerable extent. A very important part of the common law, especially to all men in business, is what is called, by an ancient phrase, the Law- Merchant. By this is meant the law of merchants ; or, more accurately, the law of mercantile transactions ; and by this again is meant all that branch of the law, and all those principles an" If he saiid, "Sell me that gray horse if he is fit to ride," and the seller sold it knowing he was not fit, he would be liable. It has been much discussed whether a bill of sale, describing the article sold, amounts to a warranty that the article conforms to the description. It seems now to be well settled that it does. •In a recent Massachusetts case, there was a bill of sale as follows : "H. & Co. bought of T. W. & Co. two oases of indigo, $272." THE SALE OF ONE'S BUSINESS. 101 The article sold was not indigo, but principally Prussian blue. No fraud was imputed to the seller, and the article was so pre- pared as to deceive experienced and skilful dealers ia indigo. The naked question was presented, whether the bill of sale con- stituted a warranty that the article sold was indigo. And the court held that it did. Here the warranty implied by the bill of sale was as to the kind of goods. In another case the bill was, "^'Sold E. T. H. 2,000 gallons prime quality winter oil." The thing sold was oil, and winter oil ; but not prime quality. And the Court held that the bill of sale amounted to a warranty that it was of that quality. In an English case, a vessel was adver- tised for sale as ' ' copper fastened ' ' ; and that was held to be a warranty that she was so fastened according to the usual under- standing of merchants. When provisions are sold merely as merchandise there is no implied warranty of their quality; but it is the general rule that where the sale is for immediate consumption — as in the case of a sale by a market man to a customer — ^there is an implied warranty that the article is wholesome and fit for food. It is held, however, in Massachusetts that where the article is selected by the purchaser there is no implied warranty, in the absence of proof of knowledge by the vendor that it is unsound. An inn keeper or caterer who furnishes unwholesome food is liable to any guest who is injured by partaking of it. Section V. THE SALE OF ONE 'S BUSINESS. Such sales are not unf requent in this country ; and the seller always agrees and promises that he will not pursue that trade, business, or occupation again. There are numerous cases, both in English law-books and in our own, which have arisen from bargains of this kind. The law seems now to be settled, that such a contract is wholly void and inoperative, provided the seller agrees to give up his business and never resume it again, at any time or anywhere; that is, without any limitation of space or time; because it is against the public interest that a man should be permitted to cast himself out from his Business or trade for the rest of his life. But the contract-is good, if for a 102 SALES or PERSONAL PKOPERTY. fair consideration the seller agrees not to resume or carry on that business within a certain time, or within certain limits. What these limits must be is not certain. The courts say they must be "reasonable," and made in good faith. A contract not to carry on a business in a certain town would undoubtedly be good. So, we should say, would be a bargain not to do so within a cer- tain State. In one case in Massachusetts, a contract not to use certain machines in any of the United States except two (which were Massachusetts and Ehode Island) was held valid, all of the States but two being considered as a sufficiently defined or limited place ; but this was unusual. The courts generally would sanc- tion such a bargain, if it were limited to only a part of the United States ; as to all New England, for example. In such a contract, it would be better for the parties to agree upon the amount which the seller should pay by way of damages, if he violated his bargain, because it, might be very difficult to prove specific damages ; and such agreement, if it were reasona- ble, would be enforced by law. Such damages, agreed on beforehand, are called liquidated damages. In all cases where damages are demanded, and are not agreed on, they are ea,lled unliquidated damages, and it is the duty of the jury to determine, from the evidence before them, what damages the injured party has suffered, and what amount would indemnify him. (43.) Bill of Sale of Personal Property. Know all Men by these Presents, That I, (name of the seller), of -. , in the county of , and State of , for and in con- sideration of the sum of to me in hand well and truly paid, at or liefore signing, sealing, and delivery of these presents, by (name of the buyer) the receipt whereof I do hereby acknowledge, have granted, bar- gained, and sold, and by these presents do grant, bargain, and sell unto the said (here specify the property sold). To Have and to Hold the said granted and bargained unto the said , his heirs, executors, administrators, and assigns, to their only proper use, benefit, and behoof forever, and T, the said vouch my- self to be the true and lawful owner of the goods and effects hereby sdd, and to have in myself full power, good right, and lawful authority to dispese of the same in manner as aforesaid, and I do, for myself, my heirs, execu- tors, and administrators, hereby covenant and agree to warrant and defend the said (the poods sold) unto the said . , his heirs, executors. FOEMS OF BILLS OF SALE. 103 administrators, and assigns, against the lawful claims and' demands of all persons whomsoever: In Witness Whereof, I, the said , have hereunto set my hand and seal this day of , in the year of our Lord one thousand nine hundred and . Executed and Delivered in Presence of (44.) Another Form of Bill of Sale. Know all Men by these Presents, That I, , of in the county of , and state of , in consideration of dol- lars to me paid by , of said , the receipt whereof is hereby acknowledged, do hereby grant, sell, transfer and deliver unto the said the following goods and chattels, namely : etc. To Have and to Hold all and singular the said goods and chattels to the said and his executors, administrators and assigns, to their own use and behoof forever. And I Hereby covenant with the said grantee that I am the lawful owner of the said goods and chattels; that they are free from all incumbrances; that I have good right to sell the same as aforesaid; and that I will war- rant and defend the same against the lawful claims and demands of aU persons. In Witness, etc. (45.) Sale of a Physician's Practice. Agn^eement made this day of , 19 , between of -, hereinafter called the vendor, and of , hereinafter called the purchaser. 1. Whereas the said vendor has for many years exercised his profession of physician and surgeon at in the county of and state of , and is now desirous of retiring from practice at afore- said, and the said purchaser is desirous of establishing himself as a physician and surgeon at said , now, therefore, the said vendor agrees to sell to the said purchaser, who agrees to purchase, the said practice, and the good will and benefits thereof from the day of next, to- gether with all the fixtures, furniture, medical books, surgical and other in- struments and apparatus, and all the drugs, medicines, bottles and other things now used therein, for the sum of dollars: In confirmation of which purchase, the purchaser, upon the execution of these presents, has paid the sum of doll&,rs by way of deposit and in part payment of said purchase-money. 2. The said vendor further aerees that, on the payment of the residue of said purchase-money, as hereinafter mentioned, he will fully and absolutely deliver over and assign to the said purchaser, his executors, administrators or assigns, the said practice or business, and the good will threeof, for hia 104 SALES OF "PEESONAl. PROPERTY. and their own absolute use and benefit; and likewise, the full and uninter- rupted possession o£ the office in which the said practice is now carried on by him, together with the fixtures, furniture, books, instruments, apparatus, and things now used in and relating to the said practice. 3. The said vendor will introduce and recommend the said purchaser to his patients, friends and others, as his successor; and will use his best en- deavors to promote and increase the prosperity- of the said practice or busi- ness. 4. The said vendor will not practice either as a physician or surgeon, or act directly or indirectly as partner or assistant to or with any other phy- sician or Surgeon practicing either at ■. aforesaid, or elsewhere, within miles thereof. 5. The said purchaser in consideration of the agreements on the part of the vendor hereinbefore contained, hereby further agrees to pay to him, his executors or administrators, the residue of the purchase-money, being the sum of dollars, by instalments as follows : One-half part thereof on the day of ^^.. next, upon receiving the full and peaceable possession of the said practice, office, good will, fixtures, furniture, books, and things hereinbefore mentioned, and the remaining half part thereof on the day of ^ next. In Witness, etc. (46.) Conditional Sale of Macliinery by Means of a Lease. Agreement made the day of , 19 , between of , of tne first part, manufacturer, and of , of the sec- ond part, miU owner. The said parties mutually agree as follows: 1. In consideration of the payments hereby reserved, and of the perform- ance of the conditions and stipulations hereinafter contained, and on the part of the said party of the second part to be performed, the said party of the first part will, on or before the day of - r.cxt, erect and place in the mill of the party of the second part, situated at ■ in the county of and state of , the steam engines, machinery. apparatus and plant particularly described in the schedule hereto annexed, and hereafter called the machinery. 2. The said party of the second part shall hold and be at liberty to use the said machinery for the term of years from the said day of next, at the rent of dollars per annum, payable half-yearly on the day of , and the day of , • in each year during the continuance of said term, such payments making in the aggregate the sum of — dollars (price of the machinery), the first of such payments to be made in advance on the said ^ day of 3. The said party of the second part shall, at his own expense, from time to time, replace and repair all such parts of the said machinery as may be broken, worn out or damaged, and keep, the same in every respect in good working order; and he will not, during the said term, remove any part of the said machinery from the building where the same may be erected, with- out the consent in writing of the said party of the first part, and will not STOPPAGE IN TRANSITU. 105 assign, transfer, underlet, or part with the possession of the same either di- rectly or indirectly. 4. The said party of the second part will punctually pay the rents hereby reserved, and perform all the conditions and stipulations herein contained, and on his part to be performed; and will not do or suffer anything whereby the said machinery or any part thereof shall or may be seized, taken in execu- tion, attached, removed, injured, or destroyed. 5. The said party of the second part shall keep said machinery insured against damage or loss by fire in some office to be approved by the said party of the first part, for at least the sum of dollars, and, will pay the premiums for such insurance, and will forthwith deliver to the said party of the first part the policies of such insurance, and the receipts for the premiums which shall become payable therefor. 6. It is hereby expressly declared that the property in said machinery shall remain in the said party of the first part to all intents and purposes; provided, that the said machinery shall become the absolute property of the said party of the second part on the expiration of the said term, and pay- ment of all the rent hereby covenanted to be paid, and all costs, charges, and expenses provided for under this agreement. 7. In case of the bankruptcy of the said party of the second part, or in case he shall assign, transfer or mortgage the said machinery, or any part thereof, or in case he shall make default in performing and observing any of the covenants, conditions, or agreements herein contained, the said aggre- gate sum of dollars shall become immediately payable to the said party of the first part, and he may, at his option, enter said premises, and every building in which any part of the said machinery may be, and take possession of and remove the said machinery, and may, without the consent of the said party of the second part, sell the same as freely as if this agree- ment had not been made, and retain the amount due, paying any surplus to the party of the second part. In Witness, etc. In many of the States conditional sales must be recorded in the same manner as chattel mortgages. CHAPTER X. STOFFAQE IN TRANSITU. Heee is an instance where a Latin phrase has become English, by general adoption and use. In transitu means "in the trans- it," and the English phrase may just as well be used; but the Latia one is used much oftener. What the whole phrase Stop- page in transitu means, is this. A seller, who has sent goods to a buyer at a distance, and after sending them learns that the 106 STOPPAGE IN TRANSITU. buyer is insolvent, may stop the goods at any time before they reach the buyer. His right to do this is called the right ,of Stop- page in transitu. If the goods are sent to pay a precedent and existing debt, they are not subject to this right. The right exists only upon actual insolvency; but this need not be formal insolvency, or bankruptcy at law; an actual ia- ability to pay one's debts in the usual way being enough. If the seller, in good faith, stops the goods, in a belief of the buyer's insolvency, the buyer may at once defeat this stoppage, and re- claim the goods, by payment of the price. So he may, by a tender of adequate security, if the sale be on credit. The stoppage must be effected by the seller, and evidenced by some act ; but it is not necessary that he should take actual pos- session of the goods. If he gives a distinct notice to the party in possession, whether carrier, warehouseman, middleman, or who- ever else, before the goods reach the buyer, this is enough. But a notice of stoppage in transitu, to be effectual, must be given either to the person who has the immediate custody of the goods; or if to the principal whose servant has the custody, then at such a time, and under such circumstances, as that he may, by the exercise of reasonable diligence, communicate it to his servant in time to prevent the delivery to the consignee. Goods can be stopped only while in transitu; and they are in transitu only until they come into the possession of the buyer. But this possession need not be actual, a constructive possession by the buyer being sufficient to prevent this stoppage ; as if the goods are placed on the wharf of the buyer, or on a neighboring wharf with notice to him, or in a warehouse with delivery of the key to him, or of an order on the warehouseman. But the entry of the goods at the custom-house, without pay- ment of duties, does not terminate the transit. If the buyer has demanded and marked them at the place where they had arrived on the termination of the voyage or journey, personally or by his agent; or if the carrier still holds the goods, but only as the agent of the buyer ; in all these cases the transit is ended. But if the carrier holds them by a lien for his charges against the buyer, the seller may pay these charges and discharge the lien, and then stop the goods in transitu. GUARANTY. 107 If the buyer has, in good faith and for value, sold the goods, "to arrive," bjefore he has received them, and indorsed and de- livered the bill of lading, this second purchaser holds the goods free from the first seller 's right to stop them. But if the goods and bill are transferred only as security for a debt due from the first purchaser to the transferee, the original seller may stop the goods, and hold them subject to this security, and need pay only the specific advances made on their credit, or on that very bill of lading, and not a general indebtedness of the first purchaser to the second. A seller who stops the goods in transitu does not rescind the sale, but holds the goods as the property of the buyer ; and they may be redeemed by the buyer or his representatives, by paying the price for which they are a security; and if not redeemed, they became the seller's, only in the same way as a pledge might become his ; that is, he may sell them at a proper time, and in a proper manner, and with due notice, so that the buyer may pro- 'tect his interests. And if the seller then fails to obtain from them the full price due, he has a claim for the balance upon the buyer. If he gets more than the amount due to him, he must pay over the balance to the buyer or his assignees. An honest buyer, apprehending bankruptcy, might wish to return the goods to their original owner ; and this he could un- doubtedly do, if they have not become distinctly his property, and the seller his creditor for the price. But if they have, the buyer has no more right to benefit this creditor by such an ap- propriation of these goods, than any other creditor by giving him any other goods. CHAPTEK XI. GTTABANTY. A GUAEANTOE is one who is bound to another for the fulfilment of a promise, or of an engagement, made by a third party. This kind of contract is very common. Generally it is not negotia- ble ; that is, not transferable so as to be enforced by the trans- feree as if it had been given to him by the guarantor. No special form or words are necessary to the contract of guaranty ; and if 108 QUAEANTY. the word "guarantee" be used, and the whole instrument con- tains all the characteristics of a note of hand, payable to order or bearer, then it is negotiable. Thus, in a ease in New York, the instrument was as follows: "For and in consideration of thirty-one dollars and fifty cents received of B. F. Spencer, I hereby guarantee the payment and collection of the within note to him or hearer. Auburn, Sept. 25, 1837. (Signed) Thomas Bums." And it was held negotiable. What negotiable means will be more fully explained in the chapter on Notes of Hand and Bills of Exchange. , The guaranty may be enforced, although the original debt can- not; as, for example, the guaranty of the promise of a wife or an infant; and sometimes the guaranty of a debt is requested, and given, for the very reason that the debt is not enforceable at law. But, generally, the liability of the principal measures and limits the liability of the guarantor. And if the creditor agree that the principal debt shall be reduced or lessened in a certain proportion, the obligation of the guarantor is reduced by law ia an equal proportion. A contract of guaranty is construed somewhat strictly. Thus, a guaranty of the notes of one, does not extend to notes which he gives jointly with another. A guarantor who pays the debt of the principal may demand from his creditor the securities he holds, although not an assign- ment of the debt itself, or of the note or bond which declares the debt, for that is paid and discharged. And sometimes the credi- tor will not be permitted to resort to the guarantor until he has collected as much as he can from these securities. Unless the guaranty is by a sealed instrument, there must be a consideration to support it. If the original debt or obligation rest upon a good consideration, this will support the promise of guaranty, if this promise was made at the same time with or prior to the original debt. But if that debt or obligation be first incurred and completed before the guaranty is given, there must be a new consideration for the promise to guarantee that debt, or the guaranty is void. But the consideration need not pass from him who receives the guaranty to him who gives it. Any benefit to him for whom the guaranty is given, or any injury to him who receives it, is a sufSeient consideration' if the guaranty be given because of it. GUARANTY. 109 A guaranty is not binding unless it is accepted, and unless the guarantor has knowledge of this. But the law presumes this acceptance in general, when the giving of the guaranty and any action on the faith of it, by the party to whom it is given, are simultaneous. In New York, wherever the guaranty is absolute, notice of its acceptance is unnecessary, unless expressly or im- pliedly required by the offer of guaranty. But, generally, an offer to guarantee a future operation, especially if by letter, does not bind the offerer unless he has such notice of the acceptance of his offer as would give him a reasonable opportunity of mak- ing himself safe. If the liability of the principal be materially varied by the act of the party guaranteed, without -the consent of the guar- antor, the guarantor is discharged. Many interesting cases have arisen which involve this question. Thus, where a bond was given conditioned for the faithful performance of the duties of the ofBce of deputy collector of direct taxes for eight certain townships, and the instrument of appointment, referred to in the bond, was afterwards altered so as to extend to another township without the consent of the surety, the Supreme Court of the United States held that the surety was discharged from his responsibility for moneys collected by his principal after the alteration. Again, in an English case, the facts were, that, in a bond by sureties for the careful attention to business and the faithful discharge of the duties of an agent of a bank, it was provided "that he should have no other business of any kind, nor be connected in any shape with any trade, manufacture, or mercantile copartnery, nor be agent for any individual or copart- nery in any manner or way whatsoever, nor be security for any individual or copartnery in any manner or way whatsoever." The bank subsequently, without the knowledge of the sureties, increased the salary of the agent, he undertaking to bear one- fourth part of all losses which might be incurred by his discounts. It was held that this was such an alteration of the contract, and of the liability of the agent, that the sureties were discharged, notwithstanding that the loss arose, not from discounts, but from improper conduct of the agent. The guarantor is also discharged if the liability or obligation be renewed or extended by law. As if a bank, incorporated for twenty years, be renewed for ten more, and the officers and busi- 110 GTJAEANTT. ness of the bank go on without change ; the original sureties of the cashier are not held beyond the first term. So a guaranty to a partnership is extinguished by a change among the members, although neither the name nor the business of the firm be changed. But a guaranty, by express terms, may be made to continue over most changes of this kind. A specific guaranty, for one transaction which is not yet ex- . hausted, is not revocable. If it be a continuing or a general guaranty, it is revocable, unless an express agreement, founded on a consideration, makes it otherwise. Whether a guaranty of payment for goods supplied to a cer- tain amount, without further restriction, — as, for example, if A writes to B, " I will be responsible for C 's purchases from you to the extent of $500 "-^is a continuing guaranty to that amount,, or is exhausted when goods to that amount have once been fur- nished, is often a question of some difficulty, and the decisions of the courts on the subject are not uniform. If the guaranty is intended to be limited to a single transaction, therefore, it is important that this should be clearly expressed. , A creditor may give his debtor some accommodation or in- dulgence without thereby discharging his guarantor. It would seem just, however, that he should not be permitted to give him any indulgence which would materially prejudice the guarantor. Generally, a guarantor may always pay a debt, and so acquire at once the right of proceeding against the parly whose debt he has paid. On this ground, it has been held, that where a surety requested the creditor to proceed against the principal debtor, and the creditor refused to do this, and afterwards the debtor became insolvent and the surety was without indemnity, still the surety (or guarantor) was not discharged, because he might have paid the debt, and then sued the party whose debt he paid. In New York, it seems to be the law, that, if the surety requests the creditor to proceed against the principal debtor and he re- fuses, and the principal debtor afterwards becomes insolvent, the surety will be discharged. If, by gross negligence, the creditor has lost his debt, and has deprived the surety of security or in- demnity, the surety must be discharged unless he was equally negligent. If a creditor gives time to his debtor by a binding agreement which will prevent a suit in the meantime, this un- doubtedly discharges the guarantor (unless the surety consents FORMS OF GUARANTY. m to the delay) because it deprives him of his power of acquiring a right of proceeding against the debtor, by paying the debt; for the debtor cannot during that time be sued. If there be a failure on the part of the prmcipal, and the guarantor is looked to, he should have reasonable notice of this. And, generally, any notice would be reasonable which would be sufScient in fact to prevent his suffering from the delay. And if there be no notice, and the guarantor has been unharmed there- by, he is not discharged. If a guaranty purport to be official, — ^that is, if it be made by one who claims to hold a certain office, and to give the promise of guaranty only as such officer, and not personally, — ^the general rule is, that he is not liable personally, provided he actually held that office and had a right to give the guaranty officially. But he would still be held personally, if the promise made, or the rela- tions of the parties, indicated that credit was given personally to the parties promising, and not merely to them in their official capacity ; or if he had no right to give the promise in his official capacity. A guaranty was given for the price of a cargo of iron, and the buyer bargained with the seller to pay him more than the fair price, the excess to go towards an old debt. The guaranty was held to be altogether void, because fraudulent ; and could not be enforced even for the fair price. FORMS or GUARANTY. (4T.) Guaranty to be Indorsed on a Note. For value received I guarantee the payment of the within-written note. (Date.) (Signature.) (48.) , Guaranty of a Note on Separate Paper. For value received I guarantee the due payment of a promissory note dated whereby promises to pay to , dollars, .' in months. (Date.) (Signature.) 112 GUAEANTY. (49.) Guaranty in Another Way. For value received I guarantee that the Tvithin (tiote or bill, or that such a note or iUl, describing it) will be collected and paid if demanded in due course of law. {Date.) {Signature.) (50.) Letter of Guaranty. Sir,— If you will sell to Mr. , of , the goods he wishes to buy {or the goods may be described) to the amount of ^__ {this may he omitted if the guaranty is intended to be of any amount), within year {or days or months, or the time may be omitted if it is not intended to limit it) from the date hereof, I, for value received, hereby promise and guarantee that the price thereof shall be duly paid. {This letter should also state on what terms the goods should be sold, as to credit, delvvery, etc., unless it is intended to leave all this to the buyer and seller.) {Date.) {Signature.) (51.) Letter of Continuing Guaranty. Sir, — I hereby agree to be responsible to you, to the extent of dollars, for the price of any goods {or the goods may be described) which you may hereafter at any time sell to A. B. When goods or stocks or other securities are given as collateral security for borrowed money or any other debt, an instrument is sometimes given, the intention of which is to guarantee that the collaterals should be and remain sufficient to secure the indebted- ness. It may be in one of the following forms, as the bargain re- quires. These are sometimes called "margin guaranties." (52.) Guaranty with Collaterals authorizing Sale. Whereas, I have deposited with as collateral security for payment at maturity of {here describe the notes or debts guaranteed). Now this Witnesseth, That in the event of the non-payment at maturity of any or all of these I hereby authorize the said or his as- signs, to sell the above {the collaterals) at public or private sale, or at the brokers' board, without notice to me, and apply proceeds to pay- ment of said and all necessary expenses, holding myself responsible for any deficiency. THE STATUTE OF FRAUDS. 113 In Witness Whereof, I have hereunto set my hand and seal, this da,j of , one thousand nine hundred and (Signature.) (Witness.) (53.) Guaranty with Collaterals, promising Additional Security or Authorizing Sale. Having Borrowed this Day of (the sum borrowed) on the fol- lowing collaterals (here describe the collaterals). I Herehy Agree, in case the market-price of the said stock should fall at any time during the continuance of the loan to an amount insufficient to cover the sum loaned, -with per cent, margin added thereto, that in such event I will, on demand, deposit additional security to be approved by him, which shall be sufficient to keep the coUaterals thus deposited equal to a sum per cent, above said loan, and so as often as said collaterals shall diminish; and that, in default thereof, the said shall have power to sell at public or private sale, vfithout notice, all, or any of the said securities (as well as any others he may hold), to pay the amount of the said loan, with all interest and charges thereon, and for so doing, I fully release him of all claims, actions, and causes thereof. CHAPTER XII. THE STATUTE OF FRAIIDS. Section I. ITS PURPOSE AND GENERAL PROVISIONS. The Statute of Frauds, so called, was passed in the 29th year of Charles II. (1677) for the purpose of preventing frauds and perjuries, by requiring in many cases written evidence of a con- tract. In nearly all our States a similar statute has been en- acted. But no two of the statutes of the different States agree exactly in all their provisions. They do, however, agree sub- stantially ; and we shall' give in this chapter the prevailing and nearly universal.rules for the construction and application of this statute. It is often of very great importance in commercial transactions. Those provisions which especially relate to busi- ness law are contained in the fourth and seventeenth sections. 8 114 THE STATUTE OF FEAUD8. By the fourth section, it is enacted that "no action shall be brought whereby to charge any executor or administrator, upon any special promise, to answer damages out of, his own estate ; or whereby to charge the defendant, upon any special promise, to answer for the debt, default, or miscarriages of another per- son; or to charge any person upon any agreement made upon consideration of marriage; or any contract for sale of lands, tenements, or hereditaments, or any interest in or concerning them ; or upon any agreement that is not to be performed within the space of one year from the making thereof ; unless the agree- ment, upon which such action shall be brought, or some memo- randum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." By the seventeenth section, it is enacted that "no contract for the sale of any goods, wares, and merchandise, for the price of £10 sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually re- ceive the same, or give something- in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." The second and fifth classes of the fourth section, and the whole of the seventeenth, relate to our present subject. The second clause prevents an oral guaranty from being enforced at law ; but if money be paid on one, it cannot be recovered back. Section II. A PROMISE TO PAT THE DEBT OP ANOTHER. It is very often difficult to say whether the promise of one to pay for goods delivered to another is an original promise, as to pay for one's own goods, and then it need not be in writing, or a promise to pay the debt or guaranty the promise of him to whom the goods are delivered, and then it must be in writing. If it be a promise to pay the debt of another, it is said to be a collateral promise, and not an original promise. The question may always be said to be : To whom, did the seller give, and was A PROMISE TO PAY THE DEBT OF ANOTHER. II5 authorized to give, credits This question tlie jury will decide, upon consideration of all the facts,, under the direction of the court. If a seller sues one to whom he did not deliver the goods, on the ground that this other promised to pay for them, then the question is, Did this other promise to pay for them as for his own goods ? for then the promise need not be in writing. Or did he promise to pay for them as for the goods of the party receiving them ? and then it is a promise to pay the debt of another, and must be in writing. If, on examination of the books of the seller, it appears that he charged the goods to the party who received them, it will be difficult, if not impossible, for the seller to main- tain that he sold them to the other party. But if he ehargea them to this other, such an entry would be good evidence, and, if confirmed by circumstances, strong evidence that this party was the purchaser. But it cannot be conclusive ; for the party not receiving the goods may always prove, if he can, that he was not the buyer, and that he promised only as surety for the party who was the buyer ; and, consequently, that his promise cannot- be enforced if not in writing. And, in general, in determining this question, the court will always look to the actual character of the transaction, and the intention of the parties. The courts both in England and in America have often en- deavored to illustrate this question. Thus, in an early English, case, the court said : " If two come to a shop, and one buys, and the other, to gain him credit, promises the seller, ' If he does not pay you, I will, ' this is a collateral undertaking, and void, with- out writing, by the Statute of Frauds. But if he says, 'Let him have the goods, I will be your paymaster, ' this is an undertaking as for himself, and he shall be intended to be the very buyer, and the other to act but as his servant. ' ' So, in a case in Maryland, the court said : " If B gives credit to C for goods sold and de- livered to him, on the promise of A to 'see him paid,' or 'to pay him for them if C should not,' in that case it is the immediate debt of C, for which an action will lie against him, and the prom- ise of A is a collateral undertaking to pay that debt [and must be in writing] , he being only liable as a surety. But where the party undertaken for is under no liability himself, the promise is an original undertaking of the party promising, and binding upon him without being in writing. Thus, if B furnishes goods to C, on the express promise of A to pay for them, and if A 116 THE STATUTE OF FRAUDS. says to him, 'Let C have goods to such an amount, and I will pay -you, ' and the credit is given to A, in that case C being under no liability, there is nothing to which the promise of A can be col- lateral ; but A being the immediate debtor, it is his original un- dertaking, and not a promise to answer for the debt of another ;" and therefore need not be in writing. Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some purpose of his own, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the perform- ance of it may incidentally have the effect of extinguishing the liability of another. If an old debt is extinguished by a new promise, this promise is considered as an original one, and not within the requirement of the statute. If there be an oral promise to pay the debt of another, and also to do some other thing, this last can be enforced at law, if this other thing, and so much of the promise as relates to it, can be severed from the debt of the other and the promise relating to that debt; for although that promise must be in writing, the other may be oral. Section III. AN AGREEMENT NOT TO BE PERFORMED VFITHIN A TEAR. Under the fifth clause in the fourth section, it is held that an agreement which may be performed within the year is not af- fected by the statute, as the words, "that is not to be performed within one year," do not apply to an agreement which, when made, was, and by the parties was understood to be, fairly capable of complete execution within a year, without the intervention of extraordinary circumstances, — although in point of fact its exe- cution was extended much beyond the year. So where one agreed orally, for one guinea, to give another a number of guineas on the day of his marriage, it was held that this promise was not within the statute, that is, not one which the statute required to be in writing, because he might be married within a year, and the promisor was therefore bound by it. So where one agreed orally never to go into the staging business in a certain place, as this contract could last only while the promisor lived, and he might (Jie within a year, he was held to be bound by it. CONTRACTS FOE SALE OF GOODS. 117 Section IV. CONTRACTS FOB SALE OP GOODS. Under the seventeentK section of the statute it is held in this country that shares in railroad and manufacturing companies, and generally, in all corporations and joint-stock companies, are "goods, wares, or merchandise," within the meaning of the statute, and that an agreement for their purchase and sale must therefore be in writing. Instead of the £10 specified in the English statute, the sums mentioned^ in the statutes of the different States are generally from thirty to fifty dollars. Under the first clause of the section there must not only be a delivery of the goods, but they must be received and accepted by the buyer. As to what is sufficient to constitute such accept- ance, the intention of the buyer, the nature of the goods, and the circumstances of the case are all material. If he intends to retain possession of the goods, and manifests his intention by a suitable act, it is an actual acceptance. He has a right to ex- amine the goods and ascertain their quantity and quality before determining whether to accept them or not, and a retention by him for a time sufficient for this examination, and no more, is not an acceptance. Under the second clause of this section "earnest" is regarded as a part payment of the price. It must have some value, how- ever small, and must be actually given and received, and given and received as "earnest." A part payment, to bring the con- tract within the statute, must be an actual one, made at the time the contract is entered into; agreement to pay and subsequent payment are not enough. As to contracts of sale for future delivery, there is some con- flict of authority, but the weight of opinion seems to be that where the article is one actually in existence at the time the contract is made, or is one that the vendor usually has for sale, the statute applies ; but not where the article is to be specially manufactured for the vendee. 118 THE STATUTE OF FEAUDS. Section V. THE FORM AND SUBJECT MATTER OF THE AGREEMENT. The "agreement" must be in writing; but generally, in this country, the writing need not contain or express the consider- ation, which may be proved otherwise. In several of the States, however, as in Alabama, Minnesota, Nevada and Oregon, the consideration must be expressed ; and this is the rule in England, and also in New Hampshire and Georgia except as to guaranties. Nor need the agreement be all on one piece of paper. For it is sufficient if on several pieces, as in several letters, which, how- ever, relate to one and the same business, and may fairly be read together as the statement of one transaction. But it must appear from the papers that they are so connected. The "signature" may be in any part of the paper, — the begin- ning, middle, or end, except in those of our States in which the statute has the word ' ' subscribed ' ' instead of ' ' signed ; " in which case it should be in the usual place at the bottom. If the name and the agreement be printed, it is sufficient ; hence, a printed shop-bill, with the name of the seller, as usual, at the beginning, if delivered to the buyer, is generally sufficient to charge the seller in an action for refusing to deliver the goods. It may be further remarked, that the operation of the statute has been always limited to such contracts as have not been exe- cuted in any substantial part, and therefore remain wholly executory. For if they had been executed substantially, in good part, they are binding, although only oral. In Massachusetts, the Statute of Frauds also provides (3d sec- tion) that no action shall be brought to charge any person upon, or by reason of, any representation or assurance made concern- ing the character, conduct, credit, ability, trade, or dealings of any other person, unless it be made in writing, and signed by the party to be charged. And there are provisions substantially similar to this in the statutes of Maine and Vermont. HOW PAYMENT MAY BE MADE. ng CHAPTER XIII. PAYUENT AND TENSEB. Section I. HOW PAYMENT MAT BE MADE. The obligations wMch arise out of most mercantile contracts are to be satisfied by payment of money. The parties may always agree to any specific manner of payment, and then that becomes obligatory on the creditor as well as the debtor. As, by deduct- ing the amount to be paid from a debt due to the debtor either from the creditor or from any one else. Or the amount may be made, by agreement, payable by a bill or note. If the debt is to be paid by a biU, it must be such a bill as is agreed upon, and this must be tendered by the debtor. But the word "bill" does not necessarily mean an "approved bill"; and if this phrase be itself used, it means only a bill to which there is no reasonable objection ; that is, one which ought to be approved. In the absence of any especial agreement, the only payment known to the law is by cash, which the debtor must pay when it is due, or tender to the creditor. The tender should, properly, be in coin, or in biUs made a legal tender by law, and must be so if that is required ; but a tender in good and current bank-bills is sufficient, unless it be objected to because they are not money. Generally, if the tender be refused for any express and spe- cific reason, the' creditor cannot afterwards take advantage of any informality, to which he did not object at the time of the tender. The tender may be of a larger sum than is due. But a tender of a larger sum, if made with a requirement of change or of the balance, is not good. Nor must it be accompanied with a demand Or condition that any instrument or document shall be delivered ; nor that the sum tendered shall be received as all that is due ; nor that a receipt in full shall be given. But a simple receipt for so much money paid may be demanded. We have already seen 120 PAYMENT AND TENDER. that, if a receipt be given, it is only strong evidence of payment, but not conclusive. And even if it be "in full of all demands," it is still open to explanation or denial by evidence. A lawful tender, and payment of the money into court, is a good defense to an action for the debt. But the creditor may break down this defense by proving that, subsequently to the tender, he demanded the money of the debtor, and the debtor refused to give it. If the buyer or debtor give, and the seller or creditor receive, a negotiable note or bill for the sum due, this is not anywhere absolute and conclusive payment. In Maine and in Massachu- setts the law presumes that such note or bill is payment of the debt, unless a contrary intention is shown. In nearly all the States of this Union but those two, and ra the Supreme Court of the United States, it is not payment, unless the intention of the parties that it should be so is shown. In New York, it has been held that the debtor's own promissory note is not payment, even if it be intended or expressly agreed that it should be. If a cred- itor, who receives from his debtor any bill or note, negotiates or sells it for value to a third party, without making himself liable, the bill or note is payment, although it be dishonored, because it has been good to the creditor, and he has received the avails of it ; and if the law did not hold that the bill had paid the debt, he could sue the original debt, and then he would have the value of the bill, or payment, twice. Not so, however, if he negotiates it in such a way that he is himself liable upon it ; for if he pays it, he loses what he sold it for, unless he can recover his debt from his debtor. Section II. APPEOPEIATION OP PAYMENT. Ip one who owes several diebts to his creditor makes to him a general payment, it may be an important question to which of those debts this payment shall be appropriated ; for some of them may be secured, and others not, or some of them may carry inter- est, and others not, or some of them be barred by the Statute of Limitations, and others not. There is no doubt that the payor may appropriate his payment, at the time of the payment, at his own pleasure. And if he does APPROPRIATION OF PAYMENT. 121 not exercise this right, the receiver may, at the' time of payment, make the appropriation. But if neither party does this at that time, and at a future period the question comes up as to which party may then make the appropriation, or rather, how the' law will then appropriate the paj^ment, it is then the better and pre- vailing rule, that, if the court can ascertain, either from the words used, or from the circumstances of the case, or from any usage, what was the intention and understanding of the parties at the time of the payment, that intention will be carried into effect. And if this cannot bef ascertained, then the court will direct such appropriation of the payment as will best protect the rights and interests of both parties, and do justice between them. And one reason for this conclusion would be, that the law would presume that this was the original intention of the parties. A very general rule, which would indeed be always adopted in the absence of especial reason to the contrary, is, to apply the payment first to the oldest debt, until that is satisfied, and then go on applying the payment to the other debts in the order of their age. If A owes a debt to B, on B 's own account, and another debt to B as trustee for somebody, and A pays B a sum of money with- out appropriating it, B cannot apply it all to the debt due him on his own account ; but must divide it between that debt and the debt due to him as trustee, in proportion to their respective amounts. Because it is his duty as trustee to take as good care of the debts due to him for another, as of those due to him on his own account. We have spoken of a "bill or note," and notes are sometimes called bills; so bank-notes are often called bank-bills. But the legal meaning of "bill" is always a draft or order on somebody to pay money. A note is a promise to pay. See chapter on notes and bills. 122 RECEIPTS AND RELEASES. CHAPTER XIV. KECEIFIS AND RELEASES. A RECEIPT is only an acknowledgment that a sum of money has been paid. It may be in one word, as when, under a bill of par- cels, the seller writes the word "Paid," and signs it. More com- monly the words are, "Received Payment." Formerly it was usual to add the words "Errors Excepted." Then it grew cus- tomary to write the initial letters "E. E." instead of the words; but all this is unnecessary. If there be an error in the receipt, or in the paper receipted, the law permits the party injured by it to explain and correct the error, although there be no express reservation or exception of errors. Receipts are of all degrees of fulness, from the single word "paid," to those which relate the particulars for which the re- ceipt is given, and the manner in which the money was paid or the thing delivered. I give the following forms : (54.) {Date) Received from , dollars. (55.) (Signature.) (Date) This day I have received from , dollars, on ac- count of (Signature.) (56.) (Date) This day the following (papers, or other articles, enumerating and describing them) were delivered to me by '-, (add, on account of, or in execution of, the promise or bargain, describing it; and, if they are delivered for any particular purpose, describe that), and I hereby acknowl- edge the receipt of them. •■■) Every receipt is open to evidence, not only to explain it, but to contradict it. Herein releases diifer from receipts. A release gives up some right or claim which the releasor had against the releasee. It is in the nature of a contract, and therefore cannot be controlled or contradicted by evide?^ce, unless on the ground FOEMS OF EELEASES. 123 of fraud. But if its words are ambiguous, or may have either of two or more meanings, evidence is receivable to determine the meaning. Like every other contract, a release requires a consideration, and is of no force without one. But here comes in the rule of law as to a seal. The general rule is, as has been stated before, that a seal implies, or is the same as, the assertion of a consideration; and therefore it is always customary to put a seal to a release. But a release, even with a seal, if it can be shown to have been given without any consideration whatever, can be set aside. And the payment of a part of an ascertained debt in satisfaction of the whole is not a sufficient consideration. Hence a release or receipt in full given on the partial payment of a debt is no bar to an action to recover the balance of the debt unless there was some added consideration, such as a new responsibility incurred by a third party, or a composition deed among creditors. It is al- ways best to state in the release itself that it was given for a con- sideration, and what the consideration is. A release properly drawn, and duly signed and sealed, is a complete defence to an action grounded on any of the debts or claims released. The following forms are for releases of various kinds : (57.) A General Kelease. Know all Men by these Presents, That I, {the name of the releaser) of for and in consideration of the sum of , to me paid by of , have remised, released, and forever discharged, and by these presents do, for me, my heirs, executors, and administrators, remise, release, and forever discharge the said , his heirs, executors, and ad- ministrators, of and from all and aU manner of action and actions, cause and causes of action, suits, debts, dues, sum and sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agree- ments, promises, variances, damages, judgments, extents, executions, claims, and demands whatsoever in law and in equity, which against the said , I ever ,had, now have, or which I, my executors or administrators hereafter can, shall, or may have, for, upon, or by reason of, any matter, cause, or thing whatsoever, from the beginning of the world to the day of the date of these presents. In Witness Whereof, I hereunto set my hand and seal this day of , 19 124 EECEIPTS AND EELBA8ES. (58.) A General Eelease — Short Form. Enow all Men by these Presents, "That I of ' in considerar tion of dollars to me paid by , the receipt of which is here- by acknowledged, do hereby, for myself and my heirs, executors and admin- istrators, release and discharge the said , his heirs, executors and administrators, from all claims, demands, and causes of action of every kind and nature which I now have, or may hereafter have, against the said by reason of any matter or thing whatsoever to the time of th" execution of those presents. In Witness Whereof, I have hereunto set my hand and seal this day of , 19 (Signature.) {Seal.) Executed in presence of (59.) A Mutual General Eelease by Indenture. This Indenture, Made between A. B. of , and C. D. of , witnesseth, that the said A. B. doth, by these presents remise, release, and forever quitclaim, unto the said C. D., all and all manner of actions, (as in No. 57) ; and this indenture further witnesseth, that the said C. D. by these presents, doth remise, release, and forever quitclaim, unto the said A. B., all and all manner of actions {as 'before). In Witness Whereof, etc. (60.) A Release from Creditors to a Debtor, under a Composition. To all Persons to whom these Presents may come, we who have hereunto set our hands and seals, creditors of of , send greeting. Whereas, the said is indebted to us his said creditors, in several sums of money, which he is not able 'fully to satisfy and discharge; we therefore have agreed, and do hereby agree, to accept of the sum of in full payment and satisfaction of all the debts, owing to us respectively at the date hereof, by and from the said which is paid by or for the said {t\e name of the debtor) to (the names of the persons to whom the money is to be paid for the creditors releasing) , for the use of, and to the intent that the same may be shared and divided amongst us his said creditors, in proportion and according to the debts to us severally due and owing: Now therefore know ye, that for the consideration aforesaid, each of us, the said creditors who have hereunto set our hands and seals, for him and herself, his and her heirs, executors, and copartners, doth by these pres- ents, remise, release, and forever discharge the said , his heirs, executors, . and administrators, of and from our said several debts, and all and all manner of action and actions which against the said , each and every of us the said creditors now hath, or which each and every of our FORMS OF RELEASES. 125 heirs, executors, or administrators, respectively, hereafter may, can, or ought to have, claim, or demand for, upon, or by reason of the said several and respective debts to us severally due and owing, or for or by reason of any other matter, cause, or thing whatsoever from the beginning of the world. In Witness Whereof, etc. (61.) A Release of all Legacies. Know all Men by these Presents, That I, , of , have re- mised, released, and forever quitclaimed and by these presents do for me, my executors and administrators remise, release, and forever quitclaim unto of , gentleman, executor of the last will and testament of , late of , deceased, and to the heirs, executors, and administrators of the said , all legacies," gifts, bequests, sum and sums of money and demands whatsoever, bequeathed and given unto me the said , in and by the last will and testament of , deceased, and all manner of actions and suits, sum and sums of money, debts, duties, reckonings, accounts, and demands whatsoever, which I the said ever had, now have, or that I, my executors or administrators, can or may, at any time or times hereafter, have, challenge, or demand against the said , his executors, administrators, or assigns, for or by reason of any matter, cause, or thing whatsoever, from the beginning of the world until the day of the date hereof. In Witness Whereof, etc. (62.) A Release of a Bond, it being Lost. To all to whom these Presents may come, (name of releaser) sendeth greeting. Whereas by his bond or obligation, bearing date (recite the bond), as by the said bond or obligation, and the condition there- of may appear: And whereas the sum of mentioned in the said bond, with all the interest for the same, is paid and satisfied unto me the said , in full discharge for the said bond or obligation : And whereas the said bond or obligation is lost, or at present mislaid, so that it cannot be found to be delivered up to the said , to be cancelled : Now know ye, that I the said for the consideration aforesaid, have remised, released, and quitclaimed, and by these presents do, for me, my executors and administrators, remise, release, and forever quitclaim unto the said , his heirs, executors, and administrators, as well the said recited bond or obligation, as all such sums of money as therein are mentioned to be due and payable, unto me the said , my executors, administrators, or assigns; and also all actions, suits, cause and causes of action, accounts, debts, reckonings, sums of money, judgments, executions, and demands what^ soever, which I, the said ever had, now have, or that I, my execu- tors, administrators, or assigns, or any of us, can or may ha-ve, for or against the said , his executors or administrators, for, or by reason of, the said recited bond or obligation, or any other matter, cause, or thing whatso- 126 RECEIPTS AND RELEASES. ever, concerning the same, from the beginning of the world to the day of the date hereof. In Witness Whereof, I the said have hereunto set my hand and seal this day of , 19 (Signature.) (Seals.) In Presence of (The following covenant may he inserted before "In witness.") And I, the said , for me, my executors and administrators, ilo covenant, to and with the said , his executors and administra- tors, that if I the said , my executors or administrators, or any of us, at any time hereafter, do find or can obtain the said recited bond or obligation, then I, the said , my executors or administrators, or some of us, shall and will, within two months next after the said obligation shall be found as aforesaid, deliver, or cause to be delivered, the said bond or obligation, unto the said , his executors or administrators. (63.) A Belease of a Judgment Lien. This Indenture, Made the day of , in the year one thou; sand nine hundred and , between ; of , party of the first part, and of , party of the second part, wftnesseth: Whereas, Judgment was rendered on the day of , in the year one thousand nine hundred and , in an action in the court for the county of , and state of , between plaintiff and defendant, in favor of the Said against the said for the sum of ■ — as appears by the records of said court. Now this Indenture Witnesseth, That the said party of the first part, in consideration of the sum of to him duly paid at the time of the sealing and delivery of these presents, the receipt whereof is hereby acknowl- edged, has granted, released, discharged and set over, and by these presents does grant, release, discharge and set over, unto the said party of the second part, the following described premises, to wit: (description of premises re- leased) . Together with the hereditaments and appurtenances thereto belonging; and all the right, title and interest of the said party of the first part, of, in and to the same, to the intent that the lands hereby conveyed" may be re- leased and discharged from the said above-mentioned judgment, and from all lien or incumbrance that has attached to the same by reason of the re- covery of the said judgment, as free and clear in all respects as though said judgment had not been rendered. To have and to hold, the lands and prem' ises hereby released and conveyed, to the said party of the second part, his heirs and assigns, to his and their only proper use, benefit and behoot forever, free, clear and discharged of and from all lien and claim, under and by virtue of the judgment aforesaid. In Witness Whereof, The said party of the first part has hereunto «et |iis hand and seal the day and year first above written. In Presence of (Signature.) (Seals.) FOEMS OF RELEASES. 127 (64.) A Belease of a Condition. Know all Men by these Presents, That I, , of , for divers good considerations me hereunto moving have remised, released, and quit- claimed, and by these presents, for me, my executors, administrators, and as- signs, do remise, release and quitclaim unto of :, his heirs, executors, administrators, and assigns, as well one proviso or condition, as all and every the sum and sums of money, specified in the same proviso or condition, contained or comprised in one pair of indentures bearing date , made between me, the said of the one part, and the said of the other part, and also all and all manner of actions and suits, cause and causes of actions and suits, for or concerning the said proviso or condition. In Witness Whereof, I the said have hereunto set my hand and seal this day of , 19 (Signature.) (Seal.) In Presence of (65.) A Belease of a Covenant contained in an Indenture of Lease. To all Persons to whom these Presents may come, (name of releaser) sendeth greeting. Whereas in and by an indenture of lease, bearing date , made between , of the one part, and the said of the other part, there is contained a covenant in these words following, viz. (recite the covenant verbatim, as therein contained) whereunto relation being had, it doth at large appear : Now know ye, that I, the said , for divers good causes and considerations, me hereunto moving, have remised, released, and quitclaimed, and by these presents for me and my executors and administrators do remise, release, and quitclaim unto the said , his executors and administrators, the said covenant, grant, clause, agreement, and article, before rehearsed or recited, and all and every other matter, thing and things specified, declared, and contained in the same covenant, clause, and agreement, and all the benefit, profit, advantage, and commodity, that by any manner of means, may or might arise, grow, come, or happen to me the said , for or by reason of the same covenant, clause, article, or agree- ment, or any word, sentence, matter, thing, or things therein contained, so that the said , his executors and assigns, and every of them, from henceforth forever, shall be fully acquitted, released, and discharged against me the said , my executors and administrators, and every of us, of, from, and for the said covenant, grant, clause, article, and agreement before rehearsed or recited, and of, from, and for, everything and things, touching the same (but this present release shall not in anywise extend to any other covenant, clause, or article in the said indenture contained). In Witness Whereof, I the said , have hereunto set my hand and seal this day of , 19 . (Signature.) (Seal.) In Presence of 128 RECEIPTS AND RELEASES. (66.) A Belease from a Lessor to a Lessee (upon his surrendering his Lease) from the Covenants therein. To all Persons to whom these Presents may come, (name of releaser) sends greeting: Whereas the said by his indenture of lease, bear- ing date did demise unto a messuage in at a cer- tain rent, for a certain term of years, of which about years are yet to come and undetermined, in which said lease are contained covenants for repairing the said premises, and other covenants, on the part of the said to be performed. And whereas, by agreement between the said '■ — and the said , hath delivered up the said recited lease, and surrendered the same, and all his interest and term in and to the said house and premises : Now therefore know ye^ that the said '—, in consideration thereof, doth hereby, for himself,- his heirs, executors, and ad- ministrators, remise, release, and forever discharge the said , his executors and administrators, of and from all and every the covenants and agreements, in the said recited lease contained, by and on the part and be- half of the said , his executors and administrators, to be done and performed, and from all actions, suits, costs, charges, payments, damages, claims, and demands whatsoever, in law and equity, for or concerning the same in any manner of wise. In Witness Whereof, I, the said , have hereunto set my hand and seal this day of , 19 (Signature.) (Seal.) In Presence of (67.) A Belease of Sower. To all to whom these Presents shall come, (name of releaser) sends greeting: Know ye, that the said , the party of the first part to these presents, for and in consideration of the sum of , lawful money of the United States, to her in hand paid at or before the ensealing and delivery of these presents, by of the secpnd part, the receipt whereof is hereby acknowledged, hath granted, remised, released, and for- ever quitclaimed, and by these presents doth grant, remise, release, and for- ever quitclaim, unto the said party of the second part, his heirs and assigns forever, all the dower and thirds, right and title of dower and thirds, and all other right, title, interest, property, claim and demand whatsoever, in law and equity, of her, the said party of the first part, of, in, and to (here de- scribe the estate the dower in which is released) so that she, the said party of the first part, her heirs, executors, administrators or assigns, nor any other person or persons, for her, them, or any of them, shall not have, claim, challenge, or demand, or pretend to have, claim, challenge, or demand, any dower or thirds, or any other right, title, claim, or demand whatsoever, of, in, or to the same, or any part or parcel thereof, in whosesoever hands, seisin, or possession, the same may or can be, and thereof and therefrom shall be utterly barred and excluded forever by these presents. rOEMS OF EELEASES. 129 In Witness Whereof, The said party of the first part to these presents hath hereunto set her hand and seal, the day of , in the year of our Lord one thousand nine hundred and . {Signature.) {Seal.) In Presence of (68.) A General Belease of Dower to the Heir. Enow all Men by these Presents, That I, , widow of '. , late of , as well for and in consideration of dollars, to me paid, at -or before the ensealing and delivery qf these presents, by my son , the receipt whereof I do hereby acknowledge, and for the love and affection which I have to my said son, have granted, remised, released, and forever quitclaimed, and by these presents do grant, remise, release and forever quitclaim unto the said , his heirs and assigns forever, all the dower and thirds, right and title of dower and thirds, and all other right, title, interest, property claim, and demand whatsoever, in law and in equity, of me the said of, in, and to any and all lands, wherever situated, of which my late husband, the said , died seized and pos- sessed or of which he was seized and possessed at any time during the exist- ence of the marriage between us, so that neither T, the said , my heirs, executors, or administrators, nor any other person or persons for me, them, or any of them, shall have, claim, challenge, or demand, or pretend to have any dower or thirds, or any other right to claim or demand of, in, or to the said premises, but thereof and therefrom, shall be utterly debarred and excluded, forever, by these presents. In Witness Whereof, etc. (69.) A Release of Dower in Consideration of an Annuity given by Will. To all Persons to v7hom these Presents may come, {name of releaser) widow and residuary legatee of , late of , deceased, sendeth greeting. Whereas the said , in and by his last will and testament, duly signed, sealed, published, and declared in my presence and with my ap- probation, bearing date , did settle and secure unto and upon me the said , an annuity of to be paid nnto me half-yearly, by equal payments, in lieu and full satisfaction of the dower or thirds at com- mon law, which I might otherwise have, claim, or be entitled unto, out of all and every the lands, tenements, and hereditaments whatsoever, of my said late husband, deceased, or of, in, to, or out of the reversion or remainder, rents, issues, and profits thereof: Now know ye, that I the said , for and in consideration of the said annuity so secured to me as aforesaid, and in pursuance and part performance of the said last will and testament of my said late husband, do hereby declare myself fully satisfied and con- tented therewith, and do hereby remise, release, and forever quitclaim unto of , and of , trustees, appointed in and by 130 RECEIPTS AND RELEASES. the said last will and testament of my said late husband (in their actual possession and seisin now being) their heirs and assigns, all and all manner of dower in and to the said premises, but thereof and therefrom, shall be ut- terly debarred and excluded, forever, by these presents. In Witness Whereof, etc. (Signature.) (Seal.) In Presence of (70.) A Belease of Bight to Lands. Know all Men by these Presents, That I (name of releaser) of _, in consideration of to me paid by (name of releasee) the receipt of which is hereby acknowledged, have remised, released, and forever quitclaimed, and by these presents do remise, release and forever quit- claim unto the said and his heirs, all the estate, right, title, inter- est, use, trust, claim, and demand whatsoever, both at law and in equity, which I the said - have, of, in, to, or out of, all and singular the fol- lowing described parcel of land (here describe the land) so that neither I, the said , my heirs or assigns, or any other person or persons in trust for me or them, or in my or their name or names, or in the name, right, or stead of any of them, shall or will, can or may, by any ways or means what- soever, hereafter have, claim, challenge, or demand, any right, title, or in- terest, property, claim, and demand, of, in, to or out of the same, or any of them, or any part thereof, but that I the said , my heirs, and as- signs, and every of them, from all estate, right, title, interest, property, claim, and demand, of, in, to, or out of the said or any of them, or any part thereof, are, is, and shall be, by these presents forever excluded and debarred. In Witness Whereof, etc. (71.) A Release between two Traders on Settling Accounts. Whereas sundry accounts, current and otherwise, and divejs dealings in trade have been subsisting for a long time past between of , trader, and of , trader, which said accounts and dealings, the said and have balanced and adjusted, whereby it ap- pears that nothing remains due from the one to the other; and whereas, therefore, to prevent any future disputes concerning the said accounts and dealings, and to confirm the said adjustment, the said and have mutually agreed to give reciprocal releases from each other. Now know all men by these presents, that the said (one of the parties) (for the consideration abovesaid, and to prevent all future disputes) for himself, his executors, and administrators, doth remise, release, and forever quitclaim unto the said (the other party) his executors and admin- istrators, all and all manner of action and actions, cause and causes of ac- tion, suits, debts, dues, sum and sums of money, accounts, reckonings, bonds, specialties, covenants, contracts, controversies, agreements, promises, vari- FORMS OF EELEASES. 131 anees, damages, extents, executions, claims and demands whatsoever, both at law and in equity, which against the said his the said now hath or ever had, on account of their said mutual dealings, or for or by reason of any other cause, matter, or thing whatsoever, from the beginning of the world to the day of the date of these presents. • And the said (tTie other party) (for the consideration abovesaid, and to prevent all future disputes) for himself, his executors, and admin- istrators, doth remise, release, and forever quitclaim unto the said (the first party), his executors and administrators, all and all manner of action and actions, cause and causes of action, suits, debts, dues, sum and sums of money, accounts, reckonings, bonds, specialties, covenants, contracts, controversies, agreements, promises, damages, extents, executions, claims, and demands whatsoever, both at law and in equity, which against the said , his executors and admiuistrators, the said now hath or ever had, on account of their said mutual dealings, or for or by reason of any other cause, matter, or thing whatsoever, from the beginning of the world to the day of the date of these presents. In Witness Whereof, we have hereunto set our hands and seals, this day of , in the year (Signatwes.) {Seals.) In Presence of (72.) Mutual Bel«ases. Whereas, of , and of , have heretofore had certain claims and demands, each against the other, which claims and demands have been adjusted and settled, so that now neither of said parties has any claim or demands against the other. Xow he it Known that, in consideration of the premises, each of said parties, for himself and his heirs, executors and administrators, doth hereby release and discharge the other of said parties, his heirs, executors and ad- ministrators from all claims, demands and causes of action of every kind and nature whatsoever both at law and in ' equity ' to the date of these presents. In Witness Whereof, The said parties have hereunto and to a duplicate hereof set their hands and seals this day of , 19. — {Signatures.) {Seals.) Executed in presence of 132 NOTES OP HAND, BILLS OF EXCHANGE, ETO. CHAPTER XV. NOTES or HAND AND BILLS OF EXCHANGE, DRAFTS AND CHECKS. Section I. THE PURPOSE OF, AND THE PARTIES TO, SUCH PAPERS. These instruments are usually negotiable. By negotiable paper is meant evidence of debt which may be transferred by indorsement or delivery, so that- the transferee or holder may sue the same in his own name, and as if it had been made to him originally; or, in other words, it means paper, that is, bills of exchange or promissory notes, or drafts, or checks, payable to the order of a payee, or to bearer. The rules of law on the subject of negotiable paper are more exact and technical than those of any other department of Mer- cantile Law. They reach, on many points, an extreme nicety, which makes it difficult to express them intelligibly to persons who do not already possess some familiarity with the subject. All difficulty of this kind could have been easily avoided by me by omitting any notice of these nice points. But it was thought better to mention them, one and all, for these are the things an intelligent man of business should know ; and although the rules stated, especially those in reference to presentment, demand, notice, and some other subjects, may seem to be intricate and difficult, they require, it is believed, only careful consideration to be fully understood. While the general principles of the law relating to negotiable, instruments have been the same in all parts of the country, there have been minor differences in the laws of the several States. In order to make the law uniform throughout the country, an act prepared under the auspices of the American Bar Association, and known as the "Uniform Negotiable Instrument Law," has been recently adopted and is in force in nearly all the States. Where and when bills of exchange were invented is not certain- ly known. They were not used by any ancient nations, but have been employed and recogiiized by most commercial nations for COMMON FORM OF A BILL OF EXCHANGE. 133 some centuries. A still more recent invention is the promissory negotiable note, which, in this country, for inland and domestic purposes, has taken the place of the bill of exchange very gen- erally. Besides these two, bills of lading, and some other docu- ments, have a kind of negotiability, but it is quite imperfect. The utility of bills and notes in commerce, arises from the fact that they represent money, which is the representative of the market value of everything; and many of the peculiar rules respecting negotiable paper are derived from this representation, and in- tended to make it adequate and effectual. A negotiable bill of exchange is a written order whereby A orders B to pay to C or his order, or to hearer, a sum of money absolutely and at a certain time. (73.) Common Form of a Bill of Exchange. $ New York, January , 19 (lays (or months) after sight, (or At sight,) pay to the order of C. dollars. Value received, and charge the same to account of (Signed) A. To B. A is the Drawer, B the Drawee, and C the Payee. If the bill is presented to B, and he agrees to obey the order, he "accepts" the bill, and this he does in a mercantile way by writing the word "Accepted" across the face of the bill, and also writing his name below this word ; then the Drawee becomes the Acceptor. If C, the payee, chooses to transfer the paper and all his rights under it to some other person, he may do this by writing his name on (usually across) the back; this is called indorsement, and C then becomes an Indorser. The person to whom C thus transfers the bill is an Indorsee. The Indorsee may again transfer the bill by writing his name below that of the former Indorser, and the In- dorsee then becomes the second Indorser ; and this process may go on indefinitely. If the added names cover all the back of the note, a piece may be wafered on to receive more. In France, this added piece is called "allonge," and this word is used in some law books, but not by our merchants. Promissory notes of hand are written in many ways, which, however, differ only in the different words in which they express 134 NOTES OF HAND, BILLS OF EXCHANGE, ETC. the same thing. We will first give the full Form of a technically aecTirate note, and afterwards of the more usual forms : (74.) For value received, I promise John Smith to pay to him or to his order, one thousand dollars in three months from this day, with interest from date. Henby Simmons. But promissory notes are seldom, if ever, written in this way in practice. They are shortened and simplified in a great va- riety of ways, mercantile usages having given a meaning to ex- pressions which the law accepts and enforces. Some of the more common forms in use are as follows : $1,000 5%oo- New York, January 5, 1900. Three months after date, I promise to pay to the order of John Smith, one thousand 5%qq dollars, at the North River Bank, value received. Hbney Simmons. If it is intended that more than one person shall be liable on the note, the following is a customary form : $1,000 B%oo- New York, January 5, 1900. Value received, we jointly and severally promise to pay to Bobinson, Wellman & Co., or order, one thousand b^qq dollars in three months from date. "With interest" may be added if that is agreed upon, other- wise it bears no interest until after it is due. So it may be "on demand," in which case it bears no interest until after demand is made ; ' ' after date " or " from date, ' ' should be written, although the law would supply these words. If the note be signed by more than one person, all the signers, whether the note says "I promise" or "We promise," are liable jointly ; but in the latter case only jointly, and not jointly and severally unless the note says so. Where the promise is joint, suit must be brought against all the promisors together ; where it is joint and several the holder may elect whether to sue all jointly or to confirm his claim to one or more of the individual promisors. In the latter ease he may re- cover the whole amount of the note from one promisor, leaving the latter such remedies for contribution as he may have against the others. COMMON FOEMS OF PEOMISSOEY NOTES. 135 Generally speaking, notes are not made payable at any par- ticular place. But they may be made payable at any bank, or the promisor 's own house or office, or wherever else he chooses. The effect of making a note payable at a certain place is this: In this country neither a promissory note nor a bill of exchange, drawn payable at a certain place, nor a bill accepted payable at a certain place, need be presented at that place in order to sus- tain an action against the maker of a note or the acceptor of the bill ; but he may show, by way of defence,- that he was ready at that place with fiinds to pay the note or bill, and then he will escape all damages and interest. And if he can show a positive loss from the want of such presentment, — as, for instance, by the subsequent failure of a bank where he had placed funds to meet the note or bill, — ^he will be discharged from his liability on the paper to the amount of the loss. But the drawees of the bill and the indorsers of the bill or note are discharged by a neglect to demand payment at such specified place. In some States, Indiana for example, it is customary to add "without relief from valuation and appraisement laws"; and also, ' ' if the note is not paid at maturity five per cent, shall be added and collected as attorney's fees." If the note be secured by mortgage, coupon notes are sometimes attached, each of which is for six months' interest. "We give below a Form for such additions to a note of hand, given in Chi- cago to a lender in Boston : $2,000. Chicago, Idlinois, May 8th, 1900. Three (3) years after date, for value received, I promise to pay to . or order, the principal sum of Two Thousand Dollars, with interest thereon at the rate of Six (6) per cent, per annum, payable semi-annually, on the 8th days of November and May, in each and every year until said principal sum is fully paid, both principal and interest payable at the office of , in Boston, Massachusetts. The several instalments of interest aforesaid for said period of Three (3) years are further evidenced by Six (6) interest notes of even date herewith. And I agree that if default be made on the payment of any one of the interest instalments at the time and place the same become due as above, and if said default shall continue for twenty days thereafter, then if the legal holder or holders of the principal note shall so elect, at any time after said twenty days, the principal sum of Two Thousand Dollars shall at once and without notice of such election made, become due and payable. This note is secured by Trust Deed. 136 NOTES OF HAND, BILLS OF EXCHANGE, ETC. (75.) Coupon Note. Chicago, Illinois, May 8th, 1900. Due to or order. Sixty PoUars on the 8th day of November, A. D. 1900, without grace, at the office of , Boston, Massachusetts, with interest at the rate of six per cent, per annum after maturity, being for an instahnent of interest due on that day upon my principal promissory note of even date herewith, payable to or order, three (3) years after its date, for the sunj of Two Thousand (2,000) Dollars secured by trust deed. (Five other similar coupon notes for interest are added.) Notes of this kind are often accompanied by a power of attot- ney to confess judgment, in the form shown in Section IX of this Chapter. It is quite important to have a clear idea of the difference be- tween the parties to a note, and the parties to a bill of exchange. If A makes a note to B, then A promises to pay, and is the prom- isor, and B is the promisee, or payee. But if it be payable to B or order, B may write his name across the back, that is, may in- dorse it, and is an indorser. And if he directs, over his signature on the back, that the note be paid to any person in particular, such payee is now an indorsee. But when a bill is drawn, no- body promises, in words, to pay it. A orders B to pay to C. If B, when requested, says he will not do as ordered, the law sup- poses A, the drawer, to have promised that he would pay if B did not. If B " accepts, ' ' the law now supposes that B promises C to pay the bill to him. Now B, being the acceptor, is held by the law just as a maker of a note is, because he is supposed to have promised in the same way. A, the drawer, is held just as the first indorser of a note is held, because he is supposed to have promised to pay if B did not. If the bill was negotiable, that is, payable to C, or his order, then may indorse the bill, and al- though his name is the only one on the back of the bill, he is treated in law only as second indorser, because the drawer is bound in the same way as a first indorser. And if D then puts his name below G's he is treated as third indorser, and so on. For the rights, obligations, and duties of all these parties, see the subsequent sections. ' We repeat, that a negotiable promissory note is a written promise to pay to a certain person or his order, or to bearer, at WHAT 18 ESSENTIAL TO A NEGOTIABLE NOTE. 137 a certain time, a certain sum of money ; and lie who signs this is called the Maker or the Promisor ; the other party is the Prom- isee or Payee. The payee of such a note has the same power of indorsement as the payee of a bill of exchange. If the note be not payable ' ' to order, ' ' nor to ' ' bearer, " it is then not negotiable ; these words "or order" or "to bearer" being the words which make it negotiable. The maker of a negotiable note holds, as has been said, the same position as the acceptor of a bill, the drawer the same as the first indorser of a note ; that is, a party holding a note and seeking payment .of it looks first to the maker, and then- to the indorser ; one holding a bill looks first to the drawee or acceptor, and, on his failure, to the drawer. Neither indorsement, nor acceptance, nor making, is complete until delivv,ry and reception of the bill or note, or acceptance; and a defendant may show that there was no legal delivery of the paper. The law of negotiable paper first defines a bill or note, and determines what instruments come under these names, and then describes and ascertains the duties and obligations of all the parties we have named above. We shall follow this order. Section II. WHAT IS ESSENTLiL TO A NEGOTIABLE NOTE OR BILL. A WRITTEN order or promise may be perfectly valid as a written contract or promise, but, although made ' ' to order, ' ' will not be negotiable, unless certain requisites of the law-merchant are complied with. The difference between a note that is negotiable and one that is not, is very important in many respects. One of these is as to the operation of the trustee process, or foreign attachment, or garnishee process, as it is sometimes called. If A owes B a hundred dollars, C, a creditor of B, may trustee A, and A must then pay to C what he owes to B. And this is so, even if A have given his note to B for the hundred dollars, if the note be not negotiable, that is, not to B or order, unless A has actual notice that the note has been assigned for value to a third person. But if the note be negotiable and not overdue, A cannot be trusteed. The reason is, that if he is obliged to pay the money to C, and B 138 NOTES OF HAND, BILLS OF EXCHANGE, ETC. should indorse the note to D for value, and D take it honestly, A must pay the note toD, and so would have to pay it twice. But if the note is not negotiable, B cannot indorse it, and A is safe in paying the money over. Another very important difference is that defenses, such as want or failure of consideration, which could have been made against . the original payee, are not open as against the bona fide indorsee of a negotiable note who has taken it before it is overdue. 1. The Promise Must Be Absolute and Definite. — The promise of the note and the order of the bill must be absolute. Words expressive of intention only do not make a promissory note, and a mere request without an order does not make a bill of exchange. But no one word, and no set of words, are abso- lutely necessary ; for if from all the language the distinct prom- ise or positive order can be inferred, that is sufScient. The time of payment is usually written in a bill or note; if not, it is payable on demand. The time of payment must not depend on a contingency. In fact, any contingency apparent on the face of the instrument prevents it from being a negotiable note; and the happening of the contingency does not cure it. And the payment promised or ordered must be of a definite sum of money. A negotiable bill of exchange or promissory note must be pay- able in money only, and not in goods or merchandise, or prop- erty of any kind, or by the performance of any act. If payable in "current funds," or good "bank-notes," or "current bank- notes," this should not be sufficient on general principles; some courts, however, construe this as meaning notes convertible on demand into money, and therefore as the same thing as money, and call the note negotiable. A bill or note may be written upon any paper or proper sub- stitute for it, in any language, in ink or pencil. A name may be signed or indorsed by a mark; and, though usually written at the bottom, it may be sufficient if written in the body of the note ; as, "I, A B, promise," &c. ; unless it can be showii that the note was incomplete, and was intended to be finished by signature. If not dated, it will be considered as dated when it was made; but a written date is prima facie evidence (this means evidence which may be overcome by opposite and better evidence, but until FORM OF A NOTE GIVEN FOB A CHATTEL SOLD, ETC. I39 SO overcome is sufficient) of the time of making. The amount is usually written in figures at the corner or bottom. If the sum is written at length in the body, and also in figures at the corner, the written words control the figures, and evidence is not admis- sible to show that the figures were right and the words inaccurate. But in an American case, a promissory note, expressed to be for ' ' thee hundred dollars, ' ' and figures in the margin, $300, was held to be a good note for three hundred dollars, if the maker when he signed it intended "three" when he wrote "thee" ; and whether such was his intention was a question for the jury. And the omission of such a word as "dollars," or "pounds," or "ster- ling, ' ' may be supplied, if the meaning of the instrument is quite clear. It has been just said that any contingency apparent on the face of the' instrument prevents it from being a negotiable note. Hence it is not safe to write in the body of the note, or in con- nection with the promise, any condition or contingency. But, if what is so written in no way affects the promise itself, the note may still be negotiable. Thus, in some parts of this country, persons who sell a machine, or other thing, on a credit, sometimes take a promissory note payable to the seller or order, and containing an additional clause, providing that, until the note is paid, the property in the thing sold (or the ownership of it) shall be and remain in the seller. Such notes are often made in the following form : (76.) Form of a Note given for a Chattel sold, with a Condition preserv- ing the Ownership of the Seller. $ (Place and date) 19^_ On the day of , 19 — , I of , County of and State of , promise to pay , or order dollars at the First National Bank in , with interest at per cent, per annum until paid. And it is further agreed that the title to the (reaper) for which this note is given shall remain in said (the seller) until this note is fully paid. Value received (Witness.) • (Signature.) On the back of this note is sometimes the following statement : 140 NOTES OP HAND, BILLS OF EXCHANGE, ETC., Statement made for the Fwpose of obtaining Credit. I own acres of land in my own name in the Town of __, County of , and State of , which is worth at a fair valuation, $ . It is not incumbered by mortgage or otherwise, except the amount of $ , and the title is perfect in me in all respects. I have stock and personal property to the amount of $ over and above my debts and liabilities. The above property being worth over and above my debts, liabilities, and exemptions at least five times the amount of the within note. The question has arisen whether such a note is negotiable. Suppose the seller of the chattel, who is payee of the note, sells the note and indorses it for value to an innocent indorsee ; then the buyer finds that he was cheated, and puts in this defence of fraud when he is sued on the note by the indorser. He can make this defence if this note be not negotiable; but he cannot make i t if it be negotiable. I should say it was negotiable ; and that the only effect of the condition or provision annexed to the promise, was, that it operated much as a mortgage of the thiag, by the buyer, back to the seller, to secure the payment. In some States such a note must be recorded like a chattel mortgage. 2. The Payee Must Be Designated. — The payee should be distinctly named, unless the bill or note be made payable to bearer. If it can be gathered from the instrument, by a reason- able or necessary construction, who is the payee, that is enough. The note may be made payable to the promisor or his order; that is, a man may say, I promise to pay to my own order ; and such note is nothing until the promisor not only signs it, but indorses it. A note indorsed in blank is always transferable by delivery, just as if it were made payable to bearer; because any holder may write over the indorsement an order to pay to himself. In- dorsements are either indorsements in ilank, by which is meant the name of the indorser and nothing more, or indorsement in full, which are so called when over the name of the indorser is written, "pay to A B." (By A B we mean the name of the person to whom the note or bill is indorsed.) These two kinds of indorsements are fully explained subsequently in section VI of this chapter. A note to the order of the promisor himself, and indorsed by him in blank, is therefore much the same thing as a WHAT IS ESSENTIAL TO A NEGOTIABLE NOTE. 141 note to bearer. But it is quite commonly used in our mercantile cities, because the holder can always pass it away without indors- ing if he chooses, or can put his name on it as second indorser if he likes to. If the indorsee be named, and the note get into the possession of the wrong person of the same name, this .person neither has nor can give a title to it. If the name be spelt wrong, evidence of intention is receivable. If a father and son have the same name, and either of them has possession of the note and in- dorses it, this would be evidence of his rightful ownership. If neither payable to bearer, nor to the maker's or drawer's order, nor to any other person, it would be an incomplete and invalid instrument. A note to a fictitious payee, with the same name indorsed by the maker, would undoubtedly be held to be the maker's own note, either payable to bearer, or to himself or order, by another name, and so indorsed. If a blank be left in a bill for the payee's name, a bona fide holder may fill it with his own, the issuing of the bill in blank being an authority to a bona fide holder to insert the name. And if the name of the payee be not the name of a person, as if it be the name of a ship, the instrument is pay- able to bearer. A note payable to different persons in the alter- native, that is, to one or the other of them, is not a good promis- sory note. A bill or note ' ' to the order of ' ' any person is the same as if to him ' ' or his order, ' ' and may be sued by him without in- dorsement. 3. Of Ambiguous and Ieeegulab Instruments. — The law in relation to protest and damages makes it sometimes important to distinguish between a promissory note and a bill of exchange, because, by law, a foreign bill of exchange, if unpaid, should be protested, but not a promissory note ; but it is a common prac- tice to protest promissory notes when they are not paid. The rule in general is, that, if an instrument be so ambiguous in its terms that it cannot be certainly pronounced one of these to the exclusion of the other, the holder may elect and treat it as either. As if written, "Value received, in three months from date, pay the order of H. L. $500. (Signed) A. B.;" and an address or memorandum at the bottom, "At Messrs. E. F. & Co." 4. Op Bank-Notes. — Bank-notes or bank-bills are promissory notes of a bank, payable to bearer ; and, like all notes to bearer, the property in them passes by delivery. They are intended to 142 NOTES OF HAND, BILLS OF EXCHANGE, ETC be used as money ; and, while a finder, or one who steals them, has no title himself against the owner, still, if he. passes them away to a bona fide holder, that is, a holder for value without notice or knowledge, such owner holds them against the original owner.- And if the bank pays them in good faith on regular pre- sentment, the owner has no claim. They pass by a will be- queathing money. They are a good tender, unless objected to at the time because not money. Forged bills, given in payment, are a mere nullity. Bills of a bank which has failed, but of which the failure is unknown to both parties, are now, generally, put on the footing of forged or void bills. But if the receiver of them, by holding them, and by a delay of returning or giving them up, injures the payer and impairs his opportunity or means of indemnity, the receiver must then lose them. 5. Of Checks on Banks. — A check on a bank is undoubtedly a billof exchange; but usage and the nature of -the ease have introduced some important qualifications of the general law of bills in its application to checks. A cheek requires no acceptance, because a bank, after a customary or reasonable time has elapsed since deposit, and while still in possession of funds, is bound to pay the checks of the depositors. The drawer of a check is not a surety, as is the drawer of a bill, but a principal debtor, like the maker of a note. Nor can the drawer of a check complain of any delay whatever in the presentment; for it is an absolute ap- propriation, as between the drawer and the holder, to the holder, of so much money in the banker's hands ; there it may lie at the holder's pleasure. But delay is at the holder's risk; for if the bank fails after he could have got his money on the check, the loss is his. If the bank before he presents his check pay out all the money of the drawer on other checks, he may then look to the drawer. If one who holds a cheek as payee, or otherwise, transfers it to another, he has a right to insist that the cheek shall be presented in the course of the banking hours of that day, or at farthest the next; that is, he is not responsible for the failure of the bank to pay, unless it is so presented, provided it would then have been paid. And if the party receiving the check live else- where than where the bank is, it seems that he should send it for collection the next day; and if to an agent, the agent should present it, at latest, in the course of the day after he received it. WHAT IS ESSENTIAL TO A NEGOTIABLE NOTE. 143 If the cheek be drawn when the drawer neither has funds in the bank, nor has made any arrangement by which he has a right to, draw the check, the drawing it is a fraud, and the holder may bring his action at once against the drawer, without presentment or notice. . Checks are. seldom accepted. But they are often "certified" or marked by the bank as good, and this binds the bank as an acceptor. Checks are often payable to bearer, but more frequently are drawn payable to a payee or his order; for this guards against loss or theft, because the check will not be paid unless the payee writes hi^ name on it ; and it gives to the drawer, when the check is paid and returned by the bank to him, what is the same as the receipt of the payee. Generally, a check is not payment until it is cashed ; , then it is payment if the money was paid to the creditor, or the check had passed through his hands. A bank cannot maintain a claim for money lent and advanced, merely by showing the defendant's check paid by it, because the general presumption is, that the bank paid the check because it was drawn by a depositor against funds. While the death of a drawer countermands his check, if the bank pay it before notice of the death reaches it, it is dis- charged. This would seem to be almost a necessary inference from the general purpose of banks of deposit, and the use which merchants make of them. In Massachusetts it is provided by statute that a bank may pay a depositor's cheek or demand draft on presentation within ten days after its date, notwithstanding his death. If a bank pay a forged check, it is so far its own loss, that the bank cannot charge the money to the depositor whose name was forged. But the bank could recover the money back from one who presented a forged cheek, and was paid, provided the payee, if innocent, lost no opportunity of indemnity in the ^jneantime, and could be put in as good a position as if the bank had refused to pay it. But if somebody must lose, the bank should, because it is the duty of the bank to know the writing of its own depositors. If it pay a check. of which the amount has been falsely and fraudulently increased, it can charge the drawer only with the original amount. But if the drawer himself causes or facilitates the forgery, as by so carelessly writing it, or leaving it in such 144 NOTES OF HAND, BILLS OP EXCHANGE, ETC. hands, that the forgery or alteration is easy, so that it may be called his fault, and the bank is innocent, then the loss falls on the drawer. If many persons, not partners, join in a deposit, they must join in a check ; but if one or more abscond, a court of equity will permit .the remainder to draw the money. 6. Of Accommodation Paper. — ^An accommodation bill or note is one for which the acceptor or maker has received no consider- ation, but has lent his name and credit to accommodate the draw- er, "payee, or holder. Of course he is bound to all other parties, precisely as if there were a good consideration ; for, otherwise, it would not be an effectual loan of credit. But he is not bound to the party whom he thus accommodates ; on the contrary, that party is bound to take up the paper, or to provide the accommo- dation acceptor, or maker, or indorser, with funds for doing it, or to indemnify him for taking it up. And if, before the bill or note is due, the party accommodated provides the party lending his credit with the necessary funds, he cannot recall them ; and if he becomes bankrupt, they remain the property of the accom- modation acceptor, or maker, who, if sued on the bill or note, can charge the party accommodated with the expense of defend- ing the suit, even if the defense were unsuccessful, if he had any reasonable ground of defense, because the defense was for the benefit of the party accommodated; inasmuch as he must repay the accommodation party if he pays the bill or note. 7. Of Foreign and Inland Bills. — Bills of exchange may be foreign bills, or inland bills. Foreign bills are those which are drawn or payable in a foreign country; and for this purpose, each of our States is foreign to the others. Inland bills are drawn and payable at home. Every bill is, on its face, an inland bill, unless it purports to be a foreign bill. If foreign on its face, evidence is admissible to show that it was drawn at home. If a bill be drawn and accepted here, but afterwards actually signed by the drawer abroad, it is a foreign bill. If a foreign bill be not accepted, or be not paid at maturity, it should at once be pro- tested by a notary public. Inland bills are generally, and prom- issory notes. frequently, protested; but this is not generally re- quired by the law. The holder of a foreign bill, after protest for non-payment, or for non-acceptance, may sue the drawer and in- dorser, and recover the face of the bill, and, in addition thereto, his damages, which damages on protest are generally adjusted in OP THE LAW OF PLACE. I45 this country by various statutes, — which give greater damages as the distance is greater; and an established usage would supply the place of statutes if they were wanting. 8. Op the Law of Place. — The different States of the Union are, as to questions arising under Mercantile Law, foreign coun- tries as to each other. Important questions sometimes arise in the case of foreign bills (as well as in some other cases), depend- ent upon what is called the Law of Place, the Latin phrase for which, Lex Loci, is often used. In general, every contract is to be governed by the law of the place where it is made. Thus, if a bill is drawn in France, and there indorsed in a way which is sufScient here, but insufficient there, the indorsement would here be held void. But if a contract entered into in one place is to be performed in another, as in the case of a note dated, of a bill drawn, in one State, but payable in another, the prevailing rule is, that the law of the place where the note is payable construes and governs the contract. Therefore, if a bill be drawn in Eng- land, payable in France, the protest and notice of dishonor must be regulated by the law of France. But one who makes such a note may elect, for many purposes, which law shall govern it. Thus, if he makes it in New York, and it is payable in Boston, he may promise to pay the legal interest of New York, and will be bound to this payment in Boston, although the legal interest in Boston is less ; but if there be no such express promise, the inter- est payable will be that of the place where the note is payable. While the law of the place of the contract interprets and con- strues it as a debt, the law of the place where it is put in suit — which is called the Law of the Forum, or Court — determines all questions as to remedy ; that is, all questions which relate to the legal means of recovering the debt. Thus, in general, the statutes of limitation of the place of the court are applied. But if a cause of action relating to any special subject-matter which has a definite location, as a parcel of land has, be barred by a statute of limitations where the subject-matter is situated, it is barred everywhere. A promisor, not subject to arrest in the country where the note is made, maybe arrested under the laws of the country where the note is sued. It will always be presumed, in the absence of testimony, that the law of a foreign country is the same with that of the country in which the suit is brought. If a difference in this respect is a ground of defense, or of action, it must be proved by evidence. 10 146 NOTES OP HAND, BILLS OP EXCHANGE, ETC. Section III. the consideration of negotiable papee. 1. Exception to the Common Law Rule, in the Case of Negotiable Papek. — By the common law of England and of this country, as we have seen, no promise can be enforced, unless made for a consideration, or unless it be sealed. But bills and notes payable to order, that is, negotiable, are, to a certain extent, an ex- ception to this rule. Thus, an indorsee cannot be defeated by the promisor showing that he received no consideration for his prom- ise; because the promisor made an instrument for circulation as money ; and it would be fraudulent to give to paper the credit of his name, and then refuse to honor it. But as between the maker and the payee, or between indorser and indorsee, and, in general, between any two immediate parties, the defendant may rely on the want of consideration; that is, if an indorsee suss the maker, and the maker says he had no consideration for the note, this is no defense ; but if the indorsee sues his indorser, and the indorser shows that the indorsee paid him nothing, this would be a good defense; and so it would be if the payee sued the maker. So, if a distant indorsee has notice or knowledge, when he buys a note, that it was made without consideration, he can- not recover on it against the maker, unless it was an accommo- dation note, or was intended as a gift. Thus, if A, supposing a balance due from him to B, gives B his negotiable note for the amount, and afterwards discovers that the balance is the other way, B cannot recover of A ; nor can any third or more distant indorsee who knows these facts before buy- ing the note. But if A gives B his note wholly without consider- ation, for the purpose of lending him his credit, or for the pur- pose of making him a gift to the amount of the note, and C buys the note with a full knowledge of the facts, he will never- theless hold A, although B could not. If the note was bought honestly for a fair price, the buyer should recover its whole ambunt. Every promissory note imports a consideration; that is, none, in the first place, need be proved ; but when want of consideration is relied on in defense, and evidence is given on one side and the other, the burden of proof is on the plaintiff to satisfy the jury that consideration was given. -WHAT THE CONSIDEEATION MAY BE. 147 If an indorser, sued by an indorsee, shows that the note was originally made in fraud, he may require the holder to prove that he paid consideration; but if this be proved, he must pay the whole of the note, unless he was himself defrauded by the holder. And if an accommodation note be discounted in violation of the agreement of the party accommodated, the holder can still recover, provided he received the note in good faith, and for valuable consideration. 2. Of "Value Received." — "Value received" is usually writ- ten, and therefore should be ; but is not necessary. If not writ- ten, it will be presumed by the law, or may be supplied by the plaintiff's proof. If expressed, it may be denied by the defend- ant, and disproved. And if a special consideration be stated in the note, the defendant may prove that there was no consider- ation, or that the consideration was different^ If "value re- ceived ' ' be written in a note, it means received by the maker from the payee ; if the note be payable to the bearer, it means received by the maker from the holder. In a bill, ' ' value received ' ' means that the value was received from the payee by the drawer. But if the bill be payable to the drawer's own order, then it means received by the acceptor from the drawer. 3. What the Consideration May Be. — A valuable consider- ation may be either any gain or advantage to the promisor, or any loss or injury sustained by the promisee at the promisor's request. A previous debt, or a fluctuating balance, or a debt due from a third person, might be a valuable consideration. So is a moral consideration, if founded upon a previous legal consider- ation ;' as, where one promises to pay a debt barred by the statute of limitations, or by infancy. But a merely moral consideration, as one founded upon natural love and affection, or the relation of parent and child, is no legal consideration. No consideration is sufficient in law if it be illegal in its nature ; and it may be illegal because, first, it violates some positive law, as, for example, the Sunday law, or the law against usury. Sec- ondly, because it violates religion or morality, as an agreement for future illicit cohabitation, or to let lodgings for purposes of pros- titution, or an indecent wager ; for any bill or note founded upon either of these would be void. Thirdly, if distinctly opposed to public policy ; as an agreement in restraint of trade, or injurious to the revenue, or in restraint of marriage, or for procurement 148 NOTES OF HAND, BILLS OF EXCHANGE, ETC. of marriage, or suppressing evidence, or withdrawing a prosecu- tion for felony or public misdemeanor. Section IV. THE RIGHTS AND DUTIES OP THE MAKER. The maker of a note or the acceptor of a bill is bound to pay the same at its maturity, and at any time thereafter, unless the action be barred by the statute of limitations, or he has some other defense under the general law of contracts. As between himself and the payee of the note or bill, he may make any de- fenses which he could make on any debt arising from simple con- tract; as want or failure of consideration; payment in whole or in part; set-off; accord and satisfaction; or the like. The peculiar characteristics of negotiable paper do not begin to operate, so to speak, until the paper has passed into the hands of third parties. Then, the party liable on the note or bill can make none of these defenses, unless the time or manner in which it came into the possession of the holder la,ys him open to these defenses. But the law on this subject may better be presented in our next section. Section V. THE EIGHTS AND DUTIES OF THE HOLDER OF NEGOTIABLE PAPER. 1. What a Holder May Do with a Bill or Note. — An in- dorsee has a right of action against all whose names are *on the bill when he received it. And if one delivers a bill or note which he ought to indorse and does not, the holder has, an action against him for not indorsing, or may proceed in a court of equity to compel him to indorse. If a bill comes back to a previous in- dorser, he may strike out the intermediate indorsements and sue in his own name, as indorsee ; but he has, in general, no remedy against the intermediate parties, because, if he made them pay as indorsers to him, they would make him pay as indorser to them. If, however, the circumstances are such that they, if compelled to pay, would have no right against him as an indorser to them, as, for example, if he indorse it "without recourse," then he might have a claim against them. THE BIGHTS AND DUTIES OP THE HOLDBE. 149 The holder of a bill indorsed and deposited with him for col- lection, or only as a trustee, can use it only in conformity with the trust. And if the indorsement express that it is to be col- lected for the indorser's use, or use any equivalent language, this is notice to any one who discounts it ; and the party discounting the paper against this notice wiU be obliged to deliver the note, or pay its contents, if collected, to the indorser. Thus, Mr. Sigourney, a merchant in Boston, remitted to Williams, a Lon- don banker, for collection, a bill of exchange indorsed by him, and over his name was written, "Pay to Williams or order for my use." Williams had the bill discounted for his own benefit by his bankers, and failed ; and the English court held that the indorsement showed that the bill did not belong to Williams, and that the discounters had no right to discount it for him; and they were obliged to pay the amount of it to Sigourney. 2. Op a Transfer after Dishonor of Negotiable Paper. — So long as a note remains due, everybody has a right to believe that it has not been paid, and will be paid at maturity, and may pur- chase it in that belief. But as soon as it is overdue the date shows it, and every person must know that it is either paid, and so extinguished, or that it has not been paid, and therefore is dis- honored, and that there may be good reasons why it was not paid, or good defenses against it. He therefore now takes it at his own peril ; and therefore a holder who takes the note after it be- comes due is open to many of the defenses which the promisor could have made against the party from whom the holder took it ; because, having notice that the bill or note is dishonored, he ought to have ascertained whether any, and, if so, what defense could be set up. • So, too, if an indorsee takes the note or bill iefore it is due, but with notice or knowledge of fraud or other good defense, which could be made against his indorser if he sued it, it is a general rule that the same defense may be made against him. A note payable on demand is considered as not overdue, unless very old indeed, without some evidence of demand of payment and refusal, but in some States this has been changed by statute. But it i^ not so with a check ; for this should be presented with- out unreasonable delay. 3. Op Presentment for Acceptance. — It is most important to the holder of negotiable paper to know distinctly what his 150 NOTES OF HAND, BILLS OF EXCHANGE, ETC. duties are in relation to presentment for acceptance or payment, and notice to others interested in case of non-acceptance or non- payment. It is always prudent for the holder of a bill to present it for acceptance without delay; for if it be accepted, he has new security ; if not, the former parties are immediately liable ; and it is but just to the drawer to give him as early an opportunity as may be to withdraw his funds or obtain indemnity from a debtor who will not honor his bills. And if a bill is payable at sight, or at a certain period after sight, there is not only no right of action against anybody until presentment, but, if this be de- layed beyond a reasonable time, the holder loses his remedy against all previous parties. And although the question of rea- sonable time is generally one only of law, yet, in this connection, it is treated as so far a question of fact, that it is submitted to the jury. There is no certain rule determining what is reason- able time in this respect. If a bill of exchange be payable on de- mand, it is not like a promissory note, but must be presented within a reasonable time, or the drawer will be discharged. A holder may put a bill payable after sight into circulation, with- out presenting it himself; and in that case, if a subsequent holder presents it, a longer delay in presentment would be al- lowed than if the first holder had kept it in his own possession. The presentment should be made during business hpurs ; but in this country they extend through the day and until evening, except in the case of banks. Any distinct usage established where the presentment is made would probably be received in evidence, and permitted to affect the question. Ill health, or other actual impediment without fault, may ex- cuse delay on the part of the holder; but the request of the drawer to the drawee not to accept does not excuse non-present- ment for acceptance. Presentment for acceptance should be made to the drawee him- self, or to his agent authorized to accept. And when it is pre- sented, the drawee may have a reasonable time to consider whether he will accept, during which time the holder is justified in leaving the bill with him. This time is now generally fixed by statute as twenty-four hours. And if the holder gives more than twenty-four hours for this purpose, he should inform the pre- vious parties of it. If the drawee has changed his residence, the THE EIGHTS AND DUTIES OF THE HOLDER. 151 holder should use due diligence to find him ; and. what constitutes due or reasonable diligence is a question of fact for a jury. And if he be dead, the holder should ascertain who is his personal rep- resentative, if he has one, and present the bill to him. If the bill be drawn upon the drawee at a particular place, it is regarded as dishonored if the drawee heis absconded, so that the bill cannot be presented for acceptance at that place. 4. Of Presentment foe Demand of Payment. — The next question relates to the duty of demanding payment ; and here the law is much the same in respect both to notes and bills. The xmiversal rule of the law-merchant is, that the indorsers of negotiable paper are supposed to agree to pay it only if the maker or previous indorsers do not, and provided due measures are taken by the holder to get it paid by those who ought, in the first place, to pay it. Every holder of negotiable paper can hold it as long as he likes, and. not lose his claim against the maker of a note, or the acceptor of a bill, unless he holds it more than six years, and the Statute of Limitations bars his claim. The reason is, that the maker or acceptor promises directly, and not merely to pay if another does not. But every indorser of a note or bill, and every drawer of a bill, only promises to pay if the maker or acceptor or some previous indorser does not. If there is a bill of exchange with six indorsers, the last promises in law to pay it only if the acceptor, the drawer, and the five previous indorsers do not pay. He has therefore a right that a demand according to law should be made against every one of these persons, and that their refusal to pay should be notified to him, forthwith, so that he may secure himself if he can. And the law-merchant is very rigorous and precise in defining what demand should be made by the holder, and when and how demand should be made on every prior party, in order to hold any subse- quent party ; and also as to what notice of the demand and re- fusal of the prior party should be given to any subsequent party to whom the holder looks for payment. A demand is sufScient if made at the usual residence or place of business of the payer, either of himself, or of an agent author- ized to pay ; and this authority may be inferred from the habit of paying, especially if the agent be a child, a wife, or a servant. The demand should not be made in the street, although a demand then would probably be held good, unless objected to at the time 152 NOTES OF HAND, BILLS OP EXCHANGE, ETC. because made there. When a demand is made, the bill or note should be exhibited ; and if lost, a copy should be exhibited, al- though this is not absolutely necessary. And when a payer calls on the holder, and declares to him that he will not pay, and de- sires him to give notice to the indorsers, this constitutes a demand and refusal, provided this declaration be made at the maturity of the paper ; but not if it was made before maturity, because the payer may change his intention. Bankruptcy or insolvency of the payer is no excuse for non- demand ; although the shutting up of a bank may be regarded as a refusal to all its creditors to pay its notes. Absconding of the payer 'is generally a sufficient excuse; but if the payer has shut up his house, the holder must nevertheless inquire after him, and find him, if he can by proper e^orts. Even in case of absconding, it is always better to go through the formality of making a demand at the payer's last residence or place of busi- ness; and this is held necessary in Massachusetts. If the payer be dead, demand should be made at his house, unless he have per- sonal representatives, and in that case," of them. And if the holder die, presentment should be made by his personal represen- tatives ; that is, by his executor or administrator. If the drawer has no effects in the hands of the drawee, and has no arrangement or understanding which gives him a right to draw, non-presentation for payment is not a defense which he can make if sued on the bill. , Impossibility of presenting a bill for payment, without the fault of the holder, as the actual loss of a bill, or the like, will excuse some delay in making a demand for payment; but not more than the circumstances require. And the mere mistake of the holder as to the time, place, person, and manner, is no excuse, because he has no right to make mistakes to the injury of other people. At common law" all negotiable paper payable at a time certain is entitled to grace, which here means three days' delay of pay- ment, unless it be expressly stated and agreed that there shall be no grace ; and a presentment for payment before the last day of grace is premature, the note not being due until then. If the last day of grace falls on Sunday, or on a legal holiday, the note is due on the Saturday, or other day before the holiday. But if there be no grace, and the note falls due on a Sunday, or other THE EIGHTS AND DUTIES OF THE HOLDER. 153 holiday, it is not payable until the next day. In most of the States days of grace have now been abolished by statute. At the close of the chapter we give an abstract of the laws of all, the States concerning days of grace and holidays. Generally, if a bill or note be payable in or after a certain number of days from date, sight, or demand, in counting these days, the day of date, sight, or demand, is excluded, and the day on which it falls due included. And the law would supply the word "from," etc., if the word were not used. Thus, a note dated January 1, and payable in "twenty days," would be held payable in twenty days (and three days' grace) after the day of the date ; that is, on the 24th. If a note is made payable in one or more months, this means calendar months, whether shorter or longer. If made on the 13th of December, and payable in two months, it is payable on the 13th of February and grace, that is, on the 16th. But if so many days are named, they must be counted, whether they are more or less than a month. Thus, if the above note were payable in sixty days, it would be due on the 11th and grace, or on the 14th of February. If dated 13th of January, and payable in sixty days, it would be due on the 14th of March, with grace, or on the 17th. Although payment must be demanded promptly, that is, on the day on which it is due, it need not be done instantly ; a holder has all the business-part of the day in which the bill or note falls due to make his demand in. Bills and notes payable on demand should be presented for payment within a reasonable time. If said to be "on interest," this strengthens the indication that they were intended to remain for a time unpaid and undemanded. But to hold indorsers, they should still be presented within whatever time circumstances may make a reasonable time ; and this is such a time as the interests and safety of all concerned may require ; and it may be a few days, or even one or two weeks. A bill or note in which no time of payment is expressed is held to be payable on demand. And evidence to prove it otherwise is inadmissible. The holder of a check should present it at once ; for the drawer has a right to expect that he will; it should, therefore, be pre- sented, or forwarded for presentment, in the course of the day following that in which it was received, or, upon failure of the bank, the holder will lose the remedy he would otherwise have 154 NOTES OF HAND, BILLS 0¥ EXCHANGE, ETC. had against the person from whom he receives it. If the drawer of the check had no funds, he is liable always. Every demand of payment should be made at the proper place, which is either the place of residence or of business of the payer, and within the proper hours of business. If made at a bank after hours of business, if the oflBeers are there, and refuse pay- ment for want of funds, the demand is sufficient. A note payable at a particular place should be demanded at that place ; and a bill drawn payable at a particular place should be demanded there, in order to charge the drawer of a bill, and the indorsers of a bill or note. But in this country an action may be maintained against the maker or acceptor without such demand ; but the defendant may discharge himself of damages and costs beyond the amount of the paper, by showing that he was ready at that place with funds. If a note is payable at any of several different places, presentment at any one of them will be -sufficient. If a bill which is drawn payable generally, be ac- cepted payable at a particular place, the holder may and should so far regard this as non-acceptance, that he should protest and give notice. But if this limited acceptance is assented to and re- ceived, it must be complied with by the holder, and the bill must be presented for payment at that place, or the drawer and in- dorsers are discharged. If payable at a banker's or at the house or counting-room of any person, and such banker or person becomes the owner at ma- turity, this is demand enough; and if there are no funds de- posited with him for the payment, this is refusal enough. If any house be designated, a presentment to any person there, or at the door if the house be shut up, is enough. If this direction be not in the body of the note, but added at the close, or elsewhere, as a memorandum, it is not part of the contract, and should not be attended to. If the payer has changed his residence, he should be sought for with due diligence ; and, if he has absconded, it is better to make the demand at his last place of residence or business. Where a bill or note is not presented for payment, or not pre-, sented at the time, or to the person, or in the place, or in the way, required by law, all parties but the acceptor or maker are dis- charged, for the reasons before stated. THE RIGHTS AND DUTIES OF THE HOLDEE. 155 5. Of Protest and Notice. — If a bill of exchange be not ac- cepted when properly presented for that purpose, or if a bill or note, when properly presented for payment, be hot paid, the holder has a further duty to perform to all who are responsible for payment. In case of non-payment of a foreign bill, there should be a regular protest by a public notary; but this is not strictly necessary in the ease of an inland bill, or a promissory note, whether foreign or inland. But in practice, all bills if not accepted, and all bills and notes if unpaid, are protested. By a foreign bill is meant a bill drawn in one State or country, and payable in another. But notice of non-payment should be given to all antecedent parties, equally, and in the same way, in the case of both bills and notes. The demand and protest must be made according to the laws of the place where the bill is payable. It should be made by a notary-public, who should present the bill himself ; but, if there be no notary-public in that place or within reasonable reach, it may be made by any respectable inhabitant in the presence of witnesses. The protest should be noted on the day of demand and re- fusal; and may be filled up afterwards, even so late as at' the trial. The loss of a bill is not a sufficient excuse for not protesting it. But a subsequent promise to pay by a drawer or indorser, if made with knowledge of the facts, is held to imply, or be equal to, a previous protest and notice to him. The notarial seal is of itself evidence of the dishonor of a for- eign bill, but not of an inland bill. And no collateral statement in the certificate is evidence of the fact therein stated ; thus the statement by a notary, that the drawee refused to accept or pay because he had no funds of the drawer, is no evidence of the ab- sence of such funds. Notice must be given even to one who has knowledge. No par- ticular form is necessary ; it may be in writing, or oral ; all that is absolutely essential is, that it should designate the note or bill with sufficient distinctness, and state that it has been dishonored ; and also that the party notified is looked to for payment ; but it has been held that the notice to the party bound to pay, when given by the immediate holder of the bill, sufficiently implies that he is looked to. Notice of protest for non-payment is sufficient 156 NOTES OF HAND, BILLS OF EXCHANGE, ETC. notice to indorsers of demand and refusal. How distinctly the note or bill should be described cannot be precisely defined. It is enough if there be no such looseness, ambiguity, or misdescrip- tion as might mislead a man of ordinary intelligence ; and if the intention was to describe the true note, and the party notified was not actually misled, this would always be enough. The notice need not state for whom payment is demanded, nor where the note is lying ; and even a misstatement in this respect may not be material if it do not actually mislead. No copy of the protest need be sent to indorsers ; but informa- tion of the protest should be given. If the letter be properly put into the post-offlce, any miscar- riage' of the mail does not affect the party giving notice. The address should be sufficiently specific. The surname only — as "Mr. Ames," — especially if sent to a large city, would not, in general, be enough. If a letter, however generally directed, can be shown to have reached the right person at the right time, it is sufScient. The postmarks are strong evidence that the letter was mailed at the very time these marks indicate, but this evi- dence may" be rebutted, that is, contradicted. •A' notice not only may, but should, be sent by the public post. It may, however, be sent by a private messenger ; but is not suffi- cient if it does not arrive until after the time at which it would have arrived by mail. It may be sent to the town where the party resides, or to another town, or to a more distant post-office, if it is clear that he may thereby receive the notice earlier. And if the notice is sent to what the sender deems, after due diligence, the nearest post-office, this is enough. The notice should be sent either to the place of business, or to the residence, of the party notified. But if one directs a notice to be sent to himself elsewhere than at home, it may be so sent, and bind not only him, but prior parties, although time is lost by so sending it. The notice of non-payment should be sent within reasonable time; and in respect to negotiable paper, the law-merchant de- fines this within very narrow limits. If the parties live in the same town, notice must be given, or sent by mail, so that the party to whom it is sent may receive the notice in the course of the day next after that in which the party sending has knowledge of the fact. If the parties live in different places, the notice THE EIGHTS AND DUTIES OF THE HOLDBE. 157 must be sent as soon as by the first practicable mail of the next day, or the next mail, if there be none on the next day. Each party receiving notice has a day, or until the next post after the day in which he receives it, before he is obliged to send the notice forward. Thus, if there be six indorsers, and the note is due on the 10th of May, in New York, and is then demanded and unpaid, the holder may send it by any mail which leaves New York on the 11th of May, to the last indorser, wherever he lives ; and that indorser may send it to the indorser immediately before him, by any mail on the day after he receives it ; and so may each of the parties receiving notice ; and all the parties to whom notice is sent in this way will be held. So, too, a banker, with whom the paper is deposited for collection, is considered a holder, and entitled to a day to give notice to the depositor, who then has a day for his notice to antecedent parties. The differ- ent branches of one establishment have been held distinct holders for this purpose, and each to be entitled to a day. It should be sent by the first safe opportunity. Neither Sunday nor any legal holiday is to be computed in reckoning tLe time witfiin which notice must be given. There is no presumption of notice; and the plaintiff must prove that it was given, and was sufficient. Thus, proving that it was given in "two or three days" is insufficient, if two would have been right, but three not. Notice should be given only by a party to the instrument, who is liable upon it, and not by a stranger; and it has been held that notice could not be given by a first indorser, who, not hav- ing been notified, was not himself liable. A notice by any party liable will operate to the benefit of all antecedent or subsequent parties ; that is, will hold them all to the original holder of the note, if the original holder gave notice properly to the party nearest to him. The notice may be given by any authorized agent of a party who could himself give notice. Notice must be given to every antecedent party who is to be held. And we have seen that this may be given by a holder to the first party liable, and by him to the next, &c. But the holder may always give notice to all antecedent parties; and it is al- ways prudent, and in this country usual, to do so. For the holder loses all remedy against all those who are discharged by the failure of any one receiving notice to transmit it properly. 158 NOTES OF HAND, BILLS OF EXCHANGE, ETC. But if a holder undertakes to notify all the antecedent parties, he must notify all as soon as he was obliged to notify the party nearest to him; that is, the day after the dishonor of the note. We mean by this, that every party has a day; so that, if there be six indorsers, if the first indorser is notified on- the seventh day from the dishonor, it is enough, if the holder took his day to notify the sixth indorser, and that indorser his day to notify the fifth, and so on. But the holder has nobody's day but his own ; ' and if he undertakes to notify all the parties, he must notify them all, on the first day after the non-payment. ' Notice may be given personally to a party, or to his agent authorized to receive notice, or left in writing at his home or place of business. If the party to be notified is dead, notice should be given to his personal representatives. A notice ad- dressed to the "legal representative of," &c., and sent to the town in which the deceased party resided at his death, has been held sufiScient. But a notice addressed to the party himself, when known to be dead, or to "the estate of," &e., would not be of itself sufficient, but might become so with evidence that the administrator or executor actually received the notice. If two or more parties are jointly liable on a bill as partners, notice to one is enough ; but, if the indorsers are not partners, notice should be given to each. One transferring by delivery, without indorsement, a note or bill payable to bearer, is not generally entitled to notice of non- payment, because, generally, he is not liable to pay such paper j but if the circumstances of the case are such as to make him liable, then he must have notice, but is entitled not to the exact notice of an indorser, but only to such reasonable notice as is due to a guarantor. If, for instance, the paper was transferred as security, or even in payment of a pre-existing debt, this debt re- vives if the bill or note be dishonored ; and therefore there must be notice given of the dishonor. In general, a guarantor of a bill or note, or debt, is not entitled to such strict and exact notice as an indorser is entitled to, but only to such notice as shall save him from actual injury ; and he cannot make the want of notice his defense, unless he can show that the notice was unreasonably withheld or delayed, and that he has actually sustained injury from such delay or want of no- tice. If an indorser give also a bond, or his owt note, to pay the THE EIGHTS AND DUTIES OF THE HOLDEE. 159 debt, he is not discharged from his bond or note by want of no- tice. In general, all parties to negotiable paper, who are entitled to notice, are discharged by want of notice. The law presumes them to be injured, and does not put them to proof. The right to notice may be waived by any agreement to that effect prior to the maturity of the paper. It is quite common for an indorser to write, "I waive notice," or "demand," or, "I wkive demand and notice," or some words to this effect. It should, however, be remembered, that these rights are independ- ent, and one does not imply the other. A waiver of notice of non-payment does not imply a waiver of demand ; therefore, if an indorser writes on the note, "I waive notice," still he will be discharged if there be not a due demand on the maker. And it has been held that a waiver of protest is a waiver of demand, but not of notice. So if a drawer countermands his order, the bill should still be presented, but notiee of dishonor need not be given to the drawer. Or, if a drawer has no funds, and nothing equiva- lent to funds, in the drawee's hands, and would have no remedy against the drawee or any one else, as the drawer cannot be prejudiced by want of notiee, it is not necessary to give him no- tice. But the indorser must still be notified ; and a drawer for the accommodation of the acceptor is entitled to notice, because he might have a claim upon the acceptor. .Actual ignorance of a party's residence justifies the delay nec- essary to find it out, and no more ; and after it is discovered, the notifier has the usual time. Death, or severe illness, of the notifier or his agent, is an ex- cuse for delay ; but the death, bankruptcy, or insolvency of the drawee of a bill is no excuse. As the right to notice may be waived before maturity, so the want of notice may be cured afterwards by an express promise to pay; and an acknowledgment of liability, or a payment in part, is evidence, but not conclusive evidence, of notice ; the jury ma^ draw this conclusion from part payment, but are not hound to, even if the evidence be not rebutted. If the promise be con- ditional, and the condition be not complied with, the promise has been held to be still evidence of protest. Nor is it sufficient to avoid such promise, that it was made in ignorance of the law ; but it is void if made in ignorance of the fact of non-notice. 160 NOTES OF HAND, BILLS OF EXCHANGE, ETC. Section VI. THE RIGHTS AND DUTIES OP THE INDOESEB. Only a note or bill payable to a payee or order is, strictly speaking, subject to indorsement. Those who write their names on the back of any note or biU are indorsers in the one sense, and are sometimes called so ; but are not meant in the law-merchant by the word "indorsers." The payee of a negotiable bill or note — whether he be also maker or not — may indorse it, and afterwards any person or any number of persons may indorse it. The maker promises to pay to the payee ar his order; and the indorsement is an order on the maker to pay the indorsee, and the maker's promise is then to pay the note to him. But if the original promise was to the payee or order, this ' ' or order, ' ' which is the negotiable element, passes over to the indorsee, though not written in the indorse- ment, and the indorsee may indorse, ahd so may his indorsee, in- definitely. Each indorser, by his indorsement, does two things : first, he orders the antecedent parties to pay his indorsee ; and next, he engages with his indorsee, that, if they do not pay, he will. If the words "to order," or "to bearer," are omitted acci- dentally, or by mistake, they may be afterwards inserted with- out injury to the bill or note ; and whether a bill or note is nego- tiable or not, is a question of law. By the law-merchant, bills and notes which are payable to order can be effectually and fully transferred only by indorse- ment. This indorsement may be in ilwnk, or m full. The writ- ing of the name of a payee, — either the original payee or an in- dorsee, — with nothing more, is an indorsement in blank ; and a blank indorsenient makes the bill or note transferable by delivery, in like manner as if it had been originally payable to bearer. After a note has been indorsed by a payee, any person may write his name on the note under that of the payee, and be held as in- dorser, — ^because any subsequent holder may -vrite over the name of the first indorser a direction to pay the note to the next signer, and this makes the next signer an indorsee, and so ^ves him a right to indorse ; and he or any holder may write over his name an order to pay the holder, or anybody else. If the indorsement consist not only of the name, but of an order above the name to THE EIGHTS AND DUTIES OP THE INDORSEE. 161 pay the note to some specified person, ihen it is an indorsement in full, and the note can be paid to no one else unless that person indorses it ; nor can the property in it be fully transferred, ex- cept by his indorsement ; and his indorsee may again indorse it in blank or in full. If the indorsement is. Pay to A B only, or in equivalent words, A B is indorsee, but cannot indorse it over. Any holder for value of a bill or note indorsed in blank, whether he be the first indorsee or one to whon; it has come through many hands, may write over any name indorsed an order to pay the contents to himself; and this makes it a special in- dorsement, or an indorsement in full. This is often done for security; that is, to guard against the loss of the note by acci- dent or theft. For the rule of law is, that negotiable paper trans- ferable by delivery (whether payable to bearer or indorsed in blank) is, like money, the property of whoever receives it in good faith. The same rule has been extended in England to exchequer bills ; to public bonds payable to bearer ; and to East India bonds ; and we think it would extend here to our railroad and other corporation bonds, and, perhaps, to all such instru- ments as are payable to bearer, whether sealed or not, and what- ever they may be called. If one has such an instrument, and it is stolen, and the thief passes it for consideration to a iona fide holder, this holder acquires a legal right to it, because the prop- erty and possession go together. But if the bill or note be spe- cially indorsed, no person can acquire any property in it, except by the indorsement of the special indorsee. It may be well to remark here, that the finder of negotiable paper, as of all other property, ought to make reasonable endeav- ors to discover the owner, and is entitled to use the thing found as his own only when he has made such endeavors unsuccessfully. If he conceals the fact of finding, and appropriates the thing to his own use, he is liable to the charge of lairceny- or theft. The written transfer of negotiable paper is called an indorse- ment, because it is almost always written on the back of the note ; but it has its full legal effect if Avritten on the face. Joint payees of a bill or note, who are not partners, must all join in an indorsement. An indorser may always prevent his own responsibility by writing "without recourse," or other equivalent words, over his indorsement; and any bargain between the indorser and in- 11 162 NOTES OP HAND, BILLS OF EXCHANGE, ETC. dorsee, written or oral, that the indorser shall not be sued, is available by him against that indorsee ; but he cannot make this defense against subsequent indorsees who had no notice of the bargain before they took the note. Every indorsement and acceptance admits conclusively the genuineness of the signature of every party who has put his name upon the bill previously in fact, and who is also previous in order. By this is meant, that if an indorser — say a third indorser — is sued, he cannot defend himself by saying that the names of the maker and first and second indorsers, or either of them, were forged, because by indorsing it himself he gives his indorsee a right to believe that the previous signatures were genuine. And an acceptor cannot say that his drawer 's name is forged ; but he may say that an indorsement which was on the bill when he ac- cepted it was forged, because an indorsement of a bill comes prop- erly and in order of law after acceptance. If a holder strikes out an indorsement by mistake, he may re- store it ; if on purpose, the indorser is permanently discharged. A holder may bring his action against any prior indorser, either by making title through all the subsequent indorsements, or by filling any blank indorsement specially to himself, and suing ac- cordingly ; but then he invalidates all the indorsements which are subsequent to that which he has made special to himself. One may make a note or bill payable to his own order, and in- dorse it in blank ; and this is now very common in our commercial cities, because the holder of such a bill or note can transfer it by delivery, and it needs not his indorsement to make it negotiable further. A note to the maker's own order, if not indorsed by him, is, strictly speaking, of no force against him. But there is some disposition in the courts to say that a holder of such note may sue the maker as if the note were to bearer. A transfer by delivery, without indorsement, of a bill or note payable to bearer, or indorsed in blank, does not generally make the transferer responsible to the transferee for the payment of the instrument. Nor has the transferee. a right to fall back, in case of non-payment, upon the transferer for the original con- sideration of the transfer, if the bill were transferred in good faith, in exchange for money or goods ; for such transfer would be held to be a sale of the bill or note, and the purchaser takes it with all risk. THE EIGHTS AND DUTIES OF THE ACCEPTOR. 163 An indorsement may be made on the paper before the bill or note is drawn ; and such indorsement, says Lord Mansfield, ' ' is a letter of credit for an indefinite sum, and it will not lie in the indorser's mouth to say that the indorsements were not regular." The same rule applies to an acceptance on blank paper. So an indorsement may be made after or, before acceptance, though strictly proper only after. A bill or note onee paid at or after maturity, ceases to be nego- tiable, in reference to all who had been discharged by the pay- ment. If issued again, it is like a new note without their names. If a bill or note is paid before it is due, it is valid in the hands of a subsequent iona fide indorsee, and must be paid to him. A portion of a negotiable bill or note cannot be transferred, so as to give the transferee a right of a,ction for that portion in his own name. But if the bill or note be partly paid, it may be indorsed over for the balance. After the death of a holder of a bill or note, his executor or ad- ministrator may transfer it by his indorsement. If the rule that the same party cannot be plaintiff and defend- ant prevents the action, as where A, B, & Co. hold the note of A, C, & Co., so that if a suit were brought A would be one of the plaintiffs and one of the defendants also, which cannot be, A, B, & Co. may indorse the note to D, who may then sue A, C, & Co. Section VII. THE RIGHTS AND DUTIES OF THE ACCEPTOR. Acceptance applies to bills, and not to notes. It is an en- gagement of the person on whom the bill is drawn to pay it ac- cording to its tenor. The acceptance must be in writing and signed by the drawee. It is usually made by writing the word "accepted" across the face of the bill, followed by the signature of the drawee. It may, however, be made on a separate paper, but in such case it does not bind the acceptor except in favor of a person to whom it is shown and who, on the faith thereof, re- ceives the bill for value. Under the provisions of the Uniform Negotiable Instruments Law, the holder may require the accept- ance to be written on the bill, and, in case of refusal, may treat the bill as dishonored. A written promise to accept a future 164 NOTES, OF HAND, BILLS OF EXCHANGE, ETC. bill, if it distinctly define and describe that very bill, has been held in this country as the equivalent of an acceptance, if the bill was taken on the credit of such promise. A banker is liable to his depositor without acceptance of his checks, if he refuses to pay checks drawn against funds in his hands. If a bill is accepted by a part only of those jointly responsible, or joint drawees, it may be treated by the holder as dishonored; but if not so treated, the parties accepting will be bound. An acceptance may be made after maturity, and will be treated as an acceptance to pay on demand. The acceptance may be canceled. by the holder; and if this canceling be voluntary and intended, it is complete and effectual; but if made by mistake, by him or other parties, and this mistake can be shown, the acceptor is not discharged. And if the can- celing be by a third party, it is for the jury to say whether the holder authorized or assented to it. If a qualified acceptance be offered, the holder may receive or refuse it. If he refuses it, he may treat the bill as dishonored ; if he receives it, he should notify antecedent parties, arid obtain their consent ; without which they are not liable. But if he pro- tests the bill as dishonored, for this reason, he ealnnot hold the acceptor upon his qualified acceptance. A bill drawn on one incompetent to contract, as from infancy, marriage, or lunacy, may be treated by the holder as dishonored. A bill can be accepted only by the drawee, — in person or by his authorized agent, — or by some one who accepts for honor. Section VIII. ACCEPTANCE OB PAYMENT FOR HONOR. If a bill be protested for non-acceptance or for non-payment, any person may accept it, or pay it ' ' for the honor ' ' either of the drawer or of any indorser. This he usually does by going with the bill before the notary public who protested the bill, and there declaring that he accepts or pays the bill "for honor"; and he should designate for whose honor he accepts or pays it, at the time, before the notary public, and it should be noted by him. A general acceptance supra protest (which is the phrase used both by merchants and in law, meaning, upon or after protest) JUDGMENT NOTES. 165 for honor, is taken to be for honor of the drawer. The drawee himself, refusing to accept it generally, may thus accept for the hopor of the drawer or an indorger. And after a bill is accepted for honor of one party, it may be accepted by another person for honor of another party. And an acceptance for honor may be made at the intervention and request of the drawee. No holder is obliged to receive an acceptance for honor ; he may refuse it wholly. If he receive it, he should, at the maturity of the bill, present it for payment to the drawee, who may have been supplied with funds in the meantime. If not paid, the bill should be protested for non-payment, and then presented for payment to the acceptor for honor. The undertaking of the acceptor for honor is collateral only ; being an engagement to pay if the drawee does not. It can only be made for some party who will certainly be liable if the bill be not paid ; because, by an acceptance or by a payment, properly made, for honor, supra protest, such acceptor or payer acquires an actual claim against the party for whom he accepts, or pays, and against all -parties to the bill antecedent to him, for all his lawful costs, payments, and damages, by reason of such accept- ance or payment. This is an entire exception to the rule that no person can make himself the creditor of another without the re- quest or consent of that other ; but it is an exception established by the law-merchant. The reason why bills o£ exchange are sometimes accepted or paid for honor is to save the party for whose honor this is done, from the very heavy damages of a protested bill. Section IX. JUDGMENT NOTES. In many of our States it is a common practice to give a promissory note, and include in it a " confession of judgment, ' ' for the amount. A suit may then be brought on the note as soon as it is due and unpaid, and a judgment taken out at once with- out the delay of a trial ; and execution may issue on the judg- ment. Sometimes by the same note the promisor waives or re- nounces the benefit or protection of all exemption laws ; and then the execution may be satisfied from any of his property that the sheriff can find. 166 NOTES OF HAND, BILLS OF EXCHANGE, ETC. (77.) Form of a Judgment Note with Waiver. (Time.) after date, for value received, I promise to pay . .,19-1- or bearer, dollars, with interest, and without defalcation or stay of execution. And I do hereby confess judgment for the above sum, with in- terest and costs of suit, a release of all errors, and waiver of all rights to inquisition and appeal, and to the benefit of all laws exempting real or per- sonal property from levy and sale. e.) Sometimes, in addition to the above, the same note has below it a power of attorney, authorizing the attorney whose name is put into the blank left for that purpose to appear in court for the promisor, and confess judgment. Sometimes the power is given to an attorney whom the parties agree upon, and then no other attorney can confess the judgment. It is, however, far more usual, and better, to insert the name of an attorney, and add, as in the following form, "or any attorney of any court of record. " - • Sometimes the note is followed on the same paper by a power to confess judgment, and a waiver of all right of exemption; both the power and the waiver extending beyond the above writ- ten note, and covering other notes and honds and other evidence of debt. (78.) Judgment Note with fuller Waiver, and Power of Attorney. $ , 19 For value received, I, -. , promise to pay to the onler of the sum of dollars, with interest, i» {time) . {Signature.') Enow air Men by these Presents, That whereas, , the subs..'riber,' is now justly indebted to upon a cer1;ain promissory note, bearing even date herewith, for the sum of dollars, and cents, paya- ble to the order of the said and due , and may from time to time hereafter become further or otherwise justly indebted to the said , upon bonds, promissory notes, due-bills, and other written evi- dences of debt, made, or to be made, indorsed or accepted by him and held or owned by the said '- or the assignee or assignees hereof. Wow, Therefore, in consideration of the premises, and of the sum of one dollar to me paid by the said . ■. the receipt whereof is hereby acknowl- edged, I do hereby make, constitute, and appoint or any attorney of FORMS OF JUDGMENT NOTES. 167 any court of record, to be my true and lawful attorney, irrevocable, for me and in my name, place, and stead, to appear in and before any court of record, either in term-time or in vacation, in any of the States or Territories of the United States, at any time after the maturity of said note, or of any such bond, promissory note, due-bill, or other written evidence of debt, so already made or to be made, indorsed or accepted by me as aforesaid, respectively, to waive service of process, and confess a judgment in favor of the said , his executors, administrators, assignee or assignees, or the legal holder or holders of said note or any one or more of such bonds, promissory notes, due-bills, or other written evidences of debt, as aforesaid, for so much money as shall by the same appear to be due or owing thereon, with interest thereon according to the tenor and effect thereof respectively, together with costs; also, for dollars attorney's fees, to be added to the amount due or owing on entering up judgment; also, to file a cog- novit for the amount that may be so due or owing, including attorney's fees as aforesaid, with an agreement therein that no writ of error or appeal shall be prosecuted upon the judgment entered up by virtue hereof, nor any bill in equity filed to restrain or in any manner interfere with the operation of said judgment, or any execution issued or to be issued thereon, and to release all errors that may intervene in the entering-up of any such judg- ment or issuing any execution thereon, and to consent, stipulate, and agree, that any execution issued or to be issued upon such judgment, may be im- mediately levied upon, and satisfied out of any personal property which I may have or own, and to waive and relinquish all my right to have my personal property last taken and levied upon to satisfy such execution, and also to consent that execution may issue upon any such judgment immediately. Hereby ratifying and cjinfirming all that my said attorney may do by virtue hereof. And, in consideration of the premises, I do hereby stipulate, covenant, and agree with the said , his executors, administrators, and with the assignee, assignees, or the legal holder or holders of said note, or of any one or more of such bonds, promissory notes, due-bills, or other written evidences of debt as aforesaid, that any execution so issued or to be issued as afore- said, may first be levied upon and satisfied out of any personal property which I may have or own, hereby expressly waiving all right to have my personal property last taken and levied upon to satisfy such execution. Witness my hand and seal this day of A. D. 19 — (^Signature.) {Seal.) In Presence of (79.) Notarial Protest. UNITED STATES OP AMERICA. State of ' r CiTT (OE Town) oi" and County op '\^^^' Be it known that on this day of in the year of our Lord one thousand nine hundred and , at the request of I, 168 NOTES 0¥ HAND, BILLS OF EXCHANGE, ETC. Notary Public, duly commissioned and sworn, residing in the City (or Town) of aforesaid, did present the original {note or bill of exchange) hereunto annexed to and demanded (payment or accept- ance) thereof, which was refused, stating Wheeeupon, I, the said Notary, at the request aforesaid, did Peotest, and do hereby publicly and solemnly Protest against the Drawers and In- dorsers of the said (note or bill) and all others concerned, for all exchange, re-exchange, all costs, damages, and interest, incurred or to be incurred for want of (payment or acceptance) of the same. . And I, the said Notary, do hereby certify, that on the same day I deposited in the Post Office at , Notices for the following persons : Thus Done and Protested, in the City (or Town) of aforesaid and my Notarial Seal affixed, the day and year above written. (Seal.) Notary Public. (80.) , Notice of Protest. , , 19_ Sir: Please take notice, that a (note made by, or bill of exchange drawn by on ) for dollars, dated 1900, payable and indorsed by you, is duly protested for non-payment (or accept- ance), payment (or acceptance) having been demanded and refused, and the holders look to you for the payment thereof. Respectfully, To Notary Publio. ABSTBACT OF THE DATS OF GEAGE AND HOLIDAYS IN ALL THE STATES AND TERRITORIES. ALABAMA. The uniform negotiable instruments law has been adopted and days of grace are abolished. Sundays, Christmas Day, January 1st and 19th, Feb- ruary 22d, April 13th, and 26th, June 3rd, July 4th, Oct. 12th, the first Monday of September, the second Thursday in October, Thanksgiving Day, and Mardi Gras are holidays. If any other holiday falls on Sunday, the Monday following is a holiday. Paper falling due on a holiday is payable on the next succeeding business day. ALASKA. Uniform negotiable instrument act adopted and grace abolished. Holidays, Jan. 1st, Feb. 12th and 22d, March 30th, May 30th, July 4th, Oct. 18, Dee. 25th, Ijabor Day, Thanksgiving and general election days. ARIZONA. The uniform negotiable instruments law has been adopted and days of grace are abolished. January 1st, February 12th, and 22d, May 30th^ July ABSTRACTS OF DAYS OF GRACE AND HOLIDAYS. 169 4th, the first Monday in September, October 12th, December 25th, Sundays, Thanksgiving, Arbor and election days are holidays. When any other holiday falls on Sunday, the following day is treated as a legal holiday. Notes, checks, etc., payable on a holiday are due and collectible on the day following. ARKANSAS. Negotiable instruments are governed by the rules of commercial law. Sundays, January 1st and 19th, February 22d, June 3d, July 4th, Decem- ber 25th, the first Monday in September, general election and Thanksgiving days are legal holidays, and all paper falling due on either of said days is payable on the preceding day. CALIFORNIA. The uniform negotiable instruments law has been adopted and days of grace are abolished. All contracts to be performed on a holiday may be per- formed on the next business day. Sundays, January 1st, February l2th and 22d, May 30th, July 4th, September 9th, the first Monday of September, October 12th, Christmas, general election days, and all days appointed by the Governor or President as days of public fast, Thanksgiving, or holiday, are legal holidays. When any other holiday falls on Sunday, the Monday fol- lowing is treated as a holiday. COLORADO. The uniform negotiable instruments law has been adopted and days of gracQ are not allowed. Sundays, January 1st, February 12th and 22d, May 30th, July 4th, the first Monday in September, election day in November, De- cember 25th, Thanksgiving and fast days are holidays, and bills and notes due on any of said days are payable on the next succeeding business day. When any holiday falls on Sunday, the Monday following is treated aa a holiday. CONNECTICUT. The uniform negotiable instruments law has been adopted and days of grace are abolished. Paper falling due on Sunday, January 1st, February 12th, February 22d, May 30th, July 4th, the first Monday of September, October 12th, December , 25th, Thanksgiving or fast days, is payable on the business day next succeeding. A hoUday falling on Sunday is observed on Monday. Saturday afternoon is a holiday for banking purposes, and paper maturing- on Saturday is payable on Monday, but instruments payable on demand may be presented for payment before twelve o'clock. DELAWARE. ■ The uniform negotiable instruments law has been adopted and days of grace are abolished. Sundays, January 1st, February 12th and 22d, May 30th, July 4th, the first Monday of September, October 12th, December 25tli, general election day. Thanksgiving, Saturday afternoon in New Castle and Kent Counties, are public holidays, and negotiable instruments due on such day or on the following day, when any holiday falls on Sunday, are payable 170 AB8TEACTS OF DAYS OF GRACE AND HOLIDAYS. on the next business day. Paper maturing on a half-holiday Saturday is payable on the next succeeding business day. DISTRICT OF COLUMBIA. The uniform negotiable instruments law is in efiect and days of grace a,re abolished. Sunday, January 1st, February 22d, May 30th, July 4th, Decem- ber 25th, the first Monday of September, inauguration day. Thanksgiving and fast days are public holidays, and notes falling due thereon are deemed to have matured on the business day following. When any other holiday falls on Sunday the following day is a holiday. Saturday afternoon is a holiday for banking purposes. FLORIDA. The uniform negotiable instruments law has been adopted and days of grace are abolished. Sundays, January 1st and 19th, February 22d, April 26th, June 3d, July 4th, 1st Monday of September, 2nd Friday of October, December 25th, Good Friday, Thanksgiving, general election days, and Shrove Tuesday in all cities or towns having a Carnival Association, are public holidays, and notes falling due on such days must be presented on next succeeding business day. "When any other holiday falls on Sunday, the fol- lowing Monday is a holiday. Notes, etc., falling due Saturday are payable on Monday, but if on demand may' be presented Saturday before twelve. GEORGIA. Days of grace are abolished on all commercial paper. Sundays, January Ist and 19th, February 22d, April 26th, June 3d, July 4th, December 25th, the first Monday of September, and days of public Thanksgiving and fast are holidays. Notes, etc., falling due on a holiday are payable on the busi- ness day next succeeding. When holiday falls on Sunday, Monday is ob- served. HA WAIL The uniform negotiable instruments law has been adopted and days of grace are abolished. Bills and notes falling due on Sunday or a holiday, or on a Saturday half -holiday, are payable on the next succeeding business day, except that those payable on demand may be presented on Saturday before twelve o'clock. Holidays are: January 1, February 22, May 30, June 11, July 4, December 25, the first Monday and third Saturday in September,, and any day of thanksgiving or fasting appointed by the President of the United States, and any holiday appointed by the Governor. IDAHO. The uniform negotiable instruments law has been adopted and days of grace are abolished. Sundays, January 1st, February 22d, May 30th, June 15th, July 4th, October 12th, December 25th, the first Monday in September, elpetion, fast, and Thanksgiving days are holidays. Paper due on a holiday is payable on the next succeeding business day. Paper falling due on Satur- day is payable on Monday, but if on demand, may be presented Saturday before noon. ABSTRACTS OF DAYS OF GRACE AND HOLIDAYS. 171 ILLINOIS. The uniform negotiable instniments law is in force and days of grace are not allowed. Holidays are Sundays, January 1st, February 12th and 22d, May 30th, July 4th, October 12th, December 25th, the first Monday of Sep- tember, general election days, and any day appointed by the Governor or President as a day of fast or thanksgiving ; and paper falling due on any of said days is payable on the following business day. If holiday falls on Sunday, Monday is observed. Paper falling due on Saturday is payable on Monday, except that if due on demand it may be presented Saturday before twelve. INDIANA. The uniform negotiable instruments law has been adopted and days of grace are abolished. Sundays, January 1st, February 12th and 22d, May 30th, July 4th, the first Monday in September, October 12th, Thanksgiving Day, Christmas Day, and general State or national election days are legal holidays, and in cities of 35,000 or more Saturday after 12 o'clock noon is a legal half -holiday. When a holiday falls on Sunday, Monday is observed. Notes, etc., falling due on. Sunday or a legal holiday are payable on the next succeeding business day. IOWA. The uniform negotiable instruments law has been adopted and days of grace are abolished. Holidays are Sundays, January 1st, February 22d, May 30th, July 4th, the first Monday of September, Christmas Day, general elecj' tion day, and any day appointed by the Governor or President a day of fast or thanksgiving, and notes and bills due on the same are payable on the toUowing business day. KANSAS. The uniform negotiable instrumehts law has been adopted and days of grace are abolished. Sundays, January Ist, February 22d, May 30th, July 4th, Christmas, New Year's Day, Thanksgiving and fast days, and the first Monday of September, are holidays ; notes falling due on a holiday are pay- able on the next succeeding business day. When any holiday falls on Sun- day the next business day, is observed. Paper falling due Saturday is payable Monday, unless it is payable on demand, when it may be presented before twelve Saturday. KENTUCKY. The uniform negotiable instruments law is in effect, and no grace is al- lowed. Sundays, January 1st, February 12th and 22d, May 30th, July 4th, October 12th, the first Monday in September, Christmas Day, and days of pub- lie thanksgiving or fasting are holidays; notes falling due thereon are pay- able on the next succeeding business^ day. When any of said 'days occurs on Snliday, the following day is to be observed. 172 ABSTEACTS OP DAYS OF GEACE AND HOLIDAYS. LOUISIANA. The uniform negotiable instruments law has been adopted, and days of grace are abolished. Holidays are Sundays, January Ist and 8th, I'ebruary 22d, Good Friday, June 3d, July 4th, the 1st -Monday in September, October 12th, November 1st, December 25th, Thanksgiving, all general election days, and in the Parish of Orleans, Mardi Gras. In towns and cities of over 10,000 Saturday is a half-holiday, and whenever a legal holiday falls on Sunday the succeeding day is a holiday, and all notes, etc., requiring protest are payable on first full business day after maturity. Holidays and half- holidays not included in time for notice of non-acceptance or non-payment. Notes, etc., falling due on half-holiday may be presented on next succeeding business day. MAINE. Days of grace are abolished except on sight drafts. Sundays, public Thanksgiving, . January 1st, February 22d, April 19th, May 30th, July 4th, the first Monday of September, and December 25th, are holidays, and ne- gotiable instruments falling due on the same are payable on the succeeding business day. A holiday falling on Sunday is observed on Monday. Satur- day after twelve is a holiday for banking purposes, MAEYLAND. The uniform, negotiable instruments law has been adopted and days of grace are abolished. January 1st, February 22d, March 25th, May 30th, July 4th, September 12th, October 12th, December 25th, the first Monday in September, Good Friday, days of public Thanksgiving, and general election . days, and the day following when any of these falls on Sunday, are public holidays, and paper falling due on any of said days is payable on the busi- ness day next succeeding. Paper falling due on Saturday is payable on the next succeeding business day, but if on demand may be presented on Saturday before 12 o'clock. MASSACHUSETTS. The uniform negotiable instruments law is in effect, and grace is not al- lowed except on sight drafts and bills of exchange payable within the State. Instruments falling due on Sunday or a holiday are payable on the next succeeding business day. Those falling due on Saturday are to be presented on the next succeeding business day, except that if payable on demand they may be presented for payment before 12 o 'clock. Holidays are January 1st, February 22d, April 19th, May 80th, July 4th, October 12th, Thanksgiving, Christmas, .the first Monday in September, and the following day when any of these falls on Sunday. MICHIGAN. The uniform negotiable instruments law has been adopted and no days of grace are allowed. Bills and notes maturing on Sunday or a holiday are pay- able on the next succeeding business day. Holidays are January 1st, Febru- ary 22d, May 30th, July 4th, the first Monday of September, Christmas, gen- eral election days, and any day appointed as a day of fasting or Thanksgiving. When any holiday falls on Sunday the day following is a holiday. Saturday ABSTEACTS OF DAYS OF GEACE AND HOLIDAYS. 173 afternoon is a holiday for banking purposes, and notes falling due Saturday are payable on business day following. MINNESOTA. The uniform negotiable instruments law has been adopted and days of grace are abolished. Notes payable on Sunday, Thanksgiving, general elec- tion day, the first Monday of September, Good Friday, Christmas, New Year 's Day, February 12th, February 22d, May 30th, and July 4th, or on the fol- lowing day when either of the last six falls on Sunday, and notes due on Saturday are payable on the. business day next succeeding; but demand notes may be presented Saturday before noon. MISSISSIPPI. Grace is allowed on bills of exchange, notes, and drafts given for a sum certain. Notes, etc., falling due on Sunday, January 1st, April 26th, June 3d, July 4th, Thanksgiving, or Christmas Day, are payable on the secular day next succeeding. MISSOUEI. The uniform negotiable instruments" law is in force and grace is abolished. Sundays, January 1st, February 22d, May 30th, July 4th, first Monday of September, Christmas, Thanksgiving, and the day of general or primary elections, are public holidays, and negotiable instruments due thereon are payable on the next succeeding business day. Holiday falling on Sunday is observed on Monday. In cities of over 100,000 inhabitants, Saturday is a half -holiday, and notes falling due on that day are payable Monday, but if on demand may be presented before noon. MONTANA. The uniform negotiable instruments law is in effect and days of grace are abolished. Notes falling due on Sunday, January 1st, February 12th and 22a, May 30th, July 4th, October 12th, December 25th, the first Monday in September, election, fast or Thanksgiving days, are payable on the day fol- lowing. A holiday falling on Sunday is observed on Monday. NEBEASKA. The uniform negotiable instruments law has been adopted and grace is not allowed. Holidays falling on Sunday are observed on Moilday, and negotiable instruments falling due on Sunday or a holiday are payable on the next business day. Holidays are January 1st, February 12th and 22d, AprU 22d, May 30th, July 4th, October 12th, December 25th, the first Mon- day in September, Thanksgiving and Fast Days. Saturday is a half -holiday and only demand notes are presentable before twelve o'clock. NEVADA. The uniform negotiable instruments law has been adopted and days of grace are abolished. Notes, etc., payable on a holiday become due the next succeeding business' day. Holidays are Sundays, January 1st, February 12th 174 ABSTRACTS OF DAYS OF GEACE AND HOLIDAYS. and 22d, May 30th, July 4th, first Monday in September, October 31st, Thanksgiving, Christmas, and days of primary or general election. NEW HAMPSHIRE. The uniform negotiable instruments law has been adopted and grace is abolished except on sight drafts. Notes payable on Sunday, Thanksgiving, Fast, the general state election, February 22d, May 30th, July 4th, first Mon- day of September, Christmas, or on the following day when either of these days falls on Sunday, are due on the business day next succeeding. Satur- day is a half -holiday and only demand notes are presentable before twelve o 'clock. NEW JERSEY. The uniform negotiable instruments law has been adopted and days of grace are abolished. Notes, etc., falling due on Sunday, Christmas, New Year's Day, Good Friday, February 12th and 22d, May 30th, July 4th, the first Monday of September, October 12th, general election days, and any day of .public Thanksgiving or fasting are payable on the next succeeding busi- ness day. Holidays 'falling on Sunday are observed on Monday. Saturday is a half holiday and only demand notes, are presentable before twelve o'clock. NEW MEXICO. The uniform negotiable instruments law has been adopted and no grace is allowed. Notes, etc., falling due on Sunday or a holiday, are payable on the next succeeding business day. January 1st, February 22d, May 30th, July 4th, the first Monday in September, October 12th, December 25th, Thanksgiving, general election days, and fast days are legal holidays. Sat- urday is a half -holiday and only demand notes are presentable before twelve o'clock. NEW YORK. The uniform negotiable instruments law is in effect and days of grace are abolished. Sundays, January 1st, February 12th, rebrua:ry 22d, May 30th,' July 4th, the first Monday in September, October 12th, December 25th, Satur- day afternoons, any general election day, and any day appointed by the Governor or President as a day of Thanksgiving or fasting are holidays. Bills and notes falling due on a holiday or Saturday are payable on the next secular or business day; but demand notes due on Saturday may be pre- sented on that day before 12 o 'clock. Other holidays falling on Sunday are observed on Monday. NORTH CAROLINA. The uniform negotiable instruments law has been adopted and grace is allowed only on sight drafts. Sundays, January 1st and 19th, February 22d, May 10th, May 20th, July 4th, the first Monday in September, December 25th, Thanksgiving Day, and Saturday afternoons are public hoUdays. Bills and notes falling due on a holiday or Saturday are payable on the next busi- ness day; but those falling due on Saturday may be presented on that day before 12 o'clock. Other holidays falling on Sunday are observed on Mon- day. ABSTEACT8 OF DAYS OF GEACE AND HOLIDAYS. 175 NORTH DAKOTA. The uniform negotiable instruments law has been adopted and days of grace are abolished. Notes and bills due on Sundays and holidays are pay- able on next business day. January 1st, February 12th, February 22d, July 4th, December 25th, May 30th, first Monday in September, general election and Thanksgiving days, and Sundays are holidays. Other holidays falling on Sunday are observed on Monday. OHIO. The uniform negotiable instruments law is in force and days of grace are abolished. January 1st, February 22d, May 30th, July 4th, the first Monday in September, October 12th, December 25th, general election day afternoon, Saturday afternoon, and any day appointed as a day of fasting or Thanks- giving, are holidays, and notes, etc., due on Such days, or on Sundays, are payable on the business day next succeeding; if any holiday falls on Sunday, the following Monday is a holiday. Instruments falling due on Saturday are to be presented for payment on the next succeeding business day, but if payable on demand, may, at the option of the holder, be presented on Satur- day before noon. OKLAHOMA. Uniform negotiable instruments law adopted, and days of grace abolished. ' Holidays are Sunday, January 1st, February 22d, May 30th, July 4th,' Oc- tober 12th, December 25th, first Monday in September, general election, fast and Thanksgiving days. Holiday falling on Sunday is observed on Monday. Notes due on holiday are payable on next business day. OREGON. The uniform negotiable instruments law has been adopted and days of grace are abolished. Sundays, January 1st, February 12th and 22d, May 30th, July 4th, October 12th, December 25th, the first Monday of September, days of general election, fast and Thanksgiving, are holidays. Notes, etc., payable on a holiday are due on the next business day. PENNSYLVANIA. The uniform negotiable instruments law is in force and days of grace are abolished. Sundays, January 1st, February 12th and 22d, Good Friday, May 30th, July 4th, first Monday in September, October 12th, December 25th, first Tuesday after the first Monday in November (election day), fast and Thanksgiving days, are public holidays, and negotiable paper due on any of said days is payable on the next succeeding secular day. Saturday afternoons are half -holidays, and notes payable on Saturday are for purposes of protest considered as if payable on Monday, but demand notes may be presented Saturday before noon. When a holiday falls on Sunday, it is observed on Monday. THE PHILIPPINES. The uniform negotiable instruments law has been adopted and days of grace are abolished. Bills and notes maturing on Sunday, a holiday or a 176 ABSTRACTS OP DATS OF GRACE AND HOLIDAYS. Saturday half -holiday are payable on the next succeeding business day, but if on demand may be presented on Saturday before twelve o'clock. Holiday falling on Sunday is observed on Monday. Holidays are: Sunday, January 1, February 22, Thursday and Friday of Holy Week, May 1, May 30, July 4, Aug. 13, Thanksgiving, December 25, December 30, general election, and days of special elections designated by the Governor-General, and any other day designated by him as a holiday. POETO BICO. Days of grace are not allowed. Holidays are: Sundays, January 1, Febru- ary 22, March 22, Good Friday, May 30, July 4, July 25, general election days, and days appointed by the President of the United States or by the Governor or the Legislative Assembly as days of fasting or Thanksgiving or as holidays. When any other holiday falls on Sunday, Monday is observed. Bills and notes falling due on a holiday are payable on the next succeeding business iaj. RHODE ISLAND. The uniform negotiable instruments law is in effect and grace is allowed only on sight drafts. January 1st, July 4th, February 22d, May 30th, and Christmas Day, or when either of said days falls on Sunday the day follow- ing it, the second Friday in May, the first Monday of September, October 1 2th, the Tuesday after the first Monday in November, days of Thanksgiving or fast are holidays, and payment of all notes, checks, and bills, due and payable on such holidays, is to be made on the secular day next succeeding. Saturday after twelve o 'clock is a holiday for bank purposes. SOUTH CAROLINA. The uniform negotiable instruments law has been adopted and days of grace abolished. Paper falling due on Saturday or on a holiday is payable on next business day; but instruments payable on demand may be presented on Saturday before twelve o 'clock if that entire day is not a holiday. Holidays are January 1st and 19th, February 22d, May 10th, June 3d, July 4th, December 25th, the first Monday in September and days of Thanksgiving and general election. SOUTH DAKOTA. Uniform negotiable instruments law adopted aiid days of grace abolished. Notes due on holidays are payable on next business day. January 1st, Feb- ruary 22d, July 4th, December 25th, May 30th, and days of general election and Thanksgiving days are holidays. If any of the first four falls on Sun- day, the Monday following is a holiday. TENNESSEE. The uniform negotiable instruments law is in force and days of grace are abolished. January 1st, January 19th, February 22d, May 30th, June 3d, July 4th, Good Friday, first Monday in September, December 25th, Thanks- giving Day, and general election days are holidays. Holidays falling on ABSTRACTS OF DAYS OF GRACE AND HOLIDAYS. 177 Sunday are observed on Monday. Notes, etc., falling due on Sunday or a holiday are payable on the next succeeding business day. Those falling due on Saturday are payable the next succeeding business day, except that those payable on demand may at the option of the holder be presented before 12 'clock on Saturday, when that entire day is not a holiday. TEXAS. Grace is allowed on all negotiable notes and bills. Sundays, January 1st, February 22d,, March 2d, April 21st, July dth, December 25th, the first Mon- day in September, general election days, and days of public fasting or thanks- giving are holidays. If a holiday occurs on Sunday, the next day is observed as a holiday, but presentment of commercial paper for acceptance or pay- ment in such case may be made on the Saturday previous. UTAH. The uniform negotiable instruments law has been adopted and grace is not allowed. Sundays, January 1st, February 12th and 22d, April 15th, May 30th, July 4th, July 24th, October 12th, December 25th, the first Monday in September, Fast and Thanksgiving days are holidays. Holidays falling on Sunday are observed on Monday. Notes, etc., falling due on a holiday are payable on the next succeeding business day. Those falling due on Saturday are payable on Monday, except that those payable on demand may at the option of the holder be presented before 12 o'clock on Saturday. VERMONT. Days of grace are abolished. Notes falling due on a holiday are payable on the following business day. Sundays, January 1st, February 22d, July 4th, May 30th, August 16th, October 12th, December 25th, the first Monday in September, fast and Thanksgiving days are legal holidays. When any other holiday falls on Sunday the Monday following is a holiday. VIRGINIA. The uniform negotiable instruments law is in effect and days of grace are abolished. January 1st and 19th, February 22d, May 30th, July 4th, the first Monday in September, December 25th, days of public Thanks- giving or fast are holidays, and notes, etc., falling due thereon or on Satur- days are payable on the secular day next succeeding. When any holiday falls on Sunday the Monday following is observed as a holiday. WASHINGTON. The uniform negotiable instruments law has been adopted and days of grace are abolished. Sundays, January 1st, February 12th and 22d, May 30th, July 4th, October 12th, December 25th, the first Monday in September, days of general election and Thanksgiving are holidays, and notes falling due thereon are payable on the next succeeding secular day. WEST VIRGINIA. The uniform negotiable instruments law has been adopted and days of grace are abolished. Notes, etc., falling due on Sunday or a holiday are pay- 12 178 AGENCY. able on the next succeeding business uay; those falling due Saturday, if not ' paid before noon, are payable Monday. January 1st, i'ebruary 12th and 22d, July 4th, May 30th, October 12th, December 25th, the first Monday in Sep- tember, election and Thanksgiving days are holidays. A holiday falling on Sunday is observed on Monday. WISCONSIN. The uniform negotiable instruments law has been adopted and days of grace are abolished. Negotiable paper falling due on Sunday, January 1st, February 22d, May 30th, July 4th, December 25th, Thanksgiving Day, Ia,bor Day, general election days, is payable on the secular day next succeed- ing. Holidays falling on Sunday are observed on Monday. WYOMING. The uniform negotiable instruments law is in force and grace is not al- lowed. January 1st, February 12th and 22d, May 30th, July 4th, December 25th, Arbor Day, general election day, and Thanksgiving Day are holidays. If such holiday falls on Sunday, the Monday following is a legal holiday. Notes due on holiday or on Saturday or Sunday are payable on next business day, but demand notes may be presented Saturday before noon. CHAPTER XVI. AGENCY. Section I. AGENCY IN GENERAIj. The relation of principal and agent implies that the principal acts by and through the agent, so that the acts in fact of the agent are the acts in law of the principal ; and oily when one is authorized by another to act for him in this way, and to this ex- tent, is he an agent. One who is disqualified from contracting on his own account may act as the agent'of another ; thus infants, married women, and aliens may act as agents for others. A principal is responsible for the acts of his agent, not only when he has actually given full authority to the agent thus to represent and act for him, but when he has, by his words, or his acts, or both, caused or permitted the person with whom the agent deals to believe him to be clothed with this authority. AncJ AGENCY IN GENERAL. 179 a man may be thus held as a principal, either because he has in some way authorized all persons to believe that he has ijonsti- tuted some other man his agent, or because he has authorized only the party dealing with the supposed agent to so believe. For all responsibility rests upon two grounds, which are com- monly united, but either of which alone is sufficient; one, the giving of actual authority ; the other, such appearing to give au- thority as justifies those who deal with the supposed agent in be- lieving that this authority was given him. A general agent is one authorized to represent his principal in all his business, or in all his business of a particular kind. A particular agent is one authorized to do only a specific thing or a few specified things. It is not always e£tsy to discriminate between these ; but it is often important, by reason of the rule that the authority of the general agent is measured by the usual scope and character of the business he is empowered to transact: By appointing him to do that business, the principal is considered as saying to the world that his agent has all the authority neces- sary to the doing of it in the usual way. And if the agent tran- scends his actual authority, but does not go beyond the natural and usual scope of the business, the principal is bound, unless the party with whom the general agent dealt knew that the agent exceeded his authority. For if an agent does only what is natu- ral and usual in transacting business for his principal, and yet goes beyond, the limits prescribed by him, it is obvious that the principal must have put particular and unusual limitations to his authority ; and these cannot affect the rights of a third party who deals with the agent in ignorance of these limitations. But, on the other hand, the rule is, that, if an agent who is specially au- thorized to do a specific thing exceeds his authority, the principal is not bound, because the party dealing -with such agent must in- quire for himself, and at his own peril, into the extent and limits of the authority given to the agent. Here, however, as before, if the party dealing with the agent, and .inquiring, as he should, into his authority^ hag sufficient evidence of this authority fur- nished to him by the principal, and, in his dealings W'ith the agent, acts within the limits of the authority thus proved, he can- not be affected by any reservations and limitations made secretly by the principal, and wholly unknown to the person dealing with the agent. 180 AGENCY. Section II, HOW AUTHORITY MAY BE GIVEN TO AN AGENT, It may be given under seal, or in writing without seal, or orally. If given by a written instrument, this instrument is called a Power of Attorney, of which we shall give various forms at the close of this chapter. An oral appointment authorizes the agent to make a written contract, but not to execute instruments under seal. But an instrument under seal, signed and sealed in the principal's presence, and by his request and authority, will be regarded as the principal's deed, made by himself. One em- ployed by another to act for him in the usual trade or business of the agent, as auctioneer, broker, or the like, acquires thereby authority to do all that is necessary or usual in that business. And if a person puts his goods into the custody of another whose ordinary and usual business it is to sell such goods, he authorizes the whole world to believe that this person has them for sale, and any person buying them honestly, in this belief, would hold them. Therefore, if fraudulent by-bidding be procured or permitted hy the auctioneer, even without the knowledge of the owner of the goods, the owner is answerable for this fraud of his agent, and the buyer has a right to refuse to take the goods. So neither party is bound until the agreement of sale is completed. There- fore the auctioneer may withdraw any article, and a bidder may withdraw any bid, until the article is "knocked down," but not afterwards ; for then the sale is completed, and the property in (or ownership of) the article passes to the buyer. If one is repeatedly employed to do certain things, — as a wife or a son to sign bills or receipts ; or a domestic servant to make purchases ; or a merchant or broker to sign policies, and the like, • — in all these cases, one dealing with the person thus usually employed, is justified in believing him authorized to do those things with the assent and approbation of his employer, and in the same way in which he has done them, but not in any other way. Thus, if a servant is usually employed to buy, but always for cash, this implies no authority to buy on credit. An agency may be confirmed and established, and in fact created, by a subsequent adoption and ratification; and a rati- fication relates back to the original transaction. A corporation is bound by the ratification of an agent's acts, in the same man- HOW AUTHORITY MAY BE GIVEN TO AN AGENT. Igl ner as an indiyidual would be. But no ratification is effectual to bind the principal, unless made by the principal with a knowl- edge of all the material facts. And there can be ratification only where the act is done by one purporting to be an agent, or by an assumed authority. Generally, one who receives and holds a beneficial result of the act of another as his agent, is not per- mitted to deny such agency ; and in some cases this is extended even to acts of such agent under seal. Thus, if an agent sell under seal property of a supposed prin- cipal, an individual or a corporation, and receive payment, and hand this over to the principal, if the principal could show that the agent had no authority, he might avoid the sale, and recover the property ; but he could not do this and also hold the money paid for it. And if one, knowing that another has acted as his agent, does not disavow the authority as soon as he conveniently can, but lies by and piermits a person to go on and deal with the supposed agent, or to lose an opportunity of indemnifying him- self, this is an adoption and confirmation of the acts of the agent. Nor can a supposed principal adopt a part for his own benefit, and repudiate the rest of the supposed agency; he must adopt the whole or none. If an agent makes a sale, and his principal ratifies the sale, he thereby ratifies the agent's representations made at the time of the sale and in relation to it, and is bound by them. The whole subject of mercantile agency is influenced and gov- erned by mercantile usage. Thus, as to the difference between factors and brokers, the law adopts a distinction usual among merchants, although it may not always be regarded by them. A factor is a mercantile agent for sales and purchases, who has pos- session of the goods ; a broker is such agent, but without posses- sion of the goods. Hence, a factor may act for his principal, and yet in his own name, because the actual owner, by delivering to him the goods, gives to him the appearance of an owner ; but a, broker must act only in the name of his principal. A purchaser of goods from a factor may set off against the price a debt due from the factor, unless he buys the goods know- ing that they are another's; not so, if the purchaser buy from a broker. Again, a factor has a lien on the goods for his claims against his principal ; but a broker generally has not. 182 AGENCY. One may be a factor as to all rights and duties, who is called a broker ; as an exchange-broker, who has notes for sale on dis- count, certificates of stock, etc., delivered into his possession; aud such broker, being actually a factor, would have a lien on the policies of insurance or other documents held by him, for his commissions and charges about those documents. A cashier of a bank, or other official person, may be an agent for those whose officer he is, or for others who employ him. He has, without special gift, all the authority necessary or usual to the transaction of his business. But he cannot bind his employ- ers by any unusual or illegal contract made with their customers. The same law, and the same qualifications, apply to the case of officers of railroad companies, or other corporations. Their acts bind their employers or companies, so far as they have authorized those acts, or have justified those who dealt with the officers in believing that the officers possessed such authority, but no further. Nor would the acts or permissions of such officer have any validity if they violate his official duties, and are certainly and obviously beyond his power, even if sanctioned by his directors ; as if the cashier of a bank permitted overdrawing, or the like. And parties who deal with such agent in such a transaction woilld be unable to hold the principal ; for the law would consider them as knowing that the officer could have no right to do such things. Therefore, the general agent of a corporation, clothed with a certain power by the charter or the lawful acts of the corpora- tion, may use that power for an authorized, or even a prohibited purpose, in his dealings vdth an innocent third party, and render the corporation liable for his acts, if they be really within the power given him, or seem to be within it by the fault or act of the corporation ; but not otherwise. Thus, a treasurer of a cor- poration has- no power to release a claim which belongs to the corporation. Section III. EXTENT AND DURATION OF AUTHORITY. A GENERAL authority may continue to. bind a principal after its actual revocation, if the agency were known, and the revoca- tion be wholly unknown to the party dealing with the agent, without that party's fault. EXTENT AND DURATION OE AUTHORITY. 183 An authority to sell implies an authority to sell on credit, if that be usual, otherwise not; and if an agent sells on credit without any authority, or by exceeding his authority, the princi- pal may claim his goods from the purchaser, or hold the agent responsible for their price. Neither an auctioneer, nor a broker employed to sell, has any right to sell on credit, unless this au- thority is given him expressly, or by some known and established usage. And the agent i^ generally responsible if he mixes the goods of his principal with his own, in such a manner as to con- fuse them together, or takes a note payable to himself, unless this be authorized by the usage of the trade. If the agent (or factor) takes a note payable, to himself, and becomes bankrupt, such note belongs to his principal, and iiot to the agent 's assignees. A power to sell gives a power to warrant, where there is a dis- tinct usage of making such sales with warranty, and the want of authority to warrant is unknown to the purchaser, without his fault ; and not otherwise. Thus, it has been held that an author- ity to sell a horse implies an authority to sell with warranty, be- cause horses are usually sold with warranty. A general author- ity to sell goods carries with it an authority to sell by sample. General authority to transact business, or even to receive and discharge debts, does not enable an agent to accept or indorse bills or notes, so as to charge his principal. Indeed, special au- thorities to indorse are construed strictly. But this authority may be implied from ,the previous usage of the agent, recognized and sanctioned by the principal. Where a confidential clerk was accustomed to draw bills for his employer, and this employer had authorized him m one instance to indorse, and on two other occasions had received money obtained by his indorsement of his employer's name, the court held that a jury might consider the clerk authorized generally to indorse for his employer. An agent to receive cash has no authority to take bills or notes, ex- cept bank-notes. If an agent sells and makes a material representation which he believes to be true, and the principal knows it to be false, and does not correct it, this is the fraud of the principal, and avoids the sale. If an agency be justly implied from general employment, it may continue so far as to bind the principal after his withdrawal 184 ■ AGENCY. . of the authority, if that withdrawal be not made known, in such way as is usual or proper, to all who deal with the agent as sueh. Revocation, generally, is always in the power and at the will of the principal. His death operates of itself a revocation. But the death of an agent does not revoke the authority of a sub- agent appointed by the agent under an authority given him by the principal. If the power be coupled with an interest, — as where one gives a person power to sell goods and apply the money for his own benefit, or the like, — or if it is given for a valuable consideration, and the continuance of the power is req- uisite to make the interest available, then it cannot be revoked at the pleasure of the principal. Marriage of a woman revokes a revocable authority given by her while single. If an agent to whom commercial paper is given for collection be negligent or mistaken about it, and so in fault towards his principal, the measure of his responsibility is the damage actually sustained by his principal. If a bank receive notes or bills for collection, although charg- ing no commission, the possible use of the money is consideration enough to make them liable as agents having compensation ; that is, liable for any want of due and legal diligence and care. But if the bank exercise proper skill and care in the choice of a col- lectiag agent, or of a notary, or other person or officer, to do what may be necessary in relation to the paper committed to them, the bank is not liable for his want of care or skill. In general, an exigency, or even necessity, which would make an extension of the power of an agent very useful to his employer, will not give that extension. A master of a ship, however, may sell it, in case of necessity, or pledge it by bottomry, to raise money. But this is a peculiar effect of the law-merchant, to be considered more fully in the chapter on the Law of Shipping; and no such general rule applies to ordinary agencies, Section IV. THE EXECUTION OP AUTHORITY. Generally, an authority must be conformed to with great strictness and accuracy; otherwise, the principal will not be bound, although the agent may be bound personally. But the LIABILITY OF AN AGENT. -^85 old strictness is now abated considerably ; and, whatever be the form or manner of the signature of a simple contract, it will be held to bind the principal, if that were the certain and obvious intent. In the case of sealed instruments, the ancient severity is more strictly maintained. That the authority must be conformed to with strict accuracy, in all matters of substance, is quite certain ; but the whole instru- ment will be considered, in order to ascertain the intention of the parties and the extent of authority. A power given to two can- not be executed by one ; but some exception to the rule as to joint power exists in the case of public agencies, and also in many com- mercial transactions. Thus, either of two factors — whether part- ners or not — ^may sell goods consigned to both. And where there are joint agents, whether partners or not, notice to one is notice to both. In commercial matters, usage, or the reason of the thing, may sometimes seem to add to an authority; so far, at least, as is requisite for the full discharge of the duty committed to the agent in the best and most complete manner. Thus, it is held that an agent to get a bill discounted may indorse, it in the name of his principal, unless he is expressly forbidden to indorse. So a broker, employed to procure insurance, may adjust a loss under the same; but he cannot give up any advantages, rights, or se- curities of the assured, by compro*Qise or otherwise, without spe- cial authority. Section V. LIABILITY OP AN AGENT. ■ Generally, an agent makes himself liable by his express agree- ment, or by transcending his authority, or by a material depart- ure from it, or by concealing his character as agent, or by such conduct as renders his principal irresponsible, or by his own bad faith. If he describes himself as agent for some unnamed prin- cipal, he is not liable, unless he is proved to be the real principal. If an agent execute an instrument the language of which would hold him personally, he cannot exonerate himself by showing that in fact he signed it as agent, and that this was known to the other party; because this would be to vary the terms of a writ- 186 AGENCY. ten contract by evidence, which is not permitted, as we have be- fore stated. A party with whom an agent deals as agent cannot hold him personally, on the ground that he transcended or departed from his authority, if that party knew at the time that the agent did so. If he exceeds his authority, he is liable on the whole contract, although a part of it is within his authority. One who, having no authority, acts as agent, is personally responsible. But if an agent transcends his authority through an ignorance of its limits which is actual and honest, and is not imputable to his own neg- lect of the means of knowledge, he would not be held, unless an innocent party dealing with him as agent would otherwise suffer loss. Section VI. EIGHTS OF ACTION GROWING OUT OP ASENCT. If an agent intrusted with goods sell the same without author- ity, the principal may afSrm the sale, and sue the buyer for the price, or he may disafBrm the sale, and recover the- goods from the buyer. In case of a simple contract, that is, a contract not under seal, an undisclosed principal may show that the nominal party was actually his agent, and thus make himself actually a party to the contract, and sue upon it; but if the other party has pre- viously in good faith settled with the supposed agent,, or paid him anything, in cash or by charge, or in account, this other party must not lose by the coming forward of the principal. So, too, an undisclosed principal, when discovered, may be made liable on such contract ; but would be protected, if his accounts or relations with his agent had been in the meantime changed in good faith, so as to make it detrimental to him to be held liable. If one sells to an agent, khowing him to -be an agent, and know- ing who is his principal, and elects to charge the goods to the agent alone, he cannot afterwards transfer the charge to the principal. Notice to an agent, before the transaction goes so far as to /ender the notice useless, is notice to the principal. And knowl- edge obtained by an agent in the course of the transaction itself is the same thing as knowledge of the principal. Notice to an officer or member of a corporation is notice to that corporation. HOW A PEINCIPAL IS AFFECTED BY ACTS OF HIS AGENT. 187 if the officer or member, by appointment, or: by usage, had au- thority to receive it for the corporation ; but notice to any mem- ber is not necessarily notice to a corporation. Section VII. HOW A PRINCIPAL IS Ai'PECTED BY THE ACTS OF HIS AGENT. Ip an agent makes a fraudulent representation, a principal will be liable for resulting injury, although personally ignorant and innocent of the wrong; nor can he take any benefit there- from. A principal cannot, of course, restrict his liability by calling himself an agent, although this is sometimes' attempted. Payment to an agent of money due to the principal binds the principal only when it is made to the agent in the regular course of business. Payment to a sub-agent appointed by the agent, but whose appointment is not authorized by the principal, binds the agent, and renders him liable to the principal for any loss of the money in the -sub-agent's hands. Where a legacy was left to a tradesman, and the executors paid it to, a shopman who was in the habit of receiving daily payments, this was held not a suffi- cient payment to discharge the executors. And, generally, a shopman authorized to receive money at the counter, or any person authorized to receive money at any particular place or in any particular way, is not thereby authorized to receive it in any other place or in any other way. Nor is the principal boimd, if the agent be authorized to receive the money, but, instead of actually receiving it, discharge a debt due from him to the payer, and then give a receipt as for money paid to his principal, unless it can be shown that he has special authority to receive payment in this way, or that such payment is justified by known usage. In general, although a principal may be responsible for the deliberate fraud of his agent in the execution of his employment, he is not responsible for his criminal acts, unless he expressly commanded them. There is, however, a. class of cases in which the principal has intrusted property to his agent, and the agent has used it illegally; and this act of the agent is evidence, which if unexplained and unanswered, suffices to render the principal liable criminally, without proof of his direct participation in the act itself. The smuggling of goods, the issue of libellous publi- 188 AlGfENCY. . cations, and the sale of intoxicating liquors, by agents, belong to this class. Section VIII. MUTUAL RIGHTS AND DUTIES OF PRINCIPAL AND AGENT. An agent cannot depart from his instructions without making himself liable to his principal for the consequences. In deter- mining the purport or extent of his instructions, custom and usage in like cases will often have great influence ; because, on the one hand, the agent is entitled to all the advantages which a known and established usage would give him ; and, on the other, the principal has a right to expect that his agent will conduct himself according to such usage. But usage is never permitted to prevail over express instructions. A principal who accepts the benefit of an act done by his agent beyond or aside from his instructions, discharges the agent from responsibility therefor. And any unnecessary delay in renouncing the transaction, or any endeavor to wait and make a profit out of it, is an accept- ance of the act. But if the agent has bought goods for his prin- cipal without authority, the latter may renounce the purchase, and, nevertheless, hold the goods as security for his money, if that has been advanced on them. In general, every agent is entitled to indemnity from his prin- cipal, when acting in obedience to his lawful orders, or when he, in conformity with his instructions, does an act which is not wrong in itself, and which he is induced by his principal to sup- pose right at that time. An attorney or agent cannot appoint a sub-attorney or agent, unless authorized to do so expressly, or by a certain usage, or by the obvious reason and necessity of the case. Thus, a consignee or factor for the sale of merchandise may employ a broker to sell, when this is the usual course of business. A sub-agent, ap- pointed without such authority, is only the agent of the agent, and not the agent of the principal ; unless his appointment is in some way authorized or confirmed and ratified by the principal. An agent is bound to use, in the affairs of his principal, all that care and skill which a reasonable man would use in his own. And he is also bound to the utmost good faith. Where, how- ever, an agent acts gratuitously, without an agreement for com- MUTUAL EIGHTS OF PEINCIPAL AND AGENT. 189 pensation, or any legal right to compensation growing out of his services, he will not be held responsible for other than gross neg- ligence. A strictly gratuitous agent will be held responsible for property intrusted to him, if it be lost or injured by his gross negligence. For any breach of duty, an agent is responsible for the whole injury thereby sustained by his principal ; and, generally, a ver- dict against the principal for misconduct of the agent measures the claim of the principal over against the agent. The loss must be capable of being made certain and definite; and then the agent is responsible, if it could not have happened but for his misconduct, although not immediately caused by it. Thus, where an insurance-broker was directed to effect insurance on goods "from Gibraltar to Dublin," and caused the policy to be made, "beginning from the lading of the goods on board," and they were laden on board at Malaga, and went thence to Gibraltar, and sailed for Dublin, and were lost on the voyage, so that the policy did not cover them because they were not laden at Gibral- tar, this was held to be gross negligence on his part, and he was held responsible for the value of the goods. If any agent embezzles his employer's property, it is quite clear that the employer may reclaim it whenever and wherever he can distinctly trace and identify it. But if it be blended in- distinguishably with the agent's own goods, and the agent die or become insolvent, the principal can claim only as a common creditor, as against other creditors : but as against the factor or agent himself, the whole belongs in law to the principal; be- cause the factor or agent had no right thus to mix up the property of another with his own, and if he chooses to do so, he must lose all of his own property that cannot be separated from that which is not his own. An agent employed to sell property cannot buy it himself; nor, if employed to buy, can he buy of himself ; unless expressly authorized to do so. Nor can a trustee purchase the property he holds in trust for another. But the other party may ratify and confirm such sale or purchase by his agent ; and he will do this, by accepting the proceeds and delaying any objection for a long time after the wrongful act is made known to him. And if a trustee or agent to sell property buys it, not in his own name, but through somebody else, the sale is void. 190 AGENCY. Among the obvious duties of all agents is that of keeping an exact account of their doings, and particularly of all pecuniary^ transactions. .After a reasonable time has elapsed, the court will presume that such an account was rendered, accepted, and seti- tled. Otherwise, every agent might always remain liable t6 be called upon for such account. Moreover, he is liable not only for the balances in his hands, but for interest; or, even, where there has been a long delay to his own profit, he might be liable for compound interest, on the same ground on which it has been charged in similar cases against executors, trustees, and guard- ians. No interest whatever would be charged, if such were the intention of the parties, or the effect of the bargain between them ; and this intention may be inferred either from direct or circum- stantial evidence, — as the nature of the transaction, or the fact that the principal knew that the money lay useless in the agent's hands, and made no objection or claim. The general rule is, that a principal may revoke his agency, and an agent may throw up the agency, at pleasure. But neither would be permitted to exercise this power in an xmfair and in- jurious manner which circumstances do not require or justify, without being responsible to the other party for any damages caused by his wrongful act. Insanity revokes authority, especially if legally ascertained. But if the principal, when sane, gave an authority to his agent, and a third party acts with the agent in the belief of his au- thority, but after the insanity of the principal has revoked it, the insanity not being known to this third party, this revocation will not be permitted to take eifect to the injury of this third party. Section IX. FACTORS AND BEOKERS. All agents who sell goods for their principals, and guarantee the price, are said in Europe to act under a del credere commisr sion. In this country, this phrase is seldom used, nor is such guaranty usually given, except by commission-merchants. And where such guaranty is given, the factor is so far a surety, that his employers must first have recourse to the principal debtor. Still his promise is not "a promise to pay the debt of another," FACTORS AND BROKERS. 19| within the Statute of Frauds. Nor does he guarantee the safe arrival of the money received by him in payment of the goods, and transmitted to his employer, but he must use proper caution in sending it. And if it is agreed that he shall guarantee the remittance, and charge a commission for so doing, he is liable, although he does not charge the commission. If he takes a note from the purchaser, this note is his employer's; and if he takes depreciated or bad paper, he must make it good. A broker or factor is bound to the care and skill properly be- longiag to the business which he undertakes, and is responsible for the want of it. A factor intrusted with goods may pledge them for advances to his principal, or for advances to himself to the extent of his lien for charges and commissions. And his power to pledge them, which grows out of the law-merchant, has been much enlarged by statute in many of our States. The mere wishes or intimations of his employer, if sufficiently distinct, have the force of instructions. Thus, in New York, a principal wrote to his factor, stating that he thought there was a short supply of the goods he had consigned, and giving facts on which his opinion Was founded, and concluded, "I have thought it best for you to take my pork out of the market for the present, as thirty days will make an important change in the value of the article." This was considered by the court to be a distinct in- struction, binding upon the factor; and he was therefore held liable for the loss caused by selling the pork within the thirty days. All instructions the agent or factor must obey ; but may still, as we have already stated, depart from their letter, if in good faith, and for the certain benefit of his employer, in an unforeseen exigency. Having possession of the goods, he may insure them ; but is not bound to do so, nor even to advise insurance, unless requested, or unless a distinct usage makes this his duty. He has much discretion as to the time, terms, and manner of a sale, but must use this discretion in good faith ; for a sale which is pre- cipitated by him without reason and injuriously is void, as unauthorized. If he send goods to his principal without order, or contrary to his duty, the principal may return them, or, acting in good faith and for the benefit of the factor, may sell them as the factor's goods. 192 AGENCY. Although a factor charges no guaranty commission, he is liable to his principal for his own default ; so he is if he sells on credit, and, when it expires, takes a note to himself; but if he takes at th& time of the sale a negotiable note. from a party in fair credit, and^^he note is afterward dishonored, this is the loss of his employer, unless the factor has guaranteed it. If he sells the goods of many owners to one purchaser, taking p, note for the whole to himself, and gets it discounted for his own use or accommodation, he is then liable without any guaranty for the payment of that note. So he is if he gets discounted for his own use a note taken wholly for his principal's goods. But he may discount the note to reimburse himself for advances, with- out making himself liable. If he sends his own note for the price to his employer, he must pay it. As a factor has possession of the goods, he may use his own name in all his transactions, even in suits at law; but a broker can buy, sell, receipt, &c., only in the name of his employer. So, a factor has a lien on the goods in his hands for his advances, his expenses, and his commissions, and for the balance of his general account. And the factor may sell from time to time enough to cover his advances, unless there be something in his employment or in his instructions from which it may be inferred that he had agreed not to do so. But a broker, having no possession, has no lien. The broker may act, for both parties, with the knowledge and consent of both, but not otherwise, and often does so. But, from the nature of his employment, a factor should act only for the party employing him. A broker has no authority to receive payment for the goods he sells, unless that authority be given him, expressly or by usage. Nor will payment to a factor discharge a debtor who has received notice from the principal not to make such payment. Generally, neither factor nor broker can claim their eommis-. sions until their whole service be performed, and in good faith, and with proper skill, care, and industry ; and their negligence may be given in evidence either to lessen their compensation or commission, or to bar them altogether. But if the service begins, and is interrupted wholly without their fault, they may claim a proportionate compensation. If either bargain to give his whole time to his employer, he will not be permitted to derive any compensation for services rendered to other persons. Nor can i'OEMS OF POWER OF ATTORNEY, ETC. 193 either have any valid claim against any one for illegal services, or those which violate morality or public policy. A broker is entitled to his commission when he produces a customer able, ready and willing to purchase; and it is imma- terial whether his principal carries out the contract or not. A principal cannot revoke an authority given to a factor, after advances made by the factor, without repaying or securing the factor. The distinction between a foreign and a domestic factor is quite important, as they have quite different rights, duties, and powers, by the law-merchant generally. A domestic factor is one who is employed and acts in the same country with his principal. A foreign factor is one employed by a principal who lives in a different country ; and a foreign factor is as to third parties— for most purposes and under most circumstances — a principal. Thus, they cannot sue the principal, because they are supposed to con- tract with the factor alone, and on his credit, although the prin- cipal may sue them; and a foreign factor is personally liable, although he fully disclose his agency, and his principal is known. The following forms of powers of attorney are those most frequently required; and from them, by suitable alterations, powers of attorney may be framed for any purpose ; (81.) Power of Attorney. Enow all Men by these Presents, That I (the name of the prin- cipal or party appointing) of (residence) have constituted, ordained, and made, and in my stead and place put, and by these presents do. constitute, ordain, and make,, and in my stead and place put (name of at- torney) to be my true, suflScient, and lawful attorney for me and in my name and stead to (here set forth the purposes for which the power is given) Giving and hereby granting unto him, the said attorney, full power and authority in and about the premises; and to use all due means, course, and process in law, for the full, effectual, and complete execution of the business afore described; and in my name to make and execute due acquittance and discharge; and for the premises to appear, and the person of me the constituent to represent, before any governor, judges, justices,, officers, and ministers of the law whatsoever, in any court or courts of judicature, and there on my behalf, to answer, defend, and reply unto all actions, causes,, matters, and things whatsoever relating to the premises. Also to submit any matter in dispute, respecting the premises, to arbitration or otherwise; with full power to make and substitute, for the purposes 13 194 AGENCY. aforesaid, one or more attorneys, under him, my said attorney, and the same again at pleasure to revoke. And generally to say, do, act, transact, de- termine, accomplish, and finish all matters and things whatsoever relating to the premises, as fully, amply and effectually, to all intents and purposes, as I, the said constituent, if present, ought or might personally, although the matter should require more special authority than is herein comprised, I, the said constituent ratifying, allowing, and holding firm and valid all whatsoever my said attorney or his substitutes shall lawfully do, or cause to be done, in and about the premises, by virtue of these presents. In Witness Whereof, I have hereunto set my hand and seal this day of in the year of our Lord nineteen hundred and .^__^_ (Signature.) (Seals.) Signed, Sealed, and Delivered in the Presence of us Sometimes a power of attorney is given without any power of substitution. This may be by inadvertence, or because it was not intended that the attorney should substitute anybody in his ' place. Afterwards, if it is desired to give him this power to substitute others, this may be done by a separate instrument. (82.) Power to Appoint Substitute Attorney. Know all Men by these Presents, That, whereas I have hereto- fore by a letter "of attorney, dated , a copy of which is hereto an- nexed, appointed of , as my true and lawful attorney, for the purposes and with the powers therein set forth, but without giving to my said attorney power to substitute any attorney under him. I now authorize and empower him, my said attorney, to substitute and appoint one or more attorneys under him, my said attorney, for the purposes and with the powers set forth in said letter, and the same at pleasure to revoke. Hereby ratifying and confirming all that my said attorney or his substi- tutes may do in the premises by virtue of said letter of attorney and of these presents. In Witness Whereof, etc. (83.) Appointment of Substitute. Know all Men by these Presents, That I by virtue of the power and authority to me given, in and by the letter of attorney of (the principal) which is hereunto annexed (or described without being annexed), do. make, substitute and appoint (name of substitute) as well for me as the true and lawful attorney and substitute of the said constituent named in the said letter of attorney, to do, execute, and perform all and everything requisite and necessary to be done, as fully, to aU intents and. purposes, as the said constituent or I myself could do if personally present ; FORMS OF POWER OF ATTORNEY, ETC. 195 hereby ratifying and confirming all that the said attorney and substitute hereby made shall do ,in the premises by virtue hereof and of the said letter of attorney. In Witness Whereof, etc. (84.) Power of Attorney in a Shorter Form. Enow all Men by these Presents, That I _- (name of principdl) have made, constituted and appointed, and by these presents do make, con- stitute and appoint - (name of attorney) my true and lawful attor- ney for me and in my name, place and stead to (here describe the thing to be done) giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatso- ever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney or his substitutes shall lawfully do or cause to be done by virtue hereof. In Witness Whereof, etc. (85.) General Power of Attorney. Know all Men by these Presents, That I of , do hereby make, constitute and appoint of , my true and lawful at- torney, with full power of substitution, for me and in my name and stead, to do any and all acts, and transact any and all business of every kind and nature relating to my property and affairs of every description, as fully and effectually as I could do if personally present, and in my name to exe- cute, acknowledge and deliver, and to seal with my seal, all written instru- ments which may be necessary or proper for the full and perfect transaction of such business ; hereby ratifying and confirming all that my said attorney or his substitutes may lawfully do under and by virtue of these presents. In Witness Whereof, etc. If the attorney is to be authorized to convey real estate, this should be expressly stated, and the powers given him should be fully and specifically set forth. The instrument must also be acknowledged and recorded in the same manner as a deed. The following clause — with such alterations as the special powers to be granted may require — will serve as a model : "Also giving to my said attorney full power to manage, lease, mortgage, sell, or exchange any and all real estate, wherever situated, which I now own or may hereafter own, for such consideration and on such terms as he may see fit, and to execute, acknowledge and deliver in my name, and seal with my 196 AGENCY. seal, auy and all deeds, leases, mortgages and other written instruments which may at any time be necessary or proper to carry into effect the powers hereinbefore granted. ' ' (86.) Full Power of .Attorney to Demand and Recover Debts. Know all Men by these Presents, That I (na/me of principal) have constituted, ordained and made, and in my stead and place put, and by these presents do constitute, ordain, and make, and in my stead and place put (name of attorney) to be my true, sufScient and lawful at- torney for me and in my name and stead, and to my use, to ask, demand, levy, require, recover and receive of and from all and every person or persons Avhomsoever the same shall or may concern, all and singular sum and sums of money, debts, goods, wares, merchandise, effects and things, whatsoever and wheresoever they shall and may be found due, owing, payable, belonging and coming unto me the constituent, by any ways and means whatsoever. Giving and hereby Granting unto my said attorney full and whole strength, power and authority in and about the premises; and to take and use all due means, course and process in the law, for the obtaining and recovering the same; and of recoveries and receipts thereof, and in my name to make, seal and execute due acquittance and discharge; and for the premises to appear, and the person of me the constituent to represent, before any governor, judges, justices, officers and ministers of the law whatsoever, in any court or courts of judicature, and there, on my behalf, to answer, defend and rely upon all actions, causes, matters and things - whatsoever, relating to the premises. Also to submit any matter in dispute to arbitration or otherwise, with full power to make and substitute one or more attorneys under my said attorney, and the same again at pleasure to revoke. And generally to say, do, act, transact, determine, accomplish and finish all matters and things whatsoever, relating to the premises, as fuUyJ amply, and effectually, to all intents and purposes, as I the said constitutent if present, ought or might personally, although the matter should require more special authority than is herein comprised, I the said constituent ratifying, allowing and holding firm and valid, all and whatsoever my said attorney or his substitutes shall lawfully do, or cause to be done, in and about the premises, by virtue of these presents. In Witness, etc. (87.) Power of Attorney to Sell Lands. Know all Men by these Presents, That I, the undersigned (name of the selling party) of the town (or city) of , County of r and State of , have this day made, constituted, and appointed, and do by these presents make, constitute, and appoint (name of at- torney) of the town (or city) of ,.in the County of , and State of , my true and lawful attorney, for me and in my Bame to sell and dispose of, absolutely, in fee-simple, the following described lot, FOEMS or POWER OF ATTORNEY, ETC. 197 tract, or parcel of land, or any part thereof, situate, lying, and being in the County of and State aforesaid, to wit {here describe the land or premises granted) for such price or sum of money, and to such person or persons as he shall think fit and convenient; and also for me and in my name, and as my act and deed, to sign, seal, execute, acknowledge, and de- liver such deed or deeds, and conveyance or conveyances, for the absolute sale and disposal thereof, or of any part thereof, with such clause or clauses, -covenant or covenants, and agreement or agreements, to be therein con- tained, as my said attorney shall think fit and expedient; hereby ratifying and confirming all such deeds, conveyances, bargains, and sales which shall at any time hereafter be made by said attorney touching or concerning the premises. In Testimony Whereof, I have hereunto set my hand and seal, on this . day of , A. B. 1& — {Signatures.) {Seals.) (88.) Power of Attorney to Sell and Deliver Chattels. Enovr all Men by these Presents, That I, the undersigned, for value re- ceived, do hereby make, constitute, and appoint to be my true and lawful attorney, for me and in my name and behalf, to sell, transfer, and deliver unto or any other person or persons: {here describe the things to he sold) . And further, one or more persons under him to substitute with like power. In Witness, etc. (89.) Power of Attorney Given by Seller to Buyer. Enow all Men by these Presents, That I for value received, have bargained, sold, assigned, and transferred, and by these presents do bargain, sell, assign, and transfer, unto {name of the buyer) the following articles, namely, - {describe the articles) and I do hereby constitute and appoint the said {the buyer) my true and lawful attorney irrevocable, for me and in my name and stead, but to his use, to sell, assign, transfer, and set over all or any part of the said {the goods) and for that purpose to make and execute all necessary acts of assignment and transfer, and one or more persons to substitute with like full power, hereby ratifying and confirming all that my said attorney or his substitute or sub- stitutes shall lawfully do by virtue hereof. In Witness, fete. (90.) Power of Attorney to Sell Shares of Stock, with Appointment by Attorney of Substitute. Know all Men by these Presents, That, for value received, I {name of the principal) of do hereby make, constitute, and appoint irrevocably, ^ my true and lawful attorney (with power of substitution), for and X98 AGENCY. in my name and on my behalf, to sell, assign, and transfer unto {name of buyer) shares now standing in my name in the capital {or joint) stock of the _, And my said attorney is hereby fully empowered to make and pass all necessary acts for the said assignment and transfer. In Witness, etc. For value received, I appoint, irrevocably, (name of the substitute) as my substitute, with all the powers above given to me. In Witness, etc. (91.) Power of Attorney to Subscribe for Stock. Know all Ken by these Presents, That I, the undersigned, do hereby, irrevocably constitute and appoint to be iny true and lajyful at- torney, for me f.nd in my name and behalf to subscribe for shares in the capital stock of the And further, one or more persons under hiin to substitute with like power. In Witness, etc. (92.) Proxy, or Power of Attorney to Vote. Know all Men by these Presents, That I {name of the principal) of do hereby appoint to be my substitute and proxy for me, and in my name and behalf to vote at -any election of directors or other officers, and at any meeting of the stockholders of the , as fully as I might or could were I personally present. In Witness, etc. (03.) Proxy, Bevoking All Previous Proxies. Know all Men by these Presents, That I, the undersigned, stockholder in the {name of the company) do hereby appoint my true and lawful attorney, with power Of substitution, for me and in my name to vote at the meeting of the stockholders in said company, to be held at or at any adjournment thereof, with all the powers I should possess if personally present, hereby revoking all previous proxies. 19 Witness, {Signatwe.) (94.) Proxy, with Affidavit of Ownership, in "Use in New York. Know all Men by these Presents, That I, do hereby constitute and appoint my attorney and agent for me and in my name, place, and stead, to vote as my proxy at any election of directors of the according to the number of votes I should be entitled to vote if then per- sonally present. In Witness, etc. PAETNEKSHIP. 199 I do swear (or affirm) that the shares on wuich my attorney and agent in the above proxy is authorized to vote, do not belong, and are not hypothe- cated to the said company, and that they are not hypothecated or pledged to any other corporation or person whatever; that such shares have not been transferred to me £or the purpose of enabling me to vote thereon at the ensuing election, and that I have not contracted to sell or transfer them upon any condition, agreement, or understanding, in relation to my manner of voting at the said election. Sworn to this day of 19 , before me, ■ ) (95.) Power to Aeceive Dividend. Enow all Ken by these Presents, That I, of , do author- ize, constitute, and appoint to receive from tne {name of the company) the dividend now due to me on all stock standing to my name on the books of the said company, and receipt for the same; hereby ratify- ing and confirming all that may lawfully be done in the premises by virtue hereof. In Witness, etc. CHAPTER XVII. FAKTNEBSHIF. Section I. WHAT A PAETNEESHIP IS. When two or more persons combine their property, labor, or skill, for the transaction of business for their common profit, they enter into partnership. Sometimes the word "firm" is used as synonymous with partnership; sometimes, however, it means only the copartnership name. A single joint transaction, out of which, considered by itself, neither profit nor loss arises, will not create a partnership. If a joint purchase be made, and each party then takes his distinct and several share of the goods, this is no partnership. Any persons competent to transact business on their own ac- count may enter into partnership for that purpose, and no others. 200 PAETNEESHIP. Section II. HOW A PARTNERSHIP MAT BE FORMED. No especial form or manner is necessary. It may be by oral agreement, or by a written agreement, which may have a seal or not. But the liability and authority of the partners begin with the actual formation of the partnership, and do not wait for the execution of any articles. In general, if there be an agreement to enter into business, or into some particular transaction, together, and share the profits and losses, this constitutes a partnership, which is just as extensive as the business proposed to be done, and not more so. The parties may agree, to share the profits in what proportion they choose; but in the absence of any agree- ment, the law presumes equal shares. They may agree as to any way of dividing the losses, or even that one or more partners alone shall sustain them all, without loss to the rest. And this agreement is valid as between them- selves ; but it will not protect those partners who were to sus- tain no loss from responsibility to third parties, unless the third parties knew of this agreement between the partners, and gave credit accordingly. If A, B, & C, being partners, agree that A should not lose anything by their business, and a person knowing this bargain dealt with the firm on the credit of B & C, he could not call on A. But an agreement exempting partners from loss generally, or from loss beyond the amount invested, will only operate between the partners, unless it can be shown that the third party not only knew the agreement, but contracted with the firm on the basis of this agreement. And, generally, stipu- lations in articles of copartnership limiting the power of a part- ner are not binding on third parties who are ignorant of them. Each ;partner is absolutely responsible to every creditor of the copartnership for the whole amount of the debt ; and if thereby obliged to suffer loss, his only remedy is against the other part- ners. Although partners may agree and provide as they will in their articles, a long neglect of these provisions will be regarded as a mutual waiver of them. Persons may be liable as partners to third parties or strangers, who are not partners as between themselves. Whether they are partners as to each other would generally be determined by the HOW A PAETNEESHIP MAY BE POEMED. 201 intention of the parties, as drawn from their contract, — ^whether oral or written, — under the ordinary rules of evidence and con- struction. But whether one is liable as a partner to one who deals with the firm must depend in part upon his intention, but more upon his acts ; for if by them he justifies those who deal with the firm in thinking him a partner in that business, he must bear the responsibility; as if he declares that he has a joint interest in the property, or conducts the business of the firm as a partner, accepting bills, or suffets his name to be used upon cards, or in advertisements, or on signs, or in any similar manner. The declarations or acts of one person cannot, however, make another person liable as partner, without co-operation or consent, by word or act, on his part. The rule is this ; that one who thus holds himself out as a partner, when he really is not one, is responsible to a creditor who on these grounds believed him to be a partner ; but not to one who knew nothing oi the facts, or who, knowing them, knew also that this person was not a partner. A secret partner is one who is ac'tually a partner by partici- pation of profit, but is not avowed or known to be such; and a dormant partner is one who takes no share in the conduct or con- trol of the business of the firm. Both of these are liable to cred- itors (even if the creditors did not know them to be members of the firm), on the ground of their interest and participation in the profits, which constitute, with the property of the firm, the funds to which creditors may look for payment. A nominal partner is one who holds himself out to the world as such, but is not so in fact. He is liable to creditors of the firm, on the ground that he justifies them in trusting the firm on his credit, and, in- deed, invites them to do so by declaring himself to be a partner. The principal test of membership in, a mercantile firm is said to be the participation in the profits. Thus, if one lend money to be used in a business, for which he is to receive a share in the -profits, this would make him a partner; and if he is to receive lawful interest, and, in < addition thereto, a share of the profits, this would generally make him liable as a partner to a creditor of the firm. Sometimes a clerk or salesman, or a person otherwise employed for the firm, receives a share of the profits, instead of wages. Formerly it was held, that if such person received any certain share, say "one-tenth part of the net annual profits," this made 202 PABTNEK8HIP. him liable as a partner; but if he received "a salary equal in amount to one-tenth of the net profits," this did not make him a partner. Now, the courts would look more at the actual inten- tion of the parties, and their actual ownership of an interest in the funds of the partnership, and not be governed by the mere phraseology used. If in fact he works for wages, although these wages are measured by the profits, he is no partner, and therefore not liable for the debts, as every partner is. Hence, factors and brokers for a commission on the profits, masters of vessels who engage for a share of the profits, or sea- men employed in whale-ships, are none of them partners. A partnership usually has but one business name ; but there does not seem to be any legal objection to the use of two names, especially for distinct business transactions; as A B & Co. for general business, and the name of A C & Co. for. the purpose of making or indorsing negotiable paper. Section III, HOW A PARTNERSHIP MAY BE DISSOLVED. If the articles between the partners do not contain any agree- ment that the partnership shall continue for a specified time, it may be dissolved at the pleasure of either partner. But no part- ner can exercise this power wantonly and injuriously to the other partners, without making himself responsible for the dam- age he thus causes. If there be a provision that the partnership shall continue a certain time, this is binding. If either partner were to undertake to assign his interest, for the purpose of withdrawing from the firm, against the will of the partners, without gopd reason, and in fraud of his express agree- ment, a court of equity would interfere and prevent him. For the assignment of a partner's interest, or of his share of the profits, operates at once a dissolution of the partnership. Such assignment may transfer to the assignee the whole inter- est of the assignor, but cannot give him a right to become a mem- ber of the firm. There seems to be an exception to this rule where the partnership is very numerous, and the manner of holding shares, by scrip or otherwise, indicates the original intention of making the shares transferable. Such a partnership is in effect HOW A PAETNEESHIP MAY BE DISSOLVED. 203 a joint-stock company; which form of association is not usual here, because incorporation is better, and is easily obtained. Death of a general or even of a special partner operates a dis- solution ; and the personal representatives of the decea,sed do not take his place, unless there be in the articles an express provision that they shall. And such provisions are construed as giving the heirs or personal representatives the right of electing whether to become partners or not. If either party is unable to do his duty to the partnership, as by reason of insanity or a long im- prisonment, or if he be guilty of material wrong-doing to the firm, a court of equity will decree a dissolution. And if the original agreement were tainted with fraud, the court will de- clare it void, from its beginning. Whenever a court of equity decrees a dissolution of the part- nership, it will also decree that an account be taken between the partners, if requested by either partner. And if necessary to do justice, it will decree a sale of the effects and a distribution of the proceeds, after a consideration of all the facts of the case and the whole condition of the firm. Such a decree will be made if a partner die or become bankrupt. If the whole interest of a copartner is levied upon and sold on execution, this makes a dissolution, and the purchaser becomes, — like every other assignee of a partner, — not a partner, but only a tenant in common (that is, a joint owner) with the other part- ners ; but if thp levy and sale are only of a part, which may be severed from the rest, this may not operate a dissolution except as to that part. If one partner retires, this operates in law a dissolution, and the remaining partners constitute in law a new firm, although in fact the old firm frequently continues and goes on with its busi- ness, with or without new members, as if it were the same firm. The partner retiring should withdraw his name from the firm, and give notice, by the usual public advertisement, of his retire- ment, and also, by personal notice, by letter or otherwise, to all who usually do business with the firm ; and after such notice he is not responsible, even if his name be retained in the firm by the other partners, if this is done without his consent. Nor is he responsible to any one who has in any way actual knowledge of his retirement. 204 PAETNEESHIP. A dormant or secret partner is not liable for a debt contracted after his retirement, although he give no notice, because his lia- bility does not rest upon his giving his credit to the firm, but upon his being actually a partner. Section IV. THE PROPERTY OF THE PARTNERSHIP. A PARTNERSHIP may hold real estate as well as personal estate, and a partnership may be formed to trade in land, or to cultivate land. But the rules of law in respect to real estate, as in relation to title, conveyance-, dower, inheritance, and the like, make some difference. As far, however, as is compatible with these rules, it seems to be agreed that the real estate of the partnership is treated as if it were personal property, if it have been purchased with the partnership funds and for partnership purposes. There is some difficulty in explaining this matter to those who are not acquainted with the peculiar law of real estate. Thus, no sale of land is valid except by deed, recorded; and only one who. is thus a grantee under seal by record has a legai title. But a court of equity acknowledges and protects an equitable title in those who really possess all the interest in the land, as partners do who have paid for it, though it stands in the name of one part- ner only. But courts of equity cannot disregard the laws of con- veyance and record, and therefore they say that this partner is the only legal owner, but that he owns the land as trustee for the firm. And then they compel him to sell it, or otherwise dispose of it, as the interests of the firm or of their creditors require. So land thus purchased does not go to the heirs of the partner or partners in whose name it may stand, but is first subjeiet to the debts of the firm, and then to the balance which may be due to either partner on winding up their affairs. But when these debts and claims are adjusted, any surplus of the real estate will then descend as real estate, and not as personal estate. Improvements made with partnership funds on the real estate of a partner will be regarded as partnership property. The widow has her dower only after the above-mentioned debts and claims are adjusted. And while the legal title is protected, as it must be for the purpose of conveyance and other similar AUTHORITY OF EACH PARTNER, ETC. 205 purposes, the person holding this legal title will be held as a trustee for the partnership if the partnership be entitled to the beneficiary interest. But a purchaser of partnership real property, without notice or knowledge, from a partner holding the same by legal title, is protected against the other partners. If, however, the purchaser has such knowledge, the conveyance may be avoided as fraudu- lent, or he may be held as trustee, the land being in his hands chargeable with the debts and claims of the partnership. Section V. THE AUTHORITY OF EACH PARTNER, AND THE JOINT LIABILITY OF THE PARTNERSHIF. This authority is very great, because the law-merchant makes each partner an agent of the whole partnership, with full power to bind all its members and all its property, in transactions which fall within the usual business of the firm ; as loans, borrow- ing,- sales — even of the whole stock, pledges, mortgages, or assign- ments ; and this last extends even to an honest and prudent as- signment of the whole stock and personal property to trustees to pay partnership debts. It extends to the making or indorsing negotiable paper, and to transactions out of the usual business of the firm, if they arose from and were fairly connected with that business. Nor is any party dealing with a partner affected by his want of good faith towards the partnership, unless he colluded with the partner, and participated in his want of good faith, by fraud or gross negligence. But a holder of a note or bill signed or in- dorsed by a partner without authority, has no claim against the partnership, if he knew or should have known the want of au- thority. A partner cannot, in general, bind the firm by a guaranty, a letter of credit, or a submission to arbitration, without author- ity, because these things do not belong generally and properly to commercial business. But anything so done by a partner may be adopted and ratified by the partnership, and then it has the same force as if originally authorized. And this ratification may be formal and express, or consist only, of acts which distinctly 206 PARTNERSHIP. imply it; such as assenting to and acting with reference to it; and especially receiving and holding the beneficial results of it; as, for example, taking and holding money paid for it. By the earlier and more stringent rules of law, a partner could not bind his copartners by an instrument under seal unless he was himself authorized under seal ; and their subsequent acknowl- edgment of his authority did not cure the defect. Now, however, it is generally held that a partner may bind his firm by an instru- ment under seal, if it be in the name and for the use of the firm, and in the transaction of their usual business, provided the other copartners consent thereto before execution, or adopt and ratify the same afterwards : and they may assent or ratify by word as well as by seal ; or provided he could have made the same con- > veyance, or done the same act effectually without a deed. And a deed executed by one partner in the presence and with the assent of the other partners, will bind them. A sealed instrument executed in the name of the firm by one partner, and not binding on the firm, may in most of the States be enforqed against the partner who executed it. A partnership has no seal at law, and can have none ; only a person or a corporation can have a seal. Instruments are some- times executed "A. B. & Co.," and a seal is affixed to the name. This is, strictly speaking, no seal at all; and if the instrument needs a seal to make it valid," as if it were a deed of land, it would, at law, be wholly void. But the courts in some of our States are somewhat lax on this subject, and might construe it as the seal of each one of the partners to give the instrument validity. A majority of the members cannot conclusively bind the minor- ity, unless in reference to the internal concerns of the firm ; as, for example, the salary or appointment of a clerk, the hiring or fitting-up of a counting-room, the manner of keeping accoimts, and the like., But one member may, so far as he is concerned, arrest a negotiation which was only begun, and prevent a bargain which would be binding on him, by giving notice, to the third party of his dissent and refusal in season to enable him to de- cline the bargain without detriment. Partners must act as such, to bind each other. Thus, if a part- ner makes a note, and signs it with his own name and his part- ner's name, as a joint and several note, it does not bind his partner, for he had no authority to make such a note. AUTHORITY OF EACH PARTNEE, ETC. 207 If the name of one partner be also the name of the firm, — for John Smith and Henry Robinson may do business as partners under the name of ' ' John Smith, ' ' — this name is not necessarily the name of the firm when used in a note or contract ; and if the partner whose name is used carries on mercantile business for himself, it will not be supposed to be used as the name of the firm without sufficient proof. Persons may give a joint order for goods without becoming jointly liable, if it appear otherwise that credit was given to thein severally. Nor will one have either the authority or the obli- gation of a partner cast upon him by an agreement of the firn) to be governed by his advice. Nor will one be charged as partner with others unless he has incurred the liability by his own volun- tary act. The reception of a new member constitutes, in law, a new firm ; but the new firm may recognize the old debts, as by express agree- ment, or paying interest, or other evidence of adoption, and then the new firm is jointly liable for the old debt. But there must be some fact from which the assent of the new member to this adop- tion of the old debt may be inferred, for his liability is not to be presumed. A notice in legal proceedings, abandonment to insurers by one who was insured for himself and others, a notice to quit of one of joint lessors or lessees who are partners in trade, notice to one partner of the dishonor of a note or bill bearing the name of the firm, release to one partner, or by one partner, — ^will bind all the partners, and render them jointly liable. But a service of legal process should be made upon each partner personally. If money be lent to a partner for partnership purposes, it creates a partnership debt ; but not if lent expressly on the indi- vidual credit of the person borrowing ; and not if the borrowing partner receives it to enable him to pay his contribution to the capital of the firm. Though the money be not used for the firm, if it was borrowed by one partner on the credit -of the firm, in a manner and under circumstances justifying the lender in trust- ing to that credit, it creates a partnership debt. And if a partner uses funds in his hands as trustee, for partnership purposes, the firm are certainly jointly bound, if it was done with their knowl- edge. And if it was done without their knowledge, and the part- 208 PAETNEESHIP. ners are distinctly and directly benefited by the transaction, they will be deemed to have authorized it. If in any case a person, knowing the existence of the firm, gave credit to a single partner only, then he can look only to that partner, and not to the firm, although the money was applied to, and used for, partnership purposes. But if the partner held himself out as borrowing for the firm, and the lender without any want of due care gave credit to the firm, and the transaction was a fair business transaction on the part of the lender, the firm will be liable, although the money is fraudulently appropri- ated by the partner to his own use. In the absence of evidence showing to whom the credit was given, the fact that money lent to one partner was applied to the use of the firm will make the firm liable for the payment ; but not if the partner employed it as his contribution to increase the capital of the firm. If the purchaser of goods or the borrower of money have a dormant and secret partner, and the goods were bought or the money borrowed for partnership purposes, the seller or lender may look to both partners for payment, unless the seller or lender, knowing all the partners, gave credit tQ one only. The firm is liable only to one who deals With a partner in good faith. Thus, if one receives negotiable paper bearing the name of a firm, knowing that it is not in the business of the firm, and is given for no consideration, received by the firm, he cannot hold the firm. And if a creditor of one partner receive for his sepa- rate debt a partnership security, this would be a fraud, unless the partner had, or was supposed by the ci-editor to have, the au- thority of the rest. If he supposed the partner had this authority, he cannot hold the partnership if the partner had not the authority, imless the partnership had caused him to believe it. And if the partner- ship security be transferred for two considerations, one of which is private and fraudulent, and the other is joint and honest, the partnership is bound for so much of it as is not tainted with fraud, and only for that. The partnership may be liable for injury caused by the crim- inal or wrongful acts of a partner, if these were done in the trans- action of partnership business, and if it was the partnership which gave to the wrong-doer the means and opportunity of doing REMEDIES OF PAETNEES AGAINST EACH OTHER. 209 the wrong. But an illegal contract will not bind the copartners, for the parties entering into it must be presumed to know its illegality; and the law enforces no bargain that is contrary to law. The acknowledgment of one who had been a partner, after the dissolution of the .partnership, may take the debt out of the statute of limitations as to him, but not so as to restore the lia- bility of all the partners without their assent. Section VI. REMEDIES OF PARTNERS AGAINST EACH OTHER. It is seldom that a partner can have a claim against another partner, as such, which can be examined and adjusted without an investigation into the accounts of the partnership, and, per- haps, a settlement of them. Courts of law have ordinarily no adequate means of doing this ; and therefore it is generally true that no partner can sue a copartner at law for any claim growing out of a partnership transaction and involving partnership inter- ests. But the objection to a suit at law between partners goes no further than the reason of it; and, therefore, one may sue his copartner upon his agreement to do any act which is not so far a partnership matter as to involve the partnership accounts. If the accounts are finally adjusted, either partner may sue for a balance ; and so it would be if the accounts generally remained open, but a specific part of them were severed from the rest, and a balance found on that. The rule is generally laid down, that an action cannot be sustained by a partner against a partner for a balance, unless there is an express promise to pay it. But such promise would be inferred in all cases in which an account had been taken, and a balance admitted to be due. In general, an action of law between partners can be main- tained, only when a rendering of judgment in this action will completely terminate all partnership matters, so that no further cause of action can grow out of them. "What a court of law cannot do as to actions between partners, a court of equity -can ; and, generally, a court of equity has a full jurisdiction over all disputes and claims between partners, and 14 210 PAETNEESHIE. may do whatever is necessary to settle them in conformity with justice. A partner may sue his copartner for money advanced before the partnership was formed, although the loan was made to pro- mote the partnership. And for work done for the firm before he became a member of it, he may sue those who were members when he did the work. And he may sue a copartner on his note or bill, although the consideration was on partnership account; but, in general, no action at law can be maintained for work and labor performed, or money expended for the partnership. A partner who pays more than his proportion of a debt of the partnership cannot demand specific contribution from his co- partners, but must charge his payment to the firm. The reason is, that they may have claims against him on other accounts, and, they must be all settled together to strike the balance. If one of a firm be a member also of another firm, the one firm cannot sue the other ; for the same person cannot be plaintiff , and defendant of record. A cannot sue A ; and therefore A, B, & C cannot sue C, D, & B. In all these cases an adequate remedy may be found in a court of equity. If a firm have a negotiable note which it cannot sue, because one of its own firm is liable upon it and must be made defendant, it can indorse the note over, and the indorsee may sue it in his own name, as we have before stated. The partners are entitled to perfect good faith from each co- partner; and a court of equity will interfere to enforce this. No partner will be permitted to treat privately, and for his own benefit alone, for a renewal of a lease, or to transfer to himself any benefit of interest properly belonging to the firm. And so careful is a court of equity in this respect, that it will not permit a copartner by his private contract or arrangement, to subject himself to a bias or interest which might be injurious to the-firm, and conflict with his duty to them, but will declare void any con- tract of this kind. Section VII. EIGHTS OF THE FIRM AGAINST THIRD PARTIES. If a partner sells the goods of the firm in his own name, the firm may sue for the price. But the I'ights of one who deals in " EIGHTS OF CEEDITOES IN EESPECT TO FUNDS. 211 good faith with a copartner, as with him alone, are so far regarded, that he may set off any claim, or make use of any other defenses against the suit of the firm, which he could have made had the person with whom he dealt sued alone. Therefore, if A honestly bought goods of a firm from a partner whom he supposed to be sole owner of them, and paid him the price, the firm cannot recover this price from the buyer, although the seller sold the goods fraudulently, and cheated the firm out of the money, but must charge the price to the selling partner. A guaranty to a copartner, if for the use and benefit of the firm, gives to them a right of action. A new firm, created by some change in the membership of an old firm, is entitled to the benefit of a guaranty given to the old firm, even if sealed, provided it shall distinctly appear that the instrument was intended to have that effect, and extend to the new firm. Section VIII. RIGHTS OF CREDITORS IN RESPECT TO FUNDS. The property of a partnership is bound to pay the partner- ship debts; and, therefore, a creditor of one copartner has no claim to the partnership funds until the partnership debts are paid. If there be then a surplus, he may have that copartner's interest therein, in payment of his private debt. If a private creditor attaches partnership property, or in any way seeks to appropriate it to his private debt, the partnership debts being unpaid, he cannot hold it, either at law or in equity. Such attachment or appropriation is wholly subject to the para- mount claims of the partnership creditors, and is wholly defeated by the insolvency of the partnership, although the partnership creditors have not brought any actions for their debts. Hence, if a creditor of A attaches his interest in the property of A, B & Co., and a creditor of A, B & Co., attaches the same property, the first attachment is postponed to the second ; that is, it has no effect until the debt of the second creditor is fully satisfied, and then it is good for the surplus of property. If, however, one partner is dormant and unknown, the creditor of the other attaching the stock is not postponed to the creditor 212 PAETNEESHIP. who discovers the dormant partner and sues him with the others, unless the first attaching creditor's claim has mo reference to the partnership business, and that of the second attaching creditor has such reference. In courts of equity the partnership creditors are restrained from appropriating the private property of the copartners until the claims of their private creditors are satisfied. And some recent adjudications indicate that the rule will become estab- lished at law. I think the law ought to be, and that it is now tending to become, this. A partnership is a kind of body by itself, some- what like a corporation. It has its own funds, and its own debts. The individual members may also have each his own funds and his own debts. The funds of the partnership should first be applied to the debts of the partnership; and, if there be any surplus, the members have it, and their creditors get it. So the private funds of each member should first be applied exclusively to the payment of that person 's private debts ; and, when they are wholly paid, the surplus should go to- the partnership credi- tors, because each partner is responsible for the partnership debts. This rule prevails on the continent of Europe very gen- erally. It is also embodied in the bankruptcy laws of the United States, and in the insolvency laws of most of the States. It is now quite certain that the levy of a private creditor of one copartner upon partnership property can give him only what that copartner has;- that is, not a separate personal possession of any part or share of the stock or property, but an undivided right or interest in the whole, subject to the payment of debts and the settlement of accounts; including also the right to demand an account. As to how such levy and sale of the interest of one copartner shall be made by the sheriff, there is much diversity both of practice and authority. Upon principle, we think the sheriff can neither seize, nor transfer, by sale, either the whole stock or any specific portion of it. He should, we think, without any actual seizure, sell all the interest of the defendant partner in the stock and property of the partnership; much in the same way in which he would sell his right to redeem a mortgage, or any other incorporeal right, subject to attachment. The pur- chaser would then have a right to demand an account and THE EFFECTS OF DISSOLUTION. 213 settlement, and a transfer to himself of any balance or prop- erty to which the copartner whom he sued would have been entitled. Where the trustee process, or process of foreign attachment, is in use, the better way would be for the sheriff to return a general attachment of all the interest of the debtor in the part- nership property, and summon the other partners as the trustees of the debtor. It must be stated, however, that the rules of law in regard to the liability of partnership property for the private debts of partners, and as to how any such liability may be enforced, are, at present, somewhat obscure and uncertain. Section IX. THE EFFECTS OF DISSOLUTION. If the dissolution is caused by the death of any partner, the whole property goes to the surviving partners. They hold it, however, not as their own, but only for the purpose of settle- ment ; and therefore they have, in relation to it, all the power which is necessary for that purpose, and no more. If they carry on the business with the partnership funds, they do so at their own risk; and the representatives of the deceased may require their share of the capital, and choose between calling on them, in addition, for interest, or for a share of the profits. The survivors are not partners, but tenants in common (joint owners) with the representatives of the deceased of the stock or property in possession ; and have all necessary rights to settle the affairs of the concern and pay its debts. After a dissolution, however caused, one who had been a partner has no authority to make new contracts in the name of the firm, as to make or indorse notes or bills with the name of the firm, even if he be expressly authorized to settle the affairs of the firm. There must be a distinct authority to sign for the others who were formerly partners. A parol authority will be sufficient, even if the gen- eral terms of the partnership had been reduced to writing. It is common, where a partnership is dissolved by mutual consent, to provide that some one of the partners shall settle up the affairs of the concern, collect and pay debts, and the like. 214 PAETNEKSHEP. But this will not prevent any person from paying to any partner a debt due to the firm; and, if such payment be made in good faith, the release or discharge of the partner is effectual. If all the debts were assigned and transferred to any person, as his property, any debtor who had notice of this would be bound to make payment to this person alone; and if he paid anybody else, he would be obliged to pay the money over again. It is frequently provided, that one partner shall take all the property and pay all the debts; but this agreement, though valid between the partners, has no effect upon the rights of third parties against the other partners ; for they have a valid claim, against all the partners, of which they cannot be divested without their consent. This consent of the creditor may be inferred, but not from slight evidence; thus, not' from receiving the single partner's note as a collateral security, nor from receiving interest from him on the joint debt, nor from a mere change in the head of the account, charging the single partner and not the firm. Still, as the creditor certainly can assent to this arrangement, and accept the indebtedness of one partner instead of that of the firm, so it must be equally clear that such assent and intention will bind him, if distinctly proved by circumstances. Section X. LIMITED PARTNERSHIPS. These have been introduced into some of our States, by statutes, which differ somewhat in their provisions. Generally, they require, first, one or more general partners, whose names shall be known; secondly, special partners, who do not appear as members, nor possess the powers or discharge the duties of actual partners ; thirdly, a sum to be contributed by the special partners which shall be actually paid in ; lastly, a statement of all these particulars, with such other information as may be needed for the security of the public, which must be verified under oath, signed by all the parties, acknowledged before a mag- istrate, and correctly published. When these and all other statutory requirements are complied with, the special partners may lose all they have put in, but cannot be held to any further ARTICLES or COPARTNEESHIP. 215 responsibility. But any neglect of them, or any material mis- take in regard to them, even on the part of the printer of the advertisement, wholly destroys their effect ; and then the special partner is liable for the whole debt, precisely like a general partner. In a New York case, the amount contributed by the special partner was, by mistake of the printer, stated at $5,000, instead of $2,000, and it was held that the associates were liable as gen- eral partners, although the plaintiff did not show that he was actually misled by the error. In another New York case, it was held that an assignment of the partnership property, providing for the payment of a debt due to the special partner, ratably with the other creditors of the firm, or before all the other cred- itors are satisfied in full for their debts, is void as against the creditors ; but it would be valid as against the assignor and those creditors who think proper to affirm it. (96.) Articles of Copartnership. Articles of Agreement, made the day of , ifl ■ , between {the names and residences of the two •parties) as follows : The said parties above named have agreed to become copartners in business, and by these presents do agree to be copartners together under the name or firm of in the business of and in the buying, selling, and vend- ing all sorts of goods, wares, and merchandise to the said business belong- ing, and to occupy the , their copartnership to commence on the day of , and to continue and to that end and purpose the said (here state the contributions of each of the parties) to be used and employed in common between them for the support and management of the said business, to their mutual benefit and advantage. And it is agreed by and between the, parties to these presents, that at all times during the continuance of their copartnership, they and each of them will give their attendance, and do their and each of their best endeavors, and to the utmost of their skill and power exert themselves for their joint interest, profit, benefit, and advantage, and truly employ, buy, sell, and merchandise with their joint stock, and the increase thereof, in the business aforesaid. And also that they shall and will at all times during the said copartnership bear, pay, and discharge equally between them, all rents and other expenses that may be required for the support and management of the said business; and that all gains, profit, and increase that shall come, grow, or arise from or by means. of their said business, shall be divided between them {state whether equally, or in what proportions) and all loss that 216 PARTNERSHIP. shall happen to their said joint business by ill commodities, bad debts, or otherwise, shall be borne and paid between them in the like proportion. • And it is agreed by and between the said parties, that there shall be had and kept at aU times during the continuance of their copartnership, perfect, ■ just, and true books of account, wherein, each of the said copartners shall enter and set down, as well all money by them or either of them received, paid, laid out, and expended in and about the said business, as also all goods, wares, commodities, and merchandise, by them or either of them, bought or sold by reason or on account of the said business, and all other matters and things whatsoever to the said business and the management thereof in any wise belonging; which said books shall be used in common between the said copartners, so that either of them may have access thereto, without any interruption or hindrance of the other. And also the said copartners, once in , or oftener if necessary, shall make, yield, and render, each to the other, a true, just, and perfect inventory and account of all profits and increase by them, or either of them, made, and of all losses by them, or either of them, sustained; and also all payments, receipts, disburse- ments, and all other things by them made, received, disbursed, acted, done, or suffered in his said copartnership and business, and the same account so made shall and will clear, adjust, pay, and deliver, each to the other, at the time, their just share of the profits so made as aforesaid. And the said parties hereby mutually covenant and agree to and with each other, that, during the continuance of the said copartnership, neither of them shall nor will indorse any note, or otherwise become surety for any person or persons whomsoever, without the consent of the other of the said copartners. -And at the end, or other sooner determination of their copart- nership) the said copartners, each to the other, shall and will make a true, just, and final account of all things relating to their said business, and in all things truly adjust the same; and all and every the stock and stocks, as well as the gains and increase thereof, which shall appear to be remaining, either in, money, goods, wares, fixtures, debts, or otherwise, shall be divided between them, in the proportions aforesaid. In Witness, etc. (Signatures.) Various Covenants and Clauses which mat be introduced in Articles OP Copartnership according to circumstances^ Not to trust any one whom the Copartner shall forbid. And that neither of the said parties shall sell or credit any goods or merchandise belonging to the said joint trade, to any person or persons, after notice in writing from the other of the said parties, that such person or persons are not to be credited or trusted. Not to release any Deht mthout Consent, Etc. And that neither of the said parties shall, without the consent of the other, release or compound any debt or demand, due or coming to them on account of their said copartnership, except for so much as shall actually be AETICLES OF COPAETNEESHIP. 217 received, and brought into the stock or cash account of the said partner- ship. Vot to he hound, or indorse Bills, Etc., for any one without Consent, Etc. And that neither of the said parties shall, during this copartnership, without the consent of the other, enter into any deed, covenant, bond or judgment, or become bound as bail or surety, or give any note, or accept or indorse any bill of exchange for himself and partner, without the consent of the other first had and obtained, with or for any person whatsoever. Neither Party to assign his Interest, Etc. And it is' agreed between the said parties, that neither of the said parties shall, without the consent of the other, obtained in writing, sell or assign his share or interest in the said joint trade, to any person or persons whatso- ever. Parties to draw Quarterly, Etc. That it shall be lawful for each of them to take out of the cash of the joint stock the sum of quarterly, to his own use, the same to be charged on account, and neither of them shall take any further sum for his own separate use, without the consent of the other in writing; and any such further sum, taken with such consent, shall draw interest after the rate of per cent., and shall be payable together with the interest due, within days after notice in writing given by the other of the said parties. (97.) Certificate of a limited Partnership with Acknowledgment, and Oath. This is to Certify, That the undersigned have, pursuant to the pro- visions of the statutes of the State of •. formed a limited partner- ship, under the- name or firm of that the general nature of the business to be transacted is {describe the business) and that and are the general partners and is the special partner and that the said {the special partner) hath contributed the sum of dollars, as capital towards the common stock, and that the said partnership is to commence on the day of and is to terminate on the day of 19 — . Dated this day of one thousand nine hundred and State of — County of {Signatures.) \ss. On the day of one thousand nine hundred and . before me came known to me to be the individuals described in, 2T8 CORPORATIONS. and who executed the above certifleate, and they severally acknowledged that they executed the same. State of 1 County of . ; j the general partners named in the above certificate, being duly sworn do depose and say, that the sum specified in the said certificate to have been contributed by the special partner to the common stock has been actually and in good faith paid in cash. Sworn this day of , 19 , before me, In some of the States, the oath should be made by the general partner; and it would always be safe for all the partners, general and special, to take the oath, and be included in the certificate. CHAPTER XVIII. COKPORATIONS. A CORPORATION, as the term is used in mercantile law, is an association of individuals united into one collective body, under a special name, and possessing certain immunities, privileges and capacities in its collective character which do not belong to the natural persons composing it. The most important of these are, the capacity of succession, by which it continues to exist without regard to changes in its membership, the right to hold and con- vey property, real and personal, to sue and be sued, to make contracts, and to do other acts like an individual. The courts frequently speak of it as an "artificial person." The fundamental distinction between a partnership and a corporation is that the former is merely an aggregation of indi- viduals, having no personality of its own, and which therefore cannot be considered apart from the members composing it; whereas a corporation is, in the eye of the law, an entity, an artificial .person, quite distinct from the individual stockholders. From this difference of constitution result important practical differences, some of the principal of which are as follows. In a partnership the death of one partner dissolves the firm; while the death of a stockholder has no effect upon the corporation. COEPORATiONS. 219 The interest of a partner cannot be transferred or assigned go as to make the assignee a member of the firm, without the express consent of the other partners; whereas by a transfer of the stock which represents the stockholder's interest in the corpo- ration, the assignee becomes at once a member of the corporation without regard to the consent of the other stockholders. In a partnership each partner is the agent of all the others, and may bind them by his acts within the scope of the partnership business; on the other hand an individual stockholder has no power to bind the corporation, which can act only through such agents as the stockholders in their corporate capacity may select. Lastly, each partner is liable individually for all the debts of the firm, whereas a stockholder in a corporation is subject only to a limited liability — ^usually only to the extent of the stock which he holds. Corporations are of many kinds, but we propose here to con- sider only those formed for the transaction of mercantile, manu- facturing and other similar kinds of business. The comparative ease with which such corporations are managed, and the limited 'liability of the stockholders, have commended them to business men, and the greater part of the business of the country is now carried on in that form. Formerly, corporations were usually created by special acts of the legislatures of the several States, but now, in every State there are general acts providing for the formation, regulation and management of corporations of different kinds, and in many of the States it is provided that no business corporation shall be formed by special act. These laws vary greatly in the differ- ent States. As to the formation of corporations under them, it would be impossible in a work of this kind to give even an ab- stract that would be of any practical value. We can only say that the business of organizing a corporation should always be entrusted to a competent lawyer, not only because it calls for accurate knowledge of the law and for legal skill and experience, but because failure to comply with all the requirements of the law may result in serious liabilities on the part of the stock- holders and officers. We shall confine ourselves to the statement of a few general principles relating to the management of corpo- rations, and add an abstract of the statutory liabilities of stock- holders and directors. 220 COEPOEATIONS. A corporation is a "person" in the eye of the law, and laws relating to persons are held to include corporations so far as - they are applicable. In this cotmtry a corporation is a citizen of the State that creates it, or under whose laws it is organized. As such it has a right to sue and be sued in the courts of the United States. But it has no status as a citizen in any other State. As to such State it is a foreign corporation. It may by comity transact business in another State, but if it goes there for that purpose the State into which it goes may prescribe the conditions under which it may do business there, and may discriminate between it and domestic corporations. It may even go so far as to compel it to cease .business in that State, as has been done in several instances in the case of foreign insurance companies. In several of the States foreign corporations are not permitted to own real estate. As a corporation is purely a creature of the law, it can exer- cise only such powers as are given to it in its charter or act of incorporation. If it attempts to exercise powers not specific- ally or impliedly granted its charter is liable to forfeiture by the ■ State, such acts being beyond its powers, or ultra vires, to use the legal phrase. Contracts ultra vires are not enforceable by the corporation, and the corporation itself may defend against them on the ground that they are beyond its poVrers. In this respect however charters are liberally construed, and are held to confer upon the corporation, not merely the powers specifically granted, but such other ancillary or incidental powers as are reasonably necessary to enable the corporation to carry on the business for which it was organized. And courts have frequently refused to sustain this defense where no statutory prohibition has been violated, and the contract in question was founded on a good consideration. Indeed, it has been held that the plea of ultra vires should not as a general rule prevail when it would not advance justice, but, on the contrary, would accomplish a legal wrong. As to the conditions under which a corporation may com- mence business, the law varies widely in the different States. In some, the stock subscribed for may be made payable in in- stalments, either at definite fixed dates or on calls made by the directors as the business of the corporation may require. In STOCKHOLDEES. 221 such eases, if the amount of any instalment is not paid when due, it is usually provided that the stock may be sold, and the proceeds, so far as necessary, applied to the payment of the instalment in arrear, the balance, if any, going to the stock- holder. In other States no corporation is allowed to do business until the whole capital stock has been paid in, either in cash or in property. And in still others, while the corporation may commence business before the whole capital stock has been paid in, or even subscribed for, it is provided that no stock shall be issued for less than its par value, either in cash, or ia property which in the judgment of the directors is of equivalent value. These laws are frequently evaded, usually by accepting in pay- ment for stock property at much more than its actual value. While every allowance is to be made for honest difference of judgment, still, whenever the over-valuation is a glaring one, and it is manifest that the directors have not, in fact, exercised their judgment in the valuation of the property, there is no doubt that they may be held personally responsible for the deficiency of capital thus occasioned. Usually the par value of shares of stock is fixed by the articles of incorporation or the by-laws. In New York^ Maine and Vir- ginia, however, under recent statutes, corporations may be formed in which the par value is not fixed, each share represent- ing, simply, a fractional interest in the assets and property of the corporation. STOCKHOLDERS. The general control of the affairs of the corporation is vested in the stockholders. But they can exercise this control only in their corporate capacity, by vote at meetings held in accord- ance with the by-lawsi Unless so authorized, no action of the stockholders is binding upon the corporation even if assented to by every stockholder. It is important to bear this in mind, as, not unfrequently, especially in small corporations, the stock- holders act as though they were partners, without going through the formality of holding corporation meetings. Stockholders' meetings can be held only in the State in which the corporation is organized, unless specially authorized by statute. In the following States they may be so held under certain conditions, viz. Alabama, Delaware, Michigan, Minne- 222 8T0CKH0LDEES. sota, Missouri, Montana, Nevada, Oklahoma, Pennsylvania, South Dakota and "West Virginia. Notice of such meeting must be given to each stockholder in the manner prescribed by the by- laws, and it is usually provided that the notice shall specify the matters to be acted upon at the meeting. Stockholders may attend and vote personally, or by proxy; in the latter case the authority must be in writing, and in some States, as in Massachusetts, it is valid only for a limited period after its date. A written proxy may be revoked at any time. Each stockholder is entitled to one vote for each share of stock held by him. The by-laws may provide that a certain number of stockholders shall constitute a quorum for the transaction of business; usually the holders of a majority of the shares of stock issued. When this is the ease no business can be transacted unless a quorum be present. In the absence of any provision to the contrary, those who attend a meeting of stockholders duly called and notified in accordance with the by-laws, represent the corpora- tion, and a majority of the votes cast at such a meeting is sufficient for corporate action. While the stockholders have the supreme control, the actual management of the business of a corporation is always in the hands of its officers and directors. Only certain general subjects relating to the organization and policy of the corporation are usually acted upon directly by the stockholders. They always choose the bqard of directors, and in some States, the treasurer, and the clerk or secretary. The right to remove directors or officers is also in their hands, although in many of the States the power to remove officers is given to the board of directors. Such matters also as the alteration or amendment of the charter and by-laws, the increase or reduction of capital stock or the sale of the corporate real estate, are usually decided by vote of the stockholders. In Illinois and New Jersey the adoption qf by- laws is in the hands of the directors. Individual stockholders have the right, at such reasonable times and in such reasonable manner as not to interfere with the business of the corporation, to examine its records, books and papers. This right, however, must be exercised in good faith and not adversely to the interests of the corporation. Accord- ingly, where a member of a rival company purchased a single share of stock and claimed the right as a stockholder to inspect C0EP0EATI0N8. 223 the books of the corporation, the court refused him permission to do so. In some States the right of stockholders to examine the books of the corporation is regulated by statute. Original subscribers to the stock of a corporation are entitled to the rights of stockholders even if they have not received cer- tificates. Purchasers from them, however, do not become mem- bers of the corporation until the rights of the former owner have been transferred to them in the manner required by the by-laws, and new certificates issued to them in their own names. Cer- tificates of stock are transferable by indorsement, but they usually provide that the stock which they represent is trans- ferable only on the books of the company by the stockholders, either in person or by attorney. Until this is done the trans- fer is not complete, and the purchaser will not be recognized by the corporation as a member, or entitled to dividends, or allowed to vote at meetings of stockholders. As between the parties, however, the indorsement and delivery of the certificate, with a power of attorney to transfer the stock on the books of the company, vests the title in the purchaser. In Massachusetts and some other States it is provided by statute that stock thus transferred, although standing on the books of the corporation in the name of the seller, is not subject to attachment by his creditors, thus giving to the assignment and delivery of the cer- tificate the full effect which has generally been given to it by business men. If the assignment is properly made, the corpo- ration cannot legally refuse to make the transfer in its books, or to issue a new certificate to the assignee, even though the latter is personally obnoxious to the officers of the company, or is hostile to its interests. So long as the business of the corporation is conducted within the limits prescribed by its charter or articles of incorporation, an individual stockholder has no right to interfere with its management or policy by legal proceedings or otherwise. His only remedy is to endeavor to effect a change of management by the election of new directors and officers. He cannot even compel the corporation to declare dividends ; but if a dividend is once declared he has a personal ri^ht of action for the amount pay- able to him. If the corporation is exceeding its legal powers, or if the di rectors or officers. are acting fraudulently or disregarding the 224 C0EP0EATI0N8. provisions of the charter and by-laws, or otherwise violating their duties as trustees for the stockholders, the stockholder must first endeavor to seek a remedy within the corporation itself, either by action at a corporation meeting, or by calling upon the di- rectors and officers to take appropriate action. Only after exhausting these remedies in vain may he bring suit in his own name and in those of the other stockholders; to protect their rights. Any relief which he may obtain in this way will enure to the benefit of the whole body of stockholders, even if they have not personally become parties to the litigation. DIRECTOES. The active management of every business corporation is in the hands of its board of directors, subject to such limitations as mqy be contained in its articles of incorporation and by-laws. It is usually provided that they shall be stockholders, and in some States, as in Missouri, one or more members of the board must be citizens and residents of the State in which the com- pany is incorporated. They elect the president of the corporation from among their own number, and in njany of the States they also elect the treasurer, the clerk or secretary and other officers and agents, and fix the amount of their compensation. When they have the right of election they also have that of removal, and they have the power of filling vacancies in their own number. Unless forbidden by the articles of incorporation or the by- laws, they may hold their meetings out of the State. Records of their votes and transactions should be kept, either by a secre- tary chosen by them, or as is often provided, by the clerk or secretary of the corporation. It is held, however, that such records, while extremely important as matters of evidence, are not essential to the validity of the votes and acts of the directors. Unless authorized by vote of the board itself, they cannot act singly, but only as a board at meetings called and held in the manner prescribed by the by-laws. A quorum must be present, consisting, unless the by-ldws otherwise provide, of a majority of the board, and the vote of a majority of those present will then be binding upon the corporation. DIBECT0K8. 225 Officers and directors of a corporation are trustees for the stockholders, and cannot without being guilty of fraud secure to themselves advantages not common to the whole body of stock- holders. But a director may make a contract with the corpo- ration, and as to such contract he stands on the same footing as a stranger. In all such cases, however, he is held to the utmost good faith, and the courts are prompt to relieve against any attempt of a director to take any unfair advantage of his official position in his dealings with the corporation. Ac- cordingly, when directors have sold property to a corpo- ration for an excessive price, or when they have bought properly at a low price and have sold it to the corporation for a much higher price, they have been compelled to refund the profits thus made. And a contract between a corporation and one of its directors made by vote of a bare majority of the board of directors, of which majority he was one, was set aside by the court. As a general rule directors, as such, are not entitled to com- pensation for their services. If, however, a director is employed to perform special services outside of his duties as a director, he is entitled to reasonable compensation for services so rendered. Corporations are not bound by contracts entered into by their officers or directors beyond the scope of the business for which they are incorporated, or contrary to the provisions of their charter or by-laws; but they are liable for all contracts made by their authorized agents within the scope of their authority. Like individuals they are also responsible for the torts of their agents committed while in the performance of their authorized duties, as well as for their negligence. It has often been said that a corporation cannot commit a crime ; but this is true only in a limited sense. As the Supreme Judicial Court of Massachusetts say: "Corporations cannot be indicted for offenses that derive their criminality from evil in- tention, or which consist in a violation of those social duties which appertain to men and subjects. They cannot be guilty of treason or f elohy ; of perjury or offenses against the person. But beyond this, there is no good reason for their exemption from the consequences of unlawful and wrongful acts committed by their agents in pursuance of authority derived from them There is no principle of law which would thus furnish immimity 15 226 COBPOEATIONS. to a, corporation." This is undoubtedly the law at the present time. It is a matter of every-day occurrence for corporations to be indicted for violation of statutes, such as the Interstate Com- merce laws, the laws relating to trusts and to the employment of women and children. LIABILITIES OF. STOCKHOLDERS, AND OF OFFICEKS AND DIRECTORS. Stockholders in national banks are liable for the debts of the bank to an amount equal to the par value of their stock. As a general rule, the liability of stockholders in State banks and banking companies, and in trust, guaranty and insurance com- panies, is the same. In other business corporations, except in a very few States, their liability is limited to the amount, if any, remaining unpaid on their stock. In some States, also, stock- holders are liable for debts due to workmen, operatives and other employees for services rendered to the corporation. OfScers and directors are agents of the corporation, and as such, as responsible to the, corporation under the general law of agency, in the same manner and to the same extent as the agents of a private individual. Thus, even without any statutory provision, they are liable to the corporation for loss or damages occasioned by their iraud, negligence or wilful violation of the charter or by-laws. Besides this general liability, however, the laws of every State have imposed upon them special liabilities and penalties for violations of duty, and in many cases have made them responsible to creditors for debts incurred through their misconduct. At the present day a business man is frequently interested in corporations in different parts of the country; . and it is im- portant for him to know what liabilities he is incurring by owning stock, or becoming an officer or director in a corporation organized in any particular State. And it is important to re- member, in this connection, that these liabilities depend upon the laws of the State where the corporation is organized, and not of that where it may be carrying on business. We there- fore append to this chapter a brief abstract of the laws of the several States with reference to the statutory liability of stock- holders, officers and directors of general business corporations — ^not including, however, banks and the other financial insti- ABSTRACT OP LAWS, STOCKHOLDEES AND DIEECT0E8. 227 tutions above mentioned, or railroad, telegraph, telephone and insurance companies, which are usually incorporated under special statutes of their own. ABSTRACT OP LAWS RELATING TO LIABILITIES OF STOCKHOLDERS AND DIRECTORS. ALABAMA. Stockliolders in business corporations are liable for debts of the corpora- tion only to the extent of unpaid stock. Officers and directors depreciating stock or bonds with intent to purchase same at less than real value are liable to fine and imprisonment. ALASKA. In business corporations stockholder is liable to creditors for amount un- paid on his stock, but, except in insolvency or bankruptcy, only after judg- ment against the corporation. If bonded indebtedness exceeds amount of paid-in stock, or if stock or bonds be issued for more than cash value of property in reasonable judgment of directors, or if dividends be paid in excess of net profits, or if capital be reduced by loans to stockholders, or if reports or statements are not made as required by law or are materially false, directors assenting are jointly and severally liable to creditors for damages resulting therefrom. Officers also liable for failure to make reports, etc., required by law. ARIZONA. Stockholders in general business corporations are liable only to extent of unpaid stock. Directors concurring in making dividends except from surplus profits, or dividing any part of capital among stockholders, or receiving notes in payment of instalments on stock, or to enable a stock- holder to withdraw money paid by him, or exchange stock for stock in another corporation, or making false statements in writing as to condition or affairs of corporation, are criminally liable. Every director present deemed to concur unless he causes dissent to be ente'red on minutes of meeting; and also if absent, and facts appear on minutes, and he remains a director for six months, and does not record dissent. ARKANSAS. Stockholders are liable only to extent of unpaid stock subscribed by each. Directors declaring dividends when corporation is insolvent, or violating provisions of corporation act thereby causing insolvency, are liable for corporation debts. President and secretary also liable in case of failure to file annual statement of financial condition. 228 ABSTRACT OF LAWS, STOCKHOLDEES Ami DIEECT0R8. CALIFORNIA. Each stockholder, except in "limited" corporations, is individually and personally liable for such proportion of all its debts and liabilities con- tracted or incurred during the time he was a stockholder, as the amount of stock owned by him bears to the whole stock subscribed, and for like pro- portion of each debt of the corporation, and is not released by transfer of ?tock. Liability of stockholders in foreign corporationsi doing business in the State the same. In corporations having "Limited" at end of corporate name, stockholders liable only to extent of unpaid balance on stock. Direc- tors jointly and severally liable for any money embezzled or appropriated by ofScers. Directors declaring dividends except from net profits, or creating debts beyond subscribed capital, or dividing or reducing capital stock except as authorized, jointly and severally liable for amount of such dividend, etc. Directors declaring dividends except from surplus profits, or pay- ing any part of capital to stockholders, or receiving note in payment of instalment on stock, or to enable a stockholder to withdraw money paid, or exchanging stock, bonds, etc., of corporation for stock, etc., of another corporation, or making false statement as to condition or affairs of corpora- tion, are also criminally liable. Every director present presumed to concur unless dissent is noted on minutes, or if absent and facts appear on minutes, if he remains a director for six months without causing dissent to be recorded. COLOEADO. Stockholders are liable for debts of corporation only to extent of unpaid stock. Officers, directors and stockholders jointly and severally liable while fees for increase of capital stock remain unpaid. Directors assenting to declaration of dividends when corporation is in- solvent, or which would render it insolvent, or would diminish capital stock are jointly and severally liable for all debts then existing, and for all thereafter contracted while capital remains so diminished. In case of failure to file annual report of condition, officers and directors jointly and severally liable for all debts of corporation contracted during preceding year until report be filed. CONNECTICUT. Stockholders are liable only to extent of unpaid- balance on stock held by them. Stockholders voting in favor of reduction of stock rendering corporation insolvent, jointly and severally liable to extent of such reduction for all debts then existing. Directors voting for dividend or distribution of assets except from net profits liable to fine. If such dividend or distri- bution renders corporation insolvent, they are also jointly and severally liable to amount of such payment for debts existing at time of vote. DELAWAEB. Stockholders are liable to assessment until stock is fuUy paid; there- after stock is non-assessable and not liable for debts of corporation. In case of reduction of stock, directors liable for debts contracted before ABSTRACT OF LAWS, STOCKHOLDERS AND DIRECTORS. 229 publication of certificate of reduction, and stockholders liable for amounts received through such reduction. If dividends be paid otherwise than from net profits, directors authorizing same are liable to extent of such dividend in case of insolvency or dissolution of corporation. Any director absent or dissenting may absolve himself by causing dissent to be entered on minutes of meeting, or by publication. Officers and directors liable for false state- ments of condition or of business of corporation, authorized by them. Articles of incorporation may state whether private property of stock- holders is liable, and to what extent. DISTRICT OF COLUMBIA. Stockholders are liable for debts to extent of unpaid balance on stock held by them. Trustees ("directors) declaring dividends which would render corporation insolvent, or diminish amount of capital stock, are liable for debts then existing and all thereafter contracted while they remain in oflSce. Directors objecting may exempt themselves by filing certificate of objection with secretary of corporation and Recorder of Deeds of District. Any officer knowingly signing false certificate or report liable jointly and severally for debts of company contracted while stockholder and officer. FLORIDA. Stockholders of company doing business before recording copy of charter and filing certificate of payment of ten per cent, of capital stock liable for debts as though copartners. After dissolution, stockholders liable for debts to extent of unpaid balance of stock. Directors declaring dividends when company is insolvent, or which would make it so, jointly and severally liable for debts to the extent of such dividend. Directors absent or objecting not liable. GEORGIA. Stockholders are liable for debts to extent of unpaid stock. Persons organizing company and transacting business in its name before minimum amount of stock is subscribed for, liable to creditors to make good such minimum stock with interest. Liability of stockholders continues for six months after transfer. HAWAII. Stockholders liable for debts only to extent of unpaid balance of stock. Directors making dividends except from profits, or dividing any part of capital stock among stockholders, or reducing capital stock without express authority, jointly and severally liable, in event of dissolution, to full amount so divided or reduced. IDAHO. Stockholders liable for debts contracted while stock is owned by them, to extent of unpaid balance on such stock. Directors authorizing dividends except from surplus profits; or withdrawing or paying to stockholders any part of capital stock; or discounting or receiving notes in payment of instalment, or to enable stockholder to witndraw money paid for stock; or receiving from other corporations shares of stock, notes, bonds, etc., of 230 AB8XEACT OF LAWS, STOCKHOLDERS AND DIKECTOES. such corporation in exchange for stock in their own corporation, are guilty of misdemeanor. Any director presumed to assent if present unless he causes dissent to be entered on minutes of meeting, or, if absent, unless he causes dissent to be entered within six months. Such directors also jointly and severally liable in event of dissolution for full amount of divi- dend or capital stock so paid or withdrawn. ILLINOIS. Stockholders are liable for debts to the extent of unpaid balance on stock owned by them. Directors and officers declaring and paying dividends when corporation is insolvent, or which would make it insolvent, or which would diminish the amount of capital stock, jointly and severally liable for all debts then existing, or thereafter contracted while they remain in office. Directors and officers assenting to incurring indebtedness in excess of amount of capital stock, liable to creditors for such excess. Officers signing report, etc., containing statement known by them to be false, jointly and severally liable for all damages suffered. INDIANA. Stockholders in corporations organized prior to 1851 are liable to amount equal to that of stock held when debts were contracted. Stockholders in' manufacturing and mining companies liable only for amount of stock sub- scribed for, but are also individually liable for debts due laborers, servants, apprentices and employees. Stockholders in railroads individually liable for labor in construction of road after assets of corporation are exhausted. If any part of stock be withdrawn and divided before payment of debts, stockholders jointly and severally liable for such debts. IOWA. Stockholders are liable to extent of unpaid instalments of stock. Failure to comply with legal requirements as to organization and publicity also renders individual property liable for debts. No other liability unless articles of incorporation otherwise provide. Intentional deception as to means and liabilities of corporation, diversion of funds of corporation to objects other than those mentioned in its articles, and payment of dividends leaving insufficient funds to meet liabilities, render officers and directors liable for damages, and such dividends in the hands of stockholders subject to claims of creditors. OfScers and directors are also subject to penalties for such violations of law. Declaring dividends when corporation is in- solvent, or which would make it insolvent, or diminish amount of capital, ' renders officers and directors consenting jointly and severally liable for debts then existing. If indebtedness exceeds amount permitted by law, officers and directors consenting liable to creditors for such excess. KANSAS. Stockholders are liable only for unpaid balasce of original subscription. Dividends only from net profits. Directors declaring dividends when cor- poration is insolvent, or which would render it insolvent, jointly and severally ABSTRACT OT LAWS, STOCKHOLDEES AND DIRECTORS. 231 liable foo- debts then existing, or those thereafter contracted while they are in office, to the extent of such dividend. Directors absent or not assent- ing exempted by filing objection with the secretary. KENTUCKY. Stockholders in banks, and in trust, guaranty, investment and insurance companies liable equally and ratably for all contracts and liabilities to extent of par value of stock in addition to such stock; in other 'corpora- tions only for unpaid part of stock subscribed for by them. Officers and directors publishing or assenting to any written report of condition or business of corporation false in any material respect, jointly and severally liable for any resulting loss or damage. LOUISIANA. Stockholders liable only for unpaid balance on shares subscribed for by them. Transferees not liable. There is no statutory liability of officers and directors. MAINE. Stockholders, except in banks and trust and banking companies, liable for debts only to extent of unpaid balance of stock subscribed for. Di- rectors voting for or aiding in making dividend resulting in Teduction of capital stock before all debts are paid, subject to penalty, and dividends so paid may be recovered. Directors in corporations whose stock has no fixed par value jointly and severally liable for debts incurred before authorized capital stock, or any increase thereof, is paid in full. Creditor must serve notice on director vpithin one year after debt incurred, and director paying subrogated to claim against corporation and entitled to contribution from co-directors. MARYLAND. Stockholders, except in banking, safe deposit, trust and loan companies, liable only to extent of unpaid subscription to stock. Directors declaring dividends when corporation is insolvent, or which would make it insolvent, or diminish amount of capital stock, jointly and severally liable to extent of dividends for all debts existing or thereafter declared while respectively in office. Directors objecting exempted by filing certificate of objection with clerk of court where certificate of incorporation is recorded. Directors also responsible for loans made to stockholders or directors. Officers or directors consenting to issue of stock otherwise than provided in Act, or wilfully assenting to false statements as to affairs of corporation liable, to penalty. MASSACHUSETTS. Stock can be issued only for full value received. Stockholders in corpora- tion which reduces its capital stock contrary to law liable for debts and contracts then existing, to extent of amount withdrawn and paid them re^ spectively. They are also liable for money due operatives for services ren- dered within six months before demand on corporation, but with right of 232 ABSTEACT OF LAWS, STOCKHOLDERS AND DIRECTORS. contribution from other stockholders. President, treasurer and directors jointly and severally liable for all debts and contracts made while they are officers if stock is issued in violation of law, or statement or (report required by law and signed by them is false in any material respect, and liable to any stockholder for damages caused by such issue. Directors jointly and severally liable for declaring dividends when corporation is insolvent, or which would make it so, to extent of such dividends, and for debts con- tracted between loan to stockholders or directors and its repayment, to ex- tent of loan. Directors voting against such dividends or loans not liable. MICHIGAN. Stockholders in all corporations individually liable for all labor performed for corporation while holding their stock; also for capital stock withdrawn and refunded to them before all debts are paid, to extent of amount received. Directors ordering or assenting to any violation of Corporation Act jointly and severally liable for all debts contracted after such violation to extent of -three times amount paid in on stock standing in their names. MINNESOTA. Every stockholder, except in mining, manufacturing or mechanical busi- ness, is liable to extent of amount of stock held by him. Stockholders in every corporation liable for corporate debts: 1. For all unpaid instalments on stock owned by them or transferred to defraud creditors; 2. For failure of corporation to comply with provision of law as to organization and publicity; 3. For personally violating any such provisions in transaction of business of corporation, as officer, director or member, or for fraudulent or dishonest conduct in discharge of any official duty. Officers and directors guilty of diversion of corporate property to objects other than those speci- fied in certificate of incorporation, when .injury to any individual results, or of declaring dividends when profits are insufficient, or remaining funds will not meet corporate liabilities, or of intentional deception as to means or liabilities of corporations, are liable criminally. MISSISSIPPI. Stockholders are liable for debts contracted during their ownership of stock to amount of unpaid balance of stock subscribed for, and liability continues for one year after sale or transfer of stock. Directors of trading corporation liable for excess of debts over amount of capital stock paid in. Directors assenting to withdrawal of stock or declaration of dividend, when corporation is insolvent or would thereby be (rendered insolvent, and stock- holders receiving it, jointly and severally liable for debts then existing, to extent of such withdrawal of dividend and interest. MISSOURL Stockholders are liable to extent of unpaid balance on tSeir stock. Original subscriber not held after transfer. Officers and directors know- ingly purchasing property for corporation for more than its actual value jointly and severally liable for debts to extent of such excess; but any ABSTEACT OF LAWS, STOCKHOLDERS AND DIBBCTOES. 233 one absent or objecting exempted by filing objection with the clerk. Di- rectors declaring dividend when corporation is insolvent, or which would make it so, or diminish amount of capital stock, jointly and severally liable for debts then existing, and for all thereafter created while they remain in ofBce to extent of such dividend, unless exempted as above. MONTANA. Stockholders are liable for debts only to extent of unpaid balance of stock. Directors jointly and severally liable for dividing or withdrawing any part of capital stock or creating debts in excess of subscribed capital stock, or declaring dividends except from surplus profits, to the extent of such vpithdrawal, excess, or dividend, and also subject to criminal prose- cution. Any director absent or objecting may be exempted by causing notice of objection to be entered on minutes of meeting. Unless annual report be filed when due, directors liable for debts incurred before filing. NEBEASKA. Stockholders are liable, after assets of corporation are exhausted, to extent of unpaid subscription to stock, and liability fallows stock trans- ferred. They are also jointly and severally liable, in case of failure of corporation to comply with provisions of statute as to notice and other requisites of organization, to extent of such unpaid subscription and amount of stock in addition; and to same extent, in case of failure to publish annual statement of liabilities, for all debts then existing or thereafter incurred until such publication is made. In case corporation is dissolved on account of misconduct of officers or directors, such officers or directors are liable to action by any one injured. In case of deception by eoirporation as to its means or liabilities, those responsible are subject to fine and to payment of double damages to persons injured. NEVADA. Stockholders are liable for debts only to extent of unpaid balance on stock, unless articles of incorporation provide for assessments. Directors declaring dividends except from net profits, or paying to stockholders any part of capital stock, or reducing, capital stock except as authorized by statute, jointly and severally liable to full amount divided or withdrawn. Director absent or dissenting exempted by causing notice of dissent to be entered on minutes of directors' meeting. Directors authorizing publi- cation of false statements as to condition or business of corporation jointly and severally liable for any loss or damage. NEW HAMPSHIEE. Every stockholder, except in banks and railroads, liable for all debts and contracts until whole amount of capital, or so much as corporation has voted to issue, has been paid in and certificate filed with clerk of city or tovro. Stockholders unlawfully "receiving loan from corporation, or sum withdrawn from capital stock, or unlawful dividends, liable for debts to amount so received until repaid. In case of failure to make annual return showing 234 AB8TEACT OF LAWS, STOCKHOLDERS AND DIRECTORS. assets and debts of corporation, treasurer and directors individually liable for debts and contracts then existing or thereafter contracted until return is made. NEW JERSEY. Stockholders are liable only to amount unpaid on stock held by them. In case of failure to publish certificate of any decrease of capital stock, di- rectors are jointly and severally liable for all debts contracted until the filing of certificate, and stockholders liable for sums received from such reduction. Directors making dividends except from surplus profits, or with- drawing or paying to stockholders any part of capital stock, or unlawfully reducing capital, jointly and severally liable to full amount of any loss thereby sustained by corporation. Directors present causing dissent to be entered on minutes at meeting, or, if absent, on learning of such action, exempt from liability. NEW MEXICO. Stockholders arp liable for sums necessary to complete the amount of each share held by them as fixed by charter. Corporation may, however, by filing and publishing special certificate, provide that there shall be no stockholders' liability on account of any stock issued. Such corporation must add to ■ its corporate name the words, ' ' No Stockholders ' Liability. ' ' In case of failure to publish certificate of decrease of capital stock, directors jointly and severally liable for all debts contracted before filing certificate. Directors making dividends except from net profits, or with- drawing or paying stockholders any part of capital stock, or unlaw- fully reducing capital' stock, jointly and severally liable in case of dis- solution or insolvency to full amount of such dividend, etc., and interest, and stockholders liable for amounts received. Director absent or dissenting may exempt himself by causing dissent to be entered on directors' minutes at the time, or forthwith on receiving notice, or by causing copy of dissent to be published within two weeks in newspaper in county of corporation's place of business. NEW YORK Stockholders aie liable to amount unpaid on stock for debts contracted while stock was held by them. Also jointly and severally liable for debts due to laborers, servants and employees other than contractors, for services. No action until judgment against corporation, and execution not satisfied. Not liable for debt not payable within two years from time when con- tracted, nor unless action is brought within two years after debt is due, nor after ceasing to be stockholders unless action is brought within two years thereafter. Directors declaring dividends except from surplus profits, or withdrawing or paying to stockholders any part of capital stock, or reducing capital stock without authority, jointly and severally liable for full amount of dividend or capital so withdTawn or reduced, and guilty of mis- demeanor. Directors absent, or noting dissent on minutes of directors at the time, exempt. Directors consenting to unsecured debt in excess of paid- ABSTRACT OF LAWS, STOCKHOLDERS AND DIRECTORS. 235 up capital, or over issue of secured bonds and obligations, liable for amount of such obligations, and for damages to holders. Officers and directors, except in moneyed corporations, loaning corporate funds to stockholders, liable to extent of loan and interest for debts contracted before repayment ; and officers and directors making any prohibited transfer of property, or signing any report, etc., containing materially false representations, liable for any loss thereby sustained. T NORTH CAROLINA. Stockholders are liable only to extent of unpaid balance on stock. In case of failure to publish certificate of decrease of capital, directors jointly and severally liable for all debts contracted before filing certificate, and stockholders liable for amount received. Directors declaring dividends except from surplus or net profits, or when debts of corporation exceed two-thirds of its assets, or withdrawing and paying to stockholders any part of capital stock except as authorized by law, jointly and severally liable in event of dissolution or insolvency for amount of such dividend or reduction. Director not present or dissenting may exonerate himself by causing dissent to be entered on the minutes at the time, or when he has notice. NORTH DAKOTA. Stockholders are generally liable only to extent of amount unpaid on stock held by them; but stockholders in mining, .\nanufacturing or in- dustrial corporations are jointly and severally liable for debts due to mechanics, workmen and laborers in action commenced within four months after execution against corporation returned unsatisfied. Directors con- senting to dividends except from surplus profits, or to division, withdrawal or reduction of capital stock, or creating debts beyond subscribed stock, excepting certain liabilities of insurance and loan and trust companies, jointly and severally liable, in event of dissolution or insolvency, to full amount of dividend, capital withdrawn, paid out or reduced, and for debts beyond subscribed capital. Every director, oflficer and stockholder having knowledge of issue of bonds by corporation contrary to provisions of statute, and not dissenting and causing dissent to be entered on records of corpo- Tation, jointly and severally liable for debt created by issue of such bonds. OHIO. Stockholders in. corporations created since Nov. 23, 1903, are liable only to extent of amount unpaid on their stock; prior to that dSte there was a liability to an amount equal to stock in addition to the stock. No liability of preferred stockholders until remedy against common stock- holders exhausted, and suit must be brought within eighteen months after liability is enforceable. Directors declaring dividends except from surplus profits, or advertising a larger amount of capital stock than has been sub- scribed and paid in, or a larger dividend than has been earned and paid, liable for any loss thereby sustained by creditors or stockholders. 236 ABSTEACT OF LAWS, STOCKHOLDBES AND DIEECTOES. OKLAHOMA. Stockholders generally liable only to extent of unpaid balance on stock; but in industrial corporations jointly and severally liable for debts due mechanics, workmen and laborers if action is brought within four months. Directors declaring dividends except from surplus proflts, or dividing or paying to stockholders any part of capital, or reducing capital except as provided by law, or creating debts beyond subscribed capital, jointly and severally liable in' event of dissolution to amount of such dividend, re- duction or debt. Absent directors and those causing dissent to be entered on directors' minutes not responsible. Officers and directors making false statements in any report, etc., in relation to corporation or its business joint- ly and severally liable for all damages. Directors of corporations violating any statute provisions and thereby rendering it insolvent jointly and sev- erally liable for all debts contracted after such violation. OBBGON. Stockholders, except in .banking corporations, liable only to extent of amount unpaid on their stock. Directors declaring dividends when corpo- ration is insolvent, or whicb render it insolvent, or diminish amount of capital, jointly and severally liable for debts then existing or inpurred while they remain in office. If by any official act or conduct they fraudulently induce any person to give credit to the corporation, they are liable for any loss sustained. Any director voting against such dividend, etc., or, if absent, filing objections as soon as it comes to his knowledge, is exempt. PENNSYLVANIA. Stockholders are liable for unpaid balance on stock; also to extent of their stock for amounts due laborers, clerks and operatives, for services rendered within six months before demand on corporation. Directors de- claring dividends when company is insolvent, or which would render it insolvent, jointly and severally liable to extent of such dividend for all debts then existing, or thereafter contracted while they continue in office. Di- rectors absent or objecting exempted by filing objections with clerk of company. Making false statements in writing as to business or affairs of corporation is a criminal offense. THE PHILIPPINES. There is no provision in the Corporation Law imposing any statutory liability either on stockholders or directors. ' POETO EICO. Stockholders liable only for unpaid balance on stock. Directors and officers signing false certificate or notice jointly and severally liable for debts contracted while directors or officers. Directors authorizing in- debtedness in excess of paid-up capital, or of value of property and assets, jointly and severally liable for such indebtedness. Directors declaring dividends except from surplus profits, or dividing or paying any of capital ABSTEACT OF LAWS, STOCKHOLDEES AND DIEECTOES. 237 to stockholders, or reducing capital except as authorized by law, jointly and severally liable, in event of dissolution or insolvency, for amount of such dividends, etc. Director not assenting may exonerate himself by causing dissent to be entered on directors' minutes at the time, or when, he learns of such act. EHODE ISLAND. Stockholders in manufacturing companies are jointly and severally liable for debts, but only to extent of their shares fully paid up, until whole capital is paid in and certificate recorded. Directors declaring dividend when corporation is insolvent, or which would render it insolvent, jointly and severally liable to extent of such dividend for debts then existing or thereafter contracted while they remain in office. Absent or dissenting directors filing objection with clerk of company, exempt. Directors au- thorizing debts in excess of capital paid in, liable to extent of such excess for debts then existing or thereafter contracted while they remain in office and until debt reduced to amount of capital stock. Absent or objecting director exempted by giving notice to stockholders at meeting which he may call. If any part of capital be withdrawn from payment of debts con- tracted before filing certificate of reduction of stock, directors jointly and severally liable for payment of such debts. SOUTH CAEOLINA. Stockholders in insolvent corporations, except banks and banking insti- tutions, liable only to amount remaining due to corporation on their stock. Directors are criminally liable for fraudulent misrepresentation in certificate as to increase or decrease of capital, or false statement as to condition of corporation, or for declaring dividends not actually earned. SOUTH DAKOTA. Stockholders, except in banks, liable only to extent of amount unpaid on stock. Directors jointly and severally liable for illegally reducing capital stock, for making dividends except from surplus profits, and for creating debts beyond subscribed capital stock, to amount so divided, withdrawn, paid out or reduced, or debt contracted. If by violation of statutes applying to business corporations they render it insolvent, they become liable for all debts contracted after such violation. They are liable also for damages occasioned by false representations as to corporation or its business. ' TENNESSEE. Stockholders are liable to extent of unpaid subscription, and transfer of stock does not relieve from liability; in mining, quarrying, manufactur- ing and certain other corporations, they aore liable also for debts due to laborers, servants and employees. Directors declaring dividends when company is insolvent, or which would diminish amount of capital stock, jointly and severally liable for amount of dividends. Director voting against dividend, or filing objections as soon as he learns of it, exempt. Diversion of funds of corporation to other objects than those mentioned in 238 ABSTEACT OF LAWS, STOCKHOLDERS AND DIRECTOES. act of incorpcTation, payment of dividends leaving funds insufficient to pay liabilities, keeping false books or making false reports, intentional fraud in not complying with articles of incorporation or in deceiving the public or individuals as to liabilities, renders all participating officers, stockholders or directors subject to penalties, and liable for damages to persons injured. TEXAS. Stockholders liable only to extent of amount unpaid on stock. Directors declaring dividend when company is insolvent, or which would make it in- solvent, jointly and severally liable to extent of such dividend for all debts then existing, ot thereafter contracted while they are in office. Di- rector absent or objecting may file objection with secretary and be exempt. UTAH. Unless act of incorporation otherwise provides, stockholders, except in banks, liable only to extent of balance unpaid on stock. Directors making dividends except from surplus profits, or withdrawing or dividing any part of capital stock except as provided by law, or receiving notes in payment of instalment on stock, or to enable stockholders to withdraw money paid, or receiving stock or bonds of other companies for those of their own, wr making false representation as to condition of corporation, guilty of mis- demeanor. Director dissenting and causing dissent to be entered on di- rectors' minutes, exempt. WASHINGTON. Stockholders aae liable only for amount unpaid on their subscription to capital stock. Directors declaring dividend except from net pi'ofits, or with- drawing and dividing among stockholders any part of capital, or reducing capital stock except as provided by law, jointly and severally liable, in case of dissolution, for amounts so paid or divided. Those not present, or causing dissent to be entered on minutes, not responsible. Directors au- thorizing false statements of condition or affairs of corporation liable to fine and imprisonment. WEST VIEGINIA. Stockholders, except in banks, liable only to amount of stock subscribed for and unpaid. Directors present at meeting of board where dividend is declared diminishing the capital, and not causing their dissent to be entered on record, jointly and severally liable for amount of such diminution, and ~ every stockholder liable for amount of capital so received by him. WISCONSIN. Stock can be issued only on payment of full value in money, labor or property, and stockholder liable only for unpaid subscription. Stockholder receiving dividends not declared from net profits, or impairing capital, liable for return of same, unless capital be made good. If capital be diminished by corporate vote, stockholder liable for all debts then unpaid to AEBITRATION. 239 extent of amount paid him, and stockholders voting for such diminution jointly and severally liable to creditors for whole amount of such diminu- tion, but with right of contribution from other stockholders. Stockholders, except in railroads, liable to amount equal to that of their stock for debts due to clerks, servants and laborers, for not exceeding six months' services. If stock not fully paid be tiansferred, corporation may agree to discharge holder and accept liability of new owner for amount unpaid, but original owner still liable to the then creditors, and those becoming such within six months. Directors declaring dividend before capital stock is all paid in, when corporation is insolvent, or in danger of insolvency, jointly and severally liable for debts then existing. Directors and oflficers making false statements in writing as to affairs of corporation with intent to deceive or defraud subject to penalty. WYOMING. Stockholders are liable only to extent of unpaid assessments on stock. Directors declaring dividends when corporation is insolvent, or which would render it insolvent, or diminish the amount of capital stock, jointly and severally liable for all debts then existing and all thereafter contracted while they remain in office; directors objecting, and before time for payment of dividend filing objection with clerk of corporation and register of deeds, exempt. Directors publishing false statements as to condition or affairs of corporation, subject to fine or imprisonment. CHAPTER XIX. ARBITKATION. Section I. OF THE SUBMISSION AND AWARD. The law favors arbitration in many respects as a peaceable and inexpensive mode of settling difficulties. Parties may agree to refer a question by an oral agreement, or by a written agree- ment. The form is not essential. But it is always best to reduce the agreement to writing, and to express it carefully. But parties may, in many of our States, go before a magistrate and agree to refer in the manner pointed out by the statute. In all of them a ease may be taken out of court and submitted to referees und^r an order of court. 240 AEBITEATION. The first essential of an award, without which it has no force whatever, is, that it be conformable to the terms of the sub- mission. The authority given to the arbitrators should not be exceeded; and the precise question submitted to them, and neither more nor less, should be answered. Neither can the award affect strangers (or those who are not parties to it) ; and, if one part of it is that a stranger shall do some act, it is not only of no force as to the stranger, but of no force as to the parties if this unauthorized part of the award cannot be taken away without affecting the rest of the award. Nor can it require that one of the parties should make a payment, or do any similar act, to a stranger. But if the stranger is mentioned in an award only as agent of one of the parties, which he actually is, or as trustee, or as in any way paying for, or receiving for, one of the parties, this does not invalidate the award. And in favor of awards, it has been said that this will be supposed, where, the contrary is not indicated. If the award embrace matters not included in the submission, it is fatal. If however, the portion of the award which exceeds the submission can be separated from the rest withoiit affect- ing the merits of the award, it may be rejected, and the rest will stand ; othewise the whole is void. If the submission specify the particulars to which it refers, or if, after general words, it make specific exceptions, its words must be strictly followed. If these words are very general, they will be construed liber- ally, but yet without extending them beyond their fair mean- ing. On the other hand, all questions submitted must be de- cided, unless the submission provides otherwise; and either party may object to an award, that it omits the decision of some question submitted; but the objection is invalid if it be shown that the party objecting himself withheld that question from the arbitrators. Nor is it necessary that the award embrace all the topics which might be considered within the terms of a general submission. It is enough if it pass upon those questions brought before the arbitrators, and they are so far distinct and independent that the omission of others leaves no uncertainty in the award. If the award does not embrace all of the matters within the submission which were brought to the notice of the arbitrators, it is altogether void. SUBMISSION AND AWARD. 241 I In the next place, an award must be certain; that is, it must be so expressed that no reasonable doubt can be entertained as to the meaning of the arbitrators, the effect of the award, or the rights and duties of the parties under it. For the very purpose of the submission, and the end for which the law favors arbitration, is the final settlement of all questions and disputes ; and this is inconsistent with uncertainty. In the next place, the award must be possible; . for an award requiring that to be done which cannot be done is senseless and useless. But the impossibility which vitiates an award is one which belongs to the nature of the thing, and not to the acci- dental disability of the party at the time. Thus, if he be ordered to pay money on a day that is past) this is void; so if he be required to give up a deed which he neither has nor may expect to have ; but if he be directed to pay money, the award is good, although he has no money, for it creates a valid debt against him. Nor can a party avoid an award on the ground of an im-- possibility created by himself, after the award, or indeed before- hand, if he created it for the purpose of evading an expected award. This impossibility may be actual, or it may be that created by law; for an award which requires that a party should do what the law forbids him to do is void, either in the whole, or else for so much as is thus agaiast the law, if that illegal part can be severed from the rest. An award must be reasonable: if it be of things in them- selves of no value or advantage to the parties, or out of all proportion to the justice and requirements of the case, or if it undertake to determine for the parties what they should deter- mine for themselves, as that the parties should intermarry, it is void. Lastly, the award must be finai and conclusi'Oe. This neces- sity springs also from the very purpose for which the law favors arbitration, namely, the settlement and closing of disputes. It is not a valid objection to an award, that it is upon a condition, if the condition be clear and certain, consistent with the rest of the award, in itself reasonable, and such that there could be no doubt whether it were performed or not, or what were the rights or obligations dependent upon it. 16 242 AEBITEATION. An award may be open to any or all of these objections in part, without being necessarily void in the whole. So much of it as is thus faulty is void; but if this can be sev^ted dis- tinctly from the residue, leaving a substantial, definite, and unobjectionable award behind, this may be done, and the award then will take effect. It is therefore void in the whole because bad in part, only where this part cannot be severed from the residue; or where, if it be severed and amended, leaving the residue in force, one of the parties will be held to an obligation imposed upon him, but deprived of the advantage or recompense which it was intended that he should have. Generally, in the construction of awards, they are favored and enforced, wherever this can properly be done. If the submission be in the most general terms, and the award equally so, covering "all demands and questions" between the parties, either party may still show that a particular demand either did not exist, or was not known to exist, when the sub- mission was entered into, or that it was not brought before the notice of the arbitrators, or considered by them ; and then the award will not be permitted to affect this demand. If, by an award, money is to be paid in satisfaction of a debt, this implies an award of a release on the other side, and makes this release a condition to the payment. There is no especial form of an award necessary in this coun- try. If the submission requires that it should be sealed, it must be «o. And if the submission was made under a statute, or under a rule of court, the requirements of the statute or the rule should be followed. But even here mere formal inaccuracies would seldom be permitted to vitiate the award. If the submission contains other directions or conditions, as that it should be delivered to the parties in writing, or to each of the parties, such directions must be substantially followed. Thus, in the latter case, it has been held that it is not enough that a copy be delivered to one of the parties on each, side, but each individual party must have one. It may happen, where an award is offered in defense, or as the ground of an action, that it is open to no objection whatever, for anything which it contains or which it omits; and yet it may be set aside for impropriety or irregularity in the conduct of the arbitrators, or in the proceedings before them. Awards, are thus REVOCATION OP SUBMISSION TO AEBITEATORS. 243 set aside if "procured by corruption or undue means." This rule rests indeed, on the common principle, that fraud vitiates and avoids every transaction. So, too, it may -well be set aside if it be apparent on its face that the arbitrator has made a material mistake of fact or of law. It must, however, be rather a strong case in which the court would receive evidence of a mere mistake, either in fact or in law, which did not appear in the award, and was not supposed to spring from or indicate corruption. Another instance of irregularity is the omission to examine witnesses ; or an examination of them when the parties were not present, and their absence was for good cause ; or a concealment • by either of the parties of material circumstances ; for this would be fraud. So if the arbitrators, in ease of disagreement, were authorized to choose an umpire, but drew lots which of theni should choose him. But it has been held enough that each arbitrator named an umpire, a^id lots were drawn to decide which of these two should be taken, because it might be con- sidered that both of these men were agreed upon. And if an umpire be appointed by lot, or otherwise irregularly, if the parties agree to the appointment, and confirm it expressly, or impliedly by attending before him, with a full knowledge of the manner of the appointment, this covers the irregularity. Section II. THE REVOCATION OF A SUBMISSION TO ARBITRATORS. It is an ancient and well-established rule, that either party may revoke his submission at any time before the award is made ; and by this revocation render the submission wholly ineffectual, and of course take from the arbitrators all power of making a binding award. And, generally, this power exists until the award is made. In this country, our courts have always excepted from 'this rule submission made by order or rule of court; for a kind of jurisdiction is held to attach to the arbitrators, and the submis- sion is quite irrevocable, except for such cases as make it nec- essarily inoperative. 244 ARBITRATION. There is a strong reason why a submission by order of court, or before a magistrate, should be, preferred where it can be had, fTom the fact above stated, that the law permits any party who finds an award is going against him to revoke his submission or reference when he will, before the award is made ; provided the award was only by agreement out of court, or not before a mag- istrate. In some of our States, the statutes authorizing and regulating arbitration provide for the revocation of the submis- sion. It should be stated, however, that, as an agreement to sub- mit is a valid contract, the promise of each party being the con- sideration for the promise of the other, a revocation of the agree- ment or of the submission is a breach of the contract, and the other party has his damages. And damages would generally include all the expenses the plaintiff has incurred about the sub- mission, and all that he has lost by the revocation, in any way. If either party exercise this power of r,evocation, he must give notice in some way, directly or indirectly, to the other party, and until such notice, the revocation is inoperative. Bankruptcy or insolvency of either or both parties does not necessarily operate as a revocation, unless the terms of the agree- ment to refer, or the provisions of the insolvent law, require it. But the assignees acquire whatever power of revocation the bank- rupt or insolvent possessed, and, generally at least, no further power. The death of either party before the award is made vacates the submission, if made out of court, unless that provides in terms for the continuance and procedure of the arbitration, if such an event occur. But a submission under a rule of court is not re- voked or annulled even by the death of a party. So the death or refusal or inability of an arbitrator to act would annul a sub- mission out of court, unless provided for in the agreement ; but not one under a rule of court, unless for especial reasons, satis- factory to the court, which would make an appointment of a substitute, if it saw fit to continue the reference. It may be well to add, that, after an award is fully made, neither of the parties without the consent of the other, nor either nor all of the arbitrators without the consent, of all the parties, have any further control over it. ABBITEATION FOEMS. 245 If the submission provides for any method of delivering the award, this should be followed. If not, it is common for the referees to deliver the award to the prevailing party or his attorney, on payment by him of the fees of arbitration. Then the prevailing party looks to the losing party, for the whole, or a part, or none of the costs, as the award may determine. The award should be sealed, and addressed to all the parties ; and it should not be opened except in presence of all the parties, or of their attorneys, or with the consent of those absent indorsed on the award. If the submission is under a rule of court, it should be returned to court by the arbitrators, or the counsel receiving it, sealed, and opened only in court, or before the clerk, or with the written consent of parties. The submission, or agreement to refer, may be made by exchange of Bonds, each party executing and delivering a Bond to the other party. This would be a formal proceeding. But, as has been already said, no especial form is necessary ; and often a very simple one, like that below, would suffice. (99.) Simple Agreement to Befer. Snow all Men, That we, of , and _: of _ do hereby promise and agree, to and with each other, to submit, and do hereby submit, all questions and claims between us {or any specific ques- tion or claim, describing it) to the arbitrament and determination of (here ■name the arbitrators) whose decision and award shall be final, binding, and conclusive on us; (add if there are more arbitrators than one, and it is intended that they may choose an umpire) and, in case of disagreement be- tween the said affbitrators, they may choose an umpire, whose award shall be final and conclusive ; (or add, if. there be more than two arbitrators) and, in case of disagreement, the decision and award of a majority of said arbitrators shall be final and conclusive. In Witness Whereof, etc. (Signatures.) (lOO.) Arbitration Bond. One or more Arbitrators. Know all Men by these Presents, That I, (one of the parties) am held and firmly bound unto , (the other party) in the sum of dolla knowledge of the limitation in the notice. But in a recent case in Massachusetts it was held, under a similar state of facts, that the passenger was bound to ascertain the meaning of the notice given him. Such knowledge may be brought home to him by indirect evidence; as by showing that it was stated on a receipt given to him, or on a ticket sold him, or in a newspaper which he read, or even that it was a matter of usage, and generally known. This question is one of fact, which the jury will determine upon all the evidence, under the direction of the court. And if the notice is ambiguous, they will be directed to give it the mean- ing which is against the carrier, because it was his business to make it plain and certain. The bills of lading and receipts given by most railroad and express companies declare on their face that they are given subject to the rules and conditions printed upon the back there- of. Such a paper given by the company and accepted by the shipper constitutes a contract between them. Any fraud towards the carrier, as a fraudulent disregard of a notice, or an effort to cast on him a responsibility he is not obliged to assume, or to make his liability seem to be greater than it really is, will extinguish the liability of the carrier so far as it is affected by such a fraud. If a carrier gives notice which he is authorized to give, the party receiving it is bound by it, and the carrier is under no obligation to make a special inquiry or investigation to see that the notice is complied with, but may assume that this is done. It should, however, be remarked that such notice affects the liability of the common carrier only so far as that liability is peculiar to him as such — ^that is, his liability for a loss which occurs without his agency or fault; for he is just as liable as he would be without any notice, for a loss or injury caused by his own negligence or default, or that of his servants. 264 THE CARRIAGE OF GOODS AND PASSENGERS. Perhaps a common carrier might make a valid bargain which would protect hjm against everything but his own wilful or fraudulent misconduct. But no bargain could be made to pro- tect him against this. In England common carriers are allowed to exempt them- selves from the consequences of the negligence or misconduct of their servants and agents, and such is also the law in New York. Elsewhere in this country notices claiming such exemption are universally held to be contrary to public policy and void. And the statutes of the United States relating to vessels ex- pressly prohibit the insertion in any bill of lading, of any clause relieving the vessel or owners from liaj)ility "for loss or, damage arising from negligence, fault, or failure in proper loading, stowage, custody, care or proper delivery of any and all lawful merchandise or property committed to its or their charge. ' ' Section VIII. ' THE CARKIBb's LIABILITY FOR GOODS CARRIED BY PASSENGERS. A CARRIER of goods knows what goods, or rather what parcels and packages, he receives and is responsible for. A carrier of passengers is responsible for the goods they carry with them as baggage; what that is, the carrier does not always know, and he is responsible only to the extent of what might be fairly and naturally carried as baggage. This must always be a ques- tion of fact, to be settled as such by the jury, upon all the evi- dence, and under the direction of the court. But there can be iio precise and definite standard. A traveler on a long journey needs more money and more baggage than on a short one ; one going to some places and for some purposes needs more than one going to other places or for other purposes. Thus in New York it was decided that baggage does not properly include money in a trunk, or any articles usually carried about the person. And in another New York case, it was held that, where the baggage of a passenger consists of an ordinary traveling trunk, in which there is a large sum of money, such money is not considered as included under the term baggage, so as to render the carrier responsible for it. But generally a passenger may carry as baggage, money, not CARRIEE'8 LIABILITY FOR GOODS OF PASSENGERS. 265 exceeding an amount ordinarily carried for traveling-expenses. So in Massachusetts it was held that common carriers are responsible for Inoney bona fide included in the baggage of a passenger, for traveling expenses and personal use, to an amount not exceeding what a prudent person would deem proper and necessary for the purpose. In Pennsylvania, carriers have been held responsible for ladies' trunks containing apparel and jewels. And in Illinois, a common carrier of passengers has been held liable for the loss of a pocket-pistol and a pair of dueling-pistols, contained in the carpet-bag of a passenger, which was stolen out of the possession of the carrier. But in Tennessee, it has been held that "a silver watch, worth about thirty-five dollars, also medi- cines, handcuffs, locks, &c., worth about twenty dollars," were not included in the term baggage, and that the carrier was not responsible for their loss. In Ohio, it has been held that a gold watch, of the value of ninety-five dollars, was a part of the traveler's baggage, and his trunk a proper place to carry it in. In another. New York case, it has been held that the owners of steamboats were liable as common carriers for the baggage of passengers; but, to subject them to damages for loss thereof, it must be strictly baggage; that is, such articles of necessity and personal convenience as are usually carried by travelers. And it was accordingly held, in that ease, that the carrier was not liable for the loss of a trunk containing valuable merchan- dise and nothing else, although it did not appear that the plain- tiff, had any other trunk with him. But in a case in Pennsylva^ nia, where the plaintiff was a carpenter moving to the State of Ohio, and his trunk contained carpenters' tools to the value of fifty-five dollars, which the jury found to be the reasonable tools of a carpenter, it was held that he was entitled to recover for them as baggage. There is some diversity, and perhaps some unsertainty, in the, application of the rule; but the rule itself is well settled, and a reasonable construction and application of it must always be made; and, for this purpose, the passenger himself, and all the circumstances of the case, must be considered. The purpose of the rule is to prevent the carrier from be- coming liable by the fraud of the passenger, or by conduct which would have the effect of fraud; for this would be the 266 THE CAEEIAGE OF GOODS AND PASSENGERS. case if a passenger should carry merchandise by way of baggage, and thus make the carrier of passengers a carrier of goods with- out knowing it and without being paid for it. Generally, a common carrier of passengers, by stage, packet, steamer, or cars, carries the moderate and reasonable baggage of a passenger, without being paid specifically for it. But the law considers a payment for this so far included in the payment of the fare, as to form a sufficient ground for the carrier's liability to the extent above stated. The carrier is only liable for the goods or baggage delivered to him and placed under his care. Hence, if a sender of goods send his own servant with them, and intrust them to him and not to the carrier, the carrier is not responsible. So, if a pas- senger keeps his baggage, or any part of it, on his person, or in his own hands, or within his own sight and immediate control, instead of delivering it to the carrier or his servants, the carrier is not liable, as carrier, for any loss or injury which may happen to it; that is, not without actual default in the matter. Thus, in an action brought in New York to charge a railroad company, as common carriers, for the loss of an overcoat belonging to a passenger, it appeared that the coat was not delivered to the defendants, but that the passenger having placed it on the seat of the car in which he sat, forgot to take it with him when he left, and it was afterwards stolen; and it was held that the defendants were not liable. But if the baggage of a passenger is delivered to a common carrier, or his servant, he is liable for it in the same way, and to the same extent, as he is for goods which he carries. In this country the rules of evidence permit the traveler to maintain his action against the carrier by proving, by his own testimony, the contents of a lost trunk or valise, and their value. And the testimony of the wife of the owner is similarly admissi- ble. But the carrier's liability is always limited to such things — in quantity, quality, kind, and value — as might reasonably be supposed to be carried in such a trunk or valise. The rule, with this limitation, ^eems reasonable and safe, and is quite generally adopted. In Massachusetts it was distinctly denied by the Su- preme Court, but was afterwards established by statute. A sleeping-car company is not liable as a common carrier, or as an inn-holder, but only for negligence. It is its duty to use CABBIEE'S LIABILITY TOR GOODS OF PASSBNGEES 267 reasonable care to guard the passengers from theft, and if through want of such care the personal effects of a .passenger, such as he might reasonably carry with him, are stolen, the company is liable. The common carrier of goods or of passengers is liable to third parties for any injury done to them by the negligence or default of the carrier, or of his servants. And it would seem that he is liable even for the wilful wrong-doing of his servants if it was committed while in his employ, and in the management of the conveyance under his control, although the wrong was done in direct opposition to his express commands. So he is for injury to property by the wayside, caused by his fault. But the negligence of the party suffering the injury, if it was mate- rial and contributed to the injury, is a good defense for the carrier unless malice on the carrier's part can be shown. Where the party injured is in fault, the common carrier has been held liable, if that fault was made possible and injurious through the fault of the carrier. If passengers are carried gratuitously — ^that is, without pay — ^the common carrier is still liable for injury caused by his negligence. The liability of railroads for injury or death of third persons as well as of passengers has been greatly modified by statute. In some States contributory negligence on the part of the person injured is no longer a valid defense. Whether a railroad company is responsible for fire set to buildings or property along the road, without negligence on its part, has been much considered in this country. In some of our States they are made so liable by statute provision. And this fact, together with the general principles of liability for injury done, would seem to lead to the conclusion that they are not liable, unless in fault, or unless made so by statute. 268 HOTEL KEEPEES, INNKEEPEES, ETC. CHAPTER XXII. HOTEL EEEPEBS, INNKEEPERS, AND BOARSING-HOUSE KEEPERS. HoTE!L KEEPERS and innkeepers are, in law, the same. An inn has been judicially defined as a house where the traveler is provided with everything which he has occasion for while on his way. There need not be a sign to make it an inn. A coffee- house or eating-room is not an inn, nor is a boarding-house. An innkeeper has a lien upon all the goods of a guest, for the price of his entertainment, or that of his servants and horses. This lien covers the goods brought to him by a guest, though they belong to another person. Thus he has a lien on a stolen horse which the thief brings to him. But he has no lien on the clothes or goods whicli a guest actually has upon his person. He must receive every guest who offers, unless his house is full, or there is good reason to believe that the guest will be disorderly. A guest has a right to reasonable accommodations, but not to choose his apartinent, or use it for other purposes than those for which it was designated. Public policy imposes upon an innkeeper a severe liability. In strict law, he is an insurer of the property committed to his care, against every- thing but the act of God, the public enemy, or the fraud or neglect of the guest. But there seems to be of late some dispo- sition in the courts to hold him thus liable only where there has been some kind or measure of negligence on his part. A boarder at a boarding-house cannot hold the keeper of the house to this liability, nor does the common law give the keeper a lien on the boarder's goods, but such a lien is given by statute in many of the States. It is sometimes difficult to say whether a person in the house is a guest at an inn, or a boarder. From all the cases we infer this distinction: A boarder is one who makes a bargain for a certain time. A guest comes and goes when he likes, paying only for what he receives. Though he stays a long time at an inn or hotel, without any bargain on time, he is still a guest ; holding the, keeper of the inn to his liability, and having his goods under a lien to the keeper. But if he makes a bargain on time, he becomes a boarder, and the liability and lien of the keeper cease. HOTEL KBEPEES, INNKBEPEES, ETC. 269 It is a good defense by an innkeeper against a guest's claim for a loss, that it was caused by a servant of the owner, or by one who came with him as his companion, or by the owner's own fault. It is also a good defense if the owner retained, personally and exclusively, the custody and care of the goods; but it is not enough to make this defense sufficient, that the owner exercised some choice as to where his goods should be placed, nor that the key of the room was given him. But an innkeeper may require of his guest to place his goods in a particular place, under lock and key, or to give notice to guests that he will not be responsible for money, or especially valuable goods, unless placed in the innkeeper's safe. If such precautions are reasonable, and the guest neglects them, the innkeeper is not liable. Some articles of this kind a guest needs to have within his immediate reach; and such things he need not deposit in the safe, and the innkeeper would be liable if they were lost without the guest 's own fault. The innkeeper is liable for the loss of the goods while fairly in his custody, though not specially delivered to him ; as if lost while the innkeeper's servant was carrying them to the inn, or from the inn to the cars, or in a hack in which the innkeeper undertook to carry the guest "free" from a station to his inn. Some cases hold that the innkeeper is liable for the loss of goods placed in an inn although the owner does not himself lodge or eat there. But other cases, and we think with better reason, hold that the innkeeper is liable only for the goods when the owner comes and stays with them. He is not liable per- manently for goods left by a guest who has gone away. He would, however, still be held liable for them for a reasonable time, which, in one ease, was said to extend over "some days.'! For a guest may leave for a reasonable time — ^which must not be long — ^with the purpose of return; and while he is absent his goods are under the same responsibility of the innkeeper as if the owner were in the house. If a horse or carriage is put into a distant barn, or a horse into a pasture, by the innkeeper, without the knowledge or con- sent of the owner, the innkeeper is liable for their loss. A boarding-house keeper is liable for loss caused by the negli- gence of his or her servants, as he or she is for his or her own ; but not, like an innkeeper, for a loss without negligence. 270 LIMITATIONS. CHAPTER XXIII. LIUITATIONS. Section I. THE STATUTES OF LIMITATIONS. All of our States have what are called Statutes of Limita- tions. They are not the same everywhere; but they provide different periods of time within which the actions specified in the statutes must be brought. These periods vary from twenty years to one. Generally, they are longer for real actions, or for actions on judgments or on contracts under seal, and shorter for simple contracts of various kinds. An abstract of these statutory provisions in all the States is given at the close of this chapter. In most of the States there is a statute which provides, in substance, that, if a debt- or promise be once barred by the Statute of Limitations, no acknowledgment of the debt or new promise shall renew the "debt, and take away the effect of the statute, unless the new promise is in writing, and is signed by the party who makes the promise. But this statute expressly permits a part-payment either of principal or interest of the old debt to have the same effect as a new promise. And this statute also provides, that if there be joint contractors or debtors, and a plaintiff is barred by the statute against both, but the bar of the statute is removed as to one by a new promise or otherwise, the plaintiff may have judgment against this one, but not against the other. Section II. CONSTRUCTION OF THE STATUTE. Foe the law of limitation there is a twofold foundation; in the first place, the actual probability that a debt which has not been claimed for a long time was paid, and that this is the reason of the silence of the creditor. But, besides this reason, there is the inexpediency and injustice of permitting a stale THE NEW PROMISE. 271 and neglected claim or debt, even if it has not been paid, to be set up and enforced after a long silence and acquiescence. Before inquiring into the rules of law which now apply to the case of an acknowledgment or new promise, it should be remarked that a prescription, or limitation, of common law, much more ancient than the statutes above quoted, is still in force. This is the presumption of payment after twenty years, which is applicable to all debts; not only the simple contracts referred to in the Statutes of Limitation — that is, contracts which are merely oral, or which if written have no seal — ^^but to specialties, or contracts or debts under seal or by judgment of court. Of these it will not be necessary to speak here, except- ing to remark, that in a few of our States the Statute of Limit- ations excepts from the general provision relating to simple contracts a promissory note which is signed in the presence of an attesting witness, and is put in suit by the original payee, or his executor or administrator ; such a note in those States, as in Maine and Massachusetts, may be sued any time within twenty years after it is due. Bank-bills and other evidences of debt issued by banks, are everywhere excepted from the operation of the statute. Section III. THE NEW PROMISE. What is the new promise which suffices to take a case out of the statute?^ A mere acknowledgment, which does not con- tain, by any reasonable implication or construction, a new promise, is not sufficient, and still less so if it expressly excludes a new promise. In the leading American case upon this point, before the Supreme Court of the United States, it was proved, in answer to the plea of the Statute of Limitations, that the defendant, one of the partners of a firm then dissolved, said to the plaintiff, "I know we are owing you;" "I am getting old, and I wish to have the business settled:" it was held that these expressions wtre insufficient to revive the debt. So, in New Hampshire, in an action on a promissory note, the defend- ant, on being asked to pay the note, said "he guessed the note was outlawed, but that would make no difference, he was willing to pay his honest debts, always." As he did not state in direct 272 LIMITATIONS. terms that he was willing to pay the note, this was held not sufficient to revive the debt. A new promise is not now implied by the law itself, from a mere acknowledgment. The new promise need not define the amount of the debt. That can be done by other evidence, if only the existence of the debt and the purpose of paying it are acknowledged. Still, the new promise must be of the specific debt, or must distinctly include it ; for if wholly general and undefined, it is not enough. A testator who provides for the payment of his debts, gen- erally, does not thereby make a new promise as to any one of them. If the new promise is conditional, the party relying upon it must be prepared to show that the condition has been fulfilled. Thus, if the new promise be to pay "when I am able," the prom- isee must prove not only the promise, but that the promisor is able to pay the debt. As the acknowledgment should be voluntary, it follows that one made under process of law, as by a bankrupt, or by answers to interrogatories which could not be avoided, should never have the effect of a new promise. Section IV. PART-PAYMENT. A PART-PAYMENT of a debt is such a recognition of it as implies a new promise, even if it was made in goods or chattels, if they were offered as payment, and agreed to be received as payment, or by negotiable promissory note or bill. Thus, in a case where one was sued for money due for a quantity of hay, and pleaded that it was barred by limitation, which was a good defense, the plaintiff proved in reply that defendant had given him within the ^imitation a gallon of gin as part-payment for his debt; and it was held that this took the case out of the Statute of Limitations, and the plaintiff recovered. But a pay- ment has this effect only whfen the payment is made as of a part of a debt. If it is made in settlement of the whole, of course it is no promise of more. And a bare payment, without words or acts to indicate its character, would not be construed as carrying with it an acknowledgment that more was due and would be paid. THE STATUTORY EXCEPTIONS. 273 If a debtor owes several debts, and pays a sum of money, he has the right of appropriating that money to one debt or another as he pleases. If he pays it without indicating his own appropriation, the general rule is, that the creditor who receives the money may appropriate it as he will. There is, however, this exception. If there be two or more debts, some of which are barred by the statute, and others are not barred by it, the creditor cannot appropriate the payment to a debt that is barred, for the purpose of taking it out of the statute by such part- payment. Section V. the statutoet exceptions. As persons may have a right of action without being able to begin the action within the period required by the statutes, because they are disabled by infancy, or by absence from the State, or by unsoundness of mind, or imprisonment, or in some States by being a maj-ried woman, it is generally provided in the statutes that the limitations there prescribed do not apply to persons so disabled. The more common of these disabilities, and the most universal in our State laws, are infancy • and absence from' the State. But these disabilities must exist when the cause of action arises to prevent the statutes of limitation from applying. And after the disabilities are removed, the persons who have been disabled may bring their action- within certain periods of time. These periods are stated in the ab- stract of the Statutes of Limitation at the close of this chapter. The effect of these is, that the disability must exist when the debt accrued; and then, so long as the disability continues to exist, the statute does not take effect. But it is a general rule, that, if the limitation begins to run, it goes on without any interruption or suspension from any subsequent disability. Thus, if a creditor be of sound mind, or a debtor be at home when the debt accrues, and one month afterwards the creditor becomes insane, or the debtor leaves the country, nevertheless the six years go on, and after the end of that time no action can be -commenced for the debt. Or if the disability exists when the debt accrues, and some months afterwards ceases, so that the limitation begins to run when it ceases, and after- 18 274 LIMITATIONS. wards the disability comes again, it does not interrupt the limit- ation. If, when a debt is due, the debtor is out of the State, the limitation does not begin to run. If afterwards he returns to the State, it then begins to run, and, having begun, it continues to run, in many of the States, although he goes out of the State again, and returns no more. In other States the statutes pro- vides that the time of the debtor's absence from the State is not included in the period of limitation. In this country, a rational construction has been given to the disability of being out of the State, and its removal ; and it is not understood to be terminated merely by a return of the debtor for a few days, if, during those days he was not within reach. If, however, the creditor knew that he had returned, or might have known it by the exercise of reasonable care and diligence, soon enough to have profited by it, this removal of the disability brings the statute into operation, although the return was for a short time only. Section VI. WHEN THE PERIOD OF LIMITATION BEGINS. It is sometimes a question from what point of time the limit- ation must be counted. And the general rule is, that it begins when the action might have been commenced. If a credit is given, this period does not begin until the credit has expired. If a note on time be given, the limitation does not begin until the time has expired, including the additional three days' grace ; if a bill of exchange be given, payable at sight, then the limi- tation begins after presentment and demand; but if a note fee payable on demand, or money is payable on demand, then the limitation begins at once, because there may be an action at once. If there can be no action until a previous demand, the limit- ation begins as soon as the demand is made. If money be pay- able on the happening of any event, then the limitation begins after that event has happened. If several successive credits are given, as if a note is given which is to be renewed ; or if a credit is given, and then a note is to be given ; or if the credit is longer or shorter, at the purchaser's option, as if it be agreed that a ABSTRACT OF STATUTES OP LIMITATIONS. 275 note shall be given at two or four months, — then the limitation begins when th-e whole credit or the longer credit has expired. Section VII. THE STATUTE DOES NOT AFFECT COLLATERAL SECURITY. It is important to remember that the Statute of Limitations does not avoid or cancel the debt, but only provides that "no action shall be maintained upon it" after a given time. There- fore, it does not follow that no right cah be sustained by the debtor, although the debt cannot be sued. Thus, if one who holds a common note of hand on which there is a mortgage or pledge of real or of personal property, without valid excuse neglects to sue the note until after the limitation, he can never bring an action upon that note ; but the pledge or. mortgage is as valid and effectual as it was before; and, as far as it goes, his debt is secure; and for the purpose of realizing this secu- rity, by foreclosing a mortgage, for example, he may have what- ever process is necessary, although he cannot sue the note itself. And the debtor cannot redeem the property pledged or mortgaged except by payment of the debt. This, however, has been changed by Statute in some States. ABSTRACT OF THE STATUTES OF LIMITATIONS. ALABAMA. Judgments of courts of record, twenty years. Actions to recover real property, contracts or writings under seal, actions against sheriffs, coro- ners, constables, and other public officers, for malfeasance in ofSee, ten years. Trespass to the person or real or personal property, detention or conversion of personal property, all promises and writing not under seal, actions for recovery of loan or on an account stated, actions for the use and occupation of land, actions against sureties of public officers, and sureties of executors, administrators, and guacrdians, and judgments of justices of the peace, and actions on simple contract or specialty not spe- cifically enumerated, six yearA Certain actions on equities of redemption in lands sold by decree of court, five years. Actions against surety to writ of error, appeal bond, etc., except on those given in courts of the State. four years. Actions on open or unliquidated account, to be computed from date of last item, or time when account was due, and certain actions founded on mortgages of personal property, three years. Actions by per- 276 LIMITATIONS. sonal representative for death of testator or intestate, actions for damages for personal injury or death of a minor under statute, two years. Mali- cious prosecutions, criminal conversation, seduction, breach of promise, and libel and slander, actions for statutory penalties, and all other actions for injury to person or rights not arising from contract, one year. Persons under disability have three years after the removal of the same in which to sue or defend, but action must be brought within twenty years. Period of defendant's absence from the State is not included. Part payment or unconditional promise in writing only will revive cause of action. ALASKA. Actions for the recovery of real property, on a sealed instrument, or on a judgment, ten years; on contract, or upon a statutory liability, except for a penalty or forfeiture, for waste or trespass upon real property, for taking, detaining or injuring personal property, six years; against a marshal, coro- ner, or constable officially, except for an escape, for statutory penalty or forfeiture, tferee years; for libel, slander, assault, battery, seduction, false imprisonment, injury to person, two years; for escape, one year. Cause of action upon open, mutual and current account is deemed to have accrued at the date of the last item. Time during which a defendant is absent front the Territory is not a part of the time limited. Persons under a dis- ability must commence suit within two years after the removal of the same. Acknowledgment in writing or payment of principal or interest by the party to be charged takes the case out of the statute. ARIZONA. Actions to recover real estate in possession of one cultivating or using same, ten years; cultivating or using under recorded deed, and paying taxes, ■five years; under title or color of title, three years. Action on contract in writing executed within State, six years. Domestic judgments, fve years. On bonds to convey real estate, partnership accounts and accounts be- tween merchant and merchant, judgments rendered without the State, or upon an instrument in writing executed outside the State, actions upon the bond of an administrator, etc., actions for the specific performance of contracts for the conveyance of real estate, and all other actions where no provision made, fowr years. Actions on contracts not in writing and on stated or open accounts, three years. Trespass, trover, conversion, injury to property, detention of personal property, actions under employers' liability act, two years. Actions for injury to the person, malicious prosecution, false imprisonment, libel, slander, seduction, breach of promise, injury to person resulting in death, one year. Limitation is suspended during ab- sence from the State. New acknowledgment or promise must be in writing. Persons under a disability have the same time after the removal thereof. ARKANSAS. Actions to recover real property, seven years. But persons under legal disabilities may bring their action within three years after the removal of such disability. Judgments, ten years. Actions on bonds of executors and administrators, eight years; on oflicial bonds of sheriffs, coroners, and constables, four years. Promissory notes and other instruments in writing, ABSTRACT OF STATUTES OF LIMITATIONS. 277 including those under seal, five years. Contracts not in writing, trespass on lands, libels and actions for taking or injuring goods and chattels, three years. Actions against sheriffs and coroners except for escape, two years. Actions for criminal conversation, assault and battery, false imprisonment, slander, actions against sheriffs for escape, one year; all other causes of action, ■jive years. Suits on mortgages must be brought before the debt se- cured thereby is barred. In all cases except actions to recover real prop- erty, the limitation in regard to persons under disabilities begins to run from the removal of the same. In actions on an account current, the cause of action accrues fiom the last item proved in the account. Any new promise must be in writing, and signed by the party to be charged. Actions which survive may be brought by and against executors and ad- ministrators within one year from the death of the party, or the granting letters testamentary or of administration. Any action failing for any cause not affecting the right of action may be recommended within one year after such failure. CAliIFOENIA. Actions to recover real property or mesne profits of same, five years. Judgments of courts of record, five years. On contracts, obligations, or liabilities founded on an instrument in writing, on book account, account stated, or balance due on mutual open and current account, four years. Actions on statute liabilities, other than penalties and forfeitures, trespass on real estate, trover, detinue, and replevin, actions in ease of fraud, the time beginning to run from discovery of the same, three years. Contracts not in writing, or on abstract or guarantee of the title to real estate, and actions against sheriffs, coroners and constables, for acts done in official capacity, except for escapes, two years. Actions for statute penalties or forfeitures or for an undertaking in a eriminal action, libel, slander, as- sault, battery, false imprisonment, seduction, actions against sheriffs and constables for escapes, action against a municipal corporation for damages caused by a mob or riot, actions for personal injury due to the wrongful act or negligence of another, and actions against banks for payment of a forged or raised check, one year. Action for property seized by tax col- lector, or to Tecover stock sold for illegal assessment, six months. All other actions must be commenced within four years. There is no limitation to actions against a bank or trust company for the recovery of deposits. In actions on mutual, open, and current accounts, the cause of action is deemed to have accrued from the last item proved on either side. The tim& of limitation is not to run against persons out of the State. The limitation in ease of persons under disabilities at the time of accrual of right begins to run from the removal of the same. New promise to revive action must be in writing. COLORADO. Actions for recovery of real property, twenty years. In case of actual possession under connected chain of title, seven years. Persons under dis- ability are allowed two years after removal of disability. Persons in pos- session under color of title for seven years and payment of taxes, or in ease of unoccupied land after seven consecutive years ' payment of taxes, are 278 LIMITATIONS. deemed owners to extent of paper title. Actions on contracts, express or implied, judgments of courts not of record, rent, waste and trespass on land, taking, detaining, or injuring personal property^ and assumpsit, six years. Actions concerning water rights, four years. Actions for injury or death of employee, two years. Assault and battery, false imprisonment, slandenr," libel, actions against sheriffs or coroners, except for escapes, one year. Escapes, six months. All other personal actions, thre^ years. Lim- itations in case of persons under disabilities begin to run from date of re- moval of same. When the cause of action accrued out of the State on a contract, judgment, or sealed instrument, action must be brought within six years of the time it accrued. If cause of action accrued out of the State more than six years before, and was there put in judgment more than three months before action brought here, statute may be pleaded in bax if defendant is a bona fide resident, and may be pleaded upon any judg- ment or decree rendered in any court out of the State against a bona fide resident of the State upon any debt, contract, or liability barred in this State by Statute of Limitations. Cause of action accruing in another State and barred there, barrdd here also, except in favor of citizen of this State who held it when it accrued. CONNECTICUT. Actions to 'recover real property, fifteen years. But person under legal disabilities may bring such action within five years after removal of the dis- ability. Suits on contracts under seal and promissory notes not negotiable, seventeen years; and persons under disabilities, within four years attei re- moval of the same. Actions on all simple contracts, book debts, debt on simple contract, contracts in writing not under seal, except notes not ne- gotiable, six yearsl. Persons under disabilities, three years after removal of the same. In cases of settlement of partnership, or joint occupancy of real or personal estate or joint accounts, courts will take into consideration all the joint transactions since the time of the last settlement, though more than six years have elapsed since said settlement. Except the cases men- tioned above, an action founded on any express contract or agreement not reduced to writing, actions of trespass, or slander, must be brought within three years. Actions for damages for loss of life from negligence, one year from the date of the negligence complained of. Actions for damage to person or property caused by negligence of municipality, railway, or street ■railway company may be brought within one year; provided that no such action may be brought against a tramway or railroad company unless proper notice of the injury is given within four months of date of injury. Any ac- tion properly begun, and failing for a cause not affecting the right of action, may be recommended within one yea/r after such failure, except ac- tions against executors and administrators, which may be begun again within six months. When cause of action is fraudulently concealed, the limitation shall begin to run from discovery of the right of action by the person entitled. ABSTBACT OF STATUTES OF LIMITATIONS. 279 DELAWARE. Eeal actions, actions on sealed instruments and judgments, twenty years; but persons under disabilities may bring a real action within ten years from removal of the same. On official bonds of sheriffs, executors, and adminis- trators, and actions on promissory notes, bills, and acknowledgments in writing, six years. On guardian's bonds, three years from determination of guardianship. Trespass, replevin, detinue, debt other than specialty, account, assumpsit, and case, three years. Personal injury, one year. Time of defendant's absence from the State is not included. In mutual and running accounts, the limitation does not begin to run while the ac- count is open. Persons under disabilities may begin personal actions within three years after removal of .disability. DISTRICT OF COLUMBIA. Real actions, fifteen, years. Actions on executors' or administrators' bonds, five yewrs. On other bonds, covenants or other sealed instruments, twelve years. On simple contract, express or implied, injury to real or personal property, recovery of personal property or damages for detention, three years. Statutory penalty on forfeiture, libel, slander, assault, bat- tery, mayhem, wounding, malicious prosecution, false arrest or imprison- ment, one year. Actions not specially prescribed, three years. Persons under disability some times after removal, but in real actions, and actions in specialties, five years. Time of absence from District not included. FLORIDA. Real actions against person claiming under color of title or adverse pos- session, seven years. Domestic judgmeiits, and writings under seal, twenty years. Foreign judgments, seven years. Writings not under seal, five years. Statute liabilities other than penalties and forfeitures, trespass on real property, talcing, detaining or injuring personal property, replevin, and contracts not in writing, including open accounts for goods, wares, and merchandise, action for relief on ground of fraud, t^ree years. Statute penalties and forfeitures, libel, slander, assault, battery, false imprison- ment, two years. Action for causes other than those above-mentioned, four years. In actions to recover a balance due on mutual, open, and current accounts, the cause of action is deemed to have accrued from the date of the last item proved on either side. New promise must be in writing. GEORGIA. Actions to recover real property, twenty years; but if defendant claim under written evidence of title, seven years; foreign judgments, five years; domestic judgment, seven years. Sealed instruments, and actions to en- force rights accruing under statutes, acts of incorporation or by operation of law, twenty years. Suit against executors, etc., except on their bonds, ten years. Contracts in writing, including bills and notes, six years. Open accounts and contracts not in writing, trespass on realty, or personalty, four years. Injuries to person, two years. Libel and slander, one year. Limitations in case of persons under disabilities begin to run from the re- moval of the same. Any new promise must be in writing. The time of limitation is not to run in favor of persons out of the State. 280 LIMITATIONS. HAWAII. Judgments of courts of record, twenty years. Eeal actions, ten years. Persons under twenty, insane or imprisoned, and those claiming under them, five years from removal of disability. Actions for debt founded on con- tract, except judgments of couTts of record, judgments of courts not of record, actions for arrearages of rent, trespass on land, taking or detaining goods or chattels, replevin, actions on the case for criminal conversation, libel or other injury to rights except as otherwise provided, six years. As- sa,ult and battery, false imprisonment, slander of character or title, special damages for words spoken, and actions against sheriffs or other officers, two years. Actions for injury to person or property, one year. Actions for debt on contract or liability arising in any foreign country, except judgment, four years after cause of action accrued. Cause of action arising in foreign country and barred there is barred here, except in favor of domiciled resident who has held cause of action from the time it accrued. As to persons under disability, limitation begins from removal of same. Time of defendant's absence from the Territory is not included. IDAHO. Judgments and actions for mesne profits of real estate, six years. Suits for possession of realty and contracts, in writing, five years; those not in writing, four years. Statute liabilities other than penalties and forfeitures, trespass on real estate, taking, detaining, or injuring goods and chattels, and actions for relief on the ground of fraud or mistake, three years. Actions against officers for seizing, detaining, or injuring property, actions for penalty or forfeiture, on a statute or undertaking in a criminal case, to recover damages for death, for libel, slander, assault and battery, false imprisonment, seduction, or escape, two years. A cause of action barred in the State or Territory where it arose is barred here. II2LINOIS. Actions to recover real property, and judgments of a domestic court of record, twenty years; but seven year's residence with connected record title, or seven year's actual possession under claim and color of title and payment of all taxes legally assessed, or in the case of unoccupied land, seven years payment of taxes made in good faith under claim and color of title, consti- tutes ownership to the extent of the paper title. Bonds, promissory notes, bills, written leases, written contracts, and other indebtedness in writing, judgments of a domestic court not of record, and suits for foreclosure of mortgages, ten years. Unwritten contracts, judgments of a foreign court of record, awards of arbitration, damages to real or personal property, de- tinue, and trover, and all civil actions not otherwise provided for, five years. Injuries to person, false imprisonment, malicious prosecution, statutory penalties, abduction, and seduction, two yeari. Slander and libel, one year. Actions against the representatives of deceased persons, one year from is- suing letters testamentary or of administration. Persons under disabilities may bring real or personal actions within two years from the removal of ABSTRACT OF STATUTES OF LIMITATIONS. 281 the same. If any person, liable to an action, conceals the same, the statute- begins to run from date of the discovery. Any action defeated for any cause not affecting the right of action may be begun again within one year from such defeat. New promise must be in writing. The time of debtor's absence from the State is not included in the period of limitation. INDIANA. Beal actions, judgments of a court of record and contracts in writing, other than those for the payment of money, twenty years. Promissory notes, bills of exchange, and other written contracts for the payment of money, ten years. Accounts and contracts not in writing, use, rents, and profits of real estate, injuries to property, trover, replevin, actions for (relief against fraud, and for money collected by a public oficer, six years. In- juries to person or character, statutory penalties, and indentures of appren- ticeship, two years. Actions for the recovery of real property sold on execution, brought by the debtor or any person claiming under him, by title acquired after judgment, ten years from sale; for real property sold by executors, etc., on a judgment, by a party to the judgment, or persons claiming under him, subsequent to the judgment, five years after confirma- tion of sale. Actions, not specially limited by statute, fifteen years. Time of debtor's absence from the State not included. In mutual, open, and current accounts, the cause of action is deemed to have accrued from date of last item proved. Persons under disabilities at the time of accrual of right may bring their action within tvm years after removal. -An action failing for a cause not affecting the right other than plaintiff's negligence, may be recommended within five years. New promise must be in writing. IOWA. Judgments of courts of record, twenty years. Real actions, judgments other than of courts of record and written contracts, ten years. Contracts not in writing, and injuries to property, fraud, and all other actions not otherwise provided for, five years. Actions against sheriffs and public ofB.ceTs, three years; injuries to person or reputation, and statute penal, ties, two years. In open accounts, the cause of action accrues from the date of the last item proved. In all cases where by the death of a party an action against his estate is delayed beyond the limitation, such limitation shall be extended six months from such death. In the case of larceny by an administrator, executor, or guardian, statute does not begin to run until the settlement of the estate or the attainment of majority by the ward, as the case may be. Persons under disabilities may begin action within one year from the removal of the same. New promise or acknowl- edgment must be in writing. Period of debtor's non-residence in the State not included, but actions barred where debtor has previously resided, are barred here. KANSAS. Actions for recovery of land sold on execution, or by administrators, etc., by order of the court, five years from the recording of the deed; of 282 LIMITATIONS. land sold for taxes, two years; other real actions, fifteen years; persons under disabilities have two years after removal. Contracts and agreements in writing, and actions on bonds of executors, etc., five years. Contracts not in writing, and statutory liabilities other than penalties or forfeitures, three yea/rs. Trespass on real property, actions for taking, detaining, or injuring personal property, relief from fraud, and injuries to rights arising on contract and not herein enumerated, two years. Libel, slander, assault and battery, malicious prosecution, false imprisonment, penalties, and for- feitures, one year. Time of debtor's absence from the State not included, and causes of action arising in another State, and barred there, are barred here also. Persons under disabilities may begin personal action within one year after removal thereof. After failure of an action for any cause not affecting the right of action, new action may be begun within one year. Ac- knowledgment of a debt barred must be in writing. KENTUCKY. Eeal actions, fifteen years; but seven years' occupation under connected record title is a bar. Persons under disabilities at the time of the acerual of such right may bring an action within tJvree years after the removal of the same, provided the whole time is not extended beyond thirty years. Actions on judgments, bonds, and written contracts, fifteen years. Actions against sureties, seven years. Contracts not in writing, statute liabilities, penalties and forfeitures, trespass, on real and personal property, trover, detinue, replevin, bills, notes, checks, and accounts between merchant and merchant, relief from fraud, and any action for injury to plaintiff's rights not arising on contract and not specially enumerated, five years. Merchants' accounts for goods sold, or changed in store account, two years from first day of January after delivery. Injuries to person, criminal conversation, breach of promise, seduction, malicious prosecution, conspiracy, libel and slander, one year. Actions not otherwise provided for, ten years. In case of persons under disabilities, limitation begins to run from the removal of the same. Absence from the State suspends the running of the statute in one's favor. LOUISIANA. Prescription against immovables ten years under title, and in good faith; thirty years without reference to title or good faith. Against movables, three years in good faith and under, title. Actions on judgments for money and stated accounts, and all personal actions not specially provided for, ten years. Bills' and notes, fwe years. Arrearages of rent, money lent, accounts of merchants, annuities, alimony, salaries of clerks, physicians', apothecaries', surgeons', sheriffs' and attorneys' accounts, three years. Actions for injuries to persons, property or reputation, actions by workmen, etc., for wages, and by innkeepers for lodging and board, freight of vessels and wages of crew, one year. Prescription does not run against minors and persons under interdiction unless specified by law. ABSTEACT OF STATUTES OF LIMITATIONS. 283 ■ , MAINE. Judgments of couTts of record, twenty years. Eeal actions, twenty years; persons under disabilities, twenty years from removal of same, provided the whole • time is .not extended beyond forty years. Witnessed promissory notes and bank bills, twenty years. Debt on contract, and liabilities not under seal, judgment not of record, arrears of rent, assumpsit, and aU actions on the case, waste, trespass, replevin, trover, and detinue, six years. Action against savings bank or trust companies for money paid ou forged order, three years. Assault and battery, false imprisonment, libel and slander, two years; escape, scire facias against bail and trustees, one year; all other personal actions twenty years. On mutual and current accounts, action accrues from the last item proved. Limitation in case of persons under disabilities begins to run from removal of the same. After failure of action for any cause not affecting the right, a new action may be begun within six months. An acknowledgment must be express and in writing to revive a debt. Time of debtor's absence from the State is not included in period of limitation. MARYLAND. Twenty years gives title to land. Actions on judgment, recognizances, specialties, bonds of executors and administrators, twelve years. Bonds of sheriffs, etc., five years: Actions of account, assumpsit, or on the case, debt on simple contract, for rent in arrear, detinue, leplevin, trespass or for injuries to real or personal property, illegal arrest or false imprison- ment, three years. Slander, libel, assault and battery, and negligence causing death, one year. In case of persons under disabilities, limitation begins to run from the removal of the same. The time of limitation does not run in favor of persons absent from the State. MASSACHUSETTS. Eeal actions, twenty years. Witnessed promissory notes by original payee, and bills and notes of a bank, twenty years. Contracts not under seal, actions for arrears of rent, except upon leases under seal, replevin, and all other actions for taking, detaining, or injuring goods or chattels, and tort, except as hereafter specified, six years. Against sheriffs for mis- conduct of deputy, four years. Assault and battery, false imprisonment, and slander, actions against executors, etc., against sheriffs, etc., for taking personal property, and against cities, etc., for personal injuries, two years. Actions for libel and penalties on forfeitures by person .to whom penalty is given, one year. On mutual and open account current, cause of action is deemed to have accrued at the time of the last item proved. Persons under disabilities may bring their action within the time limited after the re- moval of such disabilities. Limitations do not run against persons out of State. Actions against an executor or administrator of a deceased person ■within one year from his giving bond, but -not until after six months. After failure of an action for any cause not affecting the right of action, a new action may be begun within one year. New promise must be in writing. All 284 LIMITATIONS. other actions not otherwise limited, including those on judgments of courts of record in the United States, twenty years. Foreign judgments, six years. MICHIGAN. Eeal actions where defendant claims title through deed made upon sale by executor, sheriff, etc., under order of court, five years; where he claims title under deed made on tax sale, ten years; in all other cases, fifteen years, except when party entitled was absent from the United States, and ■ not in British Provinces, when right of action accrued, and in that case, twenty years. Judgments of courrts of record, ten years. Actions of debt upon contracts not under seal, judgments of courts not of record, actions for arrears of rent, assumpsit, or case founded on any contract or liability, waste, replevin, and trover, and all other actions for taking, detaining, or injuring goods or chattels, and all other actions on the case except slander and libel, six years. Actions against sheriffs for misconduct of deputies, and actions for personal injuries, three years. Trespass on land, assault and battery, false imprisonment, malpractice and slander, two years. Libel, one year. Contracts except as above, ten years. In actions on an account current, the cause of action is deemed to have accrued from the date of the last item proved in the account. Limitations in the case of persons under disabilities begin to run from the removal of the same. In case of death, actions which survive may be brought by or against executors and administrators within two years after granting letters testamentary or of administration. Time of defendant 's absence from the State is not included in limitation. MINNESOTA. Eeal actions and foreclosures of mortgages, fifteen years, but no title by adverse possession of land registered under Torrens system. On judg- ments of courts of record, ten years. Contracts, statutory liability, tres- pass on real estate, actions for taking, detaining, or injuring personal , property, replevin, injuries to the person or rights of another not arising on obligation, and actions for relief from fraud, dating from the time of the discovery of the same, six years. Actions against sheriffs, etc., and statutory penalty or forfeiture, three years. Libel, slander, assault, bat- tery, and false imprisonment, or other tort resulting in personal injury, two years. Time of defendant's absence from the State is not included. On mutual and current accounts, the cause of action accrues from the date of the last item proved on either side, and suit may be brought within six years. Persons under disabilities other than infancy, within one year after removal of the same, provided the orignial limitation is not extended more than five years, and infants within one year after coming of age. MISSISSIPPI. Eeal actions, ten years. On judgments rendered in another State against a citizen of this State, three years, other judgments, seven years. Actions on a promissory note, bill of exchange, or other contract in writing, waste ABSTRACT OF STATUTE^ OF LIMITATIONS. 285 and trespass on real estate, detinue, trover, or other actions for the re- covery of personal property, or damages for its- conversion, six years. Ac- tions on open account and verbal contracts, three years. Assault, battery, maiming, false imprisonment, malicious arrest, slander, and libel, and ac- tions f gr death of employee, one year. In case of persons under disabilities, limitations begin to run from the removal of the same. Actions against executors and administrators within four years from the date of the letters testamentary or of administration, but no suit shall be brought within six months of the issuance of letters. After the failure of any action for a cause not affecting the right of action, a new action may be begun within one year. Any new promise or acknowledgment must be in writing. When the right to recover on a debt secured by mortgage is barred, the remedy on the mortgage is also barred. The time of limitation does not run in favor of persons absent from the State. MISSOUKI. Real actions, ten years. Writings, sealed or unsealed, for the payment of money or property, actions on covenants in deeds, and actions for relief not otherwise provided for, ten years. Judgments are presumed to be sat; isfied in ten years. Actions on contracts not in writing, express or Implied, on open accounts, statutory liabilities, injury to the person or to personal property, actions for relief on ground of fraud, trespass on real estate, trover, detinue, and replevin, five years. Actions against sheriffs, etc., statutory penalties, three years. Libel, slander, assault, battery, false imprisonment and criminal conversation, two years. Actions for death caused by negligence, one year. Limitations in ease of persons under disabilities begin to run from the removal of the same. Any action failing for a cause not affecting the right of action may be brought anew within one year after such failuie. Any new promise must be in writing. The time of defendant's absence from the State without leaving a family or place of abode in the State is not included in the period of limitation. MONTANA. Heal actions, actions for mesne profits, and judgments of courts of record, ten years. Contracts, obligations and liabilities in writing, eight years. Contracts not in writing, action to establish a will, judgments of courts not of record, and actions not otherwise provided for, five years. Ac- tions against a sheriff, coroner or ' constable, except for escape, actions for damages for death, and obligations and liabilities not founded on writing, other than contract, account or promise, three years. Liabilities created by statute, libel, slander, assault, battery, false imprisonment or seduction, waste or trespass on real or personal property, taking, detaining or injuring goods or chattels, including actions for specific recovery, relief on ground of fraud or mistake, and action for killing or injuring stock by railroad, two years. Action against sheriff for escape, against "municipal corpora- tion for damages caused by mob ot riot, action for violation of town or city ordinance, and action against tax collector for property seized, one year. Time of defendant's absence from State not included. Cause of 286 LIMITATIONS. action barred in State where it accrued, barred here. In case of disability real action may be brought within ten years after disability ceases, or after death of person dying in disability. In personal actions period of disability not included, but limitation cannot be extended more than fioe years, and suit must be brought within one year after disability ceases. NEBRASKA. Eeal actions, foreclosure of mortgages, and actions on official and penal bonds, ten years. Specialties, contracts in writing, foreign judgments, five years. Contracts not in writing express or implied, damages for failure of consideration of contract, statutory liabilities, except penalties and for- feitures, trespass on real pioperty, trover, detinue, replevin, and relief on ground of fraud, four years. Libel, slander, assault and battery, malicious prosecution, false imprisonment, statutory penalties and forfeitures, and forcible entry and detainer, one year. Persons under disabilities may bring action within the time limited after removal of the same. New promise in writing, or partial payment, revives the debt. Actions which have been barred by the laws of any other State or Territory aire barred here. NEVADA. Eeal actions, except for mining claims, five years. Judgments and con- tracts in writing, six years. Actions on open account for goods sold and delivered, or charged in store account, and contracts not in writing, four years. Statute liabilities other than penalties or forfeitures, trespass on real estate, taking, detaining, or injuring goods and chattels, specific re- covery of personal property, and relief on ground of fraud dating from the discovery thereof, three years. Actions for the recovery of mining claims, actions against sheriffs, etc., in theii official capacity, statute penal- ties and forfeitures, libel, slander, assault, battery, and false imprison- ment, two years. Statute does not run during defendant's absence from the State, or against persons under disability. Acknowledgment or new promise must be in writing. Actions barred by the laws of any other State or Territory are barred here. An action on a judgment, obligation, lia- bility, contract for the payment of money, or damages obtained or incurred' out of the State, must be commenced within two years. NEW HAMPSHIRE. Real actions, and actions on notes secured by mortgage, twenty years; persons under legal disabilities at the time of accrual of the right, five years from the date of removal of the same. On judgments, recognizances, and contracts under seal, twenty years. Trespass to the person and actions for defamatory words, two years. All other personal actions, six years. Writ of error, three years after judgment. Seire facias against bail and indorsers of writs, one year. Persons under disabilities may bring any per- sonal action within two years after removal of the same. Any new promise, verbal or written, revives a debt. The time of limitation does not run in favor of persons absent from the State. ABSTRACT OF STATUTES OF LIMITATIONS. 287 NEW JEESEY. Seal actions, twenty years. On judgments, twenty years. On lease un- der seal or contract under seal for payment of money only, sixteen years. Trespass, detinue, trover, replevin, debt other than specialty, actions on an account and actions on the case except slander, six years. Assault and battery, wounding, and imprisonment, four years. Slander and actions for injuries to person caused by wrongful act or neglect of any person or corpo- ration, two years. In case of persons under disability, limitation begins to run from date Of removal. Limitations do not run against persons out of the State. Debt revived by written promise or by part payment. NEW MEXICO. Eeal actions, ten years. Persons under disability, one year from the re- moval of the same. Judgments, seven years. Notes and other contracts in writing, six years. Accounts, contracts not in writing, injuries to property, conversion of personal property, relief on ground of fraud, and all other actions not specially provided for, four years. Actions against sureties on official bonds, against sheriffs in their official capacity, injuries to per- son or reputation, two years. Suits against estates of deceased persons eighteen months after date of administration. Eepresentatives of persons dying within one year of expiration of limitation have one year from death to bring suit. Persons under disability are allowed one year from the re- moval of the same. New promise must be in writing. NEW YORK. Eeal property, twenty years. Judgments and sealed instruments, twenty years. Contracts, obligations, and liabilities, express or implied, other than the above, statute liabilities other than penalty or forfeiture, actions for relief on ground of fraud, judgments of courts not of record, actions for injury to property or persons, except as otherwise provided, and for recov- ery of chattels, six years. Actions for statutory penalties or forfeitures, against sheriffs or other officers for non-payment of money collected, against constables except for an escape, actions for injury to the person resulting from negligence, and action against executor, etc., for taking or injuring personal property, three years. Libel, slander, assault, battery, seduction, false imprisonment, malicious prosecution, and forfeitures to the State, two years. Against sheriffs for official liability, except non-payment of money collected, against other officers for an escape, one year. All other actions, ten years. In actions on an account current, the cause of action is deemed to have accrued from the date of the last item proved on either side. Limitation does not run against a person during his absence from the State, unless he designate a representative in manner provided by statute. New acknowledgment or promise must be in writing. Persons under disability may bring action within the time limited after removal of such disability, but in no case shall the period be extended more than ten years in real actions, or five years in personal actions except in case the disability be in- fancy. Action against non-resident barred by law of State of residence 288 LIMITATIONS. - barred here, unless limitation is less than that of New York, when. New York limitation applies. , NORTH CABOIilNA. Ueal actions, twenty years; where adverse possession is under color of title, seven years; persons under disabilities three years after removal of the same. Judgments of a court of record, sealed instruments, fore- closure, and redemption of moi'tgages, ten years. Judgments of courts not of record, and actions by creditors of a deceased person against his (repre- sentatives, seven years. Bonds of public officers, executors, etc., and actions for injury- to any incorporal hereditaments, six years. Actions against any railroad company for compensation for right of way, use and occupancy of land, and for damages caused by the construction of a road, five years. Actions on contracts or liabilities arising out of contracts, actions on statute liabilities other than penalty of forfeiture, trespass on real property, ac- tions for taking, converting, or injuring goods and chattels, criminal conversation or any other injury to the person or rights of another not arising on contract or otherwise provided for, actions against sureties on bonds of executors, administrators, and guardians, three years. Actions against sheriffs, etc., for trespass under color of office, libel, assault, bat- tery, and false imprisonment, actions for escape against sheriffs and other officers, one year. Slander, six months. Actions for relief not otherwise provided for, ten years. Persons under disabilities may bring their action within the time limited after removal of the same, except in case of actions for escape. Actions against representatives of deceased persons, one year after service on creditor of notice to present claim. New promise must be in writing. Time of absence from the State, if more than a year, is not reckoned, NOBTH DAKOTA. Real actions, twenty years. Actions on judgments and instruments af- fecting title to real property, ten years. Actions on other contracts and ob- ligations, express or implied, statutory liabilities other than penalties and forfeitures, trespass on real property, taking, detaining, injuring, or for recovery of personal property, criminal conversation and other injuries to persons and rights not arising on contract, relief on ground of fraud, six yeari. Actions against sheriffs, etc., except for escape, actions for penal- ties and forfeitures, three years. Libel, slander, assault and battery, false imprisonment, and malpractice, and injuries to person causing death, two years. Escape, one year. All other actions, ten years. Limitation does not run against persons out of the State. Persons under disability may bring action within the time limited after removal of such disability, but in no case shaU the period be extended more than ten years in real actions or poe years in personal actions except in case the disability be infancy. OHIO. Real actions, twenty-one years. Persons under disabilities, ten years- after removal of the same. Bonds of executors, administrators, guardians, sheriffs, or other officers, ten years. ■ Specialties and contracts in writing. ABSTRACT OF STATUTES OF LIMITATIONS. 289 ■fifteen years. Contracts not in writing, and statutory liabilities, other than penalty or forfeiture, six years. Trespass on real property, trover, replevin, detinue, other actions for injury to the rights of plaintiff not arising on contract, and for relief from fraud, four years. Forcible entry and detainer, *wo years. Libel, slander, assault, battery, malicious prose- cution, false imprisonment, and malpractice, statutory penalty or forfeiture, one year. Actions for relief not enumerated, ten years. Contest of will one year after probate. In case of persons under disabilities, limitations begin to run from the removal of the same. Any new acknowledgment must be in writing. Time of defendant 's absence from the State is not in- cluded. Cause of action barred in State where it airose is barred here. Mortgage of registered land barred in fifteen years from maturity. No title to registered land by adverse possession or prescription. OKLAHOMA. Eeal actions, fifteen years. Actions on written contracts or ofli'cial bonds, five years. Contracts not in writing, express or implied, and statutory liabilities other than penalty or forfeiture, three years. Trespass on real property, taking, detaining, or injuring personal property, and relief on ground of fraud, two years. Foreign judgments, libel, slander, assault, battery, malicious prosecution, false imprisonment, penalties and forfeitures, one year. Other actions for relief, five years. Persons under a disability should bring suit within two years after the removal thereof. OREGON. Eeal actions, judgments of record and sealed instruments, ten years. Other contracts, six years. Statutory liabilities other than penalty or forfeiture, waste, trespass on real estate, taking, detaining or injuring per- sonal property, six years. Actions against sheriffs, etc., in official capacity, except for escape, penalties and forfeitures, three years. Assault, battery, false imprisonment, criminal conversation, or any injury to the person or rights of another, not arising on contract, and not specifically enumerated, two years. Actions against officers for an escape, one year. In actions on mutual, open, and current account, the cause of action is deemed to have ac- crued fropi the last item proved; but when one year shaU have elapsed be- tween any of a series of items, they are not to be deemed such an account. Limitations do not run against persons out of the State. Persons under dis- abilities, except infants, may bring action within one year after removal of the same, provided the time is not extended more than five years, and in- fants one year after attaining their majority. New promise must be in wait- ing. PENNSYLVANIA. Real actions, twenty-one years; persons under disabilities, thi/rty years after the right of entry accrued. Trespass on real property, detinue, trover, replevin, actions of account and on the case, and actions of debt other than specialty, six years. Suits for specific performance, or to enforce trust or equity of redemption, five years. Judgments, mortgages, and 19 290 LIMITATIONS. sealed instruments are presumed paid after twenty years, unless such pre- sumption is positively Tebutted. Trespass to person not resulting in death, two years; in case of death, one year. Slander and libel, one year. Limit- ations, in case of persons under disabilities, begin to run from removal of the same. Cause of action barred in State where it arose is barred here. THE PHILIPPINES. Real actions ten years. Persons under disability three years after removal of same. Actions on agreement or contract in writing, or decree of court ten years. On contract not in writing, express or implied, statute liability other than forfeiture or penalty, six years. For injury to or trespass upon real estate, for recovery of personal property or damages for taking, detain- ing or injuring personal property, injury to person other than assault and battery or false imprisonment, injury to plaintiff's rights not arising on contract and not hereinafter enumerated, and relief on ground of fraud, four years: Por libel, two years. Por slander, assault and battery, malicious prosecution, false imprisonment or penalty or forfeiture, one year. Any other action for relief ten years. Persons under disability two years after removal of same except in real actions, and in actions for libel, and then one year. Limitation does not run in favor of one absconding or concealing himself, or one out of the Islands. Action barred by laws of place where cause of action arose is barred here. POETO EICO. Title to real property in possession and good faith passes in ten years; as to absent persons in twenty years; and, iirespective of good faith, in thirty years. In cases of disability, 'time begins to run from the removal of the same. Possession of a vessel in good faith after recorded title passes title in three years; otherwise, except as to the captain, in ten years. Merchants must keep their books five years. Possession of personal property in good faith passes title in three years; otherwise in six years. Actions against partners, and on notes, bills, cheques, dividends and drafts, on bottomry and respondentia bonds, and for libel and slander, and kctions against lawyers, notaries, agents, clerks and servants, three years. Actions against directors or stockholders of corporations for penalty or liability, three years. Actions for negligence, one year; for rescission of contract, fraud, or for passage money, six months. Actions on mortgages, twenty years; personal actions, fifteen years. New promise or acknowledgment must be in writing, signed by party to be charged. Limitation does not run while defendant ia out of the Island. RHODE ISLAND. Actions to recover real estate are not limited, but ten years of quiet, uninterrupted, and adverse possession is a good evidence of title. Slander, one year. Injuries to the person, two years. Other actions of trespass, four years. Actions of account, except such as concern the trade or merchan- dise between merchant and merchant; actions on the case, except for slander, and injuries to the person through negligence; debt founded on contract, except specialty; actions for arrearages of rent, actions of detinue ABSTEACT OF STATUTES OF LIMITATIONS. 291 and Teplevin, «& years. Debt other than the preceding and covenant, twenty years. In ease of persons under disabilities, the limitation begins to run from the removal of the same. Actions against executors, etc., except for funeral charges, etc., cannot be brought for six months after first publication of notice of appointment, and must be brought within two years. Limitation does not run in favor of a defendant during absence from the State unless he leave attachable property -within the State. SOUTH CAEOLINA. Eeal actions, ten years. Judgments and sealed instruments, other than sealed notes and bonds for, the payment of money only, not secured by mortgage, twenty years. Other contracts, statutory liabilities except for- feitures and penalties, trespass on real estate, trover, detinue, and replevin, criminal conversation, or any other injury to the person or rights of another not arising on contract, relief from fraud, and actions for wrongful acts causing death, six years. Actions against sheriffs, ete.,^ except for escapes, and actions for penalties and forfeitures, three years. Libel, slander, assault, battery, false imprisonment, and penalties and forfeituies to State, two years. Actions against oflScers for an escape, one year; other actions for relief, ten years. In actions of account, the limitation begins to run from the last item proved on either side. Persons under disabilities may bring action for recovery of real estate within five years after the removal of the same, provided the time is not extended more than ten years; in other cases within one year of such removal, but not to extend time more than five years. Period of defendant's absence from the State, if more than one year, is not included. SOUTH DAKOTA. Eeal actions and actions on judgments rendered in the State, and on sealed instruments, twenty years. Other judgments, ten years. Fore- closure of mortgage, fifteen years. Actions on- other contracts, express or implied, statutory liabilities other than penalties or forfeitures, tres- pass on real property, taking, detaining, or injuring personal property, or recovering same, criminal conversatioil, or other injury to rights of others not arising on contract, relief on ground of fraud, six years. Actions against sheriffs, etc., except for escape, and for penalties and forfeitures, three years. Libel, slander, assault and battery and false imprisonment, two years. Actions against sheriff for escape, one year. Other actions, ten years. Limitation does not run against person out of State. Persons under disability may bring action within the time limited after Temoval of such disability; but in no ease shall the period be extended more than ten years in real actions, or five years in personal actions, except in ease the disability be infancy. TENJSTESSEE. , Eeal actions, seven years. Actions against guardians, executors, adminis- trators, sheriffs, clerks, and other public offleers, on their official bonds, judgments, mortgages, and all other cases not expressly provided for, ten 292 LIMITATIONS. years. Actions against the sureties of guardians, executors, adminiai- trators, sheriffs, clerks, and other public officers, and actions for rent, and for use and occupation of land, and on other contracts not mentioned, six years. Injuries to real or personal property, detinue, and trover, three years. label, injuries to person, false imprisonment, malicious prosecution, seduc- tion, breach of promise, and statutory penalties, one year. Slander, six months. A new action may be begun within one year after the reversal or arrest of judgment in the original. Persons under disabilities may bring action within three years after removal of the same, unless the limit- ation is less than three years, in which ease action must be brought within the time limited after such removal. Actions by a resident of the State against an executor, etc., must be brought within two years and six months after his appointment, by a non-resident within three years and six months. Period of defendant's absence from the State is not included. Actions barred by the laws of the State where they accrued are barred here. TEXAS. • Real actions, against one in possession undgr color of title, three years. Five years' peaceable possession of real estate, cultivating and using the same, paying taxes thereon, and claiming under registered deed, not_ forged, gives good title. Ten years' peaceable possession, cultivation, and enjoy- ment, without evidence of title, gives full title to one hundred and sixty acres, and to all beyond in actual possession. Judgments, ten years. Debt on written contract, by copartners for settlement of partnership ac- counts, mutual current accounts between merchants, suits for specific per- formance of agreement to convey land, and all other causes of action not specially enumerated, fonr years. Injuries to the person or property of another, conversion or detention of personal property, forcible entry and detainer of real estate, actions on open accounts except between merchants, and contracts not in writing, two years. Injucries to character or reputation, and breach of promise, one yea/i'. Limitation does not run against persons under disability. Power of sale in mortgage expires in four years after maturity. , UTAH. ^ Real actions, seven years. In case of disability, two years after the removal thereof. Judgments, eight years. Contracts or obligations in writing, and actions for mesne profits of land, six years. Contracts not in writing, and open accounts for goods, four years. Trespass on real estate, taking, detaining or injuring personal property, and relief on the -ground of fraud, dating from the discovery thereof, three years. Actions against sheriffs, etc., and actions for death caused by wrongful act ot neglect, two years. Statutory penalties and forfeitures, libel, slander, assault and battery, or false imprisonment, and actions against municipal corporation for damages caused by mob or riot, one year. Period of de- fendant's absence from the State is not included. New acknowledgment or promise must be in writing. Persons under a disability may bring actions ■witMn two years after remoyal. ABSTEACT OF STATUTES OF LIMITATIONS. 293 VERMONT. Real actions, f.fteen years. Witnessed promissory notes, fourteen years. Judgments of courts of record, specialties, and covenants except of seizin, eight years. Debt on any contract, obligation, or liability, not undfer seal, or on judgments of courts not of record, debt for rent, actions of account, assumpsit, or case founded on any contract or liability, trespass on land, replevin, actions for taking, detaining or injuring goods and chattels, and actions on the case, except libel and slander, six years. Action against sheriff for act of deputy, four years. Assault and battery, and false imprisonment, libel, slander, damages for bodily hurt, or injury to personal property, tJiree years. Executors and administrators may bring actions which survive, two years after death of the party entitled. Time of absence from the State without known attachable property in the State is not computed in the limitation. Limitations in case of persons under disabilities begin to run from the removal of the same. New promise must be in writing, and signed. VIEGINIA. Land east of the AUeghanies, fifteen years; west of the Alleghanies, ten years. Judgments where there is ofBcer's return on execution, twenty years; when none, ten years; judgments of other States, ten years. Con- tracts in writing under seal, ten years; not under seal, five years. All other contracts, tliree years. Bonds of indemnity, bonds of executors, administrators, curators, committees, guardians, sheriffs, clerks, sergeants, or other fiduciary or public ofScers, ten years. Eecognizance of bail in civil suit, three years after right to sue out execution has accrued, omitting period of suspension by injunction or other legal process; other recog- nizance, ten years. Actions for personal injury or death, one year. Actions between partners for settlement, and accounts concerning the trade of merchandise between merchant and merchant, five years from cessation of dealings. All other personal actions, five years. Acknowledgment of a debt must be in writing. Persons under disabilities may bring actions within the time limited after the removal of their disabilities, provided it be within twenty years from the original accrual of the right. Actions failing by abatement, arrest, or reversal of judgment, may be brought again within one year. The time of limitation does not run in favqr of persons who are absent from the State. WASHINGTON. Eeal actions, ten years. Judgments, contracts in writing, actions for rents and profits or use and occupation of real estate, six years. Actions by an heir or assign, or by a ward or one claiming under him, for the recovery of land sold by an executor, administrator, or guardian as the case may be, fhie years; except that such action may be brought within three years after removal of disability of ward. Waste or trespass upon real ■estate, actions for taking, detaining, or injuring personal property, or' for the specific recovery thereof; or for injury to the person or rights of another, not specially enumerated, contracts not in writing, relief on 294 LIMITATIONS. ground of fraud, actions against sheriffs, etc., except for escape, statute penalties and forfeitures to paity aggrieved, seduction, and breach of , promise of marriage, three years. Libel, slander, assault and battery, false imprisonment, and penalties to the State, two years. Action against oiBcer for escape, and against executors or administrators, one year. On a claim rejected by executor or administrator, three months. Limitation does not run against parties under disability, until after the removal of the same. Causes of action arising in another State or Territory, between non- residents of this State and barred by law there, barred here also. New acknowledgment of promise must be in writing. WEST VIRGINIA. Heal actions, ten years; persons under disabilities, jive years after the removal of the same, provided the whole limitation is not more than twenty years. Indemnity bonds, bonds of executors, administrators, guardians, sheriffs, or other public officers, and other instruments under seal, awards and contracts in writing not under seal, ten years. Other contracts, f/ve years. Partnership accounts and accounts between merchant and merchant, five years from last dealings. Actions on recognizances other than bail in a civil suit, and judgments, ten yea/rs. Eecognizance of bail in civil suit, three years. All other actions, five years. Actions on judgments barred where rendered are barred here; and actions oh contracts made to be per- formed in another State and barred there, are barred here also. Limita- tion does not run in favor of a resident of the State during his absence therefrom or while absconding or concealing himself. New acknowledgment or promise must be in writing. WISCONSIN. Real actions, twenty years; persons under disabilities, five years after removal of the same. An adverse possession of ten years under claim of title under written instrument or judgment is in certain cases a bar. Judgments of courts of record of the State of Wisconsin or of the United States sitting in the State, and sealed instruments, when the cause of action accrues within the State, twenty years. Judgments of other courts of record and sealed instruments accruing without the State, and actions for damages for flowing land, ten years. Othisr contracts, obligations, or lia- bilities, including actions on municipal bonds and coupons, judgments of courts not of record, statutory liabilities other than penalties or forfeitures, injury to property, real or personal, injury to person, character, or rights not arising on contract and otherwise provided for, and actions for, recovery of personal property or damages for taking or detention of same!, and actions for relief on ground of fraud, six years. Actions against sheriffs, coroners and constables, for acts done in their oflicial capacity, except for escapes, three years. Statutory penalties, and forfeitures, libel, slander, assault, battery, false imprisonment, and action for negligently or wrong- fully causing the death of another, two years. Actions against sheriffs, ' etc., for escapes, and actions for damages for seduction or alienation of affections, one year. In actions for damages for injury to person, notice' INTBEEST AND USUBY. 295 must be given within ttoo years. Action against bank for paying forged check one year after return of check to depositor. ' Persons under dis- abilities, except infants, may bring action after the disability ceases, provided the period is not extended more than five years, and infantsi one year after coming of age; actions by representatives of deceased persons, one year from death; against the same, one year from granting letters testamentary or of administration. New promise must be in writing. The time of limitation does not run in favor of persons absent from the State. ■WYOMING. Eeal actions, ten years. Bonds of executors, administrators, guardians, sheriffs, and other officers, all bonds required by statute, and causes of action not specially enumerated, ten years. Specialties and contracts in writing, ten years. Contracts not in writing, and statutory liabilities other than, forfeiture or penalty, eight years; but on all foreign claims, judg- ments, or contracts contracted or incurred before the debtor became a resident of the State, actions must be commenced within five years after he establishes his residence in the State. Trespass on real estate, ^actions for taking, detaining, or injuring personal property, or for the specific recovery "of the same, action for injury to plaintiff's rights not arising on contract, or for relief on ground of fraud and those not otherwise pro- vided for, four years. Libel, slander, assault and battery, malicious prose- cution, false imprisonment, or statutory penalty or forfeiture, one year. Limitations in personal actions do not run against persons under disabilities until after the removal of the same. Time of defendant's absence from the State or absconding or concealment is not reckoned. Actions on causes arising out of the State between non-residents and barred there, cannot be maintained here. New acknowledgment or promise must be in writing. CHAPTEE XXIV. INTEREST AND USURY. Section I. WHAT INTEREST IS, AND WHEN IT IS DDE. Interest means a payment of money for the use of money. In most civilized countries the law regulates this; that is, it declares how much money may be paid or received for the use of money ; and this is called legal interest ; and if more is paid or agreed to be paid than is thus allowed, it is called usurious 296 INTEEEST AND USTJEY. interest. By interest is commonly meant legal interest; and by usury, usurious interest. Interest may be due, and may be demanded by a creditor, on either of two grounds. One, a bargain to that effect ; the other, by way of damages for withholding money that is due. Indeed, it may be considered as now the settled rule, that wherever money is withheld which is certainly due, the debtor is to be regarded as having promised legal interest for the delay. And upon this implication, as on most others, the usage of trade,- and the customary course of dealings between the parties, would have great influence. Thus, in New York, it was held that, where it was known to one party that it was the uniform custom of the, other to charge interest upon articles sold or manufactured by him after a certain time, the latter was allowed to charge interest accord- ingly. In general, we may say that interest is allowed by law as fol- lows: on a debt due by judgment of court, it is allowed from the rendition of judgment; and on an account that has been liquidated, or settled, from the day of liquidation; for goods sold, from the time of the sale, if there be no credit, and if there be, then from the day when the credit expires; for rent, from the time that it is due, and this even if the rent is payable other- wise than in money, but is not so paid; for money paid for another or lent to another, from the payment or loan. Interest is not generally recoverable upon claims for unliquid- ated damages, nor in actions founded on tort. By unliquid- ated damages is meant damages not agreed on, and of an un- certain amount, and which the jury must determine. By torts is meant wrongs, or injuries inflicted. But although interest cannot be given under that name, in actions of this sort, juries are sometimes at liberty- to consider it in estimating the damages. It sometimes happens that money is due, but not now pay- able; and then the interest does not begin until the money is payable. As if a note be on demand, the money is always due, but.it is not payable until demand; and therefore is not on interest until demand. But a note payable at a certain time, or after a certain period, carries interest from that time, whether it be demanded or not. WHAT inti;eest is, and when it is due. 297 The laws which regulate interest and prohibit usury are very- various, and are not perhaps precisely the same in any two of our States. Formerly, usury was looked upon as so great an offense, that the whole debt was forfeited thereby. The law now, however, is — generally, at least — mUeh more lenient. The theory that money is, like any merchandise, worth what it will bring and no more, and that its value should be left to fix itself in a free market, is certainly gaining ground. In many States there' are frequent efforts so to' change the statutes of usury that parties may make any bargain for the use of money which suits them; but when they make no bar,gain, the law' shall say what is legal interest. And, generally, the forfeiture is now much less than the whole debt. At the close of this chapter will be found a statement of the usury laws of the States. There is no especial form or expression necessary to make a bargain usurious. It is enough for this purpose if there be a sub- stantial payment, or promise of payment, of more than the law allows, either for the use of money lent, or for the forbearance of money due and payable. One thing, however, is certain: there must be a usurious intention, or there is no usury. That is, if one miscalculates, and so receives a promise for more than legal interest, the error may be corrected, the excess waived, and the whole legal interest claimed. But if one makes a bar- gain for more than legal interest, believing that he has a right to make such a bargain, or that the law gives him all that he claims, this is a mistake of law, and does not save the party from the effect of usury. It may be well to remark, that the law makes a very wide distinction between a mistake of fact and a mistake of law. Generally, it will not permit a party to be hurt by a mistake of fact ; but it seldom suffers any one to excuse himself by a mis- take of law, because it holds that everybody should know the law, and because it would be dangerous to permit ignorance of the law to operate for any one's benefit. The question has been much discussed, whether the use of the common tables which are calculated on the supposition that a year consists of 360 days, is usurious. In New York, it has been held that it is; but in Massachusetts, and some other States, it is held that the use of such tables does not render the 298 INTEREST AND USUBY. transaction usurious. We think this latter the better opinion. If a debtor request time, and promise to pay for the forbear- ance legal, interest, and as much more as the creditor shall be obliged to pay for the same money, this is not a usurious, con- tract. And, even if usurious interest be actually taken, this, although strong evidence of an original usurious bargain and intent, is not conclusive, but may be rebutted by adequate proof or explanation. "When a statute provides that a usurious contract is wholly void, such a contract cannot become good afterwards ; and there- fore a note which is usurious, if it be therefore void by law in its inception, is not valid in the hands of an innocent indorsee. But it is otherwise where the statute does not declare the con- tract void on account of the usury. If a note, or any securities for a usurious bargain, be delivered up by the creditor and can- celed, and the debtor thereupon promises to pay the original debt and lawful interest, this promise is valid. New securities for old ones which are tainted with usury are equally void with the old ones, or subject to the same defense. Not so, however, if the usurious part of the original securities be expunged, and not included in the new ; or if the new ones are given to third parties, who were wholly innocent of the original usurious transaction. And if a debtor suffers his usurious debt to be sued, and a judgment recovered against him for the whole amount, it is then too late for him to take any advantage of the usury. So, if land or goods be mortgaged to secure a usurious debt, and afterwards conveyed to an innocent party, subject to such mortgage, the latter cannot set up the defense of usury, and thereby defeat an action to enforce the mortgage. Usurers resort to many devices to conceal their usury ; ' and sometimes it is very difficult for the law to reach and punish this offense. A common method is for the lender of money to sell some chattel, or a parcel of goods at a high price, the bor- rower paying this price in part as a premium for the loan. In England, it would seem from the reports to be quite common for one who discounts a note to do this nominally at legal rates ; but to furnish a part of the amount in goods at a very high val- uation. In all eases of this kind, or rather in all cases where questions of this kind arise, the court endeavors to ascertain the WHAT INTEREST IS, AND WHEN IT IS DUE. 299 real character of the transaction. Such a transaction is always suspicious, for the obvious reason that one who wants to borrow money is not very likely to desire at the same time to buy goods at a high price. But the jury decide all questions of this kind ; and it is their duty to judge of the actual intention of the par- ties from all the evidence offered. If that intention is substan- tially that one should loan his money to another, who shall therefore, in any manner whatever, pay to the lender more than legal interest, it is a case of usury. "Where the real truth is a loan of money, ' ' said Lord Mansfield, ' ' the wit of man cannot find a shift to take it out of the statute." If this great judge meant only that, whenever, legal evidence shows the transaction to be a usurious loan, the law pays no respect whatever to any pretense or disguise, this is certainly true. But the wit of man does undoubtedly devise many "shifts," which the law cannot detect. There seems to be a general rule in these cases in ref- erence to the burden of proof; the borrower must first show that he took the goods on compulsion; and then it is for the lender to prove that no more than their actual value was received or charged for them. If one should borrow stock at a valuation much above Ihe market rate, and agree to pay interest on this value for the use of the stock to sell or pledge, this would be usurious. One may lend his stock, and may, without usury, give the borrower the option to replace the stock, or to pay for it at even a high value, with interest. But, if he reserves thi^ option to himself, the bargain is usurious, because it gives the lender the right to claim more than legal interest. So, the lender may reserve either the dividends or the interest, if he elects at the time of the loan; but he cannot reserve the right of electing at a future time, when he shall know what the dividends are. A contract may seem to be two, and yet be but one, if the seeming two are but parts of a whole. Thus, if A borrows one thousand dollars, and gives a note promising to pay legal interest for it, and then gives another note for (or otherwise promises to pay) a further sum, in fact for no consideration but the loan, this is all one transaction, and it constitutes a usurious contract. But if there be a loan on legal terms, with no promise or obligation on the part of the borrower to pay any more, this • 300 INTEREST AND TJSUEY. might not be invalidated by a mere understanding that the borrower should, when the money was paid by him, make a present to the lender for the accommodation. And if, after a payment has been made which discharges all legal obligation, the payer voluntarily adds a gift, this would not be usurious. But in every such case the question for a jury is. What was this additional transfer of money, in fact; "was it a voluntary gift, or was it the payment of a debt ? If an honest gift, it was not usurious ; if a payment, it was usurious. A foreign contract, valid and lawful where made, may be enforced in a State in which such a contract, if made there, would be usurious. But if usurious where it was made, and by^ reason of that usury wholly void in that State, if it is put in suit in another State where the penalty for usury is less, it cannot be enforced imder this mitigated penalty; but it is wholly void there also. Section II. A CHARGE FOR RISK OR FOR SERVICE. It is undoubtedly lawful for a lender to charge an extra price for the risk he incurs, provided that risk be perfectly dis- tinct and different from the merely personal risk of the debtor's being unable to pay. If anything is paid for this last risk, it is certainly usury. So one may charge for services rendered, for brokerage, or for rate of exchange, and may even cause a domestic loan or discount to be. actually converted into a foreign one, so as to charge the exchange; and this would not be usurious. But here, as before, and indeed throughout the law of usury, it is necessary to remember that the actual intention, and not the apparent purpose or form of the transaction, must determine its character. So, if one lends money to be used in business, and lends it upon such terms that he becomes a partner in fact with those who use it, taking his share of the profits, and be- coming liable for the losses, this is not usurious. So, if one enters a partnership, and" provides money for its business, and the other party is to bear all the losses, and also to pay the capitalist more than legal interest as his share of the profits, this is not usurious, because there is no loan, if THE SALE OF NOTES. , 301 there be in fact a partnership ; for then there is a very impor- tant risk, as he becomes liable for all the debts of the partner- ship. The banks always get more than legal interest by their way of discounting notes and deducting the whole interest from the amount they give. This is perfectly obvious if we take an extreme case; as if a bank discounted a note of a thousand dollars at fifteen years, in Massachusetts, the bank would dis- count the interest of all the fifteen years; the borrower would receive one hundred dollars, and at the end of fifteen years he would pay back one thousand dollars, which is equivalent to paying -nine hundred dollars for the use of one hundred for fifteen years, whereas the legal interest would be but ninety dollars. But this method is now established by usage and sanctioned by law. It should, however, be confined to discounts of negotiable paper, not having a very long time to run. For the rule is founded upon usage, and the usage goes no further. Section III. THE SALE OF NOTES. There are, perhaps, no questions in relation to interest and usury of more importance than those which arise from the sale of notes or other securities. In the first place, there is no doubt whatever that the owner of a note has as good a right to sell it for the most he can get, as he has to sell any goods or wares which he owns. There is here no question of usury, because there is no loan of money, nor forbearance of debt. But, on the other hand, it is quite as certain that if any person makes his own note, and sells that for what he can get, this, while in appearance the sale of a note, is in fact the giving of a note for money. It is a loan and a borrowing, and nothing else. And if the apparent sale be for such a price that the seller pays more thaja legal interest, or, in other words, if the note bear interest and is sold for less than its face, or is not on interest, and more than interest is discounted, it is a usurious trans- action. Supposing these two rules to be settled, the question in each case is, under which of them does that case come, or to which of them does it draw nearest. 302 INTEREST AND USTJEY. We are not aware of any general principle so likely to be of use in determining these questions as this; if the seller of a note acquire it by purchase, or if it is for money advanced or lent by him to its full amount, he may sell it for what he can get; but if he be the maker of the note, or the agent of the maker, and receive for the note less than would be paid him if only a lawful discount were made, it is a usurious loan. In other words, the first holder of a note (and the maker of a note is not and cannot be its first holder) must pay to the maker the face of the note, or its full amount. And after paying this, he may sell it, and any subsequent purchaser may sell it as merchan- dise. The same Tule must apply to corporations, and ajl other bodies or persons who issue their notes or bonds on interest. If sold by brokers for them, for less than the full amount, it is usurious. Nor can such notes come into the market free from the taint and the defense of usury, unless the first party who holds them pays for them their full value. But then comes another question. If a note be offered for sale, and be sold for less than its face, and the purchaser sup- poses himself to buy it from an actual holder and not from the maker, can the maker interpose \he defense that it was actually usurious, on the ground that the seller was only his agent? I should say that he could not; that there can be no usury unless this is intended ; and that the guilty intention of one party cannot affect another party who was innocent. I should say also, that one who, having no interest in a note, indorses or guarantees it for a certain premium^ will be liable for its face; he does not now add his credit to the 'value of his property and sell both together, as where he indorses a note which he holds himself, but sells his credit alone. This trans- action I should not think usurious. And if it was open to no other defense, as fraud, for example, and was in fact what it purported to be, and not a mere cover for a usurious loan, we know no good reason why such indorser or guarantor should not be held liable to the full amount of his promise. TOMPOUND INTEREST. 303 Section IV. COMPOUND INTEREST. Compound interest is sometimes said to be usurious; but it is not so; and even those cases which speak of it as "savoring of usury" may be thought to go too far, unless every hard bar- gain for money is usurious. As the authorities now stand, how- ever, a contract or promise to pay money with compound interest cannot, generally, be enforced. On the other hand it is neither wholly void, nor attended with any penalty, as it would be if usurious ; but is valid for the principal and simple interest only. Nevertheless, compound interest is sometimes recognized as due by the courts of law, as well as of equity; and sometimes, too, by its own name. Thus, if a trustee be proved to have had the money of, the party for whom he is trustee (who is called in law his cestui que trust) for a long time, without account- ing for it, he may be charged with the whole amount, reckoned at compound interest, so as to cover his unlawful profits. If com- pound interest has accrued under a bargain for it, and been actually paid, it cannot be recovered back, as money usuriously paid may be. And if accounts are agreed to be settled by annual rests, which is in fact compound interest, or are actually settled so in go6d faith, the law sanctions this. Sometimes, in cases of disputed accounts, the courts direct this method of settlement. Where money due on interest has been paid by sundry in- stalments, the mode of- adjusting the amount which has the best authority, and the prevailing usage in its favor, seems to be this: Compute the interest due on principal sum to the time when a payment, either alone or in conjunction with preceding payments, shall equal or exceed the interest due on the princi- pal. Deduct this sum, and upon the balance east interest as before, until a payment ot payments equal the interest due; then deduct again, and so on. ABSTRACTS OF THE USURY LAWS OF THE STATES AND TERRITORIES. ^ These laws are stated from the latest information, but are constantly undergoing change, and are likely to be so until restrictions upon inter- est are abolished, as they are now in some States. 304 INTEREST AND U8UEY. ALABAMA. Legal interest, eight per cent. Plea of usuTy defeats recovery of all interest. ALASKA. Legal interest, eight per cent., but twelve per cent, may be expressly agreed upon. Double the amount paid can be recovered within two years on usurious contracts. Judgment must be given against the defendant for the amount due without interest, and against the plaintiff for costs when a contract is discovered to be usurious. ARIZONA. Legal interest, six per cent., but parties may agree in writing for any rate not exceeding twelve per cent. ARKANSAS. Legal interest, six per cent., but parties may contract for any rate not exceeding ten per cent. Contracts for more than ten per cent, are - void, both as to principal and interest. CALIFORNIA. Legal interest, seven per cent., but parties may agree in writing for any rate. CANADA, DOMINION OF. Legal interest, generally six per cent., with the right to agree on what parties will; but with exceptions in different provinces, especially as to banks and other corporations, and loans on different kinds of security. COLORADO. Legal interest, eight per cent., but parties may agree in writing upon any rate; except that on loans not exceeding five hundred dollars, secured by mortgage of personal property, or assignment of wages, not more than one per cent, per month is allowed. CONNECTICUT. Legal interest, six per cent., in the absence of any agreement, and no more can be recovered after maturity of obligation. Rate limited to twelve per cent, for all except incorporated banks, trust companies, licensed pawn- brokers, and real Mtate mortgages over five hundred dollars. DELAWARE. Legal interest, six per cent. Penalty for taking more, forfeiture of the money lent — half to the prosecutor, half to the State. DISTRICT OP COLUMBIA. Legal interest, six per cent. Ten per cent, may be paid on written agree- ment. Contract in writing for more than ten per cent., or verbal contract for more than six per cent., forfeits all interest. ABSTEACT OF USURY LAWS. 305 FLOEIDA. Legal interest, eight per cent. Contracts for more than ten per cent, are void and principal only can be recovered. GEORGIA. Legal interest, seven per cent. Eight per cent, may be agreed upon in writing. Usury forfeits entire interest. HAWAII. Legal interest, eight per cent.; on judgments six per cent. Parties may stipulate in writing for one per cent, peor month. Excess and compound interest cannot be recovered. IDAHO. Legal interest, seven per cent. Parties may agree in writing for any rate not exceeding ten per cent. Penalty for greater rate, forfeiture of entire interest; if paid, it may be recovered. ILLINOIS. Legal interest, five per cent. Parties may agree upon seven per cent, in writing. If more is agreed on or is taken upon any contract, verbal or written, only the principal can be recovered. Licensed parties may charge three and one-half per cent, per month on loans under one hundred dollars. INDIANA. Legal interest, six per cent. Eight per cent, may be agreed upon in writing. It may be taken for the period of a year or less in advance. Excess cannot be recovered, and, if paid, shall be considered as paid on account of the principal. On loans under three hundred dollars, licensed parties may charge three and one-half per cent, per month. IOWA. Legal interest, six per cent. Parties may agree in writing for eight per cent. If contract be for more, the creditor recovers only the principal,* and eight per cent, on the amount of the contract is forfeited to the State. KANSAS. Legal interest, six per cent. Parties may stipulate in writing for any rate not exceeding ten per cent. If more' than ten per cent, be contracted for, double the excess is forfeited. KENTUCKY. Legal interest, six per cent. Extra interest forfeited; if paid, may be recovered back. LOUISIANA. Legal interest, five per cent. Eight per cent, may be stipulated in writing, and a higher rate may be collected if embodied in the obligation or as 20 306 INTEREST AND USUBY. discount; but any agreement for more than eight per cent, forfeits the entire interest. MAINE. Legal interest, six per cept. There are no usury laws. MARYLAND. Legal interest, six per cent. Excess forfeited. MASSACHUSETTS. Legal interest, six per cent. Any rate of interest or discount may be made by written agreement. Debtor may discharge loan of less than one thousand dollars by tender of principal and eighteen per cent, interest, with not exceeding five dollars for expenses. MICHIGAN. Legal interest, five per cent. Parties may agree in writing for seven per cent. If more is agreed for, all interest is forfeited. MINNESOTA. Legal interest, six per cent. Parties may agree in writing for ten. Excess, if paid, may be recovered. Usurious contracts are void, except as to hona fide purchasers of negotiable paper before maturity. Rate after maturity same as before; contract for more forfeits all interest. MISSISSIPPI. Legal interest, six per cent. Parties may agree in writing for eight per cent. If more be agreed for, the whole interest will be forfeited. MISSOURI. • Legal interest, six per cent., but parties may agree in writing for any rate not to exceed eight per cent. If more be taken or agreed for, the creditor recovers only the principal and legal interest. MONTANA. Legal interest, eight per cent. Parties may agree in writing for twelve. If more be charged, double entire interest forfeited. NEBRASKA. Legal interest, seven per cent. Parties may agree on any rate not exceeding ten per cent. On proof of illegal interest, plaintiff recovers only principal. NEVADA. Legal interest, seven per cent. But parties may agree in writing twelve. Excess forfeited. NEW HAMPSHIRE. Legal interest, six per cent. A person receiving more forfeits three- fold the excess; but contracts are not invalidated by any stipulation for usurious interest, and principal and legal interest may be recovered. ABSTEACT OF USUET LAWS. 307 KEW JERSEY. Legal interest, six per cent. On usurious contract, principal only can b« recovered. NEW MEXICO. Legal interest, six per cent., but parties may agree for ten per cent., or twelve per cent, if no collateral. If more be charged, all interest deducted from principal, with twice the amount of any inteyest paid. NEW YORK. Legal interest, six per cent. A contract for more than legal interest is wholly void. If more than legal interest is paid, it may be recovered back within a year by payer, or within the next three years by the overseers of the poor. No corporation can interpose the defense of usury; nor can a joint-stock company having the powers of a corporation. When loans on demand of five thousand dollars or more are made on security of bills of lading, negotiable instruments, etc., parties may agree in writing on any rate of compensation. Usury is a misdemeanor punishable by fine or im- prisonment. NORTH CAROLINA. ' Legal interest, six per cent. On usurious contcraets no interest is re- coverable. If usurious interest be paid, twice the amount may be re- recovered by debtor if suit be brought within two years. NORTH DAKOTA. Legal interest, six per cent. Ten per cent, may be contracted for in writing. On usurious contract only principal can be recovered. If usurious interest be paid, twice the amount may be recovered back if sued for in two years. OHIO. Legal interest, six per cent. Any rate not exceeding eight per cent, may be agreed upon in writing. On usurious contract only principal and six per cent, interest can be recovered. OKLAHOMA. Legal interest, seven per cent. Ten per cent, may be contracted for. Usury works forfeiture of twice the amount of interest. OREGON. Legal interest, six per cent. Parties may agree for ten per cent. Usury works a forfeiture of the principal and interest. PENNSYLVANIA. Legal interest, six per cent. Excess forfeited. If paid, may be re- covered back if sued for within six months. Commission merchants and agents may contract with parties out of the State for seven per cent. Oi> demand loans for five thousand dollars or more, secured by bills of lad- ing, etc., any rate may be agreed upon. 308 INTEEEST AND USUKT. THE PHILIPPINES. Legal interest, six, per cent. Twelve per cent, allowed on real estate mortgages, and fourteen per cent, on loans not so secured. Usurious in- struments void, except as to bona fide purchaser in good faith and for valua- ble consideration before maturity, and all*interest paid may be recovered. PORTO EICO. ~ Legal interest, in absence of special agreement, six per cent. Twelve per cent, may be agreed upon. If more be contracted for contract is void as to excess, and excess interest may be recovered if sued for in one year. EHODE ISLAND. Legal interest, six per cent. Any higher rate may be agreed upon, not exceeding thirty per cent, on loans over fifty dollars, and not exceeding five per cent, per month on loans under fifty dollars for three months or less, except by licensed pawnbrokers. SOUTH CAROLINA. Legal interest, seven per cent. Parties may agree in writing for eight per cent. Usury works a forfeiture of entire interest. If usurious inter- est be paid, double the amount may be recovered. SOUTH DAKOTA. Legal interest, seven per cent. Parties may contract for twelve per cent. Real-estate mortgages ten per cent. Usuary forfeits entire interest, and is a misdemeanor punishable by fine and imprisonment. TENNESSEE. Legal interest, six per cent. Excess is forfeited. Loans on mortgages of land in other states may bear interest at rates permitted in such States. Usurious interest if paid may be recovered. Usury is a misdemeanor. TEXAS. Legal interest, six per cent. Parties may agree in writing for ten per cent. If more is agreed for, no interest can be recovered ; if paid, double the amount can be recovered. UTAH. Legal interest, eight per cent. Twelve per cent, may be agreed on Xa writing. Excess if paid may be recovered. Usurious instruments void. VERMONT. Legal interest, six per cent. Excess forfeited, and if paid may be recovered; VIRGINIA. Legal interest, six per cent. If more be charged, no interest can be recovered. Usurious interest paid may be recovered within one year. THE LAW OF PLACE. • 309 WASHINGTON. Legal interest, six per cent. Any rate not exceeding twelve per cent, may be agreed upon in writing. If more be contracted for, only the princi- pal, less the whole amount of unpaid interest contrsicted for and twice the amount of any interest paid, can be recovered. WEST VIEGINIA. Legal interest, six per cent. Contracts for a greater amount are void as to the excess, but one dollar at least may be charged. WISCONSIN. Legal interest, six per cent.; but parties may agree in writing upon a rate not exceeding ten per cent. No interest can be collected on usurious contracts, and, if interest in excess of ten per cent, be paid, treble the amount thereof may be recovered, if sued for within one year. WYOMING. Legal interest, eight per cent. Any rate up to twelve per cent, may be agreed upon in writing. Usury forfeits entire interest. CHAPTER XXV. THE LAW OF PLACE. Section I. WHAT IS MEANT BY THE LAW OP PLACE. If dther of the parties to a contract is not at home, or if both are not at the same home, when they enter into the con- tract, or if it is to be executed abroad, or if it comes into litiga- tion before a foreign tribunal, then the rights and the obligations, of the parties may be affected either by the ,law of the place- of the contract, or by the law of the domicil or home of a party,, or by the law of the place where the thing Is situated to which the contract refers, or by the law of the tribunal before which the ease is litigated. All of these are commonly included in the Latin phrase lex loci, or, as the phrase is translated, the Law of Plaxje. 310 THE LAW OF PLACE. It is obvious that this law must h6 of great importance wherever citizens of distinct nations have much commercial intercourse with each other. In this country it has an especial and very great importance, from the circumstance that, while the citizens of the whole- country have at least as much business connection with each other as those of any other nation, our country is Composed of forty-eight separate and independent sovereignties, which are, for most commercial purposes, regarded by the law as foreign to each other. Section II. THE GENERAL PRINCIPLES OP THE LAVF'OF PLACE. The general principles upon which the law of place depends are four. First, every sovereignty can bind, by its laws, all per- sons and all things within the limits of the State. Second, no law has any force or authority of its own, beyond those limits. Third, by the comity or courtesy of nations, — aided in our case as to the several States, by the peculiar and close relation between the States, and for some purposes by a constitutional provision, — the laws of foreign States have a qualified force and influence. The fourth rule is perhaps that of the most frequent appli- cation. It is, that a contract which is not valid where it is made is valid nowhere else; and one which is valid where it is made is valid everywhere. Thus a contract made in Massachusetts, and there void because usurious, was sued in New Hampshire and held to be void there, although the law of New Hampshire would not have avoided it if it had been made there. But courts do not take notice of foreign revenue laws, and will enfqrce foreign contracts made in -violation of them. If contracts are made only orally, where by law they should be m writing, they can- not be enforced elsewhere where writing is not required; but if made orally where writing is not required, they can be en- forced in other countries where such contracts should be in writing. The rule, that a contract which is valid where it is made is valid everywhere, is applicp,ble to contracts of marriage. As contracts relate either to movables or immovables, or, to use the phraseology of our own law, to personal property or to PLACE OF THE CONTRACT. 311 real property, the following distinction is taken. If the contract refers to personal property (which never has a fixed place, and is therefore called, in some systems of law, movable property), the place of the contract governs by its law the construction and effect of the contract. But if the contract refers to real property, it is construed and applied by the law of the place where that real property is situated, without reference, so far as the title is concerned, to the law of the place of the contract. Hence, the title to land can only be given or received as the law of the place where the land is situated requires and determines. And it has been said that the same rule may properly apply to all other local stock or funds, although of a personal nature, or so made by the local law, such as bank stock, insurance stock, manufacturing stock, railroad shares, and other incorporeal property, owing its existence to or regulated by peculiar local laws; and therefore no effectual transfer can be made of such property, except in the manner prescribed by the local regula- tions. Accordingly, it is held that stock owned by a non-resident is, on his decease, subject to an inheritance tax in the State in which the company was incorporated. As to the capacity of a person to enter into contracts, it is undoubtedly the general rule, that this is determined by the law of his domicil ; and whatever that permits him to do he may do anywhere. Section III. THE PLACE OP THE CONTRACT. A CONTRACT is made when both parties agree to it, and not before. It is therefore made where both parties agree to it, if this is one place. But if the contract be made by letter, or by separate signatures to an instrument, the contract is then made where that signature is put to it; or that letter is written, which in fact completes the contract. But this rule is subject to a very important qualification, when the contract is made in one place, and is to be performed in another place; for then, in general, the law of this last place must determine the force and effect of the contract, for the obvious and strong reason, that parties who agreed that a certain thing should be done in a certain place intended that a thing should be done there which 312 THE LAW OF PLACE. was lawful there, and therefore bargained with reference to the laws of the place, not in which they stood, but in which they were to act. This principle has been applied to an ante-nuptial con- tract, and it was held, that when parties marry in reference" to the laws of another country as their intended domicil, the law of the intended domicil governs the construction of their mar- riage contract as to the rights of personal property. But, for many commercial transactions, both of these rules seem to be in force ; or rather to be blended in such a way as to give the parties an option as to what shall be the place of the contract, and what the rule of law which shall apply to it. Thus, a note written in New York, and expressly payable in New York, is, to all intents and purposes, a New York note; and if more than seven per cent, interest was promised, it would be usurious, whatever was the domicil of the parties. If made in New York, and no place of payment is expressed, it is payable and may be demanded anywhere, but would still be a New York note. But if made in New York, but expressly payable in Boston (where any amount of interest may be agreed for) , and promised to pay ten per cent, interest, when payment of the note was demanded in Boston, the promise of interest would be held valid. So, if the note were made in Boston, payable in New York, and prom- ised to pay ten per cent, interest, it would not be usurious. In other words, if a note is made in one place, but is payable in another, the parties have their option to make it bear the interest which is lawful in either place. If the contract be entered into for money, and is made in one place but is payable at another place on a day certain, and no interest be stipulated, and payment be delayed, interest by way of damages will be allowed, according to the law of the place of payment, where the money may be supposed to have been required by the creditor for use, and where he might be supposed to have borrowed money to supply the deficiency thus occurring, and to have paid the rate of interest of that country. If a note made in New York and payable in Massachusetts were demanded in Massachusetts and unpaid, and afterwards put in suit in Mas- sachusetts, and personal service made on the promisor there, I should say that any interest which it bore should be recovered, provided it were lawful in Massachusetts. And indeed, generally, that such a note being made in good faith, might always bear DOMICIL. 313 any interest lawful where it was payable. But a note made in a State where the law permitted only a low interest, and intended in fact to be paid in that State, but written payable in some State permitting higher interest, merely to get this higher inter- est, could not by this trick escape the usury laws of the State where it was made, and get the higher interest. Section IV. DOMICIL. It is sometimes very important to determine where a person has his domicil, or Home. In general, it is his residence; or that country in which he permanently resides. He may change it by a change of place both in fact and intent, but not by either alone. Thus, a citizen of New York, going to London and remaining there a long time, but without the intention of relin- quishing his home in New York, does not lose that home. And, if he stays in New York, his intention to live and remain abroad does not affect his domicil until he goes in fact. He may have his legal domicil in one place and yet spend a very large part of his time in another. But he cannot have more than one domicil. His words or declarations are not the only evidence of his intent; and they are much stronger evi- dence when against his interest than when they are in his favor. Thus, one goes from Boston to England. If he goes intending not merely to travel, but to change his residence permanently, and not to return to this country imless as a visitor, he changes, his domicil from the day that he leaves this country. Let us suppose, however, that he is still regarded by the assessors as residing in Boston, although traveling abroad, and is heavily taxed accordingly. If he can prove that he has abandoned his original home, he escapes from the tax which he must other- wise pay. Now, his declarations that he has no longer a home here, and that his residence is permanently fixed in England, and the like, would be very far from conclusive in his favor, and could indeed be hardly received as evidence at all, unless they were confirmed by facts and circumstances. But if it could be shown that he had constantly asserted that he was still an American, that he had no other permanent residence, no home but that 314 THE LAW OF PLACE. which he had temporarily left as a traveler, such declarations would be almost conclusive against him. In general, such a ques- tion would be determined by all the words and acts, the arrange- ment of property at home, the length and the character of the residence- abroad, and aH the acts and circumstances which would indicate the actual intention and understanding of the party. Two cases have occurred in the city of Boston which illus- trate this question. In one, a citizen of Boston, who had been at school in the city of Edinburgh when a boy, and formed a pre- dilection for that place as a residence, and had expressed a det-ermination to reside there if he ever should have the means of so doing, removed with his family to that city in 1836, declar- ing, at the time of his departure, that he inteoded to reside abroad, and that, if he should return to the United States, he should not live in Boston. He resided in Edinburgh and vicin- ity, as a housekeeper, taking a lease of an estate for a term of years, and endeavored to engage an American to enter his family for two years as instructor of his children. Before he left Boston he made a contract for the sale of his mansion-house and furniture there, but shortly afterward procured said con- tract to be annulled (assigning as his reason therefor, that, in ■ case of his death in Europe, his wife might wish to return to Boston), and let his house and furniture to a tenant. Held, that he had changed his domicil, and was not liable to taxation as an inhabitant of Boston in 1837. In the other case, a native inhab- itant of Boston, intending to reside in France with his family, departed for that country in June, 1836, and was followed by his family about three months afterwards. His dwelling-house and furniture were leased for a year, and he hired a house for a year in Paris. At the time of his departure he intended to return and resume his residence in Boston, but had not fixed on any time for his return. He returned in about sixteen months, and his family in about nine months afterwards. Held, that he continued to be an inhabitant of Boston, and that he was rightly taxed there during his absence, for his person and pfer- sonal property. This last case was distinguished from the for- mer by the different intent of the parties upon their departure from home. It is a general rule, that, if one has a domicil, he retains it until he acquires another. Thus, if a seaman, without family THE LAW OF SHIPPING. 315 or property, sails from the place of his nativity, which may be considered his domicil of origin, although he may return only at long intervals, or even be absent for many years, yet, if he does not, by some actual residence or other means, acquire a domicil elsewhere, he retains his domicil of origin. It seems to be agreed that one may dwell for a consider- able time, and even regularly during a large part of the year, in one place, or even in one State, and yet have his domicil in another. A woman marrying takes her husband's domicil, and changes it with him. A minor child has the domicil of his father, or of his mother if she survives his father ; and the surviving parent, with whom a child lives, by changing his or her own domicil in good faith, changes that of the child. And even a guardian has the same power. CHAPTER XXVI. THE lAW OP SHIPPING. Section I. THE OWNERSHIP AND TRANSFER OP SHIPS. The Law of Shipping may be considered under three di- visions. First, as to ownership and transfer of ships. Second, as to the employment of ships as carriers of goods, or of pas- sengers, or both. Third, as to the navigation of ships. I begin with the first topic. Ships are personal property ; or, in other words, a ship is a chattel; and yet its ownership and transfer are regulated in this country by rules quite analogous to those which apply to real property. The Constitution of the United States gives to Congress the power to enact laws for the regulation of commerce. In execu- tion of this power, acts were passed in 1792, and immediately after, which followed substantially the Registry and Navigation 316 THE LAW OF SHIPPING. > Laws of England, some of which had been in force about a cen- tury and a half. The English laws were intended to secure English commerce to English men and English ships; and it was supposed that the commercial prosperity of England was in a great measure due to them. The laws on this subject now in force will be found in the Eevised Statutes of the United States, § 4,131 et seq. To secure the evidence of the American character of a vessel, the statutes provide for an exact system of registration in the custom-house. There is no requirement of registration. The law does not say that a ship shall or must be registered, but that certain ships or vessels may be ; and, if they are registered, they shall have certain privileges. And the disadvantage of being without registry operates as effectually to make registration uni- versal, as a positive requirement with a heavy penalty could do. Vessels entitled to registration are : those built within the United States and belonging wholly to citizens thereof; vessels which may be captured in war by citizens of the United States, and lawfully condemned as prize or adjudged forfeited for breach of laws of the United States ; and seagoing vessels wher- ever built which are to engage only in trade with foreign coun- tries or with the Philippines and Island of Guam and Tutuila, and owned wholly by citizens of the United States, or corpora- tions organized and chartered under the laws of the United States or of any State, the president and managing directors of which are citizens of the United States. Every such vessel must be commanded by a citizen of the United States; and all oflcers who have charge of a watch, in- cluding pilots, and including also the chief engineer and assist- ant engineers of steam vessels, must also be citizens of the United States, either native born or naturalized ; but this provision as ^ to watch officers may be suspended by the President whenever the needs of foreign commerce may so require. If a registered American ship be sold or transferred, in whole or in part, to an alien, the certificate of registry must be de- livered up, or the vessel is forfeited; but if, in case of a sale in part, it can be shown that any owner of a part not so sold was ignorant of the sale, his share shall not be subject to such for- feiture. As soon as a registered vessel arrives from a foreign THE OWNERSHIP AND TEANSFEE OF SHIPS. 317 port, her documents must be deposited with the collector of the port of arrival; and the owner, or if he does not reside within the district, the master, must make oath that the register con- tains the names of all persons who are at that time owners of the ship, and at the same time report any transfer of the ship, or of any part, that has been made within his knowledge since the registry ; and also declare that no foreigner has any interest in the ship. If a register be issued fraudulently, or with the knowledge of the owners, for a ship not entitled to one, the register is not only void, but the ship is forfeited. If a new register is issued, the old one must be given up ; but where there is a sale by process of law, and the former owners withhold the register, the Secretary of the Treasury may authorize the col- lector to issue a new one. If a ship be transferred while at sea, 01* abroad, the old register must be given up, and all the require- ments of law, as to registry, etc., must be complied with, within three days after her arrival at the home port. Important exclusive privileges have been granted to regis- tered vessels of the United States. Some of these, relating to • foreign commerce, have since been withdrawn, but Rev. Stat, of U. S., § 4347, still provides that no merchandise shall be carried from port to port in the United States, by any foreign vessel, unless it formed a part of its original cargo. A ship that is of twenty tons burden, to be employed in the fisheries, or in the coasting trade, need not be registered, but must be enrolled and licensed accordingly. If under twenty tons burden, she need only be licensed. If licenced for the fisheries, she may visit and return from foreign ports, having stated her intention of doing so, and being permitted by the collector. And if registered, she may engage in the coasting trade or fishery, and if licensed and enrolled, she may become a registered ship, subject to the regulations provided for such cases. A ship that is neither registered nor licensed and enrolled can sail on no voyage with the privilege or protection of a national character or national papers. If she engages in foreign trade, or the coasting trade, or fisheries, she is liable to for- feiture; and if she have foreign goods on board, must at all events pay the tonnage duties leviable on foreign ships. In 318 THE LAW OF SHIPPING. these days, no ship engaged in honest business, and belonging to a civilized people, is met with on the ocean, without having the regular papers which attest her nationality, unless she has lost them by some accident. Section II. TRANSFEE OF PROPEETY IN A SHIP. Revised Statutes, § 4170, provides that "in every case of sale or transfer, there shall be some instrument in writing, in the nature of a bill of sale, which shall recite at length the said certificate; otherwise the said ship or vessel shall be incapable of being registered anew." It follows, therefore, that a merely oral transfer, although for valuable consideration, and followed by possession, gives the transferee no right to claim a new register setting forth his ownership. But this is all. There is nothing in this statute to prevent the property from passing to and vesting in such transferee. It is, however, unquestionably a principle of the maritime law generally, that the property in a ship should pass by a written instrument. And as this principle seems to be adopted by the statute, the courts have sometimes almost denied the validity of a merely parol transfer. The weight of authority and of reason is, however, undoubtedly in favor of the conclusion stated by Judge Story, that "the regis- try acts have not, in any degree, changed the common law as to the manner of transferring this species of property." It would follow, therefore, that such transfer would be valid, and would pass the property. Rev. Stat., § 4192, provides "that no bill of sale, mortgage, hypothecation, or conveyance of any vessel or part of any vessel of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, a^d per- sons having actual notice thereof ; unless such bill of sale, mort- gage, hypothecation, or conveyance be recorded in the office of the collector of the customs where such vessel is registered or enrolled." Then follows an exception in favor of liens by bot- tomry, and in subsequent sections are provisions for recording by the collector, and giving certificates, etc. PAET-OWNEES. 3I9 As a sHp is, a chattel, a transfer of it should be accompanied by a delivery of possession. Actual delivery is sometimes im- possible where a ship is at sea; and the statute of 1850 makes the record of the transfer equivalent to change of possession. If there be no record, possession should be taken as soon as possible; and prudence would still require the same course in ease of transfer by writing and record. By the word ' ' ship, ' ' and still more by the phrase ' ' ship and her appurtenances," or "apparel," or "furniture," everything would pass which was distinctly connected with the ship, and is on board of her, and fastened to her if that be usual, and needed for her navigation or for her safety. Kentledge, a valuable kind of permanent ballast, has been held to pass with the ship; so have a rudder and cordage prepared for a vessel, but not yet attached to her, and not quite finished; and so would a boat, anchors, etc., generally. But the answer to the question. What is part of the ship? must always depend somewhat upon the words of the instrument, and upon the circumstances of the case and the intention of the parties. A sale by the decree of any regular court of admiralty, with due notice to all parties, and with proper precautions to protect the interest of all, and to guard against fraud or precipitancy, would undoubtedly be acknowledged by courts of admiralty of every other nation as transferring the property effectually. Section III. PAET-OWNEES. Two or more persons may become part-owners of a ship, in either of three ways. They may build it together, or join in purchasing it, or each may purchase his share independently of the others. In either case their rights and obligations are the same. If the register, or the instrument of transfer, or other equiv- alent evidence, do not designate specific and unequal propor- tions, they will be presumed to own the ship in equal shares. Part-owners are not necessarily or usually partners. But a ship, or any part of a ship, may constitute a part of the stock or capital of a copartnership ; and then it will be governed, in aU respects, by the law of partnership. 320 THE LAW OF SHIPPING. A paa-t-owner may at any time sell Ms share to whom he will. But he cannot sell the share of any other part-owner, without his authority. If he dies, his share goes to his representatives, and not to the surviving part-owners. A majority of the part-owners may, generally, manage and direct the employment of the property at their discretion. But a court of admiralty will interfiere and do justice between them, and prevent either of the part-owners from inflicting injury upon the others. One part-owner may, in the absence of the rest, and without prohibition from them, manage the ship, as for himself and for them. And the contracts he enters into, in relation to the em- ployment or preservation of the ship, bind all the part-owners in favor of an innocent third party. Formerly all the part-owners were liable, but by act of Con- gress of June 26, 1884, it is now provided "that the individual liability of a ship-owner shall be limited to the proportion of any or all debts and liabilities that his individual share of the vessel bears to the whole; and the aggregate liabilities of all the owners of a vessel on account of the same shall not exceed the value of such vessel and freight pending. Provided, that this provision shall not affect the liability of any owner incurred previous to the passage of this act, nor prevent any claimant from joining all the owners in one action; nor shall the same apply to wages due to persons employed by said ship-owners." If it can be clearly shown, however, that especial credit was given, and intended to be given, to one part-owner personally, to the exclusion of the others, then the others cannot be holden. If the goods were charged up to "ship" so and so, or to "ship and owners," this would tend strongly to show that it was in- tended to supply the goods on the credit of all the owners. If charged to some one owner alone, this would not absolutely prove that credit was intentionally given to him exclusively. But it would raise a presumption to that effect which could be rebutted only by showing that no other owner was known; or by some other evidence which disproved the intention of dis- charging the other part-owners. So, if the note, negotiable or otherwise, of one part-owner were taken in payment, if the promisor refused to pay, the others LIABILITY OF MOBTGAGES. 321 would be liable, unless they could show 9, distinct bargain by which they -were exonerated. . Commonly, the "ship's husband," as the agent of all the owners for the management of the ship has long been called, is one of the part-owners. He may be appointed in writing or otherwise. His duties are, in general, to provide for the com- plete equipment and repair of the ship, and take care of her while in port ; to see that she is furnished with all regular and proper papers ; to make proper contracts for freight or passage, and collect the receipts and make the disbursements proper on these accounts. For these things he has all the necessary powers. But he cannot, without special power, insure for the rest, nor buy a cargo for them, nor borrow money, nor give up their lien on the cargo for the freight, nor- delegate his authority. Where he acts within his powers, a ship's husband binds all his principals, that is, all the part-owners. But a third party may deal with him on his personal credit alone ; and if the part- owners, believing this, and authorized to believe it by any acts or words of the third party, settle their accounts with the ship 's husband accordingly, this third party cannot now establish a claim against them to their detriment. If a ship's husband is not a part-owner, all the part-owners are liable to him, each for the whole amount. If he is a part-owner, each of the others is liable to him for his share of the expense incurred. The "ship's husband" is called in the Statutes of the United States the "managing owner." Section IV. THE LIABILITY OF MORTGAGEES. A MORTGAGEE of a ship, who is in possession, is, in general, liable for supplies, repairs, etc., in the same way as an owner. But if he has not taken possession, he is not liable for supplies or repairs merely on the ground that his security is strength- ened by whatever preserves or increases the value of the vessel. Nor can he be made liable, except by some act or words of his own, which show that credit was properly given to him, or that he has come under a valid engagement to assume this responsi- bility. 21 322 THE LAW OF SHIPPING. Section V. THE CONTRACT OF BOTTOMET. By this contract, a ship is hypothecated (which means pledged) as security for money borrowed. The form of this contract varies in different places, and, indeed, ia the same place. Its essentials are: — First, that the ship itself is bound for the payment of the money. Second, that the money is to be repaid only "in ease the ship performs a certain voyage, and arrives at its destined termination 'in safety ; or, as it' is some- times provided in modern bottomries, in case that the ship is in safety on a certain day; therefore, if the ship is lost before the termination of the voyage or the expiration of the period, no part of the money is due, or, as is sometimes said, the whole debt is paid by the loss. As the lender thus consents that the repayment of the money shall depend upon the safety of the ship, he has a legal right to charge "marine interest," which means as much more than legal interest as will serve to cover his risk. The lender may require, and the borrower pay, this marine interest, which may be much more than lawful interest, on a bottomry bond, without usury. If the interest be not expressed in the contract, it will gen- erally be presumed to be meant and included in the sum named as principal. If, by the contract, the lender takes more than legal interest and yet the money is to be paid to him whether the ship be lost or not, this is not a contract of bottomry, and it is subject to all the consequences of usury. But the lender may take security for his debt and marine interest, additional to the ship itself, provided the security is given, like the ship itself, to make the payment certain when it becomes due by the safety of the ship, but is wholly avoided if the ship be lost; for then the lender takes the risk of losing the whole, principal and interest, by the loss of the ship, and may therefore charge more than simple interest. The most common contracts of bottomry are those entered into by the master in a foreign port, where money is needed and cannot otheTwise be obtained. Therefore the security goes with EMPLOYMENT OF A SHIP BY THE OWNEE. 323 the ship, and the debt may be enforced, as soon as it is payable, against the ship, wherever the ship may be. But in this coun- try, these contracts are frequently made by the owner himself, in the home port. If the money is payable at the end of a certain voyage, and the owner or his servant, the master of the ship, terminate the voyage sooner, — either honestly, from a change in their plan, or dishonestly, by intentional loss or wreck, — the money becomes at once due. A bottomry bond made abroad would override all other liens or engagements, except the claim for seamen's wages, and the- lien of material-men for repairs, aAd supplies indispensable to the safety of the vessel. The reason is, that a bottomry bond is supposed to be made from necessity, and to have provided the only means by which the ship could be brought home. For the same reason, a later bond is sustained as against an earlier ; and the last against all before it. The lien of bottomry depends in no degree on possession, for the ship may go all over the world with the bottomry security attached to her; but the lender ought to collect the sum due, and so discharge the bond, as soon as he conveniently can; and therefore an unreasonable delay in enforcing it will destroy the lien ; and any connivance by the lender at any fraud on the part of the master avoids the bond entirely. Section VI. THE EMPLOYMENT OF A SHIP BY THE OWNER. An owner of a ship may employ it in carrying his own goods, or those of another. He may carry the goods of others, while he himself retains the possession and direction of the ship ; or he may lease his ship to others, to carry their goods. In the first case, he carries the goods of others on freight; in the second, he lets his ship hy charter-party. "We shall consider first the carriage of goods on freight. He may load his ship as far as he can with his own goods, and then take the goods of others to fill the vacant space ; or he may put up his ship as "a general ship," to go from one stated port to another and to carry the goods of all who offer. 324 THE LAW OF SHIPPING. It may be remarked, that the word "freight" is used in dif- ferent ways; sometimes to designate the goods or cargo that is carried; sometimes to denote the monej-- which the shipper of the goods pays to the owner of the ship, for their transporta- tion. Not infrequently, when the word is used in this latter sense, the word "money" is added, and the phrase "freight- money" leaves no question as to what is meant. Sometimes a ship-owner who lets the whole burden of his ship to another is said to carry the shipper's goods on freight. But the most common meaning of the word, especially in law proceedings, is the money earned by a ship not chartered for the transportation of the goods ; and in this sense we shall use it. Nearly the whole law of freight grows out of the ancient and universal principle that the ship and the cargo have reciprocal duties or obligations towards each other, and are reciprocally pledged to each other for the performance of these duties. In other words, not only is the owner of the ship bound to the owner of the cargo, as soon as he receives it, to lade it properly on board, take care of it while on board, carry it in safety (so far as the seaworthiness of the ship is concerned) to its destined port, and there deliver it, all in a proper way, but the ship itself is bound to the discharge of these duties. That is to say, if, by reason of a failure in any of these particulars, the shipper of the goods is damnified, he may look to the ship-owner for indem- nity ; but he is not obliged to do so, because he may proceed by proper process against the ship itself. This lien, like that of bottomry, is not dependent upon possession, but will be lost by delay, especially if the vessel passes into the hands of a pur- chaser for value without notice. On the other hand, if the ship discharges all its duties, the owner may look to the shipper for the payment of his freight ; but is not obliged to do so, be- cause he may keep his hold upon the goods, and refuse to deliver them until the freight is paid. The party who sends the goods may or may not be the owner of them. And he may send them either to one who is the owner, for whom the sender bought them, or to one who is onlj the agent of the owner. In either of these cases, the sender is called the consignor of the goods, and the party to whom they are sent is called the consignee. The sending them is called the EMPLOYMENT OF A SHIP BY THE OWNEE. 325 consigning, or the consignment of them ; but it is quite common to hear the goods themselves called the consignment. The rights and obligations of the ship-owner and the shipper are stated generally in an instrument of which the origin is lost in its antiquity, and which is now in universal use among com- mercial nations, with little substantial variety of form. It is called the Bill of Lading. It should contain the names of the consignor, of the consignee of the vessel, of the master, of the place of departure, and, of the place of destination; also the price of the freight, with primage and other charges, if any there be, and either in the body of the bill or in the margin, the marks and numbers of the things shipped, with sufficient precision to designate and identify them. It should be signed by the master of the ship, who, by the strict maritime law, has no authority to sign a bill of lading until the goods are actually on board. There is some relaxation of this rule in practice ; but it should be avoided. Usually one copy is retained by the master, and three copies are given to the shipper ; . one of them he usually retains, another he sends to the consignee with the goods, and the other he sends to the consignee by some other conveyance. The delivery of the goods promised in the bill is to the con- signee, or his assigns; and the consignee may designate his assigns by writing on the back of the bill*, "Deliver the within- named goods to A B," and signing this order'; or the consignee may indorse the bill with his name only in blank, and any one who acquires an honest title to the goods and to the bill may write over the signature an order of delivery to himself. The consignee has this power, if such be the usage, even if the word "assigns" be omitted. Such indorsement not only gives the indorsee a right to demand the goods, but makes him the owner of the goods. As the bill of lading is evidence against the ship-owner as to the reception of the goods, and their quantity and quality, it is common to say "contents unknown," or "said to contain," etc. But without any words of this kind, the bill of lading is not con- clusive upon the ship-owner in favor of the shipper, because he may show that its statements were erroneous through fraud or mistake. But the ship-owner, or master, is bound much more 326 THE LAW OF SHIPPING. Strongly by the words of the bill of lading, in favor of a third party, who has bought the goods for value and in good faith, on the credit of the bill of lading. In a case which occurred in New York, the court said, that, as between the shipper of the goods and the owner' of the vessel, a bill of lading may be explained or corrected as far as it is a receipt; that is, as to the quantity of the goods shipped, and the like; but as between the owner of the vessel and an assignee of the bill, for a valuable consideration, paid on the strength of the bill of lading, it may not be explained Or corrected; because the master, by signing the bill, authorizes the purchaser to believe the goods are what the bill says they are. The law-merchant gives to the ship, as we have seen, a lien on the goods for the freight. The master cannot demand the freight without a tender of the goods at the proper time, in the proper way, to the proper person, and in a proper condition; but then the consignee is not entitled to the goods without pay- ing, freight. The law gives this lien, whether it be expressed or not. But it may be expressly waived. The bill of lading, or other evidence, may show the agreement of the parties that the goods should^ be delivered first, and the freight not be payable until a certain time afterwards; and such an agreement is in general a waiver of the lien. Nevertheless, if it seemed that the ship-owner did not intend to give up his security on the goods, a court of admiralty would so construe such an agreement as to give the consignee pos- session of the goods, for a temporary purpose, as to ascertain their condition, or, possibly, that he might offer them in the market, and by an agreement to sell raise the means of paying the freight; and yet would preserve the master his security upon the goods for a reasonable time, unless, in the meantime, they should actually become, by sale, the property of a bona fide purchaser. The contract of affreightment is entire ; therefore no freight is earned unless the whole is earned, by carrying the goods quite to the port of destination. If by wreck, or other cause, the transportation is incomplete, no absolute right of freight goes out of it. "We say no absolute right, because a condi- tional right of freight does exist. To understand this we must remember, that, as soon as the ship receives the goods, it, on EMPLOYMENT OF A SHIP BY THE OWNER. 327 the one hand, comes under the obligation of carrying them to their destination, and on the other, at the same time or on breaking ground and beginning the voyage, acquires the right of so carrying them. Therefore, if a wreck or other interruption intervenes, the ship-owner has the right of trans-shipping them, and sending them forward in the original ship or another ship, to the place of their original destination. When they arrive there, he may claim the whole freight originally agreed on ; but if forwarded in the original ship, he can claim no more; for then the extra cost of forwarding the goods is his loss. If the master or owner of the ship forwards them in another ship from necessity, and at an increased cost, the shipper must pay this increased cost. The ship-owner not only may, but must, send forward the goods, at his own cost, if this can be done by means reasonably within his reach. He is not, however, answerable for any delay thus occurring, or for any damage from this delay. The shipper himself, by his agent, may always reclaim all his goods, at any intermediate port or place, on tendering all his freight ; because the master's right of sending them forward is merely to earn his full freight. If, therefore, the goods are damaged and need care, and the master can send them forward at some time within reasonable limits, and insists upon his right to do so, the ship- per can obtain possession of his goods only by paying full freight. If, however, the master tenders the goods there to the shipper, and the shipper there receives them, this is held to sever or divide the contract by agreement, and now what is called a freight pro rata itineris, or for that part of the voyage which is performed, is due. This is quite a common transaction. If freight for a part of the voyage is payable, the question arises by what rule of proportion shall it be measured. One is purely geographical, and formerly much used- that is, the whole freight would pay for so many miles, and the freight for a part must pay for so many less. Another is purely commer- cial. The whole freight being a certain sum for the whole dis- tance, what will it cost to bring the goods to the place where they are received, and how much to take them thence to their original destination. Let the original freight be divided into two parts proportional to these, and the first part is the freight for the part of the voyage through which they were carried, or, 328 THE LAW OF SHIPPING. as it is called, the freight pro rata, and is to be paid by the ship- per who receives the goods. Neither of these, nor indeed any- other fixed and precise rule, is generally adopted in this country. But both courts and merchants seek, by combining the two, to ascertain what proportion of the increase of value expected from the intended transportation has been actually conferred upon the goods by actual partial transportation, and this is to be taken as the freight that is due pro rata itineris. If the bill of lading requires delivery to the consignee or his assigns, "he or they paying freight," — ^which is usual, — and the master delivers the goods without receiving freig^it, which the consignee fails to pay, the master or owner cannot in the absence of express contract fall back on the consignor and make him liable, unless he can show that the consignor actually owned the goods, or by his words or acts made himself responsible therefor ; in which case the bill of lading, in this respect, is noth- ing more than an order by a principal upon an agent to pay money due from the principal. Under the usual bill of lading the goods are to be delivered to the consignee or his assigns on the payment of freight. If goods are accepted under this bill of lading, the party receiving them, whether the consignee or his assignee, becomes liable for the freight. If the master delivers goods to any one, saying that he shall look to him for the freight, he may demand the freight of him unless that person had the absolute right to the goods without payment of freight; which must be very seldom the ease. If the consignee is not liable for the freight, his indorse- ment of the bill of lading does not make him so. And if the consignee is liable, and the goods are received by any one only as agent of the consignor, this agent does not thereby become liable. If freight be paid in advance, and not subsequently earned, it must be repaid, unless it can be shown that the owner took a less sum for ready cash thaii he would otherwise have had, and for this or some other equivalent reason the money paid was as a final settlement, and was to be retained by the owner at all events. If a consignee pay more than he should, he may recover it back, if paid through ignorance or mistake of fact ; but not if, EMPLOYMENT OP A SHIP BY THE OWNEE. 329 with full knowledge of all the facts, he was ignorant or mistaken as to the law. If one sells his ship after a voyage is commenced, he alone can claim the freight of the shipper of goods, although by the contract of sale the seller is to pay it over to the purchaser. A mortgagee of a ship who has not taken possession, has not, in general, any right to the freight, unless this is specially agreed. Neither has a lender on a bottomry bond. No freight, of course, can be earned by an illegal voyage, as the law will not enforce any illegal contract, or sanction any illegal conduct. The goods are to be delivered, by the bill of lading, in good condition, "excepting the dangers of the seas," and such other risks or perils as may be expressed. If the goods are dam- aged to any extent by any of these perils, and yet can be and are delivered in specie (that is, if the goods are actually deliv- ered although hurt or spoilt, as corn or hides although rotten, flour although. wet, fish although spoilt), the freight is payable. The shipper or consignee cannot abandon the goods for the freight, if they remain in specie, although they may be worth- less; for damage caused by an excepted risk is his loss, and not the loss of the owner. If they are lost by a risk which the ship- owner does not except in the bill of lading, he is answerable for that loss, and it may be charged in settlement of freight. If they are lost in substance, though not in form, that is, although the cases or vessels are preserved, as if sugar is washed out of boxes or hogsheads, or wine leaks out of casks, by reason of injury sustained from a peril of the sea, though the master may deliver the hogshead or boxes or casks, this is not a de- livery of the sugar or of the wine, and no freight is due. If the goods are injured, or actually perish and disappear from internal defect or decay or change, that is, from causes in- herent in the goods themselves, with no fault of the master, freight is due. But if it can be shown that the loss or injury might have been avoided by the use of proper precautionary measures, and that the usual and customary methods for this purpose have been neglected, the master or ship-owners may be held liable for the damage. If they are lost from the fault of the ship-owner, the master, or crew, the ship-owner must make the loss good; but in this 330 THE LAW OF SHIPPING. case may have, by way of offset or deduction, his freight, be- cause the shipper is entitled to full indemnification, but not to make a profit out of this loss. If goods are delivered although damaged and deteriorated from faults for which the owner is responsible, as bad stowage, deviation, negligent navigation, or the like, freight is due; the amount of the damage being first deducted. The rules in respect to passage-money are quite analogous to those which regulate the payment of freight. Usually, how- ever, the passage-money is paid in advance. But it Is not earned except by carrying the passenger, or pro rata, by carrying him only a part of the way with his consent. And if paid in advance, and not earned by the fault of the ship or owner, it can be re- covered back. Section VII. CHARTER-PARTIES. The owner may let his ship to others, and the written instru- ment by which this is done is called by an ancient name, a Charter-Party. The form of this instrument varies- consider- ably, because 'it must express the bargain between the parties, and this of course varies with circumstances and the pleasure of the parties. An agreement to ipake and receive a charter, though not itself equivalent to a charter, will, if the purposes of the proposed charter are carried into effect, be considered as evidence that such a charter was made and completed. Generally, only the burden of the ship is let, the owner hold- ing possession of her, finding and paying her master and crew and supplies and repairs, and navigating her as is agreed upon. Sometimes, however, the owner lets his ship as he might let a house, and the hirer takes possession, mans, navigates, supplies, and even repairs her. In the latter case, bills of lading are not commonly given by the ship-owner to the hirer ; but if the hirer takes the goods of other shippers, bills of lading are given by him to them. In the former ease, which we have said is much more common, bills of lading are usually given by the ship-owner to the charterer (or hirer), as they are in the case of a general ship. They are then, however, little more than evidence of the delivery and CHAETEE-PAETIES. 33I receipt of the goods, for the charter-party is the controlling contract as to all the terms or provisions which it expresses. The master is not authorized to sign bills promising to carry and deliver the goods for less freight than has been stipulated for. And if he signs such bills, and goods are shipped by the charterer, neither the charterer nor any person shipping the goods with a knowledge of the charter-party could defend, on account of the bills of lading, against the owner's claims under the charter-party. ^ There is no particular form required for a charter-party. It should, however, designate particularly the ship, the voyage, the master, and the parties ; should describe the ship generally, and particularly as to her tonnage or capacity; should designate especially what parts of the ship are let, and what parts, if any, are reserved to the owner, or to the master, to carry goods, or for the purpose of navigation; should describe the voyage, or the period of time for which the ship is hired, with proper par- ticularity; should set forth the lay-days, the demurrage, the obligation upon either party to man, navigate, supply, and re- pair the ship, and all other particulars of the bargain, for this is a written instrument of an important character, and cannot be varied by any external evidence. Finally, it should state, dis- tinctly and precisely, how much is to be paid for the ship, — • whether by ton, and if so, whether by ton of measurement or ton of capacity of carriage, or in one gross sum for the whole burden, — and when the money is payable, and how; that is, in what currency or at what exchange, especially if it be payable abroad. The charter-party usually binds the ship and freight to the performance of the duties of the owner, , and the cargo to the duties of the shipper. But the law-merchant would create this mutuality of obligation if it were not expressed. If the hirer takes the whole vessel, he may put the goods of other shippers on board (unless prevented by express stipula- tion) ; but whether he fills the whole ship or not, he pays for the whole; and what he pays for so much of the ship as is empty is said to be paid for dead freight ; and if the master brought back the cargo because it could not be disposed of, the owner of the cargo would pay freight for bringing it back, although the charter-party said nothing about a return cargo. The freight is calculated on the actual capacity of the ship, unless she is agreed 332 THE LAW OF SHIPPING. to be of a specified tonnage. If either party is deceived or de- frauded by any statement in the charter-party, he has, of course, his remedy against the other party. If a charterer takes the goods of other shippers, payment by one of them to the master or sTaip-owner is a good defense against the claim of the charter against him, for so much as the chart- erer was bound to pay the owner, but no more. The voyage may be a double one ; a voyage out, and then a voyage home ; or a voyage to one port, and thence to another. The question sometimes arises, whether any freight is payable if the ship arrives in safety out; and delivers her cargo there, and is lost on her return with the cargo that represents the cargo out. Of course, the parties may make what bargain they please, and the law respects it ; but in the absence of an agree- ment on this point, the courts would generally consider each voyage, at the termination of which goods are delivered, as a voyage by itself, earning its own freight. - As time has become of the utmost importance in commercial transactions, both parties to this contract should be punctual, and cause no unnecessary delay; and for such delay the party injured would have his remedy against the party in fault. The charter-party usually provides for so many "lay-days," and for so much ' ' demurrage. ' ' Lay-days, or working-days, are so many days which the charterer is allowed, without paying for them, or paying only a small price, for loading or for unloading the ves- sel. These lay-days are counted from the arrival of the ship at her dock, wharf, or other place of discharge, and not from her arrival at her port of destination, unless otherwise agreed on by the parties ; and the usage of the port is often adverted to, to determine the place and manner of loading. In the absence of any custom or bargain to the contrary^ Sundays are computed in the calculation of lay-days at the port of discharge, but if the contract specifies "working lay-days," Sundays and holi- days are excluded. If more time than the agreed lay-days is occupied, it must be paid for ; and ' ' demurrage ' ' means what is thus paid. Usually, the charterer agrees to pay so much demur- rage a day. If he agrees only to pay demurrage, without speci- fying the sum, or if so many working days are agreed on, and nothing more is said, it would, generally, be considered that the number of lay-days determined what was a reasonable and CHAETEE-PARTIES. 333 proper delay, and that for whatsoever was more than this the party in fault must pay a reasonable indemnity. If time be oecnpied in the repairs of the ship, which become necessary without the fault of the ship-owner or master, or of the ship itself, that is, if they do not arise from her original un- seaworthiness, the charterer pays during this time. The char- terer or hirer must not abandon the vessel while he can keep her afloat, and suitably provided for the employment and destination for which he was hired; and the ship-owner must be ready to pay air expenses and damages necessarily incurred for the pur- pose. But the charterer will not be bound by the charter-party to wait for the repair, unless the vessel can be repaired within a reasonable time. Many cases have arisen where the ship was delayed by differ- ent causes, and the question occurred, which party should pay for the time thus lost. I should say that no delay arising from the elements, as from ice, or tide, or tempest, or from any act of government, or from any real disability of the consignee which could not be imputed to his own act, or to his own wrong- ful neglect, would give rise to a claim on the charterer for de- murrage. Demurrage seems essentially due only for the fault or volun- tary act of the charterer ; but if he hires at so much on time, that is, by the day, week, or month; then, if the vessel be delayed by seizure, embargo, or capture, and the impediment is removed, and the ship completes her voyage, the charterer pays for the whole time. If she be condemned, or otherwise lost, this termi- nates the voyage and the contract. The contract may be dissolved by the parties, by mutual con- sent, or against their consent by any circumstance which makes the fulfillment of the contract illegal ; as, for example, by a declaration of war, on the part of the country to which the ship belongs, against that, to which she was to go. So, either an embargo, or an act of non-intercourse, or a blockade of the port to which the ship was going, may either annul or suspend the contract of charter-party. And we should say they would be held to suspend only, if they were temporary in their terms, and did not require a delay which would be destructive of the purposes of the voyage. 334 THE LAW or SHIPPING. Section VIII. GENEEAL AVERAGE. Whichever of the three great mercantile interests — ^ship, freight, or cargo — is voluntarily lost or damaged for the benefit of the others, if the others receive benefit therefrom, they must contribute ratably to the loss. That is to say, such a loss is averaged upon all the interests and property which derive ad- vantage from it. The phrase "general average" is used, be- cause a loss of a part is thus divided among all the other parts, and is sustained by all in equal proportion. This rule is an- cient and universal. It would be held to apply to all our inland navigation, whether of river or lake, steam or canvas. There are three essentials in general average without the con- currence of all of which there can be no claim for a loss. First, the sacrifice must be voluntary ; second, it must be necessary ; third, it must be successful. Or, in other \vords, there must be a common danger, a voluntary loss, and a saving of the im- periled property by that loss. The loss must not only be voluntary, but, what is indeed implied in its being voluntary, it must be for the purpose and with the intention of saving something else. And this inten- tion must be carried into effect; for only the interest or prop- erty which is actually saved can be called on to contribute for that which was lost. The reason of what has been said must be distinctly under- stood, because the whole law of general average rests upon it. It is simply this; if any man's property be destroyed for the benefit of his neighbors, they who are helped by his loss ought to make up his loss. The law supposes that all who are inter- ested, in the ship or the cargo, or any part of either, agree to- gether beforehand, that, if a sacrifice of a part can save the rest, that sacrifice shall be made, without stopping to ask who it is that suffers in the first place ; and that afterwards, if the sacri- fice be beneficial to any for whom it was made, such persons shall bear their share of it, by contributions to him whose property was purposely destroyed for their good. And their contribu- tions shall be in proportion to the value of the property saved for them by the sacrifice. GENBEAL AVERAGE. 335 Any loss whieli comes within this reason is an average loss; as ransom paid to a captor or pirate: not so, however, if he take what he will, and leave the ship and the rest; for this there is no contribution. So, cutting away bulwarks or the deck, to get at goods for jettison, is an average_loss. As is also the cut- ting away of the masts and rigging, or throwing overboard a boat to relieve the ship, or the loss of a cable and anchor, or either, by cutting the cable to avoid an impending peril. So is a damage which, though not intended, is the direct effect and consequence of an act which was intended ; as, where a mast is purposely cut away, and by reason of it water gets into the hold, and damages a cargo of corn, this damage is as much a general average as the loss of the mast. But if a ship makes all sail in a violent gale to escape a lee shore, and so saves ship and cargo, but carries away her spars, etc. ; or if an armed ship fights a pirate or enemy, or beats him off at great loss; the first is a common sea-risk, the second a common war-risk, and neither of them is a ground for average contribution. It is not considered prudent to lade goods on deck, because they are not only more liable to loss there, but hamper the vessel, and perhaps make her top-heavy, and increase the com- mon danger for the whole ship and cargo. Therefore, by the general rule, if goods on deck are jettisoned (which old mercan- tile word means cast overboard), they are not to be contributed for. But there are some voyages on which there is a known and established usage to carry goods of a certain kind on deck. This justifies the carrying them there, and then the jettison of them would entitle the owner to contribution. The repairs of a ship are for the benefit of the ship itself. But if a ship be in a damaged condition, at a port where she cannot be permanently repaired, and receive there a temporary repair, which enables her to proceed to another port where she may have a thorough repair, and thereby the voyage is saved, the cost of all of the first repair which was of no further use than to make the permanent repair possible, is to be contributed for by ship, freight, and cargo, because all these were saved by it. If a ship put into a port for necessary repair, and receive it, and the voyage is by reason thereof successfully prosecuted, the 336 THE LAW OF SHIPPING. wages and provisions of the crew, from the time of putting away for the port, the expense of loading and unloading, and every other necessary expense arising from this need of repair, are an average. , As to the expenses, wages, etc., during a capture, or a deten- tion by embargo, the claim for contribution is limited to those expenses which are necessarily and successfully incurred in saving or liberating the property. The loss or sacrifice must be necessary or justified by a reason- able probability of its necessity and utility. An "Adjustment of Average" means an account stated, which exhibits accurately all the losses to be contributed for, and all the property or interests bound to contribute, and all the persons entitled to receive contribution, and the amounts they should each receive, and all persons bound to pay contribution, and the amounts they should each pay. It is the master's duty to have an average adjustment made at the first port of delivery at which he arrives. Ajid an adjust- ment made there, especially if this be a foreign port, is generally held to be conclusive upon all parties. For the purpose of this rule, our States are foreign to each other; as they are indeed for most purposes under the Law of Admiralty, or the Law of Shipping. And we should state the rule to be that an adjust- ment, when properly made, according to the law of the port where it is made, is binding everywhere. But a foreign adjust- ment might doubtless be set aside or corrected, for fraud or gross error. .The master has the right of refusing delivery of the goods, until the contribution due from them on general average is paid to him. Th^t is, he cannot hold the whole cargo, if it belong to different consignees, until the whole average is paid ; but he may hold all that belongs to each consignee, until all that is due from that consignee is paid. And the master may retain public property belonging to the United States until the average con- tribution due upon it has been paid. As the purpose of average and contribution is to divide the loss proportionately over all the property saved by it, the whole amount which any one loses is not made up to him, but only so much as will make his loss the same percentage as every other party, suffers. Thus, if there be four shippers, and each SALVAGE. 337 has on board $5,000, and the ship is worth $15,000, and the freight $5,000, and all the goods of one shipper are thrown over, and everything else saved; now the whole contributing interest is $40,000, and the loss, which is $5,000, is one-eighth of this contributory interest. The shipper whose goods are jettisoned therefore loses one-eighth of his goods, and the remaining seven- eights are made up to him, by each owner of property saved giving up one-eighth. There are usually in every commercial place persons whose business it is to make up Adjustments. With us this work is generally done by insurance brokers. Section IX. SALVAGE. In the Law of Shipping and the usage of merchants, the word ' ' salvage ' ' has two quite different meanings. If a ship or cargo meets with disaster, and the larger part is destroyed or lost, and a part be saved, that which is saved is called the "salvage." Thus, if a ship be wrecked, and sold where she lies because she cannot be got off, her materials, wood and metal, her spars, sails, cordage, boats, and everything else about her which has any value, constitute the "salvage." And all of this, or the proceeds of it if it be sold by the master, belong to the owner or to the insurer, accordingly as circumstances may indi- cate ; and this question will be "Bonsidered in the chapter on the Law of Insurance. Besides this, which is the primary meaning of the word, salvage has quite another signification. By an ancient and uni- versal law, maritime property which has sustained maritime disaster, and is in danger of perishing, may be saved by any person who can save it, whether they are or are not requested to do so by the owner or his agent. And the persons so saving it acquire a right to compensation, and a lien or claim on the property saved for compensation. The persons saving the prop- erty are called "salvors," and the amount paid to them for saving the property is called "salvage." This is now the more common use of the word. 22 338 THE LAW OF SHIPPING. This law is not only applicable- to all maritime property, but is confined to that ; and is nearly unknown in reference to prop- erty saved from destruction on land. Because this principle is wholly and exclusively maritime, no court but that of Admiralty acknowledges and enforces it. Salvors have a lien on the property saved for their compensation ; that is, they have possession of it, and have a right to keep posses- sion of it until their claim be satisfied. If the claim is disputed by the owners it is enforced by proceedings in the Admiralty Court. Although services were rendered to the ship or cargo, or both, it does not follow that they were salvage services in the legal sense of the word. For certainly every person who helps another at sea does hot thereby acquire a right to take possession of the property in reference to which his assistance was given, and carry it into port. To give this right, the property, whether ship or cargo, must have been in the proper and rational sense of the term saved; that is, there, must have been actual dis- aster and impending danger of destruction ; and from this dan- ger the property must have been rescued by the exertion of the salvors, either alone, or working together with the original crew. It is to be noticed, however, that neither the master nor ofiicers nor sailors of the ship that is saved can be salvors, or entitled to salvage. The policy of the law-merchant forbids the holding out such a reward for merely doing their duty. It considers that sailors might be induced to let the vessel get into danger, if they could expect a special reward for getting her out of it. They are already bound by law to do all they possibly can do to save the ship and .cargo under all circumstances. But courts of admiralty have sometimes allowed gratuities to seamen for extraordinary exertions and very meritorious conduct. A pas- senger may be a salvor of the ship he sails in, because he has no especial duty in regard to it. If the Court of Admiralty find it to be a ease for salvage, there are no positive and certain rules which determine how much shair be given, or in what proportions, to the different salvors. In every case the court is governed by the circun- stances of that case; and even if a ship or cargo be entirely abandoned at sea, or, in maritime phrase, derelict, those who find it and take possession of it, and bring it in, take according THE NAVIGATION OF THE SHIP. 339 to their merits, and not one-half, as used to be the rule. More than one-half is very seldom giveii; but this has been done in a few extraordinary cases. If the property is not entirely derelict or deserted, and all hope of recovering it by the original crtew given up, then less than half is usually given by way of salvage. How much less depends on the circumstances. It may be very little, or nearly half. The court will inquire how much time was lost by the salvors, how much labor the saving of the property required, and, most of all, how much exposure the salvors underwent, or how much danger they incurred. For it is an established rule, that in addition to a fair compensation for time, labor, and loss of insurance (for which see the chapter on Insurance), the court will give a further sum by way of reward, and for the purpose of encouraging others to make similar exertions and incur similar perils to save valuable property. And, in this point of view, all necessary exposure and danger are considered as entitled to liberal reward. If the court have not restored the property to its owners on their giving bonds with sureties to pay the salvage and costs, they order the property sold; and they may do' either of these things at any period of the proceedings. At the close, they decree the whole amount of salvage, and also direct particularly its distribution. A large part, usually about one-fourth, of the whole salvage, ia allowed to the owners of the saving ship or ships; another large part to her master, less parts to the officers, in proportion to their rank, and the residue is divided among the crew, with such discrimination between one and another as greater or less exertions or merit require. Section X. THE NAVIGATION OF THE SHIP. 1. Of THE Powers and Duties of the Master. — The mas- ter has the whole care and the supreme command of his vessel, and his duties are co-equal with his authority. He must see to everything that respects her condition; including her repair, supply, loading, navigation, and unloading. He is principally 340 THE LAW OF SHIPPING. the agent of the owner; but is, to a certain extent, the agent of the shipper, and of the insurer, and of all who are interested in the property under his charge. Much of his authority as agent of "the owner Springs from necessity. He may even sell the ship in a case of extreme necessity ; so he may make a bottomry bond which shall pledge her for a debt ; so iie may charter her for a voyage or a term of time; so he may raise money for repairs, or incur a debt therefor, and make his owners liable. All these, however, he can do only from necessity. If the owner be present, in person or by his agent, or is within easy access, or can be consulted, by telegraph or otherwise, without a loss of time which would be seriously injurious, the master has no power to do any of these things unless specially authorized. If he does them in the home port, the owner is liable only where, by some act or words, he ratifies or adopts the act of hjs master. If in a foreign port, even if the owner were there, he may be liable, on his master's contracts of this kind, to those who neither knew nor had the means of knowing that the master's power was superseded or qualified by the presence of the owner. The master being by the law-merchant the general agent of the owner of the ship, no one dealing with him can be prejudiced by any private or secret limitations to his authority by the owner. Beyond the ordinary extent of his power, which is limited to the care and navigation of the ship, he can go, as we have said, only from necessity. But this necessity must be greater to justify some acts than for others. Thus, he can sell the ship only in a case of extreme and urgent necessity; that is^ only when it seems in all reason impossible to save her, and a sale is the only way of preserving Jfor the owners or insurers any part of her value. "We say ' ' seems ; ' ' for if such is the appear- an(3e-at the time, when all existing circumstances are carefully considered and weighed, the sale is not void, if some accident, or cause which could not be anticipated, as a sudden change in the wind or sea, en&bles the purchaser to save her easily. Several such eases have occurred. So, to justify him in pledging her by .bottomry, there must be a stringent and sufficient necessity; but it may be far less than is required to authorize a sale. It is enough if the money THE NAVIGATION OF THE SHIP. 341 is really n-eeded for the safety of the ship, and cannot otherwise be raised, or not without great waste. So, to charter the ship, there must be a sufficient necessity, unless the master has express power to do this. But the neces- sity for this act may be only a mercantile necessity; or, in other words, a certain and considerable mercantile expediency. So, to bind the owners to expense for repairs or supplies, there must also be a necessity for them. But here it is suffi- cient if the repairs or supplies are such as the condition of the vessel, and the safe and comfortable prosecution of the voyage, render proper. So the master — ^unlike other agents, who have generally no power of . delegation — may substitute another for himself, to discharge all his duties, and possess all his authority, if he is unable to discharge his own duties, because, in that case, the safety of the ship and property calls for this substitution. Generally, the master has nothing to do with the cargo be- tween the lading and the delivery. But, if the necessity arises, he may sell the cargo, or a part of it, at an intermediate port, if he cannot carry it on or transmit it, and it must perish before he can receive specific orders. So, he may sell it, or a part, or pledge (or hypothecate) it, by means of a respondentia bond, in order to raise money for the common benefit. A bond of respondentia is much the same thing as to the cargo* that a, bottomry bond is as to the ship. Money is borrowed by it, at maritime interest, on maritime risk, the debt to be discharged by a loss of the goods. But it can be made by 'the master only on even a stronger necessity than that required for bottomry ; only when he can raise no money by bills on the owner,, nor by a bottomry of the ship, nor by any other use of the property or credit of the owner. Indeed, it seems that, when goods are sold by the master to repair the vessel, it is to be considered as in the nature of a forced loan, for which the - owner of the vessel is liable to the shipper, whether the vessel arrive or not. The general remark may be made, that a master has no ordinary power, and can hardly derive any extraordinary power even from any necessity, except for those things which are fairly within the scope of his business as master, and during his employment as master. Beyond this he has no agency or authority that is not expressly given him. 342 THE LAW OF SHIPPING.^ The owner is liable also for the wrong-doings of the master; but with the limitation which belongs generally to the liability of a principal for the torts of his agent, or of a master for the torts of his servant. That is, he is liable for any injury done by the master while acting as the master of his ship, but not for the wrongful acts which he may do personally when he is not acting in his capacity of master,- although he holds the office at the time. Thus if, through want of skill or care while navi- gating the ship, he runs another down, the owner is liable for the collision. But the owner is not liable if the master em- bezzles goods which he takes on board to fill his own privi- lege, to have himself all the freight and profit. For any misdeed of the master, for which the owner is liable, his liability is limited to the value of the ship and freight. 2. Op Collision. — The general rules in this country in respect to collision are that the party in fault suffers his own loss and. compensates the other party for the loss he may sustain. If neither is in fault, the loss rests where it falls. If both parties are in fault, the loss rests where it falls by the rules of the common law, biit is equally divided in Admiralty. There are certain rules in regard to sailing, founded on the principle that the ship which can change its course to avoid collision with least inconvenience must do so. Those^ contained in Rev. Stat. § 4233, as amended by Act of , March 3^ 1897, require that "when two sailing-vessels are ap- proaching one another, a vessel which is running free shall keep out of the way of a vessel which is close-hauled ; a vessel which is close-hauled On the port tack shall keep out of the way of a vessel which is close-hauled on the starboard tack; when both are running free, with the wind on different sides, the vessel which has the wind oh the port side shall keep out of the way of the other; when both vessels are running free, with the wind on the same side, the vessel which is to the windward shall keep out of the way of the vessel which is to the leeward; a vessel which has the wind aft shall keep out of the way of the other vessel." "If two vessels under steam are meeting end on, the helms of both shall be put to port so that each may pass on the port side of the other ; if crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other," SEAMEN. 343 Steam-vessels are regarded in the light of vessels navigat- ing with a fair wind, and are always under obligations to do whatever a sailing-vessel going free or with a fair wind would be required to do under similar circumstances. Their obligation extends still further, because they possess a power to avoid collision not belonging to sailing-vessels, even if they have a free wind, the master having the steamer under his command, both by changing the helm and by stopping or reversing the engines. As a general rule, therefore, when meeting a sailing-vessel, whether close-hauled or with the wind free, the latter has a right to keep her course, and it is the duty of the steamer to adopt such precautions as will avoid her. The statute, in addition to the sailing and steering rules above mentioned, provides rules for the display of lights and the use of fog signals by different classes of vessels on different oc- casions. Briefly stated, these rules provide that in the night all vessels in motion shall carry a green light on the starboard side and a red light on the port side. Ocean steamships and steamers carrying sail carry in addition a white light on the foremast head ; coasting steamers a central range of two white lights; and steamers towing other vessels two white mast-head lights arranged vertically. All vessels at anchor in a roadstead must show a white light. In foggy weather a steamer under way must sound a steam- whistle, and when towing, three blasts of quick succession, at intervals of not more than one minute. Sailing-vessels under way must sound a fog horn at intervals of not more than one minute. Both steamers and sailing-vessels at anchor must sound a bell at intervals of not more than two minutes. Section XI. THE SEAMEN. The law makes no important distinction between the officers, or mates, -as they are usually called, and the common sailors, except that the former must be citizens, of the United Stjates. Our statutes contain many provisions in behalf of the seamen, and in regulation of their rights and duties, although the con- 344 THE LAW OP SHIPPING. tract between them and the ship-owner is in general one of hiring and service. They relate principally to the following points: 1st, the shipping articles; 2d, wages; 3d, provisions and subsistence; 4th, the seaworthiness of the ship; 5th, the care of seamen in sickness; 6th, the bringing them home from abroad ; 7th, regulation of punishment. First. Every master of a vessel bound from a port in the United States to any foreign port, except British North America, "West India Islands, or Mexico, or of any ship or vessel of the burden of seventy-five tons or upwards, bound from a port in the Atlantic to one on the Pacific, or vice versa, is required to have shipping articles, which articles every seaman on board must sign, in the presence of a U. S. Shipping Commissioner. They must contain the following particulars : " 1. The nature, and as far as practicable, the duration of the intended voyage or engagement, and the port or country at which the voyage is to terminate ; 2. The numbers and description of the crew, specify- ing their respective employments; 3. The time at which each seaman is to be on board, to begin work; 4. The capacity in which each seaman is to serve ; 5. The amount of wages which each seaman is to receive; 6. A scale of the provisions which are to be furnished to each seaman; 7. Any regulations as to conduct on board, and as to fines, short allowance of provisions, or other lawful punishments for misconduct which may be sanc- tioned by Congress as proper to be adopted and which the parties agree to adopt ; 8. Any stipulations in reference to allotment of wages, or other matters not contrary to law." Second. Wages are regulated as above, and by limiting the right to demand payment in a foreign port to one-half the amount then due, unless otherwise stipulated. Seamen have a lien on ship and freight for wages, which is enforceable in Admiralty. By the ancient rule, that freight is the mother of wages, any accident or misfortune which made it impossible for the ship, to earn its freight destroyed the claim of the sailors for wages. This rule is now abolished by statute, but in case of wreck or loss of vessel, wages are recoverable only to the time of such wreck or loss. Payment of advance wages is now prohibited by law. Orders to be paid from future wages are also forbidden, except that a seaman may stipulate in the shipping agreement for allot- SEAMEN. 345 ment of any portion of his wages to be paid to wife, children, parents, grandparents Or sister. Such allotment must be in writing, approved by a shipping commissioner. Third. Provisions of due quality and quantity must be fur- nished by the owner, and extra wages are given to the seamen when on short allowance, or if the provisions furnished are of bad quality, unless the necessity be caused by some peril of the sea, or other accident of the voyage. The master may at any time put them on a fair and proper allowance to prevent waste. Fourth. The owner is bound to provide a seaworthy vessel, and our statutes provide the means of lawfully ascertaining her condition at home or abroad, by a regular survey, on complaint of the mate and a majority of the seamen. If seamen, after being shipped, refuse to proceed upon their voyage, and are complained of and arrested, the court will inquire into the condition of the vessel, and if the complaint of the seamen is justified, will dis- charge them, or mitigate or reduce their punishment. Fifth. As to sickness, our statutes require that every vessel belonging to a citizen of the United States bound to any foreign port, or being of the burden of seventy-five tons and bound from a port on the Atlantic to one on the Pacific, or vice versa, must be provided with -a chest of medicines. Sailing-vessels bound ,on long voyages are required to carry suitable quantities of lemon juice, vinegar, etc., as precautions against scurvy. For failure to do so the owner or master is liable to heavy fine. Marine hospitals are also maintained Ijy the Government to which every sick seamen may repair without charge. In addition to this the general law-merchant requires every ship-owner or master to provide suitable medicine, medical treatment, ahd care, for every seaman who becomes sick, wounded, or maimed, in the service of the ship, at home or abroad, at sea or on shore ; unless this is caused by the misconduct of the seaman himself. The right to these things extends to. the officers of the ship. Sixth. The right of the seaman to be brought back to his own home is very jealously guarded by our laws. The master is required before sailing to give a bond for the return of the men named in the shipping articles. He should always present his shipping articles to the consul or commercial agent of the United States, at every foreign port which he visits, but is not required by law to do this unless the consul requires. He must. 346 THE LAW OF SHIPPING. however, present them to the first boarding oificer on his arrival at a home, port. And if, upon an arrival at a home port from a foreign voyage, it appears that any of the seamen are missing, the master must account for their absence. Our consular officers may aiithorize the discharge of a seaman on his own application or that of the master, if it appears that he has completed his shipping agreement, or is entitled to his discharge under any Act of Congress or according to the principles and usages of mari- time law ; in which case his wages must be paid to the date of dis- charge, but not beyond. They may -also discharge him if it ap- pears that the voyage is continued contrary to agreement, or that the ship is badly provisioned, or unsea worthy, or that he has been cruelly treated by the officers. In such cases the master is required to pay him one month's extra wages and to procure him , employment on some other vessel, or to provide for his return to the port of shipment or some other port agreed to by hini. They may also authorize the discharge of "a seaman for gross, misconduct, in which case he has no claim for extra wages. In case of the sale of a vessel abroad the master must pro,vide for the return of the crew to the United States. Consular officers may also provide at the expense of the Government for the re- turn to the United States of seamen disabled by injury or illness abroad ; they may also send destitute seamen home in American ships, which are bound to carry them for a compensation not to exceed ten dollars each, and the seamen so sent must work and obey as if originally shipped. If a? master discharges a seaman against his consent, and without good cause, in a foreign port, the seaman may recover full indemnity or compensation for his loss of time or expenses incurred by reason of such discharge. For the protection of the seamen the master is required on the termination of the voyage to render an account of wages due, with any deductions, to a U. S. Shipping Commissioner, and to pay the men their wages and give them a discharge in his presence. Seventh. As to the regulation of , punishment, flogging and all other forms of corporal punishment have been abolished and prohibited by law. Desertion, in maritime law, is distinguished from absence without leave, by the intention not to return. This intention is inferred froin a refusal to return, or from continued absence. If the man returns and is received, this is a con- PILOTS. 347 donation of the offense, and is a waiver of forfeiture. Desertion is punished by forfeiture of all or any part of the clothes or ef- fects the deserter leaves on board, and of aU. or any part of the wages or emoluments then earned. For neglecting or refusing without reasonable cause to join his vessel or proceed to sea, or for absence at any time without leave, not amounting to deser- tion, forfeiture of two days' pay or expenses incurred in hiring a substitute. For wilful disobedience to lawful command at sea, a seaman may be put in irons, and on arrival at port be pun- ished by forfeiture of wages or imprisonment, not exceeding three months, at the discretion of the court. Penalties are also imposed by the statute for other offenses. On the commission of any offense an entry must be made on the same day in the log bookj signed by the master and by the mate or one of the crew, and a copy furnished to the offender and read to him. Section XII. PILOTS. , An Act of Congress authorizes the several States to make their own pilotage laws, and questions under these laws are cognizable in the State courts. No one can act as pilot, and claim the compensation allowed by law for the service, unless duly appointed. And he should always have with him his commission, which should always designate the largest vessel he may pilot, or that which draws the most water. , If a pilot offers himself to a ship that has no pilot, and that is entering or leaving a harbor and has not already reached certain geo- graphical limits, the ship must pay him pilotage fees, whether his services are accepted or not. As soon as the pilot stands on deck, he has control of the ship. But it remains the mas- ter's duty and power, in case of obvious and certain disability, or dangerous ignorance or error, to disobey the pilot, and dis- possess him of his authority; but the master should interfere with the pilot only in extreme cases. If a ship neglect to take a pilot when it should and can take one, the owners will be answerable in damages to shippers or others for any loss which may be caused by such neglect or refusal. Pilots are themselves answerable for any damages resulting from their own negligence or default, and have been held strictly to this liability. 348 THE LAW OF SHIPPING. Section XIII. MATERIAL MEN. Maritime law calls by this name all persons employed to repair a ship or furnish her supplies. Such persons, and indeed all who work upon her, have a lien on the ship for their charges. Formerly this lien was limited by admiralty law to foreign ships ; but by a recent statute of the United States it is now provided that "any person furnishing repairs, supplies, or other neces- saries, including the use of dry dock or marine railway, to a- vessel, whether foreign or domestic, upon the order of the owner or owners of such vessel, or of a person by him or them author- ized, shall have a maritime lien on the vessel which may be .enforced by a proceeding in rem, and it shall not be necessary to jdlege or prove that credit was given to the vessel." And it is further provided that the managing owner, ship's husband, master, or any person, to whom the management of the vessel at the port of supply is intrusted shall be presumed to have au- thority from the owner to procure repairs, supplies and other necessaries for the vessel. Similar liens are given by statute in many of the States. (102.) Bill of Sale of Vessel. To all to whom these Presents shall comej Greeting : Know ye that (name of seller) of the {taum or city and county where he resides) . in the State of owner (if the seller' owns only a part of the vessel, here say what part) of the (ship, or what else it is) or vessel called the of the burden of 1 tons, or thereaBouts, for and in con- sideration of the sum of dollars, la'^ful money of the United States of America, to me (or us, if more, sellers than one) in hand paid, before the ensealing and delivery of these presents, by (name of the bwyser) the receipt whereof I (or vie) do hereby acknowledge, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said (name of the buyer) and his executors, administrators, and assigns, the whole (or name the part) of said or vessel, together with the masts; bowsprit, sails, boats, anchors, cables, tacklfe, apparel, and furniture, and all other necessaries thereunto -appertaining and Ijelonging. The certificate of the enrollment (or registry) of which said or vessel, is as follows: "Enrollment (or Registry). "No "In conformity to Title L., 'Eegulation of Vessels in Domestic Com- merce, ' (or, in case of registry. In pursuance of chapter one. Title XLVIII, COMMERCIAL FORMS. 349 'Regulation of Commeree and Navigation') of the Revised Statutes -of the United States, (name, occupation and place of abode of owner) having taken and subscribed the oath required by law, and having sworn that he (or if more than one owner 'together with,' giving name, occupation, place of abode and proportion of each owner) is (or are) a citizen (or citi- zens) of the United States, and sole owner (or owners) of the vessel called , of (name of port), whereof is at present master, and is a citizen of the United States, and (name and office of person by whom she was surveyed or measwed) having certified that the said vessel has decks, and masts, and that her length is feet, her breadth feet, her depth feet, and that she measures tons; that she is (kind of. vessel, together with her" build), and that she has (or has not) a gallery or head. "And the said (owner or master by whom certificate of measwrement was countersigned) having agreed to the description and admeasurement above specified, and sufficient security having been given in conformity with the terms of the said title, the said has been duly enrolled (or regis- tered) at the port of "Given under my hand and seal of office, at the port of this day of in the year one thousand nine hundred and Collector." To Have and to Hold the said or vessel, and appurtenances thereunto belonging, to him (or them), the said (name of the buyer) and his (or their) executors, administrators, and assigns, to the sole and only proper use, benefit, and behoof of him (or them), the said (name of the buyer) and hig (or their) executors, administrators, and assigns forever; and I (or we) the said (name of the seller) have and by these presents do promise, covenant, and agree, for myself (or our- selves) and my (or our) heirs, executors, administrators, and assigns, to and with the said (name of buyer) and with his (or their) heirs, executors, administrators, and assigns, to warrant and defend the said : or vessel, and all the other before-mentioned appurtenances, against the lawful claims and demands of all and every person or persons whom- soever, and that I (or we) have good right and authority to sell and dispose of the same in manner aforesaid. In Testimony Whereof, The said has hereunto set his hand and seal, this- , day of (Signature.) (Seal.) Sealed and Belvvered m the Presence of State op . County. Y^' I, a Notary Public in and for the County of and State of , do hereby certify, that personally known to 350 THE LAW OF SHIPPING. me as the same person whose name is subscribed to the annexed instru- ment of writing, appeared before me this day in person, and aeknowledged that he signed, sealed, and delivered. the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. Given under my hand and notarial seal, this day of _ . A.D. 19 (Seal.) Notary Public. (103.) Mortgage of a Vessel. Know all Men hy these Presents, That I (or we, giving the names and residence of all the mortgagors) am (or are) held and firmly bound unto (the name and residence of the mortgagee) in the just and full sum of dollars, lawful money of the United States of America, to be paid to the said ! or his (or their) executors, administrators, or assigns; for which payment well and truly to be made, I bind myself, my heirs, executors, and administrators firmly by these presents. Dated at this day of in the year one thousand nine hundred and Whereas, (name of the mortgagee) has this day lent and ad- vanced unto the said (name of the mortgagor) the sum of dollars on . the body, tackle, and appurtenances of the or vessel called the of the burden of tons, or thereabouts; the said (name of the mortgagor) being the (owner) of the same. Xow the Condition of this Obligation is such. That if the said (iiame of the mortgagor) shall pay or cause to be paid to the said (name of the mortgagee) the sum of . dollars (the amount loaned), and interest thereon at the rate of per cent, per annum on or before the day of in the year 19 then this obligation to be void; otherwise, to remain in full force and virtue. And in consideration of and as security for said loan as aforesaid, the said (vessel, or ship, or steamer, as it may be) is by these presents assigned, pledged, mortgaged, set over, and conveyed to the' said heirs and assigns ; the certificate of the enrollment of which vessel is as follows, viz.: (Enrollment as im the previous form of a Bill of Sale of a Vessel.) It being mutually Understood and Agreed, That in ease the amount of said loan and interest, or any part thereof, according to the terms of these presents, shall remain due and unpaid to said (name of mortg County or , r^®" I, a {official title) in and for said county, in the State afore- said, do hereby certify that personally known to me as the same person whose name is subscribed to the annexed instrument, appeared before me this day in person, and acknowledged that he signed, sealed, and de- livered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth. And the said {the name of the wife) wife of the said having been by me examined, separate and apart, and out of the hearing of her husband, and the contents and meaning of the said instrument of writing having been by me fully made known and explained to her, and she also by me being fully informed of her rights under the Homestead Laws of this State, acknowledged that she had freely and voluntarily executed the same, and relinquished her dower to the lands and tenements therein mentioned, without compulsion of her said husband, and. that she does not wish to retract the same. Given under my hand and seal this day of , A. D. 19 {Signature.) {Seal.) (186.) Deed of a Corporation. This Indenture, Made this day of , A. D. 19 , by and between {name of the corporation), a corporation organized under the laws of the State of , and whose principal office is situated in , County of , and State of party of the first part, and {name and residence of the grantee), party of the second part, Witnesseth : That the said {name of the corporation), party of the first part, in consideration of the sum of dollars to it paid by the party of the second part, the receipt of which is hereby acknowledged, doth hereby grant, bargain, sell, and convey unto the said paity of the second part all and singular the premises hereinafter described, to wit: {here insert location and description of the premises), together with all the privi- leges and appurtenances thereto belonging. To Have and to Hold the said granted premises to him, the said party of the second part, and his heirs and assigns, to their own use and behoof forever. {Sere insert any covenant of warranty or other covenants which may he agreed upon heiween the parties, in the same form as in deeds between indi- viduals.) In Witness Whereof, the said {name of the corporation) hag caused this instrument to be subscribed in its name by , its president {or other officer authorized to make the conveyance) , thereunto duly authorized, and 494 DEEDS CONVEYING LAND. its corporate seal to be hereunto affixed this day and year fiist above written. ,. (name of the corporation) by , its President (or other officer.) Witnesses (corporate teal.) State op -, }''■ County op On this day of , A. D. 19 — , before me notary public (or other official), duly commissioned, and authorized to take acknowledgments of deeds in and for said county and State, personally appeared the above named , and acknowledged the foregoing instrument to be the free act and deed of the said (name of the corpo- ration), for the uses and purposes therein set forth. Witness my hand and notarial seal this ■- day of , A. D, 19_. , (Notarial seal.) Notary public (or other official). If the deed is made in pursuance of a vote of the corporation, or of its board of directors or other governing body, a copy of such vote, certified by the recording ofBcer of , the corporation in substantially the following form, should be appended to the deed: I, , , secretary of the (name of the corporation), hereby certify that at a meeting of said corporation (or of its ioard of directors, etc.) held at on the day of 19 — , duly certified and called in accordance with the By-Laws, a quorum being present, the following vote was passed. "Voted — That , the president of the corporation, be authorized to execute, acknowledge, and deliver, in its name, and to seal with its corporate seal, a deed of the premises (brief description, sufficient for identification), to in such form as he may deem proper." A true copy from the records. Attest. '. , , Secretary. It is well to add also an affidavit in substantially the following form, as in some States such affidavit is essential: State op , Count? op }■ On this day of , A. D. 19 , before me, a notary public, duly commissioned in and for said county, and authorized by law to administer oaths and take acknowledgments of deeds, personally appeared the above named , who, being first duly sworn, doth depose and say, that he is the president (or other official) of the said (name of the corporation) ; that he is authorized to execute, acknowledge, and deliver deeds in the name of said corporation and on its behalf, that the said instru- ment was signed and sealed by him in behalf of said corporation, by its authority (or by aiMhority of its hoard of directors), and that the seal affixed to said instrument is the corporate seal of the said (name of the corporation) . (If the corporation has no seal, the affidavit should so recite.) FOEMS OF DEEDS. 495 In Witness Whereof I have hereunto set my hand and affixed my ofilcial seal, this - day of , A. D. 19 {Seal.) Notary Publio. (187.) Deed of Executor or Trustee under Power in a Will. Enow all Men by these Presents, That I, of , in the County of and State of J , as I am Executor of (or Trustee under) the last will and testament of deceased, late of in the County of and State of , which will was duly proved, allowed, and admitted to probate in the Probate Court for the County of and State of , on the day of , A. D. 19 , and my appointment as such executor (or trustee) duly confirmed by said court, do by virtue and in execution of the powers to me given in and by said will, and of every other power and authority me hereunto enabling, and in consideration of the sum of dollars to me paid by of in the County of and State of , the receipt of which is hereby acknowledged, give, grant, bargain, sell and convey to the said the following described real estate situated in , in the County of and State of , to wit: (description). To Have and to Hold the afore-granted premises, with all the rights, privileges and appurtenances to the same belonging, or in any way apper- taining, to the said , his heirs and assigns, to his and their use and behoof forever. In Witness Whereof, I, the said , have hereunto set my hand and seal as such executor (or trustee) this day of , A. D. 19 , (Execultor (or Trustee). ss. ' A. D. 19 Then personally appealed the above named _ , executor (or trustee) as aforesaid, and acknowledged the foregoing instrument to be his free act and deed, before me. > (188.) Deed of Executor by License of Court. Enow all Men by these Presents, That whereas (name of the executor) in the County of and State of , executor of the last will of , (name of the testator) late of deceased, by an order of the Court of Probate, held at within and for the County of — on the day of in the year one thou- sand nine hundred and was licensed and empowered to sell and pass deeds to convey certain real estate of the said deceased ; and whereas, I the said executor, having giver public notice of the intended sale, by causing notifications thereof to be published once a week, for three successive weeks prior to the time of sale, in the newspaper called the printed at and. having first taken the oath and given 496 DEEDS CONVEYING LAND. the 1)011(3 by law in sneh cases required, did on the day of in the year one thousand nine hundred and pursuant to the order and notice aforesaid, sell by public auction the real estate of the said de- ceased hereinafter described, to (name, residence, and occupation of 'the pv/rchaser) for the sum of dollars, he being the highest bidder therefor. Now, therefore, Know ye, That I, the said executor as afore- said, by viTtue of the power and authority in me vested as aforesaid, and in consideration of the aforesaid sum of ' dollars paid by the said {name of the purchaser') the receipt whereof is hereby acknowl- edged, do, by these presents, give, grant, sell, and convey unto the said {here describe the land or premises granted, iy metes and bounds, and contents or quantity, or boundary marks or moniunents, and refer to the' deed of the land to the testator, under which he held it). To Have and to Hold the afore-grantecl premises, with all the privileges and appurtenances to the same belonging, to him the said (name of purchaser) and his heirs and assigns, to his and their use and behoof forever. And I the said (name of executor) for myself and my heirs, executors, and administrators, do hereby covenant with the said (name of purchaser)- and his heirs and assigns, that in pursuance of the order aforesaid, I gave public notice of the said intended sale, in manner aforesaid, and that I took the oath and gave the bond by law required, previous to fixing on the time and place of sale. In Witness Whereof, I, the, said executor as aforesaid, have hereunto set, my hand and seal this day of in the year of OUT Lord one thousand nine hundred and (Signatwe.) (Seal.) Signed, Sealed, and Delivered in the Presence of Administrators and Guardians can convey lands only by license of the Probate Court. Their deeds are substantially the same in form as that above, substituting for "executor," etc., "administrator of the goods and estate of " or "guardian of 1_ and , minor -chil- dren of , ' ' as the case may be. (189.) Deed of Trustee in Bankruptcy. This Indenture, Made this day of , 19 — , between , of , Trustee of the estate and effects of , late of , a bankrupt, of the first part; and of , party of the second part, Witnesseth: • Whereas, a petition for adjudication in bankruptcy was on the (lay of filed in the District Court of the United States for the District of against (or by) the said , who was thereupon on the day of 19 , adjudged a bankrupt; and the said party of the first part was duly chosen and appointed TTUstee of the estate FOEMS OF DEEDS. 497 and effects of said bankrupt, and qualified as such Trustee by giving bond as required by law on the day of 19 — And Whereas, the parcel of land and premises hereinafter described, forming a part of the bankrupt's estate, were on the day of offered for sale at public auction by the said Trustee at , accord- ing to certain printed conditions of sale, at which sale the said {grantee) being the highest bidder, was declared the purchaser of the said premises at the sum of dollars. (Or, if the premises were sold at private sale, substitute for the latter part of the last clause: ' 'Save been by order of said court made the day of 19 , sold by private sale to the said party of the second part, for the sum of dollars. ' ') Now this Indenture Witnesseth: that in consideration of the sum of dollars paid by the said to the said Trustee, the receipt whereof is hereby acknowledged, the said , Trustee as aforesaid, doth hereby remise, release and forever quitclaim unto the said all that parcel of land, etc. To Have and to Hold, etc. {as in previous deeds). In Witness, etc. (190.) Deed of Beferee on Toreclosure of Mortgage. This IndentnTe, Made the day of in the year one thou- sand nine hundred and between {name and residence of the referee and grantor), a referee duly appointed as hereinafter mentioned, of the first part, and {name, residence, and occupation of the grantee) of the second part. Whereas, at a Term of the {name of the court) court, "on the day of one thousand nine hundred and it was among other things ordered and adjudged by the said court, in a. certain action then pending in the said court, between {names of plaintiff and defendant in the action) : That all and singular the mortgaged premises mentioned in the com- plaint in said action, and in said judgment described, or so much thereof as might be suf&cient to raise the amount due to the plaintiff for principal, interest, and costs in said action, and which might be sold separately, without material injury to the parties interested, be sold at public auction, according to the course and practice of said court, by or under the direc- tion of the said party of the first part as referee, thereby duly appointed for that purpose; that the said sale be made {here state the directions in the order of court as to the place and time of the sale) ; that the said referee give public notice of the time and place of such sale, according to the course and practice of said court, and that any of the parties in said action might become a purchaser or purchasers on such sale ; that the ^ said referee execute to the purchaser or purchasers of the said mortgaged' premises, or such part or parts thereof as should be sold, a good and suf-l ficient deed or deeds of conveyance for the same. 32 498 DEEDS CONVEYING LAND. And Whereas, the said referee, in pursuance of the said judgment of the said court, did on the day of one thousand nine hun- dred and sell at public auction at (tfte place of sale) the premises in the said judgment mentioned, due notice of the time and place of such sale being first given, agreeably to the said judgment; at which sale the premises hereinaf1;er described were struck off to the said party of the second part for the sum of dollars, that being the highest sum bidden for the same. Now this indentuTe witnesseth, that the said referee, the party of the first part to these presents, in order to carry into effect the sale so made by him as aforesaid, in pursuance of the judgment of said court, and in. conformity to the statute in such case made and provided, and also in consideration of the premises, and of the said sum of money so bidden as aforesaid, being first duly paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath bargained and sold, and by these presents doth grant and convey unto the said party of the second part, the premises aforesaid, situate, bounded, and described as follows (describe here the premises sold). To Have and to Hold all and singulai the premises above mentioned and described, and hereby conveyed, or intended so to be, unto the said party of the second part, his heirs and assigns, to and for his and their only proper use, benefit, and behoof. « In Witness Whereof, The said referee as aforesaid, hath here- unto set his hand and Seal, the day and year first above written. (Signature.) (Seal.) Sealed and Delivered in the Presence of (191.) Deed from Trustee under Trust Deed to Secure Fa^^ent of Notes. This Deed, Made and entered into this day of , A. D. nineteen hundred and by and between {names of trustee) party of the first part, and (name, residence, and occupation of grantee) party of the second part, Witnesseth: that whereas (name of the party who conveyed the estate to the trustee) by deed dated the day of , 19 , recorded in the Eecorder's office of County, State of in book page , "conveyed the property herein- after described in 'trust to said (name of trustee) to secure the payment of certain promissory notes in said deed described, and whereas (here describe tjie non-payment or other default which has authorized the sale by the trustee) and the party herein of the first part, at the request of the legal holder of said promissory notes acting in pursuance of the provisions of said deed of trust, and having first givei days' public notice of the time, terms, and place of sale, and of the property to be sold, by an advertisement inserted on the day of , A. D. , in the a daily newspaper printed in the city of and con- tinued to the day of sale (as will appear by the copy of said advertise- ment, and affidavit of publication thereof, hereto annexed as a part of this deed) did proceed to sell the property described in said deed at public rORMS OF DEEDS. 499 vendue to the highest bidder for cash at in the city of on the day of , 19 — , between the hours of ten o'clock in the morning and five o'clock in the afternoon of said day, when and where the same was struck off to {the name of the purchaser loho is the grantee) as the highest and last bidder therefor, at the price and sum of dollars, full payment whereof is hereby acknowledged; now, said party of the first part, by virtue of the proceedings aforesaid, and in consideration, of the sum of dollars to him in hand paid by said party of the second part, does by these presents bargain, sell, and convey to said (name of the graniee) all the right, title, and inter- est which by virtue of said trust deed, and the proceedings aforesaid, he may or can bargain, convey, or sell, in and to the property described in said deed of trust, to wit {here describe the land or premises granted in the same way in which thejf are described in the deed of trust under which the trustee acts). To Have and to Hold the said described premises unto said (name of the purchaser) and unto his heirs and assigns forever. In Witness Whereof, the said party of the first part has hereto set his hand and seal the day and year first herein above written. {Signature.) {Seal.) In Presence of (192.) Deed of Master in Chancery. Thi^ Indenture, Made this day of , A. D. 19 — , between {name of grantor) Master in Chancery, in and for the County of and State of , of the first part, and {name of grantee) of the second part, Witnesseth : That whereas, at the tterm- of the Court of the said County of and State of , in the year of our Lord A. D. 19 , in a certain suit and proceedings in chancery, pending in said court, wherein were complainants, and were defendants, to obtain a decree for the sale of the property hereinafter described, and for other relief, it was ordered, adjudged, and decreed by the court, that {here set forth the decree under which the sola is made) and Master in Chancery, in, and for the County of and State of was appointed to execute the said decree, and to make, execute, and deliver to the complainants a deed to the said premises as aforesaid, conveying to {the name, residence, and occupation of the grantees) all the interest and title of the defendant to said premises. Kow, therefore, Know all Men by this Deed, That I, Master in Chancery as aforesaid, in consideration of one dollar to me paid by the said party of the second part, the receipt whereof I acknowledge before the execution hereof, and by virtue of the decree aforesaid, have granted, bargained, and sold, and do hereby grant, bargain, and sell unto the said party of the second part, his heirs and assigns forever, the following- described real estate, lying in the County of and State of to wit {here describe the land or premises granted). 500 DEEDS CONVEYING LAND., To Have and to Hold the said premises, vrith all the appurtenances thereto belonging, unto the said party of the second part, his heirs and assigns forever. In Testimony Whereof, I, the said Master in Chancery, have hereto set my hand and seal the day and year first above written. '{Signature.) (Seal.) In Presence of (193.) Sheriff's Deed on Execution in use in some Western States. Whereas, (the name of the plaintiff in the suit in which the execution issued) did at the term, A. D. nineteen hundred and of the court for the County of in the State of , re- cover a judgment against (name of the defendant in that suit) for the sum of and costs of suit, upon which judgment and execution was issued, dated on the day of , A. D. nineteen hundred and directed to the sheriff of County, to execute, and by virtue of said execution (name of the sheriff) of then sheriff of said county, levied upon the lands hereinafter described, and the same were struck off and sold to (name of the purchaser at the sheriff's sale) he being the highest and best bidder therefor, and the time and place of the sale thereof having been duly advertised according to law. And the said , (nam,e of the pwrchaser) having duly assigned his certificate of purchase to (na/me of the grantee). Now therefore, Know all by this Deed, That I, (name of the sheriff) sheriff of^said County of in consideration of the premises, have granted, bargained, and sold, and do hereby convey to the said {name of the grantee) his heirs and assigns, the following described tract of land, to wit (here describe the land or premises granted). To Have and to Hold the said described premises, with all the appurte- nances thereto belonging, to the said (name of the grantee) and his heirs and assigns forever. Witness my hand and seal this day of in the year of our Iiord one thousand nine hundred and . In Presence of State of County op -,}■ (Signature.) (Seal.) Sheriff of County. I, clerk of the court of County, do certify that sheriff of County, personally known to me to be the real person whose name is subscribed to the within annexed deed, this day ac- knowledged before me that he executed/ the said deed, as such sheriff, voluntarily and freely, for the use and purposes therein set forth. Given under my hand, and the seal of said court, this day of , nineteen hundred and -. . (Signature.) Cleric. (Seal.) FORMS OF DEEDS. 5OI (194.) Sheriff's Deed of an Equity of Redemption. (Massachusetts Form.) Enow All Men by these Presents, That whereas I, A. B. a deputy sheriff for the County of in the Commonwealth of Massachusetts, having by virtue of a writ of execution which was issued upon a judgment re- covered in the Court for said County of , on the day of , A. D. 19 — , by V. W. against X. Y., seized and taken all the right which the said X. Y. had on the day of , A. D. 19 — , being the time when the same was attached on mesne process {or when the same was seized and taken as aforesaid) of redeeming the mortgaged premises hereinafter described; and having given the notices of the time and place of sale and caused to be published the advertisements thereof required by law, did on the day of , A. D. 19 , and in accordance with said notices and advertisements, make sale of the said right of redemption at pubUe auction to C. D. of , for the sum of _ , which amount was bid by the said C. D. and was the highest bid made therefor at said auction. Now Therefore, in consideration of said sum of to me paid by the said C. D., the receipt of which I hereby acknowledge, I do, as deputy sheriff as aforesaid, hereby grant, bargain, sell and convey unto the said C. D. all the Tight which the said X. Y. had at the aforesaid time of attachment, (or seizure) of redeeming a certain parcel of land, etc. (de- scribing it). To Have and to Hold the granted premises, with all the privileges and appurtenances thereto belonging, to the said C. D. and his heirs and assigns to their own use and behoof forever, subject however to be redeemed agreeably to the law in such ease made and provided. And I hereby covenant with the said grantee and his heirs and assigns that in making the said sale, and in everything concerning the same, I have complied with and observed the rules and requirements of the law in relation thereto; but I do not covenant. that the said X. Y. had any right, title or interest in the said estate at the time aforesaid. In Witness Whereof, etc. (195.) Mortgagee's Deed under a Power of Sale. This Indenture, Made this day of in the year of oui Lord one thousand nine hundred and , between (name and occu- pation of the mortgagee) of the County of and State of party of the first part, and (name and occupation of the grantee) of the County of and State of of the second part. Witnesseth: that whereas (name and occupation of the owner and mortgagor who gave to the mortgagee the power now exercised) of the County of and State of did, by a certain deed, dated the day of A. D. 19 , which deed is recorded in the Re- 502 DEEDS CONVEYING LAND. corder's office of the County of in the State of on the day of , A. D. 19__, in book of at page — ! , grant, sell, and convey to the said party of the first part all the premises hereinafter described, to secure the payment of a certain debt ((»• note, or bond) in said deed particularly mentioned, and upon certain terms in said deed particularly declared; and whereas default having been made in the payment of said debt (note or bond), the said" premises were, by said party of the first part, duly advertised for public sale at the door of the court-house (or other place) in the County of and State of on the day of A. D. 19 , in the manner prescribed by said deed, and were, upon the day and year and at the place last mentioned aforesaid, in pursuance of said notice, sold at public sale, and at said sale the said party of the second part was the highest and best bidder ' therefor, and bid for the tract first hereinafter named, the sum of dollars. Now Therefore, These presents witness: that the said party of the first part, in pursuance of the power and authority in him vested in and by the said deed, and in consideration of the sum of • dollais, to the said party of the first part paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath released and quitclaimed, and doth hereby convey, remise, release, and quitclaim to the said party of the second pait, his heirs and assigns forever, all the right, title, and interest, as well in law as in equity, which the said party of the first part hath acquired by virtue of the deed above mentioned of, in, and to all that certain tract, piece, or parcel of land situated in the (town or city) of County of . . and State of and described as follows, to wit, (here describe the premises). Together with all and singular the tenements, hereditaments, and appur- tenances thereunto belonging or in any wise appertaining, and the reversions, remainders, rents, issues,. and profits thereof; and also all the estate, right, title, interest, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and any and every part thereof, with the appurtenances, which the said party of the first part acquired by virtue of said deed: To Have and to Hold the aforesaid right, title, and interest of the said party of the first part, unto the said party of the second part, his heirs and assigns forever, as fully and absolutely as the said party of the first part can, by virtue of the power and authority in him by said deed vested, con- vey the same. In Witness Whereof, The party of the first part hath hereto set his hand and seal the day and year fiTst above written. (Signature of sellef.) (Seal.) Signed, Sealed, and Delivered in the Presence of FORMS OF DEEDS. 503 (196.) Deed under Power of Sale Mortgage. (Massachusetts Fobm.) Whereas, , of , in the County of , and Common- ■wealth of Massachusetts, did by mortgage deed, dated and recorded in Registry of Deeds, book , page , convey the real estate hereinafter described, to , of , and whereas in and by said mortgage deed the grantee therein named, his executors, administrators, or assigns were authorized and empowered, upon any default in the performance or observance of the conditions of said mortgage, to sell the said premises, with all improvements that might be thereon, at public auction at first publishing a notice, as therein required, and to convey the same by proper deed or deeds to the purchaser or purchasers absolutely and in fee simple; and whereas there has been such default, and notice has been published, and a sale has been made, as will more particu- larly appear in and by the afBdavit hereto subjoined: Now therefore Know all Men, That I, the said (^mortgagee) , by virtue and in execution of the power contained in said mortgage deed as aforesaid, and of every other power me hereto enabling, and in considera- tion of the sum of dollars to me paid by , of , the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey unto the said , his heirs and assigns forever, all and singular the premises conveyed by the aforesaid mortgage deed, namely: (descrip- tion as in mortgage deed). \ To Have and to Hold the same to the said and his heiTS and assigns, to their own use and behoof forever. In Witness Whereof, I the said hereunto set my hand and seal this day of , in the year one thousand nine hundred and Signed and Sealed in the Presence of Commonwealth OF Massachusetts. County of ., 19_. Then personally appeared the above named and acknowledged the foregoing instrument to be free act and deed; before me, . (Justice of the Peace.) Affidavit. I, , the mortgagee named in the foregoing deed, on oath depose and say that default has been made in the payment of the (principal or interest, or both), mentioned in the condition of the mortgage deed above referred to, the said (principal or etc.), when it became payable, not hav- ing been at that time, or at any other time, paid or tendered to any person authorized to receive the same ; and that, pursuant to the provisions of said mortgage and to the requirements of the statutes of the Commonwealth of Massachusetts, I published once a week for three successive weeks, to 504 DEEDS CONVEYING LAND. ■wit: on the {dates of pvJ>lication) , in the (name of newspaper), a news- paper published in aforesaid, a notice of which the following is a true copy (paste here a copy of the notice cut from the newspaper). And I further depose and say that pursuant to said notice, and at the time and place therein appointed, on the premises, while the said default continued, I sold the premises conveyed by said mortgage deed at public auction, by , a duly licensed auctioneer, to named in the foregoing deed, for the sum of dollars, which amount was bid by the said and was the highest bid made therefor at said auction, and I have this day delivered to said the foregoing deed of said mortgaged premises. Witness my hand this day of , A. D. 19 — (Signature.) Commonwealth of Massachusetts. 19- Then personally appeared the above named and made oath that the foregoing statement by subscribed is true; before me, (Justice of the Peace.) (197.) Seed of Mining Claim. This Indenture, Made the day of , in the year of our Lord one thousand nine hundred and , between (name, residence and occupation of grantor), the party of the first part, and -- (name, etc., of grantee), party of the second part, Witnesseth: that the said party of the first part, for and in consideration of the sum of __^^___ dollars of the United States of America, to him in hand paid by the said party of the second part, the receipt of which is hereby acknowl- edged, have granted, bargained, sold, remised, released, and forever quit- claimed, and by these presents do grant, bargain, sell, remise, release, and forever quitclaim unto the said party of the second part and to heirs and assigns (here describe the land or premises granted). Together with all the dips, spurs, and angles, and also all the. metals, ores, gold, and silver-bearing quartz rock, and earth therein; and all the rights, privileges, and franchises thereto incident, appendant, and appur- tenant, or therewith usually had and enjoyed; and also all and singular the tenements, hereditaments, and appurtenances thereto belonging, or in any wise appertaining, and the rents, issues, and profits thereof; and also all the estate, right, title, interest, property, possession, claim, and demand ■whatsoever, as well in law as in equity, of the said party of the first part; of, in, or to the said premises, and every part and parcel thereof, ■with the appurtenances. To Have and to Hold all and singular the said premises, together with the appurtenances and privileges thereto incident, unto the said party of the second part, heirs and assigns forever. In Witness Whereof, etc. FOEMS .OF DEEDS. 505 (198.) Trust Deed for the Benefit of a Wife, or some other Person. This Seed, Made and entered into this - day of nineteen hundred and by and between (name, residence, and occupation of the grantor) party of the first part, and {name, residence, and occupation of the trustee) party of the second part, and {name of the wife or any person, who is to have the benefit of the trust) party of the third part, Witnesseth : That the said party of the first part, in con- sideration of the sum of — dollars, to him in hand paid by the said party of the third part, the receipt of which is hereby acknowledged, and the further sum of one dollar, to him paid by the said party of the second part, the receipt of which is hereby also acknowledged, doth, by these pres- ents, give, grant, sell, transfer, convey, and assign unto the said party of the second part, the folowing described tract or parcel of land, that is to say {here describe the premises). To Have and to Hold the Same, With all the rights, privileges, and appurtenances thereto belonging, or in any wise appertaining, unto him, the said party of the second part, his heirs and assigns forever : In trust, how- ever, to and for the Sole and separate use, benefit, and behoof of : wife of {or the name of the son or daughter, or any other person, may be substituted for that of the wife) and the said party of the second part hereby covenants and agrees to and with the said the party of the third part, that he will suffer and permit hfer {or him), without let or molestation, to have, hold, use, occupy, and enjoy the aforesaid premises, with all the rents, issues, profits, and proceeds arising therefrom, whether from sale or lease for her own sole use and benefit, sepaiate and apart from her said husband, and wholly free from his control and interference, debts and liabilities, curtesy, and all other interests whatsoever; and that he will at any and all times hereafter, at the Tequest and direction of the said {name of the party of the third part) expressed in writing, signed by her {or him) or by her {or his) authority, bargain, sell, mortgage, convey, lease, rent, convey by deed of trust for any purpose, or otherwise dispose of said premises, or any part thereof, to do which full power is hereby given, and will pay over the rents, issues, profits, and proceeds thereof to the said party of the third part, and that he will, at the death of the said party of the thiid part, convey or dispose of the said premises, or such part thereof as may then be held by him under this deed, and all profits and proceeds thereof, in such manner, to such person or persons, and at such time or times, as the said party of the third part shall, by her {or his) last will and testament, or any other writing signed by her, or by her authority, direct or appoint; and in default of such ' appointment, that he will convey sacji premises to {here state what it is intended shall he done with the property at the death of "fhe party of the third part if he or she die intestate) . And the said party of the third part shall have power at any time hereafter, whenever she {or he) shall from any cause deem it necessary or expedient, by an instrument in writing under her {or his) hand and seal, and by her {or him) acknowledged, to nominate 506 DEEDS CONVENING LAND. and appoint a trustee or trustees, in the place and stead of the party of the second part above named; which trustee or trustees, or the survivor of them, or the heirs of such survivor, shall hold the said real estate upon the same teust as above recited; and upon the nomination and appointment of such new trustees, the estate in trust hereby vested in said party of the second part shall thereby be fully transferred and vested in the trustee or trustees so appointed by the said party of the third part. And said party of the first part hereby covenants to warrant and defend the title to the said real estate against the lawful claims of all persons whomsoever, to the said parties of the second and third parts, their heirs and assigns. And the said party of the second part covenants faithfully to perform and fulfil the trust herein created. In Testimony Whereof, etc. {Signatv/res.) (Sdals.) (198a.) Deed of Gift. Know all Men by these Presents, That I, ■ of , in con- sideration of the love and affection which I bear to , of , and in further consideration of the sum of one dollar to me paid by the said , the receipt of which is hereby acknowledged, do hereby give, grant, baTgain, sell and convey to the said , a certain parcel of land with the buildings thereon situated, in , in the County of _, and State of _, and bounded and described as follows, viz: To Have and to Hold, etc. (Contiwue as in the usual form of deed.) (199.) Acknowledgment of Grantor and Wife Identified, before Commis- sioner for another State. State op , . 1 County of , J ' Be it Remembered, That on the day of , one thousand nine hundred and , before me, : , commissioner for the State of (name of the State of which he is a commissioner) resident in the of , duly appointed, commissioned, and sworn to take acknowledg- ments and proof of deeds and other writings in the State of , to be used or lecorded in the said State of (name of the State of which he is commissioner) and to administer oaths and affirmations, and to take depo- sitions in said State of , to be used within the said State of : , appeared (name of grantor) and (name of wife of grantor) his wife, who are satisfactorily proven to me to be the individuals described in, and who executed the within deed, from said (name of gramtfir) and wife to (name of grantee) by the oath of (witnesses to their identity), who being by me duly cautioned and sworn, deposed that he knew them, the individuals, then present, to be the persons described in, and who executed the within deed (or, "both of whom are personally known to me to he the persons," etc.). The said and his wife, then and there acknowledged to rOEMS OF DEEDS. 507 me that they executed, the said deed for the purposes therein mentioned; and the said (name o/ the wife) being examined by me privily, and apart from her said husband, and the contents and effect of the said deed being by me first duly explained to her, did then and there acknowledge that she executed the same for the purposes therein mentioned, freely and without compulsion of or from her said husband. In. Witness Whereof, I have hereunto set my hand and affixed the seal of my office, on the day of in the year of our Lord one thousand nine hundred and (Signature.) (Seal.) DOMINION OF CANADA. The two Canadas were separated as to civil rights in 1791, and the French laws were allowed to remain in force in Lower Can- ada while the civil laws of England were declared to be in force in Upper Canada. Now both of these provinces, and with them nearly all the other British provinces in North America, are consolidated into the Dominion of Canada. But the same dis- tinction of law continues to a considerable extent. In the Province of Quebec, formerly Lower Canada, the principles, forms, and usages of the 'French law prevail largely ; while, in the other provinces, the common law of England prevails, as in the United States generally, and the forms and usages are sub- stantially similar in all of them. Forms of conveyancing in these latter provinces have been greatly simplified by recent statutes. Short forms have been substituted for those formerly in use, and in several of the provinces the Torrens system of registration and transfer has been adopted. We give forms of deeds, mortgages, and leases, from different provinces, which we believe will suffice for practice generally throughout, the Dominion. There are certain provisions, which, though not universal, are prevalent, and would always be safe and prudent. Deeda conveying land are now almost universally registered, and there should be a subscribing witness, who de- clares in an affidavit his name, residence, and occupation, and makes oath : 1. To the execution of the original, and of the dupli- cate, if there be one. 2. To the place and date of execution. 3. That he knew the parties to the instrument, or one or more of them, as the case may be. If the deed be made in Quebec, it should be executed before a judge, or prothonotary, or the clerk of the Circuit Court, or a copimissioner empowered to take affi- davits, or a notary public. 508 DEEDS CONVEYING LAND. PEOVINCE OF ALBEBTA. The Torrens system of land titles prevails, under which the following forms of transfer and proof aie used: (199a.) I, A. B. (^address and occupation), being registered owner of an estate in fee simple, subject, however, to such ineumbrances, liens and interests as are notified by memorandum underwritten (_or indorsed hereon), in all that certain tract of land situate in the Province of Alberta, being com- posed of {here state description of property transferred), do hereby, in consideration of the sum of dollars paid to me by C. D. (add>ress and occupation), the receipt of which sum I hereby acknowledge, transfer to the said C. D. all my estate and interest in the said piece of land. In Witness Whereof, I have hereunto set my hand and seal this day of , A. D. 19 Signed by the said A. B. in the presence of There must be annexed to the transfer, affidavits of grantor and grantee of value of land, buildings, etc. Canada, Province of , To wit: I, (full name, address and occupation of the witness), make oath and say: 1. That I was personally present and did see named in the within instrument, who is personally known to me to be the person named therein, duly sign, seal, and execute the same, for the purposes named therein. 2. That the same was executed at and that I am the subscribing witness thereto. 3. That I know the said : and he is in my belief of the full age of twenty-one years. Sworn to before me at this day of , 19 , Bequirements. Transfer must be executed in the presence of one witness, whose, affidavit taken as above before a notary public or other official is required before registration. BRITISH COLUMBIA. (200.) Statutory Form. This Indenture, Made in duplicate the day of in the year of our Lord in pursuance of the Real Property Conveyance Act between of , grantor, and of , grantee, Witnesseth: that in consideration of the sum of , lawful money of Canada now paid by said grantee to said grantor, the receipt of which is hereby acknowledged, the said grantor doth grant unto said grantee, and his heirs and assigns forever, all and singular that certain parcel of land and premises situate, lying and being, etc., ., together with all build- FORMS OF DEEDS. 509 ings, fixtures, commons, ways, profits, privileges, rights, easements and ap- purtenances to said hereditaments belonging, or with the same or any part thereof held or enjoyed or appurtenant thereto; and the estate, rights, title, interest and property, claims and demand of him the said grantor in, to, or upon the said premises. To Have and to Hold unto the said grantee and his heirs and assigns, to his and their sole and only use forever; subject nevertheless to the reservations, limitations, provisos and conditions expressed in the original grant thereof from the Crown. The said grantor covenants with the said grantee that he has the right to convey said land to said grantee notwithstanding any act of said grantor, and that said grantee shall have quiet possession of said land free fTom all incumbrances; and said grantor covenants with said grantee that he will execute such further assurances of said lands as may be requisite; and said grantor covenants with said grantee that he has done no act to in- cumber said land; and said grantor releases to said grantee all his claims upon said lands. In Witness Whereof, etc. (201.) Certificate of Acknowledgment. I hereby certify that , personally known to me (or proved by the evidence on oath of ), appeared before me and acknowledged to me that he is the person mentioned in the annexed instrument, as the maker thereof, and whose name is subscribed thereto as party, that he knows the contents thereof, and that he executed the same voluntarily, and is of the full age of twenty-one years. In Testimony Whereof, I have hereunto set my hand and seal of office at this day of , in the year of our Lord one thou- sand nine hundred and . (202.) Certificate for Married Woman. I hereby certify that , personally known to me to be the vfife of _, appeared before me, and being first made acquainted with the contents of the annexed instrument, and the nature and effect thereof, acknowledged on examination, and apart from and out of hearing of her said husband, that she is the person mentioned in such instrument as the maker thereof, and whose name is subscribed thereto as party, that she knows the contents and understands the nature and effect thereof, that she executed the same voluntarily, without fear or compulsion or undue influ- ence of her said husband, that she is of full age and competent understand- ing, and does not wish to retract the execution of the said instrument. Bequirements. Deeds should be under seal and must be attested by one witness. There is neither dower nor curtesy in lands conveyed in lifetime of husband or •wife. 510 DEEDS CONYEYING LAND. PROVINCE OE MANITOBA. " For Forms of deeds and proof required for registration, see Ontabio. The Torrens system of land titles is also in force in Manitoba. The form of transfer and proof for registration of lands Tegistered under this system are substantially the same as those of the Province of Alberta. There is neither dower nor cuTtesy in this Province. PROVINCE OF NEW BRUNSWICK. (203.) Warranty Deed. This Indenture, Made this day of , A. D. 19 , between , of , hereinafter called the grantor, of the one part; and , of , hereinafter called the grantee, of the other partj Wit- nesseth that the grantor, in consideration of dollars to him paid by the grantee, doth hereby grant, bargain and sell unto the grantee, his heirs and assigns, all (description of premises), together with all appurte- nances thereto, and all interest therein of the grantor. To Have and to Hold the same unto the grantee and his heirs and assigns, to the use of the grantee and his heirs and assigns forever. And the said grantor, for himself and his heirs, executors and administrators, doth cove- nant to and with the said grantee, his heirs and assigns, that he is lawfully seized of the before granted and bargained premises, and has good right to bargain and sell the same in manner and form as before written, and that he will' warrant and forever defend the same against the lawful claims and demands of all persons whomsoever. In Witness Whereof, the grantor has hereunto set Ms hand and seal the day and year- first above written. Signed, Sealed, and Delivered in Presence of Province op New Brunswick, County ov ; VSB. Be it Remembered, That on the day of in the year of our Lord one thousand nine hundred a-nd before me (name and official title) personally came and appeared the grantor within named, and acknowledged that he executed the foregoing deed freely and voluntarily for the uses and purposes therein contained. And the said wife of the said having been by me ex- amined separate and apart from her said husband, acknowledged that she executed the same freely and voluntarily, without any fear, threat or com- pulsion of, from, or by her said husband. Bequirements. Deeds must be under seal, acknowledged, or proved by the oath of a subscribing witness and registered. Dower and curtesy as at common law, but no dower in wild or timber lands. FOKMS OF DEEDS. 511 COLONT or iSTEWFOUNDLAND. (204.) Deed. This Indenture, Made the day of , 19 , between , of , hereinafter called the vendor, of the one part, and , of , hereinafter called the puTchaser, of the other part. Witnesseth: That in consideration of the sum of paid by the purchaser to the vendor, the receipt whereof is hereby acknowledged, the vendor as beneficial owner hereby grants to the purchaser aU that {description of premises). To hold unto the puTChaser, his heirs and as- signs. In Witness Whereof, etc. Signed, Sealed, and Delivered in Presence of Kequirements. Deeds must be acknowledged under oath by all granting parties, or proved on the oath of a subscribing witness. There is no right of dower. PEiOVINCE OF NOVA SCOTIA. For Statutory Short Form of Deed, see Ontario. Bequirements. Deeds may be proved for record by the acknowledgment under oath by the grantor of the execution thereof, or by the oath of a subscribing wit- ness that the parties executed the same in his presence. Deeds and leases for more than three years, must be registered. A married woman must acknowledge separate and apart from her husband that the deed is her free act and deed, and was executed freely and voluntarily without fear, threat or compulsion of, from, or by her husband. Dower as at common law, except in unimproved lands; but no curtesy. PROVINCE OF ONTARIO. (205.) Warranty Deed with Release of Dower. This Indenture, Made C*^ duplicate) the day of one thousand nine hundred and , in pursuance of the Short Forms of Conveyances Act between {name, residence and occupation of grantor) hereinafter called the grantor, together with his wife, and 1 {name, residence and occupation of grantee) hereinafter called the grantee, Witnesseth, That in consideration of dollars of lawful money of Canada, now paid by the said grantee to the said grantor (the receipt whereof is hereby by him acknowledged), he the said grantor doth grant unto the said grantee, his heirs and assigns forever, in fee simple, all and singular that certain parcel of tract of land and premises situate, lying, and being {here insert the description of the premises conveyed). 512 DEEDS CONVEYING LAND. To Have and to Hold unto the said grantee, his heirs and assigns, to and for his and their sole and only use forever; subject, nevertheless, to the reservations, limitations, provisos, and conditions expressed in the original grant thereof from the Crown. The said grantor covenants with the said grantee that he has the right to convey the said lands to the said grantee notwithstanding any act of the said grantor. And that the said grantee shall have quiet possession of the said lands, free from all incumbrances. And the said grantor covenants with the said grantee that he will exe- cute such further assurances of the said lands as may be requisite. And the said grantor covenants with the said grantee that he has done no act to encumber the said lands. And the said grantor releases to the said grantee all his claims upon said lands. And , wife of the said grantor, hereby bars her dower in the said lands. In Witness Whereof, The said parties hereto have hereunto set their hands and seals. Signed, Sealed, and Delivered in the Presence of County of : to wit : I, , of the , in the County of , make oath and say: 1. That I was personally present and did see the within instrament and duplicate thereof duly signed, sealed, and executed by all the parties thereto. 2. That the said instrument and duplicate were executed at 3. That I, know the said parties. 4. That I am a sub- scribing witness to the said instrument and duplicate. Sworn before me at , in the County of , this day of in the year of our Lord, 19 , A Commissioner for talcing Affidavits, etc. (or Notary FubUo.) Bequirements. To entitle a deed to registration in Ontario, it must 3. And for further security the said mortgagor doth hereby for himself and his af oresaids covenant and agree to and with the said mortgagee and his aforesaids, to forthwith insure and keep insured during the continuance of this security at his or their own cost and expense, against loss or damage by fire, the buildings now or hereafter erected on the said premises for the benefit of the said mortgagee or his aforesaids so expressed in the body of such policy or policies, or by endorsement thereon, in a sum not less than in some reputable fire insurance office or offices approved of by the said mortgagee or aforesaids, and forthwith deliver same and all renewal receipts therefor to him or them. If the said mortgagor or his aforesaids neglect or decline to insure or keep insured as aforesaid, or de- liver said policy or policies and renewal receipts as aforesaid, the said mort- gagee or his aforesaids, or any of them, may effect and continue such insur- ance and pay the premiums therefor and add same to the sum hereby se- cured, which, with interest at the rate aforesaid, shall be repayable on de- mand, and until payment vnth interest as aforesaid shall be a further charge hereunder. In case of loss or damage by fire the insurance moneys to be received shall be applied either towards the payment of the moneys hereby secured, whether due or not, or towards repairing the damages of said fiire, or part one way and part the other, at the option of the said mortgagee or his aforesaids. 4. That when used herein the word "mortgagor" shall mean and include the said , and his heirs, executors, administrators and assigns, and the word "mortgagee" shall mean and include the said , and his executors, administrators and assigns. In Witness Whereof, the said and have hereunto set their hands and seals the day of , A. D. 19 — Signed, Sealed and Delivered in presence of rOEMS OF MORTGAGES. 573 Peovince or New Bbuijswiok, "i County or J*** On the day of , A. D. 19 , at in the said Coun- ty of before me (name and official title) peTSonally came and ap- peared Grantor within named, and acknowledged that he executed the foregoing instrument for the use and purposes therein mentioned. And the said , wife of the said , being by me then and there examined separate and apart from her said husband, acknowledged that she executed the same freely and voluntarily and without any fear, threat or compulsion of, from or by her said husband. In Testimony Whereof, I have hereunto set my hand and Seal at the day and year last aforesaid. NoTABT Public. (or other official.) (271.) Mortgage in Use in the Province of Manitoba. This Indenture, Made in duplicate the day of , one thou- sand nine hundred and , in puTsuance of the act respecting short forms of indentures: Between of , hereinafter called the "mortgagor" of the first part; and , of , hereinafter called the "mortgagee" of the second part; whereas the mortgagor is seized of and entitled to the legal and equitable estate in fee simple in possession in his own right in and to the lands hereinafter mentioned and has so repre- sented to the mortgagee and the mortgagee relying thereon, has agreed to lend to the mortgagor the amount hereinafter mentioned upon the security of the said estate. Now therefore this Indenture Witnesseth, That in consideration of the sum of dollars, now paid by the mortgagee to the mortgagor (the receipt whereof is hereby by him acknowledged) the mortgagor doth grant and mortgage unto the mortgagee, his and assigns forever, aU and singular the lands following, that is to say: , (here describe the mortgaged premises). Provided this mortgage to be void on payment of the sum of dollars of lawful money of Canada, with interest at per centum per annum, and compound interest as hereinafter provided; the whole thereof in gold coin, if demanded, as follows : (Here specify the time of payment or the time of payment of each instalment, if payable in in- stalments), with interest at the rate aforesaid, to be paid half-yearly, on each day of and after the date hereof on so much principal money hereby secured as shall from time to time remain unpaid till the whole of the principal money and interest is paid, whether before or after the same becomes due ; but after default interest at the rate aforesaid shall accrue and be payable from day to day; and taxes and performance of statute labor. The first payment of interest to be made on the day of , A. D. 19 And it is further agreed that on default in payment of any instalment of interest, such interest shall at once become principal and bear interest at the 574 MORTGAGES OF LAND. rate aforesaid, which interest shall be payable from day to day a,nd shall itself bear interest at the rate aforesaid if not paid prior to the next gale day, it being agreed that all interest, as well that upon principal as upon interest, is to be compounded at each day mentioned for payment of interest. And it is further agreed that the taking of a judgment or judgments on any of the covenants herein contained shall not operate as a merger of said covenants or affect the mortgagee's right to interest at the rate and times afoiesaid. Provided, That in the event of non-payment of the said principal, or any part thereof, at the times the same falls due under the terms of this mort- gage, it is agreed that the mortgagee or his assigns shall not be required to accept payment of said principal moneys without receiving six mouths' previous notice in writing, or without being paid a bonus equal to six months' interest iii advance on the principal money so in default. The mortgagor covenants with the mortgagee that the mortgagor will pay the mortgage money and interest, and observe the above proviso; that the mortgagor has a good title in fee simple to the said lands ; and that on default the mortgagee shall have quiet possession of the said lands free from all encumbrances; and that he has the right to convey the said lands to the mortgagee; and that the mortgagor will execute such further assur- ance of the said lands as may be requisite; and that the mortgagor has done no act to encumber the said lands; and that the mortgagor will insure the buildings on the said lands to the amount of their full insuTable value, and this covenant to insure is to apply to all buildings which are now or may hereafter be erected on the said lands. Provided, That the mortgagee may himself efEect such insurance without any further consent of the mortgagor. It is also hereby agreed that all moneys hereby Teceived by virtue of any policy or policies may, at the option of the mortgagee either be forthwith applied on suspense account, or in or towards substantially rebuilding, rein- stating and repairing the said premises, or in or towards the payment of the last installment of principal falling due under and by virtue of these pres- ents, and, in case of a surplus, in or towards payment of the, instalment next preceding in point of time of payment, and so on until the whole of the principal hereunder shall be paid, and in case of surplus then in or towards payment of the interest; or may be paid over in whole or in part to the mortgagor or his assigns and in such ease shall not be credited on the mort- gage account. And the mortgagor doth Telease to the mortgagee all his claims upon said land subject to the said proviso; provided that on default of payment of any portion of the moneys hereby secured, the whole of the moneys hereby secured shall, at the option of the mortgagee, become payable, and that all subsequent interest shall fall due and be payable from day to day. And for the purpose of better securing the punctual payment of the in- terest on the said principal sum the mortgagor doth hereby attorn tenant to the mortgagee for the said lands at a yearly rental equivalent, to the annual interest secured hereby,, to be paid half-yearly on each day of of and _, the legal relation of landlord and tenant being FOEMS OF MORTGAGES. 575 hereby constituted between the mortgagee and mortgagor. Provided, also, that the mortgagee maj at any time after default in payment hereunder enter into and upon the said lands or any part thereof and determine the tenancy hereby created without giving any notice to quit, but it is agreed that neither the existence of this clause or anything done by virtue thereof shall render the mortgagee mortgagee in possession so as to be accountable for any moneys except those actually received. And further, that if default shall be made in payment of any part of the said principal at any day or time hereinbefore limited for the payment thereof, it shall and may be lawful for the mortgagee, and the mortgagor doth hereby grant full power and license to the mortgagee to enter, seize and distrain upon any goods upon the said, lands or any part thereof, and by distress warrant to recover by way of rent reserved as in the case of a de- mise of the said lands, as much principal as shall from time to time be or remain in arrear or unpaid, together with all costs, charges and expenses at- tending such levy or distress as in like cases of distiess for rent. Provided, That the mortgagee on default of payment for one calendar month, may on one week's notice, enter on and lease or sell the said lands. Provided, also, that should default be continued for two months, the mort- gagee shall, without giving any notice, be entitled to all powers, rights and privileges to which, under the proviso immediately next preceding, he would be entitled if the notice therein mentioned were given. The mortgagee may lease or sell as aforesaid without entering into possession of the said lands. When under the terms hereof a notice is necessary, such notice may be effectually given either by leaving the same with a grown up person on the said lands, if occupied or by placing it thereon or on any part thereof, if unoccupied, or, at the option of the mortgagee by publishing the same once in some newspaper published in the Province of Manitoba, and shall be sufBLcient though not addressed to any person or persons by name or designa- tion and notvrithstanding any person or persons to be affected thereby may be unknown, unascertained, or under disability, and such notice shall be suffi- cient though not otherwise addressed than ' ' to whom it may concern. ' ' And that the mortgagee or his assigns may sell any of the said lands on such terms as to credit or part cash and part crfedit and otherwise as shall appear to them most advantageous, and for such prices as can reasonably be ob- tained, and in event of a sale on credit, or for part cash and part credit the mortgagee not to be accountable for or charged with any moneys until actually received, and that sales may be made from time to time of portions of the said lands to satisfy interest or parts of the principal overdue, leav- ing the principal or balance thereof to run at interest payable as aforesaid, and may make any stipulations as to title or evidence, or commencement of title, or otherwise as he shall deem proper. And may buy in or rescind, or vary any contract for sale of any of the said lands, and resell without being accountable for loss occasioned thereby. Arid for any of the said purposes Biay make and execute all agreements, assurances and conveyances they shall think fit. And that the purchaser at any sale hereunder shall not be bound to see to the propriety or regularity thereof. . And that no want of notice or of publication when required hereby, or other impropriety or irregularity, 576 MORTGAGES OF LAND. shall invalidate any sale or lease hereunder, or purporting to be made here- under, but the vendor alone shall be responsible, and the above powers, to- gether with all other powers in this mortgage contained, may be exercised by assigns of the mortgagee, and against the heirs, executors, administrators and assigns of the mortgagor. It is also agreed between the mortgagor and the mortgagee, that the mort- gagee may pay all taxes, rates or levies which are now or may hereafter be levied, charged or imposed against said lands, and any levy or mortgage tax or income tax imposed or that may be imposed on this mortgage or on the mortgagee in respect of this mortgage or the moneys hereby secured or in respect of said lands, and may also pay any liens, charges or encumbrances which may exist on said lands at any time during the existence o£ this se- curity, and any moneys for insurance against damage by fire, tempest, light- ning or for hail insurance of crops on said lands, and may also pay costs and charges of and incidental to bringing the said lands under the act en- titled "The Real Property Act," and any amendment thereto, or any act in substitution thereof, and all sums so paid, together with all costs, charges and expenses which may be incurred in the taking, recovering and keeping possession of said lands or inspecting the same and generally in any other proceedings taken to realize the moneys hereby secured or perfecting the title to the said lands, shall be a charge upon the mortgaged property in favor of the mortgagee and shall be payable forthwith to the mortgagee or assigns, with interest at the rate of eight per centum per annum till paid, and in default of payment thereof the whole sum hereby secured shall, at the option of the mortgagee, immediately become due and payable, and the power of sale hereby given shall be exercisable in addition to all other remedies. And the mortgagor doth hereby agree to pay to the mortgagee or assigns any sum or sums of money which, in addition to the said principal sum hereby secured, the mortgagee may pay for the purpose of satisfying and paying off any balance of purchase price, mortgage, lien, charge, encum- brance or other claim that may be outstanding against the property in order to perfect the title to the said lands or any part thereof and make this mort- gage a first charge and encumbrance thereon, (the propriety of paying out any said further sum to be a matter upon which the decision of the mortgagee shall be absolute and final), any such sum or sums so paid to be repaid to the mortgagee by the mortgagor at the time fixed hereby for the next pay- ment of interest maturing under this mortgage after the time of such pay- ment, with interest at the rate of eight percentum per annum, and in de- fault, the power of sale hereby given shall be exercisable in addition to all other remedies. In the event of the money hereby advanced, or any part thereof, being applied to the payment of any charge or encumbrance, the mortgagee shall stand in the position and be entitled to all the equities of the person or persons so paid off, whether any such charge or encumbrance have or have not been discharged. And that the mortgagee may at his discretion at all times release any part or parts of the said lands, or any other security for the moneys hereby secured, either with or without any consideration therefor, and without be^ng accountable for the value thereof or for any moneys except those ' POEMS or MORTGAGES. 577 actually received by him, and without thereby releasing any other of the said lands or any of the covenants herein contained. And. that upon the mortgagor, or those claiming under him committing any act of waste upon said lands, or doing any other thing by which the value of the said lands shall or may be diminished, or failing to remain in the actual personal possession of the said lands, or making default as to any of the covenants or provisions herein contained the principal and interest hereby secuied shall, at the option of the mortgagee, forthwith become due and payable. And it, is hereby declared and agreed that all erections, machinery, plant, buildings and improvements, Sxei or otherwise, now or hereafter put upon the said premises, are and shall, immediately upon being put on the said, premises, become "fixtures and a part of the Tcalty and form a part of this security. The mortgagor agrees that neither the execution or registration of this mortgage, nor the advance in part of the moneys hereby secured shall bind the mortgagee to advance the said moneys or any unadvanced portion thereof. It also agreed that if the sum hereby secured, or any part thereof, shall not be advanced to the mortgagor at the date hereof, the mortgagee may advance the same in one or more sums to or on behalf of the mortgagor at any future date or dates, and the amount of such advances when so made shall be secured hereby and repayable with interest as above provided, and shall be considered and treated as having been so secured and advanced as at the date hereof. And the mortgagor covenants with the mortgagee or his assigns that the mortgagee or his assigns at such time or times as they may deem necessary, and without the concuTrence of any person, may make such arrangements for the repairing, finishing and putting in order any building or improve- ments on the mortgage premises, and for inspecting, taking care of, leasing, collecting the rents of and managing generally the mortgaged property as th.ey may deem expedient, and all reasonable expenses, costs or charges, in- cluding allowance for the time and service of any officer of mortgagee or other person appointed for any of the above purposes shall be forthwith payable to the mortgagee or his assigns, and shall be a chajrge upon the mortgaged property and shall bear interest at the rate of eight per centum per annum until paid. Provided also' that upon and after default in payment of any of the moneys hereby secured or payable under these presents from time to time, the mortgagee shall be entitled to send an inspector or agent to inspect and report upon the ~value, state and condition of the mortgaged land at the Inortgagor 's expense, and all expenses incurred and paid in so doing, together with all costs and charges between solicitor and client which the mortgagee may incuT or pay in enforcing or attempting to enforce all or any of the remedies and powers given hereby or subsisting for the recovery of the moneys hereby, secured, or any part thereof, whether the proceedings taken prove abortive or not, and of, in and about taking, Tecovering and keeping or attempting to procure possession of the said lands, or any part thereof, shall form and be a charge upon the said lands, and payable forthwith to 37 578 MORTGAGES OF LAND. the mortgagee, and shall bear interest at the rate aforesaid fTom the time of payment of the same as upon principal money advanced upon the security of these presents. Provided also that all moneys; payments, costs, charges and expenses whatsoever, which are by these presents charged or to be charged or chargea- ble upon the said lands shall be considered as mortgage money and interest, and default in payment of the same or any part thereof from time to time shall be 'a breach of the covenant for payment of the mortgage moneys and interest herein contained and shall also entitle the mortgagee to exercise the power of sale and all other powers and remedies contained in these presents OT subsisting for recovery of the mortgage moneys and ihterest or any part thereof from time to time. It is further agreed that the heirs, executors, administrators and assigns of the respective parties are bound by the covenants and stipulations herein contained and that all covenants herein contained are to be construed as both joint and several. In Witness Whereof the said parties have hereunto set their hands and seals. Signed, Sealed and Delwered in the presence of (Having been first read over and explained.) Manitoba To Wit: I, , of the of in the province of Manitoba — (Oc- cupation) — ^make oath and say 1. That 1 was personally present and, did see the within instrument and duplicate duly signed; sealed and executed by each of the parties thereto. 2. That the said instrument and duplicate were executed at 3. That I know the said parties and am satisfied that is of the full age of twenty-one years. 4. That 1 am a subscribing witness to the said instrument and duplicate. Sworn before me at the , of in the Province of Manitoba, this day of in the year of our Lord 19 A Commissioner for talcing Affidavits in B. B., Etc. MISCELLANEOUS FORMS. (272.) A Promissory Note, to be Secured by Mortgage, 19- • years after date, for value received, I promise to pay to , dollars, with interest at the Tate of per cent, per annum, payable semi-annually. This note is secured by a deed of mortgage of even date herewith from . to to be recorded in Registry of Deeds. Wlitness. (Signature.) FOBMS or MORTGAGES. 579 (273.) Bond, to be Secured by a Mortgage. Know all Men ty these Presents, That I {name of obligor') of in the (Jounty of and State of ■ , am held, bound, and obliged unto {name of obligee) of in the County of and State of in thesu^ of {penalty-MSually twice as much as the actual debt) to be paid to the said {the obligee) his executors, administrators, or as- signs, and to this payment I hereby bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal, this day of in the year The Condition of the above obligation is such, that if I, the said {name of the obligor), or my heirs, executors, or administrators, shall pay or cause to be paid unto the said {name of the obligee) his heirs or assigns the sum of {here insert the amount of the debt or sum to be secured) on the . day of in the year , with interest at per cent., payable six months from the date hereof, and every six months afterwards, until the said sum is paid, then the above obligation shall be void and of no effect, and otherwise it shall remain in full force. And 1 further agree and covenant, that if any payment of interest be withheld, or delayed for days after such payment shall fall due, the said principal sum and aU arrearage of interest thereon, shall be and become due immediately on the expiration of days, at the option of the said {obligee) or his executors, administrators or assigns. Witness. {Signature and Seal.) This bond is secured by a deed of mortgage of even date, made by said __— ^_ to said and to be recorded in Begistry of Deeds. (274.) Assignment of Mortgage. — Massachusetts Form. Enow all Men by these Presents, That I {name, residence, and occupa- tion of the assignor) the mortgagee {or assignee of the mortgagee) named in a certain mortgage deed, given by {name, residence, and occupation of the mortgagor) to {name of mortgagee) to secure the payment of dollars, dated the day of in the year of our Lord nineteen hundred and , recorded in the registry of deeds for the County of lib. - fol. in consideration of the sum of dollars to me paid by {name, residence, and occupation of buyer and as- signee) the receipt whereof is hereby acknowledged, do hereby sell, assign, transfer, set over and convey unto said {name of assignee) and his heiis and assigns, said mortgage deed, the real estate thereby conveyed, and the promissory note, debt, and claim thereby secured, and the covenants therein contained. To Have and to Hold the aame to him the said {name of assignee) and his heirs and assigns, to his and their use and behoof forever; subject nevertheless to the conditions herein contained, and to Tedemption according to law. 580 MORTGAGES OP LAND. In Witness Whereof, I, the said have hereunto set my hand and seal this . day of in the year of our Lord nineteen hundred and {Signature.) (Seal.) Executed and Delivered in Presence of (275.) Assignment of Mortgage^ in use in Michigan. Know all Men by these Presents, That I (name, residence, and occupa- tion of assignor) of the first part, for and in consideration of the sum of lawful money of the United States of America, to me In hand paid by {name, residence, and occupation of assignee) of the second part, at or before the ensealing or delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer, and set over unto the said party of the second part, a certain indenture of mortgage, bearing date the day of , one thousand nine hun- dred and . , made by and between (iiere descHbe carefully the mort- gage assigned, giving the names of the parties and the description of the premises mortgaged, as described in the mortgage). And recorded in the, office of the Kegister of Deeds of the County of , and State of Michigan, in Liber of Mortgages, at page with all and singu- lar the premises therein mentioned and described, together with the {note, bond, or debt) or obligation therein also mentioned, and the moneys now due, or to become due, and the interest that may hereafter grow due thereon. To Have and to Hold the same unto the party of the second part, his heirs and assigns forever, subject only to the proviso in the said indenture of mortgage mentioned. And I do hereby authorize and appoint the said party of the second part, my true and lawful attorney, irrevocable, in my name, or otherwise, but at his proper costs and charges, to have, use^ and take all lawful ways and means for the recovery of the sum or sums of money now due and owing, or hereafter to become due and owing, upon the said note anil mortgage; and in case of payment, to give acquittance or other sufficient discharge, as fully as I might or could do if these presents were not made; and I do hereby for myself and my heirs, executors, and- administrators, covenant, promise, and agree to and with the said party of the second part, that there is due upon the said note and mortgage the sum of and that I have good right and lawful authority to grant, bar- gain, and sell the same in manner aforesaid. Signed, sealed and delivered the day of , 19 In Presence of {Signature.) (Seal.) The Illinois form is substantially the same as that of Michigan. The New York form also is similar, but does not include a description of the premises, otherwise than by reference to the mortgage deed — ^but does in- clude the date of record. FOEMS OF MORTGAGES. 581 (276.) Assignment of Bond and Mortgage with Warrant of Attorney. — New Jersey Form. Know all Men by these Presents,' That I of for and in consideration of the sum of dollars lawful money "of the United States of America, to me in hand paid by of at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred and set over, and by these presents do grant, bargain, sell, assign, transfer and set over, unto the said a certain indenture of mortgage, bearing date the day of , 19 , made by as mortgagor to me as mortgagee, and recorded in the office of the Register of Deeds for the county of in the State of New Jersey in book , page , and the mortgaged premises therein described, with the appurte- nances ; together with the bond or obligation in said indenture of mortgage mentioned, and thereby intended to be secured, and the warrant of attorney to confess judgment thereto annexed, and all moneys due and to grow due thereon. To have and to hold the same unto the said , his heirs, executors, administrators and assigns, to his and their proper use, benefit, and behoof; subject to the provision or condition of redemption in said in- denture of mortgage contained. In Witness, eic The Pennsylvania form is substantially the same as that above. (277.) Discharge of Mortgage. — Short Form. The Debt, secured by the mortgage made by , to , dated and Tecorded with ■. deeds, lib. f ol. has been paid to me by (name of mortgagor) and in consideration thereof I do discharge the mortgage and release the mortgaged premises to said {name of mortgagor) and his heirs. Witness my hand and seal , A. D. 19 . (Signature.) (Seal.) Executed and Delivered in Presence 6f (278.) Discharge of Mortgage. — ^Massachusetts Form. Xnow all Men by these Presents, That I the mortgagee named in (or the assignee of) a certain mortgage given by to dated the day of , A. D. 19 , and recorded with deeds. Book , page , do hereby acknowledge that I have re- ceived from , the mortgagor named in said mortgage, (or claiming to own the equity of redemption in the premises described in said mortgage) full payment and satisfaction of the same ; 'and in consideration 582 MORTGAGES OF LAND. thereof I do hereby cancel and discharge said mortgage, and release and quitclaim unto the said , and his heirs and assigns forever, the premises thereby conveyed. In Witness, etc. (279.) State of New York, County or Satisfaction of Mortgage, in use in New York. I do hereby Certify, That a. certain Indenture of Mortgage, bearing date the day of , one thousand nine hundred and made and executed by {name, residence, and occupation of mortgagor) on {give the day of the date of the mortgage) to {name, residence, and occupation of mortgagee) for the amount of and recorded in the office of County of in lib. of Mortgages, page on the day of in the year one thousand nine hundred and , at ^^ o 'clock, in the noon, is paid. And I do hereby consent that the same be discharged of Record. Dated the day of , 19 {Signature.) {Seal.) , In presence of (280.) Satisfaction of Mortgage, in use in Minnesota. Know all Men by these Presents, That I {or we) {name, residence, and occupation of assignee or assignees) do acknowledge full payment and satis- faction of a certain indenture of mortgage executed by to dated the day of , 19 , and recorded in the office of Register of Deeds for the County Of , State of Minnesota, on the J day of , 19 , in book of mortgages, page Said mortgage was given upon the following described real estate, situate in the County of and State of Minnesota, viz: {describe the land or premises mortgaged and released, substantially in the same way as they are described in the mortgage). If the mortgage has been assigned, the assignee must insert the following clause in brackets. [Which said mort- gage was on the day of , A. D. 19 , duly assigned and transferred by the said {name of the mortgagee) to {the name of the as- signee) by written assignment, which was on the day of , A. D. 19 , duly recorded in said office of Register of Deeds for the said County of in book of mortgages, page {here enumerate in a similar way any subsequent assignments of the m,ortgage so as to show that it is now in the hands of the releasor.)'\ And I do hereby authorize and require the Register of Deeds of the said County of to cancel and disehajTge the same of record in. his office. Witness my hand and seal, this day of , A. D. 19 — In Presence of {Signatures.) {Seals.) F0EM8 OF MQETGAGES. 583 (281.) Release and Quitclaim of Mortgage, as used in some Western States. Xnow all Men by these Presents, That I {name of mortgagee) of the County of and State of for and in consideration of one dollar, to me in hand paid, and for other good and valuable considerations, the receipt whereof is hereby confessed, do hereby grant, bargain, remise, convey, release, and quitclaim unto {name of assignee or releasee) of the County of and State of all the right, title, interest, claim, or demand whatsoever I may have acquired in, through, or by a certain in- denture or mortgage deed, bearing date the day of , A. D. 19! — , and recorded, in the recorder's office of County, in book — of , page , to the premises therein described, and which feaid deed was made to secure a certain promissory note {or bond) bearing even date with said deed, for the sum of dollars and cents. Witness my hand and seal this day of , A. D. 19 {Signature.) {Seal.) (282.) Release of Deed of Trust, in use in Colorado. Enow all Men hy these Presents, That whereas {name, residence, and oc- cupation of the mortgagor) of the County of in the State of Colo- rado, by his certain deed of trust, dated the day of , A. D. 19 , and duly Teoorded in the office of the County Clerk and Recorder of County, in the State of Colorado, on the day of , A. D. 19 , in book of said , County Records, on page conveyed to the undersigned {name, residence, and occupation of trustee in. the trust deed) of the County of in the State of Colo- rado, as trustee certain real estate in said deed of trust described, in trust to secure to the payment of a certain promissory note with interest, and all charges thereon, as in said deed of trust mentioned. And Whereas, The said has paid and fulJy satisfied said note to- -gether with all interest and charges thereon, according to its tenor; Xow, Therefore, At the request of the said as aforesaid, and in consideration of the premises, and in the further consideration of the sum of one dollar, to me in hand paid by the said the receipt whereof is hereby acknowledged, I trustee as aforesaid, do hereby remise, release, and forever quitclaim unto him, the said and his heirs and assigns forever, all the right, title, and interest which I have in and to the said real estate, as the trustee in said deed of trust mentioned; and more particularly described as follows, to wit: {describe the land or premises mortgaged and now released, as they are described in the trust deed -or mort- gage) situate, lying, and being in the County of and State of Colo- rado. To Have and to Hold the same, together with all and singular the privi- leges and appurtenances unto the said _ , his heirs and assigns for- 584 MOBTGAGES OF LAND. ever. And further, that the said trust deed is, by these presents, to be'con- sidered as fully and absolutely released, canceled, and forever discharged. Witness my hand and seal, this day of , A. D. 19 .. {Signature.) {Seal.) Signed, Sealed, and Delivered in the Presence of (283.) Belease of a Trust Deed Mortgage at the Request of the Creditor, in use in Virginia and West Virginia. This Seed, Made this day of in the yeay one thousand nine hundred and between {name, residence, and occupation of the trustee in the trust ^eed) of the first part, and {name, residence, and occur pation of the creditor in the trust deed) of of the second part, and {name, residence, and occupation of the mortgagor m the trust deed) of the third part. Whereas, The said in order to secure the said the pay- ment of the sum of did, by his deed bearing date on the day of , 19 , recorded in the office of the Clerk of County convey to the said , his heirs and assigns, certain estate described in the said deed as follows: {here describe the land or premises mortgaged and now released, in the same way as in the trust deed) and the said sum of money having been fully paid to the said he the said {creditor) has requested that the estate conveyed by the said deed of trust to the said in the said property hereinbefore mentioned and described, be now -released to him the said This deed, ■there- fore, witnesseth, that for and in consideration of the premises, as well as of the sum of five dollars, the said with the consent of the said {credi- tor) signified by his signing and sealing this deed, doth release to the said all his claim upon the said property. Witness the following signatures and seals. {Signatures of trustee and creditor.) {Seals.) (284.) Release of a Fart of the Mortgaged Premises. This Indenture, Made the day of in the year of out Lord one thousand nine hundred and between {name, residence, and occupation of the mortgagee and releasor) party of the first part, and {name, residence, and occupation of the mortgagor to whom the release is given) party of the second part. Whereas, The said party of the second part, by indentuTe of mortgage, bearing date the day of , one thousand nine hundred and , for the consideration therein mentioned, and to secure the payment of the money therein specified, did convey certain lands and tenements, of which the lands hereinafter described are part, unto the said party of the first part. POEMS OF M0ETGAGE8. 585 And Whereas, The said party of the first part, at the request of the said party of the second part, has agreed to gi^e up and surrender the lands hereinafter described unto the said party of the second part, and' to hold and retain the Tesidue of the mortgaged lands as security for the money remaining due on the said mortgage: Now this Indenture Witnesseth, That the said party of the first part, in pursuance of the said agreement, and in consideration of to him duly paid at the time of the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, released, quit- claimed, and set over, ^nd by these presents does grant, release, quitclaim, and set over, unto the said party of the second part, all that part of the said mortgaged land {here describe aocwateVy all that part of the mortgaged land which it is intended to release, distinguishing it from that which is re- tained). Together with the hfereditaments and appurtenances thereto belonging; and all the Tight, title, and interest of the said party of the, first part, of, in, and to the same, to the intent that the lands hereby conveyed may be dis- charged from the said mortgage, and that the rest of the lands in the said mortgage specified may remain to the said party of the first part as here- tofore. To have and to hold the lands and premises hereby released and conveyed, to the said party of the second part, and his heirs and assigns, to his and their only proper use, benefit, and behoof forever, free, clear, and discharged of and from all lien and claim, under and by virtue of the inden- ture of mortgage aforesaid. In Witness Whereof, The said party of the fiist part has hereunto set his hand and seal on the day of in the year Executed and Delivered in Presence of {Signature.) {Seal.) (285.) Partial Belease — Another Form. Know all Men, That I of , the mortgagee {or assignee of the mortgagee) named in a certain mortgage given by to , dated, etc., and recorded, etc., in consideration of the sum of to me paid by the said •■ , the receipt whereof is hereby acknowledged, do hereby remise, Tclease, and forever quitclaim unto the said , all the right, title, and interest which I acquired under the aforesaid mortgage in or to that portion of the- premises therein conveyed which is. described as follows, viz : To have and to hold the same to the said ^ and his heirs and assigns to their own use and behoof for- ever. But this Telease shall not in any way affect or impair my right to hold under the said tnortgage as security for the sum remaining due thereon, or to sell under the power of sale in said mortgage contained, all the remainder of the premises therein conveyed and not hereby released. In Witness Whereof, etc. 586 M0ETGAGB8 OF LAND. (286.) Seed Extending a litortgage. This Indenture, Made this day of, A. D. 19 , by and between {name, residence, and occupation of the mortgagee) the owner and holder of a certain promissory note {or tond) for the principal sum of dollars, given by {name of mortgagor) and secured by a mortgage of cer- tain real estate in in the County of , and State of dated day , A. D. 19. , and recorded in the Eegistry of Deeds for the County of lib. fol. party of the first part, and the said {name of mortgagor) party of the second part, Witnesseth, That the said parties, for themselves and their representa- tives, hereby mutually agree that the time for the payment of the principal of said note and mortgage debt shall be and the same is hereby extended for the term of yeais from the ; day of : , A. D. 19 , and that the same is to bear interest from said date at the rate of per cent, per annum, payable on the day of and the day of , in every year, until said principal sum shall be fully paid. And the said party of the second part hereby covenants and agrees that- he will not require the holders of said note and mortgage to receive pay- ment of said mortgage debt during said extended term ; that ha will punc- tually pay the interest now due, and to grow due thereon, at the times and at the rate aforesaid; that he will keep the mortgaged premises in good repair, and insured against fire, and the taxes thereon duly paid, according to the provisions of said mortgage, and that at the expiration of said ex- tended term he will pay the said mortgage debt, with all interest then due thereon. It is expressly understood and agreed that nothing herein contained shall be construed to impair the security of said party of the first part, or his executors, administrators, or assigns, under said mortgage, or to afl:ect or impair the lien on the real estate therein described which he has by virtue of said mortgage, nor affect or impair any rights or powers which he may have under the said note and mortgage for the recovery of the mortgage debt, with interest, in case of non-fulfillment of this agreement, or of any of the provisions hereof, by said party of the second part. In Witness Whereof, The said parties have hereunto set theii hands and seals the day and year first above written. {Signature of mortgagee.) {Seal.) {Signature of mortgagor.) {Seal.) Signed, Sealed, and Delivered in Presence of <287.) Certificate of Entry to Foreclose. We hereby Certify, That on the day of in the year one thousand nine hundred and we were present and saw {name of mortgagee or of his assignee or attorney) the mortgagee named ABSTEACT8, F0EECL08UEE, ETC. 537 in a certain mortgage given by to dated , A. D. 19 — , and recorded in Eegistry of Deeds, book , page — . , make an open, peaceable, and unopposed entry on the premises de- scribed in said mortgage, for the purpose, by him declared, of foreclosing said mortgage for breach of the condition thereof. {Signatures of witnesses.) State or . , "> COT^NTT OF , J^®' , 19 — . Then personally appeared the above-named and and made oath that the above certificate by them subscribed is true, - before me — Justice of the Peace. ABSTKACT OF STATE LAWS RELATING TO EORECLOSURE OF MORTGAGES. Alabama. — Mortgages usually contain a power of sale authorizing fore- closure without intervention of court. They may also be foreclosed by bill in equity. In either case two years aire allowed for redemption. Alaska. — ^Foreclosure is by action. Judgment is given for debt, costs and attorney's fees; mortgaged property is ordered sold and proceeds ap- plied to payment of judgment. Mortgagor may redeem within twelve months after confirmation of sale. Arizona. — ^Foreclosure in all cases by action, and sale of mortgaged prem- ises to satisfy judgment. Mortgagee may redeem within six months after sale. ; Arkansas. — Mortgagee must, before foreclosure, render itemized state- ment to mortgagor of amount due. If foreclosure is by sale under power in mortgage, property must be appraised and bring two thirds of appraised yalue. On second sale within one year property goes to highest bidder. In foreclosure by bill in equity there is no appraisal. In either case mortgagee can redeem within one year after sale. Suits to foreclose must be brought before debt is barred by limitation. Partial payments to operate as exten- sion of time must be noted on margin of record. California. — Mortgages are foreclosed by suit in equity, or by sale under power in mortgage or deed of trust. When debt is barred, mortgage also is barred. Mortgagee may redeem within twelve months. Eenewal or ex- tension of mortgage must be made witn same formalities as mortgage itself. Colorado. — Mortgages are usually in the form of trust deeds made to an officer called the "Public Trustee," and. foreclosed by him by sale under power in the deed. If made to any other trustee foreclosuie must be by suit. Mortgagee may redeem within six months, and judgment creditor within nine months. Connecticut. — Foreclosure by proceedings in equity. Court may fix time for redemption (usually two to six months), and if debt is not paid within that time property belongs absolutely to mortgagee; or court may, on mo- tion of either party, order a sale. 588 MORTGAGES OF LAND. Delaware. — Mortgages are generally accompanied by bonds instead of notes, and made without power of sale. JToreclosure by action, and sale on execution. There is no redemption. District of Columbia. — Trust deeds with power of sale usually take the place of mortgages. They are foreclosed by sale under the power, and tliere is no redemption. Florida. — Mortgages are foreclosed by biU in equity and sale. There is no redemption. Georgia. — Mortgages and trust deeds to secure loans are foreclosed by .proceedings in equity and sale, or by sale under power. There is no redemp- tion. Wife's dower in lands owned by husband at his death takes prece- dence, even if mortgage be assented to by her. Hawaii. — Mortgage with power of sale. may be foreclosed by mortgagee by sale under the power, and filing with registrar copy of notice of sale and afB.davit. Or mortgagee may, make entry on the premises for foreclosure with written consent of mortgagor, or in the presence of two witnesses whose affidavit must be recorded. Possession continued for two years bars re- demption. Foreclosure may also be by suit in equity. In case of sale there is no redemption. Idaho. — Foreclosure only by action, and sale under order of court. Mortgagor may redeem within one year after sale. Illinois. — Mortgages may be in common form, or in that of trust deeds. Foreclosure only by action or suit in equity. Where property is clearly of less value than amount of mortgage, and mortgagor is insolvent, mortgagee may be permitted to take land in satisfaction of debt, witb no Tight of re- demption. In case of sale mortgagor may redeem within one year. Indiana. — ^Mortgages are foreclosed only by proceedings in court and sale. Mortgagee may redeem within one year after sale . Iowa. — Foreclosure only by suit. Mortgagor has one year after sale in which to redeem. Kansas.— Foreclosure only by suit. Mortgagor may redeem within eight- een months after sale, and is entitled to possession of the premises in the meantime. Kentucky. — Foreclosure only by proceedings in equity. Premises must be appraised before sale. If they bring less than two-thirds of appraised value, mortgagor may redeem within twelve months. Mortgages are barred in fifteen years unless renewed or extended by partial payments. Louisiana. — Foreclosure only by judicial proceedings and sale. There is no redemption. Mortgage must be renewed within ten years after date. Maine. — Power of sale mortgages may be foreclosed by mortgagee by sale in accordance with terms of power in which case there is no redemption. Foreclosure by possession is effected: 1. By judgment of court and posses- sion; 2. By entry with consent of mortgagor; 3. By entry in presence of two witnesses who make sworn certificate. Possession must be retained for one year. Abstract of writ of possession and return, written consent, or certificate must be recorded within thirty days after entry. Foreclosure without taking possession is : 1. By thiee weeks' newspaper notice, describing land and claiming foreclosure for condition broken; or 2. By service of ABSTRACTS, POEECLOSUEE, ETC. . 539 same on mortgagol: or present holder of record title; to be recorded within thirty days after last publication or service. Mortgagee's title is complete in one year after entry, first publication, or service, provided afidavit of mortgagee be recorded within three months, setting forth names of parties, date of mortgage, date and place of record of certificate of foreclosure, that possession, if taken has been continuous for one year, that no payment has been made and no act done waiving rights under foreclosure. Mortgages may also be foreclosed by proceedings in equity. Maryland. — ^Mortgages must have endorsed thereon afSdavit of mortgagee or his agent ' ' that the consideration in said mortgage is true and bona fide as therein set forth." Power of sale mortgages in Baltimore are fore- closed by proceedings in equity, in which sale is made by a trustee appointed by the court. In the counties sale is made by the mortgagee, who gives bond, and after sale reports to the court for ratification and confirmation. Hassachusetts. — Mortgages usually contain a power of sale, and, on breach of condition, property is sold by mortgagee without proceedings in court J the deed and affidavit of sale must be recorded within thirty days. There is no redemption. Foreclosure may also be by writ of entry and conditional judgment for payment of mortgage debt within two months, in default of which mortgagee is entitled to possession. This method is seldom used. Mortgagee may also make peaceable entry for foreclosure in the presence of two witnesses whose affidavit of the fact must be recorded within thirty days. In either of these cases foreclosure becomes complete in thTee years after entry. Michigan. — Mortgages containing power of sale may be foreclosed by mortgagee by sale after three months publication of notice. Deed does not become operative until one year after sale, within which time mortgagor may redeem. Toreclosure may also be by bill in equity, under which sale may be ordered after six months from date of filing bill. Mortgagor may redeem within six months after sale. Foreclosure must be within fifteen years after maturity of mortgage or last payment. Minnesota. — Mortgages usually contain a power of sale, and may be fore- closed by sale after six weeks advertisement. ForeclosuTe may also be by action. In either case mortgagee may redeem within one year after sale. There may also be a " strict foreclosure under decree of court, but decree cannot be entered until one year after judgment fixing amount of debt. Mortgage must be foreclosed within fifteen years from maturity unless regu- larly extended. Mississippi. — Foreclosure may be made by mortgagee By sale under power in mortgage, or by bill in chancery and sale thereunder. No redemption, after sale. If remedy at law on the debt is barred, remedy in equity on the mortgage is also barred unless within six months extension is noted on record or new mortgage noting extension is filed for lecord. Missouri. — Mortgage is usually in form of deed of trust, under which trustee is authorized to sell without suit as in case of mortgage with power of sale. If beneficiary or his representative purchases at sale, mortgagee has one year to redeem, provided he gives written notice of intention to re- deem at or within ten days before sale, and within twenty days after qple 590 . MORTGAGES OF LAND. gives security for payment of interest, expenses, etc. VPhen debt is barred by limitation fight to foreclose is also barred. Kontana. — Foreclosure by action, and sale under decree of court; or, it in form of trust deed, by sale by trustee under power, or by sale under power in mortgage. One year from sale allowed for redemption. Mortgage is barred in eight years after maturity unless within sixty days ,thereafter the mortgagee files affidavit of- Tenewal setting forth date, place of record, amount of debt, amount unpaid, and that mortgage is not renewed for pur- pose of hindering, delaying or defrauding creditors of mortgagor or owner of land. This operates as an extension for eight years. Nebraska. — Foreclosure only by sale under decree of court. IStay of ex- ecution on decree for nine months on written request. No redemption from sale. Action to foreclose barred in ten years from maturity, or last pay- ment, or new promise. Nevada. — Foreclosure by action and sale under order of court. No re- demption after sale. New Hampshire. — If mortgage contains power of sale, mortgagee may sell under the power, first giving statutory notice for three weeks. No re- demption after sale. Foreclosure may also be by entry under process of law and continued possession one year; or by peaceable entry and posses- sion one year with three weeks' publication of notice, the first publication to be six months before right of redemption is foreclosed; or by mortgagee in possession with similar publication and possession for one year after time specified in notice. New Jersey. — Mortgage is usually accompanied by bond. Foreclosure by suit in equity and sale. No redemption, unless action is brought on bond for deficiency of mortgage debt.. New Kezico. — Foreclosure may be by sale under power in trust deed or mortgage, or under order of court. In former case one year is allowed for redemption ; in the latter, nine months. In judicial proceeding no sale until pinety days after order of court, within which time mortgagor may redeem. New York. — Foreclosure by action, in which all persons interested are made parties, and sale under order of court. No redemption by persons made parties, or properly notified. Mortgages containing power of sale may be foreclosed by sale under the power, provided certain statutory pro- visidns as to notice, advertising, etc., are complied with. North Carolina. — Foreclosure by action, or, if mortgage contain power of sale, by sale under . the power. In latter ease' sale must be advertised for twenty days at courthouse door, as well as In manner provided in mortgage. No right of redemption, but if within ten days bid be raised ten per cent, on sale for $750, or five per cent, on larger amount, resale may be ordered. North Dakota. — Foreclosure by action, or, in case of power of sale mort- gage, by sale under power. Mortgagor has one year to redeem, during which he has possession of premises. Ohio. — Foreclosure by suit, and sale under order of court. No redemp- tipn from sale. There are special statutory provisions as to mortgages given to pay off prior encumbrances, or to improve property. ABSTRACTS, FORECLOSURE, ETC. 591 Oklahoma. — ^Foreclosure only by action and sale. Unless mortgage con- . tain words, ' ' and waive the appraisement, ' ' property must be appraised, and , not sold for less than two-thirds of appraised value. If appraisal be waived, no order of sale until six months after date of judgment. Oregon. — Foreclosure by suit in equity and sale. Mortgagor may redeem within one year after confirmation of sale. Right to foreclose is barred after ten years from maturity or recorded extension of mortgage. But if mortgagor still owns property, and there are no liens or rights of third par- ties acquired after said ten years, mortgage may be foreclosed if any pay- ment be made within ten years before suit. Pennsylvania. — Mortgage is usually accompanied by bond, and warrant to confess judgment. Foreclosure is usually by writ of scire facias, but this cannot be sued out until one year after mortgage becomes due unless there is express waiver. No redemption after execution sale. Sheriff's deed bars wife's right of dower. Philippines. — ^Mortgages are governed by the Civil Law in force prior to American occupation. This provides for sale of mortgaged property to sat- isfy debt. Porto Rioo. — The provisions of the Spanish law are still in force, provid- ing for a, summary sale of property on breach of condition. Bhode Island. — Power of sale mortgages are usually foreclosed by sale under the power, from which there is no redemption. Foreclosure may also be by proceedings in equity. Mortgagee may obtain possession for strict foreclosure by action at law, or by peaceable entry in presence of two wit- nesses, whose certificate must be acknowledged and recorded. In either case mortgagor has three years to redeem. South Carolina. — Foreclosure is by suit, and sale of premises. There is no right of redemption from sale. South Dakota. — Mortgages or assignments cannot be recorded unless they give post ofiice address of mortgagee or assignee. Power of sale mortgages may be foreclosed by sale under power without action of court; but fore- closure must be commenced within fifteen years after cause of action ac- crued. Foreclosure may also be by action and sale. One year allowed for redemption, during which mortgagor has right of possession. An additional year allowed on payment of all taxes and interest due on mortgage, and one year's interest in advance. ' Tennessee. — ^Mortgages are almost exclusively in the form of trust deeds, and are foreclosed by trustee's sale under power in the deed. Unless right to redeem is waived, or is limited by decree, land may be redeemed within two years. Wife need not join in mortgage except of homestead. Lien barred in ten years. Texas. — Foreclosure by suit, and sale; or, if mortgage contain power of sale, by, sale under power. No redemption after sale. Utah. — Foreclosure by action and sale, with six months right of redemp- tion. Vermont. — Foreclosure by chancery suit, or by action, undei" which title passes to mortgagee without sale, subject to redemption within one year, or, if security is insufficient, a less time at discretion of the court. 592 LEASES. Virginia. — Trust deeds usually take the place of mortgages, and fore- closure is by sale by the trustee without intervention of court. There is no redemption from sale. Washington. — JPorecIosure by action and sale. One year is allowed for redemption. West Virginia. — i^reclosure by sale under decree of court of equity. Trust deeds usually take the place of mortgages, under which land is sold by trustee without proceedings in court. No redemption after sale. Wisconsin, — If mortgage contains power of sale foreclosure may be by advertisement and sale under power, with one year allowed for redemption. In foreclosuTe by action, no sale until one year after date of judgment, and six weeks' publication of notice. No redemption after sale. Wyoming. — Foreclosure by sale under decree of court of equity, or by advertisement and sale if mortgage contains power of sale. Six months al- lowed for redemption. CHAPTER XXXII. LEASES. A LEASE is a contract whereby one party (the lessee or tenant) takes the possession of the land and all that is on it, and the other party (the lessor or landlord) gives possession of- the land, and reserves (that is, agrees to take) a rent, which the tenant pays him by way of compensation. All things usually comprehended under the words "house," "farm," "land," "store," etc., pass to the tenant, where such words are used, unless there be an express exception. And inac- curacies as to quantities, names, measurements, or amounts, will be cArrected, if there be enough in the lease to make the purposes and iatentions of the parties certain. And letting to hire any- thing to be used carries with it all those appurtenances and ac- companiments necessary for the proper use and enjoyment of the thing, which belong to the lessor. A landlord is bound to put his lessee into possession with good title. If he covenants "to renew" generally, this, means a re- newal of the lease on the same terms, but without inserting in the new lease another covenant of renewal. In the absence of fraud or concealment the tenant is bound by his lease whatever the actual condition of the premises may turn LEASES. 593 out to be. There is no warranty implied by law on the part of the landlord that the premises are tenantable, or even reasona- bly suited for occupation ; the rule of caveat emptor applies. An exception to this rule has, however, been made in the case of a lease of a furnished house for immediate occupancy, and where a furnished sea-shore house, let for the summer season, was found to be infested with bugs, the right of the tenant to cancel his lease was sustained. The landlord is bound to inform the tenant of any hidden de- fect in the premises or danger therein known to him at the time of making the lease, 'but is under no obligation to notify him as to such defects and dangers as would be apparent on reasonably careful inspection, unless the tenant makes express inquiries as to the condition of the premises. And. if the tenant be induced to take his lease by false and fraudulent representions of the landlord he may on the discovery of the fraud cancel the lease. A landlord is under no legal obligation to repair the house, un- less he expressly agrees to do so. If the house is never so much dilapidated and disfigured as to paper, paint, etc., and locks and blinds, and doors and windows are out of order, and the like, the tenant can claim nothing of the landlord. Even if it becomes wholly uninhabitable by no fault of the house or of the landlord, as if it burns up, or is blown down, or if the overflow of a stream ruins a field or a farm, still the landlord is not bound to do any- thing, unless by special agreement. Accordingly it appears to be the law that the tenant cannot leave his house, or refuse to pay rent, for any cause arising after the hiring not occasioned by the act of the landlord or by some neglect of duty on his part. But, strange to say, the rights of the tenant in such case are still somewhat uncertain. But where the premises become uninhabitable by the fault of the landlord, as from his failure to furnish heat in an apartment, or to repair drains which it was his duty to keep in repair, it has been held that the tenant is justified in abandoning the premises and re- fusing to pay further rent. If the house be wholly destroyed, the tenant must still pay rent, under an ordinary lease; because the law looks upon the land as the principal thing, and the house as secondary. And not only so, but if the tenant covenants "to return and redeliver the house at the end of the term, in good order and condition, 38 594 LEASES. reasonable wear ajid tear only excepted," lie would be bound under this agreement to rebuild the house if it were burned down. But recently all well-drawn leases have clauses providing that the rent shall cease or be abated while the premises are un- inhabitable from fire or any other unavoidable calamity. A sim- ilar exception is added to the clause about returning the house at the end of the lease. If this exception be in, a tenant is not bound to rebuild, even if the house be burned through the care- lessness of himself or his servants. In some of the States the rights of the parties under these circumstances are regulated by statute. A tenant of a room, or of a suite of chambers, is entitled to the use of all the appurtenances and accommodations which fairly go with it, as of the front door and entry, water-closets, and of all windows, etc., proper to the enjoyment of what he hires. But an express agreement about all these things, and cellar-room, pump, and the like, is always sa'f est. The tenant is not bound to make general repairs without an ex- press agreement. But he must make such as are necessary to preserve the house from injury, as from rain, if shingles or slates are blown off or glass broken. And he would be bound even for ornamental repairs, as paper and paint, under a covenant to re- turn ' ' in good order. " A tenant is not responsible for taxes, unless it is expressly agreed in the lease that he shall be. The tenant of a farm is boimd, without express covenants, to manage and cultivate the same in such a manner as good hus- bandry and the usual course of management of such farms in his vicinity would require. The times for payment of rent are usually specified in the lease, if not, they would be governed by the usage of the country, if * there were any of sufficient distinctness and force. A tenant under a Jease which says nothing about underletting has a perfect right to underlet, remaining himself bound for his rent to his landlord. If there be a clause prohibiting him from underletting or as- signing, and he agrees not to, nevertheless he may do so without forfeiting the land; but he will be, as before, liable for rent; and besides this, he will be responsible in an action for any dam- LEASES. 595 ages whicli the landlord cau show that he has sustained by such underletting. It is usual to go further in the lease than this, and provide that such underletting shall make a forfeiture of the lease, and au- thorize the landlord to enter upon the premises and turn the ten- ant out. Where there is this covenant, if the tenant now under- lets, the landlord cannot avail himself of the clause of forfeiture and afterwards hold the tenant for his rent. He may either hold him for his rent,' and also for damages, or he may terminate the lease ; but cannot do both. That is, if he continues to hold the tenant responsible for rent, he cannot prevent the tenant's let- ting somebody else occupy the house and pay to him (the tenant) the rent which he pays over. He may, however, after forfeiture, if the lease so provides, hold the tenant responsible in damages for subsequent loss of rent. At the expiration of the term of the lease the interest of the tenant is at an end. If he continues in possession he is only what the law terms a tenant at sufferance, having no right or interest in the premises, and liable to be turned out at once without no- tice. If, however, he holds over with the tacit consent of the landlord, the general rule in this country is that the landlord may, at his election, treat him as a tenant from year to year, and may hold him for another year on the terms of the original lease. In Maine, New Hampshire and Massachusetts, where tenancies fropi year to year are not recognized by the law, such holding over with the consent of the landlord, express or implied, makes the lessee only a tenant at will, and the same result is effected by statute in other States. And where a tenant holds over pend- ing negotiations for a new lease he is held to be a tenant at will. A tenancy at will may be created in other ways, as by the oc- cupation of land under an oral agreement without a lease. The characteristics of such a tenancy are the uncertainty of its dura- tion, and the right of either party to terminate it by giving proper notice. A tenant at will cannot leave, nor can he be turned out, without a notice to quit. The law on this sub- ject is not uniform. In general, however, it is this. If rent is payable quarterly, or not more frequently, then there must be a quarter's notice. If rent is payable oftener, then the notice mt!St be as long as the period of payment. Thus, if rent is paya- ble monthly, there must be a month's notice ; if weekly, a week's 596 . - LEASES. notice. But th.e notice must terminate on a day when the rent is payable. It may be given at any time, but operates only after the required interval or period. between two payments. Thus, if a tenant whose lease terminates on the 31st of December holds over by consent, and pays rent quarterly, and the landlord wishes that he should leave the house on the last day of September, he may give notice on the preceding 30th day of June, or any day preceding that. But if he gives notice on any day before the 30th of June, the tenant will still have a right to stay until the 30th of September. Properly, the notice should specify the day, and the right day, when the' tenant must leave ; and should be in writing. A tenancy at will may also be terminated by a written lease of the premises made by the landlord to a third person. The lessee under such a lease is entitled to immediate possession, and the tenant at will, after notice from the lessee to vacate, is entitled only to such reasonable time as may be necessary to remove his property from the premises. A tenant at will may give notice of his intention to quit, and generally it will be subject to the same rules already staited in reference to the notice given by a landlord. A tenant should give his notice to the party to whom he is bound to pay rent, or to an authorized agent of that party. In all well-drawn leases there is a proviso that if the rent be in arrear the lessor may enter on the premises and expel the lessee, and so terminate the tenancy. Under the common law this was a very technical proceeding, requiring among other things a demand by the landlord of the exact amount of rent due, and on the very day it fell due. By statute, however, in nearly all, if not all, of our States it is provided in substance that if the rent be in arrear the lessor may, by giving the tenant a written notice to quit for non-payment of rent, terminate his tenancy at the end of the period named in the notice, and if the rent be not then paid he may by a summary proceeding in the courts obtain possession of the premises. The time allowed by such notice is ■ usually brief; the statutes of the different States vary on this point, but a frequent period is fourteen days. And if notice to quit is given because the rent is unpaid, it may be given at any time and will operate at the end of the period which the law LEASES. 597 designates; but it should specify the day on which the tenant must quit. It is quite important that both tenant and landlord should have some knowledge of the law of fixtures ; for this tells them what things the tenant may take away and what he cannot. For there are many things which a tenant may add, and afterwards remove, and many which he cannot- remove. The method of affixing them may be a useful criterion, as it indicates the pur- pose of removal or otherwise. If with screws, or in such a way as to show that removal was intended, things may be taken away, when, if the same things were fastened more permanently, they could not be. In modern times the rule in favor of the tenant seems to extend as far as this : whatever he has added, and can remove, leaving the premises entirely restored and in as good order as if he had not removed it, that he may take away. Among the things held to be removable, in different adjudged cases, are these: ornamental chimney-pieces; coffee-mills; cor- nices screwed on; furnaces; fire-frames ; stoves; iron backs to chimneys; looking-glasses; pumps; gates; rails and posts-, barns or stables on blocks. Among those held not removable are these : barns fixed in the ground; benches fastened to the house; trees, plants, and hedges, not belonging to a gardener by trade; conservatory strongly affixed ; glass windows ; locks and keys. But almost every one of these might be removable, or not, ac- cording to the intent of the parties, and the rule above stated, of removableness with or without injury. If a man sells a house, the law of fixtures is construed far more severely against him than against a tenant who leaves a house; that is, the seller must permit the buyer to hold a great many things which an outgoing tenant might remove. Of course, a seller may take what he will from his house before he sells it, or make what bargain the parties choose to make about the fixtures. But if he makes no such bargain, and sells the house, he cannot then take from the house what a tenant who put them there might take. In favor of trade and manufactures, the law permits almost anything which was put in by a tenant for such purposes to be taken away, if the premises can be restored substantially to their original condition. 598 LEASES. Tlie tenant takes his lease subject to the state of the landlord 's title at that time. If the land was then mdrtgaged or subject ,to any easement or restriction the tenant is liable to be turned out of possession by a foreclosure of the mortgage, or to a limitation in the use of the property by reason of such easement or restric- tion. In case of a sale by the landlord, his interest in the lease passes to his grantee without any special assignment, and the grantee may collect the rents and enforce the covenants of the tenant in the lease. The landlord may also assign the rents, without part- ing with his title to the premises. The interest of the tenant is assignable, unless forbidden by the terms of the lease. If the lease is recorded, the assignment should be recorded also. If the tenant be evicted — ^that is, turned out of possession — during the term -of his lease, his obligation to pay rent ceases. Such eviction may be caused by one having a paramount title to that of the landlord, as in the case of the foreclosure of a mort- gage in existence at the date of the lease, or by some act of th« landlord himself. The eviction may be actual — ^such as a forci- ble dispossession of the tenant — or constructive, the latter term being applied to any act of the landlord which so affects the tenant 's enjoyment of the premises that he is legally justified in relinquishing his possession. "What acts amount to a constructive eviction is often a question of difficulty. In general, it may be said that they must be of such a character as to cause a substan- tial and permanent interference with the tenant's enjoyment of the premises. A mere trespass is not sufficient. Examples of such acts are, the closing of a road which furnished the only means of access to the leased premises ; digging drains under a house and so undermining the foundations as to render the house uninhabitable ; the erection of buildings closing up windows and cutting off light and air, and shutting off the supply of water from a leased stable occupied by the tenant's horses. So too, it has been held that shutting off power from a factory where power was leased with the building, and failure to furnish suita- ble elevator service in an office building, rendering the premises entirely unsuitable for the purposes for . which they were hired, amounted to constructive eviction. The eviction may be partial, extending only to a part of the leased premises, as where the landlord locked up one room in a LEASES. 599 suite of three. While a partial eviction may justify the tenant in abandoning the whole of the leased premises, he is not obliged to do so, and may, if he chooses, continue to occupy the re- mainder. In such case the tenant is not liable for rent, or to pay for use and occupation of the premises while the acts of eviction continue. In most of the States leases for a term of more than one year must be in writing, otherwise they take effect only as tenancies at will, even as between the parties thereto. In Florida leases for two years must be in writing ; so in In- diana, New Jersey, North Carolina and Pennsylvania, must leases for three years ; in Virginia, leases for five years ; and in Mary- land leases for seven years. In Hawaii, Maine, Massachusetts, Missouri, New Hampshire, New Mexico, Ohio, Vermont and Washington leases not in writ- ing take effect only as tenancies at will. Leases for more than one year are not valid unless recorded, in California, Connecticut, Florida, Hawaii, Idaho, Montana, Ne- braska, Noi::th Dakota, Oklahoma, Ehode Island, South Carolina, South Dakota, and Vermont ; leases for more than three years in Indiana, New York, North Carolina, Ohio, Tennessee, Wisconsin and Wyoming ; leases for more than five years in Kentucky, Vir- ginia and West Virginia; leases for more than seven years in Maine, Maryland, Massachusetts and New Hampshire; or for more than twenty-one years in Delaware and Pennsylvania. In the following States aU conveyances of land — including leases — must be acknowledged and recorded: Alabama, Alaska, Ar- kansas, Arizona, Colorado, Georgia, Iowa, Illinois, Kansas, Michi- gan, Minnesota, Mississippi, Missouri, Nevada, New Mexico, Ore- gon and Texas. In North and South Dakota and California, leases of agricul- tural land are limited to ten years ; those of city lots in South Dakota to twenty years. In California leases of city lots are limited to ninety-nine years, and of property of a municipality, a minor or incompetent person to ten years. In North Dakota leases of lands of a town or city are limited to ninety-nine years. The remarks in respect to the variety of forms which will be found at the close of the chapter on deeds of land, are equally ap- plicable to forms of leases, and should be read in connection with the following forms. 600 LEASES. (288.) A Short Form of Lease. This Indenture, Made the day of in the year of" our Lord one thousand nine hundred and : Witnesseth, That I, {name and residence of the lessor) do hereby lease, demise, and let unto {name and residence of the lessee) a certain parcel of land, in the city {or town) of County of and State of with all the buildings thereon standing, and the appurtenances to the same belonging, bounded and described as follows {or, a certain house in said city, gitoing the street and number, with the land under and ad jam- ing the same). {The premises need not lie described quite as minutely or fully as is proper in a deed or mortgage of land, but must be so described as to identify them perfectly, and make it certain just what premises are leased.) To Hold for the term of from the day of , 19 , yielding and paying therefor the rent of per annum. And said lessee does promise to pay the said rent in four quarterly pay- ments on the first days of January, April, July, and October in each year during said term, {or state otherwise just when the payments of rent are to be made) and to quit and deliver up the premises to the lessor or his attor- ney, peaceably and quietly at the end of the term, in as good order and con- dition, reasonable use and wearing thereof, fire and other unavoidable casual- ties excepted, as the same now are or may be put into by the said lessor, and to pay the rent as above stated, and all taxes and duties levied or to be levied thereon during the term, and also the rent and taxes as above stated for such further time as the lessee may hold the same, and not make or siiffer any waste thereof; nor lease, nor underlet, nor, permit any other person or persons to occupy or improve the same, or make or suffer to be made any alteration therein, but with the approbation of the lessor thereto in writing, having been first obtained; and that the lessor may enter to view, and make improvements, and to expel the lessee, if he shall fail' to pay the rent and taxes as aforesaid, or make or suffer any strip or waste thereof. In Witness Whereof, The said parties have hereunto interchangeably set their hands and seals the day and year first above written. {Signatures.) {Seals.) Signed, Sealed, and Delivered in Presence of (289.) A Fuller Form, with a Provision for Abatement of Eent. This Indenture, Made this day of in the year of our Lord one thousand nine hundred and , by and between {name and residence of lessor) and {name and residence of lessee). Witnesseth, That the said {name of lessor) does hereby lease, demise, and let unto the said {name of lessee) {describe the premises). To Hold for the term of years, commencing the day of A. D. one thousand nine hundred and the said lessee, or LEASES. 601 those claiming under him, yielding and paying rent therefor the sum of for each and every year, and after the same rate for any part of a year. And the said lessee, for himself, his heirs, executors, and administrators, does hereby covenant to and with the said lessor, and his heirs and assigns, that he or they will pay the said rent of in equal sums of the first of which payments shall he made on the day of A. D. one thousand nine hundred and and that he or they will pay rent after the same rate for such further time as he the said lessee, or those claiming under him, may hold the premises ; that he or they will, from time to time, upon request by the lessor, or his heirs or assigns, pay to them such sum or sums of money as shall be equal to the amount of the taxes and duties, and water-taxes, that shall be levied or assessed on the demised prem- ises for each year and part of a year during the term aforesaid, and during such further time as the said lessee and those claiming under him may hold the premises; that he or they will not suffer nor commit any strip or waste in the premises ; that he or they will not assign this lease, nor underlet the whole or any part of the premises, to any person or persons; and that no alterations or additions shall be made during the term aforesaid, in or to the same, without the consent of the said lessor, or of those having his estate in the premises, being first obtained in writing, allowing thereof; and also that it shall be lawful for the said lessor, and those having his estate in the premises, at seasonable times to enter into and upon the same to examine the condition thereof; and further, that he the said lessee, and his representa- tives, shall and will, at the expiration of said term, peaceably yield up unto the said lessor, or those having his estate therein, all and singular the prem- ises, and all future erections and additions to or upon the same, in as good order and condition, in all respects (reasonable wearing and use thereof, and damage by fire, and other unavoidable casualties excepted) as the same now are, or may be put into by the said lessor or those having his estate in the premises. Provided always, and these presents are upon this condition, that if the said rent shall l)e in arrear, or the said lessee or his representatives or as- signs do or shall neglect or fail to perform and observe any or either of the above covenants hereinbefore contained, which on his or their part are to be performed, then and in either of said cases, the said lessor, or those having his estate in the said premises, lawfully may, immediately or at any time thereafter, and while such neglect or default continues, and without further notice or demand, enter into and uport the said premises, or any part thereof, in the name of the whole, and repossess the same as of his former estate, and expel the said lessee and those claiming under him, and remove his or their effects (forcibly if necessary) without being taken or deemed guilty of any manner of trespass, and without prejudice to any remedies which might otherwise be used for arrears of rent, or preceding breach of covenant. And provided also, that in case the premises, or any part thereof, shall, during said term, be destroyed or damaged by fire or other unavoidable casualty, so that the same shall be thereby rendered unfit for use and habi- tation, then, and in such ease, the rent hereinbefore reserved, or a just and 602 LEASES. proportionate part thereof, according to the nature and extent of the injuries sustained, shall be suspended or abated until the said premises shall have been put in proper condition for use and habitation by the said lessor, or these presents shall thereby be determined and ended at the election of the said lessor or his legal representatives. In Testimony Whereof, The said parties have set their hands and seals on the day and year first above written, to this and to another instrument of . like tenor and date. (^Signatures.) (Seals.) Signed, Sealed, and Delwered in Presence »f (290.) A Short Form of Lease in use in some Western States. This Indesture, Made this day of , 19 , between (name and residence of the lessor) party of the first part, and (name and residence of the lessee) party of the second part, witnesseth that the said party of the first part, in consideration of the covenants of the said party of the secofld part, hereinafter set forth, doth by these presents lease to the said party of the second part the following-described property, to wit : (describe the prop- erty). To Have and to Hold the same to the said party of the second part, from the day of , 19 , to the day of , 19 And the said party of the second part, in consideration of the leasing the premises as above set forth, covenants and agrees with the party of the first part to pay the said party of the first part, as rent for the same, the sum of dollars, payable as follows, to wit (here state the time and terms of payment, much as in the first form of lease hereinbefore given). The said party of the second part further covenants with the said party of the first part, that at the expiration of the time mentioned in this lease, peaceable possession of the said premises shall be given to said party of the first part, in as good condition as they now are, the usual wear, inevitable accidents, and loss by fire excepted; and that upon the non-payment of the whole or any portion of the said rent at the time when the same is above promised to be paid, the said party of the first part, may, at his election, either distrain for said rent due, or declare this lease at an end, and recover possession as if the same was held by forcible detainer; the said party of the second part hereby waiving any notice, of such election, or any demand for the possession of said premises. The covenants herein shall extend to and be binding upon the heirs, ex- ecutors, and administrators of the parties to this lease. Witness the hands and seals of the parties aforesaid. (Signature of lessor.) (Seal.) (Signature of lessee.) (Seal.) FORMS OF LEASES. 603 (291.) Lease of City Property, in use in Massaclmsetts. This Indenture, Made the day of in the year nineteen hundred and , between of , (hereinafter called the lessor ) of the one part, ' and of , (hereinafter called the lessee ) of the other part, Witnesseth, That in consideration of the rent and covenants herein re- served and contained^ on the part of the lessee and his heirs, executors, ad- ministrators and assigns, to be paid, performed and observed, the lessor doth hereby demise and lease unto the lessee (description of property leased). To Have and to Hold the premises hereby demised unto the lessee , his executors, administrators and assigns, for the term of years from , Yielding and paying therefor the yearly rent of dollars, during the said term by equal payments of dollars on the day of each for the ending with the first _, payment to be made on the day of next, and also at the legal determination of this lease a proportionate part of the said :^ent for any part of- a then unexpired. And the lessee does hereby for himself and his heirs, executors, administra- tors and assigns, covenant with the lessor, his heirs and assigns, that the lessee, his executors, administrators, or assigns, during the said term and for such further time as he or they or any other person or persons claiming under him shall hold the said premises or any part thereof, will pay unto the lessor, his heirs or assigns, the said rent at the times and in the manner aforesaid, and will keep all and singular the said premises in such repair, order and condition as the same are in at the commencement of the said term, or may be put in during the continuance thereof, damage by flre or other unavoida- ble casualty only excepted; and will pay all taxes and charges for water; and will save the lessor, his heirs and assigns harmless from all loss and damage occasioned by .the use or escape of water upon the said premises, or by the bursting of the pipes, or by any nuisance made or suffered on the premises, as well as from any claim or damage arising from neglect in not removing snow and ice from the roof of the building, or from the sidewalks bordering upon the premises so leased; and will not assign this lease nor underlet the whole or any part of the said premises without first obtaining on each occasion the consent in writing of the lessor, his heirs and assigns; and will not permit any hole to be drilled or made in the stone or brickwork of the said building, or any placard or sign to be placed upon the building, except such and in such place and manner as shall have been first approved in writing by the lessor, his heirs or assigns; and will keep good with glass of the same kind and quality as that which may be injured or broken, all the glass now or hereafter on the premises, unless the same shall be broken by flre, acknoT^ledging that the same is now whole and in good order; and will defray all the expenses of emptying and cleaning the drains and cesspool, and will leave the same empty; and at the expiration Of the said term will remove his or their goods and effects, and those of all persons claiming under him or them, and will peaceably yield up to the lessor, his heirs or assigns, . 604 LEASES. the said premises, and all erections and a'dditions made to or upon the same, i in good repair, order and condition in all respects, damage by Are or other unavoidable casualty excepted; and that during the said term, and such further time as aforesaid, the said premises shall not be overloaded, dam- aged or defaced; and no trade or occupation shall be carried on upon the said premises, or use made thereof which shall be unlawful, improper, noisy, or offensive, or contrary to any law of the Commonwealth or ordinance or by-law of the City of .. for the time being in force, or injurious to any person or property; and no act or thing shall be done upon the said premises, which may make void or voidable any insurance of the said prem- ises or building against fire, or may render any increased or extra premium payable for any such insurance; and no addition or alteration to or upon the said premises shall be made without the consent of the lessor, his heirs or assigns; and all property of any kind that may be on the premises shall 'be at the sole risk of the lessee, or those claiming ttirough or under him, and the lessor, his heirs or assigns shall not be liable to the lessee or any other person for any injury, loss, or damage to any person or property on the premises; and that the lessor, his heirs or assigns and his or their agents may during the said term, at seasonable times, enter to view the said prem- ises, and may remove placards and sighs not approved and affixed as herein provided, and may make repairs and alterations if he or they should elect so to do, and may show the said premises and building to others, and at any time within three months next before the expiration of the said term may affix to any suitable -part of the said premises a nbtice for letting or selling the said premises, or building, and keep the same so affixed without hindrance or molestation. Provided Always, that in case the said premises, or any part thereof, or the whole or any part of the building of which they are a part, shall be taken for any street or other public use, or shall be destroyed or damaged by fire or other unavoidable casualty, or by the action of the city or other authorities, after the execution hereof and before the expiration of the said term, then this lease and the said term shall terminate at the election of the lessor, or his heirs or assigns, and such election may be made in case of any such taking notwithstanding the entire interest of the lessor, or his heirs or assigns may liave been divested by such taking; and if they shall not so ielect, then in case of any such taking or destruction of or damage to the demisted premises, a just proportion of the rent thereinbefore reserved, ac- cording to the nature and extent of the injury , sustained by the demised premises, shall be suspended or abated until the demised premises, or in case of such-taking, what may remain thereof, shall have been put in proper Con- dition for use and occupation. Provided also, and these presents are upon this condition, that if the lessee or his executors, administrators or assigns do or shall neglect or fail to perform or observe any of the covenants contained in these presents, and on his or their part to be performed or observed, or if the estate hereby created shall be taken on execution, or by other process of law, or if the lessee or his executors, administrators, or assigns shall be declared bankrupt or insolvent according to law, or if any assignment shall be made of his or FOBMS OF LEASES. 605 their property for the benefit of creditors, then and in any of the aaid cases, (notwithstanding any license of any former breach of covenant or waiver of the benefit hereof or consent in a former instance) the lessor, or his heirs or assigns, lawfully may, immediately, or at any time thereafter, and without demand or notice, enter into and upon the said premises or any part thereof in the name of the whole, and repossess the same as of their former estate, and expel the lessee and those claiming through or under him and remove their effects (forcibly, if necessary), without being deemed guilty of any manner of trespass, and without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant, and upon entry as aforesaid this lease shall determine ; and the lessee covenants that in case of such termination he will indemnify the lessor, his heirs and assigns, against all loss of rent and other payments which he or they may incur by reason of such termination during the residue of the time first above specified for the duration of the said term. In Witness Whereof, the said parties have hereunto set their hands and seals, the day and year first above written. L. S. L. S. (292.) Lease of City Property, in use in Chicago. This Indenture, Made this day of in the year of our Lord one thousand nine hundred and between (name of the lessor) of the city of in the County of and State -of party of the first part, and (name and residence of the lessee) of the second part, Witnesseth, That the said party of the first part, for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and per- formed by the said party of the second part, or his executors, administra- tors, and assigns, has demised and leased to the said party of the second part all those premises situate, lying, and being in the city of Chicago, in the County of Cook, and State of Illinois, and known and described as fol- lows, to wit (here describe the premises). To Have and to Hold the said above-described premises, with the appur- tenances, unto the said party of the second part, and his executors, admin- istrators, and assigns, from the day of in the year of our Lord one thousand nine hundred and , for and during the term of years, and until the day of in the year of our Lord one thousand nine hundred and , the said party of the second part paying rent therefor, as hereinafter stated. And the said party of the second part, in consideration of the leasing the premises aforesaid, by the said party of the first part, to the said party of the second part, does covenant and agree with the said party of the first part, and his heirs, executors, administrators, and assigns, to pay the said party of the first part, at the house (or office or store) of the said party of the first part, numbered in Street, Chicago, or at the house or office of his assigns, as rent for the said demised premises, the sum of 606 LEASES. (state the whole annual rent) payable as follows (Jiere state the times and terms of the payments of rent). ' And it is further agreed by the said party of tfie second part, in consid- eration of the leasing of the premises, that the said party of the second part shall and will pay, or cause to be paid, promptly, as soon as the same be- comes due, all assessments for water-rents that may be levied upon said de- mised premises, during the continuance of this lease, by the Board of Water Commissioners of the city of Chicago, and save the said premises and tho" said party of the first part harmless therefrom, and that he will keep sai,d premises in a clean and healthful condition, in accordance with the ordi- nances of the city and the direction of the Sewerage Commissioners. And the said party of the second part hereby covenants and agrees, in case of delay in payment of any water-rent Jevied upon said premises during said term, to pay said party of the first part, as liquidated damages for such breach of covenant, double the sum of such rent so assessed upon said prem- ises' as aforesaid. And the said party of the second part further covenants with the said party of the first part, that at the expiration of the time in this lease men- tioned, he will yield up the said demised premises to the said party of the ' first part, in as good condition as when the same were entered upon by the said party of the second'part, loss by fire or inevitable accident, and ordinary T^ear excepted. It is further agreed by the said party of the second part, that neither he nor his legal representatives will underlet said premises, or any part thereof, or assign this lease, without the written assent of said party of the first part, first had and obtained thereto. It Is Expressly Understood and Agreed, by and between the parties aforesaid, that if the rent above reserved, or any part thereof, shall be be- hind or unpaid on the day and at the place of payment whereon the same ought to be paid, as aforesaid, or if default shall be made in any of the covenants herein contained, to be kept by the said party of the second part, or his executors, administrators, and assigns, it shall and may be lawful for the said party of the first part, or his heirs, executors, administrators, agent', attorney, or assigns, at his or their election, to declare said term ended, and the said demised premises, or any part thereof, either with or without process of law, to reenter, and the said party of the second part, or any other person or persons occupying, in or upon the same, to expel, remove, and put out, using such force as may be necessary in so doing, and the said premises again to repossess and enjoy as in his or their first and former estate; and it shall be the duty of the said party of the second part, his executors, ad- ministrators, or assigns, to be and appear at the said place above specified for the payment of said rent, and then and there tender and pay the same as the same shall fall due from time to time, as above, to the said party of the first part, or his agent or assijTis; or in Ms or their absence, if the party of the second part, or his legal representatives, shall offer to pay the same then and there, such offer shall prevent such forfeiture. Aiid it is expressly understood that it shall not be necessary in any event for the party of the first part, or his assigns, to go on or near the said de- FORMS OF LEASES. 607 mised premises to demand said rent, or elsewhere than at the place afore- said. And in the event of any rent being due and unpaid, whether before or after such forfeiture declared, to distrain for any rent that may be due thereon, upon any property belonging to the said party of the second part, whether the same be exempt from execution or distress by law or not, and the said part of the second part, in that case, hereby waives all legal rights which he may have to hold or retain any such property, under any ex- emption laws now in force in this State, or in any other way. Meaning and intending hereby to give to the said party of the first part, and his heirs, executors, administrators, and assigns, a valid and first lien" upon any and all the goods, chattels, or other property belonging to the said party of the sec- ond part, as security for the payment of said rent, in manner aforesaid, any- thing hereinbefore contained to the contrary notwithstanding. And if at any time said term shall be ended at such election of said party of the first part, or his heirs, executors, administrators, or assigns, as aforesaid, or in any other way, the said party of the second part, for himself and his execu- tors, administrators, and assigns, does hereby covenant, promise, and agree to surrender and deliver up said above-described premises and property peaceably to the said party of the first part, or his heirs, executors, admin- istrators, and assigns, immediately upon the determination of said term as aforesaid; and, if he shall remain in the possession of the same days after notice of such default, or after the termination of this lease, in any of the ways above named, he shall be deemed guilty of a forcible detainer of said demised premises under the statute, and shall be subject to all the conditions and provisions above named, and to eviction and removal, forcibly or otherwise, with or without process of law, as above stated; and in order to enforce a forfeiture of this lease for non-payment of rent when due, no demand for rent when due shall be required, any demand being hereby expressly waived. And it is further covenanted and agreed by and between the parties, that the party of the second part shall pay and discharge all costs and attorney's fees and expenses that shall arise from enforcing the covenants of this in- denture by the party of the first part. In Testimony Whereof, The said parties have hereunto set' their hands and seals the day and year first above written. {Signature of lessor.') (Seal.) {Signature of lessee.) (Seal.) In Presence of (293.) lease, with Covenants as to Water-B,ate, and Injury by Fire, in use in New York. This Agreement, Made between (name and residence of lessor) party of the first part, and (name and residence of lessee) party of the second part, witnesseth, that the said party of the first part has agreed to let, and hereby does let, and the said party of the second part has agreed to take, and here- by does taie, the following-described premises (here describe the premises), for the term of years, to commence , and to end , 608 LEASES. to be occupied (^describe the intended occupation) and not otherwise. And the said party of the second part hereby covenants and agrees to pay unto the said party of the first part the annual rent or sum of dollars, payable {state the times and terms of the payments.) And shall also pay the Croton water-rate, and will keep the plumbing work, pipes, glass, and the premises generally in repair, and will surrender them at the expiration of the said term, in as good state and cqndition as reasonable use and wear thereof will permit. And the said party of the second part further covenants that he will not assign, let, or underlet the. whole or any part of the said premises, nor make any alteration therein, without the written consent of the said party of the first part, under the penalty of forfeiture and damages ; and that he will not occupy the said premises, nor permit the same to.be occupied, for any busi- ness deemed extra-hazardous without the like consent, under the like penalty. And the said party of the second part further covenants that he will permit the said party of the first part, or his agent, to show the premises to persons wishing to hire or purchase, and three months next preceding the expiration of the term will permit the usual notices of "to let," or "for sale," to be placed upon the windows, walls, or doors of said premises and remain thereon without hindrance or molestation. And also, that if default be made in' any of the covenants herein contained on the part of the party of the second part, or if the said premises or any part thereof shall become vacant during the said term, the said party of the first part may reenter the same, either by force or otherwise, without being liable to any prosecution therefor ; and re-let the said premises or any part thereof in one or more parcels, as the agent of the said party of the second part, and receive the rent thereof, applying the same, first to the payment of such expense as he may be put to in reentering, and then to the payment of the rent due by these presents; and the balance (if any) to be paid over to the said party of the second part; and, in case of deficiency, said party of the second part will pay the same. And the said party of the second part hereby further covenants that if any default be made in the payment of the said rent, or any part thereof, at the times above specified, or if default be made in the performance of any of the covenants or agreements herein contained, the said hiring, and the rela- tion of landlord and tenant, at the option of the said party of the first part, shall wholly cease and determine; and the said party of the first part shall and may reenter the said premises, and remove all persons therefrom; and the said party of the second part hereby expressly waives the service of any notice in writing of intention to reenter, as provided for in the third sec- tion of an act entitled "An Act to abolish Distress for Bent, and for other Purposes, ' ' passed May 13, 1846. And it is further agreed between the parties to these presents, that, in case the building hereby leased shall be partially damaged by fire, the same shall be repaired as speedily as possible by the party of the first part ; that, in case the damage shall be so extensive as to render the building untenanta- ble, the rent shall cease until the same be repaired; provided the damage FOEMS OF LEASES. 609 be not caused by the carelessness or negligence of the party of the second part, or his agents or servants. If the building be so damaged that the owner shall decide to rebuild, the term shall cease, the premises ^e surrendered, and the accrued rent be paid up to the time of the fire. In consideration of the letting of the premises above mentioned to the above named {name of the lessee) and of the sum of one dollar to him paid by the said party of' the first part, the said party of the second part does hereby covenant and agree to and with the party of the first part above named, and his legal representatives, that if default shall at any time be made by the said party of the second part, in the payment of the rent and performance of the covenants . above contained on his part to be paid and performed, that he will well and truly pay the said rent or any arrears thereof, that may remain due unto the said party of the first part, and also all damages that may arise in consequence of the non-performance of said covenants, or either of them, without requiring notice of any such default from the said party of the first part. Witness our hands and seals this day of in the year of our Lord one thousand nine hundred and (Witness.) (Signature of lessor.) (Seal.) • (Signature of lessee.) (Seal.) (294.) Lease of City Property, in, use in St. Louis. This Indenture, Made the day of in the year of our Lord nineteen hundred and , between (name and residence of the lessor) of the first part, and (name and residence of lessee) of the second part, , Witnesseth, That the- said party of the first part, in consideration of the rents, covenants, and stipulations hereinafter mentioned, and hereby agreed to be paid, kept, and performed by the said party of the second part, his executors, administrators, and assigns, hath leased, and by these presents doth leasej to the said party of the second piart the following described premises (here describe the house, as of bricTc, or stone, number of stories, street, and number in the block) in block No. in the city of St. Louis, to commence on the day of , 19 , for and during the term of at the annual rent of ' payable in four equal quarterly payments, beginning three months from the date hereof. Any failure to pay each payment of rent when due, to produce a forfeiture of this lease, if so determined by said lessor or his successors. The lease of said tenement or any part of it is not assignable, nor is said tenement or any part of it to be underlet, without the written consent of said lessor, under penalty of forfeiture. And it is hereby covenanted, that, at the ex- piration of this lease, the said tenement and premises are to be surrendered to said lessor, his heirs, assigns, or successors, in the condition received, only excepting its natural wear and decay, or the effects of accidental fire. All 39 610 LEASES. repairs deemed necessary by said lessee to be made at his expense. All fix- tures sliall be bound for the rent. The said lessee and all holding under him hereby engaging to pay the rent above reserved, and double rent for every day when he or any one else in his name shall hold on to the whole or any part of said tenement, after the expiration of this lease, or of its forfeiture for non-payment of rent, ete. This tenement and premises to be kept free of any nuisance in or adjacent thereto, at the expense of the said lessee. (Signature of lessor.} (Seal.) (Signature of lessee.) (Seal.) (Witness.) (295.) Lease of Suite of Booms. This Indenture, Made this day of in the year one thou- sand- nine hundred and between of of the first part, and of of the second part, witnesseth: That the said party of the first part doth hereby demise and lease unto the said party of the second part the Suite of Eooms numbered in the (here destriie the iuilding by name or street and number and name of city or town). To Have and to Hold the above-described premises for the term of , beginning with the day of A. D. 19 Yielding and Paying (except only in case of fire or other casualty as here- inafter mentioned) the rent or sum of dollars yearly, by equal payments of dollars each, at the expiration of each and every hereafter during said term, and at that rate for such further time as the said lessee, or any other person or persons claiming under him shall hold the said premises or any part thereof; the first payment thereof to be made on the day of ifow next ensuing. And the lessee hereby covenants with the lessor and his heirs and as- signs that he and his executors and administrators will pay the said rent in manner aforesaid; that they will not assign this lease nor underlet the whole or any part of the leased premises; that they will not make or suffer any unlawful, improper, noisy, or otherwise offensive use thereof, nor any use whatsoever other than as and for a private residence; that they will not drive any nails or screws in, or otherwise mar, deface or alter the plastering, woodwork, or any other part of the leased premises; that they" will allow the lessor and his heirs and assigns, and their agents, at seasonable times to enter upon said premises, and examine the condition thereof, and make nec- essary repairs ; that they will conform to such reasonable regulations as may from time to time be established by the lessor, or by his heirs or assigns, for the general convenience of the tenants of said building ; and at the end of said term will peaceably deliver up the leased premises, in good and ten- antable order and condition to the lessor or to his heirs or assigns. Provided always, and these presents are upon this condition, that in case of a breach of any of the covenants to be observed on the part of the lessee, or in case the estate hereliy created shall be taken from the lessee or from FORMS OF LEASES. 611 his representatives by process of law, by proceedings in bankruptcy or in- solvency or otherwise, the lessor or his heirs or assigns may, while the de- fault or neglect continues, or at any time after such taking by process of law, and notwithstanding any license or waiver of any prior breach of con- dition, without any notice or demand enter upon the leased premises and thereby determine the estate hereby created, and may thereupon expel and remove, forcibly if necessary, the lessee and those claiming under him and their effects. But it is Agreed that, in case of a determination of the estate hereby created by an entry for breach of the condition herein contained, the lessee shall indemnify the lessor, or his heirs or assigns for all loss or damage which they may, prior to the time fixed as above for the expiration of this lease, suffer by reason of such determination, whether through decreased rent of said estate or otherwise; and it is also agreed that if the leased premises or any part thereof shall be damaged by fire or other unavoidable casualty, so as to be thereby rendered unfit for use and occupation, then and in such case the rent hereinbefore reserved, or a just and proportionate part thereof, according to the nature and extent of the injury sustained, shall be abated until the said premises shall have been duly repaired and re- stored by the lessor or his heirs or assigns, or, in case they shall be sub- stantially destroyed, the estate hereby 'created shall thereupon be determined. It is also Agreed that all furniture, merchandise or property of any kind which may be on said premises shall be at the sole risk of the lessee, or if the whole or any part thereof shall be destroyed or damaged by fire, water, or otherwise, the lessor shall in no case be lield liable to any party by reason thereof. In Witness Whereof the said parties hereunto, and to another instrument of like tenor, set their hands and seals on the day and year first above writ- ten. Signed and sealed in presence of (296.) Lease of Suite of Rooms — ^Fuller Form. This Indenture, Made this day of in the year one thou- sand nine hundred and between of of the first part, and of of the second part, Witnesseth, That the said party of the first part doth hereby demise and lease unto the said party of the second part the SUITE OF ROOMS num- bered in the (here describe building bif name, or by street and num- ber and name of city or town). T.o Have and to Hold the above described premises for the- term of , beginning with the - day of , A. D. 19 , and this ■ lease shall continue in full force and effect thereafter from year to year, until one of the parties shall on or before the day of in any year, give to the other party written notice of his intention to terminate this lease, on the day of the following month, in which case the lease hereby created shall terminate in accordance with such notice. 612 LEASES. Yielding and Paying (except only in case of fire or other casualty as here- inafter mentioned) as rent, the sum of dollars yearly, by equal payments of dollars at the expiration of each and every hereafter during said term, and at that rate for such further time as the said lessee or any other person or persons claiming under him shall hold the said premises or any part thereof; the first payment thereof to be made on the day of now next ensuing. And the lessor hereby covenants with the lessee that he shall peaceably hold and enjoy the said promises; and that except in case of accident, or except during necessary repairs, the lessor will, during said term supply said suite with hot and cold water for ordinary household purposes, and furnish heat during the heating season to the various rooms in said suite where radiators or registers are provided by the lessor. And the lessee hereby covenants with the lessor and his heirs and assigns that he and his executors and administrators will pay the said rent in manner aforesaid ; that they will not assign this lease nor underlet the whole or any part of the leased premises without the written consent of the lessor; that they will not make or suffer any unlawful, improper, noisy or otherwise offensive use thereof, nor any use whatsoever other than as and for a private residence; that they will not drive any nails or screws in, or otherwise mar, deface or alter the plastering, woodwork, or any other part of the leased premises; that they will allow the lessor and his heirs and assigns, and their agents, at all seasonable times to enter upon said premises, and examine the condition thereof, and make necessary repairs, and show the said premises to others, and at any time within three months next before the expiration of said term afiix to any suitable part of said premises a notice of letting or selling and keep the same so affi.xed without hindrance or molestation, and- remove placards, signs, awnings and wires not approved and affixed as here- in provided; that they will conform to such reasonable regulations as may from time to time be established by the lessor, or by his heirs or assigns, for the general convenience and comfort of the tenants and the vyelfare of said building; that they will at their own expense replace with the same kind and quality any glass in the premises, including shades belonging to the gas and electric fixtures, that may become injured or broken, unless the same shall be damaged by fire, said glass now being in perfect order; that they will compensate the lessor for any damage done to the walls of the halls or any other part of the building by the lessee, his agents, servants, or others in conveying furniture, merchandise, or any article to or from the demised premises; that they will indemnify and save harmless the lessor from all loss or damage in or about the building of which the demised premises form "a part, caused by misuse or careles'sness of any member of his household or others; that they will not permit any holes to be drilled or made in the ' stone, brick, metal or terra cotta work or roof of said building ; that they will not allow the halls and stairways to be obstructed or to be used for any other purpose than for ingress and egress to and from their respective apart- ments; that they will not hold the lessor or his heirs or assigns liable for any damage by water or otherwise to any goods or property on the prem- ises; that they will pay all damages which may result to the building or to FORMS OF LEASES. 613 property of tenants below from the leakage of water in or from the suite hereby leased, caused or permitted by the lessee or by his servants, agent or personal representative; that they will not allow the heat or water supplied -to the leased premises to be wasted, and will not keep in or about the prem- ises any dog or other objectionable animal after notice by the lessor;' that they will, at the end of said term, peaceably deliver up to the lessor, or his heirs or assigns, the leased premises and all erections and additions made to or upon the same, and all keys thereto, in as good order and coiidition as the same now are or may be put in, ordinary wear and damage by fire or other unavoidable casualty' excepted ; and that any notice from the lessor to the lessee relating to the demised premises, or the occupancy thereof, shall be deemed duly served if left at the demised premises addressed to the lessee. Provided also, and these presents are upon this condition, that if the lessee shall neglect or fail to perform or observ§ any of the covenants con- tained in this lease, and on the part of said lessee to be performed and ob- served, or if said lessee shall be declared balikrupt or insolvent according to law, or if any assignment shall be made of his property for the benefit of creditors, then and in any of the said cases (notwithstanding any license or Tvaiver of any prior breach of condition) the lessor lawfully may immediately or at any time thereafter, and without demand or notice enter into or upon the said premises, or any part thereof in the name of the whole, and re- possess the same as of his former estate and expel the lessee and those claim- ing through or under him and remove their effects, (forcibly if necessary) ■ without being deemed guilty of any manner of trespass, and without prej- udice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenants, and upon entry as aforesaid this lease shall determine. And it is agreed that in case of a determination of the estate hereby created by an entry for breach of the condition herein contained, the lessee shall indemnify the lessor or his heirs or assigns, for all loss or damage which he may, during the residue of the term above specified, suffer by rea- son of such determination, whether through decreased rent of said estate or otherwise; and it is also agreed that if the leased premises or any part thereof, shall be damaged by fire or other unavoidable casualty, so as to be thereby rendered unfit for use and occupation, then and in such case the rent hereinbefore reserved, or a just and proportionate part thereof, accord- ing to the nature and extent of the injury sustained, shall be abated until the said premises shall have been duly repaired and restored by the lessor or heirs or assigns; or, at the election of the said lessor or legal representatives, this lease may be determined and ended. In Witness Whereof the said parties hereunto, and to another instrument of like tenor, set their hands and a common seal on the day and year first above written. Signed and sealed in presence of 614 liEASES. (297.) , Country Lease, in use in some Western States. This Indenture, Made this day of in the year of our Lord one thousand nine hundred and '. , between {name of lessor) of the of in the County of and State of party of the first part, and (name and residence of lessee) party of the sec- ond part, witnesseth, That the said party of the first part for and in consid- eration of the covenants and agreements hereinafter mentioned, to be kept and performed by the said party of the second part, his executors, adminis- trators, and assigns, has demised and leased to the said party of the second part all those premises situate, lying and being in the township of : County of State of known and described as follows, to wit: (desmfte the premises in such way as to identif]/ them perfectly hy situation, metes, and bounds, or, otherwise). To Have and to Hold the said above-described premises, with the appur- tenances, unto the said party of the second part, and his executors, admin- istrators, and assigns, from the day of L in the year of our Lord one thousand nine hundred and , for and during the term of , and until the day of in the year of our Lord one thousand nine hundred and , paying rent therefor as hereinafter stated. And the said party of the second part, in consideration of the leasing of the premises aforesaid, by the said party of the first part, to the said party of the second part, does covenant and agree with the said party of the first part, and his heirs, executors, administrators, and assigns, to pay the said party of the first part, as rent for the said demised premises, the sum of dollars, annual rent, payable quarterly, in four equal quarterly payments, the first payment to be due and made in three months from the date of this lease, payable at the (here state the place where tTie rent should be paid) . And the said party of the second part further covenants with the said party of the first part, that at the expiration of the time in this lease men- tioned, he will yield up the said demised premises to the said party of the first part, in as good condition as when the same were entered upon by the said party of the second part, loss by fire or inevitable accident, and ordi- nary wear excepted. It is further agreed by the said party of the second part, that neither he nor his legal representative will underlet said premises, or any part thereof, or assign this lease, without the written assent of said party of the first part, first had and obtained thereto. It is Expressly Understood and Agreed by and between the parties afore- said, that if the rent above reserved, or any part thereof, shall be behind or unpaid, on the day and at the place of payment, whereon the same ought to be paid, as aforesaid, or if default shall be made in any of the covenants herein contained, to be kept by the said party of the second part, his execu- FORMS OF LEASES. ■ 615 tors, administrators, and assigns, it shall and may be lawful for the said party of the first part, his heirs, executors, administrators, agent, attorney, or assigns, at his or their election, to declare said term ended, and the said demised premises, or any part thereof, either with or without process of law, to reenter, and the said party of the second part, or any other person or per- sons occupying, iil or upon the same, to expel, remove, and put out, using such force as may be necessary in so doing, and the said premises again to repossess and enjoy, as in his or their first and former estate; and it shall be the duty of the said party of the second part, his executors, administra- tors, or assigns, to be and appear at the said place above specified, for the payment of said rent, and then and there tender and pay the same as the same shall fall due from time to time, as above, to the said party of the first part, or his agent or assigns ; or in his or their absence, if the said party of the second part shall offer to pay the same then and there, such offer shall prevent said forfeiture. And it is expressly understood that it shall not be necessary in any event for the party of the first part or his assigns, to go on or near the said de- mised premises to demand said rent, or elsewhere than at the place afore- said. And in the event of any rent being due and unpaid, whether before or after such forfeiture declared, to distrain for any rent that may be due thereon, upon any property belonging to the said party of the second part, whether the same be exempt from execution or distress by law or not, and the said party of the second part, in that case, hereby Waives all legal rights which he now has or may have to hold or retain any such property, under any exemption laws now in force in this State, or in any other way. Mean- ing and intending hereby to give to the said party of the first part arid his heirs, executors, administrators, and assigns, a valid and first lien upon any and all the goods, chattels, or other property belonging to the said party of the second part, as security for the payment of said rent in manner afore- said, anything hereinbefore contained to the contrary notwithstanding. And if at any time said term shall be ended at such election of said party of the first part, or his heirs, executors, administrators, or assigns, as aforesaid, or in any other way, the said party of the second part, for himself and his executors, administrators, and assigns, does hereby covenant promise, and agree to surrender and deliver up said above-described premises and prop- erty, peaceably, to said party of the first part, or his heirs, executors, ad- ministrators, and assigns, immediately upon the determination of said term as aforesaid; and if he shall remain in the possession of tie same , days after notice of such default, or after the termination of this lease, in any of the ways above named, he shall be deemed guilty of a forcible de- tainer of said demised premises, and shall be subject to all the conditions and provisions above named, and to eviction and removal, forcibly or other- wise, with or without process of law, as above stated. And it is further covenanted and agreed by and between the parties, that the party of the second part shall pay and discharge all costs and attorney's fees and expenses that shall arise from enforcing the covenants of this in- denture by the party of the first part. 616 LEASES. In Testimony Whereof, The said parties have hereunto set their hands and seals the day and year first above written. (Signature of lessor.) (Seal.) '(Signature of lessee.) (Seal.) In Presence of (298.) A Ground Lease. This Indenture, Made this day of in the year of our Lord one thousand nine hundred and , between (name and residence of lessor) party of the first part, and (name and residence of lessee) party of the second part, witnesseth, That the said party of the first part for and in consideration of the covenants and agreements hereinafter mentioned,' to be kept and performed by the party of the second part, hath demised and leased to the party of the second part, all those premises situate in the of in the County of and State of , known and described as follows, to wit (here give such description of the premises as shall identify them, and distinguish them from any other). To Have and to Hold, The above described premises, with the appur- tenances, unto the party of the second part, from the day of in the year of our Lord one thousand nine hundred and for and during, and until the And the party of the second part, in consideration of the leasing of the premises aforesaid, does covenant and agree with the party of the first part to pay to the party of the first part as rent f oir said demised premises, at the oflSce of in the sum of (state the sum to ie paid as annual rent) in four equal quarterly pay- ments, each of them the sum of l_ dollars, to be paid on the first (or other) day of the month of (the four months in which the rent is payable) in each year (or describe otherwise the terms and time's of the payments as they may have been agreed upon) ; and also that the said party of the sec- ond part will pay, or cause to be paid, all water-rates, and all taxes, and as- sessments that may be laid, charged or assessed on said demised premises pending the existence of this lease ; . or if at any time after any tax, assess- ment, or water-rate shall have become due or payable, the party of the sec- ond part, or his legal representatives, shall neglect to pay such water-rates, tax, or assessment, it may be lawful for the party of the first part to pay the same at any time thereafter, and the amount of any and all such pay- ments so made by the party of the first part shall be deemed and taken, and are hereby declared to be, so much additional and further rent, for the above demised premises, due from and payable by the party of the second part; and may be collected in the same manner, by distress or otherwise, as is here- inafter provided for the collection of other rents to grow due thereon. The party of the second part further covenants and agrees that he will, within months from the date of this instrument, erect upon the leased premises a building in accordance with certain plans and specifica- tions made by , architect, identified by the signatures of the respec- tive parties to this instrument, and hereby ^ade by reference a part thereof; which building, and all materials used or to be used in the construction of FORMS OF LEASES. 617 the same which shall at any time during the term of this lease be upon the leased premises, shall at once become the property of the party of the first part, and said building with all its appurtenances of every kind shall from the time when its erection is begun be deemed to be annexed to and become a part of the leased premises and of the freehold estate of the party of the first part therein, subject, however, to the right of the party of the second part to use and occupy the same under the terms and conditions of this lease. And the party of the second part further covenants with the party of the first part, that, at the expiration of the time in this lease mentioned or of any extension thereof, he will yield up said demised premises with all the buildings and improvements thereon to the party of the first part, in as good condition as when the same were entered upon by the party of the second part, or in which they shall be put by the erection of the building herein- before agreed to be placed thereon, loss by fire, or inevitable accident and ordinary.wear excepted. It is further agreed by the party of the second part, that neither he nor his legal representatives will underlet said premises, or any part thereof, or assign this lease, without the written assent of said party of the first part first had and obtained thereunto, nor use or suffer them to be used for any purpose calculated to injure the reputation of the premises, or of the neigh- borhood, or to impair the value of the surrounding neighborhood property for present use or otherwise. . It is Expressly tTiiderstood and Agreed, By and between the parties aforesaid, that if the rent above reserved, or any part thereof, shall be be- hind or unpaid on the day of payment whereon the same ought to be paid, as aforesaid, or if default shall be made in any of the covenants herein con- tained to be kept by the party of the second part, executors, administrators, or assigns, it shall and may be lawful for the party of the first part, or his heirs, executors, administrators, agent, attorney, or assigns, at his or their election, to declare said term ended, and into the said demised premises, or any part thereof, either with or without process of law, to reenter, and the party of the second part or any other person or persons occupying, in or upon the same, to expel, remove, and put out, using such force as may be necessary in so doing, and the said premises again to repossess and enjoy, as of his or their first and former estate; and to distrain for any rent that may be due thereon, upon any property belonging to the party of the second part, whether the same be exempt from execution and distress by law or not ; and the party of the second part, in that case, hereby waives all legal rights which he now has or may have, to hold or retain any such property under any exemption laws now in_ force in this State, or in any other way; meaning and intending hereby to give the party of the first part, his heirs, executors, administrators, agent, attorney, or assigns, a valid and first lien upon any and all the goods, chattels, or other property belonging to the party of the second part, as security for the payment of said rent, in manner aforesaid, anything hereinbefore contained to the contrary notwithstanding. And if at any time said term shall be ended at such election of said party of the first part, or his heirs, executors, administrators, agent, attorney, or assigns. 618 LEASES. as aforesaid, or in any other way, the party of the second part does, hereby covenant and agree to surrender and deliver up said above described prem- ises and property peaceably to the party of the first part, or his heirs, ex- ecutors, administrators, agent, attorney, or assigns, immediately upon the determination of said term as aforesaid ; and if the said party of the second part, or his legal representatives, shall remain in possession of the same one day after notice of such default, or after the termination of this lease, in any of the ways above named, he or they shall be deemed guilty of a forci- ble detainer of the premises, and shall be subject to all the conditions and provisions above named, and to eviction and removal, forcibly or otherwise, with or without process of law, as above stated. And it is further understood and agreed by the said party of the second part, that neither the right given in this lease, to said party of the first part, to collect the rent thdt may be due under the terms of this lease by sale, or any proceedings under the same, shall in any way affect the right of said party of the first part to declare this lease void, and the term hereby created ended, as above provided upon default made by said party of the second part. And the said part of the first part hereby waives his right to any notice from said party of the second part, of his election to declare this lease at an end, under any of its provisions, or any demand for the payment of rent, or the possession of premises leased herein; but the simple fact of the non- payment of the rent reserved shall constitute a forcible entry and detainer -as aforesaid. And said party of the second part further agrees not to remove any build- ings or other improvements from said premises, without written consent of said party of the first part, and that the said second party shall pay and discharge all costs and attorney's fees and expenses that shall arise from enforcing the covenants of this indenture, by the party of the first part. It is Further Understood and Agreed, That, on written notice being given by the party of the second part to the party of the first part, not less than thirty days before the expiration of the term of this lease, this lease shall be extended for the further term of years, the rent for such extended term to be at the rate of dollars per annum, and at the same rate for all such time after the expiration of the term of this lease, or after the expiration of such extension, as the party of the second part shall occupy said premises, whether as tenant at will or at sufferance, or otherwise, and that in case of such extension all the terms and conditions of this lease, so far as applicable, except the right of renewal, shall con- tinue to be in full force and effect. It is Further TTnderstood and Agreed, That all the conditions and cove- nants contained in this lease shall be binding upon tfie heirs, executors, ad- ministrators, and assigns of the parties to these presents respectively. Is Testimony Whereof, The said parties have hereunto set their hands and seals, the day and year first above written. {Signature of lessor.) (Seal.) {Signature of lessee.) {Seal.) Signed, Sealed, and Delivered in Presence of FORMS OF LEASES. 619 (299.) Assignment of Lease and Ground Rent. This Indenture, Made the day of in the year of our Lord one thousand nine hundred and , between (name and residence of the assignor) party of the first part, and (name and residence of the as- signee) party of the second pa;;t, witnesseth. That the said party of the first part, for and in consideration of the sum of dollars, lawful money of the United States of America, unto him in hand well and truly paid by the said party of the second part, at the time of the execution hereof, the receipt whereof is hereby acknowledged, by these presents does grant, bar- gain, sell, assign, release, and confirm unto the said party of the second part a certain indenture, made and executed on the day of iu the year of our Lord nineteen hundred and whereby the said party of the first part leased to one (name of the lessee in the lease here assigned) certain premises therein described as follows (here copy the description of the premises in that lease) reserving a certain rent, payable to said party of the'first part; that is to say (here statei the rent reserved in that lease) payable (here state the times and terms of payment) together with the said rent to the said party of the first part, payable as aforesaid. Together with all right and power of entry and distress and of reentry, and all other the covenants, ways, means, and remedies for the recovery thereof, and all and singular the rights, incidents, and appurtenances what- soever, thereunto belonging, and the reversions and remainders thereof, and all the estate, right, title, interest, property, elaim, and demand whatsoever, of him the said party of the first part, or his legal representatives, either in law or equity, as well of, in, and to the said yearly rent or sum hereby granted and assigned, as also of, .in, and to the said lot or piece of ground, with the appurtenances, for and out of which the same rfent is issu- ing and payable. To Have and to Hold, receive and take, all and singular the hereditaments and premises hereby granted and assigned, with the rights, remedies, inci- dents, and appurtenances, unto the said party of the second part, his heirs and assigns, to and for the only proper use and behoof of him the said party of the second part, his heirs and assigns forever. And the said party of the first part, and his heirs, all and singular the hereditaments and premises hereby granted and assigned, with the rights, remedies, incidents, and ap- purtenances, unto the said party of the second part, and his heirs and as- signs, against him the said party of the first part and his' heirs, and against all and every other person and persons whosoever, lawfully claiming or to claim, by, from, or under him or them, or any of them, shall and will war- rant and forever defend by these presents. In Witness Whereof, The said parties to these presents have hereunto interchangeably set their hands and seals the day and year hereinbefore first written. (Signature of the assignor.) (Seal.) (Signature of the assignee.) (Seal.) Signed, Sealed and Delivered in the Presence of (Witnesses.) 620 LEASES. (300.) A Building Lease. This Deed of Lease, Made and entered into, in duplicate, this day of _, A. D. 19 , between {name of lessor) of County of and State of ^ party of the first part, and {name of lessee) of County of and State of : , party of the second part: Wltnesseth, That the said party of the first part, in consideration of the covenants, agreements, and stipulations hereinafter mentioned, as well as the yearly rent of dollars, to be paid to him in four equal quarterly payments in each year (the first payment to be made on the ^ day of , A. p. 19 ), doth by these presents lease to the said party of the second part for the term of years, which said term begins on the day of , 19 , the following-described lot of land, to wit (here describe tlw premises). . The said party of the second part, for himself and his heirs, hereby cove- nants with said lessor and his heirs to pay said rent as aforesaid, and also to pay all city, county, and State taxes, and all other taxes and demands of every description, nature, or kind whatever, which may from time to time be legally required or demanded of said premises, whether general tax or special tax. Every failure, first, to pay the said rent, or any part thereof, when it is respectively made payable; 'or, second, to pay the said city, cojinty, and State taxes, and all other taxes and demands, or any part thereof (legally required or demanded of said premises, within the year the same shall be- come due, assessed to either said lessor, his heirs or representatives, or to said lessee or his representatives) ; or, third, to keep and perform any of the other covenants, agreements, or stipulations herein mentioned, shall make and create a forfeiture of this lease, and a termination of the term for which the above premises were let, and all the estate hereby conveyed shall be ab- solutely void, if so determined, at any day or time however distant, after such failure, by notice in writing to that effect, given by said lessor, his heirs or assigns, to said lessee or his assigns; which said notice may be~ served by posting a copy or duplicate of the same up at one of the most public places on said premises, or by delivering a copy or duplicate of such notice to said lessee or his assigns. This lease of said premises, or any part thereof, is not to be assigned, under penalty of forfeiture, without the written consent of said lessor, his heirs or assigns. At the expiration of this lease, the said premises to be delivered to said lessor, his heirs or assigns. The said lessee, and all who hold under him, hereby engage to pay double rent for every day they or any one else in their name shall hold on to the whole or any part of said prem- isesj after the expiration of this lease, or after forfeiture, thereof. The said lessee is, under penalty of forfeiture, bound to keep said prem- ises free from any disorderly, bawdy, or gambling establishments, dram- shops, tippling-shops, beer-houses, or any nuisances whatsoever. And in case of any forfeiture of this lease, the said lessor, his heirs and assigns, may FORMS OF LEASES. 621 forthwith take possession of said premises, with all the improvements there- on, and shall be entitled to the same, any custom, usage, or law to the con- trary notwithstanding. All improvements erected on said premises by said lessee or his assigns, or by any one who may claim under them, are bound for the payment of each quarterly instalment of rent, and for the city, county, and State taxes, and all other taxes and demands as aforesaid, and for any arrears of rent or taxes; and in case of the punctual payment of the rent and taxes, as herein specified, the said lessee or his assigns is hereby authorized to remove all such improvements (and no others), at the expiration of this lease, which he or any one who may claim under him, may have erected on said premises during said term. In Testimony Whereof, The parties hereto have hereunto set their hands and seals to duplicate leases the day and year aforesaid. (Signature of lessor.) (Seal.) (Signature of lessee.) (Seal.) In Presence of (301.) A Mining Lease. This Indenture, Made this " day of in the year of our Lord one thousand nine hundred and , between (name and residence of the lessor) of the first part, and (name and residence of the lessee) of the second part, witnesseth. That the said party of the first part,- for and in consideration of the covenants and agreements hereinafter contained on the part of the said party of the second part, and one dollar in hand paid to the said party of the first part, the receipt whereof is hereby acknowledged, has granted and conveyed, and by these presents does grant and convey to the said party of the second part, his heirs, executors, administrators, and assigns, the right of entering in and upon the lands hereinafter described, for the purpose of searching for mineral and fossil substances, and of con- ducting mining and quarrying operations, to any extent he or they may deem advisable, (but not to hold possession of any part of said lands for any other purpose whatsoever) paying for the site of buildings of any kind, necessary thereto, a reasonable rent. The said lands are situated (here state the situation of the premises leased, and describe them by metes and bounds, dimensions, and references to other boundaries, so as to distinguish them perfectly). And the said party of the second part hereby agrees that he or his heirs, executors, administrators, or assigns, will pay or cause to be paid to the said party of the first part, his heirs or assigns, an annual rent of the amount of dollars, in four equal quarterly payments, payable severally on the following days (here state the days when the payments are to be made, or whatever other terms or times are agreed upon) and also covenants that no damage shall be done to or upon said lands and premises, other than may be necessary in conducting said operations. And it is agreed and covenanted by and between the parties hereunto, that this lease shall be and remain in full force and efEect (subject to the proviso hereinafter stated) 622 LEASES. years from the date hereof, and no longer. But the said parties of the first and the second part, each for themselves, their heirs, executors, administra- tors, and assigns, covenant and agree, and this indenture is made vfith this express proviso, that if no minerkl or f oSsil substance be mined or quarried, as now contemplated by said parties, within the period of years from the present time, then these presents, and everything contained herein, shall cease and be forever null and void. In Testimony Whereof, The parties to these presents have hereunto set their hands and seals the day and year first above written. ' (Signature of lessor.) (Seal.) (Signature of lessee.) (Seal.) Signed, Sealed, and Delivered in Presence of (302.) Lease of Land supposed to contain Oil, Salt, or other Minerals. Articles of Agreement, Made and concluded this day of . A. D. 10 , between (name of lessor) of the township of , County of , and State of ■-, party of the first part, and (name and resi- dence of Wie lessee) party of the second part. Witnesseth, That the said party of the first part, for himself and his heirs, executors, administrators, and assigns, for and in consideration of the sum of one dqllar, the receipt of which is hereby acknowledged, and for the further consideration herein- after mentionedj and on account of covenants hereinafter contained, hereby leases to the said party of the second part, his heirs, executors, administra- tors, and assigns, the following-described piece , or parcel of land, situated in the township of , County of , and State, of , bounded and described as follows (describe the premises as in the preceding Form) ; the said land being mor0 fully described in deed of conveyance by (name of the grantor to tho lessor) to the said party of the first part, cbn- taining acres, more or less, for the purpose of boring, mining, and operating for oil, salt, and other minerals on said land, for the term of years. Said second parties to have the exclusive right to mine for oil, salt, and other minerals, on said land, during the continuance of said term ; to have the privilege of taking suflfieient coal and wood for conducting said boring and mining operations, and timber for derricks and mill-frames and for refineries, and the right to erect all necessary buildings upon said premises for carrying on the business of boring for oil, and mining, refining, and storing away oil and other minerals ; and to have the necessary roads to and from any well or wells that may be bored, or any mines; and to have pos- session whenever they shall be ready to commence operations. And in base they are successful in obtaining oil or other minerals, they agree to deliver to the said party of the first part (here state the part or proportion which is to be given to the lessor), of all oil, salt, or other minerals obtained. Said party of tlje first part to find his own barrels, and remove the oil and other minerals belonging to him, as often as required by the second parties. And in case said second parties should not be successful in obtaining oil or other FORMS OF LEASES. 623 minerals, they shall have the right to remove all engines, tools, machinery, and buildings. And further, it is agreed that said second parties have the right to sub-lease said land for the purpose of boring for oil or other min- erals; the said lessee or lessees being granted all the rights and privileges herein, granted to the said party of the second part. Witness our hands and seals this day of , 19 {Signature of lessor.) (Seal.) (Signature of lessee.) (Seal.) Witnesses. (303.) Lease of a rarm, reserving Timber. This Indenture, Made this day of , 19 , between . of , hereinafter called the lessor, which expression shall also include his heirs, executors, and assigns, of the one part, and of hereinafter called the lessee. Which expression shall also include his executors, administrators and assigns, of the other part, witnesseth. That the said lessor doth hereby lease and demise unto the said lessee all that farm and lands in the town of in the county of and State of known as the farm, with the farm house and other buildings thereon, bounded and described as follows, viz: (here insert a de- scription sufficient to identify the property intended to "be leased, hut not necessarily as minute as that required in a deed) ; excepting and reserving out of this demise all timber and other trees, and the right to enter and cut the same: To hold the said premises, except as aforesaid, for the term of years, from the date of these presents; yielding and paying rent therefor, during the said term, the yearly rent of dollars, clear of all deductions, by equal half-yearly payments on the day of and the day of in every year, the first of such payments to be made on the '. day of , 19 And the lessee doth covenant with the lessor that he, the lessee, during the said term will pay all taxes, rates and assessments, now payable, or here- after to become payable in respect of the said premises, on any part thereof; that he will keep the said premises insured against loss or damage by fire in the name and for the benefit of the lessor, in such insurance company as the lessor shall approve; and will, when required, exhibit to the lessor the policy of insurance, and the current year's receipt for the premium therein; that he will keep the said farm-house and buildings, and all things in and about the same, and all fences, ditches, drains, watercourses, gates, fixtures and things upon or about the said farm and lands, in good condition and complete repair, and without any alteration, except such as the lessor shall approve; that he vrill cultivate, manure, and manage the said farm and lands in a fair and proper manner, according to the most approved course of husbandry; that he will, at the expiration or sooner determination of said teira, yield up the said premises to the lessor in such good condition an^ repair, and in *uch fair and proper order as the same are now in; and that the lessor and his agents and workmen, may at all reasonable times dur- ing the said term, enter upon the said premises to inspect the same, and to 624 LEASES. cut and remove timber and other trees; and that he will not assign or un- derlet the said premises, or any part thereof, without the consent in writing of the lessor: Provided always, that on any breach of any of the covenants by the lessee herein contained, the lessor may reenter upon the said prem- ises, and immediately thereupon the said term shall absolutely determine. And the lessor doth hereby covenant with the lessee that the lessee, perform- ing and observing all the covenants by the lessee herein contained, may quietly hold and enjoy the said premises during the said term, without any interruption by the lessor, or any person claiming through him. In Witness Whereof, etc. For another form of farm lease see chapter on Eights of farmers, p. 832. (304.) Assignment of a Lease. , Know all Men by these Presents, That I (_name and residence of as- signor) for and in consideration of the sum of dollars, lawful money of the United States, to me duly paid, by (name and residence of assignee) have sold, and by these presents do grant, convey, assign, transfer and set over, unto the said (name of assignee) a certain indenture of lease, bearing date the day of in the year one thousand nine hundred and made by {name of the lessor in the lease assigned) whereby he leases to me the following-described premises (here describe the premises briefly), with all and singular the premises therein mentioned and described, and the buildings thereon, together with the appurtenances. ■ To Have and to Hold the same unto the said (the name of the assignee) and his assigns, from the day of for and during all the rest, residue, and remainder yet to come of and in the term of years mentioned in the said indenture of lease, and all my rights and privi- leges in and under said lease; subject nevertheless to the rents, covenants, conditions, and provisions therein also mentioned. And I do hereby cove- nant, grant, promise, and agree to and with the said (name' of the assignee) that the said assigned premises now are free and clear of and from all former and other gifts, grants, bargains, sales, leases, judgments, executions, back rents, taxes, assessments, and incumbrances whatsoever. In Witness Whereof, etc. Sealed and Delivered in the Presence of If the landlord 's assent to the assignment be necessary, add : I assent to the foregoing assignment. (Signature of Landlord.) (305.) Application to landlord for Leave to Assign or Underlet. To Pursuant to a stipulation contained in a lease dated wherein the premises therein described were demised by to me for the term of years from the date thereof, I hereby apply to you for license and FORMS OF LEASES. 625 authority to assign said lease (or underlet said premises) to of for the remainder of my term, together with all my interest in said premises. Dated, etc. (306.) Notice to Landlord of Assignment. To. I hereby give you notice that, by an instrument in writing dated . I have assigned to of all my right, title and interest in and to the premises described and demised in a certain lease made by to and dated for the unexpired residue of the term created by said lease. Dated, etc. (307.) Landlord's Notice to Quit for Non-Payment of Rent. State of ^ County of f ®^- ' ^^ — To (name of tenant). You being in possession of the following-described premises, which you occupy as my tenant (here describe the premises suffi- ciently to identify them) in the city (or township) of and county aforesaid, are hereby notified to quit and deliver up to me the premises aforesaid, in fourteen days from this date, according to law, your rent being due and unpaid. Hereof fail not, or I shall take due course of law to eject you from the same. (Witness.) (Signature.) (308.) Landlord's Notice to leave at End of the Term. To (name and address of the tenant). SlE, — You being in the possession of a certain messuage or tenement, with the appurtenances, situate (describe the premises briefly) which said prem- ises were demised to yon by me for a certain term, to wit, from the day of , A. D. 19 , until the ^= day of , A. D. 19 — , and which said term will terminate and expire on the day and year last aforesaid, I hereby give you notice, that ft is my desire to have again and re- possess the said messuage or tenement, with the appurtenances, and I there- fore do hereby require you to leave the same upon the expiration of the said hereinbefore mentioned term. Witness my hand this day of , city of , A. D. 19_ (Signature.) (Witness.) 40 626 liBASES. (309.) Landlord's Notice to Determine a Tenancy at Will. 19 , To (name of tenant). You being in possession of the following-described premises in the town (or city) of , which you occupy as my tenant at win (describing them sufficiently to identify them), are hereby notified to quit and deliver up to me the premises aforesaid (on such a day, stating here, the day as far distant as is made necessary iy the requisite length of notice) according to law, it being my intention to determine your tenancy at will. Hereof fail not, or I shall take a due course of law to eject you from the same. (Signature.) (Witness.) (310.) The Same; Another Form. I hereby give you notice to quit and deliver up to me on the day of , 19 , the premises now held by you as my tenant, at No. , on Street in the city of Dated this day of , 19 — (311.) Same ; Where Commencement of Tenancy is Uncertain. I hereby give you notice to quit and deliver up to me at the expiration of that month (or week, or quarter) of, your tenancy which shall begia next after this date, the premises now held by you as my tenant at Dated, etc. (312.) Tenant's Notice to Terminate Tenancy at Will. I hereby give you notice that on the day of next I shall quit and deliver up possession of the premises at No. in Street in the city of which I now hold of you as tenant. (313.) Lessee's Notice to Tenant to Quit. I hereby notify you that has executed a written lease to me of the premises now occupied by you at No , Street in the city of , for the term of . years from As I desire immediate possession of the said premises, you will please vacate them without delay. FORMS OF LEASES. 627 (314.) Guaranty of Bent under Lease. In coBsiUeration of the execution of the foregoing lease by the lessor, at my request, and of one dollar to me in hand paid, I hereby guarantee the punctual payment of the rent and the performance of all the covenants and agreements on the part of the lesseei in said lease, or in any extension or renewal thereof, demand and notice of default or of non-payment being hereby waived. i Witness my hand and seal this day of ■ , 19 (315.) , Lease in use in the Province of Quebec. On this day, the of in the year of our Lord one thou- sand nine hundred and before the undersigned Public Notary, duly commissioned and sworn in and for the heretofore Province of Lower Can- ada, now the Province of Quebec, in the Dominion of Canada, residing in the city of Montreal, in the said Province, appeared (name, residence, and occupation of the lessor) who declared to have let and leased, and by- these presents doth let and lease, and promise to procure peaceable enjoyment unto (name, residence, and occupation of lessee) present and accepting lease for for, during, and until the full end and terra of to be ac- counted and reckoned on and from the day of the month of in the year (insert a description of the premises leased). With tho whole the said lessee is content and satisfied, having seen and viewed the same. The present lease is thus made for and in consideration of the sum of current money of the said Province of Canada, per year during the said term, which the said lessee does hereby covenant, promise, and agree, and bind and oblige himself to well and truly pay, or cause to be paid, to the said lessor or his legal representatives, in and by even and equal quarterly payments of ; each; the first payment whereof to become due and payable on the day of : now next ensuing, and thus to con- tinue as aforesaid during all the said term; and, in further consideration, that the said lessee shall and doth hereby promise and agree, and bind and oblige himself to pay the railway tax, the park tax, the school tax, tiie water tax, the yearly, assessments of said leased premises, and every other tax, charge, and burden which may be imposed or levied thereon, during the said term; and, further, that the said lessee shall furnish the said leased premises with a suiBoient quantity of household furniture or goods to secure the payment of the said rent, keep the preinises in repairs (reparations loca- tives), during the said term, and deliver the same at the expiration of the present lease in as good order, state, and condition as the same may be found in at the commencement of the same, reasonable tear and wear and accidents by fire excepted. It is expressly agreed by and between the said parties that the said lessee shall not transfer his right in the present lease, or sublet any part or 628 Leases. jjortion of the above rented premises, without the consent, in writing, of the said lessor or his representatives. The said lessee shall not make any alteration in the said leased premises without the consent of the said lessor or his representatives; and, in case any such alterations should be made, then the said lessee shall be bound to put the said leased premises in the same state in which they were at the commencement of the present lease, unless the said lessor prefer that the said alterations should remain, without any compensation being allowed to the said lessee for such alteration. < Should any grosses reparations be deemed necessary in the said leased premises, the said lessee shall permit the same to be performed, without, pre- tending or demanding any reduction in the said rent, damages, interest, or compensation; provided always, that the said repairs be indispensable, and be finished within a reasonable time. \ The said lessee shall, during the said term, conform to the rules and regulations of police, and pay the sweeping of the chimneys of said leased premises during, the said term. The said lestsee shall, during the last three months of the present lease, allow such person or persons as may be desirous of obtaining a lease of the said premises to visit the same, and will suffer handbills for that purpose to be placarded and left on the said premises. The said lessee shall pay all extra premiums of assurance that the com- pany, at which the premises now leased may be insured, shall exact in con- sequence of the business or works done and carried on therein by the said lessee. And for the execution hereof the said parties to these presents have elected domiciles; to wit, "the said lessee at and upon the premises now leased, and the said lessor at his place of residence aboye described, where, etc. Done and Passed at the said city of Montreal, in the office of the said notary, under the number thousand hundred and on the day, month, and year first above and before written, and signed by the said vrith and in the presence of said notary, these presents having been first duly read to the said parties by said notary. (Signatures.) (Seals.) (316.) Lease in use in the Province of Quebec, known as a "Private lease." This Indenture of Lease, Made between (nartie, residence, and occupation of lessor), of the first part, and (name, residence, and occupation of lessee) of the second part, Witnesseth, That the said doth hereby lease for the term of years, from the unto the said hereby present and accepting for that is to say (here describe the premises leased with sufficient distinotness) the said leased premises being well known to the said lessee, he having seen and examined the same before the execu- tion of these presents, and with the said leased premises is content and sat- isfied. This lease is thus made subject to the following stipulations; viz, FORMS OP LEASES. 629 that the lessee shall make all repairs customarily made by tenants, during the present lease, and at the termination thereof shall peaceably surrender the said premises in the like condition as when taken possession of, reasona- ble tear and wear being allowed; that he shall constantly keep the hereby leased premises furnished according to law for the security of the rent here- inafter stipulated; that he shall not make over his interest in the present lease, or sublet the whole or any part of the premises hereby leased, with- out the consent of the lessor being first obtained in writing for that purpose. The said lessee promises to pay the yearly taxes or assessments for and during the said term, at whatever rate or amount or for whatever purpose the same may be levied, school tax and all other taxes and assessments, and perform all the requirements of the police and fire departments, to the per- fect exoneration of the lessor; and during the last three months of the present lease shall allow such person or persons as may be desirous of ob- taining a lease of the said premises, to visit the same at seasonable hours; and shall also permit notices of such intended lease to be put up on the premises. The lessee shall also pay any and all extra premiums levied in consequence of the business that may be carried on by him. It is especially and distinctly understood and agreed by and between the . parties, that the furniture, goods, chattels, and effects of every kind and description belonging to the lessee shall be security for the payment of the rent for the entire term, and shall not be removed from the said leased premises until the rent for the whole term be paid, even if not due, any law, usage, or custom to the contrary notwithstanding, for without this condition the present lease would not have been made; nothing herein contained to be deemed or construed as comminatory or evasive, but of rigor. This lease is further made in consideration of the sum of current money of this Province, which the said lessee binds and obliges himself to well and truly pay to the said lessor or his lawful representatives, in equal monthly payments of , the first payment whereof to be due and payable on the next. Signed in duplicate, at Montreal, this day of in the year of our Lord one thousand nine hundred and in the presence of (Signatures.) (Seals.) (317.) Lease of Land in use in Ontario and Other Provinces. This Indenture, Made the day of in the year of our Lord one thousand nine hundred and , between (name, residence, and occupation of the lessor), the party of the first part, and (name, resi- dence, and occupation of lessee) the party of the second part, Witnesseth, That in consideration of the rent, covenants, and agreements hereinafter reserved and contained, and to be paid, observed, and per- formed by the said party of the second part, his executors, administrators, and assigns, the said party of the first part has damised and leased, and by these presents doth demise and lease, unto the said party of the sec- 630 LEASES. ond part, his executors, administrators, and assigns, all that. certain parcel or tract of land and premises situate, lying, and being (describe premises leased with sufficient distinctness to identify them perfectly). To Have and to Hold the said parcel or tract of land, with the appur- tenances, unto the said party of the second part, his executors, administra- tors, and assigns, from the day of , one thousand nine hun- dred and ., for the term of from thence next ensuing, and fully to be completed and ended, yielding and paying therefor unto the said party of the first part, his executors, administrators, and assigns, the yearly rent or sum of ' . of lawful money of Canada, by equal quarterly pay- ments, on the in each and every year during the said term, the first payment to be made on the day of ' next ensuing the date hereof. And the said party of the second part doth hereby for himself, his heirs, executors, administrators, and assigns, covenant, promise, and agree' with and to the said party of the first part, his heirs, executors, administrators, and assigns, that he, the said party of the second part, his executors, ad- ministrators, and assigns, shall and will well and truly pay, or cause to be paid, to the said party of the first part, his executors, administrators, or assigns, the said yearly rent hereby reserved, at the times and in manner hereinbefore mentioned for payment thereof, without any deduction or abate- ment whatsoever thereout, for, or in respect of, any rates, taxes, and im- positions, assessments, or otherwise; and will, during said- term, discharge and pay all rates, taxes, assessments, and impositions now payable or here- after to become payable in respect of said premises; and also shall and will perform all statute labor in respect of said premises, during the whole of the term hereby granted. Provided always, and it is hereby agreed by and between the said parties hereto, that if, at any time or times during the said term, the said rent, or any part thereof, shall be in arrear and unpaid for the space of thirty days after any of the days or times whereon the same ought to be paid as afore- said, then it shall be lawful for the said party of the first part, his heirs, executors, administrators, or assigns, to enter into and take possession of the premises hereby demised, whether the same be lawfully demanded or not, and the said premises to have again, repossess, and enjoy, as if these pres- ents had never been executed, without the let, hindrance, or denial of him, the said party of the second part, his heirs, executors, administrators, or assigns ; and, further, that the non-fulfilment of the covenants hereinbefore mentioned, or any of them, on the part of the lessee or lessees, shall operate as a forfeiture of these presents, and the same shall be considered null and void to all intents and purposes whatsoever; and also, that the said party of the second part, his executors, administrators, and assigns, shall not nor will, during the said term, grant or demise, or assign, transfer, or set over, or otherwise, by any act or deed, procure or cause the said premises hereby demised or intended so to be, or any part thereof, or any estate, term, or interest therein, to be granted, assigned, transferred, underlet, or set over unto any person or persons whosoever, nor carry on any offensive trade oX FORMS OF LEASES. 631 business on the premises, without the consent in writing, of the said party of the first part, his heirs or assigns, first had and obtained. And tho said party of the second part doth hereby for himself, his heirs, executors, administrators, and assigns, covenant, promise, and agree, with and to the said party of the first part, his heirs, executors, administrators, or assigns, that he, the said party of the second part, his heirs, executors, ad- ministrators, or assigns, will, at the end of the term hereby granted, peacea- bly and quietly surrender and deliver up possession of the said premises hereby demised to the said party of the first part, his heirs, executors, ad- ministrators, or assigns. In Witness Whereof, The parties to these presents have hereunto set their hands and seals the day and year first above written. ( Signatures. ) (^Seals.) Signed, Sealed, and Delivered in the Presence of (318.) Short House Lease in use in Ontario and other Provinces. This Indenture, Made the day of in the year of our Lord one thousand nine hundred and in pursuance of the act re- specting short forms of leases between (name, residence, and occupation of the lessor) hereinafter called the lessor, of the first part, and (name, resi- dence, and occupation of the lessee) hereinafter called the lessee, of the second part, Witnesseth, That in consideration of the rents, covenants, and agree- ments hereinafter reserved and contained on the part of the said lessee, his executors, administrators, and assigns, to be paid, observed, and performed, he the said lessor hath demised and leased, and by these presents doth de- raise and lease unto the said lessee, his executors, administrators, and as- signs, all that certain (describe the premises leased with sufficient minute- ness to define them perfectly). Together with all the rights, members, and appurtenances whatsoever to the said premises belonging or appertaining. To Have and to Hold the said demised premises, with their appurtenances, unto the said lessee, his executors, administrators, and assigns, for and dur- ing the term of to be computed from the day of , one thousand nine hundred and and from thenceforth next ensuing, and fully to be completed and ended, yielding and paying therefor yearly and every year, during the said term hereby granted, unto the said lessor, his heirs, executors, administrators, or assigns, the sum of- dollars of lawful money of Canada, to be payable on the following days and times; that is to say, on the first days of January, April, July and October in each year during the said term, the first of such payments to become due, and be made, on the day of next, and the last of such pay- ments to be made in advance, on the day of payment of rent preceding the expiration of the said term. And the said lessee covenants with the said lessor to pay rent, and to pay taxes, and to repair (reasonable wear and tear, and accidents by fire or 632 LEASES. tempest excepted), and to keep up fences, and not to cut down timber; and that the said lessor may enter and view the §aid repairs; and that the said lessee will repair according to notice, and will not assign or sublet without leave, and will not carry on any business that shall be deemed a nuisance on said premises; and that he will leave the premises in good repair. {If there are any other agreements hetween the parties, they should be inserted here.) And also, that if the term hereby granted shall be at any time seized, or taken in execution, or in attachment, by any creditor of the said lessee, or if the said lessee shall make any assignment for the benefit of creditors, or, becoming bankrupt or insolvent, shall take the benefit of any act that may be in force for bankrupt or insolvent debtors, the said term shall immediately become forfeited, and void, and the full amount of the current rent shall be at once due and payable; and also, that if the said premises be destroyed, or so much injured as to become unfit for occupation, by Are or other casualty, not caused by the wilful default or neglect of the said lessee, his executors, administrators, or assigns, the said term hereby demised shall cease, and the current quarterly rent shall be fully apportioned, and the due proportionate part thereof shall be at once due and payable. Proviso for reentry by the said lessor on non-payment of rent or non- performance of covenants, or seizure or forfeiture of the said term for any of the causes aforesaid ; the said lessor covenants with the said lessee for quiet enjoyment. In Witness Whereof, The said parties to these presents have hereunto set their hands and seals. Signed, Sealed, and Delivered in the Presence of (319.) Lease of Land in use Generally in the British Provinces. This Indenture, Made the day of in the year of oui' Lord one thousand nine hundred and , between {name, residence, and occupation of the lessor) of the one part, and (name, residence, and oc- cupation of the lessee) of the other part, Witnesseth, That for and in consideration of the rents, covenants, agree- ments, and provisos hereinafter reserved and contained, and which by and on the part and behalf of the said , his executors, administrators, and assigns, are to be paid, kept, done, and performed, he the said hath granted, demised, leased, set, and to farm letten, and by these presents doth grant, demise, lease, set, and to farm let, unto the said , his ex- ecutors, administrators, and assigns, all that tract, piece, or parcel of' land situate, lying, and being on lot or township number in the County of , and the Province of , bounded and described as fol- lows; that is to say (here describe the premises leased) containing, by esti- mation, acres, be the same a little more or less, together with all buildings, woods, underwoods, ways, waters, watercourses, profits, commodi- ties, privileges, advantages, and appurtenances whatsoever to the said prem- ises belonging, or in anywise appertaining. FOEMS OF LEASES. 633 To Have and to Hold the said tract, piece, or parcel of land, and prem- ises hereby demised, with their appurtenances, unto the said , ex- ecutors, administrators, and •assigns, from the day of for and during and until the full end and term of years from thence next ensuing, and fully to be complete and ended; subject, nevertheless, to the quit-rents to become due, exceptions, reservations, covenants, easements, and conditions in the original grant or letters-patent of the said premises reserved and contained. Yielding and paying therefor yearly, and in every year during the said term hereby granted, unto the said J , his heirs or assigns, the clear yearly rent or sum of without making any de- duction or abatement whatever for or in respect of any present or future quit-rents, land taxes, or other parliamentary, legislative, colonial, or paro- chial taxes, assessments, payments, or impositions whatsoever, by yearly pay- ments ; that is to ^say, on the day of in ever year, the first payment to become due and be paid on day of And the said doth for himself and his heirs, executors, and administrators, covenant, promise, and agree to and with the said , his heirs and as- signs, in manner following; that is to say, that he the said , his ex- ecutors, administrators, and assigns, shall and will, from time to time, and at all times during the continuance of the term hereby granted, well and truly pay, or cause to be paid, unto the said , his heirs and assigns, the said yearly rent hereby reserved, upon the days and times, and in the manner hereinbefore mentioned for the payment of the same, according to the true intent and meaning of these presents. And also, that he,' the said , his executors, administrators, and assigns, shall and will pay, sat- isfy, and discharge, or cause to be paid, satisfied, and discharged, all and all manner of quit-rents, land ta?es, and other parliamentary, legislative, or parochial taxes, rates, assessments, payments, or impositions whatsoever, now or at any time hereafter during the said term hereby demised, payable, or to become payable, for or in respect of the said premises, or any part of them, or the said yearly rent or any part thereof. Provided always, nevertheless, and these presents are upon this express condition, that if the said yearly rent hereinbefore reserved, or any part thereof, shall be in arrear for the space of after the same ought to have been paid as aforesaid (although no legal or formal demand shall have been made fo» the same), that then, and in every such case, and at all times hereafter, it shall and may be lawful to and for the said , his heirs and assigns, either to sue or distrain for the same, or into or upon the said demised premises, or into any part thereof, in the name of the whole, wholly to reenter, and the same to have again, retain, repossess, and enjoy, as in their former state; and the said and other occupiers and possessors thereof, thereout and from thence utterly to expel, put out, and remove, any- thing hereinbefore contained to the contrary thereof in anywise notwith- standing. And the said for himself, his heirs and assigns, doth hereby covenant, promise, and agree to and with the said , executors, administrators, and assigns, that he paying the said yearly rent hereVy re- served, and performing the covenants and agreements hereinbefore men- tioned and contained, and which on his part and behalf are or ought to be 634 MORTGAGES OF PBE80NAL PROPEETY. paid, done, and perfonned (subject, nevertheless, as aforesaid), shall and may peaceably and quietly have, hold, use, occupy, possess, and enjoy the said hereby demised premises, with the appurtenances, for all the term hereby granted, without the lawful let, suit, trouble, denial, eviction, ejection, interruption, or disturbance whatsoever, of, from, or by the said , heirs or assigns, or of, from, or by any other person or persons lawfully clafanhrg^oriio claim the said hereby demised premises, or any part or parcel thereof. In Witness Whereof, I, the said (name of lessor), have hereunto sub- scribed my name and affixed riiy seal, at on the day of in the year of our Lord ^ (Name of grantor.) (Seal.) Executed and Delivered in the Presence of CHAPTER XXXIII. KOBTGAOES AND PLEDGES OE GOODS AND CHATTELS, OR PERSONAL PROPEETY. Mortgages are now often made of personal property. Any in- strument will answer the purpose, which would suffice as a hill of sale of the property, and which contains, in addition to the words of sale and transfer, a clause providing for the avoidance of it when the debt is paid. I append to this chapter forms for this purpose. When the mortgagor of personal property retained possession, it was formerly doubtful what security the mortgagee had. Now, however, it is generally provided by statute, that the mortgagor may retain possession, if the mortgage be recorded. These instruments should always be recorded according to the provisions of the statute of the State in which they ar>e made ; al- though the general rule would apply to them, that they would operate without record as to all parties having notice or knowl- edge of them. The statutes respecting mortgages of. personal property always provide for an equity of redemption, which is usually very much shorter than that of land. A frequent period is sixty days. The requirements of the statute in respect to notice, foreclosure, etc., must be strictly followed. It used to be thought that a personal mortgage might be made to cover property subsequently acquired by the mortgagor. Thus, a dealer in dry goods would mortgage all his stock. to secure some MORTGAGES 01" PERSONAL PROPERTY. 635 creditor, and provide in the mortgage that it should operate upon all goods subsequently acquired by him. But it is now generally held that such a clause has no effect; because no man can make a mortgage of property which he does not own at the time. Such mortgages are, however, valid as between the parties, and liave been authorized by statute in Georgia and North Dakota, and in Connecticut mortgages of machinery, engines, type, plates, etc., by manufacturing, printing, publishing or .engraving establish- ments may include after acquired or substituted property used in such establishments. We give annexed to this chapter the laws of all the States relating to mortgages of personal property. THE PLEDGE OF PERSONAL PROPERTY. A PLEDGEE is bound to take ordinary (not extreme) care of the thing pledged ; and, if it be lost or injured for want of such care, he is answerable. He cannot use it, except at his own peril ; that is, he is liable for any injury caused by using it, even if it was not his fault. If the thing — as a horse — needs use for its own safety, then the pledgee may use it for this purpose, and is liable only for an injury caused by his negligence. He must account with the pledgor for the income, increase, or profits. One difference between a mortgagee and a pledgee is this : A mortgagee need not take possession, for the mortgagor may re- tain it, and now this is provided for, as we have seen, by record- ing the mortgage. But if a thing is given in pledge, the pledgee must have and keep possession of it. The most important difference is this. A mortgagee may sell and transfer his mortgage, and his transferee may transfer it again, and so on ; and when the debt is paid, the mortgagor re- claims it from whomsoever has it then. But if a pledgee sells the pledge before the debt is due, it is held that he is at once answera- ble to the pledgor for its full value, although the debt be not paid. Some cases of this kind have been carried very far in New York. It is held there, — and on grounds which may perhaps suffice to make it law everywhere, — that if A lends money to B, and takes stocks in pledge, A cannot sell these stocks and keep the proceeds, and replace the stock and return it when the debt is paid. He can do nothing but keep the stock ; and if he sells it, the pledgor may recover at once its full value, and the pledgee will have no security for his debt. In such a ease, a pledgee, be- 636 ' MOETGAGES OF PEE80NAL PEOPEETY. ing sued, offered the testimony of brokers and others to prove a uniform and established usages in the city of New York thus to sell or use pledged stock until the debt was paid ; but the court said the usage was illegal, and refused to receive the evidence. But a contract specifically permitting such sale or use by the pledgee has been sustained in Massachusetts, and a clause to this effect is now frequently inserted in collateral notes. It 'is certain that after the debt is due and payable, and after demand if it be payable on demand, the pledgee may have a de- cree in chancery for a sale of the pledge, or may sell it himself : provided he first gives a reasonable notice to the pledgor, and then sells it, after a reasonable delay, in a proper manner, by a public sale at auction ; and uses all reasonable precautions to get its value, as by advertisement, etc. ; and does not buy it himself, directly or indirectly ; and conducts himself in all respects hon- estly ; and then he must account for the proceeds. Usually the parties agree, when the pledge is given, or after- wards, how the pledge shall be treated, or how sold if not re- deemed, etc. ; and such agreements, if fair and reasonable, are undoubtedly binding on both parties. It is agreed that negotiable paper is excepted from the com- mon rule ; and the pledgee of that may sell or discount it before the debt is due ; and must account for it, or its proceeds, if the debt is paid and the paper redeemed, or for the balance if he ap- plies it to payment of the debt. A loan of stock is not like a pledge of stock, because it author- izes the borrower to sell or pledge it, or use it in any way, at any time ; but he must replace and return the same quantity of the same stock, when it is called for. If he could not thus make use of the stock, the loan of it would be of no benefit whatever to the borrower. But he cannot thus use stock pledged to him, unless by a special agreement which permits this use. A pledgee, who receives a pledge to secure one or more specific debts, cannot retain it to secure other and further debts of the pledgor, unless with his consent. This consent may be express, or implied from words or circumstances which show that such was the understanding of the parties. FOEMS OF MORTGAGES OF PBESONAL PBOPEETY. 637 (320.) A Mortgage of Personal Property. Know all Men by these Presents, That I (name of mortgagor') of the town of , County of . , and State of , for and in con- sideration of dollars, to me in hand paid by (name of mortgagee) of the town of , County of , and State aforesaid, do sell and convey to the said (nam& of mortgagee) the following goods and chat- tels, to wit (list or schedule of the articles, specifying them with sufficient distinctness to malce it certain what they are) warranted free of incum- brance, and against any adverse claims: Upon condition, that if the said (name of the mortgagor) pay to the said (name of the mortgagee) dollars and interest, in year , agreeably to a promissory note of this date, for that ^um, payable to the said (name of mortgagee) or order, with interest, this deed shall be void, otherwise in full force and effect. The aforesaid Parties Agree, That, until the condition of this instru- ment is broken, the said property may remain in possession of the said (name of mortgagor), but after condition broken the said (name of mort- gagee) may at his pleasure take and remove the same, and may enter into . any building or premises of the said (name of the mortgagor) for that pur- pose. ■ Witness our hands and seals this day of , A. D. (Sigriature of mortgagor.) (Seal.) (Signature of mortgagee.) (Seal.) Sealed and Delivered in the Presence of County op 1 State or J^®" Be it Bemembered, That on this day of , nineteen hun- dred and I , before me, the undersigned, Notary Public in and for said County and State, duly commissioned and qualified, c&me , who is known to nie to be the same person whose name is subscribed to the fore- going instrument of writing, as party thereto, and he acknowledged the same to be his act and deed, for the purpose therein mentioned. In Testimony Whereof, I have hereunto set my hand and aflSxed my of- ficial seal, at office, in the city of the day and year last aforesaid. Notary Puilic. (321.) A Mortgage of Personal Property, with Warranty. Know all Men by these Presents, That I, (name and residence of mort- gagor) in consideration of the sum of to me in hand paid by (name and residence of mortgagee) the receipt whereof is hereby acknowledged, have granted, bargained, and sold, arfd by these presents do grant, bargain, and sell, unto the said (name of mortgagee) the following articles of per- sonal property; that is to say (list or schedule). To Have and to Hold all and singular, the said goods and chattels, unto the said (name of the mortgagee) and his executors, administrators, and as- 638 MOETGAGES OF PERSONAL PEOPEETY. signs, to his and their use forever. And I the said mortgagor, for myself and for my executors and administrators, do covenant to and with the said mortgagee, and with his executors, administrators, and assigns, that I am lawfully possessed of the said goods and chattels, as of my own property; that the same are free from all incumbrances, and that I will, and my ex- ecutors and administrators shall, warrant and defend the same to the said mortgagee, his executors, administrators, and assigns, against the lawful, claims and demands of all person^. Provided Nevertheless, That i)E the said mortgagor, his executors or ad- ministrators, shall well and truly pay unto the said mortgagee, his executors, administrators, or assigns, the sum of dollars, in months from the date hereof (or on a certain day, stating the day when the money is to 6e paid) with interest at per cent., then this deed js also a certain promissory note bearing even date herewith, signed by the said mortgagor, whereby he promises to pay the said mortgagee the said sum and interest at the time aforesaid, shall both be void; otherwise shall re- main in full force and virtue. And Provided Also, That until default by the said mortgagor, or his ex- ecutors and administrators, in the performance of the condition ' aforesaid, or of some part thereof, it shall and may be lawful for him or them to keep possession of the said granted property, and to use and enjoy the same; b^t m case of such default, or if the same or any part thereof shall be attached, at any time before payment as aforesaid, by any other creditor or creditors of the said mortgagor, or if the said mortgagor, or his executors or adminis- trators, shall attempt to sell the same, or any part thereof, without notice to the said mortgagee, or his executors, administrators, or assigns, and without his or their assent to such sale in writing expressed, or shall remove the same, or any part thereof, from the place in which they now are, without such notice and assent, then it shall be lawful for the said mortgagee, or his. executors, administrators, or assigns, to take immediate possession of the whole of said granted property, to his and their own use. In Testimony Whereof, I have hereunto set my hand and seal this day of , in the year of our Lord one thousand nine hundred and {Signature.') '^iSeoJ.) Exeouted and Delivered in the Presence of (322.) A Mortgage of Personal Property, with a Power of Sale. Know all Men by these Presents, That I, {name of mortgagor) of the. town {or dty) of , in the County of , and State of ,' in consideration of dollars, to*me paid by {name of mortgagee) of the town {or dty) of ' , in the County of , and State of , the receipt whereof is hereby acknowledged, do hereby grant, bar- gain, and sell unto the said {name of mortgagee) and his assigns, forever, the following goods and chattels, to wit {list or schedule). FORMS OF MORTGAGES OF PERSONAL PROPERTY. 639 To Have and to Hold, All and singular the said goods and chattels unto the mortgagee herein, and his assigns, to their sole use and behoof forever. And the mortgagor herein, for himself and for his hears, executors, and administrators, does hereby covenant to and with the said mortgagee and his assigns, that said mortgagor is lawfully possessed of the said goods and- chattels, as of his own property; that the same are free from all incum- brances, and that he will warrant and defend the same to him the said mort- gagee and his assigns, against the lawful claims and demands of all persons. Provided, Nevertheless, That if the said mortgagor shall pay to the mort' gagee, on the day of , in the year , the sum of dollars, then this mortgage is to be void, otherwise to remain in full force and effect. And Provided Further, That until default be made by the said mortgagor in the performance of the condition aforesaid, it shall and may be lawful for him to retain the possession of the said goods and chattels, .and to use and enjoy the same ; but if the same or any part thereof shall be attached or claimed by any other person or persons at any time before payment, or the said mortgagor, or any person or persons whatever, upon any pretence, shall, attempt to carry off, conceal, make way with, sell, or in any manner dispose of the same or any part thereof, without the authority and permission of the said mortgagee or his executors, administrators, or assigns, in writing ex- pressed, then it shall and may be lawful for the said mortgagee, with or without assistance, or his agent or attorney, or his executors, administrators, or assigns, to take possession of said goods and chattels, by entering upon any premises wherever the same may be, whether in this county or State, or elsewhere, to and for the use of said mortgagee or his assigns. And if the moneys hereby secured, or the matters to be done or performed, as above specified, are not duly paid, done or performed at the time and according to the conditions above set forth, then the said mortgagee, or his attorney or agent, or his executors, administrators, or assigns, may by virtue hereof, and without any suit or process, immediately enter and take possession of said goods and chattels, and sell and dispose of the same at public or private sale, and after satisfying the amount due, and all expenses, the surplus, if any remain, shall be paid over to said mortgagor or his assigns. The exhibition of this mortgage shall be sufficient proof that any person claiming to act for the mortgagee is duly made, constituted, and appointed agent and attor- ney to do whatever is above authorized. In Witness Whereof, The said mortgagor has hereunto set his hand and seal this day of in the year of our Lord one thousand nine hundred and ■— (Signature of mortgagor.) (Seal.) Signed, Sealed, and Deli/oered in the Presence of (323.) Mortgage of Personal Property, with Power of Sale — ^Another Form. Enow all Men by these Presents, That T, {name and residence of mort- gagor) in consideration, of the sum -of -to me paid by {name and 640 MORTGAUES OF PEE80NAL, PEOPEETY. residence of mortgagee) the receipt whereof is hereby acknowledged, have granted, bargained, and sold, and by these presents do grant, bargain, and sell unto the said {name of mortgagee) the following named and described articles of personal property; that is to say {here follows the list or sched- .ule and description of the articles mortgaged). To Have and to Hold, All and singular, the said goods and chattels, unto the said {name of mortgagee) and his executors, administrators, and as- signs, to his and their sole use forever. And I, the said mortgagor, for my- self and my executors and administrators, do covenant to and with the said mortgagee and his executors, administrators, and assigns, that I am law- fully possessed of the said goods and chattels, as of my own property: that the same are free from all incumbrances ; and that I will, and my executors and administrators shall, warrant and defend the same to the said mort- gagee and his executors, administrators, and assigns, against the lawful claims and .demands of all persons. Provided, Nevertheless, That if the said mortgagor, or his executors or administrators, shall well and truly pay unto the said mortgagee, or his ex- ecutors, administrators, or assigns, the sum of in months from the date hereof, together with interest on the same at the rate of per cent, per annum, then this deed, as also a certain promissory note bearing even date herewith, signed by the said mortgagor, whereby he promises to pay the said mortgagee the said sum and interest at the time aforesaid, shall both be void, and otherwise they shall remain in full force and virtue. And Provided Also, That until default by the said mortgagor or his ex- ecutors and administrators, in the performance of the condition aforesaid, or of some part thereof, it shall and may be lawful for him or them to keep possession of the said granted property, and to use and enjoy the same; but in case of such default, or if the same or any part thereof shall be attached at any time before payment as aforesaid, by any other creditor or creditors of the said mortgagor, or if the said mortgagor, his executors or adminis- trators, shall attempt to sell the same or any part thereof without notice to the said mortgagee or his executors, administrators, or assigns, and without his or their assent to such sale in writing expressed; or shall remove the same, or any part thereof, from the place where they now are, without such notice and assent, then it shall be lawful for the said mortgagee, his ex- ecutors, administrators, or assigns, to take immediate possession of the whole of said granted property to his or their own use, and to sell at public auction and dispose of the whole, or of so much of said granted property, as shall produce a sum of money sufficient to pay and discharge the above- mentioned debt or liability, with interest, and all costs and charges of keep- ing and selling the same, and all just and equitable liens then existing there- on, without further notice or demand, except giving days' notice of the time and place of said sale to said mortgaigor or his legal representa- tives; and after the said debt or liability, with interest, costs, charges, and liens, shall be so discharged and satisfied, the surplus of the money arising from said sale and the residue of said granted property, shall be paid and ABSTEACT OF CHATTEL MORTGAGES. 641 restored to said mortgagor or his legal representatives, discharged from all claim under this mortgage. In Testimony Whereof, I, , the said (name of mortgagor) have hereunto set my hand and seal this day of in the year of our Lord one thousand nine hundred and . (Signature.) (Seal.) Executed and Delivered in Presence' of ABSTRACT OF THE LAWS OF THE STATES AND TERRITORIES CONCERNING CHATTEL MORTGAGES. Alabama. — ^Personal property may be mortgaged, but to be good against creditors and purchasers without notice, the mortgage must be recorded in the county where the grantor lives, and also in the county where the property is at the time of conveyance. If removed to another county, the mortgage must be recorded there within three months. Mortgages of personal prop- erty usually contain powers of sale, and are foreclosed according to the pro- visions of the mortgage. Alaska. — Any transferable interest may be mortgaged, but to be valid against creditors possession must be delivered to and retained by the mort- gagee, or an affidavit filed as to good faith. The mortgage must be ac- knowledged, and filed in the office of the recorder of the precinct where the mortgagor is, and in that where the property is. Within thirty days next preceding the expiration of one year from the original filing, it must be re- newed, which has the effect of extending the lien one year. Chattel mort- gages are foreclosed in the same manner as mortgages on real property. If the mortgagor sells the property during the existence of the lien without notifying the purchaser of the existence thereof, he forfeits twice the value of the property sold. Arizona. — All personal property may be mortgaged. The mortgage must set forth the residences of the mortgagor and mortgagee, the sum to be se- cured, the rate of interest to be paid, and when and where payable, an^ both parties must make affidavit that the mortgage is hona fide, and not made to defraud or delay creditors. The mortgage, with the affidavit annexed, must be recorded in the county where the mortgagor lives, and also where the property is situated when there is not immediate delivery and continued change of possession. Foreclosure by notice and sale. Notice must be served on mortgagor, subsequent purchasers and persons having recorded liens, posted in three public places in the county ten days before the sale, and published once in a newspaper in the county. Arkansas. — Chattel mortgages must be acknowledged before some person authorized by law to take acknowledgments, and filed or recorded in the county where the mortgagor resides, and are liens on the property mortgaged only from such time. If filed without being recorded, the lien expires in one year, unless within thirty days before the expiration of the year the mortgagor files an affidavit showing his interest in the mortgaged property and the amount due. After condition broken, suit may be brought on the 41 642 MOETGAGES OF PEESONAL PROPERTY. mortgage, and Judgment rendered for the sale of the property and the re- covery of the debt against the defendant personally. If the property does not bring two-thirds of the appraised value, the sale may be postponed for sixty days, unless the right of appraisal is expressly vpaived in the mortgage. California. — The following' property may be mortgaged: Locomotives, and rolling stock of a railroad company, steamboat machinery, and machinery used by machinists, f oundrymen, and? mechanics, vessels of more than five tons burden, pianos and organs, steam engines and boilers, mining ma- chinery, printing presses and materials, professional libraries, instruments' of surgeons, physicians, surveyors, and dentists, and the instruments, nega- tives, and fixtures of photograph galleries, upholstery and furniture and household goodSj oil paintings, pictures, and works of art, growing crops, wine, fruit brandy, fruit syrup, or sugar and apparatus used in the manu- facture or storage of the same; iron and steel safes, cattle, horses, mules, swine, and sheep, harvesters' threshing outfits, hay presses, and farming im- plements ; abstract systems, books and papers of searchers of records, raisins and dried fruits cured or in process, boxes, fruit graders, drying trays, and fruit ladder. The mortgage is void against creditors, unless accompanied by an affidavit of all the parties that it is made in good faith and without any design to ;defraud creditors, and unless it is acknowledged and recorded in the same manner as a deed of real property in the office of the recorder for the county where the mortgagor resides, and also where the property is situated. Chattel mortgages may be foreclosed, as in the case of pledges by sale after demand ; the mortgagee must give notice of the time and place of sale which must be by public auction ; or he may foreclose by action, and the court by its judgment may direct a sale of the property. Colorado. — The property must be delivered to the mortgagee, or the mort- gage acknowledged and filed or recorded in the county or counties where the property is,- and it is then valid for two years if the mortgage debt does not exceed $2,500, for five years if the debt does not exceed $20,000, and ten years for larger sums. If the amount exceeds $2,500 mortgagee must an- nually file a sworn statement that the mortgage was given in good faith to secure the sum mentioned therein, and the amount due. Mortgage may within thirty days after maturity of original or extension be' extended for two years by filing sworn statement showing amount of payments made and amount unpaid, and that it is still due. When chattel .mortgages are in form of trust deeds, they contain a power of sale by the trustee at public auction, on giving certain notice. Otherwise there is no statute provision in regard to foreclosure. After default the mortgagee has thirty days to take possession of the property, and until possession is taken mortgagor has right to redeem. Mortgage on household goods must be executed jointly by husband and wife. Connecticut. — ^Machinery, engines, or implements situated or used in any manufacturing or mechanical establishment, presses, types, etc., pertaining to a printing establishment, household furniture used in housekeeping, hay in a building, tobacco in the leaf, pianos, organs, and melodeons, and any in- strument used by a band or orchestra, and brick, burned or unburned, in any Mln or brickyard may be mortgaged. The mortgage must be executed, ae- ABSTEACT OF CHATTEL MORTGAGES- 643 knowledged, and recorded in all respects as a deed of land, and, on breach of condition, may be foreclosed by order of court. Delaware. — Chattel mortgages must be acknowledged and recorded within, ten days, and the lien continues for five years. They must be renewed every five years. Mortgages are foreclosed by suit in court. District of Columbia. — Security on chattels is usually taken by deeds of trust, which must be acknowledged and recorded, and which usually confer on the trustee power to sell in case of default after giving notice by adver- tisement. Plorida. — The property mortgaged must be delivered to the mortgagee, or the deed must be executed and acknowledged in the same manner as deeds of real property (see Deeds, etc.), and recorded within ninety days in the office of records for the county where the property is at the time of the ex- ecution of the mortgage. The mortgage is foreclosed, by bill in equity in the circuit court for the county where the property is, except mortgages for less than one hundred dollars, which may be foreclosed in a justice's court. When a mortgage is paid in full, it must be canceled on the records by the mortgagee, and failure to do so for thirty days after written demand is pun- ishable by fine or imprisonment or both. Oeorg'ia. — The mortgage must clearly indicate the creation of the lien, specify the debt and the property to be secured. It must be executed in. presence of, and attested or proved by or before, a notary public or a judge or clerk of court, and recorded in the county where the mortgagor resides, and in the county where the property is, and is valid against third parties only from date of record. To foreclose, the mortgagee must go before some officer of the state authorized to administer oaths (or a commissioner for Georgia, if he be a non-resident), and make an affidavit of the amount due, and that the mortgagor, if a resident of the State, resides in the county where the foreclosure is made, which affidavit shall be affixed to the mort- gage, and the mortgage filed in the office of the clerk of the superior court for the county where the mortgagor resides; and the clerk shall thereupon issue an execution directing the sale of the property. The sheriff shall levy on the property, and after advertising weekly for four weeks, may sell the same. When the debt is not over one hundred dollars, the proceedings may be before a justice of the peace, who may issue execution after notice to the mortgagor, and the constable may sell after advertising sale in three or more public places in his district. Hawaii. — ^All chattel mortgages not accompanied by immediate and con- tinued possession must be acknowledged and recorded in the same manner as conveyances of real estate. Idaho. — Mortgages of personal property must state the residence of the mortgagor and mortgagee, the sum to be secured, rate of interest, and when and where payable, and the mortgagor must acknowledge the instrument and make affidavit that the mortgage is lona fide, and made without design to defraud or delay creditors. The mortgage and affidavit attached must be recorded in the county where 'the property is situated. Foreclosure may be by action, or the mortgaged pVoperty may be sold at sheriff's sale. 644 MORTGAGES OF PERSONAL PROPERTY. Illinois. — ^Mortgages of personal property are not valid unless the prop- erty is delivered to the mortgagee, or the instrument is aclinowledged before a. proper officer, and recorded in the county where mortgagor resides, or if he i* a non-resident, in the county where the property is. The lien expires in three years from the date of record unless within thirty days before the eJP- piration of three years, or the maturity of the debt, the parties file with the recorder and with the justice upon whose docket the acknowledgment was recorded, or his successor, an affidavit setting forth the interest of the mort- gagee in the property, the amount unpaid and when due, by which the li^n is extended for one year longer from the filing thereof, or until the maturity of the debt, not to exceed one year. After default, the mortgage must be at once foreclosed, or the lien will be lost. Chattel mortgages usually contain a power of sale and may be foreclosed in accordance therewith, except mort.^. gages on necessary household goods, wearing apparel, or mechanics' toola, which can be foreclosed only in a court of record. A mortgage by a mar- ried man or woman on household goods must be joined in by wife or hus- band. Notes secured by chattel mortgage must so state. Indiana. — ^If the goods are not delivered, the mortgage must be acknowt edged in the same manner as deeds of real property, and recorded within ten days in the county where the mortgagor lives, or if he, be a non-resident in the county where the property is. There is no strict foreclosure. The mortgagee is entitled to possession of the property on breach of the condi- tion, and may bring an action to recover the same, but the equity of redemp- tion of the mortgagor can be extinguished only by public sale after proper notice, or by sale on foreclosure proceedings. Mortgage of household goods must be foreclosed by suit. Iowa. — Mortgage must be executed and acknowledged like conveyance of real estate, and recorded or filed in county where property is situated, or, if mortgagor be a resident of the State, in the county where the holder of the property resides. Mortgages for the payment of money only, and in which the time of payment is fixed, may be foreclosed by notice and sale. Notice must contain a full description of the property, and the time, place, and terms of > sale, and served on the mortgagor and purchasers froBi him, and on all persons having recorded liens subsequent to the mortgagor, and published in the same manner as in case of sale of property on execution. Mortgage of property exempt from execution must be sighed by both husband and wife. Kansas. — Unless the property be delivered to the mortgagee, the mort- gage, or a copy of it, must be deposited in the office of the register of deeds for the county where the mortgagor resides, or where the property is if he is a non-resident, and, in order to preserve the lien, an affidavit must "be filed within thirty days of the expiration of each two years by the mortgagee, stating that his interest is a continuing one, and the amount then due. After condition broken, the mortgagee or his assignee may proceed to sell the mort- gaged property, or so much thereof as is necessary to satisfy the mortgage, having first given notice of the time and place of the sale by written or printed handbills posted in at least four different places in the township or city in which the property is to be sold, at least ten days before the sale, ABSTRACT OF CHATTEL MORTGAGES- 645 or if the mortgage so provides he may sell at private sale. Mortgage of ex- "empt property must be signed by husband and wife jointly. Promissory notes and other written instruments evidencing conditional sale oi personal property retaining title in vendor until price is paid in full are subject to the same provisions as to record, etc., as chattel mortgages. Kentucky. — Chattel mortgages must be acknowledged, and recorded in the office of the clerk of the court for the county where the mortgagor re- sides. They may be foreclosed by bill in equity. If the mortgagee takes possession for foreclosure, the mortgagor has five years to redeem. Louisiana. — The following property may be mortgaged: lumber, logs, staves, cross-ties, bricks and live stock, all kinds of vehicles, and equip- ments, accessories and parts thereunto belonging, all kinds of machinery, oil well casings, line pipes, drilling rigs, tanks, tank cars, iron and steel safes, adding machines, cash registers, musical instruments, store fixtures and shelving, buildings on leased ground, farming implements, tractors, ships, barges, dry docks or any kinds of water craft or materials to be used in the construction thereof, and all other movable property not specifically named. Mortgage must be in writing, contain a full description of the property, and the time of maturity, and be signed by both parties or their lawful agents or attorneys. To affect third parties without notice it must be passed by notarial act, and deposited forthwith in the office of the Recorder of Mortgages of the parish where the property is then situated, and of the parish where the mortgagor resides. Property must not be removed from the parish without written consent of mortgagee, and, if removed, copy of mortgage must be recorded in parish to which removal is permitted. Maine. — Mortgages of personal property are invalid as to third persons unless property is delivered to mortgagee within ten days after date, or, if undated, within ten days after execution and delivery, and retained by him; or mortgage is recorded within said ten days in the office of the clerk of the city, town or plantation where mortgagor resides. When all mortgagors re- side out of the State, mortgage must be recorded in registry of deeds of registry district where property is when mortgage is made; but if part of mortgagors reside in the State, then where such mortgagors reside. If any mortgagor resides in unorganized place, record must be in registry of "Reg- istry district where such place is located. Mortgage by corporation recorded where it has its established place of business, or, if none in the State, or in unorganized place, then in registry district where property is located. Such mortgages need not be acknowledged. After condition broken, the mort- gagee or his assignee may give the mortgagor written notice of his intention to foreclose, by leaving a copy thereof with the mortgagor, or if he is absent from the State, by leaving such copy at his last and usual place of abode, or by publishing a copy once a week, for three successive weeks, in one of the principal papers of the town where the mortgage is recorded. The notice, with an affidavit of service, or copy of the publication, must be recorded where the mortgage is recorded, and all right of redemption is forfeited in sixty days after such notice is recorded. If the mortgagee is a non-resddent, he must record with such notice his appointment of an agent in the same town, to whom tender or payment may be made. 646 MOETGAGES OF > PERSONAL PEOPERTY. Maryland. — ^Mortgages and bills of sale must contain the names of the parties, the consideration, and a description of the property mortgaged, and an affidavit by the mortgagee that the eonsideratioi), named is true and hong, fide as set forth; they must be signed, sealed, dated, and acknowledged, and recorded, in the county or city where the vendor resides within twenty days after tlie date of the mortgage. The mortgage may be foreclosed by sale under the supervision of a court of equity. Massachusetts. — Chattel mortgages need not be under seal nor acknowl- edged. They must be recorded within fifteen days after date on the records of the city or town where the mortgagor resides, and also in the city or town in which he principally transacts his business. If a non-resident, the mort- gage must be recorded in the city or town where the property is. If it re- quires to, be twice recorded, the second record will be good if made within ten days after the first. A record not made within the time specified is of no effect. The same- provisions apply to bills of sale given as security. If the condition for redemption be in writing it must be recorded with the bill of sale; if oral, a written statement of such condition signed by the mort- gagee must be recorded. The mortgagee or his assigns, after condition broken, may give to the mortgagor written notice of his intention to fore- close the same, which notice shall be served by leaving a copy with the mort- gagor, or person in possession of the property claiming the same, or by pub- lishing it at least once a week, for three successive weeks, in one of the prin- cipal newspapers published in the town or city where the' mortgage is prop- erly recorded, or where the property is situated. The notice, with an affi- davit of service, shall be recorded wherever the mortgage is recorded. Un- less the mortgagor tenders payment of the amount due within' sixty days after such record the right to redeem will be foreclosed. If the mortgage contain a power of sale, the property may be sold in accordance with its terms. Michigan. — If not accompanied by delivery of the property mortgaged, the mortgage or a copy therfeof must be recorded in the office of the clerk of the city or town where the property is situated and also of the city or town where the mortgagor resides, or, if he be a non-resident, where the property is, together with an affidavit that consideration was actual and adequate, and, within thirty days before the expiration of each year, the mortgagee must file an affidavit setting forth his interest in the property. Mortgage by railroad, electricity, gas, telephone or telegraph corporation, must be re- corded in registry of deeds of each county through which lines or property pass, and requires no renewal. Mortgage on stock of merchandise purchased for resale at retail, with affidavit, must also be filed in registry of deeds of country where property is. There are no statute provisions in regard to foreclosure. Each mortgage should contain pro-yisions as to its own fore- closure, which will be carried into effect. In the absence of such provisions, foreclosure will be by proeedings in chancery. A mortgage may be made to cover goods purchased to replace the stock originally mortgaged. Minnesota. — The mortgage must be made in good faith and not for the purpose of hindering, delaying, or defrauding creditors. It must be at- tested by two witnesses, acknowledged and recorded in the registry of ABSTRACT OF CHATTEL MORTGAGES. 647 deeds of the county where the mortgagor resides, or if a non-resident, where the property is situated, or if such place be a city of the first class then with the city clerk, otherwise the mortgagee must have immediate pos- session and maintain such possession until the debt is paid. The lien con- tinues for six years from the date of filing, or, if debt is not then due, for two years after maturity. Mortgage of exempt property must be executed by both husband and wife. Foreclosure must be by public sale in the county where the property is or the mortgage filed. Notice of sale containing names of mortgagor, mortgagee, and assignee, if any, date of mortgage, nature of default and amount due, description of the property, time and place of sale and name of person foreclosing, must be served upon person in possession of the property and mortgagor, if in the county, and posted in three public places in the county at least ten days before the sale. Person foreclosing must within three days after sale file in the oflSce where the mortgage is filed a report, under oath, of foreclosure proceedings, specifying property sold, amount received, amount of costs and expenses and of the disposition of proceeds and amount applied on mortgage debt. Property sold may be re- deemed within two days after sale. Mississippi. — ^Mortgages of personal property must be acknowledged, and recorded in the ofSce of the clerk of the court of chancery for the county where the property is, and are notice to third parties from the date of rec- ord. The mortgage should contain provisions as to foreclosure, sale, etc., and may be foreclosed in accordance with the terms expressed in the same. Missouri. — ^Mortgages are usually in form of deed of trust with power of sale. Unless the property is delivered, the mortgage must be acknowledged or proved and recorded in the county where the mortgagor resides, or, if he be a nqn-resident, where the property is. Mortgages with power of sale may be foreclosed in accordance with such power, and such sale bars the right of redemption. All mortgages in which the debt, exclusive of interest does not exceed one hundred dollars, may be foreclosed by sale of the prop, erty by the mortgagee, he first giving sixty days' notice after default that the property will be sold, and thirty days' notice of the time and place of sale. All other mortgages may be foreclosed by petition to the circuit court. There can be no foreclosure if note is barred by limitation. Montana. — A chattel mortgage must be accompanied by an afBdavit of mortgagee that it is made in good faith to secure the amount named therein, and without design to hinder or delay creditors, and must be acknowledged and filed, with mortgagor's written receipt for copy of mortgage an- nexed, in the office of the county clerk of the county where the property' is situated, and is gobd for two years and sixty days from the date of filing, but within sixty days after expiration of said two years may be renewed for three years by filing an affidavit showing date of mortgage, names of mort- gagor and mortgagee, date of filing, amount of debt secured and amount then due, and that mortgage was not made or renewed to hinder, delay, or defraud creditors or subsequent mortgagees. Mortgage may cover growing crops or crops to be sown, and lien continues after severance from the soil. Foreclosure is the same as in the case of mortgages of real property, but the mortgage may contain a clause authorizing the sheriff to sell the prop- 648 MOETGAGES OF PERSONAL PBOPERTY. erty on default, in whieh ease he may sell in the manner specified in the mortgage. Nebraska. — The property must be delivered, or else the mortgage, or a copy, filed in the oflSce of the county clerk of the county where the mortgagor resides, or, if he be a non-resident, where the property is situated, and ceases to be valid as against creditors, etc., after five years from date of filing. A mortgage with power of sale may be foreclosed by giving at least twenty days' notice of the time and place of sale. The notice shall specify the mortgage, parties, the amount due, and description of the property, and time and place of sale, and shall be published in some newspaper in the county where the property is, or, if no newspaper is published in said county, then by posting up notice in at least five public places in the county, two of which shall be in precinct where sale is to take place. The sale shall be by public auction. If the mortgage contains no power of sale, it may be foreclosed by action. Mortgage of household goods must be signed and ac- knowledged by both husband and wife. Nevada. — Chattel mortgages are allowed for sums not less than one hun- dred dollars. Unless property is delivered to mortgagee, the mortgage must be recorded in the office of the recorder of county where the mortgagor re- sides and also where property is situated and be accompanied by affidavit of both parties that mortgage is made in good faith for debt actually owned by mortgagor, the amount and character of debt, and that same is not made to hinder, delay, or defraud creditors. Foreclosure is by action and decree for sale of property. New Hampshire. — ^Possession must be delivered to and retained by the mortgagee, or the mortgage recorded with the clerk of the town where the mortgagor resides, or if the mortgagor resides out of the State, in the town where the' property is situated. Both parties must make affidavit that the mortgage is made in good faith, and to secure an existing debt. The mort- gagee, at any time after thirty days from the time the condition is broken, may sell the mortgaged property at auction, notice of the time, place, and purposes of the sale being posted at two or more public places in the town in which the sale is to be, at least four days prior thereto. The mortgagee shall notify the mortgagor at least four days prior to the sale. He may pur- chase at such sale, and the mortgagor may redeem at any time before the sale. New Jersey. — ^Unless accompanied by delivery of the property, the mort- gage must be acknowledged and it or a copy thereof, together with an affi- davit of the holder of the mortgage, stating the consideration, and, as nearly as possible, the amount due or to become due thereon, must be filed in the clerk's office for the county where the mortgagor resides, or, if he is a non- resident, in the county where the property is. If there is a registry of deeds in the county, the mortgage must be filed in such registry. After ac- quired property may be included in the mortgage. Foreclosure is usually enforced by sale conducted in the same manner as sales of personal property taken under execution. Foreclosure may also be made by suit in equity. Five days' notice in writing, stating amount due, must be given before fore- closure of mortgage on household goods. ABSTRACT OF CHATTEL MORTGAGES. '649 New Mexico. — AH kinds of. personal property, including growing crops may be mortgaged. Mortgage must be acknowledged in the same manner as a deed of real estate, and filed in office of county clerk where property is, or recorded like deed of real estate, and is good for six years from date of maturity. After condition is broken, the mortgagee may sell the property, or so much thereof as may be necessary, first giving notice of time and place of sale by hand bills posted in four public places in precinct where property is to be sold, ten days before sale. New York. — The mortgage, or a true copy, must be filed in the office of the clerk of the city or town where the mortgagor resides, or, if a non- resident, where the property is, unless the office of the county clerk or reg- ister is in such city or town, in which case it must be filed therein; and every year, within thirty days before the expiration of the same, the mort- gagee must file a copy of the mortgage and an affidavit showing his interest in the property, or a statement describing the mortgage, the date and place of record, and the interest of the mortgagee therein. The mortgagee may take possession of the property after condition is broken, and sell the same either at private sale or by public auction. It is customary to give three days ' public notice if the sale is by auction, and the mortgagor may redeem at any time before the sale, but not after. If the mortgage contains terms or provisions as to foreclosure, sale, etc., the foreclosure will be governed by them. Mortgage on canal craft must be filed in comptroller's office and is valid as long as debt is enf orcible. North Carolina. — Mortgages and conditional sales are not valid unless re- corded in the county where the mortgagor resides, or, if he is a non-resident, in the county where the property is. On breach of condition, if the mort- gage contain a power of sale, the mortgagee may proceed to sell at auction, first giving twenty days' notice at the court-house door as well as in the manner prescribed by the imortgage itself; or the foreclosure may be made by suit in court. If household furniture be mortgaged mortgagor's wife must join. North Dakota. — Unless the mortgagor's acknowledgment is taken, a chat- tel mortgage must be in writing subscribed by the mortgagor in the presence of two witnesses, who must sign as such, and be recorded in the office of the register of deeds of the county in which the property is situated, and is good for three years. Mortgagee must give mortgagor a copy, and receipt for same must be filed with mortgage. A proviso that the mortgage shall cover after acquired property is valid. It may be renewed within ninety days be- fore expiration of three years from date by filing in the office of the register of deeds a copy of the mortgage with a statement of the balance then due, subscribed and sworn to by mortgagor or his agent or attorney. Foreclosure by action, or, if containing a power of sale, by public sale on six days' no- tice if published in a newspaper, or ten days if posted. By giving notice at sale mortgagor may redeem in five days. Ohio. — If the property is not delivered, the mortgage is absolutely void, unless it, or a copy is deposited with the county recorder of the county where the mortgagor resides, or if he is not a resident, then of the county wherein the property is situated when the mortgage is executed, to be kept by him 650 MORTGAGES OF PERSONAL PROPERTY. for the inspection of all persons interested, or to be recorded. The mort- gagee must file with the mortgage a statement, under oath, of his claim in dollars and cents, and that it is unpaid; and a copy of the mortgage and an affidavit showing mortgagee's present interest must be filed within thirty days before the expiration of every three years thereafter. There are no provisions in regard to foreclosure of chattel mortgages as distinguished from others. Any provisions in the mortgage would be carried into effect. The mortgagor is entitled to possession and use of the property. After ac- quired property must be reduced to possession by the mortgagee in order to be covered by the mortgage. Oklahoma. — Mortgage must be signed by mortgagor in presence of two witnesses, and it or a true copy must be deposited in office of register of deeds of county where mortgagor lives or if a non-resident, in county where the property is, or it may be acknowledged and recorded. If merely filed it is good for only three years from date of filing, but may be extended by filing within thirty days before the expiration of the three years a copy of mortgage and affidavit of amount still due. Foreclosure may be by suit, or, under certain conditions by sale after ten days ' notice. Oregon. — Mortgages of personal property must be executed, acknowl- edged, and recorded in the same manner as conveyances of real estate (see Deeds). Every such mortgage is void against subsequent purchasers in good faith, unless there has been immediate delivery and a change of pos- session, or unless it has been duly recorded. After condition broken, the mortgagee is entitled to possession, and he may recover the same by suit. . The mortgage may provide how it shall be foreclosed, in which case that method, and no other, shall be followed. In the absence of any other provi- sion, foreclosure is by action, but where the consideration is less than five hundred dollars, the property may be sold by a sheriff or constable on the written request of the mortgagee. Pennsylvania. — ^Leases of collieries, manufactories, mines, and other prem- ises with the buildings and machinery, may be mortgaged, also iron ore, manufactured iron, boilers, engines, oil, gas, and artesian well supplies, pe- troleum, roofing and manufactured slate, asphaltum, and cement, — in these latter cases for sums not less than one hundred dollars, — ^provided the mort- gage is recorded in the same manner as deeds of real estate. With these exceptions, no mortgages of personal property are authorized by statute. The mortgage must be made in form prescribed by statute, and properly ac- knowledged and recorded. Loans on personal security are mere pledges, and tb" lender must take possession of the property pledged. Philippines. — All personal property is subject to mortgage. Unless pos- session is delivered to the mortgagee the mortgage must be recorded in the office of the register of deeds of the province in which the mortgagor re- sides or, if he is a non-resident, in the province where the property is situ- ated. If the property is in a different province from that in which the mort- gagor resides it must be recorded in both provinces. After condition is broken mortgagor may after thirty days cause property to be sold by public officer in the municipality where the mortgagor resides or where the property is situated, first giving ten days' notice of time, place, and purpose of sale. ABSTEACT OF CHATTEL MORTGAGES- 651 Porto Rico. — Chattel mortgages are not in use in Porto Eico. Rhode Island. — Unless the property is delivered to the mortgagee, the mortgage must be recorded within five days, in the office of the clerk of the town where the mortgagor resides, or wTiere the property is, if he be a non- resident. The mortgagee may take possession after condition is broken. If there are any provisions for a sale in the instrument, the property may be sold in accordance therewith. Eedemption at law may be had at any time within sixty days after breach, unless the property has been sold as above. The equity may be foreclosed by bill in equity. South. Carolina. — ^Property mortgaged must be described in writing or typewriting, not printing, on the face of the mortgage. The mortgage must be proved by affidavit of a subscribing witness and' recorded within ten days in the office of the register of mesne conveyances if in the counties of Charleston, Greenville or Spartanburg, elsewhere with the clerk of court of the county where the mortgagor resides; or, if he be a non-resident, where the property is situated. Mortgages of stock in trade are valid and cover after acquired property substituted for goods sold. Eecording after ten days is notice only as to subsequent creditors or purchasers. Foreclosure by sale after notice posted for fifteen days in three public places in the county where the property is, one of which shall be the court-house door, or after publication for two weeks in the county where the mortgagee resides, unless the mortgagor has otherwise agreed in writing. South Dakota. — Mortgage must be in writing subscribed by the mortga- gor in the presence of two witnesses, who must sign as such, and be filed in the office of the register of deeds of the county in which the property is situated. No acknowledgment is necessary. It must bear a certificate signed by the mortgagor that he has received from the mortgagee a true copy of the mortgage. It is good for three years from the date of filing, but may be extended within thirty days before the expiration of said three years by filing in the office of the register of deeds a copy of the mortgage with a sworn statement of the amount then due. Foreclosure may be by action, or on six days' notice by publication in a newspaper nearest the place of sale. Tennessee. — Mortgages must be acknowledged or proved and registered in the county where the mortgagor resides, or, if he be a non-resident, where the property is situated. If the mortgage contain a power of sale, it may be foreclosed in accordance therewith ; if not, it is foreclosed by bill in equity. Texas. — A chattel mortgage must be filed in the office of the clerk of the county where the mortgagor resides, or, if a non-resident, where the prop- erty is situated. It is foreclosed by suit, and the property is sold under de- cree of the court. If the property is removed from the county without the mortgagee 's consent, the latter is entitled to immediate possession and sale, whether the debt is due or not. Utah. — A chattel mortgage must be accompanied by an, affidavit of the parties that it is made in good faith to secure the sum named, and not in- tended to hinder or delay creditors, and be witnessed, and filed with the recorder in the county where the mortgagor resides, or, if he be a non-resi- dent, where the property is situated. Within thirty days after the expiration 652 MOETGAGES OP PERSONAL PEOPEETY. of three years from date of filing, and within thirty days after the expira- tion of each year thereafter an affidavit of the mortgagee, or his agent, showing his interest in the property and the amount due must be filed. No mortgage is valid for more than five years. If it contain a power of sale, it may be foreclosed by the sale of the property without legal proceedings, pro- vided certain statutory provisions as to notice, etc., are complied with; other- wise the foreclosure will be by suit. Vermont. — Mortgages of. personal property must be recorded in the office of the clerk of the town where the mortgagor resides, or, if he be a non- resident, where the property is situated, and must be accompanied by an affidavit, subscribed by the mortgagor and mortgagee, that the mortgage is made for the purpose of securing the debt specified in the condition thereof, and for no other purpose whatever, and that the same is a just debt, honestly due, and owing to the mortgagee. At any time after thirty days from the time of condition broken, the mortgagee may cause the property to be sold at public auction by a public officer in the town where the mortgagor resides, or where the property is situated, provided notice of the time, place, and pur- pose of the sale has been posted in two or more public places in such town ten days previously, and ten days' notice in writing given to the mortgagor. Any surplus is paid to the mortgagor, or applied on subsequent mortgages, if there be any such. The officer must make return of his doings to be filed and recorded where the mortgage is recorded. Virginia. — Chattel mortgages are executed, acknowledged, and recorded in the same manner as deeds of real estate (see Deeds). Chattel mortgages are usually given as deeds of trust, in which case they may be foreclosed by the trustee according to the terms of the mortgage, without the intervention of the courts. Washington, — A mortgage of personal property must be accompanied by the affidavit of mortgagor that it is made in good faith, and without design to hinder, delay, or defraud creditors, and must be acknowledged and filed within ten days in the office of the county auditor of the county where the property is situated; if for three hundred dollars or more it may also be recorded in the same manner as a deed of real estate. It ceases to be notice unless within two years after it becomes due mortgagee files affidavit of amount due. The mortgagee may on default, or previously if he has rea- sonable ground to believe that the security is endangered, have the property taken and sold by the sheriff. Notice of the time and place of sale and amount due must be served on the mortgagor, and like notice must be given of the sale as of sales on execution. If the right to foreclose or amount due is disputed, the proceedings may be transferred to the district court, or the foreclosure may be made by suit in court in the first instance. West Virginia. — Chattel mortgages require the same formalities as deeds of real estate, must be executed under seal or scroll, acknowledged, or else proved by two witnesses, and recorded in the county where the property is. Chattel mortgages are seldom used, and are foreclosed in court of equity after decree. Deeds of trust usually take their place, and, after default, the trustee may sell the property, after due notice, without recourse to the courts. THE LAW OF PATENTS. 653 Wisconsin. — The mortgage, or a copy, is to be filed in the office of the clerk of the town, city, or village where the mortgagor resides, or if he is a non-resident, where the property is ; and every two years, within thirty days before the expiration thereof, the mortgagee must file an affidavit showing his interest in the mortgaged property. After condition broken, the mortgagee may take possession of the property and at the expiration of five days sell the same, and any surplus over the debt and costs must be returned to the mortgagor. Mortgages of marked logs must be recorded in the office of the lumber inspector of thp district where the marks are recorded. Mortgages of exempt property or household furniture must be signed by the mortga- gor's wife in the presence of two witnesses. Wyoming. — ^A chattel mortgage must be executed and acknowledged like conveyances of real estate, and filed in the clerk's office of the county where the property is situated. It is then valid for six months after the expiration of the term for which it was given, but may at or Before the expiration of the six months be renewed for another year by filing an affidavit setting forth the mortgagee's interest in the mortgage, and may be further rerewed an- nually in the same manner. It is foreclosed by sale at public auction, after three weeks' advertisement of the time and place of such sale. Chattel mortgages may be made to secure future advances. CHAPTER XXXIV. THE lAW OP PATENTS, INCLUDING DESIGNS, TRADE-MARKS, PRINTS AND LABELS. "WHO MAY OBTAIN A PATENT. Section 4,886 of the Revised Statutes of the United States pro- vides that ' ' any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement thereof, not known or used by others in this country before his invention or discovery there- of, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, or more than two years prior to his application, and not in public use or on sale in this country for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by law, and other due proceeding had, obtain a patent therefor." 654 THE LAW OF PATENTS. In ease of the death of the inventor, his legal representatives will be entitled to apply for and receive the patent. Joint inventors are entitled to a joint patent, but neither can claim one separately. An alien may obtain a patent on the same terms as a citizen. Merely conceiving the idea of a machine or improvement is not such an "invention" or "discovery" as will prevent a subse- quent inventor from obtaining a patent. In order to have this effect, the alleged prior invention must have been reduced to a practical form, capable of actual use ; and, in most cases, actual use itself is also held to be necessary. Nor will the fact of prior use or invention abroad prevent the issue of the patent, unless the invention has been patented or de- scribed in some printed publication. As between two rival inventors, however, the rule is that he who first conceives the idea of an invention, and uses reasonable diligence iu reducing it to practice, is the prior inventor as against one whose conception of the idea was later, though he was the first to reduce it to practice. In such case, drawings, models, or even oral descriptions may be used for the purpose of proving the date of the conception of the invention. When two or more persons apply for patents for the same in- vention an "interference" is declared between them. Bach party is required to file a statement under oath, of the date and circumstances of his alleged invention, testimony is taken in sup- port of their respective claims, and a trial is then had before an examiner in the Patent Office to determine which was the first inventor. An interference may be declared even though one of the parties has already obtained a patent. The inventor may employ mechanics to embody his ideas, and may avail himself of their suggestions as to form, and details, if the plan of the invention be his own. An inventor may abandon his invention. By "abandonment" is meant a public use of it with the knowledge and consent of the inventor. If he had knowledge of such use his assent is implied from his silence or the absence of effort to prevent it ; and both knowledge and acquiescence may be inferred from circumstances. Patents are now granted for the term of seventeen years, and confer on the patentee, his legal representatives and assigns, the THE LAW OF PATENTS. 655 exclusive right to make, use, and vend the invention throughout the United States during that time. WHAT MAY BE PATENTED. This is defined in the statute above quoted as "any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement thereof. ' ' The invention must be ' ' new. ' ' By this is not meant that all the parts of a machine or the ingredients of a composition of mat- ter were before unknown. A machine is said to be new in the sense of the patent law when its principles or mode of operation are different from any previously known. A new combination of old parts, producing a new result, or an old result in a new way, is a valid subject of letters patent. It must be ' ' useful. ' ' This means that it must not be harmful, or opposed to the public welfare, but promises some positive ad- vantage. It is an implied requirement, also, that the means em- ployed do actually produce the result attributed to them. The patent is prima facie evidence both of the novelty and util- ity of the invention described in it as against an infringer. It is held that the mere substitution of a new material to pro- duce a known article does not constitute invention, nor does the substitution of a known equivalent for one of the elements of a known combination. A patent cannot legally be granted, or is void if granted, for a mere property or function of matter, a motive power of the elements, or a physical law or force. But any of these being dis- covered, or a new use of any of them, the discoverer or inventor may have a patent for his mode or method of applying it to use. Hence a patent may be taken for a new "process'' or method of producing a certain result, even though the process be carried out by the use of mechanism or other means not in themselves patent- able. But the mere discovery that an old machine can be applied, to a new use, without more, as, for instance, that a machine used for cutting wood can be used to cut iron, will not sustain a patent. If the result of the process be a new product, that also may be patented as a new manufacture or composition of matter, as well as the process. It is of the utmost importance that the description of the in- vention in every patent should be clear and accurate, and that 656 THE LAW OF PATENTS. the claim should cover neither more nor less than the actual in- vention. This is the more important, as the right to surrender and re-issue a patent on account of defects in these respects, has recently been greatly limited by the courts. The claims espe- cially should be drawn with great care, so as to cover all that the inventor is entitled to. We therefore earnestly advise every inventor to employ some skillful and experienced solicitor to procure his patent for him whenever it is possible for him to do so. It sometimes happens, however, that this cannot be done, but as printed copies of the Patent Laws, Rules of Practice and Forms, including full instructions for taking out a patent, can be obtained gratis by writing to the Commissioner of Patents, Washington, D. C, it seems unnecessary to give any further in- structions on the subject. The government fees for a United States patent, when there are no interference: or appellate proceedings, are thirty-five dol- lars, exclusive of solicitor's fees and cost of drawings. Of this amount fifteen dollars are payable when the application is filed, and the balance on the allowance of the patent. FOREIGN PATENTS. The taking out of a patent in a foreign country does not prej- udice a patent previously obtained here ; nor does it prevent ob- taining a patent here subsequently by a person otherwise entitled thereto unless the application for such foreign patent was filed more than twelve months, or in cases of designs four months, prior to the filing of the application in this country, in which case no patent will be granted. An application for a patent in this country by any person who has previously filed an application for the same invention in a foreign country which affords similar privileges to citizens of the United States will have the same force and effect as the same ap- plication would have if filed in this country on the date of first filing of such foreign application, provided the application here is filed within twelve months, or in ease of designs four months, from the date of such foreign application, and provided also that the invention has not been in public use or on sale in this country or been described in a printed publication for more than two years prior to the filing of the application in this country. When THE LAW OF PATENTS. 657 application is made for a patent for an invention which has been already patented abroad, the inventor will be required to make oath, that, according to the best of his knowledge and belief, the same has not been in public use or on sale in the United States for more than two years prior to the application. An applicant who has obtained a foreign patent or patents, should state in what country or countries such patents have been obtained, and the dates and numbers thereof. The reason of this is, that the statute provides that the patent granted in this country shall ex- pire with the foreign patent, or, if there be more than one, at the same time with that having the shortest unexpired term ; and in no case can it be in force more than seventeen years. MARKING PATENTED ARTICLES. The statute provides that "it shall be the duty of all patentees, and their assigns and legal representatives, and of all persons making or vending any patented article for or under them, to give sufficient notice to the public that the same is patented; either by fixing thereon the word 'patented' together with the day and year the patent was granted ; or when, from the charac- ter of the article, this cannot be done, by fixing to it, or to the package wherein one or more of them is enclosed, a label contain- ing the like notice; and in any suit for infringement by the party failing so to mark, no damages shall be recovered by the plaintiff except upon proof that the defendant was duly notified of the infringement, and continued after such notice to make use, or' vend the article so patented." SALES. The statute gives to the patentee the exclusive right of mak- ing, using and selling the patented invention. It has been held, however, by the Supreme Court of the United States that when he has sold a patented article his control over it is at an end, and that he cannot reserve a control over the re-sale or use of the article by fixing a minimum price for such re-sale, or by placing any limitation on its use. ASSIGNMENTS AND GRANTS. A patent may be assigned, either as to the whole interest or any undiArided" part thereof, by an instrument of writing. No 42 658 THE LAW OF PATENTS. particular form of words is necessary to constitute a yalid assign- ment ; nor need the instrument be sealed, witnessed, or acknowl- edged. It is advisable, however, that every assignment be ac- knowledged before a notary public or other proper officer, as the certificate of the latter under his hand and seal is prima facie evidence of the execution of the instrument. A patent will, upon request, issue directly to the assignee or, assignees, of the entire interest in any invention, or to the inventor and the as- signee jointly when an undivided part only of the entire interest has been conveyed. In every case where a patent issues or re- issues to an assignee, the assignment must be recorded at the Patent Office at a date not later than that on which the final fee is paid ; and the specification must be sworn to by the inventor. The patentee may also grant rights tinder the patent to be exer- cised by the grantee only within a specified territory. Every as- signment and every grant of an exclusive territorial right must be recorded in the Patent Office within three months from the execution thereof ; otherwise it will be void as against any sub- sequent purchaser or mortgagee for a valuable consideration without notice ; but if recorded after that time, it will protect the assignee, or grantee, against any such subsequent purchaser whose assignment or grant is not then on record. The receipt of assignments is generally acknowledged by the office. They will be recorded in their turn within a few days after their reception, and then transmitted to persons entitled to them. (324.) Form of Assignment of the Entire Interest in letters Patent before issue, with Bequest that they be issued to the Assignee. Whereas, I, , of , in the County of ^ and State of , have invented certain new and useful improvements in ploughs, for which I am about to make application for letters patent of the United States; and whereas of has agreed to purchase from me all the right, title, and interest which I have, or may have, in and to the said invention, in consequence of the grant of letters patent therefor, and has paid to me, the said the sum of five thousand dollars, the receipt of which is hereby acknowledged: Now this indenture witnesseth, that for and in consideration of the said sum to mepaid, I have assigned and trans- ferred, and do hereby assign and transfer, to the said the full and exclusive right to all the improvements made by me, as fully set forth and described in the specification which I have prepared and executed under date of preparatory to the obtaining of letters patent of the United THE LAW OF PATENTS. 659 States therefor. And I do hereby authorize and request the Commissioner of Patents to issue the said letters patent to the said as the assignee of my whole right and title thereto, for the sole use and behoof of the said and his legal representatives. In Testimony Whereof, I have hereunto set my hand and affixed my seal this day of , 19 (Signature.) (Seal.) Executed and Delivered in Presence of (325.) Form of Assignment of Patent or of an Undivided Interest therein. To ALL WHOM IT MAY CONCERN : Whereas, of in the County of and State of _^_ did obtain letters patent of the United States for , which letters patent bear date and are numbered (If the as- signment is made by an assignee add, and whereas is now sole owner of said letters patent, or of a one-half interest in said letters patent as the case may be.) And Whereas, is desirous of acquiring an interest therein : Now this indenture witnesseth that in consideration of the sum of . in hand paid, the receipt of which is hereby acknowledged, I, the said , have assigned, sold, and set over, and do by these presents assign, sell, and set over unto the said all (or one-half, as the case may be) the right, title, and interest I have in and to the said letters patent and the in- vention thereby secured. The same to be held and enjoyed by the said for his own use and behoof, and for the use and behoof of his legal representatives, to the full end of the term for which said letters were granted, as fully and entirely as the same would have been held and enjoyed by me had this assignment and sale not been made. In Testimony Whereof, I have hereunto set my hand and affixed my seal this day of , 19 — (Signature.) (Seal.) Sealed and Delivered in Presence of (326.) Form of a Grant of a Territorial Right in a Patent. Whereas, I, of in the County of and State of _, did obtain letters patent of the United States for which letters patent bear date the day of , — , 19 — ; and' whereas of is desirous of acquiring an interest therein; Now this indenture witnesseth, that for and in consideration of the sum of two thou- sand dollars, to me in hand paid, the receipt of which is hereby acknowl- • edged, I have granted, sold, and set over, and do hereby grant, sell, and set over, unto the said all the right, title, and interest which I have in 660 THE LAW OF PATENTS. the said invention, as secured to me by said letters patent, for, to, and in the several States of New York, New Jersey, and Pennsylvania, and in no other place or places; the same to be held and enjoyed by the said for his own use and behoof, and for the use and behoof of his legal represent- atives, to the full end of the term for which said letters-patent are granted {if it is intended to grant for any extended term, then add — and for the term of any extension thereof), as fully and entirely as the same would have been held and enjoyed by me had this grant and sale not been made. In Testimony Whereof, I hereunto set my hand and affix my seal this day of , 19 {Signature.) (Seal.) Sealed and Delivered in Presence of LICENSES. The patentee or any assignee of the patent or of any undivided interest therein may license others to practice the invention to any extent, and the grantee of a territorial interest may do the same within the limits of the territory granted to him. Such licenses should be made in writing, but this is not abso- lutely essential. The statute does not require that licenses should be recorded although it is common to do so. ~ No special form is prescribed for licenses, and their terms will vary according to the special contract between the parties. The following forms, however, may be useful as guides : (327.) License — Shop Eight. In consideration of the sum of fifty dollars paid by the firm of S. J, & Co., of L., in the county of M. and State of N., I do hereby license and empower the said S. J. & Co., to manufacture in said L., the improvement in ' cotton seed planters, for which letters patent of the United States No. 71,846 were granted to me, November 13, 19 , and to sell tha machines so manu- factured throughout the United States, to the full end of the term for which said letters patent are granted. Signed at L. aforesaid this 22d day of April, 19 A. B. (328.) License — not Exclusive — ^with Royalty. This Agreement, Made this 12th day of September, 1900, between A. B. of L., in the County of M. and State of N., party of the first part, and C. ' D. & Co. of O., in the County of E. and State of S., party of the second part, witnesseth, that whereas letters patent of the United States No. 87,540, for THE LAW OF PATENTS. 661 an improvement m horse rakes, were granted to the party of the first part, dated October 4, 19 , and whereas the party of the second part is desirous of manufacturing horse rakes containing said patented improvement. Now therefore the parties have agreed as follows : 1. The party of the first part hereby licenses and empowers the party of the second part, subject to the conditions hereinafter named, to the end of the term for which said letters patent were granted, to manufacture horse rakes containing the patented improvements and to sell the same within the United States. 2. The party of the second part agrees to make full and true returns to the party of the first part, upon the first days of July and January in each year, of all horse rakes containing the patented improvement manufactured by them. 3. The party of the second part agrees to pay to the party of the first part five dollars as a license fee upon every horse rake manufactured by said party of the second part containing the patented improvements, said pay- ments to be made within ten days after the days above provided for the semi- annual returns. 4. Upon failure of the party of the second part to make returns or to make payment of license fees, as herein provided for, thirty days after the days herein named, the party of the first part may terminate this license by serv- ing a written notice upon the party of the second part ; but the party of the second part shall not thereby be discharged from any liability to the party of the first part for any license fees due at the time of the service of said notice. In Witness Whereof, The parties above named have hereunto set their hands the day and year first above written. A. B. C. D. & Co. THE DOMINION OP CANADA. The Patent Law of the Dominion of Canada in its leading prin- ciples and purposes is very similar to the law of the United States. The principal differences are as follows : The Patent Office is a part of the Department of Agriculture. There is a Commissioner of Patents, • and applications for any purpose connected with patents must be made to him. No inventor can have a patent if his invention has been in pub- lic use or on sale more than a year in Canada, previous to his ap- plication, with the consent of the inyentor. Nor if a patent for the same exists in another country more than twelve months previous to application. If, during said twelve months, any per- son begins to manufacture the article in Canada, he shall have the right to continue the same. Applicant must elect a domicile in Canada for the purposes of his patent, and declare the same in 662 THE LAW OF PATENTS. his petition. The article, after one year, must be made ih Can- ada, and not imported ; and the manufacture must begin within two years from the granting of the patent ; but these limits may be extended by the Commissioner. The patent is granted for six, twelve or eighteen years, at option of applicant. DESIGNS. Patents for Designs are provided for by section 4929 of the Revised Statutes of the United States, as follows : ' ' Any person, who by his own industry, genius, efforts, and ex- pense, has invented or produced any new and original design for a manufacture, bust, statue, alto-relievo, or bas-relief ; any new and original design for the printing of woolen, silk, cotton, or other fabrics; any new and original impression, ornament, pat- tern, print, or picture, to be printed, painted, cast, or otherwise placed on or worked into any article of manufacture; or any new, useful, and original shape or configuration of any article of manufacture, the same not having been known or used by others before his invention or production thereof, or patented or de- scribed in any printed publication, may upon payment of the fe'e prescribed by law, and other due proceedings had, the same as in cases of inventions or discoveries, obtain a patent therefor. ' ' Patents for designs may be granted for the term of three years and six months, or for seven years, or for fourteen years, as the applicant may in his application elect. The fee for a design patent for three and one-half years is ten dollars, for one for seven years fifteen dollars, and for fourteen years thirty dollars, payable in each case when the application is filed. In all other cases in which fees are required the same raties are charged as in the case of patents for inventions or discoveries. The proceedings on applications for patents for designs are substantially the same as in those for inventions or discoveries. Forms and Rules of Procedure can be obtained by application to the Commissioner of Patents. The specification must distinctly point out the characteristic features of the design and carefully distinguish between what is old and what is claimed to be new. The design must be represented by a drawing made to conform to the rules laid down for drawings of mechanical inventions. TRADE-MARKS. 663 TRADE-MARKS. By the common law a merchant or manufacturer is entitled to the exclusive use of a "trade-mark" to designate his goods, provided he has used it so long that it has become generally recog- nized as his. • The trade-mark may consist of words, letters, figures, or draw- ings, or a combination of two or more of them. It must, however, indicate only the origin or ownership of the goods to which it is applied, and not be descriptive of their char- acter, quality, or composition. Thus, for example, a miller may mark his flour with the figure of an eagle or with the name of his mill, and these marks will after a time be recognized as indicating that the flour so marked is made by him or at his mill. But he cannot appropriate to his exclusive use such words as "snow white," "superfine," "family flour," or any other de- scriptive term, as any other person manufacturing a similar ar- ticle has a right to describe it by any appropriate language. So the name of the place where a manufacturer carries on busi- ness cannot be so appropriated as to prevent others in the same place from using it in connection with their goods. No one will, however, be permitted to represent his goods as the goods of another, by imitating the latter 's labels, descrip- tions, or, peculiar methods of putting up his goods, even if the latter do not strictly constitute a trade-mark ; and in all cases of this kind it is enough for the plaintiff to show that the imitation is sufficiently close as to deceive the public, although there be dif- ferences in the details. If, however, the plaintiff is himself defrauding the public by falsely describing the character, quality, or composition of his goods, or when the articles themselves are injurious in their char- acter, he can claim no assistance from a court of equity. A trade-mark may be sold and assigned 'wnth the business with which it is connected or the factory where the goods are made to which it is applied. In the settlement of partnership affairs, or in connection with the sale of the good will of a business, it is often an item of great value. The Act of February 20, 1905, as subsequently amended, pro- vides for the registration in the Patent Office of trade-marks used 664 THE LAW OF PATEffTS. in commerce ■v^ith foreign nations, or among the several States, or with Indian tribes. A trade-mark may be registered by any person, firm or cor- poration, domiciled within the territory of the United States, or residing or located in any foreign country which affords similar privileges to citizens of the United. States, or by the owner of a trade-mark resident or located in a foreign country when used on the products of a manufactory in this country belonging to such owner. No trade-mark will be registered which consists of or comprises immoral or scandalous matter, or represents the flag or coat of arms or other insignia of the United States or of any State, mu- nicipality or foreign nation, or any emblem of a fraternal society, or any name, character, emblem, flag, banner, etc., adopted by ' any organization in any State and adopted and publicly used by such organization prior to date of adoption and use by applicant, or which is identical with a trade- mark now in use by another and appropriated to merchandise of the same descriptive prop- erties, or so nearly resembles such a trade-mark that it will tend to confuse the public or deceive purchasers. No trade-mark which consists merely in the name of an individual, firm, cor- poration or association, not written, printed, impressed, or woven in some particular or distinctive manner or in association with a portrait of the individual, or merely in words or devices which are descriptive of the goods with which they are used, or of the character or quality of such goods, or merely a geographical name or term, or one used in any unlawful business or on any ar- ticle injurious in itself, or used with the design of deceiving the public, or one which has been abandoned, will be registered. No portrait of a living individual may be registered as a trade-mark, except by the consent of such individual, evidenced by an instru- ment in writing. Nothing, however, shall prevent the registra- tion of any mark which has been in actual and exclusive use as a trade-mark for ten years next preceding February 20, 1905. If the applicant is resident in a foreign country his statement must set forth that the trade-mark has been registered or application filed in that country, with the date thereof. Application for registration of a trade-mark previously registered in a foreign country affording similar privileges to citizens of the United States, if filed in this country within four months, shall have TBADE-MAEKS. (5g5 same force and effect as if filed on the date of foreign application. "Where an applicant for a trade-mark does not reside in the United States, he must designate by a notice in writing, filed in the Patent Office, some person residing within the United States on whom process or notice of proceedings may be served. In case of conflicting applications for registration of a trade- mark, or in any dispute as to the right to use the same, the Office will declare an interference, and the proceedings for interference between applications for patents will be followed as nearly as practicable. Any person who believes he would be damaged by the registration of a trade-mark can oppose the same by filing in duplicate a written notice of opposition verified by the person under oath. Any person believing himself injured by the regis- tration of a trade-mark can apply to have such trade-mark can- celed, such application to be in duplicate under oath. The term of a trade-mark is twenty years, with privilege of renewal for the same term on an application made not more than six months before its expiration. Those trade-marks granted before April 1, 1905, remain in force for the original term granted, and then may be. renewed for twenty -year terms as with original applications. The fee payable on an original applica- tion for registration is ten dollars, and the same ia each applica- tion for renewal. Trade-marks may be sold and assigned with the good will of a business, but the sale or assignment must be made by instru- ment in writing duly acknowledged according to the laws of the country or State in which the same is executed. The assignment must be recorded within three months from the date. A register of a trade-mark must give notice to the public that the trade-mark is registered, either by affixing thereon the words "Registered in U. S. Patent Office," or "Reg. U. S. Pat. Off.," or, when that cannot be done, by putting same words on a label placed on the packages or receptacles. No suit can be brought for infringement of a trade-mark unless this public notice is given, unless proof is offered that the defendant was duly notified of infringement and continued to use the same after such notice. The Circuit and Territorial Courts of the United States and the Supreme Court of the District of Columbia have original ju- risdiction of all suits at law or in equity representing trade- marks registered under the act, without regard to the amount in 666 THE LAW OP PATENTS. controversy. Eecovery on a judgment includes profit accruing to defendant and damages sustained by complainant. The sev- eral courts may grant injunctions pending suits, and may in- crease said judgment not exceeding three times the amount of the verdict, and may order copies and represeiitations of in- fringing trade-marks destroyed. In assessing profits, the plaintiff is required to prove the de- fendant's sales only. The defendant, on the other hand, must prove all elements of cost which are claimed. Imported goods bearing foreign trade-marks injuriously imi- tating United States trade-marks "vvill be refused entr^ at all United States custom-houses; and to prevent their entry, each owner of a trade-mark should lodge with the Commissioner of Patents a copy and description of it, copies of which will be for- warded to each collector or other proper officer of customs. PRINTS AND ISABELS. The Act of Congress of June 18, 1874 (18 Statutes at Large, p. 78), provides for the registry of prints and labels in the Patent OfSce. Under the rules of the office the distinction between the two is that a label is intended to be impressed upon or affixed to an article or to the receptacle containing it, while a print is not. Only such prints or labels as properly belong to an article of manufacture and are descriptive thereof can be registered. A print or label may be registered by the proprietor who is a citizen of the United States, by an alien domiciled in the United States, by the citizen of a country granting similar rights to citizens of the United States, or by the proprietor by assignment from some other person entitled to register. The application must be accompanied by ten copies of the print or label, and a registry fee of six dollars. (329.) Form of Application for Registration of Prints and Labels. To THE Commissioner op Patents : The undersigned __, a citizen of the United States (or subject, etc.), residing at _, and doing business at , hereby applies as au- thor (or proprietor,' and if the latter, give name and citizenship of author) for registration of the print (or laiel) shown in the aeeompanying copies, ten of which are furnished. The print (or label) was first published with THE LAW OF COPYRIGHT. 667 Notice of Copyright thereon on ; its title is , and it is used for advertising purposes for (or if a label, used on) (kind of goods) .' Author or Froprietdr. Before filing the application the print or label must be pub- lished, — which in this connection means, publicly used or sold — with a notice of copyright thereon, consisting of the word "Copy- right, " or " Cop 'r, ' ' the name of the proprietor and the year of publication. This notice of copyright must also appear on every copy of the registered print or label subsequently used or sold. The certificate of registration will continue in force twenty- eight years, but may be renewed. Prints and labels are assignable by written instrument signed by the proprietor. Copies of the acts, relating to the registration of Trade-marks, Prints and Labels, with Forms and Rules of Procedure can be obtained by applying to the Commissioner of Patents. CHAPTER XXXV. COPYRIGHT. The law of copyright is regulated by the Act of Congress of March 4, 1909 (35 Statutes at Large, Chap. 320), and subse- quent minor amendments thereto. The subjects of copyright may be books, including composite and cyclopaedic works, directories, gazetteers and other compila- tions ; periodicals, including newspapers ; lectures, sermons, ad- dresses prepared for oral delivery ; drama1;ic or dramatic -musical compositions; musical compositions; maps; works of art, models or designs for works of art ; drawings or plastic works of a scientific or technical character ; photographs ; prints and pic- torial illustrations; motion pictures, photo plays, and motion pictures other than photo plays. The Act grants to the author or proprietor the exclusive right to print, re-print, publish, copy and bind the copyrighted work; 668 THE LAW OF COPYRIGHT. to translate it, if it be a literary work, into other languages, or make any other variation thereof; to dramatize it or convert a drama into a novel or other form ; to arrange or adapt it, if it be a musical work ; and to complete and execute it if it be a model or design for a work of art ; to deliver or authorize the delivery of it in public for profit, if it be a sermon, address or similar pro- duction ; to perform or represent it, if it be a dramatic work not reproduced in copies for sale ; to vend any transcript or record thereof, and to make any transcript or record thereof for per- formance or representation ; to perform it publicly for profit if it be a musical composition, and for purposes of publication to make any arrangement or setting of it or of the melody, in any system of notation or record by which it may be re-produced. When, however, the owner of a musical copyright has per- mitted the use of the work on parts of instruments, by which it is reproduced mechanically, any other person may make a like use of it by notifying the owner and paying him a royalty of two cents for each of such parts. Compilations, abridgements, translations, etc., of works in the public domain, or of copyrighted works when produced with the consent of the owner of the copyright, or works republished with new matter, are regarded as new works subject to copyright, but without affecting the force or validity of any subsisting, copy- right on matter employed therein. A foreign author or proprietor may have a copyright upon the same terms as a citizen ; but only if he be domiciled in the United States at the time of the first publication of his work, or when the nation of which he is a citizen or subject grants to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or protection equal to that secured to the foreign author by copyright act or treaty of the -United States, or when such nation is a party to an international agree- ment providing for reciprocity in granting copyrights to which agreement the United States may become a party. Copyright is secured by publication of the work, with notice of copyright consisting of the word " Copyright, ", or the abbrevia- tion ' ' Copr., ' ' accompanied by the name of the proprietor, and, in a printed literary, musical or dramatic work, the year in which the copyright was secured by publication. In case of a book or other printed publication the notice is to be printed on the title THE LAW OF COPYRIGHT. 669 page, or page immediately following, and of a periodical on the title page or the first page of each separate number or under the title heading, or if a musical work on the title page or first page of music. Such notice, must be affixed to each copy offered for sale. In ease of maps, prints, photographs, works of art, etc.,' the notice may consist of the letter " C " enclosed within a circle, accompanied by the initials, monogram, mark or symbol of the copyright proprietor, provided that his name shall also appear on some accessible part of the work. After publication there must promptly be deposited in the Copyright Office, or sent by mail addressed to the Eegister of Copyright, "Washington, D. C, two complete copies of the best edition of the work, or, in case of a contribution to a periodical, for which special registration is requested, one copy of the issue or series containing such contribution, accompanied by an affi- davit setting forth that the type from which the work was printed was set up, or the plates etc., made in the United States, and that the printing and binding were done there. Such affi- davit is not required as to books of foreign origin in languages other than English, or works in raised characters for the blind, or books published abroad in the English language seeking in- terim protection. Copyright of works of which copies are not reproduced for sale may be had by deposit, with claim of copyright, of one complete copy of the work, or a photographic print if the work be a photo- graph, or a photograph or other identifying representation if it be a work of art, or a plastic work or drawing. In case of books published abroad in the English language be- fore publication in this country, an interim copyright may be se- cured by deposit in the Copyright Office, within thirty days after publication, of one complete copy of the foreign edition, with re- quest for reservation of copyright, and statement of name and nationality of author and copyright proprietor and date of pub- lication. "Whenever within said time said book shall be published in the United States, and the other requirements of the Act as to deposit of copies, registration, etc., are complied with, the copy- right shall be extended to the full term. In the case of each entry the person recorded as claimant of the copyright, on payment of a fee of one dollar — or fifty cents 670 THE LAW OF COPYRIGHT. in case of a photograph — is entitled to a certificate of registration under seal of the Copyright Office. The original term of a copyright is twenty-eight years but pro- vision is made in the Act for an extension for the further term of twenty-eight years, and for an extension of copyrights in exist- ence at the date of the Act for a term not exceeding with the original term fifty-six years. Copies of the Copyright Act with full directions for securing a copyright, forms of application land other necessary papers will be furnished, gratis, on application to the Register of Copyrights, Washington, D. C. A copyright is assignable by an instrument in writing signed by the owner — and, if executed abroad, acknowledged before a consular officer or secretary of legation — and recorded in the Copyright Office within three calendar months after its execution in the United States, or within six months after execution if ex- ecuted abroad. , In case of infringement the Act provides remedies by injunc- tion, the payment of specified damages and the surrender of piratical copies. Wilful infringement of copyright for profit, and fraudulently marking works as copyrighted which are not so, are also punisha- ble by fines. The importation from abroad of copyrighted books not printed or manufactured in the United States is forbidden except in the following cases: (a) works in raised characters for the blind; (b) foreign newspapers or magazines containing matter author- ized by owner of copyright ; (c) the authorized edition of a book in a foreign language of which only a translation has been pub- lished in this country; (d) any book published abroad with au- thorization of owner of copyright as follows, (1) when imported, not more than one copy at a time, for individual use and not for sale, provided it be not a foreign reprint of a book by an Ameri- can author copyrighted in this country, or (2) when imported by authority or for use of the United States, or (3) when im- ported for use and not for sale, not more than one copy in an in- voice, for any society or institution incorporated for educational, literary, philosophical, scientific or religious purposes, or for the encouragement of the fine arts, or for any college, academy, school or seminary' of learning,, or for any State, school, college,' uni- AGREEMENT BETWEEN AUTHOR AND PUBLISHER. 671 "versity, or free public library in the United States, or (4) when such books form parts of libraries or collections purchased en Hoc for the use of societies, institutions, etc., above enumerated, or form parts of the libraries or personal baggage belonging to persons arriving from foreign countries and not intended for sale. It is held that letters may be the subject of copyright ; but the right of publication belongs to the writer and his representatives, and not to the receiver, who has, at most, only a special property in them. It has also been held by the Supreme Court of the United States that the control of the owner of copyright over a copy- righted volume ends when the book is sold, and that a condition imposed upon the purchaser that he shall have the right to sell it only at a fixed price is void. A Canadian copyright may be taken out by ' ' any person resi- dent in Canada, or any person, being a British subject and resi- dent in Great Britain or Ireland. The book must be printed and published in Canada. (330.) Agreement between Author and Publisher. — Short Form. This Agreement, Made this day of , in the year 19 , by and between {Tiame of author) and {name of publisher) witnesseth as fol- lows: The said {name of author) being now preparing a work, to be called {or on the subject of ) to be in volume hereby agrees and promises to complete the same for the press as rapidly as prac- ticable, and to sell to the said {nwme of the publisher) for the sum of dollars, to be paid as hereinafter mentioned, the exclusive right of printing, publishing, and selling the first edition thereof, to consist of copies. The copyright of said work to be secured and retained by said {name of author) as author and proprietor. And the said {name of publisher) hereby agrees and promises to publish said edition of ' copies, and to pay to said {name of author) the said sum of dollars, by his promissory, nfegotiable notes, payable at average credit of months from the day of publication of said edition ; and also to give him copies of said work, for presentation. Witness our hands, in duplicate, this day of {Signature of author.) {Signature of publisher.) (331.) Agreement between Author and Publisher. — ^Fuller Form. Articles of Agreement, Made this day of , A. D. 19 — , by and between of the first part, and of , State of 672 THE LAW OF COPYEIGHT. _, booksellers and publishers, of the second part, witnesseth. That the said {name of the author) in consideration of the agreements of the said {name of publishers) hereinafter contained, hereby agrees with them and their representatives and assigns that he will deliver to them on or before the day of , A. D. 19 , the manuscript of a book now in course of preparation by him, to be entitled , said manuscript to be properly prepared for the press, and to be sufficient in amount for volume of not less than pages, _! similar to those'of that he will secure in his own name a good and valid copyright thereof for the United States, and any renewals or extensions of such copyright to which he may hereafter be entitled, and will defend the same from all in- fringements and adverse claims, and will save the said and their representatives and assigns, harmless and indemnified' from all such infringe- ments and claims, and from all damage, costs, and expenses arising to them by reason thereof; that he will license and allow the said and their representatives and assigns, but no other party or parties, to, print, publish, and sell the aforesaid book, and any revisions of the same, during the con- tinuance of any copyrights or renewals thereof which he may obtain there- for; provided, however, that the said and their representatives and assigns shall in substantial good faith keep and perform their agreements hereinafter contained; and that during the continuance of the exclusive rights hereby granted, he will revise said book as occasion may require, and will with all reasonable diligence and speed superintend in the usual manner of authors the printing of all editions thereof; and will not prepare, edit, or cause to be published, in his name or otherwise, anything which may in- jure or interfere with the sale of the aforesaid book. And the said {name of the publishers) in consideration of the foregoing agreements of the said author of the aforesaid book, hereby agree on their part that they will, upon the delivery to them of the manuscript thereof as aforesaid, proceed at once to print and publish an edition of said book, of at least copies, of which they will deliver to the said author for his own use without charge; that they will subsequently, from time to time, during the continuance of their enjoyment of the exclusive rights herein granted them, print and publish such other editions of said book as the demand for the same may require, copies of each of which they will deliver to said author for his own use without charge; that they will use their best exertions to secure the speedy sale of all such edi- tions published by them as aforesaid; and that, upon the publication of each and every edition of said book, they will pay unto the said author, or his representatives or assigns, a sum equal to upon each and every copy of which said edition shall consist (excepting, however, said copies to be given to said author as aforesaid, and such other copies as may be used for presentation to editors and others for the purpose of obtaining reviews and notices, or otherwise to promote the sale of said book), which said sum shall be paid as follows {state the manner and times of payment, as by cash or notes) but from any sum so to be paid as aforesaid shall first be deducted the cost of any alterations or, corrections, exceeding ten per cent, of the cost RECOVERY AND COLLECTION OF DEBTS. 673 of first setting up the type, made by the said author in said book after the portion altered or corrected is in type. In Witness Whereof, The said parties have hereto, and to another instru- ment of like tenor, set their hands the day and year first above written. (Signature of author.) (Signature of puhlishers.) (Witnesses.) (332.) An Assignment of a Copyright. To all Whom it may Concern : Whereas I, (name of assignor) of in the County of , and State of did obtain a copyright from the United States for a work entitled , and the certificate of said copyright bears date , A. D. nineteen hundred and Now this Deed Witnesseth, That for a valuable consideration, viz: to me in hand paid, the receipt of which is hereby acknowledged, I have assigned, sold, and set over, and by these presents 'do assign, sell, and set over unto the said (name of assignee) all the right, title, a^id interest I have in the above book (or design, etc.) as secured to me by said copyright. The same to be held and enjoyed by the said (name of assignee) for his own use and behoof, and for the use and behoof of his legal representatives, to the full end of the term for which said copyright was issued, as fully and entirely as the same would have been held and enjoyed by me had this as- signment and sale not been made. In Testimony Whereof, I have hereunto set my hand and affixed my seal, this day of in the year of our Lord one thousand nine hun- dred and (Signature.) (Seal.) Sealed and Delivered in Presence of CHAPTEK XXXVI. MEANS PROVIDED FOR THE RECOVERY AND COLLECTION OF DEBTS. 1. Arrest and Imprisonment. — In many States, no person can be arrested or imprisoned for debt. In California no female, and in Louisiana no female, and no person who has not a domicil in the State, and in Ohio no female, nor any officer or soldier of the Eevolutionary army, can be arrested or imprisoned for debt. In all the States, the intention of the law is to limit imprisonment to those cases in which either fraud was committed in the con- traction of the debt, or the debtor intends to abscond out of the 43 674 RECOVERY AND COLLECTION OF DEBTS. reach of process. The provisions to effect this are very various. Generally, the plaintiff must file in the clerk's office, or indorse upon the writ, an affidavit of the facts on which he grounds the right of arrest. In some of the States, provision is made for the imprisonment on execution of a debtor who can be found to pos- sess, and refuses to surrender, property or interest, real or per- sonal, which might be made, available for the payment of his debts. 2. The Trustee Process. — The trustee process, or garnishee process, or process of foreign attachment, — ^by all which names it is known, — is now nearly or quite universal. It is substan- tially this : A owes B a debt ; but A has no property in his hands or possession which B can get at; but A has deposited in the hands of C, goods, or property, or credits of some kind, or A has a valid claim against C for services rendered, or money loomed, or goods sold, or something else ; and this B gets by suing A, not with a, common writ, but with a trustee writ, so called, in which he declares that C is the trustee of A, for property, etc. ; and on this writ, if B recovers judgment against A, he will have an ex- ecution against all A's property in the hands of C, and all A's valid demands against C. But C, when notified, may come into , court, and, in answer to all questions put to him, declare that he (C) has no property in his hands belonging to A, and that he does not owe A anything. And then the plaintiff may shape the questions as he pleases, to draw out the truth. No one is adjudged trustee, or made to pay to the creditor the debt due to the debtor, if he has given a negotiable note for it, because he might have to pay it again to an honest indorsee. Nor if the debt is not certainly due ; nor, generally, if it is due from the trustee in any official capacity, which will require him to ac- count over for the money in his hands ; nor if the debtor has re- covered a judgment against the trustee, on which execution may issue. The laws of the British Provinces for the collection of debts are similar in substance and purpose to those of the United States, with similar provisions against abuse or oppression. 3. The Homestead. — In most of the States, a homestead is pro- tected from creditors, and exempted from all attachment or ex- ecution, excepting in some States for taxes, or wages of labor to a certain amount. ABSTRACTS, COLLECTION OF DEBTS. 675 Various provisions are made in each of these States to combine a due protection of the creditor with proper prevention of fraud. The most common means are by requiring that "the homestead" should be distinctly defined and set apart, and in many cases by the additional requirement, that the description and location of it should be put on public record. In all the States there are also exemption laws. These provide very generally that bed and bedding and other necessary furni- ture, needful clothing, a Bible and school-books, and a certain amount of food and fuel, shall not be taken on attachment or ex- ecution. In some states, the tools of a trade, the uniform, arms, and equipments of soldiers or officefs in the militia, the family burying-vault and gravestones, a team or yoke of oxen, bees with their hives and honey, a boat for fishing, etc., are exempted. These statutes often enumerate the articles exempted quite mi- nutely, and then add, that necessary articles to a certain amount of value, usually one or two hundred dollars, are also exempted. We give annexed to this chapter an Abstract of the Laws of all the States relating to the collection of debts. ABSTRACT OF lAWS RELATING TO THE COLLECTION OF DEBTS. INCIUDING ACTIONS, ATTACHMENT, AKREST, GARNISHMENT, JUDG- MENT, EXEMPTIONS, AND HOMESTEAD. ALABAMA. Actions. Civil actions are begun by service of summons, issued by the clerk of court, and accompanied by the complaint of the plaintiff. All ac- tions on contracts for the payment of money may be joined in one. Attachment may be levied on any real estate, or personal property, or by garnishment. It may issue, (1) to enforce the collection of any debt, (2) for any money demand, (3) to recover damages for the breach of any con- tract, or, (4) when the action sounds in damages merely, on affidavit by the plaintiff that the defendant resides out of the State, or has absconded, or has secreted himself, or is about to remove, or has or is about to dispose of his property fraudulently. Affidavit must set forth amount of debt or de- mand, that it is justly due and that attachment is not for purpose of harass- ing defendant. Plaintiff must also give bond to defendant to prosecute at- tachment to effect, and pay all damages sustained by wrongful suing out of attachment, except in action against non-resident. GarnishmBnt. The judgment creditor in any action may obtain a process of garnishment against any person supposed to be indebted to the defendant, 676 ABSTRACTS, COLLECTION OF DEBTS. and the plaintiff may obtain such process when a summons and complaint have issued in any case upon giving bond. Judgment is a lien for ten years, after filing a certificate of the clerk of the court in the ofiice of the judge of probate of the county where it was obtained. Stay Lavs'. In actions before a justice of the peace defendant may, at any time before execution is issued, stay the issue thereof thirty days, if the judgment be less than twenty dollars, or sixty days if over twenty dollars, by giving a bond with surety in double the amount of the judgment. In cases in the Circuit court execution can be stayed only by appeal to the Su- preme Court and giving bond. Exemptions. Personal property, to be selected by the debtor, to the value of one thousand dollars, is exempt from sale on execution, or other process of court, also the homestead of the debtor, nqt exceeding one hundred and sixty aci-es and not exceeding two thousand dollars in value, not in any city, town, or village, or in lieu thereof, any lot in any city, town, or village with the buildings thereon owned and occupied by the debtor, not exceeding two thousand dollars in value. Also are exempt, lots in cemeteries, pew or seat in church, proper wearing apparel, family portraits, books used in the family, and the wages or salaries of laborers or employees, for personal service, not exceeding twenty-five dollars per month. ALASKA. Actions. There is but one form of civil action, which must be prosecuted by the real party in interest. Actions are begun by filing a complaint with the clerk of the court, and the issuance of a summons thereupon. Attachment is allowed for unsecured contract claims for the payment of money, or in action' against non-resident. The plaintiff must file an under- taking with sureties. All property, including debts not due, is attachable. Arkest. The defendant may be arrested in the following actions: (1) Recovery of money or damages where he is about to remove with intent to defraud creditors; for injury to person or property, including conversion; (2) Fine or penalty, embezzlement or misapplication of funds by a public ofiicer or one in a fiduciary capacity; (3) To recover personal property un- justly detained, where it is concealed, disposed of, or removed; (4) Where the defendant is guilty of fraud in contracting the debt or obligation, or of concealing or disposing of property for the recovery of which the action is brought; (5) When the defendant has removed or disposed of property with the intent of defrauding creditors, or is about to do so. No female can be arrested in a civil action, except for injuries to person or property. In all cases the plaintiff must give an undertaking with sureties. Garnishment. This is provided for by the attacbment law. Judgment is a lien for ten years after docketing thereof, in the county where it was issued, or where the transcript is filed, upon all real property therein belonging to the judgment debtor. Exemptions. (1) Earnings for personal services within sixty days; (2) Books, pictures, and musical instruments to the value of seventy-five dol- lars; (3) Necessary wearing apparel, but jewelry, including watches, not to ABSTRACTS, COLLECTION OF DEBTS. 677 exceed $100 in value; (4) The tools, implements, or other property neces- sary to enable the debtor to carry on his trade, occupation, or profession, not to exceed $500 in value; (5) To the head of a family enumerated property not exceeding $300 in value; (6) The seat or pew occupied by the family; (7) All property of public corporations, and the homestead of any family not to exceed $2,500 in value, or more than 160 acres in the country, or one- fourth of an acre in a city. ARIZONA. Actions. There is but one form of civil action. This is commenced by filing a complaint with the clerk of the court and taking out a summons. Actions must be brought in the name of the real party in interest. If the plaintiff be a non-resident, defendant may require security for costs. Attachment. Will issue on filing with the clerk an affidavit setting forth that defendant is indebted to plaintiff on contract for direct payment of money made or payable in the State, that it is unsecured and that demand has been made for payment, or that defendant is a non-resident or foreign corporation, or that he is about to remove property from jurisdiction of court to avoid payment, or that the action is brought on judgment of an- other State or Territory, and that attachment is not sought for malicious purpose or to hinder or delay creditors. Attachment may issue on debt or demand not due, on affidavit of first ground above stated, or that defendant is about to remove permanently from the State and has refused to secure the debt, or has secreted property to defraud creditors, or is about to remove property from the State without leaving sufficient to pay "his debts, or has or is about to dispose of property to defraud creditors, and also that the attachment is not sued out to injure or harass defendant, and that plaintiff will probably lose his debt unless attachment issues. Plaintiff must give bond with sureties to prosecute suit and for damages and costs in case at- tachment was wrongfully obtained. Arrest — ^not authorized for debt. But every debtor who fraudulently re- moves from territory or fraudulently conceals or disposes of property with intent to defraud or hinder creditors is punishable by fine and imprisonment. Garnishment. Writ issues on plaintiff's filing affidavit showing either that an original attachment has been issued, or that debt is just, due, and unpaid and that defendant has not property sufficient to satisfy debt, and that the garnishment is not sued out to injure either defendant or garnishee; or that plaintiff has a judgment and that defendant has not property to sat- isfy it; and further, that the garnishee is indebted to defendant or has ef- fects of defendant, or that garnishee is a joint stock company and defend- ant owns shares or some interest therein. If application is made on second ground above stated plaintiff must give bond with sureties for damages and costs. Judgment is a lien for five years on all real estate owned by the defend- ant in the county where the judgment is rendered or where a transcript of the same has been filed. Stat Lavst. There is no stay of execution except in case of appeal. 678 ABSTRACTS, COLLECTION, OF JDEBTS. Exemptions. To every head of a family a homestead not exceeding twenty -five hundred dollars in value; personal property to the value of five hundred dollars to bfe selected by the debtor, and earnings for personal serv- ices for thirty days preceding the levy. Also prospector's tools and camp outfit. ARKANSAS . Actions. Forms of actions existing before the adoption of the code are abolished, and there is now one form of action for private rights, called a civil action. The civil action is begun by filing with the clerk of the court a complaint and causing a summons to issue thereon. Several causes of ac- tion may be joined in the same complaint, and should be in the name of the real party in interest. Attachment. The plaintiff may have an attachment for the recovery of money, including damages, when the defendant is a non-resident of the State; or has been absent from the State four months; or has departed with intent to defraud his creditors; or has left county to avoid service of summons, or so conceals himself that summons cannot be served on him, or has removed his property from the State, or is about to do so, not leaving enough to satisfy the claims of creditors; or has disposed of his property, or is about to do so with fraudulent intent to cheat, hinder, or delay his creditors. An order of attachment is made by the clerk of the court on the filing by the plaintiff of an affidavit showing the nature and amount of the plaintiff's claim, that' it is just, and the existence of one of the grounds of attachment above mentioned, and filing a bond of indemnity to the defend- ant. Aekbst. The defendant in a civil action may be arrested on filing by the plaintiff with the clerk of the court, of an affidavit showing the nature of the claim, and charging the defendant with fraud in contracting the debt, that it is a just claim, and the amount expected to be recovered, and that ihe affiant believes that the defendant is about ,to depart from the State, and has concealed his property with the intent to defraud his creditors, or that he has property and is about to depart from the State without leaving enough to satisfy the plaintiff 's claim, and filing a bond of indemnity. Garnishment. Process of garnishment may issue whenever the plaintiff believes that any person is indebted to the defendant, or has in his hands or possession goods and chattels, moneys, credits, etc., belonging to defendant, except for wages less than two hundred dollars, provided, if garnishment issue before judgment, that plaintiff shall give a bond of indemnity. Judgment rendered by the Supreme or Circuit Court of the State, or by the District or Circuit Court of the United States, is a lien on the real estate bi the defendant lying in the county for which the court is held, and becomes a lien on lands in any other county on filing a transcript with the clerk of the County Circuit Court. The lien continues for three years. Stat Law. Execution may be stayed six months, when the judgment is a decree for money, by giving a bond with good surety, except in actions against a collecting officer, attorney, or agent, or by a surety against his principal, or in a suit brought to enforce a vendor's or mortgagee's lien. ABSTEACTS, COLLECTION OF DEBTS. 679 Exemptions. Personal property of a person unmarried and not the head of a family to the value of two hundred dollars, in addition to wearing ap- parel, unless the debt was contracted for the purchase price thereof. Per- sonal property of a person married or the head of a family to the value of five hundred dollars, in addition to wearing apparel. Uniform and equip- ments of members of the State Guard. The wages for not exceeding sixty days of all laborers and mechanics. The homestead of a married man or the head of a family, except on judgments for the purchase money, or to enforce specific liens against the property, or for debts due in a fiduciary capacity. Such homestead, if outside of a town or village, shall consist of not exceed- ing one hundred and sixty acres of land, with the improvements thereon, oc- cupied as a residence, in all not exceeding in value twenty-five hundred dol- lars, or not less than eighty acres without regard to value. If within a city, town, or village and owned and occupied as a residence, it shall consist of not exceeding one acre of land with improvements, not in all exceeding in value twenty-five hundred dollars, or not less than a quarter of an acre with- out regard to value. CALIPOBNIA. Actions. There is only one form of action for private remedies, which is commenced by filing a complaint, and issuing a summons thereon, directed to the defendant, and must be brought in the name of the real party in in- terest. Attachment. A writ of attachment may issue, in actions on contracts for the direct payment of money made or payable in the State, and not se- cured or where security has become valueless, and in actions of contract oi' for injury to property in the State against a non-resident defendant, on filing with the clerk of the court an afSdavit that the defendant is actually indebted to the. plaintiff, stating the amount due, and also that the action is one of those above specified; and filing a bond o£ indemnity to the de- fendant. Akrest. The defendant may be arrested in an action for the recovery of money or damages, when he is about to leave the State' with intent to de- fraud his creditors, or in an action to recover possession of personal prop- erty when the property has been fraudulently concealed or disposed of and cannot be found, or when the defendant was guilty o-f fraud in contracting the debt, or of embezzlement or fraudulent misapplication of money or prop- erty, or of misconduct or neglect in office, or in professional employment, or of wilful violation of duty, or where the defendant has removed or dis- posed of his property with intent to defraud his creditors. The order for arrest is obtained from a judge of the court, on affidavit of one or more of the above causes, and furnishing security to defendant for damages in case the arrest proves unlawful. No female can be arrested in any civil action. Garnishment. Debts due the defendant, and credits or personal prop- erty of the defendant in the hands of a third party may be attached by serv- ing a copy of the writ, and a notice that the debts, credits, or personal prop- erty are attached. 680 ABSTEACTS, COLLECTION OF DEBTS. Judgment is a lien on real property of the debtor, not exempt from being taken on execution, which is situated in the county where the action was brought, and becomes a lien on real estate in other counties by filing a tran- script of such judgment in the several counties'. The lien continues for five years. Stay Law. The power of staying execution for a reasonable time is dis- cretionary with the court. An appeal, accompanied by sufficient security, operates as a stay. Exemptions. Chairs, tables, desks, and books to the value of two hun- dred dollars, necessary household furniture, including one sewing machine and one piano, stoves, stovepipe, and utensils, wearing apparel, beds, bed- ding, and bedsteads, family" portraits and pictures painted by any member of the family, provisions and fuel actually provided for three months, three cows and their sucking calves, four hogs with their sucking pigs, and food for such cows and hogs for one month; farm utensils not exceeding one thousand dollars in value, two oxen, or two horses, or two miiles, and harness, one cart or buggy and two wagons, and food for said animals for one month, seed, grain, or vegetables for sowing, not exceeding in value two hundred dollars; and seventy -five bee-hives, and one horse and vehicle belonging to any person who is maimed or crippled, the same being necessary to his busi- ness; tools of mechanics or artisans; the ofiice furniture, records, and seal of a notary public; the instruments of surgeons, dentists, physicians, sur- veyors, with their professional libraries and office furniture; the professional libraries and office furniture of lawyers, judges, ministers, editors, school and music teachers, and the indexes, abstracts, books, papers, maps, and office furniture of searchers of records necessary to be used in their profes- sion, instruments actually used by music teachers in giving instructions, also typewriters used by owner in making his living, also one bicycle ; the cabin of a miner, not exceeding five hundred dollars in value, with all the imple- ments and gear necessary for his business, not exceeding five hundred dollars in value, with two horses, mules, or oxen, and harness necessary to operate the mine, and food for the same for one month, and the miner's claim worked by him, not exceeding one thousand dollars in value; two oxen, mules, or horses, and harness, with food for the same for one month, and the cart or other vehicle by which carters, h^ckmen, peddlers, etc., habitually earn their living, one horse, vehicle, and harness used by a physician, con- stable, or minister in the practice of his profession, with food for such ani- mals for one month; fishing boat and net of fisherman not exceeding five hundred dollars; poultry not worth more than seventy-five dollars; sea- men's and sea-going fishermen's wages not exceeding three hundred dollars; the earnings of the judgment debtor for personal services rendered within thirty days next preceding the levy, when it appears by affidavit that such earnings are necessary for family support, but only half of such earnings are exempt when the debt is for necessaries; shares in homestead associations not exceeding one thousand dollars, when the debtor has no homestead selected; nautical instruments and wearing apparel of any mariner; life in- surance policies, when the premium does not exceed five hundred dollars; all firearms required by law to be kept by any person, one rifle and one shot- ABSTEACTS, COLLECTION OF DEBTS. 681 gun selected by the debtor; all material not over one thousand dollars pur- chased in good faith for use in or about to be applied in good faith to the construction, alteration, or repair of any building, mining claim, or other improvement, except upon a judgment recovered for its price, or foreclosure of a mortgage thereon, all machinery, etc., necessary in construction of arte- sian wells or surface wells to the value of one thousand dollars; shares of stock in any building and loan association to the value of one thousand dol- lars; also a homestead, consisting of the land on which the debtor resides, to be selected by him, to the value of five thousand dollars, if the head of a family, or one thousand dollars of any other person; moneys derived from TJ. S. pension. COLORADO. Actions. There is only one form of action in civil eases, and actions are begun by flUng with the clerk of the court a written complaint, or by the service of a summons. Non-residents must give security for costs. AiT.iCHMENT. Writ of attachment may issue on filing with the clerk of the court a bond with sureties in double the amount claimed, and an affidavit, signed by the plaintifE or on his behalf, stating the nature and amount of the claim, as near as may be, and that defendant is a non-resident or a for- eign corporation or a corporation whose chief office or place of business is out of the State, or that he conceals himself or stands in defiance of an of- ficer so that process cannot^ be served on him, or that for more than four months defendant has been absent from the State, or his whereabouts un- known, the indebtedness having been due during the whole of said period, or that he is about to remove his property from the State with intent to defraud or delay creditors; or that he has fraudulently assigned, concealed, removed, or disposed of his property to hinder or delay creditors, or is about to do so; or that he is about to depart from the State with the intention of having his effects removed from the State ; or that he has failed or refused to pay the price of any article delivered to him which should have been paid for on delivery, or to pay for any services rendered by plaintifE at his re- quest, which were to be paid for when said services were rendered; or that the debt was fraudulently contracted; or that defendant procured property of plaintifE by false representations or fraudulent conduct. Attachment may issue on debts not due if attachment levies on defendant's property are suffi- cient to render him insolvent. Writs of attachment may issue on Sunday or on legal holidays in urgent cases. Areest. No person can be arrested on mesne process, and oply on execu- tion when it is in an action of tort in which the finding shall be for the plaintifE, and shall state that the defendant was guilty of malice, fraud, or willful deceit in committing the tort, and in this ease he may be imprisoned for one year, or until the judgment is paid. Garnishment. PlaintifE may have a writ of garnishment upon the is- suing of a writ of attachment, or at any time thereafter, and if the sherifE cannot find any property of the defendant, or sufficient to satisfy the at- tachment he may summon such persons as plaintifE may direct, who are in- debted to, or have goods, effects, or credits of the defendant in their hands ; 682 ABSTEACTS, COLLECTION OF DEBTS. and in any case on the return of an execution unsatisfied, a writ of garnish- ment may issue. , Judgment becomes a lien on the real estate of the defendant in any county by filing in such county an abstract of the judgment, and continues as such for six years, but execution must issue within one year. From the time that the execution is delivered to the ofBcer the judgmept becomes a lien on all the goods and chattels of the debtor. Stat Law. There is no stay of execution in Colorado except on appeal or in case of a writ of error by a supersedeas. Exemptions. The following property of a person being the head of a family is exempt, and if the head of the family dies the family is entitled to the same exemption: The pictures, school-books, and library of the debtor; a seat or pew in cTiurch; one burial lot; necessary wearing apparel of the family; all beds and bedding, stoves and cooking utensils used by the debtor or his family, and other household furniture not exceeding one hundred dol- lars in value; provisions for the debtor and his family for six months, and fuel for six months ; one bicycle ; one sewing machine ; the tools, implements, or stock-in-trade of a mechanic, miner, or other person, used and kept for the purpose of trade, not exceeding in value two hundred dollars; the library and implements of professional men, not exceeding three hundred dollars; working animals to the value of two hundred dollars; one cow and calf, ten sheep, and the necessary food for the same for six months, provided or grow- ing, or both; also one farm wagon, one plow, harrow, and other farm im- plements, including harness and tackle for the team, not exceeding fifty dol- lars. The wearing apparel and the working animals of any person to the value of two hundred dollars and U. S. pension money are also exempt from execution; the earnings of- husband or wife, if the family is dependent in whole or in part on them for support, are exempt to the amount of sixty per cent, of the amount due at the time of levy, when such family resides in the State. Every householder, the head of a family, is entitled to a homestead to the value of two thousand dollars while such homestead is occupied by the owner or his or her family, but to secure this he must cause the word "homestead" to be entered on the margin of the recorded title signed by himself and attested by the recorder, together with the date of record.. COISTNECTICUT. Actions. There is but one form of civil action, which is commenced by writ of summons or attachment, accompanied by the complaint, which con- tains a statement of the facts constituting the cause of action and a demand for the relief sought. Attachment. The defendant's estate, real or personal, may be attached in all complaints containing a money demand at the commencement of the action, or at the discretion of the court during the pendency of the same. Aekest. Defendant cannot be arrested in any action founded on con- tract merely, except for breach of promise to marry, misconduct or neglect in any office or professional employment, or in actions against a public officer, tmstee, or person acting in a fiduciary capacity to recover moneys received by him. Defendant may be arrested on mesne process or execution when the ABSTRACTS, COLLECTION OF DEBTS. 683 declaration sets forth that Tue contracted the debt by fraud, or that he con- ceals, removes, or conveys away his property to prevent its being taken by legal process, or refuses to pay an admitted debt or judgment, having suffi- cient property to discharge the same concealed or withheld, or refuses to dis- close rights of action with intent to prevent their being taken by foreign at- tachment. Garnishment. Goods concealed in the hands of agents so that they can- not be attached, or debts due from any person may be reached by process of. foreign attachment. Judgment is not a lien on lands unless attached, or unless a certificate de- scribing the court, date of judgment, names of parties, amount unsatisfied, and the premises on which the lien is claimed is recorded in the town where the lands lie. Stat Law. Stay of execution can be had only on appeal, on a judgment against an executor or administrator in the settlement of an insolvent estate, in case of foreign attachment where it shall appear on scire facias that the debt due the principal is not yet payable, and on a judgment for a mort- gagee in ejectment pending foreclosure of a mortgage. Exemptions. The necessary apparel and bedding, household furniture necessary for supporting life (which clause is construed liberally), the arms, military equipments, uniforms, or musical instruments, 'owned by members of the militia, pension money received from the United States, implements of the debtor's trade, library not exceeding in value five hundred dollars, one cow not exceeding one hundred and fifty dollars in value, sheep not exceed- ing ten, or one hundred and fifty dollars in value, two swine, and two hun- dred pounds of pork, and poultry not exceeding twenty-five dollars in value. Of the property of any one having a wife or family, twenty-five bushels of charcoal, two tons of other coal, two hundred pounds of wheat flour, and two cords of wood, two tons of hay, two hundred pounds of beef and fish each, five bushels each of potatoes and turnips, ten bushels each of Indian corn and rye, or the meal and flour therefrom, twenty pounds each of wool and flax, or the yarn and cloth therefrom; the horse or bicycle of a practicing physician not exceeding two hundred dollars in value, and his saddle, bridle, harness, and buggy; one boat owned by one person and used by him in the business of planting or taking oysters or clams, or taking shad, together with the tackle, sails, rigging and implements used in said busiiiess, not ex- ceeding in value two hundred dollars, one sewing machine, being the prop- erty of one person, one pew, and lot in a burying ground. Wages of any person, including services of minor child, not exceeding fifteen dollars, ex- cept on a claim for personal board or house rent not exceeding twenty-five dollars, all benefits from charitable associations, sick benefits allowed by as- sociations to members, and insurance on exempt property are exempt. Home- stead to the value of one thousand dollars in any dwelling owned and occu- pied by the claimant is exempt, provided a declaration to that effect has been executed and recorded in the same manner as a deed of land, or inserted in the conveyance to him. 684 ABSTRACTS, COI.LECTION OF DEBTS. DELAWARE. Actions may be commenced by a writ of capias or summona, or in the case of a non-resident defendant by attachment of property. Aeeest. The defendant may be arrested on mesne process, but, if he be a citizen of the State, only on plaintiff's filing an affidavit of fraud, except in actions for Ubel, slander, or injury to person or property accompanied with violence. A non-resident plaintiff cannot arrest on mesne process .a non- resident defendant for debt contracted without the limits of the State. The defendant can be arrested on execution only on aflS.davit of fraud, and when it appears by affidavit or the return on scire facias that he has no prop- erty in the county sufficient to pay the debt and costs. Attachment. Writ of domestic attachment may issue after return by the officer showing that the defendant cannot be found, and proof of the cause of action, or on affidavit filed with the prothonotary that the defendant is justly indebted to the plaintiff in a sum exceeding fifty dollars, and has absconded from his usual place of abode, or gone out of the State with intent to defraud his creditors or to elude process, as it is believed. The proceeds of sale of property so attached are divided equally among defendant 's credi- tors, except that the attaching creditors are entitled to a double share to the extent of their debt'. A writ of foreign attachment for debt, but not for damages, may issue against a person not an inhabitant of the State or foreign corporation after a return as above, on an affidavit that the defendant resides out of the State, and is justly indebted to the plaintiff in a sum exceeding fifty dollars. GAitNisHMENT. The property, rights, or credits of a defendant against whom judgment has been obtained, in the hands of a third party may be at- tached. Judgment of Superior Court is a lien on real estate of the defendant for ten years from the date of entering same. After twenty years it is pre- sumed to be paid. Stat Lavst. Execution on judgments for want of affidavit of defense may be stayed six months on giving good security. In suits before a magistrate six months' stay on defendant's pleading his freehold, nine months on giving security. Judgments obtained at second term after suit are allowed a stay of three months. Exemptions. The family Bible, school books and family library, family pictures, a seat or pew in church, burial lot, all the wearing apparel of debtor and family, and in addition the tools, implements, and fixtures necessary for carrying on his trade or business, not exceeding seventy-five dollars in New Castle and Sussex Counties, and fifty dollars in Kent County. There is ex- empted to the head of the family, in addition to the above, other personal property (goods of merchantable character bought to be sold in transaction of debtor's business excepted) not exceeding two hundred dollars in New Castle County, and not exceeding one hundred and fifty dollars consisting of household goods only in Kent Coimty. There is no such additional exemp- tion in Sussex County, and there is no such additional exemption when such ABSTRACTS, COLLECTION OF DEBTS. 685 exemption would prevent the collection of a debt due or growing due for labor or services (other than professional services) rendered by any clerk, mechanic or other employee of the debtor. Sewing machines owned and used by seamstresses or private families are also exempt. In New Castle County 90% of all wages are exempt from attachment, except for board or lodging, or both, not exceeding $50. Widows in all cases shall have the same exemptions out of the husband's goods that he would have if living. Funeral expenses, reasonable bills for medicine and medical attendance, nursing and necessaries of last sickness are paid out of the personal property of a deceased person, before there is any application to the execution. The above exemptions extend to distress for rent. Pianos, piano playing attachments and organs leased or hired are exempt from ex- ecution or from distress for rent due from the person leasing or hiring, after notice of the lease to the landlord. There is no homestead exemption. DISTRICT OF -COLUMBIA. Actions in the Supreme Court of the District are commenced by filing in the clerk's ofSce a libel or information, bill, petition, or declaration, and service of writ and payment of deposit to secure costs of suit. Plaintiff may include in his declaration all causes of action against the defendant, stating them in separate counts. Arkest. No person can be arrested in a civil suit, or imprisoned for debt other than fines. Attachment. Writs of attachment and garnishment may issue either at the commencement or during the pendency of the action, on plaintiff 's filing an afiidavit, supported by testimony of one or more witnesses, setting forth the grounds of action and that plaintiff has a good right to recover, and also stating either that defendant is a foreign corporation or a non-resident or has been absent therefrom at least six months and has estate or debts owing him in said District, or evades service of process by concealing himself or withdrawing temporarily from the District, or has removed, or is about to remove some of his property from the District to defeat just demands, or has assigned, disposed of, or secreted property, or is about to do so with intent to hinder, delay, or defraud creditors, or fraudulently contracted the debt or incurred the obligation sued on. Attachment may be dissolved by defendant giving bond. The plaintiff must file an undertaking and bond. Judgment is a lien on real estate from the date of rendition and as long as the judgment remains in force. Stay Law. Execution is stayed only by appeal and filing a bond. Exemptions. Wearing apparel of all persons; and to heads of families who are householders, beds, bedding, household furniture, stoves, cooking utensils, etc., not exceeding three hundred dollars in value; provisions for three months ' support, whether provided or growing ; fuel for three months ; mechanics' tools, and implements of debtor's trade or business, amounting to two hundred dollars in value, with two hundred dollars' worth of stock for carrying on business of debtor or his family; library and implements of pro- fessional man or artist, tp value of three hundred dollars; one horse, one 686 ABSTRACTS, COLLECTION OF DEBTS. mule, or yoke of oxen, one cart, wagon or dray, and harness for team; farm- ing utensils, with food for such team for three months; and if debtor be a farmer, any other farming tools to the value of one hundred dollars; all family pictures, and all family library not exceeding in value four hundred dollars; one cow, one swine, six dheep. The earnings, not exceeding one hundred dollars per month, of actual residents of the District who are mar- ried ^persons, or who have to provide for the support of a family in the Dis- trict, for two months preceding the issuing of process' are also exempt. There is no homestead exemption. FLORIDA. Actions at law are commenced by filing a prmeipe with the clerk, and may be brought in the name of the real party in interest. Arrest. There is no statute law authorizing the arrest of a defendant in a civil action. Attachment may issue on the affidavit in writing before a justice of the peace or clerk of the circuit, court, that the amount demanded is actually due, and that the plaintiff has reason to believe that the defendant will part with his property fraudulently before judgment can be obtained, or is actually moving his property out of the State, or is about to do so, or resides out of the State, or is removing or about to remove from the State, or absconds or conceals himself or his property or is fraudulently disposing of the same, or is removing or is about to remove beyond the judicial circuit in which he re- sides; and furnishing security for costs and damages. Writ of attachment may issue before the debt or demand is due, provided it will become due within nine months, on plaintiff 's filing an affidavit that the amount claimed is actually an existing debt or demand, the amount and date when it will become due, and also that the debtor is actually removing his property be- yond the limits of the State, or is fraudulently disposing of or secreting the same for the purpose of avoiding the payment of his just debts. The plain- tiff must give a bond with sureties. Gabmshment. Every person who has brought suit to recover a debt, or who has recovered judgment in any court of the State, may have a writ of garnishment on filing affidavit that the debt sued on is just, due and unpaid, that the writ is not sued out to injure defendant or garnishee, and that affiant does not believe that defendant, after execution, will have visible property sufficient to satisfy plaintiff's claim. Plaintiff must also file bond with two sureties in double amount of claim. Judgment is a lien on real estate, and becomes so in any county by re- cording it in such county before the alienation of the property. It is bind- ing in the county in which suit was brought from the date when it was ren- dered. Mortgages, notices of liens, or judgments when extinguished, must be canceled by holder on the records under penalty for failure. Judgments, the records of which have been destroyed by fire, are not good against credi- tors and bona fide purchasers without notice unless legal proceedings to re- establish the same are begun within nine months. Judgments of a lower court, sustained in the Supreme or Circuit Court on appeal or supersedeas, rpn against sureties on bond. ABSTRACTS, COLLECTION OF DEBTS. 687 Stay Law. There is no stay of execution in Florida. Exemptions. There is exempt to the head of each family a homestead of one hundred and sixty acres, or one-half an acre in an incorporated city or town, with the improvements on such real estate, together with one thousand dollars' worth of personal property, to be selected by the debtor, but no property is exempt from sale for taxes, for obligations contracted for the ' purchase of the same or in making improvements thereon, or for labor per- formed thereon. Money due for personal labor or services of the head of a family is ex- empt from attachment or garnishment. GEORGIA. Actions. All distinctions between real, personal, and mixed actions are abolished. Arrest. Imprisonment for debt is abolished, but in actions for the re- covery of personal property, on plaintiff 's making affidavit that he has rea- son to believe that said property has been or will be eloigned or moved away, or wiU not be forthcoming to answer the judgment, defendant may be ar- rested and committed to jail, unless he give bond with good security, or on application to the judge states on oath that he is neither able to give the security required by law nor produce the property, and can furnish satisfac- tory reasons for its non-production, when he may be discharged on his own recognizance. He shall also traverse the plaintiff's statements in his affi- davit. Attachments may issue whether the debt is due or not. 1. When the debtor resides out of the State. 2. When he is actually removing or is about to remove without the limits of the county. 3. When he absconds. 4. When he conceals himself. 5. When he resists legal arrest. 6. When he is causing his property to be removed beyond the limits of the State, when he is dispos- ing of or threatens to dispose of or conceals his property liable to the pay- ment of his debts, or makes a fraudulent lien thereon, to avoid payment of his debts. Plaintiff must make affidavit before a judge of the superior court, or county court, a justice of the peace, or a notary public, setting forth one of the above causes, and the amount of the debt claimed, and must give a bond to the defendant to prosecute his suit, and the defendant may dissolve the attachment by giving bond. ' Garnishment may issue before or after judgment against debtors of the defendant, on plaintiff's making affidavit of the amount due, and that he has reason to apprehend the Toss of the same or of some part thereof unless garnishment issue, and giving bond with security for damages and costs. JunoMENT is a lien on all' property, real or personal, except promissory notes and choses in action. All judgments draw lawful interest which is' 7%. The judgment lien is discharged in four years on real property, and two years on personal property sold to a iona fide purchaser for a valuable con- sideration. Stat Law. If the debtor gives a bond with good security, execution may be stayed sixty days. 688 ABSTEACTS, COLLECTION OF DEBTS. Exemptions. The Constitution of 1877 provides that there shall be ex- empt from levy and sale by virtue of any process whatever, of the property of every head of a family, or guardian or trustee of a family of minor chil- dren, or every aged or infirm person, or person having the. care and support of a dependent female of any age who is not the head of a family, real or personal property, or both, to the value of sixteen hundred dollars, except that such property is liable for taxes, purchase money, labor done thereon, or materials furnished therefor, and for the expense of removing encumbrances thereon. Debtor may waive in writing the benefit of these exemptions, ex- cept as to wearing apparel and not exceeding three hundred dollars' worth of household and kitchen furniture and provisions to be selected by himself and wife. If the debtor, being the head of a family, does not avail himself of the foregoing exemption, he may claim those allowed by prior laws, viz: fifty acres of land and five acres additional for every child under sixteen years, including the dwelling-house, if such house and improvements do not exceed in value two hundred dollars, suci homestead not to be in any city, town, or village ; or in lieu thereof, real estate in a city, town, or village, not exceed- ing five hundred dollars in value ; also one f arni horse or mule, one cow and calf, ten head of hogs, and fifty dollars ' worth of provisions, and five dollars ' worth additional for every child, beds, bedding, and common bedsteads suf- ficient for the family, one loom, one spinning-wheel, and two pairs of cards and one hundred pounds of lint cotton, common tools of trade of the debtor and his wife, ordinary cooking uten'sils and table crockery, wearing apparel of the debtor and hi& family, library of a professional man in actual prac- tice not exceeding in value three hundred dollars, to be selected by the debtor. Also fifty bushels of corn, one thousand pounds of fodder, one one- horse wagon, one table, one set of chairs sufficient for the use of the family, and household and kitchen furniture, all not to exceed one hundred and fifty dollars in value. A family sewing-machine is exempt, whether the owner is the head of a family or not. Wages to the amount of $1.25 per day and 50% of the excess above that amount are exempt from garnishment. HAWAII. Actions. All civil actions are commenced by the filing of a verified com- plaint, and the issuing of a summons.- The assignee of a non-negotiable chose ill action may sue in his own name. » Abebst. There is no provision for arrest in civil actions. Attachment. Attachment may issue at any time on plaintiff's filing affidavit that defendant is indebted to him, specifying the amount above all just credits, and that attachment is not sought or action prosecuted to hin- der, delay or defraud any creditor of defendant, and by furnishing bond with sureties to prosecute the action without delay and pay any costs and any damages which defendant may suffer if attachment be wrongfuUy, oppres- sively or maliciously sued out. Garnishment. Goods, effects and credits in the hands of third persons may be attached in the original proceedings against the defendant or in sup- plemental proceedings. In case of any salary, annuity or pension payable ABSTEACTS, COLLECTION OF DEBTS. 689 by garnishee the latter must retain twenty-five per cent, until suit is deter- mined, and continue to retain twenty-five per cent, until judgment is satis- fied. Judgment. Judgment of district court may be made a lien on real estate by docketing it in the oflGice of the circuit court, and within fifteen days thereafter recording the docketed judgment in the registry of deeds. Exemptions. One piece of land, not exceeding one acre, with dwelling and other buildings thereon, not exceeding one thousand dollars in value, when owned by a housekeeper having a family, except as against me- chanics' liens. Also the following personal property: All necessary house- hold, table, and kitchen furniture, one sewing machine, crockery, tin and plated ware, calabashes and mats, family portraits and photographs and their frames, wearing apparel, bedding, household linen, and provisions for three months. Farming instruments and utensils not exceeding five hundred dollars in value; two oxen, two horses or mules, and their harness, and food for one month ; one horse, one set of single harness and- one vehicle of any person who is maimed or crippled; the tools or implements of a mechanic or artisan necessary to carry on his trade; the instruments and chests of a physician, dentist, or surveyor necessary to the exercise of his profession, together with necessary oflSce furniture and fixtures; the neces- sary office furniture, fixtures, blanks, stationery and ofSce equipment of at- torneys and judges, ministers of the gospel and rabbis; the typewriter, one desk and six chairs of a stenographer or typewriter ; the musical instruments of every teacher of music used in giving instruction; one bicycle; the fish- ing nets, clips and seines, and boats with their tackle and equipment, of every fisherman ; two horses or mules and their harness, one cart, wagon or stage, one dray or truck, one coupe, hack, or carriage for one or two horses, one automobile, one motorcycle or other vehicle by use of which a cartman, drayman, truekster, huckster, peddler, hackman, teamster, chauffeur, driver or other laborer earns his living; and two horses and harness and one ve- hicle or one automobile or motorcycle used by a physician, surgeon or min- ister of the gospel in the practice or exercise of his profession ; the nautical instruments and wearing apparel of every master, ofiScer or seaman of any steamship or other vessel; all books, papers, bookcases, etc., except those kept for sale; proceeds of insurance or of sale of property aforesaid; for three months after they are received, one half of wages of every wage earner ; also the family Bible, pictures and school books, two swine or six' goats and all necessary fish, meat, flour and vegetables. IDAHO. Actions. There is but one form of action, which is commenced by filing a complaint and causing a summons to be issued thereon, and must generally be in the name of the real party in interest. Arsest. Defendant may be arrested in the following cases : in an action on a contract when defendant is about to depart from the State with in- tent to defraud his creditors; in an action for wilful injury to person, char- acter, or property; in an action for a fine or penalty, or on a promise to marry, or for money or property embezzled or fraudulently misapplied, or 44 690 ABSTEACTS, COLLECTION OF DEBTS. for misconduct or neglect in office or in professional employment, or for will- ful violation of duty; in an action to recover possession of personal prop- erty unjustly detained, where the property has been concealed, removed, or disposed of to prevent its being found; when defendant was guilty of fraud in contracting the debt or obligation sued on, or in concealing or disposing of the property for the taking, detention, or conversion of which the action was brought, or when defendant has removed or disposed of his property or is about to do so to defraud his creditors. Plaintiff must file affidavit showing one or more of the above causes and a bond of indemnity to the defendant. Attachment may issue in actions on judgments, or on contracts for the express payment of money, where there is no security, or in an action of contract against a non-resident; an affidavit must be filed setting forth the amount due, and the ground of attachment, and that the attachment is not sought nor the action prosecuted to hinder, delay, or defraud creditors, and bond with two sureties must also be filed. Gabnishment. On notice in writing from the plaintiff that any person has property or credits belonging to the defendant, the sheriff may attach the same by serving on such person a copy of the writ of attachment or ex- ecution, together with notice that such property or credits are attached. Judgment is a lien for two years from the time of docketing the same, on all real estate owned by the defendant in the county, and in any other county for two years after a transcript of the original docket has- been filed with the recorder thereof. Stay Law. There is no stay of execution except in case of appeal with bond given. Exemption. Except on judgments for the purchase price : 1. Chairs, tables, desks, and books to the value of two hundred dollars. 2. Necessary household furniture to the value of three hundred dollars, pictures and draw- ings, family portraits and their frames, provisions for six months, two cows with their sucking calves, and two hogs with their sucking pigs. 3. Farm- ing utensils and implements not exceeding three hundred dollars in value, four oxen or four horses or mules and their harness, one cart or wagon, and food for such oxen, horses, or mules for six months ; water right not exceed- ing one hundred and sixty inches of water for irrigation purposes, and crops growing or grown on fifty acres of land leased, owned, or possessed by claimant. • 4. Necessary tools or implements of a mechanic or artisan not ex- ceeding five hundred dollars, notarial seal ^nd records of a notary public, instruments and chests of a surgeon, physician, surveyor, or dentist, with their scientific and professional libraries, professional libraries and ofSce furniture of attorneys, counsellors, and judges, and libraries of ministers of the Gospel. 5. The cabin or dwelling of a miner not exceeding five hundred dollars, also his mining tools and apparatus, and a pack-horse of prospector, of value of two hundred and fifty dollars. 6. Team, wagon or cart and harness of teamster, or other laborer, and one horse with vehicle and harness used by a physician, surgeon, or minister in making his professional visits, with food for such animals for six months. 7. The earnings of the judg- ment debtor for personal services rendered within thirty days of the levy ABSTRACTS, COLLECTION OP DEBTS. Q21 of execution, wlieii such earnings are necesaary for the support of the family and family resides in State. 8. Shares held by a member of local homestead association or building and loan association, to amount of $1,000, if the holder is not the owner of a homestead. 9. Insurance on the life of the debtor to the extent of an annual premium not exceeding two hundred and fifty dollars. 10. Unifornis and apparatus of fire company or department. 11. Arms, uniforms, etc., required by law to be kept. 12. Public buildings, grounds, and personal property pertaining . thereto. A homestead not ex- ceeding five thousand dollars to head of family, and one thousand dollars to other persons, if declaration be acknowledged and recorded. ILLINOIS. Actions are begun by a summons issued under the seal of the court, and are substantially in form as at common law. Attachments. The creditor may have an attachment against the prop- erty of the defendant when the debt exceeds twenty dollars. 1. Where the debtor is a non-resident. 2. Where the debtor conceals himself, or stands in defiance of the officer so that process cannot be served. 3 and 4. Where the debtor has departed, or is about to depart from the State with the intent to have his effects removted from the State. 5. Where the debtor is about to remove his property from the State, to the injury of creditors. 6, 7, and 8. Where the debtor has, within two years preceding the filing of the affidavit, fraudulently conveyed, concealed, or disposed of his property so as to hinder or delay his creditors, or is about to do so. 9. Where the debt sued for was fraudulently contracted, provided the statements have been reduced to writ- ing by him or his agents. The creditor must file an affidavit with the clerk of the court, stating the nature and amount of the indebtedness, and any one of the preceding causes, and the place of residence of the defendant, if known ; must give a bond to the defendant to prosecute his case and to pay costs if not successful. Officer also generally requires an indemnity bond. Aerest. The defendant may be arrested on mesne process, in actions of contract and on judgments, on an affidavit setting forth the cause and amount due, and facts showing that the defendant fraudulently contracted the debt, or that he has concealed, assigned, or disponed of property with in- tent to defraud his creditors; or, in actions sounding in damages merely, the facts of the case, and that the plaintiff believes that the benefit of the judg- ment will be lost unless the defendant is required to give bail. Plaintiff must also give security for damages and costs. After return of execution unsatisfied, setting forth the facts on which it is asked, and furnishing security, viz : In an action for damages not founded on contract, where defendant is a non-resident, or is about to remove from the State, or where action is for injury to person or character or for injury to or wrong- fully taking, detaining, or converting property; in an action for a fine or penalty or on a promise to marry, or for money received or property embez- zled, or fraudulently misapplied by a public officer, attorney, or other person, in a fiduciary capacity, or for any misconduct or neglect in office or in a pro- fessional employment; in an action for recovery of personal property dis- posed of or concealed to prevent its being taken by the sheriff, or where debt was fraudulently contracted, or where debtor has removed his property or is about to do so to defraud creditors. Arrest for debt is abolished. No fe- male can be arrested except on action for wilful injury to person, character, or property. The plaintiff must give security for the costs and damages. Attachment may issue in all cases against a foreign corporation which has not appointed an agent for service of process or, a non-resident, or a defendant who has absconded or concealed himself, or is about to remove his property from the State, or has disposed of or secreted his property, or is about to do so with intent to defraud creditors. Plaintiff must file affidavit stating ground of claim and amount and one of causes above stated or that debt was incurred for property obtained under false pretenses, and give security. Attachment may issue in certain cases before maturity of claim. 728 ABSTRACTS, COLLECTION OF DEBTS. Garnishment. Proceedings may be instituted prior to judgment in ac- tions on contracts, and after execution issued in any action. Judgment is a lien on defendant's real estate in every county w-liere it is docketed, for ten years from time of docketing in the county where rendered. Exemption. Homestead not exceeding one acre in a town plot, or one hundred and sixty acres elsewhere, with house and buildings, to the extent of five thousand dollars. All family pictures, pew, burial lot, family Bible and school-books, family library not exceeding in value two hundred dollars, wearing apparel oi debtor and family, provisions and fuel for one year, and other personal property to be selected by debtor not exceeding in value seven hundred and fifty dollars, or three hundred dollars if debtor is single. Instead of the seven hundred and fifty dollars exemption, debtor, the head of a family may select the following: — ^Books and musical instruments for use of family not exceeding two hundred dollars, household and kitchen furniture not exceeding two hundred dollars, two cows, five swine, two yoke of oxen or one span of horses or mules, twenty-five sheep and their lambs under six months old, and all wool from the same or cloth or yarn manu- factured therefrom, food for animals for one year, one wagon, one sleigh, two plows, one harrow, farming machinery and utensils not exceeding twelve hundred and fifty dollars; tools and implements of a mechanic used for hia trade or business, and stock in trade not exceeding two hundred dollars; li- brary and instruments of a professional man not exceeding three hundred dollars. Avails of life insurance received by widow or children are exempt to value of five thousand dollars. TENNESSEE. Actions. There is only one form for all actions, which are begun by a summons issued by the clerk of the court and directed to the sheriff. Plain- tiff must usually give security for costs. Aeeest. There is no arrest for debt in Tennessee. Attachment may be had at the commencement of the action for a debt or demand due or after action begun, either before or after judgment, for any cause, where, 1, the debtor is a non-resident; 2, or is about to remove him- self or his property out of the State; 3, or has removed out of the county of his residence privately, or is about to do so; 4, or has concealed himself so that process cannot be served on him ; 5, has absconded or concealed him- self or his property; 6, has fraudulently disposed of his property or is about to do so ; 7, where any person liable for a debt, and a non-resident, dies leav- ing property within the State; 8, where defendant is a resident of the coun- ty, but summons is returned "not found in the county." The plaintiff or his agent must make an oath in writing of the nature and amount of the debt, and one of the above causes, and give security to the defendant. Garnishment. Where property, choses in action, or effects of the de- fendant are in the hands of a third party, or such party is indebted to the defendant, attachment may issue by garnishment. Also on execution, where the sheriff cannot" find suficient property to satisfy the execution. Judgment is a lien on real estate, in the county where rendered, from the date of rendition, and in other counties from the date of registration of a ABSTEACTS, COLLECTION OF DEBTS. 729 certified copy ; but the lien is lost unless execution is taken out and the land sold within twelve months after rendition. Judgment bears interest at six per cent. -' Stay of Execution. On judgments before a justice of the peace execu- tion will be stayed for eight months on giving security for debt, interest, and costs. Exemptions. Ninety per cent, of the income already earned of a resident 18 years of age or over, earning or receiving $40.00 or under per month is exempted, and $36.00 when the amount exceeds $40.00. Personal property of the head of a family: two beds, bedsteads and bedding, and for every three children one additional bed, etc. ; the bedsteads not to exceed twenty- five dollars in value ; two cows and calves, and if the family consists of six persons or more, three cows and calves; one dozen knives and forks, dozen plates, six dishes, set of tablespoons, set of teaspoons, tray, two pitchers, waiter, coffee-pot, tea-pot, canister, cream-jug, one dozen cups and saucers, dining-table, and two table cloths, dozen chairs, bureau, not to exceed forty dollars in value, safe or press, wash-baSin, bowl and pitcher, washing-kettle, two washing-tubs, churn, looking glass, chopping-axe, spinning wheel, loom and gear, pair cotton cards, pair wool-cards, cooking-stove and utensils, set ordinary cooking utensils, meal-sieve, wheat-sieve, cradle, Bible and hymn- book, and all School-books, two horses or two mules, or one horse and one mule, or one horse or mule, and one yoke of oxen and gear, two-horse or one- horse wagon to the value of seventy-five dollars, and the harness, man's sad- dle, woman's saddle, two riding-bridles, twenty-five barrels of corn, twenty bushels of wheat, five hundred bundles of oats, five hundred bundles of fod- der, one stack of hay to the valUe of twenty dollars; if the family is less than six persons, one thousand pounds of pork slaughtered or on foot, or six hundred pounds of bacon ; or if the family consists of more than six persons, twelve hundred pounds of pork, or nine hundred pounds of bacon, poultry to the value of twenty-five dollars, fifty sheep and the fleeces from same, twenty-five stands of bees and the products of same; six cords of wood or one hundred bushels of coal, one sewing-machine, one hundred gallons of sorghum molasses, one hundred pounds soap, fifty pounds lard, one hundred pounds flour, fifty pounds salt, one hundred pounds beef or mutton, twenty pounds coffee, fifty pounds sugar, three bushels meal, one bushel dried beans, one bushel dried peas, fifty bushels of Irish potatoes, fifty bushels sweet po- tatoes, ten bushels turnips, one pair andirons, one clock, one pound each of- pepper, spice, and ginger, canned fruit put up for the family not exceeding twenty dollars in value, twenty bushels of pea-nuts, three strings of red pep- pers, four gourds, carpet in use, not exceeding twenty-five dollars in value, and two hundred bushels of cotton-seed. If the head of the family is en- gaged in agriculture, two plows, two hoes, grubbing-hoe, cutting-knife, harvest-cradle, plow-gears, pitchfork, rake, three iron wedges, five sheep, ten stock hogs. Also the tools of a mechanic, and if he be the head of a family, two hundred dollars' worth of lumber or material or products of his labor. One gun to every male person, and to every female who is the head of a family. To a head of a family, fifty pounds of picked cotton, twenty-five pounds wool, leather for winter shoes ; also three hundred pounds of tobacco 730 ABSTRACTS, COLLECTION OF DEBTS. in the hands of the producer, and thirty -five dollars' worth of roughness con- sisting of oats, fodder, or hay. A homestead of the head of a family of the value (Sf one thousand dollars. TEXAS. Actions are begun by petition filed with the clerk of the court upon which a citation issues to the defendant.' Arrest for debt is abolished. Attachments may issue upon an affidavit by the plaintiff or his attorney, stating that the debt is a just one, and the amount of the same, together with CT3 of the following grounds: 1. That defendant is a non-resident or a foreign corporation. 2. That he is about to remove out of the StatCj and has refused to pay or secure plaintiff's claim. 3. Or that he secretes himself, so that process cannot be served on him. 4. That he has secreted his property for the purpose of defrauding creditors, or is about to do so. 5. That he is about to remove his property out of the State, without leaving sufficient re- maining for the payment of his debts. 6. That he is about to remove his property beyond the jurisdiction of the court, with intent to defraud credi- tors. 7. That he is about to transfer or secrete his property, or has done so, with intent to defraud creditors. 8. That he is about to convert his property into money, fOr the purpose of defrauding creditors. 9. That the debt is due for property obtained under false pretences. And he must also swear that the attachment is not sued out for the purpose of injuring the defendant, and that the original petition is true, and give security to defendant. Garnishment may issue after suit brought on affidavit of plaintiff that the amount claimed is just, due, and unpaid; that he does not know of any property of defendant not exempt, sufficient to satisfy the claim, and that he believes that any parties (naming them) are indebted to the defendant, or have property or effects of the defendant; also, where judgment has been rendered, or attachment sued out on affidavit. Judgment is a lien on real estate in the county where it was rendered, and in other counties it Ijecomes such by filing a transcript. The lien continues for ten years, but unless execution issues within twelve months it ceases to bind the property. Stat Laws. Stay of execution is allowed only in justices' courts for three months, on giving bond with good security. Exemptions. A homestead of two hundred acres not in any town or city, or a lot or lots, in a city, town, or village, not to exceed five thousand dollars in value. Also to every head of a family, all household and kitchen furni- ture, al! implements of husbandry, tools or apparatus of trade or profession, family library, and family portraits and pictures, five milch cows and calves, two yoke of oxen with yokes and chair, two horses and one wagon, one car- riage or buggy, one gun, twenty hogs, twenty head of sheep, all provisions and forage for home use, bridles, saddles, and harness necessary for the use of the family, and a lot in a cemetery; to every person not the head of a family, a horse, bridle, saddle, necessary wearing apparel, tools, apparatus, and private library, and burial lot. Current wages cannot be garnisheed. ABSTRACTS, COLLECTION OT DEBTS. 731 UTAH. Actions. There is but one form of civil action, which is commenced by the filing of a complaint and the issuing of a summons. Non-residents may be required to give security for the costs. Arrest. No person can be arrested in a civil action except an absconding debtor. Plaintiff must show by affidavit that case is within this provision, and furnish written undertaking with two sureties for not less than five hundred dollars, to pay all costs and damages incurred by defendant in case the arrest b^ unlawful. Attachment. Attachment may issue at commencement of the suit or at any time thereafter, on filing with the clerk of the court an affidavit show- ing that defendant is indebted to plaintiff, specifying the amount above all legal set-offs, and whether upon a judgment or an express or implied con- tract, and that the same has not been secured by mortgage or pledge, or that if originally so secured, that the security has become valueless without any act of the plaintiff, that the same is an actual, bona fide, existing de- mand, due and owing from defendant to plaintiff, and that the attachment is not sought nor the action prosecuted to hinder, delay, or defraud any credi- tor, and specifying one or more of the following causes : That the defendant is a non-resident, or has departed or is about to depart from the State to the injury of his creditors, or stands in defiance of an officer, or conceals himself so that process cannot be served upon him, or has assigned, disposed of, or concealed any of his property with intent to defraud hia creditors, or is about to do so, or has fraudulently contracted the debt or incurred the obligation on which the action is brought. Plaintiff must also give security for costs and damages. Garnishment. Property or debts due to defendant from third persons may be garnished. Judgments are liens upon real estate owned by the defendant in the coun- ty, for eight years from the time of docketing, and may be made liens in any other county, from the time of filing a transcript with the recorder. Stat LAvsrs. There is no provision for the stay of execution, except by appeal. Exemptions. Chairs, tables, desks, and books of the value of two hun- dred dollars; library and musical instruments, necessary household furni- ture, etc., of the value of three hundred dollars; sewing-machine, carpets, family paintings, provision on hand for three months, two cows with their sucking calves, and two hogs and all sucking pigs, wearing apparel, beds and bedding; farming implements of the value of three hundred dollars; two oxen, horses, or mules, and harness, and food for animals for sixty days; a cart or wagon ; seed, grain, or vegetables, not exceeding in value two hun- dred dollars; crops not exceeding two hundred dollars; tools and imple- ments of a mechanic or artisan, not exceeding in value five hundred dollars; the seal and records of a notary public ; the instruments and chests of a surgeon, physician, surveyor, or dentist, with their libraries, and the law li- braries and office furniture of attorneys and judges, and libraries of minir,- ters, type-writing machine of stenographer, etc. ; ' printing presses, type^ etc.. 732 ABSTRACTS, COLLECTION OF DEBTS. of printer, not exceeding five hundred dollars; the cabin of a miner, not ex- ceeding five hundred dollars in value, and his tools and appliances not ex- ceeding in value five hundred dollars; ,two oxen, horses or mules, and har- ness and vehicle by which a cartman, huckster, teamster, or other laborer habitually earns his living; and one horse, harness, and vehicle of a physi- cian, surgeon, or minister, vpith feed for the horse for three months; one half the debtor's earnings for personal services within thirty days preceding the levy if he has a family dependent on him ; life insurance policies ^and benefits where the annual premiums do not exceed five hundred dollars; all arms, ammunition, and accoutrements required by law to be kept; all public buildings and churches; to the head of a family, a homestead to be selected by the debtor, not exceeding fifteen hundred dollars in value, and the further sum of five hundred dollars to his wife, and two hundred and fifty dollars for each other member of his family. VERMONT. Actions. The common law is in force, and {he old actions are in use. Process is by writ of summons or attachment. Akkest. Defendant may be arrested in any action of tort for want of attachable property, and in an action of contract, or on execution issued in an action of contract, on an affidavit that the affiant believes that defendant is about to abscond or remove from the State, and has secreted his property to Jhe amount of twenty dollars not exempt. Females cannot be arrested in actions of contract. Attachment issues of right on original writ, without affidavit or bond. Personal property attached must be taken possession of by the officer or a copy of process and return thereon filed in town clerk's office and notice given to the defendant. It is a lien on personal 'property for thirty days after judgment, and real property for five months from such judgment. Garnishment is called Trustee Process. Action on contracts may be begun by trustee process, and any persons having goods, effects, or credits may be summoned and the property attached. Debts and legacies, abso- lutely due, may be so attached, and corporations summoned as trustees. Judgments bear interest at six per cent., and are not liens on real prop- erty. (See Attachment.) There is no stay of execution. Exemptions. Suitable apparel, bedding, tools, arms, and articles of household furniture necessary for the debtor and his family, one sewing- machine, one cow, not exceeding one hundred dollars in value, the best swine, or meat from one swine, ten sheep not exceeding one hundred dollars in value, and one year's produce in wool, yarn, or cloth, forage for ten sheep and one cow and two oxen or horses, for the winter, ten cords of firewood or five tons of coal, twenty bushels of potatoes, all growing crops, ten bushels of grain, one barrel of flour, three swarms of bees, and hives and produce in honey, two hundred pounds sugar, lettered gravestones, Bible and other books used in the family, one pew in church, live poultry to the value of ten dollars, professional books and instruments of physician or dentist, and pro- fessional books of an attorney or clergyman, in each ease to the value of two hundred dollars, one yoke of oxen or steers, two horses kept and used ABSTRACTS, COLLECTION OF DEBTS. 733 for team work, and such as the debtor may select in lieu of one yoke of oxen or steers, but not exceeding three hundred dollars in value, arms and equip- ments used by any soldier in the service of the United States and kept as mementoes of service, one two-horse wagon or one one-horse wagon or one ox cart, one sled or set of traverse sleds, two harnesses, two halters, two chains, one plow, and one ox yoke which, with the oxen, steers, or horses ex- empted, shall not exceed three hundred and fifty dollars in value, also me- chanic 's tool chest. A homestead of a housekeeper, or head of a family, to the value of five hundred dollars. VIEGINIA. Actions. The common law forms, except replevin, remain, and actions are begun by original writ and summons. The assignee of a bond or note may sue in his own ijame. * AiTTACHMENT may issue on affidavit that a defendant is — 1. A foreign corporation; 2. Is a non-resident of the State having estate or debts due him within the county where suit is brought; or 3. Is removing or about to re- move from the State with intent to change domicile; or 4. Has removed or is about to remove property sued for, or his estate or a material part thereof so that execution on a judgment will be unavailing; or 5. Has converted or is about to convert his property or part thereof into money, securities, etc., with intent to hinder, delay, or defraud creditors; or 6. Has disposed of or is about to dispose of his estate or part thereof with like intent ; or against a tenant for rent not due but payable within a year, on af&davit stating amount of rent reserved, when payable, and that tenant has within thirty days/emoved or is about to remove his effects from the premises, not leaving property liable to distress, sufficient to satisfy the rent to become payable; or against a vessel or the estate of the master or owner on a claim for ma- terials or supplies, or for wharfage, pilotage, contract for transportation, or for injury to person or property by such vessel or any person in charge of her. Aerest. There is no imprisonment for debt, but defendant may be ar- rested and held to answer on an affidavit showing the cause of action, the amount claimed, and that the defendant is about to quit the State. Garnishment is allowed on original attachment against any person hav- ing goods, effects, or credits of defendant, or who is indebted to him, and also on writ of fieri facias, on suggestion by judgment creditor that there is a lien by such writ on any third party as having property of the defendant. Judgment is a lien on real estate in the counfy where rendered from the first day of the term when rendered, and every other county from the time of docketing in such county, but as against a purchaser for value it must be duly docketed. The lien may be enforced in a court of equity. If it appears to the- court that the rents and profits of the property subject to the lien will not satisfy the judgment in five years, it may order the property, or part of it, to be sold, and apply the proceeds to discharge the judgment. Judgments bear interest at six per cent. 734 ABSTRACTS, COLLECTION OF DEBTS. Stat op Execution. There is no stay of execution except on appeal, and on small claims in the justice courts, in which on security being given ex- ecution may be stayed for a period not exceeding ninety days. , Exemptions. To a householder — 1. Family Bible. 2. Family pictures, school-books and library for family use, to the value of one hundred dol- lars. 3. Seat or jjcw in church. 4. Lot in a burying-ground. 5. Necessary •wearing apparel, beds, bedding, and bedsteads, stoves and appendages put up, and necessary for family use, not exceeding three. 6. One cow and her calf, one horse, six chairs, one table, six knives, forks, and plates, one dozen spoons, two dishes, two basins, one pot, one oven, six pieces wood or earthen ware, one loom and appurtenances, one safe or press, one spinning wheel, one pair of cards, one axe, two hoes, ten barrels corn, or in lieu thereof twenty-five bushels of rye or buckwheat, five bushels wheat, or one barrel of flour, two hundred pounds of pork or bacon, three hogs, forage or hay to the value of ten dollars, one cooking-stove and utensils, one sewing-machine, a mechanic's tools and utensils of trade to the value of one hundred dollars, the boat and tackle of an oysterman or fisherman not exceeding two hundred dollars; and to a laboring man being a householder, wages not exceeding fifty dollars per month. If the debtor is engaged in agriculture, one yoke of oxen, or one pair of horses or mules, with necessary gearing, one wagon or cart, two plows, one drag, one harvest cradle, one pitchfork, one rake, two iron wedges. In addition to the above is allowed to a householder, widow, or minor children, a homestead of real estate or personal property to the value of two thousand dollars, except as to certain preferred claims. WASHIN&TON. '■ Actions. All distinctions in the forms of actions are abolished. They must be prosecuted by the real party in interest, and are commenced by fil- ing a petition and serving a summons. Abkest. Defendants may be arrested by order of court in tlie following cases: in an action for the recovery of damages, on a cause of action not arising out of contract, when defendant is a non-resident or is about to re- move from the State, or in an action for injury to person or character, or for injuring or wrongfully taking, detaining, or converting personal property; in an action for a fine or penalty or on a promise to marry, or for money re- ceived or property embezzled or fraudulently misapplied or converted to his own use by a public officer, attorney, an officer or agent of a corporation, a factor, agent, broker, or other person acting in a fiduciary capacity, or for ndsconduct or neglect in office or professional employment; in an action to recover the possession of personal property unjustly detained, when it has been concealed, removed, or disposed of so that it cannot be taken by the sheriff, with intent that it shall not be taken, so as to deprive plaintiff of benefit thereof; when defendant has been guilty of fraud in contracting the debt or incurring the obligation on which the suit is brought, or in conceal- ing or disposing of property sued for; or has removed or disposed of his property, oris about to do so, with intent to defraud creditors; when the ac- tion is to prevent threatened injury to property in which plaintiff claims an interes't ; on final judgment or order of. court when defendant having no ABSTBACTS, COLLECTION OF DEBTS. 735 property subject to execution has money which he ought to apply in payment but refuses, with intent to defraud plaintiff. Plaintiff must furnish security for costs and damages. Attachment may be had on filing afBdavit of net amount due and that attachment is not sought, nor action brought to hinder, delay, or defraud creditors, and either that defendant is a foreign corporation, or a non-resi- dent; or that he conceals himself, or has absented himself from his usual place of abode so that process cannot be served on him; or that he has re- moved or is about to remove property from the State to delay or defraud creditors; or that he has assigned, secreted, or disposed of property, or is about to do so to delay or defraud creditors ; or that he is about to convert property into money to place it beyond reach of creditors ; or that debt was fraudulently contracted; or that damages sued for are for injuries arising from some felony or for seduction. Attachment may issue before debt is due, on affidavit that defendant is about to dispose of property to defraud creditors ; or that he is about to re- move from the State, and refuses to arrange for payment of debt, which con- templated removal was unknown to plaintiff when debt ivas contracted; or that he has disposed of property to defraud creditors; or that debt is for property obtained by false pretenses. Plaintiff must give security. Garnishment. t)ebts, credits, and personal property in the hands of third persons may be attached. Wages to amount of one hundred dollars exempt, except for necessaries, then only part of that amount. Judgment is a lien on land for five years from date of judgment in the county where rendered, in other counties from date of filing transcript ^witl, county clerk. Stay op Execution is allowed on judgments as follows: In the Supreme Court, on sums under five hundred dollars, thirty days; on sums between five hundred and fifteen hundred dollars, sixty days; on sums over fifteen hundred dollars, ninety days. In the Superior Court, on sums under three hundred dollars, two months; between three hundred and one thousand dol- lars, five months ; over one thousand dollars, six months. Exemptions. To every person all wearing apparel, private libraries not exceeding five hundred dollars in value, family pictures and keepsakes, fire- arms, and a boat. To a householder being the head of a family, a home- stead of the value of two thousand dollars, while occupied by such family; one bed and bedding, and one additional bed and bedding for every addi- tional member of the family, and other household goods of the value of five hundred dollars; two cows with their calves, five swine, two stands of bees, thirty-six domestic fowls, and provisions and fuel for six months. To a farmer, one SDan of horses and harness, or two yokes of oxen, one wagon with farming utensils not exceeding five hundred dollars in value, one hundred and fifty bushels of wheat and oats or barley, fifty bushels of potatoes and ten bushels each of corn, peas, and onions. To a mechanic, the tools of his trade, and material to the value of five hundred dollars. To a physician, his library not exceeding five hundred dollars in value, horse and carriage, and instruments, and medicines to value of two hundred dollars. To attorneys and clergymen, and other professional men, their libraries not exceeding one 736 ABSTRACTS, COLLECTION OF DEBTS. thousand dollars in value and office furniture, stationery, and fuel, worth two hundred dollars. To persons engaged in lightering, one or more lighters or scows and a small boat, not exceeding the aggregate value of two hundred and fifty dollars. To a teamster, a span of horses or mules, harness, and one wagon, cart, or dray. To a person engaged in logging, three yokes of oxen and implements of the value of three hundred dollars. Proceeds of life insurance and pensions are also exempt. WEST VIEGINIA. Actions. The old forms of actions and writs are preserved, and actions are begun in justices' courts by. service of summons returnable in not less than five, nor more than thirty, days; in circuit courts, returnable within ninety days. The assignee of a bond, note, or writing not negotiable, may sue in his own name. Attachment is allowed in actions for any claim or debt on contract, or for damages for any wrong, on an affidavit on behalf of the plaintiff, stat- ing the nature and amount of the claim, and 1. That defendant, or one of defendants, is a foreign corporation or non-resident. 2. That he, has left, or is about to leave, the State with intent to defraud creditors. 3. That he so conceals himself that service cannot be had on him. 4. That he is remov- ing, or is about to remove, his property from the State, so that an execution, when obtained, will be unavailing. 5. That he is converting, or is about to convert, his property into money or securities with intent to defraud credi- tors. 6. That he has assigned or disposed of his property, or is about to do so, with intent to defraud creditors. 7. That he has property or rights of action which he conceals. 8. That he fraudulently contracted the debt or liability in question. Plaintiff must also give security for damages and costs. Arrest. Defendant may be arrested and held to bail on an affidavit stat- ing the nature aiid justice of the claim, and the amouiit, and, 1. That de- fendant has removed, or is about to remove, his property from the State, with intent to defraud creditors. 2. That he has converted, or is about to convert, his property into money with like intent. 3. Or has assigned, dis- posed of, or removed his property, or is about to do so, with like intent. 4. That he has property or rights in action which he fraudulently conceals. 5. That he fraudulently contracted the debt or liability. 6. That he is about to leave the State permanently, without having paid plaintiff 's demand. Plaintiff must also give security for damages and costs. Garnishment. In the writ of attachment, the plaintiff may designate any third parties as having effects of the defendant 'in their hands, and such parties may be summoned as garnishees. Judgments bear interest at six per cent. ; are liens on real estate in every county from the date of docketing in the county where the land is, and the lien continues for ten years, but the judgment must be docketed within sixty days from the date of rendition, or before any deed from the debtor to a third pnrty is delivered for record. A writ of fieri facias is a lien on per- sonal property from the time of delivery to the sheriff. ABSTRACTS, COLLECTION OF DEBTS. 737 Stay Law. In justices* courts, by giving bond with surety, stay of ex- ecution is allowed as follows: Where the judgment, exclusive of interest and costs, does not exceed fifty dollars, two months; between fifty and one hun- dred dollars, five months; over one hundred dollars, six months. Exemptions. Any husband or parent, or the widow, or infant children of deceased parents may set apart a homestead to the value of one thousand dollars, as against debts accrued after date of filing declaration of home- stead, and personal property to the value of two hundred dollars. The work- ing tools of a mechanic, artisan, or laborer, to the value of fifty dollars, pro- vided the whole amount of exemptions does not exceed two hundred dollars. WISCONSIN. Actions. All distinctions have been abolished, and there is now but one form, which must be prosecuted in the name of the real party in interest, except in case of executors, administrators, and trustees, and which is begun by'the service of a summons on the defendant. Arrest. Defendant may be arrested, 1. In an action to recover damages not on contract, where the defendant is a non-resident, or is about to re- move from the State, or where the action is for injury to the person or char- acter, or for injury to, or wrongful taking, detaining, or converting prop- erty, or in an action to recover damages for property taken under false pre- tences. 2. In an action for a flue or penalty, or for money received, or prop- erty embezzled, or fraudulently misapplied by a public ofSeer or attorney, or an officer of a corporation as such, or factor, agent, or broker, or for mis- conduct or neglect in official or professional employment. 3. In an action to recover property unjustly detained, where it is so concealed that the sheriff cannot find the same. No female can be arrested except for wilful injury to person, character or property. An affidavit must be made on the part of the plaintiff, stating the cause of action, and one of the above causes, and security must be given to defendant. Attachment is allowed on an affidavit that the defendant is indebted to plaintiff, and stating the amount, which must exceed fifty dollars, that it is due on contract or judgment, and,. 1. That defendant has absconded, or is about to abscond, or is concealed to the injury of his creditors, or to avoid service of summons. 2. That defendant has assigned, disposed of, or con- cealed his property, or is about to do so, with intent to defraud creditors. 3. That the defendant has removed, or is about to remove, his property from the State, with intent to defraud creditors. 4. That the debt was fraudulently contracted. 5. That he is a non-resident. 6. Or a foreign corporation, or if incorporated in the State, that all the proper officers on whom to make service are non-residents or cannot be found. Or the affidavit shall state that a cause of action sounding in tort exists for an amount exceeding fifty dollars, and that the defendant is not a resident of the State, or that his residence is unknown and cannot be ascertained, or that defendant is a for- eign corporation. Attachment may issue on a demand not yet due in any case mentioned in the first four subdivisions. Plaintiff must also give bond. Garnishment is allowed on an affidavit on behalf of the creditor, that he believes that any third person (naming him) has property, effects, or credits 47 738 ABSTRACTS, COLLECTION' OF DEBTS. of defendant, or is indebted to him, and that defendant has not property suflScient to satisfy his demand; also on execution, on a similar afifldavit. Judgment is a lien on real estate, in the county where rendered from the date of docketing, and in other counties from the time of filing a transcript, and the lien continues for ten years. It bears interest at six per cent., ex- cept judgment for foreclosure which is at rate specified in mortgage, not ex- ceeding six per cent. , Stay Laws. In justices' courts, on giving bond with surety within five days after, judgment was rendered, stay of execution is allowed as follows : On sums not exceeding ten dollars, exclusive of costs, one month; between ten and thirty dollars, two months; between thirty and fifty dollars, three months ; over fifty dollars, four months. Exemptions. A homestead not exceeding forty acres, used for agricul- ture, and a residence, and not included in a town plat, or a city or village, or instead, one-quarter of an acre in a recorded town plat, city, or village occupied and not exceeding five thousand dollars in value. Also, 1. Family Bible. 2. Family pictures and school-books. 3. Private library. 4. Seat or pew in church. 5. Eight of burial. 6. Wearing apparel, beds, bedsteads, and bedding kept and used in the family, stoves and appurtenances put up and used, cooking utensils and household furniture to the value of two hun- dred dollars, one gun or other firearm to the value of fifty dollars. 7. Two cows, ten swine, one yoke of oxen, one horse or mule, or, in lieu thereof, a span of horses or mules, ten sheep and the wool therefrom, necessary food for exempt stock for one year, provided or growing, or bott, one wagon, cart, or dray, one sleigh, one plow, one drag, and other farm utensils includ- ing tackle for the teams, to the value of two hundred dollars. 8. Provisions and fuel for the family for one year. 9. Tools and implements, or stock in trade of a mechanic or miner, trader, or other person, used and kept for carrying on business, not exceeding two hundred dollars in value. 10. Money arising from insurance of exempt property destroyed by fire. 11. Interest in patents held by the inventor. 12. Sewing-machine. 13. Sword, plate, books, or articles presented by Congress, or legislature of a State. 14. Printing materials and presses to the value of fifteen hundred dollars, but only four hundred dollars is exempt from payment to employees. 15. Earn- ings of a married person necessary for family support, :^or three months previous to issuing process, not exceeding sixty dollars per month. 16. Horse, arms and equipments of a militiaman. 17. Books, maps, etc, used for making abstracts of title to land. 18. Pensions. 19. One thousand dol- lars in shares of building association held by one not owning homestead. Proceeds of policy of insurance on life of a minor, payable to parents, are exempt as against their creditors, but not against creditors of the minor. WYOMING. Actions. There is but one form of action at law, which is commenced by filing a petition on which a summons issues. Akrest. An order of arrest may be obtained on plaintiff 's giving security and filing affidavit setting forth the nature and amount of his claim, that it is just, and establishing one or more of the following particulars: 1. That ABSTRACTS, COLLECTION OF DEBTS. 739 defendant has removed or begun to remove property out of jurisdiction of court with intent to .defraud creditors. 2. That he has iDegun to convert property into money to place it beyond reach of creditors. 3. That he has property or rights of action fraudulently concealed. 4. That he has as- signed, removed, or disposed of property to defraud creditors. 5. That he fraudulently contracted debt on which suit is brought. 6. That the money or thing for which recovery is sought was lost by gambling or by bet or wager. On substantially same grounds defendant may "he arrested on ex- ecution by order of court. No female can be arrested except for wilful injury to person, character, or property. Attachments are granted in a civil action for the recovery of money, on plaintiff's giving security and filing an affidavit stating the nature and amount of his claim, that it is just, and the existence of one of the following grounds: 1* That defendant is a foreign corporation or non-resident. 2. Has absconded with intent to defraud creditors. 3. Has left county of resi- dence to avoid service of summons. 4. Conceals himself so that summons cannot be served on him. 5. Is about to remove his property out of the jurisdiction of the court, with intent to defraud creditors. 6. Is about to convert his property into money to place it beyond reach of creditors. 7. Has property or rights of action concealed. 8. Has assigned, removed, or disposed of his property, or is about to do so, to defraud creditors. 9. Fraudulently contracted debt sued on. Attachment, may issue on claims not yet due, on affidavit showing existence of any of the above grounds from second to ninth inclusive. Garnishment. When plaintiff makes oath in writing that he believes that any person or corporation named has property of the defendant in his possession, describing the same, and the officer cannot get possession of such property, such person or persons may be summoned as garnishee. Judgment is a lien on real estate in the county where entered, from the first day of the term at which judgment is entered, except judgments by con- fession and those rendered at the term action is commenced, which are bind- ing only from the day they are rendered. Unless execution is taken out and levied within one year, the judgment ceases to be a lien as against any other judgment creditor, and unless the execution is taken out within five years, the judgment becomes dormant and the lien expires. Stat op Execution is allowed in justices' courts and District Courts for six months on filing bond. Exemptions. Every householder, the head of a family, is entitled to a homestead not exceeding in valu« twenty-five hundred dollars, consisting of a honse or lot in a town or city, or a farm of not more than one hundred and sixty acres of land. The wearing apparel of every person is exempt, and the following property owned by any person the head of a family, viz: the family Bible, pictures, and school-books; rights of burial; furniture, bed- ding, provisions, and such other articles as the debtor may select, not to ex- ceed in all the value of five hundred dollars; the toolp, team, and imple- ments, or stock in trade, of a mechanic, miner, or other person, used or kept for the purpose of carrying on his trade or business, not exceeding three 740 LIENS OF MECHANICS AND MATEEIAL MEN. hundred dollars; the library, instruments, or implements of any professional man, not exceeding three hundred dollars; half the earnings of debtor withi- in sixty days before levy not exceeding fifty dollars, when necessary for sup- port of family. CHAPTER XXXVII. TH£ XIENS OF HECHANICS AND MATERIAL HEN FOB THEIR WA0E8 ASH MATERIALS. In nearly all our States there are now some provisions for se- curing to mechanics, and to persons supplying materials (who are called "material men"), their wages and pay for their ma- terials, by means of liens, as they are called in law. A lien is a hold upon or a valid claim against property. This means that every mechanic employed upon a house, and, in most of the States, upon a vessel, and in some upon any property whatever, as a railroad or canal, either in the construction or repair of it, has a lien upon the property on which he has labored, or for which he has supplied materials, for the amount of his wages and the price of his materials. This lien or claim he has for a certain time ; and during that time he may either sue for his wages or materials, and make an attachment of the property, or in some States, file- a petitioij with the proper court; and in either case he may have the property sold to pay for his wages or materials, unless the owner redeems it. And, not only must the lien be enforced within a limited time, but care is taken that notice of the intention to claim a lien shall be given to the owner of the property, either directly or by put- ting the notice on record. The reason of these precautions is obvious enough. The purpose of the law is to assist and protect the mechanic, or material man, but not to enable him to commit a fraud or do an injury to his neighbors. And it would be an in- jury to a man to let him buy a house and pay full price for it, and then tell him that the mechanics who built it had a lien (which is much the same in effect as a mortgage) upon the house, without his knowing anything about it. And it would be an in- jury to an owner, who had contracted with the master-workman to repair or change his house at great expense, to settle with this NOTICE UNDER MECHANICS ' LIEN LAW. 741 master workman in due time, and pay liim tlie full amount of his bill, without any notice to the owner that he was under an obliga- tion to pay again for all the labor spent upon his house, or let the house go on execution. Of all the laws for the recovery of debts, and the enforcement of the liens of mechanics referred to in this and the preceding chapter, the provisions now in force are quite recent. Only of late years has imprisonment for debt been greatly mitigated or abolished, and the trustee or garnishee process made what it now is, exceedingly convenient and useful. The homestead law and the lien law, though now so universal, are modern inventions, or, at least, of modern introduction. One effect of this recent origin is, that important practical questions still exist as to their con- struction, application, and effect, which -only time can solve. I give, annexed to this chapter, an abstract of the Laws of all the States relating to Mechanics ' Liens. In this chapter nothing more has been attempted than to indi- cate distinctly to the mechanic what rights he may possess and what securities he may hold, and how he may lose the rights and securities he possesses, and to the owner or .buyer what liabilities he may incur, unless the one and the other take the proper course which the law has provided for their safety. The forms to be used under the lien laws are not usually pre- scribed by statute. Those given below^ are in use in some of our principal cities; and the same, in substance, would be suitable anywhere, with such modifications as may be necessary to adapt them to the provisions of the law of the State where they are to be used. (333.) A Notice under Mechanics' lien Law. (To' be filed with the Cleric of the County or other officer designated iy stat- ute.) To Esquire, Cleric of the County of Sis, Please to take Notice, That I, , residing at No. Street, in , have a claim against amounting to the sum of due to me, and that the claim is made for and on account of (here state the voorh or materials) and that such work was done (or materials furnished) in pursuance of {here describe the contract) which bu.ilding is owned by , situated in the ward, of the city of on the 742 LIENS 6f mechanics AND MATERIAL MEN. side of Street, and is known as No. The follow- ing is a diagram of said premises (or, the said premises being described as follows). And that I have and claim a lien upon said house or building, and the appurtenances and lot on which the same shall stand, pursuant to the pro- visions of an act of the Legislature of the State of to secure the payment of mechanics, laborers, and persons furnishing materials towards the erection, altering, or repairing of buildings. Dated, this '. day of , 19 . (Signature.) County op , 1 City op j ^®' (The name of the party claiming the Ken) being duly sworn, says, that he is • ■ the claimant mentioned in the foregoing notice of lien, that he has read the said notice and knows the contents thereof, and that the same is true to his own knowledge, except as to the matters thereili stated on information and belief, and as to those matters he believes it to be true. Sworn to before me, this , day of , 19 (Signature.) (334.) A Bill of Particulars of Mechanic's Claim. (To hie served on owner, and in some States to be recorded with the notice.) A Bill of Particulars Of the amount claimed to be due from for and on account of (work or materials) and that such work was done (or materials furnished) in pursuance of (state the contract or order) which building is owned by , situated in the ward of the city of on the side of Street, and is known as No. ^ of said street. (Mere insert itemized statement of labor and materials furnished with the date of each item.) (Signature of Claimant.) To (name of owner.) (Date.) (335.) A Release and Discharge of a Mechanic's Lien, I do Hereby Certify, That a certain mechanic's lien, filed in the oflSee of the clerk of the county of the day of , one thousand nine hundred and , at o 'clock in the , noon, in favor of claimant against the building and lot, situate side of : street, and known as No. in said street, whereof is owner, and is contractor, is discharged. (Signature.) ss. On the , day of , one thousand nine hundred and , before me came who is known to me to be the indi- vidual described in; and who executed the above certificate and acknowl- edged that he executed the same; ABSTEACTS, MECHANICS' LIENS. 743 (336.) Release and Discharge of a Meclianic's Lien — Another Form. Whereas, We, the subscribers, have erected and furnished materials for erecting on lot or piece of ground situate ; and have agreed to release all liens whi?h we, or any or either of us have, or might have, on the said by reason of materials furnished, or work performed, for erecting the same. Now these presents witness, that we, the subscribers, for and in consideration of the premises, and of the sum of one dollar, to each of us at or before the sealing and delivery hereof by the said well and truly paid, the receipt whereof we do hereby acknowledge, have remised, released, and forever quit-claimed, and by these presents do rranise, release, and forever quit-claim uAto the said and to his heirs and assigns, all and all manner of liens, claims, and demands whatso- ever, which we, or any or either of us, now have, or might or could have, on or against the said and premises, for work done, or for. materials furnished, for erecting and constructing the said building, or otherwise how- soever. So that he, the said and his heirs and assigns, shall and may have, hold, and enjoy, the said and premises, freed and dis- charged from all liens, claims, and demands whatsoever, which we, or any or either of us now have, or might or could have, on or against the same, if these presents had not been made. In Witness Whereof, We have hereunto set our hands and seals the day of the date written opposite our respective signatures. (Date.) (Witnesses at signing.) (Signatures of Claimants.) ABSTRACT OF THE LAWS OF ALL THE STATES RELATING TO MECHANICS' LIENS. ALABAMA. Every mechanic or other person who performs aty work or labor, or fur- nishes any materials or fixtures, erection, or improvement on land, or does any repairing on the same by virtue of a contract, has a lien on such build- ing or improvement, and upon the land on which it is situated, to the extent of one acre. The original contractor within six months, and any laborer within thirty days, and any other person within four months, must file with the judge of probate a verified statement of the account and description of the property, and name of owner, and action must be brought to enforce the lien within six months from the maturity of the debt. Mechanics also have a lien on articles made or repaired by them. ALASKA. Persons performing labor or furnishing materials at the instance of an owner, or his age"ht, upon any construction work, have a lien thereon, and upon the land on which it is located, for such labor or materials, but if the one causing the work to be done or materials furnished owns less than a 744 LIENS OF MECHANICS AND MATERIAL MEN. fee simple, then only such interest, as he owns is subjected to a lien. Origi- nal contractors must within ninety .days, and others within sixty days, of the completion of the work file a statement of their claims with the recorder of the precinct, in order to perfect their liens. Suit must be brought within six months, or, if credit is given, within six months of the expiration of the credit, but no agreemeni; to give credit can preserve a lien longer than one year from completion of work. One performing work on an article has a lien thereon and may retain possession thereof until paid, and after ninety days may sell it at auction, first giving three weeks' notice of the sale. There are also special liens in favor of miners and laborers in mines and mining property. s ABIZONA. Every person performnig labor upon or furnishing materials for the con- struction, alteration, or repair of any building or other structure or im- provement, may have a lien thereon, and on the land necessary for the con- venient use and occupation of the same. The claimant, iuust, within ninety days after the completion of the labor or furnishing materials, file in the office of the county recorder where the property is situated the contract, or, if" it be verbal, a copy under oath of the bill of particulars, and furnish a duplicate to the debtor; a subcontractor shall, within sixty days from com- pletion of the work, deliver to the owner if he can be found in the county, otherwise to the county recorder, an attested account of the labor and ma- terials furnished. Liens are to be foreclosed by suit within six months. AEKAN'SAS. A mechanic or other person performing any work or labor, or furnishing any material or fixture, erection, or improvement on land or doing any re- pairing on the same by virtue of a contract, has a lien on such building or improvement, and upon the land upon which it is situated not exceeding one acre. He must file with the clerk of the circuit court of the county where the land is, within ninety days after ceasing to labor or to furnish materials, a just and true account of the claim, and description of the property, verified by affidavit, and suit must be begun within ninety days thereafter. Parties other than original contractor must give ten days' notice before filing claim. Actions must be commenced within fifteen months after filing the lien. La- borers have eight months in which to bring suit to enforce their lien. CALIFORNIA. Every person performing labor upon, or furnishing materials to be used in the construction, repairing or altering, any structure, has a lien on the same for his services. In case the work is done under an entire contract, the owner is not answerable under the liens for an amount greater than he owes under such contract; provided he has filed in the office of the county re- corder with such contract a bond with sureties for fifty per cent, of contract price conditioned for payment of all claims for labor and materials. , Owner may withhold amounts of claims of which he has received notice. Original contractors must file their claims for liens with county recorder within sixty ABSTRACTS, MECHANICS' LIENS. 745 days, and others within thirty days after completion of the work. Unless within ten days after completion of work owner flies notice of date of com- pletion claimants have ninety days after completion to file claims. Action cannot be brought until expiration of time allowed for filing lien, nor after ninety days after such expiration. ' COLOEADO. Any person performing work, or furnishing materials on any building or other structure, or on a mine, at the instance of the owner or his agent, has a lien on the same, together with so much of the land as is necessary to the convenient use and occupation of such building or structure, and he must, within three months after the completion of the work, if an original con- tractor, two months if a material man, or one month if a laborer, file a sworn statement in the county recorder's office containing a notice that he claims such lien, the amount due, name of the owner and employer, the terms and conditions of the contract, and a description of the property. For labor or materials for. mine or mill, statement must be filed in sixty days, and notice given to owner. Action to enforce the lien must be brought within six months after filing statement. Liens extend only to the contract price, but if the contract exceeds five hundred dollars and is not in writing and filed for record, liens subsist for all labor done or mate'rials furnished. CONNECTICUT. A lien is allowed on every building or railroad in the construction or re- pairing of which any person has a claim for labor or materials exceeding ten dollars. The lien is dissolved unless, within sixty days after ceasing to labor or furnish materials, such person files with the clerk of the town where the bifllding is, or, in the case of a railroad, with the Secretary of State, a description of the premises, the amount of the lien, and the date of the com- mencement of the claim, the same being subscribjed and sworn to. Fore- closure proceedings must be commenced within two years. DELAWARE. A lien is allowed to any person furnishing materials or labor, or both, on any building or structure in excess of twenty-flve dollars. The original contractor must file in the office of the Prothonotary of the Superior Court a statement not sooner than ninety or later than one hundred and twenty days after the completion of the building — other persons within ninety days after ceasing to labor or furnish materials. Claims fpr less than one hundred dollars must be filed in not less than twenty nor more than thirty days. The statement must be made under oath and contain the names of the claimant, owner, and contractor, the amount claimed, and a bill of particulars of the work done, the time when the work was done, the locality of the building and description thereof, and allege that the work was done or materials furnished, on the credit of the building or structure, that the amount of the claim exceeds seventy-five dollars, and remains unpaid. Suit must be teommenced within one year after the notice is filed. The provisions of the laws have been extended to plumbing, gas-fitting, paper-hanging, 746 LIENS OF MECHANICS AND MATERIAL MEN. placing iron-works and machinery In mills and factories, bridge-building, construction and filling in of wharves, piers or docks, services of architects and materials furnished by them and under certain conditions to improve- ments to land by drainage, dredging, irrigating, filling in and erecting banks. DISTEICT OF COLUMBIA. Every contractor, material man, journeyman, or labotfer, has a lieu on building and land for work, materials furnished, or machinery or other thing placed in the building as a fixture, but not exceeding the entire contract price. Notice must be filed in the clerk 's oflSce of the supreme court during the construction or within three motiths after completion of buildings or re- pairs, of the intention to claim a lien, and the amount and the lien must be enforced by proceedings in equity within one year after filing notice, or within six months after completion of building. Mechanics have liens on articles of personal property for labor and materials. FLOEIDA. Persons performing or furnishing labor or materials in the construction or repair of any building or other structure, or of additions to or upon any fixtures therein, or in the construction, repair, or operation of any railroad, canal, telegraph, or telephone line, wharf, bridge, mill, distillery,- or other manufacturing work or structure have a lien upon the same and the fran- chise, machinery, and equipments connected therewith, and upon the land qn which they stand. Provision is made that persons furnishing labor or ma- terials under a subcontract may secure liens. Persons performing or fur- nishing labor on any farm, orchard, garden, fete, have also a lien thereon. One furnishing labor or materials for a sidewalk at the procurement *of an adjacent owner, may have lien on the adjacent land. As against every one ■ but the owner and persons in privity with him, notice of lien under oath must be filed within three months in office of circuit court of county where land lies. Suit must be brought within twelve months. Liens on personal property are also given by statute in many cases. GEOBGIA. All mechanics and persons doing any work on a building, or furnishing any materials or machinery, have a lien on the same; but there must be a sub- stantial compliance with the contract, and the claim must be recorded within three months after the work is done or materials or machinery furnished, in the clerk's office of the county where the property is situated, containing a description of the property and of the demand. Subcontractor's lien at- taches only for amount due from contractor at date of notice. Mechanics and laborers also have a lien on personal property for work done in manu- facturing or repairing the same, which is enforced by retaining the prop- erty, but is lost on delivering it up unless lien is recorded in clerk's office in ten days. Action to enforce a lien must be begun within twelve months after the claim is due. ABSTRACTS, MECHANICS' LTENS. ,■ 747 HAWAII. Any person furnishing labor or material for the construction or repair of any building, structure, railroad or other undertaking has a lien upon the same for the price agreed to be paid therefor, and upon the land upon which it is situated. A notice in writing of the lien must be filed in the oflSce of the clerk of the circuit court where the property is situated and a copy of the notice served on the owner of the property. Notice must set forth the amount of claim, the labor or material furnished, a description of the prop- erty and any other material facts. Lien continues for forty-five days after completion of building or work. It has force only from the date of filing. Lien is enforced by suit. IDAHO. Liens are given for latior or materials furnished and used in the construc- tion, alteration, or repair of any building, wharf, bridge, ditch, flume, tun- nel, fence, machinery, road, aqueduct to create hydraulic power, or any other structure, or for labor on a mining claim. Every original contractor within ninety days after the completion of his contract, and every other person, except labor or material men, claiming a lien within sixty days after the completion of the building or the repairs on the same, or after ceasing to furnish labor or materials, must file with the recorder of the county a claim containing a statement under oath of his de- inand, name of owner of property, if known, of his employer or person to whom materials were furnished, statement of terms and conditions of con- tract and description of property. Suit to foreclose lien must be commenced within ninety days after filing. A laborer or material man has only thirty days after finishing his labor or furnishing materials in which to file such notice. A lien for labor on farm may be had by filing claim within thirty days after ceasing to labor. ILLINOIS. All persons performing labor or furnishing materials have a lien on the real estate upon which the work is done. Before an owner makes any pay- ment under an entire contract, he must obtain from the contractor a list of all parties performing labor or furnishing materials under such contract. Ag against third parties, a contractor 's iien will not subsist unless a verified claim of lien is filed with the clerk of the circuit court or suit is brought within four months after completion of work, but against the owner claim may be filed or suit brought at any time within two years. A sub-contractor must give written notice of his claim to the owner within sixty days after completion of his work, and thereupon the owner must re- tain from the contractor an amount sufficient to cover such claim. A sub- contractor must begin suit within four months to enforce his lien. INDIANA. Contractor, sub-contractor, mechanics and all other persons performing labor or furnishing materials or machinery on any structure or building whatsoever, have a lien on the same and on the land to the extent of the in- 748 LIENS OF MECHANICS AND MATERIAL MEN. terest of the owner for whose benefit the labor or materials were furnished To secure the lien a notice of the claim, must be filed in the recorder 'a office of the county where the building is, within sixty days after performing such labor or furnishing such materials or machinery. Suit may be begun to en- force the same within one year. A mechanic or tradesman has a lien on any personal property for work done. Mechanics and laborers may have a lieu for labor and materials furnished to a railroad on all the property and fran- chises of the road. , IOWA. Persons doing work or furnishing materials on any building or improve- ment have a lien on the buildings and land. There must be filed in clerk 's ofiSiCe of the district court of the county, within ninety days after the work is done or materials furnished, by principal contractors, or within thirty days by sub-contractors, a statement under oath of the demand due, the time when labor was performed or materials furnished, and description of prop- erty charged. To prevent payment to principal contractor, notice of filing sub-contrac- tor 's lien must be given to owner within thirty days. KANSAS. Any person who shall perform labor by himself or with teams, under con- tract with the owner, or furnish materials for erecting, altering, or repairing any building, etc., or any machinery or fixtures in the same, or any fence or sidewalk, or plant or grow any trees, vines, hedges, etc., shall have a lien on the land and buildings. Subcontractors and their employees must file state- ment of account with the clerk of the District Court for the county within sixty days after the completion of the buildings, etc., or the furnishing the labor or materials, and serve notice of filing on owner of the land. Con- tractors must file such an account within four mouths, and all actions to en- force liens must be begun within one year after filing lien. KENTUCKY. Any person who performs any labor or furnishes any material, or fixtures, or machinery in the erection, alteration, or repair of any structure, or who makes any improvement in any manner on real estate, by a contract with or written consent of the owner, has a lien on the building,and land for twelve months from the completion of the work, within which time suit must be brought to enforce the same. Within six months after ceasing to labor or furnish materials, he must file in the office of the county clerk of the county where the building is, a statement of amount due, description of property, and name of the ovmer, and also whether the work was done or the materials furnished by contract with the owner or with a contractor or sub-contractcr. Sub-contractorr and laborers may acquire a lien to the extent of balance due the principal contractor by giving notice to employer within thirty-five days after last item furnished, that they claim a lien, and filing a statement as above. Suit to foreclose the Hen must be brought within twelve months. ABSTEACTS, MECHANICS' LIENS. 749 LOUISIANA. Liens in this State are known as privileges. Contractors, subcontractors, artisans and other persons furnishing labor, machinery or materials for any building or structure have a privilege on such building, and the land on which it stands, attaching from the time the labor is performed, or materials furnished. Statement must be filed within forty-five days after acceptance of work by owner, and payments made to original contractor within that time are at owner's risk. Privilege may be enforced by action within one year after record. Contract for more than five hundred dollars must be in writing, signed by the parties, and recorded within twenty days after date, and owner must require bond of contractor for benefit of subcontractors, artisans, etc., to be recorded with contract. MAINE. Any person performing or furnishing labor or materials in erecting, alter- ing, or repairing any house, building, or appurtenance by virtue of a eon- tract with, or by consent of the owner, has a lien on the building and land on which it stands. If the labor or materials are not furnished by contract with the owner, he may prevent the lien for such labor or materials not yet furnished from attaching, by giving written notice that he will not be re- sponsible for the same; and the lien is dissolved, unless, within sixty days after ceasing to labor, or to furnish materials, the claimant shall file, in the office of the town clerk where the building is, a true statement of the ac- count, a description of the property, and the owner's name. Suit must be begun in all cases within ninety days after the last labor was performed or materials furnished. Many other liens are provided for as to which the statutes should be consulted. MARYLAND. Every building, machine, wharf, or bridge erected, or repaired, or im- proved to the extent of one-fourth of its value, is subject to lien for the pay- ment of all debts contracted, or work done, or, except in the city of Balti- more for materials furnished for or about the same. If the contract be made with anyone but the owner, the claimant must, within sixty days after fur- nisliing the work or materials, give notice in writing to the owner. Claimant must within six months file a statement of his demand in the office of the alerk of the Circuit Court for the county where the property is, or in Balti- more in the Superior Court. The lien continues for five years and is en- forced by bill in equity or scire facias. Similar lien's are given for labor or materials furnished for building or equipping vessels, and are in force for two years. MASSACHUSETTS. Any person to whom a debt is due for personal labor performed in the erec- tion,^ alteration repair or removal of a building or structure upon land by vir- tue of agreement with, or by consent of the owner of such building or struc- ture, or of a person having authority from or acting for him, has a lien on such building or structure and the interest of the owner thereof in the land on which it is situated, for not more than eighteen days' work performed 750 LIENS OF MECHANICS AND MATERIAL MEN. within forty days cext prior to filing of statement hereinafter described. A person who enters into a written contract with the owner of land for the erection, etc., of a building or structure thereon, or for furnishing material therefor, may have a lien on building, etc., and owner's interest in the land, to secure payment for all labor and materials furnished under such conr tract, after notice of contract, including names of contractor and owner, description of land, and date when contract is to be completed, is filed or recorded in registry of deeds. Any person furnishing labpr or materials under contractor or subcontractor subsequent to such filing and prior to date of termination of contract has a lien therefor. Any person furnishing laboj or materials or both subsequent to date of original, contract, under written agreement with contractor or subcontractor, may have lien for labor and materials furnished after filing notice of such contract, with date when it is to be completed, and actual notice to owner, but not beyond amount then due or to become due under original contract. Extension of original con- tract or subcontract must be filed or recorded prior to date for completion. Lien is dissolved unless statement is filed within thirty days after principal contract or subcontract is to be performed, signed and sworn to by claimants, and giving amount due, with all just credits, brief description of property, and name of owner as set forth in notice. Lien is enforced by bill in equity, which must be filed within sixty days after filing statement. Any person in interest may prevent lien for personal labor by giving bond to Eegister of Deeds. Contractors' on public works are required to furnish bonds for labor and materials. Claims must be filed within sixty days after completion of work. MICHIGAN. Every person who, under any express or implied contract with the owner or lessee of any interest in real estate, or with a contractor, performs labor or furnishes materials for building, altering, repairing, or ornamenting any building, machinery, wharf, or other structure, has a lien thereon, and on the interest of the owner or lessee of the land on which improvements were made, not, however, to an amount exceeding the original contract price, nor unless notice is given that the lieu will be claimed. Any person furnishing materials or performing labor for contractor must within thirty days after commencing to labor or furnish materials, give no- ■ tice to owner or lessee. If the estate is a homestead the contract must be signed by the owner and his wife. A statement, signed and verified, setting forth the time of commencing to furnish the labor, etc., the amount due or to become due, and a description of the property, must be filed in the registry of deeds within sixty days after furnishing last of labor or materials and within ten days after filing must be served on the owner or lessee, or in his absence on agent in charge, and, in absence of both, by posting on the premises. Payments to contractor within said sixty days are at owner's risk. The lien must be en- forced by suit in chancery within one year after filing statement. ABSTRACTS, MECHANICS' LIENS. 751 MINNESOTA. Any person performing labor or furnishing skill, material "or machinery for construction, alteration, repair, or removal of any building, fixtures, bridge, wharf, fence, structure, railway, or telegraph line, etc., or grading, clearing or grubbing land, digging ditch, drain, etc., or in laying sidewalk, gutter, etc., by virtue of a contract with the owner, agent, contractor or sub- contractor, may have a lien thereon and on the land not exceeding forty acres without a city or village, or one acre within such a city or village. Labor or material furnished with knowledge of owner held to be at his instance unless he gives notice to the contrary within five days. Claimant must file verified statement in writing of amount due, that same is for labor or ma- terials furnished, and date of first and last items of account, description of property to be charged,- and owner's name and notice of intentiou to claim, lien, within ninety days from last item, in office of register of deeds of county where premises are situated — or in case of railroad, telegraph or tele- phone line in office of Secretary of State. Lien must be enforced by suit within one year from date of last item. MISSISSIPPI. Every building, bridge, machinery, or fixtures for manufacturing pur- poses, railroad, or water-craft, and every paling or enclosure is liable for the payment of any debt contracted and owing for labor performed or ma- terials furnished about the erection, alteration, or repair of the same, and the debt is a lien on the building or structure and the land on which it is, not to exceed one acre if in the country. The lien takes effect from the time of filing the contract in the office of the chancery clerk for the county where the land is, or from the commencement of suit to enforce it, and such suit must be begun within twelve months after money claimed is due and payable. Laborers, material men and subcontractors, by giving written no tice to owner, may bind amount due to contractor. Where bond has been given by contractor to owner it enures to benefit of laborers and material- men, who may sue on it if no suit be brought by obligee within six months, provided suit is brought within one year. MISSOURI. Every person performing any work or furnishing any materials, fixtures, engines, boilers, or machinery for any building, erection, or improvement on land, or for repairing the same, has a lien on the building and land belong- ing to the owiier on which the building is, to the extent of one acre, or if in a city, town, or village, on the lot and building. Every original contractor within six months, every journeyman and day-laborer within sixty days, and every other person within four months, must fije with the clerk of the circuit court for the county where the property is a true account of his demand, a description of the property, and the owner's name, and action to enforce the lien must be begun within ninety days after filing such account. Sub> contractor or laborer must give owner ten days ' notice before filing lien. 752 LIENS OF MECHANICS AND MATERIAL MEN. MONTANA. Every person performing labor or furnishing materials, machinery, or fix- tures for any building, structure, bridge, flume, canal, ditch, mining claim, quartz lode, city or town lot, ranch, railroad, telegraph, telephone, electric light line, gas or water-works ,or plant, or other improvements, may have a lien thereon, by filing within ninety days with the clerk of county where property is situated, a statement under oath of amount due, and description of property. Such liens take precedence of any prior lien, encumbrance, or mortgage. Siiit must be commenced within one year. A similar lien is given on leasehold for oil or gas purposes, and on pipe- lines, for labor, materials or machinery performed or furnishing in digging or operating oil or gas wells, under contract with owner, contractor or sub- contractor. NEBRASKA. All persons performing labor or furnishing materials, or machinery for erecting, repairing, equipping, or removing any building or appurtenance have a lien to secure payment for the same, on the building or appurtenance and lot on which it stands. The claimant must make an account in writing, under oath, and within four months from the time of doing the work or fur- nishing the materials must file the same in the office of the clerk of the county where the work was done, and the lien continues for two years after filing claim. Sub-contractor must file claim within sixty days. NEVADA. Every person performing labor upon, or furnishing materials of the value of five dollars in constructing or repairing any building or superstructure, or performing labor on any railroad, tramway, toll-road, canal, water ditch, flume, aqueduct, reservoir, mine, or tunnel, or in the improvement of any building lot in a city or town, has a lien on the same and on the land for his work, labor, or materials. Owner must file affidavit of date of completion of work. Person claiming lien must, not less than ten days after comple- tion of contract, etc., and not more than fifty days after filing of owner's affidavit, or performance of labor on mining cla,im, file in the record office for the county Where the land is a statement under oath of his demand, the owner 's name, terms of contract and description of the property. Suit must be begun within six months after filing the claim. NEW HAMPSHIRE. Any person who, by himself or others, performs labor or furnishes ma- terials to the value of .fifteen dollars or more, for erecting, altering, or re- pairing a house, or other building or appurtenance, by virtue of a contract with the owner, may have a lien on the same, such lien to be secured by at- tachment, and to continue ninety days. A subcontractor may have a similar lien by giving notice in writing to the owner or person having charge of the property of his intention to claim a lien, and furnishing to the owner once in thirty days an account of labor performed or materials furnished. Lum- berers and railroad subcontractors have a like lien, on giving similar notice and account. ABSTRACTS, MECHANICS' LIENS. 753 NEW JEESET. Every building constructed, erected, or repaired, and machinery or fixtures put into any building, are liable for the payment of all debts contracted and owing to any person for labor performed or materials furnished for the erection or repair of such building, machinery, or fixtures. But if the work was done by contract, the building is liable to the contractor alone, provided the contract, or a -copy, is filed in the county clerk's office before any work was done or materials furnished. The claimant must, within four months after performing the labor or furnishing the materials, file in the office of the county clerk a statement containing a description of the building, the owner's name, and the name of the person contracting the debt, the time of beginning the work, and' a bill of particulars, and also issue a summons in a suit to enforce lien, and suit must be diligently prosecuted within one year. If labor or material man is not paid by master workmen, contractor or subcon- tractor he may notify owner, who may pay his claim, unless within five days master workmen, etc., notifies claimant to establish his claim by judgment, in which case claimant must bring suit within sixty days of the notice. There are special provisions for liens in public improvements. NEW MEXICO. Any person furnishing labor or materials for the erection or repair of a. building has a lien thereon and on the land on which it stands. Original contractor must file in office of county clerk a statement of account, under oath, and description of property, within ninety days after completion of con- tract. Other claimants must file similar statement within sixty days after work done or material furnished. Suit must be brought within one year from time of filing claim of lien. NEW YORK. Any person who, with the consent of the owner, or his agent, or any con- tractor or subcontractor, performs services or furnishes materials for the im- provement of real property may have a lien on the premises to secure the payment o^ his claims. A notice of this lien, including name and residence of lienor, name of owner of property, name of employer, statement of labor or material furnished, including agreed price or value, amount unpaid, time of first and last items of labor and materials, and description of property, veri- fied by the claimant or his agent, may be filed in the county clerk's office during the progress of the work, or within four months after ceasing to work or furnish materials. Action must be brought within one year after such filing, and notice of action filed with county clerk. Special provision is also made for liens foi' labor and materials furnished on public improvements, against the State and municipal corporations. NORTH CAROLINA. Every building built, rebuilt, repaired, or improved, together with the lot on which the building is, and every lot, farm, or vessel, is subject to a lien for the payment of all debts contracted for work or materials furnished about the same. Notice of the lien must be filed in the office of the clerk of the Superior Court of the county within twelve months after the labor ia 48 754 LIENS OF MECHANICS AND MATEBIAL MEN. completed or materials furnished, specifying the labor or materials furnislied and the time. Suit must be brought within six months after filing lien. Sub- contractors, laborers, and material men can take a lien by notifying owner of property before he has settled with the contractor, and filing notice as above. Agricultural laborers and persons engaged in loading vessels also have liens. Mechanics and artisans have a lien on personal property made or repaired by thpm. If not paid within 30 days if the value of the article does not exceed fifty dollars, or ninety days if over fifty, they may sell at auction, after two weeks' notice. NORTH DAKOTA. Every person performing labor or furnishing materials, machinery, or fix- tures for any building, erection, or other improvement upon land, by yirtue, of any contract with the owner, his agent, trustee, contractor, or subcon- tractor, or with his consent, may have a lien on such building, etc., and the land on which it is situated. When materials, etc., are furnished to con- tractor or subcontractor notice must be given to owner. Notice of intention to claim lien f or'materials must be filed with clerk of district court of county,, and lien will take precedence only over conveyances filed thereafter. Notice of lien, with written consent of owner if lien is for materials, must be filed with clerk of district court within ninety , days after all labor is performed or materials furnished. If owner so demands, suit to enforce lien must be brought within thirty days after demand, otherwise within six years after date of last item. OHIO. Any person performing labor or furnishing machinery, materials or fuef for constructing or repairing any vessel, or any building, bridge or other structure, or any oil derrick, oil tank, oil or gas pipe line, or digging, drilling or operating any gas, oil or other well, or furnishing tile for drainage, _ by virtue of a contract express or implied with the owner or agent, or as sub- contractor, laborer or material man, has a lien on structure and interest of owner in land. One furnishing labor . or materials on a road, drain,- etc., may have similar lien on interest of owner in the land and that abutting. Statute provides for notice to owner of claims for liens by material men or laborers within thirty days after beginning to furnish material or perform labor; and requires contractor to give owner statement containing names of all subcontractors, workmen and material men, and amounts due them, before payments are made to contractor; and authorizes him to retain and pay such, amounts, holding him responsible for sixty days after completion of work, for all amounts due, but not beyond amount of original contract. -Every per- son claiming lien must within sixty days after furnishing last labor or ma-. terials file in office of county recorder affidavit showing net amount due, de- scription of property, name of persons to whom labor or materials were furnished and name of owner, if known, and within thirty days thereafter serve copy on owner, or, if not found in county, post same on premises.' Owner may require him to bring suit; if not brought within sixty days lien is lost. "Liens have precedence over all titles given or recorded after com- mencement of construction, etc. ABSTRACTS, MECHANICS' LIENS. 755 OKLAHOMA. Any person performing, labor or f urnisbing material in building, altering, ur repairing building or structure, including fences, sidewalks, etc., or in putting in machinery, planting trees, etc., under contract with the owner of land, may have a'lien on structure and land. Statement, under oath must ' be filed with clerk of district court within four months, setting forth amount claimfed, the items, names of owner, and claitnant, and description of prop- erty. Statement by subcontractor must be filed within sixty days and notice served on owner. Suit must be brought within one year after filing lien. There is similar lien on gas and oil pipe lines and oil and gas leaseholds. OREGON. Any person who, at the instance of the owner or his agent, performs' any labor, or furnishes or transports any materials for the construction or repair of any building, wharf, bridge, ditch, flume, tunnel, fence, machinery or any structure, has a lien on the same and the lot on which it stands. Persons furnishing materials or supplies must, within five days after date of first delivery, deliver or mail to owner statement that he has commenced to de- liver materials, etc., with name of person ordering same, and claim a lien for all materials which he may furnish, and on demand furnish owner a list of all materials, etc., furnished and their prices. An original contractor must file in the oflSce of the county clerk, within sixty days after the completion of the building or repairs, a notice of his intention to claim a lien, specifying the amount due and the property. A laborer er subcontractor must file notice within thirty days. The lien will not be binding for more than six months after such filing, unless suit is brought. Notice must be given to owner seven days before commencing suit to foreclose lien. All persons furnishing fuel or materials to a contractor with railroad corporation may secure a lien on the property of the latter, but not to amount exceeding that due by the corpora- tion to the contractor. PENNSYLVANIA. Under Act of 1901 buildings and land are subject to liens for labor and materials, exceptions, however, existing in certain eases, i. e., where furnished for public purposes,' or where the land is held by trustee of' lunatic or minor children etc. No claim of lien for repairs less than one hundred dollars is valid, nor in case of subcontractor unless also written notice of inten-- tioii to file claims be given to owner before completion of work or furnish- ing last of materials. Where tenancies or leasehold estates are involved, or where it is a case of alterations or repairs, the claim mtist be filed in the court of common pleas within three months after completion of contract ; in other cases within six months. Where a subcontractor has three months within which to file his claim he must give the owner written notice and a sworn statement of the claim at least thirty days before such claim is filed, and where he has six months, the notice and statement must precede the fil- ing of the claim at least forty-five days. Scire facias must be issued "witJiin two years, and judgment rendered thereon within five years. 756 LIENS OF MECHANICS AND MATERIAL MEN. THE PHILIPPINES. There is no provision for mechanics ' liens on real estate. POETO RICO. The law does not provide for mechanics' liens on real estate. RHODE ISLAND. Every building or other improvement erected or repaired, by contract with or consent of the owner,, is subject to a lien for all work done or materials furnished in the construction or repair of the same. Persons employed by contractors or subcontractors have lien for work done or labor furnished within forty days next preceding time of notice to owner, and within ten days after giving such notice must record copy with town elerk or recorder of deeds. Persons furnishing materials must give notice to owner, and record same in town clerk's office within sixty days after materials are placed on land. To enforce lien, the claim, including an account and a description of prop- erty, must be filed in the office of the town clerk of town where land is situ- ated by subcontractors and workmen within ten days after such notice, others within four months after default in any payment, if work is done by written contract, or within six months after commencement of work under verbal contract. A petition in equity must be filed in the clerk's office of tho Supreme Court within twenty days after the filing of the claim. SOUTH CAROLINA. Any person to whom a debt is due for labor performed or materials fur- nished and actually used in the erection, alteration, or repair of any building or structure on real estate, by virtue of a contract with or consent of the owner or his agent, has a lien on the buildings and land for. his pay. A sub- contractor may also have such lieu by notifying the owner and the original contractor before furnishing labor or materials of his intention to claim lien, but the whole amount of such liens must not exceed amount of lien of original contractor. If the owner is not the contracting party, he may prevent • any lien from attaching by giving written notice that he will .not be respon- sible for the debts of the contractor. The claimant, within ninety days after ceasing to labor or furnish materials, must file in the office of the register of mesne conveyances of the county a statement of his account, with a descrip- tion of the property and the owner's name. Suit must be begun within six months after ceasing to labor, or furnish materials. SOUTH DAKOTA. Every person doing labor upon, or furnishing materials, machinery, or fix- tures for any building or other improvement on land, by virtue of any con- tract with the owner, or his agent, trustee, contractor, or subcontractor, may have a, lien on the land and the buildings, etc. Owner may retain from contractor and pay amounts due other lienors. Lien attaches at date of first item of labor or materials, or as against bona fide purchaser, etc., at actual beginning of improvement, but contractor may secure lien by filing statement ABSTEACTS, MECHANICS' LIENS. 757 of contract with clerk of circuit court. Lden ceases at end of ninety daya after last item furnished unless verified claim be filed with clerk of circuit court giving amount due and for what purpose, names of claimant and per- son for whom labor, etc., was furnished, dates of first and last items, descrip- tion of property and name of owner. Suit must be brought within six years after date of last item, or thirty days after demand by owner. TENNESSEE. There is a lien on any lot of land upon which a house has been built or repaired, or fixtures or machinery furnished or erected, or improvement made by special contract with the owner or his agent in favor of all persons doing any work or furnishing' any materials on or about the same. If a mortgagee has written notice of a contract to furnish such labor and materials before the work is begun and fails to object within ten days, the lien will take prece- dence over the mortgage. The lien includes the buildings on the land, and continues for one year after completion of the work. Subcontractors and workmen must, at the time of beginning to work, give notice to the owner of their intention to claim a lien, or they may, within thirty days after build- ing is completed, or their contracts expire, notify in writing the owner that lien is claimed, and such lien shall thereupon have precedence over all other liens for ninety days, providing statement be filed with county register. TEXAS. Any person laboring or furnishing materials, machinery, fixtures or tools for erection of any house or improvement, or repair of any building or im- provement, or construction or repair of levee or embankment, has a lien there- on and on land. Every original contractor within four months, and all others within thirty days after indebtedness accrued must file with county clerk copy of contract, if in writing, or if unwritten, itemized account under oath, together with description of building, etc., and land. Persons furnish- ing material to contractor or subcontractor must give owner written notice of items furnished and amounts due, or within ninety days file itemized account with county clerk. Subcontractors and laborers must give owner ten days' notice before filing lien. Owner must retain ten per cent, of con- tract price or value of building, etc., for thirty days after completion of work to meet claims of workmen, but is in no case liable beyond contract price. UTAH. Any person who furnishes labor or materials in the construction or repair of any building, structure, or improvement on land, or in working a mine, has a lien thereon, provided he files with the county recorder within sixty days after the completion of his contract, if an original contractor, or forty days after ceasing to labor or furnish materials, etc., if a subcontractor, a claim, under oath, containing a statement of his demand after deducting all credits, name of owner if known, and employer, the terms of the contract, and de- scription of property. Suit for foreclosure must be commenced within one year after completion of contract, or suspension of the work for thirty days. 758 LIENS OF MECHANICS AND MATERIAL, MEN. On contract for $500 or more owner must obtain bond from contractor for benefit of persons entitled to liens. VERMONT. When any contract is made, in writing or otherwise, for the erection, repair, or alteration of any building, or for' furnishing any materials abotit the same, the person proceeding under the contract has a lien on the house and land, which continues for three months after payment of the claim is due, provided the claimant filed in the clerk's office of the town where the building is, a memorandum signed by him showing his claim, and commences an action to enforce the same within said three months. The property on which lien is claimed is to be attached within five months after judgment, and copy of record filed in town clerk's oflSce, whereupon lien becomes one in nature of mortgage, and is foreclosed as such. Subcontractor may have similar lien not exceeding amount due original contractor by filing lien and giving notice to owner. Mechanics have a lien on articles repaired. VIRGINIA. All persons performing labor or furnishing materials for the construction or improvement of buildings or other structures, or repair thereon, if ordered by owner or his agent, have a lien thereon, and on so much land as is neces- sary to the convenient use thereof. A general or a subcontractor or material man must, within thirty days after completion of building or furnishing ma- terials, file in the county clerk's office (or, if the property be in the City of Richmond, in the clerk's office of the chancery court), a sworn statement of account, with a description of the property, and claim a lien thereon. Sub- contractors or material- men must, also, within thirty days, notify in writing the owner of the property or his agent, and the owner will be liable to the subcontractor or materialman for so much of his claim as does not exceed the amount due by the owner to the general contractor at the time notice is given. Subcontractor may, before performing labor or furnishing materials to general contractor, give owner written notice of intention to claim lien, stating probable amount, and within thirty days after structure is completed give to owner and contractor a verified statement of account, and owner shall thereupon be personally liable to extent of amount then due contractor. Suit to enforce lien must be brought within six months. WASHINGTON. Mechanics and material men may have liens on buildings and lands on which they stand, by filing notice thereof, within ninety days of the comple- tion of the work or furnishing materials, with the county auditor, stating amount due above all set-offs. Suits must be brought within eight months after such filing. Lumbermen may have a similar lien on logs and timber by filing notice of lien in county auditor's office within thirty days after debt accrued, and bringing suit thereon within eight months thereafter. Persons performing or furnishing labor in orchards or orchard business have lien on same; claim must be filed within forty days after close of work and suit within eight months thereafter. Farm laborers have lien on crops if filed ABSTRACTS, MECHANICS' LIENS. 759 within forty days. Persons performing labor for any person or corporation, in the operation of any railway, canal, or transportation company, or any water, mining, or manufacturing company, saw mill, etc., shall have a lien upon the franchise, earnings, and property of such .person or corporation for labor performed during the six months preceding the filing of his claim with the county auditor, which must be done within ninety days after completion of such labor. WEST VIRGINIA. Every person erecting, constructing, altering, removing or repairing any building or other structure, or improvement appurtenant thereto, under con- tract with the owner, or performing labor or furnishing materials, machinery or supplies for the same under contract with the owner, contractor or sub- contractor, has lien thereon and on the interest of owner in the land. Lien attaches when labor or materials begin to be furnished.' Contractor and workmen and material men under direct contract with owner must file in office of clerk of circuit court for the county where land lies, within ninety days after completion of contract or furnishing last labor or materials, notice of lien and statement of claim under oath. Subcontractors, and work- men and material men under contract with contractor or subcontractor, must within sixty days after completion of subcontract, etc., serve similar notice on owner. If owner be non-resident or not found, notice must be. published two weeks in newspaper published in the county, and posted on the premises. Iteniized statement of labor or materials must be given to owner within ten days after written demand. Workman or materialman employed by con- tractor may before beginning work or furnishing materials notify owner of intention to claim lien if not paid; in which case he need not file the sixty days' notice of lien unless required by owner within sixty days. Owner may limit liability under contract to amount, of contract, by recording, same in clerk's office, and requiring contractor to give bond for payment of claims for labor and materials. Liens for labor and materials have precedence over lien of contractor. Suit to enforce lien must be commenced within six months after filing notice, such suit enuring to benefit of all holders of liens. Workmen performing labor for any incorporated company have lien on all real and personal estate of company, provided sworn notice of lien be filed in clerk's office within ninety days after ceasing to labor. WISCONSIN. Every person who as principal contractor, architect, civil engineer or sur- veyor performs or furnishes work, material, plans or specifications for the erection, construction, repair or removal of any building, structure, bridge, wharf, etc., or machinery annexed to the freehold, has a lien thereon and on interest of the owner in the land, not exceeding forty acres, or in a city or incorporated village the lot used for such building, etc. Any person other than a principal contractor furnishing labor or materials may have similar lien, but must within thirty days after beginning work or furnishing material give notice to owner that he has been employed to furnish labor or material on land described, and within sixty days after last work performed or ma- terials furnished file in office of clerk of circuit court, witli a copy of the 760 BANKRUPTCY. notice, claim for lien, setting forth that he has been employed by con- tractor to perform or furnish labor or materials, with statement of labor or materials furnished, and amount owing therefor. Laborers and mechanics employed by contractor or subcontractor are not required to give the thirty days' notice. In other cases the lien must be filed within six months after date of last charge. Action must be brought within one year from such date, unless within thirty days before expiration of year time is extended for another year by annexing to claim on file affidavit showing claimant's interest in the property by virtue of such lien. WTOMINa. Any person performing labor or furnishing materials, fixtures, or ma- chinery for any building, erection, or improvement on land or for repairing the same, may have a lien on the land to the extent of one acre, or, if in a city, town, or village, on the lot on which the building is situated. Every original contractor within four months, and every subcontractor, journeyman, or laborer within' ninety days, after indebtedness accrues, must file with the register of deeds of the county an account, under oath, of the amount due after allowing for credits, a description of the property, and name of owner and contractor, if known; but original contractors cannot file lien until sixty days after completion of contract. lersons other than original contractors must, ten days before filing lien, give written notice of the claim and amount thereof. Proceedings to foreclose lien must be begun within six months. CHAPTER XXXVIII. BANKRUPTCY. The Constitution of the United States provides that "Con- gress shall have power. .... .to establish uniform laws on the , subject of bankruptcies throughout the United States. ' ' The sev- eral States may pass laws on the subject when there is no national law, but as soon as a national law is passed, and while it con- tinues in force, it wholly supersedes and suspends every State law on the subject. National Bankruptcy Acts, with intervals when the State insolvency laws were in force, were passed in 1809, 184], 1867 and 1898. The law of 1898 as' amended by sub- sequent statutes is the one now in force. ' Exclusive jurisdiction in all matters of iDankruptcy is vested in the District Courts of the United States, subject to appeals to thp Circuit Court of Appeals and to the Supreme Court. They ■ BANKEUPTCY. 7gl may adjudge persons bankrupt who have had their principal place of business, or resided or had their domicile, within their respective territorial jurisdictions for the preceding six months, or the greater part thereof, or who do not have their principal place of business, resid,ence or domicile within the United States, but have property within their jurisdictions, or who have been adjudged bankrupt by courts of competent jurisdiction without the United States and have property within their jurisdiction. Proceedings in bankruptcy may be voluntary or involuntary ; the diiference in the two cases relating only to the steps taken to bring about the adjudication. When a person has once been ad- judicated a bankrupt, the subsequent proceedings as to proof of claims, election of trustee, and distribution of the bankrupt's es- tate are the same in both cases. "Acts of bankruptcy by a person consist of his having, (1) conveyed, transferred, concealed or removed, or permitted to be concealed or removed,' any part of his property with intent to hinder, delay or defraud his creditors or any of them; or (2) transferred, while insolvent, any portion of his property to one or more of his creditors with intent to prefer such creditors over his other creditors ; or (3) suffered or permitted, while insolvent, any creditor to obtain a preference through legal proceedings, and not having, at least five days before a sale or final disposition of any property affected by such preference, vacated or dis- charged such preference; or (4) made a general assignment for the benefit of his creditors, or being insolvent, applied for a re- ceiver or trustee of his property, or because of insolvency a re- ceiver or trustee has been put in charge of his property under the laws of a State, of a Territory or of the United States ; or (5) admitted in writing his inability to pay his debts and his willing- ness to be adjudged a bankrupt on that ground." Any person or corporation except a municipal, railroad, insur- ance or banking corporation, may file a voluntary petition and be adjudged a bankrupt. Any natural person, except a wage earner, or person engaged chiefly in farming or the tillage of the soil, any unincorporated company and any moneyed, business, or commercial corporation except a municipal, railroad, insurance or banking corporation, owing debts to the amount of one thousand dollars or over may be adjudged a bankrupt in involuntary proceedings. 762 BANKRUPTCY. A partnership may be adjudged a bankrupt either in volun- tary or involuntary proceedings. In such case a court having jurisdiction over one of the partners m&y have jurisdiction over all and the administration both of the partnership and the in- dividual estates. Separate accounts are kept of partnership and individual property, and the net proceeds of partnership prop- erty applied to the payment of partnership debts, and that of individual property to individual debts; the surplus, if any, of the partnership estate after payment of partnership debts being transferred to the estates^ of the individual partners, and that of the individual partners to the partnership estate. If one or more of the partners, but not all, are adjudged bankrupt, and there be no proceedings against the firm, the partnership property is not administered in bankruptcy, unless by consent of the other partners, but such other partners are required to settle the partnership business as sOon as practicable and account for the interest of the bankrupt partners." An involuntary petition may be filed at any time within four months after the alleged act of bankruptcy, by three or more creditors who have provable claims amounting in the aggregate, in excess of the value of any securities, to five hundred dollars. If the whole number of creditors be less than twelve, one whose claim equals that amount may file such a petition. In computing the number of such creditors, creditors employed by the debtor at the date of filing the petition, or related to him by consan- guinity or' affinity within the third degree as determined by com- mon law, and who have not joined in the petition are not in- cluded. Other creditors may afterwards join in or oppose the petition. A petition, whether voluntary or involuntary, once filed, cannot be withdrawn without notice to all creditors. On the filing of the petition notice is given to the debtor, and he may contest the allegations made in it, and, if he so desires, have them passed upon by a jury. On sufficient ca.use shown, and the filing of a bond to cover any damages the debtor may suffer, the court may in its discretion appoint a receiver to take charge of the debtor's property and business until the question of adjudication is decided, or until the appointment of a trustee. Classified schedules of the debtor 's assets and liabilities are filed with the petition in voluntary proceedings, and immediately BANKBUPTCY. 763 after tlie adjudication he is required to file similar schedules in involuntary proceedings. By the adjudication all levies, judgments and attachments ob- tained within four months prior to the date of filing the petition are vacated exciept as to bona fide purchasers for value without notice. Upon the adjudication being made, the case is referred by the court to one of the official Referees in Bankruptcy, who has charge of the subsequent proceedings in the settlement of the bankrupt 's estate, subject to the supervision of the court. At the first meeting of the creditors, which is presided over by the Referee, the creditors make proof of their claims, and choose a trustee. They may attend personally, or be represented by an attorney-at-law, or by an attorney in fact, duly authorized in writing. Proof of claims is made in writing. Forms for this purpose will be found at the end of this chapter. Whenever a claim is founded upon an instrument in writing — as for example, a promissory note — it must be filed with the proof of claim. After the claim is allowed or disallowed it may be withdrawn, with the permission of the Court, by leaving a copy on file. The bankrupt is required to be present at this meeting, and may be examined in relation to his business affairs at the request of any creditor. Claims of secured creditors or of those having a priority are allowed only to the extent of the excess over such security or priority. Claims of creditors who have received preferences, or to whom conveyances or transfers of property have been made by the bankrupt within four months before the filing of the peti- tion with intent to hinder, delay or defraud his creditors, are not allowed unless the creditor surrenders such preference, convey- ance, etc. A person shall be deemed to have given a preference if, being insolvent, he has within four months before filing the petition, or after such filing and before the adjudication, procured or suf- fered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable one of his creditors to obtain a greater percentage of his debt than any other creditors of the same class. If the person so bene- fited had reasonable cause to believe that such transaction would 764 BANKRUPTCY. effect a preference, it may be avoided by the trustee and the prop- erty or its value recovered. After the proof and allowance of claims one or three trustees are chosen by a majority in number and value of the creditors present in person or by attorney. If the creditors fail to elect an appointment is made by the Referee. The trustee is the ofScial administrator of the bankrupt's es- tate. Upon his appointment and qualification all the property and rights of action of the bankrupt — except such as are exempt under the laws of the State, — including documents -relating to property, interests in patents, copyrights and trade-marks, powers which the bankrupt might have exercised for his own benefit, and property transferred by the bankrupt in fraud of his creditors — vest in the trustee by operation of law as of the date of the adjudication. It is the duty of the trustee to collect and reduce to money as speedily as possible all the bankrupt's property and estate vested in him, or of which he has a right of recovery. He is not, how. ever, obliged to accept any property which by reason of valid liens or mortgages, or for any other reason, is of no value to the estate. So of a leasehold estate. Unless the lease by its terms be- comes null and void on the bankruptcy of the lessee, the trustee may, at his election, refuse to accept it, or he may sell and assign it, or he may enter upon and occupy the leased premises. But if he elects to accept the lease, he takes jt subject to all its burderis, and becomes liable to the landlord for rent subsequently accruing, and for the performance of the other covenants of the lease. He may, however, at any time relieve himself of further liability by assigning, the lease, even to one known to be insolvent. Any property or rights of action which the trustee declines to accept revert to the bankrupt. While all the bankrupt's rights of action relating to property or damage to property vest in the trustee, rights of action for personal injuries — as for example for assault and battery or libel or slander — do not pass to the trustee, but remain in the bank- rupt, unless such rights of action be reduced to a judgment be- fore the bankruptcy. For the purpose of settling the estate very broad powers are given to the' trustee. In case of doubt he can always apply to the Referee or to the Court for instructions. "With relation to the BANKRUPTCY. 765 property in his hands he is bound by the ordinary obligations of trustees. He cannot buy it in for himself, or acquire a title to it by buying up the claims of creditors. If he makes any profit he m_ust account for it to the estate. The trustee, must report the condition of the estate from time to time to the Court, must pay such dividends to creditors as may be declared by the Referee, and at the final meeting of the credi- tors make a detailed report of his administration of the estate. Proof of claims may be made at subsequent meetings within one year after the adjudication; or if liquidated by litigation, and judgment is rendered within thirty days before or after the expiration of such term, within sixty days after the rendition of such judgment. Such subsequent proof cannot, however, operate to disturb the effect of any dividend already declared. Creditors are entitled to ten days notice of all examinations of the bankrupt, all hearings for confirmation of composition, all meetings of creditors, all proposed sales of property, the declara- tion and time of payment of dividends, filing of trustee's final accounts and time and place when and where they will be passed upon, the proposed compromise of any controversy, and the pro- posed dismissal of proceedings. On application for the bank- rupt's discharge thpre must be thirty days' notice. Before the payment of any dividend to creditors, all taxes due to the United States, the State, county or municipality must be paid ; then debts entitled to priority in the following order : (1) the actual and necessary cost of preserving the estate subsequent to filing the petition; (2) filing fees paid by creditors in invol- untary eases, and the expenses of recovery, by creditors, of prop- erty for the benefit of the estate; (3) the cost of administration, including one attorney fee for professional services rendered, to petitioning creditors in involuntary cases, to the bankrupt in in- voluntary cases while performing duties prescribed by the Act, and to the bankrupt in voluntary cases, as the court may allow. (4) "Wages due to workmen, clerks, traveling or city salesmen, or servants, which have been earned within three months before the commencement of proceedings, not to exceed three hundred dollars each; and (5) debts owing to any person who by the laws of the States or the United States is entitled to priority. A bankrupt may offer, either before or after adjudication, terms of composition to_his creditors, after, but not before, he 766 BANKRUPTCY. has been examined in open court or at a meeting of his creditors, and has filed in court the, schedule of his property and the list of creditors required to be filed by bankrupts. The application for confirmation of composition . must, before filing, be accepted in writing by a majority in number and amount of the creditors ; and the consideration to be paid to the creditors and the amount necessary for payment of debts entitled to prior- ity and the costs of proceedings must be deposited, subject to the order of the judge. After notice to creditors and hearing on feiny objections, the composition will be confirmed if the judge is satis- fied that: " (1) It is for the best interests of the creditors; (2). the bankrupt has not been guilty of any of the acts or failed to perform any of the duties which would be a bar to his dischaTge ;• and (3) the offer and its acceptance are in good faith and have not been made or procured except as provided in the Act, or by any means, promises or acts therein forbidden. ' ' Upon the con- firmation of a composition the consideration is distributed as the judge directs and the case demands. The confirmation of a com- position discharges the bankrupt from his debts, other than those agreed to be paid by the terms of the composition and those not affected by a discharge, and the bankrupt's property and estate revest in him. The bankrupt may apply for his discharge after the expiration of one month and within the next twelve months subsequent to the adjudication, or, if unavoidably prevented, he may do so within, but not after, the next six months. Objection to the dis- charge may be made by any party in interest on any one or more of the following grounds: "(1) That the bankrupt has com- mitted an offense punishable under the Act by imprisonment,"' viz: having knowingly concealed while bankrupt, or after his discharge, from his trustee any of the property belonging to his estate in bankruptcy, or having made a false oath or account in,' or in relation to, any proceeding in bankruptcy; "or, (2) with intent to conceal his financial condition, destroyed, concealed or failed to keep books of account or records from which such con- ■ dition might be ascertained; or (3) obtained money or property on credit upon a materially false statement in writing made by him to any person or his representative for the purpose of obtain" ing credit from such person ; or (4) at any time subsequent to the first day of the four months immediately preceding the filing" BANKRUPTCY. 767 of the petition transferred, removed, destroyed or concealed, or permitted to be removed, destroyed or concealed, any of his prop- erty, with intent to hinder, delay or defraud his creditors ; or (5) in voluntary proceedings, been granted a discharge in bank- ruptcy within six years; or (6) in the course of proceedings in bankruptcy refused to obey the lawful order of, or to answer any material question approved by, a Court. ' ' A discharge may be revoked, on application of any party in interest, within one year if on trial it appears that it was ob- tained through fraud of the bankrupt, of which the petitioner acquired knowledge after the discharge, and that the discharge was not warranted by the actual facts. A composition may be set aside on like grounds within six months after confirmation. "A discharge in bankruptcy releases a bankrupt from all of his provable debts, except such as (1) are due as a tax levied by the United States, the State, county, district or municipality in which he resides; (2) are liabilities for obtaining property by false pretenses or false representations, or for wilful and ma- licious injuries to the person or property of another, or for ali- mony due or to become due, or for maintenance or support of wife or child, or for seduction of an unmarried female, or for criminal conversation; or (3) have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual, knowledge of the proceedings in bankruptcy ; or (4) were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity." VOLUNTARY ASSIGNMENTS. Voluntary assignments for the benefit of creditors are of com- ; mon occurrence, and are regulated by statute in many of the ' States. The terms of these assignments vary greatly. In some States they may provide that certain creditors may be preferred and their claims paid before others ; in other States, as in Massa- chusetts, all creditors must be placed upon the same footing, and the insolvent's estate must be settled on lines substantially like those of the Bankruptcy Act. While the making of such an assignment is of itself jinder the statute an act of bankruptcy, and the assignment is liable to be set aside by bankruptcy proceedings at any time within four 768 BANKRUPTCY. months, it is frequently done to preserve the insolvent's estate, by preventing attachments which would shut down his busi- ness, until a meeting of the creditors can be held, and they can decide in what way the debtor's affairs shall be settled. It often happens, also, that by reason of the greater freedom of acr tion permissible under an assignment, an insolvent estate can be settled in this way with less delay and expense than it would in bankruptcy, and so is preferred by the creditors. A form of assignment will be found at the end of this chapter, which can be modified to suit the circumstances of any particular case. (337.) General Letter of Attorney-in-Fact, When Creditor Is Not Repre- sented by Attorney-at-Law. In the District Court of the United States for the . District of In the matter of Bankrupt. >.In Bankruptcy. To A. B.: .D. I, of in the county of and State of , do hereby authorize you, or any one of you, to attend the meeting or meetings of creditors of the bankrupt aforesaid at a court of bankruptcy, wherever advertised or directed to be holden, on the day and at the hour appointed and notified by said court in said matter, or at such other place and time as may be appointed by the court holding such meeting or -meetings, or at which such meeting or meetings or any adjournment or adjournments thereof may be held, and then and there from time to time, and as often as there may be occasion, for me and in my name to vote for or against any proposal or resolution that may be then submitted under the acts of Congress relating to bankruptcy; and in thei choice of trustee or trustees of the estate of the said bankrupt, and for me to assent to such appointment of trustee; and with like powers to attend and vote at any other meeting or meetings of creditors, or sitting or sittings of the court, which may be held therein for any of the purposes aforesaid; also to accept any composition proposed by said bankrupt in satisfaction of his debts, and to receive payment of divi- dends and of money due me under any composition, and for any other pur- pose in my interest whatsoever, with full power of substitution. In Witness Whereof, I have hereunto signed my name and affixed my seal the day of , A. D. 19__ BANKRUPTCY FORMS. 769 Signed, sealed and delivered in the presence of (SeaZ.) Acknowledged before me this day of , A. D. 19 — .. [Official character.] (338.) Special Letter of Attorney in Fact. -s In the matter of Bankrupt. >-In Bankruptcy. To A. B.: C. D. I hereby authorize you, or any one of you, to attend the meeting of credi- tors in this matter, advertised or directed to be holden at , on the day of , before , or any adjournment thereof, and then and there for me and in my name to vote for or against any proposal or resolution that may be lawfully made or passed at such meeting or ad- journed meeting, and in the choice of trustee or trustees of the estate of the said bankrupt. In Witness Whereof, I have hereunto signed my name and aflSxed my seal the day of (Seal.) Signed, sealed and delvvered in presence of Acknowledged before me this day of , A. D. 19 — [Official character.'] (339.) Proof of Unsecured Debt. In the District Court of the United States for the District of In the matter of Bankrupt. >-In Bankruptcy. At , in the district of , on the day of , A. D. 19 , came of , in the county of in said district of , and made oath, and says that the person by [or against] -vriiora. a petition for adjudication of bankruptcy has been filed, was at and before the filing of said petition, and still is, justly and truly indebted to said deponent in the sum of dollars; 49 770 BANKEUPTCT. that the consideration of said debt is as follows: ; that no part of said debt has been paid [except ] ; that there are no set-offs or counterclaims to the same [except ] ; and that deponent has not, nor has any person by his order, or to his knowledge or belief, for his use, had or received any manner of security for said debt whatever. Creditor. Subscribed and sworn to before me this day of , A. D. 19_. [Official character.] FoT proof of a secured debt the form is the same, except the last clause, for which substitute: "and that the only securities held by this deponent for said debt are the following: ." (340.) Proof of Debt Due Corporation. In the District Court of the United States for the District of In the matter of Bankrupt. >-Iu Bankruptcy. — ' ^ At , in the district of , on the day of , A. D. 19 , came of in the county of and State of , and made oath and says that he is (president or other officer) of the , a corporation incorporated by and under the laws of the State of , and carrying on business at : in the county of and State of , and that he is duly authorized to make this proof, and says that the said — — i the person by [or against} whom a petition for adjudication of bankruptcy has been flle^, was at and before the filing of said petition, and still is, justly and truly in- debted to said corporation in the sum of ■' dollars; that the consid- eration of said debt is as follows: ; that no part of said debt ha» been paid [except ] ; that there are no set-offs or counterclaims to the same [except ] ; and that said corporation has not, nor has any person by its order, or to the knowledge or belief of said deponent, for its use, had, or received any manner of security for said debt whatever. [President, etc.] of said Corporation. Subscribed and sworn to before me this day of , A. D. 19 [Official character.'] BANKRUPTCY FOEMS. 771 (341.) Proof of Debt by Partnership. In the District Court of the United States for the . District of In the matter of Bankrupt. At in the district of _, on the , >.In Bankruptcy. day of of A. D. 19 , came in said district of firm of , consisting of himself, and _, in the county of ., and made oath and says that he is one of the of in the ■ county of and State of that the said the person by [or against] whom a petition for adjudication of bankruptcy has been filed, was at and before the filing 'of said petition, and still is, justly and truly indebted to this deponent 's said firm in the sum of dollars; that the consideration of said debt is as follows: ; that no part of said debt has been paid [except . ] ; that there are no set-offs or counterclaims to the same [except ] ; and this deponent has not, nor has his said firm, nor has any person by their order, or to this deponent's knowledge or belief, for their use, had or received any manner of security for said debt whatever. Subscribed and sworn to before me this 19 day of Creditor. , A. D. [Official character.] (342.) Proof of Debt by Agent or Attorney. In the District Court of the United States for the District of In the matter of Bankrupt. At A. D. 19_ _, in the district of on the >-In Bankruptcy. day of of _, in the county of and State of , attorney [or authorized agent] of [the credHtor] of in the county of and State of . , and made oath and says that ., , the person by [or against] whom a petition for adjudication of bankruptcy has been filed, was at and before the filing of said petition, and still is, justly and truly indebted to the said in 772 BANKBITPTCY. the sum of dollars; that the consideration of said debt is as fol- lows: ; that no part of said debt has been paid [except ]; and that this deponent has not, nor has any person by his order, or to this deponent's knowledge or belief, for his use had or received any manner cf security for said debt whatever. And this deponent further says that this deposition, cannot be made by the claimant in person because , and that he is duly authorized by his principal to make this affidavit, and that it is within his knowledge that the aforesaid debt was incurred as and for the consideration above stated, and that such debt, to the best of his knowledge and belief, still remains unpaid and unsatisfied. Subscribed and sworn to before me this day of , A. D. 19 [Official character.] (343.) Assignment for Benefit of Creditors. This Indenture, Made and entered into this day of , 19 , by and between , of H— , and , of , co- partners doing business in under the name and style of , hereinafter called the debtors, parties of the first part, and of hereinafter called the assignee, party of the second part, and the several persons," firms and corporations whose names are hereunto subscribed, hereinafter called the creditors, parties of the third part, witnesseth that : Whereas, The debtors are indebted to said creditors in the sums set after their respective names in the schedules hereunder written, and Whereas, The debtors have agreed to make the assignment and enter into the covenants hereinafter contained, and the said creditors have agreea with said debtors, and mutually each with the others, to accept these presents in satisfaction of their respective debts, and to execute the release hereinafter contained; Now this indenture witnesseth, that in pursuance of said agreements, and in consideration of the premises, the said debtors hereby grant, assign and convey to the said assignee, his heirs, executors and administrators, all and singular the property, real and personal, and all effects and credits of the debtors, both partnership and individual, wherever situated, to which they or either of them are beneficially entitled, whether in possession, reversion or expectancy, except such portions thereof as are exempt from execution under the laws of said State of ; To Have and to Hold the same to the said assignee, his heirs, executors, administrators and assigns, to hia and their use and behoof forever, subject to any valid outstanding mortgages or other liens, but in trust nevertheless and for the following uses and purposes, namely : 1. To take possession of, and to sell and dispose of, all of said property* and effects, at such times, in such manner and on such terms as to said as- signee may seem most for the interest of said creditors, and for the best BANKRUPTCY. 773 price he is able to obtain, and convert the same into money, and to collect all debts, bonds, notes and other claims and ehoses in action, and for that pur- pose, if necessary to bring suit in the names of the debtors or either of them, with full power to compromise claims, discount bills and complete or refuse to complete contracts heretofore entered into by the debtors, as he in his discretion may deem best. 2. And in the meantime and until said premises and property respectively shall have been sold and converted into money as aforesaid, to manage, em- ploy, repair and insure against damage by fire or otherwise, at the cost of the trust estate all or any part of said premises and property. 3. And furthermore, and for such length of time as the said assignee may deem it for the best interests of said creditors, to carry on the business heretofore carried on by the debtors,, and for that purposes to make such ad- vances from the trust estate as he may think fit. 4. To pay from the proceeds of said trust estate all necessary or proper eosts, charges and expenses incurred in the execution of these trusts, includ- ing the expenses of preparing this instrument and reasonable and proper charges for the services of the assignee hereunder; all taxes due to the United States, the State or any county, town or city; all sums necessary to discharge any valid liens for labor or materials or otherwise; all wages due to workmen, clerks, salesmen or servants for services rendered within three months before the date of this indenture, not exceeding three hundred dol- lars to each; and any other claims which have priority under the Bank- ruptcy Laws of the United States. 5. To apply the balance of the funds in his possession to the payment, equitably and ratably of the debts and liabilities of the debtors to the credi- tors which were at the date of this indenture provable in bankruptcy against the debtors or either of them, and for the amounts so provable ; creditors of said copartnership to be first paid out of the partnership property, and of said individual partners out of the private property of said individuals re- spectively, and creditors holding security to receive dividends only on the amount of their claims in excess of the value of such security; such pay- ments to be made in instalments at such times as the assignee shall think fit, and to pay any balance remaining after the full payment of said debts to the debtors. 6. It is understood and agreed that dividends are to be paid only on the claims of creditors of said firm and of said individual partners who shall within thirty days after the date of this indenture become parties hereto by signing and sealing the same, and who shall within that time furnish the assignee with a statement of their respective claims; but the assignee may in his discretion, and for good cause shown; permit other creditors to be- come parties hereto after the expiration of said thirty days. 7. The assignee shall have full power to examine and adjust the claim of any creditor, and to fix the amount for which such claim is to be entitled to dividends. In case of any disagreement between the assignee and such creditor as to the validity of his claim or the amount thereof the matter shall be submitted to arbitration, and the decision of the arbitrator, or of the ma- jority, if there be more than one, shall be final. 774 BANKRUPTCY. 8. The debtors agree to aid the assignee in the performance of liis duties by furnishing any required information in regard to their property and business and the claims of their creditors ; and they hereby make, constitute and appoint the said assignee, or his successors for the time being under the trusts herbey created, as their attorney and the attorney of each of them, in their names and stead to execute, seal with their seals, acknowledge and deliver any and all written instruments which may be necessary or proper to carry into effect the terms of this indenture, and they further agree to execute, seal, acknowledge and deliver, at the request of the assignee, any instrument or instruments which he may deem necessary for the purposes aforesaid. 9. This indenture further witnesseth, that in pursuance of said agreements and in consideration of the premises, the said creditors respectively includ- ing all who shall become parties hereto hereby release the said debtors from said debts, and from all other debts owing to them by s&,id debtors re- spectively, in respect whereof they are entitled to receive dividends under this indenture, and from all actions, claims and demands whatever other than their respective rights under these presents in respect thereof. 10. Provided however, and it is hereby agreed that these presents shall not in any way prejudice or affect the rights or remedies of said creditors against any surety or sureties or any person or persons other than the said debtors, nor any security which any of said creditors may have for his debt. 11. A majority in number, representing two-thirds in value, of creditors, parties to this indenture, present or represented at a meeting of creditor? called for the purpose by a notice signed by creditors representing one-fifth of the aggregate claims against the estate, may remove the assignee for any cause which may seem to them sufficient, and may choose a new assignee in his stead and appoint a committee to execute to such new assignee a deed of appointment, the expense of such proceeding to be paid from the estate. In case of the death or resignation of the assignee a successor may be chosen by vote of a majority in number and value of creditors present or represented at a meeting of creditors called in the manner above provided. Any successor to said assignee elected as hereinbefore provided shall suc- ceed to the title of said assignee to all the trust estate in his hands and be vested with all the powers and become subject to all the trusts in this in- denture set forth. In Witness Whereof, The said (debtors) and the said (assignee) have hereunto set their hands and seals the day and year first above written, and the several persons whose names appear in the schedules hereto have here- unto set their hands and seals, and the several corporations executing these presents have caused their corporate seals to be hereto affixed, and these presents to be subscribed in their names by their respective oflicers upon the days stated opposite their respective names and seals in said schedules. (Signature of partnership.) (Signatures and seals of individual partners.) (Signature and seal of assignee.) WILLS. 775 Schedule of Partnership Creditors. Signatures an& Seals of Creditors. Amount. Dates of Execution. Schedule of Individual Creditors of' Schedule of Individual Creditors of (Partner). {Partner). CHAPTER XXXIX. OP THE DISPOSAL OF PROPERTY BY WIH. Section I. OF WILLS. Few persons are aware how very difficult it is to make an un- objectionable will. There is nothing one can do, in reference to which it is more certain that he needs legal advice, and that of a trustworthy kind. Eminent lawyers, not practised in this pecu- liar branch of the law, have often failed in making their own wiUs, both in England and in this country. And there are seldom blank forms for wills printed and sold, as there are for deeds and leases. Nevertheless, it may happen that one is called upon to make his own will, or a will for his neighbor, under circumstances which do not admit of delay ; or he may have some interest in the will of a deceased person, and questions may have arisen, which some knowledge of legal principles will answer. We shall try to state here what may be of use in such eases; and shall append a form for a will. Any person of sound mind and proper age may make a will. A married woman formerly could not do so, unless in relation to trust property, whereof the trust or marriage settlement reserved 776 THE DISPOSAL OF PROPERTY BY "WILL. to her this power ; but now by statute in all the States she is em- powered to dispose of her property by will, subject in some States to limitations as to the interests of her husband. One must be of full age in order to devise real estate. But in most of our States minors may bequeath personal property ; and a frequent limitation of the age for such bequest is eighteen years for males, and sixteen years for females. The testator should say distinctly, in the beginning of the in- strument, ihat it is his last will. If he has made other wills, it is usual and well to say, "hereby revoking all former wills;" but the law gives effect to a last will always. It should close with the words of attestation: "In witness whereof, I have hereunto signed and sealed this instrument, and published and declared the same as and for my last will, at on this day of " Then should follow the signature and seal; for this latter, although not always re- quired by law, is usually and properly affixed. ' The witnessing part is very material. The requirements in the different States are not precisely alike ; but they are all in- tended to secure such attestation as will leave the fact of the ex- ecution of the will, and its publication as such, beyond doubt. In a very few States, it is enough if the signature be proved by credible witnesses, although there be no witnesses who subscribed their names to the will. In many, two subscribing witnesses are enough. It is so in. the provinces of the Dominion of Canada, generally. But in some States it is necessary, and in all I recom- mend, that the testator should ask three disinterested persons to witness his will ; and should then, in their presence, sign and seal it, and declare it to be his will ; and they should then, each in the presence of the testator and of the other witnesses, sign their names as witnesses. See the Abstracts at the close of this chapter. Each should see the execution which he says he witnesses ; and the signing by the witnesses should all be seen by the testator ; but the law is satisfied if the thing is done near the testator, and where he can see if he chposes to look. If the testator is too feeble to write his name, let him make his mark-; and for this purpose any mark is enough, although a cross is commonly made. ~ So, if a witness cannot write his name, he may make his mark ; but this should be avoided if possible. It is not necessary for the wit- nesses to know anything about the contents of the will, but is WILLS. 777 essential that they should know that the instrument they are called upon to attest is a will. The witnesses' names should be subscribed to an attestation clause, and in this any alteration in the will should be noticed. If the attestation be in the following words, it will be safe in any part of this country : ' ' At on this day of the abovenamed signed and sealed this instrument, and published and declared the same as and for his last will ; and we, in his pres- ence, and at his request, and in the presence of each other, have hereunto subscribed our names as witnesses." Witnesses should be selected with care, where that is possible ; for if any question arises about the testator's sanity, or anything of the kind, their evidence is first to be taken, and is very impor- tant. It is desirable also that the witnesses should be persons well known and permanently located, so that they may readily be found when their testimony is required. For this, among other reasons, domestic servants and persons only casually present should not act as witnesses if others can be procured. In Massa- chusetts, and perhaps in. some other States, a person who has been convicted of a felony is not a competent witness to a will; nor is the wife or husband of the testator or testatrix. But by a recent statute in Massachusetts it is provided that the incom- petency of an attesting witness to a will, who is not disqualified by insufficiency of understanding, shall not render the will invalid. As a general rule, however, any person competent to do ordinary acts of business may be witnesses. Nor do the usual qualifications for business apply. Thus, married women and minors may be witnesses of wills. But no person should be called upon to witness a will who is a legatee, or an executor, or otherwise interested in the will, or the wife or husband of such person. If such a person were a witness, it might not avoid the will ; but a legatee would lose or be obliged to renounce his legacy ; and, generally, it might lead to unintended results. What was said in relation to deeds, of witnesses remembering, etc., or proof of handwriting in case of their death or absence, is true also of wills. As to the body of the will, the testator must express his wishes as clearly and accurately as possible; and, unless he has good legal advice, he should make the disposition of his property as simple as possible. 778 THE DISPOSAL OF PEOPEETY BY "WILL. , The word "bequeath" applies, properly, to personal estate only; the word "devise" to reai estate only. It is safe enough to begin, "I give, bequeath, and devise my estate and property, as follows: that is to say," — and then go on and tell what shall be done with this and that piece of property, or sum of money. Words of inheritance should be added to any devise of land (if not intended for the life of the devisee only), as was said in ref- erence to deeds ; although they are not required in wills so per- emptorily as in deeds. The words of inheritance are,^ — To A B ' ' and his heirs. ' ' If it is intended, as usually is the case, that the will should apply to all the real estate possessed by the testator at the time of his death, although purchased after the will is made, there should be a clause expressing this intention. If children are not provided for in a will, the law sometimes presumes they were forgotten ; and it gives to any such child the same share as if there were no will, unless the omission is ex- plained- in the will, or by evidence, and shown to have been in- tentional. If the child were provided for in the lifetime of the father, the law, generally, would not presume that the child was forgotten -, it is best, however, to guard against any question of the kind, by saying that the omission to give to the child any- thing is intentional. If it be intended that inheritance taxes on any legacies or an- nuities shall be paid from the residuary estaite, so that the full amount of such legacies or annuities shall be paid to the legatee or annuitant, it is important that this should be distinctly stated. A testator should always name his executors; but the will is perfectly good without any executor being named, for the court of probate will appoint an "administrator with the will an- nexed. ' ' If the testator desires that his executor or trustee should not give bonds, he should say so distinctly in his will. This is usually done by adding after the words of appointment : ' ' and I request that he (or they) be exempt from furnishing sureties on his {or their) official bonds. An olographic (or holographic) will is one written entirely by the testator's hand. Such wills are valid without attestation by witnesses, in some of the States. WILLS. 779 A nuncupative will is one declared orally by the testator in the presence of witnesses and afterwards reduced to writing. Such wills are authorized by statute in many of the States, under vari- ous restrictions, but usually only for the use of soldiers in active service, or of sailors when at sea, and are limited to the disposi- tion of personal property. In the provinces of the Dominion of Canada, generally the laws as to the construction, effect, and execution of a will are the same as in the United States : the principal difference being that, in the Province of Quebec, the French rule prevails, and an olo- graph will is valid without witnesses. Section II. CODICIL. A CODICIL is a little additional will. That is, it is a testamen- tary disposition, not revoking the former will, but varying it in some way, or making changes in it. There can be but one will, and that the last ; but there may be any number of codicils, all valid. The changes made by a codicil in a will, or in former codi- cils, should be very distinctly stated ; and some words like these should be used: "I hereby expressly Confirm my former will, dated excepting so far as the disposition of my property is changed by this codicil." And the codicil should be called, at the beginning and end, a codicil, and executed and witnessed in the same manner as a will. If a codicil gives one a legacy, who has already one by the will, the codicil should state whether it gives the second legacy in- stead of the first, or in addition to it. And if advances are made to a child during life, there should be an indorsement on the will (but a statement in the will or codicil would be better), stating whether these advances are to be charged to him, and in what way, whether with interest, etc. Section III. REVOCATION OF WILLS. The law concerning the revocation of a will is quite nice and technical. A codicil, we have seen, does not revoke, and a new will does. So might teariag off the name ; but then the question might come, who tore it off? It is better to leave neither this nor 780 THE DISPOSAL OF PROPEETY BY "WILL. . any other question, and therefore to destroy a will which it is in- tended to revoke. If the will is out of the testator's reach and power, and so cannot be destroyed, it would be best to make a new will, revoking the old one ; which any testator can always do. A will is revoked by the operation of law, if the testator after- wards marry and have a child ; and, as a general rule, marriage alone operates as a revocation, unless the will itself shows that it was made in contemplation thereof. If the testator, after this, in- tends that his will shall take effect, he should expressly confirm it ; and the best way to do this would be by making a new will. If he leaves anything to his wife, and intends that she should have it instead of dower, or of the additional rights which recent statutes in some of the States have given her, he should say so. And then she will not have both, but may choose between the provision of the law and that of the will, taking whichever she prefers, and leaving the other. For the rights of the wife or widow in the several States, I refer back to the abstract of the statutes of the several States, in- Chapter IV. Annexed to this chapter is an abstract of the laws of all the States relating to wills. It is impossible to do more than to give such forms and rules as will be applicable to all wills, and enable any person to draw a simple will with safety. No one can express accurately provi- sions for trust estates, remainders, executory devises, etc., with- outout knowing the law on these subjects — and this is an exten- sive and difficult department of the law. All that is necessary, and may be relied upon as generally sufficient, is as follows : (344.) Form of a Will. I, of (place and occupation), make this my last will and testa- ment. I giye, devise, and bequeath all my estate and property, real and per-, sonal, as follows, that is to say : Then follow all the provisions and disposition of property which the testator intends, stated fully, plainly, and as accu- rately as possible, paying due regard to the rules and principles laid down in the chapter of this book on this subject. If these provisions are carefully presented in distinct and intelligible lan- guage, the courts will generally supply whatever of technicality FORMS OF WILLS. 781 is wanting. Then follows, first, the appointment of an executor, and then the execution, and finally the declaration of the wit- nesses, thus: I appoint (name, residence, and occupation) executor (or executors if more than one 'be desired) of this my will. In Witness Whereof, I have signed and sealed and published and de- clared this instrument as my will, at (ptoce), on (date). (Signature.) (Seal.) The said at said (place),' on said (day), signed and sealed this instrument, and published and declared the saidfe as and for his last will in our presence. And we, at his request, and in his presence, and in the pres- ence of each other, have hereunto written our names as subscribing witnesses. (Mere follow the names of three witnesses.) A codicil should be written thus : I, . of (place and occupation), do make this codicil to my last will and testament dated , hereby ratifying and confirming my said will, and the codicils thereto (if there he any), dated , so far as this codicil is consistent therewith; and do hereby — Then follows whatever disposition the testator chooses to make, stating and describing it as he would if it were a will, and ex- ecuting it, and having it attested in the same manner as if it were a will, excepting that, instead of calling it a will, wherever that word occurs, he says, "codicil" instead of "will." If he gives in his will or codicil a legacy to a woman, it is generally best to add "this legacy (or bequest) to be for her sole and separate use, independent of her husband, at all times. ' ' (345.) Copy of a Fuller Form of a Will. Be It Kemembered, That I, in the city of in the State of , Esquire, do make this my last will and testament, in manner following. That is to say, — I order and direct that all my just debts shall be paid with convenient speed. I give unto Mr. of said city, merchant, the amount of moneys due and owing from him to me, according to the tenor and efEeet of two promissory notes signed by him, viz : one dated October 16, 1819, for ninety- six hundred and eighty dollars ; one dated August 9, 1822, for five thousand dollars; and I order said notes to be cancelled. To the wife of said I give an annuity of six hundred dollars, to be paid her in two equal and half-yearly payments of three hun- dred dollars each. 782 THE DISPOSAL OF PROPERTY BY WILL. It is my will, and I order and direct that a trust fund of ten thousand dollars shall be raised out of my estate and invested at interest, the income and produce of which trust I give unto of , single woman, to be paid to her half-yearly, during her natural life. And at the decease of the said the principal sum or trust fund shall be paid to and among such person and persons in such shares and portions as she, .the said by any writing by her signed in the presence of two or more credi- ble witnesses, shall give, direct, and appoint. And in default of such ap- pointment, then said trust fund, or principal sum shall go, as the residue of my estate, to the residuary legatee hereinafter named. I also direct that another trust fund of ten thousand dollars shall be raised out of my estate and invested at interest. And I give the interest and produce of this trust fund, when and as it accrues, unto the wife of . It is my will that the income of this fund, or principal sum shall, during the natural life of said either be paid into her proper hand, or upon her order or receipt, signed by her alone, notwithstand- ing her coverture. And I declare that neither the principal nor income of this fund shall be subject to the control, debts or engagements of the pres- ent or any future husband of said the same being intended for her sole and separate use. At the decease of said I give said principal sum or trust fund to the issue of said and in default thereof to such other person or persons as she, by a, last wUl, or any writing in the nature of a last will, shall give, direct, or appoint the same ; and in default of such appointme'nt, it is my will that said trust fund or principal sum shall be disposed of and pass as part of the residue of my estate. To wife of of I give three hundred dollars, and direct three notes, held by me, signed by her husband, for one hundred dol- lars each, to be cancelled. To wife of of there shall be paid in money, or delivered in articles necessary for her support, at the discretion of the ex- ecutor of this my wUl, one hundred and fifty dollars annually, during her life, at such tiine and in such portions as he shall choose. I give to son of one thousand dollars, and' order that he shall be charged with such amount of moneys as he shall be my debtor for, upon promissory notes at my decease. I devise the wood-lot in -which I bought of one to wife of above named, to hold to her for life, the remainder I give to the child or children of said who shall survive her, and his, her, or their heirs for ever. If : shall be a member of my family at the time of my decease, she shall and may continue to reside in my dwelling-house and participate in the use of the stores and furniture, in common vfith others of my family, for the term of six months thereafter. To each of those of the following named persons who shall be in my serv- ice at the time of my decease, I give one hundred dollars, viz: : ABSTRACTS CONCEENING WILLS. 733 My will is that all annuities hereinbefore given shall take date from the day of the probate of this will ; and all legacies, not annuities, shall be paid within eight months from the same period. It is my will that all the capital or principal Bums which shall be requisite to yield the several annuities above mentioned may, by my executor, be paid to to be held and managed by said corporation as trustees under this will; or, if the said executor and the parties beneficially interested therein shall so elect, said capital or principal sums, or any of them, may be placed in the hands of such trustee or trustees as shall, upon application to the Supreme Court of sitting in chancery, be appointed to receive the same, and perform this, my will, in that behalf. I hereby authorize and empower my executor or any administrator with the will annexed who shall assume the execution of this will, to m^ke sale of, and convey, in such manner, at such times and on such terms as such executor or administrator may deem best, any parcel or parcels of real es- tate, of which I may die seized, for the purpose of raising any and all such sums of moneys as shall be required for the trust funds, annuities, and legacies hereinbefore directed to be created, given, and bequeathed. All the residue of my estate, real, personal, and mixed, wheresoever it may be found, and of whatsoever it may consist, I give and devise unto to hold to him and his heirs forever. I hereby revoke all wills by me heretofore made, and constitute the said executor of this my last will. In Witness Whereof, I, the above-named testator, have hereunto set my hand and seal, this twenty-sixth day of in the year of our Lord nineteen hundred and ^^-.^__. [L. S.] Then and there signed, sealed, and published by the testator, as and for his last will, in the presence of us, who, at his request, in his pres- ence, and in presence of each other, have hereto set our names as witnesses. ABSTRACTS OF THE LAWS OF ALL THE STATES AND TERRI- TORIES CONCERNING WILLS. ALABAMA. Every person of full age and sound mind may make a will. It must be in writing, signed by the testator, attested by at least two witnesses in the presence of the testator. Persons of the age of eighteen may dispose of personal property by will. ALASKA. Persons of full" age and of sound mind may make a vfill disposing of real and personal property. It must be in writing, signed by the testator, or at Ms direction and in his presence, and attested by two competent witnesses subscribing their names in the testator's presence. Olographic wills, with or without attestation, are allowed. 784 THE DISPOSAL OP PBOPEETY BY WILL. AEIZONA. Every person of full age or married may make a will. It must be in writ- ing, signed by the testator and attested and subscribed in his presence by two or more witnesses above the age of fourteen years. If wholly written by the testator no witnesses are necessary. ARKANSAS. Every person over twenty-one years of age may devise real and personal property, and persons over eighteen may bequeath personal property. The testator must subscribe hia name at the end of tlie will, in the presence of two witnesses, or shall acknowledge to them it was so subscribed, and shall declare it to be his will, and the witnesses must sign at the request of the testator. When i^e entire body and signature of the will are in the hand- writing of the testator it may be proved by the evidence of three witnesses to the handwriting and signature without subscribing witnesses. Wills may be typewritten. Nuncupative wills of $500 worth of personal property or less are validy if made during the last illness of the testator. CALIFOBNIA. Every person over the age of eighteen, of sound mind, may dispose of property, real or personal, by will. Wills, unless holographic, must be sub- scribed at the end by the testator, or some person in his presence, and by his direction, and must be attested by two witnesses to whom the testator declares it to be his will in the presence of, and at the request of, the tes- tator, and in the presence of each other. Bequests for charitable purposes must be made at least thirty days before death of testator and cannot ex- ceed one-third of estate if he leave legal heirs. Wills may be typewritten. Nuncupative wills are restricted by statute. COLORADO. Every person twenty-one years of age if a male, or eighteen years if a female, may dispose of property, real or personal, by will, and persons seven- teen years of age may dispose of personal estate. All wills must be in writ- ing, signed by the testator or some one in his presence, at his request, and attested in his presence by two or more credible witnesses. Neither husband nor wife can bequeath more than half of his or her property away from the other, but election by survivor must be filed within six months. CONNECTICfUT. Every person eighteen years of age, or more, and of sound mind, may make a will, and every devise passes the whole title unless clearly limited; the will must be in writing, signed by the testator, and attested by three witnesses in his presence, and in the presence of each other. Typewritten wills are valid. DELAWARE. Any person of the age of twenty-one years, and of sound mind, may make a will. The will must be in writing, signed by the testator, attested and subscribed in his presence by two credible witnesses. ABSTEACTS CONCEENING WILLS. 785 DISTEICT OF COLUMBIA. Any person twenty-one years of age if a male, or eighteen if a female, and of sound mind, may make a will. All wills must be signed by the tes- tator and attested and subscribed in his presence by two credible witnesses. Nuncupative wills only by soldiers and mariners; they require two witnesses and must be reduced to writing within ten days. All devises and bequests for religious purposes must be made ait least one month before death. FLOEIDA. Every person of the age of twenty-one years, and of sound mind, may make a will, and such will must be signed by the testator; or by some one in his or her presence and by his or her direction, and if disposing of real es- tate must be attested and subscribed in his or her presence, by two or more witnesses. Nuncupative wills must be proved by three witnesses present. GEOEGIA. Persons of fourteen years of age and sound mind may make a will. A married woman may make a will of her separate estate. Wills must be in writing, signed by the testator, or by some person in his presence, and by his express direction, and attested and subscribed in his presence by at least three competent witnesses. Nuncupative wills must be proven by the oath of three competent witnesses. HAWAII. Every person of the age of eighteen years or over and of sound mind may dispose of his estate, real and personal by will. It must be in writing, signed by the testator, or by some person in his presence and by his express direction, and attested by two or more competent witnesses, subscribing their names in the presence of the testator. Legacies to witnesses are void unless there are two other competent witnesses. IDAHO. Any person of the age of eighteen may make a will. It must be signed by the testator in the presence of two witnesses, who must sign in the pres- ence of each other, unless the will be nuncupative or olographic. Typewrit- ten wills are valid. Devises and' bequests for charitable purposes must be made at least thirty days before death. ILLINOIS. Any male of twenty-one years, or female of eighteen years, of sound mind and memory, may make a will. It must be in writing, signed by the testa- tor, or by some one in his presence, and by his direction, and attested by two or more credible, disinterested witnesses in the presence of the testator. A devise to a witness is void unless the will is otherwise suflSciently attested. INDIANA. Any person, twenty-one years of age and of sound mind, may make a will and devise entire estate, saving provision for widow. The will must be in writing, signed by the testator, or in his presence, and by his direction, and 50 786 THE DISPOSAL OF PROPERTY BY WILL. attested and subscribed in his presence by two or more competent witnesses. Typewritten wills are valid, as are nuncupative wills of personal property not exceeding one hundred dollars in value. IOWA. Testator must be of full age and sound mind. Personal property to the value of three hundred dollars may be bequeathed by a verbal (nuncupative) will, attested by two competent witnesses. All other wills must be in writ- ing, witnessed by two competent witnesses, and signed by the testator, or by some one in his presence, and by his express direction. A devise to a charity shall not exceed one-fourth of the value of the estate if spouse, child or parent survive testator. KANSAS. Any person of full age, of sound mind, may make a will. It nfust be in writing, signed at the end by the testator, or by some one in his presence, and by his direction, and it must be attested in the presence of the testator by two or more competent witnesses, who saw the testator sign, or heard him acknowledge the will for his last will and testament. A husband or a wife cannot bequeath away more than one-half of his or her estate. Nuncu- pative wills are valid, where there are two competent witnesses thereto, if they were made during the last sickness of the testator. KENTUCKY. The testator must be of sound mind, and not under twenty-one years of age. Will must be in writing, signed by the testator, or some one for him, a.nd, if not wholly written by himself, must be subscribed or acknowledged in the presence of at least two credible witnesses, who must sign in the pres- ence of the testator. A legatee, who is a witness to the will must, if his tes- timony is necessary to prove it, surrender his advantage thereunder. LOUISIANA. Wills are of three kinds: 1. Nuncupative, or open testaments. 2. Mystic, or sealed testaments. 3. Holographic testaments. Nuncupative testaments, by public act, must be received by a notary public in the presence of three ^ witnesses, residing where the will is executed, or five witnesses not residing in such place. It must be dictated by the testator, and written by the notary as dictated, then read to the testator in the presence of the witnesses, i and signed by the testator, and attested by all the witnesses. Nuncupative | testaments, by private act, must be written by the testator himself, or from! his dictation, in the presence of five witnesses residing in the place where the will was made, or seven not residing in such place, or it is sufficieftt if j the testator presents the paper, on which he has written the will, declaring that the paper contains his will. In country places three resident, or five; non-resident witnesses, will be sufficient if a larger number cannot be ob- tained. It must be read by the testator to the witnesses and signed by tes- tator and all the witnesses. Mystic, or sealed instruments, are made as fol- lows: The testator must sign his dispositions, and the paper is then closed and sealed. He shall then present it thus closed to a notary public andj ABSTEACTS CONCERNING WILLS. 787 three witnesses and declare it to be his last Tvill and testament in their pres- ence. The notary must then draw up the act of superscription on the same paper or envelope, and sign it together with the testator and the witnesses. Holographic wills are entirely written, dated, and signed by the testator himself. No child under sixteen years of age is permitted to be a witness. Any person over the age of sixteen may make a will. Wills are the subject of so many formalities in this state that it will be difBeult for a layman to understand the technicalities. MAINE. The testator must be of sound mind, and twenty-one years of age. The will must be signed by the testator, or some one in his presence, and at hia request, and subscribed in his presence by three credible witnesses, not in- terested in the will. No more than one hundred dollars worth of property can be disposed of by nuncupative will where there are less than three wit- nesses. A married woman or widow of any age may make a will. MARYLAND. Every person of twenty-one years of age if a male, or eighteen years if a female, may make a will. The will must be in writing, signed by the testa- tor or some one in his presence, and by his express direction, and attested and subscribed in his presence by two or more credible witnesses. Type- written wills are admitted to probate. Gifts for religious purposes, to take effect at death, must be approved by the legislature. MASSACHUSETTS. Every person of full age and sound mind may make a will, which must bo in writing, signed by the testator, or by some one in his presence and by his direction, and attested and subscribed in his presence and in the presence of each other by three or more competent witnesses to whom the testator has declared it to be his will. A soldier in actual military service and a mariner at sea may make a nuncupative will of personal property. Beneficial de- vises or bequests to attesting witnesses are void unless there are three others, MICHIGAN. The testator must be of full age and sound mind. A devise passes the whole interest, unless specially limited. The will must be in writing, signed by the testator, or some one in his presence, and by his direction, and at- tested and subscribed in his presence by two or more competent witnesses who are disinterested. Typewritten wills are valid. Nuncupative wills up to three hundred dollars are valid where there are two witnesses. Devises and legacies to witnesses are void, unless there are enough other witnesses to prove the will, but in any case the witness may take an amount equal to what he would have received had the will not been proved. MINNESOTA. The requirements of a will are the same as in Michigan. 788 THE DISPOSAL OP PEOPEETY BY WILL. MISSISSIPPI. The testator must be twenty-one years old, wiiether male or female, and of sound mind. The will must be signed by the testator, or some one in his presence, and by his direction, and, if not holographic, attested by two credi- ble witnesses, who sign in the presence of the testator. Nuncupative wills, if exceeding one hundred dollars, may be made in the testator's last sick- ness, and witnessed by two competent persons. No devises of lands for charitable or religious purposes are allowed, but personalty may be given to charity, but not to a religious body; MISSOTJEI. Males of eighteen years of age may make will of personal property; and of twenty-one, of both real and personal estate. Females of eighteen may make will of both real and personal estate. The will must be in writing, sigiied by the testator, or some one by his direction, in his presence, and at- tested by two or more competent witnesses, who sign in the presence of the testator. Typewritten vrills are valid. Wills of non-residents affecting real estate must be executed according to law of this State. MONTANA. Every person, over the age of eighteen, and of sound mind, may dispose of property, real or personal, by wijl. The will must be signed by the testa- tor, or by some person in his presence, and by his express direction, and at- tested and subscribed in his presence by two or more competent witnesses to whom he has declared it to be his will. A holographic will need not be wit- nessed. Typewritten vrills are valid. Nuncupative wills are allowed under certain conditions, if the estate is less than one thousand dollars. NEBEASKA. .Any person of full age ^nd sound mind may make a will. Wills must be in writing, signed by the testator, or some one in his presence, and by his direction, and attested and subscribed in the presence of the testator by two or more competent witnesses. Nuncupative wills are allowed, but only under statutory restrictions. NEVADA. The testator must be eighteen years of age and of sound mind. The will must be in writing, signed by the testator, or by some one in his presence, by his direction, and attested by two competent witnesses, subscribing their names in presence of the testator. Holographic will need not be witnessed. Nuncupative vidlls of estates of less than one thousand dollars are allowed under certain restrictions. Devises to witnesses are void unless the will can be otherwise proved than by their testimony. NEW HAMPSHIRE. Any person of twenty-one years of age and sound mind may make a will. It must be in writing, signed' and sealed by the testator, or some one in his presence, and by his direction, and attested and subscribed by three or more credible witnesses. Nuncupative wills are allowed under certain conditions. ABSTRACTS CONCEENING WILLS. 789 NEW JEESET. Testator must be twenty-one years of age and of sound mind. All willa, since the year 1850, must be in writing, signed by the testator, or the signa- ture acknowledged by him, and he must declare the writing to be his last will in the presence of two witnesses, who are present at the same time, and who must subscribe the same in presence of the testator. A legacy or a devise to a witness is void, and such a witness is thereby rendered competent to prove the will. NEW MEXICO. Any person twenty-one years of age and of sound mind may make a will. ■ Wills may be written or verbal. If written, they must be signed by the testator, or some person for him, and attested by two or more credible wit- nesses who must sign as witnesses at his request, in his presence, and in the presence of each other. Verbal wills must be attested by the same number of witnesses, who must testify that testator was of sound mind and judg- ment, and must all be present, see and hear testator speak, and each must understand clearly and distinctly every part of the will. NEW YOEK. Males of eighteen and females of sixteen may make wills of personal property, but only persons of twenty-one years can devise real estate. Wills must be subscribed by the testator at the end, in the presence of each of the attesting witnesses, or acknowledged by him in their presence. There must be at least two witnesses who sign their names at the end, at the request of the testator; they should add also their residences, as failure to do so ren- ders them liable to fine. There are certain statutory restrictions as to the amount of bequests to religious or charitable institutions. NOETH CAROLINA, l^e testator must be twenty-one years of age, and of sound mind. The will must be in writing, signed by the testator, or some one in his presence, and by his direction, and subscribed in his presence by at least two disin- terested witnesses. Holographic wills, signed by the testator, and found among his valuable papers and effects, or lodged in the hands of some person for safe keeping, are allowed, and the handwriting must be proved by three witnesses. WiUs may be typewritten. Nuncupative wills are allowed under certain restrictions. NOETH DAKOTA. Any person eighteen years of age and of sound mind may make a will. Wills, unless holographic, must be signed by the testator, or by some person in his presence, and by his direction, in presence of two or more witnesses to whom he declares it to be his will, and who must subscribe their names as witnesses at his request and in his presence. A holographic will need not be witnessed. OHIO. The testator must be of full age and sound mind, and the will must be in writing or typewritten, signed at the end by the testator, or some one in his 790 THE DISPOSAL OF PBOPEETY BY WILL. presence and by his direction, and attested by two or more competent wit- nesses, who saw the testator sign or heard him acknowledge the will. Type- written wills are valid. Nuncupative wills and gifts to charities are allowed only under statutory restrictions. OKLAHOMA. Any person over eighteen years of age may make a will. It must toe In writing, and, unless holographic, witnessed by at least two competent wit- nesses, who shall subscribe the same. OREGON. Every person twenty-one years of age may dispose of property, real and personal, by will, and every person of eighteen may bequeath goods and chat- tels. The will must be in writing, signed by the testator, or some one for him in his presence, and under his direction, who must subscribe his own name as a witness and state that he subscribed testator's name at his request, and be attested by two or more competent witnesses in his' pres- ence. Typewritten wills are customary. PENNSYLVANIA. Any person of full age and sound mind may make a will. It must be in writing, signed by the testator, or some one in his presence for him, and at- tested by two or more competent witnesses. Nuncupative wills and charita- ble gifts are restricted. Typewritten wills are proper. THE PHILIPPINES. Every person of the age of eighteen and of sound mind, including married women, may make a will, but caimot deprive husband or wife or heirs of the interest in his or her estate appertaining to them by law. It must be in writing, signed by the testator, or by some one in his presence, and by his express direction, and attested and subscribed by three or more credible wit- nesses in the presence of the testator and. of each other. The testator must also sign each page on the left niargin, and the attestation must state the number of sheets or pages used, and the fact that the testator signed the will on every page thereof in the presence of the three witnesses. Any per- son eighteen years of age and of sound mind, not deaf, dumb or blind and able to read and write may be a witness. Legacies to witnesses or their near relatives are void, unless there are three other competent witnesses. POETO EICO. Any person of the age of fourteen or over may make a will. Wills may be holographic, open, closed, or nuncupative. A holographic will may be made only by a person of full age. It must be written and dated entirely by the testator and signed by him. It must be proved in court by three witnesses to the handwriting, but need not be signed by attesting witnesses. An open will is executed before a notary and three witnesses, who must be of full age, residents of the locality, knowing the language of the testator, and not related to the notary, his clerks or servants, or to heirs or legatees. absteactS conceening- wills. 791 A closed will must be signed on all the sheets by the testator, placed in a sealed envelope and authenticated by the testator as his will in the presence of a notary and five witnesses. Wills made abroad by citizens of Porto Eico may be executed according to the laws of the place where made. Mutual wills are forbidden. There are restrictions on the amounts which a testator may leave away from his heirs. EHODB ISLAND. Persons eighteen years of age and of sound mind may bequeath personal property, and persons of twenty-one years may devise real estate. The will must be in writing, signed by the testator, or some one for him in his pres- ence, and by his express direction, and attested and subscribed in his pres- ence by two or more witnesses. SOUTH CAEOLINA. Persons of twenty-one years of age may devise real estate, and persona under twenty-one, but of years of discretion, may bequeath personal prop- erty. Three or more credible witnesses are necessary, who must sign in presence of the testator and of each other. The will must be in writing, and signed by the testator. Kuncupative wills are allowed only under certain restrictions. SOUTH DAKOTA. Every person eighteen years of age may make a will. It must be in writ- ing, subscribed by the testator, or by some person in his presence and by his. direction, in the presence of two attesting witnesses to whom he declares it to be his will, and who must subscribe the same as witnesses at his request and in his presence. A holographic will need not be witnessed. TENNESSEE. Any person of sound mind, and twenty-one years of age, may dispose of real estate by will. Males at fourteen, and females at twelve, may bequeath personal property. Wills of real estate must be subscribed by the testator, or some one for him, and attested and subscribed in his presence, by at least two disinterested witnesses. Holographic wills found among the testator's valuable papers, or deposited for safe keeping, are allowed, if the handwrit- ing is proved by three witnesses. No subscribing witnesses are necessary to wills of personalty, but two witnesses or equivalent testimony are neces- sary to establish them. Nuneupativ* wills are subject to statutory limita- tions. TEXAS. Every person twenty-one years of age, or married, and of sound mind, may make a will. It must be signed by testator, or for him in his presence, and by his direction, and if not holographic, attested by two or more credible witnesses over fourteen years of age. Will may be typewritten. Nuncupa- tive wills must follow the statute as to the amount disposed of, the time when made, and the number of witnesses. 792 THE DISPOSAL OF PBOPEETY BY WILL. UTAH. Any person of the age of eighteen years and of sound mind may dispose of property, real and personal, by will, except that a husband may not dis- pose of more than two-thirds of his real property without the consent of his wife. The win must be in writing, subscribed by the testator, m the pres- ence of two or more witnesses, declaring it to be his will, and the witnesses must subscribe as witnesses, at his request, in his presence, and in the pres- ence of each other. Wills may be typewritten. Holographic wills require no witnesses. Nuncupative wills must follow the statutory regulations. Gifts to witnesses are void unless the will can be otherwise proved. YBEMONT. Every person of full age and sound mind may make a will. A will must be in writing, signed by the testator, or for him, in his presence, and by his direction, and attested and subscribed by three or more credible witnesses, in his presence, and in presence of each other. Wills may be typewritten- Nuncupative wills allowed under certain restrictions. VIEGINIA. Every person twenty-one years of age, and of sound mind, may make a will of real estate, and persons of eighteen years may bequeath personal property. The will must be signed by the testator, or some one for him, by his direction, and in his presence, and, unless holographic, attested in his presence, and in the presence of each^ other, by two or more competent wit- nesses. Nuncupative will may be made by soldiers in, actual military service, or by mariners at sea. WASHINGTON. Every male above the age of twenty-one years, and every female above the age of eighteen, may dispose of property, real and personal, by will. The will must be in writing, signed by the testator, or by some person under his direction, and attested by. two or more competent witnesses, subscribing their names in the presence of the testator. Nuncupative wills are valid only when the provisions of the restrictive statute are complied with. WEST VIEGINIA. The testator disposing of real estate must be twenty-one years of age, and of sound mind. The will must be in writing, signed by the testator, or by some one for him, in his presence, and by his direction, and unless holo- graphic, the signature must be made and the will acknowledged in the pres- ence of two competent witnesses, present at the same time, and who sub- scribe in the presence of the testator. Testators, eighteen years of age, may dispose of personal property by will. Holographic wills require no witnesses. Wills may be typewritten. WISCONSIN. Every person of full age, and any married woman of the age of eighteen years, may make a will. WUls must be in writing, signed by the testator, or some one in his presence, and by his direction, and attestpd and sub- scribed in his presence by two or^nore competent witnesses. EXECUTORS AND ADMINISTRATORS. 793 WYOMING. Any person of full age and sound mind may make a will. The will must be in writing, signed by the testator, or by some other person, in his pres- ence and by his direction, and attested by two competent witnesses. Olo- graphic and nuncupative wills are allowed under certain restrictions. CHAPTER XL. > EXECTTTORS AND ADMINISTRATORS. Asr executor is a person named in the will of a deceased person, to settle his or her estate. There may be one or more ; and they may be male or female. An administrator is one appointed by the court to settle the estate of a deceased person. If the de- ceased left a will, but did not appoint an executor, or the ap- pointed executor refuses to act, or resigns, or dies, or for any reason fails to act, an administrator is appointed by the court "with the will annexed." The husband of a deceased wife, or the wife of a deceased husband, has generally the right to be ap- pointed administrator ; after them the next of kin in the order of relationship. But the courts have some discretion in the mat- ter. They act as the personal representatives of the deceased, hav- ing in their hands his means, for the purpose of discharging his liabilities, or executing his contracts, and of carrying into effect his will, if he have left one ; and, in general, they are liable only so far as these means (called assets), in their hands, are applica- ble to such a purpose. But they may become personally liable ; and a clause in the statute of frauds refers to this subject, mak- ing them not liable to pay any debt out of their own means, un- less they give a promise to that effect, in writing, signed by them. In this country, the judicial officer, or judge who has the charge of the settlement of estates, of the proof of wills, and of proceed- ings under them, is generally called the Judge of Probate. But in some States he is called Surrogate, Eegister or Registrar of "Wills or of Probate, Judge of the Orphans' Court, etc. His powers and duties are very similar all over the country. From his decrees or decisions an appeal may generally be taken, by a 794 EXECUTORS AND ADMINISTRATOES. party wlio thinks himself aggrieved, to some higher court. The Judge of Probate is usually a county of&cer, and his jurisdiction is limited to his county. If an executor or administrator receives, as such, a promissory note or bill of the deceased, and indorses the same with his name, without adding "executor," or "administrator," he is liable upon it personally. If he makes a note or bill, signing it " as ex- ecutor," he is personally liable, unless he expressly limits his promise to pay, by the words, "out of the assets of my testator," or, ' ' if the assets be sufficient, " or in some equivalent way ; but a note or bill so qualified would not be negotiable, because on con- dition. If an executor or administrator submits a disputed ques- tion to, arbitration, in general terms, and without an express lim- itation of his liability, and the arbitrators award that he shall pay a certain sum, he is liable to pay it whether he has assets or not. But if the award be merely that a certain sum is due from the estate of the deceased, without saying that the executor or administrator is to pay it, he is not precluded from denying that he has assets. Where a contract of the deceased is of an executory nature, and the personal representative can fairly and sufficiently execute all that the deceased could have done, he may do so, and enforce the contract. But where an executory contract is of 'a strictly per- sonal nature — as, for example, with an author for a specified work, or with an artist for a painting, the death of the writer be- fore his book is completed, or of the artist before the painting is finished, absolutely determines the contract, unless what remains to be done — as, for example, in the case of a book, the preparing of an index, or table of contents, etc., can certainly be done as well and to the same purpose and effect by another. If executors or administrators pay away money of the deceased by mistake, or enter into contracts for carrying on his business for the benefit of his estate, and to wind up his affairs, they may sue on such contracts either in their individual or their represen- tative capacities ; but they should sue in the latter capacity, in order to avoid a set-off against them of their individual debts. The title of an administrator does not exist until the grant of administration. Then it goes back to the death of the deceased ; but only in order to protect the estate, and not for any other pur- pose. And if an agent sells goods of the deceased, after his death, EXECUTORS AND ADMINISTRATORS. 795 and in ignorance of his decease, the administrator may adopt the contract, and stie upon it. On the death of one of several executors, either before or after probate, the entire right of representation survives to the others. But if an administrator dies, or a sole executor dies, no interest and no right of representation is transmitted to his personal rep- resentatives. An executor derives his authority from the will, and his duties begin at the death of the testator. They may be stated thus : 1. He should cause the deceased to be buried in a suitable man- ner. 2. He should offer the will for probate as soon as he can with a reasonable regard to his convenience ; and in proving the will, filing bonds, giving notice, making and returning an inventory, and the like, he must conform to the law of the State and the rules of the probate ; and he will obtain at the ofSce sufficient in- formation on all these points. 3. He must collect the property, and after paying the debts, he must distribute or dispose of the remainder as the will directs. 4. He must render his account from time to time, until a final settlement of the estate is made, and will be directed at the Pro- bate Office when and how to file his accounts. An administrator derives his authority from the court. But his duties are then substantially similar to those of an executor ; excepting, that he must distribute and dispose of the estate as the law requires, as he has no will to direct him, unless he is an administrator with the will annexed. The debts must be paid in a certain order. This is not pre- cisely the same in all the States ; but it is very generally as fol- lows: 1. Funeral expenses, charges of the last sickness, and probate charges. 2. Debts due to the United States. 3. Debts due to the State in which the deceased had his home. 4. Debts which are given priority by law. 5. To creditors generally. If the estate is insufficient to pay all the debts due from it, as soon as the executor or administrator finds this to be the case, he should represent the case as insolvent at the Probate Court, and thereafter follow the requirements of the law of the State and 796 GUAEDIANS. the rules of the Probate Office, in reference to insolvent estates of deceased persons. In most of the States, all the necessary forms or instruments are given to applicants at the Probate Office. CHAPTER XII. GUARDIANS. Guardians of all descriptions are treated by courts as trustees ; and in almost all cases they are required to give security for the faithful discharge of their duty, unless the guardian be appointed by will, and the 'testator has exercised the power given him by statute, of requiring that the guardian shall not be called upon to give bonds. But, even in this case, such testamentary provi- sion is wholly personal; and if the individual di^s, refuses the appointment, or resigns it, or is removed from it, and a substitute is appointed by court, this substitute must give bonds. The guardian is held, in this country, to have only a naked au- thority, not coupled with an interest. His possession of the prop- erty of his ward is not such as gives him a personal interest, being only for the purpose of agency. But for the benefit of his ward he has a very general power over it. He manages and disposes of the personal property at his own discretion, although it is safer for him to obtain the, power of the Bourt fox any important measure. He may lease the real estate, if appointed by will or court ; he cannot, however, sell the real estate without leave of the proper court. Nor should he convert the personal estate into real, without such leave. As trustee, a guardian is held to a strictly honest discharge of his duty, and cannot act in relation to the subject of his trust for his own personal benefit, in any contract whatever. And if a benefit arises thereby, as in the settlement of a debt due from the ward, this benefit belongs wholly to the ward. And it has been held that if a guardian makes use of his own money to erect buildings on the- land of his ward, without having an order of the court therefor, he cannot charge the same in account with his GUAEDIANS. 797 Ward, or recover the amount from the ward. But we doubt whether a rule so severe would be applied unless for special rea- sons. He must neither make nor suffer any waste of the inheri- tance, and is held very strictly to a careful management of all personal property. He is responsible not only for any misuse of the ward's money or stock, but for letting it lie idle; and if he does so without sufficient cause, he must allow the ward interest or compound interest in his account. To secure the proper execution of his trust, he is not only liable to an action by the ward, after the guardianship terminates, but, during its pendency, the ward may call him to account by his next friend, or by a guardian appointed by the court for the ac- tion. The courts have gone so far as to set aside transactions which took place soon after the ward came of age, and which were beneficial only to the former guardian, on the presumption that undue influence was used, and on the ground of public util- ity and policy. A guardian cannot, by his own contract, bind the person or estate of his ward ; but if he promise, on a sufficient considera- tion, to pay the debt of his ward, he is personally bound by his promise, although he expressly promises as guardian. And it is a sufficient consideration if such promise discharge the debt of the ward. And a guardian who thus discharges the debt of his ward may lawfully indemnify himself out of the ward's estate, or if he be discharged from his guardianship, he may have an ac- tion against the ward for money paid for his use. An action will not lie against a guardian on a contract made by the ward, but nuist be brought against the ward, and be defended by the guardian. The guardianship is a trust so strictly personal, or attached to the individual, that it cannot be transferred from him, either by his o^vn assignment or devise, or by inheritance or succession. A married woman cannot become a guardian without the con- sent of her husband ; but with that she may. A single woman who is a guardian generally loses her guardianship by marriage ; but she may be re-appointed. In some States, she loses it by statute ; in others, not. 798 INTBEPEETATION OF CONTBACTS. CHAPTER XLII. CONSTRUCTION AND INTERPRETATION OF CONTRACTS. Section I. GENERAL PURPOSE AND PRINCIPLES OF CONSTRUCTION. The importance of a just and rational construction of every contract and every instrument, is obvious. If any one contract is properly construed, justice is done to the parties directly in- terested therein. But the rectitude, consistency, and uniformity of all construction, enables all parties to do justice to themselves. For then all parties, before they enter into contracts, or make or accept instruments, may know the force and effect of the words they employ, of the precautions they use, and of the provisions which they make in their own behalf, or permit to be made by other parties. It is obvious that this consistency and uniformity of construc- tion can exist only so far as construction is governed by fixed principles, or, in other words, is matter of law. And hence arises the very first rule; which is, that what a contract means is a question of law. It is the court, therefore, that determines the construction of a contract. They do not state the rules and prin- ciples of law by which the jury are to be bound in construing the language which the parties have used, and then direct the jury to apply them at their discretion to the question of construction ; nor do they refer to these rules unless they think proper to do so for the purpose of illustrating and explaining their own decision. But they give to th€ jury, as matter of law, what the legal con- struction of the contract is, and this the jury are bound abso- lutely to take. A distinction is to be observed between the construction of a contract and the correction of a mistake. For, if it were in proof that the parties had intended to use one word, and that another was in fact used by a mere verbal error in copying or writing, such error might be corrected by a eoijrt of equity upon a bill filed for that purpose, and the instrument so corrected would be SOME GENERAL RULES OF CONSTRUCTION. 799 looked upon as the contract which the parties had made, and be interpreted accordingly. But this jurisdiction is confined strictly to those cases where different language has been used from that which the parties intended. For if the words employed were those intended to be used, but their actual meaning was totally different from that which the parties supposed and intended them to bear, still this actual meaning would, generally, if not al- ways, be held to be their legal meaning. Upon sufficient proof that the contract did not express the meaning of the parties, it might be set aside ; but a contract which the parties intended to make, but did not make, cannot be set up in the place of one which they did make, but did not intend to make. Section II. I SOME OP THE GEISTERAL RULES OF CONSTRUCTION. The subject-matter of the contract is to be fully considered. There are very many words and phrases which have one meaning in ordinary narration or composition, and quite another when they are used as technical words in relation to some special sub- ject ; and it is obvious that, if this be the subject-matter of the contract, it must be supposed that the words are used in this specific and technical sense. So, too, the situation of the parties at the time, and of the prop- erty which is the subject-matter of the' contract, and the inten- tion and purpose of the parties in making the contra'ct, will often be of great service in guiding the construction, because this in- tention will be carried into effect so far as the rules of language and the rules of law will permit. So the moral rule may be ap- plicable, that a party will be held to that meaning which he knew the other party supposed the words to bear, if this can be done without making a new contract for the parties. Indeed, the very idea and purpose of construction imply a previous uncertainty as to the meaning of the contract; for where this is clear and unambiguous, there is no room for con- struction, and nothing for construction to do. A court would not, by construction of a contract, defeat the express stipulations of the parties. And if a contract is false to the actual meaning and purpose of the parties, or of either party, the remedy does not lie in construction ; but, if the plaintiff be the injured party, 800 INTEEPEETATION OP CONTBACTS. in assuming the contract to be void, and establishing his rights by other and appropriate means ; or, if the defendant be injured, by defending against the contract on the ground of fraud or mis- take, if the facts support such a defense. A construction which would make the contract legal is pre- ferred to one which would have an opposite effect; and by an extension of the same principle, where certain things are to be done by the contract which the law has regulated in whole or in part, the contract will be held to mean that they should be done in such a way as would be either required or indicated by the law. The' question may be whether the words used should be taken in a comprehensive or a restricted sense; in a general or a par- ticular sense; in the popular and common, or in some unusual and peculiar sense. In all these cases the court will endeavor to give to the contract a rational and just construction ; but the pre- sumption — of greater or less strength, according to the language used, or the circumstances of the case — is in favor of the compre- hensive over the restricted, the general over the particular, the common over the unusual sense. It is a rule that the whole contract should be considered in determining the meaning of any or of all its parts. The reason is obvious. The same parties make all the contract, and may be supposed to have had the same purpose and object in view in all of it, and if this purpose is more clear and certain in some parts than in others, those which are obscure may be illustrated by the light of those! which are clear. Thus, the condition of a bond may help to explain the obligatory part. And the recital in a deed or agreement has sometimes great influence in the interpretation of other parts of the instrument. The contract may be contained in several instruments, which, if made at the same time, between the same parties, and in relation to the same subject, will be held to constitute but one contract, and the court will read them in such order of time and priority as will carry into effect the intention of the parties, as the same may be gathered from all the instru- ments taken together. And the recitals in each may be explained or corrected by a reference to any other, in the same way as if they were only several parts of one instrument. Another rule requires that the contract should be supported rather than defeated. The court cannot, however, through a de- sire that there should be a valid contract between the parties, un- SOME GENERAL RULES OF CONSTRUCTION, gOl dertake to reconcile conflicting and antagonistic expressions, of which the inconsistei^cy is so great that the meaning of the par- ties is necessarily uncertain. Nor where the language distinctly imports illegality, should they construe it in a different and a legal sense, for this would be to make a contract for the parties which they have not made themselves. But where there is room for it, the court will give a rational and equitable interpretation, which, though neither necessary nor obvious, has the advantage of being just and legal, and supposes a lawful contract which the parties may fairly be regarded as having made. So, for the same reason, all the parts of the contract will be construed in such a way as to give force and validity to ali of them, and to all of the language used, where that is possible. All legal instruments should be grammatically written, and shpuld be construed according to the rules of grammar. But this is not an absolute rule of law. On the contrary, it is so far immaterial in what part of an instrument any clause is written, that it will be read as of any place and with any context, and, if necessary, transposed, in order to give effect to the certain mean- ing and purpose of the parties. Still this will be done only when their certain and evident intent requires it. Inaccuracy or con- fusion in the arrangement of the parts and clauses of an instru- ment is, therefore, always dangerous ; because the intent may in this way be made so uncertain as not to admit of a remedy by construction. Generally, all relative words are -read as referring to the nearest antecedent. But this rule of grammar is not a rule of law, where the whole instrument shows plainly that a refer- ence was intended to an earlier antecedent. So, it is a general proposition, that where clauses are repug- nant and incompatible, the earlier prevails in deeds and other instruments among the living, if the inconsistency be not so great as to avoid the instrument for uncertainty. But in the construc- tion of wills it has been said that the latter course prevails, on the ground that it is presumed to be a subsequent thought or pur- pose of the testator, and therefore to express his last will. An inaccurate description, and even a wrong name of a per- son, will not necessarily defeat an instrument. But it is said that an error like this cannot be corrected by construction, unless there is enough beside in the instrument to identify the person, and thus to supply the means of making the correction. That 51 802 INTBBPEETATION OF CONTRACTS. is, taking the whole instrument together, there must be a rea- sonable certainty as to the person. It is also said that only those eases fall within the rule in which the description so far as it is false applies to no person, and so far as ijb is true applies only to one. But even if the name or description, where erroneous, apply to a wrong person, we think the law would permit correction of the error by construction, where the instrument, as a whole, showed certainly that it was an error, and also showed with equal certainty how the error might and should be corrected. Instruments are often used which are in part printed and in part written; that is, they are printed with blanks, which are afterwards filled up; and the question may occur, to which a preference should be given. The general answer is, to the writ- ten part. What is printed is intended to apply to large classes of contracts, and not to any one exclusively ; the blanks are left purposely, that the special statements or provisions should be in- serted, which belong to this contract and not to others, and thus discriminate this from others. And it is reasonable to suppose that the attention of the parties was more closely given to those phrases which they themselves selected, and which express the especial particulars of their own contract, than to those more general expressions which belong to all contracts of this class. But if the whole contract can be construed together, so that the written words and those printed make an intelligible contract, this construction should be adopted. Because the intention of the parties is presumed to be " alive and active throughout the whole instrument, and that no averments are anywhere inserted with- out meaning and without use. ' ' Section III. OF THE PRESUMPTIONS OF LAW. There are some general presumptions of law which may be considered as affecting the construction of contracts. Thus, it is a presumption of law that parties to a simple con- tract intended to bind not only themselves, but their personal representatives; and such parties may sue on a contract, al- though not named therein. Hence, as we have seen, executors, though not named in a contract, are liable, so far as they have assets, for the breach of a contract which was broken in the life- THE PEESUMPTIONS OF LAW. 803 time of their testator. And if the contract was not broken in his lifetime, they must not break it, but will be held to its perform- ance, unless this presumption is overcome by the nature of the contract; as where the thing to be done required the personal skill of the testator himself. So, too, if several persons stipulate for the performance of any act, without words of severalty, the presumption of law is here that they intended to bind themselves jointly. But this presumption also might be rebutted by the na- ture of the work to be done, if it were certain that separate things were to be done by separate parties, who could not join in the work. It is also a legal presumption that every grant carries with it whatever is essential to the use and enjoyment of the grant. But this rule applies more strongly to grants of real estate than to transfers of personal property. Thus, if land be granted to an- other, a right of way to the land will go with the grant. Where anything is to be done, as goods to be delivered, or the like, and no time is specified in the contract, it is then a presump- tion of law that the parties intended and agreed that the thing should be done in a reasonable time. But what is a reasonable time is a question of law for the court. They will consider all the facts and circumstances of the case in determining this, and if any facts bearing upon this point are in question it will be the province of the jury to settle those facts, although the influence of the facts when they are ascertained, upon the question of rea- sonableness of time, remains to be determined by the court. Section IV. OF THE EFFECT OF CUSTOM OK USAGE. We have already had occasion to remark, that a custom which may be regarded as appropriate to the contract and compre- hended by it, has often very great influence in the construction of its language. The general reason of this is obvious enough. If parties enter into a -contract, by virtue whereof something is to be done by one or both, and this thing is often done in their , neighborhood, or by persons of like occupation with themselves, and is always done in a certain way, it must be supposed that they intended it should be done in that way. The reason for this supposition is nearly the same as that for supposing that the com- 804 INTERPEETATION OF CONTRACTS. mon language which they use is to be taken in its common mean- ing. And the rule that the meaning and intent of the parties govern, wherever this is possible, comes in and operates. Hence an established custom may add to a contract stipulations not con- tained in it; on the ground that the parties may be supposed to have had these stipulations in their minds as a part of their agree- ment, when they put upon paper or expressed in words the other part of it. So custom may control and vary the meaning of words ; giving even to such words as those of number a sense en- tirely different from that which they commonly bear, and which indeed by the rules of language, and in ordinary eases, would be expressed by another word. This influence of custom was first admitted in reference to mercantile contracts. And indeed almost the whole of the law- merchant, if it has not grown out of custom sanctioned by courts and thus made law, has been very greatly modified in that way. For illustration of this, we may refer to the law of bills and notes, insurance, and contracts of shipping generally. And although doubts have been expressed whether it was wise or safe to permit express contracts to be controlled, or, if not controlled, affected by custom in the degree in which it seems now to be established that they may be, this operation of custom is now fixed by law, and extended to a vast variety of contracts ; and indeed to all to which its privileges properly apply. And qualified and guarded as it is, it seems to be no more than reasonable. In fact, it may be doubted whether a large portion of the common law of England and of this country rests upon any other basis than that of cus- tom. The theory has been held, that the actual foundation of most ancient usages was statute law, which the lapse of time has hidden out of sight. This is not very probable as a fact. The common law is every day adopting as rules and principles the mere usages of the community, or of those classes of the com- munity who are most conversant with the matters to which these rules relate ; and it is certain that a large proportion of the ex- isting law first acquired force in this way. ' Other facts must be considered; as how far the meaning sought to be put on the words departs from their common mean- ing as given by the dictionary, or by general use, and whether other makers of this article used these words in various senses, or used other words to express the alleged meaning. Because the THE EFFECT OF CUSTOMER USAGE. gOf) iilain question is always this: Can it be said that both parties ought to have used these words in this^ sense, and that each party had good reason to believe that the other party so understood them? Custom and usage are very often spoken of as if they were the same thing. But this is a mistake. Custom is the thing to be proved, and usage is the evidence of the custom. Whether a cus- tom exists is a question of fact. But in the proof of this fact questions of law of two kinds may arise. One, whether the evi- dence is admissible, which is to be settled by the common princi- ples of the law of evidence. The other, whether the facts stated are legally sufficient to prove a custom. If one man testified that he had done a certain thing once, and had heard that his neigh- bor had done it once, this evidence would not be given to the jury for them to draw from it the inference of custom if they saw fit, because it would be legally insufficient. But if many men testi- fied to a uniform usage within their knowledge, and were uncon- tradicted, the court would say whether this usage was sufficient in quantity and quality to establish a custom, and if they deemed it to be so, would instruct the jury, that, if they believed the wit- nesses, the custom was proved. The eases on this subject are nu- merous. But no definite rule as to the proof of custom can be drawn from them, other than that derivable from the reason on which the legal operation of custom rests ; namely, that the par- ties must be supposed to have contracted with reference to it. As a general rule, the knowledge of a custom must be brought home to a party who is to be affected by it. But if it be shown that the custom is ancient, very general and well known, it will often be a presumption of law that the party had knowledge of it ; although, if the custom appeared to be more recent, and less generally known, it might be necessary to establish by independ- ent proof the knowledge of this custom by the party. One of the most common grounds for inferring knowledge in the parties, is the fact of their previous similar dealings with each other. The custom might be so perfectly ascertained and universal, that the party's actual ignorance could not be given in proof, nor assist him in resisting a custom. If one sold goods, and the buyer being sued for the price, defended on the ground of a custom of three months' credit, the jury might be instructed that the defense was not made out unless they could not only infer from the evidence 806 INTEEPEBTATION OF C0NTEACT8. the existence of the custom, but a knowledge of it by the plaintiff. But if the buyer had given a negotiable note at three months, no ignorance of the seller would enable him to demand payment without grace, even where the days of grace were not given by statute. In. such a case, the reason of the law of custom — that the parties contracted with reference to it — seems to be lost sight of. But in fact the custom in such a case has the force of law ; an ignorance of which cannot be supposed, and, if it be proved, it neither excuses any one, nor enlarges his rights. No custom can be proved, or permitted to influence the con- struction of a contract, or vary the rights of parties, if the cus- tom itself be illegal. For this would be to permit parties to break the law because others had broken it, and then to found the rights upon their own wrong-doing. Neither would courts sanction a custom by permitting its operation upon the rights of parties, which was in itself, wholly unreasonable. In relation to ^ law, properly enacted, this in- quiry cannot be. made in a country where the judicial and legis- lative powers are properly separated. But in reference to cus- tom, which is a quasi law, and has often the effect of law, but has not its obligatory power over the court, the character of the cus- tom will be considered; and if it be altogether foolish, or mis- chievous, the court will not regard it; and if a contract exist which only such a custom can give effect to, the contract itself will be declared void. Lastly, it must be remembered that no custom, however uni- versal, or old, or known, unless it has actually passed into law, has any force over parties against their will. Hence; in the in- terpretation of contracts, it is an established rule, that no custom can be admitted which the parties have seen fit expressly to ex- clude. Thus, to refer again to the custom of allowing grace on bills and notes on time, there is no doubt that the parties may agree to waive this ; and even the statutes which have made this custom law, permit this waiver. And not only is a custom inad- missible which the parties have expressly excluded, but it is equally so if the parties have excluded it by a necessary implica- tion; as by providing tha,t the thing which the custom affects shall be done in a different way. For a custom can no more be set up against the clear intention of the parties than against their ADMISSIBILITY OF EXTHINSIC EVIDENCE. 807 express agreement ; and no usage can be incorporated into a con- tract which is inconsistent with the terms of the contract. "Where the terms of- a contract are plain, usage, even under that very contract, cannot be permitted to affect materially the construction to be placed upon it ; but when it is .ambiguous, a long-continued usage may influence the judgment of the court, by showing how the contract was understood by the parties to it. Section V. OP THE ADMISSIBILITY OF EXTRINSIC EVIDENCE IN THE INTERPRETA- TION OP WRITTEN CONTRACTS. It is very common for parties to offer evidence external to the contract in aid of the interpretation of its- language. The gen- eral rule is, that such evidence cannot be admitted to contradict or vary the terms of a valid written contract ; or, as the rule is expressed by writers on the Scotch law, "writing cannot be cut down or taken away by the testimony of witnesses." The rule is often expressed with sufficient exactness for ordinary purposes, in this way: "Evidence may be admitted to explain a written contract, but not to contradict it. ' ' There are many reasons for this rule. One is, the general preference of the law for written evidence over unwritten ; or, in other words, for the more definite and certain evidence over that which is less so; a preference which not only makes written evidence better than unwritten, but classifies that which is written. For if a negotiation be con- ducted in writing, and even if there be a distinct proposition in a letter, and a distinct assent, making a, contract, and then the par- ties reduce this contract to writing, and both execute the instru- ment, this instrument controls the letters, and they are not per- mitted to vary the force and effect of the instrument, although they may sometimes be of use in explaining its terms. Another is, the same desire to prevent fraud which gave rise to the Statute of Frauds; for as that statute requires that certain contracts shall be in writing, so this rule refuses to permit contracts which are in writing to be controlled by merely oral evidence. But the principal cause alleged in the books and cases is, that when par-, ties, after whatever conversation or preparation, at last reduce their agreement to writing, this may be looked upon as the final consummation of their negotiation, and the exact expression of 808 INTEEPEETATION OF C.ONTBACTS. their purpose. And all of their earlier agreements, though ap- parently made while it all lay in conversation, which is not now incorporated into their written contract, may be considered as in- tentionally rejected. The parties write the contract when they are ready to dp so, for the very purpose of including all that they have finally agreed upon, and excluding everything else, and making this certain and permanent. And if every written con- tract were held subject to enlargement, or other alteration, ac- cording to the testimony which might be offered on one side or the other as to previous intention, or collateral facts, it would obviously be of no use to reduce a contract to writing, or to at- tempt to give it certainty and fixedness in any way. It is nevertheless certain, that some evidence from without must be admissible in- the explanation or interpretation of every contract. If the agreement be, that one party shall convey to the other, for a certain price, a certain parcel of land, it is only by extrinsic evidence that the persons can be identified who claim or are alleged to be parties, and that the parcel of land can be ascertained. It may be described by bounds, but the question then comes, where are the streets, or roads, or neighbors, or mon- uments referred to in the description; and it may sometimes happen that much evidence is necessary to identify these persons or things. Hence, we may say, as the general rule, that as to the parties or the subject-matter of a contract, extrinsic evidence may and must be received and used to make them certain, if nec- essary for that purpose. But as to the terms, conditions, and limitations of the agreement, the written contract must speak ex- clusively for itself. Hence, too, a false description of person or thing has no effect in defeating a contract, if the error can be distinctly shown and perfectly corrected, by other matter in the instrument. A written contract, of which the memorandum satisfies the statute of frauds, is open to evidence to show that certain essen- tials of the actual contract are not in the memorandum, if the effect of the evidence is, not to vary the written contract, but to show that no such contract was ever made. Recitals in an instrument may sometimes be qualified or con- tradicted by extrinsic evidence. By "recitals" are meant the narrative of the circumstances or purposes which have induced the parties to make the contract. So the date of an instrument, ADMISSIBILITY OF EXTRINSIC EVIDENCE. 809 or if there be no date, the time when it was to take effect, which may be other than the day of delivery ; or the amount of the con- sideration paid, may be varied by testimony ; but if a note given for land is sued, the promisor cannot show in defence that the deed described a less quantity of land than had been stipulated. And an instrument may be shown to be void and without legal existence or efficacy, as for want of consideration, or for fraud, or duress, or any incapacity of the parties, or any illegality in the agreement. In the same way, extrinsic evidence may show a total discharge of the obligations of the contract ; or a new agree- ment substituted for the former, which it sets aside ; or that the time when, or the place where, certain things were to be done, had been changed by the parties ; or that a new contract, which was additional and supplementary to the original contract, had been made, or that damages had been waived, or that a new considera- tion, in addition to the one mentioned, has been given, if it be not adverse to that named in the deed. And if no consideration be named, one may be proved. We have already said that a receipt for inoney is peculiarly open to evidence. It is only prima facie evidence either that the sum stated has been paid, or that any sum whatever was paid. ' It is in fact not regarded as a contract; and hardly as an instru- ment at all, and has but little more force than the oral admission of the party receiving. But this is true only of a simple receipt. It often happens that a paper which contains a receipt, or recites the receiving of money or of goods, contains also terms, condi- tions, and agreements, or assignments. Such an instrument, as to everything but the receipt, is no more to be affected by ex- ' trinsic evidence than if it did not contain the receipt ; but as to the receipt itself, it may be varied or contradicted by extrinsic testimony, in the same manner as if it contained nothing else. Lastly, no contract will be enforced, as a contract, if it have no plain and natural or legal meaning, by itself ; and if admissible, extrinsic evidence can only show that the intention of the parties was one which their words do not express. But the supposed contract being set aside for such reasons as these, the parties will be remitted to their original rights and obligations. 810 LEGAL RIGHTS AND OBLIGATIONS. OP FARMEES. CHAPTER XLIII. LEGAL RIGHTS AND OBLIGATIONS 07 FABHEBS. Section I. HIS TITLE TO HIS FARM. This right may arise from and rest upon possession, inherit- ance, purchase, or hiring. 1. Possession. — If the farmer or they from whom he inherits have possessed the land without disturbance or adverse claim for a suiBcient number of years, it is his by what is called prescrip- tion. The meaning of this is, that the law does not allow any adverse claimant to set up an old and stale claim to the farm, and on the strength of it deprive a man of property which he has held in peace for a long period. This law was founded upon the prob- ability that they who have held quiet possession of land for a long time must have held it by right ; and that no one would be likely, to lie by and make no claim to the land if he had a good title to it. Ages ago, the period required to give title by mere lapse of time was a very long one. Gradually it became shorter, and is now in this country quite short. Exceptions to the rule are always made in favor of those who by reason of absence, in- fancy, or imbecility have been unable to assert their claims — ^the principle being that no one should lose his land by suffering an- other to possess it quietly for a long time but he who could have made claim, and was therefore properly punished for his neglect. In Chapter XXIII, on limitations, and in the abstract of the statutes of limitations, beginning on page 275, the reader will find stated the periods of time within which, in the several, States, an action must be brought to recover real estate — that is, land. If brought afterwards, the lapse of time is a sufficient defense, un- less the plaintiff who seeks to recover the land can justify his delay in bringing his suit by showing that he or she was an in- fant, or absent from the State, or imbecile, or a married woman, or under some other disability; and that he or she brought his or her action within the prescribed period, if that began after his disability was removed. HIS TITLE TO HIS FARM. 811 2. Inheritance. — In this country there is not only an entire absence of the right of primogeniture, but no other difference be- tween the inheritance of real estate or land, and of personal property in goods and chattels, than that which arises necessarily from the difference in the nature of these two kinds of property. We retain, generally, the phraseology of the English law. The word ' ' inheritance ' ' applies in law only to real property, and the statutes by which it is determined how such property passes to the issue or relatives of the deceased, are commonly called stat- utes of inheritance. Whereas those which determine how and where the personal property shall go are called statutes of dis- tribution. But in all the States these two statutes are nearly alike ; that is to s'ay, the persons entitled to the real estate of a deceased man are almost always those to whom the personal prop- erty would go as to the next of kin to the deceased. A person who takes a farm by inheritance (using the word in its common meaning) , must take it either under the will of the deceased, or by force of law as the heir of the deceased. On this subject we refer to what we have said in our chapters on wills and on executors and administrators. 3. Purchase. — In this country land can only be transferred by Deeds. If a man makes a bargain to buy a farm and is so unwise as to take possession without having a sufficient deed duly executed, his bargain gives him no title to his farm, which still remains the' property of the man who agreed to sell it. But if the bargain be in writing and sufficiently distinct, the law may help him and compel the owner to carry his bargain into effect by giving a suffi- cient deed. The wiser way, if for any reason the parties are not ready to give and receive a deed, is for the intended buyer to take from the inteiided seller a bond for a deed, of which he will find sev- eral forms. See forms 28, 30, and 31, in this book. For offers made on time, see the third section of the fifth chapter. For the law of deeds we refer to our chapter on deeds. In that chapter will also be found what it is most important to know, re- member, and practice — that is the legal requirements concerning the signing, sealing, acknowledgment, delivery, and recording of 812 LEGAL EIGHTS AND OBLIGATIONS OF FABMEES. deeds. Ignorance or neglect of any of these matters may destroy a man 's title to his farm and deprive him of it. It is now so common to sell a farm at auction that it is well to give some of the rules of law about sales at auction. 4. Sales of Land at Auction. — Every bid by any one present is an offer by him. ' It may be withdrawn before the hammer falls ; but if not withdrawn, then the offer is accepted and the bargain made. If a farm be sold, the plan or description offered at the sale must give true information, or the purctiaser is not bound to take the estate. If the descriptions are written or printed and circu- lated among the bidders, they cannot be contradicted by verbal declarations made by the auctioneer at the time of the sale. If land is sold in several lots, and each is bought by itself, there is a separate bargain for each lot ; and therefore if the seller can inake good title to only one or more of the lots, the buyer must take them though he cannot have the other lots he bought ; unless he can show that the buying of the whole was a valid part of the inducement or motive for buying any, and that the part he could have would not answer his purpose unless he could have the other lots. "Whether by-bidders for the seller authorize a purchaser to abandon a sale has been much disputed. Of course any fraud- ulent act of the seller would have that effect ; but it seems to be law that by-bidding is not necessarily fraudulent, if the seller wishes only to avoid sacrifice. But the honest way would be to put the land up at a price. And if the seller or auctioneer de- clares at the sale that there is no by-bidding, or makes any decla- ratien to that effect, and then employs by -bidding, the buyer is not bound to take the land. An agreement among many persons that one should bid ior all is not necessarily illegal. An auctioneer of real or personal property who does not give the name of the owner is himself liable to the buyer for the com- pletion of the sale, and for any warranty he makes ; and so he is if he sold and warranted without authority. But if he has au- thority from the owner and states who the owner is, he puts the liability for the sale and the warranty upon the owner. WHAT ONE TAKES BY THE DEED OF A FARM. 813 Section II. WHAT ONE TAKES BY THE DEED OP A FARM. 1. BouNDAEiBS AND DESCRIPTIONS. — The first que&tion is what land does he take ; and this question is answered by the bound- aries. These cannot be stated too carefully, and cases where diffi- culties and law-suits have arisen from their inaccuracy or insuffi- ciency are very frequent. One rule to be remembered is, that evidence of what the par- ties meant and intended cannot be used to contradict what they have said in writing. See page 44. This rule sometimes works great injustice ; but the reason of it is obvious, for if, after par- ties had agreed upon a matter, and put it in writing in the most formal manner, either of them could put the writing aside by eivi- dence that he meant something else, nobody would be safe in his contracts or secure in his rights. But evidence is receivable to show that either of the parties used language to defraud the other ; for fraud can always be ex- posed, and whenever shown gives the defrauded party the right to avoid the contract. Words and conversation about the farm amount to nothing in law. The intending seller may say how much stock it will feed, or what crops it will produce, and if he deceives the buyer this man has no remedy, for he must judge of these matters for himself, or get disinterested advice. But if he should state falsely and fraudulently that the farm had in fact fed so much stock or pro- duced such crops, the deceived buyer would have his remedy, and' could avoid the sale if he thought fit. Evidence is always admissible to show what the contract or in- strument means, as who the parties are, or where the farm or land is. The rule is, that evidence cannot contradict but may ex- plain a written contract. If a deed says John Smith sells the land, evidence cannot show that it was Peter Robinson ; but if there be John Smith the father and John Smith the son, it can show which of them is meant. So the boundaries may be obscure or imcertain; and while evidence cannot put new boundaries into a deed, it may make those which are there certain. So boundaries may be incon- sistent. The farm may be said to contain so many acres, and to 814 LEGAL BIGHTS AND OBLIGATIONS OF FARMERS. measure five hundred rods from such a boundary to such a bound- ary in a northwest direction. But there may be no boundary in that direction, and the distance from one bound to the other may be four hundred and six hundred rods, in a north-northwest di- rection, and the farm may contain more or fewer acres than the description. In such a case evidence may show, if it can with reasonable certainty, just what the bounds actually are, as cer- tain trees, or posts, or rocks. And if the boundaries are made certain they will control distances, directions, and contents, un- less the discrepancies are so great as to show either fraud on one part or the other, or that the parties labored under some mistake, and could not have agreed in their minds one lo sell and the other to buy the same farm ; for this agreement of minds is in law the very essence of a contract. If the number of acres enters into the description, it is com- mon to add, "be the same more or less." This guards effectually against any inaccuracy. But without it, the failure in the num- be*r of acres would not avoid the deed, unless it was so large as, with other circumstances, to show fraud. If there be ever so much fraud, the fraudulent party cannot take advantage of it, and only the defrauded party can. If the seller says the farm contains so many acres when he knows it does not, and then points out the boundaries accurately and truly, the buyer is with- out redress, because he has the means of correcting the misrepre- sentation. 2. Contents. — The rule of law is, and for many centuries has been, that whosoever owns land owns all there is above it and all there is below it ; or as the old phrase ran, everything up to the sky and everything down to the center. Of course all buildings and everything fairly belonging to the buildings go with the farm. But then comes the question, what does belong to them ? The answer is given by the rules of law as to fixtures. 3. Fixtures. — They are everything which is fixed or fastened to the land. And if anything be fastened to the land, whatever is fastened to that thing is fastened to the land. Thus : A house rests on a stone foundations sunk into the ground ; but the doors and windows of the house are fastened to the house, and there- fore they are fastened to the land ; and the blinds belonging to the windows and the locks and keys to the door, though moveable WHAT ONE TAKES BY THE DEED OF A FAEM. 815 and for the time removed from them, and some other things of like kind not fastened to the house, are fixtures, and go with the house as that goes with the land. The cases are almost innumera- ble which have risen upon the question wfiether this or that thing is a fixture. Before attempting to show how this question has been answered, it may be well to state that many things are fix- tures when a house is sold, so that the seller of the house cannot retain them, which would not be fixtures to the hirer of the house if he put them in ; and when his lease expired he could, there- fore, take them away with him. In general, whatever the owner of the farm fastens to the ground or to a building, or uses constantly with it as an appur- tenance to it, is a fixture, and he sells it when he sells the farm. But whatever a hirer buys or makes to use with the farm,, and fastens to the ground or building, if he fastens it in such a way that he can remove it and leave the land or building in as good order and condition as before, he may remove and take away. Of course the parties, whether buyer or seller, or hirer or lessor, may make what bargaiiis they like about any fixture. The law of fixtures comes in only where they make no bargain. A. Things held not ta be removable by an outgoing tenant. — ^arns and sheds fixed in the ground, statues erected on a per- manent foundation as an ornEiment to the ground, chimney-piece not ornamental if it be fastened to the wall, closets affixed to the house, conservatory substantially affixed, fuel-house, hearths, hedges, pigeon-house, pump-house, wagon-house, box-borders not belonging to a gardener by trade, fruit trees not belong to a nur- seryman. These last two illustrate a rule of much force and fre- quent application, namely : that a tenant of land which he hires to carry on a business there may add things as a part of his busi- ness and take them away, which he would be obliged to leave if they were not connected with his business. B. Things held to be removable by an outgoing tenant. — Barns, stables, out-houses and sheds resting on logs or rollers, because this showed them to be affixed to the land only temporarily. Or- namental chimney-pieces, fire-frame, furnaces, cooking stove, gates, looking-glasses, trade fixtures generally. There are two rules to be remembered, of. almost universal force. One is that the outgoing tenant who has attached to the land or placed upon the premises anything which he cannot re- 816 LEGAL RIGHTS AJSTD OBLIGATIONS OF FARMERS. move and leave the buildings or the land in as good condition as before, must leave that thing behind him. The other is that an owner of land who attaches to his land or building almost any of' the things which a tenant may remove, when he sells the land or building sells that thing, unless he ex- pressly reserves a right to remove it. 4. Manuee. — If a man sells his farm he sells with the farm all the manure upon it, whether it be spread on the fields or is heaped up in the barn-yard or cellar. If he lets his farm to another, the hirer takes the manure; un- less the lessor reserves the right to take it away, and when the lease expires and the land returns to the owner, the manure goes witL the land. The owner of a farm may undoubtedly, before he sells it, re- move the manure or sell it separately, if he does this openly and not secretly, and not in such a way as to deceive and cheat the buyer ,of the farm. What the right of the outgoing tenant is may not be so certain. But it may now be considered as the law of this country that a tenant who has occupied a farm on a lease, and whose lease is about to expire, cannot sell or remove the manure, but it goes with the farm to the owner. 5. Rocks, Stones, Soil. — These belong wholly to the owner of* the land, and whoever buys it buys an absolute right to them. No man can take away a pebble or a spoonful of earth without a breach of the law. This is obvious, for if a man could take one spoonful he could take many, and that might be a cartload. And if he might take a pebble, he might take the rocks. These must belong to the owner of the land. 6. Adjoining Eoads. — If one 's farm is bounded by a road, and there are no restrictions or reservations in the deeds through which he derives title, he owns to the middle of the road, subject only to the right of the public to use it. as a road, or, as it is called, their right of way ; subject also to whatever rights the law of the State gives to surveyors of roads and highways, or other officers. Thus, he owns the grass on the road, and may take stone or gravel from the road as freely as from any part of the farm, provided he fills the vacant places with equally good road material and leaves the road in. as good condition as before. "When the owner of a farm owns to the middle of the adjoining road he has all the rights to the land consistent with the public TBESPASSING ON THE FARM. 817 right of way. He may plant trees on the sidewalk if permitted by proper authority, or unless they obstruct the use of the road, and they remain his property. Officers charged with the care of roads may remove them, but individuals are liable for their wan- ton destruction. If one fastens his horse to the trees, and the horse injures the trees, the man who tied him there is liable. The owner of a farm cannot put any permanent structure on an adjoining road, nor keep his carts and sleds there nor pile his wood there, and if he does he is liable to anyone who suffers an injury from running against them while traveling over the high- way. 7. TEEES.^Of course the owner of a farm buys and owns all the trees upon it if at the time of the sale they were blown down and lie on the ground, but not if they have been cut for sale or fuel. There have been some cases in courts turning upon the ques- tion what are his rights if his trees hang over his neighbor 's fields, and what are his neighbor 's rights. In the first place his neighbor owns his land absolutely, and all that is above and below it. Therefore he may cut away every bough and twig which comes over his land. And he may dig down close to the line of his land and cut away every root that comes into his land. But how is it as to the fruit which grows upon their branches?* This fruit, like the branches themselves, belongs to , the owner of the tree. His neighbor may cut the branches away, and they may fall on his ground, but he has no right to them. The original owner loses no property in them, but has a right to enter peaceably upon the land where they lie and take the fallen boughs away. So he retains his property in the fruit, and may enter upon the land where it lies, and gather it and take it away. Such, we think, are the conclusions to be derived from the best adjudication and the best reasoning on the subject. ^ Section III. TRESPASSING ON THE FARM. 1. Who is a Trespasser. — The right of an owner of a farm to its entire possession is so absolute in law that nobody can set foot upon it, by day or night, against the owner's will, without com- mitting what the law calls a trespass, or a breach of the law for ■which he is answerable. A man's house, says the old maxim, is 52 818 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. his castle, as effectually protected by the law as a castle by its walls and battlements. If a stranger goes at proper hours only upon the roads and paths of the farm, although they are not pub- lic, they are so far open that one who walks on them without evil design and without doing harm, and without express prohibition of some kind, would be held to have in some sort the owner 's per- mission. B.ut one who walks on the grass, or perhaps anywhere but on the roads or paths, is a trespasser, if without express per- mission. 2. Of the eight of the Faemer to oedi,^ a Teespassee off FROM HIS Land. — His right to do this is unquestionable. But suppose that he gives such an order and the trespasser will not go. "What can the farmer do? Then the owner of the farm, or of any lot of land, however small, has an equally unquestionable right to put him off forcibly if the trespasser will not go peacea- bly. But how much force may the owner use? The answer to this question is distinct and certain so far as the law goes, but there may be some difficulty in the actual application of the rule. The rule of law is, that the owner of the land may, in order to expel the trespasser, "put his hands gently upon him." But then the question comes what is "gently." This question has been through English courts for centuries. They have come to a conclusion which the American courts generally adopt. This con- clusion is that .the owner may use whatever force is necessary to expel the trespasser, provided on the one hand that he does him no grievous bodily injury, and on the other that he uses no more force than the trespasser makes necessary. For example : A goes into B 's house, or barn, or on his land, and persists in remaining there, although B orders him away. B may lay hold of him, may summon help, and with as much help as he needs seize him, and if need be bind him hand and foot, carry him bodily off his premises, and then unbind him. Always on this condition, that he useS no more violence than is requisite to remove him, and that he avoids such measures as would do serious or permanent harm or endanger life or limb. But while B does only what is needed to remove A, and does this with suffi- cient care, if A by some accident is injured, B is not responsible, for it is A's own fault. 3. Responsibility to Trespassers. — The mere fact that one is a trespasser does not, however, deprive him of all protection. If FARM WAYS.— WATER RIGHTS. 819 ' lie falls into a pit or excavation made by the owner of the land for a lawful purpose, the owner is not responsible. But the owner cannot wantonly or intentionally expose him to danger, as by setting a trap or a spring gun. Nor can he leave an animal which he knows to be vicious, as^ for instance, a savage bull, at large in his pasture, and he would be responsible for any injury caused by such an animal to a person entering or crossing the pasture without knowledge that a dangerous animal was there. Section IV. FARM-WAYS. Of course an owner of a farm maj^ make or unmake his own roads or ways at his pleasure. His neighbor has nothing to do with them, unless the owner give him leave to use them, and A right of way must be conveyed by a deed, in like manner as the land itself. If, indeed, his neighbor claims a right to use one of them, and under that claim uses it as he would his own for more than twenty years without the permission of the owner, such neighbor might acquire a right of way by prescription. And if such rights of way become attached to a farm by prescription, whoever buys a farm buys with it those rights of way. But such a case would not often occur. If a farmer sells a lot surrounded by the farm, he sells with it a right to pass to and from the lot. But the seller may mark out a sufficient passage to and from the land, and over that the buyer must go. And when a public highway is laid out which gives ac- cess to the lot, the buyer of it loses his right of passage over the seller's land, because this right is no longer necessary to his use and occupation of the lot. Section V. WATER RIGHTS. The owner of a farm owns the ponds upon his farm and the running streams, so far as to make a reasonable use of them for his land,. stock, or house. He may change the course of a stream on his own land, but he must not divert it from his neighbor's land, nor can he lead it into his neighbor's land elsewhere than in its natural channel. He may dam it up so as to make ponds on his own land, but cannot overflow his neighbor 's land except for ■ 820 LEGAL EIGHTS AND CDLIGATIONS OF FARMERS. mill purposes under the local laws regulating such use of the water. If he does, his neighbor may enter his farm and remove the dam so far as to relieve his land from the overflow; and if the stream be obstructed by stones or rubbish on his neighbor's farm, he may go on his neighbor 's land to remove the obstruction, and may put this on the banks of the stream. He may dig any- where on his own land, even if he cuts off the springs which water his neighbor's land or supply his well or pond, for his neighbor has no property or legal interest in the waters which flow or stand below the surface of the land. As the owner of a farm owns a stream or brook which runs through his farm, so if a farm bounds on a running stream that is not navigable he owns to what is called the thread of the stream, which is the middle of the main current, and may be on one side or the other of the middle of the stream. Section VI. FIRE. Thpbe is a principle of law applicable in a reasonable way to everyone, and to the ownership and use of all property. It is this: "A man must use what is his own so as not to injure his neighbor. ' ' This rule applies distinctly to a man 's right to kindle fire on his land. A man who owns any land, much or little, may kindle what fire' he will upon it and burn what he will in the fire. But he is always responsible for the damage his fire does if he were negligent in any way about it. It may be that his neigh- bor's fences or buildings are so near him that he could not build a fire upon any part of his land without endangering his neigh- bor's property. Then it might be negligent in him to build a fire to burn brush anywhere, or he may build it of partieularlj^ in- flammable and therefore dangerous material, or in a very dry time, or in a high wind, or too large a fire, or without watching it with the care that such a fire required to be reasonably safe. If he were sued for the damage it would be for a jury to determine, under the direction of the court as to the law, whether he was liable, and if so for how much. The court would instruct the jury that the builder of the fire was not liable if he built it on his own land, unless there were circumstances of some kind which satisfied them that he had been in some way negligent, and that FIRE.— GAME ANIMALS. 821 the damage was directly due to his negligence. Then would come the question, which is often very difficult because it must be an- swered by a well established rule, applicable not only to fire but in a great variety of cases, but which it is often very difficult to apply. This rule is that a wrong-doer is always answerable for all the immediate or direct effects of his wrong-doing, but not further. If we apply this rule to a case of fire, the man who built one 'or tended one negligently would be answerable to his neigh- bor not only for a shed that caught, but for his dwelling-house^ though that stood at some distance, if it caught fire from the shed. But he would not be answerable to a more distant person whose house caught fire from the first house, The reason of the rule is obvious. If the builder of the fire were answerable fx)r the second house, why not for the third which caught from the sec- ond, and why not for a whole city ? It is plain that there must be some limit to a wrong-doer's liability for the consequences of his wrong-doing. It must stop somewhere. If the man whose house or store is burned down becomes thereby insolvent, no one would say that the man who set the fire, however willfully or negligently, should be answerable to this insolvent's creditors for what they lose by him. As this man's liability must stop some- where, the law says it stops with the direct and immediate conse- quences of his wrong-doing, leaving it to a court and jury to de- termine what damages were direct and immediate, and what were only remote and consequential. • Farm buildings are sometimes destroyed by fire caught from locomotives. The railroad companies are of course liable for all damages caused thereby if the fire arose from any fault of theirs or of persons employed by them. It would be the fault of the companies if they lieglected to use known and entirely practica- ble precautions. Whether they would be answerable if wholly free from negligence and default cannot be answered from any ascertained and uniform law. Generally we think they would be answerable. In some States this is provided by statute. Section VII. GAME ANIMALS. We have in this country no game laws but such as are intended to preserve from wasteful destruction animals valuable for food 822 LEGAL BIGHTS AND OBLIGATIONS OP FAEMEES. or otherwise useful. It is a pity we have not more laws for this purpose, and that they are not better observed. Game animals which existed in great abundance almost everywhere in this coiHitry some years ago are now scarce everywhere, and in some regions destroyed, by the indiscriminate slaughter which has long prevailed. A wild animal, whether beast, bird, or fish, belongs to nobody, and everyone may catch or kill it who csin. But here again comes this question of the right to go upon the land. The wild birds on my farm are not mine. I have no better right to shoot or snare them than another. But no man has any more right to come on my land without my permission, to snare or shoot them, than for any other purpose. That is to say, he has no right at all. If a man stands in a roa:d adjoining my farm and shoots a bird which is coming on my land I cannot say that he does me anj- wrong. But if the bird falls over the line he has no right to step a foot on my land to get the bird, and if he does so he is a tres- passer. It is common in some parts of our country to see signboards set up on the roadside, giving notice "no shooting allowed on these premises." The only practical meaning or effect of such notices is, that while one who walks peacefully over the land will not be prosecuted, one who shoots upon the land will be. But he cannot be prosecuted for shooting there or for killing wild ani- mals there, but for being there without leave, that is, for tres- passing on the land. So the owner of the farm does not own the fish in his ponds or streams until he catches them, but no stranger has any right to come over his land to his grounds. If such ponds or streams reach a highway any man may stand in the highway and fish for them. In many of the States, however, statutes have now been enacted protecting the owner 's rights in these respects. An animal that was originally wild, after it is caught and tamed is, with its progeny, as much property as a domestic ani- mal. Section VIII. DOMESTIC ANIMALS. They are as much the property of their owner as anything else which he owns. A farmer has certain rights to them and certain liabilities for them. DOMESTIC ANIMALS. 823 No one has a right to kill or injure them. If his neighbor's cattle trespass on his land he may impound them, being very careful to follow exactly the requirements of the law, for his ig- norance or carelessness here may get him into trouble. Perhaps the difficulty or danger of making use of a remedy which may so easily be mistaken is one cause why impounding is not now so often resorted to as formerly. Byt the farmer on whose land cat- tle trespass may turn them into the road to go where they will. A kind regard for his neighbor woul-d prompt him to give his neighbor such information as would enable him to recover his cattle, unless, indeed, they were notoriously breachy and their owner had-been warned often enough. But one who turns them from his own land into the road is not bound to give this notice. For everyone who owns cattle is bound to keep them at home or suffer the consequences. So it would be as to sheep, goats, swine, etc. As to hens, they cannot be impounded. Of course they can be driven away, but they must not be shot, even if their dead bodies were returned to their owners. It may be doubted, however, whether a jury — who determine all questions of damages in actions of trespass — would give much damage if their owner, who was in the habit of letting them get their food in his neighbor's garden, brought an action when their dead bodies were brought to him. The owner of domestic animals is liable for any damage they cause, and one whose fields they break into may sue for the harm they do. If he turns his oxen or other animals loose into the public high- way, and there they injure anyone in person or property, he is answerable. Nor is it any defense that he did not know that they were particularly dangerous in disposition, nor is it any defense that the animals were not so, because he ought to have kept them at home. Whether this applies to hens the law has not said that we know of, but it has said so very decidedly as to all four-footed animals, including one of the most troublesome — dogs. As to other ani- mals it is a general rule that the owner of an animal that is kept at home and there injures a person, is not liable unless it can be shown that he had good reason to know that his animal was mis- chievous and should be kept in such a way that he would be harmless. But all dogs are mischievou-s by their very nature,' and 824 LEGAL BIGHTS AND OBLIGATIONS OF FARMERS. their owner is liable for any injury they do arid its direct conse- quences. Anyone may kill any dog who runs at him in the public highway or on his own land in a threatening way, or if he is wounding or chasing cattle or sheep in his own pastures. In States requiring that dogs should be licensed, if they are not li- censed they are outlawed, and may be killed anywhere by any person who is where he has a right to be. Section IX. SALE WITH WARRANTY OF ANIMALS, OP SEEDS, AND OF FERTILIZERS, In our chapter on sales, section 4, we treat of sales with war- ranty. "We would add here some statements of the law which have an especial reference to farmers. 1. Of Animals. — Farmers often buy and often sell animals, and it is important to know when the sale is with warra;nty and when it is not. This is sometimes a difficult question. If the word warranty is used there is no question. But this word is not essential, and if it is not used there may still be a question whether there is a warranty. There is one rule stated in our chapter on sales of frequent importance. It is that if anything be bought for a special purpose and this purpose is made known to the seller, it is considered in law that the thing is sold with a warranty that it is fit for that purpose. This rule has been ap- plied to the sale of a horse without express warranty. Mere statements or declarations in circulars or advertisements, or those made in the course of conversation, would not amount to a warranty even if the buyer relied upon them and was deceived by them. But the law seeks to check the fraud which is often perpetrated in this way by the rule that, if the representations were made in the negotiation for the sale and formed a part of it, if they were intended to cause the sal.e and did help to cause it, then these representations would be a warranty in law with all the effects of a warranty, even if the seller made them honestly. The warranty may be limited either as to its application or as to time. For example, a horse may be sold with warranty against lameness or against glanders, and then there would be no war- ranty against anything else. Or he may be sold with warranty to last only twenty -four hours, as is frequently said at sales of horses by auction, Then the horse must be returned for unsound- SALE WITH WAEEANTY OP ANIMALS, SEEDS, ETC. 825 ness or any other defect, or a claim be made for a breach of war- ranty, within twenty-four hours after the sale. 2. Of Seeds. — Not only farmers but everyone who has a lot of ground no bigger than a table-cloth, or even a dozen flower pots in which he tries to grow flowers or fruit, knows what an annoy- ance it is to find the seeds he bought and sowed different from what they were bought for, or lifeless or worthless, and that sea- son 's cultivation lost. Only a farmer knows the extent of the loss which he may suffer from this cause. And here the law comes to his aid, and if farmers generally knew the remedy in their power and applied it generally, it might be hoped that this fraud might be lessened or punished. The rule that anything sold for a special purpose is sold with a warranty that it is fit for that purpose applies here. And it has been decided in some of our States, and we think would now be in all of them, that if a buyer asks a seller for seed of a particular sort or variety and he sells him seed as good seed of that particular sort or variety, and it turns out to be not of that sort or variety but of some other, or dead and worthless, the seller is liable to the buyer not merely to the extent of the price paid for the seed, but for all the direct damage which he may have suffered therefrom, as the cost of pre- paring the field for the seed or the difference in value between the crop which he raised and the crop which would, with reasona- ble probability, have been raised upon the field if the seed sown had been what it was sold for. And the seller will be thus liable without any express warranty, even if he had been honest and had bought the seed aS that. which he sold it for, and believed it to be that, and the fraud or mistake was not his own but the man's from whom he bought it. "We have no doubt this rule would be applied in the same way where one who bought young grafted fruit-trees as of a particu- lar variety, and they were sold expressly as such, was deceived and injured in a similar way. 3. Of Fertilizers. — A great deal of fraud has been practiced in the sale of fertilizers. < This is now much diminished by the better knowledge of the subject possessed by farmers and gar- deners, and also by the laws of some of the States. It would al- ways be safer for the buyer to insist on a warranty. But this should not be a warranty of the general quality and character of the article, for such a warranty would be of little practical use 826 LEGAL BIGHTS AND OBLIGATIONS OF FAKMBBS. except in extreme eases. The warranty should be as to the in- gredients of which the article consists, and as to the percentage quantity of these. If it be a chemical fertilizer this is easily ascertained by a chemist. The most essential of these ingredients are phosphorus, nitrogen, and potash. These elements exist in artificial fertilizers under different forms. When the amount of each of them in a hundred weight of the article is known to the buyer, it is easy for him to acquire the knowledge necessary to judge of the efSeacy and value of the fertilizer. Section X. HIRING OF HELP. 1. Rights and Duties op Help. — In England the law of mas- ter and servant some generations ago was strict, nor has it lost all this character yet. Our fathers brought over to this country much of this law, but it has entirely lost all its force in all our States. Now the relation of the hirer and the hired is purely one of contract. The hired man agrees to sell so much of his time, labor, or skill to the hirer, and the hirer agrees to pay so much money for what he buys. It is a contract of help and of payment for help, and both parties are held to their contract, and neither beyond it. In the first pliace, both parties may make just such a bargain as they like. They may make a complete bargain concerning all items, or a partial one, or none at all. In the next place, if a man works for a 'farmer with a partial bargain, or no bargain at all, but at the farmer's request or with his knowledge and acceptance, the law comes in and completes the bargain, or makes one for the parties. It does this on the principle that the working-man undertakes. to do his work rea- sonably well, or according to any prevailing and acknowledged custom as to time and manner. And then that the farmer is bound to pay him a fair and reasonable price, measured by the custom of the time and place, if there is one applicable to the case, and by the judgment of the jury before whom the cas6 comes. A much more difficult question arises when a man who is hired to work on certain terms, for a certain time, works a part of the time as he ought to and then leaves his work and his employer. HIRING OF HELP. 827 Can he recover from his employer paj^raent for the work that he has done ? There is some conflict in the law about this — that is, in the decisions of the courts on this question — and therefore some uncertainty as to the law. This difficulty springs from a rule of law relating to what is called "entirety of contract," which rule is, that if a party to a contract in which he engages to do one whole thing does only a part of it, he cannot claim pay- ment for that part. In most cases this is perfectly reasonable. If a man agrees to sell a farm of a hundred acres for the price of $10,000, he cannot say, I have concluded to sell only half my farm, and you, must give me for that $5,000. But where the whole thing consists of divisible parts, and to each part a propor- tionate part of the money can be applied, the rule is of course modified. Thus if A agrees to sell to B, and B to buy of A, one thousand bushels of potatoes of a certain quality at one dollar a bushel, if A delivers to B five hundred bushels and refuses to de- liver the rest, B can say, I want my thousand bushels or none, and may then return to A the five hundred bushels received, and A has no claim on him. But he may choose to keep the potatoes received, and then he must pay for them the price agreed upon, and so he must if he has sold the five hundred bushels and cannot deliver them. But, on the other hand, he has a valid claim against A for anything he may lose by A's failure to deliver him that other five hundred. If, for instance, potatoes have risen in value to one dollar and fifty cents a bushel, B has lost by not re- ceiving that five hundred bushels two hundred and fifty dollars, and may deduct this from what he has to pay. If the same rule were applied to the case of a man who at the beginning of the year engaged to work for all that year at fifteen dollars a month, and who worked for five months and then left iat the beginning of the hay-making season, and then wages were at thirty dollars a month, the hirer would pay him fifteen dollars a month for the time he worked, deducting therefrom whatever he lost by the necessity of paying higher wages, and whatever he lost otherwise by the hired man's failure to perform his contract. Such is the view taken of the question by some eminent .iudges. But the greater part of our courts apply the rule strictly. They hold that if a hired man engaged foi- a year, leaves without sufficient cause at the end of the eleventh month, he forfeits all his wages and has no claim against the hirer for any part of them. All 828 LEGAL RIGHTS AND OBLIGATIONS OF FAEMBKS. courts agree that if the hired man leaves because of insufficient food, ill-treatment by the hirer, disabling sickness, or other suffi- cient cause, the hirei" is bound to pay him for the time he worked. It may be- added that it is important for the farmer to know and regard the rules pointed out in Chapter XII on the statute of frauds, especially in section 3. 2. Liability of the Farmer for the Wrong-doin® of his Help. — This liability rests upon an ancient rule of law, "What a man does by another he does by himself. ' ' Thus if a farmer ordered his hired man to steal his neighbor 's sheep or wood, the hired man would be held as a thief, and the hirer would be re- sponsible also. But the hirer would not be responsible for the thefts of his help without his order or assent. All this is plain enough. The difficulty comes afterwards. It comes from the ex- tension of the rule which makes an employer responsible for the negligence or ill-doing of one employed by him while actually engaged in doing what he is lawfully employed to doi The cases on this subject are numerous and some of them severe. Thus, if a farmer sets his help to cutting his wood and tells him distinctly where his line is, and the man forgets or mistakes and goes be- yond that li^e and cuts his neighbor's wood, the farmer is re- sponsible. If the hirer directs his help to build a fire in a safe place to burn up his, rubbish, and charges him to take thorough care of it, and the man goes to sleep and lets the fire run into his neighbor's land, the farmer is responsible for all that this fire destroys. Section XI. HIRING OF A FARM. We have considered the ease of purchasing a farm. The great majority of farmers own their farmg. But there are many ex- ceptions. A man may hire a farm for a term of years, paying rent, or on shares, or on a tenancy which may be put an end to at the will of either party. 1. Hiring by Lease. — In our chapter on leases we have given the general rules and principles governing leases, together with a variety of forms. We will now give some further rules and offer some suggestions upon points which it may be useful for a farmer to know and understand. HIEING OF A FARM. §29 Any general description will suffice to put the tenant in pos- session of the land intended to be hired, if it be capable of dis- tinct ascertainment and identification. And for this purpose certain words in common use, such as farm, land, house, field, wood-land, and the like, would be held to have a wide meaning. When such general and comprehensive terms are employed, all such things as are usually comprehended within their meaning will pass to the hirer by the lease, unless the language of the lease or the circumstances of the case show plainly that the intention of the parties was different. And inaccuracies as to quantities, names, amounts, etc., will be rejected if there is enough left to make the purposes and intentions of the parties certain. If the parties have undertaken to make a written bargain axid have not made it, the law will not undertake to make one for them. But it will do all that can reasonably be done to carry into full effect, and exactly as was intended, the written bargain they have made. Nevertheless there is a rule, not of law, but of common sense and prudence, which is applicable to everybody in all matters, but to no persons more so than to farmers in relation to their .farms. This rule is, that it is at once easier and wiser to make all bargains and contracts such as will avoid questions and doubts than it is to answer these after they arise. - 2. Eenewal.of Lease. — The lessor is not bound to renew a lease without an express covenant to that effect, which may be in the lease or in a separate instrument. A mere understanding or verbal promise is not sufficient in law, whatever it may be in honor or in morals. The law does not favor such covenants, because they tend to perpetuity. But if there be such a covenant, and it is definite and reasonable, the law will sustain it. A covenant to "renew this lease under or with the same covenants" does not require that the new lease should contain the same covenant of renewal. For this would make the lease indefinite and perpetual at the pleasure of the hirer. But the covenant to renew covers all the other covenants and agreements of the lease. A covenant to ' ' re- new on such terms as may be agreed upon" is void for uncer- tainty. 3. Eemedt for Non-payment op Rent. — ^Leases now in use almost always contain provisions on this subject, which are, gen- erally, that the lessor may enter and expel the tenant if the rent 830 LEGAL EIGHTS AND OBLIGATIONS OF FAEMERS. be not duly paid, or that the tenant forfeits the lease and all rights under it by non-payment of rent. Provisions to this effect are expressed ia various ways, but are substantially the same everywhere, and no particular words are necessary for this pur- pose. But it should be known and remembered that the law is exact and even punctilious as to the exercise of this right of re- entry. It may be said in general, that to justify reentry m case of forfeiture a demand, must be made for the rent due and for the precise sum, and on the very day on which it becomes due and payable, and of the tenant himself, or if a place be prescribed in the lease where it is payable the demand must be made at that place, and if no place be prescribed then. of the tenant himself, or at a conspicuous or notorious place on tbe premises leased. Of course when the rent is due it becomes a debt, for which, all the ordinary means of recovering a debt may be resorted to. But if there be no clause of forfeiture for non-payment of rent, the lessor has not, at common law, a right of reentry for this cause. See, however, the chapter on Leases as to the remedy given by statute. 4. Tenant's Right to Vacate the Premises and Give up the Fakm. — As the owner and lessor may expel the hirer and termi- nate the lease if he does not pay his rent, so the hirer has certain rights in this respect as against the owner. In England, from whence we derive our law, this law is very severe against the tenant. There the landlord is under no obligation to inform an intending lessee of defects or objections which he knows and the lessee neither knows nor has means of knowing, although the de- fects are entirely incompatible with such use of the premises as the lessor knows the lessee intends to put the farm to and indeed hires it for. The rule in this country may not be entirely settled. But we are decidedly of the opinion that a lessee who- is so de- ceived, when he finds that he cannot cultivate the farm or make use of it in the manner he intended, may throw it up and the lessor has no claim against him. To have this effect, , however, the conduct of the landlord must amount, practically, to fraud. For defects that could have been ascertained by a reasonably careful examination, or for errors of judgment as to the use that could be made of the farm, the tenant has no remedy. Still more certain are we that the lease is cancelled and all right to rent is lost by any violent outrage or indecency on the HIEING OF A FARM. 831 part of the lessor, or any intentional and material interference by him with the tenant's proper use and enjoyment of the farm. 5. Apportionment of Kent. — The owner of a farm which he has let to a tenant can sell it as freely as if it were not leased. But he sells his farm subject to the lease, for he cannot impair the rights which the lessor has under the lease. The buyer be- comes the lessor and has all the original owner's rights and is subject to all of his obligations which run with the land. So the . owner may sell a part of the farm, or may seU'the whole in parts to different purchasers, but this does not extinguish the obliga- tions of the hirer or lessee, nor does it transfer them all to any purchaser. So also the. owner retaining his ownership may as- sign a portion of the rent-r-as one-fourth, or one-third, or one- half, or any other portion — ^to an assignee. Whether the owner sells a part of the farm, or the whole in parts to different pur- chasers, or assigns a part of the rent or the whole in parts, there must be a/n, apportionment of rent. The tenant must pay the same rent as before, but now he pays it to the persons entitled to it, in the proportion in which they are entitled to it. If the owner sells his farm in undivided parts, as one-half or one-third to one buyer and the residue to another, but without boundaries, there is no difficulty in apportioning the rent in the same way. But suppose the owner sells a part of the farm by boundaries, as if he sells certain fields or lots, the rent must now be apportioned according to value and not according to qua/ntity. Here again the tenant has no other interest than to ascertain to whom he must pay his rent. If the owners and the buyers of the fields or lots agree together as to the apportionment of the rent, the lessee is bound by their agreement, because it is of no im- portance to him to whom he pays his rent. If they do not agree, it is a question of fact which a jury must settle for them. So there may also be an apportionment by time, as when the lessor dies in the middle of the term for which the farm is leased. The lessee is now liable to the executors or administrators of the deceased for so much of the rent as accrued before he died, and to the heir afterwards, or to the heirs in the proportions in which they inherit the farm. A' tenant of a farm, if hisjease is terminated by any event which was uncertain, and which he could neither foresee nor 832 LEGAL RIGHTS AND OBLIGATIONS OF FABMBKS. control, is entitled to the annual crop which he sowed or planted while his interest in the farm continued. 6. Cultivation of the Farm. — In our chapter on leases it is said that the tenant of a farm is bound, without express cove- nant, to manage and cultivate the same in such a manner as good husbandry and the usual course of management of such farms in his vicinity require. But it is seldom wise to leave this rajsitter wholly unprovided for by Express agreement. The owner and the hirer of a farm generally have an understanding on this sub- ject, and this should be reduced to writing in the lease. Perhaps if nothing else be understood between them but customary and reasonably good cultivation, it is safe enough to leave this to the law. But more inay be agreed upon, and especially there may be a distinct bargain as to certain crops, or a certain rotation of crops, or the cutting of wood, or what fields should be broken up or sown, and what, when, and where manure shall be placed, or what land sown to grass, etc. All these things should be most distinctly and carefully set forth in the lease as agreed upon. For no merely verbal agreements would have any effect. For here, as elsewhere, in accordance with the important rule laid down in Chapter XLIII, Section V of this volume, no evidence would be received to vary the lease or add to or diminish its obli- gations. For the purpose of showing how and where special stipulations may be inserted we give the following form. The clause concern- ing renewal may be omitted if there is no agreement. (346.) A Form of a lease of a Farm. This Indenture, Made the , day of in the year of our Lord one thousand nine hundred and Witnesseth, That I, (name and residence of the lessor) do here^ by lease, demise, and let unto {name and residence of lessee) a certain farm or parcel of land, in the city (or town) of county of and State of with all the buildings thereon standing, and the appur- tenances to the same belonging, bounded and described as follows: {The premises need not be described quite so minutely or fully as is proper in a deed or mortgage of land, but must be so described as to identify them perfectly, and malce it certaim, just what premises are leased.) To Hold for the term of from the day of yield- ing and paying therefor the rent of . HIEING OF A FARM. 833 And said lessee does promise to pay the said rent in four quarterly pay- ments on the day of , etc. (or state otherwise just whsn the payments are to be made) and to quit and deliver up the premises to the lessor or his attorney, peaceably and quietly, at the end of the term, in as good order and condition, reasonable and proper use thereof, fire and other unavoidable casualties excepted, as the same now are or may be put into by the said lessor, and to pay the rent as above stated, and all taxes and duties levied or to be levied thereon, during the term, and also the rent and taxes, as above stated, for such further time as the lessee may hold the same ; and not make or suffer any waste thereof, nor lease nor underlet, nor permit any other person or persons to occupy or improve the same, or any part thereof, or make or suffer to be made any alteration therein but with the- approba- tion of the lessor thereto, in writing, having been first obtained; and that the lessor may enter to view and make improvements, and to expel the les- see, if he shall fail to pay the rent and taxes as aforesaid, or make or suffer any strip or waste thereof, or fail to fulfill any of the obligations hereinafter recited. That is to say, the said lessee hereby covenants and agrees that he will cultivate the said farm during all his possession of the same, in such' manner as good husbandry requires, and in especial, that he will (here insert carefully and fully all the agreements which the parties have made respect- ing the cultivation of the farm) or to. which the lessor intends to bind the lessee, and to which the lessee is willing to be bound). And the said lessor on his part covenants that he will, at the request of the said lessee, renew tlie lease for the period of years, to begin at the expiration of his lease. (Signature.) (Seal.) (Signature.) (Seal.) Signed, Sealed, and Delivered in Presence of Another form of farm lease will be found among the forms at the end of the chapter on Leases. 7. Hiring on Shares. — It is a common practice in many parts of this country, for the owner of a farm to let it "on shares." In some countries the great body of the land is let in this way ; the proprietor finding for the use of the occupier, such cattle, seeds, implements or tools as may be agreed upon, and the tenant or occupier of the land paying to the proprietor the agreed pro- portion of the produce. This proportion varies in those countries with varying circumstances, from one-tenth to one-half; being generally from one-third to one-half. If parties in this country make a bargain of this sort, and wish to reduce it to writing, the foregoing form of a lease will answer their purpose, provided they write, in the place of the agreement about rent in that form, what each of the parties agrees to do by their bargain ; the one as to what the lessor shall provide for the use of the hirer, and 53 834 PURE FOOD AND DEUa LAW. the other as to what share or proportion of the produce the lessee shall pay or deliver to the lessor or owner, and how it shall be de- livered. Other rules as to the rights and obligations of farmers as owners or hirers of a farm, or lessors and lessees, or landlord or tenants, will be found in our Chapter XXXII on leases. Among them are the rules relating to repairs, and the obligation of either party to make them, rebuilding in case of fires, assignment of lease, or underletting of the whole or a part of the farm, the rights of out-going tenants to crops which he sowed and which mature after he leaves the farm, tenancy at will, and notice to quit; and other like points. For the law on these subjects we refer to that chapter. CHAPTER XLIV. FTTBE FOOD AND SBTJG LAW. Under the provisions of this law — Act of June 30, 1906, as subsequently amended — the manufacture within any Territory or the District of Columbia of any article of food or drug which is adulterated or misbranded within the meaning of the Act, and the traffic in articles so adulterated or misbranded, including the importation from foreign countries, and the exportation thereof, is prohibited under heavy penalties. Rules and regulations for carrying out the provisions of the Act are made by the Secretary of the Treasury, Secretary of Agriculture, and Secretary of Commerce and Labor. Examination of specimens of food and drugs are made in the Bureau of Chemistry of the Department of Agriculture, or under the direction and supervision of the Bureau. In case any such specimens are found to be adulterated or misbranded notice is given to the parties interested, who have an opportunity to be heard, and if provisions of the Act are found to be violated, facts are certified to the District Attorney for action. "The term 'drug' as used in this Act includes all medicines and preparations recognized in the United States Pharmacopoeia PUBE FOOD AND DRUG LAW. 835 or National FormTilary for internal or external use, and any sub- stance or mixture of substances intended to be used for the cure, mitigation, or prevention of disease of either man or other ani- mals. The term 'food' includes all articles used for food, drink, confectionery, or condiment by man or other animals, whether simple, mixed, or compound. ' ' "An article shall be deemed adulterated: ' ' In the case of drugs : "1. If, when sold under or by a name recognized in the United States Pharmacopoeia or National Formulary, it differs from the standard of strength, quality, or purity, as determined by the test laid down in the U. S. Pharmacopoeia official at the time of investigation. Provided, that no drug defined in the U. S. Phar- macopoeia shall be deemed to be adulterated under this provision if the standard of strength, quality, or purity be plainly stated upon the bottle, box, or other container thereof, although the standard may differ from that determined by the test laid down in the U. S. Pharmacopoeia. "2. If its strength or purity fall below the professed standard or quality under which it is sold. ' ' In the case of confectionery : "If it contain terra alba, barytes, tale, chrome yellow, or other mineral substance or poisonous color or flavor, or other ingredient deleterious or detrimental to health, or any vinous, malt, or spir- ituous liquor, or compound or narcotic drug. "In the case of food: "1. If any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength. "2. If any substance has been substituted wholly or in part for the article. "3. If any valuable constituent of the article has been wholly or in part; abstracted. "4. If it be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed. "5. If it contain any added poisonous or other added dele- terious ingredient which might render such article injurious to health ; provided that when in the preparation of food products for shipment they are preserved by any external application ap- plied in such manner that the preservation is necessarily re- moved mechanically, or by maceration in water, or otherwise, and 836 PURE FOOD AND DRUG LAW. directions for the removal of said preservative shall be printed on the covering or the package, the provisions of this Act shall be construed as applying only when said products are ready for consumption. "6. If it consists in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not, or if it is the product of a diseased animal, or one that has died otherwise than by slaughter. ' ' "The term 'misbranded' shall apply to all drugs, or articles of food, or articles which enter into the composition of food, the package or label of which shall bear any statement, design or device regarding such article, or the ingredients or substances contained therein, which shall be false or misleading in any par- ticular, and to any food or drug product which is falsely branded as to the State, Territory, or country in which it is manufactured or produced. ' ' "In the case of drugs an article shall also be deemed mis- branded : "1. If it be an imitation of, or offered for sale under the name of, another article. "2. If the contents of the pa;ckage as originally put up shall have been removed in whole or in part, and other contents shall have been placed in such package, or if the package fail to bear a statement on the label of the quantity or proportion of any alcohol, morphine, opium, cocaine, heroin, alpha, or beta eucaine, chloroform, cannabis indica, chloral hydrate, or acetanilide, or any derivative or preparation of any of such substance contained therein. "3. If its package or label sliall bear or contain any statement, design or device regarding the curative or therapeutic effect of such article or any of the ingredients or substances contained therein, which is false and fraudulent. ' ' In the case of food : "1. If it be an imitation of, or offered for sale under the dis- tinctive name of, another article. "2. If it be labeled or branded so as to deceive the purchaser, or purport to be a foreign product when it is not so, or if the contents of the package as originally put up shall have been re- moved in whole or in part and other contents shall have been PURE FOOD AND DRUG LAM, 837 placed in such package, or if it fail to bear a statement on the label of the quantity or proportion of any morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indiea, chloral hydrate, or acetanilide, or any derivative or prep- aration of any of such substances contained therein. "3. If in package form, the quantity of the contents be not plainly and conspicuously marked on the outside of the, package in terms of weight, measure or numerical count : Provided, how- ever. That reasonable variations shall be permitted, and toler- ances and also exemptions as to small packages shall be estab- lished by rulas and regulations made in accordance with section three of this Act. "4. If the package containing it, or its label, shall bear any statement, design, or device regarding the ingredients or the sub- stances contained therein, which statement, design, or device shall be false or misleading in any particular ; Provided, that an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases : "a. In the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, if the name be accompanied on the same label or brand vnth. a statement of the place where said article has been manufactured or produced. "b. In the case of articles labeled, branded, or tagged so as to plainly indicate that they are compounds, imitatipns, or blends, and the word 'compound,' 'imitation,' or 'blend,' as the case may be, is plainly stated on the package in which it is offered for sale; Provided, that the term 'blend' as used herein shall be construed to mean a mixture of like substances, not excluding harmless coloring or flavoring ingredients used for the purpose of coloring and flavoring only ; And provided further, that noth- ing in this Act shall be construed as requiring or compelling pro- prietors or manufacturers of proprietary foods which contain no unwholesome added ingredient to disclose their trade formulas, except in so far as the provisions of this act may require to secure freedom from adulteration or misbranding. "c. No dealer shall be prosecuted under the provisioi^s of this Act when he can establish a guaranty signed by the wholesaler. 838 PXniE FOOD AND DEUG LAW. jobber, manufacturer, or other party residing in the United States, from whom he purchases such articles, to the effect that the same is not adulterated or misbranded within the meaning of this Act, designating it. Said guaranty, to afford protection, shall contain the name and address of the party or parties mak- ing the sale of such articles to such dealer, and in such case said party or parties shall be amenable to the prosecutions, fines and other penalties which would attach in due course to the dealer under the provisions of this Act. "Any article of food, drug, or liquor that is adulterated or misbranded within the meaning of this Act, and is being trans- ported from one State, Territory, District, or insular possession, to another for sale, or, having been transported, remains un- loaded or unsold or in original unbroken packages, or if it bo sold or offered for sale in the District of Columbia or the Terri- tories or insular possessions of the United States, or if it be im- ported from a foreign country for sale, or intended for exporta- tion to a foreign country, is liable to be seized! and confiscated, and may be destroyed or disposed of, and the proceeds, less the costs, paid into the treasury of the United States. But the owner may prevent such confiscation or sale by a good and sufficient bond that such articles are not to be sold or otherwise disposed of contrary to the provisions of this act. ' ' The Secretary of the Treasury shall deliver to the Secretary of the Board of Agriculture, from time to time, samples of ioodn and drugs which are being imported in the United States for sale, or o|fered for exportation; and if found adulterated or mis- branded within the meaning of this Act, or dangerous to health, may refuse admission ; but pending the decision on this matter, the goods may be delivered to the owner on the deposit of a good and sufficient security. ' ' It is provided that the act or omission of an agent, if within the scope of his authority, shall be deemed the act of the person or corporation whom he represents. EIGHTS AND DUTIES OF OWTSTEES. 839 CHAPTER XLV. THE AirTOKOBII.E. EIGHTS AND DUTIES OF OWNERS. The extensive use of the automobile which has come about since this book was originally written makes it desirable to add a few words as to the rights and duties of owners and users of these ve- hicles. Generally speaking, these rights and duties relative to other users of the highway are the same as those of horse-drawn ve- hicles, subject to such regulations as the dangerous qualities of these powerful machines have rendered necessary for the protec- tion of the public. On the one hand the motorist is entitled with all other members of the public to the free use of the public high- ways and streets ; on the other hand he has no superior right of way, and cannot by blowing his horn require every one else to make way for him. Like all other drivers of vehicles upon the public highway, the motorist is bound to use reasonable care to avoid injuring others. What is reasonable care varies with the situation in which he is placed and the degree of danger involved; what, for instance would be a reasonable rate of speed on an open country road might be recklessly excessive in a crowded city street. The very fact, however, that the machine which he operates is so powerful and capable of such high speed imposes upon him at all times the duty of a special degree of care proportionate to these dangerous qualities. In most of the states the rate of speed permitted on the high- ways is regulated by statute, sometimes by specifying the maxi- mum number of milea allowed per hour, and sometimes, as in Massachusetts, by prohibiting a rate of speed "greater than is reasonable and proper, having regard to trafSc and the use of the way, and safety of the public," but specifying certain rates of speed as prima facie excessive. Driving at a rate of speed in excess of the legal limits, when an accident results, is prima facie proof of negligence, and where the death of a person is caused by wilful and reckless overspeed- 840 AUTOMOBILE. ing the driver may be convicted of manslaughter. It is no de- fense in such a case that after the person injured was seen every effort was mside to avoid the accident. Keeping within the limits prescribed by statute does not how- ever exempt the driver from all further responsibility on this point. "On the contrary" says the Court in a recent case, "he still remains bound to anticipate that he may meet persons at any point in the public street, and he must keep a proper look-out for them and keep his machine under such control as to enable him to avoid collision with another person, using proper care and caution, and if necessary, he must slow up and even stop.- No blowing of a horn or of a whistle or ringing of a bell or gong, without an attempt to slacken the speed is suifHcient if the cir- cumstances demand that the speed be slackened or machine stopped, and such a course is reasonably possible. The true test is that he must use all the care and caution which an ordinary prudent and careful driver would have exercised under the same circumstances." A pedestrian has the same rights in the street or highway as an automobile, and is not restricted to the use of cross-walks. The motorist approaching a pedestrian in the traveled part of a highway should give warning with his horn or bell, and if neces- sary, slow up or stop. He is held to a special degree of care in the case of children and of old or infirm persons. On the other hand he has a right to assume that any person using the highway is in full possession of the senses of sight and hearing, and may act on that assumption until he has reason to believe the contrary. Ordinarily, a pedestrian has no right of way superior to that of the driver of a vehicle ; each may continue his own course, with relative regard for the other 's rights of travel, and the driver of an automobile is not bound to stop unless it is necessary to pre- vent a collision. Not unfrequently, a pedestrian becomes fright- ened or confused in his efforts to avoid an approaching automo- ^ bile. In such a case it has been held that the driver should not proceed, zigzagging back and forth in the effort to avoid a colli- sion, but should bring his machine to a stop. As the attention of the driver must of necessity be specially concentrated on what is in front of him' he is not, as a general rule required to keep a look-out backward to see whether others are approaching in his rear; but to back his machine without BIGHTS AND DUTIES OF OWNEKS. 841 looking behind for the safety of others, especially when close to a cross-walk in a city street is gross and inexcusable negligence. The driver of an automobile is not bound to slow up in passing a street car when in motion, lest a passenger should jump off in his path, but when a car is standing at a customary stopping- point he is bound to know that persons have a right to pass and repass to and from the sidewalk and he must slow up and take special care to avoid an accident. On the other hand a person boarding a car and seeing an automobile approaching must on his part take reasonable care to avoid being run over. As the safety of other users of the highway requires the full and constant exercise of the senses of sight and hearing on the part of the driver of an automobile it has been held that for a man blind of one eye and of imperfect vision to attempt to oper- ate an automobile on a public road is of itself evidence of negli- gence. For substantially the same reason it is held to be gross negligence for a man to operate an automobile when under the influence of intoxicating liquor, and in most of the States a heavy penalty is imposed for doing so. When approaching an intersecting street or a bridge or a sharp turn or curve in the road or a steep declivity the driver is re- quired to slacken speed and to give due warning of his approach by sounding his horn or other signaling device. As an automobile may be halted nearer a railroad track than a horse can usually be driven with safety, the driver has a better opportunity to look for approaching trains. In approaching a railroad crossing, therefore, the law holds the driver ' ' rigidly to such reasonable care and precaution as go to his own safety and that of the traveling public," and it has been held that before attempting to cross the track he is bound to obey strictly the rule to stop, look, and listen. When an automobile is left unattended in the street the laws of some states require that it shall be chained or locked to prevent its being started by unauthorized persons, but in the absence of such legislation it is usually sufficient to shut off the power, and if a stranger afterwards starts the machine, and an accident re- sults the owner will not be responsible. In the country, domestic animals of all kinds are often met with on the highway, and many motorists seem to suppose that they are there at their peril, and that they themselves have no 842 AUTOMOBILE. duty in relation to them or at least that all that is required of them under any circumstances is the sounding of the horn. This is a mistake. The owners of such animals when the latter are lawfully on the highway have the same rights as other users of the highway, and in all cases they are entitled to be protected against wanton or reckless acts by others. The motorist is bound to use every reasonable precaution to avoid running down such animals, dogs included. The relative rights and duties of motorists and drivers of horse-drawn vehicles have frequently come in question. Both are equally entitled to use the highway and the mere fact that the presence or the operation of the automobile may cause the horse- man annoyance or even danger gives the latter no legal ground for complaint. Even though the horse be frightened by the sight or sound of the automobile and an accident results, the motorist will not be responsible unless there has been some want of care on his part. If, however, he sees that the horse is frightened, or if the driver warns him that there is danger, he is bound to do everything in his power to prevent an accident by slowing down or stopping altogether, or even, if necessary, by stopping the operation of the engine. It is provided by statute in most of the States that the driver of the horse may require the motorist to take these measures, by raising his hand or otherwise signaling that his horse is frightened, but it would seem that the obligation of the motorist in this regard is substantially the same in the ab- sence of any statutory requirement. Like the drivers of all other vehicles the motorist is bound to conform to "the law of the road" — ^that is, in meeting another vehicle he must turn out to the right beyond. the middle line of the traveled part of the road, and in passing another vehicle go- ing in the same direction he must turn to the left. In England and in Canada the rule is the reverse of that in this country. When about to pass another vehicle the motorist must give notice by sounding his horn and the vehicle in front must then turn out to the right so as to allow him to pass unless there is room enough to pass without doing so. This rule, however, is subject to the qualifications that if the road is narrow the vehicle in front may continue on its way until it reaches a place where it can con- veniently turn out and allow the other to pass. EIGHTS AND DUTIES OF OWNERS. §43 For an automobile, or other vehicle, to be running' on the wrong side of the road is prima facie proof of negligence on the part of the driver, but this presumption may be rebutted by- showing that he had some valid reason for his action, as, for in- stance, that the road was obstructed, that he was obliged to turn aside to avoid collision with some other vehicle, or that he was about to stop on that side of the road or to' turn intq a side road ; but it is not a sufficient excuse that the road on the right side is rough or not in good repair, unless it is actually dangerous ; and the fact that a vehicle is on the wrong side of the road does not absolve the drivers of other vehicles from the obligation to use all reasonable care to avoid collision with it. Both in this and in other cases it is a general rule that, without regard to the original fault, the party who has "the last clear chance" to avoid an acci- dent is the one on whom the final responsibility falls. "While the motorist is bound under all ordinary circumstances to obey the law of the road as well as all other statutory require- ments, emergencies may arise where too rigid adherence to rules is unjustifiable. In all cases he must exercise ordinary fairness and good judgment in reference to the rights of other users of the highway. As was said by an eminent judge, "The law ex- pects the driver to use common sense. ' ' In case of an accident the motorist is generally required by law to stop and to give his name and address, and the place of registration and number of his automobile, for the purpose of future identification. Neglect or -refusal to do so will subject him to a heavy penalty. When the automobile is operated by some person other than the owner questions frequently arise as to the liability of the latter in case of accident. In such case the mere fact that he is the owner does not make him liable ; it must appear further that the person actually in charge of the machine was employed by him and acting in his service. Even the fact that the operator is his son or daughter does not make him responsible. The question still arises: Was the child engaged in the parent's business or acting under his instructions or control, or at his request ? Thus where a daughter took a party of friends to ride in her father's automobile, without his authority, it was held that he was not responsible; and the same decision was made where a son was permitted to use the father's automobile for purposes of his own. 844 AUTOMOBILE. On the other hand when a man had bought an automobile for the general use of his family, which was operated only by his minor son, and his wife had general permission to use it without special request, it was held that the son when taking his mother to ride was acting in accordance with the general instructions of his fa- ther, express or implied, and that the father was responsible for his negligence. Nor is it sufficient that the general relations of employer and employee subsist between the parties. The automobile owner is not in all cases responsible for the acts of his chauffeur. It is only when the latter is acting within the scope of his employment — when he is acting under his employer's directions or in the performance of his business that the employer is responsible for his acts or his negligence. Thus, when the, chauffeur goes in his employer's automobile on a pleasure ride or on his own business the employer is not responsible. So, when a chauffeur was sent by his employer on an errand and he went first in another direc- tion for a purpose of his own and there met with an accident it was held that his employer was not liable to the person injured. So also, when one borrows an automobile the owner is not re- sponsible for any accident while it is under the control and man- agement of the borrower. As these powerful machines would endajager the safety of other users of the highways unless managed with care and skill their use has been subjected to regulation in nearly all of the States; the machines must be registered and numbered, the operators licensed, the speed limited, the use of lights regulated, etc. These statutes vary greatly in their provisions and are con- stantly changing; it would be impracticable for us to give even an abstract of them sufficiently full to be of practical value. At the same time it) is extremely important for every owner and operator of an automobile that he should not only be thoroughly familiar with the laws of his own State on this subject, but that before going into another State he should ascertain what the laws of that State require, especially on the subject of registration, operator's license and speed limits. By so doing he may save himself great annoyance and expense from unintentional viola- tion of law. Copies of the laws on this subject can usually be obtained by application to the proper authorities at the State capital. EIGHTS AND DUTIES OF OWNERS. 845 The most important of these statutes are those requiring the registration of automobiles and the display upon them of the registration numbers. The results of failure to register — aside from the penalty imposed — depend upon the terms of the statute. Thus, for example, under the earlier statute of Massachusetts such failure was treated only as evidence of negligence, but under a later statute which provided that no automobile shall be used on a highway that is not registered as required by law it was held that the operator of an unregistered automobile is a mere tres- passer on the highway and that other users of the highway have only the duty not to injure him by wantonness or recklessness. Accordingly in such cases it was held that none of the occupants of the automobile could recover in case of accident, even if they were not aware that it was not registered. By a still later stat- ute, however, it is now provided that failure to observe the regis- tration laws cannot be pleaded in defense unless the plaintiff was the owner or operator of the vehicle, or knew that the law was being violated. Failure to obtain an "operator's license, on the contrary, is held to be only evidence of negligence, and does not of itself deprive the operator or the owner of the right to recover for any injury due to the negligence of another where want of skill on the part of the operator himself did not contribute to the accident. The same principle is applied in other cases of breach of statutory regulations such as the failure to carry lights or to conform to the law of the road. If an accident is due wholly or in part to the failure to conform to any such regulation the motorist will be held liable in damages to the person injured; and if he himself or his machine is injured and such failure on his part has con- tributed to the accident he will be unable to recover damages, even when' the accident resulted primarily from the negligence of the other party ; but- where the accident is in no part attributed to the failure to comply with the law, such failure will be no bar to his recovery. This doctrine of contributory negligence applies also to all other kinds of negligence as well as to the failure to comply with statutory regulations— where the party claiming damages has himself, been guilty of negligence he cannot recover. The statute usually requires that the motorist shall always have with him when operating his machnie both the certificate of 846 WORKMEN'S COMPENSATION LAWS. registry of his automobile and his operator's license, and failure to do so subjects him to a penalty. An automobile may be insured against damage or destruction by fire whether occasioned by any external cause or by ignition or explosion in the machine itself, against loss or damage while in course of transportation by land or water, against injury from collision with other objects or other accident, and against theft. The owner may also be insured against claims for damages for death, or for injury to the persons or property of others, occa- sioned by collision with his machine. CHAPTER XLVI. WOREHEIf'S COMFENSAIION LAWS. Under the common law an employer was responsible for acci- dental injuries suffered by his employees only when the accident was due to some negligence on his part, or on the part of some one to whom he had entrusted the superintendence of his busi- ness. In an action for damages resulting from such an accident not only was the employee required to prove ihe fact of the em- ployer 's negligence but the employer might, among other things, plead in defence, (1) contributory negligence — ^that is, that the accident was due in part to the negligence or carelessness of the employee; (2) voluntary assumption of risk — ^that is, that the employee, knowing that there were certain dangers incident to the work in which he was to be engaged, voluntarily entered upon the employment and thereby assumed the risk of any injury not directly traceable to the employer's negligence, and (3) the fel- low servant doctrine — ^that is, ttat the accident was due to the carelessness or negligence of a fellow employee for whose conduct the employer was not responsible. The results of this system were extremely unsatisfactory. Both the theory of the employer's negligence as the ground for compensation to the employee, and the defenses which the em- ployer was allowed to set up, whatever may have been the case at an earlier day, are admittedly inapplicable to modern indus- trial conditions. . SCOPE OF THE LAW. 847 The first changes in the law merely increased in certain re- spects the employer's responsibility, making him answerable to his employees for the negligence of other employees entrusted with the duty of superintendence, and for defects in the ma- chinery and appliances furnished for the performance of the work. This was the substance of the "Employers' Liability Laws, ' ' enacted in England and in a considerable number of the States. These laws, however, failed to effect the object desired. On the one hand there were a very large number of industrial acci- dents not directly traceable to the negligence of either the em- ployer or the employee, and for which the employee therefore could recover no compensation, while in any case the expense of prosecuting the employee's claim usually absorbed a large part of any sum finally recovered. On the other hand there was no established rule for compensaition, and the employer often had to pay excessive sums awarded by sympathetic or prejudiced juries. There resulted a growing sentiment that compensation for indus- trial accidents should be put upon an entirely different basis and that the best practical way of dealing with the matter was to treat such accidents as incident to the business, making the em- ployer primarily responsible in all cases, without regard to the question of negligence. In this way compensation for injuries would form a regular part of the cost of conducting the business, and would ultimately be paid by the public as a part of the cost of production. An essential part of the plan also was the estab- lishment of a definite basis for compensation for injuries of dif- ferent kinds, the amount in each case depending upon the char- acter and the degree of the injury. The result is the "Work- men's Compensation Laws." Laws of this kind have now been enacted in a large majority of the States in the Union. While they are all based upon the same general principles, they vary widely in their scope and in their details. It would be imprac- ticable to give them in full in a work of this kind, but we give here a general view of the subject, followed at the end of the* chapter by brief abstracts of the laws of the several States. FIRST THE SCOPE OP THE LAW. In only a few States have the Workmen's Compensation Laws been made absolutely obligatory. In a large majority it has, for 848 WORKMEN'S COMPENSATION LAWS. constitutional reasons, been made optional with tlie employer, in form at least, whether to accept the provisions of the law or not. "We say, in form, because in every such case the law is so drawn as to put at a distinct disadvantage any employer who does not accept it. This is usually done by providing that the employer who does not adopt the compensation system shall be deprived of the three special defenses above mentioned, but that this provi- sion shall not apply to those who accept it. "Where the employer accepts, his employees are put to a similar election, for if they choose to stand outside of the law their employer may set up any of the above-named defenses against them. By accepting the compensation law both parties waive all other legal remedies and consent to be governed exclusively by its provisions. In some of the States acceptance of the law is presumed unless notice to the contrary is given to the Industrial Board or other state officials having jurisdiction over the operation of the law. In others, the employer must file a written acceptance. He must then notify his employees of his acceptance of the law and post notices of such acceptance in his factory or other place of busi- ness; the acceptance of the employees is then conclusively pre- sumed unless they give written notice to the contrary. Provision is also made for the subsequent withdrawal of assent. In most of the States there are limitations to the application of the law. In a few, as in Louisiana, New York, New Hampshire, and "Washington, it is limited to certain enumerated ' ' hazardous ' ' trades or occupations ; although in New Tork the list is so com- prehensive that the limitation is more nominal than real. In other States the provisions of the law do not apply to employers of less than a specified number of employees, varying from two to ten, or of casual employees or outworkers. In others, as in Massachusetts, there is an express exemption of employers of do- mestic servants or of farm laborers. Compensation is denied in many States, when the injury is due to the wilful intention of the employee to injure himself or an- other, or where it is due to his intoxication, or to his neglect to use safeguards against accidents, which are provided for him. Accidents due to "serious and wilful misconduct" or to "wilful misconduct" are also excepted. Under the former clause it is held that the word "serious" applies to the misconduct itself, not to the actual consequences of it ; accordingly not every breach of NATURE AND EXTENT OF LIABILITY. S49 rules deprives the employee of compensation. The word "wil- ful" imports that the conduct was deliberate, and not merely a thoughtless act done on the spur of the moment, or as the result of some pressing emergency. But where a workman intentionally violates an express order made solely for the protection of em- ployees, and which he fully understands, he is guilty of ' ' serious and wilful misconduct. ' ' SECOND NATURE AND EXTENT OF THE LIABILITY. Even under, the compensation law the employer is not the in- surer of the employee's safety at all times or under all circum- stances. His liability extends only to "personal injury sustaiued by an employee arising out of an-d in the course of his ''employ- ment. ' ' This is the language of the Connecticut statute, and in substance it is found in the statutes of all the other States. On the other hand it is sometimes provided that when the injury is due to the serious and wilful misconduct of the employer dou- ble the amount of the usual compensation shall be paid to the employee, and this clause, it is held, is not limited to acts done with the positive intention of inflicting injury, but includes reck- less acts evincing utter disregard of consequences, and even per- sistent neglect to remedy dangerous conditions of which the em- ployer has actual knowledge. In the English statute, and in those of a considerable number of the States, a further limitation is introduced — ^the injury must be "accidental," or "caused by accident." The most important effect of these terms is in rela- tion to claims for injury caused by disease. Where the word "accident" is not used, it is usually — though not always — ^held that death or injury from disease is included. Thus, the Supreme Court of Massachusetts say, "It is clear that personal injury under our act includes any injury or disease which arises out of and in the course of the employment, which causes incapacity for work, and thereby impairs the ability of the employee for earning wages." Accordingly, it was held in that case that loss of sight resulting from an attack of optic neuritis induced by poisonous gases escaping from furnaces which the workman was tending was a "personal injury" within the meaning of the act. In these States death or injury from "occupational diseases," such as lead poisoning, is placed upon the same level as that caused by external violence. On the other hand, where the word 54 850 WORKMEN'S COMPENSATION LAWS. "accident" is used compensation for the effects of disease is de- nied, unless the disease results from some actual physical injury. The statutes of Iowa, Louisiana, New York, Vermont, and some other States exclude liability for disease in express terms. In this connection "the word 'accident' is used in the popular and ordinary sense of the term as denoting an unlooked for mis- hap, or an untoward event which is not expected or designed ; ' ' and it is said that "where no specific time or occasion can be fixed as the time of the alleged accident ther^ is no 'injury by ac- cident' within the meaning of the act." Accordingly, when a workman after ten days' service in a bleachery was affected by a rash caused by contact with damp goods it was held that he was not injured by accident. So, where, as the result of years of labor, a man finally breaks down and has to give up work. But in an English case it was held that where a man died from a dis- ease called "anthrax" as the result of a specific poison absorbed in the course of his employment as a wool sorter, his death was accidental. And under the terms of an accident policy it has been held that death due to glanders contracted by a man in the course of his employment was accidental. The acceleration or aggravation of a preexisting disease or infirmity is an " injury- caused by accident. ' ' Sunstroke, except under peculiar circumstances is generally considered as a disease. Frostbites, too, have generally been held to be one of the natural incidents of a cold climate, not "arising out of the employment," and not "accidental" injuries. But when the nature of the employment is such as to expose the workman^ in a peculiar degree to the effects of heat or cold he may be entitled to compensation ; as where a sailor, painting on the outside of a ship under a tropical sun, suffered from the ef- fects of the sun's rays increased by reflection from the side of the vessel. So heatstroke caused by working in front of a fur- nace is held to be an accidental injury. If the original injury is one for which the employer, is liable he will be liable also for the incidental results of the injury ; as for example where death results from the use of an aneesthetic in an operation rendered necessary by the accident. So, where a workman lost the sight of one eye by the spattering of hot metal, arid at the hospital, in a fit of insanity caused by his in- NATUEE AND EXTENT OF LIABILITY. 851 juries, jumped out of a window and was killed, it was held that his widow was entitled to compensation for his death. Where a workman unreasonably refuses to submit to a safe and reasonable operation which will relieve or remove his inca- pacity to work at his trade, his incapacity thereafter is held to be the result of his refusal, and not of the original accident. In such case, however, the burden of proof is on the employer to show that the operation would have effected the result claimed, and that the refusal was unreasonable. The workman may. jus- tify by showing that he acted under the advice of an honest and competent physician. The same principle has been applied where the workman persistently neglects or refuses to conform to habits of life essential to his recovery. Again, the employee's injury must "arise out of his employ- ment." It must be due to the character of the work in which he is engaged, or to the conditions by which he is surrounded, or the dangers to which he is peculiarly exposed while performing it. In the language of the Supreme Court of Massachusetts: ' ' The injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. " "It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employ- ment, and to have flowed from that source as a rational conse- quence." Thus, while the employer would clearly be liable for injury caused by an accidental explosion in the quarry in which his em- ployee was working, he would not be responsible if the employee was injured by a stray bullet fired from outside. So, it has been held that where a man engaged in working high up in the air upon the steel frame of a building was struck by lightning, the accident was attributable in part to the exposed character of the place where he was working, and therefore due to his employ- ment, but that when a factory operative was so struck he was not entitled to compensation as the conditions under which he was working exposed him to no special danger. An employer has been held liable for injury caused by the explosion of a steam boiler operated by a third party on the floor below that on which nis business was conducted, on the ground that his workmen 852 WORKMEN'S COMPENSATION LAWS. were necessarily exposed to this hazard while doing their work. So too, where the injury was caused by the bite of a cat habitually kept in the place of employment. And where the statute covers disease, the employer would be liable for the effects of an " occu- pational disease" such as lead or phosphorous poisoning, or a dis- ease caused by bad drainage or other unhealthful conditions of the place where the employee was required to work, but not where the employee contracted an infectious disease, such as smallpox, from a fellow workman. Thus, where a boy is doing his work was required to use a leaky boat and contracted pneu- monia as the result of wetting his feet, he was held to be entitleid to compensation. On the other hand, when a teamster became temporarily deranged while on the road and after driving about aimlessly a long distance from his usual route was found dead from exposure, it was held that there was nothing in the nature of his employment that exposed him to danger of temporary de- rangement, and that the injury did not arise "out of his em- ployment." Injuries suffered by an employee at the hands of third persons while in the performance of his duty are generally considered as arising out of his employment. For instance, where a paymaster was robbed of his employer's funds and killed while engaged in his regular duties; where a game-keeper was attacked and in- jured by a poacher ; and where an engineer was killed by a Stone thrown by a boy from a bridge under which the train was pass- ing. So, where a checker employed by a merchant was assaulted and killed by a drunken fellow-servant who was known by his employer to be quarrelsome and dangerous when intoxicated; and where a foreman whose duty it was to keep order was in- jured while attempting to stop a fight between workmen. . On the other hand injuries resulting from practical jokes played by one workman on another, or from rough play, or from a private quar- rel between workmen are generally held not to arise out of the employment. So too, where the assault has no relation to the fact of employment, as when it is committed by a drunken stranger. The fact that the injury would not have been suffered had the workman been stronger or in better health is immaterial. "An accident arises out of the employment," said the Lord Chancellor of England, "when the required exertion producing the accident NATURE AND EXTENT OF LIABILITY. 853 is too great for the man undertaking the work, whatever the de- gree of exertion or the condition of health." Accordingly, it was held that the rupture of an aneurism while the workman was tightening a screw — a work not involving excessive strain — was an accident arising out of the employment ; and so in a case of apoplexy brought on by over exertion. Finally, the injury to the employee must have been sustaiaed ' ' in the course of his employment. ' ' The liability in this respect does not depend on whether the general relation of ,employer and employee subsists between the parties, but whether at the time of the accident the employee was actually in the performance of the employer's business, or under his control and subject to his di- rection ; and it- is held that an employee is deemed to be in the employer's service whenever he is present to perform his duties as a servant, and subject to orders, although at a given time he may not be in the actual performance of a duty. The law on this point is thus stated by an eminent judge: "An accident arises in the course of employment when the employee is doing what a man so employed may reasonably do, within a time during which he is employed, and at a place where he may reasonably be dur- ing that time." Generally speaking, in a manufacturing or other similar busi- ness, the workman begins his employment upon entering the em- ployer's premises and continues in it until he has left them. It has been held, however, that when the employee enters the prem- ises by a forbidden route or one different from that provided by the employer, a resulting injury is not incurred in the course of his employment. Nor is the employer responsible when the em- ployee temporarily leaves his work and for purposes of his own goes to a part of the establishment where he has no duty to per- form and there meets with an accident; nor where, being em- ployed to work on a certain machine, or to do a certain kind of work, he voluntarily and without orders undertakes the opera- tion of a different machine or the performance of a different kind of work. But if the work is done with the assent of the employer, express or implied, or by the direction of his authorized agent, the fact that it is outside of the scope of his regular employment is immaterial. In the ease of a sudden emergency the employee may, in the interests of his employer, do acts not within the scope 854 WOEKMEN'S COMPElSrSATIOlir LAWS. of his usual employment, as when a servant was injured while endeavoring to stop his master 's runaway horse. Where the accident does not take place on the employer's premises his liability depends upon the same general principles. Thus if the employer sends his coachman on an errand with his carriage and the coachman goes on a pleasure ride or on business of his own, the employer is not responsible, and so when he takes his employer 's horse, or automobile without leave. But where a servant was injured while watering his employer's horse, which was one of his duties, it was held to be immaterial that he waa intending after the watering to take the horse out for his own purposes. Where a workman was employed in unloading a gondola car and after it was unloaded jumped on the car and rode to a switch where he had no duty, merely to pass the time, it was held that the employer was not liable for an injury which he sustained while so riding. On the other hand, where a factory employee deviated from his usual route in going from his home to his work in order to procure an article which his employer had directeid him to procure it was held that this was in the course of his em- ployment. And so where it is a part of the contract of service, express or implied, that the employee shall be carried to and from the place where the work is actually performed an accident happening on the way is in the course of employment. The relation of employer and employee exists for a reasonable time before and after the actual performance of work provided the employee is upon the employer's premises. Thus, injuries sustained while coming to work or leaving it are within the scope of the employment. So, where a workman after finishing, his work for the day was injured while changing his clothes. And where a woman, after she had quit work at her machine, had her hair caught in ma- chinery while combing it preparatory to going home at noon, it was held that the accident arose out of and in course of her em- ployment. Where a workman is taking his lunch during the lunch hour upon the employer's premises at a place provided for that purpose, or at an apparently safe place which he has not been forbidden to use, he is still in the exercise of his employ- ment. So,; where a woman, after leaving her work room at the noon hour to go to lunch was injured by falling on stairs which COMPENSATION FOR INJURIES. 355 formed the only means of access to the room, although not in the control of the employer, it was held that her going out for that purpose was incident to her employment, and that she was en- titled to compensation. And a workman is still acting in the course of his employment where after his work is finished he re- turns to his employer's premises for his pay. THIRD COMPENSATION FOR INJURIES. In case of death a few of the States provide for the payment to the family of the deceased employee of a lump sum, the amount of three or four years' wages, but not less than a minimum amount varying from $1,000 to $2,000 and not more than a maxir mum amount of about $4,000. In most cases, however, a system of weekly payments is adopted. Payments are usually made to the surviving wife or husband, and minor children under eight- een (or over eighteen if physically or mentally incapacitated), and if there are none then to other persons, if any, wholly de- pendent upon the deceased for support. Provision is also usually made proportionally for persons partially dependent. These payments are based on the average weekly wages of the deceased employee, and are made for only a limited time. They vary greatly in the different States both as to amounts and the times during which they are paid, as will be seen by reference to the abstracts of State laws at the end of this chapter. Where there are no dependents provision is usually made for the payment of funeral expenses to a limited amount. In one State only, Okla- homa, no payment is made in case of death. In case of injuries not fatal, the laws of all the States provide for immediate surgical and hospital treatment at the expense of the employer, usually for a term varying from two weeks to sixty days. In some States there is a further limitation as to the amount of expense to be thus incurred. In California, under a recent law, there is no limitation, either as to time or expense. Usually, in order to guard against malingering no direct pay- ment is made for two weeks after the accident. After that time weekly payments are made for limited terms to the injured em- ployee, or, in case of his death before full payment has been made, to his family, the amount of which is based on a certain percentage, varying from fifty to sixty-six and two-thirds, of his average weekly wages. These weekly benefit payments are usu- 856 WORKMEN'S COMPENSATION LAWS. ally granted for limited periods and are subject to the further limitation that they shall not be less than a minimum sum vary- ing from four to six dollars per week, nor exceed a maximum sum of from ten to fifteen dollars. In case of blindness or of the loss of a limb or other bodily mutilation an additional payment is usu- ally provided for, the amount of which is determined by certain schedules in which the amount payable for each kind of injury is specified. In California, Washington, and Oregon life pensions are given in case of permanent total disability. In many of the States it is provided that, where the employee injured is a minor, the fact that if he were uninjured his future earnings would be larger than those at the time of the accident, may be taken into account in determining the amount of compensation. Unless the employer has actual knowledge of the accident, no- tice must be given to him as soon as practicable. In some States notice must be given within thirty days after the accident. In New York notice must be given to the employer and to the State Compensation Commission within ten days, or in case of death within thirty days. The notice should specify the names of em- ployer and employee, the nature of the injury and the time and place of the occurrence of the accident, but errors in defects in the notice do not prejudice the rights of the employee unless the employer is misled thereby. The claim for compensation must also be presented within a limited time, usually within one year after the accident. After the employee has given notice of his injury and from time to time during his disahility he must if requested by the em- ployer submit himself to examination by a physician or surgeon appointed by the employer, but he has a right to have a physician appointed and paid by himself present at such examinations. The Illinois statute provides that if the employee shall persist in unsanitary or injurious practices which tend either to imperil or retard recovery, or shall refuse to submit to such medical or sur- gical treatment as is reasonably essential to promote recovery his compensation may be reduced or suspended by the State Board, and a similar provision is found in the laws of several other States. It is provided in the laws of many of the States that no agree- ment on the part of the employee to waive the benefits of the act PEOCBDURE. 857 shall be valid, and also that rights to compensation shall not be assignable or subject to claims of creditors. "When the circumstances are such that the employee would have a claim for damages against a third party, the statute usually provides that payment by the employer will not bar an action by the employee against such third party. The Connecticut statute, for instance, provides that in such case the employee, or the em- ployer if he has paid or is liable for compensation, may bring an action for damages against such third party. Employee or em- ployer bringing the action shall notify the other, who may within thirty days join as a party plaintiff. If both join, any damages recovered are applied first to payment of the employer's claim, and the balance paid to the employee. The provisions in other states are to substantially the same effect. FOURTH PROCEDUEE. The Workmen's Compensation Law usually provides for the appointment of a State Board or Commission having jurisdiction over all claims for compensation under the Act. If the parties agree upon the amount and terms of compensation a memoran- dum of the agreement is filed with the Board which is thereafter enforceable in the same manner as a decree or judgment of a court. If the liability of the employer is disputed, or if the par- ties do not agree as to the compensation to be paid, a petition setting forth the nature and circumstances of the case is pre- sented to the Board, upon which, after hearing the parties, the Board determines the questions at issue between them. In some States these questions are decided by a board of arbitration con- sisting of one member of the State Board and one person ap- pointed by each of the parties, their decision being subject to re- vision by the State Board. In Louisiana, New Hampshire, and Rhode Island the amount of compensation is determined in the first instance by proceedings in court. These laws are always liberally construed; the proceedings before the Board are in- formal, and technical rules of evidence are disregarded. The State Board retains a supervision over the matter of com- pensation and may on proper showing modify the original award if a change of circumstances requires it. It usually has power also to commute weekly payments into payment of a lump sum if that clearly appears to be for the interest of the party receiving 858 WORKMEN'S COMPENSATIOlsr LAWS. it, and to make such other changes in the form and manner of payment as it may deem to be fore the best ihterest of the parties. FIFTH— ^INSURANCE. The increased liabilities imposed upon the employer by the Compensation Laws have made it more than ever important to him to be able to insure himself against these risks. It is no less important to the employee that his employer should be insured, and that the payment of compensation for injuries should not be dependent upon the solvency of the employer. Accordingly, in many of the compensation laws special provision is made for such iasurance, either by the establishment of a State Fund or by the organization of an Employers' Insurance Association. The policies of the several states both as to the form of insur- ance and as to making such insurance compulsory vary greatly. In some, as in New Hampshire, Nebraska, and Wisconsin insur- ance is optional. In California it is optional, although a State Fund is provided for. In most of the other States insurance in some form is compulsory. Thus, in Massachusetts the provisions of the Act apply only to subscribers to the "Employers' Insur- ance Association," which is under the supervision of the State, and to those who insure in private stock or mutual companies. In some States the law goes stiU farther; thus in Connecticut, New York, Illinois and some other States the employer must either satisfy the State Board of his financial responsibility and ability to pay any compensation awarded or he must insure in the State Fund or Employers' Association provided for in the Act or in some responsible private company. It is a very com- mon provision that in case of accident the employee may make his claim for compensation directly upon the insurer. There seems at present to be a growing tendency to provide for some system of State insurance, either by the establishment of a State Fund as in New York, Ohio, West Virginia, Michigan, \ California, Washington, and Nevada, or by the organization of Employers' Mutual Association under the supervision of the State as ia Massachusetts and Connecticut. ABSTRA.CTS, WORKMEN'S COMPENSATION LAWS. 859 ABSTEACTS OF WORKMEN'S COMPENSATION LAWS. The three common law defenses referred to in these abstracts are: 1. As- sumption by the employee of the risks of the employment. 2. Negligence of fellow-employee — the fellow-servant doctrine. 3. Contributory negligence on the part of the injured employee. ALASKA. Act relates only to employers of five or more persons, engaged in mining operations, including milling, reduction processes, etc. Acceptance of act is optional with both parties, but conclusively presumed unless notice is given of election to the contrary. Notice by employer must be witnessed by two witnesses, and recorded with U. S. Commissioner of the precinct. Notice by employee must be served on employer, and recorded with affidavit of date of service. Election operates for one year only; if not renewed, presumption of acceptance revives. Employer rejecting Act is deprived of the three common law defenses, except that of employee's negligence when wilful, or the result of intoxication. If employee rejects the Act aU defenses are open to employer; but defense of assumed risk of business does not apply if in- jury is result of employer's violation of any statute providing for safety of employees. Compensation: In case of death $3,000 to widow and $600 additional for each child under sixteen, not exceeding in all $6,000. If employee also leaves dependent father or mother, or both $600 in addition to amount paya- ble to widow, not exceeding $6,000 in all. If unmarried, to dependent fa- ther or mother $1,200, or to both, $1,200 each. If widower, leaving minor children, $3,000 and $600 additional for each child under sixteen, not ex- ceeding in all, $6,000. If unmarried, leaving no children, or father or mother dependent, funeral expenses not exceeding $150, and other expenses incurred after injury, and before death, not exceeding $150. For total per- manent disability — if married, $4,800, and $600 additional for each child under sixteen, not exceeding in all $6,000. If no vrife or children but de- pendent father or mother $4,200, or if both, $4,800. If widower, or di- vorced, with minor children, $3,600, and $600 for each child under sixteen, not exceeding in all, $6,000. If unmarried and no children or dependent fa- ther or mother, $3,600. For partial disability, payments as fixed by sched- ule. For temporary disability, fifty per cent, of average daily wages dur- ing disability not exceeding six months. No compensation for first two weeks unless disability continues for eight weeks. ARIZONA. Compensation compulsory in certain dangerous occupations, for injury due to necessary risks of employment, or to failure of employer or his em- ployees to use due care. Employments specified: — ^work on railroads; blast- ing; erection or demolition of steel frame buildings; use of hoisting ap- paratus on same; work on ladders or scaffolds more than twenty feet from the ground in erecting any structure; use of apparatus charged with elec- tric current; pole lines for teilegraph or telephone ; mine and quarry work; 860 ABSTEACTS, WOEKMEN'S CXDMPENSATION LAWS. tunnels, sub-ways and viaducts; work in factories operated by steam or electricity. Compensation: in case o£ death, twenty-four hundred timesi one-half of daily earnings, not to 'exceed $4,000, to be applied to support of widow, if any, and support and education of minor children until eighteen; medical and funeral expenses also payable from fund. If no widow or children, then to dependent father and mother or sister. For injury not resulting in death within, six months but producing total incapacity for work for more than two weeks — semi-monthly payment during incapacity of one-half of average semi-monthly earnings. In case of partial incapacity or of partial recovery, payment of one-half of difference between earnings before and earning ca- pacity after the accident. Payment not to exceed in all $4,000. Notice must be given to employer or foreman within two weeks, and duplicate sent to Attorney General. Disputed questions if not settled by agreement or ar- bitration, then by reference to Attorney General or by action at law. Both parties presumed to be bound by Act, but may disaflSrm by giving notice. If either party refuses to make or accept compensation under the Act the other may resort to other legal remedies. Parties in occupations other than those above may elect to come under the Act. CALIFOENIA. Act is declared to be an expression of public power. It applies to all em- ployers, including the State, counties, cities, etc.; and to all employees ex- cept those whose employment is only casual, and not in the usual course of employers business, and those engaged in agricultural labor, stock or poul- try raising, and domestic service. In these excepted cases employer and em- ployees may by joint action put themselves under operation of Act by writ- ten acceptance filed by employer with Commission, operative for one year, and from year to year thereafter unless terminated by sixty days' notice before the expiration of any year. Employer liable for injury or disease arising out of the employment and not caused by intoxication of employee or intentionally self inflicted. Compensation: 1. Such medical, surgical and hospital treatment, includ- ing nursing, medicines and surgical supplies, artificial limbs, etc., as may reasonably be required to cure and relieve from effects of injury. No other compensation for first seven days. 2. In case of temporary disability: if total, 65% of average weekly earnings during such disability; if partial, 65% of weekly loss of wages; in any case not exceeding three times an- nual earnings, or for more than 240 weeks. In case permanent disability, 65% of average weekly wages for terms varying from one week in case of disability 1% of total, to 240 weeks for disability of 60% ; and for disabil- ity greater than 60%, the same as for 60%, with payment for life after ex- piration of 240 weeks, viz: for 70% disability 10% ofl weekly wages, for 80%, 20% of wages, for 90%, 30% of wages, and for 100%, 40% of wages, with proportionate amounts for intermediate percentages. In case of death, to persons wholly dependent, burial expenses not exceeding $100, and> death benefit which, adde^ to funeral expenses and any disability payment accruing before death, equals three times annual earnings, such earnings to ABSTRACTS, WORKMEN'S COMPENSATION LAWS. §61 be taken as not less than $333.33, nor more than |l,666.66. Eor partial dependents, in case there are no persons wholly dependent, burial expenses, and death benefit of three times annual amount devoted by deceased to such partial dependents, not exceeding, with burial expenses and any disability payments, amount payable to persons wholly dependent, as above. If no dependents, burial expenses, $100. No compensation if death caused, or disability caused or aggravated, by refusal to submit to medical treatment or surgical treatment where risk is inconsiderable. Where injury is caused by serious and wilful misconduct of employee, if over sixteen, compensation reduced one-half, except in case of death or 70% disability, unless injury is caused by failure of employer to comply with law or safety order. Where injury is caused by serious and wilful misconduct of employer or his managing representative compensation increased one-half, but in- crease not to exceed $2,500. Unless employer has knowledge of accident notice must be given within 30 days, but defect or absence of notice does not bar claim unless employer is prejudiced thereby. Proceedings for collection of disability benefit must be commenced within six months after date of injury; for death benefit within one year after death and within 240 weeks after injury. Industrial Accident Commission has jurisdiction' over controversies under the Act, and may modify original award. Principal contractor liable to employees of subcontractor unless the latter carries insurance. Employer cannot contract for exemption from lia- bility, and any settlement with injured employee must be approved by Com- mission. State Insurance Fund under management of Commission, who have power to fix rates of premiums to be paid by employers. Employer must se- cure payment of compensation by insurance in State Eund or in some au- thorized company, unless he proves to Commission his ability to carry his own insurance. Otherwise employee may sue as though Act did not apply, and employer deprived of three common law defenses. Insurer directly lia- ble to employee and may assume employer's liability and relieve him. Em- ployer cannot insure against liability for his own gross negligence or wilful rtiseonduct. COLORADO. Act applies to state, counties, etc., and public institutions. Also to all employers of four or more persons regularly engaged in same business who elect to come under Act, excepting employers, of domestic servants and farm or ranch labor. Other employers may do so by filing acceptance with In- dustrial Commission. Acceptance conclusively presumed unless written no- tice to the contrary filed before commencing business. It may be withdrawn by written notice filed sixty days before expiration of any year. Employer must post notices in place of business stating whether or not he accepts Act. Employee is subject to Act if he has notice that employer is subject to it, unless he gives notice to contrary. Persons employed casually, or not in employer's usual business not included. Employer not accepting Act de- prived of defenses of assumption of risks of business, negligence of fellow- servant, and negligence of employee. Employer accepting is subject only to liabilities in Act, and, as against employee not accepting, all legal de- fenses are open to him. Injury must be caused by accident arising out of 862 ABSTRACTS, WORKMEN'S COMPENSATION LAWS. and in course of employment, not intentionally self-inflicted. Insurance Fund from premiums paid by employers. Employments divided into classes and premiums for each fixed by commission. Employer while in default in payment deprived of benefits of Act. Employer must secure compensation either by payment of ptemium to Eund, or by insuring in authorized insur- ance company, or by furnishing satisfactory proof to Commission of finan- cial ability to pay compensation directly to employees. In either of two last cases notices to employees must be posted. Employer must furnish medical and hospital treatment, medicines, etc., for not exceeding 30 days or $100 in amount. Compensation: — None except as above for first two weeks. Temporary disability, 50% average weekly wages so long as disabil- ity is total, not exceeding $8, nor less than $5, or full wages if less than $5.00. Partial disability, 50% of impairment of earning capacity during continuance thereof, not exceeding $8 per week, or $2,080 in all. For tertaln specified mutilations time during which compensation is paid is fixed by schedule. Permanent total disability, 50% of average weekly wages for life; not exceeding $8 per week, nor less than $5, or full wages if less than $5. For death within two years after injury: — If no dependents, burial expenses not exceeding $75. To persons wholly dependent, 50% of average weekly wages, less any disability payments made before death, subject to maximum and minimum, for six years, but not more than $2,500, nor less than $1,000. To persons partly dependent the same for such portion of six years as Com- mission may determine, not exceeding $2,500. In case of death from other causes, td persons wholly dependent, any unaccrued balance of compensation for permanent disability, and similar provision for persons partly depend- ent. On remarriage of spouse without children lump sum equal fo one-half of unpaid balance of compensation; if dependent children such sum paid to them. Death benefits to dependents, non-residents of IT. S., one third those to residents, and not to exceed $1,000. Compensation reduced 50% when injury caused by failure to use safety, device; or by wilful failure to obey reasonable rule for safety; or intoxication. Notice with claim for compensation, must be sent to Commission within .80 days. If no notice aiid no payment vrithin one year, claim barred. CONNECTICUT. In actions for damages employer is deprived of defenses of contributory negligence, negligence of fellow employee and assumption of risk, but these provisions do not apply to employers of less than five employees, or of casual employees or outworkers,' nor to employers accepting the obligations of the Act. Acceptance by employer and em{)loyee respectively presumed until notice to the contrary is filed. If employee rejects the Act employer, not liable for compensation under it and~has all common law defenses. No compensation for injury caused by wilful and serious misconduct or intoxi- cation of employee. Employer of less than five employees may accept pro- visions of Act by written notice to employees and Compensation Commis- sioner and filing certificate of insurance company of insurance of his lia- bility. Employee deemed to accept, but either party may vrithdraw by writ- ten notice to the other and to Commissioner. Employer having work in his ABSTEACTS, WORKMEN'S COMPENSATION LAWS. §63 trade of business done on his premises by subcontractor liable to employees of latter. Employee having any physical defect which would impose on employer unusual hazard may, with approval of Commissioner, waive in ■writing compensation for any injury directly due to such defect. Injured employee must forthwith notify employer, who is bound to provide attend- ance of physician or surgeon and such medical or surgical aid or hospital service as latter may deem necessary. On failure to do so employee may provide same at employer's expense. No other compensation for first seven days, but if incapacity extends beyond four weeks compensation begins from date of injury. Compensation : 1. In case of death from injury within two years (a) $100 burial expenses, (b) To persons wholly dependent, one half average weekly wages, not more than $18 nor less than $5 for 312 weeks. (c) If none wholly dependent, to those partly dependent, weekly compensa- tion as above, but not more than amount contributed by deceased if more than $5. In case of death of widow or widower compensation continued to her or his dependents; in case of re-marriage, to other dependents of deceased employee. Compensation to minors ceases at 18 unless incapaci- tated. To alien dependents not residents of U. S. or Canada half of above amounts. 2. In case of total incapacity to work, one half average weekly wages, not less than $5 nor more than $14 during incapacity, but not exceed- ing 520 weeks. Loss of both hands and certain other mutilations presumed to cause total incapacity- 3. For partial incapacity, one half difference between average weekly wages before injury and earning capacity afterward, not exceeding $18 during partial incapacity, nor longer than 520 weeks. For certain specified mutilations, in addition to above compensation for total disability half average weekly wages, not more than $18 nor less than $5 for terms specified in schedule, in lieu of all other compensation. Written notice of claim for compensation must be made within one year. Written agreement between employer and injured employee as to amount of compen- sation made not earlier than seven days after injury may be approved by Commissioner and filed in of&ce of Clerk of Superior Court. If no agreement, award made by Commissioner after hearing filed as above. Award or agree- ment subject to subsequent modification. Employer must either furnish Com- missioner proof of solvency and ability to pay compensation, or furnish security, or insure his liability. In case of failure to do so injured employee or his representatives may elect within 30 days to bring action for damages, and employer deprived of common law defenses; directors of employing corporation or joint stock association jointly and severally liable for damages. Provision made for Employers' Mutual Insurance Associations of employers in same or similar business under State supervision, but employer may insure in other companies. Employer may agree with employees subject to ap- proval of Commissioner on substitute system of compensation, offering equal benefits. Delaware;. All employers and their employees presumed to accept provisions of Act unless notice given thirty days prior to injury or death. Employer not ac- cepting must post notice in shop etc., or serve notice on employee personally, and immediately file affidavit of posting or service with Industrial Accident 864 ABSTEACTS, WORKMEN'S COMPENSATION LAWS. Board; employee's notice by mail or personal service, and filing affidavit of mailing or service with the Board. Employer not accepting deprived of three common law defenses. Non-accepting employee of accepting employer subject to all legal defenses. Act does not apply to farm laborers, domestic servants, officers and servants of State, or any governmental agency, or their respective employers, nor to employment of less 'than five persons, nor to. persons casually employed and not in regular course of employer's business, nor to out workers. "Injury" means "only violence to the physical struc- ture of the body and such disease or infection as naturally results there- from when reasonably treated"; it does not include any injury caused by the wilful act of another directed against him by reasons personal to em- ployee and not as an employee, or because ' of employment ; nor disease or infection except as above. Unless employer has knowledge of injury no- tice must be given within fourteen days, but may be given within thirty days unless employer prejudicial by delay, or within ninety days if >rea- sonable cause for delay be shown. Unless there be knowledge or notice given within ninety days no compensation allowed. Agreement as to. com- pensation must be made or appeal to Board taken within one year after ac- cident, or of death. No compensation for injury resulting from intoxica- tion, or deliberate and reckless indifference to danger, or wilful intention to bring about injury or death of employee or of another, or wilful failure to use safety appliance, or to perform duty required by statute. Compensa- tion : — ^None for the first fourteen days, except medical and surgical attend- ance and hospital service not exceeding $75, but if disability continues for four weeks compensation from date of injury. In case, of death within one year, expenses of last sickness and burial, not exceeding $100. Fpr first 475 weeks of total disability 50% of wages, not less than $5 nor more than $15 per week, or full wages if less than $5, not exceeding in aggregate $4,000. For specified mutilations 50% of wages for periods specified in schedule. For other partial disability 50% of difference between wages before injury and afterwards, not exceeding $15 per week or for more than 285 weeks. For death resulting from injury: To child or children if there be no widow or widower, 25% of wages, with 10% additional for each child in excess of two, with maximum of 60%. To widow or vridower with no children 25% of wages; if with one child, 40%; with two children, 45%; with three children, 50%; with four children, 55%; with five children or more, 60%. If no widow, widower or children 20% to dependent father and mother or survivor of them. If none of foregoing, to dependent brother or sister 15% and 5% additional for each additional brother or sister, not exceeding maximum of 25%. Alien widows and chil- dren not residents of United States one half of amount for residents, and no alien widowers, parents, brothers or sisters, nonresident entitled to compensa- tion. Employer must insure in some company approved by Industrial Accident Board or furnish Board with satisfactory proof of financial ability to pay compensation directly; in latter case security may be required. Employer not insuring deprived of three common law defenses, is subject to fine, and may be enjoined from doing business. Employers may form mutual insurance associations, and may enter into agreement with employees for substitute system of compensation, subject to approval of Board. ABSTRACTS, WORKMEN'S COMPENSATION LAWS. 865 HAWAII. Act applies to all industrial employments; but no compensation for injury- caused by employee 's wilful intention to injure himself or another, or by his intoxication. Compensation: — For death within six months, burial ex- penses, $100, and payments to following persons, if dependent, viz: to widow or widower without children 40% of weekly wages; if with one or two children, 50%; if with three or more, 60%; if no widow or widower, then to child or children 30%, and 10% additional for eacl^ child in excess of two, with maximum of 50%; if none of ioregoing, to father or mother, 40%, or if only partially dependent, 25%, if both dependent, above amounts to be divided equally; if no parents, same amount to grandparents; if no grandparent, to grandchild, brother or sister 25%, and 5% additional for each such additional dependent, with maximum of 40%. Payments only to dependents residing within U. S. Payments to widow until death or re- marriage not exceeding 312 weeks, to widower during disability or until re-marriage not exceeding 312 weeks; payments to child until 16, and for 104 weeks additional if incapable of self-support and unmarried; to other de- pendents above named during dependency, not exceeding 312 weeks. Wages to be considered as not more than $36 per week, nor less than $5. No com- pensation in excess of $5,000. During disability employer to furnish sur- gical, medical and hospital services, etc., not exceeding $150. For total dis- ability — after first seven days — 60% weekly wages, not more than $18 nor less than $3 per week, or full wages, if less than $3 and $3 if disability be permanent, but not for longer than 312 weeks, nor exceeding $5,000; for partial disability 50% of difference between wages before accident and probable earnings afterwards, but not more than $12 per week, or exceed- ing $5,000 in all; for permanent partial disability due to specific mutila- tions, 50% of wages for terms stated in schedule in lieu of all other com- pensation; in case of serious facial or head disfigurement amount to be awarded by Commission, not exceeding $5,000. Notice of injury must be given to employer as soon as practicable, and claim made within three months, or in case of death, within three months thereafter, but no limit to minor or person mentally incapacitated until after appointment of guardian or next friend. If parties agree as to amount of compensation, agreement to be filed with Industrial Accident Board ; otherwise amount fixed by com- mittee of arbitration. Agreement or award enforced by decree of circuit court. Employer must secure compensation by insurance in some authorized company, or by depositing with territorial treasurer security satisfactory to the Board, or by furnishing satisfactory proof of financial ability to pay claims directly; failure to do so subjects him to penalty and injunction against carrying on business. IDAHO. Act mandatory, passed in exercise of police and sovereign power of State. Applies to all employees, including those of the State and municipalities, except those elected by popular vote or receiving salaries in excess of $2,400 ; but not to agricultural pursuits, household domestic service, casual employ- ment employment by charitable organizations, or. of outworkers, or of 55 866 ' ABSTEACTS, WORKMEN'S COMPENSATION LAWS. members of employer's family dwelling in his house, unless employer and employees agree in writing filed with the Board. Such agreement if made' may be terminated by either party on sixty days' notice. No compensa- tion for injury caused by employee's wilful intention to injure himself or another, or by his intoxication. With approval of Board employer may agree with employees for substituted system of compensation conferring equal benefits. Compensation: — For death within two years, burial ex- penses $100, and to following persons, if dependent, percentages oi weekly wages, viz : to widow or widower without children 45% ; if with child or children 55%; if no widow or widower, 25% for one child and 10% for each additional child, not exceeding 55% ; to parents, if one wholly depend- ent 25%, if both 20% each, if partially dependent proportionate amount at discretion of Board; payments to parents not to exceed, in addition to. amount payable to widow or widower and children, 55%; to brothers, sis- ters, grandparents, and grandchildren — if one wholly dependent, 20%,_ if more than one 30% ; if none wholly dependent, 10% divided among partial dependents; but not exceeding, with payments to persons above having prior claims, 55% ; if no dependents $1,000 to be paid to Industrial Administra- tion Fund. Payments to widow until death or remarriage; to widower during disability or until re-marriage; in neither case exceeding 400 weeks; to children until 18, and if incapable of self-support and unmarried for ad- ditional terra not exceeding 400 weeks; to others above named during de- pendency, not exceeding 400 weeks. Tn case of alien dependents 50% of amount due under Act — and under certain conditions the whole — ^payable to Industrial Administration Fund. Death benefits subject to maximum of $12 per week and minimum of $6, or whole wages, if less than $6. Em- ployer to provide reasonable medical, surgical, or other attendance, medicines, etc., at time of injury, and for reasonable time thereafter, but employer and employee may waive tlese provisions and make agreement for hospital bene- fits under certain restrictions. For total disability, after first seven days, 55% weekly wages, not more than $12, nor less than $6, or full wages if less than $6, for not exceeding 400 weeks, and thereafter $6 per week during disability. For partial disability not exceeding 150 weeks, 55% of differ- ence between weekly wages before accident and those employee will probably be able to earn afterwards. Foi* certain mutilations 55% of wages for terms specified in schedule. Notice of injury must be given to employer as soon as practicable, and claim made within one year from date of injury or death. No limit to minors or persons mentally incompetent until ap- pointment of guardian or next friend. Employers, except State and muni- cipalities must insure compensation by insurance in State Insurance Fund, or by depositing with State Insurance Manager surety bond on guaranty contract with authorized company, and post notices in place of business that he has complied with law as to compensation; failure so to insure subjects him to penalty and injunction against carrying on business. Insurance Fund formed by premiums paid by employers based on classification of dif- ferent kinds of business and relative hazards of each. ABSTRACTS, WORKMEN'S COMPENSATION LAWS. 867 ILLINOIS. Employer may elect to be bound by Act by filing notice with Industrial Board, and bound from year to year thereafter unless ho files notice sixty days before expiration of year, and gives notice to employees. Employee bound unless he gives notice, — employer then entitled to common law and statutory defenses. In certain "extra hazardous" occupations employer presumed to have elected to pay compensation under the Act unless he files notice to the contrary, in which case he is deprived of common law defenses. Act does not apply to casual employees or those not in usual business of employer. Compensation. — 1. In case of death, (a) to widow or dependent children four times average annual earnings, but not less than $1,650 or more than $3,500; said amounts being increased to $1,750, and $3,750, re- spectively in case of a widow with one child under 16, and to $1,850 and $4,000 in case of widow with two or more children, while children are under 16; (b) if no widow or dependent children same payment to totally depend- ent parent; (c) if none, to' dependent parent, grandparent or grandchild such proportion of above sum as such dependency bears to total depend- ency; (d) if none of foregoing, to dependent collateral heirs' such per- centage of above sum as amount contributed by deceased during past two years bears to whole earnings. Any disability payments paid before death to be deducted from above benefits, (e) If no dependents, $150 for burial expenses. 2. For injuries not fatal medical, surgical and hospital services and supplies not exceeding $200 for 8 weeks. 3. For temporary total inca- pacity for work, more than six days, 50% earnings, not less than $6 nor more than $12 while total incapacity lasts, not exceeding amount of death benefit. (4) For serious and permanent disfigurement of hands, head or face, amount not exceeding one quarter of death benefit, provided employee is entitled to no other permanent disability compensation. 5. For loss of limbs and other parts of body, in addition to compensation. for temporary total incapacity, 50% average wages for terms specified in schedule. For other partial incapacity 50% of difference between earning power before and after injury, subject to maximum and minimum as above. 6. For com- plete permanent disability 50% of earnings, not less than $6, nor more than $12, up to amount of death benefit, and thereafter pension for life equal to 8% of death benefit, but not less than $10 per month. The 50% in all above cases increased 5% for each child under 16, up to 65%, and minimum and maximum increased to $6.50 and $13 for one child, to $7 and $14 for two children, and to $7.50 and $15 for three or more children. In ease of death f roni injury before payments equal death benefit, difference payable to widow and children, but not less than $500. In no case compensation to exceed 50% of average weekly wage or exceed $12 per week, or in case of complete disability extend over 8 years. Industrial Board has jurisdiction over all controversies and decision may be filed and enforced by decree of Court. Employee cannot waive provisions of Act without approval of Board, and any settlement made within seven days after accident presumed to be fraud- ulent. Employer must within ten days after demand of Board either (1) file statement showing financial ability to pay compensation, (2) furnish bond or security, (3) obtain insurance, or (4) make other provision to se- 868 ABSTRACTS, WORKMEN'S COMPENSATION LAWS. cure compensation; — otherwise employee may elect between compensation under Act and damages at law. INDIANA. Every employer and employee, except agricultural laborers and domestic servants, and others only casually employed, presumed to accept provisions of Act unless notice to contrary has been given thirty days before injury, or at time of employment if less than thirty days. Employers ' notice must be posted in shop, etc., or given personally; employee's by registered letter, or given personally. Employers above excepted may come under Act by giving like notice. Employer electing not to operate under Act deprived of three common law defenses. Defenses open to employer accepting as against employee not accepting. Employer to furnish medical and surgical attendance and hospital services for thirty days after accident, and for additional thirty days if ordered by Industrial Board. No other com- pensation for first seven days. Compensation: — For death within 300 weeks, — burial expenses, not exceeding $100; to persons wholly depend- ent 55% of average weekly wages for 300 weeks, or such part of 300 weeks as compensation has not been paid for disability; to persons partially de- pendent proportion of said amount that amount contributed by decease were to his whole earnings. Dependence of widow or widower and children living with such widow or widower terminates on re-marriage. For total disability 55% of average weekly wages during such disability, not exceed- ing 500 weeks. Partial disability, one half difference between average weekly wages before injury and actual wages afterwards, for not exceeding 300 weeks. For certain specified injuries 55% average weekly wages for periods specified in schedule. No compensation for injury due to self- inflicted injury, commission of felony, or misdemeanor, wilful misconduct, intoxication, wilful failure to use safety appliances, to obey reasonable ;^osted rules, or to perform duty required by statute. Injured employee unjustifiably refusing employment suitable to his capacity not entitled to compensation during refusal. Employee, must give notice of injury to employer within thirty days, unless excused by Industrial Board, and claim must be filed with Board within two years after injury or after death. Every employer must insure his liability in some authorized company, or satisfy Board of his ability to pay compensation directly. Provision is also made for Mutual Insurance Association under control of Board. Subject to approval of Board employer may agree with employees for substitution of different system of compensation. IOWA. Act compulsory on State and Counties and other public corporations, and acceptance presumed as against all other employers unless notice is given to employees and filed with Industrial Commission. Does not apply to domestic servants, farm laborers, or persons casually employed and not in employer's trade or business. Employer rejecting Act deptived of common law defenses except wilful negligence or intoxication of employee. If em- ployee rejects the Act, above defenses open to employer, except that "as- sumed risk" will not apply when employer fails to furnish safety devices required by law. Employer cannot relieve himself by contract from obliga- tion. No compensation payable until after notice, which should be given ABSTRACTS, WORKMEN'S COMPENSATION LAWS. 869 ■within 15 days. If no notice given or knowledge o£ accident obtained by employer within 90 days no compensation allowed. Compensation: — 1. For not exceeding four weeks, medical and hospital services and supplies to $100, and to $100 additional when ordered by Industrial Commissioner. 2. In case of death: (a) expenses of last sickness and burial $100. (b) To persons wholly dependent, 60% average weekly wages, not less than $6 nor more than $15 per week for 300 weeks, (c) If none wholly dependent, then to partial dependents the proportion of above payment that amount contributed by deceased to such dependents bears to whole earnings. I'or disability, no compensation for first- two weeks, except for mutilations speci- fied in schedule hereinafter referred to, but in case of continued disability payments increased by two thirds for fifth to seventh week inclusive over regular rate hereinafter specified. 3. In case of temporary disability — After two weeks, 60% of average weekly wages not less than $6 nor more than $15, or the whole if wages less than $6, during disability, not exceeding 300 weeks. 4. In case of permanent total disability — same as above, but for 400 weeks. 5. In case of permanent partial disability 60% of daily wages for periods varying from 7 to 200 weeks as per schedule. Payments to widow having no dependent children cease on re-marriage. Periodical payments may be commuted to lump sum by district court. "Personal in- jury ' ' under the Act does not include disease, unless resulting from injury, nor injury caused by wilful act of third person directed against employee for reasons personal to latter or because of his employment. Payment of premiums for liability insurance by employee "forbidden, but arrangements between employer and employee for additional benefits may be approved by Commission. Industrial Commission has jurisdiction over working of Act. — Decisions may be filed in District Court and enforced by judgment. Em- ployer required to insure his liability in organization approved by Commis- sion and provisions made for Mutual Insurance Associations of groups of employers. Employer failing to insure liable to injured employee as though he had rejected Act, and bound to post notice to that effect where work is carried on. KANSAS. Act applies only to trade or business on, in or about a railway,. factory, mine or quarry, electric, building or engineering work, laundry, natural gas plant, county and municipal work, and processes requiring use of dangerous explosives or inflammable materials, all of which are declared to be espe- cially dangerous, but not including agriculture, nor employers of less than five workmen continuously employed for a month, except in mines. Em- ployers in other industries may elect to come under provisions of Act by filing notice with Secretary of State. Employers and their employees in such business presumed to accept Act unless they file notice with Sec- retary of State. Employer not accepting, not entitled to the three com- mon law defenses. If he accepts and employee does not, these defenses are open to him unless accident was caused by him or his agents, — wilful or gross negligence. In this last event employee may elect between compensation under Act and damages at law. Employer not liable for injuries not dis- abling employee from earning full wage.'? for one week, nor for injuries re- 870 ABSTRACTS, WORKMEN'S. COMPENSATION LAWS. suiting from deliberate intention, or from wilful failure to use safeguards furnished, or solely from deliberate breach of statutory regulations affecting safety, or from intoxication. Employer must pay cost of reasonably neces- sary medical, surgical and hospital treatment and supplies, not exceeding $150, for not exceeding 50 days. Compensation: — 1. In case of death, (a) To persons wholly dependent, three times earnings for preceding year, not less than $1,400 nor more than $3,800 ; and not exceeding $750 if no depend- ents residing in XT. S. or Canada, (b) If only partial dependents a pro- portional part of above, (c) If no dependents, expense of burial not ex- ceeding $150. 2. For total permanent disability, payment after first week during such disability of 60% of average weekly earnings, not less than $6, nor more than $15 per week, but not for more than eight years. 3. For temporary total disability, the same during such disability. 4. For perma- nent partial disability resulting from certain specified multilations, a lump sum measured by 50% of average weekly earnings for periods set forth in schedule, but not less than $6 nor more than $12 per week. For injury not covered by schedule, during period of partial disability not exceeding eight years, 60% of difference between earnings before and after injury. Pay- ments not assignable or attachable: Notice of accident within ten days, and claim for compensation within three months, or in case of death six months. Want of notice no bar unless employer is prejudiced thereby. Agreements or awards of arbitration filed in Court and enforced by judg-. ment. If no agreement or arbitration, claim may be enforced by action in Court. Employer may witli consent of Attorney-General contract with workmen for different scheme of compensation conferring equal benefits. KENtUCKT. Act applies to employers of six or more persons in any of twenty-two specified classes of industries, including mining, quarrying, logging, rail- roads and telegraphs, tunnel and sewer work, building, and substantially all kinds of manufacturing and similar occupations, but not to domestic or agricultural service, to persons casually employed, or to those employed wholly out of th^ State. Employers and employees in other industries may, bn special application, also take advantage of Act. Industries specified may be replassified and others added by Workmen's Compensation Board. Employer accepting Act not liable for injury caused by his own negligence or that of his agents or servants. Employee conclusively presumed to ac- cept compensation under Act and waive rights of action at law if he con-, tinues to work after notice that employer has accepted the Act, but prior to receiving injury he may, by written notice to employer and copy sent to Board, waive benefits of Act and withdraw any previous acceptance. In such case all common-law defenses are open to employer. Employer not electing to come under Act, or in default in payment of premiums, liable for injuries caused by his neglect or default, or that of his agents or servants, and deprived of defenses of fellow servant, assumption of risk and con- tributory negligence. Compensation Fund formed by premiums fixed by Board for each class of industries. Amount of premiums based on gross amount of employer's annual pay-roll and paid in monthly instalments. Compensation: — 1. Expense of medical attendance, nursing, hospital service ABSTRACTS, WOBKMEN'S COMPENSATION LAWS. 871 and medicines not exceeding $100. 2. In case of death, funeral expenses not exceeding $75. 3. Eor temporary total disability, 50% of average weekly, wages, not exceeding $12 per week, nor less than $5, or full wage if less than $5, but in no case for more than six years or to exceed in all $3,750. 4. For partial disability, 50% of impairment of earning capacity during continuance thereof, not exceeding $12 per week, or aggregate sum of $3,750. 5. For certain specified mutilations, 50% of weekly wages, for various times as per schedule. 6. For permanent total disability, 50% of weekly wages until death, not exceeding $12 per week, nor less than $5 or full wages if less than $5. 7. In case of death from injury within two years (a) if no dependents medical and funeral expenses as above, (b) To persons wholly dependent, 50% of average weekly wages for remainder of period until six years from date of injury, not exceeding in all $3,7B0, nor less than $1,500. (c) To persons partly dependent 50% of average weekly wages for such portion of six years as Board may determine, not exceeding in all $3,750. No payment on account of self-inflicted injury or injury caused by wilful misconduct or intoxication. Only expense of medical attendance, etc., al- lowed for first week. Applications for compensation must be made within one year. LOUISIANA. Act obligato'ry on the State, cities, townships, etc., and incorporated pub- lie boards and commissions. Applies also to employers in certain "hazard- ous" occupations, and to any other occupations agreed by parties or de- termined by Court to be hazardous. Employers and employees in other oc- cupations may by agreement in writing come under Act. Contractor liable to employee of subcontractor as though directly employed by him. Employer and employee bound by Act only if they so elect, but election presumed unless notice to the contrary be given 30 days before injury. Election may be terminated by either party by like written notice. In action by employee electing Act against employer not electing, employer deprived of defenses of assumption of risks incident to employment, negligence of fellow employee and contributory negligence; and injury presumed, prima facie, to be result of employer's negligence. In action by employee not electing Act against employer electing, all defenses open. Act applies only to "injuries by vio- lence to the physical structure of the body, and such diseases or infections as naturally result therefrom." Any other form of disease or derangement is expressly excluded. No compensation for injury caused by employee's wilful intention to injure himself or another; by his intoxication; by deliberate failure to use guard or protection against accident provided for him; or by deliberate breach of statutory regulations affecting safety. Notice of injury must be given within 15 days or in case of death within thirty days. Claim within six months, and proceedings taken within one year. Employer must post notice in place of business that in case of acci- dental injury or death claim for compensation must be made within six months, or no payment made; otherwise time for giving aotice of injury extended to twelve months. Agreement for settlement must be in writing, approved by Court and entered as its judgment. If no agreement, proceed- ings in Court. Compensation: — Employer must furnish reasonable medical. 872 ABSTRACTS, WORKMEN'S COMPENSATION LAWS. surgical and hospital services and medicines, not exceeding $150. No other compensation for first week, nor in any ease until employer is notified, but if disability continues six weeks compensation for first week shall be paid. For temporary total disability, 55% of wages during disability, not beyond 300 weeks. Permanent total disability 55% of wages, during disability, not beyond 400 weeks. Partial disability 55% of difference between wages at time of injury, and those employee is able to earn afterwards. For cer- tain specified mutilations, 55% of wages during times specified in schedule. For death within one year, burial expenses not exceeding $100, and pay- ments for 300 weeks, as follows: To widow or widower without children, 25% of wages; with one child, 40%; with two or more children, 55%. To one child, without living parent, 25%; two children, i0%; three or more children, 55%. If no widow, widower or child, to dependent father or mother, 25% of wages, or to both, 55%. If none of foregoing, to dependent brother or sister or other member of family, 25% for one, and 10% for each additional one up to 55%. Where individual allowances would bring percentage above 55, proportionate abatements to that amount. Payments to any beneficiary cease on death, or on re-marriage of widow or widower, or on widower becoming capable of self-support, or on minor reaching age of 18. MAINE. Act applies- to State, counties, etc., towns which vote to accept its provi- sions, and employers of more than five workmen in same business who elect to become subject to its provisions. Employees in domestic service, agricul- ture, or logging, and those employed casually, or not in employer's regular business, not included. Employers not assenting deprived of three com- mon-law defenses. Employer must file with Industrial Accident Commission written assent, together with copy of industrial accident insurance policy in a Casualty Insurance Company authorized to do business in the State, and stamped with approval of Insurance Commissioner; or satisfy Commission of his solvency and financial ability, and deposit cash, securities or bond. Or, employer may, with approval of Commission, continue any system of compensation used by him Jan. 1, 1915, provided its benefits equal those under the Act and no contributions are required from employees unless for additional benefits. Notice of employer's acceptance must be posted in fac- tory, etc. Employee deemed to assent unless at time of hiring he gives no- tice in writing, and files copy with Commission within ten days, or within ten days after notice of employer's acceptance, the same to continue in force for one year, and from year to year, unless within 60 days of expiration of any year written claim of common-law rights of action is filed with Commis- sion, and notice given to employer within ten days' thereafter. Compensa- tion: None for injury occasioned by wilful intention of employee to injure himself or another, or by intoxication unless employer knows of habit of intoxication. For first two weeks, medical and hospital service and medi- cines, not exceeding $30, unless in case of major surgical operation. For death — To persons wholly dependent, one-half average weekly wages, not more than $10, nor less than $4, for 300 weeks; and proportionate amounts if only partial dependents. If no dependents, expenses of last sickness and ABSTRACTS, WOKKMEN'S COMPENSATION LAWS. 873 iDurial not exceeding $200. For total incapacity, one-half average weekly wages, not more than $10, nor less thaji $4, for not exceeding 500 weeks, nor $3,000. For partial incapacity, one-half of difference between wages before and after injury, not more than $10, nor for more than 300 weeks. For certain mutilations amounts as for total disability for periods specified in schedule, and afterwards during continuance of partial incapacity — not more than 300 weeks in all. Written notice stating nature, time, place, and cause of injury and name and address of. person injured must be given to employer within 30 days, and claim made within one year after injury, or after death or removal of physical or mental disability. Agreement of par- ties as to compensation filed with and approved by Commission, or decision of Chairman of Commission, filed with Clerk of Courts of the county has effect of judgment. Within two years order for compensation may be modi- fied on proof of change in employee's condition. Unless agreement or peti- tion is filed within two years claim is barred. MARYLAND. Act obligatory on employers in certain "extra -hazardous" employments, of which 42 classes are specified, including railroad, telephone, telegraph, electric power and light, sewer and sub-way work, lumbering, quarrying, ship-building, and substantially all kinds of mill and factory work ; but em^ ployers and employees in employments not "extra-hazardous" may jointly file acceptance and come under Act. Act does not apply to farm laborers, domestic servants, country blacksmiths, wheel-wrights, or similar rural em- ployments, nor to casual employees, those employed wholly out of the State, or whose salaries exceed $2,000. Covers only accidental injuries, and such diseases and infections as unavoidably result therefrom, but not those occa- sioned by wilful intention of employee to injure himself or another, or by his intoxication. If employer fails to secure compensation for employee, latter may claim compensation under Act or maintain action for damages, but in latter case employer deprived of three common-law defenses. In case of injury by deliberate intention of employer, employee has same elec- tion. Payments made from State Accident Fund formed from 'premiums paid by employers, and administered by State Industrial Commission. In- dustries classified, and premiums fixed by Commission according to risk in each class. Employer may secure compensation by insuring in State Acci- dent Fund, or in some authorized insurance company, or by furnishing to satisfaction of Commission proof of financial ability to pay compensation directly to employees; in latter case Commission may require deposit of se- curities. Employer must notify Commission which form he elects, and ob- tain approvial. Compensation: In all cases, medical attendance, medicines, etc., not exceeding $150. For permanent total disability, 50% average weekly wages during continuance of total disability, exclusive of first week, not more than $12, nor less than $5, or full wages if less than $5, not ex- ceeding $5,000. For temporary total disability, 50% average weekly wages during continuance, subject to above maximum and minimum, for not more than 6 years, or more than $3,750. For permanent partial disability, in case of certain mutilations, 50% average weekly wages, not exceeding $12 nor 874 ABSTRACTS, WORKMEN'S COMPENSATION LAWS. more than $3,000 in all, for periods specified in schedule: in other eases 50%' of difference between wages before and after accident, not exceeding $12, during partial disability but not exceeding in all $3,000. For temporary par- tial disability 50% of difference between wages before injury and after- wards, during partial disability, not exceeding $3,000. Tor death within two years: funeral expenses not exceeding $75, but if no dependents only if employee does not leave enough to pay same; to persons wholly depend- ent, 50% average weekly wages for 8 years, not more than $4,250, nor less than $1,000; to those partly dependent 50% wages for such part of 8 years as Commission may determine, not exceeding $3,000. No compensa- tion but medical attendance, etc., for first two weeks. Notice must be given to employer within 10 days, or in case of death within 30 days. Application for compensation with certificate of attending physician, if any, must be filed with Commission within 30 days. In case of death, claimant must also file proof of relationship. MASSACHUSETTS. Act provides for Employers' Insurance Association consisting of not less than 100 members employing not less than 10,000 employees, and subject to State supervision. It applies only, to employers who become subscribers to such Association, or who insure their liability in some insurance or casualty Company. Other employers deprived of the three common law defenses. Act does not apply to domestic servants or farm laborers, or those casually employed or whose employment is not in usual business of employer. Em- ployee held to waive right of action at common law unless he gives notice, and cannot recover for injuries occasToned by his serious and wilful mis- conduct. If injured by serious and wilful misconduct of employer or superintendent may recover double compensation. Compensation, to be paid by Insurance Association or other insurer: — 1. In case of death, (a) to persons wholly dependent, 66%% of average weekly wages, not less than $5 nor more than $10 for 500 weeks, but not more than $4,000. (b) If only partial dependents, the proportion of above payment that amount contributed by deceased to such dependents bears to his whole earnings. In all cases expenses of burial not exceeding $100 to be charged as part of compensation to dependents, if any. 2. In case of total incapacity for work, weekly compensation equal to 66%% of average weekly wages, not less than $7 noT more than $16 for not more than 500 weeks, or more than $4,000. 3. During partial incapacity weekly compensation equal to 66%% of difference between average weekly wages before and after injury, but not more than $16 per week, or more than $4,000, and in addition thereto in case of loss of limbs and certain other specified mutilations certain weekly payments for limited times. During first two weeks after injury or time of incapacity, and in unusual cases for a longer period, necessary medical and hospital sorvices and medicines. No other compensation for first ten days. Notice of injury as soon as practicable, unless employer or Association has knowledge thereof. Claim within six months or in case of death or incapacity within six months after death or removal of incapacity. Failure to make claim within that time not a bar if occasioned by mistake or other raesonable cause. No agreement by employee to ABSTEACTS, WORKMEN'S COMPENSATION LAWS. 875 waive right to compensation valid, and payments not assignable or subject to attachment. State Board of Labor and Industries has jurisdiction over settlement of claims. Arbitration provided for subject to revision by full Board. Amounts of weekly payments subject to subsequent modifica- tion, and after 6 months payment, may in special cases be commuted to lump sum. Decisions of Board may be filed in Superior Court and decree entered thereon. MICHIGAN, Act applies to the State, counties, etc., and to employers who file accept- ance with Industrial Board. All other employers deprived of the three common law defenses except as against employees electing not to be subject to Act. Act does not apply to domestic servants or farm laborers or to per- sons casually employed and not in course of employer's usual business. Compensation: — 1. During first three weeks medical and hospital services and medicines. 2. In case of death, (a) To persons wholly dependent, weekly payments equal to half of average weekly, wages, not less than $4 nor more than $10 for 300 weeks, (b) To persons partly dependent same pro- portion of the above that the amount contributed by the deceased bore to his whole earnings, (c) If no dependents, expenses of last sickness and burial, not exceeding $200. 3. In case of total incapacity weekly compensa- tion equal to one-half of average weekly wages, not less than $4i nor more than $10 for 500 weeks, not exceeding $4,000. 4. In case of partial inca- pacity, weekly compensation equal to one-half of difference between average weekly wages before and after injury, not more than $10 per week for 300 weeks. For loss of a limb and other specific mutilations half of average weekly wages for terms varying from 7 to 200 weeks, subject to maximum and minimum limitations as above. In case of death before expiration of term for weekly payments, dependents receive difference between full death benefit and amounts already paid for disability. Payments begin on 15th day after injury, but if disability continues for 8 weeks then from date of in- jury. Unless employer has actual knowledge of injury notice must be given within three months. Claim must be made within six months, or within six months after deatl. or removal of incapacity. No- agreement by employee to waive rights valid. Payments not assignable or liable for debts. Agree- ments for settlement subject to approval of Accident Board. Disputed claims referred to arbitration subject to appeal to the Board. Decisions of the Board may be filed in Circuit Court and judgment entered thereon. Em- ployer may by furnishing proofs of solvency to Board agree to make pay- ment directly to employees, or may insure his liability in an Employer 's Lia^ bility Company or Insurance Association. Provision is made for Accident Fund in nature of mutual insurance by five or more employers of 3,000 employees under supervision of Commissioner of Insurance. MINNESOTA. Employer not electing provisions of Act deprived of three common law defenses except as to wilful negligence of employee. Act does not apply to domestic servants, farm laborers or persons casually employed and not in usual business of employer. Employer and employee presumed to accept 876 ABSTRACTS, WORKMEN'S COMPENSATION LAWS. Act unless notice is given. No liability for injuries self-inflicted or caused by intoxication. Compensation: — 1. Medical, surgical and hospital services for 90 days, not exceeding $100, or, on application to Court, $200. 2. In case of death, to widow 40% of monthly wages, and for one minor child 10%, for two or three children 20% and for four or more 26%% in addition. On re-marriage, widow without children one-half of compensation unpaid; if children, her share goes to them. For dependent orphan 45% of monthly wages, and 10% additional for each additional orphan — not exceeding 66%%. For dependent husband and no child 30% of monthly wages. If no widow, children or husband, to one dependent parent 35% of monthly wages, or to two such 45%. If none, to dependent brother, sister, grandparent, mother- in-law or father-in-law, 30%; if more than one dependent relation 35%. — Partial dependents in proportion to proportionate amount of earnings con- tributed by deceased. Compensation to dependents subject to maximum of $15 per week, and minimum of $6.50, or full wages if less than $6.50, dur- ing dependency, not exceeding 300 weeks. In all cases of death from, injury expenses of last sickness and burial not exceeding $100. 3. For temporary total disability 66%% of wages, subject to maximum of $15 and minimum of $6.50, or full wages if less than $6.50, during disability, not exceeding 300 weeks. 4. For temporary partial disability 66%% of difference between wages before accident and those employee is able to earn afterwards, during such disability, not exceeding 300 weeks. 5. For permanent partial disabil- ity from certain mutilations 66%% of wages for times specified in schedule ; in other cases 66%% of difference between wages before accident and those employee is able to earn afterwards, subject to maximum of $15 per week, \ for 300 weeks. 6. For permanent total disability 66%% of wages, subject to maximum of $15 and minimum of $6.50, or full wages if less than $6.50, for not exceeding 550 weeks, but in all such cases drawing more than $6.50 per week payments after first 400 weeks reduced to $6.50 per week for re- mainder of term, — the total compensation not to exceed $5,000. In case of death aft^r disability, disability payments already made deducted from death benefit. In case of temporary disability no compensation, except medical treatment, etc., allowed for first week, nor in any case unless em- ployer has actual knowledge of injury or is notified in writing within 14 days. No compensation recoverable until such knowledge or notice. Notice may be given later unless employer is prejudiced by delay. If no knowl- edge or notice 'within 90 days, claim for compensation barred. Action or proceeding by employee to recover compensation must be brought within one year after employer has made report of accident to Commissioner of Labor. Employer may insure his liability, and employee may then" make claim directly upon insurer. MISSOURI. Every employer and employee, including municipal and other organiza- tions, presumed' to accept provisions of Act unless, prior to accident written notice be filed with Workmen's Compensation Commission. Employer re- jecting Act must post notices on hie premises, and emplbyee rejecting must give Written notice to employer. Employer rejecting Act deprived of three ABSTEACTS, WORKMEN'S COMPENSATION LAWS. 877 common law defenses, but they are allowed to employer accepting, as against employee rejecting. Act does not apply to farm labor, or domestic servants, including family chauffeurs, or to persons casually employed, or to out- workers, or to employer of less than five employees, unless both employer and employees elect to be bound, nor to employees whose average annual earnings exceed $3,000. "Injury" defined as "violence to physical structure of the body and such disease and infection as naturally results therefrom, but not including occupational disease, or contagious disease contracted during em- ployment. Persons having their 'usual business done under contract on their premises liable as employers. Compensation: Medical, surgical and hos- pital treatment, nursing and medicines for first eight weeks after injury, not exceeding $200. No compensation when death or disability due to un- reasonable refusal to submit to treatment. No other compensation for first seven days unless disability lasts six weeks. For temporary total disability 66%% of employee's average earnings for not more than 400 weeks, not less than $6, nor more than $15 per week, or full wages if less than $6. Tor temporary partial disability 66%% of difference between average earnings before accident and those employee is capable of earning afterwards, not exceeding $12 per week. For permanent partial disability, in addition to all other compensation 66%% of average earnings, not less than $6 nor more than $15, for periods specified in schedule. For permanent disfigurement of face and head, not exceeding $750. Special provisions as to hernia. For permanent total disability, 66%% of average earnings for 240 weeks, and afterwards 40% for life, not less than $6, nor more than $15 per week. In case of death, burial expenses, not exceeding $100 and expenses of last sick- ness not exceeding $200; to total dependents two-thirds average annual earnings for preceding year, not less than $6, nor more than $15 per week for 300 weeks; if no total dependents, to partial dependent? part of fore- going death benefit in proportion to contribution to partial dependents made by deceased in his lifetime. Employer must insure his liability in some author- ized insurance carrier unless he satisfies Commission of his ability to carry liability directly. Insurer primarily liable to employee. Employer must notify Commission of accidents within ten days. Claim must be filed v/ith Commission within six months. MONTANA. Act applies to "all inherently hazardous works and occupations within the State"; those specifically mentioned including, besides railroads, tele- graphs, etc., nearly every kind of mechanical or manufacturing industry. Domestic servants, farm laborers and persons casually employed are not in- cluded. Employer not electing to come under Act deprived of three com- mon law defenses. Employer assenting must elect by which one of three compensation plans he will be bound, and notify Industrial Accident Board. Election made presumed to continue from year to year unless notice of •withdrawal is filed with Board not less than thirty or more than sixty days before expiration of fiscal year, which begins July 1st. Employee bound by employer's election, unless written, notice be given to employer and filed with Board. Under plan No. 1, employer, on satisfying Board of his finan- 878 ABSTRACTS, WORKMEN'S COMPENSATION LAWS. cial ability, may settle c.irectly with employee, but Board may require se- curity. Under plan No. ' he may procure and file with Board policies of insurance for such amoun,. \ as Board may from time to time direct. Under plan No. 3 each employer pays annually to the Industrial Accident Board a certain percentage of his annual pay-roll, the percentage ill each industry being fixed in accordance with a classification of industries, of which 26 are specified in the Act. Where public corporation or contractor for such cor- porate is employer plan No. 3 obligatory on employer and employees. Em- ployers and employees in non-hazardous industries may by joint election ac- cept provision of plan No. 3. Term "injury," as used in Act, defined as one "resulting from some fortuitous event, as distinguished from the con- traction of disease. Compensation: — During first two weeks, only medical and hospital services and medicines, not exceeding $50. In case of death, percentages of wages varying from 8.0% to 50% to different classes of bene- ficiaries and dependents, not less than $6 nor more than $12.50 per week, or full wages if less than $6, for not exceeding 400 weeks. In case of death within six mouths burial expenses not exceeding $75 in addition. For tem- porary total disability, 50% of wages, subject to above maximum and mini- mum for not exceeding 300 weeks. Tor permanent total disability same compensation for not exceeding 400 weeks, and thereafter during disability $5 per week. For partial disability one-half difference between wages be- fore and after injury, not exceeding one-half the maximum compensation for total disability, or 75% of compensation for total loss of member causing partial disability, for not exceeding 150 weeks in case of permanent partial disability and 50 weeks in case of temporary partial disability. For certain, specified injuries 50% of wages, subject to same maximum and minimum, for periods specified in schedule. Payments to non-residents of U. S. not ex- ceeding 50% of those to residents. Notice of accident not resulting in death must be served on employer or insurer within 60 days, unless latter has actual knowledge. All claims must be presented within six months after accident. There is a special act providing for State accident insurance of coal miners by assessments paid l?y mine owners. NEBRASKA. Act applies to the State and other governmental agencies, and to all em- ployers of persons in regular trade, business or profession. It does not apply to employers of domestic servants or farm laborers, or of persons casually employed, or not in regular business of employer, nor to persons working on employer's materials at their own homes or on premises not under employer's control. Other employers may by agreement; with em- ployees accept provisions of Act. Both employer and employee presumed to accept provisions of Act unless notice is given to the contrary. Em- ployer not accepting must post notice in place of business, and file dupli- cate with Compensation Commissioner. Employer not accepting deprived of three common law defenses, but may avail himself of defense of vrilful negligence or intoxication of employee. Liability only for violence to physical structure of the body and disease or infection resulting therefrom; not for occupational disease, or contagious or infectious disease contracted ABSTEACTS, WORKMEN'S COMPENSATION LAWS. 879 during employment, or death from natural causes. Employer liable for rea- sonable medical and hospital attendance and n^edicines, not exceeding $200. In case of dismemberment or major surgical operation employee may desig- nate surgeon. No other compensation for first week unless disability con- tinues six weeks, then from date of injury. Compensation: For total disa- bility, for first 300 weeks 66%% of wages; not more than $15 nor less than $6 per week, \or full amount of wages if less than $6; after 300 weeks for remainder of life 45% of wages, but not more than $12 nor less than $4.50 per week or full wages if less than $4.50. For partial disability 66%% of difference between wages at time of injury and earning power afterward, but not more than $15 per week, nor for more than 300 weeks. For perma- nent injury from certain mutilations 66%% of wages for periods specified in schedule, but not more than $15 per week nor less than $6, or full amount of wages if less than $6. — For death from injury, — to persons wholly depend- ent, 66%% of wages, not more than $15, nor less than $6 or full amount of wages if less than $6, for not exceeding 350 weeks. If no one wholly de- pendent then to persons partially dependent the proportion of above benefit that amount contributed by deceased bore to his whole wages. In either case burial expenses $150, without deduction. Compensation to alien depend- ents, widows, children and parents, non-residents of U. S., the same, but within one year may be commuted into lump sum of two-thirds of future in- stalments. No compensation to alien widowers, brothers and sisters, not residents of IT. S. In case of death resulting from injury, before expiration of period for disability payments, dependents entitled to death benefit as if death had been immediate, deducting disability compensation already paid. No agreement by emplGyee to waive rights valid. Unless employer has no- tice or knowledge of injury notice must be given as soon as practicable. Claim for compensation must be made within six months after accident, or death, or after removal of physical or mental incapacity. Claim barred unless within one year after accident, or after death, partieg have agreed upon compensation payable, or one of them has filed petition to determine same. Employer may insure his liability, and employee may then, make claim directly on insurer. NEVADA. Act applies to aU employers and their employees, except those engaged in: agricultural labor, stock or poultry raising, or household domestic service; but employers and employees in excepted classes may come under Act by filing acceptance with Industrial Commission. Parties bound by Act cannot waive its provisions. Injured employee entitled to receive as accident bene- fits medical, surgical and hospital treatment, nursing, and medical and sur- gical supplies, including artificial limbs, needed within ninety days after accident, or one year if ordered by Commission. Employer may collect from employees one-half cost of accident benefits, not exceeding $1 per month from each. Compensation : — In case of death, burial expenses not exceeding $125. To widow with no child 30% wages of deceased until death or remar- riage, and on remarriage two years' compensation in one sum. To widower with no child 30% average wage, if wholly depe;ndent, until death or remar- riage. To widow or widower with child or children 10% additional for each 880 ABSTEACTS, WOBKMEN'S COMPENSATION LAWS. child until eighteen, and in case of parent's subsequent death each child's share increased to 15%; total amount not to exceed 66%% of wages. To each surviving child or children under 1 8, if no widow or dependent widower, 15% of wage, not to exceed in all 66%%. If no such widow, widower or child, to parent wholly dependent, 25% monthly wage during dependency, or to both parents 35%; to brothers or sisters under 18, if one is wholly dependent, 20% monthly wage for support of such brother or sister until 18; if more than one dependent brother or sister 30% to be divided among them,; if none wholly dependent, but one or more partly dependent 10%' among them. In other cases of total or partial dependence question to be determined by facts, but payments to partial dependents not to exceed 100 months. Basis of computation of wages not to exceed $120 per month. In case of death of any specified dependent before expiration of term for com- pensation, burial expenses not exceeding $125. For temporary total disability, if no one in IT. S. totally dependent on workman, 60% average monthly wage, not more than $72 nor less than $30 per month during disability, not exceed- ing 100 months, or $7,200 ; if any total dependents $10 per month additional for each. For permanent total disability 60% average monthly wage, not less than $30, nor more than $60 for life. For partial disability 60% of difference between wages earned before, and earning power after accident, not more than $40 per month, for not exceeding 60 months. Basis of com- putation not to exceed $120 per month. For certain specified injuries, disa- bility deemed permanent, and' compensation 50% average monthly wage, not less than $30 nor more than $60 in addition to compensation for temporary total disability for periods specified in schedule. For permanent disflgnre- meht of head or face, including injury to or loss of teeth. Commission may allow reasonable compensation for not exceeding 12 months. Compensation begins at end of one week, but if disability lasts two weeks is reckoned from date of injury. Claim must be made within one year. State Insurance Fund formed by assessment of premiums upon all employers according to schedule in Act, and all claims paid from this Fund. NEW HAMPSHIRE. Act applies only to workmen engaged in manual or mechanical labor in , certain dangerous employments, viz : steam or electric railroads ; mills, factories, etc., where machinery is operated by steam or other mechanical power and where five or more persons are employed; electric wires or ap- paratus; use of gunpowder or other explosive or steam boiler, provided in- jury is occasioned by explosion; quarries, mines and foundries. No com- pensation for injury not disabling workman for more than two weeks, or caused by his intoxication, violation of law, or serious or vrilful misconduct. Employer who files with Commissioner of Labor acceptance of Act and sat- isfies him of ability to comply with its provisions, or gives security, is not deprived of common law defenses, except in case of wilful failure to comply with statutory or legal requirements. Employer may revoke acceptance by filing declaration with Commissioner of Labor and posting notices in factory, etc. Injured employee may elect between action for damages or compensation under Act, but resort to one excludes the other. Com- ABSTRACTS, WOBKMEN'S COMPENSATION LAWS. 881 pensation: — 1. In case of death; (a) To persons wholly dependent, 150 times average weekly earnings; (b) To persons partially dependent, such portion of above death benefit as amount contributed to such depend: ents by deceased bears to his whole earnings, (c) If no dependents, expenses of medical attendance and burial, not exceeding $100. 2. In case of total or partial incapacity for work, weekly payment, commencing two weeks after injury, during such incapacity, not exceeding one-half of aver- age weekly earnings, measured by difference between wages before injury and earning ability afterwards, and not exceeding $10 per week for 300 weeks. No compensation until notice is given. Notice must be given as soon as practicable, before workman has voluntarily left employer's service and during disability, and claim within six months after accident or death, or after removal of physical or mental incapacity to give notice, but want of notice no bar to claim unless employer prejudiced thereby. Disputed claims referred by petition in equity to superior court. Provision is made for Employers Mutual Liability Association. NEW JERSEY. All employers and their employees presumed to accept provisions of the Act unless notice is given, to the contrary. May withdraw on 60 days no- tice. No compensation where injury is intentionally self-inflicted or caused by intoxication of employee. Employers not accepting provisions of Act deprived of three common law defenses. Compensation: — 1. During first twenty-seven days medical and hospital services and medicines not exceeding $50, but in severe cases Commissioner may on petition order additional serv- ices, artificial limbs, etc., to $200 and extend time to 17 weeks. 2. In case of death, (a) Expenses of last sickness not exceeding $200, and cost of burial not exceeding $100. (b) For one actual dependent 35% of wages, and 5% for each additional one up to five; for six or more 60%; to be distributed according to order of Workmen's Compensation Bureau. Payments to chil- dren only while under 18, and to other dependents except husband,, wife and step-parents, only to those under 18 or over 40 unless physically or men- tally incapacitated. Death benefits not less than $6 nor more than $12 per week, for 300 weeks, but full wages if less than $6. Compensation not paya- ble to alien dependents not residents of U. S. 3. For total permanent disa- bility 66%% of wages, not less than $6 nor more than $12, or full wages if less than $6, during disability, not exceeding 400 weeks. For partial perma- nent disability compensation based on extent of disability subject to maxi- mum and minimum as above ; for certain bodily mutilations 66%% of wages for from 5 to 200 weeks as per schedule. 5. For temporary disability 66%% of wages, subject to maximum and minimum as above, for not more than 300 weeks. Special provision as to hernia. Total number of weekly payments not to exceed 400 in any case. Unless' employer has actual knowledge of accident or notice within 14 days, no compensation due till notice given or knowledge obtained. If notice or knowledge within 30 days, failure to give earlier notice no bar except to extent that employer is prejudiced thereby. If no notice given or knowledge obtained within 90 days no com- pensation allowed. Question of liability and compensation determined by 56 882 ABSTRACTS, WORKMEN'S COMPENSATION LAWS. petition to Workman's Compensation Bureau. Claim barred unless within one year parties have agreed on compensation or petition filed. Award may be reviewed after one year if incapacity of injured employee has increased or diminished. Periodical payments may by special leave of court be com- muted into lump sum and employer may at any time after award pay whole amount of future instalments to savings bank, etc., in trust for employee and be relieved of further liability. No agreement to waive rights to com- pensation under Act is valid. Employer must satisfy Commissioner of Banking and Insurance of permanence and financial standing of his busi- ness, or insure liability in some authorized company; penalty for failure to do so. He must also post notices in place of business stating method of securing compensation., NEW MEXICO. Act applies only to employers of four or more workmen, engaged in cer- tain "extra-hazardous" occupations. Employers and workmen in other occupations may become subject to Act by written agreement filed in ofSce of clerk of district court. Workmen injured while working on scaffold, etc., ten feet above the ground included, without regard to number employed. Both parties presumed to accept provision^ of Act unless notice to contrary is given before accident. Employers rejecting Act. deprived of three com- mon law defenses, but these defenses open to employer accepting, as against employee rejecting. Employer must file in ofSce of clerk of district court policy of insurance or guarantee company, or bond, or other security for payment of compensation, with post-office address of each party thereto, or must satisfy judge that he is financially solvent; failure to do so punisha- ble by fine. Compensation: For first two weeks, surgical, medical and hospital services and medicines, not exceeding $50; and thereafter as fol- lows: For total disability 50% of earnings not exceeding $12 per week nor less than $6, or full amount of wages if less than $6, for not exceeding 520 weeks. If death from injury results within a year: (1) If there be no dependents funeral expenses not exceeding $75, and any amounts paid for disability. (2) If there are dependents, funeral expenses $75, and per- centages of average weekly earnings for 300 weeks from date of injury as follows : To child or children, if no widow or widower, 25% earnings, with 10% additional for each child in excess of two, and maximum of 60%; to widow or widower, if no children, 40%, not exceeding $12 per week; to widow or widower with one child, 45%, with 5% for each additional child, not exceeding 60%; if no widow, widower or children, to father or mother, or both, dependent to any extent, 20% ; if none of foregoing, to brother or sister dependent to any extent 15% and 5% for each additional brother or sister, with maximum of 25% ; to partial dependents not exceeding amounts contributed by deceased. Earnings in death compensation not taken to ex- ceed $30 per week, nor less than $12, unless actual earnings less than $12. For disability partial but permanent — for certain mutilations 50% earnings for times specified in schedule, subject to maximum and minimum as above. For permanent disfigurement of face or head $500 additional may be allowed. For hernia, if workman elects operation $50 allowed for operating fee. Com- pensation may be reduced or suspended if workmen persists in unsanitary ABSTRACTS, "WOEKMEN'S COMPENSATION LAWS. 883 or injurious practices or refuses to submit to treatment essential to promote recovery. Unless employer or agent having charge of work has actual knowledge of injury, written notice must be given within two weeks, or at most within sixty days, and claim made within sixty days or in case of death, within one year. No compensation to relatives or dependents not residents of XI. S. at time of injury. Employers may form mutual insur- ance companies to insure liability. NEW YOEK. Act applies only to 45 groups of "hazardous occupations," including nearly all industries in the State, and all other employments in which four or more persons are regularly employed in same business or establishment either on or away from plant of employer, excepting farm laborers and do- mestic servants, and occupation, not conducted for pecuniary gain. Em- .ployees of State, counties, etc., not included. No compensation for acci- dent due to wilful intention of employee to injure himself or another, or to intoxication. Compensation provided in Act exclusive remedy, except that if employer fails to secure payments by insurance or otherwise, em- ployee may elect between compensation and damages at law, and in latter case employer deprived of three common law defenses. Compensation: ■ — 1. Medical, nursing and hospital services, medicines, etc., for 60 days or longer, if Xlommission so requires; no other compensation for two weeks. 2. In case of death, (a) Funeral expenses $100. (b) To surviv- ing wife or dependent husband 30% of average weekly wages during widow- hood or dependent widowerhood, and 10% additional for each child while under 18, not exceeding in all 66%%. On re-marriage two years' compen- sation, (c) If no surviving wife or dependent husband 15% for each child while under 18, not exceeding 66%%. If whole 66%% is not absorbed by above payments, balance to grandchildren, brothers and sisters, 15% each while under 18, and parents and grandparents 15% each during dependency. Limit of wages for computing death benefit $100 per month. 3. For total permanent disability, 66%% of average weekly wages, during disability. 4. For total temporary disability 66%% during continuance of same' not ex- ceeding $3,500. 5. For partial permanent disability 66%% of average weekly loss of wages, and for certain specified mutilations same percentage for periods of from 15 to 312 weeks. 6. For partial temporary disability 66%% of average weekly loss of wages during continuance of same, not ex- ceeding $3,500. In case of death any unpaid balance of disability compensa- tion not exceeding $250 payable to surviving wife, husband, children or other dependents. Notice of injury must be given to State Workmen 's Com- pensation Commission and to employer within 10 days, or in case of death within 30 days thereafter. Faihire to give notice bars claim unless ex- cused. Claim, barred unless made within one year after accident or death. Decision of Commission on question of fact final. No agreement of em- ployee to pay part of liability premium or to waive right to compensation valid. Employer must secure compensation to employees by insuring in State fund, or in approved stock or mutual company, and filing copy of policy with Commission, or by furnishing satisfactory proof of ability to 884 AB8TEACTS, WOEKMEN'S COMPENSATION LAWS. pay compensation, and must post notice of fact about place' of business. Employer insuring in State fund relieved of all liability. State insurance fund formed from premiums assessed on basis of pay-roll upon employers at rates fixed for different groups by Commission. Provision also for Em- ployers' Mutual Liability Companies of 40 or more employers, having 2,500 employees. OHIO. Act obligatory upon the State, counties, etc., and on a,ll other employers of five or more workmen, in same business or establishment, but not includ- ing persons employed casually and not in usual course of employer's busi- ness. Every employer required to contribute to State Insurance Fund an- nual premiums, in proportion to amount of wages paid by him, at rate fixed by State Liability Board of Awards for business in which he is engaged; except that employers who agree to abide by rules of Board, and are of suflS- cient financial ability to make compensation certain, may maintain benefit funds or departments, either alone or jointly with other employers, and pay directly to injured employees, in which case benefits must be equal to those in Act. No other form of insurance permitted. Employer complying with foregoing provisions not liable to action for damages, provided notice be given to employees, except that for wilful injury by employer or agent, employee may elect between compensation under Act, and action for dam- ages, but in latter case defenses of contributory negligence and negligence of fellow employee will, be open to employer. Employer not complying not entitled to benefits of Act, and deprived of three common law defenses. Compensation: — 1. In case of death within two years: (a) To persons wholly dependent, 66%% of average weekly wages for remainder of period between date of death and eight years after date of injury, not less than $2,000 nor more than $5,000. (b) To persons partly dependent, same bene- fit for such portion of such' eight years as Board may determine not exceeding $5,000. 2. In case of permanent total disability 66%% of aver- age weekly wages for life, not less than $5 nor more than $12 per week, but whole wages if less than $5. 3. Por partial disability 66%% of im- pairment of earning capacity during continuance thereof, not exceeding $12 per week or $3,750. For certain specified mutilations, 66%% of weekly wages for from 10 to 200 weeks, subject to maximum limitation as abovs. 4. For temporary disability 66%% of weekly wages while disability is total, not less than $5 nor more than $12 per week, but whole wage if less than $5, f 01 not more than 6 years or $3,750. In addition to above, medical, nursing and hospital services and medicines not exceeding $200, except in special cases, and in case of death, funeral expenses not exceeding $150. — No other compensation for first week. No agreement by employee to waive rights under Act or to pay part of premium valid. All questions of liability and manner of payment determined by Board, who have power to modify awards if subsequent conditions so require. OKLAHOMA. Act applies only to employers of more than two workmen, engaged in manual or mechanical work in certain "hazardous employments." Does ABSTEACTS, WORKMEN'S COMPENSATION LAWS. ggS not include agricultural, horticultura/ or retail mercantile pursuits, dairy or stock raising, and provides only for "accidentaJ injuries arising out of and in course of employment, and such disease or infection as may naturally or unavoidably result therefrom." Contractor liable to employees of sub- contractor. Liability under Act exclusive, but if employer has failed to secure compensation employee may sue for damages, and employer deprived of three common law defenses. No liability where injury is caused by wil- ful intention of employee to injure himself or another, or failure to use guard against accident, or directly from intoxication. Employer must se- cure compensation either, 1. by insurance in stock or mutual company; 2. by scheme of compensation entered into by agreement with employees and subject to approval of Commission; or 3. by furnishing proof to Industrial Commission of financial ability to pay, in which latter case security may be required. He must post notices in places of business that he has complied with rules of Commission and secured payment of compensation. Compen- sation: — Medical, surgical and hospital services, medicines, etc., for sixty days, and such further time as Commission may determine, not exceeding $100 unless approved by Commission. No other compensation during first seven days unless disability continues for twenty-one days, then from date of accident. No compensation in case of death. For permanent total disability 50% average weekly wages during continuance thereof, not exceeding 500 weeks. For temporary total disability, the same, not ex- ceeding 300 weeks. For permanent partial disability 50% weekly wages for periods specified in schedule of injuries. In other cases of partial disa- bility, permanent or temporary, 50% of difference between average weekly wages before injury, and working capacity afterwards, for not exceeding 300 weeks. All above payments subject to maximum of $18 per week, and minimum of $8, or full wages if less than $8. — Notice must be given to em- ployer and Commission within 30 days after injury, and claim must be made within one year. Claim not assignable and exempt from execution. No agreement of employee to pay premium or waive right to compensation valid. OREGON. Act applies to all employers in certain "hazardous" occupations unless notipe is given annually to the contrary. Others may by giving notice ac- cept its provisions. Employers not under Act deprived of three common law defenses. Employer under Act may set up these defenses against em- ployee rejecting it. Occupations classified and employer required to pay monthly to Industrial Accident Commission for Industrial Accident Fund, percentage of monthly payroll specified for his class; also to collect from each employee and remit with his own payment one cent per day for each day employed. Provision for diminishing rate of contribution by employer when payment for injuries to his workmen are less than half of contribu- tions. Compensation: — ^First aid, transportation, hospital, surgical and medical service, etc., not to exceed $250 without approval of Commission. 1. In case of death, (a) Expense of burial $100. (b) To widow or invalid widower monthly payment of $30 for life or until re-marriage, and $8 for each child under 16, but total amount not to exceed $50. On re-marriage 886 ABSTRACTS, "WORKMEN'S COMPENSATION LAWS. ■widow receives $300. (e) If no wife or husband, monthly payment of $15 to each child under 16, but total not to exceed $50. Child under 16 and over 15 entitled to payments for one year, (d) If only other dependents, monthly payment to each equal to half of average monthly support received by each from deceased during preceding 12 months, not exceeding for all dependents $30 per month. Payments to other dependents cease at 16, daughter at 18. (e) If workman under 21 and unmarried, $25 per month to parents until he would have been 21, and thereafter payments as above to dependents. If widow or widower die leaving children under, 16, share of latter increased to $15 per month until 16, not exceeding $50. 2. In case of permanent disability: (a) If unmarried, $30 per month, (b) If worker have wife or invalid husband, $35; if husband not invalid $30. (c) If worker have wife or husband and child under 16, or being widow or widower hav« child under 16, monthly payment of $8 additional for each child until 16, not exceeding $50 in all. (d) If worker die during total disability, $30 per month to widow or widower until death or re-marriage, and $8 per month for each child until 16; to child left orphan $15 per month until 16 — ^not exceeding' $50 per month. Special provisions for hernia. 3. For total temporary disability, payments as above while total disabiltiy continues, in- creased one-half for first six months, but'^monthly payment in no case to ex- ceed 60% of monthly wage. If disability becomes partial only and tempo- rary, for not exceeding two years, proportion of total liability payment which former earning power bears to that after injury. 4. For permanent partial disability $25 per month for periods |Varying from 4 to 96 months as per schedule of injuries, with provisions in certain cases for commutation to lump sum. Claim in non-fatal cases must be filed within three months after injury, and in fatal cases within one year. For insanitary or injurious practices retarding recovery, or refusal to submit to necessary medical or surgical treatment, compensation may be suspended or reduced. Individual employer or member of employing firm or corporation may, on written ap- plication to Commission become entitled to compensation as a workman on basis of wages and contribution to be fixed by Commission. PENNSYLVANIA. Both employer and employees conclusively presumed to have accepted, pro- visions of Act unless notice to contrary with proof of service is filed with Bureau of Accident Compensation within ten days after service and before ' accident. Either party may withdraw by giving the other sixty days' no- tice, to be filed as above. Act does not apply to persons casually employed, or not in regular course of employer's business, or outworkers, but includes laborers hired by employee or subcontractor in performance of employer's regular business. "Injury" construed to mean "only violence to physical structure of the body and such disease as naturally results therefrom. ' ' Em- ployer must insure payment of compensation by insuring in State Work- men's Insurance Fund, or in some authorized company, or satisfy Bureau of his financial ability. If employer fails to comply with provisions of Act, injured employee may by written notice within 30 days after accident, elect between compensation under Act and action for damages; in latter ABSTRACTS, WORKMEN'S COMPENSATIOlSr LAWS. 887 case employer deprived of three conAnon law defenses. Compensation: — Tor first fourteen days, only surgical, medical and hospital services, medi- cines, etc., not exceeding $25 or, in case of major surgical operation, $75. In case of death, to children, if there be no widow or dependent widower, 25% of wages and 10% additional for each child in excess of two, not ex- ceeding 60% in all; to widow or widower without children 40%; to vridow or widower with one child 45%, with 5% for each additional chUd, not ex- ceeding 60% ; if no widow, widower or children, to dependent .father and mother, or the survivor, 20% ; if none of foregoing, to dependent brothers and sisters, 15% for one, and 5% for each additional one, not exceeding 25%. Children, brothers and sisters only while under 16. In all cases ex- penses of last sickness and burial," not exceeding $100. Wages not taken to exceed $20 per week, or less than $10. Compensation for 300 weeks, and for child beyond that time until 16 at rate of 15% for one, and 10% for each additional one not exceeding 50% in all. For total disability, for first 500 weeks after 14th-day, 50% of wages, not less than $5 nor more than $10, or full wages if less than $5, not exceeding $4,000. For partial disability — for certain specified injuries, 50% of wages for periods specified in sched- ule, subject to maximum and minimum; in other cases 50% of difference between wages before and after injury, not more than $10 per week for 300 weeks. Compensation to alien widows and children not residents of U. S. tworthirds of amounts to residents. None to other non-resident aliens. Unless employer have actual knowledge of accident or notice given within 14 days, no compensation due until such knowledge or notice. All claims barred in one year unless amount of compensation is agreed upon or petition filed. PORTO RICO. Act applies to all laborers, except farm laborers not' working on power- driven machinery or on work where animal power is used, domestic servants, and clerical workers in offices and commercial establishments where ma- chinery is not used. Does not apply to employer regularly employing less than three laborers, nor to any laborer whose wages exceed $1,200 per annum. Compensation paid from Workmen's Relief Trust Fund, formed by premiums assessed upon employers by Commission, based on amount of pay- roll. Occupations classified, and rate of premium fixed for each class. Every employer must, prior to July 15, of each year file with Workmen's Relief Commission statement showing number of employees, and total amount of wages, and keep register showing name, age, and sex of each laborer, nature of work and wages paid to each. . Within five days after any accident, he must report to Commission name of employee injured and date and nature of injury. Failure to file statement or report punishable by fine. Employer failing to file reports or pay premium deprived of three common law defenses and defense of negligence of contractor not insured under the Act. Employee may waive provisions of Act and recover dam- ages for injuries caused by illegal act or gross negligence of employer. Compensation: — ^Medical attendance, medicines and sustenance as may be prescribed, including necessary hospital service; any money advanced for food or medicine after allowance of compensation to be deducted from 888 ABSTEACTS, WORKMEN'S COMPENSATION LAWS. compensation awarded. Per temporSlry disability one half of wages until cured, but not exceeding 104 weeks, and not less than $3 per week, nor more than $7. For partial disability for permanent work, not less than $1,300, nor more than $2,500, graded in proportion to rate of wages. For perma- nent total disability, not less than $2,000 nor more than $4,000, graded as above. For death within one year, to dependent widow or widower and legitimate children and grandchildren (and in proper eases to illegitimate), and in default thereof to dependent parents, and if none to nearest de- pendent relative, $3,000 to $4,000 as maximum, graded according to earn- ing capacity of deceased and number of persons entitled to compensation. In exceptional cases of extremely dangerous occupation, rate of insurance may be raised to maximum of ten per cent. Applications for compensation must be made within 90 days after accident or death. If not made within 90 days Commission must investigate reason, and if not made because of ignorance or other reason not under control of party concerned, 30 days additional allowed. No application denied on account of limitation unless it is clearly shown that party was notified of his rights. No compensation for workman injured while wilfully intending to commit crime, or to in- jure another, or voluntarily bring injury upon himself, or where intoxica- tion was the cause, or injury was caused by criminal act of third person, or was solely due to workman's negligence. Bights under Act not assigna- ble or subject to attachment. RHODE ISLAND. Employer not electing to come under Act deprived of three common law defenses. Act does not apply to employers of five or less workmen in same business unless they elect to come in, nor to employees in domestic service or agriculture. Employer to file acceptance with Commissioner of Indus- trial Statistics, and post notices to employees. Acceptance operates for one year, and from year to year thereafter unless notice: of withdrawal is given within 60 days of the expiration of a year. Employee is assumed to accept unless he gives notice. No compensation for injury resulting from wilful intention or intoxication. No compensation for first two weeks, but if in- capacity extends beyond four weeks compensation begins from date of in- jury. Employer must furnish reasonable medical and hospital 'services and medicines, but employee may select physician or hospital, which must within seven days notify employer and present claim for services within three months after conclusion thereof. Compensation: — 1. In case of death, (a) To dependents one-half of average weekly wages, not less than $4 nor more than $10 for 300 weeks. If dependent be widow, on her death 'compensa- tion payable to children under 18, or over 18 if incapacitated, (b) To per- sons partially dependent, proportion of benefits as above equal to propor- tion of annual earnings of deceased paid to such dependents, (c) If no dependents, expenses of last sickness and burial not exceeding $200. 2. In case of total disability, one-half of average weekly wages, not less than $4 nor more than $10 per week for 500 weeks. 3. Partial disability, difference between average weekly earnings before and after injury, not more than $10 per week for 300 weeks. In addition to other compensation specific ABSTEACTS, WORKMEN'S COMPENSATION LAWS. 889 payments for limited times for certain specified mutilations. Notice of injury must be given within 30 days and claim made within one year after injury, or after death. Want of notice no bar if employer had no- tice of accident. No agreement of employee to waive rights under Act valid, and claims not assignable or liable for debt. Payments after six months may be commuted to lump sum on application to court. Agreement of parties as to compensation may be filed in Court and enforced by process. If no agreement, proceedings by petition to Superior Court. Alternative schemes for compensation by agreement between employer and employees permitted, subject to approval of Court, provided benefits be equal to those under Act. Employer must secure compensation .either, 1. by insurance in authorized company; 2. by furnishing proof to Commission of financial' ability to pay directly to employee; 3. by furnishing security; 4. by com- bination of last two plans. In case of failure to do so, injured employee may .elect between provisions of Act and action for damages, election to be given in writing to employer within 30 days. The provisions of the Act, except as to compulsory insurance, have been extended to State and muni- cipal employees. SOUTH DAKOTA. Act applies to State and municipal corporations as well as private em- ployers, and is presumed to be accepted by every employer and employee unless notice in writing is given to the contrary. Does not apply to casual laborers or one not employed in usual course of employer's business, to agricultural laborers or domestic servants. Employer electing not to oper- ate under Act deprived of three common law defenses, but these defenses open to employer electing as against employee not , electing. No compensa- tion for injury or death due to employee's wilful misconduct, including in- tentional self-inflicted injury, intoxication, wilful failure to use safety ap- pliance, or to perform duty required by statute. "Injury" construed to mean accidental injury, not including disease except as resulting from in- jiiry. Compensation: — ^For death, if employee leaves widow or children whom he was under obligation to support, sum equal to four times annual earnings, not less than $1,650 or more than $3,000. If no sum so payable, then same amount to dependent parent, grandparent, brothers or sisters. If nothing payable as above, then to dependent collateral heirs suci percentage of above sum as amount contributed by deceased during preceding two years bore to whole earnings. If nothing payable under above provisions, burial expenses not exceeding $150. Payment to personal representative of de- ceased or to beneficiaries, and distributed in proportion to degree of de- pendence on earnings of deceased. For injury not resulting in death. — (a) Necessary first aid, and medical, surgical and hospital service for four weeks, not exceeding $100. (b) No compensation for disability less than two weeks, but if it continues for eight weeks compensation computed from date of injury, (c) Special compensation for services and permanent disfig- urement of hand, head or face, not accompanied by disability, (d) For cer- tain specific mutilations, 50% of average weekly wage for times specified in schedule; in other cases of partial disability one-half of difEerence be- tween earning capacity before and after injury. For permanent complete 890 ABSTRACTS, WORKMEN'S COMPENSATION LAWS. disability fifty per cent, of earnings not less than $6 nor more than $12 per week, from date of injury until amount equals death benefit. In case of death before payments completed, unpaid balajjce payable to persons en- titled to death benefits as above, not exceeding $500. In no case payments exceed 50% of weekly wages, or $12 per week, nor except in case of com- plete disability, extend beyond six years. Unless employer have actual knowledge of injury or death, or employee prevented by physical or mental incapacity, written notice must be given at once; if not given within thirty days, and no reasonable excuse no compensation payable. Claim for com- pensation barred unless made within one year after injury or death. Em- ployer must insure liability in some authorized company or give security, or satisfy Commissioner of financial ability to pay compensation directly. TEXA.S. Employers not subscribers to Texas Employers' Insurance Association, or otherwise insuring liability, deprived of three common law defenses, unless injury is caused by ^ilful intention of employee or by his intoxication; but plaintiff! must prove negligence of employer or his agent. Act does not apply to employers of less than three employees, nor to domestic servants,' farm laborers or railway employees. Employee of subscriber held to have waived right of action under common law or statute, unless he gives no- tice, and then subject to all defenses. "Injury sustained in course of em- ployment ' ' means ' ' damage or harm to the physical structure of the body and such diseases or infection as naturally result theref roiji. " Does not include injury caused by act of God, unless employee exposed to greater hazard than the general public, noi* by fict of third person not directed against employee because of employment^ nor received while in state of in- toxication, nor caused by employee's wilful intention and attempt to injure himself or some other person, but includes all other injuries received in em- ployer's business, whether on employer's premises or not. Exemplary dam- ages in addition to compensation may be recovered in a'ction at law against employer when death is caused by his wilful act or gross negligence. No compensation for first week, but Association must furnish reasonable, med- ical and hospital services and medicines for two weeks, and for such further time as attending physician, from week to week, certifies that same is nec- essary. Compensation: — I. In case of death, weekly payment equal to 60% of average weekly wages, not less than $5 nor more than $15 per week for 360 weeks, for the benefit of surviving wife or husband and minor children, without regard to dependency, dependent parents, grandparents, stepmother and children, or brothers or sisters, to be distributed according to the law of descent and distribution of the State, but not- subject to debts of de- ceased, or of beneficiary. If no beneficiaries, expenses of last sick- ness and funeral benefit of $100. 2. In case of total incapacity, 60% of average weekly wages, not less than $5 nor more than $15 for 401 weeks. 3. While incapacity is partial, 60% of difference between average wages before injury and earning power afterwards, not exceeding $15 per week for 300 weeks, nor for total and partial incapacity more than 401 weeks. For certain specified mutilations 60% of average weekly wages not less than $5, ABSTEACTS, WORKMEN'S COMPENSATION LAWS. 891 nor more than $15 per week for periods stated in schedule. In any case in which operation will afEect a cure or improve condition Association or em- ployee may demand such operation, and in such operation being found by Industrial Accident Board to be advisable, employee bound to submit to operation and Association to provide and pay expense of same, including hospital treatment, etc. If employee refuse, compensation suspended. Spe- cial provision in regard to hernia. No agreement of employee to waive rights under Act valid. Periodical payments may be commuted to payments of lump sum with approval of Board, which has jurisdiction over all matters relating to operation of Act. Texas Employers' Insurance Associa- tion authorized with not less than 50 subscribers, employers of not less than 2,000 employees, under supervision of State. On giving notice of member- ship to employees, employers not liable to suits for damages; compensation paid by Association. Insurance also permitted by other Companies, subject to provisions of Act, and policy-holder has same rights as subscriber to' Association. UTAH. Act applies to State, county, city, town and school districts, and to all private employers of three or more workmen in same business. Does not apply to agricultural laborers and domestic servants or persons casually em- ployed, or not in employer's usual business. Those employing less than three may come under terms of Act. "Personal injury" does not include dis- ease except as resulting from injury. State Insurance Eund formed by premiums paid by employers insuring in said fund. Private employer must secure compensation by insuring in State insurance fund, or in au- thorized stock or mutual coinpany, or by furnishing Commission satisfac- tory proof of financial ability to pay directly. In latter cases he must post notices of fact in his place of business. Employer securing compensa- tion not liable to action for injuries not resulting in death. Employer not se- curing compensation liable to action for damages by injured employee, and deprived of three common law defenses. In case of injury caused by wil- ful misconduct of employer, employee may elect between action for dam- ages and compensation under Act. Eor injuries resulting in death right of action remains, but all defenses open to employer; but rfepresentatives of employee may waive right of action and accept benefits of Act. Compensa- tion: — Medical, nursing and hospital services and medicines not exceeding $500 and in case of death funeral expenses not exceeding $150. No other compensation during first three days. Eor temporary disability 60% average weekly wages while disability is total, not exceeding $16 per week, nor less than $7, but in no case for more than six years or exceeding $5,000. — Eor partial disability, during such disability, and for not exceeding six years, 60% of difference between wages before injury and those employee is able to earn afterwards, not exceeding $16 per week. Eor loss of certain parts of the body 60% of weekly wages not more than $16, — for periods stated in schedule, all subject to above maximum and not to exceed a total of $5,000, and for other disfigurement or loss, same percentage of wages, for not ex- ceeding 200 weeks. For permanent total disability, 60% weekly wages for five years from date of injury, and thereafter 45% until death, not exceed- 892 ABSTEACTS, WORKMEN'S COMPENSATION LAWS. ing $16 per week nor less than $7. In case of death within three years, — if no dependents, burial expenses, and $750 to State insurance fund unless em- ployer is insured in said fund. If there are wholly dependent persons, 60% weekly wages, not exceeding $16 per week- for remainder of period between date of death and six years after date of injury, not more than $5,000, nor less than $2,000. If there are partly dependent persons, 60% wages, not exceeding $16 per week, for such portion of said six years as Commission may determine, not exceeding $5,000. Benefits in case of death to be paid to one or more dependents for benefit of all dependents, as Commission may determine. Should dependent die or marry, right to compensation ceases. No agreement by employee to waive compensation or pay any part of premium valid. VERMONT. Act is elective, but election presumed unless prior to accident written no- tice is given to the contrary. Election may be terminated by 60 days' no- tice in writing. As against employee electing to come under Act, employer not electing deprived of defenses of assumption of risk, negligence of fellow employee and of employee himself. In suit by employee not electing Act against employer electing, all defenses are open to employer. Act applies to all State and municipal bodies and employees, other than officials elected by popular vote, or whose remuneration exceeds $2,000 per annum, and all industrial employments, other than domestic service, in which over ten per- sons are regularly employed, but others may come under Act by giving writ- ten notice to the Board. Persons employed casually or not in employer's trade or business excluded. "Personal injury by accident," etc., includes injury caused by wilful act of third person against employee because of employment, but does not include disease unless resulting from injury. No compensation for injuryi caused by employee's wilful intention to injure himself or another, or by his intoxication, or failure to use safety appa- ratus. Compensation: — In case of death within two years: burial expenses not exceeding $100; to dependent widow or widower with no dependent children, 33%% weekly wages, until re-marriage or death of widow, or during disability or on re-marriage of widower, not exceeding 260 weeks; to widow or wifiower and one or two dependent children, 40% or if three or more children, 45%; if no widow or widower, to dependent child or children, 25% and 10% for each child in excess of two, not exceeding 40% in' all, until 18, but not exceeding 260 weeks; if none of foregoing but par- ■ ents, if wholly dependent 25%, if partially dependent 15% ; if no dependent parent, but grandparent, same percentage; if none, but dependent grand- child, brother or sister, 15% for one and 5% for each additional one, with maximum of 25% ; in all latter cases during dependency, not exceeding 208 weeks; weekly wages taken as not over $25, nor less than $5, and total compensation for death not to exceed $3,500. In case of disability — first two weeks surgical, medical and hospital services and supplies not exceeding $100. Total disability — after one week 50% average weekly wages, not more than $12.50 nor less than $3 during disability or full wages if less than $3, for not exceeding 260 weeks. And not to exceed $4,000. Partial disability, 50% of difference between weekly wages before injury and probable amount ABSTRACTS, WORKMEN'S COMPENSATION LAWS. 893 afterwards, not exceeding $10, during disability, not exceeding 260 weeks. For certain mutilations 50% average weekly wages, for times specified in schedule. Notice of injury must be given to employer as soon as practicable, and claim made within six months, or within six months after death. Act is administered by Industrial Accident Board. Employer must secure pay- ment of compensation by insurance in approved insurance or guarantee com- pany or by depositing bond or other security with Board, or by satisfying Board of his financial responsibility, and must post notice in place of busi- ness that he has complied with this provision. Employer failing to secure compensation may be enjoined from doing business until provision is com- plied with. Agreement by employee to pay any part of cost of insurance void. VIRGINIA. Act applies to State and municipal corporations, and to persons and cor- porations having regularly in service eleven or more operatives in same business in the State. Does not apply to steam railroad employees, who are provided for by special Act, nor to casual employees, or those not in usual course of employer's business, nor to farm laborers or domestic servants. Other employers may voluntarily elect to be bound by Act. Term "injury" as used in Act means ' ' only injury by accident arising out of and in course of employment," and does not include disease unless resulting naturally and unavoidably from accident. Special provisions in regard to hernia. Every employer and employee presumed to accept provisions of Act unless notices given thirty days before accident or death, or at time of employ- ment if that be less than said thirty days. Employer's notice must be posted in shop, or served personally; employee's notice by personal serv- ice or registered mail. Either party may withdraw" by giving similar no- tice. Employer electing not to operate under Act deprived of three com- mon law defenses. Employer electing may defend on these grounds against employee not electing. If neither elects, rights same as though employer only rejected. No compensation for injury or death due to employee's wilful misconduct, including < intentional self-inflicted injury, or attempt to injure another, or intoxication, or failure to use safety appliance, or wilful breach of regulations approved by Industrial Commission. Claims for compensation have same priority as unpaid wages of labor, are not assignable and are exempt from attachment. Notice of injury given to employer as soon as practicable; no compensation prior to notice unless employer has knowledge of accident, except in case of- physical or mental incapacity or death. No compensation if notice is not given within 30 days, unless reasonable excuse is given and employer not prejudiced. Claim must be filed with Commission vnthin one year after accident or death. For thirty days after accident employer to furnish necessary medical attention, and may continue to furnish attending physician during continuance of disability, and necessary hospital services and supplies. No other compen- sation for first fourteen days. For total incapacity to work, weekly com- pensation equal to one half weekly wage, not less than $5 nor more than $10, not exceeding $4,000 in all, during such incapacity, not exceeding 500 . weeks. For partial incapacity, weekly compensation e